ADMINISTRATIVE LAW – administrative review – real estate agent – where Commissioner for Fair Trading cancelled the applicant’s real estate licence, declared the applicant to be a disqualified person for the purposes of the Property and Stock Agents Act 2002 (NSW) for a period of two years and six months; and disqualified the applicant from being involved in the direction, management or conduct of the business of a licensee for a period of two years and six months COSTS of separate application to refer questions of law to the Supreme Court of NSW – special circumstances – no question of principle
ADMINISTRATIVE REVIEW – driver’s authority – bus driver - good repute – fit and proper person – s 11 Passenger Transport Act 1990 (NSW) – s 12 Passenger Transport Act 1990 (NSW)
OCCUPATIONS – nursing in aged care – Stage II – improper conduct towards resident in facility – unsatisfactory professional conduct – professional misconduct – necessary protective orders – costs to follow event
Judgment of
H J Dixon SC, Senior Member
S Smiltnieks, Senior Member
A Cummins, Senior Member
F Taylor, General Member
OCCUPATIONS — practice and procedure — where service has not been effected on the respondent — whether it is in the public interest to terminate the disciplinary inquiry — whether an inquiry terminated before determining merits could be re-enlivened
PRACTICE AND PROCEDURE — Tribunal procedure — private hearing in part under s 49(2) of NCAT Act — principles of open justice — where councillor is subject of disciplinary proceedings yet to be determined — non-disclosure and non-publication orders under s 64 of the NCAT Act — whether desirable to make orders — mere assertion of damage to reputation or embarrassment an insufficient basis — protection of publication restrictions made in another forum
OCCUPATIONS – medical practitioners – professional registration and discipline – unsatisfactory professional conduct – professional misconduct – prescription of restricted substances – whether conduct that demonstrates knowledge, skill or judgment possessed by practitioner is significantly below standard reasonably expected
Judgment of
Coleman SC ADCJ, Principal Member [1]
Dr C Badam, Senior Member at [267]
Dr C Newberry, Senior Member at [267]
S Lovrovich, General Member at [267]
OCCUPATION – medical practitioners – specialist plastic surgeon – guilty of unsatisfactory professional conduct – guilty of professional misconduct - s139(a) of the National Law – competency - sufficient knowledge and skill to practice as a specialist plastic surgeon
Judgment of
Hon M Le Poer Trench ADCJ, Principal Member
Dr S Cowap, Senior Member
Dr J Newton, Senior Member
M Christiansen, General Member
ADMINISTRATIVE LAW — Home building — application to vary licence — individual contractor licence — application of Instrument — qualification requirements
HEALTH — professional registration and discipline — registered nurse — unethical or improper conduct — inappropriate professional boundaries — inappropriate personal relationship with patient — whether unsatisfactory professional conduct — whether professional misconduct
Judgment of
E Bishop SC, Senior Member
J Harrington, Senior Member
A Bizzotto, Senior Member
J Sillince, General Member
Occupational Division – paramedicine – non-publication order – protective, not punitive - whether unfit in the public interests to practice – convicted of a criminal offence – no longer registered – suicidal ideation - the Tribunal would have cancelled the registration – disqualification four years – costs submissions sought
Judgment of
R L Bailey, Senior Member
S Kelly, Senior Member
W Hughes, Senior Member
M Ficarra, General Member
COSTS - review of the conditions attaching to his registration pursuant to ss 150A or 150C of the National Law - Council’s changing of position with respect to the conditions which were appropriate to be attached to the Practitioner’s registration – not wholly successful – costs follow the event – objective of a costs order is to compensate the party in receipt of such order, rather than to punish the party against whom it is made - each party acted reasonably - neither party was overwhelmingly successful.
OCCUPATIONS — Heath practitioners — Health Practitioner Regulation National Law (NSW) — Registered nurse — application for provisional registration — Performance Assessment undertaken — Whether process unfair — Practitioner found not to be suitable — Whether conditions appropriate — Provisional registration refused. COSTS — General rule that costs follow the event — no disentitling conduct.
Judgment of
J Redfern PSM, Senior Member
T Azzopardi, Senior Member
Dr L Gregory, Senior Member
J Barker, General Member
ADMINISTRATIVE LAW – administrative review of decision to refuse an owner-builder permit for the construction of a dual occupancy – whether special circumstances exist
HEALTH PRACTITONER — unsatisfactory professional conduct — whether s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW) requires the practitioner to knowingly fail to comply with statutory notification obligations HEALTH PRACTITONER — protective orders – whether practitioner ought be permitted to practice subject to supervision and regular drug testing — appropriate level of supervision
Judgment of
A Britton, Deputy President
K Carter, Senior Member
M Cross, Senior Member
J Sillince, General Member
OCCUPATIONS – pharmacy – external appeal against suspension of registration by Pharmacy Council of New South Wales – whether PBS fraud within scope of s 150 of the Health Practitioner Regulation National Law (NSW) - no points of law made out
ADMINISTRATIVE LAW — REVIEW OF DECISION BY EXTERNAL DECISION-MAKER — decision to cancel contractor licence and disqualify a licence holder pursuant to section 62 of the Home Building Act 1989 (NSW) —improper conduct — fit and proper person
HEALTH — professional registration and discipline — occupational therapist — unethical and improper conduct — inappropriate professional boundaries — inappropriate personal relationships with patient — whether unsatisfactory professional conduct — whether professional misconduct
Judgment of
E Bishop SC, Senior Member
N Francis, Senior Member
D Wilson, Senior Member
J Kearney, General Member
OCCUPATIONS – pharmacists – suspension of registration under s 150 of the Health Practitioner Regulation National Law – external appeal under s 159 – nature of external appeal – appeal allowed – appropriate conditions on registration
Judgment of
R C Titterton OAM, Senior Member
P Mcasey, Senior Member
P Sinclair AM, Senior Member
M Maher, General Member
Occupations-pharmacist-claims against pharmaceutical benefit schemes without dispensing relevant medications-improper and unethical conduct-unsatisfactory professional conduct-professional misconduct-suspension of registration with conditions imposed at expiry of suspension.
