MANNING v THE DISTRICT COURT OF NEW SOUTH WALES and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, MAHONEY JA and Hope AJA 3 August 1992, 22 October 1992 [1992] NSWCA 145 PREROGATIVE RELIEF — certiorari — error of law on face of record — discipline of chiropodists — registered chiropodist engages unregistered chiropodist in his practice — Chiropodists' Registration Board finds him guilty of misconduct in his practice as a chiropodist which renders him unfit in the public interest to practise chiropody within Chiropodists Registration Act 1962, s26(1)(d) — on appeal to District Court (Dent DCJ) finding of such misconduct quashed — judge holds that "misconduct" referred to is of an aggravated kind — on summons for judicial review — held: (Kirby P; (Mahoney JA and Hope A-JA concurring)) (1) In the context of the Act, the "misconduct" required to warrant discipline was of an aggravated kind viz such as to render the practitioner unfit in the public interest to practise chiropody; (2) Properly interpreted, the judge dealt with the matter on the basis of all of the evidence before him; (3) Upon that basis, there was evidence upon which he could properly conclude that the misconduct shown was not of the aggravated kind contemplated by the Act. Consideration of the merits was for him; (4) Accordingly, relief in the nature of certiorari refused. Rex v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 (CA) referred to. INFERIOR COURTS and TRIBUNALS - Chiropodists Registration Board - appeal to District Court - appeal by rehearing - misconduct - meaning of - whether aggravated form of misconduct required to warrant discipline - held: It is. WORDS and PHRASES - "misconduct which renders him unfit in the public interest to practice chiropody". Chiropodists Registration Act 1962, s2, s3, s20, s21, s26, s28, s31, and s33. Podiatrists Act 1989, s3, s13, and s14. Kirby P The summons before the Court claims relief in the nature of prerogativewrit of certiorari directed to the District Court to bring up its record so that the orders made by that Court might be quashed. The proceedings under challenge involve an appeal to the District Court constituted by Dent DCJ. The appeal was brought from a decision of the Chiropodists Registration Board (the Board). The Board decided that a chiropodist, Mr Peter Norton, was guilty of misconduct in his practice as a chiropodist and unfit in the public interest to practise chiropody. The Board thereupon suspended Mr Norton's registration for a period of one month. On appeal, Dent DCJ upheld Mr Norton's appeal. He quashed the findings and orders of the Board. Promptly thereafter, Mr Sydney Manning, the inspector whose complaint had first brought Mr Norton before the Board, issued his summons out of this Court. The District Court (the first opponent) submitted. Mr Norton contested the relief sought by Mr Manning. Chiropodists Board find unfitness to practise For the purposes of these proceedings, the parties agreed that the Court should treat the following documents as the record of the District Court under review: 1. The reasons for judgment of Dent DCJ dated 27 May 1992; 2 UNREPORTED JUDGMENTS 2. The transcript of proceedings before Dent DCJ of the same date; 3. The complaint made by Mr Manning to the Board bearing date 18 July 1988; and 4. The transcript of the inquiry held by the Board dated 28 March 1990 which was tendered before Dent DCJ and was an exhibit in the appeal determined by his Honour. Iam content to deal with the summons upon the basis that this material is the record. See Adams v Kennick Trading (International) Ltd and Ors (1986) 4 NSWLR 503 (CA); Coles and Ors v Burke and Ors (1987) 10 NSWLR 429 (CA). Also read in the Court was an affidavit by the solicitor for the claimant. This testimony deposed to certain other facts upon which the Court was asked to act. From the record before Dent DCJ, so elaborated by consent,the following facts appear. The alleged offence on the part of Mr Norton which gave rise to the proceedings occurred on 30 April 1987. Upon that day, it was alleged he aided, abetted, counselled and procured one Ms Delicia Rasmos, a person who was not a chiropodist registered under the Chiropodists' Registration Act 1962 (the Act) to practise chiropody for a fee at premises which were specified, being one of three clinics at which Mr Norton carried on his chiropody practice. Mr Norton was later charged with the common law misdemeanour of aiding and abetting Ms Rasmos to commit an offence under the Act. S31 of the Act provides that any person who contravenes any of the provisions of the Act for which a penalty is not expressly provided is guilty of an offence under the Act and liable to a penalty not exceeding $100. By virtue of s28(1) of the Act, no person other than a chiropodist is permitted for fee or reward to practise chiropody. By s2 of the Act, "chiropodist" means a person registered under the Act. "Chiropody" means "the care of