Appeal Panel CITATION: Lloyd -v- TCN Channel Nine Pty Ltd and Another [1999] NSWADTAP 3 decision revised on: APPELLANT: Ronald George Lloyd RESPONDENT: TCN Channel Nine Pty Ltd (First Respondent) and Veterinary Surgeons Investigating Committee (Second Respondent) FILE NUMBER: 999001 HEARING DATES: 03/25/1999; 04/09/1999 SUBMISSIONS CLOSED: 04/09/1999 DATE OF DECISION: 27 July 1999 Grant of consent under s.126 of the Act to the First Respondent to publish or broadcast the name of the appellant or otherwise to identify the appellant as the respondent to proceedings before the Tribunal. DECISION UNDER APPEAL: C A Needham - Deputy President BEFORE: M B Smith - Judicial Member O McDonald - Member FILE NUMBER UNDER APPEAL: 984004, 984005, 9840015, 9840016 DATE OF DECISION UNDER APPEAL: 03/18/1999 PRIMARY LEGISLATION: Administrative Decisions Tribunal Act 1997 (NSW) Appellant: D Inverarity counsel instructed by Hermann & Green REPRESENTATION: Respondent: First Respondent: J Griffiths counsel instructed by Gilbert & Tobin Second Respondent: S Burchett counsel instructed by Conway MacCallum 1. Appeal on error of law allowed. 2. Grant leave for the appeal to extend to a review of the merits of the appealable decision. ORDERS: 3. Appeal on the merits allowed. 4. Set aside the decision of the General Division made 18 March 1999. 5. Refuse the application under s.126 by TCN Channel 9 Pty Limited for consent to publish the name of the appellant 6. Direct any application under s.88 for costs to be made in writing within 21 days together with a supporting affidavit. Reasons for Decision of: C.A. Needham, Deputy President, O.M. McDonald, Member 1 This is an appeal to an Appeal Panel of the Tribunal from a decision of the General Division of the Tribunal under s.113 of the Administrative Decisions Tribunal Act 1997. 2 The order appealed from granted consent under s.126 of the Act to TCN Channel 9 Pty Limited ("TCN 9") to publish or broadcast the name of the appellant or otherwise to identify the appellant as the respondent to proceedings before the Tribunal, chaired by His Honour Judge O'Connor. Sections 75 and 126 of the Act 3 Section 75 of the Act provides: "(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public. (2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order that the hearing be conducted wholly or partly in private, (b) an order prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (3) Mediation sessions and neutral evaluation sessions under Part 4 are to be conducted in private." Section 126 provides: "(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person." 4 It should be observed at the outset that s.126 does not prohibit the reporting of proceedings before the Tribunal. It prohibits the publication of names of a respondent or witness or other person mentioned in the hearing, except as part of the publication of the official report or judgment, without the consent of the Tribunal. In the Tribunal at first instance 5 The substantive proceedings in the General Division are disciplinary proceedings against the appellant arising from four complaints referred to the Tribunal by the Veterinary Surgeons Investigating Committee ("VSIC"). 6 The hearing was and is open to the public. The appellant's name appeared in the Tribunal's listing of the case outside the Tribunal hearing room and in the Sydney Morning Herald Law Notices section. 7 Application for consent to publish the name of the appellant (the respondent below) was made by TCN 9 on about the fourth day of the hearing, which was subsequently for other reasons adjourned for a number of weeks. The adjourned hearing is expected to last several weeks. The application was made orally, after notice had been given to the Registry. At that time the VSIC witnesses in the substantive proceedings had completed their evidence on the first of the four complaints, which were being heard sequentially. The appellant had been cross-examined on his statement in relation to the first complaint but not re-examined. The Tribunal had not embarked upon the other complaints. 8 The application was fixed for hearing at 2.00 pm on 18 March 1999. TCN 9 was represented by counsel, as were the parties to the complaint, being the appellant and the VSIC. 9 The Tribunal granted leave to TCN 9 to be heard on its application, without specifically addressing the issue of whether TCN 9, a non-party, had standing to make the application under s.126. We deal with the question of standing below. 10 Before the Tribunal the application was put on two grounds. First, the name of the appellant was already in the public domain since his name had been published in the Tribunal's listing of the case and in the Law Notices. Secondly, to refuse leave would unfairly expose TCN 9 to a risk of prosecution for breach of s.126, in light of subsection (3). Subsection (3) provides: "For the purposes of this section, a reference to the name of the person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person." It was submitted that any report of the proceedings by TCN 9 would expose it to the risk of prosecution under subsection (3) in light of the previous publication of the appellant's name in the Lists. 11 The application was neither consented to nor opposed by the VSIC. The application was opposed by the appellant on the grounds that: (1) Unjustified damage would be done to his reputation and livelihood if publication of his name was permitted and the complaint was found to be groundless, particularly if TCN 9 later failed to publish the result of the hearing. In this regard, counsel for the appellant submitted to the Tribunal that although the complaints came to the Tribunal by way of a reference from the VSIC, the VSIC had not conducted an investigation which could be regarded as equivalent to a committal proceeding before a criminal court. It was submitted that the VSIC had not, for example, interviewed the complainants prior to referring the complaints to the Tribunal. This submission was not challenged before the Tribunal (or on this appeal). (2) While recognising the existence of a public interest in such cases, the public interest would be satisfied by the publication of the official report of the proceedings as contemplated by s.126(2). 12 In support of its application for consent, TCN 9 brought no evidence. There was no evidence or submission put that the circumstances of this case required publication in the public interest. No reference was made to any features peculiar to these proceedings as justifying the publication of the name of the appellant. The identification of the appellant in the Lists, of itself and without more, was said to provide the reason for the grant of leave. 13 The Tribunal granted consent, after hearing these submissions. Appeal to this Appeal Panel 14 The appeal came to this Appeal Panel after the Court of Appeal had, on 19 and 22 March 1999 considered an appeal from the grant of consent. The appeal was dismissed on the basis that an Appeal Panel constituted under the Administrative Decisions Act has jurisdiction under s.112 of the Act. That being so, the appropriate course was to follow the path of appeal provided by the legislation and to direct any appeal to an Appeal Panel. 15 Before this Panel, the appeal was brought for error of law. Leave was sought under s.113 of the Act to extend the appeal to a review of the merits of the decision granting leave. 16 Because the facts fall within a small compass, the Appeal Panel considered it appropriate to deal with the appeal on questions of law together with the merits appeal, and to decide at the end of the hearing whether or not to grant leave. No objection was taken to that course. 17 Fresh evidence was tendered, without objection, at the hearing of the appeal. That evidence included the four notices of inquiry sent to the appellant, detailing the complaints of misconduct which had been made against him and an affidavit by the appellant setting out the perceived consequences that publicity might have upon him, his family and his practice. The affidavit also referred to certain financial consequences which the appellant apprehended might follow if such publicity did indeed affect the earnings from his practice. 18 The Appeal Panel heard oral argument from counsel representing the parties and TCN 9 and was also assisted by detailed written submissions received from counsel. The Notice of Appeal 19 The Notice of Appeal alleged the following errors of law, that the Tribunal: "1. did not have the power to grant leave for TCN Channel 9 to make application for consent to publish and broadcast the name of the Appellant pursuant to section 126 of the Administrative Decisions Tribunal Act (pages 2-3); 2. did not take into account the position of the parties to the proceedings on the application for leave by TCN Channel 9 (page 322 of the transcript); 3. erroneously considered section 57 of the Community Services (Complaints, Appeals and Monitoring) Act 1993 given the legislature's clear intent by including section 126 of the Administrative Decisions Tribunal Act for all proceedings before it (pages 3-5); 4. failed to have regard to section 126, in particular section 126(2) of the Administrative Decisions Tribunal Act when considering the effect of the Objects (section 3) of the Administrative Decisions Tribunal Act (pages 6-7); 5. erroneously considered the procedure before the former Veterinary Surgeons Disciplinary Tribunal given the legislature's clear intent by including section 126 of the Administrative Decisions Tribunal Act in circumstances where the former provisions had no equivalent to section 126 (page 9); 6. incorrectly qualified section 126 in light of section 75 of the Administrative Decisions Tribunal Act (page 10)." 20 The grounds on which leave was sought were not specified, however the grounds of appeal on the question of merit were that the Tribunal: "1. did not take into account the prejudice likely to be visited upon the Appellant in granting consent pursuant to section 126 of the Administrative Decisions Tribunal Act; 2. granted consent pursuant to section 126 of the Administrative Decisions Tribunal Act in circumstances where the evidence before the Administrative Decisions Tribunal was untested; 3. granted consent pursuant to section 126 of the Administrative Decisions Tribunal Act in circumstances where the proceedings have not finally been determined." The Decision at First Instance 21 The judgment, given 18 March 1999 deals together with the application for consent under s.126 and an application for a suppression order under s.75 of the Act. The latter application was made by the appellant after the President of the Tribunal raised the matter in the course of argument on the s.126 application. 22 We think it is unfortunate that the s.75 application was made. This seems to us to encourage a multiplicity of applications when all relevant issues would or should be fully ventilated on the application for consent under s.126. It may also have - and in this particular case probably did have - the unfortunate consequence of confusing where the burden of proof lies. Under s.126 the burden of proving a reason for the grant of consent to publish lies squarely upon TCN 9, whereas in seeking a suppression order the onus lay on the appellant. 23 The decision of the Tribunal at first instance was delivered by the President ex tempore. His Honour first referred to s.75 of the Act and concluded that subsection (3) shows a legislative intent that: "proceedings that are in the nature of public hearings dealing with applications and complaints where final determinative orders are intended to be made are again seen by the legislation as appropriate to conduct in public". Certainly, there is no doubt that s.75 directs that hearings be open to the public in the absence of a contrary order by the Tribunal. 24 His Honour, however, apprehended that there was inconsistency between ss.75 and 126 and found it necessary to reconcile them. In so doing, at paragraph 11 of the judgment, his Honour took into account the objectives of the Tribunal as stated in s.3(f) and (g) of the Act. These subsections provide: "(f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs, (g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales." 25 His Honour stated that: "Both of those objectives, to me, seem in general terms to be aimed at ensuring that there is a sufficient environment of openness surrounding the proceedings of this Tribunal so as to enable those whose conduct is affected by the legislation to be encouraged to see their conduct in light of the rulings, and so on, that emanate from the Tribunal and, similarly, that the citizens of New South Wales have their interests addressed ... in that there is seen to be value in the existence of a public institution of this kind in fostering better conduct by administrators towards citizens." 26 Following from that, his Honour said, at paragraph 18: "The matter has now been referred to a Tribunal which I would argue is entitled to sit as a public tribunal and that includes to have publicity attached to the work of the tribunal." 