Keogh v Medical Board of South Australia - [2007] SASC 342

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KEOGH v THE MEDICAL BOARD OF SOUTH AUSTRALIA & ANOR
[2007] SASC 342
Judgment of The Honourable Chief Justice Doyle
25 September 2007
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - OPPORTUNITY TO PRESENT CASE
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS
Judicial review – error of law – whether, in review of complaint against coroner, Medical Board applied incorrect test of unprofessional conduct, leading the Medical Board to ask itself wrong question – procedural fairness – whether Medical Board had statutory duty to conduct inquisitorial inquiry - whether Medical Board imposed arbitrary time limit on proceedings – whether reasons of Medical Board failed to address all substantial aspects of complaint – irrelevant considerations – whether the Medical Board took into account irrelevant consideration or acted illogically or unreasonably.
Held: Medical Board incorrectly exercised jurisdiction – committed error in law – applied incorrect test of unprofessional conduct – failed to ask and answer right question – appeal allowed – decision of Medical Board set aside.
Supreme Court Rules 1987 (SA) r 98.01; Medical Practitioners Act 1983 (SA); Medical Practitioners Act 2004 (SA) s 5, s 7, s 9, s 13, s 15, s 16, s 17, s 18, s 20A, s 23, s 50, s 51, s 54, s 57, s 58; Civil Liability Act 1936 (SA) s 40, s 41, referred to.
Coote v Medical Board of South Australia (1999) 204 LSJS 459; Pillai v Messiter (No 2) (1989) 16 NSWLR 197; Trevorrow v South Australia (No 4) (2006) 94 SASR 64, distinguished.
Craig v South Australia (1995) 184 CLR 163; Minister for Immigration v Yusuf (2001) 206 CLR 323; In re R, A Practitioner of the Supreme Court [1927] SASR 58; F v R (1983) 33 SASR 189, discussed.
R v Keogh [2007] SASC 226; Medical Board of South Australia v N, JRP & Anor (2006) 93 SASR 546; AYHT v Medical Board of South Australia (2000) 77 SASR 148; Re Refugee Tribunal; Ex Parte AALA (2000) 204 CLR 82; Reyes v Dental Board of South Australia (2002) 83 SASR 551; Rogers v Whitaker (1992) 175 CLR 479; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165; Roylance v General Medical Council (No 2) [2000] 1 AC 311; Re C & P [1992] Crown Office Digest 1-92; Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446, considered.

KEOGH v THE MEDICAL BOARD OF SOUTH AUSTRALIA & ANOR
[2007] SASC 342
Civil

DOYLE CJ: Mr Keogh has brought proceedings by way of judicial review against the Medical Board of South Australia (“the Board”). The Board dismissed a complaint that he laid before the Board, alleging unprofessional conduct by Dr Manock, a medical practitioner. Mr Keogh claims that the Board made errors of law that invalidate its decision. He wants the decision set aside, and wants the complaint reconsidered. He complains about the procedure that the Board followed, and about aspects of the way in which it dealt with the substance of his allegations.
I will outline the background to the proceedings, then consider the legislation, and then deal with each of the complaints that Mr Keogh makes.
Background
In August 1995 Mr Keogh was found guilty by a jury of the murder of Ms Cheney. She died on 18 March 1994. Mr Keogh has appealed against his conviction without success. On 4 April 1997 Mr Keogh applied for an order that a dismissed appeal against conviction be reopened to enable him to present new arguments. That application was dismissed on the grounds that the Court lacked jurisdiction to entertain it: R v Keogh [2007] SASC 226.
At all material times Dr Manock was a medical practitioner, practising as a specialist forensic pathologist. He carried out an autopsy on Ms Cheney commencing on 20 March 1994. At that time Dr Manock was the Chief Forensic Pathologist at the State Forensic Science Centre (“the Centre”).
I gather that in the course of performing the autopsy Dr Manock formed the opinion, as a result of observations he made, that Ms Cheney died from fresh water drowning. He also formed the opinion that the drowning was deliberate, and not accidental, and that the drowning involved another person. Dr Manock relied on observations he made of what he said were bruises on Ms Cheney’s left leg. He considered that the bruises were consistent with someone having grasped Ms Cheney by the leg while she was in the bath, and then having raised her legs causing her head to go under the water, drowning her. I emphasise that this is a brief summary of the situation, intended only to identify the fact of the autopsy and the opinion that Dr Manock formed, the two matters from which these proceedings arise.
Dr Manock communicated his views to the police. Mr Keogh was charged with the murder of Ms Cheney. He was living with Ms Cheney at the time of her death. Dr Manock gave evidence about the autopsy and cause and method of death at the committal and at the trials of Mr Keogh. There were two trials. At the first trial the jury was unable to agree. He was convicted at the second trial. Dr Manock’s evidence at the trials included evidence about his observations of the bruising on Ms Cheney’s leg, about his opinion as to the cause of death (fresh water drowning) and about his opinion that the drowning was not accidental.
In Mr Keogh’s appeals against his conviction he has attacked the findings of Dr Manock, in particular his opinion as to the cause of death and his opinion that the drowning, if it occurred, was deliberate and not accidental. Through his counsel he has criticised the conduct of the autopsy, as being deficient in a number of respects. He has said that the opinion as to the cause and method of death was expressed without a sufficient basis, and in particular without adequate consideration of alternative hypotheses, and without adequate consideration of the question of whether those alternative hypotheses could be excluded. He has said, in effect, that the autopsy was not conducted competently, and that the opinion as to cause and method of death was not just unsound, but was given in circumstances that amount to professional incompetence. This is said to be the case because of the gravity of the circumstances (an allegation of murder), and because of the claimed unsatisfactory basis upon which it is claimed the opinion was expressed. He has also criticised Dr Manock for not making adequate disclosure of relevant matters to the Director of Public Prosecutions, and has criticised aspects of his evidence in court. Again, these criticisms are said to disclose conduct that is not proper professional conduct.
In late 2001 solicitors acting on behalf of Mr Keogh appear to have written to the Board, making a complaint of unprofessional conduct. Some time later further particulars were given.
The first hearing before the Board was not until 18 December 2003. There is no material before me that explains the delay that occurred. No point was made about this before me.
An “Amended Complaint” was provided to the Board by Mr Keogh’s solicitors on 1 April 2004. When the Board next met on 15 July 2004, this complaint appears to have been treated as the complaint to be considered by the Board.
The initial complaint, and the further particulars, appear to have dropped out of sight. Nothing turns on that.
As I have said, the complaint alleges unprofessional conduct on the part of Dr Manock. The complaint raises matters raised in the appeal against conviction. In general terms the complaint is based on the manner in which the autopsy was conducted, the manner in which Dr Manock arrived at his opinion as to the cause and manner of death, criticism of the basis and soundness of that opinion, and on the evidence he gave at the trial of Mr Keogh. The complaint is that Dr Manock carried out the autopsy in a manner that was below acceptable professional standards in a number of respects, and that there was not a sufficient basis, as a matter of sound professional practice, for Dr Manock to express the opinion and give the evidence that he gave as to the cause and method of death.
The Board heard evidence over the course of three days in November 2004. Written submissions were then provided by the parties. The Board heard final oral submissions on 17 December 2004.
The Board gave its decision on 22 June 2005. The Board dismissed the complaint. The Board considered the material and evidence provided by Mr Keogh, through his legal representatives, and material provided by Dr Manock. Dr Manock gave evidence before the Board. Evidence was also given by some experts called by Mr Keogh’s representatives. The Board considered the manner in which the autopsy was conducted, and Dr Manock’s opinion as to the cause of death and the manner of death. As to the conduct of the autopsy, the Board referred to a number of criticisms that were made. It did not accept those criticisms. The Board referred to Dr Manock’s opinion that the cause of death was fresh water drowning. Dr Manock based this opinion, in substance, on the presence of “differential aortic staining”. This was said by Mr Keogh to be a theory that lacked support in professional texts and professional opinion. As to this, the Board said:
However, the Board is not able to say that the view based upon case studies at the Centre has been shown in this inquiry to be untenable.
The Board turned to the complaint that the opinion as to drowning and method of drowning was given in circumstances that amounted to unprofessional conduct, because the opinion lacked proper support, and in particular because other possible causes were not excluded. Two of the experts who gave evidence before the Board (one by affidavit and one orally), said that Dr Manock’s theory was not soundly based. As to this the Board said:
[36]However, it has not been suggested that anything excluded the cause of Ms Cheney’s death as being by drowning. There was strong circumstantial evidence that if she drowned, it was in the bath. There was no affirmative opinion that her drowning was accidental. It was therefore open to conclude that her drowning was deliberate. There is some support for this theory, whether or not the mark on the inside of the left leg was proven by histology to be a bruise. These matters have been subjected to the full scrutiny of the criminal justice process. The Board cannot say that the way in which Dr Manock conducted the autopsy and in which he arrived at the murder hypothesis constituted a departure from observed or approved professional standards to a substantial degree. The Board’s conclusion, therefore, is that unprofessional conduct on his part has not been established and that the complaint must be dismissed with costs.
