Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) 67 ALJR 485

Walton v Gardiner [1993] HCA 77 – Detailed Summary

1. Case Header

Citation: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) 67 ALJR 485

Court: High Court of Australia

Date: 29 April 1993

Judges: Mason CJ, Brennan, Deane, Dawson and Toohey JJ

Procedural Posture: Appeals to the High Court of Australia from decisions of the New South Wales Court of Appeal, which had ordered permanent stays of disciplinary proceedings before the Medical Tribunal against the respondents on the ground of abuse of process.

2. Facts

2.1 Background

(i) Disciplinary framework

The proceedings concerned disciplinary complaints made under the Medical Practitioners Act 1938 (NSW) against three medical practitioners: Dr Ian Donald Russell Gardiner, Dr John Tennant Herron, and Dr John Ewan MacDonald Gill. The complaints alleged professional misconduct and were referred to the Medical Tribunal, a statutory body empowered to inquire into complaints and impose disciplinary sanctions, including suspension, deregistration, and fines.

(i) Earlier complaints and stays (1982–1986)

Between 1982 and 1986, a series of complaints were laid against the respondents by members of the public and by the New South Wales Department of Health. These earlier complaints focused on the treatment of specific named patients at Chelmsford Private Hospital during the 1970s.In 1986, the New South Wales Court of Appeal permanently stayed the earlier proceedings against Dr Herron and Dr Gill on the ground that the Department’s delay in instituting the complaints was “appalling” and “inexcusable” and had caused actual prejudice to the respondents. Following that decision, the Medical Tribunal stayed the earlier proceedings against Dr Gardiner. An application for special leave to appeal from the 1986 Court of Appeal decision was refused by the High Court.

(ii) Royal Commission (1988–1990)

Public concern regarding treatment practices at Chelmsford Private Hospital continued. In 1988, the New South Wales Government established a Royal Commission into Deep Sleep Therapy.The Royal Commission sat for 288 days and delivered its report in 1990. The report made grave findings concerning the administration of deep sleep therapy and associated electro-convulsive therapy at Chelmsford, including findings critical of the safety and therapeutic value of deep sleep therapy.

(iii) Current proceedings (1991)

In 1991, following consideration of the Royal Commission’s report, Ms Merrilyn Walton, acting as a delegate of the Secretary of the New South Wales Department of Health, instituted new disciplinary proceedings against the respondents before the Medical Tribunal. These new complaints were framed in broader terms than the earlier complaints, alleging general professional misconduct arising from participation in, or supervision of, the administration of deep sleep therapy and electro-convulsive therapy at Chelmsford between approximately 1970 and 1978. The New South Wales Court of Appeal ordered that these new proceedings be permanently stayed as an abuse of process. Ms Walton appealed to the High Court.

2.2 Material Facts

(i) Chelmsford Private Hospital and deep sleep therapy

During the period between approximately 1970 and 1978, Chelmsford Private Hospital in Sydney administered a form of psychiatric treatment known as “deep sleep therapy”, often in conjunction with electro-convulsive therapy. Deep sleep therapy involved prolonged drug-induced unconsciousness and was later found to involve significant medical risks, including cardio-respiratory, cardiovascular, and neurological complications.

(ii) Roles of the respondents

Dr Harry Bailey was the principal proponent of deep sleep therapy at Chelmsford.

The respondents were associated with Dr Bailey and participated in the treatment regime in different capacities:

• It was alleged that Dr Herron acted as Dr Bailey’s registrar and later admitted and treated his own patients at Chelmsford.

• It was alleged that Dr Gardiner assisted in administering electro-convulsive therapy.

• It was alleged that Dr Gill exercised a supervisory role in relation to patients receiving deep sleep therapy.

(iii)Consequences and subsequent findings.

Between 1963 and 1979, at least 24 patients died as a result of deep sleep therapy at Chelmsford. Many others suffered serious complications.By the mid-1980s, the treatment had been comprehensively discredited. The Royal Commission concluded that deep sleep therapy was unjustifiably dangerous and of no medical worth.

(iv) Delay and prejudice

No respondent had administered deep sleep therapy or been alleged to have engaged in professional misconduct since 1979.By the time the 1991 proceedings were instituted, between 12 and 20 years had elapsed since the alleged conduct. The earlier disciplinary proceedings had already been permanently stayed due to delay, and further delay had accrued in the intervening years.

