Death of appellant - Whether appeal abates - Jurisdiction to hear application for costs when appeal abates

Medical Act 1894 (WA), s 13(8)

1 JOHNSON J: The appellant, Ameen Ahmed Bham, appealed to this court under s 13(8) of the Medical Act 1894 (WA) ("the Act") against a decision of the Medical Board ("the Board") that the appellant was guilty of improper conduct in a professional respect and that his name should be removed from the register of medical practitioners for a period of one month.

2 On 19 December 2006, the Court was advised by counsel for the appellant that the appellant died on 8 December 2006. At the time, the decision of the court had been reserved, but not yet delivered. On 9 January 2007 the Court received a letter from the respondent's solicitors, who had also been advised of the appellant's death, advising that the respondent's position was that it was desirable for reasons for decision to be published, notwithstanding the appellant's death.

3 On 12 January 2007, the Court wrote to Dr Bham's counsel concerning the respondent's desire for the appeal to continue and inviting him to provide written submissions within 14 days on whether the appeal abates on the death of the appellant. Included in the letter was the following list of authorities on the issue: R v Jefferies [1969] 1 QB 120 at 124; Sen v The Queen [1991] FCA 296; (1991) 102 ALR 71 at 73; Johnson v Lapham (1992) 6 WAR 359; Quartermaine v The Queen [2002] WASCA 345 and R v Rimon (dec) [2003] VSCA 136; (2003) 6 VR 553. A request was also made for some evidence of the death of the appellant to be provided, such as a death certificate or a statement from a person with personal knowledge of the situation. The appellant's counsel was also advised that, following receipt of submissions, the matter would be re-listed. The Court also wrote to the respondent's solicitors in similar terms.

4 On 17 January 2007, counsel for the appellant responded by letter expressing the view that "the authorities seem to indicate quite clearly that an appeal does abate on the death of the appellant" and that the appeal should be dealt with in accordance with the current legal precedent. Counsel also advised that, on the death of his client, his instructions ceased and any new instruction could only come from the executor or administrator of the estate. However, counsel indicated that he had no more knowledge about the situation than the information received from the appellant's partner in his medical practice that the appellant had died. I accept that on the death of the appellant his counsel's retainer was brought to an end: see Pool v Pool (1804) 58 LJP 67, applied in McVey v Dennis (1984) 73 FLR 45 at 47 - 48; Kalejs v Minister for Justice & Customs [2001] FCA 1769; (2001) 111 FCR 442 at 445. I understood the letter to mean that there was no basis upon which counsel could have any further involvement in the matter and that he was not in a position to provide further evidence concerning the appellant's death.

5 As a result of a telephone inquiry of counsel made by a member of the Court's staff concerning a contact address for an executor or administrator, unverified information was provided that the deceased was in a poor financial position at the time of his death. This information is consistent with information later provided by the respondent on the hearing of this application that inquiries made by the respondent's solicitors revealed that no application for a grant of probate or letters of administration had been made with respect to the appellant's estate.

6 On 7 February 2007, the respondent's solicitors wrote to the Court enclosing a copy of the extract of death certificate for the appellant that was obtained from the Registry of Births, Deaths and Marriages in New South Wales which confirmed that the appellant had died on 8 December 2006 in Sydney. The letter also contained an apology for the failure to comply with the request for submissions within 14 days and advised that the submissions would be provided later that week. On 13 February 2007 the respondent's solicitors again wrote to the Court, providing the respondent's submissions. It was apparent from the submissions that the respondent was also seeking an order as to costs. The matter was then listed on 23 March 2007 for a hearing on the issues of whether the appeal abates and whether the Court has jurisdiction to hear an application for costs.

7 In Sen v The Queen (supra), the Full Federal Court observed (at 72) that:

"[T]he question whether an appeal against conviction in a criminal matter abates upon the death of the person convicted appears to be free from Australian authority".

