O'Sullivan v Medical Tribunal of New South Wales

[2009] NSWCA 374

New South Wales

Court of Appeal

CITATION:	O’SULLIVAN v MEDICAL TRIBUNAL OF NEW SOUTH WALES [2009] NSWCA 374 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24 September 2009
JUDGMENT DATE:	20 November 2009
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 1; Basten JA at 1
DECISION:	(1) Dismiss the summons. (2) Order that the applicant pay the costs of the Health Care Complaints Commission in this Court.
CATCHWORDS:	ADMINISTRATIVE LAW – judicial review – intervention in ongoing inquiry – availability of relief against refusal to recuse – order in the nature of prohibition - ADMINISTRATIVE LAW – judicial review – procedural fairness – bias – Medical Tribunal – prejudicial documents agreed to be excluded from tender but inadvertently provided to one Tribunal member – documents identified and looked at by Tribunal members before resolving that documents would not be taken into account – whether Tribunal members should have recused themselves due to reasonable apprehension of bias - LEGAL PRACTITIONERS – medical practitioners – Medical Tribunal – constitution, functions and procedures – relevance to reasonable apprehension of bias
LEGISLATION CITED:	Medical Practice Act 1992 (NSW), ss 36, 37, 90, 147, 148, 151, 154, 161, 189; Sch 2, cll 1, 5, 6
CATEGORY:	Principal judgment
CASES CITED:	Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Kioa v West [1985] HCA 81; 159 CLR 550 Lee v Cha [2008] NSWCA 13 Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724 The Queen v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248 Smith v NSW Bar Association [1992] HCA 36; 176 CLR 256 Webb v The Queen [1994] HCA 30; 181 CLR 41
PARTIES:	Brendan O’Sullivan – Appellant Medical Tribunal of New South Wales – First Respondent Health Care Complaints Commission – Second Respondent
FILE NUMBER(S):	CA 40291/09
COUNSEL:	P Menzies QC/B Nolan – Appellant Submitting appearance – First Respondent G Furness – Second Respondent
SOLICITORS:	Browns Legal & Consulting – Appellant I V Knight, Crown Solicitors Office – First Respondent Health Care Complaints Commission – Second Respondent
LOWER COURT JURISDICTION:	NSW Medical Tribunal
LOWER COURT FILE NUMBER(S):	NSWMT 40016/2008 NSWMT 40017/2008
LOWER COURT JUDICIAL OFFICER:	Deputy Chair Judge Ainslie-Wallace
LOWER COURT DATE OF DECISION:	18 August 2009

CA 40291/09
NSWMT 40016/2008
NSWMT 40017/2008

HODGSON JA
TOBIAS JA
BASTEN JA

20 November 2009

Brendan O’SULLIVAN v MEDICAL TRIBUNAL OF NEW SOUTH WALES

Headnote

On 17 August 2009 the Medical Tribunal commenced an inquiry into two complaints laid against Dr Brendan O'Sullivan ("the practitioner") by the Health Care Complaints Commission ("the Commission"). Prior to the hearing, the Commission prepared a bundle of documents to be tendered to the Tribunal. Included within those documents was a statutory declaration purportedly made by a Dr Andrew McDonald which cast the practitioner in a favourable light, and a statement by Dr McDonald denying that he made the declaration. As there was no allegation that the practitioner was knowingly involved in the creation of a forged statutory declaration, the practitioner objected to the tender of the documents, the Commission accepting this objection.

Early in the hearing, the Tribunal was advised that no evidence would be taken from Dr McDonald. It then became apparent that the bundle of documents provided to one of the Tribunal members still contained the documents objected to by the practitioner and that one or more of the members had looked at the documents. The practitioner applied for the Tribunal to disqualify itself on the basis of its impartiality having been compromised by having access to prejudicial material. The Tribunal refused to recuse itself, but removed the copy it had from the bundle and indicated that it would not take the material into account. The following day, the practitioner issued a summons in this Court seeking an order restraining the Tribunal as presently constituted from continuing its inquiry.

