EDELSTEN v WARD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and SHELLER JJA 7 December 1993, 19 May 1994, 23 June 1994 [1994] NSWCA 87 FACTS: The appellant was found guilty of seven complaints made against him by the Medical Tribunal pursuant to Div 3 of PtA of the Medical Practitioners Act, and failed in an appeal against those findings. Subsequently, the Tribunal ordered removal from the register, suspension from practice, and fines, orders which the appellant appeals under s32R and s32U(1)(b) of the Medical Practitioners Act, 1938. The appellant sought to introduce fresh evidence to demonstrate inter alia that the finding that he was not of good character was flawed. HELD: (1) S32U(1)(b) offers only a limited right of appeal. With s75A of the Supreme Court Act it regulates an appeal to the Court of Appeal under the Act. As an appeal with respect to points of law was dismissed, this appeal is limited to the exercise of the Tribunal's power to make orders, where the Tribunal assumes its findings of fact are correct. It proceeds by way of rehearing. S75A(7) and s75A(8) allow fresh evidence to be adduced in limited circumstances, but the findings of fact with respect to all but the making of orders must be accepted in the absence of perjury, fraud or the like. On the basis of the complaints found proved the orders are justified. ORDERS: (1) Appeal dismissed with costs. Mahoney JA I agree with Meagher JA and his conclusion that the appeal in this proceeding should be dismissed with costs. In deference to what has been put by and for Dr Edelsten, I shall indicate generally the reasons why I am of this opinion. Seven complaints were made against Dr Geoffrey Walter Edelsten. The hearing of them occupied a considerable time. On 27 April 1988 the Medical Tribunal of New South Wales found each of the complaints proved. Before orders were made, Dr Edelsten appealed to this Court against the decision or decisions which the Tribunal then made on the ground that they involved errors of law. On 11 November 1988 this Court dismissed that appeal and remitted the proceedings to the Tribunal "to perform its function under s32R of the Medical Practitioners Act 1938". On 29 November 1988 the Tribunal made a number of orders, involving the removal of Dr Edelsten's name from the register of medical practitioners, the imposition of a fine of $ 10,000 and the fixing of times after which he might apply to be registered. Dr Edelsten lodged a notice of appeal in respect of what the Tribunal did. The notice of appeal was amended on more than one occasion. The court has dealt with the matter upon the basis of a notice of appeal entitled "Further and Amended Grounds of Appeal". The appeal has been brought before the court on a number of occasions but, for reasons to which reference need not now be made, Dr Edelsten has claimed that he has not been in a position to proceed with the hearing of it. The appeal finally came before this Court for hearing on 7 December 1993. Dr Edelsten appeared for himself. 2 UNREPORTED JUDGMENTS The Court reserved its decision on the appeal. Subsequently, Dr Edelsten requested that the Court delay giving its judgment on the appeal. On 15 March 1994, a notice of motion was filed seeking leave to adduce further evidence in the appeal. The orders sought were: "1. The appellant be allowed to adduce fresh evidence concerning the exercise by the first respondent of the power under s32R of the Medical Practitioners Act 1938. 2. The appellant be allowed to adduce fresh evidence to assist this Honourable Court to make such orders as it thinks proper having regard to the merits of the case (including the fresh evidence and the public welfare pursuant to s32U(3)(b) of the Medical Practitioners Act 1938)." I shall, in this judgment, deal both with the notice of motion and the appeal. 1. THE LEGAL BASIS OF THE APPEAL: It has been agreed that the appeal is governed by the provisions of the Medical Practitioners Act 1938 and in particular s32U of that Act. That Act has now been superseded by other legislation. However, it is accepted, in my opinion correctly, that, because of the transitional provisions, the provisions of the 1938 Act apply. S32U provides that a person against whom a complaint has been referred to the Tribunal may appeal to the Supreme Court against: "(a) a decision of the Tribunal with respect of a point of law; or (b) the exercise of any power under s32R by the Tribunal...". S32R is the section which authorises the Tribunal, having found the subject matter of a complaint to have been proved, to make orders of the kind which, on 29 November 1988, the Tribunal made. In relation to such an appeal, s32U provides: "32U. (5) An appeal under this section with respect to a point of law may be made during an inquiry conducted by the Tribunal or within the prescribed time. (6) If an appeal with respect to a point of law is made under this section and an inquiry conducted by the Tribunal has not been completed: (a) the inquiry before the Tribunal shall not continue until the appeal has been disposed of; and (b) the Tribunal, on recommencing the inquiry, shall not make any decision that is inconsistent with the Supreme Court's determination with respect to the point of law." As I have said, Dr Edelsten first brought an appeal to this Court "with respect to a point of law" and that appeal was dismissed. His present appeal is brought following the exercise by the Tribunal of the powers under s32R. At the commencement of the appeal and subsequently on the hearing of the motion, questions arose as to the manner in which the appeal should be conducted and the evidence upon which it was to be determined. In order to indicate the course which the court took on the hearing of the appeal and for the purposes of the motion, I shall consider first: (a) the relevant provisions of s32U; and then (b) refer to what is to be done pursuant to them. (a) The Act requires that the Tribunal determine whether the complaint referred to has been made out and then make such order under s32R as it considers appropriate. The procedure which it should follow for this purpose is, within appropriate limits, within the power of the Tribunal to determine. It may hear the whole of the evidence, both as to the complaints and as to the orders to be made, and then make findings as to the complaints and the appropriate