MATTER : Application for Writs of Certiorari and Prohibition against the Medical Board of Western Australia

Administrative law - Application for orders nisi for certiorari and prohibition - Grounds of breaches of rules of natural justice, including reasonable apprehension of bias - Test for making order nisi - Whether appeal instituted under Medical Act, s 13(8) - Competence of such appeal - Tests for grant of stay or proceedings

Accident Compensation Act 1985

Administrative Decisions (Judicial Review) Act 1977 (Cwth)

Consumer Affairs Act 1971

Medical Act 1894 (WA)

Medical Rules 1987

Vic Administrative Law Act 1978

Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 135 ALR 753

Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215

Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411

Boucaut Bay Company Limited (In Liq) v The Commonwealth [1927] HCA 59; (1927) 40 CLR 98

Casey v Australian Broadcasting Tribunal (1988) 16 ALD 680

De Silva v New South Wales Medical Board, unreported; SCt of NSW; CA40323/95; 25 June 1993

Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat & Livestock Corp [1990] FCA 139; (1990) 96 ALR 153

Hall v New South Wales Trotting Club Ltd (1977) 1 NSWLR 378

Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

Lloyd v Walach [1915] HCA 60; (1915) 20 CLR 299

Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] 1 QB 451

Metropolitan Fire & Emergency Services Board v Churchill [1998] VSC 52

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 1612 CLR 24

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 73 ALJR 746

Perpetual Trustees Ltd (WA) v City of Joondalup [1999] WASCA 108

Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155

R v Lilydale Magistrates Court; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122

R v The Optical Board of Registration; Ex parte Qurban [1933] SASR 1

Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

Re Matthews; Ex parte MacKenzie [2000] WASC 147

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256

St Kilda City Council v Evindon Pty Ltd [1990] VicRp 67; [1990] VR 771

The Queen v Medical Board of South Australia; Ex parte S (1976) 114 SASR 360

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

Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326; (1985) 8 FCR 167

WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 30 ALR 559

WA Pines Pty Ltd v Hamilton [1980] WAR 29

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

1 MURRAY J: The originating motion before the court is primarily an application for orders nisi for certiorari and prohibition upon the grounds:

"(a) of a reasonable apprehension of bias by reason of:

(i) the Members of the Medical Board who are fulfilling the adjudicative function of determining the allegations the subject of the Notice of Inquiry ('Notice') were involved in the investigations leading to the issue of the Notice and/or the preparation for the hearing of the Inquiry thereby acting as complainant, accuser and/or prosecutor as well as adjudicator;

(ii) receiving and/or considering prejudicial information irrelevant to the matters the subject of the Notice, including allegations arising from or connected with the Applicant whilst employed at Sir Charles Gairdner Hospital and the matters the subject of a letter dated 8 May 2000 from Dr [K] to the Medical Board (and attachments);

(iii) the Medical Board closely identifying itself and relying on in the investigative and adjudicative stage the (effective) complainant, Dr [K];

(iv) communications passing between the Medical Board and its solicitors without the prior knowledge and consent of the Applicant after 16 May 2000;

(b) the decision to hold the Inquiry is void by reason that:

(i) the Medical Board did not address or consider the allegations the subject of the Notice at or before making the decision;

(ii) it was arbitrary alternatively unreasonable."

2 Ground (a) provides a standard formulation of that ground of disqualification from participating in the proceedings of a court or tribunal, or in any judicial or quasi-judicial process, that the proposed decision maker, although there is no evidence of actual bias, might not bring an impartial mind to the making of the decision in question. Disqualification will flow from the fact that a fair-minded reasonably well informed observer might reasonably apprehend that there may be a problem; hence the reference in the ground to "a reasonable apprehension of bias".

3 It is a fundamental principle of the administration of justice which will be held to apply as part of the processes of a court or tribunal having a duty to act in a judicial manner that it is obliged to accord procedural fairness to the parties before it, having regard to the composition of the tribunal and its perceived independence. Only in a clear case where, for example, a statutory scheme is seen to abrogate reliance upon a reasonable apprehension of bias as part of the principles of natural justice will a decision which would be in breach of the principle be upheld. The law may be summarised in the proposition that unless the application of the principle is abrogated by clear statutory provisions, unless its application has been waived by the affected parties, or unless out of necessity the principle cannot be applied in the particular case, a reasonable apprehension of bias on the part of the decision-maker will constitute a breach of the rules of natural justice sufficient to cause a court of review to disqualify the decision-maker and set aside a decision made adversely affecting the rights of a party in breach of the rule: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 176 ALR 644; Re Colina; Ex p Torney [1999] HCA 57; (1999) 200 CLR 386, 398.

4 Because a failure to observe an applicable requirement of the rules of natural justice or procedural fairness affects the jurisdiction of the court or tribunal concerned, the decision may be reviewed upon this ground by proceedings seeking prerogative relief and in particular, the writ of certiorari: Stollery v Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509.

5 Ground (b) raises the proposition that the Medical Board did not consider material relevant to the making of its decision to hold an inquiry, which decision is therefore categorised as being arbitrary and unreasonable. The contention so advanced might constitute jurisdictional error so as to properly ground an application for prerogative relief if in the result it may be seen that the Board failed to have regard to a matter the establishment of which was a necessary pre-condition for the valid exercise of the jurisdiction of the Board to order an inquiry. In that case it may be asserted that the Board misconstrued the power conferred upon it and should be taken to have failed to exercise the jurisdiction it had because it acted arbitrarily or unreasonably: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 - 179. Viewed in that way ground (b) raises a matter which might properly ground the issue of certiorari to quash the decision taken without there being any need to be concerned about the fact that the Board is not a court of law, but an administrative tribunal having a duty in the course of conducting its proceedings to act judicially.

6 The decision of the Board identified as being the subject matter of a writ of certiorari is that said to have been made on 16 May 2000 "in relation to the holding of an Inquiry under s 13 of the Medical Act 1894 into the conduct of the Applicant and the decisions thereafter relating to the conduct of the Inquiry". Dependent upon that application is the application upon the same grounds for an order nisi for prohibition to prevent the Board proceeding with the Inquiry. Those two applications may be dealt with together.

