Health Care Complaints Commission v Cheng (No 1) [2016] NSWCATOD 61

Health Care Complaints Commission v Cheng (No 1) [2016] NSWCATOD 61

The application was dismissed because the respondent did not establish special or exceptional circumstances sufficient to displace the principle of open justice. The suggested prejudice to a fair trial was remote because criminal proceedings had not been instituted, judicial officers can manage criminal trials, jury inquiries are restricted by s68C of the Jury Act, 1977, and criminal proceedings involve different procedures and burdens of proof. Reputational damage from publication of defended disciplinary allegations is an ordinary consequence of open justice and did not justify an interim non-publication order.

Jurisdiction
Australia
Judgment Date
16 May 2016
Procedural Posture
Health Practitioner Disciplinary Complaint / Application by the Respondent for an Interim Non Publication Order Prohibiting Publication of His Name Pending Final Determination
Outcome
Application for interim non-publication order dismissed.
Legal Topics
['non Publication Orders' 'open Justice' 'fair Trial' 'reputational Damage' 'allegations of Unsatisfactory Professional Conduct and Professional Misconduct']
['administrative Law' 'health Practitioner Regulation' 'professional Discipline'] ['non Publication Orders' 'open Justice' 'fair Trial' 'reputational Damage' 'allegations of Unsatisfactory Professional Conduct and Professional Misconduct']

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Procedural Posture

Health Practitioner Disciplinary Complaint / Application by the Respondent for an Interim Non Publication Order Prohibiting Publication of His Name Pending Final Determination

Legal Issues

  1. 1 ["Whether the Tribunal should make an interim non-publication order prohibiting publication of the respondent's name pending final determination." "Whether possible future criminal proceedings created a sufficient risk of prejudice to the respondent's right to a fair trial." "Whether alleged irreparable reputational damage from publication of the respondent's identity justified a non-publication order."]

Ratio Decidendi

The application was dismissed because the respondent did not establish special or exceptional circumstances sufficient to displace the principle of open justice. The suggested prejudice to a fair trial was remote because criminal proceedings had not been instituted, judicial officers can manage criminal trials, jury inquiries are restricted by s68C of the Jury Act, 1977, and criminal proceedings involve different procedures and burdens of proof. Reputational damage from publication of defended disciplinary allegations is an ordinary consequence of open justice and did not justify an interim non-publication order.

Court Disposition

Application for interim non-publication order dismissed.

Orders

  • ["The respondent's application for an interim non-publication order prohibiting publication of his name pending final determination is dismissed." 'A non-publication order applies in relation to anything that might identify the patients of the respondent.']