orders. Alternatively, it may first consider the complaints and determine, on the evidence brought in respect of them, whether they have been made out. If they have, it may URJ EDELSTEN v WARD (Mahoney JA) 3 come separately to the exercise of the s32 power. That power is to be exercised in the light of the evidence and other material then available to the Tribunal. Ordinarily that will consist of the findings made by the Tribunal in respect of the complaints and such additional evidence as may properly be before it in relation to the exercise of the s32R power. In the present case, the procedure followed by the Tribunal was of this second kind. It is therefore necessary to determine the powers of the Tribunal at that stage and the evidence on which it may then act. (I am dealing with the matter on the basis that the Tribunal has made final findings on the complaints and that the only matter to be dealt with by it is the making of the orders in the exercise of the s32R power. It is possible that, in special cases, other issues may arise. However, I shall confine myself to the class of case here in question.) Where, in such a case, the Tribunal comes to exercise the s32R power, it must of course do so on the basis that the complaints have been established. However, it must do also upon the basis that the findings of fact on which it concluded that the complaints have been established are correct. Thus, if the complaint be that the practitioner was not of good character, the Tribunal must, in exercising the s32R power and making the orders, act on that basis: it cannot act on the basis that he was of good character. However, as the present case illustrates, further questions may arise in this regard. It is necessary to consider what, for this purpose, are "the findings of fact on which it found the complaints to be established". The questions may be illustrated by an example adapted from the present case. The complaint is that the practitioner was not of good character. The particulars of that complaint may be that he did three unacceptable things. The Tribunal may find that he did those things and, because of those findings, may conclude that he was not of good character and therefore that the complaint was established. On the exercise of the s32R power, the Tribunal should not, in my opinion, accept evidence to show that one or more of those things was not done, that the order to be made should be framed on that basis, and that therefore his character was not as bad as it would have been found to be if all of them had been done. More difficult questions may arise where the finding which, at the s32R stage, is sought to be questioned is, not the truth of the complaint or of a formal particular on which the complaint has been based, but a finding of fact from which, with others, ultimately those findings have been derived. Thus, in the course of considering whether, in this case, Dr Edelsten had hired a person to injure a patient and therefore was not of good character, evidence might have been led to show that Dr Edelsten spoke to a third party on a particular day. That fact might be relevant to but not determinative of the hiring of the "hit man" or of the doctor's character. In an appropriate case, it may be necessary to consider how far such a (as I shall describe it) relevant but collateral finding of fact may be the subject of contest where, in the exercise of the s32R power, the Tribunal comes to determine how it bears on the order it should make. It will then be necessary for the Tribunal to determine whether it must accept the finding made in establishing the complaint or whether, in the exercise of the s32R power, it may hear further or other evidence and come to a different conclusion. Such a matter will, I think, fall to be determined according to the relationship between the fact as found and the complaint which has been found to be established. In my opinion, the issue is not to be determined merely by, eg, the rules applicable where res judicata is in question. A finding may not, I think be questioned if it is essentially one on which the determination of the complaint turned. I doubt that 4 UNREPORTED JUDGMENTS such findings of fact are limited to those which have been specified as particulars of the complaint: in some cases, particulars may not have been given or, in the hearing before the Tribunal, new facts may emerge and be essentially the basis of the complaint. I am inclined to think that, if a verbal test is to be formulated, it is one directed to inconsistency between the complaint as found and approved and the fact which, for the purposes of s32R, is sought to be established. This is, I think, in accordance with the reasons why the legislation has been framed as it has. First, s32R contemplates that the orders to be made are to be made because the complaints have been established and are true. The complaints as established are the basis - though not necessarily the whole - of the material upon which the Tribunal is to determine what should be done. Second, the legislation assumes that there will be no inconsistency between the basis of the complaint and the basis of the orders. The assumption of consistency of this kind is found in other branches of the law. Thus, in a damages claim based on negligence, the court would not act upon a finding for the purposes of determining the issue of liability and upon a contrary finding in determining the issue of damages. Third, s32U indicates, I believe, the legislative intention that the findings of fact made for non s32R purposes are to be accepted and are to be subject to review only "in respect of a point of law". Such considerations as these are not, of course, determinative in the sense of being compelling. But, I think, they indicate the basis upon which the s32R powers are intended to be exercised by the Tribunal. I come now to the exercise of THE POWERS OF THIS COURT ON APPEAL. It is necessary first to examine the nature of the appeal authorised by s32U. S$32U(1) provides for an appeal against "a decision of the Tribunal with respect to a point of law" or "the exercise of any power under s32R...". S75A of the Supreme Court Act 1970 provides that, subject to the matters there referred to, an appeal to the Supreme Court is an appeal by way of rehearing. Such an appeal is, in general terms, an appeal on fact and law but the evidence is that which was before the body appealed from: Warren v Coombes (1979) 142 CLR 531. S75A(7) and s75A(8) allows additional evidence to be received on such an appeal in the circumstances there referred to: see the review of s75A and of the power to receive further evidence in Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235. In my opinion, in the manner to which I shall refer, s75A regulates an appeal to the Supreme Court under s32U. The Medical Tribunal is not a court but a quasi judicial tribunal. However, this does not prevent the application of the provisions of s75A to an "appeal" from it. S75A(1) is general in its terms and is, subject to specific provision to the contrary, to apply generally to appeals to the court. An appeal of the present kind is allocated to the Court of Appeal. As I have indicated, s32U authorises two classes of appeals: I shall describe them as "non - s32R appeals" and "s32R appeals". The latter is an appeal against "the exercise of" a s32R power; the former is any other kind of appeal. They may, of course, be brought in the same appeal but they are, in concept, different. A non - s32R appeal is an appeal only against a decision "with respect to a point of law". Prima facie, on such an appeal the court must act upon the findings of fact made by the Tribunal and accordingly prima facie no occasion can arise for the reception of further evidence. Such an appeal may, of course, require a review of the evidence before the Tribunal: that occurred in the appeal brought by Dr Edelsten in this case. Thus, the "point of law" involved may be that a finding of fact made by the Tribunal was wrong in law because there was no URJ EDELSTEN v WARD (Mahoney JA) 5 evidence to support it. But the evidence to be considered on such an appeal would, of course, be that which was before the Tribunal. I do not wish to pre empt the possibility that there may be an appeal with respect to a point of law which would, for its determination, warrant or require the reception of further evidence on the appeal. If there be such a case, it does not arise in this appeal. Accordingly, where an appeal is brought merely with respect to a point of law, the nature of the appeal will be such that no question will ordinarily arise as to the reception of further evidence. Therefore, whether the proper view be that s75A of the Supreme Court Act determines the nature of such an appeal as a rehearing or whether, because of the nature of the appeal given by s32U(1)(a), the operation of s75A is to that extent impliedly excluded, ordinarily no issue will arise on a non - s32R appeal as to the reception of further evidence. The position is, of course, different where the appeal is a s32R appeal. Such an appeal is, in my opinion, an appeal by way of rehearing, of the facts and of the law. Therefore, to the extent authorised by s75A, further evidence may be received on the appeal. In principle, this position obtains whatever be the procedure adopted by the Tribunal and upon the appeal. If the Tribunal dealt both with the complaint and the orders and the appeal is brought in respect of both aspects, the appeal relating to a point of law would not involve the reception of fresh evidence; insofar as it related to the exercise of any power under s32R, the power to receive further evidence given by s75A would apply. If the appeal be one directed only to s32R, then the appeal would be governed in this regard by s75A(7) and s75A(8). But, as the present case illustrates, a further problem may arise similar to that to which I have referred in relation to proceedings before the Tribunal. A question may arise on the appeal which is, in effect, connected both to the determination of the complaints and to the exercise of the s32R power. It may be illustrated by an adaptation of the facts in the present case. The complaint may be that the medical practitioner was guilty of a particular crime and that because of that he is "not of good character": s28(1)(f). The complainant may contend that his lack of good character is to be taken into account in deciding what order should be made against him under s32R. In an appeal against a finding that the complaint had been made out, brought under s32U(1)(a), the medical practitioner would be limited to an appeal only with respect to a point of law: he might argue that the evidence could not justify the finding that he had committed the crime and was therefore not of good character but he could not on such an appeal contest the findings of fact as such. But, on an appeal from the exercise of the s32R power, could he contend that the Tribunal had erred in taking into account that he had committed the crime or was not of good character and, in support of that ground of appeal, seek to establish, by calling further evidence, that he had not committed the crime or that he was of good character? In my opinion, this would not be open. This, I think, was the basis of the decision in this regard in Bannister v Walton (1993) 30 NSWLR 699 and it is the assumption which, I believe, has been made by the court in other cases. In the exercise of the s32R power, the Tribunal must, in my opinion, act upon the basis that the facts on which it based its conclusion that the complaints were established are correct. This issue will seldom if ever arise where there is a single appeal directed both to a s32R appeal and a non - s32R appeal. The occasion would hardly arise for the Tribunal to be asked to make orders upon a basis that the facts found basing the complaint were wrong. However, where as in the 6 UNREPORTED JUDGMENTS present case, the Tribunal has dealt separately with the complaints and the exercise of the s32R power, such a question is more likely to arise. Following the finding that the complaints were justified, the medical practitioner might, as in the present case, seek to call evidence to establish the contrary, if only for the purpose of obtaining orders less detrimental than would have been obtained had the relevant facts been accepted. In my opinion, the nature of the appeals authorised by s32U(1) is such that, in an appeal against the exercise of the s32R power, the findings of fact on which the complaints have been upheld are to be assumed to be accurate. Again, as before the Tribunal, a further aspect of this question may arise for consideration on