Supreme Court New South Wales Medium Neutral Citation: Vega v Health Care Complaints Commission [2015] NSWSC 1927 Hearing dates: 10 December 2015 Date of orders: 10 December 2015 Decision date: 10 December 2015 Jurisdiction: Common Law Before: Campbell J Decision: I make the following orders: Proceedings before the New South Wales Civil and Administrative Tribunal, Occupational Division, file number 1420066, are stayed until the disposal of the appeal to this Court. The costs of the parties are costs in the appeal. The appeal is listed before the registrar for orders as to case management on Thursday 17 December 2015 at 9:00 am. Catchwords: CIVIL – procedure – stay application – appeal from decision of NSW Civil and Administrative Tribunal on foot – where plaintiff found guilty of unsatisfactory professional conduct and professional misconduct by Tribunal – where protective orders have not yet been imposed by Tribunal – seeking a stay of the imposition of protective orders until appeal heard in this Court Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW); Supreme Court Act 1970 (NSW); Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Category: Procedural and other rulings Parties: Ricardo Marcenaro Vega (Plaintiff) Health Care Complaints Commission (Defendant) Representation: Counsel: K. Ridley, solicitor (Plaintiff) Britt (Defendant) Solicitors: Michael Vassili Barrister & Solicitors (Plaintiff) Health Care Complaints Commission (Defendant) File Number(s): 2015/217624 ex tempore Judgment (revised) 1. The plaintiff has commenced proceedings in this Court, appealing and seeking leave to appeal from a decision of the New South Wales Civil and Administrative Tribunal in its Occupational Division finding him guilty of unsatisfactory professional conduct and professional misconduct. The decision of the Tribunal was made on 12 June 2015. 2. The content of its decision was that the plaintiff, who is a registered nurse, touched an elderly female patient on her vagina and digitally penetrated her. Those facts, as found proven by the Tribunal, need only be stated to emphasise the seriousness of the matter, both from the aspect of the protection of the public and for the professional consequences likely to descend upon the plaintiff if the finding stands. I am informed that first aspect of the proceedings is referred to as Stage 1 of the disciplinary proceedings, and that Stage 2 involves the imposition of protective orders consequent upon that finding. 3. The defendant, who is the Health Care Complaints Commission, the moving party before the Tribunal, is seeking, understandably in the circumstances, the cancellation of the plaintiff's registration for a period of three years. If those orders are made by the Tribunal, re-registration at the conclusion of the period of three years would not be automatic. 4. The right of appeal to this Court is conferred by ss 83 and 84 of the Civil and Administrative Tribunal Act 2013 (NSW). As Mr Britt of counsel's written submissions make clear, the provisions of Sch 5 to the Act govern the business of the Occupational Division. Under cl 29(4)(b) of Sch 5, an appeal "may be made as of right on any question of law, or with the leave of the court, on any other grounds." 5. I should digress to narrate that initially the plaintiff commenced his appeal on the wrong track, in as much as a notice of intention to appeal to the Court of Appeal was filed and a notice of appeal was later filed in accordance with the provisions of Pt 51 of the Uniform Civil Procedure Rules 2005 (NSW). Ultimately the Registrar of the Court of Appeal made an order remitting the matter to the Common Law Division, and the Registrar of this Division directed that a summons under Pt 50, the correct initiating process, be filed by 7 December 2015. That order has been complied with. 6. The summons contains some 35 - 36 grounds of appeal, some of which are said to be questions of law, some of which are clearly, at best, mixed questions of fact and law, and some of which involve questions of fact. So far as the second and third categories I have mentioned are concerned, the plaintiff makes clear in the summons that leave is sought in respect of matters not involving pure questions of law. 7. The plaintiff is applying for a stay of further proceedings before the Tribunal, pending disposition of his appeal. The significance of this application is that in accordance with the usual practice in the Occupational Division of the Tribunal, the proceedings have gone into Stage 2, which involves the making of protective orders, and a timetable in this regard was fixed by the Tribunal and has been complied with. I am informed that the decision in relation to protective orders will be made in chambers on the papers, on the basis of the written submissions of the parties. No orders have yet been made. 8. Mr Britt reminds me that, essentially, although the discretion to grant a stay of proceedings in an appeal is a broad one to be exercised having regard to the interests of justice between the parties, and doubtless by reference to the overriding purpose of civil procedure in New South Wales, generally it is settled that the exercise of the discretion is informed by two salient principles or considerations: the first being the Court should be satisfied the appeal is fairly arguable; and the second that the plaintiff is likely to suffer irreparable damage if the stay is not granted. This is sometimes expressed as the plaintiff needing to demonstrate that his right of appeal may be rendered nugatory if the stay is not granted. 