NCAT Legal Bulletin Issue 12 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:
Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339: The Court of Appeal upheld the Tribunal’s decision, which found EFA guilty of unsatisfactory professional conduct. The Court held there was no common law test of professional misconduct which existed beyond the statutory test. Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299: The Court of Appeal upheld the validity of certain public health orders made pursuant to the Public Health Act 2010 (NSW). Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340: The Court of Appeal removed Mr Clifton from the Supreme Court’s roll of practitioners on the recommendation of the Tribunal, following the misuse of trust funds. The Court of Appeal held that, in that case, it was sufficient to act on the critical findings of fact made by the Tribunal as to Mr Clifton’s dishonest conduct and indefinite unfitness to practice. Dr Hill v Health Care Complaints Commission [2021] NSWSC 1645: The Court quashed the decision of the Health Care Complaints Commission to commence proceedings against Dr Hill for professional misconduct. The Court held that such a decision was amenable to judicial review on the ground of legal unreasonableness. Eggleton v Commissioner of Corrective Services NSW [2021] NSWSC 1605: A “protection non-associated prisoner” detained in a correctional facility sought injunctive relief to guarantee access to a personal laptop to prepare for several NCAT matters. The Supreme Court held that he had failed to identify a legal or equitable interest which could support injunctive relief.
| | New South Wales Court of Appeal | Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 21 December 2021 - Bathurst CJ, Leeming JA and Simpson AJA
In sum: An appeal of the Tribunal’s decision was dismissed with costs. Barrister EFA was found to have engaged in “unsatisfactory professional conduct,” arising from a sexual act committed in relation to an assistant clerk at a dinner. The Court held that it was an isolated incident which was out of character; and accordingly did not warrant a finding of “unfitness” or removal from the roll. The Court declined to recognise a discrete common law species of “professional misconduct” drawn from English authority, which centred on “peer review” disgraceful or dishonourable conduct. The Court confirmed the “crucial criterion” for a determination of professional misconduct to be the “fit and proper person test” provided in s 297 of the Legal Profession Uniform Law (LPUL).
Facts: The Council of the New South Wales Bar Association (“the Council”) commenced proceedings in the Tribunal against EFA for professional misconduct. EFA was a barrister attending a dinner associated with a barrister’s clerk’s conference, during which he became intoxicated. In the course of the dinner, EFA greeted a colleague with a “ritualised greeting which parodied oral sex.” It was then alleged that he moved toward a female colleague, placed his hand behind her head and said “suck my dick.” The Tribunal found that he had not placed his hand on the clerk’s neck, but had said the words “suck my dick”.
Issues on Appeal: The key issues were: did EFA use the words “suck my dick;” whether there was a distinct category of professional misconduct which extended beyond the statutory scope of s 297; whether the conduct of EFA met the threshold for “unfitness;” and whether the Tribunal had erred in only reprimanding EFA by way of penalty.
Held: The appeal was dismissed with costs and the notice of contention (filed by EFA) was dismissed.
(i) The Conduct EFA’s conduct was determined to be “demeaning, humiliating and inexcusable” [194]. However, the Court accepted the Tribunal’s factual finding that it did not amount to sexual harassment. This finding was not to “underestimate the seriousness” but to distinguish that, if there was a sexual intent or proposition, the conduct would have been “characterised differently [102].” The conduct was determined to be an “offensive remark” within the context of the “ritualised greeting” with another colleague in which EFA participated.
(ii) Common Law Test The Court rejected the notion that there were separate common law and statutory tests for professional misconduct. Rather, it was held that statutory definition in s 297 LPUL incorporated the traditional common law test and the two were “indistinguishable” [160]. Their Honours confirmed the “critical criterion” for determining professional misconduct, was whether the individual was a “fit and proper person” to remain on the roll [125].
Their Honours “respectfully disagreed” with any suggestion that the formulation of the test derived from Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 reflected a separate category of professional misconduct in New South Wales. The Court held that there “is, in NSW, no category of professional misconduct constituted by conduct that would be regarded…as “disgraceful or dishonourable [at 156].”
Ultimately, the Court emphasised the importance of using the “fit and proper person test” in determining “fitness” as it assessed character “which may be determined by conduct alone, but which may also take into account other circumstances [159].” On these facts, the conduct was seen to be an isolated event, entirely out of character. It was from these conclusions which the Court distinguished “professional misconduct” requiring disbarment, from “unprofessional conduct” which required a reprimand and sanction.
(iii) The Penalty The Court agreed with the Tribunal’s finding that EFA’s conduct was “poorly judged, vulgar and inappropriate [66].” However, the Court also agreed with the Council’s submission that the Tribunal's penalty of a reprimand alone was insufficient in the circumstances. The use of the words ‘suck my dick’ by EFA elevated the conduct to “a new dimension calling for severe condemnation…[which] is not achieved by mere reprimand [181].”
