TAYLOR v THE HEALTH CARE COMPLAINTS COMMISSION OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, CLARKE AJ and SIMos AJA 2 December 1996, 2 December 1996 [1996] NSWCA 518 PRACTICE AND PROCEDURE — Court of Appeal — Whether appeal competent Medical Practice Act 1992, s87, s90. Mahoney P This matter comes before the Court under s46 of the Supreme Court Act 1970. On 13 September 1996 his Honour Mr Justice Sheller made an order dismissing Appeal No 40476 of 1996 as incompetent. Provision is made in s46 for a matter dealt with by a single Judge of Appeal to come before this Court. The terms of the section were reviewed in a matter of Wentworth v Wentworth (1994) 35 NSWLR 726. It is not necessary for this Court to consider the terms of s46. Whether the matter was originally properly before his Honour or should have come originally before this Court need not be determined. The matter is now before this Court either as on its own final jurisdiction or as the result of a review under s46 and, having regard to the circumstances of this case, the matter may be dealt with accordingly. I shall, in favour of the appellant, deal with the matter on its merits. The present matter arises from a series of proceedings taken under the Medical Practice Act 1992. In order to understand what has been done and the nature of the appeal which by his Honour's order was dismissed, it is necessary to refer briefly to the factual background. The doctor in question graduated in medicine in Queensland in 1989. She is also a graduate in law. She was registered as a medical practitioner in various States: in this State on 20 July 1993. In July 1993 she commenced employment as a resident medical officer at a hospital on the outskirts of Sydney and while she was so employed she was referred to an impaired registrant's panel under s72 of the Medical Practice Act 1992. The panel considered her condition and recommended the imposition upon her registration of a condition that she work only in a supervised position. The doctor declined to consent to that condition and in due course a complaint against her was lodged with the New South Wales Medical Board in accordance with s82 or otherwise under the Act. It is not necessary for me to detail the nature of the complaint; it is referred to in the decision of the Medical Tribunal of New South Wales of 21 June 1996. That complaint having been lodged, it was dealt with by a Professional Standards Committee in late December 1994 and February 1995. That Committee found that the first complaint that had been made had been established and that the second complaint also was made out: it was not necessary for it to deal with the third complaint. On 22 March 1995 the Committee, apparently pursuant to s63 of the Act, recommended to the Chairman of the Medical Tribunal of New South Wales that the appellant's name be removed from the register because of her lack of sufficient physical and mental capacity to practice medicine. On 16 June 1995 the Chairman of the Tribunal his Honour Mr Justice Blanch made an order accordingly. 2 UNREPORTED JUDGMENTS The doctor then lodged with the registry under the Act a document which was expressed to be, as I understand it, a notice of appeal under s87 of the Act and an application for review under s92. In so far as it was an application for review, it has been said, as I understand the submissions from the bar table, that that was disposed of in another way. The matter that came before the Tribunal was presumably an appeal pursuant to s87 of the Act. S87 of the Act provides that a medical practitioner about whom a complaint is referred to a Committee or the complainant may appeal to the Tribunal against a finding of the Committee or the exercise by the Chairperson or Deputy Chairperson of the Tribunal of any power under the relevant Division, that is Pt4 of Division 4. Provision is there made for the appeal to be dealt with by way of rehearing. It is presumably that appeal which came before a Medical Tribunal of which his Honour Judge Bell was the Chairman. On 21 June 1996 that Tribunal made orders which I will summarise as follows. The Tribunal ordered that the doctor be reinstated but that her registration be subject to the following conditions: (1) that she will not undertake the clinical care of patients; (2) that she undertake only employment approved by the Medical Board; (3) that she consult within six months of registration and thereafter at six monthly intervals a psychiatrist appointed by the Board; (4) that in the event of her consulting a psychiatrist other than the Board appointed psychiatrist referred to in condition (2) she forthwith advise the Board in writing of the details of that psychiatrist; and (5) that the conditions not be reviewed within three years of that date. The doctor was not disposed to accept that decision and lodged a notice of appeal to this Court. The issue which came before Sheller JA was whether the notice of appeal which was lodged, being a notice of appeal against the orders of the Tribunal of which his Honour Judge Bell was the Chairman, was a competent appeal. I put aside the question of extension of time. There was before his Honour an application for an extension of time to lodge that appeal if it was competent. His Honour in the circumstances did not have to deal with that matter as a matter of substance. In fact because of his conclusions as to the lack of competence of the appeal he dismissed it. The Judge in his judgment having reviewed the provisions of the Medical Practice Act came to the conclusion that the appeal which had been lodged was not competent. His Honour came to that view because of the provisions of s90. S90 of the Act, as far as is here relevant, provides as follows: "90 (1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against: (a) a decision of the Tribunal with respect of a point of law; or (b) the exercise of any power by the Tribunal under Division 4 (Disciplinary powers of Committees and Tribunal) of Pt4." The provisions of s90(1)(b) are not here relevant: the matter turns upon the effect of s90(1)(a). His Honour came to the conclusion that the right of appeal to the Supreme Court given by that