Edelsten v His Honour Judge Ward

[1988] HCATrans 304

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S211 of 1988

B e t w e e n -

GEOFFREY WALTER EDELSTEN

Applicant

and

HIS HONOUR JUDGE WARD, QC

First Respondent

DR. W.B. GRANT

Second Respondent

DR. R.J. MULHEARN

Third Respondent

MISS F.T. OVADIA

Fourth Respondent

DAVID THOMAS RICHMOND

Fifth Respondent

Edelsten

GORDON MESSITER

Sixth Respondent

Application for stay of proceedings

pending hearing of special leave

WILSON J	application
(In Chambers)
TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 5 DECEMBER 1988, AT 2.32 PM

Copyright in the High Court of Australia

C3Tl/l/RB 1 5/12/88

MR C. SWEENEY, QC:  May it please Your Honour, I appear with

MR T. ALEXIS for the applicant. (instructed by

Shenker & Associates)

MR T. HALE: If the Court please, I appear for the respondents,

but the first to fourth respondents submit as to any

orders that the Court might make except as to costs.

(instructed by the Crown Solicitor for New South Wales.

HIS HONOUR:	Yes, Mr Sweeney.
MR SWEENEY:	Your Honour, the application this afternoon is for

a stay of orders made by the Medical Tribunal of New

South Wales which have the effect, when they come

into force, which is tomorrow, of having the applicant's

name removed from the roll of practitioners in that

State. The application is based upon an application

for special leave to appeal to the Court from the

judgment of the Court of Appeal at an earlier stage

of the proceedings against the applicant, by which

judgment Their Honours of the Court of Appeal dismissed

the various points taken against an earlier decision - an earlier set of reasons of the Medical Tribunal - in which reasons the Tribunal made the adverse findings

against the applicant, which resulted in the orders

made which come into effect tomorrow.

I understand from Mr Jones, Your Honour, that

there is room for one more application for special
leave to be taken in Melbourne this Friday. In those
circumstances my application is limited to an application
for a stay upon the basis that our application for

special leave will be made in fact on Friday.

HIS HONOUR:	So that if it were not to be listed on Friday, you would be content for the stay to cease, would you?
MR SWEENEY:	If it were not to be listed on Friday I would have

to ask for a more extensive stay, but I understand -

the basis of my conunent, Your Honour, was my understanding

that it could be listed on Friday and,in those

circumstances, by Friday we will either have special

leave or we will not have, and the position will be

Tl clear.

HIS HONOUR:  Mr Sweeney, it may assist you if I say that I have

read the papers and I am familiar therefore with the

application. Can I ask you do you accept that the

law surrounding the application is that which is

conveniently found in the decision of Justice Brennan

in JENNINGS V BURGUNDY?

MR SWEENEY:	Yes, I do, Your Honour.
HIS HONOUR:	That throws up, as I would understand it as relevant to these proceedings, two questions, the first question
being is a stay necessary to preserve the subject-matter
of the litigation -

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Edelsten

MR SWEENEY:	Yes, it does.
HIS HONOUR:	And the second question:  if that be answered

in the affirmative, is there a substantial prospect

that special leave would be granted. I do not

understand there to be any other relevant questions.

MR SWEENEY:  I accept that both those questions are raised,

Your Honour, and our response to them would be, first

of all that it is clear,as to the first question,
that this stay is necessary to preserve the subject-
matter of the application for if the stay be not

granted, the applicant's name will be removed from the

roll tomorrow and if he obtains special leave in due

course and his appeal is successful, of course the

subject-matter of that appeal will have, at least for

the interim period, been lost to him.

HIS HONOUR: Is the applicant practising now?

MR SWEENEY:	Yes.
HIS HONOUR:	I gather the impression, from reading the papers,

that at least at former times the practice was very

extensive and covering a number of clinics.

MR SWEENEY:  He practices now as an employee, Your Honour, and

that is perhaps another factor in favour of a stay

because whilst the stay was in effect he would proffer

to the Court an undertaking not to change his mode of

practice, and in those circumstances the various
problems which most of the charges concern before the

Medical Tribunal could not possibly arise during that

r2 time.

HIS HONOUR:  So that in effect you are saying that he would

give an undertaking to practice only as an employee.

MR SWEENEY:  Yes. As to the second of the BURGUNDY ROYALE

questions, Your Honour, we submit that the prospect - - -

HIS HONOUR: Let us not move on too quickly, Mr Sweeney. In

the event that special leave were granted on Friday,

and that I did not grant a stay this afternoon, there

would be no difficulty, would there, in a stay being

sought and, if the Full Court thought fit, granting it

then?

MR SWEENEY:  Your Honour,there seems to be a problem about that,

and the problem is this, that once - there is a power

under the relevant Act for the Supreme Court of but there is not an express power to justify an order

reinstating a man's name to the register by way of an

alternative to a stay if it has been lawfully removed

in the meantime. And the problem that seems to arise,

C3T3/l/RB	5/12/88
Edelsten

if we were unsuccessful in obtaining a stay today,

is that the name would be removed tomorrow morning

and we would then be in the position on Friday that the status quo would no longer be one which we were

able to preserve. I did not put that very well but

Your Honour knows what I mean.

HIS HONOUR: 

Yes, I see the force of that.

1:1R SWEENEY: 

So that it does appear, in our submission, to be

one of those cases where only the grant of a stay will
preserve the subject-matter of the application.

HIS HONOUR: 

Yes.

1:1R SWEENEY: 

And that is why I moved on rather precipitously

to the second question, Your Honour.

HIS HONOUR:	I am content to allow you to do that now.
MR SWEENEY:	As to that second question, our prospects of obtaining special leave, in our submission, are very
good. There are a number of special leave points and
I will only advance one before Your Honour for this
reason, that this point goes to the totality of the
charges against the applicant and if the point has
substantial prospects of attracting special leave, then
the fact that it has those prospects provides the justification, in our submission, for a stay of the
totality of the judgment.
The other points that one might argue all depend on individual charges and because he was struck off on
a number of charges, the better view may be that - - -

T3 HIS HONOUR: You are referring to the onus of proof, are you,

when you stress that initial question?

1:1R SWEENEY:  Yes. So, could I take Your Honour simply to the main

point which grounds what we submit are otn:' good prospects?

It is a two-headed point and it depends upon the Court of

Appeal judgment in AZZOPARDI, 4 NSWLR 139. It is also

the point with which Mr Justice Clarke was concerned at

pages 3 and 4 of the judgment of the Court of Appeal.

Now, what was put to Mr Justice Clarke was a

submission which starts on page 2, Your Honour, of the

Court of Appeal judgment. It is a reliance upon the

BRIGINSHAW test followed by an argument that notwithstanding

that the Medical Tribunal expressed deference for the

test in BRIGINSHAW, the course of reasoning which it

adopted demonstrated that it had misapplied itself in

its actual implementation of the test.	Now, that was the
argument.

