Fernando v Medical Complaints Tribunal - [2004] TASSC 130

[2004] TASSC 130

CITATION: Fernando v Medical Complaints Tribunal [2004] TASSC 130

PARTIES:  FERNANDO, Dr Neville
  v
  MEDICAL COMPLAINTS TRIBUNAL

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 17/2004
DELIVERED ON:  12 November 2004
DELIVERED AT:  Hobart
HEARING DATE/S:  3 and 4 June 2004

JUDGMENT OF: Crawford, Slicer and Evans JJ

CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Admission of fresh evidence – In general – Appeal by way of rehearing from statutory disciplinary tribunal – Power to receive fresh evidence on hearing of appeal – Test to be applied – Power to remit matter for rehearing by tribunal – No express power.
Wollongong Corporation v Cowan (1955) 93 CLR 435, distinguished.

CDJ v VAJ (1998) 197 CLR 172; Ladd v Marshall [1954] 3 All ER 745, considered.
Medical Practitioners Registration Act 1996 (Tas), ss61, 62.
Supreme Court Rules 2000 (Tas), rr693, 672, 704, 709.
Supreme Court Civil Procedure Act 1932 (Tas), ss6(3), 39, 47.

Aust Dig Appeal and New Trial [85]

Professions and Trades – Medical and related professions – Medical practitioners – Discipline and removal from and restoration to Register – Procedure, evidence and appeal – Tasmania – Appeal to Supreme Court – Appeal by way of rehearing from Medical Complaints Tribunal – Power to receive fresh evidence on hearing of appeal – Test to be applied – Power to remit matter for rehearing by tribunal – No express power.
Wollongong Corporation v Cowan (1955) 93 CLR 435, distinguished.

REPRESENTATION:

Counsel:
             Appellant:  P W Tree
             Respondent:  P L Jackson
Solicitors:
             Appellant:  Simmons Wolfhagen
             Respondent:  Jackson & Tremayne

Judgment ID Number: [2004] TASSC 130
Number of paragraphs: 97

Serial No 130/2004
File No FCA 17/2004

DR NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J (Dissenting in part)

SLICER J
EVANS J
12 November 2004

Orders of the Court

Appeal allowed.
The orders of Blow J dated 1 April 2004, by which it was ordered that the appeal from the Medical Complaints Tribunal was dismissed and that the appellant pay the respondent's taxed costs of that appeal, are set aside.
The orders of the Tribunal made on 16 May 2003, other than the order prohibiting the reporting or other disclosure of the name of the patient or of any information that may identify her, are set aside.
The complaint is remitted to the Tribunal constituted by different members for the holding of another inquiry into the complaint.

Serial No 130/2004
File No FCA 17/2004

DR NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD J
  12 November 2004

The referral to the Medical Complaints Tribunal

Consequent upon receipt of a complaint by a past patient of the appellant that between July 1996 and February 1997 he indulged in inappropriate sexual conduct and treatment of her, the Medical Council of Tasmania referred the matter to the Tribunal pursuant to the Medical Practitioners Registration Act 1996 ("the Act"), s47(1). Under s51, the function of the Tribunal was to conduct an inquiry into the complaint. Oral evidence was received during the course of a hearing on 9 and 10 December 2002 and 12 February 2003. The Tribunal reserved its decision. On 27 March 2003, the Tribunal published its reasons for concluding that it was satisfied that all of the particulars in the notice of referral had been established. The particulars were:

"2That the practitioner is guilty of professional misconduct in that during consultations with his patient ... on various dates between July 1996 and February 1997, on approximately ten occasions, the practitioner:
(a)   required the patient to undress while he placed her under hypnosis and while she remained under hypnosis;
(b)   sexually assaulted the patient while she was under hypnosis by touching her breasts and genitals, stimulating her clitoris and inserting one or more of his fingers into her vagina;
(c)   removed items of the patient's undergarments;
(d)   required the patient to touch herself on her face, breasts and other parts of her body when that was neither appropriate nor necessary for the purposes of the consultation;
(e)   touched her face, breasts and lower abdomen while she was naked, when that was neither necessary nor appropriate for the purposes of the consultation;
(f)   required the patient to stand before a mirror while naked, observing her own body while he commented inappropriately upon her physical appearance by describing her as having a beautiful body, touching her breasts, groin and pubic hair and taking her hand and requiring her to touch herself similarly;
(g)   while inserting his fingers into the patient's vagina and stimulating her clitoris, telling the patient that she had to learn to do this for herself and to make herself good for her husband;
(h)   asked the patient whether she had ever masturbated when that was neither appropriate nor necessary for the purposes of the consultation;
(i)    engaged in all of the conduct described in paragraphs 2(a) to 2(h) for the purposes of sexual self-gratification.
3That the practitioner is guilty of professional misconduct in that on or about 4 February 1997 in the course of a consultation with his patient ... the practitioner:
(a)   took the patient's hand and placed it on the outside of his trousers over his erect penis and attempted to rub his penis with her hand while the buckle of his trousers belt, and the top button of his trousers, were undone; and
(b)   masturbated himself in the presence of the patient."

In essence, the Tribunal preferred the evidence of the patient to the evidence of the appellant, finding her to be a more credible witness than him.

Following a further hearing relevant to penalty, the Tribunal used its powers under s52 to make orders on 16 May 2003, that the appellant's name be removed from the Register of Medical Practitioners kept by the Council under the Act, s33, that he be fined $4,000, that he pay all of the Council's costs and expenses of, or arising from, the inquiry, and that the reporting or other disclosure of the name of the patient or of any information that might identify her, be prohibited.

The first appeal

Under the Act, s61(1), the appellant appealed to a judge against all of the decisions of the Tribunal. The grounds of appeal raised contentions to the effect (a) that the Tribunal erred by making the findings that the particulars of professional misconduct had been proved; (b) that the allegations of professional misconduct ought to be reconsidered because of fresh evidence relevant to the patient's credibility; (c) that the appellant was denied procedural fairness; and (d) that the penalties imposed by the Tribunal were manifestly excessive. On 2 and 3 December 2003, the learned judge heard argument as to whether he could receive evidence that was not before the Tribunal. On 3 December his Honour ruled that he could receive it. Affidavits of witnesses were read and four of the deponents were cross-examined. The parties then advanced arguments as to whether, in the light of the fresh evidence, which related to the patient's credibility, there should be a reconsideration or redetermination of the allegations of professional misconduct that were before the Tribunal, with each party having an opportunity to call witnesses who gave evidence before the Tribunal. On 8 December, the learned judge ruled that the fresh evidence did not warrant taking such a course. Written reasons for the ruling were published on 22 December. The hearing of the appeal continued and on 1 April 2004, it was dismissed.

The appeal to this Court

The appeal attacks the ruling of the learned judge that there should not be a reconsideration or redetermination of the allegations of professional misconduct in the light of the fresh evidence; the finding of the learned judge that no bias against the appellant was demonstrated by the Tribunal and its secretary; and the determination of the learned judge that the Tribunal's finding that the particulars of professional misconduct had been made out was not shown to be erroneous.

The Tribunal's reasons for finding that the patient was credible

The first reason given by the Tribunal for finding her credible was based on its observations of her demeanour:

"The Tribunal carefully observed [the patient's] demeanour whilst she was in the witness box and regarded her as a most impressive witness. She appeared as a highly nervous person who was steeling herself well to give evidence about matters which she plainly still found most upsetting. She showed no signs of prevarication and no signs of any hesitation in answering questions asked of her which were sometimes difficult. Importantly she appeared perfectly open and genuine in dealing with matters which were put to her which plainly took her by surprise and which were adverse to her case. She made no attempt to accommodate such matters by explanation or reconstruction which might have put her in a better light."

The second reason given by the Tribunal was that "there is no evidence before the Tribunal that [the patient] suffers or at any relevant time suffered from a psychiatric illness or disorder of which one of the manifestations was either the fabrication of or the false imagination of events". That was incorrect. There was in fact evidence that suggested the contrary, although the Tribunal determined that it did not lead to a conclusion of that kind. In doing so, there was a circularity in the reasoning of the Tribunal, for it first accepted that whatever the patient asserted was true and that she was a credible witness.

The Tribunal referred in its reasons to the patient's evidence in the course of cross-examination, that no medical practitioner had diagnosed her as suffering from any form of schizophrenia. The Tribunal then referred to the patient's evidence in cross-examination that prior to seeing the appellant she had been hospitalised "because I kept having the voices. I couldn't cope. I didn't know when I was taking the tablets, I was just taking them all the time and I wasn't capable of being on my own or coping". Of her medication at that time, she said "I took lots to stop the voices – I took lots. I never tried to die, I just took them". Asked what the voices were, she said: "It was all kinds. Like my mother sending me into the bathroom in to my father, when I was a little girl and when I took the tablets they would make you sleepier and it would go for a while." In that passage, the patient was referring to an event that she had previously alleged took place and about which the Tribunal concluded she was truthful for no reason other than that she asserted it and the Tribunal believed her. Her allegations included that her father was an alcoholic with a domineering and abusive personality and that when she was a child her mother and three sisters were constantly exposed to verbal and at times physical abuse. She alleged that her father was in the habit of having regular baths and that she would be instructed by her father and mother to go into the bathroom to assist him. He would lay back in the bath and she would have to bathe him. He would then instruct her to wash his penis until he obtained an erection. When this occurred, she would be sent out of the bathroom and her mother would be called in. She was about 5 – 6 years old at the time. She was instructed that she should not tell anyone about those events and that she would be belted if she did. I will deal with the fresh evidence later, but I note that it includes evidence from her mother that such an event never took place.

