Appeal and New Trial - Appeal - General principles - Right of appeal - Nature of right - Appeals in the strict sense and appeals by way of rehearing - Appeals by way of rehearing - When rehearing does not involve hearing de novo - Nature of appeal from Medical Complaints Tribunal - Power to receive additional evidence.

Medical Practitioners Registration Act 1996 (Tas), ss61, 62.

In re Medical Act 1959 [1973] Tas SR 43; A v Law Society of Tasmania [2001] TASSC 55; (2001) 10 Tas R 152, referred to.

Appeal and New Trial - Appeal - General principles - Admission of fresh evidence - In general - What evidence would ground successful appeal - Appeal from statutory disciplinary tribunal.

Medical Practitioners Registration Act 1996 (Tas), ss61, 62.

Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435, followed.

Gallagher v R [1986] HCA 26; (1986) 160 CLR 392; Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259, distinguished.

Professions and Trades - Medical and related professions - Medical practitioners - Discipline and removal from and restoration to Register - Procedure, evidence and appeal - Tasmania - Appeal to Supreme Court - Nature of appeal - Further evidence.

Medical Practitioners Registration Act 1996 (Tas), ss61, 62.

In re Medical Act 1959 [1973] Tas SR 43; A v Law Society of Tasmania [2001] TASSC 55; (2001) 10 Tas R 152, referred to.

Judgment Number: [2003] TASSC 139

NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL (No 2)

1 The appellant is aggrieved by a decision of the respondent tribunal which made findings of professional misconduct against him, and made orders that his name be removed from the Register of Medical Practitioners, that he be fined $4,000, and that he pay costs. The Tribunal found proven allegations of sexual assaults upon a female patient whom he had treated using hypnotherapy as a general practitioner. The appellant contends that the Tribunal erred in making its findings of professional misconduct; that the allegations of professional misconduct ought to be reconsidered because of fresh evidence relevant to the patient's credibility; and that the penalties imposed by the Tribunal were manifestly excessive. The appeal is part heard. I heard argument on 2 and 3 December as to whether I was able to receive evidence that was not before the Tribunal. On 3 December I ruled that I could. The affidavits of five witnesses were read. Four of them were cross-examined. I then heard argument as to whether, in the light of that evidence, which related to the patient's credibility, there should be a reconsideration or re-determination of the allegations of professional misconduct that were before the Tribunal, with each party having an opportunity to call witnesses who gave evidence before the Tribunal. On 8 December I held that the fresh evidence that I received did not warrant taking such a course. These are my reasons for my rulings of 3 December and 8 December.

2 The orders of the Tribunal were made pursuant to the Medical Practitioners Registration Act 1996 ("the Act"), s52. There are provisions as to appeals from such decisions in the Act, ss61 and 62, which read as follows:

"61 - (1) A person may appeal to the Supreme Court against any of the following:

(h) a decision of the Tribunal under section 52.

62 - At the hearing of an appeal, the Supreme Court may -

(a) confirm the decision of the Council or Tribunal; or

(b) set aside the decision of the Council or Tribunal; or

(c) set aside the decision of the Council or Tribunal and substitute such other decision as the Council or Tribunal has jurisdiction to take as the court specifies."

3 The Act is silent as to the nature of an appeal under s61. The nature of an appeal depends upon the terms of the statute that confers the right of appeal. Usually an appeal is one of the following three types:

(a) an appeal in the strict sense, in which case the appeal court is limited to considering whether the court or tribunal at first instance made an error, and may only consider the material that was before that court or tribunal;

(b) an appeal by way of rehearing, in which case the appeal court re-determines the issues raised upon the hearing of the appeal as at the date of the rehearing, relying upon the material that was before the court or tribunal appealed from, subject to the exercise of any power to receive additional evidence; or

(c) an appeal by way of hearing de novo (sometimes called rehearing de novo), which involves a fresh hearing and determination of the matter, unfettered by the proceedings in the court or tribunal appealed from.

In this case the parties agreed that an appeal under s61 is an appeal of type (b) - one by way of rehearing - but they disagreed as to whether this Court has a power to receive evidence that was not before the Tribunal. In order to determine whether the Court has such a power, it is necessary first to consider the legislative provisions relating to the Court's powers in relation to appeals from statutory tribunals.

4 The Supreme Court Civil Procedure Act 1932, s6(3), is a general provision as to how this Court is to exercise any statutory jurisdiction, original or appellate. It reads as follows:

"(3) Any jurisdiction, whether original or appellate, which is conferred on or vested in the Court, or any one or more of the judges thereof sitting in court or chambers, or elsewhere when acting as judges, or a judge by, under, or by virtue of any statute passed after the commencement of this Act, shall (except as otherwise provided by any such statute) be exercised (so far as regards procedure and practice) in the manner provided by this Act and the Rules of Court; or if no provision, or no appropriate provision, as to the exercise of any such jurisdiction is contained in this Act or in the Rules of Court, then such jurisdiction shall be exercised in such form, mode, and manner as the Court or a judge may direct."

5 The Supreme Court Rules 2000, rr701 - 711, apply to appeals from statutory tribunals. None of those rules states or indicates whether such an appeal should be treated as an appeal in the strict sense, an appeal by way of rehearing, or an appeal by way of hearing de novo . However, r704 makes rr689 - 694 applicable as if the tribunal appealed from were an inferior court, its proceedings were a trial, and its determination were a judgment. Rule 689 requires the Registrar, upon the filing of a notice of appeal, to obtain from the inferior court any pleadings, a transcript or the judge's notes, and any affidavit or documentary evidence filed in the inferior court. Rule 693 contains the following provisions:

"693 - (1) The Court or a judge hearing an appeal has all the powers conferred on the Full Court by rule 672.

(2) If any document required to be delivered under rule 689 has not been delivered, the Court or a judge may -

(a) require a party to supply a copy of any affidavit or other documentary evidence filed in the inferior court; or

(b) order a witness examined at the trial in the inferior court to be produced and examined on the hearing of the appeal.

(3) The Court or judge has the power to draw any inference of fact that might have been drawn by the inferior court.

(4) Any new trial ordered by the Court or judge may be ordered to be heard before a judge of the Court or in the inferior court.

(6) An appeal is not to succeed merely on the ground of misdirection or the improper reception or rejection of evidence unless some substantial wrong or miscarriage has been occasioned by the misdirection, reception or rejection.

(7) The Court or judge may make any order with respect to an appeal from an inferior court which may be just for the purpose of ensuring the determination of the merits of the real question in controversy between the parties.

(8) Subject to section 47(1) of the Act, the Court or judge, on hearing an appeal from an inferior court, may -

(a) give or make any judgment the Court or judge considers should have been given or made by the inferior court; and

(b) set aside, reverse, alter or vary any judgment given or made by the inferior court; and

(c) make any other order the Court or judge considers appropriate."

6 It is common ground that these provisions compel the conclusion that an appeal pursuant to s61 is an appeal by way of rehearing. There is no provision in the Act, the Supreme Court Civil Procedure Act, or the Supreme Court Rules that expressly empowers the Court to receive additional evidence upon the hearing of an appeal of this nature. Differing views have been expressed by judges of this Court as to the existence of a power to receive additional evidence upon the hearing of similar statutory appeals.

7 In re Medical Act 1959 [1973] Tas SR 43 concerned the nature of an appeal pursuant to the predecessor of s61. Neasey J held that an appeal under the Medical Act 1959, s26, was an appeal by way of rehearing "in the old technical sense". At 54 he made the following comments:

"... since it is in my opinion a rehearing it follows that evidence at least of any relevant changes which occur between the date of the Council's hearing and the date of the appeal would be receivable in the judge's discretion. It may be also that other fresh evidence is receivable in the judge's discretion, but it is not necessary in this case to express a decided view on these points."

8 His Honour went on to explain that, upon the passing of the Judicature Act 1873 (Eng) and the creation of the English Court of Appeal, the form of appeal adopted as the remedy available in the new court was that previously available in the Court of Chancery. That sort of appeal was subsequently adopted as the remedy available in Australian appellate courts: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 108 - 109.

