Luo v Health Care Complaints Commission

1. [1]

   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.

2. [2]

   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.

3. [3]

   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.

4. [4]

   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

1. [5]

   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.

2. [6]

   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.

3. [7]

   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.

4. [8]

   Mr Luo was indicted on a single count of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).

5. [9]

   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.

6. [10]

   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

1. [11]

   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]).

2. [12]

   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:

3. [13]

   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.

4. [14]

   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.

5. [15]

   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:

6. [16]

   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]).

7. [17]

   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]).

8. [18]

   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).

9. [19]

   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.

10. [20]

    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.

11. [21]

    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”.

12. [22]

    Section 130 of the National Law relevantly provides:

13. [23]

    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.

14. [24]

    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.

15. [25]

    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:

16. [26]

    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).

17. [27]

    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.

18. [28]

    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]).

19. [29]

    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.

20. [30]

    Stage two is presently stayed pending the outcome of this appeal.

Dr Ee’s evidence summarised

1. [31]

   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.

2. [32]

   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.)

3. [33]

   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.

4. [34]

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

5. [35]

   Dr Ee was instructed to make reference to “any professional guidelines, standards or literature that you consider to be relevant to the matter”.

6. [36]

   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).

7. [37]

   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”.

8. [38]

   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:

9. [39]

   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.

10. [40]

    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:

11. [41]

    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:

12. [42]

    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.

13. [43]

    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):

14. [44]

    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.

15. [45]

    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.

16. [46]

    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.

17. [47]

    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):

18. [48]

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

19. [49]

    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):

20. [50]

    As will be further developed, Mr Luo complains that this comment is inconsistent with other evidence given by Dr Ee (see [77(e)] below).

21. [51]

    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):

22. [52]

    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

1. [53]

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

2. [54]

   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):

3. [55]

   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):

4. [56]

   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:

5. [57]

   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.

6. [58]

   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).

7. [59]

   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.

8. [60]

   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):

9. [61]

   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

1. [62]

   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.

2. [63]

   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.

3. [64]

   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.

4. [65]

   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):

5. [66]

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

6. [67]

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

7. [68]

   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.

8. [69]

   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.

9. [70]

   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:

10. [71]

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

11. [72]

    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):

12. [73]

    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:

13. [74]

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

14. [75]

    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.

15. [76]

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

16. [77]

    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:

17. [78]

    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:

18. [79]

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

19. [80]

    Error 8 is as follows:

20. [81]

    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):

21. [82]

    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.

22. [83]

    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.

23. [84]

    Error 9 is as follows:

24. [85]

    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:

25. [86]

    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.

26. [87]

    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.

27. [88]

    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”.

28. [89]

    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:

29. [90]

    Error 10 is as follows:

30. [91]

    This alleged error is essentially a causation argument and relates to the whole of the Tribunal’s findings on complaint one.

31. [92]

    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.

32. [93]

    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.

33. [94]

    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.

34. [95]

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

35. [96]

    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”.

36. [97]

    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.

37. [98]

    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.

38. [99]

    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.

39. [100]

    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”.

40. [101]

    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.

41. [102]

    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.

42. [103]

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

43. [104]

    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”.

44. [105]

    In its written submissions in response, the HCCC denies that any error has been demonstrated. Accepting that a denial of procedural fairness can amount to an error of law, the HCCC emphasises that Mr Luo has not identified the manner in which he was denied procedural fairness in relation to complaint four.

45. [106]

    In his amended written submissions in reply, Mr Luo appears to clarify that his submission is that the Tribunal denied him procedural fairness by erring in the ways alleged in Errors 1 to 12.

Consideration and disposition

1. [107]

   Mr Luo’s essential complaint in relation to Errors 1, 3 and 4 seems to be that the Tribunal wrongly proceeded on the basis that Patient A’s cause of death was “unascertained” and that it determined that various particulars were proved despite the fact that they raised “causation issues”. It is not clear in what sense these complaints raise any question of law. Construed generously, the first could perhaps be characterised as a complaint that, by describing Patient A’s cause of death as, in practical reality, being “unascertained”, the Tribunal had regard to a prohibited consideration of the sort discussed by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24; [1986] HCA 40. Mr Luo’s complaint that the Tribunal determined “causation issues” might also be characterised as a complaint that the Tribunal determined questions beyond its statutory jurisdiction, or that it reasoned in a manner which was legally illogical having regard to its acceptance of the proposition that cause of death was not an issue for it. So framed, it could be accepted that alleged Errors 1, 3 and 4 raise questions of law, such that leave to appeal is not required.