Asked when she started hearing the voices, the patient replied:

"It had been around for a while. I had always been on my own and felt different, from a child, and it was always like chasing me, that I was a bad girl and I thought that's why those things happened. You know, my father used to always give me a hiding with the strap – the razor strap or the stick, even when the others were naughty, because I had set the example. All of those things would come back when I watched television."

In that passage she was referring to physical abuse in the form of excessive corporal punishment at the hands of her father, and I note that the fresh evidence includes evidence from members of her family denying her assertions.

Her evidence, in cross-examination, continued: "I would see pictures, hear her or him call me to run the bath, and she'd call out [the patient's first name], and I would know what was going to happen ... ."

Evidence was given by a psychologist, Mr D W Henty, that the patient's evidence about hearing voices suggested a major psychotic illness, such as schizophrenia, but he could not assert positively, on the information available to him, that she in fact suffered from such an illness. The Tribunal referred in its reasons to Mr Henty's acceptance that "the hearing of voices in connection with events that really did happen is a perfectly normal thing". The Tribunal expressed its satisfaction that in giving evidence about the hearing of voices the patient was only ever referring to events that had actually occurred to her in the past. With respect, the Tribunal had no way of knowing that was so, because her evidence about that was not tested and could not adequately be tested at that time. As has been demonstrated by the fresh evidence, to which I will refer in due course, her assertions that the voices concerned actual events in her past, which the appellant could not challenge because he knew nothing about them, may well have been open to serious question. It was in one respect challenged by a combination of notes made by the appellant of a consultation with the patient and her evidence about it. I note that the Tribunal did not refer to Mr Henty's evidence that even if the voices were connected with actual events from the patient's past, the hearing of them could nevertheless amount to evidence of a psychosis if there was no logic in the process of hearing them.

The notes to which I referred were made in the patient's medical records that were kept by the doctors at the appellant's medical practice. They included a note made by the appellant of a consultation with him by the patient on 23 April 1996, prior to the alleged commencement of his professional misconduct. At that time she was regularly receiving treatment from doctors at the practice, particularly for psychological problems, notwithstanding that she was also consulting a psychiatrist, Dr Hyde, who practised elsewhere. A number of doctors worked from the practice. The patient did not consult the appellant until 10 April 1996. Prior to that she had consulted more than one other doctor. The appellant saw her for a second time on 23 April 1996 and his note of the consultation in the practice's records, appearing as it does between the record of the consultation on 10 April and one on 26 April, was as follows:

"v sleepy
no motivation to do anything
getting flashbacks – mother had
axe handle, father urinated over her
sister was cutting up her clothes
& she could not get away.
not cooking meals. Just
walking around the house. Feels
tired & drained.
Thinks husband at end of his tether.
Spoke to Stan Hyde."

The next record in the medical records of the practice is in a different handwriting and is the one dated 26 April 1996. The appellant’s evidence was that the handwriting was of Dr Hughes, who must have seen the patient that day. Dr Hughes recorded (inter alia) that her situation had deteriorated and that she still had regular flashbacks.

In cross-examination, the patient agreed that she had told the appellant about having flashbacks, which she described as being about "all my childhood, my marriage, the violence" and of events that happened to her. However, she denied telling him that she had flashbacks of her mother having an axe handle, her father urinating over her or her sister cutting up her clothes and she said that those events had never occurred in her life. She could provide no explanation for the appellant's record, which would be understandable if her evidence was true.

The Tribunal accepted the patient's evidence about those matters. It said that "her evidence was convincing and there is nothing about her psychiatric or psychological condition independently of the question immediately under examination which would suggest that she had been prone to false recollections or false reports of recollections or the recounting of recollections which are not later remembered". I comment with regard to the fresh evidence with which I will deal in due course, that those statements are now under challenge. The Tribunal made no reference to some medical notes in evidence that were made by practitioners other than the appellant and prior to the time when he first saw her in April 1996. One practitioner noted on 1 February 1994: "Tormented background – alleged incest/violence/loss of children when taken away by father." The practitioner noted that "this problem is psychological". On 19 July 1995, another medical practitioner recorded his or her consultation with her: "She accepts that she will have to see Ian Sale [a psychiatrist]. She saw him 11 yrs ago about violence at home c father. Father + 6 yrs ago. Mother still alive. Couldn't bear to touch her mother. Ref [?] to sexual abuse by father & role of mother in this." Another note made by a practitioner on, or about, 27 September 1995 recorded: "Long discussion. Much of all her trouble based [?] in childhood incest & violence from father & 1^st Hb." Complaints of her of incest were inconsistent with what she later told other medical practitioners and her evidence before the Tribunal.

The Tribunal then continued:

"It is more probable in the Tribunal's view that Dr Fernando's note [of 23 April 1996] is in error. There are other examples of errors in his notes, such as a reference to [the patient's] son being in prison in Western Australia when he was in fact in prison in South Australia and a reference to [the patient's] husband suffering from a serious illness when nothing which could be described as a serious illness had in fact befallen her husband.
Whilst it appears clear from the evidence that Dr Fernando knew of the sexual abuse of [the patient] by her father, he had not taken a full history from her which included the details of that abuse and it is possible that on the 23 April 1996, only the second time he had seen her during the relevant period, he misunderstood matters which related to that history involving the washing of her father's penis with the complicity of her mother, being given a hiding with a razor strap or stick and being punished even when it was her sisters who were naughty."

The appellant was asked by his counsel in the course of his evidence in chief, whether it was possible that his note that the patient referred to the axe handle, the urinating and the sister cutting up her clothes was an inaccurate transcription of what she said. His answer, which has the appearance of an honest one, was that "the story was quite bizarre and I certainly wouldn't have written it down if it wasn't told to me". He was not challenged about the matter. It was not put to him in cross-examination, either by the Tribunal or counsel assisting it, that his record was "in error", and the Tribunal was not justified in classifying it in that way. The only real possibilities were that the notes were a correct record, at least in substance, of what the patient communicated to the appellant, or that he deliberately made a false record. That he may have unwittingly made an incorrect note that the patient had told him that she had been experiencing flashbacks about her mother having an axe handle, her father urinating over her and her sister cutting up her clothes is so unlikely that it plainly must be rejected. Yet that is what the Tribunal concluded. With respect, it was absurd to suggest, as it did, that it was possible that the patient told him that her father required her to wash his penis with the complicity of her mother and that she had been given hidings with a razor strop or stick and punished when it was her sisters who were naughty, and the appellant "misunderstood" what she had said and recorded it as being of flashbacks of her mother having an axe handle, her father urinating over her and her sister cutting up her clothes.

The Tribunal justified its findings about this aspect by referring to what it said were two examples of other errors in the appellant's record-keeping. The reference was to a record made by him of a consultation by the patient on 14 January 1997:

"Very disturbed
1 Husband diagnosed c serious illness
– accused of causing stress
2 Son in prison – in WA."

In his evidence-in-chief, the appellant explained the note by saying that the patient was very distressed and said that her husband was diagnosed as having a very serious illness, that she had been accused of causing all the stress and that her son was in prison in Western Australia. The patient was cross-examined by the appellant's counsel about the consultation. Initially she said that her husband had not been sick, and on being pressed she said that he had a hernia repair operation. She said that she had no idea why she would say that he had been diagnosed with a serious illness and she did not believe that she said such a thing. On being referred to the note that she had been accused of causing stress, she did not deny it, simply replying that "we had stress in our household". With reference to the note that her son was in prison in Western Australia, she said that he was in prison in South Australia. When being cross-examined by counsel assisting the Tribunal, it was not suggested to the applicant that his record of those matters was mistaken or erroneous. Any error about the state in which the son was in prison could have been made by either the patient, when she spoke to the appellant, or by him, when he recorded what she had said, but it was not significant. The Tribunal had no way of knowing whose error it was. Nor could the Tribunal determine whether the patient told the appellant that her husband had been diagnosed with a serious illness or even whether he had suffered a serious illness. The husband did not give evidence and even if he had done so and denied the suggestion, it would not have been determinative of what the patient may have told the appellant. In summary therefore, the record of 14 January 1997 could not reasonably be used by the Tribunal as in any way probative of the fact that his record of 23 April 1996 was "in error". I add that having regard to the fact that it was undoubtedly correct that the patient's son was in prison, it is all the more likely that she told the appellant that and he recorded it as a consequence, and that makes it all the more likely that his record that her husband had been diagnosed with a serious illness was made as a consequence of what she had said to him.

On the evidence it had before it, the Tribunal could not determine whether the patient had ever suffered from a psychiatric illness or disorder of which one of the manifestations was either the fabrication of or the false imagination of events, but there was a considerable body of evidence that established that she had a long history of psychiatric or psychological disturbances. She gave evidence of hearing imaginary voices and experiencing flashbacks. There were inconsistencies between her evidence and the appellant's clinical notes. The inconsistencies in relation to the notes of 23 April 1996, ought to have raised in the minds of the members of the Tribunal doubts concerning the credibility of the patient, in particular her honesty or her ability to accurately recall events in the past.

The third matter relevant to the credit of the patient and to which the Tribunal referred in its reasons, concerned her inability to recall that the appellant had carried out physical examinations of her on two particular occasions. It was advanced on behalf of the appellant as detrimental to her credit. The Tribunal accepted that in the course of a consultation in June 1996, a full physical examination of the patient was performed by the appellant and he took a pap smear and on 28 August 1996, he conducted a vaginal and physical examination because she had complained of a lump in her breast and irregular periods. The patient's evidence was that she was unable to recall those events. The Tribunal accepted that it would normally be expected that details of such examinations would be recalled, but concluded that her failure to remember the details was not destructive of her credibility because "no doubt" her recollection of her treatment by the appellant was dominated by the particulars of misconduct she alleged. It was not necessary for the factor to be destructive of the patient's credit before it could be used adversely to her credit, and once again, there appears an element of circularity in the Tribunal's reasons, for it accepted that her allegations were true and used that to explain away her claim to have lost her memory of the physical examinations. Understandably, the appellant had sought to rely on her claimed loss of memory as a matter detrimental to her credit, for it suggested that her ability to accurately remember events that occurred during the relevant period was open to question. The Tribunal gained comfort from the patient's evidence that she was also unable to remember an occasion when a pap smear was taken from her by Dr Anne Wilson.

