Plaintiff v Defendant

Plaintiff v Defendant - [2005] VSC 493 - VSC 2005 case summary — Zoe

1 This is the return of a summons filed in a proceeding instituted by originating motion, seeking judicial review of a decision made by a statutory body to hold an informal hearing into the professional conduct of the plaintiff. The jurisdiction invoked by the motion is the common law prerogative writ jurisdiction, which supervises the decision making process of inferior bodies including statutory bodies in order to ensure they comply with the law in exercising their authority and powers when reaching a decision.

Parties

2 The plaintiff, Dr Frank Kabourakis ("Dr Kabourakis"), is and was at all relevant times a medical practitioner registered pursuant to the Medical Practice Act 1994 (Vic) ("the Act").

3 The defendant, the Medical Practitioners Board of Victoria ("the Board"), is a body established by s.65(1) of the Act. It is a body corporate which may be sued in its corporate name. Its powers, functions and consultation requirements are set out in s.66 of the Act. They include functions of regulating the standards of medical practice in the public interest, investigating the professional conduct of registered medical practitioners, and imposing sanctions where necessary. See s.66(1)(ab) and (c). The Board comprises 12 members nominated by the Minister and appointed by the Governor-in-Council. Being a statutory body, its jurisdiction, authority, powers and obligations are to be found within the four corners of the Act that created it.

Complaint and Investigation

4 Between 27 May and 24 June 2002, Dr Kabourakis treated a patient for pain management following an industrial accident which occurred in November 1999. The Doctor prescribed a number of drugs. The patient died as a result of inhalation of vomit following an overdose of drugs. On 17 February 2003, the Board was notified by the patient's mother ("the notifier - see s.3") complaining about the professional conduct of Dr Kabourakis. The Board commenced a preliminary investigation under s.25 as it was bound to do, having been satisfied that the notification was not to be dealt with by the Health Services Commissioner and that the notification was not frivolous or vexatious. The Board requested Dr Kabourakis to respond to the matters raised by the notifier and to provide a copy of the medical records relating to the patient. The Doctor responded. During the period between 11 June and 24 September 2003 the Board conducted a preliminary investigation. Having carried out the preliminary investigation, the Board determined that an informal hearing would be held into the professional conduct of Dr Kabourakis. The Board, as required by s.39, appointed a panel to hold an informal hearing into the allegations. On 6 October 2003, the Board gave the Doctor a written notice pursuant to s.39, which set out the information prescribed by s.41. The allegations that were made against Dr Kabourakis and investigated at the informal hearing were his failure to seek and obtain important information about the history and treatment of the patient in the past, failure to institute an appropriate management plan taking into account the patient's background, inappropriate prescription of large doses of morphine to a patient who was vulnerable because of age and his longstanding painful condition, and provision of prescription drugs in a haphazard and excessive manner. On 30 October 2003, the panel conducted an informal hearing into the professional conduct of Dr Kabourakis and on 13 November 2003, it made a finding pursuant to s.43(1)(b) that Dr Kabourakis had not engaged in unprofessional conduct. The effect of the finding was that it came into operation on the date the determination was made.[1]

5 The notifier was dissatisfied with the finding and approached the Victorian Ombudsman. As a result of responding to matters raised by the Victorian Ombudsman, the Board in September 2004 became aware that by reason of an administrative oversight, the panel which conducted the informal hearing had not been provided with a written expert opinion of a doctor that had been obtained by the Board. In a letter dated 7 August 2003, Dr J. Summons had been requested by the Board to provide an expert opinion in relation to the conduct of Dr Kabourakis and in particular the prescription of a variety of drugs. By letter dated 12 August 2003, Dr Summons responded and opined that the treatment should have included obtaining information from the patient's previous doctor, obtaining an opinion from the treating orthopaedic surgeon, and making contact with the Drug and Poisons Unit of the Department of Human Services. He also stated that it would appear that the progressive increase in one of the drugs was unwise until the above matters had been addressed. This letter was not before the panel. It raised matters which in my opinion the panel would have been duty bound to take into account, and raised questions concerning the professional conduct of the doctor. It was evidence that had to be considered and to which the doctor should have been given the opportunity to respond. On 18 November 2004, the Board considered what should be done and decided to conduct a second informal hearing. The decision made by the Board was made pursuant to s.25(7) of the Act, which gives the Board the power of its own motion to determine to conduct either an informal or formal hearing into the professional conduct of a medical practitioner. The minutes of the meeting held on 18 November 2004 record the Board's determination to conduct an informal hearing pursuant to s.25(7) of the Act. The Board by letter dated 14 January 2005 informed Dr Kabourakis of those facts and enclosed a copy of the report of Dr Summons for his information.

