Re Cantwell[1997] QDC 21

(Issued subject to correction upon revision.)

APPELLATE JURISDICTION

JUDGE BRABAZON

and

BRISBANE

DATE 18/02/97

RULING

HIS HONOUR: In this case there is a preliminary issue about the nature of the hearing required by section 24 of the Physiotherapy Act. It is desirable that that question be decided before the hearing starts. Section 24 of the Physiotherapy Act provides for an appeal to this Court from two procedures of the Board; that is, a refusal to register a person or an order under section 21. This is an appeal against an order under section 21.

Section 24(3) provides, “An appeal under this Act shall be by way of rehearing and, subject to this Act, the decision of the Judge shall be final and shall be given effect to by the Board”. I am informed that there has been no decision as to the nature of that rehearing; that is, is it a rehearing on the papers or is it a rehearing de novo? The issue is important in this case because of the limited nature of the evidence that was given at the hearing before the Board.

In my view, a complete answer to this supposed difficulty can be found in the decision of the High Court in Builders Licensing Board v. Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616. Before returning to that, it is useful to note that in other vocational appeals in Queensland it has been uniformly found that the varying legislation provides for a hearing de novo. In the case of the pharmacists, that is as a result of the decisions in Re H (1972) Queensland Reports 402 and in Doyle v. The Pharmacy Board of Queensland, 7 Queensland Lawyer 333. In the case of the accountants, Re Fredericks (1984) 1 Queensland Reports at 438 reaches the same conclusion in substance. As Carter J there concluded,

In the case of engineers, the same result is reached in Thomas v. Board of Professional Engineers Queensland, QLR 48. That is an illuminating decision and the propositions of law set out by McGuire DCJ can be usefully applied to this case. Finally, the position under the Auctioneers & Agents Act is the same as demonstrated by the decision in Amos v. Auctioneers & Agents Committee, 6 Queensland Lawyer 290.

In Queensland the distinction between a rehearing on the papers and a rehearing de novo was at the centre of the Full Court's decision in Re Schubert (1989) 2 Queensland Reports 99. It there seems to be assumed that there was a rigid distinction between the two different procedures and that such a distinction made the appeal necessary. As Williams J put it in discussing the decision in Sperway Constructions:

It should be pointed out that in Queensland it is now established, at least in the case of a simple rehearing, that there is considerable discretion in the Court to frame the nature of the hearing depending upon the justice of the case. There are two Queensland decisions which clearly establish this proposition.

The first is Re Boothroyd (1986) 1 Queensland Reports, 167 at 168. There Thomas J adopted what had been said by the majority of the New South Wales Court of Appeal in Ex Parte Currie (1968) 2 New South Wales Reports 378 where it was held by them that when legislation is silent on such matters, the Appeal Court is bound to decide the matter as at the date of hearing the appeal and that the Court has the discretion to conduct the appeal as a hearing de novo.

To similar effect was the decision of the Full Court in R v. The Land Court ex parte Kencott Explorations (1989) 1 Queensland Reports 335. There it was again Thomas J on behalf of the Full Court who expressed the same principle at page 340.

It is apparent that those decisions of the Full Court (which are, of course, binding on this Court) gain much support from the judgment of Jacobs J of the High Court in Sperway Constructions. It is plain that the Court has a large discretion to frame the appropriate procedures where the procedure is a simple rehearing. It is not clear how far the discretion can be exercised when an appellant is entitled, as of right, to a rehearing de novo. It seems there is a discretion at least to mould the procedure to prevent a waste of time, bearing in mind what has happened at the earlier procedures.

There is a comprehensive discussion of the different forms of rehearing in Moursellas v. Pharmaceutical Council (WA) 1992 10 WAR 240. There a rehearing de novo was found to be required. See also Forbes, “Disciplinary Tribunals” (2nd Edition) The Federation Press 1996 at para 16.16.

I should say, having mentioned those authorities, that it is clear to me that section 24 of the Physiotherapist Act provides for a rehearing de novo. As well as being guided by the decisions I have mentioned above, such a conclusion also flows from the structure of the Act.

There are two dominant considerations. The first is that section 24 allows an appeal not just from a disciplinary inquiry, as in this case, but also from a refusal of the Board to register an applicant as a physiotherapist. The Board's procedures there do not involve anything in the nature of a full inquiry.

Secondly, the procedure of the Board is more to be compared with an inquiry under the Commissions of Inquiry Act 1950 than a hearing of a judicial nature. For example, there is no requirement to obey the laws of evidence or to give reasons for a decision. In my view, it is clear that this is a rehearing de novo.

That then leads to the requirement of some proper directions in this case. The parties should already have been following the procedure laid down by Her Honour Judge McMurdo, a procedure, I might say, which was reached by consent between the parties. In addition, I would say that the basic approach in this Court is to do this: either party may rely upon any of the material placed before the committee and may also furnish additional material. If one party relies upon evidence given before the committee and tenders that evidence as part of its case then the other party is entitled to require that witness to be called for cross-examination. That approach is consistent with the assumptions in the order for directions.

According to the established practice, on the hearing of the appeal the onus is on the committee to establish the charges and the committee should proceed to call its evidence first, subject of course to any agreement between counsel to the contrary.

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IN THE MATTER OF

THE PHYSIOTHERAPISTS ACT 1964, AND

IN THE MATTER OF

AN APPEAL BY LYNLIE MAUREEN CANTWELL

REASONS FOR JUDGMENT

BEFORE JUDGE BRABAZON Q.C.

Judgment delivered: 14th March 1997

Catchwords:

IN THE MATTER OF

THE PHYSIOTHERAPISTS ACT 1964 AND

IN THE MATTER OF

AN APPEAL BY LYNLIE MAUREEN CANTWELL

REASONS FOR JUDGMENT - JUDGE BRABAZON Q.C.

Delivered the 14th day of March 1997

The Appeal

The parties to this appeal are Mrs Lynlie Cantwell, a senior Brisbane physiotherapist, and the Physiotherapists Board of Queensland, a body corporate created by the Physiotherapists Act 1964.

In 1996, the Board acted under s. 21 of that Act and held an inquiry into nine complaints against Mrs Cantwell. The complaints were contained in a number of affidavits. During the hearing, Mrs Cantwell was at first represented by solicitors and counsel, but later appeared alone. There was cross-examination of the deponents, but she declined to give any evidence herself. The Board gave its decision on 9 October 1996. It referred to the Amended Notice of Inquiry which set out the complaints. The Board found that the evidence of all the witnesses was credible. It found that: “The conduct of Mrs Cantwell in relation to all paragraphs of the Amended Notice of Inquiry constitutes conduct discreditable to a physiotherapist”. (A finding based on s. 21(1)(c) of the Act, which enables the Board to take disciplinary action against a physiotherapist “who has been guilty of any conduct deemed by the Board to be discreditable to a physiotherapist”.)

In reaching its conclusion, the Board applied the test of professional misconduct appropriate to a solicitor, as established by the Full Court of Queensland in Adamson v. Queensland Law Society Incorporated (1991) Qd. R. 489. There, it was held that the test of professional misconduct was whether “the conduct violated or fell short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.”

The Board then referred to each complaint, before deciding that Mrs Cantwell's registration as a physiotherapist should be suspended for a period of 12 months, commencing no later than 1 January 1997. That order is stayed, pending this appeal.

Mrs Cantwell, being aggrieved by the order of the Board, has appealed to this court. S. 24(3) of the Act provides that:

The appeal was heard over about four and a half days, from 17-21 February. The first controversy centred on the nature of the hearing - was it to be a rehearing on the evidence below, or a rehearing de novo? In a ruling given on the second morning, I held that it was to be a rehearing de novo. The record of the proceedings below was accepted as evidence before me, the witnesses were recalled, there was further cross-examination and some new evidence was given. In particular, Mrs Cantwell and her son, Mr Nicholas Cantwell, gave evidence for the first time, and they were cross-examined by counsel for the Board. A transcript of that ruling is attached to these reasons.

