Medical Board of Western Australia v Bham

[2006] WASAT 190

MEDICAL BOARD OF WESTERN AUSTRALIA and BHAM [2006] WASAT 190

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 190
Act:	MEDICAL ACT 1894 (WA)
Case No:	VR:142/2005	Heard:	10 JANUARY 2006
Coram:	JUSTICE M L BARKER (PRESIDENT) MS J STANTON (SENIOR SESSIONAL MEMBER) DR G WARD (SENIOR SESSIONAL MEMBER) DR P WINTERTON (SENIOR SESSIONAL MEMBER)	Delivered:	11/07/06
No of pages:	31	Judgment Part:	1 of 1
Result:	In VR 142 of 2005 practitioner found guilty of infamous conduct In VR 143 of 2005 practitioner found not guilty on allegation of "unfit to practise" In VR 144 of 2005 practitioner found guilty of infamous conduct
Category:	A
PDF Version

Parties:	MEDICAL BOARD OF WESTERN AUSTRALIA AMEEN AHMED BHAM
Catchwords:	Vocational regulation Medical practitioner Whether medical practitioner "unfit to practise" by reason of convictions in New South Wales for offences under s 128A Health Insurance Act 1973 (Cth) Whether medical practitioner guilty of "infamous or improper conduct in a professional respect" Allegation that practitioner knowingly or recklessly failed to disclose convictions when registered in Western Australia Allegation that practitioner lied to fellow practitioner about purpose of a $25 000 loan and a $10 000 loan and failed to disclose to him that he was an undischarged bankrupt contrary to s 269(1)(a) Bankruptcy Act 1966 (Cth)
Legislation:	Bankruptcy Act 1966 (Cth), s 269, s 269(1)(a) Health Insurance Act 1973 (Cth), s 128A Medical Act 1848 (UK) Medical Act 1894 (WA), s 11AA, s 13, s 13(1), s 13(2), s 13(3), s 13(3b), s 13(9)(b) Medical Practice Act 1992 (NSW), s 36, s 37, s 61(1)(a), s 61(2) Mutual Recognition (Western Australia) Act 1995(WA), s 20
Case References:	A County Council v W (Disclosure) [1997] 1 FLR 574 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Bham and Medicare Participation Review Committee and Anor [2002] AATA 768 Briginshaw v Briginshaw (1938) 60 CLR 336 Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 Felix v General Dental Council [1960] AC 704 Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1 Re Anandasivam (2003) 34 SR(WA) 334 Roylance v The General Medical Council [2001] AC 311 Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 Hardcastle v Commissioner of Australian Federal Police 53 ALR 593 In Re: Booth (Unreported, Medical Board of Western Australia, No 1705-77, 6 September 2004) In Re: McKenzie (Unreported, Medical Board of Western Australia, No 1501-7, 20 July 2004) Jemielita v Medical Board of Western Australia (Unreported, Supreme Court of Western Australia, No 1106 of 1992, 13 November 1992, Lib No 920584) Lilienthal v Migration Agents Registration (NSW Registry) (Unreported, BC 200200399) McEniff v General Dental Council [1980] 1 WLR 328 Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215 Re: Davis (1947) 75 CLR 409 Re: De Souza (Unreported, Medical Board of Western Australia, 6 June 2000) Re: Jennings (1980) 23 SASR 318 Re: Phillips (1978) 18 SASR 44 Re: Summers (Unreported, Medical Board of Western Australia, 22 July 1997) Verma v McGregor (Unreported, Court of Appeal, New South Wales, 294 of 1998)

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL ACT 1894 (WA) CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and BHAM [2006] WASAT 190 MEMBER : JUSTICE M L BARKER (PRESIDENT)

MS J STANTON (SENIOR SESSIONAL MEMBER)
DR G WARD (SENIOR SESSIONAL MEMBER)
DR P WINTERTON (SENIOR SESSIONAL MEMBER)

HEARD : 10 JANUARY 2006 DELIVERED : 11 JULY 2006 FILE NO/S : VR 142 of 2005

VR 143 of 2005
VR 144 of 2005

BETWEEN : MEDICAL BOARD OF WESTERN AUSTRALIA

Applicant

AND

AMEEN AHMED BHAM
Respondent

Catchwords:

Vocational regulation - Medical practitioner - Whether medical practitioner "unfit to practise" by reason of convictions in New South Wales for offences under s 128A Health Insurance Act 1973 (Cth) - Whether medical practitioner guilty of "infamous or improper conduct in a professional respect" - Allegation that practitioner knowingly or recklessly failed to disclose convictions when

(Page 2)

registered in Western Australia - Allegation that practitioner lied to fellow practitioner about purpose of a $25 000 loan and a $10 000 loan and failed to disclose to him that he was an undischarged bankrupt contrary to s 269(1)(a) Bankruptcy Act 1966 (Cth)

Legislation:

Bankruptcy Act 1966 (Cth), s 269, s 269(1)(a)

Health Insurance Act 1973 (Cth), s 128A
Medical Act 1848 (UK)
Medical Act 1894 (WA), s 11AA, s 13, s 13(1), s 13(2), s 13(3), s 13(3b), s 13(9)(b)
Medical Practice Act 1992 (NSW), s 36, s 37, s 61(1)(a), s 61(2)
Mutual Recognition (Western Australia) Act 1995(WA), s 20

Result:

In VR 142 of 2005 practitioner found guilty of infamous conduct

In VR 143 of 2005 practitioner found not guilty on allegation of "unfit to practise"
In VR 144 of 2005 practitioner found guilty of infamous conduct

Category: A

Representation:

Counsel:

Applicant : Ms MJ Naylor and Ms TP Eves
Respondent : Mr GLW Vickridge

Solicitors:

Applicant : Tottle Partners
Respondent : Mr GLW Vickridge

Case(s) referred to in decision(s):

A County Council v W (Disclosure) [1997] 1 FLR 574

(Page 3)

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Bham and Medicare Participation Review Committee and Anor [2002] AATA 768
Briginshaw v Briginshaw (1938) 60 CLR 336
Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30
Felix v General Dental Council [1960] AC 704
Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1
Re Anandasivam (2003) 34 SR(WA) 334
Roylance v The General Medical Council [2001] AC 311
Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279

Case(s) also cited:

Hardcastle v Commissioner of Australian Federal Police 53 ALR 593
In Re: Booth (Unreported, Medical Board of Western Australia, No 1705-77, 6 September 2004)
In Re: McKenzie (Unreported, Medical Board of Western Australia, No 1501-7, 20 July 2004)
Jemielita v Medical Board of Western Australia (Unreported, Supreme Court of Western Australia, No 1106 of 1992, 13 November 1992, Lib No 920584)
Lilienthal v Migration Agents Registration (NSW Registry) (Unreported, BC 200200399)
McEniff v General Dental Council [1980] 1 WLR 328
Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215
Re: Davis (1947) 75 CLR 409
Re: De Souza (Unreported, Medical Board of Western Australia, 6 June 2000)
Re: Jennings (1980) 23 SASR 318
Re: Phillips (1978) 18 SASR 44
Re: Summers (Unreported, Medical Board of Western Australia, 22 July 1997)
Verma v McGregor (Unreported, Court of Appeal, New South Wales, 294 of 1998)

(Page 4)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Tribunal dealt with three allegations against Dr Ameen Ahmad Bham (the practitioner).

