WALTON v McBRIDE

Maxwell v Murphy (1957) 96 CLR 261 distinguished; Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 applied; R v Vine (1875) LR 10 QB 195; In re a Solicitor's Clerk [1957] 1 WLR 1219; Nicholas v Commissioner for Corporate Affairs (Victoria) (1987) 5 ACLC 673 and Commissioner for Corporate Affairs v X and Y [1987] VR 460 referred to;

(3) If the amendments did have a retrospective operation in the relevant sense, there was, in any case, a sufficient indication of the legislative intention that they should so apply; (4) (Dismissing appeal) The provision of meaning to the phrase "professional misconduct" as defined was not timely and would be better provided by the Court (and semble by the Tribunal) after the evidence was complete and the findings of fact made.

STATUTES - retrospective effect and operation of presumption against - whether sufficient indication of contrary intention - whether achievement of purpose of the Act requires construction attaching present and future consequences to past conduct. Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 approved.

APPEAL - definition of statutory expression - "professional misconduct" - right of appeal under s32U Medical Practitioners Act 1938 during an inquiry - whether decision of Tribunal on preliminary question of law correct - held: A decision of the Court of Appeal on this question was not timely until the evidence before the Tribunal was complete and the facts relevant to the issue found - appeal dismissed.

WORDS AND PHRASES - "professional misconduct". Pillai v Messiter (No 2), Court of Appeal, unreported, 24 May 1989; (1989) NSWJB 93.

Medical Practitioners Act 1938, s27, s28, s320, s32U. Medical Practitioners (Amendment) Act 1987, Schedule 2 CL11; Schedule 4 CL9.

ORDERS (1) Appeal dismissed as not timely; (2) Cross-appeal dismissed; and (3) The costs of the proceedings in the Court of Appeal to be costs in the proceedings before the Tribunal.

Kirby P, Priestley JA and Hope AJA The appeal and cross-appeal before the Court concern the appropriate test to be applied by the Medical Tribunal of New South Wales to complaints of professional misconduct made against Dr William McBride.

Dr McBride is the respondent to the appeal brought by the Director of the Complaints Unit of the New South Wales Department of Health. In the cross-appeal, he is the cross-appellant. The proceedings arise out of a decision of the Tribunal given by Judge Wall, a Deputy Chairperson, on 7 September 1989. By that decision, certain preliminary questions, which had been isolated by the parties, were answered. The purpose of the appeal and cross-appeal was to challenge the decision of the Tribunal on those questions. Under s32U of the Medical Practitioners Act 1938 (the Act) an appeal may be brought with respect to a point of law in a decision of the Tribunal "during an inquiry conducted by the Tribunal". By virtue of s32U(6), if such an appeal is taken, and an enquiry conducted by the Tribunal has not been completed, the inquiry may not continue until the appeal has been disposed of. Because the Tribunal has set aside several weeks, starting in November 1989, for the determination of the complaints against Dr McBride, and because it is in the public interest and the interest of Dr McBride that the complaints should be promptly determined, the Court expedited the hearing of the appeal and cross-appeal. In order to lift the bar imposed by s32U(6), it is necessary for the Court to "dispose of" the appeal and cross-appeal.

Tribunal decides preliminary questions of law As recorded in the reasons for decision of the Tribunal, it is conducting an inquiry into some sixteen complaints against Dr McBride. Before evidence in support of the complaints was adduced, the Tribunal was requested to give a decision with respect to three preliminary questions on points of law. Pursuant to s32T(1) of the Act, the decision of the Chairperson, or a Deputy Chairperson on any question of law arising during an inquiry is the decision of the Tribunal for the purposes of the inquiry.

The Tribunal records that, when the preliminary questions were posed for decision, it was anticipated that the hearing of the inquiry would extend over many weeks. The complainant's case alone would involve the calling of approximately forty witnesses. It was for this reason, and at the request of the parties, that the Tribunal agreed to give a decision on the points of law framed by them. One of the objects of adopting this procedure was to permit Dr McBride, as the person against whom the complaints were made, or the appellant, as the complainant, to appeal to the Supreme Court against such decision. The Tribunal considered that the approach of the parties to obtain "definitive rulings of the applicable law" was sensible in the circumstances. By s320(3) of the Act, the Tribunal, in conducting an inquiry may "conduct the proceedings as it thinks fit". The power of the Tribunal to isolate preliminary questions of law and to determine them in advance of the hearing before evidence was adduced, was not questioned either by Dr McBride or the complainant. We shall assume that such a power exists.

