Freeman v Medical Practitioners Board of Victoria [2004] VSCA 4

Court of Appeal (Vic)|2004-02-13|Before: CHARLES, CALLAWAY and VINCENT, JJ.A.

Costs - Appeal against order made on 20th December 2000 - Changed circumstances since that date making order appropriate for another reason - Competency of appeal in any event as order may have been interlocutory - Failure of respondent to apply for summary determination when appeal became moot - Administrative Law Act 1978, ss. 2, 7.

My reasons for this difference are twofold. First, the appellant's registration had been cancelled on 22 March 2002. As Callaway, J.A. has explained, these changed circumstances made paragraph 1 of the order of Balmford, J. on 20 December 2000 the appropriate disposition of the order for review in any event, and there was no longer a live issue between the parties except in relation to costs. The respondent could, as Callaway, J.A. observes, at any time thereafter have applied to the Court for an order that the appeal be struck out in the exercise of this Court's discretion. Any such application could have been dealt with promptly, possibly by two judges of the Court, and the costs of the appeal would probably have been substantially reduced. Secondly, the Court's reasons for affirming paragraph 1 of the order of Balmford, J. are somewhat different from the submission made by the respondent in the light of the changed circumstances.

On 13th July 2000 the respondent determined to conduct a formal hearing into the appellant's professional conduct. He had been charged with 35 offences against the Drugs, Poisons and Controlled Substances Act 1981, the regulations made thereunder and the Health Insurance Act 1973. On 3rd August 2000 the respondent resolved to suspend the appellant's registration pending the completion of the hearing. That resulted in proceedings in the Supreme Court which were ultimately settled. The decision to suspend the appellant's registration was revoked on 24th

August 2000. The next day the solicitor to the Board wrote to the appellant's solicitors recording that that had been done because of a procedural irregularity and reserving her client's right to give further consideration to the question of suspension.

On 8th September 2000, purportedly pursuant to s.78 of the Medical Practice Act 1994, the respondent delegated its power under s.27 of that Act to decide whether to suspend the appellant's registration until the hearing was completed. The delegate was Dr Joanna Mary Flynn, the President of the respondent Board. That was to overcome a perceived problem that the members of the Board who had participated in the decision of 3rd August 2000 were disqualified. On 19th September 2000, after hearing legal argument, Dr Flynn made two preliminary decisions. One was that the respondent did have power under s.78 to delegate its power under s.27 to her. The other was that the instrument of delegation included the power to suspend the appellant as well as the power to decide whether to suspend him. In these reasons "the first decision" means the decision of the respondent to make the delegation to Dr Flynn, "the second decision" means Dr Flynn's first preliminary decision and "the third decision" means her second preliminary decision.

The appellant obtained an order for review of each of those decisions under the Administrative Law Act 1978. The order for review came on for hearing before Balmford, J. on 15th November and 8th December 2000. On 20th December 2000 her Honour ordered that the order for review be discharged (paragraph 1 of her order) and that the appellant pay the respondent's costs of the application (paragraph 2). The appellant served notice of appeal the next day. There were interlocutory proceedings to which I shall refer later and, more importantly, the appellant's registration was cancelled on 22nd March 2002. That was not because of the original charges. It was because of other charges to which he had pleaded guilty on 15th and 16th March 2001. Thereafter there was no realistic prospect that the instrument of delegation would be acted on. The question of suspension could not arise unless the appellant first persuaded the respondent that he was a fit and proper person to be re-registered as a medical practitioner.

The appeal from the order made by Balmford, J. came on for hearing on 5th February 2004. Early in the course of the hearing we indicated that the Court would not disturb paragraph 1 of that order even if her Honour's reasons were shown to be incorrect. Relief under s.7 of the Administrative Law Act is discretionary. Such relief in relation to any of the three decisions would now be pointless, because the appellant is no longer affected by them in any practical way. Accordingly, if it fell to this Court to exercise the discretion, we should inevitably make the same order as her Honour had done in paragraph 1. That left for consideration the costs of the proceeding below, the costs of the interlocutory proceedings to which I have referred and the costs of the appeal.

Balmford, J. refused relief on the basis that none of the three decisions was reviewable under the Administrative Law Act. In case she was wrong, her Honour went on to hold that in any event the delegation was valid and the second and third decisions were correct. Her reasons and the relevant statutory provisions are set out in Freeman v. Medical Practitioners Board of Victoria[1]. As this is a judgment only on costs, I do not repeat them.

Mr Brett submitted that, notwithstanding the failure of the appeal as regards paragraph 1 of her Honour's order, paragraph 2 should be set aside and, in lieu thereof, the respondent should be ordered to pay the appellant's costs below. That was because, in his submission, the learned judge erred in holding that the decisions were not reviewable and also erred in upholding those decisions. The argument was that the appeal had failed because of a change in circumstances and, in order to do justice, it was necessary to decide whether the appeal would otherwise have succeeded. It was conceded, however, that, where there is no longer a live issue between the parties to an appeal except in relation to costs, an appellate court has a discretion not to entertain the matter.

