Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163

**1 The appeal seeks to set aside a refusal by a judge of the Trial Division to grant leave to appeal from a decision of the Victorian Civil and Administrative Tribunal ('the Tribunal'). The Tribunal found that the appellant, Dr Myers, had engaged in 11 acts of unprofessional conduct as defined under s 3(1)(a) and (b) of the Medical Practice Act 1994.[1]

2 The allegations of unprofessional conduct by Dr Myers relate to his treatment of two elderly patients, called hereafter Mr A and Mrs A. The couple had a son, Mr B, who suffered schizophrenia; a daughter-in-law, Mrs B, who took some responsibility for their care; as well as a granddaughter, Ms C. Essentially, Mr A and Mrs A lived at home assisted by Mrs B who arranged their shopping and financial affairs. Also relevant to the contentious events is a Dr Jaworowski, Mr A and Mrs A's general practitioner since 1982.

3 By September 1999, Dr Jaworowski observed that Mrs A, born in 1915, was suffering from some paranoid ideation and extreme anxiety. These observations were based on some statements made by Mrs A regarding 'the daughter-in-law, the cleaning lady, and about people doing her harm.'[2] In early 2000, Mrs A was admitted to hospital suffering from a number of physical conditions.[3] During this period, Dr Jaworowski referred Mrs A to the appellant, a geriatrician by the name of Dr Myers, who treated her until her death on 15 June 2001.

4 In very early May 2000, Dr Myers convened a meeting to make arrangements for the discharge of Mrs A from hospital. Mrs B opposed the discharge of Mrs A because, among other matters, she did not regard it as safe for Mr A and Mrs A to be left alone at their home. This disagreement as to the future treatment of Mrs A caused the disintegration of the relationship between Dr Myers and Mrs B from that time onwards.

5 Despite this disagreement, on 3 May 2000, Mrs A was discharged from hospital and returned home. On 7 May 2000, Dr Jaworowski referred both Mr A and Mrs A to Dr Myers for out-patient care. Without consulting Mrs B, Dr Myers arranged for carers to attend at the house of Mr A and Mrs A. These people, who came to their home from 8 am to 8 pm each day, were not healthcare professionals.

6 Whilst Mrs A was in hospital earlier that year, Mr A was noted by an aged care service to be suffering from dementia, poor orientation and short term memory, limited insight and poor comprehension. Mr A was assessed and approved for low-level hostel care. In mid-March 2000, Dr Jaworowski assessed Mr A as suffering from moderate dementia. After March 2000, Dr Jaworowski noted a 'progressive decline in cognitive functioning with confusion, poor memory and poor orientation, difficulties with self-care and mobility, and progressive muscular weakness.'[4] In May 2000, after a meeting with Dr Myers, Mr A wandered from home and was missing for over six hours.

7 Between May 2000 and June 2001, Dr Jaworowski continued to attend to Mr A and Mrs A, visiting them at home every two months and prescribing them medication. This treatment was in consultation with Dr Myers and another doctor, Dr Taubman.

8 By April 2001 separate medical assessments had been made that Mr A was incompetent and that Mrs A was suffering a progressive mental decline. On 11 April 2001, upon the direction of Dr Myers, Mrs A underwent an aspiration procedure. She was discharged soon after the procedure. Upon her return home, she quickly became unwell and Dr Myers attempted, without success, for her re-admission to two separate hospitals. On 13 April 2001, upon the direction of Dr Jaworowski, Mrs A was urgently admitted to Epworth Hospital. She was placed under the care of a physician, Dr Robert Lefkovits (who was described as 'the bed card doctor'). After some primary investigations, it was clear that she was suffering from a terminal malignancy.

9 On the 26 April 2001, at the instigation of a social worker, Ms Wilkie-Smith, Mrs A underwent an 'Aged Care Assessment' by one Dr Michael Hum. His assessment was that, given Mrs A's functional dependence, supporting her at home would be difficult. He recommended various options, all of which involved Mrs A remaining in care in one respect or another. Following this, deliberations went on between Dr Hum, Ms Wilkie-Smith, Dr Lefkovits, Mr B and Mrs B as to the appropriate care for Mrs A. On 10 May 2001, Mrs A's family requested that Ms Wilkie-Smith place Mrs A on a waiting list at a palliative care facility, Bethlehem Hospital. On 15 May 2001, she did this. On the same day, Dr Myers, who had continued to see Mrs A at the Epworth Hospital, notwithstanding he was not her primary physician, contacted the Office of the Public Advocate to complain that Mr A had not been involved in the decision-making process concerning Mrs A's future care. An employee of that office made enquiries of Ms Wilkie-Smith as to what had occurred and was satisfied as to what she found. Further, Dr Myers persisted in pressuring Dr Lefkovits that the most appropriate course was for Mrs A to return home. Dr Myers told Dr Lefkovits a number of times that Mrs A should be at home and had carers available. Dr Lefkovits took at face value Dr Myers' assurances that the carers who would attend on Mrs A and Mr A at home were adequately trained. By this stage, Mrs A was not eating, drinking or responding to Mr A. She was dying and required twenty-four hour nursing care.

10 Dr Lefkovits, together with Ms Wilkie-Smith, considered that the most appropriate person to make the decisions as to Mrs A's future treatment was Mrs B. During this period, Dr Lefkovits recorded in Mrs A's hospital files entries including:[5]**

'Contd unrelenting pressure from Dr Myers re discharge to home - I am happy for her to go home or Bethlehem depending on family's final decision. The daughter-in-law has power of attorney.

I believe the most appropriate person to make decision is daughter-in-law...'

**11 On 21 May 2001 Ms Wilkie-Smith held another meeting to resolve the issue. At this point it was clear, if it was not clear before, that the views of the family diverged with that of Dr Myers; Mrs B and Mr B thought that in-patient palliative care was appropriate for Mrs A whilst Dr Myers wanted Mrs A to return home.

12 On the same day, Dr Myers witnessed the execution of a revocation of Mr A's power of attorney that had been granted by Mrs A in favour of Mrs B. There was evidence to suggest that, in fact, Mr A had little comprehension of what he had executed. Later on that day, Ms Wilkie-Smith obtained advice from the Office of the Public Advocate about what could or should be done regarding Mrs A and then informed Dr Myers that Mrs A would not be discharged until the legal position as to her guardianship was clarified.

