Gorman v Health Care Complaints Commission

[2000] HCATrans 220

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S183 of 1999

B e t w e e n -

RICHARD FRANCIS GORMAN

Applicant

and

HEALTH CARE COMPLAINTS COMMISSION

First Respondent

MEDICAL BOARD OF NSW

Second Respondent

DR D. CHILD

Third Respondent

DR P. McCLUSKY

Fourth Respondent

MS L. NAPIER

Fifth Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 MAY 2000, AT 2.28 PM

Copyright in the High Court of Australia

_________________

DR R.F. GORMAN appeared in person.

MR J. BASTEN, QC:   I appear for the first respondent, if the Court pleases.  (instructed by Health Care Complaints Commission)

GAUDRON J:   The Deputy Registrar certifies that she has been informed by the solicitor for the second, third, fourth and fifth respondents that they do not wish to be represented at the hearing of this application and that they will submit to any order of the Court, save as to costs.  Yes, Dr Gorman.

DR GORMAN:   Your Honours, the matter started in the Supreme Court as a summons which was finally filed on 24 August 1998 and it was an action which is defined - that I felt that the courts in which I was in, namely the Professional Standards Committee of the Medical Board and the Medical Tribunal, the next court after the Medical Tribunal if it went to that, were unfair courts in my case because my action was about the philosophy of medicine and here we had a court that had a fixed position on that philosophy so that there was no way that I was going to get a fair hearing in that court.

Accordingly, I filed my summons asking, initially, for the hearing to be heard in the Medical Tribunal.  The reason for that was that if the Medical Tribunal reviews a decision from the Professional Standards Committee there is no right of review beyond the Medical Tribunal and that means that if I started in the Professional Standards Committee and I went on in review to the Medical Tribunal I could not ever get review in a court where there was not the ambient medical philosophy predominating.

GAUDRON J:   We can understand that, tactically, there may be some advantage in the course that you wish to pursue but the question is does the law give you the right to have - - -

DR GORMAN:   No, I was going on to that, your Honour.  So, quite rightly, Justice Dunford said that there was no ground that statute prevented the hearing from the hearing in the Professional Standards Committee from being heard in the Supreme Court and he did not allow me to go into the Medical Tribunal primarily.  I accept that, your Honour.  That is the law.  I accept the law.

Justice Dunford said at page 13 of the application book at line 10 that there was “no ground” for:

any other form of prerogative, declaratory or administrative relief –

whereas I had asked him for assistance there and in this action the relief which I wish to seek from your Honours or from the Court, from the High Court, is that peer advice or expert witnesses’ advice which was published by the first defendant in defiance of the statutes which protect its confidentiality be excluded from the impending Professional Standards Committee hearing.

GAUDRON J:   Did you ask Justice Dunford to do that?

DR GORMAN:   I asked for prerogative relief and we certainly discussed this.

GAUDRON J:   On what basis, with respect to the exclusion of evidence?

DR GORMAN:   I certainly asked for help, your Honour, in terms of prerogative relief.

GAUDRON J:   Dr Gorman, the courts are not here to help, I am afraid.

DR GORMAN:   No, no.  Anyway, the error of law that was here was that there was a conflict between two things, the confidentiality of the Professional Standards Committee, like section 190 of the Medical Practice Act of 1992 states that:

A person must not disclose any information obtained in connection with the administration or execution of this Act unless the disclosure is made…..

(b) in any other case ‑ with the consent of the person from whom the information was obtained -

Section 37 of the Health Care Complaints Act 1993, 105, states:

If a person discloses information obtained in exercising a function under this Division and the disclosure is not made:

(a) with the consent of the person to whom the information relates…..that person is guilty of an offence.

Section 176 of the Medical Practice Act of 1992, No 94, states:

A Committee is not to direct that its proceedings are to be open to the public unless satisfied that it is desirable to do so in the public interest for reasons connected with the subject‑matter of the proceedings or the nature of the evidence to be given.

So those various statutes say that what is going on in the Professional Standards Committee is private.  Then we have, during the course of the Professional Standards Committee hearing, during the course of the Supreme Court hearing, we have the first defendant publishing in her magazine, which she has control of, all the evidence, the confidential evidence from the court.  It has all yet to be presented, never ever been presented to the court.

GAUDRON J:   Has it yet been presented?

DR GORMAN:   No, had not been presented.

KIRBY J:   That is because of these proceedings, is it not?

