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Supreme Court of Victoria |
Last Updated: 10 December 2021
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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PRACTICE AND PROCEDURE — Victorian Civil and Administrative Tribunal
(‘Tribunal’) granted a stay of a decision by
the applicant
suspending the respondent’s registration as a medical practitioner —
Applicant applied for a stay of Tribunal’s
stay order pending the hearing
and determination of its application for leave to appeal the Tribunal’s
stay order — Whether
applicant has arguable case that Tribunal erred in
granting stay order — Whether applicant’s appeal will be rendered
nugatory if Tribunal order not stayed — Adverse impact on respondent if
stay of Tribunal order granted — Public interest
in respondent being able
to continue practising pending the hearing of applicant’s application for
leave to appeal —
Application for stay dismissed.
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APPEARANCES:
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Counsel
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Solicitors
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For the Applicant
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Mr J Pizer QC with
Ms M Isobel |
Russell Kennedy
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For the Respondent
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Mr S Reid
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Perry Maddocks Trollope Lawyers
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Introduction and background
1 The following matters are not
contentious. Dr Walid Aly is a consultant anaesthetist. He obtained his degree
in medicine in December
1990 from Cairo University, Egypt. He undertook
training as an anaesthetist in Australia from 2004 to 2011 and became a Fellow
of
the Australian and New Zealand College of Anaesthetists (‘ANZCA’)
in 2011. He has practised as an anaesthetist since
2004.
2 On 29 January 2020 Dr Aly was charged with one
count of rape and one count of recklessly causing injury. On 26 February 2020 a
self-notification from Dr Aly was received by the Australian Health Practitioner
Regulatory Agency (‘AHPRA’) in relation
to the charges
(‘notification 00437204’).
3 On 4 March
2020 the Medical Board of Australia (‘Board’) commenced an
investigation of notification 00437204 under s
60 of the Health Practitioner
Regulation National Law (Victoria) Act 2009 (‘National
Law’).
4 On 11 March 2020 the Board considered
an agenda paper and formed a reasonable belief that it was in the public
interest to take
immediate action in relation to Dr Aly. The Board
proposed to take immediate action under s 156(1)(e) of the National Law by
suspending
Dr Aly’s registration. The Board invited Dr Aly to make
submissions.
5 On 23 March 2020, after considering a
further agenda paper, supporting documents and Dr Aly’s written and verbal
submissions,
the Board decided not to take immediate action under s 156(1)(e).
On 27 March 2020 Dr Aly was notified of this
decision.
6 On 16 June 2021 AHPRA received an email
from Victoria Police advising that Dr Aly had been committed to stand trial
for the offence
of rape. On 20 July 2021 AHPRA received a further email from
Victoria Police advising that the criminal proceeding was listed for
mention on
4 July 2022. On 23 August 2021 the Board considered a further agenda paper and
formed a reasonable belief that it was
in the public interest to take immediate
action in relation to Dr Aly. The Board proposed to take immediate action under
s 156(1)(e)
of the National Law by suspending Dr Aly’s
registration.
7 By letter dated 23 August 2021, the
Board notified Dr Aly’s legal representatives, Perry Maddocks Trollope
Lawyers of its
proposed decision to take immediate action to suspend Dr
Aly’s registration. The Board invited Dr Aly to make written and/or
verbal submissions to:
(a) address any concerns raised in the notification and provide the Board with relevant evidence to support Dr Aly’s view; and
(b) provide evidence to the Board as to why Dr Aly’s alleged conduct does not pose a serious risk to persons and why it is not necessary to take immediate action in the public interest.
8 On 30 August 2021, the Board considered
the agenda paper, supporting documentation and Dr Aly’s written and verbal
submissions,
and decided to take immediate action under s 156(1)(e) of the
National Law to suspend Dr Aly’s registration (‘suspension
decision’).
9 On 31 August 2021 the Board
notified Dr Aly of the suspension decision. On 8 September 2021 Dr Aly
filed an application for review
of the suspension decision with the Victorian
Civil and Administrative Tribunal (‘Tribunal’) and sought a stay of
that
decision. The application for a stay of the suspension decision was heard
by Senior Member Smithers on 12 October 2021. Dr Aly
and the Board were
represented by counsel. After hearing submissions and following a short
adjournment, the Senior Member delivered
reasons for granting a stay of the
Board’s suspension decision until the hearing and determination of Dr
Aly’s application
for review of the suspension decision. The application
for review is listed for hearing in the Tribunal on 9 March 2022. On 12
October 2021 the Senior Member made an order staying the suspension decision
until the hearing and determination of Dr Aly’s
application for review of
the suspension decision.
