Recent decisions for Civil and Administrative Tribunal (Occupational Division)

Catchwords:

PROFESSIONAL DISCIPLINE – Legal Profession – Barrister – Professional misconduct and unsatisfactory professional conduct – Instrument of Consent and Agreed Statement of Facts

Catchwords:

HEALTH — professional registration and discipline — Complaints — Chinese medicine practitioner — findings of fact —unsatisfactory professional conduct — professional misconduct

Catchwords:

ADMINISTRATIVE LAW — Home building — application for renewal of individual contractor licence — application within 10 years of applicant being a director of a Chapter 5 body corporate — s 33B Home Building Act 1989 — s 33C Home Building Act 1989

Catchwords:

LICENSING – Security licence – fit and proper person - multiple very serious offences – released from incarceration years ago – no charges since – public interest

Catchwords:

ADMINISTRATIVE REVIEW – application for renewal of supervisor certificate – administration and liquidation of company of which the Applicant was a director – whether he took all reasonable steps to avoid the appointment of a liquidator – whether he was a fit and proper person to hold a supervisor certificate

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:

ADMINISTRATIVE LAW – administrative review – contractor licence – painter - fit and proper person

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:

ADMINISTRATIVE LAW – tow truck operators licence and tow truck drivers certificate – grounds for disciplinary action - fit and proper person – public interest

Catchwords:

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

Catchwords:

HEALTH - professional registration and discipline - professional misconduct found - stage 2 hearing - protective orders - reprimand - additional conditions imposed - non-publication order - costs

Catchwords:

OCCUPATIONS — Health — Pharmacist — Drugs, poisons and therapeutic goods — Therapeutic goods — Licences — Professional registration and discipline — Complaints — Professional misconduct — Registration — Unsatisfactory professional conduct

Catchwords:

OCCUPATIONS — Pharmacist — Health — Drugs, poisons and therapeutic goods — Therapeutic goods — Licences — Professional registration and discipline — Complaints — Professional misconduct — Registration — Unsatisfactory professional conduct

Catchwords:

OCCUPATIONS — Health — Pharmacist — Drugs, poisons and therapeutic goods — Therapeutic goods — Licences — Professional registration and discipline — Complaints — Professional misconduct — Registration — Unsatisfactory professional conduct

Catchwords:

STAY – administrative review of revocation of licence - stay refused – factors relevant to a stay

Catchwords:

ADMINISTRATIVE LAW – Real Estate – Certificate of Registration – fit and proper person

Catchwords:

Administrative Law – refusal of building contractor licence application – director of company in liquidation – whether Applicant took all reasonable steps to avoid external administration – risk to the public if licence granted

Catchwords:

OCCUPATIONS – legal practitioners – solicitors – disciplinary proceedings – adjournment application dismissed – no compelling reasons to delay determination of Stage 2 of proceedings involving making of protective orders and awarding of costs

Catchwords:

OCCUPATIONS – nurses – misconduct and discipline – criminal conviction of serious criminal offences – failure by the practitioner to notify the National Board where regulatory agencies were aware of the charges immediately after being laid – need for non-review period

Catchwords:

OCCUPATIONS — legal practitioners – solicitors – disciplinary proceedings – temporary stay of proceedings until finalisation of roll removal proceedings in Court of Appeal

Catchwords:

ADMINISTRATIVE LAW – administrative review – revocation of security licence – interlocutory application – administrator’s obligation to file material with the Tribunal – 29(3) Security Industry Act 1997 – meaning of criminal intelligence report or other criminal information – restrictions on disclosure – what orders are necessary to prevent disclosure

Catchwords:

OCCUPATIONS – Medical Practitioners – Misconduct and Discipline – Unsatisfactory Professional Conduct – Professional Misconduct

Catchwords:

EVIDENCE — course of evidence — re-opening case – non-publication of evidence

Catchwords:

OCCUPATIONAL – administrative review of decision to refuse contractor licence – electrician – liquidation – insolvency – failure to establish no potential risk

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 – administrative review – contractor licence – carpenter – applicant on parole – fit and proper person.

