Medical Board of SA v N, JRP - [2006] SASC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
THE MEDICAL BOARD OF SA v N, JRP & ANOR
Judgment of The Full Court
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice Layton)
31 January 2006
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
Application for judicial review – complaint alleging unprofessional conduct – whether Medical Practitioners Professional Conduct Tribunal has power to stay proceedings as abuse of process – no express power to do so - whether such power implied - relevant principles - held, as creature of statute, Tribunal possessed only such powers as prescribed by enabling Act – application dismissed.
Federal Court of Australia Act 1976 (Cth) s 23; Medical Practitioners Act 1983 ss 5, 6, 7, 8, 9, 13, 16, 17, 18, 19, 24, 25, 26, 54, 57, 58, 61, 62, 63, 64, 65, 66; Medical Practice Act 2004 Sch 1; Medical Practice (General) Regulations 2005 reg 14; Acts Interpretation Act 1915 ss 16, 34, referred to.
Attorney-General v Walker (1849) 3 Exch 242; Barton v The Queen (1980) 147 CLR 75; Clayton v Ralphs (1987) 45 SASR 347; Connelly v Director of Public Prosecutions [1964] AC 1254; DJL v Central Authority (2000) 201 CLR 226; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Grassby v The Queen (1989) 168 CLR 1; Herron v McGregor (1986) 6 NSWLR 246; J N Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432; Jackson v Sterling Industries Ltd (1987) 162 CLR 612; Jago v District Court (NSW) (1989) 168 CLR 23; Medical Board of South Australia v Bradley (1999) 203 LSJS 115; Medical Board of South Australia v C [2000] SADC 103; Medical Board of SA v N, JRP (No 2) [2005] SAMPPCT 3; Moevao v Department of Labor [1980] 1 NZLR 464; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; R v Forbes; Ex parte Bevan (1972) 127 CLR 1; R v Harry; Ex parte Eastway (1985) 39 SASR 203; R v O'Loughlin; Ex parte Ralphs (1971) 1 SASR 219; Re Ross [1995] 1 Qd 319; Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136; Rona v District Court of South Australia (1995) 63 SASR 223; Russian Commercial & Industrial Bank v British Bank for Trade Ltd [1921] 2 AC 438; Walton v Gardiner (1993) 177 CLR 378; Watson v Attorney-General (NSW) (1987) 8 NSWLR 685; Williams v Spautz (1992) 174 CLR 509; Wunsch v SA Police (1995) 64 SASR 203; Varverakis v Police (2003) 225 LSJS 286, considered.

THE MEDICAL BOARD OF SA v N, JRP & ANOR
[2006] SASC 19
Full Court: Debelle, Besanko and Layton JJ

DEBELLE J. This application for judicial review concerns the important question whether the Medical Practitioners Professional Conduct Tribunal (“the Tribunal”) has power to stay the hearing of a complaint on the ground of abuse of process. The Tribunal held that it did not. The protagonists in the application are the Medical Board of South Australia (“the Board”) and the first defendant who is the medical practitioner the subject of the complaint. The Tribunal informed this Court that it would abide the order of the Court. The application comes to this Court in the following way.
Complaints of Unprofessional Conduct
On 22 June 2004 the Board laid a complaint with the Tribunal alleging unprofessional conduct on the part of the first defendant. The complaint was laid pursuant to s 58 of the Medical Practitioners Act 1983. That Act was repealed and replaced by the Medical Practice Act 2004 which came into operation on 21 April 2005. The transitional provisions which apply in respect of complaints lodged before the 2004 Act came into operation are set out in para 6 of Schedule 1 of the 2004 Act and reg 14 of the Medical Practice (General) Regulations 2005. The effect of those provisions is that the complaint is to be heard and determined under the repealed Act.
The complaint alleged four counts of unprofessional conduct. The first count alleged that during the period from 7 November 1984 to 1 March 2000 the defendant had been guilty of unprofessional conduct in relation to the practice of medicine in the management and treatment of a female patient. For the purposes of this application, it is unnecessary to recite all of the particulars of the complaint. Shortly stated, the complaint alleged that
·from 7 November 1984 to about 21 August 1985 (“the consultation period”) the patient consulted the defendant in his capacity as a specialist psychiatrist;
·in the consultation period the defendant encouraged and participated in an inappropriate emotional and sexual relationship with the patient;
·on 9 July 1985 the defendant engaged in an act of sexual intercourse with the patient in his consulting rooms;
·the relationship continued after 21 August 1985 until 1 March 2000;
·on 12 January 1993 the defendant began living with the patient and the cohabitation continued until 1 March 2000;
·on 13 April 1995 the patient gave birth to a son of the defendant.
By reason of the alleged conduct the Board asserted that the defendant
(a)was guilty of improper conduct in relation to the practice of medicine;
(b)was guilty of unethical conduct in relation to the practice of medicine; and
(c) was guilty of negligence in relation to the practice of medicine.
The second count alleged that during the period from 7 November 1984 to 31 October 1985 the defendant had been guilty of unprofessional conduct in his management and treatment of the patient. Shortly stated, it is alleged that the defendant had been guilty of incompetent management and treatment of the patient by reason of the emotional and sexual relationship between him and the patient and had failed to manage the patient’s weight loss.
The third count alleged that between 9 July 1985 and 18 July 1985 the defendant had been guilty of unprofessional conduct in relation to the practice of medicine. Shortly stated, the particulars of that count are that on 9 July 1985 the defendant had engaged in sexual activity with the patient at his consulting rooms and between 9 July 1985 and 19 July 1985 the defendant had dishonestly claimed a Medicare payment in relation to the attendance by the patient at his consulting rooms on 9 July 1985 so that he was, therefore, guilty of improper and unethical conduct in relation to the practice of medicine.
The fourth count alleged that between 7 November 1984 and 21 August 1985 the defendant had been guilty of unprofessional conduct in relation to the practice of medicine in the management and treatment of his patient. Shortly stated, the particulars are that the records maintained by the defendant were inadequate in respect of his treatment of his patient.
An Application for a Stay Refused
The complaint came on for hearing before the Tribunal on 6 June 2005. On that day, counsel for the defendant foreshadowed an application to have the proceedings stayed as an abuse of process on the ground that there had been an unconscionable delay in prosecuting the proceedings and because the defendant and the patient had lived in a relationship for almost 15 years. Notwithstanding the foreshadowed application, the defendant’s counsel questioned whether the Tribunal had jurisdiction to hear an application for a stay. The Tribunal treated the foreshadowed application as an actual application. It is common ground that the defendant did in fact apply for a stay. After hearing argument, the Tribunal held that it did not have jurisdiction to hear the application. The Tribunal gave ex tempore reasons for its decision. The Tribunal then adjourned the hearing.
