EDELSTEN v WARD AND ORS [1994] NSWCA 87

EDELSTEN v WARD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and SHELLER JJA 7 December 1993, 19 May 1994, 23 June 1994

[1994] NSWCA 87

FACTS:

The appellant was found guilty of seven complaints made against him by the Medical Tribunal pursuant to Div 3 of PtA of the Medical Practitioners Act, and failed in an appeal against those findings. Subsequently, the Tribunal ordered removal from the register, suspension from practice, and fines, orders which the appellant appeals under s32R and s32U(1)(b) of the Medical Practitioners Act, 1938.

The appellant sought to introduce fresh evidence to demonstrate inter alia that the finding that he was not of good character was flawed.

HELD:

(1) S32U(1)(b) offers only a limited right of appeal. With s75A of the Supreme Court Act it regulates an appeal to the Court of Appeal under the Act. As an appeal with respect to points of law was dismissed, this appeal is limited to the exercise of the Tribunal's power to make orders, where the Tribunal assumes its findings of fact are correct. It proceeds by way of rehearing. S75A(7) and s75A(8) allow fresh evidence to be adduced in limited circumstances, but the findings of fact with respect to all but the making of orders must be accepted in the absence of perjury, fraud or the like. On the basis of the complaints found proved the orders are justified.

ORDERS:

(1) Appeal dismissed with costs.

Mahoney JA I agree with Meagher JA and his conclusion that the appeal in this proceeding should be dismissed with costs. In deference to what has been put by and for Dr Edelsten, I shall indicate generally the reasons why I am of this opinion.

Seven complaints were made against Dr Geoffrey Walter Edelsten. The hearing of them occupied a considerable time. On 27 April 1988 the Medical Tribunal of New South Wales found each of the complaints proved. Before orders were made, Dr Edelsten appealed to this Court against the decision or decisions which the Tribunal then made on the ground that they involved errors of law. On 11 November 1988 this Court dismissed that appeal and remitted the proceedings to the Tribunal "to perform its function under s32R of the Medical Practitioners Act 1938". On 29 November 1988 the Tribunal made a number of orders, involving the removal of Dr Edelsten's name from the register of medical practitioners, the imposition of a fine of $ 10,000 and the fixing of times after which he might apply to be registered.