Mr Justice Clarke dealt with it substantially at

page 3 in the second paragraph where His Honour said this:

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Edelsten

These statements -

that is to say, the reference by the Tribunal to

BRIGINSHAW -

presented a formidable hurdle -

and the way the hurdle was sought to be overcome was the

argument that there was no more than lip service paid to

BRIGINSHAW.	And then His Honour rephrased the argument
this way:

In other words it was said that each decision finding the complaint proved was, bearing in

mind the special standard required, so

clearly erroneous that the tribunal must

necessarily have failed to apply that standard.

This is no more than saying that the decisions

are perverse. That is, that they are contrary

to the overwhelming weight of the evidence or

such that no reasonable person could have made

them. That is, that the decisions are wrong

in fact. Accordingly, the submission fails to

raiseany·error of law -

and the two decisions of the Court of Appeal in

AZZOPARDI and MAHONY are referred to.

For this reason the submission should be rejected.

I should add the observation that I have not found

upon my examination of the evidence or the

tribunal's reasons any support for the proposition

that it only paid lip service to the rule.

And I will come back to that parting comment if I may,

Your Honour, but on the basis of that, the argument is as follows: first, the principle in AZZOPARDI is

wrong and secondly, even if the principle in AZZOPARDI

be correct, it was not an appropriate occasion for its

application here for even if the principle in AZZOPARDI

be right, it stands for no more than the proposition

that the bare submission that a finding of fact is so

unreasonable as to be perverse is not a ground of appeal

in law and the instant circumstances were not limited

to such a bare submission for what was being put to the

Court of Appeal was not the bare argument that I have

described but an argument that in the purported application
of the BRIGINSHAW test the process of reasoning leading to

the findings of facts which the Tribunal embraced were so

plainly erroneous as to be capable of being perceived

as vitiated by error.

Now, that, of course, is a circumstance where

the Tribunal is obliged not only to make ultimate
findings of fact but to marry them into the application

of a legal principle which is embodied in

BRIGINSHAW.

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Edelsten

:MR SWEENEY (continuing):  So for those two reasons we submit that

the Court of Appeal reasoning was erroneous on this

vital point. Now, Your Honour, if it is convenient

I should perhaps go back to my first submission which was that AZZOPARDI was a decision which was incorrect.

HIS HONOUR:	You would wish to support the view of the President?
:MR SWEENEY:	Yes, and in fact it is of interest that in one of

the later cases where AZZOPARDI is referred to as being the law - no, it is the earlier one in the same volume. In MAHONY, in fact, one of the judges - it is

Mr Justice Mahoney, I think, from memory - formulated a rule inconsistent with AZZOPARDI. If Your Honour looks at 8 NSWLR at page 6, Mr Justice Mahoney's judgment in

MAHONY is reported, and at letter E His Honour said:

Having regard to the terms of the reasons given, I am not satisfied that the finding

was perverse or otherwise so far wrong as

to evidence an error of law.

Now, that is inconsistent with the reasoning applied

by Justices Hope and Samuels in that case and, of course,

it is also inconsistent with the majority in AZZOPARDI.

I might be pardoned for adding that Chief Justice Mason

made a similar observation in passing in HOPE V BATHURST

CITY COUNCIL, 144 CLR at page 7. About point 8 on the

page, Your Honour, just finishing a paragraph referring

to BRUTUS V COZENS, His Honour said:

The only question raised was whether the

appellant's behaviour was "insulting".

And I interpolate, Your Honour, of course that was a

question of fact.

As it was not unreasonable to hold that

his behaviour was insulting, the question

was one of fact.

In other words, His Honour was reserving for a

separate category, in our submission, unreasonable

findings. Now, the -

HIS HONOUR: Although the tenor of the decision in HOPE, I

rather thought, was that it came into the category of

a question of law because the finding involved an

understanding or construction of the statute in

question, in particular the meaning of the word

"business".

:MR SWEENEY:	I entirely accept that, Your Honour.
HIS HONOUR:	Which would be the recognized exception in

AZZOPARDI.

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Edelsten

MR SWEENEY:  I would submit not. I would submit that HOPE

was concerned with one of the well known heads under
which one reaches the conclusion that a decision or

an appeal point involves a point of law. That is the

head of the need to apply facts to statutory provisions.

And of course that head is not as crystal clear as

that because if the statutory provisions involve

every day terms, that alone may not be enough.	But I
accept that is what the case was concerned with.

Mr Justice Mason's connnent is merely a connnent in

passing - and I do not rely on it as being anything

TS more. HOPE is not inconsistent with the argument that

we make on AZZOPARDI for this reason: we would say- - -

HIS HONOUR:  The argument that AZZOPARDI was wrong in relation

to - - -

MR SWEENEY:  HOPE is not inconsistent with that for this

reason, that HOPE is concerned only with one category

throwing up points of law, the category of facts to a

statute. AZZOPARDI is an erroneous decision on another

category, that is to say, the perversity category.

Now, it is true that in an order, I suppose, one comes

to the HOPE subject-matter first and AZZOPARDI last,
but we say that the vice in ~ZZOPARDI is that it fails
to recognize any point at which a departure from
tenable findings of fact rooted in the evidence throws
up a point of law and that is the point that the
President was making·. It is the point that distinguishes

AZZOPARDI from the English approach; it is a point that

marks AZZOPARDI as going beyond the orthodox principle

stated, perhaps, by Chief Justice Jordan in McPHEE's

case, to which the President referred; and it is the

point which the President himself makes again somewhat

nostalgically, perhaps, in HAINES V LEVES, 8 NSWLR. The

judgments start at page 442 and the relevant passage is

at 470 and, in our submission,- - -

HIS HONOUR:  Yes, I see that at section B.

MR SWEENEY:  Yes, and in our submission the problem with

AZZOPARDI was that the majority - the two judges on

the Court of Appeal who included Mr Justice Samuels

who was also a party to the later decision in MAHONY -

permitted of no circumstance in which a miscarriage of the factual function would result in an err~r of

law.

Now, Your Honour, as to our prospects of

obtaining special leave, we would say that - first of all, that is the argument, those two legs that I put; and secondly, there is a conflict in the Court of

Appeal between, on the one hand, the President and

Mr Justice Mahoney in the judgment to which I referred,

and on the other hand, Mr Justice Glass and

Mr Justice Samuels. It is a point of abiding importance.

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Edelsten

It does not seem to be a point which - it is a point

which, on the present state of the authorities in

New South Wales and so far as we can see in other

States, calls appropriately for determination by the

Court.

HIS HONOUR:  So that the existing position as I would understand

it then is that if there is no evidence at all, then

it is a question of law, saying that if you cannot

find any evidence to support the conclusion, if it is

a misapplication of facts to the statute, it is a

question of law. And you are arguing that on the

basis of EDWARDS V BAIRSTOW and the views of the

President and Mr Justice Mahoney that there is a third

category where the evidence is so slight or such that

it would be unreasonable for the finder of fact to

rely on it.

MR SWEENEY:  Yes. And because of the way the Court of Appeal

judgment is constructed, I am at liberty to put that

point by saying that there is a category where the

finding of fact is so demonstrably unreasonable and

perverse and departs so manifestly from the substratum

of the evidence that it commands the conclusion that

it involves error of law.

