Coroneos v Medical Board of Queensland
[2003] HCATrans 285
[2003] HCATrans 285
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B59 of 2003
B e t w e e n -
MICHAEL CORONEOS
and
MEDICAL BOARD OF QUEENSLAND
Respondent
Application for expedition and stay
KIRBY J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
FROM BRISBANE BY VIDEO LINK TO CANBERRA
ON MONDAY, 11 AUGUST 2003, AT 2.15 PM
Copyright in the High Court of Australia
MR N.M. COOKE, QC: If the Court pleases, I appear with my learned friend, MR S. DI CARLO, for the applicant, Dr Coroneos. (instructed by Brett Smith & Co.)
MR S.S.W. COUPER, QC: If the Court pleases, I appear for the respondent Board. (instructed by Minter Ellison)
HIS HONOUR: Thank you. Let us get clear the evidentiary foundation for the application. I think there is an affidavit on the part of your client, is that so, Mr Cooke?
MR COOKE: Yes, your Honour, and there is also material filed with the application for special leave.
HIS HONOUR: Yes, but I want to have clear to me the evidentiary foundation on which I am asked to give the relief today. There is an affidavit which is sworn on an undated, unknown day in July 2003 by Michael Coroneos. Do you read that affidavit?
MR COOKE: I do, your Honour, yes.
HIS HONOUR: Very well. Is there any objection to that affidavit for the purposes of this application, Mr Couper?
MR COUPER: No, your Honour.
HIS HONOUR: Do you wish to cross‑examine Dr Coroneos on the affidavit?
MR COUPER: No, your Honour.
HIS HONOUR: Thank you. Mr Cooke, is that the entirety of the evidence that you are relying on?
MR COOKE: Yes, that is the evidence we are relying on, your Honour.
HIS HONOUR: Thank you. I think there is an affidavit in the case of the respondent which is an affidavit of Erin Leanne Finn sworn 8 August 2003. Do you read that affidavit, Mr Couper?
MR COUPER: Yes, I read that affidavit, if your Honour pleases.
HIS HONOUR: Is there any other evidence that you are reading in this proceeding? Is that the entirety of your evidence?
MR COUPER: That is the full extent, your Honour, yes.
HIS HONOUR: Do you object to anything in that affidavit, Mr Cooke?
MR COOKE: No, your Honour.
HIS HONOUR: Do you wish to cross-examine the deponent, Ms Finn?
MR COOKE: No, your Honour.
HIS HONOUR: Very well. Do you have any evidence in reply to that affidavit?
MR COOKE: Your Honour, the only other material is the transcript of evidence in front of the Court of Appeal which was lodged with the notice of special leave application.
HIS HONOUR: I have seen that transcript. This is of the proceedings on 18 June 2003?
MR COOKE: Yes.
HIS HONOUR: This is before the second Court of Appeal constituted by Justices Davies, Williams and Atkinson. Is that so?
MR COOKE: Yes, your Honour.
HIS HONOUR: Very well. I have that, I have not read it all but I have that in the file before me.
MR COOKE: And I would refer your Honour also to the reasons for judgment which are published.
HIS HONOUR: Yes, they are matters of public record and I add those as well. Very well, now what do you say, Mr Cooke?
MR COOKE: Your Honour, in accordance with the principles which your Honour laid down in the case of Bryant, can I just address those issues which your Honour identified as those applicable for the special leave?
HIS HONOUR: I do not think there was anything novel that was said in Bryant. It was merely an application of well-worn territory that I seem to have been dealing on every Monday of my life for the last 20 years.
MR COOKE: I appreciate that, your Honour, but sometimes we need to look at it to focus our attention on the relevant application.
HIS HONOUR: Yes.
MR COOKE: But, your Honour, if I can address the question of the ‑ ‑ ‑
HIS HONOUR: Could I ask you this, is it your submission that unless a stay were provided today, the application for special leave to this Court on the natural justice point from the second Court of Appeal would be rendered completely futile?
MR COOKE: It would, your Honour, because the suspension would no doubt be served out before the application was heard. So that is the starting point for our application for the stay. Then, your Honour, if we look at the question of the prospects of the appeal and, as your Honour pointed out in that case of Bryant, it is not a matter to convince your Honour at this stage that we have a good ground of appeal but an impression that there may be something in the application for special leave.