2 In proceeding VR 143 of 2005, the Tribunal dismissed an application that the practitioner was unfit to practise as a medical practitioner by reason of his conviction in New South Wales in 1996 of 18 counts of making a false statement contrary to s 128A of the Health Insurance Act 1973 (Cth).

3 In proceeding VR 142 of 2005, the Tribunal found that the practitioner was guilty of infamous conduct in a professional respect, in that on 20 August 1998 he applied to the Medical Board of Western Australia to be registered as a medical practitioner pursuant to the Mutual Recognition (Western Australia) Act 1995 (WA) and knowingly failed to disclose that he had earlier been convicted in New South Wales of 18 counts of making a false statement contrary to s 128A of the Health Insurance Act 1973 in New South Wales.

4 In proceeding VR 144 of 2005, the Tribunal found the practitioner guilty of infamous conduct in a professional respect in that he borrowed from a fellow practitioner the sums of $25 000 and $10 000 at a time when he was an undischarged bankrupt without disclosing this fact to the fellow medical practitioner contrary to the requirement of s 269(1)(a) of the Bankruptcy Act 1966 (Cth); and that at about the same time the practitioner lied to the fellow practitioner about the reason why he required the $25 000 in order to induce the fellow practitioner to make that loan.

5 In VR 142 of 2005, the Tribunal indicated that it would order that the registration of the practitioner be suspended for 12 months.

6 In VR 144 of 2005, the Tribunal indicated it would order that the registration of the practitioner be suspended for six months.

7 The Tribunal indicated that the periods of suspension would run concurrently.

(Page 5)

Issues

8 The Medical Board of Western Australia (Medical Board) makes the following three allegations against Dr Ameen Ahmad Bham (the practitioner):

• In application VR 143 of 2005, that the practitioner being a medical practitioner registered under the Medical Act 1894 (WA) (as amended) is unfit to practise as a medical practitioner on the grounds that on 6 April 1998 the practitioner was convicted of 18 counts of making a false statement contrary to s 128A of the Health Insurance Act 1973 (Cth). This application is made under s 13(2) of the Medical Act 1894.

• In application VR 142 of 2005, that the practitioner is guilty of infamous or alternatively improper conduct in a professional respect on the grounds that on 20 August 1998 the practitioner applied to the Medical Board to be registered as a medical practitioner and, in support of his application, made a statement that he had not, at any time in Western Australia, or elsewhere, been convicted of any offence when he:


(1) knew the statement was false; or
(2) made the statement recklessly without caring if it was true or false
in that he had been convicted in New South Wales on 6 April 1998 of 18 counts of making false statements contrary to s 128A of the Health Insurance Act 1973 (Cth). This application is made under s 13(1) of the Medical Act 1894.

• In application VR 144 of 2005 that the practitioner is guilty of infamous or alternatively improper conduct in a professional respect on the grounds that:


(1) On 28 February 2003 Dr Bham borrowed $25 000 (first loan) from a fellow medical practitioner, namely Dr Vevil De Kauwe without informing Dr De Kauwe that he was an undischarged bankrupt in breach of s 269(1)(a) of the Bankruptcy Act 1966 (Cth).

(Page 6)

(2) On or about 6 March 2002, the practitioner borrowed $10 000 from Dr De Kauwe without informing Dr De Kauwe that he was an undischarged bankrupt in breach of s 269(1)(a) of the Bankruptcy Act 1966 (Cth).
(3) The practitioner lied to Dr De Kauwe in order to induce him to make the first loan.

9 This application is made under s 13(1) of the Medical Act 1894.

Facts in VR 143 of 2005

10 The practitioner was first registered as a medical practitioner in Australia in the State of New South Wales on 8 April 1976, having earlier graduated from the Rangoon Medical Institute in Burma in 1963. On 13 November 2002, the New South Wales Medical Board removed the practitioner's name from the New South Wales Register for failure to pay registration fees, and the practitioner remains unregistered in New South Wales.

11 However, at various times the practitioner has also been registered in the States of Victoria, Queensland and Western Australia and in the Australian Capital Territory.

12 The practitioner was registered in Western Australia on 20 August 1998 through the mutual recognition in this State of his then current registration in New South Wales and has remained so registered since that time. More is said later about the mutual recognition registration process.

13 At material times in 1993 the practitioner was an approved pathology practitioner for the purposes of the Health Insurance Act 1973 (Cth) and employed by Pathlab Diagnostics at Brighton-Le Sands, Sydney, New South Wales.

14 On 6 December 1996, in the Local Court at the Downing Centre (Sydney) New South Wales, the practitioner was convicted of 18 offences under s 128A of the Health Insurance Act 1973. On 6 April 1998, the Local Court sentenced the practitioner and fined him $9000 with court costs of $50.

15 The facts in relation to which the convictions were made were that between 8 February 1993 and 25 May 1993, the practitioner made false statements in 18 batch headers by which claims were made by him on the Health Insurance Commission for the performance of the procedure

(Page 7)

described by Item 66317 of the Medicare Benefits Schedule (the quantification of HDL Cholesterol) in circumstances where:

(1) in 104 cases, the conditions for a claim under Item 66317 were not satisfied and the claim should instead have been made for the performance of the procedure described by Item 66201, for which a lower benefit was payable;

(2) in 141 cases, the practitioner did not hold a written request for the service as required.

16 The Health Insurance Commission audited 850 claims for HDL, 50 per month for each month in the period 1 January 1992 to 31 May 1993. In respect of 141 of the 850 claims, the practitioner was not entitled to claim any Medicare benefit because he had not received a written request for an HDL request from the referring practitioner. In respect of a further 104 claims, as the criteria for Item 66317 were not met, the respondent was not entitled to a claim under the Item number, however he may have claimed under Item 66201 which attracts a slightly smaller benefit.

17 Where a treating practitioner requires pathology tests to be done on a patient, a pathology request form should accompany the specimen to the laboratory. The request is normally on stationery supplied by the laboratory to the requesting practitioner. The request form should indicate what the treating practitioner wishes to be done. Occasionally, the requesting practitioner makes a further request for tests on the sample taken. In these cases, if the further request is not made in writing, written confirmation must be sent to the laboratory within 14 days of the additional request being made. All requests and written confirmations must be kept by the laboratory for a period of 18 months. In the cases in respect of which the practitioner was convicted, the practitioner did not hold these written requests.

18 On 6 April 1998, in the Local Court at Kogarah, the practitioner was sentenced in respect of the 18 offences. However, prior to that sentencing hearing, the practitioner had lodged an appeal against the convictions in the Supreme Court of New South Wales. On 6 April 1998, counsel for the practitioner advised the Magistrate in the Local Court at Kogarah that steps were being taken to cause the Supreme Court proceedings to be dismissed. The Magistrate then imposed a total fine of $9000 and court costs of $50 in respect of the convictions against the practitioner.