HIS HONOUR:	So that in effect what you say is that if the standard of proof was the balance of probabilities
simpliciter, as in an ordinary civil case, the judgment
of the Tribunal might well pass the test but, bearing
in mind the gravity of the questions and the principle
expressed in BRIGINSHAW, no reasonable Tribunal could

T6 have been satisfied to that standard.

MR SWEENEY: That is my second point, Your Honour. Whilst they

are very close and related, I would put it	that they
are in truth two points: the first one is	that
AZZOPARDI, as a judgment, is wrong - - -

HIS HONOUR:  AZZOPARDI denies that third point. That is why I

thought you were saying it was - - -

MR SWEENEY:  But I am stronger on that point than I am on my

first point because AZZOPARDI - if AZZOPARDI be wrong,

then that is all I have to show to impugn the Court of

Appeal judgment because the Court of Appeal judgment assumed that the appropriate test was embodied in

AZ3OPARDI. Now, my second point is this, that even if

AZZOPARDI is right, the Court of Appeal made a mistake

in applying it because AZZOPARDI is concerned only with

bare finding of fact whereas the task before the

Tribunal was the meshing together of findings of fact

with the application of the BRIGINSHAW standard.	So
that Mr Justice Clarke, we would say - - -

HIS HONOUR:  The end result, of course, might still be the same,

that any appellate tribunal that examined the evidence

C3T7/l/RB	8	5/12/88
Edelsten

might find that it was adequate to sustain the

higher test. But that is another question.

MR SWEENEY:  Yes, it is. Your Honour, those are my arguments.

HIS HONOUR:  Thank you, Mr Sweeney. Yes, Mr Hale, what do

you say about it?

MR HALE:  Your Honour, our submissions might be summarized

in this way: firstly, we say there are no grounds for

special leave, that the prospect of special leave

being granted is so slim as not to fall within the

BURGUNDY ROYALE principle. I will come back to that

in a moment if I may, but if I might, in passing, say this: there were seven complaints before the Medical Tribunal. In respect of four of those the appellant

was struck off for periods of 10, 7, 5 and 2 years.

Now, in order to obtain special leave or at least to obtain an injunction or stay today, we would be

submitting that Your Honour would have to be satisfied

in relation to each of those four matters in respect
of which he was struck off that there was a probable -

to use BURGUNDY ROYALE - a substantial prospect of

special leave. Because if he fails on one, then it

would automatically follow that his period of

suspension automatically begins. So there is no urgency

in that respect.

HIS HONOUR:  But the error imputed to the Court of Appeal is

in the nature of a prefatory error, that is to say if

it was established, then it would infect the entire

approach of the Tribunal.

MR HALE:	Yes, I accept that, subject to the qualification- - -
HIS HONOUR:	In a sense, I think the point you are just making

is virtually conceded by Mr Sweeney. He has not gone

to the individual complaints; he has staked everything

on that primary threshold point.

MR HALE:  Yes. Perhaps I might come back to that in a moment

and deal with that. The second ground is the

discretionary aspects, namely the public interest,

which we say falls within the fourth category in

BURGUNDY ROYALE, namely the balance of convenience, and

we say one has to have regard to the protection or the
public interest and the patients and people of the

State of New South Wales.

HIS HONOUR: That is not very strong in this context, is it,

when the question has been stayed since May, I think

it was, when the findings on the complaints were made,

the complaints were established, and all that is in

prospect for me to weigh on the balance of convenience

is the remainder of this week.

MR HALE:  I accept that, only that we would none the less say

C3T7/2/RB	9	5/12/88
Edelsten

that that is a factor which the Court must consider,

because, as Your Honour has observed, there are some

T7

very strong findings of fact. And even if there were success in this application ultimately on the appeal, the consequence would be that the matter be referred

back to the Medical Tribunal to be dealt with according

to law.

Now, in that respect, there is already a finding

or a view taken by the Medical Tribunal on the evidence
of the appellant himself which I should take Your Honour

to now. The judgment of the Medical Tribunal, which I

think is exhibit 2 to the affidavit - - -

HIS HONOUR:	What page?
MR HALE:	AT page 24 to 25, the Medical Tribunal simply assumes

that Dr Edelsten's evidence be accepted and then comes
to a conclusion that even that, of itself, leads to

such a deficiency in character as to be misconduct.

If I might take Your Honour to that. It begins at

about point 5 on page 24:

of Mr.Flannery. to intimidate a former

patient by threats or violence,that the

conduct of the respondent in enlisting the

aid of M~ Flannery in the manner and for the

reasons he gave in evidence, is conduct

unbecoming of a member of the profession and

indicates such a deficiency in character as

to be properly described as bad character in

itself.

And the passage goes on - - -

HIS HONOUR:  I am not sure that I - and although I read the

judgment, it is a long one and I cannot inrrnediately

reconcile the premise there that even if there were
no finding that the respondent had sought the assistance

of Mr Flannery, nevertheless his conduct in enlisting the

aid of Mr Flannery - are they consistent?

MR HALE:  Yes, they are. The position is - the complaint which

is the first complaint is that Dr Edelsten - - -

HIS HONOUR:	I am familiar with the terms of all complaints.
MR HALE:	The evidence is set out at pages, I think, 9 and

following, which I need not take Your Honour to, but

there is evidence given by Dr Edelsten himself, for

example, at page 21 of the judgment of the Medical

Tribunal, where he admits that on 3 March 1984 he had

a conversation with Flannery and towards the bottom of

page 21 Dr Edelsten Rdmim recalling:

saying "I want the guy found to stop

harassinrr me". He conceded that he ...,

C3T8/l/RB	10	5/12/88
Edelsten

knew the man he was talking to was

charged with murder at that time and

had been described to him as a hitman,

and he also conceded that he raised

with Mr. Flannery the problem of the man
who was harassing him, and had said -

he did not want him harassed. Going over the page:

He said that, at that time, he personally

was certain that the person was Evans, but

stated that he did not recall whether he

had mentioned Evans' name to Flannery.	He
also said that he did not recall whether

he had identified the guy, whom he wanted

found -

that is the passage.

HIS HONOUR:  The police did not know the identity of the person

who was harassing him at that time, did they?

MR HALE:  I cannot recall that.

HIS HONOUR: So on one view. all that this amounts to, if

one is putting aside all the other evidence, is that

there is an admission of having rung a person who was

a former patient who happened to have been in trouble

with the law to ask him if he could throw any light
on the identity, presumably from his knowledge of the

underworld, of the person who has been harassing him. Then I would quote, just for the purpose of argument,

TS "so that I can tell the police".

MR HALE: Well the evidence further of the appellant, which is

referred to at page 21, about point 8:

In Cross-examination the respondent recalled

saying "I want the guy found to stop

harassing me".