On 9 September 2005 Mr Keogh commenced these proceedings. They are brought under r 98.01 of the Supreme Court Rules 1987 (SA) (now repealed). They are proceedings by way of judicial review. The proceedings have proceeded on pleadings. A detailed amended Statement of Claim was filed in December 2006.
Dr Manock was joined as a defendant to the proceedings at an early stage. His defence was filed in January 2007.
The Board has appeared by counsel from time to time, to assist the Court, but has not taken an active part in the proceedings. The Board submits to any order that the Court sees fit to make. Dr Bleby, counsel for the Board, appeared at the commencement of the proceedings, and briefly a little later, to provide certain information to the Court about the circumstances under which the Board provided certain documents to Mr Keogh’s representatives. I will come to that later.
Affidavits have been filed in the proceedings. The hearing before me proceeded on the basis of the affidavits, subject to some brief oral evidence relating to the disclosure of documents by the Board. A number of affidavits and exhibits were tendered by Mr Game SC, counsel for Mr Keogh, and all but three were admitted without objection. The three contested exhibits were marked for identification, and I will return to them later. A short affidavit from Dr Manock was admitted in evidence.
I have before me the complaints and particulars that were put before the Board, the transcript of proceedings before the Board, two affidavits from experts that were tendered by Mr Keogh’s representatives before the Board (Professor Cordner and Professor Thomas), a copy of a report from Dr Oettle (I will come to this later), a copy of the Board’s decision, and a copy of the Board’s decision on costs. Some other documents were tendered, but it is not necessary to refer to them.
The alleged errors
There is some overlap between the criticisms that Mr Game makes of the Board’s decision.
Mr Game submits that the Board applied the wrong test of unprofessional conduct, and in the end asked itself the wrong question. He submits that its decision is invalid in law because of that.
He makes a number of criticisms of the manner in which the Board conducted the proceedings before it. He submits that the Board should have conducted an “inquisitorial inquiry”, and failed to do so. He submits that the Board was obliged to inquire into the complaint, and having received the complaint should have carried out its own investigations, and should not have required (as it did) Mr Keogh to make out his case. At the least, he submits that the Board was not entitled to confine its attention to the material put forward by Mr Keogh, and should have considered what further material might be relevant and helpful, and should have obtained that material itself. He also complains that the Board imposed an “arbitrary” limit on the proceedings. On the first day on which it heard evidence the Board said that it had only two days to hear the matter. Ultimately the hearing went a little longer than that. Mr Game submits that this denied Mr Keogh a reasonable opportunity to present his case, and to cross-examine Dr Manock in the detail in which he should have been cross-examined. He submits that this also prevented the Board from inquiring fully into the complaint as it should have done. Mr Game submits that in these two respects the Board misconceived its statutory function, and did not act fairly towards Mr Keogh. The decision is said to be invalid because of this.
Mr Game submits that the Board failed to deal in its reasons with substantial aspects of the complaint. In this respect he relies on the “Amended Complaint” of 1 April 2004, tendered before me as exhibit P6. As I have already mentioned, the argument proceeded on the basis that this was the complaint the subject of the hearing. The matters that he says the Board failed to consider are conveniently summarised in para 35 of the Amended Statement of Claim. In brief they are these. First, an aspect of the conduct of the autopsy, in that Dr Manock authorised the release of Ms Cheney’s body for cremation meaning that his observations and findings could not be challenged or questioned appropriately. Second, that Dr Manock failed to observe or record certain matters which it is said are observable in photographs taken as part of the autopsy. Third, that Dr Manock failed to make appropriate enquiries into Ms Cheney’s medical history. The fourth, sixth and seventh complaints are, in substance, that Dr Manock failed to consider and allow adequately for alternative possible causes of death. The fifth is a complaint that he should have obtained advice from other experts in relation to two particular matters. The eighth complaint is that he gave evidence at trial that he observed a pattern of bruising on Ms Cheney’s left leg which was significant when considering the cause of death, and yet it is said that he acknowledged before the Board that he knew all along that a slide relating to one of the bruises failed to show microscopic evidence of bruising. The ninth complaint is that Dr Manock failed to inform the Director of Public Prosecutions about this last matter.
The last matter is raised also in the “Further Complaint” (tendered as exhibit P7) which was received by the Board on 18 November 2004, after the hearing of evidence was completed, but before final submissions. It is not necessary to make any separate reference to this complaint.
Mr Game submits that these were matters that the Board had a statutory obligation to consider and decide, and that its failure to do so (if it failed to do so) means that it has failed to exercise its jurisdiction, and so its decision must be quashed.
The next matter arises from the fact that early in the proceedings the Board gave the parties a list of all documents in its possession. This was not a list in the form provided by the Supreme Court Rules, but appears to have been by way of informal discovery. Upon request by the solicitors from Mr Keogh, copies of a number of documents were provided to the solicitors. They included memoranda apparently prepared by three of the Board members. In those memoranda the Board members comment on the subject matter of the complaint. It appears that the memoranda were circulated among the Board members as part of the process of arriving at a collective decision. The memoranda contain some opinions and comments critical of the work of Dr Manock. The reasons of the Board for dismissing the complaint do not reflect these criticisms, and indeed tend to contradict them, because the Board’s conclusion (set out above) is that there was no departure from “observed or approved professional standards to a substantial degree”. Mr Game argues that the views in the memoranda are “emphatic, unqualified and concluded views”, and that the published decision of the Board is “in manifest contradiction” of those views. He submits that the only explanation is that the Board took into account a new matter that it should have disclosed to Mr Keogh, but did not disclose; that it took into account some irrelevant consideration; that it acted illogically or unreasonably or that it made “a fraudulent decision”.
On the basis of these memoranda Mr Game submits that I should conclude that an error of the kind identified has been made, and that accordingly the decision must be set aside.
The next matter arises from the fact that in its reasons the Board refers to a report provided by Dr Oettle, which was tendered before me as exhibit P14. The tendered copy does not bear a date, but it appears to have been written in 1994. It is a report to the then director of the State Forensic Science Centre. Dr Oettle had reviewed all autopsies on persons under the age of fifteen years carried out at the Centre between 1989 and 1993, a total of 100 cases. The report was referred to in the course of the re-examination of Dr Manock before the Board. It received only passing attention then.
The Board made several references to Dr Oettle’s report. In particular it used it to conclude that the Centre “met international standards in 1994” and then used those standards as the measure against which Dr Manock’s conduct should be measured.
Mr Game makes a number of criticisms of this. The first is that even if the practices followed at the Centre were in accordance with appropriate standards, that leaves the question of whether Dr Manock conducted the autopsy competently. In other words, the report of Dr Oettle should not have been relied upon. There were some comments made by Dr Oettle that might amount to criticisms, or a call for improvements, and these were not dealt with by the Board. More significantly, he complains that the Board failed to investigate a suggestion made to Dr Manock in evidence that Dr Oettle’s report was “discredited” in a Coroner’s finding. Finally, the Board had refused to consider criticisms made of Dr Manock by the Coroner in an unrelated inquest (I gather that this is said to be the inquest the findings in which “discredited” Dr Oettle’s report), and so it was unfair and contradictory to use Dr Oettle’s report as it did. If adverse findings in other cases were not relevant, favourable findings in other cases could not be relevant.

Mr Game submits that in this respect the Board has approached the matter in an illogical fashion, and has relied upon irrelevant material, and that this is an error of law meaning that the decision should be quashed.
The Court’s role
I emphasise that my role in these proceedings is not to hear an appeal against the decision by the Board. It is not for me to say whether I agree or disagree with the Board’s conclusions, nor is it my role to consider the merits of the complaint that Mr Keogh made to the Board.
In proceedings by way of judicial review such as these the role of the Court is to consider whether there has been an error of law of a kind that invalidates the decision that has been made. This is usually referred to as a jurisdictional error. Such an error means that the Board has failed to exercise its jurisdiction, and the matter must be sent back to it for it to do so, or that the Board has made a decision in which it has misunderstood its jurisdiction, and so again the matter must be sent back to it for reconsideration.
If Mr Game’s submission succeeds, the result will be that the decision of the Board is quashed, and that the matter is remitted to it for rehearing. It is not the function of this Court to uphold or to dismiss the complaint by Mr Keogh, or to uphold or reverse this Board’s decision on the merits. The Court’s function is to consider whether it should set aside the decision on the ground that the decision is invalid because of an error of law, and remit the matter to the Board to be reconsidered if the decision is invalid.
