Crowley v Holmes & Ors [2004] HCATrans 23 (13 February 2004)

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Crowley v Holmes & Ors [2004] HCATrans 23 (13 February 2004)

Last Updated: 23 February 2004

[2004] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M262 of 2003

B e t w e e n -

PAUL DAVID CROWLEY

Applicant

and

ALAN JOHN HOLMES (IN HIS CAPACITY AS THE DIRECTOR OF PROFESSIONAL SERVICES REVIEW)

First Respondent

GEOFFREY HIRST

Second Respondent

STEPHEN PHILLIPS

Third Respondent

DAVID ROSENTHAL

Fourth Respondent

HEALTH INSURANCE COMMISSION

Fifth Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2004, AT 12.41 PM

Copyright in the High Court of Australia

__________________

MR J.F. BLEECHMORE: If the Court pleases, I appear with my learned friend, MR I.M. HAYDEN, for the applicant. (instructed by Mulcahy’s)

MS F.P. HAMPEL, QC: If the Court please, I appear with my learned friend, MR S.J. MOLONEY, for the respondents. (instructed by Minter Ellison)

GUMMOW J: Yes, Mr Bleechmore.

MR BLEECHMORE: The central submission in this application is that the Full Court mischaracterised and misdescribed the conduct which was complained about, which I will refer to as the additional material, which was placed before the Committee through the investigative referral and thence into the adjudicative referral of the Director, and thence again to the Committee, by mischaracterising and misdescribing the material in a very significant manner.

The Full Court fell into error in reaching conclusions about its relevance and its appropriateness to be placed before the Committee and then, secondly, fell into error in its application of the rule relating to apprehended bias. We do not contend that the rule was misstated or the principle was misstated, but its application in a significant way, which has led to a situation where broad statements of principle relating to disciplinary tribunals are to be interpreted in the light of the material itself which appears in the judgment and will give rise, we say, to error in the future in the application of the case and its citation as a precedent.

HEYDON J: Is not this application very premature? If there had been a civil trial or a criminal trial in which these events had happened, it would not be possible to appeal to any court until the conclusion of the proceedings, would it? You cannot complain of bias - - -

MR BLEECHMORE: We would be criticised as having made the application prematurely. In fact, the criticism that is made of us is that we have made the application too late and we submit that the proper principle is that when you apprehend bias then you make the application straight away.

HEYDON J: What about Barton v Walker, which is a decision holding - it may be right or it may be wrong - that you cannot appeal against bias until an order has been made, or you cannot make an application complaining of bias until some order has been made against which you can appeal? That would be usually an order at the end of the proceeding.

MR BLEECHMORE: We would say consonant with the principle that we must be seen to have acted as closely as possible to the time at which we apprehend that bias, or the circumstances that give rise to it, and that this Committee should not go ahead with its mind, as we would say, poisoned by the reference to the prior conviction, the prior determination and the sanction in that.

We would say that the decision of the trial judge was appealable. The point has never been made that it was not appealable as far as we apprehend, and his decision was affirmed. We say that is an incorrect decision in circumstances where a grant of special leave should be granted because a very important point of general importance has been demonstrated and also a difference of opinion in the Federal Court as to the robustness or otherwise of - - -

GUMMOW J: What was the foundation of the Federal Court’s jurisdiction here? How did the matter get in the Federal Court, what section, what Act?

MR BLEECHMORE: Through a constitutional writ.

GUMMOW J: So it was 39B of the Judiciary Act, was it?

MR BLEECHMORE: That is so, your Honour. We sought writs in the nature of certiorari - - -

GUMMOW J: And injunctive relief, was it not?

MR BLEECHMORE: And injunctive relief. The additional material that we have complained about consists of two things, a table of statistics of Dr Crowley’s relating to his practice prior to - - -

GUMMOW J: What about going back to what Justice Heydon was putting to you? The other side of the coin really is section 96 of the Health Insurance Act and the last paragraph on page 54 makes a rather powerful point really.

MR BLEECHMORE: Which section is that, 106?

GUMMOW J: Page 54, paragraph 37.

MR BLEECHMORE: That is the point – I do not have it here – but the point that any objection as to bias ought to be made within seven days.

GUMMOW J: Yes, and was not.

MR BLEECHMORE: That was not a point - - -

GUMMOW J: There is a statutory regime about it.

MR BLEECHMORE: Yes, but the points about bias do not originate from some prior knowledge or acquaintanceship with a member of the Committee, or earlier hostile dealings or some prosaic matters of that kind. Here, they come from the adjudicative referral and at the time when section 96, that seven-day period, becomes relevant, the adjudicative referral need not have necessarily been provided and, in addition, we would say that that would not exclude the jurisdiction of the courts. That is an application made to the Director, as I say, for prosaic reasons of prior dealings between the person under review and the tribunal.

