Kabourakis v Medical Practitioners Board of Victoria
[2006] VSCA 301
•20 December 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DR FRANK KABOURAKIS | No 5657 of 2005 |
| v. | |
| THE MEDICAL PRACTIONERS BOARD OF VICTORIA |
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JUDGES: | WARREN CJ, CHERNOV AND NETTLE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 November 2006 | |
DATE OF JUDGMENT: | 20 December 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 301 | |
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MEDICAL PRACTITIONERS AND SERVICES – The Medical Practitioners Board – Professional conduct of registered medical practitioner – Complaint against practitioner - Informal hearing – Finding that practitioner had not engaged in unprofessional conduct – Whether finding final and binding – Whether open to the Medical Practitioners Board to refer complaint to a second informal hearing - Medical Practice Act 1994, ss.22, 25, 29, 38K, 39, 40, 42, 43, 52, 54 and 56
Administrative law – Non-jurisdictional error of fact - Medical Practitioners Board – Informal hearing – Finding that practitioner had not engaged in unprofessional conduct – Whether finding vitiated by non-jurisdictional error of fact – Minister for Immigration and Multicultural Affairs vBhardwaj (2002) 209 C.L.R. 597, considered.
Statutes – Statutory construction – Maxims – Nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa – Interest reipublicae ut sit finis litium.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Dr G. Griffith, QC with Mr S.J Maloney | John W Ball & Sons |
For the Respondent | Mr R.J.H. Maidment, SC with Mr S.P. Donoghue | Minter Ellison |
WARREN, C.J.:
The appellant, Dr Frank Kabourakis is a medical practitioner. He was the treating doctor for a patient who died. Subsequently, notification was made to the respondent, The Medical Practitioners’ Board of Victoria (‘the Board”) concerning the treatment by Dr Kabourakis of the patient. As a consequence, the Board gave notice to Dr Kabourakis of an informal hearing pursuant to s. 41 of the Medical Practice Act 1994.
A panel under the informal hearing provision found that Dr Kabourakis had not engaged in unprofessional conduct. The notifier to the Board complained to the Ombudsman who recommended that the Board re open its investigation. It transpired that the panel had not been provided with a medical report of one Dr Summons with respect to the treatment of Dr Kabourakis of the patient. The Board gave notice to Dr Kabourakis of a further hearing under s. 41. The doctor, through his solicitors, informed the Board that it was functus officio.
Declaratory proceedings were sought by Dr Kabourakis before a judge of the Trial Division. The judge dismissed the proceedings. Dr Kabourakis now appeals that order.
The primary issue to be determined is whether upon the finding of the panel the matter had come to a final and binding outcome. An important component of the reasoning of the trial judge was based upon his Honour’s analysis of Minister for Immigration v. Bhardwaj.[1] For the reasons stated by Nettle JA with respect to the proper application of Bhardwaj I consider the conclusion of the trial judge concerning that authority was incorrect. On that basis I would allow the appeal and make orders sought by the appellant.
[1][2002] 209 CLR 597.
In addition, I observe that there are sound legal policy reasons why the Board was prevented from acting as it did. A professional supervisory tribunal has special
functions and duties. In the exercise of such functions and duties the professional
integrity and standing of an individual is at risk. That is part of the supervisory system. However, the imperatives of certainty and finality underlie the system. In this matter, Dr Kabourakis was entitled to believe, quite properly, that once the finding of the panel was published, together with comprehensive reasons, the matter had reached certainty and finality.
CHERNOV, J.A.:
I consider that for the reasons given by Nettle, JA. the appeal should be allowed and orders be made as he proposes. As his Honour explains, absent jurisdictional or other error rendering the decision of the Panel made pursuant to s.39 of the Medical Practice Act 1994 void or susceptible to being set aside, s.25(7) of the Act does not permit the Board to reconsider a matter that has been so determined by the Panel. Whether in this case the Panel could have reconsidered the matter upon “fresh evidence” is another matter but, as Nettle, JA. has said, the opinion of Dr Summons cannot be regarded as being “fresh evidence” in the relevant sense.
NETTLE JA:
This is an appeal from a judgment given in the Common Law Division dismissing the appellant’s (“Dr Kabourakis’”) application for judicial review of the respondent’s (“the Board’s”) decision to hold a second informal hearing into the professional conduct of the appellant in the treatment of one of his patients. The issue is whether a finding by the first informal hearing is final and binding on the Board.
The facts
Between 27 May and 24 June 2002, Dr Kabourakis treated a patient for pain management following an industrial accident that occurred in December 1999. He prescribed a number of drugs and the patient later died as a result of the inhalation of vomit following ingestion of what the judge described as an overdose of the drugs.[2]
[2]See the evidence referred to [11], which implies that it may not have been an overdose.
On 17 February 2003, a person whom I shall call “the notifier” notified the Board pursuant to s 22 of the Medical Practice Act 1994 that she believed that Dr Kabourakis may have engaged in professional misconduct in the treatment of the deceased. Thereafter, the Board determined to conduct a preliminary investigation into the notification pursuant to s 25(2) of the Act and appointed one of its members, Dr Con Constantinou, to conduct a preliminary investigation into the notifier’s allegations.
On 8 April 2003, the Board gave notice to Dr Kabourakis that Dr Constantinou had been appointed as investigator for the purposes of the preliminary investigation and that the key issues identified by the Board (to which it required a written response within 21 days) were allegations that Dr Kabourakis had :
“1.Prescribed excessively for the [deceased].
2.Failed to obtain adequate information about the patient’s history.
3.Failed to seek and apply suitable alternative measures of pain relief.
4.Failed to take into account the patient’s depression when prescribing for him.”[3]
[3]Letter dated 8 April 2003 from the CEO of the Board to Dr Kabourakis.
On 24 April 2003 Dr Kabourakis sent a written response to the Board in which he set out at the history and details of his treatment of the deceased and his reasons for treating the deceased as he had.
On 11 June 2003 the Board wrote again to Dr Kabourakis informing him that it had provided a copy of his written response to the notifier for comment and that it would provide him with a copy of her reply when it came to hand. The letter continued:
“…
I note from the information available to the Board that your records indicate that you issued prescriptions to [the deceased] for Tryptanol 25 mg in quantity of 50 with 2 repeats on 3 occasions, 27/5/02, 3/6/02 and 17/6/02. I note that the dosage for the first 2 prescriptions was one tablet at night and the dosage for the third prescription 2 tablets at night. For your information, the records of the [deceased’s local pharmacy] indicate that 50 Tryptanol tablets were dispensed to [the deceased] on each of 3 dates 27/5/02, 3/6/02 and 17/6/02.
Please comment on why you issued prescriptions for 450 Tryptanol tablets in the space of 21 days.
In addition I note that you prescribed Fucidin 250 mg to be taken 4 tablets per day and issued prescriptions for 144 with 2 repeats on 27/5/02 and on 17/6/02, and that you prescribed Rifampicin 300 mg for 100 capsules at a dosage of 2 per day on the same 2 dates. Please comment on the reasons for prescribing such large amounts.
I would appreciate your reply within two weeks …”
Two days later, however, on 13 June 2003, the Board sent a further letter to Dr Kabourakis advising that the notifier had interviewed Dr Constantinou late in the day on 11 June 2003 and that:
“…
She had raised several issues in addition to that of the excessive prescriptions, and I now seek your explanation for the following:
1.[The notifier] informed [Dr Constantinou] that she had attended you and discussed the matter of [the deceased], and that you had recorded the interview, with her permission. I ask that you provide that tape…for the purposes of the investigation….
