Plaintiff v Defendant [2007] VSC 147 | Case summary

Plaintiff v Defendant [2007] VSC 147 | Case summary | Zoe

[3]

1 A proceeding instituted by originating motion, in which the plaintiff seeks a declaration that the defendant, the Ombudsman of this State, does not have jurisdiction to enquire into or to investigate certain complaints made to him by members of the public, or is precluded by reason of statute from enquiring into or investigating the complaints. The proceeding is brought pursuant to s.27 of the Ombudsman Act 1973 ("the Act").

Parties

2 The plaintiff, Dr Paul Nisselle ("Dr Nisselle"), is and was at all relevant times a medical practitioner and the Convenor of Medical Panels appointed by a Minister of the Crown pursuant to s.63 of the Accident Compensation Act 1985 ("the AC Act"). Dr Nisselle was also appointed by the Governor in Council as a Member of the Medical Panels.

3 The defendant, George Brouwer ("the Ombudsman"), is the Ombudsman in this State and was appointed by the Governor in Council pursuant to the Act.

The Dispute and Issues

4 The AC Act was enacted in 1985. One of the objects of the Act was to provide an adequate and just compensation scheme for workers who suffered injury at work. Another object was to ensure that the costs associated with the compensation scheme were contained, in order to minimise the burden on Victorian businesses.[1] Part 3 of the Act deals with dispute resolution. Section 39 gives exclusive jurisdiction to the County Court to enquire into, hear and determine, inter alia, any question or matter arising under the AC Act, from any decision of, inter alia, the Victorian WorkCover Authority, an employer or self insurer. A like jurisdiction was also given to the Magistrates' Court in respect of any issue where the value did not exceed $40,000 or was in respect of the making of weekly payments.[2]

5 Section 45 deals with medical questions. Sub-section (1) provides that the County Court, when exercising jurisdiction, may refer a medical question or, if a party to the proceeding requests that a medical question be referred, must do so to "a Medical Panel for an opinion under this Division". A certificate or report given by a Medical Panel is admissible in evidence in any proceeding under the Act by reason of s.48(1).

6 Division 3 of Part 3 deals with the establishment of a Medical Panel and its powers and procedures.

7 Section 63(1) provides that a Panel must be constituted as necessary for the purposes of the AC Act to carry out functions conferred on it under that Act. The AC Act empowers the Governor in Council to appoint medical practitioners for the purpose of constituting Panels.[3] From the list of Members so appointed, the Minister is obliged to appoint a Convenor and also a Deputy Convenor. Dr Nisselle was appointed a Convenor. The Convenor appoints a Medical Panel. Section 63(4) provides:

[11]

12 It is apparent that the opinion of the Medical Panel is final and binding and must be accepted as final and conclusive by, inter alia, a Court. It is trite to observe that the opinion will have a substantial and conclusive effect upon the rights of the parties concerned. There is no right of appeal from the opinion of the Medical Panel. However, judicial review of the Medical Panel's decision is available to the Supreme Court pursuant to the Administrative Law Act 1985 or the common law judicial review jurisdiction of the Court.

13 During February and March 2006, the Ombudsman forwarded three letters to Dr Nisselle, referring to complaints made by three persons to the Ombudsman's office and indicating that his office was considering whether to conduct an investigation under the Act.

14 It was contended by counsel on behalf of the Ombudsman that the identity of the complainants should not be disclosed, and reference was made to s.20 of the Act. Whether or not s.20 prevents the identity of the complainants from being revealed is a moot point, but in the circumstances counsel agreed with the Court's view that it was unnecessary to identify them in these reasons. Accordingly, I will refer to the three persons as A, B and C.

15 The complaints made are, to a degree, similar. Complainant A complained that the presiding Member of a Medical Panel, who had examined A, was not acting independently because the medical practitioner had also performed medical examinations for the Victorian WorkCover Authority. The allegation was one of perceived bias. The Ombudsman informed Dr Nisselle, in a letter dated 14 February 2006, that he was making initial inquiries under s.13A of the Act to decide whether this was a matter he should investigate. In the letter, the Ombudsman referred to information obtained from the Registrar of Medical Panels that practitioners who held contract positions with the WorkCover Authority or its agents or practitioners, and who undertook a high volume of medical assessments for agents, carried a high risk of apprehension of bias and were therefore not considered suitable candidates for appointment to Medical Panels.

