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James v Medical Board of South Australia and Keogh [2006] SASC 267

Supreme Court of South Australia - Full Court: Civil

30 August 2006

[This version of the judgment has been edited by Dr Robert N Moles]

Bleby J

The facts have been adequately set out in the reasons of Anderson J.  I will not repeat them. This Court will only entertain judicial review proceedings in the nature of prohibition where a statutory body, having legal authority to act judicially, acts or proposes to act in excess of its legal authority. The existence of a mere possibility of the body exceeding its jurisdiction is not enough.

The Medical Board constituted under the Medical Practitioners Act 1983 has jurisdiction to hear a complaint alleging unprofessional conduct on the part of a medical practitioner when laid by a person who is aggrieved by conduct of the medical practitioner. Mr Keogh appears to be such a person. For reasons given by Anderson J the Board also has jurisdiction to determine whether proceedings before it constitute an abuse of the process of the Board. The Board may also consider that a complaint is frivolous or vexatious. Any such application, if made to the Board, is yet to be heard and determined by it. There are therefore no grounds on which this Court can properly intervene to prevent the Board from exercising its jurisdiction.

While there is an alternative application for declaratory relief or relief by way of injunction to restrain Mr Keogh from prosecuting his complaint before the Board, the same considerations should apply, and that relief should be refused. 

I also agree with Anderson J that an allegation of unprofessional conduct on the part of a medical practitioner, even though the conduct may include what the medical practitioner has said while giving evidence in a court of law or before a tribunal where a witness is afforded the same protection as a witness in proceedings in this Court, differs from an action for damages against the medical practitioner based on what he said in court. The latter situation plainly attracts the conventional immunity of witnesses. However, there is a much wider public interest to be served by disciplinary proceedings such as those specified by the Medical Practitioners Act. That is to ensure that only suitably qualified persons are able to practise as medical practitioners and that appropriate standards of professional conduct are observed by medical practitioners.

While the immunity of witnesses has recently been extended in the UK to disciplinary proceedings by the decision of a single Judge in Meadow v General Medical Council, I am not persuaded that that is or should be the law in this country.

I agree with Anderson J that the action should be dismissed.

Gray J

I would dismiss this action. I do not wish to add to the reasons of Bleby and Anderson JJ.

Anderson J

This is an application made by the plaintiff, Dr James. In his statement of claim he seeks orders against both the first defendant, the Medical Board of South Australia (“the Board”) and the second defendant, Henry Vincent Keogh. A Master referred this matter to the Full Court.

The plaintiff seeks the following orders:

1. An order in the nature of prohibition restraining the First Defendant from hearing, taking any further step in or entertaining any further proceeding upon the complaints of the Second Defendant laid directly before the First Defendant purportedly pursuant to section54(1)(d) of the Medical Practitioners Act 1983 alleging unprofessional conduct on the part of the Plaintiff the subject of the documents lodged with the First Defendant described “further complaint”, “further complaint” and “supplementary complaint” dated 15 February 2005 and 21 April 2005 respectively (collectively “the complaints”).

2. In the alternative to paragraph 1, an order in the nature of mandamus directing the First Defendant to dismiss, or in the alternative, to permanently stay, the Complaints.

3. Further or in the alternative to paragraphs 1 and 2, a declaration that the Complaints and/or the continued prosecution of the same by the Second Defendant constitute an abuse of the process of  this Honourable Court and/or in the alternative are ultra vires.   Section 54(1)(d) of the Medical Practitioners Act 1983.

4. In the alternative that an injunction be granted forever restraining the Second Defendant from prosecuting the complaints or any complaint to or in the First Defendant of unprofessional conduct on the part of the Plaintiff arising out of the facts, matters and circumstances the subject of the Complaints

5. The First and Second Defendants pay the Plaintiff’s costs of and incidental to this proceeding.

This matter proceeded for argument before the Full Court on Tuesday 9 May 2006.  It must be pointed out that this is not an appeal and that this court was receiving the evidence by way of affidavits and exhibits on the original proceedings.

Facts

In 1994 Dr James was a forensic pathologist reporting to the then Chief Pathologist at the Forensic Science Centre, Dr Colin Manock. At that time, Dr Manock had been asked to perform the initial coronial post mortem into the death of Ms Anna Jane Cheney. The second defendant was charged with her murder.

Later in the same year, by the time the committal proceedings against Mr Keogh had been completed, Mr RofeQC, then Director of Public Prosecutions, contacted Dr James regarding some issues which were of concern to both prosecution and defence counsel.  Dr James was asked to read through the depositions and give opinions on various matters.  Dr James, in the course of that work reviewed:

a) the post-mortem report of Dr Manock 29/4/04;
b) ten histology slides;
c) three bags of photographs; and
d) a Toxicology report by Peter Felgate.