Having been referred to English and Canadian authorities, the Court noted that the powers of the court on an appeal are derived from and confined to those given to it by statute. The relevant legislation was construed as giving a right of appeal only to a party to the appeal and containing no provision entitling the deceased's father, executor or administrator to prosecute the appeal. On that basis, the Court held that the appeal had abated. The Court further noted that there was no suggestion that the outcome of the appeal would have any effect on the appellant's estate in any event: at 73.

8 One of the authorities considered by the Court in Sen v The Queen (supra) was the case of R v Jefferies (supra), where the widow and executrix of the deceased, who had been convicted of conspiracy and had given notice of application for leave to appeal, sought leave to continue the application. Widgery LJ, on behalf of the Court, said (at 124):

"We take it to be a general principle that whenever a party to proceedings dies, the proceedings must abate, unless his personal representatives both have an interest in the subject matter and can by virtue of the express terms of a statute (or from rules of court made by virtue of jurisdiction given by a statute) take the appropriate steps to have themselves substituted for the deceased as a party to the proceedings. Although in this case the estate would benefit if the widow were allowed to continue the appeal and were successful, there is no procedure whereby she can be substituted as an appellant and we do not see how there can be an inherent power in the court to allow this when the appeal is itself the creature of statute."

9 In Johnson v Lapham (supra), the appellant was murdered before his appeal against a conviction could be heard and determined. The appellant's adoptive father applied to be substituted as the appellant in the proceeding. The relevant legislation, the Justices Act 1902 (WA) conferred a right of appeal on the Attorney General and on "any person who is aggrieved by the decision". White J held (at 364) that the expression "person aggrieved" does not refer to the state of mind of the party, but to his legal position, and whether or not any right of his has been infringed: see Egerton v Middleton [1953] VicLawRp 32; [1953] VLR 191 at 193 per Dean J and Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 184 - 185 per Gibbs CJ. The decision in Sen v The Queen (supra) was followed and White J held (at 364) that the appeal had abated as a result of the death of the appellant and the application of the adoptive father to substitute as appellant was refused. In reaching that decision, White J referred to the qualification, also referred to in Sen v The Queen (supra), that the principle applies other than where the appeal is with respect to a criminal case where a fine was imposed: at 364. Although not relevant to the resolution of this matter, as I understand the position, the reference to the imposition of a fine is because the deceased's executor may well have an interest in the proceeding as any fine would be paid by the estate or returned to the estate, depending on the outcome of the appeal.

10 In Quartermaine v The Queen (supra), the applicant, who had been convicted after trial of a number of offences, died before the application for leave to appeal could be heard and determined. The Court of Appeal held (at [4]):

"At least in cases such as the present, where the penalties imposed were sentences of imprisonment, there appears no means by which the present applications may be pursued after the death of the applicant."

In reaching that conclusion the Court relied on the decisions in Sen v The Queen (supra), Egerton v Middleton (supra) and Johnson v Lapham (supra). The basis of the conclusion was that s 688 of the Criminal Code, which conferred the right to appeal and to seek leave to appeal in the relevant circumstances, contained no provision expressly enabling the appeal or application to be pursued by another should the appellant or applicant die before the matter was heard and determined.

11 The final authority to which the respondent was referred was R v Rimon (supra), where the Victorian Court of Appeal held that an appeal by a person convicted of an indictable offence is personal to that person and cannot be pursued by that person's executor or personal representative. Again, the reasoning behind that conclusion was that the provision which conferred the right to appeal conferred it upon "a person convicted on indictment" and there was nothing in the Rules of Court which would suggest that the right applied to a personal representative: at [4]. I note, in passing, that it was an absence in the Rules of Court of anything to suggest that the right applied to a personal representative that was referred to, rather than an absence of a power to substitute a representative for the deceased party (the second aspect of the criteria relied on in R v Jefferies (supra)). The Court referred to the decision in R v Jefferies (supra), which was accepted as being an accurate statement of the position adopted by the House of Lords in R v Kearley (No 2) [1994] 2 AC 414 at 422. The decisions in R v Harris [1994] 1 WLR 555, Sen v The Queen (supra) and Quartermaine v The Queen (supra) were also cited: at [6].