13 Despite this, the next day, 22 May 2001, Ms Wilkie-Smith went to the hospital and discovered Dr Myers in the process of informing nursing staff to arrange an ambulance to take Mrs A home. At this stage, the bed card doctor for Mrs A, Dr Lefkovits, had not authorised her discharge. Dr Lefkovits, like Ms Wilkie-Smith, wanted to await the clarification of guardianship.[6] Further, on 22 May 2001, Mrs B applied for a guardian and administration order with respect to Mrs A. On that day also, Dr Myers produced to Ms Wilkie-Smith the revocation of power of attorney by Mr A.

14 On 25 May 2001, Dr Myers took Mr A out for over six hours. For some of that time Mr A was placed in a waiting room whilst Dr Myers completed hospital rounds; they went to Mr A's home to clean the swimming pool; they went to a bakery; and later, they went to visit Mrs A. Whilst they were doing this, the Office of the Public Advocate called Dr Myers and expressed the family's concern as to the whereabouts of Mr A. Nonetheless, Dr Myers neither returned Mr A home nor sought anyone's permission to taking him out.

15 On 30 May 2001, Mrs B and Ms C were appointed Mrs A's guardians with respect to health care and accommodation matters as well as her joint administrators. In early June arrangements were made for care facilities for Mrs A and Mr A, including appropriate nursing staff. By 7 June 2001, another geriatrician, Dr Srikanth, assessed Mr A as 'incompetent in regard to finances,' having moderately severe dementia and considered that he had no understanding or recollection of the recently revoked power of attorney.[7]

16 On 15 June 2001, Mrs A was discharged from hospital and died at home the next morning at 6:30am on 16 June 2001. On the day of Mrs A's death, after her body had been taken by mortuary attendants, the family were grieving with Mr A as well as making funeral arrangements. Dr Myers arrived uninvited at the family home but was refused entry and told to go away. Nonetheless, Dr Myers stayed and tapped on windows outside the house and called out to Mr A loudly.[8] When Dr Myers did not leave the family called the police. On 17 June 2006, Mrs A's funeral was held. That evening, a prayer service for Mrs A was held at the home. Dr Myers attended that service. The family did not object to his attendance for customary reasons. Whilst there, Dr Myers took Mr A into a bedroom and gave him a letter which he placed in a bedside drawer. In the letter Dr Myers offered Mr A his condolences and said:[9]**

'...I am your doctor and your friend. Like you have (sic) similar interests and will always be here to ensure no-one invades the privacy of your home or tries to remove you from there. Call if you need help... I love you like a son should and doctor.'

**17 Ms C saw Dr Myers take Mr A into the bedroom. She retrieved the letter and was confronted by Dr Myers who shouted loudly and abusively that the letter be put back as it was 'a test' and that Ms C would 'go to hell.'[10]

18 On 21 June 2001, Mrs B and Ms C were appointed joint administrators for Mr A. Their application to be appointed his guardians was dismissed. On 17 August 2001, Dr Myers applied to be appointed guardian to Mr A. That application was later withdrawn. On 4 April 2002, Mr A moved into a nursing home. Dr Myers had little or no contact with Mr A from that point onward.

19 On 22 July 2003, a panel of the Medical Practitioners' Board of Victoria, constituted under s 46 of the Medical Practice Act 1994 ('the Act'), found that Dr Myers had engaged in unprofessional conduct, as defined in s 3(1)(a) and (b) of the Act. That section states:**

'"[U]nprofessional conduct' means 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.'

20 The panel's decision related to the facts described above. Having found that Dr Myers had engaged in various acts of unprofessional conduct with respect to Mr and Mrs A, the ultimate determination of the panel was that:

'Pursuant to section 45A(2) of the Act Dr Myers is:

(a) Reprimanded for serious transgressions of professional boundaries;

(b) Cautioned about the limits of his involvement in family situations;

(c) Required to undergo a course of counselling on professional boundaries and the limits of a doctor's role in advocacy.

The counselling is to be conducted by Dr David List, psychologist, at Dr Myers' expense and is to be completed over a period of six months with a minimum of four sessions within that time. A report is to be forwarded to the Medical Practitioners Board of Victoria by both Dr List and Dr Myers upon completion of the course of counselling; and

21 Under s 60 of the Act, the panel's decision was reviewed by the Tribunal. Twenty-four different allegations of unprofessional conduct were put to the Tribunal by the Board - 11 of which were made out and 13 of which were not. The 11 allegations made out against Dr Myers were:

(a) You failed to exercise the care and skill of a competent geriatrician in that:

(x) you attempted to impose your personal views about the appropriate manner of Mrs A's accommodation and care;

(xi) you behaved in a manner which was destructive of the relationship between Mrs A and her family;

(xv) you behaved in a manner which was destructive of the relationship between Mr A and his family;

(b) You acted or sought to act as a medical practitioner of Mrs A when she was in Epworth Hospital in circumstances where you knew or ought to have known that you did not have the authority to do so because the family of Mrs A had appointed Dr Robert Lefkovits as her doctor in that:

(iv) on 22 May 2001 you ordered staff of the Epworth Hospital to discharge Mrs A.

(f) You engaged in inappropriate communications and activities with or in relation to Mr A such as threatened to compromise the professional boundaries which ordinarily delineate the professional relationship between medical practitioners and patients in that:

(iv) on 21 May 2001 you were a witness to Mr A's signing of the revocation of Power of Attorney when you knew or ought to have known that Mr A was not or may not have been competent to revoke the Power of Attorney;

(vi) on 25 May 2001 you took Mr A from his carers for a purpose other than to provide medical treatment to him;

(vii) on 25 May 2001 after having removed Mr A from his house and being asked by the Office of Public Advocate to return Mr A to his home, you spent several hours with him away from his home, at the end of which you took him to visit Mrs A in the Epworth Hospital;

(ix) on 16 June 2001 you attended the home of Mr A and when you were refused entry to the house you did not leave and you ran around outside the house knocking on the windows or calling out Mr A's name;

(g) You engaged in inappropriate communications with the relatives of Mr A and Mrs A in that:

(ix) on the evening of 17 June 2001 you said to Ms C `You will go to hell' when she asked you what you were doing with Mr A in his bedroom.

(h) You engaged in inappropriate communications with other persons providing health services to Mrs A in that:

(iii) you misrepresented to Dr Robert Lefkovits that the paid carers of Mrs A were competent to care for her at home when you knew or ought to have known that that was not the case.

(iv) on several occasions between 21 May 2001 and 22 May 2001, you insisted to Ms Karen Wilkie-Smith that Mrs A should be discharged from the Epworth Hospital to home when you did not have the authority to discharge Mrs A.

**22 With these allegations proven, the Tribunal upheld the final determination of the panel subject to one exception; namely, that 'the counselling referred to in paragraph (c) of the panel's determinations is to be provided by a medical practitioner approved by the Medical Practitioners' Board of Victoria and that the practitioner is to forward a report to the Medical Practitioners' Board upon completion of the course of counselling.'[11]

23 Following the Tribunal's decision, Dr Myers applied to a master of the Supreme Court for leave to appeal on a question of law under s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'). The master refused leave.

24 Dr Myers appealed the refusal of leave by the master under r 77.05 of the Supreme Court Rules to a judge of the Trial Division. By virtue of r 77.05(5) of the Rules, that hearing proceeded de novo.[12] Nonetheless, leave to appeal the decision of the Tribunal was again refused.[13] The appellant claimed the appeal raised the following questions of law:**

'First, that it was open on the evidence to find that the appellant was guilty of unprofessional conduct within the meaning of s.3 of the Medical Practice Act; secondly, whether the facts found by the Tribunal did come within the particulars of each of the charges laid against the appellant; and thirdly, whether the facts found by the Tribunal could constitute unprofessional conduct within the meaning of s.3 of the Medical Practice Act 1994.'

**25 I will say more of the appellant's proposed questions of law and grounds of appeal later.

26 Under s 17A(3A) of the Supreme Court Act 1986, Dr Myers then sought leave of the Court of Appeal to appeal the judge's refusal to grant leave.[14] That application was granted and hence the matter comes before this Court on the basis of an appeal against the orders of the judge below.

27 Although perhaps procedurally complicated, the ambit of this proceeding is confined to an appeal by way of rehearing: that is, whether the order of the judge below, in refusing to grant leave, is the result of some legal, factual or discretionary error.[15] I mention this in particular because many of the appellant's submissions proceeded on the basis that this was yet another hearing de novo. Parts of the written submissions before us were identical to the written submissions before the judge below and were devoid of the appropriate corrections and adaptations for the appellate purpose. Rather, it was necessary for the appellant to show error in the conclusion of the judge below before this Court would disturb his Honour's conclusion.[16] Further, as I explain later, the nature of the decision of the judge below was essentially discretionary. This makes the appellant's task all the more difficult in that it is incumbent upon him in these proceedings to show that the judge's discretion miscarried.[17] I find no such error and consider that the appeal should be dismissed.

28 The approach as to when a court will grant leave to appeal pursuant to s 148(1) of the VCAT Act is set out by the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.[18] In summary, Phillips JA states:

29 Whether leave is granted or not must always depend upon the justice of the particular case;[19]

30 If leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal's succeeding or failing;[20]

31 The applicant need not establish an error below - that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;[21]

32 Although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;[22]

33 Once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order[23] or final in its effect;[24] and

34 Where the order sought to be appealed is an interim order, there may be reasons bearing on the justice done to both parties for not granting leave to appeal, eg, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.[25]

35 Subject to the emphasis of Phillips JA that the guidelines laid out are not hard and fast rules, he states:[26]**

'When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.'

**36 In this matter, the judge below refers to Hulls and his Honour's description of the authority is, with respect, correct.[27] Further, what is clear from Hulls is that the decision to grant leave is discretionary.[28]

37 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue[29] is also relevant in ascertaining whether the judge below fell into error. In that case, which concerned an appeal from a judge of the Trial Division who refused to grant leave under s 148 of the VCAT Act, Gaudron, Gummow, Hayne and Callinan JJ stated:[30]**

'As has been noted earlier, the primary judge gave no reasons for refusing leave. It may be thought that some support for that course may be derived from Coulter v The Queen where it was said that the discretion to grant or refuse an application for leave or special leave to appeal "can commonly be exercised without the provision of detailed or, sometimes, any reasons". But it is very important to notice two considerations. First, what was said in Coulter related to the refusal of leave or special leave to appeal to a court - a process which is invoked only where there has been at least one earlier judicial disposition of the matter attended by full reasons for judgment. An application for leave under s 148(1) is the first engagement of judicial power and is an engagement of judicial power in respect of a controversy which is framed differently from, and more narrowly than, whatever may have been the controversy in the Tribunal. It is, therefore, not to be supposed that the course of argument in, and decision by, the Tribunal, even if taken with the course of argument before a judge of the Trial Division, will ordinarily reveal to the applicant with any certainty why it is that leave to bring proceedings under s 148(1) is refused. Secondly, as was recognised in Coulter, it is usual to give short reasons for refusing leave or special leave to appeal. Not giving reasons is exceptional.

The practice of giving no reasons for refusing leave under s 148(1) of the VCAT Act is unwarranted. There is no basis for departing in such cases from the ordinary rule that reasons should be given. Those reasons need not be extensive. In appropriate cases, little more may be required than a short, perhaps very short, statement of the chief conclusions which the judge refusing leave has reached. The disappointed applicant (and any court asked to review the refusal) must, however, be able to know from the reasons given by the primary judge why the judge reached the decision to refuse leave.'

**38 In light of this statement, two things should be said. First, the orders of the judge below were not the first judicial disposition of the matter. The appellant had already been refused leave by the master. Secondly, the judge below gave full reasons addressing each of the appellant's submissions.

39 Possibly because an appeal under s 148 of the VCAT Act exists only on a question of law, the appellant sought to dress-up his various grievances with the facts as found by the Tribunal as questions of law.[31] This is clear from the four grounds of appeal on which the appellant intended to rely if he were granted leave by the judge below:[32]**

'[T]he Tribunal erred in holding that on the facts found by it, the appellant's conduct constituted unprofessional conduct within the meaning of s.3 of the Medical Practice Act 1994; secondly, the Tribunal erred in finding that the appellant's conduct amounted to unprofessional conduct to the standard of proof required by Briginshaw v Briginshaw; thirdly, the Tribunal erred in finding that the particulars of the charges laid against the appellant had been proved on the facts found by the Tribunal; and fourthly, the Tribunal erred in finding that the facts as found constituted unprofessional conduct within the meaning of s.3 of the Medical Practice Act 1994.'

**40 A few things should be said of this. Firstly, there is no discernable difference between the first and fourth grounds of appeal. Second, although the second ground of appeal refers to a legal concept, 'the standard of proof required by Briginshaw v Briginshaw,' it does not mean that it discloses a question of law.[33] In short, these proposed grounds of appeal do not disclose a question of law.

