Medical Board of Victoria v Meyer [1937] HCA 47

Medical Board of Victoria v Meyer [1937] HCA 47 - HCA 1937 case summary — Zoe

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their profession in such country either on registration or otherwise. The respondent, Moritz Meyer, a doctor of medicine in the Univer- sity of Leipzig, practised medicine in Germany for some fifteen years and then went to Great Britain, where, after a post-graduate course extending over twelve months, be became a licentiate of the Royal College of Surgeons, Edinburgh, of the Royal College of Physicians, Edinburgh, and of the Royal Faculty of Physicians and Surgeons, Glasgow. He was then registered with the General Medical Council in London as a legally qualified medical practitioner in Great Britain. Subject to the other provisions of Part I. of the Medical Act of Victoria, which is the part dealing with medical practitioners, a licentiate of any of the bodies mentioned or a legally qualified practitioner registered in Great Britain is entitled to registration by the Medical Board of Victoria. Relying accordingly on his British qualifications, the respondent, Moritz Meyer, applied for registration in Victoria. But one of the other provisions to which his title to registration is subject is a general and overriding prohibi- tion against registering anyone unless he has passed through a regular course of medical and surgical study of five or more years' duration. For the fulfilment of this requirement his course of twelve months' study in Britain will not suffice. He must depend upon the original course he passed through in Germany, a course the duration of which was five years or more. But his claim that his German course of medical and surgical study is enough to satisfy the overriding statutory condition encounters the difficulty that no school of medicine in Germany can be recognized by the Medical Board of Victoria for the purposes of the Medical Act. The Medical Board says that to accept a German medical course as fulfilling the requirement of a regular course of medical and surgical study of five years' duration is to recognize a school of medicine or university or college or other body in Germany contrary to the prohibition. To this very simple proposition many answers have been proposed, but none of them appears to me to have any real foundation. On the other hand, there is a number of considerations which, in my opinion, confirm the view that for the purpose of compliance with the conditions of registration prescribed as indispensable the Act

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school of medicine, even that at the Melbourne University, gives its degree in respect of a period of foreign training in such a country, to give unqualified effect to the degree or diploma of that university without investigating further how and where compliance with sub- sec. 1 of sec. 14 was made, would tend to defeat the policy of 'sub-sec. 2. It is not a question of approval or disapproval of the policy but of recognizing its implications and, so far as such general considerations may legitimately influence interpretation, of allowing full effect to the expression of that policy. Further, as at present advised, I am not prepared to agree that sub-sec. 1 is complied with by a period of study made up of two portions, one of a course of study in one place and the other portion part of a different course -of study in another place. To me it appears that "' Parliament has clearly expressed the intention to include all cases." That is to say, it has clearly said that no school of medicine shall, for any purpose of the Act, be recognized, unless it belongs to a reciprocating country. If to accept passing through a course of medical and surgical study at a German university or school of medicine as fulfilment of the requirements of sec. 14 (1) involves, as I think it does, recognizing the school of medicine or university, then nothing but a necessary implication can restrict the application of the prohibition contained in sub-sec. 2. For my part, I can find nothing to support such an implication. It is no doubt true that some of the words in sub-sec. 2 are repeated from sec. 13; though it is to be noticed that " school -of medicine" is not. It is true that they occur in par. 13 of the schedule. It is, therefore, in a sense correct to say, as Lowe J. -does, that they refer back to sec. 13 and it is correct in the same way that they refer to the schedule. But this only means that they include all cases covered by those words in the schedule. It appears to me to give no support to the conclusion that nothing arising under sub-sec. 1 can be affected by sub-sec. 2 of sec. 14. The central point of the interpretation opposed to mine is, I think, the conception of "recognition" as some act done in the exercise of a purely 'discretionary authority. If it does bear this peculiar meaning I can understand the necessity of confining the application of sub-sec. 2 to the thirteenth paragraph of the schedule. But, in that case, it

