Steven Yung v Anthony Adams [1997] FCA 1400 (11 December 1997)
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matters in respect of which Dr Yung had received procedural fairness, that is to say, in respect of which he was afforded adequate notice and a fair opportunity to answer the allegations on which the findings were based. The breaches of procedural fairness occurred of course principally during the earlier stages of the process. Nevertheless, the conclusions of the Tribunal were flawed by what had occurred, for the adverse findings of the Tribunal such as they were were not as to matters to which Dr Yung had had a fair opportunity to respond. In McIntosh at 465-468, I discussed the approach which a body such as the Professional Services Review Tribunal should take with respect to an allegation of a lack of procedural fairness in the proceedings below. I indicated that it was not appropriate for the Tribunal to approach the matter as if it were undertaking judicial review of the earlier decisions. That is not its function. However, I also indicated that, if it appears that, in the proceedings below, the medical practitioner did not receive procedural fairness, then the Tribunal would be entitled to treat the findings below with caution or reserve by reason of that matter or even to reject the findings on that ground. The function of a Professional Services Review Tribunal is to decide the matter for itself although on the papers and after hearing addresses. It ought not make a finding against a medical practitioner unless it is satisfied that the medical practitioner has had adequate notice of the relevant allegations and an adequate opportunity to meet them. It is fundamental to the validity of the decision of a Professional Services Review Tribunal, which has the power and function to review the matter for itself, that its decision is based on findings in respect of which the principles of natural justice have been satisfied. The law as enunciated in Kioa v West applies equally to a decision made by a Professional Services Review Tribunal as to a decision by any other administrative body. Orders Mr Smith rejected a suggestion from the Bench that he should consider amending the proceedings so as to challenge the decision of the Committee and the determination of the Determining Officer. He rejected that approach submitting that, in an appeal under s 124A of the Act, the Court has power to declare the decisions of the Committee and of the Determining Officer void and of no effect. Mr Smith referred to s 22 of the Federal Court of Australia Act 1976 (Cth). He was also relying, I think, upon Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 in which it was held that a decision of a watch committee, which had not provided procedural fairness, was void because a decision given without regard to the principles of natural justice was void and that the fact that the matter had been further considered by the Secretary of State who affirmed the decision of the watch committee did not affect the invalidity. At 81 Lord Reid said: "I need not consider what the result would have been if the Secretary of State had heard the case for the appellant and then given his own independent decision that the appellant should be dismissed. But the Secretary of State did not do that. He merely decided `that there was sufficient material on which the watch committee could properly exercise their power of dismissal under section 191(4).' So the only operative decision is that of the watch committee, and, if it was a nullity, I do not see how this statement by the Secretary of State can make it valid." The present is a different case for the decisions of the Committee and of the Determining Officer are not challenged in this proceeding. The fact that, if they had been challenged they may well have been declared void, does not render the decision of the Tribunal a nullity. In McIntosh at 466 I rejected a similar argument and held, after referring to Forbes v New South Wales Trotting Club Limited [1979] HCA 27; (1979) 143 CLR 242, R v Balfour; Ex parte Parkes Rural Distributions Pty Limited (1987) 17 FCR 26 and Wade's Administrative Law 5th Edition at p314, that an administrative decision remains valid and operative until it is declared invalid by a court of competent jurisdiction. I need not repeat my observations in McIntosh. See also Otter Gold Mines Ltd v Australian Securities Commission (unreported, Beaumont, Sundberg & Merkel JJ, 5 November 1997). The proceedings are in form an appeal from a decision of the Tribunal. Although the orders sought include a declaration that the report of the Professional Services Review Committee is void and a
mhtml:file://R:\Health and Life\PSR Video docs\0.Statistical prosecution Steven Yung ... 5/09/2012