7 The application for an order nisi will succeed if upon any ground there is an arguable case that upon the return of the order nisi, an order absolute would be made or a writ would issue. There may be an argument as to whether in this context, because the Medical Board was concerned with an inquiry of a disciplinary value which could result in orders of a punitive kind being made against the applicant, the test that an arguable case must be established might have the further gloss placed upon it that, as Malcolm CJ said in Dempster v National Companies & Securities Commission (1993) 9 WAR 215 at 262:

"...an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it is an argument which has some prospect of success."

8 There is no doubt that ordinarily no such gloss will be placed upon the test that the applicant must merely demonstrate an arguable case, the purpose at this stage being to eliminate those cases which have no prospect of success on a cursory examination by the court of the matters at issue: Talbot v Lane (1994) 14 WAR 120, 152. The applicant relied upon the decision of Owen J in Stampalia v The Stewards of the WA Trotting Association [1999] WASC 7; 21 May 1999. The point appears not to have been argued in that case which was concerned with the grant of an order nisi for certiorari to review decisions of the tribunal as a result of which the applicant, the trainer, had been disqualified for a period of 12 months. His Honour referred to a series of authorities, although not Dempster, which was not cited to him, and held at par [8] that the test for the degree of satisfaction which must be reached before an order nisi would be granted "is relatively low" and expressed in the demonstration of "an arguable case".

9 On the other hand the distinction to which I have referred was noticed by Parker J in the earlier case of Re Capobianco; Ex p Castelli, unreported; SCt of WA; Library No 980567; 25 September 1998 at 5 - 6 where his Honour noted that the test is stated in the somewhat firmer terms to which I have referred, in quasi-criminal proceedings. I took the same view in Re Lawrence SM; Ex p Moltoni, unreported; SCt of WA; Library No 980010; 16 January 1998 at 7 - 8. The case was one where the matters before the Court of Petty Sessions were complaints for offences under the regulations made pursuant to the Occupational Safety and Health Act (WA) 1984. At the commencement of the hearing the dismissal of the complaints was sought on technical grounds. When the defendant was unsuccessful the application for orders nisi for writs of certiorari and prohibition was made. In considering the grant of the orders nisi, I applied the rather more strictly stated test, having regard to the nature of the proceedings. I relied not only upon the judgment of Malcolm CJ in Dempster, but also on the decision of Parker J in Re Judge Blaxell; Ex p Director of Public Prosecutions (WA) (1995) 12 WAR 289.

10 In both of those cases their Honours referred to the reluctance of the courts to interrupt or interfere with the progression of criminal or quasi-criminal proceedings in relation to which public interests were affected as well as the private interests of the parties to the proceedings. In my view that sort of consideration is apt to be expressed in this case and I would be inclined to apply the more strictly stated test as to what it means to require the applicant for the orders nisi to demonstrate an arguable case for relief.

11 However, having said that, I note that the matter was not debated before me and express the view that having regard to the issues raised by the grounds, it will I think be the case that debate about the formulation of the test for relief is in this case rather more one of semantics than of substance. In other words, if the applicant persuades me that the orders nisi should be made, it will be because I would be satisfied that there was an arguable case upon either formulation of the test. On the other hand, if I should refuse relief, it will, I think, be because in my view the applicant would have no prospect of success on the return of the order nisi.

12 The motion before me then contains the following paragraph:

(a) the decision made by the Medical Board on 26 February 2001 dismissing the Applicant's application that the Board members participating in the hearing of the Inquiry be disqualified on the ground of a reasonable apprehension of bias be quashed and in lieu thereof order that the hearing of the Inquiry be permanently stayed;

(b) the decision made by the Medical Board on 16 May 2000 to hold an Inquiry is void on the grounds set out in paragraph 1(b) hereof."

13 The Medical Act 1894 (WA), s 13(8) provides:

"(8) (a) Any person who is or was registered as a medical practitioner and who is aggrieved by any decision of the Board may in accordance with Rules of Court, which the Judges of the Supreme Court are herby authorized to make or prescribe, appeal to a Judge of the Supreme Court against such decision.

(b) Any such appeal shall be in the nature of a rehearing, and the Judge hearing the same may confirm, quash or vary the order made by the Board.

(c) The decision of the Judge shall be final and the Board shall give effect thereto according to the tenor thereof."

14 It is to be noted that there is a right of appeal by way of rehearing to a single Judge against "any decision of the Board" and that capacity is conferred upon a medical practitioner or former medical practitioner who is "aggrieved" by the decision. That appeal will lead to a final decision of this Court which is not therefore further appellable: Bradshaw v Medical Board of WA (1990) 3 WAR 322.

15 The relevant rules are the Rules of the Supreme Court, O 65, which by r 2(1)(b) applies the procedures of the rules to appeals to the court from a decision of the Medical Board. By r 3 the appeal is to be instituted within 21 days by filing a notice of motion. It may be possible to accept this motion as formally complying with the requirements generally of O 65 r 3 and r 4, although it is in my view odd to find par 3 expressed "in the alternative" to the grant of orders nisi for certiorari and prohibition. It should also be noted that two "decisions" of the Medical Board are referred to; that of 16 May 2000, referred to as a decision to hold an inquiry and that of 26 February 2001 referred to as the decision dismissing an application by the applicant that the Board members participating in the hearing of the inquiry should disqualify themselves on the ground of a reasonable apprehension of bias, and that the proceedings upon the inquiry "be permanently stayed." Strictly speaking it would seem that there are two decisions of the Board against which the applicant proposes to institute or has instituted an appeal. As I understand it, the applicant proposes that if orders nisi for certiorari and prohibition are made, it would not pursue par 3 of the motion instituting the appeal or appeals to which it refers. I find that an odd proposal. Either par 3 of the motion institutes an appeal or two appeals, or it has no effect at all.

