Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Black [2014] NSWCATOD 35 Hearing dates: On the papers Decision date: 16 April 2014 Before: J Muller, Principal member Decision: Dismiss Application by Respondent to stay or dismiss Complaints. Catchwords: Health practitioner regulation - interlocutory application to stay/dismissal application - prior criminal proceedings - issue estoppel, res judicata, autrefois acquit - abuse of process - prejudice due to destruction of exhibits from earlier criminal proceedings - whether complaint already dealt with by HCCC - role of experts from prior criminal proceedings Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a - s145A; Health Care Complaints Act 2003 - s39 (1)(e). Cases Cited: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; Jackson (formerly Subramaniam) v Legal Practitioners Admission Board [2007] NSWCA 289; Walton v Gardiner (1993) 177 CLR 378; XG v Medical Board of Australia [2011] VSC 638; R v Edwards (2009) 83 ALJR 717; Sudath v HCCC [2012] NSWCA 171. Category: Interlocutory applications Parties: Health Care Complaints Commission of NSW (Complainant) Robert Anthony John Black (Respondent) Representation: Counsel Ms V A Hartstein (Complainant) Health Care Complaints Commission(Complainant) Mr R Black (Respondent in person) File Number(s): 1420016 Publication restriction: Clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) No 86a applies reasons for decision Introduction 1This is an interlocutory decision relating to the Respondent's application that the Tribunal not proceed to determine some of the matters before it - either by way of a permanent stay or by way of dismissal. The Respondent's argument relies on one or more of the doctrines of issue estoppel, res judicata and autrefois acquit and the concept of abuse of process. The application is limited to Particulars of Complaint that relate to two of the four patients named in the Complaint. 2The Respondent raised delay in bringing the Complaints, resulting in the destruction/loss of exhibits in criminal proceedings as a cause of significant prejudice. 3Further the Respondent points to prior communication from the HCCC indicating closure of the investigation of matters now subject of Particulars of Complaint relating to one patient as a basis for the Tribunal to grant a permanent stay or dismiss the proceedings. 4The Respondent also submitted that concerns regarding bias of each of the expert witnesses relied upon by the Crown during earlier criminal proceedings was relevant to his application. 5This Tribunal convened to determine a Complaint made in accordance with s145A of the Health Practitioner Regulation National Law (NSW) dated 31 July 2013 by the HCCC to the Osteopathy Tribunal of New South Wales (as it then was) regarding the conduct of the Respondent with respect to four patients. By virtue of the transitional provisions, this matter continues before the Occupational Division of NCAT. 6The Respondent has been self-represented and first raised these matters during a Directions Hearing. Both parties agreed that this issue could be determined on the papers and a timetable for submissions was set. Submissions both dated 24 January 2014 were received from the Respondent - although one is clearly in response to the HCCC submission dated 14 February 2014 and must therefore post-date that submission. The HCCC submissions annexed a copy of its letter to the Respondent dated 4 April 2000 and an Investigation Report dated 25 March 2000. In any case, the entirety of the submissions made by both parties were provided to the Tribunal on 27 March 2014. 7The Respondent makes no application with respect to the Tribunal proceeding on that part of the Complaint relating to the other two patients. Neither party made submissions regarding costs associated with this application. What the Tribunal decided 8The Respondent's Application is dismissed. No aspect of the principles of res judicata, issue estoppel or autrefois acquit supports the Respondent's Application. The further issues raised by the Respondent did not provide a basis for the Tribunal to either permanently stay or dismiss the Complaints (or any part of the Complaints). Non Publication Order 9The Tribunal makes a non publication order to prohibit the publication of the name, address or any other material identifying any patient to which any facts of the matters subject of the Complaint made by the HCCC dated 31 July 2013 relate. Background 10The Respondent has faced two criminal trials (one in 1994 and the other in 2011) relating to conduct concerning two of the patients involved in the events giving rise to the Particulars of Complaint before this Tribunal. The Complaint relates to the alleged conduct of the Respondent towards four patients. 11With respect to the criminal trials, on each occasion there was a verdict of acquittal. On some counts there were directed verdicts. 12On 4 April 2000 the HCCC advised the Respondent of its decision to terminate (in accordance with s39 (1)(e) of the Health Care Complaints Act 2003) its investigation into the allegations made by one patient against the Respondent. The HCCC advised it would take no further action as 'on the evidence available the complaint cannot be proven'. Section 39(1)(e) provided: 39 What action is taken after an investigation? (1) At the end of the investigation of a complaint against a health practitioner, the Commission must do one or more of the following: ....... (e) terminate the matter, ....... 