The first of the three questions posed for the decision of the Tribunal was related to certain of the complaints against Dr McBride. For present purposes it is not necessary to detail those complaints. The other questions were of general application. The questions were:

(1) Whether complaints 1, 7 and 16 ought to be struck out upon the grounds that the particulars alleged thereunder, if proved, are incapable of amounting to professional misconduct or misconduct in a professional respect;

URJ WALTON v McBRIDE (Kirby P, Priestley JA and Hope AJA) 3

(2) Whether the matters alleged against the respondent having occurred prior to 1 October 1987, the Tribunal should apply;

(a) the test of professional misconduct as defined by the amendments which commenced on that date, or

(b) the test of misconduct in a professional respect which was applicable prior to those amendments;

(3) If yes to 2(a) and no to 2(b), then whether, notwithstanding those amendments, it is still necessary in order to ground a finding of professional misconduct, that the practitioner's conduct be in such breach of standards as would reasonably incur the strong reprobation of fellow practitioners of good repute and competence.

Before the Tribunal, the complainant submitted that question (1) was not a matter which could be determined in the absence of evidence. It was, therefore, not a matter for preliminary determination. After consideration of the particulars and the arguments of the parties, the Tribunal concluded that the complaints specified did not clearly indicate the true nature of the case intended to be conducted by the complainant. However, it decided that the application to strike out complaints 1, 7 and 16 should be refused.

As to question 2, the Tribunal decided that it should give an answer "yes" to question 2(a) and "no" to question 2(b).

In answer to question 3, the Tribunal concluded: "The new definition in s27(1)(a) of the Act introduces for consideration a wider class of conduct than was the case before the 1987 amendments and such matters as lack of adequate knowledge, skill, care and judgment may amount to professional misconduct. They will only constitute 'professional misconduct" if the conduct incurs the strong reprobation of medical peers in accordance with the formulation propounded in Qidwai v Brown (1984) 1 NSWLR 100 at 100, 101, 102 and 105."

Appeal and cross-appeal to the Court of Appeal It was against the conclusion in answer to question 3 that the complainant has appealed to this Court. The complainant had succeeded on questions | and 2 with the arguments she had advanced. But, put very shortly, she asserted that the amendments to the Act, the course of re-expression of the relevant "misconduct", the redefinition of the matters that could amount to "professional misconduct" as well as the wider range of sanctions available to the Tribunal all point to the adoption by Parliament of a new standard which does not necessitate the establishment of that "strong reprobation" which was stated by this Court in Qidwai in the context of the earlier statutory provisions.

Dr McBride, on the other hand, supported the Tribunal's determination on question 3. By his cross-appeal, he did not challenge the answer given by the Tribunal to question 1. But he did appeal from the decision of the Tribunal that it should apply the test of "professional misconduct" as introduced by the amendments to the Medical Practitioners Act which commenced on | October 1987 to the matters alleged against the cross-appellant which occurred prior to 1 October 1987. According to Dr McBride, the Tribunal erred in determining that it should not-apply the test of "misconduct in a professional respect" which was applicable at the time to the conduct complained of prior to 1 October 1987 (when the amendments to the Act came in force).

It was common ground that some of the conduct of Dr McBride, the subject of the complaints before the Tribunal, occurred before 1 October 1987. Some occurred after that date. The complaints themselves were made on 19 June 1989, long after the amendments introduced by the Medical Practitioners (Amendment) Act 1987 had come into force.