16 The Ombudsman sought responses to the queries raised in his letter and Dr Nisselle on 21 February 2006 forwarded a letter seeking to answer those queries. Dr Nisselle emphasised that doctors who perform an examination pursuant to s.112 of the AC Act [5] were not employees or agents of the WorkCover Authority but were, in fact, independent consultants performing independent medical examinations. He stated that the complainant misunderstood the position, believing that the medical practitioner was employed by the WorkCover Authority. He went on to observe that in considering appointment to a Medical Panel, a factor that was taken into account was the volume of examinations performed pursuant to s.112 of the Act. Dr Nisselle stated that the concern about apprehension of bias or conflict of interest was recognised and balanced against "other factors such as the availability of medical practitioners practising in relevant specialties for appointment to a Medical Panel and the volume of referrals for a Medical Panel opinion, each of which must be produced within a statutory time frame (60 days) with the resources available."

17 Dr Nissell also opined that it was "not my role to determine whether there actually is a conflict of interest or there is an actual apprehension of bias for a particular eligible medical practitioner, because if there was, then that medical practitioner would not have been appointed to the list of eligible medical practitioners by the Governor in Council."

18 I interpolate to observe that I have some doubts about the procedures adopted by Dr Nisselle with respect to his role.

19 Complainant B also made a complaint alleging possible conflict of interest and perceived bias, and on 21 February 2006, the Ombudsman informed Dr Nisselle of the complaint and sought a response to Complainant B's allegations. In substance, Complainant B alleged that two Members of the Panel, who were assessing the complainant, had a possible conflict of interest because they relied upon a report by another medical practitioner who had examined Complainant B for the Victorian WorkCover Authority. It was asserted that the conflict of interest arose because all three, that is, the Members of the Panel and the medical practitioner, were members of the academic staff at the Monash University Faculty of Medicine. It was asserted by the Ombudsman that the closeness of the association of the three raised the possibility of apprehended bias. Again, it was noted that the Ombudsman was making initial inquiries to determine whether or not he would investigate the matter. Dr Nisselle responded by letter dated 1 March 2006. Dr Nisselle reiterated what he had said in his earlier letter, namely, that he did not consider it was his role to determine whether there was a possible conflict of interest or an apprehension of bias when appointing a medical practitioner to the Panel. As I have stated, I query the wisdom of that observation. Dr Nisselle concluded that if the complainant considered there was a conflict of interest or an apprehension of bias or that the Panel lacked appropriate expertise, then the appropriate avenue for the complainant was to apply to the Supreme Court for judicial review.

20 Complainant C made a complaint to the Ombudsman in March 2006. The Ombudsman wrote to Dr Nisselle on 28 March 2006. Complainant C also raised a concern as to conflict of interest regarding the appointment of Members to a Medical Panel. Evidently, the complainant had complained that the presiding Member of a Panel was the business or practice partner of the doctor who had carried out a medical examination under s.112 of the Act at the request of the Authority or self insurer. After Complainant C had complained, a new presiding Member was appointed.

21 The Ombudsman informed Dr Nisselle that he had decided to formally investigate the complaints under s.14 of the Act. On 6 April 2006, Dr Nisselle informed the Ombudsman that he had received legal advice to the effect that the Ombudsman did not have jurisdiction to consider the complaints and was precluded from enquiring into or investigating the actions of the Convenor. Dr Nisselle followed up with a response to the matters raised by Complainant C, stating that the presiding Member of the Panel had been replaced.

22 On 3 July 2006, the proceeding in this Court was instituted by Originating Motion. It was contended by counsel on behalf of Dr Nisselle that the Ombudsman did not have the jurisdiction or power to conduct any inquiry pursuant to the Act. It was submitted, in the alternative, that if the Ombudsman did have jurisdiction or power to investigate, then by reason of the provisions of ss.65(10) of the AC Act and of s.13(3)(a) of the Act, he was precluded from doing so. It was submitted on behalf of the Ombudsman that he did have the jurisdiction and was not precluded from performing his statutory functions by the said statutory provisions. These are the issues for consideration and determination in this proceeding.

23 The application by Dr Nisselle is brought pursuant to s.27 of the Act, which provides:

[20]

31 The submission is simply put. By reason of s.65(10) of the AC Act, Dr Nisselle has the same protection and immunity as a Judge of the Supreme Court in performing his duties, and by reason of s.13(3)(a) of the Act, the Ombudsman is precluded from inquiring into or investigating any administrative action taken by a court of law or by a Judge.

