Lal v Medical Board of Australia
[2018] WASCA 109
•4 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LAL -v- MEDICAL BOARD OF AUSTRALIA [2018] WASCA 109
CORAM: MARTIN CJ
BEECH JA
PRITCHARD J
HEARD: 7 JUNE 2018
DELIVERED : 4 JULY 2018
FILE NO/S: CACV 20 of 2017
BETWEEN: VIPIN LAL
Appellant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUSTICE J C CURTHOYS (PRESIDENT)
Ms H LESLIE (MEMBER)
Dr K JEFFERIES (SENIOR SESSIONAL MEMBER)
Citation: MEDICAL BOARD OF AUSTRALIA and LAL [2017] WASAT 23
File Number : VR 13/2016
Catchwords:
Procedural fairness - Agreed statement of facts - Whether the State Administrative Tribunal denied the appellant procedural fairness by having regard to material outside of an agreed statement of facts
Legislation:
Health Practitioner Regulation National Law Act 2010 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Mr T Percy QC |
| Respondent | : | Mr M Howard SC |
Solicitors:
| Appellant | : | Clayton Utz |
| Respondent | : | Tottle Partners |
Case(s) referred to in decision(s):
Commissioner for Consumer Affairs v Carey [2014] WASCA 7
LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCA FC 90
Medical Board of Australia and Lal [2017] WASAT 23
Medical Board v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Rimington v The State of Western Australia [2015] WASCA 102
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222
REASONS OF THE COURT:
Summary
Dr Vipin Lal applies for leave to appeal from a decision of the State Administrative Tribunal (the Tribunal) cancelling his registration as a medical practitioner and disqualifying him from applying for registration as a medical practitioner for five years from the date of the Tribunal's order. He asserts that he was denied procedural fairness because the Tribunal made and took into account findings of fact adverse to him which went beyond the facts agreed in a minute of agreed facts presented to the Tribunal by the parties. He asserts that he was given no notice of the Tribunal's intention to make those findings of fact, nor any opportunity to adduce evidence or make submissions in opposition to those findings.
For the reasons which follow, Dr Lal's assertions are correct. He should be granted leave to appeal, the appeal allowed, the orders of the Tribunal set aside, and the matter remitted to the Tribunal differently constituted for reconsideration.
The proceedings in the Tribunal
The application
The proceedings in the Tribunal were commenced by an application made by the Medical Board of Australia (the Board) on 25 January 2016. In the application the Board sought orders to the effect that Dr Lal had behaved in a way that constituted professional misconduct and such orders as the Tribunal considered just in consequence of such a finding, including an order that the registration of Dr Lal as a medical practitioner be cancelled and that he be disqualified from applying for registration for a specified period. The grounds upon which those orders were sought are specified in the application under six headings, namely:
1.breach of professional boundaries;
2.sexual misconduct;
3.misleading entries in clinical notes;
4.making false statements to AHPRA and the Board;
5.making false statements in a witness statement to police in relation to a criminal complaint against the patient;
6.making false statements in a witness statement made for the purposes of the criminal prosecution of the patient.
Detailed particulars of each general allegation were provided by the Board in the application to the Tribunal. In relation to the allegation of breach of professional boundaries, it was alleged in the application that between June 2010 and 18 November 2013, Dr Lal failed to properly maintain proper professional boundaries with the patient (who will not be named for obvious reasons), and in particular:
(a)in the period July 2010 - 18 November 2013, Dr Lal frequently hugged the patient at consultations;
(b)in early 2011 during a consultation with the patient, Dr Lal said to the patient words to the effect of 'when are we going to go out for tea';
(c)in early 2011 during a consultation with the patient, Dr Lal said to the patient words to the effect of 'I'll take you on holiday one day';
(d)on a date between February 2013 and July 2013 during a consultation with the patient, Dr Lal hugged the patient for approximately one minute and said words to the effect of 'I could stay here forever';
(e)in or about February 2013, following the cryotherapy treatment of vaginal lesions and performance of a pap smear on the patient, Dr Lal hugged the patient, kissed her on the mouth for approximately 30 seconds and stroked her back;
(f)from approximately July 2013 to 18 November 2013, Dr Lal frequently hugged and kissed the patient when she consulted with him.
The Board further alleged that Dr Lal's conduct was aggravated by the fact that he had treated the patient for gynaecological issues and in or about September 2013 had provided her with medication to increase her libido.
In relation to the allegation of sexual misconduct, the Board alleged in the application to the Tribunal that Dr Lal engaged in sexual misconduct with the patient during the course of a consultation on 18 November 2013 and in particular had:
(a)embraced the patient;
(b)fondled the patient's breast;
(c)rubbed the patient's genitals; and
(d)digitally penetrated the patient's vagina.
The Board further asserted that the patient performed fellatio on Dr Lal on the same occasion. The Board alleged that this conduct was aggravated by the same matters which aggravated Dr Lal's breach of professional boundaries.
It is unnecessary to set out the particulars given by the Board in relation to the other four allegations made against Dr Lal, as those particulars were, in due course, admitted by him. For the purposes of general context, however, it should be noted that the allegation of making misleading entries in clinical notes related to the misleading notes Dr Lal made in respect of his consultations with the patient on 18 and 22 November 2013. The allegation of making false statements to the Australian Health Practitioner Regulation Agency (AHPRA) and the Board related to Dr Lal's initial denials that he had engaged in any form of sexual conduct with the patient, before later admitting that his penis had been in the patient's mouth, although he claimed that the patient had initiated that sexual conduct which had not been consensual from his perspective, all of which statements were false.
The first allegation of making false statements in a witness statement to police related to a statement which Dr Lal signed on 27 December 2013 in which he denied engaging in any form of sexual conduct with the patient. The second allegation of making false statements in a witness statement related to a further witness statement signed by Dr Lal on 15 April 2015 in which he admitted that his penis had been in the patient's mouth on 18 November 2013, but asserted that the patient had initiated the sexual contact between them and implied that the patient had not been consensual from his perspective, which assertions were false.
By way of context, it should also be noted that the statements made by Dr Lal to police were made in support of his allegation that the patient had attempted to extort $10,000 from him, as a result of which the patient was charged with a criminal offence. The charge brought against the patient was tried in the District Court in November 2015. Dr Lal gave evidence at the trial. The patient was acquitted. The Board commenced proceedings against Dr Lal in the Tribunal about two months after the patient's trial concluded.