the toenails or the treatment of their disorders or the treatment of superficial excrescences of the feet". Accordingly, Ms Rasmos was guilty of an offence under s28(1). By s31 her offence attracted the penalty there provided. She pleaded guilty. She was convicted and fined for her offence. Mr Norton also pleaded guilty of the charge of aiding and abetting her offence. However, on 20 January 1988 the magistrate hearing the charge against him dismissed the charge pursuant to the provisions of the Crimes Act 1900, s556A. That was not the end of the matter. The claimant's complaint to the Board was lodged on 18 July 1988. The complaint was heard on 28 March 1990. The Board, at the conclusion of the hearing found Mr Norton guilty of misconduct in his practice as a chiropodist and "unfit in the public interest to practice (sic) chiropody". Various other formal findings were made. The determination of the Board then continued: "We find the evidence shows that Mr Norton was aware that Ms Rasmos was in fact unregistered to practice chiropody in New South Wales and that he made no attempt to verify her qualifications even though he was aware of the requirements to practise chiropody in this State. We find that Mr Norton then allowed Miss Ramos (sic) to practise unsupervised at his rooms in Bondi Junction under his name with no direct knowledge of the scope of her activities. We find Mr Norton allowed Miss Ramos to issue receipts to clients under his name for monies for services rendered by her. We find Mr Norton deliberately departed from accepted and elementary standards of professional conduct in relation to the practise (sic) of chiropody, a matter which the Board views with grave concern." URMANNING v THE DISTRICT COURT OF NEW SOUTH WALES and ANOR (Kirby P) 3 After hearing further submissions, the Board proceeded to impose the penalty of suspension from practice for a month. It was this suspension which occasioned an immediate appeal to the District Court. Provision for such appeal is made by s26(6) of the Act wherever, relevantly, a penalty of suspension from practice is imposed. The appeal did not effect a stay of the operation of the suspension. However, on 30 March 1990, Carruthers J in the Supreme Court ordered a stay in order to protect the utility of the appeal. It was this appeal which came before Dent DCJ on 27 May 1992 when his Honour foreshadowed the orders upholding the appeal and quashing the findings and orders of the Board. The solicitor's affidavit discloses that these orders were formally given effect on 17 June 1992. This fact was not contested. The District Court's reasons for upholding the appeal The appeal was conducted with an economy of evidence and argument. Dent DCJ determined that the appeal should proceed by way of rehearing. Apparently, this course was contested. However, as s26(7) expressly provides that: "(7) Any such appeal shall be in the nature of a re-hearing... " his Honour's approach to the appeal was obviously correct. The complaint was tendered as were certificates relating to the registration of Mr Norton and the non-registration of Ms Rasmos. Also admitted without objection was a certificate deposing to the outcome of the criminal proceedings brought against Mr Norton and Ms Rasmos. The inspector, Mr Manning, gave short evidence concerning a conversation with Ms Rasmos and later with Mr Norton. The transcript of the hearing before the Board wag tendered and although objected to, was admitted and marked as an exhibit. Counsel for Mr Norton then submitted that there was no case to answer. This submission was upheld by Dent DCJ. He said: "I am satisfied that neither the Board, nor I, could conclude on the evidence that the admitted misconduct of the appellant rendered him unfit in the public interest to practise chiropody. It may well be, and I cannot know, that Ms Rasmos - though unregistered under the Act - was more skilled than the appellant in the art of chiropody. On the other hand, she asserted overseas qualifications in podiatry which the appellant did not check, and she was allowed to do a restricted range of chiropody without his direct supervision. There is no evidence her services were incompetently performed. subs26(1)(d) requires a finding of more than mere misconduct in the practice to trigger the penalising powers of the Board and this Court.... [T]he scheme of the Act is one designed to serve the public interest, by confining the practice of chiropody for reward or fee to registered personnel who have proven qualifications. That purpose in the legislation does not justify a conclusion that the misconduct here proved per se rendered the appellant unfit within the meaning of the Act. There is simply no evidence from which an affirmative conclusion could be drawn that the public interest was so disserved by this misconduct, that is to meet the requirements of the subsection, particularly in light of the fact that, as I read s28 of the Act, it would