Gorman v Health Care Complaints Commission

[2000] NSWSC 1228

CITATION:	Gorman v Health Care Complaints Commission [2000] NSWSC 1228
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 12966/00
HEARING DATE(S):	27/11/00;28/11/00
JUDGMENT DATE:	20 December 2000
PARTIES :	Richard Francis Gorman v Health Care Complaints Commission and Medical Board of New South Wales
JUDGMENT OF:	O'Keefe J

LOWER COURT JURISDICTION :	Professional Standards Committee of the Medical Board
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

COUNSEL :	Plaintiff in person Ms Lorgan - defendant
SOLICITORS:	Plaintiff in person I V Knight Crown Solicitor - for defendant
CATCHWORDS:	Medical practitioner - Complaint - Disciplinary proceedings - Powers of Medical Board - Reference to Committee by Medical Board - Later reference to Tribunal by Medical Board - Procedure before Committee - Restriction on right to appear - Barrister or solicitor - meaning
LEGISLATION CITED:	Medical Practice Act 1992 Interpretation Act 1987 Charter of Justice 1823
CASES CITED:	Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637 Gorman v Health Care Complaints Commission and Ors (Supreme Court, 2 September 1998, unreported) National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312 The King v War Pensions Entitlement Appeal Tribunal: Ex parte Bott (1933) 50 CLR 228 at 248 The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 Salemi v MacKellar (No 2) (1977) 137 CLR 396 Russell v Duke of Norfolk (1949) 1 All ER 109 at 118 University of Ceylon v Fernando (1960) 1 WLR 223 Mobil Oil Australia Pty Limited v Federal Commissioner of Taxation (1963) 13 CLR 475 at 504 In Re Davis (1947) 75 CLR 409 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Lawrie v Lees (1881) 7 App Cas 19 Parkes Rural Distributions Pty Limited v Glasson (1986) 7 NSWLR 332 Ziems v The Prothonotory of the Supreme Court of NSW (1957) 97 CLR 279 Re Wishart (Supreme Court, Full Court, unreported) Mallock v Aberdeen Corporation (1971) 1 All ER 1278 Forbes v NSW Trotting Club (1979) 143 CLR 242
DECISION:	Summons dismissed; Plaintiff to pay the defendant's costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’KEEFE J.

Date: 20 December 2000

No. 12966/00 RICHARD FRANCIS GORMAN v HEALTH CARE COMPLAINTS COMMISSION AND MEDICAL BOARD OF NEW SOUTH WALES

JUDGMENT

HIS HONOUR:

BACKGROUND

1    Dr Richard Gorman (the plaintiff) is a legally qualified medical practitioner who is registered to practise and is in fact practising in New South Wales. He is a specialist ophthalmologist. In conjunction with a senior medical colleague, Dr Milne, he has developed a theory in relation to the treatment of glaucoma, a disease of the eyes in which the pressure in the intra-ocular fluid builds up, causes damage and is capable of rendering a person blind. The theory is that spinal manipulation is an appropriate form of treatment in certain cases. He claims that he and his senior colleague have undertaken a study of some 100 cases in which such treatment has been beneficial.

2    The plaintiff’s theory is challenged by conventional medical theory and by a very high percentage of, probably most, medical practitioners who are qualified in the relevant field. However, the plaintiff sees himself as a latter day medical equivalent of Gallileo; his paradigm challenging the current orthodoxy. The medical community on the other hand sees the plaintiff’s method of treatment not merely as unhelpful in relation to glaucoma but positively damaging in that well known and recognised, and at least substantially effective, methods of treatment which are available are not resorted to by those whom the plaintiff treats. As a consequence it is said that irreparable damage is or can be done to the sight of those who are not given the conventional treatment.

3    It is common ground that the plaintiff has had a number of disagreements with his professional colleagues and brushes with the Medical Board (the second defendant) constituted under the Medical Practice Act 1992 (The Act). However, there is only one complaint that brings this matter before the court.

4    That complaint, made by the Commissioner of the Health Care Complaints Commission on 6 December 1996 concerns two patients both of whom suffered from glaucoma and sought advice and treatment from the plaintiff. As a result of his treatment of them the Health Care Complaints Commission (HCCC) complains that the plaintiff:

“Has been guilty of unsatisfactory unprofessional conduct within the meaning of Section 46 of the Act in that he demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of medicine.”

5    The particulars of the complaint are that he advised one patient who attended him in May 1993 to undergo spinal manipulation from which method of treatment it is said, “there is no recognised benefit” and that he failed to maintain the intra-ocular pressure of the patient at an acceptable level to prevent further glaucomatous damage.

6    The particulars relating to the other patient are that the plaintiff again used spinal manipulation to treat elevated intra-ocular pressure and that this was inappropriate. Furthermore, it is said in the particulars that the plaintiff “used an unrecognised diagnostic tool, the ‘Milne score’”, made an “unrecognised diagnosis” of “minimal brain dysfunction”,” inappropriately used the diagnostic tool of static perimetry” and advised spinal manipulation under general anaesthetic. It is also alleged that the plaintiff failed to provide adequate advice as to the scientific validity of the spinal manipulation procedure and available therapeutic alternatives.

7    Sadly, the patient last referred to died whilst undergoing the spinal manipulation under general anaesthetic but, as was conceded by counsel for the second defendant, no suggestion is made, nor is there any ground for making a suggestion, that even if substantiated, the complaint is such as to provide grounds for the suspension or deregistration of the plaintiff.

8    The scientific correctness or otherwise of the plaintiff’s theory in relation to the treatment of glaucoma is not a matter which is before the court. It is a scientific question to be answered by those who are properly qualified and skilled in the relevant sphere of science. The adequacy or appropriateness of the form of treatment by the plaintiff is not before the court either; nor is the use of the diagnostic tool of the Milne Score nor any issue as to whether a particular diagnosis or label for a particular medical disorder should have been made or applied. Nothing said in or flowing from this judgment should be construed as commenting in any way upon the merits or demerits of the plaintiff’s theory or his methods of diagnosis or treatment which are the consequence of such theory.

9    The complaint against the plaintiff by the HCCC was referred to a Professional Standards Committee of the Medical Board constituted under Part 12 (ss 167-181) of the Act. As required by s 168, the Medical Board must constitute a committee when a complaint is referred to a committee. Such committee consists of three appointed persons, two of whom are to be registered medical practitioners having such qualifications as may be prescribed and the other a lay-person, that is a person who is not a registered medical practitioner and is drawn from a panel of lay persons nominated by the Minister (s 169).

10    The complaint was referred to a Professional Standards Committee (the Committee) in December 1996. The merits of the complaint have not been considered by the Committee but there have been three preliminary hearings, at or as a result of which directions have been given as to the further progress of the matter before it. These were on 10 February, 1997, 11 March 1997 and 12 October, 2000.

11    At the two earlier preliminary hearings the HCCC, acting as the nominal complainant in accordance with the Act, was represented by a Ms Helen Jane Turnbull. She, according to the uncontradicted evidence, had at the relevant times already been admitted as a solicitor in the United Kingdom and in New Zealand. She has since been admitted as a solicitor in New South Wales, but at the time of her appearance at the preliminary hearings before the Committee she had not been so admitted.

12    The plaintiff objected to the appearance of Ms Turnbull before the Committee claiming that as a lay-man he was disadvantaged, and disadvantaged significantly, as a result of her legal skills and experience. He claimed both before the Committee and before the court that her appearance was in contravention of s 177 of the Act and that as a consequence the hearings before the Committee involved a denial of natural justice to him.

13    As his objection was not upheld by the Committee the plaintiff approached the Supreme Court in 1998. The matter was heard by Dunford J who dismissed the plaintiff’s application with costs. The plaintiff then sought leave to appeal to the Court of Appeal. Leave was refused. He then sought special leave to appeal to the High Court. This too was refused. He then went back to the Committee and at the third directions hearing a Ms Bowman appeared for the HCCC. The plaintiff objected on the basis that she too was a solicitor and prevented from appearing by s.177 of the Act. This objection was overruled so the plaintiff instituted proceedings in this Court seeking relief. That relief as originally claimed consisted of three declarations as follows:

“1. The use of a qualified barrister or solicitor, whether that barrister or solicitor be professionally registered as such in New South Wales or not so registered, to represent parties before the Professional Standards Committee breaches the Medical Practice act of 1992;
2. For the purposes of the Medical Practice Act, a person has the status of a solicitor or barrister as regards appearing in Professional Standards Committee, if that person is qualified in Law and acts in a way which uses those qualifications to some advantage in an situation of a legal nature; and
3. In the advent of Item 1. above being declared, the use of Ms Helen Jane Turnbull, qualified solicitor, in the action against the plaintiff in the Directions Meetings of the Professional Standards Committee, constituted an unfairness, so much so that to continue the matter in its present form, in the Professional Standards Committee, would deny the plaintiff natural justice.”

