BANNISTER v WALTON and ANOR [1996] NSWCA 42

BANNISTER v WALTON and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA 19 March, | April 1996

[1996] NSWCA 42

PROCEDURAL FAIRNESS — certiorari statutory tribunal — s32M of Medical Practitioners Act 1938 — bias.

In 1992, by order of a Medical Tribunal which had been appointed pursuant to s32M of the Medical Practitioners Act 1938 to inquire into complaints against him, the claimant's name was removed from the register of medical practitioners. The claimant had been an associate member of the Australian Orthopaedic Association. Dr Ellis, a consultant orthopaedic surgeon who sat on the Tribunal, was also a member of the Australian Orthopaedic Association.

The claimant filed a summons in February 1996, seeking a declaration that the decision of the Tribunal was null and void, and an order in the nature of certiorari quashing the decision. The claimant did not allege actual bias, but argued that a fair minded and informed observer might reasonably apprehend a lack of impartiality on the Tribunal's part, because it was known to Dr Ellis that the Association had been trying to get rid of the claimant for a very long time.

HELD

A fair minded and informed observer would not have equated the views of the Association with those of one of its members in the absence of any actual connection. Nor would a fair minded observer apprehend that because Dr Ellis was a member of the Australian Orthopaedic Association and because he knew of the Association's attempts to get rid of the claimant, he would bring an unfair or prejudiced mind to the inquiry. The fair minded observer would recognise that members of a profession are bound to associate with, and hear both fact and rumour about, other members.

Webb v The Queen (1994) 181 CLR 41 at 73 per Deane J; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 90 per Deane J; S and M Motor Repairs v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 375-376 ORDER Summons dismissed with costs.