Lindsay v Health Care Complaints Commission (No 1)

[2009] NSWCA 97

NEW SOUTH WALES COURT OF APPEAL

CITATION:
LINDSAY v HEALTH CARE COMPLAINTS COMMISSION (NO 1) [2009] NSWCA 97

FILE NUMBER(S):
40290/08

HEARING DATE(S):
30 April 2009

JUDGMENT DATE:
30 April 2009

PARTIES:
David Charles Lindsay (Appellant)
Health Care Complaints Commission (Respondent)

JUDGMENT OF:
Basten JA     

LOWER COURT JURISDICTION:
Medical Tribunal of NSW

LOWER COURT FILE NUMBER(S):
MT 40020/06

LOWER COURT JUDICIAL OFFICER:
Judge Walmsely – Deputy Chairperson, Dr V Sutton, Dr P Anderson, Ms A Collier

LOWER COURT DATE OF DECISION:
20 August 2008

COUNSEL:
Self-represented Appellant
C Adamson SC/P Griffin (Respondent)

SOLICITORS:
Self-represented Appellant
Health Care Complaints Commission (Respondent)

CATCHWORDS:
APPEAL - statutory right of appeal - whether need to invoke supervisory jurisdiction - objection to grounds
PROCEDURE - supervisory jurisdiction - need to rely upon affidavit evidence - powers of single judge - [<i>Supreme Court Act 1970</i>] (NSW), s 46
WORDS & PHRASES - "decision ... with respect to a point of law" - "dismiss ... for other cause specified in the rules"

LEGISLATION CITED:
[<i>Medical Practice Act 1992</i>] (NSW), s 90
[<i>Supreme Court Act 1970</i>] (NSW), ss 46, 69
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 12.8, 12.11, 13.1, 13.4, 13.6, 51.36

CASES CITED:
[<i>Health Care Complaints Commission v Wingate</i>] [2007] NSWCA 326; 70 NSWLR 323
[<i>Macatangay v State of New South Wales</i>] [2009] NSWCA 81
[<i>Prakash v Health Care Complaints Commission</i>] [2006] NSWCA 153

TEXTS CITED:

DECISION:
(1) The Appellant has leave to file and serve a summons under s 69 of the [<i>Supreme Court Act 1970</i>] (NSW) seeking relief presently identified in the further amended notice of appeal, but involving claims with respect to procedural unfairness and related issues which are not in substance complaints about any decision of the Tribunal with respect to a point of law.[<br>][<br>](2) The Appellant has leave to file evidence, by way of affidavits, in support of the summons.[<br>][<br>](3) The summons and the evidence referred to in directions (1) and (2) shall be filed and served by 29 May 2009.[<br>][<br>](4) By 29 May 2009 the Appellant has leave to file a second further amended notice of appeal removing such grounds as are properly dealt with under the summons and any other material he does not seek to pursue.[<br>][<br>](5) The Commission shall, by 12 June 2009 file and serve a statement identifying:[<br>][<br>](a) any parts of the evidence filed by the Appellant to which objection is taken;[<br>](b) any grounds of appeal (or parts thereof) to which objection is taken; and[<br>](c) the grounds of such objections.[<br>][<br>](6) The matter is stood over to Monday, 15 June 2009 at 9.15am for further directions as to:[<br>][<br>](a) the manner in which objections to evidence or pleadings are to be determined;[<br>](b) the filing of evidence on behalf of the Commission;[<br>](c) the preparation of written submissions and outstanding appeal books;[<br>](d) any further matter raised by the parties.[<br>][<br>](7) Direct that the names, addresses or other material capable of identifying the patients of the Appellant who were the subject of complaints or gave evidence in the Tribunal not be published.[<br>][<br>](8) These orders are in lieu of those made orally at the directions hearing today.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40290/08

BASTEN JA

30 April 2009

David Charles LINDSAY v HEALTH CARE COMPLAINTS COMMISSION (NO 1)

Judgment

1. BASTEN JA:  On 20 August 2008 the Medical Tribunal handed down orders and reasons in the matter of David Charles Lindsay (the Appellant).  The primary order was that the Appellant’s name be removed from the Register of Medical Practitioners.  The reasons of the Tribunal ran to some 378 pages and dealt with complaints in respect of numerous patients.  In its summary of findings (p 377) the Tribunal said:

   “1.        The respondent suffers from an impairment.

