Woolcock Street Investments Pty Ltd v CDG Pty Ltd & Anor

[2003] HCATrans 771

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S15 of 2003

B e t w e e n -

DR RICHARD GORMAN

Applicant

and

HEALTH CARE COMPLAINTS COMMISSIONER

First Respondent

MEDICAL TRIBUNAL OF NEW SOUTH WALES

Second Respondent

Application for interlocutory orders

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 10 JUNE 2003, AT 9.34 AM

Copyright in the High Court of Australia

DR R.F. GORMAN appeared in person.

MR T.J. GOLDING:   I appear for the first respondent, if it please your Honour.  (instructed by Health Care Complaints Commission)

HIS HONOUR:   The Court holds a certificate from the Deputy Registrar that he has been informed by the solicitor for the second respondent, the Medical Tribunal of New South Wales, that it will submit to any order the Court may make except as to costs but will not be appearing this morning.  Yes, Dr Gorman.

DR GORMAN:   Your Honour, I wonder if I could just – a memorandum of the documents that I might need to call on from the Court file.

HIS HONOUR:   Well, I have the Court file.

DR GORMAN:   Okay, your Honour.  There are other documents and those are the ones that I would be relating to.

HIS HONOUR:   Yes.  What is the nature of this morning’s application?

DR GORMAN:   The nature of this morning’s application stems from an appeal I have made to the High Court.

HIS HONOUR:   Well, you have not made an appeal.  You have made an application for special leave.

DR GORMAN:   I have sought special leave to appeal, your Honour.

HIS HONOUR:   Yes.  That has not been heard yet.

DR GORMAN:   No, that is right.

HIS HONOUR:   Yes.

DR GORMAN:   And in this special leave to appeal there are two matters – three matters really.  First, I had an unsatisfactory medical conduct, professional conduct, which was not removed by the Court of Appeal and a reprimand which was not removed by the Court of Appeal, although the Court of Appeal did change the conditions that were placed on my licence to practise by the Medical Tribunal in a decision that came down on 6 February.

HIS HONOUR:   Now, what we have this morning is your summons, is it not?

DR GORMAN:   That is correct, your Honour.

HIS HONOUR:   A summons you filed on 17 April?

DR GORMAN:   That is correct, your Honour.  In this summons, your Honour, I wish to make sure that the notice of a constitutional matter which I brought forward and filed is heard, because there does seem to be some danger that it will not be heard because it is locked to getting special leave to appeal.

HIS HONOUR:   That is right.

DR GORMAN:   That would be – I have the returns from the Attorneys‑General from my serving them with the notice of the constitutional matter and all of them ‑ ‑ ‑

HIS HONOUR:   Just let me find your notice.  Do you have a copy, Dr Gorman?

DR GORMAN:   I am afraid I have not, your Honour.  I just brought the things relevant to today.

MR GOLDING:   Is this the notice of the constitutional matter?

DR GORMAN:   I am sorry.

HIS HONOUR:   Yes.  I have just mislaid the Court’s copy.  Thank you, Mr Golding.  Yes, I have it, Dr Gorman.

DR GORMAN:   Okay, thank you, your Honour.  Well, as is according to instructions, I have served all the Attorneys‑General and they all came back and said, “We don’t wish to intervene at this time but we may wish to intervene, or might wish to intervene, if your special leave to appeal is granted”.

HIS HONOUR:   Now, what is the constitutional matter?  I am looking at the notice.  I may be wrong about this, but it seems to depend upon a view, if you would go to 3.5 on page 2 – do you have your copy there?

DR GORMAN:   Yes, that is right, your Honour.  That is ‑ ‑ ‑

HIS HONOUR:   3.5(b).

DR GORMAN:   That is the key one, your Honour.

HIS HONOUR:   Yes.

DR GORMAN:   There is another one as well.

HIS HONOUR:   Now, the problem at a basic level is that if you go back to 3.3 ‑ ‑ ‑

DR GORMAN:   Yes, your Honour.

HIS HONOUR:  

‑ ‑ ‑ divorce and matrimonial causes; and in relation thereto ‑ ‑ ‑

DR GORMAN:   That is right, your Honour.

HIS HONOUR:  

‑ ‑ ‑ parental rights, and custody and guardianship of infants. 

Now, the powers in section 51 which are given to Federal Parliament are not given to it exclusively.

DR GORMAN:   I understand that, your Honour.

HIS HONOUR:   So there is nothing to stop the States legislating on matters relating to children.  The question does not arise in the way you would have it arise.

DR GORMAN:   I think, your Honour, most as regards the States’ powers relate to welfare and ‑ ‑ ‑

HIS HONOUR:   That is right.

