Health Care Complaints Commission v Karalasingham - [2007] NSWCA 267

NEW SOUTH WALES COURT OF APPEAL

CITATION: HEALTH CARE COMPLAINTS COMMISSION v KARALASINGHAM [2007] NSWCA 267
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40218/07

HEARING DATE(S): 20 September 2007

JUDGMENT DATE: 2 October 2007

PARTIES:
Health Care Complaints Commission – Appellant
Rupasenan Karalasingham –Respondent

JUDGMENT OF: Giles JA Basten JA Bergin J

LOWER COURT JURISDICTION: Medical Tribunal of NSW

LOWER COURT FILE NUMBER(S): 40221/06

LOWER COURT JUDICIAL OFFICER: Keleman J – Deputy Chairperson; Associate Professor G Frost; Dr J Mair; Dr J Kendrick

LOWER COURT DATE OF DECISION: 16 March 2007

COUNSEL:
Ms C Adamson SC/Ms G Furness - Appellant
Mr M Lynch - First Respondent

SOLICITORS:
Health Care Complaints Commission – Appellant
Avant Insurance Limited - Respondent

CATCHWORDS:
APPEAL – right of appeal from Medical Tribunal to Court of Appeal – [Medical Practice Act] 1992 (NSW) s 90 and s 154 – meaning of error “with respect to a point of law” – power of Court to review decision of Tribunal in relation to whether practitioner is not of good character – basis on which Court may interfere with exercise of disciplinary power by Tribunal[ ][ ]MEDICAL PROFESSION – professional misconduct – unsatisfactory professional conduct – “not of good character” – general practitioner providing false medical certificates – disciplinary orders of Medical Tribunal – whether deregistration appropriate – [Medical Practice Act] 1992 (NSW), ss 36(a) and (m), 37, 39(b) and (e)[ ][ ]WORDS & PHRASES – “with respect to a point of law” – “not of good character”

LEGISLATION CITED:
[Commercial Arbitration Act] 1984 (NSW), s 38
[Commercial Tribunal Act] 1984 (NSW), s 20
[Consumer Trader and Tenancy Tribunal Act] 2001 (NSW), s67
[Health Insurance Act] 1973 (Cth), s 128B
[Interpretation Act] 1987 (NSW), s 33
[Legal Profession Act] 1987 (NSW), s 208L
[Medical Practice Act] 1992 (NSW), ss 36, 37, 51, 60, 61, 62, 64, 90, 154
[Medical Practitioners Act] 1938 (NSW), s 32U
[Supreme Court Act] 1970 (NSW), s 101A
[Workers’ Compensation Act] 1926 (NSW), s 37

CASES CITED:
[Abalos v Australian Postal Commission] (1990) 171 CLR 167
[Attorney-General for the State of New South Wales v X] (2000) 49 NSWLR 653
[Australian Gas Light Co v Valuer-General] (1940) 40 SR(NSW) 126
[Azzopardi v Tasman UEB Industries Ltd] (1985) 4 NSWLR 137
[Bannister v Walton] (1993) 30 NSWLR 699
[Canham v Australian Guarantee Corporation Ltd] (1990) ASC 55-984
[Canwest Global Communications Corporation v Australian Broadcasting Authority] (1998) 82 FCR 46
[Collector of Customs v Pozzolanic Enterprises Pty Ltd] (1993) 43 FCR 280
[Collector of Customs v Agfa-Gevaert Ltd] (1996) 186 CLR 389
[Esanda Finance Corporation Ltd v Murphy] (1989) ASC 55-703
[Ex parte Tziniolis; Re The Medical Practitioners Act] (1967) 84 WN (Pt 2) (NSW) 275
[Fox v Percy] (2003) 214 CLR 118
[Gayed v Walton] (unrep, NSWCA, 31 July 1997)
[Grygiel v Baine] [2005] NSWCA 218
[House v The King] (1936) 55 CLR 499
[Industry Research and Development Board v [Bridgestone Australia Ltd] (2001) 109 FCR 564
[Kalokerinos v HIA Insurance Services Pty Ltd] [2004] NSWCA 312
[Lindsay v Health Care Complaints Commission] [2005] NSWCA 356
[McBride v Walton] (unrep, NSWCA, 15 July 1994)
[Minister for Immigration and Multicultural Affairs v Epeabaka] (1999) 84 FCR 411
[Prakash v Health Care Complaints Commission] [2006] NSWCA 153
[R v Brown] [1996] AC 543Re B [1981] 2 NSWLR 372
[S v Crimes Compensation Tribunal] [1998] 1 VR 83
[Sabag v Health Care Complaints Commission] [2001] NSWCA 411
[Sullivan v Waltons Credit Ltd] (1990) ASC 55-023
[Vetter v Lake Macquarie City Council] (2001) 202 CLR 439
[Walsh v Law Society of New South Wales] (1999) 198 CLR 73
[Wentworth v Rogers] [2006] NSWCA 145; (2006) 66 NSWLR 474
[Williams v Bill Williams Pty Ltd] [1971] 1 NSWLR 547
[Ziems v The Prothonotary of the Supreme Court of New South Wales] (1957) 97 CLR 279

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40218/07
Medical Tribunal 40221/06
GILES JA
BASTEN JA
BERGIN J
2 October 2007

HEALTH CARE COMPLAINTS COMMISSION v KARALASINGHAM

Headnote

The Respondent, Dr Karalasingham, is a general practitioner who provided false medical certificates in relation to three different people between September 2004 and May 2005. In each case, the person seeking the certificate was a non-citizen holding a visa to be in Australia for the purposes of study. The certificates were sought in order to excuse the students from failing to maintain the requisite class attendance rate which was a condition of the visa.

Investigations by the Department of Immigration and Multicultural and Indigenous Affairs in relation to each of the individuals to whom the Respondent provided certificates led to complaints against the Respondent being lodged with the Health Care Complaints Commission (‘the Commission’), which referred two complaints to the Medical Tribunal pursuant to s 51(1)(a) of the Medical Practice Act 1992 (NSW). The first complaint alleged unsatisfactory professional conduct or professional misconduct by the Respondent; the second complaint alleged that the Respondent was “not of good character”.

On 16 March 2007, the Tribunal found the Respondent guilty of professional misconduct, but dismissed the complaint that he was not of good character. The Respondent was fined and his registration made subject to various conditions. The Commission brought the present appeal from the Tribunal’s decision, seeking a finding that the Respondent was not of good character an order that he be deregistered, pursuant to s 64(1) of the Medical Practice Act 1992 (NSW).

