Dorman v Rodgers

[1982] HCA 25

HIGH COURT OF AUSTRALIA

Gibbs C.J., Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ.

DORMAN v. RODGERS

(1982) 148 CLR 365

11 May 1982

High Court

High Court—Appeal—Appeal as of right—Competency—Question respecting civil right amounting to or of value of $20,000 or upwards—Removal of name of medical practitioner from register of practitioners—Whether right involved—Whether right to practise capable of valuation—Judiciary Act 1903 (Cth),s. 35 (3) (b).

Decisions

May 11.
The following written judgments were delivered: -
GIBBS C.J. The present appeal is brought from a decision of the Supreme Court of New South Wales (Court of Appeal) dismissing an appeal against an order made by the Disciplinary Tribunal under s. 29 of the Medical Practitioners Act 1938 (N.S.W.), as amended, directing that the name of the appellant be removed from the register of medical practitioners for New South Wales. An objection has been lodged to the competency of the appeal. (at p366)

2. It was contended on behalf of the appellant that the proceedings "involve directly or indirectly a claim, demand or question to or respecting any property or any civil right amounting to or of the value of $20,000 or upwards" within the meaning of s. 35 (3) (b) of the Judiciary Act, and that an appeal to this Court therefore lies as of right. It was submitted that the proceedings involve the right of the appellant to practise as a medical practitioner, and that the value of that right to him exceeds $20,000. In fact the appellant is employed as a senior medical officer by the State Rail Authority of New South Wales at a salary which is at present $33,761 per annum. He has been employed in that position for some years, and might have expected to remain in it for some years more. However, if his name is not restored to the register, his employment will, it was said, be terminated. It was submitted that the salary which he would have received in that position would have accrued from the exercise of the right to practise and provides a measure of the value of that right. (at p367)

3. It was held by this Court in Clyne v. N.S.W. Bar Association (1960) 104 CLR 186 that no appeal lay as of right from an order striking the name of the appellant off the roll of barristers, notwithstanding that the net income of the appellant from his practice had been, and was likely to be in future, greater than the amount specified in s. 35 of the Judiciary Act. The Court said of the order of the Supreme Court in that case (1960) 104 CLR, at p 205 : "There is no 'property' that can be said to be involved, and no civil right capable of being valued." That decision governs the present case, and in my opinion it was correct. It proceeds on the ground that a right to practise a profession is incapable of valuation. It is true that a person who has a right to practise a profession may earn considerable sums from the exercise of the right, and that many, if not most, would suffer financially if deprived of the right. But what is valuable is the person's own earning capacity, which is something personal to him. The right to practise is of course not transmissible, and the financial consequences of possessing the right will depend on the skill, ability and fortune of the individual concerned. One man, who has a right to practise, may, because of his own imperfections or misfortune, earn less than he could have obtained from unskilled employment. Another, who has earned a substantial income from practising his profession, may, if he is deprived of the right to practise, earn an even larger income from some other occupation. In other cases the deprivation of the right to practise may not affect the existing employment of the person concerned in any way. In the present case, it may prove possible for the State Rail Authority to continue to employ the appellant in a different capacity. One may venture to hope that such a course, which might greatly assist the appellant in his rehabilitation, may prove convenient to the Authority. All these things support the conclusion reached in Clyne v. N.S.W. Bar Association that a right to practise is in itself not capable of being valued for the purposes of s. 35. (at p367)

4. For these reasons the objection to competency must be allowed. The appellant sought special leave to appeal. It was not in question that the appellant had been convicted on forty-four charges of dishonesty in relation to the Health Insurance Scheme, and that he had been addicted to deleterious drugs. The Disciplinary Tribunal and the Supreme Court had to exercise a discretionary judgment as to what order should, having regard to the public interest, be made in these circumstances. The Disciplinary Tribunal reached the conclusion, with which the Supreme Court concurred, that the appellant's name should be removed from the register. When the matter first came on for hearing in this Court it had to be adjourned through no fault of the parties, and when the matter was again listed the Court took the exceptional course of allowing the parties to argue the matter fully, so that if special leave were granted further costs need not be incurred. The fact that the Court took that course does not in my opinion necessitate a departure from the usual practice, which is to give no reasons for the refusal of an application for special leave to appeal in a civil case. It is enough for me to say that in my opinion nothing has been shown in the present case which would warrant the grant of special leave to appeal. (at p368)

