Edelsten v His Honour Judge Ward & Ors (1)

[1988] HCATrans 324

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.(2)

GORDON MESSITER

Sixth Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE. ON FRIDAY, 9 DECEMBER 1988, AT 3.50 PM

Copyright in the High Court of Australia

M1Tl3/l/PLC 1 9/12/88

MR C.A. SWEENEY, QC: If Your Honours please, I appear

with MR T. ALEXIS for the applicant. (instructed

by Shenker & Associates)

MR T. TOBIN, QC:  I appear, if Your Honours please, with

MR M. SEXTON, for the firth and sixth respondents.

(instructed by the Crown Solicitor for the State

of New South Wales)

BRENNAN J:	Yes.
MR TOBIN:	There are submitting appearances, I understand,

for the other respondents who are the members of

the medical tribunal, Your Honour.

BRENNAN J:  I would expect so.

Mr Registrar, have we have had any

indication?

THE REGISTRAR:  No. They submitted the other day

in the preliminary application .....

BRENNAN J:  We have no official indication, I understand, but I would expect that would be so.

Perhaps, Mr Registrar, if you would have

the court orderly call the names of the first

four respondents at the Court door.

I think you can proceed, Mr Sweeney, on

the assumption that - - -

MR SWEENEY:  If Your Honour pleases. Your Honours, the

best special leave point available to us is

the point based upon the reliance by the

Court of Appeal on the earlier decision

of that Court in AZZOPARDI.	What we say
in summary, Your Honours, is this;	AZZOPARDI

stands for the. propos,ition that a perverse

tinding of fact does not give rise to an appeal
in point of law.	The decision was a majority

decision of the Court of Appeal, the president

dissenting strongly.

There is a cognate decision of the Court of

Appeal in MAHONY's case in which, again by

majority, the Court of Appeal follows AZZOPARDI,

but Mr Justice Mahoney made statements

inconsistent with the correctness of AZZOPARDI.

So, as matters stand in the Court of Appeal in

New South Wales, there is a division of opinion

on, as we would submit, Your Honours, the important

question of whether the majority in AZZOPARDI be

correct, or whether on the other hand the approach

followed in the United Kingdom is preferable.

In our submission, it is the sort of point in respect of which special leave would be granted.

MIT13/2/JM	2	9/12/88
Edelsten(2)

BRENNAN J:  Do you have a copy of AZZOPARDI available?

MR SWEENEY:  Yes, Your Honour. Do Your Honours not have

could I refer in particular to what the

a list of authorities? I apologize for that.

president says at page 149, in referring to

the position in England?

Now, Your Honours, the relevant parts

of the judgment of the Court of Appeal are

at page 120 of the application book, and

Mr Justice Clarke,who wrote the leading judgment, says towards the foot of page 120:

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 raise any error of law -

and His Honour refers to AZZOPARDI and MAHONY.

He goes on to say:

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.

May I come back to that in a moment?

In fact, Your Honours, two closely related

questions are thrown up by what is on page 120

of the application book. The first one is, as

I have put it, whether or not the majority in

AZZOPARDI be correct.	The second one is
whether or not in the context in which the

Court of Appeal had to deal with it, AZZOPARDI
is relevant in any respect because what the

Court of Appeal was dealing with was a

BRIGINSHAW situation and even if AZZOPARDI

is correct, it would not seem to produce the

result that a tribunal which fails to apply

the special requirements in BRIGINSHAW

circumstances so as to produce an unreasonable

result makes only an error of fact. It would

ordinarily have been the situation, in our

submission, that in those circumstances an error

of law is plainly demonstrated. So that it may

be that the Court of Appeal made two errors if

AZZOPARDI be wrong, and one if it be right.

But the main point is the AZZOPARDI point

because the other point is, whilst a point of

law, not a unique one.

MIT13/3/JM	3	9/12/88
Edelsten(2)

BRENNAN J:  I am afraid for my part you will need to tell

me what the point is in AZZOPARDI which divided

the majority and the minority and how it is

that it arises on the facts of this case?

MR SWEENEY:  Yes. The point in AZZOPARDI is simply this,

Your Honour, that the majority holds that a decision which is so unreasonable as to be

perverse is a decision which reflects error of

fact alone. The president's dissent is to

opposite effect, that is that such error

indicates error of law. The context was the situation where there was evidence in aid of the conclusion to which the court below came.