6 By letter dated 2 February 2005, the Board informed Dr Kabourakis that it had determined to conduct an informal hearing into allegations made by the notifier regarding his professional conduct. The notice contained the information required by s.41.

Judicial Review

7 On 21 April 2005, Dr Kabourakis, through his solicitors, instituted this proceeding by originating motion. His grounds can be briefly stated. He has been the subject of an investigation and a finding has been made. It has been concluded. He was exonerated of any professional misconduct. The Board does not have power to ignore the finding and start again. It is put on his behalf that he should not be subject to another investigation. A complaint against a professional person is distressing and time consuming, and there has to be an end to any investigation. His counsel pray in aid the doctrines of functus officio, that is, having discharged the duty to investigate and having made a determination, the Board did not have the power to ignore what had occurred and start again; res judicata, that is, a decision is conclusive until reversed; abuse of process and double jeopardy; and the importance of finality in litigation.

8 On the other hand, there is another side to what has occurred. The notifier has been deprived of a full, careful and complete investigation. The notifier feels cheated. It is important that justice be done. Justice is a two-way street. This is sometimes overlooked, especially when dealing with persons the subject of a charge. The notifier is aggrieved by what has occurred and seeks a proper, full, careful and complete investigation. On a new investigation the doctor will be given every opportunity to answer the allegations. If he is guilty of any misconduct, then the statutory investigation must be concluded according to law. All of these arguments have substance.

9 Dr Kabourakis seeks an order in the nature of prohibition restraining the Board from proceeding with the informal hearing before a panel. On proper analysis his relief, if successful, is in the form of a certiorari-type order quashing the decision by the Board to hold another informal hearing, and an order prohibiting the Board from giving effect to its decision. This Court has jurisdiction to grant prerogative writ-type orders in respect to statutory bodies. The jurisdiction is subject to the procedural rules set out in Order 56 of the Rules of Court. The jurisdiction of the Court to review decisions and orders of a statutory body is limited. It is supervisory and does not entitle the Court to canvass matters that it would on an appeal. The common law jurisdiction is different to an appeal. An appeal is a creature of statute. See Fox v Percy.[2]

10 Judicial review is concerned with the authority of the statutory body and the legality of what it has done or seeks to do and is not concerned with the merits of the case. This is to be contrasted with an appeal where the question usually is whether the original decision was right or wrong, whereas the question on a judicial review is whether the decision is made within authority and in accordance with the law. Judicial review is not concerned with whether the decision was fair or correct.

11 Order 56 is concerned with procedure. It abolishes the remedies in the nature of the old prerogative writs but nevertheless preserves the jurisdiction of the Court to make prerogative writ-type orders. It is clear that the rules do not affect the common law jurisdiction of the Court, and it is equally clear that this Court has jurisdiction to make orders in the form similar to the old prerogative writs of certiorari and prohibition, namely, setting aside a decision to carry out an investigation and restraining a statutory body from proceeding when it does not have jurisdiction to do so.

12 Rule 56.02 deals with the time for commencement of a judicial review proceeding. By reason of paragraph 1, a proceeding must be commenced within 60 days after the date when the grounds for the grant of the relief or remedy claimed first arose. This present proceeding is out of time. Dr Kabourakis was advised on 2 February 2005 that the Board proposed to hold another informal hearing into his conduct. This proceeding was not commenced until 21 April 2005 and is outside the 60-day period. The Court has power under Rule 56.02(3) to extend time, but it is not permitted to extend time "except in special circumstances". The Court raised the issue with counsel. The Board did not raise the point and it does not seek to rely upon it. It is necessary to state further facts. On 16 February 2005, the Doctor's solicitors wrote to the Board asserting that the Board was functus officio and hence could not commence another informal hearing into the matters raised. Evidently the Board put on hold the informal hearing scheduled for 24 February 2005 and, after considering the matters raised by the Doctor's solicitors, determined to proceed. The doctor's solicitors were informed of this by letter dated 24 March 2005. On 4 April 2005, the Doctor's solicitors received another notice concerning the second informal hearing. As part of the period of 60 days was taken up with considering the question of whether the Board had power to hold a second informal hearing, and because the Board does not seek to argue against an extension of time, in my view there are special circumstances. I am prepared to extend time to bring the proceeding to 22 April 2005.