Dr Lal's response to the application
On 8 March 2016 Dr Lal filed a response to the Board's application. In that response he denied the general and specific allegations made to the effect that he had failed to properly maintain proper professional boundaries with the patient. He also denied all allegations of sexual misconduct on 18 November 2013 other than to admit that the patient performed fellatio on him and to assert that this was done without his consent. Dr Lal denied making misleading entries in the clinical notes relating to the patient's consultation on 18 and 22 November 2013. He admitted that some of the statements which he made to AHPRA and the Board were false, but denied that others were false. Similarly, while he admitted that aspects of his first statement to police were false, he denied others. He denied that the statements made in his second witness statement to police were false.
The directions relating to the filing of document bundles
On 7 June 2016, the Tribunal made orders requiring first the Board and then Dr Lal to file a bundle of documents upon which they intended to rely at the hearing. Pursuant to those directions, the Board's bundle of documents was filed on 27 June 2016, and Dr Lal's bundle of documents was filed on 25 July 2016.
The agreed facts
Following conferral between the parties, a document entitled 'minute of proposed consent orders' was signed by the solicitors acting for the Board and for Dr Lal (the minute). The minute takes the form of an order to be made by the Tribunal 'on the application of the parties to settle the allegations in the proceedings at paragraphs [1] to [6] of the Grounds'. The minute notes that the parties had agreed in writing the terms upon which the allegations in the proceedings could be settled and had also agreed relevant background facts set out in the schedule attached to the order.
The minute further records an order giving effect to the terms of the agreed settlement of the allegations by orders in terms of the facts agreed under five headings. Under the first heading of 'Sexual Misconduct', the consent order recorded that on 18 November 2013, Dr Lal engaged in sexual contact with the patient during the course of a consultation. The sexual contact involved the performance of fellatio upon Dr Lal by the patient. The consent order further records that the conduct was aggravated by the fact that Dr Lal had treated the patient for gynaecological issues and in or about September 2013 had provided her with medication to increase her libido.
The other four headings in the consent order correspond to the last four headings in the Board's application and record facts which correspond substantially with the facts alleged by the Board in its application.
The schedule to the consent order is in the following terms:
The parties have agreed the following background facts:
1. Breach of professional boundaries
1.1Dr Lal failed to properly maintain proper professional boundaries with the patient in the period June 2010 to 18 November 2013 in that he hugged the patient, kissed the patient and made remarks of a personal nature to the patient all of which gave rise to a view on the part of the patient that Dr Lal was interested in the establishment of an intimate personal relationship with her.
1.2Dr Lal's conduct as set out in paragraph 1.1 above was aggravated by the fact that Dr Lal had treated the patient for gynaecological issues, and had provided her with medication to increase her libido.
1.3The failure to maintain proper professional boundaries was in breach of section 8.2 of the Medical Board of Australia's 'Good Medical Practice: a code of conduct for doctors in Australia.'
After the minute was filed, orders were made by the Tribunal vacating the hearing which had been listed, and listing the matter for a hearing with respect to penalty only. Orders were also made requiring the parties to exchange submissions and any further evidence in relation to penalty and costs. Pursuant to those orders, on 20 October 2016 the Board filed written submissions on penalty and costs. On 4 November 2016, submissions on penalty and costs were filed on behalf of Dr Lal, together with a bundle of documents to be used at the hearing relating to penalty and costs.
The hearing before the Tribunal
The matter came before the Tribunal for hearing with respect to penalty and costs on 11 November 2016. Counsel for the parties spoke to the written submissions which had been exchanged. In that context, counsel for the Board observed:
I am taking it as a given that the Tribunal has received both bundles, which is evidence for the purposes of the penalty hearing.[1]
[1] ts 3 GAB 3.
In the course of his address, counsel for Dr Lal formally tendered the bundle of documents which had been prepared on behalf of Dr Lal for the penalty and costs hearing. The presiding member of the Tribunal then observed:
Well I think what we will do is make the applicant's bundle of documents for hearing exhibit A, and the respondent's bundle of documents to penalty and cost hearing will be exhibit B.
The bundle of documents which became exhibit A was the bundle which had been prepared by the Board for the purposes of the hearing with respect to both liability and penalty. As will be seen, included within the bundle were statements of evidence proposed to be given by the patient (although the Board conceded during the penalty hearing that it would not have been possible for the Board to adduce evidence from the patient as a result of her 'changed personal circumstances').[2] On the other hand, the bundle of documents received as exhibit B was the bundle prepared on behalf of Dr Lal relating only to penalty and costs.
[2] ts 3 GAB 3.
The Tribunal reserved its decision and published its reasons for decision on 31 January 2017.
The Tribunal's reasons
The Tribunal's findings of fact
The Tribunal's reasons commenced with the observation that they relate to the penalty to be imposed upon Dr Lal following an agreement on the facts relating to his conduct set out in the minute to which we have referred. The agreed facts are then set out in the terms of the minute. As we have observed, the agreed facts recorded in the Tribunal's reasons are substantially identical to the allegations made by the Board in respect of four of the categories of alleged misconduct.
In relation to the category of sexual misconduct, the agreed facts are restricted to the performance of fellatio upon Dr Lal by the patient and do not include the allegations made by the Board to the effect that during the consultation on 18 November 2013, Dr Lal embraced the patient, fondled the patient's breast, rubbed the patient's genitals and digitally penetrated the patient's vagina.
Further, the allegations of failure to maintain proper professional boundaries with the patient made in the Board's application were the subject of agreement by the parties in general terms rather than the specific terms alleged by the Board in its application, and were described in the minute, and in the Tribunal's reasons as 'background facts'. The general matters agreed by the parties related to hugging, kissing and making remarks of a personal nature.
The Tribunal's reasons record the tender into evidence of the bundles of documents to which we have referred, without referring to any limitations upon the use to which the tendered documents could properly be put.[3]
[3] Medical Board of Australia and Lal [2017] WASAT 23 [3].
Under the heading 'events leading to Dr Lal's sexual misconduct', the Tribunal observed:[4]
[4] Tribunal's reasons [10] - [16].