32 Counsel for the Ombudsman, on the other hand, submits that the performance by Dr Nisselle of the statutory function to appoint a Medical Panel is an administrative act within the meaning of s.13(1) of the Act, and that s.65(10) of the AC Act, when combined with s.13(3)(a) of the Act, does not preclude the Ombudsman from enquiring into and investigating the exercise of power by Dr Nisselle as the Convenor.

Appointment of a Medical Panel - is it an Administrative Act?

33 The scheme of the AC Act requires Dr Nisselle as Convenor to appoint not more than 5 medical practitioners to constitute a Panel from the list of Members when a referral is made. Once appointed, the Panel considers the issues and eventually arrives at an opinion. The opinion binds the Court which is hearing the dispute between worker and employer. In making his decision to appoint a Panel and its membership, Dr Nisselle has to consider a number of matters. By reason of s.63(5), if a medical practitioner on the list of Members has treated or examined or been engaged to treat or examine a worker, the practitioner must not be a Member of a Medical Panel examining the worker. It is implicit in the legislative scheme for the determination of compensation that the practitioners forming the Medical Panel would have the necessary expertise to consider the particular medical problems of the worker. Dr Nisselle, no doubt, would give consideration to that issue. The Convenor may give directions as to the arrangement of business of Medical Panels.[6] By reason of s.65(9), the Convenor may give directions as to the procedures of the Medical Panels.

34 It is noted that s.65(8) of the AC Act authorises the Minister, for the purpose of ensuring procedural fairness in the procedures of the Panels and facilitating the proper administration of the Panels, to issue guidelines with respect to procedures. Despite this power, no relevant guidelines have been issued. I have set out above the views of Dr Nisselle with respect to appointment of Members of the Panel and issues of possible conflict of interest or perception of bias by Members. If a worker raises an issue of conflict of interest or perception of bias, the Convenor may take the step of removing the Member and replacing him or her. The matters I have summarised provide evidence of the nature of the duties performed by Dr Nisselle as Convenor of a Medical Panel.

35 Section 2, which is the definition section, defines "administrative action" as meaning:

[29]

39 It is clear that Parliament has not set out to define what is meant by "administration" and has left it as a flexible word to be applied where the circumstances lead to the conclusion that the conduct in question was administrative action. The four examples which are included in the definition do not in themselves assist in defining what is "administrative action". It is the performance or refusal of a particular course of conduct which in embraced by the phrase "administrative action", but the particular acts or failure to act set out in the definition do not in themselves define what is "administrative action". The examples are features of conduct which is administrative action.

40 Before referring to the authorities in this State, I propose to consider the issue by applying basic principles. The principal function of the Ombudsman is to enquire into or investigate any administrative action. As already noted, the definition of "administrative action" contained in s.2 does not provide any real guidance as to what is administrative action compared with any other action taken by the bodies referred to in s.13(1). The Act was passed in 1973. Consideration of the authorities to that time and the textbooks reveals that there was no satisfactory definition of what was administrative action. One may infer that Parliament intended that the phrase should be construed in a flexible and wide manner.

41 What the phrase "administrative action" means is a question of law. However, whether the decision maker is undertaking administrative action is a question of fact. In interpreting a provision in an Act, the Court seeks to determine the intention of Parliament. The primary source of that intention is the words used, construed in their normal and natural meaning, unless the Act or surrounding circumstances dictate otherwise, and after considering the context, reading the Act as a whole and giving effect to the purpose of the provision.

42 Turning to the dictionary, the word "administrative" is defined in the Shorter Oxford English Dictionary as "pertaining to management; executive". The same dictionary defines "administer" as "to manage as a steward, to carry on."

43 The Australian Concise Oxford Dictionary, 3rd ed, defines "administrative" as "concerning or relating to the management of affairs".

44 Based upon those definitions, there is a strong argument that Dr Nisselle, when he determined both the number of Members and the constitution of the Medical Panel pursuant to s.63(4) of the AC Act, was performing an administrative function. He had available to him the list of Members appointed by the Governor in Council, and guided by the AC Act he determined the constitution of a particular Medical Panel. Once that decision was made, the Panel was invested with authority to perform the various statutory tasks. This would appear to be an administrative action. Accepting that Dr Nisselle had powers which he could exercise relating to fixing a date and place for the Medical Panel's examination of the workers,[11] the arrangement of the business of Panels[12] and the giving of directions as to the procedures of Panels,[13] once those powers were performed his involvement ceased. The Medical Panel then commenced its function. There was a clear line of demarcation between Dr Nisselle's actions and the functions of the Medical Panel. The fact that it may become necessary to replace a Member of the Panel for some reason does not contradict that proposition. This would result in the creation of a new Panel, which would have to perform its functions afresh.

