Walton v Gardiner; Walton v Herron; Walton v Gill

[1992] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S52 of 1992

a e t w e e n -

MERRILYN MARGARET WALTON

Appellant

and

IAN DONALD RUSSELL GARDINER

Respondent

Office of the Registry

Sydney No S53 of 1992

Bet w e e n -

MERRILYN MAR	GARET WALTON
and	Appellant
JOHN TENN	ANT HERRON

Respondent

Office of the Registry

Sydney No S54 of 1992

Between-

MERRILYN MARGARET WALTON

Appellant

and

JOHN EWAN MACDONALD GILL

Respondent

Walton(2) 1 22/9/92

MASON CJ
BRENNAN J
DEANE J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 SEPTEMBER 1992, AT 10.18 AM

Copyright in the High Court of Australia

MR T,K, TOBIN. OC:  May it please the Court, in each of

these matters, I appear with MR M.G, SEXTON for the

appellant. (instructed by the Crown Solicitor for

New South Wales)

MR M.H. TOBIAS, OC:  If the Court pleases, in each matter I

appear with MR M.I. BOZIC for each of the

respondents. (instructed by Blake Dawson Waldron

for first and second respondent and by Tress Cocks

& Maddox for the third respondent)

MASON CJ: Yes, Mr Tobin.

MR TOBIN:  I am informed by my learned friend that he does

not propose to pursue the notice of contention,

Your Honours. I hand up the outline of argument.

In addition to the outline of argument which I have

handed up, there is a schedule of cases, part of

which was used in the special leave application.

It is an attempt to canvass fairly thoroughly the

body of rulings that have been made basically in

Australia and the United Kingdom on questions

touching the issue before the Court. I do not

propose to take the Court necessarily to the

content of the judgment, but the schedule, we would

submit, may assist the Court.

Juridically this case poses something of a

puzzle because, as Your Honours will observe, in

1968 the three doctors were respondents in

proceedings before the Court of Appeal in New South

Wales with regard to complaints made concerning

their professional conduct as doctors. In the case

of McGregor_ v Herron which is a Court of Appeal

Walton(2) 2 22/9/92

decision in which Mr Justice McHugh wrote the

against the doctor should' be stayed, as we	leading judgment, it was held that the proceedings
understand the judgment, on the ground of presumptive prejudice caused by excessive delay.
Special leave was denied.

The Court took the view that in 1986 it was

presumptively unfair for the doctors to go before

the medical tribunal and explain their conduct with regard to a number of matters which are set out and

which are the old or previous complaints referring
to their treatment of patients at a private
hospital in Sydney called Chelmsford.

Since then there has been a Royal Commission, between 1988 and 1990, in the State of New South

Wales, and the judgments of the Court of Appeal in the present proceedings advert to the fact that

there was in that Royal Commission a very thorough

examination of documentary material, patients and

technical medical material concerning what happened

at Chelmsford Private Hospital during the 1970s. Following the Royal Commission, immediately

afterwards, the appellant laid further complaints
before the medical tribunal with regard to the
conduct of the doctors as disclosed before the

Royal Commission. Not, Your Honours, as, frankly, one must say, that there was not an insight on the

part of the Department of Health for years before

that about certain activities at Chelmsford Private

Hospital. The Health Department did not go into the Royal Commission, nor emerge from it, with a

satisfactory explanation of the delays that had

occurred, and that is a matter which was not
contested before the Court of Appeal when these

present proceedings were dealt with there.

However, before the Court of Appeal, whilst

accepting th& findings of the court with regard to

the delay and the responsibility for the delay in

the handa of the Health Department, it was not

conced&d, and the parties accepted, that the

doctrines or principles as expounded in the Court

of Appeal in Herron v McGregor had to be qualified

by dint of this Court's decision in Jago v The

District Court of New South Wales.

So the Court of Appeal, on this last occasion,

came to the problem and resolved it as follows: on

the factuaL issue the court was satisfied that the

doctors had not established that there could not be
a fair hearing. The basis of the Court of Appeal

decision was, after that debate took place before

it, that a fair hearing was possible, especially by

dint of what had happened before the Royal

Walton(2) 22/9/92

Commission, and confident that the tribunal, presided over by a member of the district court, a judicial member of the tribunal, could shape the

procedure in a way to ensure fairness and, if there

was any falling away from that task, that the

supervisory jurisdiction of the Court of Appeal was

available instanter on any ruling of law for

immediate appeal.

Now the basis then of the Court of Appeal

decision as to the turn of events factually

accommodated the Royal Commission and came to the

contrary conclusion to that in McGregor v Herron.

When I say a contrary conclusion I mean this; that as one reads McGregor v Herron, although the

inference may be available that an unfair hearing

was a possibility, Their Honours did not make the right to a speedy trial, and they did rely on the judgment in those terms, they did rely upon the

presumption of prejudice which was a matter
disposed of by this Court in Jago's case.

Now the second element in the puzzle, Your Honours, is that notwithstanding that we submit

decisive change that had taken place in the

forensic environment which the doctors faced, a

change which would accord them a fair trial, the

Court decided that on this occasion, too, it should

stay the proceedings and the appellant at the

outset challenges the foundation material upon

which the Court built in reaching that decision and

the foundation material was debated below as a form

of double jeopardy. It was put below that in

substance the doctors were being confronted with

th& same charge or complaint. That very much

affected, as Your Honours will see, the way the

Court of Appeal analysed the question of oppression

or unfairness, and we would submit at the outset

that Their Honours were in error in coming to the

view that these two complaints, if I can use that

term compendiously because there were many of them

in each batch, but the old complaints and the new

complaints were substantially the same.

If I could begin by going to the

Medical Practitioner's Act because that forms the

statutory background which defines, although not

exhaustibly, circumstances in which professional

misconduct may be found against a doctor and it is

charges of professional misconduct which were laid

against the doctors both in 1985 and again in 1991. Your Honours, the Medical Practitioners Act

1938 of New South Wales governs in large measure

the registration and rights of practice, as

registered medical practitioners, of members of

that profession in New South Wales, and it has an

Walton(2) 22/9/92

elaborate structure of supervision of the doctors
and of hearing complaints against doctors with

regard to their professional conduct and other

matters. Section 27 of the Act, which is on

page 31 of the latest print that I have, sets out

in subsection (1) to define professional misconduct

in relation to a registered medical practitioner

and it includes, in 27(l)(a):

any conduct that demonstrates a lack of

adequate:

(i) knowledge;

(ii) experience;

(iii) skill;

(v) care,	(iv) judgment; or
by the practitioner in the practice of
medicine.

And passing over a range of other matters which, as Your Honours will see, could include in (c) convictions under the Health Insurance Act; in (f), the countenancing of the performance of tasks that

are reserved to medical practitioners, and finally,

in the last two lines of that subsection concludes

with the words:

or any other improper or unethical conduct

relating to the practice of medicine.

Now, Your Honours, this definition is illusive in

some ways because of the phrasing of those last

words, but it will be clear from 27(l)(a) that

there is an issue involved of adequate knowledge,

skill, judgment or care which goes to describe what

might be medical misconduct and, more generally,

any other improper or unethical conduct relating to

the practice of medicine.

Your Honours, when a complaint is laid the

medical tribunal is not limited to those matters of

professional misconduct. As Your Honours will see

from section 28(1):

A complaint may be made that a registered
medical practitioner:

(a) has been convicted in New South Wales of
an offence;
(b) has been convicted elsewhere than in New

South Wales -

of what would constitute an offence if done in New

South Wales -

Walton(2) 5 22/9/92

(c) had been habitually drunk or addicted to

any deleterious drug;

(d) has been guilty of professional

misconduct;

(e) does not have sufficient physical and

mental capacity to practise medicine; or

(d) is not of good character.

So, in addition to those matters touching on

professional misconduct, there are other matters

including good character which are involved in the

jurisdiction of the medical tribunal.

And, finally, Your Honours, in an effort to

divine the correct policies and purposes of the

legislation and of complaints thereunder,

section 32R, which is on page 51 of the print that

I have, sets out the findings that the tribunal may

make if the complaint is proved. And,

Your Honours, these involve a range of remedies

from a -

caution or reprimand -

to an -

order that the person complete such
educational courses as are specified by the

Tribunal -

to bring him or her, as it were, up to appropriate
standard, the taking of advice, and in (g) the

tribunal may:

suspend the person from practising ••••. or

(ii) direct that the person's name be removed

from the Register -

. .

and in (h) -

by its order impose a fine on the person of an

amount, not exceeding $25,000, specified in

the order.

If I may pause just for a moment on that

subsection, later it will appear from the judgments

that both Mr Justice Gleeson and the President of

the Court of Appeal, Mr Justice Kirby, who were the
majority judgment, took the view that there was an

element of the punitive, or of punishment, and they

considered the question of the appropriateness of

this with regard to the present proceedings. I

point out simply that the very power to fine up to

$25,000 is limited to cases of professional

misconduct. That appears in subsection (7), which

is at the top of page 153 in my print.

Subsection (7) says that:

Walton(2) 6 22/9/92

(7) The Tribunal may impose a fine on a person

only if it finds the person to have been

guilty of professional misconduct (other than

conduct in respect of which a fine or other

penalty has already been imposed on a court).

So there is no danger in the legislation of a

double penalty but importantly, for our argument,

one must accommodate the fact that for professional

misconduct, clearly conduct that can arise in the

day-to-day clinical management of patients or the

like, there is power to fine and therefore, on the

face of the legislation, there is clearly a

punitive element.

There is another purpose in the legislation

which Mr Justice Gleeson referred to as the

vindication of the victims. I jump ahead a little

because the problems that came to light after the

Royal Commission suggested that many hundreds of

people were given a standard regime of heavy
barbiturate doses at Chelmsford Private Hospital,
purportedly for therapeutic purposes. The Royal

Commission found - and this was a matter put before

the Court of Appeal - that it had no therapeutic

value on its examination of the material and the

doses were of such enormous amounts as to be

dangerously high. In some cases it would appear

that they proved to be lethal.

Given that background, it is important, we

would submit, to take account of what

Mr Justice Gleeson said of the relevant weight to be given to what he called the vindication of the

victims and that this was, as he analysed it,

appropriate to be tied to the punitive powers that

existed with the medical tribunal. In other words,

there waa a sense in which a tribunal might

· properly mark its view of the conduct of the

doctors by the imposition of a fine, having in mind

the vindication of the victima of the treatment.

I put this to Your Honours in the context that

the complainant, the appellant before Your Honours,

is not pursuing a case based upon such a purpose,

but only to say, as His Honour the Chief Justice of

New South Wales recorded, that it is not a wrong

purpose in the sense that Your Honours canvassed in

Williama v Spautz, in disciplinary proceedings

where the protective dimension is uppermost, to
also have an element of the punitive or the

vindicative - I hesitate the use the word

"vindictive" because it carries an additional sting

that I would want to avoid, but the notion of the

vindication of the victims.

Walton(2) 22/9/92

As we say in one of our grounds of appeal, it

is also appropriate - and the court did not
consider this - to look at the public confidence in
the regulation of the medical profession by the

medical tribunal, even though it may not be on the agenda or in contemplation by the medical tribunal

to decide, because of unfitness during the 1970s,
that the doctors should no longer practise.

What I am wishing to put to Your Honours is this, that when one comes to the purposes of the

legislation and we are statute-strapped, as it

were, we are backed by the statute in this
submission, it may well be that the tribunal would

be entitled for protective - or even reasons of

punishment, although we do not embrace that - would

be entitled to hear these matters because of the

elements of vindication of the victims as well as

the public interest in the due regulation of the

medical profession.

But that perhaps is a side alley because it is

an attempt to deal with the reasoning of the

President of the Court of Appeal who, as I said,

was in the majority with the Chief Justice. He

seemed to attach a lot of significance to the

notion of punishment as an improper approach to the

exercise of jurisdiction in the medical tribunal,	and that is a view that the Chief Justice did not
embrace, however he did say that there was, he
thought, an element of punishment involved in what
was happening. We simply say that that fact, that
inference, does not count against the appellant as
constituting oppression in the sense which I will presently come to.

Your Honours, the appeal must go to a

comparison between the new and the old complaints

because it did form such an important part of the

reasoning of the court. It attracted the court, we

would submit, in error, into the territory of

double jeopardy but it did not go very deep into
the forest.	In other words, it obviously acted on

the minds of Mr Justice Gleeson and

Mr Justice Kirby that they saw a close parallel

between these two sets of complaints and they were

obviously expressing a concern of the type that

might arise in a double jeopardy case.

Mr Justice Kirby called it a species of double jeopardy, which is a very important element in his judgment. Obviously, if it is a species of double jeopardy, the door must swing fairly wide in favour

of the doctors. Mr Justice Gleeson did not come to

such a solid view. He called it a form of double

jeopardy but he said that it did not come into any

of the recognized particulars of that principle.

Walton(2) 8 22/9/92

Now, obviously, Your Honours, a comparison

between the two sets of complaints is rather like a
comparison between two indictments or two sets of

charges that may have attracted a plea of autrefois

acquit or autrefois convict. Before I embark upon

an analysis though of those complaints, may I also

put this to Your Honours as to the overall

consequences of the decision to stay or not to

stay.

The Crown, acting as prosecutor, may put

someone before a magistrate for committal and if

the result is satisfactory to the defendant, in the

light of further evidence, it may again go to the

magistrate or it may simply issue an ex officio

indictment subject to the principles in Barton's

case.

So, here we have a situation, not an exact

parallel, in the field of the regulation of the

medical profession where, on our case, the very

volume of material that came to light as a result

of the Royal Commission transformed the situation

as between the complainant, the appellant here, and

the doctors and it provided, not as Their Honours

appraised it, the filling in detail .of a canvas

that was already available, but in our submission

it provided a quite decisive break in the material

that was available to us, or to the complainant.

And, Your Honour, just before parting with

that subject, we submit that on the most

unfavourable construction to our case of the

principles of fairness and the like to be applied,

such as was discussed in Jago's case, it is always

a dimension as to what was the state of knowledge

in fact of the prosecutor or the complainant at the

relevant time. That knowledge may transform a

situation from something that might be an abuse of

process to something which is not an abuse of

process. In other words, if the person has the

knowledge and,. in some way, improperly sits on it,

of process for an improper use of the procedures of	then that may count against the person for an abuse
the court against the legitimate interests of the
defendant.

BRENNAN J: Mr Tobin, I am having difficulty in

understanding the statutory and, perhaps, common

law basis on which this matter falla for

consideration. Was the court engaged in judicial

review of the decision to complain?

MR TOBIN:  It was invited to make a declaration in the

summons that the proceedings had, in fact, been

determined by McGregor v Herron, that is, what

might be called the res judicata point and,

Walton(2) 9 22/9/92

additionally, that the continuance of the

proceedings would constitute a form of abuse of

process, general unfairness to the doctors.

BRENNAN J: There is no time limit prescribed by the

statute?

MR TOBIN:  No, Your Honour.

BRENNAN J: Is there a statutory duty to hear?

MR TOBIN: There is, Your Honour.

BRENNAN J: What jurisdiction was the court purporting to

exercise in sterilizing the statutory duty to hear?

MR TOBIN:  Your Honour, it was approached on the basis that

the decision which it had made in 1986, in fact,

precluded the complainant from proceeding with the

complaints. That is, it was approached on the

ground that, having decided that there should not

be a hearing in 1986, that prevented the tribunal

from exercising its statutory powers.

BRENNAN J: What was the legal rule that has that effect?