27 From this his Honour concluded that he "should not likely refuse consent" under s.126 to publish the names of a respondent or witness. His Honour held, at paragraph 22: "But I think I have got to read the principal prohibition [in s.126] in light of the higher value that the legal system has attached to openness in proceedings and the values that are expressed in s.75. To some extent, at least, s.126 has to be qualified in light of s.75." 28 We turn now to the Notice of Appeal. Ground 1 of the Appeal on Questions of Law 29 The Appellant submits that the Tribunal erred in that it did not have power to grant leave to TCN 9 to make the application for consent to publish and broadcast the name of the appellant pursuant to s.126 of the Act. We consider that power is impliedly given by s.126. 30 The Act does not provide who may apply for consent under s.126. The prohibition in the section is directed to any "person" and subsection (2), by referring specifically to the "publication or broadcasting" of material, makes it clear that the prohibition in the section includes and is directed to media interests. The Tribunal's Interim Rules 1998 do not provide for applications under s.126 of the Act. 31 TCN 9 was not a party to the proceedings before the Tribunal at first instance, nor was it joined or sought to be joined as a party to the appeal. By Rule 41, the parties to an appeal are, relevantly, the persons who are parties to the proceedings before the Tribunal for the original decision, as specified in s.67(1) of the Act. By s.67(4) of the Act, as amended in 1998, the Tribunal may make a person who is not a party to proceedings for an original decision a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are likely to be affected by the original decision. 32 The Tribunal at first instance did not join TCN 9 as a party to the proceedings. On this appeal the question of liability for costs arose, should TCN 9 be unsuccessful. Counsel for TCN 9 submitted that: (1) TCN 9 was a party under s.67(1)(a), being a person who, being entitled to do so, has duly applied to the Tribunal for an original decision. "Original decision" is defined by s.7 as a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision-maker. "Decision" is in turn widely defined by s.6 and includes giving consent or doing any other act or thing. TCN 9's application for leave under s.126 was said to be an original decision within s.67(1)(a). (2) TCN 9 had implied standing, to make the application whether or not it was a party, since s.126, by prohibiting publication or broadcasting, impliedly contemplates that media interests may seek consent for publication of broadcasting. (3) TCN 9 was a party, in any event, since it was named as the First Respondent in the Notice of Appeal. 33 Section 67(1)(a) requires a finding that TCN 9 was "entitled" to make its application under s.126. The better view would seem to be that an applicant for consent under s.126 who is neither the original complainant nor the original respondent, requires the leave of the Tribunal to make such an application and has no entitlement to do so within the meaning of s.67(1)(a). 34 However, s.126 implicitly contemplates that persons other than the parties to the originating process may, at least with leave, apply for consent to publish the names of the respondent and/or witnesses. 35 We suggest that the appropriate course in future cases, once leave to apply for consent is granted, is for the Tribunal to join the applicant as a party for the limited purpose of making the application under s.126. The joinder of parties is dealt with in s.67(4). That subsection, as amended in 1998, provides: "The Tribunal may, by order, make a person who is not a party to proceedings for an original decision or review of a reviewable decision a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are likely to be affected by the original decision (or are affected by the reviewable decision)." 36 Section 67(4) may not extend to a situation such as this since the expression "original decision" in subsection (4) may be limited to the decision sought in the substantive proceedings. However, the Tribunal has power under s.73(1) of the Act to determine its own procedure and this empowers the joinder of an applicant who might not fall within the scope of s.67(4). 37 Once joined as a party for that limited purpose in the proceedings below, the applicant will be a respondent to any appeal and these procedural questions can be avoided in future cases. 38 TCN 9 having been granted leave to make the application by the Tribunal below, must be heard on this appeal in accordance with the normal principles of procedural fairness. This is in accordance with the authorities dealing with suppression orders which have held that media organisations should be heard by the Court in relation to the revocation or continuance of suppression orders once made, since their interests are affected by the order. 39 In any event in this appeal, TCN 9 has undertaken to submit to any order for costs on the basis that it is a party or alternatively, as if it were a party. Ground 2 of the Appeal on Questions of Law 40 The appellant alleges a denial of procedural fairness in that his counsel was not heard on TCN 9's request for leave to make the application under s.126. 41 It is true that the Tribunal granted leave without inviting the parties to indicate whether they consented or opposed that course. It is also true that the parties were not invited to put submissions to the Tribunal on the question of whether leave should be granted. However, both parties were represented by counsel and were present when the application was foreshadowed by his Honour and also when leave to apply was sought and granted. They had the opportunity to request that they be heard but failed to do so. The appellant made no objection when leave was granted to TCN 9 to make an application under s.126. 42 Accordingly, we do not consider the appellant can complain of procedural unfairness in the circumstances. Third to Fifth Grounds of Appeal on Questions of Law 43 These grounds allege factors which the appellant says the Tribunal erroneously took into account or, in the case of grounds 2 and 4, failed to take into account in the exercise of its discretion to grant leave. 44 The Administrative Decisions Tribunal is a statutory body. Its nature and functions have many similarities to a court of law. It is presided over by a District Court judge and the Deputy Presidents are legal practitioners, including another judge of the District Court of New South Wales. Its members include judicial members who are legal practitioners of at least seven years' standing. The Tribunal also has lay members. This Appeal Panel is constituted by two legal practitioners and one lay member. The Tribunal has power to make a wide range of orders including directing in its Legal Services Division that a practitioner's name be removed from the Register. Rights of appeal to the Supreme Court are given. See the discussion of a similarly constituted Tribunal in Walton v McBride (1995) 36 NSWLR 440 at 471-472, per Cole JA. 45 The Act does not constitute the Tribunal as a court of record. However, the Tribunal exercises functions of a judicial or quasi-judicial nature. The grant of consent under s.126 is one of those functions and, accordingly, the Tribunal's discretion should be exercised according to the well-known passage in House v The King (1936) 55 CLR 499 at 504-505 where the High Court said: "If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed ..." 46 If the Tribunal made such an error in exercising its discretion, that constitutes an error of law which is properly the subject of an appeal on questions of law. In contrast, the weight to be given to matters which the Tribunal has properly considered is a matter within the discretion of the Tribunal and can only be considered on a merits appeal. 47 We do not consider that there was any miscarriage of the Tribunal's discretion in relation to the matters identified in grounds 3 to 5 of the Notice of Appeal for the following reasons. 48 In ground 3 the appellant submits that his Honour erred in taking into consideration the former s.57 of the Community Service (Complaints, Appeals and Monitoring) Act 1993. It was submitted that his Honour was erroneously influenced by the legislative history of the section since s.57 had a much more limited sphere of operation than s.126 which applies to all Divisions of this Tribunal. We do not accept this submission. It is proper to consider the legislative history of a section in considering the intent and proper interpretation of the provision. In this case his Honour merely referred to s.57 and noted the policy which lay behind that provision in its application to the Community Service Act. His Honour did not draw any conclusion from the history of the provision and it had no bearing on his Honour's decision, as we read it. 49 Ground 4 alleges that his Honour erred in failing to take the objectives of the Act into account when considering s.126. We do not accept this submission. His Honour clearly took the s.3 objectives into account in considering the application for a suppression order, that application being dealt with at the same time as the application for leave under s.126. 50 Further, it is clear from paragraph 11 of the judgment that his Honour took into account the general objectives of the Tribunal in seeking to "reconcile" ss.75 and 126 of the Act and had those objectives clearly in mind when considering both sections. Although the objects were expressly referred to in relation to the s.75 application only, and were not expressly reiterated in that part of the judgment commencing with paragraph 22 which dealt with the application for consent under s.126, the judgment when read as a whole shows those objectives were not disregarded. 51 The appellant put the further submission that his Honour failed to take account of s.126(2) which provides: "This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section." His Honour made reference to s.126. We infer that all subsections were considered in reaching the decision. 52 Ground 5 alleges that his Honour erred in law by considering the procedure before the former Veterinary Surgeons Disciplinary Tribunal, given that the Act which governed that Tribunal contained no equivalent provision to s.126. In paragraph 20 of the judgment, his Honour referred to the procedure of the former Veterinary Tribunal. That reference was made in the context of considering the s.75 application which his Honour dealt with before turning, in paragraph 22, to the application under s.126. However, in the judgment there is considerable overlap of the two applications and, as we have said, it is necessary to read the judgment overall rather than seeking to distinguish between the s.75 application and the decision to grant consent under s.126. 53 We do not accept that his Honour was led into error by reliance on the practice of the former Veterinary Tribunal. Rather, his Honour in paragraph 20 referred to that practice as providing some comfort perhaps, after having reached the conclusion on other grounds that a suppression order should not be granted. Ground 6 of the Notice of Appeal 54 This brings us to ground 6, which alleges that his Honour erred by qualifying the operation of s.126 by reference to s.75 of the Act. 55 We agree. It seems to us, with respect, that the Tribunal at first instance was led into error by the finding that ss.75 and 126 were inconsistent, could not co-exist and by giving a "higher value" to s.75 than to s.126. 56 Section 75 provides that the proceedings of the Tribunal shall be conducted in public unless a suppression order is made under subsection (2). A public hearing allows members of the public, including members of the media, to attend and observe the proceedings and to report them to the extent that publication is not restricted by contrary provision. When the determination of the Tribunal is published, that official report of the proceedings may be published and this is expressly provided for by s.126(2). The name of the respondent and often the names of witnesses will appear in the judgment which is published on the Internet. 57 The prohibition in s.126 does not prohibit the reporting of proceedings before the Tribunal. It does not prevent fair comment upon the decision of the Tribunal. What is prohibited by s.126 is the publication of the name of or the identification of a respondent or witness otherwise than by publishing the official report of the proceedings, where consent has not been granted. 58 This does not conflict with the direction that the proceedings should be conducted in public, rather it limits the use to be made of information given in open court at a time when that information may be largely untested and prior to the Tribunal's assessment of that information. 