2. [108]

   Even if it were appropriate to characterise Mr Luo’s complaints in this way, I do not accept any error has been demonstrated. Without doubt, the Tribunal accepted the HCCC’s submission that “[c]ause of death not being required to be established in these Stage One proceedings, the practical reality is that it could be treated as ‘unascertained’” (see at [164] and [165]). Read fairly, however, the Tribunal’s acceptance of this submission simply amounted to an acceptance of the proposition that the cause of death was not an issue it had to determine. This is supported by the fact that the Tribunal explicitly accepted that cause of death was not an issue for it (at [121]). It is also consistent with the fact that the Tribunal does not subsequently refer to, or place any emphasis on, Patient A’s cause of death being “unascertained”.

3. [109]

   Nor do I accept that, in finding the various particulars to have been proved, the Tribunal determined “causation issues”. Mr Luo seems to believe that the Tribunal made findings concerning Patient A’s ultimate cause of death in finding that the HCCC had, for example, proved that Mr Luo failed adequately to assess the deterioration of Patient A’s health on 2 June 2018 (Particular 8). As the HCCC correctly points out, however, none of the particulars to complaint one concerned the cause of Patient A’s death. This was explicitly recognised by the Tribunal (see at [121] and [122]).

4. [110]

   Nor did the Tribunal refer to the cause of Patient A’s death in finding any of the particulars to be proved. The Tribunal’s acceptance of many parts of Dr Ee’s evidence that specific parts of Mr Luo’s conduct fell significantly below the relevant standard does not provide any assistance to Mr Luo’s case. As I have repeatedly emphasised, Dr Ee was not briefed by the HCCC to provide any opinion on the cause of Patient A’s death and she made pellucidly clear in her evidence that she did not opine on the cause of death. Her only reference to that subject appears in her second report and is a direct rebuttal to Mr Luo’s submission to the contrary.

5. [111]

   I reject Mr Luo’s claim that Dr Ee’s evidence in her two reports to the HCCC and in her oral evidence was affected by the views she expressed in her earlier report to the DPP having to do with causation (see at [51] above). The HCCC did not ask Dr Ee to express any opinion on cause of death, as is made clear in the instructions that she was given. There is simply no basis for any suggestion that, by a process of osmosis, her separate report to the DPP affected her opinion evidence under her retainer by the HCCC.

6. [112]

   There is another fundamental problem with this aspect of Mr Luo’s case. It relates to his acquiescence in the way in which the case was conducted below and, in particular, to his agreement not to press his medical evidence concerning cause of death when the HCCC made clear to the Tribunal that it would not rely on any parts of its medical evidence relating to that issue. In brief, the history of the proceedings relating to this issue is as follows.

7. [113]

   First, counsel for the HCCC acknowledged in response to a question from the Tribunal’s presiding member on the first day of the hearing that it was not part of the HCCC’s case that Mr Luo caused the death of Patient A.

8. [114]

   Secondly, counsel later stressed that, insofar as stage one was concerned, the proceedings did not require the Tribunal to determine the cause of death.

9. [115]

   Thirdly, there were repeated references thereafter by the HCCC’s counsel to the fact that it conceded that the Tribunal was not being asked to consider cause of death.

10. [116]

    Fourthly, the presiding member made clear to Mr Luo that if he wished to argue that Patient A’s death was from natural causes, this would mean that the evidence of the HCCC’s medical experts on that topic would need to be admitted.

11. [117]

    Fifthly, as the exchange developed, the presiding member then said that the HCCC would not be seeking to prove the cause of death and the Tribunal would not be inquiring into the cause of death, hence there was no reason for Mr Luo to prove to the contrary.