The Court held, dismissing the appeal:
(per Basten JA, Giles JA and Bergin J agreeing)

An appeal “with respect to a point of law” pursuant to s 90(1)(a) of the Medical Practice Act 1992 (NSW) does not require that a matter of law be separately identified and decided by the Tribunal. It is sufficient that the Tribunal needs to identify and apply a principle in reaching its decision and, in doing so makes an error with respect to a point of law: [14].

Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312; Grygiel v Baine [2005] NSWCA 218; Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474; Esanda Finance Corporation Ltd v Murphy (1989) ASC ¶55-703; Canham v Australian Guarantee Corporation Ltd (1990) ASC ¶55-984; Sullivan v Waltons Credit Ltd (1990) ASC ¶55-023 referred to.

If the facts inferred from the evidence are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law: [18].

Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126; Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 applied.

S v Crimes Compensation Tribunal [1998] 1 VR 83 considered

The nature of the appeal provided by s90(1)(b) is not restricted to errors of law. In exercising its power to review an order of the Tribunal, the Court is entitled to examine the factual conclusions reached by the Tribunal in its determination of the order, but not so as to undermine any factual finding on which the conclusion with respect to the complaint was based: [23].

Bannister v Walton (1993) 30 NSWLR 699 considered.
Gayed v Walton (unrep, NSWCA, 31 July 1997); Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [6] and Lindsay v Health Care Complaints Commission [2005] NSWCA 356 referred to.

(per Basten JA, Bergin J agreeing, Giles JA not deciding)

The words “not of good character” do not bear some special or technical meaning but are used in their ordinary meaning. Although determining the ordinary meaning of a word has traditionally been identified as a question of fact, there is no clear distinction between determining the ordinary meaning of a word and the construction of a term whose meaning is established. The construction of a statutory provision will usually involve a consideration of words in their context and the adoption of a construction that will promote the purpose underlying the statute, which will usually involve a question of law: [45]-[46].

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; R v Brown [1996] AC 543 referred to.

(per Basten JA, Giles JA and Bergin J agreeing)

In order to establish error on the part of the Medical Tribunal, it is necessary to establish that the Tribunal misunderstood the nature of the task which it was undertaking. The mere fact that it was open to the Tribunal to reach a different conclusion in a matter of evaluative judgment is insufficient to demonstrate error of law: [55].

Examples of dishonesty will differ in their perceived seriousness and will not necessarily require the deregistration of the practitioner: [69]-[73]. No relevant error was demonstrated in the manner in which the Tribunal assessed the circumstances which led to the making of the disciplinary order: [77].

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40218/07
Medical Tribunal 40221/06
GILES JA
BASTEN JA
BERGIN J
2 October 2007

HEALTH CARE COMPLAINTS COMMISSION v KARALASINGHAM

Judgment

GILES JA: With the qualification which follows, I agree with the reasons of Basten JA and with the orders his Honour proposes. Since on the “not of good character” question the Commission did not contend that the Tribunal had misstated the relevant legal principles, but rather that it had erred in law in their application, I prefer not to join in his Honour’s discussion of the legal principles in [45]-[50]; that can await an occasion when decision is necessary.
BASTEN JA: On 3 September 2004 Dr Karalasingham (the Respondent) saw a young man seeking a medical certificate that he had been unfit for work or university study from 20 April until 25 August 2004. The young man was somewhat euphemistically described in the proceedings as “Patient A”; the appellation “patient” seemed inappropriate. The Respondent did not question him about his state of health, nor carry out any examination. The failure to examine was not surprising, as Patient A did not purport to be ill at that time. In order to justify a medical certificate for the earlier period of four months, the Respondent falsely represented that he had seen Patient A on 20 April and 20 August 2004.
Similar certificates were given in relation to two further people identified as “Patient B” and “Patient C”. The Respondent saw Patient B on 28 January 2005 and again on 16 March 2005. He saw Patient C only on 18 May 2005. (The anonymity of these individuals was protected in the Tribunal and by an order in this Court that their identity not be disclosed in a publication.)
In each case the person seeking the certificate was a non-citizen holding a visa to be in Australia for the purposes of study. In each case, it was a condition of the visa that the student maintain an 80% attendance record and each sought a certificate from the Respondent to justify periods of non-attendance, absent which their visas would be, or would remain, revoked, thus rendering their continued presence in Australia unlawful.
The period covered by Patient A’s certificate apparently raised concern within the Department of Immigration and Multicultural and Indigenous Affairs, and little more than a month after its preparation, namely on 12 October 2004, an immigration officer spoke to the Respondent in relation to it. Investigations by the Department in relation to each of the three individuals for whom the Respondent provided certificates led to complaints being made under the Medical Practice Act 1992 (NSW) (“the Act”) in relation to the conduct of the Respondent. These complaints were investigated by the Health Care Complaints Commission (“the Commission”) which, on 27 July 2006, referred two complaints to the Medical Tribunal (“the Tribunal”) pursuant to s 51(1)(a) of the Act.
The first complaint alleged unsatisfactory professional conduct or professional misconduct on the part of the Respondent and particularised specific steps taken by him in relation to Patient A, Patient B and Patient C. The second complaint, based on precisely the same particulars, alleged that the Respondent was “not of good character”.
Before the Tribunal, the Respondent admitted the factual matters alleged in the complaints and accepted that he had been guilty of professional misconduct. He did not, however, admit that he was “not of good character” within the meaning of that phrase in s 36(e) of the Act.
On 16 March 2007 the Tribunal, constituted by Keleman DCJ, Associate Professor Frost and Doctors Mair and Kendrick found the Respondent guilty of professional misconduct, but dismissed the second complaint that he was not of good character. Pursuant to ss 61 and 62 of the Act, the Respondent was reprimanded, fined $20,000 and his registration was made subject to various conditions which included the completion of an ethics course conducted at Monash University and a requirement to have a professional mentor for a period of 24 months.
The appeal brought by the Commission seeks a finding that the Respondent was not of good character and an order that he be deregistered, pursuant to s 64(1) of the Act.
In order to assess the merit of these challenges, it is necessary to provide some further detail of the Respondent’s misconduct. However, before doing so, it is convenient to identify the limitations and constraints placed on the right of appeal from the Tribunal to this Court.

