PANEGYRES -v- MEDICAL BOARD OF AUSTRALIA [2020] WASCA 58 | Case summary

PANEGYRES -v- MEDICAL BOARD OF AUSTRALIA [2020] WASCA 58 | Case summary | Zoe

[110]

This is a consolidated appeal by the appellant (Dr Panegyres) against findings of professional misconduct by the State Administrative Tribunal (Tribunal) and consequential penalty orders. In the proceedings before the Tribunal, the respondent (the Board) alleged that Dr Panegyres, a neurologist, had been guilty of professional misconduct in relation to certain matters arising from his care of a mentally incompetent person, KW. Amongst other things, the Board alleged, and the Tribunal found, that Dr Panegyres had overcharged KW by charging KW for services which were not clinically indicated and were not reasonably necessary for his wellbeing. The Tribunal found no conscious impropriety on the part of Dr Panegyres.
The Tribunal ordered that Dr Panegyres be suspended from practice as a registered medical practitioner for six months, and ordered him to pay the Board's costs fixed in the sum of $264,400. The suspension order has been stayed pending the determination of this appeal.
The Tribunal's reasons with respect to the misconduct findings are conveniently referred to as the 'Conduct Decision',[1] and the Tribunal's reasons in relation to penalty will be referred to as the 'Penalty Decision'.[2]
By this appeal, Dr Panegyres raises seven grounds of appeal. The first three relate to the Conduct Decision, and the last four relate to the Penalty Decision. They are to the following effect:
1. The Tribunal erred in the Conduct Decision in finding that Dr Panegyres contravened a provision of a relevant professional standard[3] concerning financial exploitation of patients.
2. The Tribunal's reasons in the Conduct Decision fail to explain the intellectual process by which it arrived at a finding of professional misconduct.
3. Insofar as the Tribunal's reasons in the Conduct Decision disclose that it found multiple instances of unprofessional conduct, together constituting professional misconduct, the Tribunal erred in characterising Dr Panegyres' conduct as multiple instances of unprofessional conduct, rather than conduct amounting to one event of unprofessional conduct.
4. Related to ground 1, the Tribunal erred in the Penalty Decision in assessing the penalty to be imposed on the basis that Dr Panegyres had financially exploited KW.
5. The Tribunal erred in the Penalty Decision in finding that Dr Panegyres' misconduct was constituted by a sustained course of conduct.
6. (In the event that grounds 1 ‑ 5 fail), the Tribunal erred in the Penalty Decision in imposing a suspension for six months - this was manifestly excessive.
7. The Tribunal also erred in the Penalty Decision[4] in finding that Dr Panegyres should pay costs fixed in the sum of $264,400, because the Tribunal's reasons do not disclose the intellectual process which led to that quantification.
The background to the appeal is set out in detail in the reasons of Vaughan JA. In broad terms and in outline:
1. KW was a private in‑patient of Dr Panegyres at Joondalup Health Campus from 27 November 2012 to 21 February 2013.
2. KW, under Dr Panegyres' care, was diagnosed as having a neurodegenerative disease, involving dementia and Parkinson's disease.
3. On 3 December 2012, Dr Panegyres prepared a medical report for a guardianship and administration application in relation to KW, in which Dr Panegyres confirmed his diagnosis and said, in effect, that KW was incapable of managing his health affairs or his financial affairs.
4. As a result of that application, on 8 January 2013, KW's brother was appointed his guardian, but there ensued some rankling between them.
5. On 22 January 2013, KW's brother was removed from his representative capacity. The Public Advocate was thereupon appointed as KW's limited guardian, and the Public Trustee was appointed as KW's plenary administrator.
6. KW was discharged from the hospital on 21 February 2013, and placed in a nursing home - at which time he ceased to be under the care of Dr Panegyres.
On 3 March 2013, Dr Panegyres raised an invoice for the services provided to KW over the period 27 November 2012 to 21 February 2013 (the 'Invoice').[5] The Invoice was raised against KW, care of the Public Trustee, and was sent to the Public Trustee's postal address. The Invoice was for a total of $25,265.10.[6] Dr Panegyres charged above the AMA List rates.[7] Dr Panegyres received payments under the Invoice from Medicare and a private health insurer totalling $6,166.20. The Public Trustee has not paid the balance.[8] The Board became involved in this matter following a complaint by the Public Trustee.
The Tribunal (amongst other things) found that Dr Panegyres had overcharged KW by charging him for services which were not reasonably required for his wellbeing and not clinically indicated.[9] Dr Panegyres does not challenge that finding. Indeed, in oral submissions, senior counsel for Dr Panegyres accepted that apart from the first two initial consultations, Dr Panegyres' consultations with KW were approximately double those which were clinically indicated or required for KW's wellbeing.[10] He also accepted that at the time of providing the services, Dr Panegyres had in contemplation that a fee would be charged for them.[11]
Nor does Dr Panegyres challenge the finding (essentially based on Dr Panegyres' own diagnosis at the time) that at all material times, KW had dementia and was incapable of managing his health or financial affairs. Dr Panegyres also accepted before the Tribunal[12] that he did not seek the consent of KW's brother, as initial guardian, or the consent of the Public Trustee, as KW's subsequent plenary administrator, in relation to the fee arrangements for the services provided to KW. Nor is there a challenge to the finding that he did not consult with the Public Advocate as to the nature and scope of the services required for KW's ongoing treatment.[13]
For the reasons which follow, in outline:
1. The Tribunal erred by not disclosing, in the Conduct Decision, its reasons for finding Dr Panegyres guilty of professional misconduct.
2. There should be a substituted order that Dr Panegyres was guilty of unprofessional conduct.
3. The parties should be heard further on any consequential (penalty) orders pursuant to s 196(2) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law).
4. The Tribunal erred by not disclosing, in the Penalty Decision, its reasons for finding that Dr Panegyres should pay costs fixed in the amount of $264,400, and (subject to [111] below) the determination of such costs should be assessed by a member of the Tribunal to be nominated by the President of the Tribunal in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA).

[128]

Having regard to the Board's allegations referred to in the next section of these reasons, it is convenient to mention here the effect of the Conduct Code and to refer to its provisions insofar as they are relevant to this appeal.
The basic structure of the Conduct Code has been outlined by Vaughan JA. As his Honour has observed, the Conduct Code describes itself as a code specifying what is expected of all doctors registered to practise medicine in Australia.[15] It sets out the principles that characterise good medical practice and makes explicit the standards of ethical and professional conduct expected of doctors by their professional peers and the community.[16] It brings together standards at the core of medical practice.[17] The Conduct Code provides, however, that it is not a substitute for the provisions of legislation and case law. If there is any conflict between the Conduct Code and the law, the law takes precedence.[18]
The Conduct Code has been developed and approved pursuant to s 39 of the National Law. It thus attracts s 41 of the National Law and is 'admissible ... as evidence of what constitutes appropriate professional conduct or practice for the profession'.[19]
As Vaughan JA has also observed, there are parts of the Conduct Code that are more aspirational than standard setting. For example, good medical practice is said to involve being considerate to those close to the patient and respectful of their role.[20] It cannot be assumed that any departure from the conduct or practice referred to in the Conduct Code will in all cases amount to conduct to which consequences attach under s 196 of the National Law.
Ultimately, in disciplinary proceedings against a medical practitioner, the question is not whether the impugned conduct is in 'breach' of the Conduct Code. It is whether the conduct, as found, is behaviour on the part of a practitioner that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct.
Clause 3.2.6 of the Conduct Code provides:

[146]

The following preliminary observations may be made about the Board's allegations.
First, Allegation Six alleged conduct 'contrary' to the Conduct Code. In other words, it alleged, in effect, a contravention of the Conduct Code. Putting the allegation that way, however, tended to distract attention from the proper use to which the Conduct Code could be put in the proceedings. As noted earlier, by s 41 of the National Law, the Conduct Code was no more than admissible evidence of appropriate professional conduct or practice.
Secondly, Allegation One appears to have been designed to invoke par (d) of the definition of 'unprofessional conduct'.
Thirdly, the Tribunal found that there was no expert evidence led by the Board identifying what was a generally accepted standard that might be expected of a practitioner such as Dr Panegyres by his professional peers of good repute and competence,[25] against which to judge the actual conduct of Dr Panegyres alleged in this case. There was, however, agreement between the experts that 'it would not be acceptable for the practitioner to charge for any consultations that [were] excessive, unnecessary or otherwise not reasonably required for the persons well‑being'.[26]
Fourthly, whilst it was plainly open to the Board to seek to prove the appropriate professional conduct (against which Dr Panegyres' conduct could be judged) by reference to the Conduct Code, the only allegations by the Board which in terms invoked the Conduct Code were the allegations in Allegation Six. Each of the other allegations, Allegations One, Two, Three, Four, Five and Seven, as a separate instance of alleged misconduct, was not underpinned by the invocation of the Conduct Code (although Allegation Five effectively covered the same subject matter as Allegation Six(c) and Allegation Six (c) included a reference to the Conduct Code).
Fifthly, the Board did not contend that the Tribunal, having regard to the expertise of its members, should make findings as to the appropriate professional conduct in the circumstances of this case without expert evidence and in the absence of the Conduct Code providing evidence as to the appropriate professional standard.[27]

[167]

