Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Luo (No 2) [2025] NSWCATOD 7 Hearing dates: 13 and 14 May 2024 Date of orders: 30 January 2025 Decision date: 30 January 2025 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Decision: (1) The respondent's application for summary dismissal is dismissed. (2) The respondent's challenge to the expertise of the applicant's expert witness Dr Carolyn Ee is dismissed, and Dr Ee's three reports relied on by the applicant may be tendered subject to objections by the respondent as to their content and relevance. (3) Costs are reserved. Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal – challenge to expertise of expert Legislation Cited: Civil and Administrative Act 2013 (NSW), s 55 Health Care Complaints Act 1992 (NSW), ss 3, 4, 13 Health Practitioner Regulation National Law (NSW), ss 145, 145C, 145D, 149C, 243; cl 2 of Sch 5D Cases Cited: BDK v Department of Education and Communities [2015] NSWCATAP 129 Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169 Health Care Complaints Commission v Clarke [2022] NSWCATOD 55 Health Care Complaints Commission v Hill [2022] NSWCA 270 Health Care Complaints Commission v Hill [2022] NSWCA 270 Health Care Complaints Commission v Kavierieris [2024] NSWCATOD 40 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Luo [2025] NSWCATOD 5 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Category: Procedural rulings Parties: Health Care Complaints Commission (Applicant) Yun Sen Luo (Respondent) Representation: Counsel: P Aitken (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Yun Sen Luo, self-represented (Respondent) File Number(s): 2023/00361650 Publication restriction: The Tribunal made an order pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the disclosure to any person or entity of the names, addresses or any other identifying information of the persons listed in the Schedule to the Amended Complaint filed by the applicant. REASONS FOR DECISION Introduction 1. By application for disciplinary findings and orders filed 14 November 2023 (Application), the applicant (Commission) sought the following orders under the Health Practitioner Regulation National Law (NSW) (National Law): 1. cancellation of the respondent's (practitioner's) registration as a physiotherapist pursuant to s 149C(1)(b) of the National Law with a non-review period of five to eight years; 2. a prohibition order prohibiting the practitioner from providing a health service in s 4 of the Health Care Complaints Act 1992 (NSW) (HCC Act) for a period of five to eight years; 3. costs. 1. The matter was conducted as a Stage 1 proceeding on 13, 14, 15, 16, 17, 20, 21 and 22 May 2024 2. For the reasons set out in Health Care Complaints Commission v Luo [2025] NSWCATOD 5 (Substantive Decision), the Tribunal found Complaints One, Three and Four agitated by the Commission established. 3. These reasons deal with: 1. the practitioner's application for summary dismissal of the Commission's application; made at the outset of the hearing; 2. the practitioner's objections to Dr Carolyn Ee's expertise, and thus to the tender of the three reports of Dr Ee relied on by the Commission, also agitated at the outset of the hearing. 1. These reasons assume a knowledge of the Substantive Decision, and employs definitions contained in that decision. Background 1. The Commission filed an Amended Complaint consisting of four separate complaints on 10 May 2024. The four complaints, the background to and the Particulars of those complaints are all set out in the Substantive Decision. Application for Summary dismissal Introduction 1. At the outset of the hearing, the practitioner made an application that the Commission's application be summarily dismissed. 2. Before the practitioner made his submissions, I explained to him the role and function of the Tribunal in undertaking our task. I explained that we were not exercising any criminal jurisdiction, that we were not reviewing the criminal trial or outcome and that our role, at the Stage 1 hearing, was simply to determine whether or not the Particulars to the four complaints, and the complaints themselves, were established on the evidence before the Tribunal. I explained that the proceedings before the Tribunal were entirely separate to the criminal trial. In particular, I explained that the Tribunal was not investigating the cause of death of Patient A as the Commission made no allegations about the cause of her death, less still that the practitioner caused her death. I noted that the only reference to the death of Patient A was in the background to the Amended Complaint which simply noted that Patient A died on 8 June 2018. 3. While trying to assist the practitioner with that explanation, the practitioner observed that because the Commission's application was based on his criminal trial and the evidence at that the trial, it could not be said that the two proceedings were separate. The practitioner said that even though the Tribunal proceedings had a different goal, because they were based on the criminal proceedings one could not say that they were not connected to those proceedings. 4. In response, Mr Aitken for the Commission noted that causation was not required to be proved as part of the Commission's Amended Complaint, and in that sense the cause of death was not an issue; the context in which Patient A was being treated starts with what the Commission submits is outside the scope of the practitioner's practice, that is, a recommendation for Patient A to cease her Western medication for high blood sugar. Further, Mr Aitken submitted that on any view of the case, that medication must have been medication for a diabetes-related condition. 5. The practitioner submitted that there was a connection in all aspects of the matters including the causation of the death of Patient A, negligence and extended duty of care. Practitioner's written submissions 1. The practitioner's written submissions seeking summary dismissal of the proceedings are set out in his document titled "Defence Submissions and Reply" filed 12 April 2024 (Submissions). This is a 245 page document comprising 1,039 paragraphs and multiple sub-paragraphs. 2. In summary, the practitioner's principal reason for seeking summary dismissal of the proceedings set out in par [1], namely: 1. [The Commission] is unreasonable and wrong and illegally to institute the proceedings of prosecution based on the judgement of criminal trial. [The Commission] ought to discontinue the proceedings or withdrawal this application, and or the [Tribunal] ought to dismiss the application [on the basis] of [the] following grounds: (typographical errors as in original) 1. The respondent then sets out, over some 10 pages, some 115 grounds for seeking an order of dismissal. These are set out in Attachment A. Practitioner's oral submissions 1. I then asked the practitioner if he wished to say anything further in addition to his written submissions. I also asked him to identify any particular law he relied on, such as may be found in the Civil and Administrative Act 2013 (NSW) (NCAT Act) or the National Law. I also asked him to identify what law if any the Commission was breaching for him to submit that the Commission was acting illegally by instituting the proceedings. 2. The practitioner said that "the main point" was that the Commission used Dr Ee as a witness to give evidence illegally. I asked the practitioner to explain what he meant by that. In response he referred me to p 45 of his Submissions under the heading: (iv) The [Commission] is illegal in proceedings to engage the committee of the Chinese Medicine Board to be expert witness for this application. [1] 1. The practitioner also told me that he objected to Dr Ee giving evidence as she was a member of the Chinese Medicine Board (Board). 2. The practitioner's Submissions state (footnotes omitted): 106. According to the APRHA prosecution guideline, Chinese medicine board, and or Chinese Medicine Council NSW, and or HCCC, can not engage the committee member of Chinese Medicine Board as Expert witness for prosecution. 107. Expert evidence must be provided by a person who is independent from both the Board and the practitioner the subject of the proceeding, according to the Regulatory Guide April 2021 at p56. 108. The HCCC is on behalf of Chinese Medicine Board and or Chinese Medicine council to do this application, as Chinese Medicine council agreed to engage Dr Carolyn Ee as Expert witness of Chinese herbal medicine practitioner. 109. Hence, HCCC and or Chinese Medicine council are illegal in proceedings to engage Dr Carolyn Ee as Expert witness for this prosecution, as Dr Carolyn Ee is or has been the committee member of Chinese Medicine Board. 110. The Court of NCAT must not allow Dr Carolyn Ee to be the Expert witness for this application, and all Expert Reports of Dr Carolyn Ee must be inadmissible and excluded. 