Council of the New South Wales Bar Association v DBW [2017] NSWCATOD 71

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v DBW [2017] NSWCATOD 71 Hearing dates: 26 April 2017 Date of orders: 16 May 2017 Decision date: 16 May 2017 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President R Hamilton SC, Senior Member M Bolt, General Member Decision: 1. Leave is granted to the Council of the NSW Bar Association (the Bar Council) under s 568 of the Legal Profession Act 2004 NSW (repealed) (the LPA 2004) to withdraw the Applications for Disciplinary Findings and Orders filed 11 August 2015 and 8 December 2015 against DBW (the practitioner). 2. Subject to Orders 3 and 4 of these orders, under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting disclosure or publication of paragraphs 10-17 of the affidavit of Rod Cameron sworn 15 February 2017 together with the annexures thereto, paragraph 3 of the affidavit Paul Hatch sworn 7 April 2016 and the confidential annexure to the applicant's written submissions dated 12 April 2017 (the restricted evidence). 3. Order 2 does not preclude the practitioner or his advisors from disclosing or publishing the restricted evidence for the purpose of further or continued proceedings relating to the complaints the subject of these proceedings. 4. Order 2 does not preclude: (a) the Bar Council or any member of the Bar Council and/or (b) the New South Wales Bar Association or any of its officers or employees or any person acting on its direction from disclosing the restricted evidence to any of the following persons, bodies or entities in connections with the Bar Council's exercise of its functions under the LPA 2004 and the Legal Profession Uniform Law (NSW) (the Uniform Law) and the Legal Profession Uniform Law Application Act 2014 (NSW) (as amended or substituted from time to time) and all regulations and rules made under or in connection with those Acts (as amended or substituted): (i) the Legal Services Council and any member, committee or delegate of the Legal Services Council; (ii) the Commissioner for Uniform Legal Services regulation, and any delegate of the Commissioner; (iii) a local regulatory authority or corresponding authority within the meaning of the Uniform Law and any member, committee, or delegate of any such authority; (iv) a person who is a member of the staff of, or acting at the direction of, any of the entities or persons referred to in (i)-(iii) above; (v) any Australian or foreign authorities or courts as referred to in s 436 and 437 of the Uniform Law; (vi) any Australian Government authorities, professional associations or educational bodies as referred to in s 441 of the Uniform Law; (vii) any medical practitioner and/or health professional nominated by the Bar Council, a local regulatory authority or corresponding authority within the meaning of the Uniform Law for the purposes of s 95 of the Uniform Law or any equivalent provision, regulation or rule in any other State or Territory; and (viii) any person, body or entity to the extent that disclosure is permitted by ss 462 (2) and (3) of the Uniform Law. 5. Under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of these reasons, other than the redacted version of the reasons is prohibited. 6. Notwithstanding the anonymisation of the practitioner's name, and Order 5, the Bar Council may provide to any person who has made, or does make, a complaint about the practitioner a copy of the redacted published reasons identifying that the redacted published reasons are in respect of Applications for Disciplinary Findings and Orders against the practitioner. 7. No order as to costs of the proceedings. Catchwords: PROFESSIONS AND TRADES – professional discipline - where applications assert respondent practitioner is guilty of unsatisfactory professional conduct or professional misconduct – where respondent practitioner suffers a medical condition which renders him unable to participate in or understanding nature of the proceedings – HELD appropriate to grant leave to withdraw the applications Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Act 1987 (NSW) (repealed) Legal Profession Act 2004 (NSW) (repealed) Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ) Protection of Personal and Property Rights Act 1988 (NZ) Trans-Tasman Mutual Recognition (New South Wales) Act 1997 (NSW) Cases Cited: Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31 Council of the New South Wales Bar Association v Li [2005] NSWLR 603; [2005] NSWCA 415 Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 Health Care Complaints Commission v BQB [2014] NSWCATOD 157 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Khan [2014] NSWCATOD 79 Health Care Complaints Commission v Sarfraz [2015] NSWCATOD 75 Legal Services Commissioner v Roulstone [2011] ADT 269 McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 New South Wales Bar Association v LG [2005] NSWADT 180 New South Wales Bar Association v Li [2005] NSWADT 15 O'Sullivan v Farrer (1989) 163 CLR 210 Singh v Medical Council of NSW (No 2) [2015] NSWCATOD 28 Texts Cited: Legal Practice Note No. 10 Health Professional Councils Authority 2017, Health Administration Corporation, Department of Health (NSW). Category: Principal judgment Parties: Council of the New South Wales Bar Association (Applicant) DBW (Respondent) Representation: Counsel: C Webster SC (Applicant) No appearance by or on behalf of the Respondent