Plaintiff v Defendant

Barbosa v Di Meghis [1999] NSWCA 307

Johnson v Johnson [2000] HCA 48; [2000] 201 CLR 488

R v Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248

Vakauta v Kelly [1989] HCA 44; (1991) 167 CLR 568

1 I have before me a summons dated 23 April 2008 which was referred to the Practice Court by Master Daly on 30 April 2008. The plaintiff, Dr Cynthia Weinstein, is currently the subject of a formal hearing by a panel appointed by the Medical Practitioners Board of Victoria under the Medical Practice Act 1994 into allegations of professional misconduct made against her under the Act. The defendant to the summons is the Medical Practitioners Board of Victoria.

2 In substance, the plaintiff alleges that the conduct of the panel in carrying out a Google search of a surgeon, Dr Fernandes, whose qualifications and credentials might be an issue in the hearing, disqualifies the panel from further hearing the matter on the basis of ostensible or apprehended bias by the panel.

3 Under the summons, application is made by the plaintiff for judgment or for an order in respect of the relief or remedy sought in the originating motion. The originating motion dated 23 April 2008 provides as follows:

(1) The defendant is a body corporate pursuant to s 65 of the Medical Practice Act 1994.

(2) At all relevant times the plaintiff was a registered medical practitioner within the meaning of s 3 of the Act.

(3) On or about 24 January 2008, the defendant gave the plaintiff notice of a formal hearing pursuant to s 48 of the Act with respect to certain allegations of unprofessional conduct made against the plaintiff.

(4) Further, on or about 10 April 2008, the defendant gave the plaintiff an amended notice of a formal hearing with respect to the allegations.

(5) On 14 April 2008, a panel appointed by the defendant pursuant to s 46 of the Act commenced a formal hearing into the allegations.

(6) Pursuant to s 49 of the Act, at a formal hearing the panel must hear and determine the matter before it.

(7) Further, pursuant to s 52 of the Act, at a formal hearing -

(a) the procedure of a panel is, subject to Part 3 of the Act, in its discretion;

(b) the proceedings must be conducted with as little formality and technicality as the requirements of this Act and the proper consideration of the matter permit;

(c) the panel is not bound by rules of evidence but may inform itself in any way it thinks fit; and

(d) the panel is bound by the rules of natural justice.

(8) In breach of its obligations pursuant to s 52 of the Act and at common law, on or about 18 April 2008, via the internet and without notice to the plaintiff, the panel conducted private searches and investigations into matters relevant to the allegations.

(9) The private searches and investigations referred to in paragraph (8) -

(a) were conducted by the panel in breach of its obligations under s 52 of the Act and at common law;

(b) denied the plaintiff natural justice or procedural fairness; and

4 The plaintiff seeks the following relief or remedy:

(1) Orders dispensing with requirements under the rules and permitting the plaintiff to commence this proceeding by originating motion;

(2) An order in the nature of prohibition preventing the defendant from continuing with the formal hearing;

(3) An injunction restraining the defendant from continuing with the formal hearing; and

(4) A declaration that the defendant is disqualified from continuing with the formal hearing.

6 The plaintiff relies on an affidavit sworn 23 April 2008 by Robert John Thomas Galbally the solicitor for Dr Weinstein in support of her application. The affidavit deposes to the formal matters referred to in the originating motion.

7 Mr Galbally deposes that one of the particulars of alleged unprofessional conduct in the amended notice of formal hearing is particular "(q)", under the heading "Roll-CIT roller", which alleges that, "In the period from 2004 until September 2005, [the plaintiff] breached infection control protocols and standards by re-using an instrument known as the Roll-CIT roller on different patients"; and particulars are provided.

8 He further deposes that, according to the evidence presented to the panel, the Roll-CIT roller is an instrument consisting of a handle and a rolling head. He says the head of the instrument contains needles. He deposes that in a procedure called collagenesis, the Roll-CIT roller is rolled over the skin of a patient so that the needles partially penetrate the skin, producing some bleeding. The theory behind the procedure is that the body will produce collagen as a result, thus improving the appearance and thickness of the affected skin.

9 He deposes that the evidence also reveals that the Roll-CIT roller is an instrument manufactured by a company, Environ. He says an apparent principal of that company is one Des Fernandes. He says that evidence gathered by officers of the defendant during the investigation of the plaintiff's conduct included material apparently emanating from Des Fernandes indicating that the Roll-CIT Roller was suitable for sterilisation and re-use (albeit on the same patient).