At the outset of the hearing of the appeal, the Court raised with the parties the timeliness of the appeal. In favour of determining the appeal immediately, the complainant appellant urged a number of arguments upon the Court:

(1) The legislation specifically envisages an interlocutory appeal by the terms of s32U(S) of the Act. It may be inferred that such an unusual facility (with no requirement of leave) was provided by Parliament precisely to deal with a case such as the present where the Tribunal had made a decision with respect to points of law during an inquiry which was considered by either or both parties to the inquiry to be of sufficient importance to warrant the expense, delay and inconvenience of an immediate appeal;

(2) The preliminary determination of the standard to be applied for the proof of "professional misconduct" would possibly affect evidence to be called and probably affect the examination and cross-examination of witnesses, including expert witnesses adduced to express opinions on the matters complained of from the viewpoint of the "medical peers" of Dr McBride; and

(3) The legislative history of provisions dealing with professional misconduct, the new facilities provided under the amending Act of 1987 for dealing with persons against whom an order was made and the Second Reading Speech of the Minister introducing the amendments all suggested (so the argument ran) that the Tribunal had made an error of law in deciding that the high standard of the Qidwai test was still applicable. To prevent this error from permeating the approach of the Tribunal throughout its extended hearing, this Court should now play its part to correct the error, give guidance to the Tribunal and save any risk that the proceedings before the Tribunal would miscarry.

The appeal is not timely in advance of the evidence

The Court has given consideration to these arguments. However, it considers that an appeal from the decision of the Tribunal on question 3 is not timely. (1) Although it is true that by s32U(5) an appeal "may be made" during an inquiry, the section says nothing concerning what the Court, receiving the appeal, must do. It would be unthinkable that Parliament should require the Court to determine the appeal, when the Court did not consider that it was in an appropriate, or the best, position to do so because the appeal was premature.

(2) Experience teaches that the giving of meaning to words in a statute is best accomplished when there is a thorough understanding (and if possible clear findings) of the pertinent facts. Facts help a court to clothe the words of a statute with meaning. They help a court to test available options where meaning is ambiguous. They provide concrete circumstances from which to spell out the operation of the statutory language. Nowadays, the task of statutory construction is rarely, if ever, confined to providing meaning to the words of legislation read in isolation. The meaning is given in the context. An understanding of the context is often sharpened by the alternative operations of the words of the statute upon actual fact situations proved. This is a reason of principle which would suggest, as much for the Tribunal as for this Court, that preliminary determinations of the meaning of "professional misconduct" in the Act would be better approached when the primary facts are proved and found than in advance of such proof and findings. It is necessary, of course, to have a preliminary working hypothesis concerning the meaning of the applicable statutory formula. But the final determination of that meaning is more likely to emerge, with accuracy, from the final decisions of the Tribunal on the facts than in advance of them. Only then will the operation of the Act in its context, and for the purposes for which it has been enacted, and amended, be clear.

URJ WALTON v McBRIDE (Kirby P, Priestley JA and Hope AJA) 5

(3) If the foregoing applies to the task of statutory interpretation, as a matter of general principle, the arguments are especially appropriate to the task of construction in the present case. Parliament has adopted a changed formula for the relevant "misconduct". It has replaced the formula "misconduct in a professional respect" which existed in the previous provisions of s27(1)(c) of the Act by the briefer phrase "professional misconduct" as it now appears in s28(1)(d) of the Act as amended. Moreover, it has provided an inclusive definition in s27(1) of the Act as amended which, arguably, extends the concept beyond conduct embraced by the previous expression, as it had been elaborated in the courts. Some mention was made of the history and potential of the relevant amendments in the decision of this Court in Pillai v Messiter (No 2), Court of Appeal, unreported, 24 May 1989; (1989) NSWJB 93 to which the Tribunal correctly drew attention. For present purposes it is enough to say that the differences between the two expressions are subtle. They involve nuances of language. The differences do not purport to be drastic for the word "misconduct" remains with the consequence to which the Court drew attention in Pillai v Messiter (No 2). It is more likely that this Court could usefully refine the nuances of meaning, if that be necessary, when it has concrete facts and definite findings of fact than in circumstances where it must perform its task in advance of the facts and by hypothesising upon what might or might not be proved;