19 Following his convictions, the matters the subject of the convictions were referred to a Medicare Participation Review Committee (Committee)

(Page 8)

established under the Health Insurance Act 1973 and on 20 November 2000 the respondent appeared before that Committee. On 9 March 2001 that Committee disqualified the practitioner from participation in the Medicare Scheme for 26 weeks. The practitioner then appealed this decision to the Administrative Appeals Tribunal (Cth) which reduced the disqualification to three months (see Bham and Medicare Participation Review Committee and Anor [2002] AATA 768).

20 The Committee also referred the complaint to the New South Wales Medical Board, which in turn referred the complaint to its Professional Standards Committee. On 8 December 2004, the Professional Standards Committee was convened and made findings that the respondent was guilty of "unsatisfactory professional conduct" and "professional misconduct" within the meanings of those expressions in s 36 and s 37 of the Medical Practice Act 1992 (NSW).

21 The Professional Standards Committee made the following consequential orders:

(1) In accordance with the provisions of s 61(1)(a) of the Medical Practice Act 1992, Dr Bham is severely reprimanded.

(2) In accordance with the provisions of s 61(2) of the Medical Practice Act 1992, the Committee directs that should Dr Bham be re-registered in New South Wales, his registration is to be subject to the following conditions:


(2.1) Dr Bham is required to undertake and satisfactorily complete all components of the postgraduate course Ethics MFM 1017, in the Master of Family Medicine, conducted by the Department of General Practice in the School of Primary Health Care, Monash University, 867 Centre Road, East Bentleigh, Victoria 3165.

(2.2) Dr Bham must provide the Board with evidence of enrolment in the course within two weeks of re-registration.

(2.3) Dr Bham is to complete monthly progress reports for the course.

(2.4) Dr Bham must provide the Board with a copy of a certificate or other evidence detailing successful

(Page 9)

completion or otherwise of all course components within two weeks of completion.

(2.5) Dr Bham is to complete all components of the course within 12 months of commencement.

(2.6) Dr Bham is responsible for any costs incurred in participating in the course.

Contentions and findings in VR 143 of 2005

22 The Medical Board contends that the practitioner should be dealt with under the Medical Act 1894 (WA) in respect of his conviction and earlier conduct in New South Wales, notwithstanding that the Professional Standards Committee of the New South Wales Medical Board made an order in relation to such conduct. The Board relies on s 13(2) of the Medical Act 1894 to press its application. This enables the Board to allege a practitioner is unfit to practise by reason of a conviction in Western Australia or elsewhere.

23 Under s 13(3b), the Tribunal, on dealing with an allegation under s 13(2) is limited to ordering the removal of the name of the practitioner from the register or suspending registration to practise. Thus, it has no other powers of discipline such as reprimand, fine and the like, if it finds the s 13(2) ground is made out.

24 Counsel for the Medical Board submits that because the New South Wales order only takes effect when the practitioner seeks to be re-registered in New South Wales, which re-registration he has never sought, the practitioner effectively has not suffered any disciplinary penalty in respect of his offences. Rather, at the time the order was made, the practitioner was registered elsewhere in Australia, including Western Australia where his right to practise remains undiminished.

25 The conduct complained of was considered to be "unsatisfactory conduct" and "professional misconduct" under the Medical Practice Act 1992 (NSW). However, the Tribunal is not invited to determine if it should be considered "infamous" or "improper conduct" under the Western Australian Act. The sole question under s 13(2) is whether the convictions render the practitioner "unfit to practise".

26 The evidence concerning the conduct leading to the convictions in New South Wales does not disclose the sort of conscious wrongdoing that normally warrants conduct being described as "disgraceful" or "dishonourable", and so "infamous" for the purposes of s 13 of the

(Page 10)

Medical Act 1894. This view also seems to have supported the findings made by the Professional Standards Committee of the New South Wales Medical Board.

27 However, counsel for the Medical Board submits that in substance the convictions were for offences the essence of which involved dishonesty, is a characteristic fundamental to the practice of medicine. This is supported in part by s 11AA of the Medical Act 1894 which requires as a condition of registration that a person be of good character. Counsel contends that the fact that there have been convictions of the type entered justify the view that the practitioner "is unfit to practise".

28 Counsel for the Board refer to the case Re Anandasivam(2003)34 SR(WA) 334. The Tribunal has little doubt that in a case like this, where a medical practitioner has committed fraud, there will always be a strong case to be made that the practitioner is unfit to practise and therefore should, in terms of s 13(3b), either be deregistered or suspended from practice.

29 In the present case, however, it is not clear to the Tribunal that the practitioner was guilty of fraud in any relevant sense. The evidence before us suggests that at the material time the practitioner was a salaried pathologist who derived no personal financial gain from the overcharging involved. His evidence on that issue was not contradicted in the proceedings in the Commonwealth Administrative Appeals Tribunal. It appears that the Tribunal accepted what the practitioner put to them in that regard.

30 There appears to be some foundation to the submission made by counsel for the practitioner that matters in respect of which the practitioner was charged were the result of inadequate checking by him and of a faulty administrative procedure which did not separate out matters where there was no written request from those in respect of which claims were forwarded to Medicare.

31 Consequently, the Tribunal is not satisfied that the facts underlying the convictions, or the convictions themselves, are for dishonesty offences. As a result, the Tribunal is not satisfied that the allegation that the practitioner is unfit to practise by reason of the convictions in New South Wales is made out.

(Page 11)

Facts in VR 142 of 2005

32 The facts relevant to this proceeding include the practitioner's convictions in April 1998 of the 18 offences under s 128A of the Health Insurance Act 1973 which have already been mentioned.

33 On 20 August 1998 - four months after the practitioner's conviction and sentence in the Local Court at Kogarah, New South Wales, of the 18 offences - the practitioner applied to the Medical Board of Western Australia to be registered as a medical practitioner pursuant to the provisions of s 20 of the Mutual Recognition (Western Australia) Act 1995 (WA). In support of his application to be so registered, the practitioner provided the Medical Board with a statutory declaration that included the statement that he had not at any time in Western Australia or elsewhere been convicted of any offence. The statutory declaration was provided to the Board by the practitioner in conformity with the Board's registration procedures.

Conclusion and findings in VR 142 of 2005

34 The Board says the practitioner either made the statement in the statutory declaration in circumstances where he knew it to be false or that he made it recklessly without caring whether it was true or false, in that he had been convicted in New South Wales of the 18 offences of making false statements contrary to s 128A of the Health Insurance Act 1973 (Cth).

35 The Board says that in the circumstances in which the practitioner made the statement his conduct must be considered infamous conduct, as it is "disgraceful" on any view.

36 In this regard, the Board emphasises that the mutual recognition scheme as it applied then (and as it still applies) relies for its administration and success on the frankness and honesty of an applicant in disclosing matters of relevance to the Board when requested to do so. The Board says it is properly reliant on a medical practitioner who applies for registration by mutual recognition to be candid and honest in his or her disclosures to the Board. This is particularly so as the Board is not in a position to conduct a full investigation into the good faith of each practitioner who applies for registration; it must be able to rely upon the representations of the practitioner involved.

