Barich v Health Care Complaints Commission [1999] NSWCA 444

New South Wales Court of Appeal CITATION : Barich v Health Care Complaints Commission [1999] NSWCA 444 FILE NUMBER(S) : CA 40448/99 HEARING DATE(S) : 30 November 1999 JUDGMENT DATE : 30 November 1999

PARTIES : Appellant- Dr Antwan Barich Respondent- Health Care Complaints Commission JUDGMENT OF : Meagher JA at 1; Beazley JA at 8; Hodgson CJinEq at 9

LOWER COURT JURISDICTION : Medical Tribunal LOWER COURT FILE NUMBER(S) : 40022/98 LOWER COURT JUDICIAL OFFICER : Medical Tribunal

COUNSEL : Appellant- Mr C A Porter QC / E Pike Respondent- A Katzmann SC SOLICITORS : Appellant- L.M.Mallon Respondent- Health Care Complaints Commission CATCHWORDS : Medical Tribunal; Relevance of cross-examination; Bias of examinor DECISION : Dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40448/99

MEAGHER JA BEAZLEY JA HODGSON CJ in Eq

TUESDAY 30 NOVEMBER 1999 DR ANTWAN BARICH v HEALTH CARE COMPLAINTS COMMISSION JUDGMENT

1 MEAGHER JA: This is an appeal by Dr Barich from a decision of the Medical Tribunal. The Tribunal found that on 13 September 1996 the doctor hugged, kissed and placed his hand on the groin of one of his female patients. That is the conduct which led to his deregistration.

2 His case was that he could not remember anything about that particular incident. He could not remember the patient coming to see him that day and he could not remember what happened between him and the patient. In other words as Mr Porter, QC, learned senior counsel for the appellant said, it was a case of patient against doctor, word against word.

3 The attitude of the doctor in stating that he could not remember the incident, seemed both to the Health Care Complaints Commission and to the Tribunal such an extraordinary attitude that considerable time was spent in testing the accuracy of the assertion. The transcript shows that Mr Porter cross-examined the complainant for about thirty pages of transcript and that Ms Katzmann cross-examined Dr Barich for a similar number of pages. One of the members of the Tribunal, Dr Giuffrida, cross-examined, if that is the correct word, the doctor for about half that time, for about sixteen pages, and it is his behaviour in this regard to which Mr Porter takes objection. The objections seem to be these. One is that the length of the questioning was unnecessary. Two that there was hostility in Dr Guiffrida's questioning. Thirdly, that it was largely irrelevant and fourthly that there is no possible explanation of that combination of circumstances except that Dr Giuffrida was hostile to Dr Barich because of his foreign background.