TAYLOR v THE HEALTH CARE COMPLAINTS COMMISSION OF NEW SOUTH WALES [1996] NSWCA 518

TAYLOR v THE HEALTH CARE COMPLAINTS COMMISSION OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, CLARKE AJ and SIMos AJA 2 December 1996, 2 December 1996

[1996] NSWCA 518

PRACTICE AND PROCEDURE — Court of Appeal — Whether appeal competent Medical Practice Act 1992, s87, s90.

Mahoney P This matter comes before the Court under s46 of the Supreme Court Act 1970. On 13 September 1996 his Honour Mr Justice Sheller made an order dismissing Appeal No 40476 of 1996 as incompetent. Provision is made in s46 for a matter dealt with by a single Judge of Appeal to come before this Court. The terms of the section were reviewed in a matter of Wentworth v Wentworth (1994) 35 NSWLR 726. It is not necessary for this Court to consider the terms of s46. Whether the matter was originally properly before his Honour or should have come originally before this Court need not be determined. The matter is now before this Court either as on its own final jurisdiction or as the result of a review under s46 and, having regard to the circumstances of this case, the matter may be dealt with accordingly. I shall, in favour of the appellant, deal with the matter on its merits.

The present matter arises from a series of proceedings taken under the Medical Practice Act 1992. In order to understand what has been done and the nature of the appeal which by his Honour's order was dismissed, it is necessary to refer briefly to the factual background.

The doctor in question graduated in medicine in Queensland in 1989. She is also a graduate in law. She was registered as a medical practitioner in various States: in this State on 20 July 1993. In July 1993 she commenced employment as a resident medical officer at a hospital on the outskirts of Sydney and while she was so employed she was referred to an impaired registrant's panel under s72 of the Medical Practice Act 1992. The panel considered her condition and recommended the imposition upon her registration of a condition that she work only in a supervised position. The doctor declined to consent to that condition and in due course a complaint against her was lodged with the New South Wales Medical Board in accordance with s82 or otherwise under the Act. It is not necessary for me to detail the nature of the complaint; it is referred to in the decision of the Medical Tribunal of New South Wales of 21 June 1996.