Health Care Complaints Commission v CSM [2018] NSWSC 902

Health Care Complaints Commission v CSM [2018] NSWSC 902

The appeal succeeded in part because the Tribunal denied the HCCC procedural fairness. Having stated during the hearing that it was content with the agreed proposed protective orders, and with no debate about those orders because CSM had consented to them, the Tribunal declined to make some of the proposed orders without giving the HCCC an opportunity to address whether s 149C(4) orders should be made as a package or whether the evidence justified the additional orders. That failure to follow due process caused practical injustice. However, s 149C(4) did not require all protective orders to be made automatically as a mandatory package, and the Tribunal's non-publication order involved no...

Jurisdiction
Australia
Judgment Date
18 June 2018
Procedural Posture
Appeal From a Profession Decision of the Civil and Administrative Tribunal of New South Wales, Occupational Division / Supreme Court Appeal; Appeal Allowed in Part and Matter Remitted to the Tribunal
Outcome
Appeal allowed in part; order 1 made by the Tribunal on 5 October 2016 set aside; leave to appeal refused and appeal dismissed in relation to the Tribunal's non-publication order; matter remitted to the Civil and Administrative Tribunal for further hearing on protective orders.
Legal Topics
['judicial Review' 'appeal on Question of Law' 'procedural Fairness' 'protective Orders' 'non Publication Orders' 'statutory Interpretation' 'professional Misconduct']
['administrative Law' 'health Practitioner Regulation' 'professional Discipline'] ['judicial Review' 'appeal on Question of Law' 'procedural Fairness' 'protective Orders' 'non Publication Orders' 'statutory Interpretation' 'professional Misconduct']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From a Profession Decision of the Civil and Administrative Tribunal of New South Wales, Occupational Division / Supreme Court Appeal; Appeal Allowed in Part and Matter Remitted to the Tribunal

Legal Issues

  1. 1 ['Whether the Tribunal denied the Health Care Complaints Commission procedural fairness by indicating it was content with agreed proposed protective orders but then making only one protective order without further argument.' 'Whether s 149C(4)(a)-(c) of the Health Practitioner Regulation National Law (NSW) required the Tribunal to make cancellation, disqualification and recording orders as a mandatory package.' "Whether the Tribunal erred in making a non-publication order over CSM's name." 'Whether the matter should be remitted to the Tribunal or protective orders substituted by the Court.']

Ratio Decidendi

The appeal succeeded in part because the Tribunal denied the HCCC procedural fairness. Having stated during the hearing that it was content with the agreed proposed protective orders, and with no debate about those orders because CSM had consented to them, the Tribunal declined to make some of the proposed orders without giving the HCCC an opportunity to address whether s 149C(4) orders should be made as a package or whether the evidence justified the additional orders. That failure to follow due process caused practical injustice. However, s 149C(4) did not require all protective orders to be made automatically as a mandatory package, and the Tribunal's non-publication order involved no...

Court Disposition

Appeal allowed in part; order 1 made by the Tribunal on 5 October 2016 set aside; leave to appeal refused and appeal dismissed in relation to the Tribunal's non-publication order; matter remitted to the Civil and Administrative Tribunal for further hearing on protective orders.

Orders

  • ['Allow the appeal in part.' 'Set aside order 1 made by the Tribunal on 5 October 2016.' 'Otherwise refuse leave to appeal and dismiss the appeal in so far as it challenges the non-publication order made by the Tribunal.' 'Remit the matter to the Civil and Administrative Tribunal for further hearing confined to...