appeal, viz, how far the findings of fact made in determining the complaint may be contested in the exercise of the s32R power. The illustration adapted from the present case may suffice. Upon a complaint that the medical practitioner was "not of good character", the particulars given may have specified that he did three unacceptable things. The Tribunal may find all three things were done and that accordingly the complaint is established. The medical practitioner, in relation to the exercise of the s32R power, may desire to contest that one of the three things occurred. In the present case, Mr Merkel QC, for Dr Edelsten, suggested that the complaint of bad character here made was based on the allegation that Dr Edelsten had, as it was put, sought the help of a "hit man" to deter harassment by a former patient. He submitted that Dr Edelsten may, for the purposes of the exercise of the s32R power, contest the Tribunal's finding that that allegation was true and that accordingly Dr Edelsten was not of good character. This is conceptually a separate question from that to which I have previously referred. But, in my opinion, the same result follows. In relation to the exercise of the s32R power, it is in my opinion not open to the medical practitioner to contest the correctness of the facts upon which essentially the complaint was held to be established. In the example, the allegation as to engagement of a "hit man" was essentially the matter upon which the finding of lack of good character was based: at least, it was one of the essential matters alleged. It was not open to Dr Edelsten, in relation to the exercise of the s32R power, to contest the correctness of that finding of fact. It is not necessary to pursue the extent to which this principle operates. What Thave said relates to the findings of fact upon which essentially the complaint has been based. I do not think that it is necessary for this purpose that the relevant fact should have been formally particularised: in some cases, particulars may not have been given at all. But the finding of fact must, I think, have been the or one of the findings upon which essentially the complaint has been based. It may be that merely incidental findings of fact will be open to contest. It is not necessary to determine that matter. In the present case, in my opinion, insofar as it is necessary to determine this issue, the findings here in question were of the nature to which I have referred. To summarise: I have dealt with these issues by reference to the exercise of the s32R power by the Tribunal. The same considerations apply when, on an appeal under s32U, such matters arise for determination by this Court. In a non s32R appeal, or in an appeal insofar as it relates to a non - s32R matter, the appeal is limited to decisions with respect to a point of law. Accordingly, at least in the ordinary case, no question can arise as to the admission of further evidence on the appeal. Where the appeal is against the exercise of a s32R power, the appeal is URJ EDELSTEN v WARD (Mahoney JA) 7 by way of rehearing under s75A and accordingly fresh evidence may be admitted in the circumstances there provided for: s75A(7) and s75A(8). Therefore, two things must be borne in mind: in dealing with a s32R appeal, the court must, in the sense to which I have referred, accept the findings of fact made by the Tribunal with respect to non - s32R matters; and, insofar as fresh evidence is admissible, it is admissible only within the principles established for the purposes of rehearing. Those principles have been examined by this Court in, eg, Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235. (b) I come now to the course that was taken in the appeal and on the motion. Upon the hearing of the appeal, Dr Edelsten tendered a number of affidavits. One of the affidavits, that of Dr Eric Davis, dealt with Dr Edelsten's own medical condition and, inter alia, his capacity to represent himself in court. The court felt it appropriate to admit that affidavit. Other affidavits were tendered by him which, it was suggested, were directed to establishing error in the findings of fact made for the purpose of deciding the complaints or error in the conclusions on which it was held that the various complaints were established. The court accepted the tender of the affidavits upon the basis - I state the matter generally - that it would consider the terms of them and rule upon them in the course of giving judgment. It was accepted that this was a convenient and appropriate course. No evidence was tendered for the respondents. As I have indicated, after decision was reserved in respect of the appeal, notice of motion was filed seeking leave to adduce further evidence. At Dr Edelsten's request, the court postponed determination of the matter until that motion was heard. Mr Merkel QC, for Dr Edelsten, submitted on the motion that, in the hearing of the appeal, the court should receive and act upon affidavits then formally tendered. Those affidavits were: the affidavits of Dr Edelsten of 13 April 1993 and 18 June 1993, of Mr White of 21 June 1993 and 25 November 1993, of Miss Shenker of 13 July 1993 and of Dr Barnes of 5 August 1993. The submission was to the effect that, if the court, as on a rehearing, considered that evidence, it should conclude that the complaints had either not been made out or that it was unjust to act on the basis that they had. The submissions suggested that either the appeal should be upheld and the orders set aside or - this I think was the main submission - that the matter should be returned to the Tribunal for further consideration. Mr Merkel QC, for Dr Edelsten, put his submissions in relation to the fresh evidence in a number of ways. I shall deal with the main bases on which they were put. He submitted that, as a general principle, all findings made by the Tribunal are open to review by this Court, including findings on non - s32R matters (findings on which the determination of the complaints were based). He relied upon General Medical Council v Spackman (1943) AC 627 at 634 and 635. I do not think that appeals under s32U are governed by such a principle. The basis of the proceedings in the United Kingdom at that time was, in my opinion, different from that established by s32U. In that case, the question at issue was whether the doctor had been guilty of infamous