Papps v Medical Board of South Australia - [2006] SASC 234

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PAPPS v MEDICAL BOARD OF SOUTH AUSTRALIA
[2006] SASC 234
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)
8 August 2006
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - MEDICAL PRACTITIONERS - DISCIPLINE, AND REMOVAL FROM AND RESTORATION TO REGISTER - PROCEDURE EVIDENCE AND APPEAL - SOUTH AUSTRALIA
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT
Appeal from decision of single Judge dismissing appeal against decision of Medical Practitioners Professional Conduct Tribunal to suspend a practitioner from practice for 12 months with conditions to be complied with upon return to practice - appeal on grounds that: Tribunal had failed to adequately assist the practitioner, who was unrepresented, at the hearing; Tribunal had taken into account the testimony of a medical specialist inappropriately and suspension for 12 months was manifestly excessive - consideration of statutory regime enabling appeals from the Tribunal to be heard by this Court - discussion of the nature of appeals from the Tribunal - Held: decision of Tribunal and transcript of proceedings before it revealed that Tribunal proceeded appropriately - no error made - suspension of 12 months not excessive - appeal dismissed.
Medical Practitioners Act 1983 (SA) s 66, s 62, s 58; Supreme Court Act 1935 (SA) s 50; Supreme Court Rules r 96.04, r 97, referred to.
Craig v Medical Board of South Australia (2001) 79 SASR 545; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72; Webster v State of South Australia (2003) 87 SASR 17; Webster v MacIntosh (1980) 32 ALR 603; Wigg v Architects Board of South Australia (1984) 26 SASR 111 ; Thompkins v South Australian Health Commission [2001] SASC 147; Westmite Pty Ltd v Law Society of South Australia (1999) 73 SASR 454 ; Re Coldham; Ex parte Brideson (1990) 170 CLR 267; Freeman v Rabinov [1981] VR 539; T v Medical Board of South Australia (1992) 58 SASR 382, considered.

PAPPS v MEDICAL BOARD OF SOUTH AUSTRALIA
[2006] SASC 234
Full Court: Nyland, Gray and Vanstone JJ

NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Gray J. I have nothing to add.
GRAY J
Introduction
This appeal calls into question the penalty imposed by the Medical Practitioners Professional Conduct Tribunal (“the Tribunal”) with respect to the admitted unprofessional conduct of a medical practitioner.
Following a hearing at which the practitioner was unrepresented, the Tribunal suspended the practitioner from practice for 12 months with conditions to be complied with upon return to practice. The practitioner’s initial appeal was dismissed by a Judge of this Court. That dismissal is the subject of this appeal to the Full Court. The practitioner was legally represented both before the single Judge and at the hearing of this appeal.
Disciplinary proceedings
In Craig v Medical Board of South Australia[1], Doyle CJ discussed the role and importance of disciplinary proceedings. Although the extract below is lengthy, the remarks are apposite and important in terms of this Court’s role in reviewing disciplinary proceedings:[2]
[1] Craig v Medical Board of South Australia (2001) 79 SASR 545.
[2] Craig v Medical Board of South Australia (2001) 79 SASR 545 at [41]-[48].
The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
In NSW Bar Association v Evatt (1968) 117 CLR 177, in a much cited passage, the High Court found that the conduct in question demonstrated that the practitioner was unfit to practise as a barrister, and then went on to say (183-184):
"The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v NSW Bar Association (1960) 104 CLR 186 at 201, 202. The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser. Accordingly, the Supreme Court was, clearly, in error in deciding to suspend the respondent from practice rather than to disbar him, and it is the duty of this Court to correct that error."
Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrongdoing, this passage makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case.
This statement by the Court has often been cited as stating the basis upon which orders are made by professional disciplinary tribunals. A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.
While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.
In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for.
These remarks are apposite to the present proceedings and provide the relevant backdrop against which the substantive issues raised by this appeal are to be considered.
The Board Hearing
The practitioner completed his tertiary qualifications in 1984. He commenced working in general practice as a sole practitioner in 1986. In 2001, complaints were made to the Medical Board of South Australia (“the Board”) with respect to the practitioner’s conduct. The complaints at that time were as follows:
-Between June 1998 and June 1999 the practitioner failed to provide copies of his medical notes to medical practitioner’s assuming care of his former patients.
-Between May and July 2000, the practitioner failed to communicate adequately with a rehabilitation service in respect of a patient. As a result, the rehabilitation service was unable to hold case conferences to advance the patient’s rehabilitation.
-Between 11 and 18 July 2000, the practitioner failed to communicate adequately with a worker’s compensation insurer in relation to a patient.
The practitioner admitted the charges of unprofessional conduct and gave undertakings to the Board on 14 July 2001. Those undertakings were in the following terms:
I, MICHAEL PAPPS of 215 Melbourne Street, North Adelaide in the State of South Australia, 5006, Medical Practitioner, HEREBY UNDERTAKE to the Medical Board of South Australia (the Board) in relation to my registration and practice of medicine in the said State:
1.     I shall undergo a course of Practice Management training as approved by the Board.
2.     I shall provide the Board with evidence of my satisfactory completion of the course.
3.     I will ensure safe and secure storage for all my medical records.
4.     I shall compile a list of all medical records held by me to be completed 3 months after these Undertakings are entered into. That list showing:
The name of the patient
The address of the patient
5.     I shall write to each of the patients whose records I hold and was seen within 3 years of my ceasing practice at Semaphore and inform them of that fact (“I am” initialled) keeping a record of the correspondence.
