New South Wales Court of Appeal CITATION: Dr Andrew Katelaris v Medical Tribunal of New South Wales [2010] NSWCA 377 HEARING DATE(S): 10 May 2010 JUDGMENT DATE: 10 May 2010 JUDGMENT OF: Allsop P at 1 EX TEMPORE JUDGMENT DATE: 10 May 2010 1. Order that the NSW Medical Board be joined as a party to these proceedings. 2. Grant leave nunc pro tunc to the Medical Board to file their notice of motion returnable today to strike out the appeal. DECISION: 3. Stand over the notice of motion of the Medical Board to strike out the appeal and the notice of motion of Dr Katelaris to amend the appeal to a date to be fixed. 4. Direct the Registrar of the Court of Appeal to approach the NSW Bar Association seeking pro bono assistance to Dr Katelaris either as a representative of Dr Katelaris or as amicus curiae. 5. Costs of today to be costs in the current appeal. LEGISLATION CITED: Medical Practice Act 1992 (NSW) s 90(1)(a)(b), s 92 Supreme Court Act 1970 (NSW) s 69 CATEGORY: Principal judgment CASES CITED: Kirk v Industrial Relations Commission [2010] HCA 1 Dr Andrew Katelaris (Appellant) PARTIES: Medical Tribunal of New South Wales (First Respondent) NSW Medical Board (Second Respondent) FILE NUMBER(S): CA 298549/2009 In Person (Appellant) COUNSEL: Ms K Richardson (Respondent) In Person (Appellant) SOLICITORS: Crown Solicitors (First Respondent) Medical Board of NSW (Second Respondent) LOWER COURT JURISDICTION: Medical Tribunal of New South Wales LOWER COURT FILE NUMBER(S): 40023 of 2008 LOWER COURT JUDICIAL OFFICER: A M Ainslie-Wallace DCJ LOWER COURT DATE OF DECISION: 16 October 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 298549/2009 ALLSOP P Monday 10 May 2010 DR ANDREW KATELARIS v MEDICAL TRIBUNAL OF NEW SOUTH WALES Judgment 1 ALLSOP P: To the extent that the 2005 Tribunal's decision is complained of and is sought to be reviewed by this Court the proper parties need to be before the Court and there needs to be an application for an extension of time. 2 As to the 2005 decision attention needs to be given to identifying whether the complaint is under s 90(1)(a) or (b) of the Medical Practice Act 1992 (NSW). If it is under s 90(1)(a) the decision of the tribunal with respect to a point of law should be identified. If it is under s 90(1)(b) the exercise of the power of the Tribunal in ss 60 to 65 of the Medical Practice Act, they being Div 4 of Pt 4, need to be identified. If a complaint is to be made based on s 69 of the Supreme Court Act 1970 (NSW) a proper foundation for such relief must be identified by way of jurisdictional or other operative error sufficient to enliven s 69. 3 As to the 2009 Tribunal's decision: at the moment the authorities of this Court appear arguably to lead to the conclusion that any appeal under s 90 is incompetent. However, if any notice of appeal under s 90 in relation to the 2009 decision is to be pressed, consideration should be given once again to the grounds of any asserted appeal under s 90(1)(a) and (b) but also to the question as to the application of the decisions of this Court referred to in Ms Richardson's submissions. 4 Also, in relation to the 2009 decision, if an application is to be brought under s 69 of the Supreme Court Act attention should be given to what are the jurisdictional or other errors sufficient to enliven the operation of that section, as are shown by the decision of the Tribunal in its review under the Medical Practice Act, s 92. 5 All these matters, if they are to be argued by or on behalf of Dr Katelaris, require some consideration of legal principle and the contents of the Medical Practice Act. 6 I propose to make a direction that the Registrar of the Court of Appeal approach the New South Wales Bar Association for the assistance pro bono of counsel either to act on behalf of Dr Katelaris or in consultation with him to act as an amicus curiae. Such barrister may make request for the presence of an assisting solicitor and in that respect, if that were sought by counsel, I would direct the Registrar to approach the Law Society. 7 The issues involved, or that may be involved, are reflected in today's transcript. The recent decision of the High Court in Kirk v Industrial Relations Commission [2010] HCA 1 has thrown into some relief the importance of the supervisory jurisdiction of this Court over tribunals in this State. There is no privative clause in the Medical Practice Act whose validity might be called into question by Kirk. Nevertheless, in discussion with Ms Richardson today, the Board accepts that there are difficult issues of competing or concurrent mechanisms of review, that is, under the Medical Practice Act, s 90 and also under the Supreme Court Act, s 69. 8 The Medical Board was not joined to the original notice of appeal, but it is named as a party to the proposed amended notice of appeal. I will deal with that procedural matter in a moment. 9 As I have said, if the 2005 Tribunal decision is to be attacked in some fashion the Health Care Complaints Commission may have to be a party. One would have thought, hopefully, that unified representation could be arranged by the Board and the HCCC to avoid unnecessary expense. 10 I think the appropriate course today is to do the following: to order that the New South Wales Medical Board be joined as a party to these proceedings; to grant leave nunc pro tunc to the Medical Board to file their notice of motion returnable today to strike out the appeal; to stand over the notice of motion of the Medical Board to strike out the appeal and the notice of motion of Dr Katelaris to amend the appeal to a date to be fixed; and to direct the Registrar of the Court of Appeal to approach the New South Wales Bar Association seeking pro bono assistance to Dr Katelaris either as a representative of Dr Katelaris or as amicus curiae . 11 In order that any application or applications to this Court in relation to either or both the 2005 Tribunal decision and the 2009 Tribunal decision be properly and regularly prepared with a view, in particular, to the terms and content of ss 90, 91 and 92 of the Medical Practice Act and the authorities of this Court in relation to those provisions and the authorities in relation to the operation of s 69 of the Supreme Court Act, I grant leave to the parties to approach the Registrar for the re-listing of the matter after Dr Katelaris has had the opportunity to obtain legal assistance. 12 I will not make any order presently for the Health Care Complaints Commission to be joined. That may be premature, and I do not wish to make any order productive of unnecessary costs for any party. The joinder of the Health Care Complaints Commission can abide any legal advice obtained by Dr Katelaris. If, however, the 2005 Tribunal decision is to be attacked in some way Ms Richardson's proposition that the Health Care Complaints Commission is the proper party, perhaps in addition to the Tribunal if s 69 is sought to be invoked, appears to be a good one. 13 For the benefit of the Registrar, to the extent that this matter is re-listed, unless I am on leave it is to be re-listed before me. 14 So costs are not lost it is appropriate to make an order that the costs of today be costs in the current appeal. That said, Dr Katelaris is a litigant in person. It may be that in due course, with the assistance of legal advice, a more appropriate vehicle or vehicles to his complaints can be structured, in which case it may, in all the circumstances, be just that the costs of today may form part of those later proceedings. The costs of today will thus be part of the overall controversy to be allocated to the appropriate procedural vehicle that comes ultimately before the Court. Therefore, in that sense only, costs of today will be costs in the current appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.