Walton v Gardiner; Walton v Herron; Walton v Gill

[1992] HCATrans 110

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Sydney No Sl58 of 1991

B e t w e e n -

MERRILYN MARGARET WALTON

Applicant

and

IAN DONALD RUSSELL GARDINER

Respondent

Office of the Registry

Sydney No Sl59 of 1991

B e t w e e n -

MERRILYN MARGARET WALTON

Applicant

and

JOHN TENNANT HERRON

Respondent

Office of the Registry

Sydney No S160 of 1991

B e t w e e n -

Walton 10/4/92

MERRILYN MARGARET WALTON

Applicant

and

JOHN EWAN MACDONALD GILL

Respondent

Applications for special leave
to appeal

MASON CJ TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 APRIL 1992, AT 12.20 PM

Copyright in the High Court of Australia

MR T.K. TOBIN, QC:  I appear with MR M.G. SEXTON, as

Your Honours please. (instructed by the Crown

Solicitor for New South Wales)

MR M.H. TOBIAS, QC: If the Court pleases, I appear with my

learned friend, MR M.I. BOZIC, for the three

respondents, Your Honours. (instructed by Gordon

L. Beard & McDonald), (instructed by Blake Dawson

Waldron) and (instructed by Tress Cocks Maddox)

MR TOBIN:  Your Honours, I must trouble the Court with some

factual background because the case itself is

unusual in its facts but grounds, in our

submission, a good leave point. The factual

background is this, if I can put it

noncontentiously but as the complainant, the

applicant before the Court, sees it.

It involves, during the 1970s, a form of

psychiatric treatment carried on at a private

hospital in Sydney.	Hundreds of patients went
there.	The three respondents were three of the

medical practitioners who carried out treatment of

patients there.

There have been complaints laid during the

1980s regarding the conduct of the three doctors involving the death of three identified patients and the physical injury to a fourth patient. Those

proceedings were stayed in Herron v McGregor. The ground of the stay, which was made by the Court of

Appeal, was that the fairness of the hearing was

jeopardized by unconscionable delay on the part of

the health officials. Special leave was not

granted in this Court.

Walton 2 10/4/92

There followed a royal commission and a

further set of complaints were laid by the present

complainant, the present applicant, in the medical

tribunal with regard to the form of treatment

during the 1970s involving none of the same

patients, the subject-matter of the first

complaints and of the stay, involving issues as to

treatment touching on a hundred other patients.

MASON CJ: But the same treatment.

MR TOBIN:  The same sort of treatment, yes. The same sort

of treatment. And the Court of Appeal again

exercised its supervisory jurisdiction and stayed

the hearing of those complaints. At this time, as

the matter comes before Your Honours, there has
never been a hearing on the merits of the case

involving the doctors.

The case, if I can put it noncontentiously and

perhaps pick up an observation of

Mr Justice Mahoney in the Court of Appeal, involves

a form of treatment and its consequences which, if

made out, would suggest to His Honour's mind that

the doctors ought not to practice in this State

irrespective of the lapse of more than a decade in

time.

As we come to Your Honours on the leave

application, we would submit that - - -

MASON CJ: This was a special form of treatment, was it not?

MR TOBIN: It was an unusual form of treatment.

MASON CJ:  And it is not a form of treatment that is in

usage today?

MR TOBIN: It is not used now and it is, in fact, outlawed.

It is an unlawful form of treatment.

MASON CJ:  How long is it since any of the respondents were

associated with this form of treatment?

MR TOBIN:  1979, Your Honour, would be the last occasion, I

believe.

MASON CJ: Thirteen years ago?

MR TOBIN:  Yes, 13 years. Now, Your Honours, the high noon

of applications of the kind successfully made by

the doctors for abuse of process may perhaps be

stated to be Herron v McGregor, the very case

itself, the case where the Court of Appeal said

because of the delay it would not allow the Health

Department to continue with the complaints.

Walton 3 10/4/92

There are some features of Herron v McGregor

that time has overtaken: Jago's case that this

Court decided more recently, so - - -

MASON CJ: Because Herron v McGregor involved the

proposition that there was a right to a speedy

trial.

MR TOBIN:  Imbedded in it was that proposition and that is

no longer a contentious issue legally in the

courts.

MASON CJ:  None the less, the permanent stay was granted on

the ground of undue delay.

MR TOBIN:  And behind it, we would submit, in Herron v

McGregor, a view that the doctors would suffer

actual prejudice. There are two wings: either
actual prejudice or presumptive prejudice based on

delay.

MASON CJ: It is not actually disputed, is it, that they

would suffer some prejudice by reason of a trial

now?

MR TOBIN:	What is not disputed is that they could get a fair hearing. In the judgments of the Court of
Appeal it was put that you would expect there to be
some prejudice but not sufficient to create an
atmosphere where there would not be a fair hearing.

MASON CJ: So, it is not right to say that a trial at this

stage before the tribunal would involve no

prejudice to them?

MR TOBIN: That is correct. Now, Your Honours, what has

happened then in the intervening period from 1986

to 1992 is that an illogical dilemma to face is

that whereas in 1986 it could be held by the Court
that there would be such prejudice that they could not get a fair hearing on the three deaths and one

patient involved, with the lapse of time and with

the intervention of an exhaustive royal commission,

the Court of Appeal proceeded on the basis that

they could get a fair hearing. So, we come before

the Court with a case where, to begin with, it must

be assumed, on the comments of each of the three

judges, that the respondents who allege abuse of

process are comforted by the fact that they can get

a fair hearing.

A second point is this: there is no issue

that the complaints as laid in the mid-80s and the

complaints now are the same. The Court of Appeal

judgments have accepted that whatever the

substantial overlap, this is not a case of double

jeopardy. When I say that I should qualify it.

Walton 4 10/4/92

His Honour the Chief Justice pointed to substantial overlap but he analysed the technicality of double

jeopardy and concluded that it was not a double

jeopardy case. Mr Justice Mahoney did the same.

The President, Mr Justice Kirby, took a different

view.

So, the judgment before the Court then is to

this effect, Your Honours: what are the grounds

upon which the Court of Appeal may exercise its
supervisory jurisdiction and stay a proceeding of
the nature of disciplinary rather than criminal,

but in that twilight zone between criminal and

civil? What are the bases upon which it may do so

where it accepts that there can be a fair hearing

and is prepared to assume that there will be and

where the intervention of issues such as double

jeopardy does not apply? That is, it is not an

autrefois acquit case.	Those two issues are not
present.	The unfairness is not present as to the
hearing.	The question of autrefois is not present

as to the nature of the complaints.

It would seem, in our respectful submission,

that there is an important issue here for

Your Honours to consider.

MASON CJ:  What is that issue?

MR TOBIN: It is that beyond Jago, beyond the conclusions of

the court as to the limitations on abuse of
process, the Court of Appeal has engrafted what we
take to be a new form of circumstance giving rise

to a successful claim of abuse of process but one

which is not in fact founded on a survey of the

cases.

MASON CJ: What is that? Oppression?

MR TOBIN: It is called oppression but it exists outside

what we take to be the walls of that doctrine,

namely, the fairness of the trial or preliminary

forms of it such as the impropriety or lack of bona

fides of the prosecuting agencies; of agencies like

the complainant in this case.

MASON CJ:  Does not Justice Deane's judgment at least in

Jago provide authority for that view, namely, that

abuse of process will include oppression or that

oppression stands as a ground for the exercise of

the Court's supervisory process?

MR TOBIN:  What we would submit is this, Your Honour, that

the concept of oppression, as His Honour used it
and as His Honour the Chief Justice used it, is not

a concept that can be applied outside either the

recognized criteria laid down in the cases. If one

Walton 10/4/92

does a survey of the cases - and I do not propose

to take Your Honours to this other than in

schematic form. We have done a survey,

Your Honours, of 48 cases, which appear to us to be

leading cases - perhaps if I could hand Your

Honours a chart. Your Honours, the history of this

abuse of process principle since the mid-70s is set

out, at least by a survey of the cases, in this

chart and what is remarkable about it, Your
Honours, is that subject to some doubt as to

whether presumptive prejudice was the real telling point in a couple of decisions, all of these cases define the notion of oppression, identify the

notion of oppression, for example, of the improper

conduct of the prosecuting agency, the type of

case, for example, where the delay is simply a

device to give the prosecutor more time in which to

find evidence to support the information already

laid or, the police getting a person deported from

a foreign country in order to get round the problem
of extradition, thereby, of course, improperly

bringing the accused before the court.

Your Honours, there are no cases where

oppression or, as Your Honour the Chief Justice put

to me, the idea that the accused will suffer some

prejudice but not sufficient to displace a fair

trial, there are no such cases where the

disabilities that will be suffered by the doctors

have grounded, in our submission, a successful
abuse of process point.

