Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Gorman v NSW Health Care Complaints Commission [2012] NSWCA 251
• Hearing dates: 18 July 2012
• Decision date: 14 August 2012
• Before: CAMPBELL JA; at [1]; HOEBEN JA; at [2]; SACKVILLE AJA; at [175]

Decision

(1) The following Notices of Motion are dismissed:

Appeal motion filed 19 December 2011.

New information motion filed January 2012.

Second new evidence motion filed 3 April 2012 (so far as not previously dismissed).

(2) Appeal dismissed.

(3) The appellant is to pay the respondent's costs of all motions argued on 18 July 2012 and of the 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: APPEAL - Medical Tribunal of NSW - medical practitioner - disciplinary proceedings - de-registration under Medical Practice Act 1992 - registration cancelled under Health Practitioners Regulation National Law Act 2009 - appeal from decision of Medical Tribunal - appeal with respect to point of law only - no point of law arising on appeal - review of decision of Judge of Appeal dismissing motions - motions rightly dismissed - dismissal of other motions - appeal dismissed.
• Legislation Cited: Health Practitioners Regulation National Law Act 2009 (NSW) - s 139B, s 139E, s 149C(1), s 162; Medical Practice Act 1992 (NSW) - s 36, s 37, s 64(1), s 66, s 86J(2), s 95; Supreme Court Act 1970 (NSW - s 46(4), s 19(2), s 48, s 75A
• Cases Cited: AVS Group of Companies v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302; Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; Collier v Cook [2012] NSWCA 50; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW & Ors [2008] NSWCA 227; Gorman v NSW Medical Board [2010] NSWCA 26; Health Care Complaints Commission v Gorman [2011] NSWMT 7; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; House v The King [1936] HCA 40; 55 CLR 499; Kalifair Pty Ltd v Digi -Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737; McBride v Walton [NSWCA, unreported, 27 August 1993 - Handley JA; Patrick v Howorth [2002] NSWCA 285; Phillips v Walsh (1990) 20 NSWLR 206; Re Jay-O-Bees Pty Ltd (in liq) [2004] NSWSC 818; (2004) 50 ACSR 565
• Category: Principal judgment
• Parties: Richard Francis Gorman - Appellant; NSW Health Care Complaints Commission - Respondent
• Representation: Counsel: Appellant in Person; Ms KM Richardson - Respondent; Solicitors: Appellant in Person; Health Care Complaints Commission - Respondent
• File Number(s): 2011/278022

Decision under appeal

• Jurisdiction: 9117
• Citation: [2011] NSWMT 7
• Date of Decision: 2011-08-17 00:00:00
• Before: Johnstone DCJ
• File Number(s): 2011/278022

Judgment

1 CAMPBELL JA: I agree with Hoeben JA.

2 HOEBEN JA:

Nature of the Appeal

The Medical Tribunal of NSW heard concurrently two complaints against the appellant in a hearing which lasted 10 days, commencing 30 May 2011.

(a) The first Notice of Complaint was commenced by the Health Care Complaints Commission (HCCC) against Dr Gorman under the Medical Practice Act 1992 (NSW) (repealed) (the MP Act) on 30 June 2010;

(b) The second Notice of Complaint was commenced by the HCCC against Dr Gorman under the Health Practitioners Regulation National Law Act 2009 (NSW) (the National Law) on 17 March 2011.

3 The appellant was self-represented during the hearing before the Tribunal. The appellant advised the Tribunal that he did not wish to have legal representation. At his request, he was assisted during the hearing by a friend and supporter, Mr Jim Sullivan, who sat with him at the bar table throughout the hearing. At the hearing of the appeal, the appellant was against self-represented and was assisted by Mr Sullivan.

4 The Tribunal handed down its decision on 17 August 2011 (the Tribunal decision) ordering that, inter alia:

(a) Richard Gorman is to be deregistered under s 64(1) of the MP Act.

(b) Richard Gorman's registration is to be cancelled under s 149C(1) of the National Law.

(c) Richard Gorman is prevented from making an Application for Review of the Tribunal's orders for three years.

5 The reason for the Tribunal's dual orders deregistering the appellant under s 64(1) of the MP Act and cancelling his registration under s 149C(1) of the National Law is that the first Notice of Complaint arose under the MP Act and the second Notice of Complaint arose under the National Law. No issue is raised on the appeal about the correctness of making both of these orders rather than one or the other, or about how the two orders interact.

6 The appellant filed a Notice of Intention to Appeal the Tribunal decision on 6 September 2011 and a Notice of Appeal on 31 October 2011.

7 The transitional provisions of the National Law have the effect that the appellant's appeal in relation to the first Notice of Complaint (arising under the MP Act) and the second Notice of Complaint (arising under the National Law) are both to be dealt with under s 162 of the National Law.

8 Section 162 of the National Law relevantly provides:

"162(1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against:

(a) A decision of the Tribunal with respect to a point of law; or

(b) The exercise of a power by the Tribunal under subdivision 6 of Division 3. ..."

9 The appellant filed five Notices of Motion on 25 November 2011 as follows:

(a) The "Briginshaw" motion

(b) The "Whistleblower" motion

(c) The "Philosophy" motion

(d) The "Moving On" motion

(e) The "Stay" motion.

10 Those motions were heard by Macfarlan JA on 9 December 2011 and were dismissed by his Honour. The appellant has applied to this Court for a review of those decisions of Macfarlan JA (the "Appeal Motion"). That review was heard with the substantive appeal.

11 The appellant filed a further motion entitled the "New Information Motion". That motion was heard with the appeal.

Background

12 The appellant was suspended from practice on 5 December 2008 after the Medical Board of NSW (the Board) was satisfied under s 66 of the MP Act that it was appropriate to suspend him "for the protection of the health or safety of any person or was otherwise in the public interest".

13 The appellant appealed the suspension to the Medical Tribunal under s 95 of the MP Act. The appeal which was a hearing de novo, was heard over 9 days in May - June 2009. On 2 July 2009 the Medical Tribunal dismissed the appellant's s 95 appeal and confirmed his suspension under s 66 of the MP Act.

14 On 21 July 2009 the appellant commenced proceedings in the Court of Appeal challenging the decision of the Medical Tribunal of 2 July 2009. On 3 March 2010 the Court of Appeal dismissed the appeal (Gorman v NSW Medical Board [2010] NSWCA 26).

15 It was against that background that the Medical Tribunal heard the first Notice of Complaint and the second Notice of Complaint on 30 May 2011.

First Notice of Complaint

16 By the first Notice of Complaint the HCCC asserted that the appellant had engaged in:

(a) Unsatisfactory professional conduct within the meaning of s 36 of the Act; and/or

(b) Professional misconduct within the meaning of s 37 of the Act

in that he has demonstrated that the knowledge, skill or judgment possessed or care exercised by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and has contravened the Medical Practice Regulation 2008.

17 The procedural background to the first Notice of Complaint was as follows.

(i) A Performance Review Panel was convened to be held on 4 January 2008 under s 86K MP Act to review the professional performance of the appellant as a general practitioner.

(ii) The role of the Panel was to conduct a performance review in accordance with the performance assessment provisions in Part 5A and Part 13A MP Act.

(iii) The Panel made a finding that the professional performance of the appellant was unsatisfactory.

(iv) In accordance with the Panel's finding that the appellant's professional performance was "unsatisfactory", it imposed seven new conditions on his registration in accordance with s 86N(2) MP Act.

(v) Condition 3 provided that within 3 months a Performance Assessment of the appellant's practice of spinal manipulation be made by two health professionals with relevant experience.

(vi) On 28 August 2008 a Performance Assessment of the appellant took place at the Bankstown surgery by Dr Ayscough and Mr Milazzo in accordance with condition 3, i.e. to assess his spinal manipulation technique.

(vii) Dr Ayscough was the President of the Australian College of Physical Medicine and Associate Professor of Musculoskeletal Medicine and Head of Discipline at the Australian School of Advanced Medicine at Macquarie University. Mr Milazzo was a physiotherapist and a physiotherapy lecturer. As a result of the Performance Assessment, a Performance Assessment Report of 29 August 2008 was prepared.

(viii) During the Performance Assessment Dr Ayscough and Mr Milazzo observed the appellant carrying out a spinal manipulation on five patients. The first four of those patients were included in the Performance Assessment (patients KS, MP, PD and JE). The fifth patient (patient CR) was observed receiving a spinal manipulation but was not included in the report.

(ix) The two assessors made comments in their report on patients 1-4, and both confirmed in their evidence before the Tribunal that the fifth patient (CR) would have made no difference to their comments. This was because she was manipulated in exactly the same fashion as the first four patients. A key concern of the assessors was that all five patients were manipulated in exactly the same way regardless of their presenting symptoms.

(x) After observing the appellant carry out the spinal manipulations on these patients, the Performance Assessors formed the following opinion:

(a) In Dr Ayscough's opinion, as a musculo-skeletal physician, the appellant's standard of care in carrying out spinal manipulations was unsatisfactory.

