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[2024] QCA 215
The respondent, a long-practicing dermatologist, was the subject of allegations of sexual misconduct by multiple complainants who had been his patients when they were minors. The applicant brought proceedings in QCAT for professional misconduct arising from alleged sexual abuse of these patients, and an inappropriate relationship with an adult patient, dating back decades. Some of these complaints had been the subject of unsuccessful criminal proceedings, others had not. A judicial member of QCAT ordered a stay of the proceedings in consideration of several factors, including: the time between the events alleged and the proceeding; possible inconsistency between the result of any disciplinary proceedings and criminal proceedings which had arisen on the same facts; and unfairness because of the applicant’s decision not to call complainants as witnesses or make them available for cross-examination. Delivering separate judgments, their Honours upheld the stay of proceedings in respect of some of the matters because of circumstances relating to delay, and the decision not to call the complainants as witnesses, but rejected the argument that the disciplinary proceedings threatened systemic incoherence because of the potential that they might reach a different result than any previous criminal proceedings.
Dalton JA, Fraser AJA and Brown J
8 November 2024
The respondent, a long-practicing dermatologist, was the subject of ten allegations of professional misconduct arising from complaints made by nine former patients. [115]. Those complaints allege various kinds of sexual misconduct; five of the complainants’ allegations were the subject of criminal proceedings in the District Court, four of which were permanently stayed, the respondent being acquitted in respect of the last. [116].
The respondent brought an application in QCAT for a permanent stay or dismissal of the disciplinary proceedings. [117]. He relied principally on three arguments:
(a)That a fair hearing was not possible; he claimed to have no recollection of eight of the complainants and no longer possessed records in relation to them;
(b)That it was unfair or otherwise vexatious to carry on the proceedings in circumstances in which the applicant was not going to call the complainants for cross-examination; and,
(c)That the hearing of the four allegations which correspond with the criminal proceedings permanently stayed in the District court would bring the administration of justice into disrepute. [117].
The Judicial Member in QCAT divided the complaints into three categories: complaints in respect of which criminal proceedings had been brought, complaints in respect of which no criminal charge had proceeded against the respondent, and complaints which concerned a specific complainant. [141], [143], [144].
In respect of the first category, the Member concluded that the risk of systemic incoherence justified the stay of proceedings in respect of those complaints, notwithstanding the differences between criminal and disciplinary proceedings. [141].
In respect of the second category, the Member concluded that, because of the similarity between the complaints, they would also have been stayed if brought as criminal proceedings, and therefore the same risk of systemic incoherence was engaged. [143].
In respect of the third category of allegations, the Member concluded that the inability of the respondent to cross-examine the relevant complainant would make a trial “irremediably unfair” to the respondent. [144].
The question for the Court of Appeal was whether or not it was correct to order those permanent stays. However, because the QCAT decision had been made solely on the basis of documentary evidence, the Court’s duty was to decide the whole case itself, citing the High Court decision of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 [15], [24], [26], [95] and [161]. [16]–[17], [149], [253]. That said, it was still necessary for the appellant to demonstrate error below. [14], [17], [149] and [255].
Age of the events the subject of complaint, and the application of GLJ v Trustees of the Roman Catholic Church
Dalton JA and Fraser AJA concluded that degradation in the quality of evidence over time as a factor relevant to the grant of a stay of proceedings, a factor which was limited in the reasons of the majority in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 87 ALJR 857, continued to apply as normal in other kinds of cases, the diminishing of that factor being limited by the High Court to the specific factual and statutory context which was before the High Court in that decision. [200]–[202], [260].
Risk of incoherence
Their Honours were unanimous in their disagreement with this conclusion of the Judicial Member. While there are similarities between criminal and disciplinary proceedings, they serve different purposes, have different considerations, and may conformably reach different results notwithstanding a common factual basis. QCAT failed to give proper regard to the differences in nature, procedure and purpose as between criminal and disciplinary proceedings. [32]–[34], [150]–[163], [257]–[258].
Unfairness of the proceedings
While the rules of evidence do not apply in QCAT, the right to cross-examination in this matter was necessitated by natural justice requirements. In circumstances where complainants were not available for cross-examination by the respondent, that was manifestly unfair. The prosecution of the disciplinary proceedings in relation to four of the complainants was therefore unfair and an abuse of process, warranting a permanent stay. [58], [69], [82], [93], [189], [261]–[263].
The loss of the medical records in relation to one of the other complainants meant that a fair hearing could not be held and also warranted a permanent stay. [94]–[98], [209]–[216], [264]. Although the medical records had not been retained in respect of the four remaining complainants, the loss of records did not in that case result in any hearing being necessarily unfair, the respondent’s affidavit not deposing to a medical reason which might have been shown in the records for the conduct complained of. [265], [237]–[245].
Disposition
The proceedings pertaining to four of the complainants had their stays removed. [246], [266]. Dalton JA would only have removed the stays in respect of two of the complainants’ proceedings. [113].
B Wilson of Counsel