What Your Honour has put to me about the

observation of His Honour Mr Justice Deane and, for
that matter, what I said about the Chief Justice's
comments in the Court of Appeal, do not, in our

submission, get to grips with that problem: is

there now, introduced by the Court of Appeal, a new

category to found an abuse of process point based

on - - -

MASON CJ: But does it not stand to reason that the

successive commencement of prosecutions arising out
of similar conduct after one prosecution has been

stayed could amount to an harassment constituting

oppression?

MR TOBIN:  But this is not the case that is made against the

complainant, with respect, Your Honour.	The case
made against the complainant here - - -

MASON CJ: But I am putting this to you on the footing that

the categories cannot be closed.

MR TOBIN:  But in all those cases, Your Honour, what people

in the position of the doctors or an accused must

do is satisfy the court of an element either of

Walton 6 10/4/92

mala fides, on the part of the prosecutor, or

objectively of being denied a fair hearing as a

result of bona fide but impermissible delay. They

are the only two categories, Your Honours, with

respect, that are available at this stage on the

law.

Now, if the law is to be changed, it should

not, with respect, be done by a side wind after the
high noon of Herron v McGregor, after this Court in

Jago has laid down the limits to the abuse of

process principle, that is, with respect to the

right to a speedy trial, and has turned the eye of

the courts to the question of fairness.

TOOHEY J: Could you identify for us the way in which you

suggest that the Court of Appeal has overstepped

the existing restraints?

MR TOBIN: Yes. In accepting the fairness of the hearing,

in not advancing any finding of mala fides on the
part of the prosecuting agencies or the complainant

and in not adopting the view that there is a double

jeopardy in fact involved, those three things, we

would submit, Your Honours, make the inchoate

concept of oppression or necessary prejudice

unavailable to the court in deciding the issue.

May I put it this way: what the court has

said with regard to oppression, and emphasized, is the availability to the medical tribunal to afford fairness in the hearing of this matter especially

in the light of the royal commission which

exhaustively dealt with these questions. That is,

the court itself has accepted that whatever

prejudice - and it may be prejudice of the kind of the old categories that were used before Jago with regard to the feelings of the accused - it is still

satisfied that a fair hearing is possible and what

we submit with respect this Court faces is an

undefined and unrecognized category sufficient to

found an abuse point but which is not available on

a proper reading of the cases, that is, it is a

change in the common law without itself having been

spelled out by Their Honours below.

MASON CJ:  Mr Tobin, could I take you to page 59 which sets

out the passage in the judgment of Justice Deane in

Jago on which reliance seems to have been placed by

the majority? Now, if you look at the sentence

that commences at line 36, His Honour says:

Those five 'heads' provide convenient

reference points for answering the question

whether the effect of a delay in a particular

case is such as to bring about a situation

where any trial will necessarily be an unfair

Walton 10/4/92

one from the accused's point of view or a

situation where the continuation of

proceedings would be so unfairly oppressive

that it would constitute an abuse of process.

Now, because His Honour has put that in the

disjunctive, it is quite clear that His Honour's

concept of "unfair oppression" is something

different from "unfair trial" and, what is more, it

stems, in the instance contemplated, from delay

alone. So, there is no element necessarily of

mala fides in His Honour's statement of the

position.

MR TOBIN:	Your Honour, we would submit, with great respect to what is put, that there always is, on the cases
that decide the issue, a point of mala fides, that is, that His Honour is reflecting upon something that Your Honour the Chief Justice put directly to
me. Certainly, there must be a way of stopping
unfair prosecutions that are obviously designed as
an harassment of the accused, and that is a
non-controversial point. The question here is if
you can have a fair trial, if the prosecution has
acted bona fide, if there is no contest to it on those issues, what is the concept to be imported of oppressive conduct?

We would submit that unless oppressive conduct

is actually linked with the fairness of the trial

or the propriety, the bona fides of the prosecuting

agency, you have here a completely undefinable

discretion as to how the courts might intervene

either in criminal or in disciplinary proceedings

of this kind, that is, the principle involved is

not about medical tribunal matters or professional

conduct, it is a principle that applies, we would

submit, across the board. What Mr Justice Deane,

we would submit., would have in mind is of

circumstances whereby - if I could go to the items

that His Honour identifies there. I am looking at

(ii): the reasons given by the prosecution to

explain the delay; the accused's responsibility for

it; the proven or likely prejudice to the accused

and the question of the public interest.

