Robinson, Mark --- "Discipline and regulation of health practitioners in the NCAT" [2015] PrecedentAULA 23; (2015) 127 Precedent 31

---

DISCIPLINE & REGULATION OF HEALTH PRACTITIONERS IN THE NCAT

By Mark Robinson SC

The new Civil and Administrative Tribunal of NSW (NCAT), which commenced operation on 1 January 2014, creates a whole new landscape for administrative review and quasi-judicial civil matters in NSW. This article provides an overview of NCAT (the tribunal), focusing on its operation with respect to the regulation and discipline of health practitioners.

THE NEW SUPER TRIBUNAL

NSW’s first true super tribunal, NCAT came into being via the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), which was passed by the NSW Parliament on 4 March 2013. Its objects, set out in s3, are:

‘(a) to establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and

(b) to enable the Tribunal:

(i) to make decisions as the primary decision-maker in relation to certain matters, and

(ii) to review decisions made by certain persons and bodies, and

(iii) to determine appeals against decisions made by certain persons and bodies, and

(iv) to exercise such other functions as are conferred or imposed on it, and

(c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and

(d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

(e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and

(f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and

(g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.’

These are high ideals indeed.

NCAT took over the jurisdiction and work of 22 existing state tribunals, including the Administrative Decisions Tribunal of NSW (ADT) – which was itself an amalgamation of a number of different state tribunals (including the Equal Opportunity Tribunal, the Legal Services Tribunal and the Community Services Appeals Tribunal).The new tribunal also incorporates tribunals such as the Consumer, Trader and Tenancy Tribunal, the Medical Tribunal and the Local Government Pecuniary Interest and Disciplinary Tribunal.

The NCAT Act is complex and must be read together with many equally complex schedules. Dozens of other acts, (called enabling acts), also give or augment the NCAT’s power, functions and procedures.^[1]

For health practitioners in NSW, the Health Practitioner Regulation National Law 2009 (NSW) (the National Law) is also of critical importance; it is one of the enabling acts giving additional power and jurisdiction to the new tribunal.

The NCAT’s complexity was inevitable, since it combines the classic external independent administrative review tribunals, such as the Commonwealth’s Administrative Appeals Tribunal with the jurisdiction of state courts or quasi-judicial tribunals, such as the Consumer, Trader and Tenancy Tribunal.

While the NSW Parliament’s intention was to attempt to maintain, as far as possible, each former tribunal’s practice, procedure and diversity, the new president of NCAT is responsible for about 270 tribunal members, originating from about 29 former tribunals.

MEMBERSHIP OF THE TRIBUNAL

The president must be a judge of the Supreme Court of NSW (as per s13), and the deputy presidents, principal members, and senior members must be Australian lawyers of at least seven years’ experience or with special knowledge, skill or expertise in the relevant tribunal matters or, in the case of the deputy presidents, be a former judicial officer. General members are lay members with the necessary skills or who represent relevant public or community groups involved with the work of the tribunal.

DIVISIONS AND STRUCTURE OF THE TRIBUNAL

The tribunal has jurisdiction^[2] over general matters,^[3] administrative review,^[4] external and internal appeals^[5] and enforcement.^[6] It consists of four divisions: the Administrative and Equal Opportunity Division, Consumer and Commercial Division, Occupational Division and Guardianship Division.^[7]

The president has extensive power to issue ‘procedural directions’^[8] and, to date, four NCAT-wide procedural directions have been issued.^[9] The president has issued a Guideline on Internal Appeals,^[10] and Divisional Procedural Directions have also been released.^[11] Members, parties to proceedings, and their representatives ‘must’ comply with any applicable procedural directions.^[12]

THE TRIBUNAL AND THE SUPREME COURT

On an application for judicial review of an ‘administratively reviewable decision’, the Supreme Court may refuse to hear the matter if it is satisfied that adequate provision has been made for an internal review of the decision (by an administrator), or where an administrative review of the decision by the tribunal is available under the Administrative Decisions Review Act 1997.^[13] The Court can refuse to hear such an application if an appeal is available under the NCAT legislation.^[14]

There is only one type of administratively reviewable decision that impacts on health professionals: decisions under s41AA or 41A of the Health Care Complaints Act 1993 (NSW) that the (former) health practitioner has breached a code of conduct for unregistered health practitioners; an interim prohibition order or a prohibition order; or a decision to issue, revoke or revise a public statement about the health practitioner.

