Lindsay v Health Care Complaints Commission

[2004] NSWCA 222

CITATION:	LINDSAY v HEALTH CARE COMPLAINTS COMMISSION & ANOR [2004] NSWCA 222
HEARING DATE(S):	24 June 2004
JUDGMENT DATE:	24 June 2004
JUDGMENT OF:	Mason P at 1; Santow J at 58; Pearlman AJA at 60
DECISION:	Summons dismissed with costs.
CATCHWORDS:	Medical Practice Act 1992, s36 - unsatisfactory professional conduct - seeking order of certiorari quashing decision of Medical Tribunal - whether decision vitiated by lack of procedural fairness - Parker warning - consent to orders made by Tribunal (ND)
PARTIES :	Dr David Charles LINDSAY v HEALTH CARE COMPLAINTS COMMISSION & MEDICAL TRIBUNAL OF NSW
FILE NUMBER(S):	CA 40847/03
COUNSEL:	Claimant: J Conomos / R Marshall 1st Opponent: J Basten QC/ SA Beckett 2nd Opponent: Submitting appearance
SOLICITORS:	Claimant: Kelvin Solari 1st Opponent: Health Care Complaints Commission 2nd Opponent: IV Knight, Crown Solicitor

LOWER COURTJURISDICTION:	Medical Tribunal of New South Wales
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	McGuire J (Deputy Chairperson)

CA 40847/03

MASON P
SANTOW JA
PEARLMAN AJA

Thursday 24 June 2004

Dr David Charles LINDSAY v HEALTH CARE COMPLAINTS COMMISSION & Anor

JUDGMENT

1 MASON P: The Health Care Complaints Commission made a Complaint to the Medical Board of New South Wales against the claimant, Dr Lindsay who is a licensed medical practitioner. It related to his treatment of a patient in January 1998. The Complaint included allegations about the claimant’s medical records system and the infection control standards at the claimant's professional rooms. It was contended that the medical practitioner had been guilty of unsatisfactory professional conduct within the meaning of s36 of the Medical Practice Act 1992 (the Act).

2 The Complaint was referred to a Professional Standards Committee that embarked upon an inquiry pursuant to s167 of the Act. After four days of hearing the Committee found the Complaint proven in several particulars. On 23 July 2001 the Committee published its Reasons. It also made Orders as follows:

1. The Committee has decided to reprimand Dr D C Lindsay pursuant to Section 61(1)(a) of the Act.
2. That pursuant to section 62(1) of the Act, the Committee imposes a fine on Dr Lindsay in the amount of [30] penalty units (representing a sum of $3,300) payable within 90 days from the date of this decision.
3. That pursuant to section 61(1)(c) of the Act, the following conditions be imposed upon Dr Lindsay’s registration:
(a) Dr Lindsay maintain a record of all surgical procedures he performs in a form approved by the Board to be reviewed by an Auditor appointed by the Board at 6 monthly intervals for a period of two years. That Dr Lindsay authorise the Auditor to report to the Board on any relevant matters. The costs of any subsequent reports to be borne by Dr Lindsay.
(b) Dr Lindsay to submit to a random Audit of his medical records to monitor compliance with Schedule 2 of the Medical Practice Act Regulations 1998 within three months from the date of this decision and subsequently as required by the Board. Dr Lindsay is to authorize the Auditor to prepare a report on his/her findings. Dr Lindsay is to meet all costs associated with the random audit and any subsequent reports.
(c) The Board arrange an inspection of Dr Lindsay’s premises within 12 months from the date of this decision to determine their compliance with the standards necessary for the excision of skin lesions requiring more than simple closure and to report back to the Board’s Conduct Committee. Dr Lindsay is to meet all costs associated with the inspection and any subsequent report.
(d) That Dr Lindsay authorize and consent to the release of information between the Health Insurance Commission and the Board where necessary to facilitate monitoring of compliance with these conditions.

3 The claimant appealed to the Medical Tribunal pursuant to s87(1). The appeal was filed on 23 August 2001 and came on for hearing on 25 November 2002. The Tribunal was constituted by a Deputy Chairperson, Judge McGuire and three members, Dr Pasfield, Dr Phillipson and Ms Berglund Ph D. Section 87 relevantly provides:

(4) The appeal is to be dealt with by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the inquiry, may be given.
(5) The Tribunal may:
(a) dismiss the appeal, or
(b) make any finding or exercise any power or combination of powers that the Tribunal could have made or exercised if the complaint had been originally referred to the Tribunal.
(6) An appeal under this section does not affect any finding or exercise of power with respect to which it has been made until the Tribunal makes an order on the appeal.

4 The appeal was effectively conducted as a fresh hearing. The Commission presented its evidence first, calling lay and expert witnesses. It closed its case at the end of the third day, 27 November 2002. The claimant then gave evidence and was cross-examined. The cross-examination was incomplete at the end of the fourth day, 28 November 2002.

