JOHN HERBERT BANNISTER v MERRILYN WALTON & ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE JA 11 March 1996 [1996] NSWCA 41 Cole JA Application has been made by notice of motion brought on behalf of John Herbert Bannister that proceedings be expedited. The proceedings are those numbered 40083/96 in which a declaration is sought that a decision of the Medical Tribunal, having the effect of removing his name from the Register of Medical Practitioners, was null and void. The decision of the Tribunal was upheld by the Court of Appeal, but I am informed that that was only in relation to matters of law. The basis of the application is set forth in a statement of Dr Mario Benanzio, undated February 1996. In par6 thereof he deposes to a conversation with Dr Ellis. Dr Ellis was a member of the Medical Tribunal which sat on the hearing of the complaints against Dr Bannister. In essence it is to be contended that in accordance with the principles enunciated in Vakauta v Kell! there is a reasonable apprehension of bias infecting the decision of the Medical Tribunal and accordingly the determination should be quashed. The first question involves whether this case should be given expedition. The initial decision of the Tribunal was given in April 1992. There were some sixty-one days of hearing time prior to that date, the hearing taking place between September 1991 and March 1992. A stay was sought on 30 April 1992 and a temporary stay was granted until 31 May 1992. he appeal was dismissed on 4 June 1993. Leave to appeal was unsuccessfully sought from the High Court on 4 June 1993. In consequence since May 1992 the claimant has been unable to practise his profession as an orthopaedic surgeon. In consequence he has suffered financial hardship and has entered into a deed of arrangement under Pt 10 of the Bankruptcy Act 1966. On 31 July 1995 he lodged a claim for a review of readmission before the Medical Tribunal under the Medical Practice Act 1992. It was in preparing for that hearing which has commenced and which has been adjourned until 27 May 1996, that it is said there was a conversation with Dr Benanzio, to which I have referred, which is said to give rise to the apprehension of bias infecting the original proceedings. I have been informed from the Bar table that the substance of the matter referred to in the statement of Mario Benanzio will be in contest, and accordingly it will be necessary that evidence be taken from Dr Benanzio, probably from Dr Ellis, and it may well be that if those two are in conflict, others including senior counsel and a solicitor may be required to give evidence. 1. (1989) 167 CLR 568 2 UNREPORTED JUDGMENTS Those circumstances make it clear, in my view, that the circumstances fall within the category enumerated as no 1 at pl 1 of the decision of this Court in Elders Rural Finance v Smith & Ors? That category is "Cases of judicial review, conduct of public officials, and in particular where such conduct has implications for others or for the due administration of the law." Here there is a challenge to the integrity, based on grounds of bias, of a decision of the Medical Tribunal. Accordingly the matter is entitled to significant expedition. In addition the matter falls within that category of case where significant financial hardship is occasioned to the person subject to orders. I propose to briefly adjourn to consult the President regarding a proposed hearing time table. In the meantime the parties might give consideration to whether they would consent to a single Judge of Appeal taking the evidence on the basis that that Judge of Appeal may or may not sit on the hearing of the appeal. Certainly, if that is not able to be accommodated within the Court's calendar, the parties should agree on some terms for a single Judge of the Common Law Division taking the evidence. SHORT ADJOURNMENT ON RESUMPTION HIS HONOUR: What is the view of the parties concerning whether they are prepared to accept the evidence being taken by a single Judge with the parties being bound by that single Judge's determination of the facts, including any issues of credit. SLATTERY: That is acceptable, if it will lead to an earlier hearing. LEGGATT: That is suitable. LATTERY: If that were to be a single Judge of the Court of Appeal, that is acceptable to my client. If it were to be a Judge of the Common Law Division that is also acceptable. HIS HONOUR: I think I will need to consider, in consultation with the President, whether or not it really is desirable that this be heard by a single Judge or three Judges. There is likely to be a conflict on the question of credit between Dr Ellis and Dr Benanzio and possibly involving a QC and solicitor. If that is right, as much may turn on the outcome of that, it may be preferable for three Judges of Appeal to hear it. That is not a decision that I would like to take immediately. I have in mind to lay down a time table for the filing of evidence, and when that is complete I will list it before me at 9,30 one morning and I will be in a better position to tell you when it is likely to be heard. SLATTERY: Although evidence of my instructing solicitor and myself would be contingent, depending on what Dr Benanzio said, it is desirable the other parties have access to what that evidence would be. We don't know what Dr Benanzio is going to say. HIS HONOUR: It is important to know the scope of the debate before deciding whether one Judge or three Judge hear it. SLATTERY: I and my instructing solicitor are in a position to file relevant affidavits by 4 O'clock tomorrow. HIS HONOUR: There is a matter that I should raise. In the initial Court of Appeal proceedings the Bench comprised Mahoney JA, Priestley JA and Clarke JA. You told me that that was an appeal on a question of law. In one sense that 2. (Unreported Court of Appeal. 22 December 1995) URJ JOHN HERBERT BANNISTER v MERRILYN WALTON & ANOR (Cole JA) 3 means there is no question but that they are entitled to sit if they wish to sit on the matter. Has anyone any objection to any of those three sitting. SLATTERY: I don't believe so. IS HONOUR: I need to know only becuase it will increase or decrease the difficulties of constituting a court. Each Judge may indicate he does not wish to sit anyway. LEGGATT: The second opponent does not take issue with any of those Judges. My recollection is that Mahoney JA made a reflection on the facts to the effect that were he required to make a finding of fact, he would make a finding as did the Tribunal. HIS HONOUR: I will have it cleared up before I approach the President about constituting a court. I will stand the matter until 10.15 am Thursday. I give these directions: It seems to me appropriate that the scope of the evidentiary debate be understood by the Court prior to the decision being taken as to whether it is desirable for the evidence to be taken before a single Judge or before the Court of Appeal sitting with a Bench of three. I note that all parties agree to a single Judge taking that evidence, if that is the decision of the Court, on the basis that the parties do accept to be bound by any findings of fact made by that single Judge in relation to the conversations in question and in relation to any aspects of credit. I shall direct that Dr Mario Benanzio swear an affidavit in relation to discussions he has indicated he had with Dr James Ellis on 23 February 1996, such affidavit to be filed and served by 4pm on Wednesday. I direct that any other affidavit on behalf of the claimant be filed and served by 4pm Tuesday, 12 March 1996. I direct that any affidavit in reply by any witness on behalf of any opponent be filed by 4pm Wednesday, 13 March. I stand the matter over before me at?. | Spm on Thursday, 14 March. I grant leave to issue subpoenas to Dr James Ellis, to the proper officer of the Australian Orthopaedics Association, to Telstra and to Optus, such subpoenas to be filed and served not later than noon tomorrow. They are to be returnable before me at 2.15pm on Thursday, 14 March 1996. I stand the matter over before me at?. | Spm on Thursday, 14 March. I grant leave to issue subpoenas to Dr James Ellis, to the proper officer of the Australian Orthopaedics Association, to Telstra and to Optus, such subpoenas to be filed and served not later than noon tomorrow. They are to be returnable before me at 2.15pm on Thursday, 14 March 1996.