Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158

Reported Decision : [2001] ACL Rep 280 NSW 11

New South Wales Court of Appeal

CITATION : Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158 FILE NUMBER(S) : CA 40533/00 HEARING DATE(S) : 9 May 2001 JUDGMENT DATE : 1 June 2001

PARTIES : Health Care Complaints Commission (Appellant) A Medical Practitioner (Respondent) JUDGMENT OF : Powell JA at 1; Stein JA at 2; Rolfe AJA at 54

LOWER COURT JURISDICTION : Medical Tribunal of NSW LOWER COURT MT 40029/98 FILE NUMBER(S) : LOWER COURT Judge A J S Karpin (Chairperson) Dr P Arnold, Dr L Edwards, Mr D Berry JUDICIAL OFFICER :

COUNSEL : Appellant - Mr J Basten QC/Mr M Lynch Respondent - Mr M Bozic SC SOLICITORS : Appellant - D M Swain Respondent - Tress Cocks & Maddox CATCHWORDS : PROCEDURE - appeal from Medical Tribunal - appeal on a point of law - failure to reveal reasoning with regard to a critical issue constituted an error of law - MEDICAL PRACTICE ACT 1992 - excessive dosage of Kapanol - unsatisfactory professional conduct - quality of the error in misprescription - whether Tribunal entitled to take character into account - REMEDIES - Medical Practice Act 1992 - whether the making of no order is within the Court's discretion - D LEGISLATION CITED : Medical Practice Act 1992 Qidwai v Brown (1984) 1 NSWLR 100 CASES CITED: Pillai v Messiter (1989) 16 NSWLR 194 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 DECISION : 1. Appeal allowed. 2. Respondent to pay the appellant's costs of the appeal but receive a certificate under the Suitor's Fund Act 1951 if otherwise entitled. 3. In so far as the order of the Tribunal dismissed complaint 1(b), that order be set aside. 4. In substitution, there be a finding that the respondent is guilty of unsatisfactory professional conduct under s 36 of the Medical Practice Act 1992 in relation to complaint 1(b). 5. No order be made in consequence of the finding in order 4 above. 5. The order for costs made by the Tribunal be set aside and, in lieu thereof, order that the appellant pay one-half of the respondent's costs before the Tribunal.