conduct in a professional respect or, more accurately, whether the General Medical Council had conducted "due inquiry" into the issue within s29 of the Medical Act 1858. It had refused to hear the doctor's evidence because, the Divorce Court having found him guilty of adultery, it would not go behind that finding. The House of Lords held that it should have heard the doctor's evidence, that therefore there was no "due inquiry", and that certiorari should go to quash the Council's order: see at 629, 8 UNREPORTED JUDGMENTS 634 and 635. It was the purpose of s32U, to the extent to which I have referred, to limit appeals in respect of matters other than points of law in the manner to which I have referred. Mr Merkel submitted, alternatively, that the appeal was generally one as on a rehearing in accordance with the principles in Edwards v Noble (1971) 125 CLR 296 at 304. The matter is now governed by the decision in Warren v Coombes (1979) 142 CLR 531: see the judgment of Gibbs ACJ, Jacobs and Murphy JJ. But, however that be, that submission does not, in my opinion, take proper account of the limitation which, by s32U(1)(a) is imposed upon non - s32R appeals. The power to rehear is limited in the manner to which I have referred. Mr Merkel QC then submitted that the court can and should reconsider the findings made in respect of the complaints, and should in doing so take into account the affidavits relied on, because there had been, as it was described, a miscarriage of justice. He submitted that the court, in considering "the merits of the case and the public welfare": s32U(3)(b); should set the relevant findings aside. He submitted that, unless such a review was open on an appeal under s32U, the legislation might perpetuate injustice. He referred, in this regard, to the possibility that a tribunal might, in determining complaints against a practitioner, act upon perjured or fraudulent material. He submitted that the legislation should be so construed that a determination so obtained could be questioned when the Tribunal came to make orders or this Court, on appeal, considered an appeal against them. The court will, of course, lean to a construction of legislation which will avoid inequities or miscarriages of justice of this kind. But I do not think that this approach to construction of legislation is of assistance to Dr Edelsten in the present appeal. Such a case as was referred to by Mr Merkel QC can, in my opinion, be appropriately dealt with. In a judicial proceeding, where a judgment or order has been obtained in such a way, one or both of two remedies may be available. Where an appeal is open, the complaint of perjury, fraud or the like is a ground for upholding the appeal. Alternatively, application may be made to the court, conventionally in its equitable jurisdiction, to relieve the affected party from the burden of the judgment. Where both remedies are available, the appropriateness of one over ie other may depend upon whether, for example, a substantial determination of factual issues will be involved: see generally Wentworth v Rogers (No 2) (Court of Appeal, 21 May 1986, unreported) and the cases there referred to; Wentworth v Rogers (1987) 8 NSWLR 388 at 391G. Counsel were not able to refer the court to any authority in which the applicability of these principles to an order made by a quasi judicial tribunal has been considered. If there be an appeal of the kind provided by s32U, it may be that perjury, fraud or the like would constitute a valid ground of appeal as "a point of law'. But, however that be, it would in my opinion be inequitable for an order made by such a tribunal to stand in such circumstances. Accordingly, the effect of the order could be determined by proceedings in the equitable jurisdiction. In the present legislation there is, in my opinion, an additional method providing for dealing with such a case. The legislation provides for a "review" of the decision of the Tribunal: s32V. The extent of the power of the Tribunal on such a proceeding has recently been considered by this Court: see Rohatgi v Medical Tribunal of New South Wales and Anor (Court of Appeal, 20 April 1994, unreported). If the Tribunal, on review, found that its original decision had been procured by perjury, fraud or the like, that could of course be a ground for URJ EDELSTEN v WARD (Mahoney JA) 9 variation of the order. The variation might be made to operate, in accordance with the terms of the section, in effect from the date on which it was made. In my opinion, therefore, the possibility of such injustice does not warrant the legislation being construed in the manner suggested by Mr Merkel's submissions. The availability of fresh evidence is to be determined in the manner to which I have referred and, where it is available, the admissibility of it is to be determined in accordance with the principles established under s75A, to which I have referred. These conclusions are, I think, sufficient to dispose of the motion. However, in deference to the arguments advanced by Mr Merkel QC and by junior counsel for Dr Edelsten, Mr Shirrefs, I shall refer briefly to the factual matters on which reliance was placed. In the submissions for Dr Edelsten the factual material sought to be relied on was seen as falling into four categories. These were stated in counsel's submissions to be as follows: "(i) The production of a police 'running sheet' not previously available to the Appellant which corroborates his contention that in March 1984 the police informed him that Stephen Evans was thought to be overseas and as a consequence the Appellant did not know the identity of the person who was harassing him and was therefore unlikely that the Appellant would seek to procure Flannery to intimidate Evans. (ii) The testimony of Kathleen Flannery, that her husband was genuinely ill on 28 January 1984 when he consulted the Appellant. Affidavits from friends of Flannery stating that Flannery confided in them that he had taken gunpowder so as to induce a serious malaise which would result in his hospitalisation. A report from Professor G Crank on the effects of gun powder ingestion. The affect of this material is to cast a very different complexion on the nature of the relationship between the Appellant and Flannery and supports the Appellant's evidence concerning the genuineness of his treatment of Flannery's