Otherwise, the merits review jurisdiction of the NCAT, the ADR Act and the Administrative and Equal Opportunity Division play no part in the regulation and discipline of health practitioners in NSW.

PRACTICE AND PROCEDURE

The practice and procedure of NCAT is to facilitate the resolution of the issues so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.^[15]

Mediation and other forms of alternative dispute resolution (ADR) processes are provided for in s37. The tribunal may, where it considers it appropriate, use (or require parties to proceedings to use) any one or more of resolution processes.

The tribunal is not generally bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.^[16]

COMMENCING PROCEEDINGS IN NCAT

An application may be made to the tribunal for a decision via a complaint, referral or other mechanism as provided for in the enabling legislation.^[17] An application or an appeal is to be made in the time and manner prescribed by the enabling legislation or the NCAT’s published procedural rules.^[18] But the tribunal is empowered to extend time, even if the time has expired and in spite of what the enabling legislation might provide.^[19]

PARTICIPATION IN PROCEEDINGS

The tribunal’s power to order that a person be joined as a party to proceedings^[20] is a very wide joinder test, especially considering the former ADT Act.^[21]

A right to intervene in proceedings and to ‘be heard’ exists for the Attorney-General; the Minister who administers the relevant legislation; and any other person who is so authorised.^[22] A Minister whose intervention in proceedings incurs costs to a party will be liable to pay them.^[23]

LEGAL REPRESENTATION

The general rule is that legal representation of parties is not permitted in NCAT except by leave.^[24] Legal representation is permitted without leave in an internal appeal to the appeal panel if the party had a right to representation below.^[25] Exceptions exist to this rule in the division schedules for particular matters (including for health professionals in the Occupational Division). So, health professionals may be legally represented without leave.

The tribunal may call any witness of its own motion, and examine them on oath, or affirmation, or require evidence to be verified by a statutory declaration, and compel any witness to answer questions that it considers to be relevant in any proceedings.^[26] It can issue a summons (or direct a registrar to issue a summons).^[27] Witness allowances and expenses can be paid if the regulations permit it.^[28]

CONDUCT OF PROCEEDINGS

A tribunal hearing is to be open to the public unless the tribunal orders otherwise.^[29] It may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if satisfied of the confidential nature of the evidence, or subject matter, or for any other reason.

The tribunal may dispense with a hearing if written submissions or any other documents permit it to adequately determine the matter in the absence of the parties.^[30] This is a change from the former ADT Act, where consent of the parties was necessary.

Under s54, if the president consents, the tribunal (including when constituted as an appeal panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court.^[31]

As to the costs of proceedings in the tribunal, the primary position is that each party to proceedings in the tribunal is to pay its own costs.^[32] Costs may be awarded but only if the tribunal is ‘satisfied’ that there are ‘special circumstances’ warranting such an order.^[33] The Division Schedules provide exceptions to the general position on costs.

REASONS FOR THE DECISION

The tribunal and the appeal panel must give notice of any decision made on the proceedings.^[34] If no reasons are provided, any party may, within 28 days of being given notice of a decision, request the tribunal to provide a written statement of reasons for its decision, which must be provided within 28 days after the request is made.^[35]

The tribunal has the power to correct obvious errors on the face of decisions.^[36]

INFORMATION DISCLOSURE

The tribunal may (on its own motion, or on application), restrict disclosures in proceedings if it is satisfied that it is desirable to do so because of the confidential nature of any evidence, or subject matter, or for any other reason. The tribunal can restrict publication or prohibit publication or broadcast of a witness or evidence.^[37] Certain proceedings may not be published at all (for example, proceedings in the Guardianship Division, including appeals).^[38]

APPEALS

An ‘internal’ appeal may be made to an appeal panel of the tribunal by a party to a tribunal decision from an ‘internally appealable decision’.^[39] Interlocutory decisions may be appealed with leave. Other appeals are heard ‘as of right’ on any question of law, or with the leave of the appeal panel, on any other grounds.^[40] There are few, if any, internal appeals available in the regulation of health professionals. However, by contrast, there are many provisions for external appeal.

