Wang Kin John Cheng v Pharmacy Board of New South Wales & Anor [2005] NSWSC 1130

Wang Kin John Cheng v Pharmacy Board of New South Wales & Anor [2005] NSWSC 1130

The plaintiff failed to prove exceptional circumstances warranting a permanent stay because he claimed no actual prejudice and the evidence did not show that continuation of the disciplinary proceedings would involve injustice, unfairness or oppression. The directory obligation in s 29(2) to investigate expeditiously did not make mere delay, or failure to act with expedition, sufficient to invalidate or stay the proceedings.

Jurisdiction
Australia
Judgment Date
09 November 2005
Procedural Posture
Application for Permanent Stay of Disciplinary Proceedings Under the Pharmacy Act 1964 / Amended Summons in the Supreme Court's Supervisory Jurisdiction After the Pharmacy Board Refused the Plaintiff's Stay Application
Outcome
Application dismissed
Legal Topics
['permanent Stay' 'delay' 'abuse of Process' 'professional Misconduct' 'health Care Complaints Commission Investigation' 'statutory Requirement to Investigate Expeditiously' 'supervisory Jurisdiction']
['administrative Law' 'health Practitioner Disciplinary Law' 'pharmacy Regulation'] ['permanent Stay' 'delay' 'abuse of Process' 'professional Misconduct' 'health Care Complaints Commission Investigation' 'statutory Requirement to Investigate Expeditiously' 'supervisory Jurisdiction']

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Procedural Posture

Application for Permanent Stay of Disciplinary Proceedings Under the Pharmacy Act 1964 / Amended Summons in the Supreme Court's Supervisory Jurisdiction After the Pharmacy Board Refused the Plaintiff's Stay Application

Legal Issues

  1. 1 ['Whether disciplinary proceedings before the Pharmacy Board should be permanently stayed because of delay in assessing and investigating the complaint' 'Whether absence of actual prejudice prevents a permanent stay where delay is alleged to be unreasonable or unexplained' 'Whether failure to comply with s 29(2) of the Health Care Complaints Act 1993 is sufficient to justify a stay']

Ratio Decidendi

The plaintiff failed to prove exceptional circumstances warranting a permanent stay because he claimed no actual prejudice and the evidence did not show that continuation of the disciplinary proceedings would involve injustice, unfairness or oppression. The directory obligation in s 29(2) to investigate expeditiously did not make mere delay, or failure to act with expedition, sufficient to invalidate or stay the proceedings.

Court Disposition

Application dismissed

Orders

  • ['The amended summons is dismissed.' "The plaintiff is to pay the defendants' costs."]