45 However, one cannot rely upon the definition of "administrative action" as found in the dictionaries. It is necessary to go back to 1973 to determine what was meant by the phrase "administrative action" in law. Writing in that year, Professor De Smith, in the third edition of his work Judicial Review of Administrative Action, noted[14] in the context of the common law judicial review jurisdiction that it often depended "on whether a given function is classified as judicial or administrative." The learned author then went on to observe:

[45]

57 His Honour observed that if it had been merely a complaint of an assault in breach of the common law and of a regulation, then it would not have involved a matter of administration. But his Honour stated that the presence of the Governor and the Chief Prison Officer at the time of the assault changed the situation. His Honour concluded it was a matter of administration.

58 I respectfully agree with Lush J that the limits of the phrase "relating to a matter of administration" are difficult to determine and that each case must be determined in relation to the particular circumstances. On the other hand, the cases and texts concerning judicial review and differences between administrative action and other forms of action have drawn a distinction between "administrative action" and legislative and judicial and quasi-judicial acts. As a starting point, a useful guideline is to distinguish between administrative action and legislative and judicial actions. I emphasise it is no more than a guideline and a starting point to consideration of what is a mixed question of Parliamentary intention (law) and the particular facts. It is impossible to lay down a definition which determines a precise line of demarcation between administrative action and other forms of action or inaction by Government Departments and Public Statutory Bodies.

59 Late in 1975, Dunn J heard another case concerning the Ombudsman's jurisdiction. It was Booth v Dillon (No. 2).[20] In that case, the Court dealt with two separate complaints. The first related to statements made to the press by a senior prison officer concerning a life sentence prisoner who was attempting to obtain release on parole. The second complaint concerned action taken by the Department of Social Welfare to ensure that prisoners in a certain division of Pentridge were not subject to sexual attack by fellow inmates. His Honour held that both complaints were not within jurisdiction. The statement made by the senior prison officer was unauthorised and not made in the course of his employment. Hence, it was not administrative action. With respect to the sleeping arrangements of prisoners, his Honour held it was a matter of policy and not administrative action. However, any action taken to deal with alleged sexual assaults was a matter of administration.

60 Dunn J's approach to the question was to consider the facts of each complaint. His Honour did not seek to define what was meant by the phrase "administrative action". The case stands, of course, for two propositions. The first is that what a public servant may have said outside the scope of his employment and contrary to the Constitution Act Amendment Act 1958 and regulations was not a matter which the Ombudsman could deal with, because it was not made in the course of employment and therefore was not administrative action taken by a Government Department. The second proposition is that administrative action does not cover a question of policy, although his Honour did admit that it was a difficult problem because "no clear line of demarcation exists between what is involved in policy and what is involved in administration."

61 In the following year, being 1976, this Court considered the question again in three cases.

62 In Glenister v Dillon, the Court had to consider whether the failure by the Crown Law Department to bring to trial two persons who were in custody awaiting trial within a reasonable time was administrative action which empowered the Ombudsman under s.13(1) of the Act to conduct an investigation. In 1976, it was the Crown Law Department that prepared and filed presentments in criminal cases. The Court held that what the Ombudsman proposed to do in investigating the written complaints about the delay was expressly excluded from his jurisdiction by s.13(3)(b). Section 13(3)(b) of the Act precluded the Ombudsman from investigating any administrative action taken by a person acting as legal adviser to the Crown or as counsel for the Crown in any proceeding. However, two members of the Court considered what was meant by the phrase "administrative action" in s.13(1) of the Act. What their Honours said was obiter dicta.

63 However, as Mr Uren QC of counsel, who appeared with Mr Quinn for Dr. Nisselle, emphasised, their Honours' analysis has been followed and has stood the test of time, and no attempt has been made to amend the Act. On the other hand, it must be pointed out that the protection given under s.13(3)(b) would ensure that similar failure to perform the administrative action would preclude the Ombudsman from enquiring into or investigating the conduct.

64 The Full Court in Glenister v Dillon[21] interpreted the phrase "administrative action" as conduct arising in the course of administration which was not legislative or judicial. As the first step in the consideration of a question of jurisdiction, the approach is unobjectionable, however, the drawing of the line of demarcation may be difficult. It is appropriate at this stage to consider the decision.

