Coleman v Health Care Complaints Commission of NSW

Court of Appeal (NSW)|2020-11-17|Before: Macfarlan JA, Meagher JA, MacFarlan JA

Solicitors: Laxon Lex Lawyers (Applicant) Health Care Complaints Commission of NSW (Respondent) File Number(s): 2020/208304 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Occupational Division Citation: [2020] NSWCATOD 47 Date of Decision: 6 May 2020 Before: Cole DCJ, Deputy President File Number(s): 2016/378664

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

MACFARLAN JA: On 6 May 2020 the Occupational Division of the New South Wales Civil and Administrative Tribunal ("the Tribunal") refused an application by Dr Jeremy Coleman for a stay of disciplinary proceedings brought against him by the Health Care Complaints Commission ("HCCC") ([2020] NSWCATOD 47, Cole DCJ, Deputy President). The stay was sought until pending criminal proceedings against Dr Coleman are resolved. Dr Coleman seeks leave to appeal to this Court against the refusal of the stay. His application for leave was heard concurrently with the appeal that will lie if leave is granted.
For the reasons that appear below, I consider that leave to appeal should be granted, the appeal should be allowed and a stay ordered.

The factual and procedural background

Dr Coleman is a physician and immunologist who practised in New South Wales until 2016. His registration as a health practitioner was formally suspended pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law") on 2 August 2016. It remains suspended.
On 18 April 2016 the HCCC commenced the disciplinary proceedings referred to above. Its Application alleged that Dr Coleman was guilty of unsatisfactory professional conduct or alternatively professional misconduct in relation to six of his patients, identified as Patients A, B, C, D, E and F. Typical of the complaints were those to the following effect in relation to Patient B, who assumed particular significance in relation to the stay application in the Tribunal: 1. Dr Coleman: (a) failed to take an adequate allergy history and (b) asked inappropriate and clinically irrelevant questions concerning the patient's sexual history and relationships. 2. He performed a breast examination inappropriately and without clinical indication. 3. When performing the breast examination, he failed to provide appropriate privacy. 4. He performed an internal vaginal examination in circumstances where there was no clinical indication. 5. He performed the internal vaginal examination without providing the patient with an adequate explanation as to why the examination needed to be conducted and failed to seek the patient's consent to the examination. 6. The conduct referred to in (1)(b), (2), (3) and (4) constituted inappropriate conduct of a sexual nature. 7. He requested the patient to undergo a skin prick allergy test inappropriately and without clinical indication. 8. He prescribed three identified medications inappropriately and without clinical indication.
Ten days prior to this, on 8 April 2016, a Court Attendance Notice was served on Dr Coleman alleging some of the same conduct in relation to Patients A, B, D, E and F as alleged in HCCC's Application.
On 24 November 2016 the Office of the Director of Public Prosecutions ("ODPP") served on Dr Coleman a form of indictment containing 97 counts including charges in relation to Patients A, B, D and E ("the November 2016 Indictment"). Patients C and F were not referred to in this indictment.
On 28 August 2017 Dr Coleman was arraigned in the District Court on a revised indictment containing 66 counts alleging offences of sexual and indecent assault in respect of 46 patients, including Patients A, D and E referred to above ("the First Trial Indictment"). Patient C, who was a carer of Patient D, was called as a witness in relation to the counts concerning Patient D but there were no charges relating to Dr Coleman's treatment of Patient C. Patients A, D and E gave evidence at the trial, as did Dr Coleman. The counts relating to Patient B which had been in the November 2016 Indictment were removed from the form of indictment shortly before arraignment occurred, for the purposes of transferring them to a different indictment.