5 When the hearing resumed on Friday 29 November, the Deputy Chairperson raised what he called "an important matter" with the claimant's counsel, Mr Conomos. What was said was this :

DEPUTY CHAIRPERSON: Mr Conomos, as you are aware, this is a de novo hearing before this Tribunal. As you are further aware, this Tribunal can exercise certain powers. Those powers might be entirely different from those exercised by the committee. The evidence hasn’t concluded. The Tribunal hasn’t heard submissions but on the state of the evidence as it presently stands, and if it was to remain unaltered and the committee’s views be influenced by such evidence as may fall, there is a substantial prospect that this Tribunal would exercise its powers in the interests of protection of the public and may impose a far more substantial fine. In particular, it may impose restrictions and conditions on the practitioner far more stringent than were imposed by the committee. It may also be that the Tribunal would consider lodging its own complaint.
Now I appreciate Mr Conomos, Mr Beckett, that the evidence hasn’t finished. There may be evidence which will emerge which will put an entirely different complexion on this appeal and my remarks are predicated upon the state of the evidence as it presently stands. I feel it only fair to the practitioner that he be put clearly on notice that there are substantial prospects that more stringent orders may be made and [sic] were made by the PSC.
The Tribunal will adjourn and you of course are released from normal prohibitions about discussing the matter with your client during the course of his cross-examination. Would you please take instructions Mr Conomos? If you are in any doubt as to what I’m talking about, let me know because I want the practitioner to be completely aware of the possibilities, or the probabilities actually, that might ensue.
CONOMOS: I took down every word, as you saw. This is a Parker warning. If anybody knows about those things I do, without being immodest, so I want some time.
DEPUTY CHAIRPERSON: Yes.

6 Mr Conomos' recognition of a "Parker warning" was a reference to this Court's decision in Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. That case discussed the duty of a Judge of the District Court hearing an all grounds appeal under s122 of the Justices Act 1902, as it then stood, to disclose if he or she was contemplating imposing a harsher sentence than that imposed in the Local Court in the event that the appeal to the District Court was dismissed.

7 A short adjournment was granted to Mr Conomos to obtain instructions.

8 Immediately after the adjournment Mr Conomos indicated that he had been instructed to withdraw the appeal. Discussion ensued as to whether this could be done without the leave of the Tribunal. Counsel representing the Commission observed (at CB 433Q) that if the Tribunal acceded to the application that the appeal be withdrawn then it would lack jurisdiction to make its own orders with respect to the claimant. Mr Beckett continued:

The instructions I've received in the break are essentially that, as the Tribunal has already expressed, the complainant is also concerned about the protection of the public and especially following the doctor's evidence and demeanour in the witness box yesterday. The position of the complainant is that the orders that were made by the Professional Standards Committee are inadequate, especially after yesterday, and that the complainant would seek more stringent orders in relation to Dr Lindsay.

9 There was some discussion on the following page (CB 434), in which Mr Beckett hinted at expanding the complaint to include one of impairment. There was reference to Sch 2 cl 5 of the Act, to which I shall return, but ultimately there was confirmation (at 434T) that the basis of the Commission’s opposition to a simple withdrawal of the appeal was concern about the protection of the public arising from a number of matters, particularly the evidence given by the doctor.

10 During the discussion there was reference, both by the Deputy Chairperson and by Mr Beckett representing the Commission, to the Tribunal's power to prefer additional complaints. Schedule 2, clause 5 of the Act provides:

(1) A Committee or the Tribunal may in proceedings before it deal with one or more complaints about a registered medical practitioner.
(2) If, during any such proceedings, it appears to a Committee or the Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the practitioner concerned:
(a) whether instead of or in addition to the complaint which was made, and
(b) whether or not by the same complainant,
the Committee or the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.
(3) If another complaint is taken to have been referred to a Committee or the Tribunal under subclause (2), the complaint may be dealt with after such an adjournment (if any) as is, in the opinion of the Committee or the Tribunal, just and equitable in the circumstances.