It is not one of those cases, in other words,

Your Honours, where there was no evidence~

That is the other side of the coin. It was

one of those cases where there was evidence,

but the argument was that the finding was so

unreasonable in the light of the evidence that

it was perverse. So that is the division of

opinion in AZZOPARDI.

DAWSON J:  How did he say the question of law arose?

MR SWEENEY: In AZZOPARDI?

DAWSON J:  Yes.

MR SWEENEY: It arose because the Workers Compensation

Court - - -

DAWSON J:  I did not mean the particular circumstances;

as a matter of theory? I mean, one understands

perfectly well that if there is no evidence,

it is said to be a question of law, and that

has been questioned at times. But, when

there is some evidence but the fact-finding

tribunal mistakes its probative force, how

does the question of law arise?

MR SWEENEY:  The appeal from the Workers Compensation

Court is an appeal only in point of law.

DAWSON J: Yes, I appreciate that, but the mistaken

evaluation of evidence, even unreasonably,
is said by the president to be a mistake

of law. Perhaps you can direct me to how

he says that is?

MR SWEENEY:  Yes, of course, Your Honour. I have misunderstood

what Your Honour was asking me about.

DAWSON J:  No, it was my fault.

MIT13/4/JM	4	9/12/88
Edelsten(2)

MR SWEENEY:  No, I am sure it is mine, Your Honour.

The president preferred to follow the English practice which is summarized at the foot of page 149 of 4 NSWIR in cases which follow

EDWARDS V BAIRSTOW. Just reading from the
key passage of Lord Denning in INSTRUMATIC,
referred to further up on the page, at point 9

on the page, Your Honours, the Master of the Roll

referred to many tribunals where "an appeal

lies only on a 'point of law'", and so on, and that is

always interpreted "widely and liberally".

In such cases, if a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law, and its decision

can be reviewed by the courts.

So it is a fair summary of the president's judgment

to say that that is the view he preferred.

BRENNAN J:  But that is a different problem, is it not?

That is an inference case: primary facts found,

inference not open yet inference drawn. That

is a no evidence case.

MR SWEENEY:  Yes, that is true. I accept that, Your Honour.

Well, then, I had better add to that reference.

BRENNAN J: Yes, I think you had better.

MR SWEENEY:  In our submission, there were two things being

put by the president's reliance on what

Lord Denning said, and, Your Honour, the principal

point perhaps of the present application is the fact

that the appeals lying in point of law are

interpreted widely and liberally, and the example

that I read is given. But the president, for

exampl~ at 148 point 7, said:

If a trial judge can in the fact-finding

process reach perverse conclusions and yet

be immue from appeal confined to points of

law, clearly a judgment such as that now

under review would be outside the scrutiny

of this Court.

In this part of the dissenting judgment, which

starts at 146, the president is saying that

where you have the judgment of a judge as

opposed to that of a jury, the inscrutable verdict

of a jury, an appeal in point of law ought to

and does extend to correct an assessment
consequent upon the fact-finding process which

is so unreasonable as to be perverse. Now, that

is either right or wrong, but it is a view which

is apparently not - well, certainly not held by

the president; it is not held by Mr Justice Mahoney.

MIT13/5/JM	5	9/12/88
Edelsten(2)

There are various dicta one could go on for ever

collecting, but could I just give an example
of the sort of thing that is to be found all over
the place? The Chief Justice, in HOPE V THE CITY

OF BATHURST, 144 CLR, at page 7 point 9 was dealing with BRUTUS V COZENS and His Honour

said this:

The only question raised was whether the

appellant's behaviour was "insulting".

It was a question, Your Honours, of the construction

of a statutory term "insulting behaviour" and

the earlier part of the judgment was concerned

to make the distinction between construction of

statutory terms which were terms of art and

construction of statutory terms which were

ordinary everyday laguage, and the point being

made in the second that generally that was an

issue of fact and in that context His Honour

said:

The only question raised was whether the

appellant's behaviour was "insulting".

As it was not unreasonable to hold that

his behaviour was insulting, the question

was one of fact.

The implication seems to be that if it had

been unreasonable the question would have been

one of law.

The passage of Mr Justice Mahoney in the

Court of Appeal in the other case is to the same

effect. That is MAHONY V THE INDUSTRIAL REGISTRAR,

8 NSWLR and it was a case where the majority

followed AZZ.OPARDT~ The judgment starts at

page 1. So, Mr Justice Mahoney was dealing

with a case where this was the central issue

and at page 6, point 7, 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.

