Medical Board of Queensland v Byrne [1958] HCA 40

Medical Board of Queensland v Byrne [1958] HCA 40 - HCA 1958 case summary — Zoe

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v because he had not been heard or given an opportunity of b Brewt. heard by the Medical Board on the issue whether the offences which he had been convicted were deserving of disciplinary punish ment. The Medical Assessment Tribunal constituted by Philp overruled the objection and found the respondent guilty on each charge and further found that he knew the statements to be fi and that consequently he deserved substantial punishment. It w ordered that his registration as a medical practitioner be suspended for three years. At the request of the respondent, Philp J. stated a case for the opinion of the Full Court of Queensland. Paragraph 4 of case stated was as follows : - Before the Medical Board formed the opinion as set out in each of the charges the practitioner was not heard by the said Board nor was he given an opportunity to be heard by the said Board. Upon these facts the practitioner objected that the Tribunal had no jurisdiction to hear the said charges. Theld - that these facts did not deprive me of jurisdiction to hear the said _ charges " and par. 4 was : - '" The practitioner in making the false statements as alleged in the charges knew them to be false and I considered that fact in imposing punishment." A copy of the grounds of the decision of the tribunal was annexed to the case stated and contained this paragraph : - '' The evidence placed before me clearly established that the practitioner had been convicted as _ alleged i in each charge and that the Board was of the opinion alleged in each charge. I therefore find the practitioner guilty on each of - the said charges." The questions in the case stated for determina- tion were : - " (1) Was I wrong in law in holding that despite the - matters set out in par. 4 hereof I had jurisdiction to hear the charges ? (2) Was I wrong in law in finding the practitioner guilty on the said charges ? (3) Was I wrong in law in holding that on the question of punishment I could consider the fact that the practitioner ; knew the false statements to be false ? (4) Was there (a) any evi- dence ; or (b) sufficient evidence to support a finding that when the - practitioner made the false statements he knew them to be false? (5) What should be done or ordered by the Full Court of the Supreme - Court of Queensland or by the Medical Assessment Tribunal in the : premises ?

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D. Casey (with him W. 7. Campbell), for the respondent. The tribunal and the majority of the Full Court were correct in their construction of s. 37 (1). If the opinion of the board is only a condition precedent to the launching of the prosecution by the board it would be redundant because that was already provided for in the introductory par. (1) of the sub-section. The words in s. 37 (1) (iii), "in the opinion of the Board" apply equally to indictable offences as to non-indictable offences. [He referred to Re Hodgkinson (2).] The opinion of the board has been made an element in the offence and it must be alleged in the charge and when alleged it is conclusive. The introductory words of s. 41 (1) are not against this construction of s. 37 (1), because the tribunal although bound by the opinion of the board that the offence is one for which he should be subjected to disciplinary punishment, has itself to find that the practitioner committed the offence in respect of which he is charged before it can find him guilty of the charge laid by the board. Section 37a supports rather than detracts from the contention that the practitioner should have been heard by the board before it formed its opinion because it is purely a punishment section substituting the board for the tribunal as the body to impose - it on minor matters. An investigation in accordance with the principles of natural justice is contemplated. There is no reason why the opinion of the board that the offence is one for which the practitioner should be subjected to punishment, should not be required in the case of an indictable offence. It was not the inten- tion of the legislature to leave the matter entirely in the hands of the professional body to express its opinion without hearing repre- sentations from the practitioner concerned. That would cut right across fundamental principles. Unless the right to be heard, where a man is being affected in his status, is expressly and clearly taken away, the law will provide the necessary protection by insisting on the observance of the principles of natural justice. The judicial function under s. 37 (1) is split into two parts. The part given to the tribunal has to be exercised as such by calling the practitioner before it and giving him the right to be heard. The part of that

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respondent in the course of his practice. As they were non- table offences, the board averred in the charges that in its inion the respondent should be subjected to disciplinary punish- under The Medical Acts for the offences. The tribunal, which was constituted by Philp J., found the pondent guilty of the charge made against him in respect of each e and suspended his registration as a medical practitioner for ee years from the day on which the decision was given. Secon 43 (1) provides for an appeal by case stated from a decision f the tribunal. Upon the application of the respondent, Philp J. a case in reference to the proceedings. The Full Court of the me Court, in the exercise of the powers contained in s. 45, ned the case stated and ordered the findings of the tribunal e suspension of the respondent's registration be set aside. The question of fundamental importance involved in the appeal from the words of s. 37 (1) (iii) referring to the opinion of the al Board as to an offence which is not indictable. Before the nal, an objection to its power to proceed was raised on behalf 'the respondent, because he had not been heard or given an tunity to be heard by the board, on the issue whether the of which he had been convicted are deserving of disciplinary mishment. This objection did not extend to any question as to tight to be heard by the board, on the issue whether he had been of the offences or whether they are indictable. It was ontended for the respondent that because he had not been heard an opportunity to be heard on the former issue, the tribunal d no jurisdiction to hear and determine the charges made against Philp J. overruled the objection. His Honour found the respondent guilty of the four charges. In finding him guilty, his Honour said: "The evidence placed jefore me clearly established that the practitioner had been con- d as alleged in each charge and that the board was of the on alleged in each charge. I therefore find the practitioner ilty of each of the said charges ". 'The learned judge then proceeded to consider the evidence to the breaches of the Repatriation Regulations of which the pondent had been convicted in order to determine the punishment bh the respondent should receive. As already stated the tribunal ed that the respondent's registration as a medical practitioner

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fan indictable offence, or has been convicted in any other part of s Majesty's dominions or elsewhere of an offence which would be dictable if committed in Queensland, or has been convicted in and or in any other part of His Majesty's dominions or here of any other offence for which in the opinion of the Board : should be subjected to disciplinary punishment under this Act ; (iv) Is guilty of misconduct in a professional respect, it may proceed to have the medical practitioner concerned charged accord- ingly before the Tribunal and, upon so doing shall have the conduct of the charge as prosecutor: Provided the Tribunal shall not order that the name of any medical practitioner (including any specialist) erased from the register under paragraph (1) or paragraph (ii) is sub-section except with respect to a withdrawal or cancellation a a qualification or an erasure of a registration which, if it had d in Queensland, would have been an adequate cause for the e of the name of the medical practitioner concerned from the er." It will be seen that s. 37 (1) (iii) refers to (1) convictions Queensland of any indictable offence ; (2) convictions in any other of Her Majesty's dominions or elsewhere of an offence which would be indictable if committed in Queensland ; and (3) convictions Queensland or elsewhere of any other offence for which in the of the Board a medical practitioner should be subjected to disciplinary punishment under the Act. Each of the charges against the respondent was concerned with offences in the last category and the notice which was served upon him the substance of each ge was preceded by a recital that the charge against him was he had been convicted in Queensland of an offence for which in the opinion of the board he should be " subjected to disciplinary nishment under The Medical Acts aforesaid'. Initially, at least, appears to have been assumed that the concluding provisions of 37 () (iii) confer upon the board a power to make a final and finitive finding that a particular offence is one calling for disciplin- unishment under the Act. On that view, it was said, the on of the board, once formed, is not open to question in sub- 'sequent proceedings before the tribunal and this circumstance was upon by the respondent to found the contention that he should been given an opportunity of being heard before the board ed its opinion concerning each of his several convictions. To form the opinion which it did without prior notice to the respondent a8, it is contended, contrary to natural justice. This argument before the tribunal but in the Full Court the learned Chief ce took the view that in forming its opinion the board " was in a judicial capacity " and that " the opinion of the board

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Judgment (75 paragraphs)

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