Catchwords:

HEALTH – Medical Practitioner – professional misconduct – unsatisfactory professional conduct – Protective Orders

Catchwords:

PROFESSIONAL DISCIPLINE – Chiropractor – Where the practitioner has been convicted of serious criminal offences perpetrated during consultations with a patient and is currently imprisoned for those offences – Where the registration of the practitioner is cancelled with a non-review period of five years – Whether the non-review period should date from the suspension of the practitioner’s registration – Whether the practitioner failed to give written notice of the criminal charges pursuant to section 130 of the National Law – discussion as to the appropriate entity to which that notice needed to be given.

Catchwords:

OCCUPATIONS – nurses – misconduct and discipline –whether practitioner guilty of unsatisfactory professional conduct and professional misconduct – cancellation of registration or suspension with conditions

Catchwords:

OCCUPATIONS — health practitioner — chiropractor and Chinese medicine practitioner — finding of professional misconduct — appropriate protective orders COSTS — principles governing the exercise of the discretion to award costs under Health Practitioner Regulation National Law (NSW) — whether applicant had engaged in “disentitling conduct” COSTS –– principles governing apportionment of costs –– multiple issues in proceedings — applicant partly successful PRACTICE AND PROCEDURE — principles governing the discretion to make a non-publication order in respect of name of respondent health practitioner under cl 7(1) of Sch 5D to the National Law

Catchwords:

Administrative Law – licensing – real estate agent – fit and proper person

Catchwords:

OCCUPATION – Pharmacy – Application for disciplinary findings and orders where practitioner found guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) in that the practitioner’s practice fell significantly below the standard expected of a practitioner of an equivalent level of training or experience – 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 cancellation of the practitioner’s registration.

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:

NURSING – Boundaries – Dementia Patient – inappropriate sexual behaviour

Catchwords:

LOCAL GOVERNMENT — Councillors — alleged misconduct of a Councillor under the Local Government Act 1993 — failure to declare non-pecuniary interest — breach of applicable Codes of Conduct — appropriateness of reprimand

Catchwords:

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)

Catchwords:

OCCUPATIONS – Misconduct and discipline – Chinese medicine practitioner – where application for disciplinary findings and orders cannot be personally served on practitioner in disciplinary proceedings – order for substituted service sought – valid service in accordance with the NCAT Rules

Catchwords:

Administrative Law – review of disciplinary findings of the Professional Conduct Committee of the Council of the Law Society of New South Wales –money lent by solicitor to client-conflict of interest- breach of fiduciary duty- unsatisfactory professional conduct-appropriate protective orders-reprimand or caution.

Catchwords:

PRACTICE AND PROCEDURE – application for summary dismissal – challenge to expertise of expert

Catchwords:

ADMINISTRATIVE REVIEW – Registered certifier –Whether decisions to cancel applicant’s registration and disqualify him from registration for 6 years are the correct and preferable decisions

Catchwords:

ADMINISTRATIVE LAW Other occupations – Point to Point transport providers – Authorisation to provide a limousine taxi service – Discretionary nature of decision – Public safety considerations – whether unacceptable risk to public safety

Catchwords:

ADMINISTRATIVE REVIEW – trades – licensing of particular trades – security industry – master security licence – revocation – suitability to hold master security licence – fit and proper person – public interest – provision of false and misleading records to regulators

Catchwords:

OCCUPATIONS — Legal practitioners — Barristers — Professional misconduct – Unsatisfactory Professional conduct – sexual harassment – breaches of Rules – protective orders

Catchwords:

ADMINISTRATIVE LAW — home building — administrative review of refusal of application for individual contractor licence — effect of requirements imposed by notice under s 20(2) of Home Building Act 1989 (NSW) — experience obtained while employee — meaning of “employee”

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:

OCCUPATIONS — physiotherapy — unsatisfactory professional conduct and professional misconduct — where physiotherapist provides cellulite reduction treatment to patient

Catchwords:

ADMINISTRATIVE LAW – administrative review - Home Building – plumbing work - cancellation of contractor licence - disciplinary action

Catchwords:

Occupations- Medical practitioners- misconduct and discipline-where the alteration of medical records by the practitioner was on an industrial scale and was perpetrated by him during a period in which he had received multiple warnings and was ultimately under investigation for the very behaviour that he continued to undertake- where the practitioner is guilty of unsatisfactory professional conduct and professional misconduct- Where the practitioner’s registration is cancelled with a non-review period of three years.