His knowledge of the background of Flannery, and in

all those circumstances about which there appears

not to be a great deal of dispute so far as the

appellant is concerned, the Medical Tribunal found,

simply having regard to the admitted facts by

Dr Edelsten, that that of itself - this is at page 24 -

indicated "such a deficiency in character as to be

properly described as bad character in itself." And

it goes on:

It is then extraordinary for that

known to him as a "hitman11 , to assist professional man to call on a person,

him, through his criminal underground

contacts, to discover the whereabouts of

a former patient, who previously had been

seeking Court discovery -

C3T9/l/RB	11	5/12/88
Edelsten

Now, the point about that is that that is effectively

a finding that on the version of Dr Edelsten he was

not - or he was found not to be a man of sufficiently

good character to remain a medical practitioner.

So if the appeal even succeeded then it goes back to the Medical Tribunal in circumstances where

they have already found, on these facts alone, the

charges having been made good.

HIS HONOUR:  But am I justified in looking that far ahead,

Mr Hale. Assume for the moment that Mr Sweeney is Eight in the way in 'Which he has framed tl:1=question of law

that can be said to arise and the question whether

AZZOPARDI is wrong is obviously a question of

general importance which would satisfy one part of

the question confronting a Full Court on an application

for special leave. If that were so, I just wonder

whether one is entitled for me now to say, well, the

prospects of a grant of special leave are so

insubstantial, because ultimately it will not do

Dr Edelsten any good.

MR HALE:  We do not put it quite like that. We say Your Honour

needs to look at this aspect of it, and the finding to

which I have just taken Your Honour, in conjunction
with an assessment of the strengths and weaknesses

of the application. And if the Court were, as it were,

teetering on granting the stay on the belief that

perhaps there was a substantial prospect, then this is

one factor which would weigh down the granting of the

stay.

HIS HONOUR:	Yes, I understand how you put it.
MR HALE:	And there is a third point, before I return to the

main one, and that is the chronology of events which

have been set out in the affidavit of Ian Kirk Linwood,

sworn today, which I think is filed in Court.

HIS HONOUR:  Yes, I have seen the chronology. Apart from

noticing the multiplicity of proceedings, I am not

sure what you make of it.

MR HALE:  Only this, that the number of occasions when last

minute applications have been made in order, we would

say, to fo4estall the inevitable. We would say that

having regard to that chronology, that is simply one

other factor tb which Your Honour ought to have regard and perhaps view with some suspicion this application.

But, of course, Your Honour, can only - - -

T9 HIS HONOUR: There has been no delay in making it, has there?

I think the decision was only given last week, was it not?

MR HALE:  That is so, but the principal findings - at least the

judgemnt of the Court of Appeal was given - I am not

C3Tl0/l/RB	12	5/12/88
Edelsten

quite certain what day - on 11 November. On

15 November an application was made to the Court of

Appeal for a stay, which was rejected, with the hint,

if I might put it that way, that an application would

need to be made to this Court.	So there is some
delay in that sense.	True it is it was only last
Tuesday - - -

HIS HONOUR:  Was the attention of the court drawn to the observation of Justice Brennan in BURGUNDY - - -

MR HALE: Yes, it was. In fact, Your Honour, I have - - -

HIS HONOUR:  - - -so that that declining to grant the stay was

an exercise of discretion and knowingly that it had

the power to grant a stay and that it should not be

deterred if it thought it was an appropriate case.

MR HALE:  Yes, they considered it was not an appropriate case.

I could hand Your Honour a copy of the judgment. It

only became available this morning.

HIS HONOUR:  Have you seen it, Mr Sweeney?

MR SWEENEY: Yes, I have, Your Honour.

HIS HONOUR:	Yes.
MR HALE:	If I could return now to the first point, the question

of whether special leave would be granted. What

becomes apparent, we would submit, when one looks at

the judgment of the Court of Appeal is they are saying,

firstly, it is a question of fact - or at least an

error of fact being argued, not an error of law. But

the way the Court of Appeal approaches its assessment of the facts is to make it abundantly clear, we would

submit, that so far as the court was concerned, there

was adequate evidence of itself to support the findings and in certain respects, I think, goes so far as to say with respect to certain complaints, that the findings
were in the circumstances almost irresistible.

So when my friend talks about the AZZOPARDI's

case, it becomes quite clear that even if his
contention is correct, the way the Court of Appeal have
assessed the facts, even if a wider approach or a
different approach to a question of law or a question

of fact was considered, the appeal none the less would

have been dismissed. They, for example, in relation to

a number of complaints, have held that it was not a

perversity effectively in those terms.

Secondly, it is necessary to go to their findings to determine whether the appropriate application of

standard of proof was indeed applied for this reason:

as the Court of Appeal clearly held that the Medical Tribunal purported, at least, to apply BRIGINSHAW V

BRIGINSHAW, and indeed when one looks at their

C3Tl0/2/RB	13	5/12/88
Edelsten

application of it which is at pages 4 and 5 of the

decision, on the face of it it appears they have

correctly approached their task.

Now, in order to establish they were in error in approaching their task it would be necessary, we

would submit, to look at the strength - or look at

the evidence and determine whether the Court of Appeal
and the Medical Tribunal, had they applied the test,

could not have come to the findings they did. And

if I might now take Your Honour to a number of the

complaints, at least the findings, for it is only then,

with respect, Your Honour will be able to see the way

the Court of Appeal have approached their task.

Effectively they looked at the question almost as if it

were an appeal on the facts, but none the less said,

but in any event it is a question - there is no

question of law.

If I could take you to the first complaint

and that is what has been called the "Flannery"

charge, at page 7 of the judgment of the Court of

Appeal they begin considering the relevant evidence.

At about 7 point 3:

TIO	It was then said that it was not open to the Tribunal, as a matter of law, to
conclude that the appellant acted with
a view to obtaining the assistance of the
professional standover man ..... I have some
difficulty in discerning the question of
law -

Then at page 7 there begins an assessment of the

evidence. Firstly it begins with the meeting with

Flannery on 26 January 1984. I need not take

Your Honour to the detail of the facts, only to look

at what the court said at the top of page 9 about

that incident:

This statement was made- 0 : 

meaning the statement with his secretary concerning

Mr Flannery - had:

been discussing the harassment ..... in a

context in which it was open to the tribunal

to infer that he was discussing what had

occurred during the preceding few days.

The next incident there is on 15 April when the

appellant had a conversation by car phone with his

then fiance which was intercepted and taped.	And it
begins, his fiance:

Nesbitt: Will he (it is accepted that this

meant Flannery) do it?

C3Tll/1/RB	14	5/12/88
Edelsten

Appellant: Pardon?

Nesbitt: This bloke.

And then there is some discussion about money.

The Court of Appeal said at page 10, after setting

out that conversation:

While one possible inference is that the

appellant had discussed Flannery's prices during
a passing conversation in January the content
of these discussions and their timing with

respect to the continuing harassment raised a

far more compelling inference that the

appellant had spoken to Flannery in the

hope of enlisting his aid.

That is going back, as I opened, bv referring to the

general approach of the court there adopting the

more compelling inference is this one. There is then

a reference to a conversation with Mr Christopher

Masters, a journalist with the ABC, and that is then

set out, again discussing about obtaining a painter and

docker and how much a bashing cost and how much it cost

to kill someone. Then going to about point 3:

If the two conversations are considered

together, as is proper in the circumstances -

so they are supporting what the Tribunal actually

approached -

it was clearly open to the Tribunal to conclude,

in my opinion, that the appellant did not simply

have a passing conversation of a gossipy nature

with Flannery but discussed with some seriousness

the prospect of securing his assistance.

