TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Administrative Law - Appeals from administrative authorities - Statutory appeals from administrative authorities to courts - In general - Appeal from statutory tribunal - Tribunal actively and unsuccessfully opposing appeal - Whether order for costs of appeal should be made against the tribunal.

Ex parte Coorey (1944) 45 SR (NSW) 287; R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207; [2004] 3 All ER 543, applied.

Procedure - Costs - Departing from the general rule - Other cases - Statutory tribunal actively and unsuccessfully opposing appeal from the tribunal - Whether order for costs should be made against the tribunal.

Ex parte Coorey (1944) 45 SR (NSW) 287; R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207; [2004] 3 All ER 543, applied.

Statutes - Acts of Parliament - Statutory powers and duties - Exercise - Liability - In general - Statutory protection from liability for act done or purported to be done in good faith for the purpose of administering or exercising the statute - Tribunal actively and unsuccessfully opposing appeal from the tribunal - Whether order for costs should be made against it - Whether statutory protection applies.

Medical Practitioners Registration Act 1996 (Tas), s50(9).

Statutory Authorities (Protection from Liability of Members) Act 1993 (Tas), s4.

Judgment Number: [2007] TASSC 44

DR NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

1 That the appellant's application for an order that the respondent pay his costs of the proceedings before the respondent is dismissed.

2 That Stephen Estcourt QC, Joan Fitznead, Eric V R Ratcliff, Kevin Doran and Jennifer Williams, being the members of the respondent, pay the appellant's taxed costs of the appeal to a single judge and of the appeal to this Court.

DR NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

1 The appellant seeks orders that the respondent Tribunal pay his costs of a hearing of disciplinary proceedings before the respondent, his unsuccessful appeal to a single judge and his successful appeal to this Court.

2 Consequent upon receipt of complaints by a past patient of the appellant, the Medical Council of Tasmania ("the Council"), as it was obliged to do, referred the matter to the Tribunal for an inquiry pursuant to the Medical Practitioners Registration Act 1996 ("the Act"), s47(1). Under s51, the function of the Tribunal was to conduct an inquiry into the complaint, which it did. In a strict sense, there were no adverse parties. The patient was not a party to the proceedings. She was not seeking a remedy or relief. Nor was the Council. There was no prosecutor. However, the Council exercised the power given to it by Sch3 cl 6(4) to appoint a legal practitioner, at its own expense, to assist the Tribunal. That counsel performed a role similar to prosecuting counsel by calling and examining witnesses and cross-examining the appellant.

3 The tribunal for the inquiry, which I will call "the first tribunal", included its chairperson, who was a legal practitioner of not less than 10 years' standing, and a person who was not a medical or a legal practitioner. They were permanent members of the Tribunal and were appointed by the Medical Council under s50(2). In addition, three medical practitioners appointed by the Council for the purposes of the inquiry, under s50(4), were members of the first tribunal.

4 Oral evidence was received on 9 and 10 December 2002 and 11 February 2003. The first tribunal reserved its decision. On 27 March 2003, it published its reasons for concluding that the complaints against the appellant had been established and that he had been guilty of professional misconduct during consultations with the patient on approximately 10 occasions. Her evidence was accepted. His evidence, in which he denied her allegations, was rejected. In essence, the first tribunal found her to be a more credible witness than him. On 16 May 2003, it used its powers under s52 to make orders that the name of the appellant be removed from the Register of Medical Practitioners kept by the Council under s33 and that he be fined $4,000. Using its powers under s53, the first tribunal also ordered that he pay all of the Council's costs and expenses of, or arising from, the inquiry.

5 He appealed to the Supreme Court under s61(1). Under s62, the judge who heard the appeal had power to confirm the first tribunal's decision or to set it aside with or without an order substituting such other decision as the first tribunal had jurisdiction to make. The grounds of appeal (inter alia) attacked the findings against the appellant and sought to have a reconsideration of the patient's complaints in the light of fresh evidence, that is to say evidence not available to the appellant at the time of the inquiry.

6 The notice of appeal named the Tribunal as the respondent to the appeal. It should not have done so. As was the case before the first tribunal, the appeal was not between parties. The Supreme Court Rules 2000, r705(2), only required that the notice of appeal be headed "in the matter of the Act under which the determination was made, and in the matter of the proceeding in which the determination was made". Rule 707(a) and (b) required that the appeal be instituted by filing the notice of appeal in a registry of the court, by serving a copy on the registrar of the Tribunal, and under par(c), "unless a judge otherwise orders, if a person other than the appellant appeared before or was heard by the tribunal in the proceedings in which the determination was made, by serving a copy of the notice of appeal on that person". No point was taken by the Tribunal that it had been erroneously named as the respondent to the appeal and through counsel who appeared on its behalf, it actively opposed the appeal, including the reception of the fresh evidence. The counsel who appeared for it was the same counsel who, having been appointed by the Council, had assisted the first tribunal at the inquiry.

