He opposed Health Care Complaints Commission’s proposed procedural course
In a case where a registered Chinese medicine practitioner faced a complaint alleging unsatisfactory professional conduct and professional misconduct, the New South Wales Supreme Court’s Court of Appeal dismissed the appeal for incompetence due to the lack of leave.
In Luo v Health Care Complaints Commission [2026] NSWCA 42, the appellant practitioner treated an elderly patient in May and June 2018. The patient, who had type 2 diabetes, consulted with the appellant about a skin condition. On 8 June 2018, the patient arrived at Hornsby Hospital and passed away soon afterward.
In criminal proceedings, the appellant faced manslaughter charges. On 25 March 2022, Judge Pickering found the appellant not guilty.
The Health Care Complaints Commission (HCCC) – the respondent in this case – was the responsible regulator under the Health Care Complaints Act 1993 (NSW) and the Health Practitioner National Law.
Before the NSW Civil and Administrative Tribunal (NCAT), the HCCC commenced disciplinary proceedings under the Health Practitioner National Law. On 10 May 2024, the HCCC filed an amended complaint with four claims regarding the appellant’s conduct. Specifically, the HCCC alleged that he:
At a stage one hearing, involving factual findings and their characterisation as unsatisfactory professional conduct and professional misconduct, the NCAT determined that the evidence proved the first, third, and fourth claims.
At a stage two hearing, which had yet to occur, the NCAT would issue the proper remedial orders.
Before the Supreme Court of New South Wales, the appellant initiated proceedings assailing the NCAT’s decision following the stage one hearing. On 29 September 2025, the primary judge rejected all of the appellant’s 13 grounds.
On 17 December 2025, without seeking leave to appeal, the appellant filed with the Supreme Court’s Court of Appeal a notice of appeal with 44 grounds, many of which essentially repeated the prior 13 grounds.
At a 16 February 2026 hearing, the appeal court’s registrar indicated that the appellant needed to pursue leave and a summons seeking leave.
In a proposal to the appellant and the registrar, the HCCC asked the appeal court to make orders requiring the appellant to file and serve a summons seeking leave to appeal and a white folder. Opposing that solution, the appellant insisted that he did not require leave.
On 24 February 2026, the HCCC moved to dismiss the proposed appeal as incompetent because the appellant did not seek the required leave.
The Court of Appeal of the Supreme Court of New South Wales dismissed the appeal due to the lack of the required leave to appeal. The appeal court ordered the appellant to pay the respondent’s appeal costs and motion costs, as agreed or assessed.
The appeal court described the NCAT’s finding of unsatisfactory professional conduct or professional misconduct after a stage one hearing as a final judgment or order, not an interlocutory one.
The appeal court acknowledged that the appellant, who did not have the benefit of legal representation, might not have fully appreciated the leave requirement and the significance of failing to apply for leave.
However, the appeal court pointed out that the HCCC twice fairly and clearly informed the appellant about the leave requirement and even suggested a sensible and reasonable solution to the deficiency through the orders proposed for issuance at the 16 February 2026 hearing.
The appeal court noted that the appellant rejected that suggested solution and instead reiterated his position that he did not need leave.
