Mann v Medical Practitioners Board of Victoria and Anor M45/2001

[2003] HCATrans 805

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M45 of 2001

B e t w e e n -

ARNOLD MANN

Applicant

and

THE MEDICAL PRACTITIONERS BOARD OF VICTORIA

First Respondent

JOHN HARTLEY SMITH

Second Respondent

Application for leave to reopen

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 JUNE 2003, AT 1.36 PM

Copyright in the High Court of Australia

MR A. MANN appeared in person. 

MR J. RUSKIN, QC:   Your Honour, I appear with my learned friend, MR D. MASEL, for the respondents.  (instructed by Victorian Government Solicitor) 

HAYNE J:   Now, forgive me, sir, do you prefer to be addressed as Mr Mann or Dr Mann?

MR MANN:   Either will do.  In Victoria, I am Mr.  In New South Wales, I am Dr.

HAYNE J:   Then we are in Victoria.  Yes, Mr Mann, you appear on your own behalf, do you?

MR MANN:   Yes, I do, your Honour.

HAYNE J:   Yes, Mr Mann.

MR MANN:   Your Honours, yesterday I received a copy of the latest Medical Practitioners Board Bulletin.  Unfortunately, I have not had a chance to file this with the Court because I only received it yesterday, but my learned friend has a copy of the document and he will no doubt let you know if I misquote it.

HAYNE J:   What are we to get out of it before you take us to the detail, Mr Mann?

MR MANN:   Your Honour, it is an attitude of the Board towards doctors who have problems with drugs of dependence.

HAYNE J:   Let that be assumed that the Board and others are ‑ ‑ ‑

MR MANN:   Yes, the Board suggested that such doctors should have breathalysers before they see their patients.

HAYNE J:   Yes.  Let me tell you the problem that I suspect that you have to address most directly with this application.  Let me interrupt you and begin by placing it on the table first.  As I understand it, you say that the judge who tried the action was at the time of trial disabled?

MR MANN:   Yes.

HAYNE J:   Am I right in understanding that that is not a point that was raised in the Court of Appeal, and it is raised for the first time here on this application today?

MR MANN:   No, your Honour, that is not strictly correct because, if your Honour reads the notice of appeal, there is a whole list of symptoms of this condition ‑ ‑ ‑

HAYNE J:   You complained to the Court of Appeal and renewed, on application for leave to this Court, the contention that the conduct of the judge took certain forms and revealed certain things, but all that, as I understood it, was put under the head of bias, either actual or apparent.  Am I right?

MR MANN:   I do not think that exclusion of evidence is necessarily an indication of bias.  It simply may indicate that the judge misread the whole case.

HAYNE J:   Could I tell you where I am going, so that you can see the problem that, to my mind at least – and I speak only for myself – but the problem you need to address.  The contention that the judge was disabled is, as I read it, not accepted by the other side.  It would be a matter of dispute ‑ a dispute which you say can be resolved but one way, the case being so clear.  But it would be a matter for dispute.  Why, and indeed how, could this Court on appeal entertain that argument for the first time in this Court?  It seems to me that, in its appellate jurisdiction, it cannot entertain that dispute.  That is the problem I have.  You should take such course now with the application as seems best to you.

MR MANN:   With the greatest respect, your Honour, when I put this sort of argument with a diagnosis attached, in the case of Magistrate O’Neill, I so discomfited the High Court who heard the appeal that I did not dare mention a diagnosis again.  I mean, one gets caught one way and then one gets caught the other way.  The 19 pieces of evidence that I have produced in this application merely reinforces what was obvious if the Court of Appeal had paid attention to what was being argued.

When, for example, I got to the Kidman Case and read out the section where Judge Hanlon was harassing Dr Kidman, his Honour Justice Brooking interrupted me and said, “Oh, well, you know, let’s get on with something else.”  Justice Brooking was not the slightest bit interested in anything I put before him.  Your Honour says that all this was heard, but Justice Brooking’s judgment was ready to be delivered before I even got to my feet.  I mean, I find that an extraordinary state of affairs.  If this is the sort of thing to which medical practitioners are going to be subjected to, I think it is a horrible state of affairs.

I mean, is there such a thing as being found innocent and then smeared, and it is claimed that this is done under privilege, when in fact the Medical Practitioners Act impliedly forbids the Board to do that.  It is the equivalent of a judge writing to one of the parties and saying, “I think X is actually guilty of manslaughter.  He has got blood on his hands, but we probably won’t find him guilty.”  Is that the way that this Board should conduct itself?

Now, I have reason to believe that the Board stopped doing that when Judge Scott gave his judgment concerning absolute privilege, but what the Board is being allowed to do is to go back to its old ways.  It can find a person innocent and then smear his reputation for all time.  That reputation that is smeared unjustifiably remains on the Board’s records for all time.

Now, it is all very well for Mr Justice Brooking to say, “Mr Mann seems to have, you know, got a bit upset about this” but no one is upset about someone else’s defamation.  I mean, I thought that the defamation of Justice Kirby was outrageous, but I cannot say that it affected me personally.  It did not make my heart race.  If doctors are going to be treated in this way – and they have no recourse.  Justice Kirby said, “Why did not you try the Administrative Review?”  Well, your Honours have read the judgment of Justice Osborn.  There was no review.  There is no avenue at all of getting justice.  All one gets is the law.  The law is thrown at one.

The authorities that have been quoted by my learned colleague include a matter before the Woollahra Council.  What on earth has that to do with the rights to a decent reputation of medical practitioners?  If I could just go on with what I propose to say, may I?

HAYNE J:   I have explained the difficulty I have, Mr Mann.  You should for the moment pursue the course you wish to pursue, but the difficulty I have at the moment is unanswered.

MR MANN:   Your Honour, I have given your Honours a copy of the article by Justice Kirby called, “Reasons for judgment”.  I draw your attention to paragraph 2 on page 1.  This will give your Honours some idea of what litigants face when they are before Judge Hanlon.  It is the most awful, dreadful experience that one can possibly imagine, if one happens to be on the side that Judge Hanlon does not like.  I also draw your Honours’ attention to the Court of Appeal’s decision in Kidman v Corstophoran.  On page 2 of that article, Justice Kirby delivers himself a scathing criticism of what had occurred in Brittingham v Williams.  His Honour said:

The Full Court of Victoria nonetheless dismissed the appeal from this tongue‑tied judge – 

your Honour – 

who thought he was a juryman.

As an aside, I might say, his Honour was fortunate that the matter did not come before the Medical Practitioners Board of Victoria.  His Honour continued:

I have no time for such judicial solemnities.  By their decisions, appellate courts set standards.  There is no remonstrance that carries its message so clearly as a reversal order which upholds due process.

I say amen to them.  Am I wrong to think that due process was a sine qua non in an all judicial and quasi judicial proceedings?  Now, I alleged in paragraph 27H of my statement of claim that the minute did not authorise the defamatory material delivered by the letters which culminated in the suggestion that I had, because I attacked a lawyer, lowered the standing of the profession in the eyes of the community by telling Mr Bailey what I thought of his unprofessional conduct.  Judge Hanlon allowed the evidence‑in‑chief of the defendants without interruption.

If your Honours now go to line 16 on page 456, your Honours will see a series of questions from Mr Ruskin set out to show the connection between the minute and the letters that counter my allegation.  At line 21, Mr Smith, the Board’s witness of the facts, says that the letters were created from notes and jottings at the meeting on 3 October 1996.  At line 24, Mr Ruskin asks:

Does the minute purport to encapsulate every aspect of a recommendation? –

“No” is the reply, and the witness continues and says:

The minute is just trying to give a thumbnail – 

I think he meant thumb ‑ 

sketch of what was determined.

