Kirby v Health Care t/as Health Care Complaints Commission [2020] NSWSC 1133

Supreme Court New South Wales

Medium Neutral Citation: Kirby v Health Care t/as Health Care Complaints Commission [2020] NSWSC 1133 Hearing dates: 29 October 2019 Date of orders: 26 August 2020 Decision date: 26 August 2020 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that: (1) The further amended summons filed 13 August 2019 is dismissed. (2) Costs are reserved. Catchwords: ADMINISTRATIVE LAW – Judicial review – Health Care Complaints Act 1993 (NSW) – Registered health practitioner – Whether the decision maker was affected by apprehended bias – Whether the Commission failed to consult the relevant professional council under s 39(2) before making a prohibition order under s 41A – Where the complaint against the health practitioner concerned conduct outside the field of his registration – Application dismissed Legislation Cited: Health Care Complaints Act 1993 (NSW), ss 3, 4, 3A, 9, 12, 19, 25B, 39, 40, 41A, 41C, 74, 75, 80, 99A Health Practitioner National Regulation Law (NSW) No. 86a, s 4 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59.10 Cases Cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; [2000] 205 CLR 337 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; [2002] 210 CLR 438 Plaintiff S157/2002 v the Commonwealth (2003) 211 CLR 467 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 Regal Consulting Services Pty Ltd v All Seasons Air Pty Ltd [2017] NSWSC 613 Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FLR 517 Category: Principal judgment Parties: David William Kirby (Plaintiff) Health Care t/as Health Care Complaints Commission (Defendant) Representation: Counsel: J Sheller SC with D Tang (Plaintiff) P Lowson (Defendant)