Now, your Honour, the application, as your Honour correctly says, is because of a denial of natural justice on the part of the Court of Appeal by not hearing the merits of the appeal, but hearing only a ‑ ‑ ‑
HIS HONOUR: What do you say in answer to the respondent’s contention that all of the matters were before the second Court of Appeal and that that court had your full written submissions and that you should have been aware that that court might proceed in the way that it did and, in any case, it did not prejudice your client because that court had the full submissions that you would have wished to place before it on what you call the merits. What is your answer to that?
MR COOKE: Your Honour, I reject that because there were not full written submissions put in. It was merely an outline of submissions which is the practice in Queensland and is the prescribed - it is not, as I say, a complete full written argument, it is just simply an outline and that is the basis on which the Court of Appeal operates in Queensland at the moment, your Honour.
HIS HONOUR: I am pretty familiar with that basis, but can you take me to any part in the transcript of the proceedings before the second Full Court over which Justice Davies presided that indicates that the court was, as it were, severing a particular point which it was going to deal with first and which you say misled the applicant into believing that that would be dealt with first and ruled upon before the court proceeded to deal with what you have called merits. Now, where does that come up?
MR COOKE: Your Honour, at page 3 of the transcript at about line 42:
Would you then identify for us the questions of law on which you appeal?
Then I said a manifestly excessive sentence indicates an error of law. His Honour at the bottom of the page said:
No, the fact that it’s manifestly excessive isn’t an error of law.
Then over on the next page, page 4, at line 10:
It’s 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.
Then at page 5 his Honour said:
The question is I just want you to identify what the questions of law are to see if this Court has jurisdiction to hear an appeal.
HIS HONOUR: Just a moment. Where is that? I do not see that.
MR COOKE: That is at page 5.
HIS HONOUR: What point on the page?
MR COOKE: Line 10. It is really a threshold question. Then it goes on to the next interchange with the judge:
The question is I just want you to identify what the questions of law are to see if this Court has jurisdiction to hear an appeal.
HIS HONOUR: It is the first duty of any court to first satisfy itself, if there is any question or doubt or challenge, that it has jurisdiction. Do you say that, having regard to that passage, you believe that there was, as it were, going to be a preliminary ruling on the issue of whether there was a point of law before you were called upon to advance the arguments on the merits of the point.
MR COOKE: Yes. At that stage, your Honour, yes, because his Honour was simply asking me to identify the questions of law.
HIS HONOUR: Yes.
MR COOKE: He was not asking me to expand on it or to argue on it at all. That tenor, with respect, continues right through the exchange that I had with the court. At page 6 line 20 his Honour said:
it’s a question of jurisdiction of the Court.
The same point goes through at page 9 line 40, the judge said:
we haven’t identified the question in law yet. I thought you were coming to identify a question of law?
HIS HONOUR: There would be two ways - and I notice, by the way, that similarly on page 16 Justice Davies says:
That’s not a question of law.
That is in the middle of the page. That runs throughout the transcript, but there are two ways to read that. One is that the court is saying to you, “Well, you are putting up a lot of things here, but we can only deal with questions of law and I don’t think some of these points that you’re raising are points of law and if so we can’t deal with them.” Then, at the end of the argument, a court in that situation would just go on to deal with those matters which were points of law; jurisdiction being established by the demonstration that there is one such point. Now, why would one not read the transcript in that fashion?
MR COOKE: Because, your Honour, the court never at any stage during this exchange said, “Yes, that is a question of law. Now, address us on that.” They never did that at any stage.
HIS HONOUR: How did the exchange finish up? What was the conclusion of this interchange between you and Justice Davies?
MR COOKE: Your Honour, if I can take you to page 17 line 10 his Honour said to me:
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 -
clearly, in our submission, a reference to a preliminary point. But then when he comes to talk to Mr Freeburn, who is appearing for the respondent, at page 21 line 30 ‑ ‑ ‑
HIS HONOUR: But if you look down on that page, page 17, Justice
Williams says:
Have you got any more points of law on that particular issue, suspension for three months?
Now, is he getting into the merits at that point, or not?
