Ibrahim v Medical Board of Australia

[2015] NSWCA 207

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ibrahim v Medical Board of Australia [2015] NSWCA 207
Hearing dates:	3 June 2015
Decision date:	20 July 2015
Before:	Macfarlan JA at [1]; Gleeson JA at [2]; Simpson J at [79]
Decision:	Appeal dismissed with costs.
Catchwords:	APPEAL – civil – registration as a medical practitioner under the Health Practitioner Regulation National Law – application for limited registration in an area of need – meaning of ‘practice’ in approved recency of practice registration standard – whether NCAT erroneously narrowed the ambit of ‘practice’ – no error in finding employment as medical receptionist, pathology collector and undertaking observerships did not satisfy the definition of ‘practice’ – appellant ineligible for limited registration
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Sch 5, Pt 4 Div 3, cl 29 Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) Health Practitioner Regulation National Law Act 2009 (Qld) Health Practitioner Regulation National Law (NSW) ss 3, 5, 31, 36, 38, 52, 55, 65, 66, 67, 68, 69, 70, 80, 81, 82, 175, 247A Supreme Court Act 1970 (NSW) s 69
Cases Cited:	Attorney General for the State of New South Wales v XY [2014] NSWCA 466 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 McMahon v Nursing and Midwifery Board of Australia [2013] NSWNMT 4 NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494; 53 NSWLR 559 Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63
Category:	Principal judgment
Parties:	Ashraf Ibrahim Abdou Ibrahim (Appellant) Medical Board of Australia (Respondent)
Representation:	Counsel: M Paton (solicitor) (Appellant) R Graycar and N Swan (Respondent)   Solicitors: Maxwell, Meredith & Co (Appellant) Clayton Utz (Respondent)
File Number(s):	2014/325666
Decision under appeal	Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: Ibrahim v Medical Board of Australia [2014] NSWCATOD 108 Date of Decision: 1 October 2014 Before: O'Connor ADCJ;Dr King;Dr Toh;Dr Mair File Number(s): 1420181

Judgment

1. MACFARLAN JA: I agree with Gleeson JA.

2. GLEESON JA: The appellant, Mr Ibrahim, is an international medical graduate from Egypt. He is not eligible for general registration as a medical practitioner under s 52 of the Health Practitioner Regulation National Law (NSW) (the National Law). In October 2013 he applied to the New South Wales Board of the Medical Board of Australia (Board) for limited registration under s 67 of the National Law to fill an area of need as general practitioner, at the KRS Health Family Medical Practice at two separate sites in Wagga Wagga, New South Wales.

3. On 8 April 2014 the Board refused Mr Ibrahim’s application. One of the matters of concern for the Board was his lack of recency of clinical practice. He had not practised since leaving Egypt in June 2007. The Board was of the view that Mr Ibrahim’s activities in New South Wales since 2007, including various unpaid observership roles and work as a medical receptionist and a pathology collector, did not amount to practice history or clinical training in satisfaction of the requirements for limited registration which were stated in two approved registration standards for medical practitioners. Those standards (which were both effective 1 July 2010) were the limited registration for area of need registration standard (Area of Need Standard) and the recency of practice registration standard (Recency of Practice Standard).

4. Mr Ibrahim appealed against the decision of the Board to the NSW Civil and Administrative Tribunal (Tribunal) pursuant to s 175 of the National Law.

5. On 1 October 2014 the Occupational Division of the Tribunal (constituted by a judicial officer, two professional members and a lay member) dismissed his appeal and confirmed the Board’s decision. The Tribunal found that the work done by Mr Ibrahim since 2007 did not qualify as clinical experience that might meet the Recency of Practice Standard. The Tribunal concluded that Mr Ibrahim did not meet the Area of Need Standard, and did not meet the Recency of Practice Standard. Accordingly the Tribunal found Mr Ibrahim to be ineligible for registration by virtue of s 82(1)(c)(i)(E) of the National Law.

6. Mr Ibrahim has appealed from the Tribunal’s decision, pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act) Sch 5, cl 29(2)(b) . His statutory right of appeal is limited to any question of law, or with leave of the Court, on any other grounds: Tribunal Act , Sch 5, cl 29(4)(b). He has not sought leave to extend the appeal to “any other grounds” and accordingly, his appeal is to be taken as limited to any question of law.

