McBride v Walton

[1995] HCATrans 23

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney           No S120 of 1994

B e t w e e n -

WILLIAM GRIFFITH McBRIDE

Applicant

and

MERRILYN WALTON

Respondent

Application for special leave
to appeal

MASON CJ
BRENNAN J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 FEBRUARY 1995, AT 9.33 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:   May it please the Court, I appear with my learned friend, MR P.L.G. BRERETON, for the applicant (instructed by Blake Dawson Waldron).

MR J.BASTEN, QC:   I appear for the respondent, if the Court pleases (instructed by D.W. Swain, Solicitor for the New South Wales Health Department).

MASON CJ:   Yes, Mr Bennett.

MR BENNETT:   If the Court pleases, your Honours, the primary point which arises in this case is this, in Smith’s Case, Smith v NSW Bar Association, this Court decided that in a disciplinary proceeding, the Tribunal may not take into account a finding that the practitioner lied in evidence in front of the Tribunal as a matter going to character and as, in effect, an additional ground, unless there is an amendment.  That part is clear.

In this case there was an application for an amendment which was refused and on three occasions including that one, the Tribunal ruled that the material could not be taken into account on character.  It is then put by the respondent, and conceded by the applicant, that if the practitioner alleges reformation, if he says, “Yes, I was” or “The Tribunal may find that the acts alleged against me many years ago demonstrate that I was then of bad character, but I have reformed.  I have changed my ways.  Here is the evidence of my reformation”, then one may use materials such as that in answer to that submission.  That is not in issue in this case.

What is in issue in this case is where the practitioner says, “I was then and always have been of good character, and in order to demonstrate that, I point to the fact that all you have found against me and all that has been proved against me is the original act”, can one then use material such as a finding of lying in front of the Tribunal to answer that submission?

That is the issue and in this case, that is what was done.  We submit that that gives rise to all the problems which were referred to in Smith’s Case, particularly those referred to by Mr Justice Deane, who concurred in the result, but added some matters which the other court did not find it necessary to deal with.

I have prepared some short notes which summarise the way we put it and might I hand those to the Court. 

BRENNAN J:   You make that division,that tripartite division sounds so terribly neat, Mr. Bennett.

MR BENNETT:   I am sorry, your Honour.

BRENNAN J:   You make that tripartite division of the nature of the problem so terribly neat.

MASON CJ:   It is a tribute Mr Bennett to you skill as an advocate.

MR BENNETT:   In my submission, it is a clear division.  It is a precise division.  Really, the issue arises for this reason, that what is in it, the issue before the Tribunal is, what is the character of the practitioner?  Is he of bad character, is he not of bad chacter?  Where the submission is made, “He has always been of good character and look, there is only the one incident”, that is just a traverse.  If that lets one bring in all the additional material without particularising it and without it being part of the charge, every vice in Smith’s Case applies and that is really the beginning and end of the point.

BRENNAN J:   But if one looks at the findings, the several findings that are made prior to page 51 and then the conclusion at that page, the point that you are making really does not emerge with the clarity, I suggest, that ‑ ‑ ‑

MR BENNETT:   If your Honour goes to the conclusion on page 72, your Honour sees the way it is done.  It says:

The Tribunal has agiven anxious consideration to the material placed before it on the question of Dr. McBride’s character and with profound regret has come to the unanimous view that the particulars found proven in Complaints 9 and 10 establish to its comfortable satisfaction that Dr McBride is not of good character.

If they had stopped there, that might have been sufficient.  But it then goes on and discusses various other matters and then it talks about flaw in character and matters of that sort and then at the bottom of the page at line 20:

The trait of dishonesty was again demonstrated -

and then five matters are mentioned, none of which were part of the complaints against us.  This is what we protested about and nevertheless, they are included. And then the five matters are mentioned, the last one is the conduct before thie Tribunal.  All of those matters are matters which were not part of the particulars against us and which, in my respectful submission, simply were not available to be used.