The issue for determination on appeal was whether the identification and perusal of the documents by the Tribunal members gave rise to a reasonable apprehension of bias.

The Court held, dismissing the appeal:

1. Where the matter said to give rise to a reasonable apprehension of bias is specific and limited to particular documents, it is necessary to examine the nature of the material and the sense in which it is extraneous to the inquiry being undertaken, as well as the nature of the tribunal before which the inquiry is being held: [24].

Kioa v West [1985] HCA 81; 159 CLR 550; Webb v The Queen [1994] HCA 30; 181 CLR 41; Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724, referred to.

2. The fair-minded observer, whose views are the touchstone of the test for a reasonable apprehension of bias, is a construct of the law, and must be assumed to have a degree of knowledge of the circumstances and structure within which the law is being administered: [40]–[41].

3. Assuming a degree of knowledge on the part of the fair-minded observer, of the nature of the documents, the general nature of hearings before the Tribunal, and the role of the Tribunal members in discharging their functions, there is no reason to suppose that such an observer might consider that responsible Tribunal members might not follow the direction of the Deputy Chairperson as to the proper manner of dealing with the prejudicial material: [43]–[45].

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, applied.

CA 40291/09
NSWMT 40016/2008
NSWMT 40017/2008

HODGSON JA
TOBIAS JA
BASTEN JA

20 November 2009

Brendan O’SULLIVAN v MEDICAL TRIBUNAL OF NEW SOUTH WALES

Judgment

1 JUDGMENT of the COURT delivered by BASTEN JA: On 17 August 2009 the Medical Tribunal commenced an inquiry into two complaints laid against Dr Brendan O’Sullivan (“the practitioner”) by the Health Care Complaints Commission (“the Commission”). Each complaint related to a different patient, whose names will not be used in these reasons as there is a non-publication order in force in the Medical Tribunal made pursuant to Schedule 2, cl 6 of the Medical Practice Act1992 (NSW). A similar direction was made by this Court at the hearing of these proceedings.

2 The proceedings in the Medical Tribunal have not been completed. Prior to the hearing, the Commission had prepared a bundle of documents to be tendered to the Tribunal and had submitted the bundle to the practitioner for his consideration. On 21 July 2009 his solicitor had written to the solicitor for the Commission indicating that objection was taken to the inclusion of certain specified documents, which might have reflected adversely on the practitioner, in a way which had not been the subject of any complaint. The Commission accepted the objection and by letter dated 4 August 2009 agreed to the removal of the documents from the tender bundle.

3 The critical documents, which will need to be considered in more detail below, were a statutory declaration which purported to have been made by a Dr Andrew McDonald, and a statement by Dr McDonald denying that he had made the statutory declaration. There was evidence from which it might be inferred that the statutory declaration was a forgery and other evidence which, it was contended, suggested that the practitioner may have been involved in the forgery. The Commission, in its letter of 4 August, stated that it did not allege that the practitioner was knowingly involved in the creation of a forged statutory declaration.

4 On the morning of the second day of the hearing, 18 August 2009, counsel for the practitioner advised the Deputy Chairperson of the Tribunal, Judge Ainslie-Wallace, that no evidence would be taken from Dr McDonald. Her Honour then considered a brief argument with respect to the tender of other documents, to which objection was taken. Having ruled upon those matters, the Tribunal adjourned briefly. What happened at that point is explained in reasons given by the Tribunal on a subsequent disqualification application.

