MACARTHUR v WALTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL JA 25 January 1995, 25 January 1995 [1995] NSWCA 263 APPEAL AND NEW TRIAL — Orders of Medical Tribunal — Appeal against — Application for stay pending appeal. MEDICAL PRACTITIONERS — Misconduct, unfitness and discipline — Medical Tribunal orders for suspension from practice and revoking earlier non-publication order — Appeal from order for suspension — Application for stay of operation of orders pending appeal. Powell JA By Notice of Motion filed, by leave, this day, the Claimant, who is the Appellant in what is, in substance, an appeal from a decision of the Medical Tribunal ("the Tribunal") delivered, and Orders made by the Tribunal, on 19th January of this year, seeks, in substance, Orders, first, staying the Order of the Tribunal suspending the Claimant from the practice of medicine for a period of 6 months and placing a condition on the Claimant's registration as a medical practitioner thereafter; and, second, either, an Order staying the operation of the Order of the Tribunal revoking an earlier non-publication Order made in the principal proceedings, or, if there be no power to make such an Order, an Order by this Court prohibiting publication of the proceedings before the Tribunal and its findings, and the names of the Claimant and of those of the Claimant's patients who were associated with those proceedings. The proceedings before the Tribunal apparently arose out of complaints made to, either, the relevant local Health Service ("the Health Service"), or, the Medical Board ("the Board") by members of the hospital staff of one of the hospitals at which the Claimant was, and is, a visiting medical specialist, those complaints being to the effect that, on each of two nominated days, the Claimant, having performed surgery within his specialty, and while then assisting in the procedure of moving the anaesthetised patient from the operating table to the transfer trolley, touched the patient in question - each such patient being a female patient - in an inappropriate manner in an area described generally as "the pubic area". As the result of the complaints which were made by the members of the hospital staff, a variety of actions appear to have been taken by various people or bodies: first, so it would appear the Health Service resolved to terminate forthwith the clinical privileges to which, as a visiting medical specialist at the hospital concerned, the Claimant was entitled at that hospital; second, complaints, if first made to the Health Service, were then made to the Board; and third, following investigations made by the Police, the Claimant was charged with several counts of aggravated indecent assault, in respect of which charges he was later committed for trial. 2 UNREPORTED JUDGMENTS It would appear that, following an appeal by the Claimant, a committee of review appointed by the Minister of Health ordered that, subject to the Claimant giving certain undertakings which are recorded in its report to the Minister, the Claimant be allowed to continue to enjoy his clinical privileges. Following upon its receipt of the formal complaint, the Board, in its turn lodged a formal complaint with the Tribunal. That complaint appears, in the first instance, to have come before the then Chairperson of the Tribunal on Ist July last, at which time, as it would seem, the then Chairperson made, until further order, the non- publication Order to which I have earlier referred. Thereafter the then Chairperson appointed Cooper DCJ, one of the Deputy Chairpersons of the Tribunal, to preside on the inquiry into the complaint and the Board nominated two medical practitioners and the usual lay member to sit with Cooper DCJ as members of the Tribunal for the purposes of the inquiry. As I have earlier noted, the Claimant has been committed for trial at the District Court in the relevant circuit town, it being thought, at the present stage, that he will be formally arraigned before a Judge of the Court during the course of February next, albeit that it is not anticipated that his trial on the indictment later to be presented will occur before October, or even later, this year. In accordance with what seems now to be a common, if not the usual, practice, the Tribunal constituted for the purpose of the inquiry into the complaint appears first to have proceeded to examine whether or not the complaints which were made to it were in fact made out on the evidence. In its Reasons for Decision, on this aspect of the inquiry, which were delivered on 9th December 1994, the Tribunal concluded that, on each of the two occasions to which I have earlier referred, the incidents complained of did take place, but that, in respect of another incident of which complaint had been made, there was nothing inappropriate in what was done. Thereafter, the Tribunal invited submissions as to what, if any orders, of a disciplinary nature might be called for in the circumstances. Although the Orders made by the Tribunal following those submissions, which Orders as I have earlier noted were made on 19th January of this year, are those which give to the present application, the concern of the Claimant's advisers as to the time within which an