Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mohareb v Health Care Complaints Commission [2024] NSWCA 79 Hearing dates: 11 April 2024 Date of orders: 11 April 2024 Decision date: 11 April 2024 Before: Kirk JA at [1] Griffiths AJA at [2] Decision: By consent, the Court makes the following orders: 1. Set aside the orders (1) and (2) made by Justice Weinstein on 16 October 2023 in the proceedings below. 2. Declare that the review decision made by the Respondent on 25 November 2022 is invalid on the basis that the decision lacked a rational foundation in that it misunderstood the nature and function of the NSW Health Liability Panel, as being a body before which "formal proceedings" were underway at the time of the decision. 3. Order that the Respondent pay the Applicant's costs below and in this Court. 4. The Summons seeking leave to appeal in this Court, filed 10 January 2024, is dismissed. 5. The Summons in the court below, filed 9 December 2022, is otherwise dismissed. Legislation Cited: Health Care Complaints Act 1993 (NSW) s 27(1)(c) Cases Cited: Mohareb v Healthcare Complaints Commission [2023] NSWSC 1224 Category: Principal judgment Parties: N Mohareb (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: N Mohareb (Litigant-in-person) J Emmett SC/M Mellos (Respondent) Solicitors: Health Care Complaints Commission (Respondent) File Number(s): 2023/357459 Publication restriction: Nil. Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2023] NSWSC 1224 Date of Decision: 16 October 2023 Before: Weinstein J File Number(s): 2022/375297 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] ex tempore JUDGMENT (revised) 1. KIRK JA: I agree with Griffiths AJA. 2. GRIFFITHS AJA: It is appropriate that the Court explain why it is prepared to make orders by consent in this matter. The applicant, Mr Mohareb, filed a summons on 10 January 2024, seeking leave to appeal from orders and the judgment given by Weinstein J on 16 October 2023. His Honour's reasons for judgment are reported as Mohareb v Healthcare Complaints Commission [2023] NSWSC 1224. His Honour made the following orders on that day: (1) Pursuant to rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), the summons is dismissed. (2) The plaintiff is to pay the defendant's costs. 1. In brief, his Honour upheld the notice of motion filed by the Health Care Complaints Commission to have summarily dismissed Mr Mohareb's summons in the nature of judicial review against a decision dated 25 November 2022 by the Commission. That decision, which I will refer to as the "Review Decision", related to a complaint which Mr Mohareb had made about the medical treatment that he had received at the Royal North Shore hospital after he was the victim of a serious assault. 2. The complaint was treated by the Commission as having two aspects. The relevant aspect for the purpose of this proceeding is the complaint that I have just described. The Commission explained, in its letter dated 25 November 2022, that it had made a decision under s 27(1)(c) of the Health Care Complaints Act 1993 (NSW) to not continue dealing with Mr Mohareb's complaint on the basis that the matter was already under investigation by some other competent person or body or is the subject of legal proceedings. It is evident from the terms of that letter that the Commission, at that time, took the view that Mr Mohareb's complaint regarding RNSH was being considered in formal proceedings already underway by a body called the New South Wales Health Liability Panel (the Panel). 3. The hearing of Mr Mohareb's summons seeking leave to appeal was listed to be heard before Kirk JA and myself today. Shortly before the hearing commenced, the Commission proposed certain orders which would have had the effect of obviating the need to hear and determine Mr Mohareb's application for leave to appeal. The HCCC proposed the following orders: 1. The Court notes that the respondent accepts that: (a) the Review Decision made by the respondent on 25 November 2022, being a purported decision affirming the respondent's decision of 6 October 2022 to discontinue dealing with the applicant's complaint, should be treated as invalid and of no effect; and (b) the respondent will treat as still on foot the applicant's request for a review dated 10 November 2022 in respect of the respondent's decision made 6 October 2022. 2. The Court notes the respondent's undertaking that it will not take steps to enforce the costs order made by Justice Weinstein on 16 October 2023 in the proceedings below. 3. Leave to appeal is refused. 4. No order as to costs in this Court. 1. Mr Emmett, of senior counsel, explained that the Commission had only recently realised that the statements that it made in its letter dated 25 November 2022, regarding the Panel conducting a formal proceeding, which was already underway, were incorrect. On that basis, the Commission accepted that its Review Decision was invalid and of no effect, being tainted by a jurisdictional error. 2. After the proposed orders were discussed with the parties, including with Mr Mohareb who represented himself both here and in the proceeding before Weinstein J, the orders initially proposed by the Commission were varied. The parties indicated that, by consent, the Court should make the following orders: 1. Set aside the orders (1) and (2) made by Justice Weinstein on 16 October 2023 in the proceedings below. 2. Declare that the review decision made by the Respondent on 25 November 2022 is invalid on the basis that the decision lacked a rational foundation in that it misunderstood the nature and function of the NSW Health Liability Panel, as being a body before which "formal proceedings" were underway at the time of the decision. 3. Order that the Respondent pay the Applicant's costs below and in this Court. 4. The Summons seeking leave to appeal in this Court, filed 10 January 2024, is dismissed. 5. The Summons in the court below, filed 9 December 2022, is otherwise dismissed. 1. In circumstances where the declaratory relief which is sought identifies the basis for the Commission's acceptance that its decision dated 25 November 2022 is invalid in law, I consider that it is appropriate that those orders be made by consent. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2024