Medical Council of New South Wales v Smithson

The Medical Council of New South Wales (the Council) appealed to the Supreme Court of New South Wales against a decision of the NSW Civil and Administrative Tribunal (the Tribunal). The dispute concerned the Tribunal's handling of an appeal brought by Dr. Smithson under section 159 of the Health Practitioner Regulation National Law (NSW) against a decision made by the Council under section 150 of that Law.

The primary legal issue before the Supreme Court was the essential task of the Tribunal when conducting a hearing de novo under section 159. Specifically, the Court considered whether the Tribunal had correctly understood and applied its obligations in undertaking this fresh review of the matter.

The Court found that an error had been conceded by the Council regarding the Tribunal's approach to the hearing de novo. The Supreme Court reasoned that the Tribunal's essential task in such an appeal is to conduct a complete and independent review of the Council's decision, rather than merely reviewing the Council's process or findings. Applying this principle, the Court determined that the matter should be remitted back to the Tribunal for a proper hearing de novo.

The Supreme Court ordered that the appeal be allowed, the decision of the Tribunal be set aside, and the matter be remitted to the Tribunal to be heard and determined according to law.