13Some of the Particulars of the Complaint relate to matters that occurred some forty years ago. These matters relate to alleged conduct towards a person who was at that time a minor. Further, certain items of exhibited evidence that were before the criminal courts have now been destroyed or lost. The Respondent's Application 14The Respondent made application to the Tribunal to permanently stay or dismiss the Complaints in relation to two patients (the Particulars of Complaint relating to these patients forming a significant part of the Complaints) on the following grounds: (a)By virtue of the doctrines of issue estoppel, res judicata and/or autrefois acquit as he had been acquitted of criminal charges in relation to these two patients, the Tribunal could not proceed to deal with any Particulars of the Complaints that related to these patients, (b)the HCCC had already dealt with allegations made by one patient when it terminated its investigation in 2000, and (c)prejudice flowed from the delay in bringing these complaints, in particular the Respondent is denied access to a patient's diary, a video tape and a large vibrator all of which were in evidence during one of the criminal proceedings. Legal Principles 15The applicable principles are accurately summarised on the submissions of the HCCC dated 14 February 2014. Further principles applied are set out below. Decision 16The Tribunal accepts the written submission dated 14 February 2014 made on behalf of the HCCC in totality. 17With respect to the impact of the prior criminal proceedings, the relevant principles may be found in the decision of the Court of Appeal in Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630, where the court distinguished criminal cases from disciplinary proceedings. The Court said at 634-635: It is clear that the principles established in The Queen v Storey only apply in criminal proceedings between the Crown and an accused, and have no direct application where the double jeopardy relied on arises from disciplinary proceedings heard after an acquittal. ... It is strongly arguable that there is no identity of parties in this case. The criminal proceedings were conducted by the Director of Public Prosecutions on behalf of the Crown. See Director of Public Prosecutions Act, s 7. These proceedings have been conducted by the Commission, which is a statutory body representing the Crown. (Health Care Complaints Act 1993, s 75 (2).) The Director and the Commission are both servants or agents of the Crown (Wynyard Investments Pty Ltd v Commissioner for Railways [1955] HCA 72; (1955) 93 CLR 376), but it does not follow that there is identity of parties. The Crown Proceedings Act 1988 s 5 (1), which prevents proceedings being brought against the Crown for a claim against a statutory corporation representing the Crown, may make them separate parties for present purposes. Compare Haines v Tempesta (1995) 37 NSWLR 24, Spencer Bower & Ors, "Res Judicata", 3rd Ed, 1996, pp 116-7, and Re A Medical Practitioner [1959] NZLR 784 (CA). Even if, in this case, the parties in both proceedings are the same there is still no res judicata estoppel. These are civil proceedings in which the civil onus applies as explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. See Bannister v Walton (1993) 30 NSWLR 699. Even if the factual questions were identical, the difference in the onus of proof prevents the issues being the same. Whether particular conduct has been established beyond reasonable doubt is not the same question as whether that conduct has been established on the balance of probabilities. Thus an acquittal does not bar civil proceedings against the accused arising out of the same facts. See generally Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517. ... The proposition that an acquittal does not inhibit disciplinary proceedings arising out of the same facts is well established in other common law jurisdictions. See Re Stinson (1911) 22 Ont LR 627; Re A Medical Practitioner (1959) NZLR 784 (CA); Bodna v Deller [1981] VicRp 20; [1981] VR 183 at 196-8; Basser v Medical Board [1981] VicRp 88; [1981] VR 953 at 971-2; and Saeed v Inner London Education Authority [1985] ICR 637. It is also sound in principle because both the onus of proof and the purpose and focus of the proceedings are different. 18As noted above, the Respondent faced criminal charges in relation to his conduct towards two of the patients named in the Complaints that are currently before this Tribunal. There were acquittals on both occasions. The alleged facts and circumstances forming the basis of the criminal charges have a high degree of overlap with the alleged facts and circumstances set out in the Complaints currently before this Tribunal, in so far as they relate to the Respondent's conduct towards these two patients. 19However, it is well settled that the mere fact that proceedings in other courts or tribunals (i.e. other than protective proceedings in this jurisdiction) arose out of the same facts and circumstances does not provide a basis for a permanent stay or a dismissal. 