Mann v Medical Practitioners Board of Victoria & Anor [2004] VSCA 148

2. I have had the advantage of reading the draft reasons for judgment of Hansen, A.J.A. and agree that, for the reasons given by his Honour, the application before us must fail. As his Honour says, the impugned decision is interlocutory. That is because it was made in an application that was preliminary to the prosecution of the substantive proceeding, and thus did not determine finally, from a legal point of view, the rights of the parties in a principal cause pending between them. Consequently, the applicant must obtain leave to bring the appeal before this Court can entertain it. To secure such leave he is required to demonstrate, at least, that the decision below was attended with sufficient doubt to warrant it being reconsidered on appeal. But as Hansen, A.J.A. explains, the applicant has failed to establish such error.

5. Osborn, J. dismissed Mr Mann's application for an extension of time to commence proceedings against the Board under Order 56 of the Rules of the Supreme Court on three principal grounds: the applicant's substantive claim has no merit, the applicant failed to demonstrate "special circumstances" for the purpose of Rule 56.02(3), and, in the exercise of his discretion. Mr Mann's case before his Honour was that his substantive complaint against the Board, which he intends to pursue if he is given the extension of time that he seeks, is that it lacked the power to send out the letters of 8 October 1996, the terms of which are set out in the reasons of Hansen, A.J.A. and, therefore, its "decision", as the applicant terms the Board's action in that regard, should be set aside. But the question whether the Board had such power was resolved against Mr Mann in the two decisions of this Court discussed by Hansen, A.J.A. in his judgment. It was decided in those cases that the Board did have "ancillary" power to send such communications. Consequently, this issue cannot be reconsidered in the proceeding contemplated by Mr Mann. It follows that the decision of Osborn, J. that the applicant's substantive claim is without merit and, therefore, to grant the extension sought would be futile, was fully justified.

8. The applicant nevertheless claimed before us that the letters in question conveyed more than mere advice. He submitted, correctly, I think, that they were condemnatory of him as a medical practitioner, although it is debatable whether the criticism can be characterised as a reprimand, as Mr Mann seems to have suggested, for the purposes of the Medical Practice Act 1994 or otherwise. Be that as it may, he then argued that, in view of the serious consequences to him of such criticism, the Board should have accorded him natural justice before embarking on its impugned conduct, but that it failed to do so. This complaint against the Board, said Mr Mann, has merit. But I consider that even if the applicant has an arguable case along these lines, that is of no relevance to his application before us because, as Hansen, A.J.A. explains, such a claim was effectively abandoned below and consequently, it cannot be said that the learned primary judge erred by not considering it .

11. I should say for completeness that I am not persuaded that the Board's characterisation of Mr Mann's language towards Mr Bailey as "intemperate" is inaccurate and I have also some doubt as to whether he has real prospects of establishing a breach of natural justice by the Board. But even if such a case is arguable, for the reasons given by Nettle, J.A. in his comprehensive judgment on this issue, the draft of which I had the benefit of reading, there is virtually no prospect that a court will grant the applicant the prerogative relief he intends to seek. Consequently, any proceeding that might now be brought by him against the Board claiming such relief on the basis that it denied him procedural fairness would be bound to fail.

14. I also agree with Hansen, A.J.A. that no relevant error was made by the learned primary judge in concluding that Mr Mann has not established the existence of "special circumstances" within the meaning of Rule 56.02(3). It is clear enough that the factors that his Honour took into account in his thorough analysis of this issue were relevant to its resolution. Mr Mann argued, however, as I understood him, that there were two other matters that amounted to "special circumstances" which his Honour overlooked. The first was the Board's condemnation of him as a medical practitioner without first according him an opportunity to meet the

criticism. The second was that his complaint against the Board's conduct is likely to have ramifications for other medical practitioners. In my view, neither matter constitutes a "special circumstance". Given the lateness of the application and having regard to what I have said about the applicant's prospects of success in any claim against the Board based on breach of natural justice, on no view can the first matter be regarded as a "special circumstance". A like conclusion must apply in relation to the second matter put forward by Mr Mann as a "special circumstance". Even if it were relevant to consider for this purpose whether the resolution of Mr Mann's proposed claim against the Board is likely to have an impact on its conduct towards doctors generally in respect of disciplinary complaints, there is no acceptable evidence before us to support that contention.

18. I mention for completeness that, for the reasons given by Hansen, A.J.A., the applicant has also failed to establish that his Honour's discretion miscarried.

21. In the circumstances, the applicant's leave to appeal must be dismissed and his appeal struck out as incompetent.

26. I have had the advantage of reading in draft the reasons for judgment of my brother Hansen. I agree with his Honour that the appeal should be dismissed for the reasons that he gives. In deference, however, to some of the submissions advanced by Mr Mann, I wish to add a couple of observations on the question of whether the Board's letters of 8 October 1998 were part of its decision.

29. The assumption which appears to have informed much of the debate before the Judge below, and was central to a good deal of the argument before us, was that Mr Mann could not succeed in his application for judicial review unless he were able to demonstrate that the decision to send the letters of 8 October 1998 was part of its decision not to proceed further with investigation of the complaint against him. But so to approach the matter is surely misconceived. Mr Mann does not seek to

overturn the Board's decision not to proceed against him. His point is and always has been that the Board had no power to criticise him. The question is not whether the criticism was part of the decision, but whether the criticism was beyond power.

33. Hansen, A.J.A. has referred to the previous litigation between Mr Mann and the Board in which it was held by this Court that it was incidental to the power reposed in the Board by s. 25(1)(a) of the Act, and thus an exercise of that power, for the Board to give reasons for its decision not to proceed against Mr Mann and for the Board to communicate those reasons to Mr Mann and to the complainant.[1] It followed, as it was held, that the exercise of the power in the absence of malice was an occasion of qualified privilege. But this Court has not before been asked to consider whether the Board committed any reviewable error in the exercise of the power, and in particular has not had to consider whether any failure to afford Mr Mann a hearing was productive of reviewable error. Apparently, no one even thought about the possibility until Mr Mann applied to the High Court for special leave to appeal from the this Court's decision on the question of qualified privilege.[2] And, as Hansen, A.J.A. has noticed, it only arose then when Kirby J asked Mr Mann, in the course of the hearing whether he had ever taken any steps "to challenge, to have set aside under administrative law, the finding of the Board ... as being outside their power, as distinct from suing them for defamation?"

36. Counsel for the Board tentatively submitted to us that any consideration of the question of lack of power is precluded by issue estoppel. But that is not so.[3] The problem now faced is new.