59 We now turn to the reasoning of the Tribunal below. His Honour in paragraph 18 held that s.75 by directing the Tribunal to sit in open session, implicitly confers an entitlement "to have publicity attached to the work of the Tribunal". His Honour then, without giving reasons, concluded that s.75 and the legal system in general attach a "higher value" to openness in proceedings than should be accorded to the express prohibition on publication of names contained in s.126. The conclusion that s.75 requires publicity (relevantly, to be given to the names of the parties and witnesses) led his Honour to further conclude that sections 75 and 126 are inconsistent to the extent that s.126 expressly prohibits the publication of names, without leave and to hold: "To some extent at least section 126 has to be qualified in light of section 75" 60 With respect, we consider that his Honour erred, first, in holding that s.75 requires that publicity attach to all aspects of the proceedings. Section 75 simply directs that hearings be open to the public. Although in absence of contrary provision the publication of names would be permitted, this follows as a consequence of the admission of the public, not because s.75 confers an entitlement upon the Tribunal to have its work publicised or broadcast. 61 Secondly, there is no indication in the Act that the subject matter of s.75 is of higher value than the matters dealt with in s.126. Section 126 was introduced into the Administrative Decisions Tribunal Act to govern all of the Divisions of the Tribunal. No similar provision was found in the Veterinary Surgeons Act 1986 (NSW), nor in the primary legislation governing most of the other tribunals which have now been brought under the umbrella of the Act. Accordingly, the section expresses a clear legislative intention to prohibit the publication or broadcasting of the names of respondents or witnesses, unless there is reason to grant consent for publication. 62 The sections of a statute should be construed in light of each other and the Act as a whole to achieve, as far as possible, their apparent legislative intent. There is nothing in s.75 or the Act as a whole to suggest that s.75 is intended to override or negate the clear intention expressed by s.126. Section 126 is an uncommon provision which was no doubt inserted deliberately and which must be given its full effect according to its terms. 63 Thirdly, to the extent that s.75 intends to make any statement about publication of names, this is an implicit statement only which should not be interpreted to override the express prohibition in s.126 which is in clear and unequivocal terms and deals specifically with these issues. 64 Fourthly, his Honour failed to consider that a penalty attaches to a breach of s.126. That suggests that s.126 is intended to take effect according to its terms and is not to be read as impliedly restricted or qualified by s.75. 65 Fifthly, his Honour, in paragraph 22, commenced his discussion of s.126 by saying "I should not lightly refuse consent". This is an inversion of s.126 whereunder the onus of proof is clearly upon the applicant for consent who must provide persuasive reasons to the Tribunal and, in an appropriate case, call evidence relating to the facts and circumstances of the case at hand. To adopt a preference in favour of consent is to ignore the specific prohibition in s.126, a prohibition which the legislature regarded as sufficiently important to impose a penalty for its breach. That approach as a practical matter reverses the onus of proof. Under s.126 the onus is on the applicant for consent to show reasons why consent should be granted. The Tribunal should not start from the position that it will grant consent unless persuaded not to do so. 66 That approach might lead the Tribunal into further error by granting consent in the absence of any evidence, or any persuasive evidence from the applicant to justify the grant of consent. We believe that such an error occurred in this case. In granting consent the Tribunal failed to consider the facts and circumstances of the case before it. TCN 9 pointed to no reason why it was necessary or desirable in the public interest or in its own interests, to publish the name of the respondent. The only factual matter relied on was the publication of the respondent's name in the hearing lists and this matter did not bear on the decision of the Tribunal below. 67 Accordingly, we grant the appeal on a question of law and consider the appropriate course is to make an order under s.114(2)(c). 68 During argument, we were referred to the authorities dealing with the making of suppression orders by the courts or directing that a hearing or part of a hearing be held in closed court. However, none of those cases concerned statutes containing a provision equivalent to s.126 and accordingly we consider that they do not directly bear on the question of the proper interpretation of that provision. Leave to Appeal on the Merits 69 We grant leave under s.113(2)(b) to extend the appeal to a review of the merits of the Tribunal at first instance. We do so in light of the error of law we have found and because we consider this to be the most expeditious course to adopt in the circumstances of this case. 70 Because we have decided that error of law is established in this case, it is not necessary to consider whether an appeal on the merits is competent in a matter where error of law is not established. This question arises by reason of the wording of s.113(2) of the Act which states: "An appeal: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision." 71 We are of the view that it is strongly arguable that a merits review may be available in an appeal alleging error of law, notwithstanding that no error is ultimately found. However, this question does not arise for decision in this case. The Appeal on the Merits 72 In relation to the merits appeal, we find the first ground is not established. His Honour had no evidence of hardship or prejudice before him. However, on the appeal an affidavit going to prejudice was tendered and we have considered that evidence in deciding what is the correct and preferable order to be made. 73 Grounds 2 and 3 of the merits appeal are part of the wider context that the Tribunal below failed to consider the circumstances of the case before it. These factors are relevant to the grant of consent. The discretion to grant consent under s.126 cannot be exercised in vacuo. It must be exercised in all the circumstances of the particular case. 74 On the merits appeal we consider that the factors identified in grounds 1-3 are relevant factors. The hardship to the appellant, although relevant, should carry no special weight. We accept that the complaint made against him has not been the subject of the close scrutiny accorded by committal proceedings and ultimately the complaints may be dismissed. In the meantime, irreparable damage may be done to his career and livelihood if his name is published at such an early stage of the hearing into the complaints. 75 We note that at the time that leave to publish the appellant's name was sought, the evidence for the VSIC was largely untested in a Tribunal which is not required to follow the rules of evidence. 76 We have also considered, as part of the circumstances, whether the previous publication of the appellant's name in the Lists would be unlikely to lead to prosecution of TCN 9 for breach of s.126. We think this is quite improbable. Any identification of the appellant by cross-reference to the Lists would come about by the conduct of a reader, not of TCN 9. 77 We have received no evidence of any public interest in the particular complaints which are the subject of these proceedings. TCN 9 gave no reason why the public interest would not be equally well served by publishing a report of the proceedings after judgment. 78 Accordingly, we decline to grant consent under s.126. 79 In so doing we make the observation that considerations of hardship would be less compelling if the complaints or some of them were admitted or the complainant's evidence has been tested by cross-examination and showed a strong prima facie case. In this matter, the hearing was still in its early stages. However, a fresh application for consent made on different evidence and at a later stage in these proceedings may produce a different result. 80 We make the following orders: 1. Appeal on error of law allowed. 2. Grant leave for the appeal to extend to a review of the merits of the appealable decision. 3. Appeal on the merits allowed. 4. Set aside the decision of the General Division made 18 March 1999. 5. Refuse the application under s.126 by TCN Channel 9 Pty Limited for consent to publish the name of the appellant. 6. Direct any application under s.88 for costs to be made in writing within 21 days together with a supporting affidavit. Reasons for Decision of Mr M. B. Smith. Introduction 81 This is an appeal to an Appeal Panel of the Tribunal brought by a veterinary surgeon against an interlocutory order made by the Tribunal in the course of proceedings relating to his professional conduct on reference by the Veterinary Surgeons Investigating Committee under the Veterinary Surgeons Act 1986 (NSW). The order had the effect of exposing the appellant to being identified in the course of reports of the proceedings in broadcasts by TCN Channel Nine Pty Ltd ("TCN"). The principal proceedings 82 Under s 27 of the Veterinary Surgeons Act the Investigating Committee is obliged to investigate complaints of various descriptions concerning registered veterinary surgeons. It has powers under s 28 to dismiss a complaint, impose disciplinary orders short of suspension or removal from the register or fines, or to refer a complaint to the Tribunal. The latter course is required if it is "satisfied that a prima facie case has been made out" and it "considers that the complaint is sufficiently serious to warrant its being referred to the Tribunal". 83 The powers of the Tribunal are set out in s 32. If a complaint is proved to its satisfaction, it may reprimand, caution, suspend from practice, direct removal from the register, fine up to $10,000, impose conditions on practice, and make costs orders. If the complaint is not proved, but the Tribunal considers the conduct of the veterinary surgeon was "sufficiently unacceptable to warrant the making of the complaint", it may impose a reprimand, caution or conditions on practice. 84 The Tribunal's jurisdiction to inquire into a referred complaint leads to the making of an "original decision" as defined in s 7 of the ADT Act, and referred to in ss 36 and 37 of that Act. Under Sch 1 Pt 4 s 7 of the ADT Act the Tribunal is required to be constituted for its inquiry by a Veterinary Disciplinary Panel consisting of a judicial member of the General Division of the Tribunal, a non-judicial member who is also a member of the Board of Veterinary Surgeons, and a non-judicial member who is not a veterinary surgeon and has been assigned on the recommendation of the relevant Minister to represent the interests of users of veterinary services. 85 The reference to the Tribunal in the present case is of complaints which have been formulated and particularised in four documents headed "Notice of Inquiry". These contain numerous allegations of professional misconduct concerning the appellant's: + procedures when treating a cat called "Total Eclipse" for suspected ringworm in February 1997; + procedures and record-keeping when treating a horse called "Gypsy", which died while in his care in December 1995 and January 1996; + procedures and record keeping when treating a dog called "Chisel" with two fractured legs in February 1996; and + procedures and record keeping when treating a dog called "Remus", which died while in his care in February and March 1997. 86 There is no evidence before us as to what, if any, hearing was conducted by the Committee before referring these matters to the Tribunal. I am left with an impression from what was said from the bar table that the present hearing by the Tribunal is providing the appellant with his first opportunity to receive fully particularised allegations and to defend himself in relation to those allegations, at least with any thoroughness. 87 We were informed that the Tribunal commenced its hearing on Monday 15 March 1999. The Committee appeared by counsel as the prosecuting complainant, and it was apparently decided to complete the taking of evidence from both sides in relation to each complaint seriatim, before moving on to the next complaint, with submissions on all matters being left until all the evidence had been taken. 