Chen v Chiropractors Registration Board of Victoria
[2000] VSC 480
•21 November 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 6733 of 2000
| HENRY CHEN | Plaintiff |
| v. | |
| CHIROPRACTORS REGISTRATION BOARD OF VICTORIA | Defendant |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 NOVEMBER 2000 | |
DATE OF JUDGMENT: | 21 NOVEMBER 2000 | |
CASE MAY BE CITED AS: | CHEN v. CHIROPRACTORS REGISTRATION BOARD OF VICTORIA | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 480 | |
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CATCHWORDS: Application for leave to appeal from decision of Victorian Civil administrative Tribunal – Power of Tribunal to investigate conduct of chiropractor which occurred before Chiropractors Registration Act 1996 passed – Chiropractors and Osteopaths Act 1978, s.13A – Chiropractors Registration Act 1996, ss.3, 46 and 93 – Unprofessional conduct – Application refused.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. A. Albert | Hughes Watson Marks Kennedy |
| For the Defendant | Mr. R. Maidment | Minter Ellison |
HIS HONOUR:
I have before me an application for an extension of time within which the plaintiff may file an application in the Court for leave to appeal against orders of the Victorian Civil Administrative Tribunal made on 27 July 2000 and if that application is successful, an application for leave to appeal against the orders.
I have heard the two applications together because if the plaintiff is unable to satisfy me that it is arguable that in arriving at the decision it did, the Tribunal made an error of law, then it would be pointless to extend the time for making an application for leave to appeal.
The orders made by the Tribunal on 27 July 2000 confirmed previous findings of a panel of the Tribunal made on 10 September 1998 that the plaintiff had engaged in unprofessional conduct.
The Tribunal suspended the plaintiff's registration for a period of five months from 1 September 2000 until 31 January 2001 and imposed a condition on the plaintiff that for five years he make available to the Tribunal his patient files for an annual audit.
The grounds of appeal as set out in the plaintiff's notice of appeal read:
"The Plaintiff seeks to appeal the VCAT orders suspending his registration and imposing a condition on his registration as they are based on findings of 'unprofessional conduct' in which VCAT made errors of law, namely:
1.VCAT erred in finding that the Plaintiff was guilty of allegations of 'unprofessional conduct' as defined by the CRA when all of the impugned conduct occurred prior to the relevant provisions of the CRA coming into operation on 1/7/97.
2.VCAT erred in finding that the meaning of 'unprofessional conduct' in s.13A(4)(b) of the Chiropractors and Osteopaths Act 1978 was encompassed by paragraphs (a) or (b) of the definition of 'unprofessional conduct' in s.3 CRA."
The point being made by the plaintiff is that the conduct complained of and which was the subject of the Tribunal's findings and determination occurred prior to the coming into operation of the Chiropractors Registration Act 1996 on 1 July 1997, and that the Tribunal had no jurisdiction to hear and determine the complaints.
On 29 September 1999 a differently constituted Tribunal had dealt with and ruled upon that submission. It concluded that the Tribunal did have the necessary jurisdiction to deal with the complaints and then referred the complaints to the Tribunal which ultimately made the orders on 27 July 2000 and from which the plaintiff now seeks leave to appeal.
Normally it is unwise for a Judge of the Court to give reasons for granting or refusing leave to appeal.
The reasons for not doing so were stated by Fullagar, J. in Leighton Contractors Pty. Ltd. v. Kilpatrick Green Pty. Ltd.[1].
"I have spoken above of a yielding to temptation, and it is of course a natural and instinctive wish of judges to give reasons for their decisions, so that their decisions may be seen to be the rational dictate of the law rather than the result of their own individual opinions or prejudices. But in this particular field, paradoxically, the giving of reasons may be seen to be decidedly inimical, in the long run, to the doing of justice between the parties, and especially so in modern times when every utterance of a judge is likely to be reported, or misreported in some book or self-styled law report. If reasons are given, they will be seized upon as the laying down and application of a principle, rather than merely the application, to all the circumstances of the individual case, of a wide judicial discretion. After the first half dozen reported decisions the discretion will begin to take on limitations and boundaries, and in the end there will be no discretion but only a complicated set of hard and fast rules of law manufactured entirely by the judiciary, although with the assistance of the reporters and commentators. Compare Mallet v. Mallet (1984) 156 CLR 605 at pp.608-609, per Gibbs CJ.
