XD v Johnson

[2002] VSC 329

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8680 of 2001 and
No. 8681 of 2001

XD	Plaintiff
v
Mr W F Johnson, Dr P D Molloy and Mr P B Hardham (a panel of the Medical Practitioners Board of Victoria appointed pursuant to s. 46 of the Medical Practice Act 1994)	First Defendants
Medical Practitioners Board of Victoria	Second Defendant

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JUDGE:	Bongiorno J.
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 April 2002
DATE OF JUDGMENT:	14 August 2002
CASE MAY BE CITED AS:	XD v Medical Practitioners Board
MEDIUM NEUTRAL CITATION:	[2002] VSC 329	First revision 30 September 2003

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Administrative law – Judicial review of ruling by a panel of the Medical Practitioners Board- Power of the panel to stay its own hearing for on the ground of abuse of process – Procedural fairness – s.49 s.50 Medical Practice Act 1994

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.H.L. Forrest, Q.C. with Mr. M. D. Wilson	J. W. Ball & Sons
For the Defendants	Mr M. Dreyfus, Q.C. with Ms J. Dixon	Victorian Government Solicitor

HIS HONOUR:

1. XD is a medical practitioner registered pursuant to the Medical Practice Act 1994.  In about May 2001, he was served with a draft[1] of a Notice of Formal Hearing into his professional conduct pursuant to s. 46 of the Act. The notice foreshadowed allegations of impropriety against XD in relation to two female patients, Ms A and Ms B. The allegations against XD in respect of Ms A involved conduct which is alleged to have occurred between 1 July 1978 and 31 December 1981. The impropriety with Ms B is alleged to have occurred on or about 11 June 1993.

   [1]Although the notice was entitled "Draft Notice of Formal Hearing", all parties to this litigation agree that it constituted, for present purposes at least, notice of a formal hearing as required by s. 48 Medical Practice Act 1994.

1. On 27 July, 6 August and 13 August 2001, a panel of the Medical Practitioners Board of Victoria ("the Panel"), appointed by the Board pursuant to s. 46 of the Act, heard submissions from XD's counsel on an application to stay the hearing of the allegations in respect of Ms A contained in paragraphs A(1), (2) and (3) of the draft notice. That application required the acceptance by the Panel of a preliminary submission to the effect that it had jurisdiction to consider and determine whether the reference to it by the Board of some of the allegations against XD by Ms A was an abuse of process, entitling XD to have the formal hearing into those allegations permanently stayed. XD's case as to those allegations giving rise to an abuse of process relate to the age of the alleged events giving rise to the charges and their vagueness.

1. On 23 October 2001, the Panel ruled on XD's preliminary submission, as well as on an application to sever the allegations made by Ms A from those made by Ms B, and an application for suppression of XD's name.  In respect of the question of jurisdiction to stay proceedings, the Panel said that it was "… not prepared to determine …" that it had the power to stay these proceedings as an abuse of process.  All parties before this Court were content to treat this statement as a ruling by the Panel that it did not have the power to stay proceedings before it on the ground of abuse of process.

1. On 11 December 2001, XD issued two proceedings in this Court: an originating motion seeking judicial review of the Panel's ruling as to abuse of process and its ruling as to severance of the allegations made against him by each complainant, and a writ seeking declaratory and injunctive relief in respect of certain of the allegations made against him in the original draft notice and in proposed amendments to that notice.  As all of the relief sought by XD could have been properly sought in the judicial review proceeding commenced by originating motion, the proceeding commenced by writ is otiose.  However, as I am at present concerned only with the jurisdictional question as to whether the Panel had the capacity to stay proceedings before it as an abuse of process raised by the originating motion proceeding, I need not, at this stage at least, concern myself with the writ.

1. Prior to the two proceedings coming on for trial on 29 April 2002, the defendants to the originating motion sought an order, by summons returnable before a Master, that a preliminary question as to the jurisdiction of the Panel to stay a proceeding before it as an abuse of process be determined pursuant to Rule 47.04 of the Supreme Court Rules.  The Master referred this application to the trial judge.

1. Accordingly, before the Court on 29 April 2002 were the trial of the originating motion proceeding, the trial of the proceeding commenced by writ and an application by summons in the originating motion proceeding to determine a preliminary question pursuant to Rule 47.04.  The summons was itself amended by leave granted at the hearing so that the question sought to be agitated was finally expressed in the following terms:

"Did the Panel appointed by the Board pursuant to Division 3 of the Medical Practice Act 1994 to hear the allegations against the plaintiff have power to stay the formal hearing being conducted by it on the ground of abuse of process?"

