Supreme Court of WA|2003-06-26|Before: Anderson J, Scott J

Hewett v Medical Board of Western Australia [2003] WASC 128 (26 June 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HEWETT -v- MEDICAL BOARD OF WESTERN AUSTRALIA [2003] WASC 128

Jurisdiction, practice and procedure - Medical practitioner - Injunction to stay inquiry before Medical Board - Long delay in bringing and hearing complaint - Application for injunction where appeal open - Abuse of process

Edelsten v Richmond (1987) 11 NSWLR 51

Fisher Catering Services Pty Ltd & Anor v The Australian Liquor, Hospitality & Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch, unreported; SCt of WA; Library No 970070A; 26 February 1997

Gill v Walton (1991) 25 NSWLR 190

Good v The Medical Board of Western Australia, unreported; SCt of WA (Anderson J); Library No 940581; 27 October 1994

R v Climo and Bentley (1986) 7 NSWLR 579

R v McConnell (1985) 2 NSWLR 269

The Queen v Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15

1 SCOTT J: The plaintiff in this action issued a writ of summons on 20 February 2003.

2 The statement of claim says that the plaintiff was and is a medical practitioner registered under the Medical Act 1894 ("the Medical Act").

3 The plaintiff pleads that by notice of 2 October 2002 the defendant gave notice of an inquiry alleging that the plaintiff may be guilty of infamous or improper conduct in a professional respect. Particulars are then given of the allegations. It is not necessary to set out those particulars, save to say that they allege sexual matters in relation to patients.

4 The plaintiff pleads that in the middle of 1994 he was charged with indictable offences in relation to one of the patients who had made allegations against him. A committal hearing was held in relation to those charges in April 1995. In October 1995 the plaintiff was committed for trial on the charges. The plaintiff pleads in the statement of claim that in September 1996 the Director of Public Prosecutions filed a nolle prosequi in relation to the charges. The plaintiff pleads that on or about 10 April 1997 the Director of Public Prosecutions notified the defendant of the nolle prosequi.

5 The plaintiff pleads that on 25 July 1997 summary proceedings were held in the Court of Petty Sessions in relation to another allegation made against the plaintiff. Following trial, that charge was dismissed.

6 The statement of claim sets out a course of correspondence between the plaintiff and the defendant which ultimately led to the defendant giving the plaintiff notice of an inquiry in relation to four complainants. That notice of the inquiry was issued on 2 October 2002.

7 In the statement of claim the plaintiff seeks a declaration that the holding of the inquiry by the defendant would constitute an abuse of process and an order seeking that the inquiry by the defendant the subject of the notice be permanently stayed.

8 On 22 May 2003 the plaintiff made an application to the defendant seeking an order staying the inquiry into his professional conduct. The inquiry relates to three former patients. On 3 June 2003 the Board published extensive reasons for dismissing the application. In the final paragraph of its decision the Board said:

"The inquiry into the professional conduct of the practitioner has been listed to be heard before the Board from 30 June to 4 July 2003. The parties have been aware of this fact since 26 March 2003. In the light of the lengthy delay which has already occurred in proceeding to inquiry and for the reasons articulated, the Board declines also to accede to the request for an interim stay of these proceedings 'pending the hearing and determination of the Supreme Court action CIV 1171 of 2003.'"

9 This application for an injunction came before the Court as a matter of urgency on Wednesday, 25 June 2003. The plaintiff's summons for an injunction sought the following orders:

"1. An injunction be granted restraining the defendant until the hearing and determination of this action from hearing or taking any further action in relation to any of the matters the subject of the minute of amended notice of inquiry issued by the defendant dated 2 October 2002."

10 The plaintiff also sought other ancillary orders.

11 The inquiry which the defendant seeks to conduct and the plaintiff seeks to injunct is to be conducted under s 13 of the Medical Act 1894 which provides:

"13. Inquiries into, and striking off and suspension of, medical practitioner

(1) Where it appears to the Board that a medical practitioner, not being a body corporate, may be -

(a) guilty of infamous or improper conduct in a professional respect;

(b) affected by a dependence on alcohol or addiction to any deleterious drug;

(c) guilty of gross carelessness or incompetency;

(d) guilty of not complying with or contravening a condition or restriction imposed by the Board with respect to the practice of medicine by that medical practitioner; or

(e) suffering from physical or mental illness to such an extent that his or her ability to practise as a medical practitioner is or is likely to be affected,

the Board shall hold an inquiry into the matter."

