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. I interpolate that we were told when the matter was previously argued before us that the learned Judge had decided that he would not distribute the material in question to his colleagues on the Tribunal until this court had determined the issue. We have now determined the matter; thus it may be that the material has been distributed - we do not know. On the other hand, the Judge may have decided to hold his hand until the hearing commences on Tuesday next, 13 August, which is the date fixed. This morning Mr Douglas of Queen's counsel with Mr Connor have appeared to seek a stay of the proceedings before the Medical Tribunal, that is to say, to seek from us an order staying those proceedings. The application is made upon two grounds First, upon the general ground that the matter presents questions of 2 UNREPORTED JUDGMENTS interest or of difficulty, that the Doctor proposes to apply for special leave to appeal to the High Court of Australia and that therefore the line should be held until he has had the opportunity of making that application. The second ground is that s32U of the Act applies so that, in any event, until the proceedings which might be taken in the High Court are concluded there is of necessity the equivalent of a stay by virtue of the provisions of subs6 of that section. So far as that second argument is concerned, it is our opinion that the section refers only to an appeal to this Court and does not comprehend an application for leave to appeal to the High Court. As to the general ground, it is true that following the statement of Brennan J in Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 684 this court has adopted the practice of ordering a stay rather than leaving it to a party to approach the High Court. This is of course in circumstances where the stay is sought to enable an application to the High Court to be made. Before Jennings it was generally the practice of this court to leave it to the High Court to decide whether or not a stay should be granted. However, as was pointed out in Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125, that practice would be pursued in this court only when it was considered here that a stay or an order of a similar kind was appropriate. Jennings is not to be regarded as a decision which facilitates the obtaining of stays in this court, that is to say, which enables a stay to be obtained in circumstances in which before Jennings it would have been refused. The effect of Jennings is merely that this court will no longer be deterred from making an order for a stay for reasons of delicacy and precedence, as it were. So far as the Merits of the application are concerned in the present case, these matters seem to us to be relevant. First, there is undoubtedly a strong public interest in the expeditious determination of proceedings of this kind. Indeed the Tribunal is enjoined to proceed with expedition, although the provisions of s32U are not necessarily conducive to that purpose. Secondly, there is some element of prematurity in the applications previously made to us, that is to say, in the appeal and the summons. As counsel agrees, the only potential detriment which has so far definitely accrued is the possibility that if the members of the Tribunal have seen the material their minds might have been adversely affected by it. Therefore that argument now has established premises if the basic assumption is justified. Furthermore, Judge Sinclair certainly has read the material, and it is contended that even in his case it might reasonably be thought that he might be unable to bring a detached and impartial attitude to the determination of the proceedings. But what must be borne in mind is that none of these points Will be lost once the proceedings commence. The apprehension of bias may be maintained, or indeed may be translated into a suggestion of actual bias. This does not seem to us to be a case in which, absent some stay or similar order, the Doctor will suffer some irreparable procedural or substantial prejudice. The question of what evidence is to be admitted has yet to be determined. As far as we can see, all the, arguments that were presented to us, or substantially all the arguments, remain for consideration with varying degrees of influence. All in all, we, do not consider, for those reasons, that this is a proper case in which we should direct the Tribunal not to commence its hearing on Tuesday, 13 August. Ladd that of course the application was a perfectly proper one and that it is still open, naturally, to the Doctor to mount an application to a Justice of the High Court of Australia. URJ BOWEN-JAMES v WALTON and ORS (Samuels JA) For those reasons we dismiss the motion with costs. Motion dismissed with costs.