9. It is necessary to say something more about the grounds of appeal. I do not propose to set out all 36 of them. But essentially, as explained by Mr Ridley, solicitor, who appears for the plaintiff, the questions of law said to arise involve the misapplication of principles governing the burden and standard of proof. It is well recognised that in what might be referred to as professional disciplinary or protective proceedings, the standard of proof is the balance of probabilities but as understood by reference to the explanation of Dixon J (as the Chief Justice then was) in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. 10. The second proposition, which depends upon a point of law according to Mr Ridley's submission, is that the Tribunal failed to discharge its obligation to provide adequate reasons for its decision on key questions of fact. Those key questions of fact, as I understand it, relate to the manner in which it resolved inconsistencies in three statements made by the complainant, who died before the hearing in the Tribunal, and other related topics. 11. In applying the fairly arguable test, one needs to bear in mind that the Court is in no position to make any final, or detailed, assessment of the appeal's prospects of success. Indeed, typically an application for a stay of proceedings is made and dealt with in what might be referred to as a summary fashion. The best the Court can do is evaluate the matter quickly and without considering all of the materials that are likely to be available on the full hearing of the appeal. 12. Moreover, it is not possible to study, weigh and consider in any detail the reasons of the Tribunal. One has to make a broad and practical assessment having regard to the nature of the issues involved, the importance of the matter to the parties and the content of the grounds of appeal as formulated. Taking that broad approach, it is not necessary, as I have said, to make any assessment of the prospects of success, provided of course they do not appear to be hopeless. Nor is it necessary to make a firm decision about whether or not the grounds of appeal said to involve questions of law demonstrably do, given that leave to appeal on other matters is available and sought. 13. I must say, I accept the argument put forward by Mr Britt that the categories of error of law are narrow, and perhaps, as he argues, the starting point is the decision of Jordan CJ in Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 or perhaps the judgment of Glass J in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. However, since Azzopardi was decided, it is well recognised that to the limited categories identified by Glass JA, one may add breach of the rules of natural justice and the failure to give adequate reasons. The latter, of course, may be but an aspect of the former. 14. So, as formulated, some of the grounds might be seen to involve questions of law. The overall impression one gets, however, from reading the grounds is that what is really complained of is what might be referred to as errors in the process of fact-finding which, if I may say so, at best is likely to involve mixed questions of fact and law. Although as the decision of the High Court in Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 demonstrates, they will also extend to questions involving the adequacy of reasons. Given that leave to appeal is sought, it seems to me that mixed questions of fact and law are maintainable on the appeal as formulated. 15. Given the importance of the matter for the parties and given the detail which is contained in the notice of grounds of appeal, although the matter is hardly free from doubt, I am satisfied that the general thrust of the grounds of appeal is fairly arguable. 16. Mr Britt reminded me that certainly in cases in the Court of Appeal involving the necessity to obtain a grant of leave because the value of what is at stake is not great, a very narrow approach has been taken. I need not go into those matters. This case falls into a different category. 17. What is at stake here, from the plaintiff's point of view, although it is not the sole question, is his professional livelihood, and it would seem to me that in exercising a power to grant leave, the court hearing the appeal would not take a narrow or truncated approach to that question. Rather, the grant of leave is likely to depend upon the merit of the argument as presented in detail. But I am satisfied, not by a long way that the appeal is fairly arguable. 18. The question then becomes whether there is likely to be what I have referred to as irreversible prejudice or a reduction, if you like, in the value of the right of appeal if I refuse to grant a stay, the matter proceeds to Stage 2 and the pronouncement of protective orders. 