37 The Board says that the statements made by the practitioner in the declaration at the relevant time take on an even greater significance by

(Page 12)

reason of the fact that the statement was made in a statutory declaration wherein he consciously averred to the truth of his statements.

38 The Board say that had the practitioner been truthful in his statutory declaration, while it may have been that the practitioner as a matter of law would have been entitled to insist on registration under the Mutual Recognition (Western Australia) Act 1995- because nothing in the Mutual Recognition (Western Australia) Act 1995 seemed to permit the Board to deny registration because of the disclosure of a prior conviction - the disclosure of the conviction would have permitted the Board to have moved for the removal of the practitioner's name from the register, as it now has sought to do. The Board points out that good character, amongst other things, is an express requirement of registration as a medical practitioner pursuant to the provisions of s 11AA of the Medical Act 1894,and the Mutual Recognition (Western Australia) Act 1995 may be taken to be founded on an assumption that, if a practitioner is registered elsewhere in Australia, no question has arisen as to the maintenance of his or her good character elsewhere in Australia.

39 The Board submits that, in circumstances where the practitioner can be seen to have failed to make proper disclosure about his earlier conduct, he has conducted himself in a manner that practitioners of good repute and competency would reasonably regard as "disgraceful or dishonourable" and thus "infamous", in the terms discussed in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750.

40 The practitioner's defence is that, while he now accepts that he was convicted at all material times and should have made disclosure of his convictions to the Board at the material time in August 1998, he then held the belief that the offences of which he had been convicted four months earlier in New South Wales were not "convictions" to which the request for disclosure related.

41 At the hearing in the Tribunal, the basis of the practitioner's primary belief in this regard seemed to arise from an observation that a former solicitor of his had made on some social occasion in the 1980's, to the effect that where an appeal is lodged the conviction is not in place (or words to that effect).

42 Additionally, the practitioner seems also to rely on a belief that by reason of the circumstances in which the offences were committed - where he says it was accepted by the Court that convicted him that there

(Page 13)

was no conscious wrong-doing or dishonesty - the convictions somehow were not the type of convictions of which the Medical Board of Western Australia were expecting disclosure when he applied for registration under the Mutual Recognition (Western Australia) Act 1995 as a general practitioner in Western Australia, given he was convicted by reference to his conduct in New South Wales as a pathologist.

43 When the practitioner appeared before the Professional Standards Committee in New South Wales in December 2004 to deal with similar complaints of unsatisfactory conduct by reference to his registration in that State, he appears also to have told that Committee he did not disclose the convictions to the Medical Board in Western Australia because he had an appeal in place against the convictions and believed, from what his solicitor had earlier remarked back in the 1980's, that the appeal had the effect of suspending the convictions. He also told the Committee that he did not consider the convictions were relevant to registration as a general practitioner (as he proposed then to practise in Western Australia) because they had been committed in the course of practising as a pathologist.

44 The Tribunal accepts that while the civil standard of proof (on the balance of probability) ordinarily applies in proceedings such as these, it is nonetheless appropriate to regard the Briginshaw approach which requires the finder of fact to have a reasonable satisfaction that the things complained of actually occurred before making any finding against a person.

45 In Briginshaw v Briginshaw (1938) 60 CLR 336 at pages 362 and 363 Dixon J said:

"... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was

(Page 14)

whether some act had been done involving grave moral delinquency..."

46 Also in Briginshaw, Rich J observed at [350]:

"The nature of the allegation requires as a matter of common sense and worldly wisdom a careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion."

47 In this case, given the factual context in which the practitioner acknowledges that he had in fact been convicted of 18 offences in New South Wales in April 1998, in a practical sense the burden falls on the practitioner to explain why he did not make disclosure to the Board of the convictions entered against him just four months earlier. Mere forgetfulness is not plausible given the short period of four months between conviction and the declaration. Indeed the practitioner does not assert mere forgetfulness. Rather, he attempts to offer a more substantive explanation (or explanations). As noted, his primary explanation is that he believed the convictions were technically not convictions because an appeal had been lodged against them, which belief he attributes to a comment made in a social context by a former (now deceased) solicitor in the 1980's.

48 As to the basis of this asserted belief, to say the least, it was at best based on a very hazy recollection. When first questioned by counsel for the Board as to his state of mind when answering the Board's questions in August 1998, the practitioner both said that the remark made some 20 or more years earlier by the former solicitor were not actively present in his mind and yet, at the same time, he held the belief that the convictions were not convictions.

49 The Tribunal does not accept that the practitioner's claim that he actually or honestly held the asserted belief when he gave his statutory declaration to the Medical Board of Western Australia in August 1998. While the practitioner says he is not a "legal man", he otherwise presented himself to the Tribunal as a sophisticated person. He is a well educated and qualified medical practitioner, who formerly practiced as a pathologist. He is also experienced in business, which may be inferred from his own statements that in the 1980's he was regularly in social contact with the former solicitor because the solicitor acted for him on

(Page 15)

property and commercial transactions. The Tribunal finds the belief claimed to be utterly implausible.

50 It also does not sit comfortably with the fact that the practitioner's own legal counsel told the Magistrates Court at Kogarah in April 1998 that only the paperwork remained to be completed before the appeal against his convictions was dismissed.

51 That leaves for consideration the practitioner's further explanation given to the New South Wales Professional Standards Committee that he was of the view that the convictions arising from his conduct as a pathologist in New South Wales were not relevant to his proposed practise as a general practitioner in Western Australia. It might be remarked in passing that this rather tends to support the view that the practitioner was prepared to overlook the convictions, not because there was an appeal pending, but because he had not considered them terribly relevant to the practise of a general practitioner. Nonetheless, the Tribunal does not accept that this was the practitioner's generally held view as of August 1998, however much he may have convinced himself then or later that it was a good reason not to disclose his convictions.

52 The Tribunal is comfortably satisfied, notwithstanding the serious consequences that may follow from the finding, that when the practitioner stated to the Medical Board in August 1998 that he did not have any convictions he knew the statement to be false, as the Board alleges in the first alternative. This is not a case of mere reckless behaviour.

53 As to whether the practitioner's conduct should be considered infamous under the test laid down in Allinson, or merely improper conduct in a professional respect, the Tribunal considers in light of its findings the practitioner's conduct must be considered infamous. To state that he did not have any convictions, when he knew he did, can only be characterised as behaviour that other practitioners of good repute and competency would consider disgraceful or dishonourable.

54 As to penalty, on the one hand, while it might be argued that such conduct should not automatically result in suspension, the failure of the practitioner to be other than perfectly frank with the Medical Board in his dealings with the Board suggests an inability to be honest with colleagues in his profession and also with patients and others with whom he may be called upon to deal as a practitioner. Members of the public expect members of the medical profession to be scrupulously honest in the conduct of their professional affairs. A period of suspension from practice

(Page 16)

is called for to mark the seriousness of the practitioner's conduct and the need for medical practitioners to be utterly honest in their professional dealings. The public cannot have any confidence in medical practitioners if they have licence to behave in the way the practitioner did in this instance.

