Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Sudath v Health Care Complaints Commission [2012] NSWCA 171
• Hearing dates: 4 May 2012
• Decision date: 13 June 2012
• Before: Basten JA at [1]; Whealy JA at [51]; Meagher JA at [52]

Decision

(1) Appeal from the decision of the Tribunal made on 29 September 2011 be allowed.

(2) The ruling of the Tribunal as to the basis upon which the appellant's statement was admitted and marked Exhibit 1 and as to evidence which the appellant proposes to adduce be set aside.

(3) Proceedings be remitted to the Tribunal for further hearing according to law.

(4) Respondent pay the appellant's costs of this appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: MEDICAL PRACTITIONERS - disciplinary proceedings before Medical Tribunal - separate complaints based on fact of criminal convictions and that practitioner not of good character - reliance on conduct as basis for assessment as to character - whether abuse of Tribunal's process to lead evidence inconsistent with findings on which prior convictions based
• Legislation Cited: Crimes Act 1900; Criminal Code 1899 (Qld); Health Care Complaints Act 1993; Health Practitioner Regulation (Adoption of National Law) Act 2009; Health Practitioner Regulation Amendment Act 2010; Health Practitioner Regulation National Law (NSW); Human Rights and Equal Opportunity Commission Act 1986 (Cth); Medical Act 1858 (UK); Medical Practice Act 1992; Migration Act 1958 (Cth); Social Security Act 1947 (Cth)
• Cases Cited: A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253; Batistatos v Road and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1; Commissioner of Australian Federal Police v Butler (1989) 91 ALR 293; Connelly v Director of Public Prosecutions [1964] AC 1254; Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 222; Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448; Garrett v The Queen [1977] HCA 67, 139 CLR 437; General Medical Council v Spackman [1943] AC 627; Habchi v Minister for Immigration and Ethnic Affairs (1980) 43 FLR 230; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Health Care Complaints Commission v Stoker [2011] NSWSC 960; Herron v McGregor (1986) 6 NSWLR 246; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; In Re A Solicitor (John Royston Wishart); Ex parte the Incorporated Law Institute of NSW (unrep, 4 September 1941); In Re Welansky 65 NE 2d 202 (1946); In the matter of Alger Hiss 333 NE 2d 429 (1975); In the matter of Braverman 316 A 2d 246 (1974); Island Maritime Ltd v Filipowski [2006] HCA 30; 226 CLR 328; King v Health Care Complaints Commission [2011] NSWCA 353; Lai v Minister for Immigration, Local Government and Ethnic Affairs (1991) 28 FCR 346; Lindsay v Health Care Complaints Commission [2005] NSWCA 356; Lucire v Health Care Complaints Commission [2011] NSWCA 99; McBride v Walton [1994] NSWCA 199; Medical Board of SA v N, JRP [2006] SASC 19; (2006) 93 SASR 546; Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441; Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; Neil Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 38 NSWLR 443; New South Wales Bar Association v Somosi [2001] NSWCA 285; Prothonotary of the Supreme Court of New South Wales v Pangallo (1993) 67 A Crim R 77; R v Gilham [2007] NSWCCA 323; 73 NSWLR 308; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482; Reichel v Magrath (1889) 14 App Cas 665; Ridley v Secretary, Department of Social Security (1993) 42 FCR 276; Rogers v The Queen [1994] HCA 42; 181 CLR 251; Sabag v Health Care Complaints Commission [2001] NSWCA 411; Saffron v Federal Commissioner of Taxation (1991) 30 FCR 578; Secretary, Department of Social Security v Ridley (1992) 40 FCR 43; Sudath v R [2008] NSWCCA 207; The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228; The Queen v Carroll [2002] HCA 55; 213 CLR 635; Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; Weaver v Law Society of New South Wales [1979] HCA 35; (1979) 142 CLR 201; Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29; Wishart v Fraser [1941] HCA 8; 64 CLR 470; Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279
• Category: Principal judgment
• Parties: Dr Aron Kondasinghe Sudath (Appellant); Health Care Complaints Commission (Respondent)
• Representation: Counsel: P R Boulten SC (Appellant); S Rushton SC, E Brus (Respondent); Solicitors: TressCox Lawyers (Appellant); Health Care Complaints Commission (Respondent)
• File Number(s): CA 2011/325734

Decision under appeal

• Date of Decision: 2011-09-29 00:00:00
• Before: Deputy Chairperson Judge Colefax SC; Dr K Ibery; Dr de Carvalho; Dr Berglund
• File Number(s): 40020 of 2008

Judgment

1 BASTEN JA: In 1998 Dr Sudath ("the practitioner") was charged with an offence of common assault. On 23 September 1998 the charge was found to have been proved in the District Court at Brisbane, but the Court recorded no conviction. The practitioner was fined $375. The circumstances of the offending are not revealed by the material before this Court, but it is unsurprising, in the light of the outcome, that the incident did not at the time give rise to disciplinary proceedings.

2 Seven years later more serious charges were raised in relation to the conduct of the practitioner towards his then wife on 29 and 30 April 2005. He was charged with having anal intercourse with his wife without her consent on 29 April 2005. He was further charged with assaulting his wife on 30 April 2005. On 21 September 2007 he was convicted on both counts following a trial by jury. He was subsequently sentenced to a non-parole period of six months on the assault charge and a further non-parole period of three years for the more serious offence, with a two year balance of term.

3 On 29 October 2008 the Health Care Complaints Commission ("the Commission") lodged two complaints with the Medical Tribunal, alleging that the practitioner:

(1) has been convicted of offences in the State of New South Wales and made the subject of a criminal finding in the State of Queensland;

(2) is not of good character.

4 The particulars of each complaint were the same, namely the convictions of 21 September 2007 at Penrith District Court and the "offence proved" finding of the Brisbane District Court in 1998.

5 On 26 September 2011 the Medical Tribunal convened to hear both complaints together. An issue arose at the outset as to whether the Tribunal would accept evidence from the practitioner which involved, in part, a challenge to the conviction for common assault and aspects of his former wife's testimony at his criminal trial in 2007. On 29 September 2011 the Tribunal, through the Deputy Chairperson, Judge Colefax SC, delivered what was described in the transcript as an ex tempore judgment, which concluded with the following ruling:

"Therefore, to the extent that Dr Sudath seeks to adduce evidence inconsistent with the evidence of his wife concerning the circumstances of the sexual assault, or with the findings of the remarks on sentence, or any evidence to dispute his conviction for assault, that evidence would not be admitted for the purpose of challenging that evidence or those findings. However, his statement, marked Exhibit 1, is evidence (and any oral testimony would be evidence) relevant to the issues of remorse or rehabilitation - issues which are relevant to the question of whether Dr Sudath is of good character."

6 On 11 October 2011 the Deputy Chairperson made an order, by consent, that the practitioner have leave to appeal "the decision of the Medical Tribunal delivered on 29 September 2011 pursuant [to] s 89(1) of the Medical Practice Act 1992".

Issues on appeal

7 On 12 October 2011 an appeal was lodged, purportedly under the Medical Practice Act 1992 (NSW). That Act was repealed by the Health Practitioner Regulation Amendment Act 2010 (NSW), Sch 3 on 1 July 2010. If, as the parties have assumed, the Medical Practice Act continues to apply, it must be because of the savings and transitional provisions in Sch 5A of the Health Practitioner Regulation National Law, ("the National Law") as in operation in New South Wales. Clause 4 of the Schedule relevantly provides:

"4 Relevant matters still being dealt with on participation day [NSW]

(1) This clause applies if, immediately before the commencement, any of the following referrals, actions, applications or appeals (relevant matters) had been started but not completed under a repealed Act-

...

(g) the referral of a complaint ... to a Tribunal;

(h) an appeal or application to a Tribunal;

(i) an appeal to the Supreme Court.

(2) From the commencement, the relevant matter is to continue to be dealt with under the repealed Act under which it was made.

(3) After the relevant matter has been decided under the repealed Act, any further proceedings or appeal in relation to the matter the subject of the relevant matter is to be dealt with under this Law as if the relevant matter had been decided under this Law."

8 The appeal to this Court was a separate "relevant matter" from the referral of a complaint to the Tribunal. The appeal did not commence before the date of commencement of Part 2 of Schedule 5A. If the appeal were from a final determination of the Tribunal, it would be under the National Law: Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [9]; Health Care Complaints Commission v Stoker [2011] NSWSC 960 at [4]-[6] (Brereton J). It is arguable that an interlocutory appeal was intended to be dealt with under the repealed Act, although an appeal from a final decision (after the Tribunal has "decided" the complaint before it) would be dealt with under the National Law: sub-cl 4(3).

9 The point is not entirely academic: the right of appeal granted under the National Law is expressed in the following terms:

"162 Appeal against Tribunal's decisions and actions [NSW]

(1) A person about whom a complaint is referred to the Tribunal ... may appeal to the Supreme Court against-

(a) a decision of the Tribunal with respect to a point of law ...."

