Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ostendorf (No 2) [2016] NSWCATOD 44 Hearing dates: 24 February 2016 and 5 April 2016 Date of orders: 14 April 2016 Decision date: 14 April 2016 Jurisdiction: Occupational Division Before: R Titterton, Senior Member A Bizzotto, Professional Member R O'Donnell, Professional Member Dr C Berglund, General Member Decision: 1 Pursuant to reg 9 of the Civil and Administrative Tribunal Regulation 2013, the orders of the Tribunal of 7 December 2015 are set aside, and in lieu thereof the Tribunal orders that the conditions set out in Attachment A be recorded on the applicant's registration maintained by the Australian Health Practitioners Regulatory Authority. 2 Pursuant to s 45 of the Civil and Administrative Decisions Act 2013 extend the time for the Health Care Complaints Commission to make its application to set aside and vary the orders of 7 December 2015 to 5 April 2016. 3 The respondent to pay the Health Care Complaints Commission's costs of the proceedings, other than the costs of and incidental to the hearings of 24 February and 5 April 2016. 4 There be no order as to costs in respect of the hearings of 24 February and 5 April 2016. Catchwords: Civil and Administrative Tribunal – Occupation Division – Power to review decisions already published – whether function of Tribunal administrative in nature Legislation Cited: Health Practitioner Regulation National Law (NSW) No. 86a Administrative Decisions Review Act 1977 Civil and Administrative Tribunal Act (2013) Civil and Administrative Tribunal Regulation (2013) Cases Cited: Attorney-Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 Campbelltown City Council v Vegan [2006] NSWCA 284 Health Care Complaints Commission v Ostendorf [2015] NSWCATOD 137 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ms Katrina Ostendorf (Respondent) Representation: Counsel: S Talbert (Applicant) Solicitors: Health Care Complaints Commission (Applicant in person) File Number(s): 1520033 REASONS FOR DECISION Introduction 1. Reasons for decision in this matter were published on 7 December 2015: Health Care Complaints Commission v Ostendorf [2015] NSWCATOD 137. 2. Following the publication of those orders, the Health Care Complaints Commission (the Commission) contacted the Tribunal to inform it that the orders made exceeded the jurisdiction of the Tribunal, having been made without power. The Commission invited the Tribunal to reconsider its orders. 3. A hearing was held on 24 February 2016. Prior to the hearing, the Commission had filed submissions in relation to why the orders of the Tribunal exceeded its jurisdiction, why the Tribunal had power to review the orders that it had made, in circumstances when the orders had already been published, and costs. 4. At the beginning of the hearing, the Commission informed the Tribunal that there was an additional issue. At the hearing of 7 December 2015, the Commission had informed the Tribunal, based on information obtained from the Australian Health Practitioners Regulatory Authority (AHPRA), that the respondent was not registered, and accordingly sought orders pursuant to s 149C of Health Practitioner Regulation National Law (NSW) (the National Law). However, it transpired that the respondent was registered at the time of the hearing and, accordingly, orders could not have been made pursuant to s 149C, only pursuant to s 149A. 5. The hearing was adjourned, so as to allow the Commission to put the respondent, who had not appeared at the hearing, on notice of the orders that it was seeking, and to provide the respondent with any document it proposed to rely on the next hearing, any communications from AHPRA. The Tribunal also suggested that the Commission communicate with the respondent the see if the parties could agree on amended orders pursuant to reg 9 of the Civil and Administrative Tribunal Regulation 2013. 6. That suggestion arose as a result discussion between the Tribunal and the Commission during the hearing as to the Tribunal's power to review orders already made, in circumstances where the reasons for the decision had been delivered. It is to be noted that both the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and the National Law provide, in effect, that orders of the Tribunal take effect on the day they are made or given (see s 61 of the NCAT Act: "A general decision or a decision determining an external or internal appeal takes effect on the date on which it is given or such later date as may be specified in the decision"; see s 165E of the National Law: "An order of the Tribunal under this Law takes effect on - (a) the day on which the order is made; or (b) the later day specified in the order. Section 165E is a "NSW provision" of the National Law). 7. The Commission relied on the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 as authority for the proposition that a tribunal was not functus officio by reason of having made a decision. The Commission relied on the statement of Gleeson CJ at [5] that: "There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent . . ." 1. The Tribunal expressed its doubts whether that principle was applicable to it, in that the High Court decision makes plain that it was considering the decision-making functions of an administrative body, namely the (then) Refugee Review Tribunal. As Gummow and Gaudron JJ stated: 51 There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition. 