12 It is apparent, from a consideration of these authorities, that in a criminal matter an action abates on the death of the accused unless the accused's personal representatives both have an interest in the subject matter and the statute conferring the right to bring the action (or the Rules of Court made by virtue of jurisdiction given by a statute) permits the action to be pursued by another should the appellant or applicant die before the matter is heard and determined. It is the case that this principle is expressed in relation to, and in the context of, criminal cases.

13 However, the principle, with appropriate modifications, has also been applied in civil cases. In relation to civil actions, the rule at common law was that a personal action died with the person, whether that person was a possible plaintiff or a possible defendant: Woolworths Ltd v Crotty [1942] HCA 35; (1942) 66 CLR 603 at 612 per Latham CJ; NSW TAFE Commission v Fines (1993) 32 NSWLR 385 at 387. Latham CJ observed (at 613) in Woolworths Ltd v Crotty (supra), that this rule applied in the earliest days in the case of all obligations, whether arising by tort or contract: see also Finlay v Chirney (1888) 20 QBD 494 at 504.

14 However, in Williams on Executors 11th ed (1921) vol 1 at 619 it was stated that the rule of the common law "seems never to have been applied by the old authorities to causes of action on contracts". The position at common law was that the cause of action survived so that a personal representative could sue, not only for all debts due to the deceased but for all covenants and all contracts with the deceased breached in his lifetime: see Latham J in Woolworths Ltd v Crotty (supra) at 613; Williams on Executors (supra) at 619. In NSW TAFE Commission v Fines (supra), Mahoney JA observed (at 387) that a right of action for breach of contract or a right of a proprietary nature generally survived, for and against the estate of the deceased person. An action in tort was covered by the rule because an executor could not obtain any benefit for the estate "by acquiring damages which would have been given only as compensation to the living man for injury": Quirk v Thomas (1916) 1 KB 516 at 530.

15 It is the case that these principles relate to the cause of action rather than to the proceeding. They explain the basis upon which an executor or personal representative may continue a cause of action. Where a proceeding is brought by a party and the party dies, the cause of action (other than one in tort) which was to be enforced in the proceeding then passes to the deceased's personal representative in the circumstances referred to above; in general terms, that is, when pursuing the cause of action has a potential financial impact on the estate: NSW TAFE Commission v Fines (supra) per Mahoney JA at 387.

16 The next issue is whether a proceeding commenced by one party may be continued by another: NSW TAFE Commission v Fines (supra) at 389. Initially the courts imposed a strict attitude: the proceeding abated and a new proceeding had to be commenced by the legal personal representative: NSW TAFE Commission v Fines (supra) at 389 citing Chitty's Archbold's Practice, 11th ed (1862) at 1556, footnote (c); Cutfield v Coney [1799] EngR 112; (1758) 95 ER 699, Wallop v Irwin [1799] EngR 356; (1752) 95 ER 637, Taylor v Harris [1803] EngR 699; (1803) 127 ER 296; Foppoli v Public Trustee [1970] WAR 73 at 75_._ However, that strict approach was relaxed over time to the point where abatement was not necessarily a permanent effect of the death of a party to a proceeding. In Scruby v Hoggan (1954) 55 SR (NSW) 2, Roper CJ said (at 6):

"It is clear I think that the proceedings did abate on the death of the informant. Further, there is no procedure for or means of affecting a reviver of them ... But the effect of the abatement is not as has been contended for. A suit or proceeding is said to have abated when it has become defective as to parties. The effect of the abatement is that no further steps may be taken in it unless and until it is revived by an order of the court if such an order can be obtained ... but the abatement, although it suspends proceedings, does not put an end to them."

