Freeman v Medical Practitioners Board of Victoria [2000] VSC 547

Supreme Court of Victoria|2000-12-20|Before: Balmford, J.

The applicant, with his solicitor and counsel, attended the meeting, which took the form of a hearing. Counsel appeared to assist Dr Flynn as delegate of the Board. Written submissions were handed to Dr Flynn by Mr Tracey QC, for the applicant, contending that she should proceed no further because first, the purported delegation to her was ineffective and, second, if that were not the case, the Board's power of suspension had not been delegated to her. Mr Tracey spoke to those submissions and Mr Habersberger QC, assisting Dr Flynn, responded. Mr Tracey formally requested written reasons for Dr Flynn's decision pursuant to the Administrative Law Act. Dr Flynn ruled that the Board had power to make the delegation to her, that she accordingly had power to decide whether to suspend Dr Freeman's registration, and that the delegation also implied the power to suspend his registration. She accepted the submissions of both counsel that it was not appropriate to proceed with the matter until the issue of jurisdiction was resolved, and the hearing ceased at that point. Written reasons for Dr Flynn's decision were forwarded to the applicant's solicitors on 26 September.

No submissions were made to the Court by either counsel on the question as to whether the three decisions were reviewable, on the application of Dr Freeman, under the Administrative Law Act. Accordingly the Court called the matter on again for the making of submissions on that point. At the resumed hearing, Mr Tracey QC replaced Dr Griffith QC, who appeared at the original hearing, and Ms McLeod was led by Mr Ruskin QC.

Any person affected by a decision of a tribunal may make application (hereinafter called an application for review) to the Supreme Court for an order calling on the tribunal or the members thereof (hereinafter called an order for review) and also any party interested in maintaining the decision to show cause why the same should not be reviewed.

That section is governed by the definitions in section 2, which reads:

In this Act unless the context or subject-matter otherwise requires -

"decision" means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision;

"person affected" in relation to a decision, means a person whether or not a party to proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision which has been made or is to be made or ought to have been made by the tribunal;

"tribunal" means a person or body of persons (not being a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court) who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice.

The effect of those provisions is that the reviewability, on the application of Dr Freeman, of each of the three decisions sought to be reviewed turns on:

whether it was a decision "operating in law to determine a question affecting the rights of any person" so as to fall within the definition of "decision";

whether Dr Freeman is "a person . . . whose interest . . . is or will or may be affected, directly or indirectly, to a substantial degree" by the decision, so as to fall within the definition of "person affected"; and

whether the decision-maker "in arriving at the decision in question [was] by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice" so as to fall within the definition of "tribunal".

I would have difficulty in finding that the first decision, that is, the decision to delegate to Dr Flynn the power to decide whether to suspend Dr Freeman's registration under section 27 of the Act, was "a decision operating in law to determine a question affecting the rights" of Dr Freeman (or of any other person), or that it otherwise fell within the definition of "decision" in the Administrative Law Act. Counsel were not able to refer me to any authority directly in point. However, in my view the delegation to a particular individual of the power to make a decision which will affect a person's rights does not of itself affect those rights. In any case, the making of the delegation did not remove the power of the Board to make the decision itself (see section 42A(1)(a) of the Interpretation Act). There appear to have been members of the Board (other than Dr Flynn) who felt unable to take part in the making of the decision (see paragraph 5 above). I have, as I have said, no evidence as to the reason for that situation. However, whatever problem existed could have been dealt with, as Dr Griffith submitted at the original hearing, by the appointment of acting members under section 71 of the Act, who could have exercised the power of the Board to make the decision.

Mr Tracey, at the resumed hearing, submitted that the effect of the delegation was that Dr Freeman lost the chance of a hearing before the Board itself, to which he was otherwise entitled; and that, subject to the provision for a quorum in section 73 of the Act, there was a possibility that Board as constituted for that hearing might have included among its members the lawyer required to be appointed to the Board by section 67(2)(b). The loss of the chance of a hearing by a Board constituted in part by a lawyer was, if I understood him correctly, the only basis upon which Mr Tracey submitted that Dr Freeman could be said to be a person whose interest would be affected to a substantial degree by the decision to delegate and accordingly that he was a "person affected" by that decision. I cannot find that the loss of that chance (assuming it to have been lost) affected Dr Freeman's interests "to a substantial degree", if at all. I have already referred, in the preceding paragraph, to the effect of section 42A(1)(a) of the Interpretation Act.

