Newcombe v Medical Board of SA - [2007] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
NEWCOMBE v MEDICAL BOARD OF SA & ANOR
[2007] SASC 69
Judgment of The Honourable Justice Duggan
1 March 2007
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - MEDICAL PRACTITIONERS - DISCIPLINE, AND REMOVAL FROM AND RESTORATION TO REGISTER - PROCEDURE EVIDENCE AND APPEAL
Application for permanent stay of proceedings – claim of abuse of process by reason of delay – complaint against medical practitioner laid before Medical Practitioners Professional Conduct Tribunal – allegations of sexual misconduct with patient and other conduct arising from treatment of the patient – consideration of principles relevant to abuse of process by reason of delay – application for permanent stay of proceedings refused.
Herron v McGregor (1986) 6 NSWLR 246; Walton v Gardiner (1993) 177 CLR 378; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Jago v District Court of New South Wales (1989) 168 CLR 23; G v Medical Board of the Australian Capital Territory [1994] ACTSC 42, discussed.

NEWCOMBE v MEDICAL BOARD OF SA & ANOR
[2007] SASC 69
Civil

Duggan J. A complaint against the plaintiff dated 22 June 2004 has been lodged with the Medical Practitioners Professional Conduct Tribunal (“the tribunal”) by the Medical Board of South Australia (“the Board”). There are four grounds of complaint, all of which allege that the plaintiff is guilty of unprofessional conduct.
The first ground states that, during the period from 7 November 1984 to 21 August 1985 (the consultation period), the plaintiff, a psychiatrist, entered into a sexual relationship with D, a patient. It is alleged that during this period he failed to refer D to another psychiatrist or other medical practitioner. It is also alleged that, during the period from 22 August 1985 to 1 March 2000 (the post-consultation period), the plaintiff continued to participate in a sexual relationship with D and prescribed medication for her, including Serepax.
The second ground in the complaint alleges that, during the period from 7 November 1984 to 31 October 1985, the plaintiff failed to refer D to a psychiatrist or other medical practitioner for the management and treatment of D’s weight loss.
The third ground in the complaint alleges that, between 9 July 1985 and 19 July 1985 the plaintiff dishonestly claimed a Medicare payment in the sum of $96.00 in respect of the attendance by D at the plaintiff’s consulting rooms on 9 July 1995, an occasion on which the plaintiff is alleged to have had sexual intercourse with D.
The fourth ground of complaint alleges that, during the period from 9 July 1985 to 21 August 1985, the plaintiff failed to record in D’s patient case notes the changed nature of the relationship between the plaintiff and D, namely, the sexual and emotional relationship which had developed between them.
At a hearing before the tribunal on 6 June 2005, the plaintiff gave notice of an application to have the proceedings stayed as an abuse of process on the ground of unconscionable delay in the proceedings and the fact that D lived with the plaintiff after the consultation period for about 15 years. The tribunal held that it did not have jurisdiction to deal with the application. The plaintiff thereupon applied for judicial review of that decision. The Full Court dismissed the application.
The plaintiff has now applied to this court for a permanent stay of the proceedings on the complaint on the ground that the complaint constitutes an abuse of the process of the tribunal. The application is contested by the Board. The plaintiff contends that there has been unreasonable delay between the events complained of and the bringing of the complaint and that he cannot receive a fair hearing before the tribunal as a result.
Before dealing with the basis upon which the present application is put, it is convenient to summarise the relevant legal principles.
The power of superior courts to stay proceedings before disciplinary tribunals on the ground that those proceedings are oppressive or an abuse of process is well established: Herron v McGregor[1]; Walton v Gardiner[2].
[1] (1986) 6 NSWLR 246 at 251.
[2] (1993) 177 CLR 378 at 390.
In Walton v Gardiner Mason CJ, Deane and Dawson JJ[3] adopted the explanation of the nature and purpose of the jurisdiction which was given by Lord Diplock in Hunter v Chief Constable of the West Midlands Police[4]:
It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.
[3] ibid at 393.
[4] [1982] AC 529 at 536.
The fact that delay may result in the manifest unfairness described by Lord Diplock is also well settled. In Jago v District Court of New South Wales[5] Deane J said:
The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process.
[5] (1989) 168 CLR 23 at 58.
However, his Honour stressed the exceptional nature of the remedy[6]:
It is not practicable to seek to precisely identify in advance the various factors which may be relevant in determining whether, in the circumstances of a particular case, unreasonable delay has produced the extreme situation in which any further proceedings should be permanently stayed. The starting point will be consideration of the question whether the delay is so prolonged that it is unreasonable in the context of the particular case. An affirmative answer to that question will, at least where the accused does not share responsibility for the delay, prima facie indicate that the accused is entitled to some relief (e.g. an order fixing a date for trial). It will not, however, of itself and viewed in isolation, suffice to found an order that the proceedings be stayed. In that regard, it is relevant to note that, in the context of an accused being entitled to the benefit of any reasonable doubt, the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case. An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process.
