NCAT Legal Bulletin - Issue 11 of 2021

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Subject: NCAT Legal Bulletin - Issue 11 of 2021

NCAT Legal Bulletin

Issue 11 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 and the Supreme Court of New South Wales, including:

Hampshire v Health Care Complaints Commission [2021] NSWCA 283 - In which Court of Appeal dismissed the appeal of a health practitioner from a decision of the Tribunal to cancel his registration. The Court determined that the Tribunal addressed the correct questions and provided adequate reasons for its decision.
Purcell v The Director of Public Prosecutions [2021] NSWCA 269 - In which the Court of Appeal allowed an appeal and determined that the District Court had made a jurisdictional error in its finding that the appellant’s application for leave to appeal had been made out of time. The date of the conviction and sentence was excluded from the calculation for the time limit of three months after that date, and so the appeal was allowed.
GR v Secretary, Department of Communities and Justice [2021] NSWCA 267 - In which the Court of Appeal dismissed an application by the mother of a young person, who sought various orders in relation to decisions of the Children’s Court and Supreme Court, which had respectively ordered and upheld the order that the Minister for Families, Communities & Disability Services be allocated sole parental responsibility for applicant’s child. The Court set aside a number of subpoenas issued by the applicant on the basis that there was no utility to them, as they sought information which was already available by reason of earlier subpoenas, and decided that it was not appropriate to appoint a tutor for the applicant’s son.
Ford v Commissioner for Corrective Services of New South Wales [2021] NSWSC 1541 - 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.

New South Wales Court of Appeal

Hampshire v Health Care Complaints Commission [2021] NSWCA 283

19 November 2021 - Meagher and Gleeson JJA, Hulme J

In sum: The Court of Appeal dismissed the appeal of a health practitioner from a decision of the Tribunal to cancel his registration. The Court determined that the Tribunal addressed the correct questions and provided adequate reasons for its decision.

Facts: The appellant was a psychiatrist on whose registration practice conditions were imposed in May 2010, including limiting his alcohol consumption, requiring that he abstain from taking sedative medications and requiring him to gain Medical Council approval prior to changing the nature or place of his practice ([7]).

The respondent (the HCCC) alleged the appellant was guilty of unsatisfactory professional conduct and professional misconduct in relation to sexually inappropriate text and voice messages sent by the appellant to a former patient (Patient A) and breaches of the practice conditions. The HCCC also alleged the appellant suffered an impairment and was not competent to practise ([14]-[18]).

At the hearing in November 2020, the appellant’s treating psychiatrist (Dr Apel) agreed that the appellant fulfilled the criteria for the diagnosis of an alcohol use disorder. The diagnosis had not previously been made. The alcohol use disorder was added as a particular of the complaints of impairment and not competent to practise and the proceedings were adjourned to permit further evidence to be adduced. The appellant relied on Dr Apel’s expert opinion that the appellant’s alcohol use disorder could be managed with conditions; Dr Apel acknowledged that the appellant had not yet commenced a period of abstinence and that three years of abstinence would have to be demonstrated before the disorder could be said to be in remission ([21]).

In July 2021 the Tribunal found the appellant guilty of two complaints of unsatisfactory professional conduct as defined in s 139B(1) of the Health Practitioner Regulation National Law (NSW) (the National Law) and one complaint of professional misconduct pursuant to s 139E, and determined that he was impaired because his alcohol use disorder could grossly impair his judgement and clinical ability, and that for that reason he was not competent to practise. The Tribunal cancelled the appellant’s registration and imposed a three-year non-review period ([3], [30]-[34]).

The appellant appealed against: (i) the finding of professional misconduct; (ii) the finding that he is not competent to practise; and (iii) the protective orders as being excessive; or, in the alternative, that the Tribunal’s reasons for rejecting the evidence of Dr Apel were inadequate ([42]).

Held (dismissing the appeal):

Issue 1 – challenge to the finding of professional misconduct

(i) The appellant’s challenge to the Tribunal’s finding of professional misconduct did not raise any question of law and mischaracterised the nature of the Tribunal’s finding of professional misconduct. Whilst the finding did involve an evaluative judgment by the Tribunal, it was not a discretionary decision to which error in the House v The King sense would apply (i.e. it was not plainly unjust and no wrong principle was applied) ([51]-[52]).