Applications for Judicial Review
It appears that at least one reason for the adjournment was that the defendant wished to apply to this Court for a declaration that the decision of the Board to lay a complaint constituted an abuse of process of the Board and for a declaration that the commencement and prosecution of the proceedings before the Tribunal also constituted an abuse of process. The defendant made such an application on 29 June 2005. The defendant also applied for orders that the hearing of the complaint be permanently stayed or dismissed and that there be an injunction restraining the Board from prosecuting the complaint.
Later, on 18 July 2005, the Board made an application in this Court for judicial review seeking an order in the nature of an order for certiorari to quash the finding of the Tribunal that it had no jurisdiction to hear an application for a stay of proceedings for an abuse of process and for a declaration that the Tribunal does have the jurisdiction to entertain such an application. On 22 July 2005 a Master of this Court made orders in both this application for judicial review and in the defendant’s application. The orders were made by consent of both parties. The effect of the orders is that the Board’s application for judicial review should be determined before the defendant’s application. The defendant’s application has, therefore, been adjourned.
If it were not for the application by the defendant seeking a declaration that the Tribunal has jurisdiction to stay proceedings as an abuse of process, I would have dismissed the application. The remedies of an order in the nature of certiorari and a declaratory judgment are discretionary. It is highly undesirable that proceedings of this kind should be interrupted by an application for judicial review, save in very exceptional circumstances: R v Harry; Ex parte Eastway (1985) 39 SASR 203 at 213; Clayton v Ralphs (1987) 45 SASR 347 at 356 – 369. This is particularly so where the applicant has the benefit of a favourable ruling. The ruling may not be one which appeals to it but it is, nevertheless, one which did not prejudice the Board in its prosecution of this complaint before the Tribunal. However, the fact that the defendant has made an application in this Court to stay the proceedings in the Tribunal as an abuse of process is a sufficient reason to depart from the usual rule as the decision in this application will also determine the issues in the defendant’s application.
The fact that the decision is favourable to the Board could mean that the question is academic or theoretical. However, there is a division of opinion on this question in the Tribunal: see Medical Board of South Australia v C [2000] SADC 103 and Medical Board of South Australia v Bradley (1999) 203 LSJS 115. More significantly, the jurisdiction of this Court to grant declaratory relief is very wide: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 and J N Taylor Holdings Ltd v Bond (1993) 59 SASR 432 at 435 ‑ 437. In Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136 at 1558 it was suggested that the jurisdiction did not exist to determine purely abstract questions incapable of affecting existing or future legal rights of the plaintiffs. As I understand the reasons of King CJ in J N Taylor Holdings Ltd v Bond at 436, that is no longer a requirement in this Court. However, even if that is a requirement, the questions in this case are not purely abstract in that the answer of the questions has the capacity to affect the rights of the parties in the defendant’s application. In that sense, the questions raised are not purely hypothetical. In addition, there is both a party with a true interest in opposing the application and a plaintiff with a real interest in having the question determined: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 per Lord Dunedin at 448.
The Powers of the Tribunal
The Tribunal is the creature of statute. Section 24 of the Medical Practitioners Act 1983 prescribes the persons who comprise the Tribunal. They are a presiding officer and four appointed members: s 24(1). The presiding officer is the Senior Judge of the District Court of South Australia or the nominee of the Senior Judge. The Senior Judge may nominate a District Court judge or, with the approval of the Chief Magistrate, a magistrate as presiding officer: s 24B. Of the four appointed members, three are approved by the Minister and one is appointed by the South Australian Branch of the Australian Medical Association. The members appointed by the Minister must comprise two medical practitioners and one who is neither a medical practitioner nor a legal practitioner: s 24(2). Appointed members hold office for a term not exceeding three years. For present purposes, it is relevant to note that the presiding officer may be either a District Court judge or a magistrate. At present, it is a District Court judge.
Complaints to the Tribunal are laid by the Board: s 58 of the Act. No other person has power to complain directly to the Tribunal. Complaints alleging unprofessional conduct may be made to the Board by the Registrar of the Board, the Minister, the South Australian Branch of the Australian Medical Association, and a person aggrieved by the conduct of a medical practitioner. The Tribunal does not have any express power to stay a complaint on the ground of abuse of process. The Tribunal’s powers in respect of proceedings before it are provided in ss 58 – 65 of the Act. Section 58(1) and (2) provide:
58. (1) A complaint alleging unprofessional conduct –
(a)on the part of a medical practitioner; or
(b)on the part of a person who was at the relevant time a medical practitioner,
may be laid before the Tribunal by the Board.
(2) Where a complaint has been laid under this section, the Tribunal shall inquire into the subject matter of the complaint.
When determining whether it had jurisdiction the Tribunal relied on s 58(2). It held that it possessed only those powers vested in it by the Act. Its task, it said, was limited to enquiring into the subject matter of the complaint and nothing in its powers implied a power to stay proceedings on the ground of abuse of process.
Before examining that proposition, I note other relevant provisions in the Act. If the Tribunal finds a medical practitioner guilty of unprofessional conduct it has power to order a number of sanctions ranging from a reprimand to removing the practitioner from the register and ordering payment of a fine: s 58(3).
Section 61 of the Act requires the Tribunal to give notice of the hearing to the parties before it and to afford them a reasonable opportunity to call and give evidence, to examine or cross‑examine witnesses and to make submissions to the Tribunal. If a party to whom notice has been given does not attend, the Tribunal may proceed to hear and determine the complaint in the absence of that party: s 61(2).
Section 62 of the Act provides:
62.(1)     The Tribunal is not bound by the rules of evidence and may inform itself upon any matter as it thinks fit.
(2)     Subject to this Act, the procedure of the Tribunal upon the hearing of proceedings under this Act shall be as determined by the Tribunal.
(3)     Upon the hearing of proceedings, the Tribunal shall act according to equity, good conscience and the substantial merits of the case.
Of particular note is the fact that the Tribunal may determine the procedure for hearing proceedings before it and the Tribunal may act according to equity, good conscience and the substantial merits of the case. I will return to the effect of s 62.