13 The scope of the common law jurisdiction of this Court was discussed by the High Court in Craig v South Australia.[3] As the Court held, the jurisdiction enables the quashing of an impugned decision on one or more of a number of distinct established grounds: most importantly, jurisdictional error, failing to observe some applicable requirement of procedural fairness, or fraud, and error of law on the face of the record. The confined nature of the jurisdiction was stated by Brennan J in Attorney-General (NSW) v Quin[4] where his Honour said:

[6]

15 Counsel on behalf of Dr Kabourakis submits that the Board does not have the power to hold a further informal hearing, having already held a hearing and accepted the decision of the panel. The issue is a narrow one. It comes down to this: does the Board have authority under the Act to hold a further informal hearing into allegations made against a registered medical practitioner after it has established a panel which has carried out an informal hearing and made a determination which was accepted by the Board? The reason for the further informal hearing is that the Board failed to place all relevant information before the panel on the first hearing. This Court is not concerned with the merits of the allegations made. However, the Court has read the letter requesting a report from Dr Summons and his report and in my opinion his report is relevant to the allegations made and is of substance.

The Board, its Functions and Investigation

16 The Board is a statutory body. Its jurisdiction, authority, powers and obligations are to be found within the four corners of the Act which created it. The Board may only do what Parliament has expressly authorised it to do and "whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised ... ".[5] It follows that what the Board can do and what it cannot do is a question of interpretation of the statute. The rules of statutory interpretation are important.

17 The purposes of the Act are set out in s.1. The main purposes of the Act, inter alia, are to protect the public by providing for investigations into the professional conduct, performance and ability to practise of registered medical practitioners, to establish the Board and to provide for other related matters.

18 Division 1 of Part 6 deals with the Board. Section 66 deals with the powers and functions of the Board. The Board has the functions, inter alia, of regulating the standards of medical practice in the public interest, investigating the professional conduct, professional performance or ability to practise of practitioners, and imposing sanctions where necessary.[6] It also has the function of administering the Act.[7] Of the 12 members of the Board, nine must be registered medical practitioners.[8]

19 Part 3 provides for investigations. By reason of s.22(1), a person may notify the Board about any matter relating to the practitioner if the person believes that the medical practitioner may have engaged in unprofessional conduct or that the practitioner's professional performance may be unsatisfactory.[9] The deceased's patient's mother exercised that right in this case. If the Board is of the opinion that the notification is not a matter required to be dealt with by the Health Services Commissioner under s.23, and if it has not determined the notification to be frivolous or vexatious, the Board is bound to investigate the notification.[10]

20 The first step in the investigation by the Board is that it must conduct a preliminary investigation into the notification.[11] The reason for the preliminary investigation is to determine whether or not to conduct an informal or formal hearing or whether or not performance review should be carried out.[12] The Board appointed a doctor to carry out the investigation. This appointment was made pursuant to s.25(5). This appointment delegates to the person appointed the Board's power to conduct a preliminary examination other than its power to make determinations upon a preliminary investigation. Section 29 requires the investigator to give notice of the preliminary investigation to the Doctor.

21 Division 3A of Part 3 deals with the allegations of professional misconduct. Section 38K provides what is to occur on the completion of the preliminary investigation. Section 38K(1) provides that upon completing the preliminary investigation the investigator may make one of a number of recommendations. One of the recommendations is that "an informal or formal hearing be held into the matter". The investigator recommended that there be an informal hearing into the matter. By reason of s.38K(2) it was then a question for the Board to determine whether or not to act on the recommendation of the investigator. It so determined and the Board appointed a panel to hold an informal hearing.

22 An informal hearing is less serious than a formal hearing, in that if an adverse finding is made against the practitioner there are less severe penalties - compare s.43(2) with 45A(2). The panel appointed to conduct an informal hearing may make a finding either that the practitioner has not engaged in unprofessional conduct or that the practitioner has engaged in unprofessional conduct "which is not of a serious nature".[13] If the panel finds that the practitioner is guilty of unprofessional conduct which is not of a serious nature, the panel is authorised to make one or more of a number of determinations, namely, that the practitioner undergo counselling, undergo further education, and/or be cautioned or reprimanded.[14]

23 The panel for an informal hearing is to consist of not more than three persons who are members of the Board, and at least one of whom is a registered medical practitioner. Section 40(3) provides that a person is not entitled to be a member of the panel if the person has undertaken a preliminary investigation into the matter. Notice of the informal hearing must be given to the practitioner and the contents of the notice are specified by s.41. Notice is also to be given to the notifier. Section 42 prescribes the conduct of an informal hearing, namely, that the panel must hear and determine the matter before it, that the practitioner is entitled to be present and make submissions but is not entitled to be represented, and that the proceedings must not be open to the public. Section 52 provides for the procedure at hearings. The panel is not bound by the rules of evidence, and is bound by the rules of natural justice. The proceeding must be conducted with little formality and technicality consistent with the requirements of the Act and the proper consideration of the matter.

24 The panel conducted an informal hearing on 30 October 2003. Dr Kabourakis was given the opportunity to be heard. The panel considered the allegations and on 13 November 2003 found, pursuant to s.43(1)(b), that Dr Kabourakis had not engaged in unprofessional conduct. Section 54 deals with the effect of the finding. It provides:

[8]

25 The finding was made on 13 November 2003 and came into operation on that day. What is meant by "a determination" is a moot point. I will return to the issue later.