2.In your response you pointed out that the amounts and doses of morphine that you prescribed for [the deceased] were reasonable. However you have not addressed your reasons for prescribing an opiate in this patient. There are concerns about opiates for chronic pain sufferers, especially when the patien is young and unstable or depressed. Please explain your rationale.
3.[The notifier] is very upset that you did not obtain [the deceased’s] past records to assist you in understanding this patient. She believes that the records indicate that previous practitioners had concerns that [the deceased] may have addictive traits and that he had previously been a drug-seeker. Please explain whether you obtained or made efforts to obtain [the deceased’s] records, and whether you telephoned previous practitioners to discuss [the deceased’s] case or his medication. If you did, please indicate which practitioners you contacted so that we can approach them for information.
4.Please also explain your reasons for prescribing Tryptanol. If your prescribed it for depression, had you assessed whether or not [the deceased] was suicidal? Please relate this answer to my questions in my previous letter where I asked you why you prescribed such large quantities.
5. Did you consider [the deceased] a drug-seeker? Did he request certain drugs, and which ones? Did you follow up on your notation in the record that a Schedule 8 permit would be needed? Please explain your answers…”
On 30 June 2003 Dr Kabourakis submitted a written response in which he gave detailed answers to each of those questions.
On 1 August 2003 the Board wrote to Professor Olaf Drummer of the Institute of Forensic Medicine enquiring as to whether the deceased’s post-mortem blood concentrations of Morphine, free of 0.3 mg/L and Nortriptyline ~0.3 mg/L were consistent with the dosages of medication which Dr Kabourakis had prescribed or indicative of overdose; whether the post-mortem concentration of morphine was likely to have been the cause of death as a sole cause; and whether the combination of morphine and nortriptyline at 0.3 mg/L would be likely to result in enhanced central nervous system depression such as to be the cause of the patient aspirating vomitus and dying from asphyxiation.
Professor Drummer replied on 7 August 2003 that the concentration of around 0.3 mg/L was consistent with the amount prescribed and that there was no need to postulate the consumption of an overdose. He considered that it was possible that a concentration of 0.3mg/L could relate to an adverse outcome but that many persons do not suffer life threatening adverse reactions to morphine in that concentration when they have an established tolerance. Professor Drummer was also of the view that the concentration of the anti-depressant nortriptyline was consistent with normal therapeutic use and that its ability to depress the central nervous system and cause death was likely to be relatively small.
On the same day the Board wrote to a Dr John Summons, a general practitioner in Camberwell, requesting an opinion as to whether it was reasonable for Dr Karaboukis to prescribe MS Contin to the deceased in the amounts which he did.
Dr Summons replied on 12 August 2003 as follows:
“Dear Mr Smith,
Re: Opinion based on information in your letter of 7 August 2003
You have asked me to comment on two issues related to the care the GP provided to [the deceased].
1.Was it a reasonable decision by the GP to prescribe MS Contin to [the deceased]?
I believe it was reasonable to begin prescribing the MS Contin as a part of a treatment regime.
The regime should have included:
a.Obtaining information from the previous GP to obtain better knowledge regarding Tom’s pain tolerance and why pain had escalated to require increased medication plus any other relevant information.
b.Involvement of a pain management team – this however is not always a ‘quick’ process due to delay in obtaining an appointment, but a phone call could have been made to seek advice.
c. Opinion of the treating orthopaedic surgeon or registrar to assess pain likely to be caused by the management of the fracture.
d.Contact with the Drug and Poisons Unit of the Department of Human Services was essential as patient had been treated with morphalgin for a period of time (unstated) and as requirements for pain medication were ongoing.
2.With regard to progressive increase in MS Contin, it would seem unwise to have increased the dosage to such high levels until conditions of 1. above had been undertaken and an appropriate management plan had been implemented.
I would be happy to discuss this further with Dr Constatninou.
Yours sincerely,
John Summons
MB BS FRACGP FRNZCGP(H)”
On 12 August 2003, the notifer also wrote to the Board expressing dissatisfaction with Dr Kabourakis’ response of 30 June 2003. She stated that the deceased’s listed cause of death was a prescription drug overdose with aspiration and she claimed that she believed that if Dr Kabourakis “had made all necessary steps his death without doubt would have been avoided”. She asked the Board to consider the matter further.
On 24 September 2003 the Board wrote to Dr Kabourakis giving notice that it had determined at its recent meeting to conduct an informal hearing into his professional conduct pursuant to s 38K(2) of the Act in relation to the following allegations:
“1. That you failed to seek and obtain important information about the history and treatment of [the deceased] prior to commencing him on amitriptyline and high doses of morphine.
2.That you failed to institute an appropriate management plan for [the deceased’s] complex issues and relied only on an enhanced analgesia programme.
3. That you inappropriately prescribed large doses of morphine to [the deceased], who was a patient vulnerable to abuse of the medication because of his age and condition.
4. That you provided prescriptions for amitriptyline and two antibiotics in a haphazard and excessive manner, creating a circumstance allowing possible abuse of the medication to occur.”
On 6 October 2003 the Board wrote again to Dr Karaboukis giving him formal notice of the informal hearing in accordance with s 41 of the Act and enclosing a volume of correspondence including Professor Olaff’s opinion but excluding the Board’s letter of 7 August 2003 to Dr Summons and Dr Summons’ opinion of 12 August 2003.
The informal hearing was held on 30 October 2003 before a panel comprised of Dr P D Molloy (Chair) who was a Board member-medical, Mr W F Johnson, also a Board member-medical, and Ms L Shatin, a Board member-non-medical. The panel interviewed the notifier and Dr Kabourakis.
On 13 November 2003 the panel published its finding, as follows:
“The Panel found pursuant to s 43(1)(b) of the Medical Practice Act 1994 that Dr Kabourakis had not engaged in unprofessional conduct.”
The Panel gave as its reasons therefor, that:
·“Dr Kabourakis is a well qualified and experienced general practitioner whose practice includes many young people and patients suffering the serious consequences of industrial accidents with chronic pain.
·He had no reason to doubt the history provided by [the deceased] and his father. He believed that his practice had requested the previous medical file and allowed one month for it to arrive. This is a reasonable time interval.
·He developed an appropriate pain management plan for Robert and relied on the fact that he was in the care of his father, was compliant and was showing no signs of having a lowered mood.
·The combination of MS Contin and tryptanol was appropriate as was the way the dosages were increased over the period of time involved. The prescribing of long acting pain relief is regarded as better pain management than the occasional use of shorter acting agents e.g. pethidine. The prescribing of the antibiotics was appropriate.
·The provison of excessive prescriptions was in part explained by [the deceased] having left a repeat prescription in the county. This occurred on at least one occasion. Dr Kabourakis could not explain the other prescription with automatically generated repeats. He now considers repeats were not necessary but at the time had no indication that there was any potential for misuse of the medication.”
The notifier was dissatisfied with the finding and complained to the Victorian Ombudsman. After an investigation which seems to have taken the better part of a year, the Ombudsmand recommended that the Board re-open its investigation and hold a new informal hearing into the same allegations, and the Board accepted the Ombudsman’s recommendation.