9 In A v Law Society of Tasmania [2001] TASSC 55; (2001) 10 Tas R 152 at 158, Underwood J referred to the comments of Neasey J quoted above, and said the following:

"However, with great respect to his Honour's opinion, the position is not, I think, perhaps as clear as that. Whether or not the Court of Chancery received evidence upon the hearing of an appeal appears to have depended upon the nature of the appeal. Appeals were instituted by petition or motion. According to Daniell's Chancery Practice (1867) 4th ed at 1367, 'Upon a rehearing it is not, in general, competent to either party to enter into any new evidence, but evidence taken before the original hearing, though not made use of may be read;'. In Whitworth v Whyddon [1850] EngR 113; (1850) 2 Mac & G 52: 42 ER 21, the Lord Chancellor ruled at 56:22, that evidence could only be received if the matter were treated as a motion on new grounds. He said:

'If, however, it is to be treated strictly as an appeal motion, the case must be dealt with on the evidence used before the Vice-Chancellor.'

I am far from convinced that, absent statutory authorisation, evidence may be adduced upon an appeal by way of rehearing other than one that is a rehearing de novo. However, the question does not arise upon this appeal as neither side sought to adduce any material in addition to that which was before the Tribunal. Accordingly, I am obliged to consider the correctness of the orders which are the subject matter of the appeal as at this date but on the material before the Tribunal."

10 An excursion into the authorities concerning the practice of the Court of Chancery in relation to appeals before 1873 reveals a number of examples of situations in which additional evidence was received upon the hearing of an appeal. The report of Wright v Pilling (1718) Prec Ch 494, 24 ER 221, concludes with the following (at Prec Ch 496, ER 222):

"And in this case one question was, Whether on the appeal the party might be admitted to read to anything which he had not before proved on the first hearing? And my Lord Chancellor was of opinion he might, for that, as he said, it was to be inrolled as his decree, and the appeal was only to give him an opportunity of hearing what could be offered why he should not inroll it as his decree; and therefore the cause was entirely open, and the party at liberty to offer what he could against his signing and inrolling the decree."

11 In Whitworth v Whyddon [1850] EngR 113; (1850) 2 Mac & G 52: 42 ER 21, after the passage quoted by Underwood J in A v Law Society of Tasmania (supra), the reporter added the following (at 56, 22):

"After some discussion, the affidavit was permitted to be read, in order to avoid the case being again brought before the Lord Chancellor by way of appeal from any order which the Vice-Chancellor might make on having the motion renewed before him on the new evidence."

12 The following appears in Daniell's Chancery Practice 4th ed (1867) at 1368:

"Where the plaintiffs had, through the inadvertence of counsel, omitted to prove a will of real estate, in consequence of which the bill was dismissed at the original hearing, they were allowed to prove the will at the rehearing, which was postponed on the terms of their paying the costs of the application, and the costs of the day on the original hearing : in that case, however, the will was not disputed in the cause, and the omission arose wholly from the inadvertence of counsel; and in other cases, new evidence has been allowed to be read de bene esse.

It seems, that if, after the hearing, a witness has been convicted of perjury, the circumstances may be brought before the Court upon a rehearing. So also, where a witness, in an answer to a bill exhibited against him since the original hearing, had confessed, that, on the day he was examined, he took a bond from the plaintiff, whereby the plaintiff bound himself, that, if he recovered the estate in question, he would convey part of it to the witness, the answer was allowed to be read at the rehearing to take off the effect of the witness's evidence."

13 In Re the Neath Harbour Smelting and Rolling Works (1885) 2 TLR 94, a case in the new Court of Appeal, some comments of Lord Halsbury LC, with whom Bowen and Fry LJJ concurred, are reported as follows:

"The grounds on which the discretion of the Court to admit fresh evidence might be exercised were so various that it would be impossible to give any precise definition of how, when, and why it would be exercised. Each case must necessarily depend upon its own special circumstances."

14 I think it is clear that, although the Court of Chancery generally did not receive additional evidence upon the hearing of appeals prior to the Judicature Act, there were situations in which it did so. I think it must follow that, on an appeal by way of rehearing in the old technical sense, evidence that was not before the court or tribunal appealed from can and should be received in appropriate situations. Some examples readily spring to mind. It is not uncommon for Australian appellate courts to receive evidence when it is contended that a new trial is warranted because of the discovery of credible fresh evidence that could not, with reasonable diligence, have been discovered before or during a trial. Courts of criminal appeal often receive evidence when a new trial is sought on the ground that a miscarriage of justice resulted from defence counsel's incompetence or blundering. An appeal based on the wrongful rejection of evidence will sometimes require the receipt of the evidence said to have been wrongly rejected. Those are all situations in which a power to receive additional evidence is essential in order for an appeal court to be able to adjudicate upon grounds of appeal that are frequently encountered.