39. Authority makes plain that where a statute confers on a public official a discretionary power to destroy, defeat or prejudice a person's rights, interests, or legitimate expectations, the official is required to act reasonably in the exercise of the power and the rules of natural justice will apply to the exercise of the power unless they are excluded by plain words of necessary intendment.[4]

42. The content of natural justice is of course variable, according to the nature of the power to be exercised.[5] But the first rule of natural justice is that a statutory authority having power so to destroy, defeat or prejudice a person's rights, interests or legitimate expectations is bound to accord that person a hearing.[6] That rule does not yield lightly to manifestations of contrary intention. An abrogation of the rule may not to be assumed or spelled out from indirect references and it is not to be derived from uncertain inferences or grounded in equivocal considerations.[7]

45. Furthermore, it is a fundamental aspect of the fair hearing rule that a decision maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision maker has warned the person of the risk of that finding or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.[8]

48. Consequently, if a public official exercising statutory power to destroy, defeat or prejudice a person's rights, interests or legitimate expectations breaches the fair hearing rule or the warning rule, then (assuming that the statute has not relevantly and validly limited or extinguished the obligation to accord a fair hearing or to warn) the official exceeds jurisdiction in a way that may attract prerogative relief.[9]

51. So, in my opinion, it is at least seriously arguable that the Board were bound to warn Mr Mann that they were minded to criticise him, and to accord him an opportunity to be heard before determining to criticise him, and it is arguable that their failure to afford him that opportunity was of a kind that is sometimes susceptible to prerogative relief.

54. That said, however, prerogative relief in the nature of prohibition or certiorari does not lie as of right - it is discretionary[10] - and the considerations which are relevant to the exercise of that discretion include the utility of the relief which is sought and the conduct of the applicant, as well as the public interest that there should be an end to litigation.[11] As Ryan J put it in Shell's Self Service Pty Ltd v Deputy Federal Commissioner of Taxation[12]:

"Those authorities which include Ex parte Frankel [1914] VicLawRp 92; [1914] VLR 635 and Reg v Aston University Senate [1969] 2 QB 538 serve as a useful reminder that this Court should not automatically quash or set aside a decision upon finding that it has been vitiated by error of law. It is also necessary to have regard to the conduct of the applicant for review including any delay in bringing the proceedings or acquiescence in the decision maker's error. As well it may be appropriate to examine whether, on further consideration, the decision maker could reasonably come to some other decision more favourable the applicant for review."

58. From Mr Mann's point of view, the utility in the orders which he seeks is that he is a professional man and therefore he is concerned by the criticism that he spoke intemperately in his correspondence with the complainant. That sort of criticism reflects adversely upon him and upon his reputation. He is aggrieved that he was so criticised without being given the opportunity to be heard, and he wants the record expunged.[13] But the utility of the orders sought is not to be judged only on the basis of Mr Mann's objectives. As has been seen, one needs also to bear in mind the time elapsed and whether, if certiorari were to go and the matter were to be reconsidered, the result would be any different.

61. So it was in Reg v Aston University Senate, where a university student was sent down after failing examinations and sought certiorari to quash the decision to expel him, on the ground that he should have been given a hearing before the decision was made. He delayed more than six months in making his application and although there was no time limit as such, the application was refused. Donaldson J with whom Lord Parker CJ and Blain J agreed, said:

"...it is not in all circumstances that a breach of natural justice will give rise to prerogative redress. The remedies are discretionary and a very important factor is the likelihood that the ultimate decision would have been any different, if the right of audience had been extended...It is in this context that the history of the affair after the initial decision is of relevance, but it is difficult to evaluate. In the course of the argument Mr Moncaster was asked whether there was any further information which Mr Partridge wished to place before the court, but, after taking instructions, Mr Moncaster said that there was none. ...it is impossible to project subsequent attitudes backwards in point of time and determine what the examiners would have done if they had heard the students" allegations, before making a decision. In this situation I regard the time factor as decisive. The prerogative remedies are exceptional in their nature and should not be made available to those who sleep on their rights."[14]

65. As matters stand, we now have before us everything that Mr Mann might have wished to place before the Board and yet, despite that material, one can hardly doubt that the language which he used was intemperate. Brooking, J.A. gave some examples of it in his Honour's reasons for judgement in the appeal in the defamation proceedings. His Honour said:

"As regards publication in Victoria, the judge found that the words complained of were in substance true. His Honour declined to consider the law of New South Wales. I see no reason to differ from the finding of fact about truth. I have not thus far set out any of the words used by the plaintiff in his correspondence with Mr Bailey which might be regarded as intemperate. I now give some examples:

* "brazen audacity"; * "you have only been admitted in 1987, and I shall have to forgive your relative youth"; * "rather than blustering along ..."; * "your inexperience and gullibility"; * the lay client had "fallen into the hands of a conveyancer to run a malpractice case" instead of being "looked after by those who know what they are doing"; * "the violent defamation which you have published"; * your correspondence is "pathetic"; * "does this constitute fraud, in an attempt to save you money personally, ...? And should I now not report you to the Law Society?"; * "please do not tediously claim legal professional privilege. I do have a copy of S. Nichol's work on the subject. She knows more about it than you do"; * "your actions ... Are totally dishonourable"; * "may I ask whether you are under medical care?"; * "your fusillade of invective"; * "I suggest again that you stick to conveyancing and get some legal advice".

71. There is too the extraordinary delay to which I have already referred, to which of course it is no answer that Mr Mann did not consider the possibility of judicial review. The delay is so great that, even if there were some chance of Mr Mann's language being regarded as other than intemperate, the delay would almost certainly be regarded as determinative. As in Aston University, it is impossible to project subsequent attitudes backwards in point of time and determine what the Board would have said if they had heard Mr Mann before making their decision. Just as importantly, and whatever be the reasons, Mr Mann has slept on his rights to claim prerogative relief.

74. Most importantly, however, it was the Judge below who was charged with the responsibility of deciding whether Mr Mann had shown special circumstances for waiting more than six years before the institution of the proceeding, and as Hansen, A.J.A. has explained, that means that in the absence of a real likelihood of error and the prospect of substantial injustice, the Judge's decision must stand.[15]

77. Mr Mann contended that there was error in the way in which the Judge had proceeded on the basis that:

"The matter was expressly argued before [him] as raising issues going to power and not raising issues going to procedural fairness."[16]

It was submitted that it should have been plain to his Honour from Mr Mann's affidavit of 11 April 2002 that the substance of the complaint was that:

"16. Adverse finding and determinations can only be made by the defendant after a formal or informal hearing has taken place. As it is acknowledged by the defendant that no formal or informal hearing took place, the decisions made are invalid in law. 17. The defendant cannot deny natural justice to any medical practitioner during disciplinary proceedings by denying them a hearing conducted in accordance with the procedures set out in the Act. 18. Because no hearing was conducted, I was denied natural justice."

83. But there are two fundamental problems with that argument. The first is that Mr Mann was represented before the Judge below by competent counsel and the Judge was in effect bound to treat the matters in issue as being those which counsel decided to put in issue. It is not an error to deal with a civil case on the basis that the parties argue that it should be dealt with. Parties to civil litigation are ordinarily confined to the issues which they choose to run.[17] The second problem, which is really the point of these observations, is that the supposed error could not have made any difference. For the reasons which I have endeavoured to explain, the chances of obtaining an extension of time on the basis of a denial of natural justice were just as minimal as those of obtaining the extension of time which was sought on the basis of lack of power.