It is necessary to set out the whole of s 63:
63.(1)     For the purposes of proceedings under this Division, the Tribunal may –
(a)by summons signed on behalf of the Tribunal by a member of the Tribunal, or by the Registrar, require the appearance before the Tribunal of any person or the production to the Tribunal of any relevant books or equipment; or
(b)inspect any books or equipment produced to it, and retain them for such reasonable period as it thinks fit, and make copies of the books, or of any of their contents; or
(c)require a person appearing before the Tribunal to make an oath or affirmation that he will truly answer all questions put to him relating to any matter in issue before the Tribunal (which oath or affirmation may be administered by a member of the Tribunal or the Registrar); or
(d)require a person appearing before the Tribunal to answer any relevant question put to him by any member of the Tribunal or by a party or person appearing on behalf of a party to a proceeding before the Tribunal.
(2)     Upon the receipt of an application for the issue of a summons under this section, a member of the Tribunal or Registrar may, without referring the matter to the Tribunal, issue a summons on behalf of the Tribunal.
(3)     If a person –
(a)who has been served with a summons to appear before the Tribunal fails, without reasonable excuse, to appear in obedience to the summons; or
(b)who has been served with a summons to produce relevant books or equipment fails, without reasonable excuse, to comply with the summons; or
(c)misbehaves himself before the Tribunal, wilfully insults the Tribunal or any member of the Tribunal, or interrupts the proceedings of the Tribunal; or
(d)refuses to be sworn or to affirm, or refuses or fails to answer truthfully any relevant question, when required to do so by the Tribunal
he shall be guilty of an offence and liable to a penalty not exceeding five thousand dollars or imprisonment for three months.
(4)     A person who appears as a witness before the Tribunal has the same protection as a witness in proceedings before the Supreme Court.
(5)     If a person summoned as mentioned in subsection (1) fails to produce any books or equipment or to appear before the Tribunal as required by the summons, or having appeared refuses to be sworn or to affirm, or to answer a relevant question when required to do so by the Tribunal, a certificate of the failure or refusal, signed by a member of the Tribunal or by the Registrar, may be filed in the Supreme Court.
(6)     Where a certificate has been filed under subsection (5), a party requiring the production of books or equipment or the appearance of a person before the Tribunal may apply (either ex parte or on notice) to the Supreme Court for an order directing the production of the books or equipment or that that person attend, or be sworn or affirm, or answer questions (as the case may require) and on that application the court may make such orders as it thinks fit (including orders for costs).
(7)     A person may be required to answer a question by the Tribunal notwithstanding that the answer to that question might tend to incriminate him, or to produce any books or equipment notwithstanding that they might tend to incriminate him, but if that person objects to answering any question a note of that objection shall be taken down, and the answer shall not be admissible against him in any criminal proceedings (except in proceedings for perjury).
(8)     In the course of an inquiry, the Tribunal may –
(a)receive in evidence a transcript of evidence taken in proceedings before a court, tribunal or other body constituted under the law of South Australia or of any other State or Territory of the Commonwealth or of another country, and draw any conclusions of fact from the evidence that it considers proper;
(b)adopt, as in its discretion it considers proper, any findings, decision, judgment, or reasons for judgment, of any such court, tribunal or body that may be relevant to the proceedings.
The Tribunal has no power to punish for contempt. Instead, s 63(3) makes it an offence to act or fail to act in a manner there prescribed. The means by which a person is compelled to produce books or equipment, to appear before the Tribunal, to make an oath or affirmation, or answer questions is by order of the Supreme Court: see s 63(5) and (6).

Section 64 of the Act invests the Tribunal with powers to make orders as to costs. Section 65 enables the Tribunal to make rules for
(a) regulating the practice and procedure of the Tribunal, and
(b)making any other provision that is necessary or expedient for carrying into effect the provisions of the division of the Act relating to the Tribunal.
Does the Tribunal Have Power to Order a Stay?
I turn to the question whether a disciplinary tribunal such as this tribunal has a power to stay proceedings.
There does not appear to be any decision which examines this question in any detail. In Walton v Gardiner (1993) 177 CLR 378 at 385, the majority of the High Court noted without criticism that the Medical Tribunal of New South Wales had stayed proceedings against a medical practitioner. The Tribunal had made its order following the decision in Herron v McGregor (1996) 6 NSWLR 246 where the Court of Appeal had stayed proceedings against another medical practitioner against whom charges had been made arising out of the same circumstances as those in which Dr Gardiner was charged. In Re Ross [1995] 1 Qd R 319 at 320, the Court noted that the parties had agreed that the Misconduct Tribunal in that State had jurisdiction to stay proceedings. In neither decision was the Court required to give the issue any further consideration.
It is well established that superior courts in Australia have inherent jurisdiction to stay proceedings, both criminal and civil, which are an abuse of process: Williams v Spautz (1992) 174 CLR 509 at 519. The Supreme Courts of the States exercise an inherent jurisdiction. Although conferred by statute, their powers are identified by reference to the unlimited powers of the courts at Westminster: Grassby v The Queen (1989) 168 CLR 1 at 16. However, a court created by statute does not have an inherent jurisdiction. Instead, the jurisdiction exercisable by it is to be found in the express terms of the statute or by what is necessarily implied by the statute. As Dawson J said in Grassby at 16:
It is unable to draw upon the well of undefined powers which is available to the Supreme Court.
In R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7, Menzies J identified the distinction between inherent jurisdiction and implied jurisdiction in these terms:
“Inherent jurisdiction” is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as “inherent jurisdiction”, which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have “inherent jurisdiction”.
Notwithstanding that the jurisdiction of a statutory court is defined in its constituting statute, the court will possess the jurisdiction which is implied in the express grant of power. See also DJL v The Central Authority (2000) 201 CLR 226 at [25]. As Dawson J said in Grassby at 16:
However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental.
A little later (at 17) Dawson J explained the circumstances in which jurisdiction would be implied in these terms:
It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be “derived by implication from statutory provisions conferring particular jurisdiction”. There is in my view no reason why, where appropriate, they may not extend to ordering a stay of proceedings: cf R v Hush; Ex parte Devanny. (Citation omitted)
Mason CJ, Brennan, Deane and Toohey JJ agreed with those observations. The principle expressed by Dawson J was expressed in these terms by Lord Morris in Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301:
There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.
The decision in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 is an example of both what was implied and what was not implied by the jurisdiction conferred on the Federal Court of Australia by s 23 of the Federal Court of Australia Act 1976 (Cth).
