Judgment Number: [2004] TASSC 36

NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL (NO 4)

1 The applicant was the subject of disciplinary proceedings before the Medical Complaints Tribunal ("the Tribunal") which resulted in an order that his name be removed from the Roll of Medical Practitioners, that he be fined $4,000 and that he pay the costs of these proceedings. The decision was delivered on 16 May 2003.

2 From this decision the applicant appealed pursuant to the Medical Practitioners Registration Act 1996 ("the Act"), s61. On 1 April 2004, Blow J dismissed the appeal and the applicant has now appealed to the Full Court. By virtue of the Act, s54(3), the Tribunal's decision did not take effect until it was confirmed by Blow J on that date. The applicant now seeks a "stay of proceedings", or more accurately, a stay of the order of dismissal of the appeal, which dismissal had the effect of confirming the Tribunal's order. Blow J delivered a number of written rulings prior to the dismissal of the appeal. The grounds of the appeal to the Full Court are as follows:

"1 His Honour erred in holding, [2003] TASSC 139 at [21]- [25], that the test as to whether the Court would conduct a rehearing on the basis of evidence adduced by the Appellant on the appeal, which evidence had not been placed before the Respondent Tribunal ('the new evidence'), was the test in Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435 at 444-445.

2 His Honour, given the seriousness of the allegations adjudicated by the Tribunal, the circumstance that the conduct alleged would if proved constitute criminal conduct, the gravity of the sanctions flowing from a finding of guilt and the nature of the proceedings against the Appellant ('the relevant circumstances'), should have applied a test by which the Court would conduct a rehearing on a basis of the new evidence in the event that the Court were satisfied that:

(a) an opposite result might have been produced had the new evidence been before the Tribunal, or

(b) there was a significant possibility that an opposite result would have been produced, or

(c) the likelihood of an opposite result was such that in the relevant circumstances the interests of justice favoured a rehearing.

3 In the alternative, his Honour erred, [2003] TASSC 139 at [26]- [32], in the manner in which his Honour applied the test in Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435 at 444-445 on the question whether to conduct a rehearing on the basis of the new evidence.

4 His Honour, applying the test in Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435 at 444-445, should have conducted a rehearing on the basis of the new evidence.

5 Further, his Honour erred in finding, [2004] TASSC 29 at [12]- [20], that a fair-minded observer or one of the parties would not reasonably apprehend that the members of the Tribunal might not bring impartial minds to the resolution of the questions they were required to decide.

6 His Honour should have found a fair-minded bystander or a party apprised of all the circumstances would or might entertain a reasonable apprehension that the Tribunal including its Secretary, alternatively the Tribunal by reason of or in light of its Secretary's comments, actions or opinions, would or might not bring impartial and unprejudiced minds to the resolution of the question before it.

7 His Honour erred, [2004] TASSC 29 at [23]- [48], in dismissing the contentions of the Appellant that the decision of the Tribunal was erroneous.

8 His Honour should have found that the decision of the Tribunal was erroneous for the reasons advanced by the Appellant and set out [2004] TASSC 29 at [23]- [48]."

3 It is common ground between counsel and, for my part, I am satisfied that the grounds are arguable. Indeed, the grounds relating to the appropriate test to be applied on the question whether to conduct a re-hearing on the basis of the new evidence deal with an important issue in respect of which there is little direct authority.

4 Since about 1997, the applicant has been resident in the State of Victoria. In May 2003, he gave a written undertaking to the Medical Practitioners Board of Victoria to the following effect:

"I Dr Neville S V Fernando provide the following undertaking to the Medical Practitioners Hoard of Victoria:

2 That I will work in a maximum of two locations both of which must be approved by the Board;

3 That I will erect a sign in both locations which may be either of the following terms:

'Dr Fernando does not consult female patients' or ´Dr Fernando only consults male patients'

4 I hereby authorise the Board to access all information from the Pharmaceutical Benefits Scheme and the Health Insurance Commission to enable the Board to monitor that I am not consulting with female patients;

5 That I will submit a statutory declaration by the 5th day of each month evidencing my compliance with these undertakings for the prior month;

6 That I authorise the Board to make these undertakings known to the public if the Board needs to do so, for example in the circumstance of a public enquiry.