10 Mr Galbally deposes that evidence that the Roll-CIT roller may be sterilised and re-used is important to the plaintiff's answer to the allegations made against her.

11 He says on 18 April 2008, a medical practitioner and former employee of the plaintiff, Rhett Bosnich, gave evidence. He says that under cross-examination by senior counsel for the plaintiff, he was asked whether he knew of the qualifications of Des Fernandes. He gave evidence that he believed him to be a plastic surgeon.

12 Mr Galbally deposes that in further questioning of the witness, and in apparent contradiction or qualification of his evidence, the panel revealed that it had Googled Des Fernandes. He says this was a reference to the fact that the panel had privately carried out an internet search relating to Des Fernandes.

13 He says that counsel for the plaintiff sought that the panel disqualify itself for apprehended bias and the panel refused that application.

14 Mr Rolf exhibited the relevant passages of the transcript. At p 397, Mr Priest QC senior counsel for Dr Weinstein asked Mr Bosnich the following questions:

A: He's a South African plastic surgeon who developed the concept of the smooth suture lift or thread lift and taught that procedure to Dr Bruce Fox, who introduced it to Australia.

Q: You wouldn't know this, Doctor, but we've seen some material in amongst these papers from Dr Des Fernandes in relation to the Roll-CITs, but you don't know of his connection with respect to the Roll-CITs?

15 After re-examination by Ms McLeod SC, senior counsel assisting the panel, Ms Fitzgerald, a member of the panel, asked the following questions of Mr Bosnich:

Q: Now, I think you said that you didn't know much about Dr Fernandes, but you understood he was a plastic surgeon?

Q: Well, during the last interval we just checked on Google, so that's a great source I must say, but it says that he went to England, and this is his website which hasn't been updated since 2005, said he went to England to do plastic surgery but in fact did cardiothoracic surgery. So he practices as a plastic surgeon, it sounds like though he hasn't actually - I can't add any further than that?

Q: You don't know anything, yes? So that was the basis of your understanding I suppose?

A: Look, my understand was that he was a plastic surgeon.

16 At this stage, Ms McLeod intervened and said it would be useful for the sake of fairness for Dr Weinstein's representatives to know what it is that was Googled and Ms Fitzgerald said "his name".

17 Brendan John Murray solicitor for the defendant swore an affidavit on 30 April 2008 and exhibited the print out of the single web page accessed . The page was headed "Dr Des Fernandes, Plastic and Reconstructive Surgeon". There followed a small entry headed "about me." The entry stated:

I qualified M B; B Ch at the Witwatersrand University in 1966, worked in Kwazul-Natal and went to the UK to specialise as a plastic surgeon but ended up training at the London Heart Hospitals as a cardio-thoracic surgeon. I became a fellow of the Edinburgh College of Surgeons in 1973 and came to Cape Town for a year to work with Prof. Christian Bernard but ended up staying here and specialising in plastic surgery.

In 1973 I succeeded Dr David Davies as the head of the University of Cape Town's Cleft Lip and Palate Unit at Red Cross War Memorial Hospital. I held this position for 21 years and also joined David Davies in his Cosmetic private practice.

He then listed two publications: Esthetic Surgery of the Face and Aesthetic Surgery of the Facial Mosaic edited by Panfilov.

18 The page accessed was printed out and given to the parties at the hearing before the panel.

19 Mr Priest who appeared for Dr Weinstein indicated, however, that he and his junior were troubled by what had happened and asked that the panel stand the matter down while they obtained instructions. As it was, the matter was not stood down but Dr Bosnich's evidence was finished.

20 Before Dr Bosnich completed his evidence, Mr Priest said the panel should not be making inquiries behind the scenes without apprising them [Dr Weinstein and her counsel] of what they were intending to do and giving them the results, chapter and verse.

21 Before lunch and after Dr Bosnich withdrew, Mr Priest said that he considered that what the panel had done was a very serious breach of the principles of natural justice and procedural fairness. He said that he would be taking instructions from Dr Weinstein together with his junior and Mr Galbally as to whether or not Dr Weinstein should be asking this panel to disqualify itself on the basis of ostensible bias.

