Kabourakis v Medical Practitioners Board of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5657 of 2005

DR FRANK KABOURAKIS	Plaintiff
v
THE MEDICAL PRACTITIONERS BOARD OF VICTORIA	Defendant

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JUDGE:	GILLARD J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 and 25 October 2005
DATE OF JUDGMENT:	20 December 2005
CASE MAY BE CITED AS:	Kabourakis v Medical Practitioners Board of Victoria
MEDIUM NEUTRAL CITATION:	[2005] VSC 493

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JUDICIAL REVIEW – Decision by Medical Board to hold another hearing into a notification – First hearing exonerated practitioner – Board mistakenly failed to place all relevant material before panel – Decision to hold another hearing with all relevant material – Whether Board had authority – Effect of s.25(7) of Medical Practice Act 1994 – Board not functus officio – s.40 of Interpretation of Legislation Act 1984 applied – Res judicata did not apply – No finding on a lis between parties – Second hearing not an abuse of process.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Cavanough Q.C. with Mr S. Moloney	J. Ball & Sons
For the Defendant	Mr R.R.S. Tracey Q.C. with Mr S. Donaghue	Minter Ellison

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

Complaint and Investigation........................................................................................................... 2

Judicial Review................................................................................................................................... 4

The Board, its Functions and Investigation.................................................................................. 8

A. Power of Board to hold second informal hearing............................................................. 11
B. Statutory authority or power?.............................................................................................. 12
C. Functus officio and s.40 – Interpretation of Legislation Act 1984......................................... 18
D. Res Judicata............................................................................................................................. 30
E. Abuse of power....................................................................................................................... 35

Conclusion......................................................................................................................................... 36

HIS HONOUR:

This is the return of a summons filed in a proceeding instituted by originating motion, seeking judicial review of a decision made by a statutory body to hold an informal hearing into the professional conduct of the plaintiff. The jurisdiction invoked by the motion is the common law prerogative writ jurisdiction, which supervises the decision making process of inferior bodies including statutory bodies in order to ensure they comply with the law in exercising their authority and powers when reaching a decision.

Parties

The plaintiff, Dr Frank Kabourakis (“Dr Kabourakis”), is and was at all relevant times a medical practitioner registered pursuant to the Medical Practice Act 1994 (Vic) (“the Act”).

The defendant, the Medical Practitioners Board of Victoria (“the Board”), is a body established by s.65(1) of the Act. It is a body corporate which may be sued in its corporate name. Its powers, functions and consultation requirements are set out in s.66 of the Act. They include functions of regulating the standards of medical practice in the public interest, investigating the professional conduct of registered medical practitioners, and imposing sanctions where necessary. See s.66(1)(ab) and (c). The Board comprises 12 members nominated by the Minister and appointed by the Governor‑in‑Council. Being a statutory body, its jurisdiction, authority, powers and obligations are to be found within the four corners of the Act that created it.

Complaint and Investigation

Between 27 May and 24 June 2002, Dr Kabourakis treated a patient for pain management following an industrial accident which occurred in November 1999. The Doctor prescribed a number of drugs. The patient died as a result of inhalation of vomit following an overdose of drugs. On 17 February 2003, the Board was notified by the patient’s mother (“the notifier – see s.3”) complaining about the professional conduct of Dr Kabourakis. The Board commenced a preliminary investigation under s.25 as it was bound to do, having been satisfied that the notification was not to be dealt with by the Health Services Commissioner and that the notification was not frivolous or vexatious. The Board requested Dr Kabourakis to respond to the matters raised by the notifier and to provide a copy of the medical records relating to the patient. The Doctor responded. During the period between 11 June and 24 September 2003 the Board conducted a preliminary investigation. Having carried out the preliminary investigation, the Board determined that an informal hearing would be held into the professional conduct of Dr Kabourakis. The Board, as required by s.39, appointed a panel to hold an informal hearing into the allegations. On 6 October 2003, the Board gave the Doctor a written notice pursuant to s.39, which set out the information prescribed by s.41. The allegations that were made against Dr Kabourakis and investigated at the informal hearing were his failure to seek and obtain important information about the history and treatment of the patient in the past, failure to institute an appropriate management plan taking into account the patient’s background, inappropriate prescription of large doses of morphine to a patient who was vulnerable because of age and his longstanding painful condition, and provision of prescription drugs in a haphazard and excessive manner. On 30 October 2003, the panel conducted an informal hearing into the professional conduct of Dr Kabourakis and on 13 November 2003, it made a finding pursuant to s.43(1)(b) that Dr Kabourakis had not engaged in unprofessional conduct. The effect of the finding was that it came into operation on the date the determination was made.[1]
[1]See s.54(1).

The notifier was dissatisfied with the finding and approached the Victorian Ombudsman. As a result of responding to matters raised by the Victorian Ombudsman, the Board in September 2004 became aware that by reason of an administrative oversight, the panel which conducted the informal hearing had not been provided with a written expert opinion of a doctor that had been obtained by the Board. In a letter dated 7 August 2003, Dr J. Summons had been requested by the Board to provide an expert opinion in relation to the conduct of Dr Kabourakis and in particular the prescription of a variety of drugs. By letter dated 12 August 2003, Dr Summons responded and opined that the treatment should have included obtaining information from the patient’s previous doctor, obtaining an opinion from the treating orthopaedic surgeon, and making contact with the Drug and Poisons Unit of the Department of Human Services. He also stated that it would appear that the progressive increase in one of the drugs was unwise until the above matters had been addressed. This letter was not before the panel. It raised matters which in my opinion the panel would have been duty bound to take into account, and raised questions concerning the professional conduct of the doctor. It was evidence that had to be considered and to which the doctor should have been given the opportunity to respond. On 18 November 2004, the Board considered what should be done and decided to conduct a second informal hearing. The decision made by the Board was made pursuant to s.25(7) of the Act, which gives the Board the power of its own motion to determine to conduct either an informal or formal hearing into the professional conduct of a medical practitioner. The minutes of the meeting held on 18 November 2004 record the Board’s determination to conduct an informal hearing pursuant to s.25(7) of the Act. The Board by letter dated 14 January 2005 informed Dr Kabourakis of those facts and enclosed a copy of the report of Dr Summons for his information.

By letter dated 2 February 2005, the Board informed Dr Kabourakis that it had determined to conduct an informal hearing into allegations made by the notifier regarding his professional conduct. The notice contained the information required by s.41.

Judicial Review

On 21 April 2005, Dr Kabourakis, through his solicitors, instituted this proceeding by originating motion. His grounds can be briefly stated. He has been the subject of an investigation and a finding has been made. It has been concluded. He was exonerated of any professional misconduct. The Board does not have power to ignore the finding and start again. It is put on his behalf that he should not be subject to another investigation. A complaint against a professional person is distressing and time consuming, and there has to be an end to any investigation. His counsel pray in aid the doctrines of functus officio, that is, having discharged the duty to investigate and having made a determination, the Board did not have the power to ignore what had occurred and start again; res judicata, that is, a decision is conclusive until reversed; abuse of process and double jeopardy; and the importance of finality in litigation.

