Luo v Health Care Complaints Commission - [2025] NSWSC 1121

Supreme Court

New South Wales

Medium Neutral Citation: Luo v Health Care Complaints Commission [2025] NSWSC 1121
Hearing dates: 19–20 August 2025, further written submissions provided on 2, 9, 17 and 24 September 2025
Date of orders: 29 September 2025
Decision date: 29 September 2025
Jurisdiction: Common Law
Before: Griffiths AJ
Decision:
(1) Time is extended for the plaintiff to rely on the further amended summons dated 4 August 2025.
(2) Further amended summons dismissed.
(3) Plaintiff to pay defendant’s costs.

Catchwords:
OCCUPATIONS — health practitioners — misconduct and discipline — where disciplinary proceedings commenced by Health Care Complaints Commission — where NSW Civil and Administrative Tribunal upheld complaints of unsatisfactory professional conduct and professional misconduct — whether Tribunal erred on a question of law —meaning of “National Board” in s 130 of Health Practitioner Regulation National Law (NSW)

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 55, 63, cl 29 of Sch 5
Coroners Act 2009 (NSW)
Coroners Regulation 2021 (NSW)
Crimes Act 1900 (NSW), s 18
Health Care Complaints Act 1993 (NSW), s 30
Health Practitioner Legislation Amendment Act 2024 (NSW), Sch 1
Health Practitioner National Law Regulation 2018 (NSW), Pt 2
Health Practitioner Regulation National Law 2009 (NSW), ss 5, 23, 25, 31, 35, 130, 139, 139B, 139E
Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW)
Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW)

Cases Cited:
Bruna v Health Care Complaints Commission [2025] NSWCA 105
Callan v Medical Board of Australia [2024] NSWSC 336
Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875
Health Care Complaints Commission v Le [2021] NSWCATOD 104
Health Care Complaints Commission v Luo [2025] NSWCATOD 5
Health Care Complaints Commission v Luo (No 2) [2025] NSWCATOD 7
Health Care Complaints Commission v Luo (No 3) [2025] NSWCATOD 45
Health Care Complaints Commission v Richards [2024] NSWCATOD 37
Health Care Complaints Commission v Robinson [2022] NSWCA 164
Huang v Walton (Court of Appeal (NSW), 20 April 1993, unrep)
Luo v R [2024] NSWCCA 58
Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24; [1986] HCA 40
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Reimers v Medical Board of Australia [2024] NSWCA 164
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40

Texts Cited:
Chinese Medicine Board of Australia, Code of Conduct, March 2014

Category: Principal judgment
Parties: Yun Sen Luo (Plaintiff)
Health Care Complaints Commission (Defendant)
Representation:
Counsel:
Self-represented (Plaintiff)
P Lowson (Defendant)
Solicitors:
Health Care Complaints Commission (Defendant)

File Number(s): 2025/00080326
Publication restriction: Nil
Decision under appeal

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2025] NSWCATOD 5
[2025] NSWCATOD 7
[2025] NSWCATOD 45

Date of Decision:

30 January 2025
30 January 2025
23 April 2025

Before:

R C Titterton OAM, Senior Member
Dr P Coop, Senior Member
Dr S Cochrane, Senior Member
Dr R Leontini, General Member

File Number(s):

2023/00361650

Table of contents

JUDGMENT

Background
HCCC v Luo (No 1) summarised
Complaint one
Complaint three
Complaint four

Dr Ee’s evidence summarised
Dr Ee’s first report dated 30 April 2023
Dr Ee’s second report dated 20 June 2023

Legal framework
Parties’ submissions summarised
Complaint one – Errors 1 to 4
Complaint one – Errors 5 and 7
Complaint one – Error 6
Complaint one – Error 8
Complaint one – Error 9
Complaint one – Error 10
Complaint three – Errors 11 and 12
Complaint four – Error 13

Consideration and disposition
Complaint one – Errors 1, 3 and 4
Complaint one – Error 2
Complaint one – Errors 5 and 7
Complaint one – Error 6
Complaint one – Error 8
Complaint one – Error 9
Complaint one – Error 10
Complaint three – Errors 11 and 12
Complaint four – Error 13

Conclusion

JUDGMENT

The plaintiff, Yun Sen Luo, appeals from a decision of the NSW Civil and Administrative Tribunal (the Tribunal), reported as Health Care Complaints Commission v Luo [2025] NSWCATOD 5 (HCCC v Luo (No 1)). The Tribunal upheld three of the four complaints referred to it by the defendant, the Health Care Complaints Commission (the HCCC), and found that Mr Luo was guilty of unsatisfactory professional conduct under s 139B of the Health Practitioner Regulation National Law (NSW) (National Law) and professional misconduct under s 139E of the National Law.
Mr Luo, who is a litigant in person, alleges that the Tribunal made thirteen errors of law in HCCC v Luo (No 1). His allegations include that the Tribunal exceeded its jurisdiction, made findings of fact for which there was no evidence, failed properly to consider his submissions and failed to afford him procedural fairness. Many of these alleged errors of law reveal no real question of law and are better described as alleged errors of fact. As will be developed below, this has important implications for Mr Luo’s rights of appeal.
Mr Luo also purports to appeal against Health Care Complaints Commission v Luo (No 2) [2025] NSWCATOD 7 (HCCC v Luo (No 2)) and Health Care Complaints Commission v Luo (No 3) [2025] NSWCATOD 45 (HCCC v Luo (No 3)). By HCCC v Luo (No 2), the Tribunal rejected Mr Luo’s applications for summary dismissal of the HCCC’s amended complaint and the exclusion of the evidence of the HCCC’s expert witness, Dr Carolyn Ee. Mr Luo requires leave to appeal against these interlocutory decisions but no such leave has been sought and he steadfastly maintains that he has an appeal as of right.
In HCCC v Luo (No 3), the Tribunal gave reasons for making minor corrections to HCCC v Luo (No 1) pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). Despite the fact that Mr Luo formally appeals against this decision, no grounds of appeal are specifically directed to it, nor is it addressed by Mr Luo in his written submissions.

Background

Mr Luo is a registered health practitioner, having first registered in New South Wales with the Australian Health Practitioner Regulation Authority (AHPRA) on 8 March 2013 as a Chinese medicine practitioner. His primary place of practice was in Burwood, where he practised Chinese medicine and acupuncture.
Between 26 May 2018 and 8 June 2018, Mr Luo treated an elderly woman referred to in HCCC v Luo (No 1) and herein as “Patient A”. Although Patient A suffered from Type 2 diabetes, Mr Luo was asked to treat her for a long-term skin condition. The Tribunal found that he directed that she cease taking the Western medications prescribed to her by doctors treating her for high blood sugar and commence using herbal preparations prescribed by him. Mr Luo treated Patient A at his clinic in Burwood and later, when her health deteriorated, conducted home visits at the request of her daughter, who is referred to in HCCC v Luo (No 1) and herein as “Person B”. There were also “WeChat” exchanges between Mr Luo and Person B.
On 8 June 2018, Patient A was admitted to Hornsby Hospital where she was shortly thereafter pronounced dead. As the Tribunal noted in HCCC v Luo (No 1) at [96], the cause of death was given in Hornsby Hospital Assessment Documents as “Likely cardiac arrest from hyperkalemia in context of non-managed Type 2 managed Type 2 diabetes [sic]”. In a footnote to this paragraph, the Tribunal emphasised that it was not making a finding as to the cause of Patient A’s death but was simply recording what the Assessment Documents stated. As will be developed, the issue of the cause of Patient A’s death figured prominently and repeatedly in Mr Luo’s case and in a somewhat confused and contradictory manner. The HCCC’s position simply is that the cause of death was irrelevant to “stage one” of the proceedings having regard to the terms of the amended complaint and the way in which the case was conducted below.
Mr Luo was indicted on a single count of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).
On 25 March 2022, Judge Pickering SC (sitting in a judge-alone trial) found Mr Luo not guilty, concluding that, while Mr Luo’s treatment of Patient A was “utterly incompetent”, he could not be satisfied to the requisite standard that it was criminal in nature. Mr Luo subsequently made an oral application to recover costs, which was heard on 4 November 2022. The application was declined.
On 3 May 2023, the Court of Appeal granted limited leave to Mr Luo to pursue an appeal against the rejection of his application for costs (see Luo v R [2024] NSWCCA 58). This was on the basis that he was “disadvantaged by his poor English language skills and unrepresented, both in this Court and below on the costs application” (at [28]). The appeal was dismissed.

HCCC v Luo (No 1) summarised

On 14 November 2023, the HCCC filed in the Tribunal an application for disciplinary findings and orders under the National Law against Mr Luo. This was followed by an amended complaint, filed on 10 May 2024, consisting of four complaints. It was alleged that Mr Luo was guilty of unsatisfactory professional conduct and professional misconduct (ss 139B and 139E of the National Law, respectively). After a 7-day hearing in May 2024, the Tribunal found that three of the complaints, being complaints one, three and four, were proven (at [319]).
Given the importance of ss 139B and 139E of the National Law to the HCCC’s complaints, it is well to set out the relevant provisions:

139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following—
(a) Conduct significantly below reasonable standard
Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
…
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

…
139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law, professional misconductof a registered health practitioner means—
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration.

The HCCC relied on two reports of Dr Carolyn Ee. The first report, dated 30 April 2023, addressed questions posed by the HCCC in relation to the standard expected of medical practitioners. Dr Ee’s second report, dated 9 June 2023, responded to Mr Luo’s written comments on her first report. Dr Ee was cross-examined at length by Mr Luo before the Tribunal. The Tribunal accepted Dr Ee’s opinion evidence in relation to complaints one, three and four (at [191]). Mr Luo did not rely on any independent expert evidence. It will be necessary to refer at some length to Dr Ee’s evidence because many of Mr Luo’s grounds relate to it.

Complaint one

Complaint one alleged that Mr Luo engaged in unsatisfactory professional conduct under ss 139B(1)(a) or (l) of the National Law by engaging in conduct that: (a) demonstrated the judgment he possessed or care he exercised fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (2) was improper or unethical.
This complaint was based on 14 particulars, noting that Particulars 3 and 4 and some sub-particulars were not pressed by the HCCC (see at [9]). In brief, the HCCC alleged that between 26 May 2018 and 8 June 2018, Mr Luo:

Failed to obtain a sufficient medical history for Patient A and advised her to cease all “Western medicine”, including her prescribed medication for “high blood sugar” (Particulars 1 and 2).

Failed to consider Patient A’s new symptoms during a subsequent consultation three days later (Particular 5).

Failed to appropriately assess the further deterioration of Patient A’s health, which required urgent medical attention (Particulars 6-13).

Failed to recommend that Patient A be treated by a suitably qualified medical practitioner (Particulars 6–13).

Failed to recognise that the prescribed Chinese diet therapy and Chinese herbal medicines were no longer appropriate for the patient (Particulars 11, 12 and 13).

Failed to reconsider his diagnosis and treatment plan in light of the patient’s presenting conditions (Particulars 11–13).

