Hargrave & Anor v Slater & Anor

Supreme Court of NSW|2000-05-04|Before: Davies AJ, Mr J, Mr P, Street CJ

CITATION : Hargrave & Anor v Slater & Anor [2000] NSWSC 387 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13120/99 HEARING DATE(S) : 4 May 2000 JUDGMENT DATE : 4 May 2000

Scott Charles Hargrave and David Hargrave (Plaintiffs)

v PARTIES : Peter Robert Slater (First Defendant)

LOWER COURT Local Court JURISDICTION : LOWER COURT N/A FILE NUMBER(S) : LOWER COURT Magistrate Murray JUDICIAL OFFICER :

COUNSEL : P - Mr M R Aldridge SC & Mr J Pappas 1D - Mr P Saidi P - Pappas, J - Attorney SOLICITORS : 1D - I V Knight, Crown Solicitor 2D - Submitting Appearance CATCHWORDS : Prerogative relief - alternatively, leave to appeal - meaning of "manipulate" - ruling of Magistrate on status of witness as expert - whether prerogative relief can be granted when ruling within jurisdiction - whether relief should be granted in respect of interlocutory ruling in criminal proceedings Supreme Court Act 1970, s65 LEGISLATION CITED : Justices Act 1902, s104(4) Chiropractors and Osteopaths Act 1991, s4 Dickinson v Perrignon (1973) 1 NSWLR 72 P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) (1973) 2 NSWLR 366 Public Service Association of SA v Federated Clerks' Union of Aust (1991) 173 CLR 132 Craig v State of SA (1995) 184 CLR 163 CASES CITED : R v Judges of the Federal Court of Aust; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 Sankey v Whitlam (1978) 142 CLR 1 Newby v Moodie (1988) 83 ALR 523 Smiles v Commissioner of Taxation (1992) 37 FCR 538 Stergis v Boucher (1989) 86 ALR 174 Vereker v O'Donovan [1988] 6 Leg Rep SL 3 DECISION : Dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WEDNESDAY 4 MAY 2000 13120/99 - Scott Charles HARGRAVE & Anor v Peter Robert SLATER & Anor JUDGMENT 1 HIS HONOUR: This application was brought under s 65 of the Supreme Court Act, 1970, a section which enables the Court to make orders in the nature of prerogative relief, but which provides for the making of those orders by means of a simplified process. 2 In my opinion, the effect of that provision is not to change the principles of the substantive law or to materially enlarge the circumstances in which relief would have been granted under the old practice. That view was taken by Street CJ in Eq in Dickinson v Perrignon (1973) 1 NSWLR 72 at 83, where his Honour said: "Where appropriate, as in a case such as the present, the substantive law underlying the grant of prerogative writs would have relevance to the exercise of jurisdiction under ss 75 and 65. But the court is relieved from the burden of evaluating a significant part of the technical and procedural considerations that have arisen to encumber rather than to enable the exercise of the court's supervisory powers."

See also P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) (1973) 2 NSWLR 366 at 382. 3 By leave this morning, the Summons was amended to rely also upon s 104(4) of the Justices Act, 1902, which enables a defendant to appeal against an interlocutory order that is made by a magistrate in summary proceedings on a ground that involves a question of law alone. The appeal is by leave only of the Court. 4 The matter in issue before the learned Magistrate was a prosecution of Scott Charles Hargrave and David Hargrave, it being alleged that, contrary to the provisions of s 4 of the Chiropractors and Osteopaths Act, 1991 (the Act), each had manipulated the joints of the human spinal column, being not a person registered under the Act as a chiropractor or osteopath or a person who was a registered medical practitioner or a physiotherapist. 5 The hearing before the Magistrate, which was not a committal but a trial of the offence, proceeded for some days when an issue arose as to whether a witness, Mr Kit Laughlin, intended to be called for the defendants, was a relevant expert and was entitled to sit in court while experts gave evidence for the prosecution. 6 The matter of Mr Laughlin's expertise was determined on a voir dire. Mr Laughlin gave evidence that, in Japan, he had studied, from about 1983 through to 1985, traditional Shiatsu which involved traditional Chinese massage and Palmer-style chiropractic. Mr Laughlin said that Palmer-style chiropractic was, in particular, a high velocity and low amplitude thrust technique, as it is taught in Australia as part of chiropractic and sometimes osteopathy. Mr Laughlin gave evidence that he, himself, had not practised, in Australia, Palmer-style chiropractic, which he said would be called chiropractic manipulation in Australia. 7 Mr Laughlin said that he was aware of chiropractic manipulation as performed by registered chiropractors in Australia. In the course of his practice as a practitioner of Shiatsu, he continued to study other relevant fields and understood what was happening in the various disciplines to which his practice was relevant. 8 The Magistrate held that Mr Laughlin was not a relevant expert as he had not completed any tertiary study directly connected with spinal manipulation, as he did not possess the essential prerequisites for his accreditation to any chiropractic association in Australia and as his work had been involved in the treatment of injuries through means other than the manipulation of the spinal column. The Magistrate considered that Mr Laughlin's field of expertise was in the complementary treatment of soft tissue, not chiropractic manipulation. 9 I have been asked to set aside that ruling on the ground that the Magistrate applied the wrong test. 10 I should say at the start that I would find it difficult to determine whether or not Mr Laughlin was a relevant expert without having any idea as to what would be the substance of his evidence. It seems to me that Mr Laughlin may well not be accepted to be an appropriate person to speak on the meaning of the word, "manipulate", in s 4 of the Act. That term has either its meaning in ordinary parlance, or its meaning as the term is used in the professions of chiropractice, osteopathy and medical practice and physiotherapy. 11 Mr M R Aldridge SC, with whom Mr J Pappas of counsel appeared for the Hargraves, has accepted that the term has a technical meaning. If that is so, it seems to me that, in New South Wales, the meaning it would carry would be the meaning which was understood by chiropractors, osteopaths, medical practitioners and physiotherapists in New South Wales. They would be the persons to speak of that. But that, of itself, would not necessarily lead to the view that there is not some evidence that Mr Laughlin could give as an expert. He works on patients' backs and whether he has anything relevant to say is certainly not disclosed in the present material. 12 Obviously, in a case such as the present, it is necessary first to determine what is the meaning of "manipulate" for the purposes of the Act. The ordinary dictionaries give one meaning. I have looked to two scientific dictionaries; one being Mosby's Medical, Nursing, & Allied Health Dictionary which describes "manipulation" as: "....the skillful use of the hands in therapeutic or diagnostic procedures, such as palpation, reduction of a dislocation, turning a fetus, or various treatments in physical therapy and osteopathy."

The Sloane-Dorland Annotated Medical-Legal Dictionary , gives a narrower definition: "Skillful or dextrous treatment by the hand. In physical therapy, the forceful passive movement of a joint beyond its active limit of motion." 13 The material before me, which does not include any of the evidence given over many days by the witnesses called before the Magistrate, does not disclose what the basic concept of manipulation is, what is the meaning to be taken into account and whether or not Mr Laughlin would have anything to say about whether or not the procedures adopted by the Hargraves were in breach of the true meaning of the word. 14 It does not seem to me that it has been disclosed that the Magistrate erred in law in ruling that Mr Laughlin does not have any special knowledge which can be of assistance in the proceedings. 15 There are two reasons why, even if I otherwise agreed with counsel for the Hargraves, I would refuse to make an order. The first is that s 65, in my view, does not provide relief in this type of circumstance. That is because, if an error was made by the Magistrate, it was an error made within jurisdiction. As such, prerogative relief would not be granted. Mr Aldridge has referred to me a number of decisions with respect to committal proceedings. However, committals are not judicial proceedings. They are administrative. The ordinary administrative rules apply. 16 A wrong administrative decision, even if made within jurisdiction, can be set aside. Lower courts, when they make a wrong ruling in the exercise of judicial power and if the ruling is made within jurisdiction, are generally not susceptible to review save under specific statutory provisions. In Public Service Association of South Australia v Federated Clerks' Union of Australia (1991) 173 CLR 132 at 141, Brennan J said:

"This Court has not accepted Lord Diplock's view that the distinction between jurisdictional and non-jurisdictional errors was for practical purposes abolished by the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147."