1. I asked the practitioner whether the engagement of Dr Ee to give evidence for the Commission, which he claimed was in breach of APHRA "prosecution guidelines" [2] , was the primary basis on which he asserted that the institution of the proceedings was illegal. He said that there were other grounds, including the opinions formed by the experts which were obtained by illegal methods. By this the practitioner said that he meant their opinions in so far as they related to the cause of death of Patient A. 2. At this point, I explained to the practitioner that I needed to be satisfied that the Tribunal had the power to dismiss the proceedings as sought. I explained that the primary piece of legislation dealing with the Tribunal's role and function was the NCAT Act and that its powers were also set out in that Act. I noted that s 55 of the NCAT Act gave the Tribunal the power to dismiss proceedings in four circumstances, if the proceedings were frivolous, vexatious or otherwise misconceived or lacking in substance: NCAT Act, s 55(1)(b). 3. Through a lengthy discussion with the practitioner, doing the best I could to assist him within the limits of my role, it became apparent that the practitioner was relying on the totality of his Submissions in support of his application for the Tribunal to dismiss the proceedings. 4. I suggested to the practitioner that these grounds could be ordered into the following categories. Those categories were: 1. the Commission instituted the present proceedings "based on the judgment of the criminal Trial"; 2. the expert reports of Dr Carolyn Ee, including her lack of expertise; 3. other expert reports in so far as they related to the cause of death of Patient A; 4. the alleged complaints made by the Commissions are "unreasonable and wrong and or illegal and cannot be established and not be proved"; 5. the judgment of Judge Pickering SC, where the practitioner gave dozens of examples in his Submissions where he submits that his Honour erred or was otherwise wrong, in particular in relation to the extent of the practitioner's duty of care; 6. the acts of the Coroner; and 7. the Commission's failure to prosecute Dr Ee, the ICU doctors at Hornsby Hospital who treated Patient A, the Coroner, the Therapeutic Goods Administration and NSW Health before continuing the proceedings. 1. The practitioner agreed that these categories were an adequate summary of his Submissions and adequately grouped his reasons for seeking dismissal of the proceedings. Commission's submissions The Commission instituted the present proceedings "based on the judgment of the criminal Trial" 1. The first category of grounds is that the Commission instituted the present proceedings "based on the judgment of the criminal Trial". This is a reference to the charge of manslaughter which was brought against the respondent by the NSW Director of Public Prosecutions. While the practitioner was found not guilty by Judge Pickering SC (who presided in a "judge alone" trial), the respondent says that his Honour's treatment of causation, negligence and his Honour's fact finding were all erroneous. 2. The Commission made the following submissions in relation to this category of submissions. 3. First, the Commission did not rely on "the judgment of the criminal trial" in these proceedings. 4. Secondly, the Commission has powers and obligations under the Health Care Complaints Act 1993 (NSW), which are conveniently summarised in Health Care Complaints Commission v Hill [2022] NSWCA 270 at [18], [23], [24], [28] and [29] and [31] to [36], then [377] and following, discussing the powers and obligations of the Commission under ss 145, 145C, 145D and 149 of the National Law. 5. The Commission also emphasised the judgment of the Court of Appeal decision in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 5. The expert reports of Dr Carolyn Ee, including her lack of expertise 1. The second category of grounds relied on by the practitioner relates to the Commission's expert De Carolyn Ee. The Commission obtained two reports from Dr Carolyn Ee for use in the Tribunal proceedings. Dr Ee also prepared an expert report for use in the criminal trial. The practitioner makes a litany of complaints against Dr Ee, including that she is not qualified to give expert evidence, that it was "illegal" of the Commission to retain her and in breach of APHRA Guidelines, and that Dr Ee was wrong in many aspects of her opinions. 2. The Commission submitted that it was premature to deal with the matter of Dr Ee's expertise and objections to Dr Ee's expert evidence prior to the hearing and those matters were not a proper basis on which to seek summary dismissal of the proceedings. Other expert reports in so far as they related to the cause of death of Patient A 1. The third category of grounds relates to the other experts relied on by the Commission. Here, the practitioner submits that the experts were all wrong in their conclusions about Patient A's cause of death. 2. The Commission submitted that this was simply an irrelevant consideration, as the cause of death of Patient A was not an issue that arose under the Commission's Complaint. The alleged complaints made by the Commissions are "unreasonable and wrong and or illegal and cannot be established and not be proved" 1. The fourth category of grounds relate to the practitioner's assertions that each the four complaints agitated by the Commission "are unreasonable and wrong and or illegal and cannot be established and not be proved". 2. The Commission submits that this issue is the very essence of what the Tribunal is required to consider, and that this is not a proper basis for a summary dismissal application. The judgment of Judge Pickering SC 1. The fifth category of grounds relates to Judge Pickering's judgment, the practitioner making many submissions where he says his Honour erred or was wrong, in particular in relation to his Honour's findings as to the practitioner's duty of care, his negligence and the cause of death of Patient A. 2. Mr Aitken submitted that this was completely irrelevant, and noted that the Commission was not going to tender a copy of his Honour's judgment. The acts of the Coroner 1. The sixth category of grounds relates to the Coroner who conducted an inquest into Patient A's death. The practitioner says the Coroner "was in serious breach of the requirements of autopsy report". 2. The Commission submits that this category of grounds is also "completely irrelevant", and noted that no materials of the Coroner are before the Tribunal. The Commission's failure to prosecute Dr Ee, the ICU doctors, the Coroner, the TGA NSW Health before continuing the proceedings. 1. The seventh group of grounds relates to the Commission's failure to prosecute Dr Ee, "the medical doctor" (not otherwise defined), "the ICU medical doctors", the Coroner, the Therapeutic Goods Administration and the Health Department before continuing the proceedings. 2. The Commission submits that these grounds are completely irrelevant. The Commission submits that s 3 of the HCC Act provides that: (1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of-- (a) receiving and assessing complaints under this Act relating to health services and health service providers in New South Wales, and (b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and (c) prosecuting serious complaints, and (d) resolving or overseeing the resolution of complaints. (2) In the exercise of functions under this Act the protection of the health and safety of the public must be the paramount consideration. Oral submissions in reply by the practitioner 1. The practitioner made oral submissions in reply to those of the Commission. By way of overall summary, these were not responsive to Mr Aitken's oral submissions. Rather, the practitioner repeated submissions that he had made in his written submissions relating broadly to Dr Ee, the cause of death of Patient A, the acts of the Coroner, and an unjustified allegation that Dr Ee had relied on the wrong standard in her reports, and the failure of the Commission to prosecute all those persons who referred to in his Submissions. He also referred me to inquests of other persons where the Coroner had found that those persons died of natural causes. 2. In particular, the practitioner said that he wanted to prove the cause of death of Patient A. I pause to observe that that position was entirely inconsistent with the practitioner's own position that any evidence going to cause of death should be excluded. 3. After hearing lengthy oral submissions about the cause of Patient A's death from the practitioner, I observed to the practitioner that if he wished to agitate issues about Patient A's cause of death, I would have to allow the Commission's evidence (to which the practitioner objected) which related to the cause of death. I put directly to the practitioner that I could not see how it could be fair to the Commission if he could make arguments and present evidence about the cause of death of Patient A, but the Commission denied that opportunity. 