88 At the start of the hearing the appellant's counsel sought "the affirmation of section 126 in relation to no publication of these proceedings", to which his Honour the President of the Tribunal, who was presiding, responded: "I think I will simply indicate for the record that there has been an application made in respect of s 126. How s 126 is constructed is that it prohibits the publishing or broadcasting of various particulars that are set out in that provision and it's fairly clearly a provision that doesn't sit easily alongside the usual provision that applies to the Tribunal which is section 75 of the Act, which declares that the Tribunal's proceedings are open to the public and then has provisions of the usual kind in relation to suppression orders. It's clearly an internal inconsistency in the legislation. I'm simply indicating in case there are any applications during the course of proceedings for the consent of the Tribunal to publish or broadcast names of persons they would then have to be dealt with. If there are any media present they would have to make application somehow to us, probably by notifying the registrar that they wish to make an application. It is an area of the Act that has already been drawn to attention and I expect will be the subject of amendments. As it is you are certainly entitled to refer to it and there is no objection. I simply note that section 126 applies to these proceedings." 89 The hearing then continued on 15, 16, 17 and 18 March until it was interrupted by an application by TCN for consent to broadcast the name of the appellant. We were informed that at that time the Committee's witnesses in relation to the first complaint had completed their evidence, and that appellant had been cross-examined on his statement in relation to that complaint but had yet to be re-examined. 90 TCN's application led to the Tribunal's decision which is under appeal. The principal proceedings were adjourned while the appellant sought review, at first in the Supreme Court, and then in the current appeal to us. By the time of our hearing, they had resumed. The Tribunal was hearing the evidence in relation to a second complaint, but had not yet heard evidence from the appellant. We were informed that the hearing of the substantive proceedings was about to be adjourned until further dates in June. Statutory controls on publication of the proceedings 91 Although s 27(3) of the Veterinary Surgeons Act directs that the proceedings of the Investigating Committee "shall be held in the absence of the public", a chairperson of the Committee may give directions under s 29(2) and s 29(3) which permit the publication in "a publication intended primarily for the use of the legal or veterinary profession" of evidence, the subject-matter of the complaint, or the reasons and decision of the Committee. 92 There is no evidence that there were any directions which allowed publication of any details of the proceedings before the Investigating Committee in the present case. 93 There is no evidence suggesting that the subject matter of the proceedings have ever been aired in public. TCN sought before us and below to support the giving of consent by reference to the fact that the appellant's name had already appeared in the listing of the proceedings in the Sydney Morning Herald Law Notices and in hearing notices immediately adjacent to the Tribunal's hearing rooms. It produced no evidence that the appellant had been relevantly referred to in any other publication. 94 Before the Tribunal, publication of the proceedings is controlled by s 75 and s 126, which provide: Proceedings on hearing to be conducted in public 75(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public. (2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order that the hearing be conducted wholly or partly in private, (b) an order prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (3) Mediation sessions and neutral evaluation sessions under Part 4 are to be conducted in private. Publication of names or identification of persons involved in proceedings 126(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. TCN's application 95 As I have indicated above, no orders under s 75 or s 126 were sought from nor given by the Tribunal prior to the fourth day of the hearing. The hearing therefore proceeded in public, with the identity of the appellant, witnesses and other persons involved being protected from publication or broadcasting by s 126. The appellant's name appeared in the listing of the case outside the Tribunal hearing room and in the Sydney Morning Herald Law Notices. In my opinion, if these amounted to a "publication" within s 126 they were exempted as "an official report of the proceedings" within s 126(3). So too will be the publication of a decision given by the Tribunal in the proceedings and the reasons given for it. 96 TCN's application was not in writing and was made with minimal notice to the parties. According to the transcript, the President announced before lunch on the 18 March that an application would be made at two o'clock. At that time counsel for TCN appeared and announced: "I would seek leave to be heard by the Tribunal concerning an application by my client, TCN Channel 9, for consent of the Tribunal to broadcast the name of the vet, the subject of these proceedings" 97 The President thereupon granted leave, without inviting any submissions from the counsel for the appellant and the Committee, but without any objection from either of them. No evidence was presented by anyone in relation to the granting of consent, and no application was made for an adjournment to allow evidence to be prepared or for any other purpose. Submissions on whether a consent or other order concerning publications were made by counsel for TCN, the appellant and the Committee. The appellant opposed TCN's application for consent under s 126(1), and sought a suppression order under paragraphs (b), (c) and (d) of s 75(2). 98 Immediately at the conclusion of these submissions, the Tribunal announced that the application under s 75 was refused and that the application under s 126 was granted. His Honour gave the Tribunal's reasons ex tempore. 99 Before continuing the narrative, this is a convenient point at which to address a submission made by the appellant that he was denied procedural fairness in the procedure which was followed by the Tribunal before granting consent to TCN. In particular, he complained that the Tribunal did not hear from the appellant or the Committee before granting leave to TCN to appear and make its application. 100 In my opinion, there is no substance to this objection. The appellant was represented when leave was sought, and it was open to his counsel to object or to seek an adjournment or seek any other order in opposition to the application. No objection was taken, and his counsel acquiesced in the procedure which was followed by the Tribunal. Plainly, the appellant and his legal representatives were well aware of the effect of s 126, since the section had been referred to on the first day of the hearing. No doubt the Tribunal was not obliged to entertain TCN's application immediately, but could have adjourned it if it caused an inconvenient disruption to the proceedings or if a party requested time to answer it (c.f. John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 at 153F and Nationwide News Pty Ltd v District Court of NSW (1996) 40 NSWLR 486 at 498F). However, the appellant took no objection to the course taken by the Tribunal, and in my opinion was not denied procedural fairness (c.f. R v Marks; ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 147 CLR 471 at 482, 499; Collins and Collins (1990) FLC 92-149 at 78,039; University of Ceylon v Fernando [1960] 1 All ER 631 at 641; Secretary, Department of Social Security v Jordan (1998) 83 FCR 34 at 44 and 48). The Tribunal's reasons for giving consent 101 The Tribunal's reasons refer to the bringing of the two applications, and continue: 6. The interaction of these two provisions is a difficult matter to address and I made some comments at the beginning of day one in relation to these provisions. My understanding is that section 126 of the Administrative Decisions Tribunal Act essentially parallels a provision previously found in section 57 of the Community Services (Complaints, Appeals and Monitoring) Act 1993. But, of course, that provision, section 57 of that Act, when it appeared in that Act, was confined to the jurisdiction dealt with by that legislation. That jurisdiction in the case of this new Tribunal, Administrative Decisions Tribunal, is exercised in a division known as the Community Services Division. My understanding of the policy lying behind that provision, section 57, in that context was that it sought to address the fact that routinely the old Community Services Appeals Tribunal dealt with the affairs of people who might generally be described as vulnerable people who were usually in the care and management of the community services portfolio directly through one of its agencies or by people authorised by the agencies in that portfolio to undertake care and management of those people. 7. The context in which section 57 operated was one which, from a community point of view, was understandable as to the desirability of protecting the identity of people who might be witnesses in those sorts of proceedings. 8. Nevertheless, that limitation is not present in the provision as it has been received into the Administrative Decisions Tribunal Act and it does operate generally as has been observed by Ms Green on behalf of Dr Lloyd. On the other hand, I have to look at that provision in the context of legislation which also includes section 75. Section 75 does express the general proposition that is well known, of course, in the justice system that the proceedings of the courts and Tribunals are open to the public. How that proposition is expressed here is that "If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public" (s 75(1)). 9. As has been observed there are then provisions, which are not unusual in legislation governing Tribunals, which allow for suppression orders to be made in various circumstances along various lines (s 75(2)). 10. It is instructive, I think, to have some regard to subsection 3 of section 75, which addresses the question of what proceedings under the Act are to be conducted in private, in absolute terms, and it refers there to mediation sessions and neutral evaluation sessions. That tends to suggest that proceedings that are in the nature of public hearing dealing with applications and complaints where final determinative orders are intended to be made are again seen by the legislation as appropriate to conduct in public. 11. In seeking to reconcile these provisions I have had regard to the following considerations: One is the general objectives of the Administrative Decisions Tribunal. Those general objectives appear in section 3 of the Act and whilst the language of them is addressed to what might be called the quality of government administration I think they are of assistance in formulating an approach to these applications. 12. You will see that two of the objectives ((f) and (g)) towards the end of the list are: "To foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs," and "To promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales." 13. Both of those objectives, to me, seem in general terms to be aimed at ensuring that there is a sufficient environment of openness surrounding the proceedings of this Tribunal so as to enable those whose conduct is affected by the legislation to be encouraged to see their conduct in light of the rulings, and so on, that emanate from the Tribunal and, similarly, that the citizens of New South Wales have their interests addressed, really, by paragraph (g) of the objectives in that there is seen to be value in the existence of a public institution of this kind in fostering better conduct by administrators towards citizens. 14. I think you can analogise those objectives to the professional discipline area much in the manner as Mr Burchett suggested. Though he did seem to concentrate on the role that the Tribunal might play in respect of fostering good standards among veterinarians, I would seek to add to that, in light of section 3, that there is also a need to foster understanding on the part of citizens, that is the clients of veterinary surgeons, as to what might be good practice as well. 15. The importance of openness of proceedings to the quality of justice an to the community's confidence in the justice system I think is acknowledged by all. (Unfortunately I have not got with me in the few minutes research time available a very illuminating judgment on this; it is a Queensland Supreme Court decision from around about 1993 and later when I edit these comments I will incorporate a reference to that decision.) In that decision a Judge dealt at some length with the history of the principle of openness of proceedings in the common law. 16. It is probably evident from those comments that I am not well disposed to suppressing the name of the respondent in these proceedings from publication pursuant to section 75. I say that conscious, obviously, of the gravity of these proceedings and the consequences that publicity may have in its own right, whether fair or unfair, for the reputation of the practitioner. 