10 That provision reflects s 90 of the Medical Practice Act. However, the right of appeal relied upon in the present case was that under s 89 which relevantly stated:

"89 Preliminary appeal on point of law

(1) An appeal with respect to a point of law may be made to the Supreme Court:

(a) during an inquiry conducted by the Tribunal, or after a complaint is referred to the Tribunal and before the commencement of the inquiry by the Tribunal ....

(2) An appeal under this section can be made only with the leave of the Chairperson or a Deputy Chairperson of the Tribunal.

(3) If the inquiry or appeal conducted by the Tribunal has not been completed when an appeal with respect to a point of law is made to the Supreme Court, the inquiry or appeal before the Tribunal is not to continue until the appeal to the Supreme Court has been disposed of.

(4) The Tribunal must not make any decision that is inconsistent with the Supreme Court's determination with respect to the point of law when it recommences the inquiry or appeal."

11 There being no equivalent to s 89 in the National Law, it is at least arguable that interlocutory appeals from the Tribunal are no longer available. If that were so, and the National Law were applicable, there would be a serious question as to the jurisdiction of this Court to deal with the purported appeal. It may be assumed, in keeping with the common approach of the parties and the Tribunal which granted leave, that the appeal is available.

12 There is, however, a further issue, on the assumption that s 89 is otherwise applicable. The section apparently envisaged that the Tribunal had three forms of jurisdiction, namely to hear appeals, to conduct inquiries and to determine complaints. Paragraph (a) did not apply to appeals, which were dealt with under paragraph (b): this case was not an appeal to the Tribunal. It is not necessary to consider why the language of paragraph (a) appeared to draw a distinction, by use of the disjunctive "or", between an inquiry conducted by the Tribunal and the referral of a complaint to the Tribunal. In any case other than an appeal, the Tribunal conducted an inquiry, as provided by s 159:

"159 Jurisdiction

The members of the Tribunal are to conduct an inquiry into any complaint, matter or application and are to hear any appeal referred to it. ...."

13 On that basis, it does not matter whether the inquiry into the complaint has commenced or not; the final words of paragraph (a) should be understood to be expansive rather than constrictive. Thus an interlocutory appeal under s 89 was available at any point after a complaint was referred to the Tribunal, whether or not the inquiry had commenced.

14 There remains an issue as to the subject matter of the appeal. It was not expressed in s 89 to be a "decision of the Tribunal", although the parties appear to have assumed that the ruling as to the admissibility of the practitioner's statement and proposed oral evidence constituted the relevant subject matter. This may be accepted for present purposes. Nevertheless, there must either be a decision "with respect to a point of law" or the appeal must be "with respect to a point of law", in the latter case whether or not the Tribunal has made a decision.

15 Schedule 2 of the Medical Practice Act dealt with the powers and management of proceedings before the Tribunal. The powers conferred were generally expansive and included the common statement that the Tribunal "is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit": cl 1. Its broad power to admit material included the admission of judgments, verdicts and findings of any court, jury or tribunal, or of a professional standards committee and a transcript of evidence taken in any court or tribunal: cl 4. The only constraint was that the Tribunal be "of the opinion" that the material was "relevant to the proceedings".

16 There was nothing in the Medical Practice Act which imposed an express constraint on the power of the Tribunal to reject material. Nor did the appellant seek to identify any such constraint. Rather, the amended notice of appeal sought to identify error on the part of the Tribunal in ruling that the appellant could not give evidence challenging or contradicting:

(a) his wife's evidence at the trial which resulted in the two convictions;

(b) the sentencing judge's "remarks on sentence" or the sentencing judge's "findings" in his remarks on sentence,

as to do so would constitute an abuse of process. The conventional phrase "remarks on sentence" is a misnomer; the judge imposing a sentence makes orders and gives reasons therefore. The resulting judgment will often include findings of fact.

17 The appellant did not seek to challenge the power of the Tribunal to protect its proceedings from abuse, with the result that the grounds of appeal appeared, at their highest, to involve mixed questions of fact and law. However, the submissions developed a more fruitful proposition, namely that the course sought to be undertaken by the practitioner could not, as a matter of law, amount to an abuse of the process of the Tribunal. The appeal should be approached on that basis.

18 The rejection of the proffered material could be justified on the basis that it was irrelevant to any issue before the Tribunal or, in the alternative, because it was 'inadmissible' in the sense that, although not bound by the rules of evidence, the Tribunal had the power or even the obligation to exclude it. If there were no obligation to exclude otherwise relevant material, an appeal with respect to a question of law could only arise if the Tribunal, having the power to exclude the material, were in the circumstances of the case either obliged to exercise that power, or exercised the power in the mistaken belief that it was obliged to do so.

19 Although the Tribunal excluded the proffered material on the basis that to admit it would be an "abuse of process", it is convenient to consider first how the material was said to be relevant.

Relevance of proffered material

20 In principle, the material proposed to be presented by the practitioner could be relevant to a defence to the particulars of the two complaints, or it could be relevant to the penalty which might be imposed in the event that one or other of the complaints had been proved.

21 The material in question does not appear to have been proffered as relevant to complaint 1: Reasons of Tribunal, p 4. The practitioner accepted that he had been convicted of and made the subject of a criminal finding for offences, for the purposes of s 39(a) of the Medical Practice Act. What he challenged was the complaint that he was not of good character, for the purposes of s 39(e). The only issue in relation to complaint 1 was, therefore, to determine the appropriate disciplinary order. There may have been an assumption that the penalty to be imposed was to be determined by reference to the nature of the convictions and the offence proved, rather than the underlying conduct, but that issue was not explored.

22 As set out in complaint 2, the particulars providing the basis for the allegation that the practitioner "is not of good character" were the same as for complaint 1, namely the two convictions and the finding of a criminal offence. If the matter had been approached on that basis, it would have been doubtful whether the second complaint added anything to the first, and the conduct underlying the convictions would not have been in issue. However, the Commission appears not to have approached the matter on that basis. In opening the case for the Commission, counsel tendered a document described as the transcript of the 2007 criminal proceedings in the District Court. Although other documents were admitted, the transcript was originally marked for identification only, although it was later admitted in the course of submissions: Trib tcpt, 26/09/11, pp 9(40) and 22(25).

23 Why the transcript was marked and not admitted is unclear: the practitioner did not object to its tender: Trib tcpt, p 14(5). However, it may be that the Deputy Chairperson foresaw the difficulty which might arise if the transcript were admitted, but the practitioner were held to be unable to challenge so much of the evidence as was essential to uphold the convictions against him. Nevertheless, if the transcript were to be admitted, there might need to be an amendment to the particulars of the second complaint to allege that it was the conduct constituting the offences which demonstrated the lack of good character. (The Tribunal had ample powers to make the necessary changes to the complaint, as thought necessary: Medical Practice Act, Schedule 2, cl 5.)

24 One other procedural aspect needs to be noted. In its written submissions, the Commission stated that the proceedings were at the first stage of a two-stage process: submissions, par 33. It is only when the complaint has been found to be proven that the disciplinary powers of the Tribunal are enlivened. Further, the submission stated, "this Court has emphasised the need for a 'second stage' hearing on 'penalty'". The authority for this proposition was said to be King v Health Care Complaints Commission [2011] NSWCA 353 at [202]-[204] (Handley AJA, McColl JA agreeing).

25 King is not authority for such a universal proposition: the need for a separate hearing on the appropriate disciplinary orders will depend upon the nature of the complaint and the circumstances of the particular case. In relation to complaint 1, the fact of the convictions and criminal finding were admitted: the only issue was the appropriate disciplinary order. In respect of complaint 2, there was a dispute as to the substance of the complaint. However, it may not have been necessary for there to be a separate hearing in respect of the appropriate orders and such a course might well be both inappropriate and impractical. Findings as to the basis of lack of good character will often have immediate and important significance for the form of the order. If, at the completion of the hearing, an adjournment is necessary where that was not anticipated at the commencement of the hearing, that can occur. There is no legal requirement for such a course in all cases; indeed character and conviction complaints are unlikely candidates for such a procedure.

26 In the present case there was no attempt to separate questions of 'liability' from consequential orders. That may have happened, if the occasion had arisen, but there is no indication that the Tribunal was concerned to deal with evidence relevant only to the "first stage" of a two-stage process.

27 In any event, once the Commission sought to place before the Tribunal evidence with respect to the conduct involved in the 2007 convictions by tendering the transcript, the practitioner's evidence as to what occurred in respect of the events in question became relevant. Indeed, without that evidence the second complaint added nothing to the first. Thus, by way of example, if the convictions were of their nature offences which rendered the practitioner, in the language of s 64(1)(c), "unfit in the public interest to practise medicine", the Tribunal had power to suspend him or direct that he be deregistered. It obtained no greater power by characterising his circumstances as demonstrating a lack of good character.

Abuse of process

28 The rejection of the practitioner's statement was based on the conclusion that it constituted "a clear collateral attack" on the findings and orders in the criminal proceedings. The Tribunal referred to "a well established line of authority that there is inherent in any court of justice a power to prevent a misuse of its procedures in a way which would bring the administration of justice into disrepute": Reasons, p 7. As explained by Meagher JA, there is no reason to suppose that the Tribunal, which has the power to impose a range of sanctions on a registered medical practitioner for the protection of the public, does not have power to protect its own process from abuse and, in particular, to prevent its procedures being used to bring the administration of justice in other proceedings into disrepute.

29 The concept of procedural abuse can invoke a number of underlying values: Island Maritime Ltd v Filipowski [2006] HCA 30; 226 CLR 328 at [41] (Gummow and Hayne JJ). These may be found in a number of separate principles, including the public interest in there being an end to litigation, acceptance of that which has been adjudicated as the truth and that no person should be put in jeopardy twice for the same cause: R v Gilham [2007] NSWCCA 323; 73 NSWLR 308 at [8]-[10] (Spigelman CJ).

30 Most of the case law turns on the third principle, often referred to as "double jeopardy": Garrett v The Queen [1977] HCA 67, 139 CLR 437; Rogers v The Queen [1994] HCA 42; 181 CLR 251; The Queen v Carroll [2002] HCA 55; 213 CLR 635; Island Maritime; R v Gilham. This aspect of the principle has no application in the present case; the practitioner is not being placed at risk of conviction or any other form of criminal sanction for offences of which he has been acquitted. Nor is this a case like Hunter v Chief Constable of the West Midlands Police [1982] AC 529, where a convicted party brings civil proceedings for the purpose of challenging adverse findings in a criminal case. (In that case, the plaintiffs were suing for unlawful assault by police who had interrogated them, in circumstances where the police had been found, in criminal proceedings brought against the plaintiffs, not to have misconducted themselves in the course of the interrogations.)

31 Nor is it true to say that the material sought to be relied on by the practitioner would challenge the principle of finality. The criminal proceedings have been finalised, appeals have been dismissed and the practitioner is serving a sentence, none of which will be affected by the evidence or findings in the present proceedings. What remains is a potential inconsistency between the findings made by the Medical Tribunal on the facts before it and the findings made in the criminal proceedings. If, for example, it were found on the balance of probabilities that the practitioner's wife consented to intercourse, there would appear to be an inconsistency with the verdict of the jury, which was only consistent with satisfaction beyond reasonable doubt that she did not consent. Of course, it is no doubt possible that the jury's verdict may have been different if the practitioner had given evidence in the criminal trial.

32 The possibility that the Tribunal may make findings which call into question the outcome in the criminal proceedings, does not necessarily mean that for the practitioner to give evidence inconsistent with such findings would be an abuse of its process. No case relied upon by the Commission demonstrated that a defendant or respondent in proceedings brought by another party could be prevented from tendering relevant and admissible material in his or her defence because such material would invite a contrary finding of fact to one achieved by a differently constituted tribunal in other proceedings.

33 The decision of the House of Lords in General Medical Council v Spackman [1943] AC 627 tended against such a conclusion, but did not in terms deal with the present situation. Dr Spackman had not been charged with or convicted of any offence; rather he was found by the Divorce Court to have committed adultery with a married patient, on the basis of which the Court issued a decree. The General Medical Council declined to take his evidence in respect of the allegation of adultery and removed his name from the register on the basis of the finding of the Divorce Court. As explained by Lord Wright, referring to s 29 of the Medical Act 1858, at 639:

"This gives the council disciplinary powers over registered medical practitioners. It specifies two main conditions under either of which the powers of the council may be exercised. (1) If the medical practitioner is convicted in England or Ireland of any felony or misdemeanour, or (2) if he is after due inquiry judged by the council to have been guilty of infamous conduct in any professional respect. ...

The former condition is defined precisely and nothing more than the conviction is required to found the discretion, though how the discretion is to be exercised is left to the council. The other condition is on a different footing .... The precise meaning and scope of these words are left to the council. It has to decide whether infamous conduct has been made out to its satisfaction."

34 The opinions expressed in Spackman did not directly address the question whether, if a conviction had been relied upon, it could have been contradicted. Viscount Simon LC also referred to the two separate bases for the exercise of the council's power to deregister. He stated (in the first of two passages set out by Meagher JA at [85] below), that if a conviction were relied upon as the basis for exercise of the power, the practitioner could not "go behind it and endeavour to show that he was innocent of the charge": at 634-635. By contrast, in cases of "infamous conduct in any professional respect", the Council was obliged to carry out a due inquiry. The rules of evidence not applying, the conviction could be tendered as relevant material, but was not decisive. However, in identifying the distinction, Viscount Simon, referred, on the one hand, to a conviction of felony or misdemeanour and, on the other hand, to a case in which "the allegation of infamous conduct is not connected with a criminal conviction". Nothing may have been intended by the negative qualification, but it is clear from the rest of the opinion that no view was being expressed about the possibility of infamous conduct in a professional respect which was the subject of a criminal conviction.

35 The underlying concern expressed by the Deputy Chairperson finds some support in Massachusetts case law. In In Re Welansky 65 NE 2d 202 (1946), the Supreme Judicial Court of Massachusetts considered the disbarment of an attorney who had been convicted and sentenced to a minimum term of 12 years imprisonment for manslaughter, following the death of 19 people in a nightclub. In upholding the refusal of the trial judge to permit him to give evidence denying that he had committed any crime, and distinguishing the "traditional rule" that he could seek to have the issue retried in a civil proceeding, the Court stated at 204:

"We think that the doctrine ... ought not to enable a respondent attorney, after a conviction of crime that remains unpardoned, to retry in disbarment proceedings the question whether he was in truth guilty. Something different is involved than the logical consequences of guilt upon property rights or the like. A member of the bar whose name remains on the roll is in a sense held out by the Commonwealth, through the judicial department, as still entitled to confidence. A conviction of crime, especially of serious crime, undermines public confidence in him. The average citizen would find it incongruous for the Commonwealth on the one hand to adjudicate him guilty and deserving of punishment, and then, on the other hand, while his conviction and liability to punishment still stand, to adjudicate him innocent and entitled to retain his membership in the bar."

36 The Court held that his entitlement was limited to an opportunity to show that the crime was not one disclosing unfitness to remain at the bar: at 205.

37 That decision was followed by the same Court in In the matter of Alger Hiss 333 NE 2d 429 (1975). Mr Hiss had been convicted of perjury in respect of evidence he had given before a grand jury denying the claims of his principal accuser before the Committee on Un-American Activities of the House of Representatives. Tauro CJ, speaking for the Court in Hiss also stated, at 432:

"Basic respect for the integrity and finality of a prior unreversed criminal judgment demands that it be conclusive on the issue of guilt and that an attorney not be permitted to retry the result at a much later date in his reinstatement proceedings."

38 Reference was made by way of comparison to In the matter of Braverman 316 A 2d 246 (1974). Mr Braverman, a member of the Communist Party, had been convicted under the Smith Act of advocating the violent overthrow of the United States government. In considering his readmission application, the Massachusetts Court explored the changes in authority governing the constitutional scope of the Smith Act after Mr Braverman's conviction in 1952. Murphy CJ stated that "a serious question exists whether the evidence adduced against Braverman ... would have been legally sufficient to support his conviction under the standards laid down" in subsequent cases: at 251. He concluded at 252:

"Thus, it would seem apparent that Braverman's activities with the Communist Party did not mount up to the requisite showing of 'clear proof' of his specific intent to 'accomplish the aims of the organization by resort to violence' required by subsequent decisions."

39 To that extent, doubt was cast upon the correctness of the convictions, although there was no finding that the convictions were erroneous; rather, the Court permitted his reinstatement on the basis that the convictions were a product of a different era and that the conduct did not demonstrate continuing unfitness to practice law: at 252.

40 These differences in approach are reflected in authority in this country. Much of the argument, both in this Court and in the Tribunal, turned on the reasoning of the High Court in Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279. Analysis of that case is complicated by the manner in which the Court divided. Mr Ziems had been convicted in criminal proceedings of manslaughter as a result of the death of a motorcycle rider hit by his car, which had veered onto the wrong side of the road. The critical factual issue was whether his negligent driving was caused by intoxication or by a blow to the head: the conviction was based on a finding of intoxication. The Full Court of the Supreme Court ordered that his name be removed from the roll of barristers, on the basis of his conviction and imprisonment. In the High Court, the minority (Dixon CJ and McTiernan J) would have dismissed the appeal. The majority, comprising Fullagar, Kitto and Taylor JJ each writing separately, allowed the appeal, setting aside the disbarment and ordering that Mr Ziems be suspended from practice during the continuance of his imprisonment.