“4 Before the hearing recommenced …, I was asked to rule on a dispute over the admission of a document. That having been done and before the Tribunal reconvened, counsel informed me that a witness, Dr McDonald whose evidence was to be taken by phone link, would not be required.
5 In conveying this to the Tribunal, it became apparent that there was material in the folder of one member of the Tribunal that related to Dr McDonald. The Tribunal members, in determining whether the same material was in each folder, considered those documents.
6 The documents comprise a statutory declaration apparently made by Dr McDonald, an email from the HCCC to Dr McDonald and a response from Dr McDonald. The letter from the HCCC to Dr McDonald asked him about the Statutory Declaration as part of an attempt to ‘ authenticate ’ it. In his response, Dr McDonald disavowed the Statutory Declaration although indicated that the signature was identical to his.
7 When raised with counsel, it became apparent that although it had been agreed that those documents would be removed from material to be considered by the Tribunal and the complainant did not intend to rely on it in this case[,] [i]nadvertently, the documents had not been removed from the folders delivered to one member.”

5 When that matter was revealed, counsel for the practitioner made an application that the Tribunal disqualify itself on the basis that its impartiality had been compromised by having access to prejudicial material. The Tribunal declined to take that step. The following day, 19 August 2009, the practitioner commenced proceedings in this Court seeking an order restraining the Tribunal from continuing its inquiry into the complaint. It became apparent in the course of argument in this Court that what in substance was sought was an order restraining the Tribunal as presently constituted from continuing its inquiry.

6 The basis for the application to this Court was that a reasonable apprehension of bias would attend the continuation of the inquiry and would therefore invalidate the outcome. For the reasons which follow, that submission should be rejected and the summons dismissed.

7 The complaints before the Tribunal allege that the practitioner had been guilty of either unsatisfactory professional conduct or professional misconduct in his conduct with respect to patients A and B, pursuant to ss 36 and 37 of the Medical Practice Act. The substance of the complaint relating to patient A concerned the certification by the practitioner that the patient was suffering from a mental illness, or was a mentally disordered person, for the purposes of the Mental Health Act 1990 (NSW). The certificate stated:

“I [the practitioner] … certify that on First April 2004 immediately before or shortly before completing this certificate at Newtown rooms, 188 Carillon Ave, Newtown I personally examined/personally observed [patient A] for a period of 30 minutes.”

8 In addition, the practitioner appears to have completed part 2 of the form which stated that he was of the opinion that “the condition of the person is such that the assistance of a Police Officer is required in order to take the person to a hospital; and that no other means of taking the person to a hospital are reasonably available”. The certificate was signed and dated 1 April 2004.

9 It appears not to have been in dispute that patient A was in fact in jail at that time and that the practitioner did not examine or observe him on that date as the form appeared to assert. Indeed, patient A was said to have been arrested and taken into custody on 25 February 2004, a little more than one month before the form was completed. The complaint alleged that the practitioner failed personally to examine or observe patient A immediately or shortly before completing the certificate; failed to properly consider the requirements that there be no other reasonably available appropriate means for dealing with patient A; acted inappropriately in giving the schedule to the patient’s mother and failed to ensure that the schedule was “not false or misleading”.

10 A critical aspect of the complaint which fell for consideration by the Tribunal was whether the practitioner had made a statement in a statutory document, having legal consequences, which was false or misleading. There may have been other respects in which the practitioner’s creditworthiness would have been called into question in the course of the proceedings, but this was the issue of most direct relevance to the impugned material, which it was feared would give rise to an apprehension of bias.

11 The first of the documents which the Commission had agreed should not go before the Tribunal, but which was included in the bundle provided to at least one member of the Tribunal, was the statutory declaration purportedly made by Dr Andrew McDonald. He stated that he had previously cared for patient A, which was not in dispute. He noted that the practitioner had also shared the care of patient A at certain times. After referring to the fact that patient A had been in jail in 2004 the statutory declaration continued:

“5. In relation to that, I at no time made any professional complaint against Dr O’Sullivan, and specifically, I have never made any professional complaint against Dr O’Sullivan’s clinical co-management of the shared patient [A] to the NSW Medical Board and/or to the NSW Health Care Complaints Commission.
6. If I did have any problems in the co-management of the patient [A], then I would probably have telephoned Dr O’Sullivan to discuss any issues that arose between us. I did not do so.”

