Coroneos v Medical Board of Queensland

[2003] HCATrans 482

[2003] HCATrans 482

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B59 of 2003

B e t w e e n -

MICHAEL CORONEOS

Applicant

and

THE MEDICAL BOARD OF QUEENSLAND

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 NOVEMBER 2003, AT 1.19 PM

Copyright in the High Court of Australia

MR N.M. COOKE, QC:   If your Honours please, I appear with my learned friend, MR S. DI CARLO, for the applicant.  (instructed by Brett Smith & Co)

MR W. SOFRONOFF, QC:   If your Honours please, I appear with my learned friend, MR P.A. FREEBURN, for the respondent.  (instructed by Minter Ellison)

HAYNE J:   Yes, Mr Cooke.

MR COOKE:   Your Honours, the point is a short one. Section 348 of the Health Practitioners (Professional Standards) Act, which is reproduced at page 210 of the application book, allows an appeal against the decision of the Health Practitioners Tribunal “only on a question of law”.  The notice of appeal identified questions of law, in our submission.  At page 124 of the application book, ground 1 was that the findings were:

so unreasonable as to indicate an error in law.

That, in our submission, would fall within the Wednesbury principle.  Ground 2, which is also at page 124:

The Tribunal’s decision as to penalty is excessive and is such as to indicate an error in law.

That, your Honours, would fall within the principle in Dinsdale v The Queen. 

Ground 12, which appears at page 126 of the application book, they failed to base the decision on unchallenged evidence about competency to practise.  That raises a question of law as to whether the Tribunal can impose conditions, and in what circumstances, on a practitioner who is otherwise competent to practise.  Ground 13:

no power in law to impose the conditions –

and that, of course, raises a question of construction of the Act, which, in our submission, would be a question of law.  Then ground 14, at page 126 of the application book, is that:

contrary to the evidence, was not founded on any rational basis that such conditions were necessary and was manifestly unreasonable –

which, again, in our submission, would raise the Wednesbury principle.

When the appeal was called on in the Court of Appeal, the court immediately questioned the statement of grounds of appeal in questions of law.  It is, in our submission, clear, when one reads the transcript of the argument in the Court of Appeal, that counsel for the appellant was not invited to address the court on the merits of the appeal and the only question that was being addressed was what the presiding judge, Justice Davies, referred to as the “threshold” question of identifying whether there were questions of law raised in the appeal.

If I can take the court briefly, and quickly, to page 170 of the application book and to the exchange which occurred at lines 25 to 35, Justice Davies asked me:

Would you then identify for us the questions of law on which you appeal?

And I said:

the question of law with regard to the sentence is that it is so manifestly excessive as to indicate an error in the sentencing process.

His Honour said:

No, the fact that it’s manifestly excessive isn’t an error of law.

On the next page, page 171 of the application book, at line 10:

We know what the facts are.  It’s a question of what the law – what the error of law is, Mr Cooke.  That’s the one – the point that seems to be missing so far.  I find great difficulty in seeing any question of law involved in this appeal to this Court.

At page 172, line 5, his Honour said:

But just tell us – just identify now what the questions of law are . . . You really can’t come to this Court until you’ve done that and satisfied us of that.  It’s really a threshold question –

At page 173, line 15, his Honour said:

I thought we might have seen it before we got here, Mr Cooke, because it’s a question of jurisdiction of the Court.

I expressed a view that I thought they were obvious; it was not obvious to his Honour.  At line 30, his Honour again said:

But the real question is can you tell us what the question of law is?

Page 176 of the application book, line 15:

I’m just trying to identify the question in law.

And then at line 25:

we haven’t identified the question in law yet.  I thought you were coming to identify a question of law?

At page 177, line 20, his Honour said:

look we’re going into factual questions here.  I thought we were identifying a question of law.

And at 181, at line 30, his Honour said:

Are we just at the moment identifying the questions of law, so perhaps we should just stay with that at the moment.

At page 184, line 5:

I’m just asking is that it in terms of questions of law?

And his Honour said:

No, no.  In relation to questions of law.  I really want to know – what we have to do, Mr Cooke, is to identify the question or questions of law and then this Court will decide whether in fact what you’ve identified are questions of law and consequently whether in fact this Court has jurisdiction to hear this appeal.