41 The Court also divided over the identification of the relevant issue. The minority and Kitto J held that the Supreme Court had been correct to identify the issue as whether the conviction and sentence required the removal of Mr Ziems' name from the roll: at 286 (Dixon CJ), 287 (McTiernan J) and 298-299 (Kitto J). They differed as to the outcome, but not as to the issue to be determined. Thus, Kitto J stated at 298-9:

"In the present case it is not for conduct, but because of a conviction, that the appellant has been disbarred. The Supreme Court, in my opinion, was right in refusing to go behind the conviction, since it had not called upon the appellant to show cause in respect of anything else.

...

The appellant was being called upon to answer a case relating, not to his conduct, but to his conviction and sentence."

42 The other two members of the Court held that the issue related to the conduct of the barrister and an assessment of whether the conduct rendered him unfit to remain on the roll: at 288, 289 (Fullagar J) and 302 (Taylor J). Fullagar J found support for this approach in the judgment of Jordan CJ (Halse Rogers and Roper JJ agreeing) in In Re A Solicitor (John Royston Wishart); Ex parte the Incorporated Law Institute of NSW (unrep, 4 September 1941). Mr Wishart had been convicted before a magistrate of having in his possession a document with intent to endeavour to cause disaffection among members of the Australian Imperial Forces, for which he was sentenced to six months imprisonment. (The facts are ascertainable from the report of related proceedings in Wishart v Fraser [1941] HCA 8; 64 CLR 470.) Fullagar J (at 289) cited the following passage from the judgment of Jordan CJ (at 2):

"It must be remembered that in the present proceedings there is no question of punishing the respondent. He has been convicted, and what was regarded as the appropriate punishment has already been inflicted. The question for this Court is whether he is fit to remain on the Roll of Solicitors. The fact that he has been convicted is of secondary importance. We are more concerned with the facts of the particular case."

43 However, it is clear from what followed that Jordan CJ did not attempt to discount the weight to be given to the conviction, nor the findings of fact underlying it: he stated that the "propriety of the conviction cannot be doubted" and that there was "ample evidence to support it": at 3. Rather, he noted that while the offence could have been prosecuted on indictment, the authorities had determined it was properly disposed of summarily and that, whilst dissemination of the document was capable of inciting disaffection amongst troops during wartime, there was "nothing on the face of the document to suggest an intention directly to assist the enemy or weaken Australian effort; and no evidence that the respondent's real, as contrasted with his ostensible purpose, was to produce either of these results". Jordan CJ said the purpose appeared to have been "politically subversive rather than directly treasonable in relation to the present war". The application to remove Mr Wishart's name from the roll was dismissed.

44 The difficulty in identifying the principle established by Ziems arises from uncertainty as to why members of the Court adopted different approaches. Thus, would those who treated the case as restricted to the effect of the conviction alone have taken a different view, if the barrister had been charged with unfitness based upon the conduct underlying the conviction? Alternatively, would they have held that it was inappropriate to look at the underlying conduct in circumstances where a criminal trial had been held and a conviction had resulted? With respect to the members of the Court who examined the underlying conduct, was that course adopted because it was considered to be the only relevant question in circumstances where the conviction alone could not justify disbarment? The clearest judgment in this respect is that of Kitto J. After noting that the appellant had not been called upon to show cause in respect of anything other than his conviction, his Honour continued at 299:

"If the issue before the court had been whether the appellant's conduct on the occasion to which the conviction related had in fact been such as to disqualify him from continuing a member of the Bar, that conduct would have had to be proved by admissible evidence."

45 There was, therefore, a majority of the Court who accepted that it was permissible (and arguably essential where the underlying conduct constituted the basis of the complaint) to go behind a conviction in order to make findings as to the underlying conduct and then determine whether the conduct so found demonstrated unfitness to practice.

46 The comments of Kitto J with respect to the need for admissible evidence proving the conduct, if it were relied upon as the basis for the disciplinary proceedings, have no direct application in the present case. Accordingly, once the Commission tendered evidence upon which it sought to rely to establish the underlying conduct, it could not seek to exclude the practitioner from calling evidence going to the same issues. From the point of view of the Commission, and for the purposes of these proceedings, the conviction and the findings upon which it must have been based, together with the further findings of the sentencing judge, were by no means sacrosanct.

47 There was a further consideration to which the Tribunal was clearly entitled to have regard and which was raised expressly by the Deputy Chairperson in the course of oral submissions. His Honour was concerned as to whether, if the practitioner were to be permitted to give evidence as to his understanding of the events in question, the Commission could seek to call the witnesses from the criminal trial. There was no indication that the Commission intended to take that course, although there is a suggestion that the practitioner's former wife may have been available to give evidence if required. It was open to the Commission to tender the transcript of the trial and that was the course which was proposed by counsel for the Commission in her opening. If a different course had been taken, other questions would have arisen as to the power of the Tribunal to limit the Commission to tender of the transcript or to permit the calling of particular witnesses with respect to particular issues. Whenever an appellate court is invited to hear further or fresh evidence, it has the difficult task of assessing the credibility of that evidence against that of witnesses who have not been heard by the appellate court. If the evidence is believed to be material, the usual course will be to set aside the decision below and remit the matter for a further hearing, so that the trial court can assess the credibility of each of the witnesses, if that be central to the outcome of the case. In this case, the Medical Tribunal is not, of course, conducting an appeal from the criminal court and if it were thought necessary to hear all of the witnesses, appropriate directions would need to be given. These practical questions do not demonstrate the unsoundness of permitting the practitioner to give evidence in his own defence, even if it called into question the findings in the criminal proceedings.

Conclusion

48 It follows from the foregoing discussion that the Tribunal was not required, as a matter of law, to limit the evidence which might be given by the practitioner so as to avoid inconsistency with the earlier findings. To the extent that it considered such a course necessary, it erred as a matter of law. However, that conclusion would only result in the order being set aside and the Tribunal being required to reconsider the objection of the Commission to the tender of the relevant material. If, however, the Tribunal was precluded, as a matter of law, from upholding the objection, then the matter does not go back for reconsideration, because the only appropriate order would have been to dismiss the objection. That would have allowed the practitioner to give the evidence he proposed.

49 Once the Commission put in issue the nature of the conduct of the practitioner, as a basis for deregistration, and accepting that the Tribunal had a general power to control its own proceedings, the circumstances revealed in this case do not provide any basis for the order made. To prevent the practitioner from giving evidence as to his own conduct inconsistent with that proffered by the Commission would be procedurally unfair. Unless that course were required as a matter of law (contrary to the conclusion reached above) it would not be an available course for the Tribunal to take. Accordingly, even if the Tribunal had correctly found that it had a discretion in this matter, it should not have made the order that it did. To do so was an error with respect to a question of law.

50 For these reasons, I agree with the orders proposed by Meagher JA.

51 WHEALY JA: I agree with Meagher JA.

52 MEAGHER JA: This is an appeal from a ruling of the Medical Tribunal of New South Wales (Tribunal) limiting the evidence which the appellant could lead on the hearing of an inquiry into two complaints against him.

53 The appellant is a medical practitioner registered as such under the now repealed Medical Practice Act 1992 (the Act). On 21 March 2007 he was found guilty of two offences following a jury trial in the District Court of New South Wales before Nicholson DCJ. The appellant did not give evidence at that trial or in the subsequent sentencing hearing. The first offence of which he was found guilty was that on 29 April 2005 he had sexual intercourse with his then wife without her consent and knowing that she was not consenting in contravention of s 61l of the Crimes Act 1900. The second was that on 30 April 2005 he assaulted his then wife in contravention of s 61 of that Act. On 21 September 2007 the appellant was sentenced for both offences to a cumulative non-parole period of three and a half years. The appellant appealed against both convictions and sentences. Those appeals were dismissed: Sudath v R [2008] NSWCCA 207. Much earlier, on 23 September 1998, the appellant was found to have committed the offence of common assault under s 335 of the Criminal Code 1899 (Qld). At that time no conviction was recorded and the appellant was fined $375.

54 After September 2007, two complaints were made about the appellant to the respondent under s 9 of the Health Care Complaints Act 1993. On 29 October 2008 those complaints were referred by the respondent to the Tribunal in accordance with s 51(1)(a) of the Act. As referred, those complaints were:

"COMPLAINT ONE

Has been convicted of offences in the State of New South Wales and made the subject of a criminal finding in the State of Queensland.

PARTICULARS OF COMPLAINT ONE

(i) On 21 September 2007 at Penrith District Court the practitioner was convicted of one count of sexual intercourse without consent under s 61l of the Crimes Act 1900 (NSW).

