Morsingh v Health Care Complaints Commission [2022] NSWCA 106

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Morsingh v Health Care Complaints Commission [2022] NSWCA 106 Hearing dates: 9 May 2022 Date of orders: 28 June 2022 Decision date: 28 June 2022 Before: White JA at [1]; Mitchelmore JA at [15]; Basten AJA at [103] Decision: (1) The summons seeking leave to appeal the decision of the Civil and Administrative Tribunal of New South Wales in Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 is dismissed. (2) Grant leave to appeal the decision of the Civil and Administrative Tribunal of New South Wales in Health Care Complaints Commission v Morsingh (No 3) [2022] NSWCATOD 28. (3) Treat the notice of appeal filed on 13 April 2022 in Proceedings No 2022/00106590 as the notice of appeal for which leave has been granted. (4) Vary order 2 of the orders of the Civil and Administrative Tribunal of New South Wales in Health Care Complaints Commission v Morsingh (No 3) [2022] NSWCATOD 28 by deleting "s 149C(5)" and instead inserting "s 149C(7)". (5) Otherwise dismiss the appeal. (6) The applicant is to pay the respondent's costs of both proceedings in this Court. Catchwords: APPEAL – disciplinary proceedings – finding of professional misconduct – order of NCAT cancelling registration of medical practitioner – appeal as of right restricted to question of law – challenge to acceptance of complainant's evidence – challenge to severity of disciplinary order – whether a lesser order would have served the public interest – circumstances warranting a grant of leave HEALTH – professional registration and discipline – complaints – breach by medical practitioner of patient's sexual boundaries during consultation – practitioner used consultation to indulge his own social and sexual inclinations – challenge to decision to cancel registration – whether decision unreasonable – whether failure to consider or give sufficient weight to relevant evidence – no question of law identified by applicant – no substance to challenges against factual findings Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29 Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 Health Care Complaints Act 1993 (NSW), s 4 Health Practitioner Regulation National Law (NSW), ss 139B, 139E, 149C, 150, 165L Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Decision of the Professional Standards Committee Inquiry in relation to Dr Anthony Fong, 22 November 2019 Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Hampshire v Health Care Complaints Commission [2021] NSWCA 283 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v He [2020] NSWCATOD 50 Health Care Complaints Commission v Morsingh (No 2) [2021] NSWCATOD 31 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lee v Health Care Complaints Commission [2010] NSWCA 80 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Torbey Investments Pty Ltd v Ferrara [2017] NSWCA 9 Category: Principal judgment Parties: Raymond Morsingh (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: Mr F Corsaro SC (Applicant) Ms M Cinque SC / Mr D Fuller (Respondent)