It is convenient to commence with a consideration of ground 2 - the sufficiency of the Tribunal's reasons in the Conduct Decision. Counsel for the Board was effectively unable to explain the process of reasoning by which the Board had found Dr Panegyres guilty of professional conduct.[37]
We agree that ground 2 succeeds for the reasons given by Vaughan JA at [296] ‑ [300] and [308] ‑ [311]. That is sufficient to uphold ground 2.
In addition, other critical aspects of the Tribunal's reasons (at Conduct Decision [368] ‑ [371]) lacked coherence and consistency, and failed to explain the Tribunal's reasoning process with sufficient certainty.
At Conduct Decision [368], the Tribunal 'specifically' found Dr Panegyres to be 'in breach' of the Conduct Code in four particular respects. The first three reflected, in substance, Allegations Six (a), Six (b) and Six (c), respectively. The fourth appeared to be directed to Allegation Seven, but the Board had not relied on the Conduct Code in respect of Allegation Seven.
Then at Conduct Decision [369], the Tribunal said that a 'breach' of the Conduct Code 'may constitute ... unprofessional conduct'. The implication there is that the four specific 'breaches' of the Conduct Code in Conduct Decision [368] were 'breaches' which 'may' constitute unprofessional conduct. It was incumbent, in our view, for the Tribunal to identify which, if any, of the four specified breaches of the Conduct Code was found to have constituted unprofessional conduct.
Next, at Conduct Decision [370], the Tribunal said that it was 'open' to find, and that it did find, that, in relation to 'Allegations One, Two, Three, Five, Six and Seven', Dr Panegyres' conduct constituted, in effect, professional misconduct. There was no explanation why this was so in a context where (1) the Board, by Allegations One, Two, Five and Seven, had not relied on 'breaches' of the Conduct Code; (2) the only 'breaches' of the Conduct Code as alleged were the Allegation Six 'breaches'; and (3) the import of the Tribunal's reasons at [368] ‑ [369] was that only 'breaches' of the Conduct Code could satisfy a finding of unprofessional conduct or professional misconduct.
Finally, at [371] of the Conduct Decision, the Tribunal returned to the Conduct Code as purportedly providing a basis for its findings of professional misconduct, yet, in substance, two of the four findings of professional misconduct were in relation to allegations for which the Board had not relied on the Conduct Code.
In substance, the first two findings of professional misconduct at [371] of the Conduct Decision[38] corresponded with, respectively, Allegation Six (a) and Allegation Six (b) (and these were allegations in which the Board had relied on the Conduct Code). The third finding at [371] of the Conduct Decision[39] related to Allegation Two (failure to keep records), but the Board had not relied on the Conduct Code in relation to the failure to keep adequate records. The fourth finding of professional misconduct at [371] of the Conduct Decision[40] related to Allegation Seven (charging Medicare), but that finding was made, as indicated earlier (1) despite the Board never having relied on the Conduct Code in that regard; and (2) absent any finding that Dr Panegyres had the actual or constructive knowledge alleged by the Board to be integral to its allegation of professional misconduct in that respect.
The above matters provide an additional basis for upholding ground 2.

[174]

Given that ground 2 should be upheld in any event (raising the prospect of a retrial or this court making substitutive orders), and given that ground 1 sits within a framework which deflected attention from the real issues, it is unnecessary and inappropriate to decide ground 1 on its terms.
However, the arguments in relation to ground 1 included submissions as to the nature and scope of cl 3.2.6 of the Conduct Code. As those arguments will have a bearing upon the question of whether there needs to be a retrial or whether this court ought make substitutive orders, and, if so, what orders, it is convenient at this juncture to consider the effect of cl 3.2.6 of the Conduct Code as supplying evidence as to appropriate professional conduct.
Dr Panegyres' arguments were to the effect that there could be no 'breach' of cl 3.2.6 of the Conduct Code involving financial exploitation of KW because (1) no charges were raised against KW prior to the appointment of the Public Trustee as plenary administrator, (2) the Invoice was the only charge raised for the services provided to KW, and the Invoice was sent to the Public Trustee, a statutory officeholder with competence and experience in managing the affairs of others, who could take advantage of the full services of the Public Service and other agencies and instrumentalities of the State, and (3) cl 3.2.6 of the Conduct Code, on its proper construction, could only be 'breached' where there was a positive intention by the practitioner to financially exploit the patient - which was not this case.[41] The arguments involved the implicit contention that KW's mental incapacity, to Dr Panegyres' knowledge, was not an aggravating circumstance in the assessment of his conduct as a whole.
For the reasons given in [59] ‑ [62] below, the construction of cl 3.2.6 of the Conduct Code advanced by Dr Panegyres' cannot be accepted. Also, for the reasons given in [59] ‑ [61] below, the implicit contention in Dr Panegyres' submissions that his knowledge that KW was an incompetent person was not an aggravating circumstance when considering the gravity of his conduct, cannot be accepted.
Clause 3.2, in its preamble to (relevantly) cl 3.2.6, commences with a normative statement to the effect that 'high standards of professional conduct' are 'required' of a medical practitioner. It is fundamentally concerned with ethical conduct in the doctor's dealings with a patient.
The ethical conduct to which cl 3.2.6 is directed 'involves' both 'recognising ... and not exploiting' the patient in the ways specified. It expresses two related ideas - there is a power imbalance in the doctor/patient relationship which the doctor should recognise and not 'exploit', ie, should not unfairly or unethically take advantage of.[42]
Amongst other things, cl 3.2.6 speaks of a standard by which a doctor is expected to recognise, and guard against the prospect that, because of the power imbalance, the patient may be susceptible to express or implicit suggestions involving the conferral of sexual or financial benefits (beyond a proper fee for service in all the circumstances) on the doctor. Conduct by a doctor which encourages the conferral of such sexual or financial benefits on the doctor is inconsistent with the ethical standard referred to in cl 3.2.6 on its proper construction, even though the doctor subjectively does not intend to take advantage of the imbalance of power in the relationship and exploit the patient.
Relevantly for present purposes, overcharging the patient for the provision of professional services is inconsistent with the ethical standard referred to in cl 3.2.6 of the Conduct Code.
However, even if that conclusion were wrong, and overcharging without a subjective intention to exploit is not inconsistent with cl 3.2.6, the point has no real significance in the context of this particular case. That is because the Tribunal also found, by reference to the expert evidence, that it was not acceptable for Dr Panegyres to charge for any consultations that were excessive, unnecessary or otherwise not reasonably required for KW's wellbeing.[43] That finding is effectively unchallenged.[44]

[178]

The basal character of the Tribunal's unchallenged (or unsuccessfully challenged) findings is that Dr Panegyres was guilty of overcharging KW by charging KW, via the Invoice, for services which were not clinically indicated and were not reasonably required for his well‑being (which, for convenience may be referred to, in shorthand, as 'over‑servicing').
Over‑servicing itself is a form of unprofessional conduct (see par (d) of the definition of 'unprofessional conduct' in s 5 of the National Law). Even where the doctor does not charge the patient for the over‑servicing, over‑servicing may cause the patient trouble, inconvenience, expense (eg, concomitant pharmaceutical or hospital charges or travel expenses), and even injury if invasive procedures are unnecessarily taken. Also, given the power imbalance between the doctor and patient, the patient is ordinarily unable to form a considered view as to whether the services provided are clinically indicated or not and whether he or she should consent or refuse consent to such services or treatment.
In the case of KW, there was no finding to the effect that Dr Panegyres' over‑servicing caused KW any material trouble, inconvenience, other expense or injury. Rather, it was the charging for the over‑servicing which constituted the basal feature of the Tribunal's adverse findings, in circumstances which aggravated the inappropriateness of that conduct. The aggravating circumstances were that, to the knowledge of Dr Panegyres, KW, more than ordinary patients, had lacked the insight to assess or query the nature, extent and frequency of the services for which Dr Panegyres was charging by the Invoice, and the rates at which he was charging.
As noted earlier (see [57] above), Dr Panegyres in this appeal implicitly submitted, in effect, that KW's mental incompetence, and Dr Panegyres' knowledge of it, were not aggravating circumstances, given that only one charge was raised, and this was the Invoice sent to the Public Trustee. That submission cannot be accepted for the following reasons:
1. The Invoice was raised against KW, albeit sent care of the Public Trustee. It created a charge the payment of which would come out of KW's estate.[45]
2. KW, given his incapacity, and to the knowledge of Dr Panegyres, was in no position to appreciate that he was receiving, and was being charged for, services that were not clinically indicated and were not reasonably required for KW's well‑being.
3. Following their appointment, Dr Panegyres did not (1) consult with and consider the views of the Public Advocate about KW's ongoing treatment needs, or (2) obtain the consent of the Public Trustee (or KW's brother when he was guardian) in relation to his fee arrangements in a context where consent to fees would ordinarily presuppose the patient (or their representative) having an adequate understanding of the nature and scope of the services to be provided. Accordingly, Dr Panegyres did not obtain, when the opportunity arose, consent as to the nature and frequency of the services he was providing or the charges for those services.
4. The Public Trustee was not in a position to form a considered view, or engage in a reasoned discussion with, Dr Panegyres as to whether the services charged to KW were reasonable, including whether they were clinically indicated and reasonably required for KW's well‑being, given that:

[182]

Next, it is necessary to consider the question of whether this was a single instance or involved multiple instances of inappropriate conduct (to use a neutral expression at this stage).
In this case, no specific occasions were identified on the evidence as representing over‑servicing. Rather, looking at the period in which KW was under the care of Dr Panegyres as a whole, the finding was, in effect, that (apart from the first two weeks) Dr Panegyres' consultations with KW were effectively double what was clinically indicated or reasonably required for KW's well‑being. Charging for this over‑servicing was made through the issue of the (single) Invoice.
The overcharging occurred in the aggravating circumstances that, to Dr Panegyres' knowledge, KW was mentally incompetent. Dr Panegyres' failures to consult with the Public Advocate or to obtain the consent of the Public Trustee are, in substance, relevant to the operative effect of the aggravating circumstances in this case.
In these circumstances, the better characterisation of the inappropriate conduct is that it constituted a single instance of overcharging KW whilst he was under Dr Panegyres' care at Joondalup Health Campus.
Further, the Tribunal's finding[47] of a breach of the Conduct Code in failing to keep adequate records (relating to Allegation Two) ought not be treated as a separate finding of unprofessional conduct, as the Board never alleged such a case.[48] Also, the finding as to charging Medicare (in relation to Allegation Seven)[49] ought not be treated as a separate finding of unprofessional conduct, for three reasons. First, insofar as it constitutes a finding that Medicare was charged for unnecessary services, it is substantively encompassed within the finding of overcharging. Secondly, the burden of the Board's case was that Dr Panegyres knew or ought to have known that he could not charge Medicare, and the Tribunal made no such finding.[50] Thirdly, the Tribunal's adverse finding was based on a breach of the Conduct Code, but the Board did not advance its case on that basis.[51]

[183]

The basal feature of the Tribunal's adverse findings were as stated in [68] above - subject to a consideration of the mental element of Dr Panegyres' conduct.
The Tribunal's findings as to overcharging are to be understood, and their significance assessed, in the context that:
1. The Tribunal (as the Board accepted in this appeal)[52] made no finding of dishonesty or conscious impropriety against Dr Panegyres.
2. The Board alleged, but failed in its allegation, that Dr Panegyres had knowingly charged for services that he did not in fact render to KW. (As discussed later, the cross‑appeal in this regard should be dismissed.)
In other words, the gravamen of the Tribunal's Conduct Decision (on the unchallenged findings) is that Dr Panegyres overcharged KW by charging for services which were, objectively, clinically not indicated and not reasonably required, in the aggravating circumstances mentioned, but did so without any conscious impropriety that he was overcharging, and without any subjective intention to charge more than a proper fee for services rendered.
As to the aggravating circumstances - that, to Dr Panegyres' knowledge, KW was mentally incompetent - it is implicit in the Tribunal's findings that Dr Panegyres did not refrain from consulting the Public Advocate as to treatment, or the Public Trustee as to fees, for fear that approval would not be forthcoming.
The Tribunal's Conduct Decision should also be understood in the context that the following matters were not in issue before the Tribunal:[53]
1. There was no criticism of the quality of care provided to KW by Dr Panegyres.
2. There was no suggestion that Dr Panegyres was in any way responsible for the length of KW's stay in the hospital, or that he did anything other than use his best endeavours to protect KW and have him placed in an appropriate care facility as soon as this could be achieved.
3. Insofar as there was a demonstrated deficiency in the hospital notes, this deficiency was not relevant to and had no adverse effect upon KW's clinical care.

[192]

Dr Panegyres, in this appeal, did not dispute that his conduct in overcharging KW for services not clinically indicated and not reasonably required for his wellbeing constituted unprofessional conduct.[60] Indeed, in the 'orders sought' by Dr Panegyres in the appeal, he invited the court to make a finding that he was guilty of unprofessional conduct.[61]
In our view, Dr Panegyres' conduct in overcharging KW, even without the aggravating circumstances that, to Dr Panegyres' knowledge, KW was mentally incompetent, would justify a finding of unprofessional conduct. The aggravating circumstances in this case confirm that conclusion.
The real question for decision is whether the conduct goes beyond unprofessional conduct so as to be professional misconduct, ie, that it was unprofessional conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[62]
In assessing the gravity of the conduct, consideration should be had to the amount of the overcharging. As Vaughan JA observed,[63] the overall effect of the overcharging was that, by the issue of the Invoice for $25,000 (approximately), Dr Panegyres overcharged KW $9,000 (approximately). This was not a trifling amount. Also, the aggravating circumstances in which the conduct occurred ought be taken into account (see [68] ‑ [70] above).
On the other hand, material weight should be given to the absence of any conscious impropriety in the conduct, as discussed in [77] ‑ [79] above, and the other circumstances referred to in [80] above.
Weighing all these matters together, on the facts not in controversy, we are not persuaded that the unprofessional conduct of Dr Panegyres is of a character which could fairly be described as substantially below the standard reasonably required of a registered medical practitioner of an equivalent level of training or experience as Dr Panegyres. In this regard, the absence of any dishonesty or conscious impropriety otherwise is a significant factor. Further, even if we were wrong in characterising the conduct as a single instance of unprofessional conduct, and the conduct should properly be characterised as split into (1) over‑servicing, (2) overcharging in consequence of over‑servicing, and (3) failing to consult the Public Advocate and to obtain the consent of the Public Trustee, those matters do not, taken together, disclose professional misconduct within the meaning of par (b) of the definition of that term in s 5 of the National Law. Those individual events of unprofessional conduct (on the present assumption) do not reflect misconduct of a gravity greater than that when considering Dr Panegyres' conduct viewed as a single whole. Nor would those matters, together with Allegations Five and Seven (even if those allegations were properly regarded as instances of unprofessional conduct, contrary to the conclusion in [75]), constitute professional misconduct. Allegations Five and Seven are really no more than part and parcel of the relevant overcharging.
The conclusion that Dr Panegyres was guilty of unprofessional conduct still leaves open for consideration the question of penalty, and the potential application of s 196(2) of the National Law - in relation to which the parties should be heard further. In determining the question of penalty in disciplinary proceedings, the court is to take into account (amongst other things) the relevant circumstances as they exist at the time of the imposition of the penalty orders.[64]
In relation to ground 7 (costs), we agree, as indicated earlier, that ground 7 should be upheld.

[193]

The onus was on the Board to prove that Dr Panegyres charged for services that he did not provide. The onus was not on Dr Panegyres to prove that he had provided the services.
There was no dispute that if the services were provided, they were for neurological services provided at Joondalup Health Campus. Dr Panegyres was the only attending neurologist at the hospital at that time. The neurology service at the hospital was supported by one registrar and two resident medical officers, who shared responsibilities with other medical departments.[65] Neither the registrar nor the residents had any neurological training, and were expected to receive that training from Dr Panegyres.[66] There was evidence from a resident at the time (Dr Ng) to the effect that she worked under Dr Panegyres,[67] usually attended ward rounds with Dr Panegyres as part of the neurology team,[68] and, as the most junior person, was generally the note taker, although sometimes, if the registrar had the file, he would take notes.[69] There was also evidence from the registrar (Dr Tan) who worked with Dr Panegyres at the relevant time.[70] His evidence was to the effect that he attended each of Dr Panegyres' patients as part of his own routine daily ward rounds,[71] that when he was at Joondalup Health Campus, he always accompanied Dr Panegyres when Dr Panegyres did his ward rounds,[72] and that he made notes of the consultations where he was the most junior doctor accompanying Dr Panegyres.[73] Dr Tan's notes indicated that he (Dr Tan) saw KW daily, and Dr Tan said that it was clear from his notes that Dr Panegyres was not present on all those occasions.[74] There was also evidence to the effect that Joondalup Health Campus had a protocol for the maintenance of clinical documentation.[75]
The Tribunal found, in effect, that the medical records of the hospital (including the notes made by the registrar and resident) did not contain a record of many of the consultations the subject of Dr Panegyres' charges to KW.[76] In particular, the Tribunal accepted that if the notes kept by the registrar and the resident did not record Dr Panegyres as being in attendance, he was not there.[77] The Tribunal also found, in effect, that Dr Panegyres did not himself have any clinical notes of many of the consultations for which he charged KW.[78]
Forensically, the issue in relation to Allegation Three ultimately came down to whether Dr Panegyres had provided the services to KW in consultations for which he charged, which were not recorded anywhere in the medical records of the hospital.
In the proceedings before the Tribunal, the Board pointed to the failure by Dr Panegyres to call oral evidence of nurses and other medical staff who were in a position to observe KW and observe the nature and extent of any services provided by Dr Panegyres to KW, and contended that this enlivened the application of the rule in Jones v Dunkel.[79] As to this contention, the Tribunal correctly found, in effect, that if, as was the case, the medical records of the hospital did not disclose the consultations for which Dr Panegyres charged, then no practical purpose would be served in calling individual medical staff and asking about their recollection of events four years previously. Also, as the Tribunal correctly observed, witnesses of that nature were equally available to the Board if it thought it appropriate to call such evidence.[80]
Dr Panegyres' direct evidence on the topic was to the effect that on each of the occasions for which he charged KW, including, relevantly, when there was no record of the consultation, he undertook a full neurological assessment, including a review of KW's medications, his blood pressure, his temperature and his behaviour.[81] The effect of his evidence was that there were consultations, particularly at night, where he would see KW in the absence of junior medical staff or nurses, and in respect of which there would be a 'verbal handover' the next morning. Dr Panegyres did not, however, suggest that the medical records contained evidence of a 'verbal handover' which referred to or recorded a consultation that he had had with KW alone the previous evening.[82]
Dr Panegyres' oral evidence was a key element of the forensic contest on the question of whether he had provided the services for which he was charging KW. Dr Panegyres' explanation of why he did not keep clinical notes of the full neurological assessments which he said he undertook could not be shelved and put to one side without undertaking an assessment of the reliability and credibility of his evidence on this topic as a whole. Yet that is what the Tribunal purported to do when it found that his explanation for not having a record of the services was 'plausible', whilst at the same time saying it was not 'necessary or appropriate' to consider the truthfulness or otherwise of his testimony.[83] Plainly, the veracity of his testimony on oath bore upon whether his explanation for having no clinical notes was 'plausible'. It was both necessary and appropriate for the Tribunal to consider the truthfulness or otherwise of his testimony as a whole, even though, having done so, it would then be open (theoretically at least) to accept parts of his evidence and reject others. The word 'theoretically' is used here because a finding that the evidence should be accepted as to why he had no clinical notes in relation to the relevant consultations would necessarily import a finding that the consultations had occurred.
Had the Tribunal accepted Dr Panegyres' evidence to the effect that he provided the services (having considered, amongst other things, his explanation for not keeping clinical notes), the Board would have failed in its allegation that Dr Panegyres had not provided the services.
On the other hand, had the Tribunal rejected Dr Panegyres' evidence on the topic that would not, in and of itself, have established the Board's case. That is because, generally speaking, disbelief in a witness' evidence of a fact does not establish the contrary.[84] Thus, even if the Tribunal had rejected Dr Panegyres' oral evidence to the effect that he had provided the consultations, the question would still have been whether, upon the evidence that the Tribunal did accept, the Board's allegation had been established in relation to the services for which Dr Panegyres charged KW at the hospital, but which were not recorded in the hospital's records. The Board's case in that event would ultimately have depended on circumstantial evidence (KW not being in a position, through his dementia, to give direct evidence on the topic). The circumstantial evidence would have involved essentially (1) the absence of any record of the consultations in the hospital's medical records, (2) the absence of any clinical notes of Dr Panegyres, and (3) any inferences that might have been available on the evidence as to whether such records or notes would ordinarily have been kept had the services been provided. In assessing the weight to be given to the circumstantial evidence, it would have been open to the Tribunal to take into account that (on the present hypothesis) it disbelieved the testimony of the only person who could have given direct evidence that the services were provided.[85]
In this case, the Tribunal misunderstood and misapplied the burden of the decision in Hewett v Medical Board of Western Australia[86] in finding that it was not 'necessary or appropriate' to consider the truthfulness or otherwise of Dr Panegyres' testimony. Hewett was a case where a medical practitioner allegedly had sexual contact with a patient. The patient and the doctor gave conflicting evidence. The Medical Board of Western Australia found the allegation proven, but did so by essentially asking itself, and answering, the single question as to who was lying - the patient or the doctor. It did so without a consideration of the evidence as a whole.[87] Hewett is not an authority for the proposition that the Tribunal, in disciplinary proceedings, may avoid resolving important factual contests having regard to the evidence as a whole, including the sworn testimony of witnesses. To the contrary, Hewett is consistent with the requirement that the evidence must be looked at as a whole.
However, the cross‑appeal in this case is limited to a question of law.[88] In this matter, the cross‑appeal was not argued on the basis that the Tribunal had failed to make all necessary findings of fact and thereby failed to address and determine the material issues in the case. The Board's cross‑appeal was confined to the question of whether the Tribunal had misapplied the standard of proof by not, in effect, having

