Jamil v Medical Board of Australia - [2025] SASCA 103

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
JAMIL v MEDICAL BOARD OF AUSTRALIA
[2025] SASCA 103
Judgment of the Honourable Justice Stanley
19 September 2025
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - ORIGINATING PROCESS, PLEADINGS ETC
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
This is an interlocutory application.
The applicant was found to have engaged in professional misconduct within the meaning of s 5 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) by the South Australian Civil and Administrative Tribunal (The Tribunal). These findings followed complaints made by two medical students against the conduct of the applicant, which led to an investigation and ultimately a formal amended Complaint from the Medical Board of Australia. The Complaint was referred to the Tribunal for determination.
Mr Jamil appealed the Tribunal's decision to a single Judge of the Supreme Court of South Australia. The appeal was essentially a challenge to the Tribunal’s findings on credit and reliability of the witnesses and how it weighed their evidence. The appeal was dismissed, finding no error in the Tribunal’s approach and reasons. He has now sought to appeal that decision to the Court of Appeal with essentially the same challenge being put to the Court, and in doing so, brings an interlocutory application ahead of the appeal seeking leave to adduce further evidence on appeal, and leave to amend his notice and grounds of appeal.
The further evidence the applicant seeks to adduce is said to undermine the credibility of witnesses who gave evidence before the Tribunal. The amended grounds of appeal, with the exception of proposed ground 6, are contingent upon the admission of this further evidence.
The respondent opposes the application to adduce further evidence on appeal, submitting that the further evidence sought to be adduced does not meet the well-established legal principles for the admission of further evidence on appeal, particularly in the circumstances where the evidence involves collateral attacks on the credit of witnesses, and where its admission would pose a risk to the integrity and efficiency of the civil litigation system. The respondent also opposes the application to amend the notice and grounds of appeal.
Held, dismissing interlocutory application FDN 16:
1.The public interest in the finality of litigation stands in the way of the application to adduce further evidence on appeal, even when allowing for the considerations that apply to disciplinary proceedings, and particularly where the further evidence sought to be admitted goes to collateral issues.
2.In circumstances where arguments could have been but were not put during the Tribunal proceedings and in front of the single Judge, and where evidence could have been obtained by the exercise of reasonable diligence, but was not, the omission earlier makes their late introduction unjustifiable.
3.Where an application to amend the notice and grounds of appeal is consequential on the success of an application to adduce further evidence on appeal, and the latter has been refused, there is no justification to permit the proposed amendments.
4.Where an application to amend the notice and grounds of appeal is likely to require the recall of an expert, causing further delay, cost and the prolongation of the matter in circumstances where the challenge to that evidence was not made in earlier proceedings, there is no justification to permit the proposed amendments contrary to the principle of finality.

Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) s 5; South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA) s 71, referred to.
Burke v Public Trustee for the State of South Australia [2022] SASCA 64; Fernando v Medical Complaints Tribunal (2004) 12 Tas R 366; Slater v Ecosol Pty Ltd [2024] SASCA 95, applied.

JAMIL v MEDICAL BOARD OF AUSTRALIA
[2025] SASCA 103
Civil
STANLEY JA:
Introduction

Shamyal Haroon Jamil (the applicant) has instituted an appeal from a judgment of McIntyre J delivered 10 July 2024 dismissing his appeal from a decision of the South Australian Civil and Administrative Tribunal (the Tribunal). The appeal to McIntyre J from the decision of the Tribunal was brought pursuant to s 71 of the South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA). That appeal was against some of the findings made in relation to the allegations set out in an amended Complaint filed by the Medical Board of Australia (the Board), and the ultimate finding that the applicant had engaged in professional misconduct within the meaning of s 5 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA). McIntyre J dismissed the appeal. The applicant has now brought this appeal.
By interlocutory application FDN 16, the applicant now seeks to adduce further evidence on this appeal and to amend his grounds of appeal consequential to the application to adduce further evidence on appeal.
The Board is the regulatory authority that supervises the registration and practice of medical practitioners in Australia. It prosecuted the Complaint against the applicant. It opposes this application. On the hearing of his application the applicant appeared as a litigant in person.
Background
The Complaint arose out of events in June and July 2020. At the time, the applicant was a recently registered medical practitioner working at an Adelaide hospital. AB and CD were two medical students undertaking three-week placements at the same hospital in 2020. They complained to the applicant’s employer, the Central Adelaide Local Health Network of SA Health (CALHN), concerning the applicant’s conduct. The Australian Health Practitioner Regulation Agency (AHPRA) conducted an investigation which resulted in the Complaint.[1] The Complaint proceedings were referred to the Tribunal by the Board. The Tribunal heard evidence from the applicant, AB, CD, and Mr Jean-Pierre du Plessis, an expert in computer technology. The allegations against the applicant were set out in an amended Complaint filed on 29 November 2022. The Tribunal, in its decision, described the allegations against the applicant as follows.
[1] AHPRA was established to implement the national legislative scheme and to provide support to the Board. This includes comprehensive powers to investigate notifications concerning registered health practitioners.
The first allegation is that the applicant transgressed professional boundaries by engaging in sexualised and/or inappropriate conduct with respect to AB and CD. AB alleges the applicant sent her text messages of an inappropriate and sexualised nature. She further alleged that the applicant sent her a disappearing message which contained a nude photograph of him. It was further alleged that he sent another disappearing message which contained the same photograph but with his genitals blurred or obscured and arrows added to demonstrate muscle groups. The allegations relating to CD are that he sent her messages that were inappropriate and/or sexualised; sent a message containing a photograph of his genitalia and other messages containing a nude photograph of him; that he touched CD’s thigh in the work environment; grabbed CD’s hand while in the work environment and rubbed it along his thigh; asked CD to accompany him to an empty meeting room to “debrief”; asked CD on a number of occasions to go for a drive with him; purchased a vibrator which he gave to CD at the clinic; and drove CD to his home where he propositioned her for sex and played pornography on his laptop.
The second allegation is that the applicant breached patient confidentiality by disclosing the name of a patient of the clinic and making disparaging comments about the patient’s mental health to AB during a text message exchange on 10 July 2020.
The third allegation is that the applicant created and provided two false documents to the authorities in the context of investigations into his conduct. The first was alleged to be a copy of a purported screenshot of an exchange in the secret messages function of Facebook Messenger between himself and AB. The second was alleged to be a purported screenshot of messages sent to the applicant by CD in which she apologised to him.
The basis of the findings of fact
In making findings of fact the Tribunal assessed the credibility of each of the witnesses. It accepted the unchallenged evidence of the expert, Mr du Plessis. It considered AB to be an impressive witness who gave evidence in a careful and measured way. It found that she was an honest and generally reliable witness. The Tribunal had a high level of confidence in her evidence concerning the critical issues in the case. The Tribunal found CD to be a less impressive witness. The Tribunal had significant reservations concerning her honesty and reliability, particularly in relation to areas where she might perceive that the truth would harm her. While her evidence was to be treated with considerable caution, the Tribunal held that it did not necessarily follow that any or all of her allegations were fabricated. The Tribunal found that much of her evidence concerning the conduct of the applicant received strong support from other evidence. However, the Tribunal was only prepared to act on her evidence in those circumstances, where it appeared to be plainly truthful and reliable. The Tribunal found the applicant was not a credible or reliable witness for a variety of reasons, as set out in its reasons for decision. Nonetheless, the Tribunal held that rejection of the applicant’s evidence did not prove matters alleged against him, nor did it mean that the evidence to the contrary should be accepted. McIntyre J found no reason to interfere with the findings made by the Tribunal as to the credit and reliability of the witnesses from whom it had heard.
In relation to the first allegation, the Tribunal found all of the allegations in respect of AB proved, and some, but not all, relating to CD. The Tribunal was not satisfied to the requisite standard that the Board had proved the applicant grabbed CD’s hand while in the work environment and rubbed it along his thigh, or that he drove CD to his home where he propositioned her for sex and played pornography on his laptop.
The Tribunal found the second allegation proved, finding that the applicant breached patient confidentiality by disclosing the name of a patient and making disparaging comments about the patient’s mental health to AB during a text message exchange on 10 July 2020.
The Tribunal also found the third allegation proved, finding that the applicant created and provided two false documents to the authorities in the course of the investigation into his conduct. The first was a screenshot of a purported exchange in the secret messages function of Facebook Messenger between himself and AB, in which it appeared that AB initiated a conversation about personal matters with the applicant. The second was a screenshot of messages purportedly sent to the applicant by CD in which CD appears to offer an apology to the applicant that she “took your nude” and requesting that he tell the police to stop asking her about it.
Principles relevant to the admission of further evidence on appeal
The principles relevant to the application to admit further evidence on appeal were analysed in the judgment of Doyle JA, with which I agreed,[2] in Burke v Public Trustee for the State of South Australia[3] as follows:[4]
[2] Burke v Public Trusteefor the State of South Australia [2022] SASCA 64 at [480].
[3] [2022] SASCA 64.
[4] Burke v Public Trusteefor the State of South Australia [2022] SASCA 64 at [455]-[456].
… the Court has a broad discretion under r 218.17(1)(c) of the Uniform Civil Rules 2020 (SA) to receive further evidence on a question of fact that arises on an appeal. The discretion is not circumscribed by the common law principles governing the reception of “fresh evidence” on appeal, although similar considerations apply. In particular, it will generally be relevant to consider:
·whether the evidence was available, or could with reasonable diligence have been obtained, for use at the hearing below;
·whether the evidence is such that it would have had an important influence on the decision below. While it need not necessarily be decisive, it must be more than merely relevant or useful;
·the likely practical impact of receiving the evidence, including whether it is controversial or contested, and if so likely to require cross-examination, further responding evidence and/or that the matter be remitted for rehearing; and
·the public interest in the finality of litigation.
The relevance of the last two considerations, and in particular the public interest in finality, was emphasised by the Full Court in both Chakravarti v Advertiser Newspapers Ltd and Collex Waste Management Services Pty Ltd v The Corporation of the City of Enfield (No 2).
[citations omitted].
In Slater v Ecosol Pty Ltd[5] Bleby JA explained the risk to the adversarial system of civil litigation if courts permitted adducing fresh evidence on appeal on collateral issues. He said:[6]
Mr Slater thus seeks to adduce fresh evidence on appeal in order to raise a collateral issue that goes only to the credit of Mr Smith. Adducing evidence to that effect would not be permitted at trial. As Gleeson CJ said in Goldsmith v Sandilands, the adversarial system of civil litigation would collapse if the adversaries were permitted to lead evidence about every matter of contention that arises in the course of proceedings.
The mischief is compounded here in that the effect of the evidence is contested. Moreover, it is said to go to the credit of Mr Smith only in the most obscure of ways, in that it seeks to draw on conduct subsequent to the trial to show that Mr Smith should have been found at trial to have been a dishonest witness.
The word ‘collapse’ is insufficient to describe the damage that would be done to the adversarial system of civil litigation if litigants were to be permitted to adduce fresh evidence on appeal of subsequent conduct of a witness, the effect of which is contested and which, in any event, was only directed to the general credibility of that witness by casting a backward light over answers given at trial. The principle of finality stands firmly in the way of Mr Slater’s application.
[citation omitted].
[5] [2024] SASCA 95.
[6] Slater v Ecosol Pty Ltd [2024] SASCA 95 at [25]-[27].
As these are disciplinary proceedings, where a person’s professional reputation and career are at stake, the public interest in the finality of litigation carries less weight than in the more common kinds of civil appeals.[7] However, that is not to say that it carries no weight. As Bleby JA emphasises in Slater, there remains a strong public interest in the finality of litigation.
[7] Fernando v Medical Complaints Tribunal (2004) 12 Tas R 366.
