Luo v Health Care Complaints Commission

1. [1]

   FREE JA: Yun Sen Luo (Mr Luo) is a registered Chinese medicine practitioner. The respondent (HCCC) is the responsible regulator under the Health Care Complaints Act 1993 (NSW) and the Health Practitioner National Law. In May and June 2018 Mr Luo provided treatment to an elderly patient who has been referred to in proceedings as “Patient A”. Patient A suffered from Type 2 diabetes. She consulted with Dr Luo not about her diabetes but about a skin condition.

2. [2]

   Patient A presented to Hornsby Hospital on 8 June 2018 and unfortunately died soon after arrival. The circumstances of Dr Luo’s treatment of Patient A gave rise to criminal proceedings, in which Dr Luo was charged with manslaughter. On 25 March 2022 Judge Pickering SC found Dr Luo not guilty. Thereafter the HCCC brought disciplinary proceedings in NCAT under the National Law. The hearing proceeded on an amended complaint, filed on 10 May 2024, in which the HCCC made four complaints about the conduct of Dr Luo.

3. [3]

   The HCCC alleged that Mr Luo had engaged in unsatisfactory professional conduct, and professional misconduct, within the meaning of the National Law, in his treatment of Patient A. The particulars of the complaints included that Mr Luo failed to obtain a sufficient medical history for Patient A, advised her to cease all “Western medicine” (including her prescribed medicine for “high blood sugar”), failed to consider new symptoms as they emerged and the apparent deterioration in Patient A’s health and failing to reconsider his diagnosis and treatment plan in light of Patient A’s developing condition.

4. [4]

   After a seven day hearing, the Tribunal found that three of the complaints (namely, complaints one, three and four, were proven). This was what is known as a “Stage One” hearing, in which the Tribunal made findings on the allegations of fact and the related characterisation of those findings as constituting unsatisfactory professional conduct and professional misconduct (see Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 at [44]). The Tribunal did not determine the appropriate remedial orders. Such orders will be the subject of a Stage Two hearing, which has yet to occur.

5. [5]

   Mr Luo brought proceedings in the Supreme Court challenging the Stage One decision of the Tribunal. His appeal was commenced by summons and by the time of hearing before the primary judge, Griffiths AJA, Mr Luo relied on a further amended summons. The appeal was brought pursuant to cl 29(4) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW). Pursuant to that sub-clause, an appeal may be brought as of right on any question of law or, with leave of the court, on any other grounds.

6. [6]

   Mr Luo did not apply for leave to appeal on grounds other than question of law. Instead, he raised thirteen grounds which he asserted were “errors of law” which, according to Mr Luo, raised questions of law. Mr Luo was self-represented at trial before Griffiths AJA. The primary judge observed, at [55], that many of the errors asserted by Mr Luo were properly characterised as errors of fact, for which leave to appeal is required. Even to the extent that Mr Luo identified alleged errors of law, it did not follow that these were also questions of law, given that the two concepts are not synonyms, The primary judge also observed, at [62], that the various grounds of appeal and related submissions advanced by Mr Luo were confusingly expressed and substantially overlapped with each other.

7. [7]

   Each of Mr Luo’s thirteen grounds was rejected by the primary judge, in a judgment delivered on 29 September 2025.

8. [8]

   On 17 December 2025, Mr Luo filed a notice of appeal. It contains 44 grounds, many of which effectively repeat the grounds relied on before Griffiths AJA at trial.

9. [9]

   Mr Luo has not sought leave to appeal. The HCCC’s position, about which it put Mr Luo on notice just two days after he filed his notice of appeal, is that leave is required under s 101 of the Supreme Court Act 1970 (NSW) (Supreme Court Act). The argument turns on the application of s 101(2)(r). Pursuant to that part of s 101(2), leave is required to appeal from a final judgment or order in proceedings of the Court, other than an appeal that either involves a matter at issue amounting to, or of the value of, $100,000 or more or, in the alternative, involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.

10. [10]

    Mr Luo has been steadfast in his position that he does not require leave. He maintains that because the subject matter of his appeal is professional discipline, s 101(2)(r) has no application. He also seeks to rely on an argument that under the relevant provision of Sch 5 to the Civil and Administrative Tribunal Act, he can appeal on a question of law to the Court of Appeal. Mr Luo communicated that position to the HCCC on 2 February 2026. The HCCC, quite reasonably in the circumstances, proposed to Mr Luo and the Registrar of the Court of Appeal that the Court should make orders under which Mr Luo would be required to file and serve a summons seeking leave to appeal and a white folder (being the appropriate procedure to be followed in leave matters).

11. [11]

    Mr Luo opposed that course and maintained that leave is not required. That was apparently also in the face of indications from the Registrar when the matter was heard on 16 February 2026 that leave was required and that a summons seeking leave should be filed.