For those reasons, I find that for the purposes of the Administrative Law Act, the first decision was not a "decision", and Dr Freeman was not a "person affected" by that decision. Accordingly, the first decision is not reviewable under that Act on the application of Dr Freeman.

Neither the second nor the third decision could be said to be "a decision operating in law to determine a question affecting the rights of any person". They can be no more than the expression of an opinion by Dr Flynn as to the validity (in the case of the second decision) and the extent (in the case of the third decision) of the delegation made to her by the Board on 8 September 2000.

In the events which happened, the matter was adjourned by agreement, and so Dr Flynn did not proceed, on the basis of those expressions of opinion, to decide to suspend Dr Freeman's registration under section 27 of the Act (see paragraph 8 above). Whatever might have been the position had she done so, it cannot be said that Dr Freeman's "interest [was] affected, directly or indirectly, to a substantial degree" by those expressions of opinion.

For those reasons, I find that, for the purposes of the Administrative Law Act, neither of the second and third decisions was a "decision", and Dr Freeman was not a "person affected" by either of those decisions. Accordingly, the second and third decisions are not reviewable under that Act on the application of Dr Freeman.

Having found, for the reasons stated, that none of the three decisions is thus reviewable, it is not necessary for me to consider the question whether the decision-maker, in arriving at any of those decisions, was required to observe one or more of the rules of natural justice, so as to fall within the definition of "tribunal" in the Administrative Law Act.

In case I am wrong in my finding that none of the three decisions is reviewable under the Administrative Law Act on the application of Dr Freeman, I turn to deal with the substantive issues raised. I note also that Brennan J indicated in FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 420, that common law relief may be available where the decision to proceed under the Administrative Law Act proves to have been an error.

The essential question is whether the Board has authority under section 78 of the Act to delegate to Dr Flynn its power under section 27(1) (which provision appears in Part 3 of the Act) to "suspend the registration of [a] medical practitioner". The first submission of the applicant is that the power to make that decision falls within the description "the power . . . to make any determination under Part . . . 3", so as to be excluded by section 78(e) from the general power of delegation contained in section 78. Accordingly, it is submitted, the Board did not have authority to make the delegation.

The alternative submission of the applicant is that even if the instrument of delegation of 8 September 2000 did, as it was expressed to do, confer upon Dr Flynn the Board's "power under section 27 of [the Act] to decide whether to suspend Dr Freeman's registration", it did not confer upon her the Board's power actually to suspend the registration as opposed to its power to form "the opinion that it is necessary to do so".

The first question turns on whether a decision under section 27(1) of the Act to suspend the registration of a medical practitioner is properly described as a "determination under . . . Part 3" so as to come within section 78(e) and be excluded from the Board's general authority to delegate. Prima facie that is not the case. Section 27(1) contains three levels of decision-making, one of which is described as a "determination". The Board must first make a determination in terms of either paragraph (a) or paragraph (b); it must then form an opinion in terms of the last part of the sub-section; and only then is it in a position to suspend - not to determine to suspend - the registration of the medical practitioner. It would seem, then, that the absence of the word "determination" from the second two levels is likely to be deliberate.

The word "determination" and its congeners are used in a number of places throughout the Act to describe particular decisions of the Board and of panels. There are many other decisions provided for in the Act which are not so described. "Determination" and its congeners, applied to decisions of the Board, appear in the following provisions in Parts 2 and 3, the Parts of the Act referred to in section 78(e):

Section 5(2)(b) . . . the fee determined by the Board.

Section 11(1) Upon determining an application for registration . . . , the Board . . .

Section 13(1)(b) . . . the fee determined by the Board.

Section 13(2) . . . an additional renewal fee determined by the Board . . .

Section 24(1) . . . the Board has not determined . . .

Section 24(3) . . . [the Board's] power to make determinations upon a preliminary investigation

Section 27(1) The Board, after making a determination . .

