FWX v Medical Council of NSW [2023] NSWCATOD 138

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FWX v Medical Council of NSW [2023] NSWCATOD 138 Hearing dates: 14 September 2023 Date of orders: 14 September 2023 Decision date: 14 September 2023 Jurisdiction: Occupational Division Before: Acting Judge Levy SC, Principal Member Decision: Stay of medical registration suspension order. See paragraph [104] for formal orders Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal – application by medical practitioner for stay of order imposed by Medical Council of NSW suspending medical registration - pending appeal raising points of law – claim of denial of procedural fairness – claim of failure to take into account relevant expert evidence – claim of erroneous conclusion the applicant posed a risk to patients and the profession – claim the decision to suspend was legally unreasonable and not supported by the evidence - whether circumstances justified the exercise of emergency powers of suspension pursuant to s 150 of National Law (NSW) – balance of convenience warrants grant of stay pending determination of pending appeal – existing conditions for practice to continue pending determination of the appeal COSTS – Medical Council to pay the applicant's costs of seeking a stay WORDS AND PHRASES – element of confusion in initial reasons given for suspension – lack of clarity due to use of illegitimate conjunction "and/or" in initial reasons for suspension Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64(1) Health Practitioner Regulation National Law (NSW), s 150, s 159B Cases Cited: Health Care Complaints Commission v FWX [2023] NSWCATOD 100 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206 Medical Council of NSW v Lee [2017] NSWCA 282 Pridgeon v Medical Council of NSW (2022) 108 NSWLR 263; [2022] NSWCA 60 Rebenta Pty Ltd v Wise [2009] NSWCA 212 Strinic v Singh [2009] NSWCA 15 Vaccaro v MLC Limited [2016] NSWDC 85 Texts Cited: J Med Toxicol. (2017) Mar: 13(1) Journal of Analytical Toxicology (2015): 39 Category: Procedural rulings Parties: Applicant: FWX (A pseudonym) Respondent: Medical Council of NSW Representation: Counsel: Ms Talia Epstein (Applicant) Mr Henry El Hage (Respondent)