Judgment of
H J Dixon SC, Senior Member
P Murney, Senior Member
A Lee, Senior Member
J Sillince, General Member
HEALTH – professional registration – registered dentist – conviction – unsatisfactory professional conduct - the practitioner's fitness to practice dentistry - appropriate protective orders – prohibition orders – costs
Judgment of
T Simon, Principal Member
J Ironside, Senior Member,
Dr A Lang, Senior Member
S Lovrovich, General Member
HEALTH – professional registration and discipline – formerly registered Chinese Medicine practitioner – unsatisfactory professional conduct – improper or unethical conduct – professional misconduct – cancellation of registration
Judgment of
S Dunn, Senior Member
J Lee, Senior Member
E Pun, Senior Member
A Gray, General Member
HEALTH – professional registration and discipline – nurse – unsatisfactory professional conduct – professional misconduct – was the conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent’s registration - appropriate protective orders
Judgment of
S Dunn, Senior Member
J Haines, Senior Member
R Shaban, Senior Member
A Gray, General Member
ADMINISTRATIVE LAW – administrative review - Home Building – Applications for contractor licences – individual and company - employee – remuneration – not a subcontractor
ADMINISTRATIVE LAW - Security Industry Act 1997 (NSW) – application for security industry licence – mandatory refusal – whether conviction for perjury under s 703 of the Criminal Code 2002 (ACT) is a conviction for an “offence involving dishonesty or fraud” – the offence of perjury under s 703 of the Criminal Code 2002 (ACT) does not necessarily require proof dishonesty or fraud. WORDS AND PHRASES - “an offence involving fraud, dishonesty or stealing”
OCCUPATIONS – registration of medical practitioners – reinstatement application by deregistered former general practitioner - review of previous findings of unsatisfactory professional conduct and professional misconduct – order for reinstatement subject to conditions for protection of the health and safety of the public
Judgment of
Acting Judge Levy SC, Principal Member
Dr H Chriss, Senior Member
Dr L Taoube, Senior Member
M Christensen, General Member
OCCUPATIONS – Nursing – Application for disciplinary findings and orders where practitioner found guilty of unsatisfactory professional conduct – Practitioner formally reprimanded – Conditions imposed on the practitioner’s registration.
Judgment of
A Starke, Senior Member
A Cummins, Senior Member
N Story, Senior Member
B Seth, General Member
HEALTH — registered nurse — allegations of sleeping during night shifts — secondary employment — whether unsatisfactory professional conduct — whether professional misconduct
Judgment of
E Bishop SC, Senior Member
T Coombs, Senior Member
R North, Senior Member
Dr R Leontini, General Member
COSTS — clause 13 of Sch 5D to the National Law — general rule that costs follow the event — where applicant was largely successful — no disentitling conduct — hearing dispensed under s 50 of the NCAT Act.
OCCUPATIONS - registration of medical practitioners – application by deregistered general practitioner following findings of unsatisfactory professional conduct and professional misconduct – practitioner’s behaviour was found to have crossed the professional boundary between doctor and patient - application for re-registration following expiry of preclusion period – whether former practitioner’s insight into the events which led to misconduct and deregistration has been sufficiently addressed by appropriate remedial steps – whether public health and safety adequately protected if reinstated – order for reinstatement
Judgment of
Acting Judge Levy SC, Principal Member
Dr S Patel, Senior Member
Dr D King, Senior Member
F Taylor, General Member
ADMINISTRATIVE REVIEW – Home Building – Application for contractor licence – bankruptcy – whether Secretary’s discretion should be exercised within three year bar
HEALTH – Pharmacist - fraudulent PBS claims – Criminal Convictions - Unsatisfactory Professional Conduct - Professional Misconduct - Protective Orders - Refusal to make a Prohibition Order
Judgment of
S McIllhatton, Senior Member
M Cross, Senior Member
K Carter, Senior Member
B Seth, General Member
HEALTH — registered health practitioner — whether conduct found to amount to unsatisfactory professional conduct — appropriate form of protective orders — prohibition order
Judgment of
C Mulvey, Senior Member
K Douglas, Senior Member
C Sippel, Senior Member
F Taylor, General Member
OCCUPATIONS – Other occupations – Point to Point transport providers – Authorisation to provide a taxi service – Discretionary nature of decision – Public safety considerations
OCCUPATIONS — person holding himself out as legal practitioner — person engaging in unqualified legal practice — findings that conduct constitutes grounds for indefinite disqualification on two separate grounds under s 119(2) of Legal Profession Uniform Law (NSW) — disqualification order justified — disqualification order made — non-publication orders made
Judgment of
Armstrong J, President
A Suthers, Principal Member
LICENCING – security licence – mandatory revocation – whether convicted of a prescribed offence involving assault of any description – summary dismissal – arguable case
OCCUPATIONS – nursing in aged care – improper conduct towards resident in facility – attempted collusion during investigation of conduct – unsatisfactory professional conduct – professional misconduct – Stage II hearing to follow
Judgment of
H J Dixon SC, Senior Member
S Smiltnieks, Senior Member
A Cummins, Senior Member
F Taylor, General Member
HEALTH – Pharmacist - misappropriation of medication from a hospital – mislead a regulatory authority - Unsatisfactory Professional Conduct - Professional Misconduct
Judgment of
S McIllhatton, Senior Member
E Anderson, Senior Member
