Thompkins v Medical Board of Australia - [2018] SASC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
THOMPKINS v MEDICAL BOARD OF AUSTRALIA
[2018] SASC 72
Judgment of The Honourable Justice Peek
1 June 2018
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
The plaintiff, a practising psychiatrist, applies for a permanent stay of proceedings in the South Australian Health Practitioners Tribunal arising from allegations that, between October 2002 and August 2004, he engaged in professional misconduct during and after course of his treatment of a patient, BW. The investigation into the plaintiff’s conduct occurred as a result of two mandatory notifications made by treating medical practitioners of BW on 18 February 2014 and 16 April 2014 respectively and included allegations that he entered into a sexual relationship with BW shortly after his treatment of her ceased.
The plaintiff asserts that the proceedings should be stayed on a number of grounds and particularly that, due to the defendant’s delay in notifying the plaintiff of the mandatory notifications and subsequent investigations (which delay was asserted to be contrary to the provisions of the National Law), the plaintiff had proceeded to routinely cull and destroy patient records including those of BW; and that he was now prejudiced due to the unavailability of potentially exculpatory evidence.
Held per Peek J (refusing the application for a stay):
1) The plaintiff has failed to demonstrate that actual - rather than presumptive – prejudice occurred as a result of asserted delay by: BW; or the medical practitioners in notifying the defendant of the alleged misconduct; or the defendant in investigating the alleged misconduct.
2) The defendant did not breach its statutory obligations to notify the plaintiff as soon as practicable. The minutes of committee meetings established compliance with the legislative scheme and the plaintiff failed to prove to the contrary.
3) In any event, having regard to the factual matrix advanced by the defendant (including substantial esoteric knowledge displayed by BW), the present case is not of the exceptional nature required to justify a permanent stay of disciplinary proceedings.
Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) s 31, s 35, s 152, s 160, s 161, s 162, Sch 1, referred to.
Minister for Natural resources v New South Wales Aboriginal Land Council and Anor (1987) 9 NSWLR 154, applied.
R v Chief Constable of the Merseyside Police; ex parte Calveley & Ors [1986] 1 All ER 257, distinguished.
Jago v The District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 77 CLR 378; R v Edwards (2009) 83 ALJR 717; Medical Board of Australia v Woollard (2017) 51 WAR 32; Police v Sherlock (2009) 103 SASR 147; R v B, P [2016] SASCFC 30; XD v Medical Practitioners Board (No. 2) [2002] VSC 351; Police v Pakrou (2008) 103 SASR 124; Dr SS v Health Care Complaints Commission and Anor [2002] NSWCA 391; Re Davis (1995) 81 A Crim R 156; Davis v Medical Board of the Australian Capital Territory (1994) 52 FCR 279; XG v Medical Board of Australia [2011] VSC 638, discussed.
Barton v the Queen (1980) 147 CLR 75; Herron v McGregor (1986) 6 NSWLR 246, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"actual prejudice"

THOMPKINS v MEDICAL BOARD OF AUSTRALIA
[2018] SASC 72
Civil
PEEK J.
Introduction

The plaintiff, Dr Richard Thompkins, a psychiatrist, applies to this Court for a stay of proceedings in the South Australian Health Practitioners Tribunal (the Tribunal) arising from a complaint filed by the defendant, the Medical Board of Australia, on 28 October 2016. The complaint alleges that the plaintiff engaged in professional misconduct between October 2002 and August 2004 in the course of, and subsequent to, his treatment of a patient, BW.
Background – the plaintiff’s medical treatment of BW
BW first attended the plaintiff’s psychiatric practice on 21 October 2002 for the purpose of obtaining a report in connexion with Family Court proceedings in which she was involved.[1] Thereafter, she attended some 63 regular appointments with the plaintiff between 21 October 2002 and 19 May 2004. In BW’s statement dated 9 June 2016, she asserts that the plaintiff made and performed a number of inappropriate comments and actions during the course of the appointments. She asserts that subsequent to the 19 May 2004 appointment, she ceased consulting the plaintiff so that she could “possibly have a relationship with him”; and that on 17 June 2004, they began a sexual relationship which lasted until 28 July 2004, when he ended the relationship.
[1] This report in exhibit BW1 within the exhibit BW1 of the affidavit of BW made 8 June 2017.
The position of the plaintiff is that he did not make or perform any inappropriate comments or actions during the course of the appointments and that he never performed any sexual act with BW during the course of the appointments or at any other time.
The National Law Regulating Health Practitioners
The statutory framework central to the proceedings before the Tribunal is set out in the Health Practitioner Regulation National Law (South Australia) Act 2010 (the National Law), which commenced on 1 July 2010. It governs the Medical Board of Australia, the Australian Health Practitioners Regulation Authority (AHPRA), and the regulation of health practitioners generally.
The defendant is one of 14 ‘National Boards’ established by s 31 of the National Law. The functions of the National Boards are prescribed by s 35, and include the overseeing of investigations into the conduct of medical practitioners and the reference of such investigations to the relevant tribunals.
AHPRA is the national regulatory agency established by the National Law,[2] and provides various support to the National Boards, including by managing investigations into the professional conduct of registered health practitioners.
[2] Health Practitioner Regulation National Law (South Australia) Act 2010, Sch 1, Part 4.
The commencement of the National Law also established mandatory reporting obligations for registered health practitioners. Section 160 of the National Law specifically permits a ‘National Board’ to investigate a health practitioner upon receipt of such mandatory reports (to be referred to henceforth as ‘notifications’). Ms Hayley Kennett, of AHPRA, deposed in her affidavit of 9 June 2017 as to the delegation of investigations into such notifications as at the time of the present notifications into the plaintiff’s conduct (early in 2014) as follows:[3]
10. When AHPRA received a notification it was lodged and sent to the Director of Notifications who would conduct an initial risk assessment and allocate it to one of the two teams in SA Notifications, each led by a separate Manager.
11. The Director determined whether the notification was in regard to a registered health practitioner and whether it related to a matter that was a ground for notification under the National Law.
12. The Director also determined whether the notification was classified as normal or high risk. In my experience, alleged sexual misconduct by a health practitioner would typically be considered high risk.
13. Once a notification was allocated to a team and then assigned to an Investigator, they arranged for a preliminary assessment report to be considered by a relevant Board delegate. The Board delegate, typically a sub-Committee on behalf of the Board, would decide the outcome at assessment, including whether an investigation should be conducted and provide strategic direction as necessary.
[3] Affidavit of Hayley Jane Kennett dated 9 June 2017, [10]-[13].
The Investigation and Proceedings before the Medical Tribunal
The first notification to AHPRA was made on 18 February 2014 by a treating psychiatrist of BW, and relevantly was as follows:
I am writing to you to make a mandatory notification regarding improper conduct by Dr Richard Thompkins, a psychiatrist, towards [BW]. In 2002 [BW] sought a medico legal report from Dr Thompkins. He continued to offer her psychiatric treatment thereafter, and in 2003, he engaged in a sexual relationship with her. Sexual intercourse occurred on 4 or 5 occasions at [BW]’s house. The therapeutic relationship subsequently ended and [BW] sought treatment with [redacted]. This information has been provided to me by [BW].
This mandatory notification was first considered by AHPRA (specifically the ‘SA Notifications Committee B’) in a “meeting” conducted by email correspondence on 11 March 2014.[4] The participants in this “email meeting” were four health practitioners and two community members. Ms Kennett was not “present” at, or involved in, the meeting. It was resolved that, first, an investigation would be launched, and secondly, that the plaintiff was not to be informed of the investigation. In respect of this second decision, the minutes note that:
[4]    HJK 1, minutes of meeting.
3.Decided not to inform the practitioner of this notification nor the proposed investigation, having formed the reasonable belief that:
a)    for the purposes section 151(3) of the National Law, giving the practitioner notice of this notification might prejudice an investigation of the notification or place a person’s health or safety at risk, and
b) for the purposes of section 161(4) of the National Law, giving the practitioner notice of the proposed investigation might seriously prejudice the investigation or place a person’s health or safety at risk.
Reasons
1.The allegation is extremely serious and, if substantiated, likely to amount to professional misconduct. Given the practitioner’s extensive notification history which includes notifications in respect of alarmingly similar allegations, it is recommended that the Board direct the writer to investigate the practitioner.
2.Given the practitioner’s legacy history, and historical concerns regarding his potential interference with evidence in respect of previous notifications and Tribunal proceedings, it is considered that giving the practitioner notice of:
a)    This notification might prejudice an investigation of the notification or place a person’s health or safety at risk
b)    The proposed investigation might seriously prejudice the investigation or place a person’s health or safety at risk.
3.Accordingly, it is proposed that the investigation proceed without reference to the practitioner until the following proposed tasks have been completed:
a)    Obtaining a statement from [MK] and her records for [BW]
b)    Obtaining a statement from [BK] and her records for [BW]
c)    with the assistance of [MK], making contact with [BW] and obtaining statement from her, as well as relevant documentary records (for example, her journal) and any other evidence of the conduct alleged, including from any other witnesses, and
d)    Potentially applying to the Magistrates Court for a warrant to seize records of [BW] from Dr Thompkins, noting the historical concerns over possible interference with patient records.
The second notification was made on 16 April 2014 by a treating psychologist of BW, and alleges:
The notifier is making a mandatory notification against the practitioner. The notifier states that one of their patients was groomed by her previous psychiatrist (the practitioner) for a sexual relationship.
The patient sought resolution from the practitioner after being in an abusive marriage. The Notifier states that the patient was encouraged by the practitioner to be sexually active as an answer to her problems. The patient was also encouraged to be of a ‘correct’ weight to be sexually desirable. The notifier states that the patient and the practitioner began a sexual relationship.
A little while into the relationship the patient stopped seeing the practitioner and then saw the practitioner in public. The practitioner allegedly phoned the patient a short time later to ask the patient how she was and she told him to never contact her again. The practitioner allegedly told the patient that if he was discovered that that would be the end of his career. The notifier states that her patient now has a mistrust of intimacy with men.
As a result of this second mandatory notification, the ‘SA Notifications Committee A’ met on 22 April 2014, and decided to investigate this notification in conjunction with the first mandatory notification. Ms Kennett was present at this meeting. Again, it was resolved that the plaintiff would not be notified of this investigation. The reasons recorded for so deciding employ very similar phraseology as the minutes of the first meeting.
On 23 April 2014, BW was first interviewed by AHPRA in relation to the plaintiff’s conduct. She was interviewed again on 19 May 2014. These two interviews, together with numerous diary entries which she provided to AHPRA, formed the basis for her statement signed on 9 June 2016.
The ‘SA Notifications Committee A’ again met on 7 January 2015. Ms Kennett was not present at this meeting. The minutes of this meeting convey that the committee reaffirmed their previous decision to not inform the plaintiff of the investigation on the basis of “historical concerns regarding his potential interference with evidence in respect of previous notifications and Tribunal proceedings” and that such concerns remained relevant.
Progress of the investigation was discussed generally and it was noted that Ms Chapman SC had prepared advice in relation to the evidence obtained, and suggested further investigative tasks be undertaken. It noted that “the investigation has centred on obtaining and corroborating a witness statement from the principle witness [BW], as well as seeking information from her previous and current treating practitioners”.
The next relevant meeting of ‘SA Notifications Committee B’ was on 2 September 2015. Ms Kennett was not present at this meeting. The committee decided to give the plaintiff notice of the investigations, for the following reasons:
a)Many of the investigative tasks recommended by Ms Liesl Chapman SC in her report dated 24 October 2014 have now been completed. Tasks that remain outstanding include:
i. the obtaining of [BW]’s patient records; and
ii. conducting an interview with the practitioner.
