Khalifeh v District Court & Anor

[2001] NSWCA 333

NEW SOUTH WALES COURT OF APPEAL

CITATION:      KHALIFEH v DISTRICT COURT & ANOR [2001]  NSWCA 333

FILE NUMBER(S):
40205/01

HEARING DATE(S):            11 September 2001

JUDGMENT DATE: 11/09/2001

PARTIES:
Christian Khalifeh (Applicant)
District Court (First Opponent)
Physiotherapists Registration Board (Second Opponent)

JUDGMENT OF:      Priestley JA Powell JA Fitzgerald AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        00/12/0019

LOWER COURT JUDICIAL OFFICER:     McGuire DCJ

COUNSEL:
In Person (Applicant)
P I Lakatos (Second Opponent)

SOLICITORS:
In Person (Applicant)
Crown Solicitor (Second Opponent)

CATCHWORDS:
PROFESSIONAL DISCIPLINE
whether person entitled to use name or title 'physical therapist'
where person a registered nurse entitled to practise physiotherapy in some circumstances
Physiotherapists Registration Act 1945, s26(1)(b)

LEGISLATION CITED:
Justices Act 1902
Nurses Registration Act 1953
Physiotherapists Registration Act 1945
Supreme Court Act 1970

DECISION:
Summons dismissed with costs

JUDGMENT:

- 4 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40205/01

PRIESTLEY JA
POWELL JA
FITZGERALD AJA

Tuesday 11 September 2001

KHALIFEH v DISTRICT COURT & ANOR

Judgment

1. FITZGERALD AJA: The claimant, Mr Christian Khalifeh, is a registered nurse and as such is entitled to practise physiotherapy in some circumstances in accordance with s26(2)(b) of the Physiotherapists Registration Act 1945 (the “Act”). The claimant is not registered under the Act.

2. The central question presented by the proceedings in this Court, is whether the claimant is entitled to take or use the name or title of ‘physical therapist’.  He does not dispute that he used that title on two documents sent to the insurance arm of the National Roads and Motorists’ Association, one document dated 20 January and the other dated 1 May 1999. 

3. The claimant was charged with taking or using the name or title of physical therapist contrary to s26(1)(b) of the Act, convicted in the Local Court of a charge in respect of each of those two documents and on his conviction on each charge fined $750 and ordered to pay the costs of the proceedings in the Local Court, which were assessed at $9,445.

4. The claimant appealed to the District Court under Pt 5 of the Justices Act 1902 but his convictions were confirmed and, although his fines were reduced to $400 on each charge, his appeals were otherwise dismissed and he was ordered to pay the costs of the District Court proceedings assessed at $5,360.

5. Section 146 of the Justices Act imposes a considerable barrier to any proceedings in this Court in these circumstances. However, authority establishes that it is possible to apply for an order of the nature of prerogative relief under s69(b) of the Supreme Court Act 1970, although the grounds upon which relief can be granted have been very narrowly established.

6. Although the claimant raised a number of arguments, both in his very extensive written submissions and in his oral submissions to the Court this morning, all arguments ultimately depend upon a construction which he seeks to apply to s26(1)(b) of the Act. A number of his other arguments not only depend upon that construction but seek to question factual findings made in the District Court which are themselves an obstacle to the success of his appeal. However, it is unnecessary to deal with those matters if, as I think, the construction advanced by the claimant in respect of s 26(1)(b) of the Act is incorrect.

7. Shortly stated s26 contains two prohibitions upon persons who are not registered under the Act. The first of those prohibitions, which is in s26(1)(a), forbids a person who is not registered under the Act from practising physiotherapy. That prohibition is qualified by later provisions in s26, notably so far as the present proceedings are concerned, by s 26(2)(b), which provides that nothing in s26 operates to prevent the practice of physiotherapy by a nurse whose name is entered in the Register of Nurses kept under the Nurses Registration Act 1953 acting under the instructions given to the nurse by a physiotherapist or by a person referred to in s26(2)(a). The claimant was not charged with an offence against s26(1)(a) but with an offence against s 26(1)(b) of the Act.

8. Section 26(1)(b) contains a number of prohibitions. The first of those prohibitions forbids a person who is not registered under the Act from taking or using the name or title of physiotherapist, physiotherapeutist, physical therapist, physical therapeutist or electrotherapist. That prohibition is complete in itself.

9. Next follows a prohibition upon a person who is not registered under the Act from holding himself or herself out as being within one of the classes described.

10. Another prohibition in s26(1)(b) of the Act, which is introduced by the word “or” and is plainly disjunctive, is a prohibition upon a person who is not registered under the Act. Such a person shall not

    “...assume, take or use, any name, initials, word, title, addition, symbol or description which, having regard to the circumstances in which it is assumed, … indicates, or is capable of being understood to indicate, or is calculated to lead persons to infer, that the person is registered under this Act as a physiotherapist, or is qualified to be registered under this Act as a physiotherapist, or is competent or willing to practise physiotherapy in contravention of this section.”

11. In both the language and structure of s26(1)(b) of the Act, it is plain that the words commencing “which having regard to” have no application in respect of the first prohibition in the section that is the prohibition on taking or using the name or title of, amongst other names or titles, physical therapist.

12. It was unnecessary therefore to establish the guilt of the complainant in respect of the offences with which he was charged to establish more than that he is a person who was not registered under the Act at the material time who took or used the name or title of physical therapist. Those matters were undisputed.

13. In his argument the claimant referred to passages in Hansard which occurred in the course of the debate leading up to the passage of the Act. I did not gain any assistance from those passages but in any event I regard the construction of s26(1)(b) of the Act as so clear that there is no occasion to refer to Hansard.

14. The claimant also referred to his honest and reasonable belief in connection with his use of the name or title physical therapist, to his absence of any criminal intent or mens rea and to other similar matters.  However, it is plain that at the very least he deliberately used the name or title physical therapist and no further mental state is, in my opinion, required to establish a breach of the section.   As I said earlier, insofar as these arguments were advanced by the claimant they conflicted with findings of fact which were made in the District Court which do not fall for review in these proceedings. 

15. The only other matter that requires mention is a submission made by the claimant that it was not fair and reasonable to award almost $10,000 costs in respect of the Local Court proceedings particularly having regard to the comparatively small fines imposed.  It is sufficient to dispose of this part of the case to say that it was not disputed that the orders for costs which have been made were within power and the reasonableness of the amounts awarded are not properly before this Court for its reconsideration. 

16. In summary therefore I would dismiss the summons with costs.

17. PRIESTLEY JA:  Yes I agree with Justice Fitzgerald for the reasons he has given.

18. POWELL JA:  As do I.

19. PRIESTLEY JA:  The order of the Court therefore is that the summons is dismissed with costs.

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LAST UPDATED:            20/09/2001