MR COOKE: No, your Honour, because in our notice of appeal we said that there is an error of law because although it was unidentified the excessive nature of the penalty amounted to an error of law and subsequent to the hearing I referred the Court to the High Court’s decision in Dinsdale, which they referred to then in their judgment and said, “Well, that did raise an error of law, even if you can’t identify what went wrong.”
But what Justice Davies was trying to do was to get me to flesh out particulars of that general proposition in various items. There were two general points of law. One was that the penalty of three months was so excessive as to indicate an error of law. The second was that in relation to the view of conditions there was no evidence before the Tribunal on which those conditions could be imposed, in other words a Wednesbury argument. So they were the two separate questions of law, and it was mainly in connection with the first of those ‑ ‑ ‑
HIS HONOUR: I notice on page 21 that Justice Davies, at the very end of his exchanges with you, said:
Anything else?
MR COOKE: No.
DAVIES JA: On questions of law?
MR COOKE: Yes. No.
DAVIES JA: That’s it? All right.
Then he turned to the other side and, as I understand the application for special leave, you say that this course of proceedings led your side to believe that there would be a preliminary ruling on whether the court had jurisdiction on the basis that you had established a point of law, notwithstanding some suggestions in the course of the exchanges that there was no point of law.
MR COOKE: Yes.
HIS HONOUR: Very well.
MR COOKE: Your Honour, when he directs his questions then to Mr Freeburn, it is limited on the question as to:
whether in fact the appellant has identified any questions of law.
He was not asking for a discussion on merits, he was asking for, “What do you say about the items that have been identified as questions of law?”
HIS HONOUR: But, of course, the only merits that could be dealt with in the proceedings before the Court of Appeal, as I understand it from the Medical Tribunal, is the merits of a point of law. So that was all that could be dealt with.
MR COOKE: Yes.
HIS HONOUR: So can it be said against you that insofar as the court was endeavouring to identify the points of law, that it was thereby identifying the only matters of merit, ie legal merit, upon which you could be heard?
MR COOKE: With respect, no, your Honour, because they never ruled that way. They never indicated that these are the only grounds on which you can present an argument. We were not asked to present an argument on any of them. Even, your Honour, with respect to the comparable or the types of penalties which have been imposed, his Honour did not invite me to make submissions on the penalty by reference to the cases that we said indicated this judgment was out of kilter. All his Honour wanted me to do was to name the cases.
There was no invitation from his Honour at that point in time to explore those cases and compare them in any way with the penalty which had been imposed in this case. At page 30 of the transcript, his Honour said at line 40:
Just identify the cases.
. . . Just give us the names of the other cases which you say it’s out of kilter with.
So, your Honour, I was not being invited at that stage of the argument to present an argument to show that these cases on which we relied were apposite or analogous in determining what might be an appropriate penalty in respect of this particular case. All that the court wanted were the names of the cases that I said they were out of kilter with. Then at the end, at page 32 of the transcript, when the court adjourned, his Honour said:
We’ll consider the question –
Now, your Honour, the only question that had been debated with the court at that stage was whether there were points of law identified or raised in the notice of appeal.
HIS HONOUR: All right, well, I think I understand the way you would be putting the matter. At this stage, I think I would like to ask Mr Couper some questions. So you can just sit down for a moment.
MR COOKE: Yes.
HIS HONOUR: Mr Couper, thank you for your written submissions which make my task a little easier today, and the points of legal principle that you have gone over, I am pretty familiar with. Do you contend that the point that Mr Cooke has raised is unarguable on the basis of the transcript that he has referred to?
MR COUPER: My submission, your Honour, is that on a reading of the full transcripts my learned friend Mr Cooke’s point lacks substance and I say that for this reason. My learned friend took your Honour as far, I think, as page 21 of the transcript where the court called upon Mr Freeburn, who appeared for the Board below, to respond, and in my submission, the response took the course of each of the individual questions which my learned friend Mr Cooke has identified being considered, and by and large the respondent pointing to the court to those passages from the judgment of the Tribunal below which dealt with the matter. That was in this context, your Honour, that the points of law fell into, really, three categories.
It was said that a number of relevant considerations were not taken into account. It was said that irrelevant considerations were taken into account, and it was said that with respect to the findings there was simply no evidence to support them, those being the characterisation of points of law, what otherwise might have been regarded as exercises of decisions on matters of fact.
