James v Medical Board of South Australia & Anor

[2007] HCATrans 103

[2007] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A21 of 2006

B e t w e e n -

ROSS ALEXANDER JAMES

Applicant

and

MEDICAL BOARD OF SOUTH AUSTRALIA

First Respondent

HENRY VINCENT KEOGH

Second Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 MARCH 2007, AT 11.36 AM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC:   May it please the Court, I appear with my learned friend, MR J.D. EDWARDSON, QC, for the applicant.  (instructed by Iles Selley Lawyers)

MR M.S. HEGARTY:   May it please the Court, I appear for the second respondent.  (instructed by Michael Hegarty & Associates)

KIRBY J:   I have a note that the first respondent submits to the orders of the Court save as to costs.

MR ABBOTT:   That is so, your Honour. 

KIRBY J:   Yes, I am sorry that we have detained you, Mr Abbott.  I am sorry that you have been waiting there, but I am also sorry for ourselves for the reasons that occasioned it, but we will not trouble you with that.

MR ABBOTT:   Thank you, your Honour.  Our first application is for an extension of time in which to bring this application.

KIRBY J:   What is Mr Hegarty’s approach to the application for the extension?

MR HEGARTY:   We have no objection.

KIRBY J:   Yes, very well.  You will have an extension of time.

MR ABBOTT:   Thank you.  I now move to the two matters of public importance which the applicant submits that attract the grant of special leave.  They are the Full Court’s decision in relation to, firstly, witness immunity and, secondly, in relation to abuse of process.  Whilst the Full Court recognised that the principle of witness immunity existed, they held that it was only an immunity from suit, that is, from being sued civilly and for that reason and for a single reason of what was described as public policy, namely, accountability, the Full Court held that the immunity had no application to proceedings brought before the applicant’s professional body, in this case the Medical Board set up under the Medical Practitioners Act.

In our submission, the decision of the Full Court in relation to witness immunity has a far‑reaching and important consequence in that at least in South Australia, New South Wales, Victoria and Tasmania any professional person who gives evidence in a trial in the Supreme Court referable to their professional expertise can be the subject of a complaint to his or her professional body in respect of that evidence.  The complaint can be brought by any member of the public and, according to this judgment of the Full Court, no witness immunity can be claimed in the course of that hearing regardless of whether or not the complaint amounts to a collateral attack on the Supreme Court decision.

I say that because the Full Court recognised that the complaint proceedings in this case probably did amount to a collateral attack on the decision of the jury.  I rely on application book page 11, paragraph 33 at line 20 where Justice Anderson who wrote the lead judgment said:

From my review of the petitions and the relevant annexures, it seems apparent that if the Board were to find Dr James guilty of unprofessional conduct relating to his conduct in preparing for and giving evidence at Mr Keogh’s second trial, that finding might potentially provide further support for the petitioner’s concerns regarding the sufficiency of the evidence to justify a finding of guilt beyond reasonable doubt.

In our submission, the decision of our Full Court also raises, if leave were granted, the opportunity of this Court to revisit the decision in D’Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 which, although in relation to barristers’ immunity, it did recognise a general immunity from civil suit for witnesses in respect of evidence given in a trial. The issue which we say is raised by this case and the judgment of our Full Court is that there is now an issue as to whether or not and to what extent an immunity and disciplinary proceedings brought against a witness based on evidence given in a trial attracts witness immunity.

HAYNE J:   Let me test it this way, Mr Abbott.  Let it be assumed that a professional person in the course of evidence gave evidence to the effect that he or she had conducted the relevant professional function, presently post‑mortem examination and the like, in a manner that was flagrantly careless.  Do you say that the Medical Board could not, without infringing this immunity, inquire into whether that person was a fit and proper person to conduct a practice?

MR ABBOTT:   I say that if the issue raised by the complaint was whether or not the medical practitioner had been flagrantly careless, the question of whether or not the Medical Board could conduct an inquiry would depend upon the anterior question as to whether or not such a inquiry brought into examination the correctness of the judgment of the court in which the evidence had been given.  In other words, if the complaint proceedings amounted to a collateral attack, in our submission, that would be a good reason, applying what the policy reason expressed in D’Orta for the extension of barristers’ immunity and witnesses’ immunity in civil suits, that would be a good reason for extending the decision in D’Orta to situations involving Medical Boards and the like.

In D’Orta the majority for what they described as the strong policy reason, primarily necessity for courts’ decisions to be final, also said that “‘the avoidance of the re‑agitation by discontented parties of decided cases after the entry of final judgment’ other than by appellate processes” should be prohibited.  I refer in this regard to D’Orta’s Case at page 20, paragraph 42 where the majority ‑ ‑ ‑

KIRBY J:   Are you not a couple of steps away from getting into this area, this territory?  I mean, first of all, do you contest that for the purposes of the legislation the second respondent was a person aggrieved entitled to initiate the proceedings before the Board?

MR ABBOTT:   No, we do not.

KIRBY J:   Secondly, do you accept that the Board has its own powers and functions under its statute to protect itself from abuse of its process or frivolous and vexatious proceedings?