After a trial lasting over 12 months, Dr Coleman was found not guilty of 50 of the 66 counts in the First Trial Indictment (two of these verdicts having been directed by the trial judge). These not guilty verdicts related, inter alia, to all of the counts concerning Patients A, D and E. The jury was unable to reach a verdict on the remaining 16 counts and was discharged. Dr Coleman was not therefore convicted on any count. The trial occupied 178 days of court time and attracted significant media coverage.
On 30 August 2019 the trial judge granted Dr Coleman a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) in respect of 15 of the counts contained in the First Trial Indictment. Subsequently Dr Coleman applied to the Director-General of the Attorney General's Department under s 4 of that Act for payment from the Consolidated Fund of costs he had incurred. The section confers a discretion on the Director-General as to whether a payment should be made. None has yet been made and no decision as to whether any will be made has been communicated to Dr Coleman.
On 19 February 2019 the ODPP served on Dr Coleman a third form of indictment containing 14 of the 16 counts on which the jury could not reach a verdict at the trial ("the Second Trial Indictment"). None of the counts alleged conduct in relation to any of the patients the subject of the HCCC's disciplinary Application.
On 19 December 2019 the HCCC advised Dr Coleman that it sought to proceed with its disciplinary application, that application having previously been adjourned from time to time as the criminal proceedings progressed. That indication led to Dr Coleman seeking the stay referred to in [1] above.
By email of 10 March 2020 to Dr Coleman's solicitor, Mr John Laxon, the ODPP advised that the criminal prosecution of Dr Coleman so far as it related to conduct concerning Patient F had been "directed to proceed no further" but that in respect of conduct concerning Patient B and other patients it was to "proceed at this stage". In an affidavit of 12 March 2020, Mr Laxon said that he had not received any further indictment reflecting the ODPP's decision to proceed with charges concerning Patient B or any of the 22 other patients nominated in the email. Mr Laxon also said that he had been unable to provide any indication as to when Dr Coleman's costs application to the Director-General would be determined but that Dr Coleman's professional indemnity insurer had recently agreed to indemnify Dr Coleman in respect of his costs in the HCCC disciplinary application. In cross examination before the Tribunal, Mr Laxon said that he thought that Patient B was "dropped off [the First Trial Indictment] at the last minute".
The HCCC's solicitor, Ms Jaimee Dinihan, gave evidence of speaking to Mr Hamish Fitzhardinge from the ODPP concerning the criminal prosecution of Dr Coleman. Ms Dinihan said in relation to a conversation she had with Mr Fitzhardinge on 17 February 2020: "In summary, Mr Fitzhardinge advised as follows. With respect to the charges not included on the [First Trial Indictment], approximately 30 victims are involved. While he was not able to say definitively what would happen to those remaining charges, it was likely that charges relating to [Patient B] would proceed and charges relating to [Patient F] would not. There would likely be a third indictment but again this could not [be] confirmed definitively."
Ms Dinihan also summarised a conversation she and HCCC's counsel had with the Crown Prosecutor briefed to appear at the proposed second trial: "In summary, Mr McCarthy [Crown Prosecutor] advised as follows. The trial on the hung counts had originally been set down for … six weeks on 4 May 2020 but those dates had now been vacated. At this stage, taking into account listing delays in the District Court, a trial date on the hung counts may be difficult and could not be guaranteed. Dr Coleman was still awaiting costs from the Director-General but had not yet received any funding, which could lead to further delay before a trial date was set."

