NCAT Legal Bulletin Issue 3 of 2026 | The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the High Court of Australia, the Court of Appeal of New South Wales, the Supreme Court of New South Wales and the Court of Appeal of Victoria published in May, June, July and August 2026. | Chaplin v Secretary, Department of Social Services ([2026] HCA 22): The High Court heard an appeal concerning the application of the income test in Module H of the Youth Allowance Rate Calculator in s 1067G of the Social Security Act 1991 (Cth). The High Court unanimously dismissed the appeal holding that the decision-maker was required to take the ordinary income into account in the relevant instalment period in which the decision-maker was satisfied that the income was received.
| | Luo v Health Care Complaints Commission ([2026] NSWCA 145): The applicant sought leave to appeal a decision of the NSW Supreme court, alleging errors of law made by the primary judge that were “difficult to understand”. The primary judge dismissed an appeal from an NCAT decision which had upheld three of four complaints referred to it by the Health Care Complaints Commission. Most of the applicant’s complaints were about factual determinations and evaluative decisions made by NCAT and not about any error allegedly made by the primary judge. Leave to appeal was refused.
| | Schwartz v Health Care Complaints Commission ([2026] NSWCA 162): Dr Schwartz appealed from NCAT’s Occupational Division (OD) to the NSW Court of Appeal. In dismissing the appeal, the Court of Appeal held first, that the failure to identify a question of law was not cured by the drafting technique of framing complaints with the words “erred in law”. Secondly, the Court of Appeal held that the words “administer any conscious sedation (by any route)” were technical words, the meaning of which were a question of fact and as such, the conclusion made by NCAT was one which was open to be drawn from the evidence.
| | Health Care Complaints Commission v Kirby ([2026] NSWCA 168): NCAT’s Occupational Division (OD) held that Dr Kirby (the respondent) had engaged in unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW) (“National Law”). The NSW Court of Appeal held that although Dr Selby’s (one of the original panel members) change of status meant that he was no longer a health practitioner for the purposes of s 165B(2) of the National Law, he was an “affected member” within the meaning of cl 8(2) of Sch 2 to the NCAT Act and, as such, was authorised to complete or otherwise continue to deal with any matters in the proceedings. The Court of Appeal allowed the appeal and set aside the principal member’s decision to set aside the first instance OD decision.
| Singh v Health Care Complaints Commission ([2026] NSWSC 903): The Supreme Court of NSW allowed an appeal by a plaintiff whose registration as a nurse was cancelled by NCAT’s Occupational Division (OD). The Court reasoned that the concepts of being a “suitable person to hold registration” and being a “fit and proper person” are “not identical” and as such, NCAT misdirected itself as to the correct statutory test, having only considered the latter in its reasons. The appeal was allowed and the Stage 1 and 2 decisions were set aside.
| Spence v Commissioner of Police, New South Wales Police Force ([2026] NSWSC 984): The NSW Supreme Court dismissed an amended summons which sought judicial review of an internal review decision by a delegate of the Commissioner of Police. The delegate affirmed the decision to revoke the plaintiff’s firearms licence. The Court found that no ground of judicial review was made out.
| | | | Chaplin v Secretary, Department of Social Services [2026] HCA 22 17 June 2026 - Gageler CJ, Gordon, Steward, Jagot, Beech-Jones JJ
In sum: The appeal concerned the application of the income test in Module H of the Youth Allowance Rate Calculator (the Calculator) in s 1067G of the Social Security Act 1991 (Cth) (the Act). Each instalment is calculated by reference to the applicable daily rate and the income test could result in a person being entitled to a lower rate if they earned, derived or received ordinary income. Point 1067G-H1 of Module H considers the amount of the person's ordinary income on a fortnightly basis. Between 10 July 2014 and 24 June 2015, the appellant was paid instalments totalling $2,804.02. In his employment, the appellant was paid weekly and recorded his gross and net pay, and the total number of hours worked during the preceding week. However, it did not record the days on which he had worked those hours.
The appellant was required to report the gross amount he had "earned for work done" during each instalment period. What he reported instead was his net income. It came to the attention of the first respondent ("the Secretary") in April 2019 that the appellant's gross income during the relevant period had exceeded the amount he had reported. The Secretary gave the appellant a notice in respect of a debt in the amount of $911.98 and this decision was affirmed on internal review. On review, the Administrative Appeals Tribunal ("AAT") set aside the internal review decision. On a second AAT review instigated by the Secretary, the AAT set aside both the decision of the AAT on first review and the decision on internal review. It substituted a decision to give the appellant a notice in respect of a debt of $806.16. The Full Court dismissed an appeal from that decision.
