Ibrahim v Medical Board of Australia [2015] NSWCA 207
20 July 2015 – Macfarlan and Gleeson JJA and Simpson J
The Court of Appeal dismissed an appeal from the Occupational Division of the Civil and Administrative Tribunal (constituted by O’Connor ADCJ, Deputy President; Drs King and Toh, Professional Members; and Dr Mair, Lay Member: [2014] NSWCATOD 108). The appellant, an international medical graduate from Egypt, applied to the NSW Board of the Medical Board of Australia for limited registration under s 67 of the Health Practitioner Regulation National Law (NSW) (the National Law). His application was refused, in part because the Board was of the view that the appellant’s activities in NSW did not meet the Recency of Practice Standard. His appeal to the Civil and Administrative Tribunal pursuant to s 175 of the National Law was dismissed. In the Court of Appeal, the appellant argued that the Tribunal erred in its interpretation of the definition of ‘practice’ for the purpose of the Recency of Practice Standard ([50]-[51]). The Court of Appeal considered the Tribunal’s discussion of the meaning of ‘practice’, and held that by providing three examples of environments in which a medical practitioner may use his or her of professional knowledge so as to satisfy the definition of “practice”, the Tribunal had not set a higher standard than that required by the definition, but merely provided illustrations (see [59]-[63]).
Read the decision on the NSW Caselaw website.
Qasim v Health Care Complaints Commission [2015] NSWCA 282
22 September 2015 – McColl, Meagher and Ward JJA
The Court of Appeal considered an appeal brought by a former specialist endocrinologist and consultant physician whose registration as a health practitioner was cancelled as a result of proceedings in the Occupational Division of the Civil and Administrative Tribunal (constituted by Garling ADCJ, Principal Member; Drs Gleeson and Anderson, Professional Members; and Prof Chisholm, Lay Member: [2014] NSWCATOD 42).
In dismissing the appeal with costs, Meagher JA (with whom the Court agreed) held the following on the Tribunal’s decision to prefer the evidence of one expert’s evidence over that of another at [41]:
… In reaching its conclusion to prefer the evidence of Dr Samuels [over the contrary evidence of Dr Smith], the Tribunal stated that it also took into account the behaviour of Dr Qasim appearing for herself during the hearing. As a Tribunal with specialist members, it was entitled to draw upon their expertise in assessing whether Dr Qasim’s conduct and demeanour during the proceeding was consistent with Dr Samuels’ opinion: see Re Anderson & Medical Practitioners Act (1967) 85 WN (Pt 1) (NSW) 558 at 570 (Sugerman JA) and Kalil v Bray [1977] 1 NSWLR 256 at 260-261 (Street CJ). (emphasis added)
However if the Tribunal is to take this course, it must ensure that the parties are sufficiently informed and given an opportunity to address the point in order to satisfy the requirements of procedural fairness. At [41], Meagher JA also held in this case:
There was no denial of procedural fairness in that respect because the appellant was given notice at the commencement of the hearing that the Tribunal might do so.
The Court also considered the question of costs in proceedings under the Health Practitioner Regulation Uniform Law (NSW), which was the subject of a cross-appeal by the Health Care Complaint Commission. Clause 13 of Sch 5D of the Health Practitioner Regulation Uniform Law (NSW) provides in part:
13 Tribunal may award costs [NSW]
(1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal
… (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
The Court held that, in circumstances such as those referred to in cl 13(1), “ordinarily costs should follow the event unless there are reasons to conclude otherwise” (at [85], which also contains a list of authorities for the proposition) and, finding no such reasons, gave leave to appeal, allowed the cross-appeal and substituted in place of the Tribunal’s order as to costs an order that the appellant pay the Commission’s costs in proceedings before the Tribunal and on appeal before the Court.
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Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308
2 October 2015 – Leeming JA, Sackville AJA and Adamson J
The Court of Appeal refused the applicant, a public housing tenant, an extension of time and dismissed his claims for judicial review of decisions of the Consumer, Trader and Tenancy Tribunal and the District Court. Leeming JA gave a separate but mostly concurring judgment, in which his Honour considered there to be no utility in granting an extension of time where the tenant is clearly unwilling and unable to pay the rent and hence, with the passage of time, simply falls further and further into debt ([3]-[6]).