10 On 14 October 2021 the
Board filed an application for leave to appeal the stay order pursuant to s 148
Victorian Civil & Administrative Tribunal Act 1998 (‘VCAT
Act’). On 28 October 2021 the Board filed an amended notice of
appeal. The appeal is listed for hearing on 25
February 2022. On 15 October
2021 the Board filed a summons seeking a stay of the VCAT stay order. The
Board’s application
for a stay was heard in the Practice Court on 24
November 2021.
The Court’s power to stay the Tribunal’s stay order pending appeal
11 It is common ground that the Supreme
Court has power to order a stay of the Tribunal’s stay order. The power
arises under
Order 4.08.10 of the Supreme Court (Miscellaneous Civil
Proceedings) Rules 2018, or alternatively, the Court’s inherent
jurisdiction to preserve the subject matter of a
proceeding.[1]
12 The
principles relating to the exercise of the power to grant a stay pending an
appeal are well established. In Maher v Commonwealth Bank of Australia
(‘Maher’)[2]
Dodds-Streeton JA set out the following frequently cited summary of
principle:
The principles governing a stay of execution of judgment pending the hearing and determination of an appeal are well established.
Prima facie, a successful party is entitled to the benefit of the judgment obtained below and the presumption that the judgment is correct. The applicant for a stay therefore bears the onus of demonstrating that a stay is justified.
In Cellante and Ors v G Kallis Industries Pty Ltd (‘Cellante’), Young CJ (with whom Brooking J agreed), cited with approval the observation of Mahoney JA (with whom Moffit P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in liq) that:
...where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.
Young CJ concluded that an applicant for a stay under r 66.16 must show special or exceptional circumstances to take the case out of the general rule that an appeal does not operate as a stay.
The court has a wide discretion, which is not circumscribed by rigid rules. It should take into account all the circumstances of the case.
In Scarborough’s v Lew’s Junction Stores Pty Ltd (approved in Cellante), Adam J recognised that special circumstances might exist where a successful appellant would be deprived of the fruits of the appeal if a stay of execution were not granted. In such a case, the appeal might be rendered nugatory.
In Cellante, Young CJ stated that special circumstances would ‘exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed’.
An appeal could be rendered nugatory in that sense in a variety of ways. The test could be satisfied where a defendant appeals and there is a real risk that the plaintiff would remove the proceeds of the judgment from the jurisdiction. Similarly, special circumstances may be recognised where, for example, although the respondent is solvent, the subject matter of the appeal is, in substance, irreplaceable.
The prospect that the appeal may be rendered nugatory must be balanced against the principle that the successful party is entitled to the fruits of the judgment. A stay should not be granted unless there is at least an arguable ground of appeal, although otherwise speculation as to the ultimate prospects of success is usually inappropriate.[3]
13 Mr Pizer QC, who appeared with Ms Isobel, for the Board, submitted that the principles in Maher are applicable to the present application, subject to two qualifications. First, he submitted that the principle that a successful party is entitled to the fruits of the judgment does not apply in respect of an application for a stay of a VCAT order. In support of this submission Mr Pizer QC relied upon the following passage in the judgment of Cavanough AJA in Maund v Racing Victoria Ltd:[4]
It is possible that the nature of the jurisdiction that this Court is exercising in this proceeding, being its original jurisdiction as distinct from its appellate jurisdiction, might affect the principles relating to the grant of a stay. The general principle that a successful party ought not be deprived of the fruits of a judgment is arguably less applicable in relation to an application for judicial review, on a question of law, of an administrative decision. In this case, VCAT's decision was made in the exercise of its administrative review jurisdiction, not in the exercise of its original (inter partes) jurisdiction. The respondent at VCAT was RVL, a regulatory body. A regulatory body may not be in the same category as an ordinary private litigant for present purposes.
However, I need not finally determine on this application the nature of any differences regarding the principles applicable to a proceeding brought in the Court of Appeal under s 148 of the VCAT Act. Even if the ordinary principles relating to Rule 64.39 of the Supreme Court (General Civil Procedure) Rules 2005 do apply, whereby special or exceptional circumstances would need to be shown, then such circumstances can be found here.[5]
14 Cavanough AJA did not express any
concluded view. Rather, his Honour stated that a principle that a successful
party ought not
be deprived of the fruits of a judgment ‘is arguably less
applicable in relation to an application for judicial review, on
a question of
law, on an administrative
decision’.[6] In the present
proceeding no authority was cited in which the fruits of judgment principle has
not been applied in circumstances
where a stay order granted by VCAT has been
the subject of an application under s 148.
