Medical Board of Australia v Adams
[2023] WASCA 41
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MEDICAL BOARD OF AUSTRALIA -v- ADAMS [2023] WASCA 41
CORAM: MITCHELL JA
BEECH JA
HALL JA
HEARD: 22 FEBRUARY 2023
DELIVERED : 3 MARCH 2023
FILE NO/S: CACV 13 of 2022
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Appellant
AND
LINDSAY ADAMS
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: PRESIDENT PRITCHARD
MR J O'SULLIVAN, SENIOR MEMBER
DR E MARILLIER, SENIOR MEMBER
Citation: ADAMS and MEDICAL BOARD OF AUSTRALIA [2021] WASAT 165
File Number : VR 53 of 2021
Catchwords:
Professions and trades - Practice and procedure - Appeal against State Administrative Tribunal decision to refuse to permit Medical Board of Australia to cross‑examine medical practitioner - Where, after receiving notifications of sexual misconduct, Medical Board of Australia took immediate action against medical practitioner by suspending his registration - Where, at review hearing of that decision, the issue was the appropriate form of immediate action - Where State Administrative Tribunal refused to permit Medical Board of Australia to cross‑examine medical practitioner on his affidavit evidence - Whether State Administrative Tribunal erred in law by refusing to permit cross‑examination - Whether s 32(6)(c)(ii) of State Administrative Tribunal Act 2004 (WA) confers a right of cross‑examination - Whether procedural fairness required State Administrative Tribunal to permit cross‑examination
Legislation:
State Administrative Tribunal Act 2004 (WA), s 32(6)(c)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | M D Cuerden SC |
| Respondent | : | T E Pontre |
Solicitors:
| Appellant | : | Minter Ellison |
| Respondent | : | Panetta McGrath Lawyers |
Case(s) referred to in decision(s):
Adams and Medical Board of Australia [2021] WASAT 165
Bernadt v Medical Board of Australia [2013] WASCA 259
Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222
Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39
Commissioner for Children and Young People v FZ [2011] NSWCA 111
Defendi v Szigligeti [2019] WASCA 115
Erujin Pty Ltd v Jacob [2018] WASCA 212; (2018) 53 WAR 452
Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
Helmy v Medical Board of Australia [2016] ACAT 97
Kioa v West (1985) 159 CLR 550
Kipoi Holdings Mauritius Ltd v Kirman (No 3) [2022] WASCA 78
Medical Board of Australia v Sami [2022] VSC 90; (2022) 66 VR 513
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296
NMFM Property Pty Ltd v Citibank Ltd (No 8) [1999] FCA 266; (1999) 161 ALR 581
O'Rourke v Miller (1985) 156 CLR 342
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Ramsay v Australian Postal Corp [2005] FCA 640; (2005) 147 FCR 39
Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307
Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
JUDGMENT OF THE COURT:
Introduction
The appellant, the Medical Board of Australia (the Board), appeals against a decision of the State Administrative Tribunal (the Tribunal) concerning the respondent, Dr Lindsay Adams (Dr Adams).
Dr Adams is a consultant paediatrician who worked at the Rockingham General Hospital (the Hospital).
On 15 June 2021, the Board exercised its power to take immediate action under the relevant legislation to suspend Dr Adams' registration as a medical practitioner. The Board so acted on the basis that it believed that, because of allegations about Dr Adams' conduct, he posed a serious risk to persons and that it was necessary to take immediate action to protect public health or safety.
Dr Adams commenced proceedings in the Tribunal, seeking review of the Board's decision to suspend his registration. At the hearing, he accepted that immediate action was appropriate, but challenged the form of immediate action adopted by the Board, namely suspension. He submitted that acceptance of an undertaking, the terms of which he offered, would sufficiently protect public health and safety.
In support of his case before the Tribunal, Dr Adams relied on his affidavit sworn 3 December 2021 in which he denied the allegations forming the basis for his suspension and offered the undertaking.
At the hearing before the Tribunal, the Board sought leave to cross‑examine Dr Adams on his affidavit with a view to demonstrating Dr Adams' lack of candour, which, in turn, the Board submitted, would demonstrate that he could not be trusted to comply with his undertaking.
The Tribunal refused to permit the Board to cross‑examine Dr Adams. The Board's sole ground of appeal challenges that refusal.
After hearing submissions from the parties, the Tribunal found that the protection of the public would be achieved by accepting Dr Adams' undertaking to the Board.[1]
[1] Adams and Medical Board of Australia [2021] WASAT 165 (primary reasons).
The Board now seeks leave to appeal against the Tribunal's decision that the Dr Adams' undertaking should be accepted and the suspension of his registration set aside. As already noted, the sole ground of appeal alleges that the Tribunal's refusal to permit cross‑examination was an error of law because it was inconsistent with s 32(6)(c)(ii) of the State Administrative Tribunal Act 2004 (WA) and because it was a denial of procedural fairness.
For the reasons that follow, we would refuse leave to appeal. In short, neither the merits of the appeal nor considerations of broader questions of the interests of justice - having regard to: the nature of the immediate action proceedings; the procedural nature of the sole ground of appeal; the subsequent institution of substantive proceedings against Dr Adams; the relationship between, and relative progress of, those proceedings; and the limited prospect of a different decision as to immediate action if the appeal were successful - justify the grant of leave to appeal.
It is convenient to begin by setting out the legislative framework.
Legislative provisions
The Health Practitioner Regulation National Law (National Law) takes effect as a law of Western Australia by force of s 4 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA). Section 6 of that Act declares the Tribunal to be the responsible tribunal for Western Australia for the purposes of the National Law.
Section 3 of the National Law provides, relevantly for present purposes, that the object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners. By s 3(2)(a) of the National Law, the objectives of that scheme are, relevantly for present purposes, to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered under it.
Among the guiding principles of the national registration and accreditation scheme are that restrictions on the practice of a health professional are to be imposed under the scheme only if those restrictions are necessary to ensure health services are provided safely and consistent with best practice principles.
By s 156 of the National Law, the Board is empowered to take immediate action in relation to a registered health practitioner if the Board reasonably believes that, because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons and it reasonably believes that it is necessary to take immediate action to protect public health or safety.
Section 155 defines immediate action to mean:
(a)the suspension, or imposition of a condition on, the health practitioner's or student's registration; or
(b)accepting an undertaking from the health practitioner or student; or
(c)accepting the surrender of the health practitioner's or student's registration; or
(d)if immediate action has previously been taken suspending a health practitioner's or student's registration - the revocation of the suspension and the imposition of a condition on the registration; or
(e)if immediate action has previously been taken imposing a condition on a health practitioner's or student's registration - the suspension of the registration instead of the condition.
Immediately after deciding to take immediate action in relation to a registered health practitioner, the Board must:[2]
(a)give written notice of the Board's decision to the health practitioner or student; and
(b)take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner or student or requiring the practitioner or student to undergo a health or performance assessment.
