RICHTER v WALTON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA 17 May 1993 [1993] NSWCA 234 Mahoney JA. This is an application in an appeal lodged by a doctor against an order that his name be removed from the Roll of Medical Practitioners and other orders made by the Medical Tribunal. The application before the court is an application for an order that the effect of, as I will describe it, the deregistration order be stayed pending a determination of the appeal. The application was put, and again I state the matter generally, upon the ground that the offence which was found against him was a single offence and, as it was described, a 'one-off' offence which was unlikely to be repeated. The doctor stated that pursuant to the stay arrangements made at the Tribunal special procedures have been set up in relation to the continuation of his practice which would ensure, it is suggested, that there be no repetition of the matters in question. Reference was made to medical treatment which the doctor is following relevant to the particular matter. I amstating these matters in general terms and I am not descending unnecessarily to particulars. When the application came before the court, Mr Sexton for the respondent tendered an affidavit to which were annexed notes of statements made by three people who have been patients of the doctor. The material consists of copies of notes made by an interviewer of statements made by those three patients. One of them, Mr Tobias says, is still a patient of the doctor. The statements which have been made, if they be evidence of the facts, and this of course is an interlocutory application, might provide the basis for inferences that the incident was not a 'one-off incident and therefore the basis on which the present application has been made would be affected. Mr Tobias indicates that his client contests the statements that have been made by way of hearsay in various ways. It is not necessary for me to detail these. He indicates that if the matters are pressed as the basis for the kind of inference to which I have referred, his client would want to contest the facts or have an opportunity to decide whether so to do. He became aware of the material, he informs the court, on Friday afternoon last. The matter is obviously of some importance to the doctor and to the continuation of his practice. If there is a dispute as to what has taken place in relation to the three ladies in question and the significance of it, then that dispute has to be determined even if it be only in the contextof an application for a stay of the kind now made. The truth of the matters, if they be pressed, would be relevant in determining whether a stay should be granted. Whether it would be determinative is another matter, but I do not think that the court can put aside the statements that have been made. If that be so, then Mr Tobias, who is obviously entitled to an opportunity to call evidence or otherwise deal with the allegations which have been made, has asked for an adjournment of two weeks for that purpose and that period of time has not been opposed. 2 UNREPORTED JUDGMENTS In the circumstances, I think it is appropriate that an adjournment of two weeks be granted. If the doctor desires to contest these matters or the significance of them as bases for inferences such as I have referred to, then he is entitled to do so. These matters are, as I have indicated, matters of importance to him. In the circumstances, I think it is appropriate to extend the stay granted by the Tribunal for a period of two weeks to cover the period of this adjournment. The stay should be on the same terms, that is, subject to the same arrangements as have previously been existing in relation to the previous stay. The costs of the adjournment today should be costs in the application for stay. I should add two further things. The first is that an order has been sought by Mr Tobias that the material in the affidavit produced this morning by Mr Sexton be not disclosed. I think it is clear that the names of the ladies should not bedisclosed. If I have the power to do so, and that matter has not been investigated, I direct that their names be not disclosed. In any event, I would indicate the view of the court that it would be contrary to public interest that those who may or may not be interested in reporting these matters should disclose the names. It would be unfortunate and distressful for the people concerned if the names were disclosed. The question whether the facts, if sought to be brought forward by the opponent, should be the subject of, as it was described, a suppression order raise different issues. The issue of the conduct of the doctor has been raised as a reason for and against the granting of the stay. If an order were to be made one way or the other it would be necessary to indicate why the stay was granted or refused. This, I think, would not be effectively and properly done without indicating the reasons why. I am at present not satisfied that an order for a stay should be made. However, this is a matter which can, if necessary, be taken up again at the adjourned hearing. The second matter to which I refer is this. As the matter has developed before me and as I have set it forth, it would appear that, for the purpose of dealing with a stay application, the correctness of the statements made by the three ladies, as I have referred to them, and the inferences to be drawn from them may be the subject of a contested hearing. That would be done merely on the stay application. If these matters are to be brought forward by the opponent inopposition to the appeal itself, then it will be necessary to determine, for the purposes of the appeal itself, how that can be done and whether it should be done and to what effect. One would then have a contest on this stay application of matters which on one view might go to the heart of the appeal and the orders to be made on appeal. It would be unfortunate if this matter had to be gone into twice and unnecessary time taken, costs incurred and no doubt distress caused to the doctor and to the other parties. It would appear that there ought to be another way of bridging the gap until the hearing of the appeal and, if necessary, the determination of these issues in the context of the appeal. I would commend to the parties the consideration of some working agreement in the meantime to ensure that the appeal is brought on without unnecessary delay and without the abrasion which these matters are apt to cause to the doctor and the people concerned can be avoided. However, I am not in a position to make any order in relation to that matter at the present time and I do not do so. URJ RICHTER v WALTON (Mahoney JA) 3 The order I make is that the application stand over for two weeks and the costs of today be costs in the application. The stay is to be continued on the same terms as before. 5 Orders accordingly.