Edelsten v His Honour Judge Ward & Ors (2)

[1988] HCATrans 318

~

~ ;;;-~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No M88 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(3)

GORDON MESSITER

Sixth Respondent

Application for a stay

BRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 DECEMBER 1988, AT 4.53 PM

Copyright in the High Court of Australia

M1Tl6/l/RB 1 9/12/88

HIS HONOUR:  Mr Sweeney, the Registrar tells me you have an application to make.

MR C.A. SWEENEY, QC:  We have, Your Honour. I appear with

MR T. ALEXIS for Geoffrey Walter Edelsren (instructed

by Shenker & Associates) and the application is

for a stay of orders of the Medical Tribunal to

the effect that our client be struck off.	The
present situation is that we have from

Mr Justice Wilson a stay which was in aid of our

recent unsuccessful application for special leave and which expires at 6.00 pm tonight. Therefore,

the status quo today is that he is on the register

and, in fact, practising, Your Honour.

HIS HONOUR:  Mr Justice Wilson's order, I think, is in the appeal book, is it not?

MR SWEENEY: It is.

HIS HONOUR:	And is it in the same form that you seek here?
MR SWEENEY:	Except for the expiration time, yes, Your Honour.
HIS HONOUR:	Yes, of course.
MR SWEENEY:	And we are instructed to give the same undertaking.

The basis on which we seek the stay now is as follows:

by summons in the Court of Appeal we seek orders
of prohibition directed to the Medical Board,

effectively, to prevent them from acting upon the

Medical Tribunal's striking-off orders.

HIS HONOUR:	Do you have a copy of the legislation available?
MR SWEENEY:	Yes.  I think Your Honour's associate has a

copy of the summons.

HIS HONOUR:  Do you have a copy of the Act?

MR SWEENEY:	The MEDICAL PRACTITIONERS ACT, Your Honour?
HIS HONOUR:	Yes.
MR SWEENEY:	Yes.
HIS HONOUR:	Now, what is the power which the Medical Board

is proposing to exercise in respect of which the

order of prohibition was sought?

MR SWEENEY:  When an order is made - I will just turn up

the section - but the effect of it is that the

Medical Board shall remove his name.	I will just
see if I can find the section.	The starting point,

Your Honour, is section 32R(l)(g)(ii) and then one goes, Your Honour, to 32R(6).

MlT16/2/AC	2	9/12/88
Edelsten(3)

HIS HONOUR:  That is an order by the Tribunal, is it not?

MR SWEENEY: Yes. It does not seem to be express,

Your Honour, and it may be that 32R(6) takes

effect of its own force.

HIS HONOUR:	Yes.
MR SWEENEY:	And the act of taking the name off the register

is merely a ministerial act.

HIS HONOUR:	Yes.
MR SWEENEY:	That does not matter to our present position

because one of the defendants to our application

in the Court of Appeal is the Medical Tribunal

and prohibition is sought against the Medical Tribunal

as well, I think, and the board.

HIS HONOUR:  What is the order which presently affects your

client's registration?

MR SWEENEY:  The second judgment of the Medical Tribunal

which is in the application book, I think, for

our last application.

HIS HONOUR: It does not seem to have - - -

MR SWEENEY: It starts at page 95 of the application book,

Your Honour. And the Medical Tribunal suspended

the effect of its orders until 6 December to enable

us to make the application which we made to

Mr Justice Wilson.

HIS HONOUR:	Now, where is that?
MR SWEENEY:	That is at page 105 of the application book.

What happened was we foreshadowed our wish to make

an application for a stay and when the Tribunal

handed down its orders it, in fact, embodied a

stay in the orders.

HIS HONOUR:  Yes. Now, according to 32R(6) the order of

the Tribunal takes effect, according to its terms,

on 6 December.