4. That said, the Commission made it clear that it was not inviting the Tribunal to make any findings as to whether or not the practitioner caused the death of Patient A. Relevant law and principles 1. The first matter to note that the Tribunal's powers to dismiss an application are set out in s 55 of the NCAT Act. That section relevantly provides: 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, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. 1. The only possible relevant power for the practitioner's application is s 55(1)(b), that is, that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. 2. No legal basis for the application was identified by the practitioner, either under the NCAT Act, the National Law or any other legislation. Nevertheless, I am prepared to proceed on the basis that the arguments made by the practitioner can be agitated under s 55(1)(b). 3. As the Tribunal noted in Health Care Complaints Commission v Clarke [2022] NSWCATOD 55, the expressions in s 55(1)(b) were usefully interpreted in the decision of the Appeal Panel in BDK v Department of Education and Communities [2015] NSWCATAP 129 at [66] as follows: 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 Tribunal further noted in Clarke at [31]: Although discussed in the context of the Uniform Civil Procedure Rules, the decision of the New South Wales Court of Appeal in Ugur v Attorney General for New South Wales [2019] NSWCA 86 is instructive in setting out the principles underpinning an application for summary dismissal on the grounds agitated by the practitioner. In Ugur the court said: One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications. The lack of a tenable cause of action must be clearly demonstrated. Various formulations have been used to describe the clarity that must exist before a claim can be summarily dismissed (see for example, Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 ("Dey"); General Steel Industries Inc v Commissioner For Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128–129; Fancourt v Mercantile Credits Limited (1983) HCA 25; (1983) 154 CLR 87 at 99; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; [2000] HCA 41 at [57]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] ("Spencer v Commonwealth"); and O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71; 16 BPR 31,705 at [67].) If there is a real question either of fact or of law, then the application for summary dismissal must fail (Dey v Victorian Railways Commissioners at 91). (emphasis as in original) 1. Relevant provisions of the National Law are as follows: 145 Complaints to be dealt with expeditiously [NSW] All complaints are to be dealt with expeditiously. 145C Courses of action available to the Commission on complaint [NSW] (1) The following courses of action are available to the Commission in respect of a complaint made to the Commission, or that the Commission has decided to make, about a registered health practitioner or student— (a) the Commission may refer the complaint to the Council for the health profession in which the practitioner or student is registered or, after consultation with a Council, to a Committee or the Tribunal; (b) the Commission may refer the complaint for conciliation or deal with the complaint under Division 9 of Part 2 of the Health Care Complaints Act 1993; (c) the Commission may refer the complaint to another entity, including, for example, a National Board; (d) the Commission may determine that no further action should be taken in respect of the complaint; (e) the Commission may take any other action that it can take under the Health Care Complaints Act 1993. (2) If the Commission refers a complaint to a Committee or the Tribunal, the Commission must inform the Council accordingly. 145D Serious complaints must be referred to Tribunal [NSW] (1) Both a Council for a health profession and the Commission are under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's or student's registration. (2) However, either the Council or the Commission may decide not to refer the complaint to the Tribunal if of the opinion the allegations on which the complaint is founded (and on which any other pending complaint against the registered health practitioner or student is founded) relate solely or principally to— (a) for a practitioner, the physical or mental capacity of the practitioner to practise the practitioner's profession; or (b) for a student, the physical or mental capacity of the student to undertake clinical training in the health profession in which the student is registered. (3) If the Council decides not to refer the complaint to the Tribunal, the Council must instead refer the complaint to a Committee or Impaired Registrants Panel. (4) If the Commission decides not to refer the complaint to the Tribunal, the Commission must instead refer the complaint to the Council. (5) This section does not require the Council or the Commission to refer a complaint the Council or Commission thinks is frivolous or vexatious. Note— A referral under this section is an application made to the Tribunal for a general decision for the purposes of the Civil and Administrative Tribunal Act 2013. 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if— (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal. 1. The Commission relied on the following passages of Basten AJA (with whom Ward P and Mitchelmore JA agreed) in Health Care Complaints Commission v Hill [2022] NSWCA 270 at [18], [23], [24] and [28 ] – [29] where the Court of Appeal stated: 18 The Commission has a range of functions, conferring on it a broad regulatory role in relation to the provision of health services. Section 3A(2) of the Act states that "[t]he Commission is an independent body with responsibility for dealing with complaints under this Act, with particular emphasis on the investigation and prosecution of serious complaints in consultation with relevant professional councils." Relevantly for present purposes, the functions include the following: 80 Functions of Commission (1) The Commission has the following functions— (a) to receive and deal under this Act with the following complaints— • complaints relating to the professional conduct of health practitioners • complaints relating to a relevant health organisation, including an alleged breach by a relevant health organisation of a code of conduct prescribed by the regulations made under section 100(1)(c) of the Public Health Act 2010 • complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients • complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW), (b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2, (c) to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals, … 23 Upon receipt of a complaint, the Commission is required to assess it: Health Care Complaints Act, s 19(1). The purpose of assessment is to decide whether the complaint should be investigated, or some other step taken: s 20(1). .,, 24 On completion of an investigation, the Commission must do one of a number of things; it may (i) refer the complaint to the Director of Proceedings; (ii) refer it to the relevant professional council; (iii) make comments to the practitioner or (iv) terminate the matter: s 39(1). If it proposes to refer the complaint to the Director of Proceedings, "it must first inform the health practitioner of the substance of the grounds for its proposed action and give the health practitioner an opportunity to make submissions": s 40(1). Having complied with ss 39 and 40, it must notify the parties and the Council in writing of the results of the investigation, the action taken under s 39 and the reasons for taking that action: s 41(1). … 28 The procedures discussed so far are also the subject of provisions in the National Law. For present purposes it is sufficient to refer to the sections dealing with the courses available to the Commission. Those provisions are as follows: [Sections 145C and 145D of the National Law are then set out] 29 There are differences between the provisions of the Health Care Complaints Act and those of the National Law on the same topics. For example, the course available to the Commission under s 145C is not in terms constrained by the mandatory considerations which arise under s 90C of the Health Care Complaints Act. Further, s 145D(1) imposes an obligation to refer a complaint to the Tribunal upon the formation of an opinion that it "may", if substantiated, provide grounds for suspension or cancellation of a registration. These provisions thus confer an unrestrained power (subject to the usual limitations, such as improper