Health Care Complaints Commission v Dowla (Jurisdiction Application) [2018] NSWCATOD 96

Health Care Complaints Commission v Dowla (Jurisdiction Application) [2018] NSWCATOD 96

Where the presiding member of the Tribunal becomes unavailable to preside over part-heard proceedings under the Health Practitioner Regulation National Law (NSW), s 165C of the National Law operates as a complete code. Its provisions override s 52 of the Civil and Administrative Tribunal Act 2013 (NSW), and any reconstitution of the Tribunal must proceed under s 165C. As a result, a new inquiry must be conducted by a properly reconstituted Tribunal.

Jurisdiction
Australia
Judgment Date
22 June 2018
Procedural Posture
Jurisdiction Application / Ancillary Decision on Statutory Construction and Tribunal Reconstitution Prior to Disciplinary Orders Hearing
Outcome
Application upheld; Tribunal reconstitution to be conducted in accordance with the National Law.
Legal Topics
['statutory Construction' 'tribunal Constitution and Reconstitution' 'health Practitioner Regulation' 'conflicts Between Statutes']
['health Law' 'administrative Law' 'professional Discipline'] ['statutory Construction' 'tribunal Constitution and Reconstitution' 'health Practitioner Regulation' 'conflicts Between Statutes']

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Procedural Posture

Jurisdiction Application / Ancillary Decision on Statutory Construction and Tribunal Reconstitution Prior to Disciplinary Orders Hearing

Legal Issues

  1. 1 ["What is the meaning of 'vacates office' under s 165C of the National Law?" "Does the National Law exclusively govern Tribunal composition in the event of a presiding member's unavailability?" 'Is there conflict or repugnancy between s 165C of the National Law and s 52 of the NCAT Act regarding reconstitution of the Tribunal?']

Ratio Decidendi

Where the presiding member of the Tribunal becomes unavailable to preside over part-heard proceedings under the Health Practitioner Regulation National Law (NSW), s 165C of the National Law operates as a complete code. Its provisions override s 52 of the Civil and Administrative Tribunal Act 2013 (NSW), and any reconstitution of the Tribunal must proceed under s 165C. As a result, a new inquiry must be conducted by a properly reconstituted Tribunal.

Court Disposition

Application upheld; Tribunal reconstitution to be conducted in accordance with the National Law.

Orders

  • ['The proceedings are listed for directions on 6 July 2018 at 11.30am.' 'The directions hearing listed for 3 August 2018 is vacated.']