The primary judgment

In addressing Dr Coleman's stay application, the Tribunal first considered whether Dr Coleman would be prejudiced in his defence of criminal proceedings if the disciplinary proceedings in the Tribunal were not stayed. It noted that Dr Coleman had been acquitted of charges in relation to Patients A, D and E and that there was no suggestion that those charges "could ever be revived". It noted also that conduct in relation to Patient C had not been the subject of any charge and that there was no suggestion that it might. It further noted that the ODPP had indicated that charges in relation to Patient F were not to be pursued. This led the Tribunal to conclude that the only prospect of a relevant criminal prosecution overlapping with the disciplinary proceedings would be a prosecution concerning "elements of Patient B's complaint".
The Tribunal gave the following reasons for distinguishing the High Court decision in Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5, on which Dr Coleman relied, and for refusing the stay that he sought: "[58] There are a number of differences between the circumstances in this matter and the circumstances in Zhao. In Zhao, the High Court determined that the charges underlying both the forfeiture proceedings and the criminal proceedings were the same charges. In this matter, in relation to Patient B, some of the allegations of fact underlying the disciplinary complaints are the same as some of the alleged facts underlying the criminal charges set out on the Court Attendance Notice of 2016. In the event that Patient B's complaint becomes the subject of charges on an indictment, it can be assumed that this will continue to be the case. Notwithstanding the overlap in the alleged facts, the complaints the subject of these disciplinary proceedings are quite different from the criminal charges. They are wider in scope, and their purpose is to bring about the examination of Dr Coleman's alleged behaviour in order to assess whether or not it constituted unsatisfactory professional conduct or professional misconduct, with a view to the protection of the public in the context of obtaining health care. In Zhao, the forfeiture proceedings and the criminal proceedings were both on foot and being pursued. In these disciplinary proceedings there seems to have been no progress in relation to the criminal charges concerning Patient B since the Court Appearance Notice of 2016, whereas the disciplinary proceedings are being pursued. [59] In Zhao, the possible prejudice to Mr Jin in the criminal proceedings, had the forfeiture proceedings been heard first, was described by the High Court as 'plain', whereas no countervailing urgency in relation to the forfeiture proceedings was identified to resist the application for a stay. In contrast, some of the complainants in these disciplinary proceedings, namely Patients A, D and E, have given evidence in the criminal trial of the [First Trial Indictment], which included the charges which related to them, and no further criminal proceedings are in contemplation with respect to them. Patient C made his complaint on 3 December 2012 in relation to a consultation on 14 April 2012. Patient C has not been involved in any criminal proceedings in relation to his own complaint, and nor will he be so involved. Patient F made her complaint on 21 October 2014 about consultations with Dr Coleman on 17 June 2010 and 17 September 2012. Nothing has been done with respect to criminal charges concerning Patient F's allegations since the Court Attendance Notice in 2016, and it is clear that nothing further will happen with respect to criminal charges. Patient B's complaint was made on 26 April 2013 in relation to a consultation with Dr Coleman on 17 October 2011. The criminal charges in relation to Patient B may appear on an indictment at some future time, but it is not guaranteed, and no time frame has been provided as to when that might happen. Further delay in these disciplinary proceedings is undesirable from the standpoint of the complainants and of the public generally. It is desirable that proceedings of this kind be finalised in a timely way, even where the practitioner has been suspended from practice. [60] In Zhao, the High Court believed that there was a real possibility that the prosecutor in the criminal proceedings might come into possession of any evidence which would be given in the forfeiture proceedings in Mr Jin's case, and that, even if the prosecutor were not able to use that evidence directly in the criminal proceedings, the possession of that evidence by the prosecution might affect Mr Jin's defence. Were these disciplinary proceedings to proceed to a hearing, the Tribunal would have the means, by the closing of the hearing room, the granting of s 128 [of the Evidence Act 1995 (NSW)] certificates, and by the making of non-publication orders, to ensure that no-one beyond the parties and their representatives will come into possession of potentially prejudicial evidence. This is mostly relevant to any future criminal proceedings with respect to allegations by Patient B. It is unlikely that relevant evidence will be adduced in these disciplinary proceedings which would undermine Dr Coleman's right to silence with respect to patients who are not the complainants in the disciplinary proceedings."

Dr Coleman's submissions on appeal

The matters put by Dr Coleman in support of the appeal that would lie if he were granted leave to appeal were to the following effect.
First, Dr Coleman submitted that the Tribunal misstated the status of criminal proceedings in relation to Patient B's complaints by treating them as in effect ones that might or might not be brought in the future, whereas relevant charges had in fact been made in the Court Attendance Notice and the November 2016 Indictment, and the evidence indicated that the charges were likely to proceed.
Secondly, Dr Coleman submitted that the Tribunal failed to have any, or at least sufficient, regard to s 3A of the National Law providing that "the protection of the health and safety of the public must be the paramount consideration" (and see s 3(2)(a)), which was a principle that the Tribunal had a duty to observe (see cl 9 of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act")). He submitted that regard to this principle should have led the Tribunal to conclude that the interests of the public were sufficiently protected by Dr Coleman's inability to practise medicine as a result of the suspension of his registration.
Thirdly, Dr Coleman submitted that the Tribunal erroneously distinguished the decision in Zhao and that the Tribunal should have regarded Zhao as indicating that a stay was required.
Fourthly, Dr Coleman submitted that the Tribunal erred in concluding that the "overlap" between the criminal prosecution and disciplinary proceedings related only to "elements" of Patient B's complaint. He put the following in support of this submission: "In the first criminal trial it was part of the prosecution case that the applicant deliberately withheld from referring [GPs] that he was conducting an intimate examination of a patient, that he deliberately withheld from GPs that he was conducting an external view of the [patient's] genitalia, and that he deliberately withheld from GPs that he was conducting internal examinations in relation to his patients … It is part of the HCCC complaint against the applicant that he failed to keep adequate medical records in relation to [Patients] B, C, D and E, including that he failed to record a vaginal examination (Patient B), that he failed to record results of a vaginal examination (Patient D) and that he failed to record an abdominal and groin examination (Patient E) … The evidence established that an alleged failure to keep adequate or accurate medical records is an issue relevant to both the disciplinary and criminal proceedings. Notwithstanding that Dr Coleman has been acquitted in relation to [P]atients A, D and E and the prosecution elected to discontinue proceedings in relation to [P]atient F, these matters remain highly relevant to any further criminal proceedings. The Tribunal did not refer to this evidence when making findings at [52] and [58] that the only prospect of evidence overlapping between the criminal prosecution and disciplinary proceedings related to Patient B's complaint."

The HCCC's submissions on appeal

The HCCC opposed the grant of leave to appeal on the basis in particular that no "reasonably clear injustice" had been established. It submitted that any potential prejudice to Dr Coleman related only to one patient, Patient B, and that any such prejudice could be removed by the Tribunal restricting the publication or disclosure of evidence (see cl 7 of Sch 5D of the National Law; s 64 of the NCAT Act), conducting the hearing wholly or partly in private (see s 49(2) of the NCAT Act; s 165K of the National Law) or granting a certificate under s 128 of the Evidence Act 1995 (NSW) (see s 38 of the NCAT Act).
Secondly, in response to Dr Coleman's submissions on his proposed appeal, the HCCC rejected that the Tribunal had made any error in its description of the status of the criminal proceedings. It submitted that the substance of the Tribunal's conclusion, that Dr Coleman was yet to face trial for the charges involving Patient B, was accurate and that it was open to it to conclude that there was "no guarantee" that Dr Coleman would be tried on charges involving Patient B. Thirdly, it submitted that the Tribunal had given sufficient weight to Dr Coleman's suspension from practising and that the Tribunal was well familiar with the objectives and guiding principles applicable under the National Law.
The HCCC submitted in this context that the Tribunal "had to consider not only Dr Coleman's interest, but also the interests of the community and of patients, and the protective purpose of the proceedings". It referred to the dates of the relevant complaints, including that of 17 December 2003 for Patient A, and submitted that the Tribunal was correct to find that "further delay in these disciplinary proceedings was undesirable from the standpoint of the complainants and of the public generally".
Fourthly, the HCCC submitted that the decision in Zhao was distinguishable principally on the bases, first, that in Zhao there was "no urgency for the proceeds of crime proceedings to go ahead", and, secondly, in Zhao "the prosecution would have been able to obtain Zhao's evidence given at forfeiture proceedings for the criminal trial that followed".
Fifthly, the HCCC submitted that the Tribunal recognised that despite an overlap with the criminal proceedings, the disciplinary proceedings were "quite different from the criminal charges" and that, presumably referring to the expression used in Zhao at [1] and [42], "[t]he wider scope of [the] disciplinary proceedings meant that they were not substantially identical to any future criminal proceedings" (emphasis added). It emphasised in this regard that the disciplinary proceedings extended to Dr Coleman's "clinical care, communication with patients, prescribing, adherence to privacy and confidentiality standards, and medical records". The HCCC also disputed Dr Coleman's submission that the medical records of Patients A, D and E remained "highly relevant to any further [criminal] proceedings", stating that Dr Coleman's own evidence in the criminal proceedings regarding those patients relied on medical records specific to each patient (other than Patient C, bearing relevance to Patient D).

