Bannister v Walton

[1993] HCATrans 359

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S92 of 1993

B e t w e e n -

JOHN HERBERT BANNISTER

Applicant

and

MERRILYN WALTON

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

McHUGH J

Bannister 1 19/11/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 1993, AT 11.38 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my

learned friend, MR B.W. WALKER, for the applicant.

(instructed by Blake Dawson Waldron)

MR M.G. SEXTON: If the Court pleases, I appear with my

learned friend, MR R.K. WEAVER, for the respondent.

(instructed by H.K. Roberts, Crown Solicitor (New

South Wales))

BRENNAN J: Yes, Mr Jackson.

MR JACKSON: 

Your Honours, the issue which, it is submitted,

merits the grant of special leave in this case is
that of the standard of proof in proceedings of the

kind in question, namely, disciplinary proceedings

against a medical practitioner.

Your Honours, the standard which was in fact

applied by the Tribunal in accordance with
decisions of the Court of Appeal in New South Wales
was the balance of probabilities, bearing in mind
the seriousness of the allegations in question, to
put it shortly, what was the Briginshaw test, in

the way in which it was perceived, if I might say

so, Your Honours, before Neat v Karajan Holdings.

The contention which we seek to advance is that where the conduct said to amount to

professional misconduct is, of its very nature,

criminal, the standard of proof required should be

proof beyond reasonable doubt and it is an issue,

the resolution of which, in our favour, as I shall

seek to demonstrate, may well have produced a

different result in the proceedings.

McHUGH J: But why should there be a departure from a rule

laid down in cases like Briginshaw and McElroy's

case?

MR JACKSON:  Your Honour, what we would submit in that

regard is this, that if one takes the type of

provision in question - and could I show

Your Honours the provision first. I wonder if I

could give Your Honours copies of the relevant Act?

Can I give Your Honours copies of a document which

sets out extracts from the relevant cases and so

on? Your Honours, behind tab 1 are the relevant

provisions and Your Honours will see, in

section 32R, at page numbered 51, you will see in

subsection (1):

If the Tribunal finds the subject-matter of a

complaint made against a person to have been

provide, it may -

Bannister 19/11/93

and then various things are listed. And at the top

of the next page, one of the things that can be

done is to:

impose a fine on the person of an amount,not

exceeding $25,000 -

Now, Your Honours, what one has is a situation

where, if one is talking about civil proceedings -

these are not, in our submission, properly

classifiable as civil proceedings in the ordinary

sense, if I can put it that way, meaning by that,

proceedings in which one party is suing another to

obtain a result which is not criminal.

On the other hand, they are not, in the

strictest sense, no doubt, criminal proceedings,
except to the extent that the types of sanction
that can be imposed are, first of all, very

significant and, secondly, in the case of a fine, exactly the same as those that may be imposed in

criminal proceedings.

Now, Your Honours, the presence of the ability

to fine - I do not mean in immaterial amounts but

in very significant amounts - is a matter which is

germane to the question whether the test to be

applied is one which should be, in relation to

matters of this kind, involving a standard of proof

which is higher than the civil standard.

The second feature, we would submit,

Your Honours, which militates in favour of the

adoption of a higher standard, is the very nature

of the potential deprivations. Your Honours, it

might be right to say, if one were to adopt a,

perhaps today, somewhat a faded eloquence

of Hohfeldian analysis, in one sense, that one is

taking away a privilege but, on the other hand,

today, the privileges of that kind and rights to

practise are, in reality - or the deprivation of

them is a very significant sanction which is, in a

sense, penal in nature.

Now, Your Honours, the question whether the standard of proof should be the Briginshaw or

perhaps the Neat v Karajan Holdings' standard is,

if I could put it that way now - the question

whether it should be that or whether it should be

proof beyond reasonable doubt on issues that are of

this kind is one which, we would submit, should be

resolved by the Court in - - -

McHUGH J: But the Court has resolved it. It has said, in

the strongest terms, that there are only two
standards of proof, the civil and the criminal

standard.

Bannister	19/11/93
MR JACKSON:	Your Honour, what I am seeking to say is that in cases of this kind, it falls, really, within
neither. It is neither criminal in a strict sense,
nor is it civil in a strict sense and to adopt a
rule which simply says if it is not criminal, it
must be civil or perhaps the reverse, really does
not take into account the fact that proceedings do not always partake of a nature which can be so
simply classified into one or other arm of the
dichotomy.