An ‘external’ appeal may be made to the tribunal by a person entitled to do so under enabling legislation on any basis or grounds provided for in that legislation.^[41] In health practitioner cases, a normal layer of tribunal review (namely, an ordinary tribunal hearing) is usually skipped so the first time that the tribunal hears the matter on appeal is as an external appeal. The intention is to by-pass an ordinary tribunal hearing – and permit one to go straight to the Supreme Court from a single layer tribunal hearing.

APPEALS TO COURTS

Subject to what is provided for in the division schedules or an enabling act, the NCAT Act provides for limited appeals with leave to the Supreme Court (if the tribunal was constituted by one or more senior judicial officers). Similar appeals may be permitted to the District Court in civil penalty matters (but only if the tribunal or appeal panel was not constituted, by or with, any senior judicial officers).^[42] The tribunal or its members cannot be made a party to an appeal.^[43]

A party may appeal:

1. any decision made by an appeal panel in an internal appeal;

2. any decision made by the tribunal in an external appeal; and

3. any decision made by the tribunal in proceedings in which a civil penalty has been imposed by the tribunal in exercise of its enforcement or general jurisdiction (s82(1).

A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the tribunal in the proceedings.^[44] A civil penalty matter may be appealed to an appropriate appeal court for the appeal (without leave) on a question of law.^[45]

There is no automatic stay of the operation of a decision of the appeal panel; it must be obtained at NCAT or from the appellate court.^[46]

These limited appeal provisions to the Supreme Court are new. There was a right of appeal to the Supreme Court in the ADT Act^[47] as of right ‘on a question of law’ (but with leave on interlocutory and consent and costs decisions). Now, leave to appeal is required in all cases from NCAT’s appeal panel and external appeals.

Judicial review (as of right) is unaffected by these provisions. Section 69 of the Supreme Court Act 1970 (NSW) and Part 59 of the Uniform Civil Procedure Rules 2005 would apply to such matters.

THE DIVISION SCHEDULES

The particular work and jurisdiction of the divisions is set out in the schedules to the NCAT Act. The majority of actions dealing with health practitioners would be dealt with under Schedule 5.

SCHEDULE 5 – OCCUPATIONAL DIVISION

This division deals with legal practitioners; health practitioners; architects; local government pecuniary interests and discipline; taxi licences; veterinarians; surveyors and building professionals.

‘Health practitioners’ are defined in the NCAT Act^[48] to have the same meaning as in the National Law, and includes a student within the meaning of that law. Section 3 of the National Law defines them as ‘an individual who practises a ‘health profession’ and provides a detailed list of practitioners covered by the term.

In all matters in this division, legal representation is permitted without leave of the tribunal.^[49] But the rules of evidence do not apply (except in relation to legal practitioners).

The tribunal must be constituted with members according to the National Law.^[50] If a complaint is referred to the tribunal or there is an application or appeal to it under the National Law, the tribunal must first inform the relevant professional council (for example, the Medical Council of NSW) and that council must select three persons (whether they are division members or not) to sit as members of the tribunal in the proceedings. In ordinary cases, the tribunal is to be constituted by one division member, a lawyer of seven years’ standing or, if the matter involves a doctor, one division member who is a senior judicial officer, two health practitioners and one lay person.

In matters involving appeals restricted to points of law, the tribunal is to be constituted by a division member who is a senior judicial officer (if the matter involves a doctor) or a lawyer of seven years’ standing.

There is a complicated provision for appeals from the tribunal in the occupational division relating to health professionals. Most appeals from the tribunal, including the legal profession and health practitioners, appear to go on appeal to the Supreme Court (bypassing the NCAT’s appeal panel).^[51]

In all cases, the Supreme Court’s judicial review or administrative law (judicial review) jurisdiction is untouched and therefore unaffected by the new tribunal regime as it relates to health practitioners.^[52]

THE DISCIPLINE AND REGULATION OF HEALTH PRACTITIONERS

Before looking further at the NSW system, one should consider the long-established and very active Commonwealth disciplinary system (Professional Services Review) that applies to all specialist practitioners in Australia equally, as well as to GPs, in respect of ‘inappropriate practice’. ^[53] There are about 24,000 Medicare-registered GPs practising in Australia, who have attracted the bulk of the Commonwealth’s attention in this area to date.

Many state-based (but national) schemes exist to register health professionals and regulate their activities: for example, the former NSW Medical Board, now the Medical Council of NSW, and the Medical Tribunal of NSW, are governed by the National Law.