Counsel submit, and I accept, that the appropriate meaning of the expression “conduct discreditable to a physiotherapist” is that described by Mr Justice Pape in Mercer v. Pharmacy Board of Victoria (1968) V.R. 72. There, he was considering the meaning of the expression “conduct discreditable to a pharmaceutical chemist”. The expression is to be found in other statutes regulating occupations involving the health and safety of members of the community. He said:

It can be seen that the test adopted by the Board in this case was rather different. It appears to have been a stricter standard, if anything, so Mrs Cantwell cannot complain. However, it is desirable that the Board adopt the accepted test in Australia in any future inquiries.

The Appellant

Mrs Cantwell worked for the Commonwealth Rehabilitation Service for many years. She left in 1989, and did some work as a locum for a private practice. In 1991 she established her own practice from rooms at Wickham Terrace. She concentrated on medico/legal assessments, and reports for the workers' compensation authorities.

In December 1993 she bought a second practice, at the Hyperdome Medical Centre at Loganholme. Then, she opened a clinic at Aspley from July 1995 to December 1995. She took over a small clinic at Caboolture, but operated it only from November 1995 to January 1996. Her stationery for 1995 also shows that she had at least a presence in practices at Bracken Ridge, Woodridge and Southport.

At first Mrs Cantwell carried on practice in her own name. Then, from May 1994, her practices were carried on by a company, Lynlie Cantwell Pty Ltd. The directors were herself and her son Nicholas. That company ceased its activities about a year ago. There has been no suggestion in these proceedings that the existence of the company makes any difference to this inquiry into Mrs Cantwell's conduct as a physiotherapist.

It is apparent that 1995 was a very difficult year for Mrs Cantwell, both professionally and personally. In January, her ex-husband committed suicide. Her son Nicholas, who was then 18 years old, found his father's body. About three months after that, Nicholas' paternal grandfather died. Apart from the personal upset, the practices were affected as Nicholas had assisted as an administrator since December 1993.

In October 1995 Nicholas was involved in quite a serious car accident. He was injured. He was away from work on workers' compensation for about six weeks - though it is apparent that he attended his mother's clinics, at least for some of the time, in November.

The Standard of Proof

It is established that this appeal is a civil, rather than a criminal proceeding. Proof of the complaints beyond a reasonable doubt is not required. Rather, the complaints have to be proved to the satisfaction of the court on the balance of probabilities. The gravity of the fact to be proved may demand a higher degree of satisfaction. See Adamson's case (supra) at 504.

As a result of his father's suicide, Nicholas developed a severe reactive depression. He has been in and out of a psychiatric hospital ever since. Indeed, he was an in-patient at the Royal Brisbane Hospital during the hearing of this appeal. I should say that he appeared to be a coherent witness, even though he was taking anti-depressant medication.

Mrs Cantwell says that her practice at the Hyperdome was robbed on 26 January 1996 and that most of the client records and all business accounts, the computer and its discs were stolen. She complained to the police but nothing was recovered.

It is appropriate to deal first with complaint no. 7.

Complaint No. 7

This complaint alleges that:

In October 1993 Mrs Cantwell signed a business contract, containing the terms of her agreement to buy the Loganholme practice from another physiotherapist, Ms Linda Lewis. The contract provides that the practice will be sold as a going concern, and that possession is to change hands on a certain date. As it happened, that date was extended, and possession was finally taken by Mrs Cantwell on Friday, 17th December 1993.

Clause 20(b) of the contract provided that Miss Lewis was entitled to payment of all debts owing to the business at the date of possession, and that Mrs Cantwell would promptly account to her for all payments received by her relating to such debts.

At the time, the practice received income from the Workers' Compensation Board. On 11th December Miss Lewis contacted the Claims Administration Office of the Board and advised of the change of ownership taking place on 17th December. The Board agreed that all payments for services up to and including 17th December were to be made to Miss Lewis, and that from 18th December payments for services were to be directed to Mrs Cantwell.

The Board acted on that information, by compiling a printout of all the payments due up until 17th December. They amounted to $2,606.60. Miss Lewis was entitled to that money. However, either there was no actual instruction as to where the cheque for that amount was to be sent or, if there were such an instruction, it was overlooked. A cheque, dated 18th December 1983, was drawn in favour of the Hyperdome Physiotherapy Clinic, and was posted to the practice.

In December 1993, Miss Lewis had been conducting the practice with the assistance of an employed physiotherapist, a Miss Fiona Lehane. The arrangement was that Miss Lehane would continue on as an employee, after Mrs Cantwell took over, and that Miss Lewis would attend the practice for one week to assist in the handover.

Miss Lewis's husband was Mr. M.R. Underwood, a software developer. He was responsible for the program on the practice computer which was used to manage the accounts. He discussed the program with Nicholas Cantwell. There is a conflict as to whether or not the program was to be left in place after 17th December, to continue to record the details of the Lewis accounts, or removed to allow a fresh start. I accept his evidence, to the effect that he agreed with Nicholas Cantwell that the program would stay to assist in dealing with payments that were received after 17th December.

Miss Lehane gave evidence. She recalled the takeover, and the fact that she worked for Mrs Cantwell until 12th January 1994. There was no receptionist employed in the practice, before or after the takeover. She recalled receiving the cheque for $2,606.60. She brought up the previous accounts on the computer screen, and marked them off as “paid”, according to the printout which accompanied the cheque. That was probably about the middle of the week beginning Monday, 20th December. She put the cheque in a locked drawer, as it was not her job to do any banking for Mrs Cantwell. Some time after she received the cheque she spoke to Miss Lewis, told her that the cheque had been received, and that she had marked off the accounts.

The cheque was banked to Mrs Cantwell's account on 24th December - Christmas Eve. It was banked by a receptionist sent by Mrs Cantwell from her city rooms.

Miss Lewis spoke to Mrs Cantwell about the cheque on 23rd or 24th December. Mrs Cantwell denied any knowledge of it. The evidence does not establish that Mrs Cantwell's response was less than honest - she may well have known nothing at that time.

Miss Lewis was concerned, and asked Mr. Underwood to follow the matter up on her behalf. He spoke to Mrs Cantwell or to Nicholas Cantwell several times. Both denied any knowledge of the cheque. Again, the evidence does not establish positively that they knew what had happened. Mr. Underwood then contacted the Board directly, and found out that the cheque had been banked into Mrs Cantwell's account. He spoke to Nicholas Cantwell and told him what he had learnt. Nicholas made some non-committal response. Mr. Underwood then said he would be coming around to the practice that afternoon to pick up a cheque.

At that stage at the latest, Mrs Cantwell must have learned the true position. She rang Mr. Underwood, saying that it was not convenient for him to come and collect the cheque. He recalls her saying that: “We need to negotiate about it”. Mrs Cantwell says that she was referring to the need to negotiate with the Board, so that it might supply Miss Lewis with another cheque. Whatever words were used in the conversation, I accept that Mr. Underwood was left with the impression that Mrs Cantwell was not recognising any duty to account for the $2,606.60, but rather was proposing a negotiation about it. Mr. Underwood said that there was nothing to negotiate about.

The evidence establishes that Mrs Cantwell must have been fully aware of the true position about the cheque by, at the latest, early January 1994. The contract with Miss Lewis required her to account promptly for that amount of money. She did not do that. She became in breach of her contractual obligation to Miss Lewis.