The reasoning of Dawson J in Grassby was applied by Gaudron, Gummow and Callinan J in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 at [50]; see also Kirby J at 474. At [51] Gaudron, Gummow and Callinan JJ stated that “necessity” in this context is to be understood in the sense given it by Pollock CB in Attorney-General v Walker (1849) 3 Exch 242 at 255 – 256, 154 ER 833 at 838 – 839, namely, as identifying a power to make orders which are reasonably required or legally ancillary: it does not refer to what is essential or absolutely necessary.
In Grassby, it was held that a magistrate in New South Wales hearing committal proceedings under the Justices Act 1902 (NSW) had no power to terminate the proceedings other than as provided in that Act. In consequence, the magistrate had no power to order a stay of the committal proceedings on the ground of abuse of process. That conclusion followed from the fact that committal proceedings are not a judicial enquiry but are conducted in the exercise of an executive or ministerial function. It seems that, if the magistrate had been exercising a judicial function, say, hearing a criminal charge, he would have had jurisdiction to order a stay of proceedings on the ground of abuse of process: see Dawson J in Grassby at 17.
There is no reason why these principles should not apply with equal force to statutory tribunals which exercise a disciplinary function. However, in each case the question will be whether that power is implied by the jurisdiction and powers vested by the statute in the Tribunal. In this case, the question is whether, when s 58(2) is read with the other provisions of the Act spelling out the powers of the Tribunal, the power to stay proceedings is necessarily implied in the grant of power in s 58(2) to enquire into the subject matter of the complaint. The question is whether the power is necessary for the effective exercise of the jurisdiction expressly conferred on the Tribunal, but that power will be confined to so much as can be derived by implication from the statutory powers conferring particular jurisdiction.
Before considering what is implied in the grant of jurisdiction in s 58(2) to the Tribunal to enquire into the subject matter of the complaint, it is helpful to note the policy considerations which justify why a stay of proceedings will be ordered for abuse of process.
In Williams v Spautz (1992) 174 CLR 509 at 520 the majority of the Court identified two fundamental policy considerations which must be taken into account when considering abuse of process in relation to criminal proceedings. The first is that the public interest in the administration of justice requires that the court protects its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice. So the power extends to the prevention of an abuse of process resulting in oppression, even if the moving party has a prima facie case or must be assumed to have a prima facie case: Williams v Spautz at 522. The court will prevent an abuse of process where, though the process might appear to be entirely proper and correct, it is being used for an improper purpose: Williams v Spautz at 522.
In the case of criminal proceedings the object is to ensure the court’s criminal processes are not used for purposes alien to the administration of criminal justice under law. The court may intervene if its processes are being employed for ulterior purposes or in such a way as to cause improper vexation and oppression: Moevao v Department of Labour [1980] 1 NZLR 464 per Richardson J at 482, cited with approval by Mason CJ in Jago v District Court of New South Wales (1989) 168 CLR 23 at 30. As Brennan J noted in Jago at 47:
An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve.
See also Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393 – 394.
When applying these principles, the distinction between criminal and civil proceedings is not rigid and inflexible. It is the nature of the proceedings, not their formal classification, that is important: see Jago per Mason CJ at 26 and the cases there cited. So, in Walton v Gardiner these principles were applied to stay proceedings on complaint in the Medical Tribunal of New South Wales.
When the Tribunal is called upon to enquire into the subject matter of a complaint alleging unprofessional conduct on the part of a medical practitioner, it must hear and determine whether the practitioner is guilty of unprofessional conduct. The nature of the proceedings is quasi criminal. As with other kinds of civil or criminal proceedings, there is potential for an abuse of process. A complaint may be made for an improper purpose. A former patient might harbour feelings of ill‑will towards the practitioner and those feelings motivate the patient to bring a complaint on grounds which are vexatious or improper or in circumstances which constitute oppression or where the proceedings are being employed for an improper purpose.
A complaint by the Board to the Tribunal has, therefore, the same capacity to give rise to an abuse of process as criminal or civil proceedings. The question is whether the Tribunal possesses the power to order a stay of proceedings on the ground of abuse of process or, as the defendant contended, that that power can only be exercised by this Court.
The fact that this Court exercises a supervisory jurisdiction over the Tribunal does not mean that the Court should not have power to order a stay of proceedings. As a general rule, it would be preferable for the Tribunal as the body seised of all the facts to decide the issue.
The jurisdiction of the Tribunal to enquire into the subject matter of the complaint requires it to hear and determine the complaint. The question whether the proceedings before the Tribunal are an abuse of process is a question which directly affects the question whether the Tribunal should enquire into the subject matter of the complaint. It is a question to be considered before the Tribunal embarks upon a full hearing of the issues raised by the complaint. In other words, it directly affects the jurisdiction of the Tribunal to enquire into the subject matter of the complaint. If a stay is ordered, the Tribunal will not inquire into a complaint. In that way, the power to order a stay has the capacity to affect the question whether the medical practitioner is guilty of the matters charged in the complaint and whether the practitioner is guilty of unprofessional conduct. The power to order a stay on the ground of abuse of process is, therefore, a power which is necessary for the proper exercise of the jurisdiction to hear and determine the complaint in the sense explained in Attorney‑General v Walker, namely, reasonably required or legally ancillary to that jurisdiction. For these reasons, the grant of the power to enquire into the subject matter of the complaint necessarily implies that the Tribunal has power to stay proceedings on the ground of abuse of process. A decision to grant or refuse a stay will be subject to an appeal to this Court pursuant to s 66 of the Act in the same way as any other order made by the Tribunal.
Further support for that conclusion is to be found in the terms of s 62 of the Act which directs the Tribunal to act according to equity, good conscience and the substantial merits of the case. The substantial merits of the case, if not also good conscience, are principles which are capable of resolving issues of the kind which must be considered when determining whether proceedings constitute an abuse of process. The substantial merits of the case involve, among other things, the question whether it is proper for the proceedings to continue. When exercising its powers under s 62, the Tribunal will also have a duty to apply the general law: Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 31 per Gleeson CJ and Handley JA.
There is a further reason for this conclusion. The Tribunal is required by s 66 to hear all proceedings fairly. It must give notice of its proceedings and parties may lead evidence. The presiding officer is a District Court judge or a magistrate and, not only presides over the proceedings, but also acts as a member of the Tribunal deciding the issues raised by the complaint. The Tribunal’s procedures are essentially the same as those of a court. It conducts an inter partes hearing with a complainant and a defendant. Witnesses are examined and are cross‑examined. Parties have the opportunity to make submissions. As the Tribunal is required to determine whether a medical practitioner is guilty of the matters complained of and whether the defendant is guilty of unprofessional conduct, it is acting judicially, not administratively.