The legislation
The complaint was laid before the Board under the Medical Practitioners Act 1983 (SA) (“the Act”). The Act was repealed and replaced by the Medical Practitioners Act 2004 (SA). A regulation made under the Transitional provisions of the latter Act provides that the Board was to continue to hear and to determine the complaint under the Act: see Medical Board of South Australia v N, JRP & Anor [2006] SASC 19; (2006) 93 SASR 546 at [2], [43] and [83].
The Board is established as a body corporate: s 6. Its members are appointed by the Governor: s 7(1). At least five of the eight members must be medical practitioners, and one must be a legal practitioner: s 7(2). Five members constitute a quorum: s 9(1). A decision of the Board is determined in accordance with the opinion of the majority of the members present: s 9(3). In the absence of the President, the members present decide who is to preside at a meeting of the Board: s 9(2).
I interpolate that the proceedings in question were conducted before five members of the Board, a member of the Board who is a legal practitioner presiding. This, I assume, was done in exercise of the powers conferred by s 9.
I can find nothing in the Act bearing on the manner in which the Board makes a decision, other than the provision that the opinion of the majority of members present determines the decision of the Board: s 9(3). I proceed on the basis that when the Board deals with a complaint alleging unprofessional conduct, the decision of the majority is the decision of the Board, and that it is doubtful whether the Act contemplates separate dissenting or concurring opinions. It is not necessary in this case to come to a final decision on that point. However, the point is relevant because there is no reason to assume that the decision of the Board in the present case was a unanimous decision. The absence of a dissenting opinion does not lead to that conclusion.
The functions and powers of the Board are set out in s 13. As is commonly the case in legislation of this kind, the Board is concerned with the training of practitioners, with the qualifications required for registration under the Act, and has the responsibility to maintain a register of qualified practitioners. Section 13(1) provides:
Functions and powers of the Board
13 (1) The Board shall exercise its functions under this Act with a view to-
(a)ensuring that the community is adequately provided with medical services of the highest standard; and
(b)achieving and maintaining the highest professional standards both of competence and conduct in the practice of medicine.
The Board has ample powers to compel persons to appear before the Board to answer questions, and to require the production of documents and records: s 16.
The Board cannot delegate its power to deal with a complaint alleging unprofessional conduct: s 15(1). However, by s 20A(1) the Board can authorise a member, or direct a person who is not a member, to investigate a matter that is the subject of proceedings before the Board. It is not necessary to explore the limits of this power, but clearly enough the Board has some ability to investigate matters of complexity or detail other than at a sitting of the Board.
A party to proceedings before the Board is entitled to be represented by a legal practitioner: s 18. The Board is not bound by the rules of evidence, and may inform itself as it thinks fit: s 17(1). Subject to the Act, the Board can determine the procedure that it is to follow: s 17(2). The Board is to act “according to equity, good conscience and the substantial merits of the case”: s 17(3).
Division 1 of Part 4 of the Act is headed “Proceedings before the Board”.
By s 50 certain specified persons can lay a complaint alleging that a medical practitioner has practised without having or exercising “adequate or sufficient knowledge, experience or skill”. If the complaint is made out, the Board can impose conditions restricting the right of the practitioner to practise medicine.
Similarly, by s 51 the same specified persons can raise the question of whether the ability of a medical practitioner to practise medicine is impaired by mental or physical incapacity, and if the Board is satisfied that it is, the Board can impose restrictions on the right to practise.
Section 54 is central to this case. It provides as follows:
Inquiries by the Board in relation to unprofessional conduct
54(1)    A complaint alleging unprofessional conduct on the part of a medical practitioner may be laid before the Board by -
(a)     the Registrar; or
(b)     the Minister; or
(c)The South Australian Branch of the Australian Medical Association Incorporated; or
(d)a person who is aggrieved by conduct of the medical practitioner or, where that person is a child or is suffering from a mental or physical incapacity, by a person acting on his behalf.
(2)     Where a complaint has been laid before the Board under this section, the Board must inquire into the subject matter of the complaint unless the Board -
(a)     considers that the complaint is frivolous or vexatious; or
(b)lays a complaint before the Tribunal relating to matters the subject of, or arising out of, the complaint laid before the Board.
(3)     Where a complaint has been laid under this section by or on behalf of an aggrieved person and the Board is satisfied that the complaint was laid by reason of a misapprehension on the part of the complainant or of a misunderstanding between the parties, it may, before proceeding further with the hearing of the complaint, require the parties to attend before the Registrar in order to clarify the misapprehension or misunderstanding.
(4)     Where, in the course of conducting an inquiry under this section, the Board considers that the allegations or evidence against the medical practitioner are sufficiently serious, it may terminate the proceedings under this section and itself lay a complaint against the medical practitioner before the Tribunal in relation to those allegations or that evidence.
(5)     If, after conducting an inquiry under this section, the Board is satisfied that the matters alleged in the complaint have been established, it may reprimand the medical practitioner.
Section 57 is important too. It provides:
57(1)     The Board shall give to all of the parties to proceedings under this Division not less than fourteen days' written notice of the time and place at which it intends to conduct the proceedings, and shall afford to the parties a reasonable opportunity to call and give evidence, to examine or cross-examine witnesses, and to make submissions to the Board.
(2)     If a party to whom notice has been given pursuant to subsection (1) does not attend at the time and place fixed by the notice, the Board may proceed to hear and determine the complaint or application in the absence of that party.
(3)     In the course of proceedings the Board may —
(a)receive in evidence a transcript of evidence taken in proceedings before a court, tribunal or other body constituted under the law of South Australia or of any other State or Territory of the Commonwealth or of another country, and draw any conclusions of fact from the evidence that it considers proper;
(b)adopt, as in its discretion it considers proper, any findings, decision, judgment, or reasons for judgment, of any such court, tribunal or body that may be relevant to the proceedings.
The Medical Practitioners Professional Conduct Tribunal is established by s 23. Its main function is to hear complaints laid by the Board alleging unprofessional conduct: s 58(1). The provisions of the Act relating to proceedings before the Tribunal are similar to those relating to the Board. However, the Tribunal has wider disciplinary powers than does the Board, as one would expect. The powers of the Tribunal were considered by this Court in Medical Board of SA v N, JRP & Anor.
As can be seen, the Board has limited powers to discipline practitioners. In relation to complaints alleging unprofessional conduct, it can do no more than reprimand a practitioner. If the allegations against a practitioner are serious, the Board may lay a complaint before the Tribunal without making a finding on the complaint: s 54(4). If its findings are such that a reprimand is inadequate, then it would follow that it should lay a complaint before the Tribunal. This aspect of the functions of the Board is considered by this Court in AYHT v Medical Board of South Australia [2000] SASC 136; (2000) 77 SASR 148.
The Board has ample powers to obtain information in connection with a complaint, and some flexibility in the way in which it deals with a complaint. The Board must act fairly towards persons who are parties to proceedings, but what that will require will depend on the circumstances of the case.
A number of provisions refer to parties to proceedings before the Board: for example, s 18. The provisions of s 57 indicate that parties are entitled to participate actively in proceedings before the Board. It is also apparent that the disciplinary powers and functions of the Board under s 54 are enlivened only by the laying of a complaint before the Board. The Board must inquire into the subject matter of the complaint: s 54(2). The complaint sets the scope of any inquiry by the Board. It is clear that the complainant and the subject of the complaint are to be regarded as parties to the proceedings: see, for example, s 54(3).
While much of the language of the Act suggests an adversarial process in which there is an allegation made by a complainant, against the subject of the complaint, and a case presented and resisted, the relevant provisions taken together lead to the conclusion that the Board is not required to proceed on the basis that a complaint is a contest between the complainant and the subject of the complaint, and that the Board presides over the hearing of that contest in the same manner as would a court. The power of the Board to determine its own procedure, and the duty of the Board to inquire into the subject matter of a complaint, and other provisions, suggest that the Board is not limited to what might be called the traditional adversarial method, although s 17(2) requires that it must always comply with the Act, and except where the Act otherwise provides, it must accord procedural fairness to the parties.
An issue in the present case is the significance of the requirement in s 54(2) that “the Board must inquire into the subject matter of the complaint”. The same formula is used in s 50, and in relation to the Tribunal in s 58(2). Submissions advanced by Mr Game rely on this provision as imposing on the Board a duty in all cases to undertake its own inquiries except, I assume, to the extent that a complainant is willing to provide relevant information to the Board and does so. I will return to this topic.
Mr Game also submitted, and Mr Swan (counsel for Dr Manock) did not dispute the submission, that for the purposes of judicial review the Board is to be regarded as a tribunal, and not as a court. The significance of this is that the concept of jurisdictional error, or error of law that will invalidate a decision made under a statute, is wider in relation to tribunals than it is in relation to a court: Craig v South Australia (1995) 184 CLR 163. In particular, whereas an error of law by a court will not usually give rise to jurisdictional error, or to an error that invalidates a decision, the contrary is usually the case in relation to an administrative tribunal: Craig at 179. As the majority in Craig went on to say at 179:
… If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. …
The same point was made by McHugh, Gummow and Hayne JJ in Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82], where they said:
[82]"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. … (footnote omitted)
Moreover, a failure to accord procedural fairness will also have the effect of invalidating a decision by an administrative tribunal: Craig at 175-176; Re Refugee Tribunal; ex parte AALA [2000] HCA 57; (2000) 204 CLR 82 at [5] Gleeson CJ; at [41] Gaudron and Gummow JJ; at [142] Kirby J; at [170]-[171] Hayne J; at [218] Callinan J.