12. [118]

    Sixthly, as to Mr Luo’s criticisms of aspects of an expert report by Dr Skinner, who had been retained by the HCCC, the presiding member said that he could not understand the relevance of any opinion evidence by Dr Skinner regarding the cause of death “when we’re not here to discuss the cause of death”. There was a similar discussion regarding Mr Luo’s objection to another of the HCCC’s experts, Professor John Carter. The objection related to Professor Carter’s conclusion concerning the cause of death. A similar ruling was given on that objection to that relating to Dr Skinner and Mr Luo was informed that he was entitled to cross-examine the witnesses.

13. [119]

    Seventhly, Mr Luo said that he wanted to cross-examine three of the HCCC’s experts, including Dr Ee.

14. [120]

    Eighthly, after further considerable discussion, on the third day of the hearing counsel for the HCCC confirmed that it was prepared not to rely on statements of experts expressing an opinion as to the cause of Patient A’s death, at least for stage one of the proceedings.

15. [121]

    Ninthly, and significantly, at this point Mr Luo said that if “all the remarks, opinions concerning the cause of death are deleted, that will resolve the core issue that I am having at the moment” and that he did not need to cross-examine the witnesses.

16. [122]

    Tenthly, the presiding member then said to Mr Luo that if the HCCC’s evidence on cause of death was excluded, did this mean that Mr Luo’s expert evidence on cause of death would also be excluded, to which Mr Luo answered in the affirmative. The transcript records the following exchange:

17. [123]

    Eleventhly, the HCCC subsequently provided a statement which identified the paragraphs in the expert reports relating to cause of death which were withdrawn from the evidence it had tendered.

18. [124]

    Twelfthly, despite the clear ultimate position which was reached on the third day of the hearing that neither party sought to rely on evidence concerning cause of death, Mr Luo attempted to reagitate his claim that cause of death was relevant, a claim which was repeatedly rejected by the Tribunal both in the course of the hearing and also in its reasons for decision in HCCC v Luo (No 1) at [121] and [122].

19. [125]

    There is a further point to note about the issue of causation. Notwithstanding Mr Luo’s acknowledgement that he no longer relied upon his medical evidence regarding cause of death after the HCCC confirmed that this was not an issue, he now appears to complain that the Tribunal erred in its ruling on causation and that cause of death was a relevant matter for the Tribunal to determine. This change of position seems to be driven by a desire on Mr Luo’s part to make good his claim that different standards would apply to an assessment of his conduct if Patient A died of natural causes. But once both parties withdrew their expert evidence on the issue of causation because it was no longer relevant, it is difficult to see how the Tribunal could have proceeded to make meaningful findings on that issue, even if it had wished to do so.

20. [126]

    In the light of the conduct of the proceedings below and Mr Luo’s acquiescence in the position stated by both the HCCC and the Tribunal, there are formidable hurdles in the path of Mr Luo’s evident change of position. Furthermore, for reasons which I will further develop, the change of position takes him nowhere because there is simply no substance at all in his claim that different standards apply where a death is determined to be by natural causes. Even in such a case, the care and treatment of the deceased person by a medical practitioner could be investigated and the subject of regulatory processes.

21. [127]

    Finally, I entirely reject Mr Luo’s claim that the Tribunal acted illegally by accepting at [165] of its reasons the HCCC’s submission that “the practical reality is that [the cause of death] could be treated as ‘unascertained’” for the purposes of stage one. It is frankly preposterous to suggest that the Tribunal’s use of the term “unascertained” in this context indicates that it had usurped the role and jurisdiction of the Coroner to determine the cause of death pursuant to the Coroners Act 2009 (NSW) and related regulations. The Tribunal was doing no such thing. The Tribunal made abundantly clear that the cause of Patient A’s death was irrelevant having regard to the terms of the amended complaint and the way in which the case was conducted.

22. [128]

    For these reasons, the appeal is dismissed in relation to Errors 1, 3 and 4.

23. [129]

    Error 2 raises some different issues but also repeats Mr Luo’s complaints concerning the issue of cause of death. In his initial written submissions, Mr Luo’s complaint seemed to be that the Tribunal improperly admitted and relied on Dr Ee’s evidence in circumstances where that evidence went to the cause of Patient A’s death.