19. Although the argument was put in various ways, the principal argument advanced by Mr Ridley in relation to prejudice relates to the limited argument that can be advanced in relation to what, from the standpoint of the plaintiff, are questions of penalty, even if from the jurisprudential standpoint the Tribunal is concerned with protection of the public rather than discipline or penalties as such. He is limited in the arguments he can advance, because maintaining his "innocence" for the purpose of advancing his appeal deprives him of the opportunity, essential I would have thought in protective proceedings, to acknowledge his wrongdoing, an part of mitigating the effect of the orders and putting forward arguments to explain what otherwise might very likely be seen as a very substantial shortfall from the requirements of the professional standards of registered nurses. 20. I accept the force of Mr Britt's argument that given the seriousness of the findings made by the Tribunal, it is difficult to conceive of any order being made that does not involve, at least for a period of time, the cancellation of the plaintiff's registration. 21. On the other hand, the difficulty of the plaintiff advancing proper arguments at Stage 2 is illustrated, I think, by the very formal submissions that have been advanced on his behalf at this stage as exhibited to Mr Ridley's affidavit. Doubtless there is a question about whether, given the difficulties of the plaintiff's position in that regard, he can properly advance his case at all in the Stage 2 process until the appeal to this Court is finalised. 22. It is not for me to second guess what might happen in the Tribunal, notwithstanding the obvious force of the arguments advanced by Mr Britt. However, it seems to me that the nature of the prejudice likely to be suffered by the plaintiff through his inability to advance proper argument before the Tribunal, especially his inability, because he maintains his innocence, to accept responsibility for his misconduct, is a most significant matter depriving him of the opportunity to mitigate the orders so far as they affect him personally. Given his livelihood is at stake, I consider that to be a significant matter. 23. Mr Britt also referred to what might be referred to as general discretionary matters which run against granting the stay. I will not deal with each one of them in detail, however he argues it is undesirable to grant the stay because that will fragment the process in the protective proceedings before the Tribunal. This is an argument that is often advanced, of course, in relation to criminal appeals and the like. Whilst attracted to the argument, I am of the view that given there is an obvious statutory right of appeal from the Stage 1 decision, that fragmentation is countenanced by the Parliament in providing the avenues of appeal which have been enacted in the statute, and that that consideration, whilst it clearly represents an undesirable feature, ought not stand against granting a stay which might otherwise seem appropriate. 24. Mr Britt also points out that the plaintiff at no time applied for a stay before the Tribunal. Indeed, the plaintiff participated in the case management procedures in relation to Stage 2 and, I think the argument is, allowed those matters to run virtually full distance in a way which might prejudice the defendant at least as to costs. 25. I think there are a number of answers to those submissions. The first is that the power of this Court to grant a stay arises in original jurisdiction rather than an exercise of appellate jurisdiction. It is not a necessary condition of an application to this Court that there should have been an application before the Tribunal. Moreover, given the nature of the proceedings conducted by the Tribunal, and the Tribunal's power over its own proceedings, it was appropriate that the plaintiff comply with the orders and directions made by the Tribunal for the preparation of the Stage 2 proceedings, even if he did so only imperfectly. 26. Thirdly, the efforts of the defendant will only go to waste if the appeal is successful. Doubtless if the appeal is unsuccessful, then the effort put in to preparing for the Stage 2 proceedings will be put to good use. If there are wasted costs because of the failure of the plaintiff to apply for a stay at an appropriately early time that is a matter that can be adjusted either in this Court when the appeal is disposed of, or in the Tribunal in due course. 27. It is not put against the plaintiff that his erroneous commencement in the Court of Appeal puts him out of the court, as I understand the argument. I accept Mr Ridley's argument in that regard based upon the provisions of s 51 of the Supreme Court Act 1970 (NSW). 28. For the reasons I have given, I think the interests of justice between the parties requires me to grant a stay of the Stage 2 proceedings in the Tribunal. 29. For the reasons I have expressed, I make the following orders: 1. Proceedings before the New South Wales Civil and Administrative Tribunal, Occupational Division, file number 1420066, are stayed until the disposal of the appeal to this Court. 2. The costs of the parties are costs in the appeal. 3. The appeal is listed before the registrar for orders as to case management on Thursday 17 December 2015 at 9:00 am. 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 December 2015