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administrative function. But, on the construction of the Act, I think that it sufficiently appears that, where an applicant's right depends upon the discretionary recognition of a university &c. under par. 13 of the schedule, the question whether a university &c. ought so to be recognized is not reviewable by the court on appeal. In exercising its power to remove or erase a name from the register, it must determine as a matter of fact whether the conduct or con- ditions exposing the practitioner to removal from the register have been established. Apparently the board then has a discretion whether it will remove or erase his name. But that discretion, which must depend upon the nature and seriousness of the case, is of a judicial description. In judging whether an applicant for registration is of good character, the board is dealing with an indefinite or vague standard, but nevertheless it is a matter of fact to be determined judicially. Except for the particular diseretion given by par. 13 of the schedule, there is, in my opinion, nothing in the board's decision which might not be determined as an exercise of judicial power, if the legislature had thought proper to confide its determination to the courts in the first instance. In other words, a person seeking registration or resisting removal from the register is asserting a right depending upon the existence of facts that fulfil conditions prescribed by law, and the determination and enforcement of such a right is a thing not necessarily falling outside judicial power. The appeal given by sec. 9 of Act No. 4131 is no more than a statutory proceeding for submitting such a question for judicial review by the exercise of judicial power or authority. We have grown familiar with provisions in laws relating to taxation which make an adminis- trative determination conclusive of liability subject to judicial review by some statutory proceeding. The right to a grant of letters patent or registration of a trade mark or design is dealt with in a similar way. In such cases the right derived by or liability imposed upon the subject under statute is ascertained and enforced or declared as an exercise of original jurisdiction according to a special mode of procedure.

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Victorian statute, we should feel great difficulty in holding that any order of a judge in chambers is not in substance an order of the court, within the meaning of the Constitution and the Judiciary Act. In Lush's Practice (2nd ed., by Stephen, p. 668) it is said that ' the common law appears to vest in a single judge, the same equitable jurisdiction over the proceedings in a cause which it vests in the court of which he is a constituent member. His act therein is potentially the act of the court ; for, although he cannot directly enforce the orders he makes nor exercise any of what may be termed the prerogative powers of the court, yet the court will adopt his orders and for disobedience thereto when so adopted will issue process of attachment as if the matter had been originally ordered by the court itself.' Accordingly, it has been held by judges of great authority that when a statute confers powers upon the court in general terms, and without any limitation either express or to be inferred from the context, they are to be exercised in the ordinary and usual way in which the court is accustomed to exercise powers of an analogous nature, and that, if the powers in question are such as are ordinarily exercised in chambers, they may be so exercised : Smeeton v. Collier (1). In such a case the order is potentially the order of the court. The powers of judges in chambers were confined within well-known limits, and technical rules prevented the enforcement of a judge's order by execution or attachment until it had been made a rule of court, but these rules are now abolished in Victoria, and there is, as already stated, no difference in the mode of enforcement between orders pronounced in court and orders pronounced in chambers. It would indeed be strange if, although the effect of a judgment as a final determination of the rights of parties is the same whether the judge sits in an open or in a closed room, yet the right of the parties to appeal to this court from the judgment should be dependent upon that circumstance, which the legislature has in express terms declared to be immaterial

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assumed to be competent, special leave should be rescinded. I think that, if the circumstances now known to the court had been brought to its attention upon the original application of the Medical Board, special leave should have been refused, and for more than one reason. Having made a specific inquiry as to his right to practise in Victoria, Dr. Meyer received a favourable answer from the board, on the faith of which he came to this country to begin life afresh. Inter- vention by special leave in the case of so unmeritorious an application is difficult to justify. Further, by sec. 9 (3) of the Act of 1933 the decision of the judge in chambers is made final and conclusive. The Medical Board was not directly represented before Mr. Justice Lowe, but the Crown appeared and argued in support of the opinion which the Medical Board had reached. Of course the fact that the decision of Lowe J. was made final by the law of Victoria does not preclude the granting of special leave to this court. But it is a matter to be considered because in the special circumstances of Dr. Meyer's case the board should have abided by the decision of the special appellate tribunal. The board's function and its very existence derive from the very Act which evidences the policy that the appeal tribunal shall deal finally and conclusively with any decisions of the board. The result of granting special leave is to create ananomalous position. Under the Act the board is empowered to collect certain fees, but all such fees must be paid at once into the consolidated revenue and they are then subject to Parliament's sole control. Thus the board has no funds of its own with which to promote litigation. Further, after Mr. Justice Lowe's decision, the Crown declined to prosecute any appeal to this court. I do not think that where there is a special tribunal which is intended to deal with all matters as a quasi-judicial body and the decision of such tribunal has been reversed by the statutory appeal authority, this court should encourage the overruled tribunal to assume before it the role of party appellant, solely for the purpose of having its own original decision restored.

