Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582 (28 August 1958)

HIGH COURT OF AUSTRALIA

THE MEDICAL BOARD OF QUEENSLAND v. BYRNE [1958] HCA 40; (1958) 100 CLR 582

Medical Practitioners (Q.)

High Court of Australia
McTiernan(1), Fullagar(2) and Taylor(2) JJ.

CATCHWORDS

Medical Practitioners (Q.) - Medical practitioner - Suspension - Convicted of non-indictable offence - Contravening a Repatriation Regulation by presenting to the Deputy Commissioner of Repatriation a document &which was false in stating that he had attended certain patients on specified dates - Medical Board of opinion that he should be subjected to disciplinary punishment - Board proceeding to have him charged before Medical Assessment Tribunal - Practitioner not given an opportunity to be heard by the board before it formed that opinion - Whether Assessment Tribunal had jurisdiction to hear charge - Effect of the opinion of the board on the hearing of the charge by the tribunal - Punishment - Matters that may be taken into consideration - Fact that practitioner knew the statement to be false - Knowledge of falsity not an element of the offence - No allegation or charge of fraud - Case stated - The Medical Acts 1939 to 1955 (Q.), ss. 37 (1) (iii), 37A, 41 (1), 43 (1).

HEARING

Brisbane, 1958, June 24;
Sydney, 1958, August 28. 28:8:1958
APPEAL from the Supreme Court of Queensland.

DECISION

August 28.
The following written judgments were delivered:-
McTIERNAN J. The Medical Board of Queensland is appointed under the laws of Medical Assessment Tribunal is established. It is constituted by a judge of the Supreme Court. One of the functions of the board is to institute proceedings and charges before the tribunal. Section 37(1) defines a number of cases in which the board may proceed to have a medical practitioner charged before the tribunal. The sub-section provides that in those cases the board shall have the conduct of the charge as a prosecutor. It is an express condition of the power of the board to proceed against a medical practitioner under s. 37(1) if it is of opinion that he has fallen within one of the cases therein defined. This appeal is concerned with the case, included in cl. (iii) of the sub-section, of a medical practitioner convicted in Queensland of an offence that is not indictable. A medical practitioner does not fall within that case unless in the opinion of the board he should be subjected to disciplinary punishment at the hands of the tribunal for the offence of which he has been convicted. Section 41(1) gives power to the tribunal to impose such punishment. That sub-section provides that if the tribunal finds any medical practitioner guilty of any charge made against him under The Medical Acts it may, according as it shall deem just under the circumstances, erase his name from the register, suspend his registration or order him to pay a pecuniary penalty. (at p588)

2. The Medical Board charged the respondent, a medical practitioner, before the tribunal to the effect that he had been convicted in petty sessions at Brisbane of four offences and gave the particulars thereof. They were offences against the Repatriation Regulations committed by the respondent in the course of his practice. As they were non-indictable offences, the board averred in the charges that in its opinion the respondent should be subjected to disciplinary punishment under The Medical Acts for the offences. (at p589)

3. The tribunal, which was constituted by Philp J., found the respondent guilty of the charge made against him in respect of each offence and suspended his registration as a medical practitioner for three years from the day on which the decision was given. (at p589)

4. Section 43(1) provides for an appeal by case stated from a decision of the tribunal. Upon the application of the respondent, Philp J. stated a case in reference to the proceedings. The Full Court of the Supreme Court, in the exercise of the powers contained in s. 45, determined the case stated and ordered the findings of the tribunal and the suspension of the respondent's registration be set aside. (at p589)

5. The question of fundamental importance involved in the appeal arises from the words of s. 37(1)(iii) referring to the opinion of the Medical Board as to an offence which is not indictable. Before the tribunal, an objection to its power to proceed was raised on behalf of the respondent, because he had not been heard or given an opportunity to be heard by the board, on the issue whether the offences of which he had been convicted are deserving of disciplinary punishment. This objection did not extend to any question as to his right to be heard by the board, on the issue whether he had been convicted of the offences or whether they are indictable. It was contended for the respondent that because he had not been heard or given an opportunity to be heard on the former issue, the tribunal had no jurisdiction to hear and determine the charges made against him. Philp J. overruled the objection. (at p589)

6. His Honour found the respondent guilty of the four charges. In finding him guilty, his Honour said: "The evidence placed before me clearly established that the practitioner had been convicted as alleged in each charge and that the board was of the opinion alleged in each charge. I therefore find the practitioner guilty of each of the said charges". (at p589)

7. The learned judge then proceeded to consider the evidence relating to the breaches of the Repatriation Regulations of which the respondent had been convicted in order to determine the punishment which the respondent should receive. As already stated the tribunal ordered that the respondent's registration as a medical practitioner be suspended. (at p589)

