Soo v Physiotherapy Board of Australia - [2015] SADC 30

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SOO v PHYSIOTHERAPY BOARD OF AUSTRALIA
[2015] SADC 30
Judgment of His Honour Judge McCusker
6 March 2015
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS
Appeal from South Australian Health Practitioners Tribunal to District Court - Complaint of professional misconduct before the Tribunal upon referral under s193 - Preliminary argument by appellant that proceedings required to be taken before Court of summary jurisdiction and that such proceedings time barred by s52 Summary Procedures Act 1921 - Preliminary argument rejected by Tribunal - Appellant invokes an appeal under s23 Health Practitioners Regulation National Law (South Australia) Act 2010 to District Court - Respondent challenges District Court jurisdiction - Whether appeal competent - Examination of legislative structure - Interpretative approach required to Health Practitioners Regulation National Law (South Australia) Act 2010 - Effect of codification - Purposes of the legislation - Meaning to be given to "a decision made by the Tribunal" in s23 - Appeal competent - Substantive argument rejected - Appeal dismissed.
Health Practitioner Regulation National Law (South Australia) Act 2010 ss6,7,16,18,19,23,24,25: Schedule 2, s3. s5,s117(3), s190, s193, s196, s242, s243, Schedule 7 s1, s3, s4, s7; District Court Act 1991 s8(b), referred to.
Adelaide Assemblers Ltd v Kutos and Freeway Motors Ltd (1974) 9 SASR 102; Craig v Medical Board of South Australia (2001) 79 SASR 545; The Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Ors (2000) 203 CLR 194; R v Bleby, Olsson and Stanley; Ex parte South Australian Public Service Board (No 1) (Teachers) Case (1974) 41 SAIR 887; DJL v The Central Authority (2000) 201 CLR 226; Grassby v The Queen (1989) 168 CLR 1; Medical Board of SA v N, JRP and Anor (2006) 93 SASR 546; R v Forbes; Ex parte Bevan (1972) 127 CLR 1; Director-General of Social Services v Chaney (1980) 47 FLR 80; Legal Practitioners Conduct Board v Colton (2012) 113 SASR 467; Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321; Maughan Thiem Auto Sales Pty Ltd v Cooper [2013] FCAFC 145; Advertiser Newspaper v Despoja (1990) 159 LSJS 75, considered.

SOO v PHYSIOTHERAPY BOARD OF AUSTRALIA
[2015] SADC 30

On 11 June 2014 a complaint was made by the Physiotherapy Board of Australia against the appellant. It was made in the South Australian Health Practitioners Tribunal (“the Tribunal”) and in compliance with Form 1. When the matter came before the Tribunal the appellant’s counsel took a preliminary point. He argued the complaint was alleging an offence within the meaning of s 5 of the Summary Procedures Act 1921 and the matters complained of were therefore time barred by s 52 of that Act.
That submission was rejected by the Tribunal in reasons delivered on 19 September 2014. The Tribunal noted the complaint alleged professional misconduct within the meaning of s 5, Schedule 2 of the Health Practitioners Regulation National Law (South Australia) Act 2010 (“National Law”). Section 193 of the National Law required the Board to refer to the Tribunal any matter the Board reasonably believed disclosed professional misconduct. The Tribunal further noted s 242. This required proceedings for an offence were to be by summary proceeding before a court of summary jurisdiction.[1]
[1] i.e. under the Summary Procedures Act 1921 (SA).
The Tribunal ruled:[2]
The National Law created the Tribunal (s 8). The jurisdiction is conferred by s 16 of the National Law. The jurisdiction includes the hearing and determination of disciplinary proceedings brought by the National Health Practitioners Boards and the hearing of administrative appeals against decisions of the Boards and Panels regarding the registration and regulation of health practitioners and students under the National Law. …
Following a hearing of a matter referred under s 193 the responsible Tribunal can make decisions pursuant to s 196 of the National Law. …
Section 242 of the National Law has no application to this proceeding before the Tribunal. Section 193 Schedule 2 of the National Law requires the complainant to refer a matter about a registered health practitioner to the Tribunal if it reasonably believes the practitioner has behaved in a way that constitutes professional misconduct.
[2] At paras [19], [22], [26].
The appellant’s argument was therefore dismissed.
By Notice of Appeal dated 9 October 2014 the appellant challenged that decision of 19 September 2014. In her appeal she argued that the procedures in the circumstances were governed by the Summary Procedures Act 1921. That was because in character the proceedings alleged an offence against the National Law. She sought an order that the proceedings stand dismissed under s 52 of the Summary Procedures Act 1921 as they were issued outside the time limit of two years. This was then listed before this Court.
The appellant’s contentions
The key point advanced by the appellant on the appeal was that the matters alleged in the proceedings taken on 11 June 2014 in accordance with Form 1 could be properly categorised as proceedings in relation to an offence against the Act. If it can be treated as an offence then, so the argument ran, it must be treated as an offence and as such must be taken under the Summary Procedures Act 1921.
A quite contrary argument was also submitted by the appellant. That is that the Tribunal had the sole jurisdiction in relation to proceedings and this excluded the Magistrate’s Court.[3] That and the lack of distinction between disciplinary proceedings and proceedings for an offence in s 196 supported the proposition that proceedings referred to the Tribunal under s 193 were proceedings for an offence.[4] An assertion that somehow the Tribunal inherited the time limits in s 52 of the Summary Procedures Act 1921 was not stated but appears implicit in the argument.[5]
[3] Appellant’s Submissions para [15].
[4] Appellant’s Submissions para [20].
[5] Appeal tr pp 4, 13.
The indicative legislative provisions: the Health Practitioner Regulation National Law (South Australia) Act 2010
Section 6
The South Australian Health Practitioners Tribunal is declared to be the responsible Tribunal of this jurisdiction for the purposes of the Health Practitioner Regulation National Law (South Australia).
…
Section 7
(1)    The following Acts of this jurisdiction do not apply to the Health Practitioner Regulation National Law (South Australia) or to instruments made under that Law:
(a)the Acts Interpretation Act 1915;
…
Section 16
The Tribunal will have the jurisdiction conferred on it by or under this Act or the Health Practitioner Regulation National Law (South Australia).
…
Section 23
(1)    An appeal lies to the District Court against a decision made by the Tribunal.
(2)    An appeal against a decision of the Tribunal may be instituted by a party to the proceedings before the Tribunal.
(3)    An appeal must be instituted within 1 month of the date of the decision appealed against.
Section 24
(1)    Where an order has been made by the Tribunal, and the Tribunal or the District Court is satisfied that an appeal against the order has been instituted, or is intended, it may suspend the operation of the order until the determination of the appeal.
(2)    Where the Tribunal has suspended the operation of an order under subsection (1), the Tribunal may terminate the suspension, and where the District Court has done so, the Court may terminate the suspension.
Section 25
(1)    The District Court may, at any time, on application by a registered health practitioner, vary or revoke a condition imposed by the Court in relation to the person's registration under the Health Practitioner Regulation National Law (South Australia).
(2)    A National Board, a panel or the Minister are entitled to appear and be heard on an application under this section.
Schedule 2 (Health Practitioner Regulation National Law) (“the National Law”)
Section 3
…
(2) The objectives of the national registration and accreditation scheme are—
(a)to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and
…
(3)    The guiding principles of the national registration and accreditation scheme are as follows—
(a)the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
…
Section 5
…
adjudication body means—
(a)    a panel; or
(b)    a responsible tribunal; or
(c)    a Court; or
(d)    an entity of a co-regulatory jurisdiction that is declared in the Act applying this Law to be an adjudication body for the purposes of this Law.
…
health panel means a panel established under section 181.
…
performance and professional standards panel means a panel established under section 182.
