Newcombe and Act Medical Board Of the; Medical Board Of Australia; (Occupational Discipline)
[2013] ACAT 15
•20 March 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NEWCOMBE & ACT MEDICAL BOARD OF THE
MEDICAL BOARD OF AUSTRALIA
(Occupational Discipline) [2013] ACAT 15
AA 12/50
Catchwords: OCCUPATIONAL DISCIPLINE – Health Professional - censure of the applicant for filing documents not on the proper occasion – criteria for granting leave to appeal out of time: acceptable explanation of delay, any action taken by the applicant apart from the application to extend time, whether extending time would cause any prejudice to the respondent, mere absence of prejudice is not enough, merits of the substantive case, and fairness as between the applicant and other persons in a like situation – whether the applicant was denied procedural fairness by the Tribunal at first instance
List of Legislation: ACT Civil and Administrative Tribunal Act 2008, s.82
Legislation Act 2001, s.151C
Health Practitioner Regulation National Law (ACT), s.289
List of Regulations: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2), Rules 14, 21, 22 and 24
Health Practitioner Regulation National Law (ACT) (Transitional Provisions) Regulation 2010, regulation 4
List of cases: ACT Medical Board of the Medical Board of Australia & Newcombe (Occupational Discipline) [2012] ACAT 43
Brisbane South Regional Health Authority v Taylor
(1996) 186 CLR 541Dickinson v Comcare (1998) 52 ALD 86
Gallo v Dawson (1990) 93 ALR 479
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Kasupene v Minister for Immigration & Citizenship [2008]
FCA 1609Manildra Flour Mills Pty Ltd v The National Union of Workers (2012) FCA 1010
Nais v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470
Re Minister for Immigration and Multicultural Affairs, ex parte Lam (2003) 195 ALR 502Thomas v Driat P/L [2012] NSWCA 266
Tribunal: Ms E. Symons – Presidential Member
Date of Orders: 20 March 2013
Date of Reasons for Decision: 20 March 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 12/50
BETWEEN:
RAYMOND LEONARD GEORGE NEWCOMBE
Appellant
AND:
ACT MEDICAL BOARD OF THE MEDICAL BOARD OF AUSTRALIA
Respondent
TRIBUNAL: Ms E. Symons – Presidential Member
DATE: 20 March 2013
ORDER
The application for leave to appeal out of time is dismissed.
Liberty to relist in relation to costs.
………………………………..
Ms E. Symons
Presidential Member
REASONS FOR DECISION
Background
The background facts relevant to this application are not in dispute. The Tribunal adopts and sets out these facts from the respondent’s submissions.
The proceedings the subject of this application were heard by the Tribunal at first instance on 2,3,4,7 and 8 September 2009.
A decision was given on 28 June 2012 that included orders and a short statement of the findings made by the Tribunal.
Reasons were requested the next day by the solicitors for the Board (the respondent in the current proceedings).
On 7 July 2012, Dr Newcombe, the applicant in the current proceedings, requested reasons and requested information about the period for appeal.
On 12 July 2012, a Deputy Registrar of the Tribunal advised Dr Newcombe of the 28 day time period for appeal from the date of the decision.
On 12 July 2012, the then solicitors for Dr Newcombe, King & Wood Mallesons, wrote to the Tribunal, noted the decision, requested reasons and said an appeal was being considered.
On 2 October 2012 the original Tribunal published the reasons.[1]
[1] ACT Medical Board of the Medical Board of Australia & Newcombe (Occupational Discipline) [2012] ACAT 43
On 29 October 2012, the solicitors for Dr Newcombe, Minter Ellison, filed an application to appeal.
On 29 October 2012, the Tribunal wrote to Minter Ellison advising that Dr Newcombe’s appeal was out of time and that an application should be made for leave to appeal out of time.
By letter dated 31 October 2012 Minter Ellison wrote to the Tribunal, making a written application for leave to appeal out of time.
The respondent’s solicitors, HWL Ebsworth, informed the Tribunal by letter dated 2 November 2012 that they were instructed to contest Dr Newcombe’s application for leave to appeal out of time and contest any appeal.
The hearing of the application for leave to appeal out of time was held on 22 November 2012. Mr Clynes of Counsel appeared for Dr Newcombe. Mr Moloney of Counsel appeared for the respondent.
At the conclusion of the hearing the Tribunal (that is, the Appeal Tribunal) ordered that the appellant file and serve written submissions in reply to the respondent’s oral submissions within 21 days; the respondent file and serve any supplementary submission by close of business 31 January 2013 and granted liberty to apply. The Tribunal reserved its decision.
The Law
Rule 14(1) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (ACT) (the Rules) provides:
14. Notice of appeal—time for filing
(1) A notice of appeal to the tribunal must be filed in the tribunal not
later than 28 days after the day the decision is made, or any further
time the tribunal allows.
Note An application for further time may be made before or after the 28-day
period (see Legislation Act, s 151C).
(2) An application for further time must be accompanied by a written
statement showing—
(a) the nature of the case in summary form; and
(b) each question involved; and
(c) the reasons why the extension of time should be given.
Rule 22 of the Rules provides:
22. Application for leave to appeal out of time
(1) This rule applies if a person wants to appeal from a decision of the
tribunal out of time.
(2) The person must apply to the tribunal for leave to appeal.
(3) The application for leave to appeal must be accompanied by—
(a) a written statement showing—
(i) the nature of the case; and
(ii) the questions involved; and
(iii) the reasons why leave should be given; and
(b) the draft notice of appeal.
(4) If the applicant wants to present the applicant’s case for leave in
writing, the application must state that the applicant wants to do so.
Rule 24 of the Rules provides:
24. Time for filing etc respondent’s affidavits for leave to
appeal out of time
If a respondent to an application for leave to appeal out of time
wants to present evidence, the respondent must file the respondent’s
written statements not later than 14 days after the day the
application is given to the respondent.
Section 151C of the Legislation Act 2001 states:
151C. Power to extend time
(1) This section applies if, under an Act or statutory instrument—
(a) something must or may be done on a particular day or within a
particular period of time; but
(b) a court or other entity has power to extend the time (the
relevant time) for doing the thing.
(2) A person may apply to the court or other entity for the relevant time
to be extended even though the relevant time has ended.
(3) The court or other entity may extend the relevant time even though
the relevant time has ended.
(4) This section is a determinative provision.