[2] National Law s 158.
By s 159(2), the decision continues to have effect until the earlier of the following occurs:
(a)the decision is set aside on appeal;
(b)for the suspension of, or imposition of conditions on, the registered health practitioner's registration, the suspension is revoked, or the conditions are removed, by the Board; or
(c)for an undertaking, the Board and the registered health practitioner agree to end the undertaking.
By s 199 of the National Law, a decision by the Board to suspend a person's registration may be appealed to the appropriate responsible tribunal which, as already observed, in Western Australia is the Tribunal.
The function of the Tribunal is to produce the correct and preferable decision: State Administrative Tribunal Act 2004 (WA) (the SAT Act), s 27(2). Section 32 of the SAT Act provides, relevantly, that:
(1)The Tribunal is bound by the rules of natural justice except to the extent that [the SAT Act] or [the National Law] authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to the Tribunal's proceedings and the Tribunal -
(a)is not bound by the rules of evidence or any practices or procedures applicable to courts of record …; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
…
(4)The Tribunal may inform itself on any matter as it sees fit.
…
(6)The Tribunal is to take measures that are reasonably practicable -
…
(c)to ensure that the parties have the opportunity in the proceeding -
(i)to call or give evidence; and
(ii)to examine, cross‑examine or re‑examine witnesses; and
(iii)to be heard or otherwise have their submissions considered.
(7)The Tribunal -
…
(b)may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument; and
(c)may limit the time available for presenting the respective cases of parties before it at a hearing to an extent that it considers would not impede the fair and adequate presentation of the cases[.]
Background facts
The Board received two notifications of allegations that Dr Adams had engaged in misconduct of a sexual nature with the mothers of two of his patients. The Board received the notifications from mandatory reporting by medical practitioners for each of the mothers. Each practitioner reported information that was disclosed to them by the respective mother.
The first notification was made on 18 June 2020 and concerned Dr Adams' alleged conduct towards a person we will refer to as Parent Z. The substance is set out in a confidential annexure to these reasons.
The second notification, made on 6 October 2020, concerned Dr Adams' conduct towards a person we will refer to as Parent Y, whose daughter Dr Adams was treating. The substance is set out in a confidential annexure to these reasons.
On 15 June 2021, having given notice of the proposed immediate action to Dr Adams and having received written submissions from him, the Board took immediate action to suspend Dr Adams' registration. The notice of the decision to take immediate action stipulated that the suspension would continue to have effect until it was revoked by the Board.
By application dated 12 July 2021, Dr Adams applied to the Tribunal for a review of the Board's decision to suspend his registration.
Dr Adams' affidavit
Dr Adams swore an affidavit of 3 December 2021 in support of his application to the Tribunal. So far as is relevant, its contents were to the following effect.
In the introductory paragraphs of his affidavit, Dr Adams said that he strongly denied the allegations forming the basis for his suspension and said that the material before the Board was not sufficient to form the basis of a reasonable belief about any risk posed by his alleged conduct such that suspension of his registration was necessary.[3]
[3] Affidavit of Dr Adams [4].
The affidavit then dealt in more detail with his position in relation to the conduct concerning each of Parent Z and Parent Y. As to Parent Z, Dr Adams' affidavit was to the following effect:
(1)He engaged in a consultation with Parent Z's daughter on the date of the alleged incident at which Parent Z was in attendance. After that consultation, he had no 'further contact with Parent Z or her daughter'.[4]
(2)Based on call records showing five telephone calls between Dr Adams and his wife between 8.10 pm and 9.49 pm on the date of the alleged incident, Dr Adams set out his belief as to what 'would have' occurred on that date. In essence, he said as follows. In the first call at 8.10 pm, his wife would have asked him when he was coming home, and he would have said he would call when he was in the car. In the next call, his wife would have told him that there was no dinner for him so he would need to buy some on the way home. He then believes he would have checked for his wallet and realised he did not have his wallet and would have returned to the Hospital to obtain it, after which he spoke to his wife for 38 minutes while driving home. On the way home, he would have bought Red Rooster, as is supported by his bank records.
[4] Affidavit of Dr Adams [5].
As to Parent Y, Dr Adams' affidavit was to the following effect:
(1)He had been a paediatrician for Parent Y's daughter since her three days in hospital in 2019 and has had extensive contact with her family.
(2)At a consultation with Parent Y and her daughter on a date in 2020, Parent Y discussed her concerns regarding her son. Later that week, having completed some documents given to her by Dr Adams, Parent Y said that she wanted to meet with him for an urgent discussion. She requested that no notes be recorded because of confidentiality concerns and requested that they discuss the matter face‑to‑face.
(3)Dr Adams agreed to have a discussion the following day, which was a Saturday.
(4)Dr Adams agreed to meet Parent Y in a non‑clinical setting for reasons including that he did not consider it appropriate to meet at the Hospital when there would be no one else around, the Hospital discouraged face‑to‑face consultations due to COVID‑19, and meeting patients outside of consultation rooms at the Hospital was not unusual within the range of his practice.
(5)Dr Adams and Parent Y met at the location of the alleged incident, where there were a number of people in the surrounding area. They discussed Parent Y's daughter's sexual identity, with Dr Adams giving Parent Y advice as to how to deal with her daughter's situation. In the course of the discussion, he did not say or do anything inappropriate.
(6)Parent Y did not want him to record the matters they discussed, to which Dr Adams agreed. In hindsight, he recognised that he should have maintained contemporaneous clinical records of the discussion.
(7)On 25 March 2020, Dr Adams made a telephone call to Parent Y from his mobile telephone. Swipe card data from the Hospital shows that Dr Adams was at the Hospital until 7.04 pm that evening, the call having been made at 6.09 pm.
(8)In accordance with standard practice, administrative staff logged out Parent Y's daughter's clinical record on 16 November 2020, in Dr Adams' name, in preparation for his consultation with her on 18 November 2020. It is a coincidence that that clinical record was accessed on the day the Board contacted Dr Adams to inform him of the investigation.
In his affidavit, Dr Adams proposed an alternative form of immediate action. He said that he was willing to be subject to an undertaking, the terms of which were attached to his affidavit and summarised below. His affidavit also made it clear that he had no objection to alternative conditions proposed by the Tribunal, so long as they permitted him to reasonably work in a way that did not compromise patient care.
Dr Adams' affidavit gave substantial evidence as to the financial and other impacts of the suspension on him to date, and of the consequences to him if the suspension were maintained. He concluded the affidavit with a request that the undertaking be accepted pending the completion of the investigation.
Dr Adams' undertaking
In summary, Dr Adams' proposed undertaking was to the following effect:
(1)While working as a medical practitioner, his only telephone contact with any patient or their family member would be by use of his current mobile telephone.
(2)Any written correspondence with a patient or their family member would only be sent by letter or from his work email address.
(3)Any consultation or meeting outside of the Hospital with any patient or their family member would only occur on notice to, and on receipt of written approval from, the Australian Health Practitioner Regulation Agency (AHPRA).
(4)There would be no communication with any family member of Patient Z or Patient Y.
(5) AHPRA would be at liberty to obtain reports from a senior person at Dr Adams' place of employment to monitor his compliance with the undertaking.
(6)Dr Adams would submit to monthly audits by AHPRA to review his compliance with the undertaking. Dr Adams set out options as to how the auditor would be chosen.
(7)Dr Adams would be responsible for all costs associated with compliance with the undertaking.
The hearing before the Tribunal
The Board's application for leave to cross-examine and supporting submissions
Counsel for the Board indicated, at the outset of the hearing, an intention to seek leave to cross‑examine Dr Adams.
The Board's counsel said that the cross-examination would be directed to the proposition that there were statements in Dr Adams' 'schedule 5 interview', an interview with an investigator acting under sch 5 of the National Law, which were inconsistent with statements that Dr Adams made in his affidavit. Counsel said that statements in the schedule 5 interview provided the basis for cross-examining to establish the incorrectness of some aspects of the affidavit, in particular Dr Adams' explanation as to his interaction with Parent Z and his movements on the day of his consultation with Parent Z's daughter.[5]
[5] ts 9.
The Board's counsel said that the cross-examination would be partly about whether Dr Adams left the building at certain times and what his mobile phone records indicated, and partly about Dr Adams' explanation about the circumstances in which he met Parent Y at the location of the alleged misconduct concerning Parent Y.[6] Counsel for the Board said that he had conferred with counsel for Dr Adams about the cross-examination and that it would not take more than an hour and a half.[7]
[6] ts 10.
[7] ts 10 - 11.
The President expressed concern about the implications, fairness, and necessity of cross-examining Dr Adams about the very material which would be the subject of the potential disciplinary proceeding.[8]
[8] ts 10.
The President questioned the need to consider the evidence about Dr Adams' purported explanations in his affidavit, given that the Board's case depended on whether the Board had a reasonable basis for thinking that immediate action needed to be taken, which was accepted by Dr Adams, and whether suspension was the correct answer to that.[9]
[9] ts 11.
The Board's counsel submitted that there were some fundamental issues with Dr Adams' explanations,[10] observing that the undertaking was 'effectively as good as Dr Adams' willingness to observe its terms in good faith'.[11]
[10] ts 11.
[11] ts 11 - 12.
In submissions, counsel for the Board explained that the object of the proposed cross‑examination was to establish a lack of candour in Dr Adams' affidavit, which in turn went to whether he could be trusted to comply with his undertaking.[12]
[12] ts 53, 63.
The conclusion of a lack of candour was said to arise from the following matters identified by counsel for the Board:
(1)In his affidavit, Dr Adams said that he did not have any further contact with Parent Z after the date of his consultation with Parent Z's daughter, when in fact there had been at least one telephone call between them after that date.
(2)In his affidavit, Dr Adams said that five calls were made between him and his wife on the date of his consultation with Parent Z's daughter, implying that only those calls were made. In fact, however, he had made a further call to his wife at 6.31 pm on that day which had not been mentioned in the affidavit and had been redacted from the annexed call records. This was initially said by counsel for the Board to be an intentional omission designed to remove a call placing Dr Adams outside the Hospital, but ultimately counsel accepted that there was no expert evidence to support a conclusion that the telephone tower in question demonstrated that Dr Adams was not inside the Hospital.
(3)A note made by Dr Adams regarding a consultation involving Parent Z's daughter was out of place in the medical notes and inconsistent with evidence that there had been no contact with Parent Z after the date of the consultation. Counsel for the Board said that the note was a deliberate attempt to create an impression of continuing consultations.
(4)Dr Adams was recorded as having requested Parent Z's daughter's file on 21 July 2020, six days after Parent Z said she confronted Dr Adams about the allegations and at a time when he had no legitimate reason to have the file.
(5)The Board asserted that there were inconsistencies as between what was said in the affidavit regarding the complaint concerning Parent Y and Dr Adams' transcript of interview with AHPRA.
After the lunch adjournment, counsel for the Board foreshadowed that Dr Adams' proposed cross‑examination would probably take about half an hour.
Counsel for the Board submitted that the difficulty in articulating the credit issues arising from the affidavit was that the Board did not 'necessarily have the evidence that [it] would otherwise have sought to elicit'. Counsel submitted:[13]
So for example, your Honour, in the context of the swipe card data entry, your Honour said, 'Well, we don't know anything about how you get in and out of the hospital and so forth'. Well, those are exactly the sort of questions I would want to be able to put to Dr Adams in cross‑examination. So I have mentioned two of the points at paragraphs 5 and 7 concerning [Parent Z's] affidavit. There's an issue about [Parent Y's] affidavit. Sorry, the affidavit concerning Ms - the explanations and [Parent Z]. In respect to the practitioner's explanation on affidavit concerning [Parent Y], I would really need to deal with that in cross-examination before launching into that any further.
[13] ts 58.
The President expressed concern about Dr Adams being cross‑examined on matters which might be relevant to proof of the substantive allegations against him. In response, the Board's counsel said that that was not the purpose of the cross‑examination. Rather, the purpose of the cross‑examination was to test the evidence that Dr Adams had relied on in the immediate action proceedings.[14]
The Tribunal's reasons for refusing leave to cross-examine
[14] ts 62 - 63.
After a short adjournment, the Tribunal refused the application for leave to cross‑examine, giving three reasons.
The first reason was that the Tribunal was not satisfied that cross‑examination of Dr Adams would assist the Tribunal to assess the prospects of his compliance with the proposed undertaking. Rather, the Tribunal's preliminary view was that that assessment would be most assisted by considering the implications for a practitioner of a breach, particularly in Dr Adams' circumstances, and having regard to the likely degree of scrutiny which would follow him.
Secondly, the Tribunal was not satisfied that it was appropriate to have cross‑examination tending into questions establishing the allegations which might ultimately be brought against Dr Adams in any substantive disciplinary proceeding. The Tribunal considered that there was a real risk of unfairness to Dr Adams in being cross‑examined as to those matters when he had not had the opportunity to hear what the complainants themselves might say in evidence.
Thirdly, the Tribunal was not persuaded that the explanations Dr Adams gave in his affidavit for whether the allegations could possibly be substantiated materially assisted the Tribunal in determining what it saw as the central question, namely whether the allegations warranted suspension, an undertaking, or conditions to be imposed for the protection of the public.[15]
[15] ts 64 - 65.