14    The plaintiff’s summons was filed on 9 November 2000. Although the precise date of service is not known it is clear from the evidence that it occurred prior to 14 November 2000, on which date, according to a letter from the Medical Board of 22 November 2000, “the … Committee … determined … that the complaint dated December 1996 in relation to your practice of medicine should be referred to a Medical Tribunal for hearing.” According to a statement from the bar table by counsel for the second defendant the formal notification to the Committee of the Board’s decision had not been effected as at the date of the hearing before this court.

15    However, when advised of the decision of the second defendant, the plaintiff said:

“Oh, that’s good news but why didn’t they do that before, I could have saved myself $30,000 in costs.”

16    In the context of the decision of the second defendant to refer the complaint to the Tribunal, it is appropriate to stress the concession that was made on behalf of the defendants, namely that even if substantiated, the complaint was not such as to provided grounds for suspension or deregistration of the plaintiff as contemplated by s 52 of the Act.

THE RELIEF SOUGHT

17    During the course of the hearing the plaintiff sought an amendment to the relief claimed in the summons. The amendment added claims additional to those initially made, with the result that the totality of relief now claimed is as follows:

“1. For the purposes of the application of the Medical Practice Act 1992 No 94, decisions of the Medical Board (a) must have the object to protect the health and safety of the public and (b) its functions must be exercised in a manner that is consistent with this object cited in (a) and with its role as a part of the regulatory court system of New South Wales.
2. and considering (1), the decision of transfer the matter dealing with the Plaintiff in the Professional Standards Committee to the Medical Tribunal, as foreshadowed in the letter dated 24th November 2000 and signed by Anne M. Scahill, Deputy Registrar New South Wales Medical Board, contravenes the Medical Practice Act of 1992 No 94;
3. The use of a qualified barrister or solicitor, whether that barrister or solicitor be professionally registered as such in New south Wales or not so registered, to represent parties before the Professional Standards Committee breaches Section 177 (1) of the Medical Practice Act of 1992 No 94;
4. For the purposes of the Medical Practice Act, a person has the status of a solicitor or barrister as regards appearing in Professional Standards Committee, if that person is qualified in Law and acts in a way which uses those qualifications to some advantage in an situation of a legal nature; and
5. In the advent of Item 2. Above being declared, the use of Ms Helen Jane Turnbull, qualified solicitor, in the action against the plaintiff in the Directions Meetings of the Professional Standards committee, constituted an unfairness, so much so that to continue the matter in its present form, in the Professional Standards Committee, would deny the plaintiff natural justice.”

18    The claim in prayer 2 of the Amended summons, that the reference of the complaint by the Board to the Tribunal was in breach of the Act, is based on s 50 of the Act. The plaintiff’s argument is that, subject to the duty imposed by s 52 of the Act (which by concession is irrelevant in the present case), the Board has no power to refer a complaint to the Tribunal when a decision has already been made to refer the particular complaint to a committee and such decision had been given effect to.

STATUTORY PROVISIONS

19    The object of the Act is stated to be to protect the health and safety of the public by providing mechanisms designed to ensure that medical practitioners are fit to practise medicine and medical students are fit to undertake medical studies and clinical placements (s.2A(1)). The Act also requires that :

“The Board must exercise its functions under this Act in a manner that is consistent with this object” (s.2A(2))

Furthermore, in addition to the specific functions conferred on the Board by the Act, it has the general function “to promote and maintain high standards of medical practice in New South Wales” (s.132(2)(a))

20    The making of complaints is dealt with in Part 4 of Div 2 (ss.39 - 47). Any person may make a complaint (s.41) provided that it is in writing, contains particulars of the allegations on which it is founded (s.43) and is based on specified grounds, one of which is unsatisfactory professional conduct(s.39).

