Reimers v Health Care Complaints Commission [2026] NSWCATOD 19;

Condition 2 "To practise only in a Medical Council of New South Wales approved position at Post Graduate Year 1 or Year 2 level, in a hospital accredited for Prevocational Training and/or its secondment network."

Condition 3 Not to undertake any practice in anaesthetics or intensive care medicine except if in a position as per Condition 2

1. On 18 May 2023 the Medical Council changed Condition 2 as follows:

To practice only in a Medical Council of New South Wales approved position in a public hospital approved for prevocational training and/or its secondment network.

1. On 10 January 2023 the Applicant applied to the Medical Board of Australia for specialist registration in anaesthesia. This was refused on 1 August 2023.
2. It is clear from the Board's response to the Applicant that the refusal to register him as a specialist was because the Board considered him not a fit and proper person and that he was unable to practise the profession safely and competently.
3. It is to be observed that at this time, the Applicant had not practised medicine whether as a specialist or otherwise for some 20 years.
4. On 16 August 2023 the Applicant appealed the Board's refusal of his application for specialist registration to the Tribunal which dismissed the appeal on 22 December 2023. In the course of the reasons for decision, the Tribunal noted the Applicant's submission that the finding of the Tribunal in 2018 that he was a fit and proper person meant that he was a fit and proper person for the purposes of practice of medicine as a specialist anaesthetist. The Applicant further submitted that the conditions then on his registration did not prevent him from practising anaesthetics or intensive care.[4]
5. The Tribunal observed that whether or not the conditions on his registration do not prevent him from practising either in anaesthesia or intensive care, he requires the approval of the Medical Council before he could take up such a role and, even if he were to be approved for a position that might involve anaesthetics it "does not follow that it is appropriate for [the Applicant] to be publicly recognised as a specialist anaesthetist.
6. The Tribunal continued:

[82] The Tribunal accepts that the issue for determination, whether by reference to whether the Practitioner is suitable, or is a fit and proper person to be accredited as a specialist in anaesthesia, and held out to the community as being fit and proper to practise that specialty, is not determined solely by reference to the character of the Practitioner. ... The critical issue in this case is whether the Practitioner is a suitable person to hold the registration he seeks. Being suitable may involve broader considerations than those with respect to being fit and proper, but the outcome of this appeal does not turn on such a distinction, if it exists.

...

87. As is not in doubt, the Practitioner has not practised medicine in any capacity since his registration was reinstated in 2018. It has been more than 20 years since the Practitioner practised medicine. There is no evidence that there has been any relapse with respect to his previous substance abuse. The Practitioner has given no evidence of his attempts to secure positions which the conditions imposed in 2018, and subsequently varied on two occasions, enabled him to pursue. The Practitioner has called no evidence from any medical practitioner who may be willing to supervise or mentor him in anaesthesia. The Practitioner has adduced no evidence of a return to practice plan.

88. In the circumstances, the Tribunal is satisfied that the Practitioner is not a suitable or fit and proper person to be registered to practise as a specialist anaesthetist. As recorded earlier, our determination does not involve any implied finding of impropriety, or defect of character on the part of the Practitioner. As the authorities to which we have referred make clear, it is whether the Practitioner is suitable to practise the profession of anaesthesia with which we are concerned. ...

1. The Tribunal turned to a consideration of the Applicant's lack of recency of experience in the field of anaesthetics and noted that he had brought no evidence of any attempts made by him to remain or regain currency in the discipline and observed that the Applicant was no more able to practise as an anaesthetist at the time of hearing as he was in 2018 when he was found to be fit and proper and, as a result, was unable to practise competently and safely.
2. The Applicant appealed the Tribunal's decision to the NSW Court of Appeal. The appeal was dismissed. [5]
3. In considering the nature of specialist registration, the Court noted that if the Board or NCAT had granted the Applicant's application, it would not have the effect of authorising him to practise anaesthetics because the Condition on his registration required any position he might take up to be approved by the Medical Board.
4. It is of importance to the present application to note the observation of Leeming JA at [49] in which he said: " ... everything that matters in this litigation was done by the committee on behalf of the Medical Board of Australia..."
5. At [76] and [77] the Court said in the course of considering whether the Tribunal had impermissibly elided two concepts:

To reiterate, s 55 identifies nine ways in which a Board may determine that a person is not a suitable person (in each of paragraphs (a)-(g) and in (h)(i) and (ii)). If the Board so determines, then the Board must refuse registration. One of those ways is if the Board is of the opinion that the person is not a fit and proper person for the general registration in the profession. Section 60 applies s 55 to cases where an applicant is seeking specialist registration.

