//
[2007] QSC 271
General information, not legal advice.
Supreme Court of Queensland
2007-10-04
Daubney J
Original judgment source is linked above.
[1] On 22 December 2006 the applicant, Medical Board of Queensland (the Board) wrote to the respondent, Dr Lip, advising that at its meeting on 21 December 2006:
The Board resolved, pursuant to s 59 of the [Health Practitioners (Professional Standards) Act 1999 (Qld)], to suspend your registration as it reasonably believes that you pose a serious potential risk to the wellbeing of vulnerable persons and that immediate action is necessary to protect vulnerable persons.
[2] On 4 January 2007, Dr Lip appealed against this decision to the Health Practitioners Tribunal (the Tribunal), as he was entitled to by reason of s 325(1)(a) of the Health Practitioners (Professional Standards) Act 1999 (Qld) (the Act).
[3] The appeal was heard by the Tribunal on 14 March 2007. On 29 March 2007, the Tribunal allowed the appeal, and set aside the Board's decision to suspend Dr Lip's registration upon him entering into an undertaking to limit his practice to his private practice.
(a) The Tribunal's decision was invalid and void; and
(b) The Board's decision made on 21 December 2006 continues in force and effect.
The Board seeks, in the alternative, an order in the nature of certiorari setting aside the Tribunal's decision.
[5] Part 9 Division 5 of the Act provides for appeals from the Tribunal to the Court of Appeal, but only if a decision is an 'appealable decision' under s 346. The decision of the Tribunal on an appeal from a decision such as this under s 59(2) is not an 'appealable decision'.
(a) in determining the appeal against the Board's decision, the Tribunal was exercising an administrative, not judicial, function;
(b) the Tribunal's decision was infected by jurisdictional errors;
(c) these jurisdictional errors were material to the Tribunal's decision such that, but for the errors, the Tribunal's decision would have been, or might have been, different; and
(d) the jurisdictional errors are such as to invalidate the Tribunal's decision and, as a consequence, the Board's original decision still stands.
[7] On 20 December 2006, the Board, acting through the Professional Standards Unit of the Office of Health Practitioner Registration Boards, called on Dr Lip to show cause why his registration should not be immediately suspended pursuant to s 59 of the Act. The 'show cause' notice stated:
The Medical Board of Queensland (the Board) has received information from the Health Quality and Complaints Commission (HQCC) about your professional conduct in relation to your failure and/or refusal to attend Murgon Hospital within a reasonable time to treat emergency patients when you were on call to do so. The information also raises concerns about the appropriateness of treatment provided when you did attend the hospital.
The Board considered the HQCC preliminary report at its meeting on 19 December 2006 (copy attached). In particular, the Board noted that:
Particulars of each of the above incidents are detailed in the HQCC preliminary report.
The Board reasonably believes that you pose a serious potential risk to the wellbeing of vulnerable persons in that:
Owing to the serious nature of the allegations and in accordance with the Board's responsibility to the public under the Health Practitioners (Professional Standards) Act 1999 (the Act), the Board resolved that you be invited to "show cause" why your registration should not be immediately suspended pursuant to Section 59 of the Act.
[8] The show cause notice called for a response by 12 noon on 21 December 2006.
[9] On 21 December 2006 Dr Lip's solicitors responded on his behalf. That response included some preliminary observations on the circumstances relating to each of the patients in question, and continued:
Given the short time frame and lack of access to relevant documents it is impossible to provide a comprehensive submission on behalf of Dr Lip. However, it is submitted that it is not reasonable or necessary to suspend Dr Lip's registration pursuant to s 59 of the Health Practitioners (Professional Standards) Act 1999.
The allegations contained in the preliminary report and the notice to show cause all relate to Dr Lip's alleged failure or refusal to attend Murgon Hospital within a reasonable time to treat emergency patients when Dr Lip was on call to do so.
While it is stated in the notice to show cause that "given the seriousness of the conduct described, the Board's concerns are not limited to patients admitted to Murgon Hospital but extend to your ability to appropriately manage patients in your private practise" [sic], there is no complaint about Dr Lip's management of patients in his private practise [sic]. There is no suggestion that any of Dr Lip's private patients have been treated inappropriately or that they are at any risk from Dr Lip's treatment.
Dr Lip has practised as a medical practitioner for a lengthy period of time. The complaints which have been made arise solely from Dr Lip's alleged failure to attend Murgon Hospital to treat emergency patients from October 2005, shortly after the temporary closure of the Wondai Hospital in August 2005.
Dr Lip has been suspended from duty as medical superintendent of the Murgon Hospital by Queensland Health pending the outcome of an investigation into the death of Mr Krog. Dr Lip has no intention to practise at any other hospital and is prepared to provide an undertaking to this effect.
Accordingly, in the absence of any evidence that Dr Lip poses a serious potential risk to the wellbeing of the patients of his private practice, it is submitted that to suspend Dr Lip would not be the least onerous action to protect vulnerable persons and that it is unnecessary to suspend Dr Lip.