88. This is an appeal from the refusal of a judge in the Trial Division to extend the time in which the appellant, Mr Arnold Mann, a medical practitioner, may

commence a proceeding for judicial review under Order 56. The substantive claim which he wishes to bring is that a decision of the Medical Board of Victoria made on 3 October 1996 be set aside. The decision was made on a complaint by a Sydney solicitor, Mr Paul Bailey of the firm Rockliffs, which arose out of a dispute as to the fee payable to Mr Mann who, at Mr Bailey's request, had agreed to give expert medical evidence in a case in Sydney. The case was settled before trial in April 1996. Mr Mann says that Mr Bailey refused to pay his fee and that what he described as a robust exchange of letters ensued. On 5 June 1996 Mr Bailey wrote to the Board complaining about Mr Mann's conduct. The Board decided that there was no unprofessional conduct. That decision is recorded in a minute which also referred to language of Mr Mann as "intemperate", but which language did not constitute unprofessional conduct. The Board sent letters advising the decision to Mr Mann and Mr Bailey; in the former advising him against the use of such language in professional correspondence, and in the latter stating that Mr Mann had been so advised. Mr Mann seeks to have set aside the "decision" as to intemperate language that is stated in the letters. More particularly, he complains of the letter sent to Mr Bailey.

92. On 26 March 2002 Mr Mann filed the originating motion which seeks the order that the time for commencing the proceeding be extended, and that the decision of the Board made on 3 October 1996 be set aside. Unless the extension is ordered the proceeding as a whole must be dismissed on account of it not having been commenced within the period of 60 days after the decision as required by rule 56.02(1) and (2). The extension sought is to 26 March 2002, the date on which the present proceeding was commenced. Rule 56.02(3) provides, however, that the Court "shall not extend the time ... except in special circumstances".

95. The proceeding came before Master Wheeler on 2 May 2002. Master Wheeler heard the application for an extension of time, concluded that there were no special circumstances and dismissed the proceeding with costs. An appeal against those orders was heard by Osborn J on 17 June 2002. As provided by rule 77.05(7) the appeal was by re-hearing de novo. Also concluding that there were no special circumstances, on 18 June 2002 his Honour dismissed the appeal with costs.

98. Mr Mann now appeals to this Court on grounds stated in a notice of appeal dated 1 July 2002. In lieu of the orders below, he seeks orders extending the time for commencement of the proceeding, that the proceeding be remitted to the Trial Division for hearing, and costs.

101. That this appeal is against a decision not to extend the time in which to commence the proceeding, two consequences follow. First, the appeal is interlocutory in nature and requires leave under s.17A(4)(b) of the Supreme Court Act 1986.[18] The appellant, who appeared for himself[19], took the approach that leave was not required but, if it was, he asked that it be granted. The Court took the course of hearing the application for leave with the appeal. Leave will not be granted unless the decision in question was wrong, or at least attended with sufficient doubt to justify granting leave, and substantial injustice would be done if the decision was not reversed; see Niemann v Electronic Industries Lt d[20].

104. Secondly, the appeal is from a discretionary judgment and thus falls to be determined in accordance with the approach referred to in House v R[21]; Australian Coal and Shale Employees' Federation v Commonwealth[22]; Mace v Murray[23]. In Australian Coal and Shale Kitto J stated (at 627) that:

" ... the true principle in limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v The King."

108. A further introductory matter concerns the absence of a statement in the originating motion of the grounds on which the relief claimed is sought, as required by rule 56.01(4). The Master and the judge referred to this absence in their respective reasons for judgment. Nothing turns on this absence as at each stage the case has been dealt with on the basis of the submissions put by and on behalf of Mr Mann.

111. Doubtless to bring the originating motion into compliance in this respect, the appellant prepared and included in the appeal book an amended originating motion which set out the grounds on which relief was sought, the relief claimed also being amended by the addition of a series of paragraphs. The amendments raise issues as to the Board's powers and procedural fairness. The document stated that the amendment was made pursuant to leave granted by Master Wheeler on 2 May 2002. That is not correct. Not only is there no such order on the Court file but an affidavit sworn on 11 June 2002 (and filed on 12 June 2002) by Mr Mann's solicitor, Ms Edythe Hall, confirms that the Master did not make the order. The affidavit further states the intention of Mr Mann as being that if his appeal from Master Wheeler's orders was successful he intended to seek leave to file and serve an amended originating motion, a copy of which was an exhibit to her affidavit. This evidence explains why counsel who appeared for Mr Mann did not ask the judge to grant leave to amend, and his Honour's observation (as well as that of the Master) as to the absence of a statement of grounds. It is also consistent with Mr Mann's statement during the hearing on this appeal that the amendment had been prepared by his counsel.

114. The Court had regard to the purported amended originating motion as articulating the grounds which the appellant would rely upon, and the relief he would seek, if time was extended to permit the bringing of the proceeding. It is important however that this was not the originating motion that was before his Honour or the Master. The originating motion stood in its original form.

117. At this point it is convenient to refer to provisions of the Medical Practice Act 1994 as in force in 1996. Section 1 states the main purposes of the Act; they include - "(a) to protect the public by providing for the registration of medical practitioners, investigations into the professional conduct and fitness to practise of registered medical practitioners". An extended definition of "unprofessional conduct" is set out in s.3; among other meanings are the following:

"(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or (b) professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or (c) professional misconduct; or (d) infamous conduct in a professional respect;"

121. The Board is established by s.65(1) with a number of functions including - to investigate the professional conduct or ability to practise of registered medical practitioners and the imposition of sanctions where necessary, the administration of the Act, and other functions conferred on the Board by the Act (s.66(1)(c), (f) and (h)). The Board has all the powers necessary to enable it to perform its functions (s.66(2)).

124. Section 22 provided that a person may make a complaint about a registered medical practitioner to the Board. On a complaint being made, s.24(1) required that the Board investigate it "if the complaint concerns the professional conduct of a registered medical practitioner and if ... the Board has not determined the complaint to be frivolous or vexatious". Then s.24(2) required that the Board, in order to determine whether or not it is necessary to conduct a formal or informal hearing into a complaint, must conduct a preliminary investigation into the complaint. Section 24(3) permitted the Board to delegate the conduct of a preliminary investigation. Section 25(1) provided that upon completing a preliminary investigation, the person conducting it may make one of the following recommendations - (a) that the investigation should not proceed further; or (b) that an informal or formal hearing should be held into the matter. The Board must determine whether or not to act on such recommendations (s 25(2)). However, s.26 also provided that the Board may, of its own motion, determine to conduct a formal or informal hearing into the professional conduct of a registered medical practitioner without conducting a preliminary investigation. The consequence of deciding to hold an informal or formal hearing was that the Board must appoint a panel of its members for the purpose and fix a hearing (s.39 and s.46 respectively). Only a panel so appointed could make a finding of unprofessional conduct. Relevantly, the difference between a formal and informal hearing lay in the power of penalty. A formal hearing dealt with matters of unprofessional conduct of a serious nature, an informal hearing the converse, and the power of sanction differed accordingly. If on an informal hearing the panel finds the unprofessional conduct not of a serious nature it may determine that the practitioner undergo counselling, or be cautioned or reprimanded (s 43(2)). If on a formal hearing unprofessional conduct of a serious nature is found the panel has the power of determination of a panel at an informal hearing and additional powers including fine, suspension and cancellation of the registration of the medical practitioner (s.50(2)-(5)). Mr Mann was a registered medical practitioner at all material times. He practised as a surgeon.