Nature of appeal

The right of appeal from a decision of the Tribunal is conferred by s 90 of the Act, which relevantly provides:
“90 Appeal against Tribunal’s decisions and actions
(1)A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against:
(a)a decision of the Tribunal with respect to a point of law, or
(b)the exercise of any power by the Tribunal under Division 4 (Disciplinary powers of Committees and Tribunal) of Part 4.”
This provision raises three questions of relevance to the present appeal, namely:
(a)what is the scope of an appeal against a decision “with respect to a point of law”;
(b)what is the basis upon which this Court may interfere with an exercise of disciplinary power by the Tribunal, and
(c) what is the inter-relationship between (a) and (b)?
For the purposes of the first ground of appeal, the “decision” of the Tribunal, which is subject to appeal, is the finding that “the Tribunal is not satisfied the complainant has proved that the respondent is not of good character” and the consequential order that the second complaint “is dismissed”: Reasons, p 39. On the other hand, the Respondent contended that the relevant decision must be understood in the context of the Act, including s 154, dealing with the proceedings of the Tribunal, which provides:
“154 Decisions of the Tribunal
(1)The decision of the Chairperson or a Deputy Chairperson on any question of law or procedure arising during an inquiry or appeal at which the Chairperson or Deputy Chairperson presides is the decision of the Tribunal for the purposes of the inquiry or appeal.”
No question of law having been identified during the course of the inquiry as a proper matter for decision by the Deputy Chairperson presiding over the Tribunal, it was said that no relevant decision could be identified as open to challenge pursuant to s 90(1)(a).
Although it may be conceded that there is a singular lack of linguistic uniformity between statutes providing rights of appeal restricted in some manner to questions of law, the proposition advanced by the Respondent is not consistent with established principle in relation to provisions of this kind. It is not necessary that a matter of law be separately identified and decided by the Tribunal: it is sufficient that the Tribunal needs to identify and apply a principle in reaching its decision and, in doing so makes an error with respect to a point of law: see, in relation to the Commercial Tribunal Act 1984 (NSW), s 20, Esanda Finance Corporation Ltd v Murphy (1989) ASC ¶55-703 at pp 58,348-349 (David Hunt J); Canham v Australian Guarantee Corporation Ltd (1990) ASC ¶55-984 (Carruthers J); Sullivan v Waltons Credit Ltd (1990) ASC ¶55-023, p 59,233 (Carruthers J); in relation to the Consumer Trader and Tenancy Tribunal Act 2001 (NSW), s67, see Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [42]-[56] (Bryson JA, Santow JA agreeing); Grygiel v Baine [2005] NSWCA 218 at [26]-[29] (my judgment with which Mason P agreed); and in relation to the Legal Profession Act 1987 (NSW), s 208L, see Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 at [189]. In the present case, it was necessary for the Tribunal to determine whether the Respondent was a person who was “not of good character” for the purposes of s 36(e) of the Act. Whether that involved any question of law or merely an evaluative judgment as to whether the conduct proved or admitted fell within the scope of a phrase having no special meaning, is a matter which will be addressed further below: c.f. Canwest Global Communications Corporation v Australian Broadcasting Authority (1998) 82 FCR 46 at 85; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 and Industry Research and Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564 at [49]-[62] (Lindgren J, Mansfield J agreeing).
In Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 at [124], Spigelman CJ (Priestley JA agreeing), after noting that the phrase in consideration in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 137 used the formulation “point of law”, not “error of law”, continued:
“The expression ‘question’ or ‘point’ of law is wider than ‘error of law’.”
The different formulations to which his Honour referred may need to be read in context in order to identify their differential effect. Thus, the provision in issue in Attorney-General (NSW) v X was the power of the Attorney to submit “any question of law arising from or in connection with” contempt proceedings, to the Court of Appeal: Supreme Court Act 1970 (NSW), s 101A(1). The provision in question in Azzopardi was one conferring a right of appeal on a party to proceedings in the Workers Compensation Commission who was “aggrieved by any award, order, ruling, direction or decision of the Commission, in point of law or in relation to the admission or rejection of any evidence”: Workers’ Compensation Act 1926 (NSW), s 37(4)(a) (as in force prior to the Workers’ Compensation (Amendment) Act 1984 (NSW). Other provisions confer a right of appeal “on any question of law arising out of an award”, being the language of the Commercial Arbitration Act 1984 (NSW), s 38(2). In the present case, the right of appeal lay against “a decision of the Tribunal with respect to a point of law”. There may be some ambiguity as to whether it is the appeal or the decision which must be with respect to a point of law: however, to require the identification of a decision with respect to a point of law would so limit the operation of the provision as to render the construction untenable, in the absence of clear authority requiring that approach. As already noted, the authority is to the contrary. Accordingly, it is sufficient if the Appellant can identify a decision of the Tribunal which, if it is not the ultimate decision is material to it, and that the decision was erroneous in point of law.

It will still be necessary to distinguish questions of law from questions of fact. That should be undertaken in the manner addressed by Mason JA (when on this Court) in a passage in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557, quoted with approval in the joint judgment in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [26] to the following effect:
“[I]t may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law.
The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact.”
The use of the word “reasonably” as qualifying open or possible has been criticised as a “distraction”: see Phillips JA in S v Crimes Compensation Tribunal [1998] 1 VR 83 at 90-91, in a passage quoted with approval by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 421-422 and by Spigelman CJ in Attorney-General (NSW) v X at [60]-[61]. The preferable language may be that adopted by Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 at 138:
“[I]f the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law.”
Whatever the precise language used in particular circumstances, it is well understood that the test is intended to be the same. As Phillips JA noted in relation to review of a tribunal decision, “we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily” (at p 91). The same may be said in relation to the characterization of the supposed error. It is according to this test that the Appellant must establish error in the present case.
If the Court were minded to allow the appeal on the first ground, the Commission invited it to make a finding that the Respondent was not of good character and then proceed to make an order that his name be removed from the register. The power to take that step was not in issue, though the necessity to do so was. However, if the Court were not minded to make such a finding, the second and third grounds of appeal challenged the orders made by the Tribunal, based on the finding of professional misconduct. It was accepted that a challenge to those orders required the establishment of error on the part of the Tribunal in relation to the exercise of a discretionary power, in accordance with the principles established in House v The King (1936) 55 CLR 499.
It was in this context that the third issue identified at [12(c)] above gave rise to a potential concern. If the Court were satisfied as to error in the exercise of disciplinary powers, to what extent was the Court bound by findings made by the Tribunal leading to the conclusion that the complaint as to professional misconduct was proved but that relating to lack of good character was not proved? The nature of the issue was highlighted by the fact that, most of the conduct being admitted, the findings as to fact are largely to be inferred from the statement of the evidence and the admissions made by the Respondent in the course of his evidence, as recorded by the Tribunal.
The difficulty is further exacerbated by the nature of the pleading, to which further reference will be made below, and to the statement by the Tribunal that “the particulars of each of the two complaints (which particulars are identical) have been proved”: Reasons at p 31. Ambiguities in the pleading have thus been imported into the findings of the Tribunal.
In terms of principle, however, it has been accepted that the nature of the appeal provided by paragraph (b) of s 90(1) is not restricted to errors of law: see Bannister v Walton (1993) 30 NSWLR 699 at 632D (Mahoney JA); Gayed v Walton (unrep, NSWCA, 31 July 1997), in relation to the Medical Practitioners Act 1938 (NSW), s 32U, and applied in relation to the current legislation in Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [6] and Lindsay v Health Care Complaints Commission [2005] NSWCA 356 at [41] and [42]. In Bannister, it was said that the scope of the second limb of the right of appeal did not “extend to questioning the acceptance by the tribunal of the facts comprising proof of the complaint” (30 NSWLR at 734C, Priestley JA), but that the Court should act on “the basis that the factual findings underlying the ‘decision’ of the tribunal are not open to scrutiny” (30 NSWLR at 735A-B, Clarke JA). Clarke JA also noted:
“It may be, however, that the tribunal may reach conclusions on a number of factual issues which while not strictly relevant to the complaint may be considered to be of importance in determining what is the appropriate order to be made … . In cases where this occurs it would seem to me that this Court would be entitled to examine those conclusions in exercising its power to review the order … .”
Given the limited scope of review in accordance with House v The King principles, it may be that, as a matter of practice, there will only be limited areas in which an appeal will be maintainable in relation to the exercise of the disciplinary powers where no error with respect to a point of law is established for the purposes of the first limb of s 90(1): see generally, Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85]-[92]. Paragraph (a) of s 90(1) is not, it should be noted, limited to decisions on substantive issues: it also applies to errors in making disciplinary orders.

