The following three judgment summaries highlight different issues around:
• Procedural fairness in deciding whether to adjourn a hearing
• Fraud on a tribunal and the concept of indifference
• The role of NCAT on an appeal against a decision of the Medical Council under section 150(1) of the National Law.
The summaries were prepared by Michelle Yu, Frederick Jordan Chambers.
EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167
New South Wales Court of Appeal, Bell P, MacFarlan JA and Brereton JA, 6 August 2021
This was an application for leave to appeal from an interlocutory decision of the New South Wales Civil and Administrative Tribunal to refuse to grant the Applicant an extension of time in which to appeal from a decision of the Medical Council of New South Wales (the Council).
In its decision, the Council had imposed a condition on the Applicant’s registration as a health practitioner that she not practice medicine pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law). An appeal to the Tribunal from the Council’s decision had to be made within 28 days of the decision, but the Applicant did not lodge her appeal until over one year later. Consequently, the Applicant was required to seek the grant of an extension of time from the Tribunal.
In determining whether to exercise its discretion to grant the Applicant an extension of time, the Tribunal was required to consider factors including the length of and reason for the delay in making the application, and whether the Applicant had a fairly arguable case. In rejecting the application for an extension of time, the Tribunal did not accept that the Council had denied procedural fairness to the Applicant by refusing to grant her an adjournment, and did not accept that the claimed denial of procedural fairness formed a viable ground of appeal which might have given rise to a fairly arguable case.
The issues to be determined by the court on appeal included, among other things, whether the Tribunal erred in refusing to grant an extension of time.
Held: leave to appeal granted; appeal dismissed.
(1) The Tribunal did not err in its decision to refuse an extension of time in which to appeal: [76], [78]-[79].
(2) The Council’s refusal to grant the Applicant’s adjournment request in relation to the hearing before it was not legally unreasonable, in circumstances where she had been given sufficient notice of the hearing, where an interim protective jurisdiction was being exercised and where the application for an adjournment was raised only the day before the hearing was scheduled. [40]-[75]
(3) A party which has been given ample notice of a hearing cannot complain that there has been a denial of procedural fairness where he or she declined to participate in the hearing and the hearing proceeded in accordance with the adequate notification. Procedural fairness required an adequate opportunity to participate to have been given, and a denial of procedural fairness cannot be generated by a deliberate or conscious decision not to participate in a hearing of which sufficient notice has been given. [67]
Kaur v Minister for Immigration and Border Protection [2021] FCA 1026
Federal Court of Australia, Bromberg J, 27 August 2021
This was an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the then-Migration Review Tribunal (the Tribunal) to affirm the refusal of a Skilled (Provisional) (Class VC) Subclass 485 visa (working visa) application.
At first instance, the primary judge refused the declaration sought by the Appellants that the visa application was invalid due to fraudulent conduct on the part of their migration agent, Mr Ajjan of S&S Migration. In doing so, the primary judge found that that the Appellants had not established that the fraud of Mr Ajjan had stultified the statutory task conferred on the Tribunal, and that the First Appellant had been indifferent to the fraud. Relevantly, the primary judge found that the First Appellant failed to notify the Department of Immigration of the fraud once she learnt of it. The primary judge also reasoned that the First Appellant’s apparent preparedness to pay $2,500 to a person she had no basis to trust was demonstrative of her indifference to whether a genuine rather than a fraudulent application for a visa would be made on her behalf.
On appeal the Appellants argued that, among other things, the primary judge had erred by concluding that the First Appellant was indifferent to the fraud of S&S Migration.
Held: appeal allowed; matter to be remitted to the Federal Circuit Court for reconsideration according to law.