[10] On 21 December 2006 a special meeting of the Board was held at 5.05 pm to consider the submissions made by Dr Lip in response to the show cause notice. The minutes of that meeting relevantly record:
(i) the Board reasonably believes that Dr Lip poses an imminent threat to the wellbeing of vulnerable persons and immediate action is required pursuant to Section 59(2) of the Health Practitioners (Professional Standards) Act 1999;
(ii) the Board considers that suspension is the least onerous action necessary to protect the vulnerable persons;
(iii) pursuant to Section 60(2)(a) of the Act, it be recorded in the Board's register that Dr Lip's registration has been suspended;
(iv) the Board investigate the matter pursuant to Section 59(4)(a) of the Act and an investigator be directed to investigate the matter pursuant to Section 64(1)(b) of the Act;
(vi) Dr Lip, foreign regulatory authorities, and the Health Quality and Complaints Commissioner to be advised accordingly.
[11] That decision was communicated to Dr Lip in the letter dated 22 December 2006 to which I have referred. After advising Dr Lip of the Board's decision, the letter continued:
In relation to the submissions made on your behalf:
The Board's decision takes effect on the date of receipt of this notice.
[12] On 4 January 2007 Dr Lip filed a notice of appeal with the Tribunal against the Board's decision to suspend his registration. The notice of appeal stated that the grounds for the appeal were:
[13] The appeal was heard on 14 March 2007 by the Tribunal, constituted by her Honour Judge Richards, assisted by Dr Goode, Dr Burkett and Mr McKenzie. The Tribunal's decision was delivered on 29 March 2007. It is convenient, for a brief statement of background, to quote from the opening paragraphs of the Tribunal's reasons:
[1] The appellant, Dr Lip, is a medical practitioner and has been in general private practice since 1970, largely at Wondai in the South Burnett district.
[2] From January 1970 to July 2005 he was also medical superintendent with a right to private practice at the Wondai Hospital. As part of those duties he was required to be on call when the medical superintendent at Murgon Hospital was unavailable or on rostered days off.
[3] On 29 July 2005, Wondai Hospital was closed for redevelopment and all patients were redirected to Murgon Hospital. Dr Lip then became one of the medical superintendents at Murgon Hospital treating those patients who would have normally attended at the Wondai Hospital.
[4] Dr Lip's treatment of patients at Murgon Hospital has been called into question. In April 2006, a review of his treatment of patients Wilson, Whitbread and O'Sullivan was carried out and recommendations were made in relation to his performance as a result.
[5] On 22 August 2006 Paul Krog died at Murgon Hospital. No autopsy has been performed and therefore no definitive cause of death has been established. However, Dr Lip's actions on that day raised enough concerns that a complaint was made by Queensland Health to the Crime and Misconduct Commission which, in turn, referred the matter to the Health Quality and Complaints Commission for a preliminary investigation. As a result of that investigation it was decided that Dr Lip should be suspended form further practice pending a full investigation.
[14] After referring to the grounds of appeal and the provisions of s 59 of the Act, the Tribunal said:
[8] This appeal, although it is by way of rehearing under s 331 of the Act, is nonetheless a decision based on untested facts and pending further investigation. This brings a different complexion to these proceedings in contrast to a normal disciplinary hearing:
"It is not the purpose of these proceedings to determine whether the allegations against the appellant have been established. Nor is it possible, in the absence of a full evidentiary hearing, to make any real findings as to the veracity of the individual complaints. It is however necessary to make some assessment of the strength of the case against the appellant based on the material available to the Board in reaching its decision to suspend the appellant's registration as a medical practitioner." See Thurling v Medical Board of Queensland [2002] QHPT 004 per Judge O'Brien at para 5.
[15] The Tribunal then set out the facts relating to the four patients whose circumstances had given rise to the decision to suspend Dr Lip's registration, dealing in particular detail with the circumstances relevant to the case of Mr Krog. In the course of that discussion, the Tribunal noted:
[31] Preliminary medical opinions were obtained which indicate that Dr Lip underestimated Mr Krog's condition, that he should have attended at an earlier stage and that the blood tests should have alerted Dr Lip to the fact that Mr Krog was seriously ill and needed immediate attention.
[16] The Tribunal then proceeded to discuss the merits of Dr Lip's appeal in the following terms:
[32] There is clearly a case to consider whether Dr Lip has acted in a way that posed a potential risk to the wellbeing of vulnerable persons namely the people attending the Murgon Hospital Accident and Emergency Care Department. The Board maintains that Dr Lip's actions represent a pattern of entrenched behaviour. Queensland Health had tried to counsel him and had tried many avenues to induce him to comply with then necessary standard of patient care. The Board claims that the fact that there have been no such complaints from his private patients simply demonstrates either a callous disregard for his public patients over his private patients or patient care of a very poor standard in relation to the four named patients.
[33] It is clear from the facts outlined above that Dr Lip had been told on a number of occasions that his treatment of the patients at the Hospital and his failure to attend the Hospital as requested by the nursing staff was unacceptable to Queensland Health.
[34] However, the question on appeal is whether the decision to suspend Dr Lip's registration is action that is the "least onerous necessary to protect the wellbeing of vulnerable persons".
[35] No doubt there are significant concerns in relation to Dr Lip's treatment of people at the Murgon Hospital. Dr Lip himself acknowledges that Mr Krog could and should have been treated differently. However, in a case such as this the Tribunal must also bear in mind the public interest generally. [See Bayliss v The Medical Board of Queensland [2001] Qd R 598].
[38] There is no doubt that if it is established upon further investigation and hearing that Dr Lip neglected patients in the public hospital system because he did not want to disadvantage his private patients or that he neglected them because of a reluctance to drive 15 kilometres, then that conduct is reprehensible. However, the neglect of the patients at the public hospital does not seem to translate into his private practice. In part the reluctance to attend the hospital seems to be directly related to the time involved in attending a hospital in a different town. There is no suggestion that there were problems with Dr Lip attending the Wondai Hospital when it was operational.