Mrs Cantwell knew that it was not unusual for the Board to make incorrect payment of accounts, and then to issue another cheque to correct the position. Where accounts were overpaid, she knew that the Board might allow a physiotherapist to keep the overpayment for a time, in the expectation that the repayments would be taken out of further fees as they became due from the Board. Rather than pay Miss Lewis the money, she started discussions with the Board, to the effect that it would give Miss Lewis another cheque for $2,606.60, allowing her to “repay” that amount from fees which became progressively due to her. She did not explain what she was doing to Miss Lewis, or to Mr. Underwood. On 31st January she met a Ms Lindgren from the Board and discussed a repayment plan for the money. In the result, Miss Lewis's money was paid to her, by a direct bank entry dated 11th February 1994. Miss Lewis learned that she was to receive the Board's payment when Mr. Underwood spoke to the Board in late January.

While the Board was accommodating in entering into the arrangement with Mrs Cantwell, there is no reason why it had to do so. There is no reason why she could not have paid Miss Lewis direct. Mrs Cantwell acted as she did because it suited her, in effect, to arrange an advance of the money from the Board, which she could pay back over time. While she was doing that, Miss Lewis was most concerned about her money.

The Physiotherapists Board found that Mrs Cantwell's behaviour was dishonest. Counsel for the Board had submitted to it, that her conduct had been very serious, and that monies due to Miss Lewis had been converted to Mrs Cantwell's own use. Mrs Cantwell's banking of the cheque was not dishonest. The business contract anticipated that Mrs Cantwell would bank the cheque, and then account promptly for its proceeds. As the cheque was drawn in favour of the Hyperdome Physiotherapy Clinic, that was another reason for banking it. Her failure lay in not accounting promptly for its proceeds. Her failure amounted to a deliberate and calculated disregard of Miss Lewis's interests, so that she could negotiate an arrangement with the Board which suited her. It was in breach of her contract. It distressed Miss Lewis and her husband, and she must have known that.

It was submitted for Mrs Cantwell that such conduct was not “discreditable to a physiotherapist” as it was not part of her practice as a physiotherapist, and it did not affect public confidence in her, or the practice of physiotherapy.

Many Tribunals are established under a variety of statutes, giving power to inquire into the conduct of those who practice in those areas. In each case the extent of those powers will involve the construction of the statute. Usually, it can be seen that the power to discipline is not restricted to the immediate carrying on of a particular profession or occupation. For example, in Henry v. Ryan (1963) Tasmanian State Reports 90, it was held that a police officer could be guilty of misconduct against the discipline of the Police Force, even though he was off duty at the time. As it was said,

To the same effect, in the recent Queensland case of Dr. Michael Coroneos (Medical Assessment Tribunal, 23/06/94) a neuro-surgeon pleaded guilty to fraudulent claims against Medicare. He was suspended from practice for a time, and was then allowed to return under strict conditions. The Tribunal said,

To those cases may be added the familiar examples of sexual misconduct by a medical practitioner towards a patient. That has invariably been regarded as serious professional misconduct, even though the patient may consent.

I accept that not all undesirable conduct on the part of a registered physiotherapist is liable to be dealt with by the Board. It must be discreditable, with reference to the practice of physiotherapy. There appears to be a distinction between a conviction for an indictable offence (i.e. a serious offence in any circumstances) and conduct discreditable to a physiotherapist, (which is conduct arising out of the practice of physiotherapy.) In my opinion, it is not enough that her conduct brought discredit on herself, in her dealings with another physiotherapist. In buying the practice from Miss Lews, she was not practising physiotherapy. It was a commercial transaction, to enable her to practise at Loganholme. Her conduct was discreditable, but it did not fall within the disciplinary powers of the Board. It follows that the complaint is not made out.

(Evidence of Mrs Cantwell's conduct towards Miss Lehane was admitted as similar fact evidence. It appeared that Miss Lehane was not paid when she left on 12th January 1994, nor was she paid for several months. Miss Lehane had a letter of demand sent, and she was then paid.)

Complaint No. 3

Complaint No. 3, as amended, alleged that:

The report was requested on 11th November 1994. When it did not appear, a secretary rang the Hyperdome Clinic several times, beginning on 16th January 1995. In the result, the report was predicted for mid-February.

On 20th June 1995, Mrs Cantwell sent her account for an assessment and examination of Mrs Visser, which took place on 15th June. That was for $360. That account was paid on 4th July 1995.

By early October 1995, there was still no sign of the report. A secretary telephoned the clinic. She was informed that the report was being done at the time, and that the solicitor should have it by the end of the week. That call was on 2nd October. No report was received, as far as the solicitors know. A secretary telephoned the clinic on 13th November 1995, and then the Wickham Terrace rooms, as there was no answer. There was no response to her message.

On 8th January 1996, Mr. Bell, the solicitor in charge of the file, wrote and complained. He asked for a refund of $360 if the report was not going to be provided. There was no response to his letter.

On 2nd February 1996, Mr. Bell rang the clinic, and was informed by a male physiotherapist that there was a note to say that the report had already been sent, and that the position would be checked. However, there was no further response.

On 12th February, Mr. Bell attempted to contact Mrs Cantwell by telephone at her various clinics. He left messages for her, but received no response. The next day he wrote a letter, recounting his efforts to find out what had been happening. He expressed his displeasure, and asked for a reply.

On 22nd February Mrs Cantwell rang and spoke to a secretary. She promised to have the report to the solicitors by fax on the following Monday. It did not arrive.

On 6th March 1996 Mrs Visser telephoned her solicitors, recounting the conversation with Mrs Cantwell. According to her, Mrs Cantwell had said to her that she would deliver a report “sometime at her leisure”. That is the secretary's note - Mrs Cantwell denies saying that.

On 7th March Mr. Bell wrote to Mrs Cantwell, mentioning Mrs Visser's allegations. He asked for the report. There was no response to his letter.

On 18th March Mr. Bell rang again, threatening a complaint to the Physiotherapists Board if the report did not arrive by Friday, 22nd March. It did not arrive, and he made the complaint, in his letter of 27th March to the Board.

On 30th April 1996, Mrs Cantwell was served with the Board's Notice of Inquiry.

On 10th May 1996, Messrs. O'Dwyer and Bradley received a letter from her, dated 26th April, enclosing “a further copy” of the original report dated 2nd October 1995. She asked for payment of a further $270 for the provision of the report. Some misunderstanding between her and Mr. Bell as to that additional cost was resolved, and the additional fee was paid.

On 13th May, the solicitors acknowledged receipt of the report on 10th May, and also withdrew the complaint to the Board.

On 22nd May, Mrs Cantwell wrote to the solicitors, mentioning the complaint to the Board. The letter seeks to excuse her own conduct. She asks for the withdrawal of the complaint to the Board, saying: “It is not our concern that you failed to receive our original report dated 2nd October 1995.” She suggested that her time had been wasted, by the solicitors' letters and complaint. She concluded by saying, “If payment is made and you withdraw your complaint from the Board then we will not enter into any further proceedings. Both our requests must be met by close of business on Monday 27th May 1996. We look forward to your co-operation.”

The above facts suggest that the report was not actually written until May 1996. It may be that its production was prompted by service of the Notice of Inquiry from the Board. However, it is not necessary to make any definite finding about that suspicion. The essence of the complaint is that Mrs Cantwell failed to respond to the solicitors' various requests and demands, and that she failed to repay the $360.

The question of any refund of the $360 can be dismissed. The solicitors did not, in terms, ask for its return. They always sought the report which followed that assessment. Her real offence was in not making appropriate responses when the solicitors, quite rightly, showed increasing concern about their belief that they did not have a report. Even if the report had been lost in the mail, or at the solicitors' office, her conduct could not be excused. The provision of reports was an important part of her practice. It was important as the solicitors wished to make a claim on behalf of Mrs Visser. That was held up until the report was obtained. If the report did exist, the problem could have been solved by the early dispatch of a copy. That was never done.

I have no doubt that Mrs Cantwell's conduct towards the solicitors was discreditable to a physiotherapist. Her conduct was aggravated by the unfortunate tone of her letter of 22nd May, when an apology was called for.