5. I would allow the objection to competency and would refuse the application for special leave to appeal. (at p368)

STEPHEN J. In August 1980 the Disciplinary Tribunal established under the Medical Practitioners Act 1938 (N.S.W.) Directed that the name of George Alan Dorman be removed from the register of medical practitioners in New South Wales. An appeal by Dr. Dorman to the New South Wales Court of Appeal was dismissed and he now seeks to appeal against that dismissal to this Court. (at p368)

2. Dr. Dorman contends that an appeal lies as of right but the respondents object to the competency of the appeal. Competency turns upon s. 35 (3) (b) of the Judiciary Act 1903 (Cth), as amended, which permits an appeal as of right from a final judgment of the Full Court of a State Supreme Court
"in any proceedings in which the matter in issue amounts to or is of the value of $20,000 or upwards or which involve directly or indirectly a claim, demand or question to or respecting any property or any civil right amounting to or of the value of $20,000 or upwards". (at p368)

3. It is the second of the two limbs of this paragraph upon which Dr. Dorman relies and, more specifically, upon that portion of the second limb which refers to a question respecting any civil right; he will have an appeal as of right only if the judgment and order of the Court of Appeal were given in proceedings which involved directly or indirectly a question respecting any civil right of the value of $20,000 or upwards. (at p368)

4. It was conceded in argument before us that the proceedings before the Court of Appeal involved a question respecting a civil right, said to be the right to practise medicine as a registered practitioner; it was primarily with questions of value that the argument was concerned. However, to my mind, a proper analysis of relevant facts and the application to them of the provisions of s. 35 (3) (b) calls for the rejection of this concession. Its acceptance is likely to lead to distortion in the pattern of reasoning. (at p369)

5. Registration as a medical practitioner under the Medical Practitioners Act is essentially a matter of mere certification because it does no more than attest the possession by the practitioner of certain qualities regarded as necessary for those who are to practise medicine. Registration requires the possession of, and loss of registration is a consequence of the discovery of the absence of one or more of, a variety of positive qualities, such as the possession of appropriate academic knowledge, practical skills, experience and general good character, and negative qualities, such as not having serious criminal convictions, not being a habitual drunkard or a drug addict and not suffering from disabling mental or physical infirmity, injury or illness. The Act makes these qualities prerequisites to continued registration as a medical practitioner. (at p369)

6. This character of registration under the Medical Practitioners Act, as a standing certification of the possession of qualities regarded as requisite to the practice of medicine, stands in high contrast to those licences and permits, the holding of which authorizes engagement in some trade or occupation, entry to which is controlled otherwise than merely by reference to the personal qualifications of applicants. In the case of such licences and permits the law, for a variety of policy reasons, limits the number of entrants, thereby creating a monopoly, shared among the permitted entrants; the operation of taxis, the conduct of hotels or lotteries and the growing of certain primary products where quota limits on production exist are all instances of this. In such cases rights of entry, made valuable by their scarcity, are conferred and are themselves capable of exploitation because of their scarcity value. Registration under the Medical Practitioners Act of itself possesses no such value, it merely certifies the possession of necessary personal qualities. It is only by employing those qualities, and not at all from the exploitation of any share of a monopoly in a particular activity, that a medical practitioner derives economic advantage. He may, popularly but inaccurately, be said to share in a monopoly but that will only be because relatively few possess the personal qualities which the law requires as a prerequisite to practise. The distinction between the two emerges most clearly when transferability is considered. Registration which is merely certification of the possession of personal qualities is inherently incapable of transfer to another whereas the right to enter upon and share in an activity, entry to which is controlled by the state and is not dependent merely upon the personal qualities of an intending entrant, will be readily transferable, and its scarcity value realizable, so long as the law permits of such transfer. (at p370)

7. It follows that whatever loss may be suffered following the deregistration of a medical practitioner is no measure of the value of his registration but only reflects the monetary effect of the loss of one or more of those personal qualities which doctors are required to possess if they are to engage in the practice of their profession. It does not flow from any right, civil or otherwise. (at p370)

8. It was as a result of Dr. Dorman's conviction on a number of charges involving dishonesty and upon his relapse into renewed drug addiction that the Diciplinary Tribunal decided that in the public interest he must be removed from the register. When Dr. Dorman sought to have that decision reversed on appeal no question arose respecting any right of a particular value. The question was, rather, whether the proven facts about Dr. Dorman and his conduct were such as properly to lead to the conclusion that, for want of continued possession of some requisite qualities, he was no longer a person who should properly remain on the register. (at p370)

