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Kirby v Health Care Complaints Commission [2021] NSWCA 139

Case summary: Health Care Complaints Act 1993 (NSW) (HCC Act) S4 definition of “disciplinary body”.

Dr. Kirby brought proceedings in the Common Law Division seeking relief by way of judicial review under s69 of the Supreme Court Act 1970 (NSW) and the Court’s supervisory jurisdiction on the grounds that NCAT did not have jurisdiction to deal with the complaint because NCAT is not a “disciplinary body” established under the National Law, and the decision of the Director of Proceedings to exercise the commission’s prosecution functions by referring the complaint to NCAT was ultra vires (beyond the powers) because the Director cannot prosecute a complaint.

The primary judge rejected Dr. Kirby’s jurisdictional challenge finding that the words “establish” and “constitute” are functionally synonymous and although NCAT is established by the Civil and Administrative Tribunal Act 2013 (NSW) when hearing complaints against a registered health practitioner, NCAT is constituted under the National Law, given the special constitution requirements in s165B (2) of the National Law.

The primary judge’s reasoning at [73] s7(1) of the CAT Act unambiguously “establishes” the Tribunal at large: however, it is also the case that the Tribunal, in exercising its function of conducting an inquiry into a complaint made against a health practitioner, is constituted under Div 10 of Pt 8 of the National Law. S165B (1) sets out how the Tribunal is constituted for the purpose of hearing a complaint against a health practitioner.

Costs follow the event per UCPR 2005 r 42.1.

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