Yusuf v Medical Council of NSW

Cases Cited: Attai v Psychology Council of New South Wales [2022] NSWCATOD 136
Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure v Saravinovski [2024] NSWCATOD 170
Dr Renato Accardi and the Medical Practice Act of New South Wales (Medical Tribunal, District Court (NSW), 18 November 1999, unrep)
Health Care Complaints Commission v Coleman [2025] NSWCATOD 78
Health Care Complaints Commission v Limboro [2018] NSWCATOD 117
Heckenberg v Medical Council of New South Wales [2021] NSWCATOD 80
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Puri v Medical Council of New South Wales [2024] NSWCATOD 87
Reimers v Medical Board of Australia [2024] NSWCA 164
Tsolis v Health Care Complaints Commission [2024] NSWCA 284
UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852

Texts Cited: Explanatory Note, Medical Practice Amendment Bill 2000 (NSW)

Category: Procedural rulings

Parties: Dr Oluwatoyin Yusuf (Appellant)
Medical Council of NSW (Respondent)

Representation: Solicitors:
Daniel Hakim & Associates (Appellant)
Health Professional Councils Authority (Respondent)

File Number(s): 2026/00035502

Publication restriction: Nil

REASONS FOR DECISION

1. On 27 January 2026, the appellant lodged an external appeal against a decision of the Medical Council of NSW (the Council) made on 19 November 2025. The Council’s decision, to impose conditions on the appellant’s registration, on an interim basis, was made following a hearing under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law). However, those conditions have since expired, rendering the appeal moot.

2. At the directions hearing on 1 July 2026, the appellant indicated that he sought to withdraw the appeal (the withdrawal application). The respondent consents to the appeal being withdrawn and dismissed, with no order as to costs.

3. At the directions hearing, I made programming orders, to the following effect:

4. to vacate the hearing that had previously been scheduled;

5. to vacate earlier procedural orders; and

6. to dispense with a hearing in relation to the withdrawal application.

7. Before the matter may be finally disposed of, the questions of what is the Tribunal’s statutory source of power to finalise an appeal without a hearing, and how it may be exercised, must be answered. The parties did not seek to be heard on these issues, but I refrained from dismissing these proceedings until these questions were answered.

8. This decision sets out the reasons why I allowed the withdrawal application and dismissed the appeal.

The appeal that is sought to be withdrawn

6. The appeal lodged by the appellant is an appeal under s 159 of the National Law. Appeals under s 159 are external appeals (see note to s 159(1)).

7. As the appellant sought to withdraw the appeal at an early stage of the proceedings, neither party lodged any material or submissions. All that is before the Tribunal is the external appeal form, which annexes the Council’s written reasons for decision dated 19 November 2025.

If an appellant withdraws an external appeal made under s 159 of the National Law, what is the Tribunal’s source of power to terminate or dismiss the appeal?

8. The first question is whether there are any provisions under the National Law which apply to the withdrawal; or whether the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) instead applies.

9. Clause 12(1) of Sch 5D to the National Law (clause 12) provides as follows:

12 Certain complaints may not be heard [NSW]

(1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if—

(a) any of the following circumstances apply—

(i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal;

(ii) the person about whom the complaint is made ceases to be a registered health practitioner or student;

(iii) the complaint before the Committee or the Tribunal is withdrawn; and

(b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue.

[Emphasis added]

10. As is immediately apparent by its terms, clause 12 concerns both inquiries and appeals. If it is engaged, then two things follow:

11. One of the circumstances in cl 12(1)(a) must apply.

12. Additionally, the Tribunal must form the opinion that it is not in the public interest for the appeal to continue.

13. Section 55(1)(a) of the NCAT Act provides as follows:

55 Dismissal of proceedings

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate…

12. If this section applies, it would be a simple exercise to dismiss the appeal, on receiving notification that the appellant seeks to withdraw it.

Does s 55 or clause 12 apply?

13. Section 35 of the NCAT Act provides that “each of the provisions of this Part is subject to enabling legislation and the procedural rules”. Contained in the Part to which s 35 applies (Part 4) is s 55. Relevantly, s 55(1)(a) of the NCAT Act enables the Tribunal to dismiss, at any stage, any proceedings before it if the applicant or appellant withdraws the application or appeal to which the proceedings relate.

14. The clear effect of s 35 of the NCAT Act is that clause 12 applies ahead of s 55(1)(a) of the NCAT Act, to the extent that they touch on the same subject-matter.