If I could give your Honour an example, at page 22 of the transcript, at a little below line 40, Mr Freeburn for the Board is addressing what was described as point 2:
Point 2 is that her Honour failed to take into account the continuing breach during the pendency of the appeal.
There is then a discussion that in fact that matter was taken into account and dealt with in paragraphs 33, 34, and 35 of the reasons of the Tribunal. A similar approach is taken at page 23, a little below line 20 with what is described as the “third point”. Counsel refers to the fact that, in the reasons of the Tribunal, that matter which is said not to have been taken into account is discussed in the reasons of the Tribunal and dealt with.
That was the approach taken, with respect, to each of the points identified, and then at the conclusion of that exercise at page 29 of the transcript, at about line 45, his Honour Mr Justice Davies invited my learned friend “to say anything in reply”, and what then followed was the applicant’s reply against the background that it was clear that in the preceding discussion, the identification of those parts of the transcript of the reasons of the Tribunal which, on the respondent’s case, demonstrated there was no substance to what was said to be the errors of law, that is where it was said a point was not taken into account ‑ ‑ ‑
HIS HONOUR: Yes, but if you look at the top of page 30 you will see that Mr Cooke was going on to say:
they deal with the questions . . . in our submission, questions of law.
So he seems to have still considered that what he was dealing with was a question of whether an error of law had been established. It may have been a misunderstanding or a misapprehension, but certainly, a great part of the transcript seems arguably to raise a foundation for an argument that the applicant was before the Court of Appeal, was met with a preliminary point, that there is no question of law, addressed argument to that point, and then the Court of Appeal said, “Not that we will reserve our judgment but that we will consider the question”. At this stage, all I have to be satisfied of, not myself determining the special leave application, is that there is a reasonable and viable point to be argued which would be lost if I did not give relief today.
MR COUPER: Your Honour, with respect, of course, I accept that that is the question for the day and I could not say that it was entirely unarguable that there may have been a misapprehension on the applicant’s side. But, in my submission, there is one other factor to be taken into account by your Honour in determining whether a stay ought to be granted looking at the question of the prospect of special leave being granted, and it is this ‑ that when one goes to the way in which the court dealt with the identified errors of law, which is dealt with in the court’s reasons at page 7 commencing at paragraph 12, the court there set out each of the questions.
As I have submitted, they consisted of suggested errors of failing to take into account matters of fact, of taking into account irrelevant facts, or pointing to a complete absence of evidence. The court then proceeded by a straightforward reference to the reasons for judgment of the Tribunal to form the view, in my submission correctly, that there was no substance in any of the matters because where, for example, it was said that point X is not taken into account, the court was able to go to the reasons of the Tribunal and say, “Here is where the Tribunal took that matter into account”.
So that if one were to go to the logical second stage of the process, assume that there had been some opportunity to expand on the submissions by the applicant, one asks the question, in my respectful submission, what is the outcome? And if the inevitable outcome is that the expansion would have made no difference because the errors raised were plainly not errors, then the prospect of special leave is negligible.
HIS HONOUR: I know you say that but do you remember that famous passage of Lord Denning where he said that no cause is ever finished, no case is ever over until counsel have been heard and have had the last say and a neutral, independent judge decides the matter? I am not here today deciding the special leave application. That will come before a Court in due course, whatever I decide today, but, in effect, I am deciding whether that application will have any utility because unless I provide the stay, then the period of suspension will have been served before the case comes before the Court with the power and function to decide the special leave application.
I have to tell you it may be something congenital in my bones, but I just do not like to knock a person out of court, in fact, washing my hands with the satisfaction I am simply applying the law on stays even though that has the effect of preventing the person getting his day in court, so long as there is a reasonably arguable point. From what Mr Cooke has said to me today there does seem to be an arguable point about if it may have been a misapprehension, but there does seem to be an arguable point.
MR COUPER: Your Honour, I would only be repeating myself to make further submissions on that aspect. In summary, the submission is accepting that there might be an arguable point. Nonetheless, when one looks at the outcome, the outcome was an inevitable outcome because the points of law identified were, on the face of the reasons of the Tribunal, unsustainable.
