Jones v Medical Board of Australia and Anor

This decision considered the question of whether declaratory relief may be granted, even where other forms of prerogative relief have been refused. The case involved a doctor who was “cautioned” by the Medical Board. The doctor sought a declaration that the caution was void and of no force or effect. The Medical Board’s decision was neither susceptible to relief under Pt 3 of the Judicial Review Act 1991 nor to certiorari as it did not confer, alter or otherwise affect legal rights or obligations. The court found that declaratory relief could still be available. But, as there was no reviewable error no relief was granted.

Martin J

27 October 2017

This matter concerned the circumstances in which a declaration can be made. The applicant, Dr Jones, a medical practitioner, was “cautioned” by the Medical Board of Australia in 2016. [1]. He sought judicial review of the decision to administer that caution and a declaration that it was void and of no effect. [2]. It was accepted by the applicant that the decision was not susceptible to relief under Pt 3 of the Judicial Review Act 1991, nor to certiorari. [7]. The issue was whether or not declaratory relief was available. [7].

The respondent argued (i) that a declaration would not be made when substantial relief such as certiorari is not available, and (ii) that the applicant had not, in any event, established a ground of review. [8]. The applicant argued that although the decision did not affect his rights, it did affect his interests, namely his reputation, and therefore a declaration could be made. [13].

Martin J explained that “[a] declaration is able to be made in cases where the decision does not affect rights but does have an adverse effect on a person’s reputation”. [24]. His Honour referred to the High Court decision in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, where it was accepted that the report by the Criminal Justice Commission had practical consequences for the appellants’ reputations and that a declaration could be made that the appellants had been denied natural justice. [24]. As was said in Ainsworth, and extracted by his Honour in the present case, “[i]t does not follow that, because mandamus and certiorari are inapplicable, the appellants must leave this Court without remedy.” [31].

In the result, however, the applicant was unable to demonstrate reviewable error on the part of the Board and the application was dismissed. [58]–[59].

J English