3. Issues

The High Court addressed the following legal issues, as framed and resolved by the Court’s reasoning:

3.1. Whether the New South Wales Court of Appeal had jurisdiction to order a permanent stay of disciplinary proceedings before the Medical Tribunal on the ground of abuse of process.

3.2. Whether that jurisdiction was confined to cases where a fair hearing was impossible or where the proceedings were brought for an improper purpose.

3.3. Whether the continuation of the 1991 disciplinary proceedings would constitute an abuse of process, having regard to:

the extreme delay in instituting the proceedings
the prejudice to the respondents
the existence of earlier proceedings that had been permanently stayed, and
the public interest in disciplinary proceedings of a protective character.

3.4 Whether the Court of Appeal erred in taking into account considerations analogous to the principle against double jeopardy when deciding to stay the proceedings.

3.5 Whether the Court of Appeal erred in ordering a permanent stay of the proceedings before the Medical Tribunal (ultimate appellate disposition; not a separate substantive legal issue).

4. Rule

4.1 Source of Supervisory Jurisdiction

The New South Wales Court of Appeal possessed supervisory jurisdiction to stay proceedings before the Medical Tribunal pursuant to s 23 of the Supreme Court Act 1970 (NSW), which confers on the Supreme Court “all jurisdiction which may be necessary for the administration of justice in New South Wales”.

That jurisdiction extends to making orders protecting inferior courts and tribunals against abuse of their processes, as previously recognised in Herron v McGregor (1986) 6 NSWLR 246, and affirmed by the High Court’s statement, upon refusing special leave to appeal in that case, that it saw no reason to doubt the correctness of the Court of Appeal’s conclusion on jurisdiction.

4.2 Scope of Abuse of Process Jurisdiction

The jurisdiction to stay proceedings for abuse of process is not confined to cases where a fair hearing is impossible or where proceedings are instituted for an improper purpose.

This broader conception of abuse of process was affirmed by reference to Jago v District Court of New South Wales (1989) 168 CLR 23, where the High Court held that proceedings may constitute an abuse where their continuation would itself be so unfairly and unjustifiably oppressive as to undermine the administration of justice.

That approach was confirmed as consistent with Williams v Spautz (1992) 174 CLR 509, and with the description of abuse of process in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, as involving misuse of procedure that is manifestly unfair or damaging to public confidence in the administration of justice.

4.3 Application of Abuse of Process Principles to Tribunal Proceedings

The principles governing abuse of process in courts apply, by analogy, to proceedings before statutory disciplinary tribunals where the tribunal exercises functions that may have grave consequences for the individual concerned.

This approach follows from Herron v McGregor (1986) 6 NSWLR 246, where the Court of Appeal applied abuse of process principles to disciplinary proceedings under the Medical Practitioners Act 1938 (NSW), and was treated in the present case as authoritative.

No provision of the Medical Practitioners Act 1938 (NSW) was construed as excluding or limiting the Supreme Court’s supervisory jurisdiction under s 23 of the Supreme Court Act 1970 (NSW) to stay Tribunal proceedings for abuse of process.

4.4 Delay as a Basis for Abuse of Process

Extreme and unjustified delay in instituting proceedings may, of itself, constitute an abuse of process where the delay results in unfairness or oppression, even if a fair hearing remains technically possible.

This proposition was drawn directly from Jago v District Court of New South Wales (1989) 168 CLR 23, particularly the reasoning of Mason CJ and Deane J, and was applied in the disciplinary context through Herron v McGregor (1986) 6 NSWLR 246.

The High Court in the present case accepted that extreme and unjustified delay, when considered together with prejudice to the respondents and the existence of prior permanently stayed proceedings, may justify a permanent stay as an exercise of supervisory jurisdiction.

4.5 Weighing Process

Whether proceedings constitute an abuse of process is determined by a weighing process, involving consideration of:

• fairness to the person subject to the proceedings,

• the public interest in the disposition of allegations of serious misconduct, and

• the need to maintain public confidence in the administration of justice.

