Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BCS v Dental Council of NSW (No 2) [2016] NSWCATOD 9 Hearing dates: On the papers Date of orders: 28 January 2016 Decision date: 28 January 2016 Jurisdiction: Occupational Division Before: A Britton, Principal Member Dr A Lang, Professional Member Dr F Wright, Professional Member Dr C Berglund, Occasional Member Decision: Pursuant to cl 7 of Schedule 5D to the Health Practitioner Regulation National Law (NSW), the disclosure of the appellant's name is restricted to the parties and their representatives, and to any other persons or bodies where disclosure is necessary for the effective implementation and administration of the orders made in these proceedings. Order 7 made by the Tribunal on 9 November 2015 is revoked. The appellant is to pay the respondent's costs of the proceedings. Catchwords: PRACTICE AND PROCEDURE — principles of open justice — whether appropriate to order the suppression of name of health practitioner COSTS — principles applying to awarding costs under the Health Practitioner Regulation National Law (NSW) — presumption that the successful party is ordinarily entitled to recover its costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: BCS v The Children's Guardian [2014] NSWCATAD 81 BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 125 HCCC v Dr Gow (Suppression order) [2008] NSWMT 3; Health Care Complaint Commission v Vo [2014] NSWCATOD 127 HCCC v Simring (Suppression Order) [2010] NSWMT 6 Health Care Complaints Commission v BXD (No 2) Health Care Complaints Commission v Dr A [2012] NSWMT 10 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Qasim v Health Care Complaints Commission [2015] NSWCA 282 TK v R [2009] NSWCCA 151 Category: Procedural and other rulings Parties: BCS (Applicantt) Dental Council of Australia (respondent) Representation: Counsel: P Griffin SC (Applicant) B Baker (Respondent) Solicitors: Meridian Lawyers (Applicant) Dental Council of NSW (Respondent) File Number(s): 1520096 Publication restriction: The publication of the name of SE, GL and the appellant and his former wife is prohibited. REASONS FOR DECISION 1. On 9 November 2015 the Tribunal (Principal Member Britton, Professional Members, Drs Lang and Wright and Occasional Member, Dr Berglund), dismissed an appeal brought by the appellant, "BCS" against a decision made by the Dental Council of NSW (the Council) to impose conditions on his registration as a dentist. (BCS v Dental Council of NSW Insert citation ). In its decision the Tribunal also invited the parties to (i) make submissions about whether the order prohibiting the publication of the appellant's name (the non-publication order) should continue, and (ii) apply for costs. 2. The version of the reasons for decision issued to the parties on 9 November 2015 (the Reasons) referred to BCS by name. The Tribunal ordered that those reasons not be disclosed to anyone other than the parties and their representatives until the issue of whether to continue the non-publication order had been determined. 3. For the reasons that follow the non-publication order is continued and the appellant is to pay the costs of the Council, the respondent in these proceedings. Should the non-publication order be continued? Statutory framework and principles 1. The combined effect of ss 49(1) of the Civil and Administrative Tribunal Act 2013 (Tribunal Act) and 165K of the Health Practitioner Regulation (National Law) (National Law) is that proceedings before the NSW Civil and Administrative Tribunal (NCAT) brought under the National Law are open to the public unless otherwise ordered. The power to order that a hearing be held in private can only be exercised if the Tribunal is satisfied that it is "desirable to do so in the public interest for reasons connected with the subject-matter of the proceedings or the nature of the evidence to be given" (s 165K(2) of the National Law). 2. Clause 7(1)(b)(iii) of Schedule 5D to the National Law provides that the person presiding in proceedings before the Tribunal may, if they think it is appropriate "in the particular circumstances of the case", direct that the name of nominated persons involved in the proceedings, including a registered health practitioner, not be published. Submissions made by the parties 1. The appellant submits that the non-publication order should continue. The Council disagrees but concedes that unless the references in the Reasons to judgements and decisions of courts and other tribunals where suppression orders are currently in place are redacted, the non-publication order should continue. 2. The appellant contends that the power to continue the non-publication order should be exercised for the following reasons. First, the decision of the Council the subject of his appeal to NCAT was not publicly available when he lodged his appeal and had he not challenged that decision he would not have been at risk of having his name revealed. Second, lifting the non-publication order would disclose the identity of his former wife, the victim of the sexual assault charges for which he has been convicted. He contends that the disclosure of her identity in that context would be contrary to the public interest. Third, the trigger for the Council's decision is as yet undetermined allegations made by two former patients, which are the subject of current assessment and possible investigation by the Health Care Complaints Commission (HCCC). Fourth, if his name were to be disclosed in relation to these proceedings he would suffer significant reputational damage. 3. The appellant contends any risk he might pose to patients (which is not conceded) has been ameliorated by the Tribunal's decision to confirm the chaperone condition imposed by the Council. 4. The Council submits that the reasons advanced by the appellant do not support the continuation of the non-publication order. The Council points out that in proceedings under the National Law reputational damage to a heath practitioner is generally not considered sufficient to displace the presumption in favour of open justcie, citing in support Health Care Complaints Commission v Dr A [2012] NSWMT 10, HCCC v Simring (Suppression Order) [2010] NSWMT 6, HCCC v Dr Gow (Suppression order) [2008] NSWMT 3 and Health Care Complaint Commission v Vo [2014] NSWCATOD 127. 5. With respect to the concerns raised by the appellant about disclosing the identity of his former wife, the Council advised that it had taken steps to inform her that the Tribunal was considering whether to continue the non-publication order and she advised she did not wish to be heard on the issue. 