King v Health Care Complaints Commission
[2011] NSWCA 143
•30 May 2011
Court of Appeal
New South Wales
Case Title: King v Health Care Complaints Commission Medium Neutral Citation: [2011] NSWCA 143 Hearing Date(s): 30 May 2011 Decision Date: 30 May 2011 Jurisdiction: Before: Macfarlan JA
Decision: Orders made by the Medical Tribunal on 5 May 2011 stayed until further order.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: PROCEDURE - civil - application for stay pending appeal from decision of Medical Tribunal of NSW - applicant offered to give undertaking to the Court not to practice or hold himself out as a medical practitioner until further order of the Court - stay of deregistration order granted
PROCEDURE - civil - appeal from decision of Medical Tribunal of NSW - application for non-publication order - applicant's identity previously published on respondent's website in accordance with statutory obligations - whether order necessary to secure the proper administration of justice in the proceedings
Legislation Cited: Civil Procedure Act 2005
Health Care Complaints Act 1993
Health Practitioner Regulation National Law (NSW)Cases Cited: Bannister v Walton [1992] NSWCA 21
Texts Cited: Category: Procedural and other rulings Parties: Dr Victor King (Applicant)
Health Care Complaints Commission (Respondent)Representation - Counsel: Counsel
J P Gormly SC (Applicant)
K Eastman/T Davy (Respondent)- Solicitors: Solicitors
Holman Webb Lawyers (Applicant)
Health Care Complaints Commission (Respondent)File number(s): CA 2011/171615 Decision Under Appeal - Court / Tribunal: - Before: Murrell SC DCJ; Dr K Kertesz; Dr G Yeo; Dr C Berglund, PHD - Date of Decision: 05 May 2011 - Citation: Health Care Complaints Commission v Dr Victor King - Court File Number(s) 40017/10 Publication Restriction:
Judgment
HIS HONOUR : On 5 May 2011 the Medical Tribunal of New South Wales found Dr Victor King, who is the applicant in the proceedings presently before me, guilty of professional misconduct. The Tribunal ordered that he be deregistered as a medical practitioner, and that he not make an application for reinstatement for a period of 18 months. On application made by Dr King, the Tribunal on the same day varied its orders to provide that deregistration would not take place for a period of 28 days, that is, not until 2 June 2011.
The Tribunal summarised its conclusions as follows:
"The established particulars of complaint show that, over a period of seven months from October 2007 to April 2008, the practitioner engaged in inappropriate sexual conduct towards three young female patients. The behaviour included inappropriate questioning about the patients' sexual behaviour, stroking the arm of patient C in an intimate way and offering to perform Pap smears. The most serious misconduct involved the practitioner moving his finger I and out of the vaginas of two patients. Apart from sexual impropriety, the practitioner demonstrated a low level of competence in relation to treatment of patient C's right wrist injury, and kept inadequate records in relation to patients B and C" (Judgment [56]).
On 25 May 2011 Dr King filed a Notice of Appeal challenging the Tribunal's decision. This was filed under s 162(1) Health Practitioner Regulation National Law (NSW) (the "National Law"). The grounds of appeal were stated in the Notice in such general terms that they provide little, if any, assistance in identifying the issues sought to be raised on the appeal. Those grounds accordingly require restatement.
Presently before me is a Notice of Motion pursuant to which Dr King seeks a stay of the Tribunal's orders pending determination of his appeal and seeks an order prohibiting or restricting publication of his identity as a party to the proceedings. An order for expedition that he also sought has already been made and the appeal has been fixed for hearing on 26 July 2011.
Of particular significance in relation to Dr King's application for a stay is the fact that he has offered to give an undertaking to the Court not to practice, or hold himself out, as a medical practitioner until further order of the Court. He earlier gave a similar, although qualified, undertaking to this effect when the Tribunal gave its decision on 5 May 2011.
The offering of this broad and unqualified undertaking distinguishes the present case from a number of decisions to which I was referred in the course of the argument (see Bannister v Walton [1992] NSWCA 21; Robb v Law Society of the Australian Capital Territory [1996] FCA 1571; Sinha v Health Care Complaints Commission [2001] NSWCA 48; and Gad v Health Care Complaints Commission (NSW Court of Appeal, Ipp JA, 26 November 2001, unreported).
Notwithstanding Dr King's proffering of this undertaking, the respondent Health Care Complaints Commission opposes the grant of a stay of the Tribunal's orders. In doing so it does not suggest that there is any risk, of which account should be taken, that Dr King would not adhere to the proffered undertaking. It accordingly does not suggest that the public might be prejudiced by any conduct of Dr King pending determination of the appeal.
Instead the Commission contends that the grant of a stay would be prejudicial to the medical disciplinary system by indicating that orders of the Tribunal are likely to be stayed automatically, or virtually so, if an appeal is lodged. The implication from this submission, as I understood it, was that the status and effect of the Tribunal's orders and findings would be diminished.
I do not accept this submission. In my view the interests of the public are well and sufficiently protected by the undertaking that has been proffered. The fact that it has been proffered is a recognition of the very serious character of the Tribunal's findings and the inappropriateness of Dr King practising whilst these findings stand.
However as Dr King is prepared to give an appropriate undertaking, there is in my view no reason why Dr King's deregistration should take effect before he is able to exercise fully the right of appeal that the National Law confers upon him. I do not consider that any reasonable member of the public who knew that Dr King had a right of appeal and that he would not be practising until his appeal was determined would regard deferral of Dr King's deregistration as reflecting adversely on the medical disciplinary system or upon the Tribunal's findings or orders.
In these circumstances the just result in my view is that the status quo should be preserved pending the appeal. Although, if Dr King is successful on his appeal, this Court's orders will reverse the deregistration order of the Tribunal, I consider that it will be of benefit, albeit slight, to Dr King for him to be able to say without hesitation or doubt, to those to whom it may be of concern or interest, that he has not at any time been deregistered. If this possibility can be preserved without, as I consider to be the case, any prejudice to the public interest then that should occur.
It has not been necessary for the purposes of me reaching this conclusion to form any view about the merits of Dr King's appeal other than to conclude, as I do based upon the oral submissions that were made to me on his behalf, that it is not an obviously frivolous appeal.
On the second aspect of this application, I do not accept Dr King's argument that a non-publication order should be made. Such an order may be made under s 72 Civil Procedure Act 2005 only where it is "necessary to do so to secure the proper administration of justice in the proceedings".
It is sufficient here to note that the Tribunal declined to make a non-publication order at the commencement of the proceedings before it and that in accordance with the obligation imposed upon it by s 94B Health Care Complaints Act 1993 the respondent Commission made details of the decision publicly available on its web site.
It is unlikely that the effect of this publication can be reversed and in any event no good reason has been shown for requiring the Commission to attempt to do so.
For these reasons and upon Dr King giving the undertaking referred to in [5] above, I stay until further order the orders made by the Medical Tribunal on 5 May 2011 and decline to make any order for non-publication in relation to Dr King's involvement in the proceedings.
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