De Silva v NSW Medical Board

[1997] HCATrans 96

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S156 of 1996

B e t w e e n -

WICKREMASURIYA JAYAWARBHENA KIRIKANKANANGE DE SILVA

Applicant

and

NEW SOUTH WALES MEDICAL BOARD

Respondent

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 APRIL 1997, AT 10.51 AM

Copyright in the High Court of Australia

MR M.J. NEIL, QC:   If the Court pleases, I appear with my learned friend, MS G.M. PRESTON, for the applicant.  (instructed by Makinson & d’Apice)

MR D.J. HIGGS, SC:   May it please the Court, I appear with my learned friend, MR M.J. FORDHAM, for the respondent.  (instructed by the New South Wales Medical Board)

MR NEIL:   Your Honours, the Court of Appeal did not deal with two matters which, in our submission, it is necessary for this Court to deal with.  Firstly, on the question of bias, the court did not even rule upon or give any reasons or appears to have overlooked the point about what to do where there is what we would describe as a statutorily ostensibly biased tribunal by virtue of its constitution, and what part that circumstance should play in considering whether a party or a reasonable observer might have the relevant reasonable apprehension. 

In his judgment Mr Justice Clarke just does not deal with the point.  It is a point, your Honours, that was dealt with ‑ ‑ ‑

GAUDRON J:   How do you say it should have been dealt with, because, I mean, you start with the assumption, do you not, that to that extent that consideration is irrelevant to ostensible bias.  If that is what the statute prescribes, so be it.

MR NEIL:   That was a position as appears from the material that has been filed, your Honours, from the judgment of the Court of Appeal on the first occasion, accepting that that must be accepted as the legislature provides for this, but his Honour Justice Kirby in that case did pass upon the effect of it.  That is at page 7 his Honour said:

Part of the complaint of Dr De Silva was addressed to the circumstances that the Tribunal which will hear his appeal is made up of members who are chosen by the Board which is, in effect, the prosecutor and complainant.  He complains that three of the participants in the appeal hearing are chosen in this way.  Two are medical practitioners whose names are chosen by the Board itself.  A third is a lay person whose name comes from a list constituted by the Minister but the individual is actually chosen by the Board.  This is, to say the least, an unusual feature of this Tribunal.  Speaking for myself I can understand the complaint that is made by Dr De Silva about it, but it is not something which this Court can repair in any way for the provision is made in the Act of Parliament.

The case then went on before the Tribunal over some weeks, and I should briefly mention that nearly all the serious factual allegations specifically made were, in effect, not proven and the matters that led to the Tribunal rejecting the appeal were the allegations of psychotic behaviour, which were not particularised and no specific examples were referred to in the judgment, and a number of other matters.  But in the context of the Tribunal itself acknowledging that there had not been proven any wrong diagnoses or any ill effects on any patient other than a Mrs Bajevic, which was a very minor matter of my client complained to her about his problems with the authorities.

Now, on the appeal, we submitted that my client, who had put on an affidavit and said he was very concerned about the fact that on the stay application he had had his registration not lifted, in effect defining that he was a danger to the public, albeit on that evidence, he had wanted a different Tribunal.  He put on evidence to say that he was very concerned and worried.  The court said, well, we do not look at perhaps undue sensitivities.  But it is our submission, your Honours, that when one looks at the fact that he had been required to go to a number of inquiries by this Board or its predecessors or its committees over a number of years.  The Board had appointed Dr Ellard and required him, compulsorily as a condition of staying on the Register, to submit himself to Dr Ellard over a number of years.  Ellard, appointed therefore by the Board, was the main witness against him, as well as the three members of the Tribunal appointed by the Board. 

If one makes the usual assumption that the objective bystander is equipped with that knowledge, we would submit the bystander would have a very deep concern ‑ ‑ ‑

GAUDRON J:   But all of these were permitted by statute, were they not?

MR NEIL:   Your Honour, it is permitted by statute, but the point is what do you do when the bystander - if the bystander knows it is permitted by statute, he is not estopped from being shocked by the whole of the proceedings.

GAUDRON J:   He may be shocked by the statute, but so be it.

MR NEIL:   But, your Honour, he is no estopped.  The court may be estopped from saying, “That factor does not of itself constitute a problem”, but if the bystander, knowing of that, and then seeing what else occurs, has a reasonable apprehension ‑ and we submit he would, without he might, we would say he would, we would say he certainly would, but all we have to say is he might ‑ ‑ ‑

McHUGH J:   But the starting point is the trial provided for by the statue on a proceeding provided for by the statute.  That is the base.  The bystander may be shocked by what the statute requires, but that is the beginning and end of the matter.  So long as the Tribunal acts in accordance with the statute, there is no case of ostensible bias.  It is as simple as that.