On 14 January 2005 the Board wrote to Dr Kabourakis as follow:
NOTIFICATION RECEIVED FROM [THE NOTIFIER]
“On 30th October 2003 the Medical Practioners Board of Victoria conducted an informal hearing into your professional conduct following a complaint by [the notifier].
[The notifier] was dissatisfied with the Board’s investigation and went to the Victorian Ombudsman who conducted a lengthy review of the Board’s investigation. As a result he has recommended that the Board re-open its investigagion and hold a new informal hearing into the same allegations.
The problem the Ombudsman identified was that the Hearing Panel was not provided with an expert opinion [scil. Dr Summons’ opinion] which the Board received during the investigation leading up to the hearing and could not take into account.
This failure to provide the Panel with the report was an error on our part. I enclose a copy of the report for your information.
I apologise to you for the inconvenience and possible distress that this error will cause you.
I would be happy to speak to you further explain if that would assist.
… ”
On 2 February 2005, the Board purported to give notice of the further preliminary hearing hearing pursuant to s 41 of the Act.
On 16 February 2005 Dr Kabourakis’ solicitors replied on his behalf that they considered that the Board was functus officio and sought an assurance that the Board would not proceed with the further preliminary hearing. Such an assurance was not forthcoming, however, and so on 21 April 2005 Dr Kabourakis instituted proceedings by originating motion for judicial review of the decision to hold the second hearing.
The Medical Practice Act 1994
The investigations into a complaint about the professional misconduct of a practising medical practitioner are governed by Part 3 of the Act. Section 22 provides for notifications of complaints, thus:
“22. Notifications about practitioners
(1)A person may notify the Board about any matter relating to a registered medical practitioner if the person believes it indicates that -
(a)the medical practitioner's ability to practise medicine may be affected because-
(i) of the physical or mental health of the practitioner; or
(ii) the practitioner has an incapacity; or
(iii)the practitioner is an alcoholic or drug-dependent person; or
(b)the medical practitioner may have engaged in unprofessional conduct; or
(c)the professional performance of the medical practitioner may be unsatisfactory.”
Section 25 provides for the Board to investigate complaints (as well as conducting investigations on its own motion) as follows:
“25. Commencement of investigations by the Board
(1)The Board must investigate a notification made under section 22 if-
(a)the notification is not to be dealt with by the Health Services Commissioner under section 23; and
(b)the Board has not determined the notification to be frivolous or vexatious.
(2)In order to determine whether or not it is necessary to conduct an informal or formal hearing or whether or not a performance review should be carried out, the Board must conduct a preliminary investigation into the notification.
(3)The Board, of its own motion, may determine to conduct a preliminary investigation into a matter referred to in sub-section (4).
(4) If the Board believes that-
(a)the ability of a registered medical practitioner to practise medicine may be affected because-
(i) of the physical or mental health of the practitioner; or
(ii) the practitioner has an incapacity; or
(iii)the practitioner is an alcoholic or drug-dependent person; or
(b)the ability of a medical student to have direct patient contact as part of her or his course of study may be affected because of-
(i)the physical or mental health of the student; or
(ii) the student has an incapacity; or
(iii)the student is an alcoholic or drug-dependent person-
the Board may, in writing, appoint one of its members to conduct a preliminary investigation into the matter and delegate to the appointed member its power to conduct a preliminary investigation, other than its power to make determinations upon a preliminary investigation.
(5)If the Board believes that the professional performance of a medical practitioner may be unsatisfactory, the Board may, in writing, appoint a registered medical practitioner to conduct a preliminary investigation into the matter and delegate to the appointed practitioner its power to conduct a preliminary investigation, other than its power to make determinations upon a preliminary investigation.
(6)If the Board believes that a medical practitioner may have engaged in unprofessional conduct, the Board may, in writing, appoint one or more of the following-
(a) an officer of the Board;
(b) a lawyer or investigator retained by the Board;
(c)a sub-committee of the Board consisting of not more than 3 members of the Board-
to conduct a preliminary investigation into the matter and delegate to the appointed person or the members of the sub-committee its power to conduct a preliminary investigation, other than its power to make determinations upon a preliminary investigation.
(7)The Board, of its own motion, may determine to conduct (with or without conducting a preliminary investigation)-
(a)a formal hearing into the ability of a registered medical practitioner to practise medicine; or
(b)a formal hearing into the ability of a registered medical student to have direct patient contact as part of her or his course of study; or
(c)a review of the professional performance of a registered medical practitioner; or
(d)an informal or formal hearing into the professional conduct of a registered medical practitioner.”
Section 29 of the Act governs the procedures for the initiation of a preliminary investigation, as follows:
“29.Notice of preliminary investigation into ability to practise or professional performance
(1) A person appointed to investigate-
(a)a registered medical practitioner's ability to practise medicine or her or his professional performance; or
(b)a medical student's ability to have direct patient contact-
must give notice of the preliminary investigation to the medical practitioner or medical student.
(2) A notice under sub-section (1) must-
(a) be in writing; and
(b)be sent by registered post, as soon as possible after the Board's decision to conduct a preliminary investigation has been made; and
(c)advise the practitioner or student of the nature of the matter to be investigated; and
(d)in the case of an investigation into the ability of the medical practitioner to practise medicine or the ability of the medical student to have direct patient contact, ask the practitioner or student to advise the Board as to whether or not she or he will agree to undergo a medical examination within 28 days of receiving the notice; and
(da)in the case of an investigation into the professional performance of the medical practitioner, if the person conducting the preliminary investigation believes a performance assessment of the medical practitioner is necessary, ask the practitioner to advise the Board as to whether or not she or he will agree to undergo a performance assessment within 28 days of receiving the notice; and
(e)advise the practitioner or student of the procedures that can be taken under this Part.”
Section 38K of the Act provides for the outcome of the preliminary investigation, thus:
“38K. Outcome of a preliminary investigation
(1)Upon completing a preliminary investigation into the professional conduct of a registered medical practitioner, the person or sub-committee appointed by the Board to conduct the investigation may make one of the following recommendations-
(a)that the investigation into the matter not proceed further;
(b)that an informal or formal hearing be held into the matter;
(c)that the medical practitioner undergo a medical examination;
(d)that the medical practitioner's performance be assessed by a medical practitioner or reviewed by a performance review panel.
(2)The Board must determine whether or not to act on the recommendations of the person or sub-committee appointed by the Board to conduct the preliminary investigation.”
Section 39 of the Act provides that, if the Board determines that an informal hearing be held into the professional conduct of a registered medical practitioner, the Board must appoint a panel to hold the hearing; and fix a time and place for the hearing to be held; and by registered post, serve a notice on the practitioner which complies with section 41; and serve notice on any notifier by registered post under section 57(4)(a) and (b).
Section 40 of the Act provides that the panel so appointed is to consist of not more than three persons, of whom two are members of the Board and at least one is a registered medical practitioner.
Section 42 of the Act provides that the panel must hear and determine the matter, thus:
“42. Conduct of an informal hearing
At an informal hearing-
(a)the panel must hear and determine the matter before it; and
(b)the practitioner who is the subject of the hearing is entitled to be present, to make submissions and to be accompanied by another person but is not entitled to be represented; and
(c)the proceedings of the hearing must not be open to the public.”