17. It does seem to me that the professional disciplinary scheme under the veterinary surgeons legislation is a tiered scheme of professional discipline. 18. I think the analogy to committal is a reasonable one. There has been a history of prior private examination of this matter. The matter has now been referred to a Tribunal which I would argue is entitled to sit as a public Tribunal and that includes to have publicity attached to the work of the Tribunal. 19. In those circumstances, whilst I accept the possible consequences that might be involved, it seems to me that the legislation supports that point of view. 20. I might add in addition that the position I have expressed seems to have been the position that has applied historically to the former Veterinary Surgeons Disciplinary Tribunal. It basically proceeds in the open unless an application to do otherwise is successful (see Veterinary Surgeons Act 1986 section 31, now repealed). 21. The application for a suppression order under section 75 is rejected. 22. That brings me to the question of s 126. It seems to me to follow, in light of what I have said, that I should not lightly refuse consent. In making these comments I appreciate that it may be argued that the principal rule is a rule of prohibition subject to an exception and the exception should not readily be permitted to be activated. But I think I have got to read the principal prohibition in light of the higher value that the legal system has attached to openness in proceedings and the values that are expressed in s 75. To some extent at least section 126 has to be qualified in light of section 75. 23. As to the matter of the application made by Channel 9 I am prepared, in light of the views I have already expressed, to give the consent, but obviously I am less than happy with a situation where the consent flows in favour of one media organisation and not more generally. That seems to me to be an outcome which is really somewhat at odds with what I have already said about section 75 and the openness of proceedings. Nevertheless, I am inclined to the view that as the only application I have before me is an application form one media organisation that is the only application I can grant. 24. The consent of the Tribunal that is given in respect of section 126 is a consent in favour of the applicant. The consent is limited to how I understood the applicant to be expressing itself; that is, it's a consent limited to identification of the respondent to the proceedings and no other witness in the proceedings. 102 In relation to his Honour's concerns about the ambit of the consent, I should indicate that in his submissions before us counsel for TCN accepted that it would have been within the Tribunal's power to grant a consent expressed in general terms for the benefit of all persons, including all media organisations. For myself, I can see no reason why, if one media organisation is to be granted an exemption to allow publications or broadcasts coming within s 126, the consent should not be framed as broadly as in the circumstances seems appropriate. An excursion to the Supreme Court 103 The appellant immediately sought to challenge the Tribunal's order under s 126 in the Supreme Court by way of application for prerogative orders and interlocutory relief. His summons was referred to the Court of Appeal, where on 22 March 1999 Mason P, Priestley and Stein JJA heard argument and indicated that they proposed to dismiss the summons on the basis that the appellant should follow the appeal procedures under the Administrative Decisions Tribunal Act 1997 (NSW) (see Lloyd v Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68). The Court made formal orders to this effect on 25 March, the reasons of the court being given by Priestly JA. 104 His reasons addressed the question, apparently raised by the court itself, of whether "the court should hear the summons in light of the appeal and review procedures available in the ADT Act" ( p 4, par [24]). In the course of this, he addressed the contention of TCN that the decision in question was not an appealable decision of the Tribunal within the meaning of Pt 1 of Ch 7 of the ADT Act. After giving the reasons I extract below, his Honour concluded that "this court should in this case at this stage be satisfied that Pt 1 of Ch 7 makes adequate provision for the claimant to seek an alternative review of the decision to grant consent under s 126, and in the circumstances of the case should decline to deal with the application for review contained in the claimant's summons" (p 11, par [24]). 105 Meanwhile, on 23 March 1999, the appellant filed the notice of appeal which is presently before us. An Appeal Panel hearing was convened on 25 March before the Court of Appeal reasons were available, at which directions were given for the appeal to be argued on 9 April and for the prior filing of submissions and evidence. A stay of the Tribunal's order of 18 March was given until the determination of the appeal. The Jurisdiction of the Appeal Panel 106 The parties and the Tribunal are bound to accept the conclusion of the Court of Appeal that an appeal by the appellant from the decision under s 126 is within the jurisdiction of the Appeal Panel. However, it is necessary to consider Priestley JA's reasoning, so as to discover the extent that it informs the construction of s 126 and the powers of an Appeal Panel. Some comments on its implications may also be appropriate. 107 Section 113(1) provides: "A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel". An appeal "may be made on any question of law" and "with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision" (s 113(2)). 108 Section 112(1) provides: "For the purposes of this Part, an appealable decision of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for: (a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or …." 109 Section 7 defines an "original decision" as: "a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision-maker". 110 Section 34(1) of the Veterinary Surgeons Act gives a right to "appeal against an order made under section 32 to an Appeal Panel of the Tribunal under Part 1 of Chapter 7" of the ADT Act. 111 Discussing these provisions, Priestly JA said: "… when a sufficiently serious complaint within the meaning of s 28(1)(c) of the VS Act is referred to the Tribunal then the proceedings before the Tribunal are proceedings for an original decision within the meaning of those words in s 112(1)(a). For the decision to give consent under s 126 to be an appealable decision within the meaning of s 112(1) it must then be "a decision of the Tribunal … made in proceedings for: (a) an original decision" described in par (a). That is, the critical question raised on behalf of TCN is whether it is a proper construction of s 112(1) to hold that the decision by which the Tribunal gave consent under s 126 was a decision "made in proceedings for: (a) an original decision" as described in par (a). For TCN it was submitted that the "decision … made in proceedings …" must be the original decision itself referred to in par (a). The opposing view is that it need not be itself that original decision, but simply a decision of the Tribunal made in the course of proceedings seeking an original decision of the kind referred to in par (a). Which of these two views provides the better construction is a question the answer to which cannot be said to emerge particularly clearly from the materials, but in my opinion the better construction is that "decision of the Tribunal … made in proceedings" includes a decision made in the course of the proceedings and is not confined to the principal "original decision" being sought in the proceedings before the Tribunal and described in par (a) of s 112(1). The view I favour seems to me to make better sense of the ADT Act and also to be a more straightforward reading of s 112(1). This construction may have the result that a great many interlocutory decisions fall within s 113, which could conceivably cause inconvenience to the Tribunal when constituted by an Appeal Panel. The view proposed by TCN could have the equally inconvenient result that although interlocutory decisions could not go to an Appeal Panel they could nevertheless be brought to this court by means of s 69 of the Supreme Court Act and s 122 of the ADT Act. Decisions such as to give consent under s 126 to a person to publish or broadcast the name of a person before the Tribunal could in some cases (the claimant believes it to be so in the present case) be of particular importance and possible prejudice to the person concerned. It seems to me that it is appropriate that there should be a s 113 right of appeal in respect of such decisions and the language of s 112, on a reasonable interpretation, in my opinion makes provision for such a right of appeal." 112 I would make the following observations on this reasoning: + It takes the opposite course to that taken by the Federal Court in relation to the right of appeal from decisions of the Commonwealth Administrative Appeals Tribunal. Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that "a party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding". In Director-General of Social Services v Chaney (1980) 31 ALR 571 at 591-4, 596 it was held that this referred to "a decision of the Tribunal which constitutes the effective decision or determination of the application for review", and "a ruling which effectively disposed of the proceedings or any independent part thereof". Chaney's Case has often been applied in the Federal Court (e.g.: Alcoa of Australia Ltd v Swiss Aluminium (1986) 9 ALD 345; Australian Postal Corporation v Nguyen (1996) 71 FCR 516), and its reasoning has been both followed and distinguished by the Court of Appeal in different contexts (e.g. Bromley v Housing Commission of NSW (1985) 3 NSWLR 407 at 416; Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720 at 722, 725; Custom Credit v Commercial Tribunal (1993) 32 NSWLR 489 at 493, 497, 499; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 507, 519, 523. See also: Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 at 495, 501; Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 559). + Like Priestley JA in the present case, the judgments in the above cases have often commented upon the inconvenience of appeals as of right on interlocutory decisions. Similar concerns have led courts of appeal to develop demanding principles on when and how they entertain interlocutory appeals (c.f. Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Paringa Mining and Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452 at 457; Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 664; Hollier v Registrar of the National Native Title Tribunal (1998) 82 FCR 186 at 188). In the present appeal, I will need to consider what weight to give to these considerations when applying the provisions of ss 113, 114 and 115 of the ADT Act in the context of an appeal from an interlocutory decisions. I doubt that an Appeal Panel is able to refuse to entertain the appeal upon the broad discretionary grounds available in judicial review proceedings, for example on principles of "non-fragmentation" (c.f. Algoni Pty Ltd v Retail Trade Industrial Tribunal (1987) 13 ALD 411 at 412; Australian Postal Commission v Hayes (1989) 23 FCR 320 at 323; Pancontinental Mining Ltd v Burns (1994) 52 FCR 454 at 464; Commissioner of Taxation v Beddoe (1996) 68 FCR 446 at 453; but note Custom Credit Corporation Ltd v Commercial Tribunal (supra) per Gleeson CJ at 493G). + The Court of Appeal's judgment may not have opened up for appeal every interlocutory direction, ruling or order made by the Tribunal in the course of a proceeding, since Priestley JA limits his reasons to "such decisions" as the giving of consent under s 126. It may remain arguable that an appealable interlocutory "decision" within the opening words of s 112(1) must have some final or substantive quality or be an "announced or published ruling or adjudication effectively resolving an actual substantive issue" (c.f. Boral Gas (NSW) Pty Ltd v Magill (supra) per Sheller JA at 523D and Mahoney JA at 519G; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-339, 365, 369, c.f. 377). + Priestley JA did not rest his conclusion upon an expansive reading of the definition of "original decision" in s 7, but appears to assume that this term encompasses only the ultimate, determinative decision made under authority of the legislation vesting jurisdiction in relation to the proceeding. Whether this assumption is correct was debated before us in submissions concerning TCN's standing before the Tribunal, with counsel for TCN arguing for an expansive view. He argued that TCN's application for consent initiated discrete proceedings for an "original decision" since the decision it sought was "in relation to a matter" under the Veterinary Surgeons Act, so that it was party to those proceedings pursuant to s 67(1)(a) of