Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Reimers v Health Care Complaints Commission [2012] NSWCA 317
• Hearing dates: 25 September 2012
• Decision date: 25 September 2012
• Before: Basten JA at [1]; Campbell JA at [24]; Hoeben JA at [28]

Decision

(1) Dismiss the summons and order the applicant to pay the Commission's costs, other than costs incurred with respect to the Commission's motion.

(2) Dismiss the Commission's motion with no order as to costs.

[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 filed 8 years after decision complained of - whether lapse of time explained or justified - whether risk of prejudice if complaints were remitted - whether complaints would be remitted; MEDICAL PRACTITIONERS - professional misconduct - practitioner's addiction to narcotics affected practise - Medical Tribunal found that practitioner had engaged in professional misconduct and was impaired - whether findings inconsistent - whether manifest error of law; PROCEDURE - judicial review - summary dismissal - want of due despatch - application filed 8 years after impugned decision - whether want of due despatch in prosecution of the proceedings includes delay in commencement - whether appropriate to invoke uniform rule in judicial review proceedings where relief is discretionary - Uniform Civil Procedure Rules 2005 (NSW), r 12.7; WORDS & PHRASES - "prosecute the proceedings" - Uniform Civil Procedure Rules 2005 (NSW), r 12.7
• Legislation Cited: Constitution, s 75(v); Medical Practice Act 1992 (NSW), ss 2A,72, 90; Supreme Court Act 1970 (NSW), s 69; Uniform Civil Procedure Rules 2005 (NSW), r 12.7
• Cases Cited: Lee v Cha [2008] NSWCA 13; The Queen v Veen [No 2] [1988] HCA 14; 164 CLR 465; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82; Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129; Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; 60 NSWLR 558
• Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at [12.180]
• Category: Principal judgment
• Parties: Gerrit Reimers (Applicant); Health Care Complaints Commission (First Respondent); Medical Tribunal of NSW (Second Respondent)
• Representation: Counsel: Applicant in person; Ms K M Richardson; Solicitors: Applicant self-represented; Health Care Complaints Commission (First Respondent); I V Knight, Crown Solicitor (Second Respondent)
• File Number(s): CA 2012/40384

Decision under appeal

• Jurisdiction: 9117
• Date of Decision: 2003-11-04 00:00:00
• Before: Patten DCJ; Dr M Pasfield; Dr R Traill; Ms K Kusuma
• File Number(s): 2002/40011

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 19 May 2003 the Medical Tribunal heard 12 complaints lodged by the Health Care Complaints Commission ("the Commission") against the applicant. The complaints related to the applicant's addiction to narcotics and the problems that this addiction caused in his work life. At the time of the conduct giving rise to the complaints he was an anaesthetist.

On 4 November 2003 the Tribunal found that the applicant was guilty was professional misconduct. The Tribunal ordered that the applicant's name be removed from the Register of Medical Practitioners.

On 7 February 2012 the applicant filed a summons seeking relief in the supervisory jurisdiction of this Court. The applicant alleged that the Tribunal had committed an error of law by finding that his conduct was both the consequence of a mental or physical disorder and that it was not the consequence of such a disorder.

The Commission filed a notice of motion seeking the dismissal of the summons, relying on want of due despatch in prosecuting the proceedings pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), and the reliance of professional bodies in other States on the Tribunal's findings. The issues for determination on review were:

(i) whether the Tribunal's decision was affected by an error of law, and

(ii) whether the summons should be dismissed pursuant to the Commission's motion.

The Court held (per Basten JA, Campbell and Hoeben JJA agreeing), dismissing the summons and the notice of motion:

In relation to (i)

1. Relief should be refused on discretionary grounds. The extraordinary lapse of time has not been explained or justified by the applicant. Further, the potential prejudice to the redetermination of the complaints if remitted to the Tribunal for rehearing is a potential factor militating against the grant of relief. If relief were granted the complaints would have to be reheard: there was no challenge to the validity of the complaints themselves and having unresolved complaints concerning the fitness of a person to practise medicine would be unacceptable in the public interest: [7]-[8]

2. It is not the case that conduct which results from an impairment cannot be professional misconduct. That the applicant continued to practice as an anaesthetist whilst unable to exercise the necessary care, skill and judgment, could reasonably be found to constitute professional misconduct: [11]-[12]

3. It is not manifestly unreasonable to treat misconduct which is the result of an impairment as professional misconduct warranting deregistration. The underlying purpose of a disciplinary order of deregistration is not primarily punitive, but protective: [11], [13]

Medical Practice Act 1992 (NSW), s 2A; The Queen v Veen [No 2] [1988] HCA 14; 164 CLR 465 referred to; Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129 distinguished.