The Court was clear in stating the conduct did not warrant “removal from the roll” but there should be a “pecuniary penalty [181].” Reprimand alone is insufficient.
The Court took into consideration the sentencing principles of proportionality and extra-curial punishment. It was emphasised that any penalty “needs to be seen as proportionate to what the conduct has already cost the respondent in personal and emotional, as well as financial terms” [196].
The Court took into account the cost and losses EFA had already endured, as contributing to the penalty for the conduct at [195]; public notoriety and humiliation; the “four year period of anxiety” awaiting a determination; the “severe impact” on EFA’s mental health; the termination of his marriage and disruption to the family; the “significant quantifiable cost” resulting from his professional insurance policy noting “the annual cost has dwarfed the maximum fine” which could have been imposed; the “real and significant impact” on his practice; and that his actions were an “isolated instance of departure from accepted norms of conduct.” Consequently, scope has been provided to consider “extra-curial” factors which have impacted the individual when considering the “appropriateness” of the penalty imposed.
Additionally, the Court rejected the submission that EFA undertake “counselling” which was proposed in general terms, stating that the Council requested the Court to make an order that could not be “reasonably enforced [198].”
Read the decision on the NSW Caselaw website. | Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299 8 December 2021 - Bell P, Meagher JA and Leeming JA
In sum: The Court of Appeal upheld the validity of certain Public Health Orders made under s 7(2) of the Public Health Act 2010 (NSW) (“PHA”) by the Minister for Health. The orders conditionally restricted the movement of unvaccinated people. The Court held that the PHA created a flexible power to create orders to respond to a ‘state of emergency.’ The Court declined to read down the power with reference to the principle of legality. It was held that the suite of rights relied upon by the plaintiffs (including the “right to earn a living”) did not engage the principle and would lead to a statutory construction which was contrary to the overriding purpose of the statute.
It was held that the PHA was broad and empowered the Minister to create orders in response to the continuing state emergency. The Court held the ‘affected rights’, as argued by the applicants, failed to engage the legality principle. It was also considered that the characterisation of the orders, as being “administrative” or “legislative” was problematic and artificial. The preferred construction was having regard to the express powers conferred on the Minister by s 7 PHA. Consequently, given the broad construction of the power, it was envisioned that individual rights would be affected and deemed “necessary” to deal with the public health risk and the possible consequences.
Facts: The unvaccinated plaintiffs challenged the validity of three Public Health Orders (“the impugned orders”), made under s 7 of the PHA, which restricted movement for certain persons by reference to vaccination. The plaintiffs argued that the orders were ultra vires, created for an improper purpose, and were legally unreasonable.
The principal issues in the application for leave to appeal were: (1) the significance of the impugned orders being characterised as either “administrative” or “legislative” (the characterisation issue); and (2) whether the impugned orders were otherwise supported by s. 7 of the PHA (the construction issue).
Held: Leave was granted concerning the proper construction of s 7 PHA. Each of the grounds for invalidity was dismissed.
(i) The Characterisation Issue: The plaintiffs argued that the impugned orders were “legislative in their effect” and beyond power on that basis: at [73]. The Court held that the scope of s. 7 of the PHA is not limited to the making of “administrative orders” because the power is premised on a risk to public health. The Court held that creating distinctions between “administrative” and “legislative” instruments was a problematic exercise. Leeming JA stated that the distinction is “one that is far from crisp and well-defined” [154] and ultimately held that there was no reason for a power to demonstrate both administrative and legislative character [155]. The Court unanimously rejected the plaintiffs’ arguments.
(ii)The Construction Issue: The applicants argued that the impugned orders were “not authorised” as they interfered with six individual rights, “contrary” the principle of legality [80]. The rights were: (a) the right to bodily integrity; (b) the right to work and earn a living; (c) the right not to be discriminated against; (d) the right to privacy; (e) the privilege against self-incrimination; and (f) the right to silence.
The Court held that rights (b), (c) and (d) did not engage the principle of legality (at [111]) and that, even if they did, it would it would not be sensible to interpret s. 7 as authorising the restriction on movement except to the extent that it impaired a person’s right to work, privacy, or to be free from discrimination (at [112]). Further, the Court held that the orders did not infringe “even indirectly” the balance of the rights. When considering the broad nature of the powers and the anticipated infringement on individual rights, the principle of legality could not be used to “preclude” or limit those measures. Leeming JA found the generalised reference to “rights” as unpersuasive because the principle of legality requires nuanced analysis of the rights relied upon, and the practical operation of orders upon those rights: at [163].
Ultimately, the arguments based on the principle of legality were dismissed. The Court held that the role of the principle of legality was “context-dependent” and “adjunct to the ultimate and central judicial task” of statutory construction [86]. In this context, it was held that the powers in s 7 of the PHA “are broad” and that “no narrow construction should be afforded to it” [78]. The Court held it was intended under s 7 PHA, that in response to a public emergency, an inference with private rights was “expressly contemplated” [93].
Read the decision on the NSW Caselaw website. | Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340 10 December 2021 - Leeming JA; White JA and Brereton JA
In sum: Upon recommendation of the Tribunal, the Court held that the misuse of trust account funds and creation of false invoices by a solicitor amounted to conduct which warranted his removal from the Supreme Court roll.
Facts: Mr Clifton encountered serious cash flow difficulties in his legal practice. His bookkeeper recommended to Mr Clifton that funds held on trust could be used to pay the debts of the legal practice, and false invoices could be created to cover the transfers. Mr Clifton approved of the action, and seven withdrawals totalling approximately $50,000 were made. The money was restored to the trust account within the year. The transactions and false invoices were discovered by a routine trust account inspection.
Held: The respondent, Mr Clifton to be removed from the roll of NSW Supreme Court Solicitors, and Mr Clifton pay the applicant’s (Council of the Law Society) costs.
The solicitor, in admitting to the conduct, contended that his actions did not warrant removal from the roll and sought a lesser penalty. However, their Honours stressed that the “inevitable consequence of the misuse of trust funds by a solicitor trustee is disbarment” [11].
Mr Clifton provided no additional evidence in the proceedings to contradict the order sought by the Council of the Law Society (to remove him from the roll). Consequently, it was accepted that the Court should accept the findings and the recommendation of the Tribunal. Brereton JA stated that Mr Clifton’s conduct was “admittedly dishonest” that he “did not demonstrate a sufficient or full understanding of the error of his ways [10].” On this basis, that Mr Clifton was not currently fit to practise and likely to be unfit for an indefinite period. Mr Clifton was ultimately deemed “no longer a fit and proper person to be a legal practitioner” per 297(1)(b) of the Legal Profession Uniform Law (LPUL) and was removed from the roll.
Additionally, their Honours noted that s 23 LPUL empowers the Court to remove a person from the Supreme Court roll either “on its own motion” or on the “recommendation of the designated tribunal,” being NCAT [6]. It was noted that whilst the “ultimate power” for removal no longer falls with the Tribunal, there is “no reason for this Court to go behind the findings of fact made by the Tribunal, and it may be that it would be inappropriate for the Court to do that, even if additional evidence was filed” [9]. However, their Honours impressed the importance of the Court itself to be satisfied that a person is no longer seen fit to be a legal practitioner.
Read the decision on the NSW Caselaw website. | Supreme Court of New South Wales | Dr Hill v Health Care Complaints Commission [2021] NSWSC 1645 16 December 2021 - Simpson AJ
In sum: The Supreme Court quashed two decisions by the Health Care Complaints Commission (the Commission): to refer a complaint to its “Director of Proceedings”; and the decision of the Director of Proceedings to commence professional misconduct proceedings in NCAT. The first decision was quashed for failure to give reasons. The second decision was quashed for legal unreasonableness.
Facts: Dr Hill was subject to a complaint to the Commission for behaviour during the course of surgery and his behaviour came under scrutiny for professional misconduct and referred to the Director of Proceedings. Ultimately, a decision was made by the Tribunal in July 2020, determining that Dr Hill was guilty of professional misconduct. An order in the nature of certiorari was sought in the Supreme Court to quash both decisions.
Held: The Court quashed the referral and prosecution decisions.
(i) The referral decision: Reasons Following conclusion of an investigation into a complaint, the Commission must take one of several courses of actions prescribed by the Health Care Complaints Act 1993 (NSW) (“HCC Act”). The first is a referral to the “Director of Proceedings” which is an independent member of the Commission’s staff, who is empowered to determine whether to prosecute a doctor before a disciplinary body. The HCC Act provides an express obligation to provide reasons for a referral.
Her Honour found that the Commission failed to meet the requirement to provide reasons for its decision to refer the complaint against Dr Hill to the Director of Proceedings. The reasons did not “explain the actual path of reasoning’ by which the decision is arrived at (Wingfoot at [55]). That amounted to an error of law on the face of the record: [118].
The Commission’s letter provided a “single sentence” which expressed a “conclusion without explanation [121].” Further, the letter did not address the reasons for rejecting Dr Hill’s submissions in his defence, rendering his entitlement to make such submissions “effectively nullified [121].” In light of the severity of the possible ramifications, Dr Hill was “entitled to a more comprehensive explanation of the decision [122].”