21    Part 4 Div 3 (ss.48 - 59) governs the manner in which complaints are to be dealt with.

22    Section 50 prescribes the courses of action available to the Board in respect of a complaint that has been made. It provides:

“(1) The following courses of action are available to the Board in respect of a complaint made to the Board, referred to the Board by the Commission or that the Board has decided to make:
(a) the Board may refer the complaint to the Commission for investigation, a Committee or the Tribunal, as the Board thinks fit,
(b) the Board may:
(i) refer the matter to an Impaired Registrants Panel, or
(ii) refer the professional performance of the
practitioner concerned for assessment under
Part 5A,
(c) the Board may direct the practitioner concerned to attend counselling,
(d) the Board may refer the complaint for conciliation in accordance with section 13(2) of the Health Care Complaints Act 1993,
(e) the Board may determine that no further action
should be taken in respect of the complaint.
(2) Before or at the same time as it refers a complaint to a Committee or the Tribunal, the Board must refer the complaint to the Commission for investigation.
(3) The Commission must, on receipt of a complaint referred by the Board for investigation, investigate the complaint or cause it to be investigated.
(4) If the Board makes a referral under subsection (1)(b), the matter ceases to be a complaint for the purposes of this Act and the Health Care Complaints Act 1993.
(5) Subsection (4) ceases to apply in respect of any matter that the Board subsequently deals with as a complaint.”

23    Section 52(1) imposes a duty on both the Board and the HCCC to refer a complaint to the Tribunal if at any time either forms the opinion that it may, if substantiated, provide grounds for the suspension or deregistration of a medical practitioner. Should the Board decide not to refer the complaint to the Tribunal, the Board must instead refer the complaint to a committee (s.52(3)).

24    Division 4 of Part 4 (ss.60 - 65) confers upon a Committee and the Tribunal certain powers. These include a power to:

“(1) … do any one or more of the following:
(a) caution or reprimand the person,
(b) order that the person seek and undergo medical or psychiatric treatment or counselling,
(c) direct that such conditions, relating to the person’s practising medicine, as it considers appropriate be imposed on the person’s registration,
(d) order that the person complete such educational courses as are specified by the Committee or Tribunal,
(e) order that the person report on his or her medical practice at the times, in the manner and to the persons specified by the Committee or Tribunal,
(f) order that the person seek and take advice, in relation to the management of his or her medical practice, from such persons as are specified by the Committee or Tribunal.” (s.61)

25    The powers of a Committee are not as extensive as those of the Tribunal. The Tribunal may suspend or direct deregistration; the committee may not. The rights of appeal are different. Appeals against decisions of a Committee lie to the Tribunal in the first instance and are by way of re-hearing with the right to call fresh evidence or evidence in addition to or in substitution for the evidence given before the Committee (s.87(4)). In addition, an appeal on a question of law lies from a Committee to the Tribunal or a Deputy Chairperson of the Tribunal nominated by the Chairperson (s.88(1)) and pending the determination of any appeal the Committee must not continue with its inquiry (s.88(3)).

26    There is an appeal to the Supreme Court from a decision of the Tribunal “with respect to a point of law” (s.89(1)), but it can be made only with the leave of the Chairperson or a Deputy Chairperson of the Tribunal. In addition, the person against whom a complaint is made and which has been referred to the Tribunal may appeal to the Supreme Court against the exercise of any disciplinary powers by the Tribunal under Div 4 of Part 4 of the Act.

27    Proceedings before and inquiries by the Committee are governed by Part 12 Divs 2 and 3 of the Act (ss.170 - 181). Relevantly s.174 of the Act provides that the Chairperson of a Committee may exercise a power to terminate the inquiry or to hand down a decision of the Committee on an inquiry. The Committee is bound to hold an inquiry into any complaint referred to it, unless the medical practitioner against whom the complaint is made admits the subject matter of the complaint in writing (s.175(1)). The procedure before the Committee is both informal and private. The Committee “may conduct the proceedings as it thinks fit” (s.176(1)). It “may be assisted by a legally qualified officer of the Board appointed by the Registrar for that purpose on the request of the Committee” (s.176(3)). However, the nature and extent of representation at an inquiry are subject to express restrictions. Section 177 provides:

“(1) At an inquiry conducted by a Committee, the practitioner concerned and any complainant are entitled to attend and to be accompanied by a barrister or solicitor or another adviser, but are not entitled to be represented at the inquiry by the barrister or solicitor or other adviser.
(2) A committee may grant leave for an adviser (other than a barrister or solicitor) of a practitioner to address the Committee on behalf of the practitioner at an inquiry if the Committee determines that it is appropriate.
(3) A Committee may grant leave for any other person (except a barrister or solicitor or another adviser representing any person) to appear at an inquiry if the Committee is satisfied that it is appropriate for that person to appear.
4. (Not relevant)”