Did the Board pose the wrong question?
The issue for the Board was whether the Board was satisfied that the manner in which Dr Manock carried out the autopsy, or the basis upon which he formed and expressed his opinion about the cause and manner of death, or the manner in which he gave expert evidence in the proceedings against Mr Keogh, amounted to unprofessional conduct for the purposes of the Act.
On each of these matters Mr Keogh put before the Board various criticisms of Dr Manock’s conduct. The Board was concerned only with the criticisms that were the subject of the complaint made to it.
The Board had to consider the criticisms of Dr Manock’s conduct, and if any of them were made out, then had to consider whether the conduct amounted to unprofessional conduct.
Unprofessional conduct is defined in s 5(1) of the Act as follows:
"unprofessional conduct" includes -
(a)     improper or unethical conduct in relation to the practice of medicine; and
(b)     incompetence or negligence in relation to the practice of medicine; and
(c)     a contravention of or failure to comply with -
(i)    a provision of this Act; or
(ii)a condition imposed by or under this Act in relation to the registration of a medical practitioner under this Act.
The complaint in the present case appears to rest mainly on subpara (b) of the definition, that is on the question of “incompetence or negligence”. The complaint is that Dr Manock departed from the appropriate or proper standard of professional practice or procedure. Hereafter, for convenience, I will refer only to those two concepts. But I emphasise that the duty of the Board was to consider the expression “unprofessional conduct”, as a whole, in its application to each criticism that it found was made out.
The Board referred to the statutory definition early in its reasons when it was identifying the complaints that were laid before it.
When the Board came to consider the meaning of unprofessional conduct, it referred to observations made by this Court in In re R, A Practitioner of the Supreme Court [1927] SASR 58 at 60-61 where the Court said:
In our view “unprofessional conduct” is not necessarily limited to conduct which is “disgraceful or dishonourable”, in the ordinary sense of those terms. It includes, we think, conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency.
In that case the Court was considering the meaning of the term “unprofessional conduct” used without any statutory definition in legislation relating to the legal profession. The Court was making the point that “unprofessional conduct” was wider than “professional misconduct”, an expression used in English legislation.
The Board said that this “test” had “acquired almost legislative force”. The Board’s reasons indicate that it used this test as the basis of its decision, because it then posed for itself the question of whether Dr Manock’s conduct amounted to a departure to a substantial degree from the conduct that would have been observed or approved by members of his profession of good repute and competency. The Board then said at para 21 of its reasons:
21The touchstone in this assessment is the prevailing standards as observed or approved by Dr Manock’s peers. Whilst legal notions of gross negligence may be helpful analogies, it is the standard set by his peers, and what is considered as a departure from that standard to a substantial degree, that is determinative of the issue. cf. F v R (1983) 33 SASR 189 at 194.
Unfortunately, the Board has failed to apply the correct test of unprofessional conduct.
The statutory definition of unprofessional conduct is an inclusive one. I have no doubt that unprofessional conduct will include conduct that falls within the test articulated in In re R, A Practitioner. In this way, personal conduct unrelated to medical practice will be caught. That was the point made by Duggan J in Reyes v Dental Board of South Australia [2002] SASC 239; (2002) 83 SASR 551 at [25]-[33].
But the terms of the Act make it clear that unprofessional conduct for the purposes of the Act includes conduct that amounts to “incompetence” or to “negligence”. The meaning given to the undefined expression “unprofessional conduct” by this Court in In re R, A Practitioner cannot be used to control the statutory meaning of unprofessional conduct, or to override that meaning, at least in a case that is concerned with an allegation of incompetence or negligence, as distinct from a complaint that raises “improper or unethical conduct”: cf Coote v Medical Board of South Australia [1999] SASC 394; (1999) 204 LSJS 459 at 473-474 Duggan J.

That is not to say that the concepts expressed by this Court in In re R, A Practitioner have no work to do in relation to a complaint of “incompetence or negligence”. Recognised professional standards and practices will provide a guide in considering what amounts to incompetence or negligence in relation to the practice of medicine. A trifling or harmless departure from recognised professional standards probably is unlikely to amount to unprofessional conduct for the purposes of the Act. But it is one thing to use prevailing standards as a guide when considering whether conduct amounts to unprofessional conduct, and another thing to treat prevailing standards as “determinative”, as the Board did.
In short, the Board’s reasons indicate that it has substituted the test articulated in In re R, A Practitioner for the statutory test. It has applied a narrower test than it should have applied. It has not considered whether the conduct complained of amounts to “incompetence or negligence in relation to the practice of medicine”: cf Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 199-200 where Kirby P refers to the distinction between negligence and “misconduct in a professional respect” in a different legislative context.
Instead of asking itself whether particular conduct on the part of Dr Manock amounted to incompetence or negligence, making due allowance for accepted professional standards, the Court treated those standards as decisive of the issue. The Board’s approach gives rise to a risk that it failed to give due weight, in particular, to the reference to “incompetence or negligence”.
In the passage from its reasons set out above the Board referred to the decision of this Court in F v R (1983) 33 SASR 189. It seems to have contrasted its approach with that taken in F v R. That was an action against a medical practitioner claiming damages for negligence, the substance of the complaint being that the practitioner had failed to advise his patient that the operation that she was proposing to undergo had a certain failure rate, regardless of the skill with which the operation was performed. In the course of his reasons King CJ made the point that when considering a complaint of medical negligence approved professional practices may prove to be decisive, but that the Court must nevertheless scrutinise professional practices to ensure that they accord with the standard of reasonableness imposed by law. He said at 194:
The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.
This approach was subsequently approved by the High Court in Rogers v Whitaker (1992) 175 CLR 479 at 487-488 and at 492-493. F v R was, of course, an action for damages, and was concerned with the obligation of a medical practitioner to advise the practitioner’s patient in relation to a proposed medical procedure. But in my respectful opinion the point made by King CJ is relevant to the present case. This is not because the reference to “negligence” in the definition of “unprofessional conduct” is to be given the same meaning as negligence in the law of torts. Negligence is not tortious unless loss or damage is caused. There is no reason to think that when defining unprofessional conduct Parliament was limiting “negligence” to conduct that causes loss or damage. Parliament must have had in mind conduct that amounted to a failure to take reasonable care. But when considering that question, and equally when considering whether conduct amounts to incompetence or negligence, the Board must have regard to a standard of competence and a standard of reasonable care that is not to be determined entirely by approved or recognised professional practices. It would be open to the Board to find that conduct amounted to incompetence or negligence even though the conduct accorded with recognised professional standards, or with standards observed by a responsible body of opinion in the profession. The Board would so find if it found that those standards were inadequate.
It follows that the Board should not have treated professional standards as determinative, as distinct from influential.
I should add that in this State the decisions in F v R and Rogers v Whitaker have to some extent been overtaken by legislation: see s 40 and s 41 of the Civil Liability Act 1936 (SA). Section 41 appears to have reinstated as a relevant benchmark the fact that a person “acted in a manner that … was widely accepted in Australia by members of the same profession as competent professional practice”. However, these legislative provisions apply only to an action for damages for negligence, and not in the area of professional discipline, although there might be some interaction between the two.
The main point to be made in the present case is that the Board has departed from the statutory expression, and has substituted an approach developed by the Courts when dealing with legislation that did not define “unprofessional conduct”. The Board has not addressed directly the question of “incompetence or negligence” that amounts to “unprofessional conduct”.
The Board’s method of reasoning led it into a related and further error.
The Board said that in 1994 “there were no established national standards for best practice for forensic pathology …”. However, the Board said that Dr Oettle’s report (referred to above) satisfied the Board that “the State Forensic Science Centre met international standards in 1994”: at [25]. That led the Board to say at [27]:
[27]The Board sees no reason as to why it cannot rely upon the usual practices of those forensic pathologists working at the Centre in 1994, accepted and observed by interstate peer practitioners, as represented by Dr Oettle’s opinion, as being of the appropriate professional standard at that time. The issue then becomes whether Dr Manock’s conduct fell substantially short of those usual practices.
In short, having decided that Dr Oettle’s report established that the practices at the Centre met international standards in 1994, the Board then used the “usual practices” at the Centre as the benchmark by which to measure Dr Manock’s conduct.
