Health Care Complaints Commission v David Kirby

2025/00455750

DISCIPLINARY PROCEEDINGS – the applicant seeks leave to appeal from the orders of Coleman ADCJ dated 29 October 2025. The applicant seeks that the orders be set aside and that the respondent's application dated 14 March 2025 in the NSW Civil and Administrative Tribunal below be dismissed. On 21 June 2024, the Tribunal determined that the respondent had engaged in unsatisfactory professional conduct (Stage 1 Decision). On 29 October 2025, Principal Member Coleman ADCJ ordered that the Stage 1 Decision be set aside on the basis that, as from November 2023, the Tribunal had lacked jurisdiction to continue to hear and determine the Stage 1 Decision following the change in the registration status, from practising to non-practising, of one of the occasional members. The applicant contends that the Principal Member made an error of law by construing 165B(2)(b) of the Health Practitioner Regulation National Law 2009 (NSW) (National Law) as requiring that a registered health practitioner, sitting as an occupational member of the Tribunal, must hold practising (rather than non-practising) registration. Further, if contrary to the applicant's primary case, a registered health practitioner holding non-practising registration does cease to satisfy these requirements, the Tribunal made another additional error of law in concluding that cl 8, Sch 2 of the Civil Administrative Tribunal Act 2013 (NSW) (CAT Act), which addresses the situation where a member ceases to have a necessary qualification during the course of a proceeding, had no application because it was inconsistent with 1658(2)(b) National Law. A dispute arises between the parties concerning whether leave to appeal is required. Unusually, the applicant contends leave is required while the respondent contends leave is not required. The applicant argues leave is required since the decision was an "ancillary decision" and a "decision" for the purposes of the National Law meaning leave is required per cl 29(6), Sch 5 CAT Act. Presumably, the applicant considers the decision is an 'interlocutory decision' per cl 29(6). The respondent submits leave is not required since cl 29(2)(b), Sch 5 CAT Act provides that a party to a proceeding in which a decision is made may appeal against a 'profession decision' to the Supreme Court. Alternatively, cl 29(4)(b) gives leave as of right in a non-lawyer appeal on any question of law. In any event, if leave is required, the respondent agrees leave should be granted.

Health Care Complaints Commission v Kirby [2025] NSWCATOD 144