MR ABBOTT:   The latter, yes, the former, no.  The Board clearly has power to protect itself from frivolous and vexatious proceedings, but we say, and the other limb of our argument is, that the court erred in finding that the Board has the power to dismiss or stay proceedings as an abuse of process. 

KIRBY J:   Is not the effect of the Full Court’s decision that at least in the first instance you have to proceed on these proceedings which have been initiated by a person who has the requisite standing and which is established for the requisite purposes of protecting the public interest in respect of a professional group and agitate any issues of staying the proceedings there before the Supreme Court becomes involved in the matter?

MR ABBOTT:   Your Honour, that is why we say the Full Court erred in holding by a process of analogy that the Medical Board does have the power to stay or dismiss proceedings as an abuse of its processes.  We have referred in our outline of argument to the fact that the Medical Tribunal has been held by a differently constituted Full Court in January of last year not to have had the power.  So we now have two not necessarily conflicting decisions but certainly two decisions, one holding that the Medical Tribunal has no power in relation to abuse of process and the other, this decision, holding that the Medical Board does have that power.

HAYNE J:   Be it so, you want prohibition directed to the Medical Board.  Is that right?

MR ABBOTT:   We want prohibition, yes.

HAYNE J:   On what footing?  That the Board lacks jurisdiction or what?

MR ABBOTT:   On the basis that the proceedings constitute an abuse of the processes of the Board.

HAYNE J:   This would be an extension of hitherto accepted and known bases for the grant of relief in the nature of prohibition, would it not?

MR ABBOTT:   We have also sought a declaration as well.

HAYNE J:   A declaration is the last resort, always.

MR ABBOTT:   Yes.

HAYNE J:   Why would prohibition go from the court to the Board?

MR ABBOTT:   Because the proceedings amount to a collateral attack on the decision of the jury in the murder trial in which Mr Keogh was convicted and what has been called into question, as the second respondent concedes in its outline, is the correctness of the jury’s verdict and we say and submit that the Supreme Court has the power to protect its processes and by extension the processes of the Medical Board when the correctness of the jury’s verdict is specifically being called into question in these circumstances.  So there is an issue as to whether or not a collateral attack can be allowed to be mounted in consequence of a complaint brought by any member of the public, in this case Mr Keogh, against Dr James for challenging the correctness of Dr James’ evidence.

KIRBY J:   I appreciate that these have been brought under specific legislation of the United Kingdom, but you will have seen in the respondent’s written submissions the list of 50 cases in the United Kingdom which have been either doubted or reopened by the Criminal Appeal Sentences Commission because of concerns about aspects of forensic medicine.  So what do you say about that?  I mean, that tends to dent the ire of permitting collateral attacks in this sort of circumstance, does it not?

MR ABBOTT:   In my submission, the seminal case, of course, rather than the ones that your Honour has mentioned, is the Meadow’s Case, which was recently decided late last year by the United Kingdom Court of Appeal, General Medical Council v Sir Roy Meadow, in relation to witness immunity and the Court of Appeal held that the aspect of public policy referable for the need for a witness to be fearless and to avoid a multiplicity of actions was outweighed by what they said was a larger public policy consideration for the need for the General Medical Council to perform its statutory duty. 

We would distinguish that case because, as I have been at pains to articulate, in New South Wales, Victoria, Tasmania and South Australia it is not the equivalent of the General Medical Council which is the only entity that can bring a complaint, but any member of the public can bring a complaint.  Indeed, in this case the registrar of the Board declined to act on the complaint and thereafter Mr Keogh asked that the complaint be considered as a complaint brought by him personally.  It initially was a complaint which he had asked the registrar and the Board, of its own motion, to hear.

KIRBY J:   Does not the fact that Parliament has provided this very wide‑standing ground indicate that the purpose of the legislation is to allow a very wide range of people to initiate in the public interest and for the public protection the standards that are applied by the Board.  After all, the Board are themselves professional people and they will be alert to the particular problems faced by expert witnesses.

MR ABBOTT:   But if, as we contend, the Full Court was in error ‑ ‑ ‑

KIRBY J:   You just want to slam the door, but the problem is that the door is thrown wide open, cast asunder by Parliament in this expression.

MR ABBOTT:   Your Honour, we would propose, if leave were granted, to be arguing that the limitation on the examination of previous proceedings before the Medical Board goes hand in hand with the issue of what constitutes a collateral attack.  We say that the decision in D’Orta, by I think all judges except your Honour, was to the effect that the principle of finality of decisions, particularly of superior courts ‑ ‑ ‑

KIRBY J:   That was very much connected with the protection of advocates who in many respects have a role, as you would know, to assist the judges in deciding the cases.  So it is very much connected with a particular position of advocates before courts.

MR ABBOTT:   I accept it was obiter, but at pages 18 to 20 under the heading of “Other immunities from suit” the Court did deal with witness immunity and judges’ immunity and they came to their conclusion, as I said, in paragraph 42, and this is still under the heading of, in essence, “Other immunities from suit”, but the principle was:

“the avoidance of the re‑agitation by discontented parties of decided cases after the entry of final judgment” other than by appellate processes.  That view of the matter reflects the consideration that what is at stake is the public interest in “the effective performance” of its function by the judicial branch of government.