The federal Australian Health Practitioner Regulation Agency (AHPRA) is now responsible for implementing the National Registration and Accreditation Scheme. This provides for registration and regulation of all health practitioners, covering approximately 580,000 health practitioners across Australia.

In NSW, medical practitioners will be most familiar with the operation of the Health Care Complaints Commission (HCCC), the Medical Council of NSW and the former Medical Tribunal of NSW (now, NCAT). On 1 January 2014, the Medical Tribunal of NSW was subsumed into the new ‘super tribunal’, NCAT.

The NSW Coroner’s Court also deals with doctors and other health practitioners who have killed their patients. Coroners in NSW investigate about 6,000 reportable deaths annually.

HOW ARE COMPLAINTS MADE AND DEALT WITH?

Part 8 of the National Law has detailed provisions for making a complaint about a registered health practitioner.^[54] Any person can make a complaint. It must be made in writing to the relevant professional council, the HCCC or the Director General of the relevant department.

Complaints may then be referred to another body, including to the tribunal. The HCCC may only refer a complaint to the tribunal after consultation with the relevant professional council.^[55] In serious matters, the complaint must be sent to the tribunal.

THE TOOLKIT FOR HEALTH PRACTITIONER NCAT MATTERS

Practitioners appearing before the NCAT in any matter must be aware of the following instruments:

• The NCAT Act, (especially schedule 5);

• Civil and Administrative Regulations 2013 (NSW);

• Civil and Administrative Rules 2014 (NSW);

• Health Practitioner Regulation National Law 2009 (NSW)

• Health Care Complaints Act 1993 (NSW);

• NCAT’s Procedural Direction 3 – Health Professionals Registration Appeals;

• The practice and operation of the ‘Health practitioner list’ or the ‘Health list’ (see below);

• Relevant decisions of the NCAT;

• Relevant decisions of the former Medical Tribunal; and

• Relevant decisions of the former ADT.

The tribunal established a Health Practitioner Division List within the Occupational Division – styled informally as the Health List.^[56] The List Manager is granted enormous powers to manage and list a matter under the NCAT Act and the National Law.

All proceedings under the National Law are entered into and managed in that List.^[57] The tribunal, when exercising its division functions for the purposes of the National Law, is under a duty to observe the objectives and principles referred to in ss3 and 3A of the National Law;^[58] namely, to maintain a national registration and accreditation scheme to regulate health practitioners and to operate the scheme in a ‘transparent, accountable, efficient, effective and fair way’.^[59]

The objective of the NCAT Act and the guiding principle to be used in the exercise of functions under the National Law is stated to be the protection of the health and safety of the public. It is ‘the’ paramount consideration in any tribunal exercise.^[60]

NCAT’S JURISDICTION IN HEALTH PROFESSION MATTERS

A health profession matter can work its way into the NCAT via a number of different ways.

Appealing decisions of the Assessment Committees or a Professional Standards Committee^[61]

The Assessment Committees consist of three registered health practitioners and one person nominated by the Minister and are governed by ss172 to 172C of the National Law. The Professional Standards Committees, governed by ss169 to 171F of the National Law and established when a complaint is referred by a relevant professional council about a health practitioner, consist of two registered health practitioners in the same field as the person who is the subject of the complaint, one Australian lawyer and one other person nominated by the Minister. If the committee becomes aware of a matter that, if it were substantiated, may provide the grounds for suspension or deregistration of the practitioner, it must refer the complaint to the tribunal for determination.^[62]

Reviews

Part 8 of the National Law provides for ‘reviews’ to a number of entities listed in s163(1), including the tribunal. In a (slightly convoluted) process of identifying the appropriate review body, a person may apply to the tribunal for a review of an order that the person’s registration be suspended, cancelled or disqualified, or that conditions be imposed on that person’s registration.

The review is as of right,^[63] but cannot be made if the terms of the order provide that it cannot be made (!) or while an appeal is pending in the tribunal or the Supreme Court in respect of the same matter.

Such review is available for decisions by an Assessment Committee, a Professional Standards Committee, a Performance Review Panel, the Medical Council (or its equivalent), the tribunal, the tribunal list manager and the Supreme Court. This list is not exhaustive.