16 Finally, in respect of par 3 the respondent argues that I should hold any such purported appeal to be incompetent because neither "decision" identified is a decision of a kind from which an appeal may lie under s 13(8), neither decision being in the nature of a final decision determining an issue before the Board.

17 I note in that regard that in Isaachsen v The Medical Board of WA (1991) 4 WAR 303 Ipp J, dealing with an appeal by a party successful before the Board who had nonetheless been subjected to an order by the Board that he pay the costs of the hearing, considered the nature of the right provided by s 13(8). His Honour held at 306:

"In my view the intent of s 13(8) is to provide a mechanism by which a single Judge of this Court is finally to dispose of all questions, whether of law or fact, that might be raised by a person aggrieved at any decision of the respondent. Although the word 'appeal' is used, in my view s 13(8) is intended to encompass not only appeals in the usual sense, but also questions ordinarily capable of resolution by review. This purposive construction is supported by the use, in s 13(8), of the word 'quash', a term which is normally used in connection with review. Accordingly, in my view, a medical practitioner who is aggrieved by a decision of the Board because it is taken contrary to the rules of natural justice, is entitled, under s 13(8)(a) of the Act, to appeal to a Judge of this Court, who, in turn, is empowered to 'confirm, quash or vary the order' concerned."

I note in that regard that the respondent does not argue the proposition which might flow from the obiter observation of Ipp J, that the terms in which the right of appeal are conferred by s 13(8) necessarily excludes the capacity to approach the court for prerogative relief.

18 In Isaachsen the court was not required, of course, to deal with the question of the meaning of the word "decision" within s 13(8), a question upon which the subsection itself is silent, except that a decision within the meaning of the subsection is something which would result in an order being made by the Board which may be confirmed, quashed or varied by the Judge on appeal and the Judge on appeal thereby will make a decision within the meaning of the subsection. In addition, a decision within the meaning of the subsection is something about which the medical practitioner who is its subject may be "aggrieved", a term which in this context has itself a well understood meaning.

19 The purpose of referring to those questions at this juncture is to note that the questions which may arise in respect of par 3 of the notice of motion would seem to me to be the question firstly whether it institutes or purports to institute an appeal under s 13(8), or whether in the alternative it merely foreshadows the institution of an appeal to a single Judge if the application for an order nisi for certiorari and prohibition is unsuccessful. If the proper view is that par 3 does purport to institute an appeal there may be a question, not argued by the parties, as to whether upon discretionary grounds orders nisi for prerogative relief should be denied.

20 If the proper view is that the paragraph seeks to institute an appeal, the question arises whether the court may at this stage accept the respondent's invitation to rule upon the competence of the appeal and if it is proper to embark upon the consideration of that question, then the ultimate question to which I may finally have to return would be the merits of the proposition advanced by senior counsel for the respondent that I should hold in effect that there is no appeal validly instituted because that which is purported to be instituted is incompetent.

21 By par 4 of the motion an application is made that, "Pending the determination of this application, the hearing of the Inquiry be stayed until further order". In so far as that is an application for a stay in the terms in which it is couched, it was unnecessary to address the question on the hearing of the application for orders nisi because the respondent undertook that the inquiry, due to recommence on 19 April, would not proceed pending the giving of my decision.

22 But as argued it seems clear that par 4 is intended to make an application for a stay of the proceedings before the respondent Board upon the grant of an order nisi until the determination of the application for final relief by way of certiorari or prohibition, O 56 r 5(2) of the Rules of the Supreme Court is relied upon. In passing I note that there appears to be no application for a stay of proceedings before the Board pending the hearing of any appeal. There is no reliance upon the power in that regard derived from a combination of the Rules of the Supreme Court, O 65 r 12 and O 63 r 15.

23 So far as this application runs, I accept that there would be an onus upon the applicant to satisfy me that upon the grant of the orders nisi there are special circumstances, such as that the refusal of a stay would be likely to render the application for final prerogative relief nugatory, which would justify the departure from the ordinary rule that the process of review, whether by way of appeal or otherwise, will not of itself justify an order having the effect that the decision challenged and proceedings consequent thereon should be deprived of effect before the final determination of the court upon the review process: see for example Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 per Ipp J at 81 - 87 and per Anderson J at 88 - 95, with both of whom Pidgeon J agreed.

24 It was there noted that the grant of a stay involved an extraordinary or exceptional jurisdiction only to be exercised where necessary to preserve the essential rights of the parties in the proceedings under challenge or to preserve the process of the challenge or review made to those proceedings if it may ultimately be the case that if the applicant for a stay was to succeed, he or she could not be restored to the position deemed to be appropriate upon the making of final orders to determine the process of appeal or other form of review. Such views have been expressed in the authorities without particular reliance upon the process of review with which the court is concerned. For example, in Hamersley Iron the stay sought was pending the determination of an application for special leave to appeal to the High Court. Further, such an approach to the power to grant a stay has been taken whether the applicant placed reliance upon the rules to which I have referred above, upon the general provisions of O 47 r 13 (which in part requires the establishment of "special circumstances"), or upon the inherent jurisdiction which the court undoubtedly possesses.

25 For myself I would see no need to relax the stringent test applied in other contexts by reason of the fact that this is an application for orders nisi for certiorari and prohibition. I see nothing in that circumstance to justify any relaxation of the test to be applied and I note that in Stampalia, when dealing with an application for a stay in the context of an application for an order nisi for a writ of certiorari, at par [11] Owen J, although his Honour said he "would shy away from phrases such as 'exceptional circumstances'.", went on to formulate the test for the grant of a stay in the question, "Has the applicant demonstrated that there are special circumstances sufficient to satisfy the court that it is just and reasonable to order a stay so as to preserve the subject matter and integrity of the litigation?".

26 Lastly, there are applications, which I take to be dependent upon the grant of orders nisi, that within five days thereafter the respondent give discovery of documents relevant to the application and that the applicant have leave to issue a subpoena duces tecum directed to the Chief Executive Officer of the Health Department to producer various records to the court. Further reference to these may await consideration of the grant or refusal of the orders nisi, but I note that as I interpret the applications to which I have referred and the argument in support of them, these are applications dependent upon the grant of relief by way of order nisi rather than upon the institution of the appeal which, in any event, is provided by s 13(8)(b) to be "in the nature of a rehearing".

