McGinity v Medical Council of Tasmania
[2009] TASSC 31
•14 May 2009
[2009] TASSC 31
CITATION: McGinity v Medical Council of Tasmania [2009] TASSC 31
PARTIES: McGINITY, Paul (Dr)
v
MEDICAL COUNCIL OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 250/2009
DELIVERED ON: 14 May 2009
DELIVERED AT: Hobart
HEARING DATE: 1, 5 May 2009
JUDGMENT OF: Porter J
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review – Delegation of power – Statutory body delegating functions to committee of three members – Whether delegator made provision for a quorum – Whether committee can make provision for quorum – Where no quorum all members are required to be present for valid decision – Decision as to delegated function made by two members – Decision invalid.
Green v R (1891) 17 VLR; Municipality of St Leonards v Williams [1966] Tas SR 166; R v City of Tea Tree Gully; Ex parte Indoor Cricket Arenas (Australia) Pty Ltd (1984) 37 SASR 167, applied.
Aust Dig Administrative Law [1039]
Professions and Trades – Healthcare professionals – Medical practitioners – Other matters – Suspension of registered practitioner pending investigation – Delegation by Medical Council to executive committee of power of suspension – Committee made up of three members –Whether Council made provision for a quorum of committee – Whether committee can make provision for quorum – Where no quorum all members are required to be present for valid decision – Suspension ordered by two members– Suspension invalid.
Green v R (1891) 17 VLR; Municipality of St Leonards v Williams [1966] Tas SR 166; R v City of Tea Tree Gully; Ex parte Indoor Cricket Arenas (Australia) Pty Ltd (1984) 37 SASR 167, applied.
Aust Dig Professions and Trades [1079]
REPRESENTATION:
Counsel:
Appellant: K B Procter SC
Respondent: D F M Zeeman
Solicitors:
Appellant: Murdoch Clarke
Respondent: Butler McIntyre & Butler
Judgment Number: [2009] TASSC 31
Number of paragraphs: 46
Serial No 31/2009
File No 250/2009
DR PAUL McGINITY v MEDICAL COUNCIL OF TASMANIA
REASONS FOR JUDGMENT PORTER J
14 May 2009
Introduction
The appellant is a registered medical practitioner. His registration was suspended by the service of a notice from the Medical Council of Tasmania ("the Council") dated 27 March 2009. The introductory words of the notice are as follows:
"take notice that pursuant to paragraphs (f) and (g) of Section 55(1) of the Medical Practitioners Registration Act 1996 …, the Medical Council of Tasmania has resolved to suspend your registration as a medical practitioner for (6) six months commencing from the date of service on you of this notice on the following grounds".
The grounds set out in the notice refer to concerns about Dr McGinity's clinical competence and performance, and the notice records that the Council considered it necessary in the public interest to suspend Dr McGinity's registration for the purposes of an investigation.
It transpires that the decision to suspend the registration was not made by the Council as such, but on 27 March 2009 by an Executive Committee made up (on that day) of two members of the Council; Dr Sexton (President of the Council and Chair of the Committee) and Dr Joske.
The Medical Practitioners Registration Act 1996 ("the Act"), s61(1)(e), affords a right of appeal to this Court against suspension of registration. Dr McGinity filed a notice of appeal and on 20 April 2009, a direction was made that there be a speedy hearing. When the matter came before me on 1 May, application was made to amend the grounds of appeal by the inclusion of ground 1A, which is as follows:
"The process adopted in arriving at the decision to suspend the registration of the appellant did not comply with the provisions of the Medical Council's resolutions with respect to suspension of registration".
As argued, the ground is primarily directed towards the constitution of the Committee; the point being whether the decision could properly be made by two members, as distinct from the three members who ordinarily were required to make-up the Committee. It was agreed that ground 1A be determined as a preliminary ground and before embarking on a consideration of the remaining grounds as to the suspension itself. The hearing was adjourned from 1 May to 5 May, to enable the respondent to search for and produce all material relevant to the issue. As a result, I have been supplied with a bundle of documents, mostly minutes of Council and Committee meetings, and the parties agreed that I should proceed on the facts to be determined from those documents.