12. [12]

    Following those events, the HCCC filed the present motion on 24 February 2026 seeking that the putative appeal be dismissed, in essence, on the basis that it is incompetent in circumstances where leave is required but has not been sought. Pursuant to s 46(1)(b) of the Supreme Court Act, a single Judge of Appeal may exercise the powers of the Court of Appeal to dismiss an appeal “for want of prosecution or for other cause specified in the rules”. An appeal may be dismissed as incompetent upon the objection of a respondent under r 51.41(1) of the Uniform Civil Procedure Rules 2005 (NSW). The rules thus specify the present circumstances as providing cause for an appeal to be dismissed: McGinn v Cranbrook School [2015] NSWCA 378 at [5].

13. [13]

    When the notice of motion was heard before me today, I clarified with Mr Luo whether his position had changed. It had not. Mr Luo has maintained the position that leave is not required and he has no intention of filing an application for leave to appeal. The matter therefore turns on whether or not leave is in fact required.

14. [14]

    The authorities as to the application of s 101(2)(r) of the Supreme Court Act are clear. Where a party seeks to appeal from a final judgment or order, the sub-section is engaged, and it falls to the party seeking to appeal to demonstrate that the subject matter of the appeal satisfies the monetary threshold. It is for this reason that the requirement for leave has been consistently held to apply in cases involving adverse disciplinary findings about professional conduct; see for example, Hilton v Legal Profession Admission Board at [46]; see also, for the cognate requirement of leave, in the High Court, Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40: at 205.

15. [15]

    Turning to the particular context of this matter, a finding of NCAT of unsatisfactory professional conduct or professional misconduct following a Stage One hearing is a final judgment or order, not an interlocutory one; see HCCC v Robinson (1960) 104 CLR 186; [1960] HCA 40 at [83] [85], see also [18] and [25].

16. [16]

    While on HCCC v Robinson, I note that Mr Luo sought to rely on that case as authority for the proposition that a practitioner in his position can appeal on a question of law from the Tribunal directly to the Court of Appeal. As the HCCC has correctly pointed out in its submissions, that is the situation where the appeal is brought from a decision of the Tribunal constituted by a panel that includes a judicial member, as was the case in Robinson. The situation is different where the Tribunal does not feature a judicial member, as in the present case. In that latter scenario, an appeal on a question of law made to the Supreme Court is assigned to the Common Law Division, as has occurred in this case. Robinson therefore does not support Mr Luo's position in terms of providing a right to appeal on a question of law as of right to the Court of Appeal.

17. [17]

    The principles which apply in the application of s 101(2)(r) were stated by the Court of Appeal in Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [13]-[19] (per Bell P, Basten and Leeming JJA agreeing) (Gaynor v Attorney General). They include the following:

    1. (1)

       the onus lies on the party asserting that it may bring its appeal as of right to demonstrate that the amount in issue meets the $100,000 threshold;

    2. (2)

       this involves showing that a successful appeal would improve the party’s financial position by at least that amount; and

    3. (3)

       this requires demonstration of a realistic prospect on appeal of lessening the prejudice that the party would otherwise suffer by reason of the order appealed against. There must be a proper evidentiary basis for the party’s contentions in this regard.

18. [18]

    Because of the position he has taken that he does not require leave, Mr Luo has not taken on the burden of trying to demonstrate that the $100,000 monetary threshold in s 101(2)(r) is satisfied. Instead, he has effectively chosen to rely on his assertion that the limitation simply does not apply and he may appeal as of right.

19. [19]

    In approaching this issue, I am conscious of the fact that Mr Luo is appearing for himself and does not have a benefit of legal assistance. I therefore make every allowance in his favour for the possibility that the matter could satisfy the $100,000 threshold.

20. [20]

    However, given the nature of the order that is in issue, that is, a finding of unsatisfactory professional conduct and professional misconduct in the Tribunal, there is no apparent basis to conclude that a success on an appeal going to the validity of those orders would alter Mr Luo's financial position in an immediately quantifiable way. Therefore, this is not a situation where one can say there is a realistic prospect on appeal that Mr Luo's success leading to a lessening of a prejudice that he would otherwise suffer in an amount that is quantifiable and in an amount over $100,000.

21. [21]

    In approaching these issues, I make allowance for the fact that Mr Luo, in not having the benefit of legal representation, may not have fully appreciated the leave requirement and the significance of not bringing an application for leave. However, in this case, the HCCC has quite fairly, in clear terms, and on two separate occasions, let Mr Luo know about the requirement for leave. It has also proposed what was a perfectly sensible and reasonable solution to the deficiency, that being the set of orders which was proposed to be made on 16 February 2026.

22. [22]

    Mr Luo, having had the opportunity to consider that position, rejected that course and has effectively chosen to maintain his view that leave is not required. Unfortunately for Mr Luo, I do not accept that he is correct in that regard. Leave is required and the purported appeal is therefore incompetent.

23. [23]

    For that reason, the appeal should be dismissed in accordance with the notice of motion filed by the HCCC, and Mr Luo should pay the HCCC's costs as agreed or assessed of the appeal and the motion.

Orders

1. [24]

   The orders of the Court are:

   1. (1)

      Appeal dismissed.

   2. (2)

      Appellant to pay the respondent’s costs as agreed or assessed.