41 When the proposed grounds of appeal and concomitant questions of law are understood from that perspective, the issue in this case become clear. Essentially, by seeking to impugn various findings of fact, the appellant is seeking to rely on the error of law discussed in the judgment of Phillips JA in S v Crimes Compensation Tribunal.[34] Accordingly, if there are any grounds of appeal with respect to the Tribunal's decision, they would be, with respect to each of the Board's allegations made out against Dr Myers:

42 1. That the Tribunal's primary findings of fact were not open on the evidence before it;

43 2. That it was not open for the Tribunal to find that the primary findings of fact substantiate each allegation made out against the appellant; and

44 3. That is was not open for the Tribunal to find that the various charges against the appellant constituted unprofessional conduct as defined in s 3 of the Act.

45 There is also a separate issue, raised by the appellant's submissions, as to the 'function of what has been described as the particulars of the allegations in the proceedings before the Tribunal.'[35] I will say more on this issue later.

46 Merely because various questions of law have been identified does not mean that leave should be granted. In my view, the appellant has no prospect of success on any of these questions. Impugning a finding of fact is a resort to which many applicants may resort in applying for leave to appeal. However, this ground of review is narrowly available.

Whether the Reasons of the Judge Below are Attended by Error

47 In response to the grounds raised (in one way or another) by the appellant, the judge below made a few primary observations. With respect to the first proposed ground of appeal, he states:[36]**

'[Another] principle relevant to this application arises out of the attacks on the finding of the Tribunal consisting of an argument that the Tribunal erred in making particular findings of fact. In respect of those submissions the applicable principle is that an error of law in respect of findings of fact is only made out if the plaintiff is able to show that the particular finding was not open on the evidence, see S v Crimes Compensation Tribunal .'[37]

**48 This analysis is clearly supported by the authority cited by his Honour.

49 His Honour describes the appellant's second proposed ground of appeal in the following appropriate way:**

'[I]t was submitted that the findings of fact by the Tribunal on which the Tribunal made determinations of unprofessional conduct did not conform with the wording of the particulars of the allegations in the notice which had been provided to the plaintiff pursuant to the provisions of the Medical Practice Act.'

**50 Whether the Tribunal erred in holding the primary findings of fact substantiated the charges found against the appellant is clearly a question of fact. It involves a process of inference whereby the Tribunal reasoned that certain primary facts resulted in one of the Board's allegations being made out.

51 With respect to the third proposed ground of appeal, his Honour states:[38]**

'[I]n respect of a number of the allegations found proven against the plaintiff, the plaintiff seeks to contend that the Tribunal erred in law in determining on the facts as found by it, that the plaintiff was guilty of unprofessional conduct.

In some cases it may be that it is a question of law whether the facts as found by a tribunal fall within a statutory definition. However in other cases the issue which is before a Tribunal may be one on which different minds might respectably and reasonably reach different conclusions. In such a case, it has been held, if it is reasonably open to the Tribunal to reach the conclusion which it did on the facts as found by it, no error of law arises, see Vetter v Lake Macquarie City Council.[39]

In this case the assessment whether the plaintiff was guilty of unprofessional conduct as defined by the Act, was in my view such a determination. Such a question does involve an element of judgment on which different minds might reasonably differ. It is also a question of mixed fact and law. Indeed a decision on such an issue may be, and in this case was, informed by expert evidence as to the standard of conduct reasonably expected of a medical practitioner by his or her peers. Thus in order to establish that the Tribunal erred, the plaintiff must establish that on the facts found by the Tribunal, it reached a conclusion which no reasonable tribunal might come to.

In the submissions advanced on his behalf, the plaintiff accepted that the test which I have just described is the correct and applicable test. It was acknowledged on behalf of the plaintiff therefore that the plaintiff must establish that it was not reasonable for the Tribunal to hold that the facts found by it fall within the statutory definition of 'unprofessional conduct'.'

52 With respect, I find no error with this analysis. The reasoning behind rendering this question one of fact is stated in S v Crimes Compensation Tribunal: [40]

'The determination of that question of fact [whether the claimant's particular circumstances fall within the relevant statutory description] may depend upon the acceptance or rejection of evidence that is led; it may depend upon a choice between witnesses, and an assessment of their credibility or reliability; or it may depend more directly upon the sufficiency or insufficiency of the evidence that is given. All these things are committed to the tribunal, and not to the court; and although I speak of evidence, the same is true where the tribunal is authorised to obtain information otherwise than from witnesses on oath or to act upon its own expertise. Essentially, the question whether the particular circumstances of the claimant are such as to bring his or her case within the statutory description is a question of fact, not law.'

53 This places the appellant in a difficult position. As already explained, for any of his three proposed grounds of appeal to disclose a question of law, it would have to be argued that the Tribunal made findings of fact not open to it. In the context of seeking leave to appeal, it behoved him to show that it was arguable that the Tribunal (whether in making the primary findings of fact, drawing inferences from those findings of fact that substantiate the Board's allegations or finding those allegations constitute unprofessional conduct under s 3 of the Act) made findings of fact not open to it.[41] As to exactly what this means, I refer to what Kirby P said in Azzopardi v Tasman UEB Industries Ltd:[42]

'The court is limited, relevantly, to points of law. The finding of what

have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function. The evaluation of competing evidence and inferences is reserved in compensation cases to the judge of the Compensation Court. Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the

trial judge as against the weight of the evidence.'

54 With respect to inferences from primary findings of fact, it is relevant to consider Tracy Sports Village and Social Club v Walker[43] which is endorsed by Phillips JA in S:[44]

'If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law. It is not sufficient that this Court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn.'

55 Further, not only must the Tribunal have made a finding of fact not open to it, but that finding, if it is to constitute an appellable error of law, must have played a particular role within the reasoning of the Tribunal. The exact nature of this role does not need to be considered here because, as I find below, the appellant does not clear the first hurdle in seeking to impugn the Tribunal's findings of fact. However, I note that Phillips JA in S expresses the opinion that the finding must be 'critical' to the ultimate determination of the Tribunal.[45] He also states:[46]

'Unless the ultimate conclusion of the tribunal...depended upon the particular finding which was not open so that it may fairly be said in consequence that the conclusion itself was not open to the tribunal, what was otherwise no more than an error of fact will ordinarily not serve to demonstrate error of law.'

