Lindsay v NSW Medical Board

[2008] NSWSC 40

CITATION:	LINDSAY v NSW MEDICAL BOARD [2008] NSWSC 40
HEARING DATE(S):	31 January 2008, 1 February 2008
JUDGMENT DATE :	7 February 2008
JURISDICTION:	Administrative Law
JUDGMENT OF:	Hall J at 1
DECISION:	The relief sought in the Further Amended Summons is refused.
CATCHWORDS:	PROFESSIONS – medicine – complaints against medical practitioner – delegates of NSW Medical Board conducted inquiry for the purposes of s 66 Medical Practice Act 1992 – s 66 inquiry where Medical Board satisfied action necessary for the purpose of protecting health of members of the public – determination by Medical Board to suspend registered medical practitioner – whether plaintiff was denied natural justice – whether Medical Board made misrepresentations to the plaintiff – right to legal representation – whether Medical Board failed to take into account proportionality and period of suspension – whether Medical Board had insufficient regard to facts – whether determination of the Medical Board illogical or irrational – whether Medical Board improperly took into account “mere concern” of “possible” impairment – whether referral to Health Care Complaints Commission properly made
LEGISLATION CITED:	Medical Act 1983 (UK) Medical Practice Act 1992 Migration Act 1958 (Cth) Supreme Court Act 1970
CATEGORY:	Principal judgment
CASES CITED:	Ackroyd v Whitehouse (1985) 2 NSWLR 239 Appellant WADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA FC 30 Applicant Naff of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 Ballam v Higgins (1986) 17 IR 131 Bhatia v New South Wales Medical Board [2007] NSWSC 1316 Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494 Boral Gas (NSW) Pty Limited v Magill (1993) 32 NSWLR 501 Bruce v Cole (1998) 45 NSWLR 163 Buck v Bavonne (1976) 135 CLR 110 Dainford v Independent Commission Against Corruption (1990) 19 ALD 207 General Medical Council v Sheill [2006] EWHC 3025 In re Minister for Immigration & Multicultural Affairs; ex part applicant S20/2002 (2003) 198 ALR 59 Li Shi Ping v Minister v Immigration , Local Government adn Ethnic Affairs (1994) 35 ALD 557 Lloyd v Veterinary Surgeons Invetigating Commission & Anor [1999] NSWCA 68 Minister for Local Government v South Sydney City Council [2002] 55 NSWLR 381 NSW Breeding & Racing Stables Pty Limited v Administrative Appeal Tribunal of NSW [2001] NSWSC 494 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Minister for Immigration & Multicultural Affairs; ex parte A [2001] 185 ALR 489 Ross v Brown [1979] 1 NSWLR 114, 129 to 130 Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) (2007) 240 ALR 135 Thomas v Mowbray (2007) 237 ALR 194 X v New South Wales Medical Board (1993) 32 ALD 330
TEXTS CITED:	Judicial Review of Administrative Action, Aronson Dyer & Groves, 3 ed at pp.500 to 501
PARTIES:	LINDSAY, David Charles v NSW MEDICAL BOARD
FILE NUMBER(S):	SC No 30144 of 2007
COUNSEL:	P: J M Ireland QC/P Bruckner D: K Richardson
SOLICITORS:	P: K Solari D: NSW Medical Board

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

HALL J

THURSDAY 7 FEBRUARY 2008

No 30144 of 2007

DAVID CHARLES LINDSAY v NEW SOUTH WALES MEDICAL BOARD

JUDGMENT

1 HIS HONOUR: In these proceedings, the plaintiff, a registered medical practitioner, claims declaratory and other relief against the defendant, the New South Wales Medical Board (referred to in this judgment as “the Board”) in respect of a decision and order made by the Board’s delegates on 18 December 2007 suspending him for a period of eight weeks. The plaintiff contends that the order made was void and of no effect.

2 The plaintiff proceeded by way of the Further Amended Summons filed pursuant to leave granted on 31 January 2008 and as further amended on that date. The proceedings were listed for final hearing on an urgent basis and were heard on Thursday 31 January and Friday 1 February 2008.

Introduction

3 The jurisdiction the plaintiff, by his amended summons, sought the Court to exercise is that referred to in s.69 of the Supreme Court Act 1970 commonly referred to as the jurisdiction to grant relief in the nature of prerogative relief. Mr J M Ireland QC, with Mr P K Bruckner of counsel appeared on behalf of the plaintiff.

4 Ms K Richardson, of counsel, who appeared on behalf of the Board, submitted that:-

(a) It was an abuse of power to concurrently commence and prosecute proceedings in the Medical Tribunal and in this Court on the same subject matter, namely, by instituting a statutory appeal to the Medical Tribunal and, at the same time, seek judicial review in this Court. Both proceedings were initiated on the same date.

(b) That, in any event, on the authorities, the availability of an alternate statutory appeal remedy warrants a refusal by this Court to conduct judicial review at all as a matter of discretion.

Chronology of events

5 The Board, by its duly appointed delegates, Dr Sarah Mares and Dr Keith Edwards, conducted an inquiry for the purposes of s.66 of the Medical Practice Act 1992 (the “Act”).

6 On 14 December 2007, the delegates conducted a hearing, in the nature of an interview, with the plaintiff (referred to below as the “hearing”).

7 On 18 December 2007, the delegates made a decision under s.66 of the Act to suspend the plaintiff from practising medicine for a period not exceeding eight weeks. The eight week period commenced on 19 December 2007 and will expire on 12 February 2008.

8 On 13 December 2007, the Duty Judge (James J) gave judgment on an urgent basis on an application by summons by the plaintiff. Substantially, the plaintiff sought orders which would, if granted, have had the effect of preventing the delegates proceeding on 14 December 2007.

9 His Honour referred to proceedings in respect of the complaints in question in these proceedings having been the subject of proceedings in the Medical Tribunal originally fixed for hearing in February 2008 but subsequently, on the plaintiff’s application, changed to April 2008.

10 His Honour referred to correspondence and background matters in relation to the Inquiry to be held on 14 December 2007. These included the fact that the plaintiff’s solicitor, Mr Solari, had requested particulars. The principal oral arguments presented related to the question of particulars and legal representation.

11 James J concluded, having regard to the steps taken by the Board, that the steps it had taken were sufficient in the circumstances. His Honour referred to the importance of the nature of inquiry. In doing so, reference was made to the fact that the delegates could not take action under s.66 of the Act and the inquiry was a preliminary step, an observation that may have been based on submissions that were intended to convey the point that the delegates were not undertaking a fact finding role. The present hearing proceeded upon the basis that, if properly delegated, the delegates, in fact, had the power to take action under s.66

12 The present proceedings were initially commenced by the amended summons filed on 21 December 2007. The amendment was made to the summons originally filed on 13 December 2007.

13 On 21 December 2007, the plaintiff also filed appeal proceedings in the Medical Tribunal, pursuant to s.95 of the Act.

14 On 7 January 2008, the Board, by its delegates, provided written reasons for their decision given on 18 December 2007.

The statutory scheme

(a) The statutory right of appeal

15 Part 6, Appeals and review, Division 4 entitled “Appeal against suspension by Board” provides in s.95 for a right of appeal in the following terms.

16 Section 97 of the Act provides:-

“97(1) On an appeal, the Tribunal may by order terminate, vary or confirm the period of suspension or revoke, vary or confirm the conditions, as it thinks proper.
(2) The Tribunal’s order must not cause a suspension or conditions imposed by the Board to have effect beyond the day on which any related complaint about the person is disposed of.

17 Section 98 provides:-

“98. An appeal under this division does not affect any suspension or conditions with respect to which it has been made until the Tribunal makes an order on the appeal.”

18 Ms Richardson submitted that it was apparent from the language of s.97 – given that the Tribunal thereby has the express power to make its own decision whether to terminate, vary or confirm the suspension – that the nature of the appeal before the Tribunal is a de novo hearing on both the merits as well as in relation to questions of law (Board’s written submissions, 23 January 2008, paragraph 14).

19 The Tribunal is constituted under s.147 of the Act. Under s.148(1), the Governor may appoint a Judge of the District Court as Chairperson of the Tribunal and may appoint one or more judges of the District Court as Deputy Chairpersons of the Tribunal. Upon the Chairperson being informed under s.147(1) of an appeal made to the Tribunal, in accordance with the Act, the Chairperson is then to nominate himself or herself or a Deputy Chairperson to sit on the Tribunal for the purpose of the hearing of an appeal: s.147(3).

20 By that provision, for the purpose of hearing an appeal, the Tribunal is also to consist of two registered medical practitioners having such qualifications as are prescribed and one lay person in accordance with s.147(3).

21 By s.154 of the Act, the decision of the presiding Chairperson or Deputy Chairperson on any question of law or procedure arising during an appeal, is the decision of the Tribunal for the purpose of the appeal.

22 Section 161(1) of the Act provides that the Tribunal is to conduct an appeal as it thinks fit. Section 161(4) provides that Schedule 2 has effect with respect to the hearing of any appeal by the Tribunal.

23 Clause 1 of Schedule 2 importantly provides:-

“1. In proceedings before it … the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit.”

24 Clause 2 of Schedule 2 provides:-

“2(1) … the Chairperson or Deputy Chairperson of the Tribunal may summon a person to appear in proceedings before … of the Tribunal, to give evidence and to produce such documents (if any) as are referred to in the summons.”

25 Clause 2(3) empowers the Tribunal in proceedings before it to take evidence on oath or affirmation.

26 Clause 10(1) of Schedule 2 provides:-

“It is the duty of … the Tribunal … to hear … appeals under this Act and to determine those … appeals expeditiously.”

(b) Extension of suspensions

27 Section 67 of the Act provides:-

“A period of suspension imposed by the Board under this Division may be extended from time to time by the Board by order for a further period or further periods, each of not more than 8 weeks, but only if:-
(a) the extension has been approved in writing by the Chairperson or a Deputy Chairperson, and
(b) the complaint about the practitioner has not been disposed of.”

28 By s.95(1) of the Act:-

“A person may appeal to the Tribunal:-
(a) against a suspension or extension of a suspension by the Board under Part 4 …
…”

29 Ms Richardson made submissions on the matter of “Abuse of process – concurrent proceedings”.

30 The course adopted in the hearing of the present proceedings was to hear full argument on the grounds relied upon by the plaintiff in seeking orders in the nature of prerogative relief rather than to confine the disposition of the proceedings to the “abuse of process” point.

31 As the parties have observed, there are only a limited number of decisions of this Court to date on the provisions of s.66 of the Act. In light of that fact and that the proceedings had been listed on an urgent basis and the parties had prepared extensive written submissions on all issues, I determined that all issues, substantive and discretionary, should be heard and determined.

32 That course, I considered, would ensure that if it was shown that there existed “exceptional circumstances” in this case, then the general disinclination of this Court to permit judicial review where there is an alternate statutory appeal to a specialist Tribunal may be displaced. The decision of the Court in X v NSW Medical Board (1993) 32 ALD 330 provides one example of circumstances that may arise and which would enable this Court to intervene in relation to an order made under s.66 of the Act.

Background

33 The plaintiff is presently aged 42 years (date of birth 20 September 1965). He graduated with a degree of Bachelor of Medicine, Bachelor of Surgery from the University of Sydney in 1989.

34 He was first registered to practice medicine in New South Wales on 28 December 1988 and he established his own practice in Sydney in December 1996.

35 On and from July 2001, the plaintiff’s registration as a medical practitioner has been subject to various practice conditions. In that respect, the following are noted:-

• On 23 July 2001, the Professional Standards Committee found the plaintiff guilty of unsatisfactory professional conduct. Conditions were imposed on his registration requiring the auditing of surgical procedure records, the auditing of medical records and inspection of his premises.

• On 29 November 2002, the same conditions were re-imposed on appeal to the Medical Tribunal. An appeal to the Court of Appeal of New South Wales was dismissed.

• On 12 August 2004, the Medical Tribunal found the plaintiff guilty of unsatisfactory professional conduct. Conditions were imposed requiring the auditing of medical records and “supervision to provide support and to monitor Dr Lindsay’s capacity to practice medicine safely” .

• On 8 November 2005, the Court of Appeal of New South Wales delivered judgment in which the plaintiff was partly successful insofar as the supervision conditions were narrowed to “supervision … to provide support and to monitor Dr Lindsay’s keeping of medical records for his patients” .

36 As at the date of the inquiry conducted by the delegates of the Board, the plaintiff was registered in the General Category with conditions as imposed by the Court of Appeal on 8 November 2005.

Background to the Inquiry

37 The Board claimed that it received 55 complaints in respect of the plaintiff’s medical practice, some dating back to 1998, but the majority having been made since 2000. Its position before the delegates and in these proceedings was that, during the years 2005, 2006 and 2007, complaints were received concerning the plaintiff’s practice of medicine, either by the Board or the Health Care Complaints Commission (HCCC) at a rate of over one a month, the most recent complaints having been made on 18 October 2007 and 27 November 2007.

38 A formal complaint has been referred to the Medical Tribunal and a 12-week hearing has been fixed to commence on 28 April 2008. It was amended on several occasions to include additional complaints. The formal complaint comprises five complaints involving 24 patients, two employees and five medical practitioners and 20 concerning the plaintiff’s patient medical records. The Further Amended Notice of Complaint was before the delegates in addition to other material including reports of Dr Allnutt, psychiatrist, dated 6 and 21 March 2007. A copy of the full list of documents that were provided to the plaintiff and the delegates was annexed to the affidavit of the plaintiff’s solicitor, Mr Kelvin Solari sworn 13 December 2007, and marked “KS4”.