Section 43 of the Act provides for the findings and determinations which are open to the panel to be made:
43. Findings and determinations of an informal hearing
(1)After considering all the submissions made to the hearing the panel may find either-
(a)that the practitioner has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature; or
(b)that the practitioner has not engaged in unprofessional conduct.
(2)If the panel finds that the practitioner has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature, the panel may make one or more of the following determinations-
(a) that the practitioner undergo counselling;
(ab)that the medical practitioner undertake further education of the kind stated in the determination and to complete it within the period specified in the determination;
(b) that the practitioner be cautioned;
(c) that the practitioner be reprimanded.
Section 52 governs the procedure to be followed at an informal hearing. The Panel is not bound by the rules of evidence and may inform itself in any way it thinks fit and the proceedings must be conducted with as little informality as is possible. But the panel is bound by the rules of natural justice.
Section 54 provides that a determination made by a panel on a hearing comes into operation on its making or at any later time stated in the determination and that it has effect as if it were a determination of the Board.
Section 56 provides that a panel must give reasons for a determination made under Part 3 of the Act to the practitioner who is the subject of the determination and that any person affected by the determination may apply to the panel for reasons for the determination.
There are further provisions within Part 3 for the conduct and consequences of a formal hearing. The major differences between formal and informal hearings are that a formal hearing is open to the public and may result in graver consequences in terms of suspension and deregistration.
The proceeding below
The thrust of the Dr Kabourakis’s case before the judge below was that the informal hearing conducted on 30 October 2003 had heard and determined the matter of his professional conduct in the treatment of the deceased and, in accordance with s 43(1)(b) of the Act, had come to a final and binding finding or determination that he had not engaged in professional misconduct. It followed, Dr Kabourakis submitted, that the decision could not be revisited in a second preliminary hearing or otherwise except on appeal or by review for jurisdictional error. In fact, however, jurisdictional error was not alleged. The only basis on which it had been determined to hold a second hearing was that there had been a failure to furnish the first hearing with the opinion of Dr Summons (which, according to the Board, was the result of error of fact which should be corrected by means of the further hearing). According to Dr Kabourakis, it was not open to revisit the determination of the first informal hearing on that basis.
The judge rejected that contention. Although acknowledging the general rule that an administrative decision once made in accordance with an enabling statute cannot be revisited for error short of jurisdictional error, the judge observed that the rule yields to contrary statutory intention and, in his Honour’s view, s 25(7) of the Act evinced such an intention. As his Honour put it:
“…whilst it may be arguable that the panel which undertook the first informal hearing and made a finding is at the end of its statutory power, the presence of s 25(7) makes it clear in my opinion that the Board has a separate and distinct power which it may exercise of its own motion. That is what it has done by establishing a second panel to undertake a second informal hearing. In addition, there is nothing in the Act which precludes the Board from correcting a mistake by holding a second informal hearing in accordance with the principles stated in Bhardwas’s case. That is, the decision is an administrative one, consistent with the Board’s duty to properly investigate a notification in the interests of good administration and fairness, and the functus officio rule must give way. It follows that the Board has the power in accordance with the principles stated by the High Court [in Bharwdwaj][4].
[4]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 616 per Gaudron and Gummow JJ and at 603, per Gleeson CJ.
The judge also made reference to s 40 of the Interpretation of Legislation Act 1984 and cognate provisions and, although his Honour said that his conclusion did not depend upon the operation of s 40, he concluded that it gave the Board an implied power to exercise and re-exercise its power under s 25(7) in respect of a matter as many times as may be needed. As his Honour put it:
“In my opinion, the Board has the necessary authority to carry out a further investigation into the notification made by the holding of a second informal hearing. It has the power by reason of s 25(7), and the implied power given to it by s 40 of the Interpretation of Legislation Act 1984. The doctrine of res judicata does not apply. With respect to the question of abuse of process, I am not persuaded that there is an abuse of process in holding a second informal hearing. It follows that the proceeding must be dismissed.”
The principles in Bhardwaj’s case
With respect, I do not think that the judge’s conclusion was correct. As is apparent, his Honour’s analysis rests on what he described as the principles stated in Bhardwaj’s case. But, in my view, the principles stated in Bhardwaj’s case do not apply. Bhardwaj was decided on the basis that the decision maker had committed a jurisdictional error. That meant that the decision was a either nullity or that the decision maker had failed to discharge his duty to make a decision. As Gaudron and Gummow, JJ. put it:
“…a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act.”[5]
[5](2002) 209 CLR 597 at 616[53], see also at 605[15], per Gleeson CJ, at p 647[154]-[155], per Hayne J and at 649[163], per Callinan J.
But as Gaudron and Gummow JJ also pointed out, it would have been different if it had been a case of non-jurisdictional error, because a decision affected by non-jurisdictional error remains for most purposes final and binding until set aside on appeal or judicial review:
“Certainly, it follows from Pt 8 of the Act, particularly s 478, that a decision which does not involve jurisdictional error and which is not challenged within twenty-eight days is effective for all purposes notwithstanding that, for the purposes of that Part, it involves reviewable error.”[6]
[6](2002) 209 CLR at 614[50].
Similarly, as Hayne J said:
“…
The error made by the Tribunal in this case must be contrasted with other, non-jurisdictional, errors that a decision-maker may commit. In particular, a jurisdictional error of the kind made in relation to the September decision is fundamentally different from a case where, for whatever reason, a decision-maker has second thoughts about such matters as findings of fact. No doubt the word ‘error’ can be applied to the circumstances last mentioned, but the legal significance of such an error is, for the reasons given by Brennan J in Attorney-General (NSW) v Quin[7], radically different from the significance of a jurisdictional error. As his Honour said:
‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power ... The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’
An ‘error’ about the findings of fact that are made, which does not constitute or reveal a jurisdictional error, concerns the merits of administrative action, not its legality.”[8]
[7](1990) 170 CLR 1 at 35-36.
[8](2002) 209 CLR 597 at 645[149], see also at 603[8], per Gleeson CJ and at 647[159], per Callinan J.
It was not contended that the panel who conducted the first informal hearing on 30 October 2003 committed jurisdictional error. Such if any error as attached to the panel’s failure to consider Dr Summons’ opinion was an error about the panel’s finding of fact. In the language of Bhardwaj, the error concerned the merits of the finding; not its legality. Thus, in contradistinction to the position in Bhardwaj, the panel did not fail to perform the function or duty which was imposed on them by the statute. At worst, they made an error of fact in the discharge of their function or duty.
Common sense favours finality
So to conclude is not necessarily the end of the matter. For whether an error is jurisdictional or non-jurisdictional, the question of whether a decision may be re-opened to correct an error turns in the end on the meaning of the statute under which the decision is made. But, unlike the judge, I consider that the effect of the Act properly understood is that a finding of the panel is final and binding except upon appeal or review.
Self evidently, an administrative decision has only such force and effect as is given to it by the law pursuant to which it is made. As was pointed out in Bhardwaj, Parliament may give an administrative decision whatever force it wishes.[9] Consequently, as the judge made plain, the question in this case comes down to whether the statute manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen.[10] But, as was also said in Bhardwaj, as a rule a statutory tribunal cannot revisit its own decision simply because it has changed its mind or recognises that it has made an error within jurisdiction.[11] More often that not, the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is the paramount consideration, and the statutory scheme, including the conferring and limitation of rights of review on appeal, will be seen to evince an intention inconsistent with capacity for self correction of non-jurisdictional error. In the bulk of cases, logic and common sense so much incline in favour of finality as to permit of no other conclusion.
