Update, 23 December 2009: Doubt is cast on the correctness of Hunt AJA’s comments by Hodgson JA, the other justices of appeal agreeing, in Council of the NSW Bar Association v A (2008) 72 NSWLR 236 at 249;  NSWCA 164 ().
Original post: The following passage from the NSW Court of Appeal’s decision in Lindsay v Health Care Complaints Commission  NSWCA 356 (Hunt AJA, others agreeing) casts some doubt on whether a medical disciplinary tribunal presided over by a judge had power to stay a disciplinary proceeding as an abuse of process. The issue arose in the context of which the legislation provided that “The members of the Tribunal are to conduct an inquiry into any complaint … referred to it”, and then, later “It is the duty of a Committee and the Tribunal to hear inquiries and appeals under this Act and to determine those inquiries and appeals expeditiously.” As the Court noted, “Both provisions express the obligation of the Tribunal to exercise that jurisdiction in unusually mandatory terms”.
“73 Neither of the parties to the present appeal sought to dispute the jurisdiction of the Tribunal to grant a stay of the proceedings before it on the basis that the proceedings were an abuse of process. However, it is by no means self-evident that the Tribunal does have the power to do so. No authority has been cited which upholds the existence of such a power in the Tribunal. In Gill v Walton (1991) 25 NSWLR 190 at 195, reference was made by this Court, without demur, to the fact that the Tribunal constituted under the Medical Practitioners Act 1938 had stayed the proceedings against one doctor after this Court had stayed the proceedings against two other doctors arising out of the same complaints. A similar reference was made by the High Court to that fact, again without demur, in Walton v Gardiner (1993) 177 CLR 378 at 385, 400. That was the appeal against the decision of this Court in Gill v Walton. See also Herron v Sheahan, Supreme Court (Maxwell J), 29 April 1987, unreported (at 3-4).
74 Australian superior courts of record possess an inherent power permanently to stay further proceedings before them which are an abuse of process: Jago v District Court (NSW) (1989) 168 CLR 23 at 25 et seq. Statutory courts such as the District Court have such power only if given to them expressly or by implication in their statute: Ibid at 38, 56. A Local Court magistrate conducting a summary trial of an information also has such a power: DPP v Shirvanian (1998) 44 NSWLR 129 at 134-137. In Grassby v The Queen (1989) 168 CLR 1, the High Court held (at 10, 18) that a magistrate conducting committal proceedings in the Local Court does not have that power. Such a magistrate performs an administrative or ministerial function, and not a judicial one (see 18-19).
75 The Tribunal is not a court in the strict sense (Walton v Gardiner at 395), although it has many features of a court. It has the power to deregister or suspend a medical practitioner (Medical Practice Act, s 64) and therefore to affect his or her rights. It has the power to fine (s 62) and to impose conditions on the medical practitioner’s registration (s 61). The Tribunal does therefore perform some judicial functions. The Chairperson may be a District Court judge (s 148), and s 150 appears to assume that only a judge may be the Chairperson. The District Court judge (described as the “judicial member”) is given the same protection and immunity as a judge of the Supreme Court (s 151). There is an analogy between the concept of abuse of a court’s process in relation to criminal proceedings and the concept of abuse of the Tribunal’s process in relation to disciplinary proceedings: Walton v Gardiner (at 395).
Division 3 Inquiries, appeals etc before the Tribunal
The members of the Tribunal are to conduct an inquiry into any complaint, matter or application and are to hear any appeal referred to it. No inquiry need be conducted into a complaint if the registered medical practitioner who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal.
161 Conduct of proceedings
(1) The Tribunal is to conduct proceedings on an inquiry or appeal as it thinks fit.
(4) Schedule 2 has effect with respect to the conduct of any inquiry and the hearing of any appeal by the Tribunal.
164 Adjournments and interlocutory orders
(1) The Tribunal may adjourn proceedings for any reason it thinks fit.
(2) The Tribunal may, during any proceedings, exercise any power or combination of powers conferred on the Tribunal by section 61 (General powers to caution, reprimand, counsel etc), except the power to caution or reprimand.
10 Expedition of inquiries and appeals
(1) It is the duty of a Committee and the Tribunal to hear inquiries and appeals under this Act and to determine those inquiries and appeals expeditiously.
