LEICESTER v WALTON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 23 October 1995 [1995] NSWCA 257 Priestley JA. The Court has set down for hearing an appeal by the opponent in the Motion today against an order made by the Medical Tribunal suspending him from practice for a period. On an earlier Motion, the President granted a stay of the suspension until the determination of the hearing of the appeal. On that application, some reference was made to a further complaint having been lodged against the opponent. The application today is by the claimant for leave to adduce fresh evidence at the hearing of the appeal. That fresh evidence concerns the further complaint which was mentioned at the earlier proceedings before the President. Upon the matter coming on for hearing this morning, the claimant asked that the decision whether the further evidence could be adduced in the appeal be stood over for hearing for determination when the appeal comes on for hearing. That would leave the decision to be made by three Judges. That seems to me to be the preferable course in the circumstances which now obtain. One of the circumstances is that it seems to me that probably the betterdecision on the question whether the further evidence should be heard in the appeal is that it should be. I am not by any means certain however that a Full Court, consisting of three Judges, on the hearing of the appeal would necessarily agree with this opinion of mine, if I were to make the order today. The application to stand the matter over to the hearing of the appeal was opposed by the opponent appellant on several bases which have some merit. One is that the appellant had been brought here today, ready to argue the matter and wanted it disposed of. Another was that the subject matter of the complaint should preferably be dealt with in accordance with the provisions of the relevant act and dealt with by the Tribunal before it became part of any proceedings in this Court. Although I see some merit in this stand taken by the opponent, the nature of the complaint, although in some ways different from the complaints with which the Tribunal has already dealt, is also in some ways relevant to the opponent's professional competence not unassociated with the areas of the complaints which have already been dealt with by the Tribunal. The Tribunal's decision was made on the basis of public interest in competence of medical practitioners. That same interest is raised by this further ground. One matter influencing me in thinking that it ought to be dealt with on the appeal is that the sooner these matters are cleared up, the better, both from the point of view of the public and the practitioner himself. But as I have said earlier, realising that my opinion might not be shared by the Court which hears the appeal, and in view of the closeness of that appeal, it seems to me to be better to leave the matter to be dealt with on the commencement of the appeal. 2 UNREPORTED JUDGMENTS Some question was raised of the possible lengthening of the appeal as a result. I won't make any directions but it seems to me to be in the interests of both the claimant and the point if any evidence is proposed to be called bythe appellant opponent in the event that the full Court allows the evidence to be adduced, then that should be filed on affidavit at least a week before the hearing of the appeal. The orders that I will make are to stand over the decision of the application concerning the adducing of further evidence to the hearing of the appeal. This leaves the question of costs. It does not seem to me to be right that the appellant opponent should have to bear the costs of today in any event. Particularly if the Full Court should be of the opinion that the evidence should not be adduced, I would think that the costs of today ought to be included in any costs of the dismissal of the Motion. On the other hand, if the Motion succeeds and the appeal should be dismissed, I would think that the appellant opponent ought not to receive the costs of today. I think this means that the order that I should make about costs is that the costs of today should be the opponent's costs of the Motion. In case that does not work out accurately technically, I will make it clear that what I have in mind is that if the Motion to adduce the further evidence is dismissed, there should be no order of the costs of today. I realise, as I try to work this out, that the order that I would make concerning costs, bearing in mind the considerations I have mentioned, is that there be no order as to the costs of today so that the costs lie where they fall for today and the principal costs of the Motion will be determined by the fate of the Motion, excluding the costs of today. Matter stood over for the hearing of the appeal. Orders accordingly.