Tuch v South Eastern Sydney and Illawarra Area Health Service [2009] NSWSC 1207

New South Wales Supreme Court

CITATION : Tuch v South Eastern Sydney and Illawarra Area Health Service [2009] NSWSC 1207 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 27 April 2009, 28 April 2009, 29 April 2009

JUDGMENT DATE : 12 November 2009

JUDGMENT OF : Johnson J at 1

1. It is declared that in making the report and recommendations made on 20 October 2008 ("the Review Committee Report") by the Diabetes Transplant Unit Review Committee appointed by the Defendant pursuant to ss.24 and 29B Health Services Act 1997 ("the Review Committee"), the Review Committee of the Defendant denied the Plaintiff procedural fairness. 2. An order is made in the nature of certiorari quashing the Review Committee Report. 3. It is declared that the decision of Mr Terry Clout, the Chief Executive of the Defendant on 21 November 2008 to accept the Review Committee Report and to implement its recommendations ("the Acceptance Decision") denied the Plaintiff procedural fairness. DECISION : 4. An order is made in the nature of certiorari quashing the Acceptance Decision. 5. It is declared that, in notifying in November and December 2008 the University of New South Wales and the New South Wales Medical Board of the Review Committee Report and the Acceptance Decision, the Defendant denied the Plaintiff procedural fairness. 6. The Defendant is to pay 80% of the Plaintiff's costs of the proceedings. 7. The order for costs may be vacated on application in the event that either party seeks a different costs order.

CATCHWORDS : ADMINISTRATIVE LAW - claim for certiorari and declaratory relief - clinical trial of transplantation of encapsulated human islets into people with diabetes - plaintiff in charge of clinical trial - clinical trial suspended - chief executive of Area Health Service establishes Review Committee under ss.24 and 29B Health Services Act 1997 - Review Committee to review suspension of clinical trial and to report and make recommendations - Review Committee report makes serious criticisms of plaintiff - chief executive accepts report and implements recommendations - report provided to third parties - application to quash report and decision of chief executive to accept report and to provide it to third parties - claim of denial of procedural fairness - apprehended bias - claim that persons were acting as both accusers and decision makers - prejudgment - claim upheld in part - whether certiorari available to quash report and acceptance decision - relief in nature of certiorari and declaratory relief granted