12 The second relevant document in the bundle was an email to Dr McDonald, then in the United Kingdom, from an officer of the Commission. The document indicated a desire on the part of the Commission to “confirm the authenticity of the Statutory Declaration” and asked for confirmation or comment on a number of aspects of the document, including whether Dr McDonald had seen the document before.

13 Dr McDonald responded confirming certain uncontroversial matters, but including two paragraphs which the Commission had agreed to remove from the document to be tendered, namely:

“5. Regarding the statutory declaration dated 7 August 2007, I neither prepared nor signed this document, but the signature does appear to be identical to my signature. The contents do not in any way reflect my opinion or recollections of the matters in question.
6. I had never seen this document prior to receiving the copy you emailed to me on 19 October 2007.”

14 The position of the Commission before the Tribunal was that the first two documents should not have been included in the tender bundle and that the last document should have been included in redacted form, after the removal of paragraphs 5 and 6. The Tribunal was advised in those terms when the matter was raised before the whole Tribunal on 18 August 2009: Tcpt, p 107 (50). Following that advice and an application that the Tribunal disqualify itself, the Deputy Chairperson stated (Tcpt, p 108):

“Mr Maiden [counsel for the practitioner], the tribunal has discussed the matter generally, perhaps, anticipating that it may be an application by you. That material having been inadvertently put before the tribunal, or some of the tribunal members and, given that the complainant doesn’t rely on it, doesn’t seek to make anything of it. May I say, Mr Maiden, without more – I looked at the documents, because I anticipated the application.
The documents seem to me to be inconclusive. I’m of the view that the tribunal can properly put it out of its mind, and not bring the documents to bear in any way in forming a determination in the matter. I say that, very conscious of your application, but also because the documents on their face seem to me to be ambiguous and candidly confusing, and I don’t want you to amplify why you say – I mean, I suppose I can understand why you say they may be prejudicial.”

15 Counsel continued to debate the issue for a period, at the end of which the Deputy Chairperson indicated that she intended to adjourn the hearing and discuss the matters with members of the Tribunal. After a short adjournment the Tribunal returned and her Honour made the following statement:

“Mr Maiden, we do not intend to recuse ourselves for this reason: that the tribunal functions with a judge so that I set the legal parameters – I determine the admissibility of evidence, exercising judicial functions; and, in this case, I say that evidence is not properly before us and will not be taken into consideration further; and, unlike a jury, I participate in the deliberations – you know, the fact-finding – and we are confident that, that parameter having been set, the material – we accept that it was inadvertently put before the tribunal and that, under my parameters – that is, that the evidence is – it’s not evidence; it’s not going to be taken into account in any way by the tribunal, in accordance with my legal direction – that that would assuage any apprehension in the mind of the fair-minded observer.”

16 When the matter came before this Court, there was some uncertainty as to the precise form of the purported statutory declaration. After the hearing, a further copy of the document was provided to the Court (by leave) which was said to constitute a true copy of the document found in the Tribunal file and which showed a header on page 2 bearing a partly obliterated telephone number and what appears to be the practitioner’s name. The precise significance of this marking was unclear. No doubt it might be inferred that, at some stage, the document had been sent by the practitioner by facsimile, although when and to whom and in what form were by no means self-evident.

17 Following the ruling of the Deputy Chairperson on 18 August, the Tribunal continued to sit through to 21 August 2009. On 19 August the practitioner had sought an interim order from this Court restraining the Tribunal as presently constituted from proceeding with its hearing, but that application was refused.

