BOWEN-JAMES v WALTON and ORS [1991] NSWCA 29

BOWEN-JAMES v WALTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MEAGHER and HANDLEY JJA 31 July and 5 August 1991, 5 August 1991

[1991] NSWCA 29 MEDICAL PRACTITIONERS — MEDICAL TRIBUNAL — EVIDENCE

MEDICAL PRACTITIONERS — complaints of professional misconduct within s28(1)(d) of Medical Practitioners Act 1938 brought before Medical Tribunal — Deputy Chairperson orders exchange of witness' statements (including those of complainant and the doctor) before commencement of inquiry — on appeal by doctor under s32U of the Act and in summons for prohibition to restrain Tribunal as constituted from proceeding with inquiry.

MEDICAL PRACTITIONERS — complaints of professional misconduct within s28(1)(d) of Medical Practitioners Act 1938 brought before Medical Tribunal — Deputy Chairperson orders exchange of witness' statements (including those of complainant and the doctor) before commencement of inquiry — on appeal by doctor under s32U of the Act and in summons for prohibition to restrain Tribunal as constituted from proceeding with inquiry.

Held (i) orders to exchange statements were not procedurally unfair: The King v The War Pensions Entitlement Appeal Tribunal & Anor; Ex parte Bott (1933) 50 CLR 228 considered and distinguished: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to: Jones & Anor v Sutherland Shire Council 2 NSWLR 206 applied; (ii) no material analogy between proceedings before Medical Tribunal and criminal proceedings so as to require all evidence of witnesses to be adduced orally: Butera v Director of Public Prosecutions for

the State of Victoria (1987) 164 CLR 180; Police Service Board & Anor v Morris (1984-85) 156 CLR 397 and Re Singh and Minister of Employment and Immigration (1985) 17 DLR (4th) 422 considered; The New South Wales Bar Association v Evatt (1968) 117 CLR 177; Skinner v Beaumont (1974) 2 NSWLR 106; Edelsten v Richmond & Ors (1987) 11 NSWLR 51 and Ibrahim v Walton, Court of Appeal, 23 April 1991, unreported, applied; In Re Veron; Ex Parte Law Society of New South Wales (1966) 84 WN (Pt1) 136 distinguished; (iii) no necessity for the Deputy Chairperson who had read statements to withdraw from proceedings: The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 and Re JRL; Ex parte CJL (1986) 161 CLR 342 applied.