Finding an error on the face of the record raised two key questions; what was “the record” and what was the “ultimate decision.”
Her Honour referred to the reasoning in Craig v South Australia (1995) CLR 163 which determined “a record for the purposes of an application for certiorari is ultimately a matter for the Court hearing the application.” In determining ‘the record’, it was stated that “the letter purported to be and was relied on by the Commission as the reasons for the decision [133].” As such, Simpson AJ held that the Commission, being a statutory body, was required to give reasons for the decision and that the “Commission be accountable for its actions [129].” Consequently, the record was the letter notifying Dr Hill of the decision to refer the complaint.
An order in the nature of certiorari was sought for both decisions. In relation to the referral decision, whilst there was an error on the record, it was held that “nothing was to be achieved” by ordering certiorari, as the “failure to provide reasons…did not invalidate the decision [178].” Consequently, no order was made.
(ii) The decision to Prosecute: Unreasonableness Her Honour adopted the majority approach in the High Court’s decision Minister for Immigration v Li (2013) CLR 332. When determining unreasonableness, it must be clear that “the decision lacks evident and intelligible justification (Li at [163]).” On these facts, it was concluded that Dr Hill was “in good standing in his profession” and the justification for his deregistration was on conduct that lasted “a few seconds” and was “isolated” in nature [at 167]. In light of this, her Honour found it “difficult to see any rational warrant” for Dr Hill’s prosecution when the conduct itself could not amount to professional misconduct demanding suspension or deregistration.
The Court held that the prosecution decision was amenable to certiorari for legal unreasonableness. The Commission argued that the decision was not amenable to certiorari, by arguing that the decision to prosecute did not sufficiently affect the legal rights of Dr Hill. The Court rejected this argument on the basis that that the prosecution decision was an essential step in a process capable, ultimately, of altering the plaintiff’s rights and interests; that it exposed him to the potential for adverse disciplinary findings: [198]. The Court also appears to have held that the decision was not sufficiently analogous to the decision of the Director of Public Prosecutions (which is immune from judicial review): [201].
Read the decision on the NSW Caselaw website. | Eggleton v Commissioner of Corrective Services [2021] NSWSC 1605 8 December 2021 - Wilson J as Duty Judge
In sum: Mr Eggleton, an inmate in a state gaol, sought interim injunctive relief to gain access to a personal laptop and legal materials to prepare for his self-represented legal matters. However, he identified no legal or equitable right which might ground equitable relief. The Court noted that considerable efforts had been made to assist Mr Eggleton in the preparation of his matters and that Corrective Services must consider the equitable distribution of its resources in assisting inmates.
Facts: Mr Eggleton was a current “protected non-associated prisoner,” being a person who has sought protection and isolation from other inmates, as association with other inmates is likely to constitute a threat to his personal safety. He was seeking injunctive relief to access a personal laptop and legal materials to prepare for four existing matters before the NSW Civil and Administrative Tribunal. In being self-represented, Mr Eggleton alleged that his ability to prepare for his litigation was impeded by the Commissioner for Corrective Services (Commissioner), by repeatedly denying him access to necessary equipment and materials. He asserted that the denials were contrary to applicable policy.
Held: Her Honour refused injunctive relief as no legal or equitable right was established.
The Court held that it would only grant an injunction to protect a recognised legal or equitable right, and where the act complained of is an unlawful act. The Court noted that it does not have a function to enforce or to give effect to moral obligations which do not carry with them legal or equitable rights.
The Court accepted evidenced tendered by the Commissioner as to the need to equitably distribute the resources of Corrective Services amongst the prison population, which included that no individual inmate would receive “greater access to resources and facilities than do others with the same needs [32].”
Consideration was had to Mr Eggleton’s status as a ‘protection non-association prisoner’ who was subject to a non-association direction for his own safety. The Commissioner contended that accessing resources in the broader prison would place Mr Eggleton at considerable risk. In being a person convicted of child sexual assault offences, it was proposed that Mr Eggleton would “be recognised” and “placed at some jeopardy as a consequence [34].” As such, special provisions were made to assist Mr Eggleton in the preparation of his matters, such as printing out legal documents, provision of materials from the Corrective Services library, electronic storage of his legal documents and access to the prison computers, all of which was made available at no cost to him.
Her Honour noted that could she not conclude that Mr Eggleton had been given less preferential treatment, concluding on the evidence that he had “been given access to legal resources over and above that granted to other prisoners [68].” Ultimately, the application for interim relief was dismissed and equitable relief was refused on the basis that no unequitable or unlawful act had been established.
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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