Caladine v The Commissioner, New South Wales Health Care Complaints Commission

[2007] NSWCA 362

New South Wales

Court of Appeal

CITATION:	Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362
HEARING DATE(S):	2 November 2007
JUDGMENT DATE:	14 December 2007
JUDGMENT OF:	Beazley JA at 1; Giles JA at 81; Hislop J at 84
DECISION:	The appeal is dismissed with costs.
CATCHWORDS:	APPEAL – decision of Medical Tribunal – appeal against exercise of discretion – principles regarding error in exercising discretion – House v The King [1936] HCA 40 - (1936) 55 CLR 499 – court will not intervene unless a miscarriage of justice also demonstrated – whether error has been demonstrated - COSTS – award of costs – Medical Practice Act 1992 – Medical Tribunal can award costs to such person as it determines – no general costs rule – purpose of award of costs – costs are to indemnify person in whose favour order is made – costs not to punish person against whom order is made – successful party reimbursed for costs absent conduct which make proceedings unjust or unreasonable – whether Medical Tribunal erred in awarding costs to successful party - PROFESSIONS – medicine – complaints against medical practitioner – Medical Board exercised powers under s 54 of Medical Practice Act 1992 to investigate practitioner – Medical Board subsequently convened inquiry under s 66 of Medical Practice Act – s 66 inquiry where Medical Board satisfied action necessary for the purpose of protecting health of members of the public – Medical Board determined practitioner suffering from impairment and also engaged in inappropriate conduct – Medical Board referred matter to Medical Tribunal pursuant to s 66B of the Medical Practice Act – whether matter should have been referred under s 66B or to an Impaired Registrants Panel under s 66C of the Medical Practice Act - UNREPRESENTED LITIGANT – obligations of court or tribunal to unrepresented litigant – unrepresented litigant should understand proceedings and receive a fair trial – whether Medical Tribunal erred in conducting proceedings
LEGISLATION CITED:	Medical Practice Act 1992 ss 54, 61, 64, 66, 66B, 66C, 67, 90, 95, Pt 4 Div 4, Sch 2 cl 13, Privacy and Personal Information Protection Act 1998
CASES CITED:	Director-General, Department of Community Services v Druett [2003] NSWCA 351 Druett v Director-General of Community Services [2001] NSWCA 126 Druett v Director-General of Community Services S103/2001 (25 September 2001) House v The King [1936] HCA 40; (1936) 55 CLR 499 King v The Queen [2003] HCA 42; (2003) 215 CLR 150 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 McMurtrie v Commonwealth of Australia [2006] NSWCA 148 Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943; (2006) 91 ALD 362 Ohn v Walton (1995) 36 NSWLR 77 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 July 1986, unreported) Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300 Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31
PARTIES:	Dr Keith Caladine (Appellant) The Commissioner, New South Wales Health Care Complaints Commission (Respondent)
FILE NUMBER(S):	CA 40369/06
COUNSEL:	In person (Appellant) G Furness (Respondent)
SOLICITORS:	In person (Appellant) Health Care Complaints Commission (Respondent)
LOWER COURT JURISDICTION:	New South Wales Medical Tribunal
LOWER COURT FILE NUMBER(S):	40015/04
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ, Dr D Child, Dr J Kendrick, Ms G Ettinger
LOWER COURT DATE OF DECISION:	5 June 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	In Re Dr Caladine [2006] NSWMT 12

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CA 40369/06

BEAZLEY JA
GILES JA
HISLOP J

14 December 2007

Dr Keith Caladine

v

The Commissioner, New South Wales Health Care Complaints Commission

Judgment

1 BEAZLEY JA: This is an appeal pursuant to s 90 of the Medical Practice Act 1992 (the Medical Practice Act) from an order made by the Medical Tribunal of New South Wales (the Tribunal) that the appellant, Dr Caladine, pay the respondent’s cost of the hearing before it. The appeal is in respect of a point of law.

2 The costs order was made following the Tribunal’s determination of two complaints concerning the professional conduct of Dr Caladine brought by the respondent, the New South Wales Health Care Complaints Commission (the Commission), dated 4 August 2004. The complaints against Dr Caladine were:

“1. That [he] suffered from an impairment; and

2. That [he] had been guilty of professional misconduct or unsatisfactory professional conduct within the meaning of ss 36 and 27 of the [ Medical Practice Act ] in that he demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of medicine, or had engaged in unethical or improper conduct relating to the practise of medicine.”

3 Counsel for the Commission, Ms Furness, had informed the Tribunal at the commencement of the hearing that the complaints were brought in the alternative. The Tribunal found that complaint 1 had been made out. Conditions were imposed by the Tribunal on Dr Caladine’s practise as a medical practitioner. The Tribunal’s finding on complaint 1 was made after a hearing of some days. Dr Caladine had by that stage conceded the complaint. He agreed to the terms of the conditions that were imposed.

4 “Impairment” is defined in the Medical Practice Act as follows:

“A person is considered to suffer from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect the person’s physical or mental capacity to practise medicine. Habitual drunkenness or addiction to a deleterious drug is considered to be a physical or mental disorder.”

5 The matter came before the Tribunal pursuant to s 66B of the Medical Practice Act. I will refer to the manner in which the matter came before the Tribunal later in these reasons.

6 In the particulars of complaint 1, it was alleged that Dr Caladine suffered from a bipolar disorder, anxiety, depression and/or drug-induced hypomania, which detrimentally affected, or was likely to detrimentally affect, his physical or mental capacity to practise medicine. It was further alleged that between 1998 and April 2003, he suffered psychiatric episodes, including a drug-induced hypomanic episode, as a result of his self-administration of an anti-depressant drug, Aropax. The complaint then particularised the making of inappropriate comments, including inappropriate sexual remarks to four patients; that he had failed to keep adequate medical records in relation to a further nine patients; and that he had inappropriately prescribed Schedule 8 narcotics and benzodiazepines to six of those patients.

7 The patient particulars to complaint 2 were a repeat of the patient particulars to complaint 1.

8 The hearing of the complaints commenced before the Tribunal on 27 February 2006 and continued on successive days thereafter, until 1 March 2006. At the commencement of the hearing, counsel for the Commission stated to the Tribunal, as I have already indicated, that the complaints were brought in the alternative. Counsel also informed the Tribunal that the Commission’s position, should the Tribunal find either complaint made out, was that the conditions to which Dr Caladine’s registration to practise medicine were then subject should remain. Those conditions had been imposed by the New South Wales Medical Board (the Medical Board) in August 2003, following an inquiry under s 66 of the Medical Practice Act.