   2.By reason of that impairment the respondent is not competent to practice medicine.

   3.By reason of the matters established in each of complaints 1, 3 and 4 the respondent has been guilty of professional misconduct.”

2. The hearing before the Medical Tribunal proceeded over some 38 days from 28 April to 1 July 2008.  It appears to have proceeded on the basis of a further amended notice of complaint, the copy of which included in the red appeal book is unsigned and undated.  The document contained six separate complaints, each of which had multiple particulars and related to numerous patients.  Each of complaints 1, 3 and 4 asserted that the practitioner had been guilty of unsatisfactory professional conduct “and/or” professional misconduct under the Medical Practice Act 1992 (NSW). Complaint 2 alleged that the practitioner was not off good character. Complaint 2 was not upheld.

3. A notice of appeal, over the signature of a solicitor, was filed on 16 September 2008.  That document was within time.  It identified four broad grounds and was more in the nature of a notice of intention to appeal than a notice of appeal, properly particularised.  The solicitors have since ceased to act for the Appellant.

4. On 9 March 2009 an amended notice of appeal was filed, signed by the Appellant in person.  That document was significantly expanded: it was 43 pages long.

5. On 14 April 2009, the Appellant filed what purported to be a further amended notice of appeal which was of similar length to the amended notice of appeal. These latter documents appear to have made little attempt to comply with the requirement of s 90(1)(a) that the appeal must be against “a decision of the Tribunal with respect to a point of law”. A broader right of appeal exists in relation to the exercise of a power by the Tribunal. The interrelationship of those provisions was discussed by this Court in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85] and [89] and in Health Care Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323 at [24]. As explained in the latter case, “a challenge to the orders may not extend to ‘question the acceptance by the Tribunal of the facts comprising proof of the complaint’ those facts not being otherwise open to scrutiny”.

6. There is a further problem in that some of the grounds assert procedural unfairness and other complaints which may be available if relief were sought under s 69 of the Supreme Court Act 1970 (NSW), but may not be available on an appeal under s 90 of the Medical Practice Act.  The Health Care Complaints Commission took no objection to the competency of the appeal on this basis but accepted that the Appellant may have leave to make an application by summons for relief in the supervisory jurisdiction of the Court.  The Tribunal should be joined as a party to such proceedings.

7. The grounds of appeal as identified in the further amended notice of appeal may fall into one of three categories, namely:

   (1)those grounds which properly arise under s 90 of the Medical Practice Act,

   (2)        grounds which properly arise in judicial review proceedings, and

   (3)grounds which are objectionable as falling under neither category (1) or (2).

8. The Appellant should have leave to file a summons under s 69 of the Supreme Court Act and, to the extent that he considers it appropriate, to remove from the notice of appeal those grounds which fall within the summons.  I do not understand that any point will be taken by the Commission if there remain overlapping grounds.  It is, however, desirable to allow the Appellant an opportunity to recast grounds so as to remove allegations which can give rise to no relief in either of the available jurisdictions of this Court.

9. Some of the grounds, as confirmed in discussion during the directions hearing, may involve reference to the transcript, for example, to demonstrate a possible complaint of apprehended bias.  Other grounds appear to rely upon matters which could only properly be taken into account in this Court if proved by evidence.  It seems likely that such material could only properly arise in respect of the claim for judicial review, in the supervisory jurisdiction of the Court, and not in the statutory appeal.  In any event, the Appellant should have an opportunity to file affidavits setting out the evidence proposed to be adduced before this Court.  It should be in a form admissible under the Evidence Act 1995 (NSW).

10. The Commission should have an opportunity to consider whether it seeks to put on evidence in reply and an opportunity to take objection to any evidence which it considers to be irrelevant or inadmissible.  In the interests of limiting the evidence likely to be adduced at a hearing in this Court, it is appropriate that the Commission have the opportunity to object to evidence put forward by the Appellant prior to itself filing affidavits in reply.

11. It is anticipated that written submissions will be considerably beyond the limit imposed by the Uniform Civil Procedure Rules 2005 (NSW), r 51.36(1)(f). The notice of appeal is almost twice that length. Although there are said to be four complaints, each has within it several separate acts or courses of conduct. Thus complaints 1 and 2 relate to six patients, complaint 3 concerns the records of 20 patients and complaint 4 has within it 50 separate paragraphs. Some expansion of the usual limits on written submissions will be required. However, because of the limited scope of the right of appeal, it is not properly open to the Appellant to challenge the fact-finding in respect of each particular. He is required to identify error with respect to a point of law in some aspect of the Tribunal’s decision.

