Marin v The Chiropractic Board of Australia - [2019] SADC 17

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
MARIN v THE CHIROPRACTIC BOARD OF AUSTRALIA
[2019] SADC 17
Judgment of His Honour Judge Clayton
19 February 2019
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - OTHER FIELDS OF PRACTICE - CHIROPRACTORS
Appeal from Health Practitioners Tribunal of South Australia – whether Tribunal erred in receiving evidence from witnesses who were not required for cross-examination - whether the Tribunal failed to take into account relevant considerations in particular the statutory distinction between findings of professional misconduct and unprofessional conduct - whether the order of the Tribunal that the appellant be permanently disqualified from applying for registration was ultra vires-whether the penalty was manifestly excessive - whether the Tribunal incorrectly used evidence in respect of one ground as proof of another ground -whether the Reasons for Decision of the Tribunal were adequate.
Held:
(1) order that the appellant be permanently disqualified from applying for registration was ultra vires.
(2) otherwise the penalty was not manifestly excessive.
(3) other orders of the Tribunal affirmed.
Health Practitioner Regulation National Law (South Australia) Act 2010 s 5; District Court Act 1991 s 42E; Bankruptcy Act 1966 sub-s 149(8); Craig v Medical Board of South Australia (2001) 79 SASR 545; Healthcare Complaints Commission v Litchfield (1997) 41 NSWLR 630; Honey v Medical Practitioners Board of Victoria [2007] VCAT 526; Commissioner for Consumer Affairs v McMurray [2017] SASCFC 16; Stead v State Government Insurance Commission (1986) 161 CLR 141; Zaidi v Healthcare Complaints Commission (1998) 44 NSWLR 82; Re: Minister for Immigration and Multicultural Affairs; Ex Parte: Durairajasingham (2000) 74 ALJR 405; Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, referred to.
Craig v South Australia (1995) 184 CLR 163, applied.
George Karounis; Ex Parte the Official Trustee in Bankruptcy [1989] FCA 417, (1989) 25 FCR 177; Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, considered.

MARIN v THE CHIROPRACTIC BOARD OF AUSTRALIA
[2019] SADC 17

Dr Robert Marin has appealed against a decision of the Health Practitioners Tribunal of South Australia which was delivered on 23 June 2017.
There were two applications before the Tribunal, first a complaint made by the Chiropractic Board of Australia (“the Board”) and secondly an appeal from a decision of the Board dated 19 June 2015 by which the Board gave notice of a decision to take immediate action.
The Amended Complaint which was the subject of the hearing alleged that the Board believed that Dr Marin had behaved in a way that constituted “professional misconduct” and/or “unprofessional conduct” within the meaning of s 5 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA). The complaint is about 25 pages in length and following introductory allegations alleges 17 separate grounds, 16 of which relate to particular patients of Dr Marin. In each case particulars are provided of the conduct which was relied upon.
The complaint and the immediate action appeal were heard by the Tribunal at the same time. The immediate action appeal was dismissed by the Tribunal and the decision to take immediate action has been superseded by the decision of the Tribunal which is the subject of the present appeal.
The hearing before the Tribunal took place over 23 days and generated 1687 pages of transcript. For most of the hearing Dr Marin represented himself.
On Friday, 17 June 2016, at a time when 1606 pages of transcript had already been produced and Dr Marin was being cross-examined by counsel for the complainant, Dr Marin forwarded an email to the Chair of the Board stating:
After six months of the tribunal and after day seven of 10 days in the witness stand it is abuse.
Over the last six months I asked for mediation four times, and each time rebuffed or ignored when I was advised that mediation was welcome. Finally advised to accept all your findings, even where I was not the chiropractor involved, and the medical experts misled AHPRA. If I did accept, would then leave me vulnerable to attack on legal grounds.
I’ve come to the conclusion that it is a futile process to continue to seek reason in an unreasonable environment. It is dismaying that the chiropractic board, in using six experts against me, five are not practising chiropractors.
AHPRA believes it has presented enough information to have been deregistered. To continue appears to be wasting everybody’s time when all options lead to the same place. On this basis I will not be answering any further questions from AHPRA, and nor intend to be present at the next Tribunal hearing.
My actions are not intended to be disrespectful of the process, nor of the individuals involved. I am financially bankrupt.[1]
[1] T1606.
Dr Marin did not attend when the hearing resumed on Tuesday, 21 June 2016. The Tribunal was advised of the email received from Dr Marin and that on 20 June 2016 an email message had been sent to Dr Marin by the Australian Government Solicitor advising Dr Marin that if he did not attend the hearing on 21 June without an explanation the Tribunal would be invited to continue to hear and determine the Board’s complaint in his absence. The email advised that the Board would submit that Dr Marin’s registration should be cancelled and he should be permanently disqualified from practising as a registered chiropractor in Australia.[2] Dr Marin did not respond to that email.
[2] AB 1610.
On 21 June 2016 the President of the Tribunal accepted the suggestion of counsel that the Tribunal contact Dr Marin giving him an opportunity to attend on the following day and advising that if he did not attend the Tribunal would continue to hear submissions put by the Board and determine the complaint in his absence.[3] Notwithstanding the email from the Tribunal Dr Marin did not attend on Wednesday, 22 June 2016 and there was no response to the email. Counsel for the Board invited the Tribunal to find that the case of Dr Marin was closed and that the Tribunal should hear submissions. The President then fixed a timetable which required written submissions to be filed and served by the complainant by Friday 8 July 2016 and for any written submissions from Dr Marin to be filed and served by 22 July 2016. The hearing was adjourned to Tuesday, 26 July 2016 for the parties to speak to written submissions.
[3] AB 1610.
When the hearing resumed on Tuesday 26 July 2016 Dr Marin did attend. The fact that he had abandoned his defence and his cross-examination had not been completed does not appear to have been of consequence. Counsel for the complainant provided written submissions and made extensive oral submissions.[4]
[4] AB 1622-1681.
On Friday, 26 August 2016 Dr Marin requested more time to prepare his submissions. He was given an extension to Friday 30 September 2016 to file written submissions and the hearing was adjourned to Wednesday 9 November 2016.[5] The appeal book does not contain transcript of what, if anything, occurred on 9 November 2016 and that date is not shown as a hearing date on the front sheet of the Reasons for Judgment.
[5] AB 1686.
The Reasons of the Tribunal, which amount to 148 pages, were delivered on 23 June 2017. In the Reasons the Tribunal said that it was satisfied to the requisite degree that the complainant had proved grounds 1-7 inclusive and grounds 10-16 inclusive and it found that the respondent’s conduct set out in those grounds was professional misconduct as defined in s 5.[6] The Tribunal was also satisfied to the requisite degree that the complainant had proved ground 8 and it was of the opinion that the respondent’s conduct set out in that ground was professional misconduct.[7] In addition, the Tribunal was satisfied to the requisite degree that the complainant had proved ground 17 which conduct was professional misconduct.[8] There are therefore 17 separate findings of professional misconduct.
The Tribunal said:
526.The respondent’s conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. In addition his conduct is such that he could not be regarded as being a fit and proper person to hold registration in his profession. His attempts to mislead the Tribunal by falsifying documents is but one example that leads to the conclusion that he is not a fit and proper person.
527.Despite having gone through a previous hearing in 2008, which involved 10 of the respondent’s patients whose complaints are virtually identical to the complainants made by patients or former patients/clients of the respondent in these proceedings, the respondent appears to have learnt nothing. Further he has breached undertakings he gave.[9]
[6]    AB 1929 para 523.
[7]    AB 1929 para 524.
[8]    AB 1929 para 525.
[9]    AB 1929.
Ground 9 of the complaint related to the failure of Dr Marin to disclose information which he was required to disclose pursuant to Schedule 5 of the National Law. The Tribunal found that the Respondent did not disclose the information and that ground 9 was proved to the requisite degree. A contravention of the National Law is included in the definition of “unprofessional conduct.[10]
[10] AB 1930 para 529.
As to the Immediate Action Appeal the Tribunal said:
529.The Immediate Action Appeal is the Subject Matter of Action Number 5504 of 2015 being an Appeal by the Respondent from a decision dated 19 June 2015 wherein the Board gave notice of a decision to take immediate action. During the course of these proceedings the Tribunal has heard extensive evidence relating to matters which are the subject of the immediate action appeal.
530.The evidence that has been adduced clearly confirms the serious risk component referred to in section 156 of the National Law. Also established by the evidence was the necessity to take immediate action to suspend. The complainant gave some examples namely the breach of undertakings, the respondent’s registration had conditions placed upon it as regards weight loss which he breached, the respondent’s delayed responses to requests for information coupled with not providing records and his attempts to hide behind his brother as regards the weight loss entity Simply Certain.
531.The Tribunal supports the decision that it was necessary to take immediate action to suspend the respondent’s registration. The appeal by the respondent from the decision of the Chiropractic Board to take immediate action is dismissed.[11]
[11] AB 1930.
The decision of the Tribunal on penalty
After hearing submissions, the Tribunal handed down its decision on penalty on 30 August 2017. Counsel for the complainant and Dr Marin had both provided written submissions and spoken to those submissions. In its Reasons the Tribunal noted:
·It was satisfied that the complainant had proved to the requisite degree the various grounds set out in the complaint the end result being that the respondent’s conduct in the various grounds amounted to professional misconduct. [12]
[12] Para 23, AB 1938.
·The Tribunal had found that the respondent was not a fit and proper person to hold registration in his profession.[13]
[13] Para 24, AB 1938.
·The Tribunal was concerned that Dr Marin both during the hearing and when making submissions had demonstrated no insight into his behaviour. That concern was compounded by the fact that in 2008 Dr Marin had gone through an earlier hearing involving 10 patients whose complaints were virtually identical to the complaints in the present proceedings. Coupled with that was the fact that Dr Marin had breached the undertakings that he gave following the hearing in 2008.[14]
[14] AB 1938 para 25.
The Tribunal said:
26The protection of the public is the paramount consideration when considering the purpose of the proceedings and the imposition of discipline on the respondent. For the protection of the public only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are entitled to be registered.[15]
[15] AB 1938 para 26.
The Tribunal referred to the reasons of the Full Court of the Supreme Court of South Australia when it discussed the purpose of disciplinary proceedings in Craig v Medical Board of South Australia[16]. The Tribunal also referred to Healthcare Complaints Commission v Litchfield[17] and Honey v Medical Practitioners Board of Victoria[18] and continued:
[16] (2001) 79 SASR 545 at 553-555.
[17] (1997) 41 NSWLR 630 at 638.
[18] [2007] VCAT 526 at [43].
28.The Tribunal regards cancellation of registration as the appropriate sanction for the respondent’s conduct which has continued over a lengthy period of time and occurred in the context of the earlier proceedings in 2008. Further the demonstrated lack of insight on the part of the respondent leads the Tribunal to the decision that he should be permanently disqualified from applying for registration as there is a complete lack of confidence that going forward he would abide by the standards applicable to his profession.[19]
[19] AB 1940 para 28.
The Tribunal made the following orders:
1.     The respondent is reprimanded in the strongest possible terms.
2.The respondent is to pay a fine of $20,000 to the complainant within 28 days from 30 August 2017 (that being the date on which the orders were delivered).
3.The respondent’s registration as a chiropractor is cancelled.
4.The respondent is permanently disqualified from reapplying for registration.
5.The respondent is prohibited from providing any health services including weight loss, dietary advice and massage services, whether remunerated or not, that utilise his skills and knowledge gained as a chiropractor.
6.The respondent is to pay the complainant’s costs of and incidental to the proceedings to be agreed or, in default of agreement, to be adjudicated.[20]
[20] AB 1940.
The Legislative framework
The hearing was referred to the Tribunal pursuant to Division 12 of the Health Practitioner Regulation National Law (South Australia) Act 2010. Section 193 relevantly provides:
193—Matters to be referred to responsible tribunal
(1)A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if—
(a)     for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason—
(i)the practitioner has behaved in a way that constitutes professional misconduct;
(2)     The National Board must—
(a)     refer the matter to—
(i)the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred; or
Section 196 relevantly provides:
196—Decision by responsible tribunal about registered health practitioner
(1)      After hearing a matter about a registered health practitioner a responsible tribunal may decide -
(a)the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b)     one or more of the following—
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii)the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii)the practitioner has behaved in a way that constitutes professional misconduct;
…
(2)     If a responsible tribunal makes a decision referred to in (1) (b), the Tribunal may decide to do one or more of the following—
(a)     caution or reprimand the practitioner;
(b)impose a condition on the practitioner’s registration, for example-…
(c)require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
(d)suspend the practitioner’s registration for a specified period;
(e)     cancel the practitioner’s registration.
(2)      If the responsible tribunal decides to impose a condition on the practitioner’s registration, the tribunal must also decide a review period for the condition.
(4)     If the tribunal decides to cancel a person’s registration under this Law or the person is not hold registration under this Law, the tribunal may also decide to-
(a)disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b)prohibit the person, either permanently or for a stated period, from:
(i)providing any health service or a specified health service; or
(ii)     using any title or specified title.”
The term “professional misconduct” is defined by section 5 in the following way:
professional misconduct, of a registered health practitioner, includes:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
It is to be noted that “professional misconduct” is not confined to the conduct specified in (a), (b), and (c) but it includes that conduct.