6.     I shall keep a logbook of all requests received for the transfer of medical records and/or reports. That log shall show:
The date the request was received
The name of the patient
The date the report was sent or transfer of records or a summary of those records was effected
7.     All requests for medical records as referred to in clause 6 shall be met within 14 days of receipt of the request and all requests for reports as referred to in clause 6 shall be met within 1 month of receipt of the request.
8.     I shall comply with all requirements concerning the Workers Compensation and Rehabilitation Act, irrespective of whether my patient has legal representation.
9.     I acknowledge that, whilst a reasonable fee may be charged for the preparation of reports and/or the preparation of a summary of or copying of medical records, the sending of such report, summary or copy of medical records will not unreasonably be withheld until that fee is paid.
10.     I acknowledge that the Board may within 12 months after these Undertakings are entered into require an audit of my records at my expense regarding these matters at any time and I will co-operate with the Board to the fullest extent in this regard.
11.     I acknowledge that these Undertakings are binding upon me and that a breach of any one or all of them may constitute unprofessional conduct and lead to my registration being withdrawn.
The Board was prepared to deal with the matter by way of both a reprimand and an acceptance of the undertakings. The presiding member of the Board informed the practitioner of the seriousness of breaching an undertaking:
Just for the record I wish to say once more that I have been assured that you, Dr Papps, understand the seriousness of breaching an undertaking. It would require a new hearing if that occurred and it would be seen in a very, very serious light, and I am taking it that you understand that.
The Tribunal Hearing
In 2004, further complaint was made alleging that the practitioner had failed to comply with his undertakings in that he:
-failed to log requests for a medical report made by solicitors on 15 June and 22 August 2001 in respect of a patient;
-failed to log a request for a medical report made by an insurer on 31 October 2001 in relation to a patient;
-failed to provide a medical report to solicitors as to the medical condition of a patient in 2001;
-failed to transfer medical records of a patient upon the request of a new treating medical practitioner in November 2002;
-failed to cooperate with the audit of his medical records by the Board and failed to produce to an audit meeting on 4 March 2002 a copy of his letter to patients referred to in his undertakings; and
-failed to cooperate with the audit of his records by the Board by failing to produce four randomly selected patient files for the purpose of inspection so that the Board could assess his compliance with the undertakings.
Further, complaints of unprofessional conduct were also advanced. They may be summarised as follows:
-The practitioner used inappropriate public advertising promoting a service outside the scope of medical practice. The advertisement stated that the practitioner could help patients “win” personal injury compensation cases and that he could refer patients to “expert lawyers to maximise claims”.
-The practitioner used abbreviations in correspondence to indicate membership of various associations in which he did not hold membership. It was said that the abbreviations implied falsely that the practitioner held specialist qualifications.
-The practitioner issued inappropriate medical certificates, failed to maintain accurate clinical records and failed to make a referral to a psychiatrist in relation to a patient who was the practitioner’s brother-in-law.
-The practitioner excised a mole in inappropriate circumstances, delayed obtaining pathology results and conducted the procedure with inadequate staff, without proper hand-washing facilities, in untidy and unhygienic rooms.
-The practitioner failed to follow up pathology testing consequent upon excision of a mole and failed to communicate to the patient the result of that testing.
-The practitioner failed to communicate or adequately communicate with a rehabilitation service in relation to a patient.
-The practitioner failed to communicate or adequately communicate with a patient with respect to the patient’s rehabilitation services.
Following a number of preliminary hearings, the complaints came before the Tribunal in October 2004. The practitioner admitted the alleged unprofessional conduct. However, he disputed some matters of fact.
Some of the matters of complaint arose during the course of the Tribunal’s hearings. On 24 February 2005, final amendments were made to the complaint. At that time, the Tribunal canvassed the issue of an adjournment. The practitioner indicated that he wished to proceed without any further adjournment.
The Tribunal’s reasons for decision canvassed the previous proceedings before the Board, summarised the various allegations and then noted:
The decision we have to make is what other penalty we should impose. As you know, our alternatives are to reprimand you or to fine you or just merely to allow you to practice with those conditions, or to suspend your registration or cancel your registration.
The Tribunal continued:
In coming to our decision we have in our view, two alternatives. On top of the conditions which have been set out and agreed upon, which will allow you to practice in the future, there should either be a cancellation of your registration or a suspension of your registration for a period of time. We cannot see that any of the other alternatives under the Act can apply here; these matters are far too serious.
It is the thoughts of the Tribunal that really, the most appropriate penalty, looking objectively at these matters, should be cancellation. However, after much consideration and much thought, we with a certain hesitation, because you have acknowledged your guilt in these matters, because this is the first time you have appeared before this Tribunal, although you have been before the Board before, can afford a certain leniency and opt for the alternative of suspension for a period of 12 months, in conjunction with the conditions as set out and agreed upon by the two parties.
The Tribunal ultimately made the following orders:
1.That [the practitioner] not perform any exposure prone invasive procedures (the procedures) until the following has occurred:
(a)     That the [practitioner], takes steps to ensure visiting privileges at an accredited day surgery facility at which to carry out the procedures. If the [practitioner] is not able to secure visiting privileges at such facility, then he shall not conduct the procedures until he has had his consulting rooms in Melbourne Street (or such other rooms at which he may from time to time consult) accredited for the performance of the procedures by an organisation nominated by the Registrar of the Board (the Registrar) and thereafter receives the Board’s approval in writing to perform the procedures. The cost of any assessment for accreditation shall be borne by [the practitioner].