Note See s 5 for the meaning of determinative provisions, and s 6 for their
displacement.
(5) This section applies only to an applicable law or applicable
provision.
(6) In this section:
applicable law means an Act enacted, or statutory instrument made,
after 1 January 2006.
applicable provision means a provision inserted after
1 January 2006 into an Act or statutory instrument that is not an
applicable law.
inserted, for a provision, includes inserted in substitution for another provision
Preliminary Issues
The applicant submitted[2], having sought leave to appeal out of time, that Rule 24 of the Rules required the respondent to such an application to file evidence on which it proposes to rely. The applicant further submitted that the respondent had not complied with Rule 24; and it did not notify of its proposed reliance on the documents which became exhibits R1 and R2 in the hearing on 22 November 2012, being the email from Dr Newcombe to the Tribunal dated 7 July 2012 and the email from the Tribunal to Dr Newcombe dated 12 July 2012. Nor, apparently did it notify the applicant of its proposed reliance on its closing submissions originally filed on or about 23 September 2009.
[2] Submissions lodged on 13 December 2012, paragraphs 1-2
Dr Newcombe did not appear at the hearing on 22 November 2012. The applicant relied on the ‘breaches’ in the previous paragraph to seek leave to file a further affidavit sworn by Dr Newcombe on 12 December 2012, after the hearing, which it was submitted, addressed the issues raised in the documents referred to in the previous paragraph. The applicant also sought leave to file a report from Mr Tom Sutton, of Sutton and Williams Psychology Services, dated 10 December 2012.
The Orders made at the conclusion of the hearing on 22 November 2012 provided for the applicant to file and serve submissions in reply and for the respondent to file and serve any supplementary submissions. No leave was either sought or granted to file further evidence.
The respondent opposed the applicant’s solicitor’s application. The respondent submitted that the purported filing and service of the opinion of Mr Sutton and the Affidavit of Dr Newcombe sworn on 12 December 2012 was redolent with his past practice in his manner of handling these matters – that is, that he deals with matters on an occasion he determines and not on the proper occasion when he ought to advance his case. The respondent submitted “None of the material he seeks to adduce under cover of a right to serve Reply submissions was filed in support of his application when first filed, as it ought and could have been filed.”[3] The Tribunal concurs.
[3] Respondent’s submissions lodged on 31 January 2013, para 3
Further, the Tribunal noted that the report from Mr Sutton commenced with the statement “I first saw Dr Newcombe in January 2005…” and referred to reports subsequently written in 2006, 2007 and 2008. This report appeared to relate to the reasons for Dr Newcombe’s “not appearing before the Board in 2009”[4]. No reason was proffered as to why this report was not obtained and provided to the Tribunal before 22 November 2012. If it was thought to be relevant it could have been so provided.
[4] Final paragraph of the Report
The respondent called for the applicant’s conduct in seeking leave to file this further evidence to be strongly censured.
The Tribunal has weighed up this evidence and the respondent’s submissions in relation to its admissibility and also given due consideration to the history of this matter. Given the history and noting that the respondent has had the right of reply to this evidence in its final submissions, the Tribunal, albeit with some reservation, has decided to grant the applicant leave to file the affidavit of Dr Newcombe dated 12 December 2012 and the report from Mr Tom Sutton dated 10 December 2012. They will be identified as exhibits A1 and A2. In granting this leave the Tribunal concurs with the respondent’s statements in the previous paragraph. The applicant’s conduct is deserving of such censure.
Consideration of Application for Leave to Appeal Out of Time
The power granted to the Tribunal is a discretionary power. Pursuant to Rule 14(2)(c) of the Rules an application to extend time must be accompanied by a statement of reasons as to why the extension of time should be given.
The applicant’s solicitors, Minter Ellison, in a letter to the Tribunal dated 31 October 2012, attached a copy of the proposed application for appeal and set out the following details (words in italics are extracts from the application for appeal):
(i)Nature of the case – “Dr Newcombe seeks to appeal from the occupational discipline decision of the Tribunal in the matter of the ACT Medical Board v Dr Newcombe….. in relation to…. patient ‘L’.
(ii)Questions involved –
“(a) whether the delay between the hearing in September 2009 and
providing a decision on 28 June 2012 with reasons delivered on 2
October 2012, resulted in the Tribunal failing to afford Dr Newcombe
procedural fairness;
(b) whether the Tribunal failed to afford Dr Newcombe with procedural
fairness in respect of its finding that he used large rongeurs which
were inappropriate for the medical procedure being conducted;
(c) whether the Tribunal erred in finding that Dr Newcombe
inappropriately used large rongeurs when in fact the instruments he
used were smaller Hunt’s Tumour Forceps;
(d) whether the Tribunal erred in finding that Dr Newcombe had taken
a biopsy from the floor of the fourth ventricle of patient L’s brain;
(e) whether the Tribunal erred in finding that Dr Newcombe did not
recognize that her post-operative symptoms and developing disabilities
were unusual or that they should be further assessed; and
(f) whether the Tribunal erred in finding that Dr Newcombe failed to
arrange appropriate review and assessment of patient L’s post-
operative disabilities.”
(iii) The reasons why leave should be given, (which the Tribunal now sets out in full):
“3.1 The ACAT handed down orders in this matter on 28 June 2012.
However, the reasons for the decision were not handed down until
2 October 2012 and the reasons were received by us via post on 4
October 2012.3.2 It was not possible to prepare an appeal on Dr Newcombe’s behalf
until those reasons for decision were received and considered.
There was then a need to meet with Dr Newcombe and take
instructions from him on complicated medical matters. Once this process had concluded and senior counsel’s advice had been received, Dr Newcombe was then in a position to make an informed decision on whether to proceed with an appeal. He has decided to appeal the findings in relation to one patient only.3.3 There therefore has been no significant delay in making the
application to appeal and, it is submitted , no prejudice suffered by the Medical Board as a result of lodging the application to appeal by 29 October 2012.”
Counsel for the respondent, in written submissions handed to the Tribunal during the hearing, questioned the adequacy of the applicant’s ‘Statement of Reasons’ describing the document as “manifestly inadequate for the required purpose. It gives no reasons, just mere assertion of propositions sought to be agitated.”[5] The Tribunal will return to this later in the decision.