Consideration of the proposed appeal

Section 145G of the National Law permits complaints under the Law to be dealt with by the Tribunal "even though the practitioner … concerned is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint" (see also s 243). As Zhao demonstrates, a provision of this type does not however oust or limit the Tribunal's power to stay proceedings in the Tribunal if the interests of justice require it. Circumstances that may result in a stay were referred to in Zhao at [35], in the context of the issues in that case, as follows: "Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required. To warrant a stay of the forfeiture proceedings, it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial."
The first question to be addressed in the present case is therefore the nature and extent of any prejudice that Dr Coleman may suffer if the HCCC is permitted to proceed to a hearing in the Tribunal of the complaints against him before final disposal of foreshadowed criminal proceedings.
If the complaints against Dr Coleman are heard in the Tribunal, at least one of the issues raised will be the same as an issue that will be raised by the foreshadowed criminal charges in relation to Patient B. One complaint in the Tribunal against Dr Coleman is that on 17 October 2011 he performed an internal vaginal examination of Patient B when there was no clinical indication for that to occur and that he did so without Patient B's consent. A foreshadowed criminal charge against Dr Coleman in relation to Patient B, as stated in the Court Attendance Notice of 2016, is to the same effect, that is, that he had sexual intercourse with Patient B, without her consent and knowing that she did not consent. The Crown's outline of its case identified the alleged sexual intercourse as constituted by the vaginal examination without consent referred to in the complaint.
In X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, Hayne and Bell JJ said the following in relation to a pre-trial compulsory examination of a person charged with criminal offences on topics related to the subject-matter of those offences: "[124] Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge." (Emphasis in original.)
This passage was cited with approval by the High Court in Lee v the Queen (2014) 253 CLR 455; [2014] HCA 20 in connection with the Court's observation that "[a]n accused person may be prejudiced in his or her defence because he or she can no longer determine the course to take at trial according only to the strength of the prosecution case" (at [41]). To similar effect, in Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 at [75] the plurality of the High Court referred to the prejudice suffered by an accused person who was subjected to compulsory examination prior to trial as follows: "If nothing else, the prosecution derived the forensic advantage, which the examinations were expressly calculated to achieve, of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking the appellants into a version of events from which they could not credibly depart at trial."
As is apparent from Zhao, prejudice to an accused person can similarly arise where the person, although not subjected to compulsory examination, is placed in the position of having to decide, before the criminal trial, whether to defend pending civil proceedings and by doing so expose their case on issues common to both the criminal and civil proceedings.
The HCCC contended in the present case that Dr Coleman had already exposed his case in respect of Patient B. It referred, in support, to evidence Dr Coleman gave at his first trial to the effect that he had never made an examination of a patient's genitalia without good clinical reasons. This however left as still unknown whether Dr Coleman denies that the particular act the subject of the relevant proposed criminal charge in fact occurred and his recollection of the occasion on which it was alleged to have occurred. There has not therefore been a full exposure of his case.
The HCCC also contended that the prospects of criminal charges concerning Patient B proceeding were too uncertain for that possibility to be seriously considered. As indicated in [13] above, the evidence before the Tribunal was however that it is "likely", although not definite, that the charges in relation to Patient B will proceed. This is sufficient to require account to be taken of them.