…
c)It is proposed that investigators will attend at the practitioner’s place of practice and serve him with written notice of the notifications and the investigation. At the same time the practitioner will be served with a “Schedule 5” notice compelling production of [BW]’s patient records. Investigators will remain on site until the patient notes are produced, thereby reducing the risk that the notes will interfered with in any way.
d)Given the proposed course of action by investigators, the Committee is of the view that it is appropriate the practitioner is now given written notice of the notifications and investigation.
The plaintiff was subsequently advised of the complaints made against him on 14 September 2015, in a letter authored by two employees of AHPRA. The letter enclosed a summary of the notifications made by the practitioners in respect of the plaintiff’s conduct, and required the plaintiff to provide BW’s patient file to AHPRA for the purposes of the investigation.
On 1 April 2016, the plaintiff attended a formal interview, as he was required under the National Law. A transcript of this interview was tendered by the plaintiff before this Court.[5]
[5] See NJI 5, exhibited to the affidavit of Nicholas James Iles dated 28 April 2017 (FDN 3).
On 28 October 2016, AHPRA filed the complaint, a copy of which was provided to Mr Iles on 2 November 2016. The complaint asserts one ground of professional misconduct occurring between October 2002 and August 2004, with 43 particulars. The crux of the allegations are as follows:
1.43.The Respondent’s conduct toward [BW] was professional misconduct in that he
1.43.1.failed to observe and maintain ethical and professional boundaries in the doctor-patient relationship;
1.43.2.exploited the inherent power differential in his relationship with his patient;
1.43.3.made unethical sexual advances to his patient in the form of comments and innuendo of a sexual nature;
1.43.4.encouraged the infatuation of his patient toward him and the dependency of his patient upon him;
1.43.5.sought to pursue an intimate personal and sexual relationship with his patient for his own gratification;
1.43.6.engaged in a sexual relationship with his patient/former patient.
The course of the proceedings before this Court
By summons dated 28 April 2017, the plaintiff applied to this Court for an order that the proceedings before the Tribunal be permanently stayed. He relies upon seven asserted grounds and their cumulative effect. The grounds may be summarised as follows (in the order in which I propose to consider them):
-Delay by BW in notifying the defendant of the allegations of alleged misconduct (whether personally or through the agency of other medical practitioners) (Ground 1.1);
-Delay by the medical practitioners in making their respective mandatory report’s to the defendant (Ground 1.2);
-The defendant’s refusal to disclose the reasons as to why it delayed notifying the plaintiff of both the mandatory notifications and the investigations (Ground 1.6);
-Failure by the defendant to investigate the allegations as quickly as practicable, contrary to s 162(1) of the National Law (Ground 1.5); and
-Delay in the defendant giving the plaintiff notice of both the mandatory notifications and the investigations, contrary to ss 152 and 161 of the National Law (Grounds 1.3 and 1.4); and the consequential unavailability of BW’s patient records through the plaintiff having destroyed them at a time when the defendant was investigating the notifications and had failed to disclose them to the plaintiff (Ground 1.7).
The trial was held on 28 November 2018. Judgment was reserved. At trial, the plaintiff tendered and relied upon two affidavits of the plaintiff (sworn on 28 April 2017[6] and 14 July 2017) and two affidavits of the plaintiff’s solicitor, Mr Iles (sworn on 28 April 2017[7] and 14 July 2017). The defendant tendered and relied upon two affidavits, that of Ms BW sworn on 8 June 2017 and that of Ms Hayley Kennett sworn on 9 June 2017.
[6] The words “complied with its obligations under the National Law and” at paragraph [70] were struck out.
[7] The exhibits included “NJI 5”, a complete transcript of the compulsory APHPRA interview of the plaintiff on 1 April 2016.
The cross-examination of the plaintiff
The plaintiff, during his cross-examination, was taken to various passages in his compulsory AHPRA interview held on 1 April 2016 (the interview). He accepted that he had asserted during the interview that: he had commenced a sexual relationship with a woman, MN, after his marital breakdown which was in June 2003; that the relationship with MN ended at about the end of 2006; and that he had stated in an unqualified fashion that MN had never been a patient of his.
The plaintiff further accepted in cross-examination that those answers in his interview had been incorrect; that the sexual relationship with MN had started in August or September 2000, much earlier than his marital breakdown; and that MN had in fact been his patient from at least early 2001 when he started prescribing medication for her to treat her anxiety and depression; and that he had written prescriptions for her as her treating practitioner at some thirty nine separate consultations (for which he had billed Medicare), over nearly a three year period which was concurrent with their sexual relationship. The plaintiff was unable to explain theses inconsistencies, other than to say that he had been in error in his answers at the interview.

During cross-examination, the plaintiff was also asked a number of questions designed to show that the interview demonstrated that, despite the absence of his clinical notes, he was able to independently recall details of BW’s presenting history. Without going into detail, I consider that the cross‑examination, taken together with the whole of the interview, does demonstrate that the plaintiff, assisted by some materials that have been recovered, does have some significant ability to do so.
Since the questions of credibility and reliability of the witnesses will be of great importance at a hearing of the Tribunal should it proceed, I will abstain from making any comment concerning any views I may have formed concerning the credibility of the plaintiff.
Cross-examination of Ms Hayley Kennett on her affidavit
Paragraphs 25 and 29 of the affidavit of Ms Kennett were as follows:
[25]AHPRA records show that the investigation included obtaining medical and counselling records and drafting [BW’s] statement. The investigation also sought information to corroborate [BW’s] information, including obtaining historical records for a court action against the Plaintiff in the District Court of South Australia and attempting to access historical Family Court records relating to the Plaintiff’s divorce proceedings. An advice on evidence was sought from Senior Counsel which led to further contact with [BW] regarding her statement and other lines of investigation.
…
[29]It is acknowledged that the investigation could have proceeded more expeditiously, however, there were proper inquiries being made during the period April 2014 when AHPRA first met [BW] and September 2015 when the Plaintiff was given written notice of the two mandatory notifications.
Mrs Shaw QC stated that the purpose of her cross-examination was:
… to address her paragraph 25 and clarify that in relation to the response of the defendant to the delay, and ensure that what I am putting to the court based on the documents is correct. … I simply want to identify and clarify what she’s referring to there in relation to what was before the notification and what was after and in fact what material they had, because as we contend, and there are some further matters in the affidavit that this relates to, and I wish to put a proposition to put based on paragraph.
Cross-examination proceeded for some time, but, with respect, did not proceed far beyond the inferences that were available on the face of the various documents before the Court. Part of the problem was that, in respect of a number of matters inquired about in cross-examination, Ms Kennett was not responsible for, or able to comment about, what inquiries and tasks had been performed or not performed by other persons, at what times. However, no persons other than Ms Kennett had been subpoenaed by the plaintiff to attend.
Further, and of importance, Ms Kennett attended only one of the three meetings at which it was resolved to not give notice of the notifications or investigations to the plaintiff, namely only that of 22 April 2014 (and even then, not in the capacity of Chairperson). Mrs Shaw did not attempt to cross-examine Ms Kennett concerning what belief was held by the committee at the 22 April 2014 meeting or whether such a belief was reasonable; and the plaintiff took no steps to subpoena the chair of any of the three meetings; or anyone else who was present at any of the meetings; or any relevant documents that were before any of the meetings. This matter is returned to below.
The final submissions in brief over view
After cross-examination and re-examination of the witnesses concluded, the parties proceeded to final addresses.
In overview, the plaintiff placed greatest emphasis by far on the group of grounds 1.3, 1.4 and ground 1.7. The plaintiff asserts that, due to the defendant’s delay in giving him notice of the mandatory notifications and their investigations (which, it is asserted, was contrary to sections 152 and 161 of the National Law), the plaintiff proceeded with a culling of his patient records, including those relating to BW. He thereby unwittingly destroyed potentially exculpatory evidence; if he had known that a notification had been made by BW, he would preserved all records relating to her.
The principles governing stay applications
Before proceeding further with counsels’ respective submissions, I will address some relevant general principles which are clear on the authorities.
The remedy is exceptional in nature
The power of a court to permanently stay proceedings is an exceptional remedy to be granted only in the clearest of cases. The High Court has made clear that the granting of a stay requires more than unfairness alone; the situation must be such that there would be an abuse of process were the trial to proceed.[8] In Jago v The District Court of New South Wales (Jago), all five Justices agreed that the power to grant a permanent stay of proceedings will only be exercised in exceptional circumstances. Thus Mason CJ stated:[9]
[8] This has been clear since Barton v the Queen (1980) 147 CLR 75, where Wilson J stated: “ (T)he concept of abuse of process carries with it the inference of a trial which if allowed to proceed must necessarily be unfair to the accused. It is a fundamental defect which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.” See also R v Edwards (2009) 83 ALJR 717, [34] (per Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[9] (1989) 168 CLR 23, 30-31; 34.
In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed.
… the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. …
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[10].
[10] (1987) 31 A. Crim. R. 256, at pp. 263-264.
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton[11], per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be “able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute”: Clarkson[12].
Brennan J observed:[13]
When serious delay is attributable to the prosecution and an accused has been prejudiced thereby, the courts are tempted to offer the remedy of a permanent stay. The remedy marks the court’s disapproval of the failure of other branches of government to furnish the resources necessary to cope with an accumulation of criminal cases awaiting trial; it places pressure on government to provide and to use the resources needed; and it avoids the possibility that a person may be convicted after a trial in which he may suffer some prejudice in his defence. However understandable the granting of a permanent stay for delay causing prejudice might be, the remedy cannot be supported unless it would truly be an abuse of process to try the case. In determining what does amount to an abuse of process, the considerations which favour the expansion of that notion so that it will support the remedy of permanent stay for delay causing prejudice to an accused must be set against countervailing considerations which have particular force in the criminal jurisdiction.
…
Moreover, although our system of litigation adopts the adversary method in both the criminal and civil jurisdiction, interests other than those of the litigants are involved in litigation, especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. If a power to grant a permanent stay were to be exercised whenever a judge came to the conclusion that prejudice might or would be suffered by an accused because of delay in the prosecution, delay in law enforcement would defeat the enforcement of the law absolutely and prejudice resulting from delay would become a not unwelcome passport to immunity from prosecution. Refusal by a court to try a criminal case does not undo the anxiety and disability which the pendency of a criminal charge produces, but it leaves the accused with an irremovable cloud of suspicion over his head. And it is likely to engender a festering sense of injustice on the part of the community and the victim. The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind.
And Gaudron J observed:[14]
The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. …
The notion of “presumptive prejudice”, as presented by reference to the facts of this case, assumes that, by reason of delay, the trial of the charges will involve some general, but unspecified, prejudice or damage, including, it would seem, prejudice in the conduct of the defence by reason of staleness of evidence. So stated, no feature of the proceedings presents itself as one as to which a court could be satisfied that the proceedings were thereby rendered so unfair that they were insusceptible of remedy by less drastic means. Accordingly, there is no power to grant a permanent stay of proceedings on the ground of “presumptive prejudice”.
[11] (1980) 147 C.L.R., at p. 1ll.
[12] [1987) V.R., at p. 973.
[13] (1989) 168 CLR 23, 49-50
[14] (1989) 168 CLR 23, 76-78.