In my opinion this is an even stronger case. The changed circumstances have made paragraph 1 of the order below the appropriate disposition of the order for review. It is not just a case where, for practical reasons, the parties are no longer affected by the outcome of the appeal. Moreover the appeal itself was not without its infirmities. I assume that, if it had otherwise been an appeal as of right, leave would not have been required under s.17A(1)(b) of the Supreme Court Act 1986 in order to pursue the appeal against paragraph 2,[2] but the appeal was incompetent, at least in relation to the second and third decisions.[3] The incompetency, or partial incompetency, of the appeal was raised by the Court on 5th February 2004. After hearing counsel, we granted leave to appeal nunc pro tunc, but on the basis that the appellant's failure to seek leave to appeal and the respondent's failure to object to competency would remain relevant to the question of costs.

In the circumstances that I have outlined, I do not think we are obliged to decide whether paragraph 1 of her Honour's order was right at the time it was made. At most we are required to determine whether the appellant would probably have succeeded but for the changed circumstances. An affirmative answer would justify a reconsideration of paragraph 2 of the order and affect the costs of the appeal but, like a negative answer, it would only be provisional. We are concerned with costs and probabilities as they affect costs. We need not, and should not, decide important points of law in a definitive fashion for that purpose. Paragraphs [12] and [13] below are to be understood subject to that qualification. I am not persuaded that the appellant would probably have succeeded in disturbing her Honour's conclusion that none of the three decisions was reviewable under the Administrative Law Act. It is unnecessary for me to express a view about the decisions themselves.

Whether or not the first decision operated in law to determine a question affecting the appellant's rights, or was merely preliminary to the determination of such a question, the respondent was not required to act in a judicial manner in making that decision.[4] Even if the respondent is a "tribunal" within the meaning of the Administrative Law Act, which Ms McLeod contested, it is not every decision of a tribunal that is subject to review under that Act_._ It must be a decision in relation to which the tribunal is required to act in a judicial manner.[5] An example of a decision that would not be reviewable would be a decision to purchase stationery or to change a supplier or to dismiss an employee. The decision to delegate to Dr Flynn was comparable to a decision as to which members should constitute the Board for the purpose of a hearing. If the delegation was invalid, remedies were available, but not relief in the nature of certiorari to quash the decision to delegate. That is, in effect, what was sought. Concerned as we are with costs, it is irrelevant whether relief in the nature of prohibition, a declaration or an injunction directed to the delegate herself may have been available. That was not argued below and I express no opinion on it.

I shall assume, without deciding, that the respondent would have been required to act in a judicial manner in deciding whether to suspend the appellant and that Dr Flynn, as its delegate, was required to act in a judicial manner in relation to the second and third decisions. (Those propositions were contested.) The difficulty for the appellant is that the second and third decisions did not operate in law to determine a question affecting the appellant's rights. His rights were precisely the same before and afterwards. The second and third decisions were simply expressions of opinion by the delegate, having the practical result that she was likely to act on the delegation. In saying that, I do not overlook the authorities discussed by Mandie, J. in El Alam v. Northcote City Council[6] or his Honour's decision in that case. As I am concerned only with a probability of success, I say no more about them, but it is unlikely that this Court would hold that a lay delegate, even if obliged to act fairly, who expressed an opinion that the delegation was valid and an opinion as to its scope was making a decision operating in law or having a legal, as opposed to a practical, effect.

For these reasons I would not disturb paragraph 2 of the order below and I turn to the costs of the appeal on the assumption that it would probably have failed in any event. That being so, there are still three reasons why the costs of the appeal might not follow the event. The first is that no objection to competency was taken by the respondent. When the point was raised, it was Ms McLeod's contention that the appeal was wholly incompetent. This is not, however, a case like VBI Properties Pty. Ltd. v. Victorian Civil and Administrative Tribunal[7], where the Court pointed out that the order was interlocutory, refused leave to appeal and dismissed the appeal as incompetent. On the contrary this appeal will be dismissed because paragraph 1 of the order below is appropriate and because, if the other members of the Court agree with me, we have not been persuaded to disturb paragraph 2. It is debatable whether the appeal would have been dismissed as incompetent if the objection had been taken at an earlier stage. I think it is quite likely that leave to appeal would have been granted.

The second reason why the costs of the appeal might not follow the event is that our reason for affirming paragraph 1 of the order is different from the submission made by the respondent in the light of the changed circumstances. Ms McLeod asked us to exercise a discretion to decline to entertain the appeal at all and submitted that it should be struck out with costs. We took the view that the appeal against paragraph 1 should be dismissed because, in the circumstances that now obtain, relief under s.7 of the Administrative Law Act should be refused. Counsel argued that she had nevertheless laid the foundation for that conclusion and, by implication, that the difference in the two approaches was not so great that her client should suffer in costs. I agree that that is so.

