EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 Hearing dates: 24 May 2021 Date of orders: 06 August 2021 Decision date: 06 August 2021 Before: Bell P at [1]; Macfarlan JA at [78]; Brereton JA at [79] Decision: 1. Leave to appeal granted 2. Appeal dismissed with costs Catchwords: CIVIL PROCEDURE – application for leave to appeal from an interlocutory decision of the Civil and Administrative Tribunal of NSW – where Tribunal refused to grant the applicant an extension of time in which to appeal from a decision of the Medical Council of NSW, which had imposed a condition on the applicant's registration as a health practitioner that she not practise medicine – where applicant sought to appeal the Medical Council's decision over one year after it provided its reasons for imposing the relevant condition – where applicant contended that her appeal was as of right and that no extension of time was required to be granted by the Tribunal – whether Tribunal was correct to hold that an extension of time within which to appeal from the Council's decision was required – whether Tribunal's discretion miscarried in refusing the applicant an extension of time HEALTH – medical professionals – whether Medical Council of NSW had the power to impose a temporary condition that a practitioner not practise medicine – where such a power is found under s 150(1)(b) of the Health Practitioner Regulation National Law (NSW) PRACTICE AND PROCEDURE – Procedural fairness – whether there had been a breach of procedural fairness by the Medical Council of NSW in conducting a hearing pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) in the applicant's absence – whether there was a breach of procedural fairness in the Council denying the applicant's request for an adjournment of that hearing – where applicant had been given sufficient notice of the hearing and where her application for an adjournment was raised only a day before the hearing was scheduled – where Tribunal was correct to conclude that there was no breach of procedural fairness by the Council Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) ss 4, 31(1), 41, 83, Sch 5 cl 29(6)(a) Supreme Court Act 1970 (NSW) s 48 Health Practitioner Regulation National Law (NSW) ss 150, 150C, 150F, 150H(2), 150I(2), 159B, 161 Civil and Administrative Tribunal Rules 2014 (NSW) r 25(4) Cases Cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 Cuttler v Browne (2010) 201 IR 141; [2010] QCA 346 Frugtniet v State Bank of New South Wales [1999] NSWCA 458 Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30 Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309; [1985] HCA 48 Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 Khan v Medical Council of NSW [2016] NSWCATOD 88 Kirby v Dental Council of NSW [2020] NSWCA 91 Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (2013) 280 FLR 118; [2013] ACTSC 198 Menzies v CRCI Pty Limited [2007] NSWCA 118 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Roberts v Nursing and Midwifery Board of Australia [2017] NSWCATOD 109 Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47 Sweeney v Fitzhardinge (1906) 4 CLR 716; [1906] HCA 73 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 Texts Cited: P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) Category: Principal judgment Parties: EFQ (a pseudonym) (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: