O'Sullivan v Medical Council of NSW

DECISION UNDER APPEAL: O'Sullivan v NSW Medical Board [2010] NSWADT 75

Anti-Discrimination Act 1977 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Medical Practice Act 1992 (repealed)

MT v AA [2009] NSWADT 268 Cottrell v Wilcox [2002] FCAFC 53 Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 AT v Commissioner of Police [2010] NSWCA 131 CASES CITED: CDJ v VAJ [1998] HCA 67 Building Professionals Board v Hans [2008] NSWADTAP 13 World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 Abdul-Karim v the Council of the New South Wales Bar Association [2005] NSWCA 93 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Jones v Ekermawi [2009] NSWSC 143K v K [2000] NSWSC 1052

APPELLANT J Gormly, barrister REPRESENTATION: RESPONDENT M Lynch, barrister

1. Leave is granted for the appellant to appeal against the Tribunal's decision ORDERS: 2. Leave is refused for the appeal to extend to the merits of the Tribunal's decision 3. The appeal is dismissed.4. The appellant is to pay the respondent's costs as agreed, or if not agreed, as assessed.

REASONS FOR DECISION Introduction 1 Dr O'Sullivan is a psychiatrist. He has appealed against a decision of the Tribunal dismissing one of his complaints of victimisation as lacking in substance: Anti-Discrimination Act 1977 (AD Act), s 102. The complaint was against the NSW Medical Board. On 1 July 2010, the NSW Medical Board ceased to exist and was replaced by the Medical Council of NSW. As there is no longer a legal entity in existence with the name NSW Medical Board, I have substituted the Medical Council of NSW as the respondent in these proceedings: Interpretation Act 1987, s 53. In these reasons, we continue to refer to the Medical Board as that was the entity whose conduct was the subject of Dr O'Sullivan's complaint.

2 The background to the victimisation complaint is that on 14 October 2008 the NSW Medical Board (now the Medical Council of NSW) required Dr O'Sullivan to be examined by a psychiatrist, pursuant to its powers under the now repealed Medical Practice Act 1992 (MP Act).

3 The purported purpose of requiring Dr O'Sullivan to be examined by a psychiatrist was to determine whether Dr O'Sullivan had any physical or mental impairment that would have detrimentally affected his capacity to practise as a psychiatrist. Dr O'Sullivan claimed that this requirement constituted a 'detriment' under s 50 of the AD Act: (1) It is unlawful for a person ("the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

4 According to Dr O'Sullivan, the Medical Board had referred him to a psychiatrist because he was involved in two complaints to the Anti-Discrimination Board (ADB) in 2007 (the "2007 complaints"). Those complaints were as follows: a) in September 2007, Dr O'Sullivan assisted a person, who we refer to by the pseudonym MA, to complain to the ADB about a decision of the Health Care Complaints Commission (HCCC); and b) in July 2007, Dr O'Sullivan was a co-complainant with Mrs Marilyn Lewis, in a complaint to the ADB about alleged conduct of the HCCC.

5 In order to constitute a breach of the victimisation provisions of the AD Act, the Medical Board's conduct in requiring Dr O'Sullivan to see a psychiatrist, must have constituted a 'detriment' and been 'on the ground' that Dr O'Sullivan had alleged that any person had committed an act which would amount to a contravention of the AD Act or done anything else by reference to the AD Act: AD Act, s 50(1)(b) and (d).

6 At [47] of its decision, the Tribunal characterised the victimisation the subject of this appeal in the following terms: (a) during the relevant period, there was close contact between the Medical Board and the HCCC so far as their respective dealings with Dr O'Sullivan were concerned; (b) . . . the Committee's decision (on 14 October 2008) to require him to attend a psychiatric examination (was a) . . . consequences of this interaction; and (c) one of the motivations underlying the actions of relevant employees of the HCCC in seeking to influence the Medical Board to play the role that it did in (this episode). . . was, as the relevant employees of the Board knew, that Dr O'Sullivan had been involved in two complaints made to the ADB in September 2007 about the conduct of the HCCC. 7 The Tribunal noted at [48] that Mr Eaves, Dr O'Sullivan's lawyer, agreed that this formulation represented a 'fair summary' of Dr O'Sullivan's victimisation complaint.

8 Although summary dismissal of proceedings is an 'interlocutory function', the Tribunal's decision to dismiss the complaints finally disposes of his rights. In those circumstances, leave is granted for Dr O'Sullivan to appeal against the Tribunal's decision even though it is an interlocutory decision: ADT Act s 113(2A). Dr O'Sullivan has appealed on questions of law and has sought leave for the appeal to be extended to the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997, (ADT Act), s 113.

9 Several of the questions of law identified by Dr O'Sullivan's lawyer, Mr Gormly, related to the Tribunal's consideration of s 54 of the AD Act. That provision states that, "Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of any other Act, whether passed before or after this Act." The "other Act" in this case was the MP Act which gave the Medical Board power to require a medical practitioner to undergo an examination.

10 Mr Gormly made the point on behalf of Dr O'Sullivan that although the Medical Board initially required him to undergo a psychiatric examination pursuant to s 54 of the MP Act, that direction was subsequently rescinded and a new direction made that the examination be conducted pursuant to s 78A. The Tribunal made the following comment in relation to this point at [72]: 72 Although the initial referral of Dr O'Sullivan to a psychiatric examination was, it seems, made under section 54 of the MP Act, the power ultimately relied on was that conferred by section 78A. The circumstances of this change in the source of power that the Medical Board claimed to be applicable are not entirely clear to me. But for reasons that will become apparent, this is not a significant question.

11 Section 54 of the MP Act stated that: 54 Board may require practitioner to undergo examination

(1) The Board may by notice given to a registered medical practitioner against whom a complaint has been made direct the practitioner to undergo an examination by a specified registered medical practitioner or a specified registered health practitioner at a specified time and place. (2) A practitioner must not be directed to undergo an examination under subsection (1) unless it is reasonable to require the examination, given the nature of the complaint against the practitioner. The time and place specified for the examination must be reasonable. (3) The examination is to be at the expense of the Board. 12 Section 78A stated that:

78A Board may require practitioner to undergo examination

(1) The Board may by notice given to a registered medical practitioner who is the subject of a matter referred or proposed to be referred to an Impaired Registrants Panel direct the practitioner to undergo an examination by a specified registered medical practitioner or a specified registered health practitioner at a specified time and place. (2) A practitioner must not be directed to undergo an examination under subsection (1) unless it is reasonable to require the examination, given the nature of the matter that is the subject of the referral or proposed referral. The time and place specified for the examination must be reasonable and the examination is to be at the expense of the Board. (3) If a registered medical practitioner refuses, without reasonable excuse, to comply with a direction to undergo an examination under subsection (1), that refusal is, for the purposes of this Act and any inquiry or appeal under this Act, evidence that the practitioner does not have sufficient physical and mental capacity to practise medicine.

13 The main differences between s 54 and s 78A are that s 54 applies in circumstances where a complaint has been made against the practitioner whereas s 78A applies where the practitioner is the subject of a matter referred or proposed to be referred to an Impaired Registrants Panel. In addition, if a direction is made under s 78A, and the practitioner unreasonably refuses to attend, the refusal is evidence that the practitioner does not have sufficient physical and mental capacity to practise medicine.

14 The questions of law that Dr O'Sullivan identified in relation to these issues were as follows: 1. Whether the respondent's direction on 14 October 2008 to the appellant to undergo psychiatric examination pursuant to section 54 MPA (the s 54 direction) was made under the statutory authority of section 54 of the MPA such that the Tribunal misapplied section 54 of the AD Act. 2. Whether, on the proper construction of section 54 of the MPA, the Tribunal asked itself the correct question in considering the appellant's claim of victimisation in relation to the section 54 direction. The correct question included whether the respondent's section 54 direction, that the appellant undergo the medical examination, was reasonable given the nature of the complaint against the appellant (and not by way of victimisation). 3. Whether the Tribunal failed to exercise its jurisdiction in not considering the appellant's claims of victimisation in relation to the section 54 direction made on 14 October 2008, separately from the later direction made under section 78A of the MPA. 4. Whether in considering the appellant's claim to victimisation in relation to the section 54 direction the Tribunal should have made a finding on whether the direction was a detriment, both in itself, and also having regard to the misapplication of s 54(2) of the MPA.

15 The first ground is misconceived because in deciding to dismiss the victimisation complaint as lacking in substance, the Tribunal did not refer to s 54 of the AD Act. Its consideration of that issue was confined to the complaint of disability discrimination. Although Mr Lynch, representing the Medical Board, conceded that he made submissions in relation to the application of s 54 of the AD Act in relation to the victimisation complaints and the disability discrimination complaint, the Tribunal's reasons for decision make it clear that the s 54 defence was considered only in relation to the disability discrimination complaint. That complaint was not the subject of appeal. Consequently any question of law Dr O'Sullivan has identified in relation to the interpretation or application of section 54 of the AD Act does not arise for consideration.

16 The second ground is also misconceived. We accept that any direction given under s 54 or 78A of the MP Act must be reasonable given the nature of the complaint or the matter that is the subject of the referral or proposed referral. However, the 'correct question' for the Tribunal was whether one of the reasons for that referral was the fact that Dr O'Sullivan had participated in the 2007 complaints. The correct question was not whether the direction was reasonable.

17 The third ground was whether the Tribunal failed to exercise its jurisdiction in not considering the appellant's claims of victimisation in relation to the section 54 direction made on 14 October 2008, separately from the later direction made under section 78A of the MP Act. Again, this question is misconceived because both s 54 and s 78A allow the Medical Board to require a practitioner to undergo examination in certain circumstances. It was the conduct of the Medical Board in making such a direction that was the subject of Dr O'Sullivan's complaint. That conduct is relevantly the same in both cases. The difference between the two provisions may be relevant to the question of whether the s 54 AD Act defence applies, but the possible application of that defence was not part of the Tribunal's reasoning in relation to the victimisation complaint. As the Tribunal said at [72], whether the direction was made under section 54 or s 78A, is not significant. The conduct about which Dr O'Sullivan complained was the making of the direction to attend a psychiatric examination. In the absence of any consideration of section 54 of the AD Act, the section under which that direction was made was not relevant.

18 The fourth ground relates to the question of whether the s 54 direction to undergo the examination constitutes a 'detriment' as required by s 50. The Tribunal made no ruling on that question, saying at [69] that it was unnecessary to do so. Dr O'Sullivan's submission was that it was necessary to do so "both in itself and having regard to the misapplication of s 54(2) of the MP Act." We do not agree with either of these submissions. It was not necessary for the Tribunal to make a finding as to whether being referred for psychiatric assessment constitutes a detriment under s 50 of the AD Act because other factors had satisfied the Tribunal that the victimisation complaint was lacking in substance. Secondly, we have found that the Tribunal did not misapply s 54(2) of the MP Act. The question of for the Tribunal was not whether the direction was unreasonable but whether one of the reasons for that referral was the fact that Dr O'Sullivan had participated in the 2007 complaints.

19 The remaining questions of law relate to the issue of causation, that is whether the decision to refer Dr O'Sullivan for psychiatric assessment was made 'on the ground of' his involvement with the 2007 complaints to the Anti-Discrimination Board. The Tribunal's finding on this issue can be found at [51] and [61] to [65]: 51 First, there was no specific allegation in the Points of Claim, and indeed no evidence, that at the time of the Medical Board's participation in the two decisions claimed by Dr O'Sullivan to amount to victimisation, any relevant officer of the Board knew or suspected that he had been involved in the two complaints made in September 2007 to the ADB against the HCCC. The first time that either of these complaints was mentioned in correspondence between the Medical Board and the HCCC was in Mr Pehm's letter to Dr Dix outlined above at [43 - 44]. This was written on 13 November 2008, after the two decisions had been made. Similarly, Mr Lynch argued, no claim of victimisation could be based on Dr O'Sullivan's complaint to the ADB about the Board 's own conduct, because this complaint was made on 18 November 2008. These contentions showed that a vital component of victimisation, as defined in section 50(1), had not been sufficiently alleged and could not be established. . . . 61 In my opinion, the material put before me falls very far short of showing that any knowledge or suspicion that relevant officers of the Medical Board had regarding either or both of the complaints made by Dr O'Sullivan about the HCCC - not about the Board itself - to the ADB in September 2007 constituted one of the 'real', 'genuine' or 'true' reasons why the Board acted as it did in relation to either of the two decisions that amounted, according to him, to victimisation.

62 Dr O'Sullivan claimed in fact that these decisions were prompted by a wide range of other motivations: for example, his complaint to the Office of the Legal Services Commissioner about Ms Mobbs' conduct. Paradoxically, the fact that he made a number of such complaints to authorities other than the ADB, inducing the Conduct Committee to characterise him as 'vexatious', makes it all the harder to rule that he has brought forward any tangible evidence to suggest, let alone to prove, that one of the 'real', 'genuine' or 'true' reasons motivating the Medical Board during 2008 was the fact that he had been involved in the making of two complaints about the HCCC to the ADB in September 2007. My reasoning here may be compared with that of a Tribunal Panel (in which I presided) in MT v AA [2009] NSWADT 268 at [93 - 94].

63 In view of the lack of tangible evidence in the material put before me tending to substantiate this important component of Dr O'Sullivan's claims of victimisation, it must be assumed that if this case were to proceed to a full public hearing, he or his counsel would seek to obtain such evidence from cross-examination of witnesses at the hearing. These might include people who were present at the relevant meetings of the Conduct Committee. . . .

64 As indicated by the Appeal Panel in Margan v University of Technology Sydney (EOD) [2003] NSWADTAP 65 at [11] (see [17] above), I must 'have regard... to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred'. In the light of what I have just said about the matters to be proved by Dr O'Sullivan, I do not believe that there is any such 'reasonable possibility'. This is, to repeat a phrase cited by the Appeal Panel in the same case at [13], a claim 'which presents no more than a remote possibility of merit'.

65 In reaching this conclusion I have taken into account the fact that, as stated above at [41], the minutes of the meeting of the Conduct Committee on 14 October 2008 included the following passage: Dr O'Sullivan states that he has made complaints to ICAC, the Ombudsman, the Legal Services Commissioner, the Anti-Discrimination Board, the Privacy Commissioner and the Administrative Decisions Tribunal about Board staff.

20 The questions of law identified by Dr O'Sullivan were as follows: Whether, in determining both a lack of causative link to establish victimisation and the absence of a reasonable possibility that documents and evidence could establish this link, the Tribunal made an error of law.

21 The particulars of the alleged error were as follows: a) taking into account a lack of evidence before it of the Medical Board's knowledge of the appellant's role in the 2007 complaints; b) failing to ask itself the correct questions concerning the existence of a serious question of fact to be determined, that is the Medical Board's knowledge of Dr Sullivan's role in the 2007 complaints which made the order for summary dismissal inappropriate.

22 In oral submissions Dr O'Sullivan's representative clarified that the Tribunal had erred by not showing sufficient caution when considering whether to summarily dismiss Dr O'Sullivan's complaint. Dr O'Sullivan's representative highlighted a passage from Margan v University of Technology Sydney (EOD) [2003] NSWADTAP 65, quoted by the Tribunal at [17]:

11 Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. ( Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of 'taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken 'at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred.

23 Mr Gormly submitted, on the basis of this passage, that because there was a serious question of fact to be determined, summary dismissal was inappropriate. That question of fact was whether the Medical Board knew of Dr O'Sullivan's role in the 2007 complaints. Impliedly, the Tribunal did not consider that there was a serious question of fact to be determined because Dr O'Sullivan had not provided any evidence that the Medical Board had any such knowledge. That conclusion did not involve an error of law. Furthermore, it is apparent from the Tribunal's decision that it did apply the test set out in this passage. Mr Gormly's objection appears to be that the Tribunal should have come to a different view. That is not a question of law.

24 Legal principles for granting leave. It is not necessary for the Appeal Panel to first identify an error of law before granting leave for an appeal to be extended to the merits of the Tribunal's decision: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. The onus of proof lies on the party applying for leave and the standard of proof is on the balance of probabilities: World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 at [25] per Sully J. The discretion is open and unfettered but must be exercised in a fair and just manner having regard to the purpose of the relevant legislation: Jones v Ekermawi [2009] NSWSC 143 at [13]. Certain inferences can be drawn from the fact that leave is required. They include that the need for leave is a 'control filter' designed, among other things, to protect respondents from the cost of a full hearing of appeals which should not properly be entertained: World Best Holdings Ltd v Sarker & Anor, per Sully J at [25]. Circumstances which may justify leave being granted include where the Tribunal has gone about its fact finding process in such an unfair or unorthodox manner that it is likely to produce an unfair result: K v K [2000] NSWSC 1052 at [10] to [15]. However, "merely to suggest that there is a bona fide challenge to a decision of fact is not enough to require the Appeal Panel to grant leave to appeal.": Abdul-Karim v the Council of the New South Wales Bar Association [2005] NSWCA 93 at [34] per Mason P (Ipp JA and Hunt AJA agreeing).

25 Application for leave. The Amended Notice of Appeal relies on some of the questions of law discussed above as grounds for seeking leave to extend the appeal to the merits. For the same reasons that we have decided that the Tribunal has made no error of law in relation to those grounds, we are not satisfied that leave should be granted to extend the appeal to the merits of the Tribunal's decision. The remaining grounds were that leave should be granted because: a) further evidence has been identified; and b) the Tribunal failed to characterise Dr O'Sullivan's complaint about being referred to a psychiatrist as being triggered by complaints he made to the Anti-Discrimination Board in 2008 as well as those made in 2007.

26 Further evidence. The first basis for requesting leave concerns two documents which were not before the Tribunal: the minutes of the Medical Board's meeting of 11 November 2008 and a letter dated the 31 March 2008 written by Dr O'Sullivan to Mr Andrew Dix, former Registrar of the Medical Board. The minutes of the 11 November meeting set out the reasons for rescinding the s 54 direction and making a direction under s 78A of the MP Act. The Conduct Committee came to the view that the complaints made against Dr O'Sullivan did not justify referral to a psychiatrist under s 54 whereas there was sufficient concern about his current mental health status to justify a direction under s78A. Given our finding that the Tribunal was correct to conclude that it did not matter whether the referral was made under s 54 or s 78A, there is no basis on which the minutes should be accepted as fresh evidence.

27 The 31 March 2008 letter contains the following paragraphs: A separate complaint about these appalling allegations (Mr Pehm's allegations that MA is an 'unreliable witness' and a 'fraud') has now gone to the New South Wales Anti-Discrimination Board. The matter will now proceed in the Equal Opportunity Division of the New South Wales Administrative Decisions Tribunal where [MA] will be legally represented. Yet, it was only in Mr Pehm's response letter to the President of the NSW Anti-Discrimination Board, that he finally reveals his true reasons for rejecting [MA's] complaint. And, this was all to do with me and my support for [MA]. (Words in brackets added.)

29 The principles relating to the tendering of further evidence were set out by the Appeal Panel in Building Professionals Board v Hans [2008] NSWADTAP 13 at [52] to [57]. In summary, those principles, so far as they are relevant to these proceedings are: a) the Appeal Panel has power to decide whether to extend an appeal to the merits of the Tribunal's decision and remit the matter or receive fresh evidence, whether or not the decision under appeal contains errors of law; b) if the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be 'affirmatively satisfied' that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was 'likely to have produced a different result'. It is not enough merely to show that the further evidence is 'useful', or that its admission would have given rise to a 'real chance' that the Tribunal would have reached a different decision; c) the stress, inconvenience, uncertainty and additional financial cost to the parties that would be occasioned by a grant of leave must be taken into account;

d) unless the further evidence in respect of which leave is sought was deliberately withheld from the hearing conducted by the Tribunal, 'the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance'

30 Likelihood of a different result. In relation to the first principle, Dr O'Sullivan relied on the more onerous common law test that '. . . it had to be reasonably clear that if the evidence had been available at trial an opposite result would have been highly likely to have been produced': Cottrell v Wilcox [2002] FCAFC 53 at [19]. We have adopted the test summarised by the Appeal Panel in Hans that the further evidence if tendered at first instance, was 'likely to have produced a different result'. Dr Sullivan submitted that if the 31 March letter had been before the Tribunal, it would have been likely to have come to a different view. That submission was not made in relation to the November minutes.

31 It refers to the fact that MA had complained to the ADB about certain conduct and that "the matter will now proceed" to the Tribunal. Dr O'Sullivan alleges in that letter that Mr Pehm's reason for rejecting that complaint is that Dr O'Sullivan had supported MA. Mr Gormly submitted that the letter is inconsistent with the Tribunal's finding at [51] that there was no evidence that at the time the Medical Board decided to refer Dr O'Sullivan to a psychiatrist, any relevant officer of the Board knew or suspected that he had been involved in the 2007 complaints. According to Mr Gormly, the letter is evidence that at least Mr Dix had knowledge of Dr O'Sullivan's involvement in one of those complaints.

32 We accept that if the 31 March letter had been before the Tribunal, there would have been some evidence that Mr Dix knew that Dr O'Sullivan had been involved in MA's complaint to the ADB. However, there was no evidence that Mr Dix had read the letter or passed it on to Board members. It is unlikely that the existence of the letter or the possibility that Board members were influenced by it would have produced a different result because: a) Mr Dix was absent during the part of the 14 October 2008 meeting when Dr O'Sullivan's position was considered; (see [37] of the Tribunal's decision) b) Dr O'Sullivan alleged that Mr Dix prompted the Conduct Committee to refer him for psychiatric examination for several different reasons, only one of which was his involvement with MA's complaint to the ADB (see [33] - [35] and [62] of the Tribunal's decision); c) the Conduct Committee considered the evidence in relation to Dr O'Sullivan's health status; (see [39] of the Tribunal's decision) and d) the Conduct Committee was aware that Dr O'Sullivan had made complaints to several government bodies including the ADB; (see [41] of the Tribunal's decision); 33 Prejudice to the parties. There is significant prejudice to the Medical Board if the appeal is extended to the merits and either heard by the Appeal Panel with the new evidence or remitted to the Tribunal at first instance. The Medical Board would incur further financial costs and delay.

34 Reason for not tendering the evidence. The most authoritative statement of principle in relation to this consideration was that given by the High Court in CDJ v VAJ [1998] HCA 67 at [116]: The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.

35 While there was no suggestion that the letter had been deliberately withheld, it was a letter written by Dr O'Sullivan and was in his possession. Dr O'Sullivan was legally represented, although it must be acknowledged that Mr Eaves came into the proceedings relatively late.

36 Dr O'Sullivan submitted that as the letter was also in the Medical Board's possession they should have produced it to the Tribunal in accordance with their obligations as a model litigant. There was no obligation on the Medical Board, either as a model litigant or otherwise, to tender the letter in evidence before the Tribunal.

37 Conclusion. Taking all these matters into account, while the 31 March letter provides some evidence that Mr Dix knew that Dr O'Sullivan had been involved in MA's complaint to the ADB, reading the Tribunal's decision as a whole, that evidence is not likely to have led the Tribunal to refuse the Medical Board's application for summary dismissal. We are not satisfied that we should grant leave for the appeal to be extended to the merits of the Tribunal's decision so that the further evidence can be tendered.

38 2008 complaints. The second basis on which Dr O'Sullivan said that the Appeal Panel should grant leave to appeal on the merits, was that the Tribunal failed to characterise his victimisation complaint as being triggered by complaints he made to the ADB in 2008 as well as in 2007. Even if we accept that such a characterisation was discernible from the material Dr O'Sullivan provided to the ADB and the Tribunal, his legal representative agreed with the Tribunal's characterisation of his victimisation complaint at [47] referring to it as a 'fair summary'. In those circumstances, it would not be fair or just to grant leave for a merits appeal.

39 Both parties applied for costs. The general rule is that each party bears his or her own costs: ADT Act, s 88. The Tribunal has a discretion to award costs but only if it is satisfied that it is fair to do so having regard to the matters set out in s 88(1A). The relevant provisions of s 88 are as follows: (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant.

40 In AT v Commissioner of Police [2010] NSWCA 131, Basten JA, referred at [33] to 'the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel'. His Honour then said:

Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the [ADT Act].

41 The nature of the Tribunal's jurisdiction is to hear and determine complaints made under the ADT Act. One of the objects of the ADT Act is 'to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair: ADT Act, s 3(b).

42 The basis for the Medical Board's application was that Dr O'Sullivan had vexatiously conducted the proceedings and/or that his appeal was weak. While we are not satisfied that the appeal was conducted vexatiously, it is apparent from our reasons for decision that the grounds of appeal were extremely weak. Section 88(1A)(c) does not require us to find that the appeal had no tenable basis in law or fact. The fact that there was a substantial disparity between the relative strengths of the parties' claims is, by itself, a relevant consideration in favour of awarding costs: Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 at [47]. Given that this was an appeal against a summary dismissal decision and the grounds of appeal were extremely weak, it is fair to award costs.

43 Dr O'Sullivan's application was that it is fair for costs to be awarded in his favour because the Medical Board did not give the Tribunal the letter of 31 March or the minutes of its 11 November meeting. We do not accept that the Medical Board should have provided the Tribunal with the 31 March letter or the November minutes. Dr O'Sullivan's application for costs is refused.

Orders 1. Leave is granted for the appellant to appeal against the Tribunal's decision. 2. Leave is refused for the appeal to extend to the merits of the Tribunal's decision. 3. The appeal is dismissed. 4. The appellant is to pay the respondent's costs as agreed, or if not agreed, as assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.