[196]

The appellant medical practitioner, Peter Panegyres, seeks to appeal against a finding of the State Administrative Tribunal that he is guilty of professional misconduct. The finding of professional misconduct was that, contrary to the provisions of the Good Medical Practice: A Code of Conduct for Doctors in Australia (Conduct Code), Dr Panegyres:
provided and charged for medical services to a patient, KW, which were not clinically indicated and were not all reasonably required for KW's well‑being;
failed to obtain the consent of KW's administrator to the ongoing treatment arrangements for KW;
failed to keep adequate records or contemporaneous records of the services provided by him to KW including the nature of those services; and
charged Medicare Australia for services for which he was not entitled to charge and charged Medicare Australia for services to KW which were not all clinically indicated or reasonably required for KW's well‑being.
Dr Panegyres also seeks to appeal against a consequential penalty - that he be suspended from practice for six months - and an order that he pay the costs of the Tribunal proceedings in the amount of $264,400. The operation of the suspension order has been stayed by order of Murphy JA made 20 November 2018 pursuant to s 106(1) of the State Administrative Tribunal Act 2004 (WA).
Two separate appeals were instituted (one against the conduct finding and the other against the penalty and costs decision). However, the two appeals were consolidated by order made on 31 October 2018.
The respondent is the Medical Board of Australia. The Board referred Dr Panegyres' conduct to the Tribunal under s 193(1)(a)(i) of the Health Practitioner Regulation National Law (Western Australia) (National Law). The Board resists Dr Panegyres' appeal. The Board also cross‑appeals to the extent that the Tribunal failed to uphold one of the Board's contentions as to Dr Panegyres' conduct, namely, that Dr Panegyres charged for services that were not provided.
The appeal and the cross-appeal both require leave.[91] With leave an appeal on the part of Dr Panegyres as to the finding of professional misconduct and order for suspension may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.[92] That said, Dr Panegyres largely accepts the factual findings made by the Tribunal. His grounds do, however, allege certain factual errors. If leave is granted the cross-appeal by the Board may only be brought on a question of law.[93] Dr Panegyres contended that the Board's application for leave to cross‑appeal did not raise any question of law.

[199]

KW's condition worsened over 2012. By late-August 2012 Dr Panegyres assessed KW as probably having emerging dementia. On 26 November 2012 KW was accompanied by a registered nurse from his place of employment in Paraburdoo and admitted to the emergency department of JHC. On 27 November 2012 KW was admitted to JHC under the care of Dr Panegyres. KW remained an in-patient at JHC until discharged on 21 February 2013. KW was diagnosed as dementing from Lewy body disease. Lewy body disease is a progressive neurodegenerative disorder with dementia and Parkinson's disease.
At the time of KW's admission, Dr Panegyres was the only attending neurologist at JHC. The neurology service was supported by a registrar and two residents. Those medical practitioners shared responsibilities with other medical departments. None of the junior medical staff had any neurological training. As an in-patient at JHC, KW was a private patient under Dr Panegyres' clinical care. However, KW also received medical care from other JHC staff including care by specialists in other areas such as physiotherapy, nursing and cognitive and psychological testing.
Dr Panegyres took leave during the time when KW was an in‑patient (between 25 December 2012 and 6 January 2013). While Dr Panegyres was on leave KW's management was taken over by a general physician, Dr Stephen Richards. Dr Richards did not need to formally review KW during Dr Panegyres' leave.
On 3 December 2012 Dr Panegyres prepared a medical report for a guardianship and administration application in relation to KW. Dr Panegyres confirmed his diagnosis and, among other things, stated his opinion that KW was incapable of making reasonable decisions in relation to his personal healthcare, living situation and financial affairs. On 8 January 2013 the Tribunal appointed KW's brother as his limited guardian (with power to decide living arrangements and make treatment decisions) and plenary administrator. This caused KW some distress; KW made certain accusations in relation to his brother. By an application made 14 January 2013 Dr Panegyres applied for an urgent review of the guardianship and administration order. On 22 January 2013 the Public Advocate was appointed as limited guardian and the Public Trustee was appointed as plenary administrator in place of KW's brother.
But for the complications as to the appointment of a guardian and administrator KW could well have been moved from JHC to a nursing home within days of 14 January 2013. After the appointment of the Public Advocate and the Public Trustee attempts to discharge KW from JHC and admit him to a nursing home were frustrated by two gastroenteritis occurrences at the home. KW was not discharged from JHC until 21 February 2013.
There was no criticism of the quality of care provided by Dr Panegyres to KW. Nor was there any suggestion that Dr Panegyres was in any way responsible for the length of KW's stay at JHC. Also, so far as there was a demonstrated deficiency in hospital notes concerning KW, the deficiency was not relevant to and had no adverse effect on KW's clinical care.
Dr Panegyres gave evidence that his practice was not to issue an invoice for his services to private in‑patients until the patient had been discharged.[94] That is what occurred in relation to KW. Dr Panegyres said that he kept handwritten billing sheets of attendances on in‑patients in his examination bag.[95] The attendances were recorded on a weekly basis.[96] Also on a weekly basis Dr Panegyres gave his practice manager, Patricia Castledine, the completed billing sheets for discharged in‑patients.[97] It was Ms Castledine who prepared Dr Panegyres' invoices to private in‑patients. Dr Panegyres' evidence was that he delegated that task to Ms Castledine.[98] Ms Castledine produced invoices on the basis of the billing sheets as maintained by Dr Panegyres.[99]
Dr Panegyres' evidence was that the handwritten billing sheet, which he compiled, contained a record of attendances and what he believed to be the fee appropriate for each service. Dr Panegyres said that he did not delegate to Ms Castledine the task of deciding what a fair and reasonable fee for his services would be.[100]
The handwritten billing sheets in relation to KW were before the Tribunal.[101] The daily notations referred to 'A' (meaning assessment)[102] and 'R' (meaning review)[103] and often included a handwritten amount. For example, many of the entries referred to a charge of $350 and there were other references to charges of $450, $500 and $1,000. Dr Panegyres' evidence was that the notation recorded the service he delivered to the patient.[104]
On 3 March 2013 Dr Panegyres, through Ms Castledine, generated an Invoice for the services provided to KW over the period 27 November 2012 to 21 February 2013. The Invoice was addressed to KW 'C/- Public Trustee' and sent to the Public Trustee's postal address.
The Invoice was for a total of $25,265.10.
The Invoice was for a period of 87 days. Dr Panegyres was on leave for 13 days during the relevant period. Excluding the leave days the relevant period of the Invoice was 74 days. The Invoice charged for services on 78 occasions. Services were charged for on each day between 27 November 2012 and 24 December 2012 and 7 January 2013 to 21 February 2013.
Most of the services charged for were described in terms of MBS item 116 ('MBS' referring to Medicare Benefits Schedule) with the notation 'Sub Consult Inpatient'. The applicable fee in the Australian Medical Association's List of Medical Services and Fees for costing assistance and guidance for services (AMA List) for MBS item 116 was $134. Ordinarily KW was charged $350 for this item. However, there were 11 occasions on which $74.10 was charged, one occasion on which $500 was charged (11 January 2013) and another on which the charge was $1,000 (14 January 2013). The occasions on which the lesser amount of $74.10 was charged were ones where Dr Panegyres had not physically attended on KW but had instead made a telephone call with nursing staff or the registrar.
The fees charged to KW for other items were also higher than the AMA List fees. Dr Panegyres charged $350 for a subsequent attendance (MBS item 133); the AMA List fee was $255. Dr Panegyres charged $450 for an EEG (MBS item 11000); the AMA List fee was $320.
Dr Panegyres admitted that he charged KW an amount of $350 for cognitive testing on 30 November 2012 and 4 December 2012 that he did not perform. The testing was performed under Dr Panegyres' direction. The parties nevertheless agreed that Dr Panegyres was entitled to charge KW for the cognitive testing performed at his direction and under his supervision.
In relation to the Invoice Dr Panegyres charged Medicare Australia an amount for services said to be provided to KW. That amount was paid. Before the Tribunal it was common ground that an amount of $1,033.50 as charged to Medicare Australia could not be billed to Medicare Australia. The $1,033.50 included 13 amounts of $56.65 charged for by Dr Panegyres by reference to MBS item 116 which did not come within the description of services under MBS item 116. These matters consisted of various telephone calls, the cognitive assessments performed by another practitioner and a report in relation to the guardianship and administration application. The parties agreed that Dr Panegyres was entitled to charge KW (rather than Medicare Australia) for the telephone calls, but said that charges should not have been given an MBS item number.
In total Dr Panegyres received $6,162.20 for the Invoice he provided to KW. An amount of $4,638.15 (which included the $1,033.50) was received from Medicare Australia and a further $1,528.05 was received from KW's private insurer. The Medicare Australia payment and the payment from the private insurer were received after the Public Trustee passed the Invoice on to Medicare Australia and KW's health fund.
The Public Trustee queried the Invoice with Dr Panegyres' practice manager. The officer of the Public Trustee was told that the Invoice represented standard care for a patient in a private hospital under a specialist. Later Dr Panegyres' practice sent an email seeking payment of the outstanding amount in relation to the Invoice. On 27 August 2013 the Public Trustee submitted an online complaint form to the Health and Disability Services Complaints Office. In substance the complaint raised a concern as to the necessity for KW to be consulted every day rather than the amount of the Invoice.

