Eckersley v Medical Board of Queensland

[1996] QCA 528

IN THE COURT OF APPEAL	[1996] QCA 528
SUPREME COURT OF QUEENSLAND

Appeal No. 147 of 1995

Brisbane

Before Fitzgerald P.
Davies J.A.
Fryberg J.

[Eckersley v. Medical Board of Qld.]

BETWEEN:

STEPHEN JOHN ECKERSLEY Appellant

AND:

MEDICAL BOARD OF QUEENSLAND	Respondent
CASE STATED PURSUANT TO SUB-SECTION 43(1) OF THE MEDICAL ACT 1939

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 20 December 1996

This is an appeal by case stated pursuant to sub-s. 43(1) of the Medical Act 1939 from an order of the

Medical Assessment Tribunal that the name of the appellant, Stephen John Eckersley, be removed from

the Register of Medical Practitioners.

The Medical Board of Queensland had brought a number of charges against Eckersley, each alleging

that he was guilty of misconduct in a professional respect with a female patient or former patient by engaging in inappropriate sexual contact or conduct or, in one instance, inappropriate conversation

during the course of, or, in one instance at the conclusion of, medical consultation and/or psychiatric

therapy. Some of the charges relating respectively to Caroline Dorothy Shorten, Sherryl Alice Maree

Walton, and Isobel Ruth Roberts, each concerned a single occasion. Other charges, relating

respectively to Ms Shorten, Jennifer Ruth Rutledge and Serena Heather Lang, concerned conduct on

“divers dates unknown” in a specified period, and included particulars of the alleged inappropriate

sexual contact or conduct. The order made by the Tribunal removing Eckersley from the Register was

based on findings that each charge was proved.

Question 3 asked in the case stated was “ are any ... of the charges as particularised bad for duplicity?”

That question could only relate to the three charges alleging misconduct in a professional respect by

engaging in inappropriate sexual contact or conduct on “divers dates unknown” in specified periods.

Assuming that the rule against duplicity in a charge of a criminal nature has application to a charge of

professional misconduct before a disciplinary tribunal,[1] the rule was not offended in this instance in which

[1]             See Duncan v. Medical Practitioners Disciplinary Committee (1986) 1 N.Z.L.R. 513, 545; Gee v. General Medical Council [1987] 1 W.L.R. 564.

the material charges alleged that the misconduct in a professional respect was constituted by a course

of conduct, not a single act or event.[2] Question 3 should be answered in the negative.
Question 4 asked whether the Tribunal applied the proper standard of proof. Although the initial

[2]             See Loftus v. Woodworth (1936) V.L.R. 279; Giretti (1986) 24 A.Crim.R. 112; Hamzy (1994) 74 A.Crim.R. 341; Walsh v. Tattersall (High Court of Australia, unreported, 2 October 1996).

submission for Eckersley was that proof beyond reasonable doubt was required, that was abandoned

before this Court. Eckersley accepted that the standard applied by the Tribunal was in accordance with

what was said in the Full Court in Medical Board of Queensland v. Cooke [1992] 2 Qd.R. 608,[3] and

[3]             See also Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd (1992) 67 A.L.J.R. 170.

indicated that question 4 need not be answered. The same point has since been raised and will be

decided in another matter before the Court.[4]

[4]          Ooi v. Medical Board of Queensland (C.A. 4491, 5931 and 6092 of 1996).

The other issues raised by the case stated were related to the Tribunal’s jurisdiction. It is convenient

to set out the material part of the case, including the questions:

“B.	JURISDICTION
(i)	The complaints of complainants Shorten, Walton and Lang were investigated by the Board pursuant to s.37 of the said Act prior to its charging the appellant before the Tribunal in connection with those complaints. In the course of the investigation, the Board appointed a complaints investigation committee pursuant to s.37(3) of the said Act, and that committee took evidence.
(ii)	The appellant was not notified that the complaints investigation committee was to take evidence and was not present or represented when such evidence was taken.
(iii)	The appellant submitted that in those circumstances, the Tribunal had no jurisdiction to hear and determine the charges arising out of those complaints.
(iv)	The Tribunal ruled that the Board and the complaints investigation committee were performing an investigative function and that the appellant had no right to be heard in connection with that function unless and until the Board chose to deal with him pursuant to s.37A of the said Act, which it did not do, and that accordingly, the Tribunal had jurisdiction to proceed to determine the charges.
(v)	No such investigation was undertaken by the Board in connection with the complaints of complainants Rutledge and Roberts.
(vi)	The appellant submitted that the Tribunal had no jurisdiction to determine charges arising out of those complaints in the absence of such an investigation.
(vii)	The Tribunal ruled that ss 36 and 37 of the said Act together authorized the Board to charge the appellant before the Tribunal without itself first investigating the substance of any complaint giving rise to the charge.
QUESTIONS FOR DETERMINATION BY THE COURT OF APPEAL
1.	Did the Tribunal have jurisdiction to determine the charges arising from the complaints by complainants Shorten, Walton and Lang, given that the appellant had not been notified that the complaints investigation committee was to take evidence and was not present or represented when such evidence was taken?
2.	Did the Tribunal have jurisdiction to determine the charges arising from the complaints by complainants Rutledge and Roberts notwithstanding there having been no investigation by the Board pursuant to s.37 of the said Act?”

The material provisions of the Act are ss. 33(1), (1A) and (2), 34(1), 36, 37, 37A, 39 and 41(1),

which, so far as presently material, provide:

“Medical Assessment Tribunal constituted
33.(1) For the better control and discipline of medical practitioners (including
specialists) and for the better determination of prescribed matters having a medical
element there shall be a Medical Assessment Tribunal which shall be constituted by a

judge of the Supreme Court.

(1A) The tribunal shall be a Superior Court of Record.

Supreme Court judge to constitute
(2) Subject to this Act the judge shall have all the powers, jurisdiction, and authority of
a judge of the Supreme Court in and with respect to the exercise by the judge of all or

any of the judge’s powers, authorities, and jurisdiction under this Act.”

“Jurisdiction of the tribunal
34.(1) The tribunal shall have power and authority to hear and determine or, as the case

may require, investigate -

(a)	any charge made against any medical practitioner (including any specialist) under this Act; or
(b)	any application which, under this Act, may be made to the tribunal; or
(c)	any other matter or proceeding which, under this Act, may be referred to or heard and determined by the tribunal, and either in its appellate or original jurisdiction.”

“Institution of proceedings and charges before tribunal

Board may require tribunal to make investigations

36.(1) Subject to this Act, the board may refer to the tribunal for investigation and determination any question as to the conduct or qualifications of any medical practitioner (including any specialist) which, in the opinion of the board, requires investigation in the public interest.

(2) For the purposes of the hearing thereof, any such reference shall be deemed to be

a charge made by the board.

Board to refer matters to tribunal
37.(1) If the board is of opinion that any medical practitioner (including any specialist)

-

...

(d) is guilty of misconduct in a professional respect;

it may proceed to have the medical practitioner concerned charged accordingly before

the tribunal and, upon so doing, shall have the conduct of the charge as prosecutor.

...

(2) Any person aggrieved by any alleged misconduct in a professional respect of a medical practitioner (including a specialist) may make a complaint to the board with respect thereto.

