Kirby v Health Care Complaints Commission

[2021] NSWCA 138

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Particular administrative bodies
3. › Health Care Complaints Commission
4. › Prohibition orders under s 41A
5. › Whether Commission required to consult appropriate professional council under s 39(2)
6. › Whether Dental Council was 'appropriate professional council' where complaint concerned conduct outside field of registration
7. › Health Care Complaints Act 1993 (NSW), ss 39(2), 41A
1. Administrative Law
2. › Validity of administrative decisions
3. › Non-compliance with statutory conditions
4. › Materiality of non-compliance
5. › Whether failure to consult could realistically have resulted in different decision
6. › Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
7. › MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
1. Statutes
2. › Construction
3. › Health Care Complaints Act 1993 (NSW)
4. › Meaning of 'appropriate professional council (if any)'
5. › Whether parenthetical '(if any)' in s 39(1)(c) qualifies obligation in s 39(2)
6. › Relationship between ss 39(2) and 41A(3)

Quick Take

The Dental Council (or equivalent professional council) is likely an 'appropriate professional council' under s 39(2) for HCCC investigations into registered health practitioners' conduct outside their field of registration, but failure to consult will not invalidate a prohibition order if the failure was not material.