DR GORMAN:   ‑ ‑ ‑ this is not really a matter relating – I mean, it relates to welfare but it relates to – there is no illness in these children at the time, as it were, and this decision for the ‑ ‑ ‑

HIS HONOUR:   I follow all of that.  All I am inviting you to consider, Dr Gorman – and I cannot offer you too much advice – is that you have to think about this again because what you would have to find would be some federal law dealing with this matter and then some attempt to give that jurisdiction, which would be federal jurisdiction because it will be a matter under a federal law, an actual federal law.  There would be an attempt to give that to a non‑court, namely this Tribunal.  I think you should think about that.

The second, if I can just draw your attention to what was said by Justice Toohey in a case called Re Finlayson (1997) 72 ALJR 73 at 74, he says:

In terms of s 78B, a cause does not “involve” a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical. But it must be established that the challenge does involve a matter arising under the Constitution. The applicant’s argument –

and he is talking about Finlayson –

is based on a misunderstanding of the structure of the Family Court.

And I think there is a similar problem here.  That is point No 1.  Point No 2 is that until there is a grant of special leave there are no disputed proceedings in the Court and nothing to which this notice can attach, if you follow me.

DR GORMAN:   Your Honour, that is the problem that ‑ ‑ ‑

HIS HONOUR:   And that was said by the Court in Collins v The Queen 133 CLR 120 at 122. So the upshot of all of that is you can raise this, if you wish still to do so, on the hearing of the leave application, but it cannot be determined in advance of the leave application, and that is the position.

DR GORMAN:   Yes.  If I could just speak, your Honour.

HIS HONOUR:   Yes.

DR GORMAN:   That is manifestly unfair to me.

HIS HONOUR:   It may be, but that is the law.  I really do encourage you to go away and think quietly about what I have been saying about the substance of the constitutional matter.

DR GORMAN:   I have been thinking about that in the time since I put it forward, your Honour, and I understand it is the – the States certainly deal with welfare.  The DOCS department certainly take children away from parents and they certainly have rights, but it appears to me that the Medical Tribunal does not have that right, and that is the constitutional matter that is before us.

HIS HONOUR:   No, that is not the constitutional matter really, as I understand it.

DR GORMAN:   As I understand it, it is, your Honour.

HIS HONOUR:   Well, it is not what you are saying in 3.5(b).  Did the Medical Tribunal vest itself with federal jurisdiction.?

DR GORMAN:   That is right.  Did the Medical Tribunal – does it have the authority, even from the States, to make decisions about children that they cannot have a particular sort of treatment without any reference to what the treatment in the child’s ‑ ‑ ‑

HIS HONOUR:   You can put all these matters on the special leave hearing.  I cannot see how you are prejudiced by that.

DR GORMAN:   Well, I can put all of them on, your Honour, but ‑ ‑ ‑

HIS HONOUR:   Many other litigants do, Dr Gorman.  You are not the only one with a notice of constitutional matter that is brought up in a special leave application.

DR GORMAN:   I understand that.  I understand that.

HIS HONOUR:   This is the way things work.

DR GORMAN:   I can understand that.  All I understand is that unless they in the special leave – I mean, I do not mind when it is heard, your Honour.  I do not particularly want it to be heard early.  I am very happy to be heard in the special leave to appeal application.  Like you say, it saves a lot of fuss of having to convene the Court twice and all sorts of things.

HIS HONOUR:   And costs.

DR GORMAN:   But the problem is that if they disregard the constitutional matter and just deal with the special leave to appeal, as well may be convenient, because this is a really serious matter.  There are millions of people being hurt by this suppression of this information and I am alleging that there is corruption in the Medical Tribunal and, you know, if it is just left and the condition goes on – but I will take your advice, I will do whatever you say is necessary.

HIS HONOUR:   Well, I am not trying to give you advice.  I am just trying to alert you to the situation really.  Is there anything you want to say, Mr Golding?

MR GOLDING:   No, your Honour.  Perhaps I should remind Dr Gorman that – I understand he is actually relying on an amended summons which I do not know that it has been brought to your attention yet, your Honour.

HIS HONOUR:   No.  I have a summons ‑ ‑ ‑

MR GOLDING:   He seems to have overlooked that.

HIS HONOUR:   I have a summons filed 17 April.

DR GORMAN:   The amended one has not been filed, your Honour.  It was returned to me from the Registry.  That is the second point we do need to discuss today, your Honour, the question of the subpoenas.  I wish to subpoena documents from the Medical Board of Victoria ‑ ‑ ‑

HIS HONOUR:   No, the High Court does not in these matters entertain fresh evidence.

DR GORMAN:   No, it is not fresh evidence.

HIS HONOUR:   It is not evidence that was before the court below.