The term “unprofessional conduct” is relevantly defined by section 5 in the following way:
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes—
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)     a contravention by the practitioner of—
(i)      a condition to which the practitioner’s registration was subject; or
(ii)     an undertaking given by the practitioner to the that registers the practitioner; and
(c)     the conviction of the practitioner…
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person’s well-being; and
…
The complaint
Section 193 requires the Board to refer the “matter” to the responsible Tribunal if the Board reasonably believes based on a notification or any other reason that the practitioner has behaved in a way that constitutes professional misconduct. It is to be noted that s 193 does not require the Board to refer matters that constitute unprofessional conduct or unsatisfactory professional performance, although section 196(1) does permit the responsible tribunal to decide that the practitioner has behaved in a way that constitutes unprofessional performance or unprofessional conduct.
The section does not require the laying of a complaint but simply requires the referral of the “matter” to the Tribunal. The requirement for a complaint has its genesis in the practice of the South Australian Health Practitioners Tribunal.

The substantive allegation in the Amended Complaint is:
Complaint details
The Chiropractic Board of Australia (the Board) pursuant to cl 193 of Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA), refers for hearing and determination by this Tribunal a matter about the Respondent, namely that the Board reasonably believes that the respondent has behaved in a way that constitutes “professional misconduct” and/or “unprofessional conduct”, within the meaning of s 5 of the National Law (the definition)
It is to be noted that the complaint alleges both “professional misconduct” and/or “unprofessional conduct”. The complaint does not allege an offence but simply refers the “matter” for hearing.
Section 196 provides that after hearing the “matter” the Tribunal may decide that the practitioner has behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct, or professional misconduct.
Under the headings “Jurisdiction” and “Relevant Background” the complaint sets out a lengthy preamble and then under the heading “Findings sought” the complaint sets out the principal allegation against Dr Marin. The wording of the complaint is not easy to follow and I set out the paragraph verbatim:
18.In respect of the allegations particularised hereunder, it is asserted by the Complainant Board:
18.1 that, insofar as the conduct of the Respondent occurred before 1 July 2010, by virtue of item 40 and 41 of Sch 1 to the Act (namely the 2 complaints of Susan Miller and Brad Harrison, mentioned at paragraph 4 above), it constituted “professional misconduct” within the meaning of s 5 of the National Law, and as particularised in para 18.2 below, or “unprofessional conduct” within the meaning of s 5 of the National Law, and as particularised in para 18.3 below.
18.2 that, insofar as the conduct of the Respondent occurred on or after 1 July 2010, it constituted “professional misconduct” within the meaning of that term as set out in s 5 of the National Law including:
(a)the conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience (see the definition of professional misconduct in s 5 (a) of the National Law);
(b)the conduct amounted to more than one instance of unprofessional conduct that, when considered together, was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience (see the definition of professional misconduct in s 5 (b) of the National Law); and/or
(c)the conduct, whether occurring in connection with the practice of the health practitioner’s profession or not, was inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
18.3 Further, or in the alternative to 18.2 above, the conduct engaged in by the Respondent constituted “unprofessional conduct” within the meaning of that term as set out in s 5 of the National Law in that it was well lesser standard than that which might be expected by the public or the Respondent’s professional peers including:
(a) it constituted contravention of an undertaking given by the Respondent to the Former Board and therefore the Board by virtue of s 291 of the National Law within the meaning of para (b) (ii) of the definition of unprofessional conduct in s 5 of the National Law; and/or
(b) it constituted the provision to a patient of health services of the kind that were excessive, unnecessary or otherwise not reasonably required for the patient’s well-being within the meaning of para (b) (i) of the definition of unprofessional conduct in s 5 of the National Law.
The complaint set out in detail 17 grounds with particulars of each ground.
The Appeal
An appeal lies from the decision of the Tribunal to the Administrative and Disciplinary Division of the District Court.[21] The conduct of the appeal is governed by section 42E of the District Court Act 1991 which requires the Court to act according to equity and good conscience and the substantial merits of the case without regard to technicalities and legal forms and directs that the court must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
[21] Health Practitioner Regulation National Law (South Australia) Act 2010, s 23.
On 15 October 2018 Dr Marin lodged an Amended Notice of Appeal which listed 8 grounds. At the hearing of the appeal counsel advised that some of those grounds were not pursued. The grounds in the Amended Notice of Appeal which were not abandoned are:
Ground 2
2.The South Australian Health Practitioners Tribunal (“the Tribunal”) failed to afford the Appellant procedural fairness prior to making the decision, in circumstances where:
2.1     The appellant was unrepresented and the appellant repeats the matters in ground 1 above;
2.2     In respect of ground 11 of the complaint the Tribunal relied upon the written evidence of MK in circumstances where MK was not made available for cross examination and the appellant objected to the Tribunal hearing evidence without MK being made available [390] of the Decision;
2.3     In respect of ground 14 of the complaint the Tribunal relied upon the written evidence of JG when JG did not give oral evidence before the Tribunal, see [434] of the Decision.
Ground 4
4.The Decision was invalid and/or unlawful because it was unreasonable or irrational in that it was legally unreasonable or irrational to permanently disqualify the appellant from reapplying for registration and prohibiting the appellant from providing any health services including weight loss, dietary advice and massage services whether remunerated or not, that utilise his skills and knowledge gained as a chiropractor, in circumstances where:
4.1. Such an approach which did not comply with the requirements of section 196 (4) of the Health Practitioner Regulation National Law (South Australia) Act 2010 (“the National Law”)
Ground 5
5.The decision was invalid and/or unlawful because it was unreasonable or irrational in that it was legally unreasonable or irrational to permanently disqualify the appellant from reapplying for registration and there are cogent reasons to depart from the decision having regard to:
…
5.2 The alternative regulatory options contained in the Act and in particular those contained in Schedule 2 of the Act (“the National Law”);
Ground 6
6.Imposed a penalty that went beyond the range of penalties supported by the relevant legislative provisions.
Ground 7
7.     Imposed penalties that were manifestly excessive in all the circumstances.
At the commencement of their submission Counsel for the Appellant advised that the matters raised on appeal were:
Firstly, that the Tribunal erred in receiving the evidence of MK and JG in circumstances where MK and JG were not presented for cross examination. This constituted a denial of procedural fairness.
Secondly, there was a failure to take into account relevant considerations, particularly the statutory distinction between findings of professional misconduct and unprofessional conduct. This, and the imposition of a penalty that was ultra vires, combined with the denial of procedural fairness, all demonstrate irrationality in the decision-making process of the Tribunal. As a result, the Tribunal’s findings should be set aside and the matter remitted to be dealt with according to law.