On the other hand, there is another side to what has occurred. The notifier has been deprived of a full, careful and complete investigation. The notifier feels cheated. It is important that justice be done. Justice is a two-way street. This is sometimes overlooked, especially when dealing with persons the subject of a charge. The notifier is aggrieved by what has occurred and seeks a proper, full, careful and complete investigation. On a new investigation the doctor will be given every opportunity to answer the allegations. If he is guilty of any misconduct, then the statutory investigation must be concluded according to law. All of these arguments have substance.

Dr Kabourakis seeks an order in the nature of prohibition restraining the Board from proceeding with the informal hearing before a panel. On proper analysis his relief, if successful, is in the form of a certiorari‑type order quashing the decision by the Board to hold another informal hearing, and an order prohibiting the Board from giving effect to its decision. This Court has jurisdiction to grant prerogative writ‑type orders in respect to statutory bodies. The jurisdiction is subject to the procedural rules set out in Order 56 of the Rules of Court. The jurisdiction of the Court to review decisions and orders of a statutory body is limited. It is supervisory and does not entitle the Court to canvass matters that it would on an appeal. The common law jurisdiction is different to an appeal. An appeal is a creature of statute. See Fox v Percy.[2]
[2](2003) 214 CLR 118 at p.124.

Judicial review is concerned with the authority of the statutory body and the legality of what it has done or seeks to do and is not concerned with the merits of the case. This is to be contrasted with an appeal where the question usually is whether the original decision was right or wrong, whereas the question on a judicial review is whether the decision is made within authority and in accordance with the law. Judicial review is not concerned with whether the decision was fair or correct.

Order 56 is concerned with procedure. It abolishes the remedies in the nature of the old prerogative writs but nevertheless preserves the jurisdiction of the Court to make prerogative writ‑type orders. It is clear that the rules do not affect the common law jurisdiction of the Court, and it is equally clear that this Court has jurisdiction to make orders in the form similar to the old prerogative writs of certiorari and prohibition, namely, setting aside a decision to carry out an investigation and restraining a statutory body from proceeding when it does not have jurisdiction to do so.

Rule 56.02 deals with the time for commencement of a judicial review proceeding. By reason of paragraph 1, a proceeding must be commenced within 60 days after the date when the grounds for the grant of the relief or remedy claimed first arose. This present proceeding is out of time. Dr Kabourakis was advised on 2 February 2005 that the Board proposed to hold another informal hearing into his conduct. This proceeding was not commenced until 21 April 2005 and is outside the 60-day period. The Court has power under Rule 56.02(3) to extend time, but it is not permitted to extend time “except in special circumstances”. The Court raised the issue with counsel. The Board did not raise the point and it does not seek to rely upon it. It is necessary to state further facts. On 16 February 2005, the Doctor’s solicitors wrote to the Board asserting that the Board was functus officio and hence could not commence another informal hearing into the matters raised. Evidently the Board put on hold the informal hearing scheduled for 24 February 2005 and, after considering the matters raised by the Doctor’s solicitors, determined to proceed. The doctor’s solicitors were informed of this by letter dated 24 March 2005. On 4 April 2005, the Doctor’s solicitors received another notice concerning the second informal hearing. As part of the period of 60 days was taken up with considering the question of whether the Board had power to hold a second informal hearing, and because the Board does not seek to argue against an extension of time, in my view there are special circumstances. I am prepared to extend time to bring the proceeding to 22 April 2005.

The scope of the common law jurisdiction of this Court was discussed by the High Court in Craig v South Australia.[3] As the Court held, the jurisdiction enables the quashing of an impugned decision on one or more of a number of distinct established grounds: most importantly, jurisdictional error, failing to observe some applicable requirement of procedural fairness, or fraud, and error of law on the face of the record. The confined nature of the jurisdiction was stated by Brennan J in Attorney‑General (NSW) v Quin[4] where his Honour said:

“Judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful. To say that the doctrine of ultra vires defines the scope of judicial review is too restrictive … The essential warrant for judicial intervention is the declaration and enforcing of the law effecting the extent and exercise of power.”

[3](1994) 184 CLR 163 at 175-6..

[4](1990) 170 CLR 1 at 35.

His Honour then went on to say:

“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. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative justice or error. 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.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of the power and the legality of its exercise.”
(Emphasis added).

Counsel on behalf of Dr Kabourakis submits that the Board does not have the power to hold a further informal hearing, having already held a hearing and accepted the decision of the panel. The issue is a narrow one. It comes down to this: does the Board have authority under the Act to hold a further informal hearing into allegations made against a registered medical practitioner after it has established a panel which has carried out an informal hearing and made a determination which was accepted by the Board? The reason for the further informal hearing is that the Board failed to place all relevant information before the panel on the first hearing. This Court is not concerned with the merits of the allegations made. However, the Court has read the letter requesting a report from Dr Summons and his report and in my opinion his report is relevant to the allegations made and is of substance.

The Board, its Functions and Investigation

The Board is a statutory body. Its jurisdiction, authority, powers and obligations are to be found within the four corners of the Act which created it. The Board may only do what Parliament has expressly authorised it to do and “whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised … “.[5] It follows that what the Board can do and what it cannot do is a question of interpretation of the statute. The rules of statutory interpretation are important.
[5]See Attorney-General v Great Eastern Railway Company (1880) 5App Cas 473 at 478.

The purposes of the Act are set out in s.1. The main purposes of the Act, inter alia, are to protect the public by providing for investigations into the professional conduct, performance and ability to practise of registered medical practitioners, to establish the Board and to provide for other related matters.

Division 1 of Part 6 deals with the Board. Section 66 deals with the powers and functions of the Board. The Board has the functions, inter alia, of regulating the standards of medical practice in the public interest, investigating the professional conduct, professional performance or ability to practise of practitioners, and imposing sanctions where necessary.[6] It also has the function of administering the Act.[7] Of the 12 members of the Board, nine must be registered medical practitioners.[8]
[6]See s.66(1)(ab) and (c).
[7]See s.66(1)(f).
[8]See s.67(2)(a).

Part 3 provides for investigations. By reason of s.22(1), a person may notify the Board about any matter relating to the practitioner if the person believes that the medical practitioner may have engaged in unprofessional conduct or that the practitioner’s professional performance may be unsatisfactory.[9] The deceased’s patient’s mother exercised that right in this case. If the Board is of the opinion that the notification is not a matter required to be dealt with by the Health Services Commissioner under s.23, and if it has not determined the notification to be frivolous or vexatious, the Board is bound to investigate the notification.[10]
[9]See s.22(1)(b) and (c).
[10]See s.25(1).