GUMMOW J: Now, Mr Bleechmore, in addition to this bias question, are there questions of statutory construction involved? Bias was only one of the matters dealt with - - -

MR BLEECHMORE: Not really, no.

GUMMOW J: Looking at the draft notice of appeal, it seems to be a bias case that we are being asked to take on.

MR BLEECHMORE: Yes. We earlier argued that it was invalid, but we do not press that argument.

GUMMOW J: Yes.

MR BLEECHMORE: So the table of - - -

GUMMOW J: Perhaps I should indicate we will be adjourning just before 12.55 and resuming at 1.45.

MR BLEECHMORE: The earlier material consisted of two elements, the table of services which indicated, it is fair to say – that appears at page 12 of the application book. That would enable inferences to be drawn fairly easily and rapidly that Dr Crowley’s pattern or high volume of services existed in a period before the period relevant to the referral. Now, while we object to any of the material which is not relevant we would concede it is easy to say or easy to see that in the course of the hearing that this material might come into relevance or become relevant because of the evidence given by Dr Crowley.

The evidence that he would give would be of exceptional circumstances, there being, as it were, a prima facie case of deemed inappropriate behaviour because the volume of his services on 20 days came into conflict with the 80/20 rule that there were 80 or more services provided on 20 days. So the only evidence, realistically, that is to be given is of exceptional circumstances.

So he would say, we foresee, that if he were to give evidence it would be of the matters that he is a rural doctor, that he has a patient ratio one in 10,000, that he has trouble attracting other people there. It may be that the Committee will then go back and, indeed, forward at other periods where those conditions which are described as exceptional circumstances did not exist so he would then have to explain why the volume remained the same in those two periods.

So we do see and concede that these matters can easily, although not necessarily, be brought into relevance, although we say that they should not, as a matter of course, appear in the adjudicative referral because they may not be relevant and they are prejudicial if the Committee makes the calculations and says, “Well, you’ve been doing this for years so we don’t have much sympathy for you”, that process of reasoning.

The material which is the subject of our real complaint is the material that was set forth in the judgment of the Full Court at page 45 - - -

GUMMOW J: Under the heading “THE ADDITIONAL MATERIAL”?

MR BLEECHMORE: Yes, your Honour, under the heading “CHRONOLOGICAL RECORD OF THIS INVESTIGATIVE REFERRAL”, which it is not. Nothing above the item for the 28 July can be described as a chronological record of this investigative referral. It can be seen by the Court that there are references to counselling in relation to the volume of rendered services in January and February 1993 and 1995, but the real problem arises with the inclusion of the material for November 1997. That shows that a final determination was made for an unspecified species of inappropriate behaviour.

The Committee would not know what it was. It cannot be relevant because they do not know what it was and they cannot say from here that it is similar. The earlier references contain references to the species of inappropriate behaviour, being the volume of rendered services. It is not contained here, so the Committee has before it what they know is a very serious – because of the penalties – species of inappropriate practice and they are given the information about the sanction in the deliberations of a statutory body where Parliament has been at great pains to separate out the fact-finding process, that of the Committee, from the dispositional process which is that of the determining authority, so this is of no conceivable relevance, we would submit, to the fact-finding process whether Dr Crowley in relation to certain services may have or did commit or was guilty of inappropriate practice.

So the reference to the sanction makes characterisations such as the Commission had similar concerns on other occasions inapposite because it goes well beyond this and the application of the similar fact rule could not possibly have any application to the penalty. To take an obvious example, if in a case of bag snatching the prosecution wanted to lead evidence of earlier incidents of bag snatching, he might be able to do that, but he would not be able to open it to the jury by saying that he did it on other occasions so you know it was him. He would not then be able to say he was sentenced to six months gaol rather than got a bond. That is, on any view of it, irrelevant and ought not to have been placed before a committee whose deliberations on the facts are hermetically sealed, as it were, from the dispositional aspect and the sanction-imposing aspects of legislation, which is educational in its nature, self-evidently correctional rather than primarily or even at all punitive.

GUMMOW J: We will hear the balance of your oral submissions at 1.45.

MR BLEECHMORE: As your Honours please.

AT 12.54 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.45 PM:

GUMMOW J: Yes, Mr Bleechmore.

MR BLEECHMORE: Your Honour, the Committee would know in relation to the sanction that it was a serious matter indeed because it would have proceeded through the investigative referral stage to the Director who would then have made a decision to make an adjudicative referral and refer the matter to a committee rather than, for example, make an agreement, which under section 92 he can do in which the practitioner accepts a reprimand or pays back Medicare benefits. But this has gone beyond that stage to the Committee which then has made a final report to the determining authority which has then imposed a sanction of last resort, we would submit, in the form of disqualification.