medical condition. (iii) An affidavit from Bevyn White who deposes to the accounting practices of the Appellant's medical centre and who disputes the testimony of the witness Holt upon whom the Medical Tribunal placed great reliance. He states that he had prepared a statement for the Tribunal but was not called by the prosecution. (iv) Medical evidence on the state of the Appellant's health and how this would have affected his memory and demeanour whilst giving evidence before the tribunal and could have damaged his credibility as a witness. The evidence related to matters occurring before trial. The appellant's evidence establishes that that evidence satisfies the criterion of 'special grounds' in s75A(8)." One of the main complaints made against Dr Edelsten before the Tribunal was that relating to a Mr Flannery, the "hit man" to whom I have referred. Thus, it was suggested that the police "running sheet" supported the conclusion that Dr Edelsten had been told by the police that, as it was suggested, the patient said to be harassing him was at the relevant time thought to be overseas. One of the submissions suggested that Dr Edelsten had on this point been disbelieved, that this affected the general assessment of his credibility, that had the running sheet been available at the hearing he might have been accepted as credible on this and consequently on other matters, and that therefore the availability of it warrants it being received as further evidence on the appeal. 10 UNREPORTED JUDGMENTS It may be assumed for the purposes of this appeal that further evidence going only to credit may be allowed. It may be that the running sheet, had it been available, would have been relevant in deciding whether the evidence of Dr Edelsten was true. But, even if relevant, it would within the relevant principles be quite unlikely to bring in question the finding that Flannery was engaged for the purpose complained of - there was strong evidence to establish the complaint - and so it would not be received as fresh evidence. Even if received, it would go only to the truth of the complaint or complaints in question and therefore would not ordinarily be of assistance in a non - s32R appeal. If it were to be admitted on a s32R appeal, not to contest the correctness of the finding that the complaint was true, but only for the purpose of deciding what order should be made, it would not, in my opinion, be likely to affect the order made upon the basis of the relevant complaint. The main matter urged in relation to the evidence of Kathleen Flannery related to an aspect of the evidence as to Dr Edelsten's relationship with her husband, the alleged "hit man". It is not necessary to pursue the factual submissions in detail. In general, the suggestion was that Dr Edelsten had seen Mr Flannery only as a patient. It was suggested that evidence showed that Mr Flannery had, when he approached the doctor, ingested gunpowder and so would probably have appeared genuinely ill. That, it was suggested, would be of assistance in showing that the doctor's relationship with Mr Flannery had a true basis in doctor patient affairs and did not relate solely to the proposal to hire Mr Flannery's services. I shall for this purpose assume the evidence now tendered to be credible and to be relevant to that issue. But, on those assumptions, the evidence would go only to findings of fact in respect of the complaint. Even if admitted and taken into account, it would not, in my opinion, be likely to alter the conclusion, based upon the whole of the evidence in that regard, that was formed against Dr Edelsten. The fact that Dr Edelsten had, I shall assume, occasion to treat Mr Flannery, is not inconsistent with the conclusion that he sought his services. Reference was made, for example, to the evidence in a conversation between Dr Edelsten and Mr Flannery. That evidence provided a strong basis for the conclusion which the Tribunal drew against Dr Edelsten. The fact that Mr Flannery was or had been a patient treated for gunpowder symptoms would not make it less likely that the conversation took place or was to the effect which was alleged. Mr Bevyn White was to be called as a witness for the complainant against Dr Edelsten but, by the time the hearing took place, he had disappeared and was not called. On one view, the evidence now adduced from Mr White suggests merely that the statement that he had given to the complainant was not true. Insofar as Mr White's evidence would have suggested that Dr Edelsten had not, as it was put, offered inducements to medical practitioners to order pathology tests when ordinarily they would not have done so, that evidence, even if accepted, would not in any way be conclusive in favour of Dr Edelsten on that complaint. Dr Edelsten sought also to adduce evidence that he is presently affected by a tumour in the cranial area, that this probably existed when he was before the Tribunal, and that this may or would have affected the way he gave evidence. Counsel stressed that the credibility of Dr Edelsten before the Tribunal was a matter of importance; his demeanour, it was said, affected the credit given to him as a witness. It was suggested, I think, that this, together with other evidence sought to be adduced, might have affected the Tribunal's assessment of his credibility and that, on a different view of that, the findings might have been different. This and similar submissions assume that Dr Edelsten was affected, and URJ EDELSTEN v WARD (Mahoney JA) 11 to a sufficient extent, when he gave evidence and that it was this which relevantly affected the judgment of the Tribunal. Whether it would have done so and to what extent involves, in my opinion, a speculation: for myself, I would not be convinced that the doctor's evidence was affected in that way or that what the Tribunal observed depended upon matters of that kind. Ihave referred to the submissions in respect of this evidence in general terms: it is not necessary to pursue the detail of the evidence or of the submissions made. There is, in this, no disrespect for the care with which the submissions have been made. But, I think, in the end, the complaint made in relation to the engagement of the "hit man" and the effect of this upon the conclusions to be drawn as to character lay at the heart of the proceeding. I do not think that the evidence now