We would say, Your Honours, that in every case

where there is delay, not causing unfairness to the

prospect of the hearing itself, the courts would

have to accept that there is some prejudice to an

accused, and the real question for the courts is
not to say because there may be some prejudice to

the accused it is necessarily oppressive and the

trial should be stayed, the principle, on the

cases, we submit, is that only if the hearing

cannot be fairly conducted is the Court entitled to

intervene on bona fide conduct of prosecutors in

Walton 8 10/4/92

the absence of the principles of double jeopardy

which we have pointed to.

TOOHEY J:  What is not clear to me, Mr Tobin, and it may be

the quality of the judgments, not of the

submission, is this:  do you say that the Court of

Appeal extended the notions that lead to the

granting of a permanent stay or purported to

operate within the existing law but in some way

misapplied that law?

MR TOBIN:  The launching pad was the question of double jeopardy. I think His Honour the Chief Justice

deals with this. When His Honour goes to the

question of - page 25, Your Honours will see at

line 10, His Honour the Chief Justice said this:

It cannot be said that the present case

falls squarely within any of the settled

particular instances of specific legal rules

informed by the principle against double

jeopardy. There was no hearing on the merits

of the original charges against the claimants.

Indeed the original charges, although similar,

are not identical to, the present charges.

This is not a case where a defence of, or analogous to, autrefois acquit could be

raised.

Nevertheless, so the claimants submit,

the features of unfairness and oppression
which are involved in cases which fall within

the specific rules which have been developed

as instances of the principle against double

jeopardy, and against which the principle is

aimed, are present here also in abundant

extent.

Now, the problem with the judgment, as

His Honour framed it, is that if it is not a form

of double jeopardy, what is the element in either

the conduct of the prosecution or the prospects of

the hearing itself, what is the conduct which can

properly be called oppressive? By the very fact

that both the Chief Justice and Mr Justice Mahoney excluded the second complaint, the 1991 complaints about the doctors as falling within the doctrine of

double jeopardy, leaves the case as one of

oppression, as it is put, without defining, as it

were, the well-spring of the oppression that is

alleged.

MASON CJ:  Does not His Honour indicate the factors that he

regards as constituting oppression at the foot of

29 and 30 where he says:

is finely balanced but .... . Herron v McGregor -

Walton 9 10/4/92

decision -

tips the scales ..... consistency of

adjudication -

but there is more than that.

More important, it seems to me that it would

be oppressive to require the claimants to face

new proceedings, some five years after the

original proceedings against them were stayed.

And "significant prejudice". That is what

His Honour has in mind.

MR TOBIN: Well, Your Honour says "significant prejudice".

Not significant prejudice, in our submission, such

as to touch upon the fairness of the hearing.

MASON CJ: 

No.

MR TOBIN: 

Our criticism is this, which I should put frankly

to the Court: it is not sufficient, in exercising
what, according to the principle in Jago's case, is
an exceptional jurisdiction - supervisory

jurisdiction of the Court - to say simply that if

you can stigmatize conduct as oppressive, it falls

within one of the legal categories. That is, the

mere fact that His Honour has called the conduct

oppressive does not make it that form of

oppression, recognized at law, to entitle the

doctors to a permanent stay of proceedings. And

what concerns my client, if I may put with respect,

is that there is a general principle afoot. There
is a general principle applicable both in

disciplinary and in criminal proceedings that if

stays are to be granted to applicants, there must
be recognized, frankly, that there will be endless

circumstances where delays in bringing matters to

trial are prejudicial, even significantly
prejudicial.

People may be in gaol for longer than they

should be, they may be in a state of anxiety and uncertainty for longer than they should be. The

reality - I think the High Court judgments reflect

it in Jago's case - is that to be charged with a

criminal offence or on a disciplinary matter is a

price not to be regarded fatuously a heavy price

for being part of the community and it is no

pleasure to say that it will entail anguish for

people, innocent or guilty alike. We accept that

as the courts have accepted it in the past.

But at the heart of this issue, we submit to

Your Honours, is the fact that there has been no

Walton 10 10/4/92

scrutiny of this conduct over a decade and three

years - - -

MASON CJ: But whose fault is that?

MR TOBIN: Your Honour, the fault is this: in the Court of

Appeal below my client did not join issue with this

question of delay. The facts speak for themselves.

They are not happy facts. My client, who was in

fact not as an office holder in existence at the

new category of oppressive conduct outside what we

relevant time, would not regard them sanguinely.

submit very forcefully, if I may say, outside the

categories recognized at common law, then judicial

legislation of that kind should be recognized

explicitly and the ground rules established.