T Melocco, Senior Member
B Seth, General Member
OCCUPATIONS — nursing — misconduct and discipline — improper and unethical conduct towards younger female colleagues in the workplace — criminal conviction for online chatting — unsatisfactory professional conduct — professional misconduct — prohibition order — apportionment of costs ordered
Judgment of
H J Dixon SC, Senior Member
A Adams, Senior Member
M Hagarty, Senior Member
M Ficarra, General Member
ADMINISTRATIVE LAW — Tribunal's source of power to make non-suppression and non-disclosure orders in health disciplinary proceedings — Whether a non-disclosure and non-publication order should be made — Concurrent criminal proceedings HEALTH — General medical practitioner — Suspension of registration under s 150 of the National Law — Appeal under s 159B of the National Law HEALTH — Application for a stay of the suspension decision — Whether there is an arguable appeal — Appeals “with respect to a point of law” under s 159B of the National Law — Whether the Delegates applied the correct statutory test — Whether the suspension of registration by the Delegates was a discretionary task — Whether the Delegates took into account irrelevant considerations or failed to consider a mandatory consideration
OCCUPATIONS – psychology – misconduct and discipline – academic cheating – non-compliance with role of Supervisor of interns – improper and unethical conduct – unsatisfactory professional conduct – professional misconduct – cancellation of registration
Judgment of
H J Dixon SC, Senior Member
M Stojanovska, Senior Member
J Szyndler, Senior Member
B Seth, General Member
HEALTH — professional registration and discipline — registered nurse — impairment — unethical or improper conduct — inappropriate professional boundaries — inappropriate personal relationships with patients — whether unsatisfactory professional conduct — whether professional misconduct
Judgment of
E Bishop SC, Senior Member
E Moore, Senior Member
D Sutton, Senior Member
J Houen, General Member
COSTS — cl 13 of Sch 5D of the National Law — general rule that costs follow the event — disentitling conduct — where a party is not entirely successful — each party bears their own costs — hearing dispensed under s 50 of the NCAT Act — costs discretion
ADMINISTRATIVE REVIEW- misconduct of a solicitor- review of a decision of the Council of the Law Society of NSW to cancel the Applicant’s practising certificate and to preclude the Applicant from applying for a practising certificate for a period of five years- Applicant having been convicted of perverting the course of justice contrary to s319 of the Crimes Act 1900 (NSW) – whether conduct aberrative- Tribunal declares Applicant to be a fit and proper person to hold a practising certificate subject to conditions – practising certificate to continue to be suspended until the term of a community corrections order has been served- afterwards the practising certificate to be subject to the conditions that the Applicant is to practise under supervision as an employee, is not practise as a sole practitioner and is to undertake courses on legal ethics.
Judgment of
S Westgarth, Deputy President
R C Titterton OAM, Senior Member
OCCUPATIONS – legal practitioners – solicitors – disciplinary proceedings – where respondent lawyer found guilty of professional misconduct for consistent and repeated breaches of rr 33.1 and 4.1.2 of Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – appropriate protective orders – continued pattern of behaviour in sending of discourteous or otherwise inappropriate correspondence in the course of disciplinary proceedings before Tribunal – finding that lawyer currently unfit to practise – finding that lawyer likely indefinitely unfit to practise – roll removal recommended – costs order made
Judgment of
Armstrong J, President
A Suthers, Principal Member
B Thomson, General Member
OCCUPATIONS- Legal Profession- whether barrister agreed to provide legal services pursuant to alleged consultancy agreement whilst not holding practising certificate- whether barrister received money from client for provision of legal services whilst not holding practising certificate- whether barrister guilty of unsatisfactory professional conduct- whether barrister guilty of professional misconduct
Judgment of
Coleman SC ADCJ, Principal Member
E Bishop SC, Senior Member
L Porter, General Member
ADMINISTRATIVE LAW - review of decision by external decision-maker –decision of delegate to cancel strata management company and individual licences and disqualify both licence holders under the Property and Stock Agents Act 2002 PRACTICE AND PROCEDURE - interlocutory order - interim decision – stay order sought
CIVIL PROCEDURE — suppression and non-publication orders — relationship between the power to make suppression and non-publication orders under the Health Practitioner Regulation National Law and the power to make those orders under the Civil and Administrative Tribunal Act 2013 (NSW); applicability of decision in Walton v Momot [1997] NSWCA 334
OCCUPATIONS – Nursing – Application for disciplinary findings and orders where practitioner convicted of two offences of Dishonestly obtain property by deception contrary to s 192E(1)(a) of the Crimes Act 1900 (NSW) and one offence of Persons Unlawfully in possession of property, contrary to s 527C(1)(a) of the Crimes Act 1900 (NSW ) and sentenced to 18 months imprisonment to be served by way of Intensive Correction Order expiring on 13 October 2024 – practitioner found to have engaged in unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) in that the practitioner engaged in improper and unethical conduct related to the practice of nursing – practitioner found guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW) in that the practitioner 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.