In Antaios Compania Naviera S.A. v. Salen Rederierna A.B. (The Antaios) [1985] 1 AC 191 Lord Diplock, with whom the other Law Lords agreed, re-affirmed the guidelines given in The Nema, but he also added that a judge should not give reasons for granting or refusing leave to appeal from the arbitrator to the court, and with this addendum I would respectfully agree for reasons adumbrated above, although the addendum itself cannot be viewed as binding. I understand that it has been the general practice in Victoria not to give reasons for refusing leave to appeal, but if this is not the general practice then it ought to be: see e.g. Karenlee [1988] VR 614 at p.620. It is, I think, the more usual practice of our Full Court itself not to give reasons for refusing leave to appeal to this court, and in the past it certainly used to be the more general practice of the High Court not to give reasons for refusing special leave to appeal to the High Court."
[1](1992) 2 V.R. 505
Of course there may be cases in which it is appropriate for the Court to give reasons for granting leave to appeal, for example where a Judge directs that the appeal be heard instanter and then allows the appeal. See for example Beneys and Another v. Delafotis and Another (No. 1)[2].
[2][1996] V.R. 695
In the present case, however, and because of the seeming conflict between the decision of Eames, J. in McGrath v. The Medical Practitioners Board of Victoria[3] and McDonald, J. in Q.X. v. The Medical Practitioners Board of Victoria[4] there is one aspect of the application for leave to appeal I wish to discuss.
[3](unreported 1 November 1996)
[4](unreported 11 June 1997)
Section 13A of the Chiropractors and Osteopaths Act 1978 provides so far as is relevant:
"13A. Proceedings for unprofessional conduct
…
(4)If, as a result of an inquiry under this section, the Board finds that a chiropractor and osteopath –
…
(b)has been guilty in Victoria or elsewhere of unprofessional conduct; or
…
the Board shall do one or more of the following:
(e) Reprimand the person;
(f)Impose in relation to the person's practice as a chiropractor and osteopath such conditions, limitations or restrictions as the Board determines;
(g) Cancel or suspend the registration of the person;
(h)If the Board finds that the person has been guilty of unprofessional conduct, in addition to or in substitution for any of the foregoing, impose a fine not exceeding 100 penalty units."
The 1978 Act was repealed by the Chiropractors Registration Act 1996 which came into operation on 1 July 1997.
The sub-sections of s.46 of the 1996 Act relevant for present purposes read:
"46. Findings and determinations of a formal hearing into conduct
(1)After considering all the submissions made to a formal hearing into the professional conduct of a registered chiropractor the panel may find that –
(a)the chiropractor has, whether by act or omission, engaged in unprofessional conduct of a serious nature; or
(b)the chiropractor has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature; or
(c)the chiropractor has not engaged in unprofessional conduct.
(2)If the panel finds that the chiropractor has, whether by act or omission, engaged in unprofessional conduct of a serious nature, the panel may make one or more of the following determinations –
(a) require the chiropractor to undergo counselling;
(b) caution the chiropractor;
(c) reprimand the chiropractor;
(d)require the chiropractor to undertake further education of the kind stated in the determination and to complete it within the period specified in the determination;
(e)impose conditions, limitations or restrictions on the registration of the chiropractor;
(f)impose a fine on the chiropractor of not more than $2000;
(g)suspend the registration of the chiropractor for the period specified in the determination;
(h) cancel the registration of the chiropractor."
Section 93 of the 1996 Act so far as is relevant reads:
"93. Application of this Act to conduct occurring before commencement of this Act
(1)In the case of activities of a person who is deemed by section 94 to be a registered chiropractor under this Act which occurred before the commencement of Part 3 and in respect of which no proceedings have been commenced under the old Act, this Act applies to the extent that there was power to conduct an inquiry under section 13 or 13A of the old Act into those activities.
(2)Any determination or outcome of a hearing into those activities must be one which would have been available as a finding or decision in an inquiry by the Board under the old Act."