I will provide evidence of my compliance with point 3 above on or before 6 May 2003.

5 An affidavit by his solicitor deposes to the following facts:

* He currently practices on a part time basis as a medical practitioner in Victoria, 12 to 15 hours per week and in addition he teaches one session of two hours per week at Monash University.

* He has informed the deponent that he continues to provide evidence of his compliance to the Medical Practitioners Board of Victoria by statutory declaration on the fifth day of each month.

* He has one dependent daughter attending university in Melbourne, who still lives at home. All of the income from Dr Fernando's part time medical practice is required by him to meet mortgage repayments on his house, as well as his day-to-day living expenses.

* He has been practising on a part time basis in Victoria since the original Notice of Appeal LCA 43/2003 was lodged on 29 May 2003 appealing against the whole of the decision of the Medical Complaints Tribunal made on 16 May 2003.

* He has informed the deponent that the income he currently receives from his part time medical practice in Victoria is his family's primary source of income and that it would be extremely prejudicial to his ability to earn any income, particularly given his age of 68 years, if he were to be removed from the Register of Medical Practitioners in Victoria prior to all of his rights of appeal being exhausted.

6 By virtue of the Mutual Recognition Act 1992 (Cth), s33, if a person's registration as a medical practitioner in the State of Tasmania is cancelled on disciplinary grounds, then that person's registration in another State is affected in the same way. Hence, the position is that if the order of Blow J is not stayed and the applicant is served with a notice pursuant to the Act, s40(1)(b)(iii) removing his name from the Register of Medical Practitioners, his registration as a medical practitioner in the State of Victoria will be likewise affected. Importantly, however, the Mutual Recognition Act, s33(2) provides:

"(2) However, the local registration authority of the other State may reinstate any cancelled ... registration ... if it thinks it appropriate in the circumstances."

7 A stay should not be granted unless the Court is satisfied that it is appropriate to do so. It is not necessary for an applicant for a stay of proceedings to show special or exceptional circumstances. Each case must be considered on its merits (Alexander v Cambridge Credit Corporation Ltd (1985) 10 ACLR 42; Re Middle Harbour Investments Ltd (In liquidation), unreported New South Wales Court of Appeal 15 December 1976; and Turner v Fleming B29/1986, Underwood J).

8 As has often been observed of disciplinary proceedings conducted by professional bodies, they are not punitive in character but rather protective of the public. In Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at 553 - 555, Doyle CJ said:

"The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession."

He then referred to NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183 - 184 and continued:

"Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrongdoing, this passage makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case.

In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order."

9 In my view, it has not been demonstrated that a stay of Blow J's order is appropriate. It is to be expected that the applicant will suffer some monetary loss if his registration in Victoria is cancelled and he can no longer practice there as a medical practitioner, but the extent of his assets and the degree of hardship to which he will be exposed has not been the subject of any affidavit material and remains a matter very largely of speculation.

10 The findings of the Tribunal, confirmed by Blow J, resulted in an order intended to protect the public, not only from professional misconduct by the applicant, but by reason of its deterrent character, by other medical practitioners who might be tempted to engage in such behaviour. Prima facie that order should take effect. If the appeal to the Full Court succeeds, it will be rescinded. It is not in the public interest that persons found guilty of professional misconduct by their regulating or disciplinary authorities should be routinely relieved of the consequences of the orders made by those authorities on proof of some financial hardship and the demonstration of a likelihood of non-repetition due to restraints, or constraints, voluntary or otherwise, upon their opportunity to repeat the misconduct.

11 The applicant now practices solely in Victoria and it would be inappropriate, in my view, for this Court to make an order which would have the effect of authorising the applicant to continue to practice in that State, notwithstanding his undertakings given to the authority in that State. The latter authority has jurisdiction under the Mutual Recognition Act, s33(2), to relieve him from the automatic effect in Victoria of the cancellation of his registration in Tasmania. It seems to me to be singularly appropriate that such an authority should determine whether, in the current circumstances, he should be permitted to practice and, if so, under what conditions.

12 I am sure that the Victorian authority will respect my acceptance of the proposition that the applicant does have an arguable case for presentation to the Full Court and will not see this refusal of his application as indicating any lack of merit in respect of that appeal.