Barich v Health Care Complaints Commission

[1999] NSWCA 444

CITATION:	Barich v Health Care Complaints Commission [1999] NSWCA 444
FILE NUMBER(S):	CA 40448/99
HEARING DATE(S):	30 November 1999
JUDGMENT DATE:	30 November 1999
PARTIES :	Appellant- Dr Antwan Barich Respondent- Health Care Complaints Commission
JUDGMENT OF:	Meagher JA at 1; Beazley JA at 8; Hodgson CJinEq at 9

LOWER COURT JURISDICTION:	Medical Tribunal
LOWER COURT FILE NUMBER(S) :	40022/98
LOWER COURT JUDICIAL OFFICER:	Medical Tribunal

COUNSEL:	Appellant- Mr C A Porter QC / E Pike Respondent- A Katzmann SC
SOLICITORS:	Appellant- L.M.Mallon Respondent- Health Care Complaints Commission
CATCHWORDS:	Medical Tribunal; Relevance of cross-examination; Bias of examinor
DECISION:	Dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40448/99

MEAGHER JA
BEAZLEY JA
HODGSON CJ in Eq

TUESDAY 30 NOVEMBER 1999

DR ANTWAN BARICH v HEALTH CARE COMPLAINTS COMMISSION

JUDGMENT

1   MEAGHER JA: This is an appeal by Dr Barich from a decision of the Medical Tribunal. The Tribunal found that on 13 September 1996 the doctor hugged, kissed and placed his hand on the groin of one of his female patients. That is the conduct which led to his deregistration.

2   His case was that he could not remember anything about that particular incident. He could not remember the patient coming to see him that day and he could not remember what happened between him and the patient. In other words as Mr Porter, QC, learned senior counsel for the appellant said, it was a case of patient against doctor, word against word.

3   The attitude of the doctor in stating that he could not remember the incident, seemed both to the Health Care Complaints Commission and to the Tribunal such an extraordinary attitude that considerable time was spent in testing the accuracy of the assertion. The transcript shows that Mr Porter cross-examined the complainant for about thirty pages of transcript and that Ms Katzmann cross-examined Dr Barich for a similar number of pages. One of the members of the Tribunal, Dr Giuffrida, cross-examined, if that is the correct word, the doctor for about half that time, for about sixteen pages, and it is his behaviour in this regard to which Mr Porter takes objection. The objections seem to be these. One is that the length of the questioning was unnecessary. Two that there was hostility in Dr Guiffrida's questioning. Thirdly, that it was largely irrelevant and fourthly that there is no possible explanation of that combination of circumstances except that Dr Giuffrida was hostile to Dr Barich because of his foreign background.

4   As to irrelevance, I think there is a good deal to be said for Mr Porter's complaint. Dr Giuffrida did seem to ask a lot of questions about Dr Barich's past history overseas which does not seem to me relevant. He asked other questions about how he conducted his practice on the financial side which seems to me equally irrelevant. He asked questions about the doctor's failure to acquire post registration qualifications which had nothing to do with the case and he criticised the standards of the medical records of the practice which again seems to me irrelevant. Mr Porter was perfectly correct in my view to complain that the doctor was charged with sexual misconduct, not with negligent treatment or inadequate records.

5   On the other hand there is in my view nothing whatever to suggest that there was any racial motivation in Dr Giuffrida's attitude, nor I must confess reading the sixteen pages in question, do I find any evidence of hostility. It is I think true that the doctor was ultimately trying to make the point that the doctor must have had a recollection of what occurred on the relevant date.

6   To sum up, it seems to me that Dr Giuffrida conducted a mildly inquisitive, sometimes irrelevant wide ranging and perhaps over lengthy questionnaire but in my view not sufficient to give a fair minded observer any notion of apprehended bias. I might add that Mr Porter represented Dr Barich before the Tribunal as he has done in this Court, and he did not significantly object to any of the questions of Dr Giuffrida which in retrospect might seem objectionable. That must amount in my view to a waiver on that point. The other point which has been made is that Dr Giuffrida, three or four years before this, did occasionally provide an independent opinion to the Tribunal on questions of professional standards and behaviour. That fact taken on its own, does not lead to any suggestion of bias in my view, nor do I think it led to a situation where Dr Giuffrida was bound to disclose that to Dr Barich in the hearing of the case, in case there was an application that he should disqualify himself.

7   For those reasons I am of the view that the appeal fails and the summons should be dismissed with costs. 8   BEAZLEY JA: I agree. 9   HODGSON CJ IN EQ: Yes I agree.

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