Facts in VR 144 of 2005

55 The facts in VR 142 and VR 143 of 2005 provide much of the background to this matter. Following the registration of the practitioner as a medical practitioner in Western Australia in 1998, he commenced to practise in Western Australia as a general practitioner.

56 At that time -indeed since June 1997 - the practitioner was an undischarged bankrupt under the Bankruptcy Act 1966 (Cth).

57 In October 2001, the practitioner - who was then employed at a medical practice in Beechboro - contacted Dr De Kauwe, who operated the nearby Morley Family Practice as a sole practitioner. The practitioner suggested that he might provide services as a medical practitioner in Dr De Kauwe's practice. He initially approached Dr De Kauwe because a proposed corporation buy-out of the Beechboro practice had made his own future uncertain.

58 At the October 2001 meeting, the practitioner told Dr De Kauwe that he was currently working at the nearby practice and because it was being corporatised and moving to Noranda, he was considering leaving the practice. The practitioner and Dr De Kauwe did not come to any firm agreement at that meeting.

59 In December 2001, the practitioner and Dr De Kauwe met again. Dr De Kauwe says that during this visit the practitioner told him he had a large client base at the other practice and showed him several Health Insurance Commission monthly payment summary statements, which identified his billings to Medicare. He says that the practitioner told him he wanted only a room in which to practice as an independent practitioner. Dr De Kauwe says that the practitioner and he then concluded an arrangement whereby the practitioner would operate from his practice and would receive 60% commission, less GST, for all his billings. The two doctors discussed a possible starting date in March 2002.

60 Dr De Kauwe says the practitioner then informed him that, in order to leave the other practice, he was required to pay the practice $25 000 to

(Page 17)

gain his release. Dr De Kauwe says that following further discussion he agreed to provide the practitioner with a loan of $25 000 for this purpose.

61 Dr De Kauwe says he subsequently engaged his solicitors to prepare a loan deed based on his agreement with the practitioner. Under the deed, which was subsequently signed by the relevant parties, the practitioner was engaged as an independent contractor to Morley Family Practice based on 60% commission, less GST, and was required to repay the practice a minimum of $480 per week for 52 weeks with one final repayment of $40 in respect of the loan of $25 000. The deed was between Vevil De Kauwe Pty Ltd ACN 092112304 and Victor Bham. The practitioner's signature appears on the last page of the deed and was witnessed by the receptionist in the Morley Family Practice. The cheque for $25 000 was that of the company which Dr De Kauwe controlled and used to administer his practice.

62 Dr De Kauwe says that he and the practitioner signed the deed on 28 February 2002 and on the same day he gave the practitioner a cheque for $25 000 payable to "Victor Bham", the name the practitioner had used in all their dealings to that point. The $25 000 cheque was produced in evidence and showed certain alterations.

63 Dr De Kauwe explained how the cheque came to be altered. Dr De Kauwe said the practitioner, as "Victor Bham", was the original payee and the cheque was marked "not negotiable". Dr De Kauwe said that later on the day he gave the practitioner the cheque, the practitioner returned and asked him to alter the cheque. He said the practitioner told him that "The bank don't know me as Victor so could you cut that off"; and that, "I can't put this cheque into my account because it will take several days to clear because it is non negotiable. If you cut that off, I'll be able to get this cash and give it to the Beechboro Family Practice straight away so that I can be released by them". Dr De Kauwe says that as a result of that representation, he agreed to make the alterations requested by the practitioner including by striking through the words "not negotiable".

64 In his evidence, the practitioner agreed that the $25 000 cheque was initially made payable to "Victor Bham" and was marked "not negotiable" and that changes were later made to make it payable to cash. The practitioner said that "… I told him [Dr De Kauwe] that because I had commitments at that time and then I wanted to settle some accounts, pay all the arrears and all that" (T 218). He said he didn't want to have to wait

(Page 18)

a period of five or seven days for the cheque to clear. He claims that he said to Dr De Kauwe:

"Look, I've got to pay some of my commitments, would you be good enough to do two things. Either you directly debit [sic] it into my account so funds are available or I'll go and get it straight away."

65 Dr De Kauwe says that a few days later the practitioner told him that the practitioner had withdrawn $10 000 from the bank, placed it in his car and while he was purchasing a hamburger in a fast food outlet, his car was broken into and the money stolen. The practitioner then asked Dr De Kauwe for a replacement loan of $10 000. He agreed. On or about 6 March 2002, Dr De Kauwe gave the practitioner a cheque for $10 000, for which he received a receipt. Dr De Kauwe says that the practitioner agreed in writing to repay the $10 000 at 7% interest within four weeks of 18 March 2002.

66 The practitioner however suggested that both the $25 000 and the $10 000 transactions were not intended to be loans and were mere inducements given by Dr De Kauwe to get him (the practitioner) to join the Morley Family Practice. In his evidence-in-chief (T 217) the practitioner said that he told Dr De Kauwe that he had been offered $30 000 to join the new corporatised practice at Noranda and asked what he could offer, to which Dr De Kauwe had said "I'm not a corporation… so I can't just afford $30 000". The practitioner says that he then said, "Alright then, what about $25 000, would you be able to offer me that?". He claims Dr De Kauwe said "Provided you pay me back". The practitioner then stated:

"I felt sorry for the guy, just simple, because he was not an entrepreneur, I knew that, he was not a corporation. So I said 'all right' because we are professional doctors and if you want your money back I'll negotiate how to pay back and that's where the negotiations started and then he told me you pay '$480 a week' and all that and I said, 'okay'."

67 The practitioner accepted that at no time did he disclose to Dr De Kauwe that he was a bankrupt when he received the $25 000, nor at the time he received the $10 000. In this regard, he told his counsel in examination in chief (T 219):

"It wasn't any intention of deceit or anything, it was just embarrassing to tell a fellow practitioner that you are bankrupt.

(Page 19)

He may get over worried about something which he probably doesn't know about bankruptcy law or whatever, the Bankruptcy Act, so I didn't want to unnecessarily cause him any alarm or anything. It wasn't any sort of deceit or anything like that, it was just a pure refraining from mentioning [it]."

68 As can be seen, the practitioner and Dr De Kauwe gave the Tribunal quite different accounts of the circumstances in which they concluded an arrangement whereby the practitioner began working for Dr De Kauwe. What is not in dispute is that on or about 28 February 2002, Dr De Kauwe gave the practitioner a cheque for $25 000 and then on or about 6 March 2002, gave the practitioner a further cheque for $10 000.

69 Questions arise about whether the practitioner lied to Dr De Kauwe about the purpose of the transaction and whether each of the transactions constituted a loan of monies. If they constituted loans then, because at material times since June 1997 the practitioner was an undischarged bankrupt, he was affected by the terms of s 269(1)(a) of the Bankruptcy Act 1966. That provision provides that an undischarged bankrupt shall not obtain credit in excess of $3000 from a person without informing that person that he or she is an undischarged bankrupt. The practitioner accepts that he did not tell Dr De Kauwe that he was a bankrupt.

