Ghosh v Medical Council of New South Wales [2020] NSWCA 122

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Hearing dates: 6, 7 November 2019 (written submissions closed 12 December 2019) Date of orders: 26 June 2020 Decision date: 26 June 2020 Before: Brereton JA at [1] Emmett AJA at [121] Simpson AJA at [136] Decision: (1) Leave to appeal, insofar as it be required, be granted; (2) The appeal be allowed; (3) The decision of NCAT dismissing the appeal to it, confirming the decisions of the Medical Council, and ordering that Dr Ghosh pay the Council's costs, be set aside; (4) The matter be remitted to NCAT to be heard again, by a differently constituted panel; (5) Insofar as any extant costs order does not otherwise provide, the respondent pay 75% of the appellant's costs. Catchwords: ADMINISTRATIVE LAW — Particular administrative bodies — NSW Civil and Administrative Tribunal – Appeal under (NSW) Health Practitioner Regulation National Law s 159 against decision of Council for a health profession under s 150 and 150A – Hearing de novo – The essential task of the Tribunal in such an appeal ADMINISTRATIVE LAW — Hearing rule — Rules of evidence — Examination and cross-examination – Second aspect of the rule in Browne v Dunn (1894) 6 R 67 – Whether Tribunal erred in failing to have regard to the circumstance that evidence not accepted by Tribunal went unchallenged by cross-examination ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Findings of fact – Where obvious and innocent explanation not considered in circumstances where findings were grave, devastating and infected the whole decision – Error established ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Decision not authorised — Statutory construction – Hearing and review of decision under (NSW) Health Practitioner Regulation National Law, ss 150, 150A – Whether Council precluded from varying its earlier s 150 decision under s 150A where there is no finding of a change in circumstances by s 150A(4) – Where s 150C(2) authorises the variation of a decision without such limitation Legislation Cited: (Cth) Acts Interpretation Act 1901, s 15AA (NSW) Civil and Administrative Tribunal Act 2013, Sch 5, cl 29(2), cl 29(4)(b), cl 29(7), cl 29(8) (NSW) Health Practitioner Regulation National Law, Pt 7, s 5, s 73, s 75, s 83, s 149C(4)(a), s 150, s 150A, s 150C, s 150D, s 150F, s 150H, s 150I, s 159, s 159B, s 159C, s 176D(1) (NSW) Interpretation Act 1987, s 33 (NSW) Supreme Court Act 1970, s 48(1)(a)(iv), (vii), (b)(ii), (2)(f) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Browne v Dunn (1894) 6 R 67 Bulstrode v Trimble [1970] VR 840 Crickitt v Medical Council of New South Wales (No 2) [2015] NSWCATOD 115 Ghosh v Medical Council of NSW [2018] NSWCATOD 186 Ghosh v Medical Council of NSW [2019] NSWCA 264 GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 Hanna v Medical Council of NSW [2017] NSWCATOD 27 Health Care Complaints Commission v Ghosh [2020] NSWCATOD 38 Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 Kirby v Dental Council of New South Wales [2018] NSWSC 1869 Kirby v Dental Council of New South Wales [2020] NSWCA 99 Medical Council of New South Wales v Lee [2017] NSWCA 282 Narrier v Western Australia [2016] FCA 1519 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Category: Principal judgment Parties: Ratna Ghosh (appellant) Medical Council of New South Wales (respondent) Representation: Counsel: FM Douglas QC w GR Rubagotti (appellant) O Jones (respondent)