the ADT Act. On the same reasoning, it was a party to the appeal by reason of ADT Rule 41(1)(b), which refers back to s 67(1). As I shall explain below, I am able to find standing for TCN by different reasoning, and I therefore need not commit myself to any interpretation of the definition of "original decision". However, I note that the point is of importance beyond provisions defining who are "parties", since it has implications wherever the term "original decision" is used in the Act (e.g. in ss 41-46, 88(3)). For example, if an "original decision" includes decisions made on interlocutory applications, the Tribunal's obligations under s 89 in relation to the giving of reasons extend to interlocutory decisions. + Priestley JA does not examine whether and how the Tribunal acquired power to make an order granting a consent on the application of TCN, but he appears to assume the Tribunal's power to entertain that application and to make such a decision. Since this was a live issue in the appellant's challenge to the legality of the Tribunal's order, it is appropriate to understand the Court of Appeal's reasons as saying no more than that an Appeal Panel would have jurisdiction over a decision purporting to be made under s 126. That is, that the question of the Tribunal's power could be determined as a question of law in appeal proceedings under s 113. In this respect, it is significant to note that s 6(3) provides: Decisions made without power "(3) For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it." 113 I see no reason not to read the reference in this provision to "a decision that purports to be made under an enactment" as including a decision purporting to be made by the Tribunal under a provision of the ADT Act itself. The Tribunal's power to entertain TCN's application 114 The appellant argued that the Tribunal had no power to grant leave to TCN to make application for a consent under s 126. His counsel argued that "s 126 does not involve the imposition of orders on (TCN), rather it has an indirect affect (sic) upon persons including (TCN)". This invoked a distinction raised by Mahoney JA in John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 at 167-8 (Hope AJA agreeing at 169, c.f. Kirby P at 151-3) and in Nationwide News v District Court of NSW (1996) 40 NSWLR 486 at 491 (c.f. Meagher JA at 498, Priestley JA agreeing at 496). Counsel accepted that the Tribunal had power to make a consent which would benefit a media organisation, but the implication of his argument was that this could only be made on the initiative of the Tribunal itself or (perhaps) a party to the principal proceedings. 115 I do not accept this argument. In my opinion, the power of the Tribunal to grant the consent referred to in s 126(1) is, in the absence of any express conferral of power, to be found implicitly in the section itself. I would apply the approach of the High Court in Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302-3: "A legislative provision operating upon a specified determination of a Minister or other officer can readily be construed as impliedly conferring upon the designated Minister or other officer the statutory function of making the particular determination. Such a construction is likely to be clearly warranted in a case where the determination upon which the legislative provision operates is a determination to be made for the purposes of the particular provision and at a time when and in the circumstances in which the provision is called upon to operate, where no other statutory source of obligation to consider whether the determination should be made or of authority to make it is apparent, and where the legislative provision will be without effective content if no authority to make the requisite determination exists." 116 It seems consistent with this approach also to imply from the section itself a right to apply for a consent which is given to every "person" who wishes to enjoy its benefit so as to avoid the general penal consequence of the section. If it matters, I consider that the penal consequence of s 126 on such a person is more aptly described as a "direct" effect than an "indirect" effect. TCN therefore can be found to be entitled to make the application which it made to the Tribunal, regardless of whether for the purposes of other provisions of the ADT Act it can be regarded as a "party" to any "proceedings" in the Tribunal. In my opinion the implied right to apply for consent is unconditional, and not dependent upon obtaining the leave of the Tribunal - although of course the Tribunal can control the procedure and timing for making an application. 117 I find this approach preferable to the alternative approach argued by counsel for TCN, to which I referred above. This sought to overcome the objection that TCN was not a "party" within s 67 by characterising its request for a consent as an application for an "original decision" as defined in s 7. It located the Tribunal's power to entertain TCN's application by way of the general implication from the existence and function of the Tribunal that it has all the "powers which are necessary to enable it to act effectively within" its statutory jurisdiction (c.f. John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465 at 476, National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 581, NCSC v Bankers Trust Australia Ltd (1989) 24 FCR 217 at 221, 228, 232-3, Australian Securities Commission v Bell (1991) 32 FCR 517 at 522, 528); and Biochem Pharma Inc v Commissioner of Patents (1998) 82 FCR 87 at 94D). I do not need to address the correctness of these arguments. TCN's standing in the appeal 118 When locating TCN's standing to be heard as a respondent to the present appeal, I can again avoid the need to address whether TCN is a "party to proceedings before the Tribunal" within s 67, or is "a party to proceedings in which an appealable decision of the Tribunal is made" within s 113(1). This can be left to a future date when a media organisation itself seeks to appeal under s 113(1) against the refusal of a s 126 consent. 119 This is because I accept that the principles of procedural fairness must entail that TCN, having obtained from the Tribunal at first instance the benefit of a s 126 consent, must be heard on the hearing of the appellant's appeal against the giving of that consent. I can find no provision in the ADT Act excluding this right, and certainly not with "clear contrary legislative intent" (c.f. Annetts v McCann (1990) 170 CLR 596 at 598). ADT Rule 41 does not carry that implication: if, contrary to TCN's argument, the giving of a consent is not itself "an original decision", then the Rule says nothing as to who are or are not to be heard on appeals from other decisions made in proceedings for an original decision. In the absence of a relevant provision, the Tribunal must be guided by s 73(2) which requires that it proceed "subject to the rules of natural justice". The Tribunal's exercise of discretion under s 126 120 Having decided that the Tribunal had power to decide whether or not to make a consent in favour of TCN upon its application made in the course of the primary proceedings, I turn to consider whether the exercise of that discretionary power miscarried in point of law. 121 In my opinion, what was said by Gaudron and Gummow JJ in Oshlack v Richmond River Council ( 1998) 193 CLR 72 at 81 as to the exercise of an unconfined power to make costs orders given to the Land and Environment Court can appropriately be applied to the power given to the Tribunal under s 126: "The provisions of s 69 of the Court Act which confer upon the Court the discretion exercised by the primary judge attract the application of the general proposition that it is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making conditions or imposing limitations which are not found in the words used. The necessity for the exercise of the jurisdiction or power by a court favours a liberal construction. Considerations which might limit the construction of such a grant to some different body do not apply. The terms of s 69(2) contain no positive indication of the considerations upon which the Court is to determine by whom and to what extent costs are to be paid. The power conferred by the section is to be exercised judicially, that it to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as "the subject matter and the scope and purpose" of the legislation may enable an appellant court to pronounce the reasons given by the primary judge to be "definitely extraneous to any objects the legislature could have had in view". (citations omitted) 122 As to what is needed to show a miscarriage in the exercise of such a discretion, their Honours refer to the well-known passage in House v the King (1936) 55 CLR 499 at 505, and to other authorities including Norbis v Norbis (1986) 161 CLR 513 at 517-520, 535, 536-9. In my opinion, these authorities are relevant to the present appeal, even if the discretion in s 126 is regarded as an administrative power exercised by a non-judicial body and if an appeal to the Tribunal Appeal Panel on a question of law should be determined by reference to principles of judicial review. This is because "guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion" ( Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 42). 123 House v The King requires an appeal body to consider whether it "appears" that "some error has been made in exercising the discretion": "If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed …" (55 CLR at 504-5) 124 In my opinion, these errors can equally be regarded as errors of law, so long as the references to "wrong principle" and "mistakes the facts" are understood as requiring demonstration of a misconception of the legal parameters of the discretion, and not merely a difference of opinion as to how legally permissible considerations should guide a decision. 125 It is necessary, therefore, to analyse the reasoning given by the Tribunal in the decision under appeal. In doing so, I should make allowance for the urgency under which the reasons were delivered, and give the latitude required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 126 The appellant argued that the Tribunal's references to the derivation of s 126 from the Community Services (Complaints, Appeals and Monitoring) Act 1993, to the general objectives specified in s 3(f) and (g), and to the position "applied historically to the former Veterinary Surgeons Disciplinary Tribunal", each revealed errors of law. I do not accept these submissions. These references, in my opinion, show no more than the Tribunal identifying relevant background to the present legislation. I am not persuaded that its consideration of this background reveals error of law or, indeed, played a substantial part in the Tribunal's reasoning process in relation to the construction of s 126. 127 Instead, I would summarise its critical reasoning as follows: + Section 126 should be construed in the context of legislation which also contains s 75 (par 8). + Section 75 expresses the general proposition, well known in the justice system, that the proceedings of the courts and tribunals are open to the public (par 8). + The making of suppression orders under s 75(2) should take account of "the importance of openness of proceedings to the quality of justice and to the community's confidence in the justice system" (par 15). + That power should be exercised on "the analogy to committal" proceedings (par 18). + The Tribunal was entitled to sit as a public Tribunal and that included having publicity attached to the work of the Tribunal (par 18). + These considerations led to the refusal of a suppression order in the present case, "conscious, obviously, of the gravity of these proceedings and the consequences that publicity may have in its won right, whether fair or unfair, for the reputation of the practitioner" (par 16) and accepting "the possible consequences that might be involved" (par 19). + It followed from this approach to s 75 that the Tribunal "should not lightly refuse consent" under s 126 (par 22). + The prohibition and exception in s 126(1) should be read "in light of the higher value that the legal system has attached to openness in proceedings and the values that are expressed in s 75", so that "to some extent at least section 126 has to be qualified in light of section 75" (par 22). + In the present case consent was therefore to be given to TCN (par 23). 128 In my opinion, this reasoning shows that the Tribunal construed s 75(2) as intending suppression orders to be refused upon the same or "analogous" principles to those applied in courts and in committal proceedings in particular. It then construed s 126 as intending, or at least as allowing, the giving of consent by the application of the same principles. This required s 126 to be "qualified in light of s 75". Having adopted this construction of s 126, the Tribunal thought that its decision on TCN's application should follow the outcome of the s 75 application without any need further to consider the appellant's circumstances. 