27 It is convenient to commence with the review of the relevant statutory provisions. The respondent Board is established by the Medical Act, s 4. It consists of 12 persons now, and at the time relevant to the events with which the application before me is concerned it was a Board of 11 persons. Its membership comprised the Chief Executive Officer of the Health Department, if a medical practitioner, or a medical practitioner who is an officer of the Public Service and is nominated by the Chief Executive Officer, seven other medical practitioners, a legal practitioner, the Chief Executive Officer of the Department concerned with the administration of the Consumer Affairs Act 1971 and a person appointed by the Minister who is not a medical practitioner. Even at the point of considering the composition of the Board it may be seen that it is predominantly a Board concerned to provide a regulatory mechanism with respect to the practice of medicine by medical practitioners themselves, with the addition of a public service input, legal input and consumer input.

28 There is no provision in the Act for the Board to sit in divisions, but by s 4(2), a quorum of the Board is constituted by five members of whom not less than three are to be medical practitioners. The Board has a president elected by its members from among their number, who is to chair the meetings of the Board. In his or her absence from any meeting, those present may elect a chairman for that meeting. Provision is made for the Board to make decisions by a voting process. By s 7 the Board has power to appoint, pay and dismiss various officers, including a Registrar. By s 8 it may sue and be sued in its own name.

29 In short, where the Board acts to perform its statutory functions it does so as such and in my opinion it is clear that the statutory scheme intends that the Board shall act as such and any of its members are entitled to participate in the performance by the Board of its functions. Indeed, it is open to conclude that persons appointed to membership of the Board are expected to participate in the functioning of the Board and it is the case, under s 5(1), that members of the Board other than the Chief Executive Officers may be removed by the Governor. It is a power the exercise of which is not conditioned upon the need to rely upon any particular ground.

30 Section 6 provides a rule-making power which the Board has exercised in making the Medical Rules 1987. By r 4 the Board is to meet at least once a month at a time and place fixed by it. Rule 6 provides for the absence of a quorum. The other provisions are not material to the present applications.

31 So far as material to those applications, the Act s 13 provides:

"(1) Where it appears to the Board that a medical practitioner, not being a body corporate, may be -

(a) guilty of infamous or improper conduct in a professional respect;

(b) affected by a dependence on alcohol or addiction to any deleterious drug;

(c) guilty of gross carelessness or incompetency;

(d) guilty of not complying with or contravening a condition or restriction imposed by the Board with respect to the practice of medicine by that medical practitioner; or

(e) suffering from physical or mental illness to such an extent that his or her ability to practise as a medical practitioner is or is likely to be affected,

the Board shall hold an inquiry into the matter.

(2) ...

(3) Where after an inquiry the Board is satisfied in relation to a matter referred to in subsection (1)(a), (b), (c) or (d) with respect to a medical practitioner the Board may by order impose any one or more of the following penalties, namely -

(a) remove the name of the medical practitioner from the register;

(b) suspend the registration of the medical practitioner for such period not exceeding 12 months as is specified in the order;

(c) a fine not exceeding $10,000;

(d) a reprimand.

(4) Notwithstanding subsection (2) or (3), the Board may, in lieu of imposing a punishment referred to in subsection (2) or (3)(a) or (b) on a medical practitioner, require the medical practitioner to give a written undertaking to be of good behaviour for such period as the Board thinks fit and to comply, during that period, with such restrictions or conditions, or both, if any, relating to the practice of medicine and training for that practice as the Board thinks fit.

(5) The Board shall for the purposes of an inquiry relating to a matter referred to in subsection (1)(e) obtain a preliminary report from a medical practitioner.

(6) The Board shall give the medical practitioner concerned reasonable notice of the time and place of any inquiry to be held under subsection (1) and shall afford the medical practitioner reasonable opportunity to call or give evidence and cross-examine witnesses and to make submissions.

(6a) If the medical practitioner to whom notice has been given pursuant to subsection (6) does not attend at the time and place fixed by the notice, the Board may conduct the inquiry in the absence of the medical practitioner.

(6b) The Board may appoint a legal practitioner to appear in the inquiry to assist the Board.

(6c) A medical practitioner may be represented by a person other than a legal practitioner.

(6d) ...

(6e) ...

(6f) Where pursuant to subsection (5) the Board receives a report that the physical or mental health of a medical practitioner is affected to such an extent that his or her ability to practise as a medical practitioner is affected or is likely to be affected the Board may direct the medical practitioner to submit himself or herself within the time specified by the Board to an examination by -

(a) 1 medical practitioner appointed by the Board and 1 medical practitioner nominated by the medical practitioner in question; or

(b) if the medical practitioner in question fails to nominate a medical practitioner for the purposes of paragraph (a), by 2 medical practitioners appointed by the Board.

(6g) Where after receiving the reports referred to in subsection (6f) the Board is satisfied that the medical practitioner in respect of whom the reports are made is suffering from physical or mental illness to such an extent that his or her ability to practise as a medical practitioner is or is likely to be affected, the Board may -

(a) remove the name of the medical practitioner from the register;

(b) suspend the registration of the medical practitioner; or

(c) impose restrictions or conditions or both on the practice of medicine by the medical practitioner.

(6h) Where a medical practitioner fails to submit himself or herself for examination pursuant to subsection (6f) within the time specified by the Board, the registration of the medical practitioner shall by force of this subsection be suspended until -

(a) the medical practitioner submits himself or herself for examination as directed by the Board; and

(b) the Board has received reports from each of the medical practitioners who have conducted the examination as required by subsection (6f).

(6i) The Board may make such order as to the payment of the costs of the inquiry by the medical practitioner into whose conduct the inquiry has been held as the Board thinks fit.

(7) Upon the making of an order of suspension of registration and during the period specified in such order the name of the medical practitioner concerned shall be deemed to be erased from the Register and he shall for the period aforesaid be deemed not to be a medical practitioner within the meaning of this Act."