(b) In Mr Milazzo's opinion, the appellant's method of manipulation was below the standard used by a physiotherapist when carrying out spinal manipulations.

(xi) On 28 October 2008 following consideration of the Performance Assessment Report by Dr Ayscough and Mr Milazzo, the Medical Board's Performance Committee resolved that a complaint should be made to the Commission under s 86J(2) MP Act.

(xii) The Commission received a Letter of Complaint from the NSW Medical Board (now the NSW Medical Council) on 26 November 2008. That letter stated that on 28 October 2008 the Board's Performance Committee resolved that a complaint should be made to the Commission under s 86J(2) MP Act.

(xiii) On 30 June 2010 the Commission commenced the first complaint against the appellant as set out in the first Notice of Complaint.

18 The First Notice of Complaint (referred to by the Tribunal as "Complaint 1.1") related to the five patients seen at the Bankstown Medical Centre, i.e. patients KS, MP, PD, JE and CR. In relation to each of those patients, the Tribunal concluded that the appellant's clinical assessment was significantly below the standard expected of a practitioner of an equivalent level of training and experience.

19 The Tribunal concluded that the First Notice of Complaint was proved to the requisite standard of proof and that the appellant had engaged in unsatisfactory professional conduct within the meaning of s 36 MP Act and had engaged in professional misconduct within the meaning of s 37 MP Act. The Tribunal then exercised the power to cancel the appellant's registration under s 64(1) MP Act.

20 It should be noted that none of the five patients referred to in the First Notice of Complaint was called to give evidence before the Tribunal. This was because the allegations made in relation to each of those patients arose from the observation of the Performance Assessors on 29 August 2008 and the clinical notes prepared by the appellant in relation to those five patients. The presenting symptoms of the five patients and the treatment they were given were not in dispute.

Second Notice of Complaint

21 The procedural background to the Second Notice of Complaint is as follows. The section references are to the MP Act.

(i) As already indicated, NSW Medical Board (now the NSW Medical Council) suspended the appellant with effect from 5 December 2008. When such action is taken, the Board must refer the matter to the Commission for investigation. Under s 66B(2), the matter is to be dealt with by the Commission as a complaint made against the practitioner concerned.

(ii) The Commission thus received a Letter of Complaint from the NSW Medical Board on 9 January 2009. That letter referred to the Council's letter dated 9 December 2008 advising the Commission of the suspension order imposed by the Board on the appellant under s 66 and enclosed a copy of the Delegates' Reasons for Decision dated 9 January 2009.

(iii) After investigation of the matter, the Commission commenced the Second Notice of Complaint against the appellant on 17 March 2011. This Second Notice of Complaint was brought under the National Law.

22 By Complaint 2.1 the HCCC asserted that the appellant had been guilty of unsatisfactory professional conduct within the meaning of s 139B of the National Law.

By Complaint 2.2, the HCCC asserted that the appellant had been guilty of professional misconduct within the meaning of s 139E of the National Law.

23 Complaints 2.1 and 2.2 in the Second Notice of Complaint, related to eight patients of the appellant seen by him at the Bankstown Medical Centre. Those patients were identified as patients NC, JEK, CC, DL, ZZ, ST, AT and RP. In relation to each of the eight patients, the Tribunal concluded that the appellant's clinical assessment was significantly below the standard expected of a practitioner of an equivalent level of training and experience.

24 The Tribunal concluded that the Second Notice of Complaint was proved to the requisite standard of proof and that the appellant had engaged in unsatisfactory professional conduct within the meaning of s 139B of the National Law and had engaged in professional misconduct within the meaning of s 139E of the National Law.

25 By Complaint 2.3 the HCCC asserted that the appellant was not competent to practise medicine within the meaning of s 139 of the National Law in that he did not have sufficient physical capacity, mental capacity, knowledge and/or skill to practise medicine.

26 Complaint 2.3 related to both the five patients in the First Notice of Complaint and the eight patients in the Second Notice of Complaint. In addition, the HCCC particularised a series of rigid and firmly held views held by the appellant. During the hearing the appellant agreed that he did indeed hold the following views (which had been particularised at pars (a) - (l) of the Second Notice of Complaint):

(a) There is an ubiquitous illness affecting all of mankind which can be treated by the very simple and safe treatment of spinal manipulation - interchangeable names for this ubiquitous illness are whiplash, spinal arthritis, cervical syndrome, spine-induced neurological syndrome and interictal migraine;

(b) The ubiquitous illness manifests itself in different conditions, such as acne, panic attacks, lower back pain, tonsillitis and viral infections;

(c) Spinal manipulation should be used as the first-line treatment for a wide range of conditions that present in general practice (and this is the approach he in fact takes to general practice);

(d) All pathologies can be challenged by a spinal manipulation before recourse is had to orthodox treatment;

(e) Every single patient who walks in the door of a general practice is likely to respond beneficially to spinal manipulations;

(f) The reason why every single patient who walks in the door of a general practice is likely to respond beneficially to spinal manipulation is that there is an ubiquitous illness that affects all of mankind;

(g) Any illness whatever it is will be better after spinal manipulation;

(h) Spinal manipulation is appropriate treatment virtually always;

(i) General practitioners practising in accordance with accepted general practice are the lowest common denominator and are conducting inferior practices;

(j) The accepted principles and framework of general practice are held in disdain by the practitioner;

(k) The practitioner would be unlikely to talk to patients about treatments other than spinal manipulation because he does not see any point in advising patients to have inferior treatment.

(l) On being instructed in the philosophy of spine-induced neurological syndromes by the practitioner, most patients proceed to undergo spinal manipulation performed by him.

Proceedings before the Tribunal

27 In relation to the First Notice of Complaint, evidence was given by Dr Ayscough and Mr Milazzo on behalf of the HCCC. They considered it inappropriate that the appellant:

(a) Did not perform spinal articular assessment.

(b) Did not palpate the area to be manipulated.

(c) Held the view that the only contra indications for spinal manipulation were a patient taking Warfarin or Aspirin;

(d) Did not follow an accepted clinical standard of normal orthopaedic physical assessment, let alone apply the detailed assessment considered to be necessary prior to utilising spinal manipulation techniques.

(e) Did not perform any screening tests for the risks of possible adverse effects.

(f) Held the view that established contra-indications for spinal manipulation were in fact indications.

28 Dr Young, a general practitioner, also gave evidence on behalf of the HCCC. He provided a written report, dated 9 September 2009, in which he dealt with each of the five patients, the subject of the First Notice of Complaint. In relation to the appellant's practice Dr Young said:

"Although five patients are only a "snapshot" of a practitioner's practice, I believe that there are enough patterns in the cases and other documents examined to be able to make global assessments."

29 Dr Young expressed the following opinion as to the appellant's clinical judgment:

"Dr Gorman appears to have a belief system in the applicability of his form of manipulation to a wide range of conditions that depart significantly from conventional assessment and treatment opinions in a General Practice setting. As can be seen ... he single-mindedly sticks to this treatment's modality despite lack of longitudinal clinical improvement (as in the case of CR) or when the patient is requesting other treatments ... It is my opinion that Dr Gorman's clinical judgment is significantly below the standard expected of a practitioner of an equivalent level of training and experience."

30 In respect of the appellant's patient management skills, Dr Young said:

"The cornerstone of good patient management in the General Practice setting is continuous and comprehensive patient centred care. As I have outlined in detail .... Dr Gorman's management of these patients primarily with spinal manipulation obstructs more comprehensive care of their conditions. ...

Most GPs of Dr Gorman's level of training and experience use a safe diagnostic strategy in their initial and ongoing management of their patient. As outlined in my detailed discussion, Dr Gorman did not demonstrate such a strategy in diagnosing patient complaints. Dr Gorman's broader management skills display serious deficiencies and errors, as highlighted above."

31 The appellant relied upon the transcript of evidence given by Professor Bonello in the 2009 Tribunal hearing. Professor Bonello had been called by the appellant in that hearing. Professor Bonello was at the time an Associate Professor in chiropracty at Macquarie University.

32 The Tribunal found that the transcript of the evidence of Professor Bonello did not assist the appellant. In it Professor Bonello confirmed that an extensive history taking from a patient was an important part of good practice before doing a manipulation. He said that the appropriate standard of care required pre-manipulation assessment and testing as a layer of safety. Professor Bonello identified a whole series of matters which were potential or likely contra-indicators to manipulation. These were all matters with which the appellant disagreed.

33 Professor Bonello was critical of the appellant's "one size fits all" manipulation technique. In the opinion of Professor Bonello, the type of manipulation a practitioner should do depended "absolutely" on the particular patient and on what the particular problem is. By reference to the difference in the physique of patients, Professor Bonello said:

"If the technique was executed in exactly the same fashion, then in my view .... sometimes the treatment would be too weak and other times too strong or sometimes inappropriate."