1. After hearing argument on the question of the Panel's jurisdiction and on the procedural question as to whether I should grant the defendants' application to decide that jurisdictional question as a preliminary issue pursuant to Rule 47.04, I reserved both questions for further consideration.  Having regard to the conclusion which I have reached as to the substantive question of jurisdiction, there seems to be no utility in acceding to the defendants' application.  Courts have always been wary of the problems encountered in seeking to define preliminary issues adequately in terms such that the answer to those questions really determines all or part of a piece of pending litigation.  As in this case there now appears to be no point in seeking to use the procedure urged upon the Court by the defendant, I decline to do so.  In due course I shall dismiss the defendants' summons.

The Substantive Question

1. In order to consider the question of the jurisdiction of a panel of the Medical Practitioners Board of Victoria appointed to conduct a formal hearing into allegations of misconduct against a practitioner to stay such hearing, it is appropriate to analyse the nature of such a panel and the nature of the functions it is required by law to perform once it has been appointed by the Board.

1. A panel is appointed pursuant to s. 46 Medical Practitioners Act 1994.  By s. 47 it must consist of at least three persons who must normally be members of the Board.  It has no independence from the Board and its members (if they are Board members) are entitled to be privy to the Board's deliberations on all matters which come before it.  The only restriction on any Board member being a member of a panel is that imposed by s. 47(3) of the Act to the effect that a person must not be appointed to a panel if he or she has undertaken a preliminary investigation of the matter the subject of a panel hearing or has been a member of a panel which has held an informal hearing into a matter the subject of a panel hearing.

1. By s. 54(2) of the Act a determination of a panel has effect as if it were a determination of the Board.  Whereas the Medical Practitioners Act 1970 (which the current Act replaced) committed the power to conduct formal hearings into the conduct of medical practitioners to the Medical Board of Victoria itself[2], this Act commits the same function to a panel appointed by the Medical Practitioners Board of Victoria as the governing corporate entity of the Victorian medical profession established by the 1994 Act. For all practical purposes a panel appointed pursuant to s. 46(d) of the Act is a statutory sub-committee of the Board. The obvious tension between this position and the requirement that a panel observe the rules of natural justice[3] in conducting a formal hearing must be resolved by construing those rules, in this instance, so as to permit members of the corporate body, which refers the complaint to a panel, to sit on the panel which determines the complaint.  Such is the clear Parliamentary intention.

   [2]S. 17(5) Medical Practitioners Act 1970.

   [3]s. 52(d) Medical Practice Act 1994.

1. A panel is clearly not a court, but it is a tribunal within the meaning of the Administrative Law Act 1978 and its decisions are decisions within the meaning of that Act. It and they are thus subject to the supervision of this Court by way of orders in the nature of prerogative relief and other administrative law remedies, whether under the Administrative Law Act 1978 or generally at common law.

1. The primary function of a panel conducting a formal hearing is set out in s. 49(a) of the Act. It must hear and determine the matter before it. If it makes the findings set out in s. 50(1) it may make the determinations provided for in s. 50(2). In doing so it acts protectively in the public interest.

1. Section 50(1) of the Act appears to envisage three possible findings by a panel. But the sub-section is facultative rather than mandatory so that a panel could not be precluded from coming to a conclusion that it was unable to make any of the findings envisaged by the sub-section. This might occur, for example, where a panel was unable to be satisfied to the requisite standard that a charge of unprofessional conduct had been made out, but was not prepared to find that the practitioner had not engaged in unprofessional conduct. The inclusion of s. 50(1) in the Act introduces, apparently for the first time[4], the prospect of exoneration as being one of a panel's possible findings.

   [4]Nothing similar appears in the 1970 Act.

1. The form of s. 50(1) and the findings it provides for, particularly in sub-section (1)(c), strongly suggests that the task engaged in by the tribunal in hearing a matter is investigative. There is no analogue in a criminal trial or other adversarial criminal proceeding to the finding permitted by s. 50(1)(c).

1. The part of the Act under which a formal hearing is conducted is Part 3.  It is headed "Investigations".  The division is Division 4, headed "General provisions relating to investigations".  The powers of subpoena conferred upon a panel conducting a formal hearing by s. 53 are those conferred upon a Board appointed by an Order-in-Council;  not those conferred upon an inferior court by the statute creating it.  They are powers expressed in terms more appropriate to an inquiry than to inter partes litigation before a court.[5]

   [5]Cf. s. 43 Magistrates Court Act 1989.