At page 186, line 5, his Honour said:

Any other questions of law?

Page 188, line 10, his Honour said:

Anything else? . . . On questions of law?

And I said, “No”.  His Honour then said:

We might hear Mr Freeburn . . . Mr Freeburn?  On the questions whether in fact the appellant has identified any questions of law.

Then there is a discussion with Mr Freeburn about that question, as to whether we have identified questions of law.  At page 197 ‑ ‑ ‑

HAYNE J:   Well, just interrupting you there.  At 188, in the discussion with Mr Freeburn, the presiding judge says, at line 28, that there were ten points that had been raised – ten specific points and Wednesbury unreasonableness – and then what follows appears to be Mr Freeburn dealing with those points, both as to whether they are an error of law and what answer was to be made to them.  Is that right?

MR COOKE:   No, your Honour.  In my submission, what he was being asked to do was to say whether the items which we had identified did, in fact, amount to errors of law.

HAYNE J:   I was not asking you about what the judge asked him to do, I was asking you what he did.  Mr Freeburn went on to deal with the substance, did he not?

MR COOKE:   Not entirely, your Honour, with respect, not entirely.  At page 197, when I was invited to say something in reply, his Honour had a discussion with me about the cases that I have to say that the penalty was “out of kilter” so as to indicate an error of law in the sentencing process, and his Honour invited me simply to give him the names of the cases.  There was no argument about the cases or the way in which those cases were providing some analogy to look at the severity of the sentence which the Tribunal imposed in this particular case.  There was no discussion about the case at all.  The court simply invited me to give them the names of the cases that I was going to rely on for that proposition.

HAYNE J:   What are we to make of what appears at page 197, lines 17 and 18? 

that depends upon your other submissions being correct that it’s out of kilter because of the matters that you’ve dealt with specifically.

MR COOKE:   Yes, well, your Honour, what his Honour teased out of me, I suppose, was to give particulars of the way in which we suggested that the trial judge had misdirected his discretion in regard to sentencing.  Those, with respect, could really be simply regarded as particulars of the general ground which appeared in the grounds of appeal.  That seemed to be a proposition which the Court accepted in the Dinsdale Case, that where you have this general proposition that the sentence is so excessive as to indicate an error of law, but you cannot put your finger on which particular aspect of the sentencing process went wrong – but his Honour pressed us to, in fact, identify other things, which we did.

We gave those other nine points, where we said her Honour did not take these things into account or did not give them sufficient weight, but they are, with respect, simply particulars of the general proposition that where you do not know how the discretion went wrong, but the penalty itself is so excessive as to suggest, in its own right, some error in the sentencing procedure ‑ ‑ ‑

HAYNE J:   In addition to the contention of manifest excess, particularised, as you have said, by reference to nine, perhaps ten, items, was any other error of law assigned?

MR COOKE:   Yes, your Honour.  There were two aspects of the case.  One was the penalty which the Tribunal imposed for breach of the conditions and the other was the appeal against the extension of conditions for an additional three year period.  In respect of that, the errors of law identified were those that I have identified in the grounds of appeal, namely, that there was no power in the Tribunal to impose conditions on a practitioner who was competent to practise.  That, with respect, is an error of law in respect of that aspect, which the court did not – in this exchange in the Court of Appeal that we are looking at, the court really did not explore that ground at all.

HAYNE J:   Where do I find in the judgment of the Court of Appeal consideration of that aspect of the matter?

MR COOKE:   Your Honour, at page 140 of the application book, at line 5:

To a large extent it appears that the Tribunal considered that the remaining conditions should continue to apply partly because of the defiant attitude the appellant had displayed to date in refusing to comply with conditions, some at least of which were not particularly onerous.

HAYNE J:   Yes, I understand that, but the point you were making as a point of law was, there was no power to impose.  Is that right?

MR COOKE:   Yes.

HAYNE J:   That is dealt with in paragraph [45].  Where do I find in the transcript your discussion of absence of power?

MR COOKE:   Your Honour, I do not think, with respect, that it was discussed in any detail at all.  The court was concerned mainly with the first ground, that is, the excessive nature of the penalty.  With regard to the second aspect, there was some confusion about that, as to whether that was a separate ground or what we were talking about in respect of that, but there was no detailed discussion of that ground.  It was simply mentioned that that ground of appeal was in the appeal book and I did mention that again, I think, in my reply, page 199. 

