AYHT v Medical Board of SA

[2001] HCATrans 18

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A22 of 2000

B e t w e e n -

AYHT

Applicant

and

MEDICAL BOARD OF SOUTH AUSTRALIA

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 FEBRUARY 2001, AT 12.08 PM

Copyright in the High Court of Australia

MR A. J. BESANKO, QC:   If the Court pleases, I appear with my learned friend, MR A. ROSSI, for the applicant.  (instructed by Moody Rossi & Co)

MR B. M. SELWAY, QC, Solicitor-General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR J. A. POWELL, for the respondent.  (instructed by the Crown Solicitor for South Australia)

GLEESON CJ:   Yes, Mr Besanko. 

MR BESANKO:   If the Court pleases, this application raises a short but, in our submission, important point about the proper interpretation of the South Australian Medical Practitioners Act, and, in particular, section 54 of the Act.  Your Honours will find the legislative provisions set out in the reasons of the Full Court starting at page 37 and your Honours will see that the structure of section 54 is that the Board can lay a complaint before the Tribunal or it can make a decision itself to conduct an inquiry.  If it decides to conduct an inquiry, then the provisions of section 57 apply, and your Honours see section 57 on page 38 and requirements there about notice affording:

the parties a reasonable opportunity to call and give evidence . . . to make submissions –

and so on.

HAYNE J:   But the difficulty you face is, is it not, 54(4) “in the course of conducting . . . may terminate”?

MR BESANKO:   Yes.

HAYNE J:   Do you say that “in the course of . . . may terminate” does not permit what happened here?

MR BESANKO:   We do, your Honour.  We submit that ‑ ‑ ‑

HAYNE J:   What does “in the course of” relevantly mean?

MR BESANKO:   We submit, your Honour, that in the statutory context it means the Board having decided not to lay a complaint before the Tribunal under subsection (2) and, whether expressly or impliedly, deciding to conduct an inquiry and the provisions of section 57 apply, that more is required than simply opening the inquiry, a formal statement that the inquiry is opened, and then a decision made to lay a complaint.

HAYNE J:   At what point may 54(4) be engaged?

MR BESANKO:   We submit to the Court that it may well vary from case to case.  There may be cases where the Board is required to hear some evidence and then to hear from the parties as to whether a complaint should be laid to the Tribunal.  There may be other cases, your Honours, where allegations are put forward in some other form, and by “some other form” I mean other than by the complaint, and that may be an appropriate case for the Board to lay a complaint before the Tribunal.

GLEESON CJ:   Mr Besanko, is this problem of statutory construction mirrored in any other jurisdiction?

MR BESANKO:   This particular problem, your Honour, does not seem to be.

GLEESON CJ:   Let it be supposed that, against what you would say, we came to the view that the Court of Appeal in South Australia gave a construction to this statute that was both open and even sensible and it was not a problem for any other jurisdiction, why should we interfere?

MR BESANKO:   I do not think I could submit your Honours would interfere.

GLEESON CJ:   Then why is not the construction they gave to the statute practical and sensible?  Why does it produce any injustice?

MR BESANKO:   Your Honours, the Board at the stage of having received a complaint has a decision to make, whether to hear the matter itself or to lay a complaint before the Tribunal.  At that stage it may make a decision to prosecute.

GLEESON CJ:   But the Board’s powers are very limited, are they not?  They can only reprimand somebody, is that right?

MR BESANKO:   Yes.

GLEESON CJ:   So you would expect, would you not, that if the Board found that a case was of such potential seriousness as to make a reprimand an entirely inadequate sanction, they would take the course they took?

MR BESANKO:   Our submission to the Court would be that they would take that course at the section 54(2) stage, if I can put it that way, that is, after they have received the complaint but before they have given notice of an inquiry and held an inquiry.

HAYNE J:   But the only downside from your point of view is you lose a free run at the complainant.  That is putting it, shall we say, just a tad tendentiously, but that is what you are losing, is it not?

MR BESANKO:   To a point, your Honour, that is so.

HAYNE J:   What other problem do you suffer from this construction?

MR BESANKO:   Your Honour, we received the notice that the Court will have seen that is set out in the reasons of the Full Court.  We were at the inquiry.  The defendant, or the medical practitioner, was represented by counsel, was ready to proceed, and we submit the matter ought to have proceeded, at least to a point, before a decision was made to lay a complaint.  Otherwise, your Honours, what happens is that the Board is deciding whether or not to prosecute, and it does that under section 54(2).  It decides arguably, your Honours, that it will hold an inquiry, so that it will carry out a quasi‑judicial function.  It opens the inquiry and then it decides immediately that it will prosecute.  We say, your Honours, that that would be an unusual interpretation of section 54.

GLEESON CJ:   But is not the scheme of the legislation that the Board can deal with certain complaints but it is intended to deal only with those complaints for which, in the event that the complaint is made out, a reprimand would be an adequate sanction?

MR BESANKO:   Yes.

GLEESON CJ:   Why is it not open to the Board, in effect, from the first time it has an opportunity to have a look at the matter, to decide that there is a real risk that a reprimand would be a completely inadequate sanction and to then say the matter should proceed before the Tribunal?

MR BESANKO:   We could not argue with that proposition, your Honour, except that the Board had the opportunity here to consider the charge.  It had the opportunity when it received the complaint and it decided to conduct an inquiry and that was at the section 54(2) stage, that it had that opportunity.  It must consider whether “the complaint is frivolous or vexatious” or it must consider whether the complaint should go to the Tribunal.  So it had an opportunity.  Whether it took it, your Honour, or whether it had second thoughts about it, we would submit that once the inquiry is open something more is required.