MR SWEENEY:  Yes, except that there were supervening orders

of the Court that that order not take effect - that the order of the Medical Tribunal,to the extent to which it would otherwise have taken effect on

6 December,was ineffective pro tern.

HIS HONOUR:  Yes. What power are you asking me to exercise?

MR SWEENEY:  That is the status quo at the moment, Your Honour.

M1Tl6/3/AC	3	9/12/88
Edelsten(3)

HIS HONOUR:	Yes.
MR SWEENEY:	We ask Your Honour to exercise the power of the

Court in aid of the preservation of the subject-

matter of applications for special leave. The

judgment of the - could I go back a step? In the

summons for prohibition in the Court of Appeal,

which Your Honour has, an interlocutory application

as it eventuated, was made yesterday and today

for a stay of the Medical Tribunal's orders upon

two grounds - two main grounds and some subsidiary

grounds. The two main grounds depended upon the

following factual contentions: that when the
Medical Boar~ which has under the Act the power
to nominate other than the presiding officer of
the Medical Tribunal, appointed what I will call
the first lot of people to the Medical Tribunal,

they appointed as one such member a medical practitioner

against whom serious allegations of misconduct

had been made.

The summons proceeded on the basis - the

application pursuant to the summons proceeded on
the basis that if it were established that the
Medical Board making that appointment - I should
say something else before I come to this. In the
events that happened that person did not sit because

information reached our client and his then senior

counsel, Mr Sperling, waited upon the presiding

officer of the Medical Tribunal with what was,

in effect, an application for that person to be

disqualified. In the event the person did not

sit and the hearing proceeded - no other step was

taken by Mr Sperling - to the adverse findings

of which Your Honour is aware.

Now, in those circumstances,what was put to

the Court of Appeal yesterday and today was that
if it could be established for interlocutory purposes

that it was true that the person initially appointed

was a person against whom serious allegations had

been mad~ or a fortiori a person who had been guilty

of serious misconduct, and if it appeared that
the Medical Boar~ or some of its members, was or

were aware of those facts, whichever way they

are put, prior to the time of appointment, then
that generated an inference that the appointor

could not have made that appointment bona fide for the purposes for which the statutory power

of appointment was given. And it was, accordingly,

an appointment in bad faith and void. Alternatively

HIS HONOUR: Is it alleged that the appointor knew of the

allegations made against the appointee?

M1Tl6/4/AC	4	9/12/88
Edelsten(3)
MR SWEENEY:	Yes.	I have to come to the detail of how

that was alleged because simply to answer "yes"

is not a complete picture but yes in the way in

which I will describe, Your Honour.

I had got to the stage where I had told

Your Honour that the contention put to the Court

of Appeal was that if those facts could be established
they generated the inference that the appointment

of that person was an appointment in bad faith,

and it might be added conveniently here, an

appointment which would generate, in any event,

a reasonable apprehension of bias - for one of the

incidents of the circumstances surrounding that

person was that it was put that the person was

in a situation where he was, to some extent at

least, in the mercy of the Health Department as

to what happened to him.

Now, so far all we have in the argument is

an assaul~ which if successfu~ is directed at the

person who did not sit. But then the argument

was advanced that if those findings were made about

that appointment those findings generate~ at least

on an interlocutory basis, the inference that the

other people appointed at the same time were appointed
with the same purpose alien to the statutory power.

Now, the Court of Appeal, Mr Justice Samuels presiding,

made the observation on a number of occasions that

the relevant facts said to ground the argument

were known, at least in some form, to Mr Sperling

and he took a particular course and did no more

at the time. It must be accepted that those

observations of Mr Justice Samuels are quite correct.

But the argument is that if the appointment of
the others is tainted in the same way as the appointment
of the person who did not sit then no erro~ or

waiver, or election of counsel then appearing would

deter a court from making a stay order. For on

one view the appointments were a nullity and on

another view the appointments so grounded a reasonable

apprehension of bias as to overcome the inertia

at the time.

