Ghosh v Medical Council of New South Wales

This matter concerned an appeal to the Court of Appeal of New South Wales from a decision of the NSW Civil and Administrative Tribunal (NCAT). The appellant, Dr Ghosh, had appealed to NCAT against decisions made by the Medical Council of New South Wales. NCAT had dismissed Dr Ghosh's appeal, thereby confirming the Council's decisions and ordering Dr Ghosh to pay the Council's costs.

The Court was required to determine several legal issues. These included whether NCAT erred in its application of the rule in *Browne v Dunn* by failing to consider that evidence not accepted by the Tribunal went unchallenged by cross-examination. The Court also considered whether NCAT made an error by failing to consider an obvious and innocent explanation for certain circumstances, where the findings made were grave and devastating and infected the entirety of the decision. Finally, the Court had to determine whether the Medical Council was precluded from varying its earlier decision under section 150A of the *Health Practitioner Regulation National Law* (NSW) in the absence of a finding of changed circumstances under section 150A(4), or whether section 150C(2) authorised such variation without that limitation.

The Court of Appeal allowed the appeal. It reasoned that NCAT had erred in its approach to the *Browne v Dunn* principle, finding that the failure to cross-examine on a crucial aspect of the evidence was a significant factor that should have been considered. Furthermore, the Court found that NCAT had failed to consider an obvious and innocent explanation for the circumstances in question, which led to a flawed decision. The Court also determined that the Medical Council was entitled to vary its earlier decision under section 150C(2) of the National Law, notwithstanding the absence of a finding of changed circumstances under section 150A(4). Consequently, the Court set aside NCAT's decision and remitted the matter to NCAT to be heard again by a differently constituted panel. The respondent was ordered to pay 75% of the appellant's costs.