At [56], Sackville AJA held that section 113 of the Residential Tenancies Act 2010 (NSW) allows the Tribunal to terminate notwithstanding a defect in the notice of termination, if it is satisfied that the notice satisfies the broad criteria stated in s 113.
Sackville AJA did not decide whether Appeal Panel decisions are binding on the District Court, but did indicate that such decisions should be very persuasive authority to the District Court: ‘the [Appeal Panel] decision … added considerable weight to the argument that could have been put to the District Court’ (at [70]).
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Jensen Laundry Systems Australia Pty Ltd v Raskopoulos [2015] NSWCA 352
18 November 2015 – Meagher and Gleeson JJA
The Court of Appeal heard an application for leave to appeal (and to the extent necessary, an application for an extension of time in which to seek that leave) against a number of interlocutory orders made in the Supreme Court by a single judge, being orders granting leave to file a further amended statement of claim to join additional defendants, an order vacating the trial date and an order dismissing an application that the judge disqualify himself from hearing the proceedings on the basis of actual or apprehended bias (for which his Honour gave short reasons). In dismissing the application with costs, the Court held at [17]:
The extent of the duty to give reasons depends on the nature of the particular decision, the circumstances in which it is made and the purpose that the statement of reasons is intended to serve. In many procedural applications, there is no need for the court to provide any or detailed reasons. Here, when the relevant orders were announced on 6 and 8 May 2015, there were no reasons provided, that was obvious, and there was no request that they be provided. If a party is considering a challenge to interlocutory orders made in pre-trial directions or in the course of a trial, and it is apparent that the primary judge does not propose to give reasons, a request for reasons should be made at the time or as soon as possible thereafter. In this case the absence of reasons for the orders made, in circumstances where there is no obvious error in the exercise of the relevant discretion and no real utility in the pursuit of the proposed appeal, has not resulted in any substantial injustice to the applicants.
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Bull v Australian Quarter Horse Association [2015] NSWCA 354
19 November 2015 – Bathurst CJ, Beazley P and Sackville AJA
The Court of Appeal dismissed an appeal from Mr Bull, a breeder of quarter horses, against a decision of the Supreme Court, which held that the Regulations of the First Respondent, the Australian Quarter Horse Association (AQHA), prevented the registration of a cloned imported horse. One issue on appeal was whether an implied term existed in the agreement between AQHA and its members to the effect that an amendment to Regulations would not be binding on members until they had received notification of such amendment. The Court decided that no implied term could be found and summarised the test for implied terms in formal contexts and noted that the test is less rigorous for informal contracts, at [51]–[52]:
[51] Where the relationship between the parties occurs in a formal context, it is accepted that for a term to be implied into a contract, five conditions are to be satisfied: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283; Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; 144 CLR 596; Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337. The conditions necessary to be satisfied for a term to be implied are that the term must (1) be reasonable and equitable; (2) be necessary to give business efficacy to the contract; (3) be so obvious that “it goes without saying”; (4) be capable of clear expression; and (5) must not contradict any express term of the contract: BP Refinery v Shire of Hastings at 283.
[52] A contract between a large association such as AQHA, which amongst other things is directed to the maintenance and preservation of the pedigree of quarter horses in Australia and therefore to the protection of the commercial interests and investment of its members in their quarter horses, is properly to be regarded as a formal contract to which these principles apply. This is to be contrasted with an informal contract, where the test for implied terms is less rigorous: see Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410 at 422.
Read the decision on the NSW Caselaw website.
Saad v Fares [2015] NSWCA 385
25 November 2015 – Beazley P, Leeming JA and Emmett AJA
The Court of Appeal granted leave to appeal (to the extent leave was required) and allowed the appeal from a judgment of the District Court in proceedings for personal injury (caused by dog). The Court discussed the obligation to give reasons in the context, extracted at [21] of the judgment, where the District Court Judge had made positive findings that certain witnesses had invented or fabricated evidence. Leeming JA (with whom Beazley P and Emmett AJA agreed) held at [26]-[33]:
[26] It was necessary for the primary judge to give reasons for those findings. In some cases, very little by way of reasons is required. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 McHugh JA said:
“Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary ‘for him to go further and say, for example, that the reason was based on demeanour’: Connell v Auckland City Council [1977] 1 NZLR 630 at 632-633 per Chilwell J.”
