Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301

Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301 | Case summary | Zoe

[5]

1 The appellant, Dr Frank Kabourakis is a medical practitioner. He was the treating doctor for a patient who died. Subsequently, notification was made to the respondent, The Medical Practitioners' Board of Victoria ('the Board") concerning the treatment by Dr Kabourakis of the patient. As a consequence, the Board gave notice to Dr Kabourakis of an informal hearing pursuant to s. 41 of the Medical Practice Act 1994.

2 A panel under the informal hearing provision found that Dr Kabourakis had not engaged in unprofessional conduct. The notifier to the Board complained to the Ombudsman who recommended that the Board re open its investigation. It transpired that the panel had not been provided with a medical report of one Dr Summons with respect to the treatment of Dr Kabourakis of the patient. The Board gave notice to Dr Kabourakis of a further hearing under s. 41. The doctor, through his solicitors, informed the Board that it was functus officio.

3 Declaratory proceedings were sought by Dr Kabourakis before a judge of the Trial Division. The judge dismissed the proceedings. Dr Kabourakis now appeals that order.

4 The primary issue to be determined is whether upon the finding of the panel the matter had come to a final and binding outcome. An important component of the reasoning of the trial judge was based upon his Honour's analysis of Minister for Immigration v. Bhardwaj.[1] For the reasons stated by Nettle JA with respect to the proper application of Bhardwaj I consider the conclusion of the trial judge concerning that authority was incorrect. On that basis I would allow the appeal and make orders sought by the appellant.

5 In addition, I observe that there are sound legal policy reasons why the Board was prevented from acting as it did. A professional supervisory tribunal has special

functions and duties. In the exercise of such functions and duties the professional

integrity and standing of an individual is at risk. That is part of the supervisory system. However, the imperatives of certainty and finality underlie the system. In this matter, Dr Kabourakis was entitled to believe, quite properly, that once the finding of the panel was published, together with comprehensive reasons, the matter had reached certainty and finality.

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"25. Commencement of investigations by the Board

(1) The Board must investigate a notification made under section 22 if-

(a) the notification is not to be dealt with by the Health Services Commissioner under section 23; and

(b) the Board has not determined the notification to be frivolous or vexatious.

(2) In order to determine whether or not it is necessary to conduct an informal or formal hearing or whether or not a performance review should be carried out, the Board must conduct a preliminary investigation into the notification.

(3) The Board, of its own motion, may determine to conduct a preliminary investigation into a matter referred to in sub-section (4).

(4) If the Board believes that-

(a) the ability of a registered medical practitioner to practise medicine may be affected because-

(i) of the physical or mental health of the practitioner; or

(ii) the practitioner has an incapacity; or

(iii) the practitioner is an alcoholic or drug-dependent person; or

(b) the ability of a medical student to have direct patient contact as part of her or his course of study may be affected because of-

(i) the physical or mental health of the student; or

(ii) the student has an incapacity; or

(iii) the student is an alcoholic or drug-dependent person-

the Board may, in writing, appoint one of its members to conduct a preliminary investigation into the matter and delegate to the appointed member its power to conduct a preliminary investigation, other than its power to make determinations upon a preliminary investigation.

(5) If the Board believes that the professional performance of a medical practitioner may be unsatisfactory, the Board may, in writing, appoint a registered medical practitioner to conduct a preliminary investigation into the matter and delegate to the appointed practitioner its power to conduct a preliminary investigation, other than its power to make determinations upon a preliminary investigation.

(6) If the Board believes that a medical practitioner may have engaged in unprofessional conduct, the Board may, in writing, appoint one or more of the following-

(a) an officer of the Board;

(b) a lawyer or investigator retained by the Board;

(c) a sub-committee of the Board consisting of not more than 3 members of the Board-

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36 Section 52 governs the procedure to be followed at an informal hearing. The Panel is not bound by the rules of evidence and may inform itself in any way it thinks fit and the proceedings must be conducted with as little informality as is possible. But the panel is bound by the rules of natural justice.

37 Section 54 provides that a determination made by a panel on a hearing comes into operation on its making or at any later time stated in the determination and that it has effect as if it were a determination of the Board.