127. Following an investigation the Board considered the complaint at a meeting on 3 October 1996. It decided that the conduct complained of did not constitute unprofessional conduct. Accordingly the Board did not resolve to hold a formal or informal hearing. The decision was minuted as follows:

"Dr A Mann - The Board considered all the documentation provided by Dr Mann and Mr P Bailey from Rockliffs, Solicitors which related to three alleged incidents of unprofessional conduct by Dr Mann namely: (a) excessive charging for an appearance in Court, (b) approaching the client of Rockliffs' direct seeking payment, and (c) using immoderate language in correspondence with Rockliffs. The Board determined that a letter be sent to Dr Mann advising him that it did not consider that the complaints of excessive charging and directly approaching the client of Rockliffs constituted unprofessional conduct. However the Board did find his language to be intemperate, but that action stopped short of constituting unprofessional conduct. Mr Bailey to be advised of the Board's findings. (A copy of the response is attached)."

131. The Registrar of the Board sent letters to Mr Bailey and Mr Mann, dated 8 October 1996, advising of the Board's decision. Among other things the letters referred to Mr Mann's "intemperate" language. As it is the references to his language that have so troubled him as to give rise to this, and other, litigation it is necessary to give some details of them.

"Dear Mr Bailey re: Complaint against Dr A Mann I refer to previous correspondence on the above matter. The Board discussed your complaints at its meeting held on Thursday last, 3 October. The Board believes that you had valid reason to feel aggrieved at the conduct of Dr Mann, particularly in regard to the intemperate language used in various exchanges of correspondence with you. The task for the Board however is to consider whether the various complaints made by you constitute "unprofessional conduct" as defined in the Medical Practice Act 1994 ("the Act"). To the extent considered relevant to your complaints, "unprofessional conduct" is prescribed in Section 3 to mean all or any of the following: "(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or (b) professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or (c) professional misconduct". As you will note, the Act is a relatively new Act, and there is little case law authority on the legal meaning of the above definition. However there seems to be a gradation in gravity as between paragraphs (a) to (c), with (a) being the least serious, and (c) the most serious. Dealing first with (c), the Board accepts the findings of the Courts that professional misconduct essentially means the deliberate departure from accepted standards in carrying out the practice of medicine. None of the complaints made by you impinge on Dr Mann's practice of medicine and therefore the Board's view is that (c) is not relevant. You may be aware that the main thrust of the Act is to be found in Section 1(a) and there it is stated to be the protection of the public. The Board considered that the complaint of excessive charging was essentially a contractual matter, and that the further complaint of Dr Mann approaching your client for payment of his fees, whilst justifiably irritating was at worst in all the circumstances an impudent act on the doctor's part. The Board does not therefore consider that these two grounds of complaint constituted unprofessional conduct under paragraph (a). Furthermore, the Board does not consider that they constituted unprofessional conduct under paragraph (b) for much the same kind of reasons. The Board deliberated for some time as to whether the intemperate language used by Dr Mann in a number of letters to you constituted "unprofessional conduct" under either paragraph (a) or (b). The Board considered that (b) was the more relevant provision, believing that Dr Mann's peers could readily believe that the language used by the doctor in his correspondence with you did nothing for the reputation of the profession. However the Board determined that whilst you had valid grounds for being aggrieved by it, it stops short of amounting to "unprofessional conduct" as defined in S. 3 of the Act. Dr Mann however was advised not to use such language in professional correspondence in the future. The Board thanks you for bringing the various matters to its attention."

138. It is stated in the judgments below that the word "impudent" appearing in that letter should have read "imprudent". The omission of the letter "r" was a typing error.

141. The letter to Mr Mann commenced by stating that the Board had considered whether his conduct complained of came within the first three defined meanings of unprofessional conduct and concluded that meaning (c) was not relevant. The letter continued:

"As you are doubtless aware, the main thrust of the Act is the protection of the public (refer Section 1(a)) and the Board's view was that the public interest was not adversely affected by the various grounds of complaint. The Board considered that the complaint of excessive charging was a contractual matter between yourself and Rockliffs and that the complaint of directly approaching the firm's client for payment of your fees, whilst justifiably irritating to Mr Bailey, was at worst an imprudent act on your part. In regard to the latter complaint, the Board considered that there were some mitigating circumstances associated with your behaviour in that you believed that the approach that you made was consistent with your view that the debt was owed by the litigant. Also the Board noted that the language used in the letter of request to the client was nothing other than moderate. An aspect of paragraph (a) which the Board considered at some length was whether the immoderate language used in your correspondence with Rockliffs constituted a lesser standard of conduct than which the public might reasonably expect of a registered medical practitioner. On balance, the Board's view was that the language used by you in some of the correspondence was of a kind where Mr Bailey had valid reason to feel aggrieved but that it did not amount to unprofessional conduct under paragraph (a). The Board considers that your description of the language as "robust comment" is certainly not apt. By a similar line of reasoning, the Board did not consider that the complaints of excessive charging and directly approaching the firm's client constituted "unprofessional conduct" under paragraph (b). Again however, the Board deliberated for some time as to whether your intemperate language as used in various letters to the firm constituted a lesser standard of conduct than that which might reasonably be expected of you by your peers. In all the circumstances, (and here the Board takes account of the tone of the responses made by Rockliffs), the Board finds that your language was intemperate and does nothing for the reputation of the profession. However, the Board finds that it stops short of constituting unprofessional conduct. For reasons that should be apparent to you, the Board advises you to desist from using such language in any professional correspondence in the future. Mr Bailey will be advised of the outcome of his complaint."

145. Mr Mann took the view that statements in his letter concerning his language constituted a reprimand, and that the advice not to use similar language in the future constituted a caution which the Board did not have power to give without a finding of unprofessional conduct at a formal or informal hearing. That is, having decided that there was no unprofessional conduct and, implicitly, not to proceed to a hearing, the Board was without power to reprimand or caution. The power to do so only arose on a finding of unprofessional conduct at a hearing.

148. Mr Mann sought, but the Board refused to provide, a copy of its letter to Mr Bailey. Ultimately, in November 1996 Mr Bailey sent him a copy.