That it was in fact mischaracterised, appears at several points. If it had been mischaracterised once, it perhaps would not matter, because the fact that the Full Court, we would respectfully say, so consistently failed to understand, we would say, the seriousness of it is, indeed, significant. The first passage is at page 46 at line 16 that:

The appellant is concerned that the entry –

including the one that I have referred to –

disclose that the Commission had previously formed adverse views concerning his conduct on occasions –

We would say our concerns went beyond that. Then at page 49 at line 15:

While the information in section D may itself be too imprecise to be of any use –

we would say it was much more than that –

the Committee might infer that the Committee’s concerns on earlier occasions suggest that the appellant’s prior conduct could be relevant –

Apart from being a minimisation of the prior conduct, we would say that mischaracterisation led the Full Court into the error of applying Holmes v Mercado, an earlier decision of the Full Court, in which a table of statistics and a reference to counselling were held to be relevant and that, we say, is a far cry from a reference to a prior determination of the determining authority and the sanction. The next passage is at page 52 at line 40 where the Full Court are considering the question of apprehended bias, and state the matter this way, at line 40:

The question is whether such an observer might doubt the impartiality of the Committee because it knows that:

in 1993, 1995 and 1997 the Commission considered that the appellant had, or may have –

“may have” has nothing to do with it, we would say –

engaged in conduct in some way similar to that presently –

we do not know as to the major item, whether it was similar or not, and again, there is the question of the sanction.

Now, those statements give rise – it is in the context of an understanding of the real nature of this material which appears at page 45 that the Court makes the general statements under the rubric “use of the additional material”, the first of which is that it is primary for the Committee to identify the material on which it should rely. If that means that they can go and investigate prior convictions and the sanctions that followed upon conviction, then that cannot be the law. That would be an attenuation of the supervisory jurisdiction and the conferral of autonomy on a committee that takes the matter far beyond the existing law, we would say.

In relation to the second question of bias, we have conceded that the proper test has been applied. Many cases indicate that it might, and there is a difference between the test here and in England, and it is a case of might apprehend, that there might not be able to bring an impartial mind to bear. That is true, but we say that when the test is applied to this, the very stringency of the test, which the Court has insisted upon in cases such as Jia Le Geng and also Ebner v the Official Trustee in which your Honour Justice Gummow, together with the Chief Justice, Justices McHugh and Hayne, indicated that it was a stringent test and that even the appearance of a departure from the principle is prohibited, and we would say that, therefore, the application of the test, when it is considered in its true nature as involving a serious sanction, which is on any view of it irrelevant, if it is really a stringent test then that objective test which goes to the appearance of matters should determine the matter another way.

The assurances that have been given by the Committee that they would not consider the matter, which they gave to the court below, are not relevant, we would say, to the appearance of the matter. We would prefer, and we would submit that the statements of Justice Heerey in Mercado v Holmes which are set forth by the Full Court in Holmes v Mercado, which is before the Court - it is one of the two items handed up on behalf of the applicant - if I could briefly take the Court to the passage at page 168 where what Justice Heerey was dealing with was a different case, as I have indicated. If there was merely a table of statistics in this case, we would not
be here, but such matter we have conceded could be brought into relevance. About a third of the way down, his Honour Justice Heerey said:

In the present case, the (now) admittedly extraneous and irrelevant material is of a kind which has always attracted the law’s anxious scrutiny. If a jury or lay tribunal has to determine whether a person engaged in some form of wrongful conduct on a given occasion, evidence that the person engaged in similar conduct on other occasions is regarded axiomatically as prejudicial. Long established canons of fairness recognise the inherent danger involved in the mode of reasoning – common enough –

et cetera. Those – not quite apocalyptic way of describing it, but indicates that it is deeply rooted in aspects of the rule of law.

The final point, your Honours, is that as appears from the reasons of his Honour Justice Madgwick which are at page 37, the question of whether one can rely on lay persons who form the opinion that something is irrelevant to put it out of their minds is the subject of a diversity of opinion in the Federal Court of this country. His Honour says:

Were it not for the authority of –

the earlier case, which deals with, we would say, with quite another case, because tables of statistics are something which may be relevant and can be put, if they decide they are not relevant, out of their mind. A prior conviction and a sanction cannot, we would say, or there is a possibility – there might be a possibility, a real possibility, that he would not be able to bring or they would not be able to bring an impartial mind to bear.

So we rely upon that and what Justice Heerey says in the earlier case of Mercado, again at page 168, to indicate that there is a diversity of view. Whether laymen can be trusted depends upon the depth of the prejudice. If your Honours please.

GUMMOW J: We do not need to call on you, Ms Hampel.

We are not satisfied that there are sufficient prospects of success in demonstrating error in the understanding or application of principle in this matter. Accordingly, special leave is refused.

Do you ask for costs?

MS HAMPEL: Yes.

GUMMOW J: Yes, refused with costs. We will now adjourn to reconstitute.

AT 1.53 PM THE MATTER WAS CONCLUDED