15 An
application for a stay order involves a matter of practice and
procedure.[7] The question of
injustice flowing from the stay order the subject of an appeal is generally a
relevant and necessary
consideration.[8] Consideration of
any injustice flowing from the stay order requires consideration of any adverse
impact upon Dr Aly if he is denied
the benefit of the stay order.
16 In Quick v Lam-Ly Pty Ltd
(‘Quick’)[9] Beach
JA, when considering an application for a stay of a stay order made in the
Tribunal, pending the hearing of an application
for leave to appeal to the Court
of Appeal, stated:
In deciding whether to order a stay of execution, the court has a wide discretion and is required to take into account all of the circumstances of the case. The party applying for a stay bears the onus of demonstrating that a stay is justified. Ordinarily, a successful party is entitled to the benefit (or fruits) of the judgment and the presumption that the judgment is correct.
As has been said many times before, the power to order a stay will generally not be exercised unless the party seeking the same demonstrates special or exceptional circumstances.
Special circumstances may be found to exist where the applicant is able to demonstrate that there is a real risk that it will not be possible to restore the applicant substantially to his or her former position if the judgment against the applicant is executed before the conclusion of the appeal. However, the prospect that the appeal may be rendered nugatory must be balanced against a principal [sic] that the successful party is entitled to the fruits of its judgment.
In order to justify the grant of a stay, an applicant should also demonstrate that there is at least an arguable ground of appeal. That said, ordinarily, the court does not have before it sufficient materials to consider, in detail, the merits of the grounds of appeal relied upon in the application for leave to appeal. In such a case, unless there is no arguable ground of appeal, or the appeal is not bona fide, the court ordinarily will focus on matters relevant to the enforcement of the judgment, rather than matters that are relevant to its validity or correctness.[10]
17 The appeal in Quick involved an
application for leave to appeal pursuant to Order 64 of the Supreme
Court (General Civil Procedure) Rules 2015. Nevertheless, the principles
set out by Beach JA are equally applicable to an application for a stay of a
VCAT order pending the
hearing of an application for leave to appeal under s 148
of the VCAT Act.
18 The second qualification to the
principles in Maher identified by Mr Pizer QC concerns the need to
protect the public interest where a practitioner seeks a stay of an order of a
disciplinary
tribunal. Mr Pizer QC relied on the judgment of Macaulay AJA in
Frugtniet v Law Institute of Victoria
Ltd.[11] His Honour stated:
An appeal does not operate as a stay of execution of the decision appealed from, but the Court of Appeal has power to grant such a stay. Generally speaking, the discretion to grant a stay should only be granted in special or exceptional circumstances. Whether special circumstances have been established commonly concerns a consideration of the prospects of success on appeal and whether there is a real risk that the appeal will be rendered nugatory in the absence of a stay.
...
However, for matters of this nature relevant considerations can be further refined. The principles governing stay applications in proceedings of this kind have been set out by the former President, Winneke P (with whom Chernov JA agreed) in Woods v The Legal Ombudsman:
Legal practitioners who seek a stay of orders made by their disciplinary Tribunal, while an appeal is pending or for any other reason, have the onus of persuading the Court that such a stay should be granted. There are a number of balancing factors which will bear upon the Court's decision as to whether such an indulgence should be afforded. The first is that disciplinary proceedings against those who hold themselves out to the public as fit to practise (in this case the solicitors) are sui generis. The discipline imposed, whilst punitive in its application to the practitioners involved, is very largely protective of the public interest. Other matters which this Court will take into account will include the seriousness of the conduct which has led to the Tribunal's decision and the prospects which the instituted appeals have of succeeding.
Whilst in the passage above his Honour was referring to disciplinary proceeding against legal practitioners, and the current proceeding concerns a non-legal practitioner representing himself to be one, the public protection purpose is nevertheless still apposite. That purpose is made clear in s 2.2.1 of the Act, setting out the purpose of the Part in which s 2.2.6 appears, namely,
To protect the public interest in the proper administration of justice by ensuring that legal work is carried out by those who are properly qualified to do so.