In its decision of 1 March 2000 the Tribunal said:
"72.We find that the Applicant has engaged in unprofessional conduct. We further find that that conduct constitutes 'unprofessional conduct' as that expression was used in section 13A of the 1978 Act, and also constitutes 'unprofessional conduct of a serious nature' as that expression is used in the 1996 Act."
In my opinion the Tribunal clearly had the jurisdiction to make that finding.
Section 13A of the 1978 Act gave the Chiropractors Registration Board power to hold an inquiry into the activities of a chiropractor and in an appropriate case to find that chiropractor guilty of unprofessional conduct.
If the Board did find a chiropractor guilty of unprofessional conduct it then had the power to suspend the registration of the person and impose in relation to the person's practice as a chiropractor such conditions, limitations or restrictions as the Board determined.
By virtue of the provisions of s.93 of the 1996 Act the Board and thus the Tribunal, has the power to conduct the same inquiry, to make the same finding and impose the same penalty, even though the conduct in respect of which the finding is made occurred before the coming into operation of the 1996 Act.
It was argued by counsel for the plaintiff that there is a relevant difference between the unprofessional conduct referred to in s.13A of the 1978 Act and unprofessional conduct as defined in the 1996 Act.
The definition of unprofessional conduct which appears in s.3 of the 1996 Act reads:
" 'unprofessional conduct' means all or any of the following –
(a)professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered chiropractor;
(b)professional conduct which is of a lesser standard than that which might reasonably be expected of a chiropractor by his or her peers;
(c) professional misconduct;
(d) infamous conduct in a professional respect;
(e)providing a person with health services of a kind that is excessive, unnecessary or not reasonably required for that person's well-being;
(f)influencing or attempting to influence the conduct of a chiropractic practice in such a way that patient care may be compromised;
(g)the failure to act as a chiropractor when required under an Act or regulations to do so;
(h) a finding of guilt of –
(i)an indictable offence in Victoria, or an equivalent offence in another jurisdiction; or
(ii)an offence where the chiropractor's ability to continue to practise is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the chiropractor to continue to practise because of the finding of guilt; or
(iii) an offence under this Act or the regulations; or
(iv)an offence as a chiropractor under any other Act or regulations."
Counsel's contention was that the meaning to be given to unprofessional conduct, which is not defined in the 1978 Act, is its common law meaning as spelled out by the Full Court of South Australia in In re R a Practitioner of the Supreme Court[5] and In the Matter of a Practitioner[6].
[5](1927) S.A.S.R. 58
[6](1975) 12 S.A.S.R. 166
In the 1927 case the Court said in its joint judgment at p.60:
"In our view 'unprofessional conduct' is not necessarily limited to conduct which is 'disgraceful or dishonourable' in the ordinary sense of those terms. It includes, we think, conduct which may be reasonably held to violate the standard of professional conduct observed or approved of by members of the profession of good repute and competency."
In the 1975 case Bray, C.J. whose judgment was concurred with by Zelling and Jacobs, JJ. said:
"I emphasise that we are not here concerned with legal or equitable obligations or with the actual course of events after the time at which those disclosures should have been made. We are concerned with what sort of conduct would have been observed or approved of by a member of the profession of good repute and competency at the relevant time."
See also English v. Legal Practitioners Complaints Committee[7].
[7](1986) 41 S.A.S.R. 217
In my opinion it was open to the Board and thus the Tribunal to find that any conduct of the plaintiff which came within the category of the conduct specified in the definition of unprofessional conduct in s.3 of the 1996 Act came within the common law definition of unprofessional conduct and was therefore covered by s.13A of the 1978 Act.
In this case I have considered the reasons for decision of both the Tribunal which ruled on the jurisdictional issue and the Tribunal which heard and determined the complaints made against the plaintiff.
Having done that, and having considered counsel's submissions, I am not satisfied that it is arguable that either Tribunal made an error of law in the matter.
Both the application for an extension of time and the application for leave to appeal will be dismissed.
I order that the plaintiff pay the defendant's costs of the application including any reserved costs.
As the plaintiff has been suspended from practice since 5 October 2000 I order that the period of the suspension imposed upon him by the Tribunal commence as from that date.
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