15 When Parliament enacted ss61 and 62, it conferred a right of appeal in general terms. There is no reason to think that Parliament intended the grounds upon which appeals could be instituted under s61 to be limited to those that could succeed without the Court receiving additional evidence. I think an appeal based on fresh evidence should be taken to be within the scope of ss61 and 62, that it necessarily follows that the Court must have the power to receive evidence upon the hearing of such an appeal, and that that result is consistent with the appeal being one by way of rehearing in the old technical sense.

16 The findings of the Tribunal depended substantially on its assessments of the credibility of the patient and of the appellant, who denied all the allegations of misconduct. Although other witnesses gave evidence before the Tribunal, no-one else was present when any professional misconduct was alleged to have occurred. Although the civil standard of proof on the balance of probabilities was applicable, the Tribunal was obliged to reach a state of reasonable satisfaction and to be conscious, when determining whether that stage had been reached, of the seriousness of the allegations made and the gravity of the consequences which might flow from particular findings and conclusions: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362.

17 The Tribunal conducted a public hearing on 9 and 10 December 2002 and 12 February 2003. There were media reports of the allegations against the appellant, but the patient's identity was not revealed. On 14 January 2003, one of the patient's sisters telephoned the Secretary to the Tribunal, unsuccessfully sought confirmation that her sister was the complainant to whom the proceedings related, volunteered information to the effect that her sister (the patient) was a liar, and asked for the name of the appellant's legal adviser. The Secretary took legal advice, and thereafter declined to furnish the legal adviser's name to the patient's sister, who decided to wait to see what happened. The Tribunal made its findings and struck the appellant off on 16 May 2003, as a result of which there was media publicity in which Mr Forrest QC was named as the appellant's counsel. The patient's sister contacted him. As a result of subsequent investigations, affidavits about the patient were sworn by two of the patient's sisters, including the one I have referred to, the patient's mother, and the patient's former husband. The Secretary to the Tribunal swore an affidavit as to the events on 14 January 2003.

18 The courts have developed a body of case law as to what an appellant will need to establish in order for a new trial to be ordered as a result of the discovery of fresh evidence. I think it is appropriate for the established case law relating to appeals from courts on the ground of fresh evidence to be applied in relation to appeals from statutory tribunals. Counsel for both parties made their submissions on the basis that the case law I have referred to would be applied. I note that Mason and Deane JJ said the following in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 519:

"One very significant strand in the development of the law has been the judicial transformation of discretionary remedies into remedies which are granted or refused according to well-settled principles ... It has been a development which has promoted consistency in decision-making and diminished the risks of arbitrary and capricious adjudication."

19 Mr Forrest QC submitted that the evidence of the patient's sisters, mother and former husband satisfied the well-settled requirements as to fresh evidence in that (a) it is potentially credible; (b) it was not available to the appellant or his legal advisers before the Tribunal made its decision; (c) it was evidence which the appellant and his legal advisers could not reasonably have been expected to obtain with the exercise of due diligence before the Tribunal made its decision; and (d) it would have made a different result in the Tribunal proceedings so likely that the matters before the Tribunal should be reconsidered or re-determined. (There is a complication that the Court has been given no power to remit matters to the Tribunal, and might therefore have to undertake any such reconsideration or re-determination itself.)

20 I am satisfied as to the first three of Mr Forrest QC's four contentions. There was nothing inherently unbelievable in the evidence of any of the new witnesses. Apart from some small inconsistencies, those who were cross-examined were substantially unshaken. Their evidence was capable of belief. I am of course not in a position to say how much of their evidence might be contradicted by the patient, nor whether I might prefer the evidence of the patient as to any or all matters of controversy. There is no reason to think that any of the evidence of the new witnesses was available to the appellant or any of his legal advisers until after the patient's sister contacted Mr Forrest QC. The need to exercise due diligence in relation to the Tribunal proceedings certainly did not require the appellant or his solicitors to make enquiries of the patient's relatives or former husband on the off chance that one or more of them might impart information that could be destructive of her credibility.