Breached the Chinese Medicine Board of Australia’s Code of Conduct published in 2014 (CMBA CoC) in failing, inter alia, to consider the safety of Patient A, recognise and work within the limits of his competence, maintain adequate records and provide treatment options based on the best available information (Particular 14). (National Boards, of which the Chinese Medicine Board of Australia is one, are empowered by s 39 of the National Law to develop and approve codes and guidelines to provide guidance to registered health practitioners and about other matters relevant to the exercise of their functions.)

With respect to (a) above, the Tribunal found Particular 1 established based on the expert evidence of Dr Ee, who was retained by the HCCC. Dr Ee opined that Mr Luo’s assessment and diagnosis of Patient A during the initial consultation on 26 May 2018 “fell below the standard expected”, and that he should have taken a proper history regarding the cause of “high blood sugar” and clarified with Patient A whether she had diabetes. This same reasoning was applied to Particular 2, which alleged that Mr Luo advised Patient A to cease all Western medicine. The Tribunal found this allegation to be substantiated, citing the evidence of Person B, which the Tribunal said was “entirely consistent with the views [Mr Luo] expressed in his oral evidence to the Tribunal, namely that Western medicine can cause death” (at [203]).
With respect to (b) above, the Tribunal found that Particular 5 was established on the evidence, referring to Mr Luo’s treatment records and his submissions (which contained both submissions and evidence), and Dr Ee’s first report. After setting out the contents of Mr Luo’s treatment records, Dr Ee opined that “Given [Mr Luo] noted that there were new symptoms (nausea, reflux, bloating) I would have expected that he consider these to be adverse events and adjust the treatment significantly … I consider that his treatment falls below the standard expected because of the failure to adjust it accordingly given the new symptoms” (at [211]).
With respect to (c)-(f) above, the Tribunal found that, between 30 May and 8 June 2018, Mr Luo failed appropriately to assess the deterioration of Patient A’s symptoms and make appropriate recommendations, based on Dr Ee’s review of WeChat messages between Person B and Mr Luo regarding Patient A’s symptoms. In her first report, Dr Ee opined that the advice supplied by Mr Luo fell below the standard expected of practitioners in his position and that he should have called for urgent medical attention. The Tribunal rejected Mr Luo’s submission as to his version of events, finding that it was inconsistent with contemporaneous WeChat conversations and was “self-serving” and “borders on being fanciful” (at [248]). Accordingly, these aspects of Particulars 6 to 13 were found to be established (apart from Particular 8, because the Tribunal concluded that it did not have sufficient evidence to make such a finding).
With respect to (g) above, the Tribunal found that Mr Luo’s submissions on Particular 14 were either “not relevant” to the issues before the Tribunal or that the balance of the submissions were “disorganised and confused denials of any breach of and of the clauses of the 2014 CMBA COC” (at [267] and [269]). Turning to each of the sub-particulars, the Tribunal concluded that only Particular 14(d) and (e) were established, namely that Mr Luo did not consider the balance of benefit and harm when treating Patient A nor consult or take advice from colleagues while treating Patient A (at [282]-[288]). The Tribunal found in relation to the other sub-particulars that they were not addressed in Dr Ee’s report or that her reasoning was not sufficiently detailed for it to be established.
On this basis, the Tribunal broadly accepted the expert opinion of Dr Ee in establishing most of the particulars alleged by the HCCC and considered that Particulars 6 to 13, individually, constituted unsatisfactory professional conduct under s 139B(1)(a) of the National Law (at [292]-[295]). The Tribunal did not find it necessary to consider whether unsatisfactory professional conduct was established pursuant to s 139B(1)(l) of the National Law having found that s 139B(1)(a) was satisfied.

Complaint three

Complaint three alleged that Mr Luo engaged in unsatisfactory professional conduct by engaging in conduct which contravened s 130(1) of the National Law. That provision is relevant in the circumstances here because s 139B(1)(b) of the National Law provides that unsatisfactory professional conduct includes: “contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention”.
Section 130 of the National Law relevantly provides:

130 Registered health practitioner or student to give National Board notice of certain events
(1)    A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event.
(2)    A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken.
…
(3)    In this section—
relevant event, in relation to a registered health practitioner, means—
(a)    the practitioner is charged with—
…
(ii)    an offence punishable by 12 months imprisonment or more …

The only particular provided in respect of complaint three was that Mr Luo contravened s 130 by failing to notify the National Board within seven days that, on 16 August 2018, he was charged with manslaughter under s 18(1)(b) of the Crimes Act. There is an issue as to which was the correct entity to which notification was to be given in compliance with s 130, to which I will return.
Mr Luo relied on two documents regarding complaint three, being an email from his solicitor attaching a draft email to be sent to his insurer in relation to his charge of manslaughter, and a letter from the HCCC dated 22 August 2018 to Mr Luo notifying him that he was being investigated by it in relation to the charge, but that the investigation would be paused pending the outcome of the criminal proceedings.
Although the Tribunal found at [308] that it was plain that the HCCC knew about the criminal charge, it stated that this did not prove that Mr Luo had complied with his obligations under s 130. The Tribunal then explained at [310] why complaint three was upheld:

As we are satisfied that the practitioner did not inform the Board within 7 days of being charged that he had in fact been charged (and we reject the practitioner’s submissions to the contrary), it follows that we find the Particular to Complaint Three established and therefore Complaint Three established, in that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law.

It is notable that the Tribunal failed directly to identify which entity it considered to be the “Board”, let alone the “National Board” for the purposes of s 130. I consider that this issue was raised by Mr Luo in the proceedings in this Court (see further below).

Complaint four

Complaint four alleged that Mr Luo was guilty of professional misconduct under s 139E of the National Law by engaging in: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or (b) more than one instance of unsatisfactory professional conduct that, considered together, amounted to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration.
In relation to complaint four, the HCCC repeated and relied upon Particulars 1, 2 and 5 to 14 of complaint one to establish that Mr Luo was guilty of professional misconduct. The Tribunal recounted the relevant principles that relate to findings of professional misconduct as stated in Health Care Complaints Commission v Le [2021] NSWCATOD 104 and Health Care Complaints Commission v Richards [2024] NSWCATOD 37, accepting that professional misconduct is a category of unsatisfactory professional conduct which is sufficiently serious to warrant suspension or cancellation (at [315]-[316]). Having found the relevant particulars had been established in relation to complaint one, the Tribunal determined that, applying the relevant principles in the circumstances, complaint four was upheld (at [318]).
Having concluded that some of the particulars to complaints one, three and four were established, the Tribunal listed the matter for directions in relation to “stage two” of the proceedings, reserving costs.
Stage two is presently stayed pending the outcome of this appeal.

Dr Ee’s evidence summarised

In circumstances where Mr Luo seeks to challenge many aspects of Dr Ee’s evidence and the Tribunal’s reliance on it, it is necessary to summarise at some length Dr Ee’s two reports to the HCCC. I will defer summarising relevant parts of her oral evidence.
At the relevant time, the HCCC was empowered by s 30(1) of the Health Care Complaints Act 1993 (NSW) to obtain a report from a person who, in the HCCC’s opinion, “is sufficiently qualified or experienced to give expert advice on the matter the subject of the complaint”. Section 30(4) provided that such a report may be used in disciplinary or related proceedings under the National Law but may not be admitted or used in any other proceedings except with the consent of the author, the complainant and the person against whom the complaint was made. (Section 30 of the Complaints Act was repealed on 31 May 2024 by Sch 1[5] of the Health Practitioner Legislation Amendment Act 2024 (NSW), but it was in substance replaced by a new s 91A, which was introduced by Sch 1[9] of the Amendment Act.)
Dr Ee was a registered Chinese medicine practitioner (division of acupuncture – clinical registration until November 2022, research registration from that point). She obtained her Chinese medicine qualifications at RMIT University in 2004, which qualified her to register both as an acupuncture practitioner and a Chinese herbal medicine practitioner. She practised as a Chinese herbal medicine practitioner from 2006–2008. She was a member of the Chinese Medicine Board of Australia Reference Group from 2016–2018 and is Chair of the Royal Australian College of General Practitioners Integrative Medicine Specific Interest Network (see HCCC v Luo (No 2) at [101]). Her sixteen-page curriculum vitae, which was attached to her first report, included details of her academic qualifications, her research experience, her publications and her grants and funding.

Dr Ee’s first report dated 30 April 2023

By a letter dated 31 March 2023, Dr Ee was asked by the HCCC to provide an expert report addressing two primary areas:

General advice about the manner in which Chinese medicine is competently and appropriately practised in conjunction with Western medicine in Australia and her opinion on the “standard reasonably expected of a practitioner of an equivalent level of training or experience to [Mr Luo], applicable at the time of the conduct”.

Her opinion in relation to Mr Luo’s care and treatment of Patient A with reference to various specific questions on that topic, in relation to which Dr Ee was asked to advise on each of the following matters:

the standard reasonably expected of a practitioner of an equivalent level of training or experience;

whether she considered Mr Luo’s conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and

if she considered Mr Luo’s conduct fell below the relevant standard, whether she considered the departure to be significantly below the standard.

Dr Ee was instructed to make reference to “any professional guidelines, standards or literature that you consider to be relevant to the matter”.
The HCCC provided Dr Ee with a statement of assumed facts, which summarised complaints which the HCCC had received from the NSW Police and the Chinese Medicine Council of NSW concerning Mr Luo’s care and treatment of Patient A, a statement of the key facts and a bundle of documents (which included Patient A’s medical records dated 8 June 2018 from Hornsby Hospital, various WeChat messages between Mr Luo and Person B, a transcript of proceedings before the HCCC under s 150 of the National Law convened on 27 June 2018, and the 2014 version of the CMBA CoC).
Dr Ee’s first report to the HCCC is dated 30 April 2023. In brief, in response to the question that she comment on the manner in which Chinese medicine is competently and appropriately practised in conjunction with Western medicine in Australia, Dr Ee stated that “Chinese medicine practitioners are encouraged to work in conjunction with Western medical doctors” and referred in this context to recommendations to that effect in a recent publication styled “Chinese Medicine Board Standards for Professional Capabilities for Chinese Medicine Practitioners”. She opined that “Chinese medicine should not be practised without the assistance of Western medicine to aid with an accurate diagnosis … and acute emergency treatment”.
Dr Ee responded to each of the specific questions she was asked to address. I will not summarise all her responses but will focus on those which are relevant to the proceeding. The first question Dr Ee was asked was as follows:

Please provide your opinion in relation to the adequacy of [Mr Luo’s] assessment of [Patient A] during their initial consultation on 26 May 2018. In your response, please address whether [Mr Luo] ought to have made enquiries as to the source of, or reasons for, [Patient A’s] “high blood sugar”; and whether he ought to have made enquiries as to which prescribed medications she was taking to treat her “high blood sugar.”

Dr Ee opined that Mr Luo’s assessment of Patient A fell below the standard expected. After noting Mr Luo’s record that Patient A had “high blood sugar” and referring also to his evidence in the s 150 proceeding, Dr Ee stated that it “was clear that [Mr Luo] was familiar with the term diabetes, and considered this somewhat related to high blood sugar, so it follows that he should have clarified if the patient had diabetes or not”. Dr Ee also referred to cl 3.3 of the CMBA CoC regarding the need for effective communication between the practitioner and the patient and obtaining an accurate record of the patient’s medical history, which she considered Mr Luo failed to do.
Dr Ee opined that Mr Luo’s conduct fell “significantly below” (i.e. reflecting the language of the definition of unsatisfactory professional conduct in s 139B(1)(a) of the National Law, as set out at [12] above) the standard expected in respect of the following matters:

The appropriateness of Mr Luo’s advice to Patient A at her initial consultation on 26 May 2018 that she cease all Western medicines, including her prescribed medications for “high blood sugar”.

