EDELSTEN v RICHMOND

Court of Appeal (NSW)|1989-07-24|Before: Mahoney JA, Priestley JA

MAHONEY PRIESTLEY MEAGHER JJA 24 July 1989, 1 September 1989 [1989] NSWCA 71

CLAIM FOR ORDERS IN NATURE OF PROHIBITION OR CERTIORARI AND DECLARATIONS - claim that orders made against applicant by Medical Tribunal were nullities - claim based on assertions that (i) Medical Board, at time it caused constitution of Medical Tribunal was either non existent or lacked relevant power; (ii) Medical Tribunal not properly constituted because delegated power used to appoint members not validly conferred; (iii) Chairman of Medical Tribunal not validly appointed; (iv) other members of Medical Tribunal not validly appointed all claims dependent on construction of statutes and documents all claims fail

Mahoney JA In this proceeding Dr Edelsten claims orders in the nature of prohibition or certiorari and declarations. The facts are detailed in the judgment of Priestley JA which I have had the advantage of reading. Mr Neil QC, for Dr Edelsten, has taken four points. These points are of a technical nature and do not go to the substantial merits of the removal of Dr Edelsten from the Register of Medical Practitioners. But they go to the exercise of public powers and it is proper that they be pursued. However, as the points taken depend, or may depend, upon the state of the evidence and as points differently formulated may have been able to be cured by further evidence, it is proper that the proceeding be dealt with by reference, and reference only, to the points as they have been taken.

The points taken depend upon the provisions of the Medical Practitioners Act 1938 as amended by the Medical Practitioners (Amendment) Act 1987. They go to the constitution of the New South Wales Medical Board ("the Board") and its relationship to the Medical Tribunal ("the Tribunal"). Prior to the amendments of 1987, complaints of the kind here relevant were dealt with by a Medical Board: s5; and by a Disciplinary Tribunal: s28. The effect of the 1987 Act was to set up a new Board and a Medical Tribunal: see s5 and s32M. The 1987 Act was assented to on 16 June 1987 but the relevant parts of it came into effect on | October 1987. Under the Act as amended, complaints of the relevant kind were dealt with initially by the Board: see s28 et seq. The complaints might be referred by the Board to the Tribunal: see s32 et seq. The complaint is then heard by a Tribunal composed of a Chairperson and of three other persons appointed by the Board for that purpose.

The review of Dr Edelsten's conduct had been commenced prior to 1 October 1987. When the 1987 amendments came into effect, the complaints in respect of them fell to be dealt with by a Tribunal. And it was therefore necessary for steps to be taken to ensure that, inter alia, a Tribunal was set up in accordance with the amended legislation. The points now taken are taken because of what was then done.

The four points taken are, in substance, as follows:

That the Board which acted in relation to the matter was not constituted in accordance with the amended Act and so could not do what, under the legislation, was necessary effectively to bring the complaints before a Tribunal for consideration;

2.That the particular Tribunal was not properly constituted because it was constituted by the Chairman of the Board under delegated powers and such powers were not validly delegated to him;

3.That the Judge who acted as Chairman of the Tribunal during its deliberations was not validly appointed as such; and

4.That certain of the persons who constituted that Tribunal were not validly appointed to it because they were not appointed before the Tribunal commenced to deal with the complaints.

I agree with what has been said by Priestley JA in relation to these matters. However, I desire to add certain observations of my own in relation to the first two points which have been taken.

The basis of this point is: that the Act provides that the Board "shall consist of eighteen individuals who shall be appointed the Governor": s5(3); that the Governor purported to appoint eighteen persons as members of the Board; that one, Dr Gunz, was then over seventy years of age and so did not become or did not remain a member of the Board: see Schedule 2 CL7(1)(g) of the Act; that therefore the Board never had or ceased to have eighteen members; and that therefore it could not act to perform such of its functions as were required for the proper constitution of the Tribunal in the present case.

This point does not, I think, go to the existence of the Board. S5 of the amended Act provided:

"5.(1) There is constituted by this Act a corporation under the corporate name of the 'New South Wales Medical Board".