The nature of the review is set out in s163B of the National Law and the tribunal or the appropriate review body ‘must conduct an enquiry into’ the review and it can, inter alia, dismiss the application, make a reinstatement order, shorten the period of suspension or make an order removing or adjusting the conditions imposed.

Appeals from registration decisions

Sections 175 to 175C of the National Law provide for ‘appeals’ for persons who are the subject of decisions by the National Board (such as the Medical Board of Australia) to refuse to register a practitioner, endorse their registration or renew their registration. It also applies to imposing or changing conditions on a registration or to refuse to change or revoke an undertaking given by the health practitioner to the National Board.

Such decisions are defined in s175(1) of the National Law as ‘appealable decisions’ and the appeal is to ‘the responsible tribunal for the participating jurisdiction’.

Such appeals are made direct to the appeal panel of NCAT and they are styled as ‘external appeals’.

Parties to the proceedings are the medical professional and the National Board.

There is a special provision here as to costs (s175B of the National Law), which provides that the tribunal may make any order about costs it considers appropriate for the proceedings. This provision overrides anything in the NCAT Act.

The tribunal is empowered to hear the matter and confirm, amend or substitute another decision for the appealable decision (s175C).

Appealing decisions or actions of the Performance Review Panel

Such appeals are provided for in ss160 and 160A of the National Law. Performance Review Panels are formed from time to time under ss156 to 156F and they conduct reviews of the professional performance of a registered health practitioner (usually following complaints made about a particular health practice). A ‘performance assessment’ may be carried out by a relevant professional council under s155 by an assessor, who goes into the practitioner’s private practice and interviews people and inspects records. The panel is then convened.

The actions available to the panel are listed in s156C of the National Law and they include imposing conditions; requiring an educational course to be undertaken; a report from the practitioner; for the practitioner to take advice; or the referral of a complaint to the relevant professional council. Reasons for any such decision must be given (s156E).

There are two kinds of appeals from panel decisions. Firstly, under s160, there is an appeal to the tribunal which is expressed as an appeal ‘by way of rehearing’ and fresh evidence or additional evidence may be adduced (s160(2)). The tribunal is empowered to dismiss the appeal or to make any finding that the panel could have made.

Alternatively, s160A provides for an appeal to the tribunal ‘with respect to a point of law’. Such an appeal will be heard by the appeal panel tribunal as an ‘external appeal’. An appeal on a point of law may be taken during a performance review or even before the performance review commences. If an appeal is made, an automatic stay of the performance review is to take effect (s160(3)) and the panel is bound by any determination made by the appeal panel of the NCAT.

Administrative review

An unregistered health practitioner may apply to the tribunal for an ‘administrative review’ under the Administrative Decisions Review Act 1997 (NSW) of decisions under s41AA or 41A of the Health Care Complaints Act 1993 (NSW) that the health practitioner has breached a code of conduct for unregistered health practitioners, or an interim prohibition order, or a prohibition order, or a decision to issue, revoke or revise a public statement about the health practitioner.

Codes of conduct for unregistered health practitioners are covered by regulations made under s100 of the Public Health Act 2010 (NSW).

Review applications are to be made within 28 days after the day on which the health practitioner is provided with the statement of the decision (s41C(2), HCCA Act).

It appears likely that such matters will be heard in the Administrative and Equal Opportunity Division of the tribunal instead of the Occupational Division (schedule 5 of the NCAT Act, clause 10).

Such review matters will be heard as a de novo merits review matters in the tribunal proper.

Traditional disciplinary jurisdiction

Finally, the tribunal has a traditional disciplinary jurisdiction in relation to health practitioners. The first kind of disciplinary power is a ‘referral of a recommendation’ to the tribunal (under s146D of the National Law) that a health practitioner’s registration be suspended or cancelled if the committee is satisfied that the practitioner does not have sufficient physical and mental capacity to practise his or her profession. Also, if he or she is no longer registered, the committee may recommend that they are disqualified from being registered.

The tribunal may (s146D(4)) make an order in the terms recommended or another order about the suspension or cancellation ‘as the tribunal thinks proper based on the findings of the committee’. This is an unusual provision and, in the absence of any provision obviously stating the nature of the tribunal’s review jurisdiction, suggests that the tribunal is not undertaking a de novo review jurisdiction here, but is examining the correctness of the findings of the committee.