provision was a limited right of appeal only. It was, his Honour concluded, a right such that the person about whom a complaint had been made could appeal to this Court within s90(1)(a) only where the person was a person "about whom a complaint is referred to the Tribunal". His Honour concluded that the right of appeal was not given to a person whose grievance (I URAYLOR v THE HEALTH CARE COMPLAINTS COMMISSION OF NEW SOUTH WALES (Mahoney P) use a general term) had come before the Tribunal in some other way. The question for determination before this Court is, and in the end is only, whether that reading of s90(1) is correct. In my opinion it is. I agree with the conclusion to which Sheller JA came and generally with his reasoning. It is not necessary for present purposes to examine in detail the structure of the legislation in this regard. The structure of the legislation is, to say the least, not uncomplicated. But there is an apparent difference in the legislation between a proceeding (I again use a general term) which comes before the Tribunal by way of the reference of a complaint and one which comes before the Tribunal otherwise, for example by way of appeal pursuant to s87(1). In s52 of the Act, provision is made for the reference of a complaint to the Tribunal by the Board or by the Commission there referred to, and that method of coming before the Tribunal, that is by way of reference, finds analogues in various parts of the legislation. Reference is made in the legislation to a complaint proceeding by way of appeal. But, as I have said, there is a distinction evident in the drafting of the legislation between matters coming to the Tribunal upon a reference (for example, being referred to the Tribunal as in s52(1)) and coming to the Tribunal in other ways. It is not necessary for me to attempt to deal exhaustively with the relevant provisions. But two matters may be referred to. First, in the provisions of Schedule 2 cl5, reference is made to the situation which no doubt is apt to arise from time to time in the practical working of the Act when, during the course of a proceeding before a Committee or a Tribunal, the facts disclose that the complaint as drawn and by reference to which the proceedings are being taken, does not exactly cover the facts which emerge in the hearing. In those circumstances, provision is made for the facts to be treated (I put the matter broadly and somewhat inaccurately) as a separate complaint. Thus in cl5(2) reference is made to the complaint deemed to have been made and the power is given to the Committee or the Tribunal to "take that other complaint to have been referred to it". Reference is made also in s87(3) to an appeal which is lodged with the Medical Tribunal. That subsection provides that the appeal when lodged is to be dealt with by the Registrar "who is to refer it to the Tribunal". The use of the term "refer" may perhaps be thought to indicate that the reference to "refer" to the Tribunal in s90(1) should be given a wider and perhaps special meaning. But an examination of s87(3) indicates that what is there referred to is the appeal, whereas what is referred to in s90(1) is the complaint. I do not think that in the end s87(3) assists in the construction of s90(1). I do not think that it has the result that the words "about whom a complaint is referred to the Tribunal" should be given a meaning which otherwise in their ordinary or plain meaning they would bear. In all the circumstances, I have come to the conclusion that the present appeal being an appeal which has been brought to the Tribunal pursuant to an appeal under s87(1)(c) is not an appeal which falls within s90(1). It is therefore in that sense an incompetent appeal. Having said that, I should add this. Reference has been made in the judgment of Sheller JA and in argument to the wisdom or otherwise of the limitation of the right of appeal to this Court against particular findings of the Tribunal. Reference has been made to, as I would describe it, the desirability of limiting the right of appeal in the manner in which s90(1) limits it. It is not necessary for present purposes to examine the merits or otherwise of the course which the legislature 4 UNREPORTED JUDGMENTS has adopted. It may be that, as a matter of history, the legislature saw that appeals had been brought under previous legislation amended and unamended in circumstances which did not justify appeals being taken to this Court. It may be that the legislature took the view, rightly or wrongly, that there should be a limit to the proceedings which could be brought in respect of matters falling under the Medical Practice Act. This is not a matter on which it is necessary for me to form a final view but one's experience of litigation in this area suggests that it may have been thought necessary to place some limit upon what could be done. I am not unappreciative of the importance of orders which are made under the Medical Practice Act both generally and, if I may say so, in the case of the doctor here in question. I am conscious of the need, as the doctor has referred to it, to give a sufficiently wide construction to provisions allowing appeals against orders restricting or preventing practice by a medical practitioner. Those orders are or may be of enormous importance to the persons involved. But in the end a decision of principle has to be made by a legislature. In my opinion the distinction which has been made by the terms of s90(1) and the other provisions which deal with the reference to the Tribunal rather than appeal, indicate the decision which the legislature has taken in this regard. In all the circumstances, therefore, in my opinion I think the appeal is incompetent. I would confirm the order which has been made by Sheller JA. I would make that as the order of this Court. I should add one further maker. Reference was made in the decision of the Tribunal given by it on 21 June 1996 to the use of names and, if I may so call it, the restriction upon publication of particulars in relation to the matter. There is provision in relation to the restriction of publication under the legislation. I do not know whether it is necessary