[39] In the opinion of the Tribunal, it cannot be said that there is a serious potential risk that the wellbeing of the people in his private practice and, in fact, the potential risk to their wellbeing is aggravated by his absence from his practice at this point in time.
[17] Section 6 of the Act specifies that its objects are:
(a) to protect the public by ensuring health care is delivered by registrants in a professional, safe and competent way; and
(b) to uphold the standards of practice within the health professions; and
(c) to maintain public confidence in the health professions; and
(d) to provide a uniform system to deal with complaints, investigations and disciplinary proceedings relating to registrants, and the management of impaired registrants; and
(e) to provide a system to deal with complaints about registrants that is complementary to the Health Quality and Complaints Commission Act 2006.
[18] Section 7(b) of the Act provides that one of the means by which those objects are to be primarily achieved is by 'enabling boards to immediately suspend, or impose conditions on, registrants under certain circumstances'.
[19] The decision in this case was under s 59 of the Act, which is contained in Part 4. By s 58, the purpose of that Part 'is to give boards the power to effectively respond to serious potential risks posed by registrants to the wellbeing of vulnerable persons'.
(1) This section applies if a registrant's board reasonably believes at any time, whether on the basis of a complaint or otherwise, that -
(a) the registrant poses a serious potential risk to the wellbeing of vulnerable persons; and
(b) immediate action to suspend, or impose conditions on, the registrant's registration is necessary to protect the vulnerable persons.
(2) The board may decide to suspend, or impose conditions on, the registrant's registration.
(3) However, in making its decision under subsection (2), the board must take the action the board considers is the least onerous necessary to protect the vulnerable persons.
(7) The decision continues to have effect until the first of the following happens -
(a) The decision is set aside by the tribunal on appeal;
[21] Part 9 of the Act provides for the review of certain decisions under the Act and for appeals from certain decisions to the Tribunal or to the Court of Appeal. Part 9 Division 3 deals with appeals to the Tribunal. Relevantly, s 325(1)(a) provides that a decision under s 59(2) to suspend a registrant's registration is 'an appealable decision for this Division'. The succeeding sections provide for the machinery of commencing and giving notice of the appeal. Whilst the Tribunal has the power to grant a stay of certain appealable decisions, s 329(2) provides that the Tribunal must not grant a stay of a decision by a board under s 59(2) to suspend or impose conditions on a registrant's registration. Section 330 provides, however, that an appeal against a decision under s 59(2) must be decided by the Tribunal 'as quickly as possible'.
[22] An appeal under Part 9 Division 3 is by way of rehearing, although there is power in the Tribunal to give leave for fresh, additional or substituted evidence to be adduced: see s 331.
[23] The powers of the Tribunal in deciding an appeal are set out in s 336. By
s 336(1)(a) the power of the Tribunal in deciding an appeal against a decision under s 59(2) is limited to confirming or setting aside the decision. In the case of other appealable decisions, the Tribunal has the power, by s 336(1)(b) to confirm the decision, set aside the decision, change the decision in the way it considers appropriate, or set aside the decision and replace it with one which the Tribunal may make under s 241 or s 243.
[24] Part 9 Division 4 of the Act provides for the Tribunal to be able to review certain specified decisions of the Tribunal. Part 9 Division 5 allows for appeals to the Court of Appeal from decisions of the Tribunal but only in relation to a decision which is 'an appealable decision' for that Division. In that regard, s 346 provides:
Each of the following decisions of the Tribunal is an appealable decision for this Division -
(a) A decision under s 240(1) about whether a ground for disciplinary action against a registrant is established;
(b) A decision under s 241(2) or 243(2) to take disciplinary action against a registrant;
[25] A decision by the Tribunal on an appeal against a decision under s 59(2) is neither amenable to further review by the Tribunal nor to appeal to the Court of Appeal.
[26] The Board's submission that the Tribunal's decision ought be set aside for jurisdictional error necessarily calls for an inquiry whether, in making the decision, the Tribunal was exercising judicial power or administrative power. In
Craig v South Australia[1]1 the High Court made it clear that whether a body is exercising judicial power or administrative power is relevant to the determination of whether the body has committed jurisdictional error. The issue before the High Court was whether, on the facts of that case, a District Court judge had committed a jurisdictional error sufficient to ground an order of certiorari. The Court said[2]2
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercises, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.
[27] After noting that jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction, their Honours then enumerated various examples of the circumstances which occasion jurisdictional error by an inferior court. A submission, founded in Lord Reid's speech in Anisminic Ltd v Foreign Compensation Commission,[3] that an inferior court commits jurisdictional error whenever it addresses the wrong issue or asks itself the wrong question was rejected by the High Court, which said that
Lord Reid's comments, made as they were in the context of an administrative tribunal, should not be understood as intended to refer to a court of law.
Their Honours said (omitting references to citations):[4]
It is true that Lord Reid's comments were subsequently suggested by Lord Diplock and held by the divisional court to be also applicable to an inferior court with the result that the distinction between jurisdictional error and error within jurisdiction has been seen as effectively abolished in England. That distinction has not, however, been discarded in this country and, for the reasons which follow, we consider that Lord Reid's comments should not be accepted here as an authoritative statement of what constitutes jurisdictional error by an inferior court for the purposes of certiorari. In that regard, it is important to bear in mind a critical distinction which exists between administrative tribunals and courts of law.
