Kirby v Health Care Complaints Commission [2021] NSWCATAP 157

Kirby v Health Care Complaints Commission [2021] NSWCATAP 157

Leave to appeal was refused because no substantial injustice or error of principle was demonstrated in the Tribunal's refusal of a stay; the alleged errors either did not arise, were not productive of injustice, or were within the scope of the Tribunal’s evaluative discretion. Even if s 60 of the Administrative Decisions Review Act 1997 (NSW) could permit a stay, the publication of prohibition orders under s 41E of the Health Care Complaints Act 1993 (NSW) is mandatory and not subject to Tribunal direction.

Jurisdiction
Australia
Judgment Date
31 May 2021
Procedural Posture
Appeal / Leave to Appeal From Interlocutory Decision – Determination on Extension of Time, Leave, and Merits
Outcome
Leave to appeal refused; appeal dismissed; extension of time for appeal granted
Legal Topics
['appeals' 'interlocutory Applications' 'prohibition Orders' 'stays of Decisions' 'administrative Review']
['administrative Law' 'health Law' 'tribunal Procedure'] ['appeals' 'interlocutory Applications' 'prohibition Orders' 'stays of Decisions' 'administrative Review']

Case Brief

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Procedural Posture

Appeal / Leave to Appeal From Interlocutory Decision – Determination on Extension of Time, Leave, and Merits

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from refusal of a stay of publication of a prohibition order' 'Whether the Tribunal has the power to stay publication of a prohibition order under s 41E of the Health Care Complaints Act 1993 (NSW)']

Ratio Decidendi

Leave to appeal was refused because no substantial injustice or error of principle was demonstrated in the Tribunal's refusal of a stay; the alleged errors either did not arise, were not productive of injustice, or were within the scope of the Tribunal’s evaluative discretion. Even if s 60 of the Administrative Decisions Review Act 1997 (NSW) could permit a stay, the publication of prohibition orders under s 41E of the Health Care Complaints Act 1993 (NSW) is mandatory and not subject to Tribunal direction.

Court Disposition

Leave to appeal refused; appeal dismissed; extension of time for appeal granted

Orders

  • ['The time for lodging the Notice of Appeal is extended to 19 January 2021.' 'Leave to appeal is refused.' 'The appeal is dismissed.']