MACARTHUR v WALTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and POWELL JJA 21 June 1995, 31 August 1995 [1995] NSWCA 264 MEDICAL PRACTICE ACT 1992 s90 — PROFESSIONAL MISCONDUCT — QUESTION OF LAW — DISTINCTIONS FROM QUESTION OF FACT MEDICAL PRACTICE ACT 1992 s90 — PROFESSIONAL MISCONDUCT OF MEDICAL PRACTITIONER — APPEAL ON QUESTION OF LAW DISTINCTIONS FROM APPEAL ON QUESTION OF FACT — Medical Tribunal finds medical practitioner guilty of professional misconduct by inappropriately touching patient — s90 Medical Practice Act 1992 confers appeal against decision of Tribunal only on a question of law or against exercise of Tribunal's disciplinary powers — practitioner seeks to establish appeal against Tribunal's decision on a question of law by arguing: 1. because of indirect testimony and indirect inferences the Tribunal cannot, as a matter of law, have been reasonably satisfied of the facts; 2. absence of evidence which a reasonable tribunal would accept; 3. error in law by Tribunal in reaching its decision without hearing certain evidence; 4. denial of procedural fairness to the practitioner — the complainant cross-appeals for an order that the practitioner pay the complainant's costs of proceedings before the Tribunal. Held: appeal must fail as no error of law can be demonstrated determinations of primary fact which are necessarily based on the Tribunal's opinion of the reliability of witnesses and their evidence not vulnerable to attack as an error of law - question whether evidence ought to be accepted in whole or in part or ought to be accepted as sufficient to establish a fact itself a question of fact - Tribunal not bound to observe rules of law governing admission of evidence - no denial of procedural fairness. ORDERS 1. Appeal dismissed with costs. 2. Leave to cross-appeal granted. 3. Cross-appeal allowed with costs. 4. Tribunal to determine complainant's application for costs according to law. 5. Cross-respondent to have certificate under Suitor's Fund Act in respect of the costs of the cross-appeal. Priestley JA I agree with Handley JA. Handley JA This is an appeal by a practitioner from findings and orders made by the Medical Tribunal. The Tribunal found that the practitioner had been guilty of professional misconduct by inappropriately touching Patient A on the pubic area following an operation at Armidale Hospital on 18 October 1993 and by inappropriately touching Patient B on the pubic area following another operation on 10 November 1993. Both patients were young women. Following the publication of its reasons and findings on 9 December 1994 the Tribunal heard further argument and on 19 January 1995 it ordered that the practitioner be suspended from practise for six months and that a condition be imposed on his registration that he take no part in the transfer of patients from the operating table to the recovery trolley. The orders were to take effect on and from 10 February. 2 UNREPORTED JUDGMENTS On 25 January, an appeal to this Court having been filed, Powell JA on certain undertakings continued that stay until the determination of the appeal or further order. The appeal conferred by s90 of the Medical Practice Act 1992 against a decision of the Tribunal lies only from a decision on a question of law or against the exercise of the Tribunal's disciplinary powers. This appeal is directed to the findings of the Tribunal, the practitioner recognising that its orders are unassailable if the findings cannot be disturbed. Senior counsel for the practitioner sought valiantly to extract a decision on a point of law from the Tribunal's reasons. The serious consequences of its findings and orders for the practitioner motivate such a search but do not guarantee its success. A challenge to the standard of proof applied by the Tribunal was abandoned in the light of this Court's decision in Arvind v Walton (unreported, 21 February 1995) which applied the reasoning in Bannister v Walton (1993) 30 NSWLR 699 to proceedings under the 1992 Act. Most of the other so-called points of law raised on behalf of the practitioner were nothing of the kind. The ground of appeal that the decision was against the evidence and the weight of the evidence only emphasized the practitioner's difficulties. The charges against the appellant related to events of short duration, fifteen seconds or so, occurring under bright light in an operating theatre. Six witnesses testified to those incidents. Their accounts differed in detail but agreed in substance. Counsel for the practitioner sought to maximise these differences and erected arguments based on them. As presented these arguments were directed in the main to the reliability of the witnesses and the weight to be given to their