I say without criticism to the judgment below

that simply to invoke the formula that it is

oppressive to the doctors, in a forensic
environment where they can have a fair hearing and

in a forensic environment where the complaints now laid against them are not, in the terms of the law, the same complaints or equal complaints, equivalent

complaints under the doctrines of double jeopardy,

there simply is no power for the Court of Appeal to

say, "Nevertheless, the conduct is oppressive,

irrespective of the fact that the doctors", the

respondents here, "advance no case of mala £ides,

irrespective of the fact that they cannot put it

within the categories that are recognized at law.",

if one scrutinized the judgment below.

Perhaps the psychology of it is, how could it

be that in 1992, after a lapse of five more years,

what was in the mid-80s prejudicial to these

doctors is not prejudicial now. That was the

psychological dilemma, if I can put it that way,

which the court had to deal with. And when

His Honour the Chief Justice invoked the issue of

consistency of prior adjudication, we would say
that that was an irrelevant consideration.	The

prior adjudication related to three identifiable

deaths and one identifiable injured patient. The

new complaints have nothing to do with those old

complaints.

MASON CJ: But His Honour made it clear what he meant by

that. His Honour clearly had in mind that the

complaint was in relation to the treatment. The

individuals were merely particularized in terms of

the instances in which the treatment was used.

MR TOBIN: But, Your Honours, here we get into a factual

debate. Our ground of objection is that once the

court parted company with the doctrine of double

Walton 11 10/4/92

jeopardy and its various forms, set out by

His Honour the Chief Justice, it did not have a

basis to say that somehow an undefined species of

this remained as the oppressive element.

TOOHEY J:  You really have to write something else in as

well, do you not? Once it parted with the notion

of double jeopardy and once it parted with the

notion that there was any actual prejudice that

would make it impossible to achieve a fair trial,

then you would say, I take it, there was no

foundation for the granting of a stay.

MR TOBIN: Or, if it is, the question is not resolved by

simply saying it would be oppressive and

prejudicial because that is not a basis, in our

respectful submission, upon which the courts have

ever, in the absence of those other elements,

granted such a stay.

MASON CJ:  Now, I think we are possessed of the case that

you are seeking to present, but can I ask you this

question, Mr Tobin:  was there any discussion of

oppression as an instance of the Court's

jurisdiction to grant a stay in the judgments in

Jago apart from the judgment of Justice Deane?

MR TOBIN:  I do not recollect there to have been any. I

believe there was not any discussion generally of

oppression outside those categories. Do

Your Honours have Jago? I can hand up the - would Your Honours be assisted by at least a copy of the

judgment. I make t~~t assertion that I do not

believe there is suc.1 a discussion of oppression?

MASON CJ:  If you have copies, you might hand them in and we

could look at them over the adjournment, Mr Tobin.

MR TOBIN:	Yes. Well, we will hand those to Your Honour.
MASON CJ:	Now, Mr Tobin, does that conclude what you want

to put to the Court?

MR TOBIN: Yes, it does, Your Honours, yes.

MASON CJ: Thank you. Now, Mr Tobias, do you have an

outline of argument or not?

MR TOBIAS: Yes, Your Honour.

MASON CJ:	We will adjourn now, Mr Tobias, and we will take the opportunity of reading this during the
adjournment. We will resume at 2 o'clock.

AT 12.55 PM LUNCHEON ADJOURNMENT

Walton	12	10/4/92
UPON RESUMING AT 2.00 PM

MASON CJ: Yes, Mr Tobias? We have read the outline of

submissions. We have also read the judgments in

Jago, at least looked at the passages which have been identified, and the passages in Davern v

Messel].

MR TOBIAS:  Your Honours, the proposition for which my

friend contends is that the majority in the Court
of Appeal erred in that they applied, to the facts
of this particular case, an inchoate concept of
oppression thereby creating a category that was

outside the categories of oppression referred to in

previous judgments. He submits, as we understand

it, that, in effect, the categories are closed;

that one has oppression in a case such as the

present either where there is mala fides on the
part of the prosecuting authorities or an inability

to obtain a fair hearing.

TOOHEY J: That is not quite how I understood the argument,

Mr Tobias. I thought it was that the Court of

Appeal expanded the notion of oppressiveness

without, at the same time, giving any real content

to the expansion or any basis upon which it could

be extended beyond the notions of double jeopardy

and inability to obtain a fair trial.