The need for actual rather than not possible prejudice
It is clear that a party seeking the permanent stay must establish that if a trial were to proceed there would be actual prejudice caused by the absence of this evidentiary material; the mere possibility of prejudice is insufficient. Thus, in Walton v Gardiner (Walton), the majority used the word ‘would’ rather than words such as ‘could’ or ‘might’. As an example, their Honours referred to:[15]
… the result of a weighing process involving a subjective balancing of the various factors and considerations supporting or militating against a conclusion that a continuation of the proceedings in the Tribunal would be so unfairly and unjustifiably oppressive of the respondents as to constitute an abuse of the Tribunal’s process. (Emphasis added)
[15] (1993) 177 CLR 378, 398 (per Mason CJ, Deane and Dawson JJ).
In the more recent decision of the High Court in R v Edwards[16] (Edwards), this distinction was emphasised. There, a Justice of the Tasmanian Supreme Court had permanently stayed a prosecution for offences against the Civil Aviation Act 1988, in circumstances where the Civil Aviation Safety Authority did not appoint an investigator until some 52 days after the alleged offending (in October 2001), by which time data recorded relating to the alleged offending had been overwritten. Further delays occurred in the investigation and prosecution such that complaints were not sworn against the defendants until March 2004, and the matter had not gone to trial by 26 November 2007 when the stay was granted. In setting aside the stay, the Court held that the Judge had misstated the test in Walton:[17]
His Honour purported to state the test by reference to the decision of this Court in Walton v Gardiner. A majority of the Court approved each of the formulations of the test applied by members of the Court of Appeal; “whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness”, or whether the “continuation of the proceedings would be ‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process”. Their Honours observed that it had been made plain by the Court of Appeal that the court would only be satisfied that continuation of the proceedings constituted an abuse in an exceptional or extreme case.
The respondents acknowledge that the primary judge misstated the test in asking whether the loss of primary data and the delay could constitute an unacceptable injustice or unfairness. However, they submit that a fair reading of the whole of his Honour’s reasons discloses that the error was one of expression and not of principle. This submission must be rejected. Throughout the reasons it is apparent that his Honour is directing attention to the risk that the lost evidence may be productive of unfairness to the respondents.
[Footnotes omitted]
Their Honours ultimately concluded:[18]
It is well established that the circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition. It is not necessary to consider whether there may be circumstances in which the loss of admissible evidence occasions injustice of a character that would make the continuation of proceedings on indictment an abuse of the process of the court. This is not such a case. The content of the Monitor List and the recording made by the FDR is unknown. In these circumstances it is not correct to characterise their loss as occasioning prejudice to the respondents. The lost evidence serves neither to undermine nor to support the Crown case. It is to be observed that if the Crown is unable to exclude the hypothesis, that the runway lighting was illuminated as the aircraft moved along it and that it ceased operating coincidentally at the time of take-off, it would fail to establish an element of the principal and the alternative offence.
There is no feature of the delay that justifies taking the extreme step of permanently staying proceedings on the indictment. It has not been established that any prejudice arising by reason of the delay cannot be addressed by direction.
[16] (2009) 83 ALJR 717 (per Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[17] (2009) 83 ALJR 717, 720 [23]-[24].
[18] Ibid, [33]-[34].
In similar vein, in the recent decision of the West Australian Full Court, Medical Board of Australia v Woollard, Newnes and Murphy JJA noted:[19]
The exercise of the power to dismiss or permanently stay proceedings should only be exercised in extreme or exceptional cases. The onus is on the person asserting abuse of process to prove it. It involves the party asserting abuse to establish that the controversy should be disposed of without a determination on the merits, and accordingly the onus is a heavy one. The categories of abuse of process are not closed. Abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. Thus, the court must be satisfied that the continuation of the proceedings would cause unacceptable injustice or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. A mere risk of unacceptable injustice or unfairness is insufficient.
[19] (2017) 51 WAR 32, [136].
The meaning of the word “would” as used in the present authorities
I will add a comment that is obvious, but is perhaps worth making. It is that the word “would” (as referring to a forecast of what would occur in an eventual trial if a stay were not granted) is primarily selected as an appropriate contrast to words such as “could” (which may connote no more than a possibility or a risk). However, the word “would” does not require certainty (if indeed any forecast of what will occur at a future trial can ever be said to be “certain”). Rather, it connotes a very high level of probability on a spectrum of prediction, on which spectrum words such as “possibility” or “risk” occupy a much lower rank.
That the word “would” in the present context is very much a relative term is confirmed by the fact that it finds itself inexorably linked to other words or terms which themselves also connote matters of degree. Thus in Walton, their Honours referred to: “the result of a weighing process involving a subjective balancing of the various factors and considerations supporting or militating against a conclusion that a continuation of the proceedings in the Tribunal would be so unfairly and unjustifiably oppressive of the respondents as to constitute an abuse of the Tribunal’s process.”[20] Each of the words “unfairly”, “unjustifiably” and “oppressive” reflect concepts involving matters of degree; they each involve matters of judgment, as indeed does the ultimate question of whether “an abuse of the Tribunal’s process” is constituted in a particular case.
[20] (1993) 177 CLR 378, 395-396 (per Mason CJ, Deane and Dawson JJ).
As their Honours emphasised in Walton, what is involved is “a weighing process involving a subjective balancing of the various factors and considerations”.[21] However, while it is clear that subjectivity and relativity are involved, it is also clear that the granting of a stay is truly exceptional and that the use of the word “would” strongly reinforces that requirement.
[21] Ibid.
Stay applications in the context of the asserted loss of evidential material
In Police v Sherlock (Sherlock), the appellant had been convicted of theft of goods from a department store. In brief, the facts were that the store operated security cameras but the footage was no longer available at the time of the trial; the Magistrate stayed the proceedings on the basis that the camera footage may have cast doubt on the evidence of the principal prosecution witness (Mr Bryant) or supported the evidence of the defendant. On appeal Doyle CJ (with whom Sulan and Kourakis JJ agreed) set aside the stay order. His Honour stated:[22]
… the exceptional nature of the remedy must be borne in mind. Ordinarily, when a court’s jurisdiction is invoked, that jurisdiction must be exercised. Secondly, it is not a court’s function to intrude upon the independent discretion of those State officials who have the responsibility to decide whether or not a person should be prosecuted. The power to stay proceedings cannot be used as a disguised or indirect means of stopping the prosecution because the court considers that the bringing of the prosecution is, in a general sense, harsh or unfair. Moreover, as is emphasised in the authorities, the power to stay proceedings is exercised to prevent unfairness that amounts to injustice. In some cases the power will be exercised because of a risk that a trial will be unfair. But particular care is called for when the court is asked to stay proceedings, not because they can be shown to be unfair, but because of a risk that they will be unfair to the accused. Finally, the court must balance the right of the accused to a fair trial, and the public interest in the bringing to trial of a person charged with an offence and the question of innocence or guilt being decided. The decision to grant or to refuse a stay of proceedings is not to be made solely from the point of view of the accused. The public interest must also be considered.
For these reasons, when asked to stay proceedings, a court is not by any means concerned solely with the question of whether the trial will be fair.
Doyle CJ later observed:[23]
(I)t cannot be said that the case is concerned with evidence that is unavailable. It is concerned with “evidentiary material” that might or might not have been relevant. …
It is not known, and cannot now be known, whether the relevant security camera recorded images of Mr Sherlock when, according to Mr Bryant, he selected the boxes in question and removed the ultra labels. All that can be said is that it is possible that the camera filmed and recorded Mr Sherlock for some of the relevant time. Having regard to the evidence about the position of the camera, there is no reason to think that the camera filmed the whole of this part of the events in question. Even if the camera filmed and recorded Mr Sherlock, the film might have supported Mr Bryant’s evidence, or it might have undermined his evidence. It might have thrown no light on the matter at all, if it recorded only a fleeting glimpse or glimpses of Mr Sherlock. So the unfairness is said to arise from the unavailability of the film (as a result of the failure to preserve it in case it was required), it now being impossible to know whether the film contained anything relevant and, if it did, it being impossible to know whether it assisted the prosecution or the defence.
…
Bearing these things in mind, and to use the words of Wilson J in Barton, I cannot identify “a fundamental defect which goes to the root of the trial”. … The circumstance relied on by Mr Edwardson, the loss of possibly material evidence, is the kind of thing that happens not uncommonly. … It is a case of possible prejudice. It is equally possible that the prosecution case has been prejudiced.
[22] (2009) 103 SASR 147, 164-165.
[23] (2009) 103 SASR 147, 154-155.

His Honour concluded that the Magistrate and the single Judge had erred:
Each of them has invoked a much wider notion of unfairness than can be justified by the authorities. The premise underlying their decision that the proceedings should be stayed appears to be that the loss of a chance (to use an expression from another context) to adduce favourable evidence, or the possibility that the missing film would assist the defence, is sufficient to characterise the proceedings as unfair, and to justify a stay. In my respectful opinion, as I have said, that is a concept of unfairness which goes beyond what the authorities permit. Indeed, in my opinion, when the circumstances are properly considered there is no relevant unfairness at all. (Emphasis added)
And in R v B, P, Kourakis CJ (with whom Kelly and Bampton JJ agreed) stated (again in the context of asserted loss of evidential material):[24]
[24] [2016] SASCFC 30, [31]-[37].
[31]In re-evaluating the effects of the loss of evidence on the fairness of a trial the following considerations are relevant:
·      Courts have always made findings of fact on less than all of the available evidence.
·      The procedural and substantive rules of the common law trial process are designed to meet the practical reality that findings of fact will often be made on imperfect evidence. These rules include the presumption of innocence, the rules against double jeopardy, the right to reasonable notice of the prosecution case and the prosecution obligation to disclose exculpatory as well as incriminatory material.
·      The common law and statutory rules require directions to be given in a criminal trial which address potential unfairness.
[32]Nonetheless, there may be exceptional cases where an unacceptable risk of miscarriage subsists despite the protections to which I have referred.
[33]Deciding what is ‘unacceptable’ is a normative judgment. A judicial ‘assessment on anything less than all of the possible available evidence will always carry with it a risk of error in a general sense, but it cannot be the law that a trial must be stayed whenever some evidence that might, theoretically, have raised a doubt for one reason or another cannot be produced.
[34]The nature and strength of the prosecution evidence which will be called must be weighed against the nature of the evidence which has been lost.
[35]In weighing the competing circumstances, the public interest that prosecutions for serious offences that have at least a reasonable evidential foundation are brought to trial is a very important consideration. It is the very constitutional function of courts to do justice by exercising their jurisdiction. In all but the most exceptional of circumstances justice will be denied when courts close their doors to a supplicant.[25] Exceptional circumstances will only exist where the judicial function cannot be acceptably performed.[26]
[36]The lost opportunity of an accused to present evidence or test the prosecution case should not be considered in isolation and is certainly not determinative. The critical issue is whether the court’s capacity to fairly assess the evidence which will be led has been so compromised that there is an unacceptable risk of a miscarriage of justice. Those cases will be rare and exceptional.
[37]In evaluating the contention that a defendant cannot, or will not receive a fair trial, it is important to appreciate that on an application for a stay of proceedings that contention requires a prospective evaluation of the factual issues which might arise at trial and the nature of the evidence which might be led to prove or disprove the disputed facts. It is necessarily difficult to be certain about how the trial will actually proceed. Moreover, a court faced with an application to stay proceedings must consider the extent to which any forensic disadvantage might be adequately dealt with by a direction to the jury.
