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| | | NCAT Legal Bulletin Issue 6 of 2020
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| 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 Supreme Court of New South Wales and New South Wales Court of Appeal, including: - Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 - Harrison AsJ in the Supreme Court allowed the appeal on the basis that the Tribunal misapplied s 150 of the Health Practitioner Regulation National Law (the National Law) by considering the second limb of that section (whether an action is in the public interest) only insofar as it related to the matters in the first limb (the protection of the health and safety of a person or persons).
- Ghosh v Medical Council of New South Wales [2020] NSWCA 122 - the Court of Appeal allowed the appeal on the basis that the Tribunal erred in giving less weight to the evidence of certain witnesses because they were not called or cross-examined; made findings affecting the appellant's credit that were not reasonably open to it; and failed to address the critical question of whether allowing the appellant to practise would involve an unacceptable risk to the public.
- Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111 - the Court of Appeal allowed the appeal on the basis that the Tribunal failed to give reasons why it had departed from the majority of expert evidence before it about whether the appellant's actions were within the reasonable range of responses that a practitioner in his circumstances, and with his experience and training, could have.
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin.
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Supreme Court of New South Wales
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| Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708
9 June 2020 - Harrison AsJ
In sum: The Supreme Court allowed an appeal from a decision in the Occupational Division of NCAT on the basis that the Tribunal misapplied s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law) by considering the second limb of that section only insofar as it related to the matters in the first limb.
Facts: In August 2019, the Pharmacy Council suspended the defendant’s registration as a pharmacist pursuant to s 150 of the National Law ([13]).
This decision followed the defendant being charged with two offences under the Crimes Act 1990 (NSW), involving sexual intercourse and sexual touching without consent. The charges are due to be heard in the Local Court in September 2020 ([5]).
The defendant sought to appeal the suspension in NCAT, pursuant to s 159 of the National Law ([18]). The Tribunal held that, although it was satisfied that it was appropriate for the protection of public health and safety and in the public interest that an order under s 150(1) be made, “it could be appropriate to permit the appellant to continue to practise as a pharmacist provided he was precluded from contact with members of the public” ([21]). Accordingly, the Tribunal set aside the suspension of the defendant’s registration, and substituted a decision to allow the defendant to continue to practise as a pharmacist subject to a number of conditions ([22]).
The Pharmacy Council appealed to the Supreme Court on numerous questions of law, pursuant to cl 29(4)(b) of Sch 5 to the NCAT Act ([23]).
Held (allowing the appeal, setting aside the Tribunal’s decision, and remitting the matter to the Tribunal differently constituted):
Whether the Tribunal misapplied s 150 of the National Law – YES
(i) Section 150 of the National Law mandates action by the Council (or in these proceedings, the Tribunal standing in the Council’s shoes) in either of two circumstances, which have been described as two “limbs” ([28]):
(a) “if it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons)”; OR
(b) “if satisfied that the action is otherwise in the public interest”.
(ii) The Tribunal below considered the second limb only insofar as it related to the matters set out in the first limb, and thus erroneously confined its application of s 150 to the protection of the health or safety of the public. That application was out of keeping with the plain language of the statute, which clearly differentiates in its two limbs between the protection of the health and safety of the public, and the public interest. The public interest is a broader concept, encompassing wider community interests such as the standards to which human conduct is to be held: see Director of Public Prosecutions v Smith (1991) 1 VR 63 ([31], [35]).
(iii) The Tribunal’s failure to properly apply s 150 constituted a constructive failure to exercise jurisdiction, and an error on the face of the record ([35]).
(iv) Further, the Tribunal erred by treating the principles set out in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 (Crickitt No 2) as applicable to s 150 proceedings ([44]).
(v) The Tribunal in Crickitt No 2 erred:
(a) by extracting a passage from R v Medical Board of Australia [2013] WASAT 28 which cited a passage from another case, while ignoring the fact that the Tribunal in that case went on to expressly reject that passage, relating to the applicability of the “Briginshaw principle or approach” in s 150 proceedings ([41]);
(b) by treating the Briginshaw principle as applicable to s 150 proceedings, when it is not ([41]);
(c) to the extent that it treated R v Medical Board of Australia as authority for the proposition that, when making a determination under s 150, a relevant Council or Tribunal must form a “reasonable belief” that the practitioner poses a “serious risk” to persons, where neither of those requirements appear in the wording of s 150 ([42]); and
(d) to the extent that it treated Berger v Council of the Law Society of New South Wales [2013] NSWCA 336, which dealt with a different statutory provision, as applying a requirement to s 150 proceedings that a practitioner “presents such an unacceptable risk to clients, the public generally, or the administrative of justice that it is necessary that their certificate be suspended” ([43]).