The committee may also refer contraventions of conditions that it has imposed to the tribunal (s146E).

Appeals to the tribunal from committee decisions are provided for in s158 and 158A. These are ‘external appeals’ direct to the tribunal’s appeal panel.

The primary way to get a disciplinary matter into the tribunal is by way of ss145B, C and D of the National Law. In short, if a complaint is made against a practitioner, before any action is taken, the relevant professional council and the HCCC must confer to see if any agreement can be reached between them as to the cause of action (s145A of the National Law).

Among the number of actions available, the relevant professional council may refer the complaint to the tribunal (s145B). Similarly, the courses of action open to the HCCC include referring a complaint to the tribunal (s145C).

In all cases, serious complaints must be referred to the tribunal in NSW. The relevant professional council and the HCCC are under a duty to refer complaints if they form the opinion that, if substantiated, they provide grounds for suspending or cancelling a practitioner or student’s registration (but not if the complaint relates to the physical or mental capacity of the practitioner to work in his or her profession) (s145D).

A relevant professional council may also refer to the tribunal the failure to comply with an order or conditions: s149D.

Once seized of this jurisdiction, the tribunal is possessed of extensive ‘disciplinary powers’, set out in ss149 to 149D.

The tribunal may exercise these disciplinary powers if it finds the subject matter of a complaint against the practitioner to have been proved or the health practitioner admits it in writing (s149). These disciplinary powers include, among other things, the ability to caution or reprimand, impose appropriate conditions on registration or require the undertaking of educational courses. In certain circumstances, the tribunal can also impose a fine of not more than 250 penalty units (x $110 = $27,500 fine: s149B.

If the tribunal finds that the practitioner is guilty of ‘professional misconduct’ (defined in s139E), or that he or she is not competent to practise medicine, the tribunal may suspend or cancel the practitioner’s registration and a prohibition order may be made as well prohibiting them from providing health services in the future.

A number of cases were handed down last year by the tribunal dealing with health practitioners and medical practitioners, largely concerning the kinds of matters that were the stock in trade of the Medical Tribunal when it operated. For example: Health Care Complaints Commission v Naiyer (No. 1) [2014] NSWCATOD 54 and Health Care Complaints Commission v Naiyer (No. 2) [2014] NSWCATOD 58, a case about a GP who persistently engaged in inappropriate conduct with his patients who were young single women. His registration was cancelled for at least 18 months.

Cases have been heard regarding GPs who inappropriately prescribed benzodiazepines and other drugs of dependence, such as Health Care Complaints Commission v Townsend [2014] NSWCATOD 65 and Health Care Complaints Commission v Kwan [2014] NSWCATOD 72.

A case was also heard about a nurse who routinely and illegally administered botox to women in a day spa (she was suspended for three months): HCCC v Piper [2014] NSWCATOD 62.

APPEALS TO THE SUPREME COURT

Clause 29 of schedule 5 to the NCAT Act provides for appeals of certain ‘profession decisions’ directly to the Supreme Court.

Clause 29(1) provides that decisions made under the National Law (except certain decisions in relation to pharmacies) are not internally appealable decisions. Instead, a party to such a professional decision may appeal directly to the Supreme Court (Clause 29(2)). An appeal may be made as of right on any question of law, or with the leave of the court, on any other ground (Clause 29(4)).

In appeals from decisions of the tribunal under the National Law, the Supreme Court may decide to deal with the appeal by way of a new hearing if it considers that the grounds for appeal so warrant (Clause 29(7)(a)). In such a hearing, the Supreme Court may permit such fresh evidence as it considers appropriate in the circumstances. It is open to the Supreme Court to make such orders as it considers appropriate in light of its decision on appeal (Clause 29(8)).

CONCLUSION

These are all significant changes. The new tribunal creates a whole new landscape for administrative review and quasi-judicial civil matters in NSW. The potential benefits are enormous: to the parties, to the legal profession and to the tribunal members themselves. In time, the tribunal will develop a learned culture based on shared experience, skill and expertise. The ADT developed in this fashion over many years and soon operated as an identifiable single entity, rather than as a collection of members hearing diverse matters in different places. Whatever ‘club’ culture existed in NSW within the many varied tribunals and boards should now disappear and the benefits of amalgamation will become manifest.