The first step in the investigation by the Board is that it must conduct a preliminary investigation into the notification.[11] The reason for the preliminary investigation is to determine whether or not to conduct an informal or formal hearing or whether or not performance review should be carried out.[12] The Board appointed a doctor to carry out the investigation. This appointment was made pursuant to s.25(5). This appointment delegates to the person appointed the Board’s power to conduct a preliminary examination other than its power to make determinations upon a preliminary investigation. Section 29 requires the investigator to give notice of the preliminary investigation to the Doctor.
[11]See s.25(2).
[12]See s.25(2).

Division 3A of Part 3 deals with the allegations of professional misconduct. Section 38K provides what is to occur on the completion of the preliminary investigation. Section 38K(1) provides that upon completing the preliminary investigation the investigator may make one of a number of recommendations. One of the recommendations is that “an informal or formal hearing be held into the matter”. The investigator recommended that there be an informal hearing into the matter. By reason of s.38K(2) it was then a question for the Board to determine whether or not to act on the recommendation of the investigator. It so determined and the Board appointed a panel to hold an informal hearing.

An informal hearing is less serious than a formal hearing, in that if an adverse finding is made against the practitioner there are less severe penalties – compare s.43(2) with 45A(2). The panel appointed to conduct an informal hearing may make a finding either that the practitioner has not engaged in unprofessional conduct or that the practitioner has engaged in unprofessional conduct “which is not of a serious nature”.[13] If the panel finds that the practitioner is guilty of unprofessional conduct which is not of a serious nature, the panel is authorised to make one or more of a number of determinations, namely, that the practitioner undergo counselling, undergo further education, and/or be cautioned or reprimanded.[14]
[13]See s.43(1).
[14]See s.43(2).

The panel for an informal hearing is to consist of not more than three persons who are members of the Board, and at least one of whom is a registered medical practitioner. Section 40(3) provides that a person is not entitled to be a member of the panel if the person has undertaken a preliminary investigation into the matter. Notice of the informal hearing must be given to the practitioner and the contents of the notice are specified by s.41. Notice is also to be given to the notifier. Section 42 prescribes the conduct of an informal hearing, namely, that the panel must hear and determine the matter before it, that the practitioner is entitled to be present and make submissions but is not entitled to be represented, and that the proceedings must not be open to the public. Section 52 provides for the procedure at hearings. The panel is not bound by the rules of evidence, and is bound by the rules of natural justice. The proceeding must be conducted with little formality and technicality consistent with the requirements of the Act and the proper consideration of the matter.

The panel conducted an informal hearing on 30 October 2003. Dr Kabourakis was given the opportunity to be heard. The panel considered the allegations and on 13 November 2003 found, pursuant to s.43(1)(b), that Dr Kabourakis had not engaged in unprofessional conduct. Section 54 deals with the effect of the finding. It provides:

“54. Determinations
(1)A determination made by a panel on a hearing comes into operation on its making or at any later time stated in the determination.
(2)A determination of a panel is to have effect as if it were a determination of the Board.
(3)… “

The finding was made on 13 November 2003 and came into operation on that day. What is meant by “a determination” is a moot point. I will return to the issue later.

Part 4 gives the right to any person whose interests are affected by a relevant decision, finding or determination to apply to the Victorian Civil and Administrative Tribunal for a review, but it was not open to the notifier in this case to have reviewed a finding by a panel at an informal hearing that the medical practitioner had not engaged in unprofessional conduct.

A. Power of Board to hold second informal hearing

There is no express provision in the Act allowing the Board to ignore or set aside a finding made by a panel at an informal hearing, and to establish a new panel to hear the same allegations by way of another informal hearing. The plaintiff’s submission was that the Board had no power or authority to establish a second panel to conduct a second informal hearing into allegations which had already been the subject of an informal hearing resulting in a finding by a panel. The plaintiff prayed in aid of the construction of the Act, the principle of functus officio. It was further submitted that if the Court came to the view that there was power to hold a second informal hearing, the doctrine of res judicata applied, or alternatively it would be an abuse of the Board’s power for it to hold another informal hearing because, inter alia, it would expose the Doctor to double jeopardy. The Board for its part submitted that the Act expressly gave the power to the Board to appoint a second panel. Further, it was necessary in discharging its statutory duty to protect the public and maintain the integrity and standards of the profession that any complaint concerning the conduct of a medical practitioner should be properly and fully investigated. The Board submitted that the doctrine of functus officio had no relevant application and that s.25(7) of the Act made it clear that it did have express power to hold a second informal hearing. In addition, s.40 of the Interpretation of Legislation Act 1984 (Vic) (“the Interpretation Act”) implied into the Act a power to exercise a power or duty as occasion required its exercise.

B. Statutory authority or power?

The Board submits that s.25(7) gave it the authority to conduct an informal hearing of its own motion and that it could therefore conduct another informal hearing despite one having already been conducted and concluded. There are a number of avenues under the Act for notification and commencement of investigations. First, a person may notify the Board of any matter relating to a registered medical practitioner which relates to the professional conduct of the medical practitioner.[15] This was what occurred in the present matter. The deceased patient’s mother notified the Board. The Board may deal with a health records complaint from the Health Services Commissioner and if that is done it is to be treated as if it were a notification under the Act. The Board is obliged to investigate a notification made under s.22. I have already traced what happens when a notification is made under s.22, and what happened in the present matter.
[15]See s.22.

In addition, the Board may – and it is clearly discretionary – of its own motion determine to conduct a preliminary investigation into any matter that is set out in sub-s.(4) of s.25. This relates to the health of a medical practitioner, which includes incapacity or alcohol or drug dependency, or the ability of a medical student to have direct patient contact in the course of study.[16] Further, if the Board believes that the professional performance of a practitioner may be unsatisfactory, the Board may conduct a preliminary investigation into the matter by appointing a medical practitioner to conduct it. In addition, the Board has power under s.25(6) to conduct a preliminary investigation (by appointing a particular person or sub‑committee) if it believes that a practitioner may have engaged in unprofessional conduct. These various statutory provisions each deal with a separate basis for conducting a preliminary investigation. The outcome of a preliminary investigation is dealt with by s.38K. The investigating body, whether it be an individual or a committee, in its discretion may make one of a number of recommendations. One of the recommendations is that the matter not proceed further, and another is that an informal or formal hearing be held. Following on from a preliminary investigation recommendation, the Board is bound to determine whether or not to act on the recommendation of the investigator. Section 39 deals with a determination made by the Board that an informal hearing be held into the professional conduct of the practitioner. It is clear from the foregoing that a number of avenues lead to the conduct of a preliminary investigation. The investigating body must make a recommendation and the Board must determine whether it should act upon it. Another avenue open to the Board is found in s.25(7).
[16]See s.25(3) and (4).