Judgment of
A Starke, Senior Member
K Austin, Senior Member
L Campbell, Senior Member
A Gray, General Member
OCCUPATIONS — registration of medical practitioners — application for re-registration after expiry of disqualification period — male general practitioner disqualified from registration following findings of unsatisfactory professional conduct and professional misconduct — violation of professional boundary between doctor and patient — sexual relationship with a vulnerable female patient — whether previous Tribunal findings on 24 December 2021 expressing concern over former registrant’s insight into past misconduct and his mental health issues have been clearly and sufficiently addressed and displaced by appropriate remedial steps — assessment of likelihood of reoffending — whether public health and safety would be adequately protected if the practitioner were to be reinstated at this time notwithstanding the previous Tribunal findings on 24 December 2021 — reinstatement subject to practice and health conditions
Judgment of
Acting Judge Levy SC, Principal Member
Dr J Fogarty, Senior Member
Dr H Haikal-Muhktar, Senior Member
M Christenssen, General Member
OCCUPATIONS — medical practitioners — practice conditions imposed on registration — appeal of decision pursuant to s 159 of the Health Practitioner Regulation National Law (NSW) — variation of practice conditions imposed — whether surgeries performed were below the standard reasonably required — whether post-operative assessments were below the standard reasonably required
Judgment of
Coleman SC ADCJ, Principal Member
Dr R Barnett, Senior Member
Dr M Sheridan, Senior Member
R Wellington, General Member
HEALTH — Professional registration and discipline — professional misconduct — unsatisfactory professional conduct — failure to maintain professional boundaries with patient — providing false and misleading information — record keeping failure
Judgment of
Seiden SC DCJ, Deputy President
Dr R Boland, Senior Member
Dr D Shirley, Senior Member
R Wellington, General Member
HEALTH — professional registration — registered nurse — conviction — unsatisfactory professional conduct — the practitioner's fitness to practice nursing — appropriate protective orders — prohibition orders — costs
Judgment of
T Simon, Principal Member
M Gorman, Senior Member
T Coombs, Senior Member
F Taylor, General Member
ADMINISTRATIVE REVIEW – drivers’ authority – bus driver - good repute – fit and proper person – s 11 Passenger Transport Act 1990 (NSW) – s 12 Passenger Transport Act 1990 (NSW)
OCCUPATIONS — solicitor misconduct — professional misconduct and/or unsatisfactory professional conduct — consideration of ss 10, 334, 335 and0 371 of the Legal Profession Uniform Law — failure to cooperate and thereby obstruct a manager of a law practice — participating in the affairs of a law practice — practising without a current practising certificate or professional indemnity insurance — noncompliance with obligations concerning the stamping of a transfer of real property — failure to comply with a notice issued under s 371 of the Uniform Law — appropriate protective orders — costs.
Judgment of
S Westgarth, Deputy President
M Sindler, Senior Member
L Porter, General Member
HEALTH PRACTITONER — practitioner admits to unsatisfactory professional conduct under ss 139(1)(l), 109(1)(c) and 130 of the Health Practitioner Regulation National Law (NSW) and professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW) HEALTH PRACTITONER — appropriate form of disciplinary orders under Subdiv 6, Div 3 of Pt 8 of the National Law (NSW)
Judgment of
A Britton, Deputy President
M Smith, Senior Member
I Mosher, Senior Member
B Seth, General Member
OCCUPATIONS — Misconduct and discipline — Nursing — where service has not been effected on the respondent — where order for substituted service sought under the rules — where residential address unknown
OCCUPATIONS — Nurses — Misconduct and discipline — where application for disciplinary findings and orders cannot be personally served on practitioner in disciplinary proceedings — where order for substituted service sought — whether personal service required — where applicant seeks an order that the application be taken to have been served
OCCUPATIONS – pharmacists – misconduct and discipline – unsatisfactory professional conduct and professional misconduct – reprimand – conditions on registration
Judgment of
H J Dixon SC, Senior Member
H Dowling, Senior Member
J Ludington, Senior Member
B Seth, General Member
ADMINISTRATIVE LAW — home building — application for individual contractor licence — general building work — application of instrument — experience requirements — “wide range of building construction work”
OCCUPATIONS — registration of medical practitioners — appeal by suspended general medical practitioner pursuant to s 159 of the National Law — appellant’s late application to withdraw and dismiss his appeal — appellant conceded cognitive impairment — grant of leave to withdraw appeal — order that appeal be dismissed COSTS — consideration of appropriate order for costs on withdrawal and dismissal of appeal — no order as to costs
ADMINISTRATIVE LAW – motor dealers licence – motor dealers certificate - administrative review of decision to cancel licence - disqualification from holding a licence – death of employee – fit and proper person – carrying on business - moral integrity and rectitude of character - seriousness or otherwise of particular conduct – imposition of condition
ADMINISTRATIVE REVIEW – interim prohibition order – whether order validly made – whether applicant provides a health service – whether administration of Ayahuasca a health service ADMINISTRATIVE REVIEW – application for stay – stay refused.