evidence in the light of the criticisms of counsel for the practitioner. They did not involve the application of a legal standard and raised no question of law. The practitioner submitted that the Tribunal arrived at its conclusions by relying on inexact proofs, indefinite testimony and indirect inferences and hence "as a matter of law the Tribunal cannot have been 'reasonably satisfied' of the facts." This was an attempt to dress up a submission on fact as a submission of law but the disguise was transparent. It was directed to the findings of primary fact which were necessarily based on the Tribunal's opinion of the reliability of the witnesses and their evidence. As Glass JA said in Azzopardi v Tasman Industries (1985) 4 NSWLR 139 at 156-157: "the... determination of (primary) facts by a reasoning process marred though it be by patent error, illogicality or perversity will... never be vulnerable to attack as an error of law..." Iam not suggesting for one moment that the findings of the Tribunal could be so described and counsel for the practitioner made no such submission. Nevertheless the extreme examples given by Glass JA demonstrate that lesser errors cannot involve questions of law either. The practitioner's alternative submission "that the concept of an absence of evidence must embrace the absence of evidence which a reasonable tribunal could accept" fails as a submission of law for the same reasons. The question whether evidence ought to be accepted in whole or in part or ought to be accepted as sufficient to establish a fact is itself a question of fact. See Azzopardi at 155. As Glass JA further demonstrated in that case at 156 the party not bearing the legal onus who raises as a question of law the submission that there is no evidence on which a tribunal of fact can find some allegation established assumes against himself that the evidence has been accepted. The alternative submission for the practitioner does not do this and hence fails to raise a question of law. URJ MACARTHUR v WALTON (Handley JA) 3 There was ample evidence to support all the findings made by the Tribunal and that is the end of any question of law in the practitioner's direct challenge to its findings. Indeed it seems to me that the principles in Abalos v Australian Postal Commission (1990) 171 CLR 167 would have required the dismissal of this appeal even if the statute had allowed an appeal on questions of fact. Grounds 4 and 5 of the notice of appeal alleged error by the Tribunal in rejecting written statements by Ms Bacigalupo, the Deputy Director of Nursing at the hospital. A nurse, Ms Blake was cross-examined in relation to the conversations with Ms Bacigalupo referred to in those statements which were said to be inconsistent with her evidence. When counsel for the practitioner later tendered those statements they were rejected. Neither counsel called Ms Bacigalupo as a witness and as a result counsel for the practitioner was not able to cross-examine her in relation to the conversations with Ms Blake. The practitioner submitted that the Tribunal erred in law in rejecting the tender and in reaching its decision without hearing the evidence of Ms Bacigalupo "whom the complainant ought to have called". CL1 of Schedule 2 of the Act provides that the Tribunal is not bound to observe the rules of law governing the admission of evidence and may inform itself of any matter in such manner as it thinks fit. It is clear therefore that the Tribunal did not err in law in rejecting the statements and in making findings without the evidence of Ms Bacigalupo. See Qantas Airways v Gubbins (1992) 28 NSWLR 26 at 32. The practitioner's final submission was that the Tribunal had denied him procedural fairness. This, if established, would involve an error of law. See Yates Property Corporation v Darling Harbour Authority (1991) 24 NSWLR 156 at 186. The factual basis for this contention was that the complainant had not asserted two separate touchings of the patient on 18 October 1993 but the Tribunal in resolving the differences between the witnesses found that this had occurred. It was said that the practitioner had no opportunity to be heard on that issue and to argue against such a finding. There is no substance in this contention. The whole incident lasted about fifteen seconds and any attempt to split this into separate periods lacks reality. The allegations against the practitioner were simple and uncomplicated. As counsel for the complainant submitted "the concession by the appellant that he had his right hand on the patient under a thin blanket rendered the issue in dispute a very restricted one. In substance it was whether his hand at all times stayed on the iliac crest of the pelvic bone