Section 25 deals with the various obligations which rest upon the Board to investigate a complaint, and the various powers given to the Board with respect to such a complaint. The section may be summarised as follows:

·    The Board must invest a notification made under s.22 unless it is to be dealt with by the Health Services Commissioner or is frivolous or vexatious.[17]
·    In order to determine whether it is necessary to conduct an informal or formal hearing or a performance review, the Board must conduct a preliminary investigation into a notification.[18]
·    The Board of its own motion may determine to conduct a preliminary investigation into any matter stated in sub-s.(4).[19]
·    The matters referred to in sub-s.(4) relate to the ability of a medical practitioner to practise because of some physical or mental health reason, any incapacity or that the practitioner is an alcohol or drug dependent. In addition, the same powers are given in respect to a medical student concerning direct patient contact.[20]
·    If the Board believes the professional performance may be unsatisfactory, it may appoint a medical practitioner to conduct a preliminary examination.[21]
·    If the Board believes the practitioner may have engaged in unprofessional conduct the Board may appoint one of a number of persons to conduct a preliminary investigation.[22]

[17]See s.25(1).

[18]See s.25(2).

[19]See s.25(3).

[20]See s.25(4).

[21]See s.25(5).

[22]See s.25(6).

The Board also has power to conduct of its own motion different forms of hearing. The power is found in s.25(7). It provides:

“25. Commencement of investigations by the Board
(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 25(7) clearly gives the Board power to determine of its own motion whether or not to, inter alia, hold an informal hearing into the professional conduct of a practitioner. This power is exercisable whether or not there has been a preliminary investigation. It is a power that is separate and distinct from the obligation resting on the Board in respect of a notification to the Board of a belief by a person that a medical practitioner has engaged in unprofessional conduct, or that the practitioner’s performance is unsatisfactory[23], leading to a preliminary investigation, recommendation[24] and determination by the Board to accept a recommendation and hold a hearing. This sub-section gives an additional power to be exercised by the Board of its own motion, irrespective of whether there has been a preliminary investigation. Standing alone, it clearly empowers the Board to determine to hold an informal hearing. This can be exercised even after a preliminary investigation. The outcome of the latter resulting in a recommendation obliges the Board to determine whether or not to act on the recommendation. In my opinion, it is clear that having made the determination, the Board may of its own motion determine to conduct a hearing even if contrary to the recommendation. In my opinion, there is nothing in the Act that excludes this power from operation because an informal hearing has taken place and a finding has been made which in the circumstances was accepted by the Board. The power in s.25(7) is a stand alone power which the Board may exercise of its own motion.
[23]See s.22(1).
[24]See s.38(1).

There is no provision in the Act which precludes the Board from exercising the power given in s.25(7) after it has held an informal hearing which has made a finding pursuant to s.43. Counsel for Dr Kabourakis submitted that a consideration of the Act showed that it was the intention of Parliament that once an informal panel had made a finding that the practitioner had not engaged in unprofessional conduct, the Board was not able thereafter to hold a hearing into the original notification. In considering these submissions, the Court must take into account one of the main purposes of the Act, namely, “to protect the public by providing for the registration of medical practitioners and investigations into the professional conduct, professional performance and ability to practise of medical practitioners”.[25] The Board has the function of regulating the standards of medical practice in the public interest and an obligation to investigate the professional conduct of medical practitioners.[26] It is not difficult to think of a situation where a notification made against a medical practitioner is investigated and a finding made by a panel exonerating the medical practitioner, and then further evidence is elicited which shows that to permit the medical practitioner to thereafter practice would be exposing members of the public to danger and would be contrary to the public interest.
[25]See s.1(a).
[26]See s.66(1).

Counsel drew attention to s.54, which provides that a determination of a panel is to have effect as if it was a determination of the Board.[27] However, Parliament has drawn a distinction between findings and determinations resulting from an informal hearing. Section 43(1) deals with the outcome of an informal hearing. The panel may make a finding. The finding may be either that the practitioner has engaged in unprofessional conduct which is not of a serious nature or that the practitioner has not engaged in unprofessional conduct. That is a finding, not a determination.[28] Section 43(2) provides for the situation where the finding is that the practitioner has engaged in unprofessional conduct. The panel is then required to make a determination. Section 56 requires the panel to give reasons for a determination but does not oblige the panel to give reasons for its findings. It would follow that if it made a determination which is a form of penalty then the medical practitioner has every right to know why. In those circumstances reasons would be given. On the other hand, if the finding is that he has not engaged in unprofessional conduct then there is no obligation to give reasons. Section 56(2) gives a right to a person affected by a determination of a panel to apply for reasons. In my opinion, the word “determination” in that context would oblige the panel to give reasons of a finding. But in my opinion s.54(2) is dealing with a determination of the panel within the meaning of s.43(1).
[27]See s.54(2).
[28]See s.43(1).

These provisions, in my opinion, do not lead to the conclusion that it was the intention of Parliament that the Board could not hold a further informal hearing.

Counsel for Dr Kabourakis also referred to s.40(3), which disentitles any person to be a member of a panel if the person has undertaken a preliminary investigation. The same disqualification applies to persons sitting on a panel for a formal hearing.[29] It was submitted that since there was no provision made to disqualify a person from being a member of a panel if that person had already sat on an informal hearing panel, this omission would lead to a conclusion that Parliament did not intend that the Board could hold another informal hearing into the same notification. However, in my view, any person who had sat on a previous occasion could not sit because the panel is bound by the rules of natural justice.[30]
[29]See s.47(3).
[30]See R v Criminal Injuries Board ex parte A [1999] 2 AC 330 at 345.

I do not find any legislative intention in the provisions of the Act which leads to the conclusion that Parliament intended that once an informal hearing had taken place and a finding had been made, it was not open to the Board to conduct another informal hearing into the same notification where evidence was available but was not given to the first panel. Indeed, there are good policy reasons why the Parliament would not preclude the Board from further investigating a medical practitioner even though findings had been made in relation to a particular complaint. I refer to paragraph 33 of these reasons. However, that is not the end of the matter.

It was submitted on behalf of Dr Kabourakis that there were rules of law which precluded the Board from holding another informal hearing into the notification earlier dealt with, namely, the functus officio rule, res judicata, abuse of power and double jeopardy. It is convenient to consider the application of the functus officio rule with the contention of the Board that s.40 of the Interpretation Act applies to its powers and duties under the Medical Practice Act 1994. It was submitted on behalf of the Board that s.40 of the Interpretation Act applied and enabled the Board to exercise a power from time to time as the occasion required. It was further submitted that this enabled the Board to hold another informal hearing. The history of the provision demonstrates that it was enacted to overcome the inflexibility occasioned by the strict application of the doctrine of functus officio.

C. Functus officio and s.40 – Interpretation of Legislation Act 1984

Section 40 provides:

“40. Exercise of powers and performance of duties
Unless the contrary intention appears, where an act or subordinate instrument confers a power or imposes a duty, the power may be exercised and the duty shall be performed –
(a)from time to time as the occasion requires; and
(b)if conferred or imposed on the holder of an office or position of such, by the person for the time being holding, acting in or performing the duties of the office or position.”

This section was introduced into Victorian law by s.17 of the Acts Interpretation Act 1890. It was taken from s.32 of the English The Interpretation Act 1889.

