Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Reimers v Health Care Complaints Commission [2013] NSWCA 366
• Hearing dates: 30 October 2013
• Decision date: 30 October 2013
• Before: Macfarlan JA at [1], [26] and [28]; Meagher JA at [27]; Barrett JA at [2]

Decision

1. Summons dismissed.

2. Notice of motion filed on 28 March 2013 dismissed.

3. That Gerrit Reimers pay the costs of Health Care Complaints Commission of proceedings 2013/78429 in this Court, such costs to be assessed on an indemnity basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADMINISTRATIVE LAW - judicial review - discretion to refuse relief - application by deregistered medical practitioner for declarations that decision and orders of the Medical Tribunal made in 2003 are invalid - earlier application by the same applicant for order quashing the decision dismissed - where new grounds advanced on the present application ought reasonably to have been advanced in support of the earlier application - whether the present application is an abuse of process
• Legislation Cited: Medical Practice Act 1992; Uniform Civil Procedure Rules 2005
• Cases Cited: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575; Henderson v Henderson (1843) 3 Hare 100; 67 ER 313; Kong v Minister for Immigration and Citizenship [2011] FCA 1345; (2011) 199 FCR 375; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589; Reimers v Health Care Complaints Commission [2012] NSWCA 317; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198
• Category: Principal judgment
• Parties: Gerrit Reimers (Applicant); Health Care Complaints Commission (Respondent)
• Representation: Counsel: Applicant in person; Ms K Richardson (Respondent); Solicitors: Applicant in person; Sarah Connors, Health Care Complaints Commission (Respondent)
• File Number(s): 2013/78429

Judgment

1 MACFARLAN JA: I will ask Barrett JA to deliver the first judgment.

2 BARRETT JA: Before the Court are a summons and a notice of motion filed by Gerrit Reimers (to whom I shall refer as "the applicant") in which Health Care Complaints Commission (or "HCCC") is named as respondent. There is also a notice of motion filed by HCCC naming the applicant as respondent.

3 The applicant's summons was filed on 14 March 2013. It seeks to invoke the jurisdiction of the Supreme Court, as the superior court of record for the State, to review a decision of the Medical Tribunal of New South Wales made on 4 November 2003 in proceedings brought in the Tribunal by HCCC against the applicant.

4 HCCC's notice of motion filed on 25 March 2013 seeks an order under rule 13.4 of the Uniform Civil Procedure Rules 2005 that the proceedings brought by the applicant be dismissed or an order under rule 14.28 that his summons be struck out. The applicant's notice of motion filed on 28 March 2013 seeks summary judgment on the summons under rule 13.1.

5 The applicant was unrepresented at the hearing before us and conducted his own case. Ms Richardson of counsel appeared for HCCC to oppose the grant of the relief sought by the applicant.

6 The applicant was a medical practitioner. He worked as an anaesthetist at Ryde Hospital. The Medical Tribunal's decision of 4 November 2003 was that the applicant had been guilty of professional misconduct and that his name should be removed from the register of medical practitioners. The Tribunal made orders accordingly.

7 The present proceeding is not the first in which the applicant has sought this Court's intervention in relation to the Tribunal's decision and orders of 4 November 2003.

8 The applicant initiated an appeal but did not do so until some eight years after the statutory deadline. The appeal was dismissed apparently by consent on 7 February 2012. The applicant proceeded instead with an application to this Court in its supervisory jurisdiction seeking judicial review of the Tribunal's decision and the quashing of the whole of the decision and orders.

9 That application for judicial review and relief in the nature of certiorari was initiated on 7 February 2012 and dismissed on 25 September 2012: Reimers v Health Care Complaints Commission [2012] NSWCA 317.

10 The case the applicant sought to make in the earlier judicial review proceedings was that the Tribunal had erred in law by finding both that the applicant's conduct was the consequence of a mental or physical disorder and that it was not the consequence of such a disorder. More precisely, the applicant stated grounds as follows in his 2012 summons:

"The Medical Tribunal acted unreasonably. The Medical Tribunal made findings that the conduct complained of was due to a physical or mental disorder and, at the same time, that it was not due to a physical or mental disorder. This is an error of law that invalidates the Medical Tribunal's purported exercise of its power to deregister."

11 The Court (Basten JA; Campbell and Hoeben JJA concurring) disposed of the matter on discretionary grounds arising from the very substantial and unexplained delay in the initiation of the proceedings and the prejudicial effect that the passage of time would inevitably have on any rehearing, should the Tribunal's decision and orders be set aside. The Court did, however, deal also with the substantive grounds on which the applicant relied since their viability or otherwise was relevant to the exercise of discretion. The Court found those grounds to be devoid of merit. It was on that twofold basis that the application for judicial review was dismissed.

12 The relief the applicant now seeks is, in terms, declaratory relief. He seeks two declarations of invalidity in respect of the Tribunal's orders of 4 November 2003. In doing so, however, he clearly invokes the Supreme Court's supervisory jurisdiction in the same way as if the claims had been, in terms, claims for prerogative relief. While conceptual differences exist between an application to have a decision of an administrative body quashed and an application to have such a decision declared invalid, each type of application properly belongs within the Supreme Court's supervisory jurisdiction to review and control the proceedings of such bodies: see generally Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135.

