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[2001] QSC 384
procedural. Application adjourned to the callover list; interlocutory injunction refused; costs reserved (paragraphs [24]–[26]).
Dr Crowe challenged the revocation of his clinical privileges by the Mater Hospital, alleging denial of natural justice by internal committees (bias, lack of representation, no chance to address penalty). Dutney J held that while private hospitals are subject to statutory regulation and may attract public-law standards, the legal and factual questions about bias and procedural fairness were sufficiently complex and intertwined to require a full trial. The court found a serious question to be tried but refused an interlocutory mandatory injunction to restore privileges, adjourned the application for final hearing expedition, and reserved costs.
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1,675 words · generated 10/08/2026
Dr George Robertson Crowe, a physician practising in Mackay, sought judicial intervention after the Mater Hospital's internal governance bodies revoked his clinical privileges. The hospital's process began with a show-cause letter dated 11 July 2001 from the CEO raising concerns about 14 patients, including four relatively recent complaints, three of which had been referred by Dr Fitzsimmons to the Medical Board of Queensland (see [11], [8]). A Credentials Committee hearing occurred on 17 July 2001, after which the Credentials Committee recommended revocation. The Executive adopted that recommendation and on 1 August 2001 the General Administrative Committee resolved to accept the Executive's recommendation, resulting in the withdrawal of Dr Crowe’s privilege to use the hospital’s facilities (see [1], [3]–[6], [15]).
No linked legislation citations have been extracted yet.
Dr Crowe sued, seeking declarations that the revocation was void or legally invalid and interlocutory (or final) injunctions restoring his right to hospital facilities. He alleged breaches of natural justice: (1) reasonable apprehension/actual bias because of committee compositions and prior conduct by committee members (notably Dr Fitzsimmons), (2) improper participation of investigating members in decision-making, (3) denial of legal representation at the Credentials Committee hearing, and (4) denial of opportunity to address penalty (see [12]–[13]).
On interlocutory application the court had to decide whether (a) the rules of natural justice applicable to public bodies applied to the hospital's internal tribunals and, relatedly, whether apprehended bias or proof of actual bias was required to invalidate the decision; and (b) whether to grant an interlocutory mandatory injunction reinstating Dr Crowe's privileges pending trial. Dutney J found that there was a serious question to be tried but declined to resolve the factual issues of bias on interlocutory application, refused the interlocutory injunction on balance of convenience grounds, adjourned the application to the callover list for expedited hearing, and reserved costs (see [19]–[26]).
Three main considerations governed the judgment.
Limited remit on interlocutory application: The court emphasised its constrained role on an interlocutory hearing. It could examine procedural fairness but could not finally determine the correctness of the hospital’s substantive decision without a full trial (see [2]). Many of the issues raised by Dr Crowe were factual, whether members were actually biased, the exact role of members in the investigative process, and whether hospital procedures afforded the protections claimed.
Uncertainty and complexity of the law in private vs public settings: Dutney J acknowledged the existing authorities pointing to a different approach to natural justice for domestic tribunals (citing Glass JA in Maloney) where apprehension of bias in private associations might often not disqualify members due to the consensual nature of those associations (see [16]). At the same time, he noted that private hospitals operate within a statutory and regulatory framework (licensing, reporting obligations under the Health Act) which might justify aligning natural justice obligations for hospitals more closely to public authorities, particularly when livelihood and income are at stake (see [18]). This uncertainty made it unsuitable to resolve core legal standards and factual disputes on an interlocutory basis.
Balance of convenience and risks in interlocutory relief: The court accepted there was a serious question to be tried (a prerequisite for interlocutory relief) and acknowledged Dr Crowe's loss of income and reputational effects if not restored (see [21]–[22]). But on the balance of convenience it refused the mandatory interlocutory injunction. Reasons included the hospital's ability to pursue an expeditious appeal and final hearing, alternative hospital access for Dr Crowe albeit with possible facility gaps, and the hospital's exposure to risks (patient safety, potential liability) if an injunction forced it to admit a practitioner whose clinical competence or conduct remained in contention (see [23]–[24]). The judge also noted the possibility of giving undertakings as to damages and indemnification, but overall the status quo was preserved pending trial.
Before: Authorities established a general distinction between natural justice obligations owed by public bodies and those owed by private/domestic tribunals. Cases such as Maloney and Forbes had set out that private associations, due to their consensual nature and practicalities of internal governance, often require a more limited standard; apprehension of bias did not automatically disqualify members in such settings (see [16]–[17]).
