EDELSTEN v MEDICAL TRIBUNAL OF NEW SOUTH WALES

Court of Appeal (NSW)|1993-04-14|Before: Kirpy P, Kirby P, Priestley JA, Meagher JA

EDELSTEN v MEDICAL TRIBUNAL OF NEW SOUTH WALES [No 2]

SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL

PRACTICE & PROCEDURE - Court of Appeal - adjournment - legal aid appeal - statutory right to adjournment - Legal Aid Commission Act 1979, s 57 - third application for adjournment of appeal - application foreshadowed shortly before hearing - refusal of legal aid - late withdrawal of appellant's legal representatives - importance of appeal to appellant - difficulty of presenting appeal unaided - protection of the public interest - held: In accordance with s 57 of the Act the proceedings should be adjourned on conditions.

Kirby P. Before the Court is a belated application for an adjournment of these proceedings. The proceedings are an appeal to this Court from a determination by the Medical Tribunal affecting Dr Geoffrey Edelsten. There have been earlier proceedings in the Court. The principal matter which remains outstanding in the appeal is the challenge by Dr Edelsten to the manner in which the Medical Tribunal disposed of the case before it. There have been two earlier applications for adjournment of the appeal, namely, on 11 November 1992 and on 15 December 1992.

On that last mentioned occasion special orders were made in order to ensure that there would be no further adjournment of the appeal. However, when the matter was called on this morning a third application for adjournment was made. This had been foreshadowed last Thursday when a message was sent to the Court, copy to the respondents, that the legal practitioners formerly appearing for Dr Edelsten had withdrawn from the case. They did so earlier lastweek. They did so following the decision of a Legal Aid Committee refusing Dr Edelsten legal assistance to prosecute his appeal.

The respondents opposed this application for adjournment. The decision on the application was adjourned for consideration until this afternoon. In the meantime, Dr Edelsten gave instructions for the filing of an appeal to a Legal Aid Review Committee against the refusal of legal aid. By virtue of s 57 of the Legal Aid Commission Act 1979, this action imposes upon the Court, subject to the conditions set out in the section, an obligation to adjourn the proceedings on such terms and conditions as it thinks fit.

The application for adjournment was thus renewed when the Court re-assembled this afternoon but on the new footing mentioned. It was opposed upon the basis that Dr Edelsten knew earlier that he had a right of appeal to a Legal Aid Review Committee and had not pursued it and on the basis that this Court had not been made aware of the nature of the decision refusing legal aid in the first place.

So far as the first point is concerned it emerges from the evidence of Dr Edelsten that all he knew was that there was some form of review of the legal aid decision and that he has asked about it. However, the refusal of legal aid was made as recently as late March 1993 with consequences announced to him as

recently as last week. I do not, therefore, believe that this consideration can stand against him in the application for the adjournment for which s 57 of the Act provides.

So far as the second point is concerned, it is true that the Court does not know the precise nature of the legal aid decision. Nor does it know the basis of the initial refusal. However, these facts do not remove the competency of the appeal, the fact that it has been lodged, the fact that the case before the Court is self-evidently very serious for Dr Edelsten and the fact it would bebetter prosecuted if Dr Edelsten were represented than if the matter were forced on today. Dr Edelsten has given evidence which appears to show that, pending any reversal of the orders of the Medical Tribunal under appeal, he is not practising medicine. The Court must keep in mind, in the exercise of this jurisdiction, the primary obligation of its exercise in a case such as this which is the protection of the public. It would seem that the public is fully protected by observance of the Tribunal's order pending the appeal.

Under the provisions of s 57 of the Legal Aid Commission Act, the Court is obliged in such a case to adjourn the proceedings. It should do so upon terms and conditions which have earlier been discussed with the parties.

The respondents have proposed a number of conditions. Those conditions have been considered and accepted by Dr Edelsten. In my view they are appropriate conditions. Much will, of course, depend upon the conclusion of the legal aid appeal which is before a Legal Aid Review Committee. However, in accordance with arrangements which have been made with the Legal Aid Commission, I will have the Commission informed that priority should be given to the consideration of the appeal, if at all possible.

The orders which I would therefore propose for the foregoing reasons are:

Adjourn the appeal for mention before the Court on 14 July 1993;

The appellant to file and serve on or before 7 June 1993 any affidavits containing any additional fresh evidence upon which he proposes to rely in the appeal;

The appellant to file and serve on or before 21 July 1993 an affidavit sworn by him confirming that the appeal has beenfully prepared for hearing and that he is ready to proceed with the hearing of the appeal;

The appellant, on or before 5 May 1993, to pay the costs of the second and third respondents thrown away by the adjournment of the proceedings today in the sum of $1,940; and

Should the appellant fail to comply with orders 2, 3 and 4, or any of them, the second and third respondents will have leave to apply to the Court either at the mention on 14 July 1993, or if they be so advised at such earlier date if due notice is given to the appellant, for the dismissal of the appeal for want of prosecution.

Priestley JA. I agree. Meagher JA. I agree. Kirby P. They, then, are the orders of the Court.

Adjourn the appeal for mention before the Court on 14 July 1993;

The appellant to file and serve on or before 7 June 1993 any affidavits containing any additional fresh evidence upon which he proposes to rely in the appeal;

URJ EDELSTEN v MEDICAL TRIBUNAL OF NEW SOUTH WALES [No 2] (Kirby P) 3

The appellant to file and serve on or before 21 July 1993 an affidavit sworn by him confirming that the appeal has been fully prepared for hearing and that he is ready to proceed with the hearing of the appeal;

The appellant, on or before 5 May 1993, to pay the costs of the second

5 and third respondents thrown away by the adjournment of the proceedings today in the sum of $1,940; and

Should the appellant fail to comply with orders 2, 3 and 4, or any of them, the second and third respondents will have leave to apply to the Court either at the mention on 14 July 1993, or if they be so advised at

10 such earlier date if due notice is given to the appellant, for the dismissal of the appeal for want of prosecution.

Counsel for the opponents (2nd and 3rd Respondents to the appeal): M G Sexton

Solicitors for the opponents (2nd and 3rd Respondents to the appeal): H K Roberts: State Crown Solicitor

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Parties