MR TOBIAS:  What Their Honours did, in our respectful

submission, is to, having accepted that there could

be a fair hearing, albeit that significant

prejudice and disadvantage to the respondents - and

one should add, of course, that Justice Kirby did

not decide that issue but assumed it for the

purposes of the argument - they then indicated

that, in relation to the other factors to which
they have referred and, in particular, the effect

of the decision in Herron v McGregor and this

Court's refusal of special leave, that that created

a factor, when balanced against other aspects

including the public interest, created, in effect,
a form of persecution or harassment that they
considered constituted an abuse of process.

Your Honours will recollect from having read

the judgments of the Chief Justice and the
President, that each of them formed the view that
by bringing the proceedings in the circumstances in
question, that that constituted an attempt to

punish as distinct from protect the public which,

in their view, constituted a form of vexation or

oppression.

Walton 13 10/4/92

It cannot be gainsaid, in our submission, that

the categories of oppression cannot be closed,

recognizing, of course, that Jago has laid down and

it has not sought to be denied in this case, that

it is only in exceptional circumstances that the

Court would exercise the power to grant a permanent

stay. The fact that those categories are not

closed was recognized in the passage from Mr

Justice Deane's judgment to which Your Honour the

Chief Justice referred and which is also extracted

in Chief Justice Gleeson's judgment at page 24 of

the application papers.

Your Honour the Chief Justice asked my learned

friend before lunch did any of the other Justices
expand on the issue of oppression in a similar way,

and we have already given Your Honours references

to where we say that to a degree Your Honour
the Chief Justice did, at page 30; to a lesser

degree, Your Honour Mr Justice Toohey but, on the

other hand, also Justice Gaudron, in our

submission, at the top of page 78, made it fairly

clear that there was a general proposition that a

permanent stay would only be granted if:

no other means is available to remedy that

feature which, if unremedied, would render the

proceedings so seriously defective, whether by

reason of unfairness, injustice or otherwise,

as to demand the grant of a permanent stay.

It is clear, in our submission, that Her Honour

considered that the categories of defect, the
categories of oppression, if you like, the

categories of injustice were not in any way closed

and, in particular, extended beyond those for which

the applicant in the present case contends.

MASON CJ: Well, you may be able to add Justice Gaudron to

Justice Deane, but so far as the other references

are concerned in my judgment and that of

Justice Toohey, no content is given to the use of

the word "oppression" in a way that would assist in

the present case.

MR TOBIAS: There is nothing in Your Honour's judgment, with

respect, that does not assist.

MASON CJ:  No, there is nothing that is inconsistent with

what the Court of Appeal have said and that would be true also of Justice Toohey's judgment but you

do not get, in any of the judgments apart from

perhaps that of Justice Gaudron, a spelling out of

what is involved as a concept.

MR TOBIAS: Well, it is a difficult concept. One has the

concept of an injustice amounting to an abuse of

Walton 14 10/4/92

case referred to by Your Honour at page 30, and

process as adumbrated in the passage in

Your Honour then went on to indicate in about the

middle of page 30:

In this sense, fairness to the accused is not

the sole criterion when a court decides

whether a criminal trial should proceed.

And at page 33 in the last paragraph, Your Honour

said that, in effect:

The factors which need to be taken into

account ..... cannot be precisely defined in a

way which will cover every case.

What the Court was saying, and in our

respectful submission it is implicit in Your Honour

the Chief Justice's judgment, is that there is a

concept of oppression, but whether or not in any

particular case the factors that contribute to that

oppression will be sufficient to justify a

permanent stay will vary from case to case, of

which, no doubt, mala fides, in the bringing of the

prosecution, the ability to obtain a fair trial,

are but examples.

In the present case, Justices Gleeson and

Kirby did not suggest that this was a double

jeopardy case strictly so called in the autrefois

acquit sense, but that it was a form or species of

double jeopardy in the sense that it fell within

the policy of the law that lies behind that particular legal principle as adumbrated by

Justice Black in the US Supreme Court in the

passage cited in Justice Kirby's judgment and

repeated on a number of occasions in Davern v

Messell.

Further to that, of course, Justice McHugh, in

Herron v McGregor itself made reference and decided
that case upon the basis of oppression.	I think
Your Honours have the judgment there.

MASON CJ: Yes, we do.

MR TOBIAS: Particularly in the passage at 256F and at 267A

to B. There is nothing, in our submission, in the

authorities that suggests that the unique

circumstances of this case associated with the

consequences of the decision in Herron v McGregor

in 1986 is not a proper factor to be taken into

account in determining, in accordance with the

principle of avoiding oppression or vexation,

simply because it does not meet the strict

requirements of that particular legal principle.