Complaint No. 4

This is another complaint about a report:

The report was requested by letter of 16 March 1995. That was followed by two reminder letters from the solicitors. In response, Mrs Cantwell wrote on 26 July 1995 saying that Miss Taylor would be assessed on 2 August and that a comprehensive report would follow. On 11 August Mrs Cantwell sent a memorandum of fees for $625. It indicated that Miss Taylor had been assessed on 11th August, and included $310 for the provision of the comprehensive report.

On 11th October 1995 the solicitors wrote a letter asking for the report. It was followed by a similar letter on 6th October. It seems that there were no replies.

The solicitors wrote again on 16th November. Mrs Cantwell replied on 27th November, saying that the report had been forwarded to the solicitors on 14th November. However, the solicitors deny receiving any report, at any time.

On 30th November 1995, the solicitors' office spoke to Mr. Nicholas Cantwell, and he said that he would fax a copy of the report on the next day, and would also send an original in the mail. However, nothing was received.

On 7th February 1996, the solicitors wrote and asked for the return of the payment of $625. No response was received to that letter. A further request was made on 6th March. Again, there was no response. On 19th March, the solicitors complained about the matter to the Physiotherapy Board, saying at the end, “We should point out that there are several other matters in which we have paid Mrs Cantwell for reports, however, we have not received them. Complaints concerning these matters will be forwarded to you in due course.” That assertion was not contradicted.

Mrs Cantwell did not return her fee. On 8th May 1996, the solicitors commenced an action in the Magistrates Court, saying that, “The claim is for $1,325 being monies paid to (Mrs Cantwell) for medical reports collectively on or about September 20 1995, September 25 1995 and December 20 1995 which have not been provided by (her) to (us)”. It was clear that the date of September 20 1995 referred to this report.

Mrs Cantwell did not defend that claim. Judgment was entered against her. No report was ever received by the solicitors. Mrs Cantwell said that it had indeed been sent, but that it was impossible to retrieve a copy as a result of the thefts at the Hyperdome clinic. However, in this case I am satisfied that no report was ever completed.

Therefore, it is demonstrated that Mrs Cantwell was paid for a report which was never written, that she failed to respond to the solicitors' various requests about the report, and that she put herself in the position of having no defence to the solicitors' claim for the repayment of her fee. She was acting in a professional capacity. Her conduct was discreditable.

Complaints Nos. 8 and 10

It is convenient to deal with Complaints Nos. 8 and 10 together. Complaint no. 8 says that:

Complaint number 10 asserts that:

Both complaints can be dealt with shortly. Mr. Walton worked part-time, on an agreed basis, at Loganholme from 26th October to 22nd November 1995. He could not continue to go there as his car was damaged. In the following week he called Mrs Cantwell at Wickham Terrace, and returned his keys to the clinic. She was to have had the practice diary with her, so that his wages could be calculated, but she said that she had forgotten it. She said that she would arrange the transfer of the money to him. There was no transfer of the money as promised. He tried to contact Mrs Cantwell by telephone on several occasions, but she did not return his calls. He finally spoke to her before Christmas 1995. She said that she thought that Nicholas had made arrangements to pay him. She excused herself by saying that there had been a lot of staff changes. She promised to pay the money to his bank account.

He was not paid. He then had solicitors write a letter of demand on 10th January 1996. There was no response to that letter.

It is true that Mr. Walton did not know precisely how much he was entitled to. However, the amount due to him became settled at $500 during some conversations between Mrs Cantwell's solicitors and Mr. Walton, after the Board's inquiry had started. Despite that, Mr. Walton was not paid the money, and he has still been paid nothing.

Mrs Cantwell has sought to defend her conduct, by pointing to the various distressing circumstances affecting her, in late 1995. Some allowance might be made for that, but I cannot see that it could possibly extend past mid-January 1996, when the letter of demand from Mr. Walton's solicitors was received. About 13 months have passed, and he has still not been paid. He was a young physiotherapist in his first years of practice. He was in a vulnerable position. Her conduct has been discreditable “as a physiotherapist”. Unlike her conduct towards Miss Lewis, this was conduct arising out of the practice of physiotherapy, though not involving a patient. Employing staff is an aspect of practice.

Miss Ellson did not give evidence, as she is overseas. Her affidavit was admitted into evidence, by consent. She worked at the clinic for two days, following Mr. Walton's departure. Mrs Cantwell said that she would send her a cheque, but it did not arrive. They then discussed further work to be done by Miss Ellson. She asked Mrs Cantwell for an employment contract, and reminded her of the cheque which had failed to arrive. She then spoke to Nicholas Cantwell about the same matters. He said that an employment contract would be sent to her, but it did not arrive. She rang to speak to Mrs Cantwell, and then had a difficult conversation with Nicholas Cantwell. She did no further work for the clinic. She contacted the Department of Industrial Relations about her unpaid wages.

Mrs Cantwell does not contest the fact, that she owes money to Miss Walton. Her failure to pay it has also been discreditable.

Complaint No. 6

This relates to another claim for unpaid wages. The complaint says:

This complaint has been more difficult to deal with than the Walton and Ellson complaints. In substance, it is said by Mrs Cantwell that she has never owed any money to Miss Prass, and that in any case, her conduct has been justified as she has resisted the claim on genuine grounds.

Miss Prass was registered as a physiotherapist on 12th January 1995. In about April she had an interview with Mrs Cantwell and Nicholas Cantwell, and agreed to start work at Loganholme on 2nd May. She asked for, but was not given, a written contract of employment. She worked at Loganholme for nine weeks, leaving at the end of June. She was paid at the agreed rate for the first seven weeks. She has not been paid for the last two weeks, for which her expected gross wages amount to $1,225.

Many of the patients at the Loganholme clinic were receiving workers' compensation benefits. It was important to make sure that approvals were in place before they were treated, as otherwise it was likely that no payment would be made for their treatments. Where a Physiotherapy Management Plan was proposed, then Form C50, used by the Board, said in terms that, “The Board will not pay for any services which are provided without prior Board approval”. Because of the importance of such an approval, efforts were made to see that they existed. The dates of treatments, and when further approvals would be needed, were written on the front of those patients' files.

I am satisfied that both Mrs Cantwell and Nicholas Cantwell explained the importance of the approvals to Miss Prass. She had only a little experience in that area of practice before going to Loganholme. Both Mrs Cantwell and Nicholas Cantwell insist that a further term was part of her engagement - that the clinic would not be paid, and that she would not be paid, if the fees were not paid by the Workers' Compensation Board. They say that she agreed to that term.

Miss Prass denies that there was such a term of her engagement. She knew that she had to pay attention to the requirements of the Board, and she says that she worked in with the receptionists in satisfying that. She says that, if she discovered a patient who presented for treatment without a current authorisation, she would request the receptionist to telephone the Board and obtain a verbal authority. That would then be followed by the arrival of a written approval. She says that, as far as she was aware, she did not treat any patient without written or verbal authority.

The amount of her unpaid wages is $1,225. She was being paid about one third of the fees payable for each patient. On that basis, Miss Prass's unpaid work would have generated fees of about $3,500. The evidence showed some real foundation for the suggestion that the practice was indeed out of pocket because of a lack of approvals. In particular, some documents relating to a patient called Colleen Johnson were produced. They showed that she was treated on many occasions for an injury to the thoracic spine, and that she was also treated on many occasions for an injury to the cervical spine. The document showed that the thoracic treatment was approved, while the cervical was not. In particular, there is a letter from the Board dated 29th May, pointing out that payment would not be made for treatment to the cervical spine.

Miss Prass became the physiotherapist treating Miss Johnson, after she started work at the practice. She took over treatments from Mrs Cantwell. The number of unauthorised treatments is not clear, but it is said to amount to a large part of the $3,500 claimed by Mrs Cantwell to be unpaid fees. No records were produced to substantiate the suggestion that Miss Prass saw other patients whose treatment had not been approved - it was said that the theft of the Loganholme records made that impossible.