8. On the appeal to the Full Court, the majority (Mansfield C.J. and Townley J,) held that the charges preferred before the tribunal were void because the respondent was given no opportunity of being heard by the board on the issue whether he had been convicted of offences for which he should be subjected to disciplinary punishment. Matthews J., the other member of the Full Court, dissented. The judgment of the Full Court set aside the findings of guilt and the order suspending the respondent which were made by the tribunal and in lieu thereof ordered that the appellant be found not guilty on each of the four charges. (at p590)

9. In the face of this difference of judicial opinion it is not easy to decide whether the respondent had a right to be heard by the board before proceeding against him in the tribunal. If the tribunal is bound by the opinion of the board referred to in cl. (iii) of sub-s. (1) of s. 37 so that its only function in a prosecution upon that charge is to decide on the nature and the degree of punishment to impose upon the medical practitioner, there would be much force in the contention that the board is impliedly bound by the words of cl. (iii) to notify the medical practitioner to attend to be heard before he is charged. In my opinion there are strong reasons for denying that the opinion of the board is intended to bind the tribunal to find the medical practitioner guilty. First the terms of s. 37(1) made it prosecutor. It would not be consistent with its functions as prosecutor to find the medical practitioner guilty and then send him before the tribunal for punishment. The only consequence of the opinion of the board, if adverse to the medical practitioner, to which the Act points, is that he is to be charged before the tribunal and that there he is to have a judicial trial. It also follows from the words of cl. (iii) relating to the opinion of the board that the tribunal would not be competent to entertain a charge based upon a conviction for an offence which is not indictable unless the board had arrived at such opinion. (at p590)

10. Secondly, the jurisdiction of the tribunal under s. 41(1) cannot be reduced by the words in cl. (iii) referring to the opinion of the board. There is no room for an implication that those words are restrictive of the jurisdiction of the tribunal under s. 41(1) to adjudicate upon a charge. The opinion of the board is not a finding to which s. 37(1) attaches any consequence other than the conviction of the medical practitioner for the offence to which the opinion refers is good cause for proceeding against him before the tribunal. The tribunal is, in such proceeding, judge and the board is prosecutor. Whether the medical practitioner is guilty of the charge and whether any punishment and to what degree ought to be inflicted upon him are issues which are within the province of the tribunal under s. 41. Philp J. in giving judgment said: "In my view, s. 37(1)(iii) provides for the board to consider whether the practitioner has been convicted of an offence and to form an opinion whether the offence is one for which the practitioner should be subjected to disciplinary punishment. Having formed these opinions in the affirmative the board merely makes a charge. Nothing that the board does in so doing subjects the practitioner to final judgment or punishment and so there is no prima facie obligation on the board to hear the practitioner before arriving at the affirmative opinion and there is nothing in the statute which expressly or impliedly requires such a hearing. The tribunal alone has the power to make the final determination and to punish. When the charge comes before the tribunal the onus is on the board to prove the conviction and to prove that it reached the affirmative opinion". I agree with those observations. For these reasons I think that the answer to the first question in the stated case should be "No". (at p591)

11. It appears from the first passage which is cited above from the judgment of Philp J. on the issue of guilt that he treated the opinion of the board as an ingredient of the charges and being satisfied that the board was of the opinion alleged thereon, proceeded to determine what the punishment should be. As I have already stated, I think that the opinion of the board is not binding on the tribunal on the question whether the medical practitioner should be subjected to disciplinary punishment and that it is an issue as to which the tribunal is free to form its own opinion and on which to act. Perhaps no injustice resulted to the respondent from the view which Philp J. adopted as to the effect of the board's opinion. But as, in my opinion, the view is not strictly in accordance with the intention of s. 37(1), I would answer the second question "Yes". The opinion of the board is, I think, a matter for recital in a charge under cl. (iii), and proof of the opinion is necessary to found the jurisdiction of the tribunal to adjudicate but it is not conclusive on any matter going to the issue of guilt. (at p591)

12. As to question (3). In my opinion the tribunal has ample jurisdiction under s. 41(1) to consider whether the respondent knew that the statements in respect of which he was convicted in petty sessions to be false, even though fraud was not a necessary element of the offences. In regard to the fourth question. As in my opinion the answer which I give to the second question involves that the matter be remitted to the tribunal, I do not think it is necessary to answer that question. (at p591)

13. The foregoing answers appear to me to require that the answer to the fifth question should be that the four charges be remitted to the Medical Assessment Tribunal for a fresh hearing upon the basis that the opinion of the Medical Board of Queensland is neither conclusive nor probative of the guilt of the respondent. (at p592)

