Sudath v Health Care Complaints Commission

(2012) 84 NSWLR 474; [2012] NSWCA 171

NSW Court of Appeal

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Interrogate

Catchwords

1. Medical Practitioners
2. › Disciplinary proceedings
3. › Medical Tribunal
4. › Inquiry into complaints
5. › Complaint that practitioner not of good character
6. › Whether practitioner entitled to lead evidence inconsistent with prior criminal convictions
7. › Whether exclusion of such evidence constituted abuse of process
8. › Medical Practice Act 1992 (NSW), ss 39(a), 39(e), 60, 89
1. Administrative Law
2. › Tribunals
3. › Abuse of process
4. › Collateral attack on prior criminal convictions
5. › Distinction between complaint based on fact of conviction and complaint based on underlying conduct
6. › Whether leading evidence inconsistent with conviction constitutes collateral attack
1. Administrative Law
2. › Procedural fairness
3. › Disciplinary proceedings
4. › Right of practitioner to lead evidence in response to complaint
5. › Whether exclusion of relevant evidence denied procedural fairness
1. Evidence
2. › Disciplinary proceedings
3. › Admissibility
4. › Evidence inconsistent with prior criminal conviction
5. › Tribunal not bound by rules of evidence
6. › Whether conviction conclusive of underlying facts in non-conviction-based complaint

Quick Take

In disciplinary proceedings where the complaint requires inquiry into the conduct underlying a conviction (such as a 'not of good character' complaint), the practitioner must be permitted to lead evidence challenging the facts of that conduct, even if inconsistent with the conviction. The public policy against collateral attack on convictions is not engaged where the purpose is to respond to a conduct-based complaint rather than to impugn the conviction itself. Statutory provisions facilitating proof of convictions and transcripts do not make them conclusive evidence of the underlying facts in such proceedings.