[29] The Court then identified a fundamental distinction between a tribunal exercising judicial power and one exercising administrative power with this proposition:[5]
At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoratively determine questions of law or to make an order or decision otherwise than in accordance with the law.'
That point was made by Lord Diplock in Re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374 at 383:
"Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend it to do so."
The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
[31] As will be seen, it is the Board's submission in this case that the Tribunal fell into error at least by:
[32] The difficulty, if not impossibility, of identifying the absolute points of demarcation between a body exercising judicial power and one exercising administrative power has been the subject of repeated comment in the cases over many years. And when looking to the cases for guidance as to the approach to be adopted in distinguishing between judicial power and administrative power, the relative dearth of decisions which define administrative power is explained, as was observed by Evans J in Medical Council of Tasmania v Medical Complaints Tribunal,[7] by the fact that:[8]
many of the cases that have addressed what is administrative have done so in the course of distinguishing a judicial or legislative function from an administrative function' and that 'more significantly, in terms of the distinction between administrative and judicial functions, the decisive issue in the cases has been whether the function in question was judicial.
[33] So, for example, in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd,[9] the question for the High Court was whether provisions in the
Trade Practices Act 1965-1968 (Cth) which empowered the Trade Practices Tribunal to make a determination that certain agreements or practise were contrary to the public interest and to make restraining orders to enforce such a determination involved the exercise of judicial power, the Trade Practices Tribunal not being constituted in accordance with s 72 of the Commonwealth of Australia Constitution Act 1900 (Cth) (the Constitution). Justice Kitto said[10]
The question is whether the powers which Part VI thus purports to confer are within the concept of the judicial power of the Commonwealth. Questions of this general description are often difficult to decide, for it has not been found possible to frame an exhaustive definition of judicial power. But this is not to say that the expression is meaningless. The uncertainties that are met with arise, generally if not always, from the fact that there is a "border land in which judicial and administrative functions overlap" (Labour Relations Board of Saskatchewan v John East Ironworks Ltd [1949] AC 134, at 148), so that for reasons depending upon general reasoning, analogy or history, some powers which may appropriately be treated as administrative when conferred on an administrative functionary may just as appropriately be seen in a judicial aspect and be validly conferred upon a Federal Court.
[34] The focus on seeking to illuminate the concept of 'judicial power' is also apparent in the following oft-cited passage from his Honour's judgment:[11]
Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.
[35] That the eye of Windeyer J was also on 'judicial power' is clear from this statement:[12]
We are not here concerned with the nature of the judicial process but with the nature of the judicial power. A body whose primary purpose is administrative does not become a court merely because it must act judicially.
[36] Justice Windeyer canvassed the principal authorities in which statements of principle concerning 'judicial power' had been made,[13] including the judgment of Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead.[14] His Honour also referred to the following statement by Lord Sankey in the Privy Council in Shell Co of Australia Ltd v Commissioner of Taxation:[15]
The authorities are clear to show that there are tribunals with many of the trappings of the court which, nevertheless, are not courts in the strict sense of exercising judicial power.
In that connection it may be useful to enumerate some negative propositions on this subject: 1. A tribunal is not necessarily a court in the strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a court. 6. Nor because it is a body to which a matter is referred by another body.
See R v Electricity Commissioners [1924] 1KB 171.
[37] Brandy v Human Rights & Equal Opportunity Commission[16] concerned the
Human Rights and Equal Opportunity Commission, which had the power to inquire into complaints of unlawful racial discrimination pursuant to the
Racial Discrimination Act 1975 (Cth). If the Commission found that the complaint of racial discrimination was substantiated, it could make a number of determinations, including declarations that the respondent had engaged in unlawful conduct, declarations for the payment of damages by way of compensation to the claimant, and declarations that termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant. Such a determination was required to be lodged in the Registry of the Federal Court, and the Registrar was required to register it. Upon registration, the determination was to have effect as if it were an order made by the Federal Court, but no action could be taken on the order during a specified review period. The High Court held that specified sections of the Racial Discrimination Act 1975 (Cth) purported to vest judicial power in the Commission contrary to Chapter III of the Constitution, and accordingly were invalid. Once again, given the nature of the question to be determined, it is not surprising that the focus of the judgments is on 'judicial power'. Mason CJ and Brennan and Toohey JJ said (omitting citations[17]17
Although many decision-making functions may take their character as an exercise of judicial, executive or legislative power from their legislative setting, the character of the decision-maker and the nature of the decision-making process, some decision-making functions are exclusive and inalienable exercises of judicial power. As Dixon CJ and McTiernan J observed in R v Davison:
"The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under ss 71 and 72 of the Constitution."
In that statement, the expression "judicial determination" means an authoritative determination by means of the judicial method, that is, an enforceable decision reached by applying the relevant principles of law to the facts as found.