In summarising the matters which at least ought to be weighed in the balance in the exercise of our discretion, they are: the need to protect the public interest, the seriousness of the conduct which has led to the Tribunal’s decision, the prospects of success on appeal and the extent to which the appeal might be rendered nugatory should the stay not be granted.[12]
That is, it seems to me, a very serious incident of offending which goes to the honesty of the applicant; and given (especially) that the applicant has a trust account, does place this Court in the position of being compelled to regard the protection of the public at the forefront of its consideration of this application.[13]
20 I accept that public interest considerations are relevant to whether a stay of the VCAT order should be granted. However, it is important to have regard to the particular circumstances of the present case. Unlike Frugtniet, the present application is not made by a practitioner seeking to stay the operation of disciplinary orders made by a regulatory authority designed to protect the public from an incompetent practitioner. Rather, the Board seeks to stay the operation of an order which permits Dr Aly to continue practising as an anaesthetist pending the hearing and determination of the review of the Board’s suspension decision. There is no evidence before the Court which calls into question Dr Aly’s competence as a medical practitioner. The Board has been aware since late February 2020 that Dr Aly had been charged with rape. It did not take any steps between late February 2020 and 31 August 2021 to suspend Dr Aly’s registration on the ground that if he continued to practice he would be a threat to the public. The public interest consideration which the Board relies on in support of its application is not the public interest in protecting the public from an incompetent medical practitioner. Rather, the Board primarily relies upon the public interest in maintaining public confidence in the medical profession and its regulations.[14]
Relevant legislation
21 The Board’s suspension decision was governed by and made pursuant to s 156(1) of the National Law. This section provides as follows:
A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if—
(a) the National Board reasonably believes that—(i) because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety; or
(b) the National Board reasonably believes that—(i) the student poses a serious risk to persons because the student—
(A) has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or
(B) has, or may have, an impairment; or
(C) has, or may have, contravened a condition of the student’s registration or an undertaking given by the student to a National Board; and(ii) it is necessary to take immediate action to protect public health or safety; or
(c) the registered health practitioner’s registration was improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular; or(d) the registered health practitioner’s or student’s registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction.
(e) the National Board reasonably believes the action is otherwise in the public interest.
Example of when action may be taken in the public interest—
A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.
22 In Medical Board of Australia v Liang Joo Leow (‘Liang Joo Leow’)[15] Niall JA stated in reference to the power conferred on the Board to take immediate action under s 156(1)(e):
The Board may take immediate action under s 156(1)(e) where it reasonably believes the action is ‘otherwise in the public interest’. The word ‘otherwise’ indicates that this sub-section provides an additional and alternative source of power that is available where none of the other specific circumstances has been established. The subject matter of the relevant belief is whether the taking of immediate action is in the public interest.
The nature of ‘public interest’ determinations in the exercise of statutory powers was described as follows in O’Sullivan v Farrer:
the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’.
It has been said that the phrase ‘public interest’ lacks a fixed and precise content, and no singular construction can be afforded. In Lal, the Court of Appeal described the public interest as a ‘protean concept’, the meaning of which depended on context and not on any predetermined generic criteria.
The example attached to s 156(1)(e) provides an important aspect of the context in which the phrase public interest appears. Clause 10(c) to sch 7 requires the example to form part of the context in which the construction of the public interest falls to be determined. The context, given the example, is different to that considered in Lal and the finding in Lal that public confidence is not a mandatory consideration cannot be carried over into the National Law. However, the example does not exhaust the context for the purposes of construction.
An important part of the broader context is the nature and purpose of the power conferred by s 156 of the National Law. The power to take immediate action is, as the Board correctly submitted, designed to operate for an interim period, until an investigation or disciplinary proceeding with respect to the medical practitioner is able to be concluded. The purpose of immediate action is to put measures in place to protect against, or ameliorate, harm pending the determination. It is not an end in and of itself.
In this regard, it is relevant to identify how criminal conduct, unrelated to a practitioner’s practice, may become relevant to disciplinary proceedings under the National Law.
Criminal conduct outside of a practitioner’s practice may reflect on the question of whether the practitioner is a fit and proper person to hold registration and, if established, may lead to suspension or cancellation of the practitioner’s registration under the National Law. Of course, such a finding would require the Board, or on review the Tribunal, to make findings as to whether the conduct occurred and its relationship to fitness to practice.
In circumstances where the allegations, if substantiated, may reflect on the practitioner’s fitness to hold registration and may ultimately justify suspension or cancellation, it may be necessary, in the public interest, to take immediate action rather than await the outcome of the charges. In some cases, immediate action will be required because of a risk to patient safety or well-being. It may be possible for the Board to conclude that there is a serious risk to persons based on the material it has, even though criminal charges remain outstanding. In other cases, it may be necessary to take action to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession as a whole.
As a consequence, the Board may conclude, in those circumstances, that it is in the public interest to take immediate action in order to address the question of public confidence. The relevant public confidence to which the example is directed is confidence in the provision of services by health practitioners.[16]
23 It is common ground that the Board must establish that it has an arguable case that the decision of the Tribunal is in error and will be set aside on appeal. In support of its contention that it has an arguable case, Mr Pizer QC’s oral submissions concentrated on the Board’s contention that it was denied procedural fairness. This contention is underpinned by the Senior Member’s finding in relation to an email dated 26 August 2021 from Detective Senior Constable Berry, the informant in the criminal proceedings. The email is as follows:
Thanks for your email.