7 The hearing of the appeal occurred over a number of days in December 2003 and the learned judge reserved his decision. The appeal was conducted as an appeal by way of rehearing and not as an appeal by way of hearing de novo. In other words, the learned judge considered the appeal having regard to the evidence before the first tribunal. His Honour accepted that he had power to receive and consider the fresh evidence upon which the appellant sought to rely. Counsel for the appellant and counsel for the Tribunal advanced conflicting submissions as to the test the learned judge should apply to determine whether he should do so. The learned judge accepted the argument of the Tribunal's counsel in that regard, which was that the test to be applied was the one stated in Wollongong Corporation v Cowan (1955) 95 CLR 435 for determining whether a civil jury's verdict should be set aside and a re-trial ordered because of the discovery of fresh evidence. The learned judge determined that the test was not satisfied in this case and continued with the appeal by way of rehearing without taking the fresh evidence into account. The decision was reserved until 1 April 2004, when the appeal was dismissed. It was determined by the learned judge that having regard to the evidence before the first tribunal and the tribunal's reasons, he should accept the tribunal's assessment of the credibility of both the patient and the appellant and therefore, its findings as to professional misconduct. It was ordered that the appellant pay the tribunal's taxed costs of that appeal.

8 The appellant then appealed to this Court, once again naming the Tribunal as respondent to the appeal. It was argued for over two days in June 2004. The same counsel as before appeared for the Tribunal and argued for the dismissal of the appeal, seeking (inter alia) to have the first tribunal's determinations upheld as well as those of the learned judge.

9 On 12 November 2004 this Court published reasons and ordered that the appeal be allowed. The orders of the learned judge, by which it was ordered that the appeal from the Tribunal was dismissed and that the appellant pay the Tribunal's taxed costs of that appeal, were set aside. The orders of the first tribunal made on 16 May 2003 were also set aside. It was ordered that the patient's complaints be remitted to a tribunal constituted by different members for the holding of another inquiry into the complaints. The question of costs was reserved. The Court determined that the learned judge had applied the wrong test to the reception of fresh evidence and that much of that evidence should have been received. Although at that stage of the proceedings it had not been tested adequately, the Court considered that the evidence raised a considerable doubt about whether the first tribunal's confidence in the credibility of the patient, as opposed to the credibility of the appellant, was sound. The Court considered that on the face of the fresh evidence, the foundation of many of the tribunal's findings in favour of her credit was substantially shaken and that there was a firm chance, a significant possibility, that the result of the inquiry would have been reversed if the evidence had been available to the appellant at the time.

10 On 3 and 4 April 2006, a differently constituted tribunal ("the second tribunal") convened for the purpose of conducting another inquiry. However, the patient claimed in a letter to it that she was unable to attend and that she had received medical advice that her attendance could jeopardise her health. Evidence was given to the second tribunal by two medical practitioners that established, to the satisfaction of the tribunal, that she suffered from a number of serious medical complaints and psychological difficulties and that participation in the proceedings posed a significant risk of serious harm, not only to her emotional wellbeing but also to her actual physical health. For those reasons, the second tribunal thought it would be unduly punitive to the patient to issue a summons requiring her attendance and it declined to do so. It then canvassed the options available to it, such as to conduct a hearing in the absence of the patient in person, to stay proceedings or to dismiss the complaints. It considered that it had conducted a formal inquiry and that the only appropriate course, regrettable though it may have been, was to dismiss the complaints and it ordered accordingly.

11 The appellant then applied to the second tribunal for an order that the Council pay his costs of the first formal inquiry and of the second formal inquiry. At the time of the application, s53(3) gave a tribunal a discretion, in the event of it deciding to dismiss a complaint, and if it considered it fair to do so, to order the Council to pay the costs and expenses, or any part of the costs and expenses, incurred by a medical practitioner "in respect of the formal inquiry and any preceding investigation or informal inquiry". Essentially, the basis upon which the application was made was that the fresh evidence had not been available at the hearing of the first inquiry because of certain conduct of the Registrar of the Council, who by virtue of s50(8) was also secretary to the first tribunal. (Details of the conduct can be found in this Court's reasons for allowing the appeal in Fernando v Medical Complaints Tribunal [2004] TASSC 130; (2004) 12 Tas R 366.) The essential point made on behalf of the appellant to the second tribunal was that had the Registrar taken appropriate action at the material time, the fresh evidence would have come to the notice of the appellant and could have been put before the first tribunal. It was submitted for the appellant that it was not to the point to argue about what the outcome of the first inquiry might have been if the fresh evidence had been available at the time, the fact was that the Registrar, who was also the chief executive of the Council, had caused the first inquiry to be a waste of time. (This Court should make no finding adverse to the Registrar. The allegations have never been appropriately judged.)

12 As to the costs of the first inquiry, the second tribunal determined that it had no jurisdiction to make an order. It was a differently constituted tribunal than the one that had conducted the first inquiry. It had recently been constituted under s53(3) for a particular inquiry and not for the one conducted by the first tribunal. It only had power to make an order for the costs of the inquiry of which it was seised and which is was conducting. It was only if that inquiry led to dismissal of the complaints that it could order costs.

13 As to the costs of the second inquiry, the second tribunal noted that s53(3) gave it power to order the Council to pay costs and expenses if it considered it fair to do so and determined that it would not be fair to make the order sought. It acknowledged that the normal rule would be that a successful medical practitioner would be awarded costs. However, in the circumstances of the case, the complaints had been dismissed without a determination of the merits. It had been known well in advance that the patient would not attend the hearing of the inquiry by the second tribunal. The only issues debated before it were whether a summons should issue for the patient's attendance and, if not, whether the inquiry should proceed in her absence, and then, if not, what the appropriate disposition would be. Further, the second tribunal considered it impossible to forecast what would have been the result of the first inquiry if the fresh evidence had been available at that time. The application for the costs of the second inquiry was refused. There has been no appeal from that refusal.

