Did the Committee err as alleged?
32 The core issue or question, as the applicant put it, is whether the designation of grounds of review limits the scope of the review or is merely a gateway to the exercise of the powers of review. It is common ground that this is a question of statutory construction. As the University submitted, like an "appeal", a "review" has "no settled pre-determined meaning"; rather, "it takes its meaning from the context in which it appears" (Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261 per Mason CJ, Brenann and Toohey JJ), from full merits review involving a hearing de novo to a process which is confined in some way, such as in scope or as to the material to be considered or to the consideration of specified grounds.
33 In my opinion, the review miscarried. Properly construed, the Appeals Rule requires an Appeals Committee to review the Nominee's decision and the review is not limited to, or concerned solely with, the disposition of the grounds of review. Rather, as the applicant contended, the grounds provide a gateway to merits review. In limiting its consideration to whether the findings of the Nominee were open to him, the Appeals Committee constructively failed to exercise its jurisdiction. It misconceived its role or misunderstood the nature of its jurisdiction or duty or the nature of the opinion it was required to form: Ex parte Hepburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ); Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 at [80] (Gaudron J).
34 The following features of the scheme point strongly to that conclusion.
35 First, at the hearing of the review application both the Registrar and the student have an unfettered right to call and question witnesses (AR, ss 22(2) and 23(1)). In an appeal in the strict sense there is no right to adduce evidence. In an appeal by way of rehearing, "fresh" or "further" evidence may only be adduced with leave. As the applicant submitted, the conferral of an unfettered ability on the parties to call witnesses and adduce new evidence is "antithetical" to a limited right of review.
36 Second, the rights given to the student are significantly broader on review. Whereas on review the student may call and question witnesses, there is no equivalent right given to the student at the inquiry. Although the potential consequences for the student of an adverse finding are serious, the Discipline Rule does not give the student a right to question or confront their accuser or others upon whose untested accounts the original decision-maker may rely.
37 Third, the right to call and question witnesses on the review is not limited to any particular ground of review.
38 Fourth, the Discipline Rule does not require the original decision-maker to make or keep a record of what takes place during the inquiry.
39 Considerations of this nature are relevant to determining the nature of an appeal to a court from an administrative authority. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621 Mason J, with whom Barwick CJ and Stephen J agreed, observed that:
There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo… The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what had taken place there. The authority may not be bound by the rules of evidence of the issues which arise may be non-justiciable … In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or a hearing de novo.
40 Sixth, if the respondents' construction were correct, there would be no need for s 21.
41 Seventh, the powers exercisable by the Appeals Committee are very similar to the powers given to the Administrative Appeals Tribunal (AAT) in reviewing administrative decisions: see Administrative Appeals Tribunal Act 1975 (Cth), s 43(1). Both include a power to confirm, vary, set aside the decision, and set aside the decision and make a fresh decision in substitution for the decision set aside. The only difference, which I do not consider significant, is the power given to the AAT to remit a decision to the original decision-maker. The AAT's obligation is to review the merits of the original decision and determine whether that decision was the correct or preferable one on the material before it, not whether the decision of the original decision-maker was the correct or preferable one on the material before them: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; 46 FLR 409 at 419 (Bowen CJ and Deane J).
42 The fact that the Appeals Rule requires a review to be brought on one or more grounds is not significant and certainly not decisive.
43 Appeals from decisions of the Registrar of Trade Marks and the Commissioner of Patents, for example, must be brought on "grounds", which are to be stated and particularised in the notice of appeal (Federal Court Rules 2011 (Cth), rr 34.24. 34.26). Nevertheless, in each case the appeals are appeals in name only. The "appeal" is a de novo hearing in which the court's task is not to correct error on the part of the original decision-maker but to deal with the original controversy afresh: New England Biolabs Inc v F Hoffmann-La Roche AG (2004) 141 FCR 1 at [44] (Kiefel, Allsop and Crennan JJ); Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71; 367 ALR 393; 142 IPR 1 at [228] (Burley J). Thus, in the case of a trade marks appeal, for example, just like a tribunal conducting merits review, the court "stands in the shoes" of the Registrar and determines on the evidence before it whether the opposition to registration should succeed: Registrar of Trade Marks v Woolworths Ltd (1999) 93 FCR 365 at [32]-[35] (French J, Tamberlin J agreeing at [104]).
44 The applicant relied on McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609 in which the NSW Court of Appeal held that a review of a medical assessment by a review panel under s 63 of the Motor Accidents Compensation Act 1999 (NSW) extends to the whole of the medical assessment, and is not limited to the grounds particularised in the application.
45 Section 63 relevantly provided:
(1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.
(2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.