52 The view that a decision involving jurisdictional error does not prevent the decision-maker from correcting that error by making a later decision has been accepted by the Supreme Court of Canada. Thus, in Chandler v Alberta Association of Architects, Sopinka J, with whom Dickson CJ and Wilson J concurred, said: "As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances ... To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law." (Emphasis added; footnotes omitted; the insertion "[an administrative]" as in the original) 1. We note that a party may appeal from a "non-lawyer" decision of the Tribunal, sitting as the Occupational Division, to the Supreme Court, on any question of law, and with the leave of the Court on other grounds: cl 29(4)(b), Pt 6, Sch 5, NCAT Act. 2. Their Honours concluded, at [53], that the approach of the Supreme Court of Canada was correct. They considered that a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that was accepted, it followed that, if the duty of the decision-maker was to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeded to make what was, in law, no decision at all, then, in law, the duty to make a decision remained unperformed. 3. Ms Talbot for the Commission submitted that authorities such as Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 at [107] ff; Attorney- Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 at p 739 and Campbelltown City Council v Vegan [2006] NSWCA 284 supported the Commission's submission that the nature of the function being exercised by the Tribunal sitting in the Occupational Division was administrative, rather than judicial. 4. With respect, what Basten JA stated in Vegan, Handley and McColl JJA agreeing, was that, in the context of determining whether there was an obligation on a tribunal to provide reasons for its decisions, the classification of the functions of the tribunal as administrative or judicial remains an important element in the exercise (at [106]), and that, ultimately, the question must be approached as one of statutory construction (at [108]). 5. The NCAT Act distinguishes between a variety of decisions including, relevantly, administrative review decisions (being decisions of an administrator over which the Tribunal has administrative review jurisdiction (see s 7 of the Administrative Decisions Review Act 1977; s 30 of the NCAT Act) and general decisions (being decisions of the Tribunal determining a matter over which it has general jurisdiction: s 29 of the NCAT Act). Disciplinary proceedings under the National Law heard in the Occupational Division are heard in the Tribunal's general jurisdiction. 6. However, given the consent of the parties to set aside and vary the previous decision, it is not necessary to consider this question, as reg 9 gives the Tribunal the necessary power to set aside and vary its previous orders in the circumstances of this matter. 7. As a final comment on this issue, we note the following guidance given by Gleeson CJ in Bhardwaj at [11]: The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh? 1. We turn therefore to reg 9 of the Regulation. Reg 9, Civil and Administrative Regulation 2013 1. Regulation 9 relevantly provides as follows: 9 Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. . . . (2) The Tribunal may make an order under this clause of its own motion or on the application of a party. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made. (4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. . . . (7) If the Tribunal sets aside a decision under this clause, it may also set aside any orders that it made consequent on the decision that has been set aside. . . (9) This clause does not limit any power of the Tribunal to set aside, revoke or vary its interlocutory decisions or any other decisions that do not operate to determine proceedings. 1. At the hearing on 5 April 2016 the Commission filed an affidavit of Ms Jaimee Dinihan sworn 4 April 2016. That affidavit contained correspondence between the Commission and the respondent. Suffice it to say, on 29 March 2016, the respondent wrote to Ms Dinihan confirming that she agreed to all the orders that had been provided to her by the Commission at that time. 2. In the circumstances, the Tribunal considers it should set aside the orders it made on 7 December 2015 and in lieu thereof order that the agreed conditions be placed on the respondent's registration as a nurse in New South Wales. We note that there was one additional condition that the Commission sought, namely that the respondent must not be engaged or employed by providing nursing services with an agency. We will not place that condition on the respondent's registration, as we were not persuaded by the correspondence tendered that the respondent had agreed to that particular condition. Costs 1. As noted in the reasons of 7 December 2015, the applicant Commission sought an order that the respondent pay its costs of the proceedings. In its reasons for decision of 7 December 2015, the Tribunal noted that the respondent indicated to the Commission that she wished to surrender her registration or to be deregistered on 12 April and 16 April 2015 respectively. Accordingly, the Tribunal was concerned, in those circumstances, whether an order for costs was appropriate. 2. The Commission filed submissions on this issue; none were received from the respondent. 