11 The Deputy Chairperson also raised with Mr Beckett the question whether there was any problem with the appeal being withdrawn and the orders of the Tribunal being couched in the same terms as the orders made by the Committee. Mr Beckett said that he was concerned about the jurisdiction of the Tribunal to make those orders if the application for the appeal to be withdrawn was consented to. There was also the following exchange:

BECKETT: … I’m reminded there has been a dispute about one of those orders specifically.
CONOMOS: Your Honour, with great respect to my friend has a lot of licence here and that’s not right. It is one thing he can comment about doctor’s evidence yesterday and his demeanour but it’s another to be going into his evidence.
DEPUTY CHAIRPERSON: Yes, keep going Mr Beckett. What are you telling me?
BECKETT: The issue, I wasn’t saying that it’s been determined one way or another, but there has been a dispute between the Medical Board and Dr Lindsay about a particular power under the orders given by the PSC specifically. Provision are made about orders to inspect his premises.
DEPUTY CHAIRPERSON: We know nothing about that but assuming that is so, isn’t there some mechanism whereby that can be tested as to who is correct?
BECKETT: Yes, that is true.
DEPUTY CHAIRPERSON: So if there is such a dispute, how does that concern us? Or does it?
BECKETT: Well, a compliant can be laid, a further complaint could be laid if the HCCC ----
DEPUTY CHAIRPERSON: Exactly.
BECKETT: But none has been laid, as I understand it.

12 When the Deputy Chairperson said “We know nothing about that” he was, as I read it, indicating that there was no material formally before the Tribunal on that issue. This remark and the whole discussion I have just quoted was an allusion to what had happened earlier (at CB 359).

13 Shortly before the claimant gave oral evidence before the Tribunal a witness statement was tendered. Mr Beckett object to paras 25 – 28 of that statement stating:

Those matters relate to a dispute between the Medical Board and Dr Lindsay about the breach of certain orders made by the Professional Standards Committee in this matter.

14 Mr Conomos indicated that those paragraphs were not pressed on the basis that the matter was not relevant and the Deputy Chairperson ruled that he would put his pen through those paragraphs. The relevant portion of the witness statement has been placed before us. The paragraphs are headed Information Subsequent to Making of Order by Professional Standards Committee and they do no more than exhibit various documents, one of which is a copy of a statutory declaration of Mr Dix dated 17 May 2002 to which reference will later be made.

15 This statement of the claimant was undoubtedly part of the file in the matter before the Tribunal. It may or may not have been perused by the Members of the Tribunal in anticipation of the hearing. The paragraphs 25-28 were however struck out and there is nothing to indicate in the transcript that followed that any evidentiary effect was being given to the contentions that were raised in them.

16 The claimant is represented in this Court by the same counsel who represented him before the Tribunal. Mr Conomos made it plain to us that it is not suggested that the earlier discussion about the Tribunal referring additional charges arising out of the evidence before the Tribunal had anything to do with the subject matter of the four paragraphs of the statement that have been struck out or with what is later referred to as the “later complaint”.

17 I return to the discussion in the Tribunal in the late morning of Friday 29 November 2002. Mr Beckett suggested (at CB 438) that the form of Order 3(a) made by the Committee should be amended to address certain concerns of the Commission if a method could be devised for the Tribunal to make its own orders. The Deputy Chairperson raised the possibility of resolving the matter by the practitioner himself making application that the Tribunal should make orders as made by the Professional Standards Committee and amended in the way the Commission was seeking.

18 Mr Conomos submitted that the claimant could “walk out any time, it’s his appeal”.

19 To this the Deputy Chairperson replied:

I don’t know that this is quite right Mr Conomos. If he walks out any time, he still has an appeal before this Tribunal and this Tribunal can deal with that appeal with or without the presence of Dr Lindsay. So I don’t see that that is a problem. I don’t know that your objection equates to some other jurisdiction with which you and I have some familiarity and with which appeals aren’t withdrawn as of right.

20 Mr Conomos said “It’s governed by the Justices Act and other provisions”, to which the Deputy Chairperson said “I understand, it’s not quite the same”.

21 The question whether the claimant was entitled simply to “walk out”, thereby depriving the Tribunal of all jurisdiction, was not resolved. Nor did Mr Conomos and his client test matters by putting the suggestion into practice.

22 Mr Conomos pressed the Tribunal not to exercise its powers under clause 5, to grant the claimant leave to withdraw the appeal, and to confirm the orders made by the Committee. The following exchange ensued:

DEPUTY CHAIRPERSON: As I understand it Mr Conomos, Mr Beckett apprehends some technical problem if the appeal is withdrawn, if that is done, as to whether this Tribunal then has any power to make any orders.
CONOMOS: Well your Honour, I haven’t researched it thoroughly in terms of this statute. I haven’t, as it were, looked at this statute from that point of view but one would have thought in terms of first principle, when this Court is seized of an appeal and the appeal is withdrawn, an exercise of the discretion can be conditioned on the Tribunal making certain orders. It doesn’t have to be an absolute exercise of the discretion. After all, this Tribunal has certain powers set out in the Act but it also has the powers to regulate its own proceedings. I can’t give a definitive answer on that provision because it would of necessity require me to go to authority.
DEPUTY CHAIRPERSON: You say that the impossible problem would be obviated if the practitioner was to consent to an order in terms the order made by the Professional Standards Committee?
CONOMOS: That could be overcome and that is no doubt --
DEPUTY CHAIRPERSON: And that is without any rule [sic] on any of the appeal, the appeal is simply determined?
CONOMOS: You could determine it if you wanted to on that basis and the hearing stops then.
DEPUTY CHAIRPERSON: What do you say about that Mr Beckett?
BECKETT: I’m having some difficulty to understand the proposition put by Mr Conomos.
DEPUTY CHAIRPERSON: The proposition is this: This appeal be determined by this Tribunal making an order in terms of the order for determination and the orders made by the Professional Standards Committee and proceeding no further. It doesn’t depend upon any withdraw [sic] of the appeal, simply consenting to the orders that were made.
BECKETT: I think I need to seek some instructions on the specific proposition.
DEPUTY CHAIRPERSON: Yes.
BECKETT: Your Honour, if it is considered this way, as I understand it, in the middle of the defendant’s case an application is made whereby the appeal is not withdrawn but essentially, the [sic] criminal terms, Dr Lindsay has pleaded to the original complaint, that is to say he agrees to the same determination and orders that were proposed by the Professional Standards Committee, the complainant is in the position of being only halfway through cross-examination, or however far, through the doctor’s case, that is the complainant has not been provided with an opportunity to fully test the evidence of Dr Lindsay. So in that way, there may be a procedural issue which would create some difficulty for the complainant.
DEPUTY CHAIRPERSON: But if Dr Lindsay requests this Tribunal to make orders, what is the difference as to what further evidence? How does that prejudice the HCCC?
BECKETT: I have a specific question to ask on my instructions.
DEPUTY CHAIRPERSON: Because the HCCC didn’t seek to challenge the orders made by the PSC.
BECKETT: Yes, that is certainly the case.
DEPUTY CHAIRPERSON: Did it have the right to?
CONOMOS: Section 87 gives them a specific right.
BECKETT: We would have to admit that we had the right to.
DEPUTY CHAIRPERSON: But you chose not to.
BECKETT: That is the HCCC did choose not to but the reason why a party may choose to appeal or not appeal may be many and varied, not necessarily related solely to the orders or the correctness of those orders. In that way once an appeal is lodged, any appellant runs the risk, whoever that appellant might be, or orders being made by this Tribunal that might exceed or be less than those orders made by the committee below.
DEPUTY CHAIRPERSON: That is interesting but, as I understand it, you’re not [sic] going to urge upon us that we do just that, that we make more stringent orders?
BECKETT: Yes.
DEPUTY CHAIRPERSON: If you are seeking more stringent orders then why didn’t you appeal?
BECKETT: Well, it’s open to the Health Care Complaints Commission, at the conclusion of the evidence of a rehearing of something that is a matter that has come from the committee, to seek orders that are more strident than those imposed by the committee. It is not incumbent upon the Health Care Complaints Commission to make a submission either to cross appeal, if you like, or to raise in its opening on the rehearing that it is seeking more strident conditions.

DEPUTY CHAIRPERSON: I’m not terribly impressed by that proposition Mr Beckett. The HCCC has been fully appraised of everything that has been placed before this Tribunal, save and except some of the evidence that emerged yesterday.
BECKETT: Yes.
DEPUTY CHAIRPERSON: You are fully appraised of what [the patient] said. You are fully appraised of what the peer reviewers said. You are fully appraised of what health workers said. You are fully appraised of their accounts being highly contradictory to the propositions raised by the practitioner in his various explanations and letters, statements and the like. So you’ve learnt nothing new except some, in effect, broadening or enlargement of the practitioner’s accounts which emerged in his evidence here.
What I want you to do is to seek some instructions on this possible solution and Mr Conomos, if you demur … from this let me know forthwith.
CONOMOS: That is why we are making a note.
DEPUTY CHAIRPERSON: The practitioner seeks an order from this Tribunal that it makes orders in the terms of the determination and findings of the Professional Standards Committee and that the commencement date of those orders is today.
BECKETT: I will seek those instructions.
DEPUTY CHAIRPERSON: That hasn’t disposed of the other possible action of this Tribunal referring the matter to some other Tribunal. Why shouldn’t the HCCC, if it wishes to have the matter referred to another Tribunal, do that?
BECKETT: It might well consider doing that. I don’t have specific instructions.
DEPUTY CHAIRPERSON: I understand that and that’s why I’m going to adjourn the matter till quarter past 2 so you can get them.
BECKETT: Very well.
DEPUTY CHAIRPERSON: Mr Conomos, what could you say about that?
CONOMOS: The order of the findings is not a problem but the date, even though there is power in the Tribunal to do that, we submit that the appropriate date was the date when these orders were made on the 23rd of July 2001. I have to speak to the doctor.
DEPUTY CHAIRPERSON: You’ll have to speak to him because as I understand it, it is clear from the file, clear from the material placed before us either by the doctor or the HCCC, that there has been dispute and for all we know, these orders haven’t been complied with.
CONOMOS: I prefer to say no more.
DEPUTY CHAIRPERSON: I’m telling you the basis upon which I was ---
CONOMOS: I understand.
DEPUTY CHAIRPERSON: This is for instance, if you look at 3(c): “The board arrange inspection of Dr Lindsay premises within 12 months from the date of this decision”. If the commencement date of the orders are the date of that decision, that is July 2001, that twelve months have passed and so on.
CONOMOS: There is a corollary to that but I prefer to get instructions first.
DEPUTY CHAIRPERSON: I will stand the matter down to quarter past 2. You’ve heard me suggest to Mr Beckett that he get some instructions about the other matter raised. That is a reference to the Tribunal, as to whether this Tribunal makes a reference to another Tribunal and a suggestion that that should be done and it should be the HCCC that proceeds.
CONOMOS: I’m indebted to your Honour.