BRENNAN J: If one puts them in two different

categories, namely, criminal and non-criminal, then

the dichotomy is exhausted and what is the error in
applying the Briginshaw standard of proof to the

non-criminal?

MR JACKSON:	The error, in our submission, Your Honour, is this: that in relation to the non-criminal things,
non-criminal elements of it that are sufficiently important to require the qualification to the ordinary civil standard provided for by the
Briginshaw test, the reason for applying that
qualification is because of the nature of them.

Now, if one is talking about civil proceedings

in the strictest sense, in the ordinary civil

action where, say, there is an allegation of fraud,

the result of the proceedings cannot be that there

is any deprivation of liberty, for example, or any

imposition of a fine; true, there may be a

judgment.

McHUGH J: But it may have consequences just as bad for a

professional person.	I mean, take a case like
North v Marra.	Was there not a finding of fraud

against stockbrokers in that case in a civil action

which must have had enormous consequences from

their point of view.

MR JACKSON: But, Your Honour, in the absence of a provision

that said the judgment in the civil proceedings was

itself conclusive in disciplinary proceedings, for

example, the question would still arise, "What

should be the standard of proof of the same matters

in disciplinary proceedings?" Now, Your Honour,

when one comes to that point one is in a situation
where one has to look, we would submit, at the

nature of the proceeding. Your Honour, it is

simple enough to say call them criminal and

non-criminal, but the reason for having a

classification at all is to look at the nature of

the proceedings to see what should be the standard.

McHUGH J: What about a civil action for a penalty? Again,

it is proof on the balance of probabilities, is it

not?

Bannister 4 19/11/93

MR JACKSON:  Yes, it is, Your Honour, both at common law and

under the Trade Practices Act, for example, I think. But, Your Honour, could I just say in relation to the latter of those first, the view

that the standard is civil in that regard derives

from the way in which the sections are set out and

the comparison between the penalty provisions of

that Act - civil penalty provisions perhaps I can

call them - on the one hand, and the explicit

provisions for prosecutions for criminal offences

as such, if there were no comparison to be drawn, a

very real question would arise about the standard

of proof.

McHUGH J:  Mr Jackson, do you not get into enormous

difficulty in trying to define ..... criminal do you regard every breach of the law as criminal for the

purpose of your submission?

MR JACKSON:  It must depend on the nature of it,

Your Honour. Not every aspect of professional

misconduct, at the same time, would involve

criminal conduct, of course. We do not seek to

take the proposition beyond the proposition that

where one has conduct which is, of its nature,

criminal - we would put it in the easiest way - in
the traditional sense, as it were, such as fraud,

then that attracts the higher standard of proof.

Now, Your Honour, inevitably, there will be

issues which arise at the fringe of these notions but, in our submission, that is not sufficient to

make the proposition untenable.

Your Honours, could I just say two things?

The first is that the Act pursuant to which the
present proceedings were brought, the 1938 Act, was
repealed by the 1992, the Medical Practice Act.

The repealing provision is section 195, but that

Act itself enacted provisions which, in material

respects, are not different from those in the
earlier enactment.	Your Honours, the relevant

provisions seem to be sections 60, 61, 63 and 66.

I can take Your Honours to those provisions if necessary.

Your Honours, the second thing is that we

would submit there is a significant body of opinion

in the decisions to the effect that the appropriate

standard of proof of allegations of the kind

presently in question is proof beyond reasonable

doubt. Your Honours, we have set those out in the

affidavit in support of the application.

McHUGH J:  You have authorities in your favour in United

Kingdom, have you not; Canada, New Zealand, South

Bannister 19/11/93

Australia and perhaps Mr Justice Ipp in Western

Australia?

MR JACKSON:  Yes.

McHUGH J: Victoria is against you and New South Wales is

against you.

MR JACKSON:  Yes. Your Honour, we would submit that is

something that the Court should resolve in those

circumstances. Your Honour, when I say "should

and, generally, for tribunals of this kind.

resolve", I do not mean just as an academic matter.