[38]Ultimately an applicant for a stay can only succeed if the Judge is satisfied that the capacity of the court to safely adjudicate the complaint or Information will necessarily be unacceptably compromised. If no more is shown than that the trial might be unfair, the defendant’s remedy, if that is ultimately the case, is an appeal on the ground that there has been a miscarriage of justice. The question on an application for a stay is whether or not the defendant should be spared a trial because there is no realistic prospect of a fair trial. If there is no such prospect, it would be oppressive to allow the prosecution to continue. The mere possibility of unfairness cannot be enough to stay a trial because if that were the test, it would shut out prosecutions which may well have been fairly tried.
[25] Duncan v Crews (2001) 161 FLR 250 at 257-8, [49]; Jago v District Court (NSW) (1989) 168 CLR 23 at 47; Williams v Spautz (1992) 174 CLR 509 at 519; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at 303-4, [158]-[161] (Kirby J).
[26] Duncan v Crews (2001) 161 FLR 250 at 258, [54] (Greg James J).
Stay applications in the context of disciplinary proceedings
In Walton, the High Court considered the matter of applications for a stay of proceedings in the context of disciplinary proceedings in a Medical Tribunal. Mason CJ, Deane and Dawson there noted:[27]
In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective - i.e. protective of the public - in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds.
…
As was pointed out in Jago (49), the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. 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. (Emphasis added)
[27] (1993) 177 CLR 378, 395-396.
I also have regard to the following remarks of Bongiorno J in in the context of allegations against a Doctor of sexual misconduct during consultations in XD v Medical Practitioners Board (No. 2):[28]
[12] In applying the weighing process referred to by the High Court in Walton v Gardiner to the facts of the present case it is not irrelevant that, as this Court determined in its earlier judgment in this case, the Panel is required to engage in an investigative process the end result of which may be a finding that the practitioner has engaged in unprofessional conduct of a serious or non-serious nature, a finding which exonerates him completely or a declaration that it is unable to make any of those findings on the evidence before it which it accepts. Of paramount importance from the public interest point of view is not that a finding of any particular type may be made for or against a practitioner but rather that a complainant’s allegations are, in fact, properly investigated. It is in a proper investigation, impartially carried out, that the public interest lies. There is a very heavy burden indeed imposed upon a practitioner who seeks, from this Court, an order which would stop such an investigation from being held. …
[23] The exercise in which this Court must engage to determine whether a stay is justified in this case requires it to balance the disadvantage flowing to the plaintiff from the age and lack of detailed particulars of the allegations to be investigated (particularly as to the dates upon which the events alleged are said to have occurred) and his lack of records which might have assisted his defence of the allegations against the undoubted public interest in the exposure of malpractice by those licensed by the State to carry out invasive and intimate examinations of their fellow citizens in the interests of those citizens’ health. The trust and confidence which the community properly has in the integrity of the medical profession can only be maintained if the community also has confidence that investigative bodies such as the defendants in this case will be willing and able to investigate complaints and act upon them if satisfied that they are justified.
[28] [2002] VSC 351.
The apparent strength of the prosecution case
The apparent strength of the prosecution case is a highly relevant consideration since the granting of a permanent stay ex hypothesi disposes of a controversy “without a determination on the merits”.[29] In Police v Pakrou, in the context of loss of evidential material, Kourakis J (as he then was) observed:[30]
First, there must be a consideration of the nature and strength of the evidence that will be called. That proposition follows, I think, from the fact that the power to stay proceedings is a discretionary power that must of necessity focus on the risk that the proceedings will result in a miscarriage should they be allowed to continue. If there is no feature of the evidence that creates any difficulty in properly weighing its probative value, then the case for a stay will be weak. Where the combined weight of the evidence is great it will be particularly difficult to say that there is an unacceptable risk of miscarriage. That will be even more so where there is strong circumstantial evidence which is independent of the evidence that has been lost. If evidence which is independent and unconnected to the lost evidence is strongly probative of guilt then it must follow that there is very little risk of a miscarriage of justice. I accept that there is an element of circularity involved in this proposition. The complaint made on a stay application where evidence has been lost is that the prosecution case only appears to be strong because the defendant has been denied the capacity to test its strength by the very failure of the prosecution or the police to obtain or preserve all of the material evidence. However, I suspect that the paradox is more apparent than real. On an application for a stay the court does not determine whether the prosecution evidence has proved the offence beyond reasonable doubt. Rather, it is engaged in a form of risk assessment. The question is whether, if the court were to convict the defendant, the conviction would be attended by an unacceptable or substantial risk of miscarriage. To my mind it is possible for a court to make a sound assessment about the degree of risk of a mistaken assessment of the weight of the evidence that is received in the absence of the lost evidence. If the relevant consideration is recast in that way there is no logical invalidity in the approach of the authorities.
[Footnotes omitted]
[29] Medical Board of Australia v Woollard (2017) 51 WAR 32, [136] (per Newnes and Murphy JJA).
[30] (2008) 103 SASR 124, 131-132.
In the present case, the defendant has provided the Court with a 16 page statement of BW together with over one thousand pages of exhibits in support of the statement. In her statement, BW notes that she keeps a written diary, and that she has used her entries from 2003 and 2004 to assist her in the preparation of the statement; these apparently contemporaneous entries were exhibited to her statement as BW2 and BW3.[31]
[31] The transcript of the interview with Richard Thompkins dated 1 April 2016 suggests that these dated entries broadly correspond to the dates on Medicare records for BW’s treatment by the plaintiff.
The combination of the statement and the diary entries is specific and detailed. It contains many factual assertions in relation to the plaintiff’s personal life, many of which are capable of independent verification such as the names of his children, the school they attend, and what the plaintiff did for work prior to becoming a psychiatrist. If proven, it is unlikely in the extreme that such information was conveyed to BW solely in the context of her consultations with the plaintiff.
Further, an important aspect of BW’s narrative is that she and the plaintiff visited various premises associated with the plaintiff. During the investigation, she has demonstrated an ability to identify such premises, including at Victor Harbor and Aldinga. This is highly suggestive of the relationship between the plaintiff and BW being one that transcended the professional boundaries of a psychiatrist-patient relationship.
These matters are to be considered against the background of the plaintiff’s stance that he did not discuss personal matters with BW and that he did not associate with her outside consultations. Thus when interviewed by AHPRA, he stated:[32]
[32] Interview with Richard Thompkins dated 1 April 2016, Affidavit of Nicholas James Iles Exhibit NJI5.
Q. Do you, just as a general question, do you ever discuss personal, your own personal matters with patients?
A. Can you be more specific?
Q. Well, for example, members of your family, personal issues you might be going through, where you live, hobbies you might have, things like that?
A. Well that’s, you know, that’s a real scatter-gun question, with all due respect. I mean, there’s lots of, my, there’s a spectrum within psychiatrists, and I’m very much towards one end of the spectrum, because as best I can I like to be a blank canvas. The patient always colours in the canvas the way they want to do it, so to speak, but I’m not big on making personal disclosures, not at all. Hobbies, yes, yeah, why not. I do talk about my hobbies sometimes.
Q. Would you talk about personal matters relating to your family or children or any of those type of things?
A. Very seldom. But most cases, not at all… In fact, I have a, I have a, I have a bit of a thing about that. Most cases, definitely not at all.
Q. Do you recall whether you discussed any such matters with [BW]?
A. No.
Q. You don’t recall, or you didn’t discuss any such matters?
A. We’re talking 12 or 13 years ago. I don’t recall, but I think in all probability, I did not discuss.
Q. In the course of treating a patient, would you ever attend a patient’s house?
A. For a home visit, say. Oh, very rarely. I can probably, how long have I been there? 18 years. I can probably count on the fingers of one hand the number of people. That would be for home visits. So the answer to your question is almost never, but of course occasionally in special circumstances.
Q. Did you ever attend [BW]’s house?
A. Never.
Q. Would a patient ever attend your house?
A. Absolutely never.
Q. Did [BW] ever attend your house or any property you have an interest in?
A. Absolutely never.
CONSIDERATION OF THE PLAINTIFF’S STATED GROUNDS
The plaintiff’s stated grounds are summarised and grouped above at paragraph [19]. I proceed to consider them in that order of groupings.
Delay by BW in notifying the defendant of the allegations of alleged misconduct (whether personally or through the agency of other medical practitioners) (Ground 1.1); and delay by the medical practitioners in making their respective mandatory report’s to the defendant (Ground 1.2)
The plaintiff seeks to rely upon delay by BW in complaining of the plaintiff’s alleged conduct, and upon delay by the notifying medical practitioners in notifying AHPRA. I accept that in determining whether prejudice has occurred, account may be taken of “the period elapsed since the alleged misconduct occurred, including the part of the period prior to the Board becoming aware of the alleged misconduct”.[33] However, that delay must be causative of the actual prejudice suffered by the plaintiff for the permanent stay. Here, the plaintiff rightly acknowledges that “nonetheless, the real source of prejudice was the … decision of the Defendant to withhold notice of the Notifications… in the course of which the Complainant’s medical records were “culled””.
[33] Medical Board v Woollard (2017) 51 WAR 32.
The plaintiff has not pointed to any actual prejudice suffered as a result of the delay referred to in grounds 1.1 and 1.2.
The defendant’s refusal to disclose the reasons for delaying notification of the plaintiff of both the mandatory notifications and the investigations (Ground 1.6)
Subsequent to the plaintiff being advised on 14 September 2015 of the complaints against him, the plaintiff sought the provision of reasons for the delay between AHPRA’s receipt of the notifications on 18 February 2014 and 16 March 2014 and the subsequent notification to the plaintiff.[34] The defendant has declined to provide reasons beyond those “clearly set out in the notification material which has been provided”.
[34] See NJI 1, exhibited to the affidavit of Nicholas James Iles dated 28 April 2017 (FDN 3).
The plaintiff’s requests for reasons clearly postdate the asserted date of destruction of BW’s medical records. I do not consider that refusal to provide further reasons (whether the refusal be justified or unjustified) can contribute to material militating in favour of the granting of the requested stay.
Asserted failure by the defendant to investigate the allegations as quickly as practicable, contrary to s 162(1) of the National Law (Ground 1.5)
Ground 1.5 of the grounds asserts that the Tribunal proceedings should be permanently stayed on the basis of:
1.5.the Defendant’s failure to conduct an investigation of the Mandatory Notifications as quickly as practicable, contrary to section 162 of the National Law;
Section 162 provides that:
162—Investigation to be conducted in timely way
The National Board must ensure an investigator it directs to conduct an investigation conducts the investigation as quickly as practicable, having regard to the nature of the matter to be investigated.
The investigation process
Material before this Court demonstrates that between 11 March 2014 (when AHPRA resolved to investigate the first Notification), and 28 October 2016 (when the defendant laid the complaint), the following events occurred:
-On 15 April 2014, MK was interviewed regarding her mandatory notification;
-On 16 April 2014, the defendant conducted an interview with Dr F regarding her mandatory notification;
-On 22 April 2014, the Notifications Committee met and resolved to investigate the second notification, which was received on 19 April 2014. By this time a “preliminary assessment report” had apparently been prepared;
-On 23 April 2014 (one day after the resolution to investigate the second notification), BW was interviewed for the first time;
-On 19 May 2014, BW was interviewed for the second time;
-On 15 July 2014, the defendant emailed a draft witness statement to BW for her input;
-On 24 August 2014, BW provided the defendant with her amendments to her statement;
-On 24 October 2014, AHPRA received advice from Ms Chapman SC suggesting that a number of investigative tasks be taken;[35]
[35] On the documents provided to the Court it is not clear when AHPRA requested that Ms Chapman SC prepare this advice.