Contentions and findings in VR 144 of 2005

70 The Tribunal has little hesitation in accepting the account of events given to the Tribunal by Dr De Kauwe. The evidence of the practitioner denying the initial conversation about why he needed the $25 000, as well as the subsequent conversation where he arranged for the cheque for $25 000 to be altered, are not accepted by the Tribunal.

71 The reasons why we do not accept Dr Bham's evidence are as follows:

(1) His evidence was often vague and rambling. Significantly, he gave evidence in chief about matters he said were initially discussed with Dr De Kauwe, which were never put to Dr De Kauwe by the practitioner's counsel in cross-examination. His evidence was in many ways not responsive to his own counsel's questions. He developed evidence also not referred to in his own witness statement, which was signed by him and given to the Tribunal immediately before he gave evidence. The discreditable inference that the Tribunal would be entitled to draw from

(Page 20)

all this - namely, that it was being made up as the practitioner gave his evidence - was frankly accepted by Dr Bham's counsel, and we draw that inference.

(2) Dr Bham wanted to draw some distinction between the arrangements concerning the $25 000 (and the $10 000) being an "inducement" as opposed to a "loan". On the one hand, he accepted he had agreed to repay the $25 000. On the other hand, he seemed to want to believe that it should have been described as an "inducement" rather than a "loan" in the deed prepared by Dr De Kauwe's solicitors. At the same time, in his evidence-in-chief, when he was providing a rambling account of his first dealings with Dr De Kauwe, he acknowledged he agreed to the proposal to repay the $25 000 and that he and Dr De Kauwe then discussed the terms of repayment. The terms of repayment mentioned by him were substantially the same as those that ultimately appeared in the deed.

(3) Dr Bham suggested in his written witness statement (which was signed and provided to the Tribunal immediately before he gave evidence) that he really did not look at the loan documentation. However, in cross-examination it was quite clear that he had given it much more than cursory consideration. He initialled amendments to two clauses of the deed. Necessarily these changes must have been at his insistence because they were for his benefit. Further, the terms of the deed spelt out terms of repayment which were the same as those he had previously discussed with Dr De Kauwe, according to his own evidence. Dr De Kauwe also said in evidence that Dr Bham had provided documentation which satisfied him and his wife that the loan could be repaid within the two year period. This was the period for repayment specified in the deed. All in all, the evidence of Dr De Kauwe is entirely consistent with what is in the deed and there is no reason to think that it was intended to be other than a loan. That the giving of the loan might have been a factor that persuaded Dr Bham to join the Morley Family Practice is irrelevant.

(4) While there is no need to make any concluded finding on this point, rather than the fact being that the company that was involved in the corporatising of the Beechboro practice was prepared to, or had in fact, made an offer of

(Page 21)

$30 000 to Dr Bham for him to stay and move to Noranda, it may well be thought that no such offer was ever on the table and Dr Bham did not realistically believe that such an offer would ever be forthcoming. What is noteworthy, however, is that an offer form that he had signed (but the company never did) provided for a 50% split of his income, when he was used to receiving 60%; and it was a 60% arrangement the practitioner in fact made with Dr De Kauwe.

(5) As to the competing evidence about the alterations to the $25 000 cheque, the evidence of the practitioner goes little way to explaining what obviously was the case, that the cheque was drawn one way initially and then subsequently altered. The Tribunal accepts Dr De Kauwe's evidence about the circumstances in which this happened. Dr De Kauwe was clear that the practitioner gave him two reasons for the change: first, that the bank did not know him as "Victor"; and secondly, that he wanted principally to pay the Beechboro practice. The Tribunal also accepts Dr De Kauwe's explanation that in his earlier witness statements concerning the dealings between him and the practitioner, he did not deal with the question of the alterations to the $25 000 cheque because he only dealt with those issues that were raised with him by the solicitors acting for the Medical Board on the earlier occasion. While this issue was not raised until more recently, his recollections about the events were clear. The Tribunal accepts that in Dr De Kauwe's case, the transaction whereby he provided the practitioner with a cheque for $25 000 was a significant event. For the reasons set out in these reasons, The Tribunal prefers Dr De Kauwe's evidence over that of the practitioner because of its consistency.

(6) Generally speaking, in contrast to the practitioner, Dr De Kauwe gave his evidence in a clear, forthright and uncomplicated manner and no reason was demonstrated as to why he would have any particular reason to fabricate his evidence.

72 The Tribunal finds Dr Bham lied to Dr de Kauwe about the reason why he required the loan of $25 000. It may be that Dr Bham thought he could treat Dr De Kauwe in this way. Dr Bham described Dr De Kauwe -
(Page 22)

who is a 71 year old practitioner - as not a "big man", not familiar with "entrepreneurial" activities. On his own evidence, Dr Bham obviously thought he was a much "bigger" man, more sophisticated and commercially experienced than Dr De Kauwe. It must also be remembered that Dr Bham approached Dr De Kauwe for a job; it was not the other way around. Nonetheless, Dr De Kauwe, partly because of his age, was keen to reduce his own workload and was interested, and eventually prepared to take on, Dr Bham on the agreed basis; and to provide him with a loan, to be repaid, to facilitate Dr Bham's release from his former employment.

73 Dr Bham told Dr De Kauwe the $25 000 was needed to pay out his obligations to the practice at which he currently worked in order to be released from it. That was not true. Dr Bham agreed that there was no need for him to pay his existing practice any sum for him to be released.

74 The $10 000 payment made in March was also demonstrably a loan and was provided for the same purposes as the initial $25 000 loan. It was made simply in replacement of the $10 000 Dr De Kauwe understood to have been stolen.

75 Dr Bham also gave evidence that showed he well understood his obligations under s 269(1)(a) of the Bankruptcy Act 1966. For that reason, no doubt, the practitioner was anxious to characterise his two financial dealings with Dr De Kauwe as other than credit transactions. At best, the $25 000 transaction can be described as a loan which was intended to encourage Dr Bham to join the Morley Family Practice. It was not, however, on terms which permit its characterisation as other than a credit transaction for the purposes of s 269 of the Bankruptcy Act 1966. It was a loan.

76 The Tribunal finds that:

(1) Dr Bham did take out a loan - therefore obtained credit - in excess of $3000 contrary to s 269(1)(a) of the Bankruptcy Act 1966 (Cth) in that at all material times he was an undischarged bankrupt and did not inform Dr De Kauwe of the fact.

(2) Dr Bham lied to Dr De Kauwe about the purpose of both the $25 000 loan and the $10 000 loan in that he did not intend to use the moneys to obtain his release from his former employment, as he told Dr De Kauwe he would.

(Page 23)

77 The remaining question then is whether it can be said that the conduct of Dr Bham in relation to which we have made these findings can, in each case, be categorised as either infamous or improper conduct in a professional respect for the purposes of the Medical Act 1894.