28    Section 179 requires the Committee to refer certain matters to the Tribunal. It provides:

“A Committee must immediately terminate an inquiry if before or during the inquiry the Committee :
(a) forms the opinion that the complaint, if substantiated, may provide grounds for the suspension or deregistration of a registered medical practitioner, or
(b) becomes aware that the Board has referred the complaint or another complaint about the practitioner concerned to the Tribunal …
(2) (Not relevant)
(3) Where the Committee terminates an inquiry it must refer the complaint to the Tribunal unless it has already been referred to the Tribunal.
(4) The Tribunal to which the complaint is referred may be the Tribunal as already constituted to deal with another complaint or the Tribunal as constituted to deal with the referred complaint.
(5) A Committee is to inform the Board when it takes any action under this section.”


ANALYSIS

A. Powers of the Board

29    The plaintiff argued that while the Board may from time to time take one or more of the courses specified in paragraphs (a), (b),( c), (d) and (e) of s.50(1), the powers conferred by each paragraph in that sub-section should, where an alternative is provided within such paragraph, be regarded as requiring an election which once made precludes the exercise of any other power or powers which would otherwise have been open to the Board under that particular paragraph. Thus, so the argument ran, whilst the Board may refer a complaint to a Committee or to the Tribunal, having once elected to refer it to a Committee, the Board may not thereafter, refer the same complaint to the Tribunal, except as mandated by s.52(1).

30    There is a number of difficulties in relation to this argument. The first is the object of the Act. It is concerned with the protection of the health and safety of the public and requires the provision of mechanisms that are designed to ensure, inter alia, that medical practitioners are fit to practise medicine. The complaint procedure is one such mechanism. Proper ethical and professional standards must be maintained, “primarily for the protection of the public, but also for the protection of the profession” (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637). The situation of the medical profession in relation to disciplinary powers is similar to the situation of the legal profession. (Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202; NSW Bar Association v Evatt (1968) 117 CLR 177 at 183-184). When construing procedural and like provisions of the Act relating to complaints, the object of the Act must be borne in mind as must the function of the Board expressed in s.132(2)(a) requiring it to promote high standards of medical practice. These considerations bespeak a beneficial rather than a restrictive construction of the Act.

31    Second, it would be curious if the exercise of the power to refer a complaint to the Commission for investigation were to deprive the Board of its power to refer the complaint to a Committee or to the Tribunal. That this was not intended is made clear by s.50(2).

32    Third, s.179 of the Act requires a Committee to terminate the inquiry immediately it becomes aware that the Board has referred the complaint the subject of the hearing before the Committee to the Tribunal(s.179(1)(b)). This provision is reinforced by the provisions of s.179(3) which require the Committee when terminating its inquiry to refer the complaint to the Tribunal “unless it has already been referred to the Tribunal” These provisions are consistent with a reference of the complaint before the Committee having been made by the Board pursuant to s.50(1)(a) of the Act, and support the conclusion that the various references provided for in s.50(1)(a) are cumulative rather than alternative. Furthermore, s.179(4) contemplates that the very complaint against the practitioner which has been before the Committee, and which is required to be referred to a Tribunal pursuant to s.179(3), has already been referred to the Tribunal. There is no suggestion in s.179 that the body which may make any such reference is restricted. It could be the Board pursuant to s.50(1)(a) or the HCCC pursuant to s.51(1)(a).

33    Fourth, there is nothing in the Act or in the context or subject matter of s.50 that indicates a legislative intention to displace the application of s.48 of the Interpretation Act 1987 which provides:

“If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires.”

34    In relation to a power that is exercisable from time to time it has been held that it may be so exercised as to add to, subtract from or reverse the result of the previous exercise. (Lawrie v Lees (1881) 7 App Cas 19 at 29 per Lord Penzance.) As Glass JA pointed out in Parkes Rural Distributions Pty Limited v Glasson (1986) 7 NSWLR 332 at 336, this means that “the donee of such power is never functus officio.”