GAUDRON J:   Then is not your application somewhat premature?

DR GORMAN:   No, what I am saying to you – the thing is that this evidence has already been presented to the public.  Now, normally, witnesses - and Judge Dunford, he said, on page 18 lines 40 to 50, this is in the transcript, page 19 at lines 1 to 34 – 18 and 19, going on from one page to the next:

I see no reason for believing there is any prospect that that information will influence the members of the PSC who are under an obligation to consider only the complaints that are directly before them.

I am sure the members of the Professional Standards Committee are very adult and would be totally capable of putting it aside but that is incomplete.  See, the Professional Standards Committee would have no idea of the lies that were told by the first defendant.  The first defendant said in the publication that there were six other complaints pending against me.  My complaints about the publication are in the ‑ ‑ ‑

GAUDRON J:   The first respondent, I take it, is not a member of the Medical Board.

DR GORMAN:   No.

GAUDRON J:   The Professional Standards Association.

DR GORMAN:   The Professional Standards Committee is the prosecutor, as it were, your Honours.

GAUDRON J:   No, well she is the prosecutor.

DR GORMAN:   She is the Health Care Complaints Commission.

GAUDRON J:   Yes, and who constitutes the Professional Standards Committee?

DR GORMAN:   It is made up of two doctors and a lay person.

GAUDRON J:   But it does not include the first respondent?

DR GORMAN:   No, the first respondent is the prosecutor.  They are the ones to present the evidence.  They assist the Committee.

GAUDRON J:   But the Committee makes the decision?

DR GORMAN:   The Committee makes the decisions.  So there we have the evidence that was taken in confidence and in breach of the statute that prevents its confidentiality, the first respondent published it in a magazine.  Not only did she publish it in a magazine, she gave it out at a meeting of Health Care Complaints commissioners in Hobart.  I am saying you cannot have the evidence being promulgated before the trial.

GAUDRON J:   I mean, if somebody has committed an offence, then there are procedures for dealing with it.  This is a proceeding that started in the administrative law division.  If there are reasons to think that the Committee is not properly constituted or something of that nature, then there may be a basis for intervening but this is strictly an administrative law question that you have raised.

DR GORMAN:   No, with respect, your Honour.

GAUDRON J:   Well, it was all you could raise.

DR GORMAN:   With respect, your Honour, there was the discretion of the judge.  He had to make a decision which one he was going to accept.  He said this information was published.

GAUDRON J:   Yes.

DR GORMAN:   And he made a decision which he gave priority to that the ‑ ‑ ‑

GAUDRON J:   What could he have done?  What did you ask him to do in relation to – see, it appears at page 18:

the Commission had breached its own rules –

by publication –

which referred to six complaints against a person who to anyone –

da da da, would recognise to be you.  Now what is it you say the court, in exercising its power, its administrative division powers should have done?  What was the relief you sought?

DR GORMAN:   What should have happened – whether it was what I asked for or not, I cannot remember but I certainly expected the court to rule that that information should never have been published.

GAUDRON J:   But it cannot do that.  That can be done – if there has been an offence committed there are procedures for dealing with it.  You were not prosecuting for an offence.  You were seeking relief in the administrative decision – in the administrative division of the court relating to the proceedings.

DR GORMAN:   I specifically asked the court for prerogative relief and ‑ ‑ ‑

GAUDRON J:   Yes, prerogative relief does not lie simply to make decisions in the air that this should not have been published.

DR GORMAN:   All right.  Well, your Honour, I certainly complained to the court that it should not have been published.  Maybe I did not specifically ask for the matter to be ‑ ‑ ‑

GAUDRON J:   But even if you had asked for it, prerogative relief does not lie simply to say this should not have been published.

DR GORMAN:   Well, it certainly should not have been published, your Honour.

GAUDRON J:   You say it certainly should not have been published, maybe you are right, maybe you are wrong, but what consequences flow from it?  One, if you are right, an offence has been committed.  That is dealt with by another area of the law.  If you are wrong, no offence has been committed and nothing follows.

DR GORMAN:   The precedent is, your Honour, that they do not leave witnesses in the court.  Witness are not allowed to come into the court until the evidence has been presented in order that they do not adjust their testimony according to fit with what they have heard in the court.  That is the standard.  Here we have the first respondent publishing the evidence and obviously inviting the witnesses yet to come, to change their evidence to fit with these acknowledged experts.  I think that was unfair.