purpose) coupled with an obligation where the Commission is of a particular opinion. (emphasis added) 1. The Commission also relies on these further passages of Hill: Powers of the Tribunal 31 Although the practitioner was adamant that his challenge to the decision of the Director to prosecute the complaint in the Tribunal was one to which the powers and functions of the Tribunal were irrelevant, that submission cannot be accepted. For example, to conclude that a decision to commence proceedings was legally unreasonable would be tantamount to saying it was unsupportable on the evidence or other relevant material, and thus constituted an abuse of the process of the Tribunal. If the Tribunal has power to deal with abuse of its own processes by staying or dismissing the proceeding, there would be a basis for inferring that the decision of the prosecutor was not reviewable on that ground. Alternatively, it would be possible to contend that the court should not exercise functions of judicial review until the Tribunal had had an opportunity to consider that matter for itself. The decision of the Tribunal might then be open to appeal or review. In that situation, judicial review might be refused on a discretionary basis, as when a plaintiff seeks to invoke the supervisory jurisdiction in disregard of a right of appeal. … 33 Section 55(1)(b) [of the NCAT Act] permits the Tribunal to summarily dismiss proceedings where there is no reasonable prospect of success, or where there is otherwise an abuse of process. … 34 There are further matters governing the procedures of the Tribunal in relation to health practitioners, to be found in Sch 5, Pt 4, Div 3 of the Tribunal Act. Importantly, the Tribunal is to observe the objectives and principles referred to in ss 3 and 3A of the National Law: cl 9(1). Section 3A of the National Law identifies "the protection of the health and safety of the public" as the "paramount consideration" in exercising functions under a New South Wales provision, a matter which binds both the Commission and the Tribunal. 35 It is apparent from these provisions that the Tribunal has power to dismiss or not proceed with the hearing of a complaint if it considers that the lodging of the complaint or its prosecution before the Tribunal is an abuse of process. 36 A second matter of potential significance is the wider operation given to the notion of a "complaint" in a number of provisions of the National Law, including ss 145C and 145D set out above. Thus, s 139F states that in those (and other) provisions "a reference to a complaint includes a reference to a matter arising out of the investigation of a complaint in accordance with this Law or another Act". 37 The activities of the Commission do not enjoy the protection of a privative provision. However, even if they did, that would merely be a factor to be taken into account in resolving any apparent inconsistency between the conferral of limited statutory powers and the protection of the decision-maker from judicial review of the exercise of those powers. … 39 Decisions made by the Director of Proceedings with the Commission are not decisions of any court or tribunal; rather, they are decisions to invoke the jurisdiction of a tribunal. Although the Tribunal is not a judicial body for the purposes of Ch III of the Commonwealth Constitution, it is a body exercising judicial functions. In the present case, it has the power to suspend or cancel the registration of a medical practitioner. In so acting, it is not exercising any domestic or private power based on contract, but a public function of the State of New South Wales. For the Supreme Court to intervene in a manner which effectively prevents the Tribunal from exercising its statutory powers because a judge of the court is of opinion that proceedings should not have been commenced is a troubling proposition. The Director of Proceedings is established as an independent authority outside ministerial control. … 40 The rationale for permitting a prosecutor freedom of action, largely immune from judicial review, but always subject to the control of the court or tribunal in which proceedings are commenced, applies with almost equal force to decisions of the Director of Proceedings. Whether the immunity arises as a legal principle constraining the operation of the supervisory jurisdiction of the Court, or as a matter of statutory construction in the particular jurisdictional context that arises under the National Law and the Health Care Complaints Act, is not an issue which appears to have practical consequences in the present circumstances. 41 To describe the actions of the Director of Proceedings as "largely" immune from judicial review leaves open the possibility that a decision may be found to be invalid if made for a corrupt or improper purpose, or without compliance with mandatory preconditions. Again, it is not necessary to express a firm view as to whether there is a judicial review jurisdiction based on these grounds because there was no allegation of improper purpose or lack of bona fides on the part of the Director of Proceedings. The question of mandatory preconditions requires further explanation. 1. Thirdly, the Commission emphasises the following passages of Litchfield at 5: Disciplinary proceedings consequent upon a conviction in criminal proceedings are not barred by autrefois convict or any wider principle of double jeopardy. See Re Weare 1893] 2 QB 439, and Law Society v Bannister (1993) 4 LPDR 24 at 27 per Sheller JA. The converse is also true and adverse proceedings are not barred by autrefois convict or any wider principle of double disciplinary action does not bar later criminal proceedings arising out of the same facts. See Lewis v Mogan [1943] KB 376; R v Hogan [1960] 2 QB 513; and Wigglesworth v The Queen (1987) 45 DLR (4th) 235 at 256, a decision of the Supreme Court of Canada. The proposition that an acquittal does not inhibit disciplinary proceedings arising out of the same facts is well established in other common law jurisdictions. See Re Stinson (1911) 22 Ont LR 627; Re A Medical Practitioner (1959) NZLR 784 (CA); Bodna v Deller [1981] VR 183 at 196-8; Basser v 30 Medical Board [1981] VR 953 at 971-2; and Saeed v Inner London Education Authority [1985] ICR 637. It is also sound in principle because both the onus of proof and the purpose and focus of the proceedings are different. (emphasis added) 1. The Commission submits that Litchfield reflects s 243(1)(a) of the National Law which provides: 243 Conduct may constitute offence and be subject of disciplinary proceedings (1) If a person's behaviour constitutes an offence against this Law or another Act and constitutes professional misconduct, unsatisfactory professional performance or unprofessional conduct under this Law— (a) the fact that proceedings for an offence have been taken in relation to the behaviour does not prevent proceedings being taken before an adjudication body under this Law for the same behaviour; and (b) the fact that proceedings have been taken before an adjudication body under this Law in relation to the conduct does not prevent proceedings for an offence being taken for the same behaviour. (2) If a person's behaviour may be dealt with by a health complaints entity under the law of a participating jurisdiction and constitutes professional misconduct, unsatisfactory professional performance or unprofessional conduct under this Law— (a) the fact that the behaviour has been dealt with by the health complaints entity does not prevent proceedings being taken before an adjudication body under this Law for the same behaviour; and (b) the fact that proceedings have been taken before an adjudication body under this Law in relation to the behaviour does not prevent action being taken by the health complaints entity under the law of the participating jurisdiction for the same behaviour. Consideration 1. In my view, the proceedings commenced by the Commission cannot be described as frivolous or vexatious. 2. Nor do I think that the proceedings are lacking in substance. 3. I consider therefore that the only basis for the application for summary dismissal is that the proceedings are otherwise misconceived. 4. I see no reason why the application for summary dismissal should be granted on this basis. 5. This is for the following reasons. 6. The first group of grounds agitated by the practitioner was that the Commission instituted the present proceedings "based on the judgment of the criminal Trial". This submission is misconceived. The present proceedings are not "based on the judgment of the criminal Trial". Indeed, the present proceedings have nothing to do with the criminal trial, in which in any event the practitioner was acquitted. The present proceedings have come about because of the Commission's duties and obligations arising under the National Law, which are set out above. 