This Court has decided that two statutory courts in this State have implied power to order a stay of proceedings on the ground of abuse of process. In Rona v District Court of South Australia (1995) 63 SASR 223, the Court held that the District Court possessed that power, albeit it was a statutory court which could not draw upon “the well of undefined powers which is available to the Supreme Court”: Grassby per Dawson J at 16 quoted earlier in these reasons.
In Wunsch v South Australian Police (1995) 64 SASR 203 at 210 Olsson J held that the Magistrates Court of South Australia possessed the same power. In doing so, he did not follow R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219 where the Full Court had held that a magistrate sitting as a court of summary jurisdiction did not possess that power. The reasoning of the Full Court was founded on the following observations of Wells J at 286:
I think that the argument urged upon us, that such a court must have been impliedly invested with a power to stay, founders immediately on one of the principles that underlie the Justices Act as a whole – namely, the principle that a court of summary jurisdiction is not continually in session, but is constituted by a particular magistrate or particular justices, at a particular place, while he or they are sitting either on an original, or on an adjourned, hearing. There is not one South Australian Court of Summary Jurisdiction, as there is one South Australian Supreme Court, which sits at various times and various places but always as the same court. Accordingly, even if a magistrate had a power to order a stay, it would, at best, bind only him, and could not affect the powers, or indeed the duties, of his colleagues. Such a state of affairs would produce results so obviously inconvenient and disruptive of the orderly administration of justice in courts of summary jurisdiction throughout the State, that I conclude that the legislature never intended to confer any such power.
I respectfully believe that Olsson J was correct in not following R v O’Loughlin; Ex parte Ralphs since, sometime after that decision, the Magistrates Courts Act 1991 was enacted, replacing courts of summary jurisdiction with the Magistrates Court, an inferior court of record with jurisdiction throughout the State. Magistrates would, therefore, be bound by decisions of other magistrates. In addition, the views of Wells J must be qualified by the remarks of Dawson J in Grassby v The Queen at 16 – 17 and by the reasons of the Full Court in Rona v District Court of South Australia.
There is no reason in principle why the Tribunal constituted by a judge or magistrate and other members, which acts judicially when determining whether a medical practitioner is guilty of matters alleged in a complaint, should not possess the same power as the Magistrates Court and District Court to stay proceedings on the ground of abuse of process.
The defendant relied on the fact that complaints alleging unprofessional conduct are made in the first place to the Board: s 54(1) of the Act and on the fact that the Board must enquire into the subject matter of the complaint unless it considers the complaint is frivolous or vexatious or it lays a complaint before the Tribunal in relation to the matters the subject of the complaint or arising out of it: s 54(2). The Board may also lay a complaint before the Tribunal if, in the course of an enquiry by the Board into a complaint, it believes that the allegations or evidence against the medical practitioner are sufficiently serious to warrant that course: s 54(4). Section 54 provides a kind of screening process.
The fact that the Board is invested by s 54(2) with power not to investigate a complaint because it considers the complaint to be frivolous or vexatious is not a reason for concluding that the Tribunal does not have power to stay proceedings as an abuse of process. The Board might, for example, overlook the power vested in it by s 54(2) or might wrongly conclude that the complaint is not vexatious. Furthermore, the Board might not be aware of all of the facts and it is not until the hearing before the Tribunal that it is established that the complaint has been made for an ulterior purpose.
In deciding that it did not have jurisdiction to stay proceedings for an abuse of process, the Tribunal drew some support from the fact that the word “shall” is used in s 58(2). In this context, the word “shall” has no further operation or effect than that the Tribunal has an obligation to hear and determine the complaint: it cannot ignore it or refuse to hear it. It has no further operation. It does not in any sense prevent the Tribunal from considering whether it should stay proceedings.
Conclusion
For these reasons, I would allow the application. I would set aside the decision of the Tribunal. I would make an order in the nature of a declaration that the Tribunal has jurisdiction to stay proceedings on the hearing of a complaint on the ground of abuse of process. I would further order that the Tribunal proceed to hear and determine the application by the defendant that the proceedings on the complaint constitute an abuse of process. I would also wish to hear the parties as to the effect of these orders upon the defendant’s application for judicial review.
BESANKO J This is an application for judicial review brought by the Medical Board of South Australia (“the Board”). The defendants to the application are N, a medical practitioner, and the Medical Practitioners Professional Conduct Tribunal (“the Tribunal”). The application raises an important issue; namely, whether the Tribunal has the power to hear and determine an application to stay proceedings before it on the ground that the proceedings constitute an abuse of process.

A complaint alleging unprofessional conduct on the part of N was laid before the Tribunal by the Board under s 58(1) of the Medical Practitioners Act 1983. The Medical Practitioners Act 1983 was repealed by the Medical Practice Act 2004, and the latter Act came into effect on 21 April 2005. By virtue of transitional provisions in the Medical Practice Act 2004, the complaint against N is to be heard and determined under the Medical Practitioners Act 1983: Medical Practice Act 2004, Schedule 1 clause 6; Medical Practice (General) Regulations 2005, clause 14; Acts Interpretation Act 1915, s 16.
On 6 June 2005 the Tribunal ruled that it did not have the power to hear and determine an application for a stay of proceedings on the complaint on the ground that the proceedings on the complaint constituted an abuse of process: Medical Board of SA v N, JRP (No 2) [2005] SAMPPCT 3. It is that ruling which is challenged by the Board’s application for judicial review.
The Board submits that the Tribunal does have the power to order a stay of proceedings on the ground that they constitute an abuse of process and seeks certiorari quashing the finding of the Tribunal that it does not have such a power and a declaration that the Tribunal does have such a power.
The Board’s application for judicial review comes before this Court in somewhat unusual circumstances. The complaint against N was laid before the Tribunal by the Board on 22 June 2004. As I have said, on 6 June 2005 the Tribunal ruled that it did not have the power to entertain an application for a stay of proceedings. It seems the Tribunal did so after counsel for N submitted that although the proceedings should be stayed on the ground they constituted an abuse of process, the Tribunal itself did not have the power to order a stay. In this case, the Tribunal’s ruling has no adverse consequences for the Board in that absent an order for a stay by this Court the complaint before the Tribunal will proceed.
