Today’s case relates to a medical practitioner but may be of interest to paramedics or indeed to anyone who appears before a public tribunal and then finds there name, and history, is available online for all time.

In Health Care Complaints Commission v HXX (No 2) [2026] NSWCATOD 117 the applicant sought orders to remove his name from an earlier, published decision of the Civil and Administrative Tribunal. The orders were opposed by the Health Care Complaints Commission.

In that earlier decision, decided on 13 October 2023, the doctor was reprimanded over his conduct whilst performing plastic surgery. The complaint that lead to the reprimand was that the doctor was (at [85]) performing:

… a procedure where an implant for the chin of a patient, who was under anaesthetic, whilst being shaped for insert, slipped out of the surgeons’ hands and fell on the floor of the operating theatre. At the time that occurred the hospital in which the procedure took place did not have a back-up implant available to replace the one which fell to the floor. The Applicant soaked the implant in disinfectant and inserted it into the chin of the patient. That was an error which I accept the applicant lives with the memory of, daily.

The applicant informed the patient what happened, repeated the procedure at his own cost and sent the implant to pathology who confirmed there was no presence of any infection. Apart from the concern to the patient and the need for a second procedure there was no harm done to the patient and the patient was not the person who made the complaint that led to the 2023 decision.

This was the only blemish on the doctor’s record.  After nearly three years however, the matter continued to influence his practice. Patients who did a search found the decision and many chose to cancel booked procedures not only impacting the doctor but others who were going to assist in the surgery and the hospital’s ability to offer services to other patients. The doctor also led evidence as to the impact the fact that the judgment was online was having on his mental health. 

The application was to anonymise the decision on the NSW Case Law website and the summary publication by the Health Care Complaints Commission on their website. He did not seek to have the decision removed from the public record so its role in providing general deterrence to other practitioners would remain.  It was noted that the decision was on other sites such as Jade and Austlii but it was anticipated that if the ‘official’ version were amended to remove his name, they would follow ([92]). The Tribunal said (at [91]-[97]):

I am satisfied the Applicant will not in any future procedure repeat the type of conduct of which he was found guilty, by the Tribunal. I am satisfied it would not be in the public interest, particularly that cohort of patients seeking cosmetic surgery, for the Applicant to retire early from his practice. The public are entitled to regard the Applicant as a reputable and safe surgeon to undertake all aspects of his specialist medical practice including cosmetic surgery…

Part of the reason in which this case is I find “exceptional”, and out of the ordinary, is that the Applicant’s name has now been published for three years both in the form of the Tribunal decision and also reports of the outcome of the proceeding as provided by the HCCC and also the popular press. This is a different case to that where the Tribunal is asked to anonymise its decision imposing a protective order before the order is imposed or the name of the practitioner published by the Tribunal or the HCCC…

I have concluded in relation to the question posed in the introduction to this judgment, that the facts in this case establish the Applicant is not a danger to the health or safety of a patient should they engage his surgical services. I am satisfied therefore that the balance between the mandatory requirement of public/patient safety, as a paramount consideration, and the unreasonable consequence to a practitioner of the effect of publication of his name, move to the practitioner’s benefit. I am also satisfied that the unforeseen consequence to associated medical practitioners and hospital facilities which have arisen in this case (the late cancellation of planned procedures) also require consideration which weighs in favour of granting the application.

It is worth noting the applicant’s submissions (at [57]). The applicant’s lawyers wrote (references omitted):

It is well established that proceedings before the Tribunal under the National Law are conducted in public, and that this reflects the fundamental principle of open justice. The Tribunal has consistently held that “something special, exceptional, or out of the ordinary” must be established before it will depart from that principle:… 

It is equally well established that mere personal embarrassment, shame, anxiety, general depression, or the ordinary reputational and financial consequences that attend disciplinary findings are, without more, insufficient to displace the principle of open justice:…. (The Applicant) does not shy away from this threshold and accepts that the Tribunal must approach the application cautiously.

Discussion

The basic rule is that procedures in courts and tribunals are public proceedings and open to the public. I have made the point in other posts that an issue anyone has to consider if seeking to litigate their dispute is that which may otherwise have remained private, becomes very public.

In this case the doctor’s behaviour was subject to scrutiny and there was no dispute that the reprimand was appropriate. The issue is how long do these things haunt you? In this case he was able to satisfy the Tribunal that there was ‘”something special, exceptional, or out of the ordinary”’ to justify the Tribunal’s intervention to remove his name from the published decision.

What is the implication for others? I have an approach to life from my legal training, an approach some may see as cynical, but it is summed up by this adage ‘To get what you want, all you need to do is complete the appropriate form and pay the appropriate fee’.  People get hung up about rules and what they can and cannot do, but usually there is a work around and it is reflected in that statement. In this case the doctor completed the write form (the application) and paid the fees (which I’ll come back to) and got the decision he wanted.  The value of getting a lawyer involved is that they can help you fill complete the form.  They can see what they need to show the court, get the evidence together and then take the court through the application step by step to show that they have established what they need to establish to get the remedy they want. Take the judge through the process step by step to show him or her that they have the jurisdiction to make the order, that the circumstances required by law are met and bingo, you get a result. (Not always of course, but that’s the process). 

For others whose names appear on published cases (and then, sometimes, on this blog) there may be a remedy if you have the right circumstances and the money to spend on it.  

For paramedics the issues will be different. People don’t get to ‘choose’ their paramedic in the way people chose their specialist cosmetic surgeon so a name on a report will not have the same impact. And one would expect an employer would be able to assess a decision particular where the consequence was a reprimand in an otherwise unblemished career to determine whether or not a still registered paramedic should be employed.  But every case is different and depends on its own facts.

Firefighters and others who have been subject to disciplinary proceedings may well be in a position that the presence of these judgments has an ongoing impact long after the event and where the findings and decisions were relatively minor.  Could they get a similar result?  Maybe. The bar is high and no doubt Tribunals would not welcome a rush of applications to deidentify judgments, but in the right circumstances it does show that there’s no harm in asking. The only way to find out is to ‘complete the form, and pay the fee’.

Costs

Where there is some potential harm, and that is the cost. No doubt this process was expensive.  The doctor would have had to pay for his own legal costs, but he was also ordered to pay the HCCC’s costs even though he got the remedy he wanted. The Tribunal said (at [98]-[101]):

The HCCC have sought an order that the Applicant pay its’ costs. The Applicant opposes that application. The Applicant submits that the application of principle would see costs following the outcome of the proceeding. As the order sought by the Applicant was made then he has succeeded. In the ordinary circumstances of civil litigation the Applicant has a reasonable expectation that his costs would be paid by the HCCC should he be the successful party.

The HCCC, however, appear in this case as a contradictor. Without the benefit of the HCCC’s assistance the Tribunal would be left with a single party and no person or entity to assist the Tribunal in reaching a proper outcome.

In this case the assistance of the HCCC has been immeasurable. It appeared through its attorney who presented as highly skilled and appropriate in the manner in which she conducted the hearing. The application sought by the Applicant canvasses the application of principle which, in my view is still emerging. The facts in this case did not fit comfortably into any published decisions of the Tribunal. Accordingly, the Tribunal was greatly assisted by the representation provided by the HCCC.

In the circumstance I propose to grant the application of the HCCC that its’ costs be paid by the Applicant.

Conclusion

This was an interesting case that shows that even when prima facie there is nothing to be done, asking the right question can lead to the desired answer.  Readers of this blog whose names appear on published judgments should not assume that they would be successful if they applied for a similar result, but it does show that such a result is possible if you have the right evidence and are willing to spend the money on obtaining a result. 

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.