7. An understanding of how the “practice” issue was dealt with in the Tribunal is assisted by an outline of the relevant legislative provisions, the approved registration standards, and the facts relating to Mr Ibrahim’s involvement in the health sector since 2007.

Legislative framework and registration standards

Adoption of the National Law

8. The National Law was adopted in New South Wales as a national law relating to health practitioner regulation by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) (the Adoption Act). The Adoption Act applies as a law of New South Wales with certain modifications, the Health Practitioner Regulation National Law, as in force from time to time, set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld).

9. The objectives of the national registration and accreditation scheme are stated in s 3(2)(a) of the National Law to include:

to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.

10. Section 3A of the National Law, which is an additional provision in the New South Wales legislation, provides that in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. The expression “NSW provision” means (a) a provision that forms part of the National Law in New South Wales because of a modification made by the Adoption Act; or (b) a NSW regulation (being a regulation under s 247A of the National Law): National Law, s 5.

Registration of health practitioners

11. Part 7 of the National Law deals with the registration of “health practitioners”. This expression is defined to include the medical profession: s 5. Section 52 deals with eligibility for general registration. It is not presently relevant.

12. Section 65 deals with eligibility for limited registration. This is available where an individual is not qualified for general registration in the relevant profession; is qualified under Division 4 of Pt 7 for limited registration; is a suitable person for limited registration in the profession; is not otherwise disqualified under the National Law from applying for registration, or being registered, in the health profession; and meets any requirements for registration stated in an approved registration standard for the health profession.

13. The reference to an approved registration standard is a reference to registration standards which a National Board either must develop and recommend to the Australian Health Workforce Ministerial Council (Ministerial Council) with respect to certain matters, including requirements in relation to recency of practice (s 38(1)(a)-(e)), or which a National Board may develop and recommend to the Ministerial Council in respect of other matters, including the scope of practice of health practitioners registered in the profession (s 38(2)(b)).

14. The reference in the National Law to the “National Board” means a National Health Practitioner Board established by s 31: s 5. For the medical profession, the relevant board is the Medical Board of Australia: s 31(1). The National Board may establish a committee, referred to as a State or Territory Board, for a participating jurisdiction to exercise its functions in the jurisdiction: s 36(1). In the present case the Medical Board of Australia established a State Board for New South Wales known as the New South Wales Board of the Medical Board of Australia: s 36(2). Mr Ibrahim’s application for limited registration was made to and determined by the New South Wales Board of the Medical Board of Australia, which has been referred to in the preceding paragraphs as the “Board”.

15. Division 4 of Pt 7 provides four types of limited registration: limited registration for postgraduate training or supervised practice (s 66); limited registration for an area of need (s 67); limited registration in the public interest (s 68); and limited registration for teaching or research (s 69).

16. Under s 67(1) an individual may apply for limited registration to enable an individual to practise a health profession in an area of need, which the responsible Minister decides under subs (5). The responsible Minister may decide that there is an area of need for health services in part of New South Wales if the Minister considers there are insufficient health practitioners practising in a particular health profession to provide services that meet the needs of people living in New South Wales, or part of New South Wales: s 67(5). (It may be assumed, although it seems not to have been the subject of direct evidence, that the Minister has decided that Wagga Wagga is an area of need.)

17. Under s 67(2) the individual is qualified for limited registration if the Board is satisfied the individual’s qualifications and experience are relevant to, and suitable for, the practice of the profession in the area of need.

18. Section 70 makes applicable to applications for limited registration the various grounds contained in s 55 upon which the Board may decide an individual is not a suitable person to hold general registration in a health profession. In view of the way in which the Tribunal ultimately dealt with the matter, it is unnecessary to set out the suitability grounds which were in issue before the Board and the Tribunal.

19. Under s 80, the Board is given certain powers before deciding an application for registration. These include the power to require the applicant to give the Board further information or documents as the Board reasonably requires to decide the application; to undergo an examination or assessment within a reasonable time to assess the applicant’s ability to practice the health profession in which registration is sought: s 80(1).