15. In Puri v Medical Council of New South Wales [2024] NSWCATOD 87, the Tribunal considered whether cl 7 of Sch 5D to the National Law and s 64 of the NCAT Act were inconsistent. In that case, the Tribunal concluded that cl 7 “should not be read as shutting out” s 64 of the NCAT Act; rather, they each applied at different stages of a proceeding under the National Law. Clause 7 did not “cover the field” and therefore there was room to apply s 64 of the NCAT Act, where cl 7 did not operate.

16. Here, the question is whether clause 12 shuts out s 55(1)(a) of the NCAT Act, or otherwise affects its operation, in relation to appeals.

Does clause 12 apply to appeals at all?

17. Clause 12, by its terms, applies to appeals. It is notorious that I must give the word “appeal” some work to do: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71].

18. The real question is what work does clause 12 do, in the face of an appeal that is sought to be withdrawn.

Statutory construction under the National Law

19. When interpreting a provision of the National Law, the interpretation that will best achieve the purpose or object of the National Law is to be preferred: National Law, Sch 7, cl 7. Further, when exercising its division functions for the purposes of the National Law, the Tribunal is to observe the objectives and principles in ss 3 and 3A of the National Law: NCAT Act, Sch 5, cl 9; Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14].

20. Under the National Law, the protection of the health and safety of the public must be the paramount consideration: National Law, s 3A(1). The scheme is to operate in a transparent, accountable, efficient, effective and fair way: National Law, s 3A(2)(a). The Tribunal must exercise its functions having regard to those objectives and guiding principles: National Law, s 4.

21. Further, the Tribunal has a duty to hear and determine inquiries and appeals under the National Law expeditiously: National Law, Sch 5D, cl 11(1). It must do so in a way that facilitates the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(1).

Legislative history of clause 12

22. It is instructive to consider the legislative history of clause 12.

23. The current version of clause 12 has been in place since the commencement of the National Law in 2010. However, its origins go back much further.

24. The earliest version of clause 12 was found in the Medical Practice Act 1992 (NSW) as enacted. In that Act, clause 12 appeared in Sch 2 (Proceedings before a Committee or the Tribunal) and provided:

Certain complaints may not be heard

12. (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if:

(a) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; or

(b) the person about whom the complaint is made ceases to be a registered medical practitioner.

(2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the practitioner concerned dies.

25. It can be observed that there was, on its enactment, no equivalent ground to cl 12(1)(a)(iii) (in relation to the withdrawal of the complaint); nor was there a requirement that the Committee or Tribunal find that it is not in the public interest for the inquiry or appeal to continue before an inquiry or appeal can be terminated.

26. In Dr Renato Accardi and the Medical Practice Act of New South Wales (Medical Tribunal, District Court (NSW), 18 November 1999, unrep) (Accardi), the Medical Tribunal noted that there was then no statutory provision under the Medical Practice Act 1992 (NSW) which provided for a complaint to be withdrawn and that, in those circumstances, the complainant was “obliged to prepare for a full hearing as much as the respondent was”.

27. Notably, the following year, the NSW Parliament passed the Medical Practice Amendment Bill 2000 (NSW), which, among other things, amended cl 12 of Sch 2 to the Medical Practice Act. Sub-clause (1) was amended to add paragraph (c), allowing for an inquiry or appeal to be terminated if “the complaint before the Committee or the Tribunal is withdrawn”.

28. At the time of the amendment, the Medical Practice Act 1992 provided for several different types of appeals which are analogous to the types of appeals now available under ss 158, 159, 160 and 175 of the National Law.

29. The Explanatory Note to the Medical Practice Amendment Bill 2000 stated that the Bill (emphasis added):

“will allow a Committee or the Tribunal to terminate an inquiry or appeal, or decide not to hold it, if a complaint is withdrawn”.

30. This extract from the Explanatory Note indicates that the amendment was intended to cover both inquiries and appeals; yet, as the express words of the amendment refers only to “complaints” being withdrawn (which for reasons set out below, is apt to refer to inquiries, but not so obviously to appeals), on a literal reading, it is difficult to interpret the amendment as indeed applying to appeals.

31. At this juncture, it is relevant to note that the Court of Appeal has pointed out the infelicitous drafting of parts of the National Law on a number of occasions: Reimers v Medical Board of Australia [2024] NSWCA 164 at [62]; Tsolis v Health Care Complaints Commission [2024] NSWCA 284 (Tsolis) at [14]-[20].

Application of clause 12 to inquiries

32. Before embarking on any further consideration, it is relevant to say something about the application of clause 12 to inquiries.

33. Part 8, Division 3 governs complaints under the National Law. The National Law provides that a complaint may be made about either a registered health practitioner or a student (ss 144, 144A). Relevantly, s 144 provides, exhaustively, the grounds for complaints which may be made about a registered health practitioner. The grounds are (a) criminal conviction or criminal finding, (b) unsatisfactory professional conduct or professional misconduct, (c) lack of competence, (d) impairment, or (e) not a suitable person.

