Alexakis v Health Care Complaints Commission

[2021] NSWCA 217

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Alexakis v Health Care Complaints Commission [2021] NSWCA 217

Hearing dates:

13 September 2021

Date of orders:

13 September 2021

Decision date:

13 September 2021

Before:

Basten JA; Gleeson JA, Brereton JA

Decision:

(1)   Dismiss the summons seeking leave to appeal.

(2)   Dismiss the notice of motion filed on 10 August 2021.

(3)   Order that the practitioner pay the Commission’s costs in this Court.

Catchwords:

APPEALS – application for leave to appeal – practice and procedure – refusal of stay – separate civil proceedings in Supreme Court – common factual basis – differing issues – findings in one not admissible in the other – no prejudice demonstrated

APPEALS – Civil and Administrative Tribunal, Occupational Division – refusal of stay – interlocutory decision – requirement for leave to appeal – applicable principles – error of law – issue of principle – demonstrated unfairness

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 43, 51; Sch 5, Pt 6, cll 1, 29

Health Practitioner Regulation National Law (NSW), s 145G

Cases Cited:

Coleman v Health Care Complaints Commission of NSW [2020] NSWCA 337

In Re the Will of Gilbert (1946) 46 SR (NSW) 318

Category:

Principal judgment

Parties:

Peter Alexakis (Applicant)
Health Care Complaints Commission (Respondent)

Representation:

Counsel:
Mr L Ellison SC / Mr L Fernandez (Applicant)
Mr J Emmett / Ms R McEwen (Respondent)

Solicitors:
Teece Hodgson & Ward (Applicant)
Health Care Complaints Commission (Respondent)

File Number(s):

2021/228945

 Decision under appeal 

Court or tribunal:

NSW Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2021] NSWCATOD 93

Date of Decision:

14 July 2021

Before:

Cowdroy AO QC ADCJ, Dr H Bittar, Dr H Haikal-Mukhtar, C Berglund

File Number(s):

2020/148494

Judgment

1. THE COURT: The applicant, Peter Alexakis, a medical practitioner, is presently the subject of disciplinary proceedings in the Civil and Administrative Tribunal, Occupational Division (“Tribunal”). The Tribunal hears complaints of misconduct brought against medical practitioners.

2. On 14 July 2021 the Tribunal refused an application by the practitioner for a stay of those proceedings until determination of other proceedings pending in the Equity Division of the Supreme Court. ^[1] The stay application was founded on there being a common substratum of facts underlying part of each proceeding. The common element was that between January 2014 and August 2016 the practitioner treated an elderly patient (Patient B) who, in the months before his death in August 2016, twice changed his will. His final will made the practitioner the executor and principal beneficiary of his estate. The proceedings pending in the Equity Division involve a challenge to the validity of the last two wills by the principal beneficiary under the previous will.

   1. Health Care Complaints Commission v Alexakis [2021] NSWCATOD 93.

3. On 15 May 2020 the Health Care Complaints Commission (“Commission”) commenced proceedings in the Tribunal alleging that the practitioner crossed professional boundaries in his dealings with Patient B.

4. Although, if present timetables are maintained, it seems likely that the Supreme Court proceeding will be heard before the Tribunal proceeding, the Tribunal nevertheless declined to stay its proceeding until determination of the proceedings in the Supreme Court. The only step which is due to take place in the Tribunal before the Supreme Court trial (presently listed for December 2021) is the filing by the practitioner of his evidence.

5. Before turning to the matters relied on by the practitioner in support of his stay application in the Tribunal, it is convenient to identify the scope of the application in this Court.

Jurisdiction and powers

6. In dealing with the stay application, the Tribunal identified the source of power as s 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (“Tribunal Act”). That may be doubted. There was no “decision” affected by the application lodged by the Commission, nor was there any “appeal” before the Tribunal. Subject to powers relating to procedures in a particular division, the power to grant a stay may be found in s 36(1) (powers to determine own procedures) and s 51 (power to grant adjournments) of the Tribunal Act. In any event, there is no doubt that the Tribunal had power to grant a stay if satisfied that such a course was appropriate.

7. The Tribunal Act, Sch 5, Pt 6 provides for appeals from “decisions” of the Tribunal, which include interlocutory decisions: cl 1. In the Occupational Division, those decisions are not subject to internal appeals to the Appeal Panel: cl 29(1)(d). Rather, an appeal from any “profession decision” is brought to the Supreme Court: cl 29(2). Such appeals can be made as of right in respect of questions of law, but otherwise require leave: cl 29(4). However, leave is required for any interlocutory decision: cl 29(6)(a).

8. As the Tribunal in making the interlocutory decision was comprised of four members, including an acting judge of the District Court, the appeal comes to this Court. Leave is required because the decision is interlocutory. The proposed grounds of appeal did not seek to raise any question other than what were said to be questions of law.

9. The three proposed grounds were as follows:

“1   The Tribunal erred in law by determining that there was no real risk of inconsistent findings between the Tribunal and the Supreme Court (Judgment, [47]), in circumstances where the determination by the Supreme Court would relate to the same subject matter as that before the Tribunal.

