Medical Act 1959, s29E. Ex parte Farren; Re Austin and Anor (1960) 77 WN (NSW) 743; Herron v McGregor (1986) 6 NSWLR 246; Gill v Walton (1991) 25 NSWLR 190; Walton v Gardiner [1993] HCA 77; (1993) 112 ALR 289; Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, applied.

Miss A. Westwood

Solicitors for the Applicant: Simons Wolfhagen

Counsel for the Respondent: R. Mackay (for Medical Council)

Solicitors for the Respondent: Dobson Mitchell and Allport

GREEN CJ The applicant is a medical practitioner against whom the Medical Council of Tasmania has issued a summons pursuant to the Medical Act 1959, s29E charging him with professional misconduct alleged to have occurred between January 1972 and December 1973.

2. By originating application the applicant has sought, inter alia, an order "that the proceedings before the Medical Council of Tasmania be stayed on the ground that such proceedings are harsh and oppressive and an abuse of process".

3. The Medical Council of Tasmania was established by a previous Act continued by the Medical Act 1959. Proceedings initiated by a summons issued under s29E are heard by the Council which is empowered to remove the practitioner's name from the register of medical practitioners, suspend his registration or impose other sanctions. I turn first to consider the issue of my jurisdiction to make the order sought.

4. In Herron v McGregor (1986) 6 NSWLR 246 the Court of Appeal held that the Supreme Court of New South Wales had the power to stay proceedings in a disciplinary tribunal constituted under the Medical Practitioners Act 1938 (NSW) on the ground that their institution or continuation was harsh and oppressive or an abuse of process. In Gill v Walton (1991) 25 NSWLR 190 the jurisdiction of the Court to make such orders was not disputed and was accepted by the Court. In Walton v Gardiner [1993] HCA 77; (1993) 112 ALR 289 the High Court refused leave to amend a notice of appeal so as to raise a challenge to the jurisdiction of the Supreme Court of New South Wales to make such orders on the ground that its existence in New South Wales should now be regarded as "settled": per Mason CJ, Deane and Dawson JJ at 297. The jurisdiction invoked in those cases was said to be derived at least in part from the Supreme Court Act 1970 (NSW), s23 which provides that the "Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales". There is no precise equivalent to that provision in the Tasmanian legislation and instruments which confer and define the jurisdiction of the Supreme Court of Tasmania but I would have thought that the words used in s23 are also apt to describe the jurisdiction of the Supreme Court of Tasmania it being a superior court of record, exercising, subject to immaterial exceptions, plenary jurisdiction in the State of Tasmania. In any event it appears that s23 was not regarded as the only source of the jurisdiction of the Supreme Court of New South Wales to make such orders. In Herron v McGregor at 251 McHugh JA expressed himself as being "strongly of opinion that not only has this Court the inherent power to stay its own civil and criminal proceedings for abuse of process but its general supervisory and protective power extends to protecting inferior courts and tribunals from abuse of their procedure in relation to civil, criminal and disciplinary matters" and at 252 he also expressed the opinion that "the supervisory power of this Court extends to preventing an abuse of the procedure of the medical disciplinary tribunal". Similarly in Gill v Walton Mahoney JA held at 209 and 210 that the Supreme Court had a "general supervisory power ... in respect of the justice system of this State" which included the power to stay proceedings where there was an abuse of process in tribunals which were not part of the Supreme Court of New South Wales. It appears that Mahoney JA did not regard s23 as the sole source of that jurisdiction, his Honour regarding it as part of the Court's inherent jurisdiction and part of the same power which "in earlier times was exercised at least primarily through prerogative writs". The same view was taken by McFarlane J in Ex parte Farren; Re Austin and Anor (1960) 77 WN (NSW) 743 which it should be noted was a case decided before the enactment of s23. At 744 McFarlane J said "That the Court has power to stay proceedings initiated in it there is to my mind no doubt and I do not think that the contrary was argued. But I also feel no doubt that the inherent power of the Court to stay proceedings extends to all other classes of proceedings and courts in respect of which it is empowered one way or another to exercise jurisdiction by way of appeal or of a supervisory nature".