(ii) On 21 September 2007 at Penrith District Court the practitioner was convicted of one count of common assault under s 61 of the Crimes Act 1900 (NSW).

(iii) On 23 September 1998 Brisbane District Court found the offence of common assault under s 335 of the Criminal Code 1899 (Qld) proved against the practitioner. The court recorded no conviction and fined the practitioner the sum of $375.00.

COMPLAINT TWO

Is not of good character."

The particulars of the second complaint are in the same terms as those for the first complaint.

55 The Tribunal was required to conduct an inquiry as to whether the subject-matter of those complaints was made out: ss 51(1)(a), 60, 159. For that purpose it was constituted by the Deputy Chairperson, Colefax DCJ, Dr Ibery, Dr de Carvalho and Dr Berglund: s 147. The hearing of that inquiry commenced on 26 September 2011. Each of the appellant and respondent was represented by counsel.

56 It would appear that the parties were proceeding upon the basis that the inquiry was being conducted in two stages with the hearing which commenced on 26 September 2011 only dealing with whether each complaint was made out and not with what disciplinary orders, if any, were appropriate. If the Tribunal was proceeding on that basis, evidence which was relevant in the first stage of the inquiry to the second complaint may also have been relevant in the second stage of the inquiry to the first complaint and specifically whether the Tribunal could be satisfied that the circumstances of the three offences rendered the appellant unfit in the public interest to practise medicine: s 64(1)(c). If that was the position, there was a good reason for the inquiry not to be conducted in two stages when there was no requirement that it be conducted in that way.

57 At the commencement of hearing, counsel for the appellant indicated that in relation to the second complaint he proposed to lead oral evidence from the appellant which would contradict first, aspects of his wife's evidence concerning the circumstances of the sexual assault but not the conduct on which that conviction was based and secondly, conduct on which the conviction for common assault was based. That evidence was said to be relevant to whether conduct, relied upon by the respondent with respect to an assessment of the appellant's character, had occurred.

58 In that context, counsel tendered a signed statement of the appellant dated 16 September 2011. That statement included the following:

"6. It was my understanding, based on my cultural upbringing in Sri Lanka that, at the time of a traditional Sri Lankan marriage, a husband and wife each gave unconditional consent to the other to engage in sexual intercourse with each other during their marriage. As a consequence of this understanding, I believed that I was entitled to engage in sexual intercourse with my wife without turning my mind to the question of whether she consented on each occasion.

7. On 23 March 2007 I was convicted of sexual intercourse with my wife without her consent and assault of my wife and sentenced to a term of imprisonment.

8. I appealed the conviction and the New South Wales Court of Criminal Appeal delivered its judgment on 9 September 2008 dismissing the appeal.

9. I now admit that I engaged in sexual intercourse with my wife without her consent on 29 April 2005. I do not admit that I assaulted my wife on 30 April 2005.

10. I now accept that I displayed a lack of consideration towards my wife and take responsibility for the events that occurred on the evening of 29 April 2005. I acknowledge that I failed to respect the thoughts and wishes of my wife on that evening. I accept that my wife made it clear to me that she did not wish to have anal intercourse on 29 April 2005. I should have accepted her wish not to have intercourse and sincerely regret that I did not.

...

23. I admit the fact of the convictions dated 21 September 2007.

24. I admit the conduct which was the subject of the count of sexual assault without consent.

25. I do not admit the conduct which was the subject of the count of common assault."

59 There was then argument as to whether the appellant should be permitted to lead this evidence. In the course of that argument the appellant's statement was tendered and marked as an exhibit. The transcript of the proceedings before Nicholson DCJ and his remarks on sentence were also tendered by the respondent and marked as an exhibit.

60 At the end of that argument, the Deputy Chairperson delivered reasons which were described as reasons of the Tribunal. Those reasons concluded with a ruling as to the basis on which the appellant's statement was received as evidence:

"The course proposed by Dr Sudath constitutes a clear collateral attack upon the finding of guilt in both cases by the jury, the findings of fact in both cases by the trial judge in his remarks on sentence, and the orders of the Court of Criminal Appeal. It would be an abuse of the processes of the Tribunal to permit Dr Sudath to do so. Therefore, to the extent that Dr Sudath seeks to adduce evidence inconsistent with the evidence of his wife concerning the circumstances of the sexual assault or with the findings of the remarks on sentence, or any evidence to dispute his conviction for assault, that evidence would not be admitted for the purpose of challenging that evidence or those findings. However, his statement, marked Exhibit 1, is evidence (and any oral testimony would be evidence) relevant to the issues to remorse or rehabilitation - issues which are relevant to the question of whether Dr Sudath is of good character."

61 The appellant appeals from that ruling under s 89(1)(a) of the Act. That ruling is a decision of the Tribunal: s 154(1). The appeal is made with the leave of the Deputy Chairperson given on 11 October 2011 and is, by s 89(1), limited to questions of law. Because the complaints were referred to the Tribunal before 1 July 2010 and the appeal is from a ruling made in the course of the hearing of the inquiry, the provisions of the Act would appear to govern this interlocutory appeal notwithstanding that the Act was repealed by Schedule 3 to the Health Practitioner Regulation Amendment Act 2010. That was the position adopted by the parties and the Tribunal and would seem to be the result of cll 4(1)(g), (2) and (3) of Schedule 5A to the Health Practitioner Regulation National Law (NSW) which commenced on 1 July 2010 by reason of ss 2 and 4 of the Health Practitioner Regulation (Adoption of National Law) Act 2009. In relation to those provisions, the "relevant matter" would be the referral on 29 October 2008 of the complaints to the Tribunal for inquiry and decision. Clause 4(2) provides that that matter "is to continue to be dealt with" under the Act. Clause 4(3) provides that "after" that matter has been "decided", "any further proceedings or appeal in relation to the matter the subject of the relevant matter" are to be dealt with under the National Law. Prima facie, a preliminary appeal from a ruling or decision on a question of law arising during the inquiry and before the inquiry has been "decided" is part of the "relevant matter" and not within the description "any further proceedings or appeal" in cl 4(3).

Issue on appeal

62 The Tribunal's ruling has three parts. They are that the appellant could not lead evidence:

(1) inconsistent with the evidence of his wife concerning the circumstances of the sexual assault;

(2) inconsistent with the findings of the trial judge in his remarks on sentence (both as to the sexual assault and common assault offences);

(3) to dispute his conviction for common assault.

These parts may overlap in their application to particular evidence. The effect of the ruling is that the appellant cannot contest or contradict the evidence, findings and facts referred to, notwithstanding that they are or are likely to be relevant to the issues before the Tribunal.

63 In so concluding, the Tribunal accepted that the doctrine or concept of "abuse of process" applied to it and acted on the basis that evidence could not be led to challenge the evidence or findings or essential facts referred to because that would constitute a "collateral attack" on the convictions and, for that reason, an abuse of its process. In support of that conclusion, reference was made to Reichel v Magrath (1889) 14 App Cas 665; Hunter v Chief Constable of West Midlands Police [1982] AC 529; Rogers v The Queen (1994) 181 CLR 251; and Neil Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 38 NSWLR 443. In this context the expression "collateral attack" describes an attempt in a subsequent proceeding to raise and have determined an issue or question which is identical to one which has already been determined by a final decision in an earlier proceeding: Hunter v Chief Constable at 541, 542; Rogers v The Queen at 255, 280.

64 By his amended notice of appeal, the appellant contends that the Tribunal erred in ruling that he could not adduce this evidence. The question of law raised by the appeal is whether the Tribunal erred in excluding or limiting the use of that evidence in relation to the second complaint merely because it was inconsistent with the essential facts on which the 2005 common assault conviction was based or, inconsistent with the other evidence and findings referred to, and for that reason necessarily involved an abuse of its process.

65 Before addressing this question, it is necessary to clarify the area of dispute between the parties with respect to the operation of the ruling upon the evidence which the appellant has indicated he seeks to lead in relation to the second complaint. Because the appellant admits the conduct upon which the conviction for sexual assault was based (see [58] above), the first part of the ruling must be understood as directed to evidence of the appellant's wife which is not evidence of that conduct. Similarly, as the trial judge could not make findings in sentencing which were inconsistent with the jury's verdict (see Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1), the second part of the ruling must be understood as directed to findings which go beyond those on which the jury's verdicts on both offences must have been based.

66 So understood, the first and second parts of the ruling are directed to evidence which would not seek to contradict the fact of either conviction or the facts on which each was based. They have the consequence that the appellant's wife's evidence and those findings of the trial judge, to the extent that they go beyond the facts on which each of the convictions was based, are incapable of being challenged or contradicted by the appellant notwithstanding that they are or are likely to be relevant to the matter in issue on the second complaint. The third part of the ruling is concerned with a challenge to the grounds on which the 2005 common assault conviction was based.