**The Appellant's Submissions with Respect to Each Charge or Allegation

56 I will make some broad observations before turning to the appellant's specific arguments with respect to each finding. Generally, it was submitted that the Tribunal made a critical finding that Dr Myers held a 'personal yet unsubstantiated belief that the family was abusive' and which no reasonable Tribunal could have reached. It was submitted that the first,[47] part of the seventh[48], the eighth[49] and ninth[50] allegations (together with other charges that are not relevant) were premised upon the existence of an abusive relationship between Mrs A on the one hand and Mr B, Mrs B and Ms C on the other. Emphasis was placed on the evidence that it was the expressed wish of Mrs A to be at home and that Mrs B's wish to the contrary constituted 'elder abuse'. Emphasis was also placed on the capacity of Mr A to make decisions as to who was to treat him and with whom he wanted to spend time. It was also submitted that Mrs B's instruction that Dr Myers not treat Mr A constituted a denial of Mr A's right to choose his own doctor. Further, it was argued that the denial of contact between the two constituted additional abuse. It was emphasised that Mr B, Mrs B and Ms C, because they did not own the house, were not entitled to refuse entry to Mr A's home. They had no right, it was submitted, to deny access or fraternisation between Mr A and Dr Myers. It was submitted that the Tribunal's failure to accept that Mr A and Mrs A were subject to 'elder abuse' tainted the Tribunal's decision so that the whole decision was unreasonable or plainly unjust.

57 Although this Court is now concerned with the nine charges made out before the Tribunal, there were originally fifty-six charges alleged against Dr Myers which were reduced to twenty-seven. The appellant submitted that the charges were difficult and complex and the appellant only knew what was alleged against him by the wording of the charge. The legal significance of this point is unclear. In any event, the judge below dealt with this point by concluding that even if the appellant might not have known what was alleged against him, he could infer the grievance from the general body of evidence.

58 The focus of the appellant's submissions turned next to an analysis of the Tribunal's findings of fact as aligned to the relevant nine charges. With respect to the first charge concerning the imposition of his personal views, the appellant focused on the finding of the Tribunal that Dr Myers 'advocated relentlessly for Mrs A's discharge home'[51] and complained that 'advocating relentlessly was not part of the charge'. Dr Myers also complained that the Tribunal made a finding as to his single-minded advocacy when, in fact, the evidence disclosed that the persons treating Mrs A believed it was in her interest that she go home. The Tribunal found that Dr Myers' single-minded advocacy was not based on sound clinical judgement. The appellant submitted this was contrary to evidence that Mrs A was competent until the last two weeks of her life. The Tribunal found Dr Myers had not made a dispassionate assessment of the appropriate options for Mrs A. The appellant submitted this was contrary to the evidence that Ms Wilke-Smith noted that Dr Myers had observed it may be too late medically to transfer Mrs A to another facility. Dr Myers also considered the prospect of hospice care, notwithstanding the opinions of the treating doctors Lefkovits and Jaworowski in this regard. For the reasons already explained, these matters do not raise questions of law.

59 I now turn to the specific allegations against Dr Myers.**

First Allegation 1(a)(x): Dr Myers failed to exercise the care and skill of a competent geriatrician in that he attempted to impose his personal views about the appropriate manner of Mrs A's accommodation and care.

60 Dr Myers' main complaint with respect to the first allegation is that it is not possible to engage in unprofessional conduct merely by expressing a professional viewpoint, even if it was made persistently and forcefully. Dr Myers' conduct was described on his behalf as merely acting as an advocate for a particular professional viewpoint. However, the Tribunal rejected that approach. The Tribunal found that Dr Myers' conduct included relentlessly advocating the discharge of Mrs A in a manner that was single minded and in circumstances where it was not based on any sound clinical judgment of the competency of Mrs A. Some examples of this include: the attempt of Dr Myers to persuade the bed card doctor, Dr Leftkovits, to discharge Mrs A by understating the difficulties for caring for Mrs A in her home; as well as the efforts of Dr Myers to persuade the social worker, Ms Wilkie-Smith, to discharge Mrs A. This answers the appellant's argument, made before the judge below and now before this Court, that the primary findings of fact, being directed to Dr Myers 'advocating' his views, did not meet the allegation that Dr Myers 'imposed' his views. Ultimately, it was a question of fact as to whether Dr Myers attempted to impose personal or professional views. The Tribunal had found that the views advanced by Dr Myers went beyond professional views and were personal views held by him as to the appropriate manner of care and accommodation for Mrs A. Clearly, that finding was open to the Tribunal. Moreover, these complaints by the appellant do not raise errors of law.

Second Allegation (a)(xi) and (xv): Dr Myers failed to exercise the care and skill of a competent geriatrician in that he behaved in a manner which was destructive of the relationship between Mrs A and her family and between Mr A and his family.

**61 In its decision the Tribunal found that Dr Myers ignored or refused to consider family wishes and interposed himself between Mr A and Mrs A and other family members. Dr Myers attacked this finding on the basis that it was contrary to evidence on Mrs B's behaviour in relation to her parents (eg, she had threatened withdrawal of financial support, cancellation of appointments with Dr Myers to discuss Mr A and Mrs A as well as her frequent communications between Mrs B and Epworth Hospital in relation to Mr A and Mrs A). The Tribunal found that the relevant charge was proven and accepted expert evidence of independent witnesses in reaching that conclusion.[52] In particular the Tribunal found on the expert evidence that it is 'a doctor's duty to work in a partnership with the family and care providers collaboratively' and that it was 'inconsistent with this duty from a doctor to participate in family disputes as if he or she were a family member or to exacerbate family tension for no good reason'. It was submitted for the appellant that no reasonable tribunal could have so found and that, in any event, the finding was not applicable to the facts in the case because the expert's evidence was largely based on hypothetical situations. This argument should be rejected. Regularly, independent experts are called to give evidence as to what a reasonable professional in the prevailing circumstances might be expected to do. This case is no different.

62 The appellant submitted that the Tribunal erred in finding the charge of unprofessional conduct was made out when the charge stated that Dr Myers acted 'destructively,' not that he failed to act 'collaboratively' (as the Tribunal found). Clearly, it was open for the Tribunal to draw the inferences contained in the charge. Although the appellant claims that there is no evidence upon which such inferences could be drawn, such a submission ignores the evidence before the Tribunal as to the family relationship and the expert evidence that was called to assess Dr Myers' conduct. The Tribunal found that Dr Myers' conduct went well beyond merely acting in the best interests of his patients and involved active conduct to exclude the family of Mr and Mrs A from any involvement or contribution to their care and treatment. In my view, it was clearly open to the Tribunal to make the findings that it did and I am unable to detect any error in the consideration by the judge below of the approach of the Tribunal to the topic.**

Third Allegation (1)(b)(iv): Dr Myers on 22 May 2001 ordered staff of the Epworth Hospital to discharge Mrs A when he knew, or ought to have known, that he did not have the authority to order such discharge.

**63 The appellant submitted that the complaint contained particulars of an allegation rather than making an allegation as such. Further, the appellant made a submission as to its wording: the charge stipulates that 'Mrs A had appointed Dr Robert Lefkovits as her doctor' when in fact Dr Lefkovits was appointed by the hospital at random.

