O'Sullivan v Sydney South West Area Health Service (EOD)

[2005] NSWADTAP 68

Appeal Panel - Internal

CITATION:	O'Sullivan v Sydney South West Area Health Service (EOD) [2005] NSWADTAP 68
PARTIES:	APPELLANT Brendan Thomas O'Sullivan RESPONDENT Sydney South West Area Health Service
FILE NUMBER:	059072
HEARING DATES:	23/11/2005
SUBMISSIONS CLOSED:	11/23/2005
DATE OF DECISION:	11/28/2005
DECISION UNDER APPEAL:	O'Sullivan v Sydney South West Area Health Service (unreported)
BEFORE:	Chesterman M - ADCJ (Deputy President)
CATCHWORDS:	leave to appeal interlocutory decision - relevant/irrelevant considerations
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	031122
DATE OF DECISION UNDER APPEAL:	11/08/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Bankruptcy Act 1966 (Cth)
CASES CITED:	French v Sydney Turf Club Ltd (No 2) [2003] NSWADTAP 54 Re Will of Gilbert (Deceased) (1946) 46 SR (NSW) 318 Hession v Century 21 South Pacific (1992) 28 NSWLR 120 House v King (1936) 55 CLR 499 John Fairfax Pty Ltd v Police Tribunal (1986) 5 NSWLR 465 O’Sullivan v Sydney South West Area Health Service, Unreported, Administrative Decisions Tribunal, 8 November 2005 Park v Commissioner of Police [2000] NSWADT 4
REPRESENTATION:	APPELLANT C Murtough, barrister RESPONDENT A R Moses, barrister
ORDERS:	1. Application for leave to appeal dismissed; 2. Appeal dismissed; 3. Any application relating to the costs of this appeal must be filed and served, with supporting submissions, within 28 days of the date of these reasons. Any submissions in response must be filed and served within a further 28 days, or within such further period as the intervening holiday season may justify. In the absence of any submission to the contrary, the matter of costs will be decided ‘on the papers’ under s 76 of the Administrative Decisions Tribunal Act 1997.

The subject matter of this appeal

1 This decision relates to an application for leave to appeal and an appeal, both heard by me on 23 November 2005, against an interlocutory decision of the Tribunal, made in the course of determining a complaint under the Anti-Discrimination Act 1977 (‘the AD Act’). The complaint was brought by Dr Brendan O’Sullivan against the Sydney South West Area Health Service (‘the Health Service’).

2 Leave to appeal against an interlocutory decision is required under s 113(2A) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). Under ss 24A(1) and 113(2B) of this Act, an Appeal Panel may be constituted for determining both the appeal and the issue of leave to appeal by a single presidential judicial member.

3 The decision under appeal was given by Ms E Grotte, Judicial Member, on 8 November 2005. It was concerned solely with the order in which the Tribunal panel hearing the complaint should deal with two issues that had arisen in the proceedings. In the Tribunal’s reasons, these were described as ‘the Suppression Order issue’ and ‘the bankruptcy issue’.

4 The Suppression Order issue is, in brief, whether the Tribunal should revoke under s 75(2B) of the ADT Act an order that it had made on 4 April 2005 under s 75(2) (‘the suppression order’). This order prohibited (a) the publication of any material that would identify two named individuals referred to in two separate items of documentary evidence filed in the proceedings and (b) the disclosure of the identity of these two individuals to Dr O’Sullivan. The pseudonyms ‘Professor A’ and ‘Dr B’ were used. The terms of the order and the transcript of the hearing make it clear that witnesses called by the Health Service had disclosed the identity of these two individuals to the Tribunal and to Dr O’Sullivan’s legal representative.

5 The bankruptcy issue, again in brief, is whether the fact that Dr O’Sullivan is an undischarged bankrupt prevents him, by virtue of provisions of the Bankruptcy Act 1966 (Cth), from maintaining this complaint, in which he claims damages.

6 In the decision under appeal, Ms Grotte held that the Suppression Order issue should be dealt with after the bankruptcy issue had been determined. Her reasons are reproduced below.