(4) In any case, as the appellant properly conceded, it will be necessary, upon the Tribunal's present determination, for the complainant in the Tribunal to place before it all relevant evidence and admissible opinion upon the basis of which the "higher" standard expressed in Qidwai can be met. If that "higher" standard is met by the evidence, a fortiori, the "lower" standard urged by the appellant will be satisfied. Most of the facts will have to be proved irrespective of the test to be applied. It will then be the task of the Tribunal in the first instance (and this Court if there is an appeal) to decide whether or not those facts, or any of them, reach the tests of "misconduct" envisaged by the Act. As to opinion evidence of the "medical peers" of Dr McBride, it was accepted by the appellant that opinions would be necessary, whatever was the meaning of "professional misconduct". Those opinions will be on the record. If either party is dissatisfied with the conclusions drawn from them by the Tribunal, that is the time when an appeal may properly be brought. At that time, but not before, the Court would be in a position to formulate, by reference to the evidence and findings, expressions of the appropriate test of misconduct be applied

(6) There is a final consideration. It is possible, when all of the evidence is adduced before the Tribunal and it reaches and expresses its conclusion, that the parties will be content with it. They will not then need to appeal. This Court should conserve its intervention in the functions of the Tribunal to cases where it is necessary and useful. There is little doubt that a concrete case raising the present issue will present itself before long. An attempt was made to do so in Pillai v Messiter (No 2). Experience also teaches that where a decision is vital to the interests of the parties, the arguments tend to be refined and the issues sharpened. This, in turn, assists the Court in the performance of its function.

If it were possible to stand over the appeal to the conclusion of the hearing in the Tribunal, the Court might have considered that course, consistent with the conclusions stated above. However, as that course could have the effect under s32U(6) of the Act, of preventing the completion of the inquiry before the Tribunal, it will be necessary to dismiss the appeal. As will be plain from these reasons, that dismissal will be without prejudice to the right of the complainant

at a later stage, if still discontented with the decision of the Tribunal, to appeal when the issue is ripe for the Court's decision. Nor should the Tribunal feel constrained, by its decision upon question 3 from reconsidering at the end of the evidence and in the light of its findings, the answer to the preliminary question which it has given. At that stage, the Tribunal might feel (as this Court now does) that it is in a better position to give meaning to the statutory language than it is in advance of the evidence and the findings upon it.

The cross-appellant (Dr McBride) at first proposed that the Court should similarly postpone a decision upon the issue raised by the cross-appeal. It was suggested that the Court would be in a better position to determine which, if any, statutory definition of "misconduct" applied when the facts were found. For a number of reasons, this would be neither appropriate nor satisfactory.

The issue raised by the cross-appeal is simply one of determining whether the amendments introduced by the Medical Practitioners (Amendment) Act 1987, and the new definition of "professional misconduct" apply to alleged activities of Dr McBride prior to 1 October 1987 when the amendments came into force. As has been stated, some (but not all) of the conduct complained of occurred before that date. The determination of this question is purely one of law. It cannot be affected by factual findings.

There are, as well, practical reasons for determining whether the Tribunal has erred, as the cross-appellant alleges. The form of the complaints before the Tribunal have been based upon the decision of the Tribunal on this point. It is highly desirable that the Tribunal should act upon a complaint in proper form. Furthermore, whatever the actual content given to the phrase "professional misconduct" it is virtually essential that the Tribunal should have before it a clear understanding of the applicable statutory criterion which it has to apply. If for any reason a different statutory test were to be applied to the conduct complained of before 1 October 1987, it is highly desirable that the Tribunal should be aware of this before it embarks upon the lengthy hearing that lies ahead of it. It was for these reasons that the Court determined that the cross-appeal should proceed forthwith.

The primary submission for Dr McBride in the cross-appeal was that it would be contrary to principle for the Act to be construed to apply a new and arguably "more stringent" criterion of "professional misconduct" to conduct which preceded the amendments which introduced that new criterion. Of course, Dr McBride's primary submission was that the Tribunal was correct in determining that there was no relevant change in the standard applicable and that Qidwai still expressed that standard, as much after the 1987 amendments as before. But conceding, of necessity, that there had been a change of statutory language and that this and other indicia of the amendments might suggest an "ever so slight" difference in the test to be applied, counsel for Dr McBride urged that the Court should safeguard him from such a consequence. This it could do by making it plain that, at least in respect of conduct before 1 October 1987, the standard to be applied by the Tribunal in deciding whether he had been guilty of "professional misconduct" was the standard which at that time obtained, and not any more stringent standard later adopted. Otherwise, it was argued, his rights and liabilities would be affected in a significant way by a change of the law. The amendments to the Act should not be so construed but should be given meaning which was prospective only and therefore avoided the attachment of new legal consequences to facts or events which had occurred before the commencement of

URJ WALTON v McBRIDE (Kirby P, Priestley JA and Hope AJA) 7

the amendments. Reliance was placed upon Maxwell v Murphy (1957) 96 CLR 261, 267; Fisher v Hebburn Ltd (1960) 105 CLR 188, 194 and Geraldton Building Co Pty Ltd v May (1977) 13 ALR 17.