67 In oral argument before this Court, the respondent did not submit that the leading of evidence to which the first and second parts of the ruling are directed could amount to a "collateral attack" on either of the convictions; using that expression in the sense in which it is used in cases such as Hunter v Chief Constable and Rogers v The Queen. Nevertheless, it remains necessary to address whether the Tribunal erred in proceeding upon the basis that the leading of such evidence necessarily involves such an attack and for that reason constituted an abuse of its process.

Abuse of process

68 It may be accepted for the purposes of this analysis that the procedures of the Tribunal as a non-curial body attract "abuse of process" doctrines: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 390, 395; Batistatos v Road and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at [2]; Herron v McGregor (1986) 6 NSWLR 246 at 251; cf Ridley v Secretary, Department of Social Security (1993) 42 FCR 276 at 282-283. The issue in this case is not whether the Tribunal or this Court has power to stay proceedings in the Tribunal as an abuse of its process. The former has not been determined by this Court: Herron v McGregor at 251; Lindsay v Health Care Complaints Commission [2005] NSWCA 356 at [73]-[82]; cf Medical Board of SA v N, JRP [2006] SASC 19; (2006) 93 SASR 546. That this Court in its supervisory jurisdiction has such power was decided in Herron v McGregor at 251-252 and assumed to be the position in Walton v Gardiner at 390-392; see also Batistatos at [2].

69 Notwithstanding that there may be said to be "broad correspondence between the circumstances which would constitute abuse of process of the Tribunal and the circumstances which would constitute abuse of process of a superior court" (Walton v Gardiner at 390), it is necessary when considering the position of the Tribunal to have close regard to its functions and obligations under the Act. This is particularly so in the present case because of the basis upon which the Tribunal considered that there would be an abuse of process. Whilst the circumstances which may constitute an abuse of court process do not form closed categories, the cases to which the Tribunal made reference in arriving at its conclusion require attention to whether the Tribunal's procedures were being used for an "illegitimate purpose" and whether the appellant was seeking to re-litigate issues which had been finally determined in criminal proceedings so as to "bring the administration of justice into disrepute": Rogers v The Queen at 286; Batistatos at [14]-[15].

70 Lord Diplock described (at 541) the abuse of process in Hunter v Chief Constable as:

"...the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon 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."

and cited (at 542) the following passage from Lord Halsbury's speech in Reichel v Magrath (at 668):

"... I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again."

71 In Walton v Gardiner the majority (at 393) gave as an example of an abuse of process, proceedings maintained "to litigate anew a case which has already been disposed of by earlier proceedings". Having cited Reichel v Magrath and Connelly v Director of Public Prosecutions [1964] AC 1254, the majority agreed with the observation of Lord Diplock in Hunter v Chief Constable that the maintenance of such a proceeding would be "manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".

72 The majority in Rogers v The Queen applied Hunter v Chief Constable, holding that it was an abuse of process to tender in later criminal proceedings records of interview which had been ruled involuntary and rejected as evidence in earlier proceedings because the earlier determination was a final determination of that issue. McHugh J (dissenting on the question whether that earlier determination was a final one so as to attract the principle stated in Reichel v Magrath) considered (at 287, 289) that Hunter v Chief Constable was best explained as a case of abuse of process arising from civil proceedings brought for the illegitimate purpose of putting pressure on the Home Secretary to review the convictions of the six Birmingham Bombers.

73 Drawing these matters together, it is necessary, in light of the reliance by the Tribunal upon this line of authority, to consider whether the mere tender of such inconsistent material constituted an abuse of its process either because for that reason it involved an impermissible purpose or would otherwise bring the administration of justice into disrepute by seeking to re-litigate a matter which had been finally determined in an earlier proceeding. These questions direct attention to the function of the Tribunal, the issues before it and the relevance of the material sought to be tendered.

Function of the Tribunal on an inquiry

74 The functions and obligations of the Tribunal are described in the Act. It is given jurisdiction to inquire into complaints against registered medical practitioners, and, if those complaints are made out, to exercise its disciplinary powers which include to fine, suspend or deregister. Although that jurisdiction is essentially protective (Walton v Gardiner at 395; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637), it has potentially grave consequences for the medical practitioner in the event of an adverse decision.

75 Once the two complaints were referred under s 51(1)(a), the Tribunal had a duty, not a discretion, to conduct an inquiry into each of them: Health Care Complaints Commission v Litchfield at 636. The conduct of that inquiry is subject to the provisions of Division 1 of Part 11 of the Act. Those provisions govern in various respects the manner in which the medical practitioner is to be accorded procedural fairness. The complainant and medical practitioner were to be given notice of the inquiry and were entitled to attend and be represented by lawyers: ss 160, 162. Although, in conducting an inquiry, the Tribunal is not bound by the rules of evidence and may inform itself "of any matter in such manner as it thinks fit", in doing so it remains subject to an overriding obligation to accord procedural fairness: Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29 at [28], [29].

76 Having completed its inquiry, the Tribunal is required to provide a written statement of its decision to the complainant. That decision must set out its findings on "material questions" of fact and refer to any evidence or other material on which those findings are based: s 165. Thus, in conducting the inquiry, the Tribunal must address any substantial issues of fact which are relevant to the subject matter of the inquiry and make findings on those issues on the basis of the evidence or other material before it.

77 Clause 4 of Schedule 2 to the Act provides that it may receive the following as evidence:

"4 Evidence of other proceedings

(1) A Committee or the Tribunal may receive and admit on production any of the following, as evidence in any proceedings:

(a) the judgment and findings of any court (whether civil or criminal and whether or not of New South Wales) or tribunal,

(b) the verdict or findings of a jury of any such court,

(b1) a finding, decision or determination of a professional standards committee constituted under a health registration Act,

(c) a certificate of the conviction of or the making of a criminal finding in respect of any person,

(d) a transcript of the depositions or of shorthand notes, duly certified by the Registrar or clerk of the court or tribunal as correct, of the evidence of witnesses taken in any such court or tribunal,

where the Committee or the Tribunal is of the opinion that the judgment, findings, verdict, certificate, decision, determination or evidence is relevant to the proceedings."

78 Significantly for present purposes, whilst those provisions facilitate the proof of the fact of a verdict or conviction or finding, they do not make the verdict or conviction or finding conclusive evidence of the grounds on which any verdict or conviction was based or the facts found. Nor do they provide that any transcript of evidence is to be regarded as conclusive as to the matters dealt with. Also, s 56 of the Act provides that the Tribunal may proceed with an inquiry notwithstanding that the practitioner is the subject of proposed or current criminal or civil proceedings. As observed in Health Care Complaints Commission v Litchfield (at 636), such a provision is consistent with the outcome of the disciplinary proceedings not necessarily being governed by the result of any criminal proceedings.

79 Although the Tribunal may inform itself in any way "it thinks fit" and is not bound by the rules of evidence, it must base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined. Thus, material which, as a matter of reason, has some probative value in that sense may be taken into account: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491-493; The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 249-250, 256.

The issues before the Tribunal

80 The subject-matter of the inquiry and the questions before the Tribunal are defined by the grounds of complaint. In this instance, the complaints are founded on the grounds in s 39(a) and s 39(e). They are respectively that the practitioner is the subject of criminal convictions or findings and that the practitioner is not of good character. Whether the subject-matter of each complaint has been "proved" within s 60 gives rise to very different issues. In relation to the first complaint, the only issue is as to the fact of the criminal convictions and findings alleged. In respect of the second, there must be a factual inquiry as to the practitioner's character.

81 An allegation as to a medical practitioner not being "of good character" is concerned with matters reflecting the moral standards, attitudes and qualities of the medical practitioner and not merely his general reputation. Those matters include personal misconduct not connected with the practice of medicine, to the extent that such conduct reveals defects of character which are incompatible with the standards and behaviour required of a member of the medical profession. Allegations of personal misconduct may be met with a denial of the conduct or explanations for it together with evidence as to earlier and subsequent conduct to enable an assessment of whether the alleged misconduct is a true indicator of underlying qualities of character: Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 at 451-452, 460, 475; McBride v Walton [1994] NSWCA 199; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [47]-[51].

82 The inquiry as to character will be confined by particulars of the conduct or other matters relied upon by the complainant or moving party. Those particulars are required by s 43 and should inform as to the matters relied upon: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [83]; King v Health Care Complaints Commission [2011] NSWCA 353 at [8], [9], [50]-[55], [179]. In the present case, the particulars of the second complaint are the convictions and criminal finding. Notwithstanding this, it was made clear by the respondent in oral argument before this Court that the matters relied on are the fact of the two convictions and earlier finding as well as the underlying conduct which gave rise to those convictions. That underlying conduct is not limited to the essential facts upon which the convictions were based. In relation to the proof of that conduct, the respondent tendered and relies upon the whole of the transcript of the proceedings before Nicholson DCJ.