18 On 20 August 2009, patient A’s mother gave evidence. Her statutory declaration filed in the Tribunal by the practitioner was supportive of aspects of the practitioner’s case. Her statutory declaration was in language which did not conform to the way in which she spoke. She was asked whether she wrote it and said that she did: Tcpt, p 139. However, she agreed that it was typed by Dr O’Sullivan himself. She denied, however, that Dr O’Sullivan had prepared the document and given it to her to read. No doubt the Tribunal will in due course be asked to draw inferences from the form of the document as to the role Dr O’Sullivan may have had to play in preparing that statutory declaration for patient A’s mother, and also one in similar language for patient A. It will have before it the practitioner’s own statutory declarations and, by that stage, his oral testimony and cross-examination.

19 It is conceded by the Commission that, given its concession that it does not seek to argue that the purported statutory declaration of Dr McDonald was a forgery in which the practitioner was knowingly concerned, that will not form part of the cross-examination of the practitioner.

20 The factual material does not identify with any precision which member of the Tribunal had a copy of the impugned documents in his or her copy of the proposed tender bundle, the extent to which other Tribunal members read the documents in order to identify whether they had them in the bundles with which they had been provided, or whether any of them had previously read the documents. As will be noted below, the test of reasonable apprehension of bias depends upon that which might be inferred by the fair-minded lay observer sitting in the courtroom, with knowledge of what had transpired. Accordingly, gaps in the evidence must be filled on the same basis. It will be suggested below that the fair-minded observer would not have inferred from that which transpired in the Tribunal hearing that any member of the Tribunal had read the documents prior to the question arising in the manner described by the Deputy Chairperson. It may, however, be inferred that the observer might take the view that one or more of the Tribunal members had in fact read the statutory declaration and the denials of Dr McDonald and might have noted the possibility that the practitioner was implicated in the preparation of the statutory declaration.

Legal principles

21 It was not in contention that the basis of the present application is the principle that a judicial officer is disqualified if a fair-minded lay observer might reasonably apprehend that the officer might not bring an impartial mind to the resolution of the question that the Tribunal is required to decide: see, eg, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). As was explained in Ebner, that test is based upon the fundamental principle that “the tribunal be independent and impartial”. The relatively low hurdle created by this test is justified on a number of grounds. First, the fundamental nature of the principle is one which demands strict adherence. Secondly, confidence in the system of justice relies in part upon the appearance as well as the actuality of its impartial administration. Thirdly, the very need for impartial administration of justice limits the extent to which it is appropriate to inquire into the actual state of mind of the decision-maker or the way in which a particular factor influences the decision-making process.

22 It is clear that the circumstances in which the impartiality of a tribunal or judicial officer may be cast into doubt are numerous and varied. In Webb v The Queen [1994] HCA 30; 181 CLR 41 at 74, Deane J identified “four distinct, though sometimes overlapping, main categories of case”. These he identified as disqualification by interest, by conduct, by association and by extraneous information. As his Honour noted, there is a close relationship between a judge who has a personal and direct pecuniary interest in a matter and an interest arising by way of association through a third person. The second category, that is conduct, is really an example of the evidential basis upon which bias is apprehended, rather than a distinct category of bias. Importantly for the present case, extraneous information was said to “commonly overlap” with association and to consist of “cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias”.

23 The rationale for the principle of apprehended bias is arguably somewhat broader than that which may generally be understood by reference to an independent and impartial tribunal. It is a facet of the rule of law and the need for equal treatment before and under the law. One risk of inflammatory comment in the media, close to a trial, is that jurors will find it difficult to approach the issues involved dispassionately and objectively, setting aside pre-conceived notions, stereotyping attitudes, prejudice and other extraneous considerations. The very fact that judgments in relation to interlocutory appeals, including the present judgment, are given restricted circulation, is designed to avoid decision-makers reading them and being distracted at a forthcoming trial or inquiry.

24 Where the matter said to give rise to an apprehension of bias is specific and is limited to particular documents, there are specific considerations which will determine the outcome of an application such as the present one. The first is the nature of the material and the sense in which it is extraneous to the inquiry being undertaken. The second is the nature of the tribunal before which the inquiry is being held.