12 Other provisions in s 13 relate to the powers of the Board following such an inquiry.

13 Section 13(8) provides:

"(8) (a) Any person who is or was registered as a medical practitioner and who is aggrieved by any decision of the Board may in accordance with Rules of Court, which the Judges of the Supreme Court are hereby authorized to make or prescribe, appeal to a Judge of the Supreme Court against such decision.

(b) Any such appeal shall be in the nature of a rehearing, and the Judge hearing the same may confirm, quash or vary the order made by the Board.

(c) The decision of the Judge shall be final and the Board shall give effect thereto according to the tenor thereof."

14 It is important to note that in this case, following the publication of the reasons of the defendant for refusing the plaintiff's application for a stay delivered on 3 June 2003, the plaintiff has not exercised the right of appeal provided for in s 13(8) of the Medical Act. Counsel for the plaintiff submitted that there may be controversy as to whether the interlocutory decision refusing the stay application was a "decision" within the meaning of that term in s 13(8)(a) of the Medical Act. It follows, so it is said, that there may be no right of appeal in these circumstances.

15 In my view, the submissions made by counsel for the plaintiff cannot be sustained: Ralph M Lee (WA) Pty Ltd v Fort (1991) 4 WAR 176 per Anderson J, at 181; Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80.

16 In my view, "decision" in s 13(8)(a) of the Medical Act should not be given a narrow meaning so as to confine it to the final determination in the inquiry.

17 There are many statutes which provide a right of appeal from a decision of a tribunal. Ralph M Lee v Fort is a good example. Having examined the provisions of the Medical Act, there is no reason, in my opinion, why "decision" in s 13(8)(a) should be given a confined meaning. The importance of that conclusion is that the plaintiff had a right of appeal against the decision of the Medical Board delivered on 3 June 2003 and elected not to take that course. The present application is for equitable relief, namely an injunction to restrain the defendant from carrying out the statutory function entrusted to it under the provisions of the Medical Act. That is an important consideration in determining whether it is appropriate for an injunction to issue in all of the circumstances.

18 The plaintiff seeks to rely upon two affidavits sworn 11 and 24 June 2003. The first of those affidavits refers to the plaintiff's health and the extensive delay between the time these allegations are said to have occurred, and the time at which the hearing is to be conducted. All of those matters have been considered. The plaintiff also deposes in detail to the history of the matter, the charges that were laid against him, the disposition of those charges and the course that this inquiry has taken. The plaintiff refers to the long delay between the time the defendant conducted an inquiry into the allegations and the notice of inquiry which the plaintiff says he received on or about 2 October 2002 which was amended on 4 March 2003.

19 The plaintiff also refers to the considerable difficulty he has encountered in trying to locate witnesses he would like to call at the inquiry. In particular, he refers to a receptionist who, he says, was present at his surgery at a time when the incidents alleged in the inquiry were said to have occurred. The plaintiff says that he has been unable to locate that witness because she is travelling around Australia, having sold up her home and all her belongings.

20 The plaintiff also deposes to the difficulties he has encountered in trying to obtain evidence from other medical practitioners who worked at the practice at which he worked at the time of these allegations.

21 In addition, the plaintiff deposes to the fact that at least one of those witnesses (Dr Kessly) is now aged 81 and suffers from profound deafness and ill-health to the extent that it is said that Dr Kessly is now physically unable to give evidence.

22 The plaintiff also deposes to the difficulty that other witnesses have in recalling events said to have taken place so long ago.

23 In the affidavit of 11 June 2003 the plaintiff deposes to the difficulty encountered in recovering medical notes dealing with the patients the subject of the allegations. Part of the difficulty to which he deposes, arises from the fact that records were seized by the police for the purposes of the police inquiry and, although some of those notes have been returned to him, he says that the notes concerning at least one of the patients have not been located.

24 The plaintiff finally deposes to the fact that the allegations are causing him stress and causing his health to deteriorate. All of those matters are properly matters which have been taken into account in considering whether the plaintiff's application should be granted.