2   The Tribunal erred in law by determining that adverse findings in the Supreme Court proceedings could also have an impact upon the allegations made in the Complaint filed by the respondent ([Judgment, [44]), when it should have held adverse findings in the Supreme Court would have an impact upon the allegations made in the Complaint filed by the respondent.

3   The Tribunal erred in law by finding that it could itself decide whether it accepted expert medical evidence regarding the applicant’s application for letters of administration (Judgment, [51](e)) when it should have held that it was obliged to accept the Supreme Court’s determination about the appropriateness of the applicant’s application to that Court.”

10. There were two broad propositions underlying these proposed grounds. First, the practitioner was asserting that there was a significant degree of overlap of the issues raised in the proceedings before the Tribunal with respect to Patient B and in those before the Supreme Court with respect to B’s wills. Secondly, separate proceedings could give rise to inconsistent findings, in which case the findings made by the Supreme Court must prevail. It was therefore appropriate that the Supreme Court civil proceedings be determined before the disciplinary proceedings. Further, it was submitted that even if the findings in one forum were not admissible in the other, they might be used in cross-examining the practitioner in the other forum.

Applicable principles

11. The application for leave to appeal must be addressed according to the following principles. First, regard must be had to the conferral on the Tribunal of broad powers to determine its own procedures and the material upon which it will act: Tribunal Act, s 38. That consideration, combined with the limitation of appeals to questions of law, reinforces the general principle applied by this Court in dealing with interlocutory appeals from matters of practice and procedure, namely that significant restraint will be applied before granting leave. ^[2]

    2. In Re the Will of Gilbert (1946) 46 SR (NSW) 318.

12. Secondly, there is no general requirement that disciplinary proceedings be stayed pending the hearing of other proceedings relating to the same subject matter. ^[3] Disciplinary proceedings have been stayed in circumstances where there are separate criminal proceedings on foot and this Court has been satisfied that there was a real risk of prejudice to the practitioner in the criminal proceedings if he were required to respond to the complaints in the Tribunal first. ^[4] However, that is not this case.

    3. Health Practitioner Regulation National Law (NSW), s 145G.

    4. Coleman v Health Care Complaints Commission of NSW [2020] NSWCA 337.

Application of principles

13. To the extent that proposed ground 1 relates to the ultimate issues in the separate proceedings, the overlap is quite limited. This can be illustrated by reference to an issue which is no longer extant. Particular 8 of complaint 3 alleged impropriety in the practitioner seeking to be appointed the executor of his deceased patient’s will, following renunciation of probate by the solicitor who drew the will which named him as executor. That particular has now been withdrawn (since the interlocutory ruling of the Tribunal) but there was in any event no necessary inconsistency between a finding that the practitioner was (or was not) the person to whom probate should be granted and a finding that the practitioner had (or had not) engaged in improper conduct as a medical practitioner in seeking probate.

14. Similarly, there would be no necessary inconsistency between a finding that the second and third wills should be set aside because the testator was subject to undue influence by the practitioner as principal beneficiary, and a finding that the practitioner had not crossed professional boundaries in his dealing with this patient. The absence of inherent inconsistency is manifest in the fact that the Tribunal’s decision will be based on expert evidence as to proper medical practice, evidence which would be irrelevant in considering the validity of the wills. Proposed ground 1 is based on a false premise.

15. Similar reasoning applies to the possibility of inconsistent fact-finding. While the ultimate facts will be different, it is entirely plausible that different inferences may be based on common primary facts. For example, there may be a question in both proceedings as to whether there were meetings between the practitioner and the testator at which the testator’s financial affairs were discussed. The Tribunal and Court may come to differing conclusions; they may form different opinions as to the credibility of particular witnesses. But any view formed by a judge of the Supreme Court would not merely not be binding upon the Tribunal, it would be irrelevant to the Tribunal’s exercise of its function in assessing the evidence before it. The same would be true if the Tribunal made findings which preceded those of the Supreme Court. Further, there is no basis in law for the Commission to be bound by factual findings made by a judge in proceedings to which it was not (and could not be) a party. Proposed grounds 2 and 3 are therefore misconceived.

16. The proposed grounds of appeal do not demonstrate error of law on the part of the Tribunal. In refusing a stay, the Tribunal did not misconceive its function, nor did it fail to have regard to relevant matter or misunderstand the relationship between the findings it might make and those which might be made by the Supreme Court in the proceedings dealing with the validity of the wills and the appointment of the practitioner as executor. If anything, the finding of the Tribunal in the passage referred to in ground 2 overstated the possible impact of findings made in one proceeding in the other. None of the grounds, even disregarding the requirement for error of law, identified a basis upon which this Court should intervene in a matter of interlocutory practice and procedure. For that to occur, there would need to be clear error of principle causing demonstrable unfairness to the applicant. No such unfairness has been demonstrated, whether in law or otherwise.

17. In these circumstances, the Court makes the following orders:

1. Dismiss the summons seeking leave to appeal.

2. Dismiss the notice of motion filed on 10 August 2021.

3. Order that the practitioner pay the Commission’s costs in this Court.

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Endnotes

Amendments

14 September 2021 - [14] Insert "not" after "the practitioner had" and before "crossed professional boundaries"

Decision last updated: 14 September 2021