65 In 1976, it was the function of the Crown Solicitor to receive the informations and the depositions from the committing Justices, and the Crown Solicitor was required to deliver them to the relevant court. The Crown was the prosecuting authority and the Crown Solicitor acted as the legal practitioner for the Crown to instruct counsel to prosecute. It was accepted that the Crown Solicitor in so acting could have been the cause of a delay bringing an accused person to trial. Two judges, Gillard and Menhennit JJ, considered the question of whether the Crown Solicitor was performing an administrative action in a Government Department. Gillard J[22] adopted the distinction drawn by Professor Holdsworth between administrative powers and legislative or judicial powers. The learned author had stated that administrative powers meant powers other than legislative or judicial. Gillard J then went on to consider s.13(1), and for the purposes of determining what was "administrative action", he put to one side the actions of a Public Statutory Body as being irrelevant to the issues in the proceeding.

66 His Honour said:[23]

[52]

72 His Honour observed that the Ombudsman did not have jurisdiction because the complaints made concerned "matters relating to the judicial arm of government in that they concerned the Crown Solicitor whose activities relate to the judicial arm of government. They do not relate to the administrative or executive arm of government." His Honour then went on to conclude that s.13(3)(b) also applied.

73 The third member of the Court, Dunn J, reached the same conclusion as the other Judges but confined his conclusion to the application of s.13(3)(b). Strictly, the ratio decidendi is the decision by the three members of the Court that s.13(3)(b) excluded the jurisdiction of the Ombudsman to investigate the complaints. However, I accept that the views expressed by Gillard and Menhennit JJ are of importance and, as Mr Uren submitted, have stood the test of time. I accept what their Honours said as to the general definition of "administrative action", namely, as being that which is not legislative or judicial. Their observations were confined to alleged administrative action taken "in any Government Department" and did not deal with the question of administrative action in a Public Statutory Body. But their Honours' observations apply to a Public Statutory Body. There is no doubt in that case that there was a close connection between the substance of the complaints made, and the activities of the Crown Solicitor in the judicial process. The activities of the Crown Solicitor in facilitating the bringing on of a criminal trial were clearly associated with the judicial process. The Crown Solicitor had an important role to play in the conduct of the judicial process and it was a continuing one. The bringing to trial was the first step of the trial process in which the Crown Solicitor was involved and which would conclude in an acquittal or sentence. His activities were part and parcel of the judicial process. Hence, they were not administrative. What Gillard and Menhennit JJ said in that case provides a guideline as to the definition of "administrative action", namely, conduct which is neither legislative nor judicial.

74 In the present proceeding, the Court is dealing with the actions of a person who is empowered pursuant to statute to perform a function which is not a function taken in a Government Department but is action taken in a Public Statutory Body. In my opinion, Glenister v Dillon does not lead to the conclusion that Dr Nisselle's activities in establishing and directing a Medical Panel are judicial. Dr Nisselle's activities cease once the Medical Panel commences to perform the task given to it by the AC Act. There is a clear line of demarcation between his activities and the activities of the Medical Panel, which, for present purposes, could be described as quasi-judicial. The mere fact that Dr Nisselle establishes a Medical Panel to perform its task does not, in my opinion, mean that his activities are of a judicial-type function.

75 In the next case of Glenister v Dillon (No. 2),[27] a complaint was made to the Ombudsman about the Public Solicitor, who was acting for the son of the complainants and who had failed to tell the complainants that their son was to appear for sentence on a particular day. Nelson J noted that the Public Solicitor was a person appointed by the Governor in Council to assist persons who were charged with criminal offences. His Honour observed:[28]

[56]

77 This decision shows that it is possible to have administrative acts mixed with judicial functions.

78 It is apparent from the authorities, and the generality of the definition of "administrative action", that it is impossible to lay down any exhaustive definition. The failure by Parliament to prescribe what is meant by the phrase "administrative action" leads to the conclusion, amply supported by reference to the authorities and the texts, that Parliament recognised the impossibility of formulating an appropriate and satisfactory definition and, further, did not wish to confine the jurisdiction of the Ombudsman but wished to permit the Ombudsman a degree of flexibility. Indeed, it is clear that Parliament intended that the application of the definition should be left to the particular circumstances. Mr Uren submitted that the authorities established that if the administrative action was closely related to judicial action, then the action was not administrative within the meaning of the Act. He submitted that Dr Nisselle was making a decision preliminary to a form of judicial hearing after the Panel was established. But the decision of Lush J shows that there may be an intermingling of administrative matters with what could be described as a judicial function. In Booth v Dillon (No. 1),[32] Lush J held that a complaint of an assault on a prisoner by a senior prison official, which one may assume could lead to judicial proceedings, also involved questions of administration in that certain senior prison officers and officials were involved. Further, in Booth v Dillon (No. 3),[33] Nelson J held that the actions of a prison Governor in exercising a statutory power to hear and determine a charge against a prisoner fell within the administrative responsibility for due order, management and discipline of a prison. Accordingly, the Ombudsman had jurisdiction as the actions related to a matter of administration even though the prison Governor's actions were of a quasi-judicial nature. As Lush J emphasised in the first case, it is very apparent that each case will have to be determined in accordance with its circumstances. In Glenister v Dillon,[34] the Full Court was dealing with a complaint concerning activities which were part and parcel of the judicial process.

