R v Verdins
[2007] VSC 147
•15 May 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE COMMON LAW DIVISION |
No. 7307 of 2006
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 27(1) OF THE
OMBUDSMAN ACT 1973 (Vic)
| DR PAUL NISSELLE | Plaintiff |
| (In his capacity as Convenor of Medical Panels appointed under section 63(2) of the Accident Compensation Act 1985 (Vic)) | |
| v | |
| GEORGE BROUWER | Defendant |
| (In his capacity as the Ombudsman appointed under section 3 of the Ombudsman Act 1973 (Vic)) |
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| JUDGE: | GILLARD J |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 April 2007 |
| DATE OF JUDGMENT: | 15 May 2007 |
| CASE MAY BE CITED AS: | Dr Paul Nisselle v George Brouwer |
| MEDIUM NEUTRAL CITATION: | [2007] VSC 147 |
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Application pursuant to S.27 of the Ombudsman Act 1973 – Issue of Ombudsman’s jurisdiction pursuant to S.13(1) of the Ombudsman Act 1973 to enquire into the appointment of a Medical Panel by the Convenor pursuant to S.63(4) of the Accident Compensation Act 1985 – Whether the conduct is administrative action – Convenor’s conduct administrative action – Ombudsman’s jurisdiction precluded by S.16(3)(a) of the Ombudsman Act 1973 because by reason of S.65(10) of the Accident Compensation Act 1985 the Convenor has the same protection and immunity as a Supreme Court Judge.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Uren QC with | Monahan + Rowell |
| Mr B.F. Quinn | ||
| For the Defendant | Mr M.A. Robins | Victorian Government Solicitor |
TABLE OF CONTENTS
Parties ...................................................................................................................................................1
The Dispute and Issues.....................................................................................................................1
Functions and Jurisdiction of the Ombudsman...........................................................................7
Appointment of a Medical Panel – is it an Administrative Act? .............................................9
Ombudsman’s Lack of Authority under s.13(3)(a) ....................................................................28
Conclusion.........................................................................................................................................32
HIS HONOUR:
A proceeding instituted by originating motion, in which the plaintiff seeks a declaration that the defendant, the Ombudsman of this State, does not have jurisdiction to enquire into or to investigate certain complaints made to him by members of the public, or is precluded by reason of statute from enquiring into or investigating the complaints. The proceeding is brought pursuant to s.27 of the Ombudsman Act 1973 (“the Act”).
Parties
The plaintiff, Dr Paul Nisselle (“Dr Nisselle”), is and was at all relevant times a medical practitioner and the Convenor of Medical Panels appointed by a Minister of the Crown pursuant to s.63 of the Accident Compensation Act 1985 (“the AC Act”). Dr Nisselle was also appointed by the Governor in Council as a Member of the Medical Panels.
The defendant, George Brouwer (“the Ombudsman”), is the Ombudsman in this State and was appointed by the Governor in Council pursuant to the Act.
The Dispute and Issues
The AC Act was enacted in 1985. One of the objects of the Act was to provide an adequate and just compensation scheme for workers who suffered injury at work. Another object was to ensure that the costs associated with the compensation scheme were contained, in order to minimise the burden on Victorian businesses.[1] Part 3 of the Act deals with dispute resolution. Section 39 gives exclusive jurisdiction to the County Court to enquire into, hear and determine, inter alia, any question or matter arising under the AC Act, from any decision of, inter alia, the Victorian WorkCover Authority, an employer or self insurer. A like jurisdiction was also given to the Magistrates’ Court in respect of any issue where the value did not exceed $40,000 or
was in respect of the making of weekly payments.[2]
[1] See s.3.
[2] See s.43.
Section 45 deals with medical questions. Sub-section (1) provides that the County Court, when exercising jurisdiction, may refer a medical question or, if a party to the proceeding requests that a medical question be referred, must do so to “a Medical Panel for an opinion under this Division”. A certificate or report given by a Medical Panel is admissible in evidence in any proceeding under the Act by reason of s.48(1).
Division 3 of Part 3 deals with the establishment of a Medical Panel and its powers and procedures.
Section 63(1) provides that a Panel must be constituted as necessary for the purposes of the AC Act to carry out functions conferred on it under that Act. The AC Act empowers the Governor in Council to appoint medical practitioners for the purpose of constituting Panels.[3] From the list of Members so appointed, the Minister is obliged to appoint a Convenor and also a Deputy Convenor. Dr Nisselle was appointed a Convenor. The Convenor appoints a Medical Panel. Section 63(4) provides:
[3] See s.63(2).
“63. Establishment and constitution
(4) A Panel constituted after the commencement of section 27 of the Accident Compensation (Amendment) Act 1998 is to consist of the number of Members not exceeding 5 as is determined by the Convenor of the Medical Panels in each particular case.”
The phrase “medical questions” is defined by s.5 and covers a myriad of questions that could arise concerning a claim by a worker based upon physical or mental injury. The function of the Medical Panel is dealt with by s.67. Its function is to:
“give its opinion on any medical question in respect of injuries arising out of, or in the course of or due to the nature of employment before, on or after the commencement of s.10 of the Accident Compensation (WorkCover) Act 1992 referred by a Conciliation Officer or the County
Court or the Authority or a self insurer”.[4]
[4] See s.67(1).
The Panel is obliged to give its opinion on a medical question. It is obliged to form its opinion within 60 days after the reference, although the period can be extended. Section 68(2) provides:
“68. Opinions
(2) The Medical Panel to whom a medical question is so
referred must give a certificate as to its opinion.”
Having done that, it must give its opinion in writing within seven days to whomever referred the matter to it.
Section 68(4) states the effect of the opinion. It provides:
“(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.” (Emphasis added).
It is apparent that the opinion of the Medical Panel is final and binding and must be accepted as final and conclusive by, inter alia, a Court. It is trite to observe that the opinion will have a substantial and conclusive effect upon the rights of the parties concerned. There is no right of appeal from the opinion of the Medical Panel. However, judicial review of the Medical Panel’s decision is available to the Supreme Court pursuant to the Administrative Law Act 1985 or the common law judicial review jurisdiction of the Court.
During February and March 2006, the Ombudsman forwarded three letters to Dr Nisselle, referring to complaints made by three persons to the Ombudsman’s office and indicating that his office was considering whether to conduct an investigation under the Act.
It was contended by counsel on behalf of the Ombudsman that the identity of the complainants should not be disclosed, and reference was made to s.20 of the Act. Whether or not s.20 prevents the identity of the complainants from being revealed is a moot point, but in the circumstances counsel agreed with the Court’s view that it was unnecessary to identify them in these reasons. Accordingly, I will refer to the three persons as A, B and C.