Counsel referred me to only two authorities which considered the meaning of "determination" or its congeners. The first was the ex tempore judgment of O'Bryan J in City of Heidelberg v McPherson [1964] VicRp 102; [1964] VR 783 at 785, where His Honour held that the word "determines" in section 588 of the Local Government Act 1958 "means no more than decides or forms the opinion". His Honour found that a resolution of a municipal council to the effect that "the Council is of the opinion that the following works are necessary . . ." satisfied the requirement of the section that the Council "determines" that the works are necessary. His Honour referred to the fact that the Council had expressed its opinion "by resolution through its councillors", and that formality of expression was clearly relevant to his decision.

The second authority to which I was referred was my own decision in Select Plant Hire Pty Ltd v John Holland Construction & Engineering Pty Ltd [1998] VSC 102 at [33] to [34], where I referred to City of Heidelberg v McPherson and continued:

While accepting the conclusion reached by His Honour on the question before him, I would, with respect, be of the view that the word "determines", in the relevant sense, connotes something more formal than "decides" and significantly more formal than "forms the opinion". A decision of a municipal council by resolution of its councillors is formal in that way. My view is buttressed by the relevant definition of "determine" in Butterworth's Australian Legal Dictionary, which reads:

To make an order, direction, decision, or determination by a court or tribunal, or other authority vested with the power to so make a determination in relation to some matter.

I am still of that view; that is, that there is a difference, there described, between a determination and a decision. Every determination is a decision; but every decision is not a determination. Counsel did not seek to argue that the formation of the opinion required by section 27(1) was a "determination".

The meaning of an ordinary English word is a question of fact (see the discussion of this principle by Tadgell J in Franceschini v Melbourne and Metropolitan Board of Works (1980) 57 LGRA 284 at 290 and following). The first definition of "determination" in the second revised edition of the Macquarie Dictionary is "the act of coming to a decision; the fixing or settling of a purpose". However, the first definition of "determine" is "to settle or decide (a dispute, question, etc) by an authoritative decision". The two do not entirely coincide.

The relevant meaning of "determination" in the second edition of the Oxford English Dictionary is:

The ending of a controversy or suit by the decision of a judge or arbitrator; judicial or authoritative decision or settlement (of a matter at issue)

and a corresponding meaning is given for "determine". Taken with the meaning of "determine" in the Macquarie Dictionary, rather than the meaning of "determination", those definitions also support my view of the distinction between "determination" and "decision".

In Scott v Commercial Hotel Merbein Pty Ltd [1930] VicLawRp 4; [1930] VLR 25 Irvine J, with whom Macfarlan and Lowe JJ agreed, said at 30:

The authorities show that where there is a departure from a definite form of expression in the same Act in relation to a particular matter, the Legislature had a different intention. I need refer only to the case of R v Buttle [1870] LR 1 CCR 248 at 252, where Blackburn J states that when there is a change in the language of the enactment it must be taken prima facie that there was an intention to change the meaning. The same principle has been referred to in other cases, of which I need only mention the case of Lawless v Sullivan [1881] App Cas 373 at 382-3, where it is pointed out that, though it is not to be conclusive, the employment of different language in the same Act may show that that Legislature had in view different objects.

The learned authors of the fourth edition of Pearce & Geddes Statutory Interpretation in Australia point out, at [4.4] and [4.5], that the presumption there set out is readily rebuttable, particularly in the case of large and frequently amended Acts such as tax Acts. However, the Act is not large, and there has been almost no amendment of any of the relevant provisions. At [4.5] the authors say:

The issue will ultimately turn on the view the court forms of the care exercised by the drafter in the choice of words. If it should be shown that a word has been used with different meanings in an Act, then the argument for consistent interpretation cannot stand. If, on the other hand, it is clear that a word is used throughout an Act to convey one meaning, then the burden of showing that there was an inconsistent use should be regarded as difficult to discharge.

The first sentence of that passage was expressly approved by McGarvie J in Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VicRp 48; [1987] VR 529 at 540.

What has been said so far only serves to confirm that the distinction expressed in the Act between "determinations" and other decisions results from a deliberate choice of words by the drafter of the Act, and that it is not possible to assume that the word "determination" in section 78(e) is intended to apply to a decision not so described. However, Dr Griffith, for the applicant, made a number of submissions directed to the discharge of the burden described in the preceding paragraph, including the adoption of the submissions made by Mr Tracey to Dr Flynn, as described in paragraph 8 above.