[223]

At the hearing before this court an issue arose as to the proper construction of the term 'unprofessional conduct' and the meaning and effect of the term in par (d). Senior counsel for Dr Panegyres contended that, on the proper construction of the definition, providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well‑being is not inherently or necessarily unprofessional conduct within the meaning of the National Law. On senior counsel's submission it depended on the circumstances. Such behaviour was said to be capable of constituting unprofessional conduct; but, according to the submission, the behaviour was only unprofessional conduct if it was professional conduct that was of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner's professional peers.[109]
That submission cannot be accepted. The term 'unprofessional conduct' is defined as meaning professional conduct of a particular description and including the various matters set out in pars (a) to (h). The use in this way of the concept 'means ... and includes' is to avoid any doubt that what is identified by the inclusions falls within the scope of the designated meaning of 'unprofessional conduct'.[110]
The result is that, while the term 'unprofessional conduct' has a limited meaning, those matters in pars (a) to (h) are taken to fall within the scope of the designated meaning. Thus providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well‑being is unprofessional conduct. That conclusion is consistent with what was said by this court in Singh v Medical Board of Australia.[111]
Accordingly, where the conduct meets the criteria in par (d) of the definition of unprofessional conduct it is not necessary to go back to the designated meaning and also be satisfied that the behaviour constitutes professional conduct that is of a lesser standard than that which might reasonably be expected of the practitioner by the public or his or her professional peers. That said, what amounts to provision of health services of a kind that are 'excessive, unnecessary or otherwise not reasonably required for the person's well-being' must be understood in the context of the designated meaning and the inclusive instances of unprofessional conduct in (a) to (c) and (e) to (h). There is, in any case, an evaluative exercise that must be carried out in determining whether health services are excessive, unnecessary or otherwise not reasonably required for a person's well‑being.
Unlike the other two terms, the definition of professional misconduct is inclusory and does not contain an exhaustive statement of the concept. Section 5 of the National Law provides:

[228]

As so defined 'professional misconduct' has both a performance component (par (a) and par (b)) and a conduct component (par (c)).[112] The Board's case against Dr Panegyres was advanced only in terms of the performance component. It should also be noted that there is a difference between pars (a) and (b) of the non-exhaustive definition of 'professional misconduct' in s 5. Paragraph (a) is concerned with a single instance of unprofessional conduct; par (b) is concerned with more than one instance of unprofessional conduct, ie multiple instances. As will be seen, in the present case the Board relied on both parts of the definition.
Under pars (a) and (b) of the definition of 'professional misconduct', there is no category of unprofessional conduct which is incapable, depending on the circumstances, of giving rise to professional misconduct.
It follows from the non-exhaustive nature of its definition that the concept of professional misconduct is wider than that which is provided for in pars (a) to (c). 'Professional misconduct' under the National Law can include conduct which does not fall within any of pars (a), (b) or (c) in the definition; for example, conduct which was infamous conduct in any professional respect in the sense of being conduct that would be reasonably regarded as disgraceful or dishonourable by a practitioner's professional brethren of good repute and competency[113] would be professional misconduct. It is, however, unnecessary to explore the limits of the concept of professional misconduct. In its referral the Board put the allegation solely in terms of pars (a) and (b) of the s 5 definition. For that reason it was not open to the Tribunal to find professional misconduct on any wider basis; and the Tribunal did not purport to do so.
A finding of professional misconduct under pars (a) or (b) of the s 5 definition involves, in substance, two elements:
1. First, the practitioner's conduct as established must constitute one (in the case of par (a)) or more (in the case of par (b)) instance or instances of unprofessional conduct. (As to this element it is necessary to draw on the s 5 definition of 'unprofessional conduct'.)
2. Second, the conduct must individually (in the case of par (a)) or taken together (in the case of par (b)) amount to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
The second element involves answering three questions:
1. What level of training or experience is possessed by the practitioner?
2. What standard of conduct would be reasonably expected of a registered health practitioner of that level or experience?
3. Was the conduct of the practitioner substantially below the standard identified in answer to question 2?
The enquiry as to the second element is thus potentially different to the question that must be considered under the designated meaning of the term unprofessional conduct. For unprofessional conduct the standard is what might reasonably be expected of the practitioner by the public or his or her professional peers. Often, depending on the evidence, that will be the same standard of conduct that would be reasonably expected of a registered health practitioner of the practitioner's level or experience (as applicable under pars (a) and (b) of the definition of professional misconduct). But the standard may not always be the same. More significantly, for professional misconduct it is not enough that the practitioner's conduct is merely less than the standard. The departure must be 'substantially below' the standard.
Some indication of what is required before conduct constituting unprofessional conduct will be classified as professional misconduct because it is conduct that is 'substantially below' the requisite standard is provided by par (c) of the definition of professional misconduct. Paragraph (c) is relevant as it provides part of the context in which pars (a) and (b) are to be construed. Paragraph (c) of the inclusive definition expounds the concept of professional misconduct in terms of conduct that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
Accordingly, for conduct to be 'substantially below' the requisite standard it ought to reflect a corresponding degree of serious departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience. That is not to suggest that conduct is only substantially below the relevant standard where the conduct is inconsistent with the practitioner being a fit and proper person to hold registration. That approach would leave pars (a) and (b) without an independent scope of operation. The relevance of referring to par (c) is to acknowledge the gravity of a finding of professional misconduct - something that is properly taken into account in exercising the evaluative judgement required by pars (a)'s and (b)'s criterion of unprofessional conduct 'substantially below' the appropriate standard.

[242]

In relation to these formal and conclusory findings of professional misconduct, the following observations may be made:
1. The finding referred to in [166(a)] above was, in effect, a finding in terms of Allegation 6(a) (see [158.6(a)] above) in the context of the findings of excessive servicing as alleged in Allegation One (see [158.3] above) and consequential excessive charging as alleged in Allegation Four (see [158.2] above).
2. The finding referred to in [166(b)] above erroneously referred to the failure to consult, in effect, with the Public Trustee in relation to KW's treatment arrangements. Yet, the Board's allegation (Allegation 6(b) ‑ see [158.6(b)] above) and the Tribunal's earlier finding, were to the effect that Dr Panegyres should have consulted about treatment arrangements with KW's guardian, the Public Advocate. When, however, the primary decision is read as a whole, the reference to 'KW's administrator' in the finding referred to in [166(b)] should be taken to mean 'KW's guardian' (the Public Advocate), rather than 'KW's administrator' (the Public Trustee).
3. The finding referred to in [166(c)] above is evidently intended to be based on Allegation Two (failure to keep records), but the Tribunal has gone beyond the Board's allegation in finding that this constituted a breach of the Conduct Code. The Board did not allege a breach of the Conduct Code in that regard.
4. The finding referred to in [166(d)] above is evidently intended to be based on Allegation Seven - charging Medicare for services for which he was not entitled to charge. But, again, the Tribunal has gone beyond the Board's allegation, as the Board did not allege that this constituted a breach of the Conduct Code.
5. Whilst the Tribunal had earlier found that Dr Panegyres had failed to inform the Public Trustee about his fees and charges for KW, and that this constituted a breach of cl 3.5.3 of the Conduct Code,[122] these findings were not included in the formal finding of professional misconduct in the section headed 'Orders'.
As discussed in more detail later, when the primary decision is read as a whole, it appears that the Tribunal found that:
1. Dr Panegyres had engaged in professional misconduct in that:

[251]

The Tribunal correctly observed that Allegation Three was tantamount to an allegation of dishonesty or fraud and was a very serious allegation.[123]
In contending for factual findings in support of Allegation Three the Board had relied on the rule in Jones v Dunkel.[124] Noting that it was not bound by the rules of evidence, the Tribunal determined that it should take into consideration and apply the principles in Jones v Dunkel to the extent those principles were relevant.[125] The Tribunal determined, however, that there was no Jones v Dunkel inference to be drawn from the fact that Dr Panegyres did not call any nursing staff or other witnesses to corroborate his evidence as to when and how often he saw KW.[126]
The Tribunal gave two reasons for this conclusion. First, it was unlikely that the potential witnesses would have had a recollection of the events.[127] Second, it was open to the Board to call the potential witnesses.[128]
It followed that the Board's case in relation to Allegation Three relied on the lack of medical records and clinical notes of the services which Dr Panegyres said he provided to KW. Dr Panegyres gave oral evidence as to his practice and what had occurred in relation to KW. An explanation was provided for the absence of clinical notes. The Tribunal did not consider it necessary or appropriate to make a finding on the truthfulness of Dr Panegyres' testimony.[129] The Tribunal said, however, that Dr Panegyres had provided an explanation for the failure to provide clinical notes corresponding to the various consultations 'which the Tribunal considers to be plausible'.[130]
The Tribunal stated, uncontroversially, that it was for the Board to prove to the requisite standard that the consultations did not take place.[131]
The Tribunal concluded that the Board had not discharged its onus of proof in this respect. The absence of notes alone did not satisfy the Tribunal to the requisite standard. The Tribunal was not prepared to make a finding that the consultations as described by Dr Panegyres occurred. However, the Tribunal was not persuaded to the requisite standard that the consultations did not occur.[132]

[253]

The Tribunal assumed, favourably to Dr Panegyres given that it had not made a positive finding accepting his evidence, that Dr Panegyres saw KW six times a week and, on each occasion, conducted a full neurological assessment including a review of medications, blood pressure, temperature and behaviour.[133] (Based on the handwritten billing sheet Dr Panegyres charged for 64 physical attendances over the 74 days Dr Panegyres was not on leave.) The Tribunal concluded, based on the expert evidence and evidence that a registrar saw KW on most weekdays and occasionally on a Saturday, that it was not necessary or clinically indicated for Dr Panegyres to see KW for a full neurological review more than three times per week[134] (although earlier reference had been made to the three experts agreeing that during the first two weeks of admission five to seven times a week was appropriate).[135]
In oral submissions before this court, senior counsel for Dr Panegyres - in explaining the Tribunal's findings - accepted that after the initial two weeks Dr Panegyres' consultations were double that which was clinically indicated or reasonably required for KW's well‑being.[136]
Based on its finding that it was not necessary or clinically indicated for Dr Panegyres to see KW for a full neurological review any more than three times per week, the Tribunal found that the frequency of Dr Panegyres' attendances on KW was not clinically indicated or reasonably required for KW's welfare.[137]
Senior counsel for Dr Panegyres sought to emphasise that there was no finding of deliberate over servicing with a view to increasing or inflating the amount the practitioner might charge. The Tribunal's finding that there was excessive servicing was an objective finding. That submission on behalf of Dr Panegyres must be accepted. There was no allegation - and therefore could be no finding - that Dr Panegyres' motivation in providing the excessive services was to secure a financial benefit for himself. Indeed, before this court it was accepted on behalf of the Board that there was no finding of conscious wrongdoing[138] or bad faith.[139]
It was, however, accepted on his behalf that Dr Panegyres provided the relevant services to KW in contemplation that, in due course, a fee for the services would be raised.[140] That Dr Panegyres was intending to charge for the services is plain from the handwritten billing sheets. Dr Panegyres noted the amount he intended to charge for the service as rendered.
There was no adverse finding against Dr Panegyres based on the rates that he charged. The Tribunal was not satisfied that a standard existed as to the appropriate rates.[141] Further, had the consultations all been clinically indicated and necessary, the Tribunal did not consider the quantum of the Invoice to be excessive.[142]
However, Allegation Four was made out to the extent to which Dr Panegyres charged for consultations not required.[143] The charges raised for those services - not being reasonably required for KW's well‑being - were therefore excessive.[144]

[260]

The Conduct Code has an extended definition of the term 'patient' to encompass substitute decision makers. Clause 1.6 provided that the term 'patient' also includes substitute decision makers for patients who do not have the capacity to make their own decisions. For the purposes of the Conduct Code the Public Advocate (KW's guardian) was a substitute decision maker for KW in relation to treatment decisions. The Public Trustee (KW's administrator) was a substitute decision maker for KW in relation to financial matters.
The Tribunal concluded that Dr Panegyres had breached cl 3.2.6 of the Conduct Code. The Tribunal referred to its conclusion on Allegation One (excessive provision of services). It was said that to charge for all attendances, in circumstances where Dr Panegyres knew of KW's lack of competence and that KW had been declared unfit to make personal or financial decisions, was to exploit KW financially.[155]
The finding of breach of cl 3.2.6 of the Conduct Code is challenged by Ground 1 of Dr Panegyres' appeal.
The Tribunal also found there had been breaches of cl 3.3.3 and cl 3.5.3 of the Conduct Code. As to cl 3.3.3 (information as to treatment), the Tribunal considered that Dr Panegyres should have, but did not, consult with and consider the views of the Public Advocate about KW's on-going treatment needs.[156] (As noted earlier, in the Tribunal's eventual formal finding of professional misconduct it erroneously referred to, in effect, the Public Trustee when it evidently intended to refer to the Public Advocate.)[157] As to cl 3.5.3 (information as to fees), in keeping with the findings as to Allegation Five (failure to obtain the Public Trustee's consent), the Tribunal considered that it was a failure on the part of the practitioner not to obtain the Public Trustee's consent to the fee arrangement once the Public Trustee had been appointed.[158] As previously noted, however, this did not form part of the formal finding of professional misconduct under the section headed 'Orders'.
The Tribunal later returned to the question of breach of the Conduct Code when assessing whether Dr Panegyres' conduct as found constituted professional misconduct.
The Tribunal, in a paragraph purporting to summarise its findings as to the breaches of the Conduct Code, repeated its findings that Dr Panegyres was in breach of cl 3.2.6, cl 3.3.3 and cl 3.5.3.[159] However, beyond merely repeating its earlier findings, the Tribunal in its formal Orders and summary added further breaches of the Conduct Code as to:
1. a failure to keep adequate records, albeit without identifying any relevant provision of the Conduct Code; and
2. clause 5.2 insofar as that provision was said to require a doctor to use health care resources (in this case the resources of Medicare Australia) wisely and ensure that services provided are necessary and likely to benefit a patient.[160]
As has been seen ([166] above), the two additional breaches of the Conduct Code referred to in [195] above - not raised by the Board's amended application - were included in the Tribunal's formal finding of pro[161]sional misconduct.161

[287]

As a result of the restatement to the Board's case at the oral hearing, the proposed cross-appeal sought to agitate a single issue: the Board contended that the Tribunal had misapplied the correct standard of proof in deciding the allegation that Dr Panegyres charged KW for services that he did not provide to KW. The Board contended that:
1. The Tribunal's failure in the circumstances of this case left the Board wondering how - in the face of a bare denial by a practitioner to a complaint that he or she had not provided the services charged for - the Board could ever prove such a complaint to the satisfaction of the Tribunal.[208]
2. The onus had been set too high for the Board to establish, with any amount of proof absent an admission from the practitioner, that Dr Panegyres charged for services that he did not provide.[209] (At one stage counsel for the Board suggested that the question was whether the Tribunal had set the bar so high as to be insurmountable in cases alleging dishonesty.)[210]
3. Had the Tribunal applied the correct standard the Board would not have been left wondering what it would have to prove to establish this type of complaint.[211]
After directing the court's attention to the course of the evidence before the Tribunal, counsel for the Board asked, rhetorically, what else could the Board do to discharge its onus of proof?[212] In that respect the essence of the submission was that the facts as they should have been found demonstrated that the Tribunal applied the incorrect standard to the finding contended for by the Board.[213] The tenor of the submission thus reproduced what was contended for in the Board's written submissions: that, on the evidence, it was manifestly unreasonable for the Tribunal to find that the Board did not prove its case to the requisite standard as on the balance of probabilities the consultations charged for by Dr Panegyres did not take place.[214]
So understood care must be taken to ensure that the Board's proposed cross-appeal is not allowed to become an impermissible back-door means to challenge the Tribunal's decision in this court based on an alleged error of fact. That will be returned to in due course. Consideration of the Board's cross-appeal should, however, first address the Tribunal's treatment of onus and consideration of whether the Board had discharged its onus.