[5] At paragraph 13
At the commencement of the hearing Counsel for the applicant informed the Tribunal that the applicant’s primary ground was: “There will be an injustice, a potential injustice and a significant injustice if Dr Newcombe is not given an opportunity to be afforded procedural fairness.”[6] He identified the procedural unfairness as (a) the three year delay in delivering the decision submitting such a delay can be a vitiating factor in terms of whether a party has received procedural fairness; (b) the failure to observe the very fundamental right of any litigant in terms of procedural fairness to know the allegations that have been levelled against that litigant,[7] and (c) the applicant not knowing that the Medical Board had shifted its case during the proceedings without alerting him to the fact.[8]
[6] Transcript, p. 5 lines 12-14
[7] Transcript, pp. 7, lines 44-45, p.8 line 1
[8] Transcript, p. 8 lines 2-4
Counsel then identified the secondary ground as the Tribunal had erred in finding the applicant had inappropriately used large rongeurs when in fact he had used smaller Hunt’s Tumour Forceps[9]; and that the applicant’s inability to respond on the issue of the large rongeurs had infected the findings in terms of taking the biopsy from the floor of the fourth ventricle and not, in consequence perhaps, recognising the post-operative symptoms and arranging appropriate review and post-operative disabilities.[10]
[9] Transcript, p. 8 lines 12-14
[10] Transcript, p. 8 lines 15-19
Counsel for the applicant told the Tribunal that
“The applicant wants an opportunity to meet what he says was an erroneous path and erroneous conclusions that the Tribunal followed and reached, and he would want an opportunity to explore that on the basis of a very fundamental deprivation of procedural fairness.”[11]
[11] T 10 L41-44
It is common ground that the principles to be applied in a case such as this are fairly summarized in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[12] (Hunter Valley Developments).
[12] (1984) 3 FCR 344
In Hunter Valley Developments Wilcox J stated [13]
“Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. The ‘prescribed period’ of twenty-eight days is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained…”
[13] Pages 348-349
Wilcox J summarized a number of non- exhaustive criteria which he said help the court to decide whether or not to exercise its discretion to grant an extension of time, namely :
·The court will not grant the application unless satisfied that it is appropriate to do so. The applicant must show “an acceptable explanation of the delay” and also that it is “fair and equitable in the circumstances” to extend the time limit.
·Whether any action has been taken by the applicant apart from the application to extend time.
·Whether extending time would cause any prejudice to the respondent.
·The mere absence of prejudice is not enough to justify the grant of an extension.
·The merits of the substantive case.
·Considerations of fairness as between the applicant and other persons in a like position.
The Tribunal will consider each of the above criteria and the material before the Tribunal in determining whether or not to exercise its discretion to grant the applicant leave.
Acceptable explanation of the delay
The applicant’s explanation of the delay is described as ‘straightforward’[14]. The submissions, from Mr R Crowe SC, state:
“It is clear that Mr Topfer formed the view that it was not appropriate for a “holding” appeal to be filed in advance of the availability of the reasons for decision; see affidavit of Dr Newcombe sworn on the 12th day of December 2012, paragraph 15. Dr Newcombe acted on that opinion. It may be that as a matter of strict technicality Mr Topfer’s opinion was not correct. However, it would be harsh and unfair to penalize the client – Dr Newcombe, because he acted upon the advice given by his then lawyer.”
[14] Applicant’s submissions lodged on 13 December 2012, paragraph 3
As the result of the filing of Dr Newcombe’s most recent affidavit (Exhibit A1), the Tribunal has had the benefit of sworn evidence for his failure to file a notice of appeal in time or to file a ‘holding appeal’. He was aware from his own correspondence with the Tribunal in early July 2012, that the appeal time was 28 days from the date of the decision and that he could file a holding appeal. Notwithstanding his knowledge of his rights, he failed to exercise them. His explanation of the delay appears to be that his then solicitor, being aware that the Tribunal had the power to extend time,[15] advised that an appeal not be lodged at that time; instead he would wait until it was seen upon what grounds the Tribunal had formed its decision.
[15] Affidavit of RLG Newcombe, sworn on 12 December 2012, paragraph 15, Annexure F, email John Topfer to Joe Lizzio 12 July 2012
The respondent submitted that, on a matter of such seriousness, the applicant should have acted in accordance with the Rules, as advised to him by the Tribunal.
The question for the Tribunal is whether the explanation provided is acceptable. In determining this the Tribunal is aware that even if the explanation for delay is found to be acceptable, the Tribunal still needs to consider whether it is proper to grant the application for extension of time.
The Tribunal noted that Dr Newcombe, himself, sought to clarify directly with the Tribunal whether there was a time limit and he now attests to the fact that he was notified by the Tribunal within the 28 day appeal period that he could file a holding appeal. It was also clear from Dr Newcombe’s email that he knew that his solicitor had retired; he said he was yet to instruct someone to represent him.
On the one hand, given the seriousness of this matter, the Tribunal would have expected that Dr Newcombe would have instructed his new solicitor to file a holding appeal, in accordance with the Tribunal’s Rules and the emailed advice he had already received from the Tribunal. On the other hand, the Tribunal cannot ignore that he had obtained his then solicitor’s advice that it was not possible to file an appeal until the detailed reasons were handed down. He relied on that advice.
Counsel for the applicant submitted that it would be harsh and unfair to penalize Dr Newcombe because he acted on the advice given by his then solicitor.
Having considered all of the available evidence, the Tribunal is satisfied that the applicant was entitled to seek advice from his solicitor who was familiar with the matter and to act on that advice. The Tribunal notes that Dr Newcombe appears to have sought his solicitor’s advice on the same day he received the email from the Tribunal, 12 July 2012, and that the email from his solicitor to him setting out that advice is also dated 12 July 2012. In these circumstances the Tribunal is satisfied that the applicant had an acceptable reason for the delay in filing his application for appeal.
Whether any action has been taken by the applicant apart from the application to extend time
The Tribunal has referred to, above, the email from Dr Newcombe to the Tribunal dated 7 July 2012 and the email from the applicant’s solicitor to the Tribunal dated 12 July 2012.
The Tribunal is satisfied that the applicant, through his solicitors, and prior to applying to extend time, had taken the action referred to in the preceding paragraph.
Whether extending time would cause any prejudice to the respondent
The respondent is the ACT Medical Board. Counsel for the respondent submitted, should leave be granted to the applicant, the Board will incur large costs. The applicant described this claim as a ‘rhetorical flourish’ and pointed out that no evidence had been provided. However, inevitably, if the applicant was granted leave and the appeal was heard, the respondent would incur costs in being represented at the appeal hearing.