Then we come to the competing inference which was

put by Dr Edelsten's counsel, namely about discovering

the whereabouts, and then the court goes on, in the

final paragraph:

No doubt the Tribunal could have drawn

this inference, unlikely as it might seem,

so they are, in effect, saying	as a question of
fact the Tribunal was correct -

but the Tribunal in fact found that the

complaint had been made out. This

conclusion involved a finding that the

appellant had approached Flannery with the

intention of seeking his assistance in ridding

himself of the harassment.

And this is then important:

C3Tll/2/RB	15	5/12/88
Edelsten

I have already indicated that on the

evidentiary material before the Tribunal

such a finding was clearly open.

So it is not simply a case of, well, there was some

evidence.

Indeed in my opinion once the Tribunal

rejected the appellant's evidence that

inference and the consequential finding of

absence of good character was almost

irresistible.

Now, that is taking the first complaint, the approach of the Court of Appeal, and we would submit it is quite clear in that approach they are effectively

saying that even if there was a full appeal, they

could find no error of fact on that charge. I

Tll	regret I need to take Your Honour to some of the
other compl~ints just to demonstrate the same point.

HIS HONOUR:	I guess you could say that that hypothetical finding of the Court of Appeal would satisfy, however
high the BRIGINSHAW test led, in terms of standard of
proof.

MR HALE:  That is what we would say, yes. However high it was,

it was satisfied. And they were not simply approaching

it on the question which was at issue in AZZOPARDI,

was perversity an error of law or an error of fact,

because it is quite clear that they were not concerned

with that issue; they were mainly concerned about what
the facts were.

If I could go to the second and third grounds which have been dealt with together, the stay

concerned ground 2, an attempt to induce practitioners

to over service, and ground 3 was that in fact

Dr Edelsten offered inducements to over service.

Now, if I can deal with ground 3 first, and

that is at page 20 to 22. The first full paragraph

on page 20 begins, "The consideration of a third

complaint". Refers to the evidence of a number of

doctors who gave evidence, they being in Dr Edelsten's

employ at least in the employer companies with

which Dr Edelsten was associated. Having referred to

that evidence, we come to page 22 and at about

point 5, reviewing the third complaint:

This evidence and other evidence of a similar nature which was relied upon by the Tribunal

provided a sound basis for the conclusion
that in offering, or paying, commissions to

medical practitioners working in the

various practices operated by the appellant

in respect of referrals to particular

C3Tl2/l/RB	16	5/12/88
Edelsten

specialists the appellant did so with the

intention of inducing-

so we would say a sound basis, obviously again puts

the test much higher than as seeing whether there

was any evidence there.

The statements made to Dr Green and

Dr Crickitt are eloquent of that

intention. The question whether the offer

of, or payment of, the corrnnissions had

the requisite tendency is clearly a

question of fact provided there was

some evidence -

So that does go bo the AZZOPARDI point -

on which such a finding could be made. In

this case the evidence, in my opinion, was

more than adequate support for a conclusion

adverse to the appellant.

So he is again putting the test much more in favour

of Dr Edelsten than would be necessary.	Now, to
deal with - - -

HIS HONOUR:  The 10 years before being eligible to apply for

readmission was in the first case.

MR HALE:	The Flannery case.
HIS HONOUR:	What was the second?
MR HALE:	The second was twq and the third, the one I have just

dealt with was five, and the fourth complaint was seven.

HIS HONOUR:  Thank you.

MR HALE:  So the one I have just dealt with was five. Now,

dealing with the second, they began - Mr Justice Clarke

began consideration of that at page 18 at about

point 6.

In the context of that background I turn to consider ground 2.

He referred to the evidence and then over the next

page looks to see whether there is a tendency that

this would lead to overservicing. He then delays

consideration of that question for a moment, goes

on to the third complaint, and then back on page 23

returns to the second complaint, calling in aid the

evidence relating to the third complaint.	About
point 4:

Furthermore, in the light of the evidence given in support of the third complaint

it was open to the Tribunal to conclude

C3Tl2/2/RB	17	5/12/88
Edelsten

adversely to the appellant on the second

complaint. That is because the evidence

relating to the latter complaint

justified a finding -

We would submit the use of the word "justified"

again goes more generously in favour of the appellant.

Accordingly, the question, which is simply whether there was evidence available to the

Tribunal to make adverse determinations

on both these complaints, should be

answered in the affirmative. No error

Tl2 of law has been shown.

So that deals with the second and third and the way

the Court of Appeal approached its task in looking

to the Medical Tribunal.	And the final ground I
would take - - -

HIS HONOUR:	Because the way they express it there is simply leave open the question of whether they failed to
apply the correct question to an error of law.
MR HALE:	Yes, they did not seem to be concerning themselves

with applying it.

HIS HONOUR:	No; just simply saying, "No error of law has been shown", that is accepting AZZOPARDI is correct.
MR HALE:	Yes, they are, but I have already put my submission,

they seem to be looking at things as it were with a

more generous approach to Dr Edelsten in assessing

the evidence.

The fourth complaint, and this is the last one,

because-that dealt with a period of seven years

disqualification, that was in effect a fraudulent

scheme. Now, at page 24 there is reference to the

regulations. At the bottom of page 25:

The essence of the complaint was that the

appellant had received, by means of a
fraudulent device, portion of the proceeds

of ultrasonic treatment given by Dr Hatfield

which was charged at the higher rate.

Then the court deals with the evidence, which I need

not take Your Honour to, and then comes, having dealt

with all that evidence, at 30 point 4, there is one

preliminary finding, the paragraph beginning:

This evidentiary material when coupled

with the evidence that the terms of the

written agreement -

et cetera - - -

C3Tl3/l/RB	18	5/12/88
Edelsten

HIS HONOUR: Is your copy as deficient.as mine? It has

a - you can get the sense of it - - -

MR HALE:  Your Honour, could I hand up another copy.

HIS HONOUR:  Yes. The paragraph commencing with "This

evidentiary material".

MR HALE:

This evidentiary material when coupled

with the evidence that the terms of the

written agreement, which was executed

before Dr Hatfield started performing the
ultrasound services at the appellant's

premises at Liverpool, were not applied, the

timing of the ultrasound arrangement and the

evidence showing that Dr Hatfield called

into the surgery each afternoon to sign
the reports tended strongly to suggest that

improper fee sharing was taking place.

Again that very high finding of fact. Then further

evidence and dealing with inferences that the

appellant asked to be drawn from this evidence,

come to page 35, the first full paragraph:

In my opinion there is simply no

substance in the suggestion that upon

the evidence accepted by the Tribunal it was not open to infer that the appellant

was engaged in an improper fee sharing

arrangement. All the indicia point in

that direction -

again, effectively saying there was no error of fact -

and the rejection of his explanations,

vague and general as they were, left it

well open to the Tribunal to draw a

notwithstanding the seriousness of the	conclusion adverse to the appellant
offence charged.

Now, I do not need to trouble Your Honour with the rest of the complaints because they were struck off

but we would say what Your Honour gains out of that

is that they - however high one places the test, the

Court of Appeal complied with that test and therefore

one is not concerned with the AZZOPARDI question.

Secondly, when one looks at the BRIGINSHAW test, as

Mr Justice Clarke had said, to which my friend referred

you, this is at page 4, dealing with a question of

lip service in application of the standard:

I should add the observation that I have

not found upon my examination of the evidence

C3Tl3/2/RB	19	5/12/88
Edelsten

or the tribunal's reasons any support

for the proposition that it only paid

lip service to the rule.

One looks to the fact itself, or the facts and the

way the court approached it, one can gain no assistance

as would suggest - to the suggestion there was only

T13 lip service being paid. So they are the grounds upon

which we would say that the prospects of success on

a special leave application are very minor, and when

one takes into account the other discretionary

matters to which I have referred Your Honour, they

are our grounds.

HIS HONOUR:  I take it you do not have anything to submit on

necessary to preserve the subject-matter of the appeal.	that first question, the question whether a stay is the force of what you have been saying about the
second question.

MR HALE: In direct answer to that question, I would need to

get some instructions as to what attitude we would

take.

HIS HONOUR: It does seem to be a different situation. If a

stay were not granted and yet special leave was

granted on Friday, in the meantime the applicant's

name had been removed from the register, as could

well ~ave lawfully been done, then one does face a

rather unusual situation.

MR HALE:  Yes. But there is also another difficulty that there

is a discretion, in any event, in the Court of Appeal

to have granted a stay consequent upon the question

of penalty, so ~here would have been that discretion

relating to the penalty question.

HIS HONOUR:	There is a right of appeal to the Court of Appeal from the penalty.
MR HALE: That is so. That is the point, and they could have

made application on that penalty provision, which is

a different question than that which entertains the

Court today. And that could have been another approach

adopted which may or may not have led to a stay in the

Court of Appeal. But that is the only other matter.

They are my submissions, Your Honour.

HIS HONOUR:  Thank you, Mr Hale. Yes, Mr Sweeney, do you wish

to reply?

MR SWEENEY:	Your Honour, of course we could have applied to the Court of Appeal but we would be applying,
presumably, on the hypothesis that the adverse
findings of fact against us were to be treated as
... ~.That was the problem with going to the Court
of Appeal.

C3Tl4/l/RB	20	5/12/88
Edelsten

The application for the earlier stay in the

Court of Appeal was, of course, a different subject- matter. That is the application on 15 November.

That was an application for a stay of further

proceedings in the Tribunal and that subject-matter

of course is gone now because the Tribunal has handed

down sentence, in effect.

Now, Your Honour, I need to reply to what my

learned friend said on the facts about the various

charges to which he referred. The problem with it

is that it involves me to some extent in canvassing

that which I did not wish to canvass, namely

individual arguments relating to individual charges.

But -

HIS HONOUR:  I do not see any escape from that for you,

Mr Sweeney. I think Mr Hale has advanced what would

appear at this stage to be a strong argument on the

basis that, well, never mind if there is an interesting

question of whether or not the difference of opinion

in AZZOPARDI should be addressed by the Court, the

Full Court considering an application for special leave often finds itself in the position of saying, yes, there is an interesting question of law lurking in the

background but there is insufficient reason to doubt

the correctness of the decision - with the emphasis on

the word "decision"- of the Court of Appeal.

MR SWEENEY:  We all remember fondly, Your Honour, being told that it is an interesting point for another day.

HIS HONOUR: That is right, and at the moment that seems to be

the point that Mr Hale is really stressing~ -

MR SWEENEY:	I accept the force of that, Your Honour.
HIS HONOUR:	- - -leaving aside those discretionary

:14 considerations to which you referred.

MR SWEENEY:  Before I descend to the detail, could I just make

this submission: Their Honours in the Court of Appeal

did not turn again to this important issue of

AZZOPARDI and BRIGINSHAW and everything which follows

in Mr Justice Clarke's judgment is predicated on the

basis that what His Honour said at the outset was
correct and the only place where Mr Justice Clarke

descends from the AZZOPARDI/BRIGINSHAW analysis to the facts in that context is at the top of page 4,

and I meant to come back to that observation that I

read, but I forgot. That is the observation that:

I have not found upon my examination of the

evidence or the tribunal's reasons any

support for the proposition that it only

paid lip service to the rule.

C3Tl5/l/RB	21	5/12/88
Edelsten

Now, of course, if that were all there was, it would

be quite insufficient to alleviate the consequences

of error occurring in the antecedent reasoning because

it really is not an analysis of the facts at all.

Now, Your Honour, when one comes to the individual charges - and I will take them in the order

in which my friend took them - he dealt first with

ground 1 and drew attention particularly to the passage

at page 10 in the judgment of Mr Justice Clarke.	Now,
Mr Justice Clarke -

HIS HONOUR: Just before you go to that, I am just reading

those two or three lines again, Mr Sweeney:

I have not found upon my examination

of the evidence or the tribunal's reasons

any support for the proposition that it

only paid lip service to the rule.

In effect it is saying that I am quite satisfied

from reading the Tribunal's reasons that they did
apply the BRIGINSHAW test, or that if they had they

would have come to the same conclusion?

MR SWEENEY:  I think His Honour, whilst he may be putting it

in the negative, the practical effect of what

His Honour is saying, I think that I would accept, is

that he is saying that it is His Honour's opinion that
there is nothing in the evidence to ground the argument that the Medical Tribunal failed to appropriately apply

BRIGINSHAW.

HIS HONOUR:	Now, if that is accepted, then there is really no room for the perversity argument, is there?
MR SWEENEY:	Your Honour, if that is accepted, it only goes

to the second of my two points.

HIS HONOUR:  But even if AZZOPARDI was wrong and Justice Kirby

was correct in saying that he would concede an

appellate jurisdiction in respect of decisions which

were seen to be so unreasonable that no reasonable body

could have come to the conclusion they did, that is a

far cry from--.- ·

MR SWEENEY:  BRIGINSHAW.

HIS HONOUR: - - -and it is a far cry from the conclusion that

having looked at the reasons, I see no evidence that

they failed to exact a high standard of proof from the

complainant.

MR SWEENEY:  I accept the force of that as Your Honour puts it.

C3Tl5/2/RB	22	5/12/88
Edelsten

HIS HONOUR:	But you were going to go to page 10.
MR SWEENEY:	I was, Your Honour, and really I suppose what I

have to say in response can only emerge in the

detail of what is to follow. Taking the first charge, the passage to which my learned friend referred in the middle of page 10 well illustrates the point, we

submit. His Honour says:

While one possible inference is that the appellant had discussed Flannery's prices

during a passing conversation in January

the content of these discussions and their

timing with respect to the continuing

harassment raised a far more compelling

inference that the appellant had spoken

to Flannery in the hope of enlisting his aid.