34 In response, the appellant submitted:

"Professor Bonello's evidence that it's important not to adopt a "one size fits all" manipulation technique is immature."

The appellant said that he applied a standard technique for all cases involving the ubiquitous illness.

35 In relation to Complaints 2.1 and 2.2 the HCCC relied principally upon the expert evidence of a general practitioner, Dr Jammal, and of Dr Susan Ieraci, the Senior Staff Specialist at the Bankstown Hospital Emergency Department.

36 Dr Jammal provided a written report dated September 2010 in which he dealt in detail with each of the eight patients, the subject of complaints 2.1 and 2.2. Having reviewed each patient individually, Dr Jammal expressed some general conclusions.

37 On the question of the appellant's clinical judgment and reasoning, Dr Jammal said:

"The process of clinical judgment and reasoning is a complex one and is influenced by a number of factors. Judgment and reasoning involves a process of analysing and comprehending data (history, examination findings, test results), reconciling this with knowledge and experience and then synthesising and evaluating a judgment. ...

Dr Gorman stated that he would always consider the spinal neurological syndrome first, manipulate the spine and if it doesn't work refer on. ...

In my opinion, Dr Gorman's views and theory so radically depart from generally accepted medical practice that it borders on being more than just a theory, but a belief, of (for the lack of a better word) a religion. Furthermore Dr Gorman displays a lack of insight into the manner in which his views affect his judgment by simply stating that anyone who disagrees with him is ignorant or "inadequate". These comments ignore all essential features of rational clinical reasoning. In doing so, it is my opinion that Dr Gorman's clinical judgment is no longer that of a conventional general practitioner (or conventional medical practitioner), and this lack of clinical judgment departs significantly from the standard expected of a practitioner of equivalent level of training and experience."

38 In relation to informed consent, it was Dr Jammal's opinion that Dr Gorman did not take an adequate history or undertake an adequate examination of the patients, did not reach a diagnosis that reasonable medical practitioners would reach supported by the information available, and did not document that he had given enough information to the patients that would allow them to reach an informed decision regarding both the conventional and complementary treatment he was offering. It was Dr Jammal's opinion that this lack of information may have misled patients into believing that the appellant's views on their illness were representative of conventional knowledge.

39 The effect of the evidence of Dr Ieraci can be seen from the following exchange with counsel for the Commission:

"Q. Are you able to express a view one way or the other on how that medical philosophy manifests itself in treatment and can you talk, in particular, about these four patients? How that philosophy manifests itself in terms of diagnosis?

A. The evidence I've seen here reflects a tendency to attribute the same physical or pathophysiological cause to a wide range of presentations and within this group, almost the same pathophysiological cause to an enormous range of ages and pathologies which would suggest both a lack of acceptance of orthodox medical understanding and also a tendency to use a blanket explanation for a range of different pathologies.

Q. What, in your professional opinion, is the risk of a medical practitioner who is applying the same explanation or pathophysiological explanation to a wide variety of conditions? What sort of risk does that present?

A. There are two main risks. The first would be a failure to effectively diagnose and treat both the cause and the effects of the pathology. And the second would be the potential risks of treatment by manipulation." (T.643.21)

"Q. What do you see as the particular risk if a practitioner were applying a particular type of treatment to a symptom that might be caused by various different conditions? What do you see as the risk?

A. The main risk would be failure to either diagnose the root cause or to give effective treatment for that condition." (T.637.10)

40 In response to this evidence, and the HCCC evidence in respect of Complaint 1.1, the appellant called Dr Beaumont. Dr Beaumont was an experienced opthalmologist who had been involved in patient care, teaching and research for 30 years. Dr Beaumont had published over 70 articles in peer reviewed journals and at the time he gave evidence, he was chairman of the NSW Branch of the Royal Australian and New Zealand College of Opthalmologists. He had been given the appellant's three publications which were in evidence and had read two of them. Dr Beaumont prepared a report dated May 2011, by way of a preliminary overview of the appellant's booklet "The Scientific Basis of Spinal Manipulation Therapy for Constitutional Illnesses".

41 Dr Beaumont expressed the opinion that a number of theories and ideas postulated by the appellant were very unlikely and that his philosophy was not "evidence based". He described the appellant's theory that migraine illness was primarily a problem associated with joint dysfunction as "incredibly bizarre". He described the appellant's theory that bilateral altitudinal hemianopia occurred as a brain phenomenon and not as an optic nerve problem, as "very unlikely". Dr Beaumont rejected as untenable the theory that the explanation for the recovery of vision with spinal manipulation was a vascular hypothesis.

42 Dr Beaumont in this report discussed his involvement in the assessment of 12 patients presented by the appellant. He noted that the signs and symptoms of each patient had disappeared when he evaluated them after the appellant had performed forceful spinal manipulative therapy upon them. Dr Beaumont considered that this intervention had a "dramatic beneficial effect". Dr Beaumont, however, did not think that it was reasonable to use this evidence base to formulate the various hypotheses and proposals that were encompassed in the appellant's medical philosophy as set out in the booklet.

43 In Dr Beaumont's opinion the appellant did not have enough evidence for what he did and that the treatment was to be classified as "inappropriate and dangerous". Dr Beaumont did not accept that the appellant's "ubiquitous illness" existed.

44 In oral evidence, Dr Beaumont said of the risk of a missed diagnosis.

"Q. And would you agree with me that if a doctor has such a medical philosophy or has extended his medical philosophy from the core group or the first postulate to this wide variety of conditions that present in general practice, that there is a very real risk that he will fail to diagnose the obvious or fail to diagnose what's really wrong with a particular patient? Do you agree with that?

A. I think he's coming at it with such a biased point of view there is a risk he will miss a diagnosis of an illness but exactly how high that risk will depend on the ability of the practitioner.

...

Yes I think if you come at it with a rigid paradigm then you may miss the obvious. " (T.490, 492)

45 Apart from Dr Beaumont, no independent expert evidence was led by the appellant in the Tribunal to challenge the Commission's witnesses. To the extent that the appellant sought to rely upon Dr Beaumont, that witness expressly distanced himself from most aspects of the appellant's treatment of the patients and the medical philosophy upon which it rested. Dr Beaumont was critical of the appellant's failure to obtain informed consent (T.470.16).

46 Apart from reviewing and analysing the appellant's approach to the practice of medicine generally, the Tribunal considered the factual circumstances of the 13 patients whose treatment formed the basis for the complaints. It is not practical nor useful, to review the findings in relation to each patient. What I have done is to set out the Tribunal's approach and findings in relation to one patient from each group, which is indicative of the Tribunal's approach generally.

Patient KS

47 Patient KS was a female born in 1983. She was one of the five patients which formed the basis for complaint 1.1. She first consulted the appellant at the Bankstown Medical Centre in July 2008.

48 She presented with symptoms of flu, a temperature of 38.2C and with symptoms of a panic attack (dyspnoea and palpitations). She told the appellant that she was having panic attacks and had an occasional neck rash. The appellant did not record that latter information, as he regarded it as "irrelevant" to his treatment of her. The appellant did not examine her ears, nose and throat, chest or cardiovascular systems which Dr Young regarded as standard practice for a patient with flu like symptoms. The appellant did examine her neck. The appellant completed what he referred to as a "Milne Score" complaint survey in which the patient made other complaints including insomnia, tiredness, anxiety, poor concentration, poor memory and a sore neck.

49 The appellant formed the view that patient KS had "cervical spine syndrome" or "dorsal spine syndrome". He then performed a spinal manipulation on her, even though she was in a febrile state and without doing any pre-assessment. In the opinion of Dr Young, the appellant did not adequately document a history, nor carry out any examination, nor did he set out a management plan in the medical records. There was no record in the notes of arrangements for follow up or patient education about her current illness. He issued patient KS with a medical certificate stating that she was "suffering from influenza". In the appellant's opinion her flu was caused by the cervical spine syndrome and it was appropriate to treat "influenza illnesses" with spinal manipulation. The appellant considered that she had "very considerable cerebral symptoms", i.e. a non-specific brain abnormality.

50 The appellant saw patient KS on 1 August 2008 when she consulted him in connection with a laryngeal cough. The appellant performed a spinal manipulation. The appellant diagnosed "arthritis". The clinical notes relating to that consultation, did not document an examination or the taking of a history. In Dr Beaumont's opinion spinal manipulation was not a generally accepted approach to the treatment of laryngeal cough by a general practitioner, nor did he think there was a basis for a diagnosis of arthritis. (The appellant used the term "arthritis" for the ubiquitous illness that was central to his medical philosophy.)

51 Patient KS again consulted the appellant on 10 August 2008. The clinical notes did not document any symptoms, a history or any examination. A further spinal manipulation was performed. According to the appellant, patient KS came in for a spinal manipulation pursuant to her "care plan". In those circumstances, he was of the opinion that there was no need for any of those standard procedures. Dr Young was critical of the fact that the appellant only recorded in the clinical notes that a "care plan spinal manipulation had been done".

