Trinh v Medical Council of New South Wales [2024] NSWCA 58

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Trinh v Medical Council of New South Wales [2024] NSWCA 58 Hearing dates: 6 March 2024 Date of orders: 15 March 2024 Decision date: 15 March 2024 Before: Mitchelmore JA; Basten AJA; Griffiths AJA Decision: In matter No 2022/307304: (1) Dismiss the further amended summons (judicial review) filed on 25 September 2023. (2) Order that the applicant pay the respondent's costs in this Court. In matter No 2023/51686: Dismiss the amended summons seeking leave to appeal filed 25 September 2023. In matter No 2022/361537: Dismiss the further amended notice of appeal filed 25 September 2023. Catchwords: ADMINISTRATIVE LAW – functions conferred on professional council – power to delegate functions – no power to delegate power to delegate – delegation of function to persons appointed by Executive officer – whether delegation valid OCCUPATIONS – medical practitioners –misconduct and discipline – power to suspend registration – delegation of power – delegation to panel appointed by Executive Officer – whether invalid subdelegation OCCUPATIONS – medical practitioners – misconduct and discipline – obligation of Medical Council to refer complaint to Tribunal if grounds for suspension or deregistration – obligation of Medical Council to refer complaint to Health Care Complaints Commission – Commission to investigate – consideration of statutory scheme STATUTORY INTERPRETATION – obligation of professional council under National Law to refer complaint to disciplinary tribunal – provisions of National Law to be read harmoniously with State law establishing Complaints Commission – inconsistency – State law to prevail – requirement for investigation prior to referral to disciplinary tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 80 Health Care Complaints Act 1993 (NSW), ss 11, 14, 39, 90B, 90C, 93 Health Practitioner Regulation National Law (NSW) 2009 (NSW) ss 41J, 41Q, 144, 144D, 144G, 145B, 145D, 159, 159B, Sch 7, cll 1, 29 Cases Cited: Health Care Complaints Commission v Hill [2022] NSWCA 270 Kirby v Health Care Complaints Commission (2021) 105 NSWLR 217; [2021] NSWCA 139 Livers v Legal Services Commissioner (2020) 103 NSWLR 738; [2020] NSWCA 317 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263; [2022] NSWCA 60 Tangsilsat v Council of Law Society of New South Wales [2019] NSWCA 144 Trinh v Medical Council of New South Wales [2023] NSWCATOD 140 Category: Principal judgment Parties: Dr My Le Trinh (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: T Hall (Solicitor advocate – Applicant) K Richardson SC / I Fraser (Respondent)