I can confirm I don’t have any concerns of Mr ALY continuing to work within the medical sector. Correct me if I am wrong, but it is unlikely Mr ALY would be consulting patients on his own and majority of time he is surrounded by other medical professionals.
Taking into account the current climate of the pandemic and the delays of many surgeries, I don’t believe it is essential to have Mr ALY’s licence suspended and I have little concerns (if any) if he continues to work.
I note that the charges Mr ALY is facing are very serious. However, as a result of the pandemic we face significant delays in his matter being listed at Court. With each lockdown, trials are pushed back even further. As Mr ALY is not on bail, he is not seen as a priority before those on bail, held in remand or child matters.
Mr ALY’s matter did not occur at work, he has not been charged with any offence whilst in execution of his duties.
Ultimately the decision as to whether Mr ALY continues to work is a matter for AHPRA and the expectations are of the community, but for Mr ALY’s licence to be suspended is not something I would be requesting.[17]
24 The Senior Member’s reasons for granting a stay included the following:
So, turning to the public interest submissions made by the parties, Mr Reid was critical of the Board for, firstly, being slow to act the second time around and, secondly, for, in effect, making two different immediate action decisions on the basis of very similar information before the Board in both of those situations. That may or may not be so, but the question for me is really what is the question of correct balance here and now in relation to public interest factors?
The circumstances are that the charges are very serious indeed. The charges will be hard fought, and the circumstances suggest a very robust defence will be mounted, including in the context, for example, of a previously consensual sexual relationship.
The conduct occurred completely outside the sphere of Dr Aly’s work, and no suggestion of any direct impact on his work arises, and all cases are different of course, and so that is the point of difference to, for example, the Milky case where the allegations arose concerning — concerned conduct in a work context.
Dr Aly, of course, has the benefit of the presumption of innocence recognised as a relevant consideration amongst others by [Niall JA] in [Liang Joo Leow]. Members of the public, properly informed, will take all of these matters into account in forming a view as to whether allowing Dr Aly to continue to practice pending the hearing of his immediate action review proceeding undermines confidence in the provision of services by doctors generally.
The opinion of the Informant in the criminal proceedings is of course not binding in any view, but it is certainly, in my view, an interesting insight into how a member of the public, well-informed about the overall circumstances of the allegations, and having a certain sense of perspective, might view the public interest, and as an example of that, the public confidence in the provision of services by doctors, and of course she had no concerns on that score.[18]
25 The Board submits that it has an
arguable case that it was denied procedural fairness because it was not given an
opportunity to
make submissions in respect of the Senior Member’s
interpretation of the Informant’s evidence. The Board submits that
the
Senior Member’s interpretation was not an obvious or natural
interpretation of the evidence of the
Informant.
26 In the Board’s amended notice of
appeal the relevant question of law and ground of appeal is as
follows:
(i) the Tribunal interpreted the evidence of the police informant as representing how a member of the public might view the public interest, and, as an example of that, how a member of the public might view the question of public confidence in the provision of services by doctors;
(ii) that interpretation was not an obvious or natural interpretation of the evidence of a police informant;
(iii) the Respondent had not suggested that the evidence be interpreted in that way; and
(iv) the Tribunal did not give the Applicant an opportunity to be heard in relation to that interpretation of the evidence?
27 The ground of appeal relating to the procedural fairness ground is as follows:
3. As to question C:(a) the Tribunal found that the opinion of the police informant, as set out in the email of 26 August 2021, provided the Tribunal with evidence of ‘how a member of the public ... might view the public interest, and as an example of that, the public confidence in the provision of services by doctors, and ... she had no concerns on that score’;
(b) the Tribunal’s interpretation of the evidence of the police informant was not an obvious or natural interpretation of that evidence;
(c) the Respondent had not suggested that the Tribunal should interpret the evidence that way;
(d) the Tribunal did not give the Applicant a reasonable opportunity to be heard in relation to that interpretation of the evidence; and
(e) as a consequence, the Applicant was denied procedural fairness.
28 In order to address the question of
whether the Board’s natural justice appeal ground is arguable it is
necessary to set
out the way in which DSC Berry’s email of 26 August
2021 was addressed by the parties before the
Tribunal.
