MACARTHUR v WALTON [1995] NSWCA 264

MACARTHUR v WALTON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and POWELL JJA 21 June 1995, 31 August 1995 [1995] NSWCA 264

MEDICAL PRACTICE ACT 1992 s90 — PROFESSIONAL MISCONDUCT — QUESTION OF LAW — DISTINCTIONS FROM QUESTION OF FACT

MEDICAL PRACTICE ACT 1992 s90 — PROFESSIONAL MISCONDUCT OF MEDICAL PRACTITIONER — APPEAL ON QUESTION OF LAW DISTINCTIONS FROM APPEAL ON QUESTION OF FACT — Medical Tribunal finds medical practitioner guilty of professional misconduct by inappropriately touching patient — s90 Medical Practice Act 1992 confers appeal against decision of Tribunal only on a question of law or against exercise of Tribunal's disciplinary powers — practitioner seeks to establish appeal against Tribunal's decision on a question of law by arguing: 1. because of indirect testimony and indirect inferences the Tribunal cannot, as a matter of law, have been reasonably satisfied of the facts; 2. absence of evidence which a reasonable tribunal would accept; 3. error in law by Tribunal in reaching its decision without hearing certain evidence; 4. denial of procedural fairness to the practitioner — the complainant cross-appeals for an order that the practitioner pay the complainant's costs of proceedings before the Tribunal. Held: appeal must fail as no error of law can be demonstrated

determinations of primary fact which are necessarily based on the Tribunal's opinion of the reliability of witnesses and their evidence not vulnerable to attack as an error of law - question whether evidence ought to be accepted in whole or in part or ought to be accepted as sufficient to establish a fact itself a question of fact - Tribunal not bound to observe rules of law governing admission of evidence - no denial of procedural fairness.

ORDERS

1. Appeal dismissed with costs.