(ii) The Tribunal’s finding that the appellant’s conduct in relation to Patient A was both “significant” and “serious” was not only open but hardly surprising, given the Tribunal’s findings as to: the escalating sexual undertones in the appellant’s interactions with Patient A; the appellant’s knowledge of Patient A’s vulnerability and much younger age; the power imbalance between the appellant and Patient A; and the fact that the conduct was not fleeting, went on for several hours, was overtly sexualised and unwanted, and the appellant’s persistence and conduct appeared to have a tone of harassment ([55]-[56]).

(iii) The Tribunal did not fail to consider the evidence attributing the appellant’s conduct in relation to Patient A to his alcohol use disorder. The weight to be given to that evidence in assessing the serious nature of the conduct was a matter for the Tribunal ([57]).

Issue 2 – challenge to the finding of non-competence to practise medicine

(iv) The Tribunal’s decision that the appellant was not competent to practise is not a discretionary decision to which the principles in House v The King apply. No question of law was raised by this challenge ([75]).

(v) The Tribunal did not fail to consider the effect of the appellant’s addiction to alcohol on his conduct; rather, it was only after considering the effect of his addiction, including the evidence of Dr Apel, that the Tribunal came to the conclusion that the appellant is not competent to practise. The Tribunal’s finding was well open to the Tribunal on the evidence ([81]-[83]).

Issue 3 – challenge to protective orders

(vi) The challenge to the exercise of a discretionary power by the Tribunal to cancel the appellant’s registration and order a three-year non-review period raised a question of law insofar as it was demonstrated that there was error in the House v The King sense ([76]).

(vii) The appellant’s conduct in relation to Patient A was the result of the consumption of alcohol and sedative medication in breach of the conditions of his registration on a single day. The Tribunal addressed the risk that similar conduct could occur at any time during the remission phase of his alcohol use disorder, having regard to the paramount consideration of public health and safety pursuant to s 3A of the National Law. The Tribunal did not address the wrong question or fail to address the question at all ([85]-[86]).

(viii) Whether there was no appropriate alternative to cancellation of registration was a matter of judgement for the Tribunal. The Tribunal had regard to the relevant evidence, including Dr Apel’s opinion; it was not required to accept his opinion that monitoring and supervision was appropriate. It was well-open to the Tribunal to find that the proposed conditions did not address the risk to the health and safety of the public ([90]-[92]).

(ix) The Tribunal gave adequate reasons for rejecting Dr Apel’s opinion that the appellant’s impairment because of his alcohol use disorder could be addressed by imposing conditions on his practice. The appeal was dismissed ([98]).

Read the decision on the NSW Caselaw website.

Purcell v The Director of Public Prosecutions [2021] NSWCA 269

8 November 2021 - Macfarlan and Beech-Jones JJA, Simpson AJA

In sum: The Court of Appeal allowed an appeal and determined that the District Court had made a jurisdictional error in its finding that the appellant’s application for leave to appeal had been made out of time. The date of the conviction and sentence was excluded from the calculation for the time limit of three months after that date, and so the appeal was allowed.

Facts: The appellant pleaded guilty and was convicted in the Local Court of two summary offences on 3 September 2020, and made subject to Community Corrections Orders. At around 3.45pm on 3 December 2020 he filed an application for leave to appeal against his conviction and sentence. The cover to the court file noted that the application was filed on 4 December 2020. His application was listed before a District Court judge on 10 March 2021 who dismissed the application on the basis that it was not made “within 3 months after the relevant conviction or sentence” as provided for in s 13(2) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) ([4]-[8]).

The applicant brought proceedings in the Court of Appeal seeking relief against the District Court under s 69 of the Supreme Court Act 1970 (NSW) on the basis that the District Court mistakenly refused to exercise its jurisdiction under the CAR Act. The application was brought one day out of time ([2]).