(b)     That [the practitioner] undergo assessment of his performance of surgical excisions. Such assessment shall be conducted by a medical practitioner nominated by the Registrar and undertaken within one month of the date of this order. The cost of such assessment is to be borne by [the practitioner].
2.That within 12 months of this order [the practitioner] will provide the Registrar of the Board with evidence of satisfactory completion of practice management training course approved by the Registrar in accordance with the undertakings of the Board dated 14 June 2001.
3.     That until further order [the practitioner] will:
(a)     undertake to ensure the safe and secure storage of all his medical reports.
(b)     keep a log of all requests received for the transfer of his medical records and/or preparation of reports. That log shall show:
- the date the request was received
-the name of the patient
-date the report was sent or transfer of records or summary thereof was effected
AND PROVIDE such log books for the inspection of the Registrar within five working days of the request for same by the Registrar.
(c)     ensure that all requests for medical records as referred to in paragraph 3(b) above are met within 14 days of receipt of the request and all requests for reports also referred to in paragraph 3(b) above are met within one month of receipt of the request or such other time as agreed in writing with the person making requests for a report.
…
4.That [the practitioner] admit to the Registrar or his delegate details of all qualifications other than MBBS and associate memberships that he intends to include on any professional record such as letters, reports or business cards, together with supporting documentation.
5.That [the practitioner] not use the qualification or membership details referred to in paragraph 1 above, unless he has the express approval of the Registrar or his delegate.
6.That [the practitioner] provide to the Registrar or his delegate, a copy of any professional record referred to in paragraph 1 above as may be requested from time to time.
The suspension of registration will commence from 28 March 2005. The suspension will be for 12 months and on the resumption of practice the conditions will apply until further order. The Tribunal further order costs to be taxed.
Appeal to the Single Judge

At the hearing of the appeal to a single Judge of this Court, the practitioner was represented. The Court received an affidavit of the practitioner. The learned Judge summarised the contents of that affidavit in the following terms:
The affidavit of the practitioner, over 178 paragraphs, cover matters which include:
-his education,
-his medical qualifications,
-his employment history commencing from the age of 10,
-his personal family circumstances and early professional practice,
-his ownership of a rest home for philanthropic purposes which led to two declarations of bankruptcy,
-his current financial position including the servicing of loans associated with the rest home for which his extended family are guarantors,
-the educational problems associated with his five children and their future schooling,
-his current working as a locum usually in a team with other medical practitioners,
-factual matters and explanations concerning the allegations of professional misconduct,
-steps he has taken to address deficiencies in practice.
Most of this material is irrelevant if the issue is whether suspension or cancellation is the appropriate order. It may have significant relevance if the appropriate penalty is a fine. The matters which may have had relevance concerning the penalty are the last three items, namely his current employment, factual matters and steps taken to address deficiencies in practice. As to the steps taken and his current employment, many of these appear to have been taken in hindsight after the practitioner received the penalty by the Tribunal and after he received the benefit of specific legal advice. His working as a locum is not how he portrayed his situation when he was before the Board on 11 October 2004.
On appeal, counsel for the practitioner submitted that the penalty imposed was manifestly excessive. Counsel further submitted that the Tribunal had not had adequate regard to the fact that the practitioner was unrepresented. Counsel contended that the Tribunal had failed to inform the practitioner adequately of his rights and had failed to forewarn him of the potential of suspension as a penalty. Counsel advanced the submission that the practitioner had, in the circumstances, been denied procedural fairness. Counsel further complained that the Tribunal had placed undue reliance upon a report of a medical specialist when the practitioner disputed the views expressed in the specialist’s report.
The Judge rejected each complaint. The Judge concluded that the Tribunal had adequately addressed the unrepresented status of the practitioner. The Judge concluded that the Tribunal had not had regard to the challenged specialist evidence. With respect to the complaint that the penalty was manifestly excessive, the Judge reasoned:
In all of the circumstances it does not appear to me to be manifestly excessive of the Tribunal to have imposed a period of suspension after rejecting an unlimited deregistration. That is not to say that it must necessarily have required the maximum suspension, but it could hardly be said that the maximum suspension was not appropriately warranted in the circumstances. Whilst opinions may vary, the suspension is not outside an appropriate scale nor is it greater than might reasonably be thought necessary to protect the public and, most importantly in this case, to act as specific and general deterrence to future unprofessional conduct. I do not consider this ground to have been made out.
The Appeal
The practitioner has appealed to this Court advancing each of the complaints raised on the initial appeal. Before coming to deal with those matters, there are two preliminary issues to be addressed.
Right of appeal to the Full Court
The Tribunal is established by Part II of the Medical Practitioners Act 1983 (SA).[3] It is a Tribunal presided over by a Judge in the District Court. Section 66 of the Medical Practitioners Act provides a right of appeal to the Supreme Court:
(1)     Subject to subsection (2), a right of appeal to the Supreme Court shall lie against –
(a)     a refusal by the Board to register or to reinstate the registration of a person under this Act or the imposition by the Board of conditions in respect of his registration; and
(b)     a reprimand or ordered administered or made by the Board or the Tribunal in proceedings under Part 4.
(2)An appeal must be instituted within sixty days of the date of the decision appealed against, but the Supreme Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the appeal should be instituted within that time.