(3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
…
46 Giles JA, with whom Allsop P agreed, considered s 63 in its statutory context, noting (at [25]) that, under s 63, the party making the application in accordance with subs (1) applies for referral of the medical assessment, not for referral of part of the medical assessment and that subs (2) speaks of the medical assessment, not part of the medical assessment, being incorrect in a material respect. At [26] his Honour said that s 63(2) and s 62(3) "implicitly require a statement of grounds of correctness in a material respect, which the proper officer can consider in order to be satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect 'having regard to the particulars set out in the application'", and then "the proper officer arranges for 'any such application' to be referred to a review panel, that is, the application itself". At [27] his Honour rejected the notion that reference of the application carries with it only "the grounds of incorrectness in a material respect" and that the review panel's assessment is confined to "that incorrectness". He wrote:
In my opinion, that is not the proper construction of s 63. The referred application is still an application to refer the medical assessment. There is inelegance in referring to the review panel an application to refer a medical assessment to the review panel, but the review panel plainly does more than decide whether it will accede to the application to refer the medical assessment to it. What the review panel receives is a reference to it of the medical assessment. Section 63(2) and s 63(3) do not cut this down. Section 63(3) provides a filter mechanism. Section 63(2) in terms limits the grounds for making an application, although no doubt its effect is that a review panel cannot issue a new certificate if it considers that any incorrectness in the medical assessment was not in a material respect, but it does not otherwise affect the performance by the review panel of its task of either confirming the medical assessor's certificate or issuing a new certificate expressing its own assessment of the matter or matters referred for assessment.
47 At [29] his Honour referred to the significance of medical assessments and the consequences that could flow from limiting the review to the grounds particularised in the referral application:
I have described the significance of medical assessments. A medical assessment can have a profound effect on a claimant's recovery, to the perceived detriment of the claimant or the insurer. The legislature has provided for review by a review panel so that a dissatisfied party to a medical dispute can seek redress, as is appropriate given the significance. The dissatisfied party may have particularised the grounds for incorrectness in a material respect, but it would be harsh if the review panel did not have power to entertain altered, added or substituted grounds. (The Medical Assessment Guidelines, to which medical assessments are procedurally subject (s 65), provide that application under s 63(1) must be made within thirty days of receipt of the medical assessor's certificate (cl 10.1), without ability to extend time (cl 10.3).) Ignorance or mistake should not be penalised, and there can be second thoughts; the significance of a medical assessment is such that restrictions on getting it right should not readily be found to have been intended by the legislature.
48 While the analogy is an imperfect one, the majority's reasoning applies equally to the Appeals Rule. Here, it is the application for review which is referred to the Appeals Committee, not the grounds of review (s 13) and the Appeals Committee conducts a hearing of the application for review, not the grounds (s 22). The University has provided for a review by the Appeals Committee to enable a dissatisfied student to seek redress. An adverse determination can have a grave effect on the student's mental health and career path, particularly for a student who is working towards a career, like the law, where it is a condition of admission to practice that the student is "a fit and proper person". The prospect of incorrect particularisation of the grounds is no less likely. Under the Appeals Rule, an application for review must be made within 20 working days after the student is notified of the decision. While the Appeals Rule does provide for an extension of time (s 9(1)(b)), any decision to extend time is in the discretion of the Registrar and no provision is made for the review of a decision to refuse to exercise it in the student's favour.
49 The respondents relied on the following passage in the judgment of Basten JA at [66];
If the medical assessment were at large before the review panel, there would be a limited purpose in referring the application to it. By contrast, the provision for referral of the application indicates a clear purpose, namely to notify the review panel of the extent of the dispute which it is being asked to resolve. To effect that purpose, the review panel should be understood to be restricted to considering the errors identified in the application.
50 But Basten JA was in dissent.
51 The respondents submitted that this case is distinguishable from McKee because there is no filtering or gatekeeping function akin to that upon which the Court relied in McKee. I disagree. Section 12 of the Appeals Rule is of this nature.
52 The respondent also emphasised that what is referred to the Appeals Committee is an application for referral, not an application for review. But that is a distinction without a difference. The application for referral is an application to the review panel for the review panel to conduct a review.
53 As the applicant submitted, on a proper construction of the Appeal Rule, the grounds of review do not define the scope of review or limit the powers of the Appeals Committee. The purpose of the grounds is to identify whether the application should proceed to a review. Once a valid application is made, the Appeals Committee "stands in the shoes" of the Nominee. It is required to consider all the material before it, make witnesses available for questioning if requested, take evidence from witnesses, if any, that the student may wish to call, hear from the Registrar and the student, and determine whether the complaint is made out to its satisfaction.
54 It follows that I am satisfied that, by limiting its consideration to the grounds of review and failing to consider for itself whether the complaint was made out, the Appeals Committee took too narrow a view of its own jurisdiction or powers. That was an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 352 (Mason CJ). It is unnecessary in the circumstances to consider whether it was also an improper exercise of the power conferred upon the Appeals Committee.