38 Section 56 provides that a panel must give reasons for a determination made under Part 3 of the Act to the practitioner who is the subject of the determination and that any person affected by the determination may apply to the panel for reasons for the determination.

39 There are further provisions within Part 3 for the conduct and consequences of a formal hearing. The major differences between formal and informal hearings are that a formal hearing is open to the public and may result in graver consequences in terms of suspension and deregistration.

The proceeding below

40 The thrust of the Dr Kabourakis's case before the judge below was that the informal hearing conducted on 30 October 2003 had heard and determined the matter of his professional conduct in the treatment of the deceased and, in accordance with s 43(1)(b) of the Act, had come to a final and binding finding or determination that he had not engaged in professional misconduct. It followed, Dr Kabourakis submitted, that the decision could not be revisited in a second preliminary hearing or otherwise except on appeal or by review for jurisdictional error. In fact, however, jurisdictional error was not alleged. The only basis on which it had been determined to hold a second hearing was that there had been a failure to furnish the first hearing with the opinion of Dr Summons (which, according to the Board, was the result of error of fact which should be corrected by means of the further hearing). According to Dr Kabourakis, it was not open to revisit the determination of the first informal hearing on that basis.

41 The judge rejected that contention. Although acknowledging the general rule that an administrative decision once made in accordance with an enabling statute cannot be revisited for error short of jurisdictional error, the judge observed that the rule yields to contrary statutory intention and, in his Honour's view, s 25(7) of the Act evinced such an intention. As his Honour put it:

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46 It was not contended that the panel who conducted the first informal hearing on 30 October 2003 committed jurisdictional error. Such if any error as attached to the panel's failure to consider Dr Summons' opinion was an error about the panel's finding of fact. In the language of Bhardwaj, the error concerned the merits of the finding; not its legality. Thus, in contradistinction to the position in Bhardwaj, the panel did not fail to perform the function or duty which was imposed on them by the statute. At worst, they made an error of fact in the discharge of their function or duty.

Common sense favours finality

47 So to conclude is not necessarily the end of the matter. For whether an error is jurisdictional or non-jurisdictional, the question of whether a decision may be re-opened to correct an error turns in the end on the meaning of the statute under which the decision is made. But, unlike the judge, I consider that the effect of the Act properly understood is that a finding of the panel is final and binding except upon appeal or review.

48 Self evidently, an administrative decision has only such force and effect as is given to it by the law pursuant to which it is made. As was pointed out in Bhardwaj, Parliament may give an administrative decision whatever force it wishes.[9] Consequently, as the judge made plain, the question in this case comes down to whether the statute manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen.[10] But, as was also said in Bhardwaj, as a rule a statutory tribunal cannot revisit its own decision simply because it has changed its mind or recognises that it has made an error within jurisdiction.[11] More often that not, the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is the paramount consideration, and the statutory scheme, including the conferring and limitation of rights of review on appeal, will be seen to evince an intention inconsistent with capacity for self correction of non-jurisdictional error. In the bulk of cases, logic and common sense so much incline in favour of finality as to permit of no other conclusion.

49 So it was in Bhardwaj, where it was perceived that the very limited rights of appeal conferred by Part 8 of the statute meant that a decision which may have involved non-jurisdictional error but was not challenged within twenty eight days was effective for all purposes.[12]

50 Similarly, in Re 56 Denton Road, Twickenham[13] which was concerned with the War Damage Act 1943 (UK) and the power of the War Damage Commission set up under the act to pay compensation to property owners who had suffered loss from enemy bombing raids on London in 1940, Vaisey J held that:

[61]

The decision in Kurtovic

55 Presumably, there are some cases which point in the opposite direction. But it may not be without significance that we were not referred to any that were directly in point. The best that counsel for the Board could offer was the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Ethnic Affairs v Kurtovic,[27] to which the judge also referred, but which to my way of thinking is of very little assistance.

56 Kurtovic was concerned with deportation and therefore with an area of administrative law that is different to most others. The legislation in question was construed as conferring on the Minister a discretionary power of deportation that was exercisable from time to time in accordance with government policy. It followed, as it was held, that it was open to the Minister following a change in government policy to deport a person even though the Minister had previously determined under the former policy but otherwise on the same facts that the person should not be deported.

