VERMA v McGREGOR [1989] NSWCA 218

VERMA v McGREGOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MCHUGH and CLARKE JJA 12 December 1988, 10 February 1989 [1989] NSWCA 218

Medical practitioners — Conviction of offences for presenting medical assignment forms false in material particulars — Order by Disciplinary Tribunal that appellant's name be removed from Register — Whether order removing name of appellant from Register justified — Appeal dismissed.

ORDERS The appeal is dismissed; Order that the appellant's name be removed from the Register and the appellant to pay the respondent's costs of the appeal.

Samuels JA I agree with Clarke JA.

McHugh JA I agree with the orders proposed by Clarke JA and with his reasons.

Clarke JA This is an appeal from an order of the Medical Tribunal established under the Medical Practitioners Act 1938 as amended directing that the appellant's name be removed from the Register of Medical Practitioners of New South Wales.

The appellant does not, however, challenge the finding of professional misconduct that was made and the issue which arises is whether the order made by the Tribunal reflects a failure properly to consider all the relevant circumstances with the consequence that an inappropriate order was made. In particular counsel submitted that the evidence demonstrated that the appellant was unlikely to offend again and that, in those circumstances, it would have been appropriate for the Tribunal simply to have imposed conditions upon the appellant's right to practise medicine by, for instance, permitting him to practise only in employment in a public hospital. I should observe that his counsel initially submitted that the Tribunal should have utilised its power to fine the appellant under s32R(1)(h) of the Medical Practitioners Act. In view of the fact that the appellant had already been fined by the Supreme Court in respect of the misconduct which led to his appearance before the Tribunal it appeared to the court that s32R(7) precluded the Tribunal, and the court on appeal, from imposing a fine. Upon his attention being directed to this subsection, the appellant's counsel did not submit that the section on its proper construction did not preclude the court from imposing a fine on the appellant. Instead he withdrew his submission in apparent acceptance of the provisional view which the court expressed.