The fourth matter considered by the Tribunal that was relevant to the patient's credit, concerned her continuing to have nine further hypnotherapy sessions with the appellant until February 1997, following his first alleged improper dealing with her that was said to have occurred in the course of a hypnotherapy session on 31 July 1996. She gave as a reason that the appellant had promised that he could make her better and she believed that he would do so. She continued:

"'WITNESS: Yes, I was desperate to get better. I – even when he told me about the cure, I didn't tell – my husband was so excited I was going to be better, and be like normal people, and battle – go back to work properly again, and I couldn't believe that after all the doctors I'd been to, that someone was going to fix me. And I really believed I was going to get better, that that was something I had to go through to get better.
CHAIRMAN: That because of what had happened to you in your childhood, this treatment was appropriate.
WITNESS: He – yes, he knew all about that. But I didn't know he was – that was – I didn't that was part of it, to do touch, and do that with his hands. I didn't, really I didn't. When I opened my eyes the first time, he told me I had to keep them shut or it wouldn't work. And I used to keep them shut and wait for it to float away, but nothing happened. I would be so scared, but I still kept going back. I questioned myself lots, why did I keep going back. I haven't got an answer for that."

The Tribunal did not regard her explanation merely as a plausible one. Once again, there was circularity in the reasons, for it positively accepted that evidence. To do so, it had to have already found, or to have assumed, that her allegations against the appellant were true. The Tribunal said that the patient's evidence "clearly establishes that she had great trust in Dr Fernando, that she believed that hypnotherapy would provide a cure for her where medication had failed and she was driven to keep going back and endure what was occurring to her by the imperative of becoming well". The Tribunal regarded her explanation as consistent with an explanation she gave to her general practitioner at the time, Dr Brunacci, on 14 April 2000, which was four years after the alleged misconduct, that she could not understand why she kept going back to the appellant and she found that difficult to live with. However, it was not Dr Brunacci's evidence that she explained that her reason for continuing to consult the appellant was her belief that he would make her better, and therefore, the Tribunal's reliance and opinion based on consistency between her two statements, is of doubtful validity.

The fifth matter that related to the patient's credit and which was dealt with by the Tribunal, was her failure, after the appellant had left Launceston to live and work in Melbourne in about March 1997, and she ceased to be treated by him, to complain to another doctor at the medical practice, or to anyone else, until making her first complaint to Dr Brunacci on 22 July 1998. Prior to that she had been consulting various doctors regularly, sometimes as often as every week. At the time when the appellant's misconduct was allegedly taking place in the course of hypnotherapy, she was continuing to consult Dr Johl, the psychiatrist, but told him nothing of the misconduct. On being asked why not, she said that she was too scared to tell anybody. It was her evidence that when she first told Dr Brunacci, "it just came out ... I made him promise not to tell anybody". She explained further that Dr Brunacci wanted to put her back into hospital for a rest, because she was suffering from chronic urticaria, and she "thought that if he knew, I might get better", so she told him that something bad had happened to her and that led to her giving more details. On being pressed in cross-examination for a reason why she had said nothing about the matter to Dr Wilson, who had treated her on a great number of occasions after the appellant had left Tasmania, she gave as her reason: "He was a doctor, who would believe me against a doctor? They're not supposed to do that to you." However, on being asked to explain why she had not told her husband or her friend across the road, she said: "I couldn't tell anybody. I couldn't. I couldn't. I used to just get under the shower."

The Tribunal accepted her explanation as to the issue, saying that it was consistent with what she had said to Dr Maclaine-Cross, when she first made her allegations to him in about May 2000, and to Dr Brunacci, when she first made her allegations to him in July 1998. Consistency with previous explanations for not telling others is of doubtful probative value. The Tribunal also thought that her explanations were understandable, with which I agree, and inherently probable, with which I do not agree, unless the truthfulness of her allegations against the appellant are first found or assumed. It is of course trite, for those who work in criminal courts, to say that there may be many reasons why a victim of sexual assault or mistreatment might not complain for a prolonged period of time.

As mentioned earlier, at the same time as the appellant was conducting hypnotherapy sessions with the patient, she was consulting Dr Johl in respect of the same psychiatric or psychological illness or disorder for which she was being treated by the appellant. The Tribunal regarded her failure to complaint to Dr Johl "as neutral, insofar as the determination of the credit of either [the patient] or Dr Fernando is concerned". In the Tribunal's view, the fact that the appellant was aware that the patient was also being treated by Dr Johl for allied matters at the same time as he was treating her, "does not necessarily establish that he would not have been guilty of the conduct complained of by [the patient] for fear that she might inform Dr Johl of the fact". That was a valid comment to make, but it was nevertheless a factor to be taken into account in favour of his denial. However, the Tribunal did not think so, describing it as "not eloquent" in that regard.

The Tribunal's reasons for finding that the applicant was not credible

The Tribunal's finding that the appellant was not a credible witness was based to some extent on observations of his demeanour:

"Turning then to Dr Fernando's credit, the Tribunal was firstly unimpressed by his demeanour as a witness. Making all due allowance for the difficult situation in which Dr Fernando would find himself if an innocent medical practitioner faced with very serious allegations, the Tribunal nonetheless felt that he was not spontaneous in his answers to questions in cross-examination and that his evidence lacked conviction in those areas where he agreed with some of the facts asserted by [the patient] but necessarily by virtue of his denials of misconduct did not accept all of the details asserted by [the patient] as surrounding those facts."

The Tribunal based its conclusion that the appellant's evidence lacked conviction on three aspects of it. The first such aspect arose out of the patient's evidence that after hypnotherapy sessions, the appellant had her stand naked in front of a mirror. His evidence was that he did no such thing, but that while she was under hypnosis, he would ask her to imagine that she was looking in a mirror. In cross-examination he conceded that it was possible that there may have been an occasion when after hypnosis, he asked her to look at herself in a real mirror, that was in the room, but he emphasised that it was not part of the hypnotherapy. He added that there was a time when she was having a problem with her weight and it was possible that it happened then. It is the appellant's case that he was simply conceding that something possibly happened and that it could not fairly be used against him in relation to his credit.

The second aspect arose out of evidence given by the patient that he would have her touch her breasts and other parts of her body. In cross-examination he said that when looking at herself in the imaginary mirror, when under hypnosis, he would have asked her to learn to touch herself and she would have touched her hair, face and other parts of her body, but he denied making any mention of intimate parts of her body such as her breasts. He accepted that he may well have said to her "you're an attractive lady", "you're good looking, why don't you like yourself", "you're all right" or "there's nothing wrong with you". It is his case that once again, he was simply conceding what might have occurred, and that his concession constituted no basis for a conclusion that he was less than truthful.

The third and final aspect concerned the arrangements made by the appellant with some of his patients when he was about to leave Tasmania. Under cross-examination, he said that although he did not specifically recall it he did not deny that he gave the patient his address and work telephone number in Melbourne. He explained that he left at very short notice and most of his patients were given that information and invited to contact him if they had any problems. He added that it was routine and that his number and address were left at the desk for any patient who wanted them. He continued by saying "it was nothing that was specifically for [the patient], it was something I done for all my patients". He was then asked whether he "told her to ring you at any time?" He responded that he told all his patients that they could ring. It was his statement that he told all his patients they could ring that had adverse consequences for him in the mind of the Tribunal. He was next asked whether he circularised all his patients and he said no, it was only when he was seeing the patients in the period of about one month between his decision to leave and when he in fact left, that he personally told them, but as to the rest he left instructions at the desk to give the information to those patients who enquired for it. The Tribunal took the view that his assertion that he told them all was unrealistic and that he resiled considerably from it because he realised that. It is the appellant's case that it was logically unsustainable to use something like that against him when assessing credibility in a case where the allegations were grave. With respect to the Tribunal, I agree. To say that he told all his patients may have been imprecise and an exaggeration, but it was not compelling as a significant discrediting factor.

The fresh evidence and how it came to be discovered

Early in its reasons, the Tribunal made the following observation:

"It is relevant to observe that prior to Dr Fernando taking over [the patient's] medical management in April 1996, she had had troubling psychiatric and/or psychological symptoms going back over a number of years and relating both to the sexual abuse of her as a child by her father and the physical abuse of her by both her father and her first husband."

There was a substantial body of evidence that the patient displayed such symptoms and that she had consulted and been treated for them by a number of medical practitioners, including more than one psychiatrist, over many years. However, that they related to actual sexual abuse of her as a child by her father and actual physical abuse of her by both her father and her first husband, as was found by the Tribunal to be the case, and which the appellant was unable to challenge at the hearing before the Tribunal, has been substantially challenged by fresh evidence. That she had told the truth about such matters, and was telling the truth about them when giving evidence to the Tribunal, was a fundamental assumption and finding of the Tribunal when it accepted her as a credible witness. There is now available evidence that in a significant way suggests that she has told many lies about such matters, or alternatively, that her reporting of such events may be evidence of a major psychotic illness, which was suggested as a possibility by Mr Henty's evidence but which was rejected by the Tribunal.

The disciplinary proceedings attracted media interest. Publications did not identify who was the complainant involved. Members of the patient's family suspected it was her at a time after the hearing commenced in December 2002 but before the decision was reserved on 12 February 2003.