151. The Board also refused requests of Mr Mann that it withdraw or suitably amend the "adverse findings and determinations" as Mr Mann described them. In his initial affidavit in support of the originating motion he identified these findings and determinations by underlining passages in the Board minute and the letters of 8 October 1996. The offending statement in the Board minute was that "the Board did find his language to be intemperate, but that action stopped short of constituting unprofessional conduct". The offending passages in the letters were those concerned with the intemperate language. In his affidavit Mr Mann contended that all of those words enunciated adverse findings and determinations by the Board about him. More precisely, he submitted that the decision of the Board, as stated in the minute and the letters, conveyed the following findings and determinations:

(a) that Mr Bailey had cause to feel aggrieved;

(b) that the appellant had:

* used intemperate language;

* acted impudently;

* acted imprudently;

* done nothing for the reputation of the profession;

(c) the Board advised (cautioned in fact) against the use of such language in correspondence with solicitors in the future.

157. I interpolate that in his submissions Mr Mann qualified these complaints. The qualification was that he did not challenge the minute which he described as innocuous. The minute had not been sent to himself or Mr Bailey. His complaint concerned the letters, in particular the letter to Mr Bailey. There was a disparity between the minute and the letters which "extended" the decision, and the letters should be regarded as themselves containing or stating a decision of unprofessional conduct, as the reprimand or caution could not otherwise have been imposed. Mr Mann said he would not have minded the letter to himself, it was the letter to Mr Bailey that gave rise to his concern.

160. Notwithstanding the refusal of the Board to amend or withdraw the "findings and determinations" Mr Mann did not commence a proceeding to set aside the Board's decision. He said that the Board did not advise him that he had a right to do so. In October 1997 the Registrar of the Board had suggested in a letter that he could take his complaint to the Ombudsman, but no other avenue of review or redress was suggested. Mr Mann said that he took that suggestion as implying that the Board believed that the Ombudsman was the only form of administrative relief available to him. I interpolate that Mr Mann was not cross-examined as to that belief and, further, that the reference in the letter to the Ombudsman was by way of example of how a person may "pursue their grievance elsewhere". The letter did not state that that was the only course open to Mr Mann.

163. It was in this state of knowledge, as Mr Mann states, that in November 1997 he commenced a proceeding in the County Court against the Board, its Registrar and a lawyer member of the Board for damages for defamation. The case had something of a tortured history. The Board (as the defendants may collectively be referred to) pleaded absolute privilege and qualified privilege in its defence. In March and November 1998 a County Court judge struck out those defences. The Board appealed by leave against the orders. On 26 May 2000 the Court of Appeal gave judgment allowing the appeal in respect of the plea of qualified privilege but refusing the appeal in respect of the plea of absolute privilege[24]. The case was tried in September/October 2000 followed by a written judgment in favour of the Board on 17 October 2000. The case was dismissed with costs. Mr Mann appealed. The appeal was dismissed on 10 April 2001[25]. Mr Mann applied to the High Court for special leave to appeal. The application was heard and refused by Gummow and Kirby JJ on 14 December 2000. In the course of Mr Mann's submissions Kirby J suggested that he apply to the Supreme Court to set aside the Board's decision as invalid and contrary to the rules of natural justice. Mr Mann further states that it was not until then that he became aware that he could make an application to set aside the Board's decision.

166. Following the hearing in the High Court Mr Mann wrote to the Board quoting Kirby J. He said that he gave the Board the opportunity to set aside its decision without further litigation. He received no reply.

169. In early 2002 Mr Mann applied to the Victorian Civil and Administrative Tribunal ("VCAT") to set aside the Board's decision. He did that to make sure that he could not obtain the relief he sought from VCAT. The attempt was unsuccessful as under the Medical Practice Act the decision of the Board was not reviewable by VCAT; see s.60(1) which limits review to a finding or determination made at a formal hearing, and certain other decisions none of which are relevant to this case. Accordingly, at a preliminary hearing on 28 February 2002 the application was dismissed for want of jurisdiction.

172. Following that decision, on 26 March 2002 Mr Mann commenced the present application.

175. I now refer to some matters personal to Mr Mann which he set out in his second affidavit in support of his application. This affidavit was affirmed while the appeal from the Master was pending. He graduated in 1953 since when he had never faced a disciplinary hearing before the Board or any other professional body. He was now reaching the end of his career as a medical practitioner. At the time of the impugned conduct he had retired from clinical practice and in his professional life depended almost entirely upon referrals from legal practitioners for medical consultancy services. It was important that his reputation remain unblemished and that the prejudicial effect of the Board's decision be corrected.

178. Although leave has not been granted in respect of it, it is useful to note the grounds on which the purported amended originating motion seeks relief. First, that having determined that Mr Mann had not engaged in unprofessional conduct, that no formal or informal hearing was warranted and that the matter not be investigated further, the Board had no power to determine to send, or send, the letters of 8 October 1996. At the heart of this ground is the contention that in the circumstances the Board had no power to make the finding of intemperate language recorded in the minute and to caution or reprimand Mr Mann as it did in the letters. Secondly, in sending the letters without affording him an opportunity to consider and respond to them, the Board denied Mr Mann procedural fairness. On these grounds the relief sought, in addition to the extension of time, is declaratory as to the lack of power and denial of procedural fairness, and an order setting aside the decision made on 3 October 1996 to send the letters of 8 October 1996.

181. It is appropriate at this point to refer to the reasoning by which his Honour concluded that Mr Mann had not established special circumstances. Dealing first with the decision of 3 October 1996 and the subsequent letters, he found that the actual sending of the letters, including the slip in terminology, were administrative actions which were not susceptible of judicial review under Order 56. He found that the critical matter complained of in the minute was properly characterised as a reason for the decision, namely the statement that "The Board did find his language to be intemperate but that action stopped short of constituting unprofessional conduct". He noted that the matter was expressly argued before him "as raising issues going to power and not as raising issues going to procedural fairness". He considered it difficult to accept other than that although the Board was not required to give reasons for a preliminary determination or to make findings of material fact, it was entitled to give short reasons to the complainant and to include a response to the facts relied on by the complainant. Such a course fell within the powers granted by s.66(1) and (2). Further, the first stated purpose of the Act supported the view that it is to be applied and interpreted for the benefit of the public. That view was supported by statements of Winneke P in his judgment in The Medical Practitioners Board of Victoria v. Mann, and of Brooking JA in his judgment in Mann v. The Medical Practitioners Board of Victoria. In each case the judgment was agreed in by the other members of the Court. In his judgment Winneke P said (at 624):

"By investing the board with certain powers and obligations, the Parliament has created the circumstances in which a privileged occasion will, or might, arise; but, as I see it, it does not intend to prescribe the limits or the scope of that occasion. If it were otherwise, the board would be prevented from the proper exercise of its powers and the fulfilment of the duties imposed upon it. The circumstances of this case point up the problem. The Act imposes the duty on the board to investigate complaints made to it by members of the public about the conduct of registered medical practitioners. It invests in the board the power to make a determination either to refer the complaint for "hearing" or not to proceed further with its investigation. The Act does not descend to the detail of directing the board to inform the complainant of its determination "not to proceed", or to prescribing the limits of the information to be provided. Those limits, as I have said, will be prescribed by the nature of the relationship existing between the board and the complainant and the scope of the common interest or duty arising from that relationship. It would, I think, be illogical - and potentially destructive of the relationship - if the board were to be confined to informing the complainant that it had determined not to further investigate his complaint without informing him of its reasons for so concluding."

