Chowdhury v Health Care Complaints Commission [2010] NSWCA 56

New South Wales Court of Appeal

CITATION: Chowdhury v Health Care Complaints Commission [2010] NSWCA 56 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10 March 2010

JUDGMENT DATE: 31 March 2010

JUDGMENT OF: Beazley JA at 1; McColl JA at 61; Young JA at 62

1. Appeal allowed; DECISION: 2. Remit the matter for determination by the Tribunal; 3. The respondent to pay the appellant's costs of the appeal.

CATCHWORDS: PROCEDURE – appeal from decision of Medical Tribunal – Medical Practice Act 1992 – s 90 – appeal restricted to point of law - PROCEDURAL FAIRNESS – Medical Practice Act 1992 – s 64(2) – failure to warn of intention not to re-register – penalty not sought by respondent – breach of procedural fairness - PROFESSIONAL CONDUCT – whether conduct deemed unsatisfactory professional conduct or professional misconduct – most appropriate forum to assess conduct – Lindsay v Health Care Complaints Commission [2005] NSWCA 356 – whether question should be remitted to Tribunal for determination

LEGISLATION CITED: Medical Practice Act 1992

CATEGORY: Principal judgment

Lindsay v Health Care Complaints Commission [2005] NSWCA 356 CASES CITED: Prakash v Health Care Complaints Commission [2006] NSWCA 153 Re Doctor Tan Than Le (NSWMT, unreported, 20 September 2001)

PARTIES: Swapan Chowdhury (Appellant) Health Care Complaints Commission (Respondent)

FILE NUMBER(S): CA 2009/298299

COUNSEL: P Blacket SC (Appellant) G Furness; H Bennett (Respondent)

SOLICITORS: Turner Freeman (Appellant) Health Care Complaints Commission (Respondent)