The issues that arose on the application were: (i) whether an extension of time should be granted in which to make the application to the Court of Appeal; (ii) whether the primary judge erred in determining that the application was not “made within 3 months after the relevant conviction or sentence”; (iii) if the primary judge did err, whether that error was jurisdictional; (iv) whether there was a further threshold of materiality that the applicant had to satisfy before it could be concluded that he made out a case of jurisdictional error?

Held (allowing the appeal):

(i) Given the strength of the substantive application, and the explanation proffered by the applicant’s solicitor, an extension of time was granted ([9]).

(ii) As the application to the District Court was filed on 3 December 2020 and as the date of the conviction and sentence, namely 3 September 2020, was excluded from the calculation, the application was made “within three months after the relevant conviction or sentence” ([14]).

(iii) The effect of the primary judge’s decision was to wrongly deny the District Court’s jurisdiction and, subject to any question of materiality, this error was jurisdictional ([19]).

(iv) It was not necessary to determine whether the materiality doctrine applied to the circumstance where an inferior court has wrongly denied the existence of its jurisdiction. Assuming, without deciding, that it was applicable, the applicant met the threshold ([26]).

(v) The matter was remitted to the District Court to determine the application for leave to appeal according to law ([27]).

Read the decision on the NSW Caselaw website.

GR v Secretary, Department of Communities and Justice [2021] NSWCA 267

5 November 2021 - Simpson AJA

In sum: The Court of Appeal dismissed an application by the mother of a young person, who sought various orders in relation to decisions of the Children’s Court and Supreme Court, which had respectively ordered and upheld the order that the Minister for Families, Communities & Disability Services be allocated sole parental responsibility for applicant’s child. The Court set aside a number of subpoenas issued by the applicant on the basis that there was no utility to them, as they sought information which was already available by reason of earlier subpoenas, and decided that it was not appropriate to appoint a tutor for the applicant’s son.

Facts: The applicant is the mother of AB, who is 17 years old. In April 2020 the second respondent (the Minister) was allocated all aspects of parental responsibility for AB by the Children’s Court; in August 2021 the Supreme Court dismissed an appeal from that decision ([3], [5]-[6])

Eight subpoenas were issued at the applicant’s request and resulted in the production of around 13,000 pages of material which were available to the primary judge and, subject to some redactions, to the appellant. The respondent filed a notice of motion seeking to have the subpoenas set aside, either on the basis of the nature of the appeal for which leave was sought; or alternatively on the basis of the nature and extent of the material sought ([9], [11], [14], [16]).

The applicant filed a notice of motion seeking various orders, including that she be granted access to certain of AB’s medical records, that she live with AB starting immediately or be granted a contact order, that a tutor be appointed for AB, and that AB be facilitated access to all independent experts as nominated by the applicant ([21]).

Held (allowing the respondent’s notice of motion and dismissing the applicant’s notice of motion):

The respondent’s notice of motion

(i) The material sought by a subpoena must be such as to have sufficient relevance to the issues in the proceeding in which the subpoena is issued. A subpoena will be set aside where compliance would impose an undue burden on the recipient or would be oppressive. Oppression may consist of the number of documents or the extent of the materials sought, or the cost involved in compliance. A subpoena may be set aside if the material sought to be produced cannot be seen to have a legitimate forensic purpose in the proceeding. The Court’s power to set aside a subpoena is contained in r 33.4 of the Uniform Civil Procedure Rules 2005 (UCPR) ([12]-[13]).

(ii) Because production under the appellant’s subpoenas would largely replicate what had already been produced in previous proceedings, the repeated production would be unduly burdensome and would not facilitate any object of the appeal. The subpoenas issued by the appellant were therefore set aside ([16]-[20]).

The applicant’s notice of motion

(iii) Though the applicant submitted fresh positive evidence in support of the order she sought that AB live with her, which attempted to rectify the deficiency in evidence that was the reason for an earlier refusal to make an access or contact order, the evidence was insufficient to provide a basis to override the orders made by the Children’s Court and confirmed by the Supreme Court ([24]-[26]).