(2) The Board shall have and may exercise the functions conferred or imposed on it by or under this or any other Act.

(3) The Board shall consist of 18 members who shall be appointed by the Governor."

The Board is, therefore, a corporate entity constituted by the Act. It would, I think, remain in existence even if, for ordinary reasons, all of its members ceased to be members: see Ex parte Goldsbrough Mort and Co Ltd; re McGrath 32 SR 338 at 342, per Harvey J 47 CLR 121. I do not think that the appointment of members to the Board was intended to be a condition precedent to its coming into existence. It would have been contemplated that, notwithstanding the transitional provisions of the 1987 Act, the Governor would not or might not appoint members until the amending Act came into operation. But the Board came into existence by virtue of the commencement of s5(1) and so its existence preceded, or might precede, the appointment of members to it.

It is not necessary to pursue the question whether, absent an express provision that the Board have a corporate existence, it would have had an existence apart from its members: of the position of the previous Board constituted under s5 of the Act as it was prior to the 1987 amendment. It has been said that a body set up by statute is a corporate entity if the statute makes it a court of record: see Ex parte Goldsbrough Mort and Co Ltd re McGrath at 340. The previous Board was not of that character and, it may be, it was not a Tribunal in the formal sense: cf GJ Coles and Co Ltd v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503 at 527E, per McHugh JA.

The argument suggested that, because Dr Gunz was over the age of seventy when he was appointed, his appointment was either initially invalid or he ceased immediately to be a member of the Board. Therefore, the suggestion was, the Board had never been fully constituted with eighteen members or, alternatively, it had less than eighteen members at the time when it purported to do the acts here in question. And, the submission suggested, the full or proper constitution of the

Board was necessary to the validity of what it did. The relevant principle is, in my opinion, that stated by McHugh JA in the GJ Coles case. His Honour: at 525E; said: "One of the basic doctrines of common law jurisprudence is that the failure to perform a mandatory condition imposed by statute invalidates the doing of any act dependent on the fulfilment of that condition. In so far as such an act imposes duties or creates rights, the effect of nonfulfilment of the condition is that the act is totally incapable of creating legal consequences. For legal purposes, the act has no effect and may be disregarded. Administrative and constitutional law provide many illustrations of this basic doctrine."

It is therefore necessary to consider whether it was the legislative intention that full and proper constitution of the membership of the Board was a condition precedent to the exercise by the Board, as a statutory corporation, of its powers. In some cases, the statute makes such an intention clear. Thus, in the McGrath case, it was expressly provided that the powers of the Industrial Commission could be exercised only by the three members of it: 47 CLR at 126. In other cases, such an intention may be drawn by implication from the legislation: of Hamblin v Duffy (No 2) 55 FLR 228 at 236.

I do not think that, in the present case, such was the legislative intention. The provisions made by the legislature for the operation of the Board suggest that it was intended that the Board function notwithstanding, for example, the existence of vacancies in the membership of it. Provision is made by Schedules 2 and 3 to the amended Act for the Board to function with a quorum of ten, for the filling of casual vacancies, and generally for the incidents of the operation of a Board of the relevant kind and size. I do not think it was the statutory intention that, for example, if a member had died and the Board had in ignorance of his death exercised its functions, what it did should be invalid. It is not necessary to pursue the detail of the provisions in these two Schedules or to examine the requirements of s5(4) in this regard. It was, in my opinion, not the statutory intention that the matters set forth in s5(3) and (4) should, in the relevant sense, be statutory conditions precedent to the exercise by the Board of its statutory powers.

It may be argued that, whatever be the position thereafter the Board cannot act unless and until it has been initially constituted, fully and in the manner detailed in the Act. I do not think that was the legislative intention. One may envisage an initial appointment which was irregular for, eg, non-compliance with membership of the specified group. It was not, I think, the contemplation that that would prevent the Board operating or invalidate its operation whilst in that state. In the present case, an attempt was made to constitute the Board fully and properly. It failed or became ineffective for non-compliance with a particular statutory requirement as to age. I do not think there is, in this, a relevant distinction.