The complaints made are, to a degree, similar. Complainant A complained that the presiding Member of a Medical Panel, who had examined A, was not acting independently because the medical practitioner had also performed medical examinations for the Victorian WorkCover Authority. The allegation was one of perceived bias. The Ombudsman informed Dr Nisselle, in a letter dated 14 February 2006, that he was making initial inquiries under s.13A of the Act to decide whether this was a matter he should investigate. In the letter, the Ombudsman referred to information obtained from the Registrar of Medical Panels that practitioners who held contract positions with the WorkCover Authority or its agents or practitioners, and who undertook a high volume of medical assessments for agents, carried a high risk of apprehension of bias and were therefore not considered suitable candidates for appointment to Medical Panels.
The Ombudsman sought responses to the queries raised in his letter and Dr Nisselle on 21 February 2006 forwarded a letter seeking to answer those queries. Dr Nisselle emphasised that doctors who perform an examination pursuant to s.112 of the AC Act[5] were not employees or agents of the WorkCover Authority but were, in fact, independent consultants performing independent medical examinations. He stated that the complainant misunderstood the position, believing that the medical practitioner was employed by the WorkCover Authority. He went on to observe that in considering appointment to a Medical Panel, a factor that was taken into account was the volume of examinations performed pursuant to s.112 of the Act. Dr Nisselle stated that the concern about apprehension of bias or conflict of interest was recognised and balanced against “other factors such as the availability of medical practitioners practising in relevant specialties for appointment to a Medical Panel and the volume of referrals for a Medical Panel opinion, each of which must be produced within a statutory time frame (60 days) with the resources available.”
[5] Under s.112, the Victorian WorkCover Authority or a self-insurer may require a worker making a claim to submit to an independent medical examination.
Dr Nissell also opined that it was “not my role to determine whether there actually is a conflict of interest or there is an actual apprehension of bias for a particular eligible medical practitioner, because if there was, then that medical practitioner would not have been appointed to the list of eligible medical practitioners by the Governor in Council.”
I interpolate to observe that I have some doubts about the procedures adopted by Dr Nisselle with respect to his role.
Complainant B also made a complaint alleging possible conflict of interest and perceived bias, and on 21 February 2006, the Ombudsman informed Dr Nisselle of the complaint and sought a response to Complainant B’s allegations. In substance, Complainant B alleged that two Members of the Panel, who were assessing the complainant, had a possible conflict of interest because they relied upon a report by another medical practitioner who had examined Complainant B for the Victorian WorkCover Authority. It was asserted that the conflict of interest arose because all three, that is, the Members of the Panel and the medical practitioner, were members of the academic staff at the Monash University Faculty of Medicine. It was asserted by the Ombudsman that the closeness of the association of the three raised the possibility of apprehended bias. Again, it was noted that the Ombudsman was making initial inquiries to determine whether or not he would investigate the matter. Dr Nisselle responded by letter dated 1 March 2006. Dr Nisselle reiterated what he had said in his earlier letter, namely, that he did not consider it was his role to determine whether there was a possible conflict of interest or an apprehension of bias when appointing a medical practitioner to the Panel. As I have stated, I query the wisdom of that observation. Dr Nisselle concluded that if the complainant considered there was a conflict of interest or an apprehension of bias or that the Panel lacked appropriate expertise, then the appropriate avenue for the complainant was to apply to the Supreme Court for judicial review.
Complainant C made a complaint to the Ombudsman in March 2006. The Ombudsman wrote to Dr Nisselle on 28 March 2006. Complainant C also raised a concern as to conflict of interest regarding the appointment of Members to a Medical Panel. Evidently, the complainant had complained that the presiding Member of a Panel was the business or practice partner of the doctor who had carried out a medical examination under s.112 of the Act at the request of the Authority or self insurer. After Complainant C had complained, a new presiding Member was appointed.
The Ombudsman informed Dr Nisselle that he had decided to formally investigate the complaints under s.14 of the Act. On 6 April 2006, Dr Nisselle informed the Ombudsman that he had received legal advice to the effect that the Ombudsman did not have jurisdiction to consider the complaints and was precluded from enquiring into or investigating the actions of the Convenor. Dr Nisselle followed up with a response to the matters raised by Complainant C, stating that the presiding Member of the Panel had been replaced.
On 3 July 2006, the proceeding in this Court was instituted by Originating Motion. It was contended by counsel on behalf of Dr Nisselle that the Ombudsman did not have the jurisdiction or power to conduct any inquiry pursuant to the Act. It was submitted, in the alternative, that if the Ombudsman did have jurisdiction or power to investigate, then by reason of the provisions of ss.65(10) of the AC Act and of s.13(3)(a) of the Act, he was precluded from doing so. It was submitted on behalf of the Ombudsman that he did have the jurisdiction and was not precluded from performing his statutory functions by the said statutory provisions. These are the issues for consideration and determination in this proceeding.
The application by Dr Nisselle is brought pursuant to s.27 of the Act, which provides:
“Application to Supreme Court
27. Application to Supreme Court
(1) Where in the course of an investigation under this Act the question arises as to whether the Ombudsman has jurisdiction to conduct the investigation, the Ombudsman or the party subject to the investigation, may make an application to the Supreme Court for a determination of that question, and on the application the Court may make such order as it considers proper.
… (3)
For the purposes of this section the principal officer of the authority affected by the investigation shall be deemed to be a party subject to the investigation.”
Functions and Jurisdiction of the Ombudsman
Part 3 of the Act deals with the functions and jurisdiction of the Ombudsman. Section 13 relevantly provides:
“13. Functions and jurisdiction
(1)
The principal function of the Ombudsman shall be to enquire into or investigate any administrative action taken in any Government Department or Public Statutory Body to which this Act applies or by any Member of staff of a municipal council.
(2)
Subject to this section this Act applies to all Government Departments and Public Statutory Bodies except those or the branches of those mentioned in the Schedule and to Members of staff of all municipal councils.”
(Emphases added).
Section 2 defines “Public Statutory Body” as a “body of persons constituted or established under an Act for a public purpose in respect of which the Governor in Council or a Minister has a right to appoint all or some of the Members.”
There is no dispute between the parties that the Convenor of the Medical Panels, Dr Nisselle, is a Public Statutory Body.
It is the contention of Dr Nisselle that the Ombudsman does not have jurisdiction to enquire into or investigate the complaints, because when he exercises the statutory power under s.63(4) of the AC Act to constitute a Medical Panel, the exercise of the power is not an administrative action within the meaning of s.13(1) of the Act.
In the alternative, it was submitted on behalf of Dr Nisselle that if the exercise of his statutory power in appointing a Medical Panel was an administrative action, then by reason of s.65(10) of the AC Act, which gives Dr Nisselle the “same protection and immunity as a Judge of the Supreme Court” when he appoints a Panel, the Ombudsman is precluded by reason of s.13(3)(a) of the Act from enquiring into or investigating any administrative action of Dr Nisselle as the Convenor.