9. For these reasons I conclude that the proceedings before the Court of Appeal did not involve any question respecting any right of Dr. Dorman, civil or otherwise, of any particular value. I have found it unnecessary to determine the precise meaning of "civil right" in s. 35 (3) (b). I do no more than observe in passing that over the past fifty years the expression may have acquired in current usage a meaning rather different from that which it bore in 1903 when it first appeared in the Judiciary Act of that year. The Oxford English Dictionary, which was published only some ten years earlier, gave as the meaning of "civil" in a legal context the sense of being "distinguished from criminal" and, while not ignoring the sense of "pertaining to citizens", contains no separate meaning of the expression "civil right" and, in its many citations of the use of the word "civil", gives only oneinstance of it being descriptive of "right", and then only as opposed to a natural right. In contrast Professor Walker, in his Oxford Companion to Law (1980), devotes over three columns to "civil rights" and a modern American dictionary, Websters' 1976 edition, influenced no doubt by the thirteenth and fourteenth amendments to the United States Constitution and what has flowed from them, includes as a separate entry the composite expression "civil rights" with its now familiar contemporary meaning. As used in s. 35 (3) (b), the expression may mean no more than a right recognized by the civil as opposed to the criminal law - a civil cause of action. (at p370)

10. I have, to date, made no reference to Clyne v. N.S.W. Bar Association (1960) 104 CLR 186 , which was relied upon as showing that no appeal as of right lay in this case. The Court in that case did no more than state that Mr. Clyne's appeal against the order striking his name off the roll of barristers involved "no civil right capable of being valued" (1960) 104 CLR, at p 205 . No reasoning appears which would elucidate the basis for that conclusion. However the conclusion at which I have arrived is certainly not in conflict with the decision in Clyne and my reasons may, indeed, be the same as the unexpressed reasons of the Court in that case. (at p371)

11. I would uphold the objection to competency. There is also before us an application for special leave. It is enough that, consistently with the practice on such applications, I state my conclusion concerning that application without giving reasons for that conclusion. I do not regard this case as one at all appropriate for the grant of special leave; that application is accordingly refused. (at p371)

MASON J. I would uphold the objection to competency and refuse the application for special leave to appeal for the reasons given by Stephen J. (at p371)

MURPHY J. Dr. Dorman appeals of right, or if the objection to the competency of the appeal is upheld, asks special leave to appeal from a judgment and orders made by the Supreme Court of New South Wales that his name was rightly removed from the register of medical practitioners in New South Wales. His name was removed by the Medical Disciplinary Tribunal on 27 August 1980 because he had been convicted of forty-four charges under the Health Insurance Act 1973 (Cth) (briefly of making dishonest claims for payment for medical services between February 1975 and 1 October 1977) and had been found guilty by the Tribunal of being addicted to deleterious drugs between 1 February 1975 and 1 October 1977. (at p371)

2. The competency of the appeal depends on whether the Supreme Court's judgment was a final judgment involving "directly or indirectly a . . . question . . . respecting any property or any civil right amounting to or of the value of $20,000 or upwards" (Judiciary Act 1903 (Cth), s. 35 (3) (b)). The respondents conceded the judgment was a final one, involving (directly or indirectly) a question respecting a civil right, the right to practise a profession, but contended it was a civil right which could not be valued. In Thomas v. Incorporated Law Institute of N.S.W. (1929) 3 ALJ 32 this Court held that an order striking the appellant's name off the roll of solicitors was an order involving a question respecting a civil right of the value of 300 pounds or upwards then requisite for an appeal of right. The same approach was taken without question in Ziems v. Prothonotary of the Supreme Court of N.S.W. (1957) 97 CLR 279 . However, in Clyne v. N.S.W. Bar Association (1960) 104 CLR 186 the Court held a similar appeal of right incompetent on the ground "There is no 'property' that can be said to be involved, and no civil right capable of being valued" (1960) 104 CLR, at p 205 . No reasons were given, in particular none for departing from Thomas's Case.
Right to Practise as Property. (at p372)

