O’SULLIVAN v MEDICAL TRIBUNAL OF NEW SOUTH WALES [2009] NSWCA 374

New South Wales Court of Appeal

CITATION: O'SULLIVAN v MEDICAL TRIBUNAL OF NEW SOUTH WALES [2009] NSWCA 374 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24 September 2009

JUDGMENT DATE: 20 November 2009

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 1; Basten JA at 1

DECISION: (1) Dismiss the summons. (2) Order that the applicant pay the costs of the Health Care Complaints Commission in this Court.

CATCHWORDS: ADMINISTRATIVE LAW – judicial review – intervention in ongoing inquiry – availability of relief against refusal to recuse – order in the nature of prohibition - ADMINISTRATIVE LAW – judicial review – procedural fairness – bias – Medical Tribunal – prejudicial documents agreed to be excluded from tender but inadvertently provided to one Tribunal member – documents identified and looked at by Tribunal members before resolving that documents would not be taken into account – whether Tribunal members should have recused themselves due to reasonable apprehension of bias - LEGAL PRACTITIONERS – medical practitioners – Medical Tribunal – constitution, functions and procedures – relevance to reasonable apprehension of bias

LEGISLATION CITED: Medical Practice Act 1992 (NSW), ss 36, 37, 90, 147, 148, 151, 154, 161, 189; Sch 2, cll 1, 5, 6

CATEGORY: Principal judgment

Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Kioa v West [1985] HCA 81; 159 CLR 550 CASES CITED: Lee v Cha [2008] NSWCA 13 Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724 The Queen v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248 Smith v NSW Bar Association [1992] HCA 36; 176 CLR 256 Webb v The Queen [1994] HCA 30; 181 CLR 41