52 The next consultation upon which the Commission relied occurred on 29 August 2008 when the appellant performed a spinal manipulation in the presence of Dr Ayscough and Mr Milazzo as part of their Performance Assessment. The clinical notes did not document a history or an examination for patient KS.

53 Dr Ayscough and Mr Milazzo were critical of the appellant's performance on this occasion, including his failure to perform any adequate re-assessment of clinical symptoms or impairments of patient KS. They were critical of the manipulative technique describing it as generalised, non-specific and involving "large range procedures with high force and high velocity". The techniques employed were not known to be used in common manipulative therapy practice. Large range manipulations in the cervical spine were not employed because of concern for adverse effects from potential vascular damage. In their opinion the spinal manipulation performed was unsafe by current manipulative standards.

54 The final consultation upon which the Commission relied occurred in September 2008 when the appellant again performed a spinal manipulation. There was no history documented and no examination undertaken prior to the manipulation.

55 In Dr Young's opinion, the management of patient KS by the appellant on each of these occasions was significantly below the standard expected of a practitioner of an equivalent level of training and experience. In his opinion, spinal manipulation was not an appropriate treatment for the symptoms with which the patient presented. In response to those criticisms, the appellant submitted that patient KS came to no harm as a result of the treatment. He submitted that she returned for more treatment and that she provided informed consent to the treatment. Given the ignorance of the assessors, Dr Ayscough and Mr Milazzo, of the fundamental precepts underlying a spinal manipulation approach to her neurological problems the appellant submitted that their criticisms were both immature and spurious.

56 The Tribunal preferred the evidence of Drs Young, Ayscough and Mr Milazzo to that of the appellant. That the patient came to no harm and returned for more treatment was, in the opinion of the Tribunal, not to the point. It considered the risks associated with the appellant's rigid approach were unacceptable.

57 The Tribunal found that the appellant failed to adequately document a history or examination and failed to formulate an adequate management plan in the records and failed to perform adequate clinical assessments or re-assessments. It found that the appellant failed to properly assess the patient for risk before performing the spinal manipulations and that the spinal manipulation performed on 29 August 2008 was unsafe by current manipulative standards.

58 The Tribunal found that the appellant did not inform patient KS that cervical spine syndrome and dorsal spine syndrome were not conditions that were accepted by general medical practice, or that spinal manipulation was not orthodox treatment for her condition. He did not explain to her the risks associated with forceful spinal manipulation. The fact that she was a health care professional did not relieve him of the need for full and proper disclosure.

59 In those circumstances, the Tribunal found that patient KS did not give informed consent to the appellant for the spinal manipulations he carried out. The Tribunal was satisfied that the appellant's clinical assessment of patient KS was significantly below the standard expected of a practitioner of an equivalent level of training and experience.

Patient NC

60 Patient NC was a male, born in 1977. He was one of the eight patients who formed the basis for complaints 2.1 and 2.2. He first consulted the appellant at Bankstown in November 2002 for abdominal pain and diarrhoea. A spinal manipulation was performed. The patient next consulted the appellant in October 2006 complaining of an eye irritation.

61 The appellant told patient NC that there was nothing wrong with his eyes but that his brain was causing his symptoms and that spinal manipulation would fix the problem. The appellant then treated patient NC for his eye condition with a spinal manipulation. The therapy was ineffective and a short time afterwards the patient consulted an opthalmologist, who diagnosed "chronic eye irritation" caused by allergic conjunctivitis. He was treated with eye drops, which solved the problem within about one week. That diagnosis was reached after the patient had a skin test that determined that the cause of the allergy was grass and pollen.

62 According to the appellant the diagnosis of allergic conjunctivitis was "an inferior diagnosis". He described it as "very conventional", the "approach that GPs would ordinarily take to such a problem". In his opinion, the patient's symptoms were the result of a brain condition. He reported to the referring doctor that there was no abnormality in the patient's eyes so the problem must be in the nervous system.

63 In Dr Beaumont's opinion giving a spinal manipulation as first line treatment to a presentation of irritated eyes in general practice was inappropriate. Because the appellant had not explained to patient NC that the diagnosis he had reached was not recognised in general practice, or that the proposed therapy was outside the parameters of mainstream health care and general practice, Dr Beaumont was of the opinion that the patient was misinformed about the scientific "evidence" and consequently his consent was not "informed".

64 Dr Jammal was of the opinion that the appellant's treatment of patient NC was "markedly inadequate" and that it departed significantly from the standard expected of a practitioner of an equivalent level of training and expertise.

65 In reply the appellant submitted:

"Patient NC's complaint about his treatment in my hands turned out to be spurious because it was made too early in the course of his illness.

When looked at from a long term perspective, he achieved a very good result from brain-based, spinal manipulation treatment of his ocular irritation ..."

66 The Tribunal found that the appellant had wrongly diagnosed NC's condition, had provided inappropriate treatment and failed to provide sufficient information so as to enable the patient to give informed consent for a spinal manipulation. As a result, the Tribunal was satisfied that the appellant's management and treatment of patient NC was significantly below the standard expected of a practitioner of an equivalent level of training and experience.

67 As the above summaries make clear, although the appellant relied upon the transcript of evidence of Professor Bonello and the evidence of Dr Beaumont, their evidence at best provided marginal support for his philosophy and treatment of patients. Their opinions were more in line with those of the witnesses called by the Commission, i.e. Drs Young, Ayscough, Jammal and Ieraci and Mr Milazzo.

68 In defending the complaints in the Tribunal, the appellant relied essentially upon his medical philosophy to justify his conduct:

"There is no evidence that ... my dissenting philosophy and practice has been proven to be incorrect or even misguided."

69 The appellant submitted that his style of medical practice was economical, panoramic in philosophy, effective and safe. No patient had come to harm as a result of his treatment, apart from patient CR (CR had a pethidine dependency and the appellant agreed that he had over-prescribed that substance to her). The appellant submitted that the majority of his patients were satisfied with his treatment. He submitted that not only did his medical actions not merit the criticism of unsatisfactory professional conduct, but that the Tribunal should remove all conditions and return him to full medical practice.

70 The appellant submitted that his spinal manipulation treatment was scientifically based. In comparison, orthodox medical practice was inordinately expensive, generally palliative, restrictive in philosophy and often dangerous. He submitted that once orthodox medical practice left the parameters of trauma, resuscitation, complicated obstetrics, pain relief and public health it was incompetent and incomplete. The witnesses who criticised his medical behaviour like most medical practitioners were ignorant of the basic principles of neuro-vascular medicine. In that respect, he submitted that the Commission's case was based on ignorance.

71 The appellant denied that he failed to obtain informed consent for his spinal manipulation treatment. He said that he had fully explained the treatment to his patients. He did not regard it as necessary to explain to them other treatments which were ineffective and which did no more than produce a "placebo effect". The appellant submitted that had any patient sought a full discussion of alternative forms of therapy, he would have provided that information.

72 The appellant submitted that he performed the important function of being a whistleblower. He said:

"In this Tribunal hearing the Respondent has brought to the fore allegations of medical corruption in Australia which have injured countless millions of persons worldwide."

73 The appellant identified the corruption to which he referred as the decision of the then executive of the Royal Australian and New Zealand College of Opthalmologists to "bury" the recovery of vision which occurred when the spine was manipulated in appropriate patients. He submitted that the winding back of the effects of this corruption could only occur if the Tribunal found in his favour.

74 The appellant placed reliance upon the asserted cost effectiveness of his treatment. In that regard, he referred to the evidence of Mr Sullivan, concerning "the totally unsustainable cost of ambient health care" if orthodox medical treatment continued to be provided. He referred to a graph provided by Mr Sullivan from the Congressional Budget Office of the United States which indicated that overall health care expenditure in that country would reach 99 percent of that country's gross national product by 2082 if the cost of health care kept rising at the present rate.

75 Mr Sullivan was the Chairman of the rural branch of the Liberal Country Party in the Northern Territory and a member of the board of the Katherine Hospital. As is apparent, Mr Sullivan's contribution to the proceedings was limited given his lack of medical qualifications.

76 The appellant submitted that the Tribunal should accept his evidence and his medical philosophy because it had been suppressed and reject the medical opinion of his peers of good repute as fundamentally unsound. He submitted that the acceptance of the opinion of peers of good repute was only reasonable if the "opinion" was fundamentally sound.

77 He said:

"The opinion of my peers of good repute is fundamentally unsound because for more than 30 years they have been denied cogitation of critical scientific information by medical academics in Australia in particular those of the Royal Australian and New Zealand College of Opthalmologists."

78 In reaching its decision, the Tribunal correctly observed that it was not its role to assess or determine the validity or otherwise of the appellant's medical philosophy. The Tribunal saw its role as considering and judging his professional conduct against the standard reasonably expected of a practitioner of an equivalent level of training and experience. In relation to that philosophy, however, the Tribunal did note that to the extent that the appellant relied upon his medical philosophy to justify his care and treatment of patients, that philosophy had never been independently validated.