17 In Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139, Hutley JA (with whom Hope and Glass JJA agreed) expressed the principle in the following terms (at 144 - 145):

"The death of the applicant caused the proceedings to abate, in the sense that the proceedings could not continue until reconstituted by the addition of proper parties: Scruby v Hoggan (1954) 55 SR (NSW) 2 at 6. Abatement of some proceedings can be permanent in the sense that no proper party to permit the continuation of the proceedings can be found ... Once, however, it is recognized that the order obtained on the conditional application is a piece of property, the abatement resulting from the death is not of its nature permanent. The abatement may be permanent if there is no means of reconstituting the proceedings with proper parties."

18 Therefore, on these authorities, whilst the proceeding does abate, it is an interim abatement whilst it is established whether there is a proper party to continue the proceeding together with a power to substitute that party for the deceased. If those questions are answered in the negative then the abatement becomes permanent.

19 Mahoney JA observed in NSW TAFE Commission v Fines (supra) at 390 that, in matters civil, abatement has been abolished by the Supreme Court Rules 1970 (NSW). However, with respect, that is not a strictly accurate statement. Abatement was not abolished. The changes simply provided that an action survived against or for the benefit of the estate. An action could still abate if there was no personal legal representative to continue the proceeding. In Foppoli v Public Trustee (supra), Hale J noted (at 75) that the strict meaning of abatement was to put an end to an action. While not denying the cause of action, a plea of abatement, if successful, was effective to put an end to the existing action. However, Hale J observed (at 75) that it was only by virtue of statutory changes and the Rules of Court that a personal representative was allowed to be substituted as plaintiff so that an action in which a party had died could proceed to judgment. Referring to the Common Law Procedure Act and the prototype of the then relevant Rule of Court, Hale J stated that they were effective for two purposes (at 75):

"[F]irst, when there are several parties on one or both sides of the record it enables the action to proceed in spite of the death of one, provided there remain one or more effective plaintiffs or defendants; secondly, when a sole plaintiff dies it prevents the action coming to a total end, preserving it in esse to enable a new plaintiff to be substituted under [the Rule of Court]."

20 Section 4 of the Law Reform (Miscellaneous Provisions) Act 1941 (WA) abolished the common law rule and imposed conditions under which actions on surviving causes of action might be maintained. Order 18 r 7(1) of the Rules of the Supreme Court 1971 (WA) ("the Rules") provides that where a party to an action dies but the cause of action survives, the action shall not abate by reason of the death. Order 18 r 7(2) of the Rules further provides:

"Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first-mentioned party."

21 The issue has also been addressed in relation to rights arising under statute, other than criminal appeals. In Bogeta Pty Ltd v Wales (supra), an action in a Licensing Court, the Court declined to follow the dicta of the Court in R v Jefferies (supra) (at 124) which held that the proceedings must abate unless the personal representatives both have an interest in the subject matter and can by virtue of the express terms of a statute take the appropriate steps to have themselves substituted for the deceased as a party to the proceedings. Hutley JA held (at 147) that though he would not suggest that the decision was incorrect, because the limitation of the class of person who can appeal, namely, a person convicted, would itself exclude the widow from continuing the appeal, Hutley JA stated that he found the more general propositions enunciated unsatisfactory. His Honour could see no warrant in principle for the requirement that there must be express power for the personal representatives to have themselves substituted for the deceased as a party to the proceedings. His Honour said that no authority is quoted for this, and it would seem contrary to all sound principle to exclude an implied power: at 147. Hutley JA referred to the general principle that where a court is properly seized with a matter, and there is no procedure laid down which enables it to deal with the particular problem facing it, the Court should devise its own procedure. He considered this principle applied to all courts and tribunals created by statute: at 149.

22 In NSW TAFE Commission v Fines (supra), a decision in relation to an employees' appeal tribunal, Mahoney JA (at 388) acknowledged that the question whether statutory rights survive death depends upon the intention of the legislature. However, his Honour concluded that there did not appear to be any general or presumptive rules. Mahoney JA's decision to allow substitution of a legal personal representative was based on the power in the relevant legislation to determine its own procedure: at 390 - 391. Handley JA, who followed the decision in Bogeta Pty Ltd v Wales (supra), also relied on the power of the tribunal to determine procedure and concluded that the tribunal could recognise the executors as parties deriving title to the rights of the appellant and to direct that they be at liberty to continue the appeal: at 395 - 396. Handley JA also followed (at 394) the decision in Blood-Smyth v Carter [1965] NSWR 946 where it was said (at 947):

"The executor has an interest to maintain an appeal against a decision which, while it stands, operates in detriment of the estate of the deceased."