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respondent possesses four of these qualifications, the genuineness of which he established in the manner provided by sec. 13 of the Act. He is in possession of the following qualifications : Licentiate of the Royal College of Physicians of Edinburgh, of the Royal College of Surgeons of Edinburgh, of the Faculty of Physicians and Surgeons of Glasgow, and a legally qualified practitioner registered in Great Britain. None of these qualifications is sufficient to complete the respondent's title to be registered or to receive a certificate of quali- fication under the Act. An additional qualification is demanded by sec. 14. This section, to which sec. 13 is expressed to be subject, says in its first part that no person whosoever shall be entitled to be registered as a legally qualified medical practitioner or to receive a certificate of qualification unless he has passed through a regular course of medical and surgical study of five or more years' duration. In Great Britain the respondent studied medicine and surgery only for one year. As this course of study was less than the minimum period of study required by the first part of the section, he was compelled to put forward the fact that he had, prior to going to Great Britain, completed a regular course of medical and surgical study of five or more years' duration in the University of Leipzig in Germany. The Medical Board of Victoria did not recognize that as an accomplishment qualifying the respondent for the purposes of the Act. They applied sec. 14, which, in its second part, says that no school of medicine or university or college or other body in any country other than Great Britain, Ireland or any British possession shall be recognized by the Medical Board of Victoria for the purposes of this Act unless it appears to it that legally qualified medical practitioners of Victoria are by virtue of being so registered and without further examination entitled to practise their profession in such country either on regis- tration or otherwise. Victorian legally qualified practitioners are not entitled to practise their profession in Germany by virtue of their Victorian status. It is clear that the respondent cannot be admitted to that status by the Medical Board unless it takes notice of the medical and surgical curriculum of the University of Leipzig and accords it recognition as a regular course of medical and surgical study proper to satisfy the requirements of sec. 14.

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The dismissal of the respondent's application is based on the view that if the board accepted this curriculum its action would be equivalent to recognizing the University of Leipzig itself, and that it would contravene the section. The opposing contention is that sec. 14 prohibits recognition only of the diplomas or certificates of universities in foreign countries where the Victorian status of a legally qualified medical practitioner is not accepted, but does not prohibit the recognition of any regular course of study of five years or of longer duration, that is done in one of these countries. The assumption upon which this contention is based is that the first and second parts of sec. 14 are two separate enactments applying to different subjects. What is assumed is that the first part defines the nature and period of study which an applicant must have done even if he is to be regarded as qualified under the Fourth Schedule to the Act, and that nothing is prohibited by the second part except the recognition of diplomas or certificates granted by universities or other bodies in countries out of the British Empire which ignore the status of practitioners registered in Victoria. Upon this assumption sec. 14 has nothing to say to the question in what place the regular course of medical and surgical study which is a condition precedent to regis- tration in Victoria should be done, and it would follow that the board would be bound to give credit to and recognize for the purposes of the Act any regular course of study which an applicant passed through, even if it were the medical and surgical course of a university in a foreign country where the Victorian status is not recognised. But the implication in the phrase " passed through a regular course of medical and surgical study " and the category " school of medicine or university or college or other body" in the second part of the section plainly indicate an interrelation between the two parts of the section. Upon a consideration of the three parts into which the section is divided it is clear that they were all intended to be read together. A regular course of medical and surgical study imports a curriculum of an institution exercising the function of giving instruction and training in medical and surgical science. A

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surgical curriculum of one of the bodies mentioned in sec. 14. The legislature, for the purposes of sec. 14, has adopted a category so wide that any person applying to be registered would inevitably fail to prove that he had passed through a regular course of medical and surgical study unless his pursuit of knowledge and skill in these sciences had been governed by the rules of an institution like one in that category. It may be observed that "school ofmedicine " is omitted from the list of bodies mentioned in sec. 13. A more comprehensive list is contained in part two of sec. 14 because of the enactment in part one of that section that the character of the study to which the applicant for registation should have applied himself is a regular course of medical and surgical study. In sec. 13, the legislature was referring to the testimonium, diploma, or certificate given by a university, college or other body. The addition in part two of sec. 14 of "school of medicine" to that list makes it manifest that in this section the legislature was concerned with the question in what circumstances a foreign school of medicine, university, or college, or other body to which an applicant owed his medical and surgical training or from which he received a testimonium, diploma, or certificate or upon which he otherwise depended to support his claim to be registered, should be recognized for the purposes of the Act. If the board accepted the course of study done by the respondent in the University of Leipzig as a qualification which was sufficient to support his claim to be registered and to receive a certificate of qualification under the Act, the board would in my opinion in the ordinary sense of the word thereby "recognize," that university for the purposes of the Act. But it is said that sec. 14 is to be read subject to an implied limitation that is supplied by the thirteenth clause of the Fourth Schedule. This clause in part pro- vides that a person is qualified under sec. 13 who proves to the satisfaction of the board that he has passed through a regular course of medical study of not less than five years' duration in a British or foreign school of medicine, and has received after due examination from some British or foreign university, college, or body duly recognized for that purpose in the country to which such university, college, or other body may belong and also recognized by the Medical Board of Victoria a medical diploma or degree certifying to his

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Judgment (230 paragraphs)