Contribution of Crowe: Dutney J did not overthrow or categorically alter that distinction. Instead, he emphasised two points:
First, private hospitals may sit closer to public authorities in nature because of statutory licensing and public-facing functions; this supports an argument for heightened natural justice obligations in that context (see [18]). This is obiter but significant: it recognises that private entities exercising regulated or public-like functions may attract stricter procedural standards.
Second, where factual disputes about bias or procedural irregularity are intricate and interwoven with substantive questions (for instance, investigating roles, overlapping committee membership, prior complaints to external regulators), courts should ordinarily resolve those disputes at trial rather than on interlocutory motions (see [19]–[20]).
After: The practical proposition is that applicants challenging internal hospital disciplinary processes should expect courts to require a full factual airing before making conclusive rulings on bias and procedural fairness. That said, the judgment opens the door to treating private hospitals as operating in a hybrid space where natural justice obligations may be closer to public-law standards; future decisions will need to test that point.
Paragraph [2]: "The respondent is a purely private corporation. It is not amenable to the provisions of the Judicial Review Act. If I have power to interfere in the internal affairs of the corporation, however, it is only in relation to the process."
Plain-English: The court cannot supervise the hospital as if it were a government agency; its power is limited to checking procedural fairness, not re-deciding the merits of the hospital's decision.
Paragraph [16] (quoting Maloney): Domestic tribunals are different; members cannot divest predilections and if apprehension of bias were disqualifying, enforcement of internal rules would be unworkable.
Plain-English: In many private associations, some level of perceived bias is unavoidable because members have prior relationships; the law recognises this and does not always treat perceived bias as fatal.
Paragraph [18]: "There is in my view a strong argument... that the requirements of natural justice as they relate to a private hospital should be more closely aligned with the requirements relating to public authorities..."
Plain-English: Although the hospital is private, because it is heavily regulated and performs public-facing functions, it might need to follow procedural standards similar to public bodies, especially when someone’s livelihood is threatened.
Paragraph [20]: "Actual bias is alleged... ultimately this is a factual matter... the matter must in the end be resolved by a trial."
Plain-English: Accusations of actual bias raise factual questions that cannot be answered fairly in a short interim hearing; the court needs a full trial.
Paragraph [24]: "On balance I am not prepared to grant an interlocutory injunction..."
Plain-English: Even though the applicant raised serious issues, the court decided not to temporarily restore his hospital privileges before a full hearing.
The decision is most likely to be engaged where:
A private hospital or similarly regulated private entity revokes professional privileges and the affected practitioner alleges denial of natural justice, particularly where allegations include prior complaints to regulatory bodies, overlapping committee membership, or investigating members participating in adjudication (see [8], [12], [15]).
The internal governance rules are silent or sparse on procedures for revocation, creating a dispute about the expected procedural standard (see [4]–[6]).
The revocation affects the practitioner's income and reputation, sharpening the urgency for interim relief (see [22]).
There are intertwined factual and legal issues, bias, participation, adequacy of hearing, that cannot be neatly separated without evidence (see [19]–[20]).
This judgment is cautious and fact-dependent. It does not purport to determinatively settle the public/private divide. Later courts relying on Crowe are likely to treat it as authority for two practical propositions:
Interlocutory relief in challenges to domestic tribunal decisions will not be granted where substantial factual disputes about bias or process exist and are best determined at trial.
Private hospitals may be considered to occupy a middle ground; their statutory regulation is a relevant factor in assessing whether public-law standards of natural justice should apply.
Because Dutney J left open the precise borderlines, subsequent courts will need to evaluate on their facts whether Crowe's obiter comments about hospitals should be applied, followed or distinguished.
Threshold for public-law standards: The judgment signals but does not define when a private body (like a hospital) will attract natural justice obligations equivalent to public authorities. What precise mix of statutory regulation, public-facing functions, or licensing duties will suffice remains open (see [18]).
Apprehended vs actual bias: While Crowe acknowledges the general tendency to require proof of actual bias in private-organisational contexts, it leaves unresolved whether some forms of apprehended bias (in high-stakes contexts like professional privileges) might suffice without proof of actual bias on particular facts (see [16], [20]).
Interim relief parameters: The case illustrates reluctance to grant mandatory interlocutory injunctions restoring professional status before trial where patient safety and hospital exposure to liability are plausible countervailing considerations. But the precise evidentiary threshold and weighting of competing public-interest factors (patient safety vs livelihood) remains to be worked out in future cases (see [21]–[24]).
Role of alternative dispute processes: The judgment references available appeal procedures within the hospital by-law framework (rule 4.502), but leaves uncertain how internal appeals and their speed or adequacy should influence courts' willingness to grant interim relief.