3. Property is an extremely wide concept with a long history. In non-legal usage land or a thing (tangible or intangible) is referred to as property. In legal usage property is not the land or thing, but is in the land or thing. Throughout the history of the common law the concept of property has been used to recognise the legitimacy of claims and to secure them by bringing them within the scope of legal remedies. (See Hoare &Co. v. McAlpine (1923) 1 Ch 167, at p 175 ; Muhlker v. New York &Harlem Railroad Co. (1905) 197 US 544, at p 571 (49 Law Ed 872, at p 878) ; Ashby v. White (1703) 2 Ld Raym 938 (92 ER 126) ; Timberg, "Modernized Fair Use Code for the Electronic as well as the Gutenberg Age" Northwestern University Law Review, vol. 75 (1980), p. 193; Lahore, Intellectual Property; Macpherson, Property (1978); Wallace and Grbich, "A Judge's Guide to Legal Change in Property", University of New South Wales Law Journal (1979) vol. 3, 175.) They might first be formulated as social claims with no legal recognition. As they become accepted by reason of social or political changes they are tentatively and then more surely recognized as property. The limits of property are the interfaces between accepted and unaccepted social claims. The great case of Ashby v. White established that the right to vote in elections for Parliament was property and its denial a deprivation, remediable by an action for damages. In Amalgamated Society of Engineers v. Smith (1913) 16 CLR 537, at p 553 Barton A.C.J. stated of a union member seeking to challenge his expulsion: "The foundation of his action is property; for, . . . his right to vote is . . . property". (at p372)

4. In modern legal systems, "property" embraces every possible interest recognized by law which a person can have in anything and includes practically all valuable rights. (Re Lunness (1919) 51 DLR 114 (CA) ; also Corpus Juris Secundum, vol. 73). When used in legislation it should be given its "ordinary" or "natural" comprehensive meaning unless the context or history of the legislation suggests otherwise. The use in s. 35 of the phrase "any property" indicates the broadest sense of the word. (at p373)

5. Numerous text-books and learned articles analyze the right to work or the right to paid employment as a property right or closely akin to a property right. (See Sykes and Yerbury, Labour Law (1980), vol. 1, "Individual Aspects", pp. 119-120; Clayton, "Proprietary Right in Employemtn", Journal of Business Law (1967), p. 139; Brooks, Contract of Employment Principles of Australian Employment Law (1979), pp. 127 et seq.; Discrimination in Employment, Schmidt, ed. (1978), pp. 258- 342, also pp. 410-411; Szakats, Introduction to the Law of Employment (1975), pp. 322 et seq. See also Buckley v. Tutty (1971) 125 CLR 353, at pp 381-382 ; Nagle v. Feilden (1966) 2 QB 633 ; Lloyd v. Brassey (1969) 2 QB 98, at p 102 ; Lee v. Showmen's Guild of Great Britain (1952) 2 QB 329 ; Hill v. C. A. Parsons and Co. Ltd. (1972) Ch 305 ; Langston v. Amalgamated Union of Engineering Workers (1974) 1 WLR 185, at pp 191-192; (1974) 1 All ER 980, at pp 986-987 .) (at p373)

6. Elsewhere property has been held to include a calling, business, or profession chosen and followed: State v. Chapman (1903) 55 A 94, at p 95 ; Scriven v. Scriven (1951) 45 NW 2d 760, at p 765 ; Du Page County v. Henderson (1949) 83 NE 2d 720, at p 725 ; Lasdon v. Hallihan (1941) 36 NE 2d 227, at p 231 ; Wood v. Security Mutual Life Insurance Co. (1924) 198 NW 573 ; Lo Bianco v. Cushing (1935) 177 A 102, at p 103 ; People v. McFarlin (1904) 89 NYS 527, at p 528 ; Parker Paint &Wall Paper Co. v. Local Union No. 813 (1921) 105 SE 911, at p 915 . The right to practise as a priest has been held to be property: O'Hara v. Stack (1879) 90 Pa 477, at p 491 ; also the right to practise law: Application of Dodd (1945) 42 A 2d 36 ; Hobson v. Kentucky Trust Co. of Louisville (1946) 197 SW 2d 454 ; Schware v. Board of Bar Examiners of New Mexico (1955) 291 P 2d 607 ; Menin v. Menin (1974) 359 NYS 2d 721 ; the business of an attorney: Ex parte Steinman and Hensel (1880) 95 Pa 220, at p 237 ; the right to practise medicine, surgery, dentistry and other forms of healing: West Virginia State Medical Association v. Public Health Council of West Virginia (1942) 23 SE 2d 609 ; Sloan v. Mitchell (1933) 168 SE 800 . (See also Corpus Juris Secundum vol. 70, pp. 866-867). Property has been held to include a variety of rights to pursue a vocation such as a seat on a grain exchange: Newton &Co. v. Wolvin and Cathcart &Co. (1931) 2 DLR 337 . (at p374)

7. It is not an essential characteristic of property that it be transferable. The right to vote in Ashby v. White (1703) 2 Ld Raym 938 (92 ER 126) and in Amalgamated Society of Engineers v. Smith was not transferable. Numerous other property rights are non-transferable, for example licences of various kinds. In the United States of America non-transferable rights such as seniority rights in employment have been held to be property: Stephenson v. New Orleans &N.E.R. Co. (1937) 177 So 509, at p 519 ; Watson v. Missouri-Kansas-Texas Railway Co. of Texas (1943) 173 SW 2d 357, at p 362 ; Primakow v. Railway Express Agency (1943) 56 F Supp 413, at p 416 ; Griffin v. Chicago Union Station Co. (1936) 13 F Supp 722, at p 723 ; Grand International Brotherhood of Locomotive Engineers v. Mills (1934) 31 P 2d 971 .
Right to Practise as a Civil Right. (at p374)

8. Property often overlaps with civil rights. It was conceded correctly that Dr. Dorman's deregistration involved a civil right. Rights to practise a profession, trade or other occupation, entry to and remaining in which is governed by law, are classical examples of civil rights. The right to practise medicine, law or any other profession, is a civil right. This was the view acted on in Thomas's Case (1929) 3 ALJ 32 and the same view has been taken in the United States of America (see Miller v. Michigan State Apple Commission (1941) 296 NW 245 ). In Canada civil rights are defined as those rights that are "the outgrowth of civilization, which arise from the needs of civil, as distinguished from barbaric, communities and are given, defined, and circumscribed by such positive laws, enacted by such communities, as are necessary to the maintenance of organised government . . . ": Byers v. Sun Savings Bank (1914) 52 LRA NS 320, at p 323 ; cit. Hill v. Hill (1929) 24 Alta LR 105, at p 112 . They include the right to work: Report of Committee on Civil Liberties, Canadian Bar Review, vol. 22 (1944), 598, at p. 599. Transferability is not essential to the existence of a civil right.
Valuation of the Right to Practise. (at p375)

9. The fact that it may be difficult to place a value on property or on a civil right does not mean it has no value or is incapable of valuation. In Thomas's Case (1929) 3 ALJ 32 the Court had no difficulty in concluding that the civil right to practise as a solicitor in New South Wales was of a value above the statutory requirement. In N.S.W. Bar Association v. Evatt (1968) 117 CLR 177, at p 183 the Court recognized that disbarment may involve "a great deprivation" to the person disciplined. The valuation of pain and suffering, loss of enjoyment of life and physical injury defies precise calculation, but the law does not retreat into asserting that these imponderables can not be valued. For centuries the law has robustly tackled the problem of valuing them. (at p375)

10. The right to be registered as a medical practitioner is obtained only after a course of intensive study of many years at a university. The study impedes the earning of other moneys in other ways (in present money values generally far in excess of $20,000) apart altogether from fees, text-books, and other expenditures. It gives the person an opportunity to earn an income which is very high in this community and to qualify for numerous statutory posts, worth $20,000 or more. If evaluation were based on actual earnings, the appellant earned a salary of $33,000 per year (apart from part-time earnings which were $27,000 per year several years ago). The right to practise does not automatically ensure that remuneration will be earned. This does not mean that the right has no value. The same argument could be put about many other forms of property of civil rights such as licences of various kinds. The right gives the opportunity to earn in a way which is otherwise denied. Also, because Dr. Dorman's registration made him a member of an honoured profession, it greatly enhanced his reputation. The law recognizes that reputation is of value and unlawful injury to it is remediable in an action for damages. In my assessment, on prevailing standards, registration as a medical practitioner is more than $20,000 in value. (at p375)

11. The judgment involves directly a question respecting any property or civil right amounting to $20,000 or upwards. The objection to competency should be overruled. Dr. Dorman is entitled to appeal to this Court as of right.
Removal from the Register. (at p376)

12. Under s. 27, Medical Practitioners Act 1938 (N.S.W.) it is provided that a complaint or charge that any registered person