22 After lunch and before Mr Priest indicated whether or not he would be making an application asking the panel to disqualify itself, the Chairman of the panel said that the panel noted Mr Priest's concerns and had prepared an explanation which they would like to give. Mr Priest said that he would hear what they had to say and that after the explanation he may need to seek further instructions

The panel's Google search which was the subject of your concern only represented a reference into the qualifications and credentials of Des Fernandes which were uncertain to the panel up to that point. The search was limited to the web page, the single web page of which you now have a copy. It was noted and stated that Dr Fernandes' original training was in cardiothoracic surgery but it was further noted and stated on the web page that the website confirmed his latest specialisation in plastic surgery which reassured the panel. The information was offered openly and not withheld from counsel and given this the panel does not consider that Dr Weinstein's hearing has been subject to procedural unfairness or her right to natural justice otherwise compromised.

24 Immediately, Mr Priest responded that Dr Weinstein had been denied procedural fairness by not letting him make a submission about whether the panel should disqualify itself before the panel made a ruling. He said:

You have drawn the conclusion that there is no apprehended bias and no reason for the tribunal to recuse itself without hearing any submissions from me on the subject.

25 Ms McLeod, senior counsel assisting the panel, said they had not ruled but that they just said they did not consider there was procedural fairness or a denial of natural justice.

26 Mr Priest responded: "Well, perhaps I've misunderstood. Is that the position, Mr Chairman, may I ask?" The Chairman responded: "The statement stands and we're happy to hear your submissions."

27 Mr Priest then made his submissions. He submitted that the conduct of the panel in making inquiries on the internet in the circumstance that it did showed the panel had a fundamental misunderstanding of what its role was in the proceedings. Mr Priest submitted that there were two principles of natural justice: that first a person was entitled to a fair hearing, and secondly by an unbiased tribunal. He said that the panel had shown that it had misapprehended what its power and proper functions were pursuant to s 52 of the Act by making private inquiries which it was not entitled to do.

28 He said that the circumstances in which this has occurred raised a real question of apprehended or ostensible bias. He said they did not allege, of course, actual bias, but submitted that the circumstances raised a true spectre of ostensible bias. He said:

That is, the objective observer seized of all the facts would have an apprehension that the tribunal would not bring an unbiased mind to the resolution of the matter before it.[1]

Ask the objective observer what the objective observer would think the purpose behind the private inquiry about Mr Fernandes was.

(q) In the period from 2004 until September 2005, you breached infection control protocols and standards by re-using an instrument known as the Roll-CIT roller on different patients.

(i) From at least 2004 until September 2005, or for a period of time within that timeframe, you performed a procedure known as collagenesis on multiple patients using an instrument known as the Roll-CIT roller.

(ii) During this period you performed collagenesis on patients using Roll-CIT roller instruments that you had already used on previous patients.

(iii) The Roll-CIT rollers used by you in collagenesis were supplied by Environ.

(iv) Roll-CIT rollers are supplied by Environ on the basis that the rollers are for use on one person only.[2]

31 Evidence currently before the panel establishes that Dr Fernandes represents Environ, which produces the Roll-CIT Roller.

32 The evidence also includes communications with Dr Fernandes by officers of the Medical Practitioners Board of Victoria.[3] In particular, the evidence includes an email of 23 August 2005 from Dr Fernandes to Dr Constaninou, an email of 30 August 2006 from Dr Fernandes to Dr McIntyre and a letter of 17 November 2003 from Dr Fernandes to the Board. In the email of 23 August 2005 Dr Fernandes says:

The detachable handle is suitable for standard sterilization procedures, but the roller head with the embedded needles is not suitable for autoclaving. It can be sterilized by gas or by soaking as many instruments are, however, I do not recommend that the instrument is used on another person, so while it may be re-sterilised it should only be used on one person . It is actually printed on the packaging that the product is designed to be used on one person...

I am quite convinced that the roller is safe for re-use provided that it is not autoclaved, and of course that it is used always only on one individual.

33 In his email of 30 August 2006 to Dr McIntyre, Dr Fernandes confirms he will have sent to Dr McIntyre a scan of the outer covering of the box and the information brochure that comes with the instrument in response to Dr McIntyre's request for the out packaging of the Roll-Cit roller. The scan of the packaging was in evidence before the panel and stated: "The product is designed to be used by one person only." The letter of 17 November 2003 to the Board confirmed that Dr Fernandes developed the instrument that is now sold as the Environ Roll-CIT.

34 Transcript of the hearing before the panel referred to by counsel for Dr Weinstein indicates that Dr Weinstein complained about the allegation in particular (q) in that no particulars have been given of the control protocols and standards referred to in the allegation.[4]

35 It was submitted on behalf of Dr Weinstein that one of the main pieces of evidence relied upon in support of (q) is the opinion expressed by Dr Fernandes in the communications with the investigators for the Board referred to above. I was informed that counsel assisting the panel does not intend to call Dr Fernandes to give evidence.