Relevant provisions of the Act
Because of the nature of the arguments, it is necessary to set out parts of the Act. Section 5 of the Act continued the existence of the Medical Council of Tasmania which was established by the Medical Act 1959, s4. The Council is a body corporate with perpetual succession. Section 6 provides that the Council consists of nine registered medical practitioners, one legal practitioner, and one person not being a medical practitioner or a legal practitioner, to represent the interests of consumers of medical services. All 11 members are appointed by the Governor.
The relevant parts of ss10 and 11 of the Act are as follows:
"10 Delegation
(1) The Council may delegate any of its functions or powers, other than this power of delegation, to a member of the Council, the Registrar or a committee.
…
11 Committees
(1) The Council may from time to time establish —
(a)…; and
(b)such other committees as the Council considers expedient for the purpose of assisting it in the performance of any of its functions or the exercise of any of its powers or advising it on any matter relating to this Act.
…
(8) Except as otherwise provided in this Act, a committee may determine its own procedure."
The relevant parts of s55 which deal with the suspension of registration are as follows:
"55 Suspension of registration
(1) The Council may suspend a medical practitioner's registration for such period not exceeding 12 months as the Council in the circumstances considers appropriate if —
(a)…
(b)…
(c)…
(d)…
(e)…
(f)the Council reasonably considers the suspension necessary for the purposes of investigating a complaint made against that medical practitioner or investigating on its own motion a matter that could be the subject of a complaint against that medical practitioner; or
(g)the Council considers that it is in the public interest to suspend the registration; or
(h)…
(i)…".
Schedule 2 to the Act deals with meetings of Council. Matters of note are as follows:
· Six members form a quorum at any duly convened meeting of the Council — cl 2(1).
· Any duly convened meeting of the Council at which a quorum is present is competent to transact any business of the Council — cl 2(2).
· Questions arising at a meeting are to be determined by a majority of votes of the members present and voting — cl 2(3).
· Subject to a power to exclude persons if there are "compelling grounds to do so", Council meetings are to be open to the public — cl 6.
The Executive Committee
By way of a motion passed on 9 January 1998, the Council established an "Executive Committee" pursuant to the Act, s11, ("the Committee"). By the same motion, Council delegated its powers to the Committee to deal with a number of specified matters, suspension of registration not being amongst them. On 3 July 1998 though, the following motion was passed at a Council meeting:
"That pursuant to section 10 of the Medical Practitioners Registration Act 1996 the Council delegates to the Executive Committee the power granted to Council by section 55(1)(f) and (g) of the Act to suspend registration of a registered medical practitioner, if the Executive Committee determines that such suspension:
(1)is reasonably necessary for the purpose of inquiring into a complaint against that practitioner; or
(2)is reasonably necessary for the purpose of inquiring into a matter that could be the subject of a complaint against that practitioner; or
(3)is in the public interest."
It is agreed in these proceedings that this motion has not been rescinded or amended, and accordingly the Committee maintains that delegated power. It is also accepted by the respondent that it is that delegated power which the Committee purported to exercise on 27 March 2009, in this case.
The constitution of the Committee
At the same Council meeting on 3 July 1998, by a further motion, it was resolved that the Committee established by the resolution of 9 January 1998, "consist of the President of the Council [then Dr Morris] two persons appointed by the Council, currently M Hodgson and J C Stewart, and the Registrar of the Council". Although the documents with which I was supplied do not disclose this particular alteration, it is agreed that at some point prior to early 2001, Council resolved to remove the Registrar as a member of the Committee.
There is no specific documentation as to this, but at least by 23 February 2001, it is clear that the Council had resolved that the Committee be constituted by three nominated members, one of whom was the President. It is also clear that by that stage there had been a resolution to appoint another member as "an alternative member". (In a memo to Council dated 31 January 2001, Dr Hodgson noted that on occasions only two Committee members were able to be present, and recorded the Committee's view "that to properly transact the … Committee's business, there should be three members present and that an alternate member be appointed by Council to replace any absent member".) On 7 December 2001, Council agreed "that the Executive Committee is the appropriate size with … the alternative member in the event that a member is not able to attend a meeting".