The Tribunal's reasons
The Tribunal was satisfied, in line with Dr Adams' concession, that the evidence was sufficient to found a reasonable belief that Dr Adams posed a serious risk to persons because of his alleged conduct and that it was necessary to take immediate action to protect the safety of the public. In so finding, the Tribunal referred to the speculative nature of Dr Adams' evidence as to whether it was possible for him to have been at the location of the misconduct alleged in respect of Parent Z. The Tribunal observed that it did not find that evidence helpful, which was one of the reasons why the Tribunal did not permit counsel to cross‑examine Dr Adams in respect of it.[16]
[16] Primary reasons [38] - [39].
The Tribunal considered that accepting Dr Adams' undertaking would protect the safety of the public, essentially for three reasons. First, there was no evidence to support the conclusion that there was any real prospect that Dr Adams would act in breach of the undertaking, having regard to a number of matters. There was no suggestion that Dr Adams engaged in any other inappropriate conduct between September 2020 and June 2021 when his registration was suspended. Nor was there any allegation of inappropriate behaviour concerning Parent Z and Parent Y in the other interactions he had had with them. There was no suggestion that Dr Adams suffered from behavioural issues that diminished his ability to regulate his own behaviour, nor that he had any history of prior disciplinary action suggesting that there might be a real risk that he would breach the undertaking.
Secondly, the Tribunal considered that the very prospect of disciplinary action, and the scrutiny to which Dr Adams would likely be subjected by AHPRA and by any employer pending any such action, would operate as a strong disincentive for Dr Adams to breach the undertaking.
Thirdly, the implications for Dr Adams' future practice of medicine, and his financial position, would be most severely adversely affected in the event of any breach of the undertaking and by the action which the Board would undoubtedly pursue in response to any such breach.
The Tribunal then referred to the Board's counsel's submission that Dr Adams could not be trusted to comply with the undertaking because his evidence lacked credibility and candour. The Tribunal was not persuaded that Dr Adams' evidence lacked candour. As to the failure of Dr Adams to refer comprehensively to his telephone records, the Tribunal considered that an equally open inference was that the failure was an oversight. The Tribunal gave the following further reasons:[17]
Counsel for the respondent also sought to rely on an entry in the patient notes for [Parent Z's] daughter, dated 6 April 2020, which he alleged cast doubt on Dr Adams' claim that he did not see Parent Z after [the relevant consultation date]. But both Dr Adams and Parent Z's version of events were to the effect that Dr Adams did not see Parent Z or her daughter in person, after [the relevant consultation date]. Counsel for Dr Adams indicated that Dr Adams accepted that there had been a telephone consultation in April 2020. In contrast, counsel for the respondent submitted that the patient record dated 6 April 2020 'appears to have been designed to create an impression that the Practitioner had continued to see [them] well after [the relevant consultation date]' and that 'the Practitioner was seeking to construct a false record of treatment taking place after [the relevant consultation date] which might be said to be inconsistent with sexual misconduct having taken place on that date'. We do not consider that that is an inference able to be drawn on the information presently available.
Counsel for the respondent sought to make something of the fact that there was some evidence to suggest that on 21 July 2020, Dr Adams had access to the patient records of [Parent Z's] daughter. It appears that a consultation was due to have taken place on 22 July 2020. It was suggested by Dr Adams' counsel that a phone consultation may have taken place on 8 July 2020 instead, and that that was the explanation for why the patient notes were in Dr Adams' possession at around that time. In the absence of any, or any adequate, evidence as to the Hospital's practices with respect to patient records, the process by which they are obtained by a practitioner for the purposes of a consultation, any Hospital practice as to how long patient records are retained by a practitioner, and how they are returned to storage, it is not possible to draw any inference about the fact that Dr Adams allegedly had the records in his possession on 22 July 2020, much less any inference adverse to him as to why he had those records.
[17] Primary reasons [53] - [54].
The Tribunal considered the terms of the undertaking to be adequate to protect health and safety, noting that the Board's counsel did not suggest to the contrary apart from questions of compliance with the undertaking.
Ground of appeal
The Board's single ground of appeal is in the following terms:
(1)The Tribunal erred in law by refusing to permit counsel for [the Board] to cross-examine [Dr Adams] on [his] affidavit sworn 3 December 2021, in that:
(a)such refusal was contrary to s 32(6)(c)(ii) of the [SAT Act];
(b)further and alternatively, in all the circumstances such refusal meant the Tribunal failed to afford the Board procedural fairness, contrary to s 32(1) of the SAT Act and at general law.
The Board says that the appeal raises two questions of law within the meaning of s 105(2) of the SAT Act:
(1)First, where one party relies upon affidavit evidence before the Tribunal and the Tribunal receives that evidence, and the other party makes clear to the Tribunal that it wishes to cross-examine the deponent on his or her affidavit, and there being no issue of any inability on the part of the deponent to attend for cross-examination, is the Tribunal required by s 32(6)(c)(ii) of the SAT Act to permit that other party to cross-examine the deponent? (Ground 1(a))
(2)Secondly, in circumstances in which the Board, through its counsel, sought leave to cross-examine Dr Adams on his affidavit and had made clear to the Tribunal that the purpose of the proposed cross-examination was to challenge the veracity of Dr Adams' evidence and his candour, did the Tribunal fail to afford the Board procedural fairness as required by s 32(1) of the SAT Act and at general law by refusing to permit counsel for the Board to cross-examine Dr Adams in circumstances in which the Tribunal then found in favour of Dr Adams for reasons which included that it was not persuaded that Dr Adams' evidence lacked candour? (Ground 1(b))
Submissions
The Board's submissions
The Board's principal submissions may be summarised as follows:
(1)Without the Board having had the opportunity of cross‑examination, in a course of exchanges with counsel, the President suggested innocent explanations for aspects of Dr Adams' evidence about which the Board had raised concerns. A number of these were ultimately reflected in the Tribunal's reasons.[18]
[18] Appellant's submissions [27] - [28].
(2)The Tribunal erred in requiring the Board to explain and persuade the Tribunal as to Dr Adams' lack of candour in advance of, and in order to be given the opportunity of, cross‑examination. This is illustrated by the President's observation that the Tribunal did not know how the swipe cards worked at the Hospital.[19] The Tribunal could not make any findings as to the veracity of Dr Adams' explanation on oath, or his candour, without first permitting the Board to cross‑examine him.[20]
[19] Appellant's submissions [29].
[20] Appellant's submissions [34].
(3)The Tribunal's obligation under s 32(6)(c)(ii) of the SAT Act to ensure that the parties have the opportunity to cross‑examine witnesses is interrelated with its obligation to afford procedural fairness to the parties. A failure to afford a party the ability to cross‑examine may, in the circumstances of a particular case, amount to a denial of procedural fairness. Section 32(6)(c)(ii) 'puts beyond doubt' that the Tribunal must take reasonably practicable measures to ensure that the parties have the opportunity to cross‑examine witnesses.[21]
[21] Appellant's submissions [37] - [39].