23 Although the Courts in these two cases take a different approach with respect to the requirement in R v Jefferies (supra) for an express power in the relevant statute to substitute a personal representative, it should be noted that the criteria in the other criminal cases are not expressed in precisely that way: see R v Rimon (supra) and Sen v The Queen (supra).

24 Nevertheless, it can be seen that Mahoney JA in NSW TAFE Commission v Fines (supra) acknowledged that the question whether statutory rights survive death depends upon the intention of the legislature (at 388) and Handley JA held (at 394) that the appeal, being a proceeding in aid of a transmissible right, was itself transmissible. In my view, no such description could be given to the power of the Board to consider the conduct of a medical practitioner nor of the right to appeal any decision made pursuant to that power.

25 Whether the right is transmissible is the key feature in all cases to which the Court has been referred, whatever the particular jurisdiction. In Felton v Oser (1969) 72 SR (NSW) 24, where the cause of action was divorce, the right was held to be purely personal. This case was cited in Stead v Foster, unreported; SCt of NSW; Library No 19932; 4 September 1998 , an action for defamation, in the context of the proposition that where the claim asserted by the deceased plaintiff or the liability sought to be imposed upon the deceased defendant is personal to him in the sense that it is not transmissible, then reviver of abatement is inappropriate and the suit can no longer be maintained on the death of the party: at [9].

26 In Kalejs v Minister for Justice & Customs (supra), Kenny J dealt with an application by an executrix seeking to continue proceedings for the purpose of obtaining judgment and an order for costs. There were two proceedings in question. The first was a judicial review under s 39B of the Judiciary Act 1903 (Cth) of a decision by the relevant Minister under the Extradition Act 1988 (Cth) that the applicant was the subject of an extradition request. The second proceeding was a review under s 21(1)(a) of the Extradition Act 1988 (Cth) of a Magistrate's order under s 19 that the appellant was eligible for surrender. The applicant died before judgment was given in either matter. Section 29(1) of the Administration and Probate Act 1958 (Vic) relevantly provided that upon the death of a person all causes of action subsisting against or vested in that person would survive for the benefit of his or her estate. Order 6 r 10(1) of the Federal Court Rules 1979 (Cth) provided that:

"[W]here a party dies ... but a cause of action in the proceeding survives, the proceeding shall not abate by reason of the death."

27 Kenny J considered, inter alia, whether the rights invoked by the appellant in the two actions were transmissible rights and whether the executor was a proper party to make such an application: at 446. In doing so, his Honour considered (at 447 - 448) the historical position in substantially similar terms to that outlined above before concluding (at 450) that the proper approach was that adopted by this court in Foppoli v Public Trustee (supra) and by the Full Federal Court in Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290. His Honour concluded that the right the deceased appellant sought to invoke in the two proceedings could not, as a matter of construction, survive for the benefit of his estate and, therefore, judgment could not be entered: at 450.

28 If there is indeed a point of distinction between the relevant approach in criminal and civil matters, resolution of the issue of whether an appeal may continue despite the death of the appellant is still a matter of construing the terms of the provision conferring the right of appeal to ascertain whether the right is transmissible. Further, there is no distinction of substance when it comes to an appeal from either criminal or civil proceedings. Each is a creature of statute to be construed in accordance with the statute creating the right. Therefore, the appropriate comparison is between an appeal under the Act and any other statutory appeal in either a civil or criminal matter or any statutory proceeding. Support for that proposition can be found in Stephenson v Human Rights and Equal Opportunity Commission (supra) where Wilcox J (with whom Jenkinson and Einfeld JJ agreed) made the following observations as to how to approach the issue of the death of a party exercising a statutory right (at 296 - 297):