(3) Upon a complaint made to it under subsection (2) the board shall investigate such

complaint and, without limiting its powers to so investigate, may -

(a)	require further particulars of the complaint;
(b)	require the complaint or the particulars of the complaint to be verified by statutory declaration;
(c)	in respect of the complaint, appoint 2 or more of its members to constitute a complaints investigation committee, 1 of whom shall be appointed by the board to be chairperson, and refer the complaint to it for investigation.

(3A) Where the board appoints a complaints investigation committee and refers a

complaint to it under subsection (3)(c), the following provisions shall apply -

(a)	the board may give such directions from time to time to the complaints investigation committee as it thinks fit concerning the exercise by the committee of its powers and the committee shall comply with the directions;
(b)	the complaints investigation committee shall have the same powers as the board has to investigate the complaint as provided for in subsection (3)(a) and (b), and sections 12, 13(1), 13B, 13C, 37B and 40 shall apply as if references therein to the board were references to the complaints investigation committee;
(c)	for the purpose of applying the provisions of the Commissions of Inquiry Act 1950, each member of the complaints investigation committee shall be deemed to be a commissioner, and the chairperson of the complaints investigation committee shall be deemed to be the chairperson, within the meaning of that Act;
(d)	without limiting the effect of paragraph (a), the complaints investigation committee shall investigate the complaint and shall deliver its findings and recommendations to the board, which may act on the findings as if they were its own;
(e)	the board may continue to exercise all of its powers in the investigation of the complaint notwithstanding the reference, and it shall not be bound by the findings and recommendations of the complaints investigation committee.

(4) lf upon such investigation the board is of opinion that the evidence has sufficiently established a prima facie case, it shall proceed to charge the person concerned before the tribunal according to the complaint.

(5) lf upon such investigation the board is of opinion that the evidence has not
sufficiently established a prima facie case it shall dismiss the complaint.

(6) Notwithstanding anything contained in this section, when the Governor in Council directs that the subject matter of any such complaint it to be heard and determined by the tribunal, such direction shall prevail and the tribunal and the board shall give effect thereto.

(7) The tribunal may hear and determine any charge notwithstanding that any complaint

relating to the subject-matter thereof has been dismissed by the board.

When board may impose disciplinary punishment

37A.(l) Where, upon investigation, the board is of opinion -

(a)	that a medical practitioner has been guilty of any misconduct in a professional respect or of any other charge which may be made against that medical practitioner before the tribunal under this Act; and
(b)	that the import of the misconduct or matter of the other charge in question, while not sufficiently serious to warrant the board charging the medical practitioner concerned therewith before the tribunal, nevertheless warrants disciplinary action;

then, subject to this section, the board in lieu of charging the medical practitioner concerned before the tribunal, may according as it shall deem just in the circumstances -

(c)	order that the medical practitioner pay to the board by way of a pecuniary penalty such sum not exceeding 30 penalty units as it shall specify;
(d)	reprimand the medical practitioner;
(e)	adjourn the matter of dealing with the medical practitioner under this subsection for such period not exceeding 12 months as the board thinks fit;
(f)	give such counselling to the medical practitioner as the board thinks fit;

...
(2) Before dealing with a medical practitioner under this section the board shall notify
the medical practitioner in writing of its intention so to deal with the medical practitioner
and shall state in that notice -

(a)	the misconduct in a professional respect or matter of the other charge whereof the medical practitioner is guilty in the opinion of the board; and
(b)	a time not earlier that [sic] 14 days after the date of that notice within which the medical practitioner may make representations in writing to the board, or a time not earlier than 14 days after the date of that notice at which the medical practitioner may appear in person and be heard by the board at a place stated in the notice; and
(c)	that the medical practitioner may elect, in writing given to the board within the time referred to in paragraph (b), to be dealt with by the tribunal in lieu of the board.

(2A) The board and the medical practitioner concerned may in writing agree to waive the foregoing requirements of subsection (2) whereupon the board may deal with the medical practitioner without regard to that subsection.

(3) In dealing with a medical practitioner under this section, the board shall give due consideration and weight to any representations in writing made to it by the medical practitioner within the time allowed by the notice in writing under subsection (2) (if any) and shall hear the medical practitioner if the medical practitioner appears in person before it pursuant to that notice.

(4) Where within the time allowed in his or her case by the notice under subsection (2), a medical practitioner elects in writing given to the board to be dealt with by the tribunal in lieu of the board, the board shall not deal with the medical practitioner under this section.

...”

“How tribunal to conduct its proceedings
39. The tribunal shall, in the hearing of any charge against, or application by or with
respect to, or investigation into any question respecting the conduct or qualifications of,
a medical practitioner (including a specialist) if so required by the board or other
complainant or by the medical practitioner concerning, sit in open court, and every
party to any such proceedings shall have the right to appear either in person or by an

agent, solicitor, or counsel.”

“Disciplinary punishment
41.(1) If the tribunal finds any medical practitioner (including any specialist) guilty of any
charge made against him or her under this Act it may, according as it shall deem just

under the circumstances -

(a)	order his or her name to be erased from the register of medical practitioners, Queensland; or
(b)	order that his or her registration as a medical practitioner be suspended for such time as it shall specify; or
(c)	order that the medical practitioner pay to the board by way of a pecuniary penalty such sum, not exceeding 40 penalty units, as it shall specify.”

Sub-section 37(3A)(b) provides that ss. 12, 13(1), 13B, 13C, 37B and 40 apply in relation to the

investigation of a complaint by a complaints investigation committee “as if references therein to the board

were references to the complaints investigation committee”. The effect of the specified sections, so

modified, is to deem a complaints investigation committee to be a Commission of Inquiry within the

meaning of the Commissions of Inquiry Act 1950 and to apply the provisions of that Act other than ss.

4, 4A, 10(3) and 13; to empower a complaints investigation committee to examine any person on oath

or to take a statutory declaration from any person; to make specified conduct an offence and certain

conduct by a medical practitioner misconduct in a professional respect; to empower the payment of

allowances to witnesses, and, perhaps - see s. 40, which contains no reference to the Board - to permit

certain court records to be received in evidence.

Appeals by case stated are notoriously unsatisfactory, and this case provides no exception.[5] There is

[5]             The position was made even more unsatisfactory in this instance by the Court being provided with an appeal record which wrongly included the entire transcript of the proceeding before the Tribunal except the portion which the Tribunal directed to be attached.

a fundamental problem in that the case nowhere states whether the Board formed either the opinion

provided for by sub-s. 37(1)(d) or the opinion provided for by sub-s. 37(4) in relation to the respective

complaints against Eckersley, and, if so, which opinion it formed in relation to each complaint. While

the heading to the notice of the charges given to Eckersley referred to sub-s. 37(1), each charge

followed a complaint under sub-s. 37(2), and the Board’s powers and procedures in such circumstances are provided for in sub-ss. 37(3) to (5). Under the material portion of sub-s. 37(1)(d),

the Board’s opinion must be that the medical practitioner is “guilty of misconduct in a professional

respect”. Under sub-s. 37(4), following a complaint the Board need only be of opinion “that the

evidence has sufficiently established a prima facie case” that the medical practitioner is guilty of such

misconduct. Importantly, however, if the Board is of opinion “that the evidence has not sufficiently

established a prima facie case”, the complaint must be dismissed by virtue of sub-s. 37(5).[6] Provision