The background events to Dr Lal's sexual misconduct are set out above in Schedule A of the agreed facts.
The facts set out in Schedule A are amplified by a statement of the Patient which commences at page 75 of Exhibit A.
The evidence of the Patient as to her relationship with Dr Lal prior to 18 November 2013 is set out at paragraphs 15-52.
15.I found Dr Lal to be friendly, down to earth and flirtatious.
16.In approximately June 2010 (three months after I started attending upon Dr Lal at [the Practice], Dr Lal greeted me with a hug upon me entering his consultation room.
17.After this consultation, Dr Lal greeted me with a hug at every consultation.
18.I am unsure exactly when, but some weeks later, Dr Lal greeted me with a kiss on the cheek, in addition to a hug.
19.Once I started seeing Dr Lal at [the Practice], Dr Lal became more flirtatious with me.
20.For example, during a consultation in early 2011 at [the Practice], as I was getting ready to leave the consultation room, Dr Lal asked me, in a jokey tone, words to the effect of, 'When are we going to go out for tea?'
21.I responded in a similar jokey tone that I would take Dr Lal out another day.
22.By way of a further example, during a consultation that occurred approximately two weeks later, Dr Lal told me I needed a holiday because of issues I had been having with ongoing pain, and my children misbehaving at school.
23.I responded that I have never actually been on holiday before, and Dr Lal said, in a jovial, flirtatious manner, words to the effect of, and said words to the effect of, 'I'll take you on a holiday one day'.
24.I responded in a similar manner that I would think of somewhere I'd like to visit.
25.Once I started seeing Dr Lal at the Practice, it became a common occurrence for him to hug me and kiss me on the cheek at the beginning and end of each consultation. These actions would only occur inside the consultation room and once his door was shut.
26.The door was not usually locked.
27.I felt like we had become good friends.
28.In July 2013, 1 took a friend, C, with me to see Dr Lal at the Practice for an ulcer on her leg.
29.My friend's appointment was first and I sat in with her.
30.After my friend's appointment, she left the consultation room and went to a nearby shop whilst I had my appointment with Dr Lal.
31.At the appointment, Dr Lal treated my genital warts, and provided me with prescriptions.
32.As I was getting ready to leave the consultation room, Dr Lal hugged me, as usual; however, Dr Lal held the hug for about a minute.
33.I hugged Dr Lal back.
34.Then Dr Lal said words to the effect of, 'I could stay here forever'. I did not respond.
35.Dr Lal then started to move his arms down my back slowly and almost touched my bottom. He moved his arms back up to the middle of my back.
36.I hugged Dr Lal a little tighter.
37.I could see Dr Lal's waiting room was full because I could see surveillance footage, from four different cameras around the Practice, on his computer screen.
38.I then broke the hug and told Dr Lal he had a full waiting room.
39.Dr Lal said, 'See you next time' or words to that effect.
40.I recall feeling flattered and special.
41.The following week (early August 2013), I returned to see Dr Lal for the purposes of laser removal of my genital warts.
42.Once Dr Lal finished the procedure, he stood back, looked at my vagina and said, 'That's perfect'.
43.I then got up off the examination bed and got dressed.
44.As I was leaving, Dr Lal moved in for our usual hug.
45.Dr Lal then kissed me on the lips with a closed mouth. This lasted approximately 30 seconds.
46.While we kissed, Dr Lal had his arms around me and was stroking my back by moving his arms up and down my back.
47.I recall thinking that maybe Dr Lal really likes me.
48.I then pulled away from the kiss and rested my head on his left shoulder while we continued to hug.
49.After I broke the hug, neither of us said anything and I then left the Practice.
50.I did not tell anyone about what had happened.
51.After this, I made an effort to see Dr Lal more regularly, approximately once to twice a week.
52.At the end of every consultation, Dr Lal kissed me on the lips with a closed mouth.
It is evident from the Patient's statement that from June 2010 until November 2013, Dr Lal was flirtatious with her and hugged and kissed her initially on the cheek and eventually on the lips for a long period of time. It is also evident from the Patient's statement that Dr Lal progressively increased the amount and nature of the physical contact with the Patient from about July 2013.
The Patient's statement reveals an escalation in the relationship between her and Dr Lal and an increase in the seriousness of the breaches of the professional boundaries between Dr Lal and the Patient.
Dr Lal has not offered any evidence in mitigation of his conduct during this period.
The warning signs of a breach of professional boundaries as set out in the Guidelines were clearly apparent in that Dr Lal was using sexually explicit language and both parties were being overly affectionate prior to the sexual misconduct of 18 November 2013.
It will be noticed that the specific allegations made by the patient in the statement which has been recited by the Tribunal correspond to the specific allegations made in ground 1 of the Board's application to the Tribunal. Those specific allegations were not the subject of agreement between the parties, as we have noted. The Tribunal also appears to have made findings to the effect that Dr Lal progressively increased the amount and nature of the physical contact with the patient and escalated their relationship, together with a finding that Dr Lal was using sexually explicit language, all of which go beyond the factual matters agreed in the minute.
Immediately following the portion of the Tribunal's reasons which we have set out above, under the heading 'Sexual misconduct 18 November 2013' the Tribunal observed:[5]
[5] Tribunal's reasons [17] - [19], [23].
The events that followed illustrate why professional boundaries are so important and a breach of them needs to be viewed seriously. The agreed facts set out in paragraph 1 above are amplified by the Patient's statement at Exhibit A pages 80-83 paragraphs 58-107.
58.I recall Dr Lal's waiting room was empty whilst I waited for my appointment.
59.When I entered Dr Lal's consultation room, he closed the door but did not lock it.
60.There were two chairs next to Dr Lal's desk, against the wall to the left.
61.As I was stood in front of the chair directly next to Dr Lal's desk, Dr Lal and I hugged, as per normal.
62.This time, however, Dr Lal held on to me more tightly than usual.
63.Dr Lal then pressed his body against mine so strongly, that I felt like I would fall back over the chair that was behind me; however, I did not want to break contact so I readjusted my feet so I would not fall over.
64.This embrace lasted for approximately one minute.
65.Dr Lal then put his right hand on my left breast over my top.
66.Under my dress, I was wearing a purple padded bra with a lace trim, purple lace knickers and I was wearing thongs on my feet.