26 Part 4 gives the right to any person whose interests are affected by a relevant decision, finding or determination to apply to the Victorian Civil and Administrative Tribunal for a review, but it was not open to the notifier in this case to have reviewed a finding by a panel at an informal hearing that the medical practitioner had not engaged in unprofessional conduct.

A. Power of Board to hold second informal hearing

27 There is no express provision in the Act allowing the Board to ignore or set aside a finding made by a panel at an informal hearing, and to establish a new panel to hear the same allegations by way of another informal hearing. The plaintiff's submission was that the Board had no power or authority to establish a second panel to conduct a second informal hearing into allegations which had already been the subject of an informal hearing resulting in a finding by a panel. The plaintiff prayed in aid of the construction of the Act, the principle of functus officio. It was further submitted that if the Court came to the view that there was power to hold a second informal hearing, the doctrine of res judicata applied, or alternatively it would be an abuse of the Board's power for it to hold another informal hearing because, inter alia, it would expose the Doctor to double jeopardy. The Board for its part submitted that the Act expressly gave the power to the Board to appoint a second panel. Further, it was necessary in discharging its statutory duty to protect the public and maintain the integrity and standards of the profession that any complaint concerning the conduct of a medical practitioner should be properly and fully investigated. The Board submitted that the doctrine of functus officio had no relevant application and that s.25(7) of the Act made it clear that it did have express power to hold a second informal hearing. In addition, s.40 of the Interpretation of Legislation Act 1984 (Vic) ("the Interpretation Act") implied into the Act a power to exercise a power or duty as occasion required its exercise.

B. Statutory authority or power?

28 The Board submits that s.25(7) gave it the authority to conduct an informal hearing of its own motion and that it could therefore conduct another informal hearing despite one having already been conducted and concluded. There are a number of avenues under the Act for notification and commencement of investigations. First, a person may notify the Board of any matter relating to a registered medical practitioner which relates to the professional conduct of the medical practitioner.[15] This was what occurred in the present matter. The deceased patient's mother notified the Board. The Board may deal with a health records complaint from the Health Services Commissioner and if that is done it is to be treated as if it were a notification under the Act. The Board is obliged to investigate a notification made under s.22. I have already traced what happens when a notification is made under s.22, and what happened in the present matter.

29 In addition, the Board may - and it is clearly discretionary - of its own motion determine to conduct a preliminary investigation into any matter that is set out in sub-s.(4) of s.25. This relates to the health of a medical practitioner, which includes incapacity or alcohol or drug dependency, or the ability of a medical student to have direct patient contact in the course of study.[16] Further, if the Board believes that the professional performance of a practitioner may be unsatisfactory, the Board may conduct a preliminary investigation into the matter by appointing a medical practitioner to conduct it. In addition, the Board has power under s.25(6) to conduct a preliminary investigation (by appointing a particular person or sub-committee) if it believes that a practitioner may have engaged in unprofessional conduct. These various statutory provisions each deal with a separate basis for conducting a preliminary investigation. The outcome of a preliminary investigation is dealt with by s.38K. The investigating body, whether it be an individual or a committee, in its discretion may make one of a number of recommendations. One of the recommendations is that the matter not proceed further, and another is that an informal or formal hearing be held. Following on from a preliminary investigation recommendation, the Board is bound to determine whether or not to act on the recommendation of the investigator. Section 39 deals with a determination made by the Board that an informal hearing be held into the professional conduct of the practitioner. It is clear from the foregoing that a number of avenues lead to the conduct of a preliminary investigation. The investigating body must make a recommendation and the Board must determine whether it should act upon it. Another avenue open to the Board is found in s.25(7).

30 Section 25 deals with the various obligations which rest upon the Board to investigate a complaint, and the various powers given to the Board with respect to such a complaint. The section may be summarised as follows:

[13]

(a) a formal hearing into the ability of a registered medical practitioner to practise medicine; or

(b) a formal hearing into the ability of a registered medical student to have direct patient contact as part of her or his course of study; or

(c) a review of the professional performance of a registered medical practitioner; or

(d) an informal or formal hearing into the professional conduct of a registered medical practitioner."