39 The determination of the delegates was set out at p.30 thereof in the following terms:-

“ Determination
After carefully considering all the material before the Inquiry and for the reasons outlined in this written decision, the delegates are satisfied that it is necessary for the purpose of protecting the life or physical or mental health of any person to suspend Dr Lindsay from practising medicine for a period of 8 weeks.
Pursuant to s.66(1)(a) of the Act with effect from 00.01 on 19 December 2007, the delegates ordered that Dr Lindsay be suspended for a maximum period of eight weeks.”

40 In accordance with the provisions of the Act, in particular s.66B, the Board referred the matter to the HCCC for investigation as a complaint. There is an issue as to whether the referral complied with s.66B(1) of the Act.

41 The background to the inquiry was that the Board’s Conduct Committee at a meeting held on 13 November 2007, determined to hold an inquiry pursuant to s.66 of the Act in relation to the plaintiff. At that meeting, the Committee considered the HCCC’s investigation report into a complaint made by a patient (referred to in these proceedings as “Mrs F”) concerning treatment she had received from the plaintiff in April 2007.

42 In the written reasons, the delegates referred to the Committee’s concern at what was said to be “the seriousness of the complaint by (Mrs F)” noting that action under s.66 of the Act may be warranted.

43 The delegates proceeded by recording the following matters that the Committee had noted (based on allegations made):-

• “The patient withdrew her consent during the procedure. Dr Lindsay continued with the procedure without consent .

• The current complaint is considered in the light of matters raised in the substantial complaints in relation to Dr Lindsay’s practice of medicine and his health, which have already been referred to the Medical Tribunal.

• If proven, there is a likelihood that the complaints before the Tribunal may result in the suspension or de-registration of Dr Lindsay or the placing of conditions on his registration.

• The date for the Medical Tribunal hearing has been delayed.”

44 The delegates then noted in their report that these matters raised significant questions “… concerning whether immediate action by the Board is necessary for the purpose of protecting the life or physical or mental health of any person”.

45 Dr Mares is a psychiatrist and Dr Edwards is an emergency physician. They were appointed to be the delegates of the Board by notice dated 26 November 2007. Further reference will be made to the delegation of authority below in the context of submissions made as to the validity of the appointment.

The delegates’ decision

46 The delegates made reference in their reasons for decision to the documents made available to them and to the plaintiff. In an early section of the report (p.4), the delegates referred to the provisions of s.66 and recorded:-

“The scope of the Inquiry is therefore whether such action needs to be taken after carefully considering the contents of the documents before the delegates and the oral evidence of Dr Lindsay at the Inquiry. Neither the Board nor the delegates are making any initial allegation, charge or complaint against Dr Lindsay to initiate this Inquiry. As such, the delegates could not particularise any allegation or complaint.
It was clarified that the Inquiry was not going to concern itself with the details of the complaints that had been referred to the Medical Tribunal (see behind Tab 7). It was accepted that Dr Lindsay contests the facts of all of the complaints that have been referred to the Medical Tribunal, hence the 12 week hearing that is set down to commence on 21 April 2008 (Tab 8), and the delegates proceeded with the Inquiry on this understanding.”

47 In the “discussion” in the reasons for decision (pp.8 to 9), the delegates refer to their identification of a number of “issues of concern” and it is stated “… none of which can be considered in isolation”.

48 The reasons then record the following:-

“The issues of concern, in no particular order of priority and which will be discussed in more detail below, are:-

• complaints: number of complaints; similarities between complaints; and apparent escalation of complaints;
• the delegates’ observations of Dr Lindsay during the Inquiry;
• Dr Lindsay’s practice of medicine;
• Dr Lindsay’s possible impairment;
• whether the imposition of additional conditions on Dr Lindsay’s registration would provide sufficient protection.
The delegates note that whilst some of these issues can simply be gleaned as facts from the documents before the Inquiry … and also whilst any one issue discussed below may not provide sufficient concern in itself to warrant suspension, the threshold of concern that necessitated action being taken under s.66 was reached once all of the issues were considered together along with the opportunity to consider Dr Lindsay’s responses at the Inquiry and to observe and listen to Dr Lindsay himself. Although individually set out below for the purpose of its discussion, these matters cannot, and should not, be considered in isolation. It is the combination and interaction of all the issues which raise sufficient concern for the delegates to be satisfied that it is necessary to take action under s.66.”

49 The terms of s.66 and the nature of the function to be performed pursuant to its provisions are concerned with the question as to whether it is necessary for the Board to take one or other form of preliminary action as specified in s.66(1)(a) or (b) in the interests of protecting the life or physical or mental health of patients.

50 The circumstances in which a question under s.66 arises may not permit a full or final inquiry to be undertaken into the merits of complaints made with respect to a registered medical practitioner before action is taken under that section. Accordingly, the Board (or its delegates exercising the functions of the Board) may not be in a position to make factual findings or express ultimate conclusions on matters concerning the competence or otherwise of a particular medical practitioner. In the statutory scheme, findings and conclusions of that kind fall within the province of the Medical Tribunal.

51 It is, accordingly, of note that the delegates in the present matter not infrequently expressed their views or opinions in terms of “issues of concern”. The context in which such expressions were employed suggest they were intended to convey the limited nature of their inquiry, being based on the material (written and oral) available for the purposes of stating a conclusion required of them by the terms of s.66(1). In expressing their “concerns” or “issues of concern” (the word “concern” conveying the notion of “to cause anxiety”: Shorter Oxford English Dictionary), was, in my opinion, an appropriate and sufficient formulation for the purposes of expressing the conclusions required under s.66(1), the delegates themselves being specialist medical practitioners.

The delegates’ analysis

52 In general terms, the structure of the delegates’ reasons may be discerned as involving the following:-

The history of complaints, frequency and ‘escalation’

(a) The history of complaints, their frequency and ‘escalation’ , their pattern and the “themes” indicated by their terms together with a claimed absence in the plaintiff of a capacity for self-questioning or insight in light of complaints made and a modification or adjustment to his practice of medicine.

(b) The plaintiff’s behaviour and communications during the ‘hearing’ as evidencing a personality that allegedly exhibited a sense of persecution or victimisation as well as a ‘grandiosity’ . Certain of his answers to questions raised in the ‘hearing’ were described in the report as ‘bizarre and convoluted’ .

(c) The nature and conduct of the plaintiff’s medical practice in terms of his competence. In that respect:-

(i) The conduct of the plaintiff’s practice according to what was asserted to be an inflexible routine pattern lacking flexibility in dealing with particular cases outside the routine. Such rigidity in approach was further claimed to be associated with a risk to a patient’s physical and mental well-being.
(ii) Claimed deficiencies in the taking of patient medical histories.

(1) The number of complaints

53 In relation to the multiplicity of complaints, the delegates considered them “to be an unusually high number of complaints about a practitioner”.

