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Tsigounis v Medical Board of Queensland

 

[2006] QCA 295

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Tsigounis v Medical Board of Qld [2006] QCA 295

PARTIES:

HELEN TSIGOUNIS
(appellant/applicant/cross-respondent)
v
MEDICAL BOARD OF QUEENSLAND
(respondent/respondent/cross-applicant)

FILE NO/S:

Appeal No 4611 of 2005

DC No 1136 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

15 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2006; 2 August 2006

JUDGES:

Williams and Keane JJA and Dutney J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

  1. Application for leave to appeal refused
  1. Application for leave to cross-appeal refused
  1. Ms Tsigounis to pay the costs of the Medical Board of Queensland of her application, to be assessed on the standard basis

CATCHWORDS:

PROFESSIONS AND TRADES - MEDICAL PRACTITIONERS - Medical Board cancelled applicant's conditional registration as a medical practitioner - applicant appealed Medical Board's decision to District Court - District Court upheld appeal against cancellation and thus registration was possible albeit subject to conditions previously imposed by Medical Board - applicant failed to apply for a renewal of her registration and applicant's registration lapsed - whether the decision of the District Court occasioned a substantial injustice to the applicant and whether there is a reasonable argument in support of the applicant's claim to relief

APPEAL AND NEW TRIAL - APPEAL - WHEN APPEAL LIES - ERROR OF LAW - applicant self-represented during most of the hearing in the District Court - applicant argued District Court "effectively" refused applicant an adjournment and "forced" applicant to represent herself and thereby denied natural justice to the applicant - applicant claimed District Court judge engaged in "amateur psychiatry" - applicant argued District Court paid only "lip service" to standard of proof required by Briginshaw v Briginshaw - whether the decision of the District Court occasioned a substantial injustice to the applicant and whether there is a reasonable argument in support of the applicant's claim to relief

District Court of Queensland Act 1967 (Qld), s 118
Medical Practitioners Registration Act 2001 (Qld), s 71, s 72, s  88, s 93, s 94
Medical Practitioners Registration Regulation 2002 (Qld), s 4

Briginshaw v Briginshaw (1938) 60 CLR 336, considered
Fox v Percy [2002] HCA 22; (2003) 214 CLR 118, cited
Hewett v Medical Board of Western Australia [2004] WASCA 170; No SJA 1049 of 2004, 11 August 2004, distinguished
Pickering v McArthur [2005] QCA 294; Appeal No 4013 of 2005, 16 August 2005, cited
State of South Australia v O'Shea (1987) 163 CLR 378, cited 

COUNSEL:

A J H Morris QC, with L A Jurth, for the applicant
D H Tait SC, with A J Rafter SC, for the respondent

SOLICITORS:

Boe Lawyers for the applicant
Phillips Fox for the respondent

  1. WILLIAMS JA:  Keane JA in his reasons for judgment has comprehensively dealt with all of the submissions advanced to this Court in support of the application for leave to appeal and appeal.  I agree with all that he has said and in the circumstances there is nothing which can usefully be added.  I also agree that in the circumstances it would be futile to give the respondent leave to cross-appeal.
  1. I agree with the orders proposed.
  1. KEANE JA:  The applicant seeks leave to appeal against a decision of the District Court of Queensland.  On 23 March 2004, the Medical Board of Queensland ("the Board") decided that the applicant had not satisfactorily completed her internship and cancelled the applicant's conditional registration as a medical practitioner. 
  1. The applicant appealed to the District Court, which, on 11 May 2005, allowed the applicant's appeal and set aside the Board's decision to cancel her registration. The District Court confirmed that part of the Board's decision whereby the Board concluded that the applicant had not satisfactorily completed her internship, but directed the Board to extend the applicant's probationary conditions for a period of one year by requiring her to undertake all of the prescribed internship at a hospital other than Townsville Hospital. The applicant's application ultimately seeks orders confirming her registration, free of any conditions.
  1. The Board cross-applies for leave to appeal against the District Court's decision to set aside the cancellation decision.

 The legislation

  1. The decisions of the Board and the District Court were made under the Medical Practitioners Registration Act 2001 (Qld) ("the Act").  Some preliminary discussion of the relevant provisions of the Act is necessary to aid an understanding of the issues which arise on the application for leave to appeal. 
  1. Under the Act, the Board was obliged to determine the applicant's fitness to practise as a member of the medical profession.[1]  The right to practise in Queensland is dependent upon registration under the Act.[2]  Registration under the Act may be subject to probationary conditions which include the completion of the prescribed internship to the Board's satisfaction within a given time.[3]  The Board may cancel an individual's registration on the ground that the registrant has not completed the prescribed internship, to the Board's satisfaction, within the period determined under the Act.[4]
  1. Particular reference may be made here to s 94 of the Act. Section 94(1) of the Act is in the following terms:

"After reviewing the internship report or supervised practice report and any information or document about the registrant obtained under section 93, the board must decide -

(a) if the board is satisfied the registrant has satisfactorily completed the internship or program - to remove the probationary conditions; or

(b) otherwise -

(i) to cancel the registrant’s registration under division 6; or

(ii) to extend the probationary conditions for a period of not more than 1 year, by requiring the registrant to undertake a part of the internship or program, if the board considers the registrant will satisfactorily complete the internship or program during the period."

  1. It will be seen that if it is not established to the satisfaction of the Board (or, on appeal, the District Court) that the registrant has satisfactorily completed the internship, then the Board must either cancel the registration (s 94(1)(b)(i)) or extend the probationary period (s 94(1)(b)(ii)). The latter course is open only if the Board (or, on appeal, the District Court) considers that the registrant will (on the balance of probabilities) satisfactorily complete the internship during that period.  If the Board (or, on appeal, the District Court) does not consider that the registrant will satisfactorily complete the course within that period, then no extension may be granted and cancellation is the only option.   
  1. An appeal lies from the Board's decisions to the District Court.[5]  That appeal is "by way of rehearing, unaffected by the original decision".[6]  On appeal, the District Court has the same powers as the Board.[7]
  1. The period of registration applicable to general registrants is now a financial year.[8]  General registrants may apply for the renewal of registration within the period of 60 days before the expiry of registration.[9]  In deciding whether or not to grant an application for renewal of registration, the Board must have regard only to the extent to which the registrant has satisfied any "recency of practice requirements"[10] as prescribed by regulation.[11]  If there are no such requirements relevant to the registrant, the Board must decide to renew the general registration.[12] 
  1. An application may be made for restoration of registration within three months after the expiry of registration.[13]  If the Board decides to restore a general registration, that registration is "subject to the conditions, including, for example, probationary conditions, attaching to the registration immediately before its expiry".[14]  The Board may decide to restore registration on "recency of practice conditions".[15] 
  1. From this brief summary of the relevant provisions of the Act, it will be apparent that registration (and the rights and privileges which attach to registration) is not a matter of permanent status but is more akin to a licence that is granted for a limited period, subject to regular review to ensure that a medical practitioner's qualifications and experience are current. A strong public interest in the promotion of the highest standards of medical care informs the scheme of the Act.[16]  Thus, where registration has been allowed to lapse, there is a limited period of time during which the practitioner may be restored to registration.  On such restoration of registration, any conditions attaching to registration before its expiration automatically continue.  But after restoration becomes impossible because of the effluxion of time, an individual who wishes to be registered must apply to the Board for a fresh registration.