have been licit for the appellant to have utilised the services of Ms Rasmos so long as she received neither free nor reward and didn't offend against s1(d) of that section." The claimant contended that these reasons betrayed an error of law on their face which warranted relief in the nature of certiorari.In order to assess this contention, it is necessary to set out the relevant provisions of the Act. Provisions of the Act 4 UNREPORTED JUDGMENTS The Act constitutes a Board to exercise the powers, authorities, duties and functions provided by the Act (s3). The Board comprises two medical practitioners, four other persons engaged in the practice or teaching or chiropody and a member nominated by the Minister (s4). There are the usual provisions relating to the constitution and meetings of such a Board. Its powers and duties include, relevantly, the suspension of the registration of any person under the Act (s20(d)). The Board is obliged to keep a Register of Chiropodists (s21). Only persons of good character who have completed the training or qualifications may be registered (s22). Provision is made for the recognition of "British or foreign" qualifications (s22(2)). Provision is also made for an annual fee (s24). The critical provisions of the Act relating to misconduct read: "26(1) Where the Board after enquiry is satisfied that a chiropodist: (a) has been convicted, either in New South Wales of a felony or misdemeanour, or elsewhere of an offence which, if committed in New South Wales, would have been a felony or misdemeanour; or (b) has been guilty of habitual drunkenness or of addiction to any deleterious drug; or (c) has used any certificate, diploma, membership, degree, license, letters, testimonial or other title status document or description in relation to himself as a chiropodist or in his practice as such, other than those (if any) which the Board has authorised... to be entered in respect of such chiropodist in the Register; or (d) has been guilty of misconduct in his practice as a chiropodist which renders him unfit in the public interest to practice (sic) chiropody, the Board may reprimand or caution such a person or may remove his name from the Register or suspend his registration for such period as the Board shall think fit. (2) In the case of a conviction for an offence as aforesaid, no person shall have his name removed from the Register or have his registration suspended on account thereof if such offence does not, either from its trivial nature or from the circumstances under which it was committed, render such person unfit in the public interest to practice (sic) chiropody. (3) In making any such inquiry, the Board shall sit as in open court and the person charged shall be afforded an opportunity of defence either in person or by counsel. (4)... (5)... (6) Any person aggrieved by the removal of his name from the Register or by the suspension of his registration... may appeal... to the District Court... (7) Any such appeal shall be in the nature of a rehearing and should be made in accordance with rules of court; (8) The District Court may make such order as it deems fit and such order shall be final, and without appeal, and the Board shall give effect thereto." As previously stated, s28 provides that no person other than a chiropodist (ie a registered chiropodist) shall for fee or reward practise chiropody. S31 provides for the penalty already stated. S33 provides for prima facie evidence of entries in the register to be given. The provision invoked by Mr Manning in the instant case was s26(1)(d). There was no suggestion that s26(1)(b) or (c) applied. Nor did s26(1)(a) apply because Mr Norton had not been convicted, having received the benefit of s556A of the Crimes Act. Therefore, if the Board's decision was to be sustained, it was necessary for the claimant to establish, on the appeal by way of rehearing before Dent DCJ that Mr Norton had: URMANNING v THE DISTRICT COURT OF NEW SOUTH WALES and ANOR (Kirby P) 5 "\.. been guilty of misconduct in his practice as a chiropodist which renders him unfit in the public interest to practice (sic) chiropody. The argument of tho parties The claimant asserted that Dent DCJ's decision was self-evidently incorrect. He criticised his Honour's suggestion that it was necessary to call evidence to show explicitly that Mr Norton was "unfit in the public interest to practice chiropody". Mr Norton had conceded "misconduct". The misconduct was, as the Board found, of a serious and relevant kind. The Act established a scheme for the registration of chiropodists. This was a scheme, ultimately, for the protection of the public interest. In support of this contention, the claimant read to the Court a passage in the Second Reading Speech of the Minister for Health (Mr W Sheahan) when introducing the Bill which became the Act in 1962. The Minister said: "[C]hiropodists perform what might be described as minor surgical procedures and it is necessary, in