The critical issue is whether or not there was an agreement that Miss Prass would not be paid unless the practice was paid. There are a number of facts which seem to be significant:

It is demonstrated to my satisfaction that such a condition was not part of Miss Prass's employment contract. Mrs Cantwell had no reason to refuse payment of her wages, even if there were no approval for treating some of her patients.

However, that is not the end of the inquiry. It is not discreditable for an employer to have a dispute about the terms of employment with an employee. The employer may even prove to be wrong about the matter, while not engaging in discreditable conduct of any kind. For there to be discreditable conduct in this case, it must be demonstrated that Mrs Cantwell had no genuine belief in her assertions about why she would not pay Miss Prass. In reaching a view about that, I have taken into account the above matters, and also a response written by Nicholas Cantwell to Miss Prass, dated 17 August 1995. I am satisfied that Mrs Cantwell was aware of its contents. The letter refers to the alleged duty statement, to the effect that a physiotherapist who fails to obtain approval for multiple treatments cannot be paid for them in accordance with the policy of the practice. The letter goes on to say that her claim will be defended, that her disgraceful actions in the practice will be exposed to the Magistrates Court, her claim struck out and a claim for costs made against her. The letter was written in very strong tones.

In my opinion, the evidence demonstrates that not only did Mrs Cantwell wrongly assert that Miss Prass had agreed not to be paid if the practice were not paid, she also made that claim knowing it to be untrue. I am satisfied that she made the claim in an effort to avoid paying Miss Prass's wages. That was discreditable conduct. It has continued up to the present time, as the $1,225 still is not paid.

Complaint No. 9

A rather similar dispute exists in relation to Miss Shelley Boyle. The complaint says:

In this case, both Mrs Cantwell and Nicholas Cantwell spoke to Miss Boyle. Her work was to concentrate on the provision of medico/legal reports to solicitors. According to them, she agreed not to be paid for her work until the practice received its fees from the solicitors.

There is also a dispute as to the amount of money that Miss Boyle was to be paid. I accept her evidence, to the effect that she was to be paid $50 for a rehabilitation examination of an hour and an additional $100 for the rehabilitation report.

I also accept that Miss Boyle asked Nicholas Cantwell on several occasions for a contract of employment outlining the terms of her engagement. She did not receive it, even though she was told that it was “in the mail”.

The arrangement with Miss Boyle was that the money was to be paid into her Westpac savings account. When her first lot of wages were not paid, she spoke to Nicholas Cantwell, and “He told me that the payment had been made. But the money was not received at the bank”. She then tried to speak about the matter to either Mr Cantwell or his mother, but they did not return her calls.

On 22 November 1995 she went to see Mrs Cantwell and said that she was owed $1,980 gross. Mrs Cantwell agreed to pay her. Curiously, the sum of $632.40 was deposited to her bank account that day, but she does not know how it was calculated. When she learnt of the deposit, she asked Mrs Cantwell why she had not been paid for the reports. That discussion is recorded in Miss Boyle's letter of 24 November 1995. According to that letter, Mrs Cantwell assured her that the remainder would be paid that afternoon. It was not paid. Mrs Cantwell agreed that she did not raise any conditional term of employment with Miss Boyle that afternoon.

Miss Boyle gave evidence, and was cross-examined. I accept her evidence, and reject the suggestion that her payment was dependent on the receipt of monies from the solicitors. (It seems true enough that the solicitors have declined to pay all or most of the money owed for the reports. Mrs Cantwell is suing them in an attempt to recover some $4,000).

I also accept that Mrs Cantwell's refusal to pay is not based on any genuine belief that the money is not owing to Miss Boyle. Rather, it is a strategy designed to put off the payment until Mrs Cantwell receives the money from the solicitors, if she ever does. As in the case of Miss Lewis, it is an arrangement made to suit her own interests. In my opinion, her conduct has been discreditable.

Complaint No. 1

It asserts that

Mr Went attended at the Caboolture Clinic on about twelve occasions for treatment to his back. On almost every occasion he was treated with ultrasound. There was no such treatment on the first visit, when the extent of his injury was assessed by Mrs Cantwell.

It is common ground that Mrs Cantwell treated him with ultrasound on his next visit. It is also common ground that Nicholas Cantwell, who was present at the practice, though still recovering from his motor vehicle accident, also played a role in his treatment. It is the extent of that role which is in dispute.

It is clear that Mrs Cantwell began the ultrasound treatment. That is, she decided that ultrasound was appropriate, checked the equipment, applied gel to Mr Went's back, and adjusted the controls of the ultrasound machine in an appropriate way, before starting his treatment. The treatment consisted of placing the head of the ultrasound transmitter on to the gel and moving it about the affected area. The treatment also included the precaution of not leaving the head in one place for a time, as that might have caused a burning injury to the tissues below.

While Mrs Cantwell was doing that, the telephone rang. She wished to, or needed to, speak to the caller. She did so, and allowed Mr Cantwell to take charge of the ultrasound head for about five minutes. She also says that she asked Mr Went's permission to do that - he says that she told him that Nicholas would finish the ultrasound treatment and that he didn't say anything, as he assumed that it was common practice. He continued to move it about the area being treated. What is in dispute is the degree of supervision that Mrs Cantwell continued to exercise over her son. She says that the telephone was nearby in the room, and that she continued to watch what he was doing, and so supervised him. Mr Went insists that she left the room, and spoke to the caller from the room next door.

It should be kept in mind that Mr Went made no complaint about this event to the Board. He had no reason to complain - he suffered no ill effects and did not realise that there might have been some irregularity involved. It seems that the complaint was made by some other physiotherapist.

Of course, Mr Nicholas Cantwell had no experience or training in the use of ultrasound equipment. He was not approved as an assistant in any way. That which he did was contrary to the accepted practices within the profession. While a student may perform ultrasound treatment in a university clinic or at a public hospital, it is done under the immediate supervision of a teacher, and as part as a course of training. (See s. 25(2)(d) of the Act). Those provisions do not apply to treatments in a private practice. I accept Mrs Cupit's a tissue. However, it does not follow that Mrs Cantwell was responsible for what happened. Although the principal of a practice is legally responsible for the conduct of employees who act in the course of their employment, that is not to say that the principal engages in discreditable conduct because of the employee's actions. There must be some knowledge of what the employee is doing, or, perhaps, the turning of a blind eye. On the evidence in this case, there was nothing to show that Mrs Cantwell did that. Her discreditable conduct related only to the one occasion when she herself was giving the treatment to Mr Went. There is nothing to show that she knew anything about the second occasion.

Complaint No. 2

Counsel said that this was a contest between the credibility of Mr Ashton, a young student carpenter, on the one side, and Mrs Cantwell and Mr Nicholas Cantwell, on the other.

It appears that Mr Ashton attended the Loganholme Clinic on 9 April 1996. Mrs Cantwell and Nicholas Cantwell were present at the time. He was in the reception area while Mrs Cantwell was doing some paperwork, sitting in an inside office off the treatment room. It was late in the afternoon, and there was no employed physiotherapist present to conduct any treatment. Both the Cantwells recall that a candidate for a secretarial position at the clinic was being interviewed by Mr Cantwell. She had her very small children with her. Mr Cantwell recalls that she left at about 6 p.m. It was then that Mr Ashton arrived - he also recalls the children. He had hurt his back and wanted to see a physiotherapist. Mr Cantwell says that he informed him that he could make an appointment for the following day, but that no one could treat him at the time. He says that he made an appointment for him and took some basic details to open a file. That file was tendered as Exhibit 5.

Exhibit 4 records the treatment given by the physiotherapist, who saw Mr Ashton on the next day, 10 April. The file also records that an appointment was made for a week's time, on 17 April, but that Mr Ashton did not arrive in time and so missed any chance of treatment.