On 13 January 2003, the patient's sister, who I will call "J", telephoned the Registrar and Chief Executive Officer of the Medical Council. By virtue of the Act, s50(8), she also performed the role of secretary to the Tribunal. J enquired as to the identity of the complainant in respect of the inquiry. The Tribunal had previously ordered that no information be published that might disclose the identity of the complainant. Understandably, the Tribunal's secretary declined to provide the information that was sought and she explained why she could not do so. J gave her own name, identified for the secretary that she was in fact the patient's sister and asked if the complainant was or was not her sister. Once again the secretary declined to provide the information. J then volunteered information that the patient was a liar, and said words to the effect that "she can lie about herself but she can't lie about others". She asked for the name and telephone number of the appellant's legal adviser. The secretary said that she would take legal advice. Thereupon she consulted the counsel who was assisting the Tribunal and then telephoned J and communicated her refusal to disclose even that information, but at the same time gave to J an assurance that the appellant was represented by senior and competent counsel who had already extensively cross-examined the unidentified complainant. In cross-examination, the secretary conceded that she may also have told J that the matter was being heard before a Tribunal that included experienced medical practitioners.

Plainly the secretary should have disclosed the identify of the appellant's legal adviser or at least contacted the legal adviser to put him in touch with J. The evidence gives rise to a strong suggestion that the secretary was biased against the appellant and his denials of the patient's allegations. In the course of the telephone conversations she had with J, the secretary volunteered to the sister that it was a matter of public record that the Medical Council had referred another matter of complaint to the Tribunal concerning allegations against the appellant. She did not mention that the other matter of complaint had been dismissed in a summary manner some years earlier. She also informed the patient's sister that it was also a matter of public record that similar matters had been before the Victorian Medical Board in relation to the appellant.

A decision was made by J that for the time being at least, she would not pursue her enquiry, having been deterred from doing so by the secretary's responses and being unable to contact the appellant and his legal advisers.

It was only after the Tribunal had made its findings and ordered that the appellant's name be removed from the Register, and the consequent media publicity, that J successfully made contact with the appellant's counsel, and the appellant first became aware of the fresh evidence. At the hearing of the first appeal it was received in affidavit form and three of the deponents were cross-examined. The learned judge found that it was credible. Apart from some small inconsistencies, the deponents who were cross-examined were substantially unshaken. Although the fresh evidence was capable of belief, it was not known, and it is still not known, what the patient's response to it may be. She might contradict much of it. The learned judge found there was no reason to think that any of the evidence of the new witnesses was available to the appellant or his legal advisers until after the Tribunal had made its final orders and that the need to exercise due diligence in relation to the proceedings before the Tribunal did not require the appellant, or his legal advisers, to make enquiries of the patient's relations or former husband on the off-chance that one or more of them might impart information that could be destructive of her credibility.

The fresh evidence came from two of the patient's sisters, J and M, her mother, who was her father's wife and who lived with him until his death in 1989, and the patient's first husband of 16 years. The significant parts of the fresh evidence relating to the patient's credibility can be summarised as follows:

(a)The patient said that she was sexually abused by her father when she was about five or six years old; that he was in the habit of having regular baths; that she would be instructed by her parents to go in and assist her father in the bathroom; that she would have to bathe him; that he would instruct her to wash his penis until he obtained an erection; and that she would then be sent out of the bathroom and her mother would be called in. Her mother contradicted this and said that such events did not take place. She said that her late husband was a very private person who never allowed others to see him in the bath.
(b)The patient said that her father was an alcoholic with an abusive personality; that he physically and verbally abused all his daughters; that he sexually abused one of her sisters (who did not give evidence); and that he did not allow his daughters to play with other children. The evidence of two of her sisters and her mother contradicted those matters.
(c)The patient said that her mother did not show her children any warmth or affection. That was contradicted by her mother and two sisters.
(d)In giving her history, the patient said that she was married off by her father and that he had been involved in the selection of her former husband and the husbands of her sisters. Her mother, two sisters and former husband contradicted what she said.
(e)In giving her history, the patient said that her first marriage was an abusive relationship; that her former husband physically abused her and her two children; that he kidnapped the children when they were aged 12 and 15 and she was unable to trace them or have any contact with them for 3½ years; that one son had made contact at the age of 16 and had become a street kid and was breaking into houses. Her former husband contradicted all of those assertions and her mother and two sisters also contradicted them, to the extent that they could from first-hand knowledge.
(f)One of the patient's sisters said that the patient falsely alleged in about 1996 that their father sexually assaulted all his daughters; that the other daughters were blocking it out; and that one day they would realise what had happened. She also said that the patient had falsely told former neighbours that their father sexually assaulted his daughters. As a result of her false allegations, two of her sisters instructed a solicitor who wrote to the patient on 26 August 1996, demanding that she stop spreading false allegations regarding them. A copy of the letter was presented in evidence.
(g)The patient’s former husband said that he became aware, from information provided to him by the patient’s family, that the patient had falsely alleged that his father had sexually abused his children.
(h)One of the sisters said that the patient once falsely told their father that their mother had run up a lot of accounts.
(i)One of the sisters said that the patient had falsely told people that their father was an alcoholic. All of the new witnesses denied that he was an alcoholic.
(j)One of the sisters said that the patient told her a few years ago that she was gong to take the appellant and a female doctor to court, and that she was not going to do that for herself but to get a large amount of money which she would use to set up her sons in business and in their own homes.
(k)The patient's mother said that several years before the proceedings before the Tribunal, the patient told her that she was going to sue the appellant and also a female doctor; that it was something to do with medication or wrong medication; and that the patient said that she was determined to get some money from it all to pay back expenses she had incurred on her husband and to set her two sons up in business.
(l)The patient's mother said that the patient once fell and hurt herself at home, went to work the next morning, pretended to have slipped over and hurt her back at work, made a fraudulent claim for compensation and obtained a big payout.
(m)The patient's mother said that the patient falsely told people, when her father was dying, that she spent hours sitting by his bedside to give her mother a break.
(n)One of the patient's sisters said that the patient physically abused the son whom she said became a street kid.
(o)One of the sisters said that after her husband had voluntarily left his employment the patient falsely told her father that the sister's husband had been sacked for stealing.

As was observed by the learned judge, none of the fresh evidence related directly to the events said to have occurred during the patient's consultations with the appellant. The fresh evidence comprises a substantial body of evidence suggesting that the patient made a number of false statements when giving her psychiatric history and her evidence to the Tribunal, and that she has a long-standing propensity to tell false stories.

Tribunal bias

Grounds of appeal 5 and 6 are:

"5Further, his Honour erred in finding, [2004] TASSC 29 at [12]-[20], that a fair-minded observer or one of the parties would not reasonably apprehend that the members of the Tribunal might not bring impartial minds to the resolution of the questions they were required to decide.
6His Honour should have found a fair-minded bystander or a party apprised of all the circumstances would or might entertain a reasonable apprehension that the Tribunal including its Secretary, alternatively the Tribunal by reason of or in the light of its Secretary's comments, actions or opinions, would or might not bring impartial and unprejudiced minds to the resolution of the question before it."

The learned judge noted that pursuant to s50, the Tribunal consisted of five persons being two permanent members appointed by the Medical Council, one a legal practitioner of not less than 10 year's standing and the other a person who was not a medical or legal practitioner, and three special members who were registered medical practitioners appointed by the Council for the purpose of the inquiry and who were considered by the Council to have skill, knowledge or experience relevant to the inquiry. By subs(8), "the Registrar [of the Council] is to act as secretary to the Tribunal". The learned judge noted that the Act is completely silent as to the role of the secretary to the Tribunal and the secretary's powers and duties. In fact, apart from subs(8), the secretary is not mentioned at all in the Act or any subordinate legislation. The secretary was not a member of the Tribunal and was its subordinate officer. His Honour noted that there was no suggestion that the secretary had told any member of the Tribunal anything of what she had been told by the patient's sister, J.

I observed earlier in these reasons that the evidence about the response the patient's sister received to her telephone call to the Tribunal's secretary gives rise to a strong suggestion that the secretary was biased against the appellant and his denials of the patient's allegations. It was submitted to the learned judge by the appellant's counsel that the response also gave rise to a reasonable apprehension that the Tribunal was biased.

The learned judge observed that the initial question was whether a fair-minded lay observer, or one of the parties, might reasonably apprehend that the members of the Tribunal might not bring impartial minds to the resolution of the questions that they were required to decide. See Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294; R v Watson; ex parte Armstrong (1976) 136 CLR 248; R v Lusink; ex parte Shaw (1981) 55 ALJR 12; Re JRL; ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Webb v R (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee (2000) 205 CLR 337.

The learned judge accepted that it may have been open to him to conclude that the conduct of the secretary would lead a well-informed and fair-minded observer to apprehend that she was biased against the appellant, to such an extent as to try to prevent the patient's sister from doing anything to assist him. Nevertheless, his Honour concluded that the hypothetical fair-minded observer would not transfer such a reasonable apprehension of bias on the part of the secretary to the members of the Tribunal itself. The secretary's role was purely an administrative one. She had no role in relation to the deliberations by the five members of the Tribunal concerning guilt, innocence and penalty, and there was no suggestion that she was present during the Tribunal's deliberations.

The learned judge referred to the statement of the Full Court of the Federal Court in Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 320 that "statements made outside and without the authority of a court or a tribunal by persons who are not its members cannot, in general, disqualify it from proceeding". His Honour distinguished R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 and Stollery v Greyhound Racing Control Board (1972) 128 CLR 509. In the former case a deputy clerk to justices hearing a dangerous driving case, had improperly been present with the justices when considering their decision, for he was a solicitor whose firm was acting against the defendant in civil proceedings arising out of the collision allegedly caused by the defendant's driving. In the latter case a member of a Greyhound Racing Tribunal alleged that a person made an improper gift to him and then improperly participated as a member of the Tribunal hearing the allegation.

