NCAT Legal Bulletin Issue 10 of 2021
The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the New South Wales Court of Appeal, Supreme Court of New South Wales and the High Court of Australia, including:
Rahman v Health Care Complaints Commission [2021] NSWCA 247 - In which Court of Appeal dismissed the appeal of a medical practitioner whose registration was cancelled by the Tribunal. The Court determined that once a practitioner’s name was removed from the roll there could be no appeal against the order that it be so removed, and decided that the Tribunal had not erred in its determination that the appellant had engaged in unsatisfactory professional conduct and professional misconduct, nor in its decision to cancel the appellant’s registration as a health practitioner. Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347 - In which the Supreme Court found no error of law on the part of the Tribunal in decisions relating to guardianship and financial management orders concerning the plaintiff’s parents. The Court rejected the plaintiff’s argument that he had been denied procedural fairness by the Tribunal's actions in imposing time limits on presenting submissions in the hearing, refusing an application for an adjournment, and refusing to admit late documents. Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 - In which the Supreme Court dismissed proceedings brought by two groups of persons who sought to contend that public health orders made by the respondent, Bradley Hazzard, the Minister for Health and Medical Research, and orders made by the Commonwealth, are invalid. Charisteas v Charisteas [2021] HCA 29 - In which the High Court found that there had been apprehended bias in a long-running family law matter, in which the judge and the respondent’s barrister had maintained a social relationship which had not been disclosed to the appellant.
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin. | | New South Wales Court of Appeal | Rahman v Health Care Complaints Commission [2021] NSWCA 247 14 October 2021 - Bell P, Basten and Macfarlan JJA
In sum: The Court of Appeal dismissed the appeal of a medical practitioner whose registration was cancelled by the Tribunal. The Court determined that once a practitioner’s name was removed from the roll there could be no appeal against the order that it be so removed, and decided that the Tribunal had not erred in its determination that the appellant had engaged in unsatisfactory professional conduct and professional misconduct, nor in its decision to cancel the appellant’s registration as a health practitioner.
Facts: The appellant is a medical practitioner, whose registration was cancelled by the Civil and Administrative Tribunal in May 2021 following a finding that he had engaged in unsatisfactory professional conduct and professional misconduct. These determinations included, among other things, the inappropriate prescribing of Schedule 4 and Schedule 8 drugs to a number of patients, prescribing drugs to himself and close family members, failing to report a theft of 45 somatropin vials from his car, and keeping inadequate clinical records for 26 patients. The misconduct extended over a period of some five years between 2011 and 2015 ([2]-[3], [19]).
Both before the complaints were laid and while they were outstanding, the Medical Council imposed conditions on the appellant’s registration, prohibiting him from prescribing a range of drugs. Although the matters the subject of the complaints had occurred some years before the hearing in the Tribunal, in 2019 a performance assessment undertaken with the practitioner noted that he had an interest in men’s health, and was planning to undertake therapies for hair loss which were described as experimental and non-evidence based. The Tribunal suspended the appellant’s registration and directed that he was not to seek a review of the order for 12 months. The appellant lodged an appeal challenging the disciplinary orders ([5], [20]-[26]).
Held (dismissing the appeal):
Issue 1 – making of interlocutory injunction restoring name to register
(i) The power to stay an order requiring the removal of a practitioner’s name from the register becomes unavailable once the practitioner’s name has been removed. In principle, the power to injunct conduct or threatened conduct which is unlawful does not allow an order that a third party reverse steps taken in compliance with lawful authority. There is no judicial authority providing support for such an order ([12], [18]).
Issue 2 – assumption that non-infringement was due to conditions on practice
(ii) Contrary to the appellant’s submissions, the Tribunal made no assumption that the appellant had not infringed for five years solely due to conditions having been imposed on his practice. Rather, it found that the appellant had not prescribed scheduled drugs for five years because of the restriction on his registration, and that there had been no infringement of that restriction. The Tribunal cannot literally have meant that the non-infringement of the restriction was due to its imposition ([63]-[64]).