The potential prejudice to Dr Coleman if the disciplinary complaints proceed exists even if the possibility of criminal charges concerning Patient B is disregarded because the complaints against him in the Tribunal extend to allegations of failures to keep adequate medical records in relation to Patients B, C, D and E. These allegations arguably overlap with contentions put to Dr Coleman in cross examination at the criminal trial referred to in [7]-[8] above to the effect that he deliberately withheld from referring GPs that he conducted external and internal examinations of patients' genitalia. The implication appears to have been that this withholding was achieved, at least in part, by Dr Coleman failing to keep proper records of his examinations of intimate parts.
Moreover, much of the cross examination of Dr Coleman at the first criminal trial concerned his practices generally when conducting examinations of an intimate nature. Topics raised included Dr Coleman's practices concerning chaperones or support persons, the use of "modesty sheets", steps taken in relation to patient privacy including privacy screens and curtains, questions of a sexual nature, explanations of the need for examinations or to obtain consent and the removal of clothing.
To be weighed against any prejudice to the applicant for a stay is the prejudice that the other party may incur as a result of the grant of a stay.
Relevant in this context is s 3A of the National Law which states that, in the exercise of functions under the Law, "the protection of the health and safety of the public must be the paramount consideration". In the present case, as noted above in [3], Dr Coleman's registration as a health practitioner is currently suspended. This suspension is recorded on a public register. If he were nevertheless to engage in practice, the HCCC would have remedies available to it to prevent him doing so. The public is therefore protected against the conduct of the health practitioner whom the HCCC alleges is not fit to practise.
Before this Court, the HCCC contended that the public interest would nevertheless be prejudiced by the grant of a stay because it would result in delay in disposition of the complaints. Section 145 of the National Law is relevant in this regard in requiring all complaints "to be dealt with expeditiously". Likewise, the High Court observed in Zhao at [39] that "[n]o litigation should be delayed except for good cause". It however held at [39] that there was no basis for concluding that the civil forfeiture proceedings under consideration in that case should proceed "at all costs" and observed that "[i]t could hardly be said, from any point of view, that they are more important than criminal proceedings and should be given priority". The same is true of the disciplinary proceedings in the present case. With the practitioner suspended, delay is a relevant but not critical factor. Especially is this so where the complaints the subject of the disciplinary proceedings date back many years, mainly to 2012-14 but in one instance to 2003, without any explanation having been given to this Court for the delay that has occurred.
Furthermore, for the following reasons the Tribunal was in my view in error in concluding that the decision in Zhao did not support the grant of a stay in the present case.
First, the Tribunal appeared to disregard, or at least attach little significance to, the possibility of criminal charges being pursued against Dr Coleman in relation to Patient B because, it said, there had been "no progress" since the Court Attendance Notice of 2016. As I have noted however, the evidence before the Tribunal was that those charges are "likely" to be pursued and the fact that, as the Tribunal described it, "it is not guaranteed" that they will proceed does not mean that they should be treated as of little or no significance. Moreover the Tribunal incorrectly described the allegations as "uncharged" and said that they had "not been included on any indictment" when they had been included as charges in the Court Attendance Notice and had been in the November 2016 Indictment before being removing shortly before arraignment occurred for the purposes of transferring them to a different indictment (see [5]-[7] above).
Secondly, whilst recognising at [58] that there was an "overlap in the alleged facts", the Tribunal reasoned that, unlike in Zhao, the complaints the subject of the disciplinary proceedings were "quite different from the criminal charges" because they are wider in scope and they are designed to protect the public. The fact that the disciplinary proceedings are "wider in scope" than the criminal proceedings is of limited significance. If, as is the case, there is an overlap in that both are to deal with the same alleged misconduct, the potential for the prejudice to which I have referred in [33]-[36] above remains.
