PILLAI v MESSITER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MCHUGH and CLARKE JJA, ROGERS AJA 28 July 1988 [1988] NSWCA 114 McHugh JA The question in this motion is whether the appeal is governed by s32U of the Medical Practitioners Act 1938, and if so, whether the grounds of appeal must be confined to questions of law. The appellant has appealed against an order of the Medical Tribunal that his name be removed from the Register of Medical Practitioners. The Tribunal is constituted under s32M of the Medical Practitioners Act 1938. Grounds 2, 3 and 4 of the Notice of Appeal do not raise any question of law. The respondent, the claimant in the motion, contends that they are not relevant grounds of appeal. The appellant replies that the appeal is not governed by s32U of the Act but by s29(4) of the Medical Practitioners Act, as it was in force immediately prior to the commencement of the Medical Practitioners (Amendment) Act 1987 on 1 October of that year. S29(4) provided that an appeal by a medical practitioner from a finding of guilt should be by way of rehearing. If the appeal is governed by s29(4), Grounds 2, 3 and 4 of the grounds of appeal are proper grounds. So the question is: is the case governed by s29, which is now repealed, or by s32U. The conduct which gave rise to the complaint against the appellant occurred between 30 June 1986 and 7 July 1986. A complaint against him was lodged on 22 April 1987. The complaint contained three particulars. On 4 September 1987 the investigating committee which heard the complaint referred it to the Disciplinary Tribunal. Subsequently the Medical Practitioners (Amendment) Act 1987 was assented to in June of 1987 and the relevant provision commenced on 1 October 1987. That Act made substantial changes to the law dealing with complaints against medical practitioners. One of the amendments was s32 which provided that the Secretary of the Medical Board could refer a complaint to the Tribunal notwithstanding any prior action taken by the Secretary or the Board. Probably relying on that provision, the respondent lodged a new complaint against the appellant on 30 November 1987. That complaint contained three particulars, two of which were identical with those contained in the complaint lodged on 22 April 1987 but the third of which was different. The appellant nevertheless maintains that because the conduct which gave rise to the complaint occurred before the enactment of the 1987 legislation and because the original complaint was issued before the commencement of that legislation, this appeal is governed by the legislation immediately in force prior to 1 October 1987. This submission makes it necessary to examine the provisions of the Medical Practitioners Act in force before 1 October 1987 and the subsequent changes. The Medical Practitioners Act 1938-1987 provided that complaints against medical practitioners be made by an investigating committee (see s27). The investigating committee could dismiss a complaint or in some cases deal with it itself or if it was satisfied that a prima facie case of sufficient seriousness was 2 UNREPORTED JUDGMENTS made out, could refer the complaint to the Disciplinary Tribunal. (See s27(3)). Where the Disciplinary Tribunal found a matter of complaint proved, it was empowered to make various orders against the medical practitioner, including an order removing his name from the register (see s29(1)). $29(4) then provided: "(4)There shall be a right of appeal to the Supreme Court - (a) by a registered medical practitioner or former registered medical practitioner - from an adjudgment of guilt or any other finding, or from an order, made with respect to him pursuant to subs(1) or subs(2B); or (b) by the person who made a complaint - from any finding, or from an order, made pursuant to subs(1) by the disciplinary tribunal in relation to the complaint, but only - (i) upon a point of law; or (ii) with respect to any penalty imposed, and on any such appeal the court may take such order as it thinks proper, having regard to the merits of the case and the public welfare. An appeal under paragraph (a) shall be dealt with by way of rehearing. Without affecting the generality of the foregoing provisions of this subsection, the Court may make any order which the disciplinary tribunal might have made in the first instance under subs(1). The provisions of s28(6A) shall, in accordance with rules of court, apply, mutatis mutandis, to and in respect of any such appeal." The first thing to be noted about s29(4) is that it was an appeal from an order made pursuant to s29(1). That is to say, the appeal was brought and could only be brought from an order of the Disciplinary Tribunal. The present appeal, however, is not from any order of the Disciplinary Tribunal. It is an appeal from an order of the Medical Tribunal constituted under s32M of the Act. An appeal from an order of the Medical Tribunal can only be made under s32U which was inserted by the amending legislation in 1987. That section provides: "32U. (1)A person about whom a complaint is referred to the Tribunal under s31, s32 or s32H, or the complainant may appeal to the Supreme Court against (a) a decision of the Tribunal with respect to a point of law; or (b) the exercise of any power under s32R by the Tribunal with the prescribed time. (2)The Supreme Court may stay any order made by the Tribunal, on such terms as the Court sees fit, until such time as the Court determines an appeal made under this section. (3)In determining an appeal under this section, the Supreme Court may - (a) dismiss the appeal; or (b) make such order as it thinks proper having regard to the merits of the case and the public welfare and, in so doing, may exercise any one or more of the powers of the Tribunal under s32R. (4) In any case where the Supreme Court dismisses an appeal against an order directing that the name of a registered medical practitioner be removed from the Register or a person has ceased to be registered - (a) the Court may by its order fix a time after which the person whose name is removed from the Register, or the person who has ceased to be registered, may apply to be registered; and URJ PILLAI v MESSITER (McHugh JA) 3 (b) where a time has been so fixed, the person is not entitled to be registered before that time notwithstanding s15, s16, s17(c) or s17(d). (5)An appeal under this section with respect to a point of law may be made during an inquiry conducted by the Tribunal or within the prescribed time. (6)If an appeal with respect to a point of law is made under this section and an inquiry conducted by the Tribunal has not been completed - (a) the inquiry before the Tribunal shall not continue until the appeal has been disposed of; and (b) the Tribunal, on recommencing the inquiry, shall not make any decision that is inconsistent with the Supreme Court's determination with respect to the point of law." It is probably enough to say in answer to the appellant's claim that as the appeal is from the order of the Medical Tribunal, the right of appeal under s29 is totally irrelevant. Moreover, because the order which the Medical Tribunal made was based on the complaint filed on 30 November 1987, an appeal against that order can only be governed by s32U. However, Mr Sackar, for the appellant, contends that in some way, which he had difficulty in pinning down, the complaint which was referred to the investigating committee on 4 September 1987, was heard by the Medical Tribunal. It may well be that the complaint did go to that Tribunal because by reason of Schedule 4 paragraph 9, sub-paragraph 3 of the amending legislation, any uncompleted inquiry that was being conducted by the Disciplinary Tribunal immediately before the commencement of Schedule 2(1) was terminated on and from that commencement. The complaint was deemed to have been referred to the Tribunal under s31 of the Principal Act as amended by the 1987 Act, and was to be dealt with by way of rehearing. After the investigating committee referred the complaint of 22 April 1987 to the Disciplinary Tribunal on 4 September 1987 there was, at the commencement of the amending Act on 1 October 1987, an uncompleted inquiry before the Disciplinary Tribunal. Accordingly, on 1 October 1987 the original complaint was deemed to have been referred to the Medical Tribunal under s31 of the principal Act. However, whether or not that is so, the respondent in exercise of his rights under s32 of the new Act filed a fresh complaint on 30 November 1987. That is the complaint which is the source of the orders, the subject of this appeal. Accordingly, there is no question of the new repealed s29 governing the present case. Mr Sackar sought to rely on the well known decision of the Privy Council in Colonial Sugar Refining Company v Irving [1905] AC 369, the decision in Continental Liqueurs Ltd v G F Heublein (1959) 103 CLR 422, and the principle enshrined in s30 of the Interpretation Act 1987. However, sections such as s30 which preserve accrued rights are always subject to any contrary legislative intention. In my view the manifest intention of the amending legislation in 1967 was to require a case such as the present to be dealt with under s32U and not otherwise. In my view the Notice of Motion should be upheld in so far as the appellant relies on the repealed s29. However, there remains the further question as to whether the grounds of appeal may nevertheless be supported under s32U. I postpone consideration of that matter until the other members of the Court have given their reasons. 4 UNREPORTED JUDGMENTS Clarke JA I agree that the motion should be upheld. I would only add the observation that proceedings which led to the order under appeal were instituted after the amendment in 1987 to the Medical Practitioners Act 1938. In those circumstances the hearing of the complaint before the Investigating Committee ceased to have any relevance and the whole of the present proceedings and the rights of appeal from the orders made fall to be determined in accordance with the Act as it was after the 1987 amendment. Rogers AJA I agree. I would prefer to look at the matter in the following way.At the time of coming into operation of the Medical Practitioners (Amendment) Act 1987 there was existent a complaint which the Investigating Committee had referred to the Disciplinary Tribunal pursuant to the provisions of s27A(3)(c) of the 1938 Act. It was the argument of Mr Sackar of Queens Counsel, that the operation of s8 of the Interpretation Act 1987 worked to preserve the necessity for a hearing of that referral taking place and worked to preserve such rights of appeal as might arise pursuant to s29 of the 1938 Act. As has been pointed out, s8 of the Interpretation Act yields to a contrary intention. One then looks at Schedule 4 of the 1987 Act which provides for savings and transitional provisions. CL9 of the Schedule is pregnant with the expressed legislative intention that anything which at that point of time had arisen under the Principal Act and remained uncompleted should thereupon come to an end and be terminated and thereafter any outstanding matter should be dealt with in accordance with the provision of the Act as restructured. As Mr Sackar conceded, it is possible to read CL9(3) of the Schedule as referring to the matter here in issue: that is to say, as an Uncompleted inquiry. It is, in my view, giving effect to the legislative purpose with which the Schedule is pregnant, to construe sub-cl 3 as Presently applicable. Reading the Paragraph this way, it seems to me inevitable that it should be held that the present appeal has to be determined in accordance with the provisions of s32U. What the precise consequence of that finding is in relation to the Motion is a subject that may need to be determined once argument is heard on the proper operation of s32U(1)(b). The Notice of Motion should be upheld in so far as the appellant relies on the repealed s29. COUNSEL: (Claimant): J R SACKAR QC/G REYNOLDS (Opponent): D G LETCHER QC/J BASTEN SOLICITORS: (Claimant): BLAKE DAWSON WALDRON (Opponent): H K ROBERTS