67.Dr Lal was stroking my left breast over my dress.
68.Dr Lal then put his right hand down the top of my dress and continued stroking my breast.
69.Dr Lal appeared frustrated that my bra was padded, so he put his right hand down the front of my bra and caressed my left breast and nipple.
70.I did not say anything.
71.Approximately one minute later, Dr Lal put his hand up under my dress and rubbed my genitals over the top of my underwear.
72.Dr Lal then moved my underwear to one side and continued to rub my genitals.
73.I responded by pressing against him.
74.Dr Lal then stopped suddenly and walked to the door and locked it.
75.Dr Lal then said words to the effect of, 'Just hop up on the bed', which I did.
76.Dr Lal did not ask me to, but I lied down.
77.Dr Lal then climbed up and over me on the examination bed so that he was lying next to me, with his back against the wall (the examination bed is positioned against a wall).
78.I had an ankle length dress on and Dr Lal used his hand to pull it up to my thigh.
79.He then moved his hand under my skirt, moved his fingers underneath my underwear and digitally penetrated me.
80.I touched Dr Lal's chest through the top of his shirt, I recall that his chest was bare.
81.I did not orgasm, but I was aroused.
82.Dr Lal then said, 'Very sexy'.
83.Then, suddenly, Dr Lal got up off the examination bed.
84.Dr Lal turned to me and asked me, what I thought was, words to the effect of, 'Do you have a condom?'
85.I answered that I did not.
86.Dr Lal then said words to the effect of, 'You didn't?'
87.I became confused and asked, "What did you say?"
88.Dr Lal then asked me, 'Did you orgasm?' or words to that effect.
89.I responded, 'Yes'.
90.Then I sat up and got off the examination bed.
91.Dr Lal had been looking at his computer screen which showed CCTV images of various areas of the practice.
92.As I got off the bed, Dr Lal turned around to face me and took a step forward.
93.Then Dr Lal and I were standing in the middle of his room.
94.Dr Lal then unzipped his jeans while we were still standing up facing each other and said words to the effect of, 'Just feel how hard it is'.
95.Dr Lal was wearing silky style boxer shorts.
96.Dr Lal removed his penis from his underwear and I held it in my hand. Dr Lal was uncircumcised.
97.Dr Lal then put his hand over mine and squeezed it a few times.
98.I then dropped to my knees and gave Dr Lal oral sex.
99.The oral sex lasted for between two to three minutes.
100.Dr Lal then pulled his penis out of my mouth and came into a tissue.
101.Straight after this, I stood up, Dr Lal gave me a hug and he walked me towards the door.
102.We did not say anything at all to each other.
103.Dr Lal then kissed me on the lips with a closed mouth.
104.I recall thinking that Dr Lal looked worried and he remained quiet. Therefore, I reverted back to 'patient mode' and said, 'Thanks, Dr Lal' or words to that effect and then exited his room and went to the reception desk.
105.I recall that the waiting area near the reception desk was almost full, with between eight and 10 people waiting.
106.Dr Lal bulk bills to Medicare so I signed the necessary paperwork at the reception desk and then left.
107.I estimate that my consultation with Dr Lal lasted approximately 30 minutes.
Dr Lal's sexual misconduct is more serious because it involved penetration. Both in criminal law and in disciplinary matters, sexual penetration is regarded more seriously than instances of sexual misconduct not involving sexual penetration.
Dr Lal's conduct on 18 November 2013 was clearly calculated. It represented a significant increase in the breach of professional boundaries between him and the Patient in that it involved serious sexual misconduct between a doctor and a patient. It clearly involved sexual exploitation of the Patient by Dr Lal.
…
Dr Lal's conduct on 18 November 2013 was clearly unethical and unprofessional.
We again digress to observe that the assertions made by the patient in the portion of her statement which the Tribunal has recited include the assertions to the effect that Dr Lal embraced the patient, fondled the patient's breast, rubbed the patient's genitals and digitally penetrated the patient's vagina. These assertions were included within the allegations made by the Board in the second ground of its application to the Tribunal, but were not included within the minute agreed by the parties.
The Tribunal's reasons then record findings with respect to the misleading entries made by Dr Lal in the medical notes he made in relation to his consultations with the patient on 18 and 22 November 2013. Under the heading '23 November 2013', the Tribunal then observed:[6]
[6] Tribunal's reasons [34] - [36].
On Saturday, 23 November 2013, the Patient went to the practice again because she said she was angry and wanted to speak to Dr Lal again. The Patient's evidence was that she saw Dr Lal at the surgery and the following exchange took place:
192.I said words to the effect of, 'have you thought about what we're going to do?
193.Dr Lal responded with words to the effect of, 'About what? There is nothing to do'.
194.I asked 'You're not actually going to admit it, hey?' or words to that effect.
195.Dr Lal said nothing.
196.I said, 'Fine! See you in court' or words to that effect, and stormed off.
(Exhibit A page 89 at paragraphs 192196)
Subsequently, Dr Lal's wife called the Patient and she and her friend attended at the practice at 2 pm. The Patient's evidence is that the following exchange took place (Exhibit A pages 89-90 at paragraphs 205-227):
205.I made my way to the door with [my friend], and Mrs Lal opened the sliding door to let us in. She then closed it and locked it.
206.Mrs Lal said she did not expect me to bring anyone with me.
207.Mrs Lal left and went to Dr Lal's room.
208.When she returned. Mrs Lal said she and Dr Lal wanted to see me on my own in his room.
209.I responded that if it was just me and Dr Lal, then that was fine.
210.Mrs Lal said she would also be there.
211.I said that in that case, I wanted [my friend] in with me.
212.Mrs Lal then went back to Dr Lal's room and returned with him to the waiting room a short time later.
213.I cannot recall the exact words of the conversation, but I can recall the effect of the words was as set out below.
214.Dr Lal said, '[Patient], I've done so much for you' and started listing things he had done for me. For example, referring me to the Fremantle Hospital pain clinic.
215.I responded, 'That's your fucking job!'
216.Mrs Lal said, '[Patient], I've been married to Vipin for 20 years and he has never asked me to do something like that' referring to me having performed oral sex on Dr Lal.
217.I said, 'He got his cock out of his pants'.