The Board then apparently relied to a substantial degree on the evidence of Dr James, another forensic pathologist employed at the Centre at the time. He had been asked by the Director of Public Prosecutions to review Dr Manock’s evidence at the committal hearings against Mr Keogh. As Mr Game said, and correctly in my opinion, one would expect Dr Manock to have influenced the standards observed at the Centre, having regard to his senior position. The Board had reasoned to a position in which standards that one would expect to be influenced by Dr Manock’s own practices became the benchmark against which his conduct was to be measured in this particular case.
This highlights the danger inherent in a failure to pose the direct question of whether, in any respect identified in the complaint, Dr Manock’s conduct amounted to incompetence or negligence bearing in mind, but not controlled by, an understanding of what was required by accepted professional standards in 1994.
To ask whether Dr Manock failed to observe the “usual practices” at the Centre was to ask a different question, and one which does not necessarily lead to the same answer. It appears to me that the Board’s approach also gave rise to a real risk that Dr Oettle’s general endorsement of standards applied at the Centre was then inappropriately applied when considering specific criticisms made of Dr Manock’s work and opinions. It is not easy to see how a general endorsement of standards at the Centre can be used to establish a basis for considering specific criticisms, as the Board seems to have done.
I will return later to the criticism made by Mr Game of the fairness of the Board’s use of Dr Oettle’s report.
When the Board considered the opinions expressed by Dr Manock as to the cause of death, and as to the manner of death, the Board moved to an aspect of Dr Manock’s conduct not dealt with by Dr Oettle in his report. As to Dr Manock’s opinion as to the cause of death (fresh water drowning) the Board said at [34]:
However, the Board is not able to say that the view based upon case studies at the Centre has been shown in this Inquiry to be untenable.
I consider that this reasoning reflects an error. The issue was not whether Dr Manock’s opinion (which was based on experience at the Centre as to the significance of the presence of “differential aortic staining”) was untenable. The question was whether that opinion, in all the circumstances (including a suggested lack of support for Dr Manock’s opinion in recognised professional texts) was given on a basis, or in circumstances, that amounted to incompetence or negligence.
I emphasise, once again, that it is not for me to determine whether or not the Board’s ultimate answer was right or wrong. My role is to determine whether the Board’s approach to the issue was wrong in law. What the Board did was to consider whether, based on experience or “case studies” at the Centre, Dr Manock’s view was shown to be untenable. The question was whether as a matter of proper professional practice it was appropriate for Dr Manock to express the opinion that he did on the basis that he did. And, as I have already said, that basis included the fact, if it be the fact, that the significance attributed by him to differential aortic staining was not supported by relevant professional literature.
The Board then turned to the opinion expressed by Dr Manock to the effect that the drowning was deliberate. The Board referred to some of the circumstantial evidence and said that it was open to Dr Manock to conclude that Ms Cheney’s drowning was deliberate: at [36]. The Board then added that there was some support for Dr Manock’s theory, and said:
These matters have been subjected to the full scrutiny of the criminal justice process.
In this respect the Board failed to address the substance of the complaint against Dr Manock. The fact that Dr Manock had been cross-examined at the trial on his opinion as to the cause of death and his theory as to the method of death, and that appeals against the conviction had failed, was of limited relevance to the question of whether, in expressing the opinions that he did express, Dr Manock’s conduct amounted to incompetence or negligence. The issue was not whether Dr Manock’s opinion had been exposed to scrutiny at the trial, or even whether it had been criticised there, and to what effect. The issue was whether, in expressing the opinion that he did in the circumstances that he did, Dr Manock acted in a manner that amounted to incompetence or negligence. While the precise significance of the remark just quoted is not clear, it indicates that the Board treated the fact that Dr Manock’s opinions had been scrutinised at trial, and apparently not been shown to be inadequate, as a reason to conclude that the complaint of unprofessional conduct was not made out in that respect. That, in my opinion, did not deal with the real thrust of the complaint.
In summary, having regard to its reasons the Board has applied too narrow a test of unprofessional conduct. It has failed to give appropriate weight to the statutory language, which gives “unprofessional conduct”, a wider meaning than was attributed to it by the Full Court in In re R, A Practitioner. That led the Board to treat prevailing professional standards as determinative of the issue, when those standards were to be used as a guide, without being definitive. The Board’s approach led it to treat the prevailing practices at the Centre, practices likely to have been influenced by Dr Manock’s own work, as the benchmark against which to consider the complaints made to it. In relation to the opinions expressed by Dr Manock, the Board appears to have wrongly limited its enquiry to the question of whether the opinion as to the cause of death was “untenable”, based only on a consideration of experience at the Centre, as distinct from a consideration of accepted professional standards. And the Board appears to have treated the fact that Dr Manock’s opinions were scrutinised at trial as in some way (not made clear) answering the criticisms of their basis and of the opinions themselves.
For these reasons I am satisfied that the Board failed to ask itself the right question. It has made an error of law which, in terms of the case law, is to be treated as a jurisdictional error that invalidates the decision of the Board.
Were I able to say that the error made by the Board could not have affected its decision, it might have been open to me to conclude that the decision should not be quashed. However, to the contrary, I am satisfied that the error made had the potential to lead the Board to the wrong conclusion, and so on this basis an order quashing the decision must be made.
The Board’s conduct of the Inquiry
At an early stage of the proceedings before the Board counsel for Mr Keogh submitted that as the Board has received a complaint by an aggrieved person alleging unprofessional conduct, it was the duty of the Board to initiate and to carry through its own inquiry into the subject matter of the complaint. He submitted that he would provide such information as Mr Keogh could, relevant to the inquiry. He submitted that it remained the duty of the Board to exercise its statutory powers and to investigate the subject matter of the complaint, and to bring before itself such material, including expert opinion, as it might require to decide whether the complaint had been established.
The presiding member said that the complainant must provide whatever information he relied on, and that it was not for the Board to supplement that material. In its reasons the Board said:
[5]The Board is of the view that, particularly where a section 54(1)(d) complainant is represented by experienced counsel, the inquiry should be directed to the allegation set out in the complaint. Where a section 54 complaint has been laid, the Board’s usual role is to adjudicate upon the matters raised by the parties, rather than embark upon its own investigations and enquiries. If it is aware of other information that might bear on the issues, it would bring that to the attention of the parties.
Mr Game submits that in so deciding the Board made an error of law, and that as a result it has failed to exercise its jurisdiction to “inquire into the subject matter of the complaint”. For this reason the decision should be quashed, and the Board should be directed to inquire into the subject matter afresh.
Mr Game also complains that when the Board sat on 3 November 2004, after two preliminary hearings and some other preliminary exchanges, the presiding member announced that the Board could sit for two days only, and asked counsel to ensure that the relevant material was covered in that time. Mr Game complains that the imposition of the time limit was unfair, and deprived counsel for Mr Keogh of the time required to present the material supporting the complaint. He also submits that because of this ruling the Board did not in fact inquire into the subject matter of the complaint, but limited itself to considering the material presented by Mr Keogh and by Dr Manock in the available time.
He complained separately that the time limit was arbitrary and irrational, and so did not represent a proper exercise of any power the Board might have to control the length of the proceedings.
Finally, Mr Game complains that the Board failed in its reasons to deal with several aspects of the complaint. I summarised the matters on which this submission is based above at [23] to [25].
As to the first of these complaints, it is true that the Board required Mr Keogh to make good his complaint. No particular line of inquiry has been identified that it is said the Board should have pursued but did not pursue. I am not in a position to say that there was a relevant line of inquiry that Mr Keogh did not or could not pursue, and that the Board declined to investigate. However, I accept that it is fair to say that the Board required Mr Keogh to make good his complaint, in the sense that the Board indicated that if he failed to substantiate the complaint the Board would dismiss the complaint. There is no indication in the Board’s reasons that, before dismissing the complaint, the Board considered whether there might be other information available that it had power to obtain, and that might support the complaint.
As to the second of these complaints, the course of the hearing indicates that the Board did not insist absolutely on the two day time limit. In fact, the proceedings went into a third day. Along the way the transcript indicates that the Board was willing to consider requests for further time, but no such requests were made. The Board indicated that it was willing to meet requests of counsel within reason. However, it is again fair to say that counsel for Mr Keogh appears to have done his best to tailor the complainant’s case to the time limit fixed by the Board.
As to the third complaint, I agree that the particular matters relied upon are not referred to specifically in the Board’s reasons.
I return to the first complaint.
I consider that the Board was entitled to require Mr Keogh to present the material that he relied upon to support his complaint, on the basis that if that material did not establish the grounds of complaint, the complaint might be dismissed. The provisions of the Act do not lead to the conclusion that when conducting proceedings under s 54 the Board must assume the responsibility for assembling and presenting the relevant evidence in support of or in opposition to the allegations made, subject only to such evidence as the parties might choose to present. The Board is not obliged to conduct an inquiry into the subject matter of a complaint in the manner in which, for example, a coroner conducts an inquiry into the circumstances of a death.