Thirdly, and in any event, the penalty was manifestly excessive and ultra vires the power conferred upon the Tribunal by section 196(4) of the Health Practitioner Regulation National Law (South Australia) Act 2010.[22]
[22] Outline of Submissions for the Appellant, para 1.
Counsel submitted that the matters identified and the denial of procedural fairness raised legal issues which were determinative of the result reached by the Tribunal with the consequence that the appeal should be allowed and the decision of the Tribunal rescinded. Reference was made to Commissioner for Consumer Affairs v McMurray[23] and Stead v SGIC[24].
[23] [2017] SASCFC16.
[24] (1986) 161 CLR 141 [145], Outline of Submissions for the Apellant, para 2,27.
Counsel submitted that the central matters raised by the grounds of appeal identified jurisdictional error in the reasoning of the Tribunal and that the Tribunal’s ultimate decision and the conclusions made by it on legal issues that were determinative of the result were infected by error.[25]
[25] Outline of Submissions of the Appellant para 28.
It was submitted that where a decision constitutes a denial of procedural fairness that was determinative the decision will be accorded no weight[26] and that where a decision is based on a combination of several factual findings and the court holds that one or more of those findings was wrong or was given inappropriate weight in the decision-making process or was based on a relevant material, that the decision and the reasons for it will be given little or no weight.[27]
Alleged denial of procedural fairness by receiving the evidence of MK and JG in circumstances where MK and JG were not presented for cross-examination.
[26] McMurray per Blue J at [47]; Outline of Submissions of the Appellant, para 30.
[27] Midwinter v Commissioner for Consumer Affairs [2006] SADC 93 [38] and Glen v Registrar of Firearms [2011] SADC 22 at [85], [87]; Outline of Submissions of the Appellant para 31.
MK and JG were former patients of Dr Marin who had complained about his conduct.
MK
MK was the subject of ground 11 in the complaint which is considered at paragraphs 390 to 406 of the reasons of the Tribunal. She was unfit to attend before the Tribunal to give oral evidence. The Tribunal explained the basis on which it received the evidence of MK in the following way:
The Tribunal permitted evidence to be led regarding Ground 11 and it is entitled to inform itself as it sees fit and considers that it is in a position to properly consider what weight should be given to the statement of MK in the circumstances.[28]
[28] Reasons para 390.
The Reasons of the Tribunal record that the particulars set out in paragraphs 29.1 to 29.6 inclusive of the complaint were not disputed. The appeal does not challenge that finding. However, it appears from the Reasons that Dr Marin had denied making the statement on 26 July 2013 alleged in paragraph 29.3 but the Tribunal did accept “the objective evidence of the written statement” (of MK).[29] I do not understand why a written statement which was not tested by cross-examination should be treated as “objective evidence” but nothing turns on this.
[29] Reasons para 391.
The Tribunal preferred the statement of MK alleged in particular 29.5 and 29.6 as to a conversation with Dr Marin on 1 August 2013 over the recollection of Dr Marin. The Tribunal was influenced by the fact that Dr Marin was unable to produce notes of the consultation.[30]
[30] Reasons para 392.
Particular 29.7 alleged that radiographs were taken with no clinical justification. The Tribunal noted that there is no justification for plain x-rays as part of a weight loss program.[31] After considering documentation the Tribunal found that exhibit C 20 had been altered for the proceedings.[32] The Tribunal was satisfied that in particular 29.7 was made out and there was no clinical justification for taking radiographs and no informed consent. The written evidence of MK is not before the court but it was not relevant to the finding made by the Tribunal. It is difficult to see how Dr Marin has been prejudiced by his inability to cross-examine MK as to the evidence supporting this particular 29.7.
[31] Reasons para 393.
[32] Reasons para 396.
Particular 29.7.2 alleges that Dr Marin caused MK to commence and participate in a weight loss program which involved the consumption and use of products without obtaining an adequate history, conducting an adequate examination and/or obtaining relevant information from the general practitioner or other specialist medical practitioners to assess whether the program and products were suitable for MK.[33] The Tribunal noted that MK had said there was no examination but that examination records produced at different times were not the same and there was no reliable or contemporaneous clinical record.[34] The Tribunal also noted that the respondent made no attempt to obtain information from MK’s general practitioner about her condition and whether or not the products (which he provided) may have adverse consequences as far as the medication she was taking was concerned.[35] The Tribunal considered that the respondent had fallen far short of his professional obligations and was satisfied that particular 29.7.2 had been proved to the requisite degree.[36] The finding as to paragraph 29.7.2 does not depend only on the untested evidence of MK and there is nothing before the court to suggest that the cross examination of MK may have produced a different result.
[33] Reasons para 398.
[34] Reasons para 400.
[35] Reasons para 401.
[36] Reasons para 402.
Particular 29.7.3 alleges that Dr Marin provided MK with unlabelled products to use and consume. The Tribunal noted that apart from one product which was labelled there was no dispute that Dr Marin had provided MK with unlabelled products.[37]
[37] Reasons para 403.
Particular 29.7.4 alleges that Dr Marin made disparaging remarks about MK’s general practitioner. The Tribunal referred to the statement of MK that Dr Marin said to her about her GP “is he telling me what to do - he is an idiot - I am a professional doctor”. Dr Marin denied being disparaging but did not offer an explanation as to what he said. The Tribunal noted that Dr Marin had no notes of the discussion.[38] This topic could have been the subject of cross-examination but the substance of this ground is insignificant in the context of the other matters relied upon by the Board. The reasons do not identify any finding as to the evidence.
[38] Reasons para 404.
Particular 29.7.5 alleges that Dr Marin caused MK to contact his clinic by way of advertising material which contains misleading information. The Tribunal said that the content of the advertisement had been previously referred to and was quite clearly misleading.[39] This finding did not depend on the untested evidence of MK.
[39] Reasons para 405.
Particular 29.7.6 alleges that the respondent exploited the vulnerability or lack of knowledge of MK. The Tribunal accepted that the persons who attended the clinic in response to the advertisements seeking weight loss were vulnerable and that the respondent obtained a financial benefit.[40] The finding did not depend upon the untested evidence of MK.
[40] Reasons para 406.
The only evidence of MK which might usefully have been tested by cross-examination is the evidence relating to particular 29.7.4. Dr Marin has not established that cross-examination on this topic might have assisted his case.
I am not satisfied that the cross-examination of MK would have made any significant difference to the findings of the Tribunal with respect to ground 11 or the ultimate conclusions of the Tribunal.
JG
Ground 14 relates to JG who was also was unfit to give evidence for medical reasons.