218.Mrs Lal asked, 'How dare you say these things about my husband?'
219.I started to get progressively angrier as Dr Lal was acting like nothing had happened between us.
220.I then tried to leave, but the door was locked.
221.I yelled, 'Open the fucking door!'
222.Neither Dr Lal nor his wife moved to open the door.
223.I yelled, 'If you don't open the door, I will smash it!'
224.I then took out my mobile and said I was going to call the police.
225.Mrs Lal then stood up and opened the door. I stormed out, but [my friend] stayed for approximately another five minutes.
226.[My friend] then walked out and I heard her say, 'See you in court' or words to that effect.
227.As [my friend] and I drove off, Mrs Lal waved at us from the door.
The most probable inference from the statements made by Mrs Lal is that Dr Lal had been dishonest to Mrs Lal about what had occurred.
It seems that the only source of evidence relating to conversations on 23 November 2013 between Dr Lal and the patient, and Dr Lal's wife and the patient, was the statement of the patient contained within the bundle of documents prepared by the Board for the hearing as to liability, and which had been received by the Tribunal in evidence. If there was any evidence before the Tribunal in relation to these matters from either Mrs Lal or Dr Lal, there is no reference to that evidence in the Tribunal's reasons.
Further, it seems clear from the terms in which the Tribunal's reasons are expressed that the Tribunal has accepted the patient's evidence with respect to those matters and concluded that statements were made by Mrs Lal to the patient as alleged, from which the Tribunal has drawn an inference that Dr Lal was dishonest to his wife about what had occurred. It does not appear that any allegation to that effect had been made prior to this observation in the Tribunal's reasons.
The Tribunal's reasons then deal with the false statements made by Dr Lal to representatives of the AHPRA and the police.
The Tribunal's reasoning
After setting out its findings of fact, the Tribunal set out the reasoning process which it had followed in arriving at its decision with respect to penalty. This portion of the Tribunal's reasons contain a series of headings which correspond almost exactly with the headings contained in the Board's written submissions. Further, substantial portions of the text set out under those headings in the Tribunal's reasons correspond to or replicate the text contained within the Board's written submissions, without any form of attribution.[7] This portion of the Tribunal's reasons contains much of the Tribunal's reasoning process and its conclusions with respect to the penalty appropriately imposed.
[7] [88] - [89] of the Tribunal's reasons correspond to [6] - [7] of the Board's submissions; [104] of the Tribunal's reasons correspond, almost verbatim, with [9] of the Board's submissions; [90] of the Tribunal's reasons corresponds exactly with [10] of the Board's submissions; [92] - [93] of the Tribunal's reasons correspond exactly with [11] - [12] of the Board's submissions, with an additional sentence added; [97] - [99] of the Tribunal's reasons correspond exactly to [13] - [15] of the Board's submissions, with some additional authorities added; [101] - [102] of the Tribunal's reasons correspond exactly with [17] - [18] of the Board's submissions, with some additional authorities added; [108] - [109] of the Tribunal's reasons correspond almost exactly with [31] - [32] of the Board's submissions; [112] - [116] of the Tribunal's reasons correspond almost verbatim with [37] - [41] of the Board's submissions (with a portion of one of those paragraphs omitted); [123] - [124] of the Tribunal's reasons correspond almost verbatim with [42] - [43] of the Board's submissions; [130] of the Tribunal's reasons corresponds exactly with [50] of the Board's submissions; [132] of the Tribunal's reasons corresponds exactly with [54] of the Board's submissions; [137] of the Tribunal's reasons corresponds exactly with [57] of the Board's submissions; [138] of the Tribunal's reasons corresponds very closely with [58] of the Board's submissions; [141] - [142] of the Tribunal's reasons correspond almost verbatim with [62] - [63] of the Board's submissions; [146] of the Tribunal's reasons corresponds exactly with [64] of the Board's submissions; [148] of the Tribunal's reasons corresponds very closely to [65] of the Board's submissions; [151] - [156] of the Tribunal's reasons correspond very closely to [68] - [73] of the Board's submissions.
This is bad practice. As the Court of Appeal observed in Scaffidi v Chief Executive Officer, Department of Local Government and Communities:[8]
The reasons of the Tribunal must explain the actual path of reasoning in sufficient detail to enable the unsuccessful litigant to understand why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error. The expression of the Tribunal's reasoning in its own language is conducive to meeting that requirement, and to showing that it engaged with the losing party's case.
[8] Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222 [201].
The preparation of reasons by applying 'scissors and paste' to written submissions presented by the successful party, without acknowledging that process, is bound to cause the unsuccessful party, and the community, to entertain a real doubt as to whether the decision-maker has properly engaged with the case presented on behalf of the unsuccessful party.
In LVR (WA) Pty Ltd v Administrative Appeals Tribunal[9] the Full Court of the Federal Court considered whether unattributed copying of the submissions of a party by a Tribunal could sustain the conclusion that the Tribunal had failed to perform its statutory function, and in particular, had failed to turn its mind to, and resolve, the issues which it was required to resolve. In that case, the authorities in Australia and elsewhere relevant to that question are helpfully reviewed. However, as no submission to that effect has been made in this case, it is unnecessary to consider that issue.
[9] LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCA FC 90.
It is significant that one of the portions of the Tribunal's reasons which has been taken virtually verbatim from the Board's written submissions is the following:[10]
Dr Lal's active dishonesty with police and in a witness statement for the criminal prosecution of his patient was calculated. Though not the subject of an allegation in these proceedings, that dishonesty persisted even when Dr Lal gave evidence at the criminal trial of the Patient that the sexual contact with the Patient was initiated by her and was not consensual.
At the Patient's criminal trial, Dr Lal was content to continue to paint the Patient as a liar, and as the instigator of an unwanted sexual advance upon him, an unwilling victim. The impact of his conduct upon the Patient may be inferred.
[10] Tribunal's reasons [141] - 142].
The written submissions filed on behalf of Dr Lal responded to the paragraph in the Board's submissions which corresponds to this portion of the Tribunal's reasons in the following terms:[11]
Paragraph 62 of the Medical Board's submissions make reference to evidence that Dr Lal gave in the District Court. As acknowledged in those paragraphs, that evidence is not the subject of an allegation in these proceedings.