The appropriateness of his care and treatment of Patient A on 30 May 2018 (with reference to the WeChat messages) when he failed to recommend medical review at that stage even though he was told that Patient A was “in a lot of [abdominal] pain”.

With reference to Mr Luo’s treatment notes and the WeChat messages, Mr Luo’s failure to advise Patient A to attend for medical care, where she had been vomiting for four days up to 2 June 2018 and Person B told Mr Luo that there were streaks of blood in her mother’s vomit and she was vomiting constantly.

Again, with reference to the WeChat messages, by 5 June 2018 Mr Luo was aware that Patient A’s dizziness had resumed and that she was unable to walk from the bathroom to the bedroom without assistance, yet he advised ongoing Chinese herbal medicine and diet therapy rather than recommending urgent medical attention. In this respect, Dr Ee referred to relevant parts of the CMBA CoC.

With reference to Mr Luo’s treatment notes and the WeChat messages, Dr Ee said that Mr Luo breached multiple aspects of the CMBA CoC in relation to the care and treatment of Patient A on 6 June 2018 when Patient A’s condition had further deteriorated.

Similar opinions were expressed with reference to Mr Luo’s care and treatment of Patient A on 7 June 2018, when Mr Luo told Person B that the “situation was holding up”. This was described by Dr Ee as “inappropriate advice for someone who is almost unconscious, and [Mr Luo] should have called for immediate medical attention”. Dr Ee opined that Mr Luo had failed to act in Patient A’s best interests and failed to consider her safety as a priority, referring to the Handbook of Internal Medicine, which recommended additional urgent assistance in Patient A’s circumstances on 7 June 2018.

A similar opinion was expressed in relation to Mr Luo’s care and treatment of Patient A on 8 June 2018 when he prescribed diet therapy to an unconscious person who was suffering from a severe acute illness and was unable to eat or drink. She opined that Mr Luo should have called for urgent medical attention.

Dr Ee explained why Mr Luo’s diagnosis should have changed after the initial consultation due to the deterioration of Patient A’s condition in multiple respects and opined that his failure to do so was significantly below the standard expected.

With reference to the CMBA CoC, Dr Ee also explained in some detail why she considered that Mr Luo had breached in a serious way various parts of the CMBA CoC relating to patient safety.

With reference to Mr Luo’s conduct in prescribing Chinese diet therapy for Patient A once she had become acutely unwell, particularly after 6 June 2018 when she had become “seriously unwell”, Dr Ee opined that one of the “grossest breaches of the code of conduct in terms of patient safety” was Mr Luo’s instruction to Person B to give her mother tomato soup instead of seeking urgent medical attention when he was told that Patient A was “unrousable” at 9:30 am. She added that it was “completely illogical to prescribe diet therapy to an unconscious person not to mention against the principles of diet therapy which is aimed for chronic illness and health promotion”.

Dr Ee also explained why she considered that Mr Luo’s conduct fell “below” (as opposed to “significantly below”) the standard expected in relation to such matters as:

The appropriateness of his diagnosis of Patient A at the initial consultation on 26 May 2018.

The appropriateness of his care and treatment of Patient A on 29 May 2018, including but not limited to his prescribing of Chinese herbal medicines, Chinese diet therapy and acupuncture to treat her symptoms as summarised in [2.4] of the statement of assumed facts.

With reference to the WeChat messages, Dr Ee stated that she considered that Mr Luo’s conduct fell below the standard expected in relation to the appropriateness of his care and treatment of Patient A on 31 May 2018.

Dr Ee described Mr Luo’s treatment records in respect of Patient A as falling below the standard expected, with reference to the “Health Practitioner Regulation 2010 (NSW)”, which was presumably a reference to the Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW). (In any case, this reference appears to be in error because the 2010 regulation was repealed in 2016 and replaced with the Health Practitioner Regulation (New South Wales) Regulation 2016. The error is, however, immaterial because it relates to complaint two, which the Tribunal found had not been established.)

Dr Ee’s second report dated 20 June 2023

By a letter dated 9 June 2023, the HCCC asked Dr Ee to provide a supplementary report which responded to Mr Luo’s written submissions dated 9 June 2023 on her first report. She was asked to consider those submissions and advise whether or not they changed any opinions expressed in her first report.
Significantly, the HCCC emphasised to Dr Ee that it was not concerned with Patient A’s cause of death and was only concerned with Mr Luo’s care and treatment of Patient A. The HCCC instructed Dr Ee as follows (italics in original, emphasis added):

The Commission notes that parts of Mr Luo’s submissions address whether it could have been specific medicines which caused the Subject to go into cardiac arrest as opposed to his care and treatment of her. The Commission is not concerned with what caused the Subject’s death, it is only concerned with whether Mr Luo’s care and treatment of the Subject (including any advice he provided via WeChat messages) was significantly below the standard reasonably expected of a Chinese medicine practitioner of an equivalent level of training or experience. The Commission is similarly not concerned with facts disputed by Mr Luo. Please continue to rely on the statement of assumed facts provided to you on 31 March 2023.

In her second report (dated 20 June 2023), Dr Ee responded in detail to many of Mr Luo’s submissions regarding her first report, including his challenge to her qualifications and asserted lack of experience. She expressly confirmed that the “standards” she was provided with and to which she referred in her first report was the 2014 version of the CMBA CoC, which she described as being relevant to practice standards in 2018 when the conduct complained of occurred.
With respect to Mr Luo’s claim that it was “unreasonable and wrong to interpret or treat what patient said to her family and friend as what I said to patient”, Dr Ee confirmed that her first report was based on the statement of assumed facts, the WeChat messages and Mr Luo’s clinical records.
There are two particular parts of the second report which should be highlighted, having regard to Mr Luo’s appeal. The first part relates to Mr Luo’s claim that Patient A’s “cardiac arrest was not caused by the treatments of Chinese herbal medicine” and his claim that neither Patient A nor her family had told him about Patient A’s diabetes, did not plan to let him treat the diabetes and knew that he was not treating diabetes. He also claimed in his submissions on the first report that he had not advised Patient A to stop taking the medications used for her high blood sugar level. To each of those particular submissions, Dr Ee simply commented that they were either irrelevant or had been extensively detailed in her first report and said that she had nothing to add.
In her second report, Dr Ee identified the following “repeated breaches of the code of conduct” as providing the basis for her determination that Mr Luo’s practice fell significantly below the standard expected (without alteration):

I. Failure to practise safely and effectively
II. Failure to understand the principles of risk minimisation
III. Failure to make the care of patients the first concern,
IV. failure to develop good relationships with colleagues to enhance patient care,
V. failure to work within limits of competence and scope of practice,
VI. failure to consider the balance of benefit and harm,
VII. failing to consult and take advice from colleagues where appropriate.

Dr Ee identified the following particular incidents as underpinning her opinion that Mr Luo’s practice fell significantly below the standard expected:

1. Instructing [Patient A] to cease Western medications (26th May)
2. Failing to recommend medical review upon [Patient A] reported to be “in a lot of [abdominal] pain” (30th May)
3. Failing to recommend medical review upon [Patient A] reported to be vomiting as soon as she had eaten, being in pain and being in bed for two days (31st May)
4. Failing to recommend medical review upon reports of streaks of blood in [Patient A’s] vomit, [Patient A] reported to not having been able to eat anything for 2 days, and vomiting constantly (2nd June)
5. Failing to recommend medical review upon reports of [Patient A] reported to be suffering from dizziness, weakness, and inability to walk to the bathroom unassisted (5th June)
6. Failing to recommend medical review upon reports of [Patient A] being confused, could not stand unassisted, hallucinating (thinking there was no water in a cup) (6th June)
7. Failing to recommend medical review upon reports of [Patient A] being very feeble, very unwell, eyes glazed and fixed, unable to reach the toilet, and collapsing (7th June) noting that [Person B] had asked [Mr Luo] if her mother was in danger
8. Failing to recommend urgent medical review upon reports of [Patient A] being unable to be woken (i.e. unconscious) (8th June)

The second part of the second report which warrants emphasis relates to the final paragraph of that report, in which Dr Ee said (emphasis added):

The remaining responses are all repetitive, irrelevant, or extensively covered already in my report. My only comment is that I did not see evidence of [Patient A’s] family being warned that she was in danger. The continued treatment including when she was unable to be roused, indicates the opposite.

As will be further developed, Mr Luo complains that this comment is inconsistent with other evidence given by Dr Ee (see [77(e)] below).
For completeness, it should also be noted that Dr Ee provided an expert report in 2018 to the Director of Public Prosecutions (DPP) in relation to the prosecution of Mr Luo for manslaughter. On day three of the Tribunal hearing, the HCCC made clear that it did not rely on this report in the Tribunal proceedings. A copy of the report was withdrawn from the HCCC’s tender (and other redactions were made to other HCCC evidence relating to the issue of causation). Despite this clear statement of position (and noting that the Tribunal made no express reference to the report to the DPP after the document was withdrawn), Mr Luo complains that the opinions expressed therein by Dr Ee carried through to her subsequent two reports to the HCCC. He points in particular to Dr Ee’s following conclusion in her report to the DPP (emphasis added):

Conclusion
The purpose of the Chinese Medicine Board of Australia is to maintain the safety of the public who access Chinese medicine services. There is a clear Code of Conduct which outlines the practitioner’s responsibility in terms of prioritising patient safety. Dr Luo repeatedly failed to ensure his patient’s safety. Notwithstanding the lack of clarity as to whether he actually advised the deceased to cease her medication, which medication she was on, and some conjecture around whether this would lead to DKA, it was clear that she did die from a cardiac arrest, was hyperkalemic at the time of death, and was indeed “in DKA”. She deteriorated in an alarming and rapid fashion from 30^th May 2018, becoming comatose on the day of her death. During this time, Dr Luo was in constant contact with [Person B] who regularly described and raised concern about her mother’s declining condition. Towards the end of her life the deceased was barely conscious, could not walk, could barely ingest anything orally, and was described as unresponsive on the morning of her death. Dr Luo received detailed descriptions of the deceased’s condition and saw her during the time she was barely responsive. We have evidence from the WeChat messages that at no time did Dr Luo advise medical review. He has breached the Code of Conduct and failed his patient on multiple occasions. There were many opportunities to intervene and recommend medical review that he failed to act upon. I consider his actions negligent to the highest degree and consider them substantially below the standard I would expect of a registered Chinese Medicine practitioner.

For reasons which I will develop below, I reject Mr Luo’s complaint that the issue of causation carried through into Dr Ee’s subsequent two reports to the HCCC.

Legal framework

The appeal is governed by Pt 6 of Sch 5 of the CAT Act. Clause 29(4) of Sch 5 provides:

Basis or grounds for appeal An appeal to a court under this clause—
(a) in the case of an appeal against a decision for the purposes of the Legal Profession Uniform Law (NSW) — is an appeal to which section 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing rather than a new (de novo) hearing, and
(b) in the case of any other appeal (a non-lawyer appeal)—may be made as of right on any question of law, or with the leave of the court, on any other grounds.