78 In Allinson's case, previously mentioned, at p 763, Lopes LJ provided the well-known definition of "infamous conduct":

"If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open … to say that he has been guilty of 'infamous' conduct in a professional respect."

79 Whilst made in the late 19th century, this statement has stood the test of time and has repeatedly been applied in this State. It makes it clear that the primary inquiry is to be directed as to how particular conduct is regarded by professional colleagues of the medical practitioner, not by the community more generally, and that the conduct complained of must be in pursuit of the practitioner's profession.

80 Accordingly, in Felix v General Dental Council [1960] AC 704 at 720-721, Lord Jenkins made the point that to make good a charge of infamous or disgraceful conduct in a professional respect it is not enough to show "that some mistake has been made through carelessness or inadvertence", and that there must be "some element of moral turpitude or fraud or dishonesty in the conduct complained of, or such persistent and reckless disregard of [in that case] the dentist's duty in regard to records as can be said to amount to dishonesty for this purpose".

81 Consequently, it is also accepted that, in the case of negligence, the negligence may be so gross as to disclose a level of incompetence that would be regarded as "utterly disgraceful", even if there is no moral delinquency involved.

82 In all cases, however, the sage observations of Sugerman J in Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 at 36 in relation to the test should be borne in mind:

"In short, whether moral turpitude is a necessary ingredient of 'infamous conduct in any professional respect' is a matter on which no general rule can be laid down, the answer being

(Page 24)

dependent upon the nature of the conduct which is in question in each instance."

83 In this case, the question arises whether the conduct of the practitioner which was in contravention of the Bankruptcy Act 1966 proscription on a bankrupt person from entering into a credit transaction in excess of $3000 with a person without telling them that he or she is a bankrupt, and the conduct of the practitioner in lying to a fellow medical practitioner about the purpose of the $25 000 loan (and the subsequent $10 000 loan) that were provided by the fellow practitioner to facilitate the practitioner's commencement as a medical practitioner in the fellow practitioner's practice, constitute conduct in the pursuit of the practitioner's profession which would reasonably be regarded as disgraceful or dishonourable by his professional colleagues of good repute and competency.

84 In that regard it is also interesting to note the decision of Roylance v The General Medical Council [2001] AC 311 in which the United Kingdom Privy Council upheld a finding of the General Medical Council that Dr Roylance was guilty of "serious professional misconduct" as a registered medical practitioner on the ground of a failure to take action over the years when he was the District General Manager of a relevant health authority when concerns were being raised about the excessive mortality of infants, and a failure to take any steps in a particular case to prevent an operation from proceeding. The practitioner did not challenge the jurisdiction of the General Medical Council to inquire into the matters alleged against him, but contended that the conduct complained of - or his failure to act in certain cases - did not involve any judgment as a medical practitioner.

85 The Privy Council at [37] noted that the expression "serious professional misconduct" was a successor to the earlier phrase used in the Medical Act 1858 (UK) - and still used in the Medical Act 1894 (WA) - "infamous conduct in a professional respect", but that there was not any real difference of meaning intended by the change of words. Their Lordships noted that: "This is not an area in which an absolute precision can be looked for". However, some essential elements of the concept could be identified. This case therefore provides some useful guidance in relation to the matters now in issue.

86 At [38], their Lordships noted that "misconduct" is a word of general effect involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be

(Page 25)

found by reference to the rules or standards ordinarily required to be followed by a medical practitioner in particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word "professional" which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word "serious". It is not any professional misconduct which will qualify. The professional misconduct must be serious.

87 The Privy Council accepted at [39] that professional misconduct extends further than simple clinical misconduct:

"So it is not simply misconduct in the carrying out of medical work which may qualify as professional misconduct. But there must be a link with the profession of medicine. Precisely what that link may be and how it may occur is a matter of circumstances. The closest link is where the practitioner is actually engaged on his practice with a patient. Cases here may occur of a serious failure to meet the necessary standards of practice, such as gross neglect of patients or culpable carelessness in their treatment, or the taking advantage of a professional relationship for personal gratification."

88 The Privy Council further noted at [40] that certain behaviour may constitute professional misconduct even although it does not occur within the actual course of the carrying on of the person's professional practice, such as the abuse of a patient's confidence or the making of some dishonest private financial gain. Allinson's case referred to earlier, provides an example of infamous conduct in a professional respect, where a doctor by public advertisement warned the public to avoid other practitioners and recommended them to apply to himself. In that regard, the Privy Council at [40] noted with approval what Lord Esher MR had said in Allinson's case at 761 -

"The question is, not merely whether what a medical man has done would be an infamous thing for anyone else to do, but whether it is infamous for a medical man to do it… There may be some acts which, although they would not be infamous in any other person, yet if they are done by a medical man in relation to his profession, that is, with regard either to his patients or to his professional brethren, may be fairly considered 'infamous conduct in a professional respect' and such acts would, I think, come within s 29."

(Page 26)

89 The Privy Council emphasised at [41] that that definition was clearly not intended to be exhaustive or comprehensive.

90 Indeed, the Privy Council emphasised that serious professional misconduct may arise where the conduct is quite removed from the practice of medicine, but is of a sufficiently immoral or outrageous or disgraceful character: see A County Council v W (Disclosure) [1997] 1 FLR 574, where a question arose whether the alleged sexual abuse by a father of his daughter, the father being a medical practitioner, could constitute serious medical misconduct, which it was found it could. The Privy Council emphasised in relation to the case of W (Disclosure) that:

"What is important here is not only the fact that disgraceful behaviour remote from the carrying on of a professional practice may constitute serious professional misconduct, but also that the duty of a doctor to himself, if not to his profession, exists outwith the course of his professional practice. One particular concern in such cases of moral turpitude is that the public reputation of the profession may suffer and public confidence in it may be prejudiced."

91 These same concerns have also been expressed in vocational or disciplinary contexts in many Australian cases, including those dealing with the regulation of the legal profession. For example in Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, where a legal practitioner was convicted and sentenced to two years imprisonment with hard labour for manslaughter, the High Court accepted that the practitioner was amenable to professional discipline. The Court, by majority, thought the practitioner should be suspended from practice during the continuance of his imprisonment and not completely disbarred. Fullagar J (who was in the majority) observed at 290:

"Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister… But the whole approach of a court to a case of personal misconduct must surely be very different from its approach of professional misconduct. Generally speaking, the matter must have a more direct bearing on the question of a man's fitness to practise than the former."

See also Kitto J at 298 where his Honour noted:
(Page 27)

"Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands… But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task."

92 In a similar vein, in another English case, Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1, a farmer who was also a veterinary surgeon was found to have failed to give adequate care to animals on his farm. He was not guilty of any moral turpitude, but his conduct was held to constitute conduct disgraceful to him in a professional respect. The veterinary surgeon was found, on account of his work, as a farmer, to be guilty of disgraceful conduct by him as a practising veterinary surgeon.