32 Section 25(7) clearly gives the Board power to determine of its own motion whether or not to, inter alia, hold an informal hearing into the professional conduct of a practitioner. This power is exercisable whether or not there has been a preliminary investigation. It is a power that is separate and distinct from the obligation resting on the Board in respect of a notification to the Board of a belief by a person that a medical practitioner has engaged in unprofessional conduct, or that the practitioner's performance is unsatisfactory[23], leading to a preliminary investigation, recommendation[24] and determination by the Board to accept a recommendation and hold a hearing. This sub-section gives an additional power to be exercised by the Board of its own motion, irrespective of whether there has been a preliminary investigation. Standing alone, it clearly empowers the Board to determine to hold an informal hearing. This can be exercised even after a preliminary investigation. The outcome of the latter resulting in a recommendation obliges the Board to determine whether or not to act on the recommendation. In my opinion, it is clear that having made the determination, the Board may of its own motion determine to conduct a hearing even if contrary to the recommendation. In my opinion, there is nothing in the Act that excludes this power from operation because an informal hearing has taken place and a finding has been made which in the circumstances was accepted by the Board. The power in s.25(7) is a stand alone power which the Board may exercise of its own motion.

33 There is no provision in the Act which precludes the Board from exercising the power given in s.25(7) after it has held an informal hearing which has made a finding pursuant to s.43. Counsel for Dr Kabourakis submitted that a consideration of the Act showed that it was the intention of Parliament that once an informal panel had made a finding that the practitioner had not engaged in unprofessional conduct, the Board was not able thereafter to hold a hearing into the original notification. In considering these submissions, the Court must take into account one of the main purposes of the Act, namely, "to protect the public by providing for the registration of medical practitioners and investigations into the professional conduct, professional performance and ability to practise of medical practitioners".[25] The Board has the function of regulating the standards of medical practice in the public interest and an obligation to investigate the professional conduct of medical practitioners.[26] It is not difficult to think of a situation where a notification made against a medical practitioner is investigated and a finding made by a panel exonerating the medical practitioner, and then further evidence is elicited which shows that to permit the medical practitioner to thereafter practice would be exposing members of the public to danger and would be contrary to the public interest.

34 Counsel drew attention to s.54, which provides that a determination of a panel is to have effect as if it was a determination of the Board.[27] However, Parliament has drawn a distinction between findings and determinations resulting from an informal hearing. Section 43(1) deals with the outcome of an informal hearing. The panel may make a finding. The finding may be either that the practitioner has engaged in unprofessional conduct which is not of a serious nature or that the practitioner has not engaged in unprofessional conduct. That is a finding, not a determination.[28] Section 43(2) provides for the situation where the finding is that the practitioner has engaged in unprofessional conduct. The panel is then required to make a determination. Section 56 requires the panel to give reasons for a determination but does not oblige the panel to give reasons for its findings. It would follow that if it made a determination which is a form of penalty then the medical practitioner has every right to know why. In those circumstances reasons would be given. On the other hand, if the finding is that he has not engaged in unprofessional conduct then there is no obligation to give reasons. Section 56(2) gives a right to a person affected by a determination of a panel to apply for reasons. In my opinion, the word "determination" in that context would oblige the panel to give reasons of a finding. But in my opinion s.54(2) is dealing with a determination of the panel within the meaning of s.43(1).

35 These provisions, in my opinion, do not lead to the conclusion that it was the intention of Parliament that the Board could not hold a further informal hearing.

36 Counsel for Dr Kabourakis also referred to s.40(3), which disentitles any person to be a member of a panel if the person has undertaken a preliminary investigation. The same disqualification applies to persons sitting on a panel for a formal hearing.[29] It was submitted that since there was no provision made to disqualify a person from being a member of a panel if that person had already sat on an informal hearing panel, this omission would lead to a conclusion that Parliament did not intend that the Board could hold another informal hearing into the same notification. However, in my view, any person who had sat on a previous occasion could not sit because the panel is bound by the rules of natural justice.[30]

37 I do not find any legislative intention in the provisions of the Act which leads to the conclusion that Parliament intended that once an informal hearing had taken place and a finding had been made, it was not open to the Board to conduct another informal hearing into the same notification where evidence was available but was not given to the first panel. Indeed, there are good policy reasons why the Parliament would not preclude the Board from further investigating a medical practitioner even though findings had been made in relation to a particular complaint. I refer to paragraph 33 of these reasons. However, that is not the end of the matter.

38 It was submitted on behalf of Dr Kabourakis that there were rules of law which precluded the Board from holding another informal hearing into the notification earlier dealt with, namely, the functus officio rule, res judicata, abuse of power and double jeopardy. It is convenient to consider the application of the functus officio rule with the contention of the Board that s.40 of the Interpretation Act applies to its powers and duties under the Medical Practice Act 1994. It was submitted on behalf of the Board that s.40 of the Interpretation Act applied and enabled the Board to exercise a power from time to time as the occasion required. It was further submitted that this enabled the Board to hold another informal hearing. The history of the provision demonstrates that it was enacted to overcome the inflexibility occasioned by the strict application of the doctrine of functus officio.