[11] Respondent's written submissions [41].
Nevertheless, the Tribunal has included within its reasons what appears to be a finding to the effect that Dr Lal committed perjury, even though no allegation to that effect was made in the course of the proceedings before the Tribunal.
Relevant also to the proper construction of the Tribunal's reasons is the following passage:[12]
The sexual misconduct occurred after a long process of breaching professional boundaries. Whilst the agreed facts relate to a single act, that act needs to be seen in the context of the long process that led to it.
[12] Tribunal's reasons [127].
The grounds of appeal
There are three grounds of appeal. Following an amendment made during the hearing, the first ground of appeal is in the following terms:
The State Administrative Tribunal (the Tribunal) erred in law by denying procedural fairness to the appellant, in making findings of fact that were substantially different from, or additional to, the agreed facts, without drawing to the attention of the parties that it intended to do this, and to give them an opportunity to be heard.
Particulars
(i)In its reasons, the Tribunal referred extensively to a statement of the patient (Patient) which, among other things, detailed several allegations that had been in the originating Application, but which had been abandoned by the Medical Board (Board) and were not contained in the Minute of Proposed Consent Orders (Minute) (which recorded the agreement of the parties as to the terms upon which the allegations could be settled), and were not the subject of comment by the parties or the Tribunal during the hearing.
(ii)The Tribunal inferred, from another lengthy passage from the Patient's statement, that the appellant had been dishonest to his wife about his sexual interaction with the Patient. The Board had never made the allegation, and it was not referred to in the Application or the Minute and it was not the subject of comment by the parties or the Tribunal during the hearing.
(iii)The Tribunal relied on the appellant's dishonesty in the face of the Court at the Patient's trial as a specific aggravating factor, despite the issue not being part of the agreed facts contained in the Minute.
Grounds 2 and 3 rely upon the same particulars as ground 1 and assert that the Tribunal erred in law by taking into account matters that were outside the scope of the agreed conduct in contravention, or by taking into account irrelevant considerations (respectively). It is unnecessary to set out those grounds or to consider them as they are essentially redundant. That is because if ground 1 succeeds, the appeal must be allowed, and grounds 2 and 3 are unnecessary. On the other hand, if ground 1 fails, neither ground 2 nor ground 3 could succeed.
Ground 1 - disposition
The Tribunal is expressly bound to afford procedural fairness[13] except to the extent that a departure from the requirements of procedural fairness is authorised either expressly or by implication by either the State Administrative Tribunal Act or the Act conferring jurisdiction upon the Tribunal. There is no suggestion that either the State Administrative Tribunal Act or the Act conferring jurisdiction upon the Tribunal[14] authorise either expressly or by implication any departure from the requirements of procedural fairness.
[13] Described in s 32 of the State Administrative Tribunal Act 2004 (WA) as 'the rules of natural justice'.
[14] Health Practitioner Regulation National Law Act 2010 (WA).
It is trite to observe that procedural fairness requires that a party be made aware of the case against them, and given a fair opportunity to meet that case with evidence and/or submissions. The basic requirement is so well known and fundamental as to not require support by the citation of authority. The only question in this case is whether the course taken by the Tribunal deprived Dr Lal of the opportunity to know the case against him, and consequently of the opportunity for him to respond to that case with evidence or submissions.
In its written and oral submissions, the Board accepted that if the Tribunal had made findings of fact adverse to Dr Lal which went beyond the facts contained within the minute of consent orders agreed by the parties, and had taken those facts into account when deciding upon the penalty to be imposed, it would follow that Dr Lal had been denied procedural fairness and the appeal must be allowed. The Board's contention in opposition to the appeal is essentially to the effect when the Tribunal's reasons are read as a whole, the matters to which attention is drawn by ground 1 of the appeal were simply part of the 'background' or 'amplification' or 'context' or 'comment' and that the Tribunal's reasons, viewed as a whole, support the conclusion that the only matters of fact which were 'operative' were those contained within the minute agreed by the parties. The Board accepts that if this proposition is not accepted, the appeal must be allowed.
The fact that the Tribunal's reasons commenced with a detailed recitation of the facts agreed in the minute provides some support for the Board's proposition. However, when account is taken of the reasons which follow that recitation, it is impossible to resist the conclusion that the Tribunal has not regard itself as confined to, or by, the facts agreed by the parties in settlement of the contested proceedings before the Tribunal. After referring to the 'background facts' agreed by the parties as Schedule A to the minute, the Tribunal observed that those facts were 'amplified' by the patient's statement of evidence.[15] Precisely the same word is used to describe the use which the Tribunal has made of the patient's statement with respect to the sexual conduct which allegedly took place on 18 November 2013.[16]
[15] Tribunal's reasons [11].
[16] Tribunal's reasons [17].
The word 'amplify' is defined by the Shorter Oxford English Dictionary to mean, relevantly, 'enlarge, increase, augment; enhance; elaborate on (a statement or narrative); exaggerate'. The Macquarie Dictionary defines the word, relevantly, to mean 'to expand in stating or describing, as by details, illustration, etc'.
It is possible that the word 'amplified' might be used, perhaps imprecisely, to describe material which is purely contextual, and which does not add materially to the relevant information - in this case, that contained within the minute. However, when account is taken of the portions of the patient's statement recited by the Tribunal, and the conclusions drawn by the Tribunal from those portions, it is clear that the Tribunal has used the patient's statement to augment and expand the facts agreed by the parties in the minute provided to the Tribunal.
Dealing firstly with the first lengthy portion of the patient's statement recited by the Tribunal, as we have already noted, the general effect of that portion of the statement was to reiterate the specific allegations of failure to maintain appropriate boundaries between doctor and patient, which were included in the Board's application but not within the facts agreed by the parties. Further, as we have also noted, the Tribunal used that portion of the patient's statement to conclude that Dr Lal progressively increased the amount and nature of his physical contact with the patient and escalated their relationship, and was using sexually explicit language. None of these matters was included within the minute, each is adverse to Dr Lal and, in combination, justifies a more sinister and culpable characterisation of the conduct which took place on 18 November 2013, as it suggests that Dr Lal was deliberately grooming the patient for sexual misconduct of the kind that took place, in a way which the Tribunal described as 'clearly calculated'.[17]
[17] Tribunal's reasons [19].