The Tribunal found that available records proved certain of the particulars, that an advertisement spoke for itself and that the husband of JG gave evidence to the Tribunal in relation to an appointment that took place on 8 November 2014 and events that followed.[41]
[41] Reasons para 234.
The Tribunal noted that the particulars set out in paragraphs 32.1 to 32.6 inclusive of the amended complaint were not disputed.
Particular 32.7.1 alleges that the respondent caused JG to contact the clinic by way of advertising material which contained misleading information.
Particular 32.7.2 alleges that the respondent informed JG in alarmist terms that she had a heart condition. In a letter which might have been the subject of cross-examination JG said that she had been told that she had a heart problem. Her husband recalled JG saying that she had a heart problem. The Tribunal found that whilst the respondent denied saying there was a heart problem that could cause heart failure the Tribunal preferred the collective evidence of JG and her husband.[42]
[42] Reasons para 441.
Particular 32.7.3 alleges that the respondent caused JG to commence and participate in a weight loss program without obtaining an adequate history, conducting an adequate examination and obtaining relevant information from her treating general practitioner to assess whether the program and the products were suitable. The Tribunal found that if a cardiovascular condition was suspected the respondent should have sought advice from JG’s general practitioner.[43]
[43] Reasons para 442.
Particular 32.7.4 alleges that the respondent provided JG with unlabelled products to use and consume. The respondent claimed there was no requirement to provide any list.[44]
[44] Reasons para 443.
Particular 32.7.5 alleges that the respondent exploited the vulnerability or lack of knowledge of JG in relation to the weight loss program the result of which included the respondent obtaining a financial benefit. The Tribunal said:
The general vulnerability of a weight loss patient has been referred to above. JG told the respondent that she wished to get off high blood pressure tablets. The respondent told JG in the presence of her husband that she had a heart problem with a risk of heart failure. Both JG and her husband were shocked by this news. The respondent then attempted to have JG sign up to the weight loss program and left them for a few minutes to consider. The respondent indicated that he could help and JG pays over $2480.[45]
[45] Reasons para 444.
Particular 32.7.6 alleges that the respondent had breached conditions 1, 2 and 6 which applied from 9 April 2014. Condition 1 required the respondent to take a comprehensive history. The Tribunal found that he had failed to do so. The Tribunal also found that Dr Marin did not provide JG with advice as to the risks of a high potency therapeutic formula administered in his weight loss program as required by condition 2. Dr Marin did not produce a record of advice. Condition 6 required Dr Marin to ensure that all nutritional supplements which he supplied were clearly labelled but he provided unlabelled products.[46]
[46] Reasons para 445.
The reasons of the Tribunal do not identify any written evidence provided by JG which could have provided the basis for a cross-examination which might have altered the outcome.
Counsel for the appellant submitted that in the context of a disciplinary hearing, particularly one in which a practitioner is facing serious allegations of professional misconduct and where it is important to assess the truthfulness and character of the witnesses, including by observation of demeanour, cross-examination should be permitted. They submitted that where a witness is not made available for cross-examination the evidence should be excluded.[47]
[47] Outline of submissions for the appellant para 59.
Counsel submitted that the failure to afford the appellant the opportunity to cross-examine the complainants in respect of the allegations made in respect of grounds 11 and 15 is indicative of jurisdictional error with respect to legal issues which were determinative of the result reached by the Tribunal with the consequence that the finding of the Tribunal with respect to grounds 11 and 15 should be rescinded.[48]
[48] Outline of Submissions for the Appellant, para 60 referring to McMurray.
Counsel for the Board submitted that there is no absolute right to cross-examination.[49]
[49] T80.26. Referring to Young J in GPI.
Section 18(9)(b) provides that the Tribunal is not bound by the rules of evidence and may inform itself as it sees fit.

Having considered the substance of grounds 11 and 15 and the findings with respect to those grounds I have reached the conclusion that cross-examination of MK and JG could not have altered the decision of the Tribunal and that the cross-examination of those persons was not required for a fair hearing. In order to make the relevant findings with respect to grounds 11 and 15, the Tribunal had available to it evidence other than the disputed written evidence of MK and JG. For example, the case of JG some of the findings were justified by the evidence of her husband.
I do not accept the submission that there was procedural unfairness to Dr Marin by the Tribunal accepting assertions from witnesses who were never cross-examined.[50]
Alleged failure to take into account considerations, particularly the statutory distinction between findings of professional misconduct and unprofessional conduct.
[50] Outline of Submissions for the Appellant para 63.
I reject the appellant’s submission that the Tribunal did not assess in respect of each individual count whether the subject matter of the complaint was established by admissible evidence at trial. The Tribunal did assess the evidence in respect of each individual count.[51] The appellant complains:
66.Rather than considering this distinction (whether professional misconduct or unprofessional conduct) on each individual count in respect of which an adverse finding was made (which was the totality of the complaint), the Tribunal has simply made the most severe finding against the appellant, without any justification or by reference to the alternative finding of unprofessional conduct.
67.In summary, rather than considering each of the individual counts and weighing the admissible evidence separately on each, the Tribunal appears to have simply made the most severe finding conceivable on each and every ground alleged, and then imposed the harshest penalty conceivable, without considering available alternatives, or even whether there was statutory power to act as it did.[52]
[51] Outline of Submissions for the Appellant para 65.
[52] Outline of submissions for the appellant paras 66-67.
The appellant did not argue that in any particular case the appropriate finding should have been unprofessional conduct rather than professional misconduct.
In the Summary of Conclusions/Findings in its Reasons the Tribunal referred to the statutory definitions of both “professional misconduct” and “unprofessional conduct” thereby indicating that it was conscious of the distinction between the two and then concluded that the conduct of Dr Marin set out in the grounds was professional misconduct.[53]
[53] Outline of Submissions for the Appellant paras 522-525.
It is significant that there is no challenge to the Tribunal’s actual findings of fact; but only to its categorisation of the impugned conduct. Because the Tribunal had referred to each relevant definition in s 5 it can be inferred that it had concluded that the conduct was professional misconduct, not unprofessional conduct.
The terms of the complaint only required one ultimate finding of either professional misconduct or unprofessional conduct. The findings of professional misconduct on each of the grounds were subsidiary to the principal allegation. The question for the Tribunal was whether the total of the conduct alleged established professional misconduct or unprofessional conduct. The findings of professional misconduct with respect to each of the grounds did not give rise to penalties in their own right.
If the Tribunal had incorrectly categorised the conduct alleged in the 17 separate grounds as professional misconduct, rather than unprofessional conduct, the ultimate finding of professional misconduct would remain the same because of subparagraph (b) of the definition of “professional misconduct”. Sub-paragraph 18(2)(b) of the complaint asserted that more than one instance of unprofessional conduct fell within paragraph (b) of the definition of “professional misconduct” in s 5 of the Health Practitioner Regulation National Law (South Australia) Act 2010.