21 That brings me to the question whether the fresh evidence, if available before the Tribunal's decision, might have made such a difference to the outcome that a reconsideration or re-determination of the matter is now appropriate. Australian appellate courts are much more ready to order new trials on the ground of fresh evidence in criminal matters than they are in civil matters. Different tests are applied. In criminal matters, "the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial": Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259 per Mason CJ at 273; Gallagher v R [1986] HCA 26; (1986) 160 CLR 392 at 399, 402, 421. See also the comments of Toohey and Gaudron JJ in Mickelberg (supra) at 301, cf Brennan J at 275. The position in civil cases is as stated by Dixon CJ, with whom Williams, Webb, Kitto and Taylor JJ agreed, in Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435 at 444 - 445:

"It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. ...

In Orr v Holmes (1948) 76 CLR, at pp 640-642 there are collected a number of different expressions which have been judicially used at various times. Their result is then summed up in these words: - 'No doubt some of the foregoing expressions are susceptible of a weaker application than others of them. But the evident purpose of all of them is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable' (1948) 76 CLR, at p 642."

22 It seems to me that the greater readiness of courts of criminal appeal to order new trials on the ground of fresh evidence has its genesis in the legislative provisions whereby such courts are required to allow appeals when they are of the opinion that there has been a miscarriage of justice. Most Australian jurisdictions have such provisions, modelled on the Criminal Appeal Act 1907 (UK), s4(1). In Gallagher, the applicable provision was the Criminal Appeal Act 1912 (NSW), s6(1). In Mickelberg (supra) it was the Criminal Code (WA), s689(1). In Tasmania, it is the Criminal Code, s402(1), which reads as follows:

"402 (1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgement or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."

A miscarriage of justice is considered to have occurred when an accused person has been convicted of a crime and there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial. However, appellate courts exercising jurisdiction in relation to civil matters are under no such statutory obligation, and have traditionally given greater weight to the desirability of finalising litigation. The reasons for the two different approaches were explained by Jordan CJ, delivering the judgment of the New South Wales Court of Criminal Appeal, in R v McDermott (No 1) (1947) 47 SR(NSW) 379 at 381 - 382 as follows:

"A civil court deals with cases in which a dispute concerning civil rights is thrashed out by contesting parties, ordinarily with legal assistance. The function of the Court is ... to see that the contest is carried on with due decorum and in proper legal form - and then to decide, or assist in deciding, the matter in dispute. When once a decision has been given, it is of the highest importance that it should not be disturbed except for some reason of great weight. 'No element in the administration of justice is so destructive of its efficiency as uncertainty; and no grievance more sorely felt by suitors than that which snatches success away at the moment of its accomplishment, and sets all abroad and in doubt again after one complete hearing and decision. Nothing shakes so much that confidence in the law which it is the first duty of all tribunals to uphold': Scott v Scott (1863) 3 Sw & Tr 319 at 322. ... 'It has never been the habit in Westminster Hall to grant new trials on the simple ground that the party could make the same case stronger by corroborating testimony (even though newly discovered) if another trial were allowed. And if it were otherwise, there are few cases that would not be tried a second time': Scott v Scott (1863) 3 Sw & Tr 319 at 326.

In criminal matters, where the life or liberty of the subject is at stake, the position is somewhat different. By virtue of s 6 of the Criminal Appeal Act of 1912, the duty of the Court on any appeal against a conviction is to allow it if of opinion that there was a miscarriage of justice, and in any other case to dismiss it. Criminal justice is based on the fundamental principle that no one shall be convicted of a criminal offence unless the tribunal is not only satisfied, but satisfied beyond all reasonable doubt, that he is guilty."

23 Mr Forrest QC submitted that I should apply the test applied in criminal appeals. He emphasised that the Tribunal proceedings were disciplinary proceedings, referred to the punitive nature of the Tribunal's orders, and referred to the effect of Briginshaw in relation to the standard of proof. Mr Jackson submitted that I should follow Wollongong Corporation v Cowan since proceedings in the Tribunal are civil proceedings.

