Edelsten v Richmond

[1990] HCATrans 22

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll8 of 1989

B e t w e e n -

GEOFFREY WALTER EDELSTEN

Applicant

and

MR D.T. RICHMOND

First Respondent

and

MR G. MESSITER

Second Respondent

and

NEW SOUTH WALES MEDICAL BOARD

Third Respondent

and

MEDICAL TRIBUNAL OF NEW SOUTH WALES

Fourth Respondent

Application for special leave to

appeal

Edelsten(4)

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 1990, AT 12.50 PM

Copyright in the High Court of Australia

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MR M.J. NEIL, QC:  May it please the Court, I appear with my

learned friend, MR T.A. ALEXIS, for the applicant.

(instructed by Shenker & Associates)

MR B.M. JAMES, QC:  May it please the Court, I appear with my

learned friend, MS P. BERGIN, for the third

respondent, the Medical Board. (instructed by

the Crown Solicitor for the State of New South Wales)

MR T.K. TOBIN, QC:  I appear with my learned friend,

MR M.G. SEXTON, for the first and second respondents, Your Honours. (instructed by the Crown Solicitor for

the State of New South Wales.

MASON CJ:  The Registrar advices that the State Crown Solicitor

who acts on behalf of the fourth respondent will

abide by any order of the Court save as to costs.

Yes, Mr Neil? ·

MR NEIL:	Your Honours, may I hand up a booklet of list of
authorities and extracts from the legislation and certain cases.
MASON CJ:	It is only an application for special leave to appeal.

MR NEIL: Yes, I can assure Your Honour it is a short point

although vital. I do not need to take Your Honours

to very much of this. Your Honours, the vital

question is this: if an Act purports to establish

a statutory corporation using provisions that are

fairly normal nowadays and if it provides that there

shall be a specified minimum number of people to constitute the corporation, can that corporation either come into existence or commence to carry.out

any functions if the specified number and character

of persons are not first appointed? Now, in this

case the Act under section 5 of the MEDICAL

PRACTITIONERSACT which constituted a corporation

as of 1 October 1987 stated in section 5(1):

There is constituted by this Act a

corporation under the corporate name of

the "New South Wales Medical Board".

(2) The Board shall have and may exercise

the functions conferred or imposed on it

by or under this or any other Act.

(3) The Board shall consist of 18 members
who shall be appointed by the Governor.

(4) Of the members -

(a) 1 shall be -

(a), (b), (c) and so on. Paragraph (f) was: 8 shall be registered medical practitioners

nominated respectively by -

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various colleges including:

(vii) The Royal College of Pathologists.

Now, what happened was that the Royal College of

Pathologists nominated a Dr Gunz. The Minister

called the first meeting. Dr Gunz advised he

was over the statutory age. The Act provides you may not be appoined if you have reached a certain age or you are not eligible ab initio. The first meeting of the Board was called by the

Minister with the knowledge that Dr Gunz said he was not coming to the meeting because he was

over age and the meeting proceeded, the first

meeting, with 17 members.

The Court of Appeal held, basically, that the

intention of the Act was to·constitute the

corporation under section 5(1) and that constituted

it; that you could go ahead and commence actions

and functions without the whole 18 having been

appointed; that if you had a quorum - and the

quorum provision is 10 - that was in some way

amelioratory of the problem, and that the

INTERPRETATION ACT of New South Wales, section 52,

which deals with vacancies and disqualifications

such as bankruptcy and the like, and so on, solve

the problem. Our submission to the court was and

is here that plainly one must start with the

full number. If, later, you have a vacancy then

the INTERPRETATION ACT can allow, for obvious
reasons of convenience, things to go ahead whilst

they are, no doubt, waiting to appoint somebody

else ..

The quorum point is resolved this way: the

Court of Appeal failed to recognize what we

submit is hallowed law - and there are passages in

some of the authorities in the book which support this - that for any meeting of any corporation, to have a valid quorum you must first notify all persons	entitled to attend. If they do not wish to attend,	so be it, but unless you notify each who can attend
you cannot constitute a quorum of the total number
entitled to attend. In this case they notified
a person who was ineligible statutorily. He said he
wa.s not going to come. He just declined~ In our submission, the Minister should have called upon
the College of Pathologists to nominate another
person and then commence the activities. That was
not done. They just said, "Well, it doesn't matter", the significance escaped them.

Mr Justice Priestley, in his judgment, in answer

to an argument, "What happens if, for example, you

only started with 12 out of 18?" said, in the

application book at page - well, His Honour dealt with

quorum on pagel8 and His Honour said at page 19

of the appliction book, line 20, commencing at line 10:

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If, after the coming into operation of

s 5(1), a situation was deliberately

produced whereby say ten members only

were appointed, with the intention that

some interest groups should not be

represented at the making of some decision

of the Board, it may be that such a

decision could be attacked on grounds

involving mala £ides. Such an example

is of course by way of hypothesis only, to test the submission of the claimant;

it is not to be expected that such a

situation would arise. However, if it

did arise, then it seems to me that the

legal remedy would be by way of

attacking such use (or abuse) of the

Board's power as wrongful, rather than

by denying the existence of the Board

itself as a legal entity.

