WALTON v McBRIDE [1989] NSWCA 222

WALTON v McBRIDE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY JA and Hope AJA 26 September 1989, 3 October 1989

[1989] NSWCA 222

MEDICAL PRACTITIONERS — professional misconduct — meaning of — complaint to Medical Tribunal — preliminary questions of law determined by Tribunal — appeal by complainant and medical practitioner to the Court of Appeal — whether applicable "misconduct" is "professional misconduct" as introduced by 1987 amendments to the Medical Practitioners Act 1938 — whether such definition would have a retrospective effect on the rights and liabilities of the medical practitioner — whether "professional misconduct" under the amended Act imports the necessity for the complainant to prove that the conduct complained of would incur the "strong reprobation of fellow practitioners of good repute and competence" as stated in Qidwai v Brown [1984] 1 NSWLR 100 — held: (1) (Dismissing cross-appeal by the practitioner). After the Medical Practitioners (Amendment) Act 1987 came into force the relevant misconduct to give rise to a complaint was, and was only, "professional misconduct" as provided by s28(1)(d) of the Act and defined by s27(1) of the Act, as amended; (2) Such definition did not involve the retrospective operation of the amending Act upon accrued rights but applied the amendments to past conduct for the purpose of determining present and future fitness to practise having regard to the purpose of the Act to protect the public.

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;