24 I have been unable to find any reported case as to whether the Gallagher test or the Wollongong Corporation v Cowan test should be applied upon an appeal from a disciplinary tribunal on the ground of fresh evidence. Mr Forrest QC submitted that the existence of different tests resulted from the different standards of proof in criminal and civil matters. I took him to suggest that the requirements referred to in Briginshaw took the onus of proof in disciplinary proceedings so close to the criminal standard of proof that the Gallagher test should be adopted. However, I do not think that Briginshaw leads to such a result. That was a case about adultery. The legal, financial and social consequences of a finding of adultery in the days of fault-based divorce were extremely serious, much as the legal, financial and social consequences of a finding of a sexual assault by a doctor upon a patient can be today. However, appellate courts continued to apply the stricter civil test in fresh evidence cases concerning adultery in the decades between Briginshaw and the commencement of the Family Law Act 1975 (Cth): Boyd v Boyd [1940] St R Qd 331 at 339 - 340; Hunt v Hunt [1957] QWN 24; Orchard v Orchard (1972) 19 FLR 176. The only case I have found in which a new trial of an adultery case was ordered because of fresh evidence impeaching the credibility of a witness is Stiffler v Stiffler [1944] St R Qd 81. In that case a private detective had given evidence that he kept watch on the allegedly adulterous couple at particular times and places on three nights. A jury found that they had committed adultery on those nights. The fresh evidence came to light when the private detective gave evidence in another divorce case that he had been watching another couple at a very different location on one of the nights in question at exactly the same time that he had originally claimed to have been watching the first couple. A new trial was ordered, but that case fell squarely within the scope of the test subsequently formulated by Dixon CJ in Wollongong Corporation v Cowan.

25 The proceedings before the Tribunal were not proceedings in which the appellant's life or liberty were at risk. The "significant possibility" test referred to in Gallagher and Mickelberg does not appear ever to have been applied in cases other than criminal cases. Since disciplinary proceedings are a species of civil proceedings, I would be acting contrary to well-established principles if I were to apply that test in this case. I therefore accept Mr Jackson's submission that the Wollongong Corporation v Cowan test must be applied in these proceedings. But although that test must be applied, it does not follow that Briginshaw is of no significance. In deciding whether the fresh evidence would have produced an opposite result in the Tribunal proceedings, or that an opposite result must have been so highly likely as to make it unreasonable to suppose to the contrary, it is necessary to bear in mind that the result in the Tribunal proceedings depended primarily upon the Tribunal's assessments as to the credibility of both the patient and the appellant, and that it was obliged to be conscious of the seriousness of the allegations made and the gravity of the consequences which might flow from finding them proven.

26 In order to evaluate the likely impact of the fresh evidence, it is necessary to consider the reasons that the Tribunal accepted the evidence of the patient and rejected the evidence of the appellant, and then to consider the nature and likely impact of the fresh evidence. The Tribunal's conclusions as to the credibility of the patient can be summarised as follows:

(a) The Tribunal observed and analysed the patient's demeanour whilst she was in the witness box, and concluded that she was a most impressive witness.

(b) The Tribunal took into account that, whilst there was evidence of troubling psychiatric and/or psychological symptoms going back over a number of years, there was no evidence that the patient suffered from a psychiatric illness or disorder of which the fabrication or false imagination of events was a manifestation, nor that she had ever suffered from such an illness or disorder.

(c) The Tribunal analysed evidence as to the patient hearing voices, but was satisfied that she was only ever referring to events that had occurred in her past.

(d) The appellant noted in his records that the patient experienced flashbacks in which her mother had an axe handle, her father urinated over her, and her sister was cutting up her clothes. The patient gave evidence that her mother had never attacked her with an axe handle, that her father had never urinated on her, that her sister had never cut her clothes up, and that she had not told the appellant of any such events or flashbacks. The Tribunal accepted her evidence, and expressed the view that it was more probable that the appellant's note was in error. It referred to some relatively minor errors in his notes.

(e) The patient gave evidence that she had no recollection of the appellant having physically examined her on a number of occasions. The Tribunal accepted that he had done so, but did not regard the patient's failure to remember such details as destructive of her credibility.

(f) The Tribunal considered the patient's evidence as to why she continued to attend hypnotherapy sessions with the appellant after having been sexually assaulted at the first one. She attended nine further sessions over several months. The Tribunal accepted her explanations that she had great trust in the appellant, that she believed that hypnotherapy would provide a cure where her medication had failed, and that she was driven to endure his conduct because she wanted so much to become well.