(2) Without affecting the generality of subclause (1), a Committee or the Tribunal may postpone or adjourn proceedings before it as it thinks fit.
77 Neither s 159 nor clause 10 of Schedule 2 is merely a statement of the Tribunal’s specific jurisdiction to conduct (or hear) an inquiry into a complaint. Both provisions express the obligation of the Tribunal to exercise that jurisdiction in unusually mandatory terms, notwithstanding s 146 (the provision establishing the Tribunal) which, in subs (2), states in more general terms “The Tribunal has and may exercise the jurisdiction and functions conferred or imposed on it by or under this or any other Act” (I have added the emphasis). This Court has interpreted s 159 as imposing a duty on the Tribunal to conduct the inquiry; the Tribunal does not have a discretion: HCCC v Litchfield, Court of Appeal, 8 August 1997, unreported (at 10-11). The same approach has been taken in Victoria where the legislation is analogous, but not identical: XD v Johnson (2002) 6 VR 372 at –. The power to adjourn proceedings in s 164 does not imply a power to refuse to conduct (or hear) an inquiry on the basis that the complaint is an abuse of process. Section 161(1) does not add anything to the sum total of the other provisions.
78 There appears to be no need to imply a power in the Tribunal to stay its proceedings on the basis that they are an abuse of process when the Supreme Court has the power to stay those proceedings in such a case. This Court has held that the Supreme Court does have that power, under the exercise of its supervisory jurisdiction pursuant to s 23 of the Supreme Court Act 1970: Herron v McGregor (1986) 6 NSWLR 246 at 250-252; Gill v Walton at 201, 210 (these two cases arose out of the same matter, and may conveniently be grouped as “the Chelmsford cases”). The High Court (by majority) refused special leave to appeal in Herron v McGregor on the bases that it saw no reason to doubt the correctness of the conclusion reached by this Court in relation to the Supreme Court’s jurisdiction, and that for other reasons it was not a suitable vehicle in which to decide the issue of that jurisdiction (see (1993) 177 CLR 378 at 391). Because of the particular circumstances of delay surrounding the Chelmsford cases, the High Court subsequently declined to revisit the issue of this Court’s jurisdiction to stay proceedings in the Tribunal in Walton v Gardiner (at 390-391).
79 Nevertheless, when considering how the concept of abuse of process could be applied in an application to the Supreme Court to stay proceedings in the Tribunal, the majority in Walton v Gardiner was careful to proceed only on an assumption that the Supreme Court had jurisdiction to grant that relief (see at 395). The two justices who dissented in that case on the issue of this Court’s jurisdiction were of the view (at 406-408) that any jurisdiction possessed by the Supreme Court pursuant to s 23 of the Supreme Court Act was limited to ensuring that the Tribunal did not exceed its jurisdiction and perhaps to dealing with contempt of that Tribunal. They held that s 23 did not authorise the Supreme Court to determine whether the Tribunal should exercise its jurisdiction to hear a particular case where there had been an abuse of process.
80 In light of my conclusion in the present case that, assuming that the Tribunal had jurisdiction to entertain it, there was no error made by the Tribunal in rejecting the application for a stay, it has become unnecessary in this appeal for me to determine the issue of the Tribunal’s jurisdiction to stay its proceedings where they are an abuse of process. That jurisdiction has not, however, been referred to in this case without demur.
81 In Walton v Gardiner, the majority of the High Court held (at 395-396) that the nature of the Tribunal’s jurisdiction is essentially protective of the public. When an application is made to the Supreme Court to stay proceedings before the Tribunal as an abuse of process, therefore, the High Court held that there must be a weighing process involving a subjective balancing of various factors and considerations, just as in relation to criminal proceedings, but that consideration must necessarily be given to the protective character of the proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners. Relevant to that balancing process, the majority said (at 396-398), was whether there was prejudice suffered (in the nature of double jeopardy) by any attempt to re-litigate in the new proceedings the same issues which had already been permanently stayed in the earlier proceedings.
82 In my opinion, again assuming that the Tribunal has jurisdiction to grant a stay of its own proceedings on the basis of an abuse of process, this same approach would have to be adopted by it.”
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