24. [130]

    The HCCC rightly responded that the decision to admit Dr Ee’s evidence is an interlocutory decision for the purposes of cl 29(6) of Sch 5 of the CAT Act, such that a grant of leave is required to appeal in relation to this issue. Mr Luo never sought leave to appeal from HCCC v Luo (No 2), in which the admissibility of Dr Ee’s reports was determined.

25. [131]

    In reply, however, Mr Luo somewhat confusingly denies that he seeks to appeal from the decision to admit Dr Ee’s evidence. Instead, he characterises the alleged error as “tampering evidences and misleading as Pervert the course of Justice and Coroners Act and Coroner Inquest”. These serious allegations seem to be directed towards the HCCC’s conduct, as opposed to any error of the Tribunal, and they disclose no real question of law. In any event, the allegations are entirely baseless and should never have been made as I have explained at [69] above.

26. [132]

    These issues aside, and assuming (without deciding, because no application has been made) that leave to appeal against the Tribunal’s decision to admit Dr Ee’s evidence should be granted, I do not accept that any error has been demonstrated. The Tribunal gave a full and convincing explanation in HCCC v Luo (No 2) as to why it rejected all Mr Luo’s objections to Dr Ee’s evidence, including his challenge to her qualifications and experience, as well as his claim that she had a conflict of interest.

27. [133]

    Moreover, as the HCCC points out, Dr Ee’s instructions make unambiguously plain that she was not instructed to provide an expert opinion on the cause of death (see at [43] above). She referred to Patient A’s death only once in her reports (in her second report, as to which see at [46] above) and then only in the context of responding to a claim made by Mr Luo in his written submissions concerning the first report. The Tribunal did not rely on that particular part of Dr Ee’s second report. As noted above, it did not consider the cause of Patient A’s death at all. To the extent that it relied on Dr Ee’s reports in other respects, it was entitled to do so.

28. [134]

    On any view, the appeal on this ground must fail.

29. [135]

    Mr Luo’s essential complaint in relation to Errors 5 and 7 is that there was no evidence to support the Tribunal’s finding that he had failed to meet the standards expected of Chinese herbal medical practitioners in his position, since there was no evidence of what the relevant standards were. The proposition that it is an error of law to make a finding of fact for which there is no evidence is uncontroversial. Less clear is whether it raises a question of law. For present purposes, I am willing to accept that it does.

30. [136]

    However, I do not accept that there was no evidence to support the Tribunal’s finding that Mr Luo’s conduct was significantly below the applicable standard. The Tribunal referred to relevant evidence in respect of each of the particulars it found to be proved, including, in many instances, the expert evidence of Dr Ee, who was subjected to an extensive cross-examination before the Tribunal. The Tribunal was also entitled to take into account and rely upon the specialist medical knowledge and experience of two of the members who constituted the Tribunal (see Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111 at [51]), as well as the Tribunal’s own assessment of whether Mr Luo’s conduct was significantly below the relevant standard, including but not limited to the relevant standards outlined in the 2014 version of the CMBA CoC.

31. [137]

    Mr Luo’s submission that only the Chinese Medicine Board of Australia was entitled to give evidence of the applicable standards finds no support in the National Law. It also flies in the face of the express terms of s 30(1) and (4) of the Complaints Act as in force at the relevant time (see at [32] above).

32. [138]

    Nor is there any substance in Mr Luo’s claim that Dr Ee’s evidence was misconceived because she addressed the 2020 version of the CMBA CoC rather than the 2014 version which was relevant to conduct in 2018. It is clear from Dr Ee’s two expert reports that her opinions were given on the basis of her understanding of the CMBA CoC dated 2014. She repeatedly confirmed this in her oral evidence. The Tribunal was entitled to rely on all that evidence in preference to the matters raised by Mr Luo.