54 In seeking an explanation from the plaintiff about them, the delegates recorded that the only he explanation proffered to explain the number of complaints was either that he was, in his own words, a ‘psychopath’ (which he denied) or “that all the complainants were ‘psychopaths or sociopaths’ and that there was an orchestrated campaign to have him deregistered”.

55 The delegates recorded their opinion that that the type of collusion suggested by the plaintiff among so many patients was “implausible”. They stated in their reasons (at p.10):-

“The delegates consider it significant that the HCCC has seen fit to prosecute in the Medical Tribunal so many complaints once they have completed their investigations and also see as significant that this volume of complaints will be heard altogether in the one Tribunal hearing. The complaint before the Tribunal is relevant in considering whether the circumstances (at the time of this Inquiry) warrant the Board taking action under s.66 of the Act. The delegates also note that prior to a complaint being referred to the Medical Tribunal, it is investigated by the HCCC and then referred to the Director of Proceedings, who independently determines whether such a complaint should be prosecuted before a disciplinary body.”

56 This observation may be taken as conveying the point that complaints have been the subject of some scrutiny and that there are checks made to guard against vexatious complaints.

(2) Similarities between complaints

57 The delegates considered that there were “patterns or themes” in the complaints being matters of concern. These included “… his communication and behaviour during and after his interaction with his patients”. The delegates referred to “the nature, ambit and similarities across the complaints …” (p.11) as relevant to whether action was required under s.66. Two matters of note on the question as to the safety of members of the public were complaints alleging lack of information about procedures and an alleged lack of informed consent to carry out procedures.

58 The delegates expressed the view that effective communication with patients and their families was a matter that was related to safe and adequate medical practice. This included the question of informed consent and a concern for a patient’s overall well-being together with an evaluation of a patient’s subjective experience of the consultation and/or treatment. The fact that a number of patients made similar complaints about such matters was seen by the delegates as significant.

(3) Failure to assess in light of complaints

59 The delegates expressed the view that a medical practitioner about whom complaints were made would be expected to assess and modify his or her practice in seeking to reduce the likelihood of further complaints. They expressed their concern that it appeared that the plaintiff had not made adjustments to minimise the risk of complaints nor had the complaints led him to question whether his actions had played a part in the generation of the complaints.

60 The opinion of the delegates was that without an ability to assess his/her practice in light of complaints and without insight into his/her interpersonal skills, there was a high likelihood of ongoing complaints, and the possibility of harm or distress being occasioned to patients.

(4) Delegates’ observations made of the plaintiff during the ‘hearing’

61 The delegates recorded their “observations of Dr Lindsay during the Inquiry”. In an exchange with Mr Bruckner of counsel, Dr Mares is recorded in the transcript (p.51) as stating:-

“I would see that we’re here to consider the question of whether Dr Lindsay poses a physical or mental health risk to the public. And in doing that, I need to listen to the way in which Dr Lindsay is giving his answers, the way in which he understands how he comes to be before the Board with all of these complaints to be heard by a Tribunal.”

62 It is sufficient to state, by way of summary, that several observations were made and recorded by the delegates in relation to two matters. The first related to the complex and convoluted and, at times, “inappropriate or unresponsive” answers given by Dr Lindsay to questions put to him during the hearing and an apparent inability at times to focus upon and deal with the point of questions. These “observations” by the delegates as related to patterns of speech observed were discussed in relation to what are referred to as “obsessional and paranoid personality traits”.

63 The second related to observations concerning what is characterised as the plaintiff’s sense of victimisation and his belief of the existence of an orchestrated campaign by various people and organisations, including the Health Care Complaints Commission, the Medical Board, the Royal College of General Practitioners, medical practitioners and former patients.

64 The delegates also described the plaintiff’s conduct as exhibiting a “grandiosity” which is said to be based upon statements made by the plaintiff (some of which are extracted in the reasons for decision) suggestive of an inflated sense of self-worth. Whilst the delegates did not consider such matters in themselves posed a risk necessitating action under s.66, it was considered they were “inappropriate” and “worrying” when viewed in conjunction with other concerns expressed by delegates in their decision.

(5) Attitude to complaints and the complaint process

65 The delegates refer to a matter related to (4) above in their reasons concerning the plaintiff’s attitude as being related to what was claimed to be his inability to fully appreciate and possess proper insight into previous disciplinary proceedings taken against him and to issues related to matters of judgment or insight.

(6) The plaintiff’s practice of medicine: patient history taking and record keeping

66 The delegates characterised the plaintiff’s approach to dealing with a high throughput of patients as having led to something of what they described as a rigid or automated method of practising. This approach did not, according to the delegates, admit of sufficient flexibility in dealing with patients leading to the creation of a risk to physical and mental health of persons attending the practice.

67 The issue of “practice” was specifically examined in terms of patient history taking and medical record keeping. The method of obtaining patient information or a patient’s history was largely based, the delegates observed, on the patient being requested to complete a ‘registration’ form. That form (a copy of which was annexed to Mr Solari’s last-mentioned affidavit, “KS4”, p.179) required, inter alia, patients to tick boxes in response to specific matters. Concerns were expressed by the delegates as to the ability of the plaintiff to identify the potential significance to treatment of pre-existing conditions in patients or medications prescribed for medical conditions. They, in particular, expressed concern as to the plaintiff’s ability to ascertain relevant details in respect of medications that could impact upon treatment given. This observation particularly concerned patients who had complicated medical histories.

68 The further observation made by the delegates related to what was asserted to be an inadequate emphasis by the plaintiff upon patient history-taking. This observation was made in the context of the plaintiff’s practice being one limited to treating skin cancer. Emphasis was placed upon the need for a practitioner to be alert to patients with complicated medical conditions (eg, heart valves or patients taking steroids) and their potential impact on treatment. A risk, it was noted, may arise by reason of inadequate history taking.

69 The plaintiff’s past disciplinary history, in particular it was noted, related to the issue of the adequacy or otherwise of his medical record keeping.

70 The concern expressed by the delegates related to the plaintiff’s ability to adequately address the risks arising from surgical procedures (eg, bleeding, the risk of infection, the experience of pain) prior to embarking upon the excision of lesions.

(7) The issue of impairment

71 The delegates’ conclusions about this issue went beyond expressing ‘concern’ as to the plaintiff’s mental health, although stopping short of expressing a concluded view. The reasons recorded (p.25):-

“The delegates believe there is enough evidence to suggest that Dr Lindsay suffers an impairment which detrimentally affects his capacity to practice medicine.”

72 The point made in written submissions of both parties was that this did not, however, amount to a concluded opinion that the plaintiff in fact suffered an actual impairment.

73 The ‘evidence’ to which reference is here made included the reports of Dr Allnutt. Those reports, in their terms, provided a foundation for the delegates in relation to questions put to the plaintiff during the ‘hearing’ in relation to issues concerning his mental health and the question of his need or otherwise for any psychiatric treatment. It also included the direct observation of the plaintiff during the course of the hearing. Those reports and the delegates’ own observations would, in my opinion, constitute some material upon which the delegates could make the above observation in paragraph [71].

