Health Care Complaints Commission v CSM [2018] NSWSC 902

Supreme Court New South Wales

Medium Neutral Citation: Health Care Complaints Commission v CSM [2018] NSWSC 902 Hearing dates: 20 July 2017 Date of orders: 18 June 2018 Decision date: 18 June 2018 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Allow the appeal in part

(2) Set aside order 1 made by the Tribunal on 5 October 2016.

(3) Otherwise refuse leave to appeal and dismiss the appeal in so far as it challenges the non-publication order made by the Tribunal.

(4) Remit the matter to the Civil and Administrative Tribunal for further hearing confined to legal argument on the issue of what protective orders should be made based on the evidence tendered and heard on 27 June 2016.

(5) The parties to provide written submissions on costs of the appeal within 10 days, failing which I will order that each party pay its or his own costs of this appeal. Catchwords: ADMINISTRATIVE LAW – judicial review – appeal on question of law – procedural fairness – protective orders – where Tribunal indicated contentment with proposed orders but then did not make all proposed orders – where procedural fairness was denied – whether certain orders may only be made as a package – statutory interpretation – individual orders may be made to the exclusion of others Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) ss 38, 64, Schedule 5 cl 29 Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7, 8 Health Care Complaints Act 1993 (NSW) s 3 Health Practitioner Regulation National Law (NSW) ss 3A, 52, 139B, 139E, 149B, 149C, 149E, 163B, 165M, Schedule 5 cl 7 Cases Cited: Bahramy v Medical Council of New South Wales [2015] NSWCA 384 BHP Billiton v Dunning [2013] NSWCA 421 Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Huber [2017] NSWCATOD 68 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Saedlounia (No 2) [2017] NSWCATOD 77 Health Care Complaints Commission v Turner [2016] NSWCATOD 163 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6 Re UF [2017] NSWSC 437 Category: Principal judgment Parties: Health Care Complaints Commission (Plaintiff) CSM (Defendant) Representation: Counsel: C Webster SC (Plaintiff) A Abadee/E Ball (Defendant)