C. Functus officio and s.40 - Interpretation of Legislation Act 1984

39 Section 40 provides:

[18]

42 Section 41A deals with the power in an Act or a subordinate instrument to make an instrument, including the power to revoke or amend. It is similar in terms to the original s.17(3). It was submitted that s.41A empowers a body which has made, issued or granted an instrument to repeal, revoke, rescind, amend, alter or vary the instrument made in the exercise of that power unless a contrary intention appears. Counsel for Dr Kabourakis emphasised the width of the power given in s.41A and in particular the power to repeal or revoke what had already taken place. They contrasted that with the wording of s.40. It was submitted that s.40 was not expressed in such wide language and accordingly should be confined to an exercise of power which did not undo what had occurred in the past. I do not accept that submission. The wording of s.41A in my opinion does not qualify the provisions of s.40. Section 41A overcomes the principle of law which held that a rule-making authority was functus officio on the exercise of its power to make a rule and accordingly was not authorised thereafter to rescind or vary in any way the original rule. It was to overcome this principle that s.17(3) was passed in 1890.

43 The section is the same as the English Act of 1889.[31]

44 One thing that can be said is that s.32 of the English Act and s.40 of our Act have been overlooked in the past and have been rarely used. It was submitted on behalf of the Board that s.40 empowered the Board to do what it is has done. That is, it has the power and the duty to properly and carefully consider a notification of professional misconduct and, if the investigation has not been properly carried out, it does have the power to reconsider the matter from time to time because in all the circumstances the occasion required it

45 Our s.40 is the same as the English Act of 1889. However, there has been a slight change to the English legislation, now s.12(1) of the Interpretation Act 1978. In my view the slight change in the words does not change its effect and application. As an example of where the provision has been overlooked, I refer to R v Clerkennell Stipendiary Magistrate ex parte Mays.[32] This is clear from the observations made in In re Wilson.[33]

46 The question arises, when does s.40 apply to an Act of Parliament? The section implies the provision and the power into every Act, unless there is a contrary intention. If the section applies, it means that if the enactment contains a power or duty the power may be exercised and the duty performed from time to time as the occasion required. Does the section have such a wide application? If it does, it goes a long way to nullifying the operation of the functus officio rule.

47 The primary source of the intention of Parliament is the words of the enactment construed in their normal and natural meaning. The context including the enactment as a whole must be considered in determining what the Parliament's intention was. A full analysis of the enactment may qualify the normal meaning of the words. In addition the modern approach to interpretation requires the Court to determine a construction that promotes the purpose or object underlying the Act.[34] Applying those principles, s.40 applies to the Board's duties and powers, unless there is a contrary intention.

48 The provision was enacted to overcome the functus officio rule, that is, that once a person or body has discharged a statutory power or duty by exercising it, the person or body has no authority thereafter to embark upon the exercise again. It is a rule that has been applied for well over 200 years. It was applied with particular rigour to the effect upon an arbitrator's powers when an award was made.[35] It has also been applied with rigour in respect to what a magistrate or justices of the peace may do after pronouncing a decision. A strict application of the rule can produce results which defy common sense and reflect badly upon the legal system. In Mordue v Palmer, an arbitrator signed his award and then it was ascertained that there was an error in it because of a mistake made by a clerk in copying the draft. The arbitrator, adopting a pragmatic approach, corrected the error and signed a fresh award. Despite the good sense of Bacon V-C who was prepared to give effect to what the arbitrator did, on appeal the Court said that the second award was a nullity. Some of the cases in relation to the powers are of justices sitting in a local court also show a rigorous application of a principle that sometimes leads to absurd results.[36] It was refreshing to see a more realistic approach taken in England in the recent decision of Steward v DPP.[37] In a modern setting, a strict application of the rule to statutory bodies exercising powers and authority sometimes leads to absurd results, and the rule should be looked at to provide far greater flexibility. The principle that if a decision is made by a statutory body, which was clearly made in error as a result of some obvious mistake, it is an offence to common sense to suggest that the only avenue open to correct the error is to appeal, state a case, or seek judicial review. The doctrine should be qualified to enable a decision maker or legislative authority to correct an obvious error by re-visiting the process. The principle does not apply if the person or body never performed the duty or power at all. Further, it is not an inflexible rule. It does depend on the statutory provisions concerning the power or duty. As was said by Romer LJ in Davies v Howe Bridge Spinner Co Ltd:[38]

[26]

53 It follows that the operation of the functus officio rule where a body is making an administrative decision is not as strictly applied as it is in other areas. A rigid approach may be inconsistent with good administration and fairness. That is, fairness in the present context to both Dr Kabourakis and the notifier.