There was no error in the conclusion of the learned judge, nor in his reasons for reaching that conclusion, that even if the secretary was biased against the appellant, it did not follow that a fair-minded observer could entertain a reasonable apprehension of bias or pre-judgment on the part of the Tribunal.

The nature of an appeal under s61 and the power to receive fresh evidence

Grounds of appeal 1A, 1B, 1, 2, 3 and 4 are:

"1AHis Honour erred in law in holding that it was necessary, in order for evidence aduced [sic] by the appellant on the appeal to be admitted upon the appeal before his Honour, for such evidence to satisfy any test other than having not been reasonably available to the appellant at the time of the hearing before the respondent;
1BHis Honour erred by failing to conduct the appeal upon material including the evidence aduced [sic] by the appellant before his Honour on the appeal.
1His Honour erred in holding, [2003] TASSC 139 at [21]-[25], that the test as to whether the Court would conduct a rehearing on the basis of evidence adduced by the Appellant on the appeal, which evidence had not been placed before the Respondent Tribunal ('the new evidence'), was the test in Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444-445.
2His Honour, given the seriousness of the allegations adjudicated by the Tribunal, the circumstance that the conduct alleged would if proved constitute criminal conduct, the gravity of the sanctions flowing from a finding of guilt and the nature of the proceedings against the Appellant ('the relevant circumstances'), should have applied a test by which the Court would conduct a rehearing on a basis of the new evidence in the event that the Court were satisfied that:
(a)an opposite result might have been produced had the new evidence been before the Tribunal, or
(b)there was a significant possibility that an opposite result would have been produced, or
(c)the likelihood of an opposite result was such that in the relevant circumstances the interests of justice favoured a rehearing.

3In the alternative, his Honour erred, [2003] TASSC 139 at [26]-[32], in the manner in which his Honour applied the test in Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444-445 on the question whether to conduct a rehearing on the basis of the new evidence.
4His Honour, applying the test in Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444-445, should have conducted a rehearing on the basis of the new evidence."

So far as it is relevant, s61(1) simply provides that a person may appeal to the Supreme Court against a decision of the Tribunal under s52. The powers given to the Court on the hearing of such an appeal are contained in s62 and are limited. For example, no power is given to remit the matter for a new hearing before the Tribunal. The section provides:

"At the hearing of an appeal, the Supreme Court may ¾
(a)   confirm the decision of the Council or Tribunal; or
(b)   set aside the decision of the Council or Tribunal; or
(c)   set aside the decision of the Council or Tribunal and substitute such other decision as the Council or Tribunal has jurisdiction to take [sic] as the court specifies."

I am aware that the other members of the Court hold the view that notwithstanding the apparent limitation imposed by s62 on a court's power with regard to the disposition of an appeal brought under s61, this Court nevertheless has power to order a rehearing by the Tribunal. It is my understanding that their views are based respectively on the provisions of the Supreme Court Civil Procedure Act 1932, ss39 and 47, and the Supreme Court Rules, rr704, 709(1), 693 and particularly, r672(9). It is my view that ss39 and 47 have no application to this aspect of the case, because they concern only the powers of this Court to order rehearings of trials or hearings before single judges and not to order rehearings before statutory tribunals, the decisions of which come before this Court for appellate review after a first appeal to a single judge. As to subr672(9), its effect is that the "Full Court may order a new trial on any question without interfering with the finding or decision on any other question", and the other rules to which I have referred, purport to extend that power to a judge hearing an appeal from a statutory tribunal. However, I am of the opinion that subr672(9) does not give to the Full Court, or any other court, the power to order a new trial. That power is given to the Full Court only by the Supreme Court Civil Procedure Act, s39(1), when hearing an appeal from a judge. I also note that subr672(9) serves no practical purpose, for it merely repeats the effect of some of s39(4).

It is also my opinion that the Medical Practitioners Registration Act, s62, should be interpreted as limiting the powers of the Supreme Court upon the hearing of an appeal from the Tribunal, to the making of the orders referred to in it. An order for a rehearing is not one of those. For these reasons, the Supreme Court Civil Procedure Act, s6(3), has no application.

The learned judge observed that the Act is silent as to the nature of an appeal under s61, and considered whether it was an appeal in the strict sense, in which case the appeal court would be limited to considering whether the Tribunal made an error, having regard only to the evidence that was before the Tribunal; an appeal by way of rehearing, in which case the appeal court would re-determine the issues raised upon the hearing of the appeal as at the date of the rehearing, considering the evidence that was before the Tribunal, subject to the exercise of the power, if any, to receive additional evidence; or an appeal by way of hearing de novo, involving a fresh hearing and determination of the matter, unfettered by the proceedings in the Tribunal. His Honour considered the Supreme Court Civil Procedure Act 1932, s6(3), and the Supreme Court Rules 2000, rr693 and 704, and concluded that an appeal pursuant to s61 was an appeal of the second kind, that is an appeal by way of rehearing, noting that to be common ground between the parties to the appeal. The conclusion is not challenged on the present appeal.

The learned judge then considered obiter dicta in re Medical Act 1959 [1973] Tas SR 43 at 54 and A v Law Society of Tasmania (2001) 10 Tas R 152 at 158 and some 18^th and 19^th century authorities, and concluded that an appeal by way of a rehearing based partly on fresh evidence was within the scope of the Act, ss61 and 62. That conclusion is also unchallenged. In the course of reaching it, the learned judge observed that the form of appeal that is know as an appeal by way of rehearing was available in the Court of Chancery prior to the Judicature Act 1873 (Eng), adopted as the remedy in the new English Court of Appeal upon the passing of that Act and subsequently adopted as a remedy available in Australian appellate courts. Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 108 – 109.

Having determined that the fresh evidence was potentially credible, that it was unavailable to the appellant and his legal advisers before the Tribunal made its decision and that they could not reasonably have been expected to obtain it with the exercise of due diligence before the Tribunal made its decision, the learned judge next considered what test should be applied when determining whether to receive fresh evidence on the hearing of an appeal by way of rehearing, equating the appeal from the Tribunal to one from a court. It was submitted for the appellant that the nature of the fresh evidence was such that it would have made a different result in the Tribunal proceedings so likely that the matters before the Tribunal should be reconsidered or re-determined along with the fresh evidence. His Honour noted that as there appeared to be no power under s62 to remit the matter to the Tribunal, any such reconsideration or re-determination might have to be undertaken by himself.

The Supreme Court Civil Procedure Act 1932, s48(3), provides a power for this Court to receive further evidence upon any appeal from a judgment, order or other determination given or made after the trial of any cause or matter upon the merits, whether or not the appeal is from a jury or a judge. However, except as to matters which have occurred after the date of the judgment, order or determination, special leave of the Court is required, and the subsection states that leave shall only be granted in cases in which (a) the evidence was not in the possession of the party seeking to have it admitted, and could not by proper diligence have been obtained by that party, before the termination of the trial, or (b) there is some other special circumstance which in the opinion of the Court, justifies the omission of it. There is no corresponding provision that applies to appeals from inferior courts or tribunals to single judges. I also note that s50(1)(c) imposes substantial limitations on the power of the Full Court to order a new trial on the ground of fresh evidence, including a requirement that it appear to the Court that the fresh evidence is such as is to be believed, and if believed, would form a determining factor in the result of the case. However, such a limitation does not apply to the mere reception of fresh evidence by this Court when conducting an appeal by way of rehearing.

When determining the test to be applied when considering whether to admit the fresh evidence on the hearing of the appeal, the learned judge considered some of the different positions that have been taken in this country by appellate courts in criminal cases and appellate courts in civil cases, when considering whether to remit cases back to the court of first instance for a new trial. Different tests have been applied. Provided that the new evidence is potentially credible, was not available to the appellant or his or her legal advisers at the trial and they could not reasonably have been expected to obtain it with the exercise of due diligence, in criminal appeals "the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial". Mickelberg v R (1989) 167 CLR 259 at 273; Ratten v R (1974) 131 CLR 510; Gallagher v R (1986) 160 CLR 392. The "significant possibility" test arises from common legislative provisions requiring courts to allow criminal appeals whenever there has been a miscarriage of justice. Such provisions were modelled on the Criminal Appeal Act 1907 (UK), s4(1). In this State, the provision is to be found in the Criminal Code, s402(1).

However, appellate courts in civil cases have no such statutory obligation and they have emphasised the desirability of finalising litigation. The reasons for the two different approaches were explained by Jordan CJ in R v McDermott (No 1) (1947) 47 SR (NSW) 379 at 381 – 382 and were quoted by the learned judge in his reasons on the first appeal in this case. I will also quote them in due course.

A test to be applied to fresh evidence on motions for a new trial in civil cases, was stated by Dixon CJ, with whom the other members of the High Court agreed, in Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444 – 445:

"If cases are put aside where a trial has miscarried through mis-direction, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.
In Orr v Holmes (1948) 76 CLR at 640 – 642 there are collected a number of different expressions which have been judicially used at various times. Their result is then summed up in these words:― 'No doubt some of the foregoing expressions are susceptible of a weaker application than others to them. But the evident purpose of all of them is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable.'"

It was submitted by counsel for the appellant that the test that is applied in criminal appeals should be applied in this case and not the Wollongong Corporation test. Counsel emphasised that the proceedings before the Tribunal were disciplinary and the nature of the orders it might make were punitive. Counsel for the Tribunal submitted that notwithstanding those aspects of the proceedings, the civil standard of proof applied to them, subject to the principles expounded in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, and the Wollongong Corporation test was the correct one for this case.