Thirdly, the Tribunal also distinguished Zhao on the basis that the possible prejudice there to the accused was described by the High Court as "plain". It is however equally plain in the present case.
Fourthly, the Tribunal also said that in Zhao there was no "countervailing urgency" in relation to the forfeiture proceedings, suggesting that the disciplinary proceedings in the present case are "urgent". This suggestion was, for the reasons I have given in [39] above, in error, in light of the existence of Dr Coleman's suspension.
Fifthly, the Tribunal further distinguished Zhao on the basis that, contrary to the position in Zhao, the Tribunal would have the means in the disciplinary proceedings in the present case to overcome any prejudice to Dr Coleman "by the closing of the hearing room, the granting of s 128 [of the Evidence Act 1995 (NSW)] certificates, and by the making of non-publication orders, to ensure that no-one beyond the parties and their representatives will come into possession of potentially prejudicial evidence".
It is not necessary to consider in this matter the extent, if at all, to which the principle of "open justice" applies to the Tribunal when exercising professional disciplinary functions (compare Tilley v Children's Guardian [2017] NSWCA 174 at [37]-[47]; DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [21] and following; Zhao at [44]). It is sufficient to refer to s 165K of the National Law, which provides that the Tribunal may only hear proceedings in private "if it is satisfied that it is desirable to do so in the public interest for reasons connected with the subject-matter of the proceedings or the nature of the evidence to be given". The HCCC accepted before this Court that the existence or prospect of criminal proceedings against a practitioner whose conduct was being examined in the Tribunal could not fall within the expression "the nature of the evidence to be given". It may also be doubted whether it would be a reason "connected with the subject-matter of the proceedings". As well, the HCCC's reliance on the possibility of court closure is difficult to reconcile with its assertion that it is important for the disciplinary proceedings to progress because the public should be made aware of the matters which are alleged against Dr Coleman and which the HCCC contends constituted professional misconduct. As to this last mentioned matter, it is relevant to note that there was in any event evidence before the Tribunal of considerable media publicity in relation to Dr Coleman's alleged misconduct.
Another difficulty with the Tribunal's reference to protective measures is that it treated them as designed "to ensure that no-one beyond the parties and their representatives will come into possession of potentially prejudicial evidence" (see [45] above) but as the passage from X7 quoted in [30] above makes clear, the keeping secret of pre-trial evidence does not preclude relevant prejudice being suffered. Furthermore, s 128 certificates are only concerned with self-incrimination and would not adequately address the type of prejudice described in [33]-[36] above.
In these circumstances, the Tribunal erred in concluding that the steps it referred to (see [45] above) could be taken and would preclude Dr Coleman being prejudiced by a continuation of the disciplinary proceedings.

Conclusion

In light of the errors of the Tribunal to which I have referred above and its consequent failure to given proper recognition to the prejudice that Dr Coleman would suffer if the proceedings in the Tribunal were allowed to proceed before the foreshadowed criminal proceedings were resolved, leave to appeal should be granted and the appeal allowed. On this Court's re-exercise of the Tribunal's discretion, a stay should be granted, for the reasons that appear above. The parties agreed that if this Court "were minded to grant a stay" it should be a stay until the Tribunal orders that the stay should be lifted.
For these reasons, I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside Order 1 made by the Tribunal on 6 May 2020. 4. Order that the disciplinary proceedings in the Tribunal against Dr Coleman be stayed until the Tribunal orders that the stay should be lifted. 5. Order that the HCCC pay Dr Coleman's costs of the proceedings in the Tribunal and on appeal.
MEAGHER JA: I agree that the orders proposed by Macfarlan JA should be made for the reasons that his Honour gives.
SIMPSON AJA: I agree with Macfarlan JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2020

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