Thus, it has always been accepted that the punishment of criminal offences and the trial of actions for breach of contract and for wrongs are inalienable exercises of judicial power. The validity of that proposition rests not only on history and precedent but also on the principle that the process of the trial results in a binding and authoritative judicial determination which ascertains the rights of the parties. So, when A alleges that he or she has suffered loss or damage as a result of B's unlawful conduct and a court determines that B is to pay a sum of money to A by way of compensation, there is an exercise of judicial power. The determination involves an exercise of such power not simply because it is made by a court but because the determination is made by reference to the application of principles and standards "supposed already to exist". And the determination is binding and authoritative in the sense that there is what has been described as an immediately enforceable liability of B to pay A the sum in question. Consequently, even if the determination in such a case were to be made by an administrative tribunal and not by a court, the determination would constitute an exercise of judicial power, although not one in conformity with Chapter III of the Constitution.
[38] Again, in Precision Data Holdings Ltd v Wills,[18] the question for the High Court was whether the conferral of power by the Corporations Law on the Corporations and Securities Panel to declare conduct in relation to the acquisition of shares in a company to be unacceptable involved an exercise of the judicial power of the Commonwealth. The Court said (omitting citations):[19]
True it is that the making of binding declarations of right by way of adjudication of disputes about rights and obligations arising from the operation of the law upon past events or conduct is a classical instance of the exercise of judicial power. But the declarations for which s 733 provides are not binding declarations of right in the sense in which that term is used, more particularly in the context of the exercise of judicial power. That is because the adjudication which the Panel under s 733 is called upon to make is not an adjudication of a dispute about rights and obligations arising solely from the operation of the law on past events or conduct.
The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power.
It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertain facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.
Furthermore, if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power.
[39] The difficulty in marking the line between judicial power and administrative power is highlighted by the following two further propositions:
• The fact that a tribunal is bound to act judicially is not determinative of whether the power it is exercising by that action is judicial or administrative.[20]
There are some powers which appropriately may be treated as administrative when conferred on an administrative body and as judicial when conferred on a Federal Court or court exercising federal jurisdiction.[21]
[40] It is, therefore, necessary to look closely at the particular power in question to ascertain whether it is judicial or administrative in character. That involves, of course, an examination of the statute which confers the power, bearing in mind that the statute is to be construed to give effect to its purpose,[22] the way in which that power is to be exercised by the Tribunal, and the consequences of the exercise of that power, including enforcement.
By s 336(1)(a) the power of the Tribunal relevant for present purposes is limited to confirming or setting aside the decision of the Board made under s 59(2). In exercising that power, the Tribunal is required to act on the original evidence which was before the Board, subject to the Tribunal's ability to give leave, in specified circumstances, for new evidence to be put before it. By s 219(1), which applies to the hearing of an appeal against a s 59(2) decision by virtue of s 333(1), the Tribunal:
(b) Must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues before it; and
(d) May inform itself of anything in the way it considers appropriate.
[42] Section 27 of the Act provides that the members of the Tribunal are the
District Court Judges, and that the Tribunal is constituted by any one of its members. Section 31 provides to the effect that, except in the case of urgency, when hearing a matter relating to a registrant under the Act, the Tribunal must be assisted by -
(a) One assessor chosen by the Tribunal's Registrar from the public panel of assessors; and
(b) Two assessors chosen by the Registrar from the professional panel of assessors for the registrant's profession.
The function of an assessor is to advise the Tribunal about questions of fact arising during the hearing of a disciplinary matter: s 34.
[43] Clearly enough, the fact that the Tribunal is constituted by a District Court Judge, that the Tribunal is bound to act judicially (albeit in the absence of necessary adherence to the rules of evidence), the fact that the Act contains a code for the procedure to be adopted in hearings before the Tribunal, and the fact that the Tribunal expressly has conferred on it the power to punish for contempt (s 239) are all relevant, but not determinative, of the question in hand. Rather, the question goes to the power being exercised by the Tribunal, namely the power to confirm or set aside the primary decision by the Board made under s 59(2).
[44] By s 58, the purpose for the conferral of the power on the Board to suspend, or impose conditions on, a registrant's registration is to enable the Board 'to effectively respond to serious potential risks posed by registrants to the wellbeing of vulnerable persons'. That purpose, in my view, is also informative as to the purpose for the exercise of the power by the Tribunal to confirm or set aside the decision of the Board made under s 59(2). It is also relevant that there is no provision under the Act of any right of further review or appeal from the Tribunal's confirmation or setting aside of the Board's decision under s 59(2).
[45] In Albarran v Members of the Companies Auditors & Liquidators Disciplinary Board & Anor,[23] challenge was made to the statutory authority of the CALDB to discipline company auditors and liquidators, it being contended that orders made by the CALDB to suspend the registration of liquidators were an unconstitutional exercise of the Commonwealth's judicial power by an administrative body. In the course of dismissing the appeal, Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ,[24] adopted as correct the following statement by the Full Court of the Federal Court:[25]
If one takes the exercise of power here - that is to terminate or suspend a right or status, created by statute, by reference, in part, to past conduct - it can be readily accepted that a court might do this or an administrative tribunal might do this. This is not a power which is inherently judicial. The character of the Board, the undoubted bringing to bear by the Board of professional standards (with the knowledge of which its members can be taken to be imbued), an absence of an assigned task of deciding a controversy between parties as to the existence or not of present mutual rights and obligations of those parties upon the application of the law to past events, the exercise of an evaluative and discretionary power in the protection of the public as to whether a person is fit and proper to continue to hold a position of importance provided for by the statute, all combine to give the conclusion that the conferral on the Board of the power in s 1292 is not judicial.
