Bannister v Walton

Case [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…

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AGLC
Bannister v Walton [1993] HCATrans 359
Case
[1993] HCATrans 359
Decision Date

CaseChat Overview and Summary

John Herbert Bannister (the applicant) sought special leave to appeal to the High Court of Australia against a decision concerning disciplinary proceedings against a medical practitioner. The respondent was represented by the Crown Solicitor. The core of the dispute revolved around the appropriate standard of proof to be applied in such disciplinary proceedings.

The legal issue before the High Court was whether, in disciplinary proceedings against a medical practitioner where the conduct alleged to constitute professional misconduct is inherently criminal in nature, the standard of proof should be beyond reasonable doubt, rather than the balance of probabilities. The applicant contended that the seriousness of the allegations and the potential sanctions, including significant fines, warranted a higher standard of proof than that typically applied in civil matters.

The applicant argued that while these proceedings were not strictly criminal, the nature of the potential deprivations and the possibility of imposing fines identical to those in criminal proceedings suggested that a standard of proof higher than the civil standard was appropriate. This was contrasted with the standard applied by the Tribunal, which was the balance of probabilities, as interpreted under the *Briginshaw* test, even considering the gravity of the allegations. The applicant's submission was that a departure from the usual civil standard was justified in these circumstances, potentially leading to a different outcome.

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