Lindsay v Health Care Complaints Commission [2010] NSWCA 194

New South Wales Court of Appeal

CITATION: Lindsay v Health Care Complaints Commission [2010] NSWCA 194

HEARING DATE(S): 5-7 July 2010

JUDGMENT DATE: 19 August 2010

JUDGMENT OF: Giles JA at 1; Young JA at 4; Sackville AJA at 47

(1)The appeal under s 90 of the Medical Practice Act 1992 is dismissed. (2)The application under s 69 of the Supreme Court Act 1970 is dismissed. (3)The appellant is to pay the costs of the respondent of the appeal under s 90 of the Medical Practice Act 1992 and of the application under s 69 of the Supreme Court Act 1970. DECISION: (4) The non-publication order made by the Medical Tribunal of New South Wales on 28 April 2008 be amended, pursuant to the power conferred on this Court by s 91(1)(b) of the Medical Practice Act 1992, to the extent necessary to ensure that it does not prevent publication of the names of any witness, complainant or medical practitioner: · in the transcript of proceedings in this Court; · in the judgment of this Court; and · in any report or publication of the proceedings in this Court or of the judgment of the Court.

CATCHWORDS: MEDICAL TRIBUNAL – disciplinary proceedings – whether s 37 of the Medical Practice Act 1992 in its pre-2008 form, permits the Tribunal to find that examples of unsatisfactory conduct cumulatively justify a finding of "professional misconduct" – whether a finding of impairment necessarily leads the Tribunal to the decision that a medical practitioner is not competent to practice medicine. PROCEDURAL FAIRNESS – whether the Tribunal denied an unrepresented medical practitioner procedural fairness by limiting cross-examination of witnesses and rejecting questions as irrelevant – whether the Tribunal denied procedural fairness by limiting the evidence that the medical practitioner could adduce where the medical practitioner failed to comply with directions - whether Tribunal gave medical practitioner adequate warning that his conduct during the hearing could be taken into account in making findings. NON-PUBLICATION ORDER – whether Court of Appeal should modify the non-publication order made by the Tribunal.