The issue before me was this - did Mr Nicholas Cantwell treat Mr Ashton on the afternoon of 9 April? There is nothing in the evidence to show a record of such treatment, or that Mr Ashton was charged for such treatment - indeed, the evidence is that he was charged nothing for any treatment, including the quite legitimate one given to him on 10 April. The files in evidence are, on their face, consistent with Mr Cantwell's account of things.

Mrs Cantwell told me during her evidence that her office looked on to the treatment room. That is, it would have been impossible for her son to have conducted any treatment, of which she was unaware. She insisted that he had done nothing, and that she had not seen Mr Ashton on any occasion, - that is, he did not proceed beyond the reception area while she was at the practice. Her son spoke about him, she said, and that was all.

There was no contest, either before the Board or before me, about Mr Ashton's identification of Mr Cantwell on 9 April. Indeed, Mr Cantwell's own affidavit makes it clear that he was the person who saw Mr Ashton. In most respects, the evidence of Mr Ashton and Mr Cantwell coincides - except for the critical contest, as to whether or not Mr Cantwell gave him ultrasound treatment.

I have read the affidavits, and the oral evidence which concerns this issue, both before me and before the Board. I take into account that a relatively short time passed before Mr Ashton was interviewed by representatives of the Board and then gave evidence later in 1996. He was at the clinic on only two occasions when he spoke to those there - Mr Cantwell on the first occasion, and the employed physiotherapist on the second. That is, not much time had passed and there were not a lot of visits which might have been a potential source of confusion on his part.

There was nothing in Mr Ashton's demeanour as a witness to make me think that he was unreliable. The only thing that was somewhat surprising about his evidence was his inability to remember details of how he came to be giving information to those acting on behalf of the Board. At least it is clear that he had no reason to make a complaint himself, and was contacted because of information given to the Board.

All things considered, I accept Mr Ashton's evidence. He had no interest in making a false allegation about the matter while, on the other hand, Mrs Cantwell and Nicholas Cantwell had a great interest in denying the allegations. There is also the consideration that Mr Cantwell had a hand in applying ultrasound treatment on the other occasions.

I have already discussed the nature of the ultrasound treatment. On this occasion, there was no suggestion that Mrs Cantwell supervised her son's activities. He simply gave some ultrasound treatment, and Mrs Cantwell must have known about it, as she explained herself. It is apparent from Mr Ashton's description that he was treated while lying face down on a treatment table with a nose hole at the front. It must have been in the area described by Mrs Cantwell. She must have known what happened.

It follows that her conduct on that occasion was discreditable to a physiotherapist.

Credibility

It will be apparent, especially during my consideration of the complaint by Mr Ashton, that I have rejected the evidence of both Mrs Cantwell and Mr Nicholas Cantwell. In some cases, that was because the objective evidence was firmly against the version of events put forward by Mrs Cantwell. The complaints involving the reports to the two firms of solicitors, and the question of Ms Prass's wages, are in that category. I have also taken into account that, by and large, Mrs Cantwell never recognised, even during the hearing before me, that she was at fault in any way. There was at the end a grudging recognition that she ought to have paid Mr Walton and Ms Ellson. I do not recall any recognition of her discreditable conduct with regard to the reports sought by the two firms of solicitors. On the contrary, she at all times tried to excuse her conduct by relying on the distressing personal circumstances in which she found herself after the beginning of 1995. I was influenced by her reliance on aggressive letters, written either by herself or her son Nicholas. There was also a distinct lack of candour in her evidence. I have taken all those things into account in forming a view about her credibility as a witness. Speaking generally, I am inclined not to accept what she says about any of the above events, unless her version is corroborated by some other evidence. As she became unreliable in many ways under the pressures of her burgeoning practices and personal difficulties, so she was unreliable as a witness.

Finally, it will be apparent that, while I have mentioned her difficult circumstances at the time, I have not allowed them to excuse her conduct. It must be kept in mind that she was doing a professional job. While her personal difficulties may explain why she did not do that job properly at times, they do not excuse her. It should also be kept in mind that these proceedings are not punitive, but are designed entirely for the protection of the public. Of course, that is not to say that such things should not be taken into account in considering the appropriate penalty.

Once the parties and their advisers have had a chance to consider these findings, I will hear further from counsel on the question of the appropriate penalty, and costs.

[Before Brabazon QC DCJ]

IN THE MATTER OF

THE PHYSIOTHERAPISTS ACT 1964, AND

IN THE MATTER OF

AN APPEAL BY LYNLIE MAUREEN CANTWELL

JUDGMENT

Judgment delivered: 15th May 1997

IN THE MATTER OF

THE PHYSIOTHERAPISTS ACT 1964, AND

IN THE MATTER OF

AN APPEAL BY LYNLIE MAUREEN CANTWELL

REASONS FOR JUDGMENT - JUDGE BRABAZON Q.C.

Delivered the 15th day of May 1997

On 14th March 1997 I delivered my reasons for finding that Mrs. Cantwell had been guilty of conduct discreditable to a physiotherapist on 8 occasions. The Physiotherapists Board had brought 9 complaints against her - one was not made out in this court.

At a further hearing on 21st April, I heard submissions on the validity of the Board's own proceedings, in relation to the costs of the proceedings before the Board, the costs in this court, and the appropriate penalty to be imposed upon her.

The Board's Proceedings

This was really an argument about the costs which Mrs. Cantwell was ordered to pay to the Board. Section 21(7) of the Physiotherapists Act gave the Board power to order her to pay to it by way of costs such sum of money as it thought fit. In the result, she is obliged to pay to the Board costs of about $43,000. There was no contest before me about the amount of those costs. Rather, it was submitted that she should not have to pay any costs at all, as the proceedings before the Board were conducted in breach of the established rules of procedural fairness, and were void, and of no effect.

The expression “procedural fairness” is a better term to describe what the common law has traditionally called “natural justice”. That is an expression that might cause confusion. It refers more to the due processes of the law, rather than to any idea of perfect justice. Its two basic rules are that an accused person has a right to be heard, and that the hearing should be by a decision maker whose mind is open to persuasion - that is, by a person who is free from bias. But the idea of procedural fairness covers many aspects of the Board's hearings.

A denial of natural justice is an error of law which deprives a tribunal of jurisdiction in the case, and renders any decision void. See Forbes Disciplinary Tribunals 2nd Edition, the Federation Press 1996 para. 7.2, de Smith's “Judicial Review of Administrative Action”, 4th ed. at p. 151, and Hotop, “Principles of Australian Administrative Law”, 6th ed., at p. 215. (There is debate about the exact effect of the expression “void” but it would not matter for present purposes. If there were a lack of procedural fairness in this case, then the Board's proceedings and decision would be unenforceable and ineffective.). At first, a number of defects were suggested in the Board's proceedings. At the end, two were relied upon, when it was submitted that the Board erred in refusing Mrs. Cantwell's request for an adjournment on 8th October 1996, and that two members of the Board were biased.

Bias

The question of bias can be dealt with shortly. The Board, as it was finally constituted, first sat on 1st October. The chair was Mrs. D. Jewell, and a member was Ms. E Unkles. That same Board reconvened for the substantial hearings on 8th and 9th October. The only evidence on the question of bias came from Mrs. Cantwell. Paragraph 23 of her affidavit of 14th April 1997 was not contradicted and she was not cross-examined on it. She said this:

(Walton and Boyle were actually complainants, whose wages had not been paid).

When Mrs. Jewell first sat on the Board, on 1st October, Mrs. Cantwell was represented by solicitors and by Mr. Doyle of senior counsel. Mrs. Cantwell was asked if she had any objection to Mrs. Jewell sitting as a member of the Board to conduct the inquiry. Mr. Doyle replied that she did not. Mrs. Jewell then went on to announce that Ms Unkles was a member of the Board. No objection was made to her presence.

In the following week, Mrs. Cantwell had long conferences with her solicitors. She had ample opportunity to seek advice about any question of bias. Indeed, she did discuss the position of another Board member, Mr. Chris O'Brien, with them. When the Board reconvened on 8 October, she made no objection to their presence.

