Recent decisions for Civil and Administrative Tribunal (Occupational Division)

Catchwords:

OCCUPATIONS — application for approval as lay associate under s 121 of the Legal Profession Uniform Law (NSW) — whether NSW Civil and Administrative Tribunal (NCAT) has jurisdiction to determine application — whether applicant is a person who has been convicted of a serious offence — whether applicant’s criminal conviction is spent for purposes of s 121 of the Uniform Law — approval granted by NCAT subject to conditions — continuing non-disclosure orders made

Catchwords:

MEDICAL PRACTITIONERS – whether applicant should be granted extension of time to appeal decision of Medical Council – whether extending time to appeal would have any utility where applicant has pending appeal against later decision of Council – whether refusing to extend time to appeal could prejudice applicant

Catchwords:

OCCUPATIONS – legal practitioners – solicitors – misconduct and discipline – disciplinary proceedings – whether conduct amounts to unsatisfactory professional conduct or professional misconduct.

Catchwords:

OCCUPATIONAL — application for renewal of contractor licence — electrical wiring— liquidation —relevant person — s 33B Home Building Act 1989 — s 33C Home Building Act 1989

Catchwords:

COSTS – procedural orders – whether time for filing submissions in opposition to costs order should be extended – whether extension of time for filing of submissions should be subject to conditions precedent

Catchwords:

OCCUPATIONS – Medical practitioners – Misconduct and discipline – Unsatisfactory professional conduct – Protective orders

Catchwords:

Administrative Law – real estate agent – licence - fit and proper person

Catchwords:

HEALTH – professional registration and discipline – application for stay of proceedings – sufficiency of medical report – stay refused

Catchwords:

COSTS – no question of principle

Catchwords:

OCCUPATIONS – Medical practitioners – Misconduct and discipline – Cancellation of registration

Catchwords:

ADMINISTRATIVE LAW – refusal of contractor licence – whether fit and proper person – criminal convictions – insufficient evidence of facts behind the criminal convictions – insufficient evidence of the applicant’s rehabilitation - insufficient time has passed in order to adequately determine whether the applicant has been rehabilitated

Catchwords:

OCCUPATIONS – Chinese medicine practitioner – Refusal of registration – Failure to meet compulsory published Standards – onus on appellant – no discretion to waive requirements – costs

Catchwords:

PRACTICE AND PROCEDURE – reinstatement proceedings following cancellation and expiry of non-review – application for stay or referral – application to change respondent – applications to issue summonses – relevance – legitimate forensic purpose – refused

Catchwords:

OCCUPATIONS – medical practitioners – conditions on registration following reinstatement order -

Catchwords:

HEALTH — professional registration and discipline — unregistered nurse — criminal findings for offences — failure to notify of charges and criminal findings — falsified criminal history check — unsatisfactory professional — professional misconduct — scope of disciplinary powers

Catchwords:

Administrative Law – licensing - real estate agent – disciplinary proceedings - failure to provide audit – conduct conceded – penalty only issue

Catchwords:

Administrative Law – licensing - real estate agent – disciplinary proceedings - failure to provide audit – conduct conceded – penalty only issue

Catchwords:

LICENSING – security licence – whether conviction for assault – fit and proper person – public interest

Catchwords:

Administrative Law – home building - qualified supervisor certificate - company in liquidation – whether fit and proper - whether to grant certificate.

Catchwords:

MEDICAL PRACTITIONER- practitioner’s appeal pursuant to National Law s 159 against order of Medical Council imposing conditions on practitioner’s registration pursuant to National Law s 150- where Medical Council seeks imposition of not to practise condition on practitioner’s registration- whether practitioner suffers from impairment pursuant to National Law s 5- whether health and safety of public requires imposition of not to practise condition on practitioner’s registration on other grounds- costs

Catchwords:

PRACTICE AND PROCEDURE – application to set aside summons – relevance – legitimate forensic purpose – nature of administrative review proceedings

Catchwords:

OCCUPATION – optometrist - misconduct and discipline – whether unfit in the public interests to practice – convicted of a criminal offence – unsatisfactory professional conduct – protective not punitive – cancellation – non-review period – costs order

Catchwords:

LOCAL GOVERNMENT — Councillors — misconduct — stay

Catchwords:

ADMINISTRATIVE LAW – administrative review – refusal of certificate of registration – whether disqualified person – convictions for dishonesty – whether offences should be ignored – whether offences trivial – passage of time - whether fit and proper person

Catchwords:

OCCUPATIONS — Nurses — Qualification and registration — Impairment — whether to impose a condition on registration to not practice as a registered nurse

Catchwords:

PROFESSIONS AND TRADES – health care professional – registered podiatrist – whether practitioner guilty of unsatisfactory professional conduct – whether practitioner guilty of professional misconduct – repeated breach of conditions on registration – misleading statements to the regulator − appropriate protective orders COSTS − general rule that costs follow the event unless disentitling conduct – the applicant succeeded on all grounds – costs ordered

Catchwords:

HEALTH — Professional registration and discipline — professional misconduct — unsatisfactory professional conduct — non-compliance with conditions on registration — non-disclosure of conditions to employer

Catchwords:

CIVIL PROCEDURE – Summary disposal – dismissal of proceedings – want of jurisdiction

Catchwords:

Medical practitioner- where practitioner’s registration cancelled- whether pending disciplinary proceedings should be terminated

Catchwords:

OCCUPATION — health practitioner — practitioner guilty of unsatisfactory professional conduct (s 139B(1)(b) National Law) — practitioner made the subject of a criminal finding (s144(a) National Law)

Catchwords:

LOCAL GOVERNMENT – whether order suspending councillor from civic office previously stayed by Tribunal pending determination of councillor’s appeal has expired – whether councillor able to make further application to stay suspension order pending determination of pending appeal

Catchwords:

Administrative Law – Owner builder permit; dual occupancy; special circumstances

Catchwords:

OCCUPATIONS – medical practitioners – appeal pursuant to s 159B of the Health Practitioner Regulation National Law (NSW) 2009 seeking a stay of the orders of the delegates of the Medical Council of New South Wales imposing practice conditions ADMINISTRATIVE LAW – identification of matters with respect to points of law – relevant points of law established – misapplication of the emergency power conferred by s 150 of the National Law – procedural unfairness established – balance of convenience requires order for a stay COSTS – Medical Council to pay the applicant’s costs of seeking a stay

Catchwords:

LOCAL GOVERNMENT - appeal against order suspending councillor from civic office - whether judicial review principles applicable in appeal by way of hearing de novo - relevance of grounds for judicial review to merits review of suspension decision - whether suspension decision should be confirmed or set aside and new decision made - whether misconduct resulting in prior suspension and conduct relied on in support of challenged suspension separate and discrete misconduct or part of single course of misconduct - determination of appropriate protective orders

Catchwords:

OCCUPATIONS – legal practitioners – barristers – complaint about a barrister brought by individual purportedly under Legal Profession Uniform Law (NSW) – no disciplinary proceedings brought by designated local regulatory authority – jurisdiction of NSW Civil and Administrative Tribunal (NCAT) not engaged – decision of designated local regulatory authority to close complaint not reviewable by NCAT– proceedings dismissed for want of jurisdiction

Catchwords:

OCCUPATIONS – legal practitioners – solicitors – complaint about a solicitor brought by individual purportedly under Legal Profession Uniform Law (NSW) – no disciplinary proceedings brought by designated local regulatory authority – jurisdiction of NSW Civil and Administrative Tribunal (NCAT) not engaged – decision of designated local regulatory authority to close complaint not reviewable by NCAT – proceedings dismissed for want of jurisdiction

Catchwords:

PROFESSIONS – medical – unsatisfactory professional conduct – professional misconduct

Catchwords:

HEALTH – professional registration and discipline – where Pharmacy Council placed conditions on practitioner’s registration – application for stay of conditions pending hearing of an appeal under s 159B(1) of the Health Practitioner Regulation National Law (NSW) – power of Tribunal to impose conditions on registration following stay of condition by consent

Catchwords:

PROFESSIONS AND TRADES – health care professional - pharmacist – whether disciplinary proceedings against four pharmacists connected to the same pharmacy should be joined – relevant principles

Catchwords:

PRACTICE AND PROCEDURE – Reinstatement – explanation for failure to attend, exercise of discretion

Catchwords:

HEALTH – professional registration and discipline – complaints – nurse – unsatisfactory professional conduct – professional misconduct – criminal offences and convictions

Catchwords:

ADMINISTRATIVE LAW — application for review of decision to refuse contractor licence following company liquidation — whether there is evident risk to the public — whether all reasonable steps taken to avoid liquidation — whether sufficient risk mitigation measures to avoid future liquidation — application of s 33B, s 33C(3) and s 33(4) of the Home Building Act 1989

Catchwords:

PROFESSIONS AND TRADES – health care professional – registered nurse – repeated inappropriate access of electronic health records of others and own electronic health records – breach of privacy – breach of NSW Health and professional Codes of Conduct – whether practitioner guilty of unsatisfactory professional conduct – whether practitioner guilty of professional misconduct – appropriate protective orders where practitioner no longer registered COSTS – general rule that costs follow the event unless disentitling conduct – impecuniosity is not a justifiable reason for departure – the applicant succeeded on all grounds – costs ordered

Catchwords:

OCCUPATIONS – medical practitioners – Stage One disciplinary hearing; RECUSAL APPLICATION – procedural ruling – dismissal of medical practitioner’s interlocutory application for recusal of Tribunal Members – applicant to pay the respondent’s costs of the dismissed application

Catchwords:

OCCUPATIONS – Medical Practitioners – Unsatisfactory Professional Conduct – Professional Misconduct

Catchwords:

HEALTH - Professional registration and discipline –Summary dismissal of an application by practitioner seeking reasons for a decision of the Medical Tribunal made in December 2003 -Proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance – Practitioner’s application summarily dismissed -Practitioner to pay the Applicant’s costs.

Catchwords:

OCCUPATIONS — Legal practitioners — Barristers — professional misconduct — unsatisfactory professional conduct — statutory interpretation — scope of s 298 Uniform Law — conduct of barrister which occurred in personal proceedings while legally represented

Catchwords:

PRACTICE AND PROCEDURE – Summary disposal – Dismissal of proceedings – Whether proceedings lacking in substance CIVIL AND ADMINISTRATIVE TRIBUNAL – Aboriginal Land Rights Act 1983 (NSW) – Local Aboriginal Land Councils – Boards and board members – Vacancy in office – Board meetings – Procedure – Notice requirements – Quorum – Whether meetings occurred – Absence from meetings

Catchwords:

ADMINISTRATIVE LAW – administrative review – home building – decision to suspend a contractor licence under s 42A Home Building Act 19189 – whether an administratively reviewable decision – no jurisdiction

Catchwords:

CIVIL AND ADMINISTRATIVE TRIBUNAL – Aboriginal Land Rights Act 1983 (NSW) – Local Aboriginal Land Councils – Boards and board members – Vacancy in office – Board meetings – Procedure – Notice requirements – Quorum – Whether meetings occurred – Absence from meetings PRACTICE AND PROCEDURE – Time limits – Extension of time

Catchwords:

PROFESSIONS AND TRADES – health care professional - nursing – whether unsatisfactory professional conduct established – (Other improper or unethical conduct) established – whether professional misconduct established

Catchwords:

PROCEDURAL ORDERS- whether application to discharge order staying suspension order pending further order should be expedited

Catchwords:

Administrative Law – licensing – real estate agent - disqualification

Catchwords:

ADMINISTRATIVE LAW – decision to refuse individual contractor licence under Home Building Act 1989 (NSW) – whether applicant is a fit and proper person – lack of candour in provision of information about criminal history and work experience

Catchwords:

PROFESSIONS AND TRADES – health care professional – nursing – where the respondent has been convicted of an offence of assault occasioning actual bodily harm (domestic violence related) in company of others contrary to s 59(2) of the Crimes Act 1900 (NSW) – where the respondent contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being convicted of one offence of assault occasioning actual bodily harm (domestic violence related) in company of others contrary to s 59(2) of the Crimes Act 1900 (NSW) – appropriate protective order

Catchwords:

PROFESSIONS AND TRADES – health care professional - pharmacist – whether the practitioner was made the subject of criminal findings – whether unsatisfactory professional conduct established (Contravention of Health Practitioner Regulation National Law (NSW) or regulations) established – whether unsatisfactory professional conduct established (Contravention of conditions of registration or undertaking) established – (Other improper or unethical conduct) established whether professional misconduct established – has an impairment within the meaning of the meaning of s 5 of the National Law, being a mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of pharmacy – whether the is competent within the meaning of s 139B(a) of the Health Practitioner Regulation National Law (NSW) in that he lacks the mental or physical capacity to practise as a pharmacist – appropriate protective orders

Catchwords:

External appeal - Aboriginal Land Rights Act – local aboriginal land council – Board member – misconduct findings – decision by respondent to take disciplinary action against board member, including by disqualifying him from holding office for two years - application for a stay of decision to take disciplinary action

Catchwords:

HEALTH – registration of a suspended nurse –– criminal conviction – cancellation of registration – non-review period – costs

Catchwords:

OCCUPATIONS- medical practitioner- where practitioner admitted professional misconduct- whether practitioner’s registration should be suspended- whether practitioner should be reprimanded and fined- practitioner consented to order for payment of Commission’s costs

Catchwords:

Occupation-medical practitioner-applications for summary dismissal of separate proceedings-where the parts of the National Law relied upon by the practitioner do not provide the Tribunal with jurisdiction or power to grant the relief sought-where the practitioner’s applications are frivolous, vexatious, otherwise misconceived or lacking in substance and an abuse of process- where the application by the practitioner for leave to amend the basis of his applications is refused -where the application for summary dismissal is granted and costs ordered against the practitioner.

Catchwords:

OCCUPATION - medical practitioner - breach of conditions of registration - treatment of patients below standard reasonably expected of the Practitioner - treatment of family members, an employee and self-prescribing - Failure to maintain adequate records - Practitioner guilty of unsatisfactory professional conduct - Practitioner guilty of professional misconduct

Catchwords:

ADMINISTRATIVE LAW - administrative review - Home Building - roof plumbing work - cancellation of contractor licence - improper conduct - disciplinary action - mitigation

Catchwords:

OCCUPATIONS – Medical Practitioners – Protective Orders – Cancellation – Review Period

Catchwords:

COSTS – where the applicant abandoned claims during the hearing

Catchwords:

NURSE – criminal offence, larceny, theft of prescribed restricted substance, common assault

Catchwords:

PRACTICE AND PROVEDURE – application for adjournment – relevant principles

Catchwords:

INTERLOCUTORY – stay – interim order – home building contractor licence – plumbing – time limited suspension – applicant’s interest reputational - refused

Catchwords:

OCCUPATIONS – physiotherapist - protective orders – conduct justified suspension or cancellation of registrations but disproportionate – reprimand and conditions - costs

Catchwords:

OCCUPATION — health practitioner — conduct below standard reasonably expected of a practitioner — failure to maintain adequate records — practitioner guilty of unsatisfactory professional conduct — practitioner guilty of professional misconduct.

Catchwords:

OCCUPATIONS – Lay associates – Application for approval as a lay associate of a legal practice under s 121 of the Legal Profession Uniform Law (NSW) – conviction for a serious offence being a sexual offence – whether conviction can become a spent conviction – whether applicant now fit and proper – consideration of evidence concerning remorse, insight and rehabilitation – approval subject to conditions having regard to the need to protect the public and maintain integrity and trust in the legal profession – confidentiality orders

Catchwords:

ADMINISTRATIVE LAW – CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal by medical practitioner against suspension of registration – Whether the circumstances justified the exercise of emergency powers of suspension pursuant to s 150 of the Health Practitioners Regulation National Law (NSW) – Claim of denial of procedural fairness in the process leading to suspension – Claim of failure to take into account relevant evidence – Claim the decision to suspend was illegally unreasonable and not supported by the evidence – Where the parties agree the appeal should succeed – Where orders made in accordance with the agreement of the parties – Existing conditions for practise to continue – Where the respondent is the appropriate review body for conditions placed upon the practitioner’s registration

Catchwords:

OCCUPATIONS – medical practitioners – procedural ruling – dismissal of application by suspended respondent medical practitioner to have an agent appointed to represent her

Catchwords:

ADMINISTRATIVE LAW – administrative review of decision to revoke a security licence under the Security Industry Act 1997 – whether applicant has shown that he is a fit and proper person to hold a licence of the classes held which permits supply of persons to carry on any security activity – where holder of security licence acquitted of a stalking/ intimidation offence– whether circumstances of the alleged offending ought be taken into account

Catchwords:

PROFESSIONS- dental practitioner- whether successful respondent’s conduct disentitles it to award of costs- whether presumption in favour of award of costs to successful respondent should be displaced

Catchwords:

ADMINISTRATIVE LAW – administrative review of decision to refuse a contractor licence – nominated supervisor – whether special circumstances exist justifying the issue of a licence – meaning of special circumstances in s 33C(8) of the Home Building Act 1989 – no special circumstance found

Catchwords:

OCCUPATIONS – pharmacist – misconduct and discipline – unsatisfactory professional conduct – professional misconduct – improper conduct – breach of the NSW Opioid Treatment Community Pharmacy Dosing Point Protocol – breach of Poisons and Therapeutic Goods Regulation 2008 – failure to maintain daily entries in drug register – failure to perform mandatory six monthly stock checks – inappropriate dispensing of schedule 8 and schedule 4 drugs- protective not punitive – protection of public- risk mitigated- reprimand – conditions imposed on registration – Costs order made

