Medical Council of New South Wales v Lee [2017] NSWCA 282

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Medical Council of New South Wales v Lee [2017] NSWCA 282 Hearing dates: 16 October 2017 Decision date: 06 November 2017 Before: Beazley P at [1]; Basten JA at [2]; Sackville AJA at [17] Decision: (1) Grant leave to appeal from the decision of the Civil and Administrative Tribunal given on 4 September 2017 (Stay Decision).

(2) Allow the appeal.

(3) Set aside Orders 1 and 2 made by the Stay Decision.

(4) Order that the appellant pay the respondent's costs of the appeal, including the application for leave to appeal. Catchwords: PROFESSIONS AND TRADES – allegations of criminal conduct against medical practitioner – medical practitioner suspended pursuant to s 159 of Health Practitioner Regulation National Law (NSW) – stay granted by Tribunal pursuant to s 43(3) of Civil and Administrative Tribunal Act 2013 (NSW) – whether Tribunal had power to grant stay – Tribunal not empowered by s 43(3) – National Law intended to be exhaustive – Tribunal not empowered by s 161B of National Law unless medical practitioner appeals against the suspension decision with respect to a point of law

PROCEDURE – whether appellant's failure to put argument to Tribunal precludes grant of leave – appellant concedes it should pay costs of appeal – interests of justice that appellant be permitted to rely on argument Legislation Cited: Corporations Act 2001 (Cth), s 450F

Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW), Sch 6.4 Civil and Administrative Tribunal Act 2013 (NSW), ss 2, 4, 7, 31, 35, 36, 43; Sch 5 cls 8, 9, 10, 13, 29 Civil Procedure Act 2005 (NSW), s 101 Health Care Complaints Act 1993 (NSW) Health Legislation Amendment Act 2012 (NSW) Sch 1 [1.1] Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), ss 2, 4 Health Practitioner Regulation Act 2009 (NSW), s 4 Health Practitioner Regulation Amendment Act 2010 (NSW) Medical Practice Act 1992 (NSW), ss 2A, 66, 66AB 95, 95A, 97, 98, 164 Medical Practice Amendment Act 2008 (NSW)