64 At the outset, it is to be observed that the complaint was not disputed below. Dr Myers did not dispute that he was not the bed card doctor and therefore had no authority to order staff to discharge Mrs A.

65 It was submitted that the wording of the charge was important because it alleged intrusion into the family relationship when the only rights truly in issue where those of the patient, not the family. The judge below treated this as a minor factual error, namely the statement contained in the charge that the family (as distinct from the hospital) appointed Dr Leftkovits. This was the appropriate approach to take. The error alleged, being trivial, does not invalidate the charge and the proceeding before the Tribunal.[53] The issue was that Dr Myers acted without authority. The Tribunal made a finding to that effect on the evidence. The Tribunal found that Dr Myers falsely told hospital staff that he had been advised by the bed card doctor that Mrs A was to be discharged when no such advice had in fact been given.

66 In addition, it was argued on the appeal before us that no formal discharge document was signed. However, the point or issue was not advanced before the Tribunal or the judge below. The question of completion of documents to effect discharge was never explored before the Tribunal. It is inappropriate that they be considered at this stage.

67 It was also submitted for Dr Myers that the allegation should not have been found proven because the nursing staff to whom he spoke at the relevant time when he requested that Mrs A be discharged were not called to give evidence. The argument was based upon the necessary evidentiary standard under Briginshaw v Briginshaw.[54] In this respect, there was evidence before the Tribunal that the bed card doctor, Dr Leftkovits, had not properly authorised the discharge of Mrs A; the assessment of Dr Myers' statement whereby he positively asserted that he was told by the bed card doctor that Mrs A could be discharged; and, the evidence of the social worker, Ms Wilke-Smith, who observed Dr Myers telling nursing staff to organise an ambulance to take Mrs A home. Thus, there was extensive evidence before the Tribunal sufficient for it to make the finding it did. The judge below concluded as much. I am unable to detect any error in this respect.

68 It was further argued before this court that the dismissal of some allegations, namely, allegation 1(h)(i) and (ii), was inconsistent with the finding in allegation 1(b)(iv) being found proven. It is to be observed that allegation 1(h)(i) was not before the Tribunal and allegation 1(h)(ii) was a matter on which the Tribunal did not consider it appropriate to make a separate finding of unprofessional conduct. Furthermore, these latter submissions were not advanced before the judge below. In my view, they do not advance the appellant's position and ought not to be considered.**

Fourth Allegation (1)(h)(iv): Dr Myers on 21 and 22 May 2001 on several occasions insisted to the social worker involved with Mrs A that Mrs A should be discharged from Epworth Hospital when Dr Myers did not have the authority to discharge Mrs A.

69 In essence, it was submitted for the appellant that the expression of professional views by Dr Myers as to the discharge of Mrs A could not constitute an inappropriate professional communication by him. Furthermore, it was said that Dr Myers only did what he had been told by the bed card doctor, Dr Leftkovits, to do. The judge below found that this submission did not accord with the findings of fact. It was found by the Tribunal that Dr Myers did not merely express a professional opinion but, rather, sought to intervene when he had no authority to do so. Furthermore, the conduct of Dr Myers as found by the Tribunal was that he falsely told the social worker, Ms Wilke-Smith, that the bed card doctor, Dr Leftkovits, had approved the discharge when no such approval had in fact been made. Again, I am unable to detect any error in the approach taken by the judge below to the finding of the Tribunal.

Fifth Allegation (1)(h)(iii): Dr Myers misrepresented to the bed card doctor that the paid carers of Mrs A were competent to care for her at home when he knew or ought to have known that that was not the case.

**70 The appellant submitted that this charge could not constitute unprofessional conduct. The main thrust of the charge is that Dr Myers acted 'such as threatened to compromise the professional boundaries which ordinarily delineate the professional relationship between medical practitioners and patient...'.

71 The appellant submitted that it was not open for the Tribunal, on the primary facts made out, to find that this charge was made out. Given the nature of that particular charge, involving the allegation that Dr Myers made a 'misrepresentation' which normally connotes a certain mental element, the evidence adduced to support this charge was slightly more complex. Ultimately, the Tribunal found that although Dr Myers was acting on a genuine belief as to the capabilities of the carers, he ought to have known that there were not in fact competent for the task. Normally, it may have been arguable that Dr Myers could not have 'misrepresented' the true position when there was no deliberate intent on his behalf to do so. However, in these circumstances, the charge laid against Dr Myers clearly qualifies any mental element connoted in the term 'misrepresent' by the words 'when [the appellant] knew or ought to have known'.

72 Both the Tribunal and the judge below considered it appropriate to assess the charge in light of the factual matrix in which they occurred. However, the thrust of the charge is able to stand on its own as being open to found the Tribunal's determination that such behaviour constitutes unprofessional conduct. The Tribunal found that Dr Myers may have had a genuine belief in the capacity of the carers to look after Mrs A at home but that any such view was unreasonably held. Hence, the Tribunal found that Dr Myers made representations about the competency of the carers when he ought to have known that the level of competency was not adequate. It was open to the Tribunal to reach the finding it did. I am unable to detect any error in the consideration by the judge below of that finding.**

Sixth Allegation (1)(f)(iv): Dr Myers threatened to compromise the appropriate professional boundaries by on 21 May 2001 being a witness to Mr A signing a revocation of Power of Attorney when he knew or ought to have known that Mr A was not or may not have been competent to revoke the Power of Attorney.

73 It was submitted for the appellant that the mere witnessing of a document is only attesting to a signature and is not the making of a statement of competency. Hence, it was argued, the witnessing of a document cannot involve a transgression of professional boundaries. The judge below considered the factual context in which the witnessing of the signature occurred. Given the circumstances and the role of Dr Myers, namely as a treating geriatrician, the submission is difficult to accept. In my view, it would be absurd to consider the allegation in isolation without taking account of the factual context in which the witnessing of the revocation of the power of attorney occurred. The finding of the Tribunal was open to it on the evidence. There was no error on the part of the judge in his consideration of the Tribunal's findings.

Seventh Allegation (1)(f)(vi) and (vii): Dr Myers engaged in conduct that threatened to compromise professional boundaries in that on 25 May 2001 he took Mr A from his carers for a purpose other than to provide medical treatment and despite being asked by the Office of the Public Advocate to return Mr A to his home, spent several hours with Mr A away from his home and took Mr A to the Epworth Hospital to see Mr A.

