Williams v Chiropractors Registration Board of Victoria [2002] VSC 7

Supreme Court of Victoria|2002-01-23|Before: BEACH J

Stay of Proceedings - Statutory Tribunal - Complaint of misconduct - No exceptional or extreme circumstances justifying stay.

The plaintiff in this proceeding, David John Williams, is a chiropractor by profession.

On or about 11 August 1999 the plaintiff forwarded his written response to the complaint to the Commissioner.

On 15 March 2000, and pursuant to the provisions of s.19(6) of the Health Services (Conciliation and Review) Act 1987, the Commissioner referred the complaint to the defendant after consultation with the defendant the Chiropractors Registration Board of Victoria.

On or about 16 May 2000 the Board wrote to the plaintiff seeking a response to various questions regarding the complaint.

On or about 2 June 2000 the plaintiff responded to the Board in writing.

On or about 17 October 2000 the Board wrote to the plaintiff advising him that it had completed its investigation of the complaint, had resolved to conduct an informal inquiry into the allegations set out in the complaint and seeking from the plaintiff a copy of his entire patient record in respect of the complainant.

On or about 2 November 2000 the plaintiff forwarded the patient's records to the Board.

The plaintiff heard nothing further from the Board until on or about 24 September 2001 when he then received a notice of formal hearing listed for a hearing on 25 and 26 October 2001.

As events transpired, a formal hearing did not take place on 25 and 26 October but on the 25th directions were given in relation to such a hearing. Those directions consisted of the following:

1. That the defendant (that is the Board) provide the further and better particulars of the complaint sought by the plaintiff by 26 November 2001;

2. That the defendant provide its expert's witness statement to the plaintiff by 15 December 2001; and

3. That the matter be listed for a full hearing on 24 and 25 January 2002.

On or about 10 December 2001, counsel assisting the Board forwarded to the plaintiff's solicitors a report of a chiropractor, Dr Phillip Ebrall, setting out the findings he had made following an examination he made of the patient on 17 October 2001.

On or about 18 December 2001 the plaintiff's solicitors wrote to the Board and to counsel assisting the Board requesting an adjournment of the 24 January 2002 hearing and advising the Board that the plaintiff intended to apply for a permanent stay of the proceeding against him.

On or about 18 December 2001 the Board's statement of expert evidence from Dr Ebrall was forwarded by counsel assisting the Board to the plaintiff's solicitors.

On the following day, that is 19 December, counsel assisting the Board informed the plaintiff's solicitors that the Board would not consent to an adjournment of the hearing on 24 January. That was followed up by a further letter on 21 December 2001 which again informed the plaintiff's solicitors that the Board would not consent to an adjournment of the hearing.

On 16 January 2002 the plaintiff filed a writ in this court whereby he seeks the following relief:

1. That the hearing of the complaint against the plaintiff set down for hearing on 24 January 2002 be permanently stayed.

2. That the hearing of the complaint against the plaintiff be vacated.

3. That the hearing of the complaint against the plaintiff not be commenced by the Board until the Board has provided proper particulars of the complaint to the plaintiff together with discovery of all documents relating to the complaint.

4. An order that the Board pay the plaintiff's costs of the proceeding.

On the same day the plaintiff filed a summons in the court seeking similar relief. However, when the matter came on for hearing before me yesterday, senior counsel for the plaintiff did not persist with his application that the proceeding be permanently stayed. Instead, he sought the following orders in the matter:

1. That the formal hearing by a panel appointed by the defendant set down for 24 January 2002 be vacated.

2. That the defendant provide discovery of all relevant documents including its file/minutes of Board meetings and any other documents relating to the plaintiff and the complaint of the patient.

3. That there be an exchange of any further affidavit evidence by 29 March 2002.

4. That there then be a further directions hearing to allocate a hearing date.

5. That the Board pay the plaintiff's costs of the application.

The plaintiff's contentions are conveniently summarised in paragraph 13 of the submissions of his senior counsel which reads:

"13. In summary, the plaintiff's contentions are these:- (a) The formal hearing should be permanently stayed because the defendant's delay in dealing with the complaint has occasioned oppressive prejudice to the plaintiff; (b) The formal hearing should be permanently stayed because of a breach of the rules of procedural fairness, in that there was ostensible bias in the defendant's decision that the plaintiff had a case to answer; alternatively; (c) That no formal hearing of the complaint against the plaintiff should be convened before the plaintiff has had a proper opportunity to prepare his defence, which opportunity includes: (a) Adequate time in which to obtain an expert's report; (b) Provision of further and better particulars; (c) Discovery of all the defendant's relevant documents."