It is to be observed that section 66 does not specify whether the right of appeal lies to the Full Court or to a single judge. The nature of the appeal to the Supreme Court will be discussed below.
[3] The Medical Practitioners Act 1983 (SA) has since been renamed the Medical Practice Act 2004 (SA).
The appeal is also governed by section 50 of the Supreme Court Act 1935 (SA). That section relevantly provides:
(1)Subject to the rules of court an appeal shall lie to the Full Court against every judgment, including every declaratory judgment entered pursuant to section 30B of this Act and any final assessment made thereon, order, or direction of a judge, whether in court or chambers, and also from the refusal of any judge to make any order.
The Solicitor-General submitted that the question of the competency of the appeal determined on the construction of Rule 96.04. That Rule provides:
Where any Act:
(a)vests jurisdiction in a Tribunal over which a Judge of the District Court presides; and
(b)provides a right of appeal from a decision of that Tribunal to the Supreme Court; and
(c)does not specify whether the right of appeal is to the Full Court or to a single Judge,
the appeal shall be to the Full Court unless a Judge, on an application made within seven days of the filing and service of the notice of appeal by any party to the appeal, decides that the subject matter of the appeal is of such a nature as not to warrant the attention of the Full Court in which case the appeal shall be heard and determined by a single Judge.
The Solicitor submitted that Rule 96.04 implicitly denies any right of appeal from the decision of a single judge on an appeal from a Tribunal presided over by a judge of the District Court. The Solicitor argued that the sensible purpose of Rule 96.04 was to avoid the need for more than one judge of the court to spend time considering appeals deemed not to warrant the attention of more than one judge.
In Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria,[4] the High Court considered the rights of appeal addressed by the Supreme Court Act 1986 (Vic). Gaudron, Gummow, Hayne and Callinan JJ, in their joint reasons, observed:[5]
[4] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72.
[5] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72 at [9] and [11]. (footnotes omitted)
The inquiry must begin with the relevant statutory provisions. Whether an appeal lies to the Court of Appeal depends upon the Supreme Court Act 1986 (Vict) and, in particular, s 17(2) of that Act. Section 17(2) provides that:
"Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge."
…Two aspects of s 17(2) should be noticed. First, it provides for appeals from "any determination of the Trial Division constituted by a Judge" and, secondly, it contemplates contrary express provision by the Supreme Court Act or any other Act.
...
Section 17(2) contemplates "express" provision otherwise. There are legislative provisions in which "expressly" is not used as an antonym of "impliedly" but "merely serves to emphasise the generality of [one] provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests". It may greatly be doubted, however, that "expressly" should be understood as being used in s 17(2) in this way. Section 17(2) is a provision which confers jurisdiction upon a court and it is, on that account alone, to be given no narrow construction. Rather, it is to be construed with all the amplitude that the ordinary meaning of its words admits. It follows that the conclusion that there is express provision to the contrary will seldom, if ever, be available in the absence of explicit words excluding the jurisdiction of the Court of Appeal to hear an appeal from any determination of the Trial Division when constituted by a judge.
Kirby J reasoned:[6]
It is a well-established principle of general application that where a legislature confers jurisdiction and powers on a court, it is ordinarily taken to accept that court with its jurisdiction and powers as they are, unless the legislature validly restricts or changes such jurisdiction and powers. In Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW), this Court, in a unanimous exposition of the rule applicable in Australia, said:
"[T]he rule or principle invoked is but an expression of the natural understanding of a provision entrusting the decision of a specific matter or matters to an existing court. It is no artificial presumption.
When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality."
Purpose of supposed limitation: This presumption, therefore, reinforces the language in which s 17(2) of the Supreme Court Act is, in any case, expressed. It strengthens the impression that, by allowing an "appeal" to the trial division, the Victorian Parliament was simply engaging one part of the Supreme Court of the State, with all the incidents that such engagement would normally involve.
...
Analysis of legislative scheme: To commit to virtually absolute finality, unreviewable in the Court of Appeal, orders of a judge of the trial division of the Supreme Court based on nothing more than the constitution of the Tribunal does not, on its face, seem either logical or just. The same might be said of a conclusion that would afford a right to appeal from the order of a judge of the trial division who granted leave to appeal but not from an order of the same judge, possibly at the same time, refusing such leave. Normally, parties who come before courts in Australia enjoy equality of rights. It is not immediately apparent, from the legislation under scrutiny here, why it should be construed to permit an appeal to the Court of Appeal against a determination that goes one way but not one that goes the other. Basic to such a distinction would be a very strong preference for finality; a conclusion that a decision refusing leave to appeal is not the kind of determination that engages an appellate court; or a fear that the contrary view will result in vexatious challenges or in attempts to turn the appeal against the refusal into a complete reargument of the legal merits.
[6] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72 at [53]-[54], [60]. (footnotes omitted)
In Webster v State of South Australia,[7] Doyle CJ made the following observations in regard to section 50 of the Supreme Court Act (SA):[8]
My starting point is that, on its face, s 50(1) of the SCA is expressed in broad terms. The expressions "judgment", "order" and "direction" are evidently intended to cover a wide range of judicial decisions. A provision that confers jurisdiction on a court is to be construed "with all the amplitude that the ordinary meaning of its words admits": Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72 at [11]. Accordingly, there is no reason to give a narrow reading to the expressions found in s 50(1) of the SCA. This is the case even though s 63 of the SCA (set out above) and the provisions of the CLCA referred to above make it clear that s 50(1) has little or no application to decisions made in connection with a trial on information in the Supreme Court, and is of limited application to "criminal causes and matters".
