PILLAI v MESSITER [1988] NSWCA 114

PILLAI v MESSITER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MCHUGH and CLARKE JJA, ROGERS AJA 28 July 1988

[1988] NSWCA 114

McHugh JA The question in this motion is whether the appeal is governed by s32U of the Medical Practitioners Act 1938, and if so, whether the grounds of appeal must be confined to questions of law.

The appellant has appealed against an order of the Medical Tribunal that his name be removed from the Register of Medical Practitioners. The Tribunal is constituted under s32M of the Medical Practitioners Act 1938. Grounds 2, 3 and 4 of the Notice of Appeal do not raise any question of law. The respondent, the claimant in the motion, contends that they are not relevant grounds of appeal. The appellant replies that the appeal is not governed by s32U of the Act but by s29(4) of the Medical Practitioners Act, as it was in force immediately prior to the commencement of the Medical Practitioners (Amendment) Act 1987 on 1 October of that year.

S29(4) provided that an appeal by a medical practitioner from a finding of guilt should be by way of rehearing. If the appeal is governed by s29(4), Grounds 2, 3 and 4 of the grounds of appeal are proper grounds. So the question is: is the case governed by s29, which is now repealed, or by s32U.

The conduct which gave rise to the complaint against the appellant occurred between 30 June 1986 and 7 July 1986. A complaint against him was lodged on 22 April 1987. The complaint contained three particulars. On 4 September 1987 the investigating committee which heard the complaint referred it to the Disciplinary Tribunal. Subsequently the Medical Practitioners (Amendment) Act 1987 was assented to in June of 1987 and the relevant provision commenced on 1 October 1987. That Act made substantial changes to the law dealing with complaints against medical practitioners. One of the amendments was s32 which provided that the Secretary of the Medical Board could refer a complaint to the Tribunal notwithstanding any prior action taken by the Secretary or the Board. Probably relying on that provision, the respondent lodged a new complaint against the appellant on 30 November 1987. That complaint contained three particulars, two of which were identical with those contained in the complaint lodged on 22 April 1987 but the third of which was different.