Your Honour, the Court of Appeal - there was a lot of evidence and, first of all, there was

documentary evidence about the allegations against

the person and there was some evidence about the

nexus between - I am sorry, that documentary evidence

establishes that the allegations were well known

and widely circulated inside the Department of before the appointment of this person by the Medical

Board. Other evidence established that there was

a representative of the Health Department on the

Medical Board when it made the appointment.

M1Tl6/5/AC	5	9/12/88
Edelsten(3)

The other thing was that it was agreed between

counsel that there was someone who held an office
in the hospital which had been concerned to conduct

the inquiry into these affairs on the Medical Board

as well. And so we said that the inference was,

especially in the absence of an answer, that the the facts.

HIS HONOUR:  Have the facts been litigated to the point

of an ultimate finding?

MR SWEENEY:  No. The only thing that happened today was

that an interlocutory application for a stay was

refused.

HIS HONOUR:  Well then, if you would be seeking any order

from this Court by way of special leave it would

be against that refusal of the interlocutory order?

MR SWEENEY:	Yes.
HIS HONOUR:	Without any final findings of fact being made.
MR SWEENEY:	Yes.  That seems to be right, Your Honour,

because, and now comes the hard part - but before

made by the Medical Board. It appears from

I come to that, may I just say something else?

documentary evidence that the - - -

HIS HONOUR: 

Were made by the Medical

MR SWEENEY: 

Board. It appeared from documents tendered

in evidence that subsequent appointments were made
by the President of the Boar~ under a delegated
power from the Board, but that subsequent appointment
reappointed one of the people originally appointed.
And the argument goes that if the purpose attached

to the appointment in the first place, it runs
on.	The reason why we may not have as much trouble

about the factual issues as one normally does on

an application for special leave in an interlocutory

context, Your Honour, is this - there is a problem

with what I say next and the problem is that the

judgment was given after we left Sydney. So I am

now telling Your Honour not of my own knowledge

but of what was reported to me on the telephone

by Mr Sackville, who appeared for the Medical Tribunal,

and, of course, neither of us was aware that he

was giving me a record that I would have to depend

upon.

But it appears from what Mr Sackville said

to me that the judgment of the court, which was

unanimous against us, was a judgment which proceeded

MlT16/6/AC	6	9/12/88
Edelsten(J)

in the following way:  Mr Justice Samuels delivered

the leading judgment and His Honour, as it were,

assumed in our favour the various factual issues

that we contended for, or said if it were assumed

in the applicant's favour, and found against us

on two heads, apparently, the first one being

that it was not arguable that a bad faith purpose

in respect of one appointee flowed over to the

whole class of appointments. And then His Honour

said, in any event, because the remedy is discretionary,

His Honour would refuse to grant relief because

counsel appearing at the time did not take any

steps.

So that if that is a correct report of what happened the only problem that we would face in

our submission before Your Honour, apart from the

gross irregularity and no documents and all that,

is this: we would have to persuade Your Honour,

first of all that it is of sufficient importance

and secondly, that the concept that an appointer

appointing one person for a purpose foreign to the

statute who is, in fact, appointing three people

is someone who in those circumstances it can logically

and cogently be said would be more probable than

not to have had the same purpose in respect of

all the appointments.

Now, what we put to Mr Justice Samuels was

that a rational person knowing these facts could

not exercise the power of appointment under the

Act for the purpose for which it was given which

is, by implication, to enable a professional and

knowledgeable body to appoint a person of undoubted

professional standing and objectivity to perform

tribunal functions. That could not possibly have

been the purpose and if that was not the purpose and the appointer was rational, he must have had

a foreign purpose in respect of all the appointments.

That is our argument.	And if the Court of Appeal
is right and my understanding of the structure

of Their Honours'judgment is correct then the judgment

stands for the proposition that that argument is

not tenable as a matter of logic or law.

In our submission, the argument is tenable.

In our submission, it is compelling. In our submission,
it should be given a chance to survive by the making

of an order which preserves our client's subject-

matter, that is to say, his name on the register

until our application for special leave to appeal

from that judgment can be made.