proposed, if admitted, would satisfy the tests laid down in respect of fresh evidence: see the Radnedge case and the matters there referred to. It would not, in my opinion, alter the conclusion arrived at in relation to that matter. Therefore, even if otherwise admissible on an appeal under s32U, the evidence would not, I think, lead to a different result. I have dealt with these matters by reference to the categories of evidence propounded in support of the notice of motion. For the reasons I have given that motion fails. It remains therefore to deal with the appeal upon the basis of the material properly before the court. In support of the appeal Dr Edelsten provided the court with written submissions some 143 pages in length and there was in addition evidentiary material of some 63 pages. Subsequently he provided the court with folders of affidavit material referred to in the appeal. That material is directed essentially to the correctness of the findings of fact made by the Tribunal in dealing with the complaints. For the reasons to which I have referred, it is not necessary to deal with the detail of it. Having regard to the nature of the appeal, that aspect of it must fail. I do not think that the evidence can be used to falsify the findings of fact on which the complaints were dealt with; even if it could, I do not think that the court should come to a different conclusion in relation to them. I come therefore to the question whether on the appeal the orders made by the Tribunal in the exercise of the s32R power should be varied or set aside. I do not think that they should. I do not think that the material tendered as further evidence should be admitted: it does not satisfy the tests for the admission of further evidence to which I have referred. But, if that evidence were admitted, I do not think that it would lead to different orders being made. The evidence as a whole would be such that the proper conclusion would be that the complaints were established and the orders were the appropriate orders. It was, I think, suggested that, if the further evidence was admitted, the issue of Dr Edelsten's credit would then have to be reviewed and that would require that the proceeding be reheard by the Tribunal. I do not think that it would. But in any event that mistakes the basis on which further evidence is to be admitted. In the main, the matters in question occurred before the hearing. The mere possibility of a different verdict if the evidence was called at the trial is not enough: see generally Orr v Holmes (1948) 76 CLR 632; Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435; McDonald v McDonald (1965) 113 CLR 529. On credit, there is nothing which would, for example, establish with the required degree of probability that the verdict would have been different or that he would have been accepted as a truthful and accurate witness. 12 UNREPORTED JUDGMENTS If the matters be considered apart from the fresh evidence, the appeal should not succeed. Each of them involves a matter of some seriousness. Disqualification from practice, insofar as it was imposed, was appropriate. The sums of money involved indirectly in respect of some of them were substantial and accordingly the fine was not inappropriate. As I have said, in practical terms the most significant order was that made in respect of the first complaint. That complaint was that Dr Edelsten "is not of good character". The particulars of the complaint included: "That between approximately 10 January 1984 and 15 April 1984 the said Geoffrey Walter Edelsten had a conversation with a criminal, whom he believed to be a professional standover man and murderer, with a view to obtaining his assistance to intimidate by threats or violence a former patient whom Geoffrey Walter Edelsten alleged was harassing him." That complaint was found proved. The material on which the complaint was based showed clearly that Dr Edelsten was not a person of good character and accordingly was not a person who should be permitted to practice. I have considered whether the period of disqualification from practice was excessive. I do not think that it was. I have taken into account the evidence in relation to the condition from which Dr Edelsten now is said to suffer. The evidence given in relation to it does not establish any excuse for what was done nor does it suggest that, since 1984, his character as then established has changed. I see no reason to change the orders made by the Tribunal. In my opinion, the motion and the appeal should be dismissed with costs. Meagher JA On 27 April 1988 a decision of the Medical Tribunal constituted pursuant to Division 3 of Pt3A of the Medical Practitioners Act 1938 (as amended) held that Dr. Edelsten, the appellant, was guilty of seven complaints which had been made against him. The Tribunal did not immediately embark on a consideration of what orders should be made consequentially on their findings. Instead, the appellant appealed to this Court against the finding that the complaints had been established. On 11 November 1988 the Court published its decision that the appeal be dismissed: sub nom Edelsten v Richmond, Court of Appeal, unreported. The Tribunal then proceeded to consider what orders were appropriate, and announced its conclusions on 29 November 1988. In respect of some of the complaints it ordered that the appellant's name be removed from the Register, in respect of some cases it ordered a suspension from practice, in respect of one case it ordered a fine, in respect of two cases it reprimanded the appellant. The appellant now appeals against these orders. Nothing depends on the details of the various orders. One of the orders may be taken as an example. In respect of the first complaint, the Tribunal ordered that the appellant's name be removed from the Register and fixed ten years as being the time after which he may apply to be re registered. This was an order made under s32R of the Act. It was made in respect of the first complaint, the precise terms of which I should repeat "1. That Geoffrey Walter Edelsten being a person registered under the Act is not of good character. Particulars of the complaint are as follows: That between approximately 10 January 1984 and 15 April 1984 the said Geoffrey Walter Edelsten had a conversation with a criminal, whom he believed to be a professional standover