After his review, Dr James concluded that the “post-mortem features were consistent with fresh water drowning and this appears to have been the cause of death.” He further stated that it was not usual for a healthy adult to drown in the bath and that an underlying cause should be sought. He also, and more importantly, opined that in relation to some bruises, “there appears to be a line of 7 bruises along the right shin, 3 bruises above the left ankle, 2 bruises to the back of the head above the neck and one large bruise to the right of the top of the head.” These bruises appeared to be recent and raised the possibility of grip marks and assisted drowning.

Dr James was then subpoenaed to give evidence at the first trial of Mr Keogh in early 1995. His evidence was of course expert evidence and represented his opinions as to the cause of death of Ms Cheney based on observations made by him from the records of the post mortem which had been conducted by Dr Manock. At that trial he was cross-examined by Mr Keogh’s counsel, Mr David QC. The jury was unable to agree on a verdict and a retrial was ordered.

In mid-1995 Mr Keogh’s second trial commenced. Dr James was again called to give evidence for the prosecution.  On this occasion the same general evidence was given by Dr James and he was again cross-examined by Mr David. At the conclusion of this trial, Mr Keogh was found guilty of the murder of MsCheney. He was later sentenced to life imprisonment with a non-parole period of 25 years.

In December 2000, Dr James received a letter from the Director of Public Prosecutions enclosing a copy of a letter received by the Attorney-General from a MsFrances BedfordMP dated 7 December 2000. Mr Rofe requested Dr James to provide a short response on behalf of the Forensic Science Centre.  Later in October 2001, Mr Rofe again asked Dr James to comment on matters raised in a television program.

In about June 2004, Dr James became aware that Mr Keogh had made a complaint against Dr Manock to the Board. At the request of Dr Manock’s solicitors, Dr James swore an affidavit detailing the nature of his involvement in the trial of Mr Keogh and his interpretation of the histological evidence produced by Dr Manock and including any discrepancies in his interpretation of the evidence as compared with the interpretation given by Dr Manock. Dr James then attended the hearing of the complaint against Dr Manock and gave evidence before the Board. At the hearing he was cross-examined by Mr BorickQC, counsel for Mr Keogh. It appears that he attended this Board hearing voluntarily.

On 25 November 2004, Dr James received a letter from the Board enclosing a copy of a further complaint made by Mr Keogh against Dr Manock. The complaint now included additional allegations against Dr James (“the First Further Complaint”).  This complaint alleged inconsistencies between the evidence given by Dr James at the second trial of Mr Keogh and the evidence that he gave at the hearing of Mr Keogh’s complaint against Dr Manock before the Board.   The complaint alleged that Dr James’ conduct in giving evidence both before the Board and in the Supreme Court trial was improper, unethical and incompetent within the meaning of “unprofessional conduct” as defined in s5(1) of the Medical Practitioners Act 1983. 

The complaint states:

The Complaint (Further Complaint)

ROSS ALEXANDER JAMES

FIRST PARTICULAR

Ross Alexander James gave sworn evidence at the Second Trial of the Complainant.  In that evidence he stated that when he looked at the histological slides through the microscope, which slides were said to contain tissues taken from bruises on the left leg of the deceased, all the bruises appeared to be the same.

SECOND PARTICULAR

Ross Alexander James subsequently gave sworn evidence before the Medical Board of South Australia.  In that evidence he stated in relation to those slides, that when he looked at them through the microscope, the mark said to have been a bruise on the inner side of the left leg was different in appearance to the appearance of the tissue in the other slides.

THIRD PARTICULAR

The evidence that Ross Alexander James gave to the jury at the Second Trial of the Complainant, about the appearance of the said slides, was inconsistent or incomplete in a material particular with the evidence given to the Medical Board.

FOURTH PARTICULAR

Ross Alexander James has and has had a professional obligation to reveal all of the relevant facts of the case concerning the Complainant. In the course of giving his sworn evidence at the Second Trial of the Complainant, he failed to do so.

FIFTH PARTICULAR

Ross Alexander James gave sworn evidence at the Second Trial of the Complainant that when he looked at the slides through the microscope, which slides were said to have contained tissues from the legs of the deceased, he referred to each of the slides he looked at as having skin with bruising.

SIXTH PARTICULAR

Ross Alexander James gave sworn evidence to the Medical Board of South Australia in his affidavit and in his oral examination that when he looked at the slides containing tissue, said to have been taken from the left leg of the deceased, that one slide when looked at under the microscope contained no evidence of bruising.

