Health Care Complaints Commission v Hill [2022] NSWCA 270

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hill [2022] NSWCA 270 Hearing dates: 11 October 2022 Date of orders: 15 December 2022 Decision date: 15 December 2022 Before: Ward P at [1]; Mitchelmore JA at [2]; Basten AJA at [9] Decision: (1) Grant the applicant Commission leave to appeal from the judgment in the Common Law Division delivered on 16 December 2021. (2) Allow the appeal and set aside orders 3, 4 and 5 made in the Common Law Division on 16 December 2021. (3) In place thereof: (a) Dismiss the amended summons. (b) Order that the plaintiff pay the first defendant's costs of the proceedings in the Division. (4) Order that the respondent pay the Commission's costs in this Court. Catchwords: OCCUPATIONS – health practitioners – misconduct and discipline – disciplinary proceedings – Director of Proceedings' decision to commence NCAT disciplinary proceedings – application alleging unsatisfactory professional conduct and professional misconduct – whether allegations of professional misconduct were legally unreasonable ADMINISTRATIVE LAW – reviewability – grounds of review – subject matter of power or decision – prosecutorial decision – whether Director of Proceedings' decision should be treated as final – statutory interpretation – prosecutorial powers largely immune from judicial review but subject to NCAT control – legislature did not intend Court to determine which applications may be considered by specialist tribunal – decision is non-justiciable ADMINISTRATIVE LAW – remedies – certiorari –decision to refer complaint had no effect on medical practitioner's legal rights – no power to make fact findings or affect registration – no relief in certiorari ADMINISTRATIVE LAW – remedies – discretionary factors – failure to make strike out application in NCAT – discretion to refuse relief Legislation Cited: Building and Construction Industries Security of Payment Act 1999 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), Pt 4, ss 36, 38; Div 3, ss 55, 60; Sch 5, Pt 4, Div 3, cl 9 Health Care Complaints Act 1993 (NSW), ss 3A, 4, 7, 8, 9, 13, 19, 20, 23, 39, 40, 41; Pt 5, ss 75, 76, 80, 81, 90A, 90B, 90C, 93 Health Practitioner Regulation National Law (NSW), ss 3, 3A; Pt 8, s 139F; Part 8, Div 3, Subdiv 1, s 144B; Subdiv 2, ss 145C, 145D, 149; Sch 5D, cl 11 Commonwealth Constitution, Ch III Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Barwick v Law Society of New South Wales [2000] HCA 2; 74 ALJR 419 Batistatos v Roads and Trafic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 The King v Hickman; Ex parte Fox (1945) 70 CLR 598; [1945] HCA 53 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Adam Hill (Respondent) Representation: Counsel: K Richardson SC / M Pulsford (Applicant) A Moses SC / J Alderson / E Chan (Respondent)