Grist v the Board of Optical Registration
[1989] TASSC 28
•8 June 1989
Serial No 22/1989
List "A"
CITATION: Grist v The Board of Optical Registration [1989] TASSC 28; A22/1989
PARTIES: GRIST
v
THE BOARD OF OPTICAL REGISTRATION
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M34/1989
DELIVERED ON: 8 June 1989
JUDGMENT OF: Crawford J
Judgment Number: A22/1989
Number of paragraphs: 20
Serial No 22/1989
List "A"
File No M34/1989
GRIST v THE BOARD OF OPTICAL REGISTRATION
REASONS FOR JUDGMENT CRAWFORD J
8 June 1989
The respondent Board wished to investigate whether the appellant had committed certain offences in the course of his practice as an optician. It decided to issue summonses to certain persons who may have been his partners or employees, to attend as witnesses before the Board at one of its meetings and to produce at that time documents in their possession or control, touching or concerning the practice of the appellant. Section 26 of the Opticians Act 1913 entitles a "person who is aggrieved by any decision, order, or direction of the Board" to appeal to a judge. The appellant has purported to appeal under that section. Preliminary points have been raised for my consideration. They are whether the appellant is a "person who is aggrieved" and whether there has been "any decision, order, or direction of the Board" within the meaning of s26(1).
It appears to be common ground that the appellant is registered under the Act as an optician and the holder of an annual practising certificate entitling him to practice as such. By virtue of s9 only certified opticians may practice optometry. Pursuant to s16 the Board may, with the approval of the Governor, make regulations inter alia regulating the granting and issue of certificates and the conditions of admission to the register; regulating the practice of persons registered under the Act, and prescribing and controlling the form and manner of advertising which they may adopt; prescribing the conditions under which names may be removed from the register by the Board; and generally for the purposes of the Act. Section 17 empowers the Board to appoint a Registrar (who shall also act as Secretary to the Board).
By s18(1) the Board may temporarily suspend any person from practice where it appears to the Board to be necessary; decide upon the removal from the Register of Opticians the name of any person and thereupon the cancellation of his annual certificate, for disobeying the regulations or for other misconduct; and generally do all such things as may be necessary for carrying out the provisions of the Act. Subsection (2) prohibits the removal of a person's name from the register (but seemingly not his temporary suspension from practice) without having previously been given an opportunity of being personally heard by the Board.
Certain offences are created by s24. The Opticians Regulations 1983 purport to create certain offences. Regulation 18 specifies the ways and means by which certified opticians may advertise or publicise themselves. Regulation 20 regulates the conduct of practices in certain respects and reg21(1) provides for the extent to which a registered optician may employ other registered persons in the following terms:
"21 — (1) A person registered or licensed under the Act
(a) shall not employ more than one person registered or licensed under the Act, except with the prior written permission of the Board and subject to such conditions as the Board determines;
(b) shall not practice on behalf of, or in the employment of, any person not registered or licensed under the Act; or
(c) shall not employ a person registered or licensed under the Act at any place at which the employer does not usually attend more than half his working time per week, except with the permission of the Board or in accordance with subregulation (2)."
Regulation 24 provides that a contravention of regs18, 20 or 21 constitutes an offence for which the offender will be liable on summary conviction to a penalty not exceeding $200.
Notwithstanding that a person can be charged with breaches of s24 and regs18, 20 and 21, reg25 establishes procedures to be followed by the Board if it receives a complaint that a registered optician has not complied with the Act or the Regulations and the Board decides to summons that person to appear before it. The regulation states:
"25 — (1) Where the Board receives a complaint that a person registered or licensed under the Act has not complied with the Act or these regulations it may, in its discretion, by notice in writing, summon that person to appear before it.
(2) A notice referred to in subregulation (1) —
(a) shall state the nature of the complaint against the person referred to in that subregulation and the matters in relation to which the Board intends to proceed; and
(b) shall be served on that person —
(i) personally; or
(ii) by sending it by registered post addressed to him at his usual or last known place of abode or practice,
at least 14 days before the day on which he is required to appear before the Board.
