Medical Council of New South Wales v Lee [2017] NSWCA 282

Medical Council of New South Wales v Lee [2017] NSWCA 282

The National Law (NSW) was intended to deal exhaustively with the circumstances in which a Medical Council decision suspending a medical practitioner can be stayed, terminated or varied. Because Part 4 of the NCAT Act is subject to enabling legislation and because s 165L(2) of the National Law specifically provides a stay power only for an appeal under s 159B on a point of law, s 43(3) of the NCAT Act did not empower the Tribunal to stay the suspension decision on an appeal under s 159. Section 161B, read in context and with s 165L(2), did not confer a separate general stay power. The Tribunal therefore lacked power to make the Stay Decision, and the appeal was allowed.

Jurisdiction
Australia
Judgment Date
06 November 2017
Procedural Posture
Application for Leave to Appeal and Appeal From an Interlocutory Decision of the Civil and Administrative Tribunal of New South Wales, Occupational Division / Court of Appeal Determination of Leave to Appeal and Appeal
Outcome
Leave to appeal granted on Ground 1; appeal allowed; Orders 1 and 2 of the Stay Decision set aside; appellant ordered to pay the respondent's costs of the appeal including the application for leave to appeal.
Legal Topics
['suspension of Medical Practitioner Registration' 'stay Pending Appeal' 'ncat Jurisdiction and Powers' 'relationship Between Enabling Legislation and the Civil and Administrative Tribunal Act 2013 (nsw)' 'appeals Under Health Practitioner Regulation National Law (nsw) Ss 159 and 159 B' 'leave to Raise New Point on Appeal']
['administrative Law' 'health Practitioner Regulation' 'professions and Trades' 'civil Procedure' 'statutory Interpretation'] ['suspension of Medical Practitioner Registration' 'stay Pending Appeal' 'ncat Jurisdiction and Powers' 'relationship Between Enabling Legislation and the Civil and Administrative Tribunal Act 2013 (nsw)' 'appeals Under Health Practitioner Regulation National Law (nsw) Ss 159 and 159 B' 'leave to Raise New Point on Appeal']

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Procedural Posture

Application for Leave to Appeal and Appeal From an Interlocutory Decision of the Civil and Administrative Tribunal of New South Wales, Occupational Division / Court of Appeal Determination of Leave to Appeal and Appeal

Legal Issues

  1. 1 ["Whether the Civil and Administrative Tribunal had power under s 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to stay the Medical Council's suspension decision made under s 150 of the Health Practitioner Regulation National Law (NSW)." 'Whether s 161B of the Health Practitioner Regulation National Law (NSW) authorised the Tribunal to stay the suspension decision on an appeal under s 159.' 'Whether leave to appeal should be granted despite the Medical Council not having raised the jurisdictional argument before the Tribunal.' 'Whether leave should be granted on the proposed ground that the Tribunal failed to consider s 3A of the Health Practitioner Regulation National Law (NSW) or the public interest.']

Ratio Decidendi

The National Law (NSW) was intended to deal exhaustively with the circumstances in which a Medical Council decision suspending a medical practitioner can be stayed, terminated or varied. Because Part 4 of the NCAT Act is subject to enabling legislation and because s 165L(2) of the National Law specifically provides a stay power only for an appeal under s 159B on a point of law, s 43(3) of the NCAT Act did not empower the Tribunal to stay the suspension decision on an appeal under s 159. Section 161B, read in context and with s 165L(2), did not confer a separate general stay power. The Tribunal therefore lacked power to make the Stay Decision, and the appeal was allowed.

Court Disposition

Leave to appeal granted on Ground 1; appeal allowed; Orders 1 and 2 of the Stay Decision set aside; appellant ordered to pay the respondent's costs of the appeal including the application for leave to appeal.

Orders

  • ['Grant leave to appeal from the decision of the Civil and Administrative Tribunal given on 4 September 2017 (Stay Decision).' 'Allow the appeal.' 'Set aside Orders 1 and 2 made by the Stay Decision.' "Order that the appellant pay the respondent's costs of the appeal, including the application for leave to appeal."]