35    In the present case the requirement in s.48 of the Act that claims be dealt with expeditiously combined with the fact that delays have occurred as a consequence of the plaintiff exercising his rights of appeal and the prospect that any inquiry into the complaint by the Committee may be no more than a prelude to a further rehearing before the Tribunal as a result of the exercise by the plaintiff of his rights under s.87 of the Act, would constitute a proper basis on which the Board could determine that an occasion had arisen for the exercise of its power to refer the complaint to a Tribunal.

36    For these reasons, I am of opinion that the Board had the power to refer the complaint against the plaintiff to the Tribunal, notwithstanding that it had previously referred the same complaint to the Committee.

B. Restriction on right to appear

37    It was submitted on behalf of the HCCC and the second defendant that if the complaint had been lawfully referred to the Tribunal, the relief sought in respect of the appearance of Ms Turnbull before the Committee was moot or alternatively either premature or no longer of any utility. Furthermore, it was argued that the matter had already been decided favourably to the plaintiff by Dunford J and that his decision in that regard had been confirmed on appeal.

38    As at the date of institution of the present proceedings there had been no decision by the Board to refer the complaint against the plaintiff to the Tribunal. In addition, even at the date of hearing, there had been no actual reference of such complaint to the Tribunal. The Committee had by then resolved to refer the complaint to the Tribunal, but had not formally done so. In these circumstances and in the light of an apprehension by the plaintiff that the HCCC would substitute a person with like qualifications of those of Ms Turnbull to represent it before the Committee, I do not think that the point is moot or premature or that there would be no utility in deciding it.

39    The matter for decision is the meaning of words “barrister or solicitor” in s.177 of the Act. In this regard a number of matters should be noted. The first is that the descriptions “a barrister or solicitor” as it occurs in s.177(1) are to be contrasted with the description “another adviser” in the same section. The second is that the right of an adviser to seek leave to address the Committee on behalf of the practitioner is available only if the adviser is not a barrister or solicitor (s.177(2)). The same restriction applies in respect of the right of “any other person” to appear at the inquiry (s.177(3)) . The third is that the phrase “a barrister or solicitor” is to be contrasted with the phrase “a legally qualified officer of the Board” which is also used in s. 177. The contrast between a barrister and solicitor on the one hand and a legally qualified officer on the other suggests that a barrister or solicitor is more than legally qualified.

40    There is no definition of a barrister or solicitor in the dictionary that forms part of the Act. The words must therefore be given their ordinary meaning.

41    The Oxford English Dictionary (Vol I, 2nd Edition 1989) defines a barrister as :

“A student of the law, who, having been called to the bar, has the privilege of practising as advocate in the superior courts of law”

42    In Collins’ Concise Dictionary of English Language, Australian Edition, 1982 barrister is defined as:

“A lawyer who has been called to the bar and is qualified to plead in the higher courts”.

43    A barrister is defined in Chambers English Dictionary (7th Ed, 1988) as :

“One who is qualified to plead at the bar in the law courts”.

44    The Macquarie Dictionary (2nd Ed, 1981) defines a barrister as:

“A legal practitioner whose main function is as an advocate in court”.

45    In Halsbury’s Laws of England (4th Ed Vol 3) it is stated that :

“The right of practising as counsel in England and Wales has traditionally been reserved to barristers, that is to those who have been called to the bar by one or other of the four Inns of Court.” (para 1103; bold added) :
and further describes a barrister as :
“a member of the bar, being called and having completed the pupilage required of him …” (para 1117; bold added)

46    Legal qualifications alone are not sufficient to entitle persons to be described or to act as barristers. These above meanings of barrister point to the requirements of formal training combined with a call or admission which carries with it a right to plead cases before the courts. Admission as a barrister requires that the person seeking admission be of good character and a fit and proper person to be a barrister. The Third Charter of Justice issued in 1823 conferred jurisdiction on the Supreme Court of New South Wales to admit “fit and proper Persons to appear and act as Barristers, Advocates, Proctors, Attorneys and Solicitors”. It enshrined the long standing requirements for a person to become a barrister or solicitor. In Re Davis (1947) 75 CLR 409, Dixon J in describing the requirements for a person to be a barrister said:

“The Bar is no ordinary profession or occupation. The duties and privileges of advocacy are such that for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges.”

and referred to:

“the reputation and more enduring moral qualities denoted by the expression ‘good fame and character’ which describe the test of … ethical fitness for the profession” (supra at 420). See also Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 287 per Fullagar J.)

47    A solicitor is defined in the Oxford English Dictionary (2nd Ed Vol XV) as :

“One properly qualified and formally admitted to practise as a law agent in any court”.

48    In Collins Concise Dictionary of the English Language (Australian Edition, 1982) solicitor is defined as :

“A lawyer who advises clients on matters of law, draws up legal documents, prepares cases for barristers, etc.”

49    Chambers English Dictionary (7th Ed ,1988) defines solicitor as:

“One who is legally qualified to act for another in a Court of law; a lawyer who prepares deeds, manages cases, instructs counsel in the superior courts and acts as an advocate in the inferior courts.”

50    The Macquarie Dictionary (2nd Ed, 1981) defines a solicitor as:

“A member of that branch of the legal profession whose services consist of advising clients, representing them before the local courts and preparing cases for barristers to try in the higher courts.”

51    Halsbury’s Laws of England (4th Ed, Vol 44 para 5) states that :

“A person is qualified to act as a solicitor if (1) he has been admitted as a solicitor; (2) his name is on the roll of solicitors … and (3) he has in force a certificate issued by the Law Society authorising him to practise as a solicitor.”

52    Again, there are formalities and requirements over and above legal qualifications that need to be complied with in order that a person may practise and be known as a solicitor. The requirements include the person being of good character and a fit and proper person to be placed and remain on the roll of solicitors. (Re Wishart, Supreme Court, Full Court, unreported, approved in Ziems v The Prothonotary of the Supreme Court of NSW, supra at 289 per Fullagar J.)

53    In order to come within the descriptions of barrister or solicitor, as those words are used in s.177 of the Act, a person must not merely have undergone a course of legal training, but must have been called or admitted and thus be entitled to appear before superior or other courts. It is not to the point that such person may be described as a particular type of barrister or solicitor; for example, an English barrister or a Victorian solicitor. It is the noun which matters, not the adjective. Adopting this interpretation of barrister and solicitor has the effect of preventing persons who are barristers or solicitors from jurisdictions outside New South Wales from being brought into inquiries before Committees constituted under the Act. This conclusion sits well with the decision in Gorman v Health Care Complaints Commission and Ors (Supreme Court, 2 September 1998, unreported) in which Dunford J said:

“In my opinion, the use of a person qualified and experienced as a barrister or solicitor in another jurisdiction, even though not technically admitted in New South Wales, constitutes a breach of s.177 …” (p.18)

54    The decision of Dunford J was confirmed on appeal, but without express reference being made to the above dictum.

55    At the material times Ms Turnbull was a person who fell within the description “solicitor” and in my opinion was not entitled to appear before the Committee as advocate to represent the HCCC.

NATURAL JUSTICE

56    The plaintiff claims that by permitting Ms Turnbull to appear before it at the directions hearings, the Committee denied him natural justice.

57    The requirements of natural justice (or procedural fairness as it is commonly referred to) apply to the Committee. This is clear from the nature of the function to be performed by the Committee and the adverse effects both professional and economic that its determinations may have.

58    The content of the requirements of natural justice is not fixed. The overarching requirement is fairness (National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312 per Gibbs CJ with whom Brennan J agreed). For a body such as the Committee that normally involves a duty to:

(i) act judicially;

(ii) deal with the matter for decision without bias;

(iii) give each party the opportunity of adequately presenting its case;

(iv) observe the procedural and other rules provided for in the relevant statute;

(v) come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice.

59    The oft quoted decision in The King v War Pensions Entitlement Appeal Tribunal: Ex parte Bott (1933) 50 CLR 228 at 248 per Starke J establishes these criteria.

60    The requirements of natural justice are not a fixed body of rules applicable at all times and in all circumstances. They will depend, inter alia, on the particular circumstances of a given case or class of case. The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 makes this clear. Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ said:

“… it must be borne in mind that these principles (of natural justice) are not to be found in a fixed body of rules applicable inflexibly at all times and in all circumstances. Tucker LJ said in Russell v Duke of Norfolk (1949) 1 All ER 109 at 118 :
‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth’
This passage was approved by the Privy Council in University of Ceylon v Fernando (1960) 1 WLR 223 and was used by Kitto J in Mobil Oil Australia Pty Limited v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504. There His Honour observed:
‘What the law requires in the discharge of a quasi judicial function is judicial fairness … what is fair in a given situation depends upon the circumstances’
We agree with the foregoing statements of the relevant law. It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions in the field of the inquiry are of importance.” (supra at 552-553; bold added)

61    Even in a given class of case the requirements of fairness may differ from case to case because of differing circumstances at the particular time. In Salemi v MacKellar (No 2) (1977) 137 CLR 396 Stephen J said that the rules of natural justice “may … vary from case to case although each be conducted before one and the same tribunal or person” (supra at 444) - a statement that was adopted by Gibbs CJ in National Companies and Securities Commission v News Corporation Limited (supra at 312). They may also differ because of the function being performed by the Tribunal at the particular time.

62    In the present case the proscribed appearances were at directions hearings rather than at a hearing of the merits of the complaint. Whilst the plaintiff complains of “machinations”, “dirty tricks”, “clever legal footwork”, and “shrewdness” on the part of Ms Turnbull, an examination of the matters so described does not appear to have given rise to any detriment or unfairness to the plaintiff. For example, Ms Turnbull’s “demand” that the plaintiff cease spinal manipulations was refused by the Chairman of the Committee and that application was not then pressed. The “acceptance of irregularity in an affidavit” which was said to result in the proceedings before the Committee being “invalid” was met by the HCCC being the nominal complainant, but how this disadvantaged the plaintiff at the relevant directions hearing does not emerge from the evidence put on by the plaintiff.

63    Undoubtedly, the appearance by Ms Turnbull before the Committee was a breach of s.177 of the Act. However, the stage at which the proceedings before the Committee were, the fact that after the events complained of the plaintiff took the matter to the Supreme Court (Dunford J.), to the Court of Appeal (Sheller and Stein JJA) seeking leave to appeal, which was refused, and to the High Court (Gaudron and Kirby JJ) for special leave to appeal, which was also refused, and the fact that the plaintiff now has what he has constantly striven for, namely a hearing by the Tribunal, negate any denial of natural justice or procedural unfairness that has impacted adversely on the plaintiff’s rights.

64    In my opinion, the breach of s.177 is, in the circumstances of the present case, no more that an irregularity. It does not avoid the directions hearings at which Ms Turnbull appeared. In any event, the procedural directions given at such hearings have not had, and now cannot have, any adverse effect on the plaintiff. As was said in Mallock v Aberdeen Corporation (1971) 2 All ER 1278:

“A breach of procedure, whether called a failure of natural justice or an essential administrative fault, cannot give … a remedy in the courts, unless behind it there is something of substance which has been lost. The court does not act in vain.” (supra at 1294 per Lord Wilberforce)

65    By the time the plaintiff instituted the present proceedings there was no longer any threat that Ms Turnbull would seek to appear before the Committee on behalf of the HCCC. By that time she had been admitted as a solicitor of the Supreme Court of New South Wales and in any event, the Committee had ruled in favour of the plaintiff in relation to the appearance of any person in a like situation. However, there was an apprehension on the part of the plaintiff that Ms Zoe Bowman, who has a law degree but has not been admitted either as a solicitor or a barrister in New South Wales or any other jurisdiction, would appear before the Committee on behalf of the HCCC. The plaintiff submitted that Ms Bowman fell within the prohibition in s.177 on the basis that being “a person who has a law degree and represents in legal proceedings (she) should be classified as a solicitor.”

66    For the reasons already expressed, I do not think that Ms Bowman can be properly so described. Accordingly, the declaration to this effect sought by the plaintiff should be refused.

SUMMARY

67    The first declaration sought by the plaintiff in his Amended Summons relates to the object of the Act. It is introductory to the second declaration sought. In effect it seeks a declaration along the lines of s.2A of the Act. There is no utility in making such a declaration and I decline to do so in the exercise of the discretion that exists in respect of the granting of such relief. (Forbes v NSW Trotting Club (1979) 143 CLR 242 at 281 per Aicken J)

68    The second declaration should be refused. For the reasons stated above, the decision to refer the complaint against the plaintiff to the Tribunal does not contravene the Act.

69    The third and fourth declarations sought should be refused for the reasons set out above.

70    The fifth declaration should also be refused because the breach of s.177 constituted by the appearance of Ms Turnbull before the Committee at its directions hearings did not result in a denial of natural justice to the plaintiff.

ORDERS

1. Summons dismissed.

2. The plaintiff is to pay the defendant’s costs.

Last Modified: 12/29/2000