-On 7 January 2015, the Notifications Committee again held a meeting and discussed the progress of the investigation. By this time, a statement of BW had been drafted, various matters within the statement corroborated, including the dates of the plaintiff’s court appearance in the disciplinary matters, and the investigative tasks proposed by Ms Chapman SC in progress;
-Throughout 2015, enquiries were made with various authorities with a view to corroborating BW’s statement. This includes with SA water, and with the District and Family Court in relation to previous proceedings involving the plaintiff;[36]
[36] Affidavit of Hayley Jane Kennett sworn 9 June 2017.
-On 13 March 2015, AHPRA searched the Automated Land Information System and ASIC’s ‘Personal Name Search’ for the plaintiff;
-On 15 May 2015, Mr Relf wrote to the Department of Planning, Transport and Infrastructure requesting information pertaining to any motor vehicle or address associated with the plaintiff;
-In July 2015, Mr Keane replaced Mr Relf as the investigator on the matter;
-On 20 July 2015, Mr Keane emailed BW with some further questions. There is also evidence to suggest he spoke with BW on the phone multiple times in July and August 2015;
-On 30 July 2015, AHPRA obtained a Certificate of Title said to relate to a property owned by the plaintiff;
-On 2 September 2015, the Notifications Committee resolved to notify the plaintiff about both the notifications and the investigation;
-On 14 September 2015, the plaintiff was given notice of the investigation;
-Between 17 September 2015 and 6 October 2015 there were multiple emails between Mr Keane and BW asking and answering questions;
-Between 28 October and 6 November 2015 there was further email correspondence in which Mr Keane asked further questions which BW answered;
-On 13 November 2015, a statement was obtained from Mr GS, a university counsellor of BW;
-On 3 March 2016, Mr Keane provided BW with a copy of her statement for her to review and sign;
-On 14 March 2016, BW attended at AHPRA’s offices in Sydney and participated in a photographic identification procedure in relation to the plaintiff’s property at Aldinga;
-On 1 April 2016, the plaintiff was formally interviewed; and
-On 9 June 2016, BW’s statement was signed.

As noted above, the plaintiff asserts that he completed the destruction of the earmarked patient files, including those of BW, in August 2015.
Consideration
It is clear that mere delay or “presumptive prejudice” will not justify a stay. While the investigation here did not proceed as quickly as might have been desirable, any delay could not be considered extreme or exceptional and could not justify a stay.
Delay in the defendant giving the plaintiff notice of both the mandatory notifications and the investigations, contrary to ss 152 and 161 of the National Law (Grounds 1.3 and 1.4); and the consequential unavailability of BW’s patient records through the plaintiff having destroyed them at a time when the defendant was investigating the notifications and had failed to disclose them to the plaintiff (Ground 1.7)
By far the greatest emphasis was placed by the plaintiff on the group of grounds 1.3, 1.4 and 1.7. He asserts that, due to the defendant’s delay in notifying him of the mandatory notifications and their investigations (contrary to sections 152 and 161 of the National Law), he proceeded with culling his patient records, including those relating to BW, and thereby inadvertently destroyed potentially exculpatory evidence; and that, if he had known that a notification had been made, he would have preserved all records relating to BW.
Did the defendant comply with statutory obligations to notify the plaintiff?
Grounds 1.3 and 1.4 assert that the Tribunal proceedings should be permanently stayed on the basis that:
1.3.the Defendant’s delay in notifying the Plaintiff, until 14 September 2015, of the fact that mandatory notifications had been made to AHPRA on 18 February 2014 and 16 April 2014… contrary to section 152(1) of the National Law;
1.4.the Defendant’s delay in notifying the Plaintiff, until 14 September 2015, that it was investigating the Mandatory Notifications, contrary to section 161(1) of the National Law;
The relevant provisions of the National law
Section 152 of the National law provides as follows:
152—National Board to give notice of receipt of notification
(1)A National Board must, as soon as practicable after receiving a notification about a registered health practitioner or student, give written notice of the notification to the practitioner or student.
(2)The notice must advise the registered health practitioner or student of the nature of the notification.
(3)Despite subsection (1), the National Board is not required to give the registered health practitioner or student notice of the notification if the Board reasonably believes doing so would—
(a) prejudice an investigation of the notification; or
(b) place at risk a person’s health or safety or place a person at risk of intimidation or harassment.
Section 161 of the National Law provides as follows:
161—Registered health practitioner or student to be given notice of investigation
(1)A National Board that decides to investigate a registered health practitioner or student must, within as soon as practicable after making the decision, give the practitioner or student written notice about the investigation.
…
(4)However, the National Board need not give the registered health practitioner or student a notice under subsection (1) or (3) if the Board reasonably believes giving the notice may—
(a)     seriously prejudice the investigation; or
(b)     place at risk a person’s health or safety; or
(c)     place a person at risk of harassment or intimidation.
As summarised above, AHPRA first resolved to not inform the plaintiff of the notification or investigation on 11 March 2014. The minutes of the email “meeting” between the relevant committee members record that they formed “the reasonable belief” that giving the plaintiff notice might “prejudice the investigation” or “place a person’s health or safety at risk”, within the meaning of ss 151(3) and 161(4) of the Act. The basis for such a belief is recorded as being:
1.The allegation is extremely serious and, if substantiated, likely to amount to professional misconduct. Given the practitioner’s extensive notification history which includes notifications in respect of alarmingly similar allegations, it is recommended that the Board direct the writer to investigate the practitioner.
2.Given the practitioner’s legacy history, and historical concerns regarding his potential interference with evidence in respect of previous notifications and Tribunal proceedings, it is considered that giving the practitioner notice of:
a) This notification might prejudice an investigation of the notification or place a person’s health or safety at risk
b) The proposed investigation might seriously prejudice the investigation or place a person’s health or safety at risk.
The committee resolved to not notify the plaintiff until certain further investigative processes had been completed, including obtaining statements from BW, and the two notifying practitioners.
AHPRA affirmed this resolution to not notify in subsequent committee meetings. The first was on 22 April 2014 when the Committee first considered the second mandatory notification. In a “preliminary assessment report”, which was apparently before them, the nature of the “legacy history” is further recorded thus:[37]
Analysis
●The practitioner has a very extensive notification history, traversing numerous issues including his prescribing habits and issues connected with medico-legal reports prepared for proceedings before the Family Court of Australia.
●In 2007 (MBSA 389/2007), Dr Thompkins provided an undertaking to the Board not to prescribe drugs of dependence, as part of the resolution of proceedings before the Medical Practitioner’s Professional Conduct Tribunal.
●Additionally, there have been notifications against the practitioner for:
-      Allegedly kissing a 16 year old female patient during session. The Board determined not to pursue the matter, as a result of the patient’s fragile mental state
-      Allegedly breaching confidentiality by releasing information about the treatment of the alleged victim of sexual abuse to her abuser (her father, for whom he was the treating psychiatrist). The former Board laid a complaint before the Medical Practitioner’s Professional Conduct Tribunal, but failed to make proof. The Board was ordered to pay costs, which were settled in the amount of $67,500.
-      Allegedly breaching professional boundaries by attempting to pursue a personal and/or sexual relationship with a patient. A formal complaint was laid before the Medical Practitioner’s Professional Conduct Tribunal, but was ultimately dismissed. The Board sought judicial review in the Supreme Court, which was unsuccessful. The Board was ordered to pay costs, which were settled in the amount of $250,000. It is understood that, in this case, there was a strong suspicion that Dr Thompkins altered his patient’s clinical records.
[37] See minutes of the meeting dated 22 April 2014, HJK 2, and letter from the AGS to Mr Iles dated 4 July 2017, RBT 10. This report was provided to the Defendant on 4 July 2017.
AHPRA again affirmed this resolution to not notify in their committee meeting on 7 January 2015. On 2 September 2015, roughly 18 months after first considering the allegations against the plaintiff, the committee resolved to give the plaintiff written notice of the notifications, noting that “many of the investigative tasks … have now been completed”.
The plaintiff submits that in resolving to not notify him of both the notifications and the subsequent investigation, the defendant failed to notify him “as soon as practicable” in accordance with its statutory obligations in ss 152 and 161. He asserts that: “… the Defendant’s failure to comply with one of its critical statutory responsibilities (resulting in the inadvertent destruction of records that would otherwise have assisted the Plaintiff in defending himself) is an example of what Wilson J described in Barton v The Queen (1980) 147 CLR 75 at 111 as “a fundamental defect which goes to the root of the trial.” Such impropriety on the part of the Defendant is “so serious a departure from the … disciplinary procedure” that the Court should set aside the Complaint.”
On the other hand, the defendant submits that:
-The requirements of the national law were complied with in that it was specifically certified that the defendant reasonably believed that giving notice to the plaintiff would prejudice the investigation and that the defendant was therefore entitled to withhold the information from the plaintiff pursuant to ss 152(3) and 161(4) of the National Law;
-Such certification should be accepted in the absence of proof to the contrary; it is “axiomatic that administrative decisions are presumed to be valid unless and until the contrary is proved”; and
-In light of the evidence summarised above at [9]-[11] as to the basis upon which AHPRA elected not to give notice to the plaintiff, in combination with the presumption of regularity (omnia praesumuntur rite esse acta), it was for the plaintiff to call evidence and rebut this presumption, which it failed to do.
Consideration
The ambit of the presumption omnia praesumuntur rite esse acta is stated by McHugh J (with whom Kirby P agreed) in the well-known passage in Minister for Natural Resources v New South Wales Aboriginal Land Council and Anor:[38]
In my opinion, this was a classic case for the application of the maxim whose rationale was explained by Lord Simonds in Morris v Kanssen [1946] AC 459, a company case, where his Lordship said (at 475):
“… One of the fundamental maxims of the law is the maxim ‘omnia praesumuntur rite esse acta’. It has many applications … The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order.”
The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office: M’Gahey v Alston (1836) 2 M & W 206 at 211; 150 ER 731 at 733; R v Brewer (1942) 66 CLR 535 at 548; Hardess v Beaumont [1953] VLR 315 at 318-319. And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583.
[38] (1987) 9 NSWLR 154, 163-165. The respondent also refers to: Ousley v The Queen (1997) 192 CLR 69, 130-131 (Gummow J); Malubel Ply Ltd v Elder (1998) 88 FCR 242, 249 (R D Nicholson J); Minister for Immigration v Bhardwaj (2002) 209 CLR 597, 646 (Hayne J); and quoted Gaudron J in Industrial Equity Ltd v Deputy Commission of Taxation (1990) 170 CLR 649, 671-672.
The defendant having tendered the minutes of the committee meetings which appear, on their face, to establish compliance with the legislative scheme, the plaintiff bears the onus of establishing that those minutes were made in bad faith or for some other reason cannot be relied upon.
The plaintiff purports to rely upon an affidavit sworn by him on 14 July 2017 and on an affidavit sworn by his solicitor Mr Iles. I do not consider that this material puts in doubt the validity or accuracy of the certifications in the minutes referred to above.
Further, it is to be noted that Ms Kennett, who gave evidence before this Court, attended (although not in the capacity of Chairperson) one of the three meetings at which it was resolved to not give notice of the notifications or investigations to the plaintiff, namely that of 22 April 2014. The plaintiff’s counsel did not attempt to cross-examine her concerning what belief was held by the committee at the meeting or whether such a belief was reasonable. What is perhaps more important, the plaintiff took no steps to subpoena the chair of any of the three meetings; or anyone else who was present at any of the meetings; or any documents that were before any of the meetings.
I find that the plaintiff has not established that the defendant contravened the National Law in resolving to not notify him of the notifications against him and of the subsequent investigation.