Priestley JA has referred to the possibility of special cases. I agree that such cases may occur. But I do not think the possibility of them should lead to the conclusion that the statutory intention was other than I have indicated.

2.Delegation of the Board's authority: The basis of this point is s3(3)(a). As I have said, it is for the Board to appoint the persons, other than the Chairperson, who are to constitute the "Tribunal" to hear a particular complaint: s32M(3). In this case, the appointment was made by the Chairman of the Board. He purported to act on behalf of the Board, in reliance upon a delegation of the power to do so.

The Board may delegate the exercise of such a function: s13(1). But s13(3) provides:

And the section provides that a delegate is "subject to such conditions as are specified in the instrument of delegation": s13(4).

In the present case, the Board purported to delegate its power by a resolution duly passed at a meeting of the Board and that resolution was recorded in writing in the Minutes of the Board's proceedings kept in accordance with CLS of the Third Schedule to the amended Act. The point taken is that a delegation made and recorded in that way does not satisfy s13(3)(a) and that it is therefore invalid.

It is therefore necessary to determine what is required by the provision that the delegation "shall be in writing". Mr Neil's argument suggested, I think, that such a provision is equivalent to a provision that the delegation "shall be made in writing" or "shall be by writing" and support was, I think, seen for this in the use of the phrase "instrument of delegation" in s13(2) and (4).

The term "instrument" as used in ordinary speech is not confined to writings which create rights or liabilities: the dictionary definitions extend to writings which evidence rights and liabilities. And recognition is given to this wider meaning. In Halsbury's Laws of England, 4th ed, Vol 12, par 1437, Sir Irvine Goulding and Mr Taylor said that the term "as applied to a writing may have a still wider scope, and may include documents which affect the pecuniary position of parties although they do not create rights or liabilities recognised in law; but usually it applies to a document under which some right or liability, whether legal or equitable, exists."

The formal statutory record of the minutes of the corporation setting forth the resolution passed in this case

But Mr Neil's argument suggested, I think, that the requirement that the delegation "shall be in writing" requires that the act in the law by which the delegation is made must be a writing and that the process which constitutes the passing of a resolution is not such.

I do not think that the width of the words, as used in s13, is so narrow. The meaning of the words must be taken from their context and from what might be seen as the ordinary operation of the Board. The Board would operate only, or at least ordinarily, by resolution. It may, no doubt, authorise the execution of written documents and lay down the manner on which, by it, those documents are to be executed. But ordinarily at least a delegation would be made by it by a resolution. And, under Schedule 3 CL5, a minute of that resolution must be made.

Words such as "in writing" or "be in writing" have been given a wide interpretation. Thus, a document in the form of an operation agreement but signed only by one party has been held to be "an agreement in writing": TA Ruf

and Co Ltd v Pauwels (1919) 1 KB 660 at 662. In that case, the English Court of Appeal accepted that a document setting out an agreement but confirmed by the relevant party only orally was "an agreement in writing". The agreement was, therefore, not made or constituted by the writing: its operation depended on an oral acknowledgment or acceptance. But the court held that it was "an agreement in writing".

I do not think that a narrower construction should be given to s13. The minutes of the Board's resolution provide the statutory recognition of what was done by way of delegation and that, in my opinion, satisfies the requirements of the section.

It is therefore not necessary to consider whether, if the section were not satisfied, the delegation was invalid. As at present advised, the requirement of the section, though peremptory, was not such as to warrant the inference that the legislature intended that non-compliance with it should invalidate what was done: see Hatton v Beaumont 52 ALJR 583; (1977) 2 NSWLR 211. However, it is not necessary to express a final conclusion upon that matter.

I agree with the judgment of Priestley JA upon the other points which have been raised. I agree with the orders proposed.

Priestley JA The question in this case is whether what puported to be an ordermade on 29 November 1988 by the Medical Tribunal of New South Wales ('the Medical Tribunal") that the name of Dr GW Edelsten ("the claimant'') should be removed from the register of medical practitioners was of any legal effect. The question has been raised by proceedings in this Court's original jurisdiction in which the claimant has sought orders and declarations on the footing that the order for the removal of the claimant's name from the register was a nullity.