Section 65(10) of the AC Act provides:
“(10) The Convenor of the Medical Panels and a Member of a Medical Panel has in the performance of his or her duties as the Convenor of the Medical Panels or as a Member of a Medical Panel the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.”
Section 13(3)(a) of the Act provides:
“Nothing in this Act shall authorise the Ombudsman to enquire into or
investigate any administrative action taken –
(a) by a court of law or by a Judge or a magistrate;”
The submission is simply put. By reason of s.65(10) of the AC Act, Dr Nisselle has the same protection and immunity as a Judge of the Supreme Court in performing his duties, and by reason of s.13(3)(a) of the Act, the Ombudsman is precluded from inquiring into or investigating any administrative action taken by a court of law or by a Judge.
Counsel for the Ombudsman, on the other hand, submits that the performance by Dr Nisselle of the statutory function to appoint a Medical Panel is an administrative act within the meaning of s.13(1) of the Act, and that s.65(10) of the AC Act, when combined with s.13(3)(a) of the Act, does not preclude the Ombudsman from enquiring into and investigating the exercise of power by Dr Nisselle as the Convenor.
Appointment of a Medical Panel – is it an Administrative Act?
The scheme of the AC Act requires Dr Nisselle as Convenor to appoint not more than 5 medical practitioners to constitute a Panel from the list of Members when a referral is made. Once appointed, the Panel considers the issues and eventually arrives at an opinion. The opinion binds the Court which is hearing the dispute between worker and employer. In making his decision to appoint a Panel and its membership, Dr Nisselle has to consider a number of matters. By reason of s.63(5), if a medical practitioner on the list of Members has treated or examined or been engaged to treat or examine a worker, the practitioner must not be a Member of a Medical Panel examining the worker. It is implicit in the legislative scheme for the determination of compensation that the practitioners forming the Medical Panel would have the necessary expertise to consider the particular medical problems of the worker. Dr Nisselle, no doubt, would give consideration to that issue. The Convenor may give directions as to the arrangement of business of Medical Panels.[6] By reason of s.65(9), the Convenor may give directions as to the procedures of the Medical Panels.
[6] See s.65(7).
It is noted that s.65(8) of the AC Act authorises the Minister, for the purpose of ensuring procedural fairness in the procedures of the Panels and facilitating the proper administration of the Panels, to issue guidelines with respect to procedures. Despite this power, no relevant guidelines have been issued. I have set out above the views of Dr Nisselle with respect to appointment of Members of the Panel and issues of possible conflict of interest or perception of bias by Members. If a worker raises an issue of conflict of interest or perception of bias, the Convenor may take the step of removing the Member and replacing him or her. The matters I have summarised provide evidence of the nature of the duties performed by Dr Nisselle as Convenor of a Medical Panel.
Section 2, which is the definition section, defines “administrative action” as meaning:
“Any action relating to a matter of administration, and includes –
(a) a decision and an act;
(b) a refusal or failure to take a decision or to perform an act;
(c) the formulation of a proposal or intention; and
(d) the making of a recommendation (including a recommendation made to a Minister).”
(Emphases added).
The definition is neither illuminating nor helpful. It states the obvious. The examples given do not provide any real assistance or guidance to determine what is “administrative action”. Parliament, in using the phrase “relating to”, has broadened the definition of administration. The expression indicates a connection with or relationship to administration. One finds in legislation a number of phrases used to define a relationship or connection, such as “in respect of” and “in relation to”. The Courts have considered these phrases. In Trustees Executors and Agency Co Ltd v Reilly,[7] Mann CJ said:
“The words ‘in respect of’ are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer.”
[7] [1941] VLR 110 at 111.
His Honour was quoted with approval by Taylor J in State Government Insurance Office (Queensland) v Crittenden.[8] In Glenister v Dillon,[9] Gillard J, dealing with the definition in the Act, said:
“The introduction into the definition of the words ‘relating to’ gives a wider connotation to the expression being defined. And ‘administrative action’ could therefore comprehend, not only any action which would fall strictly into the area of the performance of executive or administrative function, but also any other action which might be regarded as reasonably incidental to the performance of such function.”
[8] (1966) 117 CLR 412 at 416.
[9] [1976] VR 550 at 558.
Menhennit J, in the same case, said:[10]
“The next question is what is meant in the context by the expression ‘any action relating to a matter of administration’. The words ‘relating to’ are wide words and comprehend more than would be comprehended by a concept such as ‘constituting’. But the question remains as to what is meant in the context by the expression ‘a matter of administration’. ‘Matter’ presumably means subject matter and accordingly the definition means any action which relates to the subject matter of administration.”
[10] At p.563.
It is clear that Parliament has not set out to define what is meant by “administration” and has left it as a flexible word to be applied where the circumstances lead to the conclusion that the conduct in question was administrative action. The four examples which are included in the definition do not in themselves assist in defining what is “administrative action”. It is the performance or refusal of a particular course of conduct which in embraced by the phrase “administrative action”, but the particular acts or failure to act set out in the definition do not in themselves define what is “administrative action”. The examples are features of conduct which is administrative action.
Before referring to the authorities in this State, I propose to consider the issue by applying basic principles. The principal function of the Ombudsman is to enquire into or investigate any administrative action. As already noted, the definition of “administrative action” contained in s.2 does not provide any real guidance as to what is administrative action compared with any other action taken by the bodies referred to in s.13(1). The Act was passed in 1973. Consideration of the authorities to that time and the textbooks reveals that there was no satisfactory definition of what was administrative action. One may infer that Parliament intended that the phrase should be construed in a flexible and wide manner.
What the phrase “administrative action” means is a question of law. However, whether the decision maker is undertaking administrative action is a question of fact. In interpreting a provision in an Act, the Court seeks to determine the intention of Parliament. The primary source of that intention is the words used, construed in their normal and natural meaning, unless the Act or surrounding circumstances dictate otherwise, and after considering the context, reading the Act as a whole and giving effect to the purpose of the provision.
Turning to the dictionary, the word “administrative” is defined in the Shorter Oxford English Dictionary as “pertaining to management; executive”. The same dictionary defines “administer” as “to manage as a steward, to carry on.”
The Australian Concise Oxford Dictionary, 3rd ed, defines “administrative” as “concerning or relating to the management of affairs”.
Based upon those definitions, there is a strong argument that Dr Nisselle, when he determined both the number of Members and the constitution of the Medical Panel pursuant to s.63(4) of the AC Act, was performing an administrative function. He had available to him the list of Members appointed by the Governor in Council, and guided by the AC Act he determined the constitution of a particular Medical Panel. Once that decision was made, the Panel was invested with authority to perform the various statutory tasks. This would appear to be an administrative action. Accepting that Dr Nisselle had powers which he could exercise relating to fixing a date and place for the Medical Panel’s examination of the workers,[11] the arrangement of the business of Panels[12] and the giving of directions as to the procedures of Panels,[13] once those powers were performed his involvement ceased. The Medical Panel then commenced its function. There was a clear line of demarcation between Dr Nisselle’s actions and the functions of the Medical Panel. The fact that it may become necessary to replace a Member of the Panel for some reason does not contradict that proposition. This would result in the creation of a new Panel, which would have to perform its functions afresh.