1. Section 52(a) provides that the procedure of a panel is within its discretion.  Thus it regulates its own procedure;  that is to say, it is able to decide the way in which it discharges the legal duty conferred upon it.  The word "procedure" as used in this context is normally applied to the method of enforcement of a legal right or obligation, rather than the right or obligation itself.  It refers to the steps a party must take to enforce a legal right.  In so far as a procedural requirement or ruling impinges upon or affects a legal right, it does so collaterally rather than directly.  Thus the power conferred by s. 52(a) is one going to procedural and not substantive matters.

1. Royal Commissions and Boards of Inquiry, which are investigative bodies, normally regulate their own procedure within their terms of reference by giving directions as to how they will carry out the task committed to them, whatever it might be.  Whether evidence will be received in writing or orally, whether notice must be given of any dispute in respect of written evidence already filed, whether witnesses must attend for cross-examination, etc, are all matters of procedure.  On the other hand, questions as to whether a fact has been proved to the satisfaction of the decision making body or whether certain conduct does or does not constitute unprofessional conduct of a serious nature, are not matters of procedure.    They are matters of substantive rights and obligations.  There is a clear limit to what a panel may determine in its discretion under s. 52(a).

1. This analysis of the statutory provisions relating to a panel appointed under s. 46 of the Act leads to a number of conclusions:-

(a)At least up until the point at which it makes one of the findings contemplated by s. 50(1) of the Act, a panel is engaged in an investigative process by which it is required to hear and determine, by means of a formal hearing, allegations of misconduct against a medical practitioner.

(b)A panel must observe the rules of natural justice.  That is to say it must afford procedural fairness to the practitioner being investigated in the way in which it conducts a formal hearing and reaches its conclusions.  This subject is referred to below.

(c)A panel is not in any sense deciding an issue between parties.

(d)The findings open to a panel must include, by necessary implication, a finding that in any particular case it may be unable to reach a conclusion on any of the issues raised by s. 50(1) on the evidence which it accepts.

1. Mr J Forrest, QC, counsel for the plaintiff, submitted that although the panel is a creature of statute it must, by necessary implication, have all the powers necessary to carry out its function.  One such power, he argues, has to be a power to stay a proceeding for abuse of process which arises either from the discretion as to procedure conferred by s. 52(a) or by virtue of the panel's being bound by the rules of natural justice (s. 52(d)).

1. Mr Forrest relied upon the judgment of Dawson J in Grassby v The Queen[6] in which his Honour discusses the difference between inherent and implied jurisdiction; the latter arising from the principle that a grant of power carries with it everything necessary for its exercise. But his Honour went on to emphasise that the existence of any such implied jurisdiction must be derived by implication from the statutory provisions which conferred jurisdiction to act on the body being considered in the first place. Even if the concept of implied jurisdiction extends to a body exercising investigative functions, as a panel would be in that phase of a formal hearing before it had decided whether a medical practitioner had been guilty of unprofessional conduct or not, the clear statutory obligation imposed upon it by s. 49 of the Act when it commences a formal hearing leaves no room for the implication of a power to do the opposite; that is a power to refuse to hear and determine a matter if it considers it unfair to a medical practitioner to do so.

   [6](1989) 168 CLR 1 at 16 et seq.

1. In Grassby, Dawson J went on to point out that in the case with which he was there concerned the magistrate upon whom the jurisdiction of committing a person for trial was conferred was required by the statute conferring that jurisdiction to undertake the task committed to him.  This meant either discharging the accused person or committing him or her for trial.  With respect to the statute conferring jurisdiction on the magistrate his Honour said:-

"There is no room in the face of these statutory obligations, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided."

1. Reference was also made by Mr Forrest to John Fairfax & Sons Ltd v Police Tribunal of New South Wales[7] and to Jago v District Court of New South Wales[8].  In so far as the New South Wales Court of Appeal in Police Tribunal and the High Court in Jago concerned themselves with implied powers they were speaking, respectively, of powers necessarily implied from statutory provisions conferring jurisdiction on each of the bodies concerned, namely the Police Tribunal and the District Court of New South Wales.  In neither case did the statute conferring jurisdiction contain a mandatory provision inconsistent with the powers sought to be implied as did the statute conferring jurisdiction on the Magistrate hearing the committal proceeding in Grassby[9].

   [7](1985) 5 NSWLR 465.

   [8](1989) 168 CLR 23.

   [9](1989) 168 CLR 1 at 18.

1. The second way in which Mr Forrest put the case for the plaintiff was by reliance upon the statutory requirement that a panel conducting a formal hearing must comply with the rules of natural justice[10].  Even if that statutory provision had been absent, having regard to the subject matter being dealt with by a panel the rules of natural justice would have applied.[11]

   [10]S. 52(d) Medical Practice Act 1994.