Four grounds are relied on in support of the claimant's contention.

The first is that the Medical Tribunal had not come into existence at the time when the persons purportedly comprising it began to conduct the inquiry into the complaints against the claimant which led to the making of the order against him, because, it was said, the New South Wales Medical Board ("the Board") upon which the Medical Tribunal depended for its constitution, was not itself in existence when it purportedly caused the Medical Tribunal to be constituted.

The argument in support of the first ground is as follows. Until 1 October 1987 the Medical Practitioners Act 1938, ("the principal Act") provided that complaints of the kind made about the claimant should be referred, if certain preliminary requirements were fulfilled, to the Disciplinary Tribunal of New South Wales ('the old Tribunal'') provided for under that Act. In accordance with the then procedures of the principal Act, complaints against the claimant had been referred to the old Tribunal, which had taken certain steps in regard to them, before 1 October 1987. On that date the Medical Practitioners (Amendment) Act 1987, ("the amending Act"), came into force. By force of this Act, new provisions were inserted in the principal Act including s32M by which the old Tribunal was replaced by the Medical Tribunal. The amending Act also contained transitional provisions aimed at permitting complaints already before the old Tribunal to be heard by the Medical Tribunal. The procedure required by the transitional provisions involved the Board in taking steps towards the constitution of the Medical Tribunal. The statutory basis for the Board was s5 of the principal Act introduced into that Act by the amending Act, from 1 October 1987. S5(1) provided that there was "constituted by this Act a corporation under the corporate name of the 'New South Wales Medical Board'". S5(3) provided

that the Board was to consist of eighteen members who, by virtue of s5(4), were to be appointed by the Governor from seven different categories of persons.

S32M, whose insertion in the principal Act brought the old Tribunal to an end and created the Medical Tribunal, also provided that the Board was to appoint three persons to sit on the Medical Tribunal for the purpose of conducting the inquiry into any complaint in addition to taking steps to see that the Chairperson or a Deputy Chairperson should also sit on the Tribunal for the purpose of conducting the inquiry.

Pursuant to the changes in the legislation, a meeting of Board members was held on 1 October 1987, in the course of which, inter alia, the necessary steps were purportedly taken for constituting the Medical Tribunal to carry on with the inquiry into the complaints against the claimant. Seventeen members attended this meeting. These had been appointed prior to the commencement of the operation of the new sections, by virtue of CL4 of Schedule 4, Savings and Transitional Provisions of the amending Act. CL1 of Schedule 4 supplied some definitions. One was that "new Board" meant "the New South Wales Medical Board under the principal Act on the commencement of Schedule 1(2)", that commencing day being 1 October 1987. CL4 provided that "For the purpose only of enabling the new Board to be constituted on or after (but not before) the commencement of Schedule 1(2), appointments [might] be made under the principal Act, as so amended, and anything else [might] be done, before that commencement as if the whole of this Act commenced on the date of assent to this Act [16 June 1987] but so that no appointment as a member of the new Board as so constituted [should take] effect before that commencement." Pursuant to this power, a list of eighteen persons chosen in the way stipulated by subs(4) of the new s5 was compiled and the Minister recommended that they be appointed. This recommendation was duly approved by the Lieutenant Governor with the advice of the Executive Council, on 30 September 1987. No point is raised by the claimant concerning seventeen of the persons thus made members of the Board. The eighteenth, however, was at the time of the appointment over the age of seventy. CL1 of Schedule 2 of the Principal Act, Provisions relating to Members of the Board, made a person over seventy "not eligible to be appointed as a member of the Board or to act in the office of a member". It was because the significance of the eighteenth appointee's age was realised between the time of his appointment and the holding of the Board's first meeting, that he did not attend the meeting. An appointment in his stead was made on 9 December 1987. By that time, the procedures for constituting the Medical Tribunal to carry on the inquiry into the complaints against the claimant had been completed and the Medical Tribunal had entered on the inquiry.