Inquiry as to conduct which has been the subject of an earlier conviction or finding

83 It is not uncommon for the jurisdiction of an administrative tribunal to exercise disciplinary or other powers to be founded upon its being satisfied after inquiry as to the fact of a conviction or as to a person not being of good character or being unfit to practise. In the latter cases, if there is a contest as to the occurrence or significance of the conduct relied upon as relevant to the assessment of character or fitness to practise, material which tends to show whether that conduct occurred or places it in context is relevant to the subject-matter of the inquiry. This remains so even if the conduct has been the subject of an earlier conviction or adverse finding and the evidence sought to be led contradicts the finding or facts essential for the conviction. The mere fact of inconsistency does not of itself excuse the Tribunal from inquiring into the relevant facts or give rise to an abuse of its process. None of this means that a tribunal cannot or should not give significant weight to earlier convictions or findings of a court when addressing whether conduct has occurred. Nor is it the position that a tribunal is required to receive evidence about such conduct if the purpose for which it is proffered is not to challenge the fact of the conduct but to impugn an earlier conviction or the fairness of an earlier trial.

84 A leading decision on this question is General Medical Council v Spackman [1943] AC 627. Dr Spackman was named as a co-respondent in a divorce suit and found to have committed adultery with a married woman who was also a patient. Under s 29 of the Medical Act 1858 (UK), the General Medical Council could deregister a medical practitioner if "convicted ... of any felony or misdemeanour" or, if judged after "due inquiry" to have been guilty of "infamous conduct in any professional respect". Before the Council, Dr Spackman sought to lead evidence challenging the correctness of the Divorce Court's conclusion on the issue of adultery. The Council did not permit that evidence to be led, made an adverse finding on the charge that he had been guilty of infamous conduct and directed that his name be removed from the register. Dr Spackman took proceedings to quash that direction. The House of Lords affirmed the decision of the Court of Appeal that in not permitting Dr Spackman to challenge the Divorce Court's conclusion, the Council had not undertaken "due inquiry".

85 In his judgment, Viscount Simon LC said (at 634-635):

"[Section 29 of the Medical Act 1858] draws a significant distinction between a case in which the impeached practitioner has been convicted of felony or misdemeanour and a case in which the allegation of infamous conduct is not connected with a criminal conviction. In the former case, the decision of the council is properly based on the fact of the conviction, and the practitioner cannot go behind it and endeavour to show that he was innocent of the charge and should have been acquitted. In the latter case, the decision of the council, if adverse to the practitioner, must be arrived at "after due inquiry," and this of course means after due inquiry by the council. The question, therefore, is whether the council in this case can be regarded as having reached its adverse decision "after due inquiry" when it has refused to hear evidence tendered by the practitioner with a view to showing that he has not been guilty of the infamous conduct alleged and that the finding of the Divorce Court against him as co-respondent is wrong." (emphasis added)

After referring to examples of adverse conclusions by courts which might conceivably lead to a charge of infamous conduct in a professional respect, he continued (at 635):

"It seems obvious, in these other instances, that, while the council might well treat the conclusion reached in the courts as prima facie proof of the matter alleged, it must, when making "due inquiry" permit the doctor to challenge the correctness of the conclusion and to call evidence in support of his contention. The previous decision is not between the same parties. There is no question of estoppel or of res judicata. In such cases the decision of the courts may provide the council with adequate material for its own conclusion if the facts are not challenged before it, but, if they are, the council should hear the challenge and give such weight to it as the council thinks fit. The same view must, I think, be taken if the practitioner challenges the correctness of a finding of adultery by the Divorce Court. The decree provides a strong prima facie case which throws a heavy burden on him who seeks to deny the charge, but the charge is not irrebuttable." (emphasis added)

86 Lord Atkin agreed that an obligation to undertake "due inquiry" did not permit the Council to rely upon an inquiry or judgment of guilt by another tribunal (at 637). Lord Wright acknowledged that the decree of the divorce judge was very strong prima facie evidence. It was not, however, a good reason for refusing Dr Spackman the opportunity of stating his case. Lord Wright also pointed out that the legislature had not made a decree of the Divorce Court conclusive evidence of "infamous conduct" (at 645). Each of these observations is appropriate to the present case, the only difference being that between a conviction and a finding in a civil proceeding.

87 The distinction relied upon in Spackman between an inquiry where the issue is as to the fact of conviction alone and one which is directed to conduct underlying a conviction has been relied upon in a number of decisions concerning the exercise of the deportation power under the Migration Act 1958 (Cth). Section 12, as current in 1975, provided that where an alien had "been convicted in Australia of any other offence for which he has been sentenced to imprisonment for one year or longer" the Minister may make an order for deportation. Section 14 provided that the power may also be exercised on the ground of "disqualifying conduct". In Re Pochi and Minister for Immigration and Ethnic Affairs, Brennan J (sitting as President of the Administrative Appeals Tribunal) (AAT) held (at 253), citing Spackman, that neither the Minister nor the AAT could go behind the fact of conviction where that was relied upon to support the exercise of power. The conditions of the Minister's deportation powers in ss 12 and 14 were comparable to those described by Viscount Simon. Section 12 was equivalent to the first of the two categories referred to in Spackman. Brennan J added (at 254) that the position would be otherwise if it was the conduct of the applicant, and not his conviction, which was relied upon as enlivening the Minister's power. He also observed that the same distinction had been drawn in Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279.

88 In Habchi v Minister for Immigration and Ethnic Affairs (1980) 43 FLR 230, Davies J reached a different conclusion (esp at 235) on the basis that the exercise of the power under s 12 was properly characterised as falling within the second category described in Spackman. The analysis and conclusion of Brennan J was preferred and applied in subsequent decisions of the Full Court: see Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 222; and Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441.

89 Three further decisions of the Full Court of the Federal Court to which reference should be made are Saffron v Federal Commissioner of Taxation (1991) 30 FCR 578, Ridley v Secretary, Department of Social Security and Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234. In SRT the Full Court extended the reasoning in its earlier decisions to the facts essential to the sentencing decision on the basis that the power to deport under s 201 of the Migration Act was also founded on the fact of a sentence for a period of more than one year. Saffron and Ridley were not cases concerned with the exercise of a power founded on the fact of a conviction or on particular conduct. Each involved proceedings in which a party sought to assert and establish particular facts which, in the context of earlier criminal proceedings, had been determined adversely to that party. The proceedings in Saffron involved appeals from the disallowance of objections to income tax assessments. The proceedings in Ridley involved an appeal from a decision of the AAT reviewing an administrative decision made under the Social Security Act 1947 (Cth). Each addressed the question before it by reference to whether what was proposed involved an "abuse of process".

90 In Saffron, Davies and Lockhart JJ distinguished Hunter v Chief Constable on the basis that the taxpayer had a genuine interest in challenging the assessments issued against him. That challenge turned on whether there had been an agreement between the taxpayer and another person that, in order to avoid paying tax, they would not declare cash received from the conduct of various businesses. That agreement was, by the time the tax appeal reached the Federal Court, the subject of a conviction of the taxpayer for conspiring to defraud the Commonwealth. The Commissioner argued that it would be an abuse of process to permit the taxpayer to give sworn evidence which conflicted with the facts necessarily found by the jury at his trial. That argument was rejected. After observing that the subject-matter of the taxation appeals fell outside the first of the categories in Spackman and referring to cases such as Gungor, Davies J said (at 582):

"Those cases establish that, where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based. In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court of New South Wales (1957) 97 CLR 279." (emphasis added)

91 Lockhart J emphasised that the taxpayer's conviction was not a necessary integer in the tax appeals in the sense that the fact of the conviction was irrelevant to the determination of the issues in those appeals. He observed (at 592):

"What the applicant seeks to do in the tax appeals, as I understand it, is to deny an agreement between himself and Mr Anderson to the effect that not all of the cash received from the conduct of various businesses in which they were involved would be declared for income tax purposes. This is an assertion of fact which is relevant to the tax appeals; and I can see no good reason why he cannot lead evidence to that effect if he wishes. The respondent may lead evidence to the contrary and in the result the primary judge can determine the facts. But the court cannot reach or express a view that the applicant was wrongly convicted of the offence of conspiring to defraud the Commonwealth. The processes of and respect for the criminal law would not be undermined by the applicant leading evidence of the kind which he seeks to lead. The position would be different if this evidence was led for the purpose of impugning the applicant's conviction or the fairness of his trial." (emphasis added)