29 Dr Aly’s solicitor, Robert Perry,
filed an affidavit sworn 8 October 2021 in support of the stay application. The
affidavit
included the following:
The informant in the criminal proceedings, Detective Senior Constable Kellie Berry has also advised that she is not requesting that Dr Aly’s registration be suspended. This has been her position from the outset. Attached here-to and marked with the letter ‘RWP8’ is an email from Detective Senior Constable Berry dated 26 August 2021.[19]
30 The written submission filed on behalf of Dr Aly in the Tribunal on 8 October 2021 included the following:
Further, it is relevant that the informant, DSC Berry, has had no objection to Dr Aly being permitted to continue to practice. He was not even placed, after being charged, on bail. He was not ever remanded. He has at all times cooperated with the investigation. These are steps and considerations open to assessment by DSC Berry who has direct knowledge of the matter. These are also matters of significant weight in the assessment of the operation of the public interest.[20]
31 The Board also filed written
submissions on 8 October 2021. DSC Berry’s email is dated 26 August 2021.
The email is not
identified in the Board’s suspension decision of 30
August 2021 as a matter which was considered by the Board. I infer that
the
Board did not have DSC Berry’s email or the submissions filed on behalf of
Dr Aly at the time of filing its submissions,
as no reference is made to either
in the Board’s written submissions dated 8 October
2021.
32 The stay application was heard in the
Tribunal on 12 October 2021. Prior to the hearing the Board had been placed
squarely on
notice of the submission advanced by Dr Aly that the position of DSC
Berry, as set out in her email of 26 August 2021, was of significant
weight in
the assessment of the public interest. Further, during the hearing of 12
October 2021 Dr Aly’s counsel referred
to the ‘not insignificant
letter of support of the Informant who does not stand in the way of Dr Aly
continuing to practice’.[21]
Counsel also referred to ‘the informant’s attitude’, together
with the diminution in Dr Aly’s income and
work opportunities and the
different decisions of the Board on the issue of suspension, as matters
justifying a
stay.[22]
33 Mr
Aly’s counsel also submitted that in considering the application for a
stay:
‘Whilst some members of the public may be alarmed, similar to the Victorian Supreme Court of Appeal’s decision in Director of Public Transport v XFJ, the issue is how would reasonable members of the public react? In my view, if equipped with all the facts including undertakings given’ — which they were in that case — ‘they would not be alarmed’.[23]
34 During the stay application hearing on 12 October 2021 counsel for the Board did not address the submission advanced on behalf of Dr Aly that DSC Berry’s email was a matter of significant weight in the assessment of the public interest. However, the Board’s written and oral submissions did address the question of how reasonable members of the public would react if Dr Aly was permitted to continue practising as an anaesthetist. The Board’s written submissions included the following:
Were a stay granted such that the Applicant be allowed to continue to practice, the gravity of the allegations against him raise the potential that public confidence in the medical profession and its regulation are likely to be undermined. Put simply, reasonable members of the public would be alarmed if an anaesthetist were allowed to continue to treat patients in circumstances where he had been committed to stand trial for rape and recklessly causing injury.[24]
35 During the hearing of the stay application the Board’s counsel submitted to the Tribunal:
I think I write in my written submissions that reasonable members of the public would be alarmed. I think in oral submissions I might take that a little further and say reasonable members of the public would be gravely concerned if an anaesthetist were allowed to continue to treat patients in circumstances where he’d been committed to stand trial for rape and recklessly causing injury.[25]
36 The Tribunal concluded that DSC Berry’s email was an:
interesting insight into how a member of the public, well-informed about the overall circumstances of the allegations, and having a certain sense of perspective, might view the public interest, and as an example of that, the public confidence in the provision of services by doctors, and of course she had no concerns on that score.[26]
37 The Board submits that it had an arguable ground of appeal that the Tribunal denied the Board procedural fairness in circumstances where:
(a) the Tribunal’s interpretation of the informant’s evidence was not an obvious or natural interpretation of the evidence;
(b) Dr Aly had not suggested that the evidence be interpreted that way; and
(c) the Tribunal did not give the Board an opportunity to be heard in relation to that interpretation of the evidence.
38 The Tribunal’s description of
DSC Berry as ‘well-informed about the overall circumstances of the
allegations’,
is an accurate statement. The reference to DSC Berry
having ‘a certain sense of perspective’, is reasonably understood
as
a reference to DSC Berry having an understanding of the conduct of the
criminal proceedings, including Dr Aly having the benefit
of a presumption of
innocence. The Tribunal’s statement that DSC Berry had no concern about
Dr Aly continuing to practise
as an anaesthetist is an accurate reflection of
the contents of her email.