9 Counsel for the Commission also sought leave to amend the particulars, so as to exclude a number of patients as complainants and to change a reference in one particular in each complaint, so as to refer to certain narcotics in the alternative, as well as cumulatively. The amendments were not objected to by Dr Caladine and were allowed.

10 Dr Caladine, at the commencement of the proceedings, informed the Tribunal that he had objections to a number of the documents that the Commission proposed to tender in evidence and also stated that he wanted “complaint 1 struck out”. Dr Caladine reiterated this position, when he informed the Tribunal that he “unequivocally [denied] this complaint”. Notwithstanding the denial of the complaint, Dr Caladine admitted a number of the particulars of the complaint, although he unequivocally denied the complaint that related to a patient, Ms G.

11 It was necessary, for the purposes of establishing the complaint of impairment before the Tribunal, that the Commission prove that Dr Caladine was currently impaired. Counsel for the Commission informed this Court that at the stage when proceedings commenced in the Tribunal, there was still a question as to whether the evidence was sufficient to support a finding of current impairment, or of professional misconduct or unsatisfactory professional conduct. If he was not currently impaired, the Commission’s case was that Dr Caladine had engaged in unsatisfactory professional conduct and/or professional misconduct having regard to his conduct towards the patients specified in the particulars. There was no dispute, for the most part, that the conduct had occurred, although there was a dispute about some of the details alleged. The question was whether there was evidence to establish that either the first or second complaint had been made out.

12 In relation to the complaint of impairment, three psychiatrists were called: Dr Caladine’s treating psychiatrist, Dr Brash; a Board-appointed psychiatrist, Dr Westmore; and Dr Iyer, a psychiatrist who had been involved in the s 66 inquiry. This Court was informed by counsel for the Commission that each psychiatrist had been called because Dr Caladine had required each to be available for cross-examination.

13 At the Tribunal hearing, a question arose as to which witnesses Dr Caladine required for cross-examination. One of the doctors whom the Commission had summonsed to attend to give evidence was Dr Westmore. Counsel for the Commission suggested that, having regard to the contents of his report, there was nothing that could be further amplified by way of cross-examination. Counsel enquired of the Tribunal whether, in that circumstance, there was any need for Dr Westmore to give oral evidence. Dr Caladine insisted that Dr Westmore be available for cross-examination, in view of the fact that the Commission had seen fit to summons him to attend.

14 Another problem arose in relation to the attendance of Dr Chung, a General Practitioner who had provided a peer review report in respect of Dr Caladine’s practice. Counsel for the Commission informed the Tribunal that Dr Caladine had not given notice that Dr Chung was required for cross-examination. Following some discussion about Dr Chung’s attendance, Dr Caladine informed the Tribunal that he insisted that Dr Chung be available to give evidence.

15 During the course of the hearing, Dr Caladine cross-examined Dr Iyer, Ms G, to whom I have earlier referred, Dr Westmore and Dr Chung. The evidence of Dr Chung was a matter of controversy before the Tribunal, and it was apparent from the case presented by Dr Caladine on the appeal that that matter remains a matter of concern and upset for him.

16 Dr Westmore had been appointed by the Medical Board to consult with Dr Caladine in respect of his appearances before the Medical Board’s various inquiries. Dr Westmore first saw Dr Caladine on 19 June 2003 and then on four subsequent occasions. Dr Westmore gave evidence that he considered that it was likely Dr Caladine was suffering from bi-polar type 2 disorder and that that condition was likely to detrimentally affect his capacity to practise medicine without restriction. Dr Westmore gave evidence that if Dr Caladine was to commence practise again, the conditions to which he was then subject as a result of the Medical Board’s determination, were appropriate. Under cross-examination by Dr Caladine, Dr Westmore stated that Dr Caladine probably fell within the definition of impairment, but that he was fit to practise medicine and could return to work under supervision. Dr Westmore also said that he judged Dr Caladine’s current level of insight into his previous illness as quite high, and that he had consistently recommended that Dr Caladine receive support and supervision from the Medical Board.

17 In the afternoon of 1 March 2006, Dr Caladine commenced giving evidence. He immediately admitted the particulars to each of the complaints, save for one particular in respect of each complaint, which he continued to deny, and also disputed some of the dates alleged in the particulars. Dr Caladine also commenced, in effect, to address the Tribunal on what he claimed were mitigating circumstances surrounding his conduct, namely, that he was hypomanic at the time of the complaints. At that point, which was close to the end of the day’s hearing, the Deputy Chairperson of the Tribunal stated that the psychiatric evidence before the Tribunal was virtually unanimous that Dr Caladine suffered from a disorder which was of such a nature that he would be subject to its occasional recurrence and that accordingly, he would qualify as being impaired within the definition of ‘impairment’ in the Medical Practice Act. The Deputy Chairperson reminded Dr Caladine that the Commission was not seeking his deregistration, but was seeking to have conditions imposed upon his right to practise. The Deputy Chairperson raised, therefore, the question whether there was room for agreement between Dr Caladine and the Commission as to those conditions, to avoid the need for another two days’ hearing. After some further discussion, Dr Caladine indicated that the “stumbling block” had been the complaint relating to Ms G. He then asked whether the Tribunal would permit him to change his plea. The Deputy Chairperson pointed out that it was not a matter of there being a “plea” in the Tribunal, but again encouraged Dr Caladine to speak to counsel for the Commission.

18 The matter was then adjourned and came back before the Tribunal on 11 April 2006. By that time, draft conditions had been presented to the Tribunal. There was some discussion about the conditions and Dr Caladine said he did not agree with all of them. The Deputy Chairperson indicated that if there was to be a contest about the terms of the conditions, the matter would have to be refixed for further hearing. At that point, Dr Caladine stated that he had decided to agree with the conditions.

19 The question of costs then arose. The Commission sought an order for costs in its favour. This was opposed by Dr Caladine. In its determination of 5 June 2006, the Tribunal ordered that Dr Caladine pay the Commission’s costs of the proceedings. The Tribunal summarised Dr Caladine’s arguments as to why no order for costs should be made against him in the following terms:

“1. He had admitted most of the particulars of the complaints from the commencement of the hearing.