ADMINISTRATIVE LAW – administrative review - Home Building – application for licence – plumbing, gasfitting and related work - experience requirements - requirements of applicable Instrument – requirements of form – fit and proper person
ADMINISTRATIVE REVIEW – drivers’ authority – bus driver - good repute – fit and proper person – s 11 Passenger Transport Act 1990 (NSW) – s 12 Passenger Transport Act 1990 (NSW)
HEALTH — professional registration and discipline psychologist - sexual relationship with client – other failures to adhere to appropriate professional boundaries - failure to maintain adequate clinical records – misleading the Psychology Council of New South Wales and the Health Care Complaints Commission - whether constitutes unsatisfactory professional conduct and professional misconduct - what protective orders should be made
Judgment of
G Blake AM SC, Senior Member
F Denton, Senior Member
R Lander, Senior Member
R Kusuma, General Member
HEALTH PRACTITIONERS - medical practitioners - whether imposition of conditions in lieu of cancellation or suspension of registration of medical practitioner sufficiently protects public health and safety - nature and extent of conditions necessary to protect public health and safety - whether reprimand adequately reflects seriousness of practitioner’s proven misconduct and upholds public confidence in medical profession and Tribunal’s disapproval of professional misconduct
Judgment of
Coleman SC ADCJ, Principal Member
Dr H Mukhtar, Senior Member
Dr D King, Senior Member
Mr R Wellington, General Member
OCCUPATIONS — Heath practitioners — Misconduct and discipline — Disciplinary proceedings – unsatisfactory professional conduct – professional misconduct – not a suitable person to be registered – financial dealings with patients – power imbalance -
Judgment of
ADCJ Hennessy, Deputy President
Dr L Cotterell, Senior Member
Dr J Livesey, Senior Member
D Telford, General Member
OCCUPATIONS — medical practitioners — misconduct and discipline — application for reinstatement of registration following cancellation — contravention of a critical compliance condition — cancellation
Judgment of
The Hon M Le Poer Trench ADCJ, Principal Member
Dr H Haikal-Mukhtar, Senior Member
Dr C Newberry, Senior Member
D Telford, General Member
TRADES AND PROFESSION –– dentist –– Health Practitioner Regulation National Law –– unsatisfactory professional conduct –– professional misconduct –– reprimand ordered –– conditions placed on registration
Judgment of
R C Titterton OAM, Senior Member
Dr G Labour, Senior Member
Dr N Xouris, Senior Member
D Telford, General Member
HEALTH – unsatisfactory professional conduct – professional boundaries – inadequate recordkeeping – stage 1 hearing – professional misconduct as a possible ground for deregistration – non-publication order
Judgment of
The Hon T Sheahan ADCJ, Principal Member
Dr K Smartt, Senior Member
Dr G Yeo, Senior Member
R Wellington, General Member
OCCUPATIONS — Heath practitioners — Health Practitioner Regulation National Law (NSW) – where presiding member completed a 5 year term of office and was not re-appointed – whether presiding member has vacated office before the Tribunal has completed an inquiry – whether proceedings are terminated – whether the Tribunal should be reconstituted
OCCUPATIONS — dentists — misconduct and discipline — disciplinary proceedings — “missing” clinical records — failure to make appropriate proximate entries in clinical record — failure to perform appropriate assessment prior to issuing prescription — prescribing falling outside the scope of dentistry — unsatisfactory professional conduct — whether professional misconduct
Judgment of
Coleman SC ADCJ, Principal Member
Dr K Campbell, Senior Member
Dr A Selby, Senior Member
S Lovrovich, General Member
ADMINISTRATIVE LAW – administrative review of decision to refuse an owner-builder permit for the construction of a dual occupancy – whether special circumstances exist – special circumstances found
TRADES AND PROFESSION –– Nursing –– Health Practitioner Regulation National Law –– unsatisfactory professional conduct –– underlying conduct admitted –– reprimand ordered
Judgment of
R C Titterton OAM, Senior Member
Prof E M Chiarella AM, Senior Member
D Armitage, Senior Member
Dr R Leontini, General Member
ADMINISTRATIVE LAW – administrative review - occupation - qualifications and registration - professional engineer and design practitioner registration – alternative registration pathway requirements – whether experience is at least or equivalent to prescribed requirements
HEALTH — professional registration and discipline — unregistered nurse — criminal finding for an offence —whether circumstances of the offence render the practitioner unfit in the public interest to practise — unsatisfactory professional conduct — failure to notify of charges and criminal finding —scope of disciplinary powers — costs
Judgment of
S McIllhatton, Senior Member
C Sippel, Senior Member
H Kirkwood, Senior Member
J Barker, General Member
PROFESSIONS AND TRADES – Refusal of qualified supervisor certificate – disconnection and reconnection of fixed electrical equipment – administrative review of decision – scope of work.
OCCUPATIONS — registration of medical practitioners — withdrawal of application for reinstatement order — no hearing on the merits COSTS — consideration of appropriate cost order following withdrawal of application — no order as to costs
Judgment of
Acting Judge Levy SC, Principal Member
Dr J Aitken, Senior Member
Dr S Patel, Senior Member
R Kusuma, General Member
OCCUPATIONS — pharmacists — misconduct and discipline — failure to exercise independent judgment in respect of dispensing of Scheduled drugs — unsatisfactory professional conduct — professional misconduct
Judgment of
H J Dixon SC, Senior Member
A Aylott, Senior Member
D North OAM, Senior Member
J Sillince, General Member
OCCUPATIONS – Nursing – Application for disciplinary findings and orders where practitioner convicted of forging prescriptions including prescriptions of a restricted substance and drugs of addiction – practitioner found to have failed to comply with a condition imposed on her registration and failed to comply with a critical impairment condition imposed on her registration – practitioner found to have engaged in unsatisfactory professional conduct and professional misconduct – practitioner found to have an impairment that detrimentally affects or is likely to detrimentally affect her capacity to practise the profession of nursing contrary to s 144(d) of the Health Practitioner Regulation National Law (NSW) – practitioner found to be not competent within the meaning of s 139(a) of the Health Practitioner Regulation National Law (NSW) as she lacks the mental capacity to practise as a nurse as a result of her impairment.
