Ghosh v Medical Council of New South Wales

(2020) 102 NSWLR 303; [2020] NSWCA 122

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Particular administrative bodies
3. › NSW Civil and Administrative Tribunal
4. › Appeal under Health Practitioner Regulation National Law s 159
5. › Hearing de novo
6. › Essential task of Tribunal on appeal from s 150 decision
7. › Whether Tribunal failed to identify unacceptable risk to public
8. › Health Practitioner Regulation National Law (NSW), ss 150, 150A, 159, 159C
1. Administrative Law
2. › Hearing rule
3. › Rules of evidence
4. › Examination and cross-examination
5. › Rule in Browne v Dunn
6. › Whether Tribunal erred in failing to have regard to circumstance that evidence not accepted went unchallenged by cross-examination
1. Administrative Law
2. › Ground of review other than procedural fairness
3. › Irrelevant and relevant considerations
4. › Findings of fact
5. › Whether obvious and innocent explanation not considered in circumstances where findings were grave and infected the whole decision
1. Administrative Law
2. › Ground of review other than procedural fairness
3. › Decision not authorised
4. › Statutory construction
5. › Whether Council precluded from varying s 150 decision under s 150A where no finding of change in circumstances
6. › Whether s 150C(2) authorises variation without such limitation
7. › Health Practitioner Regulation National Law (NSW), ss 150, 150A, 150C

Quick Take

Practitioners appearing before NCAT in health practitioner regulation matters should note that the Tribunal must identify the specific risk posed and assess whether it is unacceptable, rather than treating the practitioner as bearing an onus to displace the need for protective action; and that where expert reports are tendered without objection and not challenged by cross-examination, the Tribunal should not treat the failure to call those experts as adverse to the tendering party.