[289]

The Tribunal identified that the Board bore the onus of proof. Moreover, by reference to one of its earlier decisions in a vocational disciplinary context the Tribunal referred to the onus as being to the civil standard - proof on the balance of probabilities - rather than the criminal standard. The previous authority, as incorporated in the Tribunal's reasons, made reference to the principles in Briginshaw.[215] The Tribunal then made further reference to Briginshaw and also made reference to Rejfek v McElroy,[216] expressly quoting the need not to confuse the standard of proof and relationship between the degree of persuasion according to the balance of probabilities and the gravity or otherwise of the fact in dispute. Finally, by reference to a Victorian decision which echoed the words in Briginshaw, the Tribunal reminded itself that mere mechanical comparison of probabilities independent of reasonable satisfaction will not justify a finding of fact. The Tribunal identified that it must feel an 'actual persuasion' of the occurrence or existence of a fact before it could be found.[217]
If proven, Allegation Three (charging for services not provided) involved 'grave moral delinquency'[218] on the part of Dr Panegyres. The Tribunal was correct to refer to and apply the principles in Briginshaw. More generally there is no doubt that the Tribunal correctly identified the standard of proof that it was to apply in determining Allegation Three. Indeed, the Board did not contend to the contrary. The Board's contention was one of misapplication.
A fair reading of the Tribunal's reasons does not disclose any express misapplication of the correct standard of proof. Nowhere in the Board's submissions, both written and oral, was it suggested that there had been any express error signifying that the Tribunal had not applied the correct standard of proof. Examination of the way in which the Tribunal dealt with the two strands of the Board's argument does not suggest any express misapplication.
The Tribunal's rejection of the Board's Jones v Dunkel point (refer to [171] ‑ [172] above) could not of itself involve any misapplication of the civil standard of proof. At the most, had the submission been accepted, the Tribunal might have inferred that the evidence of nursing and other JHC staff would not have assisted Dr Panegyres' case. Alternatively, the Tribunal might have drawn an available inference unfavourable to Dr Panegyres wi[219]greater confidence.219 However, application of the rule in Jones v Dunkel does not permit an adverse inference that the uncalled evidence would have been positively [220]aging to the party.220 The absence of a witness cannot be used to make up any d[221]ciency of evidence.221
The Board's written submissions on the cross-appeal complained of the Tribunal's refusal to draw a Jones v Dunkel inference.[222] Those submissions apparently responded to the more expansive way in which the Board sought to propound a cross-appeal pre-hearing in its written appellant's case on the cross-appeal (see [218(2)] above). It is difficult to understand the continuing relevance of those submissions to the Board's re-stated case as advanced at the hearing before this court. The ultimate conclusion of the submission was that Dr Panegyres' failure to elicit evidence led to an inference that Dr Panegyres' explanation for the non-existence of supporting clinical and other medical records was a fabrication and the uncalled evidence would not have assiste[223]is case.223 The former suggested inference goes well beyond that which may be drawn in accordance with Jones v Dunkel. The refusal to draw the latter suggested inference does not demonstrate any misapplication by the Tribunal in relation to the standard of proof.
While having seemingly abandoned that part of the Board's written case (see [222] above), counsel for the Board also orally submitted that, as a matter of law, the Tribunal did not give correct treatment to the Jones v Dunkel[224]ference.224 If this was meant to maintain the contentions made in the written submissions on the cross-appeal there are two answers. First, whether the Tribunal should have drawn a Jones v Dunkel inference - and, if so, what inference - is not within the question of law adopted by counsel for the Board at the hearing before this court. Second, the Tribunal's reasons for not drawing a Jones v Dunkel inference do not demonstrate error as a matter of law.
As to the last point, it suffices to refer to the Tribunal's second reason for refusing to draw a Jones v Dunkel inference (see [172] above). The Tribunal held that it was open to the Board to call the possible[225]tnesses.225 That is an intermediate factual finding which was not sought to be (and probably could not be) challenged in a ground of cross-appeal before this court. The rule in Jones v Dunkel does not apply, generally speaking, where a witness is equally available to bo[226]parties.226 There was nothing in the present case to take it outside of the general rule. In any case Dr Panegyres' evidence was that, on some attendances on KW, no-one else w[227]present.227 The Board did not explain what missing witness could have been expected to be called by Dr Panegyres as to those attendances and how the evidence of that witness would have elucidated the issue in dispute.
The Tribunal's reasons for rejecting the Board's case on Allegation Three so far as it relied on the absence of supporting clinical and other medical records have already been described (see [173] ‑ [175] above). In short:
1. Dr Panegyres' evidence was that whenever he sees a patient he conducts a neurological assessment. With KW, because of the complexity of his condition, a full neurological assessment was required.[228]
2. Some of the attendances on KW did not have corresponding clinical notes. That was so despite evidence to the effect that JHC had a protocol for the maintenance of clinical documentation.[229]
3. The Tribunal found, in effect, that the medical records (including the notes made by the registrar and the resident) did not contain a record of many of the consultations the subject of Dr Panegyres' charges to KW.[230] The Tribunal accepted that if the notes kept by the registrar and the resident did not record Dr Panegyres as being in attendance, he was not there.[231]
4. The Tribunal also found, in effect, that Dr Panegyres did not himself have clinical notes for many of the consultations for which he charged KW.[232]
5. Dr Panegyres explained the absence of clinical and other medical records on the basis that he sometimes conducted ward rounds alone. When that happened, usually in the evenings, the attendances were undocumented. There was no evidence of the nature and outcome of those consultations beyond Dr Panegyres' testimony.[233] (The Tribunal had earlier described, at some length, the substance of Dr Panegyres' evidence as to the consultations charged for and why - on the practitioner's account - he had no doubt that consultations had taken place with KW despite the absence of supporting clinical and other medical records.[234] The effect of Dr Panegyres' evidence was that there were consultations, particularly at night, where he would see KW in the absence of junior medical staff or nurses, and in respect of which there would be a 'verbal handover' the next morning.[235])
6. The Tribunal did not consider it necessary or appropriate to make a finding on the truthfulness of Dr Panegyres' testimony.[236]
7. The Tribunal considered Dr Panegyres' explanation for the failure to provide clinical and other medical records of the undocumented attendances on KW to be plausible (although the failure did not assist Dr Panegyres in his defence of Allegation Three).[237]
8. Reference was made to the observation of Miller J in Hewett v Medical Board of Western Australia that there may be danger in disciplinary proceedings in following the path of determining who is telling the truth and who is lying.
The Tribunal's reasons evince a striking reluctance to grasp the nettle. The Tribunal's approach appears to be informed by the observations of Miller J as to the danger in a trier of fact distracting itself from the ultimate question (ie whether the pleaded allegations are made out on the balance of probabilities) by engaging in a binary exercise of determining which of two people were telling the truth. Miller J's observations in Hewett v Medical Board of Westerm Australia arose in a quite different context. There a medical practitioner was accused, among other things, of engaging in a sexual relationship and other untoward behaviour with a patient. In closing counsel assisting invited the board to embark on an inquiry into which of the two parties was truthful and which was a liar. The board characterised the question for it as being 'who is lying', concluding that the compainant was truthful and the medical practitioner was a liar.
Miller J considered that in focussing on the question of 'who is telling lies' the board had misapprehended and oversimplified its task.[242] Having made the observations referred to by the Tribunal in the present case, and reproducing the extract from Dixon J's reasons in Briginshaw, Miller J went on to state:

[291]

Accordingly, the issue that concerned Miller J was the possible substitution and replacement of the true criterion for determination. The gravamen of Miller J's observation is that a tribunal of fact should not obscure the true issue for determination by substituting a secondary criterion. His Honour was not saying that that it was not necessary or appropriate to make a finding on the truthfulness of a witness' testimony. To the contrary, in vocational disciplinary matters - assuming it is possible to do so - it will often be necessary, and therefore appropriate, to make a finding on whether a complainant's testimony is truthful as a step along the way of determining whether the regulatory body has discharged its onus of proof.
Prima facie that was the position in the referral before the Tribunal. Dr Panegyres' oral evidence was a key element of the forensic contest on the question of whether he had provided the services for which he was charging KW. Dr Panegyres' explanation of why he did not keep clinical notes of the full neurological assessments (which he said he undertook) could not be put to one side without undertaking an assessment of the credibility and reliability of his evidence on this topic as a whole. The veracity of Dr Panegyres' testimony necessarily bore on whether his explanation for having no clinical notes was 'plausible'. It was both necessary (assuming that the Tribunal was able to do so on the evidence as a whole) and appropriate for the Tribunal to consider the truthfulness or otherwise of Dr Panegyres' testimony, even though, having done so, it would then be open to the Tribunal, at least theoretically, to accept parts of Dr Panegyres' evidence and reject others.
Nevertheless, returning to the question of law that the Board sought to agitate in its proposed cross-appeal, in the present case the Tribunal's reference to Hewett v Medical Board of Western Australia supports a conclusion that the Tribunal applied the correct civil standard of proof.
The Tribunal reproduces Miller J's statement as to the ultimate question and the often cited passage from Dixon J's reasons in Briginshaw dealing with reasonable satisfaction and the standard of persuasion required in civil proceedings. That passage expressly eschews the possibility of some third intermediate standard between that of reasonable doubt (as required in a criminal context) and reasonable satisfaction.[244] The suggestion that the Tribunal misapplied the correct standard of proof must then contend with the language used by the Tribunal. The Tribunal refers three times to the 'requisite standard'.[245] In context that can only be the civil standard of balance of probabilities, applying Briginshaw, as referred to at the commencement of the Tribunal's reasons and then reiterated immediately before the Tribunal's conclusion on Allegation Three.[246] The Tribunal refers, correctly, to it being for the Board to prove that the consulations did not take place[247] and that the Tribunal must feel 'an actual persuasion' that the allegation is made out.[248] The Tribunal also states that it is not persuaded that the consultations did not occur,[249] meaning that the Board did not discharge its onus,[250] and the particulars of Allegation Three are not made out.[251]
The reasons thus show that the Tribunal identified and then applied the civil standard of proof as explained in Briginshaw. The Tribunal's reasons do not disclose any express misapplication of the correct standard of proof in determining Allegation Three.

