Berry v Medical Tribunal of NSW & Anor

[2001] NSWCA 132

NEW SOUTH WALES COURT OF APPEAL

CITATION:    Berry v Medical Tribunal of NSW & Anor [2001]  NSWCA 132

FILE NUMBER(S):
40896/00

HEARING DATE(S): 4 May 2001

JUDGMENT DATE:   04/05/2001

PARTIES:
Gregory Joseph Berry
(Claimant)
v
Medical Tribunal of New South Wales
(First Opponent)

New South Wales Medical Board
(Second Opponent)

JUDGMENT OF:       Handley JA Powell JA Davies AJA   

LOWER COURT JURISDICTION:   Medical Tribunal

LOWER COURT FILE NUMBER(S):           40020/98

LOWER COURT JUDICIAL OFFICER:      

COUNSEL:
C:   Mr M B Duncan
1O: Submitting Appearance
2O: Mr D Dickinson

SOLICITORS:
C:   For Self
1O: I V Knight, Crown Solicitor
2O: I V Knight, Crown Solicitor

CATCHWORDS:
Administrative Law
Medical Tribunal
whether member of Tribunal disqualified from sitting
whether member had "previously dealt with the particular matter"
meaning of "matter".

LEGISLATION CITED:
Supreme Court Act 1970, s 69
Medical Practice Act 1992, ss 92, 94A, 147
Australian Constitution, ss75, 76, 77
Judiciary Act 1903, ss 38, 39, 39B
Federal Court of Australia Act 1976, ss 20, 21, 22

DECISION:
Summons dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA      40896/00

HANDLEY JA
POWELL JA
DAVIES AJA

FRIDAY 4 MAY 2001

GREGORY JOSEPH BERRY v MEDICAL TRIBUNAL OF NEW SOUTH WALES & ANOR

JUDGMENT

1. HANDLEY JA:  I agree.

2. POWELL JA:  As do I.

3. DAVIES AJA:  This application is brought by way of summons seeking an order in the nature of certiorari in respect of a decision of the Medical Tribunal of New South Wales (“the Tribunal”) which refused the application of the claimant, Gregory Joseph Berry, to be restored to the Register of Medical Practitioners.  At the hearing, Mr Malcolm Duncan of counsel appeared for the claimant.  Mr David Dickinson of counsel appeared for the New South Wales Medical Board (“the Board”).  The Tribunal filed a submitting appearance.

4. The application is brought under s 69 of the Supreme Court Act, 1970 which provides for a summary procedure in relation to prerogative orders. Section 69 provides, inter alia:-

   (3)  It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

   (4)  For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

5. The general ambit of a writ of certiorari was described by Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v The State of South Australia (1995) 184 CLR 163 at 175-176, where their Honours said:-

   “Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal.  It is not n appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made.  Where the writ runs, it merely enables the quashing … of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error …, failure to observe some applicable requirement of procedural fairness …, fraud … and ‘error of law on the face of the record’ …  Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it …”

6. The issue has arisen by reason of the presence on the Tribunal of Dr B J Amos, who had earlier been President of the Board. It was submitted that, by reason of his presence on the Tribunal, of which the claimant was unaware at the time of the hearing, the constitution of the Tribunal infringed s 147(4) of the Medical Practice Act, 1992 (“the Act”), which provides:-

   (4)A person may be appointed to sit on the Tribunal whether or not the person is a member of the Board, but not if the person has previously dealt with the particular matter before the Tribunal in his or her capacity as such a member.

7. The material before the Court includes a note made by the Registrar of the Board, Dr A E Dix, on 18 October 1988, with respect to a telephone conversation between Dr Neil Berry, the brother of the claimant, and Dr Dix.  The note records, after referring to Dr Neil Berry, “Had spoken to B.A.”.  The initials refer to Dr Amos.  The next matter recorded in the note is “Saw David Rose”.  I would read the note as indicating that Dr Berry had spoken to Dr Amos and had seen David Rose, who I assume was an officer of the Board, concerning his brother.  The rest of the note deals with matters concerning the claimant.  Dr Amos has sworn an affidavit to the effect that he has no recollection of the conversation with Dr Neil Berry, but may have had one.  He said that, to the best of his recollection, he had never met Dr Berry and had not had a personal, social or professional relationship with him.

8. Thereafter, matters concerning the claimant came before the Complaints Screening Committee of the Board of which Dr Amos was a member.  The minutes of the Committee of 28 September 1988 record that the Registrar was directed to obtain further information and further records that Dr Amos was not present until 4.10pm.  The time at which the item was discussed is not disclosed.  The minutes of 18 October 1988 and 16 November 1988 record matters relating to the claimant and record, in each case, that Dr Amos was absent, his apology being noted.  Dr Dix has deposed that, apart from obtaining a report from Dr Jonathan Phillips with respect to the claimant, the Complaints Screening Committee took no further action.  Dr Amos has deposed that he would have received the minutes and the agenda papers for the relevant meetings of the Complaints Screening Committee, but that he has no independent recollection of any involvement in matters concerning the claimant.