HIS HONOUR:  Mr Sweeney, I would like your assistance on

two points. The first is whether there is jurisdiction

in the Court to make an order which would have

the effect in substance of negativing the

statutory provision wnich appears in section 32R(6)?

MlT16/7/AC	7	9/12/88
Edelsten(3)

In other words, how is that an order made by a

court can override the statutory injunction that

the order made by the Tribunal takes effect as

that subsection prescribes. Second is that even

if that point be made good, why is it that an

interlocutory order made by the Court of Appeal
in New South Wales should found not only an

application for special leave to this Court which

would be faced, of course, with its own difficulties,

but more particularly the intervention by way of

the extraordinary power of this Court to grant

interlocutory relief in this Court?

MR SWEENEY:  Could I deal with the second question first,

Your Honour, because it is fresh in my mind?

HIS HONOUR:	Yes, of course.
MR SWEENEY:	Mr Justice Samuels said, as it is reported

to me, that the view that the court took was a

view that would not be changed on a final hearing

and that follows from the approach that His Honour

adopted of targetting in on the issue of whether

it was arguable that this kind of chain of purpose

existed. So that, in truth, the true character

of the subject-matter of an application to the

Court is that, whilst in appearance interlocutory,

it is in reality final. The matter has been listed

in the mentions list on Monday and there appears

to be some vie~ which I think might have been

expressed, that there really is not much point

in the plaintiff going on in the light of the court's

judgment.

HIS HONOUR:	Yes.
MR SWEENEY:	Now, could I go to Your Honour's first question.

The Act provides - - -

HIS HONOUR:  If I might say so, you have not answered my

second question. The proposition to which I want

to direct your attention is this: there seems
to be a broad notion that if there is an order

made by an intermediate appellate court and it

is desired to challenge that decision on an

application for special leave to this Court then,

perhaps almost as a matter of course, an application

for an injunction or some other interlocutory relief

is granted whereas the authorities in this Court

make it perfectly clear that it has to be an

extraordinary case before this Court's intervention

by way of interlocutory relief will be invoked

or granted.

MR SWEENEY: Yes. In our submission this is an extraordinary

case. If it is otherwise made out, just as

Mr Justice Wilson made a stay the other day, the

MlT16/8/AC	9/12/88
Edelsten(3)

case is extraordinary because the making of a stay
order, or an order in the effect of a stay, is
the only way in which the status quo can be preserved
and, Your Honour, the status quo not being preserved

substantially destroys the subject-matter of the application for special leave. May I illustrate

in the present case. If our client's name were

removed from the register and this application

for special leave were granted, he would still
stay off the register even if our appeal succeeded
because whilst there is power in the supreme court

to prevent the name being removed from the register,

once the name has been removed from the register

it is not clear that there is a power to order

it to be restored, except, of course, in the rare
circumstance where the Court of Appeal was able

to give a judgment which totally disposed of the

Medical Tribunal's subject-matter.

To take the analogy with administrative law,

it would be one of those rare cases where the court

might say, "Well there is no point in sending this

back to the administrative body", but that contingency

is so remote as to be one that should be put to

one side, Your Honour, so that that aside, the

only way in which the subject-matter of the application

for special leav~ as well as the status quo, can

be preserved is by the making of a stay order.

So that is why the case is extraordinary within

the test required.

HIS HONOUR:	But if the name is removed and the order under which it is purportedly removed is set aside then
the situation is that it is as though the name
were not removed, is that not so?
MR SWEENEY:	But, Your Honour, we would not get a judgment,

even assuming success, from the court to that effect,

all we would get is a judgmen~ In view of the judgment

which on this hypothesis we ought to have got from

the Court of Appeal, reversing the refusal of the

Court of Appeal and no doubt remitting the matter

to the Court of Appeal, what we moved for in the

Court of Appeal was a stay of - - -

HIS HONOUR:  I appreciate that. What I am putting to you

is that if you should succeed at the end of this

litigation to which you have taken to the stage today

in New South Wales, the order which you are seeking

is one of prohibition and one, I take it, which

quashes the order of the tribunal.