20. If after considering an application for registration, the Board proposes to refuse to register the applicant or to impose a condition of registration, the Board must give the applicant written notice of the proposal: s 81(1). The notice must state the reasons for the proposal and invite written or verbal submissions from the applicant: s 81(2).

21. Under s 82, the Board must either decide, relevantly, to grant the applicant the type of registration in the health profession applied for if the applicant is eligible for that type of registration (s 82(1)(a)), or to refuse to grant the applicant registration if the applicant is ineligible for registration in the profession under a relevant section because the applicant does not meet a requirement for registration stated in an approved registration standard for the profession (s 82(1)(c)(i)(E)).

22. Under s 175 of the National Law a person may appeal the decision by the Board to refuse to register the person to the appropriate responsible tribunal. Such a decision is described as an “appellable decision”. The appropriate tribunal in the present case was the Occupational Division of the Tribunal: Sch 5, Pt 4, Div 3 of the Tribunal Act.

Approved registration standards

23. The registration standards which have been approved by the Ministerial Council and are relevant to the present case, are the Area of Need Standard and Recency of Practice Standard.

24. The Area of Need Standard applies to international medical graduates who do not qualify for general or specialist registration and deals with the requirements for initial registration, the pathways to registration and the requirements placed on limited registration. The standard provides that the Board will decide whether the applicant has the necessary skills, training and experience to safely meet the particular need for health services. The general requirements for limited registration are stated in cl 6 to include:

Evidence of work practice history that meets the Board’s recency of practice registration standard. This must include a resume that describes the applicant’s full practice history and any specific clinical training undertaken. Any gaps and/or overlaps in practice history from date of qualification to the present must be included and explained. [Emphasis added.]

25. The Recency of Practice Standard applies, relevantly, to all applicants for medical registration who are applying for registration in any practising category. The standard relevantly deals with the requirements for practitioners returning to practice within their previous field depending on the length of the absence and on their years of experience prior to the absence.

26. The requirement for practitioners returning to practice within their previous field after an absence greater than three years – provided they have at least two years’ experience prior to the absence – is to provide a plan for professional development and for re-entry to practice to the Board for consideration: cl 1(c).

27. The standard defines “practice” as follows:

Practice means any role, whether remunerated or not, in which the individual uses their skills and knowledge as a health practitioner in their profession. For the purposes of this registration standard, practice is not restricted to the provision of direct clinical care. It also includes using professional knowledge in a direct nonclinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on safe, effective delivery of services in the profession.

28. The rationale for the Recency of Practice Standard is stated in the “Summary” as follows:

To ensure that they are able to practise competently and safely, medical practitioners must have recent practice in the fields in which they intend to work during the period of registration for which they are applying.

The specific requirements for recency depend on the field of practice, the level of experience of the practitioner and the length of absence from the field.

…

Practitioners who are unable to meet the recency of practice requirements set out below will be required to submit a plan for re-entry to practice for the Board’s consideration and may be required to complete specific education.

Relevant facts

29. In outline, Mr Ibrahim graduated in medicine from university in Cairo, Egypt, in December 1988 after a six year course. He completed a one year hospital internship and in early 1990 was registered as a medical practitioner by the relevant authority in Egypt. He practised continuously from 1990 to 2000. Thereafter his work as a general practitioner was intermittent only.

30. Mr Ibrahim did not practice between February 2001 and December 2003. During that period he came to Australia in 2002, and subsequently decided to migrate with his wife and their first child and successfully applied for a business visa. He and his wife established a business in Sydney operating childcare centres. He returned to practice in Egypt in January 2004. He worked alone in a general practice from January 2004 to June 2007 with some work at a polyclinic and hospital. He returned to Australia in June 2007 where he has remained since.

31. Mr Ibrahim gave evidence before the Tribunal that since June 2007 he had engaged in observerships at various medical practices. This comprised over a two year period, January 2011 to December 2012, 10 hours per week at one medical practice in 2011 and 16 hours per week at another in 2012 and also 8 hours per week at a general practice during both years. He outlined the range of clinical, record taking, record keeping and medical practice management activities he observed. He also performed clerical and administrative tasks. Between April 2012 and March 2014 he undertook other observerships.