SEVENTH PARTICULAR

Ross Alexander James acknowledged that according to Colin Henry Manock one of the slides he looked at contained tissue said to have been taken from the inner side of the left leg of the deceased.

EIGHTH PARTICULAR

Ross Alexander James’ failure to reveal to the jury the true appearance of the tissue said to have come from the mark on the inner side of the left leg was improper and unethical within the meaning and definition of unprofessional conduct referred to.

NINTH PARTICULAR

Ross Alexander James’ failure to acknowledge to the Medical Board of South Australia that the sworn evidence he gave at the Second Trial of the Complainant was inconsistent or incomplete in a material particular was improper and unethical conduct within the meaning and definition of unprofessional conduct referred to.

TENTH PARTICULAR

Ross Alexander James’ failure to explain to the Medical Board of South Australia the inconsistency in the sworn evidence he gave at the Second Trial of the Complainant and the sworn evidence he gave upon the same matter before the Medical Board of South Australia is improper and unethical conduct within the meaning and definition of unprofessional conduct referred to.

ELEVENTH PARTICULAR

The Director of Public Prosecutions at the Second Trial of the Complainant informed the jury at the trial that the marks, said to have been bruises upon the left leg of the deceased, were all made at the same time and were therefore the one positive indication of murder.

The submission by the Director of Public Prosecutions was based upon the evidence which had been given by Ross Alexander James, and was known or should have been known by Ross Alexander James, at the time at which he gave that evidence, to be incorrect.

TWELFTH PARTICULAR

Ross Alexander James is not excused from complying with his professional obligation on the basis that he did not think it to be particularly relevant.

Dr James responded, by letter, to this complaint. On 7 February 2005 he received a letter from the Board advising that the Registrar’s investigation into the first further complaint had concluded and had “not revealed any evidence which warranted the matter being laid before the Medical Board.”

Again in mid-February Dr James received notice that Mr Borick, on behalf of Mr Keogh, was complaining of the procedure adopted by the Board in relation to the first further complaint. Dr James was asked by the Board to comment on Mr Borick’s complaint (“the second further complaint”). On 7 March 2005 Dr James wrote a letter to the Board in response to that complaint.

On 27 April 2005, Dr James received further notice from the Board explaining that it had received a further complaint by Mr Borick on behalf of Mr Keogh. (“the supplementary complaint”).  This supplementary complaint sought to re-agitate those issues expounded in the first and second further complaint and in addition provided an additional six grounds of complaint. It is not necessary for the purpose of this matter to set out these grounds except to say that they are all related generally to the matters complained of earlier.

By a letter dated 12 October 2005, the Board advised Dr James’ solicitors that it was going to conduct a pre-hearing conference in relation to Mr Keogh’s complaints. Dr James then issued these proceedings.

The essence of Dr James’ application before this court is that he says that he has now been asked eight times to clarify certain aspects of the pathological evidence on which the prosecution case was based. It is asserted that each of Mr Keogh’s complaints has been considered and addressed by Dr James and has also been considered by the Board. The response was communicated to Mr Keogh’s solicitors or representatives. Dr James has been cross-examined on three occasions by MrBorick. Dr James is now seeking orders preventing Mr Keogh from proceeding with his complaint on the basis that any further “prosecution” is contrary to the principle of witness immunity and is an abuse of process.  It is said to be an abuse because the proceedings before the Board are alleged to be for an ancillary or collateral purpose.

The Petition and Other Relevant Documents

For some time now Mr Keogh has been petitioning the Governor, as the representative of her Majesty, for the exercise of mercy pursuant to s369 of the Criminal Law Consolidation Act 1935.  As a result of such a petition, the Attorney-General may, if he thinks fit, refer the matter to the Full Court. We were informed that the Attorney-General is awaiting advice from the Solicitor-General.

At the close of argument, the court ordered MrBorick to provide to the court the various petitions that have been filed with the Attorney-General as well as the relevant documents that have been filed in support of the petitions.

The petitions and seven volumes of other relevant documents were produced to the court. I have reviewed the contents of these volumes and make the following observations.

There are three versions of the petition which have been presented to the Attorney-General. They detail the petitioner’s concerns relating mainly to the findings of Dr Manock, the evidence given by Dr Manock in both trials, and the findings by the Coroner in the “Infants Death” inquest relating to Dr Manock’s failure to “achieve the aims of forensic autopsy”.

There are numerous affidavits from a number of different forensic pathologists.  Generally, these affidavits contain each individual’s concern about the practice and procedures adopted by Dr Manock and the subsequent conclusions drawn by Dr Manock. 