79 Mr Uren submitted that the establishment of the Medical Panel, and its discharge of statutory powers leading to a decision, related to judicial matters, namely, the determination of a particular proceeding in the Court. It was submitted that the extensive powers given to the Panels under Division 3 of Part 3 of the AC Act had a significant, and in most cases decisive, effect on the judicial process. In particular, the provisions of s.68(3) of the AC Act showed the close connection between the Panel and the judicial process and, further, as s.68(4) demonstrated, the decision made by the Medical Panel had to be adopted and applied by any Court which referred the medical question to it. I accept that the Medical Panel's exercise of its statutory powers to reach an opinion on a medical question is closely related and connected to the judicial process.

80 However, the issue is whether that conclusion results in the appointment of the Panel by the Convenor Dr Nisselle being a judicial act rather than an administrative one?

81 It was submitted by Mr Robins of counsel for the Ombudsman, that the function performed by Dr Nisselle in appointing the Panel was a separate and distinct function from the performance by the Medical Panel of its functions in considering and determining the issues under the AC Act. Once Dr Nisselle had appointed the Panel, his involvement ceased and this was a separate function to the quasi-judicial function of the Medical Panel. In other words, there was a clear line of demarcation between the actions of Dr Nisselle and those of the Medical Panel. Nothing that Dr Nisselle did had any of the features of the performance of a judicial function. It was put on behalf of Dr Nisselle that what he was doing was not a matter of administration within the meaning of s.2 of the Act. It was submitted that in discharging its functions, the Medical Panel was performing a judicial function and accordingly the appointment of Panel Members also involved a judicial function. It was submitted that what Gillard and Menhennit JJ said in the Glenister case, supra, supported that conclusion.

82 In addition, Mr Uren referred to and relied upon what Gleeson CJ said in Fingleton v The Queen,[35] where his Honour said:

[58]

83 It was submitted that the same principles applied to a statutory office holder, such as Dr Nisselle, when exercising the functions of establishing the body which was to perform the judicial task, namely, the Medical Panel.

84 I do not accept that what Gleeson CJ said applies to the actions of Dr Nisselle when he appoints a Medical Panel. What his Honour said was in the context of a section of the Queensland Magistrates' Act dealing with the functions of the Chief Magistrate. Prior to the quoted words above, Gleeson CJ referred to the section which covered a range of matters relevant to the orderly and expeditious exercise of the jurisdiction of the Magistrates' Courts. As his Honour pointed out, the allocation of magistrates was not merely a matter of internal administration, but affected litigants and the public. His Honour then stated the words quoted above. Taken in context, the words do not provide an answer to the question in this proceeding as to whether Dr Nisselle's exercise of his statutory power to appoint a Medical Panel was administrative action or a judicial function.

85 The many cases that have discussed differences between administrative, ministerial and judicial functions do not provide a ready answer to the issue in this proceeding. Indeed, the authorities relating to the common law prerogative writ jurisdiction of this Court and whether a writ of certiorari should issue, show that sometimes a person who is a judicial officer and has performed functions which are closely associated with the judicial function, is performing ministerial functions. For example, an order committing a person for trial at a committal by Justices was held not to be a judicial act but a ministerial act. See Cox v Millidge.[36] Further, the taking of the recognisance of bail where bail has already been allowed is not a judicial act within the meaning of the Judiciary Act 1903, s.68(3).[37] In Donohoe v Chew Ying,[38] the High Court held that the issue of a summons upon an information for an offence punishable on summary conviction was a matter of procedure, and that a Justice of the Peace in issuing such a summons was not exercising a judicial function.

