Mann v Medical Practitioners Board of Victoria [2002] VSC 256

9. Subsequent to the decision, letters were sent to the applicant and to the relevant complainant advising of the decision. The letter to the complainant contained an unfortunate typographical error, substituting the word 'impudent' for the word 'imprudent'.

12. A complaint concerning professional conduct must be heard pursuant to s. 24 of the relevant Act. Section 24(1) provides as follows:

"The Board must investigate a complaint if the complaint concerns the professional conduct of a registered medical practitioner and if the complaint is not to be dealt with by the Health Services Commissioner under s. 23 or the Board has not determined the complaint to be frivolous or vexatious."

16. By sub-section 2 of section 24, the Board was required to conduct a preliminary investigation into the complaint. Section 24(2) provides:

"In order to determine whether or not it is necessary to conduct a formal or informal hearing into a complaint, the Board must conduct a preliminary investigation into the complaint."

20. Sub-section 3 of section 24 further gives the Board power to delegate the conduct of a preliminary investigation to the persons there specified.

23. Section 25 provides for the outcome of a preliminary investigation.

26. In the present case, I was informed that the Board made a preliminary investigation and determination itself after having received an inconclusive report following a preliminary investigation by a delegate. The ultimate conclusion expressed in the preliminary determination was favourable to the applicant but he takes issue with the terms in which it was expressed.

29. I find that the actual sending of the letters advising of the Board's decision, including the unfortunate slip in terminology, constituted administrative actions which are not susceptible of judicial review under Order 56. I accept, however, that a determination made under ss. 24 and 25 of the Act might, in appropriate circumstances, be the subject of such review.

32. I find that the critical matter complained of in the Board Minute of 3 October 1996 is properly characterised as a reason for the Board's decision, namely the statement: "The Board did find his language to be intemperate but that action stopped short of constituting unprofessional conduct."

35. Order 56 of the Rules of the Supreme Court requires that an originating motion of the type before me state the grounds upon which relief is sought. No such grounds are stated but, as I understand the applicant's basic complaint, it is that the defendant had no power to express the conclusion which it did with respect to intemperate language. The matter was expressly argued before me as raising issues going to power and not raising issues going to procedural fairness. In my opinion, however, it is difficult to accept other than that although the Board was not required to give reasons for its preliminary determination or to make findings of material fact, it was entitled to give short reasons to the complainant and include in those short reasons a response to the facts relied on by the complainant. In my opinion such a course fell within the powers granted by s. 66(1) and (2) of the Act. Further, in my opinion, the first stated purpose of the Act supports the view that it is to be applied and interpreted for the benefit of the public.

38. This view is supported by the observations of the President of the Court of Appeal with respect to the defence of qualified privilege which was raised in defamation proceedings arising out of the letters in issue before me. The matter went to the Court of Appeal in the first instance following a ruling in the County Court as to the availability of a defence of absolute or qualified privilege. Winneke P (with whom Buchanan and Chernov JJ.A concurred) said at p. 625 of the relevant report, which is to be found in [2000] VSCA 89; (2000) 1 VR 609:

"By investing the Board with certain powers and obligations, the Parliament has created the circumstances in which a privileged occasion will or might arise, but as I see it, it does not intend to proscribe the limits or the scope of that occasion. If it were otherwise, the Board would be prevented from the proper exercise of its powers and the fulfilment of the duties imposed upon it. The circumstances of this case point up the problem. The Act imposes the duty on the Board to investigate complaints made to it by members of the public about the conduct of registered medical practitioners. It invests in the Board the power to make a determination either to refer the complaint for hearing or not to proceed further with its investigation. The Act does not descend to the detail of directing the Board to inform the complainant of its determination not to proceed or to prescribing the limits of the information to be provided. Those limits, as I have said, will be prescribed by the nature of the relationship existing between the Board and the complainant and the scope of the common interest or duty arising from that relationship. It would, I think, be illogical and potentially destructive of the relationship if the Board were to be confined to informing the complainant that it had determined not to further investigate his complaint without informing him of its reasons for so concluding."