Catchwords:

OCCUPATIONS - legal practitioners – solicitors – disciplinary proceedings – where respondent lawyer found guilty of professional misconduct for multiple breaches of the Legal Profession Uniform Law - where breaches were persistent and serious and demonstrated a pattern of conduct – finding lawyer unfit to practise – finding is likely indefinitely unfit to practise – removal of name from roll recommended - costs

Catchwords:

OCCUPATIONS- local government councillor- whether proceeding Tribunal previously determined to conduct pursuant to s 470A of the Local Government Act 1993 should be summarily dismissed- whether suspension order against councillor pursuant to s 440I of the Local Government Act against which councillor has appealed should be summarily set aside

Catchwords:

OCCUPATIONS – proceedings remitted from Supreme Court – redetermination of certain particulars of complaints – physiotherapist – misconduct and discipline – failure to provide prior explanation for treatment methods – physical examination of female pubic and pelvic anatomy – no informed consent – unsatisfactory professional conduct and professional misconduct

Catchwords:

PROFESSIONS - Medical Practitioner - whether s 82(1)(c)(i)(E) and s 82(1)(c)(i)(C) of the Health Practitioner Regulation National Law rendered offer of employment a mandatory requirement for limited registration for postgraduate training or supervised practice - whether appellant not a suitable person to hold registration having failed to progress towards general or specialist registration as required by registration standard - whether appellant not a suitable person to hold registration being unable to meet requirements of registration that person be able to competently and safely practise medicine pursuant to s 55(1)(g) of National Law - whether appellant unable to practise medicine competently and safely pursuant to s 55(1)(h) of the National Law

Catchwords:

OCCUPATIONS – application of lay associate for approval under s 121(1) of the Legal Professional Uniform Law – relevant considerations where the applicant pleaded guilty to a serious offence – whether conditions should accompany the Tribunal’s approval – application approved subject to conditions.

Catchwords:

PROFESSIONS AND TRADES – health care professional - physiotherapist – appropriate protective orders

Catchwords:

Occupations – legal practitioners – solicitors – disciplinary proceedings – Respondent found guilty of professional misconduct – Respondent engaged in a conflict of interest involving his own interests and those of clients – instrument of consent – Respondent having given up his practising certificate and undertaking not to apply for a fresh practising certificate – consideration of personal circumstances of Respondent – application for an order for confidentiality.

Catchwords:

HEALTH – non disclosure / non-publication order – application for reinstatement of a general practitioner after deregistration - application refused - costs

Catchwords:

CIVIL PROCEDURE – Interlocutory applications – application for interim orders staying a decision pending the determination of an administrative review

Catchwords:

OCCUPATIONS – Legal practitioners – administrative review application from Australian lawyer for review of decision of the Council of the Law Society of New South Wales relating to a practising certificate – statutory condition requiring two years of supervised legal practice – jurisdiction of NSW Civil and Administrative Tribunal (NCAT) not engaged – appeal and review rights under s 100 of the Legal Profession Uniform Law (NSW) – designated tribunal – NCAT not designated tribunal for application made – application dismissed for want of jurisdiction

Catchwords:

OCCUPATIONS – Legal practitioners – Solicitors – Complaints and discipline – Application for leave to withdraw disciplinary application under s 147 of the Legal Profession Uniform Law Application Act 2014 (NSW) – Practitioner previously removed from Roll of Australian lawyers – Utility – Termination of proceedings

Catchwords:

ADMINISTRATIVE REVIEW – conduct of a solicitor – whether the Respondent’s decision to caution the Applicant should be affirmed or set aside – whether a letter issued by the Applicant to a costs assessor was misleading or capable of misleading – whether the issue of the letter and its content constituted unsatisfactory professional conduct.

Catchwords:

Occupational Division – registered nurse - non-publication order – protective, not punitive – failure to maintain appropriate professional boundaries – engaging in intimate relationship with mental health patient – no longer registered – the Tribunal would have cancelled the registration – disqualification two years – costs order made

Catchwords:

OCCUPATION – Nursing – Application for disciplinary orders where practitioner found guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(c)(i) of the Health Practitioner Regulation National Law (NSW) in that the practitioner contravened a condition to which the practitioner’s registration is subject – practitioner found guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW) in that the practitioner engaged in more than one instance of unsatisfactory professional conduct.

Catchwords:

COSTS – gross sum costs order – whether appropriate to make a gross sum cost order –principles - gross sum cost order made

Catchwords:

OCCUPATIONS — Heath practitioners — Health Practitioner Regulation National Law (NSW) — unregistered pharmacist — disqualified for three years — application for reinstatement of registration at the end of the disqualification period — practitioner not yet fit to practise — 12 month non-review period ordered. COSTS — principles in reinstatement proceedings

Catchwords:

OCCUPATIONS- local government councillor- whether Tribunal has jurisdiction to grant interlocutory injunction restraining Secretary from exercising power to suspend councillor for misconduct- whether, if within jurisdiction, interlocutory injunctive relief sought by councillor should be granted

Catchwords:

Whether occasional member of Tribunal becoming registered as non-practising practitioner rendered him ineligible to continue on Tribunal; whether, if becoming registered as non-practising practitioner rendered practitioner ineligible to continue on Tribunal, provisions of Civil and Administrative Tribunal Act permitted him to - whether provisions of CAT Act inconsistent with provisions of National Law - whether Tribunal ceased to have jurisdiction if occasional member ineligible to continue on Tribunal upon becoming registered as non-practising health practitioner

Catchwords:

LICENSING – real estate – conviction for dishonesty offence – whether grounds to ignore – whether Applicant a fit and proper person to hold licence

Catchwords:

PRACTICE AND PROCEDURE – Question of law – Referral to the Supreme Court – Principles

Catchwords:

OCCUPATIONS – medical practitioners – admitted allegations of unsatisfactory professional conduct and professional misconduct – boundary violation by general practitioner with vulnerable female patient – appropriate protective orders having due regard to the evidence – order for cancellation - non-review period of 6 months

Catchwords:

OCCUPATION – Paramedicine – Application for disciplinary findings and orders where a complaint pursuant to s 144(a) of the Health Practitioner Regulation National Law (NSW) concerned the practitioner having been convicted of sexually assaulting a female paramedic colleague in the United Kingdom – practitioner found guilty of unsatisfactory professional conduct in that he failed to notify the National Board of his criminal charge or his criminal conviction as required under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW) – practitioner found guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW) in that he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration and engaged in more than one instance of unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner’s registration.