The point the claimant seeks to make is that, in the foregoing circumstances, notwithstanding the words of s5(1), that the Board "is constituted by this Act a corporation", either the corporation did not come into existence until all eighteen members had been appointed by the Governor under s5(3), or alternatively, the Board, if constituted before all eighteen members had been appointed, could not validly transact either any business at all, or the business that it did transact in regard to the inquiry into the complaints against the claimant. On any of these bases, the Medical Tribunal had not been validly constituted within the meaning of the Act. The argument that the Board was not in existence on 1 October 1987 was that when the whole of s5 was read, the subsections following subs(1) showed that that subsection should not be taken literally and that the Board was intended to be regarded as constituted only when all eighteen members had been

appointed. Counsel for the claimant carefully took the Court through all the possibly relevant provisions of both the principal Act and the amending Act in support of this contention. I will not reproduce them, because with one possible exception, I cannot see that they support the claimant's submission. The words of s5(1) seem to me plainly, in their context, to be saying that upon the commencement of the operation of s5, there and then by force of the statutory provision coming into operation, the Board came into existence as a legal entity. That legal entity would not be able to do anything in the absence of living members but nonetheless its existence as a legal entity, distinct from its membership, seems to me to be quite clearly achieved the moment s5 began to operate. I point out here two meanings of the word "constitute" in relation to the Board. In one sense the Board is constituted by its members; in another sense, the Board, the statutory corporation, is constituted, that is, brought into existence, by the Act. It is the latter sense that is used in s5(1).

Upon this basis, the alternative versions of the claimant's first ground must, in my opinion, fail. Contrary to the alternative particularly stressed on behalf of the claimant, the Board came into existence as a legal entity on 1 October 1987, not, as the claimant contended, when all eighteen members had been appointed, which on the claimant's view of things, did not come about at least until 9 December 1987. It follows from the view I take of s5(1), that on 1 October 1987 the Board was in existence as a legal entity, seventeen members had been validly appointed and one had been appointed whose appointment was defective. Nevertheless, as the quorum for a meeting of the Board was ten members (principal Act, Schedule 3, CL2) it was, in my opinion, competent for the Board to transact any business within its powers. Further, once the position is reached that the Board as a legal entity came into existence by force of the statutory provision on | October 1987, then s52(1) of the Interpretation Act 1987 seems to me to come into play, and cure the consequences, if there relevantly were any, of the appointment of the over age member.

Although the statutory provisions are, in my opinion, so strongly against the basic contention urged for the claimant that I think it is unnecessary to go into further detail about them, there were three submissions which, in deference to counsel, I should mention. The first was that it appears from subs(3) and (4) of s5 that it was intended that the Board should represent different interest groups from within the community. It was said that to regard the Board as constituted and operative without the appointed representatives of each group being able to attend a meeting of the Board is inconsistent with the plain intention of the Act. Ido not think this argument can stand against what seems to me to be the obvious meaning of s5(1). If, after the coming into operation of s5(1), a situation was deliberately produced whereby say ten members only were appointed, with the intention that some interest groups should not be represented at the making of some decision of the Board, it may be that such a decision could be attacked on grounds involving mala fides. Such an example is of course by way of hypothesis only, to test the submission of the claimant; it is not to be expected that such a situation would arise. However, if it did arise, then it seems to me that the legal remedy would be by way of attacking such use (or abuse) of the Board's power as wrongful, rather than by denying the existence of the Board itself as a legal entity.

The second submission drew the Court's attention to Schedule 4 of the amending Act, Savings and Transitional Provisions, and to the terms of CL4 of that Schedule, earlier set out. It was submitted that this clause showed that the

legislature contemplated that the new Board might be constituted either on or after the commencement of s5. However, as also earlier set out, CL1 of the schedule defined "new Board" as meaning the Board "under the Principal Act on the commencement of Schedule 1(2)". CL4 thus seems to me to illustrate the first of the two meanings of the word "constitute" that I earlier mentioned; the context of the clause requires the word to be understood as meaning the Board as constituted by its members, while the definition of the new Board in CL1 seems to me to illustrate that s5(1) was using the word "constitute" in the sense in which, to my mind, it was plainly used in that subsection, namely, as bringing into existence by force of the statutory provision itself the Board as a statutory corporation (CL4 is the statutory provision I earlier mentioned as the one possible exception to my opinion that there was nothing in any of the statutory provisions which supported the claimant's argument.)

