HCCC v Abou Hatoum

[2004] NSWCA 30

CITATION:	HCCC v Abou Hatoum & Anor [2004] NSWCA 30 revised - 1/03/2004
HEARING DATE(S):	06/02/04
JUDGMENT DATE:	26 February 2004
JUDGMENT OF:	Spigelman CJ at 1; Meagher JA at 36; Handley JA at 46
DECISION:	Application dismissed with costs.
CATCHWORDS:	Summons for judicial review by way of certiorari challenging a finding of the Medical Tribunal of New South Wales - whether First Opponent discharged his onus to show he has become a fit and proper person to practise medicine - whether jurisdictional error occurred below - whether non-jurisdictional error on the face of the record occurred below. - Held: dismissing the appeal - no jurisdictional error occurred below - no non-jurisdictional error on the face of the record occurred below - appeal dismissed with costs.
LEGISLATION CITED:	Medical Practice Act 1992 (NSW) Supreme Court Act 1970 (NSW)
CASES CITED:	Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 ex parte Lenehan (1949) 77 CLR 403 Landauer v Asser [1905] 2 KB 184 Champsey Bhara & Co v Jivraj Balloo Spinning and Weaving Co Ltd [1923] AC 480, 487 British Westinghouse Co v Underground Electric Railways Co [1912] AC 673 Baldwin and Francis Ltd v Patents Appeal Tribunal [1959] AC 663 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 350-2 Craig v South Australia (1995) 184 CLR 163, 182
PARTIES :	Health Care Complaints Commission v George Abou Hatoum and Medical Tribunal of New South Wales
FILE NUMBER(S):	CA 40560 of 2003
COUNSEL:	Claimant: J Basten QC & M Lynch 1st Opponent: Byrne SC & E Pike
SOLICITORS:	Claimant: D M Swain - Health Care Complaints Commission 1st Opponent: Whitehead Cooper Williams 2nd Opponent: I V Knight - Crown Solicitor

LOWER COURTJURISDICTION:	Medical Tribunal of New South Wales
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	Patten J

CA 40560 of 2003

SPIGELMAN CJ
MEAGHER JA
HANDLEY JA

Thursday, 26 February 2004

HEALTH CARE COMPLAINTS COMMISSION v GEORGE ABOU HATOUM & MEDICAL TRIBUNAL OF NEW SOUTH WALES

On 28 May 2003 the Second Opponent made an Order under s92, Medical Practice Act 1992 (NSW). reinstating the name of Dr G. Abou-Hartoum to the New South Wales register of medical practitioners, subject to certain conditions (detailed in Meagher JA's judgment at paragraph 2).

The Claimant seeks to invoke the procedure for judicial review, pursuant to s69, Supreme Court Act 1970 (NSW), including by way of certiorari under s 69(3), which now requires the Claimant to prove jurisdictional error or non-jurisdictional error on the face of the record.

DECISION
Held, dismissing the appeal with costs:
1. Submissions by the Claimant that there was insufficient evidence before the tribunal below to make the finding it made, fails, as there is no point of law involved in such submission;
2. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 distinguished from this case as the tribunal below did not make the error of…