The respondent also argued that Patient L might be put to further inconvenience and suffering and thereby suffer detriment if leave was granted. Again, the applicant asserted that, firstly, there was no evidence to support this assertion and, secondly, Patient L’s inconvenience and suffering could be minimized on appeal by the decision maker limiting the evidence from Patient L to that already admitted before the Tribunal at first instance[16]. The Tribunal notes that this is a possibility. However, it is also possible that the appeal, if leave is granted, could be heard as a new application.[17]
[16] Applicant’s submissions of 13 December 2012, paragraph 8
[17] s.82(a), ACT Civil and Administrative Act 2008
The respondent’s Counsel reminded the Tribunal that these events occurred in 2001. The operative procedure was performed 12 years ago in February 2001. He submitted that any further hearing of this matter will be the traversing of very old matters.[18] Presumptive prejudice always exists with the effluxion of time. Memories fade.
[18] Respondent’s submissions of 22 November 2012, paragraph 32
The respondent’s Counsel referred to Brisbane South Regional Health Authority v Taylor,[19] an authority usually employed in the setting of extension of time applications, where McHugh J said at 551:
“The discretion to extend time must be exercised in the context of rationales of extension of limitation periods. .... The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates.”[20] Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo[21], "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose.”
[19] 1996 186 CLR 541
[20] R v Lawrence [1982] AC 510 at 517 per Lord Hailsham of St Marylebone LC.
[21] (1972) 407 US 514 at 532
Dr Newcombe ceased practising as a neurosurgeon in March 2002. He ceased doing part-time medico-legal work in 2005.[22] It is true that the public benefit is protected in that respect.[23]
[22] RLG Newcombe Affidavit of 21 November 2012, Tab 3. Letter from Mallesons Stephen Jaques to ACT Health Professions Tribunal 27 November 2008
[23] Respondent’s submissions of 22 November 2012, paragraph 34
As noted by Wilcox J in Hunter Valley Developments, the mere absence of prejudice is not enough to justify an extension of time, however, in this matter, the Tribunal, having considered all of the available evidence in relation to prejudice, is for the above reasons, satisfied that an extension of time would cause prejudice to the respondent.
The merits of the substantive case
In considering the merits of Dr Newcombe’s appeal, the Tribunal is cognisant of the authorities which clearly state that the threshold is whether the applicant has arguable grounds of appeal.[24]
[24] Thomas v Driat P/L [2012] NSWCA 266 at para.11; Gallo v Dawson (1990) 93 ALR 479, p.481
The Tribunal has set out, in paragraph 27(ii) above, the questions of fact or law relied on by the applicant. The Tribunal has considered these grounds sequentially.
In relation to paragraph 27(ii)(a) the applicant submitted[25] that the relevant question is “whether it is arguable that the three year delay in the Tribunal’s decision led to a real risk that its capacity to assess the allegations and evidence in support of those allegations was impaired.” The respondent drew the Tribunal’s attention to the lack of specificity in the applicant’s assertion.
[25] Submissions of 13 December 2012, paragraph 13
The applicant appeared to support this assertion by alleging that the Tribunal at first instance erred in finding that Dr Newcombe used the instrument in Exhibit 1. The applicant submitted[26] this demonstrated the insidious effect of the original Tribunal’s extraordinary delay and contended that it was inconceivable, if the Tribunal had addressed the instrument issue with due immediacy, that it would not have appreciated that there was a likelihood that Exhibit 1 was not the instrument Dr Newcombe had used. In his recent affidavits Dr Newcombe attested that the instrument he used was the Hunt’s Tumour Forceps and not the instrument in Exhibit 1.
[26] Submissions of 13 December 2012, paragraph 13
It is the applicant’s case that the very fact of the delay itself rendered the decision in relation to Patient L flawed for want of procedural fairness. However, while the delay was regrettable, the Tribunal noted that the applicant did not challenge the procedure, decisions, and adverse findings of the Tribunal at first instance which were made at the same time in relation to Patient S and Patient O.
The Tribunal noted that Finn J in Dickinson v Comcare[27]stated[28] “The failure of the Senior Member to provide her reasons in the timely fashion envisaged by the AAT Act is censurable. Nonetheless an extension of time will not be granted so as to express that censure where the circumstances do not otherwise warrant the grant of such an extension.”
[27] (1998) 52 ALD 86
[28] Under The Applicable Principles, Paragraph 4
The respondent submitted that to now put to the Tribunal that an alleged error about the surgical instrument used was induced by the delay, is manifestly in error. The respondent also submitted if there was such an error, then it existed at the time of the hearing when Exhibit 1 was tendered as an example of the instrument used and delay had nothing to do with it.
The respondent further submitted[29] that, while the delay was present, the consequence of it was not productive of procedural unfairness in the relevant respect such as to warrant review. This was because Dr Newcombe was given notice of the allegations, provided with all the material for the hearing, and given every opportunity to meet the allegations but he chose not to. Further, Dr Newcombe gave no evidence in any substantial way; there was no evidence from him that was capable of rejection or acceptance and the decision of the Tribunal at first instance on 28 June 2012 did not rely on findings of credit; rather it turned on the analysis of records, pathology reports, scans and assessment of patient L and the opinion of experts.
[29] Submissions of 22 November 2012, paragraph 36
The respondent also submitted that the case relied on by the applicant, Nais v Minister for Immigration and Multicultural and Indigenous Affairs [30](“Nais”) was distinguishable from the present case as it turned on the assessment of credit and there was no credibility issue in the present case. In the present case, the respondent’s submission was that the effluxion of time has not rendered the decision of 28 June 2012 unsound.
[30] (2005) 228 CLR 470
Counsel for the applicant acknowledged that the error relied on in the matter currently before the Tribunal, unlike the error relied on in Nais, was not one which turned on the impact of any delay in the assessment of a witness’ credibility and demeanour. [31]
[31] Transcript, 22 November 2012, page 31, line 5
The applicant relied on the comments by Justice Kirby in Nais at page 106, namely:
“…The concern of a court in exercising its power of judicial review and evaluating the complaint of unfairness, is with the procedure followed by the Tribunal. The concern is not, as such, with the decision ultimately reached. For this reason, whether or not the Tribunal was in fact disabled from assessing the appellant’s evidence, or whether or not the ultimate outcome was in fact affected, is not determinative. It can reasonably be inferred from the serious delay in this case that there was a real risk that the Tribunal’s capacity to assess the appellant’s evidence was impaired. As such, the decision was flawed for want of procedural fairness.”
and invited the Tribunal to find that “the very fact of the delay itself rendered the decision in relation to patient L flawed for want of procedural fairness.”[32]
[32] Respondent’s submissions of 13 December 2012, paragraph 14.