32 In Ex p St Vincent; Medical Board of WA (1989) 2 WAR 279 it was held that the inquiry to which s 13(1) refers was a disciplinary inquiry with the Board having a duty to act judicially once embarked upon it. Although the conclusion of the court was stated widely in that way, it is to be noticed that the relevant portion of s 13(1) with which the court was concerned was s 13(1)(a). The court held that the subsection gave no power to the Board to hold a purely investigative inquiry for the purpose of determining whether or not any charge might be laid against a medical practitioner or the Board might form the opinion that a medical practitioner may be guilty of infamous or improper conduct in a professional respect. Ipp J, with whom Wallace and Brinsden JJ agreed, at 283 and 285 contrasted the "disciplinary inquiry of a judicial nature" provided for by s 13(1) with "a purely investigative inquiry of an administrative nature" for which the Act did not expressly provide, in contrast to the situation provided for in some other jurisdictions discussed by his Honour at 288. His Honour observed that the Board was "entitled to carry out an investigation prior to holding a disciplinary inquiry under s 13."

33 To my mind the procedural requirements and the nature of the processes provided for in s 13 are clear. Whether upon, or without a preliminary administrative investigation, a necessary pre-condition for the holding of an inquiry into any matter enumerated in s 13(1) is the formation by the Board of the opinion that a medical practitioner may be brought within any of the matters enumerated as the proper subject of an inquiry. The opinion must be formed by the Board, but it results from an administrative process to which the rules of natural justice will not apply.

34 Although the statutory context was different, in my opinion in respect of this aspect of the process it is appropriate to refer to the decision of the High Court in The Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582. At 594 Fullagar and Taylor JJ referred to the formation of the opinion of the Board as being merely a necessary pre-condition before, in that case, the Board proceeded to have the medical practitioner charged before the tribunal, and in this case, before the Board becomes obliged to proceed with the inquiry provided for by s 13. Their Honours said:

"The formation of the opinion which satisfies this condition is, in no sense, any part of a judicial process; on the contrary the requirement that it shall be formed before a charge is preferred is but an administrative safeguard against the formulation of charges before the tribunal based upon convictions for trivial offences or for offences which cannot be thought to call for any disciplinary action under the Act."

35 In my opinion the same may be said of the process envisaged by s 13(1). The formal inquiry process is not to be held before, but is by the section required to be held after, it appears to the Board that a medical practitioner may be brought within any one or more of par (a) - par (e) in circumstances which may, in the first four cases, render the medical practitioner liable to a punishment for which s 13(3) provides, which may lead to a coercive requirement under subs (4) or, which may in a case which may fall within subs (1)(e) lead to the coercive processes provided by subs (6f) - subs (6h) inclusive. The obvious purpose at that point is merely to filter out trivial matters, matters without merit, or matters which do not in the public interest justify the holding of an inquiry which, by subs (6),must be upon notice to the medical practitioner, an inquiry in which he or she is entitled to participate, an inquiry in which under subs (6c) he or she is entitled to be represented, and an inquiry the costs of which under subs (6i) he or she may be ordered by the Board to pay. The formation of the opinion, in short, is an administrative filtering process before the practitioner may be required to become involved in an inquiry.

36 I note that although the notice required by s 13(6) is "of the time and place of any inquiry to be held", Ipp J held in Cranley v Medical Board of WA, unreported; SCt of WA; Library No 8668; 21 December 1990, at 50 - 52, that the rules of natural justice required that the subject matter of the inquiry be sufficiently particularised to enable the medical practitioner to prepare and meet the case put against him or her, and that the subsequent inquiry should not without due notice stray outside those particulars. In that sense the giving of notice of the inquiry marks the commencement of a quasi-judicial process inherent in the concept of an inquiry in the terms stipulated by the section.

37 In my opinion there is no decision of the Board to hold an inquiry. It merely forms the opinion to which s 13(1) refers. Then by that subsection an inquiry must be held. The Board is under an obligation to do so and its coercive or disciplinary powers are then activated at the conclusion of the inquiry if, in terms of s 13(3) the Board is satisfied of the existence of any matter referred to in subs (1)(a), (b), (c) or (d), or in respect of subs 1(e), the Board is satisfied of the incapacity to practice in terms of subs (6g).

38 That satisfaction in every case will result from the Board's consideration of the materials placed before it at the inquiry. The formation of the opinion referred to in s 13(1) can play no part in the process of achieving affirmative satisfaction as a result of the inquiry held. Nor does the fact of the Board's prior formation of that opinion have any relevance during the inquiry; nor will the materials upon which the opinion was formed have any such relevance unless placed before the Board during the inquiry, when they will again require to be tested and considered for whatever persuasive value those materials may then be thought by the Board to have.

39 The prior formation of the opinion referred to in s 13(1) is certainly a necessary pre-condition to the obligation imposed upon the Board to hold an inquiry, but upon that inquiry the nature of the opinion formed is not one which the Board is obliged to consider and have regard to. On the contrary, the Board having noted the formation of that opinion, it will be irrelevant to its determination of the issues raised in the inquiry. The formation of the opinion can have no legal effect upon the applicant's rights and therefore, for that reason alone, in my opinion, neither certiorari nor prohibition will lie: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 164 - 165, 179. That consideration of itself is sufficient to dispose of the applications for the orders nisi. There can be no arguable case for the grant of prerogative relief in a final form.

40 However, as the matter was extensively argued I propose to give consideration to whether there is an arguable case on the merits of the grounds upon which the application depends. To do so it is necessary to advert briefly to the facts. In doing so I should observe that I have read the voluminous affidavit evidence upon which the applicant relies, but think it unnecessary in the present context that I should refer to it in detail. I have been assisted by a lengthy chronology and a document entitled Statement of Relevant Evidence and Inferences, both filed by the applicant.