…
professional misconduct, of a registered health practitioner, includes-
(a)    unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)    more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)    conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
…
responsible tribunal means a tribunal or court that—
(a)    is declared, by the Act applying this Law in a participating jurisdiction, to be the responsible tribunal for that jurisdiction for the purposes of this Law as applied in that jurisdiction; or
…
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes—
(a)    a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
…
Section 117(3)
(This section prohibits knowingly or recklessly claiming or holding out that another person is a registered health practitioner or qualified to practice when not and imposes a maximum penalty of $30,000.00 for individual breach or $60,000.00 for corporate breach. It then has the following addendum.)
Note- A contravention of this subsection by a registered health practitioner may also constitute unprofessional conduct for which health, conduct or performance action may be taken.[6]
[6] Similar addendums appear in respect to the subject of title protections of registration in recognised specialties in sections 118, 119.
…
Division 11-Panels
…
Section 190
A panel must stop hearing a matter and require the National Board that established the panel to refer the matter to a responsible tribunal under section 193 if, at any time—
(a)    the practitioner or student the subject of the hearing asks the panel for the matter to be referred to a responsible tribunal under section 193; or
(b)    if the subject of the hearing is a registered health practitioner—
(i)the panel reasonably believes the evidence demonstrates the practitioner may have behaved in a way that constitutes professional misconduct; or
(ii)the panel reasonably believes the evidence demonstrates the practitioner's registration may have been improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular.
…
Section 193
(1)    A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if—
(a)for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason—
(i)the practitioner has behaved in a way that constitutes professional misconduct; or
(ii)the practitioner's registration was improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular; or
(b)for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal.
…
Section 196
(1)    After hearing a matter about a registered health practitioner, a responsible tribunal may decide—
(a)the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b) one or more of the following—
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii)the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii)the practitioner has behaved in a way that constitutes professional misconduct;
(iv) the practitioner has an impairment;
(v)the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board that registered the practitioner information or a document that was false or misleading in a material particular.
(2)   If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following—
(a)   caution or reprimand the practitioner;
(b)   impose a condition on the practitioner's registration, including, for example—
(i)a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv)a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c)require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d)   suspend the practitioner's registration for a specified period;
(e)   cancel the practitioner's registration.
…
Section 242
A proceeding for an offence against this Law is to be by way of a summary proceeding before a court of summary jurisdiction.
Section 243
(1)    If a person's behaviour constitutes an offence against this Law or another Act and constitutes professional misconduct, unsatisfactory professional performance or unprofessional conduct under this Law—
(a)the fact that proceedings for an offence have been taken in relation to the behaviour does not prevent proceedings being taken before an adjudication body under this Law for the same behaviour; and
(b)the fact that proceedings have been taken before an adjudication body under this Law in relation to the conduct does not prevent proceedings for an offence being taken for the same behaviour.
The interpretive provisions of the National Law
Schedule 7
Part 1-Preliminary
Section 1
The application of this Schedule may be displaced, wholly or partly, by a contrary intention appearing in this Law.
…
Section 3
Every section of this Law has effect as a substantive enactment without introductory words.
Section 4
(1)    The heading to a Part, Division or Subdivision into which this Law is divided is part of this Law.
(2)    A Schedule to this Law is part of this Law.
(3)    Punctuation in this Law is part of this Law.
(4)    A heading to a section or subsection of this Law does not form part of this Law.
(5)    Notes included in this Law (including footnotes and endnotes) do not form part of this Law.
…
Section 7
(1)    In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation.
(2)    Subclause (1) applies whether or not the purpose is expressly stated in this Law.
Applicable considerations for interpretation
The purpose of reciting the provisions of the State Act and the adopted National Law is to provide an overview. That overview provides context and indicates how the scheme of the Act is framed. Such considerations aid the task of interpretation.