It is not in dispute that Mr Luo’s case is a “non-lawyer appeal”, such that his rights of appeal are prescribed by cl 29(4)(b). As such, an appeal only lies as of right in respect of “any question of law”. In Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 at [4], Leeming JA observed that there is “no satisfactory test of universal application to define a question of law”. However, as his Honour explained at [6] (see also at [22] per White JA):

On any view, it is necessary for an appellant who invokes s 119 or an equivalent provision to frame one or more questions which, so it is claimed, amount to “questions of law“. … The approach taken by the appellants, when reminded by the court of the limited scope of the appeal they had brought, was to frame questions in the form “Did the Appeal Panel err at law in “making, or failing to make, some finding, or in upholding the decision at first instance. Obviously, it is not possible, merely by the device of asking whether the Tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal.

Mr Luo’s further amended summons fails clearly to identify or frame any question of law; instead, Mr Luo simply asserts that, by doing and failing to do various things, the Tribunal “acted without jurisdiction, or otherwise erred in law”. Many of these errors of law are properly characterised as alleged errors of fact, for which leave to appeal is required. In any case, it is well established that not all errors of law made by tribunals raise “questions of law”. As Leeming J observed in Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [53] (Meagher JA and Griffiths AJA agreeing) (citations omitted):

… [I]t is well settled in relation to statutes conferring limited rights of appeal from tribunals (which are often of a specialist nature) to a court that a particular finding which is “perverse” or “unreasonable” or “not reasonably open” is not ordinarily a question of law …

In addition to the terms of cl 29(4)(b), Mr Luo’s rights of appeal are also qualified by cl 29(6), which requires a grant of leave in certain other circumstances:

Leave required in certain cases Despite subclauses (2)–(5), an appeal does not lie to a court under this clause against any of the following decisions except by leave of the court—
(a)    an interlocutory decision of the Tribunal,
(b)    a decision made with the consent of the parties,
(c)    a decision as to costs.

Mr Luo has not applied for leave to appeal on any of the grounds in his further amended summons despite the fact that this omission was drawn to his attention in the HCCC’s written submissions dated 24 June 2025. He continued to assert, repeatedly, that all thirteen so-called “errors of law” identified in the further amended summons raised questions of law.
As noted, the Tribunal has dealt only with “stage one” of the proceedings. It does not follow, however, that HCCC v Luo (No 1) is an “interlocutory decision” for the purposes of cl 29 (see Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [82]–[86] per Simpson AJA, with whom Leeming and Kirk JJA agreed, and [18] per Leeming JA, with whom Kirk JA agreed).
By contrast, HCCC v Luo (No 2) and HCCC v Luo (No 3) are clearly interlocutory decisions for the purposes of cl 29. It follows that leave is required to appeal from these decisions, including on questions of law. Again, no such leave has been sought.
Finally, the powers of the Court in hearing and determining non-lawyer appeals should briefly be mentioned. These powers are provided for in cl 29(7) and (8):

(7) Non-lawyer appeals The court in a non-lawyer appeal may—
(a) decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.

(8) In determining a non-lawyer appeal, the court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:
(a) the decision under appeal to be confirmed, affirmed or varied,
(b) the decision under appeal to be quashed or set aside,
(c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,
(d) the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the court.

For the purposes of cl 29(7), I do not consider that the grounds of appeal raised by Mr Luo warrant a new hearing. Nor has he sought to rely on new evidence.

Parties’ submissions summarised

The various grounds of appeal and related submissions advanced by Mr Luo are confusingly expressed and substantially overlap with one another. They also repeat many, if not all, of the arguments he ran unsuccessfully below.
At the outset of the hearing, Mr Luo was granted leave to rely on a further amended summons dated 4 August 2025, as well as amended written submissions dated 4 August 2025 (totalling 69 pages) and amended written submissions in reply also dated 4 August 2025 (totalling 25 pages). His amendments were reflected in red tracking.
In substance, Mr Luo’s case is structured around thirteen errors alleged to have been committed by the Tribunal in dealing with complaints one, three and four (complaint two, relating to Mr Luo’s clinical record-keeping, was found not to be established). It is convenient to summarise Mr Luo’s case and the parties’ submissions with reference to these alleged errors, ten of which relate to the Tribunal’s handling of complaint one specifically.

Complaint one – Errors 1 to 4

Errors of law 1 to 4 relate to the Tribunal’s handling of complaint one insofar as it concerned the cause and manner of Patient A’s death. They are as follows (emphasis added to show changes made in the further amended summons):

Error 1 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars of complaint one and Complaint one by accepting and concluding the cause and manner of death was unascertained cause of death.
Error 2 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by concluding and accepting the expert witness and expert opinions that were ~~tempered~~ tampered and became ~~fault~~ false statements and the expert witness became unsuitable expert and the evidences of expert opinions became inadmissible in illegal proceedings, as the expert witness was instructed to give opinions base on evidences of opinions of causations and HCCC told the Tribunal that the case of HCCC was not base on causation and removed the evidences of opinions of causation and the Tribunal is not the role to conclude the cause of death and causation issues.
Error 3 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the complaint one and particulars of Complaint one that related to and or involved the causation issues while the Tribunal NCAT is not the role to conclude the cause of death and causation issues and the case was not base on causation and there is no evidences to support and or prove such causation issues and the Code of Conduct of CMBA.
Error 4 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by saying that the natural cause was not relevant to this case and then rejecting the evidences that were relevant to causation issues and opinions of expert and Complaint One and particulars of Complaint one while they all related to and or involved the causation issues.

In his amended written submissions dated 4 August 2025, Mr Luo makes lengthy and overlapping submissions in relation to these alleged errors:

As to Error 1, Mr Luo submits that the HCCC ran its case on the basis of “causation” and that the Tribunal relied on “illegal evidences” concerning causation. He appears to submit that it was improper for the Tribunal to treat Patient A’s cause of death as “unascertained”, as he contends that the Coroners Court has exclusive jurisdiction to determine the issue. He also appears to submit that there was no authorised evidence of the cause of death from the Coroners Court and that, in these circumstances, the Tribunal was obliged to treat the cause of death as “natural causes”. He refers in this respect to several provisions in the Coroners Act 2009 (NSW) and Coroners Regulation 2021 (NSW).

As to Error 2, Mr Luo submits that Dr Ee’s expert reports were “illegal”, since her evidence was similar to evidence which she had previously provided, including in her report to the DPP, which was “deleted during the NCAT hearing” (see at [51] above). He submits that Dr Ee’s evidence was improperly relied on by the HCCC in relation to Particulars 1, 2, 5, 6, 7, 9, 10, 11, 12, 13 and 14(d) and (e) of complaint one. The Tribunal is said to have erred in accepting this “illegal” evidence in circumstances where it also accepted that it was not its role to determine the cause of death. Mr Luo also makes the very serious allegation that the evidence was tampered with or falsified. I will have something more to say about those particularly serious allegations. He further asserts that there was no evidence to support Dr Ee’s opinion that his conduct fell “significantly below the standard expected” of practitioners.

As to Error 3, Mr Luo submits that the Tribunal erred in finding that the following particulars were established in circumstances where it was not the Tribunal’s role to determine causation issues, the HCCC’s case was not based on causation and there was no evidence to support its causation findings: Particulars 1(a) and (b), 2, 5, 6(a) and (c), 7(a) and (c), 9(a), (c) and (d), 10(a) and (d), 11(a), (b), (d) and (e), 12(a), (c), (d) and (e), 13(a), (c), (d) and (e) and 14(d) and (e). The relevant particulars are said to be those related to the issues of “safety, risk, dangerous, deterioration, benefit, harm, negligence”. Each is addressed individually by Mr Luo.

As to Error 4, which is repetitive, Mr Luo submits that the Tribunal erred in failing to appreciate the relevance to complaint one of the fact that the cause of death was “natural causes”. That this was the cause of death is said to be supported by “evidences of facts and standards about the natural causes of death”. He repeatedly asserted that different standards apply where there is a natural cause of death, going so far as to claim that in such a case a medical practitioner like himself is immune from any criminal, civil or regulatory liability. His position is recorded in [166] of his amended written submissions dated 4 August 2025:

166. There are 2 set of laws and standards of health professional for cause and manner of death, 1 set for natural causes of death which is that no any one is liable for the natural causes and no any health practitioner would be prosecuted for any criminal charge and or civil and or professional discipline action and or unsatisfactory Professional conduct and or professional misconduct, another 1 set for not natural causes of death.

In its written submissions in response dated 24 June 2025, the HCCC makes the following submissions in relation to these alleged errors:

As to Error 1, the HCCC acknowledges that the Tribunal accepted its submissions below that the amended complaint did not require the Tribunal to make a determination as to cause of death and that the cause of death could be treated as unascertained for the purposes of the stage one inquiry. However, it submits that the Tribunal otherwise placed no reliance on any issue concerning the cause of death in dealing with complaint one. This is said to be entirely unremarkable, since the particulars of complaint one made no allegation, and raised no issue, as to the cause of death.

As to Error 2, the HCCC submits that the decision to admit Dr Ee’s evidence was interlocutory, such that a grant of leave is required to appeal against it. It emphasises that the only reference to Patient A’s death in Dr Ee’s reports appears in her second report and specifically in the context of responding to claims made by Mr Luo. It submits that the letters of instruction to Dr Ee make plain that she was not instructed to provide any expert opinion evidence as to causation.

As to Errors 3 and 4, the HCCC submits that they are misguided, since they are directed to the “causation issues” raised by complaint one when none of the particulars to complaint one raised any issue of causation.

In his amended written submissions in reply dated 4 August 2025, Mr Luo rejects the HCCC’s submissions in relation to Errors 1, 3 and 4. As to Error 2, Mr Luo denies he is seeking to appeal from an interlocutory decision of the Tribunal. Rather, Error 2 is said to challenge “HCCC running the illegal proceedings by using serious criminal offence acts to tamper the evidences and mislead the Tribunal and court and the Tribunal is not the role to conclude the cause of death and causation issues”. The relevant error of law is said to be “[t]ampering evidences and misleading as Pervert the course of Justice and Coroners Act and Coroner Inquest”. It appears that these grave allegations made by Mr Luo relate to the redactions to the HCCC’s evidence during the course of the proceeding after the HCCC had stated unequivocally that causation of death did not form any part of the amended complaint.
During the present proceeding, the Court drew Mr Luo’s attention to the seriousness of these allegations relating to the tampering with and falsifying of evidence and perverting the course of justice. When he was asked to identify who he accused of such serious conduct, he identified a particular person. I will not name that person in these reasons for judgment, not merely because the person has not been given an opportunity to be heard, but primarily because the allegations are entirely baseless and ought never to have been made. The fact that Mr Luo is a self-represented litigant does not excuse him from abusing Court processes by repeatedly making these entirely unfounded allegations, which can properly be described as scandalous and vexatious. The redactions to the HCCC’s evidence were entirely proper and logical once it was clearly confirmed by the HCCC and accepted by the Tribunal that causation formed no part of the case against Mr Luo.