6. While the Council opposes the continuation of the non-publication order it concedes that the effect of lifting that order would be to disclose the appellant's identity in judgements and reasons for decisions handed down by other courts and tribunals, where suppression orders are in place and the appellant is referred to by a pseudonyms: TK v R [2009] NSWCCA 151; BCS v The Children's Guardian [2014] NSWCATAD 81 and BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 125. The Council suggests that this problem could be addressed by redacting the references to those judgements but acknowledges that the Tribunal's consideration of those decisions formed an integral part of its Reasons. Consideration 1. The power to make an order under cl 7(1)(b)(iii) of Part 5D to the National Law vests in the presiding member of the Tribunal. Accordingly the decision as to whether the non-publication order should continue is made by the presiding member, Principal Member Britton. 2. The discretionary power to make a non-publication order in respect of a health practitioner, can only be exercised where the presiding member thinks it appropriate "in the particular circumstances of the case". In exercising that power the presiding member must have regard to the norm of open justice established by ss 49(1) of the Tribunal Act and 165K of the National Law, together with the objects of the Tribunal Act, which include to ensure that the Tribunal is accountable and has processes that are open and transparent (s 3(f)). The authorities have consistently emphasised that the power to depart from that norm must be exercised sparingly. 3. As noted by the Tribunal (Acting Judge K P O'Connor) in Health Care Complaints Commission v BXD (No 2) at [16], it is an "unavoidable incident" that a health practitioner the subject of proceedings brought under the National Law will often suffer a deep sense of shame and embarrassment and will be concerned about the impact of the proceedings on other members of their family. His Honour explained at [25] the rationale for disclosing the health practitioner's identity: Disciplinary proceedings and disciplinary orders have as their ultimate purpose the protection of the public. The public has an interest in knowing whether a practitioner has been charged with a disciplinary offence, and of the outcome especially where it is adverse. The public has an interest in satisfying itself as to the integrity and fairness of decision making in relation to the conduct of professional persons. Publicity also serves that end. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and the nature of the offence. Decisions also provide a marker of what is unacceptable to other members of the profession. 1. The alleged conduct which led to the Council's decision to subject the appellant to a chaperone condition is yet to be investigated by the HCCC. Neither the Council nor the Tribunal has made any findings about those allegations. Ultimately the HCCC may decide not to investigate the complaints or not to refer them to NCAT for determination. Nonetheless, of itself the absence of any positive findings about the appellant's alleged conduct does not justify a departure from the principles of open justice. 2. But, as properly acknowledged by the Council, a practical difficulty arises in this case if the non-publication order were to be lifted. The lifting of that order would effectively undermine orders made by the Court of Criminal Appeal, the Supreme Court and NCAT (Administrative and Equal Opportunity Division) to suppress the appellant's name in different proceedings. It goes without saying that it would be highly inappropriate for NCAT to make decisions which fail to respect suppression orders made in other jurisdictions. While, as the Council points out, this problem could be cured by deleting from the Reasons the references to those decisions, this would create difficulties as those decisions were referred to throughout the Reasons and were relevant to the Tribunal's ultimate decision to dismiss the appeal. 3. As the Council identified, there are effectively two options available to the Tribunal in these circumstances: to continue with the non-publication order or to issue a heavily redacted version of the reasons for the substantive decision. Each involve public interest considerations. The former deprives the public of the right to know that the appellant is the subject of disciplinary proceedings; the latter deprives the public and the profession access to a set of reasons which fully disclose the reasoning process employed by the Tribunal in reaching its ultimate decision to dismiss the appeal. While the considerations are finely balanced, the Presider decides that the latter is the preferable course in the circumstances of this case because, in her view, the specific harm that would be done by lifting the non-publication order outweighs the general good that lifting the order would achieve. 4. Accordingly, it is decided the order made under cl 7(1)(b)(iii) of Sch 5D to the National Law prohibiting the disclosure and publication of the appellant's name should continue. In the interests of clarity it is noted that the previous orders prohibiting the publication of the name of the appellant's former wife and his former patients, GL and SE, are not disturbed by this order. As the issue of the continuation of the non-publication order has been determined it is appropriate to revoke Order 7 made by the Tribunal on 9 November 2015, which prevented the publication of the Reasons other than to the parties and to their representatives. The non-publication order continues in respect of the version of the Reasons provided to the parties on 9 November 2015, that is, the version which referred to the appellant by name. Application for costs 1. The Council applies for its costs of the proceedings. The appellant has made no submission to the Tribunal about that application. 2. Clause 13 of Schedule 5D to the National Law confers on the Tribunal a discretionary power to award costs. The general rule is that costs in proceedings before NCAT brought under the National Law "follow the event": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42], Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. The presumption that the successful party is entitled to recover their costs is generally only displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]. 3. We are unaware of any factors that might displace the presumption that the Council as the successful party is entitled to recover its costs. Accordingly we order that the appellant is to pay the Council's costs of the proceedings. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 28 January 2016