Leave to appeal to this Court

  1. An appeal to this Court from the decision of the District Court is available only by virtue of s 118(3) of the District Court of Queensland Act 1967 (Qld).  Such an appeal to this Court is an appeal from the District Court in its appellate jurisdiction.  As a result, that appeal is an appeal in the strict sense, that is to say, the decision of the District Court is not subject to an appeal by way of rehearing.[17]  Accordingly, it is "not this Court's task to decide where the truth lay as between the competing versions … given by the parties".[18]  It is not open to this Court to substitute its view of the facts of the case for that of the District Court judge.  The circumstance that the appeal to this Court is confined to questions of law serves to constrain the grant of leave to appeal in a way which is particularly significant for the present case. 
  1. Leave to appeal to this Court from the District Court will usually be granted under s 118(3) of the District Court of Queensland Act 1967 (Qld) only where the decision below has occasioned a substantial injustice to the applicant for leave, and where there is a reasonable argument in support of the applicant's claim to relief.[19]  Because of the limited function of this Court on appeal in the strict sense applicable here, the latter requirement means that the applicant must be able to identify an arguable error of law in the decision below which, if corrected, would result in the correction of the substantial injustice.
  1. The applicant seeks orders from this Court which would confirm her registration free of internship and the other probationary conditions to which it had been subject. This Court cannot grant this relief. The applicant's registration expired on 1 October 2004. The lapse of more than three months since the expiration of the applicant's registration means that, even if this Court were minded to order that her registration be restored, it could not do so. The question now is whether the applicant should be registered afresh under the Act. That is necessarily a question for the Board. This Court cannot usurp the functions assigned by the Act to the Board to determine whether, in August 2006, the applicant should be granted registration anew. As at August 2006, even the Board has no power to restore the applicant's registration. A fortiori, neither the District Court, nor this Court, has such power. 
  1. The scheme of the Act, which reflects a policy of ensuring that a registrant's qualifications and experience must be current, leaves no room for the applicant to achieve registration other than by a fresh application to the Board which will be able to impose appropriate conditions on the fresh registration.
  1. Before discussing these matters further, I shall set out the background to the issues between the parties and a summary of the proceedings in the District Court. I will then summarise the reasons for the decision of the District Court. I will then seek to explain why, in my view, there is no sufficient prospect of granting the relief sought by the applicant, or, indeed, any substantial relief, to warrant the grant of leave to appeal.

Background

  1. The applicant commenced her medical studies at the beginning of 1986 at Monash University in Victoria. There were setbacks and interruptions to her studies. The applicant did not obtain the degrees of Bachelor of Medicine and Bachelor of Surgery until December 1997.
  1. On 5 December 1997, the Medical Practitioners Board of Victoria granted the applicant provisional registration for the purpose of enabling her to undertake supervised training as an intern. She commenced an internship at Frankston Hospital, Victoria in January 1998.
  1. On 16 October 1998, she was suspended from her employment at Frankston Hospital. On 27 January 1999, Associate Professor Fiona Judd reported to the Medical Board of Victoria that the applicant exhibited "significant personality problems" which raised concerns as to her "ability to take responsibility and function adequately as a medical practitioner".[20] 
  1. On 18 February 1999, the Medical Board of Victoria imposed conditions on the applicant's provisional registration, including that she have a workplace mentor and attend a psychiatrist. Workplace performance reports were to be provided by the applicant's clinical supervisor on a three monthly basis.[21]
  1. The applicant did not return to her internship in Victoria because, she says, she was unable to find a hospital willing to employ her.[22]  The applicant's provisional registration in Victoria lapsed in January 2001.  In 2000 and 2001, the applicant worked as a medical practitioner in Greece, where she became registered to practise medicine "without a specialty".[23] 
  1. In 2002, the applicant returned to Australia. She sought, and obtained, employment as a Resident Medical Officer at Townsville Hospital. She began work at Townsville on 2 April 2002. Although she was not registered in Queensland as of that date, she had applied for registration on 15 March 2002. The applicant worked as a Resident Medical Officer for approximately six weeks before going on leave without pay while her registration application was being considered.[24]  The Board was in possession of the material from the Medical Board of Victoria.  In consequence, as part of the assessment of her application, the Board required the applicant to undergo a health assessment by a psychiatrist, Dr Kippax.  The applicant was assessed by Dr Kippax on 23 April 2002 as having a paranoid personality disorder. 
  1. After receiving that report, the Board, on 28 May 2002, resolved to grant the applicant general registration under the Act subject to the condition that she work under supervision approved by the Board. On 11 June 2002, under s 57(3) of the Act, the Board required that the applicant complete a period of six months' internship with a minimum period of 12 weeks in surgery.
  1. The applicant recommenced work at Townsville Hospital in June 2002; her internship formally commenced on 3 July 2002. On 2 January 2003, she gave notice to the Board that she had completed her internship.
  1. On 14 January 2003, the Board resolved that it was not satisfied that the applicant had completed that part of her internship which required a period of 12 weeks in surgery. The Board extended the probationary period for a further three months. These decisions of the Board were not challenged by the applicant. The Board informed the applicant of its decision in the following terms:[25]

"The Medical Board of Queensland at its meeting on 14 January 2003 decided to extend the probationary conditions of your registration for a further period of three months.  During the extended period of the probationary conditions of your registration you must complete a full term in a surgical discipline.

     The reasons for this decision are:

  • Following consideration of the internship report from The Townsville Hospital regarding the internship undertaken by you, the Board is not satisfied that the required period of 12 weeks in surgery, as stated in the information notice on 21 June 2002, has been completed.
  • The Board considers you will satisfactorily complete the internship during the extended period conditions."
  1. Again, it should be noted that there was no appeal against this decision of the Board.
  1. On 16 May 2003, the applicant gave notice to the Board that she had completed her internship on 17 April 2003 and applied for removal of the probationary internship conditions on her registration.[26]  The applicant's application was accompanied by intern assessment reports by various doctors with whom the applicant had worked.  These reports suggested that her performance was satisfactory. 
  1. At about this time, however, the Board became aware of, and caused to be investigated, complaints about the applicant's work performance at Townsville Hospital.[27]  In particular, Dr Balanathan, one of the Registrars with whom the applicant worked, gave her an unsatisfactory intern assessment report.[28] 
  1. On 10 June 2003, the Board resolved that it was not satisfied that the applicant had satisfactorily completed her internship. The Board was, further, not satisfied that she could complete the internship within the prescribed period. Accordingly, it resolved to call upon the applicant to show cause why her registration should not be cancelled. The applicant's then lawyers, Holding Redlich, responded on the applicant's behalf on 13 August 2003.
  1. The applicant's registration under the Act expired on 30 September 2003. Accordingly, it was unnecessary for the Board to pursue the issue of cancellation of the applicant's registration. On 16 December 2003, within the three month time limit, the applicant applied for the restoration of her registration.
  1. On 27 January 2004, the Board resolved to restore her general registration until 30 September 2004 subject to probationary conditions which included the internship conditions and, in addition, requirements that the applicant work under supervision and attend treatment by a psychiatrist. It must be emphasised that this decision of the Board was not, and has never been, the subject of an appeal.
  1. On 10 February 2004, the Board resolved that it was not satisfied that the applicant had satisfactorily completed her internship. It was also of the view that the applicant was not capable of completing an internship satisfactorily. Accordingly, the Board again called upon her to show cause why her registration should not be cancelled. The applicant's legal representatives, Yarra Legal, responded to this notice by letter dated 12 March 2004, and attempted to show cause why her registration should not be cancelled.
  1. On 23 March 2004, the Board resolved, pursuant to s 88(3) of the Act, to cancel the applicant's registration outright. From this decision, the applicant appealed to the District Court. The minutes of the Board's decision are as follows:[29]

