EDELSTEN v WARD & ORS [1989] NSWCA 72

EDELSTEN v WARD & ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and CLARKE JJA 3 June 1988, 9 June 1988

[1989] NSWCA 72

MEDICAL PRACTITIONERS — misconduct — proceedings before Medical Tribunal — separate decision on complaints — decision on "penalty" stood over for argument — application to restrain Tribunal from proceeding to determination of complaints pending hearing of an appeal on points of law by the Court of Appeal — inconvenience of such a course — whether that course required by Medical practitioners' Act 1938, s32U(6) — held: (1) Inquiry by the Tribunal had not been completed pending determination under s32R; (2) Accordingly, an appeal with respect to a point of law having been made, the inquiry before the Tribunal may not continue until the appeal has been disposed of by force of s32U(6) of the Act.

LAW REFORM — medical practitioners — Medical Tribunal — effect of appeal on a point of law where inquiry has not been completed — requirement that inquiry "shall not continue" — inconvenience of such requirement — suggestions by the Court of legislative attention to the provision. Medical Practitioners' Act 1938, s32R, s32T, s32U. Health Legislation (Reasons for Decisions) Amendment Act 1987, s3, Schedule 1.

ORDERS

1. Order that David Thomas Richmond and Gordon Messiter be added as appellants to the appeal and opponents to the notice of motion herein.

2. Order that the further proceedings upon the inquiry being conducted by the Medical Tribunal be stayed until the conclusion of the appeal filed by the claimant or further or other order of the Court.

3. Order that the hearing of the appeal be expedited and that it be listed before the Acting Registrar for the purpose of fixing an expedited date in July or August 1989.

4. Order written submissions.

5. Liberty to apply upon two days notice.