14. As the appellant has substantially succeeded, I think that the appeal should be allowed with costs. (at p592)

FULLAGAR AND TAYLOR JJ. On 2nd October 1957, Philp J., sitting as the Medical Assessment Tribunal under the provisions of The Medical Acts 1939 to 1955 (Q.), found the respondent, a medical practitioner, guilty of four charges which had been referred to the tribunal by the appellant, the Medical Board of Queensland. Thereafter, upon the application of the respondent, the tribunal stated a case for the opinion of the Full Court of the Supreme Court of Queensland upon a number of questions including the question whether the tribunal had acted without jurisdiction in hearing and determining the said charges. By a majority the Full Court held that the tribunal had acted within its jurisdiction but for reasons which will appear it was held that it had erred in law in holding the respondent guilty. In the result the Full Court set aside the order of the tribunal and directed that the respondent should be found not guilty on each charge. From this order the present appeal is now brought by special leave. (at p592)

2. The points raised by the appeal are somewhat curious and it is necessary to go at once to the relevant statutory provisions. The Medical Assessment Tribunal is constituted by s. 33 of The Medical Acts "for the better control and discipline of medical practitioners and for the better determination of prescribed matters having a medical element". By s. 34 the tribunal is authorised to hear and determine any charge made against any medical practitioner under the Act, any application which, under the Act, may be made to the tribunal and any other matter or proceeding which, under the Act, may be referred to or heard and determined by the tribunal. Section 35 of the Act, which consists of a number of paragraphs, defines "misconduct in a professional respect". Thereafter s. 37(1) provides as follows:- "If the Board is of opinion that any medical practitioner (including any specialist) - (i) Has had the qualification upon which he relied for registration as a medical practitioner withdrawn or cancelled by the university, college, or other body by which it was conferred, or by the General Council of Medical Education and Registration of the United Kingdom; or (ii) Has had his name erased from the Register maintained by the General Council of Medical Education and Registration of the United Kingdom or from the register of any other body duly authorised to register medical practitioners; or (iii) Has been convicted in Queensland of an indictable offence, or has been convicted in any other part of His Majesty's dominions or elsewhere of an offence which would be indictable if committed in Queensland, or has been convicted in Queensland or in any other part of His Majesty's dominions or elsewhere of any other offence for which in the opinion of the Board he should be subjected to disciplinary punishment under this Act; or (iv) Is guilty of misconduct in a professional respect, it may proceed to have the medical practitioner concerned charged accordingly before the Tribunal and, upon so doing shall have the conduct of the charge as prosecutor: Provided the Tribunal shall not order that the name of any medical practitioner (including any specialist) be erased from the register under paragraph (1) or paragraph (ii) of this sub-section except with respect to a withdrawal or cancellation of a qualification or an erasure of a registration which, if it had occurred in Queensland, would have been an adequate cause for the erasure of the name of the medical practitioner concerned from the register." It will be seen that s. 37(1)(iii) refers to (1) convictions in Queensland of any indictable offence; (2) convictions in any other part of Her Majesty's dominions or elsewhere of an offence which would be indictable if committed in Queensland; and (3) convictions in Queensland or elsewhere of any other offence for which in the opinion of the Board a medical practitioner should be subjected to disciplinary punishment under the Act. Each of the charges against the respondent was concerned with offences in the last category and in the notice which was served upon him the substance of each charge was preceded by a recital that the charge against him was that he had been convicted in Queensland of an offence for which in the opinion of the board he should be "subjected to disciplinary punishment under The Medical Acts aforesaid". Initially, at least, it appears to have been assumed that the concluding provisions of s. 37(1)(iii) confer upon the board a power to make a final and definitive finding that a particular offence is one calling for disciplinary punishment under the Act. On that view, it was said, the opinion of the board, once formed, is not open to question in subsequent proceedings before the tribunal and this circumstance was seized upon by the respondent to found the contention that he should have been given an opportunity of being heard before the board formed its opinion concerning each of his several convictions. To form the opinion which it did without prior notice to the respondent was, it is contended, contrary to natural justice. This argument failed before the tribunal but in the Full Court the learned Chief Justice took the view that in forming its opinion the board "was acting in a judicial capacity" and that "the opinion of the board arrived at in the circumstances disclosed in this case, is a nullity". The same view was taken by Townley J. and in the result it was held that the evidence failed to establish an essential ingredient of each charge, that is, that the board had, in law, formed the necessary opinion. (at p594)