Because of a submission put on behalf of Dr Kabourakis which referred to s.41A of the latest act the Interpretation of Legislation Act 1984, it is necessary to set out in full s.17 of the 1889 Act. It provided:

“17(1)Where an Act passed after the commencement of this Act confers a power or imposes a duty, then unless the contrary intention appears the power may be exercised and the duty shall be performed from time to time as occasion requires.
(2)Where an Act passed after the commencement of this Act confers a power or imposes a duty on the holder of an office as such, then unless the contrary intention appears the power may be exercised and the duty shall be performed by the holder for the time being of the office.
(3)Where an Act passed after the commencement of this Act confers a power to make any rules, regulations or by-laws, the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like consent and conditions (if any) to rescind, revoke, amend or vary the rules, regulations or by-laws.”

Section 41A deals with the power in an Act or a subordinate instrument to make an instrument, including the power to revoke or amend. It is similar in terms to the original s.17(3). It was submitted that s.41A empowers a body which has made, issued or granted an instrument to repeal, revoke, rescind, amend, alter or vary the instrument made in the exercise of that power unless a contrary intention appears. Counsel for Dr Kabourakis emphasised the width of the power given in s.41A and in particular the power to repeal or revoke what had already taken place. They contrasted that with the wording of s.40. It was submitted that s.40 was not expressed in such wide language and accordingly should be confined to an exercise of power which did not undo what had occurred in the past. I do not accept that submission. The wording of s.41A in my opinion does not qualify the provisions of s.40. Section 41A overcomes the principle of law which held that a rule‑making authority was functus officio on the exercise of its power to make a rule and accordingly was not authorised thereafter to rescind or vary in any way the original rule. It was to overcome this principle that s.17(3) was passed in 1890.

The section is the same as the English Act of 1889.[31]
[31]See s.32.

One thing that can be said is that s.32 of the English Act and s.40 of our Act have been overlooked in the past and have been rarely used. It was submitted on behalf of the Board that s.40 empowered the Board to do what it is has done. That is, it has the power and the duty to properly and carefully consider a notification of professional misconduct and, if the investigation has not been properly carried out, it does have the power to reconsider the matter from time to time because in all the circumstances the occasion required it

Our s.40 is the same as the English Act of 1889. However, there has been a slight change to the English legislation, now s.12(1) of the Interpretation Act 1978. In my view the slight change in the words does not change its effect and application. As an example of where the provision has been overlooked, I refer to R v Clerkennell Stipendiary Magistrate ex parte Mays.[32] This is clear from the observations made in In re Wilson.[33]
[32][1975] 1 WLR 52.
[33][1985] AC 750 at 759 per Lord Roskill and at p.760 per Lord Bridge.

The question arises, when does s.40 apply to an Act of Parliament? The section implies the provision and the power into every Act, unless there is a contrary intention. If the section applies, it means that if the enactment contains a power or duty the power may be exercised and the duty performed from time to time as the occasion required. Does the section have such a wide application? If it does, it goes a long way to nullifying the operation of the functus officio rule.

The primary source of the intention of Parliament is the words of the enactment construed in their normal and natural meaning. The context including the enactment as a whole must be considered in determining what the Parliament’s intention was. A full analysis of the enactment may qualify the normal meaning of the words. In addition the modern approach to interpretation requires the Court to determine a construction that promotes the purpose or object underlying the Act.[34] Applying those principles, s.40 applies to the Board’s duties and powers, unless there is a contrary intention.
[34]See s.35(a) of the Interpretation of Legislation Act.

The provision was enacted to overcome the functus officio rule, that is, that once a person or body has discharged a statutory power or duty by exercising it, the person or body has no authority thereafter to embark upon the exercise again. It is a rule that has been applied for well over 200 years. It was applied with particular rigour to the effect upon an arbitrator’s powers when an award was made.[35] It has also been applied with rigour in respect to what a magistrate or justices of the peace may do after pronouncing a decision. A strict application of the rule can produce results which defy common sense and reflect badly upon the legal system. In Mordue v Palmer, an arbitrator signed his award and then it was ascertained that there was an error in it because of a mistake made by a clerk in copying the draft. The arbitrator, adopting a pragmatic approach, corrected the error and signed a fresh award. Despite the good sense of Bacon V‑C who was prepared to give effect to what the arbitrator did, on appeal the Court said that the second award was a nullity. Some of the cases in relation to the powers are of justices sitting in a local court also show a rigorous application of a principle that sometimes leads to absurd results.[36] It was refreshing to see a more realistic approach taken in England in the recent decision of Steward v DPP.[37] In a modern setting, a strict application of the rule to statutory bodies exercising powers and authority sometimes leads to absurd results, and the rule should be looked at to provide far greater flexibility. The principle that if a decision is made by a statutory body, which was clearly made in error as a result of some obvious mistake, it is an offence to common sense to suggest that the only avenue open to correct the error is to appeal, state a case, or seek judicial review. The doctrine should be qualified to enable a decision maker or legislative authority to correct an obvious error by re‑visiting the process. The principle does not apply if the person or body never performed the duty or power at all. Further, it is not an inflexible rule. It does depend on the statutory provisions concerning the power or duty. As was said by Romer LJ in Davies v Howe Bridge Spinner Co Ltd:[38]

“First point … was that the medical referee having given a decision which everybody agrees is no decision at all, is functus officio. I can only say this on that point, that I entirely share the difficulty of Slesser LJ in understanding how it can be said that a person is functus officio when he has never performed his duty at all.”

[35]See Ward v Dean (1832) 3 B and Ad 234; 110 ER 87 and Mordue v Palmer (1870) 6 LR Ch App Cas 22.

[36]See R v Essex Justices ex parte Final [1963] 2 QB 816.

[37][2004] 1 WLR 592.

[38](1934) 27 BWCC 207 at 219.

In Minister for Immigration and Multicultural Affairsv Bhardwaj,[39] the High Court held that a decision made by a tribunal in circumstances where the decision was made without hearing the party affected because the latter could not attend, and where the tribunal overlooked a letter informing it of that fact, was a decision made without jurisdiction. It had failed to perform its decision-making process as required by the Act, and the decision was of no legal effect. It followed that the tribunal was empowered to hold a further hearing and make a decision, having heard the person affected by it. The functus officio rule simply did not apply because the tribunal had not performed its statutory duty.
[39](2002) 209 CLR 597.

The flexibility of the functus officio rule in respect of administrative decisions was discussed by members of the High Court in the Bhardwaj case. Gleeson CJ quoted with approval what Sopinka J said, speaking for the majority of the Supreme Court of Canada, in Chandler v Alberta Association of Architects.[40] Gaudron and Gummow JJ also referred with approval to what was stated. Sopinka J said:

“As a general rule, once (an administrative) tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances …
To this extent the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of the Court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law.”
(Emphasis added).

[40][1989] 2 Supreme Court Rules 848.

Gleeson CJ in Bhardwaj went on to say:[41]

“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 a powerful consideration. And the statutory scheme, including the conferring limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self‑correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision‑maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?”
(Emphases added).

[41]At 603.

The reference to what Lord Reid said in relation to revisiting an administrative decision was what his Lordship said in Ridge v Baldwin[42], where he stated:

“I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid.”