Very much the same sort of comment that

Mr Justice Mason made in HOPE V BATHURST.

So that, Your Honours, we submit that either

way that is a point that warrants determination

by the Court. Could I then - - -

BRENNAN J: Is there any distinction then between the

notion of "perverse" and "no evidence" on this

approach? In other words, if there is some

underlying factual stratum and the Court has

to make a finding based upon that, the question

MIT13/6/JM	6	9/12/88
Edelsten(2)

of whether the finding can be made must, of
course, be approached as a matter of reasonable

inference from the facts. If a resonable

inference can be drawn from those facts and

is drawn, so be it. If no reasonable inference

can be drawn, then one can characterize it

perhaps in one of two ways:  one is that the finding

is perverse; the second is that there was in truth

no evidence to support the finding.

MR SWEENEY:  The traditional way in which the cases

approach that issue seems to be that they

treat it as being an issue of whether the finding

is perverse or not, and there are judgments going

back to Sir Frederick Jordan and so on that

suggest -and they are to the contrary of the president's. dissent and supportive of

AZZOPARDI - that when there is some evidence

to support the conclusion, even though the

conclusion cannot rationally follow from the

evidence that exists and is therefore perverse,

that perversity attaches to the fact-finding

process and not to the process of legal reasoning,

and a distinction is strongly made in those

cases between that context and the other side

of the coin where one has the ability to say

there is no evidence whatsoever. The justification

for the distinction that runs through the cases

is that the party who complains on appeal that

there is no evidence is not a party met with the

problem of discharging the onus of proof.

Whereas the party who comes contending perversity

is a party who has to overcome both the finding of

fact against him and the problem that it is up to

the tribunal of first instance to determine the

facts.

So, Your Honours, that is the point. There

is a problem to some extent in the present case

in putting the point in context because the

various analyses which the Court of Appeal engaged

in in relation to the various particular findings

of the medical tribunal each depends upon an individual

approach to those findings of fact. Now, it is

our submission that the structure of the judgment

demonstrates that the key to the whole judgment

is the approach to the reasoning in AZZOPARDI,

and that is why it is found on page 4 of the

judgment. When one reads the balance the of the

judgment, the relationship between the AZZOPARDI
point and the non-application of the BRIGINSHAW

test point keeps reverberating through the

findings of fact and we would say, Your Honours,

that the balance of the judgment merely reflects
the errors which Their Honours made in formulating

the test for themselves, but they are individual

illustrations of the error or the application of the

error.

MIT13/7/JM	7	9/12/88
Edelsten(2)

The only other thing I wanted to say was

that there is a second point which concerns the

meaning of the expression "defining professional

misconduct" in section 27(1) of the MEDICAL

PRACTITIONERS ACT.

BRENNAN J: Before you go to that, ought you not to

address the point that you said you were going

to come back to?

MR SWEENEY:  Yes, Your Honour, I am obliged. I have

already in a sense addressed it, but may I

complete what I wanted to say? Mr Justice Clarke

said in the additionaL observation that he did

not think much of the argument for the

appellant on the facts, as it were, but,

Your Honours, the way in which His Honour dealt

with it makes it clear, in our submission that -

well, first of all, if one just simply stops

at that observation, that is, in our submission,

plainly the kind of observation which is indicative

of the fact that the decision has already been

determined by the AZZOPARDI approach and the

court would not, in our submission, as it were,
treat the case as one not throwing up the

AZZOPARDI question simply because the judge

adds the aside which His Honour describes as

an observation, that there are problems for the

argument on the facts. Now, that is rather

similar to what I wanted to say about the various

analyses of the facts, that is to say, if I can

put it in a summary way, that the way in which

the judgment of Mr Justice Clarke deals with
each of the findings of fact demonstrates,

as we would submit, that there is a preference

for inferences adverse to the applicant which

is inconsistent with the proper approach in

BRIGINSHAW and which illustrates the reasons

why Their Honours - - -

DAWSON J: This is in the judgment of the Court of

Appeal you are talking about?