32. Mr Ibrahim also gave evidence of his work as a medical receptionist at Bourke Street Medical Centre (part-time from March 2011 to April 2012) and the scope of his duties as a pathology collector (from November 2010). In addition, Mr Ibrahim took several programs for further professional education with the RACGP and voluntarily attended various study groups, mainly at Westmead Hospital.

Report of Dr Kamerman

33. The evidence before the Tribunal included a report of Dr Ian Kamerman, a registered medical practitioner.

34. Dr Kamerman expressed the opinion that Mr Ibrahim’s application for limited registration in an area of need ought to be refused. He addressed three particular areas of concern. The first related to Mr Ibrahim’s lack of recency of clinical practice, the second related to the adequacy of Mr Ibrahim’s supervision plan and the third related to the adequacy of Mr Ibrahim’s performance in the pre-employment structured clinical interview (PESCI). It is only necessary to refer to the first matter.

35. Dr Kamerman noted that Mr Ibrahim was seeking to return to practice within his previous field, being general practice. He noted that for the purpose of the Recency of Practice Standard, Mr Ibrahim had at least two years experience, prior to his absence from practice after he ceased working in his private practice in Egypt in June 2007.

36. With respect to Mr Ibrahim’s activities since June 2007 as a part-time medical receptionist and a full-time pathology collector, Dr Kamerman expressed the opinion:

While there is a degree of overlap in the skills required, these roles do not utilitise the skills and knowledge of a general practitioner working within the profession of general practice. It is my opinion that neither a medical receptionist nor pathology collector requires the skills and knowledge of a registered health practitioner let alone a medical practitioner or a specialist general practitioner.

37. With respect to Mr Ibrahim’s activities since June 2007 as an observer within a general practice, Dr Kamerman expressed the opinion:

Observership by definition is a passive role. … It rarely allows a health practitioner acting within that role to exercise their skills and knowledge and, in particular, clinical reasoning in an independent fashion such that they maintain their skills for independent general practice. It may be possible over prolonged periods of observership, with a keen supervisor, a motivated observer and a significant number of willing patients, to regain general practice skills. However, by reference to the documents provided by Dr Michael Guirguis, Dr Saad Saad and Dr George Ibrahim … there is no evidence that these observerships constituted anything more than simple observation and exposure. In my opinion they are not within the scope of the definition of practice according to the recency of practice standard. It is therefore my opinion that Dr Ibrahim has been absent from clinical practice since June 2007, that is a period of more than seven years. As such he must, according to the standard, provide a plan for professional development and for re-entry to practice to the Board for its consideration.

38. Dr Kamerman went on to outline a number of options that may be available to Mr Ibrahim to obtain the skills he requires. These included obtaining a position as a physician’s assistant within a general practice working with a registered general practitioner. This is relevant to the alternative relief which Mr Ibrahim seeks in his amended notice of appeal, as discussed below.

The Tribunal’s reasons

39. The Tribunal outlined the relevant statutory framework under the National Law, the requirements of the Area of Need Standard and the Recency of Practice Standard, and the primary matters of concern for the Board when refusing Mr Ibrahim’s application for limited registration in an area of need, including his lack of recency of clinical practice: at [13]. The Tribunal noted that it was common ground that the right of appeal provided by s 175 involved a hearing “de novo”: at [16]. Reference was made to McMahon v Nursing and Midwifery Board of Australia [2013] NSWNMT 4 at [76].

40. The Tribunal recorded that its jurisdiction is a protective one having regard to the objective stated in s 3(2)(a) of the National Law, which is set out above at [9].

41. The Tribunal summarised the evidence of Mr Ibrahim’s qualifications and practice as a medical practitioner prior to June 2007, and his attempts to qualify himself for Australian registration since that time, which have been referred to above at [29]-[32].

42. The Tribunal accepted that Dr Kamerman was an experienced general practitioner and supervisor of persons with limited registration. The Tribunal recorded that it should give weight to his opinions but that it was not bound by them: at [33].