In this way, Mr Smith explained that the writers of the letters had not gone beyond what the Board had decided and dealt with the point I had made in my pleadings.  As the letters represented the full decision, and not the explanation, as Mr Ruskin keeps on telling the Court, counsel knew it was a decision made unlawfully and this raised seriously the question of whether qualified privilege attached to the decision containing letters, made completely outside the procedures set down in the Medical Practice Act.

So in sworn evidence, not contradicted by any other witness, the letters are decisions in full.  In every submission made about these letters, senior counsel says, the letters were explanatory and the Board have the right to explain – and, of course, “explain” has a broader area of qualified privilege than a decision made unlawfully.  Justice Kirby did not accept that.  His Honour said, I had been rebuked and denied natural justice.  His Honour was right.  If one looks at the words which I have underlined on pages 237 to 240, one sees that these words are not explanations.  They are as Justice Kirby saw them.  They are defamatory assertions which were part of a decision rebuking me and cautioning me.  They are not, as Mr Smith inferred, explanations for the minute.  They are the decision.

There is no analysis of the allegations made by Mr Bailey or by me explaining why the assertions in the letters were made.  If the truth be told, the only thing which these Board assertions explain is the state of mind of Board members and the petty control they wish to impose on practitioners writing to lawyers.  Because I have used such words as “brazen audacity” and “blundering along”, the Board had to deliver itself of a decision longer than the one it did in Fosberry, which I have given your Honours, where the doctor had had coitus with a non‑consenting female and then went into the waiting room area to have a cigarette with her husband.  But, of course, one has to have a sense of proportion; rape is one thing, and speaking not nicely to an unprofessional lawyer is another.

Your Honours will note that there is no mention in the Fosberry decision that the whole profession had its reputation lowered by that gross breach of professional conduct.  A glimmer of the absurdity of the Board’s whole position dawned on Judge Hanlon on 12 October.  It may be that his Honour had not read any of the Bailey‑Mann correspondence before then.  Be that as it may, his Honour described the attitude of the Board as being prissy.  Regrettably, that is about the only statement his Honour made in that judgment with which I could agree.  But had senior counsel for the Board shown that his first duty was to the court, Judge Hanlon would perhaps not have fallen into error of believing that the decision letters were merely explanations, which is how Judge Hanlon treated them, despite the evidence adduced by their own counsel.

Why Justice Brooking accepted Mr Ruskin’s flat denial of Mr Smith’s sworn evidence, I do not know.  I know no more of his Honour than was presented on two occasions, on both of which he fell into serious error.  He certainly did on the first occasion.  He would not even listen to anything I had to say, but while my acerbic criticism of Mr Bailey is deemed unacceptable, the Board has no hesitation in describing my truthful allegations concerning Dr Breen’s genteel racism as scurrilous.  If I have time, I will come to that.

I can find no effective euphemism to describe this kind of behaviour by a Board which is supposed to uphold the ethics of the profession.  I believe that truth, justice and adherence to just laws are at the root of all ethical systems.  The Board has scored a zero on all those, as far as I am concerned.  Interestingly enough, scurrilous was the word used by Bishop Heenan of Brisbane in describing the complaints that Sandra Pollard made about the priesthood.  Bishop Heenan has, however, redeemed himself by apologising.

Your Honours, I respectfully submit that the Court cannot allow us to go back to medieval codes of judicial and quasi‑judicial conduct.  This travesty of justice has been imposed upon hundreds of practitioners since about 1986.  It cannot continue, since one cannot set aside a decision of innocence even when smeared with unsavoury comment.  Your Honour should agree with Justice Osborn, who, during argument, said that this was a defamation matter.

This Court should now order a new trial, where the conduct of the defendants can be properly scrutinised and not pushed aside because Judge Hanlon said he was not a court of review.  If the conduct of the defendants is not an issue in a defamation trial, what on earth is?  Best of all, of course, would be to set aside the decision of the Court of Appeal and award damages of a magnitude that would send the message to all disciplinary boards of all kinds, namely, that due process and natural justice are not discretionary methods of dealing with complaints.

