The practitioner in the matter of Hampshire v Health Care Complaints Commission [2021] NSWCA 283 was first registered as a medical practitioner in 1976, and had been a consultant psychiatrist since 1988.

His registration was cancelled by the NSW Civil and Administrative Tribunal in 2020 because he had sent sexually inappropriate text messages to a young woman after a medico-legal assessment of her in April 2017. He had also failed to comply with health conditions on his registration that imposed limits on his intake of alcohol and sedatives, and he was considered not competent to practice due to alcohol dependence.

This matter is not the first to clearly illustrate the importance of complying with professional standards, and the risks of failing to do so.  Hampshire v Health Care Complaints Commission [2021] NSWCA 283 is similar to the matter of Rahman v Health Care Complaints Commission [2021] NSWCA 247 (discussed in Holman Webb’s December 2021 article), in that the practitioners in question both had histories of non-compliance with conditions, which gave the respective Tribunal Members no confidence that either would adhere to further conditions imposed.

The current landscape of regulation in respect of digital payments within Australia is set to change significantly within the coming 12-18 months.  

Part of this change is the prospect of greater codification and regulation of the legal management of the varying types of payment systems - including Buy Now Pay Later (‘BNPL’), cryptocurrency, and mobile telephones; as well as traditional systems such as credit cards and eftpos.

Following on from previous articles on the same, this in-depth update from Property and Commercial Special Counsel Alex Bentancor takes a look at the current Retail and Commercial Lease landscape within NSW, as we move into another year of the COVID-19 Pandemic.

This piece covers a range of relevant information for commercial and retail landlords, as well as tenants, including:

• Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2021 (‘2021 Regulations’);
• Retail and Other Commercial Leases (COVID-19) Regulation 2022 (‘2022 Regulations’);
• “Leasing Principles” to be followed by landlords;
• Prescribed Actions by landlords that are prohibited by the Code; and
• Amended 2021 Regulations.

It is common practice for insurers to offer policies of insurance where persons or entities other than, or in addition to, the named insured receive the benefits of the relevant insurance cover as additional insureds or third party beneficiaries.  Under the Insurance Contracts Act 1984 (Cth) (‘ICA’), a third party beneficiary to a contract of insurance has a right to recover from the insurer the amount of any loss suffered by the third party beneficiary, even though the third party beneficiary is not a party to the contract.

The ICA defines “third party beneficiary” as a person who is not a party to the contract, but is specified or referred to in the contract as a party to whom the benefit of insurance cover extends.  While the ICA has attempted to provide some certainty in relation to the status of third party beneficiaries, some confusion remains surrounding the rights and status of entities claiming entitlements under policies of general insurance.

Such confusion often stems from the wording of the contracts which underly this obligation – although similarly, the policy wording and its application can create confusion at times. Regardless, it is important for parties to be aware of the risks associated with both naming and not naming interested parties on policies of insurance.

The recent NSW Supreme Court decision of Liberty Mutual Insurance Company, Australia Branch v SunWater Ltd [2021] NSWSC 1582 restates the relevant principles to be applied when considering the application of professional services exclusion clauses when construing an insurance contract.

This case note from Insurance Partner Zara Officer discusses the recent matter of Rahman v Health Care Complaints Commission [2021] NSWCA 247, an inappropriate prescribing case against Dr Abdul Bassel Rahman.

The offending conduct occurred over a period of 5 years, between 2011 and 2015. In May 2021 the NSW Civil and Administrative Tribunal decided to cancel the practitioner’s registration, and directed that he not seek a review for a period of 12 months. The practitioner appealed to the NSW Court of Appeal.

The Australian Health Practitioner Regulation Agency removed the practitioner’s name from the register soon after the Tribunal orders were made.

The case is noteworthy because it leaves no doubt that once cancellation of registration has occurred, the Tribunal cannot later order reinstatement, pending an appeal.   

The Office of the Australian Information Commissioner (‘OAIC’) has released its 2020–21 annual report and performance statement.

In the past 12 months, the OAIC has sought to establish strong privacy protections to both increase public confidence in the use of personal information, and minimise the public health risks associated with COVID-19.

In a single judge decision delivered on 7 December 2021, the Supreme Court of NSW has provided guidance on what is required of AFCA in its procedures to determine factual disputes.

In the decision of Australian Capital Financial Management Pty Limited v Australian Financial Complaints Authority Limited (2021) NSWFC 1577, Ball J in the Supreme Court of NSW made a number of findings concerning an application for judicial review of an AFCA decision. 

If you purchased a business and the sale included all of the business’s computers, would it be reasonable to expect to be able to use the software installed on those computers?

In the recent matter of QAD Inc v Shepparton Partners Collective Operations Pty Ltd [2021] FCA 615, the Federal Court ordered Shepparton Partners Collective Operations Pty Ltd (‘SPC’) to pay $1M+ in damages to software company QAD Inc (‘QAD’), after finding that SPC had infringed copyright after purchasing the business from Coca-Cola Amatil (‘CCA’) without having secured a transfer of the relevant software licence agreement.

• After the sale QAD required payment of a fee as a condition for its consent to transfer the licence, which SPC refused to pay.
• SPC denied that it had infringed copyright, claiming that it had an implied licence from QAD to use the software.
• SPC cross-claimed against Sale Co 1 Limited (‘SaleCo’) and CCA on the basis they had failed to use their ‘best endeavours’ to secure a transfer of the licence agreement.

The Supreme Court of Victoria recently came to a decision in the matter of Appanna v Medical Board of Australia [2021] VSC 679.  The doctor concerned in this matter entered into an intimate relationship with a woman in New Zealand.

The Medical Council of New Zealand subsequently suspended the doctor’s practising certificate – although the suspension was later stayed by the District Court in New Zealand on the doctor’s undertaking to practice with conditions on his registration while his professional conduct was investigated.

In September 2019, the doctor advised the Australian authorities of what had transpired in New Zealand.  The Medical Board of Australia imposed an interim suspension on the doctor’s registration in Australia, on the same basis as the suspension was imposed in New Zealand.  AHPRA revoked the suspension, on becoming aware of the New Zealand District Court decision to terminate the suspension.  However, shortly thereafter the Medical Board of Australia reimposed the interim suspension in Australia, on a different basis.

The doctor appealed to the Victorian Civil and Administrative Tribunal, but the Tribunal confirmed the suspension.  The doctor appealed to the Supreme Court of Victoria.