43. The Tribunal then addressed Dr Kamerman’s opinion in relation to the PESCI assessment, the adequacy of Mr Ibrahim’s amended supervision plan and the gap in clinical practice. It is only necessary to refer to the last matter which the Tribunal observed was the key area of concern: at [44]. This is the only part of the Tribunal’s reasons which Mr Ibrahim challenges as disclosing an error of law.

44. In regard to the gap in clinical practice, the Tribunal referred to its earlier summary of Mr Ibrahim’s activities since 2007 by way of observerships, work in health sector environments, and his professional development courses: at [46]. The Tribunal observed that the Board found that these activities did not constitute practice for the purpose of the Recency of Practice Standard. The Tribunal further observed that Dr Kamerman supported the Board, and had given a detailed explanation of the relevant standard and how it applied: at [47].

45. The focus of Mr Ibrahim’s complaint is [48] of the Tribunal’s reasons, where the Tribunal said:

We do not accept the submission made on behalf of Mr Ibrahim that 'practice' as defined in the relevant standard (set out earlier in these reasons) extends to 'any role' in connection with the practice of medicine, and therefore covers pathology collection, observerships, medical receptions and study courses. The critical aspect of the definition is the reference to activities that involve the 'use of skills and knowledge as a health practitioner', which we read in the present context to be 'use of skills and knowledge as a medical practitioner'. The definition of 'practice' seeks to pick up situations where medical knowledge is being used outside the usual consultation and treatment setting. The definition of 'practice' allows for the use of professional knowledge in 'indirect nonclinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles'. In our view, the statement is referring to the use of professional knowledge in environments such as the management of professional programs in a medical research centre, teaching in a university medical school, or senior roles in the administration of the health protection functions of a public health agency where specialised knowledge is required. [Emphasis added.]

46. The Tribunal agreed with Dr Kamerman and the Board that the work done by Mr Ibrahim by way of observerships, as a medical receptionist and as a pathology collector do not qualify as clinical experience that might meet the Recency of Practice Standard: at [49].

47. The Tribunal concluded Mr Ibrahim did not meet the Area of Need Standard in the ways indicated and that he did not meet the Recency of Practice Standard: at [51]. Accordingly the Tribunal dismissed the appeal (at [55]) without finding it necessary to decide whether Mr Ibrahim was not a suitable person to hold registration: s 82(1)(c)(i)(C) of the National Law.

Issues on appeal

48. The question of law identified in the grounds of appeal is whether the Tribunal erred in its interpretation and construction of the definition of “practice” for the purpose of the Recency of Practice Standard.

49. Mr Ibrahim also challenges the Tribunal’s finding at [49] that his activities since June 2007 did not qualify as clinical experience which might meet the Recency of Practice Standard.

Submissions

50. Mr Ibrahim’s essential complaint is that the Tribunal adopted a too narrow construction of the definition of “practice”. It is said that this misconstruction led the Tribunal into error in finding that the work done by Mr Ibrahim since 2007 by way of observerships, as a medical receptionist and as a pathology collector, did not qualify as clinical experience for the purposes of the Recency of Practice Standard.

51. In oral argument the solicitor for Mr Ibrahim acknowledged that the only complaint made was in respect of the final sentence of the Tribunal’s reasons in [48] (tcpt, CA at 2, lines 15-22). Mr Ibrahim’s complaint is that by identifying particular examples of environments contemplated by the third sentence of the definition of “practice”, the Tribunal unnecessarily narrowed the ambit of roles in which an applicant may use their professional knowledge so as to satisfy the requirements of the Recency of Practice Standard.

52. The respondent seeks to uphold the Tribunal’s decision and contends that the Tribunal did not misconstrue the definition of “practice” by specifying examples of some of the environments in which the definition of “practice” in the Recency of Practice Standard might apply. The respondent also contends that the Tribunal’s finding that the work done by Mr Ibrahim since 2007 did not qualify as clinical experience, was a question of fact, not a question of law, and thus not amenable to review by way of appeal to this Court without leave. As already mentioned, Mr Ibrahim did not seek leave to appeal on grounds not constituting a question of law.