In the judgment which they ultimately delivered, they did not address those questions, as I have seen from page 140.  What they did was to simply say, well, the conditions were not particularly onerous and because he had exhibited – the judge had found he was defiant with regard to the compliance with the conditions, on which she had imposed a three month suspension, she could justify the imposition of these conditions for another three years after the suspension had been completed.  But there was no discussion at all of the grounds of appeal which were mentioned. 

At page 199 of the transcript, at the end of the discussion in the Court of Appeal his Honour concluded by saying:

We’ll consider the question and we’d like a transcript of the oral argument.

Your Honour, if you read that statement of his Honour in concluding that “We’ll consider the question” in conjunction with what his Honour said at page 184 of the application book, at line 10, that they were identifying “questions of law” which depends on whether the court “has jurisdiction to hear this appeal”, the question that the court reserved and was reserving was simply the jurisdictional question as to whether we had identified, in the notice of appeal or in the oral exchange, grounds of questions of law which would give the court jurisdiction to hear the appeal.

Your Honours, after the conclusion of the court, I referred the court to the Dinsdale decision and, of course, the Court of Appeal accepted that that was a point of law and a question of law in the judgment which they gave.  They accepted that was a point of law.  They inferentially must have accepted that there were other points of law, because they dealt with the other grounds dealing with the imposition of the additional conditions for the additional period of three years.  So, after the argument, they must have accepted that there were points of law raised in the appeal and they decided the merits of the appeal then, without having any further argument.

Your Honour, I might say, with regard to the comparability of the cases to which I referred, they simply distinguished those by saying they were not comparable because they were sexual cases.  With respect, that is perfectly true, but the point being made was that you can draw some analogy from the penalties which the Tribunal imposed in those sorts of cases and look at the circumstances of the breach of condition in this particular case – a condition which, in the end, was not justifiable or

sustainable – so that you can compare the severity in those sorts of cases, which are much more concerned with the protection of the public and the patients than with this question of what the Tribunal said was some defiance with the imposition of the conditions.

Your Honours, in our submission, the Court of Appeal did not allow the appellant to advance their arguments on the merits of the appeal, but simply on this question of whether we have identified the questions of law.  In our submission, we certainly understood, from the exchange we were having with the Court of Appeal, that all we were being invited to do was to address this threshold question – and not even to argue the points of law, but simply to identify them in terms of some identifiable language which might then be tested to see whether that raises a question of law.

Your Honours, the important question of public importance, in our submission, is that by denying us natural justice in the hearing of an appeal the Court of Appeal has really changed the practice of hearing appeals in Queensland without any change in the Rules or any change in the practice directions.  The practice directions here require an outline and an outline only of the argument.  There was no question that oral argument was not expected to take place in respect of the appeal, but that was denied by the course of action which the Appeal Court took. 

If this decision is allowed to stand, that may become a habit, and it would change the way in which appeals are heard in Queensland, without, as I say, any change in the Rules or any prior indication to the parties that their appeals are to be dealt with by written arguments and written arguments only.  As your Honour will appreciate, if the appeals are to be heard by way of written argument, then the written arguments would need to be more extensive and more complete than simply the outline which is presently required under the practice direction, which cannot exceed 10 pages.

HAYNE J:   Yes, thank you, Mr Cooke.

MR COOKE:   Thank you, your Honour.

HAYNE J:   Thank you, Mr Cooke.  The Court need not trouble you, Mr Sofronoff.

The applicant seeks special leave to appeal against orders of the Court of Appeal of Queensland dismissing his appeal to that court under Division 5 of Part 9 of the Health Practitioners (Professional Standards) Act 1999 (Qld) against a decision of the Health Practitioners Tribunal. His appeal to the Court of Appeal was an appeal only on a question of law. He seeks special leave to appeal to this Court to contend that his counsel was not afforded an opportunity to address that court on the substantive merits of his appeal.

We are not persuaded that an appeal would enjoy sufficient prospects of success to warrant a grant of special leave to appeal.  Accordingly, special leave to appeal is refused with costs.

Adjourn the Court to Tuesday, 2 December 2003 in Sydney.

AT 1.41 PM THE MATTER WAS CONCLUDED