[6] ibid 60.
Mason CJ commented[7]:
The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v Wingo (1972) 407 US 514; Bell v DPP [1985] AC 937, as explained in Watson (1987) 8 NSWLR 685, and Gorman v Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256, at 263-264.
[7] ibid 33.
In support of his argument that delay had resulted in prejudice in the present case, the plaintiff placed particular reliance on the following observations of McHugh J in Herron v McGregor[8]:
A person with reasonable ground for complaint, therefore, should pursue it with reasonable diligence. Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. As the United States Supreme Court said in Barker v Wingo (at 532) “what has been forgotten can rarely be shown”. In some cases delay makes it simply impossible for justice to be done: Birkett v James (at 317-318, 327). In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that: “Where there is delay the whole quality of justice deteriorates.” The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983). His Honour said (at 9-10):
“In the intervening five or six years, rumours waxed and waned. In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection. No presently stated recollection could be safely assumed not to have progressed upwards and not to be the product of one of these earlier stages. The sheer frailty of human memory of necessity required a most anxious and critical appraisal of the evidence of the witnesses, no matter how credit-worthy they might be.
It became apparent that in the years since August 1977 the recollections even of those with undoubted first-hand knowledge have in some instances faded, in some instances fermented, and in some instances expanded. Moreover, in many cases the realisation of the significance – indeed, the enormity – of what had occurred has tended to transmute into a more or less cynical acceptance of what had, or was believed or rumoured to have, taken place.”
Because delay creates prejudice and injustice, the policy of the law for over 300 years has been to fix definite time limits for prosecuting civil claims (usually a maximum of six years) and for 150 years to fix definite time limits for prosecuting summary criminal offences. Equity, though not bound by the common law limitations, applied them by analogy. The reasons which have impelled the legislature to fix time limits in civil and many criminal cases are equally applicable to disciplinary proceedings. When a number of years has elapsed since the conduct occurred, the lodging of a complaint prima facie needs justification although, of course, there can be no fixed rule.
[8] (1986) 6 NSWLR 246 at 254.
In deciding whether to permanently stay proceedings, the court is required to undertake a weighing process by taking into account the competing factors of prejudice to a party and the interests of justice. The process applicable to proceedings before a disciplinary tribunal was referred to by Mason CJ, Deane and Dawson JJ in Walton v Gardiner[9]:
The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.
[9] (1993) 177 CLR 378 at 396.
In G v Medical Board of the Australian Capital Territory[10] Higgins J applied these considerations in a case involving a complaint against a general medical practitioner for sexual conduct with a patient. His Honour said:
It is in the public interest that allegations having apparent validity be investigated and adjudicated upon. The public needs to have confidence in medical practitioners dealing with female patients and at least to know that complaints of misconduct will be seriously and carefully considered. That is not to say that the public interest demands an unfair process so far as practitioners are concerned.
[10] [1994] ACTSC 42 at 79.
It is not in dispute that D first consulted the plaintiff on 7 November 1984. At that time, D was married and had three children. The plaintiff was also married with children.
On 30 January 2002, D wrote to the Board complaining of the plaintiff’s conduct with particular relevance to the consultation period. The complaint was investigated and D gave a detailed statement to a government investigator on 9 July 2002. D told the investigator that, during the consultation period, she and the plaintiff had intercourse on three occasions in his consulting room.
D said that, after the consultation period, she continued to have a sexual relationship with the plaintiff. In due course, D separated from her husband and the plaintiff separated from his wife. D and the plaintiff commenced living together on 12 January 1993. They lived together until 1 March 2000. They have a son who was born on 13 April 1995.
In his affidavit dated 10 November 2006 filed in support of the present application, the plaintiff states that the delay in making the complaint against him has caused him prejudice in the preparation of his defence. He refers to a number of instances of alleged prejudice.
Personal diaries
The plaintiff states that all the personal diaries which he maintained from 1984 to 1988 have been destroyed. He said it was usual for him to note all his personal appointments in the diaries and they would have assisted him in giving evidence of events in his personal life at the time of the consultation period.
Counsel for the plaintiff pointed out that part of the allegation in relation to the sexual conduct during the consultation period was that it took place after the usual consulting hours. According to the argument, the plaintiff would be deprived of the opportunity to call evidence contradicting D’s version which might emanate from investigations suggested by the diary entries.
However, counsel for the Board has pointed out that the allegations are confined to occasions on which consultations took place. The notes of these consultations are available and it is intended to tender the notes in evidence at the hearing before the tribunal. In these circumstances it would seem that the private diaries would be of only limited potential relevance if their purpose was to rebut any suggestion that sexual intercourse took place on the days alleged.