(iv) It is not appropriate to appoint a tutor for a respondent to proceedings, as AB is; that role is of a guardian ad litem. A tutor may be appointed for a person with a legal disability who is the initiator of legal proceedings. Further, the applicant failed to identify the person she proposed be appointed as AB’s tutor, or provide evidence of their consent to take on the role, as is required by r 7.18(5)(b) of the UCPR. There was no evidence that AB or the Court would benefit from the appointment of a guardian ad litem. While the Court found it appeared sensible that AB and the Court be assisted by a separate legal representative for AB, the Court was not persuaded of the power to make such an order; nor was there any application for such an order ([28], [30]-[32], [46]-[47]).

(v) There was no evidence upon which an order that AB be facilitated access to all independent experts nominated by the applicant should be made, nor was it clear to the Court what the proposed order meant. The applicant’s notice of motion was dismissed with costs ([48]-[49]).

Read the decision on the NSW Caselaw website.

Supreme Court of New South Wales

Ford v Commissioner for Corrective Services of New South Wales [2021] NSWSC 1541

30 November 2021 - Campbell J

In sum: The Supreme Court dismissed an application for judicial review which sought declaratory relief that the conducting of urinalysis for drug testing by the respondent on the plaintiff, who was an inmate of a correctional facility, was unlawful. The Court found that the conducting of drug testing by urinalysis did not amount to torture, as submitted by the plaintiff, and the respondent’s drug testing policy was not legally unreasonable for preferencing urinalysis over other forms of drug testing.

Facts: The plaintiff was an inmate of a NSW correctional facility, where he was required to produce urine samples for drug testing. He failed to comply with a number of urinalysis requests due to certain psychological impairments stemming from trauma when he was young. This trauma meant he was unable to provide urine upon demand in front of others; this contradicted requirements in the correctional facility that inmates be visually observed to prevent tampering with urine samples. The respondent’s drug testing policy provides discretionary powers and preferences urinalysis over other forms of testing. The plaintiff contended that the directions to provide urine samples contravene s 274.2 of the Criminal Code (Cth) prohibiting torture The plaintiff sought declaratory relief at the Supreme Court both in relation to previous directions for urinalysis and subsequent punishments being unlawful, and that future directions to provide urinalysis would be similarly unlawful ([1]-[6], [31]-[32]).

Held (dismissing the application for judicial review):

(i) Although it may be accepted that correctional centres may be hard places and a person’s safety may be put at risk for no good reason, there was no tangible evidence of any actual risk warranting a suppression order or non-publication order as sought by the plaintiff. There was no evidence about whether it was known or not that the plaintiff had brought the proceedings and the attitude of others whether inmates or officers within the correctional system to him due to the proceedings. The Court was not satisfied that grounds for the order sought had been established, and accordingly refused the application ([8]-[9]).

(ii) The plaintiff did not provide evidence, except by his own untested statements unsupported by expert opinion, that urinalysis causes him “severe physical or mental pain or suffering” for the purposes of s 274.2 of the Criminal Code, nor that the conduct was engaged in for the purposes of obtaining information, punishment, intimidation or a related purpose. The urinalysis does not constitute torture under the Criminal Code nor does it constitute torture under the Crimes (Administration of Sentences) Regulation 2014 (NSW) ([44], [47]-[49], [52]-[54]).

(iii) Although the legislature is taken to have intended the respondent’s discretionary power to request samples to conduct drug testing to be exercised reasonably, the legislature also intended that power to be of broad compass, commensurate with the task of managing facilities and inmates entrusted to them. Inherent to that task is the maintenance of order within, and security of, the prison populace ([55], [60]).

(iv) The authorities suggest that the application of an inflexible policy does not provide a proper basis for the challenging by way of administrative review of a decision of the respondent. It is necessary to show bad faith, improper purpose or legal unreasonableness. The respondent’s preference for urinalysis when conducting drug testing was reasonable; not only is urinalysis cheaper, and economy a not unreasonable consideration, but it is more effective at drug detection than alternative methods. Effective testing of inmates is an indispensable aspect of the safe and orderly management of the facility and inmates. The respondent’s drug testing policy was not legally unreasonable ([61], [66]).

Read the decision on the NSW Caselaw website.

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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Subject: NCAT Legal Bulletin - Issue 11 of 2021