(4)Section 32(6)(c)(ii) required the Tribunal to permit the Board to cross‑examine Dr Adams on his affidavit. While the Tribunal was permitted to control the cross‑examination to ensure that it was not prolix, was confined to matters in issue and was not unfair, it was not permitted to refuse to permit cross‑examination at all.[22]
[22] Appellant's submissions [42] - [43].
(5)Further, the refusal to permit the Board to cross‑examine amounted to a failure to afford procedural fairness, having regard to the following:[23]
[23] Appellant's submissions [45] - [50].
(a)Dr Adams formally relied on his affidavit knowing that the Board wished to cross‑examine him on it;
(b)Dr Adams' veracity or candour in his evidence was a relevant consideration to whether the Tribunal should accept the undertaking; and
(c)during the hearing, the Tribunal expressed apparently concluded views to the effect that the affidavit did not disclose a lack of candour because there were other explanations for the issues raised by the Board. Such conclusions should not have been reached without the Board first having had the opportunity of cross‑examination.
(6)For the following reasons, none of the three reasons given by the Tribunal for refusing to permit cross‑examination (summarised at [45] - [47], above) justified that decision:[24]
(a)As to the first reason given by the Tribunal, the Tribunal did not know what would be revealed during cross‑examination and therefore could not say that it was not satisfied that cross‑examination would be of assistance. To so reason was circular.
(b)As to the second reason, the object of the cross‑examination was to challenge the explanation given by Dr Adams in his affidavit - in order to establish his lack of candour - not to seek to prove the substantive allegations against him. In any event, the Tribunal had power to control the cross‑examination to avoid unfairness.
(c)As to the third reason, the Tribunal made it clear that it did not wish to cross‑examine Dr Adams to prove the allegations, but rather to challenge the candour of his affidavit.
(7)In its final reasons, in addressing the Board's submissions, the Tribunal reached conclusions about Dr Adams' candour without having permitted the Board to cross‑examine him. That is illustrated by the manner in which the Tribunal dealt with the specific concerns raised by the Board, as outlined in [52] above.[25]
(8)The Tribunal gave no reasons as to why it considered the Board's proposed cross‑examination concerning the Parent Y notification to be irrelevant.[26]
[24] Appellant's submissions [51] - [56].
[25] Appellant's submissions [61] - [63].
[26] Appellant's submissions [64].
The Board submits that leave to appeal should be granted because there is a lack of judicial consideration of s 32(6) of the SAT Act; the appeal raises important points of principle as to the Tribunal's procedures; it is important for the Board to know whether practitioners who make affidavits in applications for review of decisions to take immediate action can do so without being cross-examined; the decision has implications for public health and safety; the ground of appeal has sufficient merit; had the Board been afforded procedural fairness, the outcome of the Tribunal's decision might have been different; and the Tribunal's order was final.[27]
Dr Adams' submissions
[27] Appellant's submissions [70]; appeal ts 27.
Dr Adams' principal submissions were as follows:
(1)Whether it is necessary to permit cross‑examination depends upon the circumstances of the case, including the nature of the proceedings and its subject matter. In the particular context of appeals against decisions to take immediate action under s 156 of the National Law, it has been held that generally it is appropriate that there not be cross‑examination. That is because the nature of the Tribunal's task does not entail a detailed inquiry as to what happened in relation to the allegation; the question is about risk. Moreover, the substantive allegations may fall to be determined by a future tribunal.
(2)The Tribunal had the benefit of detailed submissions from the Board about the objects of the proposed cross‑examination. Further, counsel for Dr Adams foreshadowed the evidence that Dr Adams would give in response to the Board's identified concerns.
(3)The Tribunal was right to find that the proposed cross‑examination had limited forensic utility. Dr Adams' counsel foreshadowed Dr Adams' explanations for any discrepancies in his affidavit and, in any event, it was objectively more likely that the discrepancies were the result of oversight, rather than a deliberate attempt to mislead. In any event, any admission of intentional untruth would have been of limited significance because the underlying evidence was itself of so little weight. Further and more significantly, there were, as the Tribunal found, many countervailing reasons why Dr Adams was very unlikely to breach the undertaking.
(4)The Tribunal was also right to identify the real risk of significant prejudice to Dr Adams from permitting cross‑examination. In that regard, it would have been unfair for there to be cross‑examination of Dr Adams but not the complainants. Moreover, aspects of Parent Y's allegations were known by the Board but not disclosed to Dr Adams. The unfairness of cross‑examination could not have been controlled because there is no hard and fast distinction between the establishment of a lack of candour in Dr Adams' response to the allegations and cross‑examination directed to establishing the substantive allegations.
(5)Even if the Tribunal's refusal to permit cross‑examination was erroneous, any such error has not been shown to be material. That is because the cross‑examination was very unlikely to generate an adverse inference of any real significance, and because there were various other compelling reasons supporting the acceptance of the undertaking.
Why leave to appeal should be refused
As can be seen, s 105(1) of the SAT Act provides that a party to a proceeding may appeal from a decision of the Tribunal in the proceeding if, and only if, the court to which the appeal lies gives leave to appeal.
While the question of leave to appeal was not at the forefront of the parties’ submissions, in a fundamental sense it is the first question - without leave, there is no right to appeal.
The principles governing the decision whether to grant leave are well known. Leave to appeal from a decision of the Tribunal will be granted if, in all the circumstances, a grant of leave is in the interests of justice.[28] Although the circumstances in which it would be in the interests of justice to grant leave cannot be constrained by a universal statement, it would usually be relevant for the court to consider whether an applicant for leave has shown that there is sufficient doubt with respect to the decision under appeal to justify the grant of leave and that allowing the error to go uncorrected would give rise to substantial injustice. The latter conclusion will more readily follow if the substantive effect of a decision under appeal was final.[29]
[28] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16].
[29] Paridis v Settlement Agents Supervisory Board [17] ‑ [18].
By reason of the combined force of the following considerations, we are not satisfied that it is in the interests of justice to grant leave to appeal.
First, while the decision appealed against was final in one sense, in that it disposed of the proceedings before the Tribunal, as a matter of substance the decision was not final. The subject matter of the decision was the nature of the immediate action that should be taken pending the commencement and conclusion of substantive proceedings by the Board against Dr Adams. The latter proceedings, which the Board commenced in April 2022, will determine the substance of the Board's concerns as to Dr Adams' conduct.
Secondly, the substance of the Board's interests in the proceedings lies in the protection of public health and safety. Those interests are impinged to the extent that practice by Dr Adams while subject to his undertaking gives rise to an unacceptable risk to public health and safety. The Board's ground of appeal is not directed to that topic, in that it does not directly complain of error in the Tribunal's decision to accept Dr Adams' undertaking. Rather, the ground of appeal concerns the procedural question of whether the Tribunal erred in refusing to grant leave to the Board to cross‑examine Dr Adams. It is only if the Tribunal makes a different decision as to the appropriate immediate action at a remitted hearing following success on the appeal that the Board's substantive interests in the proceedings will have been advanced.