In those circumstances, I have considered whether this Court should dismiss the Board’s application for judicial review on the ground that the issue raised is theoretical. I have decided that we should consider the merits of the Board’s application. This Court’s power to grant declarations is a wide one and I am satisfied that there is a dispute between the parties which is not merely theoretical and that there is a proper contradictor: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; J N Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432. N himself has instituted an action in this Court claiming a declaration that the proceedings in the Tribunal are an abuse of process and an injunction that they be restrained. The parties have agreed that that action should not proceed any further pending the outcome of this application. The Court was also told that there is another complaint before the Tribunal awaiting the outcome of this action. In addition, there are two previous decisions of the Tribunal in which a differently constituted Tribunal in each matter held that it did have the power to hear and determine an application for a stay of proceedings on the ground of abuse of process. In all those circumstances, it is appropriate for this Court to hear the Board’s application for judicial review and to determine it on the merits.
The complaint
The complaint against N relates to his management and treatment of one D in 1984 and 1985. N and D formed a de facto relationship which commenced in about 1985 and continued until at least March 2000. There was a child of the relationship.
On 30 January 2002, D wrote a letter to the Board complaining of N’s conduct. That complaint was investigated by the Board and resulted in the complaint laid before the Tribunal by the Board on 22 June 2004.
N asserts that the delay by D in complaining to the Board is excessive and that it means that the proceedings before the Tribunal are an abuse of process and ought to be stayed. It seems that the Tribunal also considered that N may assert that the proceedings are an abuse of process because they have not been brought for a proper purpose.
The statutory scheme
As the long title to the Medical Practitioners Act 1983 states, it is (relevantly) “[a]n Act to provide for the registration of medical practitioners” and “to regulate the practice of medicine for the purpose of maintaining high standards of competence and conduct by medical practitioners in South Australia”. It defines conduct that is unprofessional conduct for the purposes of the Act (s 5) and it establishes a disciplinary scheme involving a Board and a Tribunal.
Part 2 of the Medical Practitioners Act 1983 deals with the establishment of the Board and the Tribunal. The Board is a body corporate with perpetual succession and a common seal (s 6). It consists of eight members appointed by the Governor on the nomination of various people and entities (s 7). The President of the Board is a medical practitioner and the quorum of a meeting of the Board is five members (ss 8, 9). The functions and powers of the Board are set out in s 13, but for present purposes it is not necessary to relate the details of that section. The Board may summons witnesses, order the production of books and equipment, require a witness to take an oath or affirmation, and require a witness to answer questions put to him (s 16). The Board is not bound by the rules of evidence and may make orders for costs against a party to proceedings before it (ss 17, 19). A party to proceedings before the Board is entitled to be represented by a legal practitioner (s 18). A member of the Board is given certain powers in conducting an investigation. When conducting an inquiry into alleged unprofessional conduct, the Board must give a party proper notice of the proceedings, a reasonable opportunity to call and give evidence, to examine and cross-examine witnesses, and to make submissions to the Board (s 57).
The Tribunal consists of five members, one of whom is to be the Chief Judge of the District Court of South Australia or his or her nominee (s 24(1)(a)). Of the other four members, three are nominees of the Minister and one is the nominee of the South Australian Branch of the Australian Medical Association Incorporated (s 24(1)(b)). Two of the Minister’s nominees are to be medical practitioners and the third is to be neither a medical practitioner nor a legal practitioner (s 24(2)). A District Court judge or, in certain circumstances, a magistrate will preside over the Tribunal. For the purpose of the hearing and determination of proceedings the Tribunal shall be constituted of the presiding officer and not less than two other members of whom at least two are medical practitioners (s 25). A question arising before the Tribunal is to be determined in accordance with the opinion of a majority of members constituting the Tribunal or where they are equally divided in opinion, in accordance with the opinion of the presiding officer (s 26).
For the principles governing hearings and inquiries before the Tribunal and the “procedural” powers of the Tribunal, one must go to Part 4 of the Act, which deals with proceedings before the Board and the Tribunal. The Tribunal must give a party proper notice of proceedings, a reasonable opportunity to call and give evidence, to examine and cross-examine witnesses, and to make submissions to the Tribunal (s 61(1)). A party to proceedings before the Tribunal is entitled to be represented at the proceedings by a legal practitioner (s 61(2)). Like the Board, the Tribunal is not bound by the rules of evidence and may inform itself upon any matter as it thinks fit (s 62).
Section 63 of the Medical Practitioners Act 1983 sets out the procedural powers of the Tribunal. It provides:
(1)     For the purposes of proceedings under this Division, the Tribunal may –
(a)by summons signed on behalf of the Tribunal by a member of the Tribunal, or by the Registrar, require the appearance before the Tribunal of any person or the production to the Tribunal of any relevant books or equipment; or
(b)inspect any books or equipment produced to it, and retain them for such reasonable period as it thinks fit, and make copies of the books, or of any of their contents; or
(c)require a person appearing before the Tribunal to make an oath or affirmation that he will truly answer all questions put to him relating to any matter in issue before the Tribunal (which oath or affirmation may be administered by a member of the Tribunal or the Registrar); or
(d)require a person appearing before the Tribunal to answer any relevant question put to him by any member of the Tribunal or by a party or person appearing on behalf of a party to a proceeding before the Tribunal.
(2)     Upon the receipt of an application for the issue of a summons under this section, a member of the Tribunal or the Registrar may, without referring the matter to the Tribunal, issue a summons on behalf of the Tribunal.
(3)     If a person –
(a)who has been served with a summons to appear before the Tribunal fails, without reasonable excuse, to appear in obedience to the summons; or
(b)who has been served with a summons to produce relevant books or equipment fails, without reasonable excuse, to comply with the summons; or
(c)misbehaves himself before the Tribunal, wilfully insults the Tribunal or any member of the Tribunal, or interrupts the proceedings of the Tribunal; or
(d)refuses to be sworn or to affirm, or refuses or fails to answer truthfully any relevant question, when required to do so by the Tribunal,
he shall be guilty of an offence and liable to a penalty not exceeding five thousand dollars or imprisonment for three months.
(4)     A person who appears as a witness before the Tribunal has the same protection as a witness in proceedings before the Supreme Court.
(5)     If a person summoned as mentioned in subsection (1) fails to produce any books or equipment or to appear before the Tribunal as required by the summons, or having appeared refuses to be sworn or to affirm, or to answer a relevant question when required to do so by the Tribunal, a certificate of the failure or refusal, signed by a member of the Tribunal or by the Registrar, may be filed in the Supreme Court.