54 It is said that s.40 of the Interpretation of Legislation Act will overcome the full rigour of the rule and give the statutory body the opportunity to further exercise the power given to it. As I have found, whilst it may be arguable that the panel which undertook the first informal hearing and made a finding is at the end of its statutory power, the presence of s.27(5) makes it clear in my opinion that the Board has a separate and distinct power which it may exercise of its own motion. That is what it has done by establishing a second panel to undertake a second informal hearing. In addition, there is nothing in the Act which precludes the Board from correcting a mistake by holding a second informal hearing in accordance with the principles stated in Bhardwas's case. That is, the decision is an administrative one, consistent with the Board's duty to properly investigate a notification in the interests of good administration and fairness, and the functus officio rule must give way. It follows that the Board has the power in accordance with the principles stated by the High Court.

55 The conclusions do not depend upon the operation of s.40.

56 The mischief the section was enacted to overcome was the rigour of the application of the functus officio rule. In the fourth edition of Craies Statute Law (1907) the learned author[43] referred to the principle that if power is given to the Crown by statute for the purpose of something to be done, once the power has been exercised it is exhausted and cannot be exercised again. The learned author referred to the Union with Ireland Act (1800), which empowered the Crown to appoint by Royal Proclamation certain royal styles and titles. The power was exercised immediately after the passing of the Act in 1801 and, having been exercised, the power was exhausted. The author then went on to say:

[32]

60 The Court did not apply the provisions of the Interpretation Act.

61 In the last two editions of Halsbury's Laws of England, the learned authors refer to the particular mischief which the section overcame, namely, the inconvenience of having to pass another Act of Parliament if, because of changed circumstances, it was necessary to exercise the power again. Recently the House of Lords has applied the provision.

62 In the case of In Re Wilson,[47] the House was concerned with the power of justices to vary an order. The applicant appeared before justices for non-payment of fines and, acting under an Act, the justices fixed a term of 60 days' imprisonment but postponed the issue of a warrant on the condition that the applicant paid off the fines at ₤3 a week. The chairman told the applicant that if his circumstances changed, he should inform the Court so that a variation could be made. The applicant later approached the Court but was told by the clerk that by reason of a decision in 1975, the Court had no power to vary the conditions of postponement. Lord Roskill delivered the opinion of the House and he held that on a true construction of the section of the Act, since no contrary intention appeared, the powers given by the section could be exercised from time to time as the occasion demanded in accordance with s.12(1) of the Interpretation Act 1978. Section 12(1) of the 1978 Act is in similar terms to the provision of 1889. Accordingly the justices had the powers to make orders as often as the occasion required it. An earlier decision of a Divisional Court in 1975 held that the justices did not have the jurisdiction to make a further order but the Divisional Court had not been not apprised of the section. Lord Roskill, after referring to the section in the Interpretation of Legislation Act 1978, observed that it applied "to the construction of s.77(2) of the Act of 1980". His Lordship was referring to the Magistrates' Court s Acts and then went on to observe:[48]

[46]

72 Counsel for Dr Kabourakis submitted that there was a contrary intention to be found in the Act. In this regard they referred to the provisions concerning disqualification of investigators sitting on panel hearings, and to s.54(2), concerning the effect of a determination of the panel. I have already referred to these provisions. In my view, they do not indicate a contrary intention precluding the application of s.40 of the Interpretation Act. In addition, counsel referred to a number of authorities emphasising the importance of the finality of the decision-making process. Reference was made to what Gleeson CJ said in the Bhardwaj case,[59] and what was stated by members of the High Court in D'Orta-Ekeniake v Victoria Legal Aid.[60] Reference was also made to what Grove J said in Walter Construction Group Limited v Fair Trading Administration Corporation,[61] to Export Developments Grants Board v EMI (Australia) Ltd[62] and two Queensland cases, namely, Firearm Distributors v Carson[63] and Ping v Medical Board of Queensland.[64]

73 Each of the cases was concerned with particular statutory provisions. The final determinant is a question of interpretation of the Act in question. Giving full effect to the importance of finality, the Act does not contain a contrary intention to the implication of s.40.

74 This proceeding is seeking judicial review. In my opinion, whether or not "the occasion requires it" is a matter for assessment by the Board itself. In my view, it is not a question for judicial review. Whether or not there is a contrary intention in the Act itself is of course a question that can be determined on judicial review. However, once it is accepted that the provision is implied into the Act, then its operation is a matter for the Board.

75 But if I am incorrect and it is open on this judicial review to go into the merits of the decision to hold a new informal hearing on all the proper material, then in my opinion it was clearly open to the Board in all the circumstances to take the step that it did. Natural justice is not a one-way street. In the bulk of cases natural justice focuses on the person the subject of a complaint or allegation. On the other hand, the person notifying the complaint also has an interest in the outcome and is entitled to natural justice in the sense that the notification is fairly and carefully considered on all relevant material.[65] In my opinion, the Board was correct in coming to the decision that the occasion required that the duty be performed again, namely, to properly, carefully and fairly consider and determine the notification on all relevant material.