(3) If a person who is served with a summons under this regulation fails to appear in accordance with the summons or having so appeared, absents himself from the hearing of the charge or other matter to which the summons relates, the Board may proceed as if he were present.
(4) In any proceedings to which this regulation applies, the Board may —
(a) have counsel to appear before it to assist it in any matter arising in the course of those proceedings; and
(b) direct itself by the best evidence it can procure, whether that evidence would be admissible in a court or not.
(5) A person appearing before the Board in any proceedings to which this regulation applies may be represented by counsel."
The case of the appellant is that he employs Mr G B McCreery, as an optometrist and he is in partnership with Mr C E Dobson, Miss Yeap Pooi Lan and Miss S J Whittington, all of whom are registered opticians. However it appears from correspondence between the appellant and the Registrar that the Board suspected that the appellant may have been acting in contravention of reg21(1)(a). At its meeting held on 16 December 1988 the Board passed a motion in the following terms:
"That this Board investigate the practice of Edward J Grist of optometry with a view to determining whether or not that practice has been or is being conducted in contravention of Regulation 21(1)(a) of the Opticians Regulations 1983 and for that purpose the Registrar is directed to issue summonses requiring the attendance of the following persons and the production by them of such documents or classes of documents as the Registrar may determine.
Christopher Dobson
Pooi Yeap
Grant McCreery
Sarah Whittington"
The minutes of the meeting recorded that the Registrar was asked to arrange a suitable venue and date for the hearings.
As a result summonses were issued to each of those four persons, the summonses being in similar form. The summons addressed to Mr McCreery was dated 22 December 1988 and signed by the Registrar. It stated that the Board thereby summoned and required Mr McCreery to attend as a witness before it at a meeting to be held on 23 March 1989 "to answer on oath such questions as may be put to you by the Board touching or concerning the practice of Edward J Grist of Optometry and also to bring you (sic) and to produce at that time all documents in your possession or control touching or concerning the practice of Edward J Grist of Optometry including the following ...". The summons then went on to outline the nature of the documents such as originals or copies of any partnership agreement or employment contracts with Mr Grist, income tax returns, lease agreements relating to premises and equipment, and books of account of any optometrical practice conducted by Mr McCreery in association or partnership with him. The issue of the summonses was allegedly carried out pursuant to s25 which is in the following terms:
"25 — (1) The Board may by summons require the attendance of any person as a witness, and may examine any person upon oath for the purposes of this Act.
(2) Every summons issued by the Board requiring the attendance of any person or the production of any documents shall have the same effect as a subpoena issued out of the Supreme Court in a civil action; and the obedience thereto or non–observance thereof may be enforced and punished by a judge in chambers in the same manner as in the case of the disobedience or non–observance of such subpoena."
The appellant seeks to appeal pursuant to s26 which provides:
"26 — (1) Any person who is aggrieved by any decision, order, or direction of the Board may appeal by summons to a judge.
No such appeal shall be entertained unless it is made within two months next after the notification to him of the decision, order, or direction, nor unless ten days‘ notice in writing of such appeal, stating the nature and grounds thereof, is given to the party whose decision, order, or direction is appealed against.
(2) The judge may make such order as he thinks just (including any order as to costs), and such order shall be final and without appeal, and shall be observed by the Board and by every person concerned.
(3) The proceedings on any appeal under this section shall be as may be prescribed by Rules of Court."
The summons constituting the notice of appeal states that it is:
"... against an order made by the Respondent directing the Registrar of the Respondent Board to issue, on the 22nd day of December 1988, witness summonses to Yeap Pooi Lan, Sarah Jane Whittington, Christopher Eric Dobson and Grant Bruce McCreery, such summonses being connected with an investigation into the professional conduct of the Appellant in respect of the provisions of the Opticians Act 1913.
The grounds of appeal are:
"1The order is beyond the power of the Respondent in that no proceedings have been commenced against the Appellant pursuant to the provisions of the Opticians Act 1913.
