Alexakis v Health Care Complaints Commission

The applicant, Alexakis, sought leave to appeal from an interlocutory decision of the Civil and Administrative Tribunal, Occupational Division, which had refused to grant a stay of proceedings. The dispute arose in the context of separate civil proceedings in the Supreme Court, which shared a common factual basis with the proceedings before the Tribunal. However, the issues in each forum were distinct, and findings made in one were not admissible in the other. The applicant contended that the refusal of the stay constituted an error of law or raised an issue of principle, or that there was demonstrated unfairness. The appeal was heard by Basten, Gleeson, and Brereton JJA in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the Tribunal’s refusal to grant a stay was an appealable error. This involved considering the principles governing leave to appeal from interlocutory decisions of the Tribunal, particularly where the applicant alleged an error of law, an issue of principle, or demonstrated unfairness. The Court also had to assess whether the applicant had established prejudice arising from the refusal of the stay, given the separate nature of the proceedings in the Supreme Court and the limited admissibility of findings between them.

The Court reasoned that the applicant had not demonstrated the necessary prejudice to warrant leave to appeal from the interlocutory decision. The fact that the proceedings in the Supreme Court and the Tribunal had a common factual basis but differed in their legal issues and the admissibility of findings meant that the refusal of a stay in the Tribunal did not inherently cause unfairness or prejudice in the Supreme Court proceedings. The Court found that the applicant had failed to establish an error of law or an issue of principle that would justify granting leave to appeal.

Consequently, the Court of Appeal dismissed the summons seeking leave to appeal and the notice of motion filed on 10 August 2021. The Court further ordered that the practitioner pay the Commission’s costs in the Court of Appeal.