33. [139]

    Mr Luo also makes an ambiguous submission (which he repeated at [18]–[20] of his post-hearing submissions headed “Submissions in Reply Additional”) to the effect that the Tribunal ignored evidence which suggested that he had in fact acted in accordance with the relevant professional standards. This could be seen as a submission that the Tribunal reasoned unreasonably or illogically given the evidence before it. As Leeming JA explained in Thomas and Naaz at [53], however, the fact that a finding is “unreasonable” or “not reasonably open” is not ordinarily a question of law. In any case, I do not accept that the Tribunal’s findings were unreasonable given the evidence before it. The Tribunal was well entitled to prefer the evidence of Dr Ee to the evidence which Mr Luo says it ignored.

34. [140]

    If Mr Luo’s complaint is directed to his claim that the Tribunal overlooked allegedly inconsistent evidence given by Dr Ee on the issue of a practitioner giving warnings about dangers, the claim is baseless. The sequence of relevant events is as follows:

35. [141]

    Contrary to Mr Luo’s claim, there is no inconsistency in Dr Ee’s evidence on this matter. She simply made clear that whether or not a practitioner’s warning of danger was within the standards could not be answered hypothetically but would require regard to be had to the entirety of the relevant evidence. Accordingly, the claim of appealable error by the Tribunal is rejected.

36. [142]

    Mr Luo’s central complaint in relation to Error 6 is that Tribunal ignored certain evidence, including oral evidence from Person B which established that she was not in attendance on 26 May 2018 when her mother first consulted Mr Luo and a letter from Mr Luo’s then solicitor to the Chinese Medicine Council of NSW regarding the proper interpretation of Mr Luo’s email to the Council of 18 June 2018.

37. [143]

    Even if the Tribunal erred in its finding of fact that Person B was present during Mr Luo’s first consultation with Patient A, no question of law is disclosed by this error.

38. [144]

    In any event, I do not accept that the Tribunal’s error undermined its finding that Particular 2 was proved. As the HCCC correctly contended, the Tribunal relied on other evidence in reaching the conclusion that Particular 2 was established (see at [78] above). That other evidence is sufficient to support that conclusion independently of the factual error referred to above.

39. [145]

    Mr Luo also complains that the Tribunal did not refer to his solicitor’s letter dated 3 February 2020. This claim is without foundation. The correspondence is expressly referred to in HCCC v Luo (No 1) at [55(9)].

40. [146]

    In any event, this complaint does not raise a question of law. The Tribunal was not obliged to accede to the “translation” of Mr Luo’s email of 18 June 2018 advanced in that letter. The solicitor’s letter urged the Chinese Medicine Council to adopt a particular interpretation of an email dated 18 June 2018, which was addressed to the Chinese Medicine Council. In particular, Mr Luo made the following statement in that email (emphasis added):

41. [147]

    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:

42. [148]

    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:

43. [149]

    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”.

44. [150]

    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.

45. [151]

    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.

46. [152]

    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).

47. [153]

    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.

48. [154]

    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):

49. [155]

    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]).

50. [156]

    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.

51. [157]

    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.

52. [158]

    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.

53. [159]

    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].

54. [160]

    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.

55. [161]

    To the extent that Error 11 raises a “no evidence” ground, I am willing to accept that a question of law is raised.

56. [162]

    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.

57. [163]

    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.

58. [164]

    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”.

59. [165]

    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:

60. [166]

    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.

61. [167]

    The HCCC’s post-hearing supplementary submissions dated 2 September 2025 may be summarised as follows:

62. [168]

    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:

63. [169]

    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.

64. [170]

    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.

65. [171]

    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.

66. [172]

    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.

67. [173]

    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.

68. [174]

    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.

69. [175]

    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.

70. [176]

    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.

71. [177]

    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.

72. [178]

    The functions of National Boards are set out in s 35 of the National Law. Relevantly, they include the following:

73. [179]

    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.

74. [180]

    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:

75. [181]

    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]:

76. [182]

    The Tribunal does not state in terms who is the National Board for this purpose.

77. [183]

    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.

78. [184]

    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.

79. [185]

    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.

80. [186]

    On 10 September 2025, the Court made the following orders arising from the HCCC’s application for leave to adduce further evidence:

81. [187]

    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:

82. [188]

    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):

83. [189]

    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.

84. [190]

    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.

85. [191]

    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).

86. [192]

    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.

87. [193]

    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

1. [194]

   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.