Lee v Health Care Complaints Commission [2012] NSWCA 80

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lee v Health Care Complaints Commission [2012] NSWCA 80 Hearing dates: 30 March 2012 Decision date: 19 April 2012 Before: Macfarlan JA (at [1]); Barrett JA (at [2]); Tobias AJA (at [80]) Decision: 1. Appeal dismissed. 2. The stay ordered by the Registrar on 31 October 2011 be terminated. 3. The suspension order made by the Medical Tribunal on 6 October 2011 (order (a)) be varied by omitting "to commence four weeks from the date of these orders" and substituting "commencing on 17 May 2012". 4. That the appellant pay the respondent'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: PROFESSIONS AND TRADES - health care professionals - medical practitioners - disciplinary proceedings - professional misconduct - failure by practitioner to maintain approved professional indemnity insurance - finding by Medical Tribunal of professional misconduct - suspension from practice - finding of professional misconduct not challenged on appeal - practitioner seeks reduced suspension or fine - practitioner draws comparison with another case said to be similar and submits that that case indicates need to mitigate order of Medical Tribunal - observations on very limited value of comparison with other cases when formulating protective orders - relevance of lack of dishonesty - relevance of passage of time since events in question Legislation Cited: Health Care Complaints Act 1993. s 34A Health Care Liability Act 2001, ss 19(1), 19(3) Health Practitioner Regulation National Law (NSW), schedule 5A, cls 4(1), 4(2), 4(3), ss 162(1), 162(4), 162A(1) Medical Practice Act 1992, ss 37, 127C Supreme Court Act 1970, s 48(2)(f) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Chowdhury v Health Care Complaints Commission [2010] NSWCA 56 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Gayed v Walton [1997] NSWCA 121 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lindsay v Health Care Complaints Commission [2005] NSWCA 356 Prakash v Health Care Complaints Commission [2006] NSWCA 153 R v George [2004] NSWCCA 247 R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209 Saville v Health Care Complaints Commission [2006] NSWCA 298 Tung v Health Care Complaints Commission [2011] NSWCA 219 Wong v The Queen [2001] HCA 64: (2001) 207 CLR 584 Category: Principal judgment Parties: Dr Il-Song Lee - Appellant Health Care Complaints Commission -Respondent Representation: Ms G C Furness SC - Appellant Mr P J Griffin - Respondent Unsworth Legal Pty Limited - Appellant Ms P Hook, Health Care Complaints Commission - Respondent File Number(s): 2011/00341476 Decision under appeal Citation: Health Care Complaints Commission v Dr Il-Song Lee [2011] NSWMT 12 Date of Decision: 2011-10-06 00:00:00 Before: Elkaim SC DCJ; Dr J Kendrick; Dr S Toh; Mr R Kelly File Number(s): 40004/2011 and 40011/2011