"(a) has been convicted in New South Wales or elsewhere by any court of any felony, misdemeanour, crime or offence; or (b) has been guilty of habitual drunkenness or of addiction to any deleterious drug; or (c) has been guilty of misconduct in a professional respect; or (d) is not of good character"

may be made to the investigating committee set up under the Act, and s. 29 provides that where any registered person had been adjudged guilty by the disciplinary tribunal established under the Act, that tribunal may by order

"(a) reprimand or caution such person; or (b) suspend such person from practice for a period not exceeding twelve months; or

(c) direct that the name of such person be removed from the register." (at p376)

13. Section 29 (2) of the Act states that where any registered person
". . . has been so adjudged guilty, the tribunal shall not make an order suspending such person from practice or directing that his name be removed from the register where the offence is such that, either from its trivial nature or from the circumstances in which it was committed, or the conduct is such that it does not, in the public interest, disqualify the person from practising his profession." (at p376)

14. "Good character" as used in the Medical Practitioners Act does not mean good character in general; it means good character in a professional medical sense (see Stephen v. Naylor (1937) 37 SR (NSW) 127 (PC) . The appellant's convictions for dishonesty under the Health Insurance Act by use of his mdical registration undoubtedly affected his character, as did his drug addiction. Matters not affecting his character in a professional sense (for example political views or conduct) would be irrelevant to his credit and character (see Cooper v. The Queen (1961) 105 CLR 177, at p 184 ; Wishart's Case Supreme Court of New South Wales; unreported; 4 September 1941. ). (at p376)

15. The appeal is hopeless. Dr. Doorman engaged in systematic dishonesty in his professional capacity in defrauding the health insurance scheme by untrue representations, forgery of names and signatures of patients and non-patients. There is not even the mitigation that this was done to obtain money to purchase drugs for his addiction. During the period of fraudulent claims his addiction was to inexpensive drugs, for which he did not require the money obtained by the frauds. The Medical Disciplinary Tribunal was entitled to apply the policy that in general convictions for offences of obtaining money by dishonest claims against the Health Insurance Scheme should result in deregistration or at least suspension for lengthy periods. It was not reasonably open to the Tribunal to hold that his conduct "does not, in the public interest, disqualify the person from practising his profession". (at p377)

16. The material presented to us showed that Dr. Dorman is rehabilitating himself; that an important factor in the rehabilitation is his employment with the railway solicitor's office; and that in the event of this appeal being unsuccessful, he may still be able to carry on employment there which entails use of his medical knowledge but does not require registration. (at p377)

17. The appeal should be dismissed. (at p377)

AICKIN J. This appeal from the Court of Appeal of the Supreme Court of New South Wales is brought upon the footing that it is an appeal as of right. There is an objection to the competency of the appeal and there is an alternative application for special leave if that objection is upheld. (at p377)

2. The Court of Appeal dismissed an appeal by Dorman (whom I shall for convenience call "the appellant") against an order made by the Disciplinary Tribunal established under s. 28 of the Medical Practitioners Act 1938 (N.S.W.), as amended, directing that the appellant's name be removed from the register of medical practitioners for New South Wales. (at p377)

3. On the question of the competency of the appeal it was argued on behalf of the appellant that the appeal lay as of right by virtue of s. 35 (3) (b) of the Judiciary Act 1903 (Cth) (as amended) on the basis that the proceedings involved the right of the appellant to pracise in New South Wales as a medical practitioner, which right had a value to him in excess of $20,000. (at p377)

4. The appellant is not engaged in private practice as a medical practitioner, though there is some suggestion that he does see some private patients. He is employed by the State Railway Authority of New South Wales as a senior medical officer at a salary which is at present $33,761 per annum. He has been so employed for a number of years and in ordinary circumstances would probably have remained in that employment for some years to come. It was submitted that that employment was dependent upon his retaining the status of a registered medical practitioner and that if his name were removed from the Register his employment would be terminated. It was further submitted that the salary which he would have received in that post was derived from the exercise of his right to practise and that it provided a means of valuing that right. (at p378)

5. It was also said that if his name were removed from the Register he would be dismissed from his employment, the performance of the duties of which required him to be a registered medical practitioner. (at p378)

6. In Clyne v. N.S.W. Bar Association (1960) 104 CLR 186 this Court held that an appeal as of right did not lie from an order striking the name of that appellant from the roll of barristers although his net annual income as a barrister had been, and was likely to be in the future, in excess of the amount then specified in the Judiciary Act in its then form as the requirement for an appeal as of right. The Court held that there was no "property" involved and no civil right capable of being valued. (at p378)