MR TOBIN: Well, Your Honour, the court has invoked under

the Supreme Court Act a supervisory power with

regard to the administration of justice and it has

done that regularly in the last 10 years, and it

has based its power upon the section of the Supreme

Court Act that empowers it to do what is proper for

the administration of justice in New South Wales,

and it has taken the view consistently that

this kind are subject to its supervisory	inferior tribunals and quasi-judicial tribunals of
jurisdiction under the Supreme Court Act.

BRENNAN J: So this is an exercise of a jurisdiction unique

to New South Wales?

MR TOBIN, I would not believe so, Your Honour. I noted in

I have not looked at the question of the actual

some of the cases previously dealt with in other but

statutes, I have not looked at that question.

BRENNAN J: Over statutory tribunals?

MR TOBIN: Yes, I have not looked at the question of the

statutory basis of it.

BRENNAN J: As distinct from it - I confess that for myself

at the moment I do not understand what the

jurisdiction is or whether there is any.

Walton(2) 10 22/9/92

MR TOBIN:  Your Honours, Herron v McGregor discusses the

jurisdictional point and it is not the first, it is

one of a number of cases where the supreme court

has used the relevant section with a view to

exercising such supervision.

MASON CJ: But in relation to statutory tribunals?

MR TOBIN:  Yes. It is exercised at - - -

MASON CJ: I am aware of Herron v McGregor but there are

other such cases.

MR TOBIN: Yes, I will try to turn that up, Your Honour,

because the court has not been troubled, as it

were, by the view it has of its power in this

field.

BRENNAN J: That is understandable, that is the very problem

that gives rise to it. If you do not know what you

are doing it is very hard to formulate the rules

which govern you doing it.

MR TOBIN: Yes. The court says what we are doing is

ensuring, within the common law principles or
appropriate statues if there be any that play on
it, that those who appear before the courts and

before those bodies which exercise some form of

quasi-judicial and function to ensure relevant fairness.

Your Honours, the passage in Herron v McGregor

is at 250B and following. Your Honours, I think,

have the volumes.

MASON CJ: Yes, we have it.

MR TOBIN: His Honour there says:

The jurisdiction of this Court extends to the

supervision and protection of proceedings in

inferior courts and tribunals: John Fairfax & Sons Pty Ltd v McRae.

BRENNAN J: There the court was referring to punishment for

contempt of mandamus and certiorari as parts of a

general supervisory function.

MR TOBIN: Yes.

BRENNAN J: Now, the supervisory function has always been

exercised by prerogative writ and maybe they have

expanded in their scope, but as I understand the

reference, it suggests that no longer is there a

limitation to the remedies of prerogative writs,

but there is now subsumed, within this general

Walton(2) 11 22/9/92

be right and call it supervisory. jurisdiction, a power to do whatever is thought to

MR TOBIN:  The way we understand the court exercising its

jurisdiction is that it must bring to bear, within

a very limited scope, the sort of principles that
for example were agitated in Jago's case.

The complaint that the appellant has with regard to the court's decision is that once you

accept the finding that there is no unfairness at

trial, that there is no improper or mala fide

conduct by the prosecution, when those two

threshold matters are accepted and when the

doctrine of either res judicata or of double	jeopardy in its various forms is not attracted, we
would submit that the court does not have a
discretion as to what it does. That is, simply, it
may exercise a stay if the conduct of the prosecution is mala fide in the classic senses of delay, for example, designed to damage the capacity
of the defendant to defend him or herself and, of
course, if there is an abuse of process of the
court.

DAWSON J: An abuse of process of the court or of the

process of the tribunal?

MR TOBIN:  It is an abuse of the process of the tribunal in

this case.

DAWSON J: Yes.

MR TOBIN:  An abuse of process of the tribunal again, we

would submit, strictly limited. That is, an abuse
inadvertent conduct however reprehensible, which it was found in Jago's case to be.

of process not including what, I think in

Your Honours, the appellant here says that in exercising its jurisdiction the Court of Appeal

exceeded its power - - -

DAWSON J: Can W$ come back to that in a minute? Would the

court have been able to achieve the same result by

the use of the prerogative writs in this case?

MR TOBIN: At the outset I must say this, Your Honour:

there was no hearing before the medical tribunal.

That is, this matter was heard at first instance by

the Court of Appeal and the medical tribunal was

not moved by the doctors to raise the question of

whether it, itself, was precluded from hearing the

matter by dint of Herron v McGregor or by dint of

any doctrine of actual prejudice causing an unfair

trial through delay. So, there was no proceeding

Walton(2) 12 22/9/92

before the medical tribunal itself. In fact, the

medical tribunal had not been fully constituted.

At that stage, as the matter stood at the end of

the Court of Appeal proceedings, there was no judge

appointed as deputy chairperson.

DAWSON J: Technical difficulties aside, would prohibition

lie in these circumstances?

MR TOBIN:  Your Honour, prohibition would be appropriate if

it were established that the res judicata point had
been made out; that is, if the tribunal was

proceeding to hear a matter which had been disposed of by a superior court exercising its jurisdiction.

One of the prerogative writs would be an

appropriate remedy to prevent that happening. It

is not available, as I would understand it,

Your Honour, simply on the grounds that an unfair

·hearing would result; that is, without the hearing

taking place, with simply the complaint before the

court, the prerogative writ would be an appropriate

could not be a remedy without a hearing with regard remedy with regard to the res judicata point, but

to the question of the unfairness of the trial as

contemplated by the doctors in their case. It is

into that vacuum that the court exercises the

Your Honours. supervisory jurisdiction which I have outlined to

BRENNAN J:  Mr Tobin, for my part, I appreciate that you

wish to present your argument on the basis that you

have already outlined, but I would find it

extremely difficult to assess that argument and to

come to any conclusion unless I had some

appreciation of the nature of the jurisdiction

which the court was purporting to exercise.

MR TOBIN:. Your Honour, I will turn up the Supreme Court

Act, and I think there is a discussion in the

notations to the relevant section of the manner in

which the court has exercised this supervisory

jurisdiction in the last decade approximately. At

252 of Herron v McGregor, Your Honours will see

just below B, he says:

Moreover, in the case of this Court the matter seems settled by the terms of the

Supreme Court Act 1970~ s 23, which provides

that the "Court shall have all jurisdiction

which may be necessary for the administration

of justice in new South Wales".

Then he refers to Riley McKay v McKay:

this Court saws 23 as one of two bases for

the "new" remedy of the Mareva injunction.

The jurisdiction conferred bys 23 is in my

Walton(2) 13 22/9/92

opinion wide enough to enable this Court to

make orders protecting inferior courts and

tribunals against any abuse of their

processes.

He refers to a judgment of Mr Justice Mahoney. The

case of McKay v McKay, as I recollect, was decided

by the Chief Justice and Mr Justice Rogers and a

third judge of appeal. It will be clear from its

deployment in the context of the introduction of

that section was seen as a catch-all for a	the Mareva injunction into New South Wales that
jurisdiction to intervene if the court thought it
South Wales". "necessary for the administration of justice in New

The section itself, of course, is very wide,

and it does not say that the intervention, that the

court has a power to intervene in all things that

it may, as it were, quixotically regard as

as to what is necessary for the administration of

necessary for the administration of justice.

jurisdiction which is limited to those matters not	justice, and it is, in effect, an exercise of
useful for or appropriate to be used in the
administration of justice, but necessary for its
administration.
I take it, Your Honours, that the court has been of the view that these cases, for example, of
abuse of process or of delay, create a situation where the protection of the defendant or the
accused of necessity touches the administration of
justice. For our part, we do not cavil with the
assertion of jurisdiction by the court but we say,
in our appeal, that the court has gone beyond the
supervisory jurisdiction which it has and it
exercised, outside the three points which I have put to Your Honours concerning the mala fides of
prosecution, the double jeopardy point and so on,
outside those knock-outs, as it were, where a fair
trial is not possible or an abuse of process is
such that only a stay can protect - - -

DAWSON J: What do you mean by the administration of

justice, that the court can intervene whenever it

sees an injustice?

MR TOBIN:  No, Your Honour.

DAWSON J: Well, what does it mean?

MR TOBIN:  I take it that it means those institutions which

dispense justice in New South Wales.

Walton(2) 14 22/9/92

DAWSON J: But there are many institutions of that sort -

domestic tribunals, for instance.

MR TOBIN: Well, Your Honour, here we are limited to the

medical tribunal which is a quasi-judicial body and
has powers to fine, to remove from the register,

and to do various other things; is presided over by

with regard to the proceedings before him. At	a judge of the court who must make rulings of law
least that would fall, we would submit, within the framework of the administration of justice.

DAWSON J: What about a racing tribunal, for instance?

MR TOBIN: It may, Your Honour. Depending on its

constitution, it may. The presence of a judicial

member of the body who is appointed ex officio,

that is for the purpose of presiding as the judge

at the hearings, would point in that direction.	In
other words - I have not been before the racing
tribunal - I do not think the AJC, which sits as a
committee of - - -

DAWSON J: I was searching for the criterion. You said the

criterion is whether a judge, or one of the

criteria is whether the judge - - -

MR TOBIN: In this case, Your Honour. Your Honour, let me

put it this way: our case is that there has been
an excess of jurisdiction here and the excess comes

from not only the failure on the three points that

we have outlined, but if I may pick up on what Mr

Justice Brennan has asked me, the limitations that

will be imposed by the Supreme Court Act itself as

to what is necessary for the administration of

limited, we submit, by the presence of common law	justice, that is to say that the jurisdiction is
principles such as Your Honours have dealt with in
Jago and more recently in Spauta, and it is limited
by the notions of supervision to the extent that it
is necessary for the administration of justice.
What we have complained of with regard to the decision in this case is that the medical tribunal,
as Mr Justice Mahoney said in his dissenting
judgment, presided over by a district court judge, has a panoply of powers available to it under the
statute to inform itself as it sees fit, in the
words of the statute, and to give the- necessary
protection to the doctors appearing before it and,
in turn, Mr Justice Mahoney said, its exercise of
those powers is subject to review by Court of
Appeal under the statute. That is, under the
Medical Practitioners Act, a right of appeal to the
supreme court on any ruling of law, for example, is
available as I said earlier, instanter. So there

Walton(2) 15 22/9/92

is no need to wait for the outcome of the

proceedings.

BRENNAN J:  Mr Tobin, I appreciate the way in which you are

putting your argument. I understand that you do

not wish to put an argument that the jurisdiction
of the court is limited to that which might be
exercised under a prerogative writ but goes more

broadly.

MR TOBIN: Yes.

BRENNAN J:  I ~ould just like to make it clear that for my

part I would wish to consider the basis of the

jurisdiction and that counsel for their part should

understand that if they wish to address any

argument on the question of the jurisdiction as

being exercised, then of course they are at liberty

to do so. But I would wish for myself to reserve
the question of whether there is any, and if so,

what that jurisdiction is.

MR TOBIN: Yes. Your Honour, this matter was not put to the

Court of Appeal, although where there is a

jurisdictional issue of this kind it may be

appropriate for us on instructions to seek leave to

amend our grounds of appeal to raise the

jurisdictional issue.

MASON CJ:  There is not much point in doing that until you

actually work out what argument you want to

present.

MR TOBIN: Yes, of course, yes.

TOOHEY J: Furthermore, Mr Tobin, it may be that the

questions raised with you by Justice Brennan go a

little further than matter& of jurisdiction. For

· instance, they may bear on the question of double

jeopardy, because the double jeopardy, as I read

the judgments of the Court of Appeal, seem to

spring not from the existence of the proceedings,

the earlier proceedings before the tribunal, but

from the orders made by the Court of Appeal in the

first instance.

MR TOBIN: Yes.

TOOHEY J:  It is those orders which, as I read the

judgments, are said to give rise to the possibility

of double jeopardy. The jurisdiction to make those
orders might well touch on the existence or

otherwise of some principle of double jeopardy.

MR TOBIN: Your Honours, perhaps I should make this clear:

the medical tribunal is not a criminal court; its

purposes, as outlined earlier, relate to protection

Walton(2) 16 22/9/92

of the public. They relate in part to punishment.

They relate to the proper regulation internally of

the members of the medical profession and there is,

we would submit, quite apart from the technical

problem of showing double jeopardy in this case, a

real sense in which the protective jurisdiction

must override the principles that may be

appropriate on double jeopardy in a court of

criminal law.

To put it another way, if what is involved is

the question of the fitness of the doctors to

practise in New South Wales, and if there is a

hearing on the merits, and there has never been

one, and it is disposed of in their favour, and if

later, with or without any reprehensible inactivity

by the complainant bringing the matter forward or

investigating the matter, there are other facts

which come to light, touching on the question of

fitness, the proper parallel is that which I raised

earlier of what happens at a committal hearing

when, after a successful outcome for the defendant,

there may be an ex officio indictment or a further

committal in the light of further evidence.

Now, it would be our contention. that double

jeopardy is not present in this case, but is not an appropriate tool in which to deal with the question of the fitness of the doctors. To put it another

way, if the public are to be protected from medical

practitioners who are not fit to practise, if that

be the proposition, then even if there has been a

hearing on the merits in which they were

successful, the question of the protective

jurisdiction being exercised by the medical

tribunal would count, in our submission, very

heavily agains~ the-notion that further evidence

that might clearly signal that the doctor should

,not practise, could not be led because one would be

met by a double jeopardy argument, or by a res

judicata argument, and the problem that the Court

of Appea1 fell into, if I may say with respect, is

this is not a double jeopardy case on its face.

Technically it does not fall within the rules of

double jeopardy. There ia a principle in the

background that seemed to agitate the majority of

the court that there was an unfairness and the

unfairness involved another hearing of similar

subject-matter.

That, of course, is not double jeopardy, but

it owes something to the concepts that underline

the policy of double jeopardy rules. But here, we

would submit, they have no part to play if the

jurisdiction be truly protective, if the purposes

be truly protective. That is not to say what might

be the result if the question of fining a doctor

Walton(2) 17 22/9/92

were invoked, which is the double jeopardy side

attaching to penalty. Leaving that aside, the

double jeopardy attaching to guilt or innocence is

not, we would submit, appropriately answered in
these proceedings, proceedings that would go before

the medical tribunal, by reference to the criminal

law.

Your Honours, there is a factual matter which

is potentially tedious but is important in the
appeal, and it is this: if one compares the

lengthy complaints that were laid in 1985 with the

present complaints, we submit that there is no
basis for saying that they are substantially the

same. May I put it this way: in 1985, the way in

which the complainant constructed his case against

the doctors was to identify the treatment of four patients, three of whom died, and the attack made

on the doctors related to the administration by the
doctors of medical services for those patients.

In the most startling case, that of a Miss Podio, who was seriously ill as a result of

the barbiturate intake, three of the doctors were

charged, or complaints were laid against three of

the doctors with regard to the manner in which they

carried out her treatment. She was a patient of

the late Dr Bailey, so their involvement was at a
tangent, as it were, they were assisting, they were

not the treating doctor.

In the case of one doctor, Dr Gardiner, it was

alleged that his administration of electric shock

treatment to Miss Podio, who was, it was said,

clearly in extremis, constituted medical

professional misconduct with regard to the manner

in which he carried out his medical treatment.	It
did not involve deep sleep therapy. It happened
that Miss Podio had been subjected to deep sleep

therapy, but against Dr Gardiner it was said, "You

administered electric shock treatment to a person

who was in extremis, as it happened because of DST

treatment, and you should not have done that".

With regard to Dr Gill, it was put that he had

administered Epsom salts to the same patient in the

same period when she was in extremis, and that he

should not have done it, knowing her condition,

because he was treating her.

And with regard to Dr Herron, it is set out at

140 and following, the gravamen of the complaint

was that he administered electric shock treatment

to Miss Podio when she was in extremis and that

that constituted gross negligence and unconcern for

her welfare.

Walton(2) 18 22/9/92

Now, it was no part of the complainant's case

to make out the professional misconduct to

establish whether deep sleep therapy was an

appropriate or an inappropriate therapy. It did

not matter, regardless of all the particulars and

items of allegation, that the doctors ought to have

known of the dangers to the patient because the
doctors knew or should have known of the number of
deaths of other patients who had been undergoing
deep sleep therapy, that is to say, the appellant
accepts readily that the treatment that each of
these patients was receiving was deep sleep
therapy, but it was the treatment, not
administering deep sleep therapy in the case of

Miss Podio, but of doing other things, electric shock treatment, the administration of Epsom salts,

which formed the basis of the complaint.

It was said that was gross negligence

amounting to professional misconduct "that you so

treated this patient" who, as readily undergoing

deep sleep therapy, may have been suffering from a

drug overdose; that is, the therapy, as it were,

which brought her to her condition of extremis was

not the gravamen of the complaint. The complaint

was what the doctors did with the patient in that

condition, not by bringing further forward the deep sleep therapy treatment, but what they did with her

while she was undergoing it.

I should say to Your Honours that the

administration of shock therapy to patients

undergoing deep sleep therapy was part of what was

called the therapy; that is, it did. form part of

the system. that was used for purportedly

therapeutic purposes. But the administration of

ECT stand& apart from.deep sleep therapy. It is a

common medical practice. A doctor who administered

shock therapy to a patient in extremis from a road

vehicle accident or from serious injuries from an

attempted suicide might have to face the same

question aa to whether that treatment amounted to

professional misconduct.

The same pattern of complaint appears in the

case of Mrs Francis. The old complaint is at 156
of the appeal books in the case of Dr Herron,
volume 1. The format of the complaints for the

three deceased patients very closely follows this.

It begins at 156 line 15, the assertion that

Dr Herron in this matter had been guilty of

misconduct in a professional respect, which is to

pick up the language of the statute. Then it sets

out a number of particulars, the head particular

being that, in paragraph 1 at line 16:

Walton(2) 19 22/9/92

The said misconduct arises out of the

treatment which he caused or permitted to be

undertaken in respect of his patient,

AUDREY FLORENCE FRANCIS at the Chelmsford

Private Hospital between 12th March, 1976 and

14th March, 1976 when Ms Francis died in that

such treatment displayed:

(a) Gross negligence;

(b) An indifference or lack of concern for the

welfare of Ms Francis1

and as such amounted to misconduct in a

professional respect.

The gravamen of the complaint is then set out in

paragraph 1. What follows is a number of
particulars of the actual treatment that she was

subjected to. It includes reference to deep sleep

therapy. Paragraph 5 on page 157 at the bottom

states:

that Ms Francis was to undergo:

(a) deep sedation therapy/continuous narcosis;

(b) electro convulsive therapy (ECT).

Such an instruction to the staff of the

hospital was inappropriate and amounted to

gross negligence in that:

(i) deep sedation therapy involved a risk of

death or serious injury (see hereunder) -

and then for matters that were pertaining directly to the condition of Ms Francis and her appropriate treatment.

DAWSON J: Are you not suggesting that these complaints were

laid upon the basis, or upon an assumption, that

de·ep sleep therapy was a legitimate treatment.

MR TOBIN:. Yes.

DAWSON J: The particular one:

deep sedation therapy involved a risk of death

or serious injury -

does not seem to bear that out.

MASON CJ:	On page 158, line 6.
MR TOBIN:	No, Your Honour.

Walton(2) 20 22/9/92

DAWSON J: Although it may - - -

MR TOBIN:  No.

With respect, there would be many medical procedures that satisfied those conditions that

they "involved a risk of death or serious injury",

I mean, many advanced heart operations, for example. One could think of a great range of

therapies that were very much high risk therapies.

I mean, a heart transplant or an organ transplant must be a classic instance of - - -

DAWSON J: Well, you say that paragraph must be read in

relation to a particular condition and a particular

case.

MR TOBIN: Yes.

MASON CJ:	But what about paragraph 8 on page 163?
MR TOBIN:	This matter, Your Honour, goes to an attempt to establish the gross negligence by· dint of his
assumed knowledge of the dangers of the therapy,
and the list of patients, 12 or so in number, are
all Dr Bailey's patients, and Dr Bailey being dead was, it was said in Herron v McGregor, unavailable
to provide any information with regard to the question of Dr Herron's knowledge of the fate of those patients.

This paragraph 8 is repeated, Your Honour,

with regard to every one of the deceased patients,

the three that formed the original complaint. The

paragraph, as we would submit it should be read, is

concerned to establish the requisite degree of

knowledge, what in criminal law might be called

mens rea but here would be called an alertness to

the dangers of death of the therapy, but at no time

during the casting of these complaints and the

matter being canvassed in Herron v McGregor was it

available to the complainant to say that without

knowledge of the dangerous effects - perhaps if I

that Dr Herron must have had knowledge of these	rephrase it - that what we are now able to say is
because he performed deep sleep therapy on the 100
patients set out in the schedule. At this time the
complainant is relying upon an assumption that he must have- known by dint of the fact that he worked
in the hospital with Dr Bailey and a dozen or so of
Dr Bailey's patients had died - - -

BRENNAN J:  The gist of the complaints is that they did not

do something else when they should have done

something else by reason of the fact that the

patient was undergoing deep sleep therapy?

MR TOBIN:  Yes. Now the complaint is that, of itself, it is

professional misconduct to perform deep sleep

Walton(2) 21 22/9/92

therapy and that that was the situation during the

1970s when Dr Herron and Dr Gill and Dr Gardiner

were performing it. The case that is now made

specifically avoids the need to look at the

co~sequence to any particular patient of deep sleep

therapy. The case now is a case based upon, we

would submit, objective scientific criteria; they being, if you have a standard drug regime and, in

the vast majority of patients, 1100 in number involving Dr Herron, you subject them to the same

doses of highly toxic barbiturates, and you do it over a number of days, and it is established that

this is therapeutically useless and, if the defence

raises it, that it was not practised by a reputable

minority of the profession, then the complaints are
made out.

The complainant has eschewed any reliance upon

the outcomes of the therapy, that is the proving

the dangers of the therapy by looking at the

outcomes with particular patients because, the

scientific evidence as deposed to in Mr Wallach's

affidavit would seem to establish that the

administration of such extremely high doses as a

standard routine for every patient, be he 20 stone

or she eight stone, of whatever age, of whatever

heart condition, creates an entirely new

perspective. The perspective being that whatever

the reprehensible delay and whatever the failure to

investigate in a timely way in the 1970s, in a way

that may have prevented this, whatever one says

about that, in the 1970s the doctors involved were

administering routinely without discrimination, to

the large bulk of patients at the hospital, this

particular routine of drugs.

It ia on that point that we say that the Court

of Appeal, in coming to the view it did, has erred

with the very foundation of the case, that is, the very foundation of the case which can now be heard

fairly is based upon the difference between the two

puzzle that I referred to at the beginning as	lots of complaints. If I may put it this way: the
between how one deals with a stay in 1986 and how
one deals with the acceptance by the court that a
fair hearing for the doctors is possible now, is to take account of the Royal Conunission assuredly, but
it is also, we submit, to take account of the fact that the complaints themselves are different. That step is one that the court did not take, but it
doe& resolve the puzzle.

Let me put it this ways Mr Justice McHugh did

not turn his attention in his judgment in Herron v

McGregor to the question of actual prejudice

although I notice in a later case he referred back

to Herron v McGregor as involving actual prejudice.

Walton(2) 22 22/9/92

On its face it is within the pre-Jago line of cases that it in fact fathered. That does not mean

that there may not have been prejudice, and that may not mean that the Royal Commission could not wipe away the prejudice which is, on the evidence

that was accepted by Their Honours below, clearly

the case, that the disadvantages were to some

extent, minimized sufficiently to permit a fair

hearing. But, at the end of the day, we submit,

Your Honours, that the real difference between the events as they were in '86 and the events now, and

the possibility of fairness arises because the

complaints have been framed in the light of the new
information gained from the Royal Commission in a

way that will not unfairly prejudice the trial, and

it is that step that we submit the court below

ought to have taken because, when one compares the

that there are paragraphs in the particulars that

two sets of charges, it is quite clear as

raise questions about deep sleep therapy and raise

questions about the knowledge of the doctors of
deep sleep therapy but none of that, we would

submit, disposes of the differences between the two

sets of complaints.

The present framing of the complaints can be seen at the beginning of volume I, the first

annexure on page 77. It is not necessary for me

to deal with the matters on the second page of the

complaint which is not in contention before the

Court, that is on page 78, but on page 77 the

professional misconduct alleged either in the form

of:

lack of adequate knowledge, experience, skill,

judgment and/or care -

or, some,

improper or unethical conduct -

relate• simply to the administration of the deep

sleep therapy by:

a standard regime of sedative drugs - a therapy which involved significant risks, was

unjustifiably dangerous and had no medical worth.

DEANE J:	Mr Tobin, is what you say that the Department of Health did not appreciate that deep sleep therapy
was useless at the time it brought the proceedings,
because otherwise if it knew it was useless and
elected to bring different proceedings, it all
becomes a rather pointless exercise, does it not?

Walton(2) 23 22/9/92

MR TOBIN:  Your Honour, it was a contentious issue in

1985 - - -

DEANE J: Is that so?

MR TOBIN:  - - - as to the nature of the therapy.

DEANE J: Or as to whether - because I do not read

Justice McHugh's judgment as saying that at all.

Indeed, he makes a point that Dr Herron has

abandoned reliance on it which, to my mind, implies

that it was understood then that the therapy was

useless and dangerous.

MR TOBIN:	Your Honour, perhaps I should make this clearer: from the department's point of view it said it was
an inappropriate therapy.
DEANE J:	But it did not say it was useless at that time?
MR TOBIN:	It did not say it was useless.
DEANE J:	I see.
MR TOBIN:	But, Your Honour, it had no faith in it and it

was - I would not wish to give the Court the

impression that the department regarded this

therapy, in 1985, as other than wrong and something

which should never be administered and it had

proposed amendments to the legislation to outlaw

it. I think His Honour may have referred to that

in his judgment.

DEANE J: Yes.

MR TOBIN:  Now, that is one aspect that is clear. There is

a second aspect. There was knowledge of the use of

standardized treatment sheets. They appear in

parts of the appeal book.

DEANE Ji Well, that was paragraph 7 of what you referred us

to, exhibit 11.

MR TOBINt Yes, there was knowledge that standardized

treatment sheets were used. In the case of

Dr Herron, on Mr Wallach's affidavit, there were

only four patients involved, in the case of three

of whom it could be said that Dr Herron had used

these standardized treatment sheets as well as the
treatment sheet that he used with the patient,

Mrs Francis, who died. So that is four

standardized treatment sheets.

In the review that the Attorney-General sent to the Department of Health - again it is annexed

to the affidavit - in two cases it is clear that

Walton(2) 24 22/9/92

Dr Herron is said to be using these standard

treatment sheets but the report, which is made by

the Attorney-General's people, is not clear-cut as

to the extent to which Dr Herron did use standard

treatment sheets.

I must beg to repeat it, Your Honours, because

I want it to be clear. They did know he used

standard treatment sheets. They knew it in the
case of three or four patients, by 1985. They

referred to it as a particular of complaint in the

matter of Mrs Francis. That was within their

knowledge. The material that came to the

department from the Attorney-General's Department

was not so clear-cut in its condemnation of

Dr Herron for, if I can use the words, "the quite

promiscuous use of a standard treatment sheet with

every patient that came in".

DEANE J: You are going to a great deal of detail but all I

am asking you is this: there are two possible

scenarios. One is that, after a 64-day trial which

had looked into Dr Herron's practices, all the

other information about deaths and so on, the

department had adequate information about the

dangers and uselessness of deep sleep therapy, of

other things, have put it on inquiry, and it

elected to frame certain charges. The other

scenario is that the depai:tment saw nothing wrong

with deep sleep therapy but was bringing charges

because it thought there was something wrong with

Dr Herron's conduct in relation to particular

patients, not because he administered deep sleep

therapy but because of what he did to them in the

state in which they then were.

MR TOBIN: Yes.

DEAN& J: Now, if it is the second, I can fully understand

your point that there is the world of difference

between the first charges and the second; but if it

is the first, where the department with either full

knowledge or been put on inquiry as to what had

happened, simply selects what it sees as the worst

cases, then your argument is not quite as strong.

Now, is it the first or the second scenario, or can

you not tell us?

MR TOBIN:  It is a stronger version of the first scenario.

DEANE J: A stronger version?

MR TOBIN:  Let me put it this way.

DEANE J: You mean I am putting a stronger version.

Walton(2) 25 22/9/92

MR TOBIN:  No, I would like to put it perhaps more strongly

previously had not been available:

to Your Honour. As a result of the Royal what

practically all of the records of treatments of

patients under deep sleep therapy. It provides, if

one accepts the premise that the treatment is

highly dangerous and useless, what I would submit

is an overwhelming case against those who employ

that therapy. The difficulty that the complainant

had in the mid-1980s, in 1985, was that to raise
the question then, without the mass of identified

patients that have since become available of the

appropriateness or otherwise of deep sleep therapy,

would create very severe difficulties of proof.

I say it for this reason: that the doctors

said then, as they say now, that there was a view

within the medical profession, the psychiatric

specialists, who would support it. They still

advance that case. The difficulty with taking on a

doctor, if I can put it that way, with regard to a

treatment which he himself puts in controversy as

to whether it is that of a reputable minority or

not, creates extreme difficulties before a

professional medical body, because provided the

doctor can marshal the people to say, "Well, in

certain circumstances this could be an appropriate

therapy", one is left with three or four patients

upon whom to base a case not only of a dangerous

therapy, but of a completely ineffectual therapy.

Your Honour will appreciate from the

affidavits filed on behalf of the doctors that

there is a complaint that a fair hearing is not

possible in the context of not being able to prove

the efficacy of the treatment or belief in the

.efficacy of the treatment. We would submit,

Your Honour, that without the body of information

provided-by the Royal Commission as to the hundred

patients in the case of Dr Herron, whatever the

department thought - and it thought enough to draft

legislation to ban deep sleep therapy - it was not

a simple choice between eschewing a case against

them on deep sleep therapy on the one hand, or

pursuing one against the doctor for particular

terms of treatment of the patient on the other.

The difficulty was much more substantial

because, in invoking Dr Sargant from the United

Kingdom who, it was accepted, was a man respected

in the United Kingdom who practised a form of deep

sleep therapy, the way we put it in framing the

complaints on this occasion points to the problem

that Your Honour Mr Justice Brennan puts to me.	On
this occasion it is not the case of the

complainant, as the doctors would wish, that there

Walton(2) 26 22/9/92

is some platonic deep sleep therapy against which

all this must be judged •. That was the case that

the doctors were prepared to make apparently in

1985. It was not available to the department to

deal with that issue in 1985 with any confidence of

success.

In other words, if, as they say, Dr Sargant

may have come from the United Kingdom to support

the therapy, although the department itself and the

Royal Australian/New Zealand College of

Psychiatrists had condemned the therapy, it did not establish that the doctors' defence would thereby

be circumvented.

Your Honours, there is clearly throughout the

1985 complaints an awareness of deep sleep therapy,

its dangers and some aspects of its application.

What is different is that the complaints now do not

depend upon the individual assessment of particular

patients, both as to initiation of the procedures

and to outcomes. It would be, we would submit, a

most unhappy result if, by framing the complaints

in a manner which would enable the doctors to have

a fair hearing, that is, by limiting the complaints

to the statistics of treatment over the years, it

would be most unfortunate if, by so limiting the

case as to give the doctors the opportunity of a

fair hearing, it was then said that because it

dealt with a subject that could have been raised in

Appeal and that in the appeal books, a clear

1985 the doctor should have a permanent stay of of

proceedings, because what happened in 1985,

case against Dr Bailey involving perhaps 30

particular patients, and clear cases aa to his

conduct.

They also involved in the context of coronial

hearings and a referral for manslaughter, in the

case of Miss Podio, particular patients of whom it

could be said the actual treatment, irrespective of

deep sleep therapy, constituted professional

misconduct, and the knowledge the Department had in

1985 waa not appropriate for contesting deep sleep

therapy at that time, and it is only in light of
the Royal Commission that that course is now

available~

Your Honours, with regard to two of the

doctors, Dr Gill and Dr Gardiner, the information

available in 1985 did not include their treatment

of patients other than those I have identified,

Miss Podio, for both of them and Mr Adams for

Dr Gill. That is to say, what is now available

with regard to Dr Gardiner, is information not then

available, that he performed deep sleep therapy

Walton(2) 27 22/9/92

himself on six occasions and that he administered

shock treatment to deep sleep therapy patients,

numbering some 100. Again, with regard to Dr Gill,

his role as asserted against him of some sort of

medical manager of the hospital was not material

canvassed previously, that is prior to the Royal

Commission.

Now, in the case of those two doctors, there

is, we would submit, an almost complete dearth of

information other than that which came out as a

result of the Podio inquest and the Adams inquest.

With regard to them, the present complaints,

involving 100 patients, are only possible to

contest in the light of the Royal Commission's

activities.

DEANE J:  Mr Tobin, while you are dealing with this, can I

of the Chief Justice, and I would direct you to take you to page 768 of volume III in the judgment

line 8 on that page beginning "Nevertheless", down

to line 24. To confine it to Dr Herron, do you say that what His Honour says there is factually wrong?

MR TOBIN:  I do, Your Honour. It says that:

the earlier complaints ••••• allege that the

form of medical treatment - - -

DEANE J: That raises two questions, does it not? That

seems to be, to a large extent, the basis of

His Honour's judgment. If you say it is factually

wrong, the query arises, "Is it factually wrong in

terms of a clear demonstration of factual mistakes,

or is it factually wrong because of an overall

conclusion from evidence that you would wish to

attack?- '

MR TOBIN:  No, Your Honour, it only involves a comparison of

the earlier and later complaints with, in mind,

what is required to be proved with regard to the

complaint.

DEANE J: For example, what His Honour says there seems to

me-to be pretty well in accord with paragraph 7 of

the earlier complaint you referred us to. My

second query was: unless it is demonstrably wrong

in terms of mistake of fact, why should this Court

go beyond it? Was the Court told in the
application for leave that you wanted to dispute

particular factual findings in the judgments of the

Court of Appeal?

MR TOBIN:  It was framed in the notice of appeal in these

terms, in 2(b) of the grounds, that:

Walton(2) 28 22/9/92

The Court of Appeal was in error in finding

that the complaints gave rise to a form of

double jeopardy in circumstances where the

misconduct alleged related to the treatment of

different patients on different occasions from

the alleged misconduct which was the subject

of the first complaint and the first stay.

DEANE J:  We go a long way beyond that when you are

effectively asking the Court to go beyond the

factual findings, and then to distinguish on

grounds of fact between the respondents. I mean,

it is assuming the air of, you are asking this

Court to engage in a complete reconsideration of

all the facts.

MR TOBIN:  Your Honour, the judgment itself, we would

submit, is not a discretionary judgment. By that I

mean this, and if I may pick up the debate that

occurred earlier this morning. It is our
contention that there was not a discretion to deny

relief if the court found that the doctors could

not get a fair hearing. We would submit that there

is no discretion, other than to allow the

proceedings to continue if they can get a fair

hearing and there is no mala £ides et cetera. So,

we would submit that the Court is entitled to go to

the factual issue, but if one adopts the view that

this is a discretionary judgment, that there is a

jurisdiction beyond the confines put earlier, we

would say that before the discretion can be

exercised the basis has to be established, the

foundation of fact has to be established, that what

was proposed to be done in 1985 is now proposed to

be done in 1991; that is, to put it differently,

that the complaint or charge or indictment, as it

were, when looked at, shows that what was charged

in 1985 is being charged again in 1991.

Again, Your Honour, even were the Court to

reject that submission there is still the

protective jurisdiction of the medical tribunal to

consider, that is whether, even if they were

similar in the way that Mr Justice Gleeson says, it

is appropriate to employ a form of double jeopardy

concept in order to stay the proceedings. I hope,

in retreating before Your Honour's question, I
cover the possibilities that they would seem, in

our submission, to be the available options in the court below, and that Your Honours are entitled to look at the question in the manner of the autre

fois acquit arguments, what was required to be

proved then and what is required to be proved now,

and in those cases we would submit, Your Honour,

that now what ia required to be proved is

different.

Walton(2) 29 22/9/92

I cannot cavil with the very clear statements

by Their Honours below which point to the factual

matrix by which these complaints arise. I mean,

the Department of Health cannot hide behind the

fact that it has had on the agenda, as it were, the

deep sleep therapy issue for more than a decade and

there will always be common issues in dealing with

what happened in 1985 and what happens in 1991,

because it arose out of the treatment of patients

with this particular type of medication. But, at

the end of the day, Your Honours, if they are

different in substance then the double jeopardy

issue does not arise - as a threshold question it

does not arise. If they are not different, we

would assert that the nature of the medical

tribunal does not preclude it from conducting a

hearing, that is, the protective aspect of the case

is such that even were it so this matter should go

to a hearing.

BRENNAN J:  Mr Tobin, who can lay a complaint? Only the

department?

MR TOBIN:  No, Your Honour, a member of the public may do

so, and there is a screening process whereby it may

be referred to the medical board or the secretary

of the department, but a member of the public can

lay a complaint.

BRENNAN J: Well, I appreciate that you are appearing, as it

were, for the department, but this is not inter

partes litigation, it is legislation for the
protection of the public. Now, what you have said

so far seems to me to indicate, if it indicates

anything, that the department fell down on its job

to protect the public; nobody else has protected
the public; and thua far years have p~ssed, apart

from the Royal Commission, without any public

protection. Now, why does one focus upon previous

situations concerning the public? Are we not

concerned, if there is an abuse of process, in

being used in some way inappropriately in respect	discovering whether or not the proceedings are
of the public's protection?

MR TOBIN:  Your Honour, this charge has never been made

against the department, with regard to these

complaints, that is, it has· never been put that the

department was acting mala fide or, in that sense,

improperly, in bringing the complaints. In fact,

as one reads the judgments below, there was a
lively concern with what I think Mr Jus~ice Mahoney
may have called "public outrage" following the

Royal Commission, and it is the very fact of the quite massive publicity that is referred to in some

of the doctors' affidavits that creates the public

Walton(2) 30 22/9/92

interest in having the medical tribunal dispose of

the matter.

If I could put it this way, Your Honour: the

Royal Commission, as an executive function of

government, came to certain conclusions, but at the

end of the day the question of the vindication of

the victims has loomed very large in the

consideration of Their Honours below and, for that

matter, in the department, it may be inferred.

There has never been a suggestion, Your Honour,

that the department has been mala fide or acted

reprehensibly since the stay in 1985-86, since the

1985 complaints were stayed, and Mr Justice Mahoney

criticism being extended against the department acknowledges that in his judgment, that there is no

now.

BRENNAN J: But what I wonder is, why that is even relevant.

If the jurisdiction is as broad as you say it is

under section 23 of the Supreme Court Act, and if

this is a disciplinary tribunal which is provided

for in protection of the public interest, I should

have thought that there were only two factors which

are relevant: one is the degree of oppression or

difficulty which is faced by the doctors at this

stage in answering a charge, on the one hand; and

the public interest on the other, including the

vindication of patients.

MR TOBIN:	Your Honour, we do not accept that the jurisdiction of the court or of the tribunal can
extend that far.  In other words, we do not accept,
Your Honour, that it is a proper function of the
Court of Appeal to weigh up just those two elements. We would submit. that unless the
necessity of administration of justice is involved
in real terms, not just in housekeeping terms, but
as a realistic protection of the system of justice
extending to this tribunal, that ther& is a very
limited range of. matters that the court is entitled
to take into account.  We have accepted that the
court would be entitled to stay the proceedings if
it thought that they would be unfair.
We do not accept, either as a matter of fact or of principle, that there is any room for a
double jeopardy argument. Again, the complainant
says that in the light of all that has happened,
where there is a great deal, it may be assumed from the nature of the Royal Commission, of public
concern as to the outcome of the proceedings, that
is the exercise by my client of the statutory powers to bring complaints before the medical tribunal, there is a concern in the public that
that power be exercised.

Walton(2) 31 22/9/92

This is not a matter, Your Honours, which we

would say can be simply weighed up between

prejudice to the doctors on the one hand, and

public interest in having the medical tribunal deal

with it on the other. We take, as the grounds of

appeal I hope identify, a much more limited view as

to the scope of the jurisdiction. As I have

debated it with Your Honours this morning, it would
seem appropriate to say that provided the doctors

can get a fair hearing and in the absence of any

attack upon the good faith of the department, there

is no power to stay the proceedings, because the

protective nature of the medical tribunal would

require, in the light of these new facts, an

adjudication.

So, Your Honour, although accepting for the

purpose of argument that the court has exercised a

power under section 23 of the Act to intervene, it

is not an intervention, we would submit, that is

anything like the scope of power that Your Honour

has put to me. Your Honours, if it be the case

that section 23 is a rock, that is that the

appellant is in the position if it concedes the

scope of power under section 23 is limited in the

way in which I have put to Your Honour, namely to

the question of a fair hearing, if it be the view

that the power goes beyond that, we would wish to

have the opportunity to put that in issue before

the Court and say as a ground of appeal in the

alternative that the Court of Appeal acted without
jurisdiction with regard to the permanent stay, and
second, to the extent to which section 23 founded

jurisdiction of the court, it is limited to what is

necessary for the administration of justice which

in this case is limited to the fairness of the

hearing that the medical tribunal could give the

doctors.

MASON CJ: What argument are you going to present in support

of the no jurisdiction point?

MR TOBINt Well, Your Honour, that under the Medical

Pract1t1oners Act there is set up a body which is

not judicial. It is accepted that it is quasi

judicial. If I may take up what Mr Justice Dawson

put to me, the terms of section 23 of the Supreme

Court Act would, on their face, be limited to the

courts of justice, that is, those bodies which

administer justice in the sense in which it would

be used in the Supreme Court Act. It is not meant

to be a bestowal of power in the terms of that

section, beyond the administration by the courts of

justice within the State of New South Wales.

That would be the argument on that basis which

is simply the statute itself: the Supreme Court Act

Walton(2) 32 22/9/92

on the one hand, and the definition of the medical

tribunal as a mixed body of professional, lay and

judicial, which is not a court and is not a

judicial body; and the statutory duty imposed by

the Medical Pract1t1oners Act to hear complaints,

that is, the medical tribunal when it has

complaints before it must be constituted and must

hear the complaints. They are the bases,

Your Honour.

With regard to the second aspect, I take it

that I have put it in argument before

Mr Justice Brennan, that we would say that to the

extent to which section 23 applies, it applies

narrowly within its own terms, and if it is to be

applied to a quasi judicial tribunal of this kind,
it would be limited to the question of the fair
hearing.

I would ask Your Honours' leave, if I can

formulate those grounds, to have leave to amend the
notice of appeal so that they may be before the

Court. I do not propose to add to the argument which I have put, so Your Honours wili - - -

MASON CJ:  We cannot rule on that without hearing Mr Tobias,

and it will be convenient to hear him after you

have completed your argument.

MR TOBIN: Yes. Your Honours, if I may go to an issue that

is raised indirectly by what Mr Justice Brennan put

to me as to the available balancing act between the

public interest and prejudice to the doctors, we

would submit that this is not an abuse of process

case, that is, that there is no evidence put before

the court below, there is nothing in the judgment

below to suggest.that this proceeding has been

c;:arried out for an improper purpose .. If I may

refer Your Honours just by nominating the pages in

the appeal book in volume III which has the

to the "punitiv& rather than protective" aspect. judgment, Mr Justice Gleeson at page 780 referred

At the top of page 780, about line 4, he said:

It is difficult to avoid the conclusion that

the character of the new proceedings is

punitive rather than protective. That does
not of itself mean that they should not have

been brought. Patients are alleged to have

suffered grievously at the hands of the

claimants. Relatives and friends have a

natural desire for vindication. The

Department of Health has a duty to the public

to act in cases of serious malpractice that come to its notice. The public interest in pursuit of disciplinary proceedings in cases

Walton(2) 33 22/9/92

of malpractice is heightened when a

Royal Commission has made adverse findings as

in this case. However the fact that nothing

is presently occurring, or has recently

occurred, in respect of which the public need

protection from the claimants is a matter to

be taken into account.

That is a reference to the fact that they no longer

practise deep sleep therapy. Might I say in that

regard, Your Honours, that that does not

necessarily dispose of the issue and at the outset

I referred to the orders that the tribunal might

make of an educational nature as an example, what

would be the outcome before the medical tribunal

were the doctors to adhere to the view that the

treatment was justified or that it was not in any serious way, dangerous.

That would seem to raise, if the complainant

were successful, a very considerable issue as to

present fitness. Now, I take into account the

rules of natural justice which a doctor would have

to be accorded were his defence, as it were, to

provide grounds for the tribunal to exercise its

powers. I have Smith's case v NSW-Bar Association

in mind. But within that framework of principle,

it may well be that as the doctors have said in

their affidavit that they want to be able to look

at each patient to advance the proposition that the

treatment was justified and/or believed by them to

be justified.

Now, there is no entrapment in the sense that

one might use in a criminal case, where a doctor

has been the subject of very serious findings

before a Royal Commission, and where there is a

bona fide basis for laying a complaint and the

complaint is heard to say, "Well, what does one

make of the doctor who, if the complaint is

successful, is performing this therapy of no worth

and of extreme danger, but is not knowledgeable

enough or skilful enough to understand the dangers

of the therapy". Now, I raise that because on the case that the doctors make that is an alternative,

namely, that the treatment was justified.

Now, that raises, as Mr Justice Mahoney

approached it slightly differently, this question:

in weighing it all up, if over many years, not two

or three or four isolated cases, but for years and

years engaged in a dangerous therapy of no medical
worth, and if one accepts that it involved the

massive use of drugs that were of their nature

potentially lethal, although the conduct has ceased

in 1978 is it a foregone conclusion that applying

the proper standards of the medical profession that

Walton(2) 22/9/92

it does not, at least, raise prima facie a serious

question as to present fitness to practice.

DEANE J:  If you are putting this as a matter of principle I

can follow it and then the choice is rather clear

as a question of law, but Justice Mahoney's

judgment also seems to be against you if you

approach it simply as a matter of principle because

he treated it as a weighing exercise. But if we

are descending into facts, and if what you are

putting is, as it were, to be linked to the facts

of this case, we really get into an area which is

somewhat inappropriate for us, is it not? I mean,

what is the relevance of the fact that, as I read

the papers, Dr Gardner has retired and is not

practising at all. Does that not add a dimension

to whether, if Justice Mahoney's test is a correct

circumstances of this case to bring these	one, it is suppressive and unjust in the
proceedings, for what you say is a non-punitive
purpose, against a doctor who is going to be called
upon to answer years after his retirement, for
something which your client should have brought proceedings years ago.

MR TOBIN:  Your Honour, in the case of Dr Gardiner, that is

a moot point in that - - -

DEANE J: What, it is questioned whether he has retired or

not?

MR TOBIN:  No, with regard to the possibility. I mean,

there was one matter brought against him in 1985,

but I would put to Your Honours that the body of information was not available, the material that

came from the Royal Commission. But that, with

respect, Your Honour, does not close with the other

question of vindication which is, as I understand

it, the way that Mr Justice Gleeson was - - -

DEANB Jt. I follow, and I see the full force of it.

MR TOBINt Yes. But, Your Honour, the problem with the case

is, as the ultimate appellate tribunal, that it has

sprung from first instance in the Court of Appeal,
and the Court of Appeal had perhapa a similar
reluctance to get into the facts because it wished

to deal with it perhaps more compendiously. And

that may well point to the problem that has beset
this litigation in its two forms, Herron v McGregor

and the present matter: the medical tribunal at

least heard the proceedings in 1985 or early 1986 -

the stay application, not a hearing on the merits -

but was loath to do it again in 1991, and the

matter went directly to the Court of Appeal and,

Your Honour, there is no way I can perceive that

one can not get into the facts although, of course,

Walton(2) 35 22/9/92

the principle, we would submit, underpins the whole

of the appeal, the principle with regard to the

protective nature of the- jurisdiction. And with

regard to Dr Gardiner, of course, it is open under

the statute to proceed against a retired medical

practitioner, and I make no bones about the fact

that once he has retired the powers are much more

limited in dealing with any professional misconduct

that is found. It is not for re-education, for

example, Your Honour. But with the other doctors

it is a relevant consideration, in my respectful

submission.

Your Honours, the question that was raised

about the purpose behind the present series of

complaints does point also to the abuse of process

issue. We would not travel beyond what the Court

has said in Williams v Spautz in the criminal

context. The pursuit of criminal proceedings for

an improper purpose is ground for a stay. There is

no parallel ground, we would submit, available in

the present proceedings involving the Department of

Health or the complainant. There is no case made

of bad faith against the complainant, no case made

that the complainant has attempted improperly to

harass the defendant. In other words, there is no

basis for a stay springing from the concept of

abuse of process. We would adopt what was said by

the Court in Jago and what was said by

Lord Justice Ormrod in the Derby Crown Court case

in 1984.

MASON CJ: Have you looked at the latest decisions in

England?

MR TOBIN:  I thought I was pretty up to date, Your Honour.

MASON CJ: What about Attorney-General's Reference (No l of

·i990J, (1992) 3 WLR 9. At page 19 there is

specific agreement with a passage taken from the

judgment of Justice Brennan in Jago. In the

headnot& it is stated that:	even where delay could be said to be
unjustifiable, the imposition of a permanent stay was to be the exception rather than the
rule~ and that even more rarely could a stay
properly be imposed in the absence of fault on
the part of the complainant or the
prosecution, and never where the delay was due
merely to the complexity of the case.

There is a suggestion that a stay should not be

granted unless it can be established that no fair

trial can be held.

Walton(2) 36 22/9/92

The other case is a decision of the Privy

Council, (1992) 3 WLR 249, George Tan Soon Gin v

Judge Cameron. Again, approval is given or agreement is expressed with a passage from the

judgment of Justice Brennan in Jago's case.

MR TOBIN:  Your Honour, we would submit that that issue is

now decided, that is, there is no contest by the

respondents as to the possibility of a fair trial

and, within the limits of jurisdiction that we

assert are imposed on the Court of Appeal, that
there really is no option other than to disallow

the stay. That is, that the Court of Appeal should not have allowed the stay on the material before it and the principles that were appropriately applied.

MASON CJ: Yes, Mr Tobias.

MR TOBIAS: Can I hand up our outline, Your Honour?

MASON CJ: Yes.

MR TOBIAS:  Your Honours, subject to the question of

jurisdiction, as we perceive it the thrust of the
appellant's case is this: firstly, that the
jurisdiction of the supreme court to entertain a

stay application in relation to disciplinary

proceedings is confined. to a situation where either

the respondents are unable to obtain a fair hearing
or where the complaints have been preferred by the

relevant prosecuting authority for reasons that are

improper in the sense of mala £ides and that,

therefore, in the absence of any allegation of mala

£ides and in view of the finding of a fair hearing,

the court exceeded its jurisdiction in entertaining

an application for a stay that was outside those

two parameters.

The second aspect - although it was dealt with

first by my learned friend - was that, in any

event, the Court of Appeal's finding as to

unjustifiable oppression, constituting an abuse of

process and thereby justifying in the balancing

process a permanent stay of proceedings, was flawed
because it proceeded upon an incorrect finding of

fact relating to the comparison of the thrust of

the charges or the old complaints and those of the

new complaints.

At the outset, in our submission, it is clear that the exercise undertaken by all three members

of the Court of Appeal involved what we submit was

an exercise of judicial discretion in respect of

which review to this Court, or to any appellate

court, is limited to ascertaining whether or not,

as presently relevant, there has been an error of

principle or a relevant mistake of fact.

Walton(2) 37 22/9/92

DAWSON J: Why is it a discretion? In any relevant sense

you weigh up the circumstances and reach a legal

conclusion, do you not?

MR TOBIAS: Correct.

DAWSON J: Is that a discretion?

MR TOBIAS:  No, it is a value judgment at the end of the

day. Whether or not, assuming there is an

oppression, it is such as to justify a stay

involves, as Justice Mahoney put it, a normative

process. As Justice Deane put it in Jago, to

determining whether there is oppression involves a

value judgment or an intuitive exercise. But at

the end of the day, either way, there is a

balancing process. It cannot be said in the

present case, in our respectful submission, that

Their Honours in the majority, let alone His Honour

in the minority, failed to undertake such a

balancing process -	except two came down on one
side and one came down on the other.	It would be

our submission that this Court would not interfere

with that balancing process in the absence of a

relevant error of fact or a relevant mistake of

principle.

Your Honours, the jurisdictional issue that

Mr Justice Brennan raised naturally caught all of

us somewhat by surprise.

BRENNAN J: It should not have. It was raised in previous

special leave applications.

MR TOBIAS:  And rejected.

BRENNAN J: Yes, by a majority.

MR TOBIAS:  We were not told the majority. I do not even

think His Honour the Chief Justice announced that

it was by a majority.

DAWSON Jt Yes, he did.

MR TOBIAS: Did he? We just guessed it was Your Honour.

The Court of Appeal in Herron v McGregor held there

was jurisdiction for the reasons that have been	referred to by my learned friend, Mr Tobin, and
Justice McHugh's judgment at pages 251 and 252.
This Court, as Your Honour says by a majority, refused leave to appeal. Since that time,
Grassby's case has been decidedr and I think it was as a consequence of Grassby's case decided in this
Court that the view was formed that it would not be
open to the tribunal itself to entertain a stay application as had the tribunal in 1985. As a
consequence thereof the proceedings were instituted

Walton(2) 38 22/9/92

in the supreme court and determined by the Court of

Appeal.

Before the Court of Appeal, it was not argued

that that court did not have jurisdiction to

entertain the application nor was it referred to in

the special leave application nor is it a ground of

appeal. That makes it difficult for us to respond

to the point which Your Honour Justice Brennan has

raised on the run, as it were, and we would prefer

not to but provide Your Honours, if Your Honours

wish it, with properly researched submissions on

the issue. However, having said that - - -

BRENNAN J: The course which you follow is a matter for you.

I have indicated, however, the concern that I have on the question of jurisdiction.

MR TOBIAS:  Your Honour, the course that we would wish to

follow, with the Court's concurrence, is not simply

to do it on the run but to provide to the Court properly written submissions within a specified time.

MASON CJ: Yes. Obviously you did not have advance notice

that this point was going to be raised against you.

MR TOBIAS:  Nor did Mr Tobin, in fairness to him.

MASON CJ: No, he did not but he is seeking to raise the

point.

MR TOBIAS:	He was given some judicial assistance.
MASON CJ:	You have not indicated that you are opposing the grant of leave to amend.
MR TOBIAS:	I am, Your Honour.

MASON CJ: You are?

MR TOBIAS: Because of the reasons I have just indicated.
MASON CJ:	I thought when you had got to the stage of

indicating you wanted to present a properly

researched argument you were rather anticipating

that leave to amend would be granted.

MR TOBIAS:  I suppose I was.

MASON CJ: But you are opposing it?

MR TOBIAS: Yes, I am, Your Honour, at this point of time.

Mr Tobin has indicated that he would wish to put

two propositions to the Court on jurisdiction: one

is that section 23 of the Supreme Court Act is

confined to courts of law and not to quasi-judicial

Walton(2) 39 22/9/92

tribunals; and secondly, as I understand it, that

if it does have any power of review it is confined

because of the provisions of section 32 O of the of review to a situation only where a fair hearing

cannot be obtained.

One would have thought that it would be odd,

to say the least, that the statutory provisions
prevented prior to the commencement of a hearing

before the tribunal an application that the

proceedings should be permanently stayed at least

upon the basis that otherwise would result

necessarily in an unfair hearing. Surely, one can
ask rhetorically, the statute does not require a hearing to be conducted unfairly which otherwise

cannot be remedied.

However, I do not wish to elaborate upon that argument at this point because, firstly, we oppose

the grant of leave at this point of time but, if

Your Honours grant leave, then we would seek

appropriate time to put in a written submission on

the issue having seen the basis upon which my

learned friend seeks to raise the issue.

MASON CJ: Now, Mr Tobin, you had better formulate these

amended grounds and present them to the Court at

2.15.

MR TOBIN: Yes, Your Honour.

MR TOBIAS:  So, Your Honour, with Your Honour's permission -

I notice the time - at 2.15, subject to the question of whether Your Honours grant leave and,

therefore, the future course of the case in

relation to the issue of jurisdiction, I would deal

with what I might refer to as the substantive

~ssuea.

MASON CJ: Very well, we will adjourn until 2.15.

AT 12. 45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14:

MR TOBIN:  Your Honour, I have written out an amended ground

of appeal. May I hand Your Honour the
Chief Justice a handwritten copy of that, and may I

read it?

Walton(2) 40 22/9/92

MASON CJ: Yes.

MR TOBIN: I have not had it copied for the other members of

the Court.

Alternatively to ground 1, the Court of Appeal

exceeded its jurisdiction by granting a

permanent stay of proceedings before the

medical tribunal of New South Wales in that
the medical tribunal was not a court

ministering justice in New South Wales.

the other contention is contained as we see it in	I think that encapsulates the major contention and
the first ground of appeal.

MASON CJ:	Mr Tobias, I think you should proceed on the footing that we will consider this application for
leave to amend in the light of your opposition to
it and we will give our decision in due course. It
may be, if we reserve judgment, judgment on this
application for leave to amend will be reserved
along with the decision in the case.
MR TOBIAS:	If Your Honours were of the view that leave

should be granted, then I assume we will be

notified and given the opportunity of putting

submissions - - -

MASON CJ:	I think you ought to present your argument on the footing that it is possible that leave will be
granted without committing the Court to that
process. I think you - - -

MR TOBIAS: Well, I indicated earlier, Your Honour, I am not

in a position to do that.

MASON CJ: No, you will want, I gather, in the light of what

you said earlier, to present some considered

written submission to the Court.

MR TOBIAS& Yes. That is why I was not going to deal with

it any further.

MASON CJ: No, that is all right.

MR TOBIAS:  Do I understand from what Your Honour has just

put that we should proceed at the end of the day

upon the basis that we should put in written

submissions on both sides on this issue.

MASON CJ: Yes, well, no doubt Mr Tobin will want to respond

to any written submissions - - -

MR TOBIAS:  Well I would assume that as it is my learned

friend's ground of appeal, he will put in a

submission to which we will respond.

Walton(2) 41 22/9/92

MASON CJ:  I am not sure. He has not indicated that he

wishes to do that at the present time. He advanced

what I thought to be an extremely succinct

submission which could be encapsulated in the

course of two or three sentences, but it is a

matter for him to indicate what he wants to do.

MR TOBIAS:  We will take it up with him. Does Your Honours

wish to place us on any particular time limit or

possible? just upon the basis we will do it as soon as

MASON CJ: Well we will, but that will partly depend on what

Mr Tobin wishes to do.

MR TOBIAS: Well in that case, Your Honour, may I then deal

with this matter that was at the forefront of my
learned friend's argument and which is encapsulated

in paragraph 3.3 of his outline and in particular, the second sentence, and that goes to the issue as whether or not there is sufficient similarity

between the allegations that were made in the old

complaints compared to those made in the new

complaints.

The submission that is put, and which we

contest as a matter of fact, is and I quote:

It would not have been possible to bring

complaints against the respondents based upon

the prescription and administration of an

essentially standard drug regime or on the

administration of ECT to patients undergoing

such a treatment before the conclusion of the

Royal Commission.

The difficulty with that argument is that it

contains within it assertions of fact that were not

supported by the evidence that was filed on behalf

of the appellant in the court below. The

appellant, Your Honours, filed an affidavit by

Mr Wallach which is to be found in volume II at

page 207 and following. Apart from setting out the

history of attempts to obtain - and there was no

oral evidence given before the Court of Appeal -

that affidavit commences at page 207 through to

page 216.

The gravamen of it is that prior to

October 1988, notwithstanding some attempts to

obtain hospital records which were unsuccessful,

the department was not aware of the identity of the patients that were treated by the subject doctors, other than those that were the subject of the first

complaints - the old complaints - and also those that are referred to in paragraph 4 on page 209,

between lines 10 and 15, which involves some four

Walton(2) 42 22/9/92

patients whose names appear in schedule 1 to the

present complaints against Dr Herron.

The gravamen of the affidavit is to be found

in paragraph 11 on page 213, where Mr Wallach said

that:

except for the copies of the records of

treatment at Chelmsford •.••. of the patients -

nominated -

all other copies of records of treatment in relation to the patients referred to in the

Schedules to the current complaints -

that is leaving aside those the subject of the old

complaints -

were first made available to the

Department •••.. had been tendered •.••. before

the Royal Commission.

There was some discussion before the Court of

Appeal as to the powers of the department to obtain

these records and, in particular, a power that was

not in the Act at the time but which is in the Act

now, that is the Medical Practitioners Act, of

having a power to search.

It was common ground that the department had

the power to enter private hospitals for the

purposes of inspecting them, and there was no

suggestion that at any time officers of the department could not have attended upon the

hospital at any time in order to observe precisely

what was going on.

The issue that arose was as to whether or not

they could also obtain access to the hospital
records. It was accepted that access to those

records would not be available unless proceedings

were commenced in the tribunal, in which case, no

doubt, subpoenas could have been issued in the

normal way. The point that we seek to make,

however, is that the only complaint, or the only

prejudice, so to speak, sustained by the	department, was the fact that it was not able,
except to the extent set out in paragraph 11, to
identify the patients, until the Royal Commission,
who had been subjected to the subject treatment.

At no time did Mr Wallach say and thereby give

any credence to the assertion contained in

paragraph 3.3 of the outline, that:

Walton(2) 43 22/9/92

It would have not been possible to bring

complaints against the respondent based -

in effect, on the nature of the treatment. The lie

to that statement is, of course, as

Mr Justice Deane, and I think Your Honour the

Chief Justice pointed out, to be found in an

examination of the complaints themselves, and if I

can simply take Your Honours to volume I,

commencing at page 137, in relation to the

complaint by Mr McGregor who was an officer of the

Department of Health. In paragraph 4 on that page,

just above line 30, the allegation is that:

Dr Herron failed to exercise any or any

adequate supervision ••••• or control over the

operation of the sleep therapy programme.

On the next page it asserts:

Dr Herron engaged in electro-convulsive

therapy and sleep therapy at Chelmsford -

notwithstanding certain shortcomings as alleged.

In paragraph 12 it refers to the administration of

ECT, in the circumstances, and in paragraph 13 it

alleges Dr Herron treated Mr Hart:

using a novel and dangerous procedure and

combination of procedures -

being, of course, ECT and DST. The complaint in

relation to Francis, and without wishing to be

over-repetitive of material to which Mr Tobin's

attention was drawn by Your Honours during

argument, paragraph 5 at the bottom of 157 and the

top of 158 makes it clear that what was the subject

of the complaint was "deep sedation therapy" and

"electro convulsive therapy" that was given in a

manner that involved "a risk of death or serious

injury". It would be difficult to suggest, we would

respectfully submit, that that was any different,

in substance as distinct from words, with the

allegation now contained in a complaint that that

form of treatment was unjustifiably dangerous.

The question of the standardization of drugs

is squarely raised in paragraph 7 commencing at the

bottom of 159 and the first half of page 160 and is

equivalent, in our respectful submission, to the

allegation contained in paragraph 1.2 of the

present complaint. The risks that are referred to

in paragraph 1.3 of the present complaint find

their equivalent in paragraph 8(i) on page 163 and

Walton(2) 44 22/9/92

in subparagraph (iii) on page 164 between lines 5

and 12.

The particulars of lack of supervision at the

bottom of page 164 and the whole of 165 are merely

particulars, in our submission, if one reads them,

of the general allegation that is now made that the

risks of the treatment were such as to render it

unjustifiably dangerous.

So far as Dr Gill is concerned, I content

myself with giving Your Honours the relevant

references without taking Your Honours to the

volumes. The old complaint relating to Dr Gill is

to be found in volume IV, page 901 and following,

especially 904 paragraph 11, 905 paragraph 15 -

that is in relation to Podio. In relation to

Adams, 915 paragraph 4, 917 paragraphs 13 and 14,

918 paragraphs 15 and 16, and it should be noted in

relation to paragraph 16 that there is an

allegation that Dr Gill used standard doses of

these relevant drugs.

As to Dr Gardiner, the relevant old complaint

is to be found in volume V page 1205 and following,

especially 1205 paragraph 1, 1208 paragraph 12 and

1210 paragraph 4. As to the allegation in relation

to Dr Gill that is now made that he was the medical

manager of the hospital and ought to have been

aware of what was going on, a similar allegation,

at least of knowledge that Dr Gill performed that

task, is to be found in volume IV page 916 lines 5

to 10.

As to the assertion that in the old complaints

there was no suggestion or no allegation that, to
the knowledge of the doctors, the treatment was of

no therapeutic value, it is true that at least in

express words there is no such allegation whereas

there is now. However, two points are to be made.

The first is that it is clear from the nature of

the allegations contained in the old complaints

that it was implicit in those allegations that the

treatment was of little or no worth.

To the point made by Your Honour

Mr Justice Deane as to the knowledge of the

department of that fact, we would draw the Court's

attention to the statements that were issued by the

Royal College of Psychiatrists of Australia and

New Zealand which are set out in volume III, the

first one which was in October 1980, at pages 643

to 645, and the second statement which was

purported to revise the first statement, and issued

in May 1981, in the same volume at 659 to 660.

Walton(2) 45 22/9/92

In the first of those statements, at page 645,

in summary it was said:

D.S.T. is a hazardous technique with

unsubstantiated therapeutic benefit.

In the second, at page 660, paragraph 2 of the

summary - first of all it alleges it was "hazardous

technique." Of course, this was after the

treatment had ceased, in 1978:

Based on published clinical reports Deep Sleep

therapy is undoubtedly a hazardous technique.

Although there have been a number of

uncontrolled clinical papers, controlled

studies confirming effectiveness appear to be

lacking.

In light of the above considerations, there

would seem at present no justification for the

use of this form of treatment.

Which one would have thought was a clear assertion that it was of no therapeutic benefit.

BRENNAN J: What is the evidentiary status of that document?

MR TOBIAS: The evidentiary status of that document was that

it was a public document issued by the college. If

Your Honour is asking me whether the department had knowledge of the existence of that document, I

think the answer was that it was proved that it

did, at least in the earlier Herron v McGregor

proceedings. Mr Justice McHugh referred to it in

his judgment in Herron v McGregor at 249F, that is

of the judgment in that case.

I do not understand, Your Honour, that it was

denied by the department at any material time that

they were aware or could have become aware of the

existence of those statements by the college. certainly was not raised in the proceedings, the It	subject of this appeal, because it was not in
contest: the extent of the delay and the fault of the department in relation to it, nor could it be.
That was a live issue in the proceedings in 1986.
I think, and I stand subject to correction, that it was established there that those documents were in
the departmental files.

BRENNAN J: I see it is indexed as a respondent's exhibit.

When was it tendered?

MR TOBIAS:	It was a respondent's exhibit in the present case. It was annexed to Mr Butcher's affidavit.
But as I have indicated, it was not a live issue in

Walton(2) 46 22/9/92

the present proceedings. I am sorry, it was not

annexed to his affidavit, it was an agreed bundle

of documents.

BRENNAN J:	I see.
MR TOBIAS:	An agreed bundle of documents went in, not

dissimilar to a bundle of documents that went in

the earlier proceedings, to indicate the history of

the departmental knowledge in relation to the

matter. In fact what we attempted to do in the new

proceedings was to establish - and it is referred

to in the judgment - that the department was aware

that this form of treatment was being conducted at

Chelmsford as far back as 1971. It did not just	start in 1978 with a flurry of correspondence
between relevant ministers. At the end of the day
it was not an issue.

For those reasons, Your Honour, we would

respectfully submit that the findings of the Chief Justice, which are for all intents and
purposes concurred in by the President and not, in

our submission, really denied by

Mr Justice Mahoney, who approached it somewhat

differently. But the statement at 768 of the

Chief Justice's reasoning, referred by

Mr Justice Deane to my learned friend, is well

supported by the material.

Your Honours, in relation to the two other

issues that are set out in paragraphs 2, 4 and 5 of
my learned friend's outline, I will deal with them

in reverse order. The submission that is made by

the appellant assuming jurisdiction is that the	court's supervisory powers are only available where
either it is established that the relevant delay
has caused such prejudice, such actual prejudice as
~ecessitates a finding that a fair trial cannot be
attained; or, alternatively, even if a fair trial
can be had, that the prosecution is brought for an improper purpose or mala fides.
My learned friend relies on what fell from the majority of this Court in Willia.ms v Spautz,
66 ALJR 585 at 588, a case of course in which the
allegation was not that a fair hearing could not be
obtained, but that the proceedings had been
instituted for an improper purpose. I hope the
Court will excuse me if I do just quote one passage at page 588 of that judgment, recent though it is,
because in our submission it is not authority for
the proposition that absent lack of fair hearing or
absent improper purpose or mala £ides that the
supreme court has no supervisory jurisdiction to
grant a permanent stay where otherwise it
determines that there is oppression amounting to an

Walton(2) 47 22/9/92

abuse of process. In the passage at page 588E in

the first column, the Court referred to the dual

purpose of the jurisdiction to grant a stay being

either:

"to prevent an abuse of process or the

prosecution of a criminal proceeding ••• which

will result in a trial which is unfair".

In the next sentence, after the relevant citations, the Court said this:

This does not mean that the prosecution of

proceedings in such a way as to make them an

instrument of oppression which will result in

an unfair trial stands outside the concept of

abuse of process.

One can glean from that sentence, in our

submission, that this Court accepted, or the

majority of this Court accepted, that where proceedings, or the bringing of proceedings,

constitute an instrument of oppression, that a stay

may be granted notwithstanding that there is no

question of an unfair trial.

A similar concept, in our submission, is to be

found in the judgment of Mr Justice Deane in Jago
at page 58 - and I will not do other than draw the

Court's attention to it - in which His Honour made clear that oppression stood apart as a form of

abuse of process to a case where delay causes or

brings about necessarily an unfair trial. Further,

in our submission, the majority of the Court in

Spautz, and Your Honour the Chief Justice in Jago, adopted certain passages from the judgment of

Mr Justice Richardson in the New Zealand case of

Moevao.

It is our respectful submission that the

passages in His Honour's judgment in the New

Zealand case make equally clear that he did not

intend to confine the concept of oppression

amounting to an abuse of process in the manner

contended for by the appellant in this case. It

has been said often enough that the categories of

oppression are not closed. The relevant references

are set out in our outline of argument. Further,

the concept of oppression is defined in the manner

in which we have set out in paragraph 4 of those

submissions.

Mr Justice McHugh in Herron v McGregor was of the view consistent with what we have said in

paragraph 4, that the continuation of proceedings

in circumstances which were tantamount to

persecution, eg or alternatively harassment,

Walton(2) 48 22/9/92

constituted a form of oppression amounting to an

abuse of process.

The Supreme Court of Canada in a case that has

not been referred to as far as I am aware

previously in this Court, Your Honours will

recollect in Jago that Jewitt's case was referred

to, but Keyowski v Reg, (1988) which was subsequent

to Jewitt has not been referred to, the Supreme

Court of Canada held that the concept of oppression in this context of abuse of process could not be confined in a manner which required prosecutorial

misconduct. May I hand up multiple copies as it

was not on our original list.

The judgment in that case was delivered by

Justice Wilson, on behalf of the whole court, and

Her Honour referred to Jewitt, case cited with	it is a short judgment. At the bottom of page 658
approval in Jago, and to what was said in R v Young
by the Ontario Court of Appeal that:

A stay should be granted where "compelling an

accused to stand trial would violate those

underlie the community's sense ·of fair play	fundamental principles of justice which
and decency", or where the proceedings are
"oppressive or vexatious".

Going down two paragraphs:

To define "oppressive" as requiring misconduct

or an improper motive -

ie or including, we would submit, mala £ides -

would, in my view, unduly restrict the

operation of the doctrine. In this case, for

example, where there is no suggestion of

misconduct, such a definition would prevent

any limit being placed on the number of trial

that could take place.

This was a case of successive trials where a jury

had failed on two occasions to agree.

Prosecutorial misconduct and improper

motivation are but two of many factors to be

taken into account when a court is called upon
to consider whether or not in a particular
case the Crown's exercise of its discretion to

re-lay the indictment amounts to an abuse of

process.

Her Honour delivered the judgment of the court. At

the end they agreed with the majority in the Court

of Appeal, that in this case on its facts it was

Walton(2) 49 22/9/92

not oppressive but departed from the principle that

had been adopted by the majority in the court

below, which is a principle which is pressed upon

Your Honours by the appellant in this case.

In our submission, what the Supreme Court decided in 1988 is perfectly consistent with what

Justice Richardson decided in Moevao and, in our

submission, what has been decided in Jago and in

Spautz. There is nothing, in our submission,

contrary to what has been put by my learned friend,

to suggest that this Court in Spautz sought to

confine itself or confine the jurisdiction, to confine the concept of abuse of process to a

situation where it could be established that there was, to use the Canadian expression, prosecutorial

misconduct.

Your Honour the Chief Justice referred my

learned friend to the two recent English cases. Of

those - and we would respectfully submit that there

is nothing inconsistent with the submissions that

we are now putting to the Court to be found in

those cases. In the first place, those cases were
pure delay cases and therefore, consistent with

what this Court said in Jago and what Mr Justice Brennan said in Jago, the Privy Council in Tan's

case and the Court of Appeal in the Attorney-

General's Reference indicated that delay of itself

was insufficient unless it constituted or would

constitute an unfair hearing.	I gather Your
Honours have that case.

Can I take Your Honours to Tan's case, (1992) 3 WLR 249, because Their Lordships in the

Privy Council set out the relevant passages in the
Court of Appeal's decision in the Attorney-

General's Reference. At the bottom of page 261,

.Their Lordships saidi

The facts of Attorney-General's Reference

are of no consequence for present purposes.

It is however important to note the two

questions which were referred to the Court of

Appea1 for consideration:

"(i) whether proceedings upon indictment may

be stayed on the grounds of prejudice

resulting from delay -

so it was a delay case -

in the institution of those proceedings even

though that delay has not been occasioned by

any fault on the part of the prosecution~ (ii)

if the answer to (i) above is in the

affirmative what is the degree of: (a) the

Walton(2) so 22/9/92

likelihood and (b) the seriousness of any
prejudice.

Having referred to Jago, and it is said that the argument that was put forward was similar to that which was advanced by the appellant in Jago, and

which this Court rejected, Their Lordships said, just below Con page 262:

The court continued -

that is the Court of Appeal in Attorney-General's

Reference -

"However, the most usual ground is that based

on delay, that is to say the lapse of time
between the commission of the offence and the

start of the trial. The number of applications

based on this ground has increased alarmingly

over the past few years."

And then, at the bottom of the page, they set out their opinion, that is the Court of Appeal. Just

below G:

As it is not possible to anticipate in advance

all the infinitely variable circumstances

which may arise in the future, we feel

ourselves, albeit reluctantly, forced to agree

to a limited extent with that concession.

That is, a qualified yes.

However, we remind ourselves of the principles

outlined earlier in this judgment and the

observation of Lord Morris in Connelly that

'generally speaking a prosecutor has as much

right -

et cetera. At the bottom of the page:

Stays imposed on the grounds of delay or for

any other reason should only be employed in

exceptional circumstances.

No-one seeks to cavil with that.

If they were to become a matter of routine, it

would be only a short time before the public,

understandably, viewed the process with

suspicion and mistrust. We respectfully adopt

the reasoning of Brennan Jin Jago v District

Court of New South Wales. In principle,

therefore, even where the delay can be said to

be unjustifiable, the imposition of a

permanent stay should be the exception rather

than the rule. Still more rare should be

Walton(2) 51 22/9/92

cases where a stay can properly be imposed in

the absence of any fault on the part of the

complainant or prosecution.

If there was no fault on the part of the

prosecution in bringing about the delay, or if

there was fault on the part of the accused, then it

would run foul, of course, of the principles that

were set out in Jago and which find their source in

States in Barker v Wingo. the judgment of the Supreme Court of the United

Delay due merely to the complexity of the case

of contributed to by the actions of the

defendant himself should never be the

foundation for a stay.

Going down to just below E:

"It follows from what we have said that in our

judgment the decision ••••• was wrong. The

delay, such as it was, was not unjustifiable;

degree of potential prejudice was	the chances of prejudice were remote; the
small ••••• there was no danger of the trial
being unfair; iri any event the case was in no
sense exceptional -

I do not think anything else is said in Tan's case

that departs from or changes that statement. What

we submit, with respect, is that there is nothing

in that decision which militates against or is

inconsistent with our submission that there is a

category of abuse of process constituted by

content of that particular concept involves oppression or unjustifiable oppression; that the

circumstances that are productive of serious and

unjustified harassment or persecution; not used in
the pejorative sense, and that the circumstances of

the present case constitute such a form of

oppression as the majority found, having balanced

proceedings before the tribunal proceeding to a	that finding against the public interest in the	hearing.
My learned friend relies on what was said by Lord Justice Ormrod in Reg v Derby Crown Court,
Ex parte Brooks, in the passage that is no doubt
well known to Your Honours as it has been cited elsewhere. We make two conunents in relation to
that passage. The passage is at 80 Cr App R 164,
at 168 to 169. It is clear that in that passage
His Lordship said that:

It may be an abuse of process if either (a)

the prosecution have manipulated of misused

the process of the court -

Walton(2) 52 22/9/92

ie acted mala fide -

or, (b) on the balance of probability the

defendant has been, or will be, prejudiced in

the preparation or conduct of his defence by

delay.

Two comments may be made, the first, of course, in

relation to (b) is that His Lordship did not

constitute an unfair trial, but that has certainly	suggest that that prejudice should not necessarily
now become the law. But secondly, in our
submission, His Lordship cited those two examples as precisely that, no doubt being the most common
cases. He did not say it may only be an abuse of process if either (a) or (b). He said "may". This
point was picked up by Mr Justice Priestley in Watson vAttorney-General, and I will not take Your Honours to it, in the passage that we have
referred to in paragraph 2 of our outline, but in which His Honour said, having referred to that
passage of Lord Justice Ormrod's in Brooks:

I do not think that the division of

possible abuses of process ••••• into two

categories is intended to be an exhaustive and

final division; it seems however to me to

provide a useful guide -

so that, in our respectful submission, there is no

authority which supports the proposition that the

concept of abuse of process, the second of the dual

purposes referred to in Williams v Spautz. The

instrument of oppression is confined to where that

instrument of oppression is constituted by mala

fides or in proper conduct on the part of the

prosecution such as, where they seek to be no more

than vindictive, having no bona fide belief in the

.justice of the complaints they seek to prefer.

One accepts - and one judge of this Court has

accepted - that the notion of unfairness, as

Your Honour Mr Justice Deane said in Jago at 57

point 1, defies analytical definition as does, we

would submit, the notion of oppression. It is a

concept - and again I quote Your Honour

Mr Justice Deane from Jago at 57 point 5, that

involves a

an undesirably, but unavoidably, large content

of essentially intuitive judgment.

It involves, Your Honour again said at page 61

point 4, "a value judgment"; "a normative process",

Mr Justice Mahoney in the present case said at 803,

804 - "an instinctual reaction", as the President

said at page 788 line 30.

Walton(2) 53 22/9/92

The basis upon which my learned friend sought

special leave in this matter was that the Court of

Appeal had developed a form of oppression

constituting an abuse of process that lacked
content. The thrust of his argument is somewhat
different today, although perhaps at the end of the

day amounting to the same thing. We would

respectfully submit that the term "oppression" is a

well-known expression and has been judicially	defined in the manner that we have set out in
paragraph 4 of our outline.

MASON CJ: Mr Tobias, have you brought to our attention all

which appears in Tan v Cameron and

Attorney-General's Reference that supports the case presented by the applicant? What I have in mind

page 11, the second question was:  is, if you look at Attorney-General's Reference at

the seriousness of any prejudice which is

proceedings. required to justify a stay of such

Then the response to that by the court of Appeal, picked up of course in the Privy Council, was:

In answer to the second question posed by

the Attorney-General, no stay should be

imposed unless the defendant shows on the

balance of probabilities that owing to the

delay he will suffer serious prejudice to the

extent that no fair trial can be held - - -

MR TOBIAS:  I accept that, Your Honour but, in our

submission, that answer was given in the context of

a pure delay case. Consistent with Jago, that

would be so. In our respectful submission, this

Court's decision in Jago, which was a pure delay case, dictated to the extent to which the English courts follow the High Court and is consistent with the very answers that Their Lordships gave to the

Attorney-General's Reference. In our submission, if my learned friend is

seeking to assert that the effect of the English
decisions, those two, is that in every case there

must be an unfair trial, then firstly, that is not

what Their Lordships decided, because it was

decided in the context of pure delay, and secondly,

this Court said in Spautz, in the passage which I	it would be inconsistent with what the majority of
have already referred to, which made clear that
there were cases of oppression where a permanent
stay could be granted notwithstanding that
the - - -

Walton(2) 54 22/9/92

MASON CJ:  My question was only directed to the two English

cases.

MR TOBIAS:  But, in our submission, the two English cases do

not support the appellant for the reason that they

said no more and no less than what this Court

decided in Jago in terms of the requirements of a

permanent stay where unjustifiable delay was the basis of the application.

BRENNAN J:  How does Williams v Spautz take it any further?

If one looks at that sentence, it has to be "an

instrument of oppression which will result in an

unfair trial".

MR TOBIAS:  No, no. What Their Honours are saying there, I

hope, what they are saying is that it does not -

the sentence reads this:

This does not mean that the prosecution of

proceedings in such a way as to make them an

instrument of oppression which will result in

an unfair trial -

is outside the concept of abuse. Obviously it is

inside the concept. What Their Honours are saying,

in our submission - and one hesitates to seek to

interpret what this Court has said so recently -

is, if Your Honour looks at the first sentence of

that paragraph the disjunctive "or" is used, and

one assumes advisedly, and that would be consistent

with the adoption by the majority in this case, and

His Honour the Chief Justice, and I think

Mr Justice Deane in Jago, with what Justice

Richardson said in the Department of Labour

case - - -

BRENNAN J:  That m4f be so but let me understand this

correctly. Is there anything in Williams v Spautz

which suggests that absent an unfair trial, there

can be an abuse of process?

MR TOBIASi Yes.

BRENNAN J: Where does one find this?

MR TOBIAS: An improper purpose.

BRENNAN J:  Is there any suggestion of an improper purpose

here, in this case?

MR TOBIAS:  No. Well, no in the sense of mala fides.

BRENNAN J: Is there anything in Williams v Spautz that is

applicable in your submission to the circumstances

of this case?

Walton(2) 55 22/9/92

MR TOBIAS: Only in general principle. That case was an

improper purpose case, as Your Honour knows.	The
principle, which we submit was espoused by the

majority at 588, was that improper purpose was a

form of abuse of process which, if established,

justified a stay notwithstanding that the accused

was still able to obtain a fair trial. That is made clear in the paragraph in the first column

following that which I have just read.	On page 589
in the second column, between D and E,
Their Honours said:

In our view, the power -

that is, the power to grant a stay -

must extend 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.

Their Honours are speaking in the general without, in our submission, seeking to suggest that

instances of oppression, absent a problem about a

fair trial, are confined to improper purpose or

mala fides.

My learned junior asked me to refer

Your Honours to the passage at 589 in the first column commencing just above E.

It follows that the Court of Appeal was

mistaken in treating the present case ••. as if

it were governed by the considerations which

were influential, even decisive, in Jago.

ie a fair trial.

There, the complaint was that delay and

prejudice, whether it be called abuse of

process or not, precluded a fair trial.	No
element of improper purpose was involved. So it was relevant, indeed necessary, to
determine whether a fair trial could be held.
That is not the position here when, even if the trial be fair, the proceedings have been brought for an improper purpose and therefore
amount to an abuse -

We would contend, Your Honours, that the relevant

principle, in the context of the present case, is

that adumbrated by His Honour Mr Justice Deane in Jago at page 58 and at page 61. I do not want to

take Your Honours to it. This was put to me in the

special leave application as to whether other

members of the court agreed with it and it was our

submission, which we maintain, that Justice Gaudron

Walton(2) 56 22/9/92

came close to it at the passage in Her Honour's judgment at the top of page 78. His Honour the

Chief Justice did not deal with it specifically,

but in our submission the fact that His Honour the

Chief Justice and the majority in Spautz adopted
the passages from Justice Richmond's judgment in
Moevao's case and which are extracted in the

Chief Justice's judgment in Jago at page 30, make

it clear in our submission that the dichotomy

between oppression on the one hand, amounting to an

abuse of process, is an independent ground for the

grant of a stay in an appropriate case, an

independent ground from that of delay causing an

unfair trial.

Interestingly enough, in the passage at

page 30 of Jago, cited by His Honour the

Chief Justice from Moevao, there are some important

words omitted, obviously because they were not

relevant to the principle, but what

Mr Justice Richmond said was this, and perhaps I should go to that. It is a full passage. Moevao was reported in NZLR (1980) 464 and the relevant

passage is at page 482.

At 482, starting above line 15, His Honour said - this is the passage which is adopted and

referred to in Spautz:

The justification for staying a

prosecution is that the Court is obliged to

take that extreme step in order to protect its

own processes from abuse. It does so in order

to prevent the criminal processes from being

used for purposes alien to the administration

of criminal justice under law. It may

intervene in this way if it concludes from the

conduct of the prosecutor in relation to the

prosecution that the Court processes are being

employed for ulterior purposes -

that is the improper purpose case -

or in such a way -

and the words in brackets that were omitted from

the citation of this passage at page 30 of Jago -

(for example, through multiple or successive

proceedings) as to cause improper vexation and

oppression.

The present case is exemplified, in our submission,

in terms of oppression by successive proceedings

and that is the basis upon which the majority in

the Court of Appeal determined that the relevant

element of oppression was present. That then

Walton(2) 57 22/9/92

brings me to the third argument of my learned

friend which relates to the question of double

jeopardy.

Care needs to be taken to understand the basis

upon which the principle or doctrine of double jeopardy was dealt with by the majority in the

Court of Appeal. The Chief Justice, and in our

respectful submission, the President, made it

clear, but particularly the Chief Justice, that he

was not seeking to apply that doctrine in itself

because it was accepted that there had not been a

hearing on the merits in one sense and the issues

may have been different and so forth.	There had
not been an acquittal.

The point that they sought to make, in our

submission, was that the underlying policy of that

doctrine which was one of oppression and the

indicia that gave rise to that oppression were

present and I quote "to an abundant extent" in the
present case.

In paragraph 8 of our outline we have set out those passages in Davern v Hessell and

Cooke v Purcell and in Lord Devlin and

Lord Pearce's speeches in Connolly that indicate

the underlying basis of the doctrine, the indicia.

It is noteworthy in relation to Connolly, (1964) AC

1254, particularly in the speech of Lord Pearce at

1364-1365, that His Lordship was of the view, and

Lord Reid agreed with both Lord Pearce and
Lord Devlin, that the underlying doctrine of double jeopardy could apply in the exercise of the court's

process. Would Your Honours forgive me if I read judicial discretion to grant a stay for an abuse of

that passage commencing at 1364 being the last

paragraph on the pager

The above cases show that a narrow view

of the doctrines of autrefois acquit and

convict, which has at times prevailed, does

not comprehend the whole of the power on which

the court acts in considering whether a second
trial can properly follow an acquittal or

conviction. A man ought not to be tried -

and so forth -

it is better that the courts should apply to

such cases an avowed judicial discretion based

on the broader principles which underly the

pleas.

Having referred to what Lord Alverstone said in

Miles and Lord Reading in Barron, His Lordship said

this, in about the third sentence:

Walton(2) 58 22/9/92

The court has, I think, a power to apply, in

the exercise of its judicial discretion, the
broader principles to cases that do not fit
the actual pleas and a duty to stop a

prosecution which on the facts offends against

those principles and creates abuse and

injustice.

The gravamen of, or the thrust of those statements

was picked up in a manner that is relevant to the

present case in what Mr Justice Deane said in

Davern v Hessell at page 67 and 68, and which was

then picked up by what the President said in Cook

v Purcell in the passages indicated. In effect

that was, without taking Your Honours to those

passages, that where a person has been the subject of charges and those charges have been terminated,

he is entitled to assume that the matter is at an

end and not, to use Your Honour Mr Justice Deane's

phrase, "wake up on the morrow and find that he in

effect has been charged again".

In Broome v Chenoweth, which is not on our

list and copies of which we hand up,

Mr Justice Dixon as he then was, at the passage

referred to at 599 point 4, referring to the

requirement that:

The rule against double jeopardy

requires -

that the "earlier proceedings" must have resulted

in a "discharge or acquittal" said, and I quote:

This last requirement may be satisfied by

upon the truth of the allegations contained in	something less than an actual adjudication
the charge.

One would have thought, and we so submit, with

respect, that that requirement is satisfied in a

case such as the present by an order of a superior

court that the proceedings be permanently stayed.

It would be difficult, short of an acquittal after

a concluded hearing, to imagine a more specific

permanent termination to proceedings than such an

order.

If that be so, and this is the way it was

approached by the majority in the Court of Appeal

in the present case, then tha underlying element of

oppression of again being placed in jeopardy, the

indicia of the policy underlying the strict

doctrine of double jeopardy, is present, not so as

to involve a direct application of the rule itself,

that was eschewed by Their Honours, but to support

a finding of oppression of an unjustifiable nature.

Walton(2) 59 22/9/92

If, as we submit, and we do so in paragraph 6

of our submissions, consistent with what this Court

has decided in Jago and Spautz, adopting what

Justice Richmond said in the New Zealand case, we

are concerned with the maintenance of public

confidence in the administration of justice, a	matter referred to by Justice McHugh in Herron v
McGregor, at a page reference which I will give Your Honours in a moment, then, in our submission,
to set at nought, in effect, an order of the Court
of Appeal in respect of which this Court refused special leave, that permanently stayed charges of professional misconduct which in substance are the
same as those now sought to be preferred, must
enliven, in our submission, concern that public
confidence in the administration of justice in the sense of the effect and the lasting effect of
orders of the court is to be eroded. -

Your Honours, it is in that context, in our

submission, that Their Honours, and particularly

the Chief Justice, dealt with the so-called double

jeopardy principle or, more importantly, the

underlying basis of that doctrine based as it is on
the very concept with which, in our submission, we

are presently concerned, namely that of oppression

in the sense of persecution or harassment.

Your Honours, that one can be harassed, ie

oppressed, in such circumstances, was recognized

also by Justice Mahoney in Cooke v Purcell, (1988)

14 NSWLR 51 at page 68. I do not ask Your Honours

to look at it, except to give Your Honours the

reference. At page 68, below line G, where

His Honour said this:

I am conscious that the rationale of the

double jeopardy principle is not the same as	that of estoppal and that one may be harassed
by proceedings notwithstanding that the issues

are not, in the relevant sense, the same. So that it is in that context that Their Honours

determined that, in effect, overriding weight

should be given to the oppressive nature of the

proceedings brought some years after the court had

indicated to the respondents that they should no

longer need to be concerned with disciplinary

proceedings relating to their activities at doing Their Honours balanced, and correctly

balanced, that aspect against the very matters of

which complaint is also made by the appellant in

this case.

Walton(2) 60 22/9/92

Without seeking to be exhaustive, they took

into account in that balancing process public

confidence and the interest in the regulation of

the medical profession. Justice Kirby did so

at 794, line 16 to 23, and the Chief Justice, more

directly, at page 781, lines 9 and 10. They took

into account the fact that under the legislation

the major purpose of a disciplinary hearing was the	protection of the public in the sense of ensuring
that the doctors were currently fit to practise.
It is in that context that Their Honours used and
made reference to the punitive - what they regarded as the _punitive element of these proceedings.

The Chief Justice, in fact, used punitive in

two different senses. In the first place, at

page 779 at about line 17, having referred to the

relevant provisions of the Act, he accepted there

was,

a substantial punitive element involved in

proceedings before the Tribunal.

But at page 780 he uses the term in a different

sense, in our submission. At the bottom of 779 he

referred to the fact which had been stressed by
Justice McHugh in Herron v McGregor, that the

treatment had ceased in 1979, and that there was: no evidence or suggestion of any continuing

conduct on the part of the claimants against

which the public requires protection, or which

reflects upon their fitness to practise.

They have been practising without constraint and

without complaint from 1978 to the present day, or

at least Dr Herron has - a limited way -

Dr Gardiner for a period and Dr Gill occasionally.

His Honour went on, at the top of 780:

since that judgment was delivered the facts

protracted Royal Commission. It is difficult about Chelmsford have been ventilated in a	to avoid the conclusion that the character of
the new proceedings is punitive rather than protective. That does not of itself mean that
they should not have been brought.

Patients are entitled to be concerned to be

vindicated.

The public interest in pursuit of disciplinary

proceedings in cases of malpractice is

heightened when a Royal Commission has made

adverse findings as in this case. However the

fact that nothing is presently occurring, or

has recently occurred -

Walton(2) 61 22/9/92

needs to be taken into account.

His Honour, in our submission, is using the

term "punitive" in that passage not by a reference

to the punitive powers of the tribunal, which is the manner in which he uses the term punitive in

the page before, but in the sense that as was the

case before the Court of Appeal in 1986 and as was

the case before the Court of Appeal in 1991, there

was no complaint made in relation to the manner of

practice of these doctors over these large number

of years which indicated that the character of the

proceedings was rather to punish for what they had

done so many years before rather than to protect

the public in relation to their current practice of

medicine.

The same point is made by the President at

page 792, a little bit more explicitly, where he
says, above line 10:

The real explanation for the reworking of the particulars -

that is, in order to avoid what was perceived to be

the effect of Herron v McGregor by deleting

reference to the patients that were the subject of

those complaints -

and the effective revival of the disciplinary

proceedings, despite this Court's earlier

clear orders, appears to be the punishment of
the claimants for what they did so long ago.

In the circumstances, such a revival of the proceedings is unjustifiably oppressive.

It should not be forgotten, in this context,

that Mr Justice Mahoney accepted that the·

inactivity of the complainant and the decision in Herron v McGregor clearly heightened the sense of injustice which could legitimately be felt in

respect of the bringing of the present proceedings.

I give Your Honours the references, at 813 line 19

to 23, and 815 line 23 to 27.

The passage about public confidence in the

administration of justice in Herron v McGregor is	to be found at page 267 just above and below
line B. It was in that context, and further in the context of the findings that the respondents would
sustain significant disadvantage by the delays that
had occurred - and this is to be found at 775 and 790 - that in the balancing process the majority held that there was oppression and that it was so
exceptional, in fact unique, to justify a permanent
stay. We say "unique" advisedly. It would be
difficult, one would have thought, to imagine a

Walton(2) 62 22/9/92

repeat of a case such as the present in terms of

the granting of a permanent stay and then, several

years later, the bringing of proceedings in

relation to what we submit are substantially the

same allegations. That has never happened before;

that is clear from my learned friend's summary.	He
has handed it up.	He did not address himself to

it, but it is difficult to know what one can draw

from that summary, at least as a matter of

principle. Some of the cases, in our submission,

would clearly - I am not suggesting they are

necessarily wrong on their facts but they assert principles which would no longer be sustained in

this Court.

In the case at No 16 on the list, Regina v

Grays JJ, Ex parte Graham - and I know Your Honours have that in a bundle, it is No 16 - may I take

Your Honours to page 1243, just between G and H, Their Lordships said:

Before there can properly be said to be an abuse of the process of the court, there must

be some element of mala fides on the part of

the prosecuting authority.

And this was a pure delay case - I am sorry, that

is not so. It was a case in which a fresh

information was brought after the accused was

initially discharged when the Crown offered no

evidence, although there was a delay element in it,

as appears at page 1244, just above line D. At

page 1247, Their Lordships said, in the middle of

the page, just above E:

It seems to us that in each of the two most recent cases which we have mentioned -

·that is Humphrys and Hllls v Cooper -

there was, in addition to mere delay, an

element of mala fides on the part of the

prosecution sufficient to justify the

description of the renewed committal

proceedings on each occasion as vexatious and
an abuse ••••• certainly there must be some

abuse of the process of the court, some at

least improper and it may be mala fide use of
its procedure, before an order of judicial
review.

Lower down it talks about, just below G, an

"excessive delay":

in the majority of cases excessive delay is
likely to prejudice the prosecution just as

much as ••••• the defence ••••• But we do not

Walton(2) 63 22/9/92

think that this court should create any form of artificial limitation period for criminal

proceedings where it cannot truly be said that
the due process of the criminal courts is

being used improperly to harass a defendant.

We would submit, with respect, that in so far as

that case sought to assert that unless there is

mala fides or improper conduct one cannot have an

abuse of process, it would be contrary to principle

and contrary to authority.

MASON CJ:  Is there any discussion of this exercise of

jurisdiction in the nature of prohibition?

MR TOBIAS: In that case?

MASON CJ:  In that case or in other cases that deal with

problems of this kind.

MR TOBIAS:  Your Honours, I have not gone through these

60-odd cases. I picked out a couple as relating to

mala £idea, in other words, not being pure delay

cases, so I cannot fairly give Your Honour an

answer to that to be frank because .I was not

apprised of the issue.

MASON CJ: No, there is no implied criticism in the

question, Mr Tobias.

MR TOBIAS:  Thank you, Your Honour. In No. 44, which is the

Queensland case of Cooney, (1987) - - -

MASON CJ: What number is that?

MR TOBIAS:  No. 44. I would hate to think that Your Honours

have to read this mass of material. I am just

·trying to pick a couple of cases where the question

of mala £ides has been raised.

MASON CJ i Yes • .

MR TOBIAS, I mean the delay cases are on different cases.

At 264, this was a double set of proceedings, it

was a nolle prosequi entered by the prosecution and

then later another indictment was presented. About

half-way down, Mr Justice Andrews who delivered the
judgment for the court said:

The authorities establish that the principal concern as that there be a fair

trial and whether in the circumstances an

accused person has been prejudiced by reason
of events flowing from the actions of the

prosecuting authority. It is clear enough

that if there has been unconscionable delay

caused either deliberately or inadvertently

Walton(2) 64 22/9/92

the result of which is to prejudice an accused

person in the matter of his having a fair

trial, then the court before whom the

proceedings are brought has a constitutional

jurisdiction to order a stay ..... A major

concern is that once proceedings are brought

in a court it has the power to regulate them

has been some conduct on the part of the	so as to ensure justice. If therefore, there
prosecuting authority which might generally be
regarded as an abuse of process, it would need
to result in prejudice to an accused in his
obtaining a fair trial in order to justify a stay of proceedings.

That statement, we would submit, is too narrow and

inconsistent with Spautz.

BRENNAN J: That was the question I asked you before. I do

not see any passage in Spautz with which it is

inconsistent.

MR TOBIAS:  Because, Your Honour, what is there said is that

in order to be an abuse of process, it must result

in prejudice to an accused in obtaining a fair

trial.

BRENNAN J: Agreed.

MR TOBIAS: Spautz does not say that. Spautz says there are

two bases. One is where you cannot get a fair

trial because of delay of the Jago type, and the

other is even if you can get a fair trial, there is

oppression, at the very least an improper purpose.

We would submit improper purpose was the particular

of Spautz, but in our submission Spautz does not	form of oppression or abuse which was the subject
suggest that that waa the only form of abuse.

BRENNAN J:  If you put at the end of what Justice Andrews

said the words "absent improper purpose", it would

be consistent with Spautz.

MR TOBIAS, At the very least.	BRENNAN- J: Or just be entirely consistent.
MR TOBIAS:  That would be consistent with Spautz, but in our

submission Spautz does not seek to limit abuse of

process to prosecutorial misconduct, to use the

Canadian expression. Unless there is anything else upon which we can assist the Court, we would submit

that the judgmental exercise through which the

majority went in reaching their conclusion is error

free and that the appeal should be dismissed.

Walton(2) 65 22/9/92

BRENNAN J:  I would ask you one further question, Mr Tobias.

It is really a question which I think I put earlier

to Mr Tobin. If one approaches this matter from

the point of view of section 23 of the Act and

regards the jurisdiction as being substantially at	large, must one not then look at the statute,
perceive its purpose and put into the balance
public interest on the one side, and what you have
identified as oppression of the doctors on the
other, leaving any other matters out of account?

MR TOBIAS:  we would not disagree with that, but that is

what we submit the Court of Appeal did. They did

conduct a balancing process. They did make clear

reference to the protective purpose of the

legislation. The view they took - and obviously

different minds can view it differently - was that

the public interest in the circumstances where

there was no suggestion of current unfitness to

practise, a finding, in our submission, that was

not contested below, that in those circumstances -

and it was also a similar finding to what

Justice McHugh had found in 1986 - that putting all

these things into the balance, the oppression as

they had identified it carried the day.

BRENNAN J: Yes, but the problem about that approach perhaps

is that the identification of the public interest

as being limited to prevention of the doctors from

presently practising might be open to some

criticism.

MR TOBIAS: That is the purpose, we would submit. There are

two purposes that have been asserted by the

appellant, one, of course, is to determine whether

or not the doctors are currently fit to practise,

and in one sense, what is done is done. The

question is, the future. The second, as adumbrated

by my learned friend, was vindication. But they

dealt with that as well. I gave Your Honours the

reference, I thought, to the question of

vindication of the victims. Justice Kirby dealt

with it at page 794 line 5, and the Chief Justice

referred to it as well - page 780 line 10. So the

question of vindication was well and truly in their

minds and they took that and put it into the

balance.

Now, as was accepted by Mr Justice Kirby,

different minds will differ on the balancing

process and the weighting of the various factors

but, in our submission, where the court, at first

instance, has carried out that task and has carried
it out, in our submission, absent of any error of

principle, then this Court would not seek to

interfere in that process.

Walton(2) 66 22/9/92

BRENNAN J: Well, the problem you are in - I do not wish to

delay you unduly, but it seems to me that this is a

matter of considerable importance if one adopts the

broad approach to the construction of the fact. If

one is looking for the purpose of this legislation,

must it not be at base that there is an assurance

to the public that gross dereliction of

professional standards will be visited with

investigation and, if need be, exposure and

penalty?

MR TOBIAS:  Not necessarily penalty.

BRENNAN J: Not necessarily, of course, but is that

not - - -

MR TOBIAS:	But not at any cost, Your Honour, with respect.
BRENNAN J:	Oh no, no.  I appreciate that one must put in

your argument the other question of oppression in

the balance, but in endeavouring to identify the

public purpose which the Act says, must it not take

into account what I have just put to you?

MR TOBIAS:  It must be taken into account and we submit it

was taken into account. What Your Honour is really

saying is that if Your Honour was perhaps deciding

it, Your Honour would give it overriding weight.

No doubt some would; some would not. But it does

not involve error of principle, in our submission,

because the majority did not at the end of the day

give it overriding weight. There will be - divide

the population on the issue, one assumes, not

necessarily judges. But what is clear, in our

submission, that all these matters were well and

truly taken into account and weighed in the

balance. If Your Honours please.

MASON CJ: Thank you, Mr Tobias. Yes, Mr Tobin.

MR TOBIN:  If I may take up a point that Mr Tobias has just

made. By a reference on the question of present

fitness to the affidavit of Dr Herron, volume I

page 37, at line 10, the deponent says that he is

informed by the claimant, that is Dr Herron:

that the Claimant in any hearing could have

shown that:

in the cases of individual patients the

(i)    treatment was justified; and/or

(ii)   he had reasonable grounds to believe that

the treatment would be, in the case of

each patient justified.

Over the page, paragraph 44:

Walton(2) 67 22/9/92

The Claimant could also have shown that the

psychiatric condition of each of the patients
specified in the Complaints was either

improved or not affected, by the

administration of deep sleep therapy.

My learned friend directed submissions to the

Attorney-General's Reference (No 1 of 1990) and, in

particular, to the passage at the top of page 19A

which he said was in support of his contentions or

his case. May we submit to Your Honours that the

reference to Mr Justice Brennan's judgment

encapsulates the statement at page 54 of Jago where Mr Justice Brennan said as follows, if I may read a

sentence:

No abuse of process appears merely from delay

on the part of the prosecution, either by

inadvertence or by negligence, in presenting

an indictment. It may be different if the

prosecution were to delay deliberately in

presenting an indictment in order to prevent

an accused from making an effective defence

but, even in such a case, the remedy may lie

not in permanently staying the proceedings but

in bringing them to a conclusion with a

direction which nullifies the effect of the

tactic.

In the present case there is no

suggestion of bad faith.

The Court of Appeal in England, having referred to

Your Honour's reasoning in Jago, which we submit is

encapsulated in what I have just read, went on to
say, at 19A:

In principle, therefore, even where the delay can be said to be unjustifiable, the

imposition of a permanent stay should be the

exception rather than the rule. Still more

rare should be the cases where a stay can

properly be imposed in the absence of any

fault on the part of the complainant or

prosecution.

If we may interpolate, we understand the first

sentence to refer to circumstances where there is

mala fides in the delay, picked up in Your Honour

Justice Brennan's words:

It may be different if the prosecution were to

delay deliberately in presenting an indictment

in order to prevent an accused from making an

effective defence.

Walton(2) 68 22/9/92

With regard to the second sentence in the Court of

Appeal in England:

Still more rare should be the cases where a

stay can properly be imposed in the absence of

any fault on the part of the complainant or

prosecution -

we would interpolate that that should be understood

as referring to delay causing such prejudice that a fair trial is impossible.

In submissions, my learned friend harked back

to the question of special leave as to what was to

be found in Jago among other members of the Court,

and he took the position that Justice Gaudron's

position was close to his. We would submit that,

at page 75 in Jago, where Her Honour quotes

Mr Justice Wilson in Barton, the strength of the

principle which we would submit has now emerged on

an analysis of the cases is to be found.	There she
quotes His Honour as saying:

When ••••• there is "a fundamental defect

which goes to the root of (a criminal) trial,

of such a nature that nothing that a trial

judge can do in the conduct of the trial can

relieve against its unfair consequences", an

accused person is denied that which the law

guarantees, namely, a fair trial according to

law. In such circumstances, it may fairly be

demands that the proceedings be permanently	said that the administration of justice
stayed.

In the case of Davern v Hessell and the double jeopardy issue raised there, we point out, with

respect, to Your Honours that if one takes the view

that McGregor v Herron was decided on wrong

principle, that is presumptive prejudice and the

right to a speedy trial, if that be so, then it

cannot form a dominant and guiding hand for

subsequent proceedings requiring that it be adhered

to notwithstanding on the very heart of the issue

which it decided, the presumed unfairness in

McGregor v Herron turns out on examination later

not to be so and in the present proceedings that

fairness is available.

With respect to the reference to the phrase

"tantamount to persecution", it is to be found at

257 of Mr Justice McHugh's judgment in

McGregor v Herron. He there is picking up the

statement made in a New Brunswick case concerning a
legal practitioner, and we would submit that this
is a form, as His Honour has used it in

McGregor v Herron, of presumptive prejudice, that

Walton(2) 69 22/9/92

is, when he says "tantamount to persecution" he is,

we would submit, to be understood as picking up the

notion contained in the phrase "presumptive

prejudice". As Your Honours please.

MASON CJ: Thank you Mr Tobin. Have you given any thought

to what we should do about receiving written

submissions?

MR TOBIN:	Yes.
MASON CJ:	Now, I did not understand that you wish to lodge

written submissions in support of your belated

submission that there was no jurisdiction - - -

MR TOBIN:  I was spare in my submission. I imagine anything

in writing would also be spare. We are contending

in that revised ground that there is a want of

jurisdiction and we point simply to the statute as

the basis of it. It would be appropriate, we would

submit, if there is anything in the submissions of

Mr Tobias, given the context which I have just put,

for us to be able to put something briefly in

response to what he says. I mean, we have made the

submission, we have made the assertion about the

problem of jurisdiction.

MASON CJ:  So you are not seeking to add to the argument

that you have presented; the spare, lean argument

you have presented us.

MR TOBIN: Yes. However, we would like the opportunity of

putting in issue anything that our learned friend

may wish to canvas in his written submissions.

MASON CJ:  Yes. Mr Tobias, what time do you want?

MR TOBIAS:  Two weeks, Your Honour.

MASON CJ: And a week for you, Mr Tobin in response?

MR TOBINi Yes.

MASON CJ: Very well. Mr Tobias, you will have two weeks

within which to file your submissions on the

question of jurisdiction, and Mr Tobin, seven days

thereafter.

MR TOBIN:  we will do them as soon as we can, Your Honour.

MASON CJ: Yes, I realize that. The Court will consider its

decision in this matter.

AT 3.48 PM THE MATTER WAS ADJOURNED SINE DIE

Walton(2) 70 22/9/92