appeal might be lodged led them to lodge the Notice of Appeal to which I have earlier referred meantime. As might be expected, the Notice of Appeal having been lodged prior to the making of those Orders, the Notice of Appeal requires some amendment - one adds that, unless some more substantial grounds of appeal than those set out in the existing Notice of Appeal are to be relied upon, the Claimant's prospects of success on the hearing of the Appeal would not be great. The Orders made by the Tribunal were, first, that the Claimant be suspended from practising medicine for a period of 6 months; second, that there be imposed on the Claimant's registration a condition relating to his not participating in the transfer of patients from the operating table to the transfer trolley; third, that all prior non-publication orders be revoked; fourth, that the names of the patients and parents and other material by which they could be identified not be published; and, after submissions made following delivery of the Tribunal's Reasons for Consequential Orders, that there be, in effect, a stay of operation of the principal Orders until 5.00 pm on Friday next, 27th January 1995. In seeking to support the first of the Orders which the Claimant seeks in his Notice of Motion, Mr RJ Burbidge QC, who appears with Mr FC Corsaro for the Claimant, has put that, notwithstanding the form of the grounds of appeal taken URJ MACARTHUR v WALTON (Powell JA) 3 in the Notice of Appeal, the appeal is one which is of substance, and one which involves a serious question of law. In seeking to develop this submission, Mr Burbidge submitted that, in applying, as it did, the standard of proof discussed in the decision of the High Court in Briginshaw v Briginshaw!; and Rejfek v Elroy?, the Tribunal erred. Mr Burbidge accepts that, in order that that proposed ground of appeal be regarded as one of substance, the Claimant will need to persuade this Court that leave to reargue the recent decision of this Court in Bannister v Walton} ought to be granted, but he submits that, despite the fact that the High Court refused special leave to appeal from this Court's decision in Bannister v Walton', such leave ought to be granted having regard to the recently expressed view of the Supreme Court of South Australia (T v Medical Board of South Australia5) that the appropriate standard of proof to be applied in medical disciplinary matters is "the criminal standard", which view so it is said - although my understanding is to the contrary - was not drawn to the attention of the High Court on the application for leave to appeal from the decision of this Court in Bannister v Walton'. Other grounds of appeal have been foreshadowed, it being sufficient to note that one is to the effect that, upon a proper analysis of the evidence placed before the Tribunal, it could properly be said that there was no evidence before the Tribunal upon which it might found its principal findings of fact. In these circumstances, so Mr Burbidge submitted, a stay of the operation of the Order for suspension was warranted, for, unless - which given the extent of the present demands upon the Courts' time, is highly unlikely - the appeal could be brought on in the very near future the Claimant's right of appeal will, in fact, prove to have been of no value, as the period of suspension might well have expired before the appeal is disposed of. In seeking to support the application for a stay of the operation of the order revoking the non-publication Order, Mr Burbidge submitted that publication of the Reasons for Decision of the Tribunal would have a serious impact upon the Claimant, first, by seriously damaging his professional reputation and, more importantly, by possibly leading to an injustice to him in relation to his impending trial in the District Court, without, so it was submitted, any countervailing advantage to the public in the particular area in which the Claimant practices, and all this notwithstanding that the appeal may ultimately be upheld. The Opponent opposes the making of either of the Orders sought upon the grounds, first, that the appeal is without substance, in that there is no real ground of law upon which an attack on the findings of the Tribunal can be mounted; and, second, that, there having been a full examination by the Tribunal, and a determination by it of the complaints, no ground has been made out for the continuation of a non-publication order, but, on the contrary, the public interest dictates that the findings of the Tribunal now be made public. - (1938) 60 CLR 336 . (1965) 112 CLR 517 - (1992) 30 NSWLR 699 . (supra) . (1992) 58 SASR 382 . (supra) DAnhRwWNE 4 UNREPORTED JUDGMENTS The principles to be applied in relation to applications such as that which I am now concerned to deal have been examined in two fairly recent decisions, the first being that of Mahoney JA sitting alone in Katelaris v Walton', the second an interlocutory decision of the Court Mahoney, Sheller, and Cripps JJA in Bannister v Walton'. Despite the fact that the judgments to which I have just referred would indicate that the granting of such a stay is anything but a matter as of course in matters such as this, I am disposed to think that it is an