Now, Your Honour, of course as a finding of the

Court of Appeal, it does not have the sacrosanctity of the finding of a tribunal of fact and, in our

submission, it is flatly inconsistent with BRIGINSHAW

because if there is an inference open that the appellant
had discussed Flannery's prices during a passing

conversation, and if I may embellish that a little

by reference to the evidence and say that if the

inference is open that there was no evidence inconsistent

w11th the proposition that this material was volunteered

by Flannery to the applicant, then if you were applying

the BRIGINSHAW standard in relation to a charge of

such enormity it would be quite insufficient to rely

upon the juxtaposition of those conversations with the

continuing harassment to raise what Mr Justice Clarke

ns	called "a far more compelling inference".
Your Honour made the observation before that part of the evidence is consistent with the applicant
making contact with someone that he thought might be
in a position, because of past experience to know a fact, w.Ltli.a:v±ew to obtaining the benefit of that fact for
the purpose of reporting it to the police. That is the
sort of inference that one would make unless compelled
to make an inference of the kind made here. And
BRIGINSHAW requires that if you do not conclude adverse to a respondent in these circumstances, the kind of
facts concluded here by Mr Justice Clarke, unless there
is no effective escape from such a conclusion.

Now, the other thing that I want to say about

ground 1 is that Mr Justice Clarke shored up the

conclusion that I have just read His Honour as having

expressed by a reference to the evidence of Mr Masters,

and it is a key point in the evidence of Mr Masters at

the top of page 11 in the extract from the transcript:

I raised it with him -

That is to say the applicant is reported as having said,

"I raised the subject-matter with Flannery". Now, that

C3Tl6/I/RB	23	5/12/88
Edelsten

passage of Masters' evidence is contradicted by

Masters' concession in cross-examination that the applicant said nothing to him which suggested that the applicant had raised the subject, and

Mr Justice Clarke, with respect, was quite wrong

both in fact and in law, having regard to the

requirements of BRIGINSHAW, to take selectively one

passage of the evidence which favoured the conclusion

which His Honour had already reached, when there was

another passage which was flatly inconsistent with it.

And, of course, if one goes back to the reasoning of

Mr Justice Clarke at page 10 point 5, and one

substitutes the part of the evidence of Masters

accepting that nothing that the applicant said

suggested that he had inquired of Flannery for this
subject-matter, then one is compelled, if I may be

pardoned for using His Honour's very language, to the

inference which is opposite to the one which His Honour

drew. And that is an illustration of the kind of thing

that went wrong with this judgment, we would submit,

once the Rubicon of AZZOPARDI and MAHONY and

BRIGINSHAW had been crossed at pages 3 and 4.

It is true that His Honour descended to a

factual analysis. We would submit it was not the

sort of factual analysis that the Court of Appeal was

required to engage in because it was not directed to

the AZZOPARDI/BRIGINSHAW issue. It was an approach by

Mr Justice Clarke as if he had been charged with

deciding the facts for himself. Putting that aside

and accepting His Honour's exercise, that very exercise

discloses the same error that we point to on pages 3

and 4.

Now, could I go to ground 3 for the purpose of

making a similar point. Ground 3, my friend referred

to the passages around page 22, and this was a ground

which - grounds 2 and 3 dealt with the suggestion that

the applicant attempted to induce overservicing and

a suggestion that he did in fact induce overservicing.

The core of both of the grounds was that he offered a

commission for certain work referred by medical

Tl6 practitioners engaged by him.

Now, the passage at page 22, in the last

paragraph, is to the following effect:

This evidence and other evidence of a

similar nature which was relied upon by

the Tribunal ..... for the conclusion that

in offering, or paying, commissions to

medical practitioners working in the

practices ..... the appellant did so with

the intention of inducing the practitioners

concerned to make referrals whether or not

they were justified on clinical grounds.

C3Tl7/l/RB	24	5/12/88
Edelsten

Then there is a reference to the statements of

Dr Green and Dr Crickitt which I think my friend

did not refer to and I will go on to the point that

he made.

The question whether the offer of, or payment

of, the corrnnissions had the requisite tendency

is clearly a question of fact provided there

was some evidence on which such a finding

could be made.

Now, that is true; we accept that, but we submit that

there is an anterior question which His Honour failed

to consider, and that is the question of whether the

conduct was capable of having the requisite tendency.

And the offering of corrnnissions to a medical

practitioner is, we would submit, incapable of itself
of generating a tendency to overservice because

before - and the way the Medical Tribunal framed its

assessment of the constituent element of these

offences betrays the same error - because there is an

additional element that one must assume before such

an offer can have the tendency. The element is that

the medical practitioner to whom the off er is made is
not a medical practitioner in good standing or of

appropriate professional honour.

It is true, theoretically, I suppose, that if

one offered a corrnnission s,hall we say, Your Honour,

of $10,000 for referring a patient for ultrasound

treatment, then the extent of the corrnnission would be

so disproportionate that one could mount an argument

about tendency then, but the facts in this case do

not throw up that sort of extreme example and here,
the Medical Tribunal had to assume_ against the
applicant, in order for the requisite tendency to be

even capable of being thrown up by the act alleged,

that the offer of corrnnission would, in effect, corrupt
the addressee practitioner.

HIS HONOUR:  But is that a relevant element when you look at

the charges. The second complaint is simply that he attempted to induce, which puts the spotlight fairly

and squarely on Dr Edelsten's intention, not on the

recipient, and the third one, where he did in fact

offer an inducement, and that seems to stand

independently of whether or not the recipient acts on

it.

MR SWEENEY:	Your Honour, I would say this, that if the offer referred to, for example, in the third charge was not
an offer capable of having the requisite tendency, then obviously the third charge would have to fail as a
matter of law. All that was alleged in the third
charge, on its face, was the offering of inducements.
Now, Your Honour, if the corrnnission was not capable of
constituting an inducement, then since that was the
subject-matter of the charge - - -
Edelsten

C3Tl7/2/RB 25 5/12/88

HIS HONOUR:  But surely it was capable. If it was accepted,

it would, and therefore it was open to be

accepted - - -

MR SWEENEY:  No, no, that is the whole point I am seeking to

make.

HIS HONOUR:	Yes, that is what I had not grasped yet.
MR SWEENEY:	I am, of course, not putting it very well and

that is my fault, Your Honour.

HIS HONOUR:  You are too kind.

MR SWEENEY: It is not open - I will rephrase that - The acts

which were put against the applicant were the acts of

offering commission to medical practitioners as part

of the breakup of their total reward, that they would

receive first of all a fee for seeing a patient and

then a fee for referring patients for a particular

T17	test, shall we say ultrasound tests. Now, it is those
commissions which are identified in the charge as being
inducements to overservice.

There is a question of whether the applicant had

the requisite intention when offering the commission

and Mr Justice Clarke does deal with that. But there

is an anterior question, Your Honour, and that is

whether the offer of commission could properly be

described as an offer of an inducement to overservice.

It is not necessary for me to ask Your Honour to resolve

this factual issue because it is clear that

Mr Justice Clarke failed to take it into account, and

it is a critical issue.

