TAYLOR v HEALTH CARE COMPLAINTS COMMISSION OF NEW SOUTH WALES [1996] NSWCA 517

TAYLOR v HEALTH CARE COMPLAINTS COMMISSION OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 13 September 1996

[1996] NSWCA 517

Sheller JA. On 20 August 1996 the claimant, Teresa Taylor, filed a notice of motion seeking, amongst other orders, that the time for filing a notice of appeal from a decision delivered on 21 June 1996 by the Medical Tribunal constituted under Part 11, Div 1 of the Medical Practice Act 1992 (the 1992 Act) be extended. On the same day the claimant filed a notice of appeal in which the Health Care Complaints Commission of New South Wales (the Commission) is named as the respondent. The claimant seeks to bring her appeal pursuant to s 90 of the 1992 Act. Subsection (2) provides that the appeal must be made within twenty-eight days (or such longer period as the Court may allow in a particular case) after the handing down of the decision. The application is supported by the claimant's affidavit sworn on 17 July 1996which explains why there was delay in filing the notice of appeal and annexes two letters, one of 19 July 1996 from the claimant to the solicitor for the Commission, and the other of 16 August 1996 from the Deputy Commissioner of the Commission indicating that the Commission was of the opinion that no appeal could be made under s 90 of the 1992 Act, that the appeal was incompetent and, accordingly, that the Commission did not consent to the appeal being filed out of time.

The application first came before me on 2 September 1996. The Commission indicated, through its legal representative, that it was prepared to agree to the matter proceeding as an appeal, reserving to itself the right to challenge the competency of the appeal in due course before the Court. The claimant, who had travelled from Brisbane for the hearing of her application, wished to argue the question of competency. Accordingly her application for an extension of time was stood over to 3 September 1996 when I heard argument and reserved my decision. During argument Ms Katzmann, who appeared for the Commission, sought and was granted leave to file a notice of motion for an order that the appeal be struck out as incompetent. The notice of motion was filed later on that day.