Issue 3 – reliance on matters not alleged against practitioner
(iii) While the appellant’s embrace of unproven hair loss treatment by platelet-rich plasma injections into the scalp was not the subject of a complaint, it was squarely raised by the appellant himself and he was expressly challenged with respect to the evidence for such treatment. There was evidence before the Tribunal that the PRP hair loss therapy was unproven ([81]-[84]).
Issue 4 – whether cancellation of registration was disproportionate to conduct
(iv) Although the appellant had conducted himself without giving cause for complaint for a period of some five years, while subject to stringent conditions, it was undoubtedly open to the Tribunal to conclude that the conduct the subject of the complaints was so serious that no disciplinary order other than cancellation of registration for a period of not less than 12 months was appropriate ([65]).
(v) The contention that, in cancelling the appellant’s registration for a minimum period of 12 months, the Tribunal failed to give proper consideration to an order which permitted the appellant to continue to practice medicine, subject to current restrictions and subject to a reprimand, was not supportable, having regard to conduct of the hearing and the Tribunal’s reasoning ([49]-[50]).
Read the decision on the NSW Caselaw website. | Supreme Court of New South Wales | Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347 22 October 2021 - Sackar J
In sum: The Supreme Court found no error of law on the part of the Tribunal in decisions relating to guardianship and financial management orders concerning the plaintiff’s parents. The Court rejected the plaintiff’s argument that he had been denied procedural fairness by the Tribunal's actions in imposing time limits on presenting submissions in the hearing, refusing an application for an adjournment, and refusing to admit late documents.
Facts: The plaintiff appealed a decision of the Guardianship Division of the Tribunal to reappoint the Public Guardian as the guardian of his parents. He also appealed a decision of the Tribunal to dismiss his application to revoke financial management orders, and committing the management of his parents’ estates to the NSW Trustee and Guardian (NSWTAG). In his summons, the plaintiff raised several questions of law in respect of the guardianship and financial management decisions.
Held (dismissing the appeal):
(i) There was no denial of procedural fairness in either of the proceedings before the Tribunal. Considering the Tribunal gave the plaintiff ample opportunity to be heard and considering his attitude in both cases, a further hearing would amount to a futility. Further, both Tribunal Members acted with consummate professionalism, while the plaintiff in both hearings displayed a clear contempt for the Tribunal and its workings ([164]-[165]).
(ii) The Tribunal’s rejection of the plaintiff’s request for an adjournment was not a breach of the rules of procedural fairness. The Tribunal gave comprehensive and compelling reasons why the adjournment was not granted. Central to the reasoning was the plaintiff’s failure to comply with the directions and further to provide an adequate explanation for this failure. As an experienced litigant, the plaintiff would have understood the procedure and his obligations in terms of timing of any proposed evidence. The plaintiff gave every indication that he believed he was wasting his time before a Tribunal which was biased ([124]-[126], [131]-[132], [138]).
(iii) The Supreme Court rejected the plaintiff’s argument that he was denied ample opportunity to be heard, and the Tribunal failed to comply with the requirements of s 38(5) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and to properly exercise the jurisdiction under s 25(2)(a)-(b) of the Guardianship Act 1987 (NSW). The Court noted that the plaintiff used the time afforded to him in the hearing to attack the Tribunal, the Member hearing the matter, and his brother, and in doing deliberately chose to waste time on abuse, promising in any event to take the matter to the Supreme Court ([140]).
(iv) The plaintiff was not denied procedural fairness by the Tribunal’s decision to limit the presentation time of the plaintiff’s case to 30 minutes in chief and 5 minutes for final submissions. The imposition of a time limit in all the circumstances was entirely consistent with the nature of the hearing and a reasonable response to the manner adopted by the plaintiff in his approach to his submissions. It was in any event entirely consistent with s 38(6)(c) of the NCAT Act ([141]).