The respondent submitted[33] that the Nais decision must be very carefully considered and that the following must be remembered:
·Circumstances where delay will vitiate proceedings are rare (Gleeson CJ at [5]).
·It is important to realize that a Court of Appeal or appellate Tribunal may conclude that delay contributed to error or made the decision unsafe, but the ground of appellate intervention is the error, or infirmity of the decision, not the delay itself. Dr Newcombe’s submissions fall into misunderstanding the distinction which Gleeson CJ (with respect) so eloquently put.
·The critical question that must be determined is whether there is a real and substantial risk that a Tribunal, by reason of delay, denied itself the capacity to assess the evidence adduced (Gleeson CG [10]).
·The assessment has many faces. In Nais what was critical was the assessment of demeanour and credit specifically or of an individual generally. The Tribunal’s failure in the case to be able to satisfactorily assess those matters led to the finding of a denial of procedural fairness (Gleeson CJ [9] & [10]; Callinan and Heydon JJ [169] – [170]; [172]).
[33] Respondent’s submissions of 31 January 2013, paragraph 25.
Counsel for the respondent referred to the burden the applicant has to assume in suggesting that there is a want of procedural fairness because the decision took so long, namely that there has not been a serious analysis of all of the relevant facts to come to the conclusion arrived at. Counsel then submitted that that was not what happened here; in this case the fourth floor of the ventricle was pierced and this caused terrible disabilities; and Dr Newcombe should not have done that.
Counsel posed the question – Where can it be said that the delay in the period of time has meant that the analysis of that question has been disabled in the way suggested by Nais?[34] and answered the question by saying it cannot. He pointed out that a case must have “a hook”, such as “credibility” in Nais, to say why there has been a disablement.
[34] Transcript, p. 61 lines 11-14
Counsel then took the Tribunal to the statements by Cowdroy J in the recent decision of Manildra Flour Mills Pty Ltd v The National Union of Workers[35] and submitted that “Cowdroy J took the view (at paragraph 40) that the delay in that case did not amount to a breach of procedural fairness that would have affected the outcome of the decision …. because the credibility issues that had to be determined weren’t so enlivened. There was access to transcript, documentary evidence, so on and so forth.”[36]
[35] (2012) FCA 1010
[36] Transcript, p. 61 lines 24-33
Having considered all of the evidence before it and the critical question posed in Nais by Gleeson CJ [10], the Tribunal is not satisfied that the applicant has demonstrated an arguable case that by reason of the delay, there was a real or substantial risk that the Tribunal at first instance denied itself the capacity to assess the evidence adduced; there was certainly no credibility issue to be determined. The Tribunal at first instance had access to transcript and documentary evidence. As Gleeson CJ said at [5] in Nais – “The circumstances in which delay of itself will vitiate proceedings or a decision are rare.”
In relation to paragraph 27(ii)(b) – procedural fairness; the applicant asserted that at no stage before the proceedings commenced was any hint given that an allegation would be made that Dr Newcombe used the wrong instrument. [37] The rules of procedural fairness required that, whether or not he was participating in the hearing, the Board needed to communicate to Dr Newcombe precisely what was being alleged. As an absolute minimum, the applicant submitted that a photograph of Exhibit “I” should have been provided to him together with notice that it was asserted that this was the instrument he used.
[37] Transcript, 22 November 2012, page 8
The respondent referred to and summarised Allegations 64 to 70[38] made against Dr Newcombe as ‘the operation performed involved taking a biopsy from the fourth ventricle, which should not have happened and that by doing so the patient suffered significant disabilities’.[39]
[38] Annexure 4, p.11-12 Affidavit of RLG Newcombe of 21 November 2012
[39] Submissions of 31 January 2013, paragraph 38 & Annexure 1, p.11-12
The respondent’s Counsel put to the Tribunal [40] the fact is that the applicant, himself, or his solicitors had received the final submissions ordered by the Tribunal and it may be accepted that he says he used different forceps but that’s not the point. The point is - what did the applicant do about his concern, that he now has raised, that the Tribunal moved forward on what he says is an erroneous assumption. Counsel reminded the Tribunal that the first the respondent knew of the applicant’s present position was at 5.00 pm on 21 November 2012, the night before the Tribunal hearing, when he served his Affidavit sworn that day.
[40] T 46, last para
The applicant’s Counsel objected to the Tribunal taking into account the final submissions provided on 23 September 2009; stating that the respondent had not given the applicant any notice of these documents as required under Rule 24. The Tribunal was satisfied that the documents had been provided to the applicant’s then solicitors during the 2009 hearing and allowed them.
The respondent submitted that the reason why this problem has arisen, if it be a problem, is that it comes out of the mouth of Dr Newcombe – it comes from his submission in November 2008.[41]The respondent then submitted that it cannot be said that there is, in substance, a lack of procedural fairness when the very origin of the instrument that was said to be used before the Tribunal is that which was suggested by Dr Newcombe.
[41]Book 1 page 56-10
The respondent submitted that the critical part of the judgment at paragraph 86[42] was the finding of the Tribunal at first instance, in response to Allegations 64 to 70, that the patient has significant neurological deficits and associated physical disabilities that resulted from the damage done when the respondent (now applicant) biopsied the floor of the fourth ventricle of her brain.[43] The Tribunal noted that in its decision the Tribunal at first instance further stated “This finding is strongly supported by the evidence of Professor Lance and Associate Professor Watson. Their evidence is persuasive and there is no expert evidence to the contrary.”[44]
[42]ACT Medical Board of the Medical Board of Australia & Newcombe (Occupational
Discipline) [2012] ACAT 43
[43] Submissions of 31 January 2013, paragraph 39
[44]ACT Medical Board of the Medical Board of Australia & Newcombe (Occupational
Discipline) [2012] ACAT 43 , Paragraph 86,
The respondent then submitted that the Tribunal’s finding that Dr Newcombe used “instruments that were inappropriate for the procedure being conducted”[45] was subsidiary to the principal finding which does not affect its validity and does not control the integrity of the outcome as expressed at paragraph 86 of the judgment.