It is significant that the powers under s 54 are enlivened only by the laying of a complaint, in this case by an aggrieved person. The complaint, or the subject matter of the complaint, sets the scope of the proceedings that follow. The language of s 54 is consistent with the notion that the complainant will support the allegations made. The Board is to hear the complaint: s 54(3). It considers “allegations or evidence against the medical practitioner”: s 54(4). I do not suggest that this language is decisive, and I do not overlook the reference to inquiring into the subject matter. As well, s 57 indicates that the “parties” are to play a significant part in the conduct of the proceedings. There is nothing in these provisions inconsistent with the Board conducting the inquiry in the manner in which it did.
Granted, the Board has powers which could be used to enable the Board to investigate the subject matter of a complaint. I refer in particular to s 20A. But these powers may well reflect the fact that the Board is itself to be the complainant before the Tribunal, and then it may need to carry out an investigation. As well, the powers of the Board appear to extend to the Board investigating matters that have not been brought before it by complaint, with a view to deciding whether a complaint should be made to the Tribunal, and with a view to prosecuting that complaint if it is made. These powers that could be used in an investigatory manner do not lead to the conclusion that the Board must do so when a complaint is laid before it.
By s 16 the Board has power to require the attendance of witnesses, and to require the production of documents. I recognise that these powers could be used by the Board to bring evidence before it of its own motion. But once again, there is nothing to indicate that the Board must use these powers in this way. And the powers are conferred in terms found in legislation dealing with bodies that proceed in an adversarial manner.

I do not attribute any particular significance to the fact that s 54(2) requires the Board to inquire into the subject matter of the complaint. To my mind that language is neutral in the present context.
There is nothing in these provisions which supports Mr Game’s submission. The ultimate answer to his submission, in my opinion, lies in s 17(2), which gives the Board power to determine how it will proceed. It would be inconsistent with that provision to hold that the Board must assume responsibility for the collection and presentation of material relevant to a complaint laid under s 54, unless other provisions of the Act led to that conclusion, and in my opinion they do not.
The Act gives the Board power to determine how it will proceed, subject to particular provisions of the Act, and subject to its duty to accord procedural fairness. As I have said, in my opinion there is no provision of the Act which, alone or taken with other provisions, leads to the conclusion that the method of proceeding must be of the kind submitted by Mr Game.
For those reasons it is open to the Board to determine that when a complaint is made under s 54, it will proceed as it did in this case. It is not inconsistent with the provisions of the Act to do so. In most cases under s 54 that will be a convenient and efficient way to proceed.
In the present case, counsel for Mr Keogh had material to support the complaint. The complex and lengthy history of the matter was such that it was appropriate for the Board to call on Mr Keogh to present his case. His advisors had detailed knowledge of the background, and had formulated detailed complaints. There was nothing in the particular circumstances of the case to make it inappropriate to proceed in the manner in which the Board did. I am not persuaded that, once Mr Keogh had presented his case, the circumstances called for the Board to undertake further investigation of the subject matter of the complaint.
Having regard to the provisions of the Act, it is open to the Board in any case, if it considers it appropriate to do so, to investigate aspects of a complaint laid before the Board. There might be aspects of a complaint not pursued by the person who lays the complaint, for one reason or another, that the Board considers should be investigated. The Board is not limited by the Act to the role of adjudicating on the material presented by the complainant. But it is another thing to say that the Board must assume the ultimate responsibility for the presentation of the relevant material, or routinely consider whether there is any way in which it can supplement the material presented by the complainant. The cases in which it would be appropriate for the Board to do so will be rare. The only point I make is that the Board is not necessarily confined to considering the material presented by the complainant. I add, so that it is not overlooked, that at all times the Board must be mindful of the rights of both parties, and this includes the need to accord procedural fairness to the medical practitioner the subject of a complaint.
For those reasons I conclude that the Board did not err in deciding to proceed as it did. It had the power to do so, and there was nothing in the circumstances to make it inappropriate to proceed as it did. The Board is entitled to treat this method of proceeding as its usual approach. It is not obliged to proceed in this way in every case, and there may be cases in which it is appropriate to use its powers to bring before it material not presented by the parties. It was not obliged to do so in the present case.
I do not accept the first submission made by Mr Game under this heading.
Nor do I agree that the Board was not entitled to impose a time limit on the proceedings. The power conferred by s 17(2) includes the power to exercise control over the length of proceedings, as well as over the form of the proceedings. The exercise of that power is subject in particular to s 57(1) (above), and is subject to the obligation to treat the parties fairly. The Board must allow sufficient time for the hearing of a complaint, having regard to the subject matter of the complaint, the resources of the parties, the nature of the evidence to be presented and other like matters.
It is not for this Court to control the exercise of the Board’s power to regulate its own proceedings. The exercise of that power will give rise to an error of law only if the power is exercised to deny a party a fair hearing, or if the decision made by the Board is shown to be arbitrary or irrational, and so not a proper exercise of the power to control proceedings.
Having heard the submissions by both parties, I am not persuaded that the time allowed by the Board did not give Mr Keogh “a reasonable opportunity” to present his case. The Board is an expert body, and has powers that enable it to proceed more flexibly and expeditiously than can a court following traditional court procedures. It may be that the Board would have been wise to allow more time for the cross-examination of Dr Manock. But in these proceedings it is not my role to agree or disagree with the time limit fixed by the Board. I can interfere only if I am satisfied that the Board infringed the requirements of s 57(1), or failed to treat the complainant fairly, or acted irrationally or arbitrarily and so did not properly exercise its power.
I accept that counsel for Mr Keogh before the Board wanted more time, in particular more time to cross-examine Dr Manock. However, having been referred to the transcript in some detail by the parties, and having had an opportunity to reflect on the course of the proceedings, I am not satisfied that the Board erred in the manner suggested by Mr Game. In particular, I do not agree that the Board made an arbitrary or irrational decision. During the course of the hearing there are indications that the Board was willing to allow a modest extension to the time, should a particular need to do so be identified. None was. It is also pertinent to bear in mind that the parties provided written submissions at the conclusion of the hearing, in addition to oral submissions.
To conclude, while to some the time limit imposed might seem somewhat restrictive, I am not persuaded that in acting as it did the Board erred in law.
That leaves the question of the matters with which the Board did not deal expressly in its reasons.
The Board was not obliged to refer in its reasons to every complaint made by Mr Keogh. Some of the matters about which Mr Game complains may be covered by some of the generally expressed parts of the Board’s reasons. I have already indicated that, in my opinion, the Board’s treatment of the criticisms of Dr Manock’s evidence at the trial was not adequate. I consider that there is some force in Mr Game’s complaint about the omitted matters, without, as I have already said, accepting that it was necessary for the Board in its reasons to refer to each and every item. As I have decided in any event that the decision of the Board must be set aside, and the matter further considered, the omitted matters can be left there.
Dr Oettle’s report
The Board received in evidence a detailed affidavit from Professor Thomas. The affidavit contained criticisms of Dr Manock’s autopsy and opinions. Dr Thomas also gave oral evidence. The Board did not accept in evidence certain paragraphs of the affidavit that refer to a report prepared by Professor Thomas in 1994. The report reviews autopsies conducted by Dr Manock on three infants who died in 1992 and 1993. The report is not before me. I understand that it is critical of Dr Manock’s work. The Board also declined to receive a copy of findings by the Coroner, published in August 1995, in which the Coroner is said to have been critical of Dr Manock’s conduct of these autopsies. The Coroner’s findings are not before me. In rejecting the tender of this material the Board accepted a submission by counsel for Dr Manock that the conduct of the autopsies on the infants was irrelevant to its inquiry.
The members of the Board asked a number of questions of Professor Thomas, of another witness Dr Collins, and of Dr Manock, about recognised and accepted standards of forensic pathology in 1994.
In the re-examination of Dr Manock, his counsel alluded to this topic, referred to a review of procedures at the Centre carried out by Dr Oettle in 1994, and asked Dr Manock whether Dr Oettle found that the “reports of the various pathologists … were comprehensive and reflected internationally accepted forensic standards”. Dr Manock assented to this proposition.
Counsel for Mr Keogh immediately asked for leave to cross-examine further. He suggested to Dr Manock that Dr Oettle’s report was “severely criticised” in findings by the Coroner. Dr Manock said that he did not know. A member of the Board then asked if the Board could see Dr Oettle’s report, and counsel for Mr Keogh raised no objection, saying “as long as you also see the corresponding comments from the Coroner”. The presiding member then invited counsel to “put any further written material in front of us when you make your submissions”. The transcript suggests that Dr Oettle’s report was then produced to the Board and identified.
The evidence before me does not disclose what further material or submissions counsel for Mr Keogh put before the Board on this point.
The Board referred to this matter in its reasons, and said:
[24]… Mr Borick was invited to put further written material that may qualify the report, in submissions. Although the report was referred to in his final written submissions, no adverse comment was proffered, and no application was made to call further evidence or recall witnesses.