7 Dr O’Sullivan’s appeal against this decision to me, sitting as an Appeal Panel of the Tribunal, is governed by Part 1 of Chapter 7 of the ADT Act. For present purposes, the most important provision within this Part is s 113(2). It states:-

(2) An appeal under this Part:
(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

8 It is well established (see, for example, French v Sydney Turf Club Ltd (No 2) [2003] NSWADTAP 54 at [29]) that if no error of law is shown in an appeal, the Appeal Panel should dismiss an application under s 113(2)(b) for the appeal to extend to the merits.

The background to the decision under appeal

9 The Tribunal Panel dealing with this complaint, in which Ms Grotte is the presiding Judicial Member, heard argument on the bankruptcy issue on 26 September 2005. It reserved its decision on this issue. At the hearing, Dr O’Sullivan’s representative advised the Panel that he might in due course apply for the suppression order to be revoked.

10 On 31 October 2005, Dr O’Sullivan filed an application to this effect, supported by a witness statement of the same date by his then solicitor, Mr Michael Duong. The application sought other orders that need not be set out here.

11 Mr Duong’s witness statement indicated that the principal grounds of the application for revocation of the suppression order were (a) that the order prevented Dr O’Sullivan’s legal representatives from defending him effectively in disciplinary proceedings, alleging unsatisfactory professional conduct, that the Health Care Complaints Commission had commenced against him in the Medical Tribunal and (b) that evidence was available (including some documents of which copies were annexed to the statement) to suggest that the information given to the Tribunal as to the identity of Professor A and Dr B was incorrect. The affidavit also stated that, due to medical problems being experienced by Dr O’Sullivan (regarding which the copy of a report of a consultant psychiatrist was annexed), it was very important for him that the proceedings relating to his complaint be expedited.

12 On the same day, 31 October 2005, the Registrar wrote to Mr Duong in the following terms (with a copy sent to Messrs Bolzan & King, who are the solicitors for the Health Service):-

I advise that the Judicial Member has asked me to inform you that the Tribunal considers that it is not appropriate to consider an application to set aside the Suppression Order made in relation to Professor ‘A’ and Doctor ‘B’ at this stage.

The Tribunal believes it is more appropriate to deal with such an application once both the bankruptcy issue and the dismissal application have been determined, unless you can show some prejudice to your client in adopting this course.

13 The ‘dismissal application’ referred to is an application that the Health Service had previously made for the summary dismissal of Dr O’Sullivan’s complaint.

14 On 1 November 2005, Bolzan & King wrote to the Registrar, referring to Dr O’Sullivan’s application of the previous day and submitting that no further applications by him should be allowed until the bankruptcy issue had been determined.

15 In a letter dated 2 November 2005 to the Registrar, Mr Duong asked that the Tribunal should reconsider its position with regard to Dr O’Sullivan’s application to set aside the suppression order and should have the application ‘re-listed as a matter of urgency’. In an accompanying affidavit of the same date, Mr Duong sought to address the matter of the prejudice that Dr O’Sullivan would suffer if this were not done.

16 The affidavit stated that on that same day His Honour Judge Walmsley SC, in the Medical Tribunal, had handed down a determination setting aside summonses to certain witnesses that had been issued at the instigation of Dr O’Sullivan. The ground of this determination was that the summonses had no legitimate forensic purpose. A copy of it was attached to the affidavit.

17 At paragraph 11 of his determination, His Honour had summarised in the following terms a contention put by Mr C Murtough, counsel for Dr O’Sullivan:-

… those responsible for notifying the Medical Board about Dr O’Sullivan’s unsatisfactory professional conduct were motivated by ill-will towards him, and did so for a collateral purpose, namely to assist the Health Service in other litigation to which he is a party.

18 At paragraph 17, His Honour had stated that the only ‘factual foundation’ that Mr Murtough could indicate was a set of ‘obvious errors’ in a letter written by an employee of the Health Service, ‘together with what Mr Murtough said was his client’s opinion [that] the complaint was made maliciously and to help the Health Service with the anti-discrimination matter’.

19 In his affidavit, Mr Duong stated that Dr O’Sullivan was obtaining advice from senior counsel regarding an appeal against Judge Walmsley’s determination. He contended that the evidence, accompanying his earlier witness statement, that the Tribunal had been misled as to the identity of Professor A and Dr B would support the ‘factual foundation’ of the claim that the complaint to the Medical Board had been made maliciously. He noted also that the time permitted for appealing against the determination would expire on 30 November 2005.