92 In Ridley, the appellant was held entitled to re-litigate before the AAT the question whether she was in a bona fide de facto relationship during a particular period so as to disentitle her to receipt of a pension. The appellant had earlier been convicted in a court of petty sessions of obtaining benefits to which she was not entitled by reason that she was in such a relationship during that period. It was argued before Hill J ((1992) 40 FCR 43) and the Full Court that it would be an "abuse of process" to permit Mrs Ridley to re-litigate the fact of that relationship. That argument was rejected. In doing so, Hill J accepted (at 49-50) that what he had previously said in relation to public policy preventing a court from going behind a conviction in Commissioner of Australian Federal Police v Butler (1989) 91 ALR 293 (which was followed by Morling J in Lai v Minister for Immigration, Local Government and Ethnic Affairs (1991) 28 FCR 346), must be reconsidered in the light of the decision and reasoning in Saffron. The Full Court (Spender, Gummow and Lee JJ) said (at 281-282) in response to the submission that it would be "contrary to public policy" and an "abuse of process" to permit Mrs Ridley to re-litigate the issue as to the de facto relationship:

"... it is necessary to re-state the function of the Tribunal. The Tribunal has been established to review decisions of administrators and, if necessary in conducting that review, to exercise the powers and discretions of such decision-makers. ... The AAT Act provides to a person affected by the exercise under an enactment of an administrative decision-making power the right to seek to have a reviewing authority (the Tribunal) exercise that decision-making power. That person is entitled to present to the Tribunal any material that ought to be taken into account in the making of that decision. If that material also challenges facts that were essential for the conviction of that person of an offence, it is not a requirement of law under the rubric of public policy that the review of an administrative decision and the exercise of an administrative discretion or decision-making power be carried out by excluding from the consideration of the reviewing authority material which challenges the grounds on which the prior conviction was based." (emphasis added)

93 In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313, a matter relevant to the AAT's decision when reviewing a deportation order was whether the respondent had committed other offences, not being the conviction and sentence upon which the power to deport was based. Branson J held that although the other convictions and sentences were strong prima facie evidence of the facts upon which they were necessarily based, the decision-maker could admit evidence which contradicted those facts: esp at [41]-[45].

94 In disciplinary proceedings involving the exercise of this Court's inherent jurisdiction over solicitors and barristers, the same distinction has been drawn between proceedings based on underlying conduct and those based on the mere fact of conviction. In Ziems the question arose as to the scope of the inquiry which should be undertaken when the ground relied upon for disbarment was that Mr Ziems was not a "fit and proper person" to practise as a barrister. That depended upon whether the case which the barrister was called upon to meet required consideration of the underlying facts and circumstances or only the fact of his conviction and sentence. The members of the Court did not agree about the answer to this.

95 Whilst agreeing that the fact of the conviction and sentence were of great importance, Dixon CJ (at 283, 286) did not agree that "all the circumstances lying behind them should not be taken into consideration" before determining that the appellant should not remain a member of the bar. After considering all of the evidence, and giving significant weight to the fact that the jury had rejected the appellant's case and that the presiding judge had treated the offence as very serious and imposed a substantial term of imprisonment (at 285), Dixon CJ was not persuaded that the decision of the Supreme Court was wrong (at 286)

96 Fullagar J considered that whilst the conviction was not irrelevant and was admissible prima facie evidence bearing on the ultimate question, it was "on what the man did that the case must ultimately be decided" and that the court was bound to ascertain as best it could, "the real facts of the case" (at 288). Taylor J approached the matter in the same way. He considered that proof of the fact of the appellant's conviction and sentence without more did not make it inevitable that an order should be made removing his name from the roll of barristers and that the real question was whether his conduct had been such as to show that he was unfit to remain as a member of the profession (at 302). In those circumstances, it was incumbent on the court to examine the facts which led to the conviction for the purpose of seeing whether they disclosed conduct on his part which showed that he was not a fit and proper person (at 303).

97 Kitto J approached the matter differently and on the basis that the appellant was only called upon to answer a case relating to his conviction so that the only question was whether if someone was convicted and sentenced on a charge of manslaughter, it was a "necessary conclusion from those facts that he is not a fit and proper person to be a member of the bar" (at 299). He noted, however, that "if the issue before the court had been whether the appellant's conduct on the occasion to which the conviction related had in fact been such as to disqualify him from continuing a member of the Bar, that conduct would have had to be proved by admissible evidence" (at 299). McTiernan J approached the matter on a similar basis. He treated the conviction as conclusive evidence of the appellant's conduct and for that reason the underlying facts and circumstances were not relevant (at 287).

98 Significantly, at least three members of the court (Fullagar, Kitto and Taylor JJ) accepted that if the complaint raised an issue whether conduct to which a conviction related was such as to justify disbarment, it was necessary to consider the "real" facts with respect to that conduct notwithstanding the conviction. The position taken by Dixon CJ with respect to this question is not so clear. He accepted that it was appropriate to consider evidence as to the circumstances lying behind the conviction when addressing whether Mr Ziems should be disbarred but did not say that could be done to contradict as distinct from explain the grounds on which the conviction was based.

99 In A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253, Ziems was described at [18] as an example of a case involving disciplinary proceedings where, notwithstanding that there had been a conviction and sentence, the "particularity with which the facts were approached was important to a conclusion as to the barrister's fitness". In such a case it was necessary to examine "the whole position": at [18].

100 This Court, in Prothonotary of the Supreme Court of New South Wales v Pangallo (1993) 67 A Crim R 77 permitted a legal practitioner to lead evidence challenging the correctness of his conviction. In doing so, Kirby P (at 80-81) acknowledged the requirement emphasised by Mason J in Weaver v Law Society of New South Wales [1979] HCA 35; (1979) 142 CLR 201 (at 207) that the court exercising its inherent jurisdiction in disciplinary proceedings must exercise its own judgment "with an eye to the performance of its duty to protect the public". In New South Wales Bar Association v Somosi [2001] NSWCA 285 this Court rejected an argument that the barrister could not lead evidence as to his conduct in relation to a failure to file taxation returns notwithstanding that his evidence may have been inconsistent with an express finding necessary for his conviction of an offence in the District Court. Spigelman CJ said (at [80]-[82]) that the "public policy against collateral attack of a conviction is not engaged" where the fact of the conviction was not challenged and the questions of professional misconduct and fitness to practise had to be assessed by reference to the underlying conduct on which the conviction was based.

Decision

101 In relation to the second complaint, the respondent relies on conduct which includes the conduct underlying the appellant's two convictions. The inquiry in relation to that complaint could result in the appellant being fined, suspended or deregistered. He has an interest in challenging or explaining the alleged conduct as part of his response to it. If he puts that conduct in issue, the Tribunal's obligation is to inquire and make findings as to whether it occurred. In doing so it must base its decision upon relevant material. Whilst it is not bound by the rules of evidence and may inform itself as it sees fit, it must accord the appellant procedural fairness. In the circumstances, that requires that the appellant be given the opportunity to lead evidence inconsistent with that relied on by the respondent. It does not matter that this material also challenges facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial.

102 The requirement that the Tribunal allow the appellant to present relevant and probative material in response to the evidence relied upon by the respondent in relation to the second complaint, does not mean that the Tribunal is required to rehear the matters dealt with in the District Court. It is entitled to receive as evidence before it, the certificates of conviction, the trial judge's findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence and material before it and in the process of making findings of fact, it is entitled to give those matters significant weight.

103 The Tribunal's ruling was not made on the basis that the appellant was using the opportunity to defend the complaints made against him to challenge the propriety of his criminal convictions or the fairness of his criminal trial. Nor was that ruling justified on the basis that it involved an attempt to re-litigate matters in respect of which the appellant had been convicted. The second complaint requires an assessment of the appellant's character as revealed by alleged personal misconduct. The leading of evidence which challenges the facts underlying the conviction does not, without more, involve the re-litigation of the question whether the appellant was guilty of the offences so as to engage the public policy against collateral attack on a conviction.

104 For these reasons the Tribunal erred as a matter of law in excluding or limiting the use of evidence sought to be led by the appellant because that evidence would be inconsistent with his conviction for common assault or the evidence or findings referred to in the ruling. The leading of the evidence could not for that reason alone constitute an abuse of its process. The Tribunal wrongly proceeded upon the basis that it did. The ruling should be set aside and the Tribunal must reconsider the objection of the respondent to the admission of the evidence proffered.

Orders proposed

105 I propose the following orders:

(1) Appeal from the decision of the Tribunal made on 29 September 2011 be allowed.

(2) The ruling of the Tribunal as to the basis upon which the appellant's statement was admitted and marked Exhibit 1 and as to evidence which the appellant proposes to adduce be set aside.

(3) Proceedings be remitted to the Tribunal for further hearing according to law.

(4) Respondent pay the appellant's costs of this appeal.

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Amendments

15 June 2012 - In the last line, delete "felony" and insert "finding".
Amended paragraphs: 86

25 February 2014 - Minor grammatical changes
Amended paragraphs: [18], [20], [47], [49] and [104]

Decision last updated: 25 February 2014