The submission of Mr Tracey that the word "determination" does not appear in Part 2 overlooks the use of "determining" and "determined" (see paragraph 23 above) which can only refer to the making of determinations.

Mr Tracey submitted that it would be remarkable and anomalous if the Board could not delegate its powers under sections 24(2) and 26 to determine whether to conduct a preliminary investigation into a complaint or a formal or informal hearing, but could delegate the power under section 27(1) to suspend the registration of the practitioner which follows from the making of either of those determinations. The adjectives "remarkable" and "anomalous" seem to me extreme in the context. It would also be anomalous, Mr Tracey submitted, if the power to suspend registration could be delegated, but not the power under section 55(1) to remove the suspension.

However Ms McLeod, in reply to that submission, properly drew attention to the first purpose of the Act, appearing in section 1(a), namely to protect the public, and the consequential necessity to be able to make a swift decision in the circumstances provided for in section 27(1). She pointed out that the use of that section might be appropriate where there were allegations of immediate danger of continued criminal conduct potentially resulting in very serious harm to patients. The section made no provision for notice, representation, and the following of formal procedures, unlike sections 49 and 41 relating to the conduct of formal and informal hearings. The removal of the suspension is not attended with the same degree of urgency, Ms McLeod submitted, and in any case follows automatically from the making of a determination by a panel.

Finally, Mr Tracey referred to section 60 of the Act, providing for review by the Victorian Civil and Administrative Tribunal ("the Tribunal"). Section 60(1)(a) provides for review of "a decision to refuse a person's application for registration" and section 60(1)(b) for review of "a decision to impose conditions, limitations or restrictions on a person's registration". He pointed out that section 11(1) provides for the Board "determining an application for registration" and section 11(2)(ii) refers to "conditions limitations or restrictions imposed on the registration", which must also be comprised in the determination of the application. (Emphasis added.) He submitted that this apparent inconsistency indicated that the words "decision" and "determination" were used indiscriminately in the Act.

However, the word "decision" is employed in section 60 of the Act in the context of the provisions of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). Section 60 is a provision by which "jurisdiction is conferred on the Tribunal" in terms of section 42(1) of the VCAT Act, which describes the review jurisdiction of the Tribunal as "jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker". The Act is an "enabling enactment" by virtue of section 3 of the VCAT Act, which reads, so far as here relevant:

"enabling enactment" means an enactment by or under which jurisdiction is conferred on the Tribunal;

(1) For the purposes of this Act or an enabling enactment, a person makes a decision if the person -

(a) makes, suspends, revokes or refuses to make a decision, order, determination or assessment (including a decision not to make a decision, order, determination or assessment);

Thus the use of "decision" in section 60(1)(a) and (b) of the Act to refer to what is in effect described in section 11 of the Act as a "determination" cannot be used to support the submission that the two words are used interchangeably in the Act. The determination is a decision for the purposes of the VCAT Act. The use of "finding or determination . . . under Part 3" in paragraph 60(1)(d) is explicable on the basis that section 4(1) of the VCAT Act does not extend to provide that a person makes a decision if the person makes a "finding".

Dr Griffith, in his oral submissions, emphasised the significant effect on the practitioner of a suspension of the right to practise, without any recompense for loss of income during the period of suspension. The decision to suspend was, he submitted, one which was too serious to be delegated, particularly as the right of review under section 60 was limited, although he conceded that other administrative law remedies were available to a suspended practitioner.

While the seriousness of the effect on the practitioner is, of course, a matter to be borne in mind by the Board or by a delegate when exercising the power to suspend registration, again it must be borne in mind that, as Ms McLeod submitted (see paragraph 33 above), the first purpose of the Act is to protect the public, and it may be necessary for swift decisions to be made to that end.

Dr Griffith drew attention to the provision in section 71 for the appointment of acting members of the Board "[i]f a member of the Board is unable to perform the duties or functions of the office". He submitted that if, as appears to be the case here, a number of the members of the Board were disqualified from taking part in the making of a particular decision, acting members could be appointed, and this would be more satisfactory than solving the problem by delegation to a single member. That submission, however, in the present context, goes to administration rather than to substance.

