n Ng v Pharmacy Council of New South Wales [2022] NSWCATOD 49, the Tribunal found that the decisions of the Pharmacy Council were infected with legal errors in relation to bias and procedural fairness, in addition to a consideration of inapplicable law.

The case was somewhat unusual in that the appeals of husband and wife were heard together. As is common, appeals under 159 (merits review) and 159B (errors of law) were brought, but the Tribunal was of the view that the section 159 appeals were no longer necessary.

The health practitioners were successful and as is usually the case, were awarded costs.

Relevantly, the powers of health councils under section 150 and particularly 150A and 150C were discussed.

Delegates of Health Councils are expected understand the relevant statutory schemes, make full disclosure of any matters that might give rise to an apprehension of bias, and to afford procedural fairness to the practitioners.

at [37] “…..the Council accepts, that the s 150A decision made by the Council in respect of Mr Ng was infected by legal error on the basis that:

the Council misunderstood the nature of its statutory task when making a decision under s 150A of the National Law by making findings that Mr Ng had breached s 139B(h)(ii) of the National Law and thus engaged in unsatisfactory professional conduct;

the Council made a decision under s 150A of the National Law in circumstances where there was a reasonable apprehension of bias affecting the Council; and

the Council denied Mr Ng procedural fairness in making findings by reference to evidence given by Mrs Ng in a separate proceeding, without according Mr Ng the opportunity to respond to that evidence.”

Section 150 hearings are recorded as a matter of course.

The practitioners prudently attended the 150C hearing with senior counsel not just a ‘support person’.

Section 150 hearings (now considered to be emergency powers) under the National Law (NSW) are now subject to an increasingly complex body of case law (see Pridgeon and Medical Council) and persons subject to these hearings should seek proper informed legal advice.