Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gautam v Health Care Complaints Commission (No 1) [2021] NSWCA 1 Hearing dates: 13 January 2021 Decision date: 13 January 2021 Before: Basten JA Decision: 1. Stay order 2 made by the Civil and Administrative Tribunal in relation to the practitioner on 15 December 2020 so that the suspension of three months does not commence until the determination of the appeal pending in this Court. 2. Direct that the parties liaise for the purpose of ensuring that the appeal is able to be listed and determined expeditiously and in that respect I note that I would expect it to be heard in the month of March. 3. Grant leave to either party on three days' notice to have the matter relisted before this Court for further directions in the event that any delay is anticipated. 4. Direct that the costs of the motion be costs in the appeal. Catchwords: PRACTICE AND PROCEDURE – appeal – stay – medical practitioner – finding of professional misconduct – order suspending registration – period of suspension likely to expire before appeal determined – appeal reasonably arguable – misconduct involved single incident three years before order made – order the suspension not commence for 30 days – no evidence of immediate risk to patients or parents Category: Procedural and other rulings Parties: Bijender Kumar Gautam (Applicant) Health Care Complaints Commission ( Representation: Counsel: Mr M Hutchings (Applicant) Mr I Chatterjee (Respondent) Solicitors: Meridian Lawyers (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2021/2455 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2020] NSWCATOD 146 Date of Decision: 15 December 2020 Before: Balla ADCJ, Dr J Gillis, Dr H Haikal-Mukhtar, J Houen File Number(s): 2019/265620 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: The applicant is a medical practitioner who has been the subject of adverse findings by the Occupational Division of the Civil and Administrative Tribunal in relation to his practice as a consultant paediatrician. The findings relate to an incident involving the parent of one of the children he was treating. The incident took place on 21 December 2017. There was some delay (to which it will be necessary to return) before the respondent Health Care Complaints Commission lodged a complaint with the Tribunal, which was determined on 15 December 2020. 2. The three orders made by the Tribunal were (1) a reprimand of the practitioner; (2) an order suspending his registration for three months commencing 30 days from the date of the order, that is from 15 December 2020 and (3) an order for costs. It is accepted that order (2) will take effect on 15 January 2021 if the stay which is now sought by the practitioner is not granted. 3. For the purposes of this hearing the Court has before it limited material in relation to the effect of the suspension on the practitioner's practice. It also has limited information about the evidence before the Tribunal. One matter noted by the respondent is that the notice of appeal as presently drafted identifies only errors of law, or jurisdictional errors, but it is not entirely clear that what is sought is not a review of the evidential findings made by the Tribunal. 4. The notice of appeal relevantly for present purposes relies upon a failure on the part of the Tribunal to provide sufficient reasons for preferring the evidence of the mother to the evidence of the practitioner. It is said that she gave inconsistent accounts over time, whereas the practitioner, whose credibility was not effectively challenged in cross-examination, gave plausible denials. 5. It is difficult for this Court to assess the strength of the primary basis of the appeal for two reasons. Firstly, counsel for the practitioner noted that the transcript of the evidence is not presently available and it may be that the grounds of appeal will be varied to include challenges to findings of fact when that transcript becomes available. Secondly, it is of course not necessary for this Court to assess the likelihood of success on the appeal beyond noting whether the grounds currently before the Court are reasonably arguable or have some higher level of prospects of success. 6. I accept for present purposes the submissions for the Commission that there is little basis for confidence in the appellant's ability to succeed on the grounds as presently propounded. The appellant relies upon inconsistencies in statements made by the complainant as to what the practitioner in fact did in the course of the consultation on 21 December 2017. There were issues as to whether (i) he kissed her or whether he tried to kiss her; (ii) she referred to kissing, or an attempt to kiss, in contemporaneous complaints, and (iii) there were differing elements to the conduct complained of in a statement prepared by the complainant and again in her evidence-in-chief. 7. There is also said to be no lack of credibility in the practitioner's evidence and no clear indication, it is submitted, as to why, applying a comfortable satisfaction standard, the Tribunal preferred the evidence of the complainant to that of the practitioner. 8. I accept that there is a reasonably arguable case for challenging the findings made by the Tribunal on the basis that there is an absence of adequate explanation. I would not put it higher than that, and I am not sure whether what is relied on involves an error of law or whether it seeks a review as by way of rehearing with respect to the evidence. If it were necessary to be satisfied that there was more than a reasonably arguable case in favour of the appeal, then I would not make that finding. 9. On the other hand, although the evidence is somewhat muted as to what is to happen in the next three months, there is sufficient to suggest that there would be a significant disruption of the practitioner's appointments with children suffering a range of paediatric complaints in a busy practice. Three months of appointments would need to be cancelled and children with on-going issues would not be seen. It is said (without suggestion to the contrary) that the present waiting list to obtain an appointment with the practitioner is in the order of six months. 10. There is therefore an indication that there will be some harm to the availability of paediatric services in South West Sydney where the practitioner has his rooms if the suspension goes ahead in circumstances where it might ultimately be set aside. That is one factor to bear in mind. A second factor is that although in principle, as the respondent says, the order is not punitive but protective, it must be understood for whom it is protective. In effect the order is protective of patients who consult a medical practitioner. However, when those patients are children, and he, as I understand it, practises solely as a paediatrician, then the parents who bring the children fall within the scope of the protective purpose of the order. 11. To the extent that there was an incident, which has been found by the tribunal appointed for that purpose as having occurred, involving sexual impropriety towards the mother of one of the children, it is a matter of some seriousness. It is certainly a matter which would warrant disciplinary orders if those findings were upheld. It may be a matter which would warrant some order even if the precise nature of the complaint were not upheld. 12. However, the respondent did not lodge a complaint with the Tribunal until 26 August 2019, some 20 months after the sole incident. Further, the fact that the Tribunal was prepared to delay its three months' suspension (and there is no challenge to the severity of the order if the factual findings are upheld) for a period of 30 days, suggests that the Tribunal itself did not think that there was any immediate threat to the patients, whether they be children or parents of children, in the practitioner continuing to operate his practice for that period, although the Tribunal would no doubt have expected that the practice might have been closed, or at least operated on a limited basis, between mid-December and mid-January. 13. As the Commission accepts, the three months' suspension is likely to be completed before this Court would determine the appeal presently pending before it. While the appeal would not thereby become futile, because the practitioner has a lively interest in setting aside a finding of professional misconduct, if the appeal were upheld the period of the suspension would have been completed and therefore could not usefully be set aside. 14. In these circumstances I am prepared to stay the order of suspension to allow the Court to determine the appeal. In a matter such as this it is not necessary for the appellant to seek expedition. The matter will be dealt with expeditiously in any event, and I understand that steps are being taken to make sure that the matter proceeds as expeditiously as possible. Written submissions have been prepared. However, it is appropriate to condition the stay upon the continuation of steps being taken to expedite the hearing of the appeal. 15. I have in mind the observations by the appellant's counsel as to the need for a transcript; the failure so far to obtain a written transcript is a matter of some concern. I understand that the period during which the matter has been outstanding is one in which registries have been closed, but I do not think it appropriate that the seeking of a transcript should delay the hearing of the appeal. If it be necessary for the appellant to obtain a copy of the audio tapes and make his own transcript, then that should be done. 16. At the moment the notice of appeal is returnable in mid-February for directions. I would invite the parties, both of whom as I understand it would favour an early hearing, to confer as to appropriate directions to ensure that the matter is heard, preferably no later than the end of March if the Court listings can accommodate that timetable. So I propose to make orders granting a stay on the basis that both parties facilitate the expeditious hearing of the appeal and that they have leave to bring the matter back before the Court if difficulty is encountered in obtaining an early hearing for the appeal. 17. The Court makes the following orders: 1. Stay order 2 made by the Civil and Administrative Tribunal in relation to the practitioner on 15 December 2020 so that the suspension of three months does not commence until the determination of the appeal pending in this Court. 2. Direct that the parties liaise for the purpose of ensuring that the appeal is able to be listed and determined expeditiously and in that respect I note that I would expect it to be heard in the month of March. 3. Grant leave to either party on three days' notice to have the matter relisted before this Court for further directions in the event that any delay is anticipated. 4. Direct that the costs of the motion be costs in the appeal. ********** Amendments 13 January 2021 - Coversheet - amending name of counsel DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 January 2021