Other contraventions of the National Law
For completeness, I mention that the plaintiff apparently also relies on the requirement set in s 161(3) of the National Law that the defendant must, “at not less than 3 monthly intervals, give notice of the progress of the investigation to” the practitioner the subject of the investigation. However, no specific submissions were made concerning non-compliance with this provision save for the assertion that “this obligation was never discharged”. No actual prejudice was suggested, let alone established. It has not been established that any noncompliance with this provision has caused such prejudice as to justify the exceptional remedy of a permanent stay.
The significance or consequences of contraventions of the National Law
Since I find that the plaintiff fails to establish the asserted contraventions of the National Law, I will dispose of the ultimate contention of the plaintiff concerning the significance or consequences of such contraventions quite briefly.
The plaintiff’s ultimate contention was that the required prejudice to justify the grant of a stay could be demonstrated by the proof of breach of a statutory provision protective of the rights of an accused person. In support of this contention, the plaintiff heavily relied on the 1986 decision of the English Court of Appeal in R v Chief Constable of the Merseyside Police; ex parte Calveley and ors (Merseyside Police)[39] taken together with the later reference to Merseyside Police by McHugh JA in Herron v McGregor.[40]
[39] [1986] 1 All ER 257.
[40] (1986) 6 NSWLR 246.
In Merseyside Police, regulation 7 of the English Police (Discipline) Regulations 1977 was under consideration. It provided as follows:
The investigating officer shall, as soon as is practicable (without prejudicing his or any other investigation of the matter), in writing inform the member subject of investigation of the report, allegation or complaint and give him a written notice—(a) informing him that he is not obliged to say anything concerning the matter, but that he may, if he so desires, make a written or oral statement concerning the matter to the investigating officer or to the chief officer concerned, and (b) warning him that if he makes such a statement it may be used in any subsequent disciplinary proceedings.
Counsel for the appellants in Merseyside Police submitted that the delay in the notification of the investigation was such that by the time the appellants were served with the regulation 7 notices, routine destruction of incident reports and other relevant materials had occurred; certain witnesses were no longer traceable; and the appellants were “irremediably prejudiced”. Donaldson MR (with whom Glidewell LJ agreed) accepted this submission and stated:[41]
For my part I regard reg 7 as providing an essential protection for police officers facing disciplinary charges and think that, save in the rare case where an investigation of the complaint or a related investigation would be prejudiced by the giving of the notice or where the nature of the complaint is unclear or it is clearly frivolous, it will be difficult to justify any appreciable delay in giving the officer concerned notice of the complaints. ‘As soon as is practicable’ should be read with all the emphasis on the word ‘soon’. …
On the facts of this case, I can see no obvious justification for failing to give reg 7 notices in or about July 1981 and I regard it as self-evident that the officers have been prejudiced by the delay. …
[41] [1986] 1 All ER 257, 261.
Merseyside Police was later referred to by McHugh JA in Herron v McGregor thus:[42]
In R v Chief Constable of Merseyside Police; Ex parte Calveley [1986] 2 WLR 144; [1986] 1 All ER 257, the English Court of Appeal, by way of judicial review, set aside a determination of Chief Constable that three police officers be dismissed from the force on the ground of their misconduct. … Donaldson MR and Glidewell LJ held that there had been a breach of a regulation which required that the investigating officer “as soon as practicable” should inform the officer of the investigation and give him notice that he might make a written or oral statement. Their Lordships then considered the question of prejudice and thought (at 151; 263) that there had been “so serious a departure from the police disciplinary procedure” that the court should set aside the determination. May LJ expressly said (at 156; 267) that an abuse of process could be shown in the instant case. Apart from the failure to give notice, over three years had passed between the alleged offences and the hearing and evidence had been destroyed. Although the reasoning of the judges differed, it is clear that the Court of Appeal interfered because the institution of the proceedings in the circumstances was oppressive and an abuse of process.
[42] (1986) 6 NSWLR 246, 251.
The plaintiff here sought to rely upon McHugh JA’s above reference to Merseyside Police as authority for the proposition that “presumptive prejudice” is a sufficient basis for a stay in the present circumstances.
However, as referred to above, the decision of the High Court in Jago makes plain that actual rather than presumptive prejudice must be established to justify a stay of proceedings in circumstances such as the present. Indeed, the plurality in Walton v Gardiner[43] specifically stated that these comments by McHugh JA relied upon by the plaintiff “require revision or modification in the light of the subsequent decision of this Court in Jago”. Further, the Australian authorities subsequent to Jago confirm that presumptive prejudice cannot justify a stay of proceedings
[43] (1993) 177 CLR 378, 385 (Mason CJ, Deane & Dawson JJ).
Ground 1.7: the loss of evidentiary material
It remains to consider the matter of the asserted loss of evidentiary material. The circumstances which led to the plaintiff destroying BW’s file are set out in his outline of argument as follows:
15.1 At some point in 2010, the Plaintiff became aware of the possibility of the State Government compulsorily acquiring sections of South Road for a road widening project known as the “Darlington Upgrade Project”. Franklin House, where the Plaintiff had been practising since 1998, fell within the relevant area to be acquired.
15.2 At some point in 2014, the Plaintiff lodged a caveat over the title at Franklin House in order to provide himself with some protection in the event of a compulsory acquisition.
15.3 On or shortly after 27 April 2015, the Plaintiff received letters from the Department of Planning, Transport and Infrastructure giving formal notice that the Commissioner of Highways was proposing to acquire the whole of the property where Franklin House was situated for the purpose of road construction.
15.4 At that point, the Plaintiff had been practising at Franklin House for nearly two decades and had accumulated a large number of hard-copy patient files, a significant amount of which were being stored in the cellar of his house. The Plaintiff made the decision to destroy old patient files in order to free up storage space both in his house and in any rooms to which he was destined to move, anticipating that his new rooms would have less storage space than those he was currently occupying.
15.5 The Plaintiff commenced the “culling” process in or around May 2015, which continued through until around the end of August 2015.
15.6 The Plaintiff subsequently moved out of Franklin House in December 2015 and commenced practising at the Southern Specialist Centre at 233 Main South Rd, Morphett Vale in January 2016.12 [Footnotes Omitted]

In the plaintiff’s affidavit sworn 28 April 2017, the plaintiff deposes:[44]
[44] Affidavit of Richard Birrell Thompkins sworn 28 April 2017.
37.By late April 2015, when it was clear that I would have to move out of Franklin House, all three filing cabinets at Belair were full, as was Cabinet “3”at Franklin House. I decided to make additional space in the filing cabinets at Belair, in order to move the “non-current” patient files from Franklin House to Belair.
38.I cannot recall precisely when I started the process of “culling” old patient files, but to the best of my recollection this started in May 2015 and continued through until around the end of August 2015. I recall that it happened during the winter months because rather than shredding old patient files that had been earmarked for destruction, I burnt the old patient files in my open fireplace at Belair. I recall that the process was concluded before the end of August, just prior to my birthday.
39.During this period, I devoted some of my working hours at Franklin House to identifying old patient files in cabinet “3”, the “non-current” filing cabinet, for destruction. I worked methodically, starting with files belonging to patients whose surname commenced with “A” in cabinet “3”. Once I had identified files at Franklin House to be destroyed, I would take them home with me, to be burnt in my open fireplace on weekends.
40.I would undertake the same process at home on weekends in respect of the three filing cabinets in my cellar. However, I started that process with files belonging to patients whose surname commenced with “Z”. The idea was to eventually “meet in the middle”.
41.I do not recall sighting [BW’s] patient files during the file destruction process. However, given that the date of her last appointment was in May 2004, more than a decade earlier, I am confident, given that her surname started with “W”, that her patient records were kept in one of the filing cabinets in the cellar and that they would have been destroyed at the same time as I destroyed other files that were of a similar age or older. I am also confident that given [BW’s] surname started with “W”, her file would have been destroyed towards the beginning of my culling process.
42.I recall that by the time I moved my practice in late December 2015, the filing cabinet “3” at Franklin House was empty. It was moved to my cellar at Belair at about that time.
43.My process of “culling” patient files was as follows.
44.I would remove from the relevant filing cabinet all patient files for patients whose surname started with the same latter, i.e. “Z”. I would then proceed to review each patient file under the letter I had removed, i.e. “Z”, separately. I would look at the date when I last consulted with the patient. If the last consultation date was less than 8 years ago, I would close the file and retain it in its entirety and move on to the next file. I would also keep the file if it was what I would describe as “a problem patient” or if the file belonged to a patient who was a child at the time when I consulted with them.
45.In relation to determining what would constitute “a problem patient”, it would always depend on the circumstances peculiar to each individual patient. However, I would certainly retain the file if the patient had died, if the therapeutic relationship had ended badly, if I had given psychiatric evidence in Court or if the patient had made allegations about another psychiatrist.
46.If the date of the last consultation with a patient was 8 years ago or longer, I would remove from the file all copies of letters I had written (i.e. letters to referring general practitioners or letters drafted for use in court proceedings, similar to the letters referred to in paragraph 14 above). I would retain these letters. Generally speaking, my letters were printed onto yellow paper, in order that they would be prominent on the patient file. I would then store my letters, which I had removed from the patient file, in big plastic “tubs” which I still have. These “tubs” were stored in my cellar at Belair. The remainder of the patient file would be burned in my open fireplace.
47.On occasion, I would retain a few additional documents from a patient’s file, i.e. Inquest findings. I am reasonably confident that I did not retain consultation notes of my attendances on patients, copies of GP referrals or pathology reports. I am also reasonably confident that I would not have retained hard-copy billing records because they were saved electronically, and separately, on Ms Knappstein’s computer.
48.As I destroyed each patient file, I retained the metal paper spikes from each patient file. I still have these. I have given them to my lawyer.
49.My partner Lyn and her two children, then a 4 year old and a 15 year old, observed the old patient filed being burned in the fireplace at Belair.
50.With one exception, all patient files that were stored in the filing cabinets in my cellar at Belair related to patients whom I had consulted at Franklin House. The one exception was a bundle of patient files stored in a box sitting on top of the filing cabinets in my cellar. These patient files related to patients with whom I had consulted at my medical practice situated at Redwood Park, which is where I first practised privately as a psychiatrist in 1998 before relocating to Franklin House.
…
52.I did not keep a record of the patient files that I destroyed during this period, other than having kept the yellow copy documents which I retained in the plastic “tubs”.
…
The plaintiff further deposes that, notwithstanding the select documents relating to BW which he had retained, he is disadvantaged by not having the remainder of the file as:
57.Without the benefit of [BW’s] patient file, I am unable to review my notes of attendances on [BW] and refresh my memory as to what matters were discussed during some sixty-three consultations. As I have deposed, I have no clear recollection of [BW]. I cannot picture her. I do not recall her course of treatment. I recall very little of her psychiatric and mental state over the course of these consultations. I am only partially assisted by my perusal of the early correspondence referred to in paragraph 14 above, most of which dates from early on in the therapeutic relationship.
58.I deny engaging in any sexual relationship with [BW] or ever having “groomed” [BW] for a sexual relationship. I do not know and cannot respond to why [BW] has a mistrust of intimacy with men. If [BW] had discussed matters to do with relationships and sexual intimacy, I wold have likely recorded such comments in my notes.
59.Similarly, if the medication that I had prescribed [BW] had resulted in her suffering from side effects, as she alleges in paragraphs 40 to 42 of her statement to AHPRA dated 9 June 2016, I would expect that such matters would have been recorded in my notes.
60.I would also expect my notes to have described any changes in behaviour, in particular any unforeseen changes to [BW’s] mental state.
