EDELSTEN v RICHMOND [1989] NSWCA 71

EDELSTEN v RICHMOND

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY PRIESTLEY MEAGHER JJA 24 July 1989, 1 September 1989 [1989] NSWCA 71

CLAIM FOR ORDERS IN NATURE OF PROHIBITION OR CERTIORARI AND DECLARATIONS - claim that orders made against applicant by Medical Tribunal were nullities - claim based on assertions that (i) Medical Board, at time it caused constitution of Medical Tribunal was either non existent or lacked relevant power; (ii) Medical Tribunal not properly constituted because delegated power used to appoint members not validly conferred; (iii) Chairman of Medical Tribunal not validly appointed; (iv) other members of Medical Tribunal not validly appointed all claims dependent on construction of statutes and documents all claims fail

ORDERS Proceedings dismissed with costs.

Mahoney JA In this proceeding Dr Edelsten claims orders in the nature of prohibition or certiorari and declarations. The facts are detailed in the judgment of Priestley JA which I have had the advantage of reading. Mr Neil QC, for Dr Edelsten, has taken four points. These points are of a technical nature and do not go to the substantial merits of the removal of Dr Edelsten from the Register of Medical Practitioners. But they go to the exercise of public powers and it is proper that they be pursued. However, as the points taken depend, or may depend, upon the state of the evidence and as points differently formulated may have been able to be cured by further evidence, it is proper that the proceeding be dealt with by reference, and reference only, to the points as they have been taken.

The points taken depend upon the provisions of the Medical Practitioners Act 1938 as amended by the Medical Practitioners (Amendment) Act 1987. They go to the constitution of the New South Wales Medical Board ("the Board") and its relationship to the Medical Tribunal ("the Tribunal"). Prior to the amendments of 1987, complaints of the kind here relevant were dealt with by a Medical Board: s5; and by a Disciplinary Tribunal: s28. The effect of the 1987 Act was to set up a new Board and a Medical Tribunal: see s5 and s32M. The 1987 Act was assented to on 16 June 1987 but the relevant parts of it came into effect on | October 1987. Under the Act as amended, complaints of the relevant kind were dealt with initially by the Board: see s28 et seq. The complaints might be referred by the Board to the Tribunal: see s32 et seq. The complaint is then heard by a Tribunal composed of a Chairperson and of three other persons appointed by the Board for that purpose.