man and murderer, with a view to obtaining his assistance to intimidate by threats or violence a former patient whom Geoffrey Walter Edelsten alleged was harassing him" URJ EDELSTEN v WARD (Meagher JA) 13 The power to appeal is set out in s32U of the Act, and is limited to an appeal on questions of law (subs(1)(a)) and an appeal on severity of sentence (subs(1)(b)). The latter type of appeal refers back to s32R, subs(1), which is in the following terms: "32R. (1) If the Tribunal finds the subject matter of a complaint made against a person to have been proved, it may: (a) caution or reprimand the person; (b) order that the person seek medical or psychiatric treatment or counselling; (c) direct that such conditions, relating to the person's practising medicine, as it considers appropriate be imposed on the person's registration; (d) order that the person complete such educational courses as are specified by the Tribunal; (e) order that the person report on his or her medical practice at the times, in the manner and to the persons specified by the Tribunal; (f) order that the person seek and take advice, in relation to the management of his or her medical practice, from such persons as are specified by the Tribunal; (g) by its order: (i) suspend the person from practising medicine for such period as it specified; or (ii) direct that the person's name be removed from the Register; or (h) by its order impose a fine on the person of an amount, not exceeding $25,000, specified in the order, or exercise any combination of powers conferred on it by para(a) to para(h). Some debate took place about the jurisdiction which the Court exercised, when, as here, it entertains an appeal under s32U(1)(b). In general, appeals to the Court, whether from other decisions of the Court or from other courts or Tribunals, are governed by s75A of the Supreme Court Act. As far as appeals under s32U(1)(a) are concerned, it is difficult to see how this could be so, as points of law are either right or wrong. It is just possible that s75A of the Supreme Court Act, however, governs appeals under s32U(1)(b) of the Medical Practitioners Act; although, in usual practice, I do not see how the point will arise, as in my view an appeal under s32U(1)(b) does not permit the reagitation of the primary facts found by the tribunal. To take the present appeal as an example, when this Court has to hear an appeal against the order which I have set out in respect of the complaint which I have set out, the task of the Court is simply to ask whether the order made by the Court is appropriate to the facts found. In this example, the answer is easy. Corrupt as our age may be and fallen our standards, any professional man who hires hit men to deal with his enemies cannot seriously complain that the order made in the present case is too severe. Likewise, if one goes through the other complaints seriatim. Dr Edelsten endeavoured to press on us a great number of points: for example, that the Tribunal was biased; that certain testimony should have been believed and other testimony should not; that the Tribunal had overlooked various matters; that it had wrongfully taken into account matters it should not have; and so on. None of these matters, even if they have substance, can now be reagitated, the tribunal having decided that the complaints have been established and that decision having been affirmed. I might add that I am far from convinced that any of them have substance. 14 UNREPORTED JUDGMENTS There is only one further matter to note. An attempt was made to tender fresh evidence in the form of an affidavit by a Dr Eric Davis, a consultant neurologist. That evidence was, by a majority decision for the Court, admitted and it was on this issue that the applicability of s75A of the Supreme Court Act arose, because if that section did not apply there would be no basis for admitting fresh evidence. That evidence established that in 1992, presumably since, and for about ten years before that date, the appellant has been suffering from an intracranial tumour (a meningioma situated in the region of the cavernous sinus and sphenoid wing). In my view, that evidence, if admitted, can have no relevance of any kind to the only question before us, viz whether the Tribunal's orders of 29 November 1988 are appropriate to its findings of 27 April 1988. The appeal should be dismissed with costs. Sheller JA I have had the advantage of reading the judgments prepared by Mahoney and Meagher JJA. I agree for the reasons they have given that the motion and the appeal should be dismissed with costs. The appeal was against determinations made by the Tribunal pursuant to s32R of the Medical Practitioners Act 1938. The power of the Tribunal to make determinations under that section depended upon its having found the subject matter of a complaint made against the appellant to have been proved. The Tribunal had so found and an appeal pursuant to s32U (1) (a) of the Act against that finding was heard by this Court and dismissed. The present appeal pursuant to s32U (1) (b) of the Act is against the exercise of power by the Tribunal under s32R. In my opinion it is not open to an appellant on an appeal so limited to challenge the Tribunal's findings of the subject matter of complaints. To the extent to which the appellant sought to do this in reliance on fresh evidence or otherwise the appeal fails. Had this Court been persuaded on the material before the Tribunal to disturb its determinations under s32R, there may have been reason to admit fresh evidence to assist in making orders to dispose of the appeal; see, for example, s32U (3) (b). On an appeal against the Tribunal's exercise of power under s32R there may be other grounds for admitting fresh evidence; not to challenge the findings of the subject matter of complaints, but in aid of the limited appeal pursuant to s32U (1) (b). I think the Court has power to admit such evidence pursuant to and in accordance with s75A of the Supreme Court Act 1970. For the reasons given by Mahoney JA, even taking account of the fresh evidence proffered by the appellant, no ground was shown for interfering with the determinations of the Tribunal. (1) Appeal dismissed with costs. Counsel for the Appellant: R MERKEL QC/ S SHIRREFS Instructed by: SELF Counsel for the Respondent: M SEXTON/ C MILLARD Instructed by: STATE CROWN SOLICITOR