or whether it slid down onto the pubic area of the patient." I would reject this ground of appeal. The appeal therefore fails and must be dismissed with costs. This and some earlier appeals from the Tribunal have in substance been incompetent because no reasonably arguable questions of law were involved. In future cases of this kind the Court may be prepared to make orders for indemnity costs against an appellant bringing an incompetent appeal. The complainant filed a summons for leave to cross-appeal, time having been extended by Powell JA for this purpose. The proposed cross-appeal challenged the Tribunal's failure to make an order that the practitioner pay the complainant's costs of the proceedings. The Tribunal had jurisdiction to make such an order. See Schedule 2 CL13. It published its reasons and findings on 9 December 1994 and on 16 December heard submissions as to the orders it should make. Counsel appearing for the complainant sought an order that the practitioner pay her costs of the proceedings. When the Tribunal published its further reasons and made orders on 19 January 1995 it failed to deal with costs either in its reasons or its 4 UNREPORTED JUDGMENTS orders. The following day the judicial member was asked by the solicitor for the complainant to reconvene the Tribunal to deal with this issue. His Honour's other judicial duties prevented him from hearing this application until 27 April and he then heard argument on the question of jurisdiction. He held that the proceedings had concluded on 19 January with the publication of the Tribunal's further reasons and the making of its orders and that it no longer had jurisdiction. The application for costs heard and rejected by the Judge on 27 April was supported by an affidavit from the complainant's solicitor, Mr David Swain, in which he said that on 16 December the counsel he was instructing on behalf of the complainant made an application for costs. The arguments before the Tribunal on that day were not recorded. The official transcript does not show that such an application was made but is not inconsistent with this having been done. The judicial member stated in his reasons of 27 April that he could not recall such an application but he did not assert the contrary. No evidence was led on behalf of the practitioner on this issue and the solicitor for the complainant was not cross-examined. In these circumstances the complainant must be taken to have established that an application for costs was made on 16 December. The Tribunal, for whatever reason, failed to determine that application. It is not necessary to decide whether the Tribunal has a power, analogous to that available to courts under their inherent or implied jurisdiction or an express slip rule, to deal with errors and omissions in the formal orders after the proceedings as a whole have come to an end. In the present case, with respect, the Tribunal failed to deal with all the matters properly before it according to law and this failure constitutes an error of law. See Yates Property Corporation v Darling Harbour Authority (1991) 24 NSWLR 156 at 186. In appropriate proceedings this Court could make an order in the nature of mandamus requiring the Tribunal to hear and determine the outstanding application for costs according to law but relief of this kind can also be granted in appellate proceedings limited to errors of law. See Hill v King (1993) 31 NSWLR 654. Senior counsel for the practitioner sought to support the decision that the Tribunal now lacked jurisdiction to deal with this application. However a tribunal such as this cannot deprive itself of jurisdiction by an express or constructive refusal to exercise it. In my opinion leave to cross- appeal should be granted, and the cross-appeal allowed. The following orders should be made: 1. Appeal dismissed with costs. 2. Leave to cross-appeal granted. 3. Cross-appeal allowed with costs. 4. Proceedings remitted to the Tribunal to hear and determine the complainant's application for costs according to law. 5. Cross-respondent to have a certificate under the Suitors Fund Act in respect of the costs of the cross-appeal. Powell JA I agree with Handley JA. Appeal dismissed with costs. Leave to cross-appeal granted. Cross-appeal allowed with costs. Tribunal to determine complainant's application for costs according to law. PYNE URJ MACARTHUR v WALTON (Powell JA) 5 5. Cross-respondent to have certificate under Suitor's Fund Act in respect of the costs of the cross-appeal. Counsel for the Appellant: C GEE QC/R GREENHILL 5 Counsel for the Respondent: J BASTEN SC Solicitors for the Appellant: EDSON PIKE, CROWS NEST Solicitors for the Respondent: DAVID SWAIN, HEALTH CARE 10 COMPLAINTS COMMISSIONER