3. This was further discussed at the hearing on 5 April 2016, the Tribunal expressing the view that regardless of what other costs order may be made, the Tribunal was disposed to order that there be no order as to costs in relation to hearings on 24 February and 5 April 2016. The need for these hearings arose because of matters outside of the control or the responsibility of the respondent. The Commission's counsel indicated at the hearing that the Commission did not object to each party paying its costs of those days of the proceedings. Otherwise, the Commission maintained its claim for costs of an incidental the balance of the proceedings. 4. As a general rule, costs of proceedings before the Tribunal should follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [45]. 5. The Commission has been successful in obtaining relief against the respondent. In the circumstances, we consider that the respondent should pay the Commission's costs of the proceedings, other than the costs of and incidental to the hearings of 24 February and 5 April 2016. Orders 1. The Tribunal makes the following orders: 1. Pursuant to reg 9 of the Civil and Administrative Tribunal Regulation the orders of the Tribunal of 7 December 2015 are set aside, and in lieu thereof the Tribunal orders that the conditions set out in attachment A be recorded on the applicant's registration maintained by AHRPA. 2. Pursuant to s 45 of the NCAT Act extend the time for the Commission to make its application to set aside and vary the orders of 7 December 2015 to 5 April 2016. 3. The respondent to pay the Commissions costs of the proceedings, other than the costs of and incidental to the hearings of 24 February and 5 April 2016. 4. There be no order as to costs in respect of the hearings of 24 February and 5 April 2016. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales Registrar ATTACHMENT A 1. The respondent must not: (a) be in charge or have supervisory or delegation responsibilities when working as a registered nurse; or (b) work as a sole practitioner on any shift, ward or unit when working as a registered nurse. 2. The respondent must: (a) provide the Nursing and Midwifery Council of New South Wales (the Council) with the name and contact details of all nursing employers in writing (including educational facilities or any other organisation that requires nursing registration) at least seven days prior to commencing work; (b) authorise each nursing employer: (i) to notify the Council of any breach of these conditions or unsafe practice; and (ii) to exchange information with the Council related to compliance with these conditions 3. The respondent must only practise as a registered nurse under the direct supervision of another registered nurse (division 1) who does not have any conditions on his/her practice. At all times the supervisor must be present to observe, work with, guide and direct the respondent. 4. The respondent must provide a copy of these conditions to all current and any future employers before commencing work or employment that requires registration as a nurse. 5. The respondent must provide to the Council a copy of these conditions signed by the respondent and by, one behalf of, each employer, indicating awareness of these conditions and of the authorisation pursuant to condition to order 2(b) above within one week of commencing work. 6. Sections 125 to 127 of the Health Practitioner Regulation National Law 2009 (NSW) are to apply should the respondent's principal place of practice be anywhere in Australia other than New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. 7. The respondent must attend upon random urinalysis as required by the Council. 8. The respondent is prohibited from possessing Schedule 4D or Schedule 8 medications. 9. The respondent is prohibited from self administration of any Schedule 4D or Schedule 8 medication. 10. The applicant is responsible for the costs associated with complying with these conditions unless otherwise specified. 11. The respondent must: (a) attend for treatment by a general practitioner of her choice, at a frequency to be determined by the respondent and the treating practitioner if she is working as a registered nurse or any employment that requires registration as a nurse; (b) inform the Council of the name and contact details of the treating general practitioner within one week of commencing work as a registered nurse or any employment that requires registration as a nurse; (c) authorise her treating general practitioner to inform the Council of any failure to attend for treatment or termination of treatment. 12. The respondent must: (a) attend for treatment by a psychologist of her choice, at a frequency to be determined by the respondent and the treating practitioner if she is working as a registered nurse or any employment that requires registration as a nurse; (b) inform the Council of the name and contact details of the psychologist within one week of commencing work as a registered nurse or any employment that requires registration as a nurse; (c) authorise her treating psychologist to inform the Council of any failure to attend for treatment or termination of treatment. 13. The respondent must attend for assessment by a psychiatrist appointed by the Council as required by the Council. The cost of this assessment will be at the Council's expense. 14. These conditions are to be monitored by the Council unless the respondent moves out of New South Wales when the body that is appropriate within the national regulation and accreditation scheme in that State or Territory would take over the monitoring. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 15 April 2016 - Schedule 9 medication corrected to Schedule 8 in Attachment A. 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 2016