(v) There was no issue with the Tribunal’s finding that the appointment of the NSWTAG would be preferable to a private financial manager in deterring creditors from launching action to recover outstanding debts. The finding was based upon evidence and submissions from a representative of the NSWTAG which was open to the Tribunal to accept under s 38 of the NCAT Act. It was reasonably open for the Tribunal to infer that creditors would be less likely to act precipitously if an entity such as the NSWTAG were managing some person’s affairs ([148]-[149]).
(vi) The plaintiff was not denied a fair hearing by the Tribunal’s decision to reject certain emails containing evidence on the basis that they were not received in accordance with the Tribunal’s directions. The Tribunal was entitled to: (a) determine that the materials put forward by the plaintiff would be received as submissions only because of the lateness of their service; (b) regulate its procedure given the informal nature of it and accord such evidentiary value to the materials supplied by the plaintiff; and (c) inform itself as it sees fit as, the rules of evidence do not apply ([161]-[162]).
Read the decision on the NSW Caselaw website. | Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 15 October 2021 - Beech-Jones CJ at CL
In sum: The Supreme Court dismissed proceedings brought by two groups of persons who sought to contend that public health orders made by the respondent, Bradley Hazzard, the Minister for Health and Medical Research, and orders made by the Commonwealth, are invalid.
Facts: In response to the spread of the Delta variant of COVID-19 in New South Wales, the Minister for Health and Medical Research, the Honourable Bradley Hazzard (Mr Hazzard), made various orders under s 7(2) of the Public Health Act 2010 (NSW) (PH Act) which, on any view, significantly affected the freedoms of citizens and imposed greater burdens on those who are not vaccinated. The main focus of the two proceedings brought were those aspects of the orders which prevented so called “authorised workers” from leaving an affected “area of concern” that they resided in, and prevented some people from working in the construction, aged care, and education sectors, unless they had been vaccinated. The plaintiffs stated that they have made an informed choice to refuse to be vaccinated against COVID-19 ([1]-[11], [44]).
The plaintiffs in the Kassam proceedings contended that Public Health (COVID-19) Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (Order No 2) and s 7 of the PH Act were invalid and sued the Minister, the Chief Medical Officer, the State of NSW and the Commonwealth. They relied on various grounds to establish the invalidity of Order No 2: that the Minister did not undertake any real exercise of power in making the order; that Order No 2 was either outside of the power conferred by s 7, or represented an unreasonable exercise of the power because of its effect on fundamental rights and freedoms; and the manner in which Order No 2 was made was unreasonable. The plaintiffs also contended that Order No 2 confers powers on police officers that are inconsistent with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPR Act). They also argued that Order No 2 and s 7 were rendered invalid by s 51(xxiiiA) of the Constitution, and with the Australian Immunisation Register Act 2015 (NSW) ([95]-[98]).
The plaintiffs in the Henry proceedings sued the Minister only, and sought declarations asserting the invalidity of Order No 2, the Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW) (the Aged Care Order) and the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW) (the Education Order). They contended that, because of their effect on rights and freedoms, these orders were beyond the scope of s 7(2) of the Public Health Act; that they were made for an improper purpose, that in making them the Minister failed to have regard to various relevant considerations; asked the wrong question or took into account irrelevant considerations; was obliged to but failed to afford them natural justice and acted unreasonably ([99]-[104]).
Despite the Minister repealing Order No 2 before the completion of the hearing, the parties did not contend that the challenges to that order were rendered futile, and continued to seek declaratory relief concerning its invalidity ([6], [107]).
Held (dismissing the proceedings):
(i) Leaving aside the constitutional challenge raised by the plaintiffs in the Kassam proceedings, in considering the grounds of challenge raised in both proceedings, the Court noted that it is not the Court’s function to determine the merits of the exercise of the power by the Minister to make the impugned orders, much less for the Court to choose between plausible responses to the risk to public health posed by the Delta variant. It is also not the Court’s function to conclusively determine the effectiveness of some of the alleged treatments for those infected or the effectiveness of COVID-19 vaccines especially their capacity to inhibit the spread of the disease. The Court observed that these are all matters of merits, policy and fact for the decision maker and not the Court. Instead, the Court noted that it’s only function is to determine the legal validity of the impugned orders which includes considering whether it has been shown that no Minister acting reasonably could have considered them necessary to deal with the identified risk to public health and its possible consequences ([7]).