As I have already noted, the Board went on to rely on Dr Oettle’s report in concluding that the practices at the Centre in 1994 met international standards: see [27] of the Board’s reasons, set out above.
Having regard to what is recorded in the transcript, and what the Board said in its reasons, I am not satisfied that the Board acted unfairly in relying on Dr Oettle’s report as it did. There may have been some misunderstanding between counsel for Mr Keogh and the Board as to the use that might be made of Dr Oettle’s report, but counsel had an opportunity to put written submissions on the matter.
It cannot be said that if the Board proposed to rely on Dr Oettle’s report as it did, that considerations of fairness demanded that it reverse its decision to reject the tender of the Coroner’s findings. That would turn upon the terms of those findings (which are not before me) and the extent to which, if any, the Coroner’s findings in relation to particular autopsies affected Dr Oettle’s report relating to general practices.
It is important to bear in mind that the Board used Dr Oettle’s report to support a finding about practices at the Centre in 1994. Earlier in my reasons I have explained how, in my opinion, this use of Dr Oettle’s report led it into error. But for present purposes the relevant point is that the report of Dr Oettle was not used to answer specific criticisms made of Dr Manock’s practice and methods, but only to establish that standards at the Centre accorded with international standards. There is nothing before me to indicate in any way whether or not the Coroner made any finding on that point.
There are a number of aspects of this issue that remain unclear. However, in all the circumstances I do not propose to invite the parties to re-open their cases on this point. I add that after submissions were complete I sought information from the parties on some aspects of this issue, and even then neither party applied to re-open its case, counsel for Mr Keogh going no further than to state that if I wished to hear further evidence on the matter, an application would be made to re-open Mr Keogh’s case.
Mr Game also submitted that the use made by the Board of Dr Oettle’s report was “illogical”, because it drew an inference from a conclusion about practices at the Centre to rebut particular complaints. As he said, the fact that practices at the Centre met international standards in 1994 had no particular bearing on the question of whether Dr Manock made the particular errors of which complaint was made.
However, the Board did not reason in this way. It reasoned that the report established that practices at the Centre met professional standards, and then as a separate step that Dr Manock’s conduct complied with the Centre’s standards.
The circumstances in which an error in making a finding of fact might amount to an error of law has been considered by the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 and in Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59.
Neither counsel put any submissions to me based on these decisions. In the circumstances, it is not appropriate for me to explore the intricacies of this issue.
It suffices to say that on the material before me I am not satisfied that the Board’s finding of fact based on Dr Oettle’s report, including the fact that that finding was made without reference to the Coroner’s findings, means that the decision that the Board reached discloses an error of law because the conclusion reached was not reasonably open on the material before the Board, or was perverse or illogical. Assuming that the Coroner made criticisms of Dr Manock’s conduct in the course of particular autopsies (and I emphasise that the Coroner’s findings are not before me), that does not necessarily undermine a finding that practices at the Centre in 1994 accorded with international standards, because such a finding refers to practices generally. Nor am I by any means satisfied that the circumstances are such that the Board’s decision can be said to be irrational, in the sense that it was not made according to law: see Applicant S20 at [9] Gleeson CJ. Nor am I satisfied, on the material before me, that the only conclusion reasonably open to the Board, on the material before it, was a conclusion differing from that which it reached. In short, I am not persuaded that the Board’s reasoning, even if it was faulty, was such that its finding was erroneous in law.
I add, so that it is not overlooked, that the attack here is directed towards an intermediate finding, and not to the ultimate finding that none of the complaints of unprofessional conduct were made out. That is a matter that also would call for consideration, were this aspect of the case to be explored further.
Once again, it is appropriate for me to emphasise that I am not sitting on appeal from the findings of the Board. My function is not to determine whether they are right or wrong, but whether they disclose an error of law of a kind that goes to the jurisdiction of the Board, and invalidates the decision reached.
I do not accept Mr Game’s submissions on this matter.
Memoranda exchanged between the Board members
During the hearing before me Mr Game tendered four documents which, I find, are memoranda prepared by three of the five Board members (one member prepared two memoranda) setting out their views on aspects of the complaint before them. I find that the memoranda were circulated among the Board members to assist the members in arriving at a decision. The first memorandum was prepared after the completion of the evidence and before final submissions. The others were prepared between the completion of the final submissions (on 17 December 2004) and the date of the last of the memoranda (16 March 2005). The Board gave its decision on 22 June 2005.
Mr Swan objected to the admission of the documents into evidence. I reserved my decision on the tender.
It suffices to say that the memoranda, which I have read so that I can understand the arguments, indicate that at the time of writing the authors considered that in a number of respects Dr Manock’s conduct of the autopsy did not accord with then prevailing and acceptable professional standards. Some fairly firm views are expressed. It is also the case that the criticisms made of Dr Manock in the memoranda do not appear in the Board’s reasons. The reasons of the Board contain conclusions that differ from a number of the views expressed in the memoranda.
However, not all of the material in the memoranda is adverse to Dr Manock, nor does all of the material in the memoranda conflict with the conclusions reflected in the Board’s reasons. There is no reference to Dr Oettle’s report in the memoranda. The conclusion drawn from that report, that standards at the Centre in 1994 conformed with international standards, might have influenced the approach of members to a number of the issues canvassed in the memoranda.
Mr Game submits that as these memoranda were prepared by a majority of the Board (three of the five members) and as they appear to represent concluded views by the authors, these memoranda should be regarded as a firm and final decision by them on the complaint. They are therefore, he argues, a decision of the majority of the Board for the purposes of s 9(3) of the Act and should be declared to be the decision of the Board.
I reject that submission. There is no basis for a conclusion that the memoranda reflect what might be called a fixed and final decision on the complaint by Mr Keogh. Indeed, the memoranda indicate that they are circulated to assist the decision making process. There is simply no reason to treat these memoranda as if they were an opinion expressed by each of the relevant members for the purpose of reaching then and there, as it were, a majority opinion for the purposes of s 9(3) of the Act.
I am quite satisfied that the memoranda were circulated for comment and discussion. They are not concluded decisions.
Mr Game also submitted that the reasons that the Board gave for its determination reflect what he called an “inexplicable volte face” or, as I would put it, an unexplained and substantial change of approach, when compared with the memoranda. He submits that I should infer from this that a jurisdictional error has been made. I should infer either that the Board has taken into account some new matter that it has not disclosed to Mr Keogh or his advisers, or that the Board took into account some irrelevant consideration, or that the Board has acted illogically or unreasonably, or that the Board has made a fraudulent decision, which appears to mean an unprincipled or unreasoned departure from an already and properly reached conclusion. Echoes of some of the other submissions advanced by Mr Game can be heard in these submissions.
I have decided that I should admit the memoranda as exhibits, and accordingly they become exhibit P9. I admit also the related communications from staff of the Board, which become exhibits P10 and P11.
The Board might have been entitled to refuse to produce the memoranda, on the basis that they were immune or protected from disclosure on the grounds that their disclosure would be contrary to the public interest. That is, the Board might have declined to produce the documents on the basis of public interest immunity.
The basis for such a claim would be that it is contrary to the public interest to require members of the Board, when hearing a complaint under s 54, to disclose on an individual basis the process by which they reasoned to the conclusion reflected in the reasons of the Board. It may be that the Board and its members can be obliged to do no more than to provide those reasons that have been supported by a majority of the Board when making their decision under s 54 and s 9(3) of the Act.
If the Board members are obliged to disclose memoranda of this kind, I see no reason why Board members could not be called as witnesses and questioned about the process of their reasoning, and how and why they came to join in a majority decision.

Exposing Board members to this kind of scrutiny is likely to inhibit open and full discussion between Board members, and to give rise to unproductive and inhibiting scrutiny. Board members are to be encouraged to do what they did here, namely, to share their views on the outcome of a matter before them, and to discuss those views. They should be able to do so without facing the prospect of having to justify changes of view, or run the risk of a court drawing an adverse inference if they do not explain how and why they came to change their view.
There are decisions suggesting that a claim of public interest immunity in a case like this might succeed: see Roylance v General Medical Council (No 2) [2000] 1 AC 311 at 323-325, and the cases referred to in the note of the decision of Simon Brown J in Re C & P [1992] Crown Office Digest 1-92 at 29.
The possibility of a claim of public interest immunity was touched on only briefly before me. I recognise that it raises some difficult issues. The Board is not a court, but a statutory decision maker. When judicial review is available in relation to a statutory decision maker it often enables the scrutiny of materials that would not be able to be scrutinised if the decision was made by a court. Accordingly, I leave the issue of public interest immunity there, without expressing a concluded view.
The reason why the issue received little attention before me is that Mr Keogh’s advisers had the memoranda before the hearing began. Substantial parts of the memoranda are pleaded in the Statement of Claim. It emerged, when I sought further information, that the memoranda had been voluntarily provided by the Board at an earlier stage of the proceedings as part of a process of informal discovery.
At the beginning of the hearing before me Dr Bleby appeared for the Board to indicate that the Board would submit to such order as the court might make. At my request he returned to the hearing and confirmed that the memoranda were disclosed and provided voluntarily, and that the Board had made and still made no claim of public interest immunity, of privilege or of confidentiality.
True it is that public interest immunity cannot be waived if it attaches to a document: see the discussion in Cross on Evidence (7^th Australian edition, Butterworths 2004) at [27005]. However, the documents have been handed over, and are in the public arena, through the Statement of Claim. It is no longer a question of whether the documents should be provided. There is no point now in trying to undo what has been done: cf Trevorrow v South Australia (No 4) [2006] SASC 42; (2006) 94 SASR 64 at [63] Doyle CJ, and at [168] White J.
Having regard to the circumstances in which the memoranda were produced I find, as I have already said, that the documents were prepared by the Board member named on each document at about the time indicated by the document. If evidence of the process of deliberation on the complaint is admissible, then the memoranda are admissible as evidence of that process. Their source and authenticity is admitted by the Board. The Board makes no objection to their production and use. On the hypothesis that I have stated, the memoranda are admissible against the Board, which is a defendant in the proceedings. There is no need to consider whether they are business records for the purposes of the Evidence Act.
For that reason I have decided that the memoranda should be admitted as exhibits.
However, it is important to understand that the memoranda are not admissible as proof of the Board’s reasons for the decision that it made. Nor are they admissible to supplement or to detract from those reasons. The published reasons are the reasons of the Board for the decision reached under s 9(3) of the Act. The decision of the Board is a corporate decision. It is not necessary to decide, but I doubt whether individual members of the Board can publish individual, concurring or dissenting decisions. My tentative view is that the Act requires the Board to arrive at a corporate decision, explained by a single set of reasons. As Mr Swan submitted, the views of individual members are irrelevant. It is the corporate decision that counts.
It follows from this that the memoranda are not admissible to prove that in reaching its decision the Board took into account an irrelevant matter. To so reason is to treat the memoranda as in some way reflecting a prior decision of the Board. The same applies to the submission that the memoranda can be used to support an argument that the Board made a decision that is illogical, or so unreasonable that its decision amounts to an error of law. Once again, basing such an argument on the memoranda involves treating the memoranda as some kind of prior decision from which the Board has departed. It must be borne firmly in mind that the memoranda reflect views held and expressed at a particular stage in the decision making process, but views from which the writer might have departed at a later stage. There was nothing to stop Mr Game adopting views expressed in the memoranda as part of his own argument, and deploying them as he might see fit. But, as I have said, he cannot treat the views in the memoranda as reflecting some kind of prior decision by the Board, and then require a departure from that decision to be satisfactorily explained.
However, I agree that the memoranda are admissible to the extent that they might support a submission that the Board has acted improperly, by making use of material that should have been disclosed to Mr Keogh and his advisers, or to prove that the Board’s decision was not a bona fide decision by the Board members. For example, a memorandum of a Board member might disclose that the Board member had spoken to an acquaintance, had acquired information relevant to the complaint, was relying upon that information and was communicating it to other Board members for them to use. I accept that misconduct of this kind can be proved through documents such as these memoranda, assuming that a claim of public interest immunity or some other grounds for resisting production does not succeed: see Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446 at 484-485.
However, I am not persuaded that the memoranda lead to the conclusion that members of the Board acted on new material that should have been disclosed and was not disclosed, or have acted in any way improperly or, for what it is worth, irrationally.
A period of about two months elapsed between the date of the last of the memorandum and the delivery of the Board’s decision. Most judges have had the experience of changing their mind about a case when reflecting on it over a period of time. Such a change of mind can be a substantial one. Most judges have had the experience of changing their mind when they come to prepare written reasons for decision, and have to think through more closely than before, how the case should be decided. Most Judges who sit on courts of appeal will have had the experience of being persuaded to change their mind by draft reasons circulated by another member of the court. These changes of mind can be on matters of fact or matters of law. So the fact that members of the Board might have undergone a substantial change of mind is not out of the ordinary, and of itself is no cause for suspicion.
And I repeat, as I noted before, that by no means all of the material in the memoranda is adverse to Dr Manock. And there is the point that Dr Oettle’s report might have affected the approach of members of the Board.
It is also important to remember that the Board makes its decision by a majority. If one of the three authors of the memoranda changed his mind, and if the other two members of the Board were of the view that the complaint should be dismissed, there would have been a majority favouring a dismissal of the complaint, even though the other two authors of the memoranda adhered to the views that they had expressed.
For those reasons the memoranda from the Board members do not lead to a conclusion that the Board’s decision was made unfairly, was made fraudulently or other than bona fide, or reflects a process of reasoning that is illogical or so unreasonable as to amount to an error of law.
Orders
For the reasons that I have given, in deciding that Mr Keogh’s complaint against Dr Manock should be dismissed the Board made an error of law by identifying the wrong issue, or by not asking itself the relevant question. It has wrongly exercised its jurisdiction, the consequence being that the order of dismissal is invalid. The Board has exceeded its statutory authority by asking the wrong question, and in the end has failed to exercise the jurisdiction conferred on it by failing to ask and to answer the right question.
The Court has a discretion whether or not to set aside the order of the decision maker.
The relevant events are now well in the past. As well, Dr Manock has retired from practice, and has no intention of returning to practice. If the complaint should be made out, the protection of the public would not be a factor in deciding whether to make a disciplinary order of some kind against Dr Manock. But disciplinary proceedings serve other purposes as well. The issues raised by the complaint are of some general significance. In the circumstances I am not persuaded that I should not make an order setting aside the decision of the Board.
Accordingly, I order that the decision of the Board of 22 June 2005 dismissing Mr Keogh’s complaint be set aside. I leave it to the Board to determine how it will proceed hereafter. I do not propose to make any direction as to the constitution of the Board when it meets to consider the complaint.
Costs
On 15 September 2006 a Judge of this Court dismissed an application by Dr Manock for security for costs. The Judge also dismissed an application by Dr Manock for an order rescinding leave to serve the proceedings, or in the alternative striking out the Statement of Claim. I gather that the Judge had before him a proposed Amended Statement of Claim, and as to that he ordered that in certain respects it be redrafted, but that Mr Keogh have leave to file it, subject to that redrafting. I understand that the parts of the Amended Statement of Claim that he in effect disallowed were not the subject of an attack by Dr Manock.
When the Judge made these orders he ordered that the costs of the applications made to him be reserved. He had earlier reserved to the trial Judge the costs of certain preliminary attendances before him.
As to the application to rescind leave to serve or to strike out the Statement of Claim, and the application for security for costs, there is no reason why costs should not follow the event. It is true that the proceedings challenge a decision of the Board, and if they succeed (as I have decided they do) they succeed because of an error made by the Board, for which Dr Manock is not responsible. But a party who chooses to defend proceedings by way of judicial review directed to a statutory decision maker, and in so doing to protect that party’s interests, must face the usual consequences of joining in the action. It is usual for a party in the position of Dr Manock to be ordered to pay the costs of unsuccessfully resisting a challenge to the validity of the decision of a statutory decision maker. Dr Manock’s applications were part of that process.
In relation to the application for security of costs, Mr Keogh seeks an order that his costs be paid on an indemnity basis. He relies on the fact that the application was made very late in the piece and, in his submission, was bound to fail. The application was made on the basis that Mr Keogh was in prison, and lacked the means to meet an order for costs. I agree that the application was made late, and that it had limited prospects of success. The reasons of the single Judge suggest that the application lacked any real substance.
Nevertheless, I am not persuaded that costs should be ordered on an indemnity basis. It is never easy to decide when to make such an order. Although there was no real merit in the application, I am not persuaded that the circumstances warrant the making of the order sought.
Accordingly, I order that the costs of the application made by Dr Manock for an order setting aside the order giving leave to serve the proceedings, or in the alternative for an order striking out the summons and statement of claim, be paid by Dr Manock. I order that the costs of the application for security of costs made by Dr Manock be paid by Dr Manock. I order that those costs include the costs of the hearings before the single Judge on 15 September 2006, 4 May 2006 and 21 March 2006. I order that those costs be taxed as between party and party.
I have considered Mr Swan’s submission that if an order for the costs of the proceedings is made in favour of Mr Keogh, the order should be made against the Board, because the order quashing the Board’s decision is a result of an error made by the Board. I do not accept that submission. The Board has not resisted the making of an order. Dr Manock has. There might be an argument that the Board is liable for the costs of issuing the proceedings, because that had to be done, come what may, to bring the Board’s decision before the Court.
Subject to the point just made I will hear the parties as to the costs of the action other than reserved costs, and of the hearing before me.