There is no basis for the court to set aside the ultimate finding of professional misconduct.
I find below that the order in paragraph 2 of the orders of the Tribunal that Dr Marin be permanently disqualified from reapplying for registration was not authorised by the legislation. However, I do not accept the submission[54] that the imposition of that penalty coupled with a denial of procedural fairness demonstrate irrationality in the decision-making process of the Tribunal. The imposition of a penalty which was ultra vires did not give rise to the substantive findings of the Tribunal. It was the other way around. It was the findings of the Tribunal as to the conduct of Dr Marin which came first and the ultra vires penalty followed. The ultra vires penalty can be rescinded without doing injustice to the balance of the Tribunal’s reasons.
[54] Outline of Submissions of the Appellant para 1.2.
I reject the submission of the appellant[55] that the matters identified raise legal issues which were determinative of the result. The appellant has not identified any relevant considerations which the Tribunal failed to take into account.
Written submissions under the heading “The identification of jurisdictional error in the decision of the Tribunal-overview.”
[55] Outline of Submissions of the Appellant, para 2.
I do not quarrel with any of the legal propositions which are asserted. However, the submissions do not identify any jurisdictional error in this case. The evidence does not establish that the Tribunal exercised its powers in an unreasonable manner either because of improper motives or an error of judgement.[56]
Appeal against penalty.
[56] See Outline of Submissions for the Appellant para 42 referring to Minister for Immigration and Citizenship v Li [2013] HCA 18,(2013) 249 CLR 332 at 24-30.
Was there a disqualification for a specified period?
Clause 196 of the Health Practitioner Regulation National Law (South Australia) Act 2010 provides that if a Tribunal decides that a practitioner has behaved in a way that constitutes professional misconduct the Tribunal may disqualify the person from applying for registration as a registered health practitioner for a specified period.
The Tribunal ordered that Dr Marin be permanently disqualified from reapplying for registration.
One question which arises on this appeal is whether the words “for a specified period” in subclause 196(4)(a) create a power to disqualify a person permanently from applying for registration.
Counsel for the Appellant submitted that the use of the term “specify” or “specified” in legislation generally imports a requirement for the relevant matter to be stated in explicit and definite terms.[57] They submitted that the “period” referred to in sub-section (4)(a) can only be specific when it is finite and that the idea of a time of indefinite duration is the very antithesis of the power granted to the Tribunal by clause 196(4).[58]
[57] Outline of Submissions for the Appellant para 52 Referring to Pearce and Geddes, Statutory Interpretation in Australia (6th Edition, 2006) pp368-377.
[58] Outline of Submissions for the Appellant para 53.
Counsel submitted that the order made by the Tribunal impinged on the decision-making of the relevant regulatory authority in the future. They also submitted that in the event that there was power in the Tribunal to make such an order, there was no evident justification for the decision to impose that kind of penalty.[59]
[59] Outline of Submissions for the Appellant para 54.
In re George Karounis; Ex Parte the Official Trustee in Bankruptcy[60] Sheppard J had to consider whether an order of the court had specified a period for the purposes of sub-section 149(8) of the Bankruptcy Act 1966. His Honour said at [18] and [19]:
[18]The initial question is whether, for the purposes of subsection 149 (8), the order in question specifies a period, being a period exceeding 5 years commencing on the date of the bankruptcy. I was referred to the dictionary meanings of the words “specify” and “period”. The Macquarie Dictionary defines the word “specify” as meaning to mention or names specifically or definitely or to give a specific character to. It may also mean to name or state as a condition and to make a specific mention or statement. “Specific” means, inter-alia, specified, precise or particular or peculiar or proper as to something as qualities, characteristics, effects. one of the meanings.” Is any specified divisional portion of time. That is the meaning which I think the word bears here, particularly in the light of the various periods of time which are mentioned in the section.
[19]In Uniting Repairing Co-Ltd v Glover[61] the New Zealand Court of Appeal was concerned with a number of questions, one of which was whether an order made under section 3 (5) of the Factories Amendment Act 1936 (NZ) was expressed to be for a “specified period”. In the course of his judgment Myers CJ said (P164) that the expression “specified period” must mean that the period must be fixed, definite and certain. Likewise Kennedy J said (P1 70) that “specified” meant definitely or specifically mentioned; determined; fixed; or settled.
[60] [1989] FCA 417, (1989) 25 FCR 177.
[61] (1945) NZ LR 160.
I accept the submission of counsel that the “period” referred to in sub-clause (4)(a) can only be specific when it is finite. In my opinion the words “specified period” in the context of clause 196 of the Health Practitioner Regulation National Law (South Australia) Act 2010 refer to a specified portion of time and they do not mean “indefinitely”. It follows that the second sentence in paragraph 3 of the orders of the Tribunal, namely that “The respondent is permanently disqualified from reapplying for registration” was ultra vires and the appeal should be allowed for the limited purpose of rescinding that order.
Was the penalty manifestly excessive?
The appellant submitted that the penalty was manifestly excessive.[62]
[62] Outline of Submissions of the appellant para 1.3.
The Tribunal gave careful consideration to the evidence in reasons which extended to 148 pages. In their reasons on penalty they said:
The findings against the respondent are detailed and are devastating. The Tribunal has found professional misconduct in two respects namely that the conduct was substantially below the expected standard but also the conduct demonstrates that the respondent is not a fit and proper person to hold registration in the profession.[63]
[63] Reasons on penalty para 5.
Later the Tribunal gave the following summary:
9. The findings of the Tribunal are such that the respondent is unfit to the practice and remains so indefinitely. The following few examples underpins this position namely:
·The respondent has shown disregard for clinical assessment of his patients who come in for chiropractic treatment.
·The respondent by his use of x-rays has exposed people to x-rays with no clinical justification. This is particularly reprehensible in regard to children under 12 and indefensible in regard to weight loss clients.
·The respondent has used x-rays as a platform to deliberately exaggerate his diagnosis to his chiropractic patients for his own commercial benefit. He has also engaged in that behaviour with two massage clients. He also uses the heart rate variability test in a similar way. Persons become alarmed about their condition and agree to enter into onerous contracts for significant lump sum payments.
·The respondent by his actions has demonstrated an ongoing lack of clinical care on his part as regards his chiropractic patients. Similarly as regards the weight loss clients this lack of care is demonstrated by a very cursory assessment of the weight loss clients who are in turn provided with questionable products which had little if any therapeutic benefit those products coming at a high cost. There was no follow-up or proper ongoing care as regards the weight loss clients particularly with respect to any health risks. The behaviour on the part of the respondent is deliberate and intentional praying upon vulnerable people to elicit significant lump sum payments.
