Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362

New South Wales Court of Appeal

CITATION: Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362

HEARING DATE(S): 2 November 2007

JUDGMENT DATE: 14 December 2007

JUDGMENT OF: Beazley JA at 1; Giles JA at 81; Hislop J at 84

DECISION: The appeal is dismissed with costs.

CATCHWORDS: APPEAL – decision of Medical Tribunal – appeal against exercise of discretion – principles regarding error in exercising discretion – House v The King [1936] HCA 40 - (1936) 55 CLR 499 – court will not intervene unless a miscarriage of justice also demonstrated – whether error has been demonstrated - COSTS – award of costs – Medical Practice Act 1992 – Medical Tribunal can award costs to such person as it determines – no general costs rule – purpose of award of costs – costs are to indemnify person in whose favour order is made – costs not to punish person against whom order is made – successful party reimbursed for costs absent conduct which make proceedings unjust or unreasonable – whether Medical Tribunal erred in awarding costs to successful party - PROFESSIONS – medicine – complaints against medical practitioner – Medical Board exercised powers under s 54 of Medical Practice Act 1992 to investigate practitioner – Medical Board subsequently convened inquiry under s 66 of Medical Practice Act – s 66 inquiry where Medical Board satisfied action necessary for the purpose of protecting health of members of the public – Medical Board determined practitioner suffering from impairment and also engaged in inappropriate conduct – Medical Board referred matter to Medical Tribunal pursuant to s 66B of the Medical Practice Act – whether matter should have been referred under s 66B or to an Impaired Registrants Panel under s 66C of the Medical Practice Act - UNREPRESENTED LITIGANT – obligations of court or tribunal to unrepresented litigant – unrepresented litigant should understand proceedings and receive a fair trial – whether Medical Tribunal erred in conducting proceedings