[9](2002) 209 CLR at 613[46] and [47], per Gaudron and Gummow JJ.
[10](2002) 209 CLR at 603[8], per Gleeson CJ.
[11]Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 862, per Sopinka J, which was referred to with approval in Bhardwaj by Gleesson CJ at 603[7] and by Gaudron and Gummow JJ at 615[52].
So it was in Bhardwaj, where it was perceived that the very limited rights of appeal conferred by Part 8 of the statute meant that a decision which may have involved non-jurisdictional error but was not challenged within twenty eight days was effective for all purposes.[12]
[12] (2002) 209 CLR at 614[50].
Similarly, in Re 56 Denton Road, Twickenham[13] which was concerned with the War Damage Act 1943 (UK) and the power of the War Damage Commission set up under the act to pay compensation to property owners who had suffered loss from enemy bombing raids on London in 1940, Vaisey J held that:
“…where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affect be altered or withdrawn by that body.
…
I think that the contrary view would introduce a lamentable measure of uncertainty, and so much disturbance in the minds of those unfortunate persons who have suffered war damage that the Act cannot have contemplated the possibility of such vacillations as are claimed to be permissible in such a case as the present.[14]
[13] [1953] 1 Ch 51.
[14] [1953] 1 Ch 51 at 56-7.
More recently, in New South Wales, in Walter Construction Group Limited v Fair Trading Administration Corporation,[15] Grove J was concerned with claims under a statutory building insurance scheme. His Honour said:
“I do not construe that provision as vesting a power to make and unmake decisions infinitely. If power does not stretch to infinity, there must be in the circumstances of a particular case and ‘as occasion requires’ a terminus. In this case it was reached with the communication of decision by the letter of 24 October 2002.”[16]
An application for leave to appeal was refused by the New South Wales Court of Appeal.[17] Santow JA, with whom Sheller JA and Tobias JA agreed, referred with apparent approval to the passage set out above.[18]
[15] [2004] NSWSC 158.
[16] Ibid at [40].
[17] Walter Construction Group Limited v Fair Trading Administration Corporation [2005] NSWCA 65.
[18][2005] NSWCA 65 at [53] and [108] per Santow JA and Sheller JA at [9] and [10].
So too in Export Development Grants Board v EMI (Australia) Ltd,[19] in which the Full Court of the Federal Court held that once the Export Expansion Grants Board had determined an entitlement to a grant under s 11 of the Export Expansion Grants Act 1978 (Cth), it was functus officio and could not re-open the decision. [20]
[19] (1985) 9 FCR 269.
[20] At 276.
To similar effect, in Firearm Distributors v Carson[21] Chesterman J was concerned with the power conferred on the Commissioner of Police under the Weapons Regulations 1996 (Qld) to assess compensation payable in respect of surrendered weapons. Regulation 71(3) provided that “the Commissioner (of Police) is to decide the amount of compensation payable to the person under this section” and having determined on 21 April 1998 that the compensation payable was $971,160, on 7 May 1999 the Commissioner purported to re-assess the amount as being $306,160. His Honour held that the first decision was possessed of such a degree of finality as not to be amenable to reconsideration or reversal. [22]
[21] (2001) 2 Qd R 26.
[22]Ibid at 30[36] and 32[41].
So too in Ping v Medical Board of Queensland,[23] which is of particular significance because of its similarity in fact to this case, where Moynihan, J. was concerned with the power conferred on the Medical Board of Queensland under s 164(1) of the Health Practitioners (Professional Standards) Act 1999. It provided as follows:
[23](2004) 1 Qd R 282.
“ (1) As soon as practicable after completing a hearing of a disciplinary matter relating to a registrant under subdivision 2, or within 14 days after the end of the period for making a submission stated in the notice given to a registrant under section 153, the board or disciplinary committee must decide whether a ground for disciplinary action against the registrant is established.”
The question was whether the Board, having determined to conduct a disciplinary proceeding by way of correspondence and having advised the parties of its intention to do so, could rescind its determination and direct that the matter proceed by way of hearing. Moynihan, J. held not. After referring to Bhardwaj[24] and Firearms Distributors v Carson,[25] and noting that the question before him turned on the particular legislation with which he was concerned, his Honour said:
“It is true that the legislation, the Health Practitioners (Professional Standards) Act 1999 and the Medical Practitioners Registration Act 2001, implements schemes designed to ensure that an appropriate level of care is delivered to the public in a professional, safe and competent way. Among other considerations this is to uphold the confidence of the public in the profession. Those general considerations have to yield to the specific provisions of the legislation.
In my view, the provisions of s 164(1) of the Health Practitioners (Professional Standards) Act required the respondent to decide or elect to proceed by way of correspondence or to pursue the alternative course. In the knowledge of the facts which subsequently led to its purported change of mind, it chose to adopt the former course.
In summary, on my view of the legislation the respondent having chosen one course cannot abandon it. On this view the Acts Interpretation Act does not arise for consideration.” [26]
[24]Supra.
[25]Supra.
[26](2004) 1 Qd R at 284.
The decision in Kurtovic
Presumably, there are some cases which point in the opposite direction. But it may not be without significance that we were not referred to any that were directly in point. The best that counsel for the Board could offer was the decision of the Full Court of the Federal Court of Australia in Minister for Immigration andEthnic Affairs v Kurtovic,[27] to which the judge also referred, but which to my way of thinking is of very little assistance.
[27](1990) 21 FCR 193.
Kurtovic was concerned with deportation and therefore with an area of administrative law that is different to most others. The legislation in question was construed as conferring on the Minister a discretionary power of deportation that was exercisable from time to time in accordance with government policy. It followed, as it was held, that it was open to the Minister following a change in government policy to deport a person even though the Minister had previously determined under the former policy but otherwise on the same facts that the person should not be deported.
If I may say so with respect, I see very little in that which is pertinent to the case in hand. There should be nothing relevant to the assessment of a medical practitioner’s standard of professional conduct which could properly be equated to the role of government policy in the administration of the deportation power.
The revenue cases and the public interest
Counsel for the Board also referred to observations in Wade and Forsyth’s Administrative Law which are derived from the sort of reasoning that is applied in cases concerning the assessment of rates and taxes. The general rule in such cases is that “matters decided for the purposes of one year’s assessment or of one rating list do not amount to res judicata for the purposes of later assessments or lists.”[28] As Wade & Forsyth observe, the rule is based on the principle that an assessing officer has a statutory public duty to make correct assessments on the taxpayer or ratepayer on each occasion that an assessment is to be undertaken, and that no estoppel can avail against him doing so. According to the learned authors:
“The same principle ought to apply in all situation where powers have to be exercised in the public interest. Suppose that certain disciplinary charges were made against a schoolteacher whose removal can be required by the education authority only on educational grounds, that no educational grounds are shown before the authority’s disciplinary committee, and that the complaint is dismissed. What is the position if it is later discovered that there were in fact good educational grounds on which the teacher ought to have been removed? The answer should be that the education authority always has the power to require removal when such grounds in fact exist; that is a power which it must exercise in the public interest; that its powers cannot be fettered by any estoppel, by res judicata or otherwise; and that it is therefore free to act on the fresh evidence. The additional dimension of the public interest is what makes the difference.” [29]
[28]Wade & Forsyth, Administrative Law 8th Ed. at 251; see also FederalCommissioner of Taxation v Wade (1951) 84 CLR 105 at 117; Federal Commissioner of Taxationv Australia and New Zealand Savings Bank Ltd (1994) 181 CLR 466 at 479.