Complaint one – Errors 5 and 7

Errors of law 5 and 7 in the further amended summons relate to an alleged lack of evidence concerning relevant standards. They are as follows:

Error 5 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars of complaint One by having no evidences of particular Standards expected for particular situations of particulars of Complaint One for assessing which was required in order to conclude the particulars were established.
…
Error 7 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars of complaint one and Complaint One by having no assessment of the Standards expected which is required in order to constitute unsatisfactory professional conduct.

In his amended written submissions dated 4 August 2025, Mr Luo makes the following submissions:

As to Error 5, he submits that there was no evidence before the Tribunal concerning the standard reasonably expected of a practitioner in his position in relation to Particulars 1(a) and (b), 2, 5(a), 6(a) and (c), 7(a) and (c), 9(a), (c) and (d), 10(a) and (d), 11(a)-(e), 12(a)-(d), 13(a), (c), (d) and (e) and 14(d). He also submits that the Chinese Medicine Board of Australia is the only authority capable of setting standards for Chinese herbal medical practitioners and that it is “illegal” to treat other opinions as evidencing the professional standards of Chinese herbal medical practitioners.

As to Error 7, Mr Luo submits that there was no evidence before the Tribunal that he had failed to meet the standards expected of Chinese herbal medical practitioners in his position. He submits that Dr Ee was not in a position to give evidence concerning the relevant standards and that the Tribunal, in any case, ignored evidence which suggested that he acted in accordance with the relevant standards. The matters which the Tribunal is said to have ignored improperly include:

The fact that Dr Ee agreed that the traditional Chinese medicine course completed by Mr Luo at the University of Technology Sydney was “within the Standards expected, and the different teachings between schools could not be treated as below the Standards expected”.

Patient A’s medical records from 2016, which are said to show that “the standards expected for treatment records are not such strict, and the treatment recording in general or less some information is allowed and good enough and within the standards expected according to the purpose Medications product information documents, hospital medical records and autopsy examination records”.

The circumstance that someone has died from natural causes does not provide a proper basis for inferring that a medical practitioner could have done “better to improve or to avoid” death, including because “laws stipulate that no anyone is liable for natural causes of death”.

Dr Ee agreed that recommending to Patient A that she see a medical doctor was not “the actual requirement of code of conduct or standard expected for the Chinese Medicine professional”.

In making the above submissions, Mr Luo places significant emphasis on the following observations of Kirby P, in dissent, in Huang v Walton (Court of Appeal (NSW), 20 April 1993, unrep) (citations omitted):

The conduct of a medical practitioner does not, within s27(1)(a) of the [Medical Practitioners Act 1938 (NSW)], demonstrate a lack of adequate knowledge, experience, skill, judgment or care in the practice of medicine, simply because a course of therapy is embarked upon which does not conform to a given professional norm. So long as the practitioner is acting lawfully and conscientiously and is pursuing, in the treatment of his or her patient, a "respectable, though minority, view" in such treatment, no misconduct exists as will attract discipline under the law. … In Childs v Walton, as the Tribunal itself noted, Samuels JA said (at 10):
It is therefore necessary to consider whether in this case it has been shown that, in reaching its order under s32R, the Tribunal took into account irrelevant matters; failed to take into account in an appropriate way matters which were plainly relevant; or reached a conclusion which (although the precise source of error cannot be identified) is so out of harmony with the facts as found as to call for, and warrant, intervention by this Court.

In its written submissions dated 24 June 2025, the HCCC notes that the Tribunal found Particulars 6 to 13 to be proven, that it held that each of these particulars amounted to unsatisfactory professional conduct, and that these were particulars in respect of which Dr Ee expressed the opinion that Mr Luo’s conduct fell significantly below the relevant standard. In expressing that opinion, the HCCC submits that Dr Ee:

Had a complete history of the matter, being aware of Mr Luo’s qualifications and years of experience, contemporaneous accounts of his interactions with Patient A, records kept by Mr Luo of his consultations with Patient A and other records of communications between Person B and Mr Luo regarding Patient A’s condition.

Was a qualified expert in Chinese medicine who was aware of and understood the application of the 2014 version of the CMBA CoC.

Was made available for cross-examination and was cross-examined, both on the voir dire and for several hours in the course of the hearing, such that Mr Luo had every opportunity to test Dr Ee’s evidence concerning the applicable standards.

The HCCC also relies on the following observations of Adamson JA in Bruna v Health Care Complaints Commission [2025] NSWCA 105 at [278]:

… The evidence of the experts was, in the main, opinion evidence. Their opinions were largely accepted by the Tribunal, which took care to reconcile any material differences between them. However, the ultimate question — to what extent the appellant’s conduct, as proved, fell below the requisite standard — was, pre-eminently, one for the Tribunal itself, albeit one in respect of which the experts could give their own opinions, which were taken into account by the Tribunal. The Tribunal’s reasons adequately explain its preference for Dr Kertesz’s and Professor Carter’s assessment. The appellant has failed to establish legal unreasonableness.

In his amended written submissions in reply dated 4 August 2025, Mr Luo somewhat confusingly submits that Errors 5 and 7 are directed towards the HCCC’s failure to provide evidence of the relevant standards in relation to complaint one, and not towards the Tribunal’s treatment of Dr Ee’s evidence.

Complaint one – Error 6

Error 6 is as follows (emphasis added to show changes made in the further amended summons):

Error 6 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars(2)(b) and other particulars of complaint One by ignoring and or not mentioning the evidences that supported and proved Person B was not present during the first consulting, and the evidences of Letter to the Chinese Medicine Council NSW February ~~2000~~ 2020, and the evidences of medical records 2016 and China medical records, and other evidences, while they would support and prove that the particulars(2)(b) and other particulars of complaint One could not be established.

There was no Particular 2(b) to complaint one. Nor does Mr Luo clarify to which “other particulars” this alleged error relates in his amended written submissions dated 4 August 2025. Instead, Mr Luo:

Contends that the Tribunal ignored a letter to the Chinese Medicine Council of NSW dated 3 February 2020, in which Mr Luo’s then solicitor stated that Mr Luo’s email to the Chinese Medicine Council dated 18 June 2018 (on which the Tribunal relied in relation to Particular 2) was correctly translated as disclosing that Mr Luo had merely considered advising Patient A to stop taking Western medicine (not that he had in fact so advised).

Contends that the Tribunal ignored evidence which clearly established that Person B was not present during Patient A’s first consultation with Mr Luo on 26 May 2018. Mr Luo refers, in this respect, to oral evidence given by Person B that she stayed in the waiting room during Patient A’s first consultation.

Claims that the Tribunal ignored Patient A’s 2016 medical records, notwithstanding the fact that these records showed that Patient A denied medical tests and the use of insulin.

Claims that the Tribunal ignored various pieces of evidence concerning the standards applicable to Chinese medicine practitioners in Mr Luo’s position (It is not clear how these submissions relate to Error 6 or how they meaningfully add to Mr Luo’s submissions concerning Errors 5 and 7.)

Claims that Dr Ee’s evidence in the final paragraph of her second report concerning the standards applying to the giving of a “danger warning” is inconsistent with her oral evidence below.

In its written submissions in response, the HCCC notes that there is no Particular 2(b) and so treats Mr Luo’s submissions as directed towards the Tribunal’s finding that Particular 2 was established. In this respect:

The HCCC appears to acknowledge that there is no evidence to support the Tribunal’s finding that Person B was present during the 26 May 2018 consultation (noting that, in oral address, the HCCC said that the evidence is “unclear”), but submits that, in any event, there was other evidence which underpinned the Tribunal’s finding that Particular 2 was proved, such that the factual error is not material.

As to that part of Particular 2 concerning blood sugar medication, the HCCC submits that the Tribunal properly relied on Mr Luo’s email dated 18 June 2018 to the Chinese Medicine Council, as well as on Mr Luo’s evidence in the s 150 proceedings on 27 June 2018.

As to that part of Particular 2 concerning the cessation of “all Western medication”, the HCCC submits that the Tribunal properly relied on Person B’s police interview on 8 June 2018, Mr Luo’s admissions in a recorded conversation between himself and Person B on 11 June 2018 and Mr Luo’s views, expressed to the Tribunal, that Western medicine could cause death.

The HCCC emphasises the fact that, during Person B’s police interview on 8 June 2018, she “said [Mr Luo] told [Patient A], at the consultation of 26 May 2018, at which [Person] B was present: ‘don’t take any Western tablets … Western tablets … has some poison’”. Recognising that it is not entirely clear whether Mr Luo said these words during or after the first consultation, the HCCC submits that it is nevertheless clear that Person B heard Mr Luo say these words. As such, the Tribunal’s finding that Person B was present during the consultation is said to be irrelevant.

The HCCC accepts that Mr Luo relied on the 3 February 2020 letter to the Chinese Medicine Council and that the Tribunal did not refer to this evidence in its reasons. However, it submits that this does not amount to an error of law or, if it does, that the error was immaterial to the Tribunal’s finding that Particular 2 was proved.

In his amended written submissions in reply dated 4 August 2025, Mr Luo denies:

that the Tribunal’s finding as to Person B’s presence at the consultation was immaterial to its conclusion that Particular 2 was proved;

the HCCC’s submissions that the record of Person B’s police interview on 8 June 2018 demonstrated that she heard the relevant words being said; and

the HCCC’s submission that the Tribunal’s failure to refer to the 3 February 2020 letter to the Chinese Medicine Council was immaterial to its conclusion that Particular 2 was proved.

Complaint one – Error 8

Error 8 is as follows:

Error 8 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars of complaint one by rejecting the evidences that were provided by HCCC and or police and or the Crown and or Trial and or NCAT hearing, while they supported and proved that the particulars (9)(10)(11)(12(13) of Complaint One could not be established.

Paragraphs 30 to 44 of the further amended summons also address Particulars 9 to 13 of complaint one. In each case, Mr Luo alleges that there was no evidence before the Tribunal as to the standard expected of Mr Luo in dealing with the issues raised by each particular. Paragraph 34, for instance, contends that there was no evidence before the Tribunal “of what Standards expected for dealing dizziness and hungry to support or prove particular (10)(a),(d)”. Paragraphs 30 to 44 also contend that the Tribunal improperly rejected the following submissions “with evidences” made by Mr Luo below in relation to Particulars 9 to 13 (Mr Luo’s written submissions in relation to Ground 8 simply repeat these contentions without meaningful elaboration):

His submission, in relation to Particular 9 that, after using a particular Chinese herbal medicine formula, Patient A ceased to experience issues with vomiting, cramping and pain.

His submission, in relation to Particular 10, to the effect that the patient’s dizziness was much improved by Chinese herbal medicine.

His submission, in relation to Particular 11, that Patient A and her family were happy with her treatment results on 3 June 2018.

His submission, in relation to Particular 12, to the effect that, when Patient A was experiencing “weakness body condition going flat and not recovered as quick as expected”, Mr Luo issued a “dangerous warning”, which was “equal to the requiring urgent medical attention”.

His submission, in relation to Particular 13, that Patient A’s family “knew and understood such matter of urgency for requiring medical attention”.