·The presence of the CCTV in the respondent’s rooms exposed persons changing in the x-ray room and there was evidence of the respondent listening in on the conversations of potential patients, both aspects being in gross breach of privacy.
The respondent breached his undertakings provided by him in 2008 and further breached conditions imposed upon him as regards weight loss clients.[64]
The Tribunal noted that Dr Marin had been suspended for one month in 2008 and that he had provided various undertakings. They continued:
10.Despite this since that time the respondent has continued to engage in remarkably similar conduct. The respondent is likely to repeat such conduct in the future. This behaviour on the part of the respondent is something that is deeply ingrained and it is unlikely that he would observe professional standards in the future. He has demonstrated since 2008 and during the course of this protracted hearing disregard for those standards. He has treated the standards with contempt and disdain and has engaged in a distortion of the plain English meaning of words in those standards to suit his position.
11.The conduct of the respondent is deeply ingrained in that it has occurred across the chiropractic practice, massage clients and weight loss clients. The respondent has demonstrated no insight into this conduct and has done nothing to indicate to the Tribunal that anything will change in future. The respondent has demonstrated a willingness to mislead this Tribunal about his conduct and has tampered with and concocted records for his own purposes.
12.The public must be protected from the type of conduct engaged in by the respondent. Some of the conduct involves a risk to a person’s health and safety such as the indiscriminate use of x-rays and the sale of products in the weight loss program to anyone who will pay regardless of their health status. The public needs to be protected from such commercially exploitative and predatory behaviour.[65]
The Tribunal said:
The submissions made by the respondent demonstrate that he has no insight into the conduct that has been found to have occurred. The respondent has not shown an understanding of his failures, he has done nothing to remedy his lack of professional and management skills and he has not in any way demonstrated that he intends to observe proper professional standards in the future.[66]
[64] Reasons on penalty para 9.
[65] Reasons paras 10-12.
[66] Reasons para 22.
Dr Marin has not demonstrated that the Tribunal erred in arriving at any of those findings.
The Tribunal imposed a fine of $20,000. That is a substantial amount. The maximum specified by the legislation is $30,000. This was the second occasion on which Dr Marin was subject to disciplinary proceedings for similar conduct. In arriving at the finding that the conduct of Dr Marin was professional misconduct, the Tribunal had made separate findings on each of the 17 counts containing 117 allegations. The penalty had to take into account all of those findings. The Reasons of the Tribunal explain the seriousness of Dr Marin’s misconduct.
Neither party put any argument as to the amount of the fine. Dr Marin has not established that the penalty imposed by the Tribunal was excessive. That ground of appeal must be dismissed.
Further submissions for the appellant
Shortly prior to the hearing of the appeal Counsel for the appellant delivered an Outline of Submissions which went beyond the matters raised by the Notice of Appeal. Against the objection of Counsel for the Board, I permitted the appellant to raise the new arguments on the basis that the Board could have an adjournment to consider its position.
Counsel for the appellant complained that the Tribunal had failed to grapple with the difference between professional misconduct and unprofessional conduct.[67] They complained that the Tribunal simply went to the most serious finding and made that finding.[68] Counsel said:
… one gets the very distinct impression that the Tribunal got to a point and rather than look at the differences between the various complaints made and what might be described as the shades of grey between the types of conduct alleged, it simply went to the most conceivably serious finding open to it and made that finding, and likewise within penalty went most serious conceivable penalty it could conceive of, again without differentiating between the types of conduct that the evidence disclosed and without ever descending into an analysis of that which was professional misconduct as distinct from unprofessional conduct, and why, for example, what might be described as unprofessional conduct in fact merited the finding of professional misconduct. There’s no light and shade, there is no differentiation, it’s simply going to the extreme at every conceivable opportunity.[69]
[67] T12.4.
[68] T12.5.
[69] T12.4.
The Tribunal did specifically refer to each of the definitions and it made findings that the conduct constituted professional misconduct. In my opinion, it was not necessary to explain why the Tribunal made the finding of professional misconduct rather than a finding of unprofessional conduct. The Tribunal was satisfied that the conduct, of which it was very critical, was professional misconduct. The appellant has not established that the findings of professional misconduct were not appropriate or that the Tribunal made an error of law in this context. As I have explained it is the ultimate finding of professional misconduct on the basis of all the alleged conduct that is the finding that the appellant must disturb in order to succeed on this appeal.
Zaidi.
The appellant complains that the Tribunal used evidence under some grounds in informing itself of other grounds.[70]
[70] T14.3.
The Tribunal accepted the submission of counsel for the Board that the Tribunal may have regard to evidence relating to other grounds when considering a particular ground. The Tribunal was referred to Zaidi v Healthcare Complaints Commission[71] where Mason P, with whom Priestley JA and Powell JA agreed, said that statements of appellate courts with respect to criminal proceedings did not apply in relation to disciplinary proceedings before the Medical Tribunal. Mason P had noted that there were points of difference between disciplinary proceedings in the United Kingdom and New Zealand on the one hand and New South Wales on the other. Those differences were:
·The civil standard of proof applied in matters before the Healthcare Complaints Commission whereas the criminal standard applied to the appellate court authorities referred to.
·The overseas Tribunals are presided over by medical practitioners and lay persons whereas the New South Wales Tribunal is chaired by a judge.
·The New South Wales Tribunal is not bound to observe the rules of evidence.[72]
[71] (1998) 44 NSWLR 82.
[72] Reasons para 139.
The Tribunal said with respect to those remarks of Mason P:
140. As the complainant has noted, all of these points of distinction relevantly apply to these proceedings. The Tribunal’s view is that it may have regard to evidence relating to other grounds when considering a particular ground. This view is reinforced by the fact that the pattern of behaviour and conduct on the part of the respondent in relation to each of the grounds is remarkably similar. The conduct in the previous proceedings referred to above is remarkably similar to the conduct the subject matter of these proceedings.
141.The complainant in its written submissions summarises the pattern of conduct on the part of the respondent as follows:
·    Inadequate clinical assessment.
·    Indiscriminate use of plain film x-ray.
·    Use of x-ray films (and/or heart rate variability test for weight loss clients) as a platform upon which to exaggerate the severity of the patient’s condition.
·    Pressure to enter into a substantial fee payment for his financial benefit.
·    Provision of a service/product which lacks professionalism and individual care and attention.[73]
[73] Reasons para 140 and 141.

Proceedings before the Tribunal are regulated by the Health Practitioner Regulation National Law (South Australia) Act 2010. There are provisions which have particular relevance to the hearing of this matter. Subsection 18(9) provides:
(9)     The Tribunal—
(a)     is not bound by the rules of evidence and may inform itself and any matter as it thinks fit; and
(b)     must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.”