HIS HONOUR: I sat in a court of appeal for 12 years and you work under very great pressure. Courts of appeal work under very great pressure and it is easy to make a mistake of procedure that you meant at the time to deal with only a preliminary point and then you deal with the whole of the matter because all the written submissions are there and you think that is the substance of the thing. In my time I have doubtless made mistakes of that kind. It is very easy to do that in a very busy life. I do not think Mr Cooke is saying that the judges did this with malice aforethought. He is just saying that they identified a preliminary point, he argued that, and then they went off and after they had reserved it, they dealt with not just the question, which was what it is said they were reserving, but the whole merits of the appeal.
At least on the face of things, that seems to be something which we should look at. You might well succeed on the return of that point, but it is not one that I feel myself very comfortable about saying there really is not very much substance in it and I will take the responsibility now in effect of sitting as the effective High Court dealing with the merits of the special leave application. If that is so, then the question becomes: first of all, is there any risk to the public? This jurisdiction is exercised not just for Dr Coroneos; it is exercised for the protection of the public. Is there suggested to be any risk to the public if there is a delay in the suspension of a matter of weeks? Can you say that?
MR COUPER: No, your Honour, there is no evidence to suggest there is a risk to the public in a delay for some weeks.
HIS HONOUR: If that is the case, then the next question is whether the matter can be listed before the Court with some degree of expedition so that one way or the other the matter is dealt with without undue delay. I assume that you would ask that if I were minded to grant a stay, that I should expedite the hearing of the application for special leave?
MR COUPER: That is so, your Honour.
HIS HONOUR: I understand that there is a special leave list by video link to Brisbane on 12 September 2003.
MR COUPER: Yes, your Honour.
HIS HONOUR: I will just consult with the Registrar because I gather Justice Callinan has two applications for expedition tomorrow and I will have to try and work out whether or not either of them has greater priority than this matter. Mr Couper, there are two urgent matters that Justice Callinan will be dealing with tomorrow and one of them sounds as though it may have higher priority than this. The next application after 12 September is a probable video link to Brisbane on 14 November. That is now a matter of four months. What do you say about that?
MR COUPER: Your Honour, in my submission, if it were possible to have the matter dealt with earlier than 14 November, that would be the appropriate course. Four months further delay, given the lengthy delay since the term of suspension was first imposed back in 2000, would warrant, if there were some other means by which the matter could be heard more promptly, an investigation of that.
HIS HONOUR: Yes. Is 14 November convenient to you personally?
MR COUPER: Yes, your Honour.
HIS HONOUR: Yes, I am minded to expedite the matter to 14 November and to make orders that leave no doubt concerning the timetable for the filing of the application and summary statements of argument because I understand that the previous application by this present applicant for special leave was not dealt with in accordance with the rules and ultimately was deemed abandoned. Is that correct? That was from the first Court of Appeal decision.
MR COUPER: My learned friend Mr Cooke has that, I think, your Honour.
MR COOKE: Yes, it was, your Honour, because, without burdening your Honour with all the reasons for it, that was an appeal to the Court of Appeal on a case stated which was a very difficult procedure from which to appeal and it was sought ‑ ‑ ‑
HIS HONOUR: Yes, but you did have a dissent in that case, did you not? You had a very strong dissent from Justice Thomas, which I have read, and then ‑ ‑ ‑
MR COOKE: Yes, and, your Honour, I suppose the decision was taken by the applicant and his legal advisors to apply for review rather than pursuing the High Court appeal and it was the review that came on before the Health Practitioners Tribunal, which has resulted in these additional orders about which we are appealing under different types of legislation to the Court of Appeal.
HIS HONOUR: Yes.
MR COOKE: And that is why that appeal was abandoned at that time, but your Honour can be assured that the applicant will pursue this appeal as quickly as possible. We have filed our outline of argument, and so forth, already, I think; it was filed with the application.
HIS HONOUR: Have you filed your draft notice of appeal?
MR COOKE: Not yet.
HIS HONOUR: All right. Well, you have heard what I have said in relation to the need for strict compliance with the timetable. The price of having expedition and of having a stay, which is consequent upon the
expedition and attached to it, is that there must be strict compliance because if your client simply fails to comply with any particular in relation to the terms of the expedition then I will have the matter returned before me within two days and will vacate the order for expedition and vacate the stay. I would want your client to be in no doubt as to that, having regard to the fact that we have a lot of applications for expedition and having regard to the history of your client’s lack of attention to the earlier proceeding, which he commenced in this Court. No doubt you will explain that to your client.
