O'Sullivan v Medical Tribunal of New South Wales and Health Care Complaints Commission

[2009] NSWCA 271

New South Wales

Court of Appeal

CITATION:	O'Sullivan v Medical Tribunal of New South Wales & Health Care Complaints Commission [2009] NSWCA 271 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	19 August 2009
JUDGMENT DATE:	19 August 2009
JUDGMENT OF:	Allsop P at 1
EX TEMPORE JUDGMENT DATE:	19 August 2009
DECISION:	1. Expedition granted. 2. Application to restrain the Medical Tribunal as presently constituted from proceeding with its hearing rejected. 3. Costs of today be costs in the summons. 4. No access be granted to the affidavit of David Ian Brown dated 19 August 2009 without the prior leave of a Judge of the Court.
CATEGORY:	Procedural and other rulings
PARTIES:	Brendan O'Sullivan (Plaintiff) Medical Tribunal of New South Wales (First Defendant) Health Care Complaints Commission (Second Defendant)
FILE NUMBER(S):	CA 40291/09
COUNSEL:	P Menzies QC; B Nolan (Plaintiff) G A Farmer (Second Defendant)
SOLICITORS:	Browns Legal & Consulting (Plaintiff)

40291/09

ALLSOP P

Wednesday 19 August 2009

BRENDAN O’SULLIVAN v MEDICAL TRIBUNAL OF NEW SOUTH WALES & HEALTH CARE COMPLAINTS COMMISSION

Judgment

1 ALLSOP P: This matter has come on urgently this afternoon. The plaintiff in a summons in the original jurisdiction seeks judicial review of a decision by the Medical Tribunal not to disqualify itself after an application was made to it so to do. The basis of the application was one of apprehended bias.

2 The summons that has been filed is accompanied by a notice of motion seeking various orders some of which are now unnecessary to deal with. The purpose of this afternoon was initially to ascertain precisely what needed to be done as a matter of urgency.

3 At the commencement, Mr Menzies Senior Counsel for the plaintiff with Ms Nolan, asked that the notice of motion be amended to seek an order that until further order the first defendant be restrained from taking any further step in the proceedings. I inscribed that amendment to the summons. It appropriately finds its place in the summons as the seeking of interlocutory relief and it can be noted that that application was in effect moved on today.

4 The general nature of the problem that gives rise to the application is set out in an affidavit of David Ian Brown sworn 19 August 2009. (It should be noted that I have made an order that that affidavit not be made available to anyone inspecting the file until further order. The affidavit contains the material that is said to be prejudicial to which I will now come.)

5 There is a complaint brought against Dr O’Sullivan by the Health Care Complaints Commission concerning steps that Dr O’Sullivan took in relation to scheduling a person under the Mental Health Act 2007 (NSW). The precise terms of the complaint are unnecessary to deal with. It should, however, be noted that the question of the credit and truthfulness of Dr O’Sullivan is likely to play a part in the resolution of the proceeding before the Tribunal.

6 The hearing began on Monday. The hearing is not proceeding today Wednesday in order to allow the plaintiff to come to this Court to seek such orders as he may be advised.

7 In the preparation for the hearing before the Tribunal, there was an agreement between the Commission and Dr O’Sullivan through their respective legal advisers that a certain documents being pages 12, 13, 14, 15 and 16 of the relevant bundle would not be placed in the tender bundle. The tender bundle was in due course in multiple copies provided to the members of the Tribunal.

8 I do not propose to describe in detail what the documents are beyond this, that they include a document purporting to be a statutory declaration signed by a Dr McDonald which Dr McDonald in a communication indicates was not created by him. Notwithstanding the agreement between the lawyers, the relevant documents were placed in the bundles of material supplied to the Tribunal. It became evident to those acting for Dr O’Sullivan on Monday or Tuesday that this had occurred and an application was made for the Tribunal to disqualify itself.

9 The ground of the application was apprehended bias. The view was put to the Tribunal that what they had in effect received was documents which might be seen to implicate Dr O’Sullivan in the “creation”, to use a neutral word, of the statutory declaration. I should add that I am told, although it is not clear from the material before me, that one page of the so-called statutory declaration had a telephone number and a name on it which would identify Dr O’Sullivan, the telephone name being an imprint of a facsimile machine.

10 An order is sought today restraining the Tribunal from further hearing the proceedings pending the outcome of judicial review proceedings. I am presently not minded to make any such order for the following reasons.

11 First, (even if I had power to make the order) it is not sufficiently clear to me that there is sufficient likelihood of success in relation to the fundamental claim to warrant the interruption of the Tribunal in the conduct of its hearing.

12 Secondly, even if it be correct that the Tribunal should have come to the view that it should disqualify itself, the proceedings for judicial review under ss 65 and 69 of the Supreme Court Act 1970 (NSW) remain available and any decision of the Tribunal could be quashed.

13 Thirdly, a five day hearing was set down to commence on Monday. Only one day of it has been undertaken. It seems unlikely, although it is not certain, that the proceedings will not finish this week. I am informed by Mr Farmer who appears for the second defendant, the Health Care Complaints Commission, that the matter will not continue next week as a running trial. Rather the available days of Judge Ainslie-Wallace from the District Court and the three non-lawyer members of the Commission will be sought and new days set down.

14 Whilst I am not persuaded that the step of interrupting the flow of the Tribunal’s work should be taken, the question of apparent bias of a tribunal such the Medical Tribunal is an important issue and I am prepared to grant expedition together with leave to approach the Registrar in relation to a hearing date. That course will, in all likelihood, enable the matter to be addressed in the next month or six weeks which would, if the Tribunal does not sit during that period, provide the equivalent of interlocutory relief in any event.

15 If the Tribunal proposes to resume within that period and the date for hearing of the application before the Court of Appeal has been set, it may be that another application for interlocutory relief could be made although I do not necessarily encourage that. The Court is not generally willing except in the clearest circumstances to interrupt tribunals such as the Medical Tribunal from undertaking a task based on interlocutory applications.

16 That said, the matter is one of some importance not only to Dr O’Sullivan but to the proper conduct of the Medical Tribunal and for those reasons I will grant the expedition that I have indicated and the leave to approach the Registrar. The costs of today will be costs in the summons.

Orders

1. Expedition granted.

2. Application to restrain the Medical Tribunal as presently constituted from proceeding with its hearing rejected.

3. Costs of today be costs in the summons.

4. No access to be granted to the affidavit of David Ian Brown dated 19 August 2009 without the prior leave of a Judge of the Court.

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10/05/2010 - Approval given from Medical Tribunal to upload judgment. - Paragraph(s) Whole judgment.