185. In his judgment in the later case Brooking JA referred to the judgment of the trial judge who found that in sending the impugned letters the Board was endeavouring to explain the reasoning process which had led to its decision. The judge went on to say, in a passage which Brooking JA quoted (at [33]):

"The practice in the past, so the material indicates to me, of simply announcing what the decision was and going no further, had been the subject of some criticism and, in my view, justifiable criticism. So the Board adopted a view which was at variance with the previous practice and has in more recent times adopted the course of explaining the reason why it reached its decision. [I interpolate that there was evidence that criticisms by the Ombudsman had led the Board to explain its decisions.] It is my opinion that in doing so the Board is quite clearly exercising the power and authority given to it under the Act and is acting responsibly and in the best interests of the public which it is trying to protect or has the charge of protecting under the Act. It is clearly the duty of the Board to set out the reasons why, in particular, when a complaint has been made and the Board has decided not to take any action about it of disciplinary nature against the medical practitioner concerned, to explain to the complainant and to all those who might have some interest in the subject, why it reached the decision it did. To my reading of the minute and the letters, they are saying no more in the ultimate than: the language which had been employed by Mr Mann, whilst not amounting to professional misconduct, was language which could have been improved upon; it was intemperate - and the Board's words in his action approaching the client was `imprudent' but actually printed and sent was `impudent'. The Board's conclusion that it did not amount to professional misconduct or unprofessional conduct was a conclusion which was justified, in my view, in the circumstances. But it was also justifiable in the circumstances that the Board should note that the exchange between Bailey and Mann deteriorated as time went by, as is demonstrated more clearly by reading the correspondence, than any words of mine can describe. It is there for all to see and that is why I have set it out at such considerable length. It was germane, in my view, to the Board's function that its reasoning path should be explained, particularly to the complainant and particularly, in circumstances where the Board expresses itself, to be able to understand why it was that Mr Bailey became `aggrieved' in the circumstances. Whilst the Board could understand his aggrievement it was germane, in my view, for them to point out that their authority was to impose disciplinary action for unprofessional conduct and the choice of words, whilst regrettable, are not choice of words that they would have recommended, was that Mr Mann's way of expressing himself. It was a way that they did not commend and did not enhance the reputation of its profession. This seems to me to be a wholly acceptable line of conduct on the part of the Board and for that reason and in conformity with the test as set out in the judgment of the President in this case, it was in my view, quite clearly an occasion covered by a qualified privilege."

"I think the judge was right. In my opinion the defence of qualified privilege availed the defendants under both the law of Victoria and that of New South Wales, unless malice was established by the plaintiff. I reject Mr Mann's contention that the Board was not acting in the exercise of its statutory power."

193. In light of these statements, and not withstanding the comments of Kirby J, his Honour considered that the application to set aside the decision had no real prospect of success.

196. His Honour then turned to the question of special circumstances. He expressed the view that it is not appropriate to judicially define the meaning of the phrase. The phrase is deliberately flexible and designed to encompass cases which might not easily be anticipated by more prescriptive words. He referred (without setting them out) to the authorities cited by Balmford J in Prencipe v. Nisselle[26] in a passage quoted by her Honour in Carra v. Hamilton[27], and Jess v. Scott[28]. He added that argument as to the meaning of the phrase by reference to dictionaries and synonyms was of little assistance. Despite those views he made some observations as to the meaning and application of the phrase, as follows. First, while every case is special to the litigant concerned, the rule requires the Court to be objectively satisfied that special circumstances exist. Secondly, the existence of special circumstances is to be determined by reference to all the circumstances of a case. It is a question of characterising those circumstances. Thirdly, the rule does not limit the circumstances to those connected with reasons for delay. Fourthly, the existence of a manifest or strongly arguable case of administrative or legal error may be a relevant consideration. Thus a manifest excess of jurisdiction might in some cases amount to special circumstances. As to this however, he acknowledged that an error in a decision did not automatically result in special circumstances for if it did there would be little point to the 60 day time limit in the rule. In that regard he referred to Denysenko v. Dessau[29] where Beach J refused an application for judicial review of a Magistrate's decision holding that the fact that the decision "was demonstrably wrong cannot constitute a special circumstance within the meaning of the rule".[30] His Honour said that he would not go as far as Beach J in discounting the existence of an apparent error of law as a potentially relevant consideration.

199. His Honour concluded that he was not satisfied that Mr Mann had demonstrated special circumstances. He noted the following:

(a) The delay - approaching six years - was excessive and would require a very strong case of countervailing circumstances to justify the grant of leave.

(b) The pursuit of other remedies did not justify the delay. Resort to the Supreme Court appeared to have occurred as a last option.

(c) The ultimate conclusion was not adverse to the applicant. That made the concept of a vitiating error in the Board's conduct very problematic. It also mitigated against the case being special.

(d) The proposition that the Board had exceeded its power was neither correct nor strongly arguable.

(e) The statements of Kirby J were an indication of a form of proceeding and not a concluded view as to the powers of the Board or as to the appropriateness of a future proceeding in this Court.

(f) The Board was under no obligation to give legal advice to the applicant, although the defences in the defamation proceeding might be thought to have pointed directly to the question of the Board's power.

(g) Professed ignorance as to the remedies potentially provided under Order 56 did not constitute special circumstances; see Lawecki v. Marcel Kalfus & Co[31].

205. Finally, his Honour observed that even if his discretion had not been conditioned by a requirement of special circumstances, he would not have exercised the discretion to extend time, particularly given the extent of the delay.

208. I turn then to Mr Mann's submissions on this appeal. He addressed first his Honour's conclusion that the substantive case that the Board had exceeded its power was neither correct nor strongly arguable. He then addressed the matter of special circumstances. As to the first issue he stated, as already mentioned, that he had no complaint with the minute of the Board's decision. But that was not the decision of which he complained. The decision of which he complained, and which he wished to have set aside, was that contained in the letters of 8 October 1996 concerning his intemperate language. The findings and determinations on that matter in those letters greatly extended the decision recorded in the minute and constituted a decision to reprimand and caution him. Implicit in this was a finding of unprofessional conduct, as the Board had no power to reprimand or caution without such a finding at a hearing. In these circumstances his Honour should have concluded that the letters contained or reflected a decision on the intemperate language, that it was reasonably arguable that the Board lacked power to make that decision, and that Mr Mann had been denied procedural fairness in that he had not been afforded an opportunity to respond to the contention. It is important to note in relation to this submission that Mr Mann did not challenge the statement of his Honour that the case before him was argued on the issue of power and not as raising issues going to procedural fairness.