25 In relation to the first matter, the circumstances of the present inquiry differ significantly from those under consideration in Webb, and in other cases involving criminal proceedings. Thus Deane J’s fourth category arose where the extraneous information constituted knowledge of “some prejudicial but inadmissible fact or circumstance”. In the present case, the Tribunal is entitled to conduct its inquiry “as it thinks fit”: Medical Practice Act, s 161(1). Further, the Act expressly provides that the Tribunal “is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit”: s 161(4) and Schedule 2, cl 1. Many of the rules of evidence are designed to limit the material which can be relied on before a tribunal and, in particular, to exclude material which may be irrelevant or prejudicial. The non-application of the rules of evidence indicates a degree of faith in the Tribunal, under the guidance of a District Court judge, being able to distinguish and disregard the irrelevant and prejudicial.

26 This inference leads to a consideration of the second factor, namely the nature and composition of the Tribunal. To hold an inquiry into a complaint against a medical practitioner, the Tribunal is to consist of a Chairperson or Deputy Chairperson (nominated by the Chairperson) and three other members appointed by the Board: s 147. Other than the Chairperson or Deputy Chairperson, the Tribunal is to consist of two registered medical practitioners and one person who is not a registered medical practitioner (but who may be a lawyer).

27 Any question of law or procedure arising during an inquiry is to be determined by the presiding Chairperson or Deputy Chairperson: s 154(1). He or she will be a judge of the District Court or a person having the status of a judge of the Supreme Court: s 148(1) and (9). Other decisions of the Tribunal supported by at least three members will be determinative, but where the Tribunal splits 2:2, the decision of the Chairperson or Deputy Chairperson is determinative: s 154(2).

28 In exercise of his or her functions under Pt 11 of the Medical Practice Act, the judicial member enjoys the protection and immunity of a judge of the Supreme Court: s 151. Other Tribunal members are also protected in respect of acts done or omitted “in good faith for the purposes of executing this or any other Act”: s 189.

29 Although, in contrast to trials with juries, the rules of evidence did not apply, it was inappropriate for material to be placed before any Tribunal member, even inadvertently, in contravention of the agreement between the parties as to what would be tendered. Had there been any possibility that the material was placed before the Tribunal deliberately by one party, in contravention of the agreement, quite different considerations might have arisen. However there was no suggestion of such conduct in the present case: there were other discrepancies in the preparation of the tender bundles noted by the Chairperson which clearly suggested carelessness on the part of those responsible for preparing the bundles.

30 There are two reasons for being particularly solicitous in respect of material presented to juries. The first is that juries will contain people, randomly selected from the community, with greatly differing characteristics. At least in the past, some rules were developed because it could not even been assumed that jurors were literate: see Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724; 734 at 736 (Lord Diplock). While the Tribunal contains non-lawyers, it is comprised of two registered medical practitioners and another person whom, it may be assumed, is a reputable and responsible member of the community and likely to be someone with experience and education. Almost invariably, as a matter of practice, Tribunal members hold tertiary qualifications. The need to protect a tribunal so comprised from prejudicial material on the basis that one cannot rely upon the members to address the issues before them by effectively identifying and putting to one side both conscious and subconscious prejudices, is a factor of much diminished weight. It would be an affectation on the part of the legal profession to think that only those with the training and experience of judicial officers have that capability.

31 Although it is not necessary to adopt this position in the present case, it is at least arguable that the fair-minded (but not legally trained) observer will have a degree of scepticism about any judicial pretensions to a monopoly over the capacity to exclude from consideration, material that has been rejected or withdrawn. Given the underlying policy (namely the need to protect the appearance of impartial justice) arguably such healthy scepticism should be acknowledged and accepted by the Court.

32 Secondly, as the Deputy Chairperson noted in the present case, the Tribunal does not undertake its fact-finding exercise in isolation from the judicial member. It is therefore not merely a matter of faith that the non-legal members of the Tribunal will follow the directions of the judicial member with respect to questions of law and procedure. This, too, is a factor which the fair-minded observer would take into account.