[6]             This provision must be read subject to sub-ss. 37(6) and (7).

is made for an investigation to determine the sufficiency or otherwise of the “evidence” to establish a

prima facie case. I am unable to understand how this statutory scheme can legitimately be subverted

by the Board simply forming an opinion that the medical practitioner is guilty without prior investigation

and charging him or her under sub-s. 37(1)(d) when it has received a complaint of misconduct in a

professional respect.[7] In the circumstances, including the absence of any reference to the Board’s

[7]             It is unnecessary to consider what the position might be if the Board found misconduct different from that alleged in a complaint. There is no suggestion that that occurred on this occasion.

opinion in the case stated or any submission by Eckersley that the Board did not form any opinion

before it charged him, I propose to consider his argument on the basis that the Board had formed the

only opinion which it was required to form, namely, that a prima facie case had been sufficiently

established by evidence that he was guilty of misconduct in a professional respect as alleged in each of

the complaints.[8]
While submissions made on Eckersley’s behalf did not dispute that the Board had formed an opinion

[8] The substance of each charge is an allegation that Eckersley was “guilty of misconduct in a professional respect”, which is the nature of the complaint provided for by sub-s. 37(2); the form of the charges gives no indication concerning whether the Board’s opinion was formed under sub- s. 37(1)(d) or sub-s. 37(4), save insofar as the language used is that of form 2, not form 1, in the first Schedule to the Medical Assessment Tribunal Regulation 1989.

before charging him, he contended, without specifying what opinion it had formed, that it did not validly

do so, and that the Tribunal therefore had no jurisdiction with respect to the charges against him. His

argument must fail if the Tribunal’s material jurisdiction is not dependent on a charge by the Board which

is based on an opinion for which provision is made by the Act. However, it is convenient to start with

the question whether the Board’s power to charge, as distinct from the Tribunal’s jurisdiction, is

dependent on such an opinion.

Medical Board of Queensland v. Byrne (1958) 100 C.L.R. 582 proceeded on the basis that an opinion

of the Board under sub-s. 37(1)(c)[9] - in the circumstance of that case - was a condition precedent to

[9]             The provision was then sub-s. 37(1)(iii).

the charge by the Board. Both counsel accepted that that was so: see per H.J. Gibbs Q.C. at p. 585

and per D. Casey at p. 586. McTiernan J. said at p. 590 “that the tribunal would not be competent to

entertain a charge ... unless the board had arrived at such an opinion”, and, at p. 591, that “...proof of

the opinion is necessary to found the jurisdiction of the tribunal to adjudicate ...”. The other members

of the High Court, Fullagar and Taylor JJ., said in a joint judgment at p. 594:

“... In our view the words in s. 37(1)(iii) - ‘for which in the opinion of the Board he should be subjected to disciplinary punishment under this Act’ - merely prescribe a condition to be satisfied before the board proceeds ‘to have the medical practitioner concerned charged accordingly before the tribunal’. The formation of the opinion which satisfies this condition is, in no sense, any part of a judicial process; on the contrary the requirement that it shall be formed before a charge is preferred is but an administrative safeguard against the formulation of charges before the tribunal based upon convictions for trivial offences or for offences which cannot be thought to call for any disciplinary action under the Act. Accordingly when such a charge is made it is for the tribunal ultimately to determine whether the conviction is in respect of an offence for which the practitioner should be subjected to disciplinary punishment.”

Before this Court, the Board relied on the statement by Fullagar and Taylor JJ. that the “formation of

the opinion which satisfies this condition is, in no sense, any part of a judicial process ...” but merely “an

administrative safeguard” to support the proposition that Eckersley’s argument failed at the threshold

because the Tribunal’s jurisdiction was unrelated to the Board’s opinion. However, when taken in

context, including the passage at p. 594 preceding that quoted, their Honours’ statement was at least

primarily directed to their rejection of an argument that the Board’s opinion was binding on the Tribunal;

it is by no means clear that their Honours were concerned with the relevance of the Board’s opinion to

the Tribunal’s jurisdiction or that they considered that the Tribunal would have had jurisdiction in relation

to a charge by the Board even if the Board had not formed the material opinion specified before

charging the medical practitioner. Like McTiernan J., their Honours accepted that the Board’s opinion

was a “... condition to be satisfied before the board proceeds ...”, a matter directly related to the

Board’s power to charge, not the Tribunal’s jurisdiction in relation to a charge by the Board.[10]

[10] Under the Act, the opinion is required to be formed by the Board, not the Tribunal. The argument in this appeal did not involve reference to cases in which a tribunal’s jurisdiction depends on its opinion or satisfaction with respect to a specified matter or circumstance: see, for example, R. v. Connell, ex p The Hetton Bellbird Collieries Ltd (1944) 69 C.L.R. 407; and R. v. Evatt, ex p The Master Builders’ Association of New South Wales [No. 2] (1974) 132 C.L.R. 150. The difficulties associated with this area of the law are illustrated by two recent decisions of the Full Court of the Industrial Relations Court of Australia, Re Keeley, ex p. Kingham (1995) 129 A.L.R. 255, and Comalco Aluminium (Bell Bay) Ltd v. O’Connor (1995) 131 A.L.R. 657.

The literal meaning of sub-s. 37(4), especially when compared with the language of sub-s. 37(1), clearly

suggests that an opinion under sub-s. 37(4) is a condition precedent to a charge following a complaint.[11]
Multiple complaints might cause inconvenience to the Board if the material requirements of s. 37 are

[11] Note also s. 32CA of the Acts Interpretation Act 1954.

treated as mandatory, to use a term which, although now in disfavour,[12] can still be useful to describe

[12]            See Pearce & Geddes “Statutory Interpretation in Australia”, 4th ed., paras. 11.24 to 11.27.

essential statutory requirements. On the other hand, there is obvious reason why the Board should be

required to satisfy itself that there is substance to a complaint - “that the evidence has sufficiently

established a prima facie case” - before a complaint leads to a charge of misconduct in a professional

respect against a medical practitioner; a failure to do so could, and often might, lead to injustice for the

person charged.[13] The latter consideration is a persuasive reason for treating the Board’s opinion under

[13]            cf. R. v. Epping and Harlow Justices; ex p Massaro [1973] 1 Q.B. 433; Barton v. R. (1980) 147 C.L.R. 75, e.g. at pp. 98-99, 112.

sub-s. 37(4) that a “prima facie case” has been “sufficiently established” by evidence as a statutory

prerequisite to its power to charge conformably with the language of the sub-section.
In my opinion, therefore, the Board would act beyond power in charging a medical practitioner against

whom a complaint had been made of misconduct in a professional respect without first forming an

opinion that a prima facie case of guilt had been sufficiently established by evidence.[14] Such a charge

[14]            There is nothing in the case stated which gives rise to issues of total or substantial compliance or possible waiver of compliance: see, e.g., Essex County Council v. Essex Incorporated Congregational Church Union [1963] A.C. 808.

would be a nullity.[15]

[15]            Compare, for example, R. v. Bacon [1973] 1 N.S.W.L.R. 87; R. v. Parker [1977] V.R. 22; Gouriet v. Union of Post Office Workers [1978] A.C. 435; Pearce & Geddes, paras. 11.20 and 11.21 and cases cited.

Eckersley’s argument largely, if not entirely, assumed that the Tribunal would lack jurisdiction with

respect to such a charge by the Board;[16] it is convenient merely to note at this point that the Tribunal’s

[16]            Even if that is so, it would not necessarily follow that an order by the Tribunal against the medical practitioner would be a nullity. Curiously, by sub-s. 33(1A), the Tribunal is a “Superior Court of Record”. Nonetheless, whether or not an order made by the Tribunal in excess of its jurisdiction would be valid until set aside, the medical practitioner against whom the order was made would be entitled to have it set aside ex debito justitiae: see, for example, Posner v. Collector for Inter- State Destitute Persons (Vic.) (1947) 74 C.L.R. 461; Wilde v. Australian Trade Equipment Co. Pty Ltd (1981) 145 C.L.R. 590; Isaacs v. Robertson [1985] A.C. 97.

material jurisdiction to “hear and determine” a charge (sub-s. 34(1)(a)) and to make an order against
the medical practitioner charged (sub-s. 41(1)), is related to a charge “made ... under” the Act.

Eckersley’s challenge to the validity of the Board’s opinion that a prima facie case had been sufficiently

established by evidence in relation to each of the complaints (and hence the validity of the charges and

to the Tribunal’s jurisdiction) started from the premise that, because complaints had been made, the

Board could only form an opinion that a prima facie case of guilt had been sufficiently established by

evidence after an investigation: see sub-s. 37(3) and (3A).

It was pointed out for Eckersley that there had been no investigation by the Board of the complaints of

Mss Rutledge and Roberts. The effect of the Board’s response was that it was entitled to accept the

complaints of Mss Rutledge and Roberts at “face value” in the context of its concluded investigations

and opinions with respect to the complaints of Mss Shorten, Walton and Lang, and, in that context, to

form the opinion that a prima facie case had been sufficiently established by evidence in relation to the

complaints of Mss Rutledge and Roberts. At least if it has regard to both the protection of patients

from a medical practitioner’s misconduct in a professional respect and the protection of medical

practitioners from false or unjustified complaints, the seriousness of the alleged misconduct complained

of and the need for “evidence”[17] and fairness, it seems to me that the nature and extent of the

[17]            See sub-ss. 37(4) and (5).

investigation referred to in sub-ss. 37(3) and (3A) is largely a matter for the Board’s discretion;

however, para. B(v) of the stated case[18] requires this Court to accept that no investigation was

[18]            Note also the terms of question 2.

undertaken by the Board in relation to the complaints of Mss Rutledge and Roberts before it formed the opinion that it had been sufficiently established by evidence that Eckersley was prima facie guilty of

the misconduct in a professional respect alleged by those complainants.

Eckersley’s argument that the Tribunal lacked jurisdiction with respect to the charges in relation to Mss

Shorten, Walton and Lang was based on a point that was one step more remote. It was accepted that

the Board had investigated the complaints of those women but submitted that the Board’s opinion that

evidence had sufficiently established a prima facie case of his guilt in relation to each of those complaints

was vitiated by a failure to accord him natural justice; this failure was attributed to the investigation of

the complaints of Mss Shorten, Walton and Lang and the formation of an opinion adverse to him in

relation to those complaints without according him the “right ... to be heard, either by way of cross-

examination or submission ...”. Reference was made to Rees v. Crane (1994) 1 All E.R. 833 (P.C.)

in support of a proposition that a medical practitioner must be accorded those rights by the Board (or

a complaints investigation committee) in order to provide him or her with an opportunity to dissuade the

Board from forming, and acting on, an adverse opinion. If this submission is correct, then it is axiomatic

that Eckersley’s argument with respect to the charges in relation to the complaints of Mss Rutledge and

Roberts must also be correct; since there was no investigation concerning those complaints by the

Board, it obviously did not hear Eckersley before forming the opinion that the evidence had sufficiently

established a prima facie case of his guilt.

Before proceeding, it is desirable to emphasise what is involved in Eckersley’s argument. Shortly

stated, it is that the Tribunal’s jurisdiction to “hear and determine”, and make an order against a medical

practitioner on, a charge of misconduct in a professional respect following a complaint is dependent upon not only the existence of an opinion by the Board that the evidence had sufficiently established a

prima facie case of the medical practitioner’s guilt but also that such opinion was formed after an

investigation of the complaint and providing him with the opportunity to be heard in the course of that

investigation.[19]
In my opinion, the Act does require the Board to conduct an investigation before forming an opinion that

[19] The latter issue, like the former, depends largely on the construction of the Act: see, for example, Kioa v. West (1985) 159 C.L.R. 550, 584.

evidence has sufficiently established a prima facie case that a medical practitioner is guilty of misconduct

in a professional respect following a complaint. Quite apart from the statutory language of sub-s. 37(3)

- “shall investigate”[20] - the statutory purpose of an investigation, namely to ensure whether a charge is

[20] See also s. 32CA of the Acts Interpretation Act.

warranted - “the evidence has sufficiently established a prima facie case” - might be easily defeated if

the apparent requirement that an investigation be held merely left the Board with a discretion whether

or not to do so.
On the other hand, I do not think that the Board is necessarily required to give the medical practitioner

an opportunity to be heard before forming an opinion that evidence has sufficiently established a prima

facie case that he or she is guilty of misconduct in a professional respect. Rees does not seem to me

to support the conclusion for which Eckersley contended; it merely affirms and applies well-established

principles[21] to a particular statutory regime, and the cases cited with apparent approval at p. 844 clearly

[21]            See also, for example, National Companies & Securities Commission v. The News Corporation Ltd

indicate that there is no general principle that an investigative body must not charge a person before

giving him or her an opportunity to be heard, especially when a charge must lead to a full hearing at

which the person charged is entitled to be represented. While a charge against a medical practitioner

alleging misconduct in a professional respect is no doubt of considerable significance to the medical

practitioner charged, sub-s. 37(1)(d) makes it clear that such a charge can be laid by the Board without

any complaint or investigation, and Byrne conclusively establishes that, if that course is followed, the

medical practitioner has no right to be heard before being charged. In my opinion, sub-ss. 37(2)-(5)

similarly do not impose a general requirement that the Board or a complaints investigation committee

hear the medical practitioner before a charge is laid under sub-s. 37(4). While the possibility that the

rights contended for by Eckersley might be necessary to ensure fairness in the circumstances of a

particular case can be left open, no matters which might have given rise to such rights in this instance

were disclosed by the case stated.

It follows, in my opinion, that while the challenge to the Board’s opinion in relation to the complaints of

Mss Shorten, Walton and Lang fails, its opinion with respect to the complaints of Mss Rutledge and

Roberts was vitiated by its omission to investigate those complaints. The further consequence is that it had no power to charge Eckersley in relation to those complaints because a pre-condition of the

exercise of that power was not satisfied.

It remains to be considered whether those charges were nonetheless “made ... under” the Act for the

purposes of sub-ss. 34(1)(a) and 41(1). Given Eckersley’s acceptance that the Board held the opinion

that the evidence sufficiently established a prima facie case of his guilt in relation to each complaint and

that that opinion formed the basis of the charges, his argument must be that charges based on an opinion

formed without compliance with the Act were not “made ... under” the Act. On this argument, not only

must the Act be the source of the Board’s power to charge, the power must be exercised in conformity

with the Act or the charge is not “made ... under” the Act.

(1984) 156 C.L.R. 296.

While such a submission does not lack logical force, no authority was cited to support it. The meaning

of a phrase such as “under this Act” (or Part or Section) has been considered from time to time,[22] most

[22]            See, for example, R. v. Clyne ex p Harrap [1941] V.L.R. 200; Thompson v. Formichi (1967) 18 L.G.R.A. 431; Hudson v. Vanderheld (1968) 118 C.L.R. 171.

recently in connection with the phrase “under an enactment” in the Administration Decisions (Judicial

Review) Act 1977 (Cth.) and the Judicial Review Act 1991; the accepted view is that, in that context,

“under” means “in pursuance of” or “under the authority of”, or, in other words, that the Act is the

source of the material power.[23] Further, in that and a number of other contexts, it has been held that

[23]            See, for example, The Minister for Immigration and Ethnic Affairs v. Mayer (1985) 157 C.L.R. 290, 295; Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321, 377; McLean v. Gulliver (1994) 121 A.L.R. 537, 544; Lewins v. Australian National University (1995) 133 A.L.R. 452, 460.

an act which was purportedly done “under” a statute was done “under” the statute even though not

authorised by the statute, if done in good faith.[24]

[24]            See Little v. the Commonwealth (1947) 75 C.L.R. 94, 108; Thompson at pp. 437-438; Evans v.

There is little, if any, practical difference between such a construction of the word “under” in sub-ss.

34(1)(a) and 41(1) and a conclusion that it is the factual existence of an appropriate opinion which is

the statutory prerequisite to the Board’s power to charge, so that a charge made on the basis of an

opinion which meets the statutory description is a charge “made ... under” the Act, irrespective of any

legal deficiency in the process by which the opinion was formed and its effect on the legal status of the

opinion. I prefer this approach to that advocated for Eckersley. It is at least consistent with the wider

view of the passage from the judgment of Fullagar and Taylor JJ. in Byrne, which is quoted above, and

seems to me to give a more practical operation to the Act and thus to more probably give effect to the

purpose of the legislature, which is unlikely to have intended that Tribunal proceedings might routinely involve a collateral inquiry into the formation of a preliminary opinion by the Board or that the Tribunal’s

proceedings might be delayed or its decisions on the merits called in question by reference to Board

errors.

In my opinion, therefore, Eckersley failed to establish that the Tribunal lacked jurisdiction in relation to

any of the charges, and questions 1 and 2 should be answered in the affirmative.

Friemann (1981) 53 A.L.R. 229.

In summary, I would answer the questions asked:

1.          Yes.

2.          Yes.

3.          No.

4.          Unnecessary to answer.

Under s. 45 of the Act, the Court may make such order as it considers proper and may make an order

with respect to costs. I would order that the appeal be dismissed, with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 147 of 1995
Brisbane
[Eckersley v Medical Board of Qld]
BETWEEN:

STEPHEN JOHN ECKERSLEY

Appellant

AND:

MEDICAL BOARD OF QUEENSLAND

Respondent

CASE STATED PURSUANT TO

SUB-SECTION 43(1) OF THE MEDICAL ACT 1939

Fitzgerald P
Davies JA

Fryberg J

Judgment delivered 20 December 1996

Separate reasons for judgment of each member of the Court, all concurring as to the order to be made.

THE QUESTIONS RAISED BY THE STATED CASE ARE ANSWERED AS FOLLOWS:

QUESTION 1: DID THE TRIBUNAL HAVE JURISDICTION TO DETERMINE THE CHARGES ARISING FROM THE COMPLAINTS BY COMPLAINANTS SHORTEN, WALTON AND LANG, GIVEN THAT THE APPELLANT HAD NOT BEEN NOTIFIED THAT THE COMPLAINTS INVESTIGATION COMMITTEE WAS TO TAKE EVIDENCE AND WAS NOT PRESENT OR REPRESENTED WHEN SUCH EVIDENCE WAS TAKEN?

ANSWER:  YES

QUESTION 2: DID THE TRIBUNAL HAVE JURISDICTION TO DETERMINE THE CHARGES ARISING FROM THE COMPLAINTS BY COMPLAINANTS RUTLEDGE AND ROBERTS NOTWITHSTANDING THERE HAVING BEEN NO INVESTIGATION BY THE BOARD PURSUANT TO S.37 OF THE SAID ACT?

ANSWER:	YES
QUESTION 3:	WAS ANY ONE OF THE CHARGES AS PARTICULARISED BAD
FOR DUPLICITY?
ANSWER:	NO

QUESTION 4: WHAT IS THE APPROPRIATE STANDARD OF PROOF FOR PROCEEDINGS IN THE TRIBUNAL WHERE A PRACTITIONER IS CHARGED WITH MISCONDUCT IN A PROFESSIONAL RESPECT?

ANSWER:  UNNECESSARY TO ANSWER.

THE APPELLANT TO PAY THE RESPONDENT'S COSTS OF THE APPEAL TO BE

TAXED.

CATCHWORDS:	MEDICAL PRACTITIONERS - discipline, and removal from register - procedure, evidence and appeal - Queensland - jurisdiction of Medical Assessment Tribunal - validity of charge - preliminary
investigation and opinion of Medical Board.
The Medical Act 1939, ss.34(1)(a), 37.
Counsel:	Mr J A Griffin QC, with Mr R L Clutterbuck for the appellant Mr R Hanson QC for the respondent
Solicitors:	Nall Payne Craswell for the appellant Gilshenan and Luton for the respondent

Hearing Date: 23 September 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 147 of 1995
Brisbane
Before Fitzgerald P

Davies JA Fryberg J

[Eckersley v Medical Board of Qld]

BETWEEN:

STEPHEN JOHN ECKERSLEY

Appellant

AND:

MEDICAL BOARD OF QUEENSLAND

Respondent

CASE STATED PURSUANT TO

SUB-SECTION 43(1) OF THE MEDICAL ACT 1939

REASONS FOR JUDGMENT - FRYBERG J.

Judgment delivered 20 December, 1996

An appeal by way of case stated lies to the Court of Appeal by any person aggrieved by a

decision of the Medical Assessment Tribunal on the ground "that the decision is erroneous in point of

law, or is in excess of jurisdiction".25 The first two issues relate to whether the Tribunal had jurisdiction

to hear the charges against the appellant in the circumstances set out in the stated case. Those issues,

formulated as questions, and the facts asserted by the appellant to give rise to them, have been set out

in the judgment of the President, which I have had the benefit of reading.

Jurisdiction is conferred on the Tribunal by s.34 of the Medical Act 1939 ("the Act"):

"34. (1) The tribunal shall have power and authority to hear and determine or, as the

case may require, investigate -

(a)	any charge made against any medical practitioner (including any specialist) under this Act; or
(b)	any application which, under this Act, may be made to the tribunal; or
(c)	any other matter or proceeding which, under this Act, may be referred to or heard and determined by the tribunal, and either in its appellate or original jurisdiction."

In the present case the Tribunal was exercising original jurisdiction26. Generally speaking, that

jurisdiction is adjudicatory; exceptionally, it is inquisitorial27. Adjudicatory jurisdiction conferred by

s.34 takes a number of forms and may be invoked by a variety of procedures. These are described by

a variety of terms: reference28, review29, application30, direction31 and charge32. The present

proceedings were brought by the respondent by way of charge, alleging misconduct by the appellant,

a medical practitioner, in a professional respect. Jurisdiction therefore depended upon s.34(1)(a) of the

Act.

