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A notice of appeal prepared for a penalised doctor contained a deficiency that has been criticised time and again, including in a nine-year-old decision that featured the same law firm and counsel.
The 11 grounds of appeal prepared on behalf of Dr Gerald Schwartz, represented by Neville Hourn + Borg Legal and senior counsel James Sleight, each commenced with the words “the tribunal erred in law in/by”, but never once identified a single question of law.
NSW Court of Appeal’s Justice Mark Leeming, supported by Justice Christine Adamson and acting Justice John Griffiths, said this was a “deficiency” that had also been identified in earlier cases, including the often-cited Schwartz Family Co Pty Ltd v Capital Carpets Pty Ltd.
Having drawn connections to the “Dr Jerry Schwartz” from the earlier judgment and the Dr Gerald Schwartz from the current matter, Justice Leeming found they concerned the same people, including the firm – then known as Neville + Hourn Legal – and senior counsel.
“It is regrettable that either the same barrister or the same law firm or both have failed to attend to the basic proposition for which earlier litigation involving the same counsel and law firm (and, so it would seem, for related parties) is regularly cited,” Justice Leeming said.
Justice Leeming said this drafting issue has “not come without advance warning”, citing decisions such as Medical Council of New South Wales v Mooney [2024], Kudrynski v Orange City Council [2024] and Ferella v Chief Commissioner of State Revenue [2014]
In the latter, Justice Leeming himself held: “Obviously, it is not possible, merely by the device of asking whether the tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal.”
“Twelve years of warning should be enough,” Justice Leeming said in the current written decision, published last week.
“Practitioners in this area should be aware of the basic preconditions to the jurisdiction their clients seek to invoke.”
Particular two of one complaint travelled “no further than particular one”, the conclusion of which “is favourable to Dr Schwartz” and turns on the wording of the particular. It does not affect whether the complaint was made out or its seriousness, Justice Leeming said.
To the extent required, leave to appeal was granted but the appeal dismissed.
A spokesperson for Neville Hourn + Borg, echoing observations of counsel, said leave to appeal was sought in the alternative “to accommodate the possibility that any of the grounds were found not to raise questions of law”.
Given leave to appeal was granted, the spokesperson said: “In those circumstances, there were no deficiencies in the Notice of Appeal to the extent it facilitated the court’s consideration and determination of the issues raised by each ground of appeal.”
Citation: Schwartz v Health Care Complaints Commission [2026] NSWCA 162.
