CIVIL PROCEDURE — application to dismiss judicial review proceedings pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) — whether Court has jurisdiction to review a decision of the Health Care Complaints Commission to discontinue a complaint — whether legally enforceable rights are conferred on the complainant by the Health Care Complaints Act 1993 (NSW)
Quick Take
1A decision by the Health Care Complaints Commission to discontinue a complaint, including on review under s 28(9) of the Health Care Complaints Act 1993 (NSW), is not amenable to judicial review by way of certiorari because the Act does not confer legally enforceable rights on a complainant beyond receiving acknowledgement of the complaint and notification of steps taken, following the analysis in Hastwell v Health Care Complaints Commission [2021] NSWCA 22.
2Factual differences in the nature of the underlying complaint (e.g. clinical care versus a medico-legal report) do not distinguish the jurisdictional analysis where the manner in which the HCCC dealt with the complaint and review is materially the same.
3Where a complainant seeks review under s 28(9) of the Health Care Complaints Act 1993 (NSW), the review decision supersedes the original decision and is the only operative decision amenable to challenge; a challenge to the original decision brought outside the three-month limitation period in UCPR r 59.10 is also out of time.
