Dr Kevan Joseph Fleming [2002] NSWMT 5

Dr Kevan Joseph Fleming [2002] NSWMT 5

The Committee erred in law by taking upon itself an investigative role and determining, on its own motion, to proceed to hear further evidence, particularly from Dr Weissberger, when its power was confined to inquiring into a complaint referred to it. The matter was to be remitted to the Committee for further consideration in accordance with the reasons.

Jurisdiction
Australia
Judgment Date
16 July 2002
Procedural Posture
Appeal Pursuant to Sec 88 of the Medical Practice Act 1992 Alleging Error of Law by a Professional Standards Committee / Reasons for Determination; Committee Inquiry Adjourned Pending Disposal of the Appeal
Outcome
The Appellant was successful; the Committee was found to have erred in law, the matter was remitted to the Committee for further consideration, the amendment to the Notice of Appeal was allowed, and the Board was ordered to pay the Appellant's costs.
Legal Topics
['professional Standards Committee Jurisdiction' 'withdrawal of Complaint' 'additional Complaints' 'procedural Fairness' 'medical Practitioner Impairment']
['administrative Law' 'health Law' 'medical Disciplinary Proceedings'] ['professional Standards Committee Jurisdiction' 'withdrawal of Complaint' 'additional Complaints' 'procedural Fairness' 'medical Practitioner Impairment']

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Procedural Posture

Appeal Pursuant to Sec 88 of the Medical Practice Act 1992 Alleging Error of Law by a Professional Standards Committee / Reasons for Determination; Committee Inquiry Adjourned Pending Disposal of the Appeal

Legal Issues

  1. 1 ['Whether the Professional Standards Committee erred in law by determining on its own motion to hear further evidence after the Health Care Complaints Commission wished to withdraw the complaint.' 'Whether the Committee could formulate or inquire into an additional or substituted impairment complaint of its own motion.' 'Whether the Appellant was denied procedural fairness.' 'Whether the Committee inquiry should be terminated after withdrawal of the complaint.']

Ratio Decidendi

The Committee erred in law by taking upon itself an investigative role and determining, on its own motion, to proceed to hear further evidence, particularly from Dr Weissberger, when its power was confined to inquiring into a complaint referred to it. The matter was to be remitted to the Committee for further consideration in accordance with the reasons.

Court Disposition

The Appellant was successful; the Committee was found to have erred in law, the matter was remitted to the Committee for further consideration, the amendment to the Notice of Appeal was allowed, and the Board was ordered to pay the Appellant's costs.

Orders

  • ['The amendment to the Notice of Appeal was allowed.' 'The matter was remitted to the Committee for further consideration in accordance with the reasons.' "The NSW Medical Board was ordered to pay the Appellant's costs." 'Exhibits may be returned.']