The third submission drew attention to two cases which held that particular bodies lacked power, for want of a member. These cases however seem to me to support the view I have formed in the present case, rather than the contrary. In Magrath v Goldsbrough Mort and Co Ltd (1932) 47 CLR 121, the powers of the Industrial Commission of New South wales were held to be suspended once the number of members fell below three. The Act establishing the Industrial Commission provided that it should be constituted by the appointment of three members. However, the constituting section also provided that at sittings of the Commission all members should be present and any question should be decided according to the decision of the majority. With fewer than three members the Commission could not exercise any power. Similarly, in Hamblin v Duffy (1981) 37 ALR 297, Lockhart J held that where a statute provided a tribunal should consist of three members, by whom questions were to be decided by majority in the event of division, and there was no provision for a quorum, it was necessary for all three members to be present, to make a determination (at 302-3).

Before leaving the claimant's first ground, I note that I have not taken into account, in reaching the conclusion that it should not be accepted, a section of the Interpretation Act 1987, which, as far as I recall, was not mentioned in argument. This is s53, which, if relevant, would give further reason for finding against the claimant's first ground. However, as I do not think it was referred to, it does not seem right to take it into consideration.

The claimant's second ground asserted that the Deputy Chairperson (his Honour Judge Ward) who sat on the Medical Tribunal conducting the inquiry into the complaints against the claimant, had not been duly nominated, with the result that the Medical Tribunal was not lawfully constituted. The statutory framework was that by virtue of Schedule 4 to the amending Act, Savings and Transitional Provisions, an uncompleted inquiry being conducted by the old Tribunal immediately before 1 October 1981 was to be terminated on and from that day and deemed to have been referred to the Medical Tribunal under s31 of the principal Act:CL9(3)(a) and (b)S31(1) provided, inter alia, that the Board should refer complaints to the Medical Tribunal which was to "be constituted in accordance with this Act to deal with the complaint". S32M(4) provided that on being informed of the complaint the Chairperson should nominate himself or herself or a Deputy Chairperson to sit on the Medical Tribunal for the purpose of conducting an inquiry into the complaint. It was common ground before this Court that his Honour Judge Staunton was the Chairperson. The claimant's submission was that on the material before this Court it should be concluded that he had not nominated Judge Ward to sit on the Medical Tribunal. It apparently

had not been clear to the opposing parties in these proceedings prior to the commencement of the hearing in this Court that the claimant would be making this particular point in this way; upon its becoming clear, leave was sought and granted, without opposition, to the calling of evidence on the point. Evidence was then given by Judge Ward's Associate to the effect that in July 1987 Judge Staunton had asked Judge Ward to sit on the old Tribunal dealing with the complaints against the claimant and, upon the commencement of the new system, had had communications with him explicable only on the basis that he was asking him, as Deputy Chairperson to sit on the newly created Medical Tribunal in its inquiry into those complaints. It was not submitted for the claimant that the nomination by the Chairperson had to be in writing, nor, so far as I can see, would there have been any basis for such a submission. The evidence of Judge Ward's Associate, understood in the light of the documents she prepared on instructions from Judge Ward and after discussion with Judge Staunton, which were in evidence, together with the fact that Judge Ward sat on the Medical Tribunal inquiring into the complaints against the claimant, all seem to me to lead to only one conclusion, that as a matter of fact Judge Staunton did nominate Judge Ward to be the Deputy Chairperson in accordance with the statutory requirement. I do not think the claimant's second ground is made out.

