WALTON v MOMOT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA, HANDLEY JA and GROVE AJA 17 April 1997 [1997] NSWCA 334 PROFESSIONS — CHIROPRACTORS AND OSTEOPATHS ACT — DISCIPLINE — SUPRESSION ORDER FOR PRACTITIONER'S NAME The respondent, a chiropractor, who faced disciplinary proceedings commenced by the appellant in the Chiropractors and Osteopaths Tribunal, made an application to the Tribunal for an order suppressing publication of his name. The Tribunal refused to make the order. The practitioner appealed to the Supreme Court alleging error of law. Spender AJ allowed the appeal and made a suppression order for an unlimited period. HELD: By Handley JA (Priestley JA and Grove AJA agreeing) (allowing the appeal) (1) There was a prima facie presumption under the Act that the Tribunal would sit in public. Special or exceptional circumstances must therefore be shown before a suppression order can properly be made. This reflected the general principle that the administration of justice is carried out in public. John Fairfax & Sons Limited v The Police Tribunal (1986) 5 NSWLR 465; Bowen-James v Delegate of Director General Department of Health (29/7/91 Samuels JA unreported) applied. (2) The Tribunal had not erred in law in refusing to make a suppression order. Priestley JA. The Court is in a position to give its decision immediately, I will ask Handley JA to give his reasons first. Handley JA. This is an appeal by Merrilyn Walton, a director of the Health Care Complaints Commission, from a decision of Spender AJ. The Judge allowed an appeal by Alexander Momot from a decision of the Chiropractors and Osteopaths Tribunal given on 2 November 1994 when the Chairman declined to make a suppression order in respect of publication of the practitioner's name. The right of appeal to the Supreme Court is conferred by s 52 of the Chiropractors and Osteopaths Act 1991 and relevantly is limited to decisions of the Tribunal on a point of law. The Chairman refused to make an order prohibiting the publication of the name or means of identification of the practitioner during thecurrency of the proceedings before the Tribunal. The question of making such an order was committed to the decision of the Chairman by s 51(1) and cl 6 (1) of the Third Schedule. Section 46 (3) provides: In conducting an enquiry ... the Tribunal is, unless it otherwise directs, to be open to the public and may conduct the proceedings as it thinks fit. Subs (4) provides that sch 3 is to have effect and this contains provisions governing the conduct of proceedings before the Tribunal. Cl 6 (1) provides: 6.(1) The person presiding in proceedings before a Committee or the Tribunal may, on the request of a complainant, the registered practitioner concerned or any 2 UNREPORTED JUDGMENTS other person, if the person presiding thinks it appropriate in the particular circumstances of the case: (a) direct that the name of any witness is not to be disclosed in the proceedings; or (b) direct that all or any of the following matters: (i) the name and address of any witness; (ii) the name and address of a complainant; (iii) the name and address of a registered practitioner; (iv) any specified evidence; (v) the subject-matter of a complaint, are not to be published .... On 2 November 1994 the Chairman rejected the application for a suppression order saying: This type of application has been made on many occasions to thisTribunal. In the absence of special circumstances the Tribunal is not usually inclined to make the suppression order. There has been no evidence tendered so far in this matter. I have heard what you have to say, Mr Niven (who was appearing for the practitioner) but it is the decision of the Tribunal that no such suppression order be made. Counsel for the practitioner having indicated that the matter would be tested in the Supreme Court, the Tribunal adjourned and formal reasons were given on 16 November. The Chairman said: My reason for exercising my discretion not to grant the suppression order was that no matters were put to me nor any evidence adduced to convince me that there were exceptional circumstances that I could rely upon to make the order ... I specifically mention that it was put to me that the fact that the chiropractor was blind is an exceptional circumstance. The foundation for that remark is that because he is blind the public will be better able to identify him as the blind chiropractor referred to in any publication of the facts and circumstances of the complaint ... in my judgment that fact is not an exceptional circumstance to warrant the serious matter of making a suppression order. Spender AJ set aside the decision of the Chairman and made a suppression order which was unlimited in time. This order, as made and entered, went further than that sought by senior counsel for the practitioner and in any event was irregular. The appropriate order was one prohibiting publication during the pendency of the proceedings. If for example the Tribunal had concluded that an order should be made removing the name of the practitioner from the register of chiropractors, it would be unthinkable that there should be an order of the Supreme Court in force which prohibited the publication of such an order. The Judge in coming to his conclusion that the Tribunal had erred in law said: There is in my view no basis for importing into the powers conferred by s 46 (3) or by the Third Schedule a requirement that the circumstances must be special or exceptional for a suppression order to be made ... I have referred to what was said by the Chairman ... in my opinion he has misdirected himself as to the law and consequently the plaintiff is entitled to relief. The order made by his Honour, with respect, was not only irregular because of its duration, it was also irregular because his Honour made a suppression order whereas the only order he had power to make was an order remitting the proceedings to the Tribunal to reconsider the question of making such an order properly instructed as to the applicable law. However in my judgment, and with URJ WALTON v MOMOT (Priestley JA) 3 respect, his Honour erred in finding that there was no requirement that special or exceptional circumstances should be established before a suppression order could properly be made. The general principle provided for in s 46 (3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. It could decide under s 46 (3) that it will sit in private, or it could make a suppression order under cl 6 (1) in the Third Schedule. This of course reflects the general principle that the administration of justice under our system is carried on in public. This has been repeatedly emphasised by the courts, most recently, for relevant purposes, in John Fairfax & Sons Limited v The Police Tribunal (1986) 5 NSWLR at 465, and by Samuels JA in Bowen-James v Delegate of Director-General Department of Health (40432/91 unreported 29/7/91). The Chairman therefore did not misdirect himself when he said that special or exceptional circumstances had to be established before a suppression order could properly be made. For those reasons I would propose that the appeal should be allowed, the judgment of the Supreme Court set aside, and in lieu thereof an order made that the proceedings in the Supreme Court be dismissed with costs. I propose that the respondent be ordered to pay the appellant's costs of this appeal, but to have a certificate under the Suitors" Fund Act. Priestley JA. I agree with the reasons given by Handley JA and the orders that he proposes. Grove AJA. I also agree. Priestley JA. The orders of the Court, therefore, are as proposed by Handley JA. Orders accordingly. Counsel for the appellant: J Basten QC Solicitors for the appellant: David Swain: HCCC Counsel for the respondent: J Conomos: G Niven Solicitors for the respondent: Edward Kennedy