14 The appellant seeks an order from the Court that the respondent, the Medical Complaints Tribunal, pay his costs of the hearing before the first tribunal. Such an order should not be made. The first tribunal had no power under the Act to make an order for costs in favour of the appellant against the tribunal. The only order for costs it could make in his favour was an order against the Council and then, only if it had decided to dismiss the complaints. The Tribunal had no inherent jurisdiction. Its powers to make orders were statutory and it was in the Act that the powers were to be found. On an appeal under s61(1), the powers of the court were limited by s62, to setting aside the decision of the first tribunal and substituting such other decision the tribunal had jurisdiction to make. As the first tribunal had no jurisdiction to make an order that it pay the appellant's costs of the first inquiry, the court had no power to do so either.

15 By virtue of the Supreme Court Civil Procedure Act 1932, s12, and the Supreme Court Rules 2000, rr672(6), 693(1) and 709(1), a judge who hears an appeal from the Tribunal, and the Full Court which hears an appeal from a judge, have power to make whatever order as to the costs of the appeal as appears to be just. As a general rule, the order follows the result of the appeal, so that an unsuccessful party to an appeal is usually ordered to pay the costs of a successful party. Reflecting that general rule is r672(6), which provides for appeals to this Court that "unless some other order is made, the costs of an appeal follow the event".

16 As a rule, it is the practice of courts not to make an order for costs against inferior courts or tribunals on an appeal or application for judicial review from their decisions. The generally accepted view is that no order for costs should be made against them unless there are exceptional circumstances. In the United Kingdom in R v Liverpool Justices, ex parte Roberts [1960] 1 WLR 585 at 586 - 587, Lord Parker CJ said that "it has been the practice not to grant costs against magistrates or tribunals merely because they have made a mistake in law but only if they have acted improperly, that is to say, perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance". Similarly, in R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207; [2004] 3 All ER 543 at 557 Brooke LJ concluded that the established practice of the courts was to make no order for costs against an inferior court or tribunal except when there was a flagrant instance of improper behaviour.

17 The same general view has been adopted in this country. When delivering the judgment of the Court of Appeal in Psychologists' Registration Board of Victoria v The Herald & Weekly Times Ltd [2000] VSCA 118 at par11, Charles JA referred to "a very-well established line of authority which holds that costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that the tribunal has been guilty of serious misconduct or corruption or has acted perversely". Authorities cited for that proposition were R v Liverpool Justices, ex parte Roberts (supra), Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) [1987] FCA 393; (1987) 77 ALR 609 at 612, City of Subiaco v Minister for Planning and Heritage (1996) Butterworths Unreported Judgments BC 9700422 at 6 and two other unreported cases in the Supreme Court of Victoria. In Magistrates' Court of Victoria at Heidelberg v Robinson [2000] VSCA 198 at par7, Brooking JA pointed out that often perverseness by a magistrate needed to be shown before costs would be awarded against the magistrate. See for example, Cummins v Mackenzie [1979] 2 NSWLR 803 at 810 and Ex parte Vincent (1900) 16 WN (NSW) 215. In some cases, "serious misconduct" has been said to be required for an order. See for example, Sankey v Whitlam [1977] 1 NSWLR 333 and Ex parte Blume; Re Osborn (1958) 58 SR (NSW) 334 at 339.

18 This is not a case of perversity or serious misconduct on the part of the first tribunal, or anything approaching it. There is no reason to think that the Tribunal did not carry out its functions properly and honestly on the evidence that was before it. The appeal from its determination only succeeded because of the later discovery of fresh evidence. There is no basis upon which the Tribunal should be damnified for costs because of the resistance of its secretary, who was the employee of the Medical Council, to the inquiry made by the patient's sister. The late discovery of the evidence should be regarded as an unfortunate occurrence and one falling within the normal risks of inquiries and court proceedings.

19 However, there is another reason why the appellant submits that orders for his costs of the appeals should be made against the Tribunal. It is based on the fact that at the hearing of both appeals the Tribunal appeared and opposed them. It did not merely submit to whatever outcome the courts thought appropriate for the appeals. Through counsel, it actively sought to have them dismissed on the merits. What it did was contrary to the advice of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35 - 36, that tribunals should not be encouraged to defend their decisions in courts, because "there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place". The court added that "the presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal".

20 If in breach of that general principle, inferior courts or tribunals actively oppose an appeal from or application for judicial review of their decisions, they adopt the role of a litigant in the court and run the risk of an adverse order for costs being made. Ex parte Coorey (1944) 45 SR (NSW) 287 at 307. After an extensive review of authorities, Brooke LJ in R (Davies) v Birmingham Deputy Coroner (supra) at 557, determined that "the established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event". However, Brooke LJ acknowledged at 558, that if "an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application", at the same time acknowledging as well that other considerations might influence the exercise of the discretion. See also R v Llanidloes Licensing Justices; ex parte Davies [1957] 1 WLR 809.

21 In written submissions, it was argued for the Tribunal that it was not appropriate that orders for costs of the appeals be made against it. Having regard to the principles to which I have referred, that submission must be rejected. Regardless of whether the Tribunal was wrongly named as the respondent to the first appeal and, as a consequence of that, the appeal to this Court, it was under no obligation to actively seek to sustain its determinations on appeal. By choosing to do so, it rendered itself liable for costs in the event of defeat. There is more than mere irony in the fact that having won the first appeal, the Tribunal's counsel sought and obtained from the learned judge an order that the appellant pay its costs of the first appeal. By doing so it abandoned any sound basis for claiming that it should not be ordered to pay costs upon reversal of the outcome of the appeal.