(vi) Accordingly, the Tribunal’s decision was set aside ([35], [44]).
(vii) Although the Pharmacy Council submitted that it would be preferable for the Court to substitute its own decision for that of the Tribunal, Harrison AsJ decided to remit the matter, on the basis that “some of the Tribunal members have expertise in the area of public interest of pharmacists and of their profession”, which the Court does not possess ([47]).
Read the decision on the NSW Caselaw website.
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| New South Wales Court of Appeal
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| Ghosh v Medical Council of New South Wales [2020] NSWCA 122
26 June 2020 - Brereton JA, Emmett AJA, Simpson AJA
In sum: The Court of Appeal allowed an appeal from a decision in the Occupational Division of NCAT on the basis that the Tribunal erred in giving less weight to the evidence of witnesses because they were not called or cross-examined; made findings affecting Dr Ghosh’s credit that were not reasonably open to it; and failed to address the critical question of whether allowing Dr Ghosh to practise would involve an unacceptable risk to the public.
Facts: The appellant Dr Ghosh was a registered medical practitioner. The respondent Medical Council of New South Wales (the Council), in a hearing convened under s 150 of the National Law concluded that Dr Ghosh’s registration should be suspended until her mental health was assessed ([17]-[19]).
Upon Dr Ghosh’s application for review under s 150A of the National Law, although not satisfied that there was any relevant change in circumstances as required by s 150A(4), the Council substituted for the suspension a condition that Dr Ghosh not practise medicine ([20]-[21]).
Dr Ghosh appealed against both the s 150 decision and the s 150A decision to the Occupational Division of NCAT. The Tribunal dismissed the appeal and confirmed the non-practising condition, essentially on the basis that it preferred the evidence of Dr Newnham (who was cross-examined), who provisionally diagnosed Dr Ghosh with schizophrenia, to that of four other psychiatrists (who were not cross-examined) in whose opinion the appellant did not have a major psychiatric illness. In particular, the Tribunal accepted Dr Newnham’s opinion that the public would not be adequately protected if Dr Ghosh were permitted to resume practise ([22]).
Amongst other matters taken into account by the Tribunal was a conclusion that Dr Ghosh had attempted to mislead the Tribunal by altering a transcript of the s 150A hearing. That alteration was the insertion of the words “she’s full of crap”, attributed to one of the Council’s delegates, which did not appear in the official transcript of the hearing, but did appear (and were bolded and underlined) in Dr Ghosh’s copy, separately obtained. The Tribunal’s finding that Dr Ghosh was responsible for the alteration substantially affected its conclusions as to her credit, character and fitness ([74]-[76], [111]).
Dr Ghosh appealed to the Supreme Court.
Held (allowing the appeal and remitting the matter to NCAT to be heard by a differently constituted panel):
Whether the Council had the power to vary its s 150 decision notwithstanding that it did not find a change in the appellant’s circumstances – YES
(i) Although, as the Council did not find a change in circumstances, s 150A(4) of the National Law precluded the Council from varying its earlier s 150 decision under s 150A, s 150C(2) would authorise the substitution of a condition where a suspension was terminated (Brereton JA at [33], Emmett AJA agreeing).
(ii) In any event, the s 159 merits appeal still required NCAT to exercise afresh the power of the Council under s 150, and in so doing it was not constrained by s 150A(4) (Brereton JA at [34]).
(iii) There is, at least potentially, a conflict between s 150A(3) and (4), and s 150C. Since s 150C was not referred to in argument, the relationship between the two provisions should be left to an occasion when it directly arises and when the court has had the benefit of full argument (Simpson AJA at [145]-[146]).
Whether a non-practising condition is a condition relating to the practitioner’s profession within s 150 – YES
(iv) The only limitation on the types of condition that may be imposed on a practitioner’s registration is that the condition must “relate to the practitioner’s practising the health profession”. A non-practising condition does so (Brereton JA at [39], [42]).
(v) There is a distinction between suspension and a non-practising condition. The former has the consequence that the practitioner is taken not to be registered during the period of the suspension. The latter leaves the practitioner registered, with the associated privileges, other than the right to practise, and is a more moderate measure than suspension (Brereton JA at [41]).
(vi) Simpson AJA disagreed on this point, stating that a condition “relating to a practitioner’s practising a health profession” imports that the practitioner practises the health profession, but in the limited way permitted by the condition. It is contradictory to impose a condition that precludes practise (Simpson AJA at [177]).
Whether the Tribunal erred in preferring Dr Newnham’s evidence to the evidence of other witnesses, on the basis that they were not called or cross-examined – YES
(vii) The Tribunal erred in taking into account, as a reason for preferring Dr Newnham’s evidence, that the professional witnesses whose reports were relied on by Dr Ghosh were not called; and in failing have regard to the circumstance that their evidence went unchallenged by cross-examination (Brereton JA at [68]-[72]).
(viii) As the other psychiatrists’ reports were tendered and admitted without objection, in the absence of an indication from the Council that they were required for cross-examination, there was no reason why Dr Ghosh should have called them, and no reason why their not being called should have detracted from her credibility or the weight of their reports (Brereton JA at [68]).
(ix) Were this merely a matter of preferring one expert to another, it would not be an error of law. However, the Tribunal erred at law by treating the fact that the witnesses favourable to Dr Ghosh were not cross-examined as adverse to their acceptance, rather than as a factor weighing in their favour (Brereton JA at [71]-[72]).
Whether the Tribunal erred in its conclusion as to credit – YES
(viii) There was an entirely innocent explanation for the words “she’s full of crap” appearing in one version of the transcript, and the words “she was very forthright” appearing in the other, namely that the same sounds on the audio file were heard differently by two different transcribers (Brereton JA at [81]).
(ix) Given the gravity of a finding about dishonesty, and the availability of an obvious and more probable explanation for the discrepancy to which the Tribunal did not advert, it was not reasonably open to the Tribunal to conclude that the disputed words were inserted by Dr Ghosh (Brereton JA at [85], [111]).
Whether the Tribunal failed to address the critical question of whether allowing Dr Ghosh to practise would involve an unacceptable risk to the public – YES
(x) On an appeal from a s 150 or s 150A decision, the essential task of the Tribunal is to consider whether, on the material before it, allowing the practitioner to practise, or to practise with certain conditions, involves an unacceptable risk to the health and safety of the public or to the public interest (Brereton JA at [98]).
(xi) The Tribunal stated a number of concerns about Dr Ghosh’s character, however, it did not explain why those concerns posed such an unacceptable risk as to require her immediate exclusion from practising her profession (Brereton JA at [101]).
(xii) The Tribunal failed to take the essential step of identifying what the risk was, and whether it was unacceptable. Moreover, despite the requirement that it re-exercise the s 150 discretion afresh, it effectively treated the appellant as bearing some onus to adduce evidence that displaced the need for the non-practising condition (Brereton JA at [102]).
(xiii) The Tribunal thus failed to address the essential question which the proper conduct of a hearing de novo required of it (Brereton JA at [103], Emmett AJA agreeing at [135]).
Read the decision on the NSW Caselaw website.
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| Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111
12 June 2020 - Bell P, Macfarlan JA, Emmett AJA
In sum: The Court of Appeal allowed an appeal from a decision of the Occupational Division of NCAT, on the basis that the Tribunal erred in failing to give reasons why it had departed from the majority of expert evidence before it about whether the appellant’s actions were within the reasonable range of responses that a practitioner in his circumstances could have.
Facts: The appellant, Dr Chatoor, was a cardiologist. A Professional Standards Committee of the Medical Council found that he was guilty of unsatisfactory professional conduct on the basis of two complaints, being:- that he had inserted a permanent pacemaker in a patient without sufficient clinical indication (the first particular); and
- that he had approved the patient’s transfer between hospitals where there was no definite arrangement for another specialist to review her before discharge (the second particular).
As a result of these findings, the Committee reprimanded Dr Chatoor and imposed practising conditions on his registration as a medical practitioner.
