Kirby v Health Care Complaints Commission

The appeal concerned a prohibition order made by the Health Care Complaints Commission (HCCC) against a registered health practitioner. The practitioner challenged the validity of the order, alleging that the HCCC had failed to consult the appropriate professional council as required by section 39(2) of the *Health Care Complaints Act 1993* (NSW) before issuing the order under section 41A. This failure, the practitioner argued, rendered the prohibition order invalid, particularly as the conduct in question occurred outside the practitioner's field of registration. The appeal was heard by Gleeson and White JJA and Emmett AJA.

The central legal issue before the court was whether the HCCC's failure to consult the relevant professional council, as mandated by section 39(2) of the Act, invalidated the prohibition order made under section 41A. This required the court to consider the scope of the HCCC's obligations under the Act and the consequences of non-compliance with those procedural requirements, especially when the complaint related to conduct outside the practitioner's registered professional scope.

The Court of Appeal granted leave to appeal on specific grounds, but ultimately dismissed the appeal. While the precise reasoning is not detailed in the provided text, the outcome suggests the court found that either the HCCC's consultation obligations were met, or that any failure to consult did not render the prohibition order invalid. The court ordered that the appeal be dismissed with costs.