79 The Tribunal accepted the evidence of Drs Young, Ayscough, Jammal and Ieraci and that of Mr Milazzo. It also accepted substantially the evidence of Professor Bonello and Dr Beaumont. It rejected the evidence of Mr Sullivan as irrelevant and rejected the submissions of the appellant.

80 In relation to the conduct of the appellant, the Tribunal made the findings set out at [18**] and [19**] hereof in respect of Complaint 1.1. In respect of Complaints 2.1 and 2.2 the Tribunal made the findings set out at [23**] and [24**] hereof.

81 In relation to the appellant's competence, the Tribunal held that the appellant had rigid and firmly held views that nearly every illness, whatever it was, would be better after spinal manipulation, such that it was virtually always appropriate. It found that he held the accepted principles and framework of general practice in disdain and considered that general practitioners practising in accordance with accepted general practice, were the lowest common denominator, conducting inferior practices.

82 The Tribunal was satisfied that the appellant would be unlikely to talk to patients about treatments, other than spinal manipulation, because he did not see any point in advising patients to have inferior treatment; and that on being instructed in the philosophy of spine-induced neurological syndromes by the appellant, most patients would proceed to have spinal manipulation performed by him. It found that he was inflexible, and that his spinal manipulation technique had not been adapted for 30 years and that he rejected out of hand any modification to it, or any supervision.

83 The Tribunal was satisfied that in relation to the 13 patients, the appellant not only did not obtain informed consent, but had obtained what Dr Beaumont described as "misinformed" consent.

84 The Tribunal found that the appellant's rigidity inhibited his ability to take on new information. It found that his fixed belief that others were responsible for the failure of the promulgation of his medical philosophy was an example of his firmly held views. It noted that Dr Beaumont repeatedly pointed out to the appellant in his evidence what was required for the validation and acceptance of his medical philosophy by the wider profession but that the appellant stubbornly refused to accept the reality of the situation, choosing instead to assert that it was for others to disprove his theory. The Tribunal was concerned at the appellant's dismissive attitude to the risks associated with his technique of spinal manipulation. Contrary to the appellant's asserted position that the therapy was safe, which he based on an absence of problems to date, it was satisfied that the technique of spinal manipulation employed was inherently and unpredictably risky to a substantial degree, particularly his spurning of the contra-indicators employed by conventional manipulative therapists.

85 The Tribunal found that the risk associated with the appellant's method of spinal manipulation was not supported by currently accepted standards, particularly in the case of vulnerable patients. It found that express, careful and precise information was required to be given to patients in the manner and with the content described by the experts. As a result, the Tribunal was satisfied that the Commission had proved to the requisite standard of proof that as a result of the appellant's rigid and firmly held views, there was a real risk that he:

(i) Will fail to correctly diagnose the patient's medical condition; and

(ii) Is unlikely to give impartial advice to patients to enable them to give informed consent.

86 Having regard to its findings in respect of the patients, both individually and collectively, and the risks associated with and arising out of the appellant's rigid and firmly held views, the Tribunal found that the Commission had clearly made out its allegations in complaint 2.3. In respect of complaint 2.3 therefore the Tribunal was satisfied that the Commission had proved to the requisite standard of proof that the appellant was not competent to practise medicine within the meaning of s 139 of the National Law in that he did not have sufficient physical capacity, mental capacity knowledge and/or skill to practise medicine.

Notices of Motion

87 Before dealing with the specific matters raised in the Notice of Appeal, it is necessary to consider the appellant's motions. In the course of the hearing on 18 July 2012, three motions brought by Dr Gorman were dismissed, for reasons that were given in the course of the hearing on 18 July 2012. Those motions were the "adjournment motion", filed on 13 March 2012, the "fraud motion" filed 21 March 2012, and the "film transcript motion" filed 24 February 2012. No costs orders were made at the time concerning those notices of motion. As well, the second prayer for relief of the "second new evidence motion" filed on 3 April 2012 was dismissed. Judgment was reserved concerning the balance of the various motions that were heard on that day.

88 The first motion that remains to be considered is the "Appeal Motion".

89 By this motion the appellant sought a review of the decision of Macfarlan JA of 9 December 2011 in which his Honour dismissed five other motions brought by the appellant (see [9***] - [10***] hereof).

90 The right to seek a review arises under s 46(4) Supreme Court Act 1970 (SCA) which provides:

"46(4) The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal."

91 This right of review is not described as an appeal and is not an appeal within the meaning of s 19(2) SCA. The nature of the review was discussed by this Court in Kalifair Pty Ltd v Digi -Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 at [7]. There the Court (Handley, Sheller and Ipp JJA) said:

"This Court has yet to determine the nature of the power conferred by s 46(4). In Wentworth v Wentworth (1994) 35 NSWLR 726 Mahoney JA said (731) that the party seeking the discharge or variation of the order of a single Judge of the Court had to establish that the Judge had "misdirected himself in principle or that the order made was clearly wrong". Handley JA (733) was of the view that the power of a Full Court "is at least subject to the principles in House v The King [1936] HCA 40; 55 CLR 499 and Re: Will of Gilbert [1946] 46 SR (NSW) 318; while Powell JA considered (737) that an application had "to demonstrate that the discretion vested in the primary Judge clearly miscarried"."

92 In Fleet v Royal Society for the Prevention of Cruelty to Animals NSW & Ors [2008] NSWCA 227 the Court (Basten Campbell JJA and Handley AJA) said at [71]:

"... While an application under section 46(4) is not the equivalent of an appeal, it is still necessary to point to some error in the decision concerning which the review is sought: see Wentworth v Wentworth (1994) 35 NSWLR 726, 729-731 (Mahoney JA), 733 (Handley JA), and 736-7 (Powell JA); Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [4]."

93 For the reasons which follow, no error has been shown in the decision of Macfarlan JA in relation to those motions. Insofar as his Honour decided those motions on the basis that it was not appropriate to consider them in advance of the hearing, his reasoning is not applicable now that the time for the hearing has arisen. However, even if the matters in those motions were considered afresh, each should be rejected for the reasons which follow.

94 Accordingly, this motion should be dismissed.

"Whistleblower" motion

95 In this motion the appellant seeks two orders:

(1) That he is a whistleblower of incompetent and incomplete medical practice affecting patients in Australia and elsewhere which follows from the dereliction of duty by the medical profession in Australia to acknowledge and elucidate the phenomenon of the recovery of vision, which occurs, in appropriate patients when the spine is manipulated. This dereliction of duty followed the categorical demonstration of this phenomenon on the "60 Minutes" program in 1986 and by publication of many subsequent articles in reputable, peer reviewed scientific journals which confirmed the reality of the occurrence.

(2) That as a whistleblower the appellant is entitled to a special protection by the Court first under the Briginshaw Principle of Australian Case Law; second under article 10 of the Universal Declaration of Human Rights; third under the spirit of the recently legislated "Protection for Whistleblowers who Report Incident of Medical Malpractice and such like under the mandatory reporting regulations"; and fourth under the laws of "common sense".

96 An interlocutory application should bear an appropriate relationship with the principal proceedings if it is to be heard with or as part of those principal proceedings. At the very least, the relief which is sought in an interlocutory motion must be relief which is sought for the purpose of advancing the claims made in the principal proceedings Re Jay-O-Bees Pty Ltd (in liq) [2004] NSWSC 818; (2004) 50 ACSR 565 at [63] - [72]. Such a purposive requirement has long been recognised. The relevant principles were set out in Phillips v Walsh (1990) 20 NSWLR 206 by McLelland J. There his Honour said at 210:

"The question whether any particular application can properly be made in existing proceedings is a matter to be determined according to general law principles as modified by any relevant statutory provision ... This exceptional qualification does not, however, extend to an application made for the purpose of giving substantive relief not sought in the statement of claim or which is substantially different to that given by the final order: See generally Haviland v McLeary (1894) 15 LR (NSW) (Eq) 22; 10 WN (NSW) 146; Poisson and Woods v Robertson and Turvey (1902) 86 LT 302; 50 WR 260; 46 Sol Jo 196; Dowdle v Hillier Cristel (1951) 2 KB 725 and Re: Scott (1964) 82 WN (Pt 1) (NSW) 313; [1964-65] NSWR 1636."

97 By reference to that test, this motion clearly lacks the necessary relationship to the subject matter of the appeal, namely the demonstration of error of the Tribunal with respect to a point of law. In addition, the order sought lacks the precision appropriate to a declaration of right and the HCCC is not a proper contradictor.

98 The motion was rightly dismissed.

"Stay" motion

99 By this motion the appellant sought an order that:

"His de-registration is stayed in order for him to gain access to the parents of AT with the aim of giving them the "choice" to decide whether this severely disabled child should continue with his spinal manipulation treatment, which had improved the child to their satisfaction, followed by retrogression once treatment was stopped".

