GEOFFREY WALTER EDELSTEN v HIS HONOUR JUDGE WARD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and CLARKE JJA 8, 9 December 1988, 9 December 1988 [1988] NSWCA 42 Medical practitioner — claim for interlocutory relief — stay of execution of orders by Medical Disciplinary Tribunal — no question of principle. ORDERS The application for interlocutory relief is dismissed; paragraph 2 of the summons is dismissed; the claimant is to pay the costs of these proceedings. Samuels JA This is a matter which has had a long history. On 1 October 1987 the Medical Board, established under the Medical Practitioners Amendment Act 1987, which had only just then come into force, appointed two doctors and a lay person to constitute a Medical Tribunal to hear an inquiry into various complaints of professional misconduct against Dr Geoffrey Edelsten. That inquiry proceeded for some considerable time and with a differently constituted Tribunal, for reasons to which I will come presently. Ultimately the Tribunal made findings adverse to Dr Edelsten. He then brought an appeal on matters of law to this Court, as the Amendment Act now permits. That appeal operated as a stay of any further proceedings before the Tribunal. This Court dismissed Dr Edelsten's appeal and remitted the matter to the Tribunal so that the Tribunal could determine what orders should be made. The Tribunal ordered in due course that Dr Edelsten's name should be removed from the register of medical practitioners. Today, this afternoon, Dr Edelsten will seek special leave to appeal to the High Court against the decision of this Court on appeal from the Tribunal. There is a stay of proceedings, that is, a stay of the Tribunal's order for deregistration, in operation until 6 pm today. Dr Edelsten has now moved this Court seeking an order of prohibition directed to the Tribunal, the Department of Health and the New South Wales Medical Board, and orders restraining the removal of his name from the register and other interlocutory relief. When the matter came on the Tribunal submitted to any order, save for costs, which the Court might make, as did the New South Wales Medical Board, although this morning they appear with representation reinforced and adopting a somewhat more threatening mien. The question which initially arose, having regard particularly to the fact that this application was to be made to the High Court today, was whether we would deal with the summons as on a final hearing or confine what was sought to interlocutory relief. The Court suggested to Mr Sweeney, leading counsel for Dr Edelsten, that we might deal with the whole matter, but he preferred to confine his application to one of interlocutory relief and ultimately that was the basis upon which the matter was heard. Another initial problem was to ascertain with some certainty the grounds upon which the application was made. The summons was singularly uninformative. Mr Sweeney opened various bases upon which relief was sought. Yesterday 2 UNREPORTED JUDGMENTS afternoon he indicated with greater precision what the case was to be and this morning provided us with an outline of the claimant's case, which will be placed with the papers. I need only say that for reasons which it is unnecessary to note specifically, paragraph 8(i) of that outline was withdrawn. Before dealing with the case that has been made it is necessary to go back and recite some history of the matter so far as it appears from the evidence. I have said that the Amendment Act came into force at the beginning of October and that at that time the Medical Board appointed a Tribunal which consisted of two doctors and a lay person. The evidence discloses that before proceedings opened on 12 October counsel for Dr Edelsten saw Judge Ward who was to preside and, following that meeting, the second of the two doctors was replaced by a subsequent appointment and the lay person disqualified himself and was also replaced by someone else in the same category. The first ground in the outline of the plaintiff's case is that the doctor who was replaced was not a fit and proper person for appointment to the Medical Tribunal, because he was a person who depended upon the Health Department for a favourable decision concerning whether or not he was to be prosecuted for a criminal offence or whether or not disciplinary proceedings should be taken against him; and that these facts were known to the Medical Board which ought therefore not to have appointed him. Further it is asserted that in those circumstances the appointment was made, or it may readily be inferred that it was made, in bad faith and not for the statutory purpose, but for some collateral and wrongful purpose. Hence, the argument runs, the appointment was void. However, since the person in question did not in fact sit, as I have said, it is necessary to carry the submission further in order to attack the constitution of the Tribunal which ultimately did sit to hear the complaints. It is submitted for that purpose that any Board, person or body of persons exercising a power of appointment of this kind which made the initial appointment, and thus acted in bad faith, more probably than not acted in bad faith in making the subsequent appointment. At least it may be inferred that it did. As an alternative to this submission it is contended that the appointment of the original member of the Tribunal followed by the subsequent appointment, would have raised in the minds of reasonable persons an apprehension of bias, that is to say, an apprehension that the Tribunal as ultimately constituted could not have brought an objective and unprejudiced mind to the hearing of the business before it. It will be seen that the first part of this case requires proof, or the interlocutory equivalent, of a number of e lements. The first is that the original member was not a fit and proper person for appointment, the second that the appointer, namely, the Medical Board, knew that fact, and the third that those circumstances give rise to an inference, or establish on the probabilities, that the appointment so made was made in bad faith. I will assume for the purposes of this judgment that the Medical Board knew that the original member was involved in a controversy to the extent that allegations had been made against him suggesting that he had as an administrative officer of a hospital made improper use of public funds. I will assume further - and I emphasise that this is again an assumption - that it was unwise for the Board to have appointed him to sit, having regard to the circumstances, current at the time, which I have shortly described. But then the third element is one which requires an inference to be drawn from the two assumptions that I have made, that the appointment was made in bad faith and, URJGEOFFREY WALTER EDELSTEN v HIS HONOUR JUDGE WARD (Samuels JA) 3 indeed, for the purpose of endeavouring to ensure an unfavourable result to Dr Edelsten in the proceedings which were about to be heard. In my opinion there is no evidence at all which establishes, or which is capable of giving rise to, an inference to that effect. There may well have been a number of reasons why the Medical Board appointed the person in question, notwithstanding the assumptions that I have made. I have formulated the matter so far on the footing of final proof. However, since we are dealing only with an application for interlocutory relief, it is sufficient, Mr Sweeney submits, if he shows that he has a reasonable prospect of success in the case he seeks to make, that is to say, has a reasonable prospect of establishing the elements which I have indicated. It may be, I must say, that he has adopted a test which is too stringent against himself. In Castlemaine Tooheys Ltd and Ors v The State of South Australia (1986) 161 CLR 148 Mr Justice Mason, then Acting Chief Justice, at pages 153 to 154 discussed the test to be derived from various cases and expressed the opinion that the correct test was that a claimant seeking interlocutory relief must establish that there was "a serious question to be tried". His Honour went on to point out, however, that it may be that in some cases where the public interest would be affected by the grant of an injunction "The plaintiff may need to show a probability, even a distinct probability, of success in order to obtain an interlocutory injunction." With respect, I propose to adopt that proposition. In my view the evidence before us falls far short of satisfying that test. It does not convey to me that there is a serious question to be tried so far as the issues to which I have referred relate. As I have said, I do not think it possible to conclude on the evidence so far presented that a serious question arises as to the question whether the appointment of the doctor to whom I had referred was activated by bad faith on the part of the appointing body. That being the case, it seems to me that the rest of the issues subsumed under ground | in the outline of the plaintiff's case fail also. However, let me say that even if I were satisfied that there was a case in support of the finding of bad faith in the first appointment, I am by no means satisfied that it could then be assumed that the subsequent appointment was made in the same fashion or was tainted by the same element. I think it unnecessary to discuss the state of the evidence at any length but it should be mentioned that the claimant's contentions require findings of the very greatest gravity against the honour of those who constituted the Medical Board at the time and in particular against Dr Amos, its President, who, pursuant to a delegation made by the Board, appointed the final Tribunal. The evidence does not establish a serious question as to the existence of such matters. The conclusion to which I have come also disposes of the suggestion of apprehension of bias and I do not think, as I have indicated, that an inference of bad faith is open, and that being so, there can be no apprehension of bias. The final matter, of an extremely technical kind which relates to the final appointment that was made, seems to me to be answered, as Mr Tobin QC suggested, by s52(1)(b) of the Interpretation Act 1987. There is a similar provision in the 1897 Act if the earlier Act is the governing provision. I might perhaps add this. It is strongly arguable, it seems to me, although it is not necessary to rely upon the point, that even if Dr Edelsten had been able to establish a case on the facts, the Court should have refused interlocutory relief in the exercise of its discretion. This might well have been done upon either of two 4 UNREPORTED JUDGMENTS possible bases. The first is that in October 1987, when the Tribunal's hearing opened, Dr Edelsten's legal advisers were aware of the matters upon which reliance is now placed but nonetheless went on, and on, because the inquiry lasted for quite a considerable time before the Tribunal, without taking any steps to challenge its constitution or the propriety of the appointment of its melers. The second is that, following what was said by Sir Anthony Mason in the decision to which I have referred, this is a case where the public interest is undoubtedly involved. As Mr Cassidy QC, the benefit of whose views we have had this morning, put to us, the Tribunal has ordered that Dr Edelsten's name be removed from the register and it is clear law that orders of that kind are made not for purposes of punishment but for purposes of protecting the public interest. The matter has proceeded for a very long time and it is only now that this application, on these grounds, has been made. On that ground also it might well have been that relief would have been refused even if a stronger case on the facts had been made. For those reasons in my opinion the claimant has failed to make out a case for interlocutory relief and the orders sought in paragraph 2 of the summons are refused. The claimant must pay the costs of these proceedings. Mahoney JA I agree with the judgment of Samuels JA. Having regard to some of the submissions made by Mr Sweeney and the tenacity with which he has pressed them, I shall add some observations of my own. The merits of Dr Edelsten's claim to remain on the roll have been the subject of long and detailed consideration. The hearing before the Medical Tribunal, as the Court has been informed on other occasions, extended over a period of some 36 days between 12 October 1987 and 27 April 1988. He was found to be a person not of good character and to have been guilty of misconduct in a professional respect in six identified respects. The matters were of such seriousness that the Tribunal ordered that his name be removed from the register and placed, as I may put it, an embargo upon his application for reinstatement for a period of ten years. The matter came to this Court on questions of law, those questions involving at least in some respects a reconsideration of the facts. When the matter originally came before this Court it was noted that no objection had been taken, or was then taken, to the constitution of the Tribunal or to the validity of the proceedings that had been taken before the Medical Tribunal. In that context there is now before this Court an application directed to quashing the orders which were made by the Medical Tribunal. What is now sought is a stay of the orders pending the determination of this present application. In order to consider whether such a stay should be granted it is relevant to have regard, amongst other things, to two matters, firstly the nature of the case which is sought to be made out and secondly whether as a matter of discretion it is proper to make such an order. The case that has been set forth has been described by Samuels JA and I do not recapitulate the detail of it. It has been put, as it now appears in writing this morning, on three main grounds. The first of them suggests serious misconduct either of a criminal or other serious nature by the members of the Medical Board and/or by the President of it, Dr Amos. The suggestion implicit in the submission has been outlined by Samuels JA and I need not adumbrate it. It is sufficient to say that, conscious that the evidence is not yet concluded and that it may be that further evidence will be brought on behalf of the plaintiff, to date there has been no basis whatsoever laid for the allegation. The seriousness of the allegation has URJGEOFFREY WALTER EDELSTEN v HIS HONOUR JUDGE WARD (Mahoney JA) 5 been underlined from time to time. As the matter stands at the moment, there is in my opinion serious doubt whether, on the evidence which is before the Court, that submission should be pressed. The second ground is one alleging a reasonable apprehension of bias in relation to all of the persons appointed to sit on the Medical Tribunal. That allegation depends to a substantial extent upon the correctness and validity of the first ground. In so far as it goes beyond that, it is proper to note that the persons who ultimately constituted the tribunal when it heard the charges against Dr Edelsten and who ultimately made the orders, did not include the person against whom suggestions have been made. The suggestion of bias is then further attenuated by the fact that those persons are not connected with the claims which have been made on behalf of Dr Edelsten in respect of the one person who was originally appointed to be a member of the Tribunal and who has been the subject of direct complaint by Dr Edelsten. I do not think that what has happened can raise any reasonable apprehension of bias. I am conscious in this regard also that the evidence is not closed; but upon the basis of the case as it has been adumbrated by Mr Sweeney on behalf of Dr Edelsten I see little, if any, prospect of that ground succeeding. The third ground is a technical ground going to the details of the method of the appointment of members of the Tribunal. Again I see nothing in that which leads to any prospect of success. It may be that further evidence will be put before the Court, and that must be borne in mind. But looking at the matter at the moment, I do not think that the case is apt to be made out. I come now to the question of discretion. I agree with what has been said by Samuels JA as to the nature of the discretion in this case. In the cases references have been made to matters such as whether there is a serious question to be tried or whether there is the appropriate likelihood of success in the particular proceedings It is not necessary to choose between these bases in this case because, on whatever basis the matter be dealt with, I do not think that the appropriate ground has been made out. I should add an additional matter. What is asked now is that the court should stay an order which, as I have indicated, has been made after a long and detailed hearing and goes to the desirability of the doctor in question practising his profession and providing medical services to members of the community. The application is made upon grounds which - I do not underestimate the importance of grounds such as the first or second ground - go essentially to technicalities and which do not touch the merits of the particular case. The Court is asked to allow a doctor, who has been found to be not of good character and to have been guilty of professional misconduct of the kind to which I have referred, to continue the practice of his profession pending the hearing of the present case, upon the basis that that case might succeed or that there is a serious question to be tried. For myself I do not think that, in the proper exercise of its discretion, the Court should allow a person so found to continue to practice during the pendency of such a case as the present. I think that is a matter to be taken into account in the exercise of any discretion in this matter. Iam conscious that if the first ground were made out it might go to the question of whether the decision on the merits was correctly given against Dr Edelsten. I have therefore referred to the first ground in the terms that I have, but if this matter is to be determined by the exercise of a discretion I would not grant the stay sought. I therefore agree with the orders proposed by Samuels JA. 6 UNREPORTED JUDGMENTS Clarke JA I agree with the judgment of Samuels JA. Samuels JA The orders of the Court are therefore that the application for interlocutory relief is dismissed; paragraph 2 of the summons is dismissed; the claimant, Dr Edelsten, is to pay the costs of these proceedings. I order that the matter go into the motion list on Monday for mention and I would be obliged if someone would let Mr Sweeney know. (Exhibits to be returned on the undertaking that they will be made available if required). (Mr Gormly addressed on his application to suppress the name of his client) Mr Gormly of counsel has appeared asking for an order to be made suppressing the name of a person who has been involved in the evidence led before the Court in this application. The ground put to us is that such an order is necessary in the interests of the administration of justice. I think that the reasons why we feel unable to accede to Mr Gormly's request sufficiently appear in what we have said during the course of the argument. This Court has more than once emphasised that it takes very seriously the requirement that courts should conduct their business openly and in the sight and hearing of the public. A suppression order which deprives the public of their right to know what is being done in the courts can therefore only be made when there is a countervailing interest of greater weight. That is normally said to be a public interest of a different kind, for example, in the protection of privacy or the maintenance of reputation. Unfortunately it happens from time to time that allegations against a person are aired in the course of a proceeding to which he or she is not a party. I can emphasise that in the present case, as I think our judgment will make clear, all that was led here was evidence of allegations against this person. There was no evidence that any of those allegations had been made out. However, although I can understand that even mention of matters of that kind is unfortunate, I do not think that this is a case in which an order suppressing the name can or should be made. Allegations of offences which lack evidence involve great danger to the media, as no doubt they are aware. So, Mr Gormly, for my part I think we must refuse your application. Mahoney JA I agree. Clarke JA I agree. Application for interlocutory relief dismissed. Paragraph 2 of the summons dismissed. Claimant to pay costs of proceedings.