7. The second group of grounds related broadly to the expert reports of Dr Ee and, particularly to her lack of expertise. For the reasons that follow, I have rejected the practitioner's claim that Dr Ee lacked the expertise to give her opinion in this matter. And, as can be seen in the Substantive Decision, the Tribunal accepted Dr Ee's opinion evidence in relation to Complaints One, Three and Four. 8. The third group of grounds related to other expert reports in so far as they related to the cause of death of Patient A. As is also explained in the Substantive Decision, the practitioner submitted, and the Tribunal accepted, that any evidence about the cause of death of Patient A should be excluded. Indeed, the Commission ended up not relying on that evidence and it was not tendered. 9. This submission of the practitioner lacks substance. 10. The fourth group of grounds was that the complaints brought by the Commissions are "unreasonable and wrong and or illegal and cannot be established and not be proved". Here, we accept the Commission's clearly correct submission that this issue is the very essence of what the Tribunal is required to consider, and that this is not a proper basis for a summary dismissal application. 11. The fifth group of grounds related broadly to the judgment of Judge Pickering SC. This submission is misconceived and lacks any merit. It is also embarrassing, and shows a fundamental misunderstanding of the role and function of the Commission. 12. The sixth group of grounds related broadly to the acts of the Coroner. This submission too is misconceived and lacks any merit. It is also embarrassing, and shows a fundamental misunderstanding of the role and function of the Commission. 13. The seventh group of grounds related the Commission's failure to prosecute Dr Ee, the ICU doctors at Hornsby Hospital who treated Patient A, the Coroner, the Therapeutic Goods Administration and NSW Health before continuing the proceedings. This submission also is misconceived and lacks any merit. It is also embarrassing, and shows a fundamental misunderstanding of the role and function of the Commission. Conclusion 1. Even when the practitioner's submissions are considered cumulatively, the practitioner has not demonstrated any proper basis on which the proceedings should be summarily dismissed pursuant to s 55 of the NCAT Act, under any other legislation or for any other reason. Objection to the expertise of Dr Ee 1. Following my rejection of the application for summary dismissal of the proceedings, I then turned to hearing the practitioner's objections to the expert evidence sought to be relied on by the Commission. The sound recording of the hearing records my various rulings on those matters. 2. However, the practitioner objected to the Tribunal receiving any of the reports of Dr Ee. There were various reasons for this, including but not limited to: 1. "Dr Carolyn Ee is not qualified as expert of Chinese herbal medicine practitioner for this application"; 2. "It was unreasonable proceedings to use an unqualified expert of Chinese Herbal Medicine Practitioner to comment the Chinese herbal medicine practice in order to give evidence to prove the negligence"; 3. "It was unreasonable and wrong Proceedings that Dr Carolyn Ee used her personal opinions as the professional standard of Chinese herbal medicine practice in order o give evidence to prove the negligence"; 4. "Dr Carolyn Ee is unreasonable and misleading and wrong and illegal to set the standard expected as recommending medical review for the Chinese herbal Medicine practitioner"; 5. "Dr Carolyn Ee had professional misconduct or unsatisfactory Professional conduct"; 6. "The expert reports of Dr Carolyn Ee are all inadmissible and needed to be excluded, as they were provided in the unreasonable and misleading and wrong and illegal way"; and 7. "HCCC and or Chinese Medicine council are illegal in proceedings to engage Dr Carolyn Ee as Expert witness for this prosecution, as Dr Carolyn Ee is or has been the committee member of Chinese Medicine Board". 1. Consequently, on the second day of the hearing, a voir dire was conducted. Voir dire 1. During the voir dire, Dr Luo repeatedly put to Dr Ee that she was not qualified to give her evidence, did not understand Chinese herbal medicine. 2. The practitioner also put to Dr Ee that she had confused "standards", and had moved the responsibility for Patient A's death from "no-one" (Patient A having died from natural causes), to him. 3. The practitioner also put to Dr Ee that she a liar and dishonest. 4. Dr Ee denied each of these assertions. 5. Following a cross-examination that lasted well over an hour, the respondent then made oral submissions on why the Tribunal should reject the Commission's tender of the three expert reports. Submissions of the practitioner 1. The practitioner's oral submissions can be summarised as follows. 2. First, Dr Ee lacks the appropriate qualifications, education and experience in Chinese Medicine to give her opinion evidence in so far as it relates to that discipline. 3. Secondly, Dr Ee's reports inappropriately relied on a document titled Chinese Board of Medicine Board Standards for Professional Capabilities for Chinese Health Practitioner which was published in February 2020. 4. Thirdly, Dr Ee prepared her expert reports in circumstances where she had been a member of the Chinese Medicine Board of Australia Reference Group from 2016 to 2018, a circumstance the respondent says is not allowed by the APHRA Guidelines. 5. Fourthly, regardless of the above, Dr Ee's opinions are wrong. 6. Fifthly, because Dr Ee gave opinions on Western medicine, she knew that Western medicine can lead to death, therefore she mixed up the standards. 7. Sixthly, Dr Ee was dishonest. For instance, she did not mention that Western medicine can lead to death. 8. Seventhly, Dr Ee simply shifted the responsibility form Western medicine to the practitioner, believing that Dr Luo's conduct had led to the death of Patient A. 9. Eighthly, Dr Ee does not understand "the health industry standards for natural cause of death". 10. Ninthly, Dr Ee's reports are illogical, unreasonable and not adequately reasoned. 11. The principal written submissions by the practitioner relating to Dr Ee's lack of expertise were as follows: (v) The HCCC expert Dr Carolyn Ee is not qualified as expert of Chinese herbal medicine practitioner for this application. 111 To be qualified as expert of Chinese herbal medicine practitioner for this application, the expert of Chinese herbal medicine practitioner must be the registered Chinese herbal Medicine practitioner with good understanding and knowledge and rich experiences of Chinese herbal medicine practice, including the use of Chinese herbal Medicine treatments for vomiting, skin disorder, and weakness. 112 Dr Carolyn Ee is Acupuncturist and a GP with daily practicing in clinic on GP backgrounds, she is not a registered Chinese Herbal Medicine Practitioner. [3] 113 Dr Carolyn Ee has no practise experience of Chinese Herbal Medicine, and no expertise of Chinese Herbal Medicine practice. 114 Hence, Dr Carolyn Ee was not qualified as expert of Chinese Herbal Medicine Practitioner. 115 The HCCC expert Dr Carolyn Ee is unreasonable person or expert to give unreasonable and misleading and wrong opinions without reasonable logical thinking, as she does not understand the basic logical thinking been taught in high school of can not compare and can not conclude to give opinion of lower average level without knowing what is the average level. 116 Dr Carolyn Ee has no practice experience and knowledge on vomiting and weakness and Chinese herbal Medicine and medications. 117 Even Dr Carolyn Ee was registered as Chinese herbal Medicine practitioner in period of 2005 – 2008, but this supports that she has no ability and is unable to use and does not understand the Chinese herbal Medicine, hence she was deregistered as Chinese herbal Medicine practitioner. And Dr Carolyn Ee only has experience background of using Chinese herbal Medicine in research program, but this application is not about the research program. 118 This application is substantially subject to the key issues of regarding the understanding and the knowledge of symptoms and Chinese herbal Medicine and medications. 119 Dr Carolyn Ee has no practice experience and does not know of using Chinese herbal Medicine to treat the vomiting and weakness, does not know and not understand why and where and how the vomiting and weakness were from. Dr Carolyn Ee is very low levels of the understanding and the knowledge of symptoms and Chinese herbal Medicine and medications, and or, does not understand and not know the knowledge of symptoms and Chinese herbal Medicine and medications. 