[45] Reasons for Decision 2 October 2012, Paragraph 88(ii)
Notwithstanding the respondent’s assertion that the finding that Dr Newcombe biopsied the floor of the fourth ventricle was capable of standing without the finding in relation to Exhibit “I”, the applicant submitted that it was for the Tribunal to determine whether it is arguable that the findings that Dr Newcombe used the instrument in Exhibit “I” caused the Tribunal, at first instance, to err in concluding he biopsied the floor of the fourth ventricle.
The applicant urged the Tribunal to conclude that a “finding that Dr Newcombe had used the Hunt’s Tumour Forceps might have produced a different conclusion as to whether the injury to the floor of the fourth ventricle was caused by a biopsy”[46], adding that Dr Newcombe had contended at first instance that the damage was caused by diathermy to prevent sudden bleeding. The respondent asked that no weight whatsoever be given to this ‘speculation’.[47]
[46] Submissions of 13 December 2012, paragraph 21
[47] Submissions of 31 January 2013, paragraph 53
This Tribunal noted that in paragraph 80 of its Reasons for Decision[48] the Tribunal at first instance set out the “considerable evidence” it had available to it, namely, the operation report and anaesthetist’s record; the various statements made by Dr Newcombe about the operation; statements by Dr Abraszko about the operation; expert opinions expressed by Dr Roche, Professor Teddy, Professor Lance, Associate Professor Watson, Associate Professor Atkinson and Professor Blumbergs as well as a pathology report and affidavit prepared by Associate Professor Jain.
[48]ACT Medical Board of the Medical Board of Australia & Newcombe (Occupational
Discipline) [2012] ACAT 43
In considering the applicant’s appeal ground that he was denied procedural fairness because he was not put on notice that it would be alleged that he used a particular instrument, the Tribunal must also consider the following matters raised by the respondent:
(a) Dr Newcombe had stated to the contrary on 27 November 2008 and had always stated the biopsies were performed in the standard microsurgical way with 6 mm cup forceps;
(b) there was a submission from the pathology report that the biopsies were consistent with the taking by an instrument 6 mm across[49];
(c) Dr Teddy was questioned about Hunt’s Tumour Forceps[50] so the Tribunal at first instance was taken to the possibility that the instrument Dr Newcombe used might be referred to by himself by this name;
(d) Dr Newcombe’s solicitors were given the Board’s submissions on 23 September 2009 which included reference to the inappropriateness of the instrument which Dr Newcombe now says was an error. Dr Newcombe did not correct this error; and
(e) Dr Newcombe’s late provision of the material concerning which forceps were used precludes the assertion of specific prejudice.
[49] Transcript, p. 52
[50] Transcript, p.54, line 41
The respondent submitted[51] to the Tribunal that Dr Newcombe’s conduct of the litigation is a relevant consideration and highlighted that:
·by letter dated 27 November 2008 to the Health Professions Tribunal he advised that “he will not either by himself or through counsel appear or take any further part in the Tribunal proceedings because he believes that to continue to participate will have further major impacts on his health and his family and will not serve any useful purpose for the future of neurosurgery in the ACT.”;
·Dr Newcombe did not participate in the hearing in September 2009 for the same reasons and his solicitor, Mr Topfer, attended on the first day and gave the same explanation;[52]
·at all material times Dr Newcombe has had legal representation;
·at all material times, Dr Newcombe may well be taken to have been informed of his rights;
·Dr Newcombe received the Board’s closing submissions and saw them;[53] and
·Dr Newcombe had every opportunity to fully participate in the hearing. He declined to do so – knowingly.
[51] Submissions, of 22 November 2012, paragraphs 18 - 22
[52] Transcript, 2 September 2009, p. 19
[53] Newcombe affidavit of 12 December 2012 at [14]
In the Reasons for Appeal, the applicant stated that he wishes to tender evidence about the instrument he actually used in the course of the operation, as well as evidence about how the damage was probably caused to the floor of the left ventricle of Patient ‘L’s’ brain and about his post-operative care of her, to establish that injury to the floor of the fourth ventricle of her brain was not caused negligently and that his post-operative care of her was appropriate in the circumstances.
However, the Tribunal noted that Dr Newcombe in his most recent Affidavit at paragraph 14 stated:
“I have no actual memory of reading the submissions [the Board’s Closing Submissions]. However I believe that I did see them in the weeks after the hearing. Having re-read them I accept that I must have been aware that there was some confusion about the instrument which I used. ..... However because I had no clear information as to the instrument which the Board was alleging I had used (that is, the large rongeurs which became exhibit “I”) I did not appreciate at that time the major and fundamental error which had been made during the course of the hearing. In any event I believed that the time for making submissions about the matter had concluded.”
The reality is that Dr Newcombe did nothing, even though he has attested that he must have been aware at the time that there was some confusion about the instrument he used.
The respondent submitted[54] that “this is not an inquiry into the forceps that were used or whether the forceps that were used, as tendered in the proceedings, were used. Although that’s part of the overall matrix. This inquiry in respect of patient “L” turned, in large measure, upon whether Dr Newcombe engaged in proper practice by piercing the floor of the fourth ventricle. That’s the meat and substance of this.”
[54] Transcript,, p. 53, 1st paragraph
It is clear that the Tribunal, at first instance, was satisfied[55], comfortably so, that the applicant lost anatomical awareness, that he was confused about what he was looking at and about what part of the brain he had entered, and that he should have ceased the operation then without taking the biopsies. He did not do that; the Tribunal found, at first instance, he biopsied and coagulated the floor of the fourth ventricle of Patient L’s brain in error. This was the primary finding. While that Tribunal was also satisfied at paragraph 88(ii) of its decision that the applicant ‘used instruments that were inappropriate for the procedure being conducted’ this Tribunal was not satisfied that the applicant has established an arguable case that this finding caused or contributed to the Tribunal at first instance ‘erring’ in concluding he biopsied the floor of the fourth ventricle. As stated in paragraph 77 above, the Tribunal, at first instance, had considerable evidence available to it. The primary finding stands on its own. The Tribunal concurs with the Respondent’s submission in paragraph 74 above.