[46] That statement is, in my opinion, directly apposite to the present case. The Tribunal, whilst constituted by a District Court Judge, is assisted in its fact-finding function by two assessors from the relevant professional panel and one assessor from the public panel. The presence of, and assistance provided by, these assessors clearly brings not only the relevant professional standards to bear in the Tribunal's considerations but also a measure of the expectations of members of the public via the lay assessor, thus reflecting the 'public confidence' object sought to be achieved under the Act. The Tribunal is not called on to decide a controversy between parties as to the existence or not of present mutual rights and obligations. Rather, its power is limited to confirming or setting aside the decision made under s 59(2). The power exercised by the Board under s 59(2) was clearly the exercise of an evaluative and discretionary power for the protection of the public - so much is clear from the necessity that the Board 'reasonably believe' that the registrant 'poses a serious potential risk to the wellbeing of vulnerable persons'. The exercise of the Tribunal's power under s 336(1)(a) equally involves an evaluation, for the public benefit, of whether, as in this case, a doctor should be suspended or have conditions imposed on his or her registration. The exercise of this power also clearly involves the exercise of discretion within those statutory parameters, and with the benefit of the assistance of the assessors.
[47] Accordingly, I consider that the power exercised by the Tribunal under 336(1)(a) of the Act to confirm or set aside a decision made by the Board under
Was the Tribunal's decision infected by jurisdictional error?
The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison: "it is, emphatically, the province and duty of the judicial department to say what the law is". The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
[49] I have quoted above the passage from Craig v South Australia[29] which distinguishes jurisdictional error on the part of an administrative body. In Minister for Immigration v Yusef[30] McHugh, Gummow and Hayne JJ noted that the list of different kinds of error set out in that passage in Craig is not exhaustive, and said:
Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
[50] An error about findings of fact which does not constitute or reveal a jurisdictional error concerns the merits of administrative action, and not its legality.[31] That accords with the longstanding proposition that, ordinarily, a finding of fact (including an inference drawn from primary facts) by a body exercising administrative power is not subject to judicial review, save to the extent that the ultimate determination, which is subject to judicial review, depends on a finding of fact which is vitiated by error of law or made without evidence.[32] Moreover, the jurisdictional error which it is said has the effect of vitiating the decision must be one which is material to the decision in the sense that it contributes to the decision so that, but for the error, the decision would have been, or might have been, different.[33] Even the making by a body exercising administrative power of a wrong or illogical finding or inference of fact does not necessarily give rise to an error of law. As long as there is some basis for an inference, albeit drawn from illogical reasoning, there is no error of law and hence no basis for judicial review.[34]
[51] The Board submits that there were two jurisdictional errors:
(a) A failure to consider Dr Lip's alleged incompetence as a separate reason for his suspension;
(b) The making of a number of factual findings without sufficient evidence.
[52] The Board contends that Dr Lip's alleged incompetence was a separate reason for his suspension, and that the Tribunal failed to consider this issue separately because it took a wrong approach in law. It is submitted that s 59 mandates a two stage decision-making process - first, whether there is a serious potential threat to the wellbeing of vulnerable persons, and secondly, if there is, what is the least onerous action needed to protect them. The first question necessarily involves an inquiry as to the threat. The Board submits that a separate identifiable threat which founded the Board's decision, but which was not taken into account by the Tribunal, was the doctor's alleged incompetence. To this extent, then, the Board submits that the Tribunal asked itself the wrong question - the Tribunal did not treat the alleged incompetence as a separate threat sufficient for the purposes of answering the first stage of the inquiry, but only looked at the alleged incompetence as part of the second stage of the inquiry, namely whether the least onerous action to address the threat could be taken by distinguishing between public and private patients.
[53] By s 59, the Board is empowered to decide to suspend or impose conditions on a registrant's registration if it reasonably believes both of two things:
(a) the registrant poses a serious potential risk to the wellbeing of vulnerable persons; and
(b) Immediate action to suspend, or impose conditions on, the registrant's registration is necessary to protect the vulnerable persons.
It is to be noted that s 59(1)(b) refers to 'the vulnerable persons', that obviously being a reference to the 'vulnerable persons' referred to in s 59(1)(a). It is also notable that s 59(3) requires the Board to take the least onerous action necessary to protect 'the vulnerable persons', that again being a reference to the 'vulnerable persons' the subject of the belief referred to in s 59(1)(a). The section therefore contemplates, in my view, that, in the first instance, the Board reasonably believe that the registrant poses a serious potential risk to the wellbeing of an identifiable class of vulnerable persons. It may be that this class of 'vulnerable persons' is very wide - in the case of a manifestly and generally incompetent practitioner, it may be that the class of 'vulnerable persons' to whom that person poses a serious potential risk is the public at large. On the other hand, a practitioner whose capacity in a particular respect is diminished may well only pose a serious potential risk to a smaller identifiable class of vulnerable persons - for example, a general surgeon who suffers from an uncontrollable involuntary tremor may be regarded as only posing a serious potential risk to persons undergoing operative procedures, but is no risk to persons who consult the surgeon for diagnosis or professional advice. Thus there is a necessary correlation between the subject matter of the belief, namely the 'serious potential risk, and the object of that risk, namely the 'vulnerable persons' whose wellbeing is threatened by that risk.
[54] The Board says that Dr Lip's alleged incompetence was an independent ground for its decision. Dr Cohn, who chaired the meeting of the Board at which the relevant decision was made, has deposed:
(a) He demonstrated a pattern of failing and/or refusing to attend to treat patients with emergency presentations when requested by nursing staff, when he was the doctor on call.