22 A further basis for the Tribunal's defence to the application for the costs of the appeal was the statutory protection afforded to members of the Tribunal by the Act, s50(9) and by the Statutory Authorities (Protection from Liability of Members) Act 1993. By s50(1) the Tribunal was established. Subsection (9) provides:

"A person who is a member of the Tribunal does not incur any personal liability for any act done or purported or omitted to be done by the person in good faith for the purpose of administering or executing this Act."

23 The Statutory Authorities (Protection from Liability of Members) Act, s4, also provides for protection from liability for members of a "statutory authority", which expression could extend to the Tribunal. See s3. By s4, the protection is in the following terms:

"(1) A member of a statutory authority does not incur any personal liability in respect of any act done or omitted to be done by the member in good faith in the performance or exercise, or purported performance or exercise, of any function or power of the statutory authority or in the administration or execution, or purported administration or execution, of the Act under which the statutory authority is established.

(2) Subsection (1) does not preclude the Crown or a statutory authority from incurring liability that a member of the statutory authority would, but for subsection (1) incur."

24 Section 5 of that Act provides that where there is an inconsistency between a provision of that Act and a provision of any other Act, the provision of the 1993 Act prevails. I do not see that it is necessary to determine the extent to which, if any, there are inconsistencies between the two provisions, and I think that counsel for the Tribunal was content to rely on either or both.

25 It is to be noted that the Act, s50, provides protection to members of the Tribunal and does not provide protection to the Tribunal itself which, by subs(1), was established. The distinction between an authority and its members is emphasised by the 1993 Act, s4(2), in its provision that subs(1) does not preclude the authority itself from incurring liability.

26 The Tribunal was not a body corporate and had no legal personage. It was simply "established" under the Act, s50(1), and it had members for each inquiry, two of them permanent and the others appointed specially for each inquiry into complaints about a medical practitioner. It resembled a number of other authorities, including courts, established under statutes. For example, under the Magistrates Court Act 1987, s3A(1), the Magistrates Court of Tasmania was "established" but it was not incorporated and it was given no power to sue or be sued. Similarly, under the Workers Rehabilitation and Compensation Act 1988, s16, the Workers Rehabilitation and Compensation Tribunal was "established" but it was not incorporated or given power to sue or to be sued. That position is to be contrasted with s8 of that Act, by which the WorkCover Tasmania Board was not only established, it was created a body corporate and empowered to sue and be sued in its corporate name.

27 In Brown v Rezitis [1970] HCA 56; (1970) 127 CLR 157 at 169, Barwick CJ criticized as "from the outset erroneous" the naming of a member of the Industrial Commission of New South Wales, Mr Justice Richards, as a respondent to an application for certiorari. His Honour said that the subject of the application was an order of the Industrial Commission and it should have been named as the respondent. The question was considered in the Court of Appeal in Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721 at 723 - 725. That case concerned an application for an order in the nature of mandamus directed to the Crown Employees Appeal Board, a body like the Tribunal, that was constituted by different members from time to time. Moffitt P, with whom the other members of the court agreed, said that any order should be directed to the Board and not to its individual members, and the name of the Board was substituted for the names of the individual members of the Board that had made the material decision. Reference was made to Brown v Rezitis and the practice of courts concerning prerogative writs. That practice was embodied in the Rules of the Supreme Court 1965 (Tas), O72, rr2 and 3, until rescinded with the removal of prerogative writs, in terms respectively that "in the case of a general order directed to a judicial or public authority the authority shall be described by his or its name or office" and "in the case of a magistrate or justices in petty sessions he or they shall be described as the magistrate or justices at the place where the petty sessions are held". The reason for the practice was that a prerogative order directed to an authority allowed for flexibility in the constitution of the authority, so that the order was effectively directed to all members of the authority and encompassed any members before whom the matter might come following the making of the order.

28 No such practice applies to appeals from the Tribunal, and of course, the naming of the Tribunal in the notice of appeal as respondent to the appeal was contrary to practice and not in conformity with the Supreme Court Rules, r705(2). Further, any order for costs that this Court might make in favour of the appellant against the Tribunal should not be enforceable against any person who may, from time to time, become a member of the Tribunal for the purposes of any future inquiry into a complaint against any medical practitioner. It should be enforceable only against those members of the first tribunal who actively sought through counsel, at the hearing of each appeal, to have their determination upheld. For this reason, if the Court is to make such an order for costs, it should be made against those members only.

29 I return to the question of immunity for the members of the first tribunal under the Act, s50(9). For that immunity to operate, their acts in opposing the appeals must have been "done or purported ... to be done ... in good faith for the purpose of administering or executing this Act". They were not. Under the Act, s51, the function of the Tribunal was to conduct an inquiry into each complaint or matter that was referred to it by the Council. The functions it was authorised to perform, once an inquiry had been concluded, were set out in ss52 and 53 and, in essence, amounted to the making of disciplinary orders, an order dismissing the complaint and an order providing for the payment of the costs and expenses of the inquiry. Acts done in good faith in the performance of those functions, or in purported performance of them, would attract the statutory protection. But there was nothing in the Act that authorised the first tribunal to actively oppose an appeal from its decision. By participating in the way it did, the first tribunal was not administering or executing the Act or any of its provisions, or purporting to do so.