The case for the Board can be summarised with equal brevity.

1. There has been no undue delay by the Board in pursuing the complaint and what delay has occurred has not occasioned prejudice to the plaintiff.

2. There is no evidence whatsoever of bias in the defendant's decision that the plaintiff has a case to answer.

3. The plaintiff has been provided with all available information available to the Board relating to the complaint and has had ample time to prepare his defence, including the obtaining of an expert's report if he is so minded.

The following are the views I have formed in relation to the matter. I should point out that as the application is now unnecessarily urgent, and I should add, through no fault on the part of the Board, I shall state them briefly.

Whilst there has been delay on the part of the Board, it has not been inordinate and in my opinion the plaintiff has not been prejudiced by such delay.

The plaintiff first became aware of the complaint of his former patient following her complaint to the Office of the Health Services Commissioner dated 10 June 1999. That is borne out by the fact that on 11 August 1999 the plaintiff forwarded a lengthy letter to the Commissioner replying to the complaint. He has been on notice since that time of the nature of the allegations made against him and, in my view, has had every opportunity to prepare his case to meet them.

In my opinion there is no evidence whatsoever of bias on the part of the Board or its members. The full Board of the defendant determined on 19 June 2001 to hold a formal inquiry into the plaintiff's conduct. It was then incumbent upon it to select a panel consisting of members of the Board. Members of the Board excluded from appointment to the panel were any members who had undertaken a preliminary investigation into the matter or had been a member of a panel which had held an informal hearing into the matter. See s.43 of the Chiropractors Registration Act 1996 (the Act).

None of the members appointed to the panel fell into those categories.

Objection was taken by the plaintiff to the fact that Dr Robert Alan Cathie, a competitor of the plaintiff, sat as a member of the Board. His presence on the Board, so it is said, gave rise to ostensible bias on the part of the Board.

Although Dr Cathie was present at the three meetings of the Board when the complaint against the plaintiff was discussed, he has sworn that he declared a conflict of interest in relation to the matter and took no part in any of the discussions. That he did do so is confirmed by the minutes of the meeting of 14 April 2000. See Exhibit RAC1 to the affidavit of the Registrar of the Board of 21 January 2002

It is said that the plaintiff has not been given adequate particulars of the complaint against him.

The Board proposes to call only two witnesses at the hearing of the complaint - the patient and its expert witness, Dr Ebrall. The plaintiff has been given detailed particulars of the patient's complaint. It is not without significance that when the matter was before the panel for directions on 25 October 2001 the plaintiff's then counsel, who I hasten to add was not the counsel who appeared before me yesterday, expressly told the panel that the plaintiff did not require the production of any statement from the complainant.

As to Dr Ebrall, the plaintiff has been given a copy of his detailed report and a copy of his very detailed statement. See Exhibits DJW 14 and DJW16 to the plaintiff's affidavit of 15 January 2002.

In my opinion the plaintiff has been given ample particulars of the complaint he is required to answer.

As to the plaintiff's professed inability to now obtain his own expert evidence, that is a situation entirely of the plaintiff's own making.

The jurisdiction this court has to permanently stay a disciplinary hearing by a statutory tribunal is one that should only be exercised in exceptional or extreme cases. See the decision of the High Court in Walton v. Gardiner (1993) 177 C.L.R. 378, particularly at pp. 392 and 396.

In my opinion this case does not fall into either of those categories.

The plaintiff's summons filed in the court on 16 January 2002 will be dismissed with costs to be taxed, including any reserve costs.

In his statement of claim the plaintiff has named the patient who made the complaint. There is also reference to her in the plaintiff's affidavit sworn in support of the present application. Those are clear breaches of s.54 of the Act which prohibits the publication of any information which identifies a complainant.

I direct therefore that the writ, statement of claim and affidavit be removed from the court file and, in the event the plaintiff intends to pursue the proceeding, replaced with documents which do not identify the patient.

Chiropractors Registration Act 1996

At a glance

Court

Decision date

Before

Source

Judgment (53 paragraphs)

Parties

Legislation Cited (1)