(ii) One of the main grounds of challenge in both cases concerns the effect of the impugned orders on the rights and freedoms of those persons who chose not be vaccinated especially their “freedom” or “right” to their own bodily integrity. The plaintiffs contended that, as a matter of statutory construction, the broad words of s 7(2) of the Public Health Act do not authorise orders and directions that interfere with those rights or that they are otherwise unreasonable because of their effect on those rights. They sought to deploy the “principle of legality” which is a rule of statutory construction to the effect that, in the absence of a clear indication to the contrary, it is presumed that statutes are not intended to modify or abrogate fundamental rights. However, the Court noted that it is only a rule of construction and the assistance to be gained from the presumption will vary with the context in which it is applied. At least so far as the abrogation of particular rights are concerned, the presumption is of little assistance in construing a statutory scheme when abrogation is the very thing the legislation sets out to achieve ([8]).
(iii) Although it was contended that the impugned orders interfere with a person’s right to bodily integrity and a host of other freedoms, the Court found that the impugned orders curtailed freedom of movement which in turn affects a person’s ability to work (and socialise). So far as the right to bodily integrity is concerned, the Court found that it was not violated as the impugned orders do not authorise the involuntary vaccination of anyone. So far as the impairment of freedom of movement is concerned, the degree of impairment differs depending on whether a person is vaccinated or unvaccinated. The Court found that curtailing the free movement of persons including their movement to and at work are the very type of restrictions that the Public Health Act clearly authorises. Hence it was found that the principle of legality does not justify the reading down of s 7(2) of the Public Health Act to preclude limitations on that freedom ([9]).
(iv) Further, the Court observed that any consideration of the unreasonableness of an order made under s 7(2) is to be undertaken by reference to the objects of the Public Health Act which are exclusively directed to public safety. Orders and directions made under the Public Health Act that interfere with freedom of movement but differentiate between individuals on arbitrary grounds unrelated to the relevant risk to public health, such as on the basis of race, gender or the mere holding of a political opinion, would be at severe risk of being held to be invalid as unreasonable. However, the differential treatment of people according to their vaccination status is not arbitrary. Instead, it applies a discrimen, namely vaccination status, that on the evidence and the approach taken by the Minister is very much consistent with the objects of the Public Health Act. Accordingly, the Count rejected this aspect of both challenges ([10]).
(v) As for the balance of the grounds of challenge:
(a) It was not demonstrated that the making of Order (No 2) was not a genuine exercise of power by the Minister, that the making of the impugned orders by the Minister involved any failure to ask the right question or any failure to take into account relevant considerations much less that it was undertaken for an improper purpose. The Minister was not obliged to afford the plaintiffs or anyone else procedural fairness in making the impugned orders;
(b) It was otherwise not demonstrated that either the manner in which the impugned orders were made was unreasonable or that the operation and effect of the orders could not reasonably be considered to be necessary to deal with the identified risk to public health and its possible consequences;
(c) Order (No 2) was not shown to be inconsistent with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW);
(d) Order (No 2) does not effect any form of civil conscription as referred to in s 51(xxiiiA) of the Constitution and, even if it did, the prohibition on civil conscription does not apply to laws made by the State of NSW; and
(e) There is no inconsistency between Order (No 2) and the Australian Immunisation Register Act 2015 (Cth) ([11]).
Read the decision on the NSW Caselaw website. | | Charisteas v Charisteas [2021] HCA 29 6 October 2021 - Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ
In sum: The High Court found that there had been apprehended bias in a long-running family law matter, in which the judge and the respondent’s barrister had maintained a social relationship which had not been disclosed to the appellant.