57 If I may say so with respect, I see very little in that which is pertinent to the case in hand. There should be nothing relevant to the assessment of a medical practitioner's standard of professional conduct which could properly be equated to the role of government policy in the administration of the deportation power.

The revenue cases and the public interest

58 Counsel for the Board also referred to observations in Wade and Forsyth's Administrative Law which are derived from the sort of reasoning that is applied in cases concerning the assessment of rates and taxes. The general rule in such cases is that "matters decided for the purposes of one year's assessment or of one rating list do not amount to res judicata for the purposes of later assessments or lists."[28] As Wade & Forsyth observe, the rule is based on the principle that an assessing officer has a statutory public duty to make correct assessments on the taxpayer or ratepayer on each occasion that an assessment is to be undertaken, and that no estoppel can avail against him doing so. According to the learned authors:

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59 Counsel for the Board argued by parity of reasoning that the public interest in identifying and taking appropriate action against medical practitioners who have engaged in unprofessional conduct is sufficient to make the difference as between the position of the Board and the other statutory tribunals that were the subject of the cases mentioned above. They submitted on that basis that the answer in this case should be that the Board always has the power to inquire into the professional conduct of a medical practitioner and that its powers cannot be fettered by any previous exercise of its powers.

60 As I see it, however, that submission faces difficulties at a number of levels. To start with, it is not apparent to me why a principle which applies to the assessment of tax payers and rate payers on an annual or other statutory periodic basis should be taken to apply to a duty like that under s 39 to refer a matter to a hearing, which ex facie calls for a once-for-all discharge in respect of each notification the subject of investigation. As I understand the revenue authorities, the rationale of them is that, because taxing legislation contemplates assessment on a periodic basis, nothing done in respect of one period should be taken to estop or bind the taxing authorities in respect of another period. It is difficult to conceive of much of a parallel between that and the position of the Board under s 39 or the findings of a Panel under s 43.

61 In the second place, it is not clear to me how far the observations in Wade & Forsyth are intended to go. Seemingly, they start out as an argument that an education authority which has made a decision that there are not grounds of one kind to dismiss a school teacher is not precluded from later dismissing the teacher upon the establishment of other grounds. Thus expressed, the argument goes no further than that the investigation and determination of a complaint about one matter does not foreclose the possibility of investigation and determination in respect of another matter. As such it is unremarkable. But the observations appear then to go on to speak in terms of "fresh evidence", which is ordinarily conceived of as something different to "fresh grounds", and so perhaps to imply that it would be open to the authority on the basis of fresh evidence to dismiss a teacher on grounds for which it had previously determined that he or she should not be dismissed. Thus expressed, the argument seems to be that the authority could re-open a matter on the basis of fresh evidence alone. If so, it goes a long way further than the tax and rating cases on which it is said to be based.

62 In the third place, questions of the kind with which we are concerned in this appeal are ordinarily not easily to be answered by asserting the existence of a "public interest" and what "should be", unless of course the "public interest" and the what "should be" are to be found reflected in the provisions of the Act. In the language of the High Court in another but related context:

[65]

63 In the fourth place, allowing that the effect of a finding pursuant under s 43(1)(b) of the Act depends on the proper construction of the Act, and putting aside for the moment the effect of s 25(7), it appears to me that there are at least just as good reasons to conclude that the Board may not revisit such a finding as there were to conclude that the several decisions dealt with in the cases I have mentioned could not be re-opened.

The construction of Part 3 of the Act

64 I start with the general proposition enunciated in Bhardwaj that the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is more often than not the paramount consideration. It is similar to the principles of public policy which are said to be encapsulated in the maxims nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa [31] and interest reipublicae ut sit finis litium.[32] More particularly, however, to borrow from the language of Vaisey, J in Re 56 Denton Road, Twickenham, it would introduce a lamentable measure of uncertainty and so much disturbance in the minds of those unfortunate persons who have cause to complain of, or are the subject of complaint of, unprofessional conduct in the practice of medicine that the Act cannot have contemplated the possibility of such vacillations as are claimed to be permissible in such a case as the present.