Judgment of
A Starke, Senior Member
A Cummins, Senior Member
M Keehan, Senior Member
M Christensen, General Member
HEALTH — registered health practitioner — whether conduct found to amount to unsatisfactory professional conduct — appropriate form of protective orders — condition on registration
Judgment of
C Mulvey, Senior Member
S Smiltnieks, Senior Member
E Nicholls, Senior Member
F Taylor, General Member
ADMINISTRATIVE LAW – review of disciplinary findings of Council of the Law Society of New South Wales – disciplinary decisions – duty to avoid conflict when acting for more than one party to a transaction – need for informed consent of the client
Judgment of
A Suthers, Principal Member
M Sindler, Senior Member
ADMINISTRATIVE LAW — Home building — application to vary licence — application of Instrument — experience requirements — ‘wide range of building construction work’ – ‘remuneration’ – ‘relevant application form’
OCCUPATIONS – legal practitioners – solicitors – disciplinary proceedings – whether solicitor assisting as son-in-law and not as a solicitor – whether solicitor acting under power of attorney and not as a solicitor – whether conduct occurred “in the course of legal practice” – whether conduct occurred in “representing a client” OCCUPATIONS – legal practitioners – solicitors –where solicitor repeatedly emails representatives of the client of another solicitor – where conduct is consistent and repeated breach of r 33.1 of Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – solicitor found guilty of professional misconduct OCCUPATIONS – legal practitioners – solicitors –where solicitor’s correspondence to another solicitor involves use of profanities, threats and unsubstantiated allegations – whether discourteous – where conduct is consistent and repeated breach of r 4.1.2 of Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) – solicitor found guilty of professional misconduct WORDS AND PHRASES – “in the course of legal practice” and “representing a client” – rr 4.1.2 and 33.1 of Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Judgment of
Armstrong J, President
A Suthers, Principal Member
B Thomson, General Member
PROFESSIONS AND TRADES — appeals from decision of Physiotherapy Council — whether circumstances are urgent — whether appellant poses an unacceptable risk to the health and safety of any person
Judgment of
Dr J Lucy, Senior Member
S Hong, Senior Member
Dr D Shirley, Senior Member
B Seth, General Member
HEALTH PRACTITONER — unsatisfactory professional conduct — s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) — evaluating whether conduct is “significantly below” the relevant standard HEALTH PRACTITONER — unsatisfactory professional conduct — whether s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW) requires the practitioner to knowingly fail to comply with statutory notification obligations HEALTH PRACTITONER — professional misconduct — s 139E of the Health Practitioner Regulation National Law (NSW) — whether conduct found to be unsatisfactory professional conduct is of a “sufficiently serious nature” to justify an order for suspension or cancellation of practitioner’s registration EVIDENCE — assessment of competing evidence — assessment of reliability of evidence — demeanour evidence
Judgment of
A Britton, Deputy President
Dr A Ware, Senior Member
Dr R Engel, Senior Member
Dr R Leontini, General Member
CIVIL PROCEDURE – dismissal as lacking in substance – where appeal, even if successful, will have no practical effect COSTS – where proceedings under the Health Practitioner Regulation National Law (NSW) are dismissed as lacking in substance
ADMINISTRATIVE LAW — Home building — application for individual contractor licence — application of Instrument — experience requirements — ‘wide range of building construction work’
ADMINISTRATIVE REVIEW — Home Building — application for variation of contractor licence — qualification and experience requirements set out in instrument issued by the Respondent — whether the applicant meets the requirements of the Instrument
STATUTORY INTERPRETATION — where non-presiding Tribunal member vacates office — meaning of phrase “before an inquiry or appeal is completed or a decision is made in respect of an inquiry or appeal” in s 165C of the Health Practitioner Regulation National Law (NSW)
ADMINISTRATIVE LAW — review of decision — refused to be a qualified supervisor certificate under Home Building Act 1989 — whether correct and preferable decision — whether applicant took all reasonable steps to avoid liquidation or administration — whether fit and proper person
HEALTH — professional registration and discipline — registered nurse — impairment — breach of conditions of registration — whether unsatisfactory professional conduct — whether professional misconduct COSTS — principles applying to awarding costs under Health Practitioner Regulation National Law (NSW)
Judgment of
E Bishop SC, Senior Member
S Daly, Senior Member
H Kirkwood, Senior Member
J Barker, General Member
HEALTH — professional registration and discipline — practitioner — convictions for offences — failure to notify Australian Health Practitioner Regulation Agency of prescribed matters — failure to submit to random urine drug testings in accordance with conditions on registration — whether constitutes professional misconduct — what protective orders should be made — whether practitioner’s mental health state determinable — costs
Judgment of
The Hon G Watts ADCJ, Principal Member
Dr S McCarthy AO, Senior Member
Dr G Smith, Senior Member
D Telford, General Member
HEALTH — professional registration and discipline — paramedic — convictions for offences — failure to notify the Paramedicine Board of Australia of prescribed matters — whether constitutes unsatisfactory professional conduct — what protective orders should be made
Judgment of
G Blake AM SC, Senior Member
L McDermott, Senior Member
L Shabella, Senior Member
R Leontini, General Member
PROFESSIONS AND TRADES — health care professionals — nurses — where practitioner seeks termination of disciplinary proceedings — whether it is “not in the public interest” for the inquiry to continue
HEALTH — professional registration and discipline — enrolled nurse — practitioner pleaded guilty and convicted of criminal offences — whether circumstances of the offences render the practitioner unfit in the public interest to practise — appropriate protective orders
Judgment of
S Dunn, Senior Member
K Douglas, Senior Member
Dr S Schulz-Robinson, Senior Member