MR COOKE: Yes, I will, your Honour, and I think the Registrar will tell us what else needs to be done, but, from recollection, the only thing that needs to be done now is to actually file a draft notice of appeal. I think all the other requirements have been met.
HIS HONOUR: Yes, very well, thank you. Is there anything else either of you gentlemen want to say before I make the orders which I foreshadowed? Mr Couper, is there anything else you wish to say?
MR COUPER: No thank you, your Honour.
HIS HONOUR: Mr Cooke?
MR COOKE: The only question would be on costs, your Honour.
HIS HONOUR: Well, I would take the view that the costs should be costs in the proceedings before the High Court. They would simply be reserved and become part of the costs of the proceeding. Is that satisfactory to you, Mr Couper?
MR COUPER: Yes, your Honour.
HIS HONOUR: I have before me an application for a stay of orders of the Court of Appeal of the Supreme Court of Queensland. Associated with that application is an application for expedition of the hearing of the special leave application before this Court.
The only basis upon which I would consider providing a stay in this rather protracted litigation would be on the footing that, one way or the other, the matter in contest between the parties was dealt with quickly.
The facts
I remind myself at the outset that the purpose of the jurisdiction over professional discipline, such as that which concerns the applicant, Dr Michael Coroneos, is the protection of the public. The case has a long history. Dr Coroneos is a specialist neurosurgeon. He commenced practice as a medical practitioner in 1980 and as a neurosurgeon in 1987. According to Justice Fryberg, who heard an earlier stage of the proceedings, Dr Coroneos quickly developed a high reputation and an extensive practice.
However, on 28 January 1994 he pleaded guilty to a count of defrauding the Commonwealth of $38,000 in a case described as one of “Medicare fraud”. He was sentenced to three and a half years imprisonment with a recommendation of a non‑parole period of three months. He served his sentence. Subsequently, he was charged before the relevant medical body with professional offences. Proceedings in respect of these have progressed to no fewer than two appeals in the Court of Appeal of Queensland and two applications to this Court.
In the first proceeding in the Court of Appeal that court was constituted by Justices McPherson, Thomas and Williams. An application for special leave to this Court was commenced. However, it was subsequently deemed abandoned for non‑compliance with the Rules of Court. In those proceedings Justice Thomas dissented from the orders of the Court of Appeal.
Subsequently, the matter proceeded in turn before the Medical Board of Queensland and the Tribunal. It again returned to the Court of Appeal of Queensland. On this occasion that court was constituted by Justices Davies, Williams and Atkinson. In the second appeal the Court of Appeal was unanimous. It made certain orders. It is against those orders that Dr Coroneos has now applied for special leave to appeal to this Court.
The argument
The foundation for the application for special leave is Dr Coroneos’ contention that, in the second proceedings before the Court of Appeal, he was denied natural justice or procedural fairness. The foundation for that contention is the suggestion that the Court of Appeal decided to sever, as a preliminary issue, the question of whether the grounds of the appeal to it identified any point of law. It was a precondition for the jurisdiction of the Court of Appeal that the appellant, in such a case, should establish error of law on the part of the Health Practitioners’ Tribunal.
Before me today I have heard argument addressed to the proper interpretation of the transcript of the proceedings before the second Court of Appeal on 18 June 2003. For the applicant, Mr Cooke contends that a fair reading of the transcript indicates either that the Court of Appeal made it clear that it intended to sever, as a preliminary question, whether an error of law had been established or that the conduct of the appeal by that court was fairly open to that interpretation. In its ultimate reasons, the Court of Appeal proceeded not only to determine the question of whether an error of law had been demonstrated in the grounds of appeal but also to deal with those errors. The Court of Appeal rejected all such suggested errors. It dismissed the applicant’s appeal.
This is the foundation for the present application for special leave to appeal to this Court. The applicant says that, before the decision of the Court of Appeal, he did not have the opportunity to address what are called the merits of the case. When I examine the transcript of argument of the appeal, I cannot say that the contention being raised in the applicant’s grounds for special leave is unsustainable. Whether the contention will be made good will depend upon the written and oral arguments of counsel on both sides. In the normal course that question would be resolved by a special leave Bench comprising three or possibly two Justices of this Court.