[55]ACT Medical Board of the Medical Board of Australia & Newcombe (Occupational
Discipline) [2012] ACAT 43, paragraphs 81 and 82
It appears to this Tribunal that Dr Newcombe, having declined to take any part in the hearing and not responding, despite ample opportunity, to all of the matters at the appropriate time; is seeking to belatedly absolve himself from the risks associated with his earlier decision not to participate or respond by now suggesting that the failure to specifically allege that the wrong instrument was used has denied him procedural fairness.
The Tribunal, having considered all of the matters before it, is not satisfied that the applicant has demonstrated that he has an arguable case that he was denied procedural fairness because the Board had not given him any hint that it would be alleging that he used the wrong instrument. The Tribunal is not satisfied that the conclusion urged by the applicant at paragraph 76 above is sufficient or adequate to persuade this Tribunal that the applicant has an arguable case. The Tribunal accepts the respondent’s submission that such a contention is speculation.
The respondent asserts and the Tribunal agrees that Dr Newcombe had every opportunity to respond to all of these matters, including that the instrument used was inappropriate, and that he did not take up any of these opportunities. He cannot now be heard to complain.
In relation to paragraph 27(ii)(c) – the applicant submitted that it was significant that no evidence was led from any person involved in the operation that Exhibit “I” had been used.
The respondent submitted that this ground was without merit; there was no proper basis to grant leave and Dr Newcombe ought not to be permitted to now contradict that which he had earlier stated, particularly when he has had every opportunity to put the case he now states.
The Tribunal refers to and repeats the matters in relation to paragraph 27(ii)(b) above. The Tribunal was satisfied that the inquiry was about what took place when Dr Newcombe operated on patient L. Inevitably, this required the Tribunal, at first instance, to consider his procedure. Allegation 66 was that he confused patient L’s fourth ventricle for a second cyst when taking the biopsy. He had to be on notice that the whole inquiry was about all elements of that procedure. He was afforded a reasonable opportunity to present his case. Notwithstanding this, he chose not to participate. The Tribunal does not have to ensure that a party takes best advantage of that opportunity.[56]
[56] Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609 at [14] per Flick J
In relation to paragraph 27(ii)(d) – the applicant reiterated the submission that it was clear that the conclusion by the Tribunal that Exhibit “I” was used, played a significant part in the conclusion reached as to what caused the damage to patient L’s fourth ventricle.
The applicant submitted that it was clearly arguable that it would be open to the decision maker to come to a different conclusion if it accepted that the operation had been carried out with the correct instruments. In the Reasons for Appeal, under “3. Additional Evidence” the applicant states that he wishes to tender evidence as to the instrument he actually used in the course of the operation; how the damage was probably caused to the fourth ventricle of Patient L’s brain and his post-operative care of her to establish that the injury to the floor of the fourth ventricle was not caused negligently and that his post-operative care was adequate in the circumstances.
The respondent referred to the evidentiary basis in the Board’s closing submissions dated 22 September 2009 (paragraphs 120 -126) upon which it may be concluded that the biopsy was taken from the floor of the left ventricle. The respondent described this evidence as ‘overwhelming’ and supporting the conclusion expressed at paragraph 81 of the reasons of the Tribunal at first instance.
The respondent pointed out that, apart from a one line assertion, which the respondent described as speculation Dr Newcombe had not advanced a case to the contrary in support of his contention that there was error in finding that the biopsy was taken from the floor of the fourth ventricle.[57]
[57] Submissions of 22 November 2012, paragraph 45.
It is for the Tribunal to determine whether, on the available material, the applicant has an arguable case. The Tribunal concurs with the respondent’s submission that the raising of a contention does not make it ‘arguable”.
The Tribunal noted that the Tribunal, at first instance, relevantly found that they were comfortably satisfied that Dr Newcombe, during the actual procedure, lost anatomical awareness, that he was confused about what he was looking at and about what part of the brain he had entered and that all of these findings were strongly supported by a consideration of the radiology and pathology reports and by the opinions of experts. At [81] the Tribunal stated “The alternative theory proposed by the respondent is not supported by the evidence.”
Having carefully weighed up all of the matters advanced by both Counsel and the material before the Tribunal, the Tribunal concurs with the submissions of the Respondent’s Counsel and cannot be satisfied that the applicant has an arguable case that the errors he alleges, namely (a) the finding that the biopsy was taken from the floor of the fourth ventricle and (b) the instruments he used were too large for what he was doing, played a significant part in the conclusion reached as to what caused the damage to patient L’s fourth ventricle.
Paragraphs 27(ii)(e) and 27(ii)(f) raised different issues from those arising from the actual performance of the surgery. The applicant submitted[58] that it was a reasonable possibility that the finding that Dr Newcombe had made such a fundamental error as to use a totally inappropriate instrument for the surgery might have affected the Tribunal’s assessment of his post-operative care. The applicant further submitted, as a matter of fairness, Dr Newcombe ought to be given the opportunity to correct the record in relation to Exhibit “I” and to revisit these issues.
[58] Submissions of 13 December 2012, paragraph 24
In contrast, the respondent submitted these suggested grounds are without merit and stated that, at Allegations 72 and 73, the applicant’s post-operative care of patient L was unambiguously raised. Paragraph 135 of the Closing Submissions set out that Dr Newcombe:
·did not disclose to the patient that there may have been an error in the surgery for two years;
·led her to believe that she would have a full discovery;
·did not accept that he may have biopsied the 4th ventricle until November 2008; and
·did not refer to neurologist assessment or neuro-radiologist review.
The respondent said “it is the case that there were no subsequent neurologists or neuro radiologist assessments and the correct diagnosis of the presenting condition was not made until August 2001.”[59]
[59] Closing Submissions, paragraphs [152] to [154],
The respondent has referred the Tribunal to the statement of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs, ex parte Lam[60] in relation fairness:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
[60] (2003) 195 ALR 502 [37]
For the reasons set out above in relation to questions raised in paragraph 27(ii) (b) – 27(ii)(d) the Tribunal is not satisfied that the applicant has demonstrated that he has an arguable case in relation to this ground. The Tribunal accepts the Respondent’s submissions in relation to these grounds. At best the applicant’s contention is relation to these grounds is speculation.
Considerations of fairness as between the applicant and other persons in a like position
The Tribunal has considered the issue of the applicant’s rights and whether they are placed in jeopardy if leave to appeal is not granted.