It is important to identify the statutory source of the Tribunal's jurisdiction because although the

Tribunal is constituted as a superior court of record33, it is not a superior court of record of unlimited

jurisdiction. Whatever the position may be in England, superior courts of record of limited jurisdiction

are known to the law in this country34. Section 34(1) operates to limit the Tribunal's jurisdiction to

matters35 "under this Act". That is so, despite the terms of s.33(2) of the Act:

"(2) Subject to this Act the judge shall have all the powers, jurisdiction, and authority of a judge of the Supreme Court in and with respect to the exercise by the judge of all or any of the judge's powers, authorities, and jurisdiction under this Act."

That provision is rather opaque; and it is unnecessary in the present case to explore the full extent of its

operation. It suffices to say that notwithstanding the use of "jurisdiction", the function of the subsection

is to confer ancillary powers (including, perhaps, powers to grant remedies). No doubt the subsection

is apt to confer on the judge constituting the Tribunal the power to punish for contempt: that power is

recognised by s.12(2). To that extent the Tribunal has more of the characteristics of the historical

superior courts of record than did the old Commonwealth Industrial Court36. But s.33(2) does not

equate the jurisdiction of the Tribunal to that of the Supreme Court. Subject to the Constitution,

ascertaining the limits of the Tribunal's jurisdiction is a matter of statutory construction. In this case, the

jurisdiction of the Tribunal over the charges depended upon the construction of s.34(1)(a) of the Act,

and its application to the circumstances of the case.

According to the stated case, the relevant facts were as follows. The respondent charged the

appellant with numerous acts of misconduct in a professional respect upon the complaints of five

different female complainants. All the charges were expressly made under s.37(1) and the facts alleged

in them asserted the elements of s.37(1)(d), except the opinion therein specified, and not those of any

other provision. The complaints of three of the complainants were investigated by the Board pursuant

to s.37 of the Act prior to its charging the appellant before the Tribunal in connection with those

complaints. The investigating committee, appointed pursuant to s.37(3), took evidence in the course

of its investigation but the appellant was not notified that this was to occur, nor was he present or

represented when it did occur. No investigation of the complaints of the other two complainants was

undertaken by the Board.

The provisions of the Act under which such charges may be made are contained in s.37 which

provides (as far as relevant):

"37. (1) If the board is of opinion that any medical practitioner (including any specialist)

-

(a)	has had the qualification upon which he or she relied for registration as a medical practitioner withdrawn or cancelled by the university, college, or other body by which it was conferred; or
(b)	has had his or her name erased or suspended from the register of any other body duly authorised to register medical practitioners; or
(c)	has been convicted in Queensland of an indictable offence, or has been convicted in any other part of Her Majesty's dominions or elsewhere of an offence which would be indictable if committed in Queensland, or has been convicted in Queensland or in any other part of Her Majesty's dominions or elsewhere of any other offence for which in the opinion of the board he or she should be subjected to disciplinary punishment under this Act: or
(d)	is guilty of misconduct in a professional respect;

it may proceed to have the medical practitioner concerned charged accordingly before

the tribunal and, upon so doing, shall have the conduct of the charge as prosecutor.

...

(2) Any person aggrieved by any alleged misconduct in a professional respect of a medical practitioner (including a specialist) may make a complaint to the board with respect thereto.

(3) Upon a complaint made to it under subsection (2) the board shall investigate such

complaint and, without limiting its powers to do so investigate, may -

(a)	require further particulars of the complaint;
(b)	require the complaint or the particulars of the complaint to be verified by statutory declaration;
(c)	in respect of the complaint, appoint 2 or more of its members to constitute a complaints investigation committee, 1 of whom shall be appointed by the board to be chairperson, and refer the complaint to it for investigation.

...

(4) If upon such investigation the board is of opinion that the evidence has sufficiently established a prima facie case, it shall proceed to charge the person concerned before the tribunal according to the complaint.

(5) If upon such investigation the board is of opinion that the evidence has not

sufficiently established a prima facie case it shall dismiss the complaint."

The appellant argued that the Board was not authorised to bring complaints in relation to the

first three women because of its failure to notify him of the investigatory hearing and to permit him to be

heard at that hearing. In relation to the other two women, he argued that where a complaint was made

to the Board, an investigation under s.37(3) was mandatory and that in its absence, it was not open to

the Board to form the opinion described in s.37(1).

I have already observed that jurisdiction in this case depended upon whether the charges were

made "under this Act" within the meaning of s.34(1)(a). It was implicit in the argument for the appellant

that the charges could not satisfy that description unless they were made in every respect in conformity

with the section which authorised them, namely s.37(1)(d). The case stated accepts that the appellant

was a medical practitioner, and it was not argued that the subject matter of the charges could not

amount to misconduct in a professional respect. The only other element of s.37(1)(d) is the opinion of

the Board. The first question must therefore be, to what extent does the opinion of the Board affect

whether the charges were made "under this Act".

The solution to this question is not in my judgment to be found in grammar or semantics. Those

studies favour neither an affirmative nor a negative answer to the question. Some insight is however

gained from the function of the opinion which the Board must form. Under s.37(1), the opinion in

question is not only a condition of having the practitioner charged; it also defines the charge. The

practitioner must be "charged accordingly" - that is, charged in accordance with the opinion that he has

done or suffered a matter set out in paragraphs (a) to (d). Those paragraphs define the types of matters

which may be the subject of a charge. They do so in terms of objective events of a particular type

relating to practitioners. They are perfectly adequate to give content to the expression "charged ...

under this Act".

It is difficult to see why the opinion required by s.37(1) should be part of the definition of the jurisdiction of the Tribunal, as opposed to a limitation on the operations of the Board. From the point of view of jurisdiction, why should the opinion of the Board matter? If in terms the charge is of a type

described in one of paragraphs (a) to (d), a workable and functional definition of the jurisdiction of the

Tribunal results. If in addition the jurisdiction is dependent upon the valid existence of the Board's

opinion, the way is open for the Tribunal to be drawn into a further investigation, the outcome of which

appears to serve no useful purpose. Traditionally jurisdiction has been defined in terms of subject

matter, not in terms of the prosecutor's opinion. No reason appears why the legislature should have

adopted a different approach in respect of s.37(1).

We were not referred to any authority directly in point, but we were referred to a case which

is closely analogous. In Medical Board of Queensland v Byrne37, the practitioner was charged under

what is now s.37(1)(c) with having been convicted of an offence for which in the opinion of the Board

he should be subjected to disciplinary punishment. The charge followed the form of s.37(1)(c) which,

read as a whole, rather clumsily requires the Board to form an opinion that the offence was one for

which in its opinion the practitioner should be punished. In the Tribunal and in the Full Court it was

either assumed or held that the existence of the second opinion was an element of the offence and that

proof of the existence of that opinion was all that was required to prove that element. In other words,

it was assumed (or held) that the Tribunal should not form its own view on whether the offence was one

for which the practitioner should be punished. On this basis, the Full Court held that the failure of the

Board to give the practitioner the opportunity to be heard before forming its opinion rendered that

opinion a nullity.

In the High Court, it was unanimously held that this approach was wrong. In the course of

finding that it was for the Tribunal ultimately to determine whether the conviction was in respect of an

offence for which the practitioner should be subjected to disciplinary punishment, Fullagar and Taylor

JJ said:

"Much might be said for such a final conclusion if, upon the true construction of the relevant provisions, the opinion of the board should be regarded as a definite and substantive factor binding upon the tribunal or if, in forming its opinion, the board could be said to be acting in a judicial capacity. It is, however, in its initial stages that the argument advanced by the respondent both here and in the Supreme Court breaks down. In our view the words in s.37(1)(iii) - 'for which in the opinion of the Board he should be subjected to disciplinary punishment under this Act' - merely prescribe a condition to be satisfied before the board proceeds 'to have the medical practitioner concerned charged accordingly before the tribunal'. The formation of the opinion which satisfies this condition is, in no sense, any part of a judicial process; on the contrary the requirement that it shall be formed before a charge is preferred is but an administrative safeguard against the formulation of charges before the tribunal based upon convictions for trivial offences or for offences which cannot be thought to call for any disciplinary action under the Act."

On the other hand, McTiernan J said:

"The only consequence of the opinion of the board, if adverse to the medical practitioner, to which the Act points, is that he is to be charged before the tribunal and that there he is to have a judicial trial. It also follows from the words of cl. (iii) relating to the opinion of the board that the tribunal would not be competent to entertain a charge based upon a conviction for an offence which is not indictable unless the board had arrived at such opinion."

Although the opinion in question in that case was the "secondary opinion" relevant to the particular

charge, I can see no reason why their Honours' observations should not apply equally to the opinion

referred to in the opening words of the section.

In assessing these passages it must be remembered that their Honours were not particularly
concerned to determine what consequences might flow in the event that the Board did not form the

relevant opinion, or formed it by an unlawful process. For that reason, neither counsel had made

submissions on that question; it was not essential to the decision in that case. The passages quoted are

therefore technically obiter. But they are influential dicta and deserve to be treated with respect.

It seems to me that the passages quoted are in opposition to each other. On the view of

McTiernan J, the Tribunal would not be competent to entertain a charge unless the Board had arrived

at the relevant opinion and (it must be understood) had done so validly. On the other hand, in the view

of Fullagar and Taylor JJ, the opinion of the Board was "in no sense any part of a judicial process". It

was "an administrative safeguard against the formulation of charges before the Tribunal based on

convictions for trivial offences ...". In my judgment it is implicit in that passage that their Honours

thought the opinion was no more than an administrative safeguard. They did not think it was a

jurisdictional fact. In my judgment, their opinion was correct, and that of McTiernan J was wrong.

The only other case of which I am aware that might be thought to bear upon the question is

Minister for Health v Ancient Order of Foresters Friendly Society in Queensland (Trustees)38.

In that case the National Health Act 1953 provided that where the Minister was of the opinion that

it was necessary or proper to do so, he might apply to the court for the winding-up of a fund under that

Act. In an ex tempore judgment, Sheppard J refused to infer the existence of the requisite opinion from

the mere fact of the making of the application, and required proof of it. It does not appear from the

report, and I do not know, whether it was argued that proof was unnecessary; nor does it appear whether the issue was one of jurisdiction or of power. No reference was made in the judgment to

Medical Board of Queensland v Byrne. In these circumstances, I do not find the case of any

assistance in resolving the problem before us.

The view that a valid opinion of the Board is not a jurisdictional fact for the Tribunal accords

with the statutory purpose and constitution of the Tribunal. The Tribunal is created "for the better

control and discipline of medical practitioners (including specialists) and for the better determination of

prescribed matters having a medical element"39. It is, in other words, a specialist tribunal concerned

with medical matters. It does not seem to me to be part of that statutory purpose that the Tribunal, in

the course of determining its jurisdiction, be required to become involved in questions of administrative

law relating to the legality of the formation of an opinion by the Board. At the time the Medical Act

1939 was passed, questions of that nature would ordinarily have arisen in the course of proceedings for

prerogative writs, which were ordinarily determined in the Full Court in the exercise of a original, not

appellate, jurisdiction40. It seems unlikely that Parliament intended to confer jurisdiction in relation to

such questions on a single judge whose duty it was to take advice from two assessors on any question

of fact which might arise before him or her41. That would have been a clumsy way to resolve such

questions at that time; and it is still a clumsy way to resolve them. I see no change in social

circumstances in the 57 years since the Act was passed which would suggest that it ought to have a

different operation today. Nor does the fact that administrative decisions are now ordinarily challenged
by means of proceedings under the Judicial Review Act 1991 affect the position.

I would add that nothing in what I have said is intended to suggest that the Tribunal lacks the

power to investigate the opinion of the Board if that opinion is relevant to an allegation that proceedings

are an abuse of process of the Tribunal. That might occur, for example, if proceedings were brought

in the complete absence of the relevant statutory opinion. Those are not the facts in the stated case

here; and in any event, abuse of process does not deny jurisdiction.

If the opinion which the Board must form under s.37(1) is immaterial to the jurisdiction of the

Tribunal, it follows that failure to undertake an investigation or making an unlawful investigation under

s.37(3) must also be irrelevant to the jurisdiction of the Tribunal. There is no other element of s.37(1)

upon which they could have any impact.

In my judgment, the Tribunal acted within its jurisdiction.

It follows from the foregoing that it is strictly unnecessary to determine the precise ambit of the

Board's duties under s.37. However in deference to the extensive argument addressed to the court by

Mr Griffin QC on behalf of the appellant, I will state my views on this aspect of the appeal. Mr Griffin

submitted that upon its proper construction, s.37 required the complaints investigation committee to

accord the appellant natural justice by notifying him of the proceedings in respect of the first three

complainants and giving him the right to be represented and to cross-examine witnesses. He argued that

this followed not from the circumstances of the particular case, but as a matter of construction of the Act, in every case. I agree with the President that s.37 should not be construed so as to impose a

requirement that the Board or a committee hear the practitioner before a charge is laid under s.37(4).

That is not to say that there could not be a case in which the rules of natural justice gave rise to such

a requirement. It simply means that the Act does not impose it as a requirement in every case without

regard to the circumstances.

I would also add that even if it were necessary to allow the appellant to be heard before the

committee, that would not affect the outcome of this appeal. The charges were not brought under

s.37(4); they were brought under s.37(1). That appears from the form of the charges themselves42.

They are in form 2 of the forms prescribed under the Medical Assessment Tribunal Rules 1987. That

form is headed, "Notice of Charge under Section 37(1)" and follows a form of words consistent only

with that subsection. As I have already observed, the facts alleged in the charges asserted the elements

of s.37(1)(d), (except for the opinion therein specified). They did not assert the elements of s.37(4).

There is nothing in the stated case which would allow the appellant to attack the charges under s.37(1).

It should be noted that s.37(1) requires the formation by the Board of a quite different opinion

from that referred to in s.37(4). The former requires the Board to be of opinion that (relevantly) the

practitioner is guilty of misconduct in a professional respect. The latter requires only that the Board be

of opinion that the evidence has sufficiently established a prima facie case. It is therefore open to,

indeed mandatory for, the Board to lay a charge if a prima facie case is established by the investigation,

notwithstanding that it does not itself hold the opinion of guilt required by s.37(1)(d).