Another submission going to administration is Dr Griffith's suggestion that it cannot have been intended that the power to delegate would extend to a suspension under section 27, because section 78 provides that the Board may delegate the several powers and functions there defined to

(a) a member of the Board; or

(b) the person responsible for maintaining the register or any other member of the staff of the Board.

It was unthinkable, he submitted, that the Board should have authority to delegate the power to suspend registration of a practitioner to a junior member of staff. It is true that such a delegation would be valid in terms of section 78. However, given the responsibilities and powers bestowed upon the Board by the Act generally, and the qualifications for membership and manner of appointment of the Board provided for in section 67, it may be assumed that the members of the Board would have the ability to discern which persons were appropriate to receive which delegations.

Dr Griffith submitted that it was the policy of the Act, apparent from the terms of section 78, that decisions relating to the capacity of a practitioner to practise were not to be delegated. However, the response to that submission is, yet again, that the power to suspend registration may need to be exercised swiftly in the interest of the public.

As Dr Griffith pointed out, the operation of section 27(1) does initially require the involvement of the Board itself, because before a suspension can take place, the Board must make a determination in terms of paragraph (1)(a) or (1)(b) of that section. His submission was that section 27(1) was a single provision, expressed in a single sentence, and required the making of a single decision, which by virtue of the opening words of the section was a determination. However, it is to be noted that section 27(1) was amended by the Health Practitioners Act Amendment Act 2000 with effect from 1 July 2000 (i.e. before the events giving rise to this proceeding) by the deletion of the word "upon" in those opening words, and its replacement with the word "after". This change in wording makes clear that there is more than one decision to be made in the operation of that provision.

Having considered the submissions of Dr Griffith, I find that he has not succeeded in the difficult task of discharging the burden of showing that the word "determination", where used in section 78(e) of the Act, was not intended to refer only to those provisions of Parts 2 and 3 of the Act which employed that word or its congeners. Accordingly, I find that by virtue of section 78 the Board had authority to delegate to Dr Flynn the power under section 27(1) to decide to suspend the registration of a medical practitioner.

Dr Griffith submitted that if the Court should reach that conclusion, it should find that the delegation did not, in any event, extend past the power to form the opinion required by the section. Even if the instrument of delegation of 8 September 2000 did, as it was expressed to do, confer upon Dr Flynn the Board's "power under section 27 of [the Act] to decide whether to suspend Dr Freeman's registration", it did not confer upon her the Board's power actually to suspend the registration as opposed to its power to form "the opinion that it is necessary to do so".

Sections 42 and 42A of the Interpretation Act (set out in paragraph 4 above) are relevant to this submission. There are three steps in section 27(1): the making of a determination by the Board, the forming of an opinion by the Board, and suspension (see paragraph 22 above). What is expressly delegated is the power "to decide whether to suspend". That delegation brings with it, by virtue of section 42(1), the power to make the decision whether to suspend on the delegate's own opinion as to necessity. Thus the delegation of the power to decide whether to suspend in effect carries with it a delegation of the power to form the opinion.

As I have said, the delegation to Dr Flynn of the power "to decide whether to suspend" did not have the effect of preventing the Board itself from exercising that power. Had the Board members perceived the actual suspension as involving a separate decision from the decision to decide whether to suspend, and had they deliberately refrained from delegating the power to make that separate decision, so as to retain it solely in their own hands, there would have been little point in their delegating the power "to decide whether to suspend". I am satisfied that, presumably for reasons related to the matters referred to in paragraph 5 above, the intention of the Board members other than Dr Flynn was to dissociate themselves from any decision relating to the possible suspension of Dr Freeman, save the making of the initial determination required by section 27 which, by virtue of section 78(e), was not delegable.

I am satisfied that the delegation of the power "to decide whether to suspend" was intended to, and did, carry with it a delegation of the power to suspend the registration of Dr Freeman if the delegate should decide to do so.

For the reasons given, I propose to order that the order for review be discharged. Counsel may wish to make submissions as to costs.

City of Heidelberg v McPherson [1964] VicRp 102; [1964] VR 783.

Scott v Commercial Hotel Merbein Pty Ltd [1930] VicLawRp 4; [1930] VLR 25.

Select Plant Hire Pty Ltd v John Holland Construction & Engineering Pty Ltd [1998] VSC 102.

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