F Taylor, General Member
HEALTH — professional registration and discipline — chiropractor — where chiropractor is guilty of professional misconduct — what protective orders should be made
Judgment of
G Blake AM SC, Senior Member
Dr R Engel, Senior Member
Dr D Kostur, Senior Member
R Kusuma, General Member
OCCUPATIONS — legal practitioners — misconduct — breach of Code of Conduct — disciplinary proceedings — whether Tribunal has jurisdiction to determine Applicant’s application — whether the Applicant’s application should be dismissed under s 55 of the Civil & Administrative Tribunal Act 2013 (NSW)
HEALTH – professional registration and discipline –where Pharmacy Council suspended practitioner’s registration – application for stay of suspension pending hearing of an appeal under s 159B of the Health Practitioner Regulation National Law (NSW)
OCCUPATIONS – 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
Judgment of
H J Dixon SC, Senior Member
J Sulentic, Senior Member
S Mackie, Senior Member
J Houen, General Member
PROFESSIONAL DISCIPLINE – Health Practitioner Regulation National Law – Medical Practitioner – Unsatisfactory Professional Conduct – Professional Misconduct – Appropriate protective orders
Judgment of
Craig QC ADCJ, Principal Member
Dr R Higgins, Senior Member
Dr S Lertsumitkul, Senior Member
J Houen, General Member
HEALTH — professional registration and discipline — where medical practitioner convicted of criminal offence — whether practitioner otherwise guilty of unsatisfactory professional conduct and/or professional misconduct — whether practitioner no longer registered should be disqualified from being registered — whether practitioner should be disqualified from providing health services during disqualification period — whether practitioner should pay Commission’s costs
Judgment of
Coleman SC ADCJ, Principal Member
Dr J Aitken, Senior Member
Dr C Newberry, Senior member
J Houen, General Member
HEALTH — chiropractor — failure to report charge — sexual abuse — driving under influence OCCUPATIONS — practitioner — misconduct and discipline — professional misconduct — criminal offence — admission of guilt — improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession
Judgment of
O Shub, Senior Member
Dr H Jenkins, Senior Member
Dr A Downie, Senior Member
J Sillince, General Member
ADMINISTRATIVE LAW - qualified supervisor certificate in the category of disconnection and reconnection of fixed electrical equipment (appliances) licence - administrative review of decision to refuse licence - scope of work within the Instrument - qualification required
Medical Practitioner — psychiatrist — professional misconduct — sexual relationship with a patient — failure to maintain appropriate professional boundaries — practitioner no longer registered — if Practitioner were registered Tribunal would have cancelled her registration for 2 years — impairment
Judgment of
The Hon A Ainslie-Wallace ADCJ, Principal Member
Prof A Demirkol, Senior Member
Dr E O’Brien, Senior Member
S Lovrovich, General Member
TRADES AND PROFESSIONS – chiropractor - inappropriate sexual words and touching of patient - whether constitutes unsatisfactory professional conduct and professional misconduct
Judgment of
G Blake AM SC, Senior Member
Dr R Engel, Senior Member (Professional)
Dr D Kostur, Senior Member (Professional)
R Kusuma, General Member
HEALTH — professional registration and discipline — nurse — where practitioner engaged in unsatisfactory professional conduct and has an impairment — what protective action should be taken — conditions imposed on the respondent’s registration including critical compliance conditions
Judgment of
G Blake AM SC, Senior Member
M Cooke, Senior Member
E Gambrell-Ball, Senior Member
M Ficarra OAM, General Member
ADMINISTRATIVE LAW – Health Practitioner National Law 2014 (NSW). Where medical practitioner concedes her conduct in treatment of patients and failure to keep proper records constitutes unsatisfactory professional conduct and professional misconduct. Where practitioner disputes some particulars in the complaint. Whether or not practitioner’s registration should be cancelled or suspended and or conditions imposed on her registration.
Judgment of
Boland J ADCJ (Deputy President)
Dr M Higgins (Professional Member)
Dr M Jarrett (Professional Member)
Ms M Kelly (Lay Member)
HEALTH — professional registration and discipline — pharmacist — where pharmacist is guilty of unsatisfactory professional conduct — what protective action should be taken
Judgment of
G Blake AM SC, Senior Member
M Cross, Senior Member
H Dowling, Senior Member
B Seth, General Member
OCCUPATIONS — medical practitioners — misconduct and discipline — conduct of a sexual nature — unprofessional conduct — professional misconduct — non-publication order — costs
Judgment of
The Hon G Watts ADCJ, Principal Member
Dr G Yeo, Senior Member
Dr S Cowap, Senior Member
Ms D Telford, General Member
HEALTH — non-publication order — application for reinstatement of a general practitioner after deregistration for professional misconduct — refused — impairment — costs
Judgment of
The Hon T Sheahan ADCJ, Principal Member
Dr E Summers, Senior Member
Dr D King, Senior Member
R Wellington, General Member
HEALTH — professional registration and discipline — dental practitioner — possession of cocaine — use of cocaine — breach of conditions of registration — dilute drug urine samples — pattern of behaviour raises concern about compliance with drug testing policy — allegations of unsatisfactory professional conduct — allegations of professional misconduct
Judgment of
E Bishop SC, Senior Member
Dr J Ironside, Senior Member
Dr K Campbell, Senior Member
J Sillince, General Member
Administrative Law - Individual contractor licence – General building work - Whether evidence establishes two years relevant experience - Whether evidence establishes a wide range of building construction work experience - whether experience relevant industry experience
ADMINISTRATIVE LAW – Home Building Act - administrative review of decision to refuse application for owner builder permit – special circumstances - occupancy
OCCUPATIONS- pharmacists – misconduct and discipline – attempted importation of non-exempt therapeutic goods – dishonesty – unsatisfactory professional conduct and professional misconduct
Judgment of
H J Dixon SC, Senior Member
H Dowling, Senior Member
J Ludington, Senior Member
B Seth, General Member
