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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Bannister v Walton
Sign in free to access the full text
Details
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.