[42][1964] AC 40 at 79.

It follows that the operation of the functus officio rule where a body is making an administrative decision is not as strictly applied as it is in other areas. A rigid approach may be inconsistent with good administration and fairness. That is, fairness in the present context to both Dr Kabourakis and the notifier.

It is said that s.40 of the Interpretation of Legislation Act will overcome the full rigour of the rule and give the statutory body the opportunity to further exercise the power given to it. As I have found, 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.27(5) 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.

The conclusions do not depend upon the operation of s.40.

The mischief the section was enacted to overcome was the rigour of the application of the functus officio rule. In the fourth edition of Craies Statute Law (1907) the learned author[43] referred to the principle that if power is given to the Crown by statute for the purpose of something to be done, once the power has been exercised it is exhausted and cannot be exercised again. The learned author referred to the Union with Ireland Act (1800), which empowered the Crown to appoint by Royal Proclamation certain royal styles and titles. The power was exercised immediately after the passing of the Act in 1801 and, having been exercised, the power was exhausted. The author then went on to say:

“Therefore, when it was again in 1876 thought expedient to alter the Royal style, it was necessary to pass another Act of Parliament in order to enable this alteration to be made and the Royal Titles Act 1876 was accordingly passed. But this rule seems to have been to some extent, if not wholly, abrogated by the Interpretation Act 1889 s.32.”

[43]At p.251.

The provision was the same as the Victorian provision of 1890.

Of course the application of the section is subject to any contrary intention appearing in the particular Act which confers the power. In the first edition of Halsbury Laws of England,[44] reference was made to the English provision and in footnote (f), the learned author says:

“There was an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise.”

[44]Vol. 27, p.131.

The provision was referred to in Battersea Borough Council v County of London Electric Supply Co Ltd.[45] In that case the plaintiff sought an injunction to restrain the defendants from laying electric mains in a street within the plaintiff’s borough in order to connect two areas. There is no doubt that the defendants were authorised to supply the area with electric energy but an injunction was sought on the ground that the areas had already been connected. The argument was that once the power had been exercised it was not open to exercise it again. The Court of Appeal held that on a proper construction of the section, which empowered the company to do what it sought to do, it clearly had the right to make connections from time to time. This conclusion was reached on the proper construction of the Act. Couzens‑Hardy MR said:[46]

“I think, without attaching too much weight to the provisions of the Interpretation Act … this is a case in which, so far from there being any contrary intention, there was every reason to suppose that Parliament meant that connections might be made from time to time.”

[45][1913] 2 Ch 248.

[46]At p.256.

The Court did not apply the provisions of the Interpretation Act.

In the last two editions of Halsbury’s Laws of England, the learned authors refer to the particular mischief which the section overcame, namely, the inconvenience of having to pass another Act of Parliament if, because of changed circumstances, it was necessary to exercise the power again. Recently the House of Lords has applied the provision.

In the case of In Re Wilson,[47] the House was concerned with the power of justices to vary an order. The applicant appeared before justices for non‑payment of fines and, acting under an Act, the justices fixed a term of 60 days’ imprisonment but postponed the issue of a warrant on the condition that the applicant paid off the fines at ₤3 a week. The chairman told the applicant that if his circumstances changed, he should inform the Court so that a variation could be made. The applicant later approached the Court but was told by the clerk that by reason of a decision in 1975, the Court had no power to vary the conditions of postponement. Lord Roskill delivered the opinion of the House and he held that on a true construction of the section of the Act, since no contrary intention appeared, the powers given by the section could be exercised from time to time as the occasion demanded in accordance with s.12(1) of the Interpretation Act 1978. Section 12(1) of the 1978 Act is in similar terms to the provision of 1889. Accordingly the justices had the powers to make orders as often as the occasion required it. An earlier decision of a Divisional Court in 1975 held that the justices did not have the jurisdiction to make a further order but the Divisional Court had not been not apprised of the section. Lord Roskill, after referring to the section in the Interpretation of Legislation Act 1978, observed that it applied “to the construction of s.77(2) of the Act of 1980”. His Lordship was referring to the Magistrates’ Court s Acts and then went on to observe:[48]

“I can see no reason why the powers given by s.77(2) [of the Magistrates’ Court Act] should not be exercised from time to time and indeed as often as justices concerned consider that the occasion requires. So to hold is not to encourage or facilitate deliberate and inexcusable default. No doubt magistrates’ courts will be alert to see that the existence of the power further to postpone is not abused but is only exercised as the occasion requires.”

[47][1985] AC 750.

[48]At p.759.

It is clear that the House applied the provision where circumstances had changed, and that it was appropriate in the circumstances that the power should be exercised again.

In Bhardwaj’s case in the High Court the section was relied upon, but it was unnecessary for the High Court to consider its application, having come to the view that the exercise of the power on the first occasion was contrary to the principles of natural justice and hence of no effect, which meant that it was open to the body in question to re-hear the application.

In an earlier case in the Federal Court of Minister for Immigration and Ethnic Affairs v Kurtovic,[49] Gummow J discussed the provision. In that case a man had been sentenced to imprisonment for manslaughter and the deportation order in respect to him had been revoked. He was warned that any further conviction might render him liable for deportation. The man sought to be released on parole and appealed to the Supreme Court, which dismissed his appeal and made some observations about the revocation order. He was thereafter interviewed and the Minister approved a departmental recommendation and ordered his deportation. One of the arguments put was that a decision having been made, it was not open to the Minister to re-visit the exercise of the power. Gummow J said:[50]

“There was ‘an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise’. Halsbury’s Laws of England first edition Vol. 27, p.131. However s.33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s.32(1) of the Interpretation Act 1889 (UK) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed ‘from time to time as occasion requires’. But in any given case a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in question.”

[49](1990) 21 FCR at 193.

[50]At p.211.

Later in his judgment, his Honour noted the argument that the second decision could not be made in the absence of any change in relevant circumstances. His Honour said:[51]
[51]At p.218.

“In the present case, there is nothing in the Migration Act which suggests an intention contrary to the presumption embodied in s.33(1) of the Acts Interpretation Act 1901 to which I have already referred. Accordingly, the power to make a deportation order is exercisable from time to time so as to revoke or revive a deportation order previously made, whether on the same facts as before or otherwise. Even if the facts upon which the original decision was based remained constant, it may be the policy of the donee of the power which changes and thus requires a reconsideration of decisions previously made … The significance of a change in either facts or in ministerial policy would go merely to the merits of a decision upon which the Court is not entitled to decide. The appellant could not therefore have been functus officio, and an estoppel could not be allowed which had the effect of stifling the future exercise of the statutory discretion.”
(Emphases added).

His Honour referred to a number of cases in support and concluded:

“I would respectfully agree with what was there said, that if a deportation order is revoked, there is power to make another deportation order in reliance upon the same facts as those upon which the previous deportation order was based.”
(Emphasis added).

Ryan J agreed with Gummow J’s observations.[52]
[52]See ibid at p.201.