2The respondent was not entitled to examine witnesses and documents without notifying the Appellant of the hearing and affording him the opportunity to attend such hearing and participate in the conduct of the proceedings.
3The Respondent was not entitled to examine witnesses and documents without complying with section 18(2) of the Opticians Act 1913.
4The Respondent purported to issue the summonses without recourse to the exercise of any of its powers or duties granted by virtue of section 18 of the Opticians Act 1913.
5The issue of the summonses related to matters not provided for by sections 13 and 18 of the Opticians Act 1913.
6The purpose for which the summonses were issued amounted to an abuse of process.
7The result of the issuing of the summonses against the persons named in such summonses may result in such persons being obliged by operation of law to provide information which could form the evidentiary basis of legal proceedings being taken against the persons so named.
AND the Appellant applies for the following orders:
(a) An order quashing the determination of the Respondent.
(b) Such other orders as the Court deems necessary.
(c) Costs."
The Shorter Oxford English Dictionary indicates that the words "order" and "direction" are interchangeable. A similar observation was made in Benson v Benson [1941] P90 by Lord Merriman at p97. The Shorter Oxford English Dictionary provides the meaning of "decision" as "the action of deciding ... the making up of one's mind; a resolution ...". The Rules for the Conduct of the Business of the Board in the first Schedule of the Act provide in r5 that all powers vested in the Board may be exercised by a majority of the members at any meeting duly held, and all questions shall be decided by a majority and by open voting. On the face of the evidence the Board did in fact make a decision on 16 December 1988 to investigate the practice of the appellant with a view to determining whether or not that practice had been or was being conducted in contravention of reg21(1)(a), and for that purpose to cause the summonses to issue. Further the very words of the motion evidencing the decision of the Board include a direction to the Registrar to issue the summonses.
To understand the meaning of the words "any decision, order, or direction of the Board" it is necessary to consider the whole of the Act. A perusal of it reveals very few express references to the making of decisions, orders or directions. The only such references, apart from the one in s26(1), are contained in paras(b) and (e) of s18(1) and in s19(1). Section 18(1)(b) empowers the Board to "decide upon the removal from the register of the name of any person for disobeying the regulations or for other misconduct, and the cancelling of the annual certificate of any person whose name is so removed, and" to "also decide upon the restoration to the register of the name of any person so removed". It is clear that a decision to remove from the register a person‘s name or to cancel his annual certificate could be made the subject of an appeal by him under s26(1). Section 18(1)(e) empowers the Board to "decide as to the proper title or titles to designate fitly the practice of optometry". This certainly contains an express reference to a decision but it is open to question whether any appeal might properly lie from such a decision. Section 19(1) provides for a Register of Opticians to be kept by the Registrar and that it "shall contain such particulars and be in such form as the Board may direct". This contains an express provision for a direction but again it is questionable whether an appeal could lie from such a direction.
On the other hand, there are clearly cases provided for in the Act where, by implication, decisions might be made by the Board which could be the subject of appeals, notwithstanding that there is no express reference to the making of a "decision". An example is s18(1)(a) which empowers the Board to "temporarily suspend any person from practice". Clearly the exercise of that power would involve the making of a decision which could be the subject of an appeal under s26. Other examples can be found in s18(1)(d) (a power to cancel certificates), s20(b) (a power to erase from the register "any entry in the register which is proved to the satisfaction of the Board to have been fraudulently procured or incorrectly made") and s22 (a power to refuse the issuing of a certificate).
It also appears that appeals might not lie from other decisions which impliedly may be made under sections such as ss.8(1), 11(4), 13(1)(f), 16(1), 17, 28(2), 29 and 30. For example s11(4) provides that the Board shall elect one of its number to be the Chairman of the Board. Such an election would involve the Board making a decision, but it is difficult to envisage that such a decision could be made the subject of an appeal, although providing perhaps that the meeting was properly convened and the election properly held.