20Indeed, it may be quite wrong for the Tribunal not to proceed on these aspects of the Complaints where there may be a significant public interest in considering them. In the context of an application for admission to a profession in the matter of Jackson (formerly Subramaniam) v Legal Practitioners Admission Board [2007] NSWCA 289 the Court of Appeal clearly stated that the principles apply equally to disciplinary proceedings. At paragraph 34 Giles JA stated: 34 Because of the different burdens of proof, an acquittal does not bar civil proceedings arising out of the same facts. For the same reason and because of the different "purpose and focus of the proceedings", an acquittal does not inhibit disciplinary proceedings arising out of the same facts: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 635-6. No res judicata, issue estoppel, doctrine of autrefois acquit or other rule of law prevents examination of the conduct relied on for the crime: Prothonotary of the Supreme Court of New South Wales v Castillo [2001] NSWCA 75 at [32]. The facts can be investigated and determined adversely to the defendant or the person subject to the disciplinary proceedings, and the court or tribunal is not confined to the evidence in the criminal proceedings, let alone to an examination of the "findings" - a difficult task in the case of a jury's verdict. 21The HCCC was not a party to the criminal proceedings involving the Respondent, nor were the criminal charges brought under any legislative scheme put in place with the primary function of protecting the public in a health disciplinary context. The jurisdiction exercised by this Tribunal is a very different 'cause of action' to a criminal court as it is protective in nature exercising powers in accordance with a wider, nation-wide health practitioner regulatory scheme. It is not punitive in nature - that is the role of the criminal courts. It is also not a jurisdiction where the rights of two individuals are being determined by an arbiter. 22The Respondent submitted that the HCCC was a party to the criminal proceedings on the basis that the HCCC had written to him indicating it was proceeding with an investigation of the matter before the criminal trial had commenced. This does not, in any sense, join the HCCC as a party to the criminal proceedings. 23The prior criminal matters applied a different standard of proof to that applicable in this jurisdiction (the criminal rather than the civil - Briginshaw - standard). 24The Respondent also urges the Tribunal to consider the actions of the HCCC in 2000 (being the letter of 4 April 2000) as the basis for not allowing Particulars of Complaint relating to one patient to form part of the current Complaints. The letter from the HCCC to the Respondent dated 4 April 2000 indicates that it had decided to terminate the investigation with respect to the allegations made by that one particular patient. However, it does not, in the view of the Tribunal, operate to prevent the HCCC from putting these matters before the Tribunal at this time. These complaints were not determined or otherwise disposed of at that time. In the context of a protective jurisdiction, it is appropriate for matters to proceed where circumstances change. The HCCC has determined to bring that Complaint in the context of the complaints being made against the Respondent by other patients. 25Assuming the Tribunal has the power to stay proceedings on the basis of abuse of process (by reason of the lengthy delay and loss of exhibits) such a decision would involve weighing a range of considerations in order to decide if the circumstances result it unfairness that was so oppressive that it ought be characterised as an abuse of process. The various considerations set out in cases such as Walton v Gardiner (1993) 177 CLR 378 and Litchfield were drawn together with great clarity in XG v Medical Board of Australia [2011] VSC 638. In that case Kyrou J listed considerations relevant to the weighing process where a permanent stay is sought at [10]: (a) the need to maintain public confidence in the system for the investigation of complaints against medical practitioners; (b) the public interest in the proper and impartial investigation of complaints against medical practitioners and in the exposure of malpractice by those licensed by the State to carry out invasive and intimate examinations for medical reasons; (c) the protective character of the disciplinary proceeding; (d) the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners; (e) the seriousness of the complaint against the medical practitioner; (f) the requirements of fairness to the medical practitioner; (g) the length of any delay in the making of a complaint against the medical practitioner or in its investigation and the reasons for the delay; (h) the prejudice to the medical practitioner from a continuation of the disciplinary proceeding, having regard to matters such as the age and lack of detailed particulars of the allegations to be investigated and the medical practitioner's lack of records that may have assisted his or her defence of the allegations; and (i) the capacity of the disciplinary tribunal to give directions or to mould its procedures so as to ameliorate any prejudice to the medical practitioner. 26The Respondent points to the passage of time and claims prejudice arising from the loss of various pieces of exhibited evidence that were before the criminal court arising from the allegations made by the same patient as referred to above. 