41 On 17 March 2000 a patient of the applicant made a statutory declaration in support of a letter of complaint about her treatment by the applicant. This was lodged with the Board and apparently referred by the Registrar to the applicant for a response. That was provided in writing on 25 March 2000. The Complaints Sub-Committee of the Board examined this material at a meeting on 18 April 2000 upon which date the matter was considered by the full Board. Eight of the eleven members of the Board were then present. The Board resolved to seek further opinions on the matters raised from the patient's treating neurologist at a second hospital to which she was admitted upon her discharge from the applicant's care, and from a Dr K, a senior specialist neurologist (the discipline of the applicant) and a former head of department in which the applicant was then serving as a junior doctor. The Registrar's letter to Dr K dated 4 May 2000 enquired in effect whether Dr K knew of any other matters which might be cause for concern in respect of the applicant's professional conduct.

42 By letter dated 8 May 2000 Dr K provided a detailed opinion, not only upon the case of the original complainant to the Board, but upon other cases handled by the applicant with which Dr K professed familiarity. Not only does that written response reflect adversely upon the applicant's professional competence in forthright terms, but it makes allegations of inadequate and unprofessional patient care, including allegations of untruthfulness on the part of the applicant. Whatever one thinks about the terms in which the letter was written, it is fair to say that if the allegations made by this senior medical practitioner, who was asked to comment because of his supposed familiarity with the work of the applicant, were substantiated, they were allegations in respect of matters capable of falling within at least two of the paragraphs of s 13(1). Further, the response provided by Dr K accepted the invitation of the Registrar to disclose to the Board any material other than the subject matter of the complaint by the applicant's patient which might provide cause for concern in connection with the applicant's professional conduct.

43 This matter again came before the Board on 16 May 2000 which, it will be recalled, is the date upon which the applicant asserts that the Board made its decision to hold an inquiry. Again, eight members of the eleven member Board were present. Seven of them had constituted the quorum on 18 April 2000. The minutes note that the Board reviewed the correspondence from Dr K and "resolved to refer the information to [the Board's solicitor] for consideration of Medical Board Inquiry."

44 Although the resolution is not expressed precisely in the terms of s 13(1), it is to be accepted that the Board did resolve to hold an inquiry, if for no other reason than that the next thing that occurred was that on 13 June 2000 the applicant was served with a notice of inquiry issued by the Board under the hand of the Registrar notifying him that it appeared to the Board that he may be guilty of gross carelessness or incompetency in respect of his treatment of various patients in nominated particulars, the patients including the original complainant to the Board and others to whom Dr K had referred in his letter. Further, it was alleged that it appeared to the Board that the applicant may be guilty of improper conduct in a professional respect and particulars of that allegation were given.

45 The balance of the notice advised the applicant of his rights and obligations in respect of the inquiry and briefly of the powers of the Board if, after inquiry, the Board "is satisfied that you are guilty of improper conduct in a professional respect or gross carelessness or imcompetency". Accompanying the notice was a summons issued under the Medical Act to the applicant to attend before the Board on 30 June 2000 bringing with him his notes and records for the treatment of the patients in question.

46 It is evident that thereafter the Board's solicitors were proceeding to prepare for the inquiry. A Dr Stewart-Wynne was commissioned to provide an expert report and he did so in August 2000. There was contact between the Board's solicitors and the solicitors for the applicant in relation to the provision of records and the like. In October Dr K was invited by the Board's solicitors to comment on the report of Dr Stewart-Wynne. Comment was provided. Its substantive content does not seem to have been different from his original letter. After obtaining those comments, in October 2000 the Board's solicitors sought to have the views of another expert, Professor Burns, who was in Adelaide. He was instructed by the solicitors by letter dated 5 November 2000 and he provided a report on 6 November 2000, which report was on that day served upon the applicant's solicitors. On 9 November an expert report from Dr K was obtained by the Board's solicitors and it was served on the applicant's solicitors on Friday, 10 November.

47 The hearing of the inquiry commenced before the Board on Monday, 13 November 2000 and there was a further hearing on 16 November. It is clear that the Board regarded these as preliminary meetings or directions hearings and indeed upon the application of counsel for the applicant, an adjournment was granted. At the same time various amendments were made to the notice of inquiry to delete certain allegations, to amend certain particulars and to add a further charge. I see nothing in that regard which is contentious in the present context.

48 The quorum of the Board which was convened to embark upon the inquiry on 13 November 2000 was the President, Prof Michael, who in accordance with s 4(3) chaired the meeting of the Board, Prof Stokes, Mr Heenan QC, Dr Surveyor and Mr Walker. Each of those members of the Board had been present at the meeting held on 16 May 2000 at which the Board had formed the opinion which caused the inquiry to be held. Of course it will be obvious that there being eleven members of the Board, eight of whom were present on 16 May 2000, it would not be possible in any event to obtain a quorum of five members of the Board who were not involved in that decision.

49 When the hearing was adjourned on 16 November 2000 it was anticipated that it would be continued in the latter part of January or February of this year. In February there was correspondence between the solicitors with respect to the issue of apprehension of bias. Particular reference was made to the position of Prof Michael and Prof Stokes, who ultimately in February withdrew from further participation in the inquiry. When the Board re-convened for its hearing conducted on 26, 27 and 28 February 2001, Prof Stokes was replaced by Dr McCall. He had not been a member of the Board which sat on 16 May 2000.

50 However, the application was made that all the members of the Board sitting should disqualify themselves on the basis of reasonable apprehension of bias. The Board dismissed that application for reasons which were given by Mr Heenan QC. In essence, the Board considered that the structure of the Act was such that it functioned as a whole and it saw no reason why participation by Board members in the formation of the opinion relevant to the holding of the inquiry under s 13(1) should disqualify any Board member from participating in the inquiry which was then held. The applicant reserved his position in respect of that ruling by which I consider was meant that he maintained his view that the Board as presently constituted was disqualified from sitting, but nonetheless the hearing continued with the participation of the applicant represented by senior counsel until it was ultimately adjourned to be continued at a later date.