The problem there, Your Honours, is that the Board members, if you only had 10 or 12 appointed, would

not be acting mala £ides. They had been

appointed, they would be doing their job. You would

have to challenge the validity of the Board. You

would have to challenge the ministerial appointments.

The importance in public law is this, as appears in

a passage in G.J. COLES V RETAIL TRADE INDUSTRIAL

TRIBUNAL, (1987) 7 NSWLR 503, about the centre

of the book. I do apologize, the pages are not

pagenated, but at the end of page 513 and the top

of page 514 Their Honours, with approval, refer to

a judgment of Chief Justice Burbury in Tasmania

in ST LEONARDS MUNICIPLITY V WILLIAMS.

It was pointed out in that case that each of the statutory officers was intended to make

his own contribution to the deliberation

of the statutory body.

That was a case where the Act did not have a quorum

so you had to have the lot.	Burbury CJ expressed the obligation in
words that are apt to the present case:
" ... The legislature has •.. given careful
attention to setting up a commission
composed of persons having appropriate
professional qualifications and practical
experience to carry out the important functions entrusted to the Commission under
the Act. I should have thought that it was
the plain purpose of Parliament in setting
up a commission in which professional
qualifications and practical experience are
so nicely balanced that any decision of the

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Commission should only be reached at

a sitting at which all those nominated

by Parliament for their particular

qualifications or experience were present

and able to make their own contribution.

Otherwise the purpose of the legislature in endeavouring to ensure an informed

decision might well be frustrated ....

... All members must be present at a meeting to give the benefit of their

particular qualifications and experience

and in that sense all members must

participate in a decision or report."

We would submit all members should be notified of

the first meeting, at least, to have an opportunity

to be present. In this case·- - -

GAUDRON J: Well, you cannot say that because they were, in

fact, notified. It is not in issue.

MR NEIL: Well, eligible members.

GAUDRON J: What you have got to say is all 18 members

must be appointed. You cannot deal with it simply

in terms of "all must be notified", you have got to

go to the position that all must be appointed.

MR NEIL: Quite so, Your Honour. For the first meeting, we

submit, all 18 must be appointed and then all 18

must have a chance to come and the reason is - - -

DEANE J: Well, you have got to go further really, have you

not? You have got to say there must be 18?

MR NEIL:  Yes, Your Honour.

DEANE J: All the time?

MR NEIL:  No, Your Honour, with respect. That is the important

point of legal construction involved because the

argument of the respondents is that section 52 of

the INTERPRETATION ACT saves them. We say, with

respect, that it was never intended that the

INTERPRETATION ACT should operate that way, Your Honour.

DEANE J:	Can I put it differently? Were it not for
section 52, you would have to say, on the construction
of this Act there have to be 18 all the time.
MR NEIL:	Exactly, Your Honour, and we say that must be the case. It is the only way to read the Act, and for
good reason. You could not have a government promise
something and promise to put people on the board and
then after the election say, "Well, we're leaving off the conservationists or the greenies" or someone.
Later on, if there is a vacancy, that may be covered
by section 52.

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MASON CJ:  But how can you say, putting aside section 52,

that that is the intention of the legislature?

I mean, take circumstances where people fortuitously

cease to be members, on your argument, but for

section 52, the legislative intention was that the

Board could not function until that person was

replaced.

MR NEIL:	And, Your Honour, that is the purpose of section 52.
That is why you need a section 52. Without it,
that would be the case.

MASON CJ: Well, I find it very hard to accept, that without

section 52 that would have been the legislative

intention.

MR NEIL:	Your Honour, in our respectful submission, that
must be the case; that is the reason for the standard form of interpretation Acts, it is their
purpose, it is why they were introduced, it is
what they are all about. And after the first
meeting we do not cavil because there is provision
in the INTERPRETATION ACT for vacancies. There is
also a provision for defects in the appointment.
That is an issue in the case.  We submit it is
never a defect. There is never an appointment.
It is well-known law on what is a defect and what
is substantial. It is not a case of disqualification
because the person was not appointed and then
disqualified for  having committed a crime
or something, or gone bankrupt.  We certainly say
it is not a minor irregularity and therefore - and it is not a case of a person not entitled ·to be present
being present. So, there is nothing in section 52, in our respactful submission, that covers the position.

There is, of course, a quorum provision,

Your Honours; it is 10, but, again, I make the

submission: we are dealing now with the

constitution, the first meeting and the first

activity of the Board and we submit that it must

be plain that the legislature intended, at the very least, to start with the people set out in the Act:

The Board shall consist of 18 -

and -

Of the members -

otherwise, who is to say who you could leave out at

the start and how many you could leave off? Could

you start with 10, 12, 15, 18? The Minister was

charged under the saving and transitional provisions

with"calling the first meeting of the new Board in

such manner as the Minister thinks fit." We submit he therefore had to call 18 or, at least, give them

the chance to be there. He had to call the first 18

then he could operate with quorum.

