Lee v Dental Council of New South Wales [2020] NSWCATOD 111

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lee v Dental Council of New South Wales [2020] NSWCATOD 111 Hearing dates: 18 September 2020 Date of orders: 29 September 2020 Decision date: 29 September 2020 Jurisdiction: Occupational Division Before: A Britton, Principal Member Decision: (1) The Application to stay the operation of the decision made by the Dental Council of NSW on 4 August 2020 to impose conditions on Dr Kenneth Lee's registration is dismissed for want of jurisdiction. Catchwords: STATUTORY CONSTRUCTION ─ whether NCAT has power to stay the operation of a decision made under s 138(1) of the Health Practitioner Regulation National Law (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Medical Council of New South Wales v Lee [2017] NSWCA 282 Texts Cited: None cited Category: Procedural and other rulings Parties: Dr Kenneth Lee (Applicant) Dental Council of NSW (Respondent) Representation: Counsel: V A Hartstein (Respondent)

Solicitors: Esplins Solicitors (Applicant) Dental Council of New South Wales (Respondent) File Number(s): 2020/00255708

REASONS FOR DECISION 1. Dr Kenneth Lee appeals to the NSW Civil and Administrative Tribunal (NCAT) from a decision made by the Dental Council of NSW on 4 August 2020, to impose several conditions on his registration as a dentist (the August 2020 Decision). In addition, Dr Lee seeks an order staying the operation of that decision. 2. While it is not in issue that the Health Practitioner Regulation National Law (NSW) (the National Law) gives Dr Lee a right of appeal from the August 2020 Decision to NCAT, the Dental Council contends that NCAT does not have authority to decide whether to stay the operation of the August 2020 Decision. Dr Lee disagrees. Whether, as Dr Lee contends and the Dental Council disputes, NCAT can stay the operation of the August 2020, turns on whether that decision was made under s 150(1) of the National Law.