R v Thomas; Ex parte Brodsky

High Court of Australia|1963-07-01|Before: Windeyer JJ

High Court of Australia Kitto, Menzies and Windeyer JJ. R v Thomas; Ex parte Brodsky [1963] HCA 25

This is the return of an order nisi for a writ of prohibition. The respondents are the members of a Medical Services Committee of Inquiry established for the State of New South Wales under s. 110 of the National Health Act 1953-1962 Cth and the prosecutor is a medical practitioner with whom, under s. 33 of the Act, the Director-General of Health of the Commonwealth, on behalf of the Commonwealth, has entered into an agreement in accordance with the common form of Pensioner Medical Service Agreement.

The Committee has authority under s. 111 to inquire into and report to the Minister or the Director-General on any matter referred to the Committee by the Minister or the Director-General in respect of or arising out of the services or conduct of medical practitioners in connexion with the provision in New South Wales of medical services under Pt IV of the Act, that part containing the provisions of the Act, including s. 33 with respect to what the Act calls The Pensioner Medical Service.

Where a matter referred to a Committee concerns the conduct of a medical practitioner, the chairman of the Committee is required by sub-s. (1) of s. 125 to cause notice in writing of the matter so referred and of the time and place at which the Committee intends to hold an inquiry into the matter to be given to that medical practitioner at least ten days before the date of the inquiry. Sub-section (5) of the same section makes provision for the case where a medical practitioner to whom notice has been given fails to attend. Where he does attend, sub-s. (4) requires the Committee to afford him an opportunity of examining witnesses, giving evidence, and calling witnesses on his behalf and of addressing the Committee.

The Chairman of the Medical Services Committee of Inquiry, of which the respondents are the members, has given the prosecutor a notice in writing that there has been referred to the Committee what the notice describes as "the following matter", namely "The provision in the said State under Pt IV of the said Act by Dr. Isadore Irvine Brodsky of medical services for the pensioners and dependants of pensioners whose names appear on Appendix "A" attached during the periods indicated opposite such names and the claims made on the Commonwealth in respect of such persons for the periods indicated, having regard to the terms and conditions of the Agreement entered into by the said Director-General with the said Dr. Isadore Irvine Brodsky for and in respect of the rendering of medical services for pensioners and their dependants."

The notice goes on to fix a day, time and place for the holding of the inquiry, draws the prosecutor's attention to the functions of the Committee and the provisions of s. 125 and annexes an appendix of one page containing the names of six patients and the first and last months of a period in respect of each patient, and other pages containing detailed particulars of medical services in respect of each of the six patients as being services for which the prosecutor has made claims on the Commonwealth for payments under the Pensioner Medical Service.

It is shown by evidence in the case, though not by the notice, that the reference to the Committee was made by the Director-General.

The prosecutor's case is that the respondent members of the Committee are officers of the Commonwealth within the meaning of s. 75 (v.) of the Constitution, that their function as the Committee is of a quasi-judicial character which makes them amenable to the prerogative writ of prohibition for excess of their statutory powers, and that the inquiry upon which, according to the notice, they propose to enter is beyond their powers for the reason that the subject to be inquired into is not a "matter" in the sense which the word has in ss. 111 and 125, and therefore could not be validly referred to the Committee or inquired into by it.

Whether the respondents are officers of the Commonwealth and as a committee are amenable to prohibition we do not need to decide. The prosecutor's case breaks down at the point at which it asserts that the subject of the proposed inquiry is not a "matter" in the relevant sense of the word. We are invited to give the word the meaning which it has in ss. 75 to 78 of the Constitution under which the test of a "matter" is a claim of right: In re the Judiciary and Navigation Acts [1] , Farbenfabriken Bayer Aktiengesellschaft v. Bayer Pharma Pty. Ltd. [2] ; so that "matter" means a subject-matter for determination in a legal proceeding. But the reasons which have led to the conclusion that where there is no claim of right there is no "matter" of the kind to which the constitutional provisions concerning judicial power must be understood as referring have no application under ss. 111 and 125 of the National Health Act. We can see no ground in the language, the context or the subject-matter of those sections for giving to the word as there used any precision of meaning at all. Indeed it seems chosen for the sake of that vagueness which reserves all definition to be the function of super-added descriptive words. It is often used in this manner as merely equivalent to "things" or "something", especially, as the Oxford English Dictionary observes, with qualifying words, "things or something of a specified kind, involving or related to a specified thing". Accordingly, in our opinion, the expression "any matter" in ss. 111 and 125, has the same width of meaning as it has, for example, in s. 1A of the Royal Commissions Act 1902-1933 Cth, where it is used as a comprehensive term to refer to any subject of inquiry (the expression used by the Privy Council in Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. Ltd. [3] that is to say, any subject-matter that may be chosen for inquiry (see the language of Fullagar J. in Lockwood v. The Commonwealth [1] ).

(1921) 29 C.L.R. 257. 2. (1959) 101 C.L.R. 652, at p. 658. 3. [1914] A.C. 237, at p. 251; (1913) 17 C.L.R. 644, at p. 650. 4. (1954) 90 C.L.R. 177, at p. 182.

The terms in which, as appears from the notice given to the prosecutor, the reference has been made upon which the respondents propose to act are perhaps not the happiest that could have been chosen, but they make quite clear, in our opinion, what the subject of inquiry is to be. The reference specifies with particularity, by means of the appendix, six persons as being pensioners and dependants of pensioners, and it likewise specifies periods of time and precise dates within those periods. It specifies "medical services" as services which the prosecutor has asserted that he has provided for the six persons on the specified dates, and claims which he has made upon the Commonwealth to be paid for having provided those services. Then it calls for inquiry and report upon the provision of those services and upon those claims, having regard to the provisions of the agreement between the respondent and the Director-General on behalf of the Commonwealth. Plainly the question to be inquired into is: concerning the services and claims referred to, what is it proper or desirable to report to those who, on the part of the Government, are concerned with the administration of the Act and the due carrying out of Dr. Brodsky's agreement with the Director-General? That that is a "matter in respect of the services or conduct" of the prosecutor in connexion with the provision of medical services under Pt IV of the Act, we think it is impossible to doubt.

It may be that in order that the prosecutor may have the opportunities to which s. 125 (4) entitles him, that is to say, real, reasonably full and not illusory opportunities, particulars may need to be given to him from time to time and adjournments allowed. But all that lies in the future. The only question at the moment is whether there has been a valid reference of a matter to the Committee, and in our opinion there has.

A question was raised by Mr. Kenny, and he asked for an amendment of the order nisi to enable it to be debated, as to whether, assuming the validity of the reference, the Committee proposes to do more than the reference justifies. Whether such a question really arises is not at all clear and we do not deal with it in these proceedings.

No ground for prohibition has been shown, and the order nisi should therefore be discharged.

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