The claimant's third ground depended on the requirement pursuant to s32M that it was the obligation of the Board to appoint three other persons to sit on the Medical Tribunal with the Deputy Chairperson. The Board was empowered by s13(1) of the principal Act to delegate to a person the exercise of this function. The minutes of the Board's meeting of 1 October 1987 record:

"DELEGATION OF BOARD'S POWERS TO ITS COMMITTEES AND THE PRESIDENT

That the Board delegates to the President of the Board, its powers to appoint medical practitioners and lay persons to sit on inquiries or appeals by the Medical Tribunal constituted under s32M of the Medical Practitioners Act, as amended."

$13(3) required that a delegation under subs(1) must be in writing. The submission for the claimant was that the written minute recording the delegation to the President was not a delegation in writing as required by the Act. It seems to me that it was. Schedule 3, Provisions Relating to the Procedure of the Board, inserted in the principal Act by the amending Act, required the Board to cause full and accurate minutes to be kept of the proceedings of each meeting of the Board. Fulfilment of this requirement in regard to the meeting of 1 October 1987 brought about the result that the delegation in question was written down and, although this may not have been required, signed by the President. The statutory requirement that the delegation be in writing can only have been directed to the keeping of a written record of such delegation and the production of written proof to anyone who might properly require it of the fact of the delegation. Both these purposes were served by the delegation being recorded in writing in the minutes in the particular form in which it was. Any person requiring proof of the delegation could be shown either the minute itself or a facsimile of it. It seems to me that what was done fulfilled both the literal requirements of s13(3) and also the purposes of the subsection. In my opinion the claimant's third ground should not be accepted.

The claimant's fourth ground questions the validity of the appointments of the three other persons to sit on the Medical Tribunal with the Deputy Chairperson. A letter dated 2 October 1987 from the Acting Registrar of the Board to Judge Staunton stated, inter alia, that the Board had at its meeting on 1 October 1987

appointed Dr W Grant, Dr D Child and Mr N Whalan to sit on the Medical Tribunal. The claimant questioned whether this was the fact, but this does not seem to me to matter, in light of later events. The date fixed for the Medical Tribunal to take up the inquiry was 12 October 1987. Before that date Dr Child and Mr Whalan had disqualified themselves from taking part in the inquiry. By letter dated 12 October 1987 the President of the Board wrote to Judge Staunton as Chairman of the Medical Tribunal, saying that by virtue of the authority delegated to him by the Board he thereby appointed Dr WB Grant, Dr RJ Mulhearn and Ms FT Ovadia to sit on the Tribunal for the purpose of conducting the inquiry. It was these three persons who, from 12 October 1987, sat with Judge Ward on the inquiry which eventually made the order of 29 November 1988. It was not asserted before us that the Medical Tribunal in taking up the inquiry on 12 October 1987 did so before the appointments by the President of the Board that day were made by letter to Judge Staunton. In the absence of evidence or submission on this point it is proper to infer that the appointments were made before the Medical Tribunal took up its inquiry on that day. If the claimant's assertion that the three persons mentioned in the Deputy Registrar's letter of 2 October 1987 had not been validly appointed is correct, then it seems to me that the appointments of 12 October 1987 were a due compliance with s32M(3)(d). If the earlier appointments were valid, then one of two situations must, in my opinion, have applied. Either the disqualifications amounted to a vacation by the persons disqualifying themselves of their positions on the Medical Tribunal or they did not. If they did, then the appointments by the President of the Board on 12 October 1987 were simply valid of their own force; and if they did not, then the appointments of 12 October 1987 necessarily removed (see s47(1)(b) of the Interpretation Act 1987) the appointees who had disqualified themselves at the same time as effectively appointing the two new persons to act in the position. On any view, it does not seem to me that the claimant made out the fourth ground.

In my opinion none of the grounds supporting the claimant's contention that the order made against him on 29 November 1988 by the Medical Tribunal was of no legal effect has been made out. In my opinion his summons should be dismissed with costs.

Counsel for Claimants: Mr M Neil QC, Mr T Alexis Solicitors for Claimants: Shenker and Associates

Counsel for Opponents: (5 and 6) Mr T Tobin QC, Mr Sexton Counsel for Opponent: (7) Mr James QC, Miss Bergin

Solicitor for Opponents: HK Roberts, State Crown Solicitor

At a glance

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Cases Cited (4)

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