Health Care Complaints Commission v Wallach and Ors [2004] NSWSC 927

New South Wales Supreme Court

CITATION : Health Care Complaints Commission v Wallach and Ors [2004] NSWSC 927 revised - 19/10/2004 HEARING DATE(S) : 23 September 2004 JUDGMENT DATE : 8 October 2004

JUDGMENT OF : Barr J at 1 DECISION : Summons dismissed.

CATCHWORDS : Apprehended bias - first defendant a barrister and member of a professional tribunal - tribunal so constituted to hear and determine a case prosecuted by plaintiff - first defendant instructed as barrister for another defendant in another professional tribunal - plaintiff the prosecutor in both cases - whether reasonable apprehension of bias of first defendant. PARTIES : Health Care Complaints Commission v Irving Wallach in his capacity as Chairperson of the Nurses and Midwives Tribunal and Ors FILE NUMBER(S) : SC 30074/04 COUNSEL : Plaintiff:Dr J G Renwick P Singleton as amicus curiae SOLICITORS : Plaintiff: D Swain

- 17 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

GRAHAM BARR J

8 October 2004

30074/04 Health Care Complaints Commission v Irving Wallach in his capacity as Chairperson of the Nurses and Midwives Tribunal and Ors

JUDGMENT

The Statutory Framework 1 His Honour: There is a series of acts, including the Nurses and Midwives Act 1991("The Nurses Act") and the Psychologists Act 2001, whose objects include the protection of the health and safety of the public by providing means of ensuring that professional persons within their purview are fit to practise. The Acts provide for complaints against such persons to be received and considered and for disciplinary action to be taken where appropriate. By s8 Nurses Act there is a Nurses and Midwives Board. By s44 complaints may be made to the Board. By s45 the Board must refer any complaint to any one of a number of bodies set up under the act, including the Nurses and Midwives Tribunal ("the Tribunal"). Section 59 creates the Tribunal, which comprises a Chairperson or Deputy Chairperson, two nurses or midwives and one lay person. By s60 the Chairperson and a Deputy Chairperson must be a judge of the District Court or a legal practitioner of at least seven years' standing. Section 61 requires the Tribunal to conduct an enquiry into any complaint referred to it. Unless the Tribunal otherwise directs, the hearing of the complaint is to be open to the public. The Tribunal is not bound by the rules of evidence and may inform itself as it thinks fit. It has power to summon witnesses to give evidence and produce documents. It must hear and determine matters before it as soon as practicable. By s62 the nurse or midwife concerned and the complainant are entitled to attend the hearing and be represented by a solicitor or barrister or other adviser. When a complaint is found proved, s64 empowers the Tribunal to take any of a number of measures, ranging from a caution to directing the removal of the person's name from the Register or Roll of persons entitled to practise. By s66 the decision of the Chairperson on any question of law or procedure arising during an inquiry is the decision of the Tribunal for the purposes of the inquiry. In other respects a decision of at least three members of the Tribunal is the decision of the tribunal, but if two members support the decision and two oppose it the decision of the Chairperson is the decision of the Tribunal.