Re Michael Bar-Mordecai

Case [2006] NSWMT 10

New South Wales


Medical Tribunal


CITATION: Re Michael Bar-Mordecai [2006] NSWMT 10
TRIBUNAL: Medical Tribunal
PARTIES: NSW Medical Board
Mr Michael Bar-Mordecai
FILE NUMBER(S): 40023 of 2006
CORAM: Rein, SC DCJ - Pasfield, Dr M - Gordon, Dr R - Mair, Dr J
CATCHWORDS: Former medical practitioner's application for review - effect of specification pursuant to s 92(3)(a) Medical Practice Act 1992 of a period within which application for review cannot be brought - whether legislative proscription can be overcome - discussion of powers of Tribunal
LEGISLATION CITED: Medical Practice Act 1992 Pt 6 Div 3, ss 87, 92, 94A, 154
Poisons and Therapeutic Goods Regulation 2002 reg 58
Supreme Court Act 1970 ss 75A, 84
Supreme Court Rules Pt 51 r 19
Uniform Civil Procedure Rules Pt 50.3(2)
Wills, Probate and Administration Act 1898
CASES CITED: Akins v National Australia Bank (1994) 34 NSWLR 155;
Bannister v Walton (1993) 30 NSWLR 699;
Bar-Mordecai v HCCC [2002] NSWCA 192;
Bar-Mordecai v Hillston [2004] NSWCA 65;
Bar-Mordecai v Rotman (NSWSC, 120009/94, BC9804682);
Bar-Mordecai v Rotman [2000] NSWCA 123;
Ex parte Currie; Re Dempsey [1970] 1 NSWR 617; (1969) 70 SR (NSW) 443;
Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 ;
Gallo v Dawson (1990) 93 ALR 479; 64 ALJR 458;
John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465;
Knaggs v Solicitors Statutory Committee (No 2) (1992) 27 NSWLR 603;
Re Zaidi [2006] NSWMT 6;
Rohatgi v Medical Tribunal of NSW (Rohatgi [No 1]) (unreported, NSWCA 20/4/94);
Saville v Health Care Complaints Commission [2006] NSWCA 298;
Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82
DATES OF HEARING: 16 November 2006
DATE OF JUDGMENT: 12 December 2006
LEGAL REPRESENTATIVES: Ms K Richardson of counsel (NSW Medical Board)
Mr Michael Bar-Mordecai (in person)
ORDERS: 1. Mr Bar-Mordecai’s Notice of Review/Appeal under s 87 of the Medical Practice Act 1992 is dismissed.; 2. Mr Bar-Mordecai’s Notice of Review/Appeal under s 94A and s 92(3)(a) of the Medical Practice Act 1992 is dismissed.; 3. Mr Bar-Mordecai to pay the costs of the NSW Medical Board.

JUDGMENT:



ORDERS

1. Mr Bar-Mordecai’s Notice of Review/Appeal under s 87 of the Medical Practice Act 1992 is dismissed.

2. Mr Bar-Mordecai’s Notice of Review/Appeal under s 94A and s 92(3)(a) of the Medical Practice Act 1992 is dismissed.

3. Mr Bar-Mordecai to pay the costs of the NSW Medical Board.

REASONS FOR JUDGMENT

1 Mr Michael Bar-Mordecai (“Mr Bar-Mordecai”) was the subject of complaints lodged by the Health Care Complaints Commission (“HCCC”) in respect of his practice of medicine in the period 1983 to 1994. The complaints were dealt with by the Medical Tribunal in a judgment of 6 September 2000. The Tribunal was constituted by Judge Cooper as Deputy Chairperson, Dr J Woodforde, Dr J Richards and Ms M Brophy, and we shall refer to that Tribunal as “ the 2000 Tribunal ”.

2 The…

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AGLC
Re Michael Bar-Mordecai [2006] NSWMT 10
Case
[2006] NSWMT 10
Decision Date

CaseChat Overview and Summary

The case of Re Michael Bar-Mordecai involved an application by a former medical practitioner seeking a review of a decision made by the NSW Medical Board. The dispute centred around the application's timeliness, which was impacted by a legislative specification under section 92(3)(a) of the Medical Practice Act 1992. The court was tasked with determining whether the legislative proscription could be overcome, thereby allowing the application to proceed.

The primary legal issue before the court was whether the specified period within which an application for review could not be brought could be circumvented. This required an analysis of the powers of the Tribunal, particularly in the context of the Medical Practice Act 1992. The court had to consider whether the Tribunal had the authority to extend the time limit for lodging a review application under the circumstances presented.

The court found that the legislative proscription was clear and unambiguous, and that the Tribunal did not possess the power to extend the period for lodging an application for review. It was determined that the statutory language left no room for the Tribunal to exercise discretion in this regard. Consequently, the court dismissed Mr Bar-Mordecai’s application for review. Additionally, the court found that the application was also invalid under sections 94A and 92(3)(a) of the Act.

As a result of the dismissal of the application, Mr Bar-Mordecai was ordered to pay the costs of the NSW Medical Board. This included both the costs of the application and the review process, reflecting the court's decision that the application was not validly made within the prescribed timeframe.

Orders

Orders of the court

1. Mr Bar-Mordecai’s Notice of Review/Appeal under s 87 of the Medical Practice Act 1992 is dismissed.; 2. Mr Bar-Mordecai’s Notice of Review/Appeal under s 94A and s 92(3)(a) of the Medical Practice Act 1992 is dismissed.; 3. Mr Bar-Mordecai to pay the costs of the NSW Medical Board.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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