This analysis is based only on the text of Crowe v Mercy Health and Aged Care Central Queensland Limited [2001] QSC 384 as provided. It explains what the judgment says and identifies issues a lawyer might examine further. It is not legal advice.
Before you act on anything in this deep dive, get a qualified Australian lawyer to check it; this is general legal information and I may be mistaken.
[1] DutneyJ: Dr Crowe is a physician practising in Mackay. The respondent is the company responsible for the Mater Hospital in Mackay. On 1 August the General Administrative Committee resolved to accept a recommendation from the Executive Committee to revoke Dr Crowe's clinical privileges at the hospital. The Executive Committee recommendation followed its adoption of a recommendation from the Credentials Committee. The revocation of clinical privileges results in Dr Crowe being denied access to the hospital facilities for treatment of his patients.
[2] Dr Crowe seeks a declaration that the revocation of clinical privileges is void or legally invalid. He further seeks injunctions whether interlocutory or not having the effect of restoring his right to use the hospital facilities. The basis of these applications is that he was denied natural justice. The respondent is a purely private corporation. It is not amenable to the provisions of the Judicial Review Act. If I have power to interfere in the internal affairs of the corporation, however, it is only in relation to the process. The correctness or otherwise of the decision to revoke the applicant's clinical privileges is not a matter I have been asked to consider and nor could I consider it without a full trial of the issues involved even if the power to do so exists.
[3] Some background is necessary. The process to which Dr Crowe was subjected is governed by the "Visiting Practitioners Medical/ Non-medical By-Laws". The initial grant of clinical privileges is governed by rule 4.30. Rule 4.301 requires all visiting practitioners desiring to use the hospital's facilities to complete an application for submission to the Chief Executive Officer. Rule 4.302 requires the Chief Executive Officer to submit the application to the Credentials Committee. Following a positive recommendation of the Credentials Committee the Executive adds the applicant's name to the register of visiting or other practitioners in the category of practice or specialty in which he has been granted privileges.
[4] The withdrawal of privileges is governed by rule 4.204 which is in the following terms:
"Appointments, reappointments and revocation of appointments shall be made by the Executive and endorsed by the General Administrative Committee only after an application has been reviewed and a recommendation made by the Credentials Committee."
[5] Unlike the grant of clinical privileges, no procedure is laid down for the revocation of those privileges.
[6] Rule 4.502 provides for an appeal to the Chairman of the Health Services Board against any decisions relevant to their accreditation to the hospital. Again no procedure is specified.
[7] Finally, while dealing with relevant rules regard must be had to rule 4.102 which provides:
"Acceptance of privileges granted, shall constitute acceptance by the practitioner of the conditions set out in these By Laws and his agreement to abide by the ethical principles, philosophies and objectives of the hospital and to adhere to any policies and procedures covering conduct of the hospital in force from time to time."
[8] Dr Crowe relates his troubles with the hospital to a troubled relationship with Dr Fitzsimmons. Dr Fitzsimmons is an anaesthetist in Mackay with clinical privileges at the Mater Hospital. In early July 2001 Dr Crowe was advised by the Health Assessment Unit of the Medical Board of Queensland that a complaint had been made against him by Dr Fitzsimmons in relation to his treatment of three patients. Dr Fitzsimmons in his affidavit agrees that the complaint was made but says that he made it in his capacity as chairperson of the Medical Advisory Committee. Dr Fitzsimmons says that he brought the matters to the attention of the Medical Board to see if they warranted any further investigation.
[9] There also seems to have been some disharmony between Dr Crowe and Dr Fitzsimmons over the need to engage an anaesthetist when performing endoscopies. Dr Crowe's practice seems to have been to give the sedation himself. Dr Fitzsimmons denies that he told Dr Crowe that he wanted to give sedation to all patients who have gastroscopic procedures but says that he merely passed on the recommendation of the Medical Advisory Committee which was that it was not mandatory but highly desirable to have a person other than the operator controlling the management of monitoring and sedation of the patient undergoing surgery.[1]
[10] At all times Dr Fitzsimmons was on the Medical Advisory Committee.