[27] But Soulemezis concerned the sufficiency of the reasons of a judge of the Compensation Court in circumstances in which an appeal was confined to a question of law or in relation to the admission or rejection of evidence. As was made clear in Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at [12], it is important that the passage in Soulemezis not be applied unthinkingly in a different context. Following a trial in the District Court, the disappointed litigant is given a right of appeal, by way of rehearing, and not confined to questions of law.
[28] There is, at least on one view, a tension between the statement in Soulemezis reproduced above, and later decisions dealing with the obligation to give reasons, including Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [29]. Those decisions were considered by this Court in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [47]-[58]. It is not necessary for present purposes to consider the precise content of the obligation, or to explore the tension in the authorities.
[29] It is not necessary to do so because Heydon, Crennan and Bell JJ dealt with a similar issue in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361. They said at [67] in relation to party-witnesses such as Caroline, Fadi and Donna [the appellants and defendants at first instance]:
“It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party's claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party‑witness must have been given an opportunity to deal with the criticism.”
[30] The present case is even stronger: it is not that the party-witnesses were found to have deliberately withheld evidence, but that, according to his Honour [the District Court Judge], they fabricated false evidence. Although, at least in large measure, the witnesses were squarely confronted with the proposition that they were lying, this is a case, like Kuhl, where no reasons at all were given for the view formed by the primary judge.
[31] It was important for the people subjected to the very serious findings made by the primary judge to know why his Honour had regarded their evidence to have been fabricated. In part, those findings may have reflected the witnesses’ demeanours. In part, they may have reflected the intrinsic unlikelihood that a friend of the family, recently released from prison, was present with his dog which had apparently been returned to him three days earlier, and the existence of which was seemingly uncorroborated by any documentary evidence. In part, the findings may have been affected by the evaluation of the testimony of the plaintiffs, and a consideration of the nature of the wounds suffered by Jisele. They may easily have been informed by a combination of these and other matters. The men and women who have been subject to the adverse findings are entitled to know why the primary judge reached them, not least so that they can contend, in an appeal by way of rehearing, that they should not have been made.
[32] What is more, the findings were made on a wholesale basis. They applied to “the evidence of the Saad family”. No distinction was made between the different quality of the evidence given by Fadi (who could provide only limited corroboration, since he was absent) as opposed to Donna, Caroline and Antoinette.
[33] Further, there is nothing to explain why positive findings of fabrication, as opposed to a rejection of the evidence, were made. Section 140(2)(c) of the Evidence Act 1995 (NSW) applied, although it was not mentioned by his Honour, nor is there anything to suggest that he attended to the Briginshaw requirement of clear and cogent proof of the findings made: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
Read the decision on the NSW Caselaw website.
Fraser v Health Care Complaints Commission [2015] NSWCA 421
23 December 2015 – Basten, Ward and Leeming JJA
The Court of Appeal dismissed an appeal against the decision of the Civil and Administrative Tribunal, Occupational Division. The appellant was a registered nurse until the Tribunal cancelled her registration for professional misconduct. The professional misconduct consisted of the appellant providing experimental cancer treatment to four patients while recklessly indifferent to the fact that her supervisor was not registered medical practitioner. Grounds 1–9 of the appeal challenged the Tribunal’s finding that the appellant was recklessly indifferent to this fact. The appellant argued that the Tribunal had erred in applying an objective test. In finding that the Tribunal did apply a subjective test, the Court of Appeal quoted (with approval) the following statement of Edelman J in Guidice:
It is possible that the references by the Tribunal to 'should have been aware' and 'should have considered' might be read as shorthand references to
A matter that any reasonable practitioner would have been aware so that the inference to draw from the circumstances was that this practitioner was aware that the statement might be untrue and made that statement without satisfying himself that it was true and regardless of the consequences.
Read the decision on the NSW Caselaw website. | 