The High Court unanimously dismissed the appeal. The High Court held that a decision-maker applying the income test in Module H for an instalment period before 7 December 2020 who was satisfied that a person had received ordinary income, but could not be satisfied as to when they had earned it, was required to take the ordinary income into account in the instalment period in which the decision-maker was satisfied that it was received.
Catchwords:
Administrative law (Cth) – Social security – Where application of income test in Module H of Youth Allowance Rate Calculator in s 1067G of Social Security Act 1991 (Cth) reduced rate of youth allowance in certain circumstances where ordinary income earned, derived or received – Where point 1067G-H23 of Module H provided "ordinary income is to be taken into account in the fortnight in which it is first earned, derived or received" – Where appellant received youth allowance for 14-day instalment period beginning on Thursday and ending on second Wednesday that followed – Where appellant worked as casual employee at grocery store without fixed days or hours of work – Where appellant paid weekly by employer for hours worked during period of 7 days beginning on Monday and ending on Sunday of preceding week – Where appellant required to report gross amount "earned for work done" during each instalment period – Where youth allowance instalment period did not align with weekly payslips – Where appellant consistently and mistakenly reported net income in payslips for two preceding working weeks – Where Secretary gave notice in respect of debt which Secretary considered had arisen by operation of s 1223(1) of Social Security Act – Where Secretary satisfied certain ordinary income received but could not be satisfied as to fortnight in which ordinary income earned – Whether, and if so how, point 1067G-H23 required such ordinary income to be taken into account.
Words and phrases – "daily rate", "debt", "first earned, derived or received", "fortnightly instalment period", "gross income ", "income test", "net income", "ordinary income", "overpayment", "rate calculator", "social security", "social security benefit", "social security payment", "social security periodic payment", "youth allowance", "Youth Allowance Rate Calculator".
Social Security Act 1991 (Cth), ss 8, 1067G, 1223(1), 1229.
Social Security (Administration) Act 1999 (Cth), s 8.
Held (unanimously dismissing the appeal):
(i) Link to the High Court’s case summary is here. | Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families and Urban Housing as delegate of the Minister for the Environment [2026] HCA 23 5 August 2026 - Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
In sum: The High Court unanimously allowed an appeal from a judgment of the Court of Appeal of the Northern Territory. The appeal concerned the validity of a decision made on review to grant a 30-year water extraction licence under the Water Act 1992 (NT) (the Water Act). Mpwerempwer Aboriginal Corporation RNTBC (MAC) had sought review (under s 30 of the Water Act) of the decision in the NT Supreme Court where the primary judge dismissed the proceeding, and the Court of Appeal dismissed MAC’s appeal. In the High Court, MAC relied on three grounds: (1) the delegate Minister was required to be satisfied under s 60(4)(b) of the Water Act that special circumstances justified the grant of a licence for a period exceeding ten years, and failed to discharge her statutory function in that respect; (2) the delegate Minister failed to consider a mandatory relevant consideration, namely the protection of Aboriginal cultural values, in a manner sufficient to comply with s 90(1) of the Water Act; and (3) the delegate Minister failed to accord MAC procedural fairness by not providing MAC with notice that CP 10 (a proposed new condition on the water extraction licence) would be attached to the water extraction licence. The High Court unanimously allowed the first and third grounds of appeal.
Catchwords:
Administrative law – Judicial review – Water extraction licence – Where 30-year water extraction licence granted under s 60 of Water Act 1992 (NT) ("Water Act") – Where Minister required to be satisfied under s 60(4)(b) of Water Act that special circumstances justified grant of licence for period exceeding ten years – Where Minister required to take into account protection of Aboriginal cultural values associated with water – Where condition of licence was that licensee develop and submit Aboriginal cultural values impact assessment – Whether Minister satisfied that special circumstances justified grant of licence for period exceeding ten years – Whether Minister failed to take into account mandatory relevant consideration of Aboriginal cultural values – Whether Minister failed to accord procedural fairness to prescribed body corporate for relevant native title holders.
Words and phrases – "Aboriginal cultural values", "Aboriginal cultural values impact assessment", "adverse conclusion", "condition", "condition precedent", "cultural and biodiversity values", "discharge of statutory function", "groundwater", "groundwater dependent ecosystems", "interpretation of reasons", "judicial review", "jurisdictional error", "jurisdictional fact", "mandatory relevant consideration", "must take into account", "native title holders", "procedural fairness", "requirement of reasons", "requirement to manifest satisfaction", "review panel", "satisfied", "special circumstances", "state of mind", "state of satisfaction", "water allocation plan", "water extraction licence", "water extraction licence decision".
Water Act 1992 (NT), ss 30, 60, 71A-71E, 90.
