Luo v Health Care Complaints Commission [2025] NSWSC 1121 | Case summary | Zoe

NSWNSWSC

Luo v Health Care Complaints Commission

[2025] NSWSC 1121

Supreme Court of NSW|2025-09-29|Before: Griffiths AJ

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-09-29

Before

Griffiths AJ

Catchwords

OCCUPATIONS — health practitioners — misconduct and
discipline — where disciplinary proceedings commenced by Health
Care
Complaints Commission — where NSW Civil and Administrative Tribunal

Source

Original judgment source is linked above.

Catchwords

OCCUPATIONS — health practitioners — misconduct anddiscipline — where disciplinary proceedings commenced by HealthCareComplaints Commission — where NSW Civil and Administrative Tribunalupheld complaints of unsatisfactory professional conductand professionalmisconduct — whether Tribunal erred on a question of law—meaning of “National Board” ins 130 of Health PractitionerRegulation National Law (NSW)

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Luo v Health Care Complaints Commission [2025] NSWSC 1121

Hearing dates: 19–20 August 2025, further written submissions provided on 2, 9, 17 and 24 September 2025

Date of orders: 29 September 2025

Decision date: 29 September 2025

Jurisdiction: Common Law

Before: Griffiths AJ

Decision: (1) Time is extended for the plaintiff to rely on the further amended summons dated 4 August 2025.
(2) Further amended summons dismissed.
(3) Plaintiff to pay defendant’s costs.

Catchwords: OCCUPATIONS — health practitioners — misconduct and discipline — where disciplinary proceedings commenced by Health Care Complaints Commission — where NSW Civil and Administrative Tribunal upheld complaints of unsatisfactory professional conduct and professional misconduct — whether Tribunal erred on a question of law —meaning of “National Board” in s 130 of Health Practitioner Regulation National Law (NSW)

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.
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.
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.
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.

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

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]).
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]).
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).
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.
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.

(a) The appropriateness of Mr Luo’s advice to Patient A at her initial consultation on 26 May 2018 that she cease all Western medicines, including her prescribed medications for “high blood sugar”. (b) The appropriateness of his care and treatment of Patient A on 30 May 2018 (with reference to the WeChat messages) when he failed to recommend medical review at that stage even though he was told that Patient A was “in a lot of [abdominal] pain”. (c) With reference to Mr Luo’s treatment notes and the WeChat messages, Mr Luo’s failure to advise Patient A to attend for medical care, where she had been vomiting for four days up to 2 June 2018 and Person B told Mr Luo that there were streaks of blood in her mother’s vomit and she was vomiting constantly. (d) Again, with reference to the WeChat messages, by 5 June 2018 Mr Luo was aware that Patient A’s dizziness had resumed and that she was unable to walk from the bathroom to the bedroom without assistance, yet he advised ongoing Chinese herbal medicine and diet therapy rather than recommending urgent medical attention. In this respect, Dr Ee referred to relevant parts of the CMBA CoC. (e) With reference to Mr Luo’s treatment notes and the WeChat messages, Dr Ee said that Mr Luo breached multiple aspects of the CMBA CoC in relation to the care and treatment of Patient A on 6 June 2018 when Patient A’s condition had further deteriorated. (f) Similar opinions were expressed with reference to Mr Luo’s care and treatment of Patient A on 7 June 2018, when Mr Luo told Person B that the “situation was holding up”. This was described by Dr Ee as “inappropriate advice for someone who is almost unconscious, and [Mr Luo] should have called for immediate medical attention”. Dr Ee opined that Mr Luo had failed to act in Patient A’s best interests and failed to consider her safety as a priority, referring to the Handbook of Internal Medicine, which recommended additional urgent assistance in Patient A’s circumstances on 7 June 2018. (g) A similar opinion was expressed in relation to Mr Luo’s care and treatment of Patient A on 8 June 2018 when he prescribed diet therapy to an unconscious person who was suffering from a severe acute illness and was unable to eat or drink. She opined that Mr Luo should have called for urgent medical attention. (h) Dr Ee explained why Mr Luo’s diagnosis should have changed after the initial consultation due to the deterioration of Patient A’s condition in multiple respects and opined that his failure to do so was significantly below the standard expected. (i) With reference to the CMBA CoC, Dr Ee also explained in some detail why she considered that Mr Luo had breached in a serious way various parts of the CMBA CoC relating to patient safety. (j) With reference to Mr Luo’s conduct in prescribing Chinese diet therapy for Patient A once she had become acutely unwell, particularly after 6 June 2018 when she had become “seriously unwell”, Dr Ee opined that one of the “grossest breaches of the code of conduct in terms of patient safety” was Mr Luo’s instruction to Person B to give her mother tomato soup instead of seeking urgent medical attention when he was told that Patient A was “unrousable” at 9:30 am. She added that it was “completely illogical to prescribe diet therapy to an unconscious person not to mention against the principles of diet therapy which is aimed for chronic illness and health promotion”.