...
On the other hand, the decision of the High Court in Roy Morgan reminds us that, as a starting point, the words of a provision like s 50(1) of the SCA are to be read without any tendency towards restriction. It should also be said that while the ability to renew an application for bail (at common law), and the ability to seek a review under the Act, would in most situations make resort to an appeal unnecessary, there may well be situations in which the availability of a remedy by way of appeal would be beneficial. For example, if judges of the court were to take a different view on an issue of principle relating to the grant of bail, the appropriate way to resolve that, and possibly the only satisfactory way, would be by way of appeal under s 50, unless it were possible to reserve a case or point of law for consideration of the Full Court under s 49 of the SCA. If it is possible to invoke s 49, it is difficult to see why it should not be equally possible to invoke s 50. In short, the occasion to invoke a right of appeal in relation to a decision on bail might be rare, but one should be slow to conclude from that that such a right does not exist.
[7] Webster v State of South Australia (2003) 87 SASR 17.
[8] Webster v State of South Australia (2003) 87 SASR 17 at [29], [45]; see also at [119]-[126] (Gray J).
The Solicitor’s submission that this appeal is not competent should be rejected. The right of appeal is the subject of a statutory provision, which is not to be read down by the rules of court. The approach taken by Australian courts is that delegated legislation made under an Act should not be used for the purpose of interpreting the Act itself. Some authorities have allowed regard to be had to regulations not as an aid to construction of the legislation but as a means of ascertaining what the legislative scheme in its entirety may be. In Webster v MacIntosh,[9] Brennan J, with whom Deane and Kelly JJ agreed, commented:[10]
[T]he intention of Parliament in enacting an Act is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised.
[9] Webster v MacIntosh (1980) 32 ALR 603.
[10] Webster v MacIntosh (1980) 32 ALR 603 at 606.
A reading of Rule 96.04 does not identify any implicit denial of a right of appeal from a decision of the Tribunal pursuant to section 66 of the Medical Practitioners Act.
The appeal to this Court is competent. The words used by the legislature in section 50 of the Supreme Court Act should be given their ordinary and natural meaning. The words should be interpreted broadly and should not be construed to limit the scope of the jurisdiction of the Court in the absence of any express words or by necessary intendment.
The nature of the appeal
To a single judge
Rule 97 governed the appeal to the single Judge. Rule 97.01 defines the scope of rule 97:
Rule 97 applies to all appeals to the Supreme Court other than those which are by any Act, rule or order to be heard by the Full Court, but it is subject to any other rule dealing with such appeals.
Rule 97.17 stipulates that an appeal under rule 97 is to be “by way of rehearing”.
However, the right to appeal a decision of the Tribunal is subject to the terms of section 66(3) of the Medical PractitionersAct, which confines the limits of the appeal:
The Supreme Court may, on the hearing of an appeal, exercise any one or more of the following powers, as the case requires:
(a)affirm or vary the decision by the Board to refuse an application for registration or reinstatement or to impose conditions on the appellant's registration or quash the Board's decision and, in a case where the Board has refused an application, direct the Board to grant the application upon such conditions (if any) as the Court determines and, in a case where the Board has imposed conditions on the appellant's registration, impose such conditions on his registration as the Court thinks fit;
(b)affirm, vary or quash the reprimand or order appealed against, or substitute, or make any finding, reprimand or order that should have been made in the first instance;
(c)remit the subject matter of the appeal to the Board or the Tribunal (as the case may be) for further hearing or consideration or for rehearing;
(d) make any order as to costs or as to any other matter that the case requires.
The practitioner contended that the word “appeal” is a word of flexible meaning.[11] It is capable of describing at least three different kinds of appeal, namely - an appeal strictly so-called, an appeal by way of re-hearing, and an appeal de novo. The practitioner submitted that the appeal hearing provided by section 66 is a hearing de novo and that, as such, this Court is able to determine the appeal on the material before it and is not in any way limited by the decision of the Tribunal.
[11] Wigg v Architects Board of South Australia (1984) 26 SASR 111 at 112.
The terms of section 66 of the Medical Practitioners Act do not support the practitioner’s contention that the nature of this appeal should be a hearing de novo. The Court has discretion to exercise one or more of the powers set out in section 66(3) “according to the nature of the case”. There would be no purpose in the power to remit a matter to the Tribunal pursuant to section 66(3)(b) if it was intended that appeals to this Court were to be heard de novo.
Martin J in Thompkins v South Australian Health Commission[12] addressed the relationship between rule 97 and the right of appeal granted by section 57 of the Controlled Substances Act 1984 (SA). He observed:[13]
… as Cox J pointed out in Wigg v Architects Board of South Australia (1984) 36 SASR 111 at 117, if an examination of the language and policy of the Act granting the right of appeal leads to a conclusion that Parliament intended to create a particular kind of appeal, a Supreme Court rule cannot be applied to define the nature of the appeal. In addition, classifying an appeal as an appeal by way of “rehearing” does not in itself provide an answer as to the nature of the appeal.
[12] Thompkins v South Australian Health Commission [2001] SASC 147.
[13] Thompkins v South Australian Health Commission [2001] SASC 147 at [27].
Cox J in Wigg v Architects Board[14] undertook an examination of the different types of appeal that may be created with respect to the decisions of judicial and administrative bodies. Martin J adopted this analysis in Thompkins v South Australian Health Commission:[15]
[14] Wigg v Architects Board (1984) 36 SASR 111 at 112-113.