It is a serious denial of procedural fairness for the reason given by Justice Deane in Smith’s Case, because the one thing that would be terribly unfair in those cases, and indeed no doubt that is why leave to amend was refused here, is to require the practitioner to defend himself against the primary charge and at the same time defend himself against a charge that he lied before the Tribunal in relation to his denials of it.

For example, if he was charged on a separate and subsequent occasion with perjury before the Tribunal, one thing that might be put - and I put this by way of example - is some sort of mental block in relation to the matter; some sort of obsession in relation to it.  But one could hardly put that at the same time as one was denying the original allegations and asking the Tribunal to rely on the practitioner’s oath against that.  That is the vice in this practice which is referred to in my friend’s submissions, of Tribunals regularly looking at this sort of material.  It was for that reason that in Smith’s Case the Court expressed a firm view about it.

MASON CJ:   How does the denial of natural justice operate in relation to the final conclusion to which the Tribunal came because if you look at the first paragraph on page 72 to which you have directed our attention, the Tribunal concluded without taking that matter into account, the questionable matter:

that Dr. McBride is not of good character in the context of fitness to practise medicine.

MR BENNETT:   Yes.  Well, first of all, that is a statement made which encompasses, we would submit, as the first paragraph of the conclusions, all that follows including the paragraph at line 20.  That is the primary submission, that they have taken it into account and one cannot go back into their minds and say, “Well, if you had not taken that into account and if you had taken into account the practitioner’s submission, which was a basically exempliary life, a high public profile in relation to research, great generosity in relation to donation of prizes to research - matters of that sort, and nothing else found against him” except one minor matter which was in relation to one matter as to which he was repremanded, but leaving that aside, the ‑ ‑ ‑

MASON CJ:   When you look at the precise expression of what the Tribunal says in that first paragraph, it is limited to the particulars found proven in complaints 9 and 10.

MR BENNETT:   Yes, but your Honours, not only does that ignore the paragraph, but also, it follows a section on pages 69 to 70 under the heading, “Was the conduct an isolated episode?” and the discussion there relates to again, the subsequent events which it was not entitled to take into account.

TOOHEY J:   That is borne out I think to some extent by the first line of that conclusion which just speaks of the material placed before it, presumably the material at large, whatever it might be.

MR BENNETT:   Yes, and one only really comes to the opposite conclusion, if one takes the second part of that first sentence on its own, and reads that as a complete conclusion without regard to what is before it or what is after it.  But in my respectful submission, once material that ought not to be taken into account is taken into account in relation to a major submission made on behalf of the practitioner, the natural justice problem arises.

BRENNAN J:   Mr Bennett, complaint No 9, which is set out at page 40, involved consideration of the Langman rabbits, did it not?

MR BENNETT:   Yes.

BRENNAN J:   On page 22, the Tribunal identifies the material relevant to the question of the Langman rabbits and puts it under various headings which it then proceeds to consider.

MR BENNETT:   Yes.

BRENNAN J:   Now on pages 71 and 72, is it, the pages at which that part appears where they identify the matters which you say were not particularised.  Do they go anywhere outside the facts that were referred to on page 22?  In other words, was not it involved in complaint No 9?

MR BENNETT:   No, your Honour.  The first was, the others were not.  The others all relate to subsequent matter and the last actually relates to the evidence before the Tribunal, but they all relate to subsequent events not referred to there.

BRENNAN J:   I am not making my point clear.  Yes, they relate to subsequent events.

MR BENNETT:   Yes.

BRENNAN J:   All of which had a relevance to complaint No 9? 

MR BENNETT:   Yes, your Honour.

BRENNAN J:   They therefore consider the material which was relevant to complaint No 9 and in summary they say:

With reference to that material, we say complaint No 9 is well made out.

Where is the absence of natural justice?

