Coleman v Health Care Complaints Commission of NSW

The applicant, Dr Coleman, a medical practitioner, sought a stay of disciplinary proceedings before the NSW Civil and Administrative Tribunal (NCAT) on the grounds that these proceedings concerned the same alleged misconduct as pending criminal proceedings. The Health Care Complaints Commission of NSW (HCCC) was the respondent. The appeal was heard by Macfarlan and Meagher JJA, and Simpson AJA.

The central legal issue before the Court of Appeal was whether the NCAT had erred in refusing to grant a stay of the disciplinary proceedings until the conclusion of the criminal proceedings against Dr Coleman. This required the court to consider the principles established in *Zhao v New South Wales* (2015) 255 CLR 46, particularly concerning the potential prejudice to an individual facing parallel disciplinary and criminal proceedings arising from the same conduct.

The Court of Appeal found that the NCAT had erred in its approach. Applying the principles from *Zhao*, the court determined that Dr Coleman would suffer prejudice if the disciplinary proceedings were not stayed. While acknowledging that delay in resolving disciplinary proceedings was a relevant factor, the court considered it not to be a critical one in this instance. The court reasoned that the risk of Dr Coleman being compelled to give evidence in the disciplinary proceedings that could be used against him in the criminal proceedings, or the potential for the disciplinary proceedings to prejudice the criminal proceedings, warranted a stay.

The Court of Appeal granted leave to appeal, allowed the appeal, and set aside the NCAT's order of 6 May 2020. The court ordered that the disciplinary proceedings against Dr Coleman be stayed until the Tribunal ordered otherwise, and that the HCCC pay Dr Coleman's costs.