Dr Hill v Health Care Complaints Commission [2021] NSWSC 1645

Supreme Court New South Wales

Medium Neutral Citation: Dr Hill v Health Care Complaints Commission [2021] NSWSC 1645 Hearing dates: 16 March 2021; 24-25 March 2021 Date of orders: 16 December 2021 Decision date: 16 December 2021 Jurisdiction: Common Law Before: Simpson AJ Decision: 1. Extend the time within which to commence proceedings with respect to the decision of the Health Care Complaints Commission to refer the complaint made by the Medical Council to the Director of Proceedings to 25 September 2020; 2. Grant leave to the plaintiff to file and rely on the proposed amended summons provided to the Court on 28 March 2021; 3. Quash the decision of the Health Care Complaints Commission to prosecute the plaintiff in the Civil and Administrative Tribunal of NSW for professional misconduct; 4. Otherwise dismiss the amended summons; 5. Reserve the question of costs. Catchwords: HEALTH – professional registration and discipline – complaints – where complaint against medical practitioner referred by Health Care Complaints Commission to Director of Proceedings under Health Care Complaints Act 1993 (NSW) s 39(1)(a) – where referral decision challenged – failure to give reasons – reasons subsequently provided ADMINISTRATIVE LAW – whether reviewable error of law – error of law on the face of the record – where Health Care Complaints Commission gave notice of referral decision under Health Care Complaints Act 1993 (NSW) s 41(1) – where notice provided conclusion without explanation – where only semblance of reasons given – failure to provide reasons amounts to error of law on the face of the record – availability of certiorari – reasons subsequently provided – certiorari unavailable HEALTH - professional registration and discipline – complaints – where Director of Proceedings determined to prosecute complaint against medical practitioner before NSW Civil and Administrative Tribunal under Health Care Complaints Act 1993 (NSW) s 90B for unsatisfactory professional conduct and professional misconduct – where prosecution decision challenged – where conduct not capable of constituting professional misconduct – prosecution decision unreasonable as lacking evident and intelligible justification ADMINISTRATIVE LAW – remedies – certiorari – availability of certiorari – where preliminary decision a precondition to ultimate decision affecting legal rights and interests – sufficient connection with ultimate decision to attract certiorari ADMINISTRATIVE LAW – ground of review other than procedural fairness – irrelevant and relevant considerations – where Tribunal had previously given reasons for setting aside suspension of registration – whether Tribunal reasons relevant to referral decision or prosecution decision in relation to the complaint – different legal tests in each case – Tribunal's reasons not a mandatory relevant consideration Legislation Cited: Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Interpretation Act 1987 (NSW), Supreme Court Act 1970 Cases Cited: AB v Judicial Commission of New South Wales [2018] NSWCA 264 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223 AYHT v Medical Board of South Australia (2000) 77 SASR 148 Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Hastwell v Health Care Complaints Commission [2021] NSWCA 22 Henroth Investments Pty Ltd v Sydney North Planning Panel [2019] NSWCA 68 Hill v Medical Council of NSW [2019] NSWCATOD 52 Hill v Medical Council of NSW [2019] NSWCATOD 97 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 House v The King (1936) 55 CLR 499; [1936] HCA 40 Insurance Australia Ltd (t/as NRMA Insurance) v Wannous [2020] NSWSC 694 Kirby v Health Care Complaints Commission [2021] NSWCA 139 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 R v Collins, Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 73; [2013] NSWCA 383 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Principal judgment Parties: Dr Adam Hill (Plaintiff) Health Care Complaints Commission (Defendant) Representation: Counsel: A Moses SC/J Alderson/E Chan (Plaintiff) K Richardson SC/M Pulsford (Defendant)