Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DHO v Medical Council of NSW [2018] NSWCATOD 80 Hearing dates: Decision on the Papers Date of orders: 25 May 2018 Decision date: 25 May 2018 Jurisdiction: Occupational Division Before: D A Cowdroy ADCJ, Principal Member Decision: (1) The orders made on 31 January 2018 be vacated and the following orders be substituted. (2) That pursuant to s 159C(1) of the Health Practitioner Regulation National Law (NSW) ("National Law"), the Tribunal confirms the suspension ordered by the respondent on 20 March 2017 and dismisses this Appeal. (3) That the name and address of the appellant and the evidence in these proceedings not be published until finalization of the criminal proceedings or until further order save for the communication of Order 2 hereof to relevant health bodies. (4) That the respondent / applicant (DHO) pay the costs of the applicant / respondent (Medical Council) in respect of the appeal as provided by cl 13(3A) of Sch 5D of the National Law by agreement or failing agreement, by assessment. (5) That the respondent / applicant (Medical Council) pay the costs of DHO in respect of the application as provided by cl 13(3A) of Sch 5D to the National Law by agreement or failing agreement, assessment. (6) That pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name of the respondent to this application be prohibited. Catchwords: PRACTICE – application under s 63 of the NCAT Act - whether any error or slip exists in order. Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law (NSW) Cases Cited: Campbell v Brisbane City Council (1967) 14 LGRA 305 DHO v Medical Council of NSW [2018] NSWCATOD 13 Hatton v Harris [1892] AC 547 at 558 In the Marriage of Bailey (1990) 99FLR 419 Seven Network (Operations) Limited v James Warburton (No 1) [2011] NSWSC 385 Category: Procedural and other rulings Parties: Medical Council of NSW (Applicant on application) DHO (Respondent to application) Representation: Counsel: M Robinson SC (Applicant) P Lowson (Respondent) Solicitors: Medical Council of NSW (Applicant) Lenz Legal (Respondent) File Number(s): 2017/00206286 Publication restriction: An order is made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of the name of the Respondent to this application. REASONS FOR DECISION Facts 1. This is an application brought by the respondent (Medical Council of NSW) hereafter referred to as "the Council" pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) ("NCAT Act") for the purpose of seeking orders to correct ostensible errors in the orders made by the Tribunal. 2. The respondent to this application (DHO) is a medical practitioner whose right to practise was suspended by the Council on 20 March 2017. DHO appealed the suspension to this Tribunal, which heard the appeal on 29 and 30 November 2017. 3. On 31 January 2018, the Tribunal published its reasons for decision, in which it confirmed the suspension from medical practice of the applicant (DHO) which had been imposed by the Council: see DHO v Medical Council of NSW [2018] NSWCATOD 13. The three orders made by the Tribunal ("the orders") are as follows. 1. That pursuant to s 159C(1) of the Health Practitioner Regulation National Law (NSW) ("National Law"), the Tribunal confirms the suspension ordered by the respondent and dismisses this Appeal. 2. That the name and address of the Appellant and the subject matter of these proceedings not be published. 3. The costs of this appeal are to be paid by the Appellant. The Application 1. By letter dated 16 March 2018 the Council made application to the Tribunal to vary the orders. The orders sought in substitution for the orders are as follows: 1. Pursuant to s 159C of the National Law, confirm the period of suspension of the Appellant from the register of medical practitioners imposed on 20 March 2017. 2. Until finalisation of the criminal proceedings against the Appellant (including any appeals), or until further order, pursuant to cl 7 of Sch 5D to the National Law, direct that: 1. The name and address of the Appellant not be published; 2. The subject matter of the complaint not be published; and 3. The evidence tendered in these proceedings not be published. 1. Until the finalisation of the criminal proceedings against the Appellant (including any appeals) or until further order, pursuant to s 64 of the NCAT Act, prohibit the publication of any report of these proceedings that might identify the Appellant or permit the Appellant to be identified. The Tribunal notes that Order 3 does not affect any statutory obligations of the respondent to communicate Order 1 to relevant health bodies. 1. Pursuant to cl 11(3A) [sic] of Sch 5D to the National Law, order the Appellant to pay the respondent's costs of this appeal, as agreed or as assessed. Basis for Application 1. The application is predicated upon there being, as provided in s 63(1) of the NCAT Act, "an obvious error in the text of a notice of the decision or a written statement of reasons for the decision…." 2. Relevantly, s 63 provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where: (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons. Consideration 1. The power to correct reasons or a decision is, traditionally, limited. It must be demonstrated, before jurisdiction exists, that an error was shown in the decision, the orders or the reasons. The "slip rule" did not grant a power to supplement or vary final orders on matters that were not argued or considered: see Campbell v Brisbane City Council (1967) 14 LGRA 305; In the Marriage of Bailey (1990) 99 FLR 419. It has been said that a hypothetical enquiry might be asked: had the matter been drawn to the attention of the court or the parties at the relevant time, would the record have been corrected as a matter of course: see Hatton v Harris [1892] AC 547 at 558. 