Coroneos v The Honourable Justice Fryberg

[2000] QSC 468

SUPREME COURT OF QUEENSLAND

CITATION:

Coroneos v The Honourable Justice Fryberg [2000] QSC 468

PARTIES:

MICHAEL CORONEOS
(applicant)
v
THE HONOURABLE JSUTICE G FRYBERG
(first respondent)
and
MEDICAL BOARD OF QUEENSLAND
(second respondent)

FILE NO/S:

S10121 of 2000 Brisbane Registry

DIVISION:

Trial Division

DELIVERED ON:

14 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2000

JUDGE:

Mackenzie J

ORDER:

I order that the application be dismissed with costs to be assessed.

CATCHWORDS:

APPEAL – MEDICAL ASSESSMENT TRIBUNAL – ERROR OF LAW – LACK OF JURISDICTION – refusal to state a case – failure to get certificate of refusal – powers of Court of Appeal

Medical Act (Qld) 1939

Byers v Rolls (1877) 5 QSCR 34
Medical Board of Queensland v Bayliss (2000) 1 QdR 598
The Queen v Rigby (1956) 100 CLR 146

COUNSEL:

N M Cooke QC for the applicant
P A Freeburn for the respondents

SOLICITORS:

Brett Smith & Co Solicitors for the applicant
Minter Ellison for the respondents

1. MACKENZIE J:  This is an application for an order requiring  the judge constituting the Medical Assessment Tribunal to show cause under section 44 of the Medical Act 1939. Pursuant to s43(1) any person aggrieved by a decision of the Tribunal who desires to appeal therefrom on the ground that the decision is erroneous in point of law or is in excess of jurisdiction may apply in writing to the judge to sign and state a case setting forth the facts and grounds of decision for appeal thereon to the Court of Appeal.

1. Section 44(1) provides that in any case in which the judge is of opinion that the application is frivolous, but not otherwise, the judge may refuse to state a case. The judge is obliged, upon request of the applicant to sign and deliver to the applicant a certificate of refusal.

1. Section 44(2) provides that when the judge refuses to state a case the applicant may apply to the Supreme Court or another judge thereof upon an affidavit of the facts, for an order calling on the judge and on any party interested in supporting the decision to show cause why the case should not be stated. Section 44(3) provides that an order may be made returnable on any day on which the Court of Appeal is appointed to sit. The Court of Appeal may make the order absolute or discharge it with or without costs. Under s44(4) if the order is made absolute the judge shall state a case upon being served with the order absolute.

1. It is also convenient to note that under s45 the Court of Appeal is to hear and determine every question of law arising on the case.  It may remit the matter to the Tribunal with its opinion on it or make such order in relation to the matter as seems proper.  Section 46 permits the Court of Appeal to send the case back to the judge for amendment.  Upon amendment judgment is to be delivered by the Court of Appeal.

1. The procedure is a formalised procedure with all the inherent vices and inconveniences of the case stated procedure. 

1. On 5 September 2000 Dr Coroneos' solicitor wrote to Justice Fryberg enclosing a draft case stated for his consideration.  The necessary recognisance pursuant to s43(2) was entered into.  The two questions of law upon which the Court of Appeal's opinion was sought were:

(a)Did the Tribunal have power or jurisdiction to impose the conditions which it did in the absence of any finding of incompetence or impairment as defined in s17F of the Medical Act 1939?

(b)Were the conditions imposed by the Tribunal so unreasonable in the circumstances of the case as to indicate an error of law on the part of the Tribunal in the exercise of its discretion?

1. The draft case stated set out the history of the matter and cross referenced various findings to the reasons of the Tribunal.  Other documents were also annexed.  Fryberg J redrafted the case stated substantially.  He gave reasons for doing so.  He also amended the questions.  The complaint made is that the second question in the draft stated case submitted has effectively been omitted. 

1. In the reasons of Fryberg J for stating the case in the form in which he did and in Mr Cook's submissions before me, there was reciprocal criticism of those parts of the draft case and the case stated by Fryberg J which purport to obey the statutory requirement that the facts and grounds of the decision of the Tribunal be stated. 

1. It is obvious that Fryberg J has purported to state a case.  Reference has previously been made to the fact that the procedure under the Medical Act for stating a case is formalised.  In my opinion the short answer to the application is that there is no evidence before me that a necessary step, the obtaining of a certificate of refusal to state a case from the Tribunal, has been complied with.  Lest this be thought to be a mere technicality, it is not.  It is a necessary step to provide formal evidence of the refusal to state a case.  It is designed no doubt to avoid the kind of exercise which I was effectively invited to perform, to decide whether there had been a refusal to state a case, notwithstanding the obvious fact that one has been stated, merely because one ground sought to be included by the applicant is not included in the form requested for the reasons expressed by Fryberg J.  The application must fail on that ground alone.  However, there is also one other aspect of the matter which would also preclude the relief sought being given by me.               

1. In Medical Board of Queensland v Bayliss (2000) 1 QdR 598 McMurdo P and Thomas JA noted the difficulty inherent in the case stated procedure, especially where, in conformity with The Queen v Rigby (1956) 100 CLR 146, 153, the grounds or questions that the case was supposed to raise were not stated. In the Court of Appeal the view was expressed that the grounds needed to be identified with some precision so that it could be seen that they were confined to the appropriate limits. It was said that it was highly desirable as a matter of practice that the case stated should include the relevant questions that were raised.

1. McPherson JA felt constrained to follow The Queen v Rigby rather than the earlier Queensland Full Court case of Byers v Rolls (1877) 5 QSCR 34 while pointing out the difference between the provision considered in Rigby and section 43(1) of the Medical Act. He also said the following:

"Although s.43(1) does not in terms require a statement of questions of law, but only of the grounds of the decision, the remarks quoted from The Queen v. Rigby show that it would not have been improper to have stated questions of law in this instance.  It would certainly have been convenient if some such questions had been stated.  What seems clear, however, is that the failure to include them does not deprive this Court of jurisdiction to determine questions of law that can be shown to arise from the facts and the grounds of the decision as 'set forth' in the case stated to this Court."

1. Unattractive as the prospect may be, the issues of sufficiency of the facts and grounds seem to me to be for the Court of Appeal to determine and, if necessary, exercise the power in section 46 to send the case back to Fryberg J for amendment.  The process by which the sufficiency or accuracy of the facts and grounds may be examined is perhaps tortuous, especially where the ground sought to be agitated is essentially that it should be inferred that there must have been some error of law because of the allegation that the conditions imposed are unreasonable.  So far as issues of law and jurisdiction are concerned, the Court of Appeal's jurisdiction to deal with them is not dependent on their expenses inclusion in the case stated. 

1. The reality is that the case stated includes what purports to be the grounds and reasons for the decision and that a case has been stated.  Notwithstanding the practical problems averted to Medical Board of Queensland v Bayliss the fact that a particular ground is not included, or not included in terms satisfactory to the applicant, does not in my view preclude the substantive issues from being raised in the Court of Appeal if it is demonstrated that the decision is erroneous in point of law or is in excess of jurisdiction. 

1. It follows from what has been said that the application must be dismissed with costs to be assessed.