One volume of documents primarily focuses upon general pathology issues. These documents include those relevant to autopsy standards and practice, articles on “Drowning Cases” and “Sudden Deaths in Adults”, three references which provide a summary of the evidence given to the Board by Dr Manock and Dr James relating to the cause and manner of death, as well as a number of evidentiary inconsistencies between the evidence given in both trials and before the Board.  There are also a number of documents relating to Dr James’ concession that he did not agree with Dr Manock’s finding in relation to the tissue sample taken and found by Dr Manock to be a medial bruise. In cross-examination before the Board he stated, “I can’t convince myself that that’s earned the description of a bruise.”

In another volume there is a letter to the Solicitor-General dated 14 February 2005, explaining Mr Keogh’s position at that time. In this volume there are two sub-headings, which relate specifically to Dr James. These are “Did James support Dr Manock – and why was he consulted?” and “Dr James – his Notes.” The letter also contains assertions that Mr Keogh believes both Dr Manock and Dr James to have misled both the jury and the appellate court in relation to two distinct issues. These are the appearance and possible age of the “bruises” and secondly, the alleged differential staining, which was seen only by Dr Manock.

There is another volume of documents relevant to the legal arguments advanced by the petitioner. It includes claims that there has been a miscarriage of justice. These claims have been put to the Solicitor General on the basis that “there is overwhelming authority which requires him to advise the Attorney-General that the petition should be referred to the Court. In the event that the Solicitor General advises the Attorney-General otherwise, the authorities referred to will be used to support an application that the appeal process should be re-opened.”

From my review of the petitions and the relevant annexures, it seems apparent that if the Board were to find Dr James guilty of unprofessional conduct relating to his conduct in preparing for and giving evidence at Mr Keogh’s second trial, that finding might potentially provide further support for the petitioner’s concerns regarding the sufficiency of the evidence to justify a finding of guilt beyond reasonable doubt.

With that summary of the nature of the petitions in mind I move to consider how it is argued that the proceedings before the Board are an abuse of process.

The Plaintiff’s Argument

Mr Bowler appeared for the Board and indicated that his instructions were that the Board did not wish to be heard on the application other than if there was an application for costs against it.  In all other instances the Board would abide any orders made by the court. He did not seek the leave of the court to withdraw.

Mr Abbott QC, counsel for the plaintiff, relied on the affidavit material filed on behalf of Dr James.  He submitted that the complaints should be struck out on the basis that “any proceedings which attack the finality of decisions of a superior court of record are, unless they fall within certain very limited exceptions, struck out as an abuse of process of the court.” In the alternative, Mr Abbottsubmitted that Dr James was immune from suit, having regard to the ordinary principles of witness immunity, and that the orders sought should be made accordingly.

Collateral Purpose – Abuse of Process

Mr Abbott argued that the dominant purpose of the complaints before the Board was to lay a basis for an attack on the guilty verdict of the jury in the second trial.  He argued that, using the “dominant purpose” test, it was therefore an abuse of process and referred to some authorities to support his submissions. 

Hunter v Chief Constable of West Midlands [1982] AC 529 is regarded as a leading authority on abuse of process. Hunterinvolved persons who were convicted of terrorist offences.  They claimed that alleged “confessions” were not voluntary in that the statements were made under duress. Following their convictions, one of them made those same allegations in civil proceedings against the police. It was held that the same issue in the civil proceedings could not be raised because it had been dealt with in the criminal trial. Their Lordships reasoned that the standard of proof was different and therefore it was possible that there could be two inconsistent rulings. In those circumstances the civil proceedings amounted to a collateral attack on the verdict of the jury and was an abuse of process.

Lord Diplock said at 541:

"The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made."

The Court of Appeal in Smith v Linskills[1996] 2 All ER 353 referred to the Hunter decision. 

Smith was a convicted burglar who served his sentence and then brought civil proceedings against his solicitors. He claimed damages for negligence by the solicitors in the preparation and conduct of his defence. He claimed that he had no ulterior motive because he had served his time.

The court held that an ulterior motive on the part of a party was not a necessary ingredient for holding that proceedings were an abuse of process. The court said however, that where an ulterior motive was shown to be present, that provided strong grounds for finding an abuse. The court said at 359:

"It was argued for MrSmith that these proceedings were not an abuse because it had not been found that his real purpose in bringing them was to attack his conviction.  Since he has now served his sentence (unlike the intending plaintiff in Hunter) his only and genuine purpose is to recover damages for professional negligence. That is, it is said, distinguishes the case from Hunter."