33 It may be recalled that, almost inevitably, administrative decision-makers operate without reference to the rules of evidence. Again, almost inevitably, they will be required to consider and, where appropriate, exclude from influence prejudicial material which may be destructive of the credit or credibility of an applicant. Access to such material cannot vitiate a decision. Thus, in Kioa v West [1985] HCA 81; 159 CLR 550, the delegate of the Minister responsible for determining whether Mr Kioa could remain in Australia or should leave, had before him a submission which referred to Mr Kioa’s “active involvement with other persons who are seeking to circumvent Australia’s immigration laws”. The manner in which administrative law deals with such difficulties is to require that such prejudicial material be disclosed to the person affected so that he or she may have an appropriate opportunity to address it: Kioa at 587 (Mason J); 602-603 (Wilson J); 629 (Brennan J), and 633 (Deane J).

Application of principles

34 The first problem for the practitioner was to identify the nature of the prejudice which he feared he might suffer and which might be inconsistent with the appearance of impartiality on the part of the Tribunal. At its highest, it might have been described as a propensity on his part to construct false documentary evidence supportive of his case, including by falsifying a signature.

35 Although the Deputy Chairperson of the Tribunal described the documents as confusing, the inference noted above might readily have been drawn and retained by a Tribunal member, simply on the basis of identifying the paragraphs in Dr McDonald’s statement, which should have been excluded, and which denied that the document was his. However, it is by no means clear precisely how that prejudice would tend to operate. At one stage in the course of argument, senior counsel for the practitioner appeared to accept that the Tribunal members might simply characterise him as a liar, capable of seeking to produce false evidence, and find him guilty of misconduct on that basis. However that position was ultimately found to be untenable. In every case in which a party gives evidence and is disbelieved there is the possibility that the disbeliever will find that the party has lied. It is commonplace to direct juries to distinguish between the giving of a false explanation and guilt of the offence as charged.

36 It is, of course, open to the Tribunal to find that a practitioner has lied on oath and should, for that reason, be found guilty of unprofessional conduct or professional misconduct. There is a procedure which may be followed in such cases, subject to compliance with the rules of procedural fairness, namely for the Tribunal itself to prefer an additional complaint: see Schedule 2, cl 5 and see Smith v NSW Bar Association [1992] HCA 36; 176 CLR 256 at 269. Alternatively, the Tribunal may make a finding that the practitioner has given false evidence, but deal with the existing complaints on their merits. The latter course, at least generally, would give rise to no reasonable apprehension of bias.

37 A second concern raised by the practitioner was that the if the Tribunal were minded to consider whether the statutory declarations of patient A and his mother were in fact their own work or were constructed by the practitioner, they might be inclined to take into account their suspicions that the practitioner not only constructed, but forged the statutory declaration of Dr McDonald.

38 The contrary argument is that, assuming the practitioner’s evidence (yet to be given) will be that he typed verbatim the statements written by patient A and his mother, whether or not he will be believed will be likely to depend upon the specific documents, such oral evidence as might be given by the deponents and his evidence in respect of the production of those documents.

39 Thirdly, the practitioner submitted that suspicion arising from the impugned documents as to his willingness to construct evidence might, at a quite general level, where credibility was in issue, lead the Tribunal to disbelieve the practitioner.

40 In each circumstance, the question is not what might appear likely to this Court, but whether the reasonable observer in the Tribunal might consider that each member of the Tribunal might not bring an impartial mind to the resolution of the complaints. As noted above, one rationale for seeking to view the matter through the eyes of a fair-minded lay observer is the importance of the appearance of justice being done. Nevertheless, the fair-minded lay observer is a construct of the law: he or she must be assumed to have a degree of knowledge of the circumstances and structure within which the law is being administered. In the present case the observer must be treated as having at least that degree of knowledge of the documents which the Tribunal members might have. That assumption is not necessarily in accordance with the facts, as both counsel and the Deputy Chairperson were cautiously oblique in their description of the documents in the course of the hearing. (It is not necessary to consider for present purposes whether such grounds could be relied upon where nothing is said in Court because the Deputy Chairperson has discreetly had the documents removed and simply returned them to the parties at the end of the hearing.)