"The Board considered the following information:-

  1. submission from Yarra Legal, lawyers on behalf of Dr Tsigounis, received by e-mail on 12 March 2004;
  2. show cause notice dated 16 February 2004;
  3. memorandum dated 9 February 2004 from the Assistant Registrar;
  4. submission dated 13 August 2003 and 10 November 2003 from Holding Redlich, lawyers on behalf of Dr Tsigounis in response to the Board's show cause notice dated 11 June 2003;
  5. show cause notice dated 11 June 2003 and accompanying documents;
  6. information notices dated 21 June 2002 and 28 January 2003 and the Board's letter of 29 January 2003 regarding a typographical error in the 28 January 2003 Information Notice;
  7. 38 statements from employees and former employees of The Townsville Hospital, copies of which had been supplied to Dr Tsigounis.

     In the Board's view, the submissions on behalf of Dr Tsigounis failed to provide material sufficient to refute the allegations made in the witness statements referred to in (g) above.  In the opinion of the Board, Dr Tsigounis' responses to adverse material often did not go beyond a claim that she did not recollect the events described, or that the evidence was too vague or that she was not informed of adverse events at the time.

     The Board noted that certain information in the statements of employees or ex-employees of the Townsville Hospital was corroborated, and in relation to significant events the Board preferred the evidence of those witnesses to the assertions by or on behalf of Dr Tsigounis where the former conflicted with the later.

     In the Board's view, Dr Tsigounis did not provide it with any, or any sufficient, evidence to show that she can safely and competently practise unsupervised.

     Instances of Dr Tsigounis' practice at the Townsville Hospital which the Board deems unsatisfactory include but are not limited to:-

  1. An incident described by Dr Balanathan in which Dr Tsigounis caused potassium to be added to an intravenous drip at a time when the patient's blood level was already high.  In relation to this incident, the Board prefers the evidence of Dr Balanathan, supported as it is by the statement of Ms Rutherford;
  2. Two incidents concerning the cannulation of child patients in contravention of relevant Townsville Hospital policy.  While Dr Tsigounis' claims that she abided by the Townsville Hospital policy and the instructions of her superiors after one such incident there is evidence - which the Board accepts - that Dr Tsignounis disregarded or departed from Townsville Hospital policy in a second such incident.  The evidence of the second such incident is contained in the statements of Ms Buldo, Ms Maloney and Dr Elcock;
  3. Dr Tsigounis' failure to follow the policy of the Townsville Hospital's Emergency Department relating to the review of patients by senior staff, as evidenced by the statements of Drs Gelhaar and Jessica Lucas - which the Board accepts - in relation to a patient diagnosed with possible meningitis;
  4. An incident related by Dr Peter Lucas, neurosurgical registrar, whose statement the Board accepts.  According to Dr Lucas, Dr Tsigounis, while acting as night call resident, made what he considers to be two serious errors with respect to a female patient who had undergone a lumber [sic] laminectomy on the previous day.  It was essential, in Dr Lucas' view, that the said patient should have received appropriate fluids (either orally or intravenously).  However, during Dr Tsigounis' period of duty, and on her instructions, a diuretic drug was administered to this patient, creating a serious risk of dehydration and renal failure.

     On the whole of the evidence before the Board, the Board is of the opinion that the action proposed in the show cause notice issued on 16 February 2004 should be taken, on the basis that Dr Tsigounis has not completed the requisite period of surgery at the Townsville Hospital to the satisfaction of the Board.

     The Board finds that the professional performance of Dr Tsigounis at the Townsville Hospital raises serious concerns about her ability to practise medicine without undue danger to members of the public who may come under her care.

     Further, the Board does not consider that Dr Tsigounis can achieve the necessary level of competence to practise unsupervised within a reasonable period of time, without undue risk to members of the public and without unreasonable burdens being placed upon those who might be given the task of supervising her.

RESOLVED that:-

  1. pursuant to Section 88 of the Medical Practitioners Registration Act 2001, the Board:-
  1. believes the ground exists to cancel Dr Tsigounis' registration; and
  2. believes that cancellation of her registration is warranted;
  1. pursuant to Section 88(3) of the Act, Dr Tsigounis' registration is hereby cancelled;
  2. the reasons for the decision are:-
  1. the Board does not consider that Dr Tsigounis has satisfactorily completed internship requirements in accordance with her conditional registration in that she has not reached the necessary level of competence to practise unsupervised.
  2. the Board does not consider that Dr Tsigounis can achieve the necessary level of competence to practise unsupervised;
  3. the Board does not consider that Dr Tsigounis has the ability to practise medicine without undue danger to members of the public who may come under her care;
  1. an information notice be given to Dr Tsigounis;
  2. pursuant to Section 257(4) of the Act, foreign regulatory authorities, including those of the United Kingdom and Greece, be advised of this decision, after expiry of the period in which Dr Tsigounis may appeal;
  3. if Dr Tsigounis lodges an appeal against the decision, foreign regulatory authorities shall only be advised should the appeal be dismissed."
  1. The applicant's appeal to the District Court came on for hearing on 23 August 2004. Prior to the commencement of the hearing, the applicant had been represented by Senior Counsel and Junior Counsel instructed by solicitors. On the first day of the hearing, however, counsel did not appear. Mr Franzese, a legal practitioner admitted in Victoria but not entitled to practise in Queensland, sought leave to appear for the applicant, pursuant to s 52 of the District Court of Queensland Act 1967 (Qld).  That application was refused.  It appears, however, that Mr Franzese assisted the applicant to present her case during the first three days of the hearing.

The hearing in the District Court

  1. The applicant did not seek an adjournment to obtain legal representation, save for a request at about 4.00 pm on the first afternoon of the hearing to adjourn until the following morning. That request was refused. The hearing adjourned at 4.32 pm. In the meantime, the applicant cross-examined one witness, Ms Struthers, a nurse at the Townsville Hospital, whose evidence did not go to any of the key incidents. The taking of evidence commenced after lunch on the first day. The applicant was evidently in some difficulty in proceeding to represent herself on the first day of the hearing; and, in the afternoon, the applicant told the court that Mr Franzese had left the court to seek to arrange representation for the applicant. It appears that, before the commencement of the second day of hearing, there were discussions involving Mr Walters of Counsel with a view to his taking up the brief for the applicant. The hearing was stood down for an hour and 10 minutes to enable these discussions to proceed. In the event, these discussions were fruitless. The applicant did not seek any further adjournment. After three days in all, the hearing of the appeal was adjourned to a later date.
  1. The hearing of the appeal recommenced on 31 January 2005. On this occasion, the applicant was initially represented by counsel and solicitors. That afternoon, the applicant decided to dispense with their services. The applicant confirmed to the court that she was "happy" to represent herself and was ready to proceed.
  1. The hearing of the appeal occupied a total of 14 days. Many witnesses gave evidence and were cross-examined. The applicant gave evidence and called witnesses.
  1. On 11 May 2005, the District Court allowed the applicant's appeal against the cancellation of her registration, but confirmed the Board's decision that the applicant had not satisfactorily completed her internship. The District Court directed the Board to extend the probationary conditions imposed on her registration for a period of one year by requiring her to undertake the prescribed internship at a hospital other than the Townsville Hospital. The District Court also ordered the Board to pay 15 per cent of the applicant's costs of the appeal.

The decision of the District Court

  1. Before the District Court, the Board's case for the cancellation of the applicant's registration was based on seven incidents, described as "the key incidents", which, it was said, demonstrated that the applicant's registration should be cancelled. As has been seen, the District Court held that the applicant's registration should not have been cancelled. Acting under s 94(1)(b)(ii), the District Court concluded that the applicant will, subject to a properly conditioned and structured internship of 12 months, satisfactorily complete that internship.[30]
  1. The learned District Court judge approached the appeal before him on the footing that the onus of proof of the incidents on which the Board relied was on the Board,[31] and that the standard of proof of these incidents was a very high standard of probability in accordance with the principles stated in the decision of the High Court in Briginshaw v Briginshaw.[32]  His Honour took that view principally because of the serious consequences for the applicant of an adverse determination of the appeal.[33]
  1. In concluding that the applicant had not satisfactorily completed her internship, the learned District Court judge found that the applicant had not completed the required period of 12 weeks in surgery. His Honour found that the "evidence establishes 11 weeks only".[34]  This conclusion may have been generous to the applicant bearing in mind admissions made by her former lawyers that she had completed only 10 weeks in surgery;[35] but neither side challenges this finding, and, bearing in mind the limits on the function of this Court on appeal, any such challenge would have been futile.
  1. His Honour said that:[36]

"[i]f all that was preventing the [applicant] gaining unconditional registration was one uncompleted week of surgery I would be inclined to the view that the many weeks she worked in emergency medicine would qualify.  Dr Hodges said … that in the past and during the [applicant's] employment at the hospital the Board was on occasions prepared to accept emergency medicine as surgery."

  1. The learned District Court judge went on to conclude that the applicant's performance in her surgical rotation was not satisfactory, and that the applicant's performance in her internship generally was not satisfactory.[37] 
  1. The learned District Court judge concluded that "[t]he evidence more than satisfies me that the [applicant] has not satisfactorily completed her internship and the Board was correct to so conclude".[38]  This conclusion was based on the applicant's failure to complete 12 weeks' surgery and on her failure satisfactorily to complete "her rotations in surgery, paediatrics, and emergency medicine either individually or combined.  Her work in cardiology was also unsatisfactory to the same extent".[39]
  1. In deciding that the Board had erred in cancelling the applicant's registration, the learned District Court judge said:[40]

"In deciding to cancel the [applicant's] registration I do not think the Board gave any or any sufficient consideration to the following matters

  • Her known psychiatric or personality problems and the extent to which they may have contributed to the way she acted and responded to concerns expressed to her
  • The extent to which her work was or was not supervised as required by her conditional registration
  • Professor Keary's reservations about the continuity of her surgical rotation (paras [18] and [19])
  • The fractured nature of her surgery rotation
  • Interns are still learning and do make mistakes
  • Professor Keary's view that she required further training (para [18])
  • Dr Frischman's evidence that she should spend 3 months in one area (para [99])
  • Dr Ashley's opinion that she needed ongoing mentoring (para [125])

     In addition to these the following factors of relevance are now apparent

  • Her work in different departments of the hospital was somewhat disjointed and lacked consistency and routine.  She was to an extent shunted around in an almost relieving capacity and her internship lacked any ordered structure.  Professor Judson (para [274]) referred to the possibly less than ideal training provided to the [applicant] at the hospital and the failure to properly document her training
  • The evidence of Dr Small that perhaps management may have been sub-standard in some respects (para [137])
  • Not all of the allegations relied upon by the Board have been established
  • The opinions of Drs Peter Lucas and Andrew Coley that further training is required (paras [61], [130] and [131])
  • Professor Judson's evidence to the effect she is not incapable of achieving unconditional registration after a further period of internship coupled with appropriate mentoring and supervision and an appropriately structured training program and that she is not "incapable of achieving the level of competence necessary for full registration"
  • The submission of the Board at para [270].

     In my view the Board was to an extent overwhelmed by the totality of the allegations against the [applicant] such that it failed to give sufficient consideration to whether the [applicant] may have been able to complete a properly structured and appropriately conditioned further period of 12 months internship.

     The Board reached its decision to cancel the [applicant's] registration in the absence of any evidence to the effect that the [applicant] would not have been able to satisfactorily complete a further period of internship structured in such a way that recognised her problem areas and the particular respects in which she required further training.  I appreciate that the Board is to an extent entitled to rely on its own knowledge of matters related to training and supervision but there was no evidence before it directly bearing on whether the [applicant] would or would not be able to "achieve the necessary level of competence to practise unsupervised within a reasonable period of time" such as a further 12 months or that such an extended internship (appropriately structured and conditioned) would place "unreasonable burdens" upon those required to supervise her (see para [23]).

     The Show Cause Notice dated 16 February 2004 (para [22]) whilst stating that the Board had resolved that she was "incapable of satisfactorily completing the prescribed internship" primarily directed attention to the Board's decision to consider cancelling her registration.  The [applicant's] submissions in reply opposed that course, took issue with the allegations against her and contended that she had satisfactorily completed her internship.  No alternative submission was advanced in relation to whether her internship should be extended should the Board reach a conclusion adverse to her on the issue of satisfactory completion of internship.

     The evidence before the Board was primarily, if not only, directed to past events and it was left to the Board to reach a decision on the s.94(1)(b)(ii) issue on the basis of that evidence alone and in the absence of any direct evidence to the effect that the [applicant's] faults were incurable.

     The preponderance of evidence before me on this issue is to the effect that the [applicant] will, subject to a properly conditioned and structured internship of 12 months, satisfactorily complete that internship.

     I incline to the view that 'will' in s.94(1)(b)(ii) should be interpreted as 'may' but this was not argued and I need not express any definitive view on the matter.

     The onus will be on the [applicant].  If her performance to date is any indication she will have to make significant changes to her way of doing things and her attitude to others.  She must be prepared to learn and to admit mistakes and learn from them.  In my view it is likely that she needs psychiatric assistance of the nature referred to by Dr Kippax or at least assistance in relation to the personality problems highlighted by Professor Judd.

     Any extended internship should not be undertaken at the Townsville Hospital because of the personalities involved including hers.  See for example the evidence of Dr Rosenblum, para [275].

     For these reasons I consider the decision of the Board to cancel the [applicant's] registration should be set aside and the Board should be directed to extend the [applicant's] probationary conditions for 1 year by requiring her to undertake all of the prescribed internship.

     If the Board has power to vary the [applicant's] probationary conditions I consider it should be directed to do so by imposing additional conditions to the effect that during the prescribed internship the [applicant] should submit to and undergo such psychiatric treatment as is considered appropriate by the Board with regular reporting to the Board by the treating psychiatrist/s and that during the prescribed internship there be such mentoring and supervision as is considered appropriate by the Board, together with contemporaneous advice to the [applicant] of any perceived deficiencies in the performance of her internship and definitive assessment of her progress." (emphasis added)

  1. As to the last paragraph of this excerpt from his Honour's reasons, his Honour determined, after hearing further submissions from the parties, that the Board did not have power to vary the probationary conditions in the way contemplated by his Honour's reasons.[41]
  1. The effect of his Honour's decision was, in summary, that the probationary conditions imposed by the Board in its decision of 27 January 2004 would continue to apply to the applicant while she completed a full 12 months' internship. Under s 71 and s 72 of the Act, she was entitled to apply for and be granted a renewal of her registration to enable this order to be carried out.  The applicant made no such application, and no attempt to comply with the order.  In relation to the lapse of time between the decision of the District Court and the hearing of this application for leave to appeal to this Court, it should be noted that, in August 2005, directions were given with a view to a hearing of the application on 3 October 2005.  The application was listed for hearing on that date, but the applicant was unable to comply with those directions.  Thereafter, there were delays, by both sides, which necessitated the matter being mentioned twice by this Court in an attempt to progress the matter.  I make these observations not to direct criticism at any party, but to emphasise the point that the lack of utility in the present application is substantially the applicant's responsibility.

The applicant's arguments in this Court

  1. The applicant contended, in her application for leave to appeal to this Court, that:

"the real issue was whether, assuming that the treatment received by patients in some instances may have been sub-optimal, [the applicant] was responsible for that to a degree which called into question her fitness to be registered as a medical practitioner."

  1. Insofar as this submission is advanced as a basis for an order that the applicant is entitled to registration free of the probationary conditions imposed on 27 January 2004, the submission is misconceived. It should be emphasised that the decision of the learned District Court judge did not deny the "fitness" of the applicant to be registered, albeit conditionally. The Board's decision of 27 January 2004 was, as the learned primary judge appreciated,[42] not the subject of any appeal.  The setting aside of the Board's cancellation of 23 March 2004 meant that the applicant would enjoy the conditional registration given her on 27 January 2004, but only that conditional registration.  This difficulty alone would be fatal to the applicant's claim for the relief she seeks in respect of the probationary conditions relating to supervision and psychiatric treatment.  More fundamentally, the expiration of the applicant's registration, and the subsequent lapse of time, mean that the applicant's registration cannot now be restored by the Board pursuant to s 79 to s 81 of the Act.  Neither this Court nor the District Court can restore the applicant's registration.  There is no current registration which this Court can recognise.  There is not even a prospect that it might lawfully be "restored" under the Act.  The question of the applicant's registration is now one for the Board to decide afresh upon a new application to it. 
  1. There are other difficulties in the applicant's submission. In this regard, the District Court's affirmation of the decision of the Board that the applicant had not successfully completed the required internship was based on, amongst other things, the judge's conclusion that the applicant had failed satisfactorily to complete the required surgical rotation. This conclusion was, in itself, a sufficient basis on which to conclude that the applicant's internship had not been completed. It is a conclusion which was supported by the evidence.
  1. More broadly, the decision of the District Court was based on his Honour's preference for the evidence of witnesses other than the applicant and her witnesses. This Court may not disturb that conclusion to the extent that the judge's preference for one body of evidence over another is not open to review by this Court. The applicant was, therefore, constrained to argue that the proceedings below miscarried because of errors of law. It is convenient at this point to discuss these arguments.