Held (unanimously allowing the appeal):
(i) Link to the High Court’s case summary is here. | | Court of Appeal of New South Wales | Luo v Health Care Complaints Commission [2026] NSWCA 145 27 July 2026 - Ward P; Payne JA
In sum: The applicant sought leave to appeal a decision of the NSW Supreme court, alleging nine errors by the primary judge. The errors of law alleged to have been made by the primary judge were “difficult to understand”. The primary judge dismissed an appeal from an NCAT decision which had upheld three of four complaints referred to it by the Health Care Complaints Commission (the respondent). Most of the applicant’s complaints were about factual determinations and evaluative decisions made by NCAT and not about any error allegedly made by the primary judge.
Facts: In its first decision, NCAT found the applicant guilty of unsatisfactory professional conduct and professional misconduct under ss 139B and 139E of the Health Practitioner Regulation National Law 2009 (NSW) respectively. The applicant was a Chinese medicine practitioner, but his registration was suspended at the time of the proceedings. In 2023, the respondent filed an application for disciplinary findings and orders against the applicant in relation to his practice and the death of one of his patients in 2018.
In his appeal to the Supreme Court, the applicant alleged 13 errors of law. The primary judge dismissed the applicant’s further amended summons with costs. The applicant identified nine putative “errors” in the judgment of the primary judge in the draft notice of appeal, but failed to identify with the necessary precision the form or nature of the errors asserted. The appeal grounds included a further four errors of law, but those were not addressed in the applicant’s summary of argument.
Held (refusing the appeal):
(i) Leave to appeal is required under s 101(2)(r) of the Supreme Court Act: Luo v Health Care Complaints Commission [2026] NSWCA 42 per Free JA.
(ii) The principles which apply in the application of s 101(2)(r) were stated by the Court of Appeal in Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [13]-[19] (per Bell P, Basten and Leeming JJA agreeing). They include the following: the onus lies on the party asserting that it may bring its appeal as of right to demonstrate that the amount in issue meets the $100,000 threshold; this involves showing that a successful appeal would improve the party’s financial position by at least that amount; and this requires demonstration of a realistic prospect on appeal of lessening the prejudice that the party would otherwise suffer by reason of the order appealed against. There must be a proper evidentiary basis for the party’s contentions in this regard.
(iii) A grant of leave to appeal generally requires the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable.
(iv) The applicant’s alleged errors of law asserted to be made by the primary judge were “difficult to understand”. Most of the applicant’s complaints were about factual determinations and evaluative decisions made by NCAT and not about any error allegedly made by the primary judge. No leave had been granted to the applicant to raise any issue of fact.
(v) Leave to appeal refused. The applicant did not identify any issue of principle, question of public importance or error going beyond the merely arguable. The primary judge dealt with the applicant’s complaints “fairly and correctly”. | Racing NSW v Australian Turf Club Ltd [2026] NSWCA 115 19 June 2026 - Kirk JA; Stern JA; Griffiths AJA
In sum: The NSW Court of Appeal granted leave to appeal and allowed an appeal by Racing New South Wales (RNSW) against a decision in which the primary judge declared that RNSW’s appointment of an administrator to the Australian Turf Club Ltd (ATC) under the Thoroughbred Racing Act 1996 (NSW) (the Act) was legally invalid and of no effect. The key issues on appeal were: first, whether the power to make the appointment fell within the ambit of RNSW’s function under the Act “to control, supervise and regulate horse racing in [NSW]”; second, whether, to be authorised, the appointment had to be within the ambit of this function and also within its identified powers under the Act; third, whether RNSW’s treatment of a report prepared by KordaMentha was erroneous and invalidated the appointment; fourth, whether RNSW was unable to make the appointment because the power to do so had been impliedly repealed by a separate NSW statute; fifth, whether RNSW was unable to make the appointment because to do so would be inconsistent with various provisions of State and Commonwealth statutes, including the Corporations Act 2001 (Cth).