Besides the specific sections of the National Law regarding how the Act is to be interpreted especially contained in Schedule 2 Division 7, assistance may also be found by consideration of the type of legislation this is. The legislation does not merely seek to consolidate Acts. It has the purpose of providing a consistent standard for the regulation of health practitioners throughout Australia.[7] It amounts in my opinion to a codification.
[7] See s 7 National Law (NSW excepted).
The consequences of this are described by the Full Supreme Court in Adelaide Assemblers Ltd v Kutos and Freeway Motors Ltd: [8]
… Where a piece of legislation speaks only in general terms and does not descend to detail, it is much easier for a court to be able to interpret the Act liberally, and to import terms which it is reasonable to believe that Parliament would have included expressly if it had directed its attention to the particular problem. But where an Act is in the nature of a code, and particularly where, as in this case, it is a code which expressly provides for contribution in some circumstances, but not in those which have actually occurred, then it is much more difficult for a court to read general words such as those now under consideration as endowing the court with the particular jurisdiction which the respondent … seeks to have imported. …
[8] (1974) 9 SASR 102 at p 107.
Legislation regulating the medical profession was discussed by the Court in Craig v Medical Board of South Australia.[9] This case was referred to by counsel on the appeal. It concerned the then Medical Practitioners Professional Conduct Tribunal and a complaint against a psychiatrist alleging an inappropriate relationship with a vulnerable patient, albeit no sexual contact was involved. A finding of unprofessional conduct was made against him. The issue on appeal was the sanction imposed as a result by the Tribunal and particularly the suspension of his right to practice for six months.
[9] (2001) 79 SASR 545.
Doyle CJ made the following observations:[10]
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.
..
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.[11]
[10] Craig at paras [41], 45].
[11] See also s 3(2)(a) and (3) National Law, Dr Freckleton SC article “Regulation of Health Practitioners: National Reform in Australia” Vol 18/2 December 2010 Journal of Law and Medicine.
The appellate jurisdiction invoked

The respondent has challenged the right to appeal the order contending the Tribunal has not made a decision of the kind contemplated in the legislation as yet.[12] The appellant on the other hand argues the refusal to dismiss the proceedings is a decision for the purposes of creating the right of appeal.[13]
[12] Appeal tr p 3.
[13] Appeal tr p 4.
It is accepted that this Court does not have a supervisory jurisdiction.[14] Moreover any appeal is a creature of statute and the extent of permitted interference is as specified in the Act.[15] But the ultimate question here it seems to me is whether the provisions of s 23 contemplates an appeal to the District Court in the given circumstances. That is whether the refusal of the application asking that the proceedings be disposed of for being out of time can give a right of an appeal. Or whether appeals are restricted to decisions which finally dispose of all issues between the parties and specified in the Act, in particular s 196.
[14] Appeal tr p 15, District Court Act 1991 s 8(b).
[15] The Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220, Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at paras [68], [69].
It is plain that the Tribunal is restricted to making a decision, “after hearing a matter about a registered health practitioner”.[16] It is further restricted in what it can ultimately decide. Its decisions are restricted to one of the five set out in s 196(1)(b). It has no other mandate. Having made one of those five decisions it is then enabled to make one of the consequential decisions described in subsection (2). The “decision made by a Tribunal”, the respondent would have it, referred to in s 23(1) suggests a reference to one of the decisions in s 196(1). If so, that would make this an attempt to invoke a non-existent right of appeal.
[16] Section 196(1).
On the other hand there are other “decisions” of the Tribunal contemplated by the legislation. The Tribunal may award costs.[17] It is given powers under ss 18 and 19 and it may make decisions regarding the exercise of those powers. It will on occasions make a decision on its jurisdiction.[18] Moreover it will be presumed to have by implication the powers reasonably necessary to enable it to act effectively in the exercise of its jurisdiction and in that regard it has power to make decisions.[19] That is the power to regulate its own procedures and ensure fairness in investigative and trial procedures.[20] Whether this extends to the power to grant stays to prevent abuse of its processes is contentious.
