Callan v Medical Board of Australia [2024] NSWSC 336

Supreme Court New South Wales

Medium Neutral Citation: Callan v Medical Board of Australia [2024] NSWSC 336 Hearing dates: 29 February 2024 Date of orders: 2 April 2024 Decision date: 02 April 2024 Jurisdiction: Common Law Before: Griffiths AJ Decision: (1) An extension of time to file the summons under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) is granted. (2) The summons is dismissed with costs. Catchwords: ADMINISTRATIVE LAW — judicial review of two guidelines issued by the Medical Board of Australia (Medical Board) under 39 of the Health Practitioner Regulation National Law (National Law) — whether the guidelines are properly characterised as rules (and not guidelines) and are therefore ultra vires the Medical Board's functions and powers under ss 35 and 39 of the National Law — whether the guidelines were issued for an improper or unauthorised purpose — whether the Medical Board failed to take into account mandatory relevant considerations Legislation Cited: Health Insurance Act 1973 (Cth) ss 23DN, 23DNA Health Legislation (Miscellaneous) Amendment Act) 2022 (NSW) Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) s 4(a) Health Practitioner Regulation (Adoption of National Law) Regulation 2022 (NSW) Health Practitioner Regulation National Law Act 2009 (Qld) s 4, Pt 4, Sch ss 3A, 5, 12, 35, 38, 39, 40, 41, 52(1)(b) and (e); 65(1)(e) and 82(1)(c)(i)(E), 133, Pt 8, Sch 7 cl 10 Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (Qld) Health Practitioner Regulation National Law (NSW) 2009 ss 3, 3A, 3B, 4, 5, 12, 35, 38, 39, 40, 41, 52(1)(b) and (e); 65(1)(e) and 82(1)(c)(i)(E), 133, Sch 7 cl 10 Health Practitioner Regulation National Law (Qld) ss 3A, 35, 39 Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) Health Practitioner Regulation National Law (WA) Act 2010 (WA) Sch ss 35, 39 National Health Act 1953 (Cth) Uniform Civil Procedure Rules 2005 (NSW) r 59.10 Cases Cited: Brownells Ltd v Ironmongers' Wages Board (1950) 81 CLR 108 at 119-120; [1950] HCA 3 Environment Protection Authority v Condon as Liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) [2014) 86 NSWLR 499; [2014] NSWCA 149 Health Care Complaints Commission v Do [2014] NSWCA 307 Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 Lynch v Minister for Human Services and Health (1995) 61 FCR 515 Norbis v Norbis (1986) 161 CLR 513 at 520; [1986] HCA 17 Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 Texts Cited: Australian Health Practitioner Regulation Agency (Ahpra), Independent review of the regulation of medical practitioners who perform cosmetic surgery (August 2022) Ahpra, Consultation Paper: Independent review of the regulation of health practitioners in cosmetic surgery (March 2022) Explanatory Note, Health Practitioner Regulation (Adoption of National Law) Regulation 2022 (NSW) Explanatory Note, Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 (Qld) Medical Board of Australia, Good medical practice: a code of conduct for doctors in Australia (October 2020) Medical Board of Australia, Guidelines for registered medical practitioners who advertise cosmetic surgery (1 July 2023) Medical Board of Australia, Guidelines for registered medical practitioners who perform cosmetic surgery and procedures (1 July 2023) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 February 2022 at 6959 Category: Principal judgment Parties: Dr Peter Callan (First Plaintiff) Dr Simone Matousek (Second Plaintiff) Medical Board of Australia (Defendant) Representation: Counsel: B Walker SC/A Lim (Plaintiffs) N Hutley SC/O Jones/A Horne (Defendant)