120 Dr Carolyn Ee is not qualified in the area of standard well, and does not understand the Common Law of duty of care and or the extent of duty of care and negligence, not understand the taking medications causing body harm and organ functions damages and deaths, not understand the causations, not understand the natural causes of death and the manner of death, not understand the heart attack kidney failure renal failure myocardial infarction, not understand the ICU medical records, not understand the standards expected in the medical systems and health systems, not understand the Policy and standard of Health Department, not understand the Policy and standard of TGA. 121 Therefore Dr Carolyn Ee is not qualified as expert for this application. And the evidences of expert Reports and opinions of Dr Carolyn Ee must be excluded and not admissible. 1. In addition to those submissions, the practitioner claimed: iv. The HCCC is illegal in proceedings to engage the committee of Chinese Medicine Board to be expert witness for this application. 106 According to the APRHA prosecution guideline, Chinese medicine board, and or Chinese Medicine council NSW, and or HCCC, can not engage the committee member of Chinese Medicine Board as Expert witness for prosecution. 107 Expert evidence must be provided by a person who is independent from both the Board and the practitioner the subject of the proceeding, according to the Regulatory Guide April 2021 at p56. 108 The HCCC is on behalf of Chinese Medicine Board and or Chinese Medicine council to do this application, as Chinese Medicine council agreed to engage Dr Carolyn Ee as Expert witness of Chinese herbal medicine practitioner. 109 Hence, HCCC and or Chinese Medicine council are illegal in proceedings to engage Dr Carolyn Ee as Expert witness for this prosecution, as Dr Carolyn Ee is or has been the committee member of Chinese Medicine Board. 110 The Court of NCAT must not allow Dr Carolyn Ee to be the Expert witness for this application, and all Expert Reports of Dr Carolyn Ee must be inadmissible and excluded. Submissions of the Commission 1. The Commission referred the Tribunal to s 13 of the HCC Act. That section provides that: 30 Expert assistance (1) In investigating a complaint, the Commission may obtain a report from a person (including a registered health practitioner) who, in the opinion of the Commission, is sufficiently qualified or experienced to give expert advice on the matter the subject of the complaint. (2) The Commission may not obtain a report from a person who has a financial connection with the health practitioner against whom the complaint is made. (2A) If the Commission seeks to obtain a report from a person under this section in relation to a complaint, the Commission is to provide the person with all relevant information concerning the complaint that is in the possession of the Commission. … (4) Such a report may be used in disciplinary or related proceedings under the Health Practitioner Regulation National Law (NSW) but may not be admitted or used in any other proceedings before a court, tribunal or body, except with the consent of the person giving the report, the complainant and the person against whom the complaint is made. …" 1. Mr Aitken then referred to NCAT Direction 3, Expert Evidence which provides at [3]: In proceedings where the Tribunal is not bound by the rules of evidence, the acceptability of expert evidence is a question of weight not admissibility. Nonetheless, if those proceedings involve complex or difficult expert issues, it is appropriate to require expert evidence to be prepared. 1. Mr Aitken then referred to cl 2 of Sch 5D of the National Law which provides: 2 Proceedings generally [NSW] In proceedings before it, a Committee or the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit. 1. Mr Aitken then submitted that there was no evidence before the Tribunal that Dr Ee had any form of conflict. He said that there was no reason for perceiving a conflict of interest. 2. Mr Aitken submitted that Reference Group membership had expired before Dr Ee was required to give her opinions. Mr Aitken submitted that the records of the Reference Group do not raise any concern that Dr Ee would not bring a partial and detached mind to the giving of her opinions. 3. Mr Aitken submitted that the two specialist members brought their own expertise to bear in evaluating the expert evidence of an expert: Health Care Complaints Commission v Kavierieris [2024] NSWCATOD 40 at [16], which referred to the judgment of Basten JA in Lucire v Health Care Complaints Commission [2011] NSWCA 99. 4. Mr Aitken also referred the Tribunal to Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169 at [16] where the Tribunal stated: The professional members of the Tribunal are entitled to apply their own specialist expertise to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct, with appropriate attention to the expert evidence if there is a genuine difference of view: HCCC v Fraser [2014] NSWCATOD 29 at [238]. 1. Mr Aitken submitted that the Tribunal would not conclude that Dr Ee's opinion was tainted or unreasonably influenced. 2. Mr Aitken said that the Commission rejects any allegation of dishonesty, saying such allegations were unfounded and cannot be sustained. 3. Finally, Mr Aitken submitted that Dr Ee gave no opinion evidence that the practitioner caused Patient A's death. Practitioner's submissions in reply 1. Dr Luo made brief oral submissions in reply. He submitted that: 1. Dr Ee has repeatedly used the new standards in her reports; 2. her reports kept "pointing fingers" at the practitioner stating that his standard was below the standards. But the standards that Dr Ee was referring to were the new standards; and 3. therefore Dr Ee's reports which do not contain sincerity, are inappropriate and she has mixed up the standards which was done as an illegal method. Consideration 1. I commence with a statement of Dr Ee's training, study and experience. 2. In her first report Dr Ee states: [4] Professional Background I am a registered Chinese medicine practitioner (division of acupuncture - clinical registration until November 2022, research registration from November 2022 onwards). I obtained my Chinese medicine qualifications at RMIT University in 2004 (Bachelor of Applied Science in Chinese Medicine and Human Biology). This qualification allows me to register as both an acupuncture practitioner and a Chinese herbal medicine practitioner although I do not practise Chinese herbal medicine any longer as I am also a registered medical practitioner (specialist registration - general practice) and had chosen to focus mainly on general practice and acupuncture in my clinical practice. I relinquished my Chinese herbal medicine registration in 2008.Therefore I would like to make a caveat that I have not been a practising Chinese herbalist for over a decade. I also hold qualifications in medical acupuncture (Grad Cert Med Acup - Monash Uni) and up until December 2022 was endorsed for medical acupuncture. I am a full time clinical researcher (PhD 2017) at Western Sydney University with a focus on complementary therapies. I conduct clinical trials on acupuncture, Chinese herbal medicine, and other complementary therapy modalities. I was a member of the Chinese Medicine Board of Australia Reference Group from 2016-2018 and am Chair of the Royal Australian College of General Practitioners Integrative Medicine Specific Interest Network. 1. Attached to the first report is Dr Ee's curriculum vitae. This is 16 pages in length and includes details of her academic qualifications, her research experience, her publications and her "grants and funding, achievements, awards". 2. I reject the submission that Dr Ee does not have appropriate qualifications and education in Chinese Medicine. Clearly, she does. The practitioner's real point is that she lacks the appropriate level of experience to give evidence about Chinese herbal medicine. 3. I accept that Dr Ee only worked as a Chinese herbal medicine practitioner for a relatively short period namely from 2006 to 2008 which was, as admitted by Dr Ee, "a very long time ago". But I reject the submission that this factor alone warrants the Tribunal rejecting the tender of her reports. This lack of experience is something that could be pursued in cross-examination, should the practitioner choose to require Dr Ee for cross examination once her reports are tendered. [5] 4. As to the submission that Dr Ee's reports inappropriately relied on a document titled Chinese Board of Medicine Board Standards for Professional Capabilities for Chinese Health Practitioner, which was published in February 2020, I do not find this submission established. While Dr Ee refers to this document in her expert report dated 30 April 2023, this is in the context of the following statement: Chinese medicine is a treatment modality that originated in China and which is considered a complementary therapy in Australia. A complementary therapy is a therapy that is not considered part of mainstream or conventional medicine, but is provided alongside conventional medicine. This is in contrast to alternative therapies, which are used instead of conventional medicine. A therapy may be complementary or alternative depending upon the nature of its use with conventional medicine. We know that Western medical doctors do refer to Chinese medicine practitioners, particularly for acupuncture, which is a Chinese medicine modality. This is often for conditions that are not well treated or understood in Western medicine, for example, chronic pain. Likewise, Chinese medicine practitioners are encouraged to work in conjunction with Western medical doctors. For example, in the recently published Chinese Medicine Board Standards for Professional capabilities for Chinese Medicine Practitioners, the following capabilities are outlined. 