Details of occasions on which other patients were treated
The plaintiff states in his affidavit[11]:
As a consulting psychiatrist, I regularly attended and treated a significant number of patients in private psychiatric hospitals. It was my usual practice to visit these patients in hospital on a daily basis, usually at the conclusion of consulting hours at my rooms. I am now unable to recall details of the patients. Without patient names I am unable to access any hospital records that record my whereabouts on particular evenings during the consultation period.
[11] Para [24].
The claim that the unavailability of records of treatment of other patients gives rise to prejudice against the plaintiff, comes into a category similar to that of the personal diaries. If the sexual conduct allegedly took place during consultations for which appointments had been made by the complainant and records of those consultations are available, the fact that other consultations took place on the same day seems only of peripheral relevance.
Workers at the Marion Medical Centre
The plaintiff states in his affidavit[12]:
I no longer work in the same rooms at the Marion Medical Centre. Further, persons who worked in or about the rooms or who worked in or about the vicinity, have left and their whereabouts are unknown to me. Their memory of events would now be unreliable. This provides further prejudice to me.
[12] Para [26].
There is no explanation as to how the workers in the vicinity of the plaintiff’s consulting rooms could be of any assistance in the proceedings before the Board. No potential prejudice on this account has been demonstrated.
Pharmaceutical benefits records
This aspect concerns the complaint that the plaintiff was guilty of unprofessional conduct in prescribing medication for D. The plaintiff states in his affidavit that relevant records of prescriptions are no longer available as pharmaceutical benefits records are not kept for longer than two years.
It appears that these records would have been destroyed in any event if a complaint was not made within the period of two years. However, the destruction of the records is of some relevance to the issue of prejudice.
Ms Gloria Thomson
The plaintiff’s secretary at the time of the consultation period was Ms Gloria Thomson. The plaintiff points out in his affidavit that D has alleged Ms Thomson told her that the consultations arranged by the plaintiff for D were of unusual length. D also refers to evening consultations when Ms Thomson was not present. According to the plaintiff, he consulted during business hours only and his secretary was always on duty. The plaintiff states in his affidavit[13]:
I am unable to recall the correct spelling of Gloria’s surname or her address, and all contact details and employment records were destroyed in the usual course back in the early 1990’s. I have been informed by my solicitor Ms Tracey and verily believe that efforts by a private investigator to ascertain Gloria’s whereabouts have been unsuccessful.
[13] Para [22].
It would appear that the Board has located Ms Thomson and on the hearing of this application an affidavit sworn by her on 18 December 2006 was tendered.
In the affidavit Ms Thomson gives details of the hours she worked. She states that, on some occasions, she left before the consultation with the last patient had finished. Ms Thomson states she has no recollection of D.
It was argued that Ms Thomson could have been an important witness for the plaintiff if D’s complaints had been made earlier and at a time when the relevant circumstances were fresh in Ms Thomson’s memory.
It is not clear how Ms Thomson would assist the plaintiff’s case. Furthermore, the statement attributed to her in D’s statement as to the length of consultations with D could not be led from the complainant in order to establish the truth of the remarks allegedly made to D by Ms Thomson. In any event, she is now available for interview by the plaintiff’s advisers.
The Family Court proceedings
In 1992 the plaintiff commenced proceedings in the Family Court in which he sought orders permitting him access to his children. D supported him and swore an affidavit which was used by the plaintiff in the Family Court proceedings. In the affidavit, D referred to the consultation period, but made no reference to any sexual relationship between her and the plaintiff during that period. The statement was taken by the plaintiff’s solicitor, but the plaintiff states in his affidavit that he has been informed that the solicitor’s file relating to those proceedings has now been destroyed.
It was argued that, as the solicitor’s file relating to the matrimonial proceedings has been destroyed, discussions between D and the plaintiff’s solicitor which were not included in her affidavit and which may have been of assistance to the plaintiff were not now available to him.

As I have said, D’s affidavit makes no reference to the sexual relationship between the complainant and the plaintiff. It is difficult to understand why D would have said anything to the solicitor which would be exculpatory of the plaintiff in the present proceedings or of assistance to him in these proceedings. In any event, the suggestion that there would have been such material is nothing more than speculation.
Conclusion
The delay in the making of the complaint in the present case is considerable. Initially, the vulnerable position of D as a patient seeking help for emotional problems may explain why she did not report the matter shortly after the consultations. From that time onwards, a more permanent relationship developed between D and the plaintiff. During this relationship it is understandable that she did not make an official complaint.
The delay and any motive D may have had for reporting the matter eventually may be relevant in assessing the reliability of the evidence. However, for the reasons which I have given, the level of potential prejudice is not of a particularly high order.
After weighing the delay and the extent of prejudice against the interest of the community in investigating complaints of this nature, I have reached the conclusion that the application for a permanent stay of proceedings should be refused.