[29]Wade & Forsyth, above at 253-4, my emphasis.
Counsel for the Board argued by parity of reasoning that the public interest in identifying and taking appropriate action against medical practitioners who have engaged in unprofessional conduct is sufficient to make the difference as between the position of the Board and the other statutory tribunals that were the subject of the cases mentioned above. They submitted on that basis that the answer in this case should be that the Board always has the power to inquire into the professional conduct of a medical practitioner and that its powers cannot be fettered by any previous exercise of its powers.
As I see it, however, that submission faces difficulties at a number of levels. To start with, it is not apparent to me why a principle which applies to the assessment of tax payers and rate payers on an annual or other statutory periodic basis should be taken to apply to a duty like that under s 39 to refer a matter to a hearing, which ex facie calls for a once-for-all discharge in respect of each notification the subject of investigation. As I understand the revenue authorities, the rationale of them is that, because taxing legislation contemplates assessment on a periodic basis, nothing done in respect of one period should be taken to estop or bind the taxing authorities in respect of another period. It is difficult to conceive of much of a parallel between that and the position of the Board under s 39 or the findings of a Panel under s 43.
In the second place, it is not clear to me how far the observations in Wade & Forsyth are intended to go. Seemingly, they start out as an argument that an education authority which has made a decision that there are not grounds of one kind to dismiss a school teacher is not precluded from later dismissing the teacher upon the establishment of other grounds. Thus expressed, the argument goes no further than that the investigation and determination of a complaint about one matter does not foreclose the possibility of investigation and determination in respect of another matter. As such it is unremarkable. But the observations appear then to go on to speak in terms of “fresh evidence”, which is ordinarily conceived of as something different to “fresh grounds”, and so perhaps to imply that it would be open to the authority on the basis of fresh evidence to dismiss a teacher on grounds for which it had previously determined that he or she should not be dismissed. Thus expressed, the argument seems to be that the authority could re-open a matter on the basis of fresh evidence alone. If so, it goes a long way further than the tax and rating cases on which it is said to be based.
In the third place, questions of the kind with which we are concerned in this appeal are ordinarily not easily to be answered by asserting the existence of a “public interest” and what “should be”, unless of course the “public interest” and the what “should be” are to be found reflected in the provisions of the Act. In the language of the High Court in another but related context:
“Appeals to general notions of [public interest and what should be] do no more than attempt to mask the absence of any foundation in the legislation for the conclusion which is asserted.”[30]
[30]Federal Commissioner of Taxation v Ryan (1999) 201 CLR 109 at 123[19], per Gleeson CJ and Gummow and Hayne JJ.
In the fourth place, allowing that the effect of a finding pursuant under s 43(1)(b) of the Act depends on the proper construction of the Act, and putting aside for the moment the effect of s 25(7), it appears to me that there are at least just as good reasons to conclude that the Board may not revisit such a finding as there were to conclude that the several decisions dealt with in the cases I have mentioned could not be re-opened.
The construction of Part 3 of the Act
I start with the general proposition enunciated in Bhardwaj that the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is more often than not the paramount consideration. It is similar to the principles of public policy which are said to be encapsulated in the maxims nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa [31] and interest reipublicae ut sit finis litium.[32] More particularly, however, to borrow from the language of Vaisey, J in Re 56 Denton Road, Twickenham, it would introduce a lamentable measure of uncertainty and so much disturbance in the minds of those unfortunate persons who have cause to complain of, or are the subject of complaint of, unprofessional conduct in the practice of medicine that the Act cannot have contemplated the possibility of such vacillations as are claimed to be permissible in such a case as the present.
[31]Pearce v The Queen (1998) 194 CLR 610 at 636[89], per Kirby J.
[32]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597, per Gibbs CJ and Mason and Aickin JJ.
Secondly, one may ask rhetorically where would the exercise stop if it were possible for the Board to re-open the findings of an informal hearing. If a finding might be re-opened once, then why not twice and, if twice, why not as many times as the Board determined to be appropriate (always assuming bona fides and, objectively speaking, a good reason to re-open)? In principle, there would be nothing in the way of the Board re-opening a finding on multiple occasions and for years after the events in issue.
Perhaps recognising the problems to which that consideration gives rise, counsel for the Board submitted that any excesses in the exercise of power to re-open the findings of an informal hearing could in an appropriate case be prevented by application for a stay of further hearing as an abuse of process. But that is not an answer to the problem. If the effect of the Act were that the Board had capacity to re-open a finding for good reason whenever and for so long as it chose, there would be no abuse of process in exercising the power for good reason whenever and for so long as it chose. Surely, the better view is that there must be a terminus and, by parity of reasoning with the analysis of Grove, J. in Walter Construction Group Limited v Fair Trading Administration Corporation, the logical place for it is the finding and determination which results from the first informal hearing.
Thirdly, s 45 of the Act provides that upon completion of an informal hearing the medical practitioner the subject of hearing may request that a formal hearing be held to review any findings and determinations of the informal hearing. There is, however, no corresponding provision for the Board of its own motion to convene a formal hearing to review the findings and determinations of the informal hearing. Indeed, to the contrary, s 44 of the Act implies that once the Board has determined on the path of an informal hearing it is bound by its election unless before the completion of the informal hearing it abandons the informal hearing and refers the matter to a formal hearing. Like the Professional Standards Act considered in Ping v Medical Board of Queensland, the Act appears to require the Board to decide or elect to proceed by way of informal hearing or, before the completion of the informal hearing, to refer the matter to a formal hearing and that, having elected to go down the path of an informal hearing and not arresting the process before the completion of the hearing, the Board is bound by the result.
Granted, it does not necessarily follow from the fact that the Board is powerless to refer the findings and determinations of an informal hearing to a formal hearing that the Board is powerless to refer the findings and determination of an informal hearing to another informal hearing. But logic and common sense tend to suggest that it was not what Parliament intended.
Fourthly, as was conceded by the Board, if the Board had power to refer the matter to a second informal hearing, it is at least possible that the second informal hearing would reach findings that are inconsistent with the findings of the first informal hearing and make determinations that are additional or different to those of first informal hearing. Since, however, a statutory tribunal has only those powers which are expressly conferred upon it by statute or which are necessarily incidental thereto, the second or subsequent informal hearing would lack the capacity to set aside the findings and determinations of the first informal hearing. Hence, there may be two sets of inconsistent findings and perhaps determinations and, if the Board is right, and the power to conduct further informal hearings is capable of being exercised from time to time, there might be no end to the number of times that a further informal hearing could add to the pile of inconsistencies. I am unable to accept that Parliament intended to create that state of affairs in the regulation of the medical profession.
In face of the difficulties to which those problems give rise, counsel for the Board submitted that a distinction should be drawn between a case like the present in which there has been a finding that the practitioner has not engaged in unprofessional conduct (which the Board contends would not have any legal consequences), and a case in which there is a finding that the practitioner has engaged in unprofessional conduct (which the Board concedes would or may have legal consequences). In the Board’s submission, there is no reason why the Board should not order a second informal hearing in the first type of case even if it is to be concluded that the possibility of inconsistency means that it could not do so in the second type of case.
I do not find that submission persuasive either. The notion that a favourable finding is without legal effect is facile. It leaves out of account the effect on practitioner’s professional standing and the appointments which might be opened or foreclosed to him or her according to his or her professional standing. If a favourable finding can be replaced with a later unfavourable finding, it means that any practitioner who has undergone a favourable informal hearing is forever tarred with the brush of suspicion that the finding may one day be reversed. It also leaves out of account the effect on the practitioner’s professional indemnity arrangements; and it is to be noted that they would not necessarily be limited to the practitioner. For quite apart from the level of premiums which a practitioner may be required to pay once it is perceived that a finding is capable of being re-opened at any time, it is not difficult to suppose that some underwriters could seek to deny or reduce liability on the basis that the risk was written in ignorance of the unprofessional conduct later disclosed by the finding of the second hearing.
The notion that a favourable finding is without legal effect also leaves out of account the effect on innocent third parties. In the scheme of things, they could well be public or charitable institutions that have appointed a practitioner or entered into some other form of professional arrangement with the practitioner on the faith of a favourable finding and are later faced with a contrary finding from a second or subsequent hearing. It raises the spectre of arrangements of that kind being re-opened, possibly years after the event, on the basis that a previous favourable finding is later replaced by one which is unfavourable. It opens to question whether such appointors might be liable to others for having selected a practitioner who, as the results of the second hearing disclose, had engaged in unprofessional conduct.
Moreover, and perhaps more importantly, if it were right that the Board had power to conduct a further hearing in a case where the finding of the first hearing was favourable to the practitioner, there is no discernable basis to conclude that it would not also have the power to conduct a further hearing in a case where the finding was adverse to the practitioner. Potentially, therefore, arrangements, including arrangements for the compensation of persons for the effects of treatment ruled to have been unprofessional, would be open to be reversed when later it was found by a second or subsequent hearing that the treatment had not been unprofessional. As Kirby, J. put it in the different context of Bhardwaj:[33]
“If a decision unfavourable to the [notifier] could be ignored or treated as provisional by the [Board, the notifier, the practitioner] or anyone else on the ground that it is not really a “decision” or is of no legal effect, a favourable decision could equally be left uncertain. The result would be confusion or even chaos in the administration of the Act.”
I am unable to accept that such an outcome was intended.
[33](2002) 209 CLR at 637 [122], in dissent but not in point of principle.
Fifthly and finally, the fundamental premise of the Board’s argument is that, because the Board’s function is to protect the public, and because a mistake in the conduct of a preliminary hearing could result in prejudice to the public, it must be assumed that Parliament intended the Board to be able to correct such mistakes. On that basis it is argued that, since the Act does not give the Board a statutory right of appeal or review, Parliament must have intended the Board to be able to refer a matter to a second or further informal hearing and thereby, in effect, correct any mistakes in that fashion. So, it is contended, it must also be assumed that Parliament intended the Board to be able to refer a matter the subject of a formal hearing to a further formal hearing. In my view, however, there are two answers to that.
The first is that there are mechanisms for correction of errors. Although an informal hearing may not be litigation inter partes, and the notifier is not a party, the notifier is involved. Under s 39(d) of the Act the notifier must be served with notice of an informal hearing. Under s 57(4) of the Act, the Board must notify the notifier of the time and place of the hearing, of whether the notifier has any right to make submissions, and the findings and determinations of the panel, within 28 days of being made. Under s 56 of the Act, a person affected by a determination of a panel may apply for reasons for the determination, and authority establishes that, generally speaking, the family of a deceased are persons affected.[34] Under s 60(1)(d) a person affected has a right of appeal against a finding or determination made at a formal hearing. Admittedly, there is no such right of appeal in relation to a finding or determination of an informal hearing. But such a finding or determination is susceptible to judicial review at the instance of a person affected, for both jurisdictional error and non-jurisdictional error on the face of the record, under either the Administrative Law Act 1978 or by way of proceedings for an order in the nature of certiorari or quo warranto pursuant to Order 56 of Chapter 1 the Rules of Court. In short, therefore, to borrow again from the language of Kirby J in Bhardwaj:
“Other remedies, perfectly effective, exist in law…to cure any injustice. I dissent from the interpretation of the Act that effectively makes decisions of the [Panel], to which so many statutory consequences attach, provisional.”[35]
[34]Annetts v McCann (1990) 170 CLR 596.
[35]Ibid at 638.
The second answer is that, inasmuch as the Act does provide expressly for rights of appeal and review and expressly limits the times in which they may be activated, it implies that the Board does not have some overriding power to treat findings and determinations which are otherwise final and binding as being for ever provisional. The structure of Part 3 of the Act, and in particular the detailed provisions of it which identify the steps to be observed in referring a matter to an informal or informal hearing and the way in which panels are to go about making findings and determinations, bespeak a conclusion that such of those findings and determinations as do not involve jurisdictional error and which are not challenged in accordance with the Act or by way of judicial review within the time limits that apply are effective for all purposes notwithstanding they may involve reviewable error.[36] In such circumstances, I regard it is inappropriate to postulate a residual power in the Board to revoke earlier findings and determinations of a Panel made in formal compliance with the provisions of the Act or otherwise to withdraw from or retrieve it or ignore it. [37]
[36](2002) 209 CLR 597 at 614[50], per Gaudron and Gummow JJ.
[37](2002) 209 CLR 597 at 635.
The effect of s 25(7)
It turn then to deal with s 25(7) and the judge’s conclusion that it is a “stand alone power” which enables the Board to refer a matter to a further informal hearing despite that it has already been the subject of findings and determination by an informal hearing.
With respect, I agree with his Honour that the power conferred by s 25(7) is “stand alone” in the sense of being separate and different to the power conferred under s 39. Plainly, the Board does have power under s 25(7) to refer a matter directly to an informal hearing without proceeding via s 39. But of course the question here is not simply whether the Board has power to refer a matter to an informal hearing without first receiving notification under s 22. It is whether, having received a notification under s 22, and having referred it to an informal hearing in accordance with s 39, and the informal hearing panel having heard and determined the matter in accordance with s 42 and made a finding in accordance with s 43, there is power under s 25(7) to refer the matter to another informal hearing with the possible consequence of a different finding and determination.
For that purpose, the relevant inquiry is not so much one of whether the power conferred by s 25(7) stands alone in the sense of being capable of exercise without recourse to other powers, as it is of the extent to which the amplitude of the power is circumscribed by the existence of other powers. And to that extent the power conferred by s 25(7) is no more “stand alone” than any other provision of the Act. Each provision of the Act has to be read in the context of the act. More precisely, if a finding of an informal hearing panel instigated pursuant to s 39 of the Act is effective until challenged in accordance with the Act, or by way of judicial review - and for the reasons already given, I consider that it is - can it be that the power conferred under s 25(7) is broad enough to enable the finding in effect to be disregarded? Or is it implicitly limited to matters which have not previously been referred to a hearing and determined? In my view it is the latter.
