[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.
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 Professions and Trades [189]
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…
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- Case
- [2004] TASSC 130
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: SLICER J
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