Sudath v Health Care Complaints Commission [2012] NSWCA 171

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sudath v Health Care Complaints Commission [2012] NSWCA 171 Hearing dates: 4 May 2012 Decision date: 13 June 2012 Before: Basten JA at [1]; Whealy JA at [51]; Meagher JA at [52] Decision: (1) Appeal from the decision of the Tribunal made on 29 September 2011 be allowed. (2) The ruling of the Tribunal as to the basis upon which the appellant's statement was admitted and marked Exhibit 1 and as to evidence which the appellant proposes to adduce be set aside. (3) Proceedings be remitted to the Tribunal for further hearing according to law. (4) Respondent pay the appellant's costs of this 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 - disciplinary proceedings before Medical Tribunal - separate complaints based on fact of criminal convictions and that practitioner not of good character - reliance on conduct as basis for assessment as to character - whether abuse of Tribunal's process to lead evidence inconsistent with findings on which prior convictions based Legislation Cited: Crimes Act 1900 Criminal Code 1899 (Qld) Health Care Complaints Act 1993 Health Practitioner Regulation (Adoption of National Law) Act 2009 Health Practitioner Regulation Amendment Act 2010 Health Practitioner Regulation National Law (NSW) Human Rights and Equal Opportunity Commission Act 1986 (Cth) Medical Act 1858 (UK) Medical Practice Act 1992 Migration Act 1958 (Cth) Social Security Act 1947 (Cth) Cases Cited: A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 Batistatos v Road and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 Commissioner of Australian Federal Police v Butler (1989) 91 ALR 293 Connelly v Director of Public Prosecutions [1964] AC 1254 Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 222 Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 Garrett v The Queen [1977] HCA 67, 139 CLR 437 General Medical Council v Spackman [1943] AC 627 Habchi v Minister for Immigration and Ethnic Affairs (1980) 43 FLR 230 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Stoker [2011] NSWSC 960 Herron v McGregor (1986) 6 NSWLR 246 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 In Re A Solicitor (John Royston Wishart); Ex parte the Incorporated Law Institute of NSW (unrep, 4 September 1941) In Re Welansky 65 NE 2d 202 (1946) In the matter of Alger Hiss 333 NE 2d 429 (1975) In the matter of Braverman 316 A 2d 246 (1974) Island Maritime Ltd v Filipowski [2006] HCA 30; 226 CLR 328 King v Health Care Complaints Commission [2011] NSWCA 353 Lai v Minister for Immigration, Local Government and Ethnic Affairs (1991) 28 FCR 346 Lindsay v Health Care Complaints Commission [2005] NSWCA 356 Lucire v Health Care Complaints Commission [2011] NSWCA 99 McBride v Walton [1994] NSWCA 199 Medical Board of SA v N, JRP [2006] SASC 19; (2006) 93 SASR 546 Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 Neil Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 38 NSWLR 443 New South Wales Bar Association v Somosi [2001] NSWCA 285 Prothonotary of the Supreme Court of New South Wales v Pangallo (1993) 67 A Crim R 77 R v Gilham [2007] NSWCCA 323; 73 NSWLR 308 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 Reichel v Magrath (1889) 14 App Cas 665 Ridley v Secretary, Department of Social Security (1993) 42 FCR 276 Rogers v The Queen [1994] HCA 42; 181 CLR 251 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Saffron v Federal Commissioner of Taxation (1991) 30 FCR 578 Secretary, Department of Social Security v Ridley (1992) 40 FCR 43 Sudath v R [2008] NSWCCA 207 The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 The Queen v Carroll [2002] HCA 55; 213 CLR 635 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 Weaver v Law Society of New South Wales [1979] HCA 35; (1979) 142 CLR 201 Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29 Wishart v Fraser [1941] HCA 8; 64 CLR 470 Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279 Category: Principal judgment Parties: Dr Aron Kondasinghe Sudath (Appellant) Health Care Complaints Commission (Respondent) Representation: Counsel: P R Boulten SC (Appellant) S Rushton SC, E Brus (Respondent) Solicitors: TressCox Lawyers (Appellant) Health Care Complaints Commission (Respondent) File Number(s): CA 2011/325734 Decision under appeal Date of Decision: 2011-09-29 00:00:00 Before: Deputy Chairperson Judge Colefax SC Dr K Ibery Dr de Carvalho Dr Berglund File Number(s): 40020 of 2008