86 I respectfully agree with Lush J that the early authorities do not provide much guidance in considering the question of whether or not the Ombudsman has jurisdiction. It is impossible to lay down a satisfactory definition of "administrative action". The authorities do provide a guideline, namely, that "administrative action" is conduct other than the performance of a legislative or judicial function. However, this is merely a starting point and does not provide the solution. It is well recognised that often it is very difficult to draw the distinction between administrative functions on the one hand, and legislative or judicial functions on the other. See Hamblin v Duffy,[39] where Lockhart J observed that it was difficult to define the expressions legislative, judicial, ministerial or administrative decisions. His Honour pointed out that the difficulty is "compounded by the fact that a particular category of decision tends to overlap or emerge into another."[40]

87 As Lush J noted in Booth v Dillon (No. 1),[41] the starting point must be the subject matter to be investigated. The answer in the present proceeding is the conduct of Dr Nisselle in appointing a Medical Panel. Having determined the subject matter of the complaint, the question is, did that conduct relate "to a matter of administration"? The fact that the conduct may occur in circumstances where a judicial function is being performed by another does not mean that the conduct is not administrative action. In seeking to determine the answer, it is appropriate to draw a distinction between judicial conduct on the one hand, and administrative conduct on the other. As the cases heard in 1975 and 1976 demonstrate, administrative action can occur although it is closely related to some judicial function. That observation is supported by reference to S.13(3)(a). Parliament recognised and contemplated that judicial officers would perform administrative action. It is clear that once the Medical Panel was established and commenced to exercise its statutory powers, it performed an important function in the judicial process and its activities were judicial. However, in my opinion, the performance by Dr Nisselle of his statutory duty to appoint the particular Medical Panel was a separate and discrete function, and was not judicial, but administrative in nature. The complaints concern that conduct. Dr. Nisselle's conduct in appointing a Medical Panel, as disclosed by the evidence, and when considered in the context of his statutory powers and taking into account the authorities in this Court, leads to the conclusion that he was exercising an administrative function at the relevant time. That is, action relating to a matter of administration. The matter of administration was the appointment of the Medical Panel. The fact that once the Panel was established and commenced to perform its functions, it was involved in a quasi-judicial function, does not alter the nature of what Dr. Nisselle did. His conduct concerned administrative action and not judicial action. In my opinion, the Ombudsman had jurisdiction under s.13(1) of the Act to investigate the action taken by Dr Nisselle when he appointed a Medical Panel.

88 However, having reached that conclusion, that is not the end of this proceeding. Although an Ombudsman may have jurisdiction under s.13(1), he may be precluded from enquiring into or investigating the administrative action by reason of s.13(3). It is the contention of Dr Nisselle that the Ombudsman is precluded by s.13(3)(a).

Ombudsman's Lack of Authority under s.13(3)(a)

89 I have set out s.13(3)(a) above.

90 Literally, the subsection does not apply because Dr Nisselle is not a court of law, a Judge or a magistrate. However, Dr Nisselle prayed in aid s.65(10) of the AC Act. This subsection was inserted in 1996. I have set it out above.

91 It was argued on behalf of Dr Nisselle that his action in appointing the Panel entitled him to the same protection and immunity that a Judge of the Supreme Court has in the performance of his duties as a Judge, and accordingly that s.13(3)(a) prevented the Ombudsman from enquiring into or investigating his administrative action in appointing the Panel. It was submitted that for the purposes of s.13(3)(a), Dr Nisselle was a Judge because by reason of s.65(10) of the AC Act, he was entitled to the same protection and immunity as a Judge.

92 The first question for consideration and determination is, what is the nature of the protection and immunity that a Judge has in the performance of his duties as a Judge? In answering that question, it is necessary to refer to s.63(6) of the AC Act. It was enacted at the same time as s.65(10). It provides -

[61]

"Most discussion of judicial immunity concerns the possibility of civil liability, including liability for damages, at the suit of an aggrieved litigant. The general principle is as stated by Lord Denning MR in Sirros v Moore [1975] QB 118 at 132:

'Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.'

An allegation of judicial conduct by a dissatisfied litigant often, perhaps even typically, will be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority. In In Re McC (a minor), Lord Bridge of Harwich said:

'It is, of course, clear that the holder of any judicial office who acts in bad faith doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say:

"That is a perverse verdict", and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But, as Lord Esher MR said in Anderson v Gorrie;"

'The question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie.'

This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is a right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O'Connor J speaking for the Supreme Court of the United States, said in Forrester v White, that Court on a number of occasions has 'emphasised that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have'. She said that 'if judges were personally liable for erroneous decisions, the resulting avalanche of suits ... would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits'."

[62]

95 His Honour, having observed that Judges were not unaccountable because their work was in public and that a Judge could be removed for misconduct upon the address of Parliament, went on to observe that the same considerations lay behind immunity from criminal responsibility. His Honour pointed out that at common law, judicial officers enjoy no immunity or protection from criminal responsibility for their extra-judicial conduct.