MR SWEENEY: In the Court of Appeal. It illustrates

why Their Honours were not attracted to the

argument which is referred to on page 120 of

the application book, namely that the tribunal

had done no more than pay lip-service to

BRIGINSHAW for, in our submission, Their Honours

made precisely the same type of errors in relation

to the application of the BRIGINSHAW test as the

medical tribunal made.

DAWSON J: Could you give us some examples of that?

MR SWEENEY:  Yes, I can, Your Honour. One illustration

occurs at page 127 of the appeal book, at the

middle of the page, and the issue that Their Honours

are dealing with there, before I read the passage,

was the issue - - -

MIT13/8/JM	8	9/12/88
Edelsten (2)

DAWSON J:  We have read the judgment.

MR SWEENEY:  Thank you, Your Honour. The issue that

Their Honours were dealing with was the issue

of whether the evidence which supported the inference that Flannery had volunteered the information should be preferred to the

evidence that entitled the tribunal to

draw the inference that the applicant had

solicited the information.

Now, there are two things wrong with the

way the Court of Appeal dealt with it, Your Honours.

The first one is - and this is an error on the

face of the judgment, in our submission - Their Honours

say one possible inference is consistent with

innocence and a far more compelling inference is

not consistent with innocence. Now, Your Honours,

there is nothing to justify the statement that a

far more compelling inference is not consistent

with innocence and it is wrong, and in the teeth of BRIGINSHAW, to prefer an inference consistent with guilt unless one is effectively, in the

context of the gravity of that which is put, left

with no other reasonable conclusion. And the

Court of Appeal judgment makes it plain that there

was another reasonably open alternative which

Their Honours declined to follow.

(Continued on page 10)

M1Tl3/9/PLC	9	9/12/88
Edelsten(2)

MR SWEENEY (continuing):  There is a second thing wrong with

this approach on page 127.

DAWSON J:	I am not sure what the proposition you are putting is -
that if an inference consistent with innocence, if I
can use that word, is open, then they were not permitted
to make an inference in all the circumstances inconsistent with innocence; is that•what you say?

MR SWEENEY: Well, I may have put it a bit too generally, when

I said that, Your Honour. May I have another go at it?

DAWSON J:	Yes.
MR SWEENEY:	One takes into account, first of all, the seriousness

of that which is sought to be found, the seriousness

of that which the tribunal is invited to find. Then

one says, "Well, what are the possibilities?" And

if there are a number of possibilities, one is slow,

perhaps extremely slow, to prefer a possibility which

is adverse to the person being investigated and one

does not prefer an adverse conclusion, for example,

simply on total equality of the scales. Having regard

to the nature of that which was alleged here, we would

say this: that BRIGINSHAW requires that if it is

reasonably open for a favourable inference to be

drawn then it is an error for an adverse one to be

preferred, because, if it is reasonably open for a
favourable inference to be drawn, BRIGINSHAW is not

satisfied, in our submission, by the preferring of

the adverse one. One only makes an adverse finding

in those circumstances where one is persuaded to the

point of comfort consistent with the seriousness of

that which one is being asked to find and, in those

circumstances, it is unexpected to find the use of

language like, "one possible inference and a far more

compelling inference," for that is the sort of

language that one finds in the civil courts in ordinary

co1Im1ercial and civil matters. That is the way one

determines ordinary issues of that kind.

DAWSON J: Does it amount to this? You say that where there are

competing inferences an adverse inference should only

be drawn where the reasons are compelling,having

regard to the seriousness of the charge?

MR SWEENEY:  Yes.

DAWSON J: Yes, I follow.

MR SWEENEY:  Of course, BRIGINSHAW is one of those areas where

it is very difficult to formulate the description of

the thing which one has to find, but it is sometimes

easier to recognize it. But, Your Honour, that is the

best effort to encapsulate it that we can make.

DAWSON J: Yes.

M1Tl4/l/VH	10	9/12/88
Edelsten(2)

MR SWEENEY:  I was going to say there is a second reason why

this finding illustrates an incorrect perception of

what BRIGINSHAW requires and the second reason is

this: Your Honours will see that Mr Justice Clarke

confirmed His Honour's self in that finding that we

have just been looking at by what he said at the

foot of page 127 and over to the top of page 128,

referring to a conversation between the applicant

and Mr Masters, and the relevant part of the

conversation for this issue is at the top of 128
where Mr Masters' evidence refers to the fact that

the applicant said:

I raised it with him.