The nature of the further evidence the applicant wishes to adduce on appeal
The further evidence the applicant wishes to adduce on this appeal is as follows:
(i)An affidavit of AB made on 19 March 2025 in support of her application for a protection order against the applicant, in which she deposed that the Board revoked the applicant’s registration and that the applicant filed two complaints against her with AHPRA, in respect of which she said she had not been provided with details of the complaints. This evidence relates to the credit of AB. In my view, it is not of sufficient cogency to warrant granting the interlocutory application to admit the affidavit as further evidence on appeal. The first statement made by AB in her affidavit, which the applicant says is “objectively false”, is that the Board revoked his registration. This statement is strictly inaccurate as that did not occur. The evidence is that the applicant allowed his registration to lapse on 14 January 2022 after he had been stood down in August 2020 pending an investigation by CALHN into the allegations concerning his conduct. The second statement which the applicant says is “objectively false” is where AB misrepresented the situation in relation to the applicant’s complaint to APHRA about her, namely, that she said she had not been provided with details of the complaints. The outcome letter from APHRA relevantly says that it had advised AB about the concerns the applicant had raised with it concerning her social media account. The audio recording and transcript of a conversation between the applicant and Ms Polich of AHPRA records Ms Polich relevantly saying that she had “spoken to practitioner about their social media account”. That evidence is not obviously inconsistent with AB’s statement in her affidavit. It is a question of degree. While this evidence may be an attack on her credit, I do not consider that this evidence sought to be adduced on appeal is sufficiently cogent to lead to an adverse finding concerning her credit.
(ii)An audio recording and a transcript of a conversation between the applicant and Ms Polich of AHPRA on or about 24 July 2024 which is alleged to evidence Ms Polich’s partiality towards AB. The applicant alleges this partiality, combined with her presence during deliberations influenced the Board’s investigation into his conduct. I do not consider there is any force in this submission. The applicant did not point to any relevant evidence to support the allegation.
(iii)The transcript of an interview between AB and a CALHN investigator, Liesl Mounfield, on 9 September 2020 concerning the allegations which subsequently formed part of the Complaint brought by the Board against the applicant. This evidence is said to demonstrate prior inconsistent statements allegedly made by AB, which the applicant says goes to her credit as a witness. These inconsistencies were raised with AB in the course of her evidence in the Tribunal. This was done by reference to her statement to CAHLN, which derived from the transcript from her interview with Ms Mounfield. In addition, the applicant submits that a prior inconsistent statement was made in relation to the second allegation proved, being the breach of patient confidentiality. The Tribunal’s finding was not based solely on AB’s evidence and therefore her credit. The Tribunal placed reliance on the evidence of other witnesses including Mr du Plessis. I do not consider this evidence is sufficiently cogent that it would have had an important influence on the decision of the Tribunal or McIntyre J. In any event, the existence of this evidence was known at the time of the hearing in the Tribunal, and it could have been obtained by the exercise of reasonable diligence on the part of the applicant’s lawyers.
(iv)Evidence of the decisions of the Board not to take further action in relation to complaints made against AB and CD as set out in the AB and CD outcome letters, which the applicant alleges evidences a lack of impartiality and independence on the part of the Board. There is no evidence to support the application to call this further evidence on appeal other than the fact of the Board’s decision not to take action against AB and CD for conduct alleged against them by the applicant. The applicant did not identify any evidence beyond the decision of the Board.
(v)Extracts of an exit interview with Dr Anne Tonkin, the former Chair of the Board, in early 2025, which the applicant says demonstrates bias. Again, there is no evidence which the applicant identifies that opinions expressed by Dr Tonkin in an interview given months after the decision of McIntyre J had any influence on the decisions of the Board or McIntyre J. I do not accept the submission that the mere presence of Dr Tonkin would have influenced the outcome of the Boards finding.
(vi)The reasons for decision of the Tribunal on 26 October 2022 refusing an application by AB and CD for the summary dismissal of the complaints of sexual harassment and aiding and abetting that harassment, made by the applicant against them to the Equal Opportunities Commission, which was referred to the Tribunal. The applicant complains that AB incorrectly informed the AMC when applying for a protection order that while the application for a stay of his complaint against AB and CD had been granted, the application for summary judgment had been dismissed. This is said to be relevant to an assessment of credit. I accept that once the outcome of the proceedings had been mentioned it was incumbent on AB to fully disclose the situation, however, I do not consider that the failure to do so was so damaging to her credit that it would have had an important influence on the decisions of the Tribunal or McIntyre J. The evidence only goes to her credit. Moreover, it is a collateral issue. The evidence relates to proceedings the applicant had brought before the Equal Opportunities Commission. Even if the contents of her affidavit in the AMC misstates the effect of the dismissal of the application for summary judgment, it is the case that AB and CD had successfully obtained a stay of the proceedings pending the outcome in the Tribunal. The representation in her affidavit that the applicants complaint was declined was inaccurate, but the topic was irrelevant to the proceedings in the Tribunal and subsequently before McIntyre J.