Catchwords:

OCCUPATIONS – legal practitioners – solicitor – misconduct and discipline – professional misconduct – protective orders – reprimand – fine

Catchwords:

PROFESSIONS AND TRADES – legal practitioner — professional misconduct or unprofessional conduct — alleged contravention of the Legal Profession Uniform Law (NSW) 2014 — what amounts to a substantial failure per s 297(1)(a) — public comment on current proceedings under rules 3.1, 5.1 and 28.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 — relevance of principles of sub judice contempt — prejudice to a fair trial or diminish public confidence in the administration of justice

Catchwords:

PROFESSIONS AND TRADES – health care professional – Nurse – criminal charge – theft of drugs – assault – failure to notify

Catchwords:

ADMINISTRATIVE LAW – administrative review of disciplinary decisions – applications to stay operation of decisions – factors relevant to stay

Catchwords:

HEALTH — professional registration and discipline — pharmacist — unauthorised repeat prescriptions — quantity of drugs dispensed — dispensing expired prescriptions — unsatisfactory professional conduct — professional misconduct

Catchwords:

ADMINISTRATIVE LAW — application for review of decision to refuse contractor licence — whether fit and proper person to hold the licence — impact of failure to declare previous criminal convictions — insufficient evidence of rehabilitation

Catchwords:

OCCUPATIONS – Medical Practitioner – Unsatisfactory Professional Conduct – Professional Misconduct – Protective Orders

Catchwords:

ADMINISTRATIVE LAW — Security Industry licence — whether applicant is a fit and proper person to hold a Class 2E security licence — whether contrary to the public interest

Catchwords:

ADMINISTRATIVE LAW – administrative review – real estate agent – conduct outside the course of carrying on a business as an agent or performing licensed functions – contravention of Rule 1, Schedule 1 of Property and Stock Agents Regulation 2022 under s 37 – where administrator seeks greater penalty than determined in the internal review process – fit and proper person to hold a licence

Catchwords:

Health – nursing - professional misconduct found at Stage 1 – where Practitioner engaged in a sexual act with a patient under his care in a hospital high dependency unit - Stage 2 finding disqualification for 5 years

Catchwords:

PROFESSIONS AND TRADES – health care professional – nurse – whether practitioner guilty of unsatisfactory professional conduct

Catchwords:

PROFESSIONS AND TRADES – health care professional – nurse – whether practitioner guilty of unsatisfactory professional conduct – whether practitioner guilty of professional misconduct – appropriate protective orders

Catchwords:

OCCUPATIONS – reinstatement application – whether Applicant has discharged onus of proof

Catchwords:

ADMINISTRATIVE LAW – Civil and Administrative Tribunal – application by medical practitioner for stay of order imposed by Medical Council of NSW suspending medical registration – stay sought pending an appeal raising points of law – whether the circumstances justified the exercise of emergency powers of suspension pursuant to s 150 of Health Practitioner Regulation National Law (NSW) - claim of denial of procedural fairness in the process leading to suspension – claim of failure to take into account relevant evidence –– claim the decision to suspend was legally unreasonable and not supported by the evidence -– whether balance of convenience warrants a grant of a stay pending the determination of the appeal from the suspension order – stay granted - existing conditions for practice to continue pending determination of the appeal STATUTORY CONSTRUCTION – construction of the term an “with respect to a point of law” within the meaning of s 159B of the Health Practitioner Regulation National Law (NSW)

Catchwords:

ADMINISTRATIVE REVIEW - Home Building Act 1989 - Design and Building Practitioners Act 2020 - disciplinary proceedings – disciplinary action –– improper conduct - penalties – quantification of penalty - protection of consumers

Catchwords:

PRACTICE AND PROCEDURE – Summary disposal application BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Improper conduct – show cause notice – whether notices given or served

Catchwords:

OCCUPATIONS — application of lay associate for approval under s 121 of the legal profession uniform law – relevant considerations where applicant pleaded guilty to serious offences – whether conditions should accompany the Tribunal’s approval – whether the relevant convictions are spent as provided for in the Criminal Records Act 1991 (NSW) – application granted subject to conditions

Catchwords:

LEGAL PROFESSION – disciplinary proceedings – person other than Australian legal practitioner – whether rules of evidence apply - unauthorised transfer of money from trust account to office account – unauthorised transfer of money from trust account to personal account – falsification of trust account ledger records – falsification of payroll records – disqualification for purposes of Legal Profession Uniform Law – indefinite disqualification

Catchwords:

Occupations – pharmacy – failing to meet fundamental obligations in respect of dispensing of medications – supply to self and family members – unsatisfactory professional conduct and professional misconduct

Catchwords:

PRACTICE AND PROCEDURE – application to direction Registrar to persons to produce documents - application to direction Registrar to persons to attend and give evidence

Catchwords:

OCCUPATIONS – Application for Summary Dismissal s 55 Civil and Administrative Tribunal Act 2013 (NSW) – Jurisdiction to hear Application not established – Other proceeding in same cause before the Tribunal and already listed for hearing – Potential for abuse of process

Catchwords:

HEALTH - professional registration and discipline - medical radiographer – conviction for an offence of sexual touching – failure to notify the National Board of relevant events – false statement as to criminal history in annual statement - whether constitutes unsatisfactory professional conduct - what protective action should be taken

Catchwords:

COSTS – costs where external appeal withdrawn – where Council removes conditions placed on appellant’s registration

Catchwords:

HEALTH PRACTITIONERS – Dental Surgeon – whether relief sought by appellant within jurisdiction of Tribunal – whether time should be extended to appeal against decisions of respondent – costs

Catchwords:

PRACTICE AND PROCEDURE – ancillary issues – jurisdiction – whether delegation of statutory functions of Veterinary Practitioners Board to complaints committee effective – whether requirements of s 49(2)(b) of Interpretation Act 1987 (NSW) met – scope of complaints – notification of further matters – asserted failures to comply with statutory procedures in Veterinary Practice Act 2003 (NSW) – effect of procedural errors (if established) on jurisdiction of NSW Civil and Administrative Tribunal to determine disciplinary proceedings

Catchwords:

OCCUPATIONS – pharmacists – misconduct and discipline – unsatisfactory professional conduct - professional misconduct – reprimand – costs

Catchwords:

OCCUPATIONS – pharmacists – misconduct and discipline – unsatisfactory professional conduct - professional misconduct – reprimand – costs

Catchwords:

OCCUPATIONS – pharmacists – misconduct and discipline – unsatisfactory professional conduct - professional misconduct – reprimand – costs

Catchwords:

ADMINISTRATIVE LAW – Motor Dealers and Repairers – tradesperson’s certificate – repairer’s licence - “fit and proper person” – relevance of convictions for assault – significance of history of drug addiction

Catchwords:

PROFESSIONS AND TRADES – health care professional - psychologist – appropriate protective orders

Catchwords:

PRACTICE AND PROCEDURE – external appeal of disciplinary order (order) made against a Councillor under section 440I(2)(g) of the Local Government Act 1993 (NSW) – application for a stay of the order – factors relevant to whether stay granted – whether arguable case – balance of convenience

Catchwords:

HEALTH – registration of a suspended pharmacist – seriousness of alleged poor professional conduct – admission that such conduct amounts to professional misconduct – cancellation of registration – non-review period - costs

Catchwords:

Occupational – practice and procedure – power to make amendments to existing orders. Consideration of s 121 of the Legal Profession Uniform Law 2014 (NSW) and of ss 36 and 38 of the Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

Administrative Law –– tradesperson’s certificate – cancellation of licence – disqualification - fit and proper person – public interest - convictions for dishonesty

Catchwords:

ADMINISTATIVE LAW- Home Building – Application to vary contractor licence to the category of general building work – qualification requirements - verification of experience -death of supervisor

Catchwords:

OCCUPATIONS — complaint made to NSW Legal Services Commissioner about lawyer and law practice– complaint closed by Commissioner – administrative review application brought by complainant purportedly under Legal Profession Uniform Law (NSW) – jurisdiction of NSW Civil and Administrative Tribunal (NCAT) not engaged

Catchwords:

OCCUPATIONS — complaints made to NSW Legal Services Commissioner about lawyer – complaints closed by Commissioner – administrative review application brought by complainant purportedly under Legal Profession Uniform Law (NSW) – jurisdiction of NSW Civil and Administrative Tribunal (NCAT) not engaged

Catchwords:

LOCAL GOVERNMENT – Councillors – referral of proceedings under the Local Government Act 1993

Catchwords:

OCCUPATIONS – occupational therapist – misconduct and discipline – whether unfit in the public interests to practice – convicted of a criminal offence – unsatisfactory professional conduct – failure to notify National Boad within seven days of charges and convictions – protective not punitive – cancellation – non-review period – prohibited to practice as a health practitioner for specified period – Costs order made

Catchwords:

PROFESSIONS AND TRADES – Whether Applicant is fit and proper for the purposes of the Home Building Act 1989 (NSW) - Dishonesty

Catchwords:

HEALTH – professional registration and discipline – professional misconduct found – stage 2 hearing – protective orders – costs

Catchwords:

ADMINISTRATIVE REVIEW - Home Building Act 1989 - Disciplinary proceedings – statutory warranties – improper conduct – evidence relied upon to establish defects by building inspector – defences – actual knowledge – influence

Catchwords:

OCCUPATION – Nursing – Application for disciplinary findings and orders where practitioner found guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(c) of the Health Practitioner Regulation National Law (NSW) in that the practitioner contravened a condition to which the practitioner’s registration is subject – practitioner found guilty of professional misconduct within the meaning of s 139E of the Health Practitioner Regulation National Law (NSW).

Catchwords:

Professions – Medical Practitioners – where practitioner found guilty of unsatisfactory professional conduct and professional misconduct by differently constituted tribunal at stage 1 hearing – where practitioner did not give evidence at stage 2 hearing – inferences which could be drawn from such failure – whether practitioner’s registration should be cancelled – whether non-review period should be ordered – duration of any non-review period ordered

Catchwords:

OCCUPATIONS – legal practitioners – solicitors – disciplinary proceedings – whether conduct amounts to unsatisfactory professional conduct or professional misconduct – protective orders – whether order should be made recommending removal from the local roll of lawyers

Catchwords:

ADMINISTRATIVE REVIEW – Medical Practitioner– Interim Prohibition Order

Catchwords:

OCCUPATIONS — Medical practitioners — findings of unsatisfactory professional conduct and professional misconduct — application for interim suspension before final disciplinary proceedings — health and safety and public interest

Catchwords:

OCCUPATIONS – registration of health practitioners – pharmacist – deregistered for professional misconduct – application for reinstatement – reinstatement recommended

Catchwords:

OCCUPATION — health practitioner — conduct below standard reasonably expected of a practitioner — failure to maintain adequate records — practitioner guilty of unsatisfactory professional conduct — practitioner guilty of professional misconduct

Catchwords:

Administrative Law –Application for certificate of registration as an assistant real estate agent - Fit and proper person.