36 It is apparent, therefore, that the professional standing and expertise of Dr Fernandes is of considerable importance to the case against Dr Weinstein. The panel admit that they were uncertain as to the qualifications and credentials of Dr Fernandes, that their purpose in carrying out the Google search was to ascertain his qualifications and credentials and that the website confirmed his specialisation in plastic surgery "which reassured the panel".[5]

37 Did the panel act improperly in making its own investigation of Dr Fernandes' qualifications and credentials? It is not disputed that the panel found its investigations to be a relevant matter to the matters in issue before them as their inquiries reassured them.

38 Dr Weinstein submits that the function of the panel was to hear and determine the matter. She submits its function was not to carry out investigations

39 Insofar as the Act is relevant to the matter concerning Dr Weinstein, under s 22 of the Act a person may notify the Board about any matter relating to a registered medical practitioner if the person believes that the medical practitioner may have engaged in unprofessional conduct.

40 Under s 25 subject to certain exceptions, the Board must investigate the notification under s 22 and may appoint a certain category of people to conduct a preliminary investigation into the matter.

41 Under s 38K the person appointed to investigate the matter may recommend that a formal hearing be held into the matter and the Board must determine whether or not to act on the recommendation.

42 Under s 46, if the Board determines to hold a formal hearing into the matter it must appoint a panel to hold the hearing and give a formal notice to the practitioner. The panel must include one lawyer and one registered medical practitioner: s 47.

43 Under s 48, the formal notice required by s 46 must state the nature of the hearing and the allegations made against the practitioner, give the time and place of the hearing and state that there is a right to make submissions and to be represented , that the hearing is open to the public, list the possible findings the panel can make and state that there is a right to apply for review of the panel's findings.

(a) the hearing panel must hear and determine the matter before it; and

(b) the practitioner ...who is the subject of the hearing is entitled to be present, to make submissions and to be represented; and

(c) if the hearing arises out of a notification made under section 22, the identity of the notifier is not to be published or broadcast and the notifier....

(d) the proceedings are to be open to the public unless ....

(a) subject to this Part, the procedure of a panel is in its discretion; and

(b) the proceedings must be conducted with as little formality and technicality as the requirements of this Act and the proper consideration of the matter permit; and

(c) the panel is not bound by the rules of evidence but may inform itself in any way it thinks fit; and

(d) a panel is bound by the rules of natural justice.

46 The Board has retained counsel to assist the panel in the conduct of the hearing.

47 An investigation is not something that a panel would normally do. Investigations are normally done by individuals. Members of the panel could bring to bear their expertise, but that is not relevant to the issues here. The panel here must act as a panel. As the Act makes clear, the panel is to hear submissions, take evidence and make findings.

48 Section 52 states that the panel is not bound by the rules of evidence but may inform itself in any way it thinks fit, but the panel was bound by the rules of natural justice. The notice of formal hearing under s 46 is to state the nature of the hearing and the allegations made against the practitioner, giving the time and place of the hearing and state: there is a right to make submissions and to be represented; the hearing is open to the public; the possible findings the panel can make, and there is a right to apply for a review of the panel's findings.

49 The defendant submits that the panel's entitlement to inform itself "in any way it thinks fit", includes making private inquiries so long as the results of those inquiries are made available to the practitioner and that accordingly there had been no breach of the Act. I disagree. In my opinion, the Act is clear that the function of the panel is to hear and determine the matter before it. The function of the panel is not to make inquiries.

50 In my opinion, the tribunal failed to observe the proper procedures in hearing and determining the matter before it by conducting its own inquiries as to the professional qualifications and credentials of Dr Fernandes, upon whom counsel assisting the inquiry was placing reliance in establishing the professional misconduct alleged in item (q) under heading "Roll-CIT roller".

51 In Johnson v Johnson[6], the High Court (Gleason CJ, Gaudron, McHugh, Gummow, and Hayne JJ presiding) held:

It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which in the present case was said to take the form of pre-judgment) is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

52 In R v Watson; ex parte Armstrong[7], the High Court held that Watson J of the Family Court had displayed ostensible bias. The High Court said the relevant question was:

The question is whether it has been established that it might reasonably be suspected by fair-minded persons that the judge might not resolve the questions before him with a fair and unprejudiced mind.

