Tsolis v Health Care Complaints Commission

The proceeding concerned an appeal by Mr Tsolis, a psychologist, against a decision of the Health Care Complaints Commission. The dispute arose from a "Stage 1" hearing conducted by the NSW Civil and Administrative Tribunal (NCAT), which found that Mr Tsolis had engaged in unsatisfactory professional conduct and professional misconduct. Following this initial finding, one of the psychologist members of the Tribunal panel was unable to continue, leading the Deputy President to order that the inquiry proceed with the remaining three members. Mr Tsolis appealed this decision.

The primary legal issues before the Court of Appeal were whether section 165C of the National Law empowered the Deputy President to order the continuation of the inquiry with a reduced panel, and whether the "inquiry" had been completed for the purposes of that section. Further, the Court considered whether, if the order was not authorised by section 165C, the findings of unsatisfactory professional conduct and professional misconduct should be set aside.

The Court of Appeal determined that section 165C of the National Law did not authorise the Deputy President to make the order for the inquiry to continue with a reduced panel. The Court reasoned that the "inquiry" for the purposes of section 165C was not complete at the time the order was made. Consequently, the Court found that the findings of unsatisfactory professional conduct and professional misconduct made by the reduced panel were vitiated.

Despite finding that the findings should be set aside, the Court of Appeal dismissed the appeal. Leave to appeal was granted in relation to specific grounds, and Mr Tsolis was ordered to pay the Commission's costs of the proceedings.