the public interest, to ensure that only persons who possess adequate skill and have had a satisfactory course of training should be permitted to describe themselves as chiropodists and to practise chiropody." Describing CL26 which became s26 of the Act, the Minister said: "CL26 gives the Board certain disciplinary powers over registered chiropodists, and provision is made for it to reprimand or caution a chiropodist, to remove his name from the Register or to suspend his registration for such period as it shall think fit. Provision is made for appeal to the District Court against decisions of the Board to remove or suspend from the Register... As a consequence of the setting up of a Registration Board and the registration of chiropodists possessing acceptable qualifications, the Bill places a prohibition on the practice of chiropody by unregistered persons. " See New South Wales Parliamentary Debates (Legislative Assembly) 9 May 1962, 447, 449. To give effect to the scheme of the Act and its provisions and to carry forward the objectives which the Minister accurately described, the claimant said that it was essential that registered chiropodists should not engage for the performance of work of chiropody in their practices persons who are not themselves registered. Otherwise, the public interest, which the registration system was designed to uphold, would be undermined, incompetent persons would perform their surgical-like activities on unsuspecting members of the public and the integrity of the occupation of chiropodists would be destroyed. It was submitted that a registered chiropodist would be taken to know the purposes of the legislation and of the system of registration. When he or she allowed a person for fee to perform chiropody, such a chiropodist thereby demonstrated, without more, misconduct which, rendered him or her unfit in the public interest to practise chiropody. For the claimant, the words "which renders him unfit in the public interest to practice (sic) chiropody" were surplusage. It was sufficient that "misconduct" in his practice as a chiropodist was shown. This Mr Norton had conceded. Accordingly, without more, there was evidence upon the basis of which the Board was entitled to suspend him. Its decision, as a specialised body established by statute should not have been disturbed by a Judge of the District Court hearing an appeal. Some apparent support for this argument may be derived from the range of powers which the Board is afforded by s26(1) to deal with cases where the relevant offence is made out. The range of responses extends from a mere reprimand or caution to removal of the name of the offender from the Register. 6 UNREPORTED JUDGMENTS Thus, it was argued that it was apparently contemplated that in some cases, although the chiropodist was found to be guilty of misconduct in such a way as to render him unfit in the public interest to practise chiropody, he might merely receive a reprimand or caution. This showed that the quality of misconduct required to meet the offence in s26(1)(d) was not necessarily as substantial as Dent DCJ had assumed. The proved misconduct must be serious Although these arguments provide an available construction of s26(1)(d) they do not, in my view, offer the preferable construction of the paragraph. I do not believe that it is appropriate to treat the words "which renders him unfit in the public interest to practice chiropody" as mere surplusage. Such an assumption should not readily be attributed to Parliament. In particular, it should not readily be assumed that the words were added as surplusage in the present context. $26, dealing with a variety of misconduct, clearly contemplated some misconduct which might be relatively trivial. Thus a "misdemeanour" in s26(1)(a) might, with entire appropriateness, attract the response of a "reprimand or caution". The range of responses open to the Board is stated, as is conventional, at the foot of the categories of "misconduct" provided for. It does not necessarily follow that reprimand or caution would be appropriate to the kind of misconduct contemplated by s26(1)(d). Most of the classes of misconduct giving rise to a response on the part of the Board can be seen as serious. The conviction of a criminal offence (para(a)); habitual drunkenness or drug addiction (para(b)); misuse of qualifications (para(c)) and then misconduct of the kind described in para(d). In such a category of misconduct it is not at all surprising that the "misconduct" described in para(d) should be of a serious variety. It is, after all, a serious matter to expose a person to the risk of suspension of the registration necessary for the earning of his or her living. Still more serious is it where the name may be removed from the Register as a consequence of such a finding. Therefore, in the context, and for the purpose for which s26(1) is provided by Parliament, it is perfectly reasonable that the "misconduct" in