Factual circumstances

The facts relevant to an appeal on a question of law should be derived from the findings made by the Tribunal. Although the Respondent admitted the particulars of the complaints, the Tribunal set out the factual background because, no doubt, it was relevant to the disputed issue as to whether the Respondent was not of good character and as to the appropriate disciplinary order. As the Tribunal noted, the factual circumstances giving rise to the particulars of complaint were “not in dispute” and were “in any event, established to the satisfaction of the Tribunal from the evidence adduced during this inquiry”: Reasons, p 10.
Having set out over some 20 pages the factual circumstances, the Tribunal then expressed satisfaction in regard to the particulars of the complaints. If this Court were restricted to a finding in relation to the particulars set out in the pleading, some difficulties might arise. To understand the findings it is necessary to turn to the pleadings.
The first complaint alleged that the practitioner had been guilty of “unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act”. Because professional misconduct is defined in s 37 of the Act to mean “unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner’s name from the Register”, it would have been desirable to indicate in the pleading whether each of the 11 paragraphs of particulars was said to constitute professional misconduct on its own, or whether some combination of circumstances was necessary to satisfy the higher test.
Secondly, the pleading alleged that the “knowledge, skill or judgment possessed, or care exercised” by the practitioner was unsatisfactory. In some cases, the circumstances which demonstrate unsatisfactory conduct may make it difficult to distinguish between knowledge, skill or judgment, or the care being exercised. This would not seem to be one of those cases and the Tribunal correctly dismissed references to knowledge, skill and care: Reasons at p 39. It accepted that the Respondent had demonstrated a lack of “judgment” in the practice of medicine, which presumably encompassed various aspects of medical ethics, going beyond judgment in diagnosis or treatment. The pleading further suggested as a separate alternative that the Respondent had engaged in “improper or unethical conduct relating to the practice of medicine”, being a separate element of unsatisfactory professional conduct identified in s 36(1)(m). The Tribunal held that the complaint was satisfied either in relation to the lack of “judgment” or in relation to the language of paragraph (m).
The first particular set out in the complaint was in the following terms:
“1.In or around August 2004, the practitioner provided patient A, a non-citizen in Australia on a student visa, with a medical certificate, the contents of which the practitioner knew to be false, namely:
(a)that patient A suffered from stress, depression and asthma from 20 April 2004 until 25 August 2004 and would be unfit for university;
(b)that the practitioner consulted with the patient on 20 April 2004, 20 August 2004 and 3 September 2004.”
In relation to the contents of paragraph (a), it might have been fair to say, as other parts of the pleading did, that he did not or could not know whether the matters referred to were true because he had made no inquiry: to say that he knew them to be false might have involved a different level of misconduct. In relation to paragraph (b), it was true that the patient had not consulted the practitioner on the first two dates, but he had spoken with the practitioner on the third date, in order to obtain the certificate. If the element of falsity was that, on the third date, when it was not alleged that he was ill, there had not been a “consultation” of a medical kind, that kind of falsity might have been separately identified.
In other complaints (particularised in paragraphs 6 and 8 concerning Patient B, though not those relating to Patient C), the complainant identified matters which the Respondent “knew to be false and/or could not have known to be true”. The vagueness and imprecision in this pleading causes some difficulty in knowing precisely what facts the Tribunal found had been established.
There were a number of matters which warranted a finding of professional misconduct. First, there was the chronology of false certificates and the confirmations given of their correctness. The Respondent provided medical certificates to Patient A on 3 September 2004, to Patient B on 25 January 2005 and to Patient C on 18 May 2005. Further, in relation to Patient A, the Respondent confirmed the false information in a telephone call with an immigration officer on 12 October 2004 and by facsimile to the New South Wales Medical Board on 25 May 2005. Included with the facsimile to the Medical Board was a patient history card representing that the Respondent had seen Patient A on six occasions and providing certain details of his illnesses and treatment, including a prescription for Zoloft, an anti-depressant.
In relation to Patient B, in addition to the certificate, there was a letter identifying 15 dates on which it was said that the patient had suffered from asthma. Without nominating those dates as the dates on which Patient B had been seen by the Respondent, he averred that Patient B had “attended my surgery on several occasions in 2004 with acute asthma”. The letter was provided for the purposes of maintaining Patient B’s visa.
In relation to Patient C, the practitioner issued six separate medical certificates relating to different periods between 7 April 2004 and 7 September 2004, referring to various conditions which rendered the patient unfit to attend school. The Respondent also created a false patient history card and issued four invoices for separate consultations which had not occurred, as well as for the attendance on 17 May 2005.
In relation to Patient A, the Respondent did not suggest that he had any knowledge of his medical state at the time of his failure to attend classes, but said that Patient A had begged for a medical certificate to prevent him losing his place at university and his visa and thus wasting the money that his parents had paid for his education. According to his account of this incident, being the first incident complained of, he had told Patient A, as recounted by the Tribunal, “that in Australia, unlike Sri Lanka, you could not produce false medical certificates and he would not do it, as his job would be on the line”: Reasons, p 11. The Tribunal accepted this evidence to reject a claim made by the Respondent in cross-examination “that he did not fully understand the seriousness of what he had done in issuing false medical certificates until shortly after 2 May 2005 when he received the letter from the Medical Board”: Reasons, p 25. Rather, the Tribunal was satisfied “that the respondent fully understood the implications of writing false medical certificates from the time he was first asked by patient A to provide a false medical certificate”: Reasons, p 26.
On 4 April 2005 the Commission wrote to the Respondent informing him of a complaint in relation to the medical certificate written for Patient A. On 13 April 2005 Patient B attended the Respondent’s surgery for the third time, to warn him that an immigration officer might ring him to verify the dates of consultation; Patient B provided him with the dates which needed to be covered, which the Respondent used to prepare a false patient record card.
A separate matter of aggravation was that whilst he claimed to have acted with compassion, he charged for his services, although apparently no more than the amount which he understood the students could recover from Medicare. However, in relation to Patient C, whom he saw on only one occasion, he charged for four consultations which did not occur.
Another aggravating circumstances was that, although in relation to Patients B and C he said he took some brief history of medical complaints, with respect to Patient A he did not even trouble to do that before providing the certificate requested.
Finally, the Respondent provided a certificate for Patient C, whom he saw for the first time on 18 May 2005, after he had received notice of the complaint in relation to Patient A from the Commission, a letter from the New South Wales Medical Board in relation to Patient A and a warning from Patient B that an immigration officer might require him to verify the dates of the consultation. His conduct in providing assistance to Patient C in those circumstances suggested a deliberate breach of medical ethics and indeed of basic principles of honesty in circumstances where he was on notice that such conduct was treated as a potential disciplinary matter. His evidence that he panicked in producing confirmation and further false documentary records in relation to Patients A and B did not explain his willingness to act in relation to Patient C.
Although the Commission complained that the Tribunal had not appreciated the true seriousness of the conduct, it did make two findings which were adverse to the Respondent in significant respects. First, as already noted, it dismissed his suggestion that he did not understand the seriousness of the misconduct prior to 2 May 2005. Secondly, the Tribunal held (Reasons, p 27):
“The respondent in evidence, despite his evidence to the contrary, did not appear to have full insight into all the implications of writing false medical certificates as demonstrated by his evidence that if he had not backdated the six medical certificates for patient C, but had written the date of consultation, namely 18 May 2005, then there would not have been a problem.”
The Tribunal also noted his asserted practice of no longer seeing overseas students, except if they were from Sri Lanka and could not speak English and required clinical care: Reasons, p 26. The Tribunal considered that “such a self-imposed prohibition by the respondent on seeing overseas students, who may require genuine clinical care, reflects a degree of overreaction and professional immaturity on the part of the respondent”.
The Commission also complained that insufficient weight was given to the fact that the Respondent had ignored several published statements in a newsletter put out by the Medical Board in relation to the circumstances in which sickness certificates could be issued and the principles to be followed in issuing them. The first such report appeared in a newsletter in August 1995, and might, nine years later, have slipped the mind even of a diligent reader. The second statement noted disciplinary action that had been taken in relation to a false medical certificate and was published in 1999. In that case, the practitioner concerned was apparently counselled by the Board.
Of greater importance, was a publication of August 2004 headed “Crook Sickness Certificates” which, had it been read, must have drawn the Respondent’s attention to improper practices which had come to the attention of the Medical Board and which demonstrated that established principles were being breached. However, the Respondent said he did not read, at that time, the newsletters issued by the Medical Board and, to the extent that it was relevant, his evidence in that respect appears to have been accepted.

Character evidence

In addition to hearing from the Respondent, which permitted the Tribunal an opportunity to make some assessment of his character, the Tribunal relied on five statements obtained from experienced and reputable medical practitioners, who were not so much his peers in general practice as specialists and consultants who had had dealings with him, mainly, but not entirely, on referral of patients. A sixth, Dr Jonathon Marks, was not referred to by the Tribunal in its summary of the evidence but his statement was similarly supportive of the character and reputation of the Respondent. Each of the character witnesses was provided with a copy of the complaint made against the Respondent and several expressed a view as to the Respondent’s response to the complaint, based on discussions each had had with him. None was required for cross-examination.

“Not of good character”: legal principles

In order to satisfy the Tribunal that the second complaint was made out, it was necessary for the Commission to demonstrate that the Respondent was “not of good character” at the time of the hearing, for the purposes of s 39(e) of the Act. The concept of “good character”, though given statutory recognition, is not one which bears some special or technical meaning: rather, the words are used in their ordinary meaning. Such a meaning has traditionally been identified as a question of fact, not law: see, eg, Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, setting out five general propositions identified by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. However, the joint judgment in Agfa-Gevaert noted that an artificial, if not illusory, distinction was sought to be drawn between determining the ordinary meaning of a word and the effect or construction of a term whose meaning has been established, the former being a question of fact, the latter a question of law. Their Honours stated at p 397:
“If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law.”
Statutory language may involve a composite phrase of which individual words have an ordinary meaning. However, as noted by Lord Hoffman in R v Brown [1996] AC 543 at 561, in a passage cited with approval in Agfa-Gevaert (at p 397), it is fallacious to think that meaning is to be determined by taking the individual components of a sentence or phrase and identifying separately the ordinary meaning of each. Once it is accepted that construction of a statutory provision will usually involve a consideration of words in their context, and that this will involve a question of law, it can readily be seen that most questions of construction will involve questions of law. That approach gains support from the obligation imposed by s 33 of the Interpretation Act 1987 (NSW) (which has its equivalents in most jurisdictions) to adopt a construction that will promote the purpose or object underlying an Act or statutory rule. The identification of that purpose or object is itself likely to involve a question of law. Accordingly, it may be accepted for present purposes that a misapprehension on the part of the Tribunal as to the scope and operation of the phrase “not of good character” will involve an error in point of law.