Dr Chatoor appealed to the Tribunal under s 158 of the National Law. The Tribunal affirmed the Committee’s finding, in respect of each complaint, that Dr Chatoor had engaged in unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law, and affirmed the decision to reprimand Dr Chatoor and impose conditions on his registration.
Dr Chatoor appealed to the Supreme Court under cl 29 of Sch 5 to the NCAT Act.
Held (allowing the appeal, setting aside the Tribunal’s orders, and ordering that Dr Chatoor be “cautioned” in respect of the second particular only):
Whether the Tribunal failed to apply the statutory test for unsatisfactory professional conduct and have proper regard to the expert evidence before it
In relation to the first particular – YES
(i) The question the Tribunal was required to answer for the purposes of s 139B(1)(a) was whether insertion of a pacemaker in the patient was within the range of reasonable responses that a practitioner of Dr Chatoor’s training and experience could have had to the situation with which he was presented (Macfarlan JA at [41]).
(ii) Four out of the five expert witnesses at various points in their evidence put Dr Chatoor’s conduct within the range of reasonable conduct (Macfarlan JA at [50]).
(iii) While several indicated that, in the particular circumstances surrounding the patient, they would not have directed the insertion of a pacemaker, it was by no means clear that any of them said that to do so demonstrated knowledge, skill or judgment significantly below the standard reasonably expected of a practitioner of a level of training or experience equivalent to that of Dr Chatoor (Emmett AJA at [72]).
(iv) The overseas guidelines did not adamantly condemn Dr Chatoor’s decision and moreover compliance with them was not mandatory (Macfarlan JA at [49]-[50]).
(v) Whilst the Tribunal was not bound by the expert opinions, and was entitled to take into account the professional expertise and experience of the medical professionals sitting on the Tribunal, it needed to state why it thought it appropriate to depart from the expert evidence if it decided to do so. It did not state this. Instead it proceeded on the erroneous basis that the expert evidence supported its decision (Macfarlan JA at [51]).
(vi) In these circumstances, the decision of the Tribunal could not be sustained (Macfarlan JA at [52], Emmett AJA at [72]).
In relation to the second particular – NO
(vii) Dr Chatoor admitted the accuracy of this particular and that he had departed from normal practice (Macfarlan JA at [54], Emmett JA at [73]).
(viii) The expert evidence supported the conclusion that Dr Chatoor had failed to meet the standards reasonably to be expected of him (Macfarlan JA at [54], Emmett AJA agreeing at [74]).
(ix) The Tribunal was also entitled to draw on the experience and expertise of its professional members: Gray v Geoff Groom Building Pty Ltd [2019] NSWSC 1081 at [23]-[27] (Macfarlan JA at [55]).
(x) In these circumstances, it was open to the Tribunal to conclude that Dr Chatoor’s conduct fell significantly below the standard reasonably to be expected of him. Whilst Dr Chatoor attempted to make the relevant arrangement, his efforts to do so were inadequate (Macfarlan JA at [55], Emmett AJA agreeing at [74]).
(xi) However, the Tribunal did not fail to identify the standard which it applied, as it was not required to do more than apply the statutory definition of unsatisfactory professional conduct in s 139B of the National Law. Certainly in a case such as the present, it was unnecessary, and indeed would have been undesirable, for the Tribunal to restate these simply expressed words (Macfarlan JA at [57]).
Whether the Court of Appeal should re-exercise the Tribunal’s power to make an order consequent on the establishment of a complaint –YES
(xii) The Tribunal’s order imposing conditions on Dr Chatoor’s registration should be set aside because it was based on the first particular being established (Macfarlan JA at [58]).
(xiii) The reprimand should also be set aside because it was expressed as a single order referable to both particulars (Macfarlan JA at [59]).
(xiv) Dr Chatoor’s conduct the subject of the second particular warranted the lesser sanction of a caution (Macfarlan JA at [61], Emmett AJA agreeing at [75]).
Read the decision on the NSW Caselaw website.