74 The delegates noted that any actual impairment in a registered medical practitioner could give rise to a risk in two ways. The first was the risk of the impairment impacting on a practitioner’s perception, insight, thought processes and judgment. The second was due to any failure by such a person to seek medical treatment for a disorder can jeopardise the health and safety of patients.

The decisions under s.66(1) of the Act

75 The Board (or its delegates) acting under s.66(1) of the Act is required to determine two matters. The first involves a determination whereby it is “satisfied” that action under s.66(1) of the Act “is necessary for the purpose of protecting the life or physical or mental health of any person”. The second, in the event that the Board or its delegates reach such satisfaction, is to determine whether necessary protection of the life or physical or mental health of a person requires an order suspending a registered medical practitioner from practising medicine for a period or the less severe action, namely, the imposition of conditions on a registered medical practitioner’s registration.

76 In relation to both matters, the Board (or its delegates) is required to assess matters of risk, including the nature and extent of risk, arising from facts or matters (in particular, conduct) concerning a registered medical practitioner.

77 In the exercise of the powers of the Board for the protection of the public under s.66(1), a number of general propositions may be noted:-

(a) The decision process under s.66 may necessarily not involve the Board or its delegates in a detailed examination of factual matters subjacent to a complaint or complaints.

(b) An examination of that kind may appropriately be undertaken in proceedings before the Medical Tribunal. A Tribunal may exercise any power or combination of powers conferred on it by Part 4 Division 4 of the Act if it finds “the subject-matter” of a complaint against a person “… to have been proved” or the registered medical practitioner who is the subject of the complaint admits to it in writing to the Tribunal (or the Professional Standards Committee). As noted earlier, in accordance with s.161(4) and Schedule 2,Clause 1 to the Act, a Tribunal in proceedings before it is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit.

(c) The material relied upon the purpose of determining whether action should be taken under s.66 may include material that would not conventionally be considered as strictly evidentiary in nature, eg, complaints and allegations.

A similar aspect was considered in relation to comparable legislation in General Medical Council v Sheill [2006] EWHC 3025 (Admin) (Crane J). In that case, an order had been made under s.41A(1) of the Medical Act 1983 (UK) . Section 41A(1) was (in part) in the following terms:
“Where an Interim Orders Panel … are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the Panel may make an order:-
(a) that his resignation shall be suspended (that is to say, shall not have effect) during such period not exceeding 18 months as may be specified in the order (an ‘interim suspension order’); or
(b) that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order, with such requirements so specified as the Panel think fit to impose (‘an order for interim conditional registration’) .”

78 In his judgment, Crane J referred to the basis upon which an interim order could be made. In that respect, he observed that attention is to be given to the nature of the proceedings for such an order stating:-

“35. In my judgment, his submissions overlook the nature of these proceedings. They relate to an interim order. Neither the IOP nor the Court is embarking on a fact-finding exercise. In my judgment, the strict rules of evidence do not apply in the Court hearing. Both IOP and, in turn, the Court must look at the allegations made against the doctor. The Panel and the Court will expect the allegation to have been made or confirmed in writing, whether or not it has yet between reduced to a formal witness statement. The Panel and the Court will need to consider the source and the potential seriousness of the complaint. A complaint that is trivial or clearly misconceived on its face will clearly not be given weight. The nature of the allegations will be highly relevant to the issue whether conditions are sufficient.”

79 An inquiry, hearing or interview process conducted for the purposes of the Board or its delegates determining matters under s.66(1) could be considered to be preliminary or interim in nature or, as it was termed in the present proceedings, “interlocutory”. Such a process, in the present case, as earlier observed, did not involve the making of findings of fact or the determination of the merits of any complaint. Any observations or conclusions expressed by the Board or its delegates under s.66 following an inquiry, hearing or interview, are, and can only be, strictly for the limited purposes of s.66(1). Such observations or conclusions are not to be equated to findings on material questions of fact as may be made by the Medical Tribunal in proceedings conducted by the Tribunal under Part 11 of the Act.

80 The last-mentioned observation, of course, does not detract from the significance of an order suspending a registered medical practitioner from practising medicine for a specified period. Although the process of the Board or its delegates in performing its/their functions under s.66(1) differs in nature from proceedings conducted by the Medical Tribunal under the Act, the fact remains that an order under s.66(1) may severely affect a registered medical practitioner’s livelihood and career.

Procedural fairness

81 In the plaintiff’s written submissions dated 30 January 2008, there were a number of grounds set out in support of the plaintiff’s challenge to the lawfulness of the action purportedly taken by the Board pursuant to s.66. These were supplemented during the course of the hearing with further written submissions entitled “Plaintiff’s Submissions in relation to the delegation 31 January 2008” and “Plaintiff’s note on not going into the specifics or details of complaints” dated 1 February 2008. The submissions were generally supplemented by oral submissions on behalf of both parties.

82 It was not contended by the Board that the rules of procedural fairness did not apply to the s.66 “Inquiry” held in the present case. In some circumstances (eg, cases involving extreme urgency) the power under s.66 may be properly exercised ex parte: X v New South Wales Medical Board (1993) 32 ALD 330 (Levine J). The focus of the parties’ submissions in the present proceedings was upon what the rules of procedural fairness or natural justice required in the circumstances of the present case.

83 I turn to each of the grounds referred to in the plaintiff’s primary written submissions.

Ground 1: Denial of natural justice by refusal to specify which complaints and matters are to form the basis for the exercise of the s.66 power

Ground 2: Denial of natural justice by refusal to provide an adequate opportunity to prepare and refusal to vacate the hearing date

84 I will deal with these two grounds together.

85 On 23 November 2007, the Legal Officer for the Board wrote to the plaintiff’s solicitor and also to the plaintiff directly (Annexure KS-1 to the affidavit of the plaintiff’s solicitor, Mr Kelvin Solari sworn 13 December 2007) advising that the New South Wales Medical Board’s Conduct Committee at its meeting held on 13 November 2007 determined “to hold an inquiry pursuant to s.66 of the Medical Practice Act 1992 in relation to your client, Dr David Charles Lindsay”.

86 The letter of 23 November 2007 specifically referred to a complaint made by a patient, known in these proceedings as Mrs F, and that the inquiry would determine whether any action should be taken in terms of the section. The letter further advised that “copies of relevant documents would be shortly forwarded to Dr Lindsay and to the delegates and to any adviser Dr Lindsay nominated as assisting him in the matter”.

87 The letter also advised that any additional material that the plaintiff wished to have before the delegates should be lodged by 11 December 2007.

88 On 28 November 2007, Ms St Hill, the legal officer for the Board, telephoned and advised Mr Solari that documents would be forwarded in the next day or so.

