Australia, Nov. 30 -- New South Wales Land and Environment Court issued text of the following judgement on Nov. 29:

1. LEEMING JA: Mr Sava Tsolis, a psychologist who has been found guilty of unsatisfactory professional conduct and professional misconduct, seeks leave to appeal from an order made by NCAT, constituted by the Deputy President Hennessy ADCJ, on 3 May 2024 that "[t]he inquiry should be continued and a determination made by the remaining members of the Tribunal". He contends that s 165C of the Health Practitioner Regulation National Law 2009 (NSW) ("National Law") does not authorise the order, the effect of which will be that when determining what orders should be made consequent upon the findings, the Tribunal will be constituted by the same legally-qualified member, the same lay member, but only one of the two psychologists who have so far heard the matter.

2. Clause 29(4) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW) confers a right of appeal in a "non-lawyer appeal" on any question of law. The appeal is assigned to the Court of Appeal, having regard to the Deputy President's status as a judicial officer (see Supreme Court Act 1970 (NSW), s 48(1)(a)(vi) and (2)(f)). It was common ground that the decision was interlocutory, and therefore required leave pursuant to cl 29(6)(a), but there was a concurrent hearing and the parties exchanged full written and oral submissions as if there had been a grant of leave, as well as on the question of leave.

3. I shall follow the approach taken by the parties and the Tribunal and refer to the "National Law", noting that the references are to the provisions in the schedule to a Queensland statute subject to numerous modifications, made applicable by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). The regime is explained in Callan v Medical Board of Australia [2024] NSWSC 336 at [16]-[20] and Reimers v Medical Board of Australia [2024] NSWCA 164 at [30]-[32]. Despite its name, most of the salient provisions for present purposes are modifications whose operation is confined to New South Wales.

Background

4. The background is uncontroversial. Mr Tsolis practises as a psychologist. The respondent ("HCCC") made an application for disciplinary findings and orders on 4 June 2021 following a complaint brought by its Director of Proceedings. Findings of unsatisfactory professional conduct and professional misconduct were sought, arising out of what ultimately developed into an inappropriate personal relationship between Mr Tsolis and one of his patients. There ensued a "Stage 1" hearing lasting four days during which both the psychologist and the patient were cross-examined, followed by a day of submissions on 27 May 2022, before the Tribunal constituted by a legally-qualified senior member, two senior members who were psychologists, and one lay member, in accordance with s 165B of the National Law. The Tribunal found that all three grounds of complaint were established and found that Mr Tsolis was guilty of both unsatisfactory professional conduct and professional misconduct: Health Care Complaints Commission v Tsolis [2022] NSWCATOD 109. Order 7 made by the Tribunal on 28 September 2022 was that "[t]he matter be listed for directions in relation to the Stage 2 hearing and, if necessary, the redaction of these reasons".

5. The Court was told that there had been no formal delineation of issues to be determined at the "Stage 1" hearing, perhaps because that hearing preceded Health Care Complaints Commission v Robinson [2022] NSWCA 164, which decision noted the desirability of there being some precision where (as is commonly but not invariably the case) a hearing was split into two "stages" as to what was encompassed in each stage.

6. There has not been a "Stage 2" hearing at which appropriate remedial orders will be the subject of evidence and submissions. Instead, Mr Tsolis has exercised a right of appeal to this Court from the "Stage 1" determination, but that was dismissed: Tsolis v Health Care Complaints Commission [2023] NSWSC 1599.

The decision from which this appeal is brought

7. While that appeal was reserved, one of the psychologists who had been appointed as an "occasional member" of the Tribunal was appointed to the Psychology Council of NSW as a professional member. The view was taken that she should not continue to participate in proceedings in the Tribunal. Following an exchange of submissions, the Deputy President made the order that the inquiry should be continued and a determination made by the remaining three members of the Tribunal as originally constituted, and it is from that order that leave to appeal is sought. Her Honour referred to a dictionary definition of "inquiry", noted that a decision was distinct from an inquiry, and encapsulated her conclusion at [12]:

If my understanding of the text is correct, the inquiry has not yet been completed, even though a Stage 1 decision has been made in respect of an inquiry. The legislative context, the purpose of the provision and the consequences of an alternative meaning support that interpretation.

8. Her Honour noted that the legislation proceeded on the basis that there would be a single inquiry following the receipt of a complaint, as did Simpson AJA's reasons in Health Care Complaints Commission v Robinson at [52], and that purpose and context supported that construction.

9. The central provision is s 165C of the National Law, which provides as follows:

165C Effect of vacancy on Tribunal [NSW]

(1) If one of the members (other than the presiding member) constituting the Tribunal for the purpose of conducting a hearing under this Law vacates office for any reason before an inquiry or appeal is completed or a decision is made in respect of an inquiry or appeal, the inquiry or appeal may be continued and a determination made by the remaining members of the Tribunal.

(2) If more than one of the members vacate office, or the presiding member vacates office, for any reason before the Tribunal has completed an inquiry or appeal or made a determination in respect of an inquiry or appeal, the inquiry or appeal is terminated.

(3) When an inquiry or appeal is terminated, the Tribunal may be reconstituted in accordance with this Division for the purposes of conducting a new inquiry or appeal in respect of the matter concerned.

(4) In this section-

presiding member means the member referred to in section 165B(2)(a).

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1937495bdfff587c9bcb6a58)

Disclaimer: Curated by HT Syndication.