Phipps v Royal Australasian College of Surgeons - [1997] 2 NZLR 598

Medicine, pharmacy and related professions — Medical practitioners — Plaintiff had specialist registration as general surgeon but never member of defendant — Defendant invited to review clinical performance of plaintiff in respect of identified patients — Review criticised plaintiff but did not recommend dismissal — Plaintiff dismissed by employer Crown Health Enterprise — Dismissal linked with outcome of review by defendant.

Judicial review — Jurisdiction — Preliminary issue — Whether a statutory power of decision was exercised — Whether review of professional performance of surgeon amounted to exercise of statutory power — Flexible and liberal approach to powers exercised by body corporate — Requirements for establishing jurisdiction — Whether action of defendant was a power or right conferred by constitution of defendant — Whether such action was intended by Parliament to be justiciable — Whether such action would entitle plaintiff to relief — Judicature Amendment Act 1972, s 3.

Judicial review — Jurisdiction — Preliminary issue — Whether review of practitioner by defendant an exercise of a statutory power — Whether the action derived from the constitution of the defendant or from contract — Whether contract sufficient to exclude a statutory power — Whether remedies available under contract adequate to provide just solution — Whether existence of contract between defendant and employer germane to plaintiff's application for judicial review of manner in which review conducted — Judicature Amendment Act 1972, s 3.

Judicial review — Jurisdiction — Preliminary issue — Whether review of practitioner by defendant justiciable — Whether exercise of statutory power was essentially a commercial, administrative or policy decision — Potential to affect plaintiff's reputation, professional status, employment and livelihood — Whether alternative remedies under employment law provided ground for declining jurisdiction — Judicature Amendment Act 1972, s 3.

Judicial review — Jurisdiction — Whether common law requirements of fairness applicable to private body — Whether potential consequences of review give rise to duty to act fairly.