27The loss of primary evidence has been held not to necessarily render a trial unfair (see R v Edwards (2009) 83 ALJR 717 at [31]). 28The HCCC point to the transcript of the extensive cross examination of this patient (the owner of the diary exhibited in the criminal proceedings that is now lost) that was undertaken during the criminal proceedings. This transcript is in the documents filed in the proceedings before this Tribunal. The Tribunal will have this transcript available to it in conjunction with the oral evidence to be called. The Respondent has not demonstrated that the absence of the diary gives rise to unfairness in this case. 29The loss of various exhibits (the vibrator and a demonstration video) from the criminal proceedings does not prevent a fair hearing before the Tribunal. There will be ample scope at the hearing for a description to be given of the vibrator including the use of any photograph or sketch of it. The use of an item such as that may well be a matter that the professional members of the Tribunal have some knowledge. The absence of these items will not render any hearing unfair. The Respondent expressed concern regarding the knowledge of the professional members of the Tribunal. The Tribunal notes that these members are appointed in accordance with the legislation. 30The Respondent also alleged that there would be significant difficulties for his case if the Tribunal accepted the expert evidence of two people who gave evidence in the criminal proceedings. The Respondent asserts that these difficulties will arise because of a number of alleged circumstances including a conflict arising from having given expert evidence in a matter against one of these experts. The Respondent also contends that these witnesses are biased towards him and/or have been personally or professionally discredited to a degree that would make their evidence unsafe. 31The reports and oral evidence of these witnesses are included in the filed material relating to the criminal proceedings. The Tribunal notes the submission of the HCCC that these materials have been included for context and to assist the Tribunal in reaching an understanding of the outcome of the criminal proceedings. Further, the HCCC confirms in its submission what was said to the Respondent during two lengthy Directions Hearings that it does not rely upon on the evidence of these persons as its own expert witnesses for the purposes of the proceedings before this Tribunal. Rather, the HCCC has engaged other witnesses to fulfil this role before the Tribunal. The HCCC add to this submission that it is a matter for the Tribunal to determine the weight that should be given to any evidence. This submission is correct. It will be for the Tribunal to determine the weight to be given to the evidence in light of the evidence adduced at the hearing. 32The Respondent also submitted that the HCCC position of not relying on these two earlier 'experts' but rather retaining two experts for the purpose of the Tribunal proceedings as 'wrong, morally and in law'. The Respondent points to the tainting effect the 'biased evidence' given by the two earlier 'experts' on the evidence of the two experts now relied upon by the HCCC. The Respondent also questioned whether there is expertise in the particular modalities of treatment he employs. It is the Tribunal's view that these are all matters that are properly left for the Inquiry. There will be an opportunity for the Respondent to test this evidence and to make submissions as to appropriate weight that can be accorded to it. 33In his submissions in reply the Respondent alludes to there being some form of bias arising from the HCCC, the Department of Public Prosecutions and the Crown Prosecutor all being 'employed by the NSW Government'. The Respondent's submission is that the HCCC is acting unlawfully by attempting to 'reignite issue's dismissed on points of law by a District Court Judge'. This submission misconceives the distinction between different agencies, and the differences between criminal and disciplinary proceedings addressed in the cases referred to earlier. 34The Respondent also provided considerable material in his submissions that may be described as attacks on the character and credibility of the two patients involved in the criminal proceedings brought against him. Any challenge to the evidence of these witnesses which is properly available to the Respondent is a matter for the hearing before the full Tribunal. It does not bear on the issues relevant to this interlocutory application. 35In determining this application regard has been given to the principles concerning abuse of process as stated in Sudath v HCCC [2012] NSWCA 171 at paragraph 68 and following. 36This is not a matter where the circumstances submitted by the Respondent result in a conclusion that the Tribunal cannot afford him a fair hearing. There will be opportunities for evidence to be tested and for submissions to be made as to what weight to be given to evidence. 37No basis has been demonstrated for the grant of the exceptional remedy of a permanent stay or dismissal of the Complaints in question. 38As the parties did not make any submissions regarding costs this matter shall be reserved. Orders 39The Tribunal Orders: (2)Respondent's application is dismissed. (3)The question of costs with respect to this application is reserved. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 16 April 2014