"It is certainly true that in his speech in Hunter [1983] 3 All ER 727 at 733, [1982] AC 529 at 541 Lord Diplock attached considerable significance to the ulterior purpose which lay behind the proceedings brought by the intending plaintiff in that case. We have no doubt at all but that the existence of such an ulterior motive provides a strong and additional ground for holding proceedings to be an abuse. The question is whether such an ulterior motive is a necessary ingredient of abuse. In our judgment it is not.  We consider that the law was accurately stated by Ralph Gibson LJ in Walpole [1994] 1 All ER 385 at 396, [1994] QB 106 at 120 when he said:"

"I am unable to attach any decisive importance to the point about dominant purpose upon which [counsel for the plaintiffs] relied. In Hunter’s case ([1981] 3 All ER 727, [1982] AC 529) the collateral attack upon the final decision of BridgeJ on the voir dire was an abuse of process because based upon no sufficient fresh evidence. The fact that the purpose of the plaintiffs was to provide themselves with an argument upon which to attack the true validity of their convictions supported the conclusion that those proceedings amounted to an abuse of process; but it seems clear to me that, if their purpose had been the apparently more acceptable aim of recovering damages for the injuries which they claimed were inflicted by the police, the proceedings would unquestionably have remained an abuse of process because it constituted a collateral attack upon a final decision which was manifestly unfair to the defendants and because it was such as to bring the administration of justice into disrepute. No doubt, when it is present, some collateral purpose on the part of the plaintiff, other than the pursuit of his remedy at law, will be relevant to the assessment of the case and to the exercise of the court’s discretion for the purpose of deciding whether it is shown so clearly to be an abuse of process that the proceedings should be struck out. If, however, it is clearly shown that the plaintiff’s claim is a collateral attack upon a final Judgment within the principle stated and applied in Hunter’s case, then the simple purity of his purpose in seeking financial damages alone would not save his action."

"We agree. The rule with which we are here concerned rests on public policy. The basis of that public policy, further considered below, is the undesirable effect of relitigating issues such as this".

Finally, in the discussion concerning Lord Diplock’s statement in Hunter and in relation to general considerations of public policy, the court said at 362:

"We cannot of course shut out eyes to the possibility that a criminal defendant may be wrongly convicted, perhaps because his defence was ineptly prepared or conducted.  When that occurs, it represents an obvious and serious injustice.  There are two possible solutions.  One is to relax the present restraint on seeking to establish that injustice by civil action.  The other is to ensure that, in appropriate cases, the conviction itself can be reviewed.  It seems to us clear that it is this second solution which has, over the past century, been favoured: by giving a criminal defendant a right of appeal; by providing a relatively low standard for the admission of fresh evidence on appeal; by empowering the standard for the admission of fresh evidence on appeal; by empowering the appellate court to order a new trial; by giving the Home Secretary power to refer a case back to the Court of Appeal; and by proposals to establish a new review body."

Mr Abbott also referred to Rogers v R (1994) 181 CLR 251 as an example of a case which illustrated the wide and varied application of the principle of abuse of process. 

The headnote in Rogers adequately sets out the circumstances:

"At a trial in 1989 on an indictment containing four counts of armed robbery, the prosecution sought to rely on admissions in three of four records of interview made by the accused.  The first and second records contained admissions concerning counts 1 and 2. The fourth contained admissions concerning counts 3 and 4. The judge rejected the tender on the ground that the records were not made voluntarily. The accused was acquitted on counts 1 and 2 and convicted on counts 3 and 4. In 1992 he was indicted on a further eight counts of armed robbery. On the trial the prosecution proposed to rely on the fourth record of interview to support its case on six of the counts, and on the third record in support of the fourth count."

Mason CJ was in the majority and held that the tender of records of interview amounted to a direct challenge to the earlier determination and that in those circumstances was an abuse of process.

Mr Abbott directed the court to a passage in the judgment of Mason CJ at 255 as follows:

"The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party’s genuine purpose to obtain the relief sought in the second proceedings.  The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories (25). Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process."

"Williams v. Spautz is a case in point. Although the majority judgment concluded that there was, in that case, an abuse of process consisting in the initiation of proceedings for an ulterior and improper purpose, the majority recognized that the concept extends beyond use of court processes for ulterior purposes to the use of such processes so as to cause vexation or oppression.  In Walton v. Gardiner it was pointed out that the majority judgment contained nothing which supported the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing.  In that case, Mason C.J., Deane and Dawson JJ. stated that the inherent jurisdiction of a superior court to stay its proceedings for abuse of process:"

"extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness."

"Their Honours went on to say:"

"[P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate a new case which had already been disposed of by earlier proceedings."

