Tung v Health Care Complaints Commission & Anor [2011] NSWCA 219

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tung v Health Care Complaints Commission & Anor [2011] NSWCA 219 Hearing dates: 9 June 2011 Decision date: 29 July 2011 Before: Giles JA at [1], Campbell JA at [71], Tobias AJA at [72] Decision: (1) Appeal against the Tribunal's finding as to impairment dismissed. (2) Appeal against the orders made by the Tribunal allowed. (3) Set aside the orders made by the Tribunal on 11 March 2010. (4) Remit the matter to the Tribunal for reconsideration of the order(s) (if any) to be made consequent on its findings. (5) First respondent to pay the appellant's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: MEDICAL PRACTITIONERS -Complaints of unsatisfactory conduct and impairment - complaints found proved by Medical Tribunal - deregistration of practitioner ordered - whether denial of procedural fairness in Tribunal not making known its observations of practitioner in relation to impairment - observations of practitioner as witness - confirmatory of matters on which expert witness had diagnosed psychiatric condition - not necessary that Tribunal specifically draw them to practitioner's attention - whether Tribunal failed to engage with medical reports on which practitioner relied - no failure - if any error, was not error in point of law - whether open to make deregistration order - Tribunal failed to address whether impairment such that practitioner not competent to practice medicine - impairment likely to impact on practice of medicine "sooner or later" - finding of present incompetence to practice medicine not open - deregistration order could not be made - matter remitted to Tribunal for reconsideration of orders. Legislation Cited: Health Practitioner Regulation Amendment Act 2010 Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 Cases Cited: Bannister v Walton (1993) 30 NSWLR 699; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Lindsay v Health Care Complaints Commission [2010] NSWCA 194; Lucire v Health Care Complaints Commission (2011) NSWCA 99; Prakash v Health Care Complaints Commission [2006] NSWCA 153. Category: Principal judgment Parties: Dr Margaret Tung - Appellant Karen Mobbs, Health Care Complaints Commission - First Respondent Medical Tribunal of New South Wales - Second Respondent Representation: M Hall - Appellant G Furness SC & R Graycar - First Respondent Submitting appearance - Second Respondent Truman Hoyle - Appellant Health Care Complaints Commission - Respondent File Number(s): 2010/86278 Decision under appeal Citation: Unreported Date of Decision: 2010-03-11 00:00:00 Before: Ainslie-Wallace DCJ, Dr J Hely, Dr P Anderson and Dr C Berglund PhD File Number(s): NSWMT 4006/2009