Catchwords:

HEALTH — professional registration and discipline — nurse — appropriate protective orders — admitted conduct — guilty of unsatisfactory professional conduct with regard to secondary employment and failure to act to reduce fatigue COSTS — apportionment of costs — whether failure to establish main part of complaint militates against the Commission recovering its costs

Catchwords:

OCCUPATIONS – Health practitioners – misconduct and discipline – finding of professional misconduct – appropriate protective orders

Catchwords:

ADMINISTRATIVE REVIEW – interim prohibition order – whether order validly made

Catchwords:

Professional discipline-medical practitioner-where the practitioner has engaged in improper and unethical conduct relating to the practise of medicine - Where the practitioner has breached professional boundaries by engaging in a close personal and intimate relationship with two patients - Where the practitioner become one of those patients enduring guardian-Where the practitioner continuing to treat those patients whilst in those relationships - Where the practitioner both altered the patient’s medical records and failed to records treatment that had been provided - Where the practitioner told the applicant he had provided it with all relevant medical records in his possession for the two patients when he knew that to be false - Where the practitioner is guilty of professional misconduct - Had the practitioner been currently registered the protective order made would have been the cancellation of the practitioner’s registration for a period of three years

Catchwords:

HEALTH — professional registration — registered nurse — conviction — unsatisfactory professional conduct — the practitioner's fitness to practice nursing — appropriate protective orders — prohibition orders — costs

Catchwords:

Occupations – Registration of medical practitioners – reinstatement – whether the practitioner has developed insight – application granted with conditions

Catchwords:

COSTS – no question of principle

Catchwords:

PRACTICE AND PROCEDURE — summons — set aside an item scheduled in the summons — general principles for the grant or set aside of a summons — legitimate forensic purpose — abuse of process — apparent relevance COSTS — limited costs jurisdiction — s 60(3) special circumstances

Catchwords:

Paramedic – conviction – possessing, disseminating child abuse material and intentionally distributing intimate images without consent; registration cancelled for 5 years; prohibition from providing health services for the same period.

Catchwords:

HEALTH – medical practitioner – misconduct and discipline – unsatisfactory professional conduct – professional misconduct

Catchwords:

HEALTH — professional registration and discipline — dental practitioner — appropriate protective orders where guilty of professional misconduct regard non-compliance with Dental Council Policy

Catchwords:

Administrative Law – licensing – real estate agent – costs

Catchwords:

HEALTH – professional regulation and discipline – medical practitioner – criminal conviction – defrauding of Medicare – registration surrendered – unsatisfactory professional conduct – futility of proceedings – costs

Catchwords:

OCCUPATIONS – Dental Practitioner – Stage 2 hearing – misconduct and discipline – unsatisfactory professional conduct – professional misconduct – permitting unregistered practitioner to treat patient – undermining regulatory system – need for specific and general deterrence

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 – whether satisfied the person poses a substantial risk to the health of members of the public – appropriate protective orders

Catchwords:

ADMINSTRATIVE REVIEW – unregistered health practitioner – support worker – caused injury – training and experience - appropriate protective orders – conditions – costs

Catchwords:

Administrative Law – administrative review – tow truck licence – public interest – driving record

Catchwords:

ADMINISTRATIVE LAW - licence under Security Industry Act 1997 (NSW) - revocation of licence - use of medicinal cannabis - offence ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Catchwords:

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

Catchwords:

OCCUPATIONS — medical practitioner — application for reinstatement — whether the practitioner has developed insight — reinstatement application granted with conditions

Catchwords:

HEALTH - Medical Practitioner – professional misconduct - unsatisfactory professional conduct

Catchwords:

Administrative Law – home building – disciplinary action – whether company failed, without reasonable cause, to comply with a rectification order - improper conduct – applicable penalty

Catchwords:

ADMINISTRATIVE LAW – administrative review – security licence – revocation - public interest

Catchwords:

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

Catchwords:

COSTS – where Health Care Complaints Commission successful – Respondent did not appear but did not admit Complaints

Catchwords:

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)

Catchwords:

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

Catchwords:

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

Catchwords:

HEALTH – medical practitioner – misconduct and discipline – unsatisfactory professional conduct – professional misconduct

Catchwords:

PROFESSIONS AND TRADES – dentistry – application for reinstatement

Catchwords:

OCCUPATIONS — Legal practitioners — Solicitors — Adjournment Application — Review —Unsatisfactory Professional Conduct — Correct and Preferable orders

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

ADMINISTRATIVE LAW — Home building — application for individual contractor licence — application of Instrument — experience requirements

Catchwords:

ADMINISTRATIVE LAW — Home building — application to vary licence — individual contractor licence — application of Instrument — qualification requirements

Catchwords:

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

Catchwords:

OCCUPATIONS — Legal practitioners — Solicitors — Unsatisfactory professional conduct — correct and preferable orders

Catchwords:

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

Catchwords:

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.

