Sabag v Health Care Complaints Commission

The appellant, Dr Sabag, appealed to the Court of Appeal of New South Wales against a decision of the Medical Tribunal which had found him guilty of unsatisfactory professional conduct and professional misconduct, and ordered his removal from the Register of Medical Practitioners. The appeal concerned whether the Tribunal had afforded Dr Sabag procedural fairness in its determination.

The central legal issue before the Court of Appeal was whether the Medical Tribunal had breached its duty to afford Dr Sabag procedural fairness by failing to provide him with adequate notice of the specific allegations of misconduct against him and by failing to give him a sufficient opportunity to respond to those allegations. This included whether the Tribunal had erred in proceeding to make findings of misconduct based on matters that had not been clearly articulated to the appellant prior to the hearing.

The Court of Appeal found that the Tribunal had indeed failed to provide Dr Sabag with procedural fairness. It reasoned that a fundamental aspect of procedural fairness requires a party to be clearly informed of the case they are required to meet, including the specific allegations of misconduct. The Court held that the Tribunal's notice of the allegations was vague and did not adequately particularise the conduct that was alleged to constitute unsatisfactory professional conduct or professional misconduct. Consequently, Dr Sabag was not afforded a proper opportunity to prepare and present his defence to the specific charges that ultimately formed the basis of the Tribunal's adverse findings.

The Court of Appeal accordingly set aside the decision of the Medical Tribunal and remitted the matter to a differently constituted Medical Tribunal for a rehearing and redetermination. The respondent was ordered to pay the appellant's costs of the appeal.