(3) grounds which are objectionable as falling under neither category (1) or (2).
8 The Appellant should have leave to file a summons under s 69 of the Supreme Court Act and, to the extent that he considers it appropriate, to remove from the notice of appeal those grounds which fall within the summons. I do not understand that any point will be taken by the Commission if there remain overlapping grounds. It is, however, desirable to allow the Appellant an opportunity to recast grounds so as to remove allegations which can give rise to no relief in either of the available jurisdictions of this Court.
9 Some of the grounds, as confirmed in discussion during the directions hearing, may involve reference to the transcript, for example, to demonstrate a possible complaint of apprehended bias. Other grounds appear to rely upon matters which could only properly be taken into account in this Court if proved by evidence. It seems likely that such material could only properly arise in respect of the claim for judicial review, in the supervisory jurisdiction of the Court, and not in the statutory appeal. In any event, the Appellant should have an opportunity to file affidavits setting out the evidence proposed to be adduced before this Court. It should be in a form admissible under the Evidence Act 1995 (NSW).
10 The Commission should have an opportunity to consider whether it seeks to put on evidence in reply and an opportunity to take objection to any evidence which it considers to be irrelevant or inadmissible. In the interests of limiting the evidence likely to be adduced at a hearing in this Court, it is appropriate that the Commission have the opportunity to object to evidence put forward by the Appellant prior to itself filing affidavits in reply.
11 It is anticipated that written submissions will be considerably beyond the limit imposed by the Uniform Civil Procedure Rules 2005 (NSW), r 51.36(1)(f). The notice of appeal is almost twice that length. Although there are said to be four complaints, each has within it several separate acts or courses of conduct. Thus complaints 1 and 2 relate to six patients, complaint 3 concerns the records of 20 patients and complaint 4 has within it 50 separate paragraphs. Some expansion of the usual limits on written submissions will be required. However, because of the limited scope of the right of appeal, it is not properly open to the Appellant to challenge the fact-finding in respect of each particular. He is required to identify error with respect to a point of law in some aspect of the Tribunal's decision.
12 The rules require that written submissions should have been filed by the Appellant within six weeks of the notice of appeal. Assuming a notice of appeal with grounds had been filed within three months of the material date, being the date of the decision of the Tribunal, those submissions should have been filed in January 2009. That course has not been followed and it is appropriate that, given the further directions to be made today, the filing of written submissions should await the repleading which is to occur and the filing of evidence.
13 In the course of determining what evidence will be required (if any), the Appellant will need to consider what material was before the Tribunal and how much of that material and of the transcript he seeks to rely upon in this Court. It would be convenient if he were to provide to the Commission draft indices to the material intended to be included in the blue appeal books (exhibits before the Tribunal) and the black appeal books (transcript before the Tribunal).
14 Red appeal books have been filed containing the pleadings and the judgment of the Tribunal, together with the various notices of appeal. The index to the red books is incomplete and needs to be completed. In order to undertake that task, the red books need to be paginated. However, if there is a further amendment to the notice of appeal, it is appropriate that that should be done before amended red books are prepared.
15 At the next hearing, it will be necessary to consider what matters need to be determined on an interlocutory basis and how they should be determined. In particular, it may be necessary to consider the scope of the powers of a single judge of the Court under s 46 of the Supreme Court Act. I note that I recently gave consideration to the scope of those powers in Macatangay v State of New South Wales [2009] NSWCA 81 at [14] and [15]. In the course of those reasons I read the powers of a single judge in s 46(1)(b) "to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules" as involving a reference to a cause specified for the purposes of that provision. That reading may be erroneous and the power to dismiss may extend to any cause specified in the rules as a basis for dismissal of proceedings or, arguably, part thereof. Such rules may include UCPR rr 12.7, 12.8, 12.11, 13.1, 13.4 or 13.6. The proper construction of s 46(1)(b) must take account of other provisions in the Supreme Court Act, including s 46(2)(b).
16 These are matters as to which submissions may be made in due course, if any of these provisions are sought to be invoked. Whether such a need arises will be considered at the next hearing.
17 There was no discussion in the course of the hearing before this Court as to whether an order should be made prohibiting publication of the names or other material which might identify any of the patients of the practitioner who were the subject of complaints or gave evidence in the proceedings before the Medical Tribunal. That Tribunal appears to have adopted the normal course before it of using letters or numbers to identify such persons: see Medical Practice Act, Schedule 2, cl 6. It is appropriate, pending further directions, that a similar order be made in relation to the proceedings in this Court.
18 The Court makes the following directions: