KIRUMBA v WALTON [1990] NSWCA 107

KIRUMBA v WALTON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and HANDLEY JJA 30 May 1990, 31 May 1990, 4 October 1990

[1990] NSWCA 107

MEDICINE — medical practitioners — discipline and removal from the register — "professional misconduct" — meaning of — necessity of wrongdoing — whether "improper or unethical conduct" must be shown — whether proof of bipolar mental disorder sufficiently explains misconduct of practitioner in prescribing drugs of addiction to drug addicts, charging cash in addition to Medicare assignments and making sexual overtures to a patient — held: (1) Appeals to the Court of Appeal from the Medical Tribunal are limited to errors in point of law; (2) Accordingly, no appeal arises from a decision on the facts concerning the extent of a medical practitioner's alleged bipolar disorder and whether such disorder was sufficiently severe to explain his misconduct. Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139; Mahony v Industrial Registrar of New South Wales (1987) 8 NSWLR 1; Randwick Municipal Council vy Manousaki (1988) 66 LGRA 330 applied; (4) No error of law was shown in the findings of the Medical Tribunal concerning the degree and significance of the practitioner's alleged disorder; (5) Accordingly, "professional misconduct" had been made out in the sense of wrongful, improper or unethical conduct; (6) It was therefore unnecessary to determine whether such considerations were always required for "professional misconduct" for they undoubtedly existed in this case. Pillai v Messiter (No 2) (1989) 16 NSWLR 197 and Robinson v The Law Society of New South Wales, Court of Appeal, unreported, 17 December 1976 referred to.

APPEAL — point of law — stringency of — review of perverse or "extreme" findings of fact — whether available in an appeal limited to point of law — held: (1) On the current authority of the Court of Appeal even perverse findings of fact do not of themselves raise a point of law. Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 applied; Edelsten vy Ward [No 1] (1988) 63 ALJR 345 referred to; (2) Leave should not be granted to reargue the holding in Azzopardi in the instant case, inter alia because the findings of fact made in the Medical Tribunal were clearly open to it and were not on any view "extreme" or "perverse".