Thirdly, consideration of the rate of progress of both the immediate action matter and the substantive matter, since the Board received the notifications, counts against the grant of leave.
The chronology of events is as follows:
1.The Board received the first notification in June 2020 and the second in October 2020.
2.In June 2021, the Board took immediate action by making the suspension order.
3.As at December 2021, when the Tribunal heard the immediate action proceedings, the Board had not made a decision as to whether it would commence substantive proceedings in respect of the matters the subject of the notifications.
4.In January 2022, the Board resolved to commence substantive proceedings.
5.In April 2022, the Board commenced the substantive proceedings.
6.As at the hearing of this appeal, the substantive proceedings had not been listed for hearing.
7.In November 2022, directions were made in the substantive proceedings for the exchange of each party's book of documents. The Board is yet to comply with those directions, although the court was informed during the appeal hearing that it would do so in the very near future.
8.A directions hearing is listed in the substantive proceedings for 7 March 2023.
If leave were granted and the appeal upheld, the immediate action matter would be remitted to the Tribunal for rehearing. Some further time would have elapsed while this court prepared its reasons on the appeal. Thereafter, the Tribunal would be asked to relist the immediate action matter for hearing. In the meantime, the substantive proceedings would have progressed. While it is not possible to give precise estimates of the likely hearing dates for the two matters, a hearing of the remitted immediate action proceeding might, at best, occur in about the middle of this year. It appears not unlikely that the substantive proceeding will be heard in the later part of this year. Counsel for the Board did not suggest otherwise.
In those circumstances, any different order of the Tribunal upon the remitted hearing would have an effect only for the period of months between the two hearings, in circumstances where the Tribunal's orders accepting the undertaking will have been in effect from December 2021 until orders of this court upholding the appeal were made. The likely quite limited duration of any different immediate action orders that would arise from the success of this appeal diminishes the case for the grant of leave to appeal.
Moreover, a successful appeal and order for retrial would reinstate the Board’s suspension pending the rehearing of the remitted proceedings. While, as the Board points out, the Tribunal has the power to stay the suspension pending the hearing in the Tribunal, the Board did not consent to such an order or undertake not to oppose it. Against the background of the above history, the reinstatement of the suspension and consequent need for Dr Adams to apply for a stay counts against the grant of leave to appeal.
Fourthly, success in the appeal will not require the Tribunal to make a different decision as to immediate action, and a different decision following a remitter cannot be said to be probable. As explained later in these reasons, even if cross-examination of Dr Adams were successful in satisfying the Tribunal of the lack of candour alleged by the Board, it would be well open to the Tribunal to find that other matters overwhelmingly render the prospect of Dr Adams breaching the undertaking to be insufficient to require suspension in order to protect the public.
In any event, it cannot be assumed that at a remitted hearing Dr Adams would rely upon his affidavit and we think it unlikely that he would do so. Given that the issue at the immediate action hearing was as to the form of immediate action - not whether any immediate action was warranted - the forensic benefit of reliance on the affidavit is far from apparent. Against that, in circumstances where, by hypothesis, this court had found that leave to cross-examine should have been granted, and where substantive proceedings are on foot, the obvious risks of prejudice to Dr Adams' substantive case would seem to overwhelm any forensic benefit in relying on the affidavit. Thus, we consider it unlikely that cross-examination would occur at any remitted immediate action hearing.
In the absence of cross-examination, and in circumstances where the undertaking put in place by the Tribunal in December 2021 would have been on foot for over 15 months, a different decision by the Tribunal seems to us to be unlikely.
Fifthly, while both the Tribunal and the parties may be expected to seek to progress both proceedings in parallel and expeditiously, remitter of the immediate action proceedings would give rise to a risk that those proceedings would become the immediate focus and slow down the progress of the substantive proceedings. That would not be in the interests of justice.
Sixthly, the course of the substantive proceedings tends to reinforce the Tribunal's concern as to the risk of unfairness to Dr Adams. For example, we were informed that the Board proposes to adduce expert evidence concerning the hospital swipe card system in the substantive proceedings. Senior counsel for the Board accepted that such evidence was connected - and we would say closely connected - with one of the topics of the proposed cross-examination.
Seventhly, for the reasons below, the merits of the proposed appeal do not justify the grant of leave.
For the above reasons, and the following further reasons, we reject the Board's submissions, summarised in [57] above, that there should be a grant of leave to appeal. The lack of judicial consideration of s 32(6) of the SAT Act does not assist the Board - the Board's construction of that provision is, as explained below, without merit. The appeal does not raise important points of principle as to the Tribunal's procedures. Rather, it turns upon whether, in the particular circumstances of the present case, procedural fairness required the grant of leave to cross‑examine. Contrary to the Board's submission, the Tribunal's decision does not have the consequence that, generally speaking, practitioners can make affidavits in applications for review of decisions to take immediate action without being cross‑examined. As noted below, this was not a case where the proposed cross‑examination was directed to undermining the weight to be attributed to evidence adverse to the proposed cross‑examiner.
We turn to the merits of the Board's proposed ground of appeal. It is convenient to begin with the Board's contention that s 32 of the SAT Act conferred on it a right to cross‑examine.
Ground 1(a): the proper construction of s 32(6)(c)(ii) of the SAT Act
The Board contends that, on its proper construction, s 32(6)(c)(ii) confers upon a party to proceedings in the Tribunal a right to cross‑examine the deponent of an affidavit that is relied on by an opposing party and received by the Tribunal, so long as the deponent is available to attend for cross‑examination.[30] On the Board's contention, the Tribunal has no discretion to refuse to permit cross‑examination if the deponent is available, and there is no requirement for a party to seek leave to cross‑examine.[31]
[30] Appeal ts 5 - 6.
[31] Appeal ts 9.
In our opinion, the Board's contention is without merit. As Dr Adams submits, s 32(6)(c)(ii) is, like s 32(6)(c) as a whole, an articulation of aspects of what the Tribunal's obligation to accord procedural fairness entails.
The Board's proposed construction finds no support in the text, context and purpose of s 32(6)(c) and produces incoherence in s 32 as a whole.
The text of the provision does not in its terms confer a right and its language is not apt to do so. Section 32(6) does not provide that the Tribunal must permit parties to examine, cross‑examine and re‑examine witnesses. It requires the Tribunal to take measures that are reasonably practicable toward the ends identified in each of pars (a), (b) and (c). The presently relevant end in sub par (ii) is to ensure that the parties have the opportunity to examine, cross‑examine and re‑examine witnesses. The choice of the word 'opportunity' is significant. It is the language of procedural fairness. The test of 'reasonably practicable' also echoes the concept of what is procedurally fair. Reading s 32(6)(c) as a whole, its purpose and effect is to articulate specific aspects of what procedural fairness to the parties entails.
