Fernando v Medical Practitioners Board

[2003] VSC 151

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5353 of 2003

NEVILLE FERNANDO	Plaintiff
V
MEDICAL PRACTITIONERS BOARD	Defendant

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JUDGE:	BONGIORNO J J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 April 2003
DATE OF JUDGMENT:	14 April 2003
CASE MAY BE CITED AS:	Fernando v Medical Practitioners Board
MEDIUM NEUTRAL CITATION:	[2003] VSC 151

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Injunction – interim injunction – suspension of medical registration – balance of convenience – undertaking given in support of balance of convenience

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Ruskin QC with Mr M. Wheelahan	Tress Cocks & Maddox
For the Defendant	Ms F. McLeod	Minter Ellison

HIS HONOUR:

1. This is an application by Dr Neville Fernando for interlocutory relief in respect of an order made by the Medical Practitioners' Board of Victoria on 3 April 2003 on that date it suspend his medical registration pursuant to s.27(1) of the Medical Practice Act 1994 effective from 5 p.m. on Friday 4 April 2003.  Dr Fernando filed as an Originating Motion in this Court  raising the question of the legality of the Board's decision.

1. There is a history to Dr Fernando's dealings with the Board which it is not necessary to go into other than to say that the recent decision was made, it would appear, on the basis of a decision of the Medical Complaints Tribunal of Tasmania of 27 March 2003 in which it found the plaintiff had engaged in conduct which warranted a finding of misconduct of one kind or another against him in respect of events which occurred some 7 years ago.

1. In the circumstances and having regard to the fact that on Thursday of this week, 17 April, the Board will consider submissions by Dr Fernando as to why his registration should not continue to be suspended, the fact that a holiday period is approaching and the fact that it would appear that there would be little or no danger to the public in Dr Fernando continuing to practice if such practice excluded female patients, I am prepared to grant an interim injunction to prevent the Medical Practitioner's Board acting upon its order suspending him.  I am prepared to grant that interim relief to run until 4.15 p.m. on Wednesday 23 April 2003.

1. In the meantime, the Medical Practitioners' Board of Victoria will have the opportunity of conducting the hearing it was proposing on Thursday 17 April and considering any submissions Dr Fernando might make at that time.  On 23 April the Court will consider whether it is appropriate to extend the interim injunction such that it becomes an interlocutory injunction and runs until the trial of the originating motion or whether it should be discharged.  To that end it will hear, of course, the Medical Practitioners' Board of Victoria who has been or will have been served by them.

1. Accordingly, upon the undertaking given by the plaintiff through his counsel that during the period of the interim injunction he will not treat any female patient, the order of the Court is that until 4.15pm on 23 April 2003 the operation of the decision of the defendant made 3 April 2003, to the extent that the defendant suspended the plaintiff’s medical registration pursuant to section 27(1) of the Medical Practice Act 1994, be suspended.

1. A further application on behalf of Dr Fernando that the Board provide reasons for its decision to suspend his registration, such application being either in the inherent jurisdiction of the Court or pursuant to the Administrative Law Act (1978), is refused. The Act gives the Board the right to give reasons within a certain time if requested. It does not, in terms require peremptory reasons and it would be inappropriate for me, at this stage, to make such an order.

1. I will reserve the costs and add an order that pursuant to RSC r 60.04, this order be drawn up by the solicitors for the plaintiff and signed by a Judge.

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