89 On 28 November 2007, two folders of documents, numbered 1-13, were sent to the plaintiff.

90 On 7 December 2007, Mr Solari wrote seeking information detailed in his letter and “full particulars of the allegation” that action was necessary in terms of s.66(1). Mr Solari noted that the folders of documents received on 3 December 2007 “selectively touches on a broad range of issues”. Mr Solari stated that in order for him to be able to respond he would need full particulars of the allegation referred to above, in particular:-

(a) The identity of the “person” imperilled.

(b) Is it alleged that his or her life, physical health or mental health is in peril?

(c) How is it alleged to be so imperilled and in need of protection?

91 The remaining points ((2) to (5)) in the letter related to other matters, in particular:-

“(2) May Dr Lindsay be represented at the Inquiry and appear by a solicitor and counsel?
(3) Will the persons who have provided statements or other material be available for cross-examination?
(4) What procedures are proposed to be followed at the Inquiry?
(5) Your letter dated 23 November 2007 states that the complaint is considered ‘in the light of matters raised in the substantial complaints in relation to Dr Lindsay’s practice of medicine and his health, which have already been referred to the Medical Tribunal’. What material in relation to the principal proceedings has been made available to the delegates for the Inquiry?”

92 On 7 December 2007, Ms St Hill, on behalf of the Board, responded to Mr Solari’s faxed letter of 7 December 2007 in the following terms:-

“…
I refer to your faxed letter dated 7 December 2007.
Responses to the numbered queries in your letter are as follows:
1. The material that has been provided to Dr Lindsay with my letter dated 28 November 2007 is the material which the delegates of the Board will consider during the Inquiry to determine whether any action is necessary under s.66.
The issues listed a) to c) in your letter are matters for the Inquiry to consider.
The extracts of the Minutes of the Conduct Committee held on 13 November 2007 (behind tab 9 in the folder of documents) provides reasons why the Board has determined to inquire into whether action is necessary under s.66
2. Dr Lindsay may be assisted (by a legal representative/s or any one else he chooses to support him) at the Inquiry, but may not be legally represented.
3. The Board is not conducting an Inquiry into whether Dr Lindsay is guilty of unsatisfactory professional conduct or professional misconduct in respect of any complaint and does not propose to call witnesses.
4. The Inquiry will explore whether it is necessary under s.66 to take action to protect the public. The delegates will expect to communicate directly with Dr Lindsay and he will be given the opportunity to be heard in relation to any of the material that is before the delegates.
The Inquiry will be recorded.
5. The delegates that are conducting the s.66 Inquiry have been provided with the same folder of documents that has been provided to Lindsay.
…”

93 On 10 December 2007, Mr Solari again wrote to Ms St Hill. A number of matters were addressed including “refusal to provide particulars as to the referred matter”, “inadequate opportunity to defend matters arising in principal proceedings”, “inquiry in relation to further matters”, “failure to permit cross-examination”, “legal representation” and “conflicts”.

94 In the third last paragraph of the letter, Mr Solari wrote:-

“If the s.66 Inquiry is to proceed, then the scheduled hearing date of 14 December 2007 should be vacated, to permit a reasonable period for Dr Lindsay to prepare the matter. Without admission as to the validity of the decision to hold the Inquiry, I hereby request that the scheduled hearing date be vacated. I request your response by 5.00 pm on Tuesday, 11 December 2007.”

95 On 11 December 2007, St Hill responded in the following terms:-

“…
I refer to your faxed letter dated 10 December 2007, received by the Board on 11 December 2007.
I use the same number as you have used in your faxed letter to respond as follows:

The Conduct Committee in deciding to refer Dr Lindsay to a Section 66 Inquiry is permitted to consider previous matters concerning Dr Lindsay that have been before the Committee. However the delegates that will conduct the Section 66 Inquiry have so far only been provided with the folder of documents that has also been provided to you and Dr Lindsay in preparation for this Inquiry. Please note that in the event that they request further information or documents (which they are entitled to do), the same information or documents that may inform their decision will be provided to you and Dr Lindsay.
2. The extract of the Minutes of the Conduct Committee held on 13 November 2007 outlines the scope of the issues that led the Board to convene in Inquiry pursuant to section 66.
3. No response required.
4. The Board is not conducting an Inquiry into whether the facts of [Mrs F’s] complaint or the complaints that have already been referred to the Medical Tribunal are made out, nor whether Dr Lindsay is guilty of unsatisfactory professional conduct or professional misconduct in respect of any complaint. The issue before the Section Inquiry is as set out in point No 1.
5. Same response as point 4.
6. Same as points 1 and 4. With respect to the allegation concerning any denial of procedural fairness, your client will be given the opportunity to be heard at the inquiry and the delegates will carefully consider any relevant information that is provided by him.
7. No response required.
8. Any suspension, if considered necessary under Section 66 is not a ‘bringing forward’ of a final determination of matters which have been referred to the Medical Tribunal.
If the Board forms the opinion that it is necessary to protect the life, physical health or mental health of any person it may exercise its powers under section 66 at any time.
9. Same as second paragraph of point 8.
10. Whilst the Board could have advised Dr Lindsay of the decision to convene a Section 66 Inquiry sooner, such advice is meaningless in terms of notice if the date of the Inquiry is not also able to be advised. As soon as the Board was in a position to provide full details of the Inquiry it did so.
11. The Board relies on its public protective functions as conferred/imposed by the Medical Practice Act in determining to convene a Section 66 Inquiry in light of the matters set out in the Minutes of Conduct Committee held on 13 November 2007.
12. The Board does not agree with your assertion.
13. Same as point 4. The Section 66 Inquiry is separate to any preparation required by Dr Lindsay for the Medical Tribunal hearing.
14. No response required.
15. The Court of Appeal decision (tab 2 in the folder of documents) does make clear which particulars in the Spathis and Minogue proceedings were not proven, and specifies the costs orders made. The 2002 proceedings you refer to do not appear to be relevant to the question of whether it is necessary for the Board to take any action in relation to Dr Lindsay for the purpose of protecting the life or physical health or mental health of any person.
16. Dr Lindsay will have the opportunity to be heard in relation to the material that is before the Section 66 Inquiry. Should further material need to be considered the delegates may, in their discretion, consider an adjournment.
17. Same as point 4.
18. Same as point 4.
19. See point 2 in my letter of 7 December 2007. All practitioners who are the subject of a Section 66 Inquiry face the same possible outcomes.
20. Dr Reid and Mr Dix are not decision makers in this forum as they are not members of the Conduct Committee.
21. The blacked out information does not relate to Dr Lindsay.
Having considered the points raised in your faxed letter of 10 December 2007 the Section 66 Inquiry will not be vacated as you have requested.
…”

96 In relation to the request for particulars, there was, of course, no “charge” or accusation and no form of pleading outlining issues for determination. The non-statutory inquiry conducted by the delegates, accordingly, was not a process in the nature of structured litigation. That, of course, does not mean that a medical practitioner is to be left in the dark as to the matters to be inquired into in circumstances where the rules of procedural fairness have application. In such a case, however, he or she must be afforded sufficient information to participate in the inquiry: see Ross v Brown [1979] 1 NSWLR 114, 129 to 130 cited and applied by Wilcox J in Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494. See also Dainford v Independent Commission Against Corruption (1990) 19 ALD 207 (Young J).