Contrary to the Board's submission,[32] to so read s 32(6)(c)(ii) is not to render it redundant. The Board's submission that, on the construction of s 32(6)(c)(ii) described in [79] and [81], it adds nothing to s 32(1), overlooks the distinction between the existence of a requirement of procedural fairness and the content of that requirement. As Mason J said, in effect, in Kioa v West,[33] to say that a court or tribunal is obliged to afford procedural fairness is only the first step of analysis. The second step is to identify the content of the requirements of procedural fairness. It is the second step that is critical in most cases.[34] Identifying the requirements of procedural fairness requires analysis of the legislation, and any rules, under which the decision‑maker is acting.[35] Here, s 32(6)(c) provides some of the content of the procedural fairness requirement that is imposed, in general terms, by s 32(1). Understood in that manner, s 32(1) and s32(6)(c) are part of a coherent whole.
[32] Appeal ts 17.
[33] Kioa v West (1985) 159 CLR 550.
[34] Kioa v West (585); Defendi v Szigligeti [2019] WASCA 115 [46].
[35] Defendi v Szigligeti [48] and cases there referred to.
Thus, consideration of the text firmly supports the respondent's construction and provides little or no support for the construction advanced by the Board.
Further, the Board's construction of s 32(6)(c)(ii) would produce marked incoherence between that provision and s 32 as a whole. By s 32(2), the Tribunal is not bound by the rules of evidence and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. By s 32(4), the Tribunal may inform itself on any matter as it sees fit. Subject to prescription by or under the SAT Act or the enabling Act, it is for the Tribunal to determine its practice or procedure: s 32(5). The Tribunal has express powers of case management in s 32(7), evidently directed to enabling it to achieve efficient use of the Tribunal's resources. Those powers include the power to require evidence or argument to be in writing and to determine which matters it would hear oral evidence or argument about. It also includes the power to limit the time available for presenting the respective cases of parties, but only to an extent that would not impede the fair and adequate presentation of the party's case.
In that statutory context, the right to cross‑examine conferred by s 32(6)(c)(ii) as asserted by the Board - and the concomitant absence of any discretion on the part of a tribunal to refuse to permit it - would be most incongruous. The incoherence between s 32(6)(c)(ii) and s 32 as a whole produced by the Board's construction counts strongly against that construction.
Moreover, on the Board's construction, in deciding whether cross‑examination is permitted, the Tribunal would have markedly less flexibility than a court has. Even in a case in which final relief is sought, a court has a discretion as to whether to permit cross‑examination[36] - although, where one party seeks to rely on an affidavit as evidence relevant to the grant of final relief, ordinarily as a matter of procedural fairness the opposing party should be given the opportunity to cross‑examine the deponent in order to discredit or clarify that evidence.[37] Where, on the other hand, the affidavit is relied upon in the context of an interlocutory application, or otherwise than in support of a claim for final relief, the starting point is that a court would ordinarily not permit cross‑examination.[38] To construe s 32 as creating a right to cross-examine in all cases removes any flexibility from the Tribunal; a result that would hardly have been intended. In enacting s 32, the legislature evidently intended to make the Tribunal's procedures more flexible, not less flexible, than a court.
[36] See, for example, GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15; NMFM Property Pty Ltd v Citibank Ltd (No 8) [1999] FCA 266; (1999) 161 ALR 581 [16]; Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526 [99] ‑ [100].
[37] Kipoi Holdings Mauritius Ltd v Kirman (No 3) [2022] WASCA 78 [53].
[38] Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150 [29].
As senior counsel for the Board accepted,[39] it is an element of the Board's construction that the asserted right to cross‑examine arises in relation to interlocutory matters, as well as claims for final relief. Further, there is a corresponding right to call and examine witnesses.[40] Those features of the Board's construction reinforce the unlikelihood that the meaning sought to be attributed by the Board could objectively have been intended by the legislature.
[39] Appeal ts 9, 13.
[40] Appeal ts 7 - 8.
For these reasons, there is no merit in ground 1(a).
Ground 1(b): procedural fairness
Legal principles
The contents of the requirements of procedural fairness are not fixed.[41] What is required to accord procedural fairness is variable and depends upon the circumstances of the case, the nature of the inquiry, the legislation and rules under which the decision‑maker is acting, and the subject matter being dealt with.[42]
[41] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [26].
[42] National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 326; Erujin Pty Ltd v Jacob [2018] WASCA 212; (2018) 53 WAR 452 [159] ‑ [160].
That general principle applies to the question of whether procedural fairness requires that a person be given the right to cross‑examine witnesses.[43] Thus, there is no rule that procedural fairness requires that a party be permitted to cross-examine. Whether it does so depends on all the circumstances, including the matters mentioned in the preceding paragraph.
[43] O'Rourke v Miller (1985) 156 CLR 342, 353; Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 [74], [137].
The significance of the evidence to be tested by the proposed cross‑examination is often, if not usually, critical to whether procedural fairness requires that cross‑examination be permitted. Ordinarily at least, procedural fairness requires that a party be permitted to challenge by cross‑examination evidence that is adverse to it in important respects.[44] It is important to consider how close the evidence sought to be subjected to cross-examination is to the core of the issue(s) in the proceedings.[45]
[44] Ramsay v Australian Postal Corp [2005] FCA 640; (2005) 147 FCR 39 [27]; Commissioner for Children and Young People v FZ [2011] NSWCA 111 [25].
[45] Commissioner of Children v FZ [26].
Turning to the specific statutory context with which this appeal is concerned, two features of the notion of immediate action under s 156 of the National Law tend against the grant of leave to cross‑examine.
First, determining what, if any, immediate action is appropriate does not involve determining what had occurred in relation to the matter notified. Rather, the inquiry is directed to the future; the focus is upon the nature and extent of risks to persons and the steps to be taken to address such risks.[46] Ordinarily, it will be sufficient for the Board or Tribunal to know what the allegation is, what material supports it and whether the allegation is denied, without attempting to go into the merits of the allegation. In this respect, the position has some analogy with the task of a decision‑maker under the 'working with children' legislation; as to which legislation, see Chief Executive Officer, Department for Child Protection v Grindrod [No 2][47] and Chief Executive Officer, Department for Child Protection and Family Support v IGR.[48] Consistently with this, as Newnes JA observed in Bernadt v Medical Board of Australia,[49] pt 7 of the National Law provides for a relatively summary process and makes no provision for the practitioner to be given any real opportunity to test the factual basis of the Board's belief.
[46] Medical Board of Australia v Sami [2022] VSC 90; (2022) 66 VR 513 [174].
[47] Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39.
[48] Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222.