65 Secondly, one may ask rhetorically where would the exercise stop if it were possible for the Board to re-open the findings of an informal hearing. If a finding might be re-opened once, then why not twice and, if twice, why not as many times as the Board determined to be appropriate (always assuming bona fides and, objectively speaking, a good reason to re-open)? In principle, there would be nothing in the way of the Board re-opening a finding on multiple occasions and for years after the events in issue.

66 Perhaps recognising the problems to which that consideration gives rise, counsel for the Board submitted that any excesses in the exercise of power to re-open the findings of an informal hearing could in an appropriate case be prevented by application for a stay of further hearing as an abuse of process. But that is not an answer to the problem. If the effect of the Act were that the Board had capacity to re-open a finding for good reason whenever and for so long as it chose, there would be no abuse of process in exercising the power for good reason whenever and for so long as it chose. Surely, the better view is that there must be a terminus and, by parity of reasoning with the analysis of Grove, J. in Walter Construction Group Limited v Fair Trading Administration Corporation, the logical place for it is the finding and determination which results from the first informal hearing.

67 Thirdly, s 45 of the Act provides that upon completion of an informal hearing the medical practitioner the subject of hearing may request that a formal hearing be held to review any findings and determinations of the informal hearing. There is, however, no corresponding provision for the Board of its own motion to convene a formal hearing to review the findings and determinations of the informal hearing. Indeed, to the contrary, s 44 of the Act implies that once the Board has determined on the path of an informal hearing it is bound by its election unless before the completion of the informal hearing it abandons the informal hearing and refers the matter to a formal hearing. Like the Professional Standards Act considered in Ping v Medical Board of Queensland, the Act appears to require the Board to decide or elect to proceed by way of informal hearing or, before the completion of the informal hearing, to refer the matter to a formal hearing and that, having elected to go down the path of an informal hearing and not arresting the process before the completion of the hearing, the Board is bound by the result.

68 Granted, it does not necessarily follow from the fact that the Board is powerless to refer the findings and determinations of an informal hearing to a formal hearing that the Board is powerless to refer the findings and determination of an informal hearing to another informal hearing. But logic and common sense tend to suggest that it was not what Parliament intended.

69 Fourthly, as was conceded by the Board, if the Board had power to refer the matter to a second informal hearing, it is at least possible that the second informal hearing would reach findings that are inconsistent with the findings of the first informal hearing and make determinations that are additional or different to those of first informal hearing. Since, however, a statutory tribunal has only those powers which are expressly conferred upon it by statute or which are necessarily incidental thereto, the second or subsequent informal hearing would lack the capacity to set aside the findings and determinations of the first informal hearing. Hence, there may be two sets of inconsistent findings and perhaps determinations and, if the Board is right, and the power to conduct further informal hearings is capable of being exercised from time to time, there might be no end to the number of times that a further informal hearing could add to the pile of inconsistencies. I am unable to accept that Parliament intended to create that state of affairs in the regulation of the medical profession.

70 In face of the difficulties to which those problems give rise, counsel for the Board submitted that a distinction should be drawn between a case like the present in which there has been a finding that the practitioner has not engaged in unprofessional conduct (which the Board contends would not have any legal consequences), and a case in which there is a finding that the practitioner has engaged in unprofessional conduct (which the Board concedes would or may have legal consequences). In the Board's submission, there is no reason why the Board should not order a second informal hearing in the first type of case even if it is to be concluded that the possibility of inconsistency means that it could not do so in the second type of case.

71 I do not find that submission persuasive either. The notion that a favourable finding is without legal effect is facile. It leaves out of account the effect on practitioner's professional standing and the appointments which might be opened or foreclosed to him or her according to his or her professional standing. If a favourable finding can be replaced with a later unfavourable finding, it means that any practitioner who has undergone a favourable informal hearing is forever tarred with the brush of suspicion that the finding may one day be reversed. It also leaves out of account the effect on the practitioner's professional indemnity arrangements; and it is to be noted that they would not necessarily be limited to the practitioner. For quite apart from the level of premiums which a practitioner may be required to pay once it is perceived that a finding is capable of being re-opened at any time, it is not difficult to suppose that some underwriters could seek to deny or reduce liability on the basis that the risk was written in ignorance of the unprofessional conduct later disclosed by the finding of the second hearing.

