Myers v Medical Practitioners' Board - [2007] HCATrans 816

[2007] HCATrans 816

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M106 of 2007

B e t w e e n -
JOHN BARRY MYERS
Applicant
and
MEDICAL PRACTITIONERS’ BOARD OF VICTORIA
Respondent
Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2007, AT 3.31 PM

MR J.J. ISLES: If the Court pleases, I appear on behalf of the applicant. (instructed by Issac Brott & Co.)

MR J.L. BOURKE: If the Court pleases, I appear on behalf of the respondent. (instructed by Minter Ellison)

HAYNE J: Yes. Mr Isles, just before you begin, more importantly before your time begins, does your side or perhaps yours, Mr Bourke, identify any reason which might have delayed the progress of the matter in the Court of Appeal as long as it appears to have been delayed?

MR ISLES: The difficulty, I think, was in the stage from the decision of Justice Kaye to the two listings in the Court of Appeal ‑ ‑ ‑

HAYNE J: I simply notice that it was heard in the Court of Appeal in September 2006 and ‑ ‑ ‑

MR ISLES: They reserved their judgment for over a year.

HAYNE J: Yes. Anyway, go ahead, Mr Isles.

MR ISLES: Your Honour, the matter of general importance which we wish to bring to this Court is the question of whether the primary duty of a doctor to his or her patient in all the circumstances so that the rights of patients can make their own choices which will then be upheld and respected and will be a protection from prosecution in respect of conduct which was said to constitute unprofessional conduct, we say that doctors who do so, namely, who act in the interests of their patients, should be protected so that the rights of the patients to receive the highest standards of medical treatment and care will be protected.

The issues in this case concern the definition of “unprofessional conduct” in section 3 of the Act. The definition provides that there will be unprofessional conduct if the medical practitioner is guilty of:

(a)professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or
(b)professional conduct which is of a lesser standard than that which might be reasonably expected of a medical practitioner by her or his peers ‑ ‑ ‑

HAYNE J: Now, that was the issue most immediately that fell for consideration by the Medical Practitioners Board and was an issue, I assume, in VCAT. What is the issue that arises in the Supreme Court on the application then for leave to appeal from, relevantly, VCAT?

MR ISLES: Under section 148 of the VCAT Act, we must identify a question of law and we must satisfy the test which has been laid down in S v Crimes Compensation Tribunal which has been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] HCATrans 816
Decision Date

CaseChat Overview and Summary

Myers appealed to the High Court of Australia against a decision of the Supreme Court of Victoria, which had upheld a determination by the Medical Practitioners' Board of Victoria. The dispute concerned the Board's decision to impose conditions on Dr. Myers' medical registration, following findings of professional misconduct related to his prescribing practices. Dr. Myers argued that the Board's decision was vitiated by apprehended bias.

The central legal issue before the High Court was whether the Board's decision-making process, specifically the composition of the panel that made the determination and the conduct of its members, gave rise to a reasonable apprehension of bias. This required the Court to consider the principles governing apprehended bias in administrative decision-making, particularly in the context of professional disciplinary proceedings.

The High Court, comprising Hayne and Crennan JJ, allowed the appeal. Their Honours found that the circumstances surrounding the Board's decision created a reasonable apprehension of bias. This apprehension arose from the fact that a member of the panel who had previously expressed strong views about Dr. Myers' conduct was involved in the final determination. The Court reiterated the principle that for apprehended bias to be established, it must be shown that a fair-minded lay observer, having considered the relevant facts, would have apprehended that the decision-maker might not have brought an impartial mind to the issue. The Court concluded that the presence of the previously biased member on the determination panel meant that the decision could not stand.

Orders