4. Although professional bodies in other States have refused registration on the basis of the determination of the Tribunal, there is no reason to treat that fact as a basis for refusing relief. If the decision were set aside, there would be no bar to the applicant making further applications in other jurisdictions: [20]-[21]

In relation to (ii)

5. The Commission's motion should be dismissed. Rule 12.7 relates to the prosecution of proceedings with due despatch, not to the failure to commence proceedings with due despatch. Relief in the supervisory jurisdiction of the Court can be refused on discretionary grounds and there is no need to invoke the rule in these circumstances: [19]

Judgment

1 BASTEN JA: On 19 May 2003 proceedings were heard in the Medical Tribunal in relation to 12 complaints lodged by the Health Care Complaints Commission ("the Commission") against the applicant. On 4 November 2003 the Tribunal handed down its findings and orders, which were as follows:

"1. That Dr Reimers is guilty of professional misconduct.

2. That the name of Dr Reimers be removed from the Register of Medical Practitioners.

3. That there be no application for review for 10 years from today.

4. That Dr Reimers pay the costs of [the] HCCC.

5. Exhibits may be returned."

2 Pursuant to the Medical Practice Act 1992 (NSW) (as then in force) the applicant had a right of appeal to this Court with respect to the decision of the Tribunal in determining a complaint and in respect of the exercise of the disciplinary powers conferred on the Tribunal: s 90. Such an appeal was required to be made "within 28 days (or such longer period as the Court may allow in a particular case) after the handing down of the decision or the exercise of power against which the appeal is made": s 90(2). It appears that the applicant sought to proceed by way of appeal, but not until 7 November 2011, almost exactly eight years after the Tribunal handed down its determination and made orders against him. The notice of appeal was apparently filed in error, judicial review being the relief sought; the appeal was dismissed, presumably by consent, on 7 February 2012 and replaced by the present summons.

3 Rather than pursue an extension of time for an appeal, the applicant commenced proceedings by way of summons in the supervisory jurisdiction of the Court, on 7 February 2012. The summons raised a single ground in the following terms:

"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."

4 The gravamen of the complaint, as it appeared from the applicant's written submissions, was that the Tribunal found that he suffered, both at the time of the specific instances of misconduct alleged and at the time of the hearing before the Tribunal, from an impairment described as a "substance abuse disorder". The disorder involved addiction to narcotic drugs and their abuse to an extent that it caused problems in his work life, yet he continued to take such drugs.

5 The applicant was, at the time of the misconduct complained of, working as an anaesthetist; at least in part the drugs he abused were misappropriated from hospital stocks.

6 There is no doubt that this Court has a supervisory jurisdiction in relation to the Medical Tribunal and that it has the power to quash decisions of the Tribunal if satisfied that the decisions are affected by jurisdictional error or error of law on the face of the record: Supreme Court Act 1970 (NSW), s 69. Although it may seem anomalous that a decision which, if fully investigated, might be found to be invalid should be allowed to stand, it is nevertheless clear that, at least within appropriate bounds, an order quashing such a decision may be refused in the Court's discretion: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [43]-[60] (Gaudron and Gummow JJ). This Court has suggested that there may be less room for declining relief in the exercise of a discretion where the relief is in the nature of the prerogative writs, as compared with the jurisdiction of the High Court under s 75(v) of the Constitution: Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; 60 NSWLR 558 at [133]-[135] (Spigelman CJ). However, it is also important to consider the different approaches which may arise in respect of an application for an order restraining future conduct and one seeking to set aside a determination already made. Much of the discussion with respect to discretionary relief is concerned with the former category: see, eg, Lee v Cha [2008] NSWCA 13 at [28]-[37].

7 In the present case, there are two factors which militate in favour of a discretionary refusal of relief. The first is the extraordinary lapse of time, which has not been explained, let alone justified, by the applicant. The period of eight years is to be assessed bearing in mind the requirement, absent an extension of time, that any appeal be lodged within 28 days. Although there is no time limit in this State on seeking a quashing order, where limits are imposed in other comparable jurisdictions, the maximum period, subject to judicial extension, is six months: Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at [12.180].