(g) The Tribunal considered the reasons given by the patient for delaying the making of a complaint. Her explanations centred on embarrassment, not wanting her husband to know what had been occurring, fear of disbelief, and lack of courage. The Tribunal took the view that her explanations were understandable and inherently probable.

27 The Tribunals' conclusions in relation to the credibility of the appellant can be summarised as follows:

(a) The Tribunal was "unimpressed by his demeanour as a witness" after making all due allowance for the difficult situation in which he would find himself if innocent.

(b) The Tribunal was "particularly unimpressed" with evidence of the appellant as to him asking the patient to look at herself in a mirror in his room after she had emerged from hypnosis.

(c) The patient alleged that the appellant had required her, while under hypnosis, to touch herself inappropriately and unnecessarily on her face, breasts, and other parts of her body. He denied that. The Tribunal gained the impression from his demeanour and his answers that he was less than truthful in relation to that denial. He claimed that he would probably have said that she was an attractive lady, that he would have said that she was good looking and asked why she did not like herself, and that he would have said she was all right and that there was nothing wrong with her.

(d) The Tribunal was "similarly unimpressed" by evidence of the appellant about giving the patient his Melbourne address and telephone number after deciding to leave Tasmania. Under cross-examination, he agreed that he had given the patient his Melbourne address and telephone number, but initially claimed that he had done that for all of his patients, and that he had told all of them that they could ring him. Upon the Chairman of the Tribunal observing that he could not have provided those details to literally all of his patients, he resiled considerably from his original position, and said that he left instructions at the desk to be given to patients who enquired for them.

28 The significant parts of the fresh evidence relating to the patient's credibility can be summarised as follows:

(a) The patient said that she was sexually abused by her father when she was about 5 or 6 years old. She said that he was in the habit of having regular baths; that she would be instructed by her parents to go in and assist her father in the bathroom; that she would have to bath him; that he would then instruct her to wash his penis until he obtained an erection; and that she would then be sent out of the bathroom and her mother called in. Her mother contradicted this, to the extent that she could. She said that her late husband was a very private person who did not ever let others see him in the bath. Essentially she said that she knew nothing of any such activities and certainly had not participated in them as alleged.

(b) The history given by the patient included further information about her deceased father which her sisters and mother contradict. The contradicted assertions were that the father was an alcoholic with an abusive personality, that he physically and verbally abused all his daughters, that he sexually abused one of the patient's sisters (who did not give evidence), and that he did not allow his daughters to play with other children.

(c) The patient said that her mother did not show her children any warmth or affection. That is contradicted by her mother and two sisters.

(d) In giving her history, the patient said that in her view she was married off by her father, and that he had been involved in the selection of her husband and the husbands of her sisters. Her mother and two sisters contradicted this. One of the sisters said that another sister had falsely claimed that their father had participated in the selection of that other sister's husband.

(e) In giving her history, the patient said that her first marriage was an abusive relationship. She said her former husband physically abused her and her two children. She said he kidnapped the children when they were aged 12 and 15, that she had been unable to trace them or have any contact with them for 3½ years, that one son had made contact at the age of 16, and that he had become a street kid and was breaking into houses. Her former husband swore an affidavit contradicting all these assertions. Her mother and two sisters also contradicted them, to the extent that they could from first-hand knowledge.

(f) One of the patient's sisters says that the patient falsely alleged in about 1996 that their father sexually assaulted all his daughters, that the other daughters are blocking it out, and that one day they will realise what had happened. She also said that the patient has told former neighbours that her father sexually assaulted his daughters.

(g) One of the patient's sisters says that the patient once falsely told their father that their mother had run up a lot of accounts everywhere.

(h) One of the patient's sisters says that the patient has falsely told people that their father was an alcoholic.

(i) One of the patient's sisters says that the patient told her a few years ago that she was going to take the appellant and a female doctor to court, and that she was not going to do that for herself but to get a large amount of money which she would use to set up her sons in business and in their own homes.

(j) The patient's mother says that the patient once fell and hurt herself at home, went to work the next morning, pretended to have slipped over and hurt her back at work, made a fraudulent claim for compensation, and got a big payout.

(k) The patient's mother says the patient falsely told people, when her father was dying, that she used to come around and spend hours sitting by his bedside to give her mother a break.