At a Council meeting on 1 August 2003, it was confirmed that the Committee be comprised of the President and two other medical practitioners with provision for the appointment of a third alternative member. Although I will have to return to minutes of Council and Committee meetings, it is unnecessary at this point to detail subsequent discussions of the Council as to the make-up of the Committee. At one stage the concept of the President plus two nominated persons with a nominated alternate, seems to have been changed to the President together with one nominated person, plus a "rotating third person".
The relevant fact is that however it was constituted, (that is by the Chair together with appointed "permanent" members or alternate or rotating members), a total of three had been specifically endorsed as the number to constitute the Committee. Of particular significance is that on 7 July 2006 Council resolved that the Executive Committee be made up of the President, Dr Hodgson and (specifically) Drs Sexton and Joske. This was to take effect from 21 July 2006. The end result of all of this is that in these proceedings, the respondent accepts and it is the agreed position, that by 5 February 2009, the Council had formally resolved that the Committee be constituted by the President and two members of Council.
The date of 5 February 2009 is significant because by letter of 8 September 2008 Dr Hodgson tendered to the Governor his resignation as a member of the Council effective from 6 February 2009. On 16 February 2009, the Governor-in-Council appointed a replacement for Dr Hodgson on the Council and appointed Dr Sexton as President. However, despite the fact that the remaining members of the Committee discussed the issue on 20 March 2009, the Council took no steps to nominate a replacement for Dr Hodgson so that its membership was maintained at three. That was the state of affairs which existed on 27 March 2009.
At this point I should note the existence of documents entitled "Terms of Reference – Executive Committee". The first such document appears to have been confirmed at the Council meeting on 7 December 2001. The wording of the terms has changed slightly over a period of time, but not in any material way. At a Council meeting on 3 September 2004, Dr Hodgson told members that the Committee's terms of reference were being reviewed, and the "final" version was sent by the Registrar to Council members on 19 October 2004. Oddly enough the terms of reference do not refer to suspension of registration, but note the delegation of powers to deal with matters of a financial and administrative nature, the initiation of administrative procedures relating to new complaints and review of complaints under investigation, applications for registration, preparation of Council policy statements, and any other matters referred to it by Council or the President. The terms further note that the Committee "will regulate its proceedings as it sees fit" and "will provide minutes of its meetings to Council".
The respondent accepts and concedes that it has not at any time formally established a quorum for the Committee by way of a formal motion or other resolution. Its position is that it has endorsed the operation of the Committee by a quorum of two, by allowing it to function in that way.
The appellant's arguments
For the appellant it is submitted that the decision to suspend is invalid because:
· the Council's powers of suspension were delegated to the Committee.
· as at the date of the decision (accepting that the power was delegated to a committee of three and not four) the Committee was to be constituted by three members of Council.
· only two members of the Committee made the decision.
· no quorum of less than three had been established and the situation is not saved by the Acts Interpretation Act 1931, s23C.
That section provides as follows:
"23C Power of statutory bodies to act during vacancies in membership
Where pursuant to any Act there is established, constituted, or appointed any board, commission, committee, or other body of persons (whether incorporated or unincorporated) comprising 2 or more members that Act shall, unless the contrary intention appears therein, be deemed to empower that board, commission, committee, or other body to function, and the members, or persons empowered to act as members thereof, to act, notwithstanding any vacancies in the membership thereof, so long as there are sufficient members to constitute a quorum at a meeting of that board, commission, committee, or other body."
The submission is that as the Act does not provide for a quorum in respect of any Committee established pursuant to the Act, s11, and as the Council has made no provision for a quorum of the Committee, a full contingent of three is required to make a decision in relation to the delegated powers.
The respondent argued that:
· it is not necessarily the case that where no quorum is specified, all members of the relevant body need to be present, the body being able to determine a quorum for itself.
· in any event, the Council had made provision for, or at least endorsed, a quorum of two; not expressly but by implicit approval to be inferred from its conduct, or acquiescence (a term which I think I introduced into the argument but which summarises the point).
· accordingly, as there was a vacancy on 27 March 2009, s23C applied to empower the Committee to function with the quorum of two members.