12. The rules require that written submissions should have been filed by the Appellant within six weeks of the notice of appeal.  Assuming a notice of appeal with grounds had been filed within three months of the material date, being the date of the decision of the Tribunal, those submissions should have been filed in January 2009.  That course has not been followed and it is appropriate that, given the further directions to be made today, the filing of written submissions should await the repleading which is to occur and the filing of evidence.

13. In the course of determining what evidence will be required (if any), the Appellant will need to consider what material was before the Tribunal and how much of that material and of the transcript he seeks to rely upon in this Court.  It would be convenient if he were to provide to the Commission draft indices to the material intended to be included in the blue appeal books (exhibits before the Tribunal) and the black appeal books (transcript before the Tribunal).

14. Red appeal books have been filed containing the pleadings and the judgment of the Tribunal, together with the various notices of appeal.  The index to the red books is incomplete and needs to be completed.  In order to undertake that task, the red books need to be paginated.  However, if there is a further amendment to the notice of appeal, it is appropriate that that should be done before amended red books are prepared.

15. At the next hearing, it will be necessary to consider what matters need to be determined on an interlocutory basis and how they should be determined. In particular, it may be necessary to consider the scope of the powers of a single judge of the Court under s 46 of the Supreme Court Act.  I note that I recently gave consideration to the scope of those powers in Macatangay v State of New South Wales [2009] NSWCA 81 at [14] and [15]. In the course of those reasons I read the powers of a single judge in s 46(1)(b) “to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules” as involving a reference to a cause specified for the purposes of that provision. That reading may be erroneous and the power to dismiss may extend to any cause specified in the rules as a basis for dismissal of proceedings or, arguably, part thereof. Such rules may include UCPR rr 12.7, 12.8, 12.11, 13.1, 13.4 or 13.6. The proper construction of s 46(1)(b) must take account of other provisions in the Supreme Court Act, including s 46(2)(b).

16. These are matters as to which submissions may be made in due course, if any of these provisions are sought to be invoked.  Whether such a need arises will be considered at the next hearing.

17. There was no discussion in the course of the hearing before this Court as to whether an order should be made prohibiting publication of the names or other material which might identify any of the patients of the practitioner who were the subject of complaints or gave evidence in the proceedings before the Medical Tribunal.  That Tribunal appears to have adopted the normal course before it of using letters or numbers to identify such persons: see Medical Practice Act, Schedule 2, cl 6. It is appropriate, pending further directions, that a similar order be made in relation to the proceedings in this Court.

18. The Court makes the following directions:

    (1)The Appellant has leave to file and serve a summons under s 69 of the Supreme Court Act1970 (NSW) seeking relief presently identified in the further amended notice of appeal, but involving claims with respect to procedural unfairness and related issues which are not in substance complaints about any decision of the Tribunal with respect to a point of law.

    (2)The Appellant has leave to file evidence, by way of affidavits, in support of the summons.

    (3)The summons and the evidence referred to in directions (1) and (2) shall be filed and served by 29 May 2009.

    (4)By 29 May 2009 the Appellant has leave to file a second further amended notice of appeal removing such grounds as are properly dealt with under the summons and any other material he does not seek to pursue.

    (5)The Commission shall, by 12 June 2009 file and serve a statement identifying:

    (a)any parts of the evidence filed by the Appellant to which objection is taken;

    (b)any grounds of appeal (or parts thereof) to which objection is taken; and

    (c)        the grounds of such objections.

    (6)The matter is stood over to Monday, 15 June 2009 at 9.15am for further directions as to:

    (a)the manner in which objections to evidence or pleadings are to be determined;

    (b)        the filing of evidence on behalf of the Commission;

    (c)the preparation of written submissions and outstanding appeal books;

    (d)        any further matter raised by the parties.

    (7)Direct that the names, addresses or other material capable of identifying the patients of the Appellant who were the subject of complaints or gave evidence in the Tribunal not be published.

    (8)These orders are in lieu of those made orally at the directions hearing today.

    **********

LAST UPDATED:
4 May 2009