30 For similar reasons, the protection of the Statutory Authorities (Protection from Liability of Members) Act, s4, if it extended to the first tribunal, provided no protection to its members from an order for costs.

31 The position can be likened to the one discussed by the Court of Appeal in Magistrates' Court of Victoria at Heidelberg v Robinson (supra). At pars15 - 17, Brooking JA considered the protection and immunity of magistrates and judges in the performance of their duties and rejected it as a basis for resisting an order for costs. It extended to protection and immunity from being sued in relation to the exercise of judicial functions, particularly those performed in the course of hearing and deciding cases. Rajski v Powell (1987) 11 NSWLR 522; Gallo v Dawson (1988) 63 ALJR 121. But as was observed by Brooking JA at par17, it had nothing to do with the awarding of costs against magistrates.

32 It is immaterial that at the hearings of the appeals the judge and this Court may have derived assistance from submissions by counsel for the Tribunal. If the members of the first tribunal had done the right thing and avoided participating in the name of the Tribunal in the way they did, the courts could have sought the assistance of an amicus curiæ who would not have incurred the risk of an order for costs for providing that assistance. That did not occur and that it could have done so should not assist the members of the first tribunal to avoid the making of the usual order for costs against an unsuccessful litigant.

33 The Court has been advised that the members of the first tribunal were Stephen Estcourt QC, Joan Fitznead, Eric V R Ratcliff, Kevin Doran and Jennifer Williams. I would order that they pay the appellant's taxed costs of both appeals.

DR NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

34 I have had the opportunity of reading in draft form the reasons for decision of the learned President and agree with his reasoning and conclusion. Those reasons set out the history of these proceedings and define the issues raised by the respective parties and it is not necessary to repeat them.

35 There can be no doubt but that the members of the Medical Complaints Tribunal ("the Tribunal") acted in good faith. The question of the naming of the Tribunal as the correct respondent was either not adverted to, or the members of the Tribunal accepted the advice to oppose the original appeal, in particular the application for the reception of fresh evidence and authorised solicitors and counsel to present an opposing case. The court record discloses that the "Medical Complaints Tribunal" acted through solicitors on the record and its counsel appeared at the hearing. It sought and obtained an order for costs against the original appellant following the dismissal of that appeal. There can be little doubt but that it authorised counsel to appeal on the appeal to this Court, "in good faith", retaining solicitors and counsel for that purpose. In doing so it went beyond its responsibility to act as an investigating and disciplinary tribunal. In Re The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 54 ALJR 314, the Broadcasting tribunal had instructed counsel to appear on its behalf in opposition to the application. Gibbs, Stephen, Mason, Aickin and Wilson JJ observed in their joint judgment at 322:

"There is one final matter. Mr Hughes, QC was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the Court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the tribunal."

(See also Charlton v Members of the Teachers Tribunal [1981] VicRp 79; [1981] VR 831 at 855; see generally Forbes, Disciplinary Tribunals, 2nd ed, The Federation Press, 1996.)

36 It had been open for counsel for the respondent, on the hearing of the original appeal, to contend that the Tribunal itself was not the appropriate party and that it was open to the appellant to seek to add a different party as the "proper" contender. It was open for the members of the Tribunal to seek the intervention of the Medical Council of Tasmania which had originally referred the complaint to the Tribunal as required by the Medical Practitioners Registration Act 1996 ("the Act"), s47. It chose to oppose the original appeal and to seek to challenge the outcome through this Court.

37 Counsel for the respondent on the hearing of this appeal relied on the provisions of the Act, s50(9), which provides:

"(9) A person who is a member of the Tribunal does not incur any personal liability for any act done or purported or omitted to be done by the person in good faith for the purpose of administering or executing this Act."

38 Counsel also relied on the provisions of the Statutory Authorities (Protection From Liability of Members) Act 1993, s4, which states:

"4 Protection from liability

(1) A member of a statutory authority does not incur any personal liability in respect of any act done or omitted to be done by the member in good faith in the performance or exercise, or purported performance or exercise, of any function or power of the statutory authority or in the administration or execution, or purported administration or execution, of the Act under which the statutory authority is established.

(2) Subsection (1) does not preclude the Crown or statutory authority from incurring liability that a member of the statutory authority would, but for subsection (1), incur."

39 The Statutory Authorities (Protection From Liability of Members) Act, s5, provides that in the case of any inconsistency between that Act and the provisions of any other Act, the provisions of the 1993 Act are to prevail. I have considered whether the provisions of that Act, s4(2), provide an inconsistency in that it would protect the members who constituted the Tribunal whilst affording relief against the relevant "statutory authority" namely, the Tribunal. The enactment provides immunity for a member of a statutory authority from liability for an act done in good faith in the intended execution of his or her duty. The addition of subs(2) preserves the vicarious liability of the Crown or authority which would otherwise remain immune from liability (Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714, De Bruyn v South Australia (1990) 54 SASR 231; see generally Hogg & Monahan, Liability of the Crown, 3rd ed, Carswell 2000).

40 My conclusion is that the addition of subs(2) does not raise any inconsistency between the Statutory Authorities (Protection From Liability of Members) Act, s4, and the Act, s50.