In an earlier case in the New South Wales Court of Appeal, the Interpretation Act provision was applied. One of the issues in the case was whether a second certificate, which replaced a first certificate that had been withdrawn was a nullity. It was submitted that there was no power to withdraw a first certificate and replace it with a second. The case was Parkes Rural Distributions v Glasson.[53] Glass JA, speaking for the Court, said:[54]

“The trial judge rejected this argument and found on the evidence that the first certificate had been withdrawn and replaced by the second certificate. It was argued before us that no power was vested in authorised officers which would enable this to be done. I am unable to agree. The power to issue certificates granted by s.8(3) of the Act is elaborated by the Interpretation Act 1897 s.32, which permits its exercise from time to time. It has been held that a power exercisable from time to time may be so exercised so as to add to, subtract or reverse the result of a previous exercise: Lawrie v Lees … 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.”

[53](1986) 7 NSWLR 332.

[54]At p.335.

It is clear from the cases that have considered or applied the equivalent of s.40, that the provision does apply to legislation where an enactment confers a power or imposes a duty, unless there is a contrary intention. If there is not a contrary intention then the power may be exercised and the duty shall be performed if the occasion requires it. Hence the first question is, is there a contrary intention in the enactment? If there is not, then does the occasion require the exercise of the power or the performance of the duty?

“Contrary intention” is not just confined to the particular section which gives the power, but may be found express or implied in the Act as a whole. In Blue Metal Industries Ltd v Dilley,[55] the Privy Council made some observations about the phrase “unless the contrary intention appears” in interpretation Acts. Their Lordships said:[56]

“But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.”

[55][1970] AC 827.

[56]At p.846.

In Pfeiffer v Stevens,[57] McHugh J said:

“An intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself.”[58]

[57](2001) 209 CLR 57 at para 56.

[58]See also the observations of Gleeson CJ and Hayne J at para 20.

Counsel for Dr Kabourakis submitted that there was a contrary intention to be found in the Act. In this regard they referred to the provisions concerning disqualification of investigators sitting on panel hearings, and to s.54(2), concerning the effect of a determination of the panel. I have already referred to these provisions. In my view, they do not indicate a contrary intention precluding the application of s.40 of the Interpretation Act. In addition, counsel referred to a number of authorities emphasising the importance of the finality of the decision‑making process. Reference was made to what Gleeson CJ said in the Bhardwaj case,[59] and what was stated by members of the High Court in D’Orta‑Ekeniake v Victoria Legal Aid.[60] Reference was also made to what Grove J said in Walter Construction Group Limited v Fair Trading Administration Corporation,[61] to Export Developments Grants Board v EMI (Australia) Ltd[62] and two Queensland cases, namely, Firearm Distributors v Carson[63] and Ping v Medical Board of Queensland.[64]
[59]Supra at p.603.
[60][2005] 214 ALR 92 at 111-112 and 142.
[61][2004] NSWSC 158 at para 40.
[62](1985) 9 FCR 169.
[63][2001] Qd R 26.
[64][2004] 1 Qd R 282.

Each of the cases was concerned with particular statutory provisions. The final determinant is a question of interpretation of the Act in question. Giving full effect to the importance of finality, the Act does not contain a contrary intention to the implication of s.40.

This proceeding is seeking judicial review. In my opinion, whether or not “the occasion requires it” is a matter for assessment by the Board itself. In my view, it is not a question for judicial review. Whether or not there is a contrary intention in the Act itself is of course a question that can be determined on judicial review. However, once it is accepted that the provision is implied into the Act, then its operation is a matter for the Board.

But if I am incorrect and it is open on this judicial review to go into the merits of the decision to hold a new informal hearing on all the proper material, then in my opinion it was clearly open to the Board in all the circumstances to take the step that it did. Natural justice is not a one-way street. In the bulk of cases natural justice focuses on the person the subject of a complaint or allegation. On the other hand, the person notifying the complaint also has an interest in the outcome and is entitled to natural justice in the sense that the notification is fairly and carefully considered on all relevant material.[65] In my opinion, the Board was correct in coming to the decision that the occasion required that the duty be performed again, namely, to properly, carefully and fairly consider and determine the notification on all relevant material.
[65]See R v Criminal Injuries Board ex parte A [1999] 2 A.C. 330 at 345

D. Res Judicata

It was submitted on behalf of the Doctor that if the Board had the power to establish a second panel to conduct an informal hearing, the doctrine of res judicata presented an obstacle to the second informal hearing because the issue of the doctor’s conduct had been determined and bound the parties. It was submitted that the Board is a court of competent jurisdiction for the purposes of the doctrine, and reference was made to the decision of O’Bryan J in Basser v Medical Board of Victoria.[66] Basser’s case concerned an appeal from a decision made by the Medical Board of Victoria to remove the name of a doctor from the register of legally qualified medical practitioners. The Act which empowered the Board to do this was the Medical Practitioners Act 1970 and its provisions are different to the provisions of the present Act, in particular the procedures to be followed in considering and determining a complaint. In that case, the doctor appeared before the Board in November 1979 and no specific charge was laid against him. The Board sought information from him. He gave the information. As a result of that inquiry the Board censured the doctor. In July 1980, the doctor was given notice that it was the intention of the Board to inquire into a charge which was stated in a notice given to him. The inquiry was held by the Board over a three day period and eventually the Board announced that it was satisfied that the doctor had been guilty of infamous conduct. At the outset of the hearing, the point was taken that the matter had already been decided by the first inquiry and hence the doctrine of res judicata applied. O’Bryan J considered whether res judicata applied to the Board’s hearings.[67] The learned judge considered a number of cases concerning the doctrine of res judicata and considered and determined the question whether the Board was a court of competent jurisdiction for the purposes of the doctrine. He held that it was. There are major differences between the present procedures and the procedures under the former Act of 1970. In Basser’s case, the Board itself had conducted an enquiry, the medical practitioner was charged with a specific misconduct offence, and the Board had coercive powers and required evidence to be given on oath. In my opinion, the differences between the old and new procedures means that the finding by O’Bryan J cannot be applied to an informal hearing under the new Act. However, O’Bryan J held that the plea of res judicata did not apply because the parties to the first inquiry were not the same as the parties to the second inquiry, and, secondly, that there was difficulty in determining the issues of fact which had been disposed of at the first inquiry. He held that the plea of res judicata “does not apply as there has been no determination or decision in earlier litigation between the same parties in the present proceeding”.
[66][1981] VR 953.
[67]At pp.971 et seq.

The Board’s counsel submitted that the principle of res judicata could not apply if the Court came to the conclusion that the Board had the authority to establish a second panel to carry out an informal hearing. It was submitted that the statutory function cannot be frustrated by the common law doctrine. I disagree. The principle of res judicata does apply in circumstances where a court or a tribunal has the power to exercise its jurisdiction or authority. The principle operates to estop the parties from re‑litigating an issue which has already been decided.