Catchwords:

HEALTH - Medical Practitioner – professional misconduct - unsatisfactory professional conduct

Catchwords:

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.

Catchwords:

ADMINISTRATIVE LAW – administrative review of decision to refuse an owner-builder permit for the construction of a dual occupancy – whether special circumstances exist

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

Chiropractor – criminal conviction – professional misconduct – if still registered registration would have been cancelled

Catchwords:

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

Catchwords:

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.

Catchwords:

HEALTH – professional registration – registered dentist – conviction – unsatisfactory professional conduct - the practitioner's fitness to practice dentistry - appropriate protective orders – prohibition orders – costs

Catchwords:

HEALTH — professional registration — registered pharmacist — conviction — unsatisfactory professional conduct — appropriate protective orders — reprimand — conditions — costs

Catchwords:

HEALTH – professional registration and discipline – formerly registered Chinese Medicine practitioner – unsatisfactory professional conduct – improper or unethical conduct – professional misconduct – cancellation of registration

Catchwords:

OCCUPATIONS — medical practitioners — criminal charges — criminal conviction — unsatisfactory professional conduct — professional misconduct — protective orders

Catchwords:

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

Catchwords:

ADMINISTRATIVE LAW – administrative review - Home Building – Applications for contractor licences – individual and company - employee – remuneration – not a subcontractor

Catchwords:

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”

Catchwords:

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

Catchwords:

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.

Catchwords:

LOCAL GOVERNMENT — Councillors — findings of misconduct — disciplinary action

Catchwords:

HEALTH — registered nurse — allegations of sleeping during night shifts — secondary employment — whether unsatisfactory professional conduct — whether professional misconduct

Catchwords:

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.

Catchwords:

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

Catchwords:

ADMINISTRATIVE REVIEW – Home Building – Application for contractor licence – bankruptcy – whether Secretary’s discretion should be exercised within three year bar

Catchwords:

HEALTH – Pharmacist - fraudulent PBS claims – Criminal Convictions - Unsatisfactory Professional Conduct - Professional Misconduct - Protective Orders - Refusal to make a Prohibition Order

Catchwords:

HEALTH — registered health practitioner — whether conduct found to amount to unsatisfactory professional conduct — appropriate form of protective orders — prohibition order

Catchwords:

OCCUPATIONS – Other occupations – Point to Point transport providers – Authorisation to provide a taxi service – Discretionary nature of decision – Public safety considerations

Catchwords:

PROFESSIONS AND TRADES – chiropractor – unsatisfactory professional conduct - professional misconduct – protective orders

Catchwords:

HEALTH - Medical Practitioner – unsatisfactory professional conduct - caution - conditions

Catchwords:

Administrative Law – administrative review – tow truck licence – public interest – driving record - condition

Catchwords:

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

Catchwords:

LICENCING – security licence – mandatory revocation – whether convicted of a prescribed offence involving assault of any description – summary dismissal – arguable case

Catchwords:

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

Catchwords:

Administrative Law – tow - car carrier – lifting device - motor vehicle combination - tow truck - tow truck operator.

Catchwords:

HEALTH – Pharmacist - misappropriation of medication from a hospital – mislead a regulatory authority - Unsatisfactory Professional Conduct - Professional Misconduct

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

COSTS - administrative review – costs - special circumstances - late and unsuccessful ground of fitness and propriety

Catchwords:

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

Catchwords:

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.

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

ADMINISTRATIVE LAW – administrative review – contractor licence – electrician - fit and proper person - condition to restrict to non-residential work

Catchwords:

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

Catchwords:

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.

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

HEALTH — professional registration and discipline — impairment — competence — costs

Catchwords:

OCCUPATIONS – Pharmacist – Application for reinstatement

Catchwords:

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)

Catchwords:

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.