MR NEIL:   But the problem arises, with respect, your Honour, where there had been a previous proceeding.  If there had not been the previous stay application we would not be, obviously, making the point.  Where there was a previous proceeding and the bystander knows that that has taken place, and then he sees that the same Tribunal statutorily constituted with the same procedure, the same main witness, is to then hear his full case ‑ ‑ ‑

McHUGH J:   But that is a different point altogether.  It has nothing to do with who appointed the members of the Tribunal.  It is a question of prejudgment of somebody who has heard a matter and is then hearing it again.  It is a different category of case.

MR NEIL:   But we would submit, your Honour, that it is not, because one has to ask what is the position from the objective bystander’s point of view or the party.

BRENNAN CJ:   Why does one ask that question?

MR NEIL:   Because the legal principle under Livesey, your Honour, is that if the party or the bystander might have the reasonable apprehension, then there is the ostensible bias in law.

BRENNAN CJ:   So?  What happens from that point?

MR NEIL:   Then if the Tribunal does not disqualify itself, a Court of Appeal should quash the proceedings.

BRENNAN CJ:   For the reason that?

MR NEIL:   For the reason that the objective bystander might, in all the circumstances, including the constitution of the Tribunal ‑ ‑ ‑

BRENNAN CJ:   We understand what the objective bystander - but given that, for what reason would the Court of Appeal intervene?

MR NEIL:   Because the bystander comes within the Livesey principle.

BRENNAN CJ:   The Livesey principle says when a statute prescribes a hearing, then it is to be assumed that the hearing is one which conforms with the Livesey principle, but that simply has no application when the statute says, “This is the way in which the Tribunal shall be constituted.”  In other words, the Court intervenes because there has not been a hearing in accordance with the statute.  That is the basis on which the Court exercises any jurisdiction.

MR NEIL:   Your Honour, with respect, if the Court is faced with a problem with a tribunal that, although hearing as constituted by the statute, is nonetheless hearing in the context of a prior hearing in which it has dealt with the man at least on one prior occasion adversely, albeit on the evidence of that occasion, and if the bystander knows that the statute has provided that the witnesses are appointed by the Board and the members are appointed by the Board, we submit that the Livesey principle comes into play if all those circumstances are known to the bystander.

BRENNAN CJ:   I do not understand the foundation on which your submission is based.  What is the justification for the Court’s intervention in a proceeding which appears on its face to conform to the statute?  The answer must be because, for some implied principle in the statute, the hearing does not accord with what the Parliament intended.

MR NEIL:   Your Honour, the Parliament would not intend, in our submission, that you have a hearing by a Board constituted by statute which had previously made the decision of the nature that it had made, in circumstances in which the bystander would be entitled to feel that the person concerned is not likely or might not get a fair hearing.

McHUGH J:   But that is a different argument.  You seem to be running together two different arguments:  a prejudgment argument by a tribunal that has already heard the matter and the appointment by the Board.  They are quite two separate questions and the second point, the appointment by the Board, seems to me to have no substance in it at all.  If the New South Wales Parliament passed a law tomorrow that said, “Anybody who had been heard, tried and convicted by a magistrate shall always be tried and convicted by that magistrate”, that would be the beginning and end of it.  You would not be able to set any future conviction on the ground that there was a reasonable apprehension of bias.  That is what the statute required.

MR NEIL:   But it would depend, your Honours, as to whether or not there had been some other factor that - see, where you have a statutory construction like this and where, if it be the case, that there is no appeal on the relevant facts, then as Justice Kirby pointed out when dealing with credit matters in the ANI Case, it is even more important to examine whether or not there is a reasonable apprehension of bias.  Because this is a final decision of the Tribunal that, according to the arguments against us, is almost impervious to any review on the facts, and if you do not find a point of law, you are finished.  We would say that the reasonable bystander principle must be given the fullest scope as appears in the judgments.  It is a strict doctrine.  It is a strict doctrine.

McHUGH J:   It is not a strict doctrine at all.  I do not know what you mean by “strict doctrine”.  It is a doctrine which purports to give effect to the intention of the legislature, that ordinarily legislatures do not intend proceedings to be conducted by biased tribunals, but when the statute specifies the way a tribunal is to be constituted, and the tribunal is constituted in accordance with the statute, then that is taken out, any question of bias.  You start against that background.  You may have other grounds for bias, but the appointment of the members of the Board or its constitution has got nothing to do with bias because that is done in accordance with the statute.