Catchwords: ADMINISTRATIVE LAW — construction of reasons — functions and powers — whether appointment of administrator fell within the ambit of functions — whether the appointment of administrator was required to fall within the ambit of functions — definition of “horse racing” within the Thoroughbred Racing Act 1996 (NSW)
ADMINISTRATIVE LAW — judicial review — jurisdictional error — whether decision-maker erred in treatment of report produced in response to a show cause notice — high threshold in establishing legal unreasonableness — no such error established
STATUTORY INTERPRETATION — amendment and repeal — whether provision of the Thoroughbred Racing Act 1996 (NSW) impliedly repealed by the Australian Jockey Club and Sydney Turf Club Merger Act 2010 (NSW) — implied repeal not established
CONSTITUTIONAL LAW — alleged inconsistency between Thoroughbred Racing Act 1996 (NSW) and Corporations Act 2001 (Cth) and Corporations Law (NSW) — meaning and scope of operation of s 5E of the Corporations Act — tests for inconsistency under s 109 of the Constitution — whether appointment of an administrator under State Act consistent with provisions in Corporations Act dealing with control and management of corporations — analogy between appointment of an administrator and a receiver — no inconsistency established
Held (granting leave to appeal and allowing the appeal):
(i) Link to the Court of Appeal’s case summary is here. | Schwartz v Health Care Complaints Commission [2026] NSWCA 162 18 August 2026 - Leeming JA; Adamson JA; Griffiths AJA
In sum: Dr Schwartz (the appellant) appealed from NCAT’s Occupational Division (OD) to the NSW Court of Appeal on 10 grounds. In dismissing the appeal, the Court of Appeal held first, that the failure to identify a question of law is not cured by the drafting technique of framing complaints by the words “erred in law”. Secondly, the Court of Appeal held that the words “administer any conscious sedation (by any route)” in the condition on Dr Schwartz’s registration were technical words, the meaning of which were a question of fact and as such, the conclusion made by NCAT was one which was open to be drawn from the evidence.
Facts: Dr Schwartz practised as a registered medical practitioner subject to conditions imposed by the Medical Council of NSW under s 150 of the Health Practitioner Regulation National Law (NSW). One of those conditions stipulated that Dr Schwartz was “not to administer any conscious sedation (by any route) or monitor any sedated patients”. No definition of “conscious sedation” was included.
From August 2019 to February 2021, Dr Schwartz administered intramuscular fentanyl to eight patients for blepharoplasty and liposuction procedures. The Health Care Complaints Commission (HCCC) alleged that Dr Schwartz had failed to comply with the condition by performing conscious sedation without the administration and monitoring being undertaken by an anaesthetist or sedationist. The HCCC relied on expert evidence from Associate Professor Sutherland, an anaesthetist, and Dr Young, a general practitioner. No expert evidence was called by Dr Schwartz.
The Tribunal held that “conscious sedation” bore the meaning contained in the 2014 Australia and New Zealand College of Anaesthetists (ANZCA) guidelines, rejecting Dr Schwartz’s reliance on the successor guidelines in 2023. The Tribunal further accepted Associate Professor Sutherland’s opinion that Dr Schwartz’s use of fentanyl fell within the definition of “conscious sedation” and found that Dr Schwartz had engaged in unsatisfactory professional conduct and professional misconduct.
Before the NSW Court of Appeal, Dr Schwartz contended that NCAT “erred in law” by misconstruing “conscious sedation” and finding that he had performed “conscious sedation”, by finding breaches of ANZCA guidelines regarding venous access, informed consent and pre-sedation consultation, and in respect of NCAT’s findings that unrecorded acts had not occurred. The HCCC contended that most grounds raised no question of law, and that leave was required for any ground that did not.
Held (granting leave to appeal, dismissing the appeal):
(i) The failure to identify a question of law is not cured by the drafting technique of framing complaints by the words “erred in law”. Some grounds of appeal were “palpably” complaints about fact-finding and were unattended by any question of law despite the use of the six word “mantra” of “the Tribunal erred in law in” or “the Tribunal erred in law by”.
(ii) The words “administer any conscious sedation (by any route)” in the condition on Dr Schwartz’s registration are technical words, the meaning of which are a question of fact. It is the “construction” of a term whose meaning is established that is a question of law. As such, it was open to NCAT to have regard to the report which led to the imposition of the condition.
(iii) While it is true that “conscious sedation” is, as a matter of plain English, a state rather than particular conduct, in this context the condition has been expressed as though conscious sedation is “something which can be administered, either intravenously or by other routes, as opposed to a state which may be achieved”.
(iv) NCAT was correct to disregard the distinction drawn by ANZCA in 2023 between “minimal” and “moderate” sedation, which arose after the imposition of the condition. The effect of the condition was for all categories of sedation, howsoever achieved, to be prohibited except when an anaesthetist or sedationist was present.
(v) It was open to NCAT not to accept Dr Schwartz’s evidence, having seen him being cross-examined. It was “open to proceed on the basis that an absence of any record of a provisional diagnosis being made sustained the conclusion that no such diagnosis was in fact made”. NCAT was also entitled to “bring to bear” its members’ expertise in appropriate record-keeping by medical practitioners, and Dr Young’s expert evidence of what would be expected to be recorded by a competent GP. NCAT’s conclusion was one which was open to be drawn from the evidence taken as a whole.
(vi) Leave to appeal was granted but the appeal was dismissed. | Amirbeaggi v Council of the Law Society of New South Wales [2026] NSWCA 166 20 August 2026 - Leeming JA; Mitchelmore JA; Price AJA
In sum: In 2024, the respondent concluded that the appellant had engaged in unsatisfactory professional conduct within the meaning of s 296 of the Legal Profession Uniform Law 2014 (NSW) (Uniform Law). NCAT’s Occupational Division (OD) affirmed the respondent’s decision. The appellant appealed from NCAT on the basis that it erred in finding that he had engaged in unsatisfactory professional conduct. The appeal was dismissed with costs.
Facts: In November 2020, the respondent, the Council of the Law Society of NSW, received a complaint regarding the appellant, Mr Amirbeaggi, a practising solicitor. The client in respect of whom the complaint was made (the client) had been the subject of a financial management order made by NCAT, pursuant to which the NSW Trustee and Guardian (NSW Trustee) had been appointed to manage the client’s finances. The appellant commenced a number of proceedings on behalf of the client in the Supreme Court, including, relevantly, proceedings seeking a determination that the client was capable of managing her own financial affairs (financial management proceedings).
In April 2019, the financial management proceedings were listed for directions but the submissions stating that the client did have capacity were not accepted, so directions were made permitting the defendants to seek leave to file further expert evidence on the question of capacity. Separately, the NSW Trustee filed for an assessment of the appellant’s costs in the various Supreme Court proceedings. In a letter to the costs assessor (the Letter), the appellant stated that in the April directions hearing the Court stated that there was no doubt that the client had capacity. The complaint against the appellant was that he attempted to have the costs assessment stayed by inaccurately representing to the costs assessor that Lindsay J had expressed an unqualified positive opinion regarding the client’s capacity. In July 2024, the respondent concluded that the appellant had engaged in unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law. The appellant applied to NCAT’s OD for review of the respondent’s decision. NCAT affirmed the respondent’s decision.
The appellant appealed from NCAT on the basis that it erred in finding that he had engaged in unsatisfactory professional conduct. In particular, the appellant challenged NCAT’s findings in respect of: (1) the existence of a disparity between the letter and what was said at the April directions hearing, (2) the reasonableness of the appellant’s recollection of what was said at the April directions hearing, (3) the capacity of the letter to mislead the costs assessor, and (4) the “recklessness” of the appellant’s use of language in the letter.
Held (dismissing appeal, with costs):
(i) The impugned statement in the letter, considered in context, conveyed an unequivocal opinion on Lindsay J’s part that the Client had capacity. The use of “noted” in the statement did not render the statement any less absolute. There was a disparity between the impugned statement and the transcript of the April directions hearing, which recorded that his Honour rejected senior counsel’s submission and instead expressed a view that the Client’s capacity remained in issue. However, the fact that the appellant did not have the transcript or a contemporaneous note of what occurred at the time he wrote the letter was highly relevant.
(ii) NCAT accepted the appellant’s evidence as to his recollection of what occurred at the April directions hearing but rejected that he could have an actual recollection that the words attributed to Lindsay J in the letter were actually said by his Honour. The reasonableness of the appellant’s recollection was not determinative of NCAT’s conclusion. In any event, the absence of any challenge to, or criticism of, the appellant’s recollection did not support the conclusion that it was either accurate or reasonable.
(iii) The opportunity for the NSW Trustee to correct the letter, the availability of the transcript to the costs assessor, and the appellant’s issuance of a subsequent letter were irrelevant to the question of whether the Letter was capable of misleading the costs assessor at the time it was sent. NCAT was correct to conclude that it was. It was unnecessary to find that the costs assessor had in fact been misled.
(iv) In context, NCAT’s use of the term “reckless” was not intended to characterise the appellant’s conduct as more than “careless”. On that basis, the question for determination by NCAT was whether the appellant’s carelessness fell short of the standard of competence and diligence a member of the public is entitled to expect of a reasonably competent lawyer. NCAT was correct to find that the appellant’s conduct fell short of that standard. Considering the circumstances in which the letter was written, it was incumbent upon the appellant to be assiduous in making statements in respect of the client’s capacity.
(v) The appeal was dismissed with costs. | Health Care Complaints Commission v Kirby [2026] NSWCA 168 20 August 2026 - Bell CJ; Ward P; Leeming JA
In sum: The Occupational Division (OD) of NCAT held that Dr Kirby (the respondent) had engaged in unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW) (National Law). Section 165B(2)(b) of the National Law required that when conducting an inquiry, NCAT is to be constituted by a judge, a layperson and two “health practitioners … registered” in the same health profession as the individual the subject of the inquiry. When the proceedings commenced, two members of the panel were registered to practise dentistry. When the first decision was made, however, one of those members – Dr Selby – had changed his registration to “non-practising” status. NCAT, constituted by the principal member alone, purported to make a decision to set the first decision aside on the basis that, at the time the first decision was made, NCAT had not been constituted in accordance with s 165B(2)(b) of the National Law because Dr Selby was not an individual who “practised” dentistry. The principal member further held that cl 8 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW) did not empower Dr Selby to continue dealing with the matter because that clause was inconsistent with Pt 8 Div 10 of the National Law and was therefore ineffective by virtue of s 165A of that law. The Court of Appeal held that although Dr Selby’s change of status meant that he was no longer a health practitioner for the purposes of s 165B(2) of the National Law, he was an “affected member” within the meaning of cl 8(2) of Sch 2 to the NCAT Act and, as such, was authorised to complete or otherwise continue to deal with any matters in the proceedings. The Court of Appeal allowed the appeal from the second decision and set that decision aside.