72 The notion that a favourable finding is without legal effect also leaves out of account the effect on innocent third parties. In the scheme of things, they could well be public or charitable institutions that have appointed a practitioner or entered into some other form of professional arrangement with the practitioner on the faith of a favourable finding and are later faced with a contrary finding from a second or subsequent hearing. It raises the spectre of arrangements of that kind being re-opened, possibly years after the event, on the basis that a previous favourable finding is later replaced by one which is unfavourable. It opens to question whether such appointors might be liable to others for having selected a practitioner who, as the results of the second hearing disclose, had engaged in unprofessional conduct.

73 Moreover, and perhaps more importantly, if it were right that the Board had power to conduct a further hearing in a case where the finding of the first hearing was favourable to the practitioner, there is no discernable basis to conclude that it would not also have the power to conduct a further hearing in a case where the finding was adverse to the practitioner. Potentially, therefore, arrangements, including arrangements for the compensation of persons for the effects of treatment ruled to have been unprofessional, would be open to be reversed when later it was found by a second or subsequent hearing that the treatment had not been unprofessional. As Kirby, J. put it in the different context of Bhardwaj:[33]

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I am unable to accept that such an outcome was intended.

74 Fifthly and finally, the fundamental premise of the Board's argument is that, because the Board's function is to protect the public, and because a mistake in the conduct of a preliminary hearing could result in prejudice to the public, it must be assumed that Parliament intended the Board to be able to correct such mistakes. On that basis it is argued that, since the Act does not give the Board a statutory right of appeal or review, Parliament must have intended the Board to be able to refer a matter to a second or further informal hearing and thereby, in effect, correct any mistakes in that fashion. So, it is contended, it must also be assumed that Parliament intended the Board to be able to refer a matter the subject of a formal hearing to a further formal hearing. In my view, however, there are two answers to that.

75 The first is that there are mechanisms for correction of errors. Although an informal hearing may not be litigation inter partes, and the notifier is not a party, the notifier is involved. Under s 39(d) of the Act the notifier must be served with notice of an informal hearing. Under s 57(4) of the Act, the Board must notify the notifier of the time and place of the hearing, of whether the notifier has any right to make submissions, and the findings and determinations of the panel, within 28 days of being made. Under s 56 of the Act, a person affected by a determination of a panel may apply for reasons for the determination, and authority establishes that, generally speaking, the family of a deceased are persons affected.[34] Under s 60(1)(d) a person affected has a right of appeal against a finding or determination made at a formal hearing. Admittedly, there is no such right of appeal in relation to a finding or determination of an informal hearing. But such a finding or determination is susceptible to judicial review at the instance of a person affected, for both jurisdictional error and non-jurisdictional error on the face of the record, under either the Administrative Law Act 1978 or by way of proceedings for an order in the nature of certiorari or quo warranto pursuant to Order 56 of Chapter 1 the Rules of Court. In short, therefore, to borrow again from the language of Kirby J in Bhardwaj:

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76 The second answer is that, inasmuch as the Act does provide expressly for rights of appeal and review and expressly limits the times in which they may be activated, it implies that the Board does not have some overriding power to treat findings and determinations which are otherwise final and binding as being for ever provisional. The structure of Part 3 of the Act, and in particular the detailed provisions of it which identify the steps to be observed in referring a matter to an informal or informal hearing and the way in which panels are to go about making findings and determinations, bespeak a conclusion that such of those findings and determinations as do not involve jurisdictional error and which are not challenged in accordance with the Act or by way of judicial review within the time limits that apply are effective for all purposes notwithstanding they may involve reviewable error.[36] In such circumstances, I regard it is inappropriate to postulate a residual power in the Board to revoke earlier findings and determinations of a Panel made in formal compliance with the provisions of the Act or otherwise to withdraw from or retrieve it or ignore it. [37]

The effect of s 25(7)

77 It turn then to deal with s 25(7) and the judge's conclusion that it is a "stand alone power" which enables the Board to refer a matter to a further informal hearing despite that it has already been the subject of findings and determination by an informal hearing.