2. He was subject to the double disadvantage that he was unrepresented and impaired.

3. In the absence of legal representation he had not fully comprehended the legal import of the term impairment and for that reason had argued against such a finding.

4. The investigation of complaints against him had commenced as early as 1999 and there had been oppression and delay on the part of [the Commission] in bringing the complaints before the Tribunal.

5. The NSW Medical Board had acted capriciously in referring the complaints to the Tribunal because he had been impaired and his conduct whilst impaired had not been at the most serious end of the scale.

6. A summons served on [the Commission] had not been complied with.

7. He was without significant means or assets because he had not practised for more than three years pending the outcome of the Tribunal proceedings and he was a single parent, supporting his 16 year old daughter.”

20 The Tribunal also recorded the Commission’s arguments as follows:

“1. [Dr Caladine] had been legally represented until November 2005 and documents to that date had been served on [Dr Caladine’s] lawyers. The absence of legal representation was irrelevant to the issue of costs.

2. The purpose of a costs order was compensatory, not punitive. Reference was made to authority which established as a general rule that it was reasonable for a successful party to expect that the unsuccessful party would be required to meet its costs. There was also authority which extended this general rule to proceedings of the Tribunal.

3. The Tribunal had been informed in the course of the opening of [the Commission’s] case that it would accept the outcome now sought by the parties. It had been a conscious choice of [Dr Caladine] to argue before the Tribunal the issue of impairment and to call witnesses on this issue. This had extended the time required for hearing.

4. It was appropriate and proper that the matter be brought before the Tribunal, particularly in view of the provisions of ss 52 and 66B of the Act.

5. There had been no delay on the part of [the Commission]. The matter was referred to the Commission in early 2003 and the Tribunal proceedings adjourned three times at the request of [Dr Caladine].

6. The summons had been framed in terms that were too wide, no conduct money had been tendered and, in any event, there were no documents to produce.”

21 The Tribunal determined that there was no reason to depart from the “general rule” that an order for costs should be made in favour of the successful party. It considered that there was nothing in the Commission’s conduct to disentitle it to an order for costs and that the matters alleged against Dr Caladine were of a significantly serious nature. The Tribunal further observed that, whilst Dr Caladine had made some admissions at the commencement of the hearing concerning his conduct, he had made no admissions to the Medical Board inquiry. Further, he had continued to maintain that he was not impaired, notwithstanding the significant body of medical evidence to the contrary. Because he had maintained his denial that he was impaired, witnesses had been called for cross-examination in circumstances where the Tribunal found their oral evidence could add little to the information already before the Tribunal.

22 In this Court, Dr Caladine advanced similar arguments as he had to the Tribunal. He also alleged a number of additional grounds of appeal, to the effect that the Tribunal had erred in law in its determination in respect of costs. These included a “Wednesbury unreasonableness” ground and a failure to give reasons. Rather than attempt to summarise the matters raised by Dr Caladine, it is more convenient to set out the grounds of appeal raised by Dr Caladine. (I have inserted paragraph numbers for ease of reference.)

“1. Not taking into consideration the total failure of the respondent to make its case; complete exculpation by the appellant any penalty. Never previously have practitioners who were not penalised in the Tribunal ordered to pay the other party’s costs. This is perverse.

2. ‘Wednesbury unreasonableness’ of the costs judgment (100% costs awarded to unsuccessful respondent). Respondent’s complaint 1 was substantively conceded by the appellant prior to hearing and therefore the prosecution in the Tribunal was otiose and utterly vexatious, as the judgment evinces; respondent’s complaint 2 failed totally).

3. Failure to provide reasoning in the written judgment; capricious, arbitrary, harsh and unjust costs decision; denial natural justice.

4. Failure to take into account the appellant’s lines of authority (HCA and NSWCA), on which the appellant relied.

5. Denial of procedural fairness to the appellant by allowing the respondent to amend the particulars of its complaints (submissions) during the exordium of the substantive hearing, without prior oral or written notice to the appellant.

6. Failure to follow the principle that ‘costs follow the event’. (That the respondent was not successful is evinced by the irrebuttable fact that no penalty or censure of any colour, was imposed by the learned judge, on the appellant.)

7. Misrepresentation to the appellant by her Honour prior to the substantive hearing, in relation to the admissibility of evidence included in the respondent’s submission bundle, proven by the NSW Administrative Decisions Tribunal to have been collected by the respondent in breach of the Privacy and Personal Information Protection Act 1998 (NSW).

8. The unjust and oppressive admission into evidence of proven unlawfully obtained evidence, contrary to the written undertaking given to the appellant by her Honour ex ante the hearing.

9. Denial of procedural fairness on the face of the record, by total failure to explain process in the substantive hearing (which was therefore rendered Kafkaesque for the Appellant).

10. Miscarriage of justice due [to] abuse of the exercise of her Honour’s lawful discretion.

11. Failure to allow the appellant the right to be heard during the hearing; allowing the respondent’s advocate to usurp process on each and every occasion, and then allow the respondent to direct process during the substantive hearing; thereby not permitting the appellant to plead to the complaints until the final day of the substantive hearing (day 4).

12. Not taking into account the quantum of costs ‘thrown away’ by the appellant in rebuttal of the respondent’s complaint 2, which remained on the table prior to the first day of the hearing.

13. Not taking into account the fact that there was no legitimate forensic evidence supporting the proposition that the respondent’s complaint 2 was argued in the alternative (to complaint 1) prior to the substantive hearing (in the interregnum between service of process to the appellant, and the trial proper).

14. Not taking into consideration the significant costs sequelae of the negligent misleading of the appellant by the respondent in relation to complaint 2 (considerable time and expense to prepare rebuttal case).

15. Accepting the forensically illegitimate and erroneous submission by the respondent that complaint 2 was argued in the alternative , prior to the substantive hearing.

16. Failure to take into consideration the total failure of the respondent to settle with the appellant neither prior to the substantive hearing, (during seven years of interlocutories 1998-2006), nor during the hearing.

17. Failure to take into account the additional highly significant costs of the respondent’s dilatoriness of process; matters in issue occurred 1998-2002; the respondent did not serve the appellant until November 2005 (seven year investigation).

18. Ab initio sham prosecution of the appellant with proven ‘water-tight’ psychiatric defence (Prof. Phillips, Dr Westmore and Dr Brash) in the NSW Medical Tribunal, rather than the ‘in-house’ professional standards committee hearing (wrong forum/incompetent jurisdiction). Forum non conveniens .