8 The second factor, which is related to the first, involves the possible outcome of the proceedings, were the applicant to succeed. The Commission submitted that there would be significant prejudice if the matter were to be remitted to the Medical Tribunal for a rehearing of the complaints determined in 2003, most of which related to conduct during or prior to the year 2000. In response, the applicant submitted that remittal would indeed be inappropriate and unnecessary. However, that latter submission cannot be accepted. Quashing the decision of the Medical Tribunal would leave the complaints unresolved. There was no challenge to the validity of the complaints themselves and to have unresolved complaints going to the appropriateness of a person practising medicine would be unacceptable in the public interest. Accordingly, the potential prejudice to the redetermination of the complaints is a material factor militating against the grant of relief.

9 The applicant submitted that the correct approach to be adopted, and that which should have been adopted by the Tribunal, would be to refer the question of his impairment to the Medical Board for referral to an Impaired Registrants Panel under s 72 of the Medical Practice Act. However, that course is not open to this Court. It was clearly treated as inappropriate in 2003 and it is not, in any event, an answer to the fate of the complaints of professional misconduct which would be outstanding if the findings and orders of the Tribunal were set aside.

10 A discretionary refusal of relief might not be appropriate, despite the factors noted above, were it demonstrated that, first, there was a legitimate justification for the failure of the applicant to bring the proceedings earlier and, secondly, there was a manifest miscarriage of justice in the Tribunal. As already noted, the first element has simply not been addressed in evidence before this Court and is therefore not satisfied. Given the period of delay and the fact that the applicant has made applications to be registered in Victoria and Queensland (albeit unsuccessfully) in the meantime, it may be doubted that any explanation, let alone justification, could be provided. If available it might have been relied on to seek an extension of time within which to appeal, but was not.

11 Despite that conclusion, it is appropriate to say something about the second element, namely the miscarriage of justice relied upon. The applicant says that if impairment were established, as the Tribunal found, he cannot be guilty of professional misconduct: written submissions, paragraph 9. That proposition, however, elides two ideas which need to be separated. The applicant must say either that conduct which results from an impairment cannot be professional misconduct, or that it is manifestly unreasonable to treat misconduct which is the result of an impairment as professional misconduct warranting deregistration.

12 So understood, the first proposition is untenable. Gross, repeated, incompetent medical practice does not cease to be such because it is caused by an addiction to alcohol, heroin or other drugs. This was not a case where the practitioner was held to be unaware of his condition or its consequences. That he continued to practice as an anaesthetist whilst unable to exercise the necessary care, skill and judgment, could reasonably be found to constitute professional misconduct. The conclusion of the Tribunal that there was professional misconduct was, at least, unsurprising.

13 The second proposition is also untenable. There is no doubt that addiction is a condition which may, perhaps should, evoke sympathy. The degree to which a criminal offence is caused by a mental illness, including addiction, may properly be reflected in the sentence imposed. Nevertheless, "protection of the community" is a relevant sentencing principle and may, within limits of proportionality identified by reference to the seriousness of the offence, extend rather than restrict the sentence: The Queen v Veen [No 2] [1988] HCA 14; 164 CLR 465. But the underlying purpose of a disciplinary order of deregistration is not primarily punitive, but protective. That is not to impose some artificial dichotomy of punitive and protective orders, contrary to Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129. Rather, it is to recognise the primary object of the Medical Practice Act which was "to protect the health and safety of the public by providing mechanisms designed to ensure that ... medical practitioners are fit to practise medicine": s 2A(1). Misconduct which could be classified as professional misconduct may properly lead to deregistration.

14 In short, the applicant's submission that impairment cannot be professional misconduct is true, but only in the sense that an impairment is not conduct. An impairment may manifest itself in conduct or, to reverse the relationship, an impairment may explain particular conduct in part or in whole. There is no substance in the complaint that the decisions of the Tribunal on the various complaints were manifestly unreasonable. That being so, the challenges to the deregistration order must also fail.

15 The ground relied on by the applicant being based on a false premise, no serious miscarriage of justice is manifest. Accordingly, without analysing in detail the complaints against the practitioner (one of which involved the death of a patient), nor the reasoning of the Tribunal, the summons may properly be dismissed in the Court's discretion.

16 There is one further factor which should be noted. As will appear from the orders made by the Tribunal, the applicant will be entitled to seek re-registration in a little over one year's time. There is, therefore, a sense in which the belated attempt to set aside the original decision of the Tribunal may be seen as unnecessary. However, that should not be treated as a factor in refusing relief. The adverse findings of the Tribunal will undoubtedly form the basis for consideration of any re-registration application. The Tribunal stated (Reasons, p 42):

"As to whether the Tribunal should fix a time before which an application for review of the order which the Tribunal intends to make, may not be made, the Tribunal feels bound to observe that in its opinion, on the evidence before it, the deficits of skill and character of Dr Reimers are so great as to cast doubt upon whether he will ever be regarded as a fit and proper person to practice medicine. However for the purposes of section 29(3) of the Act, the Tribunal will fix a period of 10 years."