Walton 15 10/4/92

His Honour the Chief Justice made fairly clear

at page 26 of the application papers the matters

that he took into account on this issue, starting

at line 9:

The combination of the time that has elapsed,

by virtue of unreasonable delay on the part of
the Department, between the time of the
conduct in question and the time of the laying
of the new charges, with its consequent

prejudice, and of the fact that the new

charges are closely related to charges that

this Court ordered should not be proceeded

with, and that the claimants were therefore

entitled to regard as behind them, gives rise

to a powerful argument that what is now

attempted by the Department is oppressive. In

Herron v McGregor McHugh JA described the

original proceedings as "tantamount to

persecution" .

And in two other passages, one at page 28, line 5,

where His Honour said:

It is difficult to avoid the conclusion that

the character of the new proceedings is

punitive rather than protective.

And a similar passage in the judgment of the

President at page 40, line 10, makes it clear, in

our submission, that Their Honours were simply

applying established principle to the particular

and rather exceptional circumstances of this

particular case, and that they were not seeking to

go outside the general principle of "oppression"

which was, in our submission, sufficiently defined

in the judgments in Jago in order to set the

limits, if there be limits, to the circumstances in

which oppression can give rise to a permanent stay.

In our respectful submission, the Court in

Jago were at pains to make clear that it was not

going, in effect, to limit categories of oppression

and what my learned friend seeks to do is to

persuade this Court that leave should be granted so

as to enable him to advance that proposition. We

would respectfully submit that such a proposition

is inconsistent with all the judgments in Jago,

except perhaps that of Justice Brennan, and that in

those circumstances this Court would not see fit to

redefine that which, in our submission, has already
been adequately redefined and limited in Jago to

the exceptional case.

Your Honour the Chief Justice indicated, of

course, and made reference to the fact that there was a reference in the judgments to the fact that

Walton 16 10/4/92

these doctors had not been the subject of any

conduct since 1978 in respect of which they could

proceedings, it is their current fitness to practice which was now at issue. Although	be criticized, yet, in terms of disciplinary that if they were found guilty of the conduct which
is now alleged against them in respect of the years
prior to 1978, that may indicated present unfitness, it is pertinent to note that not only in
the Court of Appeal in Herron v McGregor but also
in two judgments here, the view was taken, which in
our submission must be correct, that that fact is a
powerful fact and a fact that gave rise to the conclusion that the majority came to in this case
that what was now being sought to be done, bearing
in mind the peculiar history of this case, was, in
effect, as Justice McHugh said, "tantamount to a
form of persecution."

It is in that sense, whether one calls it

double jeopardy or one looks at it as the principle

behind or the public policy behind the principle of

double jeopardy, that was a principle which, in our submission, was advanced and accepted by this Court

in Jago and no basis exists, in our submission, for

seeking to re-examine it.	Those are our
submissions, Your Honours.

MASON CJ: Yes, thank you, Mr Tobias. Mr Tobin, what do you

say about Mr Tobias' contention that having regard

to the passage at page 26 in the Chief Justice's

judgment, the end of the central paragraph, and the

passage at page 28, the sentence commencing on

line 4, that the Chief Justice concluded that this

is oppressive because there is an element of persecution, and a punitive element in this?

MR TOBIN: There is a great confusion of thinking, we would

submit, with the greatest respect.

MASON CJ:  On whose part?

MR TOBIN:  On Mr Tobias' part and on the court's part. That

is why, with the greatest of respect, it was

referred to, Your Honour. What Mr Tobias did not

pick up was the balance of the Chief Justice's
statement:

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

Walton 17 10/4/92

Department of Health has a duty to the

public ..... 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 -

and then he balances to say:

nothing is presently occurring ..... in respect
of which the public need protection -

Now, I must say, with respect to my learned

friend, that it is one of our contentions on the
draft notice of appeal that in applying the
appropriate categories of public interest in a
professional misconduct context, as the
Chief Justice intimates, there may be a legitimate

punitive element. The jurisdiction is exercised

protectively but what we take His Honour to be

saying is this: there is a public interest in
vindicating the administration of the profession;

there is a public interest in confidence in the

medical profession and the standards of performance

in the medical profession.

After all, this is a case about a form of therapy involving, allegedly, very serious damage

to countless numbers of private hospital patients.

