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Fernando v Medical Complaints Tribunal

Fernando v Medical Complaints Tribunal

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[2007] TASSC 44

CITATION: Fernando v Medical Complaints Tribunal [2007] TASSC 44

PARTIES: FERNANDO, DR NEVILLE
v

MEDICAL COMPLAINTS TRIBUNAL

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 17/2004
DELIVERED ON:  20 June 2007
DELIVERED AT:  Hobart
HEARING DATE:  2 November 2006, 18 May 2007
JUDGMENT OF:  Crawford, Slicer and Evans JJ

CATCHWORDS:

Administrative Law - Appeals from administrative authorities - Statutory appeals from administrative authorities to courts - In general - Appeal from statutory tribunal - Tribunal actively and unsuccessfully opposing appeal - Whether order for costs of appeal should be made against the tribunal.

Ex parte Coorey (1944) 45 SR (NSW) 287; R (Davies) v Birmingham Deputy Coroner [2004] 3 All ER 543, applied.
Aust Dig Administrative Law [109]

Procedure - Costs - Departing from the general rule - Other cases - Statutory tribunal actively and unsuccessfully opposing appeal from the tribunal - Whether order for costs should be made against the tribunal.

Ex parte Coorey (1944) 45 SR (NSW) 287; R (Davies) v Birmingham Deputy Coroner [2004] 3 All ER 543, applied.
Aust Dig Procedure [601]

Statutes - Acts of Parliament - Statutory powers and duties - Exercise - Liability - In general - Statutory protection from liability for act done or purported to be done in good faith for the purpose of administering or exercising the statute - Tribunal actively and unsuccessfully opposing appeal from the tribunal - Whether order for costs should be made against it - Whether statutory protection applies.

Medical Practitioners Registration Act 1996 (Tas), s50(9).
Statutory Authorities (Protection from Liability of Members) Act 1993 (Tas), s4.
Aust Dig Statutes [95]

REPRESENTATION:

Counsel:
             Appellant:  P W Tree SC and G L Johnston
             Respondent and Individual
             Members of it:  P L Jackson
Solicitors:
             Appellant:  Simmons Wolfhagen
             Respondent and Individual
             Members of it:  Jackson & Tremayne

Judgment Number: [2007] TASSC 44
Number of paragraphs: 58

Serial No 44/2007
File No FCA 17/2004

DR NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD J
  SLICER J
  EVANS J (Dissenting in Part)
  20 June 2007

Orders of the Court

That the appellant's application for an order that the respondent pay his costs of the proceedings before the respondent is dismissed.

That Stephen Estcourt QC, Joan Fitznead, Eric V R Ratcliff, Kevin Doran and Jennifer Williams, being the members of the respondent, pay the appellant's taxed costs of the appeal to a single judge and of the appeal to this Court.

Serial No 44/2007
File No FCA 17/2004

DR NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD J
  20 June 2007

The appellant seeks orders that the respondent Tribunal pay his costs of a hearing of disciplinary proceedings before the respondent, his unsuccessful appeal to a single judge and his successful appeal to this Court.

History of proceedings

Consequent upon receipt of complaints by a past patient of the appellant, the Medical Council of Tasmania ("the Council"), as it was obliged to do, referred the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] TASSC 44
Decision Date: 20 June 2007

CaseChat Overview and Summary

Dr Neville Fernando, a medical practitioner, sought orders from the Supreme Court of Tasmania that the Medical Complaints Tribunal pay his costs of a hearing of disciplinary proceedings before the Tribunal, his unsuccessful appeal to a single judge and his successful appeal to this Court. The Tribunal, which had been erroneously named as the respondent to the appeal, actively opposed the appeal. The Full Court held that the appellant was not entitled to an order for his costs of the hearing before the Tribunal, as the Tribunal had no jurisdiction to make an order for costs in his favour. The Court also held that the Tribunal was not entitled to statutory protection from liability for its actions in opposing the appeal, as those actions were not done or purported to be done in good faith for the purpose of administering or executing the Act. The Full Court ordered that Stephen Estcourt QC, Joan Fitznead, Eric V R Ratcliff, Kevin Doran and Jennifer Williams, being the members of the Tribunal, pay the appellant's taxed costs of the appeal to a single judge and of the appeal to this Court.

Orders