McHUGH J:  Can I just test this? I am sorry for

interrupting you but it just seems to me to be a

far-reaching submission. Take a case where a doctor's negligence had caused the death of a

person. Now, if it is just negligence, do you say,

"On the Briginshaw standard but, perhaps, if I

think he is really negligence, then he may be

guilty of manslaughter. I have got to change the

onus, depending upon how negligent I think he is"?

MR JACKSON:  Your Honour, one is talking about the standard,

of course.

McHUGH J:  But in that case you would not know at the start

of proceedings what standard to apply, would you?

MR JACKSON:  Your Honour, one would expect that the charge

or the nature of the complaint would be expressed

in such a way that one could identify the degree of

seriousness that was alleged. Now, if it be that

the degree of seriousness alleged, and it may be it

is alleged in the alternative, of course, or in

such a way as to encompass the different levels,

now, there would be nothing surprising if, in order

for the finding to be made of there being

negligence of, in effect, a criminal kind, before
that was made, the relevant standard was proof

beyond reasonable doubt. If that standard was not

satisfied, then one might well come to a situation

where the Tribunal was of the view that there had

been very significant negligence but perhaps not
negligence that would amount to criminal

negligence.

So, Your Honour, it is a question that would

arise but it is not, with respect, a question that

is likely to give rise to potential difficulties

that are so significant as to militate against its

adoption.

BRENNAN J:  Mr Jackson, I think I should indicate that my

view corresponds, I think, very much with what I

Bannister 6 19/11/93

take to be underlying Justice McHugh's questions to

you and that is that there is this established

dichotomy in the judgments of this Court. It may

be one which does not correspond with the views of

other courts but it has been firmly established as

the law for this country. Unless one can find some

compelling reason of principle why we depart from

that, it seems to me your argument does not get

airborne.

MR JACKSON:  Your Honour, could I say that the whole

application of what I would call the Briginshaw

test does seem to have been the subject of some, if

I can use the expressiom, "watering down" by the

Court's decision in Neat Holdings. Your Honours

will see that at tab 2.

In relation to that, the relevant passage is

extracted at the top of page 450, which is the

second passage from the top. There has always been

the case, of course, that Briginshaw has involved
the application of proof on the balance of
probabilities but it did have, if I might say so
with respect, an overlay that the seriousness of

the allegation was itself a matter which affected

the practical application of it. No doubt, that is

still the case in the light of Neat Holdings but,

what has happened with that decision, in our

submission, is that the weight to be given to the

qualification - if I can call it that way - imposed

by Briginshaw has been significantly reduced.

What that means, Your Honours, is that one is

looking at a situation now where the approach taken

in Briginshaw, and a new Briginshaw in a sense, the

view taken pursuant to Neat Holdings - so that one

is talking about the position obtaining at

present - in relation to that, Your Honour, one

needs then, that being the test, to see whether it

remains appropriate to cases of the present kind.

The decisions in the various jurisdictions to

which reference has been made indicate, we would

submit, that there is a degree of disquiet. I do

not mean that in any offensive way at all, of
course. But there is a degree of dissatisfaction
with the application of tests of that kind to the

operation of tribunals in disciplinary matters

where the practical effect of the sanction which is
imposed by them is very serious indeed. So, we

would submit, Your Honours, it is appropriate for

the Court to look to see whether the continued

application of that test to proceedings of that

kind with the continued dichotomy of the broad kind

that exists is one that should continue in cases of

this kind.

Bannister 7 19/11/93

BRENNAN J:	Mr Jackson, without seeking to truncate your submissions, to the extent to which they depend
upon this argument, you have to make the
proposition good that it is a special leave point
to consider whether Neat Holdings or Briginshaw
should have been the appropriate method. Now,
there may be some other points that you wish to
raise but so far as your argument depends on that,
it would be desirable for you to complete your argument and to indicate to us when you have
completed your argument so that we can consider
that point. Because, if you fail on that, it
would not be profitable to consider the bulk of the
evidence.

MR JACKSON: No, Your Honour, I understand that. That is

why I am dealing with the - - -

McHUGH J:  What points do you rely on? You rely on this

point.	Do you rely on the procedural fairness
point?

MR JACKSON:  Your Honour, so far as obtaining special leave

is concerned, this is the point which we submit is

the special leave point.

McHUGH J: This is the special leave point.

MR JACKSON:  Your Honour, there is additional material

referred to in the affidavits but I wanted to refer

to that, really, for the purpose of demonstrating

that this was a matter of significance in the

particular case as well.

