Justice Gillard says: prosecute the same offence as many times as you like

Update: This decision was reversed on appeal: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301.

Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 (Gillard J)

Justice Gillard said doctors get no res judicata and allowed the doctors’ regulator to fix a bungled prosecution following a complaint by deciding to investigate the matter already decided under its power to investigate of its own volition.
The Medical Practitioners Board is the statutory authority for the discipline of doctors. Dr Kabourakis prescribed drugs to the victim of an industrial accident. Then the victim died. His wife complained. The Board appointed a doctor to investigate as its delegate. He recommended an informal hearing be held. At the hearing, due to an oversight prior to the hearing, an expert report in relation to the doctor’s conduct was not considered and not given to the doctor. The Board determined that the doctor was not guilty of unsatisfactory conduct. The complainant involved the Ombudsman. The oversight became apparent. The Board purported to exercise its power to convene a second hearing of its own volition. That is, it purported to exercise a different power from the one associated with complaints which it had exercised the first time.

The doctor, represented by niche medical negligence firm JW Ball & Sons, failed in his application for review from the Supreme Court under Order 56 of the Supreme Court Rules (that is, old fashioned judicial review in administrative law, not under the Administrative Law Act, and not merits review of the kind engaged in by VCAT under the VCAT Act). He had sought an order quashing the Board’s decision to convene a second hearing.

Justice Gillard, who had heard another Order 56 application in SPB v Law Institute of Victoria Ltd a week earlier said of the alternative power to convene a hearing employed by the Board on the second occasion:

“[32] Section 25(7) clearly gives the Board power to determine of its own motion whether or not to, inter alia, hold an informal hearing into the professional conduct of a practitioner. This power is exercisable whether or not there has been a preliminary investigation. It is a power that is separate and distinct from the obligation resting on the Board in respect of a notification to the Board of a belief by a person that a medical practitioner has engaged in unprofessional conduct, or that the practitioner’s performance is unsatisfactory, leading to a preliminary investigation, recommendation and determination by the Board to accept a recommendation and hold a hearing. This sub-section gives an additional power to be exercised by the Board of its own motion, irrespective of whether there has been a preliminary investigation. Standing alone, it clearly empowers the Board to determine to hold an informal hearing. This can be exercised even after a preliminary investigation. The outcome of the latter resulting in a recommendation obliges the Board to determine whether or not to act on the recommendation. In my opinion, it is clear that having made the determination, the Board may of its own motion determine to conduct a hearing even if contrary to the recommendation. In my opinion, there is nothing in the Act that excludes this power from operation because an informal hearing has taken place and a finding has been made which in the circumstances was accepted by the Board. The power in s 25(7) is a stand alone power which the Board may exercise of its own motion.”

His Honour concluded:

“whilst it may be arguable that the panel which undertook the first informal hearing and made a finding is at the end of its statutory power, the presence of [the power under which the Board had purported to convene the second hearing] makes it clear in my opinion that the Board has a separate and distinct power which it may exercise of its own motion. That is what it has done by establishing a second panel to undertake a second informal hearing. In addition, there is nothing in the Act which precludes the Board from correcting a mistake by holding a second informal hearing in accordance with the principles stated in Bhardwaj’s case. That is, the decision is an administrative one, consistent with the Board’s duty to properly investigate a notification in the interests of good administration and fairness, and the functus officio rule must give way. It follows that the Board has the power in accordance with the principles stated by the High Court [in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 including at 603].

His Honour found that the “overlooked” s. 40 of the Interpretation of Legislation Act, 1984 (Vic) also applied. That says that where a statutory power is granted it may be exercised from time to time as the occasion arises, unless a contrary intention appears in the statute under interpretation. His Honour found that there was no such contrary intention, even evidenced as by the scheme of the Act as a whole. He found that the Board having considered that the occasion arose, and given that a fresh occasion had arisen by virtue of the omission of the probative report on the occasion of the first exercise of the power, s. 40 did provide a power to hold a second hearing. It was no part of his function in a judicial review proceeding to decide whether the Board was right that the occasion had arisen; that was a matter for the Board.

In relation to the principle of res judicata (the rule against relitigation between parties to a judgment of the dispute decided by the judgment), Gillard J decided that the common law principle had been displaced by the Medical Practice Act, 1994 which he had found permitted the holding of a second hearing in the circumstances of this case.

But he said the principle had no application anyway:

“[87] A statutory tribunal may be a tribunal to which the doctrine extends, but it depends upon whether or not in the exercise of its decision making process it finally decides a question arising between the parties. There is no doubt that the doctrine does not apply where a tribunal is making a mere administrative decision. The decision must be one made in respect to an issue between parties, after considering the evidence and argument.

[88] In my opinion, what the panel did, resulting in a finding made by it at the first informal hearing, does not amount to a final judgment between parties litigating an issue or cause. The fact was that the informal hearing did not involve and was not made in the course of any lis inter partes. There was no issue between the notifier and the doctor. The notifier notified the Board that she believed Dr Kabourakis may have engaged in unsatisfactory professional performance when treating her son that was unsatisfactory. By reason of s 25, the Board was bound to investigate the notification. It is not a question of parties litigating a cause. It is not a question of a lis. The informal hearing was not a judicial determination of an issue. The informal hearing did not decide any rights between parties. The findings of the panel were reviewable if an adverse finding was made by the medical practitioner. The members of the panel may not include a legal practitioner although there would be power to appoint a legal practitioner to the panel. The hearings are closed to the public and legal representation is not permitted. Further, the proceeding must be conducted with as little formality and technicality as possible, and the panel is not bound by the rules of evidence. There is no suggestion that evidence should be given on oath. All of these factors lead to the conclusion that the informal hearing panel did not make a final judgment between parties who were litigating an issue, which resulted in the establishment of a right.”

Tony Cavanough QC with Stephen Moloney for the doctor, and Mr Richard Tracey QC with Stephen Donaghue for the Board.

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