Subsection 19 (7) provides:
(7)     In the course of any proceedings, the Tribunal 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 a Territory of Australia, 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, judgement, or reasons for judgement, of any such court, tribunal or body that may be relevant to the proceedings.
Counsel for the board submitted that sub-section 19(7)(b) expressly authorised the Tribunal to rely on the principle in Zaidi.[74]
[74] Respondent's Further Written Submissions para 54.
While the Tribunal accepted that it may have regard to evidence relating to other grounds when considering a particular ground[75] it did consider the specific evidence relating to each of the grounds and the appellant has not identified any ground which was not made out by the evidence with respect to that ground.
[75] Reasons 140.
Counsel for the Board advised that Dr Marin did not make any submission to the Tribunal in regard to the hearing of the complaints together or the use of evidence relating to one ground in considering another ground.[76]
[76] Respondent’s Further Written Submissions para 49.26.
It was submitted to the Tribunal by the Board that the evidence in relation to each ground was more than sufficient to prove that ground. An extensive summary of the particulars relating to each ground and the relevant evidence was attached to the written submissions to the Tribunal.[77] The submission was repeated on the appeal. That summary of the particulars and relevant evidence has not been challenged on this appeal.
[77] Respondent’s Further Written Submissions para 49.27.
It has not been established on this appeal that any ground is not supported by the evidence relating to that ground.
There is no support for the argument that the findings of the Tribunal depended upon the earlier proceedings.
I find that the Tribunal did not fall into error in the way that it applied Zaidi or in making the findings of professional misconduct with respect to each particular ground.
The adequacy of the Reasons of the Tribunal
Section 204(2)(b) of the National Law requires the Tribunal to provide reasons for the decision.
I accept the submission of the Board that the obligation to provide reasons does not extend to a line by line refutation of all the evidence.[78]
[78] Respondent's Further Written Submissions para 25 referring to Re-Minister for Immigration and Multicultural Affairs; Ex Parte: Durairajasinjham (2000) 74 ALJR 405 at [65] and Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [64].
Counsel referred to Wingfoot Australia Partners Pty Ltd v Kocak,[79] where the High Court was required to consider the adequacy of reasons which had been provided by a Medical Panel. The court said:
[79] (2013) 252 CLR 480 at 498.
43.The starting point for considering the standard required of a written statement of reasons under section 68(2) of the Act is recognition that there is in Australia no freestanding common law duty to give reasons for making a statutory decision. The duty of Medical Panel to give reasons for its opinion on a question referred to it is no more and no less than the statutory duty imposed by section 68 (2) itself. The content of that statutory duty defines the statutory standard that a written statement of reasons must meet to fulfil it.
44.The standard required of a written statement of reasons in order to fulfil the duty imposed on a Medical Panel by section 68(2) of the Act falls therefore to be determined as an exercise in statutory construction. In the absence of express statutory prescription, that standard can be determined only by a process of implication.
45.General observations, drawn from cases decided in other statutory contexts and from academic writing, about functions served by the provision of reasons for making administrative decisions are here of limited utility. To observe, for example, that the provision of reasons imposes intellectual discipline, engenders public confidence and contributes to a culture of justification, is to say little about the standard of reasons required of a particular decision-maker in a particular statutory context. The standard of reasons required even of courts making judicial decisions can vary markedly with the context.
46.Two considerations are of particular significance in determining by implication the standard required of a written statement of reasons in order to fulfil the duty imposed on a Medical Panel by section 68(2) of the Act. One is the nature of the function performed by a Medical Panel in forming and giving an opinion on a medical question referred to it. The other is the objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion.
…
54.The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.
55.The standard required of a written statement of reasons given by Medical Panel under section 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed its opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.
The comments of the High Court with respect to the obligations of Medical Panels were made in a different context but nevertheless provide guidance as to the obligations of the Tribunal under s 204(2)(b) of the National Law. While the purpose of the obligation under s 204(2)(b) is not stated it can be implied that the purpose is to inform the practitioner of the reasons for the decision, to identify any errors which may form the basis for an appeal and to explain the path of reasoning by which the Tribunal arrived at the decision.
The Reasons do not articulate the basis upon which the Tribunal found professional misconduct rather than unprofessional conduct with respect to the grounds. However, the Tribunal did refer to both definitions and it made detailed findings as to the conduct of Dr Marin. In its Reasons, the Tribunal did analyse the evidence and the submissions of both parties under the heading “Analysis Consideration and Orders"[80] and set out a “Summary of Conclusions/ Findings”[81].
[80] Paras 466-520.
[81] Paras 521-531.
In my opinion, the Tribunal has set out the path by which it arrived at the finding of professional misconduct. As I have mentioned it is the ultimate finding, not the classification of the conduct alleged in particular grounds which is significant. I accept the submission of the Board that the reasons were adequate.[82]
[82] Respondent’s Further Written Submissions para 4,1.
Briginshaw
The Tribunal acknowledged that the standard of proof was subject to the requirements of Briginshaw v Briginshaw & Anor.[83] It referred to the relevant passage in the reasons of the High Court.[84] The Tribunal acknowledged the seriousness of the allegations made against Dr Marin[85] and when making its findings the Tribunal found that each of the grounds had been proved “to the requisite degree.” At the conclusion of its reasons, the Tribunal said:
Having found all grounds of complaint proved to the requisite degree it remains for the Tribunal to consider what action is to be taken pursuant to the provisions of section 196 (2), (3) and (4) of the National Law.[86]
The Reasons on Penalty commence with the statement:
1. The Tribunal following a protracted hearing (23 hearing days) of the complaint against the respondent found that all grounds of the complaint were proved to the requisite degree.
[83] (1938) 60 CLR 336.
[84] Reasons para 38.
[85] Reasons para 39.
[86] Reasons para 532.
I reject the suggestion that the Tribunal did not have regard to the requirements of Briginshaw.
Conclusion
Apart from the order permanently disqualifying Dr Marin from applying for registration, Dr Marin has not established that the Tribunal wrongly decided any legal issue that was determinative of the result. Nor has a denial of procedural fairness been shown to be determinative of the outcome.
I do not quarrel with any of the legal propositions asserted by the appellant but those propositions are not supported by the facts of this case.
The appellant relied upon the decision in Craig v South Australia.[87] I find that there was no jurisdictional error of the kind referred to by the High Court in Craig.
[87] (1995) 184 CLR 163.
Orders
The order in paragraph 4 of the order made 30 August 2017 that Dr Marin be permanently disqualified from reapplying for registration is rescinded.
Otherwise, the appeal is dismissed.