There are a number of answers to this submission which can be given in order to reject it.

(1) Although it is true that the determination of professional misconduct can have serious consequences for a medical practitioner such as Dr McBride, that is not (as the Court has repeatedly stressed in this and other like contexts) the purpose of the Act. That purpose is the protection of the public. It is that objective which must determine, where there is ambiguity, the construction to be given to the Act. It may be arguable that a construction should not be adopted which could have serious and deleterious consequences for a person affected, if some other construction is available. However, this does not necessarily follow if the purpose of the statute is the protection of the public from medical practitioners, found by the current standard, to be properly the subject of one of the many orders that can be made under the Act. Those orders, by s32R of the Act, now extend far beyond an order directing that the person's name be removed from the register. Such an order may still be made under s32R(1)(g)(ii). However, a wide range of other sanctions is now available to the Tribunal. It can order that a person seek medical or psychiatric treatment or counselling (s32R(1)(b)). It can direct that conditions related to the person's practice be imposed (s32R(1)(c)). It can order that the person complete specified educational courses (s32R(1)(d)). It can order that the person report on his or her practice to persons specified (s32R(1)(e)). It can order that the person seek and take advice on the management of the practice (s32R(1)(f)). It can order suspension of the person from practising (s32R(1)(g)). This wide range of provisions has been enacted for a purpose. It is to enable the Tribunal to fashion an order appropriate to the facts found including, where relevant, where the subject matter of the complaint relates to alleged "professional misconduct". It would be curious if, despite a need for the above supervisory arrangements designed for the protection of the public, Parliament were to countenance the continued practice of a person in need of such attention, simply because to so order would amount, as it is said, to the retrospective operation of a new standard. The wide range of orders available to the Tribunal emphasises the fact that the Act is designed for the protection of the public.

(2) Many cases draw a distinction which is pertinent to the present case. It is the distinction between legislation which has a retrospective operation and legislation which affixes present and future consequences to past events. Particularly in cases where present fitness to enjoy professional or trade privileges are concerned, it is not at all unusual. for amendments adopting more rigorous standards to apply to past conduct occurring before such standards were adopted. See eg R v Vine (1875) LR 10 QB 195; In re a Solicitor's Clerk [1957] 1 WLR 1219; Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856; R v Given; ex parte Builders Registration Board of Queensland [1985] 2 Qd R 32; Nicholas v Commissioner for Corporate Affairs (Victoria) (1987) 5 ACLC 673 (FCV); (1987) 5 ACLC 896 (HCA) and Commissioner for Corporate Affairs v X and Y (1987) VR 460. The distinction drawn in these cases was well expressed by Gobbo J in Geschke (above, 860) in these words: "...the presumption against retrospective operation does not direct itself to legislation which merely uses past acts as a foundation for future action. In one sense such legislation may appear to attach new consequences to past acts but I am of the

opinion that the type of consequence envisaged in the judgment in Maxwell v Murphy (1957) 96 CLR 261 was one where, for example, a new disability was created that prevented further enjoyment of an existing or accrued right. In no meaningful sense was the trader here the holder of an accrued right to trade without risk of future restraint based on past conduct.... I am of the opinion therefore that the principle against retrospective operation of a statute has no application to the present case."

The same observations apply to the characterisation of the conduct of Dr McBride complained of in the present case. It was put for him that all of the above cited cases could be distinguished upon the basis that the subject conduct involved was always wrongful and the amendment merely effected consequential relief. This analysis is not supported by the detail of the cases. In any event "professional misconduct', variously described, has always been wrongful in the case of a registered medical practitioner. All that the successive statutory amendments have done has been to give new and arguably differing content to the meaning of the expression.