100 Macfarlan JA dismissed this motion on the basis of the seriousness of the findings which the Tribunal had made against the appellant. His Honour said:

"7 In light of the Commission's opposition to the stay order sought by Dr Gorman, the views expressed by the Tribunal concerning the inappropriateness of Dr Gorman practising as a medical practitioner and the fact that Dr Gorman's appeal against the Tribunal's decision is yet to be heard and determined, I do not consider it appropriate to grant the stay order that Dr Gorman seeks. While the order in itself would not permit Dr Gorman to treat AT or otherwise act as a medical practitioner, it is plainly designed to be a step towards that occurring. For the reasons that I have given that is not appropriate unless and until he is successful on his appeal. As I would refuse the order sought as a matter of discretion, it is unnecessary to deal with the Commission's submission that the Court has no power to make the order sought".

101 The order that the appellant seeks in this motion is not a stay. What the appellant is in effect seeking is an order that he be allowed to treat patient AT, i.e. an order reinstating his right to practise (at least in part).

102 At the hearing of the motion, it was common ground that the appellant's deregistration under the MP Act and the cancellation of his registration under the National Law had already been effected as a result of the Tribunal's orders of 17 August 2011. The deregistration and cancellation of registration took effect on 18 August 2011. Thus the order which the appellant seeks relates to actions which have already taken place.

103 It is not possible to have a stay of an order that has already taken effect (McBride v Walton [NSWCA, unreported, 27 August 1993 - Handley JA); AVS Group of Companies v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302 at [26], [93] - [95], [191; Collier v Cook [2012] NSWCA 50 at [11]).

104 It follows that the motion was rightly dismissed.

"Briginshaw" motion

105 By this motion the appellant seeks an order:

"That the "Briginshaw Principle" is not "all or none", but rather the onus lies with the Court to be certain: to be absolutely sure, that its decision is the correct one, increases in keeping with the overall ramifications of the said decision, not only those which affect the parties to the dispute, but also those which affect the community as a whole."

106 The subject matter of this motion is the decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The motion and the affidavit in support appear to seek that by way of law reform or by some other means not specified, the standard of proof required to be made out in that case and analogous cases should be changed to make it more difficult to satisfy.

107 It is clear from the form of the order sought that the appellant seeks a decision concerning the manner in which a legal principle operates or is to be applied. Given the binding nature of High Court authority, the order sought is beyond the power of this Court. Moreover, seeking a declaration on a notice of motion is inappropriate. Finally the order sought lacks the precision appropriate for a declaration of right.

108 The notice of motion was rightly dismissed.

"Philosophy" motion

109 In this motion the appellant seeks an order:

"That the failure of medical scientists, notably those of the Royal Australian and New Zealand College of Opthalmologists, to address (meaning cogitate and ponder confirm or negate) the sciences of the recovery of vision as a result of spinal manipulation therapy has harmed more people worldwide than any other catastrophe in the history of humanity."

110 The affidavit in support, together with the accompanying submissions, assert the correctness of the appellant's medical philosophy and contend that previous decisions of the Tribunal and this Court have been made on an incorrect basis.

111 The motion is misconceived. It seeks an order that expresses an opinion about the importance of a certain alleged attitude of medical scientists. It was rightly dismissed for the following reasons:

(a) It is inappropriate to make what amounts to a declaration on a notice of motion.

(b) There is a lack of the necessary relationship of the order sought to the principal relief, i.e. demonstration of error of the Tribunal with respect to a point of law.

(c) The order sought lacks the precision appropriate for a declaration of right.

(d) The HCCC is not a proper contradictor.

(e) The order sought affects a non-party which has not been joined.

(f) The declaration sought concerns the existence of a fact arrived at by the application of an evaluative standard, not a declaration of right. The power of the Court under s 75 SCA is to "make binding declarations of right".

"Moving on" motion

112 By this motion the appellant sought an order:

"That science and practice of health care "moves on" as a result of change in the knowledge base: what was previous "Best medical practice" is superseded by the uptake of scientific innovations and discoveries, which demonstrate that a new approach, to the respective medical problems or procedures is mandatory."

113 This motion seeks a declaration from the Court concerning the manner in which medical science advances. The motion is misconceived for the reasons already enunciated in relation to the previous motions. It is inappropriate to make what amounts to a declaration on a notice of motion. The motion lacks the necessary relationship between the orders sought and the principal relief, i.e. the demonstration of error of the Tribunal with respect to a point of law. The order lacks the precision appropriate to a declaration of right and the HCCC is not a proper contradictor.

114 The motion was rightly dismissed.

"New information" motion

115 In this motion the appellant seeks the following order:

"That new information, which was not presented to the court below: the Medical Tribunal, be heard in the appeal of Richard Francis Gorman against his deregistration as a medical practitioner. This information concerns Adolph Hitler: the German leader and Tom Skeyhill: an Australian soldier, poet and esteemed public speaker and, who died in 1932."

116 This was not a motion heard by Macfarlan JA. It was filed in January 2012 and the Registrar of the Court of Appeal ordered that it be heard with the appeal. In substance, the motion seeks the leave of this Court to receive additional evidence.

117 The additional evidence comprises:

(i) A newspaper article that reports on a book that included some medical discussion of Hitler.

(ii) A newspaper report of a biography of a WW1 soldier together with an entry in the Australian Dictionary of Biography concerning that soldier;

(iii) A transcript of a radio broadcast made in 2008 about that soldier.

(iv) An article from the journal "Scientific American".

118 The motion is misconceived. The appeal from the Tribunal to this Court is an appeal from a "specified Tribunal" within the meaning of s 48 SCA. Accordingly, s 75A SCA applies. Section 75A provides for the Court to receive additional evidence in some circumstances. However, pursuant to

s 75A(4), s 75A applies only "subject to any Act". In this appeal s 162(1) of the National Law confines the issue for this Court to whether there was a decision of the Tribunal which was erroneous in point of law. Given that limitation, the additional evidence which is sought to be adduced, is irrelevant.

119 The motion should be dismissed.

2nd new evidence motion

120 As indicated, the second prayer for relief in this motion was dismissed in the course of the hearing. This still leaves the first prayer for relief unresolved.

121 The order sought is:

"1. The appellant moves that the Supreme Court of Appeal acknowledges that the litigation, of motions before it, is separate from the actual appeal litigation, such that there should be no restriction on evidence brought forward to advance the appellant's pleadings in the litigation of each separate motion."

122 By this motion the appellant seeks to adduce evidence unrelated to the principal relief sought in the appeal. What is being sought is in effect an unrestricted right to adduce further evidence.

123 For the reasons given in relation to the "whistleblower" motion, an interlocutory application should bear an appropriate relationship with the principal proceedings if it is to be heard with or as part of those principal proceedings. At the very least, the relief which is sought in an interlocutory motion must be relief which is sought for the purpose of advancing the claims made in a principal proceeding (Re Jay-O-Bees Pty Ltd (in liq). This order does not bear the necessary relationship to the principal relief and should be dismissed.

The appeal

Nature of the appeal

124 The nature of an appeal under s 90(1) MP Act (which is in identical terms to s 162(1) National Law) was considered in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. There Basten JA, with whom Giles JA and Bergin J agreed, said:

"15 In Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 at [124], Spigelman CJ (Priestley JA agreeing), after noting that the phrase in consideration in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 137 used the formulation "point of law", not "error of law", continued:

"The expression 'question' or 'point' of law is wider than 'error of law'."

16 The different formulations to which his Honour referred may need to be read in context in order to identify their differential effect. Thus, the provision in issue in Attorney-General (NSW) v X was the power of the Attorney to submit "any question of law arising from or in connection with" contempt proceedings, to the Court of Appeal: Supreme Court Act 1970 (NSW), s 101A(1). The provision in question in Azzopardi was one conferring a right of appeal on a party to proceedings in the Workers Compensation Commission who was "aggrieved by any award, order, ruling, direction or decision of the Commission, in point of law or in relation to the admission or rejection of any evidence": Workers' Compensation Act 1926 (NSW), s 37(4)(a) (as in force prior to the Workers' Compensation (Amendment) Act 1984 (NSW). Other provisions confer a right of appeal "on any question of law arising out of an award", being the language of the Commercial Arbitration Act 1984 (NSW), s 38(2). In the present case, the right of appeal lay against "a decision of the Tribunal with respect to a point of law". There may be some ambiguity as to whether it is the appeal or the decision which must be with respect to a point of law: however, to require the identification of a decision with respect to a point of law would so limit the operation of the provision as to render the construction untenable, in the absence of clear authority requiring that approach. As already noted, the authority is to the contrary. Accordingly, it is sufficient if the Appellant can identify a decision of the Tribunal which, if it is not the ultimate decision is material to it, and that the decision was erroneous in point of law."

125 That analysis was applicable to s 162(1)(a) National Law. In relation to s 162(1)(b) Basten JA said:

"20 If the Court were minded to allow the appeal on the first ground, the Commission invited it to make a finding that the Respondent was not of good character and then proceed to make an order that his name be removed from the register. The power to take that step was not in issue, though the necessity to do so was. However, if the Court were not minded to make such a finding, the second and third grounds of appeal challenged the orders made by the Tribunal, based on the finding of professional misconduct. It was accepted that a challenge to those orders required the establishment of error on the part of the Tribunal in relation to the exercise of a discretionary power, in accordance with the principles established in House v The King (1936) 55 CLR 499."

Grounds of Appeal

126 The appellant divided the Grounds of Appeal into various sections. The first of these was headed "Matters Pertinent to "Briginshaw"". The approach followed by the appellant was to assert as a general proposition that the Tribunal had only played lip-service to the Briginshaw principle in its judgment and to then apply that criticism to an extensive list of other issues. Those issues involved findings of fact, rather than errors with respect to a point of law.

127 The criticism that the Tribunal did not apply the Briginshaw principle is not made out. The Tribunal was well aware of the seriousness of the task upon which it embarked. At [9] of its decision, the Tribunal said:

"The Tribunal accepts the Commission's submission that it bears the onus of proving the complaints to the Tribunal's reasonable satisfaction on the balance of probabilities. When applying that standard, the Tribunal will have regard to the gravity and importance of the matters to be determined in accordance with the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, such that the Tribunal should not lightly make any findings in respect of the serious allegations made against the respondent: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170."

128 The first ground of appeal was that the Tribunal unreasonably determined that the appellant was not a "whistleblower". The Tribunal gave extensive consideration to the appellant's submissions that he was a "whistleblower" but correctly found that this was an irrelevant consideration to the issues which it had to decide.

129 Grounds 1 (b), (c) and (d) challenge the Tribunal's acceptance of "outdated medical philosophy", "the opinions of so called "medical experts"" and the Tribunal's preference for the evidence put forward on behalf of the Commission, rather than that put forward by the appellant. The description of these Grounds of Appeal makes it clear that they raise issues of fact. The preference by the Tribunal for one body of evidence over another, involves an exercise in fact finding.

130 To the extent that Ground of Appeal 1(d) suggests some kind of unfairness in the Tribunal's approach to the evidence, that assertion is not made out. Every opportunity was given to the appellant to call the evidence upon which he wished to rely. It is clear from the Tribunal's reasons that it gave extensive consideration to the appellant's submissions and set them out in detail. When recording the evidence of the Commission's witnesses, the Tribunal always recorded the appellant's response to that evidence.

131 The statutory task of the Tribunal, as part of determining whether the complaints were proven to the requisite standard, was to consider "the standard reasonably expected of a practitioner of an equivalent level of training or experience". This necessarily required the Tribunal to consider expert medical evidence as to the standard that was reasonably expected. The Tribunal carried out the task. That the Tribunal, after weighing all the evidence, preferred the evidence of the experts called by the Commission does not constitute a denial of natural justice or an error of law. In any event, the expert evidence upon which the appellant relied, i.e. Dr Beaumont and the transcript of the evidence of Professor Bonello, did not support his submissions.

132 Grounds of Appeal 1 (a), (b) and (c) do not raise points of law and to the extent that ground 1(d) suggests unfairness or a denial of natural justice, the factual basis for such a complaint has not been made out.

133 Ground of Appeal 2 is divided into six parts and it forms part of the "Briginshaw" section of the appeal. By reference to a failure to observe the Briginshaw standard, the appellant raises the following issues in those grounds.

2(a) The Tribunal failed to properly educate itself so as to understand the appellant's medical philosophy.

2(b) The Tribunal failed to adequately have regard to the voice of the community by not giving proper weight to the evidence of Mr Sullivan.

2(c) The Tribunal failed to give adequate weight to the evidence of two patients to the effect that their condition had been significantly improved as a result of spinal manipulations by the appellant.

2(d) The Tribunal was procedurally unfair because it deterred the appellant from properly developing his film based exhibits in that it preferred to look at the video presentations outside the courtroom where the appellant could not explain their significance.

2(e) The Tribunal failed to give adequate weight to the "60 Minutes" video which went to air in June 1986.

2(x) The Tribunal failed to appreciate the lack of expertise on the part of Drs Young and Jammal by comparison with the appellant's knowledge and experience.

134 In relation to Ground 2(a), the Tribunal gave extensive consideration to the appellant's medical philosophy. Its decision to prefer other evidence was a factual finding. This ground does not raise a point of law.

135 Ground 2(b) - The weight to be given to the evidence of Mr Sullivan was a factual finding by the Tribunal. Even though Mr Sullivan's evidence had little, if any, relevance to the complaints, the Tribunal set out the effect of his evidence. This ground does not give rise to a point of law.

136 Ground 2(c) - This ground relates to the weight which the Tribunal gave to certain evidence. That evidence was fully considered. In weighing the evidence the Tribunal relied on the evidence of expert witnesses, rather than the evidence of lay persons. This involved a finding of fact, not a point of law.

137 Ground 2(d) - The appellant tendered nine DVDs in evidence. The DVDs were given to Tribunal members before the hearing and during the hearing each of the Tribunal members confirmed that they had watched all of the video exhibits in their entirety. Nowhere in the transcript of the hearing was there any pressure exerted by a member of the Tribunal on the appellant such as would cause him not to play any or all of those DVD videos had he so wished. On the contrary, the transcript makes clear that the appellant was given ample opportunity to play the DVDs during the hearing.

138 In the course of the hearing, DVD evidence was shown to Dr Ayscough, Mr Milazzo, Dr Young, Dr Jammal and Dr Iraeci in cross-examination. On four separate occasions, DVDs were shown to the Court as part of evidence-in-chief. On three separate occasions, DVDs were shown to Dr Beaumont during his evidence-in-chief. A DVD was shown to Mr Sullivan during his evidence in chief. The DVD referred to at Black 389Y was a film made in 1974 entitled "Traumatic Cervical Spine Syndrome" which took 40 minutes to play. Later at Black 395E the Chairperson of the Tribunal suggested to the appellant that it was not necessary to play the DVD since the Tribunal members had already watched all of the DVDs. When the appellant stated that he still wished to lead the Tribunal through the DVD, he was allowed to show it. The showing of that DVD took 20 minutes of hearing time.

139 There is no basis for the appellant's assertion that he was denied procedural fairness in relation to the playing of his DVD evidence. This ground of appeal has not been made out.

140 Ground 2(e) - The submission that the Tribunal did not refer to the DVD evidence is not made out. The Tribunal specifically referred to the DVD evidence, together with the three books tendered by the appellant. This is despite the fact that the books and DVD evidence related to the appellant's medical philosophy and techniques but was unrelated to any of the 13 patients, the subject of the complaints before the Tribunal.

141 In submissions the appellant was critical of the Tribunal for only admitting the DVDs as exhibits, and not having the dialogue recorded separately on the transcript. This is despite the fact that it was made clear to the appellant during the hearing that the audio on the DVDs played in court would not be separately transcribed because by admitting the DVDs as exhibits, the whole of the content of those DVDs would be in evidence.

142 There was no denial of natural justice in relation to the DVD evidence. In any event, the weight to be given to the DVD evidence raises an issue of fact, not a point of law.

143 Ground 2(x) - This ground has no substance. The acceptance of the evidence of some witnesses, rather than that of others, raises a factual issue not a point of law.

144 In summary, none of the "Briginshaw" grounds of appeal have been made out.

145 The next section of the Grounds of Appeal relied upon by the appellant is "Matters Pertinent to Witnesses". There are four Grounds of Appeal in this section:

Ground W(a) - The Tribunal gave undue weight to the written evidence of Dr Beaumont.

Ground W(b) - The Tribunal gave undue significance to the limited oral evidence of Dr Beaumont.

Ground W(c) - Dr Beaumont's opportunity to give evidence was greatly restricted by limiting the duration of the evidence which he could give.

Ground W(d) - The Tribunal failed to give adequate weight to the concession of Dr Ayscough when he advocated some spinal manipulation.

(The Notice of Appeal NA did not contain in Ground E(f).)

146 Grounds W(a) and W(b) - These two grounds do not raise a point of law. Questions of weight of evidence raise factual issues only.

147 Ground W(c) - Dr Beaumont was called in the appellant's case. The appellant advised the Tribunal that he was only available on Monday 6 June 2011. On the day before Dr Beaumont was due to give evidence, the Chairperson advised the appellant: "I doubt he'll take all day, but if you think he will, he will" and "We'll devote as much time as we need to Dr Beaumont. I maybe totally wrong in my estimate" (Black 500B).