(b) Despite being counselled and given a formal warning, his behaviour continued.
(c) Dr Lip's behaviour indicated either extremely poor judgement in deciding not to attend the hospital when called by nursing staff or indifference to the health of the patients concerned.
(d) Given the matter did not involve an isolated incident but a pattern of apparently deliberate action, the Board cannot be confident of Dr Lip's ability to appropriately assess and manage emergency presentations.
(e) Given the seriousness of the conduct described, the Board's concerns are not limited to patients admitted to Murgon Hospital but extent to r [sic] Lip's ability to appropriate manage patient's [sic] in his private practice.
[55] The Board says that its identification of alleged incompetence as a separate ground also appears from:
• the following sentences in the 'show cause' letter dated 20 December 2006:
'The information also raises concerns about the appropriateness of treatment when you did attend the hospital'; 'Your clinical assessment and management of Miss O'Sullivan was inadequate'; 'Your clinical assessment and management of Mr Krog was inadequate'; 'Given the seriousness of the conduct described, the Board's concerns are not limited to patients admitted to Murgon Hospital but extend to your ability to appropriately manage patients in your private practice'.
• the following statement in the minutes of the meeting of the Board on 21 December 2006:
Dr Lip's failure to attend and appropriately manage emergency patients, including his clinical decision-making, are fundamental to the safe practice of medicine and the risk cannot be distinguished between public and private patients.
• the following further statement in the Board's letter of 22 December 2006:
This is because an unwillingness to assist emergency patients when it is inconvenient to you, and your clinical judgment in relation to emergency presentations, is fundamental to your practice of medicine, whether the patient is seen publicly or privately.
[56] It was also submitted on behalf of the Board that the issue of alleged incompetence was dealt with separately by the notice of appeal to the Tribunal. With respect, I do not see such an express reference in that notice of appeal, but do observe that one of the grounds of appeal was 'that the Board in making its decision under s 59 of the Act to suspend [Dr Lip's] registration did not take the action least onerous, necessary to protect vulnerable persons', and that one of the facts relied on in the notice of appeal was that 'the Board had no sufficient evidence that the appellant posed an imminent threat to his private practise [sic] patients'.
[57] The Board also referred to various passages in the transcript of the hearing before the Tribunal, which it was said highlighted the fact that the Board was advancing the alleged incompetence as a separate and independent ground for the decision under s 59. A review of that transcript reveals that counsel who appeared for the Board before the Tribunal did indeed support its position on two bases and highlighted that the Board's concerns about the doctor's alleged incompetence were not limited to his treatment of public patients, and that it drew no distinction between public and private patients.
[58] In Dr Lip's affidavit before the Tribunal, he accepted that he should have attended on Mr Krog earlier in the day on 22 August 2006. He set out a number of reasons for his delay, but tacitly accepted that his management of that patient was properly subject to criticism, acknowledging that in hindsight:
(a) He accepted that he should have attempted to have Mr Krog transferred to an intensive care facility, and
(b) He focused too much on the investigation of Rhabdomyolysis as the cause of Mr Krog's condition rather than trying to transfer him to an intensive care unit.
[59] In the reasons for its decision, the Tribunal accepted:[35]
There is clearly a case to consider whether Dr Lip has acted in a way that posed a potential risk to the wellbeing of vulnerable persons namely the people attending the Murgon Hospital Accident and Emergency Care Department.
[60] By so finding that the 'vulnerable persons' were the people attending the
Murgon Hospital Accident and Emergency Care Department (Murgon A & E), the Tribunal necessarily decided that this was the class of persons whose wellbeing was the object of the 'serious potential risk' posed by Dr Lip. This identification of the class of 'vulnerable persons' limited to the people attending the Murgon A & E underpinned the Tribunal's approach to the question identified by it in its reasons, namely whether the Board's decision to suspend Dr Lip's registration was 'the least onerous necessary to protect the wellbeing of vulnerable persons'[36]
In fairness, it must be said that the issue of Dr Lip's alleged incompetence such as to pose a serious potential risk to the wellbeing of the public at large assumed much greater prominence in the argument before me that it had in the statements leading up to the Board's original decision and in argument before the Tribunal. That is partly explained, of course, by the intrinsic nature of the argument advanced before me, namely the attempt to identify this as the basis for judicial review. But this is not a merits appeal. My task is limited to determining whether the Tribunal committed an error of law in making the decision to exercise its administrative power in the way it did.
In my view, the Board was alive to the distinction between the contentions advanced by the Board in relation to Dr Lip's inappropriate failures to attend at the public hospital when requested and required on the one hand, and the allegation as to his incompetence in treatment of patients on the other. In the context of Mr Krog, the latter contention was identified in the Tribunal's reasons for decision.[37]
It seems to me, however, that the relevant issue on this application for judicial review is whether, in making its decision, the Tribunal erred in limiting its identification of 'the vulnerable persons' to 'the people attending the
Murgon Hospital Accident and Emergency Care Department'. In that regard, the Tribunal had sufficient evidence before it from which it could infer that this was the class of 'vulnerable persons' to whom the serious risk was posed. Each of the instances identified by the Board as founding its concerns dealt with public patients at the Murgon Hospital, and in particular those who were emergency presentations. The Board's contention that the risk posed by Dr Lip could not be distinguished between public and private patients was, as appears from the minutes of its meeting on 21 December 2006, founded in the proposition that 'Dr Lip's failure to attend and appropriately manage emergency patients, including his clinical decision-making, are fundamental to the safe practice of medicine'. There was no evidence before the Tribunal of any, let alone any similar, mismanagement of patients in the doctor's private practice. It was also relevant, in its decision-making process, for the Tribunal to have regard to the undertaking proffered by Dr Lip to limit his practice to his private practice.
I accept that the Tribunal's finding that 'the vulnerable persons' were the people attending the Murgon A & E was material to its decision; so much also appears by necessary inference from its statement of opinion.[38] I do not accept, however, that it has been demonstrated that the Tribunal committed an error of law in making that finding, even accepting that the finding was one which necessarily led to the Tribunal's ultimate decision. I do not consider that the Tribunal took a wrong approach in law to identification of the matters on which it was required to make findings for the purposes of s 59(1)(a), nor do I consider that the Tribunal, in making the findings it did, ignored relevant material or relied on irrelevant material in a way which affected its exercise of power.
Accordingly, I find that the Board's argument on this aspect of jurisdictional error has not been made out.
[66] The Board also pointed to a number of findings made in the Tribunal's reasons for decision which the Board contended lacked evidentiary foundation.
[67] Even if the factual findings challenged by the Board were material to the Tribunal's ultimate decision (which I doubt) it cannot, in my view, be said that the Tribunal committed an error of law by making the relevant findings without foundation.
[68] Dealing with the challenged findings in turn:
(a) That Dr Lip was 'the only medical practitioner in full time practice at Wondai' is clearly to be inferred from the correspondence exhibited to his affidavit in exhibit PL6, particularly the letter from the Chief Executive of the Wondai Shire Council which states that, in the absence of Dr Lip, 'the town of Wondai and district is left without a resident doctor at night';
(b) Similarly, the statement that 'letters from doctors in the South Burnett area indicating that they are unable to take on the extra patients as they were all already working in excess of 12 hours per day' is a fair inference from the correspondence from the medical practitioners contained in that exhibit, particularly the letter dated 9 January 2007 from the members of the Kingaroy Medical Group;
(c) The finding that 'Dr Lip has been in private practice in Wondai for over 36 years without a complaint in relation to his care of patients in private practice' is fairly sourced in paragraph 2 of his affidavit, in which he said 'I have practised in Wondai as a general medical practitioner in private practice since 1970', in paragraph 18 in which he said 'Other than in respect of
Mr Krog, I am not aware of any complaints made against me to the Medical Board, the HQCC or its predecessor the Health Rights Commission, by a patient', and in paragraph 19 in which he said 'Other than a claim made by Alexandra Braun and her parents regarding injuries relating her birth on 1 November 1990 where I assisted the practitioner responsible for antenatal care at a caesarean section delivery and a claim by Sladjana Celap, a schizophrenic patient in relation to an undetected crush fracture, I am not aware of any civil claims made against me. There were other defendants in both of these claims'.
(d) A fair reading of the newspaper clippings exhibited to his affidavit do, in my view, 'indicate that he has patients who have been devastated by his suspension'. But in any event, it does not appear to me that this particular finding was one which was material to the Tribunal's ultimate decision and even if, as contended for by the Board, it was an irrelevant consideration, it does not found jurisdictional error.
(e) To the extent that the statement of the Tribunal's reasons that 'there is no suggestion that there were problems with Dr Lip attending the Wondai Hospital when it was operational'[39] is a finding of fact, it properly reflects the state of the evidence before the Tribunal - there was, indeed, no such suggestion. In any event, I doubt that the finding was material to the Tribunal's ultimate decision.
[69] Accordingly, I find that these challenges to the Tribunal's decision on the grounds of jurisdictional error have not been made out by the Board.
[70] In view of my findings as to absence of jurisdictional error on the part of the Tribunal, it is unnecessary for me to grapple with the thorny question as to the appropriate relief which would have been obtained by the Board if this application had been successful.
(b) The applicant pay the first respondent's costs of and incidental to this application to be assessed on the standard basis.
[3] [1968] UKHL 6; [1969] 2 AC 147, 171.
[14] [1909] HCA 36; (1909) 8 CLR 330, 357.
[15] [1931] AC 275, 296-297.
[25] Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board [2006] FCAFC 69; (2006) 151 FCR 466, 477-478.
[26] Cited with approval in Minister for Immigration v Yusef [2001] HCA 30; (2001) 206 CLR 323, 73 (McHugh, Gummow and Hayne JJ); Minister for Immigration v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 149 (Hayne J).
[30] [2001] HCA 30; (2001) 206 CLR 323, 82 (McHugh, Gummow and Hayne JJ).
[31] Minister for Immigration v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 149 (Hayne J).
[32] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 340-341 (Mason CJ).
[37] Ibid, 31. The distinction also appears at 33.
Medical Board of Queensland
Lip & Anor
(2007) 81 ALJR 1155
(1990) 170 CLR 1
(1995) 183 CLR 245
(1995) 184 CLR 163
(1909) 8 CLR 330
(2001) 206 CLR 323
(1991) 173 CLR 167
(1970) 123 CLR 361
(1983) 49 ALR 533
(2002) 209 CLR 246
(1998) 194 CLR 355
(2006) 151 FCR 466
(2002) 209 CLR 597
(1990) 170 CLR 321