(6)     Where a certificate has been filed under subsection (5), a party requiring the production of books or equipment or the appearance of a person before the Tribunal may apply (either ex parte or on notice) to the Supreme Court for an order directing the production of the books or equipment or that that person attend, or be sworn or affirm, or answer questions (as the case may require) and on that application the court may make such orders as it thinks fit (including orders for costs).
(7)     A person may be required to answer a question by the Tribunal notwithstanding that the answer to that question might tend to incriminate him, or to produce any books or equipment notwithstanding that they might tend to incriminate him, but if that person objects to answering any question a note of that objection shall be taken down, and the answer shall not be admissible against him in any criminal proceedings (except in proceedings for perjury).
(8)     In the course of an inquiry, the Tribunal may –
(a)receive in evidence a transcript of evidence taken in proceedings before a court, tribunal or other body constituted under the law of South Australia or of any other State or Territory of the Commonwealth or of another country, and draw any conclusions of fact from the evidence that it considers proper;
(b)adopt, as in its discretion it considers proper, any findings, decision, judgment, or reasons for judgment, of any such court, tribunal or body that may be relevant to the proceedings.
Two points may be made about s 63. First, the Tribunal itself is not given the power in express terms to punish for contempt. Conduct that before a court might constitute contempt in the face of the court is made an offence by reason of s 63(3)(c). Secondly, the obligation to answer a summons, be sworn or to answer questions is enforced by an application to this Court and an order of this Court.
The Tribunal is given the power to make orders as to costs against a party to proceedings and the power to make rules regulating the practice and procedure of the Tribunal (s 64 and s 65).
I turn now to the hearing and determination of allegations of unprofessional conduct against a medical practitioner. The Act establishes a two-tiered structure. A complaint alleging unprofessional conduct against a medical practitioner may be laid before the Board by the Registrar of the Board, the Minister, the South Australian Branch of the Australian Medical Association Incorporated, or by a person aggrieved by conduct of the medical practitioner. Where a complaint has been laid, the Board must inquire into the subject matter of the complaint unless the Board considers that the complaint is frivolous or vexatious or it lays a complaint before the Tribunal (s 54(2)). After conducting an inquiry, the Board has the power to reprimand the medical practitioner (s 54(5)). If the allegations are sufficiently serious, the Board may lay a complaint before the Tribunal (s 54(4)).
Section 58 deals with proceedings before the Tribunal. It provides:
(1)     A complaint alleging unprofessional conduct –
(a)    on the part of a medical practitioner; or
(b)on the part of a person who was at the relevant time a medical practitioner,
may be laid before the Tribunal by the Board.
(2)     Where a complaint has been laid under this section, the Tribunal shall inquire into the subject matter of the complaint.
(3)     If, after conducting an inquiry under this section, the Tribunal is satisfied –
(a)in the case of a medical practitioner, that he has been guilty of unprofessional conduct, it may, by order, do one or more of the following:
(i)    reprimand the medical practitioner;
(ii)order the medical practitioner to pay a fine not exceeding five thousand dollars;
(iii)impose conditions restricting his right to practise medicine;
(iv)suspend the registration of the medical practitioner by removing his name from the general register or the specialist register for a period not exceeding one year;
(v)cancel the registration of the medical practitioner on the general register or on the specialist register; or
(b)in the case of a former medical practitioner, that when he was a medical practitioner he was guilty of unprofessional conduct, it may order him to pay a fine not exceeding five thousand dollars.
It will be noted that only the Board may lay a complaint alleging unprofessional conduct on the part of a medical practitioner before the Tribunal (s 58(1)). A person aggrieved by conduct of a medical practitioner, the Registrar, the Minister, or the South Australian Branch of the Australian Medical Association Incorporated do not have standing to lay a complaint before the Tribunal. The Tribunal shall inquire into the subject matter of a complaint and, unlike the Board, is not given an express power to decline to conduct an inquiry on the ground that the complaint is frivolous or vexatious. The Tribunal has the power to make a wide range of significant orders against a medical practitioner, including an order cancelling the registration of the medical practitioner (s 58(3)).
Section 66 confers rights of appeal to this Court against specified orders of the Board or the Tribunal.
The Tribunal’s reasons
The Tribunal referred to two previous decisions of the Tribunal where it had held that it did have the power to hear and determine an application for a stay of proceedings on the ground that the proceedings constituted an abuse of process: Medical Board of South Australia v Bradley (1999) 203 LSJS 115; Medical Board of South Australia v C [2000] SADC 103.
The Tribunal noted that it was a creature of statute and possessed only the powers given to it by the Medical Practitioners Act 1983. It is not a court and does not have the powers of a court. The Tribunal held that it did not have the power to order a stay of proceedings for three reasons. First, there was nothing in the provisions of the Medical Practitioners Act 1983 which suggested that there could be an implied power to order a stay because the Act provides that the Tribunal shall inquire into the subject matter of the complaint (s 58(2)). Secondly, there was no need for the Tribunal to have the power to deal with frivolous or vexatious complaints because the Board has the power to deal with such complaints (s 54(2)) and it is only the Board which can then lay a complaint before the Tribunal. Thirdly, the Tribunal’s powers are listed in s 58 of the Medical Practitioners Act 1983 and those powers do not include a power to stay proceedings as an abuse of process, or indeed to dismiss a complaint as being frivolous or vexatious.
Does the Tribunal have the implied power to stay proceedings before it?
This Court has the power to order a stay of proceedings before the Tribunal on the ground that the proceedings constitute an abuse of process: Herron v McGregor (1986) 6 NSWLR 246 at 251; Watson v Attorney-General (NSW) (1987) 8 NSWLR 685 at 696 - 697; Walton v Gardiner (1993) 177 CLR 378 at 395 - 396. The power is part of the supervisory powers of this Court. The power may be exercised not only in relation to criminal or civil proceedings but also in relation to disciplinary proceedings. In Herron v McGregor (supra) the New South Wales Court of Appeal left open the question of whether the New South Wales Medical Disciplinary Tribunal had a similar power to grant a stay (at 251).
This Court also has the power to stay proceedings before it on the ground that the proceedings constitute an abuse of process. The power is part of the “well of undefined powers” this Court has as part of its inherent jurisdiction: Grassby v The Queen (1989) 168 CLR 1; DJL v Central Authority (2000) 201 CLR 226 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 240- 241.
The Tribunal does not have inherent jurisdiction. It is not a common law court as were the three common law courts at Westminster. However, it has such powers which, as a matter of statutory construction, are expressly or by implication conferred on it by the Medical Practitioners Act 1983. The distinction between a power that is part of the inherent jurisdiction and an implied statutory power, and the test for determining whether there is an implied statutory power of the nature alleged has been considered in a number of High Court authorities.