7. That decision appears to me to govern the present case upon the basis on which it was argued. No substantial reason was advanced in support of the view that its reasoning was not applicable to the present case or that it was not correctly decided. A right to practise a profession is, at least in the ordinary case, not capable of valuation. It is incapable of sale or transfer to another person and it carries with it no entitlement to remuneration or certainty of the earning of fees or of employment. (at p378)

8. I should however reserve for future consideration a situation which might appear to bear a close resemblance to the present case. It was not suggested in argument that the present case was of the character which I am about to describe. (at p378)

9. Take a case where the employment of an appellant required that he should hold a specified professional qualification and that the carrying out of his duties as an employee required the exercise of that professional skill, and where his remuneration exceeded $20,000 per year. Suppose further that the terms of his employment provided that so long as he maintained his professional qualification his employment could not be terminated save upon twelve months' notice or upon the payment of twelve months' salary. (at p378)

10. Such a case would not necessarily fall within the ratio of Clyne's Case. The facts of this case do not fall within that example and it was not submitted that they did. Such a situation would raise different questions from those which arise in the present case and those which arose in Clyne's Case. They can be considered if and when such a case arises. (at p378)

11. The appellant also sought special leave to appeal if the Court should uphold the objection to competency of his appeal. The circumstances relevant to the application for special leave to appeal are set out in the reasons for judgment of the Chief Justice and also in the reasons for judgment of my brother Wilson. I do not need to restate those facts. (at p379)

12. I agree with the view expressed by the Chief Justice that there is nothing in the circumstances of the present case to warrant the grant of special leave to appeal and that there is no occasion to elaborate on that conclusion. (at p379)

13. I am therefore of opinion that the objection to competency of the appeal should be upheld and that the application for special leave should be refused. (at p379)

WILSON J. On 27 August 1980 the Disciplinary Tribunal constituted under the Medical Practitioners Act 1938 (N.S.W.), as amended ("the Act"), ordered that the name of Dr. Dorman ("the appellant") be removed from the register of medical practitioners in New South Wales. The order followed on a finding of guilt against the appellant on two complaints. The first complaint was based on the fact of the conviction of the appellant on five charges of forgery, one charge of uttering, and thirty-eight charges of making an untrue representation in breach of the regulations made under the Health Insurance Act 1973 (Cth), as amended. The conduct the subject of these convictions occurred between August 1976 and May 1977. The offences can fairly be described collectively as "Medibank frauds". The second complaint was of addiction to deleterious drugs, namely, pentazocine and valium, between February 1975 and October 1977. The Tribunal's finding of guilt on both these complaints has not been challenged. However, the appellant appealed to the Supreme Court, pursuant to s. 29 (4) of the Act, from the order that his name be removed from the register. The Court of Appeal unanimously dismissed that appeal. (at p379)

2. There are now three proceedings before this Court. The first is an appeal which is claimed to be as of right. The second is an objection by the respondents to the competency of the appeal. The third is an application for special leave to appeal, to be relied upon in the event of the objection to competency being upheld. (at p379)

3. I must begin with the objection to competency. There is an appeal as of right if the proceedings "involve directly or indirectly a . . . question . . . respecting any property or any civil right amounting to or of the value of $20,000 or upwards." (Judiciary Act 1903 (Cth), as amended, s. 35 (3) (b)). The proceedings involve a question as to whether the name of the appellant should remain on the register of medical practitioners. It concerns his status as a registered person. Registration not only clothes a person with professional dignity, it carries with it statutory rights and privileges. It was asserted by the appellant, and accepted for the purposes of argument by the objector, that these rights and privileges satisfied the description of a "civil right" within the meaning of s. 35 (3) (b). It is unnecessary for me to consider whether the concession made by the objector was correct, and I do not do so. These reasons proceed on the assumption that the proceedings involve a question respecting a civil right. (at p380)

4. The substance of the argument in support of the objection to the competence of the appeal is that the civil right in question is not one which is capable of valuation in money terms. The financial consequences resulting from the deregistration are speculative and in any event too remote from the curial order itself: cf. De Bortoli v. Kenny (1948) 76 CLR 453 . An analogy is drawn with a sentence of imprisonment on conviction of a crime, as a consequence of which the offender necessarily loses his employment which returns him a salary in excess of $20,000 per annum. In such a case he is dispossessed of his civil right to liberty, but it could not be said that the loss of that civil right itself had any monetary value. (at p380)