5. The Medical Council of Tasmania falls into the same class of tribunals as that which was being referred to in the above cases. This Court has a general supervisory jurisdiction in respect of proceedings in that Council both by virtue of s29G of the Act which confers a right of appeal from decisions of the Council to the Supreme Court and by virtue of the Court's power to issue prerogative writs in respect of proceedings of the Council. I hold that this Court has the power to make the order sought by the applicant. I turn to consider whether the power ought to be exercised in this case.

6. The relevant facts are contained in the affidavits which have been read to me and upon which there has been no cross examination and it is thus unnecessary for me to rehearse them.

7. In Walton v Gardiner (supra) the High Court identified some of the primary principles which should be applied. Referring to the decision of the Court of Appeal in that case Mason CJ, Deane and Dawson JJ said at 298:

"Gleeson CJ and Kirby P considered that the Court of

Appeal has power to make an order staying proceedings if

it is satisfied that the continuations of the proceedings

would be 'so unfairly and unjustifiably oppressive' as to

constitute an abuse of process. Their Honours made plain

that the court would only be so satisfied in an

exceptional or extreme case. Mahoney JA adopted a similar

approach, while formulating the appropriate test in

slightly different words. His Honour considered that the

question for the Court of Appeal was whether, in all the

circumstances, the continuation of the proceedings before

the tribunal would involve unacceptable injustice or

unfairness. In our view, the approach adopted by the

members of the Court of Appeal was correct."

8. As to delay the same justices approved the following statement by Deane J in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 58:

"The power of a court to stay proceedings in a case of

unreasonable delay is not confined to the case where the

effect of the delay is that any subsequent trial must

necessarily be an unfair one. Circumstances can arise in

which such delay produces a situation in which any

continuation of the proceedings would, of itself, be so

unfairly and unjustifiably oppressive that it would

constitute an abuse of the court's process."

9. Finally at 300 and 301 their Honours expressed the view that:

"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."

10. In this case counsel for the applicant placed some emphasis upon the reasons for the complainant's delay in prosecuting her complaint to the Council and upon the fact that there was no basis for concluding that the applicant contributed to that delay. However although the issue of whether the delay was justified or could be explained is capable of being relevant the primary consideration to which I should first direct my attention is whether the delay has been such that the continuation of the hearing before the Council would involve unacceptable injustice or unfairness or would of itself be so unfairly and unjustifiably oppressive that it would constitute an abuse of the Council's process.

11. The applicant submits that the continuation of the proceedings would be unjust or oppressive because he would be prejudiced in the presentation of his defence by the long period of time which has elapsed since the occurrence of the alleged misconduct. The applicant alleges that due to the passage of time he no longer has many of the records or notes made at the time of the consultations at which the alleged misconduct took place. However he does not assert that he has no independent recollection of the relevant events or consultations. The applicant has also deposed that had the complaint been made earlier he would have had "the benefit of my medical notes and access to witnesses who are either no longer alive or who would have had fresh memories, to defend myself". By way of example the applicant pointed out that the complainant was a private patient and identified three persons and subsequently referred to a fourth all of whom are now deceased who could have vouched for the fact that the applicant "did not see" private patients at the hospital where the misconduct is alleged to have taken place. However I do not understand the applicant's evidence to be going so far as to suggest that those persons could provide him with something akin to an alibi in respect of the occasions when the misconduct was alleged to have occurred and the applicant has not established that there is no other evidence available to him which would show that he was not permitted to see private patients at the hospital or that it was not his practice to do so. The applicant has not otherwise shown how the effluxion of time would prejudice him in his defence either because evidence has become unavailable or otherwise.

12. I am prepared to infer that the passage of time would make it more difficult for the applicant to defend this complaint than would have been the case had it been made promptly. I also accept that it could be said that there is an element of oppressiveness in the agitation after nearly twenty years of matters the pursuit of which the applicant could reasonably have assumed the complainant had abandoned. But even if in addition to those considerations I were to find that the reasons advanced by the complainant did not provide a sufficient explanation for her delay in prosecuting her complaint I am not persuaded that on the evidence as it stands at present the applicant has shown that the continuation of these proceedings would involve such a risk of injustice, unfairness or oppression that it could be characterised as an abuse of process. The order sought may only be made in exceptional circumstances and I am not satisfied that the applicant has discharged the heavy burden of persuasion which rests upon him.