The references above were used by Mr Abbott as part of his submission that the complaint to the Board in this matter was instituted as a means of reviewing Mr Keogh’s conviction because he had exhausted all other avenues to overturn his conviction.  In other words, we were asked to find that the allegation of unprofessional conduct made against Dr James was part of a process to ultimately establish that Dr James’ evidence at the trial should not have been relied upon. 

It is by no means certain that this is an abuse of process, even though the subject matter of the various petitions and the details of the complaint against Dr James replicate the arguments which were used in attempts to overturn the conviction.

It is my view that all the submissions put to us regarding abuse of process can just as easily be put to the Board providing that the Board has jurisdiction to deal with such matters.  The submissions have not at this stage been put to the Board.  We are therefore being asked to pre-empt any decision by the Board as to an alleged abuse of process.  It was argued that this court, having overall supervisory control over the Board, should therefore make the decision as to whether the complaints against Dr James amount to an abuse of process. 

I will now deal with the question of whether the Board has within its power and jurisdiction the ability to deal with an argument alleging an abuse of process.  If it has the power, then in my view the Board should deal with the argument.

The Medical Board

It is necessary to analyse the jurisdiction and powers of the Board. In general terms the Board has, in my view, an implied power to control its own proceedings. In fact, in the complaint made by Mr Keogh against Dr Manock, the Board heard argument presented to it on behalf of Dr Manock to the effect that the complaint was vexatious because it was brought for a collateral purpose.

In its reasons for decision published on 22 June 2005 in the matter of a complaint by Henry Vincent Keogh against Colin Henry Manock, the Board said:

17 It was contended by Mr Swan that the complaint had been made for a wholly collateral purpose, being to support a campaign, which was already in the public arena, to have Mr Keogh’s position reviewed to his benefit either by receiving a pardon or some other amelioration of his sentence. There is some doubt whether the Board has inherent powers to prevent an abuse of its processes.  However, there may be an implied power to stay proceedings as an abuse of process.  See MBSA v C (Medical Practitioners Professional Conduct Tribunal unreported 30 August 2000, judgment [2000] SADC 103) Jackson v Sterling (1987) 162 CLR 612, 623-624.

18. Section 54(2)(a) relieves the Board from holding an inquiry if it considers that the complaint is vexatious. It has been held that vexatious proceedings would usually be regarded as an abuse of process. See Attorney-General v Solomon (1987) 8 NSWLR 667 at 673-674.  With some reservation, the Board has decided, that whilst it may well be that it is being used as a vehicle to agitate for Mr Keogh’s release, he is a person who has a genuine grievance concerning the conduct of Dr Manock, which he regards as unprofessional, and having contributed to his present situation.
See Attorney-General of the Gambia v N’Jie [1961] AC 617 at 634.

In my view the Board was correct in the way it dealt with that aspect of the matter in the Manock complaint. I can see no reason why the Board can not stay proceedings if it regards those proceedings as an abuse of process. 

Disciplinary tribunals such as the Board and the Legal Practitioners Disciplinary Tribunal are vested with implied powers to control all aspects of procedure which relate to procedural fairness. That of course is subject to the overriding supervisory power of the Supreme Court. It is my view that an allegation of an abuse of process comes within the implied powers of the Board.

Mr J R S Forbes, in his text book Disciplinary Tribunals (2nd Edition) at page 147, paragraph 12.13 states as follows:

"The courts of law have inherent power to see that their processes are not abused. One application of the ‘abuse of process’ doctrine is an order dismissing or permanently staying an action which is so long delayed that the defendant cannot be expected to assemble a case and make effective use of the right to be heard. Frivolous or vexatious proceedings may be treated in the same way. The courts have extended the principle to prevent abuse of disciplinary proceedings and Tribunals may apply it themselves."

The author cites the case of Re Ross [1995] 1 Qd R 319 as authority for the proposition that tribunals may stay their own proceedings.  Re Ross in turn considered two decisions in New South Wales, namely, Herron v McGregor (1986) 6 NSWLR 246 at 267 and Jago v The District Court of New South Wales (1989) 168 CLR 23.

McHugh JA (as he then was) said at 251 in Herron’s case:

"In the absence of a contrary decision of the High Court on the point I think that this court, as a superior court of justice, has inherent power to prevent an abuse of process in instituting or continuing proceedings in both civil and criminal cases. It is not necessary in the present case to determine whether the Disciplinary Tribunal itself had jurisdiction to stay the proceedings before it. I am strongly of the opinion that not only has this court the inherent power to stay its own civil and criminal proceedings for abuse of process, but its general supervising and protective power extends to protecting inferior courts and Tribunals from abuse of their procedure in relation to civil, criminal and disciplinary matters."