MR BENNETT:   Because, your Honour, what they are saying is, in addition to complaint No 9, there is the subsequent conduct, in effect, of lying about the subject matter of complaint No 9 before the Tribunals on other occasions.

BRENNAN J:   Even though that is itemized as No 13 of page 22.

MR BENNETT:   Your Honour, but in any event, No 13 is clearly not part of the particulars.  Indeed, I am sorry, I have not made myself clear either.  None of the matters on page 22 were particularised as separate matters of charge.  The charge was, the false matters in the experiment in relation to the Langman rabbits and that was all.  That and its particulars relate to the original events and not any of the subsequent conduct in relation to it.  So what is done is to take all that subsequent conduct and to say, although that is not particularised separately, these are matters which rebut the practitioner’s submission that this is an isolated incidence and therefore he is generally of good character, not withstanding one lapse.

He is not given the proper opportunity to deal with that as a matter charged against him and that is made worse because of the final one, the lying to the Tribunal which is referred to, as your Honour points out, as No 13 in the earlier list at the bottom of the page and referred to specifically in relation to the matters in the conclusion.

So we would submit that that first of all involves matter which may not be taken into account.  There was a denial of natural justice on it and a substantive problem, because on the substantive finding, material which is not particularised is used against him.  I stress that a case based on reformation was expressely eschewed so we are not in the category of someone saying, “There has been a change in my character”.  We are in the category of someone saying, “I am of good character as a general matter.  You have charged against me one thing and that is all”. 

One must remember, your Honour, in the context of this case as your Honours saw from the judgments, this was a case where there was a raft of other allegations,  virtually all of which were dismissed.  What was found against him was a very small part of an overall whole.  What was found against him apart from the minor matter in relation to which he was repremanded was the single incident of what was described as scientific fraud and wreckless indifference in relation to an occasion in the United States where he gave evidence as an expert witness on that subject, but that was all.

Our submission in relation to the fact that all these other matters were not found, despite an attempt to dredge up everything that can be thought of against him, nothing else has been found, is then rebutted and answered by reference to material which is not part of the complaints.  That, in my respectful submission, has exactly the same vice as proving unparticularised material and then it being relied upon.

That, your Honours, we would submit is the point of Smith’s Case.  I am reminded also that the material on page 22 was in the context of considering his credit.  We do not dispute that the material can be used on credit but it cannot be used the way it was used as substantive matter in relation to character.

Your Honours, the other issue is the issue raised in Mr Justice Kirby’s discenting judgment, which is the issue about whether there was evidence on which the finding could have been based and we simply point out these matters.  There was no finding of a base motive for the original conduct.  It was an isolated incident.  The allegations in relation to the United States proceedings involved “wreckless indifference or an exclusable carelessness” were the words used, rather than deliberate dishonesty, but in any event the Tribunal did not rely on that, but the conduct arose out of his role as a scientist, rather than his role as a medical practitioner.

Now of course one can look to the conduct outside one’s profession to see if one is of good character.  No one can dispute that, but certainly when one looks at the relevance of the conduct overall, its status in that regard certainly makes it of less significance and the irony of this order is, the irony of the striking off - a tragic irony in a way - is that he is free to go into any laboratory and do any experiment he wishes to do but he is not free to practice medicine in relation to which all the complaints were dismissed apart from one incident in relation to which he was repremanded.

In my respectful submission, that rather points up the question as to whether in this case, an isolated incident of this kind is sufficient.  Mr Justice Kirby’s reasons for saying that, in my respectful submission, demonstrates that that is, within the meaning of Hope v Council of City of Bathurst, an error of law with which the Court may interfere.

I should say this too, the medical case made against him, or put against him, was that he was doing dishonest diagnoses as a doctor and all the allegations of that were dismissed and dismissed resoundingly with a very firm decision in his favour.

TOOHEY J:   Mr Bennett, can I just ask you this.  If special leave were granted, in terms of the orders sought as they appear on page 295, there would be a complete resolution of the matter without the need for it to go back.