It can be seen that, assuming the proper delegation of the power to the Committee as made up of three members, and assuming the applicability of the Acts Interpretation Act, s23C, the issue becomes one of whether a quorum of two for the Committee has been properly fixed or established. I will first deal with the two assumptions referred to.
Delegation to an Executive Committee of three?
Counsel for the appellant did not strongly press the point, conceding that it was arguable that the power of delegation remained with the Committee made up of three, rather than four. There is sufficient in the material to establish that Council, on several occasions before 2004, specifically resolved that the Committee be made up of three members.
On 6 August 2004, Council considered and agreed to accept as "policy", a recommendation from the Committee relating to "suspension from practising medicine". That recommendation was in the following terms:
"· If circumstances allow, then all members of Council will consider whether to suspend a practitioner from practising medicine.
·If circumstances do not allow and the matter is considered sufficiently urgent, then the Executive Committee … will consider whether to suspend a practitioner from practising medicine. Under the circumstances, all members of Council will have an opportunity to consider the matter at the next scheduled meeting of Council. External legal advice is to be sought before suspending a practitioner from practising medicine."
When the Committee's membership was changed from four to three, that was all that was changed. The nominated members changed over time, but in my view that is of no consequence. The question is whether it can be presumed that the Committee of three have the delegated power of suspension, originally given to the Committee of four. A broadly analogous situation was considered in R v City of Tea Tree Gully; Ex parte Indoor Cricket Arenas (Australia) Pty Ltd (1984) 37 SASR 167. A committee of a municipal council had a delegated power to consent to planning applications. A restructuring led to a change of name but the evidence did not establish that the new committee was simply the same as the old committee, but with another name. In those circumstances King CJ (at 169) said he did not think that the delegation to the first committee could be treated as a delegation to the second one. At 173 Prior J said:
"The Council must be shown to have exercised [the] power of delegation to the new Committee. The evidence from the Council fails to do that. Indeed, it does not tell us whether the new Committee had the same membership as the old. On this basis alone, there is presently no consent granted by the Council."
However, in this case I have particular regard to the adoption by the Council of the policy relating to the suspension of practitioners adopted on 6 August 2004. In light of that, it seems to me that in simply changing the number of members and nothing else, the Council can be presumed to have delegated the power of suspension to the Committee as made up of three members.
Does the Acts Interpretation Act, s23C, apply?
Counsel for the parties proceeded on the assumption that, as a matter of principle s23C applied to the Committee, as being a "committee or other body of persons … established pursuant to an Act", within the meaning of the section. On the face of it, that would appear to be correct. The word "committee" is defined in the Act as a committee established by the Council under s11, and in this context, the meaning of phrase "pursuant to" would include "under", in the sense of "by virtue of"; see Pearce and Geddes, Statutory Interpretation in Australia, 6th ed at 363, par12.11. In the circumstances, I am prepared to proceed on the basis, but without expressing any concluded view, that the section does apply to the Committee. Either way, the question still arises as to whether a quorum of two had been established in respect of the Committee's functions; in particular, the power of suspension.
Was the Committee able to fix a quorum for itself?
In my view, there can be no question of an implied power for the Committee to set its own quorum in relation to its delegated functions. First, as a basic proposition, the act of delegation "is a serious step", to use the words of King CJ in the City of Tea Tree Gully case (above) at 170. As is shown by that case the identity and nature of the delegatee must be clearly identifiable. The exercise of the delegated functions is strictly circumscribed by the terms of delegation. For instance, there can be no room for the delegate to determine the ambit of the delegated authority; Ratnagopal v Attorney-General [1970] AC 972.
It is recognised that there may be a statutory tribunal operating under a "quorum provision … by which a number of persons are appointed as members and all may attend and determine the matter, but there is no provision for any specific number so long as there is the specified quorum"; Howard v Borneman (No 2) [1975] 1 Ch 201 per Lord Denning MR at 211 (on appeal [1976] AC 301). Such a "bare quorum provision" means that no less than the quorum can constitute the body, but does not mean that if the body comprises more than the quorum then it "can bifurcate and delegate [its] powers to only some of their number in the absence of an express power to do so"; Cantwell v Building Practitioners' Board [2003] NTSC 92 at [17] – [18].