[11] On 11 July 2001 Dr Crowe received a show cause notice by letter from the chief executive officer of the hospital, Mr John Nugent. The letter raised concerns in relation to 14 patients over a period of two years. Included among the patients in relation to which Dr Crowe was asked to show cause were the three patients in relation to which the reference to the Medical Board was made. One of the complaints was in relation to cancelling the booking for an anaesthetist for a gastroscopy to be performed in day surgery. These four particular complaints were the most recent and occurred over a short period of about a fortnight.[2]
[12] Dr Crowe responded to the letter and a hearing of the Credentials Committee was convened for 17 July 2001. Dr Crowe's complaint is that he was not afforded natural justice at the hearing. During the course of argument his counsel, Mr Land, identified four specific areas of complaint which are submitted to justify the intervention of the court. These were firstly, the composition of the Credentials Committee was such that there was a reasonable apprehension of bias; secondly, the role played by members of the committee in the investigation of the complaints rendered them ineligible to sit for the same reason; thirdly, Dr Crowe was denied legal representation; and finally, Dr Crowe was denied the opportunity to address on penalty. To these might also be added a concern that many of the same persons who sat on the Credentials Committee were also members of the General Administrative Committee and the Executive who were required to consider the recommendation of the Credentials Committee.
[13] The respondent raises a preliminary issue which seems to me to require a determination in favour of Dr Crowe before any other issue arises in relation to the primary relief. This is the extent to which the rules of natural justice as they apply to public bodies with the power to affect rights or privileges apply in the case of purely domestic tribunals. In particular it is submitted that to result in the decision of any of the committees of the respondent hospital being invalid or void for bias, actual bias must be proven and a mere perception of bias, however reasonable is not sufficient. Unless actual bias is proven the respondent submits the matters raised can only be determined after a trial on the merits.
[14] As is apparent from the rules set out above the ultimate decision to withdraw privileges is made by the executive. The members of the executive who made that decision were Mr Nugent, the CEO, Ms Wade, the director of nursing, Mr Cousins, the director of finance and general services, and Sister Stancia Cawte, the assistant CEO.
[15] The General Administrative Committee comprised 8 members including Sr Stancia Cawte, Ms Wade and Mr Nugent. The Credentials Committee comprised 10 members including Sr Stancia Cawte, Ms Wade, Mr Nugent and Dr Fitzsimmons.
[16] The principal authority relied on by the respondent on this issue was Maloney v NSW National Coursing Association Ltd [3] where Glass JA said:
"The passages I have quoted from these various decisions furnish, in my view, adequate support for the proposition that the requirements of natural justice are in some respects different where domestic tribunals are concerned. They also adumbrate the reasons why this is so. In the administration of justice by courts proper, and those acting in a similar capacity, public policy requires that there should be no doubt about the purity of the administration. . . .The rules being enforced have no consensual basis. The parties have not chosen the tribunal . . .Domestic tribunals are usually established in circumstances which are radically different. The members generally speaking have agreed to abide by a set of rules and the authority of a committee to enforce them, if necessary by expulsion. The committee members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members. Apprehension of bias could be generated in all kinds of ways. If it was a disqualifying consideration, the enforcement of the consensual rules would be largely unworkable. There may be some circumstances where a suspicion of bias would operate to disqualify a member of a domestic tribunal. But generally speaking it does not so operate and, in particular, it cannot operate with respect to tribunals such as that set up by article 10 in the articles of the defendant association."
[17] The issue is not easily resolved as evidenced by Glass JA's qualification that the rule may not be universal. In seeking to identify the extent to which the rule may not be universal reference should be made to what Murphy J[4] wrote in relation to the powers of a racing club committee to "warn off" an individual where it was alleged natural justice had not been afforded:
"There is a difference between public and private power but, of course, one may shade into the other. When rights are exercised directly by the government or by some agency or body vested with statutory authority, public power is obviously being exercised, but it may be exercised in ways that are not so obvious. In my opinion, a body which conducts a public racecourse at which betting is permitted under statutory authority, to which it admits members of the public on payment of a fee, is exercising public power. It may not arbitrarily exclude or remove such a person from the lands during a race meeting."
[18] It is not clear to me that the Mater hospital should be treated differently from a body such as a turf club which operates under a governmental authority. The legislation governing the operation of a private hospital is complex. For example, it can operate lawfully only while it is the holder of a license under Part 3 Division 4 of The Health Act 1937 (Qld).[5] The Health (Private Hospitals) Regulation 1978 requires the licensee of the hospital to report monthly in relation to patients and maintain prescribed records of treatment. There is in my view a strong argument to be made that the requirements of natural justice as they relate to a private hospital should be more closely aligned with the requirements relating to public authorities rather than those relating to purely private associations.[6] Particularly might this be so where the matter in issue concerns the income and livelihood of the complainant. Of course, as in many cases where a breach of natural justice is alleged it is only the first step to determine that the complainant is entitled to natural justice. It is also necessary in cases where the distinction between purely private and public powers is blurred to determine the content of the rules of natural justice in the particular case.