34. Both the National Law and the Health Care Complaints Act 1993 (NSW) make provision for the referral of complaints to the Tribunal. Under the National Law, a complaint may be referred to the Tribunal by a Council under s 145B(1)(c) or by the Health Care Complaints Commission (HCCC) under s 145C(1)(a).

35. Section 39 of the NCAT Act provides that “an application to the Tribunal includes a complaint, referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Tribunal for a decision”. Accordingly, in the Tribunal, the mechanism for referring or initiating the prosecution of a complaint for determination under the National Law (and in disciplinary proceedings under other legislation) is to file an application. In such proceedings, the application is styled as an “Application for Disciplinary Findings and Orders”. In the case of proceedings brought by the HCCC or the Council under the National Law, the application annexes a document styled as a “Complaint”, which sets out the grounds for the complaint and the particulars. This document sets out the basis for the disciplinary findings and orders sought.

36. Under the National Law, where it relates to a complaint, the expression “inquiry” describes the process for dealing with a complaint: see for instance Tsolis at [24]. An inquiry is akin to a hearing and can be conducted by the Tribunal (s 165B, s 165I), the Council (s 145B(1)(e), s 148A) or a Committee (s 169A, s 171). If conducted to its conclusion, an inquiry results in findings and/or a decision in relation to the health practitioner or student the subject of the inquiry (s 148H, s 165M, s 171E).

37. Taking the foregoing into account, when there is an application before the Tribunal for disciplinary orders, it is apt to refer to the originating process – i.e., the application (which, as mentioned, is accompanied by a document setting out the grounds for the orders sought) – as a complaint. The inquiry is the process by which the Tribunal determines the complaint. It follows from this that the applicant might be aptly referred to as the complainant. If this is correct, it is easy to see what work cl 12(1)(a)(i) (which refers to a complainant) and (iii) (which refers to a complaint) does in the context of an “inquiry” into a complaint.

38. There can be no doubt that when the Tribunal considers early termination of an inquiry on the withdrawal of the application for disciplinary findings and orders (aptly referred to as a complaint), clause 12 is engaged. The withdrawal of the application satisfies clause 12(1)(a)(iii). The Tribunal must then be satisfied of the public interest requirement in cl 12(1)(b). It is not a matter for the parties to simply consent to the withdrawal of the proceedings: Health Care Complaints Commission v Coleman [2025] NSWCATOD 78 at [29]-[34].

39. To interpret “complaint” in clause 12, when it concerns an inquiry, as referring to the application before the Tribunal, accords with the paramount consideration of the protection of the health and safety of the public read with the objectives and other guiding considerations (ss 3, 3A, 3B) under the National Law, under which the national registration and accreditation scheme is to operate in an “efficient, effective and fair way”. It so accords, by allowing the early termination of inquiries; but only after being satisfied that continuation of the proceedings is not in the public interest.

Application of clause 12 to appeals

40. Where there is an appeal that has become inutile, it must be possible to terminate it early. To put the parties and the Tribunal through an arid exercise would not seem consistent with the guiding principles of the National Law.

41. One avenue is if the registered practitioner about whom the complaint is made ceases to be registered: cl 12(1)(a)(ii). However, if this is the only avenue for early termination, it would substantially curtail the ability of appeals to be finalised before they have been heard and determined, irrespective of whether there is no public interest in their continuation. This would not be consistent with the requirement for efficiency under the guiding principles.

42. Another avenue is to read clause 12 as not touching on the withdrawal of appeals, and to leave the withdrawal of an appeal, fully, within the purview of s 55(1)(a) of the NCAT Act. However, that would not accord with the clear intention of the amendment, which was expressly said to apply to appeals (as discussed above at [29]). It also may not accord with the paramount consideration for the appeal to be withdrawn without the Tribunal, first, considering the impact on the public interest.

43. Assuming then, as the chapeau to clause 12 expressly directs and as the extrinsic materials to the amendment indicate, that cl 12(1)(a)(iii) applies to the withdrawal of an appeal, how then is cl 12(1)(a)(iii) to be read?

The meaning of “complaint” in the context of an appeal

44. As explained above, under the National Law, an inquiry is the term given to the process by which the Tribunal hears and determines the outcome of a complaint. Read in context, a complaint is the term given to the application (the originating process) before the Tribunal conducting the inquiry. Using the same logic, a complaint, in the context of an appeal, can be thought of as the process by which the appeal is commenced in the Tribunal. The originating process for an appeal under the National Law is styled as an External Appeal Form. Accordingly, the document styled as the External Appeal Form is the “complaint before the … Tribunal” in an appeal under the National Law. If this is correct, then the appellant is the complainant, for the purposes of cl 12(1)(a)(iii).