The applicable principles
An application for a stay of execution of the judgment of the court a quo, before the determination of whether special leave will be granted by this Court, is not available for the asking. On the contrary, in numerous authorities to which the parties have referred, this Court has made it plain that the grant of a stay, in advance of the decision in an appeal (and even more so in advance of a grant of special leave) is truly exceptional.
It is necessary for the applicant for the stay to establish that there are exceptional circumstances that warrant it: see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 and Bryant v The Commonwealth Bank of Australia (1996) 70 ALJR 306.
I take into account the strong rule of restraint which this Court has repeatedly expressed. I also take into account the insistence of this Court that decisions of the courts below are not to be regarded as provisional, pending the final resolution of any proceedings in this Court.
Nonetheless, the applicant has an arguable point. Unless a stay is granted, the point is effectively lost to him. The matter ultimately in issue is an order suspending his right to practise for an interval. If the application for special leave were to await its ordinary date, in a return before the special leave Bench, the applicant would, in the normal course, have served the period of suspension. The proceedings before this Court would then be rendered futile.
It was accepted by counsel for the Medical Board of Queensland that, although the jurisdiction exists for the protection of the public, this was not a case where a delay of the implementation of the order affecting the applicant would pose any risks to the public or to Dr Coroneos’ patients as such. Nevertheless, quite properly, counsel for the Board has indicated that it is desirable, in the public interest, that the orders of the appropriate authorities in Queensland should be upheld so long as they are lawful and that the issue before this Court should be resolved quickly. I agree with these submissions.
In these circumstances, the proper course is to order the expedition of the hearing of the application for special leave and to provide a stay until that hearing is determined. The first hearing that could be secured is a possible video link that will be established from Canberra to Brisbane on Friday, 14 November 2003. Accordingly, I expedite the hearing of the application for special leave to that day.
Orders
I will also make orders requiring strict compliance with Order 69A of the Rules of this Court, especially having regard to the past record of the applicant in the earlier proceedings in this Court. I make it clear that, if he does not conform to the orders that I now make, the matter will be returned before me promptly to vacate the order of expedition and the stay.
The orders which I make are:
1. Order the expedition of the hearing of the application for special leave. Return that application before the Court on 14 November 2003;
2. Order the applicant to file and serve a draft notice of appeal in accordance with Order 69A rule 6 on or before Monday, 18 August 2003;
3. Order the respondent to file and serve the summary of argument in accordance with Order 69A rule 7 on or before Monday, 8 September 2003;
4. Order the applicant to file and serve any reply in accordance with Order 69A rule 9 on or before Monday, 15 September 2003;
5. Thereafter, order the parties to comply with all reasonable directions of the Deputy Registrar in relation to the settlement of the index to the application book;
6. Order the applicant to file seven copies of the application book and serve three copies thereof upon the respondent, prepared in accordance with the settled index and any directions of the Deputy Registrar no later than Friday, 3 October 2003;
7. Order a stay of the operation of the judgment of the Court of Appeal of the Supreme Court of Queensland dated 4 July 2003 until 14 November 2003 or any earlier or other date ordered by this Court;
8. Order that the matter be relisted by the Deputy Registrar before me in the event that there are two days of default by either party in compliance with the timetable which I have ordered;
9. Order that the costs of the application be costs in the proceedings before this Court; and
10. I certify for the appearance of counsel in public chambers.
Are there any other orders that you seek, Mr Couper?
MR COUPER: No, thank you, your Honour.
HIS HONOUR: Mr Cooke?
MR COOKE: No, your Honour, thank you.
HIS HONOUR: Very well. Just make sure that your client understands, Mr Cooke, there will be no second chance. If he does not comply with the orders and the Rules this time then I will lift the stay and the matter will go back into the general list and will take its course next year and your client will be subject to the orders of the courts of Queensland.
MR COOKE: Yes, thank you, your Honour.
HIS HONOUR: The Court will now adjourn briefly in order to establish a video link to Perth, Western Australia.
AT 3.06 PM THE MATTER WAS CONCLUDED
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