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| | Decisions of Interest Bulletin
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| | Wigmans v AMP Ltd [2020] NSWCA 104
APPEALS – interlocutory orders – appeal pending to High Court from permanent stay of one representative proceeding – interlocutory orders made in competing representative proceeding – whether House v King error in making orders which would render High Court appeal nugatory CIVIL PROCEDURE – representative proceedings – Pt 10 Civil Procedure Act 2005 (NSW) – orders and notices advising group members of representative plaintiff’s and defendants’ joint intention to apply for orders excluding group members who fail to register from participating in any settlement – whether orders beyond power – whether orders distinguishable from Haselhurst v Toyota Motor Corporation Australia Ltd [2020] NSWCA 66 |
| James v Australia and New Zealand Banking Group Ltd [2020] NSWCA 101
JUDGMENTS AND ORDERS – setting aside – consent judgment – general power to set aside judgment or order – challenge to validity of agreement – whether judgment based on agreement – Uniform Civil Procedure Rules 2005 (NSW), r 36.15(1) JUDGMENTS AND ORDERS – amending, varying and setting aside – consent judgement – orders entered – finality of entered orders
CONTRACTS – grounds for setting aside – misleading or deceptive conduct – non-disclosure of information – relevance of actual or constructive knowledge of silent party as to complainant’s beliefs – relevance of undisclosed beliefs of complainant
CIVIL PROCEDURE – Court of Appeal – leave to appeal – dismissal – lack of issue of principle, question of general public important or an injustice to the applicant going beyond merely arguable |
| Carter Capner Law v Clift & Ors [2020] QCA 125
PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – COSTS AGREEMENTS – OTHER MATTERS – where the appellant entered a costs agreement with each respondent in relation to a personal injuries claim – where the costs agreements were described as “no-win no-fee” – where the scale of costs under the agreements contained an item for general care and conduct – where the agreement contained a proviso that where a no-win no-fee arrangement applied, the allowance for general care and conduct must not be less than 15 per cent of the aggregate of all time-based items performed by the appellant – whether this proviso was an “uplift fee” under s 300 of the Legal Profession Act 2007 (Qld) – whether the costs agreements were therefore invalid because they did not comply with the requirements in s 324 of the Legal Profession Act relating to disclosure of uplift fees PROFESSIONS AND TRADES – LAWYERS – REMUNERATION – BILLS OF COSTS – POWER TO ORDER DELIVERY – where the respondents’ files were transferred to another law practice – where the respondents applied for an order that the appellant provide each of them with a written report of legal costs incurred by the appellant to date pursuant to s 317(1) of the Legal Profession Act – where the primary judge ordered the appellant to provide itemised bills of its costs to each respondent pursuant to the inherent jurisdiction of the Supreme Court – whether the appellant should be permitted to adduce evidence that the respondents did not request an itemised bill of costs – whether the respondents needed an itemised bill of costs – whether it was appropriate to exercise the discretionary power in the inherent jurisdiction to order the appellant to deliver itemised bills of costs to the respondents |
| Ghosh v Medical Council of New South Wales [2020] NSWCA 122
ADMINISTRATIVE LAW — Particular administrative bodies — NSW Civil and Administrative Tribunal – Appeal under (NSW) Health Practitioner Regulation National Law s 159 against decision of Council for a health profession under s 150 and 150A – Hearing de novo – The essential task of the Tribunal in such an appeal ADMINISTRATIVE LAW — Hearing rule — Rules of evidence — Examination and cross-examination – Second aspect of the rule in Browne v Dunn (1894) 6 R 67 – Whether Tribunal erred in failing to have regard to the circumstance that evidence not accepted by Tribunal went unchallenged by cross-examination
ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Findings of fact – Where obvious and innocent explanation not considered in circumstances where findings were grave, devastating and infected the whole decision – Error established
ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Decision not authorised — Statutory construction – Hearing and review of decision under (NSW) Health Practitioner Regulation National Law, ss 150, 150A – Whether Council precluded from varying its earlier s 150 decision under s 150A where there is no finding of a change in circumstances by s 150A(4) – Where s 150C(2) authorises the variation of a decision without such limitation |
| Maguire v Parks Victoria [2020] VSCA 172
JUDICIAL REVIEW – Standing - Whether applicant had standing to challenge decision on basis of lack of public consultation – Applicant asserted that he would participate in public consultation – Whether interference with claimed amenity sufficient to support standing – Absence of a special interest – Standing not established – Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493; [1980] HCA 53, applied – Leave to appeal refused. |
| | 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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