The decision of the High Court in Walton v Gardiner (1992) 177 CLR 378 also assists in determining the question of whether tribunals have power to stay their own proceedings. This decision follows on from the earlier decision in Herron v McGregor.  The facts are that there were three medical practitioners including Herron who were the subjects of complaints to the Medical Tribunal. The New South Wales Court of Appeal had ordered permanent stays against two of the practitioners on the ground that the complaints were an abuse of process.

However, The Medical Tribunal itself stayed the proceedings against the third practitioner. The matter eventually came before the High Court after a Royal Commission which was then followed by fresh complaints which the Court of Appeal also stayed as being an abuse of process. The High Court upheld these stay orders.

The joint judgment of Mason CJ, and Deane and Dawson JJ records at page 385:

"After the Court of Appeal’s decision in Herron v. McGregor, the Tribunal itself stayed the earlier proceedings against Dr Gardiner. It has not been suggested that Dr Gardiner’s case for a stay of the present proceedings is a weaker one that that of Dr Herron or Dr Gill by reason of the fact that the earlier proceedings against him were stayed by the Tribunal, and not by the Court of Appeal."

In Walton v Gardiner the High Court is effectively saying that the Medical Tribunal had the power to stay its own proceedings in the event of an abuse of process. It is persuasive that the tribunal’s own stay is treated on the same basis as the stay ordered by the Court of Appeal.

It seems to me therefore that the reasoning of the courts and indeed of the Board in the Manock matter, leads to the conclusion that the Board does have, as part of its jurisdiction, an implied power to deal with an abuse of process argument.

It is my conclusion that there is no reason why the argument regarding abuse of process cannot and, in the circumstances of this matter, should not be put to the Board. The argument should be put to the Board because it is part of the jurisdiction of the Board to deal with such matters.  If the parties are dissatisfied with the decision of the Board they can bring the matter before this court by way of Judicial Review.

Immunity

The second aspect of Mr Abbott’s argument relates to an immunity that he argues Dr James has by virtue of his role in giving evidence as an expert witness in the trial of Mr Keogh, and also because he gave evidence before the Board in relation to the complaint issued against Dr Manock.

Witness immunity exists because there is a public policy in ensuring that witnesses give evidence in an uninhibited way and also to avoid multiplicity of suits. Lord Hoffman in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 states at 208 that witness immunity rule “is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say.”

Witness immunity is such a fundamental legal principle that there are only very limited exceptions to the general rule. Such exceptions are perjury and perverting the course of justice.

Apart from the common law principles in relation to immunity, s16(4) of the Medical Practitioners Act 1983 reads:

"A person who appears as a witness before the Board has the same protection as a witness in proceedings before the Supreme Court".

Further, s63(4) provides similarly for a person who appears as a witness before the tribunal.  It is clear that if this objective is to be achieved Dr James would be immune from any negligence suit that Mr Keogh might bring. The statute provides further protection for Dr James insofar that he has an immunity from suit for any evidence given before the Board in any of its hearings. Mr Keogh could not, in those circumstances, bring a personal action against Dr James.

That raises two matters. First, what is the unprofessional conduct alleged?  Is the unprofessional conduct alleged related to the evidence given by Dr James either in the Supreme Court or before the Board, or is it some act or omission performed by Dr James in carrying out his work prior to his giving evidence? 

The second question which must be answered is: should there be an immunity from a complaint being brought to the Board?

As can be seen from the complaints against Dr James, they relate both to evidence given in the trial and evidence given before the Board, and inconsistencies which are said to arise from a comparison of the evidence in those hearings. 

It is important to examine how courts have dealt with the rationale for such immunity. It is, as I have said, an immunity from suit in respect of evidence given by witnesses in proceedings. 

Until the decision of Meadow v General Medical Council [2006] EWHC 146, the principle of immunity had not been extended so far as to prevent the bringing of disciplinary proceedings against someone who has previously given evidence.   That decision is under appeal and, with respect, contains some conclusions which I find difficult to reconcile with previous authority.

The House of Lords in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 was dealing with a claim of alleged fabrication of evidence by police officers. 

In Darker the claims against the police were related to allegations that certain things were done by the police in the course of their investigations. It was alleged that some police officers gave instructions to others to breach normal procedures and also that they had interfered with a witness in order to achieve a result. The cause of action was a conspiracy to injure the plaintiffs and misfeasance in a public office.

The court held that the public policy behind the principle of immunity did not extend so far as to allow immunity for the fabrication of evidence notwithstanding that immunity for a police witness would normally extend to statements made in preparation for court proceedings.  Immunity in this case was not to be regarded as extending to things done, albeit during the investigation process, because it formed no part of the participation by the police in the judicial process regarding witnesses.  In particular the immunity could not extend to protect fabrication of false evidence.