Now, of course, that evidence does not confirm the conclusion to which Mr Justice Clarke came, but the

problem with that evidence is to be found at page 13

of the application book, and this is a passage from

the judgment of the medical tribunal. Could I ask

Your Honours to look at page 13 point 9; Mr Masters was cross-examined about the statement that he had

made that the applicant had said:

I raised it with him.

And he is recorded as having said:

"No, he didn't say he sought out the

painter and docker, I would agree."

And that critical passage in the cross-examination

which denies the force of what Mr Justice Clarke relied

upon at the top of 128 is not referred to by

His Honour and it is impossible, we submit,for a

BRIGINSHAW approach to be satisfied where you are

shoring it up by reference to that part of Mr. Masters'
evidence which suggests that the applicant did raise

the issue if you do not refer to the cross-examination

on that issue where he accepts that the opposite is

the case. And that is an illustration. The judgment

is replete with similar examples and unless

Your Honours want me to do so I will not take

Your Honours through them. So that, in our submission,

the case warrants the grant of special leave because

it involves the important points of law to which I

have referred.

BRENNAN J: Just let me interrupt you there. The AZZOPARDI

point arises only if BRIGINSHAW was not applied; is

that correct?

MR SWEENEY:  No, it arises independently.

BRENNAN J:  How is that? If BRIGINSHAW was duly applied, was

there any problem about AZZOPARDI?.

MlT14/2/VH	11	9/12/88
Ede ls ten ( 2)
MR SWEENEY:	Yes, there is, Your Honour.	BRIGINSHAW was

either correctly applied or not and then the question

is whether AZZOPARDI is right or not and that

seems to be an independent point.

BRENNAN J:  But how does it arise? I do not understand how

it can arise if - - -

MR SWEENEY: Well, Your Honour, if BRIGINSHAW was not applied

correctly, AZZOPARDI does not matter because

the BRIGINISHAW non-application is itself a point of

law. But if BRIGINSHAW was applied correctly, then

the question arises whether - oh, I see what Your Honour

is saying - Your Honour is saying that if - - -

BRENNAN J:	The facts of public innocence.
MR SWEENEY:	Yes, I quite accept that. Please accept my

apologies for being so slow, Your Honour. Yes, if

the BRIGINSHAW test is correclty identifieJ and

applied, you cannot get to the end of the BRIGINSHAW

trail unless you have cleaned up everything.

BRENNAN J:  Yes. Well now, if BRIGINSHAW is not correctly applied,

that is, if there was a clear understanding that

BRIGINSHAW ought to have been applied but it was not, then that is the end of the matter in the opposite

direction.

MR SWEENEY:  Yes, it is.

BRENNAN J:  AZZOPARDI does not arise anyhow. It is BRIGINSHAW

or nothing.

MR SWEENEY:  Yes, so it seems, Your Honour. Well, the only

other thing I wanted to say was, there is a question

which the case throws up of the meaning of section 27

of the MEDICAL PRACTITIONERS' ACT.

DAWSON J: Is that set out somewhere, Mr Sweeney, in the judgment?

MR SWEENEY:  Yes, it is~ It forms a substratum of proposed gnound

of appeal (e) on page 179 of the application book, and

could I tell Your Honours very shortly what the point

is, because it is a short point. The relevant

passage in the judgment is at 122 of the application

book. The section describes professional misconduct

under a number of different subparagraphs, the first

one of which relevantly is:

Has been guilty of misconduct in a professional

respect.

And the argument - section 27(1) opens with the expression:

as a registered medical practitioner.

M1Tl4/3/VH	12	9/12/88
Edelstein(2)

So, the question is whether that which follows

is limited to conduct performed qua medical

practitioner or whether it means something else.

It was argued that it meant "conduct only qua

medical practitioner". The Court of Appeal found

against that submission on the basis that

subparagraphs (a) and (b) plainly are not

capable of being explained by that argument and

therefore the Court of Appeal gave it an alternative

construction, that it simply meant "conduct engaged

in whilst having the capacity of a medical

practitioner".

Now, we would want to make the submission,

first of all, that the Court of Appeal was in

error in attributing to subparagraphs (a) and (b)

a significance inconsistent with the argument

and secondly, that the alternative meaning which

the Court of Appeal gave to "as a registered

practitioner" is entirely unsatisfactory. As to

the first point, we would say, Your Honours, that

(a) which deals with being convicted in New South

Wales of an offence and (b) which deals with

being guilty of habitual drunkenness and addiction

are just as apt to be limited to conduct as a

medical practitioner as the balance of the section.