23 The luncheon adjournment was then taken. When the hearing resumed the following was said:

DEPUTY CHAIRPERSON: Yes Mr Beckett?
BECKETT: Your Honour, over the luncheon adjournment I have had an opportunity to do two things. First of all to get instructions from my client in relation to a further complaint, if any. The situation is that the HCCC is constrained by the Medical Practice Act . It cannot of its own volition lodge a complaint itself. The only person who could do that is another individual or the board, that is the Medical Board under the Medical Practice Act , or the Director General.
So in terms of whether a further complaint could be laid, that is really a matter that is out of the hands of the Health Care Complaints Commission, save that it might be able to make an authority such as the Medical Board aware of what has occurred in these proceedings.
The second matter that I have been able to attend to over the break is that I’ve spoken to my friend and we’ve come to an agreement about some orders, should Dr Lindsay’s application be accepted. Perhaps if I could hand those up. I apologise, they are by way of amendment to the Professional Standards Committee.
DEPUTY CHAIRPERSON: Yes. Are there costs?
BECKETT: Yes. The Health Care Complaints Commission applies for its cost in these proceedings on the basis that is has been wholly successful. The costs of the event.
CONOMOS: I don’t consent to costs. They are opposed. It’s a matter for the Tribunal.
DEPUTY CHAIRPERSON: Unless there is some good reason you are going to advance Mr Conomos, that would be the order that the Tribunal would make.
CONOMOS: I understand.
DEPUTY CHAIRPERSON: Is there anything further?
CONOMOS: Nothing further.
BECKETT: Nothing further, thank you your Honour.

24 The Deputy Chairperson proceeded to deliver a judgment. It recorded that the whole of the complainant’s evidence had been placed before the Tribunal and that the practitioner had tendered the evidence he wished to be considered. Judge McGuire continued:

In support of the documentary evidence he tendered he gave sworn evidence in the course of which he was examined in chief. It was in the course of being cross-examined when the Tribunal informed him that on the state of the evidence as it then stood the practitioner faced the substantial prospect that the Tribunal would consider imposing more stringent conditions than are contained in the orders of the Professional Standards Committee. The Tribunal considered that as a matter of fairness this warning should be given to the practitioner so as to allow him to consider his position and to decide whether he wished to proceed with his appeal.
Mr Conomos, a highly experienced and well-respected and most astute and capable advocate has informed the Tribunal that the practitioner now wishes the appeal to be disposed of by his withdrawal of such appeal and the Tribunal making the same determination which emanated from the Professional Standards Committee by making essentially the same orders made by that Committee. Such withdrawal determination and orders will effectively dispose of the appeal.
To that end this Tribunal finds particular 1 of the complaint proven, particular 2(a) proven, particular 2(c) proven, particular 3 proven, particular 5 proven, particular 6 proven. The Tribunal is comfortably satisfied on the balance of probabilities that Dr David Lindsay is guilty of unsatisfactory professional conduct as in the meaning of s36 of the Act and that he has engaged in conduct which demonstrates a lack of adequate knowledge, judgment, skill and care in the practice of medicine.

25 These reasons effectively adopted the reasons of the Committee and the findings of the Committee. They confined themselves to the particulars of the complaint found established by the Committee. There was no suggestion that the evidence before the Tribunal was inadequate to ground those findings.

