A.Y.H.T. v Medical Board of South Australia (No 2) No. Scgrg-99-95

[2000] SASC 274

A.Y.H.T. v MEDICAL BOARD OF SOUTH AUSTRALIA (NO 2)
[2000] SASC 274

Civil

1................ DEBELLE J.  (ex tempore)        This is an application for stay of proceedings before the Medical Practitioners Conduct Tribunal (“the Tribunal”).

1. The applicant is a medical practitioner. By complaint dated 18 June 1998 laid by the Registrar of the Medical Board, the applicant was charged with four counts of unprofessional conduct towards a patient. The charges were laid before the Board pursuant to s 54(1) of the Medical Practitioners Act 1983.

2. On 8 July 1998 the Registrar gave notice to the applicant that the Board intended to inquire into the complaint. The inquiry began on 21 December 1998. Before the inquiry had commenced, the Registrar had informed the legal representatives of the applicant that he would be asking the Board to lay a complaint before the Tribunal. As soon as the inquiry opened and before a plea had been taken from the applicant, Ms Powell QC, who then appeared for the applicant, as a preliminary matter asked the Board to rule on the manner in which it proposed to conduct the inquiry. She submitted that the complainant should be called and made available for cross-examination. She informed the Board that she was aware that the Registrar proposed to ask the Board before hearing evidence to lay a complaint before the Tribunal. She submitted that that course should not be adopted and that the Board had an obligation to require the patient to be called so that she would be available for cross-examination. After hearing submissions from both parties the Board referred the complaint to the Tribunal. It did not require the complainant to be called and made available for cross-examination.

3. On 28 January 1999 the applicant made an application for judicial review seeking an order in the nature of certiorari to quash the Board’s decision to refer the complaint to the Tribunal and an order in the nature of mandamus directing the Board to conduct an inquiry into the subject matter of the complaint. The application was heard by Martin J who, on 5 November 1999, dismissed the application. The applicant appealed to the Full Court which, on 2 June 2000, dismissed the appeal.

4. By letters dated 6 June and 9 June the solicitors for the applicant had informed the Crown Solicitor, who was handling the matter on behalf of the Board and its Registrar, that they had been instructed to institute an application for leave to appeal to the High Court of Australia. They asked the Crown Solicitor not to prosecute the complaints until the application for special leave had been heard and determined by the High Court. By letter dated 20 June the Crown Solicitor informed the applicant’s solicitors that he had been instructed to apply to the Tribunal for a hearing date. On 27 June 2000 the applicant filed an application for special leave to appeal to the High Court. The applicant now seeks a stay of the proceedings in the Tribunal. The Tribunal has conducted a preliminary directions hearing and it appears that neither of the parties will be ready to proceed in this matter until some time in November. As I understand the position, the directions hearings in the Tribunal have not yet been completed.

5. Although the application for leave to appeal was filed on 28 June 2000, it was not possible for the matter to be listed for hearing in the applications for special leave to appeal heard this week in Adelaide by the High Court of Australia. I am told, and I accept, that the earliest possible date might be a date in November. The likely date of the hearing of the application has not been expressed with any more certainty than that.

6. The court has an inherent jurisdiction to order a stay: Aston v Director of Public Prosecutions (1987) 45 SASR 181. It is an extraordinary jurisdiction which will only be exercised in exceptional circumstances: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 and Gerah Imports Pty Ltd v The Duke Group Ltd (1994) 119 ALR 401, and Duke Group Ltd v Pilmer [1999] SASC 373. The relevant factors are noted in those cases. Exceptional circumstances may arise where the subject matter of the proposed appeal will be lost if a stay is not ordered, with the result that the application for special leave and any subsequent appeal will be nugatory. In one sense, the subject matter of this appeal is the question whether the applicant was entitled to cross-examine the complainant in an enquiry before the Board. The powers of the Board to discipline a practitioner are not as wide as the powers of the Tribunal. That is merely but one aspect of the matter. The substance of the matter is whether the applicant has been guilty of unprofessional conduct. The Board in the exercise of its powers has referred the complaint to the Tribunal. The applicant will have the opportunity to cross-examine the complainant in the course of the proceedings in the Tribunal. In short, the applicant loses nothing by the fact that the matter has been referred to the Tribunal. That conclusion is reinforced by the fact that there is no provision in the Medical Practitioners Act which provides anything equivalent to a preliminary examination available in the case of more serious criminal proceedings. I am not therefore satisfied that the refusal to order a stay renders the rights of the applicant nugatory.

7. There are other aspects to consider. They include the prospects of success. The applicant’s summary of argument fails to address the fact that the allegations are sufficiently serious to justify the Board referring them to the Tribunal and that the Board could have referred them to the Tribunal without further enquiry. It is relevant to note that in para 24 of its reasons the Full Court referred to a concession made in the course of the hearing before Martin J by Ms Powell that she did not seek to make a submission to the Board that the allegations in the complaint were not sufficiently serious to refer the matter to the Tribunal. The Full Court had regard to that fact in the exercise of its discretion whether to grant relief. It said that even if it had concluded that there had been a failure to observe the rules of procedural fairness, nevertheless, in the exercise of its discretion, it would have declined to interfere with the decision of Martin J. The Board has the power to lay a complaint if it considers the allegations to be sufficiently serious. In the light of Ms Powell’s concession, it would have been quite futile to have set aside the decision of the Board. Even if Ms Powell had not made that concession, a cursory examination of the complaint discloses that the allegations made in it are very serious indeed.

8. The summary of argument also displays misconceptions as to the reasons given by the Full Court. The applicant is unable to point to any authority in support of his argument. The decision in Barwick v Law Society of New South Wales (2000) 169 ALR 236, to which the applicant refers, does not assist the applicant in any respect other than it holds that the procedures prescribed by the Medical Practitioners Act for disciplinary matters must be carefully observed. As the Full Court has held, the procedures were observed. Furthermore, the decision in Barwick concerns a statutory disciplinary scheme which has material differences from the scheme in the Medical Practitioners Act. I am not persuaded that the applicant has shown his reasonable prospects of success on the application for special leave to appeal.

9. I turn to the balance of convenience. It is apparent that directions hearings are still proceeding and that no firm date has yet been fixed for the hearing of the matter by the Tribunal. I do not think that the prosecution of these directions hearings should be delayed pending the hearing of the application for special leave to appeal. Furthermore, it is apparent that the proceedings before the Tribunal will, at worst, from the point of view of the applicant, have only just begun when the application for special leave to appeal will be heard. I think the balance of convenience requires that the proceedings proceed. If the applicant is successful in obtaining a grant of leave to appeal, he is at liberty to renew his application.

10. There are two further matters to which I have regard in the exercise of my discretion. The first is that the mere fact of a hearing before the Tribunal will not in itself adversely affect the rights of the applicant. His rights will be affected if, and only if, the Tribunal finds the complaint approved. As I have said, if he obtains a grant of leave to appeal it is open then for him to renew his application for a stay.

11. Secondly, it is relevant to note that this complaint was laid by the Registrar as long ago as 18 June 1998, more than two years ago. As yet there has been no examination of the substance of the complaint. All of the legal proceedings in relation to this matter have dealt with what might be said to be procedural issues. I do not think it appropriate that there be any further delay.

12. For these reasons the application for a stay is refused.

13. The orders will be, application for stay dismissed. The applicant will pay the respondent’s costs of and incidental to the application. Fit for counsel.