In R v Forbes; Ex parte Bevan (1972) 127 CLR 1 Menzies J said (at 7):
Inherent jurisdiction is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as "inherent jurisdiction", which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have "inherent jurisdiction".
In Grassby v The Queen (supra), Dawson J, who delivered the leading judgment, said (at 16 – 17):
[I]t is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J. points out, fundamental.

Dawson J went on to consider when a statutory power will arise by implication and said (at 17):
It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be "derived by implication from statutory provisions conferring particular jurisdiction".
In Pelechowski v Registrar,Court of Appeal (NSW) (1999) 198 CLR 435 (“Pelechowski”) Gaudron, Gummow and Callinan JJ referred to Grassby v The Queen (supra) and made the following observations as to the circumstances in which a statutory power will be implied (at 451 – 452) (footnotes omitted):
Dawson J concluded that recognition of the existence of the powers which an inferior court must possess by way of necessary implication will be called for:
“whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’.”
The term necessary in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term necessary does not have the meaning of essential; rather it is to be subjected to the touchstone of reasonableness.
In the end, the question in this case is whether, as a matter of the statutory construction of the Medical Practitioners Act 1983, the power to order a stay of proceedings on the ground of abuse of process is legally ancillary to some other power which the Tribunal possesses, or is reasonably required for the purposes of some other such power or powers.
It is unnecessary to discuss the common law doctrine of abuse of process in any detail. The categories of circumstances which constitute an abuse of process are not closed. The authorities establish that an abuse of process will be made out if unreasonable delay by the prosecuting authority means that a person will not receive a fair trial, or if it is established that the proceedings are brought for a collateral and improper purpose. I refer to the discussion of the doctrine of abuse of process in Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23 and Williams v Spautz (1992) 174 CLR 509.
The question in this case is not whether it would be convenient or desirable for the Tribunal to have the power to stay proceedings before it, or whether it would be more convenient for a party to be able to make such an application to the Tribunal rather than institute an action in this Court. The question is whether as a matter of statutory construction such a power should be implied.
Although the express provisions of the Medical Practitioners Act 1983 do not provide a clear answer to the present problem, they are suggestive of the fact that the Tribunal does not have implied power to stay proceedings on the ground of abuse of process. The Tribunal is not a court in the accepted sense of that term and it is certainly not a court of record. I do not think the reasoning applied in cases such as Rona v District Court of South Australia (1995) 63 SASR 223, which concerned the District Court, a court created by statute and declared to be a court of record, or Wunsch v SA Police (1995) 64 SASR 203, which concerned the Magistrates Court, a court created by statute and declared to be an inferior court of record having state-wide jurisdiction, applies in the case of the Tribunal established under the Medical Practitioners Act 1983.
In terms of the express provisions of the Act, the starting point is s 58(2), which provides that the Tribunal shall inquire into the subject matter of a complaint. The use of the word shall implies that in this case the power to inquire must be exercised (Acts Interpretation Act1915, s 34). A power to stay proceedings on the ground of abuse of process would be inconsistent with such an obligation. The Board points to the fact that the word shall, rather than the word must, has been used in s 58, whereas in the section dealing with the Board’s obligation to inquire the word used is must. The difference between shall and must was discussed in Varverakis v Police (2003) 225 LSJS 286. It may be accepted that if there were other indicators in the Act, the word shall might be read so as to allow of exceptions to the obligation to inquire. However, I do not think there are such other indicators.
The Board is under no obligation to inquire into the subject matter of a complaint if it considers that the complaint is frivolous or vexatious. Although not expressly stated in the Act, I assume that the Board would make an order dismissing such a complaint. The power to dismiss a complaint on the ground that it is frivolous or vexatious and the power to stay proceedings on the ground that they constitute an abuse of process overlap, but are not identical. Nevertheless, the fact that the Board is given the power to dismiss a complaint on the ground that it is frivolous or vexatious, and the Tribunal is not, is suggestive of a legislative intent that the Tribunal cannot decline to inquire into the subject matter of a complaint. It seems to me that this follows first, simply because the power is given to the Board but not to the Tribunal and secondly, because it highlights the two-tiered nature of the disciplinary procedure, with frivolous and vexatious complaints “filtered out” by the Board, which is the only body which can then lay a complaint before the Tribunal. The two-tiered nature of the disciplinary procedure does not mean that there might never be a case to reach that Tribunal which, for one reason or another, should not proceed, but it is suggestive of the fact that the legislature has addressed the question and in express terms devised a particular structure to deal with it.
Finally, in terms of the express provisions of the Act, I think the fact that certain orders and acts of the Tribunal are only enforceable by or through orders of this Court is an indicator that Parliament did not consider that the Tribunal would be a body with wide-ranging implied powers.
As against these considerations, it might be said that it is clear from the express provisions of the Act that the Tribunal exercises a quasi-judicial power and it is clear from provisions such as s 61 and the nature of the orders which it may make, that it must accord a fair hearing to the parties to the proceedings before it. I think the same may be said of the Board when it is enquiring into allegations of unprofessional conduct (s 57).
It might also be said with considerable force that this Court should have no difficulty in inferring that the Tribunal has the power to prevent an abuse of its own processes.
However, I do not think it is permissible to imply a power to stay proceedings on such a broad basis and it is necessary to return to the test formulated by the majority in Pelechowski. I do not think it can be said that the power to stay proceedings on the ground of abuse of process is legally ancillary to a power given to the Tribunal by the provisions of the Medical Practitioners Act 1983. Nor do I think it can be said that the power is reasonably required for the exercise of an express power in the Act. Ultimately, the question is whether a power can be implied as a matter of statutory construction and authorities such as R v Forbes; Ex parte Bevan (supra), Grassby v The Queen (supra), Pelechowski and DJL v Central Authority (supra) suggest that even though the touchstone of necessity is reasonableness, and not whether the power is essential, there must be a firm basis in the relevant legislation for implying the asserted power. There is no such basis here and in fact, as I have already said, the express legislative provisions point against the existence of such a power.
In my opinion, the Tribunal was correct to conclude that it did not have the power to stay proceedings before it on the ground that the proceedings constituted an abuse of process.
Conclusion
The application for judicial review should be dismissed. I would hear the parties as to what other orders should be made.
LAYTON J: I agree with the conclusion of Besanko J that the application should be dismissed and with His Honour’s reasons for so concluding.