53 During submissions, Watson J had said in substance that he would not accept evidence of either party of the trial without corroboration. The wife had applied for a writ of prohibition against the judge hearing the proceedings further.

54 It was submitted that there was no bias because the judge had formed an equal distrust of both parties. The majority (Barwick CJ, Gibbs, Stephen and Mason JJ) rejected that argument and said as follows:

The formation of a preconceived opinion that neither party is worthy of belief amounts to bias in the sense in which that word is used in a number of authorities already cited. To form such an opinion is to predetermine one of the issues in the case, and may operate unfairly against one party, even though both are discredited. Prejudice against the credit of both parties will not necessarily damage both parties equally. It will prove more damaging to that party who wishes to establish a fact by means of his or her own unsupported evidence. A party who believes on reasonable grounds, that the judge has decided, in advance, to disbelieve her evidence cannot have confidence in the result of the proceedings, even if the judge decided to reject the evidence of her adversary as well.[8]

55 So, too, in this case, it might be said that the tribunal had prejudged important issues by its own investigation of and finding on an issue in the case where it had failed to give Dr Weinstein the opportunity to properly contest the findings that the panel drew from its own investigations.

56 As mentioned above, Dr Weinstein alleges the private searches and investigations were conducted by the panel in breach of its obligations under s 52 of the Act and denied the plaintiff natural justice and procedural fairness. Dr Weinstein submits that natural justice requires a fair hearing by an unbiased tribunal.

57 Dr Weinstein also relied on the fact that the panel made a ruling on the bias application before hearing from counsel for Dr Weinstein. That was improper. It does tend to indicate that the panel does not understand its duties and functions. I agree that it adds weight to an argument that a reasonable objective observer might reasonably apprehend that the panel might not bring an impartial mind to the resolution of a matter the panel is required to decide.

58 Mr Priest submitted that the Google search was done for two possible purposes: either to support or impugn Dr Fernandes' authority.

59 The panel stated that the purpose of the investigation was to ascertain the qualifications and credentials of which they were uncertain at that time and their investigations "reassured the panel."

60 I accept that the result of the inquiry may have an influence on the ultimate decision.

61 I consider the central issue at stake in this case is whether a fair minded lay observer might reasonably apprehend that the panel might not bring an impartial and unprejudiced mind to the resolution of the matter before it and, in particular, allegation (q) by reason of the fact that the panel made its own inquiry as to the qualifications and credentials of Dr Fernandes and as a result thereof expressed the view that their investigations had reassured the panel on those matters.

62 I believe it is relevant in this case that the panel expressed a view about the evidence on Dr Fernandes' qualifications and credentials before hearing submissions from counsel for Dr Weinstein.

63 On the other hand, counsel for Dr Weinstein are fully aware of the matter that the panel have taken into account and the reassurance they drew from it and are able to meet and deal with the matter just as if the information on the website had been tendered in formal hearing.

64 In my opinion, the reassurance expressed in the panel's statement falls into the category referred to in, for example, Vakauta v Kelly[9] where the High Court acknowledged the importance of the entertaining and exchange of views between Bench and Bar and pointed out its usefulness in helping identify the real issues and real problems of the particular case. See also the comments of the High Court in R v Watson; ex parte Armstrong[10] and of Mason P in the New South Wales Court of Appeal Barbosa v Di Meghis.[11] Such an exchange may indicate a preliminary view by the panel about a matter that they might ultimately have to make a finding on. Apprehended bias on the basis of pre-judgment, however, must by its nature refer to an apprehension about the panel not bringing an impartial and unprejudiced mind to the ultimate findings of the panel.

65 I accept that independent investigations by the panel which have led them to express a view about a relevant issue could be of such a nature that it is arguable their conduct might lead a fair minded observer to reasonably apprehend that the tribunal might not bring an impartial and unprejudiced mind on the issues they have investigated.

66 In this particular case, however, for the reasons expressed and after much reflection, I am not satisfied a fair minded lay observer might reasonably apprehend that the panel might not bring an impartial and unprejudiced mind to the resolution of the matters before them.

67 Accordingly, I dismiss the application. The defendant did not seek costs and I make no order as to costs.

[6] [2000] HCA 48; [2000] 201 CLR 488.

[7] [1976] HCA 39; (1976) 136 CLR 248.

[9] [1989] HCA 44; (1991) 167 CLR 568 at 571.

[10] [1976] HCA 39; (1976) 136 CLR 248 at 264.

[11] [1999] NSWCA 307 per Mason P [10]-[13]