74 The appellant submitted that this charge could not constitute unprofessional conduct. It was submitted that the allegation and the conduct underlying it did not involve an improper transgression of professional boundaries. However, the conduct of Dr Myers in taking Mr A out as he did should be seen in its proper factual context. This was the approach taken by the Tribunal and observed by the judge below. The context consisted of Dr Myers taking Mr A out when he was aware that the family of Mr A had concerns about the relationship with Dr Myers and, also, when there was a serious dispute in place between Dr Myers and the family over the role of the doctor and the approach to making decisions for the care of Mr A. At the same time, the evidence was that the family of Mr A had no confidence in Dr Myers, particularly in the context of the declining cognitive state of Mr A. In addition, there was expert evidence before the Tribunal[55] that it was inappropriate and unprofessional for a doctor to take an elderly, cognitively impaired person out without the permission of another family member. It was further argued for Dr Myers that it was not found that the Office of the Public Advocate had asked Dr Myers to return Mr A home. Nonetheless, it was not challenged by Dr Myers that the Office of the Public Advocate telephoned him and informed him that the family was concerned about the whereabouts of Mr A. Notwithstanding of the conveyance of that concern, Dr Myers did not return Mr A to his home. The judge below observed that the essence of the allegation was that Dr Myers removed Mr A from his carers and persisted in keeping Mr A out after concern had been conveyed to him by the Office of the Public Advocate. Clearly there was evidence before the Tribunal to reach the finding it did. There is no error on the part of the judge in his consideration of the finding. I observe, further, that in the course of argument it was put for the appellant that there was no evidence to establish any of the elements of the allegation. This was an argument not advanced before the judge below. It was also argued, again for the first time, that finding allegation 1(f)(vi) and (vii) proven and allegation 1(f)(i) not proven are inconsistent. In any event, the allegations are unrelated and there is no apparent inconsistency in the findings. Moreover, these matters were not raised before the judge below and it is not appropriate to consider them here.

Eighth Allegation (1)(f)(ix): Dr Myers threatened to compromise his professional boundaries by on 16 June 2001 attending Mr A's home and, when refused entry, refusing to leave the premises and in fact running around outside the house knocking on the windows or calling out Mr A's name.

**75 The appellant did not deny the acts that constituted in this charge but rather denied that they could constitute unprofessional conduct because, he said, they involved the expression of a religious or philosophical belief. It was further argued that the conduct did not involve unprofessional conduct because it was unrelated to the standard of provision of medical care. However, the judge below observed that an individual cannot be immune from meeting an allegation of unprofessional conduct merely because the acts involved did not involve the direct provision of medical care.[56] It was also submitted for the appellant that all Dr Myers did on the night in question, after being refused entry was merely 'tap on the window' to signify to Mr A that he was now departing. However, the Tribunal rejected the version of events proffered by Dr Myers. This is a difficulty for the appellant. Further, it was raised before this court that Dr Myers acted as he did because Mr A suffered a hearing difficulty. This was a matter raised before this court for the first time and not advanced before the Tribunal or the judge below. It does not advance the position of the appellant as no question of law is raised. Properly it was a matter of fact, strictly speaking new evidence, that the appellant had every opportunity to put before the Tribunal.

76 In the circumstances, no error has been made out with respect to this allegation.**

Ninth Allegation (1)(g)(ix): Dr Myers engaged in inappropriate communications when on the evening of 17 June 2001 he said to Ms C (granddaughter of Mr and Mrs A): `You will go to hell' when Ms C asked Dr Myers what Dr Myers was in Mr A's bedroom.

**77 It was submitted for the appellant that his conduct was not made in a professional capacity and, further, that was merely responding to the behaviour of another. The attempt to differentiate or dissect the behaviour from the professional conduct of Dr Myers is unpersuasive. In the overall circumstances that prevailed at the time of Mrs A's death and its subsequent events, the conduct of Dr Myers could not be dissected as argued on his behalf. However, as the judge below observed, reasonable minds may differ as to whether the conduct of Dr Myers in the circumstances did involve unprofessional conduct. However, it could not be said that no reasonable Tribunal could arrive at the conclusion the Tribunal did. It is to be observed that an attack was made on the judgment of the judge below on the basis that there was an error in describing the statement of Dr Myers to Ms C 'You will go to hell' as having been expressed in an abusive manner. It was asserted for Dr Myers that there was no evidence that his tone was abusive. In my view that does not advance the point any further. There was in fact evidence from Mrs B as to the tone of Dr Myers' comment. However, even if there was an error I would not be persuaded that it was of sufficient magnitude to interfere or find an error sufficient to vitiate the decision of the judge. It follows that in my view the remaining complaint with respect to the ninth allegation is not made out.

The Function of the Particulars of the Allegations in the Proceeding before the Tribunal

78 One of his Honour's general observations touches on the separate issue as to the function of the particulars of the allegations in the proceeding before the Tribunal. The appellant's argument is stated succinctly by his Honour:[57]**

'[Another] applicable principle relevant to this proceeding concerns the function of what has been described as the particulars of the allegations in the proceedings before the Tribunal....[I]t was submitted that the Tribunal relied on facts and evidence other than that described in the particulars in order to make the determinations of unprofessional conduct which it did.'

79 With respect to this argument, his Honour stated:

'Section 46(f) of the Medical Practice Act provides for the service of a notice on a practitioner of a formal hearing relating to the matters under investigation by the Board. Section 48(a) provides that a notice of a formal hearing under s.46 must state the nature of the hearing and the allegations made against the practitioner. Section 52(1)(b) provides that the proceedings before the Board must be conducted with as little formality and technicality as the requirements of the Act and the proper consideration of the matter permit; s.52(1)(d) provides that the panel considering the matter is bound by the rules of natural justice.

Based on those provisions and based on the applicable authorities, I consider that the following principles are relevant to the arguments made by the plaintiff in this case:

(a) The notice served on the plaintiff is required to state the allegations made the plaintiff. It is not required to state the evidence relied on to support those allegations;

(b) As the Board and thus the Tribunal are bound by the rules of natural justice, the notice must sufficiently state the allegations so that the medical practitioner is adequately informed of the substance and nature of the allegations made against him or her;

(c) Notices which are required for hearings before disciplinary tribunals such as the Board, are not treated with the same rigor as pleadings are in the cases before our courts. It is sufficient if a notice, for purposes of disciplinary proceedings, serve its primary function, namely to give the recipient of the notice fair and adequate notification of the matter alleged against him or her, see Banks v Transport Regulation Board Victoria.[58]

(d) Indeed, even in cases of pleadings before courts, such cases are ultimately determined on the evidence and not simply on the pleadings. Of course causes of action must be determined by reference to the pleadings, but it is the evidence, not the particulars, which dictate the findings of fact, see Bank Commerciale S.A. (in liquidation) v Akhil Holdings Ltd.[59]'

**80 The appellant's argument in this respect has two aspects; firstly, it contemplates that the jurisdiction of the Tribunal is circumscribed by the particulars of the allegations made against the appellant; second, it contemplates that the appellant was, because of a lack of detail in the s 46(f) notice, denied procedural fairness in not having an opportunity to properly address the evidence put against him. Both these points should be rejected.