26 The Tribunal then made the following orders:

1. The Tribunal reprimands Dr David Charles Lindsay pursuant to Section 61(1) of the Act;
2. That pursuant to Section 62(1) of the Act, the Tribunal imposes a fine on Dr Lindsay in the amount of 30 penalty units representing a sum of $3,300 payable within 90 days from today.
3. That pursuant to Section 61(1)(c) of the Act, the following conditions be imposed upon Dr Lindsay’s registration:
(a) Dr Lindsay maintain a record of all surgical procedures he performs in a form approved by the Board to be reviewed by a person or person appointed by the Board at 6 monthly intervals for a period of 2 years. That Dr Lindsay authorize the said person or persons to report to the Board on any relevant matters. The costs of any subsequent reports to be borne by Dr Lindsay.
(b) Dr Lindsay to submit to a random audit of his medical records by the person or persons nominated by the Board to monitor compliance with Schedule 2 of the Medical Practice Act Regulations 1998 within three months from 29th November, 2002 and subsequently as required by the Board. Dr Lindsay is to authorize the said person or persons to prepare a report on his/her or their findings. Dr Lindsay is to meet all costs associated with the random audit and any subsequent reports.
(c) That the Board arrange an inspection of Dr Lindsay’s premises by the person or person nominated by the Board within 12 months from 29th November, 2002 to determine compliance with the standards necessary for the excision of skin lesions requiring more than simple closure and to report back to the Board’s Conduct Committee. Dr Lindsay is to meet all costs associated with the inspection and any subsequent report.
(d) That Dr Lindsay authorize and consent to the release of information between the Health Insurance Commission and the Board where necessary to facilitate monitoring of compliance with these conditions.
Dr Lindsay is to pay the costs of the Health Care Complaints Commission in relation to this appeal.

27 It may be observed that the Tribunal’s Orders effectively repeated those pronounced by the Committee except that:

• Orders 2, 3(b) and 3(c) dated from 29 November 2002, the date of the Tribunal's Order ;

• Conditions 3(a), (b) and (c) were amended in the references to “person or persons appointed by the Board” , substantially in lieu of the Committee’s references to “an Auditor” .

28 It is important however to observe that the form of the orders had been agreed between the lawyers over the luncheon adjournment. They were presented as agreed orders to the Tribunal (see CB 444T). The only matter that was in dispute, and that pretty formally, was the question of costs. The costs order that was made by the Tribunal clearly stood upon the back of the findings and orders that were made by consent.

29 In March 2003 Dr Lindsay sought to appeal to this Court against the Tribunal's decision and consent orders. This appeal was dismissed for want of jurisdiction on 22 September 2003. The present Summons was filed soon after.

30 The claimant seeks an order pursuant to s69 of the Supreme Court Act in the nature of certiorari removing the official record of the Tribunal's decision of 29 November 2002 and quashing that decision. It is submitted that the decision is vitiated by lack of procedural fairness on the part of the Medical Tribunal.

31 The allegation of procedural unfairness has been formulated in differing ways. I shall deal with them as alternatives, without overlooking the need to consider the cumulative effect of individual instances of unfairness if any are established.

32 The first, and I perceive principal, way the matter is put is the submission that the claimant was given no practical choice but to consent to the making of orders on the terms imposed by the Tribunal at the Commission’s suggestion. This was said to be unfair because the claimant’s “sentence” was almost doubled in length in regard to the review of his records of surgical procedures. This comes about because no stay had been obtained on the operation of the Committee’s orders (cf s87(6)) with the consequence that conditions 3(b) and (c) which would have been spent by the time of the Tribunal hearing were started afresh from the date of the Tribunal orders.

33 The way the matter was put in the hearing before us by counsel for the claimant was twofold. It was submitted first that by virtue of the course taken by the Tribunal the doctor was not able to complete his case to finality and to put before the Tribunal the balance of his evidence including literature about the type of surgery performed on the patient. Secondly, it was submitted that by virtue of the powers in the Act whereby the Tribunal could formulate a charge and deal with it, the doctor, under fear or concern about what was said to be a probability that this might occur, acquiesced “in accepting the Parker directions”. I take the words that I have just quoted to be read as if they were “consenting to the orders that were made”.

34 These submissions confuse substantive with procedural fairness. The claimant did not and does not dispute the Tribunal’s power to make the orders that it made, including the imposition of conditions relating to the practice of medicine. The Tribunal’s power to make those orders was conditioned upon it finding the subject matter of the complaint to have been proved (ss60-62. See also 87(5)(b)). As I have indicated, there was evidence capable of satisfying the Tribunal as to the claimant’s unsatisfactory professional conduct. More to the point, this was effectively conceded to be the case when the agreed form of orders was handed to the Tribunal in the afternoon of 29 November.

35 The claimant’s submissions flirt with an allegation that the Tribunal evinced bias or an appearance of bias brought about through prejudgment. But such a contention was never embraced firmly or adequately either before us of the Tribunal itself. And rightly so. The remarks of the Deputy Chairperson cannot in my view be interpreted as indicating any more than the giving of a fair warning to the witness that he and his case was not proceeding well.