1. Dr Ee gave uncontradicted evidence that the standards she was referring to in her reports was the Chinese Board of Medicine Code of Conduct dated March 2014. 2. As to the submission that Dr Ee prepared her expert reports in circumstances where she had been a member of been a member of the Chinese Medicine Board of Australia Reference Group from 2016 to 2018, a circumstance the practitioner says is not allowed by the APHRA Guidelines, I make two comments. I do not accept that Dr Ee's participation in that Group prior to preparing any of her reports causes any kind of conflict in her giving expert evidence. And the practitioner's submissions about the AHPRA Guidelines is misconceived. 3. As to the submission that Dr Ee's opinions are wrong, I placed no weight on the that submission. As I repeatedly observed during the proceedings, disagreeing with the other party's expert is a matter that can be tested in cross-examination. It is not a proper basis on which to disallow the tender of an expert report. 4. The fifth submission that because Dr Ee gave opinions on Western medicine she knew that Western medicine can lead to death, therefore she mixed up with the standards, is a reiteration of the second ground. It is misconceived and I reject it. 5. The sixth submission is that Dr Ee has not been honest. I reject this submission entirely. 6. As to the submission that Dr Ee simply shifted the responsibility from Western medicine to the practitioner, believing that Dr Luo's conduct had led to the death of Patient A, this too is rejected. Dr Ee made no such suggestion. The only reference at all she made at all to the death of Patient A was in her second report, where in response to a submission from the practitioner, where she stated "… [Patient A] deteriorated especially from 5/6 onwards and eventually died". 7. At its highest, one may be able to draw some inference that Dr Ee believed that the practitioner was responsible for Patient A's death, but this is another matter that can be explored in cross-examination. It would not be appropriate to reject the tender of Dr Ee's reports based on that statement. 8. As to the submission that Dr Ee believed that the standard of his treatment was below standard, this is precisely the matter that should be explored in cross-examination. 9. As to the submission that Dr Ee does not understand "the health industry standards for natural cause of death", this is simply irrelevant given that the Tribunal was not enquiring into the cause of death of Patient A. 10. As to the submission that that Dr Ee's reports are illogical, unreasonable and not adequately reasoned, these are matters that can be explored in cross-examination. 11. In conclusion, I am not satisfied that any of these submissions individually, or even cumulatively, provide a proper basis for the Tribunal to reject the tender of Dr Ee's reports. I find that Dr Ee is appropriately qualified to express the opinions she does. Whether the Tribunal does so or not will await her cross-examination by the practitioner. Other 1. I note that despite, the ruling allowing the tender of the three reports of Dr Ee, the Commission decided not to tender Dr Ee's report which the Crown relied on at the practitioner's criminal trial. Conclusion 1. The practitioner's interlocutory applications for dismissal of the proceedings and challenging the expertise of Dr Carolyn Ee are both dismissed. Orders 1. The Tribunal orders that: 1. The respondent's application for summary dismissal is dismissed. 2. The respondent's challenge to the expertise of the applicant's expert witness Dr Carolyn Ee is dismissed, and Dr Ee's three reports relied on by the applicant may be tendered subject to objections by the respondent as to their content and relevance. 3. Costs are reserved. ********** Attachment A Summary of Grounds: 1. HCCC is unreasonable and wrong and illegally to institute the proceedings of prosecution based on the judgement of criminal trial. HCCC ought to discontinue the proceedings or withdrawal this application, and or the NCAT ought to dismiss this application in the base of following grounds: 2. The HCCC is unreasonable and wrong and illegally to institute the proceedings of prosecution based on the judgement of criminal trial. 3. The HCCC has no legitimacy to do this application as there is no unsatisfactory professional conduct on the case with natural causes death. 4. The evidences of opinions of the experts of HCCC and the Crown for the causations and the expert report of Dr Carolyn Ee are all inadmissible and needed to be excluded. 5. The HCCC is illegal in proceedings to engage the committee of Chinese Medicine Board to be expert witness for this application. 6. The HCCC expert Dr Carolyn Ee is not qualified as expert of Chinese herbal medicine practitioner for this application. 7. It was unreasonable proceedings to use an unqualified expert of Chinese Herbal Medicine Practitioner to comment the Chinese herbal medicine practice in order to give evidence to prove the negligence. 8. It was unreasonable and wrong Proceedings that Dr Carolyn Ee used her personal opinions as the professional standard of Chinese herbal medicine practice in order o give evidence to prove the negligence. 9. The new professional standards do not apply to this case. 10. The Dr Carolyn Ee is unreasonable and misleading and wrong and illegal to set the standard expected as recommending medical review for the Chinese herbal Medicine practitioner. 11. Taking medication Metformin caused death. 12. Taking painkiller Nurofen caused death. 13. The medication Amiodarone injection caused death. 14. The medication Adrenaline injection caused High blood glucose levels. 15. Taking medication Cefprozil caused death. 16. Taking medication Domperidone caused death. 17. The heart attack caused death. 18. The renal failure and kidney failure caused death. 19. The heart attack could not be predicted. 20. The manner of death was natural causes of death. 21. No one is liable for the natural causes of deaths. 22. Respondent did not have duty care of medications causing death. 23. The standards are expected in medical and health systems. 24. The Patient and her family fully controlled the matters of taking or not taking medications and seeing medical doctors and going hospital. 25. The true facts regarding the matters of taking or not taking medications and others. 26. Expert opinions without considering causations are unreasonable and misleading and wrong and illegal. 27. The Respondent did not have the duty of care for the recommending medical review. 28. The HCCC is unreasonable and misleading and wrong and illegal to do this application base on the standard expected as recommending medical review. 29. Object the unreasonable and misleading and wrong and illegal standard expected of recommending medical review. 30. The Complaint One of HCCC are unreasonable and wrong and or illegal and can not be established and not be proved. 31. The Complaint Two of HCCC are unreasonable and wrong and or illegal and can not be established and not be proved. 32. The Complaint Three of HCCC are unreasonable and wrong and or illegal and can not be established and not be proved. 33. The Complaint Four of HCCC are unreasonable and wrong and or illegal and can not be established and not be proved. 34. The incident of particular 1 in Dr Carolyn Ee report can not be established. 35. The 7 incidents of particular 2 to particular 8 in Dr Carolyn Ee report can not be established. 36. There was no breach of the code of conduct "Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively" and "Minimising risk to patients or clients is a fundamental component of practice. Good practice involves understanding and applying the key principles of risk minimisation and management into practice". 37. There was no breach of the code of conduct "Good relationships with colleagues and other practitioners strengthen the practitioner-patient/client relationship and enhance care". 