[293]

In the absence of any apparent express error in applying the civil standard of proof, the Board's approach before this court amounted to an invitation to infer misapplication by contrasting the outcome as determined by the Tribunal with the evidence. The burden of the Board's submission was that (1) Dr Panegyres' explanation for the absence of clinical or other records of the consultations was implausible; and (2) had the Tribunal applied the civil standard correctly it would have found that the consultations charged for did not take place.
In oral submissions counsel for the Board put the contention in terms that the facts demonstrated that the incorrect standard was applied to the allegation.[252] Insofar as this starts with a premise that Allegation Three was demonstrated on the facts it is instructive to appreciate how the Board sought to demonstrate those facts.
The issue before the Tribunal was whether Dr Panegyres had provided all the services to KW that he had charged for. The Board's contention (initially before the Tribunal and then repeated before this court in the proposed cross-appeal) was that no services were provided where there was no evidence of clinical notes or other medical records to substantiate Dr Panegyres' attendances.[253] In submissions before this court the Board described Dr Panegyres' explanation for the absence of supporting clinical and other medical records as implausible[254] and went so far as to contend that certain evidence was concocted.[255] The Board sought to develop that there were 'inconsistencies and contradictions' in Dr Panegyres' evidence[256] and that Dr Panegyres' evidence had 'evolved' in the course of investigation and the hearing.[257] Dr Panegyres' explanation for the absence of supporting clinical and other medical records was said to be 'unconvincing'.[258] The Board argued that there was an available inference that Dr Panegyres' explanation for the non-existence of supporting clinical and other medical records was a fabrication.[259]
The Board asserted that it had adduced evidence which, standing by itself, raised a 'higher degree of probability' that Dr Panegyres charged for services that he did not provide.[260] The Tribunal's finding to the contrary that the Board had not discharged its onus of proof was said to be manifestly unreasonable.[261] Key to that was the Board's insistence that Dr Panegyres had not provided a plausible explanation for the lack of supporting clinical and other medical records to verify his attendances on KW.[262]
It is well-established that there is no error in law in simply making a wrong finding of fact.[263]
Whether the evidence was sufficient to establish the fact in issue (ie whether Dr Panegyres provided the services to KW) was not a question of law; it was a question of fact. As was explained by Dixon J in Clark v Flanagan on an appeal concerning a workers compensation case where the court was limited to questions of law:

[295]

The context in which that statement was made is important. It was necessary to find that the worker had been injured in the course of his employment. Dixon J accepted that the material before the commission strongly supported that factual conclusion. The worker had contended, however, that the commission was bound in point of law to find that he was working at the time of injury. Among other things it was contended that the evidence was sufficient to justify a finding in favour of the worker and that - in circumstances where the commission held on the evidence that it was unable to say whether the worker injured himself intentionally or not - the commission should have made a definite finding to that effect.[265]
Those arguments were rejected. The passage quoted at [252] above demonstrates that the sufficiency of the evidence to prove a disputed issue of fact on the balance of probabilities is a question of fact rather than a question of law. (By contrast, whether a finding of fact was not open on the evidence in the sense that there was no evidence to support the finding is a questi[266]of law.)266
This court, as in Clark v Flanagan, may only consider an appeal from a decision of the Tribunal on a question of law. The legislature has entrusted to the Tribunal - and to the Tribunal alone - all questions of fact. This court must be astute not to trespass beyond the function conferred upon it by treating as a question of law that which is really a question of fact falling within the exclusive province of the Tribunal. A litigant who is disgruntled with the Tribunal's factual findings cannot be permitted to look for redress in this court by masquerading its challenge as being on a question of law where in reality the issue concerns a question of fact.
The question of whether the evidence below was conclusive to establish a primary fact in issue is not a question of law but a question of fact. The distinction between a complaint of no evidence (a question of law) and one of the alleged conclusiveness of the evidence (a question of fact) was examined in Azzopardi v Tasman UEB Industries Ltd.[267] There, again in a workers compensation case, a worker sought to challenge a conclusion that he failed to injure his knee in returning home from work. The worker contended on appeal that on the evidence it was not open to the trial judge to find that the worker had not suffered the relevant injury. Glass JA (with Samuels JA agreeing) stated:

[299]

The question whether evidence ought to be accepted as sufficient to establish a primary fact is a question of fact. There is no rule of law that a tribunal with exclusive jurisdiction to determine the facts - such as the Tribunal[271] - must accept the evidence even if it is all one way. The tribunal as trier of fact may accept all or some or none of the evidence.[272]
The difficulty with the Board's proposed cross-appeal is that it seeks to infer an error of law on the part of the Tribunal - misapplication of the correct standard of proof - by asserting that the Tribunal was wrong on a question of fact. It presupposes and invites this court to find that the Board did establish on the balance of probabilities that consultations of KW charged for by Dr Panegyres did not take place. It requires this court to intrude in an impermissible way on a factual finding that was a matter for the Tribunal and in respect of which no appeal lies other than on a question of law.
Whether the Tribunal applied the correct standard of proof is a question of law.[273] But, even though so framed, what the Board actually seeks to do in its proposed cross-appeal is to challenge the Tribunal's decision by alleging factual error. It does not matter whether the error so alleged is that the failure to find that the consultations did not take place was against the evidence, against the weight of the evidence or should not have been made on the evidence. The starting point for the Board's assertion of misapplication is the contention that the Tribunal was in error in finding that Dr Panegyres' explanation was plausible and in not finding that the consultations did not take place. It is not possible, through the guise of asserting a misapplication of the civil standard of proof, to convert an appeal on a question of fact to an appeal on a question of law any more than it is convert a question of fact into a question of law by inverting the onus of proof.[274] Otherwise every factual finding in a case of this type could conceivably be challenged by the device of alleging misapplication of the standard of proof. Section 105(2) of the State Administrative Tribunal Act is not to be sidestepped by this means. In substance, if not in form, the Board's proposed cross-appeal was on a question of fact so far as it sought to infer misapplication of the standard of proof by contrasting the factual finding as determined by the Tribunal with the evidence.
In any case, as senior counsel for Dr Panegyres correctly submitted, it does not follow that just because the Tribunal arrived at the wrong finding of fact the Tribunal necessarily applied the wrong standard of proof. The Tribunal may simply have been wrong and made a wrong finding of fact. That alone does not amount to an error of law.
The Board's cross-appeal cannot be entertained insofar as it seeks to infer misapplication of the civil standard of proof by the Tribunal. To do so would be to permit by the back-door something that is not permitted by the front. The proposed cross-appeal, while in form seeking to challenge whether the Tribunal misapplied the standard of proof, is in substance a disguised attempt to challenge the Tribunal's decision on a question of fact: whether, on the evidence, the Tribunal should have found that (1) Dr Panegyres' explanation for the absence of clinical and other medical records was implausible; and (2) the consultations charged for did not take place. No such appeal is permitted from a decision of the Tribunal.
In submissions, both written and oral, Dr Panegyres sought to answer the Board's evidentiary case. It is not necessary to develop what was said on Dr Panegyres' behalf in answer to the Board's contention that the evidence established that Dr Panegyres charged for services he did not provide. The issue - not being a ground on a question of law - cannot be raised before this court and ought not be the subject of further consideration.

[302]

The Tribunal's reasons are correct in terms of their identification of the civil standard of proof. The Board's assertion of misapplication, in the way in which it was put, was an argument that impermissibly invited this court to intervene on a question of fact. However, there are other aspects of the Tribunal's reasons for dismissing Allegation Three that are problematic and should not pass without comment.
Mention has already been made of the Tribunal's statement, at [323] of the primary decision, that it was not necessary or appropriate to make a finding on the truthfulness or otherwise of Dr Panegyres' testimony (see [239.6] and [240] - [243] above). For the reasons previously stated it is apparent that in so observing the Tribunal misunderstood the import of Hewett v Medical Board of Western Australia. The Tribunal then went on in the same paragraph of its reasons to conclude that Dr Panegyres provided an explanation for the failure to provide clinical or other records of the consultations 'which the Tribunal considers to be plausible'. There is tension between those two statements. The Tribunal says it is not necessary to make a finding as to whether it should accept Dr Panegyres' evidence. Yet, in the same paragraph, the Tribunal concludes that Dr Panegyres' explanation is plausible.
The Tribunal, at [326] of the primary decision, then progressed from saying that it was not necessary or appropriate to make a finding on the truthfulness of Dr Panegyres' testimony, to concluding (in somewhat conclusory terms)[275] that it was not persuaded that the consultations did not occur (the allegation the Board had to prove) while making no positive finding that the consultations did occur (that being the thrust of Dr Panegyres' evidence).
Whether the Tribunal was able to reach a positive finding on the disputed question of fact one way or the other was a matter for the Tribunal after taking into consideration all the relevant evidence. A trier of fact, having considered the evidence as a whole, may conclude that it is unable to make a finding one way or the other and determine that the party on whom the burden of proof lies in relation to the allegation has failed to discharge that burden.[276] In the present case, however, there was limited scope to determine the issue of whether Dr Panegyres had not provided the services merely by reference to the sufficiency of the evidence to discharge the onus of proof. Logically there were only two factual possibilities: Dr Panegyres had either provided the services or he had not. Also, all the probative evidence on the topic was before the Tribunal. While, in some cases, it is not possible to make a finding on a contested fact one