[11] s.67(2).
[12] s.65(7).
[13] s.65(9).
However, one cannot rely upon the definition of “administrative action” as found in the dictionaries. It is necessary to go back to 1973 to determine what was meant by the phrase “administrative action” in law. Writing in that year, Professor De Smith, in the third edition of his work Judicial Review of Administrative Action, noted[14] in the context of the common law judicial review jurisdiction that it often depended “on whether a given function is classified as judicial or administrative.” The learned author then went on to observe:
“Although the mode of classifying a function is no longer so important, the continuing lack of uniformity in the meanings given to these terms in the judgment of the Court is confusing to the student and makes it difficult for a writer to expound legal principles clearly.”
[14] At p.26.
The learned author devoted Chapter 2 to the classification of functions. In the fifth edition of his work, published in 1995, the learned authors Lord Woolf and Professor Jowell consigned Professor De Smith’s Chapter 2 of the third edition to an appendix at the back of the work. The learned authors noted that for many years the development of English administrative law had been impeded by distinctions made between the various functions: legislative, administrative, judicial, quasi-judicial and ministerial. However, as they observed, the later cases tended to do away with the classifications in relation to judicial review. Nevertheless, the learned authors reproduced an abridged version of what Professor De Smith said in his fourth edition. The learned author had said in that edition:
“Functions of public authorities may be roughly classified as (i) legislative, (ii) administrative (or executive), (iii) judicial (or quasi- judicial) and (iv) ministerial.”
(Emphasis added).
He then went on to consider the various meanings. For present purposes, we can ignore the definition of “ministerial”. He drew a distinction between “administrative” and “legislative”. He said:
“The distinction often made between legislative and administrative acts is that between the general and the particular. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issuing of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy of expediency or administrative practice. Legal consequences flow from this distinction.”
In my view, there is no suggestion that what Dr Nisselle was doing was legislative, and accordingly it is unnecessary to further consider that function. The learned author then went on to consider “quasi-judicial” and “judicial”. The author noted that the first term, “quasi-judicial”, had a number of meanings and described a function that was partly judicial and partly administrative. An example he gave was the making of a compulsory purchase order, which he defined as an administrative act preceded by the holding of a judicial-type local inquiry and a consideration of objections. The author went on to observe that it was an ambiguous term and should be avoided.
Professor De Smith then went on to consider the test for identifying judicial functions. He observed that the more closely a body resembled a court, the more likely it was that the body would be held to be acting in a judicial capacity. Hence, the conclusiveness of the decision-maker, and the trappings of the body and procedure, were two important matters to take into account. He summarised his conclusions as follows:
“Judicial acts may be identified by reference to their formal, procedural or substantive characteristics, or by a combination of any of them. An act may be judicial because it declares and interprets pre-existing rights, or because it changes those rights provided that the power to change them is not unfettered. A duty to act judicially in conformity with natural justice may be inferred from the impact of an administrative act or decision on individual rights.”
Given that an administrative action is not a legislative or judicial action, then it seems to me there is a very strong argument that what Dr Nisselle was doing in determining the Medical Panel was administrative action. What he was doing was not legislative, nor was it judicial in nature. Dr Nisselle did not decide any dispute, or a lis between parties, nor did he hold any hearing or decide between competing interests. He was exercising a statutory power to appoint a Medical Panel from a list of Members provided to him by the Governor in Council. This has all the hallmarks of administrative action.
The first case in which this Court considered the jurisdiction of the Ombudsman was Booth v Dillon (No. 1).[15] In that case, a complaint was made by a prisoner to the Ombudsman of an assault on him by a prison officer in the presence of senior prison officials. The question was whether or not the Ombudsman had jurisdiction to consider the complaint. Lush J, after setting out the relevant provisions of the Act
and summarising the facts, observed as follows:[16]
“The question which I have to decide is one of construction, whether the matter which the Ombudsman proposes to investigate is an administrative action, which, when the definition of administration action is resorted to, becomes whether that matter is an action relating to a matter of administration.”
[15] [1976] VR 291.
[16] At p.294.
After noting that the research of counsel had revealed no assistance from any authority, his Honour observed that the task remained “one of statutory construction”.
Lush J then noted that there must be a source from which it may be possible to determine the subject matter of an investigation. He observed there were two possible sources, namely, the complaint itself and the written notice given by the Ombudsman to others. He noted that the Ombudsman was not limited to the contents of a complaint because he had the power to initiate an investigation himself. His Honour then observed:
“Despite the enormous range of possible inquiry indicated by this analysis, the Ombudsman must be able at any time to justify an
investigation as being within his powers.”[17]
[17] See p.295.
His Honour then posed the following test:
“To determine jurisdiction, accordingly, I must examine the complaint and the definition of administrative action to ascertain whether the
complaint disclosed an administrative action in the department.”[18]
[18] See p.295.
His Honour analysed the complaint of assault and noted that it was implicit in the complaint that, inter alia, the prison officer concerned did not expect any disciplinary action would be taken against him and that the Governor condoned the assault. His Honour accepted that he gained little assistance from literature
provided to the Court and went on to say:[19]
“I think I should not attempt a definition of the phrase ‘relating to a matter of administration’ beyond explaining why I reach my conclusion. The limits of the phrase are necessarily difficult to ascertain and will be worked out in a course of decisions relating to different sets of facts, the variety of which alone will assist the task.”
[19] At p.296.
His Honour then stated:
“In my opinion, this complaint related to a matter of administration. It was argued that it was a complaint of assault by one man on another. But this was not a complaint merely of assault but of facts concerning the enforcement of discipline governing both prisoners and staff and the proper hearing of complaints in the prison. It was not an incident between angry men. It was an incident in which the authority of office was asserted and exercised with some formality and in the course of that assertion and exercise irregularities occurred which were closely bound up with it.”
His Honour observed that if it had been merely a complaint of an assault in breach of the common law and of a regulation, then it would not have involved a matter of administration. But his Honour stated that the presence of the Governor and the Chief Prison Officer at the time of the assault changed the situation. His Honour concluded it was a matter of administration.
I respectfully agree with Lush J that the limits of the phrase “relating to a matter of administration” are difficult to determine and that each case must be determined in relation to the particular circumstances. On the other hand, the cases and texts concerning judicial review and differences between administrative action and other forms of action have drawn a distinction between “administrative action” and legislative and judicial and quasi-judicial acts. As a starting point, a useful guideline is to distinguish between administrative action and legislative and judicial actions. I emphasise it is no more than a guideline and a starting point to consideration of what is a mixed question of Parliamentary intention (law) and the particular facts. It is impossible to lay down a definition which determines a precise line of demarcation between administrative action and other forms of action or inaction by Government Departments and Public Statutory Bodies.