"I do not think that common law rules are relevant to this case. Those rules were evolved by judges as necessary ancillaries to substantive common law principles, also evolved by the judges. They are meaningful only in relation to the common law actions to which they relate. Where a right of action is created by statute, guidance must be sought in the statute itself; a Parliament that creates a cause of action may ordain as it pleases in relation to the cause of action's survival on death of a party. And the same principle applies in relation to a statutory entitlement that falls short of constituting a 'cause of action', as lawyers use that term, or a statutory proceeding."

29 It is submitted on behalf of the respondent that there is nothing in the terms of the Act or its purposes which leads to the conclusion that the legislature intended that the fact of death pending determination of the appeal should remove the rights of a party to judgment on the appeal. With respect, I do not consider that to be the appropriate way to approach the issue nor does the submission correctly identify the question to be answered. On the authorities to which I have referred, the absence of any prohibition on a personal representative substituting for the appellant is not determinative of the issue. It is whether the construction allows for it. Also, whether the terms of the provision affect the rights of the other party to the appeal is not, in my view, the question to be determined.

30 The power of the Board to conduct an inquiry into the conduct of a medical practitioner and the right of a medical practitioner to appeal from any such finding of the Board is conferred by the Act. The relevant provision of the Act is s 13. Under s 13(1), the Board is entitled to hold an inquiry where it appears that the medical practitioner's conduct may be infamous or improper conduct in a professional respect. Where an adverse finding is made, a right of appeal exists under s 13(8), the relevant parts of which are these:

"s 13(8) (a) Any person who is or was registered as a medical practitioner and who is aggrieved by any decision of the Board may in accordance with Rules of Court, which the Judges of the Supreme Court are hereby authorized to make or prescribe, appeal to a Judge of the Supreme Court against such decision.

(b) Any such appeal shall be in the nature of a rehearing, and the Judge hearing the same may confirm, quash or vary the order made by the Board.

(c) The decision of the Judge shall be final and the Board shall give effect thereto according to the tenor thereof."

31 The reference in s 13(8)(a) of the Act to the "Rules of Court" is not a reference to the Rules relating to civil proceedings generally, but to rules made in relation to an appeal under the Act. At the relevant time, O 65 was the order which applied to an appeal from the Board, although it has since been repealed: O 65 r 2. Order 65 did not contain any provision permitting substitution of a personal representative where an appellant dies before the appeal is resolved. However, O 65 r 12 provided that, in so far as the ordinary practice of the Court and the Rules of Court are not inconsistent with the provisions of this Order, they shall apply to proceedings under this Order with such modifications as the circumstances require.

32 It is clear from the terms of s 13(8) that there are two criteria to be met before an appeal may be brought. The first is that the person bringing the appeal must be a "person who is or was registered as a medical practitioner" and the second is that this person must be aggrieved by the decision of the Board. As noted in Johnson v Lapham (supra) (at 364), this expression means the person's legal rights have allegedly been infringed by the Board. In my view, it is unquestionable that the right of appeal lies solely with the medical practitioner concerned.

33 Having considered the relevant provisions of the Act, the conclusion I have reached is that s 13(8) confers a statutory right of appeal on the medical practitioner which is not transmissible. The right conferred is personal to the practitioner and there is no express or implied right in the Act for any person other than the medical practitioner to appeal the Board's decision. Further, in my view, the nature and purpose of the entire process, including the appeal, is inconsistent with the practitioner's rights being exercised by any other person. I can find no basis upon which to conclude that a personal representative would have an interest in the subject matter, in circumstances where the relevant interest must be more than an interest, arising from any relationship with the deceased, in the deceased's reputation being restored. Therefore, in my view, irrespective of whether the issue is approached as one concerning a criminal or civil matter, the result would be the same: the proceeding abates on the death of the party, in this case the appellant, because the right being exercised is personal to him.