See also Deane J at 149, Dawson and Gaudron JJ at 160 and McHugh J at 166. There the Court emphasised the need to find an excess, or want of jurisdiction, in the body against whom relief was sought. 17 More recently, in Craig v The State of South Australia (1995) 184 CLR 163, the Court, constituted by Brennan, Deane, Toohey, Gaudron and McHugh JJ, made this point very clearly. At 175-176 the Court said:

"... certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'."

The Court considered what was meant by "jurisdictional error" and what was meant by "face of the record" and concluded that the Supreme Court of South Australia had been wrong in granting an order of certiorari to set aside a decision of a judge of the District Court of South Australia as the order of the judge of the District Court had been made within jurisdiction. 18 A case to the same effect but dealing with an order of prohibition was The Queen v The Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113. 19 The substance of this law applies notwithstanding that s 65 of the Supreme Court Act has provided a simpler procedure. Subsection (4) of s 104 of the Justices Act does allow an interlocutory order to be challenged, but only with the leave of the Supreme Court. I am inclined to agree with the point made by Mr P Saidi, counsel for the respondent, that the ruling of the trial Judge was not an order for the purposes of subsection (4) but, in any event, it seems to me that these present proceedings breach the fundamental principle that it is undesirable to fragment criminal proceedings. 20 In Sankey v Whitlam (1978) 142 CLR 1 at 25, Gibbs ACJ said, in relation to criminal proceedings:

"In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief." 21 The words used by his Honour were "most exceptional". That principle has been applied in a number of decisions of the Federal Court, commencing with Newby v Moodie (1988) 83 ALR 523. At 529, Sheppard, Morling and Pincus JJ said that, "once criminal proceedings have been commenced they should be allowed to follow their ordinary course except in exceptional circumstances". The same point was made in Smiles v Commissioner of Taxation (1992) 37 FCR 538 and Stergis v Boucher (1989) 86 ALR 174. In Smiles v Commissioner of Taxation, Morling, Beaumont and Gummow JJ said at 552-553:

"On the other hand, there are strong discretionary reasons why this Court should not intervene in the Local Court proceedings. As Mason CJ said in Vereker v O'Donovan [1988] 6 Leg Rep SL 3: 'The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us.'

A similar statement was made by Mason CJ in Yates v Wilson (1989) 168 CLR 338 at 339. Authorities such as Foord v Whiddett (1985) 6 FCR 475 at 483-486; Murphy v Director of Public Prosecutions (1985) 7 FCR 55 at 57-58; Newby v Moodie (at 528-529); Stergis v Boucher (1989) 86 ALR 174 at 192-193; and Thorp v Abbotto (1992) 34 FCR 366 at 377-378 establish that only in exceptional circumstances should this Court intervene in criminal proceedings pending in another court. See also Conwell v Tapfield [1981] 1 NSWLR 595; Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198; Imperial Tobacco Ltd v Attorney-General [1981] AC 718 at 742, 746, 752." 22 In my view, these proceedings ought not to have been brought as they have the tendency to delay the criminal proceedings. I think there is nothing in the particular ruling which raises a clear point of law which ought to be resolved by this Court. The ruling is simply one made in the course of the trial and is not itself an order having a significant effect. I would not grant the leave required by s 104(4). 23 The result of what has occurred is that Mr Laughlin will be precluded from sitting in court while other experts give their evidence. However, if, in the end, it turns out that Mr Laughlin has something relevant to say, then no doubt he will be permitted to say it. 24 For these reasons, the application before the Court must be dismissed with costs. **********

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