[15] Thompkins v South Australian Health Commission [2001] SASC 147 at [28]-[31].
His Honour identified three types of appeal. First, an appeal “strictly so called” in which the question is whether the judgment complained of was right when given and there is no issue of introducing fresh evidence in the appeal court. All that is decided is whether the court below came to the right decision on the material that was before it.
The second type of appeal identified by Cox J is the appeal by way of rehearing. His Honour described this appeal as follows (p 111):
“This is a rehearing on the documents, but with a special power to receive further evidence on the appeal. The latter power is necessary, because the question on a rehearing of this kind is whether the order of the court below ought to be affirmed or overturned in the light of the material before the appeal court at the time it hears the appeal.”
The third type identified is an appeal de novo in which the appeal court hears the matter afresh. Regardless of which party appeals, the appeal is conducted as an original cause and all the evidence is given afresh unless the parties agree to the material used before the original body being used on the appeal. The judge who hears such an appeal will determine the question upon the material presented before the judge and will not be limited in any way by the decision that has been made by the body appealed from.
As Cox J observed (p 113):
“Which type of appeal is given by a particular Act will depend upon its construction. The use of the word “rehearing” will not be decisive, because that is a word to which different meanings have been given ... . It will be a matter of discerning Parliament’s intention from an examination of the legislation as a whole.” (footnotes omitted)

Which of these three kinds of appeal is designated by a statutory provision will depend upon the legislative intention as disclosed by an examination of the legislation as a whole.[16] Both Cox J and Martin J observed that a statutory appeal procedure does not always fit easily into one of the three categories. It is open to the legislature to create any kind of appeal, including an appeal that combines features of one or more of the traditional categories.
[16] Westmite Pty Ltd v Law Society of South Australia (1999) 73 SASR 454 at 455.
Ultimately, the nature of the appeal must depend on the terms of the statute conferring the right.[17] Section 66 of the Medical Practitioners Act confers wide powers upon a single judge of this Court. It provides that the hearing is to be a rehearing on the documents, but with the power to receive further evidence on the appeal.
To the Full Court
[17] Re Coldham; Ex parte Brideson (1990) 170 CLR 267.
As already observed, the appeal to the Full Court against the single Judge is made pursuant to section 50 of the Supreme Court Act. The role of the Full Court is to consider the correctness of the decision of the single Judge. The nature of an appeal pursuant to section 50 has not been the subject of judicial comment. However, some assistance can be gleaned from the following discussion of Lush J in Freeman v Rabinov[18] of comparable Victorian rules of court:[19]
In the rules scheduled to the Judicature Act 1883 of this State, appeal to the Full Court was, as is usual in such rules, described as “by way of rehearing” … and the reception of further evidence was permitted … in substantially the same terms as in the present Order. These rules never became operative. The date on which the Judicature Act was to come into general operation was 1 July 1884, and on 12 May 1884 a different set of rules was made pursuant to powers in the Act, and became the Rules of the Supreme Court 1884. Those rules continued the use of the phrase “by way of rehearing” … and the rule relating to further evidence.
The rules of 1884 were repealed by the Rules of the Supreme Court 1906, which probably embodied a number of amendments made from time to time. In O.58, r.1 of these rules the reference to rehearing had disappeared, but O.58, r4 repeated the rule relating to further evidence. No reported cases have come to our knowledge which throw light on the reasons for the change or on any effect which it was intended to or did have.
In considering the observations of Dixon J in Meakes v Dignan, it is to be noted that he was speaking of appeals to the High Court and that he said, at (46 CLR) p109, in relation to the view that the High Court had power on appeal to make such order as it thought just, whether or not the court appealed from could have made that order: “The course of authority in this Court tends rather against such a wide view of the nature of the appeal. The Court has always refused to hear fresh evidence.”
At p.107 he had quoted a dictum of Jessel, MR in Re Chennell; Jones v Chennell (1878), 8 Ch D 492 at p505 which links the power to receive further evidence with the concept of appeal by way of rehearing. This link also appears in the passage in the judgment of Evatt J referred to above, in which he says that if an appeal is an appeal “strictly so called” then “it is not competent for this Court to take into consideration, for the purposes of exercising its appellate jurisdiction, matters which have occurred since the decision…”.
In the result the rules of this Court appear, by allowing and in some case requiring the consideration of further evidence, and in spite of the omission of the reference to rehearing, to contemplate a wider power than exists in a court hearing an “appeal strictly so called”. To say that the court is “rehearing” cases may be difficult in view of the history of O.58, r.1, but the issue may be one of terms.
[18] Freeman v Rabinov [1981] VR 539.
[19] Freeman v Rabinov [1981] VR 539 at 547-548.
The decision under appeal is that of a specialist tribunal and involves consideration of matters of professional judgment about the appropriate conduct of the practice of medicine. As such, this Court should be careful not to intervene to substitute its own view unless a clear error in the Tribunal’s decision can be demonstrated.
In T v Medical Board of South Australia,[20] Olsson J reiterated difficulties associated with reviewing a decision of a specialist tribunal:[21]
[W]hilst the appellate court must make its own independent assessment of the impact of the evidentiary material, it must nonetheless bear firmly in mind the permanent position of disadvantage in which it stands – as against the primary Tribunal – on questions of credibility. It should only be disposed to interfere with such findings where it is abundantly satisfied that the conclusion reached was plainly inappropriate.