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DEANE J:  Was the 18 subsequently appointed?

MR NEIL: In December, Your Honour, some time later -

9 December.

DEANE J: What is the practical significance of all this?

MR NEIL:	The practical significance, Your Honour, is this,
that as far as the applicant is concerned, at
the first meeting delegation was given to the president of the Board to nominate the people who
should sit on a disciplinary tribunal to hear
a case against the applicant.

DEANE J: Yes, I know the facts but what is the practical

significance - - -

MR NEIL:	The practical significance that we contend for - - -
DEANE J:	- - - that the same people should just start again
and do it all again?
MR NEIL:	Well, either them or other people properly appointed. There may be an argument whether the same people
should do it again, but some appropriate person
should start again and hopefully - well,
I do not think I need to say any more.

DEANE J: Ultimately, the point comes to a construction of

this Act.

MR NEIL:	Yes, but this, Your Honour, it is a broad Act.
It is not one different from any other Act.
It is a fairly standard form of Act.
DEANE J: Well, yes, it is, it has	a board of 18,

constituted in a particular way with a particular

quorum provision and a particular provision as to

delegation.

MR NEIL: That is so, Your Honour.

DEANE J: So, it comes to a question of construction of this

Act as to a position which is no longer existing and which cannot exist again so that something

that has been done can be redone.

MR NEIL:  Your Honour, this Act still exists.

DEANE J: Yes, but this position cannot arise again, on your

argument, because it only applies to the first

constitution of the Board.

MR NEIL: Yes, but the problem, Your Honour, is that this

problem could arise with any statutory corporation

set up in the future. What we now have is the

Court of Appeal has said that it is not vital to

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set up statutory corporations with the full number,

therefore, there is the potential for either error or

for some other reason - - -

DEANE J: Well, that is where I have missed something, Mr Neil.

Where did they say that? I follow that they have

said, in the context of the provisions of this Act,

it was not essential to set up this statutory

tribunal but where is the general proposition?

MR NEIL:	Your Honour, the general proposition flows from
this: Their Honours have not said it, but we submit
the general proposition must flow because this is a
fairly standard form of section and therefore their judgment would enable, in future, the policy of having all the nominated persons in the Act
available to consider matter~ of great social importance
defeated. And for someone to write and advise him -
responsibly saying, "Well, you have left one out.",
~the Court of Appeal has said it is all right, you
don't have to do anything about it instead of
starting properly, that being the public, social and legal point of very great importance. It is open for that to happen with any standard form in
the future, and the precision in the carriage of public affairs that is required - who is to say
who is to be left off if a mistake is made? The
ultimate point being that in this particular case the Pathologists Association was deprived of
participation. It could have been anyone else,
it could have been the general practitioners or
the psychiatrists or two or three of them. It
could have been the person from the University of
Sydney. They are entitled to complain. It is simply not good enough, with respect, and that is the point,
Your Honours. If it please the Court.

MASON CJ:  Thank you. The Court will adjourn now and we will

resume at 1.45 pm.

AT 1.07 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1. 45 PM:

MASON CJ: The Court does not need to trouble counsel for

the respondents.

A majority of the Court considers that the actual

decision of the Court of Appeal on the construction
of the particular statute is not attended with
sufficient doubt to justify the grant of special leave

to appeal and the whole Court considers that in all

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the circumstances the case is not an appropriate

case for such a grant. In the circumstances the

application is refused.

MR NEIL: If it please the Court.

MR TOBIN:  Your Honour, I would ask for costs for the first

and second respondents who are the complainants

who had carriage of what is, in effect, a

prosecution or a complaint before the Medical

Tribunal.

MASON CJ: You cannot resist that, can you, Mr Neil?

MR NEIL:	No, Your Honour.
MASON CJ:	The application will be dismissed with costs as

against the first and second respondents.

MR JAMES:  Your Honours, there is an application for costs

of the third respondent, the Medical Board. The

question raised in the appeal directly went to the

validity of the Acts of the Medical Board. The

Medical Board was a party below and, in our submission, costs for the Medical Board should

properly be ordered.

MASON CJ: What do you say about that, Mr Neil?

MR NEIL:	Your Honour, in reality the Board and the complainants
are part of the governmental system. I think the
complainants are employees of the Department.
There does not seem to have been any significant
cleavage in their interests and there was not, we
would submit, anything more required -than·the submitting appearance by one or the other below - one or the other.
MASON CJ:	The Court is of opinion that there should be one

set of costs as between the first and second

respondents on the one hand and the third respondent

on the other hand, and I think we will order as we

did in the previous case, that in the event that
the parties cannot agree as between them, the proportion
of costs to be received by those three respondents,

the respondent should be paid by the applicant as to

half ta the first and second respondents and half to

the third respondent.

MR NEIL:  May it please the Court.

AT 1.49 PM THE MATTER WAS ADJOURNED SINE DIE

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