It is still an open question, Your Honours,

whether the whole of the section is confined to

conduct qua a medical practitioner, but it is

clear, in our submission, that Mr Justice Clarke's

reasoning was incorrect.

Now, the second thing that we say is that

His Honour's reasoning, coming as it did to the conclusion that the qualification meant only

that you had to engage in the conduct whilst you

were a medical practitioner, is unsatisfactory for

another reason. It is odd, we would submit, for
conduct reflecting character to be relevant if the

conduct occurs whilst you are a medical practitioner

and not be relevant occurring before you became a

medical practitioner. If the conduct shows bad

character, we would suggest that it does not matter

when you engaged in the conduct. Of course, there

is another question of whether your character has

changed, but it should not matter when you engaged

in the conduct, the critical question should be, "Is

it conduct which marks you'qua medical practitioner'

as a person who is unfit?"

BRENNAN J:  Is that the question or is it a question of what

is the character that you bear as a registered

medical practitioner?

MR SWEENEY:  What is the character, yes, but I am - - -

BRENNAN J: In other words, the character may flow from the

conduct and it is the character and registration

which must be contemporaneous, not the conduct of

registration.

MlT14/4/PLC Ede ls ten ( 2) 13 SWEENEY, 9/12/88

MR SWEENEY: Yes, I accept that, Your Honour. Could I give

an illustration of why we submit the Court of

Appeal's approach is incorrect? Take ZIEM's

case, Your Honours, which was that barrister who

had the misfortune of knocking down someone whilst

driving a motor car and was convicted of manslaughter.

That sort of fact situation illustrates the point to

which section 27 is directed.

Now, it is possible, without discomfort, in our

submission, to contemplate that a character-affecting

incident may indicate that a person is, for example,

not a fit person to have a motor driver's licence or
not a fit person in some other limited capacity;
perhaps, for example, not a fit person to be entrusted
with trust moneys but at the same time not be

indicative of the fact that the person is not fit

to practice medicine. And that is what, in our

submission, the qualification "as a registered

medical practitioner" is directed to and that is

why the Court of Appeal's approach was wrong. And

in making the error that Their Honours did, the

Court of Appeal reflected an error that the

Medical Tribunal had made of failing to address

themselves to the question of the relationship, if

any, between the findings of bad character against

the applicant and his status as a medical practitioner.

So that is our second point.

BRENNAN J: Can I understand that precisely, Mr Sweeney? Is

it said that the findings that were made of "not of

good character" are not findings which can satisfy

those words in 27(l)(d)?

MR SWEENEY: In the present case?

BRENNAN J: Yes.

MR SWEENEY:	Yes.
BRENNAN J: And why is that?
MR SWEENEY:	Because the findings of bad character were findings

about conduct other than the practice

of the applicant's profession.

DAWSON J:	The Flannery findings.
MR SWEENEY:	Yes.

BRENNAN J: You mean that the misconduct which gave rise to

the character, if it occurred, was - - -

MR SWEENEY:	"Qua medical practitioner".
BRENNAN J:	- - - misconduct which did not occur in the course

of the medical practice?

MR SWEENEY: That is so, Your Honour. There is no doubt about

that. This is the first charge which is the only

charge relating to character.

M1Tl4/5/PLC 14 9/12/88

BRENNAN J:  But the character is said to appear from conduct

which was calculated to be damaging to somebody

who had been a patient.

MR SWEENEY:  I understand that, Your Honour. There are two

things about that. In the first place, the person

had never been a patient of this doctor. He had

been a patient of one of this doctor's clinics but

of another doctor. In the second place, the

approach to Flannery was an approach to someone

who had himself been a patient. So that there are

those two somewhat tenuous nexus
with professional practice. But the approach
was not in the course of practice or for the purpose

of practice. It is always a question, of course,

Your Honour, whether something done, as it were,

after hours bears upon fitness for practice.

BRENNAN J: What would you say, for example, about a doctor

who over-indulges in pethadine?

MR SWEENEY:  Your Honour, that is a good illustration because

it is one of the subheadings in 27(1).

BRENNAN J: Of course, yes.