Accordingly, for the Committee to determine for itself that it may exercise its delegated powers by a quorum of two, would be to further delegate its functions, something which offends the well-known principle of common law, but is also expressly contrary to the Act, s10(1).
Counsel for the respondent referred to the Act, s79(c), which provides that in any proceedings, unless evidence is given to the contrary, "proof is not required of the presence of a quorum at any meeting of the Council … or a committee". The submission was that this provision recognised that a quorum could be established for a committee, the only other reference to "quorum" being that which occurs in Schedule 2, cl 2(1), relating to the Council. I agree that where the Council establishes a committee, it may make provision for a quorum for a meeting of that committee, but there is nothing in the legislative scheme to suggest that a committee of a specified number with delegated functions, can fix for itself a quorum.
Did the Council make provision for a quorum of two for the Committee?
The facts
I was told, and the documents support the statement, that from September 2006 to the present, the Committee has met and carried out its functions constituted by two members. This seems to have been a deliberate setting of a quorum of two for itself. I should note that the first recorded instance of the Executive meeting with less than its full contingent was on 3 June 2002. On that date it purported to suspend a practitioner. This suspension was discussed at a Council meeting about a month later without any recorded action or observations about that on the part of any Council member.
The material shows that from 29 September 2006, there are nine instances of where the Committee has met with only two members present. The documents which I have only show that on two occasions (25 May 2007 and 31 August 2007) have the minutes of the Committee meeting been tabled and discussed at Council meetings held shortly thereafter. On each of those occasions, the activities of the Committee at the relevant meetings can be described as mostly purely administrative, although it would appear that on 25 May 2007, the Committee had revoked some conditions on a practitioner's registration. Certainly there is no suggestion of any suspension having been effected.
Further matters of note are that on 2 May 2008 at a Council meeting, provision for an alternative Committee member was discussed. It was reported that Dr Hodgson and Dr Joske would be out of the country for a period. The minutes record the following:
"There will be registration matters which need to be considered by the Executive which requires two people".
Council agreed to the appointment of a particular member to be the alternative member during the relevant period. Further, at a Committee meeting on 27 June 2008, Dr Hodgson is noted as expressing the belief that it was advisable to have three people present at Committee meetings. It was agreed that the President recommend that a particular practitioner be approached to be an "extra" member and that there be a recommendation made to Council for discussion. That discussion took place on 20 March 2009, at which time Council seems to have acceded to the suggestion that another member be nominated as a Committee member.
The final matter which should be noted is that in the Council's annual report to the Minister for the year 2007/2008 under the heading "Executive Meetings", there is shown the attendance of the three nominated members (Drs Hodgson, Joske and Sexton) for the year. Six meetings were held during the reported period, at four of which there were only two members present.
The law
The Committee is a body with delegated statutory functions. In the absence of provision for a quorum, all members of the Committee need to be present in order to make a valid decision. In Green v R (1891) 17 VLR 329 at 333, Higinbotham CJ (Webb and Molesworth JJ agreeing) said:
"As a general rule, power entrusted to a given number of individuals cannot be exercised by a less number. When an Act of Parliament creates a body with certain powers, and requires that an act of that body, in the exercise of its powers, shall be done by the members, and no provision is made by order under the authority of the Act for the exercise of a power by a quorum, or by part only of the whole number of the members, the act, in order to be valid, must be done by all of the members of the body …".
In Municipality of St Leonards v Williams [1966] Tas SR 166, Burbury CJ took a similar view in relation to a statutory body set up under the Local Government Act 1962. His Honour noted that the six members of the body were to have different professional qualifications, and said that having regard to the setting up of the body "in which professional qualifications and practical experience are so nicely balanced that any decision … should only be reached at a sitting at which all those nominated … were present and able to make their own contribution". However, at 169, his Honour went on to say:
"Where Parliament sets up a board, council, commission or other statutory body to exercise continuing functions of a business character it will usually be found in the enactment itself that Parliament has prescribed a quorum or empowered the body to fix its own quorum. If it does not do so then there may be a proper case for the court to imply such a power in order to give the body business efficacy."