All of these matters make it appear that the question involved in deciding whether an appeal can lie under s26 will usually depend not so much on whether there was a "decision, order, or direction of the Board", although such an event must of course have occurred, but on whether the appellant can bring himself within the expression of a "person who is aggrieved". In this case I am satisfied that the Board made a decision and I am also satisfied that it gave a direction to its Registrar to issue the summonses. But can the appellant be described as a "person who is aggrieved" by the decision and direction?
The decision of the Board that the summonses be issued was, it claims, made pursuant to s25. In Marks and Pinnington v The Board of Optical Registration Serial No 59/1986 Wright J was concerned with an action in which the plaintiffs sought declarations that they were not bound to comply with summonses issued by the Board pursuant to s25 for the purpose of enquiring and ascertaining whether there was sufficient evidence to prosecute an optician. Alternatively they sought declarations that the summonses were invalid. They contended that the Board had no power to issue a summons except in respect of disciplinary proceedings instituted by the Board pursuant to reg25 of the Opticians Regulations 1983. It was held by Wright J that the Board had the power to summons witnesses for the purpose of an enquiry into whether a prosecution ought to be commenced and its power to issue a summons was not restricted by the Act to cases where disciplinary proceedings were in fact underway. It appears however that the appellant wishes to argue such a matter before me, as the first ground of the appeal is that the direction to the Registrar to issue the summonses is beyond the power of the Board "in that no proceedings have been commenced against the Appellant pursuant to the provisions of the Opticians Act 1913". Ground 5 is on the basis that the "issue of the summonses related to matters not provided for by sections 13 and 18 of the Opticians Act 1913". It must be stressed that I am not to decide the grounds of appeal on the hearing of the preliminary points.
The meaning of words such as "person aggrieved" depends on the statute in which they appear. However recent decisions reveal a broadening in the approach of courts. In Attorney–General of the Gambia v N'jie [1961] A.C. 617 at 634, Lord Denning said that the words "person aggrieved" were of wide import and should not be restrictively interpreted. The words were designed to exclude mere busy bodies but included persons with a genuine grievance because their interests were prejudicially affected by the decision below. This appears to have been accepted by Burbury CJ and Neasey J in Eaves v O‘Neal [1966] Tas SR 216 at pp225 and 226. It also seems to have been approved by Everett J in Re O (An Infant) Serial No 17/1981 at pp5 and 6. In Tooheys Ltd. v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at p79 Ellicott J, when considering the Administrative Decisions (Judicial Review) Act 1977, said:
"The words 'a person who is aggrieved‘ should not, in my view be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties".
These statements were approved by Bowen CJ and Franki J in Rice Growers Co–Operative Mills Ltd. v Bannerman and Trade Practices Commission (1981) 38 ALR 535 at pp539 and 540.
I do not find it necessary to definitively state when a person may be considered to be aggrieved by a decision, order, or direction of the Board so as to entitle him to appeal under s26. Certainly the Act does not purport to restrict the category of such persons. It may well be that opticians in general can have no standing for the purpose of appealing, but I am satisfied that the persons who have been summoned and the person whose affairs are being investigated, in the course of which investigation the summonses are directed to be issued, can rightly claim to be aggrieved and to be entitled to appeal for the purpose of arguing that the Board's decision and direction to issue the summonses were made without power or were for some other reason wrong. Whether there is any validity in the grounds of the appeal is a matter to be determined on the further hearing of the appeal.
I add that I am not persuaded to take a contrary view by the fact that s26(1) provides that no appeal shall be entertained unless it is made "within two months next after the notification to him of the decision, order, or direction ...". Nowhere in the Act is there a provision for the notification of any decision, order, or direction to be given to any particular person and I therefore cannot gain any assistance from the time limit when deciding whether the appellant is a "person who is aggrieved by any decision, order, or direction of the Board".
Accordingly I decide the preliminary point by holding that the appellant qualifies as a person who is aggrieved by the decision and direction of the Board that the summonses should issue.
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