This evaluative approach was adopted from Jago v District Court of New South Wales (1989) 168 CLR 23 and endorsed in the present case as the correct method for assessing abuse of process, including in disciplinary proceedings exercising protective but punitive powers.

The High Court treated the outcome of that weighing process as a discretionary evaluative judgment, and held that appellate intervention was not warranted in the absence of identifiable error of law or principle.

5. Application

The High Court applied the governing principles of abuse of process by examining, in sequence, the jurisdictional foundation of the Court of Appeal’s intervention and the substantive justification for permanently staying the disciplinary proceedings.

5.1 Jurisdiction of the Court of Appeal

The Court first addressed whether the New South Wales Court of Appeal possessed jurisdiction to stay proceedings before the Medical Tribunal on the ground that their continuation would constitute an abuse of process.

The appellant sought leave to amend the notice of appeal to challenge that jurisdiction. The High Court refused leave.

The Court noted that:

• The existence of the Court of Appeal’s supervisory jurisdiction had not been challenged in the earlier proceedings.

• In Herron v McGregor (1986), the Court of Appeal had expressly held that it possessed supervisory jurisdiction under s 23 of the Supreme Court Act 1970 (NSW) to stay Tribunal proceedings for abuse of process.

• An application for special leave to appeal from that decision had been refused by the High Court, which stated that it saw no reason to doubt the correctness of the Court of Appeal’s conclusion on jurisdiction.

The High Court held that reopening the jurisdictional question at this stage would be unjustifiably oppressive and inconsistent with the interests of the administration of justice, given that the issue had been conclusively resolved in Herron v McGregor and left undisturbed following the refusal of special leave.

Accordingly, the High Court proceeded on the settled basis that the Court of Appeal had jurisdiction to stay proceedings before the Medical Tribunal where their continuation would constitute an abuse of process.

5.2 Scope of Abuse of Process Jurisdiction

The appellant argued that a permanent stay could only be ordered where:

• a fair hearing was impossible, or

• the proceedings were brought for an improper purpose.

The High Court rejected this narrow formulation.Drawing on authorities including Jago v District Court of New South Wales, the Court affirmed that abuse of process is not confined to such limited categories.

Proceedings may constitute an abuse of process where, even if a fair hearing is technically possible and no improper purpose is shown, their continuation would be so unfairly and unjustifiably oppressive as to undermine the administration of justice.

Applying those principles, the Court treated the continuation of proceedings as capable of constituting an abuse where their cumulative effect would undermine confidence in the administration of justice, even in the absence of improper purpose or trial unfairness

5.3 Adaptation to Disciplinary Proceedings

The Court recognised that proceedings before the Medical Tribunal were not criminal proceedings but were protective in character, designed to safeguard the public.

However, the Tribunal possessed powers of a grave nature, including deregistration and substantial financial penalties.

Accordingly, the protective purpose of disciplinary proceedings was treated as a countervailing consideration within the abuse of process analysis, not as a bar to the exercise of supervisory jurisdiction.

The Court held that determining whether disciplinary proceedings should be stayed required a weighing process, analogous to that applied in criminal cases, but adapted to reflect the Tribunal’s protective function.

5.4 Delay and Prejudice

Central to the Court’s reasoning was the extraordinary delay. The alleged misconduct occurred between approximately 1970 and 1978.

By the time the 1991 complaints were instituted:

• More than a decade had passed since the conduct,

• Earlier proceedings concerning substantially the same conduct had already been permanently stayed in 1986 due to delay, and

• Further years had elapsed since those stays.

The Court accepted that the earlier findings in Herron v McGregor — that the Department’s delay was “appalling” and “inexcusable” and had caused actual prejudice — were not disputed and remained relevant.

That delay had been compounded by the passage of time since 1986, resulting in inevitable and serious prejudice to the respondents in defending the new proceedings.

Although a fair hearing was assumed to remain technically possible, the Court held that the cumulative delay, viewed in light of prior stayed proceedings and established prejudice, rendered continuation unjustifiably oppressive.

5.5 Relationship Between Earlier and Current Proceedings

The Court examined the relationship between the earlier complaints and the 1991 complaints.

While the new complaints were framed in broader and more general terms, they arose out of the same pattern of professional conduct as the earlier complaints.