The submission that an intention should be imputed to Parliament that this body should have power to act by a majority of its members present or by a quorum of the members fixed by the body itself, was rejected. At 171, his Honour said:
"I would therefore dispose of this case on the simple ground that Parliament has not said that this commission is entitled to fix a quorum and make a decision of that quorum the decision of the Commission, and that so far from being necessary to imply such a power for the effective functioning of the Commission it would, in my view, be contrary to the legislative purpose for the court to do so."
Notwithstanding the relevance given to the nature of the make-up of the body in question, this case has been taken as authority for the proposition expressed in Green v R (above). The general rule remains that in the absence of any provision for a quorum, all members of a statutory body or a body with delegated powers, need to be present in order to make a valid decision; see Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107, Carruthers v Connolly [1998] 1 Qd R 339 at 386 – 387, and (more generally), Ball v Pearsall (1987) 10 NSWLR 700 at 703, In the matter ofProfessional Golfers Association of Australia Ltd [2007] FCA 1571 at [27].
Conclusions
The question then is whether it has been shown that the Council approved of the Committee exercising its delegated functions with a quorum of two. To re-cap, the appellant says that the number to make-up the Committee was three, that it could not function with two because no quorum had been provided for, and the operation of the Acts Interpretation Act, s23C, does not arise. The respondent agreed that the Committee was made up of three members, but as there was a vacancy it could properly carry out its functions with two members, because a quorum of two had been established, and it was empowered to so function by virtue of s23C.
In terms of general approach, I take the view that for the reasons I have outlined relating to delegation generally, there would need to be an unequivocal and succinct endorsement or approval by Council, of the delegated powers being exercised by the Committee with a quorum of two. There would need to be very cogent evidence to establish that this occurred by a silent or passive assent to the proposition. There is some evidence of Council having Committee minutes that suggest a self-imposed quorum of two, and it may be inferred there are other instances not covered by the documentation. But there is nothing to suggest that the minds of members were specifically directed to the fact, let alone the issue of whether it was appropriate that the Committee operate that way in relation to its delegated powers which include of course, the power to suspend. (In that respect, it will be remembered that the delegated power to suspend is not referred to in the "Terms of Reference".) There is the mention of the Committee "requiring two people" which I have noted in par30 above, but that isolated passing reference is, of itself, of no real weight.
In this context, the legislative scheme in which the Council operates also needs to be borne in mind. Clause 2 of Schedule 2 provides that questions arising at a meeting of the Council are to be determined by a majority of votes of members present. This provision is obviously directed to the number required to resolve an issue and may not be otherwise directory, but it serves to illustrate the point. There is very good reason for questions to be determined in accordance with the normal dynamics of meetings. A specific motion or proposed resolution serves to define the issue and to focus the debate. That debate has the benefit of the knowledge, experience and judgment of the members present. Ideas are openly stated and can be tested. The decision making process is transparent and capable of being properly minuted.
Of some additional significance, in my view, is that cl 6 provides that a Council meeting is to be generally open to the public. An interested member of the public who followed the affairs of the Council over a period of time would understand that the Committee had been established and have knowledge of its make-up, but on the material with which I have been supplied, would have no knowledge of any suggestion of a collective endorsement of a quorum of two for that Committee.
Before concluding these reasons, I should note certain provisions of the Acts Interpretation Act, s23AA. Section 23AA(4) provides that a delegated function or power that is duly exercised by a delegate is to be taken to have been exercised by the delegator. More significantly perhaps, subs(6) provides that a function or power that has been delegated may, notwithstanding the delegation, be exercised by the delegator.
There is evidence to establish that Council delegated its functions to a Committee of three members. However, in my view there is no evidence sufficient to establish that, by any means, it made provision for that Committee to exercise those functions with a quorum of two. Three members were needed to exercise the delegated functions and because no quorum had been established, the Acts Interpretation Act, s23C, is of no assistance.
It follows that I am satisfied that on 27 March 2009, the Committee had no power to suspend the appellant. The notice of suspension asserts that the resolution to suspend was an act of the Medical Council. To the extent that the decision to suspend the appellant purports to be that of the Council, it should be quashed. There will be an order accordingly.
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