BRENNAN J: Yes, to make it a suitable vehicle.

MR JACKSON:  Yes.

BRENNAN J: Yes. Well, I understand that. Correct me if I

am wrong, but it seems to me that your argument has

two limbs, really: one is that as a matter of

principle, disciplinary proceedings needs to be

considered by this Court in order to determine whether they fall within Briginshaw or do not.

MR JACKSON:  Your Honour, if I could put it slightly

differently: whether that test is apposite in

cases of that kind.

BRENNAN J: Yes, and that is a question of broad principle.

Now, the other question which - and the force of

this I have not personally acquired as yet - is

whether or not there are observations by other

courts of persuasive force that ought to lead this

Court to reconsider the question. Now, if there is

something on that that you think you should put in

Bannister 19/11/93

addition to what you have put, this would be the

time to do it.

MR JACKSON:  Yes, Your Honour, I propose to do that now,

actually. What I want to do is just to say this:

what Your Honours will see, in our submission, is

that there is a significant body of opinion to the

effect that the appropriate standard of proof of

allegations of the kind presently in question is

proof beyond reasonable doubt.

Your Honours, may I go to a recent decision of the Divisional Court of the Queen's Bench

Division in England, behind tab 6.	The decision is
In re A Solicitor, (1993) QB 69.	Your Honours will

see pages 81 and 82 have been extracted and

Your Honours will see there a heading:

What is the standard of proof which the

tribunal should apply?

Your Honours will see then, commencing at D a reference to Bhandari v Advocates Committee. That

contained a perhaps Delphic observation:

would be content to condemn on a mere balance

of probabilities.

Now, Your Honours will see in the next paragraph

under that, they say, "it is not altogether

helpful" what was being said then, and then,

Your Honours, between F and G, they say:

the tribunal should apply the criminal

standard of proof - - -

McHUGH J: This decision, it really highlights the

difference which seems to have existed between the

English courts and this Court now over a long

period of time. The English courts used to require

matrimonial offences to be proved beyond reasonable

doubt: adultery, for example. There was a time

when they required fraud, in civil actions, to be

proved beyond reasonable doubt. But this Court has

always set its face against it, at least since

1938.

MR JACKSON:  Your Honour, that is what we would seek to

suggest should not be the case in proceedings of

this kind. If one has to look for the analogy, one

really looks to see what can be done by the

tribunal. If one looks to see what can be done by
the tribunal in the provisions to which I referred

before, something such as the imposition of a fine, you cannot get closer to criminal proceedings than

that, really.

Bannister 9 19/11/93

McHUGH J: This would be almost the last jurisdiction I

would think you could make a useful distinction

because it seems strange that, in terms of fraud,

you must prove it beyond reasonable doubt, but if

the doctor has been guilty of professional conduct,

you do not have to prove it beyond reasonable

doubt. If he is an incompetent surgeon or he does

this or he does that in the course of his practice,

you do not have to prove it beyond reasonable doubt

and you can strike him off.	Why do you draw the
distinction?

MR JACKSON:  Your Honour, one can draw the distinction by

saying that the particular conduct is conduct which

does or does· not fall within a category to which

turpitude beyond the sanction of one's colleagues

is applied.

McHUGH J:  But he can be fined if he is negligent. He can

be fined if he fails to live up to the standards of

the profession. But you do not prove that beyond

reasonable doubt.

MR JACKSON: Well, some things, one should, Your Honour. We

would submit it must depend a little on what they

are but there is nothing generally wrong, in our

submission, with adopting the view that - - -

McHUGH J: So, it cannot be the penalty and if it is not the

penalty then I do not know what your criterion can

be.

MR JACKSON:  Can I just say this, Your Honour, that in

relation to proceedings of this kind, what we would

submit is that, prima facie - and, Your Honour, I

am conscious in saying that that we are seeking to

alter the law - the position should be that proof

would be beyond reasonable doubt in relation to

most allegations before such a tribunal.

Your Honour, it is not a very surprising thing, we

would submit, for that to be the case if it be the

situation that the sanctions that can be imposed by

great difficulty because the person who chairs the tribunal is a judge of the district court.

the tribunal are, in practical terms, very severe.