93 In the present case now before the Tribunal, counsel for the practitioner contends that there is not the appropriate nexi between the conduct complained of and the pursuit of the medical profession by which to adjudge the practitioner guilty of infamous or improper conduct in a professional respect. Counsel refers to a number of factors in this regard including:

• That it is not open to the Tribunal to make a finding that the practitioner has committed an offence against s 269(1)(a) of the Bankruptcy Act 1966 (Cth).

• That the deed evidencing the loan was between the practitioner and a company, not Dr De Kauwe personally.

• That the transaction complained of was in effect a commercial transaction having nothing to do with the pursuit of medical practice.

(Page 28)

94 As to the question of breach of the Bankruptcy Act 1966, the Tribunal plainly is entitled to have regard to the nature of conduct complained of and whether or not it constitutes an offence against the law. In this case, there can be little doubt, in our view, that the conduct of the practitioner in negotiating a loan in excess of $3000 with Dr De Kauwe's administration company, through Dr De Kauwe, in circumstances where Dr De Kauwe was not advised by the practitioner that he (the practitioner) was a bankrupt, was conduct in contravention of the Bankruptcy Act 1966 s 269(1)(a). It is not necessary for the Tribunal to conclude that an offence was committed, indeed the Tribunal does not have any such jurisdiction, but it may for the purposes of these proceedings ascertain whether it considers that the conduct complained of appears to have contravened that statutory provision for the purposes of these disciplinary proceedings. In doing so, the Tribunal applies the Briginshaw standard of proof, referred to earlier. The Tribunal is quite satisfied that the conduct complained of contravenes the Bankruptcy Act 1966 provision. The Tribunal also considers that, when this conduct is understood as part of a course of conduct on the part of the practitioner whereby he obtained a $25 000 loan for the stated purpose of obtaining release from his former medical practice in order to commence practice at the Morley Family Practice, it is of relevance to the current proceedings. It is not conduct which can be, or should be, looked at in isolation.

95 As to the further proposition that the practitioner borrowed money from a company, not a medical practitioner, and for this reason his conduct should not be considered to have any connection with the pursuit of the practice of medicine, the fact is that the company concerned was a company controlled by Dr De Kauwe, which had the function of administering his medical practice known as Morley Family Practice that the practitioner wished to join. Further, the Tribunal notes that the practitioner negotiated the loan - which was evidenced by a deed involving himself and the company - for the purpose of facilitating his engagement by the Morley Family Practice. To achieve that outcome he needed to deal directly with the fellow practitioner, Dr De Kauwe. The Tribunal rejects the submission that the fact that the loan transaction in question was concluded between the practitioner and a company, not another medical practitioner, is of relevance in the particular circumstances of this case.

96 As to the overall proposition that the conduct complained of cannot be characterised as infamous or improper in a professional respect, because it should merely be characterised as a commercial transaction between two persons divorced from the practice of medicine, the Tribunal

(Page 29)

notes that the whole purpose of the initial loan transaction of $25 000, and the further loan transaction involving $10 000, was to enable the practitioner to obtain a release from his former medical practice in order to commence practice at the Morley Family Practice. Indeed, this was acknowledged by the practitioner in his own evidence, which we have recounted earlier in these reasons. The practitioner (T 217) acknowledged the professional context in which the loan was negotiated:

"I felt sorry for the guy, just simple, because he was not an entrepreneur, I knew that, he was not a corporation, so I said 'alright' because we are professional doctors and if you want your money I'll negotiate with you how to pay back and that's the negotiations started and then he told me you pay '$480 a week' and all that and I said 'okay'". (emphasis supplied)

97 The practitioner (T 219) also acknowledged the close, professional relationship in which the loan was negotiated, when he explained why he did not disclose to Dr De Kauwe that he was bankrupt:

"It wasn't any intention of deceit or anything, it was just embarrassing to tell a fellow practitioner that you are bankrupt. He may get over worried about something which he probably doesn't know about bankruptcy law or whatever, the Bankruptcy Act, so I didn't want to unnecessarily cause him any alarm or anything."(emphasis supplied)

98 The Tribunal considers that the overall conduct of the practitioner complained of, involving the making of a representation to a fellow medical practitioner for the purpose of concluding an arrangement whereby the practitioner would join his fellow practitioner in the practice of medicine, that he required a $25 000 loan to obtain release from his former medical practice - which was a lie - and his related behaviour in failing to inform his fellow practitioner that he was a bankrupt - as he was required to by s 269(1)(a) of the Bankruptcy Act 1966 - is conduct in the pursuit of the practitioner's profession.

99 Furthermore, by lying as he did and by failing to disclose to his fellow practitioner that he was bankrupt at the time he negotiated the two loans, the practitioner acted in a way which would be reasonably regarded as disgraceful or dishonourable by professional colleagues of good repute and competency.

100 For these reasons, the Tribunal considers the conduct of the practitioner in lying to Dr De Kauwe about the purpose of the $25 000

(Page 30)

loan and the $10 000 loan that he negotiated with him and the fact that Dr Bham did not inform Dr De Kauwe at material times when he negotiated the two loans that he was an undischarged bankrupt, constitutes infamous conduct in a professional respect.

101 Having regard to this finding against the practitioner, the only appropriate penalty is suspension from the practise of medicine. A reprimand or a fine for such conduct would simply be inadequate to protect the public interest and ensure that the standards of the medical profession upon which the public depend are maintained at a satisfactory level.

Conclusion and order in the three proceedings

102 In summary, the Tribunal has made the following findings:

• In VR 142 of 2005, that the practitioner is guilty of infamous conduct in a professional respect, in respect of which he should be suspended from medical practice.

• In VR 143 of 2005, that the application should be dismissed.

• In VR 144 of 2005, that the practitioner is guilty of infamous conduct in a professional respect, in respect of which he should be suspended from medical practice.

103 In relation to VR 142 of 2005, the Tribunal considers that a period of suspension of 12 months is appropriate.

104 In relation to VR 144 of 2005, the Tribunal considers that a suspension of six months is appropriate.

105 The Tribunal considers that the periods of suspension should be served at the same time, that is to say, concurrently and not cumulatively. The overall effect of this is that the practitioner will be suspended for an effective period of 12 months.

106 The Tribunal will hear from the parties as to (1) the date upon which the practitioner's suspension should commence and (2) as to the sum to be fixed by way of costs before issuing final orders.

107 The Tribunal proposes orders in the following terms:

1. In VR 143 of 2005, the application is dismissed

(Page 31)

2. In VR 142 of 2005 -

(a) the Tribunal finds the practitioner guilty of infamous conduct in a professional respect;
(b) the Tribunal orders that the registration of the practitioner be suspended for 12 months from [ ].
3. In VR 144 of 2005 -

(a) the Tribunal finds the practitioner guilty of infamous conduct in a professional respect;
(b) the Tribunal orders that the registration of the practitioner be suspended for a period of six months from [ ].
4. In relation to VR 142, 143 and 144 of 2005, the practitioner is to pay the costs of the Medical Board in a sum to be fixed.

I certify that this and the preceding [107] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE M L BARKER, PRESIDENT