Fernando v Medical Complaints Tribunal

[2003] TASSC 133

[2003] TASSC 133

CITATION:            Fernando v Medical Complaints Tribunal [2003] TASSC 133

PARTIES:  FERNANDO, Neville
  v
  MEDICAL COMPLAINTS TRIBUNAL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 43/2003
DELIVERED ON:  3 December 2003
DELIVERED AT:  Hobart
HEARING DATES:  2, 3 December 2003
JUDGMENT OF:  Blow J

CATCHWORDS:

Administrative Law – Judicial review legislation – Commonwealth, Queensland, Australian Capital Territory and Tasmania – Powers and discretion of Court – Other matters – Discretion to refuse review – Parallel statutory appeal.

Judicial Review Act 2000 (Tas), s12.
Kelly v Coats (1981) 35 ALR 93; Convery v Ziino (1985) 70 ALR 383, referred to.
Stubberfield v Webster [1996] 2 Qd R 211, distinguished.
Aust Dig Administrative Law [30]

REPRESENTATION:

Counsel:
           Appellant:  T M Forrest QC, P Gray
           Respondent:  P L Jackson
Solicitors:
           Appellant:  Simmons Wolfhagen
           Respondent:  Jackson & Tremayne

Judgment Number:  [2003] TASSC 133
Number of Paragraphs:  11

Serial No 133/2003
File No LCA 43/2003

NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

EDITED VERSION OF ORAL RULING  BLOW J

3 December 2003

1. The appellant is aggrieved by a decision made by the Medical Complaints Tribunal ("the Tribunal") which (inter alia) ordered that his name be removed from the Register of Medical Practitioners.  He has challenged the Tribunal's decision in two proceedings: this appeal pursuant to the Medical Practitioners Registration Act 1996, s61, and an application pursuant to the Judicial Review Act 2000, s17.

1. The Tribunal has applied, pursuant to the Judicial Review Act, s12, for the dismissal of the application under that Act. The interlocutory application has been filed in the appeal proceedings, not in the Judicial Review Act proceedings, but no technical point has been taken as to that.  Mr Jackson, counsel for the Tribunal, has submitted that the Judicial Review Act proceedings should now be dismissed.  Mr Forrest, senior counsel for the appellant/applicant, has submitted that the Judicial Review Act proceedings, rather than being dismissed, should be stayed. 

1. The Judicial Review Act, s10, provides:

"10 ¾ The rights conferred by this Act on a person to make an application to the Court relating to a reviewable matter are in addition to any other rights that the person has to seek a review of the matter (whether by the Court or another court or a tribunal, authority or person)."

1. The Judicial Review Act, s12, provides:

"12 ¾ Despite section 10, but without limiting section 38, the Court may dismiss an application under section 17, 18 or 19 that was made to the Court relating to a reviewable matter because ¾  

(a)the applicant has sought a review of the matter by the Court or another court, otherwise than under this Act; or

(b)adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the Court or another court or a tribunal, an authority or a person."

1. As to s12(a), Mr Jackson relies on the appellant having sought a review of the Tribunal's decision by means of the appeal under the Medical Practitioners Registration Act. As to s12(b), I take him to be contending that adequate provision is made by the Medical Practitioners Registration Act for the appellant/applicant to seek the review of the Tribunal's decision.

1. The Tribunal found proven certain allegations of sexual misconduct by the appellant in relation to a patient whom he had been treating using hypnotherapy.  The appellant contends that, before the conclusion of the Tribunal's hearing, the patient's sister telephoned the Secretary to the Tribunal, advised her of matters relevant to the patient's credibility, and asked for details of the appellant's lawyers, which the Secretary declined to supply.  He contends that, following the patient's sister's approach to the Tribunal or its Secretary, the Tribunal denied him natural justice, failed to take into account a relevant consideration, and exercised its power unreasonably, all in contravention of the Judicial Review Act, s20. A comparison of the originating application under the Judicial Review Act and the notice of appeal under the Medical Practitioners Registration Act, suggests that every ground of review relied upon under the former Act is capable of being relied upon in the proceedings under the latter Act. 

1. Mr Jackson referred to the remarks of Thomas J in Stubberfield v Webster [1996] 2 Qd R 211 at 217, where his Honour made the following comments:

"As a general rule judicial review should not be seen as a substitute for the appellate process in the civil courts. … Applications like the present one are unlikely to produce a satisfactory result for the disgruntled civil litigant but are still likely to take up considerable time of the courts.  It is therefore important that it be clearly understood that this remedy is not to be regarded as a substitute for the appellate system within the ordinary judicial process."

However that case involved an application for judicial review in relation to a decision of a magistrate in civil proceedings.  An appeal could have been instituted and was obviously the more appropriate remedy. 

1. There is a helpful line of authority in the Federal Court concerning the equivalent provision in the Administrative Decisions (Judicial Review) Act 1977 (Cth), namely s10(2)(b). In Kelly v Coats (1981) 35 ALR 93, the applicant had appealed from a decision of a Repatriation Board to the Repatriation Commission, and had applied for the review of the same decision under the Administrative Decisions (Judicial Review) Act.  Toohey J refused to dismiss that application.  At 94, his Honour said:

"One starts with the proposition that an applicant may rely upon any or all of the remedies available, review by this Court and review or appeal elsewhere. The discretion in s10(2)(b) is one to refuse the application. No doubt in the exercise of its inherent powers the Court may adjourn an application pending the determination of an appeal."

1. In Convery v Ziino (1985) 70 ALR 383 at 387 – 388, Neaves J said the following:

"The onus is clearly on those seeking to persuade the Court that it should not exercise the jurisdiction conferred on it by the legislature: Kelly v Coats (1981) 35 ALR 93 at p 94; Beck v Thornett (Federal Court (Everett J.) - 31 August 1984 - unreported).  In a case such as this, where what the respondent seeks is, in effect, an order summarily terminating the proceedings at a stage when the issues have not been adequately defined, the onus must be a heavy one.  The Court should only make such an order in a very clear case."

1. I note, of course, that in this case the proceedings are no longer at an early stage, and the issues seem adequately defined.  However I rely strongly on the comment that the Court should only make such an order in a very clear case.  This appeal is not a straightforward one and it is difficult to foresee all the possible twists and turns that it could take.  The hearing of the appeal began with preliminary argument, lasting more than a day, as to whether the nature of an appeal pursuant to the Medical Practitioners Registration Act, s61, is such that the Court can receive evidence that was not before the Tribunal. Mr Jackson submitted that it could not. I have ruled that it can. The point was not free from doubt. My ruling could be reversed by the Full Court on appeal if an appeal eventuates. For that reason alone I think it is too early to dismiss the Judicial Review Act proceedings on the basis that that Act does not enable the present appellant to do anything that he cannot do under the Medical Practitioners Registration Act.  There is no suggestion that the appellant, if his appeal is dismissed, might seek to abuse the process of the Court by taking some inappropriate step in the Judicial Review Act proceedings.  There is no suggestion that the respondents to the Judicial Review Act proceedings might suffer any prejudice if those proceedings are stayed, rather than dismissed.

1. I am not persuaded that it would be just to dismiss those proceedings.  I therefore order that application M133/2003 be stayed until further order.