Catchwords:

COSTS

Catchwords:

PRACTICE AND PROCEDURE – Non-disclosure and non-publication orders – Whether non-disclosure orders should be amended or revoked

Catchwords:

EVIDENCE – Admissibility – where a patient of a chiropractor has given evidence and been cross-examined – where Supreme Court has set aside Tribunal’s orders and remitted the matter for rehearing according to law – whether transcript and audio recording of Patient A’s evidence is admissible on the rehearing

Catchwords:

OCCUPATIONS – medical practitioner – registration of health practitioners – Stage 1 findings – inappropriate prescribing of restricted Schedule 8 and Schedule 4D medications – inadequate medical records – findings of unsatisfactory professional conduct – dismissal of unproven allegation of professional misconduct – Stage 2 hearing to proceed on a date to be fixed

Catchwords:

LOCAL GOVERNMENT — Councillors — misconduct — breach of Code of Conduct — validity of decision — appropriate orders

Catchwords:

HEALTH - professional registration and discipline - nurse - where practitioner is otherwise not a suitable person to hold registration as a nurse and has an impairment - what protective action should be taken -

Catchwords:

Chiropractor, professional misconduct established, late amendments, failure to establish each complaint alleged.

Catchwords:

ADMINISTRATIVE LAW — home building — administrative review of refusal of individual contractor licence under Home Building Act 1989 (NSW) — whether NSW Civil and Administrative Tribunal has jurisdiction to review decision made after remittal under s 63(3)(d) of Administrative Decisions Review Act 1997 (NSW) PRACTICE AND PROCEDURE — legal basis for power to dismiss proceedings for want of jurisdiction

Catchwords:

HEALTH — professional registration and discipline — registered nurse — practitioner pleaded guilty and convicted of criminal offence - whether circumstances of the offence render the practitioner unfit in the public interest to practise – appropriate protective orders – cancellation of registration – 12 month bar on reapplication COSTS – discretion – fairness of recovery of some costs

Catchwords:

OCCUPATIONS – reinstatement application – whether Applicant has discharged onus of proof

Catchwords:

OCCUPATIONS — Legal practitioners — Barristers — Unsatisfactory professional conduct — Professional misconduct — scope of complaint

Catchwords:

ADMINISTRATIVE LAW – review of decision by external decision-maker, decision to cancel strata management agent’s licence – fine – company and individual licences and disqualify licence holder under the Property and Stock Agents Act 2002

Catchwords:

Administrative Law – home building — application for contractor licence — general building work — application of instrument — experience requirements — “wide range of building construction work”

Catchwords:

OCCUPATION — medical practitioners — specialist plastic surgeon — appropriate protective orders where guilty of professional misconduct — conditions imposed on licence — costs

Catchwords:

OCCUPATIONS – medical practitioner – applicant invites Tribunal to terminate inquiry – respondent acquitted of criminal charges related to complaint – complaint withdrawn – whether it is in the public interest for the inquiry to continue

Catchwords:

Occupations – pharmacist – proprietor of numerous pharmacies – lack of oversight and inadequate policies and procedures – significantly below required standards – unsatisfactory professional conduct – professional misconduct

Catchwords:

LICENSING – security licence – whether Applicant convicted of a prescribed offence - whether revocation mandatory

Catchwords:

PROFESSIONS AND TRADES: - legal practitioner - --professional disciplinary proceedings - professional misconduct - causing, without reasonable excuse, deficiencies in trust account and statutory deposit account - disbursing trust moneys without the direction of the person(s) for whom the money was held - mixing trust money with other money without the authority of Council of the Law Society of NSW - failing to give written notice of irregularities in trust account

Catchwords:

Professions — Legal Practitioner — whether recommendation that practitioner’s name be removed from the roll appropriate in all the circumstances — whether practitioner unlikely to be fit and proper to remain on the roll for foreseeable future — whether Tribunal empowered to make orders with respect to issuing of practising certificates by Law Society of New South Wales — whether appropriate for Tribunal to make such recommendations if empowered to do so

Catchwords:

PRACTICE AND PROCEDURE – Variation of orders by consent – Orders under the Health Practitioner Regulation National Law (NSW)

Catchwords:

LICENSING – security industry – licence revocation – registration under mutual recognition legislation – false information – public interest

Catchwords:

COSTS

Catchwords:

OCCUPATIONS – Medical Practitioner – sexual harassment of colleagues – protective orders – cancellation of registration

Catchwords:

PROFESSIONAL DISCIPLINE – Medical Practitioner – Where the registration of the Practitioner was cancelled with a non-review period of one year following gravely serious findings of misconduct perpetrated by the Practitioner against Patient A – Whether a reinstatement order should be made – Where a reinstatement order is made subject to conditions – Where an order for costs is made in favour of the Commission

Catchwords:

ADMINISTRATIVE LAW – administrative review of disciplinary decisions – applications to stay operation of decisions – factors relevant to stay

Catchwords:

Administrative Law – Certificate of Registration - Assistant Agent - disqualified person – dishonesty offence - time since committed - whether trivial - fit and proper person

Catchwords:

HOME BUILDING – application for administrative review - disciplinary action – breach of statutory warranties - improper conduct – extension of time – stay

Catchwords:

OCCUPATIONS – registration of health practitioners – nurse – Stage 1 and Stage 2 hearings combined – findings of unsatisfactory professional conduct and professional misconduct – unauthorised restraint of a vulnerable elderly patient by nurse assigned to provide one-on-one care in hospital intensive care unit – restraint contrary to applicable guidelines and protocols – bed sheet tied down tightly across chest of patient – restraining sheet concealed from view – senior staff members and handover shift not informed patient was restrained – absence of proper records – orders for protection of the health and safety of the public – consequential order for costs

Catchwords:

OCCUPATIONS – administrative review application from Australian lawyer for review of decision of the Council of the Law Society of New South Wales to refuse to grant applicant a practising certificate – application for stay of decision of the Council – jurisdiction of NSW Civil and Administrative Tribunal (NCAT) not engaged – appeal and review rights under s 101 of the Legal Profession Uniform Law (NSW) – designated tribunal – NCAT not designated tribunal for applications made – no source of jurisdiction for NCAT to decide applications under ss 28 or 29 of the Civil and Administrative Tribunal Act 2013 (NSW) – applications dismissed for want of jurisdiction

Catchwords:

CIVIL PROCEDURE — application by third party to re-open concluded proceedings to adduce evidence — false and misleading information — whether to join a party to the proceedings — whether joinder is proper or necessary — non-publication orders - access to inspect court file

Catchwords:

HEALTH – medical practitioner – misconduct and discipline – unsatisfactory professional conduct – professional misconduct – breach of conditions on registration – cancellation of registration

Catchwords:

HEALTH – medical practitioner – misconduct and discipline – unsatisfactory professional conduct – professional misconduct – breach of conditions on registration

Catchwords:

OCCUPATIONS — Chinese medicine practitioner—Termination of Inquiry

Catchwords:

HEALTH – Nurse – Criminal Convictions – Failure to comply with conditions imposed on registration – Unsatisfactory Professional Conduct – Professional Misconduct – Not a suitable person for registration – Protective Orders – Prohibition Order

Catchwords:

Practice and Procedure – disciplinary action against councillor – stay of decision under appeal – external appeal – factors relevant to whether stay granted – whether arguable case – balance of convenience

Catchwords:

OCCUPATIONS – Medical Practitioners – Unsatisfactory Professional Conduct – Professional misconduct

Catchwords:

PROFESSIONS AND TRADES – health care professional - psychologist – where complaints of unsatisfactory professional conduct and professional misconduct are not admitted

Catchwords:

OCCUPATIONS – nurses – misconduct and discipline – unsatisfactory professional conduct – professional misconduct – repeated sexual harassment of other staff and co-workers – appropriate protective orders COSTS – discretionary factors

Catchwords:

OCCUPATIONS – legal practitioners – solicitors – misconduct and discipline – whether solicitor “engaged in legal practice” under Legal Profession Uniform Law – administrative review of decision that solicitor is not a “fit and proper person” to hold a practising certificate

Catchwords:

OCCUPATIONS – Architect – alteration of declarations of design practitioners without knowledge or consent – whether unsatisfactory professional conduct – whether professional misconduct

Catchwords:

OCCUPATION — dental practitioners — practitioner convicted of a criminal offence — Practitioner guilty of unsatisfactory professional conduct — practitioner guilty of professional misconduct — cancellation of registration — costs

Catchwords:

HEALTH – Medical Practitioner – professional registration and discipline – where medical practitioner convicted of criminal offence – practitioner unfit in the public interest to practise – practitioner unsuitable to hold registration as a medical practitioner

Catchwords:

Administrative Law – home building — application for individual contractor licence — general building work — application of instrument — experience requirements — “wide range of building construction work”

Catchwords:

HEALTH – Nurse - Criminal convictions - Circumstances of the offence - Unfit in the public interest - Failure to give written notice of the criminal charges and convictions under section 130 of the National Law - Unsatisfactory Professional Conduct - Protective Orders

Catchwords:

HEALTH — registered nurse — professional registration and discipline — performed procedure not certified to perform — failed to assist to resuscitate — whether unsatisfactory professional conduct — whether professional misconduct

Catchwords:

OCCUPATION – health practitioner – conditions imposed on licence – variation of orders

Catchwords:

PROFESSIONAL DISCIPLINE – Medical Practitioner – Appeal under s 159(1)(a) of the National Law against a suspension of registration made at a s 150 hearing on 24 March 2024 – Where it is appropriate for the protection of the health or safety of any person or persons or it is otherwise in the public interest to continue the suspension of the Practitioner’s registration

Catchwords:

OCCUPATIONS — Nurses —Termination of Inquiry

Catchwords:

PROFESSIONS AND TRADES - health care professionals- medical practitioners - where practitioner breached doctor-patient boundaries and knowingly prescribed drugs for patient which were not for patient’s use - whether practitioner guilty of professional misconduct

Catchwords:

OCCUPATONS – medical practitioners – misconduct and discipline – unprofessional conduct and professional misconduct – protective orders

Catchwords:

OCCUPATIONS – registration of health practitioners – medical practitioner – dismissal of application by deregistered general practitioner seeking reinstatement order following expiry of 12 month non-review period – deregistration followed findings of unsatisfactory professional conduct and professional misconduct made at previous Stage 1 and Stage 2 hearings – review of uncontested baseline facts on application for reinstatement – applicant’s incrementally successive violations of the boundary between doctor and patient including non-consensual violation of sexual boundary despite resistance from patient – exploitation of vulnerable patient with significant history of mental health issues –– serious breaches of trust including deceptive prescribing conduct – character flaws – onus on applicant to produce reliably clear sound and solid evidence of appropriate reflection and effective remedial engagement with the detail of prior offending conduct which led to deregistration; PSEUDONYMS – vulnerable complainant patient entitled to anonymity by non-publication order and allocation of litigation pseudonym – applicant seeking reinstatement living in an overseas country where homosexuality is unlawful – applicant’s personal safety at serious risk if his homosexuality becomes known in that country – applicant entitled to allocation of non-publication order and litigation pseudonym – prohibition on identification of applicant’s country of origin and current place of residence; EXPIRY OF NON-REVIEW PERIOD – application for reregistration following expiry of non-review period – expiry not an automatic trigger for reinstatement – consideration of paramount interest of public health and safety takes precedence over consideration of empathy for applicant’s personal safety concerns and applicant’s aspirations to return to practice in Australia; EXPERT EVIDENCE – reliability of expert psychiatric and psychological evidence – non-compliance with requirements of NCAT Procedural Direction 3 – limited weight given to non-compliant expert evidence - disparity of detail between evidence adduced at hearing compared to obliquely glossed version within assumptions provided to psychiatric expert by applicant’s medical defence organisation – benignly understated rendition of underlying facts gloss over the extent and seriousness of applicant’s offending conduct: Paric v John Holland Constructions Pty Ltd [1985] HCA 58 – non-compliant expert evidence unpersuasive; SUFFICIENCY OF EVIDENCE – evidence adduced by applicant insufficient to justify an order recommending reinstatement at this time