9. The material before the Court shows that, in 1991, further issues arose concerning the claimant.  Those matters went to the Complaints Screening Committee of the Board.  However, Dr Amos was not then a member.  Subsequently, the claimant’s case was referred to a Professional Standards Committee for the hearing of three offences.  A Formal Complaint was approved and the claimant was referred to a Medical Tribunal.  That reference led to an order of a Medical Tribunal, which was handed down on 29 May 1996, removing the name of the claimant from the Register of Medical Practitioners in New South Wales.

10. The matter which came before the first opponent, the Tribunal, was an application made in 1999 under s 92 of the Act, in which the claimant sought to have his name restored to the Register. As I read the reasons for decision handed down by the Tribunal on 30 June 2000, the application was made not on the footing that the 1996 decision was wrong but rather that, in the light of the claimant’s current circumstances, his name should be restored to the Register. Reference was made to the fact that, over the last six to nine months prior to the hearing, the claimant had totally abstained from liquor, he had attended meetings twice weekly with Alcoholics Anonymous, he had consulted his treating psychiatrist, Dr Gertler, every two to three weeks and he had kept himself up to date with medical and psychiatric developments, both by reading relevant literature and by attending the psychiatry unit at the Royal Prince Alfred Hospital twice a week.

11. In an affidavit sworn 15 December 2000 in these proceedings, Mr Berry has deposed:-

    “I am fit to practice and my previously unrecognised cyclical Depressive Illness with OCD has led to Disability Discrimination.

    Depressive disordered judgment has been seen as Professional misconduct whilst OCD has been seen as brain damage.  Refusal of re-assessment of the above by the Medical Board misled the Medical Tribunal of NSW.”

    However, I do not understand that any issue before the Tribunal raised the question as to whether the 1996 decision was wrong because of misdiagnosis.  Indeed, the reasons for the decision of the Tribunal record that the claimant understood that his removal from the medical Register was because the undertakings he gave were repeatedly breached.

12. The word “matters” is found in ss 75, 76 and 77 of the Australian Constitution, sections dealing with the jurisdiction of the High Court of Australia and of other courts. The word is also found in ss 38 and 39 of the Judiciary Act, 1903 (Cth).  The term “matter” is used in s 39B of the Judiciary Act.  Those sections again deal with issues of jurisdiction.  The term “matter” is used in ss 20, 21 and 22 of the Federal Court of Australia Act, 1976 (Cth), which sections deal with the exercise of jurisdiction.

13. The terms “matter” and “matters” were fully considered in In Re The Judiciary Act and In Re The Navigation Act (1921) 29 CLR 257. At p 265, Knox CJ, Gavan, Duffy, Powers, Rich and Starke JJ said that the term “matter” meant “the subject matter for determination in a legal proceeding … there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court”.  At p 266, their Honours cited the view of Griffiths CJ in State of South Australia v State of Victoria (1911) 12 CLR 667, that there must be a controversy of such a nature that it could be determined on principles of law.

14. In Phillip Morris Inc v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457, Mason J cited with approval the comment of Griffiths CJ in State of South Australia v State of Victoria, at p 675, that “the word ‘matters’ was in 1900 in common use as the widest term to denote  controversies which might come before a Court of Justice”.  This view was further approved in Fencott v Muller (1983) 152 CLR 570. It was held that a matter within the jurisdiction of a Federal court may include issues arising otherwise than under Federal Law provided that the claims are dependent on transactions and facts arising out of a common substratum of facts but that Federal jurisdiction would not be attracted if the non-Federal matter was completely separate and distinct from the matter which attracted Federal jurisdiction.

15. I have mentioned these cases to emphasise that, although the term “matter”, in the context of the provisions of which I have been speaking, has been given a wide ambit, it nevertheless refers to the issue or controversy to be determined.

16. In the context of s 147(4) of the Act, the term “matter” likewise refers to the issue or issues to be decided by the tribunal. It is not concerned with facts and issues which do not form part of the controversy on which the tribunal has to rule. In s 147(4) of the Act, the word “particular” emphasises that the subsection is looking to the issue or issues to be determined by the tribunal.

17. In the present case, the particular matter before the Tribunal was the claimant’s application to be restored to the Register.  That application was made on the footing of his then alleged fitness to practice medicine.  Even had the matter before the Tribunal involved an attack upon the decision in 1996 to deregister the claimant, Dr Amos had had no prior dealing with the matter.  He was not involved in the proceedings which resulted in the deregistration.

18. For these reasons, I am satisfied that there is no basis for the application.  I would order that the summons be dismissed with costs.

19. HANDLEY JA:  The order of the Court will be as announced by Davies AJA.

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LAST UPDATED:      17/05/2001