Legal Research
Cases
Fernando v Medical Complaints Tribunal

Fernando v Medical Complaints Tribunal

Link copied

Case Copied 12 November 2004 77 min read

Contents

On this page

[2004] TASSC 130

CITATION: Fernando v Medical Complaints Tribunal [2004] TASSC 130

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:  12 November 2004
DELIVERED AT:  Hobart
HEARING DATE/S:  3 and 4 June 2004

JUDGMENT OF: Crawford, Slicer and Evans JJ

CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Admission of fresh evidence – In general – Appeal by way of rehearing from statutory disciplinary tribunal – Power to receive fresh evidence on hearing of appeal – Test to be applied – Power to remit matter for rehearing by tribunal – No express power.
Wollongong Corporation v Cowan (1955) 93 CLR 435, distinguished.

CDJ v VAJ (1998) 197 CLR 172; Ladd v Marshall [1954] 3 All ER 745, considered.
Medical Practitioners Registration Act 1996 (Tas), ss61, 62.
Supreme Court Rules 2000 (Tas), rr693, 672, 704, 709.
Supreme Court Civil Procedure Act 1932 (Tas), ss6(3), 39, 47.

Aust Dig Appeal and New Trial [85]

Professions and Trades – Medical and related professions – Medical practitioners – Discipline and removal from and restoration to Register – Procedure, evidence and appeal – Tasmania – Appeal to Supreme Court – Appeal by way of rehearing from Medical Complaints Tribunal – Power to receive fresh evidence on hearing of appeal – Test to be applied – Power to remit matter for rehearing by tribunal – No express power.
Wollongong Corporation v Cowan (1955) 93 CLR 435, distinguished.

REPRESENTATION:

Counsel:
             Appellant:  P W Tree
             Respondent:  P L Jackson
Solicitors:
             Appellant:  Simmons Wolfhagen
             Respondent:  Jackson & Tremayne

Judgment ID Number: [2004] TASSC 130
Number of paragraphs: 97

Serial No 130/2004
File No FCA 17/2004

DR NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J (Dissenting in part)

SLICER J
EVANS J
12 November 2004

Orders of the Court

Appeal allowed.
The orders of Blow J dated 1 April 2004, by which it was ordered that the appeal from the Medical Complaints Tribunal was dismissed and that the appellant pay the respondent's taxed costs of that appeal, are set aside.
The orders of the Tribunal made on 16 May 2003, other than the order prohibiting the reporting or other disclosure of the name of the patient or of any information that may identify her, are set aside.
The complaint is remitted to the Tribunal constituted by different members for the holding of another inquiry into the complaint.

Serial No 130/2004
File No FCA 17/2004

DR NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD J
  12 November 2004

The referral to the Medical Complaints Tribunal

Consequent upon receipt of…

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.

Keep reading for free

Create a free CaseChat account to read Fernando v Medical Complaints Tribunal and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] TASSC 130
Decision Date: 12 November 2004

CaseChat Overview and Summary

Fernando brought an appeal against the Medical Complaints Tribunal's decision to terminate his registration as a medical practitioner. The tribunal found that Fernando had been guilty of professional misconduct and incompetence, based on complaints from patients and colleagues. Fernando argued that the tribunal had erred in its decision, and that new evidence was available which had not been considered by the tribunal. The case was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the tribunal had the power to admit fresh evidence on appeal and, if not, whether the court had the power to remit the matter for rehearing by the tribunal. The court had to consider the relevant legislation and the principles of natural justice in determining these issues.

The court found that the tribunal did not have the power to admit fresh evidence on appeal, as this was not expressly provided for in the legislation. However, the court did have the power to remit the matter for rehearing by the tribunal, as this was a means of ensuring that the appellant received a fair hearing. The court considered that the new evidence adduced by Fernando was significant and ought to have been considered by the tribunal. The court therefore remitted the matter back to the tribunal for rehearing, with directions to consider the new evidence.

The final orders of the court were that the appeal be allowed, the decision of the tribunal be quashed, and the matter be remitted to the tribunal for rehearing in accordance with the court's directions. The court also ordered that costs be paid by the respondent to the appellant.

Orders