In Spencer Bower Turner and Handley – Res Judicata - 3^rd ed. (1996), the learned authors in paragraph 1 define the doctrine as follows:

“In English law a res judicata is a decision pronounced by a judicial tribunal having jurisdiction over the cause and the parties which dispose of once and for all of the matters decided, so that except on appeal they cannot afterwards be re‑litigated between the same parties or their privies.”

The learned authors observed that the effect of the decision is two-fold. First, the same claim cannot be raised again between the parties because the principle extends to all matters of law and fact “which the decision necessarily established as the legal foundation of the conclusion reached by the Court.” Secondly, where an action succeeds the right or cause of action is extinguished because it merges into the judgment. The principle operates as an estoppel.

It can be seen that there are a number of essential matters that must be established before the doctrine may apply. First, there must be a decision. Secondly, it must be pronounced by a judicial tribunal having jurisdiction over the cause. Thirdly, that there is a cause or issue between the parties and the decision disposes once and for all the matters so decided.

In Blair v Curran,[68] Dixon J said:[69]

“A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. Estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.”

[68](1939) 62 CLR 464.

[69]At p.453.

That statement of principle has been quoted often and always with approval. It describes the elements of the doctrine. There must be a decision which affects the rights of one or other of the parties.

The first question is whether or not the Board, when it embarks upon an informal hearing through a panel, is “a court of competent jurisdiction”? It has been held that the doctrine can apply to decision-making bodies which are not courts of law. The doctrine does apply in relation to a finding made in an arbitration. The arbitrator has jurisdiction by reason of the contract made between the disputants, and makes the award in circumstances akin to a dispute in a court of law.

In Pastras v Commonwealth,[70] Lush J considered the procedures and determination of the Commonwealth Commission for Employees Compensation. His Honour stated:

“The underlying principle of this form of estoppel is that the parties who have had a dispute heard by a competent tribunal should not be able to litigate the same issues in other tribunals. When the decision‑making body is an administrative body not affording the opportunity of presenting evidence and argument, it seems to me that there is no room for the operation of this principle.”

[70](1966) 9 FLR 152.

Gibbs J, in Administration of Papua New Guinea v Daera Guba,[71] stated the principle in more liberal terms when it came to considering the status of a tribunal as a judicial body. His Honour said:[72]

“The doctrine of estoppel extends to decisions of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived by statute or from the submission of the parties, and it has only temporary authority to decide a matter ad hoc.”
(Emphasis added).

[71](1973) 130 CLR 353.

[72]At p.353.

It is important to the operation of the estoppel that the dispute between the parties results in what might be described as a final judgment, which determines once and for all the dispute between the parties. As was said in Cross on Evidence:[73]

“There must be a final judgment before a competent tribunal between the same parties litigating in the same capacity or their privies.”

[73]5^th Australian ed. at paragraph 5020.

A statutory tribunal may be a tribunal to which the doctrine extends, but it depends upon whether or not in the exercise of its decision making process it finally decides a question arising between the parties. There is no doubt that the doctrine does not apply where a tribunal is making a mere administrative decision.[74] The decision must be one made in respect to an issue between parties, after considering the evidence and argument.[75]
[74]See Administration of Papua New Guinea v Daera Guba, supra, at p.453.
[75]See Pastras, supra.

In my opinion, what the panel did, resulting in a finding made by it at the first informal hearing, does not amount to a final judgment between parties litigating an issue or cause. The fact was that the informal hearing did not involve and was not made in the course of any lis inter partes.[76] There was no issue between the notifier and the doctor. The notifier notified the Board that she believed Dr Kabourakis may have engaged in unsatisfactory professional performance when treating her son that was unsatisfactory. By reason of s.25, the Board was bound to investigate the notification. It is not a question of parties litigating a cause. It is not a question of a lis. The informal hearing was not a judicial determination of an issue. The informal hearing did not decide any rights between parties. The findings of the panel were reviewable if an adverse finding was made by the medical practitioner. The members of the panel may not include a legal practitioner although there would be power to appoint a legal practitioner to the panel. The hearings are closed to the public and legal representation is not permitted. Further, the proceeding must be conducted with as little formality and technicality as possible, and the panel is not bound by the rules of evidence. There is no suggestion that evidence should be given on oath. All of these factors lead to the conclusion that the informal hearing panel did not make a final judgment between parties who were litigating an issue, which resulted in the establishment of a right. Res judicata was discussed in its application to an administrative tribunal by Lord Bridge of Harwick in Thrasyvoulou v Environment Secretary [1990] 2 A.C 273. At 289, his Lordship said:

“In principle they (the principles of finality in lawsuits and no-one should be punished twice for the one fault) must apply equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of a specific issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the illwant statutory exception”.

[76]See Re Racal Communications Ltd [1981] AC 374 at 380 per Lord Diplock.

The informal panel finding did not establish a legal right. In my opinion, the doctrine of res judicata did not apply to the finding made by the informal panel and hence the Board is not estopped from holding a second informal hearing.

E. Abuse of power

It was submitted on behalf of Dr Kabourakis that to conduct a second informal hearing into the allegations would be an abuse of the Board’s power. There is no doubt that this Court on judicial review has power to stop a disciplinary proceeding if the proceeding amounts to an abuse of process.[77] The majority of the High Court said in that case:[78]

“The question whether disciplinary proceedings in the tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.”

[77]See Walton v Gardiner (1993) 177 CLR 378.

[78]At p.396.

On one side there is the importance of finality of any investigation. Equally, it is a matter of concern for a professional person to have a complaint made against him or her. As against this is the importance that a notifier’s allegation is properly investigated. That is very much in the public interest. I respectfully agree with what Bongiorno J said in XD v Johnson (No. 2)[79] when he said:

“The trust and confidence which the community properly has in the integrity of the medical profession can only be maintained if the community also has confidence that investigative bodies such as the defendants in this case will be willing and able to investigate complaints and act upon them if satisfied that they are justified.”

[79](2002) 6 VR 381 at para 23.

His Honour stated that a heavy burden rested upon a practitioner who sought an order which would stop an investigation being properly, carefully, fully and fairly conducted. The sense of grievance in the notifier if it is not so conducted does not need to be emphasised. The fact was that in the present matter, because of a mistake an important piece of expert evidence was not provided to the panel. The result is that reasonably serious allegations made concerning the conduct of Dr Kabourakis have not been properly and fairly investigated; ‘fairly’ in the sense that the notifier is entitled to have the notification properly investigated and that the Board was bound by statute to do so. If the doctor has been guilty of inappropriate conduct in the past, then it is of the utmost importance in the public interest that it is brought home to him that the conduct should not be repeated. In my opinion, on balance, any inconvenience of distress caused to Dr Kabourakis is outweighed by the public interest in the performance of a careful and proper investigation. In coming to that conclusion I do not overlook the assertion that the doctor is exposed to double jeopardy because of the earlier proceeding, but in my view in performing the weighing process, the public interest outweighs the concerns of the doctor.

Conclusion

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.

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Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493

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[2005] VSC 493

20 December 2005