(3) The Act must be given full force and effect according to its terms. It provides jurisdiction to the Tribunal, relevantly, in respect of complaints made that a registered medical practitioner has been guilty of professional misconduct (s28(1)(d)). That phrase is defined in the Act. Accordingly, on its face, the Act applies in respect of complaints now made and requires the Tribunal to determine those complaints by reference to the current definition. To disturb that ordinary interpretation of the Act, Dr McBride must invoke a presumption against "retrospective operation". But quite apart from the foregoing reasons why that presumption is inappropriate in the context of this Act the presumption is in any case inapplicable where the legislation evinces a contrary intention. There are a number of indications that such is the case in the present Act. The clearest of these is provided by the way in which the Act deals with matters which were before the Investigating Committee but not completed when the 1987 amendments came into force. By CL9 of Schedule 4 to the Medical Practitioners (Amendment) Act 1987 it is provided that such a complaint is to be "deemed to be a complaint made to the new Board under s28 of the Principal Act as amended by this Act". It is thereafter to be "dealt with accordingly". This clearly indicates that Parliament envisaged that the new provisions, definitions and sanctions afforded by the amendments to the Act should be applied in respect of complaints which had already commenced but had not been concluded under the former provisions. It would be curious indeed if such a case were to attract the new provisions, definitions and sanctions but a complaint not yet lodged were not to do so. The transitional provisions plainly indicate Parliament's intention to apply to all complaints after the 1987 amendments came into force, the terms of the Act as then amended.

(4) Finally, there is a crucial reason for adopting this construction. By Schedule 2, CL11 the former provisions of s27-32A of the Act were repealed and omitted. New provisions were inserted including s27(1) with its definition of "professional misconduct" and s28(1)(d) with its provision for a complaint on the ground that a practitioner "has been guilty of professional misconduct" as so defined. The practitioner could not, therefore, after repeal, be made the subject of a complaint with respect to "misconduct in a professional respect". That previous provision of the Act is now repealed. Yet the practitioner could not be judged by reference to that expression under a complaint of "professional misconduct" pursuant to the Act as amended in 1987. This is because that phrase attracts a

URJ WALTON v McBRIDE (Kirby P, Priestley JA and Hope AJA) 9

particular definition, elaborated in s27(1). Therefore, the consequence of the arguments for Dr McBride would be that the repeal of the former provisions would remove any basis in the Tribunal for dealing with complaints about conduct which occurred before 1 October 1987. Given that the purpose of the Act is the protection of the public, such an amnesty is not to be attributed to Parliament. It was not clearly stated in the legislation. It was not expressed by the Minister introducing the legislation. The Act should not be interpreted in such a way for it would strike at the achievement of its obvious purposes. It was argued that s30(1) of the Interpretation Act 1987 would preserve, notwithstanding the repeal of the previous statutory provisions, the operation of the Act as it then stood on "anything duly suffered, done or commenced under the Act" and any "right, privilege, obligation or liability acquired, accrued or incurred under the Act". However, it is not necessary to consider that round-about way of maintaining in force provisions which have been clearly repealed. By the transitional provisions in Schedule 4, Parliament made clear its purpose to transfer pending complaints so that they would be dealt with under the Act, as amended. The construction urged for Dr McBride postulates a lacuna in respect of complaints not pending but relating to pre-amendment conduct. Such a gap in the legislation is not to be imputed to Parliament. It can be avoided entirely if the Act is interpreted as operating in its terms, attaching its consequences for the protection of the public to the conduct of the registered medical practitioner concerned, whether that conduct occurred before or after the amendments. There is no difficulty in so construing the Act. To do so is consistent with the achievement of its objects. It is consonant with long established legal authority dealing with analogous statutory provisions.

The result of the foregoing analysis is that there is no substance in the cross-appeal. The Tribunal correctly answered the two parts of the preliminary question number 2. It is desirable that the Court should affirm its decision in that regard.

The orders which the Court therefore makes are: (1) Appeal dismissed as not timely; (2) Cross-appeal dismissed; and (3) The costs of the proceedings in the Court of Appeal to be costs in the proceedings before the Tribunal.

Counsel for the Appellant: J Basten Solicitor for the Appellant: HK Roberts Crown solicitor Counsel for the Respondent: JR Sackar QC