Natural justice

  1. The applicant contended in the written outline of argument, which was prepared on her behalf by Mr Morris QC, that she was denied natural justice because the District Court judge "effectively" refused the applicant an adjournment of the hearing, and, as the applicant's written submissions put it, "[practically] forced [the applicant] to represent herself".
  1. This contention, if it were to be accepted on appeal, could lead only to an order for the rehearing by the District Court. That would be of little utility. As I have observed, the applicant's registration lapsed on 1 October 2004. A new hearing now in relation to the Board's decision that the applicant had not satisfactorily completed could not lead to registration of any kind, either registration on internship and probationary conditions, or registration free of such conditions. The only way the applicant can now be registered is by a fresh application to the Board.
  1. In any event, there is little prospect that the natural justice contention could be accepted. The applicant was not represented for most of the hearing, but, save for a period on the first day of the hearing, it was never suggested to the judge that the applicant was legally unrepresented for reasons other than her own choice to dispense with the lawyers she engaged from time to time.
  1. A party to litigation is entitled to a sufficient opportunity to enable "everything to be said that could be said in his [or her] favour",[43] but a party is not denied a fair hearing because of the absence of legal representation if she chooses to be unrepresented.  The issue is whether the applicant was denied a fair hearing because she was denied a reasonable opportunity to be legally represented. 
  1. In my opinion, this Court cannot conclude that the reason for the applicant being unrepresented was that she was denied a reasonable opportunity to be legally represented had she so desired. The one qualification that is necessary in this regard relates to the first three days of the hearing. As I have noted, during the afternoon of the first day of the hearing, Mr Franzese sought to engage Counsel to appear on the applicant's behalf. On the next day, the hearing was stood down for more than an hour while discussions occurred involving Mr Walters of Counsel with a view to his taking up the applicant's case. For reasons which were not disclosed to the District Court judge or to this Court, Mr Walters did not take up the brief for the applicant. The applicant continued to represent herself. She did not seek an adjournment on the morning of the second day even though she was by then aware, at least in a general way, of the difficulty involved in representing herself.
  1. On the hearing of this application, it was argued that the applicant's case suffered irremediable damage during the period of three days when the applicant did not have the benefit of legally qualified representation. The principal basis on which this is said to be so was that the applicant's conduct (in the course of representing herself) contributed to the adverse view which the judge formed of her character. It was not said that this irremediable damage would have been suffered on the first afternoon of the case.
  1. As I have said, the issue, so far as procedural fairness is concerned, is not whether the applicant was unrepresented: it was her right to conduct her own case. The question is whether she was denied a fair opportunity to exercise her right to be represented. In my view, it is far from apparent that this Court would be justified in proceeding on the footing that, after the abortive discussions with Mr Walters on the second day of the hearing, the applicant would have been disposed to accept the advice that she should not represent herself, or that she would have sought, or accepted, an adjournment to enable representation to be obtained.
  1. In this regard, there was no explanation given to the District Court by the applicant as to why the applicant was not represented by Counsel, rather than Mr Franzese, at the commencement of the hearing. The appeal record contains material introduced by the applicant before this Court containing details of her complaint to the Victorian Bar Ethics Committee about the conduct of Mr Dreyfus QC of the Victorian Bar, who had been engaged to represent her before the District Court prior to the commencement of the hearing.
  1. This material contains many assertions of failure by Mr Dreyfus to act in the applicant's best interests and expressions of dissatisfaction by the applicant with his preparation of her case. Because these assertions are untested, and particularly because Mr Dreyfus has had no opportunity to answer them, it is clearly undesirable for me to set out the details of these complaints here. It should also be emphasised that I do not wish to be taken to suggest that the applicant's complaints are in any way justified. I mention this material only because it demonstrates that the applicant came to a strong dissatisfaction with Mr Dreyfus' preparation of her case, and was disposed to give effect to her own view of things notwithstanding that a contrary view had been taken by eminent Senior Counsel. It was, for example, her view that Mr Dreyfus had failed to follow her instructions in relation to obtaining affidavits from relevant witnesses. It also appears from the applicant's material that the applicant asserts that Mr Dreyfus "terminated his services 1 week before the hearing stating that he will not put forth an argument for general registration in front of Judge Wall because Judge Wall will not have it". Evidently, the applicant was disposed to act upon her own view of legal issues even though that was contrary to the advice of qualified lawyers.
  1. The applicant's material contains the assertion that she was not "able to find a solicitor that was appropriate at such a late stage". It is clear, however, from the applicant's material that the applicant had a week to obtain alternative representation and advice as to her position. If appropriate Counsel could not have been adequately briefed in this time, then an application for an adjournment could have been made. There is no evidence that the applicant was unable to obtain appropriate advice in this regard. She had had the services of Holding Redlich, Yarra Legal, Mr Franzese, as well as Mr Dreyfus QC, and Junior Counsel. There is no evidence that she did not receive appropriate legal advice from them. There is also no evidence that she would have accepted that advice.
  1. In this latter regard, the transcript of the hearing shows that, when the prospect of the hearing being adjourned mid-way through the third day of the first five days allocated to the hearing (because of the unanticipated length of the hearing and the exigencies of the Court calendar) was raised, the applicant vigorously opposed the adjournment and pressed the judge to continue the hearing. At that time, of course, she was unrepresented. The fact that, at that time, she pressed for the hearing to continue suggests that she was content to continue the first stage of the hearing without the benefit of legal representation. That may, of course, have been due to a concern on her part that there should be no further delay to the determination of the case. Such a concern is perfectly understandable. But it also explains why she may not have been disposed to seek an adjournment on the first or second day of the hearing if she had been advised to do so.
  1. The adjournment of the case from August 2004 to January 2005 afforded the applicant ample opportunity to organise such further witnesses as she was minded to call in her case. More importantly for present purposes, it also afforded her the opportunity to engage other solicitors and Counsel. She engaged Mr Gorman of Counsel, and Gateway Lawyers to represent her. The services of Mr Gorman and Gateway Lawyers were terminated during the first day of the resumed hearing. The applicant then confirmed to the judge that she was "happy" to continue with the hearing. Gateway Lawyers were later re-engaged in relation to the institution of the application for leave to appeal to this Court.
  1. It may readily be accepted that the applicant was disadvantaged by the circumstance that she represented herself. The disadvantage suffered by a person who acts in litigation as her own lawyer is proverbial. In this case, it may also be accepted that the applicant was especially disadvantaged by her conduct of her own case in that her adversary was afforded the opportunity to point to her conduct of the litigation as affording confirmation of evidence that, in general, she resisted direction and correction, lacked insight into her shortcomings and was ill-disposed to learn from mistakes. It may also be accepted that it would have been desirable that the applicant be warned of the special potential for such disadvantage in a case where her character was, inevitably, in issue, and that no such warning was given to her by the judge. None of this, however, shows that the applicant was denied a reasonable opportunity to avoid these disadvantages.
  1. The applicant had many opportunities to take advice from her lawyers. This Court has no evidentiary basis for concluding that the applicant had not been given comprehensive advice as to the nature of the disadvantages involved in representing herself by one or more of the lawyers who acted for her prior to the hearing. Her demonstrated independence of view means that this Court would not be justified in concluding that the applicant would have been disposed to act upon such advice if it had been given.
  1. In these circumstances, the contention that the applicant was denied a reasonable opportunity to obtain legal representation is farfetched. There is no sound basis for this Court to accept that the applicant was unrepresented because the applicant was without advice to the effect, that she would be at a real forensic disadvantage in seeking to representative herself.
  1. Relevant in this regard is the circumstance that, during his address in reply on the hearing of the application, Mr Morris QC, who appeared with Mr Jurth of Counsel for the applicant, informed the Court of instructions from the applicant which he was not willing to put to the Court as his own submissions. These instructions involved the assertions that:
  1. the proceedings in the District Court miscarried because of the confusion of issues under s 88 of the Act with issues under s 94 of the Act.  This assertion must be rejected.  Section 94(1)(b)(i) expressly refers back to the cancellation procedure involving s 88 of the Act;
  1. the proceedings in the District Court miscarried in that the judge had admitted and acted upon hearsay evidence.  That assertion must be rejected:  it is contrary to s 239(1)(b) of the Act;
  1. that the proceedings before the Board were vitiated by procedural unfairness involving misconduct, and, indeed, fraud, by the Board.  No basis for that assertion is apparent in the evidence.  No reason why the members of the Board would be disposed to engage in fraudulent conduct was identified.  This assertion has no basis;
  1. that the District Court judge erred in assessing the evidence in that he failed to take into account the "demonstrated malice" of witnesses who gave evidence against the applicant.  Once again, this assertion is to be rejected.  Far from malice being demonstrated, it is not apparent that any witness bore such ill-will towards the applicant that it might have been a reason for giving false evidence against her.  Indeed, it is not apparent from the applicant's cross-examination of the witnesses called by the Board that she actually suggested to them that their evidence was the product of malice towards her.
  1. I refer to these matters here because the making of baseless assertions by the applicant, evidently contrary to the advice of Senior Counsel, is itself reason for scepticism as to the argument that the disadvantage suffered by the applicant because she was unrepresented would have been obviated had she been given advice that she might be disadvantaged by presenting her own case.

 Amateur psychiatry

  1. The applicant contends that the District Court judge's decision to impose the condition as to psychiatric treatment during the extended internship involved a failure to address the true issues before the District Court, and also involved the primary judge's substituting his own "amateur psychiatric diagnosis for expert evidence". Having regard to the opinions of Associate Professor Judd and Dr Kippax, it must be said that this criticism of the learned District Court judge is hardly fair. Neither of these experts was required for cross-examination on their reports. His Honour committed no error of law in acting on the opinions of experts.
  1. It is also said on the applicant's behalf that this evidence had little or no relevance to the issues before the District Court. This evidence was, however, plainly relevant to provide a basis for a full understanding of the applicant's conduct in relation to the key incidents.
  1. There is a further difficulty in the way of treating this contention of the applicant as a basis for the grant of leave to appeal. If it is correct to say that his Honour erred in law in proceeding on the footing that this approach (which well might have been thought to be generous to the applicant) was available to him, then it does not follow that the condition should be removed much less that it could be removed by this Court. To the extent that the applicant's complaints about the judge's "amateur psychiatric diagnosis" might be accepted on appeal, the applicant's success in that regard would only serve to undermine the decision of the District Court to extend the applicant's internship rather than to cancel her registration outright under s 94(1)(b)(i) of the Act. 
  1. It is clear from the excerpt from his Honour's reasons set out above at paragraph [47], and particularly the highlighted passages, that an important element of his Honour's decision to quash the cancellation of the applicant's registration was his view that the applicant's "known psychiatric or personality problems … may have contributed to the way she acted", and needed ongoing mentoring. It was only on the basis that an "appropriately structured and conditioned" extended internship would enable the applicant satisfactorily to complete her internship that the judge decided to extend her internship rather than to cancel her registration. To the extent that it was impermissible for the District Court judge to act upon his "amateur psychiatric diagnosis", the basis for his Honour's conclusion that the applicant will have completed her internship at the end of the extended period disappears, with the result that the only order that could properly have been made by the District Court was an order for cancellation.