appropriate case in which a stay ought to be granted, at least in relation to the Claimant's suspension from practice, What disposes me to that view is, not so much the strength of the appeal - for, as I have earlier indicated, it seems to me that the Claimant faces considerable difficulty in that regard - but the fact that, having regard to the existing commitments of the Court of which I am presently aware, it is unlikely that, even if it were expedited, the appeal could be brought on, and determined, before a significant part, if not the whole, of the period of suspension would have expired if no stay be granted. This being so, so it seems to me, it is appropriate to grant a stay since the Claimant's right of appeal would otherwise be of no value to him. I turn, then, to the question of the non-publication order. Ican well understand the Claimant's concern that, if the non- publication order not be continued, his reputation may well be damaged, even if, as he would have it, he is to succeed in his appeal, as also can I understand the concern of the Claimant that, if the reasons for decision of the Tribunal now be published, it is at least possible that his pending trial in the District Court could be prejudiced. However, it seems to me that, on balance, the non-publication order ought not to be continued. The Claimant's concern as to the possible effect which publication may have upon his reputation, can, I think, properly be, at least met, if not overcome, by the Claimant making it abundantly clear, in the event that publicity is given to the Tribunal's Reasons for Decision, that he has already lodged, and proposes vigorously to prosecute, the appeal in regard to the findings and Orders which have been made against him. The Claimant's concern as to the possible effect of publicity on his trial is, as it seems to me, readily met by the fact that there are procedures which are available to the Claimant, and also in the District Court, which can, as it seems to me, ensure that the Claimant is not to be prejudiced in his trial. Thus, it could be that, on his being arraigned in the near future, the Claimant could apply for a change of venue to a Court sufficiently distant from the circuit town in which he has been committed to stand trial in the first instance. Further, as it seems to me, it could be open to the Court to adjourn, or to postpone, the trial until such time as any publicity might be dissipated, and, indeed, until such time as the Claimant, if he is to succeed in his appeal, has available to him the advantage of a decision of this Court on the appeal. As the Claimant's concerns can, in my view, be met in the ways which I have indicated, it seems to me that the public is now entitled to know that the complaints were made and have been examined, and that a determination has been made in respect of them, so that the members of the public who might 7. 18th April 1991 (unreported) 8. 30th April 1992 (unreported) URJ MACARTHUR v WALTON (Powell JA) 5 otherwise be concerned to consult, or otherwise seek the assistance of, the Claimant are able to decide for themselves on the question whether or not they wish to do so. In the result, subject to the giving of the undertakings to which I will shortly refer, I would propose to stay so much of the Orders of the Tribunal as would suspend the Claimant from practice. The undertakings to which I refer are, first, an undertaking in terms of the condition which the Tribunal has directed should be imposed on the claimant's right to practise in future, that undertaking being given, without admission; and, second, an undertaking that the Claimant will seek an Order that the appeal in this matter be expedited, and in the event of that Order being granted, that the Claimant will take all such steps as might be necessary, or reasonable, to be taken in order that the appeal be brought on for hearing at the earliest convenient date. Having regard to the fact that each of the Complainant and the Opponent has been partially successful,the costs of the application should be costs in the appeal. Subject to those undertakings being given the formal Orders which I would make are: 1. ORDER that so much of the Order of the Tribunal made 19th January 1995 as would suspend the Claimant from the practice of medicine for 6 months be stayed until the determination of the appeal; and 2. ORDER that the costs of today's application be costs in the appeal. MR CORSARO: Would your Honour please note that I have instructions to give those undertakings. HIS HONOUR It being noted that the Claimant, by his counsel, and without admission as to the first, gives the several undertakings which I have indicated, I now formally make the Orders which I foreshadowed. Footnote: After this Judgment was delivered, the Court delivered its Judgment in Arvind v Walton (21st February 1995), in which Judgment the Court (inter alia) declined to review the Judgment in Bannister v Walton ((1992) 30 NSWLR 699), and confirmed that the standard of proof to be applied in medical disciplinary matters is the civil standard. Counsel for the Claimant: RJ Burbidge QC and FC Corsaro Instructed by: Edson Harlan Pike (Crows Nest) Counsel for the Opponent: J Basten QC Instructed by: DM Swain