EDELSTEN v WARD & ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and CLARKE JJA 3 June 1988, 9 June 1988 [1988] NSWCA 40 MEDICAL PRACTITIONERS — misconduct — proceedings before Medical Tribunal — separate decision on complaints — decision on "penalty" stood over for argument — application to restrain Tribunal from proceeding to determination of complaints pending hearing of an appeal on points of law by the Court of Appeal — inconvenience of such a course — whether that course required by Medical practitioners' Act 1938, s32U(6) — held: (1) Inquiry by the Tribunal had not been completed pending determination under s32R; (2) Accordingly, an appeal with respect to a point of law having been made, the inquiry before the Tribunal may not continue until the appeal has been disposed of by force of s32U(6) of the Act. LAW REFORM — medical practitioners — Medical Tribunal — effect of appeal on a point of law where inquiry has not been completed — requirement that inquiry "shall not continue" — inconvenience of such requirement — suggestions by the Court of legislative attention to the provision. Medical Practitioners' Act 1938, s32R, s32T, s32U. Health Legislation (Reasons for Decisions) Amendment Act 1987, s3, Schedule 1. ORDERS 1. Order that David Thomas Richmond and Gordon Messiter be added as appellants to the appeal and opponents to the notice of motion herein. 2. Order that the further proceedings upon the inquiry being conducted by the Medical Tribunal be stayed until the conclusion of the appeal filed by the claimant or further or other order of the Court. 3 Order that the hearing of the appeal be expedited and that it be listed before the Acting Registrar for the purpose of fixing an expedited date in July or August 1989. 4. Order written submissions. 5. Liberty to apply upon two days notice. Kirby P, Samuels and Clarke JJA On 3 June 1988 the Court ordered a stay of proceedings in the Medical Tribunal (the Tribunal) concerning the claimant until the hearing of an appeal by the claimant or further order of the Court. It ordered the expedition of the hearing of the claimant's appeal which was the occasion of the application for the stay. A number of ancillary orders were made. The Court deserved its reasons for these orders. We now state our reasons. Proceedings in the Medical Tribunal The first four opponents are the members of the Medical Tribunal Constituted under the Medical Practitioners Act 1938 (the Act). The Tribunal is conducting an inquiry into certain complaints made against Dr Geoffrey Edelsten, a registered medical practitioner (the claimant). The complaints were made by David Thomas Richmond and Gordon Messiter, whom the Court, pursuant to a motion filed by them, ordered to be added to the proceedings as opponents. The proceedings before the Medical Disciplinary Tribunal, formerly provided for, and later before the Medical Tribunal, were conducted over 36 days between 12 October 1987 and 27 April 1988. Whilst the proceedings were continuing, amendments were introduced to the Act by the Medical Practitioners (Amendment) Act 1987. By those amendments, an incomplete inquiry being conducted by the Medical Disciplinary Tribunal immediately before the 2 UNREPORTED JUDGMENTS commencement of the amending Act was deemed to have been referred to the Medical Tribunal. Nothing turns upon this amendment to the law. No objection was taken to the constitution of the Tribunal or the validity of the proceedings to date. On these see Schedule 4, Paragraph 9(3) of the amending Act. The Tribunal had before it seven complaints in all. The first of these charged that the claimant was not of good character. The others charged, in six identified respects, that he had been guilty of misconduct in a Professional respect, The Tribunal, having concluded its hearing of evidence on the facts relevant to establishing the charges, handed down, on 27 April 1988 a 94 page document titled "Reasons for Decision", In that document, the Tribunal reviewed the complaints, surveyed the evidence called and recorded its findings which were adverse to the claimant. At the close of the reasons for decision, the Tribunal recorded the following conclusion: "At the request of Counsel for the respondent, the Tribunal has deferred Consideration on the exercise of its powers consequent upon adverse findings, until it is further addressed." Without objection, the Court was informed that provision had been made for the proceedings before the Tribunal to be stood over for submissions to be made on the determination that was proper in the light of the stated findings On 6 May 1988, submissions were duly made to the Tribunal. It then reserved its decision to give consideration to the submissions. The proceedings were "adjourned" until 3 June 1988 and the decision of the Tribunal was reserved until that day. Nothing appears in the submissions to the Tribunal concerning any foreshadowed appeal to the Supreme Court with respect to a point of law. No submissions were made to the Tribunal that it should stay its hand until the decision of the Supreme Court on such an appeal. On 2 June 1988 two events occurred. The first was the filing of a notice of appeal from the "decision" of the Tribunal on 27 April 1988. The second was the filing of a notice of motion seeking an order directed to the members of the Tribunal, restraining them from publishing any decision as to the determination to be made in respect of the claimant and from conducting any further inquiry into the complaints made against the claimant, until further order of this Court. Because of the impending announcement of the decision of the Tribunal, the Court returned the motion before it shortly before that announcement was to be made. Upon being served with notice of the motion, the Tribunal, properly, delayed its announcement until the proceedings before the Court were concluded. The Tribunal submitted to the orders of the Court. The complainants were added not only to the motion but also to the appeal, without the objection of the claimant. The Court proceeded to hear the motion as a matter of urgency. The inconvenience of interruptions for interlocutory appeals on the face of things, the notion of halting proceedings in the Tribunal until the Court has dealt with the notice of appeal filed by the claimant appears to be an unattractive course. First, the claimant had made no admission to that effect before the Tribunal but had dealt with the Tribunal on the basis that it would Conclude its inquiry by determining the course it should take under s32R of the Act, having regard to the findings which it had announced that the Complaint against the claimant had been proved, The motion, at the last minute, to restrain the Tribunal from Concluding its function would, in such Circumstances, appear to have little merit. Secondly, the motion would appeal to be specially inappropriate in this case because the course of dividing the hearing of the Complaint and the URJ EDELSTEN v WARD & ORS (Kirby P, Samuels and Clarke JJA) 3 determination of the "Penalty", the Complaints being proved, was adopted at the Specific request of the representatives of the claimant. Had the Tribunal telescoped the two proceedings together, the prospect of the delay now envisaged by the present motion would have been avoided. Thirdly, proceedings such as the present are conducted principally for the protection of the public. There is a public interest in the prompt Conclusion of enquiries by the Tribunal into professional misconduct by a registered medical practitioner. That interest extends to the early Conclusion of such enquiries and the public announcement of the determination considered appropriate in the circumstances. This interest is frustrated by the interruption sought by the claimant to permit an appeal at an interlocutory stage against the findings on the complaint, Any complaint which the claimant has on a point of law could quite readily be combined with an appeal against such findings and any appeal which might be brought against the determination of the Tribunal, disposing of the inquiry, made in the light of such findings, The wide powers conferred upon this Court upon appeal appear to contemplate that the Court can deal finally, as the merits of the case require, and in one sitting, with the objections to the findings of the Tribunal and to its determination. The bifurcation of the appellate process contemplated by the claimant's motion involves not only delay in the finalisation of the inquiry but also substantial public and private costs. These are aust some of the reasons why it would have been difficult for the claimant to have succeeded in his motion, had it not been for the requirements of the Act. Upon the claimant's construction of the Act, an appeal could be brought at any time in the course of the proceedings before the Tribunal. If such proceedings were still on foot, the Tribunal was required by the Act not to continue until the appeal had been disposed of. The prospect of multiple interruptions to proceedings before the Tribunal, theoretically possible upon any ruling on a point of law, including on the admission or rejection of an item of evidence, seemed so inappropriate that only the clearest requirement of the legislature would constrain this Court to so conclude. These remarks take us directly to the procedure for which parliament has provided. New legislative provisions for appeals The new legislative provision for appeals from the Tribunal to the Supreme Court are contained in s32U of the Act. This section is included in a new part which was inserted by the 1987 amending Act. Because the Tribunal includes as its Chairperson a Judge of the District Court, the appeal is assigned to the Court of Appeal. See Supreme Court Act 1970 s48(1)(a)(vii). Relevantly, s32U 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, within 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 doing so, may exercise any one or more of the powers of the Tribunal under s32R. 4 UNREPORTED JUDGMENTS (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." The claimant argued that the inquiry being conducted by the Tribunal had not been "completed" in respect of the complaints against him because there remained to be completed the determination of the Tribunal under s32R of the Act. That section provided that, if the Tribunal finds the subject matter of a complaint made against a person has been proved, it may proceed in one of nine Specific ways, or any combination thereof. Because that determination remained outstanding, the claimant asserted that the Tribunal had not "completed" its inquiry. He had filed an appeal with respect to a point of law against the decision of 27 April 1988. Accordingly, he was entitled, by force of s32U(6)(a) to an order that the Tribunal should not continue until the appeal had been disposed of. It was to reinforce this asserted Statutory right that the claimant moved the Court. The added opponents opposed the provision of the relief sought by the claimant. They referred to the inconvenience which such an interruption would cause. About this contention there was no real debate. The claimant did not contest the inconvenience. He simply relied upon his statutory entitlements, as he asserted them. The added opponents then sought to offer constructions of the Act which would avoid the inconvenience inherent in the claimant's arguments It is trite to say that where a construction of legislation is available which avoids manifest inconvenience it will, other' things being equal, be preferred to one which involves such inconvenience and threatens to make the provision of the Act unworkable, as in circumstances of repetitious appeals, But is such an alternative construction available here? First, the added opponents asserted that the verb "continue" in s32U(6)(a) implied that there was still some task for the Tribunal to conclude. Relevantly, the provision in s32U(6)(b) that "on recommencing the inquiry" the Tribunal "shall not make an determination that is inconsistent" with the Court's determination on the point of law, appears to contemplate that that determination is still of continuing utility to the Tribunal. So, it was argued, the provision is contemplated at an interlocutory stage and not after the conclusion of the Tribunal's decision. The relevant "decision" here was that of 27 April 1988 by which the Tribunal had decided the complaints against the claimant. These arguments about the meaning of s32U(6) are not persuasive. S32U(S) indicates that parliament envisaged, in respect of the proceedings before this Tribunal, that an unusual course would be followed. Instead of requiring, as is normally the case, that any appeal, whether on a point of law or otherwise, should lie only after the final determination of the proceedings in the Tribunal, an exceptional provision has been provided for appeals to be made "during an inquiry". Prima facie, the "inquiry" would continue until the "determination" of which s32R speaks. Until such determination, the inquiry remains on foot. It has "not been completed", Therefore, so long as the claimant's appeal is "with URJ EDELSTEN v WARD & ORS (Kirby P, Samuels and Clarke JJA) 5 respect to a point of law', the preconditions necessary for the statutory injunction against the Tribunal's continuing the inquiry are made out. No submission was put to the Court that the appeal of the claimant was not "with respect to a point of law'. Although some of the appeal grounds in the notice of appeal do not appear to raise points of law properly so called, others clearly do. Cf Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139, 156. For example, the general ground of appeal that the Tribunal erred in law by applying the wrong standard of proof would appear to raise a point of law for the determination of the Court. The Tribunal's approach in this regard is contained in the first pages of its decision. So far as the utility of an interlocutory appeal on such a question is concerned, some usefulness can possibly be perceived in a particular case. If, for example, in respect of all complaints the Tribunal were found to have applied an incorrect burden of proof (a matter which the Court has not yet considered) the reconsideration of the facts according to the correct burden of proof could result, in a given case, in a different conclusion. In that sense, the "determination" of the inquiry under s32R could well be affected by a finding by this Court that an error with respect to a point of law has occurred. The added opponents then objected that the appeal of the claimant was out of time. An appeal under s32U(6) must be made "under this section". By s32U(5) such appeal must be made "during an inquiry conducted by the Tribunal or within the prescribed time". So far as the "prescribed time" is concerned, the prescription is contained in the Government Gazette of 30 September 1987, No. 152. There the Medical Practitioners' Regulation 1981 is amended to include new reg25 and reg26. Relevantly, those regulations provide:- "25. For the purposes of s32U(1) of the Act, the prescribed time within which an appeal may be made is the next 21 days after the making of the decision or exercise of the power or powers by the Tribunal against which the appeal is made or such longer period as the Supreme Court may allow in the particular case. 26(1) For the purposes of s32U(5) of the Act, the prescribed time within which an appeal may be made is the period after the complaint is referred to the Tribunal and before the date of commencement of the inquiry." Clearly, the decision appealed against is outside the time referred to in reg25. However, for a number of reasons we do not consider that this regulation governs the present case. The most important reason is that s32U(S) specifically provides that an appeal may be brought with respect to a point of law at any time "during an inquiry". Therefore, so long as the inquiry is still being "conducted" by the Tribunal, the prescription of time by the regulation is irrelevant. We have previously said that it is our view that the inquiry continues until it is determined pursuant to s32R of the Act. The argument that this appeal is out of time must therefore be rejected. Next, the added opponents asserted that a distinction was drawn by s32U(1) between decision of the Tribunal and "the exercise of any power" under s32R. Upon this basis, it was suggested that the time within which the appeal could be brought from the decision of 27 April 1988 ran from the date of that decision. Although it is true that s32U draws a distinction as the two paragraphs (a) and (b) indicate, it is not the distinction which the added opponents assert. Para (a) refers to any decision with respect to a point of law. We do not consider that the distinction drawn in s32U(1) can cut down the effect of the right conferred by s32U(6). The notion that the Tribunal had "completed" its inquiry, although it had not made its determination of the consequences of its earlier findings for s32R is unpersuasive, The only basis for making those determinations is that the inquiry 6 UNREPORTED JUDGMENTS is continuing, It is only upon the basis of the earlier findings made that the determination called for by s32R may proceed, Many other inconvenient consequences would flow from a holding that the "inquiry" had been "completed" by the decision of 27 April 1988. Such a holding would be quite contrary to the scheme of the Act. Such a straining of the language of s32U(6) cannot be accepted, however inconvenient is the alternative which then necessarily follows. Finally, the added opponents sought to draw some comfort from s32T(3) of the Act. That subsection was further amended after the amending Act of 1987. By the Health Legislation (Reasons for Decisions) Amendment Act 1987, s3, Schedule 1, the subsection, in its present form, now reads:- "32T(3) The Tribunal shall, within one month of making the decision resulting from any such inquiry or appeal, make available to the complainant, the registered medical practitioner concerned and such other persons as it thinks fit a written statement of the decision." From this provision, the added opponents sought to draw the conclusion that the decision of 27 April 1988 was the kind of final decision for which s32T(3) provided and was thus outside a continuing inquiry such as s32U(6) appears to contemplate, We are not persuaded, The provision is principally one for the supply of reasons for decisions. That is its object. It can quite readily stand beside s32U(6) without cutting down the operation of the latter. If the "decision resulting from any such inquiry" includes both the decision on the complaints and the decision determining the inquiry, the inquiry will be completed, S32U(6) would then have no further operation, But where, as here, a separate decision has been given on the complaints, the inquiry by the Tribunal "has not been completed", Accordingly, upon the filing of an appeal with respect to a point of law, parliament has provided that the inquiry "shall not continue" until the appeal has been disposed of. The language of Parliament is clear. So long as its preconditions are made out, the Statute must be obeyed. The preconditions were made out here. Accordingly, the claimant was entitled to the relief which he sought. Need for reform We cannot leave this case without saying that it calls vividly to attention the need for still further amendments to the Act, and in particular to s32U. For the reasons which have been outlined, the prospect of a person under inquiry being able at any stage, without leave of the Supreme Court or of the Tribunal, to interrupt proceedings in the Tribunal and, as of right, to bring them to this Court on a point of law is an unattractive one. Because of the serious consequences of the findings of the Tribunal, it is right that there should be appellate review. The occasional facility, by leave, for review of interlocutory decisions on questions of law may also be beneficial in a particular case. But to afford a party, in proceedings the overall purpose of which is the protection of a public interest, an unqualified right to interrupt those proceedings following a decision at any stage on any point of law, however inconsequential, and to delay the conclusion of an inquiry until this Court can find time to dispose of the point of law, is obviously undesirable. Moreover it is susceptible to abuse. The provision should be given early attention by the legislature to avoid last minute interruptions to the conduct of the Tribunal, as occurred in the present case. URJ EDELSTEN v WARD & ORS (Kirby P, Samuels and Clarke JJA) 7 It was for these reasons that on 3 June 1988, the Court made the following orders:- 1. Order that David Thomas Richmond and Gordon Messiter be added as appellants to the appeal and opponents to the notice of motion herein. 5 2. Order that the further proceedings upon the inquiry being conducted by the Medical Tribunal be stayed until the conclusion of the appeal filed by the claimant or further or other order of the Court. 3. Order that the hearing of the appeal be expedited and that it be listed before the Acting Registrar for the purpose of fixing an expedited date 10 for the hearing in July or August 1988. 4. Order written submissions. 5. Liberty to apply upon two days notice.