MR SWEENEY: Effectively, yes.

HIS HONOUR:  So that there is no order which, on that hypothesis,

is susceptible of being operated upon by section 32R.

M1Tl6/9/AC	9	9/12/88
Edelsten(3)

MR SWEENEY:	Yes.
HIS HONOUR:	And in that event, and only in that event, at the

end of the litigation is your client's name seen

to have never been removed validly from the register.

MR SWEENEY:	Yes.
HIS HONOUR:	Well now, why is it that that is not precisely

the subject-matter of the litigation which is to
be preserved? In other words, so long as that

decision stands, albeit voidable as it is, then

the name is removed; when the decision, if decision,

should be set aside as having been avoided then

the situation is as though the order had not been

made.

(Continued on page 11)

MlT16/10/AC	10	9/12/88
Edelsten(3)

MR SWEENEY:  Yes. If we had been successful in the Court

of Appeal today we would have preserved the

status quo -

HIS HONOUR:  You would have preserved the position in the

interim?

MR SWEENEY:	Yes.
HIS HONOUR:	Yes.
MR SWEENEY:	I accept the force of what Your Honour says.

If we do not get a stay from Your Honour the name

goes off the register. If our appeal in the

High Court is subsequently successful, presum~bly

the matter would be remitted to the Court of Appeal.

HIS HONOUR:	On the substantive ground this is?
MR SWEENEY:	Yes.
HIS HONOUR:	Yes.
MR SWEENEY:	We would remain off the register unless and

until we got a favourable judgment from the

Court of Appeal, and the contrast is that if we

had been dealt with on this argument according to

law today we would never have been struck off.

HIS HONOUR:	Yes, I understand the position.
MR SWEENEY:	In our submission that is sufficient to

constitute the extraordinary category.

HIS HONOUR:  You were going to address me on - - -

MR SWEENEY: Subsection (6).

HIS HONOUR: Subsection (6), yes.
MR SWEENEY:	The supreme court has a power to exercise the

powers of the tribunal which is contained in

subsection (10). There is also a power somewhere

else. Section 32U, Your Honour, especially U(2)

which deals directly with Your Honour's concern
with subsection (6). That invests the supreme

court with power to stay an order of the tribunal

and accordingly on appeal from the supreme court

that power exists here.

HIS HONOUR:	Why is that?
MR SWEENEY:	Because, Your Honour, the  subject-matter of

our application in the supreme court was an

application which,if it had been dealt with

according to law on our argument,would have

resulted in an order staying the order of the tribunal.

M1Tl7/l/MB	11	9/12/88
Edelsten(3)

We seek by way of application for special leave and the subsequent appeal orders directed to the

supreme court calculated to produce a 32U(2)

result and, accordingly, the court has power to

grant an interlocutory order to preserve the

status quo in the mean time.

HIS HONOUR:  I hear what you say but it seems to me that the

only way in which that would be effective would be if this Court could and would grant an order

in the nature of a mandamus to the supreme court

ordering it to exercise the power which is uniquely

conferred upon it by 32U(2).

MR SWEENEY:  Your Honour, there are two submissions that I

would rr.ake. First of all,an order of the Court

in the exercise of the inherent power is an order,
the effect of which is not precluded by anything
in this Act and - I think there is only one thing

I want to say - such a construction would not likely be given in any event and accordingly whilst it

does not have the same drama as the circumstances

of cases like the TAIT case, it is clear, in our

submission, that the Court does have that power.

HIS HONOUR:	Yes.
MR SWEENEY:	Now, Your Honour, there were some other grounds

on which the validity of the findings by the

medical tribunal were impugned today before the

Court of Appeal, but I do not think I will trouble

Your Honour with them.