Catchwords:
ADMINISTRATIVE LAW — Jurisdictional error — where principal member of the Civil and Administrative Tribunal purported, sitting alone, to set aside decision of fully constituted Tribunal — whether a single member could set aside a “stage 1” decision in proceedings in the Occupational Division of the Tribunal on the basis that the decision to set aside was ancillary to or consequential on the stage 1 decision — meaning of “ancillary” and “consequential on” — jurisdictional error — whether appeal still permitted from a decision involving jurisdictional error — appeal or judicial review
APPEALS — Right of appeal — Scope of right — whether right of appeal from a purported decision affected by jurisdictional error
OCCUPATIONS — Health practitioners — Health Practitioner Regulation National Law (NSW) — whether Tribunal constituted by senior judicial officer has power to set aside stage 1 decision of the Tribunal — whether stage 1 decision is an “ancillary” or “interlocutory” decision — whether s 53 of the Civil and Administrative Tribunal Act 2013 (NSW) cures absence of power
OCCUPATIONS — Health practitioners — Health Practitioner Regulation National Law (NSW) — whether reference to “health practitioner … registered” in s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW) refers to “health practitioner” or “registered health practitioner” — whether cl 8 of Sch 2 of the Civil and Administrative Tribunal Act 2013 (NSW) empowers “health practitioner” to continue to deal with matters in proceedings after ceasing to be registered
STATUTORY INTERPRETATION — Definitions — Insertion of definition into substantive enactment — whether reference to “health practitioner … registered” in s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW) refers to definition of “health practitioner” — whether context or subject matter otherwise requires that reference refers to definition of “registered health practitioner”
STATUTORY INTERPRETATION — Legislative purpose — Statement of objects — where s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW) provides that provisions in Pt 8 Div 10 intended to apply despite anything to the contrary in the Civil and Administrative Tribunal Act 2013 (NSW) — where Pt 8 Div 10 of the Health Practitioner Regulation National Law (NSW) provides for procedure, and consequences of vacation of office by member, of Civil and Administrative Tribunal — where cl 8 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW) provides for member who ceases to have required qualification to continue to deal with matter notwithstanding — whether any provisions in Pt 8 Div 10 of the Health Practitioner Regulation National Law (NSW) and enlivened in present case directly inconsistent with or repugnant to cl 8 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW)
Held (appeal allowed):
(i) Link to the Court of Appeal’s case summary is here. | | Supreme Court of New South Wales | Singh v Health Care Complaints Commission [2026] NSWSC 903 30 July 2026 - Richardson J
In sum: The Supreme Court of NSW allowed an appeal by a plaintiff whose registration as a nurse was cancelled by NCAT’s Occupational Division (OD). The NCAT proceedings had two stages. In Stage 1, NCAT erroneously found the plaintiff (Mr Singh) “guilty” of both unsatisfactory professional conduct and professional misconduct, when the complaint was actually a question of whether or not he was “a suitable person to hold registration as a nurse” which involves a distinct statutory test. In Stage 2, NCAT purported to remedy this error by implementing the slip rule and making an order which simply stated that the respondent was not “a fit and proper person to practice [sic] as a registered nurse”. The Court reasoned that the concepts of being a “suitable person to hold registration” and being a “fit and proper person” are “not identical” and as such, NCAT misdirected itself as to the correct statutory test. The appeal was allowed and the Stage 1 and 2 decisions were set aside.
Facts: The plaintiff was formerly a registered nurse and sought appeal against orders made by NCAT in two decisions. The first was made on 8 October 2025 where Mr Singh was found “guilty” of three complaints alleged by the Health Care Complaints Commission (HCCC) and of unsatisfactory professional conduct and professional misconduct. The second decision was made on 24 December 2025 where NCAT cancelled Mr Singh’s registration as a nurse under s 149C(1)(d) of the Health Practitioner Regulation National Law (NSW) (National Law), prohibiting him from providing health services for a period of three years.