97 It is, accordingly, necessary to assess the information and materials that were made available to the plaintiff in the present proceedings prior to the hearing taking place on 14 December 2007 and during the course of the conduct of the hearing. The information in that respect may be summarised as follows:-

(a) The letter from the Board’s legal officer dated 23 November 2007 advising that the Medical Board’s Conduct Committee had determined to hold an inquiry into the matters, the subject of the complaint by Mrs F and other complaints that had already been referred to the Medical Tribunal.

The letter advised that the matters noted by the Board set out in its letter “all raise significant questions concerning whether the immediate action by the Board is necessary for the purpose of protecting the life or physical or mental health of any person” .

The letter also advised that the Inquiry would determine whether any action should be taken in terms of s.66(2)(a) or (b).


(b) The plaintiff had previously been earlier advised of Mrs F’s complaint by letter from the Board dated 9 May 2007 which enclosed a copy of her letter of complaint dated 24 April 2007 and called for a response from the plaintiff within 28 days. Mr Solari replied to the Health Care Complaints Commission (HCCC) by letter dated 12 July 2007 in which he set out “the facts of the matter …” . On 9 October 2007, the HCCC sent copies of all documents that had been sent to the “expert reviewer” .

(c) The material constituting the two folders of documents received by the plaintiff and his solicitor on 3 December 2007 and advice that such material would be relied upon by the delegates during the Inquiry.

(d) On 11 December 2007, an extract of the minutes of the Conduct Committee held on 13 November 2007 outlining the scope of the issues that led to the Board convening the Inquiry pursuant to s.66 were forwarded to the plaintiff. The Board, in that letter, confirmed that the Board would not be conducting an inquiry into the facts related to Mrs F’s complaint or the other complaints.

(e) The transcript of the hearing of 14 December 2007 records questions and answers in relation to specific issues raised with the plaintiff including, in particular, the matters related to the “issues of concern” referred to in the reasons for decision given by delegates. These are considered in detail below.

98 The nature of the proceedings under s.66 do not, in my opinion, require the provision of particulars where, as in the present case, the material to be relied upon by the delegates set out the complaints, the particulars of complaints as set out in the Further Amended Notice of Complaint and the other relevant documents contained in the folder supplied to the delegates and to the plaintiff and his solicitor. The position in that respect is, of course, to be distinguished from proceedings in which a charge is made in criminal or disciplinary proceedings. In a case of the latter kind, it will be necessary for a person or body bringing a charge to identify in clear terms all charges to be relied upon, the relevant legislative provisions and rules governing jurisdiction, the particular grounds relied on and particular of the act(s), matters or allegations forming the basis of the charge and perhaps potential penalties involved: Judicial Review of Administrative Action, Aronson Dyer & Groves, 3 ed at pp.500 to 501. As the learned authors there observed, far less can be sufficient in cases at the other extreme, such as application cases, investigations and general inquiries into broad issues.

99 I have referred earlier to the significant adverse impact that can result from action being taken under s.66. That is a matter that must be taken into account. However, on the evidence, I have concluded that the Board did not proceed in breach of procedural fairness requirements by refusing to state or supply “particulars” as requested by Mr Solari in his letter of 7 December 2007. The subject matter of the Board’s Conduct Committee determination which led to the decision to hold an Inquiry had been identified, the particular complaint of Mrs F was well-known to the plaintiff. It had been the subject of detailed information furnished to the plaintiff earlier in the year through Mr Solari. The specific complaint material relating both to Mrs F’s complaint and the other complaints that had been referred to the Tribunal together with related documents were copied and supplied to the plaintiff and to Mr Solari and to the delegates and were later utilised during the course of the hearing.

100 During the hearing on 14 December 2007, the transcript reveals that specific areas of questioning were directed to the plaintiff for his attention and response. Details are referred to later in this judgment. In this way, he was given the opportunity of addressing issues related to his methodology, his clinical practice, particular issues associated with patient history-taking, his apparent ability or otherwise to make relevant self-assessments in light of complaints made, the nature and pattern and number of complaints, his responses to the complaints, including, in particular, his statements concerning alleged collusion between patients, statements conveying his sense of victimisation and his interpersonal communications with patients.

101 In the plaintiff’s submissions (in particular, from paragraphs 40 to 49), subject to a matter concerning steroids, there is no claim made that the plaintiff was taken by surprise on any particular or specific issue raised either in the documentary material or at the hearing or of any inability in the plaintiff to deal with issues raised with him. In paragraph 48 of the plaintiff’s written submissions, the following statement appears:-

“As a result of lack of notice, Dr Lindsay was unable to adduce material or make submissions on a number of issues which ultimately made their way into the reasons for decision, eg, to contest the delegates’ view on steroids which was revealed for the first time in their reasons for decision. The matters which would have been the subject of evidence and submissions are dealt with in the affidavit evidence of Mr Solari sworn on 23 January 2008.”

102 The general contention here made concerning lack of notice was supported by reference to the matter concerning steroids. The subject of steroids occurred in the context of the plaintiff’s approach in obtaining relevant medical history from patients. It was referred to in the delegates’ reasons for decision at p.21. It was directed to the issue as to whether medications previously prescribed and taken by patients could impact or be relevant to the plaintiff’s treatment of them.

103 In the discussion on these matters, the medication, Warfarin, was specifically raised by the plaintiff. The question of steroids (as in the case of Warfarin) appears as an illustration of the general subject matter referred to in [102] above which was raised and discussed with the plaintiff on the patient history-taking issue.

104 There is no evidence from the plaintiff to any other matter raised during the course of the hearing or in the report that was said to have taken him by surprise or placed him in a position of disadvantage. Mr Solari’s affidavit sworn on 23 January 2008, paragraph 4, refers to matters about which he says he would have presented information if given the opportunity. On the finding I have made on the issue of particulars, namely, that the issues relevant to the Inquiry were apparent from the information supplied, as it was made known to the plaintiff’s solicitor that if he wished any material to be placed before the Inquiry he should do so before it commenced, he had the opportunity to do so. Some of the matters referred to by Mr Solari in paragraph 4 of his affidavit (eg, expert evidence, factual matters in relation to complaints) may have been relevant to a hearing directed to the determination of facts or merits of the complaints. However, as had been clear, the Inquiry in question was not embarking upon a fact-finding hearing.