[19] In my view it is not appropriate to resolve this matter on an interlocutory application. Counsel for the applicant concedes that the authorities concerning what must be proved to establish bias in the case of a private organisation tend towards the necessity for actual rather than apprehended bias.[7]
[20] Actual bias is alleged in this case as well as apprehended bias. If apprehended bias were enough I would have no hesitation in allowing the application on the basis that the inclusion of Dr Fitzsimmons on the Credentials Committee in view of his earlier complaint about the same matter to the Medical Board and apparent financial interest in issue concerning the use of specialist anaesthetists and the presence of Sr Stancia Cawte, Ms Wade and Mr Nugent both on the recommending committee and on the decision making committees. In addition, Ms Wade had also made complaints concerning Dr Crowe and had formed a view at least to the extent of being concerned prior to the meeting of the Credentials Committee. The applicant submits that this latter matter is sufficient to satisfy me that actual bias is established. It seems to me, however, that ultimately this is a factual matter. If the law is uncertain and the extent to which it is necessary to find facts depends on the correct law to be applied I consider it inappropriate to take a piecemeal approach to the matter. With some reluctance, recognising the potential financial consequences for Dr Crowe, I consider that the matter must in the end be resolved by a trial. I take this view recognising that there are grounds raised other than bias for setting aside the decision. The issues seem to me to be intertwined to the extent that it is not appropriate to attempt to separate them at this stage.
[21] The question of an interlocutory injunction pending trial now arises. In my view there is clearly a serious question to be tried in this case and the issue becomes one of weighing the balance of convenience. The fact that any interlocutory injunction would be, in effect, a mandatory one requiring the hospital to make its facilities available to Dr Crowe does not, in my view, inhibit the power to make the order sought.[8]
[22] For Dr Crowe the matters going to convenience are clear-cut. As long as the matter remains unresolved he is losing income in circumstances which may ultimately prove to be wrong. There is also an effect on Dr Crowe's reputation although the hospital contends that this is self-inflicted by reason of the advertisements placed in the local newspaper. To obtain an injunction Dr Crowe would, of course have to give the usual undertaking as to damages which in this case might, prima facie, include indemnifying the hospital against any negligence claim concerning him arising during the currency of the injunction.
[23] For the hospital the issues raised include the availability of an expeditious appeal.[9] While the procedures under which such an appeal might be conducted are subject to some dispute I can see no reason why such an appeal ought not to proceed whether or not an interlocutory injunction is granted. Dr Crowe retains access to two other hospitals for treatment of his patients although I understand that those hospitals do not necessarily have the same facilities as the Mater hospital or co-extensive facilities with the Mater Hospital. Finally, it is submitted that if the Credentials Committee decision is correct the hospital is exposed to the possibility of claims against it by reason of the actions of Dr Crowe.
[24] On balance I am not prepared to grant an interlocutory injunction in this matter. In reaching this conclusion I have taken into account in addition to the factors I have listed the fact that if the parties are minded to progress this matter quickly a final hearing can be afforded before the end of the current court year. In the end I take the view that this matter should be finally disposed of as quickly as possible and that pending such final resolution the balance of convenience does not favor any change to the current position.
[25] The application is adjourned to the callover list. I will hear the parties in relation to directions to expedite the hearing.
[1] Fitzsimmons affidavit exhibit "DLF1",page 3.
[2] This is particularly noted in the minutes of the Credentials Committee and is stated to be the reason for the show cause: see Crowe exhibit "GRC11" at page 7.
[3] [1978] 1 NSWLR 161 at 170 -171.
[4] Forbes v NSW Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242 at 275. The discussion of the difference between small private organisations and those which perform a "substantial public function" by Dowsett J and the extent to which Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358 remains applicable can be found in Baldwin v Everingham [1993] 1 Qd R 10.
[6] In my view the uncertainty of the law in this area is heightened rather than clarified by the decision of Thomas J in Re Maggacis [1994] 1 Qd R 59.
[7] Cases referred to in argument and written submissions include North Sydney Cricket Club Inc v Sydney Cricket Association (SC of NSW - 31 March, 1995 - unreported) at paras 43,48; Bornecrantz v Queensland Bridge Association Inc [1999] QSC 58 at paras 33-34; Gamilaroi Boomerangs v Members of New England Group 19 [1999] NSWSC 495 at paras 54-58.
[8] See H.B. Homes Pty Ltd v Beer [1986] 2 Qd R 379.
[9] Forbes, Disciplinary Tribunals p166 at para [16.8].
Crowe
Mercy Health and Aged Care Central Queensland Limited [2001] QSC 384
(1934) 51 CLR 358
(1979) 143 CLR 242
Application adjourned to the callover list; interlocutory injunction refused; costs reserved (paragraphs [24]–[26]).