practice which will attract the response on the part of the Board should be misconduct of a serious kind and not transient, insignificant or ephemeral misconduct. It has to be misconduct of the kind which exposes the chiropodist to an inquiry under the Act, held in public, with the potential consequences for the chiropodist's reputation, pocket and livelihood. There are two other reasons for adopting this approach and for rejecting the claimant's argument that the words are mere surplusage. In s26(2) emphasis is given to the seriousness of the offence for which a conviction is to be considered relevant under s26(1)(a) of the Act. Parliament expressly states that an offence is to be disregarded if it is of a trivial nature or committed under circumstances which do not "render such person unfit in the public interest to practice (sic) chiropody". Once again, therefore, in respect of para(a) as well as para(d), Parliament has taken the trouble to emphasise that it is only particular classes of conviction, as of misconduct, which will enliven the disciplinary powers under s26(1). These are the serious cases of conviction or misconduct which render the person unfit in the public interest to practise chiropody. The range of misdemeanours, and even of some ancient common law felonies, is such that conviction for some of them may be entirely irrelevant to a person's ability to practise chiropody with entire safety to the public interest. Similarly with "misconduct". It is not every "misconduct", even in the practice of a chiropodist, which renders that person unfit in the public interest to practise chiropody. URMANNING v THE DISTRICT COURT OF NEW SOUTH WALES and ANOR (Kirby P) 7 Another justification for the requirement of an aggravated form of misconduct may be found in the relatively confined range of activities in which chiropodists are ordinarily engaged. Few of these activities are life-threatening or even present the risk of serious injury to the individual or danger to the community. Finally, the Court was taken to the statute which has now replaced the Chiropodists' Registration Act. This is the Podiatrists Act 1989. That Act came into force after the events which were the subject of the complaint concerning Mr Norton. Under the Podiatrists Act, provision is made to forbid any person other than a registered podiatrist performing specified work of podiatry. A new approach to discipline is adopted. S13 requires the establishment by the new Board of a code of professional conduct to be observed by registered podiatrists in carrying on the practice of podiatry. S14(1) of the new Act entitles a person to make a complaint to the Board that a podiatrist: "(c) has been guilty of professional misconduct." No reference is made in this provision to the qualification which formerly existed under s26(1)(d) of the 1962 Act. "Professional misconduct" is defined in s3 of the Act but likewise without the limitation expressed in the 1962 Act. Although care must be taken in deriving too much from the history of successor legislation, it is at least worth observing that Parliament has now removed the words which qualified "misconduct" in s26(1)(d) of the old Act. This appears to have been a deliberate decision of the drafter. It tends to negate the suggestion that the words in the former Act, which is relevant here, are surplus. Conclusion: the decision was open to the judge There is no appeal to this Court from the decision of Dent DCJ. $26(8) of the 1962 Act makes that plain. The jurisdiction which is here invoked is that to review the record for a manifest error of law. With respect to Dent DCJ, I do believe that the claimant has a legitimate complaint about the way in which his Honour appears to have telescoped two steps in his reasoning, viz: (1) whether there was any case to answer; and (2) whether, if there was a case to answer, on the evidence presented, Mr Norton was entitled to succeed in the appeal. His Honour treated the case, as Mr Norton invited, as a case of (1). In my view, it was more appropriately one where, although there was a case to answer, it was open to his Honour to conclude that an adequate answer had been given. The testimony in the record of the Board, which was before Dent DCJ and was treated as material before him, indicated that Ms Rasmos had been recommended to Mr Norton. She had come from Argentina where, it seems, she had qualifications of her own in podiatry. He had experienced great difficulty in securing qualified people to work in his three practices. He had therefore given Ms Rasmos work, essentially as a beautician. He had instructed her to do no more than simple straight-forward work of cutting toenails with a "bit of massage and dressing". By his instructions she was confined to the "easy patients". She was told that all difficult cases were to be referred to him, including "any patients involved in treatment with a scalpel for corns or calluses". In these circumstances, it was urged that she was not really doing the work of "chiropody" at all or, if she was, that it was insubstantial and certainly not such as to render Mr Norton someone who was "unfit in the public interest to practice (sic) chiropody" by reason of his "misconduct in his practice" in engaging and utilising her services. The evaluation of such a submission was for Dent DCJ. Once it is acknowledged, as I think it should be: 8 UNREPORTED JUDGMENTS (a) That the words in s26(1)(d) of the Act are not surplusage but indicate that it is only for "misconduct in his practice" which is of a more serious kind that a finding will be justified which authorises such a response; and (b) That what Dent DCJ actually did was to proceed past the "no evidence" submission and to evaluate for himself the evidence against the statutory criterion so defined, it has to be accepted that there wag evidence upon which it was open to Dent DCJ to come to the view which he did. If that is so, no occasion for the issue of relief in the nature of the writ of certiorari arises. Nor is it necessary for this Court to consider whether, for other reasons of a discretionary character, relief should be denied in this instance. Cf Rex v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 (CA) at 346. Cf T Bingham "Should Public Law Remedies be Discretionary?" [1991] Public Law 64, 68. Mr Norton urged that in any case this Court would be slow to disturb the District Court decision. He relied upon the delay in the prosecution; the lapse of time since the events charged; the repeal and substitution of the Act; and the insubstantial nature of the "offence". Because of the conclusion which I have reached, it is unnecessary to consider these arguments. Dent DCJ's decision discloses no error of law on the face of the record in the matter challenged. Mr Norton was entitled to succeed in the District Court. Whether he should do so was a question reserved by law to Dent DCJ. Order The summons to this Court should therefore be dismissed with costs. Mahoney JA I concur in the conclusions of Kirby P whose judgment I have had theadvantage of reading. The matter came before Dent DCJ on appeal by way of rehearing from the Chiropodists Registration Board. The evidence before the learned judge was not identical with that before the Board and it is therefore his Honour's conclusions of fact, rather than those of the Board, upon which the present application must be dealt with. It is necessary to determine whether, on the basis of his Honour's conclusions of fact and the principles on which he acted, an order in the nature of certiorari should go against the orders made by him. T understand his Honour's judgment, he considered that no case had been made out against Mr Norton sufficient to call upon him to give evidence. He arrived at this conclusion essentially upon the basis that there was "simply no evidence from which an affirmative conclusion could be drawn that the public interest was so disserved by this misconduct, that is to meet the requirements of the subsection, particularly in the light of the fact..." to which his Honour referred. If the appeal to his Honour was of a civil nature, it may be that it would have been appropriate for his Honour to avoid the difficulties such as the present by inviting Mr Norton to indicate whether he desired to call evidence. However, the argument has not indicated that an application of the present kind turns upon such a matter. I shall deal with the application on the basis on which, in substance, it was put to this Court. As the President has indicated, s26(1)(d) envisages that the misconduct there referred to, if it is to be sufficient to warrant an order under the paragraph, must go to "the public interest" as there referred to. His Honour held, I think, that the conclusion could not be drawn that that requirement of the paragraph had been established. The present application is not an appeal on fact or law: it is an application for prerogative relief. To secure that relief upon the basis of what is the record of the proceeding before the judge, it is in my opinion not sufficient to establish that the WAANNING v THE DISTRICT COURT OF NEW SOUTH WALES and ANOR (Hope AJAD judge made an error in his assessment of whether the evidence could warrant a finding that the public interest requirement was satisfied. It is not shown that he erred in his construction of the term "public interest". If, as I think was the case, the suggested error lay in his assessment of the evidence, that, in my opinion, does not warrant the grant of certiorari. I therefore agree with the orders proposed by Kirby P. Hope AJA I agree with Kirby P. Summons dismissed with costs. Counsel for the Claimant: CL Lonergan Instructed by: Proctor Phair and Associates Counsel for the 1st Opponent: ID Hill (Solr) submitting Instructed by: HK Roberts, Crown Solicitor Counsel for the 2nd Opponent: PR Glissan Instructed by: HK Roberts, Crown Solicitor