96 In my opinion, s.65(10) provides that protection and immunity to Dr Nisselle when he performs his statutory functions as the Convenor of Medical Panels. He is not liable to a suit for damages for anything he does or does not do in performing his duty as the Convenor.

97 In the course of argument, the question arose as to whether Dr Nisselle or the Medical Panel could be subjected to judicial review pursuant to the Administrative Law Act or the common law jurisdiction of this Court. It has been accepted in a number of cases that the Medical Panel's conduct is subject to review. The answer to that query was stated by Mr Uren, namely, that a Supreme Court Judge is not subject to that common law jurisdiction or the jurisdiction under the Administrative Law Act, and accordingly, it is not a question of the common law providing some protection or immunity from suit. That observation underlines the purpose of s.65(10), which is to protect the Convenor from any civil liability arising out of the performance of his functions.

98 It therefore follows that Dr Nisselle does have the same protection and immunity that a Judge of this Court has in the performance of his or her duties as a Judge.

99 But the question remains, does that protection and immunity given to Dr Nisselle as the Convenor preclude the Ombudsman under s.13(3)(a) from enquiring into the administrative action?

100 Mr Robins, on behalf of the Ombudsman, submitted that s.65(10) of the AC Act should be interpreted to cover common law judicial immunity from suit and protection from legal claims, but that it does not extend to any protection accorded a Judge by statute. However, it is well recognised that a Judge or magistrate may be accorded statutory protection. Indeed, in Fingleton v The Queen, that was held to be the situation in Queensland. Further, Section 14 of the Magistrates' Court Act 1989 gives protection and immunity to a magistrate. In my opinion, there is no warrant for reading down s.65(10) to mean the level of protection accorded at common law. In my opinion, any protection that is given to a Judge of the Supreme Court, whether it be at common law or by statute, is the protection and immunity to be accorded to the Convenor of the Medical Panels. As the administrative action of a Judge cannot be investigated or enquired into, it must follow that the Convenor's administrative action cannot be enquired into or investigated. The statutory protection of immunity given to a Judge of this Court protects the Convenor.

101 In my opinion, s.13(3)(a) precludes the Ombudsman from enquiring into or investigating the administrative action of Dr Nisselle as the Convenor of the Medical Panels because he enjoys the same immunity as a Judge or a magistrate, and since it is not open to investigate the administrative action taken by a Judge, it follows that Dr Nisselle enjoys the same protection by reason of s.65(10) of the of the AC Act.

102 In my opinion, the Ombudsman is precluded from enquiring into or investigating the complaints made concerning the appointment of the Medical Panels by Dr Nisselle.

Conclusion

103 The Ombudsman had jurisdiction under s.13(1) of the Ombudsman Act 1973 to enquire into or investigate the actions taken by Dr Nisselle in appointing a Medical Panel because the conduct was administrative action within the meaning of that Act. However, by reason of s.13(3)(a), the Ombudsman was not authorised to enquire into or investigate the administrative action because Dr Nisselle enjoyed the same protection and immunity as a Judge of the Supreme Court by reason of s.65(10) of the AC Act. Section 13(3)(a) is a statutory protection given to a Judge and Dr Nisselle is entitled to the same protection.

104 Before I state the proposed order, I wish to make a few observations concerning the practice and procedure followed by Dr Nisselle as Convenor of the Medical Panels. When summarising the complaints, I made observations concerning his approach to the appointment of a Medical Panel. I appreciate that when appointing a Panel there may be constraints because of finances and the availability of suitable persons, but I do draw attention to the important principle that justice must not only be done but be seen to be done. The outcome of a Medical Panel's function will invariably result in a party to a dispute failing. It is important that a losing party to any dispute goes away from the proceeding satisfied that he or she has had a fair hearing. In my opinion, thought and consideration must be given to the establishment of guidelines with respect to procedures under s.65 of the AC Act. Section 63A enables the Convenor to constitute a Medical Panel to provide a report in any matter referred to the Convenor by the Minister. I think it would be wise and prudent to lay down guidelines and, if necessary, provide the necessary resources and facilities to ensure that there is no suggestion of perceived bias or conflict of interest.

105 Subject to submissions by counsel, I propose to make the following order under s.27 of the Ombudsman Act 1973:

Plaintiff v Defendant

At a glance

Court

Decision date

Before

Source

Judgment (65 paragraphs)

Parties

Legislation Cited (48)

Cases Cited (5)