Your Honours, could I say a couple more

things? The first is this, that as the decisions

in the other Australian States have indicated,

notwithstanding the views adopted by the Court in

relation to criminal and non-criminal, the

distinction or dichotomy, the position seems to be

that doubts have yet arisen as to which is the

correct test. Now, Your Honours, we would submit

this is an appropriate case in which those doubts

Bannister 10 19/11/93

can be resolved, the application of the test to

disciplinary proceedings.

Now, of course, one way to resolve it, I

suppose, is to refuse special leave but, on the

other hand, we would submit it is a case

appropriate for the Court to consider whether there

should be any change or what the rules should be in

relation to disciplinary proceedings.

McHUGH J: But it is only South Australia that is out of

step, is it not, and perhaps Western Australia?

MR JACKSON:  Your Honour, in Queensland the view appeared to

be expressed in the observation of, I think,

Mr Justice Thomas in the passage extracted in our

affidavit where there appeared to be a view

somewhat in favour of the "beyond reasonable doubt"

rule.

McHUGH J:  I thought in Cooke's case they said Briginshaw,

but I may be wrong.

MR JACKSON:  And, Your Honour, the Full Court, I think, in

South Australia.

MCHUGH J: Yes.

MR JACKSON:  Now, Your Honours, I wanted also to refer to

Lanford v General Medical Council, which is behind

tab 5, a decision of the Privy Council. At the

bottom of page 19, the last two lines:

Mr Cox (rightly, as their Lordships

consider) submitted that the onus and standard of proof in these disciplinary proceedings and the relevant legal principles were those

applicable to a criminal trial.

Now, it is true to say that some of the

observations in that case were doubted by a later

Privy Council in McAllister v General Medical

Council, (1993) AC 388, which Your Honours will see

at tab 8, but if Your Honours look at pages 398 to

399, at page 398E the dictum is referred to and

then at page 398H Their Lordships go back to it and

Your Honours will see that at about the sixth line

on page 399, they say is should not:

be treated as having universal application in

all cases arising before the committee. In
charges brought against a doctor where the

events giving rise to the charges would also

found serious criminal charges it may be

appropriate -

but -

Bannister 11 19/11/93

there will be many cases, where the

charges ..... could not be the subject of serious or any criminal charges at all.

Now, Your Honours, could I just say this, that

the issue is one which arises in all cases where

professional people are charged with professional

misconduct. I use that term generically. Even if

it can be regarded as arising only in New South

Wales, it is likely to be a relatively frequent

occurrence and of such importance, we would submit,

to the individuals concerned that it is a case

where special leave should be granted.

Your Honours, could I just say this, that the

resolution of the issue is not academic, we would
submit, for two reasons. First, there was a
considerable body of evidence to which the tribunal
did not refer in its reasons which was capable of
giving rise to a reasonable doubt and would have to

be taken into account on a reconsideration by the

tribunal. That is summarized at page 209 of the

application book, paragraph 3.17 of Mr Pavlakis'

affidavit. Your Honours, I do not propose to go

into the detail of that unless Your Honours want me

to.

McHUGH J: 

Can I just ask you, in relation to that, was not the answer made that the case - your client said

that he checked the charges and he checked the

visits of Deutsch and that was the real issue at
the trial?

MR JACKSON: 

The evidence at paragraph 3.17 is evidence

which, in our submission, would have corroborated
views of that kind.

BRENNAN J: 

We need not trouble you, Mr Sexton.

MR SEXTON: If Your Honour pleases. 

BRENNAN J: Counsel bases this application for special leave

to appeal on the submission that it is appropriate
for this Court to give further consideration to the

question whether the standard of proof prescribed

by this Court in Briginshaw v. Briginshaw (1938)

60 C.L.R. 336 should be applied to disciplinary

cases arising under section 32R of the Medical

Practitioners Act 1938 (N.S.W.)

The Court is of the opinion that there are not

sufficient grounds shown to justify the grant of

special leave for that purpose. Accordingly,

special leave will be refused.

MR SEXTON:  We ask for costs, Your Honour.

Bannister 12 19/11/93

MR JACKSON: There is nothing we can say, Your Honour.

BRENNAN J: It will be refused with costs.

AT 12.10 PM THE MATTER WAS ADJOURNED SINE DIE

Bannister 13 19/11/93