There is another difference of significance also. Section 37(4) requires the Board to charge the

person concerned "according to the complaint"43, whereas there is no such limitation under s.37(1).

It is easy enough to imagine cases where the Board might be satisfied after an investigation of a

complaint that a prima facie case had not been made out in accordance with the complaint, but that

other matters were disclosed which led it to the opinion that the practitioner had been guilty of

misconduct in a professional respect. An example might be where the person aggrieved was the

husband of the patient and his complaint contained erroneous hearsay. A complaint under s.37(1) could

follow such an investigation.

Those differences reflect the different role which the Medical Board plays when a complaint is

made, investigated and acted upon (ss.37(2)-(5)) from that which it plays when it forms an opinion

under s.37(1). Subsections (2) to (5) are in my judgment essentially consumer protection provisions.

They are primarily designed for the benefit of aggrieved persons. The investigation is obligatory to

ensure that aggrieved persons' complaints are dealt with, not ignored. The same is true of the Board's

obligation to charge the person concerned according to the complaint if the investigation discloses a

prima facie case. The Board's role appears to be to act as a filter between the complainant and the

Tribunal. That interpretation of those subsections is confirmed by the speech in 1939 of the Secretary

for Health and Home Affairs on the initiation of Medical Bill in Committee44. If, contrary to s.37(3),

the Board failed to investigate a complaint, it is difficult to imagine a set of circumstances in which the practitioner would be a "person aggrieved" within the meaning of Judicial Review Act 1991. However

that may be, I see no reason why subsections (2) to (5) should in any way be construed as inhibiting the

power of the Board to form an opinion and proceed under s.37(1).

As to the two complainants in respect of whom the Board undertook no investigation at all, Mr

Griffin argued that the omission constituted a breach of s.37(3). As a result, he argued, the Board could

not exercise its power under s.37(4); nor could it exercise its power under s.37(1)(d). Mr Griffin

argued that where a complaint of misconduct in a professional respect was made, an investigation was

a condition precedent to the power of the Board to lay a charge. For this reason, he argued, the Board

could not simply form an opinion under s.37(1) by reading the statement of the complainant.

It should be observed that it is not said in the stated case that the Board did not form the opinion

prescribed in s.37(1)(d). All that is said is that there was no investigation under s.37(3). I can see

nothing in the wording of s.37 to support the view that in cases where the Board receives a complaint,

it is prohibited from forming the opinion described in s.37(1)(d), or from acting upon that opinion by

having the practitioner charged thereunder, if it has not carried out an investigation under s.37(3). Nor

can I see any reason of policy or utility to support such an interpretation. It may be that the Board could

not form the opinion described in s.37(4) in the absence of an investigation; but as I have already

observed, that opinion is a quite different opinion from the opinion referred to in s.37(1)(d).

The only other matter argued on the appeal was whether some of the charges were bad for

duplicity. On that topic, I agree with what has been said by the President and have nothing to add.

The questions raised by the stated case should be answered as follows:

Q1	Did the Tribunal have jurisdiction to determine the charges arising from the complaints by
complainants Shorten, Walton and Lang, given that the appellant had not been notified that the
complaints investigation committee was to take evidence and was not present or represented
when such evidence was taken?
Yes
Q2	Did the Tribunal have jurisdiction to determine the charges arising from the complaints by
complainants Rutledge and Roberts notwithstanding there having been no investigation by the
Board pursuant to s.37 of the said Act?
Yes
Q3	Was any one of the charges as particularised bad for duplicity?
No
Q4	What is the appropriate standard of proof for proceedings in the Tribunal where a practitioner
is charged with misconduct in a professional respect?
Unnecessary to answer.

The appellant should pay the respondent's costs of the appeal to be taxed.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 20 December 1996

The relevant facts, terms of the case stated and statutory provisions are set out in the reasons

for judgment of the President and Fryberg J. I do not propose to repeat any of those here except for

the purpose of explaining the conclusions which I have reached.

Questions 1 and 2 of the case stated question the jurisdiction of the Tribunal to determine

charges; the first on the basis that the appellant had not been notified that the Complaints Investigation

Committee was to take evidence and that he was not present when it did; the second on the basis that

two of the complaints had not been investigated by the Complaints Investigation Committee.

The jurisdiction of the Tribunal depends on the making of a valid charge: Medical Act 1939,

s.34(1)(a). There were two bases upon which the Board might have charged the appellant under s.37;

the first, an opinion of the Board that the appellant was guilty of misconduct in a professional respect

(sub-s.(1)); the second an opinion of the Board that, upon an investigation by it of a complaint made,

the evidence established a prima facie case of such (sub-s.(4)); the second requiring a lower standard

of satisfaction than the first[45]. These are separate bases for charging. A charge made under sub-s.(1)

[45]

may be made notwithstanding that there has been no complaint under sub-s.(2) and also, in my view,

where a complaint has been made. Sub-sections (3), (4) and (5) serve the dual purpose of ensuring

that, when a complaint is made, it is not ignored; and that, where a complaint is made, the Board is

satisfied that there is, at least, a prima facie case before a practitioner is charged. They are not intended

to limit the operation of sub-s.(1) where the higher standard of satisfaction has been reached. The

relevant charges here were, on their face, on the first basis and it was not in question on the case stated

that the Board formed an opinion under sub-s.(1).

If the conclusions reached in the preceding paragraph are correct, the answers to questions 1

and 2 are clear. An investigation by the Complaints Investigation Committee was not a pre-requisite

to the formation of an opinion under sub-s.(1). And if that was so, the failure to accord to the appellant

the rights which he claims he was entitled to in the investigation which did take place could not be a pre-

requisite either.

The third question posed was whether any of the charges as particularized was bad for

duplicity. I agree that none was for the reasons given by the President. I agree with the answers to the

questions and the orders proposed by Fryberg J.

1. Medical Act 1939, s.34(1).

26             As to the appellate jurisdiction of the Tribunal, see ibid, ss.21, 30M, 31D and 48.

27 Section 34(1)(c) covers investigation of matters referred by the Governor-in-Council under s.6 of the Act.

1. Ibid, ss.20, 38.

2. Ibid, s.32.

3. Ibid, ss.41, 63.

4. Ibid, s.37(6).

5. Ibid, ss.36, 37(1), 37(4). As might be expected, the variety of jurisdiction and procedure has produced confusion and inconsistency within the Act. None too soon, the Act is currently being reviewed: see *

33             Section 33(1A).

1. R. v. Ross-Jones, ex parte Green (1984) 156 CLR 185; Jackson v. Sterling Industries Limited (1987) 162 CLR 612.

35             In the case of paragraph (a), "any charge".

36             See R. v. Forbes, ex parte Bevan (1972) 127 CLR 1.

37 (1958) 100 CLR 582.

38 (1983) 74 FLR 381.

39             Section 33(1).

1. R. v Brisbane City Council, ex parte Read [1986] 2 Qd.R. 22 at p.24 per McPherson J.

41             Section 33(4).

42             They are annexed to the stated case.

43             Form 1 of the forms under the Rules reflects this requirement.

44             Speech of the Honourable E M Hanlon, 19 September 1939, Queensland Parliamentary Debates, vol.174, p.469.

A third possibility, where there is evidence of misconduct in a professional respect, is to

refer that question for investigation and determination by the Tribunal: s.36(1).