Consideration

53. The definition of “practice” in the Recency of Practice Standard is set out above at [27]. Three observations can be made in relation to that definition.

54. First, the primary focus of the definition is on the use of skills and knowledge as a health practitioner in their profession. Here the relevant profession is that of a medical practitioner.

55. Secondly, the conception of “practice” is expressly stated not to be restricted to the provision of direct clinical care, which ordinarily would involve the application of professional skills and knowledge.

56. Thirdly, the definition includes an expansive but non-exhaustive list of other roles in which an applicant for registration may satisfy the definition of “practice”. So much is clear from the use of the word “includes” in the third sentence of the definition. Those other roles are described in a relatively high level of generality. They include the use of professional knowledge in direct nonclinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles. That this list of other roles is non-exhaustive is further emphasised by the concluding words of the third sentence of the definition “and any other roles that impact on safe, effective delivery of services in the profession”.

57. In the present case, no complaint is made by Mr Ibrahim in regard to the Tribunal’s identification in the second sentence of [48] of the critical aspect of the definition of “practice”, being the reference to activities that involve the “use of skills and knowledge as a health practitioner in their profession”.

58. Nor is any complaint made in regard to the Tribunal’s observation in the third sentence of [48] that the definition of “practice” seeks to pick up situations where medical knowledge (which may be taken to be a reference to professional knowledge) is being used outside the usual consultation and treatment setting, that is, the provision of direct clinical care. (It is to be noted that Mr Ibrahim did not contend that any of the roles in the third sentence of the definition of “practice” might satisfy the definition without the application of either professional skill or knowledge.) Likewise, no complaint is made in relation to the fourth sentence of [48].

59. Mr Ibrahim’s complaint is a narrow one. It is directed to the Tribunal’s reference in the final sentence of [48] of its reasons, to 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”. That the three references were no more than examples of environments in which the use of such professional knowledge, outside of direct clinical care, may satisfy the definition of “practice”, is made clear by the preceding words “such as” in the final sentence of [48] of the Tribunal reasons.

60. Mr Ibrahim submitted that the type of examples given by the Tribunal set a higher standard than that required by the definition of “practice”. This submission treated the examples given by the Tribunal as determinative of what is “practice”, outside of the provision of direct clinical care. The Tribunal did no such thing. The point of the examples given by the Tribunal was to provide illustrations of the types of roles contemplated by the expanded definition of “practice” which might satisfy the definition. The Tribunal did not purport to confine the meaning of “practice” to such examples.

61. Thus, the Tribunal’s reference to the use of professional knowledge in environments such as “management of professional programs in a medical research centre” is an example of the type of role contemplated by the words in the definition referring to “working in management”; the reference to “teaching in a university medical school” is an example of an “education” role; and the reference to “senior roles in the administration of the health protection functions of a public health agency where specialised knowledge is required” is an example of a “regulatory” role.

62. Contrary to the submissions of Mr Ibrahim, the three examples given by the Tribunal are not to be taken as restricting the ambit of roles, outside of direct clinical care, in which a medical practitioner may satisfy the definition of “practice”.

63. In my view, no error of law has been made out.

64. Nonetheless, Mr Ibrahim pressed his challenge to the Tribunal’s finding (at [49]), that the work done by him by way of observerships, as a medical receptionist and as a pathology collector did not qualify as clinical experience that might meet the Recency of Practice Standard. In particular, Mr Ibrahim contended in oral argument that his work in a pathology collection practice should be viewed as another example of a role in which a medical practitioner uses his or her professional skill and knowledge (tcpt, CA at 3, lines 28-29).

65. In rejecting Mr Ibrahim’s contentions, the Tribunal accepted the evidence of Dr Kamerman that a greater level of involvement in clinical activities than that which is involved in observing procedures, or undertaking tasks of a narrow though not unimportant kind as is involved in, for example, pathology collection, was required to satisfy the definition of “practice”.

66. The respondent contended that the Tribunal’s finding at [49] was a question of fact and is not amenable to appeal, in the absence of leave, which had not been sought. In oral argument, the solicitor for Mr Ibrahim properly accepted that the question of whether work as a collector in a pathology practice satisfied the definition of “practice”, is a question of fact (tcpt, CA at 3, lines 31-35).