105 The plaintiff’s written submissions (paragraph 49) contend that:-

“The issues of concern apparently harboured on the part of the delegates were suppressed up until the conclusion of the Inquiry … and were only revealed in the reasons for decision dated 4 January 2008, p.8 …”

106 This contention comes close to a claim that the decision of the delegates was made and based upon matters that were not made known to the plaintiff and that he was thereby deprived of an opportunity to be heard. However, as an examination of the transcript of 14 December 2007 reveals, that was not in fact the case. The transcript (171 pages) records the specific matters that were raised and discussed with the plaintiff. Whether the exchange between the plaintiff and the delegates be properly described as a question and answer format or as a “dialogue”, the issues dealt with in the delegates’ reasons for decision and which are discussed later, were the subject of particular attention in the hearing. The issue of steroids, which has been separately referred to above, is an exception to that general position.

227 The submission for the Board was that once the delegation had been made by the Board, all that remained was for the Registrar to approve the appointment of two persons to exercise the (already) designated power. That approval cam by the Notice of Appointment, Exhibit D.

228 I consider that the submission of the Board in this respect to be correct. On the question of construction, Exhibit 5 and Exhibit D must be read together in purposive way.

229 The delegation of power under Part 4, Division 5 by the Board “to act” under those provisions of the Act having been made the appointment of the delegates by the Notice of Appointment, whilst authorising them to conduct an inquiry, did so “for the purpose of determining whether any action should be taken, either suspending or placing conditions …”, the power to so determine having been delegated.

230 Exhibits 5 and D read together in this way, in my opinion, supports the construction that the appointment was for the purpose of the delegates so determining pursuant to the delegation that the Board had put in place. A contextual approach in construing the terms of the Notice of Appointment (in light of Exhibit 5) is, in my opinion, best calculated to reveal the purpose and effect of each interacting to link the acts of general delegation and appointment. In doing so, one is, of course, mindful that the Notice of Appointment is not a statutory instrument and therefore not to be read as having legislative character.

231 I, accordingly, am of the opinion that the terms of the Notice of Appointment did not operate as was contended for by the plaintiff as a limitation on the general delegation under clause 3.4 of Exhibit 5.

Discretionary matters

232 In Lloyds v Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68, Priestley JA (with whom Mason P and Stein JA agreed) referred at [13] in the remarks of Kirby P in Ackroyd v Whitehouse (1985) 2 NSWLR 239 at 248 wherein it was stated that the Court “has often indicated a disinclination to provide discretionary relief in the nature of the prerogative writs against a single member of the Industrial Commission, where the facility of internal appeal has not been utilised”. Priestley JA went on to observe that (at 248):-

“… this disinclination applies to prerogative relief generally where the facility of internal appeal is readily available. The court’s practice appears to have been recognised by the explicit provisions of s.123 of the ADT Act. The court’s practice is not invariable; as Kirby P also said in Ackroyd , ‘the rule is neither inflexible nor universal. It is simply a sensible principle of restraint, allowing for the efficient and proper use of judicial time and of the remedies involved ...”

233 In NSW Breeding & Racing Stables Pty Limited v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494, Barrett J made observations on the preliminary question in that case as to whether the Court should decide the plaintiff’s application seeking judicial review with respect to two decisions of the Administrative Decisions Tribunal of New South Wales.

234 In that case, his Honour set out the relevant statutory provisions including, in particular, those providing for a statutory appeal. Following reference to the judgment of Kirby P in Boral Gas (NSW) Pty Limited v Magill (1993) 32 NSWLR 501 and other decisions referred to, his Honour observed at [16]:-

“… the message from those sources was consistent, namely, that ordinarily the judicial review jurisdiction will not be exercised where there is an alternative remedy by way of appeal; and that that general rule will be displaced only by ‘exceptional circumstances’. It was emphasised, however, that the judgment is one which must be made according to the circumstances of each case and that what I have termed the ‘general rule’ should not approached as if it were a statutory prescription.”

235 Barrett J then set out relevant considerations supporting the general approach referred to above as formulated by Kirby P in Ballam v Higgins (1986) 17 IR 131 at 132 as follows:-

“1. It recognises and gives effect to the legislative scheme provided by Parliament for internal appeals …
2. It affords a proper place to the specialised Tribunal which may have superior advantage in ready knowledge of the development of jurisprudence under scrutiny which this Court does not initially enjoy. Furthermore, that Tribunal frequently has a superior armoury or remedies at its disposal than this Court can offer;
3. Whilst it may involve the possibility of additional cost or delay, it affords this Court the advantage of having the opinion of the appellate tribunal should the tribunal determine the question of jurisdiction and should it still be the intention of a party to challenge jurisdiction;
4. It allows complete exhaustion of any additional factual issues which may be relevant to establishing the facts said to ground jurisdiction, which facts may more readily be determined below than in this Court; and
5. It conserves to cases where no other remedy exists, that discretionary and exceptional remedies provided by writs in the nature of prerogative writs and recognises the pressure of business in this Court, including in the exercise of its general supervisory jurisdiction.”

236 Although I have determined the grounds relied upon by the plaintiff in the present application adversely to him, I am of the opinion that, had the question of discretion arisen for determination, then, aside from the issue of delegation, on discretionary grounds it would have been properly open to me to have declined to exercise its jurisdiction.

237 The grounds relied upon by the plaintiff, in my opinion, raise matters that are best dealt with by the statutory right of appeal to the Tribunal. Whilst issues of procedural fairness may, in some cases, present a discrete issue suitable for determination in this Court (as in X v NSW Medical Board (supra)), in the present case much of the argument, in particular, the oral submissions for the plaintiff, was directed to the identification by the delegates of issues of concern which in turn involved matters of evaluation and expert opinion. The broad nature of the statutory appeal adequately permits such matters to be considered by the Tribunal comprised as it is by the Chairperson or a Deputy Chairperson and two specialist medical practitioners. The important issues, both from the plaintiff and the public points of view as to the appropriate type of action under s.66(1) (including matters argued in these proceedings as to proportionality) may be dealt with in the appeal that has been made to the Medical Tribunal in the light of any evidence adduced relevant to such questions.

238 It is also relevant to bring into account that any review of a Medical Tribunal decision by the Supreme Court would be by way of proceedings pursuant to s.48 of the Supreme Court Act 1970 to the Court of Appeal, not to a single judge of the Court. The benefits of this process of review was, as submitted on behalf of the Board, that allowing the statutory appeal process to takes its course results in additional benefits. These include, firstly, the fact that decisions of specialist Tribunals increases the body of decisions produced within the statutory system established by the legislature. Secondly, the Court of Appeal in those circumstances, will have the advantage of the decision of the specialist Tribunal in the event that judicial review of its decision is sought.

Conclusion and decision

239 For the reasons set out above, the plaintiff is not entitled to the declarations and orders sought.

240 I am satisfied that the Medical Practice Act 1992 makes adequate provision under Part 4 of the Act to seek alternative review of the action taken against him under s.66. Section 95(1) specifically deals with the issue of “supervision” and “extension of suspension by the Board under Part 4”.

241 The relief sought in the Further Amended Summons is accordingly refused.

242 I will provide the parties with the opportunity to make submissions on the question of costs and provide to my associate within seven days short minutes of order to give effect to this judgment and the order to be made as to costs.

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