In its written submissions in response, the HCCC relies on its submissions in relation to Errors 5 and 7 concerning the manner in which the Tribunal determined the relevant standard. It again emphasises the fact that Dr Ee’s conclusion, drawn from her own expertise, knowledge of Mr Luo’s circumstances and understanding of the medical history, was that Mr Luo’s care fell well below the standard expected. The HCCC rejects Mr Luo’s submissions that Dr Ee or the Tribunal was required to determine that standard of care in fine-toothed detail in relation to the handling of each individual symptom. As to Mr Luo’s contention that the Tribunal rejected his submissions and the underpinning evidence, the HCCC submits that the Tribunal simply preferred Dr Ee’s evidence, which preference discloses no error of fact or law.
In his amended written submissions in reply, Mr Luo rejects the HCCC’s submissions and reiterates his contention that there was no evidence to establish the relevant standard expected of him in relation to each of Particulars 9 to 13. He also reiterates his submission, made in relation to Grounds 5 and 7, that the Chinese Medicine Board of Australia is the only body with the proper authority to determine what the relevant standards are.

Complaint one – Error 9

Error 9 is as follows:

Error 9 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars of complaint one by interpreting the terms and or the laws in error way by treating what Patient A said to her family as what Respondent said to Patient A, and by interpreting the terms of “failed consider” as “failed to adjust it accordingly”, and the terms of “colleague” as “medical colleague”, “advice” as “medical advice”,” when appropriate” as “during treatment”, and or used other evidences in error way, in order to support and or prove the particulars.

Mr Luo’s amended written submissions dated 4 August 2025 are not easily understood. It appears he claims that the Tribunal erred in acting upon Dr Ee’s construction of various terms or phrases in the CMBA CoC, such as viewing the term “colleague” as meaning “medical colleague”; reading “advice” as “medical advice”; and reading “when appropriate” as meaning “during treatment”. The opaqueness of his submission is reflected in what he said at [187] of those submissions:

187. And the terms of have duty of care of safety were interpreted as have duty of care of safety including all causing facts from other persons and or natural causes and or others causing facts that could not be controlled by Plaintiff.

The HCCC submits that this error appears to allege that the Tribunal found complaint one proven based on the evidence of others, rather than Mr Luo’s own evidence, and that there is no corresponding ground of appeal.
In his amended written submissions in reply dated 4 August 2025, Mr Luo rejects the HCCC’s submissions and identifies Error 9 in his further amended summons as the applicable ground of appeal. Mr Luo submits that the HCCC provided no evidence to justify the Tribunal’s interpretation of these terms or phrases and proffers his own definitions.
In his reply submissions, Mr Luo also said that his complaint is that the Tribunal made “false decisions by treating what Patient A said to her family as what Plaintiff said to Patient A, and by interpreting the terms of ‘failed consider’ as ‘failed to adjust it accordingly’, and the terms of ‘colleague’ as ‘medical colleague’, ‘advice’ as ‘medical advice’, ‘when appropriate’ as ‘during treatment’, and or used other evidences in error way, in order to make false decisions”.
It is also well to set out [78] of the reply, which relates to Error 9 and repeats the serious allegations referred to at [68] and [69] above:

78. It is not about the Tribunal was entitled to prefer what accounts, but it is about the Tribunal is rejecting the evidences that are provided by HCCC and from the witness of HCCC that support and prove the particulars could not be established, and the Tribunal is making false decisions, and it is about HCCC is running the illegal proceedings by making false story and misleading the Tribunal and court in order to make such false decisions as Pervert the course of Justice.

Complaint one – Error 10

Error 10 is as follows:

Error 10 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars of complaint one by shifting all liability from other persons and or natural causes to plaintiff.

This alleged error is essentially a causation argument and relates to the whole of the Tribunal’s findings on complaint one.
In his amended written submissions, Mr Luo submits that the “medical doctors”, Patient A and Patient A’s family had “the extent of duty of care for taking medications” and that he did not “have liability to minimise the risk of taking medication”. He submits that the Tribunal and the HCCC were “wrong and illegal” to shift liability from others onto him and that, in doing so, the Tribunal violated “the common law of extent of duty of care law”. He also alleges that there was strong evidence that Patient A and her family independently decided to cease taking Western medications.
The HCCC submits that Error 10 fails to identify any error of law and that, in any event, the Tribunal did address and reject Mr Luo’s claims on this topic, preferring to accept Dr Ee’s evidence.
In his written submissions in reply, Mr Luo rejects the HCCC’s submissions, including its submission that the Tribunal preferred the evidence of Dr Ee concerning the inadequacies of his care and its submission that Error 10 is misconceived. Mr Luo submits that Error 10 is not concerned with his standard of care of Patient A, but with the Tribunal’s “breach of laws” and the HCCC “running the illegal proceedings”. He submits that the Tribunal, “by shifting all liabilities”, incorrectly decided that complaint one was established.

Complaint three – Errors 11 and 12

As to the Tribunal’s handling of complaint three, the following two errors of law are alleged by Mr Luo:

Error 11 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the Complaint Three by having no evidences to support and or prove that HCCC was not notified about the Criminal Charge of manslaughter by Respondent within 7 days from the date of Criminal Charge.
Error 12 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the Complaint Three by wrongly interpreting laws in term of notify. The meaning of notify in term is that let someone know about something, and HCCC had given a notice of letter to Respondent saying that HCCC was knowing and or was notified about the Criminal Charge of manslaughter on 22 August 2018, also Respondent had confirmed that HCCC was notified about the Criminal Charge of manslaughter by any one in any way on behalf of Respondent by received this Notice of letter from HCCC

In his amended written submissions, Mr Luo submits, in relation to Error 11, that the Tribunal had no evidence to support its finding that he failed to comply with s 130 of the National Law. Emphasising that the HCCC was aware of the manslaughter charge within 7 days of it being brought, Mr Luo submits that this had the same effect as him notifying AHPRA, since “HCCC was the agent of AHPRA and the Chinese Medicine Council NSW and Chinese Medicine Board for this case”.
In respect of Error 12, Mr Luo submits that the Tribunal misinterpreted the meaning of “notify” in s 130, which, in his view, simply required the HCCC to be aware of the manslaughter charge.
In its written submissions in response dated 24 June 2025, the HCCC denies that there was any error in the Tribunal’s handling of complaint three. In respect of Error 11, it emphasises the correspondence between itself and AHPRA which was before the Tribunal and on which it relied in finding that complaint three was established. The correspondence comprised a letter dated 18 March 2022 from the HCCC to AHPRA asking AHPRA to advise whether or not Mr Luo had notified AHPRA of the manslaughter charges and AHPRA’s reply dated 1 April 2022, in which AHPRA stated that, having reviewed the documents in its possession, it did not appear that Mr Luo had provided AHPRA with notice of the charges.
As to Error 12, the HCCC submits that the language of s 130 “makes plain that a health practitioner is to notify the National Board – that is, AHPRA – not the defendant”. It is important to note that the HCCC’s position is that AHPRA is the entity which Mr Luo was required to notify in accordance with s 130.
In his amended submissions in reply, Mr Luo describes the HCCC’s submissions on complaint three as “incorrect” based on the following reasons. First, he submits that the “National Board is the Board, and is not AHPRA, and for the Chinese herbal Medicine professional the National Board is the Chinese Medicine Board”. Secondly, he submits that AHPRA “is an agency, and is not a Board, and is not the National Board”. Thirdly, he claims that the HCCC “was the agency for dealing with this case on behalf of AHPRA and Chinese Medicine Council and Chinese Medicine Board”, with the consequence that notifying the HCCC “had the same effects and results as notifying AHPRA and Chinese Medicine Council and Chinese Medicine Board”.
Mr Luo’s submissions on this matter were somewhat convoluted, but I consider that he made clear that he disagreed with the HCCC’s position that AHPRA is the National Board for the purposes of s 130. This has some significance, for reasons which I will give below when addressing complaint three.
The Court considered that it did not receive adequate assistance, particularly from the HCCC, in support of its stated position that AHPRA was the correct entity for the purposes of giving notification under s 130 and not the Chinese Medicine Board of Australia. The parties were directed to provide post-hearing supplementary submissions on that issue. Those submissions are summarised at [167] and [185]–[188] below.

Complaint four – Error 13

As to the Tribunal’s handling of complaint four, a single error is alleged in Mr Luo’s further amended summons:

Error 13 in law. Further, it was a breach of procedural fairness and or judgement fairness, as the Tribunal was to make a finding of unsatisfactory professional conduct and or professional misconduct by determining the complaints by acted without jurisdiction, or otherwise erred in law in many different ways to constitute unsatisfactory professional conduct and or professional misconduct.

Mr Luo’s submissions are difficult to follow. He appears to submit that the Tribunal denied him procedural fairness by acting “illegally without jurisdiction” and erring “in law in many different ways”, including by relying “on the set of laws and standards of health professional for not natural causes of death”, assuming that “the manner of death was negligence” and ignoring “such issues of illegal evidences of opinions that were based on causation”. He also appears to allege that the Tribunal should have dismissed the HCCC’s amended complaint as vexatious pursuant to s 55(1)(b) of the CAT Act, including because they were in violation of “rules and law of Common Law and the Coroners Court and Coroners Act 2009 and general law and standards of health systems”.

Using Chinese Herbal Medicine and some normal vegetarian foods
and advising not taking medication to lower the blood sugar level as considering,
the Chinese herbal medicine that clean Wind heat will also lower the blood sugar level and may induce weakness
and advising that any time any thing appearing and happening, need to tell me(the Chinese medicine practitioner) immediately

The solicitor’s letter dated 3 February 2020 to the Chinese Medicine Council focused on the words “as considering” and urged those words to be “translated” as follows:

1. That the prescribed Traditional Chinese Medicine has the effect of detoxifying blood, lowering heat and overall blood sugar levels;
2. In the prescription of the Traditional Chinese Medicine, Dr Luo made a consideration that in order to prevent potential hypoglycaemia, it may have been necessary to temporarily halt the consumption of western medication; and
3. That this consideration was expressly an internal deliberation that was not communicated to the Deceased or family at the time.

There are several difficulties with this aspect of Mr Luo’s case. It is difficult to see the relevance of a letter which urges the “translation” of an email which was itself written in English. Furthermore, there was ample other evidence before the Tribunal to support its finding that Mr Luo advised Patient A to stop taking Western medications. Thus, in the s 150 proceeding, Mr Luo made the following admission:

ASSOCIATE PROF ZASLAWSKI: Yeah. So just to confirm that, you advised her not to take the medication. Is that what you mean by that phrase?
MR LUO: Yeah, that’s right.

In the present proceeding, Mr Luo sought to avoid this admission on the basis that he was simply responding to “a very general question”. That submission is rejected. Viewed in context, the question was very specific and related back expressly to that part of Mr Luo’s email dated 18 June 2018 where he used the phrase “as considering”.
The weight to be given to Mr Luo’s email was a matter for the Tribunal, as the tribunal of fact. Again, Mr Luo has not sought leave to appeal on a question of fact.