Dr Lal never accepted the specific allegations made by the Board in the first ground of its application to the Tribunal. However, when account is taken of the conclusions which the Tribunal has drawn from the portion of the patient's statement which it recited, the inescapable conclusion is that the Tribunal has made findings of fact in the terms of the patient's statement, and used those findings to draw conclusions adverse to Dr Lal, and which were used to characterise his conduct preceding the sexual misconduct on 18 November 2013, in a manner which could not be sustained by the agreed facts.
Dr Lal and his legal advisers had no way of knowing that the Tribunal was likely to proceed in this manner and, therefore, no opportunity to adduce evidence contrary to that contained within the patient's statement, or to put submissions in relation to the proper characterisation of the matters to which reference is made in that statement. The mere fact that the Tribunal received in evidence the bundle of documents prepared by the Board in anticipation of a hearing with respect to liability would not, of itself, place Dr Lal or his legal advisers on notice of the prospect that the Board would make findings of fact adverse to Dr Lal, and which went beyond the facts agreed in order to resolve the Tribunal proceedings without prior notice to Dr Lal or his legal advisers.
When the bundle of documents was received in evidence by the Tribunal, no reference was made by either the parties or the Tribunal to the use to which the documents within the bundle might be put. However, the documents were tendered and received in a context in which the parties and the Tribunal were all aware that previously contested proceedings had been resolved by agreement upon the facts that were to be assumed for the purposes of the imposition of penalty.
In those circumstances, it was entirely reasonable for Dr Lal and his legal advisers to assume that any documents or materials within the bundle of documents tendered in evidence which were inconsistent with, or went beyond, the matters of fact agreed by the parties would be ignored by the Tribunal. At the very least, it would be reasonable to assume that notice would be given to the parties, together with an opportunity to adduce evidence and/or submissions, if the documents received in evidence were to be used to make any findings adverse to Dr Lal beyond those which had been agreed. Fairness dictated that if the Tribunal proposed to find facts that were substantially different from, or additional to, the agreed facts, the Tribunal should draw this to the parties' attention and give them an opportunity to respond.[18]
[18] See, by analogy, Rimington v The State of Western Australia [2015] WASCA 102 [54].
The Tribunal prefaced its recitation of the second lengthy portion of the patient's statement by referring to the agreed facts relating to sexual misconduct being 'amplified' by the patient's statement. The portion of the statement recited by the Tribunal includes the specific allegations of sexual misconduct that were included within the second ground of the Board's application to the Tribunal, but which were excluded from the facts agreed by the parties. Those matters include the allegation that Dr Lal embraced the patient, fondled her breast, rubbed her genitals and digitally penetrated her vagina.
These are obviously serious allegations of sexual misconduct. There is no way in which they can be regarded as background, or contextual, or as mere commentary. If the Tribunal was not making findings of fact in accordance with the assertions made in the patient's statement, it is difficult to conceive of any reason why the patient's assertion of those matters would have been recited in the Tribunal's reasons.
Further, the reasons of the Tribunal which follow the recited portion of the patient's statement compel the conclusion that the Tribunal was, indeed, making findings of fact in the terms asserted by the patient. Immediately following the relevant portion of the statement, the Tribunal referred to Dr Lal's conduct using the generic discription 'sexual misconduct'. That term is more apt to describe the course and variety of sexual encounters described by the patient in her statement than the single act of fellatio specified in the facts agreed by the parties. The Tribunal then referred to penetration being regarded more seriously than sexual misconduct not involving sexual penetration. That observation is apt to relate to both the instance of digital penetration described by the patient in her statement, and the fellatio. Further, the description of Dr Lal's conduct on 18 November 2013 as having been 'clearly calculated'[19] is, again, much more apt to relate to the course and variety of conduct described by the patient in her statement than the single act of fellatio agreed by the parties.
[19] Tribunal's reasons [19], set out at [27] above.
For these various reasons, the conclusion that the Tribunal has, in fact, made findings of fact adverse to Dr Lal to the effect that he embraced the patient, fondled her breast, rubbed her genitals, and digitally penetrated her vagina is inescapable.
The Tribunal recited another substantial portion of the patient's statement, relating to her conversation with Dr Lal's wife, in support of its conclusion that:[20]
The most probable inference from the statements made by Mrs Lal is that Dr Lal had been dishonest to Mrs Lal about what had occurred.
[20] Tribunal's reasons [36].
It is clear from that observation that the Tribunal must have accepted that statements were made by Mrs Lal to the patient in the terms set out in the patient's statement. The Tribunal has inferred, from the fact that those statements were made, that Dr Lal lied to his wife. That inference has been drawn despite the fact that the Tribunal does not appear to have received, or taken into account, any evidence from either Dr Lal or his wife about the communications between them. Dr Lal had no notice of the proposition that he had lied to his wife, nor had he been given any opportunity to adduce evidence from either himself or his wife in response to that proposition, or to put submissions before the Tribunal in relation to it.
The Board submits that this finding by the Tribunal should be regarded as mere comment - a passing aside. That proposition cannot be accepted. The Tribunal recited a lengthy portion of the patient's statement in its reasons in support of its conclusion that Dr Lal had lied to his wife. There is no reason to consider that the Tribunal regarded that finding as irrelevant or inconsequential. To the contrary, a significant portion of the Tribunal's subsequent reasoning relies upon the proposition that Dr Lal had engaged in a sustained course of dishonest conduct over a lengthy period.[21] There is every reason to conclude that the Tribunal relied upon its finding that Dr Lal had lied to his wife as part of the basis for its conclusion that Dr Lal had engaged in a sustained course of dishonesty.[22]
[21] Tribunal's reasons [110] - [122], [124], [128] - [129].
[22] Tribunal's reasons [129].
We have set out above[23] the portion of the Tribunal's reasons in which it found, in effect, that Dr Lal committed perjury during the trial of the patient. The Board submits that it should be concluded that the Tribunal did not take this finding into account because it specifically noted that the allegation of perjury was 'not the subject of an allegation in these proceedings'. That proposition cannot be accepted.
[23] [36].