In relation to membership of a profession, it is necessary to consider aspects of character which are relevant to the exercise of professional functions. Thus, for a barrister, a person with high standards of intellectual honesty and general integrity may not be of good character if he or she is found to be willing to mislead authority in pursuit of what is perceived to be a higher cause: see, eg, Re B [1981] 2 NSWLR 372 at 394-395 (Moffitt P). Further, as noted by Walsh JA in Ex parte Tziniolis; Re The Medical Practitioners Act (1967) 84 WN (Pt 2) (NSW) 275 at 277:
“I think, further, that we are entitled to inquire into what may be described as personal misconduct, as distinct from professional misconduct, in determining in this case whether or not the applicant is a man of good character, whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on the question whether or not it is shown that an applicant for registration as a medical practitioner is a person of good character.”
In Tziniolis, where the Court was considering a question of “good character” under the Medical Practitioner’s Act 1938 (NSW) reference was also made to various passages in the judgments in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279. Mr Ziems was disbarred as a result of a criminal conviction for manslaughter when he drove a car into a motorcycle and killed the rider. The question was whether he was “fit” to remain a legal practitioner: Fullagar J, quoting with approval the remarks of Jordan CJ in the Court below at 289, and noting the view that “the personal and professional sides of life cannot be dissociated” stated (p 290):
“If this is read literally, it goes, in my opinion, much too far. Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister: see, eg, Inre Davis (1947) 75 CLR 409. But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man’s fitness to practise than the former.”
The reference by Walsh JA in Tziniolis to conduct deserving of disapproval which does not spell unfitness for professional registration reflects a comment to similar effect made by Kitto J in Ziems at p 298.
The purpose of referring to these passages is not to suggest that the conduct of the Respondent in the present case was not professional misconduct, in the sense that it was misconduct which occurred in the course of his medical practice, but rather to show that the proper construction of the phrase “not of good character” may be seen to involve analysis which may, in a particular case, give rise to a question of law.
In the present case, the Commission did not ultimately contend that the Tribunal misstated the relevant legal principles. Rather it suggested that the principles were correctly stated but not properly applied. Thus the relevant principle was accepted, both by the Tribunal and by the Commission, to be that derived from McBride v Walton (unrep, NSWCA, 15 July 1994) to the following effect:
“To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine, one must consider:
(a)whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;
(b)the intrinsic seriousness of the misconduct qua fitness to practise medicine;
(c)whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner’s normal qualities of character;
(d)the motivation which may have given rise to the proven episode of misconduct;
(e)the underlying qualities of character shown by previous and other misconduct; and
(f)whether the practitioner’s conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.”
The Tribunal in the present case applied those principles and assessed each of the six factors separately. In considering the first factor, the Tribunal found that “the cumulative particularised misconduct is … more than errors of judgment … [but] falls short of demonstrating a defect of character”. In relation to the third factor, the Tribunal stated (Reasons, p 38):
“While the misconduct particularised occurred over a period of some 9 months, in the absence of evidence of other such misconduct, particularly having regard to the size of the Respondent’s practice, the Tribunal is satisfied that the misconduct can properly be considered in context as an isolated episode that is uncharacteristic of the respondent’s normal qualities of character.”
The failure correctly to apply these findings, the Commission argued, revealed error. The Tribunal correctly held that the conduct could not be dismissed as mere errors of judgment. However, the Commission submitted that it incorrectly described the conduct as involving “an isolated episode”. This correct finding and the erroneous finding, once corrected, demonstrated that it was not reasonably open to the Tribunal to find that the Respondent was otherwise than “not of good character”.
This approach, however, cannot be accepted. First, the statement of principle, involving six factors was not laid down by this Court in McBride v Walton. Rather, it was the approach adopted by the Tribunal in that case which was held by both Handley JA and Powell JA not to be vitiated by any legal error. More importantly, the majority judgments gave no support for the conclusion that the approach adopted by the Tribunal was to be substituted for the language of the statute. Properly understood, it provides guidance by way of a checklist of considerations, which may be of varying relevance depending on the circumstances of the case and which may not be comprehensive. It is not to be treated as if expressed in the statute. Thus with respect to the third factor, an episode may well involve a sequence of events and not a single event. To describe an episode as “isolated” does not mean that it has to be one or a small number of events (although that might be satisfied in the present case), nor does it say anything specific about the time period. It is merely a way of asking whether particular conduct should be seen as correctly revealing an underlying defect of character, or as aberrant behaviour. Similarly, the third factor sought no more than to judge the particular aspects of misconduct against the background of the practitioner’s life and practice, so as to put the misconduct in context.
What must be demonstrated by reference to the reasons of the Tribunal is that it misunderstood the nature of the task on which it was embarked. The mere fact that others might make a different factual finding, or describe particular conduct with different epithets is insufficient to demonstrate error of law. However, the Commission’s argument rises no higher in the present case. It is a disguised invitation to review an evaluative judgment undertaken by the Tribunal as to the seriousness of the misconduct and the inferences which should be drawn from it in relation to the Respondent’s character. It is an invitation which must be declined. The first ground of appeal should be rejected.