In the Stage 1 NCAT hearing, the HCCC made three allegations: first, by reference to s 144(a) of the National Law Mr Singh has been convicted of/been made the subject of a criminal finding; secondly, Mr Singh had been engaged in unsatisfactory professional conduct under s 139B(1)(b) of the National Law; thirdly, pursuant to s 144(e) of the National Law, Mr Singh is otherwise not a suitable person to hold a registration as a nurse (by reference to a single course of conduct on 5 May 2020 whereby Mr Singh “deceptively administered” Propofol (an anaesthetic)). The first two complaints were admitted by Mr Singh and as such, it was only the third complaint which was in dispute.
Held (allowing the appeal):
(i) NCAT was required first, to determine whether it was satisfied of the factual matters that were denied by Mr Singh and second, to turn its mind to whether those matters rendered Mr Singh “not a suitable person to hold registration as a nurse” (a matter also denied by Mr Singh). The Court clarified that the HCCC had not alleged either unsatisfactory professional conduct or professional misconduct against Mr Singh as part of the third complaint. NCAT, however, concluded in the Stage 1 proceedings that Mr Singh was “guilty” of both unsatisfactory professional conduct and professional misconduct. In other words, despite there being no allegation of professional conduct made against Mr Singh, NCAT determined that he was guilty of such conduct.
(ii) Section 63 of the NCAT Act sets out, in effect, a form of statutory slip rule that applies to NCAT and requires the presiding member to be satisfied that there is an “obvious error” in the text of the notice or reasons of the decision. Prior to the Stage 2 hearing, the HCCC contended that there were two matters that “should be corrected under the slip rule”. The errors were that the criterion of not a “fit and proper person” was not the relevant statutory test and that Mr Singh had not “consented” to the proposition that he was not a fit and proper person.
(iii) In purporting to correct such errors from Stage 1, NCAT subsequently made an order that read “by consent, accepted that the Respondent is not a fit and proper person to practice as a registered nurse”. However, NCAT failed to identify the parts of the reasons and final orders that NCAT was purporting to amend nor did it in fact implement the original slip application.
(iv) While there is some overlap between the concepts of being a “suitable person to hold registration” and being a “fit and proper person” they are “not identical”.
(v) In any event, the allegation of “not [being] a fit and proper person” had not been made by the HCC, nor is it the relevant statutory criteria that would have enlivened the power to cancel the registration of a health practitioner, which NCAT proceeded to exercise as part of the Stage 2 decision.
(vi) NCAT misdirected itself as to the correct statutory test and the Stage 1 and 2 decisions were set aside.
(vii) The proceedings were remitted to a differently constituted Tribunal. | Spence v Commissioner of Police, New South Wales Police Force [2026] NSWSC 984 19 August 2026 - Payne JA
In sum: The NSW Supreme Court dismissed an amended summons which sought judicial review of an internal review decision by a delegate of the Commissioner of Police, New South Wales Police Force (the defendant) (the Commissioner). The delegate affirmed the decision to revoke the plaintiff’s firearms licence. The Court found that no ground of judicial review was made out.
Facts: The plaintiff owns and farms 10,000 acres of land and on 19 December 2022, the plaintiff was issued with a Category ABC firearms licence. On 12 April 2024, the police were notified by Swan Hill Hospital of a firearms incident which had occurred at the plaintiff’s property. An injury was sustained by a shooter who was a relative of the plaintiff. A police investigation ensued. The plaintiff was subsequently charged with firearms-related offences including not keeping a firearm safely, not taking all reasonable precautions, not having approved storage in compliance with requirements, possessing an unregistered firearm, possessing or using a weapon without a permit and failing to provide Commissioner particulars when firearm acquired.
On 9 September 2025, the delegate affirmed the decision to revoke the plaintiff’s Category ABC firearms licence pursuant to s 24(2) of the Firearms Act. This decision was made on bases including that the plaintiff had been found guilty without conviction and a Conditional Release Order (CRO) had been imposed for several firearms-related offences.
Initially, the plaintiff sought merits review of the delegate’s decision in NCAT. On 24 December 2025, amendments effected by the Terrorism and Other Legislation Amendment Act 2025 (NSW) commenced. As such, on 6 January 2026 NCAT dismissed the proceeding pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). In February 2026, these judicial review proceedings were commenced.
Held (dismissing amended summons):
(i) In the present case, the decision-maker was required to advise of any adverse conclusion which had been arrived at which would not obviously be open on the known material. Identifying whether there is any adverse conclusion which has been arrived at is a process of construing the decision-maker’s reasons.
(ii) This case should be approached on the basis that the Firearms Act did not exclude an obligation to identify all relevant material which may have been adverse to the plaintiff’s interests, communicate that information to the plaintiff and then permit the plaintiff an opportunity to respond to it, before making a decision.