Late in 1975, Dunn J heard another case concerning the Ombudsman’s jurisdiction. It was Booth v Dillon (No. 2).[20] In that case, the Court dealt with two separate complaints. The first related to statements made to the press by a senior prison officer concerning a life sentence prisoner who was attempting to obtain release on parole. The second complaint concerned action taken by the Department of Social Welfare to ensure that prisoners in a certain division of Pentridge were not subject to sexual attack by fellow inmates. His Honour held that both complaints were not within jurisdiction. The statement made by the senior prison officer was unauthorised and not made in the course of his employment. Hence, it was not administrative action. With respect to the sleeping arrangements of prisoners, his Honour held it was a matter of policy and not administrative action. However, any action taken to deal with alleged sexual assaults was a matter of administration.
[20] (1976) VR 434.
Dunn J’s approach to the question was to consider the facts of each complaint. His Honour did not seek to define what was meant by the phrase “administrative action”. The case stands, of course, for two propositions. The first is that what a public servant may have said outside the scope of his employment and contrary to the Constitution Act Amendment Act 1958 and regulations was not a matter which the Ombudsman could deal with, because it was not made in the course of employment and therefore was not administrative action taken by a Government Department. The second proposition is that administrative action does not cover a question of policy, although his Honour did admit that it was a difficult problem because “no clear line of demarcation exists between what is involved in policy and what is involved in administration.”
In the following year, being 1976, this Court considered the question again in three cases.
In Glenister v Dillon, the Court had to consider whether the failure by the Crown Law Department to bring to trial two persons who were in custody awaiting trial within a reasonable time was administrative action which empowered the Ombudsman under s.13(1) of the Act to conduct an investigation. In 1976, it was the Crown Law Department that prepared and filed presentments in criminal cases. The Court held that what the Ombudsman proposed to do in investigating the written complaints about the delay was expressly excluded from his jurisdiction by s.13(3)(b). Section 13(3)(b) of the Act precluded the Ombudsman from investigating any administrative action taken by a person acting as legal adviser to the Crown or as counsel for the Crown in any proceeding. However, two members of the Court considered what was meant by the phrase “administrative action” in s.13(1) of the Act. What their Honours said was obiter dicta.
However, as Mr Uren QC of counsel, who appeared with Mr Quinn for Dr. Nisselle, emphasised, their Honours’ analysis has been followed and has stood the test of time, and no attempt has been made to amend the Act. On the other hand, it must be pointed out that the protection given under s.13(3)(b) would ensure that similar failure to perform the administrative action would preclude the Ombudsman from enquiring into or investigating the conduct.
The Full Court in Glenister v Dillon[21] interpreted the phrase “administrative action” as conduct arising in the course of administration which was not legislative or judicial. As the first step in the consideration of a question of jurisdiction, the approach is unobjectionable, however, the drawing of the line of demarcation may be difficult. It is appropriate at this stage to consider the decision.
[21] Supra.
In 1976, it was the function of the Crown Solicitor to receive the informations and the depositions from the committing Justices, and the Crown Solicitor was required to deliver them to the relevant court. The Crown was the prosecuting authority and the Crown Solicitor acted as the legal practitioner for the Crown to instruct counsel to prosecute. It was accepted that the Crown Solicitor in so acting could have been the cause of a delay bringing an accused person to trial. Two judges, Gillard and Menhennit JJ, considered the question of whether the Crown Solicitor was
performing an administrative action in a Government Department. Gillard J[22]
adopted the distinction drawn by Professor Holdsworth between administrative powers and legislative or judicial powers. The learned author had stated that administrative powers meant powers other than legislative or judicial. Gillard J then went on to consider s.13(1), and for the purposes of determining what was “administrative action”, he put to one side the actions of a Public Statutory Body as being irrelevant to the issues in the proceeding.
[22] At p.556.
His Honour said:[23]
“In my view, the word ‘administration’ in this definition denotes the performance of the executive function of government referred to in such dictum and was never intended to comprehend any activity (or inactivity) in the areas of the performance of the judicial or legislative functions of government. This view finds support from the statement of the principal functions of the Ombudsman to investigate actions in Government Departments as set out above and also the provision of s.16 of the Act.”
[23] At p.558.
His Honour noted the phrase “relating to” in the definition in s.2, and after stating what I have quoted above,[24] said:
“But it should be reiterated that any activity in the areas of the exercise of judicial function or the enactment of legislation by Parliament would be beyond the jurisdiction of the Ombudsman. Such activities would not relate to any ‘matter of administration’, as I have interpreted that expression. This view finds support for the provisions of s.16 which confers jurisdiction on the Ombudsman to investigate Parliamentary complaints ‘other than a matter concerning a judicial proceeding’.”
[24] At para.37.
His Honour concluded:[25]
“Returning then to consideration of the complaint, common to the two men, of a failure to bring them to trial, patently the delay is something that occurred in the area of the judicial process and the complaint made of delay in proceedings is not concerned with any activity (or inactivity) relating to the performance of any executive power or observance of any executive obligation.”
[25] At p.559.
His Honour then noted that the Crown Solicitor could be a cause of delay, for example, by failing to brief counsel or by obtaining a postponement of trials from month to month, but that any such activities were not connected with the executive function of government, and were instead the activities of a legal practitioner acting for a party in litigation.
His Honour then went on to hold that the Ombudsman did not have jurisdiction to investigate the complaints and, further, that by reason of s.13(3)(b), the Ombudsman was not permitted to investigate any administrative action taken by a person acting as legal adviser to the Crown.
Menhennit J was of the same view. His Honour said:[26]
“I am of the opinion that, in the context, ‘administration’ refers to the executive arm of government in contradistinction to the legislative and judicial arms of government.”
[26] At p.564.
His Honour observed that the Ombudsman did not have jurisdiction because the complaints made concerned “matters relating to the judicial arm of government in that they concerned the Crown Solicitor whose activities relate to the judicial arm of government. They do not relate to the administrative or executive arm of government.” His Honour then went on to conclude that s.13(3)(b) also applied.