That is echoed in paragraph 45 on page 21 in the latter part of that paragraph where the Court said:

No argument was advanced to this Court urging the abolition of judicial or witness immunity.  If those immunities remain, it follows that the re‑litigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate.

Our basic premise is that we say that D’Orta’s clear authority that witness immunity and barristers’ immunity applies in relation to civil suits absolutely because of the public policy reason articulated.  There is no logical reason why the same ‑ ‑ ‑

KIRBY J:   Even if an inquiry by the Board could find that there was some systemic and serious professional flaw in the conduct of forensic pathology.

MR ABBOTT:   That is the tension obviously that exists.  On the one hand the principle ‑ ‑ ‑

KIRBY J:   You have to assume that that is a possibility.

MR ABBOTT:   Of course.

KIRBY J:   Assume that to be a possibility, you say the matters referred to on page 18 of D’Orta would lead to an order staying the inquiry by the Board that is set up to maintain the standards of the medical profession.  It is a big ask.

MR ABBOTT:   Just as this Court said that no matter how serious the negligence of the barrister or, indeed, of the witness, but they were ‑ ‑ ‑

KIRBY J:   That was in private litigation.  That was in damages action.  We are talking here not of private litigation but of an inquiry by a professional body which is set up to maintain the standards of the medical profession.  I think it is somewhat different to bringing proceedings for damages in personal interest.

MR ABBOTT:   Of course it is different, but what is at stake is the principle of collateral attack.  Why should a collateral attack on a decision of a jury or a judge not be allowed in civil proceedings in the strict sense, but allowed in decisions of a Board or a Tribunal?

KIRBY J:   Because civil proceedings are essentially selfish.  They are brought on behalf of individuals for their own personal and generally financial gain, whereas the activities of the Board are protective of the

public and of the maintenance of the standards of a profession and are in the hands largely of professional people.

MR ABBOTT:   But these particular proceedings have been brought, as the second respondent acknowledges, for the specific purpose of furthering the second respondent’s own ends, namely, endeavouring to persuade the Attorney‑General to forward to the Supreme Court of South Australia the petitions for mercy which the second respondent has already filed with the Attorney‑General.

So that we would say that this particular case is perhaps the paradigm example where it is not the public interest that is being evoked as the basis for the complaint before the Medical Board, but the selfish interest of Mr Keogh who wants to have his conviction, which occurred so many years ago, overturned having travelled down the legitimate appeal process and now wants to activate another process in the hope that that will add some weight for his application to the Attorney‑General. 

We say that, prima facie, there is no reason why witness immunity should not apply at least to some extent to disciplinary proceedings.  This decision is, in our respectful submission, the proper vehicle to examine the issue of the extent of protection to be afforded to barristers and witnesses in disciplinary proceedings, an issue which has not been determined by this Court.  This is the appropriate vehicle, in our submission, where the competing aspects of public policy, some of which have been articulated by your Honours and some of which have been articulated by me, can be decided as to which competing public policy should, in effect, be the public policy that prevails.

In relation to abuse of process, although I have dealt with it, I emphasise that the Court’s finding that the Board did have power to dismiss or stay proceedings as an abuse of process rested, as far as one can tell from the judgment, on an examination by analogy that because tribunals had powers of abuse of process, then so should the Medical Board.

The significant matter, of course, that occurred in this case is that Justice Anderson did not have regard to the previous decision of a differently constituted Full Court which held that the relevant Tribunal, namely the Medical Tribunal of South Australia, did not have that power and so we say his examination and his conclusion by analogy that the Medical Board had power is a flawed conclusion and also should be the subject of a grant of special leave.  Those are the matters I wish to put forward, if the Court pleases.

KIRBY J:   Yes, thank you very much, Mr Abbott.  Mr Hegarty, the Court does not require your assistance in this application.

The applicant seeks special leave to appeal from a judgment of the Full Court of the Supreme Court of South Australia.  There being a time default, but no objection on the part of the second respondent, the Court extended time. 

The applicant contends that the proceedings brought against him in the Medical Board of South Australia had been brought as a collateral attempt by the second respondent, a convicted murderer, to challenge the safety of his conviction after having exhausted the remedies of direct challenge in the criminal proceedings.

The Full Court was fully alive to the applicant’s arguments.  It concluded that, before the Board, the prisoner was a person aggrieved and that conclusion does not appear to be attended by doubt and was not challenged by the applicant.  Its conclusion that the Board has its own statutory right and duty to determine whether its processes have been engaged for a vexatious or frivolous purpose likewise appears to be correct.  The functions of the Board are for the protection of the public and the maintenance of professional standards.  When its jurisdiction and powers are properly engaged it is for the Board, at least in the first instance, to discharge its functions without interruption by the Supreme Court or, I should add, by this Court. 

The applicant does not enjoy reasonable prospects of success.  Special leave is therefore refused with costs.

AT 11.59 AM THE MATTER WAS CONCLUDED