If one accepts, for the purpose of argument, that

the commission level was not so high as to bespeak its

purpose on its face, shall we say, then there is an

issue about whether the offer of, or the payment of,

a commission for referral is capable of constituting an	inducement to overservice addressed to an honourable
medical practitioner. And our argument is that it is
not. Our argument before Your Honour does not have to
go that far; our argument before Your Honour need only
demonstrate that Mr Justice Clarke failed to consider
whether or not it was, and of course the vice with
getting into this sort of a submission is that before
one knows where one is, one is arguing the actual issue
of fact.

But, Your Honour, that is one of the things that

is wrong with the way the Court of Appeal has dealt with

grounds 2 and 3.	Then when Mr Justice Clarke goes on
to say:

C3Tl8/l/RB	26	5/12/88
Edelsten

The question whether the offer of, or

payment ..... had the requisite tendency

is clearly a question of fact -

is true enough, but what His Honour fails to say is

more important, and that is that the question of

whether the offer was capable of constituting an

inducement is a question of law.

Then my friend went to ground 2 at page 19 and

the way in which that is dealt with is referred to

at 19 point 3:

the Tribunal concluded that it was

impossible to avoid the inference that the

motive of the appellant was to encourage

overservicing by those medical practitioners

who entered his employment.

Then His Honour pointed out that the Tribunal was

obviously in error in attributing that as a motive,

whether or not it was his intention, and then further

on Mr Justice Clarke, at about point 7 on the page,

refers to the decision in RV MACHIN, the last

sentence of which is - it is a decision about doing

an act with the intention of perverting the course

of justice - the last sentence of the quote is:

The act must also have that tendendy.

Then His Honour goes on to say:

I would agree that the submissions of the

appellant may have force if the second

complaint was to be regarded in isolation.

But it was inextricably bound up with the

third complaint in which it was said that

the inducements had actually been offered - The problem with that, of course, is that if the

evidence on the attempt to offer an inducement was

insufficient to warrant an adverse conclusion, it

could not be shored up, contrary to what

Mr Justice Clarke said, by the evidence on the other

charge of actually offering an inducement, because

the actual offer of an inducement depended upon

different facts and what you have to show, in order

to show an attempt to offer an inducement, was the

same thing that I was making submissions about

before, an act which has the inherent capacity of

constituting an inducement, an attempt to do that act,

and then a finding of intention.

Now, one cannot find the intention from acts

the subject of later charges - that is to say actual

offers - and then transpose it back to the attempt

charge. And that is what Mr Justice Clarke has done there.

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Now, then I think, Your Honour, my friend went

to ground 4 and ground 4 is perhaps the most difficult

to deal with in this forum, but I can perhaps - - -

HIS HONOUR:  I wonder. if it is necessary to deal with it.

The case for a stay would possibly be made out

sufficiently if you succeeded in persuading me on the

first point, that there was room for doubt and
therefore that the BRIGINSHAW test could not have been

applied.

MR SWEENEY:  And it is fair to say that the reasoning is similar

throughout the judgment in relation to the other charges.

HIS HONOUR:  Although the weight of the evidence varies and I

would think the evidence with respect to Dr Hatfield

was perhaps the strongest. But still you do not have to

comment on that.

MR SWEENEY:	Your Honour, I am content to adopt that approach. There is evidence relating to the Hatfield charge that
one would want to weigh. in the balance, but I accept
the force of what Your Honour says.  My best point is
the point I made at the outset. What I am really
concerned to be doing in this reply is not as it were
trying to enhance the strength of my best point but as
it were trying to guard the back door against what my

T19 friend said. If Your Honour pleases.

HIS HONOUR:  I am grateful to counsel for their submissions.

I do not find the question, although it is perhaps

deceptively simple, an easy one. It is well established

that the jurisdiction to grant a stay of proceedings

pending the consideration by a Full Court of an

application for special leave to appeal is one that

will only be exercised in exceptional circumstances.

The primary point that gives rise to the existence of the jurisdiction, though it is not necessarily determinative of its exercise, is the question whether

a stay is necessary to preserve the subject-matter of

the litigation.

I conclude that that question ought to be answered

in the affirmative and therefore the inherent

jurisdiction to grant the stay arises. But there

remains the question whether the prospect that special

leave would be granted is more than illusory. This,

of course, is the question that is not without

difficulty in the present case. Nevertheless, despite

what Mr Hale has to say and the force of his submission,

I answer that question in the affirmative, although I may say that if there were not the prospect of an early

determination of the application for special leave to

appeal, namely later this week, I would need to spend

more time than is available now to go into the

C3T20/l/RB	28	5/12/88
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evidence and the facts more thoroughly. In effect

what I am now doing is simply granting a stay to

extend the stay that has operated in substance

since the adverse findings of the Tribunal some

months ago; I am only extending that stay for a

matter of days.

In the circumstances I am prepared to grant

the stay on the basis on which Mr Sweeney put it
at the outset, namely, that it should operate only
until the end of this week.

I take it that gives effect to what you

were saying?

MR SWEENEY:  Yes, I believe it does, Your Honour.

(Continued on page 30)

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MR SWEENEY: Yes, I believe it does, Your Honour. If it turns

out that our understanding is wrong, well then, we

will - - -

HIS HONOUR:  If your application does not get on on Friday,

I would be prepared to hear or sit again, or one of

my colleagues. I think you would need to make a

fresh application.

MR SWEENEY:  Yes. There seems to be no reason to fear that it

will not get on Friday, Your Honour.

HISHONOUR:  No. But just so there is no uncertainty, I think

if I impose a stay until 6 o'clock on Friday evening,

this coming Friday - - -

MR SWEENEY:  Thank you, Your Honour. I did proffer an undertaking

at an earlier stage too.

HIS HONOUR:  And subject to the undertaking of the applicant that

he will not vary his present form of practice, namely

that as an employee, I do not think there is room for
the usual undertaking as to damages, is there,

Mr Hale? It does not immediately appear relevant

but you are entitled to it if -

MR HALE: Perhaps one should be offered - yes, I think, perhaps,

we would ask for it if no - - -

MR SWEENEY:  I will seek some instructions, Your Honour.

HIS HONOUR: All right.

MR SWEENEY:	I am instructed to give that undertaking.
HIS HONOUR:	Yes, I think for the sake of appearances, if nothing

else, it ought to be exacted. So, there will be a stay

on the basis of those undertakings and limited until -

to expire at 6 o'clock on Friday evening unless further

extended by the Full Court.

MR SWEENEY: If the Court pleases.
MR HALE:	Do we need a direction that it go in Friday's special
leave application - - -?

HIS HONOUR:  No, I do not think so, Mr Hale. I hesitate to

direct the Full Court what it will hear and what it

will not hear.

MR HALE:	No, not what it will hear but, as I understand it, at
this stage it is not listed in the applications for
Friday.

HIS HONOUR:  I am sure the Registrar will list it. I have been

assured to that effect. That concludes the business of

the Court.

At 4.09 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 9 DECfil1BER 1988

C3T21/l/PLC 30 5/12/88

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