   [11]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Annetts v McCann (1990) 170 CLR 596.

1. The rules of natural justice are normally expressed as being the right to be given a fair hearing and the opportunity to present one's case, the right to have a decision made by an unbiased and disinterested decision-maker and the right to have that decision based on logically probative evidence[12].  They are sometimes referred to as the hearing rule, the bias rule and the evidence rule.  Each of them is concerned with the procedure adopted by the body required to observe procedural fairness.  The remedy for a failure to afford procedural fairness in circumstances where the rules of natural justice apply is that the decision will be quashed and the matter remitted to a properly constituted body to be redetermined according to law.[13]  The rules of natural justice say nothing as to the alleged unfairness in bringing a case forward at all as alleged by the plaintiff in this instance.  The fact that a panel conducting a formal hearing under the Medical Practice Act 1994 is bound by the rules of natural justice does not give rise to an implication that the panel has a power to stay a formal hearing on the ground of abuse of process.

   [12]Salemi v MacKellar(No 2) (1977) 137 CLR 396.

   [13]Kioa v West (1985) 159 CLR 550; Public Service Board (NSW) v Osmond (1986) 159 CLR 657.

1. Mr Forrest referred the Court to the dissenting judgment of Mahony JA of the New South Wales Court of Appeal in Gill v Walton[14] where he speaks of "natural justice and injustice".  But there he is not speaking of the rules of natural justice as that term is used in s. 52 of the Act.  He is referring rather to what he called the "many circumstances in which this Court will intervene for reasons based upon the justice of a particular proceeding."  His Honour was speaking in the context of the power of the New South Wales Court of Appeal to stay a proceeding in the Medical Tribunal of that State as an abuse of process:  a concept considerably wider than that to which the Act is referring when it refers to the rules of natural justice.  It is thus distinguishable from the present case.  In so far as Mr Forrest referred to a number of other decisions, none of them binding upon this Court, they are equally distinguishable from the present case.

   [14](1991) 25 NSWLR 190.

1. Even if, contrary to what I have said above, there could be distilled from the rules of natural justice or the requirements to afford procedural fairness a power in a panel to refuse to hear a matter where it considered that to do so would constitute an abuse of process, the clear command in the Act requiring it to hear and determine the matter before it would override any such requirement.  As Mason CJ and Brennan J said in Laws v Australian Broadcasting Tribunal in a slightly different context[15]:-

"The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it.  Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice.  Those rules may be excluded by statute:  Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109-110, 112 et seq, 118-119; Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 401, 442; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 348-349, 362-363."

The majority of the High Court in Ebner v Official Trustee[16] (Gleeson CJ, McHugh, Gummow and Hayne JJ) cited the above passage with approval in a discussion of the bias rule of procedural fairness.

[15](1991) 70 CLR 70 at 89.

[16](2000) 205 CLR 337.

1. I conclude that a panel appointed pursuant to the Act to conduct a formal hearing into complaints of misconduct against a medical practitioner has no power to stay a hearing being conducted or to be conducted before it on the ground of abuse of process.

1. To deny any implied power in a panel to stay an investigation for abuse of process does not mean, however, that the facts capable of giving rise to an allegation of abuse of process will be necessarily irrelevant to the process in which the panel must engage. For example, an allegation of fact made by a complainant which cannot be refuted by a medical practitioner for want of lost or destroyed documents, or for any other reason, would have to be viewed in light of the inability of the practitioner to engage in an effective denial. Thus the readiness of a panel to make a finding of misconduct may be affected by the inability of the medical practitioner to contradict the allegations made against him or her. In some cases this may lead a panel to be unable to make any of the findings contemplated by s. 50(1). Further, if the element of alleged abuse of process is a lengthy delay, that fact alone may affect the fact-finding of the panel in a similar way. There may be other ways in which the facts which might have given rise to an application to stay for abuse of process will become relevant in the course of a formal hearing conducted by a panel under the Act. A panel complying with its statutory obligations will recognise them and act accordingly. Further, a panel possesses ample procedural discretion to mould its processes to alleviate, as far as possible, the effect of any prejudice to an accused practitioner arising from a situation which might be capable of amounting to an abuse of process.

1. Having determined this question in the way that I have, I propose to make no order other than an order dismissing the defendants' summons of 1 March 2002.

1. In due course I shall dismiss that part of the originating motion seeking relief in the nature of certiorari in respect of the Panel's ruling that it had no jurisdiction to entertain an application to stay the formal hearing which it had been appointed to conduct into the plaintiff's professional conduct.  I shall now proceed to complete the trial of the originating motion and the action commenced by writ brought by XD against the defendants.

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