42. Likewise, when the matter again went to the Court of Appeal following the trial of the defamation proceeding, Brooking JA approved of the passage from the judgment of His Honour Judge Hanlon, the trial judge which is to be found at p. 255 of the Appeal Book which was exhibited before me.

"The practice in the past, so the material indicates to me, of simply announcing what the decision was and going no further had been the subject of some criticism and, in my view, justifiable criticism. So the Board adopted a view which was at variance with the previous practice and has in more recent times adopted the course of explaining the reason why it reached its decision. [I interpolate that there was evidence that criticisms by the Ombudsman had led the Board to explain its decisions.] It is my opinion that in doing so the Board is quite clearly exercising the power and authority given to it under the Act and is acting responsibly and in the best interests of the public which it is trying to protect or has the charge of protecting under the Act. It is clearly the duty of the Board to set out the reasons why, in particular, when a complaint has been made and the Board has decided not to take any action about it of disciplinary nature against the medical practitioner concerned, to explain to the complainant and to all those who might have some interest in the subject, why it reached the decision it did. To my reading of the minute and the letters, they are saying no more in the ultimate than: the language which had been employed by Mr Mann, whilst not amounting to professional misconduct, was language which could have been improved upon; it was intemperate - and the Board's words in his action approaching the client was 'imprudent' but actually printed and sent was 'impudent'. The Board's conclusion that it did not amount to professional misconduct or unprofessional conduct was a conclusion which was justified, in my view, in the circumstances. But it was also justifiable in the circumstances that the Board should note that the exchange between Bailey and Mann deteriorated as time went by, as is demonstrated more clearly by reading the correspondence, than any words of mine can describe. It is there for all to see and that is why I have set it out at such considerable length. It was germane, in my view, to the Board 's function that its reasoning path should be explained, particularly to the complainant and particularly, in circumstances where the Board expresses itself, to be able to understand why it was that Mr Bailey became 'aggrieved' in the circumstances. Whilst the Board could understand his aggrievement it was germane, in my view, for them to point out that their authority was to impose disciplinary action for unprofessional conduct and the choice of words, whilst regrettable, are not choice of words that they would have recommended, was that Mr Mann 's way of expressing himself. It was a way that they did not commend and did not enhance the reputation of its profession. This seems to me to be a wholly acceptable line of conduct on the part of the Board and for that reason and in conformity with the test as set out in the judgment of the President in this case, it was in my view, quite clearly an occasion covered by a qualified privilege."

46. Brooking J.A (with whom Batt and Chernov JJ.A concurred) stated:

"34. I think the judge was right. In my opinion the defence of qualified privilege awarded defendants under both the Law of Victoria and that of New South Wales, unless malice was established by the plaintiff. I reject Mr Mann's contention that the Board was not acting in the exercise of its statutory power."

50. It follows that I do not regard the basic point raised by this application as having any real prospect of success. I have reached this view despite the comments of Kirby J in the High Court, made when the applicant sought special leave to appeal in the defamation proceedings against the Board. Kirby J said at p. 4 of the relevant transcript:

"Can I ask you did you ever take any steps to challenge, to have set aside under administrative law, the finding of the Board as distinct from suing them for defamation which raised the questions of qualified privilege? After all, they are only members of the profession who are trying to perform their duties part time and I doubt if they are being paid much, if anything, for doing so. So that why would not the appropriate legal remedy in this case be to set aside their purported reprimand as being outside their power, as distinct from suing them for defamation?" (See also pp. 5, 6 and 7 of the transcript.)

54. In order to proceed by way of originating motion, the applicant requires leave pursuant to Order 56 Rule 2. This provides:

"1. A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose. 2. Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding. 3. The court shall not extend the time fixed by paragraph 1 except in special circumstances."

58. It is to be observed that sub-Rule 3 is couched in negative terms and in effect casts the onus on the applicant to positively satisfy the court that special circumstances exist. It is the clear intent of the Rule to recognise that administrative decisions and the decisions of inferior courts and tribunals must at some point be regarded as having reached practical finality.