23 Before proceeding to deal with the individual grounds of appeal, it is appropriate to consider the principles that govern the award of costs.

24 The power of the Tribunal to award costs is provided for in Sch 2 cl 13 of the Medical Practice Act. That clause provides, relevantly:

“13 Tribunal can award costs

(1) The Tribunal may order the complainant, if any, the registered medical practitioner concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at any inquiry or appeal before the Tribunal to pay such costs to such person as the Tribunal may determine.”

25 There are no special rules that govern the exercise of the Tribunal’s discretion to award costs, for example, that costs follow the event unless the court makes some different order, such as is found in the Uniform Civil Procedure Rules, r 42.1. This Court in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300 held that where no particular rule applies to govern the exercise of the discretion, it is necessary to have regard to the particular legislative regime that is applicable to determine what factors are relevant to the exercise of the discretion.

26 In Ohn v Walton (1995) 36 NSWLR 77 the Court of Appeal was concerned with the power to award costs under reg 27(1) of the Medical Practitioners Regulations 1981 (since repealed), which was, relevantly, in the same terms as cl 13. Gleeson CJ (as his Honour then was) observed, at 78, that although the Regulations did not provide guidance as to the manner in which the discretion was to be exercised, the principles that guided the exercise of the discretion needed to be identified, so that, as far as possible, like cases would be decided in a like manner: see Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 558 per Dawson J. Gleeson CJ, after noting that Latoudis v Casey related to the power to award costs in a summary prosecution and therefore did not directly apply to the power to award costs conferred by the Medical Practitioners Regulations, nonetheless considered that the High Court’s identification of the underlying rationale for an award of costs in that case was relevant. As his Honour stated at 79:

“The point of Latoudis v Casey is that the purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made.”

27 His Honour stated that when the legislation conferred a power to award costs, it was, in the absence of any contrary indication, to be exercised for that purpose. His Honour considered, from this, that two things followed:

“1. The usual rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for costs incurred, in the absence of grounds connected with the charge or the conduct of the proceedings which make it unjust or unreasonable that there should be such reimbursement.

2. The test of whether an order for costs should be made against an unsuccessful plaintiff or complainant is not whether he or she has done anything to warrant punishment. It is whether, in the circumstances, the defendant or respondent should be compensated.”

28 In Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, Gaudron and Gummow JJ said at 82 [22] in respect of s 69 of the Land and Environment Court Act 1979:

“The terms of s 69(2) contain no positive indication of the considerations upon which the Court is to determine by whom and to what extent costs are to be paid. The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as ‘the subject matter and the scope and purpose’ of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be ‘definitely extraneous to any objects the legislature could have had in view’”. (Citation omitted)

29 In Thaina Town Spigelman CJ, having referred to the decision of Mason CJ in Latoudis v Casey as to the development of principles or guidelines to guide the exercise of the discretion, stated at [35]:

“However, such principles or guidelines are not to be treated as rules and must be applied as indicative only, so that full weight is given to the circumstances of a particular case.”

30 This matter came before the Tribunal pursuant to complaints made by the Commission under the Medical Practice Act. Essentially, the Tribunal acts in a disciplinary capacity. This is apparent from the provisions of Pt 4 Div 4. Its ultimate aim in the exercise of those disciplinary powers is the protection of the public. In that sense, the proceedings before the Tribunal are not typical adversarial proceedings between a plaintiff or defendant, applicant or respondent. Nonetheless, they maintain the overall structure of an adversarial proceeding, in the sense that the formalities of complaint, particulars and evidence are, in essential respects, maintained. The Commission retains the primary responsibility for adducing evidence to establish the complaint.

31 Costs are, of course, compensatory and not punitive. As McHugh J observed in Oshlack v Richmond River Council at 97 [67], costs are not awarded to punish an unsuccessful party in litigation. McHugh J went on to observe that a successful party to litigation might be deprived of costs if that party was responsible for a form of misconduct relating to the litigation. That remark was made in the context of the general provisions of s 69 of the Land and Environment Court Act. It is apparent, however, from his Honour’s remarks, that he accepted that a court, under s 69, would make an order for costs in favour of the successful party.

32 His Honour included as examples of misconduct that might deprive a party of costs that would otherwise have been ordered in its favour; conduct which had effectively invited the litigation; conduct that had unnecessarily protracted the proceedings; the case where a party had succeeded on a point not argued in the lower court; the prosecution of a matter solely for the purposes of increasing costs; or, where the relief which was ultimately obtained had already been offered in settlement of the dispute.

33 As will be apparent in the discussion of the particular grounds of appeal raised by Dr Caladine, it is alleged that the Commission engaged in “misconduct” of the kind identified by McHugh J, such that it ought to have been deprived of its costs. I will deal with the particular allegations in this regard at the time of dealing with the relevant ground of appeal.

Grounds 1, 2 and 6: failure by the Commission to make out its case and related issues

34 I have already reviewed the stance that Dr Caladine took from time to time during the course of the proceedings. As that review indicates, Dr Caladine did not admit the complaints at the commencement of the hearing as he asserted both before the Tribunal and before this Court. It was not until the end of the evidence that he admitted that the ground of impairment had been made out. At that point, the Tribunal had indicated to Dr Caladine that it had formed a preliminary view that complaint 1, that of impairment, had been made out. It also reminded him that the Commission was not agitating for him to be struck off, nor was it seeking his suspension. The Tribunal suggested to him, therefore, that there may be benefit in the parties entering into discussions as to the terms or conditions that ought to be imposed.

35 Further, it is not correct to say that the Commission totally failed to make out its case, or that there was a complete exculpation of Dr Caladine and that no penalty was imposed. The Tribunal has specified powers pursuant to s 61 of the Medical Practice Act, which include imposing such conditions on the person’s practise as is considered appropriate. Such conditions were imposed in this case, notwithstanding that eventually, Dr Caladine agreed to them. He only did so after three days of hearing. But in any event, an agreement as to the conditions that are to be imposed after a contested hearing does not mean that no ‘penalty’ has been imposed.