5. On the other hand, the appellant swears by affidavit to facts and circumstances by reason of which he claims that his civil right to remain registered is of a value not less than $20,000. In short, those facts and circumstances amount to this: he has been in permanent employment as a medical officer with the State Rail Authority of New South Wales (or its predecessors) since 1968, with the status of a senior medical officer since 1974; as at 7 January 1981, his annual salary was $33,761.00; it is a necessary qualification for appointment to the position he holds that he be a registered medical practitioner; the consequence of his ceasing for any significant time to be so registered is that his employment would be promptly terminated. These assertions are not challenged by the objectors, but the submission is made that they do not establish that the necessary value or any value attaches to the fact of registration. Reliance is placed upon the authority of this Court in Clyne v. N.S.W. Bar Association (1960) 104 CLR 186 . Clyne claimed an appeal as of right from an order of the Supreme Court of New South Wales that his name be struck off the roll of barristers. The Court, consisting of Dixon C.J., McTiernan, Fullagar, Menzies and Windeyer JJ., expounded the relevant facts of the case and the law in the following terms (1960) 104 CLR, at p 205 :
"The appeal purports to be brought as of right, and there is on the file an affidavit of the appellant in which he states that his net income from his practice as a barrister has for some years been, and, if he continues to practise, is likely to be in the future, in excess of 1500 pounds per annum. The view that an appeal as of right to this Court lies in such a case is supported by the decision of Knox C.J., Gavan Duffy and Rich JJ . . . . in Thomas v. Incorporated Law Institute of New South Wales (1929) 3 ALJ 32 and in Ziems v. The Prothonotary of the Supreme Court of N.S.W. (1957) 97 CLR 279 the appeal was brought as of right without challenge either by counsel or from the Bench. In the present case counsel for the Bar Association expressly declined to challenge the right of appeal, but the point was raised by the Court at an early stage, and it has seemed to us that the question ought now to be considered and decided. We are of opinion that Thomas's Case was not correctly decided and ought not to be followed. It seems clear that the order of the Supreme Court was not given or pronounced for or in respect of a sum or matter at issue amounting to or of the value of 1500 pounds, so that the case does not fall within s. 35 (1) (a) (1) of the Judiciary Act 1903-1959. Nor do we think that it can be brought within s. 35 (1) (a) (2). There is no 'property' that can be said to be involved, and no civil right capable of being valued."
In my opinion, so far as the relevant facts are concerned, it is not possible to distinguish Clyne from the present case. Furthermore, notwithstanding the absence of detailed reasoning, the decision commands the very great respect which is to be accorded to a unanimous, deliberate and considered decision of five members of the Court. It has guided the practice of litigants and of the Court itself for more than twenty years. I would not be prepared to depart from it. In any event, I am far from being persuaded that the decision is erroneous. It seems to me that no monetary value attaches to the fact of registration itself. Professional status is not quantifiable in money terms, however remunerative the practice of the profession may be in particular circumstances. It would be odd if s. 35 (3) (b) was to be so construed as to confer a right of appeal upon an employed medical officer because his salary over a period of time exceeded $20,000, while denying a right of appeal to an honorary surgeon in a large hospital who no longer found it necessary to engage in remunerative private practice. In my opinion, therefore, it is a mistake to seek to attribute a monetary value to a civil right of this description by a computation based on possible financial consequences of a loss of employment which may be expected to result from an order that a practioner's name be removed from the register. Whether those anticipated consequences will eventuate, and, if so, whether or not they will be offset by alternative financial arrangements that may take their place are considerations which not only are too speculative to ground a conclusion but in any event are irrelevant. (at p382)

6. I would therefore uphold the objection, and dismiss the appeal as incompetent. (at p382)

7. There remains the application for special leave to appeal. Mr. Priestley, who appeared for the applicant, presented a full argument on the basis that there was an appeal as of right, and in the course of that argument indicated the matters that were pertinent to the special leave application. Having considered those matters, and having regard to the practice of the Court in special leave applications, it is sufficient for me to say that in my opinion this is not a case in which special leave should be granted. (at p382)

BRENNAN J. I have had the advantage of reading the reasons for judgment of my brother Stephen, and I agree with them. I would therefore uphold the objection to competency of the appeal and refuse special leave. (at p382)

Orders

Objection to competency allowed with costs.

Application for special leave to appeal refused with costs.