34 It is also important to note that, even if the right was transmissible, in the absence of a personal representative seeking to be substituted for the deceased, the appeal permanently abates: see Bogeta Pty Ltd v Wales (supra) at 144 - 145 and Scruby v Hoggan (supra) at 6. In this case, no person has sought to be substituted for the appellant.

35 It is conceded by the respondent that the appeal deals with issues arising from the applicant's registration as a medical practitioner, which is clearly a matter personal to him. However, it is submitted that the appeal also deals with the conduct of a professional person in his dealing with a regulatory body, with the question of whether the Board acted appropriately in determining the case and the question of whether making misleading statements to a professional tribunal can constitute professional misconduct. In my view, reference to those factors indicates that the respondent is confusing the outcome of the appeal with the appeal process. In the absence of a judgment, there is no basis upon which the conduct of the Board can be called into question; the judgment of the Board remains valid and uncriticised by any higher authority. If the Board, in its decision, held that making misleading statements to a professional body constitutes professional misconduct then the question posed must be answered in the affirmative, and that will remain the position until the issue is determined by this or another court on another matter.

36 It is also suggested that there is an educative function and public interest in a determination of the appeal despite the appellant's death. I do not accept that the public interest in this matter is sufficient to sway the exercise of a discretion in the favour of the respondent. I am not persuaded that there is a greater public interest in the Board's inquiries into complaints of misconduct by medical practitioners than in complaints of criminal conduct heard in a Magistrate's Court. I am also of the view that, in terms of setting the parameters of acceptable conduct, decisions made in relation to criminal matters are every bit as educative as decisions of the Board.

37 Despite the conclusion that this appeal cannot reasonably be distinguished from other appeals on the basis of the nature of the proceeding, based on the authorities to which I have referred, the matters upon which the respondent relies to distinguish an appeal from the Board, that is educative function and public interest, are simply not relevant criteria in determining whether the right is transmissible or whether the appeal should proceed on any other basis.

38 More importantly, however, I do not accept that there exists a discretion in these circumstances and hence those factors cannot influence the proper result. Significantly, the authorities cited by the respondent in support of the submission that a discretion exists which may be influenced by such factors as those raised by the respondent, are not cases where the party has died. Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 is a case where the party had left the jurisdiction. The application being decided was one to dismiss the appeal. Indeed, all the cases cited to me by the respondent refer to the situation where the Court was not required to determine the matter but was not prohibited from doing so either. The case of Re Her Honour Chief Judge Kennedy; Ex Parte West Australian Newspapers Limited [2006] WASCA 172 was a case concerning an appeal from an order suppressing evidence where the orders had been discharged before the appeal was heard. The case of Veloudos v Young [1981] FCA 217; (1981) 56 FLR 182 was an action on a lease where the subject matter of the appeal was withdrawn before the hearing of the appeal. In each of these cases there was a clear discretion whether to continue with the action for the simple reason that they did not fall within the category of cases where an action of that type abates: that is, a case where a party has died.

39 Neither does there seem to me to be any relevance to the stage to which the action has progressed in determining the outcome. That is not a factor referred to in the authorities and I can see no logical reason why it should affect the decision other than in the obvious situation where, if a matter has not been argued, it cannot be determined: see Kalejs v Minister for Justice & Customs (supra) where the fact that the decision had been reserved but not delivered was not dealt with as a relevant factor in reaching the conclusion that the statutory appeals abated on the applicant's death.

40 In circumstances where I consider the nature of the proceedings to be personal to the medical practitioner and not transmissible, and in the absence of a person seeking to be substituted for the appellant, in my view, the result is that the appeal abates.

41 In those circumstances, the threshold issue before any award of costs may even be contemplated is whether I am entitled to hear an application for costs. The fact that it was that issue and not an actual application for costs which was being heard was made plain to counsel for the respondent at the commencement of the hearing.