Complaint one – Error 8

Two essential complaints are made by Mr Luo in relation to Error 8. The first is that there was no evidence before the Tribunal as to the professional standard expected of him with reference to each of the specific issues raised by Particulars 9 to 13 of complaint one. The second is that the Tribunal improperly rejected submissions made by Mr Luo in relation to Particulars 9 to 13.
Insofar as the first complaint raises a no evidence ground, I am, as noted above, willing to accept that it raises a question of law. I am also willing to accept that the second complaint raises a question of law to the extent that it can be characterised as a complaint that the Tribunal failed to respond to a substantial and clearly articulated argument on an issue of significance, such that there was a constructive failure to exercise jurisdiction and/or a denial of procedural fairness (see generally Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088).
However, the appeal must fail on these grounds. As to the first complaint, I reject the proposition that the Tribunal required evidence of the standard expected of practitioners in his position in relation to each individual professional issue raised across Particulars 9 to 13. In respect of each of these particulars, the Tribunal was entitled to rely, and did rely, on Dr Ee’s expert opinion that Mr Luo’s conduct fell significantly below professional standards. In determining what was the appropriate standard, the Tribunal was also entitled to rely upon the other matters described at [136] above.
As to the second complaint, I do not accept that the submissions referred to by Mr Luo in his further amended summons in relation to Particulars 9 to 13 raised a substantial and clearly articulated argument on an issue of significance. The following observations of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24]-[25] are apposite, while noting the need to pay close attention to the particular statutory context (footnotes omitted):

24 Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25 It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

Mr Luo’s oral and written submissions to the Tribunal were generally difficult to follow and obscure, as well as being highly repetitive and at times internally inconsistent. Moreover, some were of uncertain relevance to the questions before the Tribunal. For example, the Tribunal summarised at [175] various oral submissions made by Mr Luo in the hearing below, including his claim that Western medicine product information explains that Western medicine can lead to cardiac arrest, kidney failure and death. It seems that his point was that the Tribunal also needed to take into account risks and dangers associated with Western medicine. He now complains the Tribunal overlooked that submission. That is wrong. This particular submission was included in the bundle of oral submissions described by the Tribunal at [175] and which were collectively described by the Tribunal as being “irrelevant and unhelpful” (see at [176]).

Complaint one – Error 9

Error 9 raises no question of law. The Tribunal made clear on multiple occasions that it preferred the evidence of others over Mr Luo’s because it was consistent with contemporaneous records.
As to his submissions regarding the meaning of certain terms or phrases used by the Tribunal in its reasons for decision (see at [84] above), Mr Luo’s preferred meanings do not engage with the context in which the terms or phrases were used and applied by the Tribunal, which was supported by either a plain reading of the words or the surrounding context in which they were used. In any event, no question of law is raised by the Tribunal’s use of ordinary words.

Complaint one – Error 10

Error 10 raises no question of law. Mr Luo’s submissions are rejected on the basis that the central question the Tribunal had to determine was the standard of care and treatment Mr Luo owed to Patient A and whether Mr Luo’s conduct met the requisite standard.
Further, the Tribunal was aware of Mr Luo’s submissions as to the responsibility of others in Patient A’s death (at [173(5) and (6)]) and rejected them at [196].
To the extent that Mr Luo alleges that the incorrect laws were applied, being a common law duty of care rather than the applicable provisions of the National Law or “standards”, this was plainly considered by the Tribunal but it preferred to rely inter alia on the reports and oral evidence of Dr Ee who concluded in respect of each relevant particular that Mr Luo’s conduct fell significantly below the standard expected.

Complaint three – Errors 11 and 12

To the extent that Error 11 raises a “no evidence” ground, I am willing to accept that a question of law is raised.
Error 12 also raises a question of law insofar as concerns the proper meaning of s 130 of the National Law. As such, leave is not required for Mr Luo to appeal in relation to either of these issues.
I consider that, at the heart of Errors 11 and 12, is the need to identify the entity which is the “National Board” for the purposes of notification as required by s 130 of the National Law (noting that the terms of complaint three did not themselves identify the entity which the HCCC considered to be the “National Board”). As noted above in the summary of the parties’ submissions, the HCCC’s position is that AHPRA is the “National Board”, whereas Mr Luo clarified in his written submissions in reply that his position is that the Chinese Medicine Board of Australia is the relevant entity and he adds that, because the HCCC acted as agent on behalf of the Chinese Medicine Board of Australia (and, indeed, AHPRA and the Chinese Medicine Council), it was sufficient that the HCCC was aware of the fact that he had been charged with manslaughter.
The answer to what appears to be a relatively straightforward question is far from simple. The issue was raised by the Court during the HCCC’s oral address. Counsel was invited to explain in due course how it is that the Chinese Medicine Board of Australia is the National Board for the purposes of s 39, yet for the purposes of s 130 the HCCC claimed that AHPRA was the relevant body. Counsel responded by saying that she “thought your Honour might want me to do that, I’ll do my best”.
Later in the hearing, counsel for the HCCC returned to the issue with reference to the question whether the HCCC was an agent of any of the National Boards or for AHPRA for the purposes of s 130. Counsel made the following submission:

And can I indicate that the functions of AHPRA which are set out at section 25 of the Act included section 25(i) to establish an efficient procedure for receiving and dealing with notifications against persons who are or were registered health practitioners and persons who are students including by establishing a national process for receiving notifications about registered health practitioners in all professions, and that is why it is their evidence which supports complaint 3.

As previously mentioned, in circumstances where the Court considered that it had not received adequate assistance on the issue, the parties were subsequently invited to provide brief post-hearing supplementary submissions as to why AHPRA and not the Chinese Medicine Board of Australia is the relevant entity for the purposes of notification as required by s 130 of the National Law.
The HCCC’s post-hearing supplementary submissions dated 2 September 2025 may be summarised as follows:

The HCCC’s primary submission was that the question whether AHPRA and not the Chinese Medicine Board of Australia is the relevant entity is not raised by the further amended summons. It added that, accordingly, its supplementary submissions were made simply as a matter of “courtesy” and to assist that Court, “but in the expectation that any discussion of this matter in the judgment will be by way of obiter dicta, given that there is no ground of appeal suggesting that the Tribunal erred on a question of law by accepting evidence from AHPRA for the purposes of determining that the plaintiff had not complied with s.130 of the National Law”.

If the Court determined not to address the matter that way, the HCCC sought leave to adduce fresh evidence in response to the question.

After setting out various provisions of the National Law, including s 25, and referring to the correspondence between AHPRA and the HCCC regarding notification, the HCCC contended that it was “noteworthy” that both bodies proceeded on the basis that AHPRA is the relevant entity for inquiries regarding compliance with s 130. Reference was made to several Tribunal decisions which had also proceeded on the basis that AHPRA is the appropriate body to provide evidence regarding compliance with s 130.

The HCCC contended that the functions of AHPRA set out in s 25(a), (b), (e), (f) and (i) supported the HCCC’s position that AHPRA was the responsible body for the management of s 130 notification and pointed also to the fact that AHPRA’s correspondence in the matter stated “Ahpra and National Boards”.

While acknowledging that sub-paragraph 25(i) referred to AHPRA’s function of establishing “an efficient procedure for receiving and dealing with notifications against persons who are or were registered health practitioners” (emphasis added), the HCCC contended that this is sufficiently wide to include a health practitioner who self-reports a matter against themselves.

The HCCC also submitted that where one of the objects of the National Law was to include a national registration scheme administered by AHPRA, it is consistent with that scheme that AHPRA has the role of managing s 130 notifications.

Finally, the HCCC urged the Court to take judicial notice of the fact that the postal and street address of the Chinese Medicine Board of Australia and AHPRA are the same.

I do not accept these submissions. First, I reject the claim that the question is not raised by the further amended summons. Paragraph 61 of the further amended summons (which is in identical terms to [61] of the amended summons dated 20 May 2025, and adding that the paragraph is not clearly expressed) stated:

The Tribunal NCAT accepted that notified HCCC about the Criminal Charge of manslaughter by any one on behalf of Respondent in any way had same effect as notified APHRA and notified Chinese Medicine Council NSW and notified Chinese Medicine Board, as HCCC was the agent of APHRA and Chinese Medicine Council NSW and Chinese Medicine Board for this case.

The terms of Errors 11 and 12 (which were then set out immediately below [61] in both the amended summons and in the further amended summons) are reproduced at [95] above.
It is notable that in its written submissions dated 24 June 2025 (which necessarily responded at that time to the amended summons), the HCCC contended that s 130 in its terms “makes plain that a health practitioner is to notify the National Board – that is, AHPRA – not the defendant” (see at [99] above). Thus, it seems clear that the HCCC appreciated at that time that the amended summons did raise the question of which was the relevant entity to which notification had to be given by Mr Luo in accordance with s 130. Moreover, when the issue was raised by the Court in the course of the hearing, no point was taken that the issue did not properly arise and counsel for the HCCC made brief oral submissions in relation to the issue.
Secondly, and importantly, the relevant issue is one of statutory construction, which is to be determined by the Court. The fact that officers of both the HCCC and AHPRA have proceeded on the basis that AHPRA is the relevant body does not assist the task of statutory construction. Nor is that task assisted by the fact that there are Tribunal decisions which proceed on the basis that AHPRA is the appropriate body and not the relevant National Board. Nor is the matter advanced by the fact that AHPRA used a particular letterhead or by the fact that the Chinese Medicine Board of Australia and AHPRA share the same postal and street address.
Thirdly, although a National Board has the power under s 37 of the National Law to delegate any of its functions to inter alia the National Agency (i.e. AHPRA), it is notable that the HCCC has not contended before me that there has been a relevant delegation of function from the Chinese Medicine Board of Australia to AHPRA concerning notification by health practitioners under s 130. Passing reference was made before the Tribunal by the HCCC’s then counsel to a 55-page instrument of delegation. The evidence before me did not include any instrument of delegation and neither party made any submission regarding that instrument.
The task of construing and applying s 130 must recognise the practical need for a health practitioner to be able to know with confidence and certainty as to whom notification should be given where that provision applies. That is not only because notification has to be given within a relatively tight time period of seven days, but also because sub-section 130(2) provides that a failure to comply with the notification requirement may have regulatory consequences, as indeed this case well illustrates.
For the following reasons, I consider that the HCCC is incorrect in its construction of s 130 and that the Chinese Medicine Board of Australia is the “National Board” for the purposes of s 130.
The resolution of this issue draws attention to the complexity of the legislative regime applying to the registration and regulation of medical practitioners in Australia, which has been noted in cases such as Callan v Medical Board of Australia [2024] NSWSC 336 at [11]ff and Reimers v Medical Board of Australia [2024] NSWCA 164 at [32]. As Leeming JA stated in Reimers at [32], the National Law “is in truth more variegated” than simply being the implementation of a single national law. That is because the national scheme has not been implemented uniformly and there are multiple different agencies with powers and functions in relation to the scheme. For example, for the purposes of the present proceeding, the potentially relevant agencies include AHPRA (as the “National Agency”), the Chinese Medicine Board of Australia (as the “National Board”), the Chinese Medicine Council and the HCCC.
Under the National Law, National Boards are established for each registered health profession. The National Law also established a framework for National Boards to approve registration standards, codes and guidelines and other matters. Section 31 of the National Law, as in force for August 2018, listed fourteen National Boards, including the Chinese Medicine Board of Australia.
By the Health Practitioner National Law Regulation 2018 (NSW), the Chinese Medicine Board of Australia was “continued” as the relevant National Board for the purposes of Chinese medicine (see the table set out in Pt 2, cl 4). Thus, it is the National Board “established for the practitioner’s … health profession” as referred to in s 130 of the National Law.
The functions of National Boards are set out in s 35 of the National Law. Relevantly, they include the following:

35   Functions of National Boards
(1) The functions of a National Board established for a health profession are as follows—
…
(g)  to oversee the receipt, assessment and investigation of notifications about persons who—
(i)  are or were registered as health practitioners in the health profession under this Law or a corresponding prior Act; or
(ii)  are students in the health profession;
…

For completeness, it might also be noted that the effect of s 35(2) is that, for the purposes of subsection (1)(g), a National Board’s functions do not include receiving notifications and taking action referred to in those paragraphs in relation to behaviour by (relevantly) a registered health practitioner that occurred, or is reasonably believed to have occurred, in a co-regulatory jurisdiction. That qualification has no application to the circumstances here. Accordingly, on the face of matters, the Chinese Medicine Board of Australia is the National Board with responsibility for registered health practitioners such as Mr Luo and it has the function of overseeing the receipt, assessment and investigation of any notification by persons such as Mr Luo.

Section 35 cannot be read in isolation from the balance of the National Law, including provisions relating to AHPRA and its functions. In s 5 of the National Law, “National Agency” is defined as meaning AHPRA as established by s 23 of the National Law. AHPRA’s statutory functions are set out in s 25 of the National Law. None of those functions appear to include the receipt of notifications under s 130. Section 25 of the National Law contemplates that AHPRA, as the National Agency, has some function relating to notifications but those functions appear to be limited to establishing an efficient procedure for receiving and dealing with notifications against, relevantly, persons who are or were registered health practitioners. Section 25(i) provides:

25 Functions of National Agency
The functions of the National Agency are as follows—
…
(i) to establish an efficient procedure for receiving and dealing with notifications against persons who are or were registered health practitioners and persons who are students, including by establishing a national process for receiving notifications about registered health practitioners in all professions;
…

The Tribunal appears to have glossed over this issue, perhaps because its focus was drawn to the distinction between the respective roles and functions of AHPRA and the HCCC, and the cross-examination of Mr Luo below was conducted on the basis of an assertion by the HCCC that AHPRA was the National Board. That is the context in which the Tribunal made the following findings at [306]:

There is no evidence before the Tribunal that the practitioner ever approved the email or that it was ever sent to the Commission. Indeed, the evidence of the Commission, being the letter of APHRA [sic] to the Commission dated 1 April 2022, establishes that neither the draft letter prepared by the practitioner’s solicitors nor any other email or letter was sent to the Board notifying it that the practitioner had been charged with Manslaughter within 7 days of so being charge [sic] at all.

The Tribunal does not state in terms who is the National Board for this purpose.
For all these reasons, the question is whether there is evidence to support a finding that Mr Luo did not notify the Chinese Medicine Board of Australia within seven days of 16 August 2018 that he had been charged with manslaughter, bearing in mind that the HCCC has the onus but consideration also needs to be given to the case as presented by Mr Luo both below and before me.
As to Error 12, which overlaps with Error 11, Mr Luo appears to submit that it was sufficient for the purposes of the notification requirement imposed by s 130 of the National Law that the HCCC was aware of the manslaughter charge against him. I do not accept this submission, which finds no grounding in the statutory language of s 130. Section 130 imposes a positive requirement on the person charged with a relevant offence to “give the National Board … written notice”. The Tribunal clearly proceeded on the basis that this was the proper construction of s 130, finding that the requirement had not been complied with because of Mr Luo’s failure to notify AHPRA, it apparently being viewed by the Tribunal as the National Board for the purposes of that provision.
As noted above, in its post-hearing supplementary written submissions, the HCCC sought leave to adduce further evidence if the Court considered that the issue of the proper construction of s 130 is properly raised.
On 10 September 2025, the Court made the following orders arising from the HCCC’s application for leave to adduce further evidence:

1. Within seven days hereof, the HCCC is to file and serve a notice of motion (seeking leave to reopen) and supporting evidence, including the further evidence which it wishes to adduce addressing the mechanisms of s 130 reporting, together with a brief outline of submissions not exceeding three pages in length.
2. Within seven days thereof, Mr Luo is to file and serve any evidence in response, together with a brief outline of submissions not exceeding three pages in length.
3. The issue of leave will be determined on the papers.

On 17 September 2025, the HCCC provided a short note to the Court in which it said that, upon reflection, it had decided against making an application to seek leave to adduce further evidence. It otherwise affirmed its reliance on the other parts of its post-hearing submission dated 2 September 2025 and it invited the Court to also take into account certain material in the Court Book which it submitted demonstrated that:

Mr Luo did not contend below that he had notified the National Board or AHPRA, nor did he contest the evidence from AHPRA concerning his non-compliance with s 130.

Instead, his case was that he had notified the HCCC but provided no supporting evidence of that claim.

The Tribunal was alive to the issue of AHPRA, as opposed to the National Board, providing evidence regarding non-compliance with s 130.

On 24 September 2025, Mr Luo provided his response to the HCCC’s short note dated 17 September 2025. In brief, Mr Luo made the following submissions (which substantially reflect his earlier “Submissions in Reply Additional” dated 9 September 2025):

The Court should not accept that complaint three is established because, contrary to the HCCC’s claim, notification of the charges to the HCCC was sufficient compliance with s 130 because “HCCC was dealing this case on behalf of the National Board the Chinese Medicine Board and Chinese Medicine Council and AHPRA”. In other words, Mr Luo reiterated his claim that the HCCC was acting as agent for all those entities.

Mr Luo pointed to the proposed email drafted by his solicitor and dated 22 August 2018, which the solicitor proposed to send to the insurer once it had been approved by Mr Luo. The solicitor also provided Mr Luo with a copy of the HCCC’s letter dated 22 August 2018 to his solicitor, which indicated that the HCCC was aware of the criminal proceedings against Mr Luo.

It is important to note that although he had ample opportunity to do so, Mr Luo provided no evidence either below or in the proceeding before me which established that he had notified the Chinese Medicine Board of Australia directly for the purposes of s 130. Rather, his consistent position has been that there was no breach of s 130 because the HCCC was aware of the criminal charge and it acted as agent for any and all of the Chinese Medicine Board of Australia, Chinese Medical Council and AHPRA.
For the reasons given above, I consider that the Tribunal, the HCCC and Mr Luo have misconstrued s 130. They have failed to appreciate that, in the particular circumstances of this case, the National Board for the purposes of that provision is the Chinese Medicine Board of Australia alone.
As emphasised above, in response to complaint three, Mr Luo has not adduced any evidence to establish that he notified the Chinese Medicine Board of Australia as required by s 130. Rather, his case has consistently been that, relevantly, the HCCC was aware of the criminal charge and it acted as agent for inter alia the Chinese Medicine Board of Australia. Mr Luo’s position is unsustainable, however, because there is simply no evidence before the Court which makes good any claim of agency (or, alternatively, delegation).
In all these circumstances, although I consider that both the Tribunal and the HCCC have misconstrued s 130, the error is not material. I see no utility in remitting complaint three to the Tribunal in circumstances where there is no evidence that Mr Luo notified the Chinese Medicine Board of Australia of the criminal charge notwithstanding that he has had ample opportunity to adduce that evidence in the present proceeding. Nor has he suggested in any of his multiple submissions, both before and after the hearing, that such evidence is available. His case has consistently been confined to the asserted agent/delegate relationship described above between the HCCC and, inter alia, the Chinese Medicine Board of Australia, for which there is also no supporting evidence.

Complaint four – Error 13

Mr Luo’s complaint in relation to Error 13 is that he was denied procedural fairness. I accept that a claim of procedural unfairness may raise a question of law. However, Mr Luo’s further amended summons and submissions provide no support for his claim that he was denied procedural fairness by the Tribunal. His claim of procedural unfairness simply relies upon the other alleged errors of which he complains, all of which have been rejected. His complaint of procedural fairness as raised by Error 13 necessarily fails.

Conclusion

For all these reasons, the further amended summons will be dismissed (noting that the HCCC did not oppose the plaintiff being granted an extension of time of one day to rely on the original summons), with costs.

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Decision last updated: 29 September 2025

Medium Neutral Citation:	Luo v Health Care Complaints Commission [2025] NSWSC 1121
Hearing dates:	19–20 August 2025, further written submissions provided on 2, 9, 17 and 24 September 2025
Date of orders:	29 September 2025
Decision date:	29 September 2025
Jurisdiction:	Common Law
Before:	Griffiths AJ
Decision:	(1) Time is extended for the plaintiff to rely on the further amended summons dated 4 August 2025. (2) Further amended summons dismissed. (3) Plaintiff to pay defendant’s costs.
Catchwords:	OCCUPATIONS — health practitioners — misconduct and discipline — where disciplinary proceedings commenced by Health Care Complaints Commission — where NSW Civil and Administrative Tribunal upheld complaints of unsatisfactory professional conduct and professional misconduct — whether Tribunal erred on a question of law —meaning of “National Board” in s 130 of Health Practitioner Regulation National Law (NSW)
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 55, 63, cl 29 of Sch 5 Coroners Act 2009 (NSW) Coroners Regulation 2021 (NSW) Crimes Act 1900 (NSW), s 18 Health Care Complaints Act 1993 (NSW), s 30 Health Practitioner Legislation Amendment Act 2024 (NSW), Sch 1 Health Practitioner National Law Regulation 2018 (NSW), Pt 2 Health Practitioner Regulation National Law 2009 (NSW), ss 5, 23, 25, 31, 35, 130, 139, 139B, 139E Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW) Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW)
Cases Cited:	Bruna v Health Care Complaints Commission [2025] NSWCA 105 Callan v Medical Board of Australia [2024] NSWSC 336 Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 Health Care Complaints Commission v Le [2021] NSWCATOD 104 Health Care Complaints Commission v Luo [2025] NSWCATOD 5 Health Care Complaints Commission v Luo (No 2) [2025] NSWCATOD 7 Health Care Complaints Commission v Luo (No 3) [2025] NSWCATOD 45 Health Care Complaints Commission v Richards [2024] NSWCATOD 37 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Huang v Walton (Court of Appeal (NSW), 20 April 1993, unrep) Luo v R [2024] NSWCCA 58 Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24; [1986] HCA 40 Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 Reimers v Medical Board of Australia [2024] NSWCA 164 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40
Texts Cited:	Chinese Medicine Board of Australia, Code of Conduct, March 2014
Category:	Principal judgment
Parties:	Yun Sen Luo (Plaintiff) Health Care Complaints Commission (Defendant)
Representation:	Counsel: Self-represented (Plaintiff) P Lowson (Defendant) Solicitors: Health Care Complaints Commission (Defendant)
File Number(s):	2025/00080326
Publication restriction:	Nil
Decision under appeal	Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2025] NSWCATOD 5 [2025] NSWCATOD 7 [2025] NSWCATOD 45 Date of Decision: 30 January 2025 30 January 2025 23 April 2025 Before: R C Titterton OAM, Senior Member Dr P Coop, Senior Member Dr S Cochrane, Senior Member Dr R Leontini, General Member File Number(s): 2023/00361650