61.In the particulars of the Complaint, it is alleged that I made a significant number of self-disclosures to [BW] during the course of our therapeutic relationship. Whilst I may not have necessarily recorded everything that was discussed during our consultations, I would expect that I would have made a note of significant things that were said and discussed, including things said by me. Without my notes, I am simply unable to recall what I might have said to [BW] or, indeed, what she might have said to me.
62.Whereas [BW] appears to have made contemporaneous notes and diary entries which, in some cases describe, in significant detail, matters that were allegedly discussed during our consultations, I have nothing to assist me in terms of contemporaneous notes of those discussions. Without such notes, I have been deprived of any opportunity of compare [BW’s] contemporaneous account of events with my own.
The significance of the evidentiary material in the present case
It is asserted by the plaintiff that BW’s file was destroyed no earlier than May 2015, at which time AHPRA had previously received both the first and second notifications more than one year prior (on 18 February 2014 and 16 April 2014 respectively). The plaintiff asserts that he would suffer significant and actual prejudice if the proceedings were permitted to continue notwithstanding the loss of his records:
Contemporaneous notes of patient consultations would be of critical importance in defending the Complaint, had the Plaintiff retained such files.[45] In particular, at paragraph 57 of that Affidavit, the Plaintiff has deposed that he cannot recall the Complainant or her course of treatment, including the medications which he prescribed to her. As outlined in paragraph 11 of the Plaintiff’s Affidavit of 28 April 2017, between the Complainant’s first and last consultation with the Complainant between 2002 and 2004, he had conducted some 3,742 patient consultations. Sixty-three of those consultations were with the Complainant. Some 13 years have passed since that time.
The patient records or notes would assist the Plaintiff to refresh his memory concerning the Complainant and the period of time when she consulted him. The Plaintiff has no means, and is deprived of the opportunity, of comparing or responding to the Complainant’s (allegedly) contemporaneous accounts of events with his own.[46] For example, he is unable to identify why the Complainant felt a mistrust of intimacy with men, whether matters concerning relationships and sexual intimacy were ever discussed with the Complainant and to what effect, whether there is any evidence of her forming an attachment to him, what changes in the Complainant’s mental state might have occurred over the period of the consultations and/or what self-disclosures were made by the Plaintiff and when.
[45] See XG v Medical Board of Australia [2011] VSC 638 at [113]. See also Re Davis (1995) 81 A Crim R 156.
[46] See XG v Medical Board of Australia [2011] VSC 638 at [113]. See also Re Davis (1995) 81 A Crim R 156. See also R v Reeves (1994) 122 ACTR 1 at 23 where it was held that the destruction of documents had created a situation where Mr Reeves was "deprived of properly advancing a contesting hypothesis consistent with innocence." Whilst in that case the records were destroyed by the Company for whom Mr Reeves had worked, and after the institution of proceedings against him, the same “deprivation of properly advancing a hypothesis consistent with innocence” exists in the current proceedings. Had the Plaintiff been made aware of the Notifications and the Investigation, the relevant records would have been preserved. In Reeves, the Applicant was successful in obtaining a stay notwithstanding that he was able to inspect some contemporaneous documents which assisted his recall (possibly as many as half the volume of documents that previously existed). In the present case, all of the patient notes spanning some 63 consultations have been destroyed (see p 14).
By contrast, the defendant asserts that the lost records in this case are of quite limited relevance; the most serious aspect of the allegations is the commencement of a sexual relationship between the plaintiff and BW, which is alleged to have occurred after the professional relationship between them had ceased. Accordingly, the defendant submits that proving that aspect of the plaintiff’s professional misconduct does not require establishing that anything was said or done in the course of BW’s consultations with the plaintiff; indeed, the likelihood of the plaintiff’s clinical notes “containing an exculpatory entry with respect to this aspect of the Complaint can be properly regarded as wholly remote”.
Consideration
There are a number of cases relied upon by the defendant to demonstrate that the facts and circumstances here do not warrant a stay. Some have been referred to above. Another such case is Dr SS v Health Care Complaints Commission and Anor. There, the complainant made a complaint to the Health Care Complaints Commission in 2001 in relation to conduct of the physician said to have occurred between 1989 and 1982, and between 1990 and 1992. The alleged conduct included sexual intercourse and other sexual contact with the complainant who had sought treatment for diabetes and bulimia. The doctor sought a permanent stay on the basis that he could not have a fair trial due to the delay in making the complaint. Stein JA (with whom Sheller and Heydon JJA agreed) stated:[47]
[47] [2002] NSWCA 391.
[20]The claimant submits that he cannot have a fair hearing of the complaint made by B against him because he has no records. He says that all of his records regarding patient B have been destroyed. He has little or no recollection of her. Further, he says that he is prejudiced by the fact that there are no records now held by many of the medical practitioners that the complainant has consulted. Accordingly, the claimant says that the extended delay in bringing the complaint has deprived him of the chance of a fair hearing of the complaint by patient B.
[21]In paragraph 52 of the written submissions of the claimant 11 reasons are given which, so it is submitted, demonstrate that the claimant cannot receive a fair hearing before the Tribunal…
1.     The claimant has no specific memory of patient B…
2.     The claimant has no memory of the type of treatment provided to patient B…
3.     The claimant has no records which relate to the complainant…
4.     The claimant has only a vague recollection of treating members of the complainant’s family and is unable to distinguish between various sisters in the family.
5.     The claimant has no diaries of the relevant period.
6.     The claimant has no financial records for the relevant period….
7-8.    The claimant does not have any correspondence from the complainant.
9-10. The claimant has been unable to find any staff member who has any memory of the complainant. In particular, his receptionist of 25 years, Ms Fleming, has no recollection of the complainant as a patient.
11.     The HIC records only go back to 1984 and there is no previous record of patient B’s attendances on any medical practitioner or on the claimant prior thereto.
[22]In summary, the claimant submits that he will suffer significant actual prejudice such that he cannot have a fair trial of the complaint made by patient B. The claimant’s prejudice, occasioned by his routine destruction of records relating to the complainant, has irretrievably damaged his ability to defend himself in a way similar to the practitioner in Re Davis (1995) 81 A Crim R 156.
Stein JA later concluded:[48]
[29]Here the claimant is a consultant physician and the evidence is that he treated patient B for diabetes and bulimia. No allegation is made by the patient of any improper physical examination by the claimant. Indeed, it is difficult to see that if the claimant had his medical records, they would have other than limited relevance. The notes, of course, would be likely to assist his memory of the complainant.
[30]It is also material that the allegations made by patient B are such that it is unlikely that the doctor’s staff would be able to give much relevant evidence, although this is not completely clear. Essentially the complaint boils down to oath against oath. The most serious allegation of sexual intercourse in December 1982 is claimed to have occurred in the claimant’s car in the vicinity of a park. Patient B says that the claimant telephoned her at home one evening and arranged to pick her up outside her home. Other incidents (particulars 4 and 6) involved kissing and hugging in the privacy of the claimant’s rooms.
[31]In my opinion, the absence of the medical records of the claimant is not such as to make a fair trial impossible. There are some medical records available from other medical practitioners, importantly Dr Sheridan. The nature of the allegations made by patient B also diminishes the importance of the unavailability of the claimant’s records.
[32]The delay, including the destruction of the records, will clearly inflict a significant prejudice on the claimant. However, I am not convinced that in all of the circumstances it is impossible to have a fair trial. It will be necessary for the Tribunal to give itself similar but suitably adapted directions to those discussed in Longman v The Queen (1989) 168 CLR 79 and also Crampton v The Queen (2000) 206 CLR 161. This will help alleviate some of the prejudice to the claimant caused by the delay. It will acknowledge the difficulties faced by the claimant in meeting allegations brought many years after the events.
[48] [2002] NSWCA 391, [12].
On the other hand, the plaintiff seeks to rely on the 1994 decision of the Federal Court in Re Davis[49] as an example of a criminal prosecution of a Doctor (involving delay and loss of medical notes) where it was appropriate to conclude that a trial would be an abuse of process. The plaintiff faced charges that he had, more than 20 years prior, sexually abused a number of patients in the course of medical examinations. The Federal Court, in upholding the decision of the Supreme Court of the Australian Capital Territory staying the prosecution, stated:[50]
… Delay alone would not justify a stay: see Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23. Of course, there will rarely be delay without at least some consequential prejudice. It is not necessary for us to determine whether the delay in this case is so extreme as, by itself, to have created such a degree of prejudice as to justify a stay of proceedings. Here there is special prejudice, occasioned by the destruction of the medical records. It is understandable that, without the records, Dr Davis is unable to recall the relevant consultations. He must have conducted thousands of consultations during his 37 years in general practice. He probably made hundreds of vaginal examinations. Most of the complainants saw him only a few times, some only once or twice. Without his records, Dr Davis would have no way of putting himself back into the situation that applied at the dates of the relevant consultations. He would have no means of checking how many times he saw a complainant, the reason for the consultation or the treatment he provided. We agree with Mr Richardson’s comment that it is unlikely that the notes would reveal that Dr Davis masturbated the patient or fondled her breast, if that is what he did. But the comment misses the point and trivialises the difficulty. This is not like many sexual assault cases where the accused person has no business anywhere near the complainant’s genitalia. This is the case of a doctor who may have had a legitimate reason for making a vaginal examination. Without the medical notes, it would be impossible for Dr Davis to check whether he made an internal examination of any particular complainant or why he did so or to say how he carried it out. It would be impossible for him to give instructions to his counsel regarding aspects of the general treatment of the complainant, or the particular incident, that should be put to her in cross-examination and which might reveal the incident in a different light.
There is a further problem arising out of the loss of the records. We have already mentioned the failure of all but one of the complainants to report her experience to anyone in an official position until after the Canberra Times article. We can understand this. However frustrating it may be to law enforcement officers and courts, a low reporting rate is a characteristic of sexual offences. But it also seems to be a characteristic of sexual offences, equally understandable, that victims thereafter try to avoid the offender or, at least, placing themselves in a situation where the offence may be repeated. So the subsequent behaviour of an alleged victim may provide insight into what happened on the occasion in issue. In this context, it is most unfortunate that the medical records are lost. It is clear from their own statements that some of the complainants consulted Dr Davis again after the alleged incident. The fact that they did so does not necessarily undermine their versions of the incident. The power inequality has to be taken into account. However, information about subsequent visits (when, how often and for what reason) might throw some light on what happened on the critical day. Without his records, Dr Davis is unable to say anything about these matters or even to give instructions to his counsel regarding subsequent visits which, for all anyone can now say, might have been significant to his defence…
We are satisfied that this unusual case meets even the demanding tests we have quoted. Having regard to the nature of the allegations and the surrounding circumstances, there is nothing a trial judge could do that would overcome the unfairness caused to Dr Davis by the delay that has occurred, with the regrettable consequence of the loss of medical records. To apply a telling phrase used by Toohey J in Ridgeway (1995) 78 A Crim R 307 at 339, taken from a Canadian case, to force Dr Davis to stand trial on these charges under these circumstances “would offending the court’s sense of justice”…
It is important that guilty people are convicted. It is even more important that innocent people are not. There can be no guarantee about achievement of either objective. The courts can only strive to attain them. The best contribution that judges can make is to insist that trials be fair. Because a fair trial is not now possible in this case, it is necessary to uphold the stay order.
[49] (1995) 81 A Crim R 156.
[50] (1995) 81 A Crim R 156, 163-164.