38. There was no breach of the code of conduct "Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion." 39. There was no breach of the code of conduct "Practitioners have a responsibility to recognise and work within the limits of their competence and scope of practice". 40. There was no breach of the code of conduct "Maintaining clear and accurate health records is essential for the continuing good care of patients or clients. " and "keeping accurate, up-to-date, factual, objective and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patietns or clients, medication and other Management in a form that can be understood by other health practitioners." 41. There was no breach of the code of conduct "considering the balance of benefit and harm" 42. There was no breach of the code of conduct "providing treatment options based on the best available information and not influenced by financial gain or incentives" 43. There was no breach of the code of conduct "consulting and taking advice from colleagues when appropriate". 44. There was no breach of the code of conduct "ensuring the personal view of a practitioner do not affect the care of a patient or client adversely". 45. The gross negligence and or negligence were not established by the Crown's expert report and opinions. 46. The conducts significantly below the standard expected are not established and not proved. 47. The Chinese medicine council has not said any unsatisfactory professional conduct and or professional misconduct. 48. The opinions of HCCC expert are unreasonable and misleading and wrong. 49. The Cardiac Arrest was the direct or first cause of death. 50. The evidences supported lack of adrenaline and severe low blood pressure were the cause of death. 51. The evidences supported kidney failure and renal failure were the cause of death. 52. The evidences supported there was heart disorder or heart attack. 53. The evidences supported severe lactic acidosis was the cause of death. 54. The acute or remote plaque ruptures were the blood clots in coronary artery of heart causing the coronary artery occlusion. 55. The cardiac arrest and death were caused by kidney failure and renal failure. 56. The lactic acidosis was more important and more severe than Ketoacidosis causing death. 57. The Kidney failure caused high blood glucose. 58. It was unreasonable and wrong and error not to mention the finding of the samples from the coronary artery showed acute or remote plaque ruptures in the report summary of autopsy report. 59. It was unreasonable and wrong Proceedings that the cardiac arrest and abnormal ECG as direct cause of death were not disclosed in the Report of Death of A Patient to The Coroner (Form A). 60. It was unreasonable and misleading and wrong opinion that there was no heart attack or arterial occlusion given by the Crown's pathologist. 61. It was unreasonable and misleading and wrong opinion that the Diabetic Ketoacidosis was the direct or fist the cause of death. 62. It was unreasonable and misleading and wrong opinion that there was no second or other cause of death. 63. It was unreasonable and misleading and wrong opinion of an individual with type 2 diabetes stops taking Metformin can lead to death. 64. It was unreasonable and misleading and wrong opinion that no other natural disease process was identified which would explain the clinical course and death. 65. It was unreasonable and misleading and wrong opinion that the treating team of ICU assumed the blood gas machine reported No Result meant the item level was too high to be accurately measured. 66. Ceased ICU treatments was due to severe low blood pressures failed to be recovered. 67. The ICU Doctor was unreasonable and wrong in expertise about cause of death. 68. It was unreasonable and wrong opinion that early send to hospital the patient would survive. 69. It was unreasonable and wrong Proceedings that the Crown's pathologist did not use the Hornsby hospital medical records in the autopsy report. 70. It was unreasonable proceedings that the Crown did not provide the Hornsby hospital medical records evidence to her experts for the opinions of cause of death. 71. The evidences did not support that the high blood Ketone and glucose levels were caused by severe low blood insulin. 72. The evidences did not support that the high blood Ketone and glucose levels were caused by not taking medications. 73. It was unreasonable and misleading and wrong opinion that the Diabetic Ketoacidosis was Iatrogenic Diabetic Ketoacidosis. 74. His Honour Judge wrongly made a judgment that there was no evidence to support the heart attack. 75. His Honour Judge wrongly made a judgement that there was no other cause of death. 76. The causes of death were unpredictable or reasonable unpredictable. 77. The substantial causes of death were cardiac arrest and heart disorder or heart attack and kidney failure and renal failure and severe low blood pressure. 78. Respondent did not own and not breach the duty of care for diabetes. 79. Respondent was not liable for the causes of death. 80. His Honour Judge wrongly judged that the act and or omission caused death. 81. His Honour Judge wrongly made a judgement of relationship between the symptoms or signs and the disease diabetes. 82. His Honour Judge wrongly made the judgment of committing an act. 83. His Honour Judge wrongly made the judgment of committing an omission. 84. His Honour Judge wrongly made the judgment of substantial cause of death. 85. The evidences were unable to prove the negligence. 86. The evidences of Search Warrant video recording and Transcript were not able to prove that Respondent told patient not to take her medication. 87. His Honour Judge wrongly made a judgment of Respondent told patient not to take any medication. 88. His Honour wrongly judged the aspects of act and or omission. 89. His Honour Judge wrongly made the judgments of competence and morally and breach of duty of care. 90. The Manner of death was natural causes of death. 91. Respondent did not own a duty of care for what patient and her family and or other person said and act and how they cared for patient. 92. His Honour Judge wrongly judged the extent of duty of care. 93. The evidences were not able to prove the cassation. 94. It was unreasonable to have brought the proceedings where Respondent was not responsible for the diabetes and or causes of death. 95. The Crown's evidences were substantial unreliable evidences. 96. It was unreasonable Proceedings to use the substantial unreliable evidences to support the foundation of Crown's case. 97. His Honour unreasonably erred and failed to consider the manner of death was a natural cause of death. 98. Actually the cause of death truly was a cardiac cause of death. 99. The opinions of the Crown's experts must not be accepted to prove the Crown's case and the elements as the opinions of the Crown's experts were only the assumptions without the support of the findings of facts. 100. His Honour Judge unreasonably erred to make the judgement of diabetic ketoacidosis was Iatrogenic diabetic ketoacidosis. 101. The HCCC is unreasonable and wrong and illegal to institute this application and continue this proceeding of this application. 102. Dr Carolyn Ee had professional misconduct or unsatisfactory Professional conduct. 103. Medical doctors had professional misconduct or unsatisfactory Professional conduct. 104. The ICU doctors were severe low levels of understanding the blood test results and medications side effects. 105. The ICU doctors were serious in breach of the requirements of using medications. 106. The Coroner was serious in breach of the requirements of autopsy report. 107. The medical health systems do not put the protection of public of paramount importance. 108. The HCCC must prosecute Dr Carolyn Ee before continuing this Application. 109. The HCCC must prosecute the medical doctor before continuing this Application. 110. The HCCC must prosecute the ICU medical doctors before continuing this Application. 111. The HCCC must prosecute the Coroner before continuing this Application. 112. The HCCC must prosecute the TGA before continuing this Application. 113. The HCCC must prosecute the Health Department before continuing this Application. 114. Object HCCC application of any discipline action. 115. Object HCCC to seek the cost of the application. 116. Seek an order to lift the suspension from the registration of Respondent. Endnotes 1. This is the fourth sub-paragraph of [1] of the Submissions. 2. Actually, a reference to the AHPRA Regulatory Guide, September 2023, 3. HCCC Documents Volume Two Tab 66 at Page 340 4. Paragraph breaks added for ease of understanding 5. As it transpires the practitioner did cross-examine Dr Ee at the hearing. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 January 2025