41 Counsel for the Tribunal sought and obtained an order for costs against the appellant upon the dismissal of the original appeal. The Court ought strictly construe legislation which might permit the same tribunal to resist an order when unsuccessful. A consequence of that position is, as here, that a successful appellant is unable to have recourse to the Appeals Costs Fund Act 1968, since it is precluded from obtaining a costs order against a person exercising statutory power.

42 The functions of the Tribunal are set out in the Act, s51, which states:

"51 ¾ Tribunal to hold formal inquiry into referred complaint

(1) The Tribunal is to hold a formal inquiry into each complaint referred to it under section 49E.

(2) Pending the completion of the formal inquiry the Tribunal, having regard to the nature of the complaint, may request the Council to ¾

(a) suspend the defendant's registration pursuant to section 55; or

(b) impose a condition on the defendant's registration.

(3) The Tribunal is to give the Council notice of its reasons for making the request and ¾

(a) if subsection (2)(a) applies, a recommendation whether the suspension should be total or partial; or

(b) if subsection (2)(b) applies, a recommendation as to the required condition.

(4) The Council must not refuse to comply with the Tribunal's request unless it is satisfied that there are reasonable grounds for so doing.

(5) If the Council agrees to a request under subsection (2)(b), it has power to impose the condition but it must ¾

(a) give the defendant notice of the condition and the defendant's right of appeal and review in respect of the condition; and

(b) issue the defendant with a new certificate of registration incorporating the condition."

43 The Act separately provides for the functions and objectives of the Medical Council which are far wider than those governing the operation of the Tribunal. The Act, s7, refers to functions which include:

"7 ¾ Functions of Council

The Council has the following functions:

(a) to administer the scheme of registration under Part 3;

(b) to supervise the practice of medicine in this State;

(c) to examine complaints and, as necessary, refer them to the Tribunal;

(e) to monitor the standard and provision of medical services in this State;

(f) to monitor standards of medical education and training;

(g) to advise the Minister on matters relating to this Act;

(h) such other functions as may be imposed on the Council by this or any other Act or as may be prescribed."

while s9 sets out general objectives requiring the Council to perform its functions and exercise its powers so as to:

"(a) ensure that medical services provided to the public are of the highest possible standard; and

(b) ensure that persons practise medicine according to the highest professional standards; and

(c) guard against unsafe, incompetent and unethical medical practices."

44 The Tribunal is an integral component of the operation of the legislation. But the component is not the equivalence of the whole. The statute did not make the Tribunal responsible for the functions required of the Council.

45 The Tribunal was not performing a function in the administration of the Act. I am conscious of the approach and reasoning of Evans J stated in his draft reasons for judgment. My difference is that legislation intended to protect individuals from claims for damages personally ought not be used by the Executive or statutory institution as a means of avoiding vicarious liability or to preclude the operation of general beneficial legislation (Appeal Costs Fund Act). The Court ought in such cases strictly construe the legislation which produces such an outcome. Here the term "performance" or "done" for the purpose of "administration" or "execution" of an act or any "purported" conduct ought be confined to those actions, powers and functions which the statute provides may be undertaken by the members of the Tribunal.

46 I would join in the orders prepared by the learned President.

DR NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL

47 I have had the benefit of reading the reasons for judgment prepared by Crawford J. Whilst I agree with much that he has written, I am of the view that the order for costs against the Tribunal as constituted by the members specified should be made subject to a declaration that those members bear no personal liability for the costs. As explained by Crawford J, the Tribunal is not a body corporate and is simply "established" under the Medical Practitioners Registration Act 1996 ("the Act"), s50(1).. In my view the legal standing of the Tribunal is analogous to that of a partnership or trust. A partnership is not a legal entity distinct from the persons who comprise it and a trust is not a legal entity distinct from the trustee or trustees. That the order I propose is only likely to be of limited benefit to the appellant does not mean that it should not be made. It may be that contrary to my expectations the Tribunal has some assets and in addition the appellant is entitled to whatever benefit can be derived by reason of the order under the Appeal Costs Fund Act 1968.

48 I am satisfied that the members of the Tribunal, as distinct from the Tribunal, are entitled to claim in aid the statutory protection afforded by the Act, s50(9), or the Statutory Authorities (Protection from Liability of Members) Act 1993, s4(1).Before focussing on the immunity provided by these provisions, I will retrace the course of events that resulted in the Tribunal being represented in the proceedings that are the subject of the costs applications. The appellant's notice of appeal against the decision of the members of the Tribunal who found him guilty of professional misconduct named the Tribunal as the respondent. This was an error. The Supreme Court Rules 2000, r705(2), only required that the notice of appeal be headed "In the matter of the Act under which the determination was made, and in the matter of the proceeding in which the determination was made". There is no requirement to name a respondent, as proceedings before tribunals commonly do not involve adverse parties. There were no adverse parties in the proceedings before the Tribunal, the complainant was not a party, and there was no prosecutor. Implicit in the appellant's error in naming the Tribunal as a respondent to its notice of appeal is a further error; the assumption that pursuant to the Act, the Tribunal was the entity charged with defending and enforcing its decisions. The appellant is not alone in making these errors; see Kudelka v Medical Complaints Tribunal [2004] TASSC 31, Jager v Medical Complaints Tribunal [2004] TASSC 58 and Martin v Medical Complaints Tribunal [2006] TASSC 73.