So, to answer Your Honour the Chief Justice, as

Mr Justice Gleeson said, the mere appearance of a

punitive element does not of itself lead to any

conclusion one way or the other. I should say that

before the Court of Appeal this case was not

conducted on the basis that what the Department of

Health was doing or what the complainant was doing

was a mala fide persecution of the doctors. That
was not the case that was being put and if that

case is not put, what His Honour the Chief Justice

says needs, with respect, to be interpreted.

We would submit the interpretation is that at

the end of the day a department would be justified

in acting out of a motive of punishment, and that

that issue was not decided but it was one of the

issues to weigh up in the balance. But what we

attack in the judgment is not that part of the

balancing exercise, what we attack, with great

respect, is the failure, as we have submitted, for

the court to have explained the criteria upon which

an expansion in the jurisdiction is made,

apparently outside the scope of what this Court

laid down in Jago - - -

MASON CJ: Yes. I am not sure, Mr Tobin, that what you say

in response to Mr Tobias' submission is entirely

right because if you look at the scheme of the

Walton 18 10/4/92

Chief Justice's judgment and go back to page 25,

particularly the paragraph that commences towards

the foot of that page, His Honour is, as it were,

reviewing the factors on one side of the balance

sheet, and on that page and the next page he refers

to the way in which the previous proceedings had

been characterized and he refers to the fact that

they had:

been characterized ..... as "appalling and

without justification" -

and he goes on to say there is a contention that

the respondents have been:

subjected to the kind of vexation and

oppression by the State which has so often

been declared to be repugnant to the law.

So, he appears to be taking into account, on one side, a notion of oppression which involves

wrongful conduct on the part of the State.

MR TOBIN:  What has happened, we would submit, is this:

that the term "punitive" has been introduced as a

way of distinguishing the protective jurisdiction,

that is, there is a verbal slide, if I can use that
term, where the distinction between "punitive" and

"protective" exercises of the jurisdiction is made.

That is the first point.

The second point is, where the reference is to

"punitive", that is, to what may, as His Honour
said, be a legitimate exercise by the State of a

vindication to the public of the appropriate

standards of medicine, where that has happened, as

His Honour the Chief Justice said, the mere

punitive element does not decide the issue at all.

The difficulty is, Your Honours, that the word

"oppressive" has been introduced. The case has not

been run on the basis of mala £ides by my client,

or of an absence of good faith, and a logical slide

has occurred between vindicating the public

interest by a final decision to the public with

regard to treatment carried out by the doctors on
the one hand, and the view that the delay was
oppressive, albeit in the absence of damage to the

fairness of the hearing.

So, Your Honours, we would submit that the

real problem with the judgment is not resolved in

the way my learned friend has put to the Court

because it still leaves out what is the nature of

the oppressive conduct, "oppression" being simply

substituted for the word "punitive".

Walton 19 10/4/92

If I may conclude with this observation: what

is appalling was the delay. The bringing of the

complaints was not appalling, it was the delay. In

the analysis of what the court said, and what my

client or her predecessors in title must carry the

burden of, is a very stringent criticism of that

delay. But the delay, which was appalling, has

never, in my understanding of this litigation,

overflowed into an allegation that the conduct of

the officials was mala fide in the sense that
persecution, punitive and oppressive would suggest

in the judgment.

If I might conclude the question that

Your Honour the Chief Justice put to me before

lunch. I simply note with regard to the general

background in Jago's case that the passages from

Justice Gaudron are made in the context of the

artillery available to a trial judge to ensure

fairness of a trial. That is at page 77, the

paragraph beginning at the bottom:

Another feature attending criminal

proceedings and relevant to the grant of a

permanent stay thereof is that a trial judge,

by reason of the duty to ensure the fairness

of a trial, has a number of discretionary

powers which may be exercised in the course of

a trial -

and Her Honour goes on to list a number of them,

and then she says, in the passage referred to by my

learned friend, at the top of page 78, on the third

line:

and should only grant a permanent stay if

satisfied that no other means is available to

remedy that feature which, if unremedied, would render the proceedings so seriously

defective ..... as to demand the. grant of a

permanent stay.

And I raise that in conclusion, Your Honours, for

this reason: the Court of Appeal has left open in

its judgments not just the fairness of the hearing

but the availability of powers within the medical

tribunal to cure any such unfairness of the kind

that Her Honour was referring to.

MASON CJ: Yes, we appreciate that.

MR TOBIN: Yes, thank you.

MASON CJ: Thank you, Mr Tobin. There will be a grant of

special leave to appeal in this case.

AT 2.24 PM THE MATTER WAS ADJOURNED SINE DIE

Walton 20 10/4/92