The learned judge agreed with the argument advanced on behalf of the Tribunal. He was unable to find any reported case as to whether the test for criminal cases or the Wollongong Corporation test should be applied upon an appeal from a disciplinary tribunal on the ground of fresh evidence. His Honour pointed out that the proceedings before the Tribunal were not proceedings in which the appellant's life or liberty was at risk and that the "significant possibility" test of Gallagher and Mickelberg did not appear to have been applied in other than criminal cases. Because disciplinary proceedings are commonly regarded as a species of civil proceedings, the learned judge considered that he would be acting contrary to well-established principles if he was to apply that test in this case. His Honour therefore accepted the Tribunal's argument that the Wollongong Corporation test had to be applied in this case. The learned judge referred to the principles of Briginshaw v Briginshaw (supra) and added that it was necessary to bear in mind that the result in the proceedings before the Tribunal depended primarily upon the Tribunal's assessments of the credibility of both the patient and the appellant, and that it was obliged to be conscious of the seriousness of the allegations made against the appellant and the gravity of the consequences which might flow from finding them proved.

The learned judge then made an evaluation of the likely impact of the fresh evidence and in the course of doing so, his Honour considered the reasons given by the Tribunal for accepting the evidence of the patient and rejecting the evidence of the appellant. He accepted that if the "significant possibility" test for new trials in criminal cases was applied, there was a significant possibility that the cross-examination of the patient as to the matters raised by the fresh evidence, and the adducing of some of that fresh evidence to contradict her, could have resulted in the Tribunal not finding the allegations of misconduct proven. However, the learned judge determined that the Wollongong Corporation test was not satisfied, because he did not think that a different outcome in the Tribunal proceedings would have been a certainty, or so highly likely as to make it unreasonable to suppose to the contrary. As a result, his Honour concluded: "If this were an appeal from an inferior court of civil jurisdiction, it would be inappropriate to order a new hearing on the ground of fresh evidence. Since this is an appeal from a statutory tribunal to which this Court cannot remit a matter for a new hearing, my conclusion is that the fresh evidence does not warrant a reconsideration or re-determination of the allegations of professional misconduct that were before the Tribunal." The learned judge then continued with the appeal by way of rehearing, without taking the fresh evidence into account, and eventually dismissed the appeal, determining that he should accept the Tribunal's assessment of the credibility of both the patient and the appellant, and therefore, its findings as to professional misconduct.

Grounds 1A, 1B, 1 and 2 of the appeal to this Court challenge the application of the Wollongong Corporation test to the fresh evidence which the appellant wanted the learned judge to receive and take into account on the appeal by way of rehearing.

I make four observations concerning the Wollongong Corporation test. The first is that it was not prescribed for an appeal by way of rehearing, in which the rehearing is carried out by the appellate court. It was intended as a test on a motion for a new trial of an action. The original trial was conducted before a jury, and the jury gave no reasons for its verdict in what was an action for damages for personal injuries. To regard Wollongong Corporation as controlling the discretion to admit evidence in a statutory appeal by way of rehearing may be erroneous. CDJ v VAJ (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ at 198.

The second observation I make is that in the passage from the judgment of Dixon CJ in Wollongong Corporation that I cited earlier, his Honour said that fresh evidence "could rarely, if ever, be a ground for a new trial" unless the conditions to which he then referred were fulfilled. "The words 'rarely, if ever' in the above passage leave open the possibility of exceptional circumstances justifying a departure from the general rule even in the class of case to which the general rule is directed." Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140. The High Court found it unnecessary to pursue that aspect.

The third observation I make comes from what the High Court next said in Commonwealth Bank of Australia v Quade, although once again, it found it unnecessary to determine the matter: "Nor is it necessary to consider whether the somewhat obscure qualification expressed by Dixon CJ in the words 'or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary' represents other than an illusory relaxation of the primary test (ie 'reasonably clear that ... an opposite result would have been produced')." It suggests that a test of reasonableness may remain for some cases, depending on the degree of likelihood that at a new trial, the fresh evidence may bring about a reversal of the outcome of the case. What may be reasonable may well depend on the nature of the case.

That observation leads me to my fourth, which concerns the nature of the proceedings. In Wollongong Corporation the original proceeding was an action against the occupier of premises for damages for personal injuries suffered by the plaintiff when visiting the premises. One of the justifications for a strict test to be applied when considering whether to order a new trial in civil proceedings because of fresh evidence is the need for finality. It was expressed by Jordan CJ in R v McDermott(No 1) (supra) at 381 – 382 as follows:

"A civil court deals with cases in which a dispute concerning civil rights is thrashed out by contesting parties, ordinarily with legal assistance. The function of the Court is ... to see that the contest is carried on with due decorum and in proper legal form ¾ and then to decide, or assist in deciding, the matter in dispute. When once a decision has been given, it is of the highest importance that it should not be disturbed except for some reason of great weight. 'No element in the administration of justice is so destructive of its efficiency as uncertainty; and no grievance more sorely felt by suitors than that which snatches success away at the moment of its accomplishment, and sets all abroad and in doubt again after one complete hearing and decision. Nothing shakes so much that confidence in the law which it is the first duty of all tribunals to uphold': Scott v Scott (1863) 3 Sw & Tr 319 at 322. ... 'It has never been the habit in Westminster Hall to grant new trials on the simple ground that the party could make the same case stronger by corroborating testimony (even though newly discovered) if another trial were allowed. And if it were otherwise, there are few cases that would not be tried a second time': Scott v Scott (1863) 3 Sw & Tr 319 at 326.
In criminal matters, where the life or liberty of the subject is at stake, the position is somewhat different. By virtue of s6 of the Criminal Appeal Act of 1912, the duty of the Court on any appeal against a conviction is to allow it if of opinion that there was a miscarriage of justice, and in any other case to dismiss it. Criminal justice is based on the fundamental principle that no one shall be convicted of a criminal offence unless the tribunal is not only satisfied, but satisfied beyond all reasonable doubt, that he is guilty."

In that passage, Jordan CJ was referring to the dictates of justice that require, so far as it may reasonably be achieved, finality to litigation between contesting parties in civil proceedings. Although it may well be correct to classify the disciplinary proceedings concerning the appellant as civil in nature and not criminal, there are nevertheless significant differences between them and the common form of civil cases. There were no adverse parties before the Tribunal, in the sense of a plaintiff or applicant on the one side and a defendant or respondent on the other side. The patient was not a party to the proceedings. She was not seeking a remedy or relief. There was no prosecutor. In the place of such a role, counsel was appointed to assist the Tribunal in the making of its inquiry. The only person who might be considered a party in any sense was the appellant, although technically it is incorrect to refer to him as a party. Plainly justice for the appellant was required in a context where central to the purpose of the inquiry were the interests of the public.

In some ways, the proceedings were closer to criminal proceedings than civil proceedings. I refer of course to the nature of the allegations that were made against the appellant and the possible consequences for him if they were proved. The allegations were akin to allegations of indecent assault. The possible consequences for him were punitive in nature, for they could lead (inter alia) to his right to practise his profession being taken from him and to him being fined up to $5,000. In all the circumstances, there was a greater need to ensure that he suffered no injustice than would normally be the case with a party to civil proceedings, and a lesser need for finality at his expense.

In the United Kingdom, the rules for the reception of fresh evidence in support of an appeal or an application for a new trial in civil proceedings are not as strict as the Wollongong Corporation test. They were settled by Ladd v Marshall [1954] 3 All ER 745 at 748. Denning LJ said: "In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible." [My italics.] That the fresh evidence would probably have an important influence on the result of the case, although it need not be decisive, is an easier test to satisfy than the test of Wollongong Corporation.

For the Court of Appeal in the United Kingdom and for some courts of appeal in this country, statutes or rules of court include a requirement for the admission of fresh evidence, particularly if it is evidence as to matters which occurred before the date of the trial or hearing, that "special grounds" be shown. The test propounded in Ladd v Marshall has been applied by courts in at least some of those places. See, for example, Mulholland v Mitchell [1971] AC 666 at 674; Skone v Skone [1971] 2 All ER 582 at 586; McCann v Sheppard [1973] 2 All ER 881 at 888; Talbot v Lane (1994) 14 WAR 120 at 154; Australian Democrats WA Division Inc v Australian Democrats Vic Division Inc BC 9805206 at 6 – 8. In the Australian Democrats case Owen J, with whom the other members of the Full Court of the Supreme Court of Western Australia agreed, added at 7: "There is no precise formula as to how the Court should exercise its discretion in deciding whether to admit further evidence on appeal. However it has been said that the exercise should be undertaken with regard to the context in which it arises (including the nature of the litigation) and also the public interest in the finality of litigation; Doherty v Liverpool Hospital (1991) 22 NSWLR 284 at 297."

In the New South Wales Court of Appeal in Akins v National Australia Bank (1994) 34 NSWLR 155, when considering whether "special grounds" had been established for the reception of further evidence after a trial, as required by the Supreme Court Act 1970 (NSW), s75A(8), it was said by Clarke JA, with whom the other members of the court agreed, at 160:

"Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible." [My italics.]

That is a test that is close to the one propounded in the Wollongong Corporation case. In Akins, the fresh evidence it was sought to lead was relevant only to the credit of one of the witnesses. At 161, Clarke JA adopted the statement of principles by Tucker LJ in Braddock v Tillotson's Newspapers Ltd [1950] 1 KB 47 at 53, that included that the reception of such evidence "would, if ever, only be justified where the evidence is of such a nature and the circumstances of the case are such that no reasonable jury could be expected to act upon the evidence of the witness whose character had been called in question". Tucker LJ added that in order to achieve some finality in litigation, and, so far as possible, a reasonable limitation of costs, "it is necessary for the court to impose some limit to the reopening of decided issues, even at the risk that injustice may result, or it may appear that there is a possibility of injustice resulting."

Some jurisdictions have statutory provisions or rules of court that expressly permit the reception of further evidence by an appellate court without any express limitation on the exercise of the discretion to do so. I referred earlier to CDJ v VAJ (1998) 197 CLR 172 in which such a provision was considered by the High Court on appeal from the Family Court of Australia. It was held by the majority in the High Court that the Wollongong Corporation test was not the appropriate one. McHugh, Gummow and Callinan JJ pointed out at 199, that the test was one developed for common law procedures that were interlocutory in nature. At 200, their Honours said: "Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion." Those comments can be extended to a case such as the present, where there were no adverse parties before the Tribunal and where the nature of the inquiry and its possible outcome contrary to the interest of the appellant, had similarities to criminal proceedings. Their Honours continued: "Moreover, even at common law, the grounds for admitting further evidence of matters occurring before judgment were not inflexible. The common law courts have always reserved to themselves an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it."

Similar views were expressed in McCann v Parsons (1954) 93 CLR 418. It was observed by Dixon CJ and Fullagar, Kitto and Taylor JJ at 430 – 431, when considering whether a new trial should have been granted because of fresh evidence: "The grounds upon which the court proceeds in granting the remedy have been settled by practice but they have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end."

On an appeal from an order restraining a minister from treating a person as an unlawful non-citizen, the Full Court of the Federal Court said in Madafferi v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 473 at 479, of the discretionary rule under the Federal Court Act 1976 (Cth), s27, to receive further evidence without any limitation on the power being expressed in the legislation, that it should be demonstrated "that the fresh evidence would not have been available at the initial hearing despite the exercise of reasonable diligence and that if the evidence had been available there was at least a firm chance that the result would have been different." [My italics.]

In light of the authorities to which I have referred, this was not a case for which the Wollongong Corporation test should have been applied to the reception of the fresh evidence. It was not suggested that the learned judge had power to remit the inquiry back to the Tribunal for a new hearing. A less time consuming and less costly process would have been involved if the fresh evidence was received in the course of the appeal by way of rehearing, for consideration along with the evidence that had been received by the Tribunal. In fact, prior to refusing to take the fresh evidence into account, the learned judge received it in affidavit form and most of the deponents gave oral evidence and were cross-examined. Although due regard must be given to the need for finality in litigation, this is not a case in which some other party will have had the fruits of victory or success snatched away by reason of the fresh evidence. See Jordan CJ in R v McDermott(No 1) (supra) at 381 – 382.

Because the effect of the Tribunal's findings were that the appellant had seriously misconducted himself, both professionally and personally, and the orders fined him and deprived him of his right to continue to practise his profession, which he had done for much of his life, it is plain that the need to provide him with justice is a major factor. The public interest in the finality of litigation should have less weight in this case than in the more common forms of civil cases. It is my opinion that the demands of justice required that much of the fresh evidence be received. The general honesty of the patient and the accuracy of her evidence and the history she gave about a number of matters are significantly challenged by the fresh evidence. It suggests that she is not a person whose word can be trusted. Whether she will dispute any of it is not known. For the purposes of the appeal to the learned judge, and to this Court, little more can be said than that it is capable of belief and that, with the benefit of hindsight, it raises a considerable doubt about whether the Tribunal's confidence in her honesty and accuracy and its preference for her credibility, as opposed to the credibility of the appellant, were misplaced. On the face of the fresh evidence, the foundation of many of the Tribunal's findings in favour of her credit has been substantially shaken. There is a firm chance, a significant possibility, that the result of the inquiry would have been reversed if it had been available to the appellant at the time.

It being my conclusion that the application of the Wollongong Corporation test was erroneous, it is unnecessary to consider grounds 3 and 4 of the appeal, which attack the learned judge's application of that test to the circumstances of this case.

Because none of the fresh evidence related directly to the events said to have occurred during the patient's consultations with the appellant, but instead related to her credit, the prospect of it being received in the course of an appeal by way of rehearing raises for consideration whether common law or statutory exclusionary rules might apply to it. At common law, the content of much of the fresh evidence could properly be put to the patient in cross-examination, provided that she is recalled to give evidence before the judge who hears the appeal. However, as a general rule, the common law would prohibit the calling of evidence to rebut a witness's denials. The Evidence Act 2001, ss102 to 108, also limits what may be asked by way of cross-examination relevant to credibility and what may be led to rebut a witness's answers for the purpose of discrediting the witness.

However, the Tribunal was not bound by the rules of evidence and could inform itself on any matter in any way it considered appropriate. The Act, s50(10) and Sch3, cl 3(b)(c). The position will be the same with respect to fresh evidence sought to be called before the judge hearing the appeal from the Tribunal by way of rehearing. The discretion of the judge will not be fettered by the rules of evidence.

It was part of the appellant's case before the Tribunal that the patient may have been suffering from a psychiatric illness or disorder, of which one of the manifestations was either the fabrication or the false imagination of events. He relied on the evidence of the psychologist, Mr Henty, in those regards. However, the difficulty he faced at the hearing before the Tribunal was that he had little evidence that was then available to him upon which the factual basis for finding the existence of such a psychiatric illness or disorder could be established and as a result, the Tribunal found that there was no evidence of it. I commented earlier on the absolute nature of that finding. Much of the fresh evidence will assist the appellant in that regard, at least to some extent. At common law, an exception to the credibility rule is evidence to show that a witness suffers from some disease, defect or abnormality of mind that affects the reliability of the witness's evidence. Toohey v Metropolitan Police Commissioner [1965] AC 595 at 609; Bromley v R (1986) 161 CLR 315 at 322. If incidentally, it merely tends to establish that the patient is a compulsive liar, the evidence may be used for that purpose. I note that in Edwards (1985) 20 A Crim R 463, the Court of Criminal Appeal of Western Australia ordered a new trial because of fresh evidence in the form of medical evidence that impugned the veracity of the principal prosecution witness. I also note that under the Evidence Act, s106(d), such evidence would probably be admissible as evidence that tends to prove that the patient is, or was, unable to be aware of matters to which her evidence relates. R v Rivkin [2004] NSWCCA 7 at [336]; R v Souleyman, unreported, New South Wales Supreme Court Levine J, 5 September 1996.

I note also that at common law and by virtue of the Evidence Act 2001, s106(a), the fresh evidence that the patient had expressed an intention to sue the appellant for damages, if she denies it, would be admissible to show bias.

The appropriate course for this matter is that it be remitted to a judge for hearing as an appeal from the Tribunal by way of rehearing. The patient should be recalled for the purpose of cross-examination about matters arising out of the content of the fresh evidence. If she does not dispute it, that may be all that is needed by way of fresh evidence. However, if she disputes it, then the appellant should be allowed to call much of the fresh evidence. The exercise of the judge's discretion to admit it will depend on the circumstances. However, in light of what is presently known about the case and the fresh evidence, I doubt that evidence to establish that the patient once falsely told her father that her mother had run up a lot of accounts, that she made a fraudulent workers compensation claim, that she untruthfully claimed to have spent hours sitting by her dying father's bedside, that she physically abused her son and that she falsely stated that her sister's husband had been sacked for stealing, would appropriately be received by way of rebuttal of denials. The judge will need to be conscious of the need to limit the issues and to avoid more trials within the trial than justice demands.

At a new hearing of the appeal, the appellant will be in a disadvantageous position compared to the one he would be in if there was a hearing de novo before the Tribunal. That is because of the nature of an appeal by way of rehearing. As was observed by the learned judge, appellate courts exercise restraint in disturbing findings of fact based upon the credibility of witnesses. A significant part of the Tribunal's reasons for preferring the evidence of the patient to that of the appellant, was based on its impressions of their respective demeanours, something that the judge will not have observed, although he may gain some experience of observing the patient when she is cross-examined before him. The judge who hears the appeal will need to be conscious of the limitations that apply to him.

The Tribunal's findings on the evidence before it

Grounds 7 and 8 of the appeal are:

"7His Honour erred, [2004] TASSC 29 at [23]-[48], in dismissing the contentions of the Appellant that the decision of the Tribunal was erroneous.
8His Honour should have found that the decision of the Tribunal was erroneous for the reasons advanced by the Appellant and set out [2004] TASSC 29 at [23]-[48]."

The learned judge carefully considered the reasoning and findings of the Tribunal upon the evidence that was before it. He concluded that he should accept the Tribunal's assessments of the credibility of the patient and the appellant, and therefore its findings as to professional misconduct. Although with respect, I consider that the Tribunal made incorrect assessments of some of the evidence relevant to credit, and I have referred to the evidence in question, I have ultimately come to the same conclusion as his Honour. The impression the two main witnesses made on the Tribunal was central to its conclusions and I am not persuaded of error by the Tribunal to such an extent that the finding of professional misconduct, on the evidence before it, should be reversed.

Conclusion

For the reasons I have expressed, I would allow the appeal, set aside the order dismissing the appeal from the Medical Complaints Tribunal and order that there be a rehearing of the appeal by a different judge.
File No FCA 17/2004

DR NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

REASONS FOR JUDGMENT FULL COURT

SLICER J
12 November 2004

I have had the advantage of reading in draft form the reasons for judgment of Crawford J and agree with his conclusion that the appeal ought be upheld.

His analysis of the method of reasoning employed by the Tribunal in its assessment of accuracy of account and credibility of the respective witnesses demonstrated the dangers of circular reasoning. One problem facing a tribunal in a case such as this is to find a commencing point which is either common ground or clearly established. While accuracy and credibility are linked, it is necessary not to treat them as the one vehicle. Witnesses might be honest, but nevertheless mistaken, or their testimony a product of reconstruction. Employment of perception of demeanour by a specialist tribunal contains its own complexity and dangers (see CDJ v VAJ (1998) 197 CLR 172; Jones v R (1997) 191 CLR 439; M v R (1994) 181 CLR 487; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3, 160 ALR 588).

It is not necessary for the determination of this appeal to resolve the differing approaches taken in cases such as Wollongong Corporation v Cowan (1955) 93 CLR 435; CDJ v VAJ and the English approach in Ladd v Marshall [1954] 3 All ER 745. The circumstances here did not involve the application of the test stated in Wollongong (supra) and even had the more stringent test been applied, given the relevance and cogency of the additional material and the critique of the methodology employed by the Tribunal, it would have permitted a similar outcome.

I would uphold the appeal on the grounds relating to credibility and methodology and grounds 1A, 1B and 1 – 2 of the application of the legal test.

I do not agree with the conclusions reached by the learned President that the only order open to this Court following the upholding of the appeal is remission to a judge of this Court for rehearing. In my opinion, the powers afforded the Full Court by the Supreme Court Civil Procedure Act 1932, ss39 and 47, enable it to order a rehearing of the complaint before the Tribunal. The term "trial" as used in those sections includes hearing (s3(1)). It is not necessary for the disposition of this appeal to consider the approach adopted by Evans J in his reasons for judgment. I agree with the order which he proposes.

I would uphold the appeal, set aside the decision of the Tribunal and order a rehearing before the Tribunal differently constituted.
File No FCA 17/2004

DR NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

REASONS FOR JUDGMENT  FULL COURT
  EVANS J
  12 November 2004

I have had the benefit of reading the reasons for judgment prepared by Crawford J and agree with him that this appeal should succeed. I differ with him in relation to the consequential orders that should be made. In my view, the matter should be remitted for rehearing before the Tribunal, not a judge.

The fresh evidence that goes to the heart of this appeal was considered (but not admitted) by the learned primary judge consequent upon his ruling that the Court had the power to receive fresh evidence. His reasons for so ruling are set out in Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139. The appeal from the Tribunal before the learned primary judge was made pursuant to the Medical Practitioners Registration Act 1996 ("the Act") which at the time relevantly provided that:

"61 (1) A person may appeal to the Supreme Court against any of the following:
…
(h) a decision of the Tribunal under section 52.

62       At the hearing of an appeal, the Supreme Court may –
(a)       confirm the decision of the Council or Tribunal; or
(b)       set aside the decision of the Council or Tribunal; or
(c)       set aside the decision of the Council or Tribunal and substitute such other decision as the Council or Tribunal has jurisdiction to take as the court specifies."

The Act is silent as to the nature of the appeal. The parties before the learned judge agreed that the appeal was one by way of rehearing, in which case the appellate court redetermines the issues raised upon the hearing of the appeal as at the date of the rehearing, relying on the material that was before the Tribunal, subject to the exercise of any power to receive additional evidence. The parties were not in agreement on the Court's power to receive further evidence and as to this power, the learned primary judge, having considered the relevant legislation and a number of authorities, concluded:
"14I think it is clear that, although the Court of Chancery generally did not receive additional evidence upon the hearing of appeals prior to the Judicature Act, there were situations in which it did so. I think it must follow that, on an appeal by way of rehearing in the old technical sense, evidence that was not before the court or tribunal appealed from can and should be received in appropriate situations. Some examples readily spring to mind. It is not uncommon for Australian appellate courts to receive evidence when it is contended that a new trial is warranted because of the discovery of credible fresh evidence that could not, with reasonable diligence, have been discovered before or during a trial. Courts of criminal appeal often receive evidence when a new trial is sought on the ground that a miscarriage of justice resulted from defence counsel's incompetence or blundering. An appeal based on the wrongful rejection of evidence will sometimes require the receipt of the evidence said to have been wrongly rejected. Those are all situations in which a power to receive additional evidence is essential in order for an appeal court to be able to adjudicate upon grounds of appeal that are frequently encountered.
15When Parliament enacted ss61 and 62, it conferred a right of appeal in general terms. There is no reason to think that Parliament intended the grounds upon which appeals could be instituted under s61 to be limited to those that could succeed without the Court receiving additional evidence. I think an appeal based on fresh evidence should be taken to be within the scope of ss61 and 62, that it necessarily follows that the Court must have the power to receive evidence upon the hearing of such an appeal, and that that result is consistent with the appeal being one by way of rehearing in the old technical sense."

This ruling of the learned primary judge has not been challenged on this appeal.

As to the test to be applied when considering to admit fresh evidence, Crawford J has canvassed the different positions taken by appellate courts in criminal cases and appellate courts in civil cases, when considering whether to remit cases back to the court of first instance for a new hearing. I agree with his reasons for concluding that this was not a case in which the Wollongong Corporation's test should have been applied for the reception of the fresh evidence and that much of the fresh evidence should have been admitted as there is a firm chance, a significant possibility, that the result of the enquiry would have been reversed if it had been available to the appellant at the time of the hearing before the Tribunal. That being so, the appeal should be allowed and, in my view, the matter should be remitted to the Tribunal for rehearing. Crawford J proposes remitting the matter to a judge for rehearing on the basis that the patient should be recalled for the purposes of cross-examination about matters arising out of the content of the fresh evidence and, if necessary, the fresh evidence should be called. I do not favour this course. It would involve the judge, in effect, conducting a rehearing de novo of a substantial part of the patient's evidence and put the judge in the difficult position of assessing that evidence against the Tribunal's record of the appellant's evidence. There has been no challenge to the correctness of the learned primary judge's decision that the appeal is not a rehearing de novo, but an appeal by way of a rehearing of the material that was before the Tribunal, subject to the exercise of any power to receive additional evidence.

The power of the learned primary judge to remit the matter to the Tribunal for rehearing was not canvassed before him or on this appeal. It appears to have been assumed that the court had no such power. The learned primary judge said in Fernando (No 2), par32, that he could not remit the matter for rehearing. Crawford J has expressed a similar view. I do not agree. The jurisdiction of the Court in relation to the appeal from the Tribunal is governed by the Act, the Supreme Court Civil Procedure Act 1932 and the Supreme Court Rules 2000. The applicable provisions of the Act are set out in the second paragraph of my judgment. The relevant provision in the Supreme Court Civil Procedure Act is s6(3), which provides:

"(3) Any jurisdiction, whether original or appellate, which is conferred on or vested in the Court, or any one or more of the judges thereof sitting in court or chambers, or elsewhere when acting as judges, or a judge by, under, or by virtue of any statute passed after the commencement of this Act, shall (except as otherwise provided by any such statute) be exercised (so far as regards procedure and practice) in the manner provided by this Act and the Rules of Court; or if no provision, or no appropriate provision, as to the exercise of any such jurisdiction is contained in this Act or in the Rules of Court, then such jurisdiction shall be exercised in such form, mode, and manner as the Court or a judge may direct."

The Supreme Court Rules, rr701 – 709 apply to appeals from statutory tribunals. As to the power of the Court to remit a matter to a tribunal for rehearing, the following rules are applicable:
"704 Rules 689 to 694, inclusive, apply to any appeal the subject of this Division as if –
(a) the tribunal which made the determination were an inferior court; and
(b) the proceedings in which the determination was made were a trial; and
(c) the determination were a judgment."

"709 (1) The Court or a judge has all the powers conferred on the Court by rule 693 as if –
(a) the tribunal which made the determination were an inferior court; and
(b) the proceedings in which the determination was made were a trial; and
(c) the determination were a judgment."

"693 (1) The Court or a judge hearing an appeal has all the powers conferred on the Full Court by rule 672.
…
(4) Any new trial ordered by the Court or judge may be ordered to be heard before a judge of the Court or in the inferior court."

"672 …
(9) The Full Court may order a new trial on any question without interfering with the finding or decision on any other question.
(10) If the Full Court orders a new trial, it may, by that order, give all necessary directions for the further proceedings in the case."

The process of establishing how the jurisdiction of the Court in relation to appeals from tribunals may be exercised is made difficult by the manner in which the rules are drafted, that is, the adoption for the purposes of appeals to tribunals of rules that govern appeals from inferior courts, which rules, in turn, adopt rules that govern appeals to the Full Court. Whilst this process is somewhat convoluted, in my respectful view, the clear effect of the rules is that the Court is empowered to order a rehearing before a tribunal of all or part of the matter that is the subject of appeal. Of course, the statute conferring the right of appeal in relation to a particular tribunal could provide otherwise, and in that event, consistent with the Supreme Court Civil Procedure Act, s6(3), the Court would not have the power. The Act contains no provision depriving the Court of the power to order a rehearing before the Tribunal. The absence of any reference in the Act to a power in the Court to remit a matter back to the Tribunal for determination, in my respectful view, provides no basis for inferring that the Court is deprived of this long-standing power. The Rules of the Supreme Court 1965 that were in force in 1996 when the Act was enacted, contained provisions to the same effect as those set out above; see O76, rr68, 54(1) and 36A(2) and (3). Pursuant to r68, r54(1) applied to appeals from tribunals so that: "The Court or a judge, on the hearing of an appeal from (a tribunal), shall have power … to order a new trial or rehearing of the cause or matter, either before a judge of the Supreme Court, or in the (tribunal), and to make all such orders and give all such directions for the purposes of, or with respect to, the new trial or rehearing as may be necessary, or the Court or judge may think proper…". Insofar as r54 provided that "the court … shall have power … to order a new trial or rehearing …", it seems to have been assumed that such a power would not be contained in the legislation conferring a right of appeal from a tribunal. The making of such an order is incidental to the Court's exercise of its jurisdiction to determine appeals from tribunals and it is the sort of matter that one might expect to be dealt with in the Rules rather than the statute conferring the right of appeal. This incidental power having been provided for in the Rules, there was no reason to expressly advert to it in the Act unless it had been intended to deprive the Court of the power.

I would allow the appeal, set aside the order dismissing the appeal from the Tribunal, set aside the decision of the Tribunal, and, subject to hearing the parties, order a rehearing before the Tribunal constituted by different members.