20 On 8 November 2005, Mr Murtough delivered to the Registry a hand-written letter. In this letter, he asserted that the Tribunal had been intentionally misled as to the identity of Professor A and Dr B. He pointed out that this assertion had not been denied by the Health Service. He claimed that the revoking of the suppression order was a matter of extreme urgency and that if necessary the matter should be determined ex parte.

21 Annexed to this letter of Mr Murtough were (a) a copy of a letter dated 7 November 2005 from Bolzan & King to Mr Duong, containing an allegation that the identity of Professor A and Dr B had been disclosed to Dr O’Sullivan in breach of the suppression order and (b) a ‘draft… minus exhibits’ of an affidavit dated 7 October 2005 by Mr Duong. In this draft affidavit, Mr Duong repeated, with some elaboration, the claim that the Tribunal had been intentionally misled. He also referred to ‘Dr O’Sullivan’s medical condition and the enormous distress being caused to him’ by these matters and stressed the importance, for this reason, of completing as soon as possible the proceedings relating to the complaint.

22 No copy of this letter by Mr Murtough or of its attachments was, it seems, served on Bolzan & King.

The terms of the decision under appeal

23 On 8 November 2005, Ms Grotte delivered her decision, without having considered it necessary to consider any submissions on behalf of the Health Service. She dismissed the application. Her reasons were as follows:-

Decision of the Tribunal is that the Applicant was asked on 31 October 2005 by letter to identify prejudice to Dr O’Sullivan if the Suppression Order issue is dealt with by the Tribunal after the bankruptcy issue is dealt with.

By letter of 2 November 2005 Michael Duong Solicitor, and this is confirmed by the contents of C. Murtough’s handwritten letter filed on 8 November 2005, identified the prejudice as being problems faced by Dr O’Sullivan in the Medical Tribunal regarding summonses that have been set aside by Judge Walmsley.

It is this Tribunal’s view that the prejudice identified has nothing to do with the proceedings before this Tribunal and although, the Tribunal considers that the matters raised are serious, they are more properly dealt with after the bankruptcy issue has been determined, as this will determine whether or not Dr O’Sullivan is able to proceed with his complaint in this Tribunal. It is anticipated that the bankruptcy issue will be decided in early December.

24 The Registrar conveyed these reasons to Mr Duong but not, it would seem, to Bolzan & King.

The circumstances and grounds of Dr O’Sullivan’s appeal

25 Dr O’Sullivan’s application for leave to appeal, his notice of appeal and an application for an urgent interim order staying the Tribunal’s decision of 8 November 2005 were filed on that day by Mr Murtough.

26 On 11 November, I heard and dismissed the application for a stay. I said that I could not see how any interim order bringing about a stay of the Tribunal’s decision of 8 November could be formulated. I also gave directions for the hearing, on 23 November, of the application for leave and the appeal.

27 On 14 November, Mr Duong filed a notice of ceasing to act for Dr O’Sullivan.

28 Although my directions of 11 November required amongst other things that the grounds of the appeal and supporting submissions should be filed and served by specified dates prior to the hearing, no such documents were filed by or on behalf of Dr O’Sullivan. It appeared, however, that a letter specifying the grounds and a set of submissions were served on Bolzan & King. The Health Service’s submissions in reply, prepared by Mr A Moses of counsel, were filed and served on 22 November.

29 At the hearing on 23 November, having drawn attention to these deficiencies in the conduct of Dr O’Sullivan’s case, I permitted Mr Murtough to hand up a document purporting to set out the orders sought by him and a copy of the material that had previously been served on Bolzan & King.

30 I reminded Mr Murtough of the requirement, stated above at [8], that his initial task in pursuing the appeal was to identify one or more errors of law in the Tribunal’s decision of 8 November. I suggested that a methodology such as that prescribed by the High Court in House v King (1936) 55 CLR 499 at 504-505 must be adopted. He agreed that it was insufficient for him merely to persuade me that, on the evidence and argument put before Ms Grotte, I would or might have reached a different conclusion.

31 Mr Murtough also accepted the authority of a passage in Re Will of Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 322, in which Jordan CJ emphasised that a ‘tight rein’ must be kept on appellate interference with judicial exercises of discretion on matters of practice or procedure. The Chief Justice went on to say:

The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

32 This principle has been applied on a number of occasions: see eg Hession v Century 21 South Pacific (1992) 28 NSWLR 120 at 122; Park v Commissioner of Police [2000] NSWADT 4 at [11 – 12].