45. Borrowing the words of White JA in UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852 at [62], it “does not do too much violence to the text” to construe “complaint” in cl 12(1)(a)(iii), which apprehends the originating process that commences an inquiry, to be interpreted to also apprehend the originating process that commences an appeal.

46. The construction that I suggest is consonant with the historical position, pays regard to the paramount and guiding principles under the National Law and to the need for efficiency and certainty.

47. For completeness I note that the Tribunal has, on occasion, assumed that clause 12 applies to the withdrawal of appeals: Heckenberg v Medical Council of New South Wales [2021] NSWCATOD 80 (Heckenberg*)*; Attai v Psychology Council of New South Wales [2022] NSWCATOD 136. No reasons for this were explored.

How is an appeal finalised?

48. Once an appeal or inquiry is terminated pursuant to clause 12, it is appropriate to make an order bringing the proceedings to an end: to allow or dismiss the proceedings. In Heckenberg the order made was to dismiss the appeal. In other proceedings where clause 12 has been relied on, the order made has been to dismiss the proceedings, expressly, under s 55(1)(a) of the NCAT Act.

49. Once the preconditions for clause 12 have been satisfied, the Tribunal is empowered to terminate the proceedings. The effect of the termination of the appeal is that it brings the proceedings to a close. However, for abundant clarity, the appeal may be dismissed, without reliance on the express power in s 55(1)(a) of the NCAT Act.

The role of s 55 of the NCAT Act

50. While clause 12 might be said to be engaged where an appeal is withdrawn, it is more difficult to see that it has operation in other cases where s 55 of the NCAT Act might apply – for example, where it is claimed that a proceeding under the National Law is vexatious (s 55(1)(b)).

Application to this case

51. In this case, the interim conditions were applied after a hearing under s 150 of the National Law where the imposition of conditions does not have a clear connection to a complaint as described under s 144 of the National Law. If, as I prefer, clause 12 nevertheless applies, then by withdrawing the appeal, the “complaint before the …Tribunal is withdrawn”.

52. The parties did not dispute that if clause 12 applied, the public interest favoured discontinuation of the appeal, as the underlying subject of the appeal is no longer in existence. The respondent indicated that to the extent that the Tribunal is required to be satisfied that it is not in the public interest for the appeal to continue, they did not seek to be heard against that proposition.

53. I am satisfied that the “complaint” is withdrawn and cl 12(a)(iii) is satisfied. I am also satisfied that there is no public interest in continuing with this appeal; which is arid.

Alternative position

54. I am conscious that there is room for doubt in the construction and application of clause 12 that I have preferred.

55. If I am not correct, then it would appear that s 55(1)(a) would apply, without regard to clause 12. In such a case, the appeal could simply be withdrawn and dismissed, without the Tribunal having to consider the public interest.

56. I do not see the position being as it was in Accardi, that there is no way to bring an arid appeal to an early close; noting the changes to the National Law and clause 12 and the introduction of s 55 of the NCAT Act.

Conclusion

57. Pursuant to clause 12, the Tribunal has power to dismiss the appeal which is withdrawn.

58. If clause 12 does not apply to this appeal, then s 55(1)(a) of the NCAT Act would apply in any event.

Costs

59. No application for costs was made and no order is made.

Dispensing with a hearing

60. On 1 July 2026, I made an order dispensing with a hearing. These are my reasons for that order.

61. The main question for determination is what is the statutory source of power which enables the present appeal to be withdrawn. This raises issues of statutory interpretation. It was, therefore, immediately apparent that the issues for determination may be adequately determined in the absence of the parties.

62. I gave the parties an opportunity to make submissions about the proposed order to dispense with a hearing. The parties did not seek an oral hearing of the withdrawal application and submitted that the matter could adequately be determined on the papers. The decision to dispense with a hearing took into account the principles of open justice (see, for instance, Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure v Saravinovski [2024] NSWCATOD 170 at [19]-[21]) and the imperative that the Tribunal resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible (NCAT Act, s 3(d)). This is consistent with cl 11 in Sch 5D to the National Law, which requires the Tribunal to act expeditiously.

Orders

63. The orders are:

64. The appeal is terminated, pursuant to clause 12 of Schedule 5D to the Health Practitioner Regulation National Law (NSW).

65. The external appeal lodged on 27 January 2026 is dismissed.

66. No order as to costs.

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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. Registrar