39 Both parties advanced
submissions in the Tribunal addressing the question of how a reasonable member
of the public would react
if informed that Dr Aly were allowed to treat patients
in circumstances where he had been committed to stand trial on charges of
rape
and recklessly causing injury. Counsel for Dr Aly did not expressly submit that
the Tribunal should regard DSC Berry’s
email as an insight as to how a
member of the public, well informed about the overall circumstances of the
allegations against Dr
Aly, and having a certain sense of perspective, might
view the public interest. However, counsel for Dr Aly did submit that DSC
Berry’s email was of significant weight in the assessment of the public
interest. Further, Dr Aly’s counsel submitted
that the relevant public
interest consideration was not the risk to the public as a result of Dr
Aly’s practice of
medicine.[27]
40 Further,
the Senior Member sought clarification from counsel for both Dr Aly and the
Board that the suspension order had been made
under s 156(1)(e) rather than
s 156(1)(a).[28] During the
hearing, but prior to issuing his ruling, the Senior Member stated that the
question of risk to patients was ‘not
an issue here’ and
‘we’re talking about risk to the reputation of the
profession’.[29]
41 The
Senior Member clearly identified the relevant public interest consideration for
the purposes of the stay application as the
risk to the reputation of the
profession rather than a risk of patient safety. It was submitted on behalf of
Dr Aly that DSC Berry’s
email was very significant in the assessment
of the public interest. In these circumstances, is it arguable that:
(a) the Tribunal’s reliance on the email in relation to public confidence in the profession was not an obvious or natural interpretation of the email; and
(b) the Tribunal denied the Board procedural fairness by not giving it an opportunity to be heard in relation to that interpretation of the evidence?
42 The VCAT order staying the suspension decision is a matter of practice and procedure.[30] As such, ‘particular caution’ will have to be exercised when the Board’s appeal from the order is heard.[31] In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc[32] the plurality cited with approval the following passage from the judgment of Sir Frederick Jordan in Re the Will of FB Gilbert (dec):
I am of the opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interferences with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.[33]
43 The fact that the Board’s appeal
is from an order pertaining to a matter of practice and procedure is a
consideration properly
taken into account in the assessment of whether the Board
has an arguable ground of appeal. Notwithstanding the requirement when
the
appeal is heard for the exercise of particular caution, I have concluded, with
some hesitation, that the Board’s procedural
fairness ground is arguable.
It is therefore necessary to address the question of whether the Board has
demonstrated that a stay
of the Tribunal’s stay order is justified.
44 The Board submits that unless the
Tribunal’s stay order is stayed, its appeal against the stay will be
rendered nugatory.
The Board’s appeal is listed for hearing on
25 February 2022. If the VCAT order is not stayed Dr Aly will be able to
continue
practising until the hearing and determination of the appeal. It is
common ground that on 9 March 2022 Dr Aly’s application
for a review of
the suspension decision is listed for hearing in the Tribunal. Upon the
determination of the review application
the stay order will cease to operate,
irrespective of the outcome of the appeal to be heard on 26 February
2022.
45 If the stay order continues to operate
pending the hearing and determination of a successful appeal against the stay
order, the
appeal will be rendered nugatory insofar as Dr Aly will have been
practising in the intervening period. The prospect that the appeal
may be
rendered nugatory must be balanced against the principle that a successful party
is entitled to the fruits of a
judgment.[34]
46 If
the Tribunal’s stay order is stayed, the Board’s suspension decision
will preclude Dr Aly from working as a medical
practitioner. In balancing
the prospect of the Board’s appeal being rendered nugatory against Dr
Aly’s entitlement to
the benefit of the stay order, I have had regard to
the adverse consequences for Dr Aly if the VCAT order is stayed.
47 Mr Pizer QC submitted that there is no evidence
which permits an assessment of the financial impact on Dr Aly if the VCAT order
is stayed. It is common ground that as a result of the charges laid against Dr
Aly, he is not able to work in the public health
sector. However, he is able to
work in the private health sector. If the VCAT order is stayed his ability to
do so will be removed
pending the final determination of the Board’s
appeal, or alternatively, the determination of the review of the Board’s
suspension decision listed for hearing in the Tribunal on 9 March 2022.
48 Dr Aly has worked as an anaesthetist since 2004.
The VCAT stay order permits him to continue working in his chosen professional
field. This is a significant benefit which he will lose if the VCAT order is
stayed.
49 In considering an application for a
stay the Court has a wide discretion which is not circumscribed by rigid rules.