The third member of the Court, Dunn J, reached the same conclusion as the other Judges but confined his conclusion to the application of s.13(3)(b). Strictly, the ratio decidendi is the decision by the three members of the Court that s.13(3)(b) excluded the jurisdiction of the Ombudsman to investigate the complaints. However, I accept that the views expressed by Gillard and Menhennit JJ are of importance and, as Mr Uren submitted, have stood the test of time. I accept what their Honours said as to the general definition of “administrative action”, namely, as being that which is not legislative or judicial. Their observations were confined to alleged administrative action taken “in any Government Department” and did not deal with the question of administrative action in a Public Statutory Body. But their Honours’ observations apply to a Public Statutory Body. There is no doubt in that case that there was a close connection between the substance of the complaints made, and the activities of the Crown Solicitor in the judicial process. The activities of the Crown Solicitor in facilitating the bringing on of a criminal trial were clearly associated with the judicial process. The Crown Solicitor had an important role to play in the conduct of the judicial process and it was a continuing one. The bringing to trial was the first step of the trial process in which the Crown Solicitor was involved and which would conclude in an acquittal or sentence. His activities were part and parcel of the judicial process. Hence, they were not administrative. What Gillard and Menhennit JJ said in that case provides a guideline as to the definition of “administrative action”, namely, conduct which is neither legislative nor judicial.
In the present proceeding, the Court is dealing with the actions of a person who is empowered pursuant to statute to perform a function which is not a function taken in a Government Department but is action taken in a Public Statutory Body. In my opinion, Glenister v Dillon does not lead to the conclusion that Dr Nisselle’s activities in establishing and directing a Medical Panel are judicial. Dr Nisselle’s activities cease once the Medical Panel commences to perform the task given to it by the AC Act. There is a clear line of demarcation between his activities and the activities of the Medical Panel, which, for present purposes, could be described as quasi-judicial. The mere fact that Dr Nisselle establishes a Medical Panel to perform its task does not, in my opinion, mean that his activities are of a judicial-type function.
In the next case of Glenister v Dillon (No. 2),[27] a complaint was made to the Ombudsman about the Public Solicitor, who was acting for the son of the complainants and who had failed to tell the complainants that their son was to appear for sentence on a particular day. Nelson J noted that the Public Solicitor was a person appointed by the Governor in Council to assist persons who were charged
with criminal offences. His Honour observed:[28]
“In the discharge of any one of its three traditional functions, the government may call in aid some of its powers which derive from the other functions but, in determining whether a particular action or activity is related to a matter of administration, one must first look at the governmental function the particular action or activity is designed to discharge or to which it is so incidental that it forms a part of it.
The representation of accused persons in the courts is clearly ancillary to the discharge of the judicial function of government. In relation to criminal matters, it is for that purpose that the Office of Public Solicitor is established. The government may use its executive power to pay for such representation or to provide facilities for it, just as it is used its legislative power to enact the necessary legislation but that, in my opinion, does not alter the nature of the governmental function which is being discharged. Nor is the nature of that function altered by the fact that the legislation only permits the representation to be provided for persons of a limited class, ie those without adequate means to provide legal assistance for themselves. In so far, therefore, as the actions of the Public Solicitor in the performance of his duties to represent accused persons could be described as executive or administrative they are not, in my opinion, related to a matter of administration but are related to the discharge of the judicial function of government. They therefore fall outside the definition of administrative action in s.2 of the Act and therefore do not fall within the area of investigation in which the Ombudsman has jurisdiction.”
(Emphasis added).
[27] [1977] VR 151.
[28] At p.153.
Nelson J considered the question again in Booth v Dillon (No. 3).[29] In that case, the complaint concerned a prisoner who had been charged before a Governor of the prison with disobeying an order. The prisoner complained that the Governor had refused his request to have the matter heard before a visiting magistrate, refused to allow him to call a witness, and refused to give him an adjournment until the prison officer whom he desired to call as a witness was available. Nelson J stated[30] that he agreed with the views expressed by Gillard and Menhennit JJ in the Full Court decision that there was a distinction to be drawn between acts which may be properly described as falling within the performance of the executive function of government, and those which concerned the performance of legislative and judicial functions. In that case, Nelson J held that the Governor of the prison was performing an administrative act, and accordingly the Ombudsman was entitled to investigate.
His Honour said:[31]
“The Ombudsman Act is clearly designed to invest the Ombudsman with a jurisdiction to investigate the actions of administrative officers and tribunals, subject to the specific exclusions in s.13(3) and, in excluding from such jurisdiction the administrative actions of a court of law, the Act did not, in my opinion, intend to exclude from such jurisdiction the actions of a person or body primarily discharging an executive function but which as an incident of that function had committed to it some judicial powers.”
[29] [1977] VR 143.
[30] At p.144.
[31] At p.150.
This decision shows that it is possible to have administrative acts mixed with judicial functions.
It is apparent from the authorities, and the generality of the definition of “administrative action”, that it is impossible to lay down any exhaustive definition. The failure by Parliament to prescribe what is meant by the phrase “administrative action” leads to the conclusion, amply supported by reference to the authorities and the texts, that Parliament recognised the impossibility of formulating an appropriate and satisfactory definition and, further, did not wish to confine the jurisdiction of the Ombudsman but wished to permit the Ombudsman a degree of flexibility. Indeed, it is clear that Parliament intended that the application of the definition should be left to the particular circumstances. Mr Uren submitted that the authorities established that if the administrative action was closely related to judicial action, then the action was not administrative within the meaning of the Act. He submitted that Dr Nisselle was making a decision preliminary to a form of judicial hearing after the Panel was established. But the decision of Lush J shows that there may be an intermingling of administrative matters with what could be described as a judicial function. In Booth v Dillon (No. 1),[32] Lush J held that a complaint of an assault on a prisoner by a senior prison official, which one may assume could lead to judicial proceedings, also involved questions of administration in that certain senior prison officers and officials were involved. Further, in Booth v Dillon (No. 3),[33] Nelson J held that the actions of a prison Governor in exercising a statutory power to hear and determine a charge against a prisoner fell within the administrative responsibility for due order, management and discipline of a prison. Accordingly, the Ombudsman had jurisdiction as the actions related to a matter of administration even though the prison Governor’s actions were of a quasi-judicial nature. As Lush J emphasised in the first case, it is very apparent that each case will have to be determined in accordance with its circumstances. In Glenister v Dillon,[34] the Full Court was dealing with a complaint concerning activities which were part and parcel of the judicial process.
[32] Supra.
[33] Supra.
[34] Supra.
Mr Uren submitted that the establishment of the Medical Panel, and its discharge of statutory powers leading to a decision, related to judicial matters, namely, the determination of a particular proceeding in the Court. It was submitted that the extensive powers given to the Panels under Division 3 of Part 3 of the AC Act had a significant, and in most cases decisive, effect on the judicial process. In particular, the provisions of s.68(3) of the AC Act showed the close connection between the Panel and the judicial process and, further, as s.68(4) demonstrated, the decision made by the Medical Panel had to be adopted and applied by any Court which referred the medical question to it. I accept that the Medical Panel’s exercise of its statutory powers to reach an opinion on a medical question is closely related and connected to the judicial process.
However, the issue is whether that conclusion results in the appointment of the Panel by the Convenor Dr Nisselle being a judicial act rather than an administrative one?