129 I find some confirmation that the Tribunal thought that its s 126 decision followed as a consequence or corollary of its s 75 decision from the absence in its reasons for giving consent of any examination of the nature of the likely broadcasts or of their consequences to the appellant. That both decisions were reached by applying the courts' approach to suppression orders appears also to explain the brevity of the Tribunal's reference to the appellant's circumstances in paragraphs 16 and 19 of its reasons, since, as will appear, that approach left no prospect of the appellant succeeding in obtaining suppression - whatever might be the likely publicity and its harmful effects. The principles applied by NSW courts on non-publication orders 130 To understand the Tribunal's reasoning and to decide whether it reveals misconception of the discretion conferred by s 126(1), it is necessary to discover what are the relevant "principles of openness of proceedings" applied in the common law and in committals in relation to non-publication orders. 131 There are numerous reported and unreported cases which have considered these principles. For present purposes, I think that it is sufficient to refer to a recent and extensive discussion of NSW and other authorities by Hedigan J in Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria (BC9802329, Supreme Court of Victoria, 10 June 1998). His introductory remarks indicate the normal approach of the courts: There are many cases which have referred to the desirability, even necessity, of courts and tribunals conducting their judicial or quasi-judicial business open to the public and without orders suppressing any of the evidence or quasi-judicial business open to the public and without orders suppressing any of the evidence nor the names of the parties. It seems to be beyond doubt that the superior courts, however rarely they might exercise the power, have at common law (and in many jurisdictions, including the jurisdiction of this court, a statutory) power to make orders closing courts or to make orders, depending on the circumstances, suppressing the publication of parts of the evidence. Such power can only be exercised if it is necessary to do so in the interests of a just hearing of the case. The reason for the favouring of open hearings is intimately connected with the conduct of public affairs in a democracy, namely, that it is, as a general principle, in the public interest that disputes between State and citizen, and citizen and citizen, not be tried behind closed doors but so that the work of those appointed to decide, the evidence given by witnesses, and the decisions can be scrutinized by all who care to visit. Since not everyone can visit, citizens in a democracy depend to a substantial extent upon accurate and published reporting of what takes place. Restrictions on access to the courts or on the dissemination of events which take place in courts ought, it seems to be generally thought, only be imposed if it is necessary to do so for the proper administration of justice. One might refer to a statement by counsel in his submissions to the court in R v Clement in 1821 (citations omitted) with respect to the hearing of cases by courts: "It is for the public benefit that a faithful account should be published of a transaction of which they might otherwise receive only a garbled account from the mouth of individuals". In an open and truly democratic society, the right of various forms of the media (that is, the media as a means of communication of the issues, parties and the hearing) to be present and to publish is generally regarded as being in the public interest, so long as the reports are accurate and do not misrepresent, by omission or unbalanced selection, the evidence and its effect. The right to report is seen as an adjunct of the right to attend. The media, however, has no direct interest in the administration of justice; indeed it usually adopts the position that it is merely reporting what is news, namely what occurred, and accepts no responsibility for the production of consequences that flow from that publication. It is the Court or Tribunal, the body charged with the duty of administration of justice to all involved, that has the responsibility, not the media. It must decide the issues of closure or suppression, whether the power to do either exists and whether the power ought be exercised." (BC9802329 at 17) 132 This approach led Hedigan J to decline to find an implied power in a Medical Board panel to make suppression orders "when the Parliament failed to make provision for it". Where publication suppression powers have been conferred on tribunals by statute, judges have implied the same limits within which Supreme Courts confine their inherent powers: that the powers can only be exercised where this is necessary for the due administration of justice, and that there are closely confined classes of cases in which the making of suppression orders has been established. Thus, in Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 20, Hunt J held that the coroner should prohibit reporting of public proceedings only where "the publicity which would be afforded by reports of those proceedings by the news media would frustrate or render impracticable the administration of justice". In Walton v Momot (BC9703067, 17 April 1997) Handley JA referred to provisions of the legislation governing the Chiropractors and Osteopaths Tribunal which were similar to s 75 of the ADT Act, and said: The general principle provided for in s 46(3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result… This of course reflects the general principle that the administration of justice under our system is carried on in public." 133 Not all judges have welcomed the common law approach. In Nationwide News Pty Ltd v District Court of NSW (1996) 40 NSWLR 486 Mahoney P acknowledged at 493 that: "special cases apart, the general law does not authorise a judge, even with the consent of the representative of the public, the Crown, to make an order forbidding publication of evidence given in, or information as to, a proceeding of this kind because publication of it will cause damage to the persons involved in the proceeding. 134 However, he expressed dissatisfaction with the rationale for this: But in my respectful opinion, this states only one side of the problem. It does not examine the cost paid for what can be achieved by publicity, nor does it consider the interests of those by whom the cost is paid. Publicity is not an end in itself: it is a means to other things. Publicity can be good or bad: it can do good or harm. If the law is to adopt a principle based upon the effect of publicity, it should I believe do so only if it is satisfied that the good that it does sufficiently outweighs the harm." The effect of s 126 of the ADT Act 135 The criminal offence provided by s 126 clearly has a rationale which contrasts with the rationale for the common law principles. It accepts that publicity of the identities of parties, witnesses and others involved in Tribunal proceedings may cause harm to those persons, and is designed to protect them from that harm. Its protective effect arises regardless of whether this assists or detracts from the interests of the administration of justice by the Tribunal, either in the particular case or generally. However, it confers on the Tribunal a power to lift the protection. 136 Section 75 has a different starting point. It reflects the usual position which prevails in courts and tribunals whose hearings are open to the public. Although we do not need to decide in this case, the authorities cited above would seem to require the Tribunal's suppression powers in s 75(2) to be exercised according to the "ordinary principles". If the direction in s 75(1) that "the hearing is to be open to the public" stood in the ADT Act without the presence of s 126(1), there could be little doubt that it would operate so as to permit media reporting of the hearing in the normal manner. 137 However, the two sections appear in the same legislation, and both apply indiscriminately to all proceedings heard in the Tribunal. They must be construed in the light of each other, and so as to achieve, as far as possible, their apparent legislative intent (c.f. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315, 321). 138 In my opinion, there is no necessary inconsistency or conflict between the two provisions. In their terms, s 75(1) requires hearings to be open to all members of public, but s 126(1) prevents broadcast publication of anything happening at the hearing which would identify a person involved. 139 Both sections confer discretions on the Tribunal to make directions or consents which give dispensations from their respective provisions. There must be an inference that these discretions may not be exercised inconsistently in any proceeding, but this does not require the reading down of either of the discretions in favour of the dominant value reflected in the other section. Each discretion must be exercised principally by reference to the values or interests reflected in the section in which it appears. 140 There is, as counsel for TCN put it, a "tension" between the two sections, in the sense that the offence created by s 126 departs from the value of "open justice" which would see reporting of open hearings as a usual consequence of allowing the presence of the public at a hearing. 141 However, this point merely emphasises that by enacting s 126 the legislature has significantly modified for this Tribunal's proceedings the effect of the principles in relation to the making of non-publication orders which are applied in the courts. 142 The legislature, by inserting s 126 in the ADT Act and by making it applicable to all proceedings in the Tribunal, has taken up what was said by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 476: The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule." (my emphasis). 143 By including s 126 in the ADT Act, Parliament has done more than allow the Tribunal to apply the principle which Mahoney JA preferred, but found blocked by precedent. Instead, it has created a criminal offence reflecting values protective of privacy interests. It has drawn a distinctly different balance in relation to "open justice" as it is to be administered in this Tribunal. The wisdom of this is not for me to debate in these reasons. 144 The legal consequences of this for the proper exercise of the discretion in s 126 (1) to consent to a publication include, in my opinion, that: + the privacy interests protected by the criminal offence provide the starting point for assessing the competing considerations when deciding whether to give a consent, + in any proceeding in which consent is sought it is essential to examine the likely publication and the harm which may result to the particular individuals concerned, so as to decide whether a dispensation from the statutory protection would be justified, and + a decision on giving consent cannot be arrived at by application of the common law principles of open justice which give no protection to privacy, although a public interest in publication may, in appropriate circumstances, be given weight as a consideration competing with privacy values. 145 In my opinion the Tribunal's failure on any one of these points would reveal a misconception of the power conferred by s 126(1), and would provide an error of law for which its decision should be set aside on appeal. The Tribunal's error. 146 I did not understand counsel for TCN to dispute the above propositions. His principal argument was that no error could be found in the reasons given by the Veterans Disciplinary Panel, making due allowance for their ex tempore nature and the need to overlook mere "looseness in the language" (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). 147 This was a powerful argument. However, not without hesitation, I have concluded that the reasons reveal all of the above errors. This follows from the analysis of the Tribunal's reasoning which I performed above. I think that the Tribunal was led into error by thinking that a decision on a s 126 consent followed as a consequence or corollary of its decision refusing suppression orders under s 75. It thought there was a conflict between the two provisions which required s 126 to be "qualified". It gave an overriding dominance to section 75. This led it to downgrade the significantly different objects of s 126. It led it to omit to identify and examine the potential harm of publicity to the appellant in the context of its decision on 126. Its two references to harms to the appellant in paragraphs 16 and 19 in the course of arriving at a decision on the s 75 application are short and oblique, but understandably so in the light of the considerations relevant to that application. However, s 126 required a different and more thorough consideration of those harms - even in ex tempore reasons. This is entirely absent in these reasons. 