D. Res Judicata

76 It was submitted on behalf of the Doctor that if the Board had the power to establish a second panel to conduct an informal hearing, the doctrine of res judicata presented an obstacle to the second informal hearing because the issue of the doctor's conduct had been determined and bound the parties. It was submitted that the Board is a court of competent jurisdiction for the purposes of the doctrine, and reference was made to the decision of O'Bryan J in Basser v Medical Board of Victoria.[66] Basser's case concerned an appeal from a decision made by the Medical Board of Victoria to remove the name of a doctor from the register of legally qualified medical practitioners. The Act which empowered the Board to do this was the Medical Practitioners Act 1970 and its provisions are different to the provisions of the present Act, in particular the procedures to be followed in considering and determining a complaint. In that case, the doctor appeared before the Board in November 1979 and no specific charge was laid against him. The Board sought information from him. He gave the information. As a result of that inquiry the Board censured the doctor. In July 1980, the doctor was given notice that it was the intention of the Board to inquire into a charge which was stated in a notice given to him. The inquiry was held by the Board over a three day period and eventually the Board announced that it was satisfied that the doctor had been guilty of infamous conduct. At the outset of the hearing, the point was taken that the matter had already been decided by the first inquiry and hence the doctrine of res judicata applied. O'Bryan J considered whether res judicata applied to the Board's hearings.[67] The learned judge considered a number of cases concerning the doctrine of res judicata and considered and determined the question whether the Board was a court of competent jurisdiction for the purposes of the doctrine. He held that it was. There are major differences between the present procedures and the procedures under the former Act of 1970. In Basser's case, the Board itself had conducted an enquiry, the medical practitioner was charged with a specific misconduct offence, and the Board had coercive powers and required evidence to be given on oath. In my opinion, the differences between the old and new procedures means that the finding by O'Bryan J cannot be applied to an informal hearing under the new Act. However, O'Bryan J held that the plea of res judicata did not apply because the parties to the first inquiry were not the same as the parties to the second inquiry, and, secondly, that there was difficulty in determining the issues of fact which had been disposed of at the first inquiry. He held that the plea of res judicata "does not apply as there has been no determination or decision in earlier litigation between the same parties in the present proceeding".

77 The Board's counsel submitted that the principle of res judicata could not apply if the Court came to the conclusion that the Board had the authority to establish a second panel to carry out an informal hearing. It was submitted that the statutory function cannot be frustrated by the common law doctrine. I disagree. The principle of res judicata does apply in circumstances where a court or a tribunal has the power to exercise its jurisdiction or authority. The principle operates to estop the parties from re-litigating an issue which has already been decided.

78 In Spencer Bower Turner and Handley - Res Judicata - 3rd ed. (1996), the learned authors in paragraph 1 define the doctrine as follows:

[56]

87 A statutory tribunal may be a tribunal to which the doctrine extends, but it depends upon whether or not in the exercise of its decision making process it finally decides a question arising between the parties. There is no doubt that the doctrine does not apply where a tribunal is making a mere administrative decision.[74] The decision must be one made in respect to an issue between parties, after considering the evidence and argument.[75]

88 In my opinion, what the panel did, resulting in a finding made by it at the first informal hearing, does not amount to a final judgment between parties litigating an issue or cause. The fact was that the informal hearing did not involve and was not made in the course of any lis inter partes.[76] There was no issue between the notifier and the doctor. The notifier notified the Board that she believed Dr Kabourakis may have engaged in unsatisfactory professional performance when treating her son that was unsatisfactory. By reason of s.25, the Board was bound to investigate the notification. It is not a question of parties litigating a cause. It is not a question of a lis. The informal hearing was not a judicial determination of an issue. The informal hearing did not decide any rights between parties. The findings of the panel were reviewable if an adverse finding was made by the medical practitioner. The members of the panel may not include a legal practitioner although there would be power to appoint a legal practitioner to the panel. The hearings are closed to the public and legal representation is not permitted. Further, the proceeding must be conducted with as little formality and technicality as possible, and the panel is not bound by the rules of evidence. There is no suggestion that evidence should be given on oath. All of these factors lead to the conclusion that the informal hearing panel did not make a final judgment between parties who were litigating an issue, which resulted in the establishment of a right. Res judicata was discussed in its application to an administrative tribunal by Lord Bridge of Harwick in Thrasyvoulou v Environment Secretary [1990] 2 A.C 273. At 289, his Lordship said:

At a glance

Court

Decision date

Before

Source

Judgment (63 paragraphs)

Parties

Cases Cited (12)