(a) As to Error 1, Mr Luo submits that the HCCC ran its case on the basis of “causation” and that the Tribunal relied on “illegal evidences” concerning causation. He appears to submit that it was improper for the Tribunal to treat Patient A’s cause of death as “unascertained”, as he contends that the Coroners Court has exclusive jurisdiction to determine the issue. He also appears to submit that there was no authorised evidence of the cause of death from the Coroners Court and that, in these circumstances, the Tribunal was obliged to treat the cause of death as “natural causes”. He refers in this respect to several provisions in the Coroners Act 2009 (NSW) and Coroners Regulation 2021 (NSW). (b) As to Error 2, Mr Luo submits that Dr Ee’s expert reports were “illegal”, since her evidence was similar to evidence which she had previously provided, including in her report to the DPP, which was “deleted during the NCAT hearing” (see at [51] above). He submits that Dr Ee’s evidence was improperly relied on by the HCCC in relation to Particulars 1, 2, 5, 6, 7, 9, 10, 11, 12, 13 and 14(d) and (e) of complaint one. The Tribunal is said to have erred in accepting this “illegal” evidence in circumstances where it also accepted that it was not its role to determine the cause of death. Mr Luo also makes the very serious allegation that the evidence was tampered with or falsified. I will have something more to say about those particularly serious allegations. He further asserts that there was no evidence to support Dr Ee’s opinion that his conduct fell “significantly below the standard expected” of practitioners. (c) As to Error 3, Mr Luo submits that the Tribunal erred in finding that the following particulars were established in circumstances where it was not the Tribunal’s role to determine causation issues, the HCCC’s case was not based on causation and there was no evidence to support its causation findings: Particulars 1(a) and (b), 2, 5, 6(a) and (c), 7(a) and (c), 9(a), (c) and (d), 10(a) and (d), 11(a), (b), (d) and (e), 12(a), (c), (d) and (e), 13(a), (c), (d) and (e) and 14(d) and (e). The relevant particulars are said to be those related to the issues of “safety, risk, dangerous, deterioration, benefit, harm, negligence”. Each is addressed individually by Mr Luo. (d) As to Error 4, which is repetitive, Mr Luo submits that the Tribunal erred in failing to appreciate the relevance to complaint one of the fact that the cause of death was “natural causes”. That this was the cause of death is said to be supported by “evidences of facts and standards about the natural causes of death”. He repeatedly asserted that different standards apply where there is a natural cause of death, going so far as to claim that in such a case a medical practitioner like himself is immune from any criminal, civil or regulatory liability. His position is recorded in [166] of his amended written submissions dated 4 August 2025:

(a) The HCCC appears to acknowledge that there is no evidence to support the Tribunal’s finding that Person B was present during the 26 May 2018 consultation (noting that, in oral address, the HCCC said that the evidence is “unclear”), but submits that, in any event, there was other evidence which underpinned the Tribunal’s finding that Particular 2 was proved, such that the factual error is not material. (b) As to that part of Particular 2 concerning blood sugar medication, the HCCC submits that the Tribunal properly relied on Mr Luo’s email dated 18 June 2018 to the Chinese Medicine Council, as well as on Mr Luo’s evidence in the s 150 proceedings on 27 June 2018. (c) As to that part of Particular 2 concerning the cessation of “all Western medication”, the HCCC submits that the Tribunal properly relied on Person B’s police interview on 8 June 2018, Mr Luo’s admissions in a recorded conversation between himself and Person B on 11 June 2018 and Mr Luo’s views, expressed to the Tribunal, that Western medicine could cause death. (d) The HCCC emphasises the fact that, during Person B’s police interview on 8 June 2018, she “said [Mr Luo] told [Patient A], at the consultation of 26 May 2018, at which [Person] B was present: ‘don’t take any Western tablets … Western tablets … has some poison’”. Recognising that it is not entirely clear whether Mr Luo said these words during or after the first consultation, the HCCC submits that it is nevertheless clear that Person B heard Mr Luo say these words. As such, the Tribunal’s finding that Person B was present during the consultation is said to be irrelevant. (e) The HCCC accepts that Mr Luo relied on the 3 February 2020 letter to the Chinese Medicine Council and that the Tribunal did not refer to this evidence in its reasons. However, it submits that this does not amount to an error of law or, if it does, that the error was immaterial to the Tribunal’s finding that Particular 2 was proved.

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”.
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.
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.
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.
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”.
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.
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.

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.
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”.
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]).
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.
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.
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.
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.
Secondly, counsel later stressed that, insofar as stage one was concerned, the proceedings did not require the Tribunal to determine the cause of death.
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.
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.
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.
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.
Seventhly, Mr Luo said that he wanted to cross-examine three of the HCCC’s experts, including Dr Ee.
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.
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.
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:

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

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

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.
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.
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).
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.
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.
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:

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.
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).
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.
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):

(a) The HCCC’s primary submission was that the question whether AHPRA and not the Chinese Medicine Board of Australia is the relevant entity is not raised by the further amended summons. It added that, accordingly, its supplementary submissions were made simply as a matter of “courtesy” and to assist that Court, “but in the expectation that any discussion of this matter in the judgment will be by way of obiter dicta, given that there is no ground of appeal suggesting that the Tribunal erred on a question of law by accepting evidence from AHPRA for the purposes of determining that the plaintiff had not complied with s.130 of the National Law”. (b) If the Court determined not to address the matter that way, the HCCC sought leave to adduce fresh evidence in response to the question. (c) After setting out various provisions of the National Law, including s 25, and referring to the correspondence between AHPRA and the HCCC regarding notification, the HCCC contended that it was “noteworthy” that both bodies proceeded on the basis that AHPRA is the relevant entity for inquiries regarding compliance with s 130. Reference was made to several Tribunal decisions which had also proceeded on the basis that AHPRA is the appropriate body to provide evidence regarding compliance with s 130. (d) The HCCC contended that the functions of AHPRA set out in s 25(a), (b), (e), (f) and (i) supported the HCCC’s position that AHPRA was the responsible body for the management of s 130 notification and pointed also to the fact that AHPRA’s correspondence in the matter stated “Ahpra and National Boards”. (e) While acknowledging that sub-paragraph 25(i) referred to AHPRA’s function of establishing “an efficient procedure for receiving and dealing with notifications against persons who are or were registered health practitioners” (emphasis added), the HCCC contended that this is sufficiently wide to include a health practitioner who self-reports a matter against themselves. (f) The HCCC also submitted that where one of the objects of the National Law was to include a national registration scheme administered by AHPRA, it is consistent with that scheme that AHPRA has the role of managing s 130 notifications. (g) Finally, the HCCC urged the Court to take judicial notice of the fact that the postal and street address of the Chinese Medicine Board of Australia and AHPRA are the same.

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

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.
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.
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).
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.

Luo v Health Care Complaints Commission

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Table of contents

JUDGMENT

Background

HCCC v Luo (No 1) summarised

Complaint one

Complaint three

Complaint four

Dr Ee’s evidence summarised

Dr Ee’s first report dated 30 April 2023

Dr Ee’s second report dated 20 June 2023

Legal framework

Parties’ submissions summarised

Complaint one – Errors 1 to 4

Complaint one – Errors 5 and 7

Complaint one – Error 6

Complaint one – Error 8

Complaint one – Error 9

Complaint one – Error 10

Complaint three – Errors 11 and 12

Complaint four – Error 13

Consideration and disposition

Complaint one – Errors 1, 3 and 4

Complaint one – Error 2

Complaint one – Errors 5 and 7

Complaint one – Error 6

Complaint one – Error 8

Complaint one – Error 9

Complaint one – Error 10

Complaint three – Errors 11 and 12

Complaint four – Error 13

Conclusion

Parties

Legislation Cited (20)

Cases Cited (2)

Cited By (1)