211. On the second matter of special circumstances, Mr Mann commenced by referring to the definition of the word "special" in the Macquarie Dictionary, in particular to meanings 6 and 7, viz "6. Distinguished or different from what is ordinary or usual: a special occasion. 7. extraordinary; exceptional; exceptional in amount or degree; especial; special importance". This case was special because the Board had condemned him without giving him a hearing. For this purpose Mr Mann relied on his earlier submission as to the Board's lack of power.

214. Mr Mann then referred to a number of copy letters obtained on discovery in the defamation proceeding, which the Board had sent to complainants in 1996 and 1997, and being cases where the Board had not referred the complaint to a hearing. Mr Mann submitted that some of the letters included statements concerning the medical practitioner which the Board was not empowered to make in the absence of a hearing and a finding of unprofessional conduct. These, he submitted, reflected the fact that the Board had no proper understanding of its powers. The Board was bypassing the proper process and dispensing reprimands and cautions without the requirement of a hearing. The Board wished to impose a petty tyranny upon medical practitioners, in his case by censoring lawful communications. Hence, the present case provided an opportunity to correct the Board's errors, and was thus of importance to the medical profession generally. I note that it was not every letter that transgressed the line, it was some but not all of them and the point of transgression to a decision without power lay in Mr Mann's assessment of the terms of the letters. That is to say, he did not cavil with every observation of the Board on the conduct in question, or of advice to the doctor, the objection rested on Mr Mann's qualitative assessment of the terms of the letters. It should also be observed that these letters were concerned with other cases about which no complaint is brought to the Court by those involved; they are extraneous and irrelevant to the present case.

217. Mr Mann further submitted that there should not be a time limit on a medical practitioner wrongly convicted of misconduct seeking to redress that wrong. He based this submission on an analogy with the ability of the Board to investigate the conduct of a medical practitioner regardless of when that conduct occurred.

220. This is, in my view, a sufficient reference to the matters relied on by Mr Mann as constituting special circumstances. I have not set out all of the remarks he made concerning the Board, or all that he stated under this heading in his written materials. Those materials include his further affidavits of 10 September 2003 and 21 April 2004 which were not, of course, before his Honour.

223. Counsel for the Board submitted that his Honour's analysis and conclusion on the matter of the Board's decision and its powers was correct. That is, the Board having decided that there was no unprofessional conduct it implicitly decided not to proceed to a formal or informal hearing, and the letters merely set out or explained the Board's reasons for decision, as the decisions of the Court of Appeal established had been proper to do. It was implicit in the power to explain that the Board could say what it did in the letters concerning Mr Mann's language, including advising him not to use such language in the future. The letters did not contain a decision of unprofessional conduct by Mr Mann. The decision was that contained in the minute. His Honour emphasised that the case argued before him, and which he was required to consider, was concerned only with power and not with issues of procedural fairness. I note that his Honour was careful to state this in his reasons, doubtless because of the reference to natural justice in the observation of Kirby J quoted in Mr Mann's affidavit and the transcript of the special leave application exhibited to the affidavit.

226. As to special circumstances, counsel for the Board generally submitted that his Honour's analysis was correct.

229. Neither party challenged his Honour's consideration of the meaning of the phrase "special circumstances" and his observations as to its application. Mr Mann differed, of course, as to the ultimate conclusion.

232. The phrase "special circumstances" has a long history of usage and many cases can be found in which its application has been considered. The cases referred to in Prencipe constitute a sufficient reference for present purposes. In addition, by way of a couple of examples, see Holpitt Pty Ltd v. Vorimu Pty Ltd[32], and Springfield Nominees Pty Ltd v. Bridgelands Securities Ltd[33]. The cases indicate that what is special is that which is not general in character, as it was simply stated in Lines v. Hersom[34]. One of the cases cited in Prencipe was In re Norman[35], where the question before the Court of Appeal was whether special circumstances existed which had warranted the judge referring a bill of costs to taxation despite the passage of 12 months since its delivery to the client. Lopes L.J. said (at 677):

"The statute uses the words "special circumstances". Those are wide, comprehensive, and flexible words, and I think that the legislature intended them to be so, and that no Court can or ought to lay down any exhaustive definition of them. Charges which in one case would be special circumstances, in another would not be such. It is for the discretion of the judge to say what are special circumstances in a particular case. I cannot express my meaning better than by adopting the words of Bowen, L.J. in In re Boycott when he said: "Special circumstances, I think, are those which appear to the judge so special and exceptional as to justify taxation. I think no Court has a right to limit the discretion of another Court, though it may lay down principles which are useful as a guide in the exercise of its own discretion. It seems to me to be the true view of the statute, that there must be special circumstances making the payment differ from an ordinary payment, and that the judge thereupon has a discretion as to whether they are sufficient to authorize taxation". That is entirely in accordance with my view, and expresses what I desire to convey."

236. In Holpitt Burchett J considered whether special circumstances existed to warrant leave being given to use in a proceeding documents which had been obtained on discovery in another proceeding. At 578 he said of the expression "special circumstances" that:

" ... it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context."

240. Thus understood, resort to the dictionary for the meaning of "special" is hardly necessary, and carries the risk of diverting one from the general and well understood sense of the phrase, and the flexibility inherent in it. Nevertheless it may be seen that the understood sense accords with the first meaning of the word special, as an adjective, in the Oxford Dictionary, namely "Of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality, or degree". Of course, it is important that such reference to the dictionary not be for the purpose of, or result in, placing a gloss upon the generality of the phrase "special circumstances", indeed that would be inadmissible, and that I think is what his Honour warned against together with the risk of being diverted from the accepted meaning of the phrase by emphasis upon a meaning or two in the dictionary definition.[36] But the meaning I have set out accords with the ordinary meaning of the phrase as one would understand it, and as it has been understood.

243. His Honour's concluding observations on the application of the phrase concerned the question whether error in the decision under review could constitute a special circumstance. His observations were obiter in view of his conclusion that the decision of the Board was not affected by error. Nevertheless, as his observation conflicts with the absolute statement of Beach J in Denysenko, I should say something about the issue. There were two reasons for Beach J's conclusion. First, a holding that an erroneous decision constituted a special circumstance would result in an aggrieved party being able to ignore the 60 day requirement knowing that he or she could successfully apply for an extension of time when minded to do so. Secondly, error in decision making by a judicial officer, whether of fact or law, was not "special". Neither of those factors can be denied, at least in the absence of other factors. It may however be considered that the generality of the phrase, for the evident purpose of comprehending an infinite and unforeseeable range of circumstances, would indicate that Beach J expressed the proposition in terms that were too absolute. In other words, in a particular case an approach that absolutely excluded error as a factor, no matter what the circumstances and nature of the error, may produce unintended injustice. I would leave the question open for consideration in an appropriate case.