78 With respect, I agree with his Honour that the power conferred by s 25(7) is "stand alone" in the sense of being separate and different to the power conferred under s 39. Plainly, the Board does have power under s 25(7) to refer a matter directly to an informal hearing without proceeding via s 39. But of course the question here is not simply whether the Board has power to refer a matter to an informal hearing without first receiving notification under s 22. It is whether, having received a notification under s 22, and having referred it to an informal hearing in accordance with s 39, and the informal hearing panel having heard and determined the matter in accordance with s 42 and made a finding in accordance with s 43, there is power under s 25(7) to refer the matter to another informal hearing with the possible consequence of a different finding and determination.

79 For that purpose, the relevant inquiry is not so much one of whether the power conferred by s 25(7) stands alone in the sense of being capable of exercise without recourse to other powers, as it is of the extent to which the amplitude of the power is circumscribed by the existence of other powers. And to that extent the power conferred by s 25(7) is no more "stand alone" than any other provision of the Act. Each provision of the Act has to be read in the context of the act. More precisely, if a finding of an informal hearing panel instigated pursuant to s 39 of the Act is effective until challenged in accordance with the Act, or by way of judicial review - and for the reasons already given, I consider that it is - can it be that the power conferred under s 25(7) is broad enough to enable the finding in effect to be disregarded? Or is it implicitly limited to matters which have not previously been referred to a hearing and determined? In my view it is the latter.

80 As Gleeson, C.J. recently restated in Minister for Immigration and Multicultural Affairs v Nystrom,[38] where an apparently exhaustive provision or group of provisions deals with a subject matter in a fashion which is repugnant to another provision or group of provisions (in the sense that the two sets of provisions contain conflicting commands which cannot both be obeyed or produce irreconcilable legal rights or obligations), the incompatibility may imply that only the first provision or group of provisions was intended to apply.[39] Similarly, as his Honour observed, where one provision or group of provisions is directed with particularity to a subject matter and there is another provision or group of provisions which is of merely general application, the specificity of the former may imply that it was intended to prevail over the latter.[40] Consistently with that logic, which equates with the maxims expressum facit tacitum cessare[41] and generalia specialibus non derogant,[42] I consider that this Act is to be interpreted so as to avoid the inconsistency and uncertainty which would result if the Board had power under s 25(7) to revisit a finding of a panel under s 43. So interpreted, the effect of the Act is that, once s 39 has been invoked in respect of a matter and resulted in a preliminary hearing making a finding under s 43, there is no power under s 25(7) to refer the matter to a second hearing.

Section 40 of the Interpretation of Legislation Act

81 In the course of the judge's analysis of s 40 of the Interpretation of Legislation Act, his Honour referred to a number of decisions in which cognate provisions have been considered in other jurisdictions. One of those was the decision of the New South Wales Court of Appeal in Parkes Rural Distributors v Glasson[43] in which it was held that the effect of s 32 of the Interpretation Act 1897 (NSW) was that the power to issue a certificate under s 8(3) of the Petroleum Products Subsidy Act 1965 (NSW) could be exercised from time to time so as to add to, subtract from or reverse the result of a previous exercise of the power and, on that basis, that the issue of a new and different certificate revoked the previous certificate. On one view of the matter, Parkes suggests that an exercise of the power under s 25(7) of the Act to refer a matter to a second hearing has the effect of reversing the effect of previous exercise of power under s 39 and with it the results of the first hearing.

82 As I see it, however, that is not so. Parkes was concerned with the question of whether the power to issue certificates from time to time under s 8(3) of the Petroleum Products Subsidy Act carried with it power to rescind and replace previous exercises of the power to issue certificates under s 8(3). In point of principle that is a different question to whether the power to act from time to time under one section of an act (such as s 25(7) of the Act) carries with power to rescind and replace previous exercises of another power under another provision of the Act (such as s 39). Nothing in Parkes suggests that the power to exercise a statutory power from time to time imports a power to rescind and replace previous exercises of a different statutory power.