HIS HONOUR:  Yes. Mr Tobin.

MR TOBIN:  Your Honour, I appeared before the Court of Appeal

for the fifth and sixth defendants. They can

briefly be called the complainants, the people

who brought the complaints forward against

Dr Edelsten. There is one thing Your Honour should
know.	The matter was heard yesterday and this

morning until about noon in the Court of Appeal

in Sydney. Section 32U(2) of the MEDICAL PRACTITIONERS

ACT, as Your Honour has pGinted out,confers a power on the supreme court in these terms:

The Supreme Court may stay any order made by the Tribunal, on such terms as the

Court sees fit, until such time as the

Court determines an appeal made under

this section.

The appeal includes not just the section 32U(l) (a)

appeal which Your Honour has dealt with this

afternoon in a special leave application as to

points of law, but the (l)(b) power, that is:

M1Tl7/2/MB	12	9/12/88
Edelsten(3)

the exercise of any power under section 32R

by the Tribunal -

being the penalty-making power which the tribunal

exercised against Dr Edelsten. It is a singular

omission by Dr Edelsten that at this time, that is,

10 days after the tribunal decision as far as my

instructions have it, has not sought an appeal on

penalty from the Court of Appeal in New South Wales

and at the same time sought a stay from that court

of the tribunal's order directing that his name

be removed from the register.

MR SWEENEY:  There will be such an appeal, Your Honour, but

we apprehend that an application for a stay based

upon it would be most unlikely to succeed.

MR TOBIN:  Now, Your Honour, the stay application is

available to my learned friend's client in the

Court of Appeal now and that will extend until, as I understand Mr Sweeney's estimate - - -

HIS HONOUR:  Well, the only point you really need to make,

Mr Tobin, is that the proceedings of today were

not proceedings which fell under 32U(l), is that

right?

MR TOBIN:	That is so, Your Honour.
HIS HONOUR:	Yes.
MR TOBIN:	This was a quite different power being invoked.

Now, without canvassing the detail of the evidence today the court came to the unanimous view that the legal point being made on behalf of Dr Edelsten

was really unarguable. We had a day and a half

of evidence and my learned friend reserved his

position to reopen the evidence at a final hearing.

but I think it fair to say that he told the Court He has moved somewhat away from that this afternoon	that he only sought interlocutory relief today
because of a mass of documentary material he had
not had time to canvass properly. So one may
expect that the interlocutory order will not dispose
of the matter, that there will be a final hearing involving a considerable body of documentary
evidence. That seemed to be the intention as
at noon today of Dr Edelsten's representatives.

MR SWEENEY:	It was, prior to judgment.
MR TOBIN:	Now, we do not know what the terms of the judgment

are and unless my learned friend were to tell the

Court that there will be no attempt to seek final
orders after a final hearing Your Honour should

assume that this is simply an interlocutory order

that Your Honour is dealing with, not only in form

M1Tl7/3/MB	13	9/12/88
Edelsten( 3)

but in substance. So, Your Honour, the position

has been reached where the doctor has not availed
himself of the powers invested in the Supreme Court

of New South Wales to invoke a stay. He has failed

to get a stay on a prohibition going not to penalty
but to the status of the tribunal and he now comes
to this Court seeking an order which - in the terms

in which he seeks it, it may not be available to

Your Honour to make and if he is really inviting

Your Honour to issue a writ of mandamus against

the New South Wales Supreme Court requiring - - -

HIS HONOUR: Well, I do not think that is so. Mr Sweeney

is asking me to exercise inherent jurisdiction

of this Court to preserve the subject-matter of

the litigation.

MR TOBIN:  Well, the short answer to it, Your Honour, is that -

and however more comfortable he may be here - he has,

and his client have not exercised their rights under

the statute to get that stay or seek that stay from

the New South Wales Supreme Court. It should be

noted that as the chronology that is attached to
the special leave application, at pages 184 and

following would show, the Court of Appeal in New

South Wales is especially equipped to deal with

the issues raised in this litigation. It has had

the matters contested before it at great length

and over a great period of time, as Your Honour will

see from 187 and 188 of the appeal books.