Counsel for the applicant submitted [61] that Dr Newcombe was an eminent consultant neurosurgeon in the twilight of his career, and the Board’s submissions placed too little weight on the consequences for him of the original Tribunal’s finding
(at paragraph 120):
“In the case of L, the contraventions are so significant as to satisfy the Tribunal that the respondent failed to meet the requirements for suitability to practice.”
and
“It is one thing to have been found to have erred in relation to the standards of practice in relation to individual episodes of treatment. It is altogether more serious to be found to have failed to meet the requirements of suitability for practice.”
[61] Submissions of 13 December 2012, paragraph 10
The respondent submitted, when considering the issue of fairness and the applicant’s submissions, that it is relevant to note that as a result of legislative changes, the Tribunal’s power for making the decision on 28 June 2012 lapsed on 1 July 2012 (Regulation 4, Health Practitioner Regulation National Law (ACT) (Transitional Provisions) Regulation 2010).
Prior to 1 July 2012 action could be taken against a person ‘previously registered’ under section 289 of the Health Practitioner Regulation National Law (ACT). Dr Newcombe’s registration ceased on 17 December 2004. From 1 July 2012, the current power to deal with such matters under section 289 only applies to registered practitioners, and is, therefore, inapplicable to Dr Newcombe as he is not registered.
The respondent urged the Tribunal to consider, should the Tribunal exercise the discretion in favour of Dr Newcombe and extend time to appeal, that this may afford him the opportunity to never be sanctioned for his conduct in the event of a finding of reviewable error. Neither the provisions of section 82 of the ACT Civil and Administrative Tribunal Act (2008) (the ACAT Act) or Rules 21(a) and (e) of the Rules) cure this difficulty.
The respondent also highlighted what it submitted would be the detriment of any grant of leave, which the Tribunal has summarized as follows:
·Dr Newcombe decided not to challenge the merits of the proceedings against him;
·he had expert advice and decided not to participate at the hearing;
·he now wishes to challenge some of the findings of a part of the whole of the facts going to the ultimate decision;
·he files very little material going to the merits;
·it is not fair and acceptable to permit Dr Newcombe to act in this way; and
·as a matter of practical justice, not only for Dr Newcombe, but for the community, if Dr Newcombe was able to run an appeal, the reality is that he may never be dealt with again concerning this matter.
The applicant submitted that:
·the above submissions place too little weight on the consequences of Tribunal finding that Dr Newcombe had failed to meet the requirements of suitability for practice in relation to patient L;
·at the heart of this case was a fundamental miscarriage of justice in relation to the assessment of the surgery carried out by Dr Newcombe on patient L;
·while it was true that it might not have occurred had he participated in the hearing that is not sufficient reason to deny him a chance to correct the record; and
·the balancing of the discretionary considerations favours extending the time for Dr Newcombe to appeal.[62]
[62] Submissions of 13 December 2012, paragraph 25
In considering the issue of fairness between the applicant and other persons in a like position, the Tribunal found the respondent’s submissions compelling. The Tribunal has particularly noted that Dr Newcombe has had every opportunity to challenge evidence and to participate in the hearing in 2009 and was appraised of the submissions relied on by the Medical Board before the Decision was made and that he has filed very little material going to the merits of his application before this Tribunal.
The Tribunal has to balance Dr Newcombe’s rights and the rights of others in a like position. The Tribunal is also cognizant of the matter of practical justice referred to above. When considering fairness between the applicant and others in a like position, the Tribunal is satisfied for the reasons set out above, that it is not fair to others to permit this conduct and to grant leave.
Conclusion
The Tribunal has considered all of the material before it and the matters set out above, in determining whether it is fair and equitable and otherwise proper to grant the applicant leave.
The respondent’s Counsel submitted to the Tribunal on 22 November 2012[63], “Whilst my learned friend may well be right in saying that there are cases when delay will poison the administration of justice by the inability to properly grapple with the case, with the facts and principles at hand, this is not one of those cases.”
[63] Transcript, p. 61, lines 35-38
The Tribunal has carefully considered the established principles laid down by Wilcox J in Hunter Valley Developments. The Tribunal has found that the applicant has an acceptable explanation for the delay.The Tribunal was not satisfied that the delay in delivering the decision constitutes a denial of procedural fairness. Nais is distinguishable. The applicant’s primary contention was, without specific detail, that the Tribunal’s capacity to assess the allegations and the evidence was impaired by the delay. The evidence before the Tribunal at first instance in relation to patient L was in the form of records, pathology reports, scans and assessment of the patient and expert testimony. Dr Newcombe did not give evidence at that hearing.
Without the applicant providing specific detail, this Tribunal was satisfied, and has already determined, having considered all of the matters placed before it, that the capacity of the Tribunal at first instance to assess the allegations and the evidence was not, by reason of the delay, impaired.
Likewise, the Tribunal was not satisfied that the applicant’s recent assertion that the Tribunal at first instance erred in finding a particular instrument was used, even if it be true, constituted a denial of procedural fairness. The Tribunal cannot be satisfied that, if there was an error, such an error was induced by the delay.
The Tribunal concurred with the respondent’s submission[64] that Dr Newcombe has failed to discharge his burden in pointing to any matter where the delay has produced injustice.
[64] Submissions of 31 January 2013, paragraph 29
The Tribunal was also satisfied, for the reasons set out above, that the applicant has not satisfied it, from the material and information before it, that he has an arguable case on the merits of the substantive application.
The Tribunal was not satisfied, in all of the circumstances, that it is fair and equitable and otherwise proper to grant the application.
The Application for leave is dismissed. Liberty is given to relist in relation to costs.
………………………………..
Ms E. Symons
Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | AA 12/50 |
PARTIES, APPLICANT: | Dr Raymond Leonard George Newcombe |
PARTIES, RESPONDENT: | ACT Medical Board of the Medical Board of Australia |
COUNSEL APPEARING, APPLICANT | Mr Clynes |
COUNSEL APPEARING, RESPONDENT | Mr Moloney |
SOLICITORS FOR APPLICANT | Mr Agnew, Minter Ellison |
SOLICITORS FOR RESPONDENT | Mr L. Holcombe, HWL Ebsworth Lawyers |
TRIBUNAL MEMBERS: | Ms E. Symons – Presidential Member |
DATES OF HEARING: | 22 November 2012 |
PLACE OF HEARING: | ACAT, Canberra |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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