IN RELATION TO THE MEDICAL TRIBUNAL OF NEW SOUTH WALES HEARING CONCERNING DR IBRAHIM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 30 January 1991 [1991] NSWCA 153 Mahoney JA This matter comes before the court on an oral application in the following circumstances: I am informed by Miss Bergin who appears for the applicant, that a proceeding is presently pending before the Medical Tribunal of New South Wales in respect of her client who is a medical practitioner. I am informed that an application was made to the Tribunal for the proceedings to be adjourned or stayed temporarily because there are, it is said, criminal proceedings in respect of the same matter, the same circumstances, pending before a criminal court. On inquiry I was informed that the criminal proceedings consist of committal proceedings which apparently have been commenced and are fixed for hearing at a date some little time in the future. The submission has been made that (I put the matter generally) the proceedings before the Medical Tribunal should not proceed until the criminal proceedings are dealt with upon, as I would describe the matter compendiously, natural justice grounds. The Tribunal has, I am informed, been disposed not to accede to that application and indicated that it would proceed with the matter. The view has been taken on behalf of the doctor, that this action of the Tribunal constitutes a "decision of the Tribunal" under s32U(1) of the Medical Practitioners' Act 1938 as it presently stands and that an appeal lies against that decision to the Supreme court in accordance with s32U. The contention has been that once an appeal is brought in respect of that decision "in respect to a point of law", then s32U(6)(a) operates by force of the Statute to require that the Tribunal not continue until the appeal to the Supreme Court has been disposed of. Whether the decision in question, which I shall call compendiously a decision not to grant the adjournment or stay sought, is a decision within s32(1)(a), is a matter which will require argument. Miss Bergin has pointed out considerations which may suggest that there may be a decision within that section notwithstanding that it is not a final decision of the Tribunal, but merely an interlocutory decision. It may be necessary to argue the question whether the determination, as I shall describe it, of the Tribunal to proceed is in fact a decision whether final or interlocutory within that section. This is a matter on which I express of course no opinion at this stage. The application to this Court was foreshadowed this afternoon. The court at 3.45 pm undertook to hear the application. The matter is being dealt with without affidavit and in the circumstances upon the statements made by counsel from the bar table. The application has been that a stay of the proceeding before the Tribunal should be ordered by this Court; at least that was as I understand it the application to be made. Miss Bergin has now informed the court that as a result of what has happened, the Tribunal has indicated that if an appeal is lodged first thing tomorrow morning, then the Tribunal will take the view that there is a stay granted under s32U of the proceedings before it. I may perhaps be overstating the 2 UNREPORTED JUDGMENTS view indicated by the Tribunal, but at least that is a matter which can be dealt with before the Tribunal once the appeal has been lodged. It has been indicated to me that an appeal under s32U will be lodged as soon as the court office permits tomorrow morning. In these circumstances, it has been properly said that no order is necessary from this Court. The assumption is that once the appeal is filed tomorrow morning, there will be at least an arguable case that there is a statutory stay of the proceedings before the Tribunal under s32U(6) and therefore no order from this Court is required. I interpolate that in discussion between the bench and bar in relation to the matter, reference was made to the proceedings in other cases which have come before this Court, for example Edelsten v Richmond (1987) 11 NSWLR 51, in which the basis of jurisdiction of this Court has been considered. It may be that proceedings before this Court to stay proceedings before the Tribunal because of pending criminal proceedings would properly be based upon the prerogative jurisdiction of this Court to stay proceedings before the Tribunal which would constitute a denial of natural justice. That is not a matter upon which it is necessary for me to express any opinion, but I note the matter in case the matter arises for argument before this Court or before the Tribunal. The position then being that no order need be obtained from this Court in relation to the staying of proceedings before the Tribunal, two other matters arose. Miss Bergin indicated the desirability from the point of view of her client that the name of her client not be published. It is obvious of course that embarrassment or more can be caused by the publication of the name of a party (and a fortiori an innocent party, if such be shown to be the case ultimately in relation to proceedings before the Tribunal) particularly in relation to proceedings which are of, as the court has been informed in the present case, a sexual nature, that is proceedings in which the allegation is that the offence involved sexual impropriety. I am conscious of the damage which can be done or may be done to a party, a fortiori an innocent party, in these circumstances. Miss Bergin has therefore sought an order from this Court that the name of the party involved in the present application be not published. She has fairly indicated that in other proceedings before the Medical Tribunal orders have been made at least for a limited period in cases of this kind, but she has also fairly indicated that she is not certain, I put the matter no higher, that an application to the Tribunal in this case would produce an order that the identity of the doctor in question not be revealed. The position then is that application may be made to the Tribunal and the Tribunal, having cognizance of the facts in a depth which I cannot assay at the moment, may in those circumstances make an order that the name of the doctor be not revealed either permanently or for a particular period. It would therefore be quite unfortunate and might cause a significant injustice if, because the application in the present case is made in open court, the name of the doctor were published in any event. I mean by this, for example, that if the circumstances are such that the Tribunal would make an order suppressing the name of the doctor and the doctor ultimately is found to be innocent, then it would be quite unfortunate if the name of the doctor were now published merely because an application had been made at the present time. It is in these circumstances that Miss Bergin has asked for an order from this Court that the name of the doctor be not published. I shall assume without deciding that the court has a technical jurisdiction to make such an order. It may be that, upon the undertaking of counsel to file an appeal by tomorrow morning, UWRJRELATION TO THE MEDICAL TRIBUNAL OF NEW SOUTH WALES HEARING CONCERNING DR IBRAHIM (Mahoney JA) the court would have jurisdiction to make an order which would prevent the frustration of the appeal at least in this regard or otherwise the doing of irreparable damage to the party involved. I shall assume that for present purposes without so deciding. However, the difficulty I feel in relation to the matter is that the making of a suppression order is a serious matter. The court has considered in other contexts the circumstances in which orders for confidentiality and the like will be enforced. The decision of this Court in the Alexander case illustrates in analogous circumstances or circumstances having some similarity to the present the basis on which the court will approach these matters: see Alexander vy Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685. However that be, and speaking in the context of this present matter, I would regard the making of a suppression order, as it has been described, as a matter of considerable seriousness and before being convinced that such a formal order should be made, I would need to know a good deal more about the case than is known at the present. In the circumstances, as I have indicated during argument, as a matter of discretion and as the matter stands before me at the moment, I decline to exercise my discretion to make such an order. There are parties in court; the court is open. I can say no more than it would be quite unfortunate and might well cause a significant injustice if because of the accidental circumstances of the present case and before an application were made and determined on its merits before the Tribunal, publication of the name of the doctor were made. However, this is a matter which I do not make the subject of an order and leave to the good sense and sense of justice of the parties concerned. The second matter to which reference has been made is the matter of costs. Application has been made by Mr Buchanan that the costs of today be treated as costs in the appeal. Miss Bergin has raised no objection to that and has acceded to the court making some such order in the circumstances. It would be sensible so to do and upon this basis I would order that, it being contemplated by counsel that an appeal will be filed as I have indicated seeking to invoke s32U, the costs of today be treated as costs in the particular appeal. BERGIN: When I referred to Edelsten v Richmond the basis of the appeal which has also been notified to the Tribunal this afternoon would include an alternative that if 32U is not available, then the general powers of natural justice would apply. HIS HONOUR: I had hoped by referring to, by incorporating those matters, that the Tribunal would understand that you were appealing under 32U. One would not be surprised if on a belt and braces principle you also brought a proceeding by way of summons to invoke the natural justice matter. BERGIN: I had informed his Honour of that.