2. Applying these principles, which the Tribunal finds is embodied in the statutory provisions contained in s 63 of the NCAT Act, the Tribunal observes as follows. Order 1: 1. The Council submits that ss 63 (3)(a) and/or (b) applies because Order 1 omits the date of the original order suspending the appellant. The Council acknowledges that such insertion is not necessary to give effect to such order but is preferable to do so. As to Order 1: Applicant's submission Finding 1. The commencement date for the order is determined by s 61 of the NCAT Act. An order of the Tribunal becomes operative on the date on which it is given, or upon such latter date as may be specified in the decision: see s 61 of the NCAT Act. 2. It follows there is no necessity to state the commencement date. The Council seeks only that the date of the original suspension be inserted. Had this been raised for greater clarity at the hearing, the Tribunal would have acceded to such request. Accordingly, the Tribunal will insert the date of the original suspension order. Order 2 and 3: 1. The Council states that it is concerned that the order is wider than is necessary to protect against any interference in a fair trial of the appellant in current criminal prosecutions against her. It is submitted that such order is inconsistent with the principle of open justice. Reference is made to Seven Network (Operations) Limited v James Warburton (No 1) [2011] NSWSC 385 ("Seven Network") at [2]. In particular at [3], Pembroke J said: "But departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and doom no more than is necessary to achieve the due administration of justice." As to Order 2 and Order 3: Submission Finding 1. During the course of the hearing, the evidence established that serious criminal charges had been laid against DHO. Such charges had been before the relevant court and arrangements were in place towards a hearing of those charges. For this reason, both parties sought a prohibition upon the publication of the decision of the Tribunal. Such application was made because the evidence heard during the hearing court, if it became public, could unfairly prejudice the trial of the criminal charges. The Tribunal was urged by both parties to impose strict prohibition upon publication of the proceedings. For this reason Orders 2 and 3 were made. 2. Neither party suggested, at the hearing, that there should be any exemptions to the order for prohibition on publication, of the kind that is now sought. 3. The Council now seeks to obtain concessions by enabling it to communicate Order 1 to "relevant health bodies." Had this issue been raised, the Tribunal would have made such an order to ensure the proper administration of the health system. It is appropriate now that such an order be made as sought for greater clarity. Order 4: 1. The Council submits that the "statutory basis for the cost order has been accidentally omitted from the order, and it is preferable, if not necessary, to demonstrate the source of power to award costs, particularly in circumstances where the costs may not be agreed and further steps may be necessary to secure payment of the costs." It submits that the specific powers stated in cl 11(3A) [sic] of Sch 5D to the National Law should be included in the draft. As to Order 4: Submission Finding 1. At the hearing, no order was sought by the Council, other than an order that DHO pay the costs of the appeal. It is not essential that the Tribunal identify, in the orders for costs it might make, the specific section to be relied upon when making a costs order in favour of the party. The power to award costs is contained in s 60 of the NCAT Act. However, when considering matters which arise under the National Law, cost can only be awarded pursuant to cl 13(3A) of Sch 5D to the National Law: see cl 13(4) of Sch D. 2. There is no ambiguity that arises in relation to the power under which costs might be awarded. There is no error in the Tribunal's orders. However, for clarity, the Tribunal will add to Order 4 the words "pursuant to cl 13(3A) of Sch 5D of the National Law." It would have included such reference if this issue had been raised at the hearing. 3. If a party seeks a specific form of order, it is incumbent upon that party to provide a draft minute of such order or orders before the close of a hearing. This application has arisen at no fault of the respondent to a motion. Accordingly, the Council should pay the costs of this motion. Orders 1. The Tribunal orders: 1. The orders made on 31 January 2018 be vacated and the following orders be substituted. 2. That pursuant to s 159C(1) of the Health Practitioner Regulation National Law (NSW) ("National Law"), the Tribunal confirms the suspension ordered by the respondent on 20 March 2017 and dismisses this Appeal. 3. That the name and address of the appellant and the evidence in these proceedings not be published until finalisation of the criminal proceedings or until further order save for the communication of Order 2 hereof to relevant health bodies. 4. That the respondent/applicant (DHO) pay the costs of the applicant/respondent (Medical Council) in respect of the appeal as provided by cl 13(3A) of Sch 5D of the National Law by agreement or failing agreement, by assessment. 5. That the respondent/applicant (Medical Council) pay the costs of DHO in respect of the application as provided by cl 13(3A) of Sch 5D to the National Law by agreement or failing agreement, assessment. 6. That pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name of the respondent to this application be prohibited. ******** 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 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: 25 May 2018