These observations have application to both the appeal before a single judge and to this Court.
[20] T v Medical Board of South Australia (1992) 58 SASR 382.
[21] T v Medical Board of South Australia (1992) 58 SASR 382 at 407-408.
Issues raised on appeal
Procedural fairness
Section 62 of the Medical Practitioners Act provides the principles that are to govern the Tribunal’s hearings:
(1)The Tribunal is not bound by the rules of evidence and may inform itself upon any matter as it thinks fit.
(2)Subject to this Act, the procedure of the Tribunal upon the hearing of proceedings under this Act shall be as determined by the Tribunal.
(3)Upon the hearing of proceedings, the Tribunal shall act according to equity, good conscience and the substantial merits of the case.
Counsel for the practitioner drew the Court’s particular attention to section 62(3) and submitted that in the case of an unrepresented practitioner, the obligation cast by section 62(3) required the Tribunal to warn a practitioner of the risk of cancellation or suspension of registration.
Counsel submitted that this obligation was heightened in the present case by the fact that counsel for the Board did not advocate any particular penalty to the Tribunal, as well as and by the fact that the practitioner was unrepresented. Counsel claimed that the Tribunal did not indicate or provide any sufficient indicator of its intention to cancel or suspend the practitioner’s registration.
This complaint should be rejected. The following review of the proceedings before the Tribunal discloses that counsel has not made out the factual premise of the submission.
At the hearing before the Tribunal, counsel for the Board made specific reference to section 58(3) of the Medical Practitioners Act. That section provides:
If, after conducting an inquiry under this section, the Tribunal is satisfied —
(a)     in the case of a medical practitioner, that he has been guilty of unprofessional conduct, it may, by order, do one or more of the following:
(i)    reprimand the medical practitioner;
(ii)order the medical practitioner to pay a fine not exceeding five thousand dollars;
(iii)     impose conditions restricting his right to practise medicine;
(iv)suspend the registration of the medical practitioner by removing his name from the general register or the specialist register for a period not exceeding one year;
(v)cancel the registration of the medical practitioner on the general register or on the specialist register; or
(b)     in the case of a former medical practitioner, that when he was a medical practitioner he was guilty of unprofessional conduct, it may order him to pay a fine not exceeding five thousand dollars.
Counsel then made the following submission to the Tribunal:
A number of orders are available for the tribunal’s consideration under s.58 and they include suspension or cancellation. In addition to considering those options, there is also the possibility of conditions being imposed either after the suspension or cancellation if you see fit, or without cancellation or suspension to impose these conditions or certain conditions upon a medical practitioner as happened in Zacharia’s case.
For that purpose I produce to the tribunal copies of conditions which I understand Dr Papps is prepared to enter into should the tribunal see fit. I will give the tribunal a moment to read those.
Further, one of the members of the Tribunal, an experienced medical practitioner, specifically requested counsel to indicate what penalty the Board was seeking. That led to the following exchange:
[Member]:I may have missed a point. I’m well aware of the penalties that are available to us under the Act; have you actually yet made a submission as to what penalty we shall impose? Not condition on practice but penalty?
[Counsel]:Insofar as I’m instructed to say this: that a simple reprimand is not appropriate; that it is a matter appropriate for the board to consider a suspension at the very least of Dr Papps’ registration, that if you were of a mind to suspend, that conditions of this type would be appropriate when he returned to practise, but if you were not of a mind to suspend, then these conditions will be an appropriate condition placed upon his licence in any event, so that we can operate on a rehabilitative frame of mind I suppose.
I’m not instructed to put specifically to the tribunal what sentence is appropriate. That’s a matter for the tribunal.
[Member]:That was really the point I was making. It has been the practice in this tribunal for the medical board’s counsel to make specific recommendations on this matter and you are not making such a recommendation.
[Counsel]:I am not making such a recommendation. I leave that to the discretion of the board.
His Honour: You say whatever we do, that the conditions should be added either after or straightaway.
[Member]: That’s the board’s decision.
Later the presiding member of the Tribunal, a District Court Judge, had the following exchange with the practitioner:
His Honour:  Speaking for myself, do you want to put some submissions as to what we should do?
Dr Papps:When we had the meeting with Mr Illingworth the other day with regard to the question with the surgery and the rooms and that nature, I offered the most succinct and easiest way to expedite all that was to offer to conduct any further surgery at a day surgery, or some such other place.
His Honour:  If I could short cut this and help you? We’ve got those suggested conditions by Mr Illingworth.
Dr Papps:                  Yes, I’ve agreed to those.
His Honour:  You’ve got, under the Act, the alternatives open to us. Do you want to put to us what you say we should do? This is your chance to put your point of view as to what we should do.
Dr Papps:I’ve agreed to the conditions and I think they were arrived at in a joint way. There was no talk of any other imposition.
His Honour :              No, but we make the decision.
Dr Papps:                  Yes, that was pointed out to me, yes.
His Honour:  What do you want to put to us about that? Mr Illingworth’s not said to us we should go one way or the other as far as suspension or cancellation, he’s left that to us. Do you want to put something to us? Do you want to put a submission to us about that?
Dr Papps:                  I don’t want to be hung, if that’s [sic] you’re asking me?
His Honour:                No, we won’t do that.