ADMINISTRATIVE LAW – administrative review – licensing – variation of contractor licence- qualification requirements under s33F of the Home Building Act 1989
TRADES AND PROFESSIONS – health practitioner – physiotherapist – whether practitioner engaged in unsatisfactory professional conduct – whether practitioner engaged in professional misconduct – appropriate protective orders
Judgment of
Dr J Lucy, Senior Member
S Mackie, Senior Member
Dr A Gupta, Senior Member
Dr R Leontini, General Member
OCCUPATIONS – psychology practitioners – misconduct and discipline – Finding of unsatisfactory professional conduct and professional misconduct – appropriate protective orders – registration suspended – practice conditions imposed
Judgment of
The Hon Le Poer Trench ADCJ, Principal Member
B Sheridan, Senior Member
Dr A White, Senior Member
M Maher, General Member
REVIEW OF DECISION BY EXTERNAL DECISION-MAKER — decision to cancel registration as a certifiers pursuant to section 48 of the Building Professionals Certifiers Act 2018 (NSW) PRACTICE AND PROCEDURE — INTERLOCUTORY ORDER – application for stay— factors relevant to exercise of the power to stay decision under section 60 of the Administrative Decisions Review Act 1997 (NSW)
ADMINISTRATIVE LAW – application of lay associate for approval under s 121 of the Legal Profession Uniform Law – relevant considerations where applicant pleaded guilty to serious offences – confidentiality application
Judgment of
S Westgarth, Deputy President
A Suthers, Principal Member
ADMINISTRATIVE REVIEW – Registration under the Design and Building Practitioners Act 2020 (NSW) – Cancellation of deemed registration – whether the Applicant is a suitable person
ADMINISTRATIVE REVIEW – Registered certifier – Whether disciplinary grounds established – Whether decisions to cancel applicant’s registration and disqualify him from registration for 10 years are the correct and preferable decisions
Health – Nursing – Unsatisfactory Professional Conduct – Professional Misconduct – where practitioner engaged in a sexual act with a patient under his care under a hospital high dependency unit – findings at Stage 1 to proceed to Stage 2 consideration
Judgment of
R Lethbridge SC, Senior Member
C Sippel, Senior Member
S Smiltnieks, Senior Member
J Barker, General Member
PROFESSIONS AND TRADES – dentistry – where complaints of unsatisfactory professional conduct and professional misconduct admitted – appropriate protective order
Judgment of
R C Titterton OAM, Senior Member
Dr M Stimpson, Senior Member
Dr G Traynor, Senior Member
J Sillince, General Member
PROFESSIONS AND TRADES- HEALTH PRACTITIONERS- where practitioner appealed against Medical Board’s refusal of application for specialist registration- whether practitioner suitable person to be registered as specialist anaesthetist- whether practitioner fit and proper person to be registered as specialist anaesthetist- whether practitioner unable to practise as specialist anaesthetist competently and safely
Judgment of
Coleman SC ADCJ, Principal Member
Dr M Chu, Senior Member
Dr J Saunders, Senior Member
Mr M Christensen, General Member
OCCUPATIONS – Chinese Medicine practitioner – misconduct and discipline – criminal findings – failure by the practitioner to notify the National Board – professional misconduct
Judgment of
H J Dixon SC, Senior Member
E Pun, Senior Member
J Lee, Senior Member
R Kusuma, General Member
STAY – administrative review – pending criminal proceeding - just and convenient that ordinary rights of administrative review should not be interfered with – public interest – secrecy provisions – s58 Administrative Decisions Review Act 1997
OCCUPATIONS – Medical Practitioners – Misconduct and discipline – Unsatisfactory Professional Conduct – Professional misconduct - improper and unethical conduct – impairment – Not competent
Judgment of
The Hon Ainslie-Wallace ADCJ, Principal Member
Dr S Patel, Senior Member
Dr P Young, Senior Member
J Barker, General Member
HOME BUILDING ACT – Whether evidence establishes two years relevant experience the majority of which is in the last 10 years- Whether evidence establishes a wide range of building construction work experience – whether experience relevant industry experience – Individual contractor licence – General building work – whether evidence that work performed can be verified by witnesses who are not supervisors – Supervision level of experience required for licence – Comfortable satisfaction that licence holder can perform the work
HEALTH – professional registration and discipline – where appeal against Medical Board imposed condition “not to practise” on registration – where the respondent is no longer a registered health practitioner – where appeal lacks substance and is futile – application to dismiss appeal.
COSTS – where Health Care Complaints Commission failed to prove majority of allegations of unsatisfactory professional conduct – where Health Care Complaints Commission failed to prove professional misconduct – what is “the event” and who is the successful party – whether Tribunal should depart from the general rule that costs follow “the event”
Judgment of
Hennessy ADCJ, Deputy President
Dr J Fogarty, Senior Member
Dr S Cowap, Senior Member
D Telford, General Member
COSTS — party/party — application for review of decision to cancel registration of dental practitioner — application dismissed and costs reserved — held respondent entitled to costs order
TRADES AND PROFESSIONS – application for review of decision to cancel registration of dental practitioner-principles on review-held applicant continues to suffer from an impairment-application dismissed-costs reserved
Judgment of
The Hon F Marks, Principal Member
Dr G Labour, Senior Member
Dr K Campbell, Senior Member
M Maher, General Member
PROFESSIONS AND TRADES — health practitioner — whether contravention of a condition of a health practitioner’s registration amounts to professional misconduct PROFESSIONS AND TRADES — health practitioner — whether practitioner has an impairment — whether practitioner is not competent to practise
Judgment of
A Britton, Principal Member
Dr T Boland, Senior Member
Dr J Ironside, Senior Member
Dr C Berglund, General Member
HEALTH – professional registration and discipline – pharmacist – supply of drugs to unknown persons without a prescription outside of pharmacy setting under threats of violence – unsatisfactory professional conduct – professional misconduct – appropriate protective orders.
Judgment of
S Dunn, Senior Member
M Cross, Senior Member
T Melocco, Senior Member
J Sillince, General Member