67. The distinction between questions of fact and questions of law arises in many fields of law. As the High Court has observed, no satisfactory test of universal application has yet been formulated: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 (Agfa) at 394.

68. In Attorney General for the State of New South Wales v XY [2014] NSWCA 466, Basten JA observed at [157] that the High Court in Agfa:

… did not in terms reject the conventional approach with respect to errors of law in applying ordinary words adopted by Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; 94 CLR 509 at 512:

“The common understanding of the words has therefore to be determined, and that is a question of fact .... The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words as so determined; and that is a question of law: .... If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact ....".

69. The Tribunal is a body having expertise in making assessments in relation to the suitability of applicants for registration as a health practitioner, including whether the applicant meets the requirements of an approved registration standard relevant to the application for registration. In the present case, different conclusions were reasonably possible as to whether the activities of Mr Ibrahim since June 2007 met the definition of “practice” in the Recency of Practice Standard. It was necessary for the Tribunal to decide what was the correct conclusion. That was a question of fact which the Tribunal decided adversely to Mr Ibrahim. There is no right of appeal, without leave, with respect to such a factual finding, and none was sought or obtained in the present case. The challenge to the Tribunal’s factual findings is not open to Mr Ibrahim.

Relief

70. It is only necessary to refer to one further matter. This concerns the relief sought by Mr Ibrahim. In his notice of appeal filed 5 November 2014, Mr Ibrahim sought orders setting aside the decision of the Tribunal, and in its place, an order that his application for limited registration on an area of need basis be granted.

71. Subsequently on 25 March 2015, Mr Ibrahim filed an amended notice of appeal seeking, in the alternative, a different remedy in respect of what was described as an “amended” application for limited registration for postgraduate training or supervised practice with the Board pursuant to s 66 of the National Law. This application had been lodged by Mr Ibrahim with the Board on 5 March 2015, that is, after the Tribunal’s decision. According to his written submissions, the offer of employment in Wagga Wagga had been either withdrawn or lapsed sometime in October 2014.

72. Notwithstanding the position stated in the written submissions, the solicitor for Mr Ibrahim stated from the bar table that there remained the possibility of an offer of employment for Mr Ibrahim at the KRS Family Medical Practice in Wagga Wagga. It was said that if Mr Ibrahim succeeded in his primary claim for relief he would discontinue his second application before the Board for limited registration for postgraduate training or supervised practice pursuant to s 66.

73. For the reasons given above, Mr Ibrahim’s primary claim for relief should be rejected.

74. The solicitor for Mr Ibrahim accepted in oral argument that this Court did not have power to grant the alternative relief sought (tcpt, CA at 6, lines 5-8). That concession was appropriate. Any such relief is premature since the Board has not yet made a determination in relation to Mr Ibrahim’s “amended” application under s 66 of the National Law.

75. Even if the Board had made a determination with respect to that different application there are other difficulties with the alternative relief which would need to be confronted in this Court. One is the well-established principle that relief of the kind available under s 69 of the Supreme Court Act 1970 (NSW) will not generally be granted if there is another equally effective and convenient remedy, such as here, the right of appeal from a decision of the Board to the Tribunal under s 175 of the National Law: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 at [51]; NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494; 53 NSWLR 559 at [16].

76. Another is the well-established principle that this Court is not a specialist tribunal and has no medical knowledge of its own nor does it have the advantage of the Tribunal of seeing and hearing the appellant personally. Generally, if error was found by the Tribunal the matter should be remitted to the Tribunal for redetermination: Chowdhury v Health Care Complaints Commission [2010] NSWCA 56 at [47], [58]-[59] (Beazley JA; McColl and Young JJA agreeing); Lindsay v Health Care Complaints Commission [2005] NSWCA 356 at [45]-[46] (Hunt AJA; Mason P and Hodgson JA agreeing).

77. The alternative claim for relief by Mr Ibrahim should also be rejected.

Conclusion

78. In my view, the appeal should be dismissed with costs.

79. SIMPSON J: I agree with Gleeson JA.

**********

Decision last updated: 20 July 2015