17 This statement does not preclude an application for re-registration, nor prevent such an application being granted. Nevertheless, it provides, whilst it stands, a serious hurdle in the path of re-registration and therefore explains why the applicant, even if belatedly, might wish to see the decision of the Tribunal set aside.

18 In the circumstances, the appropriate course is to dismiss the application.

19 There remains a question as to the costs incurred by the Commission in this Court. Subject to one qualification, the applicant should pay the Commission's costs of the summons. However, some costs appear to have been incurred as a result of a notice of motion filed by the Commission on 1 March 2012 seeking to have the summons dismissed for what was described as "want of due despatch". This language invoked the power of the Court under r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW). There are two difficulties with the Commission's position in respect of that rule. First, given the place of Pt 12 in the Uniform Civil Procedure Rules, the rule would appear to relate to the prosecution of proceedings with due despatch, not to their commencement, or rather the failure to commence proceedings with due despatch. No doubt in a given context the word "prosecute" can include the commencement of proceedings, although not in the phrase "prosecution of proceedings". Further, given that there are specific provisions limiting the time within which most proceedings can be commenced, either absolutely or subject to the court's power to extend time, such an expanded reading of r 12.7, for which the Court was taken to no authority, should not be accepted. While the delay in commencing proceedings may well be a relevant and significant factor in assessing want of prosecution, the rule itself is directed to the dilatoriness in conducting the proceedings. Relief available in the supervisory jurisdiction of the Court is discretionary, as discussed above, and there is no need to seek to invoke this rule in these circumstances.

20 Secondly, the Commission sought to rely upon what it described as "change of circumstances", by which it meant that other professional bodies, in Victoria and Queensland, had dismissed applications by the applicant for registration in those States on the basis of the determination and orders of the Medical Tribunal in this State. The Commission asserted that the applications in those States were based on acceptance of, or acquiescence in, the findings of the Tribunal.

21 Whilst there is no doubt that the applications were made in circumstances where the Tribunal decision was still on foot and its "acceptance" was inevitable, and that the decision of the Medical Tribunal was instrumental in their rejection, if that decision were to be set aside, there would be no bar to the applicant making further applications in other jurisdictions. There is no reason to treat the fact of the other applications as a basis for refusing relief.

22 Accordingly, the motion and the supporting material have not been relied upon for the purpose of disposing of the summons. It is appropriate that the order for costs against the applicant not extend to the Commission's motion.

23 The Court should make the following orders:

(1) Dismiss the summons and order the applicant to pay the Commission's costs, other than costs incurred with respect to the Commission's motion.

(2) Dismiss the Commission's motion with no order as to costs.

24 CAMPBELL JA: I agree with the orders proposed by Basten JA and with his reasons. I would add a brief comment concerning the construction of UCPR 12.7. Rule 12.7 is in the following terms:

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

25 It is in Part 12, the heading of which announces that it is concerned with "Discontinuance, Withdrawal, Dismissal and Setting Aside of Originating Process". The particular Division in which it falls is Division 3, headed "Dismissal of Proceedings et cetera for Lack of Progress". The headings are taken to be part of the Rules, pursuant to s 35 Interpretation Act 1987, and so are an available aid to construction. The heading to Division 3 indicated the purpose of Rule 12.7.

26 Ms Richardson has referred us to a Macquarie Dictionary definition of "prosecute" when used as a verb, which includes at least sometimes "to institute legal proceedings against (a person, etc)" or "to seek to enforce or obtain by a legal process." When those shades of meaning apply, what is being prosecuted is a person or a claim. Those shades of meaning of prosecute are inapt when talking about prosecuting proceedings. Prosecuting proceedings has the shade of meaning of getting on with the conduct of proceedings once they are already begun. It is the shade of meaning that the Macquarie Dictionary captures as "to follow up or go on with something undertaken or begun".

27 That reading of rule 12.7(1) is also harmonious with the provision of rule 12.7(2) which is concerned with lack of due despatch in conducting a defence, which necessarily can only be done once proceedings are on foot.

28 HOEBEN JA: I agree with Basten JA and with the additional remarks of Campbell JA.

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Decision last updated: 28 September 2012