41 Further, the fair-minded observer must be taken to understand the general nature of the proceedings, the composition of the Tribunal and the manner in which the Medical Practice Act invests the Tribunal with control over its own procedures (through the judicial member) and permits it to inform itself of relevant matters as it thinks fit.

42 Applying this test, the fair-minded observer should also be understood to know that judicial officers rule on the admissibility of evidence on a daily basis, and are assumed to be able to put out of their minds irrelevant or prejudicial material which is excluded. At one stage senior counsel for the practitioner sought to press a claim that the judicial member should also be disqualified. However, if that were correct, it is difficult to see how a judge could rule in the course of a trial on the inadmissibility of disputed prejudicial material without rendering herself liable to disqualification if the matter were excluded. Such an approach would be inconsistent with the daily practice of the administration of justice. That submission should be rejected.

43 Even restricting the practitioner’s claim to the position of the three non-judicial members, the test outlined above is not satisfied. There is no reason to suppose that the fair-minded observer would not accept the principle that responsible Tribunal members would seek to follow the direction of the judicial member as to the proper manner of dealing with material which they had seen, but not retained. Further, on the assumption that the judicial member could properly put such material out of her mind, it is difficult to envisage a fair-minded observer who might consider that experienced medical practitioners and a lay person holding tertiary qualifications (as was the present case) might not also be able to undertake that task when directed as to why such a course must be taken. Particularly would that be so in circumstances where the lay observer must be presumed to appreciate that the fact-finding exercise will be undertaken in the presence of and in discussion with the judicial member.

44 It must also be emphasised that there had been no act, comment or conduct of any kind on the part of any member of the Tribunal which could found an apprehension of partiality. The challenge turned solely on the concern that a passing exposure to potentially prejudicial material early in the course of the hearing might affect the final outcome. It is that claim which lacks persuasive force.

45 Accordingly, the claim for relief must be dismissed.

Nature of relief sought

46 In the circumstances, it is not necessary to discuss in detail the nature of the relief sought by the practitioner.

47 It suffices to note that the first two orders sought by the practitioner in the amended summons were an order in the nature of the writ of prohibition and an order permanently restraining the Tribunal from taking any further step or exercising any power in the proceedings. In circumstances where the Tribunal had clearly determined that it would not recuse itself and would continue exercising its powers, the practitioner may be able to obtain such relief if the relevant ground had been made good: The Queen v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248; Lee v Cha [2008] NSWCA 13 at [28]. However, there may have been discretionary factors militating against early intervention: Lee at [29]-[37].

48 In addition, the practitioner sought orders in the nature of certiorari quashing the decision of the Tribunal that it was not disqualified.

49 Although a practitioner has a right of appeal to this Court against a decision of the Tribunal with respect to a point of law, it was not suggested that any such right arose in the present case: see Medical Practice Act, s 90(1)(a). That conclusion may well have been correct. However, it casts doubt upon the proposition that there was any decision of the Tribunal with respect to the application for disqualification, which would form the basis for an order in the nature of certiorari. Such orders are generally only available in respect of operative or final decisions, which affect a person’s legal interests: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ) and 595 (Brennan J). None has been made in the present case. By analogy, there is no right of appeal in respect of a decision not to disqualify, but only from an order which may be said to be erroneous because the relevant court or tribunal was disqualified from taking any step in the proceeding: see Lee v Cha at [19].

50 The summons should be dismissed. The applicant should be ordered to pay the Commission’s costs of the proceedings in this Court.

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10/05/2010 - Awaiting outcome of Medical Tribunal before uploading judgment - Paragraph(s) Whole judgment