Challenge to exercise of disciplinary powers

The second limb of the appeal was that, whether or not the Respondent was not of good character, the appropriate disciplinary order was to remove his name from the register of medical practitioners.
The basis for the challenge to the disciplinary orders is to be found in the cross-examination of the Respondent before the Tribunal and the Tribunal’s assessment of his conduct and character. The cross-examination had two complementary limbs. The first sought to undermine the Respondent’s evidence that he acted out of compassion for students whose studies had been disrupted by civil war, similar to his own experiences in Sri Lanka, and who could not afford medical treatment for their illnesses. The second limb was based on the premise that he was indifferent to the purpose and significance of the rules he had breached and could not, therefore, be trusted to behave differently in the future. This was said to be demonstrated by a series of circumstances: first, that he had given false medical certificates to Patient C after he had been made aware that his conduct was under investigation; secondly, that he had admitted his misconduct only in part, when confronted with the complaints as particularised and, thirdly, that he had failed to reveal some details of his misconduct until the hearing before the Tribunal. A further circumstance in relation to Patient C was that, although he only saw her once, he charged $125 and issued five invoices, as for five separate consultations. The complaint as originally laid had identified only four separate consultations rather than five: it was the fifth which was alleged to have been admitted only at the hearing.
There are three difficulties with the challenge so far as it is based on the incompleteness of and delay in making the admissions to the matters raised in the complaints. First, the original notice of complaint dated 27 July 2006 alleged that the Respondent knew the contents of each of the medical certificates to be false. When, in a statement dated 9 February 2007, responding to the particulars of complaint, the Respondent indicated that he had relied upon a history provided by Patient B, the complaint was amended to one in which the contents of the certificates were either known to be false or could not have been known to be true, or, curiously, both. The Respondent admitted not taking a history from Patient A, but did state that he relied upon information as to illness provided by Patient C. The complaint in relation to Patient C nevertheless contained allegations that the practitioner knew the contents of the certificates to be false and he did not, in his evidence before the Tribunal, depart from his admissions. Nevertheless, the distinction was one of importance and was addressed by him under cross-examination, as further discussed below in relation to the relevant ethical standards.
The second difficulty concerned the challenge that the admissions were incomplete, or slow in coming. There are two elements to that challenge. The first is that the Respondent did not, when questioned as to his conduct and with knowledge that it was subject to investigation by authorities, make a full disclosure, but rather created false documents and denied the facts, in an attempt to cover up his improper conduct. The second aspect arose from his response to the complaint. It is true that his first response was not an admission of all matters contained in the complaint. In some respects, he noted reliance upon a history given by Patient B and denied that he knew that the history was false. That led to the amendment of the complaint to omit some particulars and to qualify others in the manner indicated above. It was also true that, in his second statement, in response to the complaint, he noted that he had issued four false invoices in relation to Patient C, whereas in fact there had been five if one included the date on which he saw her in response to her request for medical certificates. However, on one view, that response was an adequate and appropriate response to the complaint as charged. When he disclosed in evidence that there had been five certificates, there would be a real question as to whether the further disclosure should be weighed as creditable or whether the failure to volunteer it at an earlier stage was discreditable. Such a judgment would depend upon nice questions arising from the circumstances of the case.
Overall, it is clear that the Tribunal was conscious of the history of the responses given by the Respondent, which it set out in some detail in its reasons, at pp 21-27. As already noted, it concluded that the Respondent “did not appear to have full insight into all the implications of writing false medical certificates as demonstrated by his evidence that if he had not backdated the six medical certificates for patient C, but had written the date of the consultation, namely 18 May 2005, then there would not have been a problem”. Clearly each of these matters was addressed and weighed in the balance.
The third difficulty which arises from the circumstances of the case is the proper application of the standard with which medical practitioners are required to comply. On one view, if a practitioner sees a person after they have recovered from an illness, the provision of a medical certificate may be seen as no more than an acceptance of the history of symptoms given by the person, which may not involve any real application of medical expertise. On that view, it would never be proper for a medical practitioner to give a certificate in such circumstances.
This approach could not, of course, apply universally. For example, the person seeking a medical certificate, after an illness, may be an existing patient of the practitioner, whose history may include a diagnosis relevant to the illness complained of. In other circumstances, the history given may provide elements of internal coherence which could render it credible to a medical practitioner and provide a basis for certifying that the person had been ill. In any event, the standard applied by the Medical Board appears to have been constrained in its operation. Thus in a statement published in the newsletter of the Board dated August 2004, the following statement appeared under the heading “Crook Sickness Certificates”:
“The most common complaint is that a certificate is ‘back-dated’. … The certificate should state the date upon which it was written, and if this differs from the time off, or the date upon which the consultation occurred, then this should be made clear. …
A related problem arises where the doctor sees the patient after he or she has recovered, and writes a certificate based on the patient’s word regarding the nature and duration of the illness. The assumption is that the certificate is based on the doctor’s own observations, and if the patient’s account is accepted without this verification, then the certificate should clearly state this. To imply otherwise could be seen as being false or misleading.”
That a degree of flexibility must be accepted in relation to medical certificates arises from a combination of two factors. On the one hand, it is common experience that a person may be sufficiently unwell to justify non-attendance at work, or at a place of education, and yet not seek treatment from a medical practitioner. On the other hand, if the employer or other interested party will only accept an absence as legitimate if it be supported by a medical certificate, it is inevitable that medical practitioners will be invited to provide such certificates based on little more than the history given by the individual. There must then be nice questions (not the subject of any specific analysis in the Tribunal in this case) as to whether attendance to obtain such a certificate is a consultation in respect of which the patient may obtain reimbursement from a medical fund. If it is necessary to make clear in the certificate that it is provided purely on the basis of a history given after recovery, must the practitioner effectively disown giving a medical opinion? If so, the certificate would seem to lack efficacy.
These questions did not directly arise in the present case, because the Respondent gave certificates which were deliberately misleading, in that they were dated in such a manner as to suggest that there were consultations contemporaneous with the illness certified. On the other hand, once the dishonesty was accepted, the degree to which it was thought that such conduct compromised the Respondent’s entitlement to continued registration may be seen as a matter upon which the Tribunal, two members of which were medical practitioners, might have a special competence to form a view.
The fact that the practitioner charged small amounts for giving the certificates was also open to differing interpretations. It appears that in each case where a charge was made, it was paid by the patient directly. Although the charges did not exceed the amount recoverable from Medicare Private for a consultation, it appears that it was the patient who was required to recover the amount from the insurer and it is not clear whether that happened and whether such amounts were properly recoverable in the circumstances. In relation to the issue of invoices to Patient C, levying charges for consultations which did not occur may have been seen as itself conducive to the making of false insurance claims, but that was not the basis of complaint. To the extent that the rendering of invoices was seen as consistent with the statements as to the occurrence of consultations, and thus supportive of the false certificates, should inquiries have been made, a different colour may be given to the conduct than would be the case in different circumstances.