DR GORMAN:   But we have three actions, your Honour.  We have the first action today, which obviously I appear to have lost.  We have the second action, which is I have to convince the Court that it is appropriate for the leave to appeal to be given to me.  Now, that is a different matter than the leave to appeal.  Certainly there was no new evidence to come in on the appeal, but for the special leave to appeal, your Honour, I have to convince the Court, and there are two matters that I am saying in the notice of a constitutional matter.  First of all, that the Medical Tribunal did not have the authority to be making decisions that were the proper right or proper place of the parent or the guardian and, secondly, that the decisions that it made crossed boundaries.  They crossed the boundaries from New South Wales, where the decision was made, and they made problems in other States.

Now, the Constitution is very clear that the matters to deal with the whole of Australia are federal and this is a federal matter and the evidence would be that as soon as I demonstrated something on the 60 Minutes program in 1986 I was taken up, or the matter was taken up very strongly by the Chiropractors Association of Western Australia. They took a $5,000 ad, a whole‑page ad, in the local newspaper to say that they dissociated themselves from me and then in a follow‑up – in the same time as the Medical Board of New South Wales took me on, the Medical Board of Victoria took me on and they – so what I am saying ‑ ‑ ‑

HIS HONOUR:   Yes.  Now, you have a number of subpoenas you want to issue, have you?

DR GORMAN:   Yes.  I just want to get information from the Chiropractors Association, put it forward to the Court to say, “Well, we thought this was a matter that affected us”, and therefore it went across State boundaries, therefore it was a federal matter, and the same from the Medical Board of Victoria.

HIS HONOUR:   It does not have to be a federal matter for this Court to give special leave.  We give special leave to a lot of cases that are purely State matters.

DR GORMAN:   Yes, but this is another reason why you would give special leave, because it affects everybody in Australia.  For that matter, it affects everybody in the world.

HIS HONOUR:   Yes.  Well, have you been refused leave to issue these subpoenas?

DR GORMAN:   Well, according to the book, I thought I had to get the Court’s permission to issue subpoenas, your Honour.

HIS HONOUR:   Where are the draft subpoenas?  Do you have them there?

DR GORMAN:   Yes, they are on the – one is on the affidavit which – on the notice – sorry, on the summons, your Honour, and the second one is ‑ ‑ ‑

HIS HONOUR:   Have you sought to have these issued by the Registry?

DR GORMAN:   No, your Honour.  I thought it was a matter for the Court, your Honour.

HIS HONOUR:   What rule?

DR GORMAN:   What rule of ‑ ‑ ‑

HIS HONOUR:   What rule of Court?

DR GORMAN:   Requires the Court to do it?  I do not know, your Honour.

HIS HONOUR:   Well, I think you had better consider that matter as well and if you wish to further press that matter you can obtain that leave with proper reference to the Rules and so on, but I am not going to deal with it this morning.  Now, is there anything else?

DR GORMAN:   No, that is about it.  Am I to understand, your Honour, that the Registrar could sign the subpoena?

HIS HONOUR:   Well, I am not here to give you advice about that, I am really not.  Now, you discuss it with the Registry and if there is any further trouble there may be some need of further process.  I just do not know at the moment.  But I urge you again that the issue of subpoenas in relation to a special leave application is a very unusual course in my experience.

DR GORMAN:   Your Honour, millions of people around the world have been damaged.

HIS HONOUR:   You will not prove that by any subpoena.

DR GORMAN:   That all goes back to the special leave to appeal.  If I do not get the special leave to appeal and this matter goes on, festers on for another 20 years the way it has ‑ ‑ ‑

HIS HONOUR:   Well, that may be so but ‑ ‑ ‑

DR GORMAN:   That is in my ‑ ‑ ‑

HIS HONOUR:   Now, what I propose to do this morning is to make no order on the summons and make costs of the summons filed 17 April costs in the special leave application.  Is that suitable?

MR GOLDING:   If the Court pleases.

HIS HONOUR:   That is what I will do, Dr Gorman.  Now, you understand the position of the constitutional notice, which is the important thing for you to understand?

DR GORMAN:   I understand what you are saying, your Honour.  I note from the Wakim judgment of the High Court that there was an arrangement between the Federal Government and the State Governments that was working very satisfactorily and yet it was unconstitutional, so that just because everything works very well at the moment does not mean that the matter should not be discussed, thought about, ruled on by the High Court.  Thank you.

HIS HONOUR:   Yes.

MR GOLDING:   Your Honour, just so that the papers are in fact up to date, I am not sure that Dr Gorman can do this – does your Honour have a copy of the amended summons?

HIS HONOUR:   No, I have not.  It has not been filed.  So why should I deal with it?

MR GOLDING:   …..do that.

DR GORMAN:   …..yes, thanks.

HIS HONOUR:   Hand it up if you would.

DR GORMAN:   That is only different from the initial summons, your Honour, in that I am asking for the subpoena from the West Australian Chiropractors Association.

HIS HONOUR:   I see.  Well, the application can be filed in Court but it will have to be dated.  I make the orders indicated in respect of the summons of 17 April in relation to the summons filed in Court this morning.

AT 9.53 AM THE MATTER WAS CONCLUDED