MR NEIL:   Your Honours, the Court of Appeal did not pass upon the point, but if your Honours are of the view that it has nothing to do with it, there is not much more I can say on that particular point.  But we do submit, with respect, your Honours are perhaps not approaching it in quite the way we would hope because it is not the end of it.  I do not want to repeat myself.  The bystander is not blocked by the fact that the statute determines this.  The bystander can take it into account.  If the bystander is concerned about it, not if there is just one case ‑ I emphasise, obviously.  If there is just one case and they are hearing it according to the constitution of the Tribunal, that is nothing I could complain about.

BRENNAN CJ:   Are you saying that there was prejudgment?

MR NEIL:   We say that there is appearance of prejudgment by a Tribunal and the constitution reinforces, in effect, the prejudgment apprehension on the part of the bystander.  That is the point, I suppose, your Honour, without combining two points.  I will put it that way.  That is what has happened here.

BRENNAN CJ:   What else could have happened?

MR NEIL:   Your Honour, a different tribunal, just different personnel.  As appears from the judgment, there was some inconveniences in arranging it, but it was by no means impossible and it could have been done.

McHUGH J:   Maybe it could have, but assuming that there was no evidence that they had prejudged the matter, then what else have you got left?

MR NEIL:   If one makes the assumption of no prejudgment or no apprehension of prejudgment, then there is nothing left.  But in these circumstances, we would submit there was clearly an apprehension of prejudgment.

Your Honours, as far as the construction point is concerned, it is not sufficient, as my learned friend puts in his written submissions, to say this is a matter involving the New South Wales legislation and the Court of Appeal should deal with it.  Mr Justice Mahoney, in the quote that we have put in our written submissions, in the Bannister Case at 732 has said that:

It is possible that , whilst it is limited to appeal with respect to a point of law, the Court may disagree with the findings of fact as such made by the Tribunal.  Whether this Court would, in considering the order to be made, act upon a finding of fact which, though wrong, did not disclose error with respect of a point of law is a matter which may require consideration in an appropriate case.

We would submit this is the exactly appropriate case, your Honours, because here is deregistration.  The Court of Appeal said, on these facts, it followed almost as night follows day, but we would submit very strongly, no.  The Tribunal itself allowed a six-month lifeline, if I could put it that way, and suspension would have been a most reasonable course to have adopted whilst the treatment was undertaken, without the shattering effects of the applicant being put off the register, where he has never, on any finding, been shown to have ever harmed a patient. 

Now, what the Court of Appeal then failed to do was to go into the facts arguments by saying, “We are blocked from running them.”  So that it is terribly important, we would submit, even if it is only in this State, that the nature of this appeal be clarified and ruled upon.  The order, the exercise of the power, to make an order must, we would submit, include some aspects of factual consideration.  Mr Justice Mahoney seems to accept that in the future it is necessary to consider whether that is the point.  We would submit it is necessary to consider it and this is the case. 

The Court of Appeal simply said, because we will stand by the majority in Bannister, there is therefore no need, even, for us to consider these factual matters.  We would submit we may well have been able to demonstrate, and would be able to demonstrate on appeal, that the deregistration order, if one examines the facts, or if this Court made a certain order and referred it back, that the deregistration order was simply manifestly unfair and unreasonable in the circumstances. 

But the exercise of a power cannot be exercised in vacuo, otherwise it, in effect, means that the appeal is restricted, setting aside points of law, to matters where you simply look at all the facts as found and assume them, in effect, against the person concerned and somehow the Court of Appeal has to say, well, on those facts, we would either agree or disagree with the particular order, without in any way examining the facts.  Now, that cannot be right, we would submit, and it is that point that must be determined by the Court, particularly as, we all know, this Court only takes matters by special leave.  We would submit the parliamentary intention could never have been to in effect restrict the right of appeal right down to some very minor areas, in addition to a point of law, that have no real practical application in this serious type of case.  May it please the Court.

BRENNAN CJ:   Thank you, Mr Neil.  We need not trouble you, Mr Higgs.

Despite the helpful submissions of Mr Neil, we can see no error in the decision of the Court of Appeal which, if special leave were granted, would lead this Court to a different conclusion.  For that reason it would not be right to grant special leave to appeal. 

AT 11.09 AM THE MATTER WAS CONCLUDED