The House of Lords dealt with the question of immunity on the basis that the immunity should be given as narrow an application as was required to serve the interests of the administration of justice. Furthermore the idea of some universal immunity attaching to a person in the performance of some particular function should only be exercised with some caution. The rationale of witness immunity was, with respect, neatly summarised by Lord Clyde who said at 457:

"In the interests of the judicial process a witness should not be exposed to the risk of having his or her evidence challenged in another process."

The process referred to clearly involves litigation. As it was observed by Salmon J in Marrinan v Vibart [1963] 1 QB 234 at 237:

"This immunity exists for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled and possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation".

It appears that Mr Keogh’s complaint relates to a combination of the evidence given by Dr James in both trials and also of conduct occurring before his participation as a witness in the judicial process. While such a distinction is pivotal for cases such as Darker where the Court was asked to decide if the actions of a person were within the boundary of their actions as a witness, the relevant case law seems to suggest that the case at bar can be distinguished on the basis that Mr Keogh is not intending to bring an action against Dr James. Instead he is requesting the Board, comprised of Dr James’ peers, to examine the conduct of Dr James as an individual who practices in the relevant field. He is not being sued. There is no litigation anticipated. It is a complaint of unprofessional conduct. The Board may decide as I have previously indicated that the substance and complaint itself is an abuse of process.

The aims of the Medical Practitioners Act 1983 are to:

"Provide for the registration of medical practitioners; to regulate the practice of medicine for the purpose of maintaining high standards of competence and conduct by medical practitioners in South Australia; to repeal the Medical Practitioners Act 1919-1976; and for other purposes".

In Meadow, Collins J reasoned that the rationale behind the witness immunity rule should also apply to disciplinary proceedings.  With respect, I cannot see why that should be the case.  In most, if not all disciplinary proceedings, it is likely that there is no challenge to what was said elsewhere by the person under review but merely that what was said was unprofessional.  In addition there is no litigation as such and so the rationale relating to a challenge of evidence by another process is not applicable.

The very purpose of the Act is to provide for, and to facilitate the regulation of, the practice of medicine.  Mr Keogh, as a “person aggrieved” pursuant to s54(1)(d), has laid a complaint because he asserts that Dr James has acted unprofessionally.  He is not seeking by a new process to challenge evidence, but relying on that evidence as amounting to unprofessional conduct.

In my view, public interest requires that someone who has given evidence, albeit that they are immune from suit insofar as the evidence given cannot be challenged in another process, should nevertheless be accountable to his or her professional peers when a member of the public makes a complaint of unprofessional conduct.

Mr Borick has submitted that the case for the Board to consider is based only on the evidence already given by Dr James. As he puts it, the Board has simply to look at all that evidence and decide on the documents if Dr James is guilty of unprofessional conduct. He says it is not necessary for Dr James to give evidence. He is not being sued, it is argued, but merely being required to answer to the professional standard of his peers in the medical profession.

Mr Borick conceded that the Board has jurisdiction to consider both the argument as to abuse of process and also the argument in relation to immunity. He has indicated to this court that he would not seek to argue to the contrary before the Board.

Mr Keogh simply says that as a member of the public he is entitled to complain, and that on the basis of the evidence given, Dr James is guilty of professional misconduct. Dr James, in his evidence, said that he did not regard as relevant that there was no proof that one particular mark on the deceased’s body was a bruise. He said that is why he did not refer to it. The Board can determine if it was relevant and if so whether the fact that it was not mentioned amounted to unprofessional conduct.

It is simply a matter for the Board to determine on the basis of the earlier  evidence. It is not a challenge to that evidence.

If, after consideration, the Board does not find the complaint to be an abuse of process, the Board should then proceed and hear and determine first what conduct is being alleged as being unprofessional, and then whether on the evidence before it, it does amount to unprofessional conduct.

Conclusion

In summary therefore, the Board should not be injuncted from proceeding to hear the complaint. The Board should consider any argument presented to it on the basis of an abuse of process. It has the power to deal with such a complaint and grant a stay if necessary. If the Board decides that the laying of the complaint is not an abuse of process it should proceed to consider whether Dr James’ conduct is “unprofessional conduct” pursuant to the Act.

This is not a case of immunity from suit. Dr James is not being sued. There is no challenge by any new process to his previous evidence. He is simply being required to answer to the standards of his profession.

In terms of the orders sought, I would therefore decline to make the orders sought under paragraphs 1, 2, 3, 4 and 5.

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