3. Much might be said for such a final conclusion if, upon the true construction of the relevant provisions, the opinion of the board should be regarded as a definite and substantive factor binding upon the tribunal or if, in forming its opinion, the board could be said to be acting in a judicial capacity. It is, however, in its initial stages that the argument advanced by the respondent both here and in the Supreme Court breaks down. In our view the words in s. 37(1)(iii) - "for which in the opinion of the Board he should be subjected to disciplinary punishment under this Act" - merely prescribe a condition to be satisfied before the board proceeds "to have the medical practitioner concerned charged accordingly before the tribunal". 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. Accordingly when such a charge is made it is for the tribunal ultimately to determine whether the conviction is in respect of an offence for which the practitioner should be subjected to disciplinary punishment. (at p594)

4. This is the view to which we think consideration of the general structure of the relevant provisions must lead. But when more particular attention is paid to individual provisions that view is, we think, inescapable. So far no reference has been made to the provisions of s. 37A pursuant to which charges, which are "not sufficiently serious to warrant the Board charging the medical practitioner concerned therewith before the Tribunal", may be prosecuted before the board itself. In such cases the provisions of s. 37A apply. This means of course that the board may itself entertain a charge against a medical practitioner that he has been convicted of an offence for which in the board's opinion he should be subjected to disciplinary punishment. But before dealing with a medical practitioner under this section the board is, by sub-s. (2), required to notify him in writing of its intention so to do and is required to state in the notice (a) the misconduct in a professional respect "or matter of other charge" whereof he is guilty in the opinion of the board; (b) a time not earlier than fourteen days after the date of that notice within which he may make representations in writing to the board, or appear in person and be heard by the board at a place stated in the notice; and (c) that he may elect, in writing given to the board within a time specified, to be dealt with by the tribunal in lieu of the board. By sub-s. (3) the board is required to give due consideration and weight to any representations made to it within the time allowed by the notice and also to hear the medical practitioner if he appears in person before it. Finally by sub-s. (4) he is given a right to elect to be dealt with by the tribunal in lieu of the board. We refer to these provisions because if the argument advanced on behalf of the respondent is correct then in cases where the Medical Board proceeds to deal with a medical practitioner under s. 37A, it would, upon the final hearing, be bound by its previous opinion, formed ex parte, that the offence was one which called for disciplinary action. We think that it is clear that no such result was intended. Sub-section (2) of s. 37A makes express provision both as to the time and form of notice to the medical practitioner and it is, we think, beyond doubt that upon considering any charge after notice all relevant matters must be open for determination by the board. The obvious purpose of s. 37A is to provide for a hearing upon notice and for a determination then of all questions of substance. Similarly, if a medical practitioner exercises his right to elect to be dealt with by the tribunal in lieu of the board the same questions must be open before the tribunal. These considerations can, we think, lead only to the conclusion that, whether a medical practitioner is charged directly before the tribunal or whether the charge comes before the tribunal pursuant to s. 37A(4), all questions of substance must then be open including the question whether any conviction for an offence other than an indictable offence is one which calls for disciplinary punishment. (at p595)

5. In the result, therefore, we are of the opinion that the order of the Full Court should be discharged but in view of the course taken before the Medical Tribunal it would not, we think, be appropriate to direct that the order of that tribunal be restored. No doubt in making the order which it did the tribunal must have reached the conclusion that the respondent's convictions were in respect of offences for which he should be subjected to disciplinary punishment but we think that the matter should be remitted to the Medical Tribunal in order that the respondent may make such further representations to the tribunal on that issue as he desires to advance. (at p595)

6. One other matter remains to be mentioned briefly before parting with the case. Each of the offences of which the respondent had been convicted related to the production to an officer of the Commonwealth of a document containing false particulars. In order to secure a conviction it was, however, unnecessary to establish that the particulars were false to the knowledge of the respondent. But this issue was investigated before the tribunal and it had no doubt that the respondent was fully aware of their falsity and, in assessing the punishment which it awarded, it took this circumstance into consideration. Before us it was urged that this should not have been done and that the tribunal should not have looked beyond the bare fact of the conviction. We think there is no substance in this contention and that it was clearly a matter which could properly be taken into consideration for the purposes of proceedings of this character. (at p596)

ORDER

Appeal allowed. Order of the Full Court discharged. In lieu thereof order that the questions raised by the case stated be answered as follows: (1) No. (2) The Medical Assessment Tribunal erred in holding that it was bound by the opinion of the board formed pursuant to s. 37(1)(iii) of The Medical Acts that the offences for which the respondent had been convicted were offences for which he should be subjected to disciplinary punishment. (3) No. (4) This matter was not argued. (5) In view of the answer to question (2) the orders of the Medical Assessment Tribunal should be set aside and the matters remitted to that tribunal for further consideration.

Order that in accordance with the answer to question (5) the matter be remitted to the Medical Assessment Tribunal for further consideration. The respondent to pay the appellant's costs of and incidental to the appeal.