36 It follows from what I have said above that Grounds 1, 2 and 6 are not made out.

Ground 3: failure to provide reasons; order harsh and unjust; denial of natural justice

37 The reasons of the Tribunal on the question of costs were adequate. It is apparent from those reasons that the Tribunal considered that costs should follow the event, and that there had been no conduct on the part of the Commission that disentitled it to an order for costs. Reasons do not have to be lengthy. What must be apparent to the parties is why the decision was made in a particular way. Further, as both the transcript of the proceedings before the Tribunal and those reasons reveal, the decision was not capricious or arbitrary, nor did it involve a denial of natural justice. Dr Caladine had full opportunity to argue why an order for costs should not be made against him. Nor is such an order harsh or unjust. A costs order may, and frequently will, have an adverse financial effect on the person against whom the order is made. However, that does not make the order harsh and unjust in the sense in which that term is to be understood in a statutory regime that permits costs to be ordered. I would reject this ground of appeal.

Ground 4: failure to take into account the legal authorities upon which Dr Caladine relied

38 Dr Caladine submitted that he had referred the Tribunal to a series of authorities in which it had been held that a litigant in person should not be ordered to pay costs, but that the Tribunal had paid no regard to them. The decisions were Druett v Director-General of Community Services [2001] NSWCA 126; Director-General, Department of Community Services v Druett [2003] NSWCA 351; and comments made by Gaudron J in dealing with an application brought by Mr Druett for expedition of his appeal from the first of the above-mentioned decisions: see Druett v Director-General of Community Services S103/2001 (25 September 2001).

39 In Druett v Director-General of Community Services [2001] NSWCA 126, the Court was dealing with a motion filed by Mr Druett, seeking an order to review the decision of a Registrar dismissing an appeal that had been brought by Mr Druett from a judgment of the District Court. The Court dismissed the application on the basis that no appeal lay to the Court of Appeal from a statutory appeal to the District Court: see judgment at [12]. I will refer to that as the substantive issue in the case. Counsel for the Director-General made an application for costs. Upon that application being made, there was an exchange between the presiding judge, Giles JA, and counsel, to the following effect:

“GILES JA: You’re not going to do that are you?

[Counsel]: Well I wish to just make a formal application, your Honour. I don’t wish to say anything else.

…

GILES JA: I think you should get some instructions not even to make a formal application, Mr Moore. Would you see if you can get them?

[Counsel]: I withdraw that application.”

40 Mr Druett sought special leave to appeal from the Court of Appeal’s decision on the substantive issue in the case and made an application for expedition of that special leave application. Mr Druett once again appeared in person. Gaudron J expressed concern about Mr Druett’s lack of representation and pointed out to him that it was likely the matter would be determined in the Children’s Court and not in the High Court. Nonetheless, her Honour expedited the matter and made no order as to costs.

41 Director-General, Department of Community Services v Druett, was an application for leave to appeal from the refusal of the Appeal Panel of the Administrative Decisions Tribunal to make a costs order in favour of the Director-General. Mr Druett sought leave to cross-appeal from the substantive decision of the Tribunal, and also from other decisions of the Appeal Panel. In the case of the summons for leave to appeal filed by the Director-General, the Court was not satisfied that error had been demonstrated in the Appeal Panel’s determination. The Court considered that there was no reasonable basis to allow Mr Druett to cross-appeal. The Court considered that the appropriate order was that both summons be dismissed and the Court ordered that each party bear its own costs. The Court considered that this was the appropriate order, rather than making an order for costs in favour of the opponent on each summons, because Mr Druett’s application was seen as a response to the Director-General’s application for leave to appeal.

42 These decisions and comments made during the course of proceedings were based upon the facts of the particular application before the Court, or represented a response by the Court or by the relevant Government authority to a costs question raised in the course of proceedings. There is no statement of principle to be derived from these decisions that an unrepresented litigant should not be ordered to pay costs. Accordingly, although the Tribunal did not refer to these decisions, there was no reason in law to do so. I would reject this ground of appeal.

Ground 5: denial of procedural fairness by allowing the Commission to amend the particulars of its complaints

43 The Commission sought and was granted leave to amend the particulars of both complaints. In respect of each complaint, there was an amendment to the particulars, so as to remove the specified patients from the particulars. In respect of one particular, which referred to the administration of drugs, the particular as originally framed specified the administration of “narcotics and benzodiazepine”. That was amended so as to read, “narcotics and/or benzodiazepine”. The effect of the amendments was to reduce the scope of the particulars of complaint.

44 Sometimes, in circumstances where points are particularised but not pursued, a court will order that a party in whose favour a costs order has otherwise been made, not to have the costs attributable to those matters. However, it is not bound to make such an order. Much will depend on the circumstances of the particular case.

45 This was not a ground that was argued before the Tribunal. Accordingly, there is no basis upon which this Court is in a position to determine whether there was an error of law in the exercise of the Tribunal’s discretion. Accordingly, this ground should be rejected.

Grounds 7 and 8: admissibility of evidence

46 The background to these grounds of appeal is a series of proceedings between Dr Caladine and certain government health agencies, including the New South Wales Medical Board. Those proceedings all resulted in determinations in the Administrative Decisions Tribunal in favour of Dr Caladine: see [2005] NSWADT 247; [2006] NSWADT 345; [2006] NSWADT 353; [2007] NSWADT 219; and [2007] NSWADT 256. In brief summary, the proceedings arose out of the Medical Board having forwarded its report of 21 January 2003 to the Pharmaceuticals Services Branch of the New South Wales Department of Health and out of the conduct of the Department of Health in having forwarded information to the Medical Board.

47 In the Tribunal, the Commission sought to tender a medical report of Dr Chung. As I have said, Dr Chung is a general practitioner who had been requested by the Commission to provide a peer review in relation to complaints against Dr Caladine. Dr Chung provided a report to the Commission dated 3 November 2003. In that report, he specified the documents that he had considered in relation to the complaints. Included in the material provided to Dr Chung was the Medical Board’s report of 21 January 2003, in which the Medical Board stated that Dr Caladine was suffering from a mental condition, which it identified.

48 The Medical Board report had earlier been disclosed to the Pharmaceuticals Services Branch of the Department of Health in breach of the Privacy and Personal Information Protection Act 1998 (the Privacy and Personal Information Protection Act), as had been found by the Administrative Decisions Tribunal.

49 When the matter came before the Tribunal, Dr Caladine objected to the admission of material in the Commission’s bundle of documents provided to the Tribunal, which included Dr Chung’s report, on the grounds that Dr Chung had acted ultra vires. There was a discussion before the Tribunal as to what was contained in Dr Chung’s report and it became apparent that the original documents filed with the Tribunal and served on Dr Caladine included references to complaints made by patients who were no longer part of the material to be relied upon in the Tribunal. Ms Furness, counsel for the Commission, indicated to the Tribunal that the document in the Members’ bundles was the document which had had that material deleted.