25 In addition, as I have said, the plaintiff filed a second affidavit sworn 24 June 2003. In that affidavit the plaintiff refers to further difficulties that he has had in contacting witnesses and obtaining evidence for the hearing. In particular, he refers to a witness, Dr Gary McDowall, who, he says, was to have brain surgery on Monday, 16 June 2003 to remove a malignant tumour. He deposes to the fact that Dr McDowall may be unable to testify appropriately, or at all, after the operation.

26 Again, all of those matters have to be taken into account in exercising the discretion as to whether an injunction should issue in all the circumstances of the case.

27 As I have already said, the reasons of the defendant in refusing the plaintiff's application for a stay of the inquiry were provided to the Court on the day prior to the hearing of this application. Those reasons are very extensive, but they comprehensively cover almost all of the matters that have been brought before this Court for the purposes of the application. The defendant's reasons have been taken into account.

28 So far as the legal principles surrounding the application are concerned, as this is an application for an injunction, the Court is required to take into account all of those factors to which each counsel has referred, both in their oral submissions and their written outlines. In particular, I would refer to the following:

1. The fact that the defendant is a disciplinary tribunal which has the responsibility of supervising medical practitioners and their registration in accordance with the terms of the Medical Act. The Board has the important role of ensuring that the public is properly protected in relation to the conduct of medical practitioners: Herron v McGregor (1986) 6 NSWLR 246; Walton v Gardiner (1993) 177 CLR 378, at 395.

2. The right of the plaintiff to a speedy trial: Bell v Director of Public Prosecutions [1985] AC 937; Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, at 33 - 34.

3. The question of fairness to the accused in terms of the availability of evidence and the capacity of witnesses to recall events occurring so long ago.

4. Ensuring that the proceedings are not an abuse of process in the sense of being so unfair or oppressive as to cause the inquiry to be properly regarded as unfair: Herron v McGregor (supra).

5. The fact that the plaintiff elected to bring this application in civil proceedings 1171 of 2003 rather than appeal against the decision of the defendant delivered on 3 June 2003: see "Spry Equitable Remedies" 4th Edition at page 465 and the authorities cited therein.

6. The history of this matter which I have taken into account and which is set out in detail in the chronologies provided by counsel for each of the plaintiff and the defendant, including reference to the criminal proceedings that were instituted and ultimately not pursued and which must have caused considerable stress for the plaintiff.

29 It should also be mentioned that whilst criminal charges were pending against the plaintiff, as I have already explained, it was not appropriate for the defendant to conduct the inquiry: see Martins & Ors v Racing Penalties Appeal Tribunal of Western Australia & Anor, unreported, FCt SCt of WA; Library No 970519; 10 October 1997. That factor does account for some, although by no means all of the delay in this case. In that context it should be remembered that although the writ in this matter issued on 20 February 2003, it was not until 9 June 2003 that the plaintiff filed the application for an interim injunction. That fact should be considered in conjunction with the Board's reasons which were published, as I have said, on 3 June 2003.

30 The inquiry to be conducted by the Board is scheduled to take place over a period of five days, commencing on Monday, 30 June 2003 and concluding on 4 July 2003. The parties have been aware of those hearing dates since 26 March 2003.

31 No doubt the Board will take into account, in the course of the inquiry, the difficulties to which the plaintiff has referred. If it be the case that an adjournment is necessary for the plaintiff's witnesses to be called before the inquiry, either because of the difficulty in locating them, or for health reasons, then no doubt the defendant will consider such matters. In addition, as I said to counsel in the course of hearing this application, the plaintiff's medical notes (at least to the extent that they have been recovered) can no doubt be used for the purpose of having witnesses refresh their memories about events on particular dates or at particular times. To the extent that some of the notes have not been recovered, if it becomes important, the Board can either allow an adjournment or deal with an application either for a subpoena or for other steps to be taken to locate the notes in question. That, however, is a matter for the Board and not for this Court to consider.

32 In all the circumstances, whilst the plaintiff has established that there is a serious question to be tried in this action, in my view, the balance of convenience does not favour the granting of the injunction: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, at 153 - 154; Patrick Stevedores Operations No 2 Pty Ltd v Marine Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 at 23 - 24.

Hewett v Medical Board of Western Australia [2003] WASC 128

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Judgment (49 paragraphs)

Hewett v Medical Board of Western Australia [2003] WASC 128 (26 June 2003)

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Cases Cited (12)