36 The statute armed the Tribunal with the power to refer additional complaints based on the evidence, subject naturally to procedural fairness. The very principles of Parker’s Case referred to in another context show that the Tribunal would, under some circumstances, have been obliged to give a warning of the nature that was given. Had it not been given then there would undoubtedly have been cause for complaint. The fact that it was given can hardly, in my view, be characterised as having any bearing upon a claim of denial of natural justice.

37 In Parker’s Case itself Kirby P said (at 296):

It used to be said that silence in a judge was a counsel of perfection (see The Queen v Watson Ex parte Armstrong (1976) 136 CLR 248 at 294) however at least in the case of a trial judge sitting without a jury that view has now been disapproved by the High Court of Australia (see Vakouta v Kelly (1989) 167 CLR 568 at 571). Respectfully I strongly endorse the view there expressed. Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer’s conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view.

38 In the so-called “Parker warning” the Tribunal had been at pains to indicate that its views were tentative, while foreshadowing the possibility that it might refer additional complaints based upon the evidence before it and deal with them in that event subject to affording procedural fairness. This warning did not arrive completely out of the blue. More than once on the preceding day during the course of the claimant’s evidence there were indications that he was not a witness that was impressing the Tribunal.

39 In my view it is clear from what was said by the Deputy Chairperson and by Mr Beckett for the Commission that the possible and even probable referral of additional complaints and/or the imposition of more “stringent” or “strident” sanctions would be based upon the evidence before the Tribunal, and that it would not occur without ensuring that the claimant was given a proper opportunity to respond by evidence or submissions.

40 The claimant had the assistance of very experienced counsel. With that assistance he made an informed forensic decision to consent to the imposition of orders that did no more than repeat the orders of the Committee with minor variations and the fresh starting date for the conditions.

41 Everyone, the Tribunal included, knew that there was some dispute as to whether the Committee’s orders had been complied with. The claimant obviously decided that his interests in relation to the instant complaint lay in accepting what was on offer, lest the Commission continue with the proceedings and perhaps press for more.

42 In Re Minister for Immigration & Multi-Cultural Affairs; Ex parte Lam (2003) 77 ALJR 699 at [37] Gleeson CJ said:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

43 The claimant was not deprived of any opportunity to answer matters adverse to his interests. He was given clear notice of the tentative views of the Tribunal and the most ample opportunity to seek to persuade the Tribunal to a different view. He did not avail himself of either opportunity. Nor did he seek to continue his own evidence (being then under cross-examination) or to make submissions to dissuade the Tribunal to a different view of his conduct. The claimant had an ample opportunity to deal with all factual and legal issues relevant to the orders that the Tribunal proceeded to make, I repeat, by consent. This amply satisfied any entitlement to procedural fairness (see Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213 at 219-220).

44 Nothing that occurred during the hearing before the Tribunal suggested to the claimant’s counsel at the time that there was any basis for contending that the Tribunal had indicated any ground for disqualification on the basis of apprehended bias. I perceive no possible ground for such apprehension either. In any event, this is not the basis of the present summons.

45 The alternative (and possibly cumulative) way in which the claimant advances the present application depends upon inferences sought to be drawn from primary facts that are not themselves in dispute.

46 The claimant’s solicitor, Mr Solari, has been permitted to inspect the Medical Tribunal’s files in the regard to the claimant. There has also been correspondence with the Registrar of the Tribunal in which certain matters have been admitted. The Tribunal is the second opponent in these proceedings and it has properly adopted a submitting stance.

47 On 11 June 2002 the Medical Board referred a further complaint to the Tribunal (CB 81) (“the later complaint”). In it it was alleged that Dr Lindsay had failed to comply with the conditions imposed pursuant to s61(1)(c) in the Orders made by the Professional Standards Committee on 23 July 2001 (set out above). The later complaint is made in the form of a letter addressed to the Chairperson of the Medical Tribunal, Justice Blanch, and it is supported by a draft statutory declaration by Mr Dix, the Registrar of the Medical Board.

48 This, I infer, is the same as the statutory declaration forming part of Ex DL 15 which is in par 27 of the claimant’s statement, being one of the paragraphs that was withdrawn from the evidence in the instant complaint. The nub of the later complaint was that the claimant refused access to the Board’s appointed auditor who sought to inspect the claimant’s premises within the time frame stipulated in Order 3(c) of the Committee.

49 Based upon notations found on documents and statements attributed to representatives of the Tribunal, the claimant submits that Mr Solari’s investigations revealed that:

(a) the Later Complaint was filed when it was received by the Tribunal’s registry in June 2002. It was placed on the file for the appeal of Dr Lindsay against the Committee’s decision in the [original] complaint (“the Appeal file”) and not on a separate file. It remained there until 14 November 2002 when the Registrar removed it. The Later Complaint was refiled on the Appeal file at some unknown later date. In February 2003 this misfiling was detected and once again the Later Complaint was removed from the Appeal file and placed in a newly raised separate file;

(b) Judge McGuire was appointed deputy chairperson of the Tribunal to hear Dr Lindsay’s appeal at least 7 weeks before the Later Complaint was removed from the Appeal file for the first time.