[17] Section 195.
[18] R v Bleby, Olsson and Stanley; Ex parte The South Australian Public Service Board (No 1) (Teachers) Case 1974 41 SAIR 887 per Bray CJ at 894.
[19] DJL v The Central Authority (2000) 201 CLR 226 at paras [25] – [26].
[20] Grassby v The Queen (1989) 168 CLR 1 at 17.
In Medical Board of SA v N, JRP and Another[21] the issue was whether the Tribunal, as then constituted, had power to stay the hearing of a complaint on the grounds of abuse of process. The complaint alleged four counts of unprofessional conduct against a doctor. The Tribunal was vested with similar powers as are found in ss 18 and 19 of the National Law.[22] In addition, as here, there were powers to make orders as to costs.
[21] (2006) 93 SASR 546
[22] At para [17].
Debelle J emphasised the distinction between inherent jurisdiction and implied jurisdiction described inter alia by Menzies J in R v Forbes and Another; Ex parte Bevan and Others.[23] The question was whether the power was in the circumstances necessary for the effective exercise of the jurisdiction expressly conferred on the Tribunal. That power was confined to so much as can be derived by implication from the statutory powers conferring a particular jurisdiction.[24] Debelle J made the following remarks that are valuable to this examination:[25]
When the Tribunal is called upon to enquire into the subject matter of a complaint alleging unprofessional conduct on the part of a medical practitioner, it must hear and determine whether the practitioner is guilty of unprofessional conduct. The nature of the proceedings is quasi-criminal. As with other kinds of civil or criminal proceedings, there is potential for an abuse of process. …
…
… The power to order a stay on the ground of abuse of process is, therefore, a power which is necessary for the proper exercise of the jurisdiction to hear and determine the complaint …
[23] (1972) 127 CLR 1 at 7.
[24] At para [24].
[25] At paras [29], [32].
The majority came to a contrary conclusion. However while concluding it was not permissible to imply a power to stay proceedings as contended and though certain aspects of the legislation there indicated that Parliament did not consider the Tribunal would be a body with wide ranging implied powers, the fact of implied powers at least to some extent appears to have been acknowledged. The point is that if there are those powers then those powers conjure decisions, albeit mainly of a procedural nature. But if so the “decisions” the Tribunal is capable of making must be beyond those provided for in s 196.
The meaning of “decision” in section 23
This was a matter of controversy between counsel. The appeal rights are created by s 23. The meaning to be given to the word “decision” is not subject to any extending definition.
Counsel for the respondent relied in the main on the decision of Deane J, as he then was, in Director-General of Social Services v Chaney.[26] His Honour, describing the word as “a word of indeterminate meaning” stated:[27]
… In some contexts, [‘decision’] can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word ‘decision’ may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word ‘decision’ has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate (see, for example, Registrar of Workers' Compensation Commission v. FAI Insurances Limited (1977) 1 NSWLR 422) or be limited to referring only to a determination which effectively disposes of the matter in hand (see, for example, Winter v. Winter (1933) NZLR. 289 at p. 295 and Penniel v. Driffill (1980) WAR 31 at p. 32).
[26] [1980] FCA 87.
[27] At p 100.
The majority, which included Deane J, in Chaney went on to decide that an appeal under s 44(1)(i) of the Administrative Appeals Tribunals Act 1975 (Cth) lay only from a decision of the Tribunal “which constitutes the effective decision or determination of the application for review”.[28] Chaney was approved by the court in Legal Practitioners Conduct Board v Colton[29] as well as on many other occasions.[30] Reference was also made by the respondent’s counsel to Advertiser Newspaper v Despoja.[31] In that case Jacobs J referred to the impediment that would occur to the proper conduct of hearings if proceedings were fragmented by multiple appeals. He stated:
This Court ought not encourage or permit a multiplicity of proceedings and appeals more particularly when the Tribunal had indicated that apart from the question of its jurisdiction it saw no merit in the proposed challenge to the Review Officer’s ruling.[32]
[28] At p 181.