Thus it is clear that the Board's opinion that the person is not a fit and proper person for the relevant registration will entail that the person is not suitable, with the result that the application for registration must be dismissed.

1. This application, although not sought to be agitated at the instant hearing, seeks orders against the Commission that:

1. Full reinstatement of all registration held by the applicant subject to the following conditions: conditions that were ordered to be placed on the specialist registration of Dr Jonathan Smithson.

2. The Medical Council to pay the costs of the applicant on an indemnity basis.

1. By this application, the Applicant seeks orders against the Commission as follows:

Pursuant to s 165M of the Health Practitioner Regulation National Law, [the Respondent] seeks evidence and reasons for the finding of unfitness made in 2003. Specifically,

i) Why, in 2003, were conditions considered to be never appropriate, and

ii) What was the significance of the 2003 Tribunal labelling [the Respondent's] willingness to use drugs a deficit of character and skill

1. The Applicant contended that this application must be heard and determined before the application filed on 24 April 2025 may be heard because he said, compliance with the orders sought in the July application will provide him with necessary information to help him prepare for his application for reinstatement of his specialist accreditation.
2. The Applicant submitted that the reasons of the Tribunal's determination in November 2003 did not "contain clear nor understandable reasons for the finding of unfitness nor did it indicate with sufficient precision what evidence it relied upon to support the finding. The concerns of the Tribunal remain obscure."
3. The Applicant maintained that the effect of the Tribunal's decision was that he was drug addicted and as a consequence should be de-registered forever and no condition could be imposed to remedy the defaults. He maintained that the sole basis for his de-registration was his addiction to drugs. The Applicant's premise is that without the Tribunal giving reasons why no conditions were thought appropriate to be imposed on his registration, he cannot take steps to ameliorate the defects which led to his being de-registered and to prepare himself for re-registration.
4. Thus I turn to the Applicant's application which seeks orders against the Commission that he be supplied with evidence and reasons for the Tribunal's 2003 decision as to why he was found to be unfit and in particular why conditions on his registration would never be appropriate and what significance the 2003 Tribunal placed on his willingness to take drugs the finding of unfitness made in 2003 and why that was characterised as a defect of character and skill.
5. The foundation for the Applicant's application that the Tribunal provides "evidence and reasons" for the findings of the Tribunal decision of 2003 is said to repose in s165M of the National Law which states:

(1) As soon as practicable after making a decision on an inquiry or an appeal under this Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to--

(a) the parties; and

(b) the Council for the health profession in which the practitioner or student is registered (regardless of whether it is a party).

(2) The statement of a decision must--

(a) set out any findings on material questions of fact; and

(b) refer to any evidence or other material on which the findings were based; and

(c) give the reasons for the decision.

1. It is immediately apparent that the terms of the section concern the Tribunal that made the decision; "As soon as practicable after making a decision....the Tribunal must give a written statement of the decision". (emphasis added)
2. The Tribunal that made the decision to de-register that Applicant in 2003 gave extensive reasons. The matter before that Tribunal comprised 13 Complaints. Within those complaints were assertions of the Applicant failing to perform his duties as an anaesthetist competently, failed to complete necessary records, failed to implement resuscitation in a timely manner, failed to make accurate or complete notes. Other complaints asserted that the Applicant diverted part of the doses of pethidine and fentanyl prescribed for patients. Complaint 12 asserts that the Applicant misled the Medical Board at a meeting in which he denied he was diverting and using drugs of addiction prescribed for patients for his own use. Complaint 13 asserts that the Applicant is impaired because of his addiction to drugs.
3. The Reasons of the November 2003 Tribunal are detailed. The reasons note that the Applicant did not challenge any of the expert evidence called by the Commission concerning his work as an anaesthetist nor did he call other evidence in relation to that expert opinion. The Applicant did however provide a written statement to the Tribunal and considerable parts of it were reproduced in the reasons.
4. Each of the Complaints was found proved and the Tribunal considered the effect of the complaints taken together amounted to professional misconduct. The Tribunal then considered the submissions for the Commission and the Applicant as to the appropriate protective orders which should be made.
5. It is entirely apparent that the Tribunal fulfilled its obligations under s 165M.
6. By the orders sought, the Applicant requires the Commission to explain the effect of the 2003 decision to him.
7. The application can be swiftly disposed of. First, the Applicant brings his application against the Commission which has made no operative decision in relation to his registration other than act, as it was statutorily obliged, to investigate the complaint about the Applicant referred to it by the Medical Board of Australia and which was ultimately heard and determined in the 2003 proceedings. It has no function which would enable it to explain the reasons to the Applicant.
8. In support of its position, the Commission argued that the reasons for decision of the Tribunal in November 2003 set out its findings clearly and comprehensively and in clear compliance with its obligations to give reasons. The Commission further submitted that a proper reading of the reasons does not provide support for the Applicant's contentions that they are obscure nor do the reasons support his interpretation of the foundation of the Tribunal's orders. The answers to both questions posed in the Applicant's application are found in the reasons. I agree.
9. Secondly, the Commission argues that the orders sought by the Applicant are beyond the Tribunal's power. As Armstrong J recently observed in Shapkin v Council of the Law Society of NSW [2025] NSWCATOD 66 at [41]