Failure to consider deregistration

A further criticism made of the reasoning of the Tribunal is that it failed to give express consideration to the possibility of deregistration. It therefore failed to explain why it thought a less serious disciplinary order was adequate and appropriate in the circumstances.
The first aspect of this challenge is based on an assumption that the Tribunal should start with the possibility of deregistration, once a finding is made of professional misconduct, because, by definition, such conduct is of its nature sufficiently serious to justify suspension or removal of the practitioner’s name from the register: the Act, s 37. However, it is clear that the definition is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64, which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1). Further, the power to impose a fine depends upon a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: s 62(2). Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case: see, in relation to legal practitioners, Walsh v Law Society of New South Wales (1999) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ).
In substance, the concern raised by the Commission is based on a proposition that the circumstances of the present case, on their face, required removal of the practitioner’s name from the register, unless there were specific mitigating factors, which needed to be expressly identified in the Tribunal’s reasons, to avoid demonstration of error.
It may be accepted that dishonesty in the practice of medicine will usually be treated as a matter of some seriousness. Nevertheless, dishonest conduct involves matters of degree. It is also a matter on which the views of the practitioner’s peers, both as revealed in the evidence from the character witnesses and as revealed by the decision of the Tribunal, are entitled to weight.

Furthermore, a legitimate consideration is whether the orders made reveal inconsistency of approach on the part of the Tribunal, when viewed against other decisions revealing similar kinds of misconduct. To understand that matter, the Court was provided with the submissions made below and the authorities relied upon by the parties. Neither before the Tribunal nor in this Court did the Commission suggest that there were other judgments of the Court or of the Tribunal which demonstrated that the orders made in this case were inherently beyond an established range. On the other hand, the Respondent drew the attention of the Tribunal (and of this Court) to two decisions which supported a view that deregistration was neither necessary nor appropriate.
The earlier decision was that of the Tribunal in the matter of Dr Douaihy of 10 May 2004. The complaint in that case involved false or misleading claims on the Health Insurance Commission, made on 12 occasions between 2 November 1997 and 31 January 1998. On 14 December 1999, the practitioner had been convicted in respect of 12 offences involving the same conduct, pursuant to s 128B of the Health Insurance Act 1973 (Cth). Doctor Douaihy was reprimanded and ordered to pay the Commission’s costs of the proceedings before it.
While the Tribunal accepted that “the conduct proved is conduct which in the usual course might be expected to lead to a finding of ‘professional misconduct’, for the reasons peculiar to this case it is the Tribunal’s view that the conduct should not be so regarded”: Reasons, p 4. Accordingly, the practitioner was found guilty of unsatisfactory professional conduct. A number of factors were cited in support of that conclusion. These included the relatively short period of time over which the offences were committed, that the amount involved was only $450, that the complaint was laid almost five years after the offences had occurred and that almost three years had elapsed after complaint was first made to the Commission by the Registrar of the Medical Board. The case cannot be regarded as indistinguishable from the present, but it does illustrate the fact that examples of dishonesty will differ in their perceived seriousness and will not necessarily require deregistration.
The second case relied on by the Respondent was the decision of the Tribunal in relation to Dr Whitton handed down on 6 December 2005. Doctor Whitton was charged that, over a period of more than two years, between July 1999 and November 2001, he inappropriately prescribed anabolic steroids to some 15 patients, destroyed his treatment records for the patients in November 2001, prepared false or misleading records and deliberately misled officers in the Department of Health in connection with an investigation. The Tribunal accepted that the seriousness of his conduct, independently of his admission of professional misconduct, justified a finding of professional misconduct: Reasons, p 15. Nevertheless, in the circumstances, the Tribunal imposed a reprimand, a fine of $25,000 and placed conditions on his registration. Again, the case should not be viewed as a precedent, establishing that deregistration is inappropriate for such offences. Rather, it should be viewed as an example, the weight of which will depend upon the similarity of the circumstances in each matter, revealing that the range of appropriate disciplinary orders will at least encompass orders of the kind made in the present case.
There remains a question as to whether the Tribunal properly considered the various matters which it was required to address in order to reach a finding as to the appropriate order. As noted above, one criticism which may be made of the Tribunal’s reasons is that they set out the evidence in some detail, without clearly identifying whether the evidence was accepted in whole or in part and, if accepted, what inferences were drawn from it. However, that was in part a response to the manner in which the complaints were presented to the Tribunal, including the concessions made by the Respondent to the particulars of the various complaints. However, in relation to the evidence of the Respondent, which was the subject of testing cross-examination, the Tribunal indicated in critical passages the degree to which it did not accept his evidence (particularly as to the level of his insight into his own conduct) and the degree to which it did, including its view that “since May 2005 he has not and will not in the future ever engage in such misconduct again”: Reasons, p 39.
In this Court, the Commission sought to challenge the last finding on the basis that it was not readily supportable on the evidence. However, that challenge is faced by two independent difficulties. The first is that it clearly depended in large part upon the Tribunal’s assessment of the Respondent in the witness box. That it made a careful assessment of his evidence is apparent from its willingness to accept it in part and reject it in part. The difficulty in interfering with such a finding is that it was based upon an assessment of him personally, subject to the subtle influence of demeanour, which cannot be overlooked: see Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179 (McHugh J, Mason CJ, Deane, Dawson and Gaudron JJ agreeing) and Fox v Percy (2003) 214 CLR 118 at [26]-[29] (Gleeson CJ, Gummow and Kirby JJ).
Quite separately, this challenge raises the question discussed above as to the power of this Court to interfere with findings on which a complaint was established or rejected. To take a different view of the Respondent’s commitment to basic elements of honesty in the practice of medicine would tend to cast doubt upon the Tribunal’s finding that he was not shown to be otherwise than of good character. Although the finding may be characterised as an inference, and not a finding of primary fact, and thus involving a matter of evaluative judgment, its rejection by this Court would effectively undermine the conclusion with respect to character which could not be challenged on the basis of factual findings and inferences and in respect of which no error of law has been demonstrated: see Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [89]. Accordingly, the Tribunal’s assessment of the evidence given by the Respondent, which was not contradicted by any objective material, must be accepted.
No relevant error having been demonstrated in the manner in which the Tribunal assessed the circumstances which led to the making of the disciplinary order, that challenge should also be dismissed.

Conclusion

The separate challenges to the findings and order of the Tribunal having failed, the appeal should be dismissed and the Appellant should pay the Respondent’s costs of the appeal.
BERGIN J: I agree with the orders proposed by Basten JA and the reasons therefor.
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AMENDMENTS:

22/04/2009 - Correcting format of legisation cited in coversheet - Paragraph(s) Coversheet

LAST UPDATED: 22 April 2009