13 On the hearing of this matter, the Court adopted a procedure that addressed at once the central point raised by HCCC in response to the summons, namely, that the summons represents an abuse of the process of the court. Submissions on that matter were heard first from counsel for HCCC and then from the applicant.

14 The applicant's objective in bringing his earlier challenge, which was by way of application for relief in the nature of certiorari as distinct from declaratory relief, was the quashing of the Medical Tribunal's decision and orders. His objective in the present proceedings is a judicial determination that the decision and orders are invalid. As a matter of substance (although not in the conceptual sense to which reference has just been made), the two objectives coincide precisely. The applicant wishes to establish that the Tribunal's orders have no force or effect. He thus seeks now an outcome in substance corresponding with that he was denied by this Court's determination of 25 September 2012, although mere declarations, if granted, would probably need to be supplemented in some way to produce a clear-cut outcome. Nevertheless, the applicant is, in short, making a renewed attempt to obtain the substantive result that he failed to obtain previously.

15 It may be accepted that the reasoning the applicant advances now differs from that on which he relied on the earlier occasion. His complaint as now formulated is advanced on two grounds: first, that the Tribunal was not authorised to order deregistration in the absence of a finding that the conduct in question would recur if conditions were placed on the registration; and, second, that the orders were made for the purposes of s 29(3) of the Medical Practice Act 1992 in circumstances where the matter was not an appeal pursuant to an order made under s 25 or s 26 of that Act. Those complaints were not made in the proceedings commenced on 7 February 2012 and determined on 25 September 2012. The substantive complaint there was as I have earlier stated.

16 It is obvious that nothing happened between 7 February 2012 and 14 March 2013 to bring into being or somehow to unveil the grounds now sought to be agitated in support of the proposition that the Tribunal's orders are invalid or should be set aside. Those grounds could have been formulated and articulated on 7 February 2012 or, indeed, earlier.

17 It is apposite to quote from the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at [36]:

"Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata, issue estoppel, and what has come to be known as Anshun estoppel all find their roots in that policy. ... Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel."

18 The applicant has only ever considered himself entitled to one substantive remedy - an order the effect of which is that he is not bound by the Medical Tribunal's orders. In seeking that result in the judicial review proceedings initiated in 2012, the applicant put forward one ground or set of arguments. He did not put forward the grounds and arguments on which he now seeks to rely. But those grounds and arguments were, in terms of the formulation of Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 598 (citing Henderson v Henderson (1843) 3 Hare 100; 67 ER 313), points "which properly belonged to the subject of [the] litigation". Each was a point which the applicant, "exercising reasonable diligence, might have brought forward at the time".

19 The question posed by the Anshun formulation is whether the line of argument sought to be advanced in these present proceedings was "so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it" in that first action (Anshun at 602). The answer, to my mind, cannot be in doubt. The applicant was fully able to advance in February 2012 the twofold complaint that he now seeks to agitate. It is not as if further evidence was needed or some other obstacle stood in the way. It was simply a matter of making new and different arguments in relation to clearly established circumstances. There was no reason why those arguments should have been held back, at that stage, if the applicant intended to rely on them at all. They were so relevant to the case sought to be advanced on the earlier occasion that it was unreasonable not to rely on them.

20 Ms Richardson relied also on the decision of this Court in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 but, in the circumstances of this case, I do not think that that authority adds materially to the analysis, although it is useful to note the characterisation by Handley JA (with the concurrence of Mason P and Heydon JA) at [28]:

"The present proceedings are an attempt to litigate or re-litigate issues which were either decided or are barred by the earlier proceedings."

21 Noting that Anshun and allied principles are applicable to judicial review proceedings (Kong v Minister for Immigration and Citizenship [2011] FCA 1345; (2011) 199 FCR 375 at [35]), I am of the opinion that it would be oppressive to HCCC - in the sense reflected by the maxim nemo debet bis vexari pro una et eadem causa (a person ought not be twice vexed for one and the same cause) - for the Court to entertain the merits of the claim the applicant makes by means of his summons. The proceedings are properly characterised as an abuse of the process of the court and should be dismissed accordingly. The same considerations warrant dismissal as a matter of discretion.

22 Despite what has just been said, it is relevant to recall that the earlier proceedings in this Court were disposed of on the footing that the passage of time warranted exercise of the court's discretion against the grant of the relief sought, even if some substantive basis for the grant of the relief had been shown. A further year has now passed and the same considerations of prejudice through the passage of time operate today even more strongly in favour of the same exercise of discretion.

23 For all these reasons, I am of the opinion that the applicant's summons and notice of motion should be dismissed with costs. I am also of the opinion that the case that the applicant sought to bring was so obviously doomed to fail as an abuse of process - and should have been seen from the beginning to be of that quality, particularly in light of the clear flagging of that matter in a letter of 21 March 2013 from HCCC - that the costs should be assessed on an indemnity basis.

24 In these circumstances, it is unnecessary to deal separately with HCCC's notice of motion.

25 I propose orders as follows:

1. Summons dismissed.

2. Notice of motion filed on 28 March 2013 dismissed.

3. That Gerrit Reimers pay the costs of Health Care Complaints Commission of proceedings 2013/78429 in this Court, such costs to be assessed on an indemnity basis.

26 MACFARLAN JA: I agree with Barrett JA.

27 MEAGHER JA: I also agree with Barrett JA.

28 MACFARLAN JA: The orders of the Court are as proposed by Barrett JA.

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Decision last updated: 31 October 2013