33 Against this background, Mr Murtagh argued that three errors of law were discernible in the Tribunal’s decision. I shall deal with them in turn.

34 1. Failure to give due weight to the principle that Tribunal hearings should be conducted in public. The common law principle of ‘open justice’ is, as Mr Murtough pointed out, given statutory expression in s 75(1) of the ADT Act. The Tribunal’s power to make suppression orders under s 75(2) is only exerciseable if good grounds are shown. Relying on strong judicial affirmations of the importance of the principle of open justice (for example in the judgment of McHugh JA in John Fairfax Pty Ltd v Police Tribunal (1986) 5 NSWLR 465 at 476-477), Mr Murtough submitted that it was an error of law on Ms Grotte’s part not to implement this principle by holding that the application to revoke the suppression order should be given priority over determination of the bankruptcy issue.

35 While recognising that open justice is a consideration of prime importance, both at common law and under the ADT Act, I cannot agree that, as a matter of law, a determination as to the validity and appropriateness, past or future, of a suppression order must be treated as of such urgency that the resolution of all other issues that have arisen in the proceedings must inevitably give precedence to it. The principle of open justice is an important consideration to bear in mind, but in a decision such as confronted Ms Grotte it is just one of a number of important considerations.

36 In so ruling, I take account of the fact that two matters which are stated in the reasons to have weighed significantly with Ms Grotte are undoubtedly relevant and important. These are (a) that resolution of the bankruptcy issue would determine whether Dr O’Sullivan could proceed at all with the complaint (though a determination adverse to him would clearly not prevent him seeking to have the suppression order revoked) and (b) that this issue would be resolved early in December. If this competing issue had been a trivial one, or if determination of the suppression order issue was to be delayed for a very substantial period, there might be scope to argue that Ms Grotte’s decision not to give priority to considerations of open justice was an error of law.

37 2. Failure to give due weight to the principle that the Tribunal must protect itself from abuses of its process. Mr Murtough referred me to a number of authorities to the effect that courts and tribunals have wide powers to protect themselves against abuses of their process and that it is of very great importance that they should exercise those powers where there is clear evidence of such abuse. He submitted that the evidence that the Tribunal had been intentionally misled about the identities of Professor A and Dr B was credible evidence of a serious abuse of process and that Ms Grotte had erred in law by not treating it as an overriding reason for giving immediate priority to the suppression order issue.

38 My ruling on this matter is, however, along similar lines to my ruling on open justice. Again, an issue of great importance is raised. But Mr Murtough could not point to any authority establishing, as a principle of law, that the investigation of an alleged abuse of process, even if credible evidence is advanced, must in every case take priority over all other steps, whatever their nature, being taken in the relevant proceedings.

39 In this context, I again take account of the matters identified at [36] above.

40 3. Reliance on a finding that the prejudice to Dr O’Sullivan with regard to the Medical Tribunal proceedings ‘had nothing to do with’ the Tribunal proceedings. Mr Murtough argued that this aspect of Ms Grotte’s decision constituted an error of law because it suggested that she would treat as relevant to her determination only such prejudice to Dr O’Sullivan as was, in some way, related to the Tribunal proceedings.

41 To exclude from consideration any form of ‘unrelated’ prejudice could well constitute an error of law, under the principles stated in House v King. It could amount to a failure to take into account a material consideration when exercising a judicial discretion.

42 On this issue, I agree, however, with a submission by Mr Moses. He pointed out that Judge Walmsley, in his determination, found that the issues raised in the Medical Tribunal proceedings were quite different from those raised in this Tribunal (paragraph 16) and there was no basis for concluding that the complaint to the Medical Board was made ‘in response to and to assist with the anti-discrimination complaint’ (paragraph 26). He argued that, in view of this holding that the two sets of proceedings were effectively independent of each other, the relevant passage in the Tribunal’s reasons of 8 November should be interpreted as meaning that any alleged prejudice suffered by Dr O’Sullivan in the Medical Tribunal was not attributable to any aspect of the proceedings in this Tribunal. A statement to this effect could not be held erroneous.