Whether the new tribunal heralds ‘a new era of accessible justice’ in NSW, as claimed by the former NSW Attorney-General in his second reading speech, remains to be seen.^[64]

If the tribunal is given sufficient resources, support and encouragement from government, the parties and the legal profession, it is set to become Australia’s pre-eminent super tribunal over the next few years.

Mark Robinson SC practises from Maurice Byers Chambers, Sydney. PHONE [phone] EMAIL

[e-mail].

---

^[1] The NCAT Act is fully operative and the consolidated version is published by Parliamentary Counsel at www.legislation.nsw.gov.au.

^[2] Part 3 of the NCAT Act (s28).

^[3] Section 29(1).

^[4] The ADR Act and schedule 3.

^[5] Sections 31, 32 and Part 6 of the NCAT Act, ss79-81.

^[6] Section 33 and Part 5 of the Act, ss71 to 78.

^[7] Section 16(1).

^[8] Section 26.

^[9] http://www.ncat.nsw.gov.au/agdbasev7wr/_assets/ncat/m771022l21/service_and_giving_notice.pdf.

http://www.ncat.nsw.gov.au/agdbasev7wr/_assets/ncat/m771022l21/summonses.pdf.

http://www.ncat.nsw.gov.au/agdbasev7wr/_assets/ncat/m771022l21/expert_witnesses.pdf.

http://www.ncat.nsw.gov.au/agdbasev7wr/_assets/ncat/m771022l21/registrars_powers_directions.pdf.

^[10] http://www.ncat.nsw.gov.au/agdbasev7wr/_assets/ncat/m771022l29/ncat_guideline_internal_appeals.pdf.

^[11] http://www.cc.ncat.nsw.gov.au/cc/Resources/Procedural_directions_and_guidelines.page?

http://www.ncat.nsw.gov.au/agdbasev7wr/_assets/ncat/m771022l8/procedural%20direction%20costs.pdf.

http://www.ncat.nsw.gov.au/agdbasev7wr/_assets/ncat/m771022l8/procedural%20direction%20representation.pdf.

^[12] Section 26(4).

^[13] Section 34 of the NCAT Act.

^[14] See former 123 of the old ADT Act.

^[15] Section 36(4).

^[16] Section 38(2).

^[17] Section 30.

^[18] Section 40.

^[19] Section 41.

^[20] Section 44(1).

^[21] See the limited test in s67(1) of the former ADT Act (parties to proceedings before tribunal).

^[22] By the NCAT Act, enabling legislation or the procedural rules to intervene in the proceedings (s44(4)).

^[23] As per s44(5).

^[24] Section 45(1).

^[25] Section 45(2).

^[26] Section 46(1).

^[27] Section 46(2) and 48.

^[28] Section 47.

^[29] Pursuant to s49.

^[30] Section 50(2) and (3).

^[31] See s789A of the former ADT Act.

^[32] Section 60.

^[33] See s88 of the former ADT Act, where the test started off as special circumstances, but was later amended to a test of fairness.

^[34] Section 62(1).

^[35] Section 62(2).

^[36] Section 63.

^[37] Section 64.

^[38] Section 65.

^[39] Section 80.

^[40] Section 80(2).

^[41] Section 79.

^[42] Section 83(1) & (2).

^[43] Section 84(3).

^[44] Section 83(1).

^[45] Section 83(2).

^[46] Section 83(5).

^[47] Section 119 of the ADT Act.

^[48] Schedule 5, Division 3, clause 8.

^[49] Schedule 5, clause 27 – cf s45.

^[50] By clause 13 of Schedule 5 of the NCAT Act. Those provisions are principally in s165B (read with clauses 12 and 13 of the NCAT Act).

^[51] Schedule 5, clause 29.

^[52] Section 69 of the Supreme Court Act 1970 (NSW).

^[53] See s82 and Pt V AA of the Health Insurance Act 1973 (Cth).

^[54] Sections 144 to 144G of the National Law.

^[55] Section 145C(1)(a).

^[56] Pursuant to clause 8 of schedule 5 of the NCAT Act.

^[57] Ibid, Clause 10(2).

^[58] Ibid, Clause 9(1).

^[59] Section 3(3)(a).

^[60] Section 3A.

^[61] An appeal under Part 8 of the National Law, s158.

^[62] Section 171D.

^[63] Section 163A.

^[64] 30 October 2013 LA, Hansard, p64.