Medical Council of New South Wales v Smithson [2021] NSWCA 53

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Medical Council of New South Wales v Smithson [2021] NSWCA 53 Hearing dates: 31 March 2021 Date of orders: 08 April 2021 Decision date: 08 April 2021 Before: Payne JA Simpson AJA Garling J Decision: (1) Leave to appeal granted to the extent that leave is necessary; (2) The appeal is allowed; (3) The decision of the New South Wales Civil and Administrative Tribunal of 8 February 2021 ([2021] NSWCATOD 17) is quashed; (4) The case is remitted to the New South Wales Civil and Administrative Tribunal for hearing in accordance with these reasons; (5) Pursuant to cl 29(8) of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW), until the Tribunal makes orders after the hearing referred to in order 4, the decision of the Medical Council of New South Wales under appeal to suspend the registration of the respondent as a medical practitioner is stayed, subject to the respondent complying with the conditions upon which that stay is granted which conditions are recorded in Annexure A to these reasons; (6) Grant liberty to apply to the Court by email to the chambers of Payne JA on 3 days' notice for the lifting of the stay if the Council alleges that a condition of the stay has been breached by the appellant; (7) Upon the making of orders by the Tribunal after the hearing referred to in order 4, the stay granted in order 5 is automatically discharged without further order of this Court; and (8) Each party pay its own costs of the appeal proceedings. Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – appeal under Health Practitioner Regulation National Law (NSW) s 159 against decision of Council under s 150 – hearing de novo – essential task of the Tribunal in such an appeal – error conceded – remittal of matter to the Tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 5 cll 29(1)(d), 29(2)(b), 29(4)(b), 29(6), 29(8) Evidence Act 1995 (NSW), s 140 Health Practitioner Regulation National Law (NSW) No 86a of 2009 (NSW), Div 3 Subdivs 2-6, ss 150, 150D, 150F, 159, 159B, 159C Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Collector of Customs v Pozzolanic [1992] FCA 897; (1992) 16 AAR 481 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 Kirby v Dental Council of NSW [2020] NSWCA 91 Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 93 ALJR 1164 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 X v The Commonwealth (1999) 200 CLR 177; [1999] HCA 63 Category: Principal judgment Parties: Medical Council of New South Wales (Appellant) Dr Jonathan Smithson (Respondent) Representation: Counsel: K Richardson SC with A Petrie (Appellant) P Strickland SC with P Dwyer and A Poukchanski (Respondent)