50 Dr Caladine maintained his objection that Dr Chung’s report was ultra vires and involved a probable breach of the Privacy and Personal Information Protection Act, as Dr Chung had had access to Dr Caladine’s personal psychiatric report. The decisions to which reference was made above formed the foundation of this submission. There was then discussion before the Tribunal as to whether there was any prohibition in the Medical Practice Act on the Commission having forwarded the s 66 report to Dr Chung. The Tribunal ruled upon the objection by deleting certain parts of Dr Chung’s report.

51 Dr Caladine continued to object on the basis that it was likely that the Tribunal members had already read the passage which had been deleted. There was an exchange between the Deputy Chairperson and Dr Caladine relating to that matter, with the Deputy Chairperson indicating that Dr Caladine could ask each member whether they had read the document. Dr Caladine contends that, notwithstanding the manner in which the transcript appears to read, he was in effect stopped from questioning the Tribunal members as to whether they had read the material. The relevant exchange is as follows:

“[Dr Caladine]: I take it the members have already read that passage?

Deputy Chairperson: They may have yes. It has been deleted and it will be--

[Dr Caladine]: But you think the members have read the passage--

Deputy Chairperson: I don’t know if they have, I just said they may have. You can ask each one of them if you wish--

[Dr Caladine]: I have your permission to do that--

Deputy Chairperson: They may well have read it while we were arguing about it. But I don’t know if they have.

[Dr Caladine]: It is only for the sake of an appeal your Honour.

Deputy Chairperson: Yes, all right.

[Dr Caladine]: There is another passage.”

52 The Deputy Chairperson then moved on to deal with a further objection to another aspect of Dr Chung’s report.

53 I have considered the material relating to this ground in some detail, as it was clearly a matter of concern to Dr Caladine. However, it was not a matter which was relied upon by Dr Caladine in his argument on costs before the Tribunal. Nor is it a relevant consideration. If it had any appellate relevance, it could only have been in relation to an attack on the Tribunal’s substantive decision. There is no such challenge to that decision and I should point out that I am not indicating that it would have represented an available challenge. The question of the admissibility of evidence is a matter which confronts courts and tribunals on a daily basis. Material is frequently considered to determine whether it is admissible. If it is not admissible, it is rejected, even though the court or tribunal has seen it. It follows that there was no misconduct in the placement of the material before the Tribunal in a way which would have attracted the principles stated by the High Court in Oshlack v Richmond River Council, nor could it be argued that this exchange relating to the admissibility of the evidence relevantly extended the proceedings in such a way that the Commission ought not to be entitled to its costs, or all of its costs. I would reject these grounds.

Ground 9: denial of procedural fairness by the total failure to explain the process in the substantive hearing

54 The obligations of a court or tribunal to ensure that an unrepresented party understands the procedural aspects of the matter was discussed by the High Court in MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512. In that case, the High Court stated that giving full weight to the adversary character of a criminal proceeding, the trial judge’s primary obligation remained to ensure that the accused had a fair trial: per Mason J at 534. See also King v The Queen [2003] HCA 42; (2003) 215 CLR 150 at 179-180 [95] per Kirby J.

55 In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 July 1986, unreported), Samuels JA stated that:

“In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.”

56 This passage was adopted by the Full Court of the Federal Court in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at 446 [28]. The Court noted, however, at 445 [27], that the duty of a trial judge might be more extensive in criminal proceedings, as compared to civil proceedings: see also Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943; (2006) 91 ALD 362.

57 It is not readily apparent that this matter was raised by Dr Caladine in the costs argument in the Tribunal. However, it may have been raised under the second argument as summarised by the Tribunal, namely, that Dr Caladine “was subject to the double disadvantage that he was unrepresented and impaired”. Assuming, therefore, that the ground was raised before the Tribunal, I am of the opinion that the complaint has not been made out on the facts and no error of law has been demonstrated as arising from the manner in which the Tribunal conducted itself. I have read the transcript of the hearing and it appears to me that the Deputy Chairperson of the Tribunal explained, to the extent it was appropriate, what was occurring during the course of the proceedings. In this regard, I am of the opinion that the Deputy Chairperson satisfied the obligation of a presiding judicial officer where a person does not have legal representation. The principles that govern the obligation of a judicial officer in such circumstances was discussed in Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 at [147]-[155]; McMurtrie v Commonwealth of Australia [2006] NSWCA 148 at [46]-[48]; and Minogue v Human Rights and Equal Opportunity Commission at 445-446 [26]-[29].

58 Further, I do not consider that this complaint is one that was relevant to the exercise of the Court’s discretion in determining the costs application. It is an attack on the conduct of the Tribunal, rather than being a factor relevant to whether the Tribunal should have awarded a successful party costs of the proceedings. Accordingly, this ground of appeal should be rejected.

Ground 10: miscarriage of justice due to abuse of the exercise of her Honour’s lawful discretion

59 This ground might be described as a “wrap-up” ground, in the sense that if the Tribunal erred in the exercise of its discretion, then it would be open to this Court to intervene and set aside the costs order. However, in order for there to be appellate intervention, two matters need to be established. First, it would need to be established that there was error in the Tribunal’s exercise of its costs discretion in accordance with the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499. Secondly, even if error was demonstrated, the Court will not intervene unless there is a miscarriage of justice. Error in the relevant sense may be one or more of the following: error of law; error of fact; failing to take into account relevant considerations; taking into account irrelevant considerations; or, a determination that the primary determination was so unreasonable that no reasonable tribunal could have arrived at it. As will be apparent from my reasons relating to the other grounds of appeal, no error of the type specified in House v The King has been demonstrated and it follows that this ground should be rejected.

Ground 11: denying Dr Caladine the right to be heard

60 This ground should also be rejected. It is not apparent that it was a matter argued before the Tribunal. So far as Dr Caladine contended that the Commission’s counsel ‘usurped’ or ‘directed’ process and he was not allowed to be heard, it is plain from a reading of the transcript that he was given all appropriate opportunities to be heard and the proceedings before the Tribunal were not misconducted. As I have indicated in the review of the stance taken by Dr Caladine during the course of the proceedings, he contested impairment, and it is not correct that he was not permitted to “plead to the complaints” until late in the hearing.