It was submitted by Mr Robins of counsel for the Ombudsman, that the function performed by Dr Nisselle in appointing the Panel was a separate and distinct function from the performance by the Medical Panel of its functions in considering and determining the issues under the AC Act. Once Dr Nisselle had appointed the Panel, his involvement ceased and this was a separate function to the quasi-judicial function of the Medical Panel. In other words, there was a clear line of demarcation between the actions of Dr Nisselle and those of the Medical Panel. Nothing that Dr Nisselle did had any of the features of the performance of a judicial function. It was put on behalf of Dr Nisselle that what he was doing was not a matter of administration within the meaning of s.2 of the Act. It was submitted that in discharging its functions, the Medical Panel was performing a judicial function and accordingly the appointment of Panel Members also involved a judicial function. It was submitted that what Gillard and Menhennit JJ said in the Glenister case, supra, supported that conclusion.
In addition, Mr Uren referred to and relied upon what Gleeson CJ said in Fingleton v The Queen,[35] where his Honour said:
“Within any Court, the assignment of a judicial officer to a particular case, or a particular kind of business, or a particular locality, is the matter intimately related to the independent and impartial administration of justice. This was the basis of the decision of the New South Wales Court of Appeal in Rhaski v Wood where it was held that the nomination or allocation of a judge to hear a particular case was not justiciable. As was pointed out in Minister for Immigration and Multicultural Affairs v Wang, where it is the function of a head of jurisdiction to assign members of the Court to hear particular cases, the capacity to exercise that function, free from interference by, and scrutiny of, the other branches of government is an essential aspect of judicial independence. The same may be said of the capacity to exercise that function free from the threat of civil or criminal sanctions.”
[35] (2005) 79 ALJR 1250 at paragraph 52.
It was submitted that the same principles applied to a statutory office holder, such as Dr Nisselle, when exercising the functions of establishing the body which was to perform the judicial task, namely, the Medical Panel.
I do not accept that what Gleeson CJ said applies to the actions of Dr Nisselle when he appoints a Medical Panel. What his Honour said was in the context of a section of the Queensland Magistrates’ Act dealing with the functions of the Chief Magistrate. Prior to the quoted words above, Gleeson CJ referred to the section which covered a range of matters relevant to the orderly and expeditious exercise of the jurisdiction of the Magistrates’ Courts. As his Honour pointed out, the allocation of magistrates was not merely a matter of internal administration, but affected litigants and the public. His Honour then stated the words quoted above. Taken in context, the words do not provide an answer to the question in this proceeding as to whether Dr Nisselle’s exercise of his statutory power to appoint a Medical Panel was administrative action or a judicial function.
The many cases that have discussed differences between administrative, ministerial and judicial functions do not provide a ready answer to the issue in this proceeding. Indeed, the authorities relating to the common law prerogative writ jurisdiction of this Court and whether a writ of certiorari should issue, show that sometimes a person who is a judicial officer and has performed functions which are closely associated with the judicial function, is performing ministerial functions. For example, an order committing a person for trial at a committal by Justices was held not to be a judicial act but a ministerial act. See Cox v Millidge.[36] Further, the taking of the recognisance of bail where bail has already been allowed is not a judicial act within the meaning of the Judiciary Act 1903, s.68(3).[37] In Donohoe v Chew Ying,[38] the High Court held that the issue of a summons upon an information for an offence punishable on summary conviction was a matter of procedure, and that a Justice of the Peace in issuing such a summons was not exercising a judicial function.
[36] (1893) 19 VLR 527 at 539.
[37] See R v Thom Sing (1911) 13 CLR 32.
[38] (1913) 16 CLR 364.
I respectfully agree with Lush J that the early authorities do not provide much guidance in considering the question of whether or not the Ombudsman has jurisdiction. It is impossible to lay down a satisfactory definition of “administrative action”. The authorities do provide a guideline, namely, that “administrative action” is conduct other than the performance of a legislative or judicial function. However, this is merely a starting point and does not provide the solution. It is well recognised that often it is very difficult to draw the distinction between administrative functions on the one hand, and legislative or judicial functions on the other. See Hamblin v Duffy,[39] where Lockhart J observed that it was difficult to define the expressions legislative, judicial, ministerial or administrative decisions. His Honour pointed out that the difficulty is “compounded by the fact that a particular
category of decision tends to overlap or emerge into another.”[40]
[39] (1981) 34 ALR 333.
[40] See at p.338.
As Lush J noted in Booth v Dillon (No. 1),[41] the starting point must be the subject matter to be investigated. The answer in the present proceeding is the conduct of Dr Nisselle in appointing a Medical Panel. Having determined the subject matter of the complaint, the question is, did that conduct relate “to a matter of administration”? The fact that the conduct may occur in circumstances where a judicial function is being performed by another does not mean that the conduct is not administrative action. In seeking to determine the answer, it is appropriate to draw a distinction between judicial conduct on the one hand, and administrative conduct on the other. As the cases heard in 1975 and 1976 demonstrate, administrative action can occur although it is closely related to some judicial function. That observation is supported by reference to S.13(3)(a). Parliament recognised and contemplated that judicial officers would perform administrative action. It is clear that once the Medical Panel was established and commenced to exercise its statutory powers, it performed an important function in the judicial process and its activities were judicial. However, in my opinion, the performance by Dr Nisselle of his statutory duty to appoint the particular Medical Panel was a separate and discrete function, and was not judicial, but administrative in nature. The complaints concern that conduct. Dr. Nisselle’s conduct in appointing a Medical Panel, as disclosed by the evidence, and when considered in the context of his statutory powers and taking into account the authorities in this Court, leads to the conclusion that he was exercising an administrative function at the relevant time. That is, action relating to a matter of administration. The matter of administration was the appointment of the Medical Panel. The fact that once the Panel was established and commenced to perform its functions, it was involved in a quasi- judicial function, does not alter the nature of what Dr. Nisselle did. His conduct concerned administrative action and not judicial action. In my opinion, the Ombudsman had jurisdiction under s.13(1) of the Act to investigate the action taken by Dr Nisselle when he appointed a Medical Panel.
[41] Supra at p.295.
However, having reached that conclusion, that is not the end of this proceeding. Although an Ombudsman may have jurisdiction under s.13(1), he may be precluded from enquiring into or investigating the administrative action by reason of s.13(3). It is the contention of Dr Nisselle that the Ombudsman is precluded by s.13(3)(a).
Ombudsman’s Lack of Authority under s.13(3)(a)
I have set out s.13(3)(a) above.
Literally, the subsection does not apply because Dr Nisselle is not a court of law, a Judge or a magistrate. However, Dr Nisselle prayed in aid s.65(10) of the AC Act. This subsection was inserted in 1996. I have set it out above.
It was argued on behalf of Dr Nisselle that his action in appointing the Panel entitled him to the same protection and immunity that a Judge of the Supreme Court has in the performance of his duties as a Judge, and accordingly that s.13(3)(a) prevented the Ombudsman from enquiring into or investigating his administrative action in appointing the Panel. It was submitted that for the purposes of s.13(3)(a), Dr Nisselle was a Judge because by reason of s.65(10) of the AC Act, he was entitled to the same protection and immunity as a Judge.
The first question for consideration and determination is, what is the nature of the protection and immunity that a Judge has in the performance of his duties as a Judge? In answering that question, it is necessary to refer to s.63(6) of the AC Act. It was enacted at the same time as s.65(10). It provides –
“(6)
A matter or thing done or omitted to be done by a Member of a Medical Panel or the Convenor of the Medical Panels in the exercise of the functions and powers of a Member of a Medical Panel or the Convenor does not, if the matter or thing was done or omitted in good faith, subject the Member of a Medical Panel or the Convenor of the Medical Panels personally to any action, liability claim or demand.”
It follows that the conduct, whether it be misfeasance or non-feasance, does not make the Convenor of the Medical Panel personally liable if the conduct was in good faith. But this would not cover negligence. Hence the need for further protection and immunity provided by S.65(10).
In Singleton v The Queen,[42] Gleeson CJ discussed the common law with respect to judicial immunity. His Honour said:
[42] Supra at p.1259.
“Most discussion of judicial immunity concerns the possibility of civil liability, including liability for damages, at the suit of an aggrieved litigant. The general principle is as stated by Lord Denning MR in Sirros v Moore [1975] QB 118 at 132:
‘Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.’
An allegation of judicial conduct by a dissatisfied litigant often, perhaps even typically, will be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority. In In Re McC (a minor), Lord Bridge of Harwich said:
‘It is, of course, clear that the holder of any judicial office who acts in bad faith doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say:
“That is a perverse verdict”, and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But, as Lord Esher MR said in Anderson v Gorrie;”
‘The question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie.’
This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is a right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O’Connor J speaking for the Supreme Court of the United States, said in Forrester v White, that Court on a number of occasions has ‘emphasised that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have’. She said that ‘if judges were personally liable for erroneous decisions, the resulting avalanche of suits … would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits’.”
His Honour, having observed that Judges were not unaccountable because their work was in public and that a Judge could be removed for misconduct upon the address of Parliament, went on to observe that the same considerations lay behind immunity from criminal responsibility. His Honour pointed out that at common law, judicial officers enjoy no immunity or protection from criminal responsibility for their extra-judicial conduct.
In my opinion, s.65(10) provides that protection and immunity to Dr Nisselle when he performs his statutory functions as the Convenor of Medical Panels. He is not liable to a suit for damages for anything he does or does not do in performing his duty as the Convenor.
In the course of argument, the question arose as to whether Dr Nisselle or the Medical Panel could be subjected to judicial review pursuant to the Administrative Law Act or the common law jurisdiction of this Court. It has been accepted in a number of cases that the Medical Panel’s conduct is subject to review. The answer to that query was stated by Mr Uren, namely, that a Supreme Court Judge is not subject to that common law jurisdiction or the jurisdiction under the Administrative Law Act, and accordingly, it is not a question of the common law providing some protection or immunity from suit. That observation underlines the purpose of s.65(10), which is to protect the Convenor from any civil liability arising out of the performance of his functions.
It therefore follows that Dr Nisselle does have the same protection and immunity that a Judge of this Court has in the performance of his or her duties as a Judge.
But the question remains, does that protection and immunity given to Dr Nisselle as the Convenor preclude the Ombudsman under s.13(3)(a) from enquiring into the administrative action?
Mr Robins, on behalf of the Ombudsman, submitted that s.65(10) of the AC Act should be interpreted to cover common law judicial immunity from suit and protection from legal claims, but that it does not extend to any protection accorded a Judge by statute. However, it is well recognised that a Judge or magistrate may be accorded statutory protection. Indeed, in Fingleton v The Queen, that was held to be the situation in Queensland. Further, Section 14 of the Magistrates’ Court Act 1989 gives protection and immunity to a magistrate. In my opinion, there is no warrant for reading down s.65(10) to mean the level of protection accorded at common law. In my opinion, any protection that is given to a Judge of the Supreme Court, whether it be at common law or by statute, is the protection and immunity to be accorded to the Convenor of the Medical Panels. As the administrative action of a Judge cannot be investigated or enquired into, it must follow that the Convenor’s administrative action cannot be enquired into or investigated. The statutory protection of immunity given to a Judge of this Court protects the Convenor.
In my opinion, s.13(3)(a) precludes the Ombudsman from enquiring into or investigating the administrative action of Dr Nisselle as the Convenor of the Medical Panels because he enjoys the same immunity as a Judge or a magistrate, and since it is not open to investigate the administrative action taken by a Judge, it follows that Dr Nisselle enjoys the same protection by reason of s.65(10) of the of the AC Act.
In my opinion, the Ombudsman is precluded from enquiring into or investigating the complaints made concerning the appointment of the Medical Panels by Dr Nisselle.
Conclusion
The Ombudsman had jurisdiction under s.13(1) of the Ombudsman Act 1973 to enquire into or investigate the actions taken by Dr Nisselle in appointing a Medical Panel because the conduct was administrative action within the meaning of that Act. However, by reason of s.13(3)(a), the Ombudsman was not authorised to enquire into or investigate the administrative action because Dr Nisselle enjoyed the same protection and immunity as a Judge of the Supreme Court by reason of s.65(10) of the AC Act. Section 13(3)(a) is a statutory protection given to a Judge and Dr Nisselle is entitled to the same protection.
Before I state the proposed order, I wish to make a few observations concerning the practice and procedure followed by Dr Nisselle as Convenor of the Medical Panels. When summarising the complaints, I made observations concerning his approach to the appointment of a Medical Panel. I appreciate that when appointing a Panel there may be constraints because of finances and the availability of suitable persons, but I do draw attention to the important principle that justice must not only be done but be seen to be done. The outcome of a Medical Panel’s function will invariably result in a party to a dispute failing. It is important that a losing party to any dispute goes away from the proceeding satisfied that he or she has had a fair hearing. In my opinion, thought and consideration must be given to the establishment of guidelines with respect to procedures under s.65 of the AC Act. Section 63A enables the Convenor to constitute a Medical Panel to provide a report in any matter referred to the Convenor by the Minister. I think it would be wise and prudent to lay down guidelines and, if necessary, provide the necessary resources and facilities to ensure that there is no suggestion of perceived bias or conflict of interest.
Subject to submissions by counsel, I propose to make the following order under s.27 of the Ombudsman Act 1973:
Declare that the Ombudsman is precluded from enquiring into or investigating the action taken by the Convenor Dr Nisselle to determine the membership of and the establishment of a Medical Panel by reason of s.13(3)(a) of the Ombudsman Act 1973 and s.65(10) of the Accident Compensation Act 1985.
I will hear the parties on the question of costs.
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