(1) The primary judge was wrong to attribute indifference to the First Appellant by reason of her failure to notify the Department. [77]
(2) A preparedness to make an upfront payment for legal services was not suggestive of an inference which the primary judge seems to have improperly drawn, that the making of that payment without further inquiry was an acknowledgment or recognition by the First Appellant that the services being acquired may involve illegitimate conduct. [61]
(3) Obiter: Indifference was a state of mind close to intention or deliberate dishonesty. That was a high bar. It required a finding, close to dishonesty, based on probative evidence as to the subjective state of mind of the person affected by the fraud of a third party. [17]
Medical Council of New South Wales v Smithson [2021] NSWCA 53
New South Wales Court of Appeal, Payne JA, Simpson AJA, Garling J, 8 April 2021
This was an appeal from a decision of the New South Wales Civil and Administrative Tribunal which concerned proceedings brought by the Respondent from a decision made by the Appellant (the Council) to suspend his registration as a psychiatrist under s.150 of the Health Practitioner Regulation National Law (NSW) (the National Law).
The decision of the Council was made on the basis of evidence that gave rise to suspicion that the Respondent had used illicit drugs in 2020. Section 150(1)(a) of the National Law relevantly required the Council to suspend a registered health practitioner’s registration if at any time it was satisfied it was appropriate to do so for the protection of the health or safety of any person or persons, or if satisfied the action was otherwise in the public interest. The Respondent had brought his appeal to the Tribunal under s 159 of the National Law which provided for a right of appeal to the Tribunal against a decision made under s 150(1)(a) of the National Law. Section 159(3) of the National Law provided that the appeal was to be dealt with by way of a new hearing before the Tribunal at which fresh evidence may be given and s 159C(1) of the National Law conferred powers on the Tribunal to
order that the Council’s decision be confirmed, set aside, or set aside with a new decision made.
The Tribunal set aside the decision of the Council and imposed a lengthy list of conditions under which the Respondent would be permitted to practice. In doing so, the Tribunal found that among other things, no guidance was provided by s 159C as to any legal standard to be applied in determining whether to set aside a decision of the Council, and considered that it was necessary for the Respondent to demonstrate that he was now a ‘fit and proper person’ to be registered as a medical practitioner. It went on to find that there was insufficient evidence to determine positively that the Respondent had consumed illicit drugs.
The Council appealed to the Court on seven grounds including that the Tribunal had erred by proceeding on the basis that s 159C did not provide any guidance as to any legal standard to be applied in determining whether to set aside a decision of the Council. The Council also contended that the Tribunal misunderstood its statutory task for reasons including applying legal criteria that did not apply in an appeal to the Tribunal under s 159(1)(a) of the National Law such as requiring the Respondent to demonstrate that he was now a ‘fit and proper person’. The Respondent conceded that the Tribunal’s decision was affected by error in that the Tribunal did not consider the second limb of s 150 of the National Law, being whether an order should be made if satisfied the action is otherwise in the public interest. The parties jointly sought orders to be made by the Court by consent.
Held: appeal allowed; decision of the Tribunal was quashed and remitted to the Tribunal for hearing in accordance with the reasons of the Court.
(1) The concession made by the Respondent was correctly made and should be accepted. The orders proposed by the parties can and, with some modifications, should be made. [18]
(2) The Tribunal was required to undertake a de novo hearing of the issues posed by s 150 of the National Law. The standard to be applied by the Tribunal was that prescribed in s 150. The Tribunal was required to consider whether, on the evidence before it, it was satisfied that an order under s 150 was appropriate. [21]-[27]
(3) The Tribunal was required itself to address the first limb of the s 150 test, protection of public health and safety, and to consider other matters of public interest posed by the second limb. The Tribunal did neither. [28]
(4) It was an error for the Tribunal to approach its task by seeking to determine whether or not the Respondent was “now a ‘fit and proper person’ to be registered as a medical practitioner”. That question may fall to be addressed at a later stage, if disciplinary proceedings are taken against the Respondent. [30]
(5) The Tribunal misunderstood its statutory task by proceeding on the basis that it was part of its statutory role to make a determination of the merits about the underlying issue of the Respondent’s consumption of illicit drugs. [34]
(6) The Tribunal proceeded, at least in part, on the misapprehension that it was conducting a review of the Council’s decision. [39]