Ground 12: not taking into account the quantum of costs thrown away in rebuttal of complaint 2

61 As I understand this argument, it is that as complaint 2 was maintained by the Commission but was not decided in favour of the Commission, the costs referable to it should be offset against any costs which might appropriately be ordered to be paid in respect of complaint 1 (or possibly no costs should be ordered against Dr Caladine). It is sufficient for rejection of this ground that the particulars of complaint 1 included, but went beyond, the particulars of complaint 2, and Dr Caladine took issue with the Commission on complaint 1 as well as complaint 2. As the Commission pointed out, it was not certain at the commencement of proceedings whether the evidence would establish current impairment, and complaint 2 was therefore appropriately maintained; in the end, it could scarcely be disputed that Dr Caladine’s conduct, as particularised and as he acknowledged, was inappropriate. Save possibly to the extent of some different legal issues, it is not apparent that there would have been additional costs incurred in relation to complaint 2, and there is no reason for adjustment of the costs order in this respect. I would reject this ground of appeal.

Grounds 13, 14 and 15: failure to take into account that there was no legitimate forensic evidence supporting complaint 2; failure to take into account the significant costs incurred by Dr Caladine in respect of his preparation of complaint 2; accepting the submission by the Commission that complaint 2 was argued in the alternative

62 Dr Caladine’s complaint appears to be that he was not aware until the hearing that complaint 2 was to be argued in the alternative. That appears to be so. However, as counsel for the Commission explained, it was necessary for the Commission to establish ‘current impairment’ before the Tribunal and that question was disputed. If it did not establish ‘current impairment’, which was not a foregone conclusion as the medical evidence indicated that Dr Caladine’s condition was a fluctuating one, its case was that Dr Caladine’s conduct constituted professional misconduct. There was no impropriety in the Commission’s conduct. Nor should it have been surprising to Dr Caladine that that was a possible approach. If he was impaired, then it is apparent that a finding of professional misconduct was unlikely. If he was not impaired, it is likely that he would have been found guilty of professional misconduct or unsatisfactory professional conduct in respect of the particulars which also supported the impairment complaint. Indeed, it appears from a reading of the transcript that Dr Caladine understood this to be so. The matter at all times remained complicated because, until the fourth day of the hearing, Dr Caladine did not concede that he was impaired. However, as I have indicated, the course adopted by the Commission was appropriate and no error has been shown in the Tribunal’s award of costs based on these grounds. I would reject these grounds of appeal.

Ground 16: failure to take into consideration the failure of the Commission to settle the complaint

63 This ground should be rejected. It was not one of the arguments raised by Dr Caladine on the costs question in the Tribunal. Further, there was no evidence that Dr Caladine had attempted to settle the proceedings and as was apparent from the statements that he made at the commencement of the hearing in the Tribunal, at that stage he opposed the complaints.

Ground 17: the delay issue

64 There was no evidence that the delay in bringing the matter before the Tribunal had any effect on the quantum of the costs. In any event, at least some of the delay was caused by the adjournments which had been granted to Dr Caladine. This ground should be rejected.

The inappropriate forum issue

65 This ground requires a more detailed analysis of the circumstances in which the complaint was brought before the Tribunal.

66 The Commission commenced receiving formal complaints about Dr Caladine in, relevantly, September 2000. In July 2002, the Commission recommended that Dr Caladine be referred to the Impaired Registrants Panel. However, as more recent allegations were made, to the effect that Dr Caladine was practising under the influence of a drug or alcohol, a decision was made that the Medical Board exercise its powers under s 54 of the Medical Practice Act and require Dr Caladine to undergo a medical examination. Dr Samuels, Psychiatrist, who undertook that examination, concluded that Dr Caladine was not impaired, but raised a number of concerns about his practise of medicine.

67 On the basis of the information that the Board then had, it determined to convene an inquiry pursuant to s 66 of the Medical Practice Act. Section 66(1) provides that “The Board must, if at any time it is satisfied that such action is necessary for the purpose of protecting the life or physical or mental health of any person”, either suspend a registered medical practitioner for a period not exceeding eight weeks, or impose conditions on their practise. The period of suspension may be extended: s 67.

68 On 21 January 2003, the Medical Board produced its report in which it stated that it accepted that Dr Caladine has a personality disorder with paranoid features and suffered from an impairment within the meaning of the Medical Practice Act. In relation to the finding of impairment, the report referred to the evidence of Dr Samuels, the Board-nominated psychiatrist, who was cross-examined by Dr Caladine in the course of the inquiry.

69 The Medical Board referred to Dr Samuel’s conclusion in his written report after the s 54 examination, that it was difficult to provide a definitive opinion on whether Dr Caladine was impaired within the meaning of the Medical Practice Act. However, during the course of his evidence before the Medial Board, Dr Samuels expressed the opinion, having regard to the additional evidence with which he was presented during the course of the inquiry, that Dr Caladine was impaired within the meaning of the Medical Practice Act.

70 Subsequently, in August 2003, the conditions on his continued practise as a medical practitioner were imposed. The history between January and August 2003 is not known to this Court, but the Medical Board, in its determination of 21 January 2003, stated that at the expiry of the eight week suspension the delegates would need to consider whether to extend the suspension and Dr Caladine would be given the opportunity to make representations in respect of that matter. The Court was informed that the suspension was extended.

71 The Medical Board also recorded in its determination that it had decided to refer the matter to the Commission pursuant to s 66B of the Medical Practice Act, rather than recommend that the matter be dealt with by way of an Impaired Registrants Panel pursuant to s 66C. The determination also records that Dr Caladine was advised that he had a right of appeal to the Medical Tribunal against its decision under s 95 of the Medical Practice Act.

72 Section 66B requires that the Medical Board, as soon as practicable after taking any action under s 66 and within seven days of taking that action, refer the matter to the Commission for investigation: subs (1). Once the matter has been referred to the Commission, it is dealt with as a complaint and the Commission is required to investigate the complaint and after it has completed its investigation, if it considers it appropriate, refer the complaint to a Tribunal or Committee: subs (2) and (3). Section 66B(4) provides that s 52 applies in respect of any such action by the Commission. Section 52 makes provision for the referral of serious complaints to the Tribunal. A serious complaint is one that may provide grounds for the suspension or deregistration of a registered medical practitioner.

73 Section 66B does not apply if the Board takes action against a registered medical practitioner under s 66 because the Board is of the opinion that the practitioner suffers from an impairment: s 66B(5).

74 Section 66C provides:

“66C Special provisions - impairment

(1) This section applies if the Board takes action against a registered medical practitioner under section 66 because the Board is of the opinion that the practitioner suffers from an impairment.

(2) The Board must, as soon as practicable after taking that action and, in any event, within 7 days after taking that action, notify the Commission that it has taken that action.

(3) The Board is to consult with the Commission to see if agreement can be reached as to whether the matter should be:

(a) dealt with as a complaint against the practitioner, or

(b) referred to an Impaired Registrants Panel.

(4) The matter is to be dealt with as a complaint against the practitioner only if, following that consultation:

(a) the Board and the Commission agree that it should be dealt with as a complaint, or
(b) either the Board or the Commission is of the opinion that the matter should be dealt with as a complaint.


(5) In such a case, the Board is to refer the matter to the Commission and the matter is to be dealt with by the Commission as a complaint made to the Commission against the practitioner concerned.

(6) The Commission is to investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation, refer the complaint to the Tribunal or a Committee.

(7) Section 52 (Serious complaints must be referred to Tribunal) applies in respect of any such action by the Commission.

(8) If subsection (4) does not apply, the Board is to refer the matter to an Impaired Registrants Panel.

(9) A matter may be referred to an Impaired Registrants Panel under this section even though the medical practitioner has been suspended under section 66. Part 5 applies in respect of such a referral as if the medical practitioner were a registered medical practitioner.”

75 I have referred to s 66B and set out the provisions of s 66C in full in an attempt to understand what process was undertaken in this case, whereby Dr Caladine’s matter was brought before the Tribunal. It is also necessary to set out the Medical Board’s finding and determination to understand whether the Board was required to proceed under s 66C or whether s 66B applied.

76 The Board found:

“ FINDINGS

In light of the written evidence made available to the Inquiry and the evidence presented at the hearing, the Inquiry accepts the evidence that Dr Caladine has a personality disorder with paranoid features and suffers from an impairment with the meaning of the Act. The Inquiry believes that this disorder would adversely impact his judgement and practise of medicine .

The Inquiry finds that Dr Caladine was not practising under the influence of a drug or alcohol.

The Inquiry finds that Dr Caladine prescribed drugs of addiction to patients whom he knew or ought to have known were addicts and that he prescribed narcotic drugs for inappropriate medical conditions and that this could give rise to a complaint concerning his conduct.

The Inquiry has a concern about Dr Caladine’s understanding of the magnitude of his own mental health and the impact it may have on his ability to practise medicine.

DETERMINATION

The Inquiry advised Dr Caladine that in order to protect the life and/or the physical or mental health of members of the public, the Inquiry was satisfied that action was necessary pursuant to Section 66 of the Act, and accordingly they would suspend Dr Caladine from the practice of medicine for a period of eight weeks effective from 19 December 2002.

Dr Caladine was further advised by the Inquiry that upon expiry of the eight week suspension, the delegates would need to consider whether it was necessary to extend such suspension for the purpose of protecting the public. Dr Caladine was entitled to forward documentation and/or submissions in support of either the non-extension of such suspension order and/or placing conditions upon his registration.

The delegates considered the issue of whether the matter should be referred to the Health Care Complaints Commission pursuant to Section 66B of the Act as a complaint or alternatively whether they should recommend to the Commission that the matter be dealt with by way of an Impaired Registrants Panel pursuant to Section 66C. The delegates considered the submissions filed by Ms Marsh dated 14 January 2003 concerning this issue.

The delegates have determined that this matter raises concerns from a public protection viewpoint which requires further investigation by the Health Care Complaints Commission and accordingly have determined to refer the matter as a complaint pursuant to Section 66B to the Commission.

The Inquiry advised Dr Caladine that he had a right of appeal to the Medical Tribunal against this decision pursuant to Section 95 of the Medical Practice Act, 1992.” (Emphasis added)

77 The Medical Board’s determination was that it was necessary to take action under s 66 “in order to protect the life and/or physical or mental health of members of the public”. Its determination was based upon its findings made in the immediately preceding section of its report. Those findings were of impairment (see first paragraph) as well as of the inappropriate prescription of narcotic drugs (see third paragraph). In the last paragraph there is an expressed concern as to whether Dr Caladine appreciated the extent of his impairment and its possible impact on his ability to practise medicine.

78 In making its determination to take action against Dr Caladine under s 66 “in order to protect … members of the public”, the Medical Board did not specify whether it was doing so because of its finding of impairment, or because of Dr Caladine’s inappropriate prescribing of narcotic drugs. However, having regard to the Medical Board’s statement that consideration had been given to the question whether the matter should be referred under s 66B or under s 66C, and to its final determination that the matter should be referred to the Commission under s 66B, it should be inferred that it conducted itself in accordance with the requirements of the Medical Practice Act and had not taken action under s 66 because of Dr Caladine’s impairment. In this regard, it should be noted that the Board had received submissions on this matter and it should be inferred that it understood the clear statutory prescription that governed referral under s 66B and s 66C respectively.

79 It follows that this ground should be rejected.

Conclusion

80 In my opinion, none of the grounds of appeal have been made out. Accordingly, the appeal should be dismissed with costs.

81 GILES JA: I agree with Beazley JA, save that as to the inappropriate forum issue. I express my own reasons.

82 Beazley JA has set out the findings and determination of the Medical Board. In my opinion two separate findings were made, one that Dr Caladine suffered from an impairment and the other that he had inappropriately prescribed drugs. The action taken by the Medical Board under s 66 was not only because the Board was of the opinion that he suffered from an impairment, but also because of its finding concerning inappropriate prescription of drugs. In those circumstances, referral to the Commission for investigation under s 66B was appropriate, indeed necessary in order that the inappropriate prescription of drugs be investigated and depending upon the outcome of the investigation taken to the Tribunal or a Committee. I do not think that there is any substance in a complaint that Dr Caladine was wrongly required to undergo a process ending up with a hearing before the Tribunal.

83 I agree with the orders proposed by Beazley JA.

84 HISLOP J: I agree with Beazley JA, save as to the inappropriate forum issue. In respect of that issue, I agree with Giles JA.

85 I agree with the orders proposed by Beazley JA.

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