It should first be noted that the qualification to the effect that the allegation of perjury was 'not the subject of an allegation in these proceedings' were not the words coined by Tribunal's - rather, they were the words first used in the Board's submissions, replicated by the Tribunal in its reasons. The proposition that the Tribunal was not taking into account the finding of perjury cannot be reconciled with the inclusion of that finding in the Tribunal's reasons. The finding is contained under the heading 'Any other matters relevant to Dr Lal's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness?'. Clearly, the Tribunal must have regarded the finding of perjury as a matter relevant to Dr Lal's fitness to practise, or as a matter which aggravated his conduct.
Further, the finding of perjury is immediately followed by a finding, which is not qualified in any way to the effect that during the criminal trial of the patient, Dr Lal was content to continue to paint the patient as a liar and as the instigator of an unwanted sexual advance upon him, and an unwilling victim. It is not possible to construe this finding as anything other than a finding of misconduct, or a matter which aggravates the seriousness of Dr Lal's conduct.
Dr Lal must be taken to have been aware of the proposition that he had committed perjury, because it was contained in the Board's written submissions. However, in those submissions it was qualified by the observation that it was not the subject of an allegation in the proceedings before the Tribunal. That qualification was noted in Dr Lal's written submissions in response and, as a consequence, nothing more was said about it. It follows that Dr Lal was not made aware of the prospect that he was at risk of being found to have committed perjury, or given the opportunity to adduce evidence or put submissions in relation to that prospect.
The strongest support for the Board's contention - that the Tribunal referred to facts which did not form part of the Agreed Facts simply by way of background, or amplification or context - is to be found in the following paragraph of the Tribunal's reasons:[24]
The sexual misconduct occurred after a long process of breaching professional boundaries. Whilst the agreed facts relate to a single act, that act needs to be seen in the context of the long process that led to it.
The Board contends that it should be concluded from this portion of the Tribunal's reasons that the Tribunal confined its considerations to only those matters specified in the agreed facts.
[24] Tribunal's reasons [127].
That contention must be rejected. The reference to 'a long process of breaching professional boundaries' is not merely a reference to the agreed background facts set out in the schedule to the consent order, but is clearly a reference to the specific allegations made by the patient in her statement, and which caused the Tribunal to conclude that Dr Lal had progressively increased the amount and nature of the physical contact with the patient, and escalated their relationship over a lengthy period.[25] The Board's specific reference to 'the long process that led' to the act of sexual misconduct reinforces the conclusion that the Board has relied upon facts which it has found and which were not included in the minute of consent orders.
[25] Tribunal's reasons [13] - [14].
If the reference to 'a single act' is construed as a reference only to the act of fellatio, the process leading up to that act included the matters which, according to the patient’s statement, took place prior to the act of fellatio, being the embrace, the breast fondling, the rubbing of genitals, and the digital penetration, all of which were described by the Tribunal as having 'amplified' the agreed facts.[26] As the Board accepted,[27] the assessment of the seriousness of a single act of fellatio will be affected by a finding that it followed shortly after some other sexual acts including digital penetration.
[26] Tribunal's reasons [17].
[27] Appeal ts 15.
Further, the Tribunal's specific acknowledgement of the limited scope of the agreed facts serves to reinforce the distinction between those facts and the additional facts to which the Tribunal refers in its reasons, and must be taken to have considered when deciding upon the penalty appropriately imposed.
Conclusion
For these reasons, there can be no doubt that the Tribunal has made findings of fact adverse to Dr Lal, and relied upon those findings of fact in arriving at its decision with respect to the penalty to be imposed upon him in circumstances in which Dr Lal had no notice that findings of that kind were to be made, nor any opportunity to present evidence or submissions in relation to them. Dr Lal has been denied procedural fairness, and the first ground of appeal, and the appeal, should be upheld. Leave to appeal should be granted for that purpose, and the decision of the Tribunal with respect to the penalty imposed upon Dr Lal set aside.
Disposition
In light of our conclusion that the decision of the Tribunal should be set aside, a question arises as to whether this court should send the matter back to the Tribunal (differently constituted) for reconsideration, or, instead, make any decision that the Tribunal could itself have made.[28] In deciding which of those courses should be followed, the court should give considerable weight to the fact that the Tribunal is the body charged with the responsibility for professional regulation, not the court. The Tribunal has developed expertise in the regulation of professions generally, and the medical profession in particular, and is usually constituted so as to include at least one medical practitioner in the exercise of this jurisdiction. Taking those matters into account, generally speaking the court should only exercise the power to itself make orders that might have been made by the Tribunal in a case in which only one conclusion is reasonably open on the established facts.[29]
[28] State Administrative Tribunal Act 2004 (WA) s 105(9).
[29] Medical Board v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [214]; Commissioner for Consumer Affairs v Carey [2014] WASCA 7 [166]; Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222 [205].
In the written submissions filed in support of the appeal, it was contended on behalf of Dr Lal that the court should exercise the jurisdiction to impose penalty and impose a period of suspension upon Dr Lal, rather than remit the matter to the Tribunal. However, during the course of argument, senior counsel for Dr Lal expressly resiled from that proposition.
The Board accepted that if the decision of the Tribunal was set aside, the length of the period during which Dr Lal should be disqualified from applying for registration should be set by the Tribunal, not the court, given the developed expertise of the Tribunal in relation to such matters. However, the Board contended that the only conclusion reasonably open on the facts was to the effect that Dr Lal's registration as a medical practitioner must be cancelled, and the court should therefore make that order.
There is much to be said for the proposition that the only conclusion reasonably open on the facts admitted by Dr Lal is that his registration as a medical practitioner must be cancelled. However, once it is accepted, as the Board accepts, that the period for which Dr Lal should be disqualified from applying for registration should be set by the Tribunal, and the matter must be remitted to the Tribunal differently constituted for that purpose, it would be undesirable to bifurcate the process relating to the imposition of penalty by undertaking part of that process in this court, and part in the Tribunal, (assuming that such bifurcation is consistent with the statutory framework). Accordingly, the matter should be remitted to the Tribunal different constituted for the imposition of penalty generally.
Orders
Leave to appeal should be granted, the appeal allowed, the decision of the Tribunal set aside and the matter remitted to the Tribunal differently constituted for redetermination.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MV
ASSOCIATE TO THE HONOURABLE CHIEF JUSTICE MARTIN4 JULY 2018
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