246. In my view his Honour made no error of principle in his consideration of the meaning of the phrase special circumstances.

249. I turn then to the question whether Mr Mann has established that the decision that there were no special circumstances was clearly wrong.

252. At [33] I referred to the matters his Honour took into account. And at [35] - [39] I referred to Mr Mann's submissions on this appeal. His case is that taking all relevant factors into account his Honour should have found special circumstances were established.

255. As to the matters Mr Mann expressly submitted on this appeal, I am of the following view. As to the decision of the Board, his Honour's conclusion that the decision was to be found in the minute and that the letters gave reasons for or were explanatory of the decision, answered the question of power. That was the issue raised for consideration by Mr Mann's counsel. While the questions of qualified privilege and whether the Board had found unprofessional conduct without a hearing are different, yet the reasoning in the earlier Court of Appeal judgments was apposite for his Honour to consider in concluding as he did. In my view, regarding the minute and the letters, it cannot be said that his Honour's conclusion as to their proper understanding was clearly wrong.

258. I am of the same view in relation to the factors his Honour considered in concluding that special circumstances were not established. That is, the factors were relevant considerations and there was no clear error in taking them into account or in the views his Honour expressed concerning them.

261. As to the matters referred to by Mr Mann in his submissions, his reliance on letters arising in the Board's handling of complaints concerning other medical practitioners cannot avail him in this case which is concerned with the disposition of Mr Bailey's complaint. The other matters are irrelevant. Further, even if it might have been possible to achieve relevance for the letters, in the absence of a proper evidentiary foundation for the use of the letters, they could not properly be considered. The same lack of foundation exists for the asserted general disquiet in the medical profession, and the asserted petty tyranny. In addition, it is not clear to me that the letters, which very much went to establish his statement that the Board had improperly handled hundreds of cases and that this case was of general importance to the medical profession and the Board, were actually before his Honour. Mr Mann provided them on this appeal by handing them up in a folder.

264. Then, Mr Mann's submission that there should not be a time limit on a medical practitioner was misconceived. In the guise of raising a factor as a special circumstance the submission would, if upheld, simply negate the time limitation in rule 56.02(1). That the Board may lawfully investigate conduct of a medical practitioner without restriction of a time limitation could not constitute a special circumstance, at least in the present case.

267. In my view none of the matters put by Mr Mann in his written and oral submissions as constituting special circumstances were matters which his Honour should have considered as special circumstances, and none of them cause me to consider that his Honour erred in the exercise of his discretion.

270. In my view the conclusion that special circumstances were not established was not clearly wrong as that expression is used in the authorities on appeals from discretionary judgments to which I referred earlier. But to appeal Mr Mann first requires leave to appeal and that application is to be determined on the basis mentioned earlier. It is sufficient to say that for the reasons discussed I am not of the view that the decision is wrong or attended with sufficient doubt so as to warrant a grant of leave. I add that counsel for the Board expressly did not submit that there was not prejudice to Mr Mann. Accordingly, in expressing this conclusion I have accepted that there is prejudice to Mr Mann. Nevertheless in view of the conclusions otherwise reached I would not grant leave to appeal.

273. For these reasons I would refuse leave to appeal and dismiss the appeal with costs.

[1] The Medical Practitoners Board of Victoria v Mann [2000] VSCA 89; (2000) 1 VR 609 esp. at p.624 [38], per Winneke P; Arnold Mann v The Medical Practitioners Board of Victoria & Anor [2001] VSCA 51 at [33] and [34] per Brooking, J.A.

[2] The Medical Practitioners Board of Victoria v Mann [2000] VSCA 89; (2000) 1 VR 609.

[3] cf. Marek Kuligowske v Metrobus [2004] HCA 34 at [52].

[4] Annetts v Mc Cann [1990] HCA 57; (1990) 170 CLR 596 at p. 598; Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at p.36.

[5] Mobil Oil Australia v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at p.491.

[6] Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at p.109.

[7] Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at p.395; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at p. 491.

[8] Re Refugee Tribunal; Ex parte Aala(2000) [2000] HCA 57; 204 C.L.R. 82 at p.121[101], per McHugh J, citing Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 at pp. 820-821.

[9] Ex parte Aala, ibid at pp 91-2 and p.101[41], per Gaudron and Gummow JJ_; XD v Johnson_ [2002] VSC 329; (2002) 6 VR 372 at p. 375[11].

[10] Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 at p.50; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at p.415; Hanna v Patricia O''Shane [2003] NSWSC 1055 at [14] - [18].

[11] Gudgeon v Greg Black, Chief Executive Officer Ministry of Education (1994) 14 WAR 158, BC 9402034 at p.36.

[13] cf. Macksville District Hospital v Mayze (1987) 10 NSWLR 708 at pp.718-9, per Kirby P; Gudgeon v Greg Black, supra at BC 9402034 at p.18.

[14] [1969] 2 QB 538 at p.555 and at p.559, per Lord Parker CJ and at p.560 per Blain J.

[15] Gerlach v Clifton Bricks Pty Ltd ([2002] HCA 22; 2002) 209 CLR 478 at 485[13].

[17] Suttor v Gudowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at p.438; Universtiy of Wollongong v Metwally [No.2] (1985) 59 ALJR 481 at p.483; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at p.8; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [51]

[18] See Hall v. Nominal Defendant [1966] HCA 36; (1996) 117 C.L.R. 423; Carr v. Finance Corporation of Australia [No 1] [1981] HCA 20; (1981) 147 C.L.R. 246; In the matter of Luck [2003] HCA 70; (2003) 78 A.L.J.R. 177.

[19] As he did before the Master although he was represented by counsel before the judge.

[20] [1978] VicRp 44; [1978] V.R. 431.

[21] [1936] HCA 40; (1936) 55 C.LR. 499 at 504-505.

[22] [1953] HCA 25; (1953) 94 C.L.R. 621 at 627.

[23] [1955] HCA 2; (1955) 92 C.L.R. 370 at 378.

[24] The Medical Practitioners Board of Victoria v. Mann [2000] VSCA 89; (2000) 1 V.R. 609.

[25] Arnold Mann v. The Medical Practitioners Board of Victoria [2001] VSCA 51.

[26] [1999] V.S.C. 137.

[27] [2001] VSC 215; (2001) 3 V.R. 114.

[28] (1986) 12 F.C.R. 187.

[29] [1996] VicRp 65; (1996) 2 V.R. 221.

[31] [1985] F.L.C. 91-644.

[32] [1991] FCA 269; (1991) 29 F.C.R. 576 at 578-579.

[33] (1992) 110 A.L.R. 685 at 691-693.

[34] [1951] 2 K.B. 682 at 688 and 692.

[36] Cf the discussion in Prencipe as to the fit of "extraordinary" or "exceptional" matters in "special circumstances".