(iii) Mr Spence was initially charged with certain offences but, ultimately, he was found guilty of only a narrow sub-set of those offences. The Court simply identified that the plaintiff had “initially” been charged with various matters, but the dispositive reasoning remained limited to the offences for which he was found guilty. The absence of an opportunity to cross-examine on this point did not constitute a denial of procedural fairness.
(iv) The Plaintiff submitted the decision-maker took into account “an irrelevant consideration”, in that a mandatory ground for refusing a new licence application is if a person is subject to a bond for certain offences. There is, however, no express or implied prohibition in the statute on a decision-maker taking into account the mandatory refusal ground when deciding whether to revoke a licence.
(v) The Firearms Act also strongly suggests that police records are not legally impermissible material for a decision-maker to consider, including because they will contain “evidence which is logically probative”. The dispositive reasoning in the decision under review found the plaintiff guilty of offences which were identified in these records and therefore they were not “irrelevant considerations”.
(vi) The plaintiff’s submission on legal unreasonableness could not stand because there was an “evident and intelligible justification” for the decision maker to have given less weight to the matters relied upon by the plaintiff, and more weight to the public interest and to public safety. The plaintiff’s argument that “the process might have been technically followed, but the resulting decision [was] so disproportionate or illogical that it points back to an underlying flaw in logic”, was not established.
(vii) The amended summons dismissed, plaintiff ordered to pay the defendant’s costs. | | Court of Appeal of Victoria | Lifestyle Management 2 Pty Ltd v Dowling [2026] VSCA 201 21 August 2026 - Beach, Richards and Kaye JJA
In sum: The Victorian Court of Appeal construed s 206S(1)(b) of the Residential Tenancies Act 1997 (RT Act) differently to VCAT but the outcome was the same. The Court of Appeal granted leave to appeal but dismissed the appeal. The management fee payable under the tenants’ site agreements was deemed inconsistent with s 206S(1)(b) of the RT Act and void by reason of the operation of s 206F(3)(a) because the agreements failed to identify a fixed or non-fixed amount which had to be paid as the fee.
Facts: The applicants own the Lifestyle Wollert Community (the Community) which is a ‘Part 4A park’ in which residents lease their sites but own the homes located on the sites. It is subject to Pt 4A of the RT Act, which regulates site agreements between operators and residents of Pt 4A parks. Each respondent was a tenant with a site agreement for the lease of the site on which their home is located and the use of shared services and facilities in the Community. Separately, each of the tenants purchased the home located on their site and a share of the Community infrastructure.
Each site agreement contains terms requiring the payment of a ‘deferred management fee’ if the agreement is terminated, the home is sold or removed, or the home is transferred to a beneficiary. The tenants contend that the owners cannot enforce the deferred management fee terms because they are inconsistent with Pt 4A of the RT Act.
The matter was initially heard in VCAT by its President, Woodward J. In the reasons for its decision, VCAT answered the preliminary questions. The second of which was whether the terms for payment of the deferred management fee in the site agreements breach s 206S(1)(b) or (c) of the RT Act. VCAT found that the terms for payment of the deferred management fee breached s 206S(1)(b) but did not breach s 206S(1)(c). The owners subsequently sought leave to appeal, focusing on two questions: (1) what the proper construction and operation of s 206S(1)(b) of the RT Act is in respect of the site agreements the subject of VCAT proceedings and (2) whether the terms of the site agreements imposing an obligation to pay the deferred management fee are inconsistent with s 206S(1)(b) of the RT Act, properly construed, and void by reason of the operation of s 206F(3)(a) of the RT Act.
Held (granting leave to appeal but dismissing the appeal):
(i) Section 206S(1)(b) of the RT Act requires a site agreement to include details of how much money must be paid in respect of rent, fees and other charges. That may be achieved by specifying a fixed and certain sum or by specifying a non‑fixed amount to be determined using an agreed basis of calculation. In either case, a site tenant must be able to ascertain how much must be paid no later than the time the fee or charge becomes payable. If the amount of the fee or charge remains indeterminate at that time, it has not been disclosed in accordance with s 206S(1)(b).
(ii) None of the site agreements include details of the amount of the deferred management fee payable under the agreement, as required by s 206S(1)(b). The terms of the site agreements imposing an obligation to pay the deferred management fee are therefore inconsistent with s 206S(1)(b) of the RT Act and void by reason of the operation of s 206F(3)(a) of the RT Act.
(iii) While the Court of Appeal’s construction of s 206S(1)(b) differs from that reached by VCAT, the outcome was the same. VCAT was correct to conclude that the terms of the site agreements imposing the deferred management fee are inconsistent with s 206S(1)(b) and hence void, and that the owners must not require payment of the deferred management fee.
(iv) Leave to appeal was granted, the appeal was dismissed. | | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
|
|