42 Counsel for the respondent submitted that there is authority for the proposition that a Court may make an order as to costs of proceedings notwithstanding that it is brought to an end by settlement or some other extra-curial action rather than a judicial decision on the merits: see Kalejs v Minister for Justice & Customs (supra) at 450. I accept that is so, although in cases other than these where the proceeding abates as a result of the death of a party. However, counsel for the respondent maintained that there will be circumstances in which a Court will have power to deal with issues of costs notwithstanding the death of a party and the abatement of an action. That statement was made by Kenny J in Kalejs v Minister for Justice & Customs (supra) (at 451), referring to the decision of Mahoney JA in NSW TAFE Commission v Fines (supra) at 387. Mahoney JA, made the statement that if, before decision, the right sought to be enforced by the proceeding has ceased to exist, then ordinarily the proceeding cannot be continued, at least as far as concerns the enforcement of the right. His Honour then added (at 387):

"The position in relation to incidental matters such as costs may require particular consideration: as to the early position in Chancery: see Daniell's Chancery Practice, 2nd ed (1845) vol 2 at 1409 et seq."

43 I note that Kenny J uses the expression "deal with issues of costs" rather than "making an award of costs". I mention this because one of the issues of costs which I believe could be dealt with was further orders in relation to an award of costs already made in the course of the proceeding. Indeed, Kenny J gives just such an example. After considering various authorities, most of which were distinguished on the facts, Kenny J concluded (at 452):

"Where the subject of the proceeding is a non-transmissible right and a claimant dies before the court has made a decision on the merits, or before any award of costs in favour of one party or other has been made, then, so it seems to me, the court is not only precluded from delivering judgment on the merits but also from making an order as to costs. If there is no-one who can properly be substituted for the deceased claimant since the rights that he sought to pursue are non-transmissible, then, there is no-one who is capable of reviving the action in order that an application for costs might be made. Put another way, in the circumstance, a deceased's personal representative has no legal interest in the proceeding and, therefore, no right to apply for a costs order in his favour. Alternatively, it is sometimes said that the courts will not permit an action to be revived for the sole purpose of an application for costs."

44 The case of Stead v Foster (supra) involved the death of the plaintiff in an action for defamation, a cause of action commonly held to be an action personal to the particular plaintiff. The defendant sought costs against the plaintiff's estate. Levine J referred (at [16]) to the general proposition set out in Daniell's Chancery Practice (at 1409 - 1410) that Courts will not permit a suit to be revived for the purpose of deciding the question of costs only against personal representatives. His Honour then held that (at [20]):

"In my judgment, the abatement of the proceedings in circumstances where they cannot be revived deprives the Court of jurisdiction to entertain an application for costs as made by the first defendant purportedly in the abated action or by fresh originated process."

45 These decisions are consistent with what I consider to be the logical extension of the primary finding that the appeal abates in the circumstances of the appellant's death. If the appeal abates, in the absence of some statutory right to revive the action for consideration of costs, it must abate for all purposes.

46 On behalf of the respondent, it was submitted that the appellant did not conduct the proceedings reasonably. Reference is made to the fact that the appellant obtained a stay from this Court in circumstances where the Judge clearly indicated that the appeal should be brought to a hearing as quickly as possible. Orders were made to effect that purpose but, the respondent alleges, were not complied with expeditiously by the appellant, thereby requiring an extension of the stay of proceedings and creating certain difficulties for the respondent in dealing with the appeal. On that basis, the respondent seeks an order for the appellant's personal representative to pay its costs even if this Court determines that the proceedings have abated.

47 I accept that the matters raised by the respondent would be relevant to the exercise of the discretion to award costs. The difficulty, once again, is that, on the authorities, I consider I have no discretion. That is because the Court lacks the jurisdiction to even entertain an application for costs because the appeal has abated and no power exists to revive it for the purpose of making an award of costs, or for any other purpose. Counsel for the respondent was unable to alert me to any authority involving a proceeding where judgment was pending when a party died, where such an order was made.

48 Consequently, I consider that the only appropriate order that I am empowered to make is that the appeal, having abated, be dismissed.