51 In the first place, it seems to me that it is not arguable that the Board's contact with the case at the investigatory stage of the receipt of complaints and the formation of the opinion whether in respect of any of them the practitioner might be guilty of improper conduct or gross carelessness or incompetency so that an inquiry was required to be held, may give rise to a reasonable apprehension of bias as that test for the disqualification of Board members is understood by the law. That view may be summarised in the observation that in my view there is nothing to suggest that the members of the Board involved in the preliminary function in any way stepped outside, or went beyond the involvement necessitated by the statutory scheme. There is nothing, I think, to suggest that members of the Board could lawfully be excluded from participation in that function, or that having performed that duty they might be lawfully required not to be involved in the subsequent inquiry. Indeed, as I have said, were that the case, a quorum of the Board could not be found to conduct the inquiry.

52 But more importantly, it seems to me that there is nothing in the Board's consideration of the original complaint, its decision to seek comment on that matter and upon any other relevant matter from Dr K (an obviously appropriate person of whom to enquire), or the processes by which the opinions expressed by Dr K were subjected to scrutiny by other relevant medical specialists, which could give rise to any suggestion that Board members lacked any degree of impartiality, had made any pre-judgment, or that one or more members of the Board identified themselves with a prosecution of the applicant before the Board.

53 My conclusion may be expressed as an observation that the principle of disqualification for apprehended bias must give way to a case of necessity, but for my part I would prefer to rest my judgment upon this point upon the basis that there was nothing in the circumstances placed before me to reveal an arguable case of apprehended bias on the part of the Board collectively, or in the case of any individual member: cf R v Medical Board of SA; Ex p S (1976) 14 SASR 360, 366 - 367; Builders' Registration Board of Qld v Rauber (1983) 57 ALJR 376, 377, 382.

54 The Board's solicitors were thereafter to perform the role assigned to them by s 13(6b) to assist the Board to conduct the inquiry. That was not a prosecutorial role, but a role which involved the discharge of the responsibility to ensure that to the fullest extent possible, the Board had placed before it material which was or might be relevant to the issues live upon the particulars contained within the notice of inquiry. There is nothing to suggest that to the extent that that involved an evidence gathering role, the applicant was prejudiced by not being placed on notice in respect of the material which was, or was to be, introduced into evidence before the Board so that the applicant might have the opportunity to be afforded under s 13(6) "to call or give evidence and cross-examine witnesses and to make submissions." Nor, I think, is any such incapacity seriously suggested.

55 To the extent that the Board's solicitors or counsel assisting before the Board upon the inquiry adopted an openly prosecutorial role, there is nothing to suggest that the Board sitting upon the inquiry was identified with that prosecution. Certainly to review the matters in the notice of inquiry and have it amended was, in my view, to do no more than seek to ensure that the inquiry focused upon matters which, in the Board's view, required a decision one way or the other.

56 Further, I can see no arguable case which could bring the matter to the point of the making of orders nisi, having regard to the matters raised by ground (b). All the evidence appears to me to suggest that the Board formed the opinion which gave rise to the inquiry by considering the capacity of the allegations then before it to fall within any of the paragraphs of s 13(1). No judgment appears to have been made about whether those allegations would be made out and nor could it be until all the evidence was available, including the expression of competent expert opinion in the relevant field of medical practice. The particulars contained within the notice of inquiry flow from the nature of the material then before the Board, particularly that emanating from Dr K. To my mind, to act upon that basis is not to demonstrate that the formation of the opinion was "arbitrary and unreasonable". Nor does it demonstrate that the Board acted in a way which was administratively unreasonable as that concept is understood by the law because it was without "evidence from which the Board could honestly and reasonably form an opinion that the statutory criteria may be satisfied", as counsel's outline of submissions puts it.

57 In my view there is a confusion at this point of the argument between what may reasonably base the opinion to which the Board must come before, as a matter of the mandatory operation of the statute, an inquiry must be held, and evidence which might be admissible in a court of law, which the Board self-evidently is not. At one point in this submission, for example, reference is made to "admissible evidence sufficient to constitute a prima facie case". Further, it seems to me that the opinion is to be formed upon the basis of the information before the Board and not, as ground (b)(i) has it, having regard to "the allegations the subject of the Notice [of inquiry]". The particulars contained within that notice, as I have already mentioned, do no more than reflect the subject matter of the inquiry in sufficient detail to enable the medical practitioner concerned to understand the allegations with which he or she must deal in the inquiry, and in respect of which the decision is to be made whether to call or give evidence, how witnesses are to be cross-examined and the like.

58 For all those reasons, in my opinion I am obliged to dismiss the application that I make orders nisi for certiorari and prohibition.

59 I turn then to the question of the appeal or proposed appeal under s 13(8). I have touched upon the difficulty created by the form of the application which expresses par 3 in the alternative, but if I take the view that in light of my decision about the application for orders nisi for certiorari and prohibition, the applicant wishes to appeal in terms of par 3 against the "decisions" identified therein on the grounds advanced, then if the appeal falls within s 13(8) it is an appeal as of right. Leave need not be sought. Nonetheless, as, despite the heading to the motion which describes it as one for a writ of certiorari and writ of prohibition, par 3 has brought the question of an appeal before me, I think I may accept the invitation of the respondent to express a view about whether in the form of par 3 the right of appeal conferred by s 13(8) is validly instituted, or whether the purported appeal is incompetent upon the grounds argued.

60 I refer to the terms of s 13(8). The crucial question is what it means by a "decision" of the Board. It seems to me to be clear that the formation of the opinion under s 13(1) does not in any meaningful sense constitute a decision of the Board. I would rely upon the Medical Board of Queensland v Byrne. The formation of the opinion has a statutory consequence. An inquiry must be held. No decision of the Board that that should be so is required or made. In short, for the reasons given above, which require the conclusion that prerogative relief will not lie in respect of the formation of the Board's opinion in terms of s 13(1), no appeal will lie to this Court against the formation of that opinion.

61 So far as the decision said to have been made on 26 February 2001 dismissing the application that the Board members participating in the hearing of the inquiry disqualify themselves on the ground of reasonable apprehension of bias is concerned, that also, in my opinion, does not constitute a decision from which an appeal will lie under s 13(8) because it in no sense determines adversely to the applicant any question relevant to the power of the Board to punish him, or make any coercive order in respect of him or his right to practice medicine. The fact that the members of the Board declined to disqualify themselves merely exposed the applicant to the continuation of the inquiry being conducted by that particular quorum.

62 The meaning of the word "decision" is to be determined in the context of the fact that it is from a "decision" that an appeal may be brought as of right. An application may be made for leave to appeal against a decision of a court of summary jurisdiction by a person who is aggrieved by that decision, under the Justices Act 1902 (WA), s 184 and s 185. Of course by s 4 of that Act the word "decision" is defined in effect as a final determination of a proceeding before the summary court. There is a line of authority, much of which pre-dates the present form of the provisions of the Justices Act concerning appeals from summary courts, supporting the conclusion that appellable decisions and orders of courts of summary jurisdiction will be those which are determinative of the rights and liabilities of the parties to the proceedings. The authorities in question were referred to and applied by Wallace J in Carter v Evans (No 1) (1990) 3 WAR 90, 92 in a case where the appeal which was sought to be taken was in respect of a Magistrate's order for the supply of certain particulars of charges laid by complaint.

63 I would take the same view of the meaning of the word "decision" in the context of s 13(8) and this is the view commonly expressed in the context of a right of appeal. For example, in Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635 the question before the Court of Appeal of Victoria was whether an appeal under the Vic Administrative Law Act 1978 to a Judge of the Supreme Court against the expression of an opinion by a medical panel under the Accident Compensation Act 1985 was competent on the ground that the panel was required to give reasons for its decision and to accord procedural fairness to persons dealing with it. In similar fashion to what occurs under the Workers' Compensation and Rehabilitation Act 1981 of this State, certain medical questions were required to be referred to a medical panel for an opinion, but under the statute the panel's opinion was adopted as the determination of the court in respect of the question referred. For that reason it was held that such an expression of opinion was a "decision" within the meaning of the Administrative Law Act so as to enable an appeal to be brought from it because, as Winneke P put it at 649, it was "a determination which effectively disposes of the issues between the parties". Reference may be made to the expression of a similar view by Callaway JA, with whom, in particular, Ormiston JA agreed, at 659.

64 In that case, not unnaturally, reference was made to the decision of the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 where it was held that for the purposes of the Adminstrative Decisions (Judicial Review) Act 1977 (Cwth), a "decision of an administrative character" made under an Act would be one which at least, in a practical sense, finally determined the matter at issue between the parties and that unless a decision made along the way to such an ultimate decision was a necessary prerequisite or an essential preliminary to the ultimate decision, it would not be regarded as a reviewable decision. Another essential quality of such a reviewable decision was that it should be a substantive rather than a procedural determination.

65 Of course if that were not so, any ruling about the evidence which might be placed before the Medical Board, a ruling about the procedure by which the inquiry would be conducted, particular findings of fact made by the Board or the acceptance of a particular expert opinion, might of themselves be challenged regardless of whether the final determination of the matters particularised in the notice of inquiry in support of the charges laid had been made adversely to the medical practitioner concerned.

66 To refuse the application that the Board as presently constituted should disqualify itself from continuing with the inquiry is not, in my view, a decision of the character described above. If a decision of the Board adverse to the applicant should ultimately result, then it will be appellable and, as Ipp J held in Isaachsen, an appropriate ground might be the denial of natural justice involved in the composition of the Board in circumstances, contrary to the conclusion to which I have come in this case, of reasonably perceived bias inherent in the constitution of the Board. But the decision to continue the inquiry by the Board as presently constituted does not of itself involve any conclusion adverse to the applicant in a sense determinative of any matter raised by the notice of inquiry.

67 That view seems to me to be reinforced by the requirement in s 13(8) that the medical practitioner having the right of appeal should be a person "aggrieved" by the decision in question. It seems to me that in this context a medical practitioner may be aggrieved by a decision of the Board adverse to him or her which prejudicially affects him or her or the capacity to practice medicine. It is not intended, I think, to give to a person a right of appeal against a decision made in respect of another medical practitioner, but that is an issue which may await another day. The important consideration, it seems to me, is that there is some real and direct interest in the appellant in respect of a decision made adverse to his or her interests as a practicing medical practitioner. A ruling as to the constitution of the Board is not of itself such a decision: see for example McCarthy v Xiong (1993) 2 Tas R 290; Re K P Wee Investments Pty Ltd (1994) 12 ACLC 157, 159 and Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 1035; (1995) 127 ALR 580.

68 In that sense the decision referred to in s 13(8)(c) of a Judge determining an appeal will be essentially of the same character as the decision from which the appeal is brought. It will result in a determination in the nature of a final order which will deal with the order made by the Board in the way described in s 13(8)(b) and I note that the orders which may be made by the Board after an inquiry are those specified in subs (3), (4), (6g) and (6i).

69 Finally, the view to which I have come is in my view supported by the Full Court's decision in Bradshaw which held that, to provide that the appeal was to be in the nature of a re-hearing in the present context, did not mean that the court would conduct a hearing de novo, but that it would have regard to what had been introduced before the Board at the hearing of the inquiry and the decision of the Board, together with any fresh evidence adduced before the appeal court pursuant to the Rules of the Supreme Court, O 65 r 10, the rights of the parties being determined as at the date of appeal rather than as at the date of the initial order from which the appeal is brought. It is the holding of the inquiry which generates the evidentiary and factual material which will principally be the subject of the appeal as the material upon which the decision of the Board from which the appeal is brought depended. For those reasons, in my opinion, that which purports to be an appeal within the meaning of s 13(8) of the Act is not of that character because neither decision identified is an appellable decision within the meaning of the Act.

70 It follows from the views so expressed that the dependent applications for a stay of the hearing of the inquiry, for discovery and for leave to issue a writ of subpoena duces tecum need not be further considered. The applications made by the originating motion are dismissed.