MR BENNETT:   Yes.

TOOHEY J:   But that may not be the only possibility.  Another possibility might be that it go back to the Court of Appeal, although there is perhaps not a lot to be achieved by doing that.  The other possibility which is alarming is that it go back to a Tribunal; alarming in the sense, given the long history of this matter, you would really have to make good - to avoid that possibility you would have to make good a case such as to justify this Court really in setting aside the findings of the Tribunal and substituting its own conclusion.

BRENNAN J:   Yes.  That is the importance of the second report.  But if your Honour is suggesting we ought to amend the orders sought ‑ ‑ ‑

TOOHEY J:   No, no.  Not for a moment.  I am just canvassing with you the possibilities, one of which is that you might make good some of your argument, if special leave were granted, but the only way of resolving the matter might be to send it back to a Tribunal.

MR BENNETT:   Your Honour, that would be an unfortunate result.  It is a possibility. The primary submission,

of course, is that that would not follow, that this Court would be in as good a position as the Tribunal having seen the material, to express a final view.

TOOHEY J:   Well it might not be in as good a position on that second point, namely the availability of evidence. 

MR BENNETT:   It would depend which of the grounds I succeeded on, yes, your Honour.  If I was to succeed on the first ground, it might be; on the second ground, it might not be.

MASON CJ:   Mr Bennett, the grounds seem to be drawn according to the Victorian approach, namely, you throw in every conceivable ground of appeal.  Perhaps you might have a look at the grounds and indicate to us what would be sufficient to give effect to your first point if, in fact, the Court was minded to limit the grant of special leave to the first point.

MR BENNETT:   Would your Honours wish me to do that today, or would your Honours be content if that were done ‑ ‑ ‑

MASON CJ:   No, I think that ought to be done today, if we can do it.

MR BENNETT:   I will do that, your Honours, if I may, while my learned friend is ‑ ‑ ‑ 

MASON CJ:   Yes.  Mr Basten.

MR BASTEN:   Your Honours, the difficulty, with respect, in the tripartite approach is an important difficulty because when my friend says that the applicant’s case was that he was then and always had been of good character, it does not address the problem that arose for the applicant once there was a finding against him, on the first limb of the argument, namely that he was not then of good character.

The applicant persisted with the line that he was now of good character and therefore that the complaint should not be upheld.  That involved a consideration of whether, either through the passage of time or subsequent good conduct, his trait had been overcome and with respect, it is not correct to say that the applicant’s case was always that there was simply an isolated incident.

Once that had been found against him then all the subsequent issues became of relevance.  That that was accepted by the applicant before the Tribunal appears from the quotation in Justice Handley’s judgment at page 149 at about point 18.  His Honour says in the sentence beginning in the middle of the page:

The adverse findings related only to the Article and Note and his counsel submitted that in the ten years since “there has been no manifestation of similar misconduct which suggests that the misconduct in question is not characteristic or typical of Dr McBride”.

The misconduct of course revealed a trait of dishonesty.  All the subsequent material went to the question of continuing dishonesty.  If I might, to return to the passage in the conclusions at pages 72 to 73, there are two points which may be made in relation to that material.  First, this is as it says, a conclusion, so that the reference to material in the first line must be read in the light of the previous discussion.  The material in relation, for example, to the Langman rabbits at page 22 involved all of the material which was relevant to a finding in relation to that complaint.

It did, of course, involve a question of credibility.  But, having said that, what the Tribunal then does in that passage is to state that the particulars have been found proven.  It then notes a question of the evidence of good character in the second paragraph which of course is relevant.  It then says in paragraph 3 on that page:

Dr. McBride’s conduct in causing the publication of the Article in its fraudulent form was not -

and then it dismisses the various alternative possibilities, and the paragraph concludes:

His acts demonstrated a course of conduct of premeditated deception in the field of medical research and indicate a serious flaw or defect in his character, a trait of dishonesty.