[29] (2012) 113 SASR 467 at para [15]
[30] See Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 at 335, Maughan Thiem Auto Sales Pty Ltd v Cooper [2013] FCAFC 145 per Katzmann J at paras [19]-[24].
[31] (1990) 159 LSJS 75.
[32] See also Matheson J at pp 79-82.
As the cases consistently state, the meaning of the word “decision” is determined by reference to context.[33] I am persuaded that the view expressed by Deane J in Chaney’s case determines the meaning to be given to the word where it used in s 23. That is that the word “decision” is a reference to a decision of the Tribunal which constitutes the effective decision or determination of the application brought. Or in the terms described by Mason CJ in Bond involves the final or operative and determinative decision at least in the practical sense of the issue of fact falling for consideration and a matter of substance rather than procedure.[34]
[33] Maughan Thiem at para [20].
[34] Bond at p 337.
I am encouraged in that view by the fact that the appeal must be instituted within one month of the date of the decision appealed against. This indicates the substantive decision and not something of an interlocutory or procedural nature. It also seems to me that the concerns of s 24 are those matters finally dealing with the substantive issue of the practitioner’s status and the existence of an order proscribing or limiting the practitioner in the pursuit otherwise of his or her profession. Or indeed not doing so.
The decision under appeal here is however not one of procedure. Nor can it be said to be interlocutory. It claims, irregardless of whether the claim has any validity or not, that the Act indicates where an offence is alleged then proceedings must be taken under the Summary Procedures Act 1921 or adopt that provision’s time limit. Assuming for a moment that such an argument was right, that would resolve the substantive issue because the matter would be time barred. Because the issue is one of that type it can hardly be that if the appellant succeeded it would form an appealable decision but if the respondent succeeds it would not. It seems to me logically if the decision is of that particular type, then the right to appeal exists under s 23. I find that it is therefore a decision of the kind within the contemplation of “a decision made by the Tribunal” referred to in s 23(1). The respondent’s submission to the contrary is rejected.
The appellant’s substantive argument
I now deal with the appellant’s central argument. This argument should be rejected for essentially the same reasons it was rejected by the Tribunal. There is no foundation for saying that if the facts relied on by the complaint could also constitute an offence under the Summary Procedures Act that either the time limitation under the latter Act applies or that the proceedings can only be taken in a court of summary jurisdiction. Counsel for the appellant was not able to refer to any substantive authority or principal to support that contention.
The progression of matters from notification through to referral to the Tribunal is specified in the provisions. The legislation requires the National Board to refer any matter to the Tribunal if it reasonably believes, on the basis of a notification or for any other reason, that the practitioner has behaved in a way that constitutes professional misconduct.[35] The Board has no other option. The Tribunal is required to hear the matter so referred.[36] It must determine the matter and then make one of the orders provided for.[37] The purposes of such proceedings in the Tribunal as detailed hereinbefore are indicated by the authorities and commentaries. They are of an entirely different character from proceedings under the Summary Procedures Act and serve an altogether different purpose.[38]
[35] Section 193(1).
[36] Section 196.
[37] Section 196(2).
[38] Craig v Medical Board (above cited) per Doyle CJ at paras [41], [45]. See also Dr Freckelton SC article “Regulation of Health Practitioners: National Reform in Australia” vol 18/2 December 2010, Journal of Law and Medicine pp 213, 217.
If there was any remaining uncertainty about the matter it is resolved by s 243. That makes abundantly clear that those proceedings in the Tribunal and the proceedings under the Summary Procedures Act are not in any way contradictory or prevented, one by the other. A proceeding for an offence is a matter both of substance and form. On the basis both of substance and of form this is not a proceeding for an offence. What may or may not apply if it was a proceeding for an offence has no application. The argument is misconceived.
Order
The appeal is dismissed.