(vii)Screenshots of the conduct of AB and CD which the applicant contends undermines their credit and reliability. I do not accept that the screenshots undermine their credit or reliability. I do not consider anything depicted is inconsistent with their evidence.
(viii)Extracts from a WhatsApp group on CD’s phone, which the applicant says would evidence that CD shared an explicit image of him within that group. The content of the data sought to be extracted is unclear as it is not before the Court. It remains uncertain whether the data in question even exists. To the extent that the applicant contends that this evidence would undermine the credit of CD, the attack on her is entirely collateral. The applicant submits that the evidence depicts CD engaging in sexual conduct which is criminal as it involves an explicit image of a person being distributed without their consent. I do not accept this submission. Assuming that the person depicted in the explicit photograph is the applicant and that this picture was distributed without his consent, the evidence does not support a finding that any of this was done by CD. In any event, I do not accept that any of the allegations made in relation to this topic are relevant to the real issue in the proceedings which is the applicants conduct, not the conduct of AB and CD.
(ix)Photographs taken by a Victorian police officer in 2022 of messages the applicant says were sent to his phone by the partner of CD, which were offensive and threatening. At their highest these matters can only be relevant to credit, but I do not consider they are relevant to the real issue in the proceedings which is the conduct of the applicant. I do not consider they are in any way probative of a fact in issue that would justify an order admitting this “evidence”.

Some of the evidence sought to be adduced on this appeal is material that was in existence prior to the hearing before the Tribunal and could have been obtained with reasonable diligence before either the hearing in the Tribunal or before McIntyre J. This is the case with the evidence in categories (iii), (vi) and (vii). However, most of the evidence the Board opposes being heard is evidence that it submits would not have had any influence on the outcome of the Tribunal proceedings or the judgment of McIntyre J. This is the case with the evidence in categories (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix). The other category of evidence which should not be admitted is evidence that is controversial or contested and therefore likely to require cross-examination and further responding evidence. This is the case with the evidence in categories (i), (ii), (iii), (vi), (vii) and (viii).
Most of the evidence the applicant seeks to adduce on appeal concerns collateral attacks on the credit of AB and CD. Those attacks invoke the very risk identified by Bleby JA in Slaterv Ecosol Pty Ltd.[8]
[8] [2024] SASCA 95.
Some of the applicant’s submissions invoke considerations of the model litigant. He submits that the Board is obliged to conduct itself as a model litigant. The Board did not suggest otherwise. Nonetheless, accepting that the Board is obliged to conduct itself as a model litigant did not impose upon it any obligation to undertake investigations seeking to ascertain whether there might be evidence which would assist or would have assisted the applicant’s case. No authority for such a proposition was cited.
The application to amend the grounds of appeal
It is apparent from this analysis of the nature and basis of the further evidence the applicant wishes to adduce on the appeal that he seeks to substantially amend the case he ran before the Tribunal and McIntyre J.
In my view, none of this supports an order permitting the applicant to adduce further evidence on the appeal.
The application by the applicant to amend the notice of appeal is consequential on the admission of the further evidence with the exception of proposed ground 6. Proposed ground 6 relates to a submission that the expert evidence before the Tribunal was not based on specialised knowledge. That submission was not made before the Tribunal or McIntyre J. To permit that amendment now is likely to require the recall of Mr du Plessis, further delay, cost and the prolongation of the matter.
Conclusion
Even allowing for the considerations that apply to disciplinary proceedings, I would refuse the application to adduce the further evidence. As a result, there is no justification to grant the application to amend the notice of appeal. Accordingly, I would dismiss the interlocutory application FDN 16. I would hear the parties as to costs.