49 Whilst I am satisfied that for the purposes of the administration and execution of the Act, it is necessary, where appropriate, to defend and enforce decisions of the Tribunal, nothing in the Act authorises the Tribunal to do so. The Act, s61(2), authorises the Medical Council of Tasmania ("the Council") to appeal to the Supreme Court against decisions of the Tribunal and, more pertinently, the Act, s54(4), requires the Council to take such actions as may be necessary or expedient to give effect to the Tribunal's decisions. These provisions, coupled with other provisions in the Act that distinguish between the roles of the Council and the Tribunal, demonstrate that it is the Council, not the Tribunal, that is responsible for defending and enforcing the Tribunal's decisions. Nevertheless, the Tribunal, having been named as the respondent to the appellant's appeal, it appeared by counsel on the hearing of the appeal before Blow J and opposed the appeal. Because of the general complexity of the issues raised by the appeal, which included an application for the admission of fresh evidence, the issues would not have been adequately addressed without the assistance of an opponent to the appeal. Had the Tribunal not been named as the respondent and opposed the appeal, it is almost inevitable that a direction would have been made as to the service of the notice of appeal on the Council, and the Council would have been encouraged to assist the Court by engaging counsel to test the appeal. If this had resulted in the appellant obtaining an order for costs against the Council, the individual members of the Council would not have been liable for those costs. Council is a body corporate, the Act, s5(1). See also the Act, s14(1). As it happened, as the appellant had named the Tribunal as the respondent and the appellant did not object to the Tribunal being heard in opposition to his appeal, no consideration was given to the entity that, pursuant to the Act, was responsible for defending the Tribunal's decision. The same can be said of the appellant's appeal to this Court against the decision of Blow J. Once again, the appellant named the Tribunal as the respondent and the appellant did not object to the Tribunal being heard in opposition to the appeal. It seems that at no time did the appellant, the Tribunal, or a member of the courts that heard the appeals, advert to the inappropriateness of the Tribunal being the respondent, bearing in mind that it is the Council, not the Tribunal, that has responsibility under the Act for defending and enforcing the decisions of the Tribunal. It was only when the appellant sought an order for costs that attention was given to this question.

50 Against this background, I conclude that the individual members of the Tribunal that responded to the appellant's appeals did so in good faith and that response was purported to be done for the purpose of administering or executing the Act; that purpose being the defence of the Tribunal's decision. I accept that as the Council, not the Tribunal, had the authority to fulfil that purpose under the Act, it could not be said that the Tribunal's defence of the decision was done in the administration or execution of the Act. However, in my respectful view, this does not mean that the members' claims to the statutory protection afforded by the Act, s50(9), or the Statutory Authorities (Protection from Liability of Members) Act, s4(1), fail. The former provision provides:

"50 ¾ (9) A person who is a member of the Tribunal does not incur any personal liability for any act done or purported or omitted to be done by the person in good faith for the purpose of administering or executing this Act."

"4 ¾ (1) A member of a statutory authority does not incur any personal liability in respect of any act done or omitted to be done by the member in good faith in the performance or exercise, or purported performance or exercise, of any function or power of the statutory authority or in the administration or execution, or purported administration or execution, of the Act under which the statutory authority is established."

51 I will refer to the above provisions as "the immunity provisions". It is not necessary to consider the extent to which there are inconsistencies between the immunity provisions and whether the latter provision prevails over the former provision. For present purposes, the crucial elements of a claim to the benefit of the immunity provisions are that the act was done in good faith and that it was done in the purported administration or execution of the Act. In my view, the fact that the act was beyond power or performed by the wrong entity does not in the present circumstances mean that it was not done in the purported administration or execution of the Act. To so conclude would deny the word "purported" full effect. A determination as to whether a particular act was done or was purported to be done for the purposes of the administration or execution of the Act is one of fact and degree in all the circumstances of the case.

52 An illustration of the use of the term "purported" in legislation to cover an act performed without authority is the Matrimonial Causes Act 1971 (Cth), s5. That Act was passed because officers and Commissioners of State Supreme Courts had made orders under the Matrimonial Causes Act 1959 (Cth) when, on the prevailing authorities, they had no jurisdiction to do so. The effect of the legislation was that, if an officer or Commissioner of the Supreme Court of a State had "purported to make" such an order, the rights and liabilities of all persons subject to the order were legislatively saved. As to that legislation, see R v Humby; Ex parte Rooney [1973] HCA 63; (1973) 129 CLR 231.

53 I draw some comfort for the scope that I give to the word "purported" from the following passages:

• Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94, Dixon J at 108:

"Protective provisions requiring notice of action, limiting the time within which actions may be brought or otherwise restricting or qualifying rights of action have long been common in statutes affecting persons or bodies discharging public duties or exercising authorities or powers of a public nature. In provisions of this kind it is common to find such expressions as 'act done in pursuance of this section' or 'statute,' 'anything done in execution of this statute' or 'of the powers or authorities' given by a statute, or 'under and by virtue of' a statutory provision. Such enactments have always been construed as giving protection, not where the provisions of the statute have been followed, for then protection would be unnecessary, but where an illegality has been committed by a person honestly acting in the supposed course of the duties or authorities arising from the enactment."

• Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ at 605:

"There are many cases in which courts have been called upon to consider protective provisions, such as s47A and s138, which require that the relevant act have a designated connection with the course of official duty, such that it be done in 'pursuance' or 'execution' of some statute or in 'carrying' some statute 'into effect' (See, eg, Hamilton v Halesworth [1937] HCA 69; (1937) 58 CLR 369, at p377; Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94, at p108; Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147, at pp156-158; Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640, at p651.), or in 'pursuance', 'execution' or 'discharge' of some public duty or office (See, eg, Theobald v Crichmore (1818) 1 B and Ald 227, at p229 (106 ER 83, at p84); Selmes v Judge (1871) LR 6 QB 724, at pp727-728; Newell v Starkie (1919) 83 JP 113, at pp116, 117; G Scammell and Nephew Ltd v Hurley (1929) 1 KB 419, at p427; Hamilton v Halesworth (1937) 58 CLR, at p374.) Through the judgments in those cases there runs a 'clear conception of (a person) intending and trying to do his (or her) duty but labouring under some misapprehension of fact or of law' (Trobridge v Hardy (1955) 94 CLR, at p160.). Even in the absence of any explicit qualifying adjective such as 'intended' (as in s47A of the Limitation Act) or 'purported', the defence under such statutory provisions is not confined to the case where the defendant's conduct was actually justified as being in pursuance or execution of some statutory provision or in the discharge of some public duty or office (See, eg, Greenway v Hurd [1792] EngR 704; (1792) 4 TR 553, per Lord Kenyon CJ at p555 [1792] EngR 704; (100 ER 1171, at pp1172-1173); Theobald v Crichmore (1818) 1 B and Ald, per Lord Ellenborough CJ at p229 (106 ER 83, at p84); Cann v Clipperton (1839) 10 Ad and E 582, per Williams J at p589 [1839] EngR 809; (113 ER 221, at p224); Hughes v Buckland [1846] EngR 582; (1846) 15 M and W 346, per Parke B at pp355-356 [1846] EngR 582; (153 ER 883, at p887); Spooner v Juddow (1850) 4 Moore Ind App 353, per Lord Campbell at pp379-380 [1850] EngR 299; (18 ER 734, at p744); G Scammell and Nephew Ltd v Hurley (1929) 1 KB, per Scrutton LJ at p427; Hamilton v Halesworth (1937) 58 CLR, per Starke J at p374; Little v The Commonwealth (1947) 75 CLR, per Dixon J at pp108-109; Trobridge v Hardy (1955) 94 CLR, per Taylor J at p171; Marshall v Watson (1972) 124 CLR, per Stephen J at pp650-651.). If it were, the protection which such provisions provide to those acting bona fide in the course of public duty would be illusory."

54 Cowell v Corrective Services Commission of New South Wales BC8600527 is an illustration of the scope that can be given to a statutory immunity in respect of anything done or purporting to be done for the purposes of carrying out the provisions of an Act. The conduct in question in that case was the admitted wrongful, but mistaken, detention of the plaintiff, Cowell, in prison after his due release date. The first defendant, the Corrective Services Commission of New South Wales, claimed in aid the protection of the then Prisons Act 1952 (NSW), s46, which provided:

"No action or claim for damages shall lie against any person for or on account of anything done or commanded to be done by him and purporting to be done for the purpose of carrying out the provisions of this Act, unless it is proved that such act was done or commanded to be done maliciously and without reasonable and probable cause."

55 Yeldham J held, consistent with an earlier decision of O'Brien CJ of Cr D in Murphy v Corrective Services Commission of New South Wales & Ors (unreported, 8 December 1983), that s46 defeated the plaintiff's claim against the first defendant. In doing so, he rejected an argument that the first defendant could not rely on s46 because the detention of the plaintiff was pursuant to a judicial order or sentence and warrant of commitment and was not for the purpose of carrying out the provisions of the Prisons Act. It was not suggested that as the detention of the plaintiff was not authorised by that Act, the first defendant's conduct could not be said to be an act done or purported to be done for the purpose of carrying out the provisions of that Act.

56 Counsel for the appellant submits that the immunity provisions do not extend to a liability for an order for litigation costs. I do not agree. The immunity provisions expressly specify "any personal liability". There is no basis for excluding costs from the personal liabilities covered by the provisions. The provisions do not distinguish between types of personal liability. The issue is whether the personal liability in question arose from an act done or purported to be done in the specified circumstances. I do not see any conflict between the view that I have expressed and the decision of Brooking JA in Magistrates' Court of Victoria at Heidelberg v Robinson [2000] VSCA 198, where he, in substance, said that the immunity accorded to magistrates and judges in the performance of their judicial duties did not protect them from an order for costs where they participated in litigation in defence of their decisions. It is difficult to envisage a situation in which it could be said that a judge or magistrate who did so was performing his or her judicial duty. That is not the issue before this Court. The issue is whether liability for the costs in question arose because of acts done or purported to be done for the purposes of administering or executing the Act, and in my view it did.

57 As to the further issue of whether the actions of the individual members were done in good faith, I have no hesitation in so concluding. The appellant bears the burden of establishing lack of good faith, see Webster v Lampard (supra). Nothing put before the Court suggests that the individual members did not act in good faith.

58 The Court has been provided with the names of the individual members who made up the Tribunal for the purposes of responding to the appeal. I would order that the Tribunal as constituted by those members pay the appellant's costs of both appeals and declare that those members bear no personal liability for those costs. I would further order that the Tribunal as constituted by those members be granted an indemnity certificate pursuant to the Appeal Costs Fund Act, s8(1), with respect to the appeals.