43 I conclude therefore that once more no error of law has been established. I should add, however, that I have not found this to be an entirely straightforward issue. The relevant sentence in the Tribunal’s reasons is ambiguous and, on one possible interpretation, could have provided grounds for a ruling that the Tribunal had not taken a material consideration into account.

Concluding observations

44 As I understood Mr Murtough’s argument, these were the only three errors of law that he claimed to have been evident in the Tribunal’s reasons. He has not made out his case with respect to any of them.

45 Mr Murtough did refer also, however, to the fact that the material put before Ms Grotte included medical reports expressing serious concern about Dr O’Sullivan’s health. These did not, however, focus on the specific question to be determined by Ms Grotte, namely, whether the bankruptcy issue should be determined before or after the suppression order issue. The concern was a more general one that the proceedings as a whole should be concluded expeditiously. This material provided no grounds for arguing that Ms Grotte, through not referring expressly to the question of Dr O’Sullivan’s health, had failed to take account of a relevant consideration.

46 At the hearing of this appeal, Mr Murtough applied for leave to adduce further evidence. This chiefly took the form of medical reports stressing further the dangers to Dr O’Sullivan’s health if the proceedings were protracted for a significant further period. They included some suggestions that the continuation of the suppression order was of particular concern to him.

47 I rejected this application, however, as Mr Murtough could not point to any provision in the ADT Act under which I could grant it. He relied on the Tribunal’s broad power under s 73 to determine its own procedure. But this power is expressly made subject to the Act. Section 115(1) may indeed authorise an Appeal Panel to admit relevant new evidence when it has given leave under s 113(2)(b) for the appeal to extend to the merits. But where, as here, such leave cannot be given because no error of law has been identified, it seems clear that no power to admit new evidence is conferred.

48 In this context, Mr Murtough foreshadowed the filing of a further application to the Tribunal for the suppression order issue to be resolved forthwith, in support of which this new evidence would be adduced.

49 For the foregoing reasons, no grounds of appeal have been established and the appeal must be dismissed.

50 There was, as I have said above at [40 – 43], an element of ambiguity in the Tribunal’s reasons. But even allowing for this, I consider that the circumstances do not warrant a formal grant of leave to appeal.

51 In so ruling, I take account of two matters in particular: (a) it could be seen in advance, having regard particularly to the authorities cited above at [30 – 32], that the appeal was unlikely to succeed; and (b) the benefit to be gained by Dr O’Sullivan if it did succeed was insignificant in comparison with the detriment occasioned to all concerned, in terms of commitment of resources, through conducting the appeal. That benefit took the form of advancing by a short period – at most, a couple of weeks – the resolution of the suppression order issue. The foreshadowed filing of yet another application to the Tribunal at first instance, in which new evidence may be adduced, illustrates that to pursue this appeal could never have been reasonably regarded as the only way in which Dr O’Sullivan could seek to achieve this purpose.

52 Mr Moses foreshadowed an application by the Health Service, if it was successful, for costs relating to the appeal. Any such application must be filed and served, with supporting submissions, within 28 days of the date of these reasons. Any submissions in response must be filed and served within a further 28 days, or within such further period as the intervening holiday season may justify. In the absence of any submission to the contrary, the matter of costs will be decided ‘on the papers’ under s 76 of the ADT Act.

53 In conclusion, I wish to indicate that at a number of points in these appeal proceedings, those representing Dr O’Sullivan failed to take proper account of the principles and practices governing proceedings in this Tribunal. I have already mentioned failures to file at the Tribunal, pursuant to directions, material of importance for the appeal hearing, even though it had been served on the representatives of the Health Service. In addition, no convincing reason was offered for the failure to notify those representatives of the application filed on Dr O’Sullivan’s behalf on 8 November 2005. The orders sought in the document handed up to me on 23 November 2005 manifestly went beyond the range permitted to an Appeal Panel hearing an appeal from an interlocutory decision of a very limited scope. In consequence, much of the supporting evidence and argument was irrelevant. No attention seemed to have been paid to the provisions of the ADT Act governing the role and functions of Appeal Panels.

54 I have said, as did the Tribunal in its decision of 8 November 2005, that the matters raised on Dr O’Sullivan’s behalf with regard to the suppression order are very serious. It is all the more important, therefore, that those representing him are careful to follow prescribed procedures and maintain appropriate professional standards when pursuing these matters in the Tribunal or elsewhere.