One which, in my submission is not ambiguous as to the question of the ultimate finding.  The Tribunal then notes that:

The lack of all sense of intellectual and moral honesty which this episode reveals.....is most reprehensible and demonstrates a lack of good character in the context of fitness to practise medicine.

Now up to that stage there is no reference to the subsequent false statements and lying.  The Tribunal then says:

This trait of dishonesty -

already established, I interpose -

was again demonstrated -

and lists the various matters in which the continued false conduct continued, and over the page at about line 10, having considered those matters, the Tribunal says:

In determining what would be an appropriate order under s32 of the Act the Tribunal is required to consider -

and so on.  And it is in the paragraph in the middle of the page:

Although the proven misconduct occurred some eight years prior to the lodgment of the Complaints, the Tribunal is required to consider the present fitness.....In assessing present fitness to practise it is necessary to consider the conduct of Dr. McBride over the intervening years up to the present time to determine whether, since the episodes of proven misconduct, he has retrieved his good character and is now a pracititioner -

in whom trust can be reposed.  So it is at that stage, and correctly in my submission, that the Tribunal takes into account the question of how they should determine an order and in that context, they do look at the lies which they found he has engaged in in his evidence. 

That is an entirely appropriate manner to deal with the matter.  It involves no procedural unfairness and indeed it was an approach which was always accepted as one which was a relevant and appropriate approach and that appears, with respect, from the quotations from the argument, and indeed Mr Brereton’s argument as counsel for the applicant, set out by Justice Powell at pages 208 through to 210, and also by Justice Handley at page 160.

It was, in my submission, never in issue but that this material would be relevant in relation to retrieval of character.  The question of retrieval was always an issue because Dr McBride never did concede that he was not a person of good character in the present time.  His evidence in that regard was obviously evidence which could be rebutted and that was not a matter which was in issue.

Your Honour, those are my submissions on the question of the procedural unfairness point.  In relation to the other matter, my friend makes, in effect, a no evidence point in relation to isolated incident.  He says there is no evidence that this was other than an isolated incident.  The point is the same put another way, with respect, because immediately it is said that this is an isolated incident of dishonesty ten years ago, one is entitled to see whether the trait has indeed continued and is evidenced by subsequent conduct.

The claim of isolated incident is, in effect, one that though dishonest in 1982/83, there is no evidence of subsequent dishonesty.  The material comes in relevantly and precisely the same way in relation to that claim.  My submission is that special leave should be refused.

MASON CJ:   Thank you, Mr Basten.  Yes, Mr Bennett.

MR BENNETT:   Your Honour, my friend’s submission confesses an avoidance.  The whole of his submission accepts that the finding of law which is made in this case is that where the practitioner says, “This was an isolated incident and I am of good character generally”, that is sufficient to justify the proving of matters not particularised to prove bad character.

That is squarely in the third category which I opened.  Your Honours, in my respectful submission, the fact that my friend says that this is something which is always accepted - which we do not conceed - but if that were so, that would make it all the more important that that heresy be set aside by this Court, because that is, we would wish to submit, contrary to the majority of Smith’s Case, but certainly contrary to Justice Deane’s views in Smith’s Case. 

The other matter is this.  My learned friend submitted that reformation was an issue.  Might I just hand to your Honours some extracts from the transcript to show that it was clearly conceded that it was not.  I do not know if your Honours wish me to do it.  I can take your Honours in this to a number of passages where Mr Brereton concedes he does not rely on reformation and where Mr Basten refers to it in the Tribunal.  Does your Honour wish me to deal with that?  Page 139 first at about point 3, the fifth line of the first full paragraph at the middle of the line:

If I may summarise the discussion which took place between your Honour and me immediately before the luncheon adjournment, the matters which have taken place since the events in question probably deprive Dr McBride of a sumission that though he was then of bad character, he has since reformed.  They do not deprive him of a submission that he never was of bad character and that, I think, puts in a nutshell the discussion which took place between us.