148 I therefore consider that the decision under appeal must be set aside. In an appeal limited to questions of law, this would have the consequence that TCN's application for a consent would need to be remitted for further consideration by the Tribunal as constituted at first instance, since it could not be said that any particular outcome was required as a matter of law (c.f. Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 579, 599; Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560)). Extending the appeal to the merits. 149 However, the appellant invoked s 113(2)(b), which provides that an appeal "with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision". If such leave is given, s 115 governs the Panel's remedies. It provides: 115 Appeals on the merits (1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned. (3) In determining any such appeal, the Appeal Panel may decide: (a) to affirm the decision, or (b) to vary the decision, or (c) to set aside the decision and make a decision in substitution for the decision it set aside. 150 There are important questions facing the Tribunal in its interpretation and application of s 113(2)(b). 151 First, the provision is ambiguous as to whether leave can only be given in cases where an appeal is also brought on a question of law and, if so, whether an error of law must first be established to the satisfaction of the Appeal Panel. In their submissions to us, all counsel adopted the position, put by counsel for the Committee, that "at least one substantive question of law must be raised bona fide by the appellant before any application for leave may be made by him". No counsel argued that an error of law must be made out, and I agree with this. The Tribunal in Mayhew v A [1999] NSWADTAP 1 took this view, or a more stringent one, in an appeal in which the appellant was not legally represented. For myself, I am at present not persuaded that the Tribunal could not grant leave even if no question of law were raised. I can well imagine a case, for example, where an appellant could point to some blatant and important error of fact which called for remedy by an Appeal Panel in the interests of justice. Moreover, there may be appeals which could be shortly and conveniently disposed of by turning directly to the merits of the decision under appeal, without having to address the frustrating technical distinction between error of fact and error of law (see Cowell Electric Supply Co Ltd v Collector of Customs (1995) 54 FCR 1 at 6, 10; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394). I am inclined to think that Parliament may have intended ss 113(2)(b) and 115 to encompass cases such as these. However, I need not decide this point, since in the present case I have indeed found the decision under appeal to be vitiated by error of law. 152 Secondly, what principles should be adopted to govern the Appeal Panel's discretion to grant leave? Again, I do not think this is the case in which to attempt a formulation, particularly since it was little addressed in argument before us. Instead, I propose to decide this question pragmatically in the particular circumstances of this appeal. This accords with the requirement of s 73(3), equally applicable to an Appeal Panel, that the Tribunal "act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." 153 I can see no direct parallel in the principles normally applied by appellate courts, for example, when deciding to entertain an appeal from an interlocutory decision (c.f. Niemann v Electronic Industries Ltd [1978] VR 431; Hollier v Registrar of National Native Title Tribunal (1998) 82 FCR 186 at 187C, 188C), although common considerations may come into play (c.f. Coulter v The Queen (1988) 164 CLR 350 at 359). The appeal provisions in the ADT Act appear to be unique, and in my opinion they should not be tied down by drawing unsuitable analogies (but c.f. ss 208L, 208M of the Legal Profession Act 1987 (NSW)). 154 In the present appeal, I was initially inclined to refuse leave, and to remit the application for consent for further decision by the Tribunal which is currently constituted and conducting the principal proceedings. Among the factors pointing to this course were: + the desirabilty of requiring special reasons for extending to the merits an appeal from an interlocutory decision, arising from the considerations I have referred to above; + that the Tribunal conducting the principal proceedings is far better informed than us, and better equipped to inform itself, as to the nature of the allegations against the appellant and the evidence which is likely to be published; + that those members have been specially constituted as a Veterinary Disciplinary Panel, and would be better able to assess the harms to the appellant's practice and the public interest considerations in relation to publicity for veterinary disciplinary proceedings; and + that any decision by us on the giving of a consent would not be final, and it would be open to the present parties and other persons to make further applications for consent which would fall to be decided by this Veterinary Disciplinary Panel. 155 However, I am persuaded to grant leave in all the circumstances under which this appeal has been presented to us. No party requested the remitter of the case or made submissions supporting this course, and there seemed to be a consensus by all counsel that, if error of law were made out, considerations of expediency pointed towards our deciding for ourselves whether a consent should now be given for the benefit of TCN and other media organisations. Since the parties were content to allow the Appeal Panel to decide the matter on evidence of small compass, and since we have already received this material and heard argument on the merits of the decision, I have decided that this is a case where pragmatism should prevail. 156 I would therefore grant the appellant leave under s 113(2)(b) of the ADT Act. The merits of TCN's application for consent. 157 Having granted leave, s 115 requires us to exercise afresh the discretion conferred by s 126(1) having regard to the material placed before us by the parties, including any fresh material. The parties were put on notice on the first occasion that the matter came before us, that they should present evidence and submissions on the assumption that we would grant leave. They subsequently tendered the following material: + An affidavit by the appellant sworn on 28 March 1999, in which he deposed that he earned his living from his work as a vet, and thereby supported his wife, children and former wife. He feared that adverse publicity at the present time would have a large effect on his earning capacity because new and existing customers would suffer a loss of confidence. He also feared the consequence of publicity upon his twin sons aged 12 and his daughter aged 15, who was particularly vulnerable. The respondents did not seek to cross-examine him on these assertions. + The four "notices of inquiry" containing and particularising the complaints. + The Tribunal's notice listing the matter on 19 March 1999, and the Sydney Morning Herald Law Notices in relation to that listing. + The full transcript of the hearing in the principal proceedings, with the invitation only to read the pages relating to TCN's application under s 126, i.e. pages 2, 268, 315, 321-329. + A letter from the solicitor for the Veterinary Surgeons Investigating Committee explaining the limited basis on which the Tribunal had been informed as to the practice of the previous Tribunal in relation to the making of suppression orders. 158 I have above explained how I understand the discretion in s 126(1) should be approached. In particular, I pointed out that it requires making findings as to the likely publicity which might result and the harm which may ensue, and a balancing of this harm against any countervailing considerations. Although no presumption for the giving or refusing of consent should be adopted, if, at the end of the assessment, the Tribunal is left in doubt then it should not consent to broadcasting or publication. 159 In the present case, the scanty material placed before us leaves me with such a doubt. TCN led no evidence as to what reporting it wished to engage in, and I was left with the impression that it had no particular reporting or programming either planned or in mind. We were given no indications of the type of evidence which has or might be lead in the proceedings and which may attract the media. I found it impossible to guess merely from a reading of the complaints against the appellant whether reporting of the proceedings would indeed benefit a public interest other than transient entertainment. Instead of leading evidence which would illuminate a public benefit from allowing an invasion of the appellant's privacy, we were urged to act on the one-sided rationale of "open justice" which underlies the common law principles. However, it was conceded that the cases cited in support of giving dominance to this consideration all concerned courts and tribunals which have no equivalent to s 126. 160 Against this, the appellant has led unchallenged evidence that any broadcast identification of his name with adverse allegations as to his conduct as a veterinarian would injure his livelihood and cause personal distress to himself and family members. Although I cannot quantify this harm, I am ready to accept that it could be substantial. Moreover, I accept the submission made on his behalf that the broadcasting of newsworthy allegations about him as the Committee's evidence unfolds and before he has had the opportunity to test it or to give his account of events could operate prejudicially. I accept that the reporting of the proceedings as they unfold could lead to his being unfairly convicted in the forum of public opinion. 161 On the material before me, I am not persuaded that the giving of consent is justified, and I would therefore refuse to give consent to TCN or any other media organisation at this stage of the proceedings. Whether a consent should be given at some future stage, or on more extensive material, is a matter which I do not venture to predict. 162 This outcome would seem to be not inconsistent with the submission put on behalf of the Veterinary Surgeons Investigating Committee, which was: 3.3 The VSIC supports publication of disciplinary proceedings before the Tribunal without disclosing the names of parties or witnesses in the absence of an examination of the particular circumstances, as envisaged by the Act. The VSIC is concerned, that in this case the publication by the Tribunal of the name of the Appellant in newspapers and outside the Tribunal room may have hindered the capacity of media to publish any details of the proceedings without naming the Appellant or giving information likely to lead to the identification of the Appellant. However the VSIC deliberately makes no submission as to whether in all the particular circumstances of this case the granting of consent it justified…. 9....It is not the current intention of the VSIC to seek consent to the publication of the name of the Appellant until the conclusion of the proceedings and consideration of the findings made. 163 Counsel for TCN placed the public listing of the matter with the names of the parties at the forefront of his submissions to the Tribunal below, and to a lesser extent to us, arguing that: The serious risk faced by media interests is that even an anonymised report may offend the general prohibition in s 126 if there is a likelihood that a viewer may juxtapose that anonymised report with what the viewer has or can read in the publicly available daily court list. Such considerations make the grant of consent entirely appropriate in this particular case where the practitioner's identity has already been disclosed to the public at large. 164 Notwithstanding these submissions, I have given little significance to the fact that the public listing of the daily proceedings has included the appellant's name. I consider that such listings could make no real difference to whether section 126 would allow the publication in an anonymised form of contemporaneous reports of evidence being given in current Tribunal hearings. If a reader or hearer of such a report could identify the subject of the proceedings by reading the law list, then such a person is equally likely to be able in the absence of the law list to identify the subject of the report by attending the Tribunal on the next hearing day or by inquiry of a person who previously attended a hearing. The risk of the publisher or broadcaster being in breach of s 126 would be little different. In saying this, I give no opinion whether the media organisation would be in breach of s 126 in either situation. 165 For the above reasons, I agree in the orders proposed by the other members of the Appeal Panel. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.