Standard of proof

  1. The applicant's contentions also include an argument that the learned District Court judge erred in law in paying only "lip service" to the standard of proof required by Briginshaw v Briginshaw.[44] 
  1. That criticism of the judge was not justified having regard to his Honour's careful evaluation of the significant body of evidence adverse to the applicant in terms of her performance of, and attitude towards, her duties during her internship. It should also be said, in relation to the question whether the applicant had satisfactorily completed her internship, that the District Court was not concerned with whether the applicant had been guilty of "infamous conduct"[45] or whether "grave moral delinquency"[46] was established to its satisfaction.  No counsel of prudence or caution, appropriate to proof of moral turpitude, was relevant to the resolution of this ultimate issue or, indeed, of the factual issues which related to the competence of the applicant in the discharge of her duties as an intern.[47] 
  1. Furthermore, the case did not involve a "serious consequence", such as the striking off of a registered medical practitioner whose entitlement to practise has previously been established. Rather, the case was concerned with whether the applicant had completed requirements necessary to be granted unconditional registration and thereby to assume the special powers and responsibilities for the health and welfare of members of the public. It may be doubted whether the principles in Briginshaw v Briginshaw applied to any aspect of this case. 
  1. For the sake of completeness, I should also mention that I would wish to reserve my opinion on the question whether the Board did, in truth, bear the onus of proof, either in relation to the ultimate issues, or the key incidents. The issue was whether the Board (or, on appeal, the District Court judge) was satisfied that the internship had been satisfactorily completed. It was not whether some misconduct had been proved so as to justify cancellation of registration. For present purposes, one may proceed on the footing that the applicant properly had the advantage of favourable rulings by the judge on both the onus of proof and standard of proof.
  1. At the hearing of the application in this Court, the key incident relating to the applicant's management of JY, a patient suspected of having meningitis, was the subject of special attention by Mr Morris QC. It was contended that this incident demonstrated that, only by paying "lip service" to the approach in Briginshaw v Briginshaw, could one accept that there was a sufficient evidentiary basis for a finding that the applicant's management of this case was so unsatisfactory as to warrant the conclusion that she had not satisfactorily completed her internship.  There were, of course, other key incidents, and other adverse findings, but it is useful to consider this example chosen by the applicant to illustrate the difficulty which confronts the applicant's contention that there was no evidence which might support his Honour's conclusion that the applicant had not satisfactorily completed her internship.
  1. At the hearing before the District Court judge, the applicant's evidence was that her diagnosis excluded meningitis as a possible cause of the patient's symptoms so as to obviate the need for a lumbar puncture as a diagnostic measure, and that she had discharged the patient only after presenting the case to Drs Coley and Gelhaar. That version of events was contradicted by the evidence of Drs Coley and Gelhaar. The patient JY said that he was not seen by any doctor other than the applicant.
  1. The applicant's evidence at the hearing also contrasted markedly with statements in a letter dated 12 March 2004 from her solicitors to the Board's solicitors. There, it was said:

"After her initial assessment, our client consulted with Dr Gelhaar and suggested that a lumbar puncture be performed.  She was informed by Dr Gelhaar that 'interns do not do lumbar punctures' and Dr Gelhaar took over management of the patient on what was a busy night in Emergency."

  1. In a comprehensive and detailed affidavit sworn by the applicant on 21 May 2004, the applicant said that she was unable to explain why a lumbar puncture was not performed, and that she felt "sure that [she] would have discussed the possibility of a lumbar puncture with a more senior doctor".
  1. When Dr Coley gave evidence, the applicant asserted that he was "not around" when this incident occurred. In her cross-examination of Dr Coley, the applicant did not suggest that she had presented the case to him for his opinion.
  1. In her cross-examination of Dr Ashley, the applicant suggested that she, the applicant, had presented this case to Dr Ashley for her opinion. This suggestion was denied by Dr Ashley. It was not supported by the applicant's own evidence.
  1. The patient's file notes from the hospital afforded no support for the suggestion that the applicant consulted any of Drs Coley, Gelhaar or Ashley in relation to this case. They did, however, contain a note in the applicant's hand saying "exclude meningitis"; which could be thought to support her case of a clear diagnosis negativing meningitis.
  1. In relation to this incident, the judge found:

"… Much time and evidence was devoted to this incident.  The overwhelming preponderance of the evidence given by the Board witnesses (Drs Gelhaar, Jessica Lucas (who was not required for cross-examination), Ashley, Coley, Small and Cooksley and Professor Judson) which I accept, is against the case advanced by the [applicant].  I cannot accept her evidence.  In my view her unilateral decision to discharge the patient placed him at serious risk.  A lumbar puncture should first have been performed and she should have realised that.  The [applicant] attempted to justify a serious error of judgment by ex post facto improvisation and a subjective interpretation of the patient's medical history based on an examination of his complete file which was subpoenaed for the purposes of the appeal.  Her explanation was redolent with hindsight rationalisation.  She is still unable to accept the opinions of very experienced emergency practitioners who gave evidence and to this day continues to advance an untenable interpretation of her conduct and the reasons behind it.  She cannot accept that her decision to discharge the patient was wrong and the reasons why it was wrong.  For present purposes it matters not whether JY was subsequently diagnosed with viral or bacterial meningitis, the fact remains that the [applicant] should have but didn't, order or perform a lumbar puncture.  (I should mention that I am satisfied from the evidence of Dr Cooksley that JY in fact had meningitis.  Dr Small thought he didn't but I think he is mistaken; Dr Cooksley's examination of the patient's records was much more detailed than Dr Small's and I felt he had a better understanding of the overall picture.  In the final analysis it doesn't really matter if JY did not have meningitis; the issue is that he presented with signs of possible meningitis and in these circumstances a lumbar puncture should have been performed).  She discharged the patient without first presenting him to a Registrar or Consultant as required by the Emergency Department Manual, see para 2.14 ex NRS1 to ex 7.  I do not believe her when she says she presented him to Dr Gelhaar on her morning rounds; JY also says that didn't happen.  She did not, as she should have, discuss the patient with Dr Gelhaar or Dr Ashley.  No record of any such discussion or presentation of the patient to either doctor was made on the patient's chart.  If this had occurred as the [applicant] said it did, she should have, but didn't record it.  I also accept the evidence of Dr Gelhaar (T135) that if the patient had been presented to a senior doctor in the morning he would not have been allowed to go home.  If she was uncertain about whether to order a lumbar puncture she should have consulted a senior doctor.  Drs Gelhaar, Jessica Lucas, Ashley, Small, Cooksley and Coley all said a lumbar puncture was indicated and had they been consulted that is what in all probability would have happened.  The [applicant] treated the patient inappropriately.  Her treatment of him was 'unacceptable' (Dr Small T307).  See also paras [269], [272] and [273]."

