ROHATGI v HEALTH CARE COMPLAINTS COMMISSION [1996] NSWCA 454

ROHATGI v HEALTH CARE COMPLAINTS COMMISSION

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA

11, 26 July 1996

[1996] NSWCA 454

APPEAL — right of appeal — from Medical Tribunal in review enquiry — Medical Practice Act 1992.

PROFESSIONS AND TRADES — Medical Tribunal — review enquiry — whether appeal lies to the Court of Appeal.

The appellant had been struck off the register of medical practitioners on 29 September 1988. On 5 February 1993 he applied to the Medical Tribunal for a review of the order for his removal and on 29 February 1996 the Tribunal made an order, subject to conditions, that the appellant be registered as a medical practitioner. The appellant appealed to the Court of Appeal and challenged the Tribunal's decision that each party should bear its own costs and certain adverse findings described as "Consequential Orders". The respondent applied by motion for the appeal to be dismissed as incompetent.

HELD, allowing the motion: (1) The so-called "Consequential Orders" were merely findings forming part of the reasons; (2) Appeals lie only in respect of orders and not from reasons as such: see Commonwealth of Australia v Bank of New South Wales (1950) AC 235 at 294; Driclad Pty Ltd v FCT (1968) 121 CLR 45 at 64; (3) The appeal against the so-called consequential orders was therefore incompetent; (4) A right of appeal is dependent on statutory authority; (5) The appellant had no right of appeal from orders made by the Tribunal on a review enquiry either under s 32U of the 1938 Act or s 90 of the 1992 Act.

Handley JA. This is a motion by the Commission for an order that the appeal be dismissed as incompetent. On 29 September 1988 the Medical Tribunal ordered that the name of the appellant be removed from the Register of medical practitioners. On 5 February 1993 the appellant applied to the Medical Tribunal pursuant to s 32V of the Medical Practitioners Act 1938 for a review of the order for his removal. This initiated an enquiry under s 32(4). On 22 June 1993 prior to the commencement of the Medical Practice Act 1992 the Tribunal dismissed the application.