Then at the bottom of page 151 there is a paragraph beginning:

Now, in the prsent case -

which puts the central submission about defect of character and at page 159, the first full paragraph:

I accept that the absence of repentence, if that be it, deprives Dr McBride of his submision that having been of bad character in 1981 he has now repented and is no longer of bad character, but it does not deprive me of the submission he makes in his case and that is notwithstanding the findings of fact he is and always was of good character because the matters found against him are not characteristic or typical of him.

So the distinction was clearly put.

BRENNAN J:   What does that mean?  That means you can find that I engaged in this scientific fraud, but that does not say anything about my character.

MR BENNETT:   No, your Honour, if there is a single incident in a person’s life, one must decide whether or not that incident establishes bad character.  In seeking to rebut that, one can rebut it in two totally different ways.  One is to say there is that incident, there is nothing else, my life has been exempliary otherwise, therefore overall, I am not of bad character, notwithstanding that being proved against me.

The other way, which was not done in this case, which might let the material in, is to say, “Yes, I was of bad character.  I have seen the error of my ways and I have now attoned for it and I have now reformed.”

BRENNAN J: The Tribunal finds yes, you were of bad character, have you seen the error of your ways.

MR BENNETT:   Yes, but that was not the submission made by the practitioner.

BRENNAN J:   It might not have been the submission, it was the finding that was made by the Tribunal.  The Tribunal found that he had been of bad character.

MR BENNETT:   Yes, but it found that, your Honour, by looking not only at the original actions, but also at the subsequent events which were not the subject of complaints against him and that is the issue, your Honour, and the issue is, can it do that.  Before Smith’s Case, Tribunals did it all the time.  We submit that Smith’s Case has demonstrated that one cannot do it and that is the problem in this case.  May it please the Court.

TOOHEY J:   Mr Bennett, could I just put this to you, again in relation to a possible outcome.  If the Court were minded to grant special leave but to exclude the evidentiary aspect so that it rested upon procedural

fairness, is there any way, realistically, that the Court could avoid it going back to the Tribunal if it upheld the appellant’s arguments?

MR BENNETT:   It would be difficult, your Honour, because there would have been no decision on the primary question of good character or bad character.  One could go back to the Court of Appeal for that or to another Tribunal.  It may well be that a second hearing would be considerably shorter than the first one for a number of reasons.  The issues would be much more limited, indeed it would almost only be the second leg of the hearing in one sense, which was not a lengthy leg.  Perhaps one could go back with certain matters remaining and certain matters not remaining so as to achieve that result.

In relation to the questions your Honour the Chief Justice asked me about orders, orders 2.1 to 2.6 are the ones which relate to the first matter, but if your Honour gives me until 2.15, I can reduce those to one or two more succinct paragraphs.  Those are the ones which relate to the first matter.

MASON CJ:   The Court will give its decision in this matter at 2.00 or 2.15 pm, depending upon the time to which the Court adjourns.

AT 10.08 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.24 PM:

MASON CJ:   Having regard to the material before us which indicates the course of proceedings before the tribunal and the terms in which the tribunal expressed its conclusion with respect to the scientific fraud complaints and the reasons for its determinations and orders, we are not satisfied that the applicant’s submissions that there was a denial of natural justice enjoy sufficient prospects of success on appeal to warrant the grant of special leave.  We consider that the Court of Appeal’s view as to the sufficiency of evidence to support its conclusions was correct.  The decision to refuse special leave on the no evidence point is unanimous.  The refusal to grant special leave on the denial of natural justice question is by majority, Justice Toohey dissenting.

MR BASTEN:   I would ask for costs.

MASON CJ:   You do not oppose that, Mr Bennett?  The application is refused with costs.

AT 2.25 PM THE MATTER WAS CONCLUDED