There was substantial overlap between the issues that would arise in the new proceedings and those that had arisen in the proceedings permanently stayed in 1986.

The Court held that the re-framing of the complaints did not alter the essential substance of the allegations, such that the respondents were effectively required to answer anew conduct already the subject of permanently stayed proceedings.

5.6 Double Jeopardy Considerations

The Court acknowledged that the strict doctrine of double jeopardy did not apply:

• the complaints were not identical, and

• there had been no prior determination on the merits.

Nevertheless, the Court held that the notions of fairness underlying the principle against double jeopardy were relevant.

The respondents had already been subjected to proceedings that were permanently stayed as harsh and oppressive.

To require them, years later, to face renewed proceedings based on substantially the same conduct would expose them to the very form of vexation and oppression that the principle against double jeopardy is designed to prevent.

These considerations of fairness, though falling short of strict double jeopardy, were properly weighed as part of the overall abuse of process assessment.

5.7 Weighing Public Interest and Fairness

The Court accepted the seriousness of the allegations and the public interest in regulating professional misconduct.

However, that interest did not outweigh:

• the extreme and unjustified delay,

• the compounded prejudice to the respondents,

• the prior permanent stays, and

• the oppressive nature of renewed proceedings.

In the circumstances of this exceptional case, the Court held that continuation would convert the Tribunal’s processes into instruments of injustice, thereby constituting an abuse of process.

5.8 Appellate Restraint

The Court emphasised that the Court of Appeal’s decision involved a discretionary weighing process.

Absent identifiable error of law or fact, it was not the role of the High Court to re-weigh the factors merely because it might have reached a different conclusion.

No such error was shown. The decision to order permanent stays was open on the facts as found and the principles correctly applied.

6. Conclusion

The High Court dismissed the appeals.

The Court held that:

• the New South Wales Court of Appeal possessed supervisory jurisdiction to stay proceedings before the Medical Tribunal on the ground of abuse of process; and

• the Court of Appeal did not err in ordering permanent stays of the 1991 disciplinary proceedings.

Accordingly, the orders permanently staying the disciplinary proceedings against the respondents remained in force.

7. Precedent / Legal Principles

The High Court affirmed and clarified the following:

7.1 Supervisory jurisdiction over tribunals: A superior court has inherent supervisory jurisdiction to stay proceedings before an inferior court or tribunal where continuation would constitute an abuse of process, including where necessary for the administration of justice.

7.2 Abuse of process not confined to closed categories: Abuse of process is not limited to cases of improper purpose or impossibility of a fair hearing; it extends to proceedings that are so unfairly and unjustifiably oppressive as to undermine public confidence in the administration of justice.

7.3 Delay as an independent basis for abuse: Extreme and unjustified delay may itself ground an abuse of process where it results in oppression or serious unfairness, even if a fair hearing remains technically possible.

7.4 Weighing process: Whether proceedings constitute an abuse of process requires a weighing of competing considerations, including fairness to the individual, the public interest, and the integrity of the justice system.

7.5 Application to disciplinary proceedings: Although disciplinary proceedings are protective in character, abuse of process principles apply where the consequences for the individual are serious and the proceedings would operate oppressively.

7.6 Relevance of prior stayed proceedings: Where earlier proceedings based on substantially the same conduct have been permanently stayed as oppressive, renewed proceedings heighten the injustice and may support a finding of abuse of process.

7.7 Double jeopardy considerations by analogy: While strict double jeopardy rules may not apply, the fairness concerns underlying the principle are relevant in assessing oppression and abuse of process.

7.8 Appellate restraint: An appellate court should not interfere with a discretionary decision to stay proceedings for abuse of process absent identifiable error of law or principle.

8. Ratio Decidendi

Where disciplinary proceedings are instituted after extreme and unjustified delay, following earlier proceedings based on substantially the same conduct that were permanently stayed as oppressive, and where continuation of the proceedings would be unfairly and unjustifiably oppressive notwithstanding the protective character of the jurisdiction, a superior court may permanently stay those proceedings as an abuse of process in order to protect the administration of justice.

A confession found by the trial judge to be voluntary and obtained without unfairness or prohibited treatment will be a upheld on appeal, and a conviction substantially dependent on such a confession is safe.