(l) One of the patient's sisters says that the patient used to physically abuse the son whom she said became a street kid.

(m) One of the patient's sisters says that the patient falsely told their father that her brother-in-law - the sister's husband - had been sacked for stealing.

29 None of this fresh evidence relates directly to the events said to have occurred during the patient's consultations with the appellant. The fresh evidence comprises a body of evidence suggesting that the patient made false statements when giving her psychiatric history, and a body of evidence suggesting that the patient has a long-standing propensity to tell false stories. If that evidence were accepted, it could well fall short of establishing whether the patient knew what was false, except in relation to the alleged workers compensation fraud.

30 In assessing the likely impact of the fresh evidence, it must be remembered that the Tribunal is not bound by the rules of evidence. If the fresh evidence had been available to the appellant at the hearing, and if the Tribunal had applied rules of evidence in accordance with the Evidence Act 2001, the patient could have been cross-examined as to all the matters now raised with a view to discrediting her, and witnesses could have been called to contradict her to the extent permitted by s106. However, it would also have been open to the Tribunal to have applied the common law rule of evidence to the effect that the answers given by a witness to questions put in cross-examination concerning collateral facts must be treated as final. See Cross on Evidence, 6th Aust Edn, par17580. Another, perhaps less attractive, alternative is that the Tribunal could have given counsel free rein to cross-examine and call witnesses in relation to all the issues opened up by this fresh evidence, including, for example, the patient's father's bathing habits, the degree to which that man had a role in the selection of the first husband of each of his daughters, and the extent to which the patient's mother used to "run up accounts" before the death of her husband. It would have been up to the Tribunal to draw the line somewhere in order to avoid a multiplicity of issues and keep the proceedings manageable and within practical bounds. If counsel for the appellant had cross-examined the patient as to all the matters raised by the fresh evidence, the Tribunal might well have been attracted by the practical advantages of the common law rule. Because of the Wollongong Corporation v Cowan test, the appellant needs to demonstrate either that the availability of the fresh evidence would have resulted in the Tribunal not finding the allegations of professional misconduct proven, or that that result would have been so highly likely as to make it unreasonable to suppose the contrary. That task is made difficult by the fact that the Tribunal is not bound by the rules of evidence, and by the consequent uncertainty as to the extent to which it would have allowed any of the fresh evidence to be adduced.

31 There are quite a number of possibilities as to what might have happened if some or all of the fresh evidence had been adduced. The patient might have adhered to everything she had previously said. She might have resiled from some of her former assertions, possibly many of them. As to matters that remained in controversy, the Tribunal might have accepted her evidence in preference to that of the new witnesses, at least in relation to some issues. It might have accepted the evidence of the new witnesses to that of the patient, at least in relation to some issues. It might have found itself unable to make findings, at least in relation to some issues. Whilst the fresh evidence tends to suggest that the patient had a propensity to tell false stories, there is no evidence to suggest that any such propensity was the result of any psychiatric or psychological disorder. Even if the Tribunal had been convinced that the patient had made false claims as to past sexual or physical abuse, it would still have been open to it to accept her evidence as to the appellant's conduct in preference to his. The history of past sexual and physical abuse was not something on which the Tribunal placed significant reliance in reaching conclusions in relation to the patient's credibility.

32 I accept that there is a significant possibility that the cross-examination of the patient as to the matters raised by the fresh evidence, and the adducing of some of that fresh evidence to contradict her, could have resulted in the Tribunal not finding the allegations of misconduct proven. However, largely because of the strong favourable impression made by the patient on the Tribunal, the strong unfavourable impression made by the appellant upon the Tribunal, the indirect relevance of the fresh evidence, the uncertainty as to how much of it the Tribunal would have received, and the possibility that the patient would still have been believed in relation to some or all of the new issues, I do not think a different outcome in the Tribunal proceedings would have been a certainty, or so highly likely as to make it unreasonable to suppose to the contrary. The Wollongong Corporation v Cowan test is not satisfied. If this were an appeal from an inferior court of civil jurisdiction, it would be inappropriate to order a new hearing on the ground of fresh evidence. Since this is an appeal from a statutory tribunal to which this Court cannot remit a matter for a new hearing, my conclusion is that the fresh evidence does not warrant a reconsideration or re-determination of the allegations of professional misconduct that were before the Tribunal.