Attia v Health Care Complaints Commission [2017] NSWSC 1066

Supreme Court New South Wales

Medium Neutral Citation: Attia v Health Care Complaints Commission [2017] NSWSC 1066 Hearing dates: 8 May 2017; 22 June 2017 Date of orders: 16 August 2017 Decision date: 16 August 2017 Jurisdiction: Common Law Before: Walton J Decision: The Court directs that the HCCC file within 7 days of the publication of this judgment short minutes of order reflecting this judgment. If the orders are duly executed by both parties the Court will make orders administratively in Chambers, providing the orders properly reflect this judgment. In the absence of agreement, the HCCC shall file and serve the short minutes of order within the same 7 day period and the plaintiff shall file and serve short minutes of order containing any alternative orders within a further 7 days. The Court will in that event issue orders or list the matter for short argument as to the form of orders. Catchwords: ADMINISTRATIVE LAW – appeal – decision of the Civil and Administrative Tribunal that the plaintiff's registration as a pharmacist be cancelled – regulatory system for registered pharmacists – regulatory system for pharmaceutical wholesalers – interaction of regulatory schemes – protective legislation and statutory objects – whether the finding of unsatisfactory professional conduct under s 139B(1)(a) constituted an error of law because the impugned conduct was undertaken by the plaintiff as the office holder of a licenced pharmaceutical wholesaler corporation and not in the practice of a pharmacy – whether impugned conduct in practice of practitioner's profession – procedural fairness – hearing rule – whether the determination by the Tribunal to take into account matters not within the particulars of the complaints breach of procedural fairness – notice and litigation of non-particularised issues – a single stage process – relevant principles – orders – leave partially refused – appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Health Practitioner Regulation National Law (NSW) Medical Practitioners Act 1938 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Therapeutic Goods Act 1989 (Cth) Cases Cited: Annamunthodo v Oilfields Workers' Trade Union [1961] AC 945 B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481 Barnes v Australian Telecommunications Commission (1989) 25 FCR 283; [1989] FCA 47 Battle v Bundagen Co-operative Ltd (No 2) [2011] NSWCA 38 Bryant v Hawkesbury Radio Communication Co-operative Society Limited [2014] NSWSC 848 Childs v Walton [1990] NSWCA 41 CSR Ltd v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83 Daskalopoulos v Health Care Complaints Commission [2002] NSWCA 200 Forge v Australian Securities and Investments Commission (2004) 213 ALR 574; [2004] NSWCA 448 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Health Care Complaints Commission v Attia (No 2) [2017] NSWCATOD 25 Health Care Complaints Commission v Attia [2016] NSWCATAD 309 Health Care Complaints Commission v Little [2016] NSWCATOD 146 Howe v Administrative Decisions Tribunal of New South Wales [2003] NSWSC 157 Howe v Administrative Decisions Tribunal of New South Wales [2003] NSWCA 120 King v Health Care Complaints Commission [2011] NSWCA 353 Kioa v West (1985) 159 CLR 550 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Lawrie v Lawler (2016) 168 NTR 1 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 Malone v Marr [1981] 2 NSWLR 894 McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 New South Wales Bar Association v Cummins [2001] NSWCA 284 Ng v Health Care Complaints Commission [2017] NSWSC 53 Nominal Defendant v Saleh [2011] NSWCA 16 Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Aust) Pty Ltd (1978) 139 CLR 231 Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208; [1989] HCA 13 Re Minister for Immigration and Multicultural Affairs, Re Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Smith v New South Wales Bar Association (1992) 176 CLR 256 Smith v Superannuation Complaints Tribunal [2008] FCA 1528 Sudath v Health Care Complaints Commission [2012] NSWCA 171 Szeel v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 62 Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354 United Voice v Restaurant and Catering Association of Victoria (2014) 226 FCR 255; [2014] FCAFC 121 Veal v The Minister for Immigration, Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 Texts Cited: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, (6th ed, 2017, Thomson Reuters) Category: Principal judgment Parties: Mina Attia (Plaintiff) Health Care Complaints Commission (Defendant) Representation: Counsel: M R Pesman SC with T Flaherty (Plaintiff) L Fernandez (Defendant)