81 With respect to the former point, the particulars of the charges against Dr Myers are stated above, constituting 1(a)(x), (xi), (xv); 1(b)(iv); 1(f)(iv),(vi),(vii),(ix); 1(g)(ix), and 1(h)(iii) and (iv). The Tribunal clearly relied on these allegations in finding that Dr Myers was guilty of unprofessional conduct.[60] As already explained, there was no error in drawing these inferences from the primary facts. Further, as already explained, there was no error in finding that each of those charges constituted unprofessional conduct for the purposes of the Act. This is so even if the**

**Tribunal were bound (and I am not suggesting that it was) to consider the wording of those charges in isolation from the factual matrix in which they occurred. It is unnecessary to determine the issue as to whether the Tribunal would have the jurisdiction, after having heard all the evidence, to formulate its own allegations and bases for a finding of unprofessional conduct. That was not the case here. As the Board had fulfilled their obligations under s 48 of the Act (and there was no suggestion that they did not), no question of a deficiency in the notice arises. Further, the wording of that section does not support an argument that the Board was obliged to state the evidence upon which it was intending to rely in the course of the hearing.

82 It follows that no error has been made out in the reasons of the judge below. The appeal should be dismissed.**

83 I have had the advantage of reading the draft reasons for judgment of the learned Chief Justice. I agree with her Honour that the appellant's grounds do not raise questions of law.[61] Rather, they see to attack the Tribunal's findings of fact. His mere assertions that the Tribunal erred in law in coming to the impugned conclusions do not raise questions of law.[62] Her Honour has, however, reformulated the appellant's grounds and the questions so as to raise issues of law which the appellant then sought to agitate before us. But, for the reasons given by the Chief Justice, I consider that the appellant has failed to establish any relevant error by the learned judge below, or by the Tribunal. I would also dismiss the appeal.

[1] Dr John Barry Myers v Medical Practitioners Board [2004] VCAT 1358, ('the VCAT Decision').

[3] During this period, Mrs A was actually admitted to three hospitals: first Masada Hospital, Elsternwick Private Hospital and the Alfred Hospital; see the VCAT Decision, [12].

[4] The VCAT Decision, above n 1, [17].

[6] Dr Myers' position was that he did not direct the discharge of Mrs A but merely requested the hospital to implement Dr Lefkovits' agreement that Mrs A could be discharged.

[8] Dr Myers said he called out loudly because Mr A was deaf.

[11] The VCAT Decision, above n 1, [216].

[13] Myers v Medical Practitioners Board [2004] VSC 532 ('the decision below').

[14] See also Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; (2001) 207 CLR 72. Gaudron, Gummow, Hayne and Callinan JJ (with Kirby J in a separate judgment) held that, an appeal to the Court of Appeal from a decision of a judge to refuse leave to appeal under s 148(1) of the VCAT Act is not excluded by s 17(2) of the Supreme Court Act 1986.

[15] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, 180.

[16] Minister for Immigration v Jia Legeng (2001) 205 CLR 507, 547.

[17] See House v the King [1936] HCA 40; (1936) 55 CLR 499, 505; see also [29] below.

[18] [1999] VSCA 117; [1999] 3 VR 331 ('Hulls').

[27] The decision below, above n 4, [7] and [83].

[28] See, eg, Hulls [1999] VSCA 117; [1999] 3 VR 331, 335; 'The discretion to grant leave, which is conferred by the statute in untrammelled terms, cannot be fettered, and should not be fettered, by judicial decision.' Note that by 'judicial decision', Phillips JA is referring to the laying down of strict rules by the Court of Appeal by which a judge should abide in exercising the discretion conferred under s 148.

[29] [2001] HCA 49; (2001) 207 CLR 72.

[31] See generally Frugtniet v Secretary to Department of Justice (No 2) (1996) 10 VAR 314.

[32] See the judgment below, above n 4, [8].

[33] Clark v Flanagan [1934] HCA 73; (1934) 52 CLR 416, 427-28; McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8, 9; Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419, 429.

[34] [1998] 1 VR 83 ('S').

[35] See the judgment below, above n 4, [18].

[36] The judgment below, above n 4, [17].

[37] (1998) 1 VR 83 at 89.

[38] The decision below, above n 4, [13].

[39] (2001) 202 CLR 439, 450-451.

[40] (1998) 1 VR 83, 89 ('S'); see also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; also, Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 395.

[41] See, in particular, S v Crimes Compensation Tribunal [1998] 1 VR 83, 88-92.

[42] (1985) 4 NSWLR 139, 151.

[43] (1992) 11 FLR 32, 37-8.

[44] (1998) 1 VR 83, 91.

[52] Specifically Professor Kincaid-Smith, Dr Burrows and Professor O'Connor.

[53] See Bank v Transport Regulation Board (Vic) [1968] HCA 23; (1968) 119 CLR 222, 247.

[54] [1938] HCA 34; (1938) 60 CLR 336.

[55] Dr Burrows and Professor Kincaid-Smith.

[56] New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, 289 [56].

[57] The judgment below, above n 4, [18].

[58] [1968] HCA 23; [1968] 119 CLR 222, 247 (Taylor J).

[59] [1990] HCA 11; (1990) 169 CLR 279 , 297 (Dawson J).

[60] See the VCAT Decision, above n 1, [205].

[61] For a useful analysis of the distinction between questions of law, questions of fact and mixed questions of fact and law see the decisions of Jordan CJ in Australian Gaslight Co. v Valuer General (1940) 40 SR(NSW) 126, 137-138 and Phillips JA in S v Crimes Compensation Tribunal [1998] 1 VR 83, 86-93.

[62] See, for example, Frugtniet v Secretary to Department of Justice (No. 2 (1994) 7 VAR 1, 7-8 (Tadgell JA); Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, 522 (Ryan J); State of Victoria v Bacon [1998] 4 VR 269 (Phillips JA); Victorian Workcover Authority v CE Heath Underwriting & Insurance (Aust) Pty Ltd (1994) 7 VAR 1, 7-8 (Brooking J).