Of course, although Justice Kirby agreed that I had been denied natural justice, his Honour stated, when I was last in this place, that the right course to have pursued was administrative review.  The judgment of Justice Osborn, which begins in volume 3 at page 669 and to page 676, line 19, in particular, does not support that contention.  So do we have no rights of redress at all?  Of course, I have never been able to see how one can set aside a determination of innocence, so obvious that it did not need a hearing, even when accompanied by an unjustified smearing defamation.

I draw your Honours’ attention to the case at volume 2, page 560 to show you just how serious are the Board’s misdemeanours.  I had asked for discovery of all the cases in a particular six month period where no hearing had been held and the Board had made a decision.  This doctor was found guilty of unprofessional conduct without a hearing.  Guilty of unprofessional conduct.  This is the sort of regime under which I and all others doctors in Victoria live.  It is outrageous.

Your Honours, I cannot sit down without referring to the way in which case has been conducted by the Board.  The Board has submitted that the letters were merely explanatory, even though its own witness testified that the letters recorded the full decision of the Board.  As the Court of Appeal in Victoria does not allow the unrepresented litigant to prepare the summary for the court, the Board buried my pleadings in a short paragraph 29.

Justice Brooking said there were 97 pages or something of pleadings of these – sorry, 90 pages, of which 47 were the Board’s, mind you.  He did not mention that.  But my pleadings are buried in paragraph 29 of the summary in the Court of Appeal.  The whole Radio National interview which recorded Dr Breen’s words were devoted to the unfair way in which foreign graduates were treated, and when Dr Breen was asked at appeal book 564, line 32, whether it was a matter of in which country the doctor was trained, he answers at line 34:

Oh, it’s more than that, it’s culture, it’s attitude.

Yet some of the very same doctors, about whom Dr Breen spoke, had been treating Australians before they became Australian citizens – sometimes for several years.  Had their culture suddenly made them unable to treat patients, when it had not prevented it before?  That is why Senator Puplick criticised Dr Breen in the same program, appeal book 573, line 44, saying that deregistering  practitioners could not be used to resolve “a labour market question”.

To be sure, a normal practising Muslim cannot be a Catholic priest, but it does not disqualify from being a medical practitioner.  The very essence of racism begins with one being shut out, marginalised or hounded in one way or another for something about which one can do nothing, for example, the colour of the skin, sexual preference, one’s personal culture or the fact one happens to believe in a minority religion, which has nothing to do with the ability to perform a particular job.  And yet, I am accused of scurrilous conduct by the Board, not once but four times over this issue, four times during the course of the proceedings.

No Jew living in the Diaspora completely escapes being taunted.  I gave an example of that in my evidence, but this is the first time that I have been baited about racism by another Jew.  I am appalled by what has occurred in this whole case from the time the Board wrote its letters.  I am alarmed that the Board is allowed to maltreat practitioners in the way it did, in total disregard of the law, at least until the time of Judge Scott’s first interlocutory judgment, when it came to realise that it did not enjoy absolute privilege or reckless conduct.

HAYNE J:   Thank you, Mr Mann.  We will not trouble you, Mr Ruskin.

The applicant advances no sufficient reason for reopening the application for special leave.  Insofar as he seeks to raise a contention that the judge who tried the action in the County Court was at the time of trial disabled, two matters are to be noted.  First, this contention was not made, at least, in that form, to the Court of Appeal or to this Court when the application for special leave was first made.

Secondly, some of the events to which the applicant now points were advanced in support of contentions about bias, though there are some later occurring events upon which he would seek to rely.  The conclusion which the applicant would have drawn from the conduct of the trial is, however, neither admitted nor established by the judgments of the courts below.  They are not matters into which this Court could inquire in an appeal from the orders made by the Court of Appeal.

For these reasons, the application for leave to reopen is refused and is refused with costs.

AT 2.00 PM THE MATTER WAS CONCLUDED