GLEESON CJ:   As this Board operates in practice, Mr Besanko, who are the members of it?

MR BESANKO:   There are medical practitioners, I think, on the Board, your Honour, whereas the Tribunal consists of a District Court judge and ‑ ‑ ‑

GLEESON CJ:   Yes.  So presumably the Board has some kind of administrative backup?

MR BESANKO:   Yes, it does.

GLEESON CJ:   But it consists of medical practitioners who have something laid before them?

MR BESANKO:   Yes, your Honour.

GLEESON CJ:   By an administrator?

MR BESANKO:   The Registrar of the Board, I think, yes.

GLEESON CJ:   And then they have a look at it and they decide whether they will deal with the matter themselves or whether they will send it up to the Tribunal.  Is that not the way it works?

MR BESANKO:   That is so.  There was no evidence here, your Honour, as to what precisely the Board did between receiving the complaint and sending out the notice of inquiry, but we would say, whether there is evidence or not, either they did or they had the opportunity to consider whether to dismiss the complaint, if it was “frivolous or vexatious”, or to lay a complaint to the Tribunal.  The interpretation put on section 54(4), in effect, means that the Board really gets two opportunities, that is the practical effect of it, but without anything occurring in between without some evidence or some further allegations being put before it.

There is some unfairness in that, your Honours, because the medical practitioner receives a notice and some of the provisions of the notice are set out at page 44 of the application book, but receives a notice saying an inquiry will be held.  Now, true it is the notice refers to section 54(4) but, your Honours, one would not ordinarily expect that the inquiry would be formally open and then the decision made to refer it to the Tribunal.

GLEESON CJ:   In essence, do you want to impose a procedure under which the Board has to make an investigation of the merits of a complaint to some extent before it decides to send them up to the Tribunal?

MR BESANKO:   We do, your Honour.

HAYNE J:   In effect, committal before trial?

MR BESANKO:   That would be one thing that might be required.  I do not know that we could define in advance all of the circumstances that might be appropriate.  That may vary from case to case.  In one case the Board might be required to hear the complainant and then hear submissions from the medical practitioner as to whether or not the matter should be referred to the Tribunal.

GLEESON CJ:   I was going to ask you where you would draw the line.  Once you say the Board is obliged to embark upon a consideration of the merits of the complaint, why would it not be obliged to consider such material going to the merits of the complaint as anybody wanted to put before it?

MR BESANKO:   We would have to accept, your Honour, that section – and, in effect, that was part of the reasoning of the Full Court, that if there was an inquiry that was needed under 54(4), one really needed to go the full distance.  That is referred to in their reasons.  We accept, your Honours, that some effect would have to be given to section 54(4), but we say that that can be done by applying that section.  The circumstances will vary from case to case as to ‑ ‑ ‑

GLEESON CJ:   But the requirements of procedural fairness would then cut in, would they not?  Once you construe the legislation to say the Board has to look at the merits of the complaint, then there would be requirements of fairness, would there not, that would be invoked by a person against whom a complaint is made?

MR BESANKO:   We would submit, your Honour, that certainly there would be a requirement at that point, despite what the Full Court said, to hear from the medical practitioner as to whether the matter should be referred – or not referred, but a complaint should be laid before the Tribunal, but the requirements of the procedural fairness would not, in effect, require a hearing of the matter.  The hearing would be on the question of whether or not it ought to be referred to the Tribunal.

GLEESON CJ:   Would the Board be required to permit cross‑examination of the complainant?

MR BESANKO:   That would depend on the circumstances, in our submission, and, as I said earlier, not all of the circumstances can be predicted in advance.  The Board has ‑ ‑ ‑

HAYNE J:   That was the principal thing that was sought as a matter of fact in this case:  put up the complainant for cross‑examination before deciding whether to go forward with a charge before the Tribunal.

MR BESANKO:   Yes, your Honour.  Otherwise, your Honours, what may happen is that the Board decides to conduct an inquiry and expressly or impliedly does not exercise the subsection (2)(b) powers, opens the inquiry sitting in a quasi‑judicial capacity, and then immediately decides to consider the question of whether or not it will lay a charge before the Tribunal.  On the Full Court’s reasoning it does not need to hear from the medical practitioner at that point in time.  It simply can say, “We will halt the inquiry.  We are going off to consider whether a charge should be laid before the Tribunal”.  We respectfully submit to your Honours that that is not a tenable or sensible construction of section 54.

Your Honours, might I just identify two passages in the reasoning of the Full Court that are relevant and they are at page 42.  Both passages are on that page.  At line 6, their Honours dealing with it in the context of procedural fairness, said that the power:

may be exercised immediately after or soon after the Board has opened the inquiry.  If that were not so, each inquiry would have to proceed to completion and s 54(4) would be devoid of meaning.

Then, your Honours, at line 37 a similar point is made by the Board and we respectfully submit that that is an error.  It will depend upon each case.  The Board has a discretion under section 54(4) but it must at least go further than it did in this case.  Your Honours, we point to the wording in subsection (4) “in the course of”, the notion of an inquiry, and we submit that something more than a mere formal opening of the inquiry is sufficient.  If the Court pleases, those are our submissions.

GLEESON CJ:   Thank you, Mr Besanko.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter and the application is refused with costs.

Because of another commitment that I have, we will adjourn now until 2.15 pm.

AT 12.24 PM THE MATTER WAS CONCLUDED