As Gleeson, C.J. recently restated in Minister for Immigration and Multicultural Affairs v Nystrom,[38] where an apparently exhaustive provision or group of provisions deals with a subject matter in a fashion which is repugnant to another provision or group of provisions (in the sense that the two sets of provisions contain conflicting commands which cannot both be obeyed or produce irreconcilable legal rights or obligations), the incompatibility may imply that only the first provision or group of provisions was intended to apply.[39] Similarly, as his Honour observed, where one provision or group of provisions is directed with particularity to a subject matter and there is another provision or group of provisions which is of merely general application, the specificity of the former may imply that it was intended to prevail over the latter.[40] Consistently with that logic, which equates with the maxims expressum facit tacitum cessare[41] and generalia specialibus non derogant,[42] I consider that this Act is to be interpreted so as to avoid the inconsistency and uncertainty which would result if the Board had power under s 25(7) to revisit a finding of a panel under s 43. So interpreted, the effect of the Act is that, once s 39 has been invoked in respect of a matter and resulted in a preliminary hearing making a finding under s 43, there is no power under s 25(7) to refer the matter to a second hearing.
[38][2006] HCA 50 at [2].
[39]Ferdinands v Commissioner for Public Employment (2006) 80 ALJR 555; 224 ALR 238.
[40]Anthony Horden & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 8; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678; Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation (1980) 29 ALR 333 at 347.
[41]R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550, per Dixon J; Saraswati v The Queen (1991) 172 CLR 1 at 23, per McHugh J.
[42]Perpetual Executors and Trustees Assoc. of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 at 29.
Section 40 of the Interpretation of Legislation Act
In the course of the judge’s analysis of s 40 of the Interpretation of Legislation Act, his Honour referred to a number of decisions in which cognate provisions have been considered in other jurisdictions. One of those was the decision of the New South Wales Court of Appeal in Parkes Rural Distributors v Glasson[43] in which it was held that the effect of s 32 of the Interpretation Act 1897 (NSW) was that the power to issue a certificate under s 8(3) of the Petroleum Products Subsidy Act 1965 (NSW) could be exercised from time to time so as to add to, subtract from or reverse the result of a previous exercise of the power and, on that basis, that the issue of a new and different certificate revoked the previous certificate. On one view of the matter, Parkes suggests that an exercise of the power under s 25(7) of the Act to refer a matter to a second hearing has the effect of reversing the effect of previous exercise of power under s 39 and with it the results of the first hearing.
[43]24 November 1986.
As I see it, however, that is not so. Parkes was concerned with the question of whether the power to issue certificates from time to time under s 8(3) of the Petroleum Products Subsidy Act carried with it power to rescind and replace previous exercises of the power to issue certificates under s 8(3). In point of principle that is a different question to whether the power to act from time to time under one section of an act (such as s 25(7) of the Act) carries with power to rescind and replace previous exercises of another power under another provision of the Act (such as s 39). Nothing in Parkes suggests that the power to exercise a statutory power from time to time imports a power to rescind and replace previous exercises of a different statutory power.
I also respectfully take leave to doubt some of the reasoning in Parkes; for as appears from the reasons for judgment of Glass JA, with whom Samuels and Priestly JJA agreed, the decision was to some extent based on the idea, which was said to be supported by Lawrie v Lees,[44] that the ability conferred by s 8(3) to exercise a power “from time to time” implicitly imported a power to add to, subtract from or reverse the result of a previous exercise of the power to issue a certificate “from time to time” pursuant to s 8(3). As Glass JA put it:
“… It has been held that a power exercisable from time to time 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. In other words the donee of such a power is never functus officio. Accordingly the existence of the first certificate does not render void a second certificate issued in lieu of it…”
[44](1881) 7 App. Cas. 19.
While, however, it is true that Lawrie v Lees did hold that a power exercisable from time to time may be so exercised as to add to, subtract from or reverse the result of the previous exercise of the power, it needs to be understood that the case was concerned with the power of the Lord Chancellor under s 3 of Sir H. Meux’s Settled Estate Act 1863 to make orders “ from time to time” for the purposes of administering the affairs of the partnership of which Sir Henry Meux was a member before he became a lunatic. With respect, it is drawing a long bow to conclude that, because the Lord Chancellor’s power to make orders from time to time for the purposes of the administration of a lunatic’s estate imported power to add to vary or revoke a previous order, the effect of s 32 of the Interpretation Act was to enable to the repository of the power to issue certificates under a provision like s 8(3) of the Petroleum Products Subsidy Act to revoke and replace an issued certificate. The decisions in Re 56 Denton Road, Twickenham, Walter Construction Group Limited v Fair Trading Administration Corporation, Export Development Grants Board v EMI (Australia) Ltd, and Firearm Distributors v Carson all suggest the contrary.
Furthermore, and assuming for the sake of argument that a power to make an order “from time to time” does import an ability thereby to add to, subtract from or reverse altogether a previous order made in exercise of the power, nothing in Lawrie v Lees suggests that it includes a power to reverse matters and things done pursuant to a previous order as opposed to the order itself. The question in issue in Lawrie v Lees was whether the Lord Chancellor could make an order authorising the lunatic’s committees in lunacy from time to time to execute leases on behalf of the lunatic or whether his Lordship was bound to make a separate order upon every occasion that a lease came to be entered into. Unsurprisingly perhaps, it was held that he was empowered to make compendious orders authorising the committees to execute leases on behalf of the lunatic whenever the leases were approved of by other partners. But no one suggests that the Lord Chancellor’s power to authorise entry into leases from time to time, even allowing that it extended to revoking previous exercises of the power, enabled his Lordship to rescind leases entered into by the committee in accordance with a previous order.
So too here. Even if s 40 of the Interpretation of Legislation Act enables the Board to exercise from time to time the power conferred by s 25(7) and thereby to add to, subtract from, or reverse previous exercises of the power, it says nothing to suggest that the Board could thereby annihilate the effects of a finding made by a panel in the determination of a hearing undertaken pursuant to a previous exercise of the power conferred by s 25(7) and a fortiori nothing to suggest that the Board could thereby annihilate a finding made by a panel in the determination of a hearing undertaken pursuant to referral made by the Board in exercise of the power conferred by s 39.
Res judicata and issue estoppel
Finally, I should mention that counsel for Dr Kabourakis placed a degree of emphasis on the doctrines of res judicata and issue estoppel. They submitted that both applied to the finding of the first informal hearing that Dr Kabourakis had not engaged in unprofessional conduct, with the result that the finding constituted a determination in rem good against the world at large.
In my view, however, it is unnecessary to express a concluded view about that. Neither doctrine could apply in this case unless the effect of the Act were that the finding of the first informal hearing was final and binding, and equally, if that be the effect of the Act, it must follow that the power conferred by s 25(7) does not extend to rescinding or revoking the finding. Since, as I interpret the Act, its effect is that the panel’s finding was final and binding, res judicata and issue estoppel can add nothing to the utility of the analysis.
It is sufficient to determine this appeal that, upon the proper construction of the Act, and in the absence of jurisdictional error, the Board does not have power under power under s 25(7) or otherwise to refer the matter the subject of the informal hearing panel’s finding to a second hearing.
Conclusion
In the result, I consider that appeal should be allowed. The judgment below should be set aside and in lieu thereof there should be a declaration to the effect which is sought.
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