Now, this is not to say that there may not

be an infinite or apparently infinite quantity of

litigation. that could properly be brought with

respect to a particular proceeding. However, the

unanimous decision of the Court of Appeal today

refusing a stay is a matter in the light of this

chronology which we would ask Your Honour to weigh

very heavily because it heard not only the matters	that the special leave application canvassed, the
detailed scrutiny of the evidence before the
medical tribunal, it has also over a day and a half
scrutinized the circumstances in which the medical tribunal was, itself, constituted.

I should add in conclusion that in the course

of proceedings Dr Edelsten through his legal

counsel made submissions to the Court of Appeal

impugning the conduct of the medical board in
appointing the tribunal and suggesting impropriety
of a grave and even criminal nature. This head of
claim was requested by the court to be put in
writing and at the end of the evidence at noon

I am informed,by one of its orders,struck out that

head of claim. What I put to Your Honour is the

apprehension that the application before the Court

14

MlT17/4/MB	9/12/88
Edelsten(3)

today, both in the New South Wales Supreme Court

and before Your Honour, is - and I use the words

with reluctance - a quite reckless effort to avoid

the consequences of the tribunal's decision and

the manner in which the applications have been made

are reckless as to the good reputation of the

medical board and of the Department of He.alth in

New South Wales.

HIS HONOUR:  Mr Tobin, there is nothing obviously by way

of material before me to which that submission can

usefully be directed and I am taking, as you would

appreciate,the application that has been made from

the bar table by reason of temporal considerations

only.

MR TOBIN:	Yes.
HIS HONOUR:	I have no material before me save that which I

received from the bar table.

MR TOBIN:  Your Honour, I put it as a relevant matter on

the exercise of discretion as to whether to grant

this order or not	to	this litigant or applicant
on this issue.

HIS HONOUR:  Yes. Have you anything to say in reply,

Mr Sweeney?

MR SWEENEY:  Yes, a couple of things, Your Honour, if I may.

In the first place the core question really is only whether the argument that I outlined to

Your Honour is fairly arguable on an interlocutory

That is all I want to say,

basis. That was the critical question before the not tenably arguable.

if Your Honour pleases.

HIS HONOUR:  Yes, thank you, Mr Sweeney. This application

has been made this afternoon as a matter of
urgency.	An order was made by ~he Court of

Appeal of the Supreme Court of New South Wales at

some earlier time today by which that Court refused

an interlocutory order sought by the present

applicant restraining the removal of his name from

the register of medical practitioners and the

suspension of him from practising medicine. That

interlocutory orde½ as I am informe~ was sought

incidentally to an application for an order of

prohibition directed inter alia to the medical

tribunal to restrain the rem:wal of the applicant's name from

the register of medical practitioners and the

suspension of him from practising medicine.

The grounds on which that application was

made have been outlined to me by Mr Sweeney and
the nature of the argument which was adduced

shows that a question was addressed by the Court

of Appeal either on an interlocutory basis or,

M1T17/5/MB	15	9/12/88
Edelsten(3)

if Mr Sweeney's understanding is correct, perhaps

on a final basis, as to whether an appointment

made by the medical board, or by a delegate

of the medical board, of one member of the medical

tribunal, being an appointment that

was not made for the purposes for which the power
ought properly to be exercised, vitiates the

appointment of other members of the tribunal.

That question has been resolved against the

applicant by the New South Wales Court of Appeal

and it may be that either now or at some later

time when that decision is embodied in some final

order, the applicant may seek to agitate that

question by an application for special leave to

appeal to this Court.

In the meantime interlocutory orders

were sought from the New South Wales Court of Appeal.

Having been refused, the applicant virtually applies for a renewal of the interlocutory order which

thus far has governed the proceedings in this Court.

That order which expires at 6 pm this evening, is an

order that the order made by the respondc~ts to today's

special leave application - sitting as the

Medical Tribunal of New South Wales -be stayed. That

is, the order made by the tribunal striking

Dr Edelsten's name from the register of medical

practitioners and suspended him from practising

medicine was stayed.

The present application is made

to the inherent jurisdiction of this Court to
preserve the subject-matter of litigation pending

the making of an application for special leave to

appeal to this Court. That is a jurisdiction which, as

has been repeatedly pointed out, i$ an exceptional

jurisdiction. It is one which can only be exercised

be created that in the conduct of litigation the orders	emphasize that observation again lest the impression in extraordinary circumstances. It is as well to
of this Court are available to keep matters in statu quo until the litigation is finally resolved.
That is not the purpose of the inherent jurisdiction.
Something quite exceptional must be shown before
that jurisdiction is exercised.

In any event the problem in this case seems

to me to turn to no small degree upon the provisions

of the MEDICAL PRACTITIONERS ACT 19 38 (New South Wales)

and in particular on the provisions of section 32R

and 32U. 32U(l) confers upon the Supreme Court of

New South Wales an appellate jurisdiction in two

situations: one where a decision of the tribunal

is effected,as it is said, by some error on a

point of law; the second, against the exercise of

any power by the tribunal under section 32R. When

M1Tl7/6/MB	16	9/12/88
Edelsten(3)

that jurisdiction is invoked, but only when that

jurisdiction is invoked, the Supreme Court has a

further jurisdiction conferred by subsection (2)

to stay any order made by the tribunal on such

terms as the C.Ourt sees fit. The Supreme Court

is thus the specific repository of a statutory

power which may override the effect of the

provision to which I am about to refer, namely,

section 32R. By section 32R(l) the tribunal is

given power,when it finds the subject-matter of a
complaint made against a person to have been proved,

to direct that that person's name be removed from

the register - see subsection (l)(g)(ii).

The effect of an order made under that

provision i.s specified by subsection (6) of the

same section, which I read:

An order made by the Tribunal under this section shall take effect on the day on

which the order is made or on such later day

as is specified in the order.

The order in the instant case made by the tribunal

upon which that section, or that provision of the

Act operates, is an order that Dr Edelsten's name

be removed from the register of practitioners.

Could you refer me to the page, Mr Sweeney?

MR SWEENEY:	Page 105.
HIS HONOUR:	Thank you.  It is an order that the

respondent's name be removed from the register

and it - that is, the tribunal - fixes seven years

as being the time after which the respondent may

apply to be registered. By the penultimate paragraph

of its order the tribunal specifies under

section 32R(6) that its orders take effect on

by force of the statute, the order of the tribunal and from 6 December 1988. That is the date which,	is to take effect. If this Court has jurisdiction
of an inherent kind it is not, in my view, a
jurisdiction which ought to be exercised purportedly
to override the statutory effect which the Parliament of New South Wales has ordained that the order of the tribunal should have.

I might add that even if I were satisfied that

the jurisdiction of this Court attached, and that it

would be appropriate to consider the exercise of

the inherent jurisdiction, nothing that Mr Sweeney

has said would satisfy me that the prospects of obtaining

special leave to appeal fran the interlocutory orders are so

substantial or that the damage is so irreversible

that the inherent power should be exercised to stay

the order of the tribunal in accordance with its terms. Consequently the application is refused.

M1Tl7/7/MB	17	9/12/88
Edelsten( 3)

MR TOBIN:	I ask for costs, Your Honour.
MR SWEENEY:	Nothing to say.
HIS HONOUR:	Yes, very well, with costs.  The Court will

now adjourn.

AT 5.46 PM THE MATTER WAS ADJOURNED SINE DIE

M1Tl7/8/MB	18	9/12/88
Edelsten(3)