  1. Whether or not the patient JY was suffering from meningitis, and whether or not a lumbar puncture should have been performed, the applicant's inability to provide a coherent account of her management of JY supports a finding, based on the evidence which his Honour accepted, that her management of JY was distinctly unsatisfactory. It is not necessary that the evidence support a conclusion that she was heartless or uncaring, or recklessly incompetent. The point for present purposes is that it was clearly open to the District Court judge to conclude that her performance had been shown to be unsatisfactory in an important facet of the work of an intern.
  1. To the extent that the applicant complained that the District Court judge reached his ultimate conclusion in relation to this particular key incident via what was characterised as "an unjustified finding of reconstruction by the applicant", the various versions given by the applicant mean that the view taken by the judge[48] was one which was available to him on the evidence even if every allowance is made for understandable imperfections in the applicant's recollection of events.

The Board's cross-application

  1. I turn then to the question whether this Court should entertain the Board's proposed cross-appeal against the decision of the District Court to allow the applicant an extension of time within which to complete the period of internship satisfactorily.
  1. The Board contended that the conclusion of the District Court is not supported by his Honour's findings and is inconsistent with his views that:

"[i]f her performance to date is any indication she will have to make significant changes to her way of doing things and her attitude to others.  She must be prepared to learn and to admit mistakes and learn from them.  In my view it is likely that she needs psychiatric assistance of the nature referred to by Dr Kippax or at least assistance in relation to the personality problems highlighted by Professor Judd."[49]

  1. On the hearing of the applicant, it was argued by Mr Tait SC, who appeared with Mr Rafter SC for the Board, that the learned trial judge had misunderstood the evidence of Professor Judson. It was submitted that the effect of Professor Judson's evidence was that a further period of internship would give the applicant a better opportunity to show that she could comply fully with the requirements of internship, whereas his Honour treated this evidence as supporting the conclusion that full compliance would be achieved.
  1. As has been seen, however, the judge came to the view that the applicant would probably make the changes in her conduct and attitude necessary to enable her satisfactorily to complete her internship in that extended period. His Honour had the advantage of seeing the applicant in forming his assessment of her ability to demonstrate her ability to complete her internship satisfactorily if an extension of the internship were ordered.
  1. It was also submitted by Mr Tait that the judge erred in law in treating s 94(1)(b)(ii) as a warrant for permitting a registrant to perform the totality of an internship afresh. There is support for Mr Tait's submission in the text of s 94(1)(b)(ii). The reference to the requirement "to undertake a part of the internship or program" seems to be predicated on the identification of a discrete part of the internship which has not been satisfactorily completed, while the balance has been so completed. Section 94(1)(b)(ii) is unlikely to have been intended to afford an alternative to cancellation where the registrant's failure satisfactorily to complete the internship is not limited to some discrete part of the internship which has been undertaken. The Act does not seem to contemplate an extension to enable a requirement of a whole new internship.
  1. I am of the view that there is force in the submission of the Board that the judge erred in law in his view of the width of the operation of s 94(1)(b)(ii) of the Act. That having been said, however, the failure of the applicant's application for leave, and the consequence that the applicant must now apply to the Board for re-registration which will be able to apply appropriate conditions to the registration of the applicant, lead inevitably to the conclusion that there is little utility in granting leave to enable a full consideration of the Board's arguments.

Conclusion and orders

  1. The applicant has not identified an error of law to be corrected by this Court if leave to appeal were to be granted. More importantly, however, for the reasons I have set out, there is no utility in granting the applicant leave to appeal because the only means whereby she can be registered at all is by a fresh application to the Board for a new registration. While the Board has identified an arguable error of law in the decision of the District Court, there would be no sufficient utility in granting leave because the judge's order for an extension of the probationary conditions now has no significance so far as the applicant's right to practise medicine is concerned. A successful cross-appeal by the Board would only be a peg on which the Board might hang an argument for an order as to the costs of the hearing in the District Court more favourable to the Board; but that is not, in my view, sufficient reason in the circumstances of this case to warrant a grant of leave to the Board.
  1. I would, therefore, refuse both the application for leave to appeal and to cross-appeal.
  1. The Board seeks an order for its costs of the application to this Court. In that regard, the usual rule is that costs follow the event. There is no reason why this rule should not be applied here. As to the Board's cross-application, it attracted little attention in argument. There would be more mischief than justice in the complications which might follow from an order for costs in the applicant's favour on the Board's cross-application. In these circumstances, I consider that the appropriate course in relation to the costs of the Board's cross-application is to make no order as to costs.
  1. DUTNEY J:  I have had the advantage of reading the judgment of Keane JA.  I agree with the orders he proposes and with his reasons for proposing those orders.

Footnotes

[1] Section 43(1)(b), s 46 and s 94 of the Act.

[2] Section 157, s 158, s 160, s161 and s 162 of the Act.

[3] Section 43(2), s 57, s 58 and s 59 of the Act.  The terms of the prescribed internship are set out in s 4 of the Medical Practitioners Regulation 2002 (Qld)

[4] Section 57(3)(a)(ii), s 57(3)(b)(ii), s 84, s 85 and s 88 of the Act.

[5] Section 237 and s 238 of the Act.  Appeals lie from decisions for which an "information notice" must be given.

[6] Section 239(2) of the Act.

[7] Section 240(2) of the Act.

[8] Section 56(1) of the Act and Medical Practitioners Registration Regulation 2002 (Qld) s 3.

[9] Section 71 and s 72 of the Act.

[10] Section 75(2) of the Act.

[11] Section 70(1) of the Act.

[12] Section 75 of the Act.

[13] Section 78 and s 79 of the Act.

[14] Section 82 of the Act.

[15] Section 83 of the Act.

[16] Section 7 of the Act.

[17] Cf s 118(9) of the District Court of Queensland Act 1967 (Qld).

[18] Fox v Percy (2003) 214 CLR 118 at 129 [32]; Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934 at 1942 - 1943 [49] - [52].

[19] Pickering v McArthur [2005] QCA 294 at [3].

[20] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [4].

[21] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [6].

[22] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [6].

[23] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [7].

[24] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [8].

[25] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [14].

[26] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [16].

[27] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [17].

[28] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [19].

[29] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [23].

[30] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [284].

[31] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [26].

[32] (1938) 60 CLR 336.

[33] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [26] - [31].

[34] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [50].

[35] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [53].

[36] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [55].

[37] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [93].

[38] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [277].

[39] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [277].

[40] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [278] - [289].

[41] Tsigounis v Medical Board of Queensland (No 3) [2005] QDC 177 at 5 - 6.

[42] Tsigounis v Medical Board of Queensland (No 3) [2005] QDC 177 at 5.

[43] South Australia v O'Shea (1987) 163 CLR 378 at 405; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 660 - 661.

[44] (1938) 60 CLR 336 at 362 - 363.

[45] Hewett v Medical Board of Western Australia [2004] WASCA 170.

[46] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 - 363.

[47] See Ooi v Medical Board of Queensland [1997] 2 Qd R 176 at 178.

[48] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [117].

[49] Tsigounis v Medical Board of Queensland [2005] QDC 103 at [286].

Close

Editorial Notes

  • Published Case Name:

    Tsigounis v Medical Board of Qld

  • Shortened Case Name:

    Tsigounis v Medical Board of Queensland

  • MNC:

    [2006] QCA 295

  • Court:

    QCA

  • Judge(s):

    Williams JA, Keane JA, Dutney J

  • Date:

    15 Aug 2006

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Appeal Determined (QCA) [2006] QCA 295 15 Aug 2006 -
Special Leave Refused [2007] HCATrans 234 24 May 2007 -

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)