83 I also respectfully take leave to doubt some of the reasoning in Parkes; for as appears from the reasons for judgment of Glass JA, with whom Samuels and Priestly JJA agreed, the decision was to some extent based on the idea, which was said to be supported by Lawrie v Lees,[44] that the ability conferred by s 8(3) to exercise a power "from time to time" implicitly imported a power to add to, subtract from or reverse the result of a previous exercise of the power to issue a certificate "from time to time" pursuant to s 8(3). As Glass JA put it:

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84 While, however, it is true that Lawrie v Lees did hold that a power exercisable from time to time may be so exercised as to add to, subtract from or reverse the result of the previous exercise of the power, it needs to be understood that the case was concerned with the power of the Lord Chancellor under s 3 of Sir H. Meux's Settled Estate Act 1863 to make orders " from time to time" for the purposes of administering the affairs of the partnership of which Sir Henry Meux was a member before he became a lunatic. With respect, it is drawing a long bow to conclude that, because the Lord Chancellor's power to make orders from time to time for the purposes of the administration of a lunatic's estate imported power to add to vary or revoke a previous order, the effect of s 32 of the Interpretation Act was to enable to the repository of the power to issue certificates under a provision like s 8(3) of the Petroleum Products Subsidy Act to revoke and replace an issued certificate. The decisions in Re 56 Denton Road, Twickenham, Walter Construction Group Limited v Fair Trading Administration Corporation, Export Development Grants Board v EMI (Australia) Ltd, and Firearm Distributors v Carson all suggest the contrary.

85 Furthermore, and assuming for the sake of argument that a power to make an order "from time to time" does import an ability thereby to add to, subtract from or reverse altogether a previous order made in exercise of the power, nothing in Lawrie v Lees suggests that it includes a power to reverse matters and things done pursuant to a previous order as opposed to the order itself. The question in issue in Lawrie v Lees was whether the Lord Chancellor could make an order authorising the lunatic's committees in lunacy from time to time to execute leases on behalf of the lunatic or whether his Lordship was bound to make a separate order upon every occasion that a lease came to be entered into. Unsurprisingly perhaps, it was held that he was empowered to make compendious orders authorising the committees to execute leases on behalf of the lunatic whenever the leases were approved of by other partners. But no one suggests that the Lord Chancellor's power to authorise entry into leases from time to time, even allowing that it extended to revoking previous exercises of the power, enabled his Lordship to rescind leases entered into by the committee in accordance with a previous order.

86 So too here. Even if s 40 of the Interpretation of Legislation Act enables the Board to exercise from time to time the power conferred by s 25(7) and thereby to add to, subtract from, or reverse previous exercises of the power, it says nothing to suggest that the Board could thereby annihilate the effects of a finding made by a panel in the determination of a hearing undertaken pursuant to a previous exercise of the power conferred by s 25(7) and a fortiori nothing to suggest that the Board could thereby annihilate a finding made by a panel in the determination of a hearing undertaken pursuant to referral made by the Board in exercise of the power conferred by s 39.

Res judicata and issue estoppel

87 Finally, I should mention that counsel for Dr Kabourakis placed a degree of emphasis on the doctrines of res judicata and issue estoppel. They submitted that both applied to the finding of the first informal hearing that Dr Kabourakis had not engaged in unprofessional conduct, with the result that the finding constituted a determination in rem good against the world at large.

88 In my view, however, it is unnecessary to express a concluded view about that. Neither doctrine could apply in this case unless the effect of the Act were that the finding of the first informal hearing was final and binding, and equally, if that be the effect of the Act, it must follow that the power conferred by s 25(7) does not extend to rescinding or revoking the finding. Since, as I interpret the Act, its effect is that the panel's finding was final and binding, res judicata and issue estoppel can add nothing to the utility of the analysis.

89 It is sufficient to determine this appeal that, upon the proper construction of the Act, and in the absence of jurisdictional error, the Board does not have power under power under s 25(7) or otherwise to refer the matter the subject of the informal hearing panel's finding to a second hearing.

Conclusion

90 In the result, I consider that appeal should be allowed. The judgment below should be set aside and in lieu thereof there should be a declaration to the effect which is sought.

At a glance

Court

Decision date

Before

Source

Judgment (76 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (19)