Dr Papps:As I indicated, I’ve been penalised, I believe, because I didn’t realise how a partial registration or a conditional licence is just so damming it virtually shuts all the doors and they’ve certainly been shut. And it came to the point where I was virtually ready to agree to anything, just so that we could – or that I could get this thing moving, albeit with some other conditions, but at least the ball would start to roll again, but certainly it’s been going backwards for the last – since June 2001. I’m not getting any younger, but I have lost that period of time if I was to proceed with the occupational medicine training, but I’m really at the mercy of the tribunal, as far as anything else goes.[22]
[22] Transcript of Proceedings 11 October 2004, 67-68.
This exchange discloses that the Tribunal was specifically seeking submissions from the practitioner on the issue of suspension or cancellation. It is evident that the Tribunal was contemplating either of those orders to be made in addition to the conditions agreed to by the practitioner.
Having reviewed the above passages of the Tribunal proceedings and other references from the transcript, the single Judge concluded:
On the basis of all of these references, I am satisfied that the practitioner could have been under no illusion about the significant risk of the Tribunal deciding to suspend or cancel his licence, and I am satisfied that he in fact directed his submissions as to why that should not be done. Further, this is in the context where the practitioner had previously been the subject of an earlier Board hearing in which a very firm indication was given to him of the seriousness of his conduct. I therefore reject these grounds of appeal.
The Judge was right to reject this complaint. The passages extracted above clearly demonstrate that the practitioner was put on notice of the possibility of suspension.
The medical specialist’s testimony
Counsel for the practitioner complained that the Tribunal had implicitly relied on a medical specialist report in circumstances where it should not have done so. The practitioner disputed the contents of the report. Counsel drew attention to passages in the proceedings before the Tribunal that, counsel said, both indicated the Tribunal members’ interests in the topic and demonstrated the Tribunal members’ reliance on the specialist’s view.
Counsel for the practitioner relied upon the following passage in the reasons for decision:
Before turning to that question, there is a matter which the Tribunal is further concerned about. As you have carried on practice in the area of skin cancer and the removal of suspicious lesions, it concerns the Tribunal as to what training you have received in the diagnosis of skin disorders, and in the performance of relevant surgical procedures. We are concerned about the details of such training, if any.
Although the specialist report which we have referred to earlier is not relied upon for the purposes of our decision, nevertheless there are concerns in that report about your diagnostic accuracy and medical knowledge. It concerns the Tribunal as to what steps have been taken in relation to that aspect of your practice. As that specialist report mentioned earlier, has raised doubts about those, although it is not a factor in our present decision, we also raise that matter to the attention of the Board. We point out, however, that has nothing to do with our present decision, because if there is a lack of training or expertise in that field which should preclude you from further practice, that is not the basis of the present complaint.
Contrary to the practitioner’s submissions, these observations expressly confirm that the Tribunal did not rely on the specialist report. The submission that notwithstanding that remark, regard was had to the specialist report should be rejected. A matter had arisen in the course of the Tribunal hearing that raised concerns for the Tribunal and caused the matter to be referred for the attention of the Board. This was an entirely appropriate course for the Tribunal to have followed. This submission should be rejected.
Manifestly excessive
Counsel for the practitioner submitted that the suspension was manifestly excessive having regard to the Tribunal’s alleged failure:
-to give sufficient consideration to what public interest would be served by the practitioner’s suspension for the maximum period which could not otherwise be served by another penalty or penalties;
-to consider the imposition of other sanctions, particularly in combination (e.g. a reprimand plus a fine) in addition to conditions;
-to give sufficient weight to the fact that the practitioner was not accused of fraud, dishonesty or breach of any position of trust;
-to give sufficient weight to the detriment that the practitioner would suffer from any period of suspension;
-to give sufficient weight to the fact that the practitioner had pleaded “guilty” at the earliest possible stage (that is, on the first day of the hearing);
-to take into account that he had co-operated with the Board and the Tribunal throughout the whole course of the hearing;
-to take into account that he had negotiated to enter into an agreement with the Board in that he would submit to an order from the Tribunal in relation to conditions on his practice; and
-to take into account that in the absence of a proper inquiry into the allegations contained in the complaint, the Tribunal ought to have exercised care in accepting the truth of all of the allegations put by the Board.
Counsel stressed that there was no element of dishonesty, let alone fraud on the part of the practitioner. Counsel pointed out that the practitioner was not accused of any improper relationship with a patient, nor of any other activity that might have involved a breach of trust. Counsel said that the practitioner was essentially caring towards his patients but was simply over-stretched and disorganised.
In all the circumstances, having regard to the extent of the practitioner’s unprofessional conduct and to the previous warning to rectify his practice, the complaint that the suspension was a manifestly excessive penalty should be rejected. The overall conduct of the practitioner demonstrates a serious disregard for the well-being of his patients. It also discloses a disregard for the authority of the Board. The practitioner’s conduct demonstrates a deep lack of understanding of the proper role of a medical professional when dealing with rehabilitation bodies and with those concerned with medico-legal claims. Further, the practitioner demonstrated an incapacity or an unwillingness to organise his practice properly. The above conduct, when taken together, represents serious professional misconduct.
It has not been demonstrated that the Tribunal made any error of principle, nor has it been demonstrated that the Tribunal either had regard to any immaterial considerations or failed to have regard to any material considerations. The orders made were well within the Tribunal’s discretion. As earlier observed, the paramount concern of the Tribunal is the protection of the public. Suspension for twelve months, together with the conditions imposed on any subsequent practice, were appropriate to protect the public.
Conclusion
This appeal should be dismissed.
VANSTONE J: I agree that the appeal should be dismissed for the reasons given by Gray J.