BOWEN-JAMES v WALTON and ORS [1991] NSWCA 30

BOWEN-JAMES v WALTON and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MEAGHER and HANDLEY JJA 7 August 1991

[1991] NSWCA 30

Samuels JA On Monday last, 5 August, this court, as now constituted, gave its reasons for dismissing an appeal and a summons brought by the Doctor for the purpose of challenging certain procedural directions given by Judge Sinclair sitting as a Deputy Chairperson of the Medical Tribunal.

The grounds of those applications, if I may compendiously include both proceedings within that word, are fully set out in our reasons for judgment and it is unnecessary for us to recite them again. However, it is probably necessary to say that the contest concerns orders made by Judge Sinclair requiring the parties, that is to say, the delegate of the Director-General and the Doctor, to exchange statements of the evidence which the principal actors and their witnesses proposed to offer to the Tribunal.

The objection taken to this course on behalf of the Doctor fell principally into two categories. First, it was suggested - and it may be assumed that this is perfectly correct - that the statements filed by the delegate contained material which was not legally admissible. The argument was then that this material, notwithstanding the provisions of cll of schedule 4 to the Act, ought not to be led because to do so would offend the rules of natural justice, that is, would be inconsistent with procedural fairness; and that, in any event, the Judge himself and the members of the Tribunal, if they read that material., might appear to reasonable persons knowing the contents of the statements unable to bring to the resolution of the matter the detached and objective attitude which was required.

Secondly, it was put that there were in a disciplinary matter of this sort overtones of criminal justice so as to confer upon the Doctor privileges akin to the right to silence or the privilege against self-incrimination. These privileges would be prejudiced or offended by the Doctor's having to provide statements of evidence. Further, if the statements tendered on behalf of the delegate were to stand as the witnesses' evidence-in-chief, the Doctor's advisers would be deprived of the opportunity to examine the demeanour of those witnesses displayed while they gave their evidence-in-chief, and prior to cross-examination.