The Court
should take into account all of the circumstances of the
case.[35] A relevant circumstance
is that Dr Aly has continued to work as an anaesthetist since he self-reported
in February 2020 without
any issue having been raised as to his competence as a
practitioner. The Board conceded before the Tribunal that it is in the public
interest to have qualified practitioners remain in practice during a pandemic,
especially a specialist practitioner such as Dr
Aly.[36] In the present proceeding
the Board accepted that this is a legitimate matter to be weighed in the
assessment of the public
interest.[37]
50 It
is necessary to weigh the risk of the Board’s appeal being rendered
nugatory against the impact on Dr Aly if he is prevented
from working as an
anaesthetist. It is also appropriate in the circumstances of the present case
to have regard to the public interest
in a specialist practitioner such as Dr
Aly being available to provide services to the public. Balancing these
considerations, I
have concluded that the Board’s application to stay the
VCAT order should be dismissed. I shall provide the parties with an
opportunity
to make submissions as to the costs of the Board’s stay application.
[1] Maund v Racing Victoria Ltd [2015] VSCA 276, [31].
[2] [2008] VSCA 122 (‘Maher’).
[3] Ibid [19]–[27] (citations omitted).
[5] Ibid [35]–[36] (citations omitted).
[6] Ibid [35].
[7] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (2020) 386 ALR 632, 691–2 [341]–[345] (‘Hancock’); Joshan v Pizza Pan Group Pty Ltd [2021] NSWCA 219; (2021) 393 ALR 522, 538 [66] (‘Joshan’).
[8] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 176 (‘Adam P Brown’); Warburton Environment Inc v Vicforests [2021] VSCA 194, [112] (‘Warburton’).
[10] Ibid [27]–[30] (citations omitted).
[12] Ibid [8], [10]–[12] (citations omitted).
[13] Ibid [36].
[14] Transcript of Proceedings, T 4 L 14–16, T 5 L 4–7 (24 November 2021).
[16] Ibid [74]–[82] (citations omitted).
[17] CB459, ‘Email from Detective Senior Constable Berry’, 26 August 2021.
[18] Transcript of Proceedings, Aly v Medical Board of Australia (Victorian Civil and Administrative Tribunal, Z766/2021, Senior Member Smithers, 12 October 2021) T 56 L 16–31, T 57 L 1–27.
[19] Affidavit of Robert Perry, 8 October 2021, [25].
[20] Submission on Behalf of Dr Walid Aly Seeking a Stay of the Decision of an Immediate Action Committee of the Medical Board of Australia to Suspend Dr Aly’s Registration, 8 October 2021, [36].
[21] Transcript of Proceedings, Aly v Medical Board of Australia (Victorian Civil and Administrative Tribunal, Z766/2021, Senior Member Smithers, 12 October 2021), T 8 L 16–19.
[22] Transcript of Proceedings, Aly v Medical Board of Australia (Victorian Civil and Administrative Tribunal, Z766/2021, Senior Member Smithers, 12 October 2021) T 21 L 15–17.
[23] Transcript of Proceedings, Aly v Medical Board of Australia (Victorian Civil and Administrative Tribunal, Z766/2021, Senior Member Smithers, 12 October 2021) T 26 L 8–14.
[24] Respondent’s Outline of Submissions Opposing a Stay, 8 October 2021, [35(e)] (citations omitted).
[25] Transcript of Proceedings, Aly v Medical Board of Australia (Victorian Civil and Administrative Tribunal, Z766/2021, Senior Member Smithers, 12 October 2021) T 48 L 2–9.
[26] Transcript of Proceedings, Aly v Medical Board of Australia (Victorian Civil and Administrative Tribunal, Z766/2021, Senior Member Smithers, 12 October 2021) T 57 L 20–6.
[27] Submission on Behalf of Dr Walid Aly Seeking a Stay of the Decision of an Immediate Action Committee of the Medical Board of Australia to Suspend Dr Aly’s Registration, 8 October 2021, [32].
[28] Transcript of Proceedings, Aly v Medical Board of Australia (Victorian Civil and Administrative Tribunal, Z766/2021, Senior Member Smithers, 12 October 2021) T 6 L 21–6.
[29] Transcript of Proceedings, Aly v Medical Board of Australia (Victorian Civil and Administrative Tribunal, Z766/2021, Senior Member Smithers, 12 October 2021) T 52 L 27–31.
[30] Hancock (n 7) 691–2 [341]–[345]; Joshan (n 7) 538 [66].
[31] Adam P Brown (n 8) 177. See also Warburton (n 8) [112]; Sivanantha v Angelie Pty Ltd [2021] VSCA 333, [35].
[32] [1981] HCA 39; (1981) 148 CLR 170.
[33] Ibid 177.
[34] Maher (n 2) [27].
[35] Ibid [23].
[36] Respondent’s Outline of Submissions Opposing a Stay, 8 October 2021, [32].
[37] Transcript of Proceedings, T 35 L 14 (24 November 2021).
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