KIRBY J:   Was one objection that you were raising that because of the publication of this document, that no member of the committee would be unbiased?

DR GORMAN:   No, I am saying that they would not know, your Honour, what affect that publication had on witnesses that were to come before them.

KIRBY J:   But is it not the time, if anywhere, to take that sort of objection when the witnesses come?  You see as a result of all these proceedings and side issues that have been debated in the Supreme Court, the substantive proceedings have been delayed.  That is the fact of the matter, is it not?

DR GORMAN:   They are delayed reasonably, your Honour.  I mean, that is what the Court ‑ ‑ ‑

KIRBY J:   I am not saying that, but the fact is that they were delayed.

DR GORMAN:   Yes, there has been a delay.

KIRBY J:   I mean as far as anyone knows, when the witnesses come forward, or members of the Tribunal are constituted, they may never have seen this document, never heard of it.

DR GORMAN:   If we take the crime ‑ ‑ ‑

KIRBY J:   Then we are being involved in a purely hypothetical problem.

DR GORMAN:   That was the same in the Crimes Act thing that was advertised in the paper this morning, your Honour, where the judge did not know whether the witness had read it, he did not know whether the jurors had seen it, but he stopped the court case.  So how am I different from him?

KIRBY J:   That is a different consideration; that is a question of jury trial.

DR GORMAN:   Still, I think it is the same, your Honour.  It does not seem right to me that they should be able to tell lies about me in public, they should be able to present evidence they have got in confidentiality, in breach of three Acts, and then there is no relief for me in this Court.

KIRBY J:   As Justice Gaudron said, if there is an offence, there are ways in which you can prosecute an offence for breach of the Act.  But it is not a proper procedure to take the proceedings that you have in the Supreme Court.  Justice Dunford held that and Justice Sheller and Justice Stein, reviewing the matter, said that there just was no merit whatever in your application.  You are now challenging their order, because we are reviewing the Court of Appeal.  It just seems to me that the Court of Appeal were right.  You may have a general objection to what has happened and a feeling of unfairness and so on, but that is not what the law is there to solve.  The law is there to solve a legal mistake, or legal error, or wrong.

DR GORMAN:   There is this problem about justice and the law not being the same.  I think there is a terrible precedent here that this Court, I mean that somehow that the Court thinks it is reasonable for the first respondent to publish ‑ ‑ ‑

GAUDRON J:   It is not a question of what we think is reasonable or unreasonable.  It is a question of what courts can do in relation to the proceedings that have been instituted.  My opinion as to whether the publication was reasonable or unreasonable is immaterial to any question.  The law says that in certain circumstances it is an offence, in other circumstances it is not.  If it is an offence, then there may be - if you wish to pursue that course, then so be it.  But the question is, really, your initial application was to have the matter transferred to the Supreme Court.  It could not be done.  Alternatively, have it heard by the medical board and somewhere at the end you raised this matter of the publication.  One could understand that, in terms of administrative law proceedings, if it were directed to the question whether you were going to obtain procedural fairness or a proper hearing or an unbiased hearing - - -

DR GORMAN:   That is exactly what I did, your Honour, surely.

GAUDRON J:   I do not know, you do not say that because we have asked you before, are any of these – we do not even know that these people have read it.

KIRBY J:   And in any case, it is premature.  The time to take that objection is if, when the Tribunal assembles, you are of the view that they may have been affected.  If they have never heard of it, how can they be affected?

DR GORMAN:   Again, your Honour, I will not press it, but it seems to me there is very little difference between what happened in the Crimes Act thing and the court stopping an action ‑ ‑ ‑

KIRBY J:   We have not passed on the Crimes Act ‑ ‑ ‑

DR GORMAN:   No, I know, I understand that, but it is the same principle involved, that the judge in Melbourne said, “I will not go ahead with this trial because there is a possibility that these people would do it”.  All I am asking for is this evidence which these people….., in fairness to me, it should be taken out.  It should not be allowed to now be proceeded with having been publicly promulgated and discussed outside.  Your Honour, I will stop now because obviously it looks as though I am not able to convince your Honours.

GAUDRON J:   Thank you, Dr Gorman.

As you correctly surmised, we can see no error of principle either in the decision of Justice Dunford or in the approach taken by Justices Sheller and Stein in the Court of Appeal.  Accordingly, special leave is refused.  The matter having been the subject of written submissions, it will be refused with costs.

Call the next application.

AT 2.48 PM THE MATTER WAS CONCLUDED