or appropriate that some restrictive order be made in this case or whether it can be made. I have referred to the matter in neutral terms in anticipation that it is possible that some order should be made. I think that if my conclusions are those of the Court, then that is a matter to which attention could be directed subsequently. In my opinion, therefore, I would affirm the decision which has been made by Sheller JA and adopt his order as the decision of this Court. Clarke JA I agree with the order proposed by the learned President and generally with his Honour's reasons. Simos AJ I also agree with the judgment of the learned President. Mahoney P: The order of the Court will therefore be that the Appeal No 40476 of 1996 is dismissed as incompetent. His Honour made no order as to costs in that regard and I would see no reason Mr Johnson to differ from his Honour's order. Johnson: I would ask for the costs of today your Honours essentially on the basis that the matter was argued before Justice Sheller, apparently his Honour took the view there should be no order for costs there because of the relatively late notice of the incompetency issue being raised, it's been raised today. It was the order of his Honour the claimant was on notice of the opponent's position so I would seek the costs of today as costs following the event. Mahoney P: I think the Court's of the opinion Mr Johnson that in this matter each party should bear its own costs. I have raised the question of restrictive orders, I'm not sure that any order can or should be made. Is there any application in that regard? URYLOR v THE HEALTH CARE COMPLAINTS COMMISSION OF NEW SOUTH WALES (Simos AJ) Johnson: It was an order made by the Tribunal pursuant to statutory powers, those powers I think had their origins essentially because of the sensitive nature of the subject matter and it is a matter for the Court, I don't know if the claimant wishes to make such an application, it may be appropriate that it's the type of matter where the Court's judgment could come in the name T v The Health Care Complaints Commission where there is no reference I think to the claimant's name in the judgment and in that way- MAHONEY P: I've been careful to avoid that. But if the Court is to do that it must have power to do it. Where does it find any power? There's nothing in the Medical Practice Act. Johnson: No. Simos AJA: Is there something in the Act which gives this Court the same power as the Tribunal? Applicant: Yes your Honour, I believe so. Johnson: I think the problem is that as the appeal's incompetent the question of whether there's any power specifically provided in the Medical Practice Act could apply would be a difficulty. It perhaps would have been open to this Court exercising its powers under s80 of the Supreme Court Act to hear this application today in camera, that hasn't happened but the question arises as to whether this Court has either an implied power or an inherent power which it could exercise having regard to the subject matter that was before the Medical Tribunal to prohibit on the basis of the Scott and Scott type principle publication of the name of the claimant. I would certainly submit to the Court that although there's no statutory vehicle available that it may be appropriate for the Court to exercise that power which * undoubtedly has. Mahoney P: S91(2) has been referred to. Johnson: I would certainly argue that even if the present situation did not fall expressly within that section, that the Court could take comfort whether by way of an exercise of implied power or inherent power in making an order that protects the subject matter of a litigation in the same way as if the proceeding was within jurisdiction. Mahoney P: For myself I wouldn't see the inherent power as relevant Mr Johnson. If there is a power it's got to come under the Act. Johnson: It may be that if the judgment of the Court was made without specific reference to the claimant's name and the formal parts of the judgment that, without making an order the Court could by use of a pseudonym in effect achieve the same result. Mahoney P: Doctor do you contend that any special order should be made in this regard? Applicant: Well I would make an application your Honour that my name and personal details not be published in the reports of this judgment today. Clarke JA: Isn't it a bit late? There's just no application made to Justice Sheller, his judgment has been published in open form. If for instance anyone thought this should be reported somewhere it's probable that both judgments would be reported and the name would be there. Applicant: I guess I would just submit that s91(2) does seem to provide a possibility that such an order could be made and the powers of this Court on appeal are such that they can exercise any of the powers that the Tribunal could have exercised and there is a provision entitling the Tribunal to make orders prohibiting publication and such an order was made in my situation. There was one case that I came across your Honour and I can't give you the name of it at 6 UNREPORTED JUDGMENTS the moment but there was a case in which an order for non publication was made by the Medical Tribunal at some stage of the proceedings but then the Tribunal subsequently reversed its order with respect to non publication and that matter plus a related appeal came before this Court and I can't recall exactly what was the- Mahoney P: I think the Court is generally of the view Doctor that it's too late but in any event it wouldn't make the order. Applicant: Very well, your Honour. The order which was made by the Medical Tribunal wasn't of much use to me anyway because it gives so much detail about my background, it mentions all my degrees and the fact that ''m from Queensland that they might as well have put my name there. Mahoney P: I was not unappreciative of that but I thought we'd have the opportunity to discuss it. The appeal No 40476 of 1996 is dismissed as incompetent. No order made as to costs in that regard. The claimant appeared in person. Counsel for the opponent: PA Johnson Solicitors for the opponent: D Swain, Health Care Complaints Commission of NSW, Surry Hills