Catchwords:

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)

Catchwords:

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

Catchwords:

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

Catchwords:

OCCUPATIONS – pharmacists – misconduct and discipline – unsatisfactory professional conduct and professional misconduct – reprimand – conditions on registration

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:

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

Catchwords:

HEALTH – professional registration – pharmacist – conviction – appropriate protective orders – prohibition orders – costs

Catchwords:

OCCUPATIONS — nurses — reinstatement application — whether onus established — whether reformation and insight established

Catchwords:

HEALTH — professional registration — registered pharmacist — termination of proceedings — costs

Catchwords:

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

Catchwords:

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.

Catchwords:

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

Catchwords:

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)

Catchwords:

ADMINISTRATIVE REVIEW – security licence – revocation of licence – stay – stay refused

Catchwords:

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

Catchwords:

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

Catchwords:

ADMINISTRATIVE REVIEW – Real Estate – Certificate of Registration - Assistant Agent – fit and proper person

Catchwords:

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 -

Catchwords:

PROFESSIONS AND TRADES – Refusal of general building contractor licence– administrative review of decision – scope of experience.

Catchwords:

OCCUPATIONS — medical practitioners — misconduct and discipline — application for reinstatement of registration following cancellation — contravention of a critical compliance condition — cancellation

Catchwords:

TRADES AND PROFESSION –– dentist –– Health Practitioner Regulation National Law –– unsatisfactory professional conduct –– professional misconduct –– reprimand ordered –– conditions placed on registration

Catchwords:

HEALTH – unsatisfactory professional conduct – professional boundaries – inadequate recordkeeping – stage 1 hearing – professional misconduct as a possible ground for deregistration – non-publication order

Catchwords:

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

Catchwords:

PROFESSIONS AND TRADES – dentistry –complaints of unsatisfactory professional conduct and professional misconduct

Catchwords:

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

Catchwords:

OCCUPATIONS — Medical practitioners — Refusal to renew registration — Appeal

Catchwords:

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

Catchwords:

TRADES AND PROFESSION –– Nursing –– Health Practitioner Regulation National Law –– unsatisfactory professional conduct –– underlying conduct admitted –– reprimand ordered

Catchwords:

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

Catchwords:

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

Catchwords:

COSTS — following the event – impecuniosity – proportion of total sum

Catchwords:

HEALTH — professional registration and discipline — reinstatement — costs

Catchwords:

PROFESSIONS AND TRADES – Refusal of qualified supervisor certificate – disconnection and reconnection of fixed electrical equipment – administrative review of decision – scope of work.

Catchwords:

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

Catchwords:

HEALTH - termination of proceedings - registered pharmacist – professional misconduct

Catchwords:

OCCUPATIONS — pharmacists — misconduct and discipline — failure to exercise independent judgment in respect of dispensing of Scheduled drugs — unsatisfactory professional conduct — professional misconduct

Catchwords:

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.

Catchwords:

ADMINISTRATIVE REVIEW – Licencing – licence cancelled – jurisdiction of Tribunal to review cancellation decision – whether respondent refused to amend licence or restore licence – whether reviewable decision

Catchwords:

LOCAL GOVERNMENT – Councillors – jurisdiction –-– misconduct – vacate civic office

Catchwords:

HEALTH — registered health practitioner — whether conduct found to amount to unsatisfactory professional conduct — appropriate form of protective orders — condition on registration

Catchwords:

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

Catchwords:

ADMINISTRATIVE LAW — Home building — application to vary licence — application of Instrument — experience requirements — ‘wide range of building construction work’ – ‘remuneration’ – ‘relevant application form’

Catchwords:

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)

Catchwords:

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

Catchwords:

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

Catchwords:

ADMINISTRATIVE LAW — Home building — application for individual contractor licence — application of Instrument — experience requirements — ‘wide range of building construction work’

Catchwords:

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

Catchwords:

ADMINISTRATIVE REVIEW – review of revocation of security licence – licence already expired – practical utility in proceeding to determine application – factors to consider – summary dismissal

Catchwords:

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)

Catchwords:

HEALTH — professional registration and discipline — registered nurse — practitioner pleaded guilty and convicted of criminal offence

Catchwords:

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

Catchwords:

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)

Catchwords:

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

Catchwords:

OCCUPATIONS — Legal practitioners — Barristers — Professional misconduct – Unsatisfactory Professional conduct – sexual harassment – breaches of Rules – transitional provisions regarding Rules

Catchwords:

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