The third reason why the costs of the appeal might not follow the event is that both parties, and relevantly the respondent, have known since at least 22nd March 2002[8], when the appellant's registration was cancelled, that the appeal could serve no useful purpose except in relation to costs. The respondent could have applied to the Court for the very order which it proposed in its outline of submissions, namely that the appeal be struck out in the exercise of our discretion. (It is to be remembered that it was common ground that the Court does have such a discretion.) Had that been done, it is likely that the decision we made on 5th February 2004 would have been made on the return of the respondent's summons. The Court would have said then that the changed circumstances made paragraph 1 appropriate and that it would consider the appellant's arguments only in the provisional way that I have done. Argument on costs would still have been necessary, but the appeal would not have been prepared with a view to definitive results after a substantive hearing. There would have been a substantial saving in costs. For this reason I would give the respondent only two-thirds of its costs of the appeal.

That leaves the costs of the interlocutory proceedings. On 2nd February 2001 the appellant filed a summons seeking a stay, or alternatively an injunction, to prevent Dr Flynn from acting on the delegation. That was done pursuant to an agreement with the respondent's solicitor on 22nd December 2000. The application came on for hearing before Brooking and Ormiston, JJ.A. on 16th February 2001 and was adjourned with costs reserved. Shortly thereafter, apparently acting on a suggestion that had been made by Brooking, J.A., the respondent notified the appellant that it would consider his suspension at a meeting of the Board. Mr Brett submitted that that amounted to an abandonment of the delegation to Dr Flynn. I do not accept that submission. The respondent was simply following an alternative course that was consistent with the continuance of the delegation.[9]

On 21st November 2002 the appellant's solicitors wrote to the respondent's solicitor proposing that the respondent undertake to desist from any hearing by the delegate, that the summons be struck out and that the costs of the application made by summons be costs in the appeal. On 29th November 2002 the respondent's solicitor refused such an undertaking, pointing out that the appellant could no longer be suspended, because his registration had been cancelled. The respondent was willing to consent to the summons being struck out but considered that the costs should be determined at the time of the disposition of the appeal. The application made by summons came on again before Buchanan and Chernov, JJ.A. on 6th December 2002. The order of the Court is not recorded as having been made by consent, but it was to the effect that the application be dismissed with costs reserved.

Mr Brett submitted that, even if the respondent did not abandon the delegation, the appellant nevertheless achieved in practice the relief sought in the summons. That is true, but the summons was filed by agreement. The respondent was not unwilling to accommodate the appellant but was concerned that it had to discharge its duty to protect the public. At that stage it believed that the best way to do that was by means of the delegation. It was only in response to the suggestion from the Bench at the hearing on 16th February 2001 that it decided to proceed in a different way that made the delegation unnecessary. In return for an undertaking that was no longer appropriate, because the appellant's registration had been cancelled, the appellant's solicitors proposed that the costs of and incidental to the summons should be costs in the appeal. Although that proposal was not accepted and the order made on 6th December 2002 reflected the respondent's view that the costs should be decided at the same time as the appeal, I do not think that the appellant can complain if the costs associated with the summons are treated as costs in the appeal.[10]

20 The "other matters" part of the order of this Court should record that on 5th February 2004 the appellant was granted leave nunc pro tunc to appeal against the order made by Balmford, J. on 20th December 2000. Should the other members of the Court agree, I propose the following orders:

2. The appellant is to pay two-thirds of the respondent's costs of the appeal.

3. The costs of the appeal are to include the costs reserved by the Court of Appeal on 16th February 2001 and 6th December 2002.

For the reasons advanced by Charles, J.A. in his judgment, I also would order that the appellant pay one half of the respondent's costs of the appeal, including those earlier reserved by this Court. Otherwise I agree with the views expressed by Callaway, J.A. in his judgment and the conclusions reached by him.

[2] See Leibler v. Air New Zealand Ltd. [1998] 2 V.R. 525 at 528-529, but it may be that the present case is distinguishable.

[3] Hornsby v. Kaschke [1999] VSCA 153; [1999] 3 V.R. 27; Kassionis v. Magistrates' Court of Victoria [2002] VSCA 73 and VBI Properties Pty. Ltd. v. Victorian Civil and Administrative Tribunal [2003] VSCA 17.

[4] The relevant provisions of the Administrative Law Act, including the definition of "decision" and "tribunal" in s.2, are set out in Freeman v. Medical Practitioners Board of Victoria at [10].

[5] The expression "to act in a judicial manner" means, in this context, to act in a judicial manner to the extent of observing one or more of the rules of natural justice: see the definition of "tribunal" in s.2.

[8] Mr Brett submitted that the appeal in fact became moot when, shortly after the hearing on 16th February 2001 referred to below, the respondent decided that the Board itself would consider the question of suspension.

[10] See also paragraph 8 of the affidavit of Ashley del Corral sworn on 29th November 2002 and filed on behalf of the appellant, where that order is proposed without any reference to an undertaking.

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