Facts: During long-running family law proceedings, the barrister of the respondent (the wife) engaged in communications with the judge without the prior knowledge and consent of the appellant (the husband) or his legal representatives. In response to “gossip”, the husband’s solicitor sought from the wife’s barrister (the barrister) assurance that she had had no contact with the judge outside of court. The barrister acknowledged that she had met with the judge for a drink or coffee on approximately four occasions, and had spoken with him by telephone on five occasions, and had exchanged text messages with him, but said that none of these communications concerned the substance of the case. A number of Additional Parties including the husband’s mother, who was the beneficiary of a relevant trust, had earlier applied for the trial judge to recuse himself, which he declined to do ([1]-[8]).
The Full Court of the Federal Court dismissed the husband’s appeal and he appealed to the High Court ([9]).
Held (allowing the appeal):
(i) The apprehension of bias principle, that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”, is well established. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge... to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed ([11]).
(ii) As long established by the High Court, in ordinary judicial practice there should be no communication or association between the judge and one of the parties or their legal advisers or representatives otherwise than in the presence of, or with the previous knowledge and consent of, the other party. Once a case is underway neither the judge nor the parties should act so as to expose the judicial officer to a suspicion of having had communications with one party behind the back of, or without the previous knowledge and consent of, the other party ([13]).
(iii) A fair-minded lay observer, understanding that ordinary and most basic principle of judicial practice, would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions the judge was required to decide. The trial judge's impartiality might have been compromised by something said in the course of the communications with the wife's barrister, or by some aspect of the personal relationship exemplified by the communications. Accordingly, there is a logical and direct connection between the communications and the feared departure from the trial judge deciding the case on its merits ([15]).
(iv) The Full Court erroneously reasoned that the hypothetical observer would understand that the trial judge mistakenly failed to appreciate his obligations, and would not consider his lack of disclosure to be sinister. The apprehension of bias principle is so important to perceptions of independence and impartiality that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined ([17]-[18]).
(v) The Full Court reasoned that a properly informed lay observer would have some degree of tolerance of private communications between judges and barristers, noting the close relations between barristers and judges, that many judges are appointed from the Bar, and the independence of barristers from their clients. However the lay observer is not conceived of as a lawyer, but a member of the public served by the courts. It would defy logic and render nugatory the principle to imbue the hypothetical observer with professional self-appreciation of this kind ([20]-[21]).
(vi) In the absence of informed consent by the husband to all communications between the judge and the barrister, there can have been no waiver of the husband’s right of complaint of apprehended bias. The appeal was allowed and the matter remitted for rehearing at the Family Court of Western Australia ([23]).
Read the decision on the High Court of Australia website. | | | Spencer v Coshott [2021] NSWCA 235 COSTS — Chorley exception — where party represented by incorporated legal practice of which he was the principal and sole director and shareholder — whether primary judge erred in denying solicitor applicant costs payable to incorporated legal practice — Bell Lawyers Pty Ltd v Pentelow JUDICIAL REVIEW — what constitutes “the record” for the purposes of error of law on the face of the record | Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCA 242 ESTOPPEL – proprietary estoppel – encouragement – nature of promise – strata title – promise of easement – whether representation sufficiently clear – where representation made at general meeting – where representation did not define the interest in property the representee was expected to receive – where further documentation was required to be executed to give effect to the representation ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether reliance was that of the owners corporation – Strata Schemes Management Act 1996 (NSW) s 21(2) – Strata Schemes Management Act 2015 (NSW) ss 8, 254 ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether the evidence indicated that the representation was such that the conduct of the lot holders was sufficiently influenced by the representation | Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246 NEGLIGENCE – public authority – Murray Darling Basin Authority – Authority or its delegates alleged to have negligently released water causing damage to plaintiffs’ lands – whether Authority or delegates a “public or other authority” within meaning of s 41 of Civil Liability Act 2002 (NSW) CONSTITUTIONAL LAW – relationship between constitutional and non-constitution issues – role of intervening Attorney-General submitting that constitutional issue does not arise PROCEDURE – defendant Authority pleaded defences from Part 5 of Civil Liability Act 2002 (NSW) on basis that it was a “public or other authority” – paragraphs struck out by primary judge – questions reserved on agreed facts and removed to Court of Appeal – consideration of appropriateness of determining such issue on final basis | | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
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