61. It is not, in my view, appropriate to seek to judicially define the meaning of the phrase 'special circumstances' in the relevant Rule. The phrase is deliberately flexible and designed to encompass cases which might not easily be anticipated by more prescriptive words. See the authorities cited by Balmford J. in the case of Prencipe v Masel as set out by Balmford J in Carra v Hamilton[1]. See also Jess v. Scott (1986) 12 FCR 187. I would add that I find argument as to the meaning of the phrase by reference to dictionaries and synonyms to be of little assistance. In that regard I refer to the preface to Dr Johnson's dictionary: "To explain requires the use of terms less abstruse than that which is to be explained and such terms cannot always be found ...The easiest word, whatever it may be, can never be translated into one more easy".[2]

64. Despite the above views, however, I make the following preliminary observations:

(a) Every case is special to the litigant concerned. The Rule requires the Court to be objectively satisfied that special circumstances exist.

(b) Whether special circumstances exist is a question to be determined by reference to the whole of the circumstances of a particular case. It is essentially a question of characterisation of the particular case.

(c) As Balmford J has observed in Carra v. Hamilton the Rule does not in terms limit such circumstances to those connected with reasons for delay.

(d) In my opinion, the existence of a manifest or strongly arguable case of administrative or legal error may be a relevant consideration. Thus in my view a manifest excess of jurisdiction might in some cases amount to special circumstances[3].

(e) Conversely, I accept that the demonstration of an error does not automatically result in special circumstances for if it did then there would be little practical point to the time limit contained in the Rule. Thus a defect of procedure may not amount in a particular case to special circumstances. In this regard, I refer to the decision of Beach J in Denysenko & Dessau & Anor.[4] although I would not, with respect, go as far as his Honour in discounting the existence of an apparent error of law as a potentially relevant consideration.

70. In the present case I am not satisfied the applicant has demonstrated special circumstances.

1. The delay since the decision in issue is excessive. It now approaches six years. It would require a very strong case of countervailing circumstances to justify the grant of leave in this situation. This is not a case of some overshooting of the time limit but of massive non-compliance.

2. The fact that the applicant has pursued alternative remedies, first by way of defamation proceedings and, second, by way of application to the Victorian Civil and Administrative Tribunal, does not justify the delay which has occurred. The resort to this court appears to have occurred only as a last option.

3. The ultimate conclusion expressed by the Board was not adverse to the applicant. This makes the concept of a vitiating error in the Board's conduct in this particular case very problematic. It also mitigates against the notion that this is a special case.

4. I do not accept that the fundamental proposition relied on by the applicant as to excess of power is correct or indeed strongly arguable.

5. The statements of Kirby J. made in the High Court when the applicant sought to appeal the outcome of his defamation proceedings, are not to be taken as more than an indication of a form of proceeding that the applicant might have taken as an alternative to defamation proceedings. They are not to be taken as statements of concluded views as to the powers of the Board or as to the appropriateness of future proceedings in this court.

6 The Board was under no obligation to give legal advice to the applicant, although I might observe that the defences it raised to the defamation proceedings might be thought to have pointed directly to the question of the Board's powers.

7. Professed ignorance for some time on the part of the applicant and his professional advisers with respect to the remedies potentially provided under Order 56 of the Rules of this Court does not, in my view, constitute special circumstances.[5]

80. Lastly, I should add that for the above reasons I would not have been prepared to exercise my discretion to extend time in the present case, particularly given the extent of delay involved, even if my discretion were not conditioned by a requirement for special circumstances.

83. Accordingly, the appeal before me will be dismissed, and I order that the plaintiff pay the defendant's costs of the appeal to be taxed.

[1] [2001] VSC 215; (2001) 3 VR 114

[2] Cozens v. Brutus [1972] UKHL 6; [1973] AC 854 at 867

[3] Compare the decision of Gillard, J in Prime Minister John Piss the Family Court and Legal Aid v Electoral Registrar for the State District of Carrum & Anor. No. 4556 of 1999.

[4] [1996] VicRp 65; (1996) 2 VR 221

[5] Compare the decision of the Family Court in Lawecki v Marcel Kalfus [1985] FLC 91-644.