50 Taking these matters at the highest, they disclose no basis for inferring any procedural irregularity or unfairness on the part of the Tribunal constituted to hear the (original) Complaint which is the focus of attention in these proceedings. The critical timeframe is as follows:

11June 2002 Later complaint lodged
14 June 2002 (approx) Later complaint placed in the Tribunal file for Dr Linday’s appeal
15 August 2002 Judge McGuire allocated as the deputy chairperson of the Tribunal to hear the appeal
14 November 2002 Tribunal’s Registrar removed the Later Complaint from the Appeal file, assigning it a fresh filing number.

51 In the passage taken from CB 443 that is set out above during which it was being suggested to Mr Conomos that his client might consider effectively consenting to orders in the Tribunal on a particular basis there was the following exchange:

CONOMOS: The order of the findings is not a problem but the date, even though there is power in the Tribunal to do that, we submit that the appropriate date was the date when these orders were made on 23 July 2001. I have to speak to the doctor.
DEPUTY CHAIRPERSON: You’ll have to speak to him because as I understand it it is clear from the file, clear from the material placed before us, either by the doctor or the HCCC that there has been dispute and for all we know these orders haven’t been complied with.
CONOMOS: I prefer to say no more.

52 In my view it is unlikely that Judge McGuire would have read the later complaint while it was temporarily on the appeal file between 14 June and 15 August 2002. There were no steps taken in the appeal proceedings during that time. But nothing really turns on this because the existence and nature of the later complaint and the fact that it was a matter of dispute were clearly matters of record as they were in the instant Tribunal hearing.

53 I have already referred to the occasions in the instant Tribunal hearing in which reference was made to them. It is a more likely inference that the reference to something being clear from the file in the remarks of the Deputy Chairperson, which I have recently quoted, was a reference to the appeal file in the form it stood during the hearing of the Tribunal but again this issue really runs like water into the sand.

54 Mr Conomos was asked whether it was part of his client’s case to submit that the Deputy Chairperson had, contrary to what he said, taken into account some conclusion drawn from the terms of the later complaint in the formulation of the so-called Parker warning. Very properly, if I may say so in light of the evidence, Mr Conomos said that that was not the claimant’s case. And, as I have indicated already, he indicated that it is not suggested that the references to referring additional charges arose out of anything beyond the evidence given in the instant Tribunal proceedings and in particular that of the doctor on 28 November 2002.

55 We were referred to statements whereby courts have recognised that orders, even consent orders, will not be permitted to become instruments of injustice (see Barder v Barder [1987] 2 WLR 1350, Easyfind (NSW) Pty Limited v Paterson (1987) 11 NSWLR 98 at 108). There’s no doubting these general propositions. The problem for the claimant’s case is in seeking to have them do any work in the present case. There is, I repeat, no suggestion that the later complaint was actually taken into account in the formulation of the Parker warning. In any event the Parker warning amply satisfied any obligations stemming from the principles of procedural fairness.

56 The reality of the claimant’s presently-formulated complaints lies outside the realm of the doctrine of natural justice or procedural fairness. Nothing that has been put in this Court indicates that the orders of the Tribunal that were made by consent save as to costs were vitiated by reason of want of procedural fairness or, for what it’s worth, any other basis attracting administrative law review.

57 I propose that the summons be dismissed with costs.

58 SANTOW JA: I agree. I would only add this. It is not necessary to reach any concluded view as to whether, had there been no warning given of the kind here called into question, or one like it, that would have given rise to procedural unfairness; that is to say in circumstances where the Tribunal then entertained a further complaint or imposed a heavier penalty pursuant to powers conferred upon the Tribunal by statute. What is clear is that the particular warning given, carefully qualified as it was and made in its present forensic context, was not such as to give rise to any procedural unfairness; that is procedural unfairness by way of unfair pressure, prejudgment or otherwise.

59 Such pressure as that warning may have exerted might have been a function of the claimant’s perception of the strength of his own case or may have operated in the way it did for other reasons. But in any event there is no proper basis for concluding that the warning in the forensic context in which made was the product of bias or capable of giving rise to its reasonable apprehension, most especially as no complaint was ever made to the effect. The suggestion of prejudgment on the part of the Tribunal, made before us well after the Tribunal had dealt with the matter, can in such a context have no credibility.

60 PEARLMAN AJA: I agree with the judgment of the President and with the matters raised by Justice Santow.

61 MASON P: The orders of the Court will be as I have indicated. The Court will not adjourn.

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Last Modified: 07/08/2004