148 Dr Beaumont had already provided a written expert opinion, which was served in advance of the hearing. Notwithstanding that the usual practice was that an expert would undergo little or limited examination in chief at the hearing, the appellant was permitted to adduce further evidence in chief from Dr Beaumont for almost half a day (40 pages of transcript). During this time, the appellant chose to use some of the time available to him to play a DVD to Dr Beaumont.

149 Just before morning tea, the appellant indicated to the Tribunal that he was almost finished leading the further evidence in chief. The morning tea break was shortened to allow the maximum amount of time to hear evidence from Dr Beaumont. The transcript makes plain that the appellant then finished his examination in chief shortly before lunch without any pressure from the Tribunal.

150 Notwithstanding the significant length of the examination in chief, counsel for the Commission commenced and finished the cross-examination of Dr Beaumont that day. The appellant was then given the opportunity to re-examine Dr Beaumont. In relation to the re-examination, the appellant was given permission to raise topics which were not properly the subject of re-examination. The appellant finished his re-examination in his own time without being stopped by the Tribunal.

151 Accordingly, the appellant was given an adequate opportunity to adduce evidence from Dr Beaumont. This ground of appeal has not been made out.

152 Ground W(d) - Dr Ayscough as a musculoskeletal physician was an advocate of spinal manipulation in appropriate circumstances. His evidence was that the appellant's spinal manipulation techniques were not safe and were below the standard used by those practitioners who did use spinal manipulation. Accordingly, there was no concession or resiling by Dr Ayscough from the position which he consistently maintained throughout the giving of his evidence. Even if he had made a concession in his evidence, the use which the Tribunal made of that concession raises an issue of fact, not one of law.

153 It follows that the witness grounds of appeal have not been made out.

154 The next section in the Notice of Appeal is headed "Matters Pertinent to Exhibits". It comprises nine parts:

Ground E(a) - This ground asserted a failure by the Tribunal to properly have regard to exhibit 13.

Ground E(b) - This ground asserted a failure by the Tribunal to have proper regard to exhibit 14.

Ground E(c) - This ground asserted a failure by the Tribunal to properly take into account the extensive training and experience of the appellant as demonstrated by exhibit 17 and that this failure amounted to "Wednesbury irrationality".

Ground E(d) - This ground asserted a failure on the part of the Tribunal to properly assimilate the technical information in exhibit 10.

Ground E(e) - This ground asserted a failure by the Tribunal to assimilate all the documentation provided by the appellant, with particular reference to exhibit 5.

Ground E(g) - This ground asserted that the Tribunal gave no weight to the plight of patients at the Katherine Hospital as set out in exhibit 8.

Ground E(h) This ground asserted a failure by the Tribunal to have adequate regard to the fact that macular degeneration was a vascular condition in accordance with exhibit 12.

Ground E(i) - This ground asserted that the Tribunal gave no weight to exhibit 11.

Ground E(j) - This ground asserted a failure by the Tribunal to assimilate the evidence in exhibits 2, 3 and 4.

155 Ground E(a) - Exhibit 13 was a graph created by the appellant tracking temperatures and shown to his expert, Dr Beaumont, when he was giving evidence. The appellant sought to rely upon this exhibit to support his opinion that it was appropriate to treat a child (patient JEK) suffering a fever and pneumonia with spinal manipulation. When exhibit 13 was shown to Dr Beaumont, his response was that it did not "provide us with evidence of any significant value" (T.453.07).

156 It was open to the Tribunal to prefer the testimony of the Commission's experts and that of Dr Beaumont so as to give little weight to exhibit 13. In any event, this ground raises a factual issue and not a point of law.

157 Ground E(b) - Exhibit 14 was a document containing Medicare statistics, which was put forward by Mr Sullivan, when he was giving evidence. The appellant relied upon the exhibit to support his submission that carrying out spinal manipulation for a wide variety of ailments presenting in general practice would save significant health costs.

158 It was open to the Tribunal to prefer the expert evidence relied upon by the Commission. This is particularly so given Mr Sullivan's lack of medical qualifications. The ground raises a factual issue and not a point of law.

159 Ground E(c) - Exhibit 17 was the appellant's CV. This ground raises a factual issue and not a point of law. The Tribunal referred in detail to the appellant's qualifications, his experience, his published works and his medical philosophy. In preferring the evidence of the Commission's experts, together with that of Professor Bonello and Dr Beaumont, no question of Wednesbury unreasonableness arose. The Tribunal was doing no more than weighing and assessing a particular piece of evidence.

160 Ground E(d) - Exhibit 10 was an article by the author Gilman-Sachs about Flow Cytometric Analysis and its contribution to chronic headache in patients. Contrary to the appellant's submissions, the Tribunal did take into account and consider his views about "interictal migraine". As part of its assessment of the evidence, it was open to the Tribunal to prefer the evidence of the experts called by the Commission, together with the opinion of Dr Beaumont. This ground raises a factual issue not a point of law.

161 Ground E(e) - This ground of appeal is not made out. The Tribunal gave extensive consideration to the appellant's medical philosophy, together with the documents provided by the appellant in support of it. There was no requirement, however, that the Tribunal refer to every piece of evidence considered by it when giving its reasons.

162 Ground E(g) - Exhibit 8 was the witness statement of Mr Sullivan. No patient from the Katherine Hospital was among the patients whose treatment formed the basis of the complaints. The evidence of Mr Sullivan was irrelevant to the matters which the Tribunal had to consider. This ground raises a factual issue and not a point of law.

163 Ground E(h) - Exhibit 12 was information about macular degeneration, which the appellant had sourced from Wikipedia. On the issue of macular degeneration, Dr Beaumont held an opposing view to that of the appellant. Dr Beaumont said:

"I'd find it totally unacceptable to think that spinal manipulation would have anything to do with macular degeneration and yet you do." (T.503.24)

This ground relates to the fact finding task which the Tribunal had to perform and does not raise a point of law.

164 Ground E(i) - Exhibit 11 was a real estate pamphlet about an auction of a medical centre that the appellant had previously used for spinal manipulation. It had no relevance to any matter before the Tribunal. The Tribunal was entitled to ignore it. This ground does not raise a point of law.

165 Ground E(j) - Exhibits 2, 3 and 4 were three books published by the appellant, which were tendered in their entirety. It is clear that the Tribunal gave consideration to the contents of those exhibits and quoted from them in its reasons ([16], [22] - [27], [36], [37], [45], [48], [395]). Dr Beaumont had reviewed the three books but his opinion was not supportive of their content. It was his opinion that a number of the theories and ideas postulated by the appellant were very unlikely, that his philosophy was not evidence based and that spinal manipulation was an inappropriate therapy in most of the situations where the appellant used it.

166 This ground raises a factual issue, i.e. the weight of evidence, and does not raise a point of law.

167 None of the grounds of appeal in this section of the appeal relating to exhibits raise any point of law and accordingly, have not been made out.

168 The final section of the appeal is headed "Matters Pertinent to the Second Complaint". It raises three grounds as follows:

Ground C2(a) - The Tribunal failed to acknowledge that the practice of medicine moves on towards more competent healing methods.

Ground C2(b) - The Tribunal failed to have due regard to the "admitted ignorance" of the Commission's expert witnesses of the new and superseding medical philosophy advocated by the appellant.

Ground C2(c) - The Tribunal failed to acknowledge that the appellant's interaction with the patients in the "Second Complaint" was appropriate by reference to his advanced philosophy which superseded existing outdated medical precepts.

169 Ground C2(a) - This ground does not raise a point of law. Its relevance to the issues to be decided by the Tribunal was problematic.

170 Ground C2(b) - This ground fails to acknowledge that the Tribunal relied on the evidence of all of the experts, including those called by the appellant, in reaching its conclusions. This ground does not raise a point of law.

171 Ground C2(c) - As with the previous ground, this ground ignores the fact that the Tribunal relied upon the evidence of all of the experts in reaching its conclusions. This ground does not raise a point of law.

Informed consent

172 Although not raised in the Notice of Appeal, the appellant challenges the findings of the Tribunal in relation to informed consent in his written submissions. The appellant asserts that the Tribunal only relied on the evidence of the Commission's experts in making its findings about informed consent.

173 This submission is not made out. The Tribunal's general findings with respect to informed consent are at [110] - [123]. The submission does not acknowledge that Dr Beaumont's evidence was that the appellant's rigid and firmly held views created a real possibility that patients will not give informed consent for his therapy. Apart from not being factually based, the appellant's submissions as to informed consent do not raise a point of law.

Conclusion

174 None of the appellant's Grounds of Appeal have been made out. Accordingly, the orders I would make are:

(1) The following Notices of Motion are dismissed:

Appeal motion filed 19 December 2011.

New information motion filed January 2012.

Second new evidence motion filed 3 April 2012 (so far as not previously dismissed).

(2) Appeal dismissed.

(3) The appellant is to pay the respondent's costs of all motions argued on 18 July 2012 and of the appeal.

175 SACKVILLE AJA: I agree with Hoeben JA.

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Decision last updated: 15 August 2012