[49] Bernadt v Medical Board of Australia [2013] WASCA 259 [152].
Secondly, the question of what occurred in relation to the matter notified may well fall to be determined by a future tribunal in proceedings against the practitioner under div 12 of pt 8 of the National Law.[50] In those circumstances, any cross-examination of a practitioner in the context of a question of immediate action is liable to give rise to unfairness concerning the merits of the subsequent substantive proceedings.
[50] Helmy v Medical Board of Australia [2016] ACAT 97 [22].
As is apparent from [45] - [47] above, these considerations were central to the Tribunal's decision, in the present case, to refuse leave to cross‑examine.
Why procedural fairness did not require the Tribunal to permit cross‑examination
In our view, the limited likely utility of the proposed cross‑examination, combined with the evident prospect of real prejudice to Dr Adams, amply justified the Tribunal's decision to decline to permit cross‑examination.
It is important to recognise at the outset that the Tribunal indicated during the hearing that it proposed to give little or no weight to the aspects of Dr Adams' affidavit on which the Board sought leave to cross‑examine. The Tribunal indicated that the speculative and reconstructive nature of the affidavit, which was expressed in terms of what 'would have' happened, meant it carried little weight. Such an approach is, with respect, both conventional and readily understandable.
Consistently with what it had indicated in the course of the hearing, in its ultimate decision on the question of the appropriate immediate action, the Tribunal did not rely, at all, on Dr Adams' evidence concerning the merits of the substantive allegations against him. Rather, the Tribunal simply proceeded on the basis that, as was common ground, the evidence was sufficient to found the relevant belief; namely that Dr Adams posed a serious risk to persons because of his alleged conduct and that it was necessary to take immediate action to protect the safety of the public.[51]
[51] Primary reasons [37] ‑ [41].
Thus, the present case was far removed from a situation of the kind referred to in [91] above, where a party seeks to challenge evidence relied on by the other party to undermine the weight to be attributed to it. Rather, the Board sought to cross‑examine in order to advance its own case by demonstrating Dr Adams' lack of candour in swearing the affidavit, to support its submission that he could not be trusted to comply with his undertaking.[52]
[52] Appeal ts 32 - 34.
The logic of the Board's proposed cross‑examination required it to establish three steps:
(1)the existence of the discrepancy or material non‑disclosure in Dr Adams' affidavit;
(2)that Dr Adams included the relevant discrepancy, or omitted the relevant matter, deliberately, in order to mislead, rather than inadvertently; and
(3)that Dr Adams' deliberately misleading affidavit demonstrated that he could not be trusted to comply with his undertaking.
In our respectful opinion, it was well open to the Tribunal to come to the view, as it did, that the evidence proposed to be adduced through cross‑examination would be of, at most, modest probative value.
In the primary reasons, the Tribunal concluded that it was not satisfied that Dr Adams' evidence lacked candour. The Board criticises the Tribunal's reasoning in this regard, pointing out that this conclusion was drawn in circumstances where the Tribunal had refused to permit the Board to cross‑examine Dr Adams to explore the matters giving rise to its concern about lack of candour. In our view, the Tribunal was merely appropriately responding to the Board's submissions as to Dr Adams' candour by explaining why the Tribunal did not accept those submissions. While those submissions had been framed in an expectation of the grant of leave to cross‑examine, it remained incumbent upon the Tribunal to respond to those submissions. Importantly, the Tribunal did not find - and Dr Adams did not invite it to find - that Dr Adams' affidavit demonstrated his candour and that this should count in favour of acceptance of his undertaking.
In any event, in rejecting the Board's application for leave to cross‑examine, the Tribunal's reasons did not include any view that a finding of deliberate lack of candour was unlikely to arise following cross‑examination. Rather, the Tribunal observed that its decision as to the prospects of compliance with the undertaking would be 'more assisted' by other matters which it identified. The Tribunal also observed, in its third reason (see [47] above), that the veracity of Dr Adams' explanation in his affidavit would not materially assist it in determining the central question of whether suspension was warranted for the protection of the public. In other words, the Tribunal considered, in effect, that it would attribute little weight to the third step of the Board's proposed cross‑examination, as set out in [100] above.
It was well open to the Tribunal, at the time that it determined the application for leave to cross‑examine, to come to this conclusion. The proposed undertaking did not, in substance, rely for its efficacy on taking Dr Adams on trust. Rather, it included several mechanisms for oversight, including reports from Dr Adams' place of employment and monthly audits. Moreover, the parents of Dr Adams' patients could be contacted as an additional check as to his compliance. It could be anticipated that AHPRA would take steps to oversee the question of compliance. Further, as the Tribunal found in its primary reasons, the extremely adverse consequences for Dr Adams of any breach of the undertaking gave him a powerful incentive to comply with it.
To so reason was not, as the Board asserts, circular. Rather, in exercising its discretion as to the grant of leave to cross-examine, the Tribunal appropriately considered the likely significance of evidence to be adduced in cross-examination in the context of the issues in the proceedings and the evidence as a whole.
It was well open to consider that any doubt as to the prospects of Dr Adams' compliance with his undertaking that might arise from a finding of lack of candour would be overwhelmed by the considerations we have identified pointing the other way.
It was also well open to the Tribunal to find, as it did, that the risk of unfairness to Dr Adams arising from cross‑examination counted firmly against the grant of leave. The Board emphasised to the Tribunal, and emphasises in its submissions to this court, that the purpose of the proposed cross‑examination was not directed to testing the merits of the substantive allegations. As far as it goes, that may be accepted. But the question of the risk of unfairness is not to be tested by reference to the cross‑examiner's purpose - it is the likely effect of the cross‑examination that matters.
The questioning of Dr Adams as to his evidence in response to the allegations, or as to matters surrounding his response, was liable to have the effect of disadvantaging Dr Adams in his ultimate defence of the substantive proceedings. For example, through cross‑examination, Dr Adams may have been 'pinned down' to some specific responses to questions, thereby enabling the Board to conduct further investigations with a view to undermining those responses if given at the substantive hearing. Any different response at the substantive hearing could be challenged by reference to what Dr Adams had said under cross-examination at the immediate action hearing. These are just some of the examples of possible disadvantage to Dr Adams.
There was real potential for unfairness in exposing Dr Adams to cross‑examination as to matters liable to undermine aspects of his response, at a hearing of the substantive allegations, to those allegations. That unfairness was magnified by the circumstance that neither of the two parents the subject of the notification were exposed to cross‑examination at the immediate action hearing and neither had given their version of events on oath.
For these reasons, in our view, the Board has fallen well short of demonstrating that the Tribunal's refusal to permit cross‑examination amounted to a breach of the requirements of procedural fairness.
Conclusion
For the above reasons, we would refuse leave to appeal and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Associate to the Honourable Justice Beech
3 MARCH 2023
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