NCAT is a tribunal with limited jurisdiction. Its jurisdiction and functions are derived from the NCAT Act, enabling legislation and legislative instruments beyond its enabling legislation, as well as regulations and statutory rules. NCAT cannot exercise jurisdiction beyond that set out in statute, other than its anterior jurisdiction to decide whether proceedings brought before it are within its limited jurisdiction

1. There is no power which would allow this Tribunal to order the Commission to do any of the acts he requires.
2. Section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) provides that the Tribunal may, at any stage, dismiss proceedings before it if the Tribunal considered that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.
3. In Health Care Complaints Commission v Clarke [2022] NSWCATOD 55, the Tribunal referred to Ugur v Attorney General for New South Wales[6] on the question of summary dismissal where the court considered what must be demonstrated to found the application where the Court said that a "... lack of a tenable cause of action must be clearly demonstrated."
4. The application of s55(1)(b) was considered in BDK v Department of Education and Communities [7] where the Appeal Panel said at [66]:

In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While 'misconceived' and 'lacking in substance' may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are ' frivolous ' or ' vexatious ', conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.

1. The Applicant's application is misconceived and lacks substance. The Application will be dismissed.

1. The Commission sought an order that the Applicant pay its costs of the application. Section 60(1) of the Civil and Administrative Tribunal Act 2013 provides for the making of a costs order "... only if it is satisfied that there are special circumstances warranting an award of costs". The matters to be taken into account in determining special circumstances include whether the proceedings were frivolous or vexations or otherwise misconceived or lacking in substance (s60(2)(e) or whether a party has made a claim that has no tenable basis in fact of law (s60(3)(c).
2. In considering making orders for costs, the Tribunal has accepted that, as a general rule, costs should follow the event.
3. Here I am of the view that the Applicant should pay the Commission's costs of and incidental to the proceedings. First, the claimed relief was clearly and obviously untenable and misconceived and would have been clear to the Applicant who has, in the time he has not been practising as a medical practitioner has obtained a degree in law and it may be comfortably assumed through those studies come to understand how to read and analyse judicial reasons. Even without that training, the Applicant as an apparently intelligent person could have ascertained from the reasons what gave rise to his de-registration to the extent that he does not need it explained to him (even if such an order were possible).

(1) Applicant's application filed 24 July 2025 is dismissed pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013

(2) Applicant to pay the Respondent's costs of and incidental to the proceedings.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

23 February 2026 - Parties role as Applicant / Respondent corrected. Reimers consistently referred to as the "Applicant" and the Health Care Complaints Commission consistently referred to as the "Respondent".

[1] Health Care Commission v Dr Gerrit Reimers 02/00816, 4 November 2003

[2] Reimers v Medical Council of NSW [2015] NSWCATOD 38

[3] Reimers v Medical Council of New South Wales [2018] NSWCATOD 180

[4] Reimers v Medical Board of New South Wales [2023] NSWCATOD 192

[5] Reimers v Medical Board of Australia [2024] NSWCA 164

[6] [2019] NSWCA 86

[7] [2015] NSWCATAP 129 at [66]