MR SWEENEY:  And could I take something that I feel a little

more comfortable with? A doctor who is habitually

intoxicated: if, for example, that doctor spent

most of the weekends in an inebriated state

but did not practise on the weekends, and there

was nothing else, then one could not find, in our

submission, that that adverse personal performance

bore in any way upon his fitness to practise

medicine or upon his character as a medical

practitioner, to use the critical words.

Now, if one has the example of an abuse of

a restricted drug, then there may be a complicating

factor about how the doctor got access to the

drug but the contrast I would make on 27(l)(a)

is between the doctor who drinks on the weekend

to excess and a doctor who is to be found either

in his surgery or in serious peril of being in his

surgery and lacking in control over himself and

we would say those two illustrations fall on

opposite sides of the line and they illustrate
that what the Tribunal needed to do was to address

the question of just what impact the conduct found

had upon the capacity of the applicant to practise.

Of course, when the matter came to the Court of

Appeal - there are two legs to it. There is a

BRIGINSHAW complaint about the actual findings

and then there is a complaint that the analytical

approach is wrong for reasons which I have put to

Your Honours.

,cl r.

MlT14/6/PLC	15	9/12/88
Edelsten(2)

BRENNAN J:  But the question of whether or not the character

which emerged from the Flannery conduct alleged

against the applicant is character of a kind which

unfits a person to be a registered medical

practitioner is not simply a question of law, it is

also a question of professional standards, is it not?

MR SWEENEY:  Yes, it is. We would say that by the time the

matter comes to the Court of Appeal the question is rather different. The question is whether it bears

that capacity.

BRENNAN J: Whether it can be reasonably regarded as that.

MR SWEENEY:  Yes. And we would say, first of all, they got

the facts wrong because they misapplied BRIGINSHAW

and if they had got the facts right they would have

found something entirely different. But even putting

that aside, they failed to address the question of

the relationship of what was found and the

circumstances in which it was done to the

capacity and propriety of the man continuing to

practise medicine. And that error is clearly

illustrated, in our submission, at the Court of

Appeal leave in the appeal book at page 122 point 5

and over the page where Their Honours reached the

wrong conclusion about what the limitation means.

Your Honours, those are our submissions.

BRENNAN J:  Thank you. The Court will adjourn briefly to

consider the course which it should continue to

take in this matter.

AT 4.37 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.40 PM:

BRENNAN J: The Court need not trouble you, Mr Tobin.

At the forefront of the applicant's case in

this matter is an attack upon the majority decision

of the Court of Appeal in AZZOPARDI V TASMAN UEB

INDUSTRIES LTD, (1985) 4 NSWLR 139, which was said

to be erroneous, the error being such as to infect
the review by the Court of Appeal of the findings

of fact made by the tribunal.

As at present advised, the majority decision

in AZZOPARDI seems to be right but in any event the
problem does not arise unless the tribunal

misdirected itself in finding facts adverse to the

M1Tl4/7/PLC	16	9/12/88
Edelsten(2)

applicant. The standard which was expressly adopted

by the tribunal was the standard in BRIGINSHAW V

BRIGINSHAW, 60 CLR 336, but it is said that was not,

in truth, the standard applied. However,

Mr Justice Clarke, speaking for the Court of Appeal,

made 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".

Mr Justice Clarke's observation was itself

attacked on the ground that His Honour had himself

mistaken the true requirements of BRIGINSHAW. Reading

the judgment of His Honour, we do not think that there

is sufficient substance in the attack to warrant the

grant of special leave.

A further ground of appeal is founded on

section 27(1) of the MEDICAL PRACTITIONERS' ACT

1938-1987 which provides in its relevant parts as

follows:

Where a complaint that a person, as a

registered medical practitioner -

(d) is not of good character,

is made to the investigating committee in

accordance with subsection (lA) by any

person, the investigating committee shall,
subject to subsection (lC), investigate

the complaint.

However, the character of the applicant as revealed

by the conduct found against him by the Medical

Tribunal was capable of supporting the finding that the applicant, being a registered medical

practitioner, is not of good character.

In those circumstances, special leave must be

refused.

MR TOBIN:	I would ask for costs, Your Honour.
MR SWEENEY:	I have nothing to say, Your Honour.
BRENNAN J:	It will be refused with costs.

AT 4.43 PM THE MATTER WAS ADJOURNED SINE DIE

MlTlS/1/PLC	17	9/12/88
Edelsten(2)