While I do not question the result come to in Re Davis, I consider that it was based on a set of facts and circumstances very different to those in the present case. I accept the following written submission made by the defendant:
a.   At [71] a statement is quoted from Re Davis (1995) 81 A Crim R 156 (Re Davis (1995)) as though the Court expressed a general principle, concerning the status and likely probative value of clinical notes, which favours the Plaintiff’s case herein.
b.   That is simply not right. In Re Davis (1995) there was evidence of prejudice, accepted by the Court, which was far removed from the facts of this case.
c.   The complaint in Re Davis (1995) involved the conduct of inappropriate vaginal examinations by a medical practitioner. In the 20-34 year period since Dr Davis had last seen the complainants he had destroyed his patient cards which ‘would record the fact of whether or not I carried out an internal medical examination and would.also record the date on which I did so and the patient’s clinical signs and reason for the carrying out of an internal medical examination’.
d.   The Court in Re Davis (1995) made positive findings that (i) most of the complainants only saw Dr Davis a few times, some only once or twice (not the position here); (ii) without his patient notes Dr Davis had no way of checking how many times he saw a complainant, the reason for the consultation, or the treatment he provided (not the position here); (iii) some of the complainants consulted Dr Davis again after his alleged inappropriate examinations of them (not a feature here); and (iv) the Court specifically explained the statement quoted by the Plaintiff at [71] in the very next sentence of its judgment, in terms which have not the slightest application here.
e.   In any event, and most importantly, Re Davis (1995) concerned a successful stay of the prosecution of various criminal charges arising out of Dr Davis’ alleged conduct. However, it is noteworthy that a Full Court of the Federal Court had earlier dismissed Dr Davis’ appeal from the refusal of a permanent stay of disciplinary proceedings against Dr Davis arising out of exactly the same conduct: see Davis v Medical Board of the Australian Capital Territory [1994) FCA 1302 (Re Davis (1994)). The Full Court held that, unlike the position with respect to the criminal charges, it was ‘clearly open’ to.the primary judge to refuse a stay by reference to the strong public interest in disciplinary proceedings continuing before a specialist tribunal established by law to discharge the important protective function of adjudicating allegations of improper conduct by doctors.60 The Full Court in Re Davis (1995) cast no doubt on the correctness of the decision in Re Davis (1994) - indeed, the Full Court referred to the existence of important differences between the criminal and civil proceedings against Dr Davis by reference, inter alia, to the strength of the public interest in non-punitive disciplinary proceedings being determined on their merits: see at pages 162-163. It is the decision in Re Davis (1994) which is of most direct relevance to the Plaintiff’s circumstances, but the Plaintiff makes no reference to it, or to the endorsement of that decision in Re Davis (1995).    [Footnotes omitted]
I add that in the earlier proceedings before the Medical Board, Davis v Medical Board of the Australian Capital Territory,[51] the Judge at first instance held:[52]
There is clearly unfair prejudice to the applicant because of delay, that prejudice is not, in my view, so extreme as to render it impossible for the Board to arrive at a balanced and fair conclusion. …
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. In some cases, the public interest will be served by reassurance that the alleged misconduct did not occur or having been the subject of fair and thorough proceedings even if unproved. Some complainants, not necessarily those in the instant case, will find reassurance in a realisation that they may have been in error or, at least, in having had a fair hearing. That is also in the public interest.
There is a public interest in punishment of misconduct. That is not because disciplinary proceedings are primarily punitive. They are protective of the public. However, part of that protective process is the inevitability of penalties for proven misconduct. In some cases a lack of utility in the proceedings will justify a stay. In Walton v Gardiner, for example, one of the respondent doctors had retired from practice. He suffered chronic ill-health and was never going to resume practice.
This applicant has retired from general practice but, although now 68 years of age, does practise part-time in a limited area of medical practice. It is possible, though it would be for the Board to decide, that disciplinary action would serve no useful purpose. No compassionate grounds for a stay are relied on in these proceedings.
It seems to me, however, that weighing the public interest against the inexcusable delay and the nature and extent of the prejudice to the applicant in the continuation of the disciplinary proceedings before the Board, a stay should be refused.
[51] (1994) 52 FCR 279.
[52] Reproduced at (1994) 52 FCR 279, 291-292.
On appeal to the Federal Court, Neaves and Ryan JJ dismissed the appeal and stated:[53]
His Honour was clearly alive to the difficulties of the applicant which had been created by the long lapse of time and the culling of medical records which had occurred between the alleged acts of misconduct and the making of all but one of the complaints. However, he also recognised that he was required… to balance that consideration against factors which conflicted with it, including the public interest in the prosecution to a conclusion of disciplinary proceedings against a medical practitioner.
[53] (1994) 52 FCR 279. Gallop J dissented.
I would emphasise that the later grant of a stay in the criminal proceedings does not indicate that the later Court considered that the earlier Court’s decision to refuse to stay the disciplinary proceedings had been incorrect. Rather, the later Court had specific regard to a distinction between the principles governing stay applications in the context of disciplinary proceedings and those governing applications in the context of criminal proceedings. Thus their Honours stated:[54]
It is true that both proceedings arise out of the same set of allegations. If there will be difficulties in Dr Davis answering the criminal charges because of the lapse of time and the destruction of his medical records, there will also be difficulties for him in dealing with the Medical Board investigation. But that does not mean that the result, in terms of a stay, must be the same in each proceeding. There are important differences between the two proceedings. The Medical Board proceedings are not punitive in character. Although an order striking a practitioner’s name from the register ordinarily has serious consequences for the practitioner, such an order is made to protect the public, not to punish the practitioner. Consistently with this distinction, a different standard of proof applies. An allegation of professional misconduct need be proved only to the civil standard of proof, a balance of probabilities. Charges of indecent assault, like other criminal charges, must be proved beyond reasonable doubt. The difference in the standard of proof reflects a view that it may be acceptable, as an act of public protection, to exclude from practice a person against whom it is impossible to prove the facts beyond reasonable doubt.
[54] (1995) 81 A Crim R 156, 162-163 (per Wilcox, Burchett and Hill JJ).
The plaintiff also seeks to rely on XG v Medical Board of Australia, in which the Court granted a permanent stay of a complaint filed in 2007 concerning complaints of professional misconduct ranging from 1973 to 1979. In respect of some of the allegations (the early allegations), Kyrou J stated:[55]
It is true, as Mr Clements submitted, that the plaintiff is in a position to give evidence denying the sex for pethidine allegation, as the alleged conduct occurred only in the presence of the plaintiff and AA. It is also true that it is inherently unlikely that any record would have been made of the sexual activity. The absence of the medical records, however, denies the plaintiff the opportunity to present to the Panel contemporaneous evidence that supports his denial. For example, if the plaintiff’s records had indicated that he provided legitimate medical treatment to AA and at no stage prescribed or administered pethidine to her, then those records would have assisted the plaintiff to rebut the sex for pethidine allegation. Given that AA’s allegation involves sex being exchanged for pethidine, proof that the plaintiff never prescribed pethidine for AA would have significantly undermined this allegation.
I accept Mr Clements’ submission that the above analysis involves speculation about the contents of the plaintiff’s medical records. Speculation is unavoidable because the absence of the medical records makes it impossible to establish their contents. The speculation, however, is not devoid of any factual foundation. None of the surviving medical records contain any reference to the plaintiff prescribing pethidine for AA or administering the drug to her. Those records indicate that pethidine was administered to the plaintiff only while she was an inpatient at the Prince Henry’s Hospital. Further, none of the surviving medical records indicate that AA became addicted to pethidine; they show that AA initially became addicted to Fortral and Valium and subsequently to heroin.
The surviving contemporaneous medical records cast doubt on AA’s allegation that the plaintiff prescribed pethidine for her in return for sexual favours over an extended period and that, as a result, she became addicted to pethidine. In these circumstances, the unavailability of the plaintiff’s clinical notes and prescription records deprives him of a real and material opportunity to bolster his prospects of persuading the Panel to reject the sex for pethidine allegation.
The unavailability of the plaintiff’s medical records also deprives him of the opportunity to establish whether he performed a legitimate pelvic examination at the time that AA has alleged that he first masturbated her.
The reasons set out at [113] to [115] above as to why the unavailability of the plaintiff’s prescription records is prejudicial also apply to the unavailability of government records relating to medications that were prescribed by the plaintiff for AA in the period from 1973 until 1978. Although some Medicare records exist for the period from 1975 until 1976, they do not disclose what medications the plaintiff prescribed for AA. [Footnotes omitted]
[55] [2011] VSC 638, [113]-[117].
In respect of a later allegation alleging a one-off sexual encounter in 1979 (the latter allegation), Kyrou J considered:[56]
[56] [2011] VSC 638, [151]-[155].
The one-off sexual encounter allegation differs from the long-term sexual relationship allegation and the sex for pethidine allegation in the following respects:
(a)The one-off sexual encounter allegation did not involve sex for pethidine. This is made clear in the notes of AA’s interview with the MPBV on 23 April 2007.
(b)The alleged sexual encounter was not part of the alleged ‘habitual’ sexual relationship between the plaintiff and AA between 1973 and 1978. Rather, it was a one-off sexual encounter that allegedly took place a year after AA’s last consultation with the plaintiff in 1978, prior to her move to Perth.
(c)Although the alleged one-off sexual encounter took place in the plaintiff’s consulting room, AA has not asserted that she sought medical treatment or that the plaintiff treated her or prescribed any medication on this occasion. It appears from AA’s first affidavit that she visited the plaintiff in the hope that he would apologise to her for his alleged past conduct.
The one-off sexual encounter allegation has the characteristics of an ‘oath against oath’ allegation.[57] The very nature of this allegation means there are no witnesses to it and there is no documentary evidence of it.
The unavailability of some medical records is potentially prejudicial to the plaintiff in relation to the one-off sexual encounter allegation. This is particularly so in relation to any records that indicate the reason for AA’s hospitalisation at the Psychiatric Ward of the Sir Charles Gairdner Hospital around the time of the alleged one-off sexual encounter and the treatment that she received at that hospital.
There may also be some evidentiary difficulties in the Panel conducting a hearing in relation to the one-off sexual encounter allegation, yet being precluded from conducting a hearing in relation to the sex for pethidine allegation and the long-term sexual relationship allegation. This is because, according to AA, the plaintiff’s previous conduct towards her provided the motive for her visit to the plaintiff in 1979 and established the context for the sexual encounter that took place during that visit.
Overall, the factors discussed above that caused the balance to tip in favour of granting a stay in relation to the sex for pethidine allegation and the long-term sexual relationship allegation do not apply, or do not apply with the same force, to the one-off sexual encounter allegation. Further, any unfairness to the plaintiff arising from the evidentiary difficulties referred to at [154] above is capable of being ameliorated by appropriate directions by the Panel, including directions about the extent to which evidence-in-chief and cross-examination can touch upon the events preceding the alleged one-off sexual encounter in 1979. [Cross-references omitted]
[57] Cf Dr SS [2002] NSWCA 391 (9 December 2002) [30].
In my view, the present case aligns much more closely to the later allegation which arose for consideration before Kyrou J as distinct from the earlier allegations which involved the prescription of medications (a highly regulated field) and allegations of sexual contact during a consultation, such that there was a high likelihood that the loss of records would prevent the plaintiff from leading evidence in his defence.
I consider that the evidence before this Court concerning loss of evidentiary material (together with the plaintiff’s submissions in that regard) do not establish that exceptional degree of prejudice needed to justify the granting of a stay of the proceedings.
Conclusion
I have considered each asserted ground both alone and in combination with each of the others. For all of the above reasons, I conclude that a stay is not warranted and I dismiss the plaintiff’s action.