Therefore, Mrs. Cantwell cannot now complain about the presence of Mrs. Jewell and Ms Unkles on the Board. She has waived any objection that she may have been able to make out. That is the established position - see the decision of the High Court in Vakauta v. Kelly (1989) 167 C.L.R. 568.

The Adjournment

Mrs. Cantwell's request for an adjournment raises more difficult issues. It is necessary to outline the procedural events which led up to the evening of Tuesday, 8th October.

The Board's Notice of Inquiry was served on 30th April 1996. It appointed 25th July as the date for the hearing. That date passed by agreement of the parties. The new date for the hearing became 19th August. Mrs. Cantwell indicated that she wished the matter to be adjourned further, and the hearing on that evening was concerned only with the question of an adjournment. Mrs. Cantwell explained to the Board that she had difficulty for a number of reasons of having her case prepared. She also explained that the continuing illness of her son Nicholas was an important consideration. Letters from his psychiatrist and urologist were before the Board. Nicholas had been involved in the administration of her practice, and was an important witness, from her point of view. He was 20 years old. He was not then in a position to give evidence. She asked for an adjournment of six weeks so that her various concerns could be dealt with. Those concerns included difficulties with the costs of her legal representation, and the fact that her son was “trying to commit suicide”, and that she had to make him her first priority.

The Board then indicated an adjournment until 1st October, at 6 p.m. It was suggested that if Nicholas was then unable to attend, his evidence should be provided in the form of an affidavit. Mrs. Cantwell thanked the Board for considering her situation at the time, and said that she was very happy to accept 1st October as the date of the hearing. She said that, should Nicholas's condition not improve, or remain the same, then she accepted that her legal counsel would attend to his evidence in the form that had just been discussed - i.e. an affidavit.

Shortly before 1st October, she retained Messrs. Allen Allen and Hemsley (the second firm to be engaged to deal with the substance of her case) and Mr. Doyle. They appeared for her on 1 October. Mr. Doyle asked for an adjournment. He explained that Mrs. Cantwell was still not in a position to defend the charges against her, and that Nicholas was incapable of giving oral evidence. He asked for an adjournment of 8 weeks.

After hearing from Mr. Bourke, counsel assisting the Board, the Board announced its decision. The chair said that the Board believed that Mrs. Cantwell had ample opportunity to engage counsel and prepare a defence and did not agree to granting an adjournment of the proceedings. However, the Board did order that the matters concerning complaints 8, 9, 10 and 11 be heard at that time, to enable her new legal representatives to prepare her case upon the other matters. It was ordered that the remaining allegations be considered on Tuesday and Wednesday, 8th and 9th October. Witnesses were then called on the other complaints, and there was cross-examination by Mr. Doyle.

On Tuesday, 8th October, the Board convened at 6 p.m. Mrs. Cantwell's solicitor appeared to advise, as a matter of courtesy, that his firm would not be appearing for her that evening. Mrs. Cantwell then appeared for herself. She asked for an adjournment. She stated that her solicitors had worked long hours with her to get ready, but that her case was not complete. She also could not afford to pay for counsel at the hearing.

Mrs. Cantwell went onto speak at length about her son's condition. Mr. Bourke then addressed the Board, submitting that the Board could not be criticised if it refused the adjournment.

The Board adjourned for a time, and then returned, saying that it had considered the submissions by both Mrs. Cantwell and Mr. Bourke regarding an adjournment, and had decided that the matter should proceed that night and the next night. The matter then did proceed, with Mrs. Cantwell appearing on her own behalf, and cross-examining the witnesses called by the Board.

That position continued on the next evening, Wednesday 9th October. Mrs. Cantwell arrived half an hour late, and apologised for that, making an explanation about some documentation, and the heavy traffic. She did not renew her application for an adjournment. She asked questions of the witnesses. At the end of their evidence, she was asked if she wished to give evidence on her own behalf, or to call witnesses. She replied, in substance, that she did not want to do so, because she was not in a position to give evidence that night. She mentioned her inability to prepare a case in time, having no legal files. She was unable to call Nicholas, and that had caused irreparable prejudice to her case. Some other witnesses could not be found. She could not afford more legal assistance. She concluded by saying:

The chair then gave her an opportunity, after some comments from Mr. Bourke, to reconsider her position. The inquiry adjourned for a short time. She then repeated the above position, and said that she did not wish to give evidence, or to lead evidence. Mr. Bourke addressed the Board at length. Mrs. Cantwell then addressed the Board, at some length.

The Board adjourned at 10 p.m. and gave its decision at 11.01 p.m. It found that the evidence of all witnesses was credible, and that all the complaints were proved. It found that Mrs. Cantwell's conduct was discreditable, in relation to each complaint. After further submissions on penalty from Mr. Bourke, and from Mrs. Cantwell, the report went on to say that her conduct in relation to Mrs. Lewis constituted dishonest behaviour. Taking into account the other matters, the Board announced that her registration would be suspended for a period of 12 months.

It is helpful to put aside for the moment the question of Nicholas's condition. It is otherwise clear that the Board's decision to proceed cannot be challenged. The time that had passed, the Board's supply of particulars and affidavits of witnesses, Mrs. Cantwell's retainer at different times of two firms of solicitors to assist her with the substance of the matter, the arrangements that were made on the evening of 19th August, all provide a sufficient foundation for that decision. If she were indeed not ready to proceed, then she had been given enough opportunity, and the Board was justified in proceeding.

I now turn to the real issue - should the Board have granted an adjournment because of Nicholas's condition? It is helpful to keep in mind the test that any court or tribunal should apply, established by the High Court of Australia the decision of Sali v. SPC Ltd. & Anor (1993) 67 A.L.J.R. 841. There, it was recognised that an Appeal Court should be slow to interfere with the discretion of a trial judge to refuse an adjournment. However, the Appeal Court will interfere if the refusal would result in a denial of justice to the applicant, and the adjournment would not have resulted in any injustice to any other party. That was said to be a proposition which had been applied by appellate courts on many occasions. Put another way - if the refusal of an adjournment would result in a serious injustice to the applicant, it should only be refused if it is the only way that justice could be done to another party in the action. In addition, it is recognised that when a court is under pressure from the list of cases before it, that may be taken into account when considering the effect of the adjournment on the resources of the court, and the competing claims of other litigants to have their cases heard.

In that case, the High Court upheld the decision of the New South Wales Court of Appeal to force an appeal on, despite the fact that it had not been prepared, as the court was persuaded that the litigant had been adopting delaying tactics, not wanting the appeal to go on at all. That decision must now be considered in the light of the High Court's recent decision is Queensland v. J.L. Holdings Pty Ltd. 1997 71 A.L.J.R. 294, where it was emphasized that the ultimate aim of a court is the attainment of justice, an aim not to be supplanted by any ideas of case management.

It is necessary to recount Mrs. Cantwell's plea about her son's condition, and its effect on herself. This is an extract of her evidence:

Mrs. Cantwell's concern about her son was supported by an affidavit from her solicitor, Mrs. Fairfull. She had spoken with Dr. Young, the psychiatrist, on the 7th and 8th October. Dr. Young told her, among other things, that:

The issue here is this - is the Board's decision to proceed supportable, as being within the proper range of a discretion to refuse the adjournment, or is it insupportable, having done an injustice to Mrs. Cantwell? The resolution of that issue is not helped by the failure of the Board to give any reasons for its decision to refuse the adjournment. It is not known what facts the Board accepted, or refused to accept, and what considerations persuaded it that an adjournment should not be granted. Did the Board accept what Mrs. Cantwell said about her son's position, and its effect on her, or did it form the opinion that she was exaggerating the difficulties she faced? We shall never know.

I have hesitated over this issue. It is at the borderline of the range of the Board's discretion. In the result, I have reached the conclusion that it has not been shown that the Board's decision was the cause of an injustice to Mrs. Cantwell. While her request for an adjournment depended upon the distressing circumstances of her son's condition, that condition has to be seen in its proper context. It was a long-standing one - Mrs. Cantwell told the Board on 19th August that her son had been in hospital the year before, and that he was “trying to commit suicide” before that hearing. Secondly, it is reasonable to think that she might have made some proper arrangements for Nicholas, in the knowledge of the approaching hearing on 8th and 9th October. Thirdly, the Board was entitled to consider that her concern, though serious, was but one of a number of concerns about her readiness to proceed - concerns which it believed did not justify a further adjournment. Finally, while a personal emergency will often demand an adjournment of court or tribunal proceedings, the events here showed that Mrs. Cantwell was capable of representing herself, cross-examining witnesses, and addressing the Board. Of course, she was limited in her capacity to do so, but she was not incapable of doing so.

In the result, it is my opinion that the proceedings before the Board were valid from the point of view of procedural fairness. The costs order against Mrs. Cantwell stands.

The District Court Proceedings

The Board was substantially successful in maintaining its complaints in this court. However, Mrs. Cantwell succeeded on two separate issues. First, she was right in requesting a hearing de novo, including the reception of fresh evidence, when the Board maintained by its counsel that this hearing should be limited to the materials before the Board. Secondly, she was successful in demonstrating that the complaint by Mrs. Lewis (complaint no. 7) was not made out.

The Board had a tactical reason in trying to limit the evidence to that received in the proceedings before the Board itself. However, upon investigation, its submissions were unsustainable. That issue took up, in effect, the first day of the hearing. Mrs. Cantwell is entitled to recover the costs of that day.

The records kept by my associate show that evidence concerning complaint no. 7 took about 2½ hours. If half an hour is allowed for counsel's addresses about that complaint, then the total is 3 hours. That is 3 hours out of the remaining 4 days of the hearing. Also, the costs of the sixth day, to consider the present matters, have to be brought into account. It was a necessary part of the hearing and the Board has been successful in resisting the attack upon its award of costs. In the result, a just order with respect to costs would be that Mrs. Cantwell should pay the costs of the Board in this court, limited to 3 days. Such an order takes into account her success on the first day, and the Board's inability to sustain complaint no. 7.

The Penalty

Mr Bourke tendered an affidavit from the chair of the Board, in an attempt to reveal the Board's reasons for the penalty it imposed. Those reasons were not expressed in its decision at the time it was given. I rejected the affidavit as being inadmissible on that basis - it was too late for the Board to give its reasons. However, the affidavit was accepted as an expression of the Board's views about the factors that this court should take into account.

The Board maintained its position, that a suspension for one year was an appropriate penalty. Ms Treston, for Mrs. Cantwell, suggested that a suspension was too severe a punishment, bearing in mind the facts as found in this court, and because Mrs. Cantwell has now been the subject of two separate disciplinary hearings, and has a heavy costs burden. Indeed, they are proper considerations. In Adamson v. Queensland Law Society Incorporated (1991) Qd.R. 498 at 508, Mr. Justice Thomas, in considering the penalty, referred to an order that a solicitor pay the costs of the Law Society. He said that, having regard to what had happened, “it would be unrealistic to regard such an order in practical terms as anything less than an immense fine”. In Beovich v. Pharmacy Board of Victoria (Mr. Justice Batt, 25th October 1994, unreported, 6080 of 1994), the judge mentioned that the pharmacist had not been the subject of an inquiry by that Board before, had been humiliated by the judgment of his peers, and that a reprimand in the strongest possible terms could have a salutary effect.

In addition to the Board's costs of some $43,000, Mrs Cantwell has had to pay, or is liable to pay, some $72,000 to her own legal advisers.

Ms Treston observed that the Board had made particular mention of its finding of dishonesty, arising out of complaint no. 7 (now not sustained); that there had been no previous complaints against Mrs. Cantwell, even though she had been a physiotherapist since 1965; that her present practice does not involve “hands on” treatment, that no injury was actually caused to any patient, and that her distressing personal circumstances were some explanation of what had happened. Most of the complaints related to the business aspects of her practice. There was no need for personal deterrence, it was submitted, as her present limited practice meant that she was unlikely to offend again. A suspension would probably mean the complete destruction of her practice. She suggested that a fine or a reprimand would be appropriate, in all the present circumstances.

On the other hand, Mr Bourke, for the Board, pointed out the seriousness of the seven complaints. In two of them, there had been the unauthorised practice of physiotherapy by Nicholas Cantwell, in using the ultra-sound equipment. There was also the deception in the medico-legal report complaint, in pretending to have written a report, and charging for it, when the report did not exist. It was pointed out that she had still not paid the staff members to whom she owed wages - a circumstance which, I have to say, I found both surprising and disappointing.

The Board's order, of 12 months suspension, was a severe penalty, but it was within the range of the Board's discretion at the time, based on the findings that it made. However, circumstances have now changed. Mrs. Cantwell has to pay more costs to the Board, she has had to pay more costs to her own legal representatives, she has been acquitted of complaint no. 7 involving Mrs. Lewis' cheque, she has been subjected to the further stress of a court hearing, she has been humiliated by the findings in this court, and she has a different sort of practice.

In addition I have now been informed by counsel that Mrs. Cantwell has paid substantially all of the outstanding wages.

Those considerations point to a suspension no longer being required, to protect the public. In considering the penalty that should be imposed, this court is in the same position as the Board. That is, the powers of this court are limited to the powers given to the Board by the Act. The orders which may be made by this court on appeal no wider than the orders which might have been made by the Board. See the decision of the Full Court of Queensland, in R v. His Honour Judge McGuire and Hanlon Homes Pty Ltd ex parte Builders Registration Board of Queensland (1986) 1 Qd.R. 61.

Mr Bourke submitted that the Board, and this court, have no power to impose conditions on an order. He submitted that there was no power to require Mrs. Cantwell to give undertakings, (in response to my suggestion that she might be asked to do so.) The Board, in any case, was not prepared to accept any undertaking from Mrs. Cantwell.

In her letter of 21 March 1997 to the Board's solicitors, Mrs. Cantwell has indicated her willingness to offer certain undertakings. For the Board's part, while it does not wish to accept an undertaking, it does suggest that the court might include an undertaking from Mrs. Cantwell that she participate in and pay the costs of the Australian Physiotherapist Association Accreditation Program.

Unfortunately, it seems clear that Mr Bourke's submission, to the effect that this court has no power to impose conditions or accept undertakings, is correct. A similar problem was considered by the High Court of Australia in Thomson Australian Holdings Pty Ltd v. Trade Practices Commission (1981) 148 C.L.R. 150. There, the Federal Court of Australia accepted undertakings in a price fixing case. However the High Court, by a majority of four to one, pointed out that the Federal Court had no power to grant an injunction restraining the conduct complained of in that case. The problem was put this way:

Therefore, the power of this court is limited to the cancellation or suspension of the right to practice, the payment of a monetary penalty, or a reprimand.

Now that the outstanding wages have been paid, the appropriate order is that Mrs. Cantwell be reprimanded because of her discreditable conduct revealed in the eight complaints against her. As I have pointed out, the cumulative effect of all the events that have now befallen her amount to a sufficient disapproval of her conduct. A suspension is no longer demanded.

Procedure

This has been the Board's first appearance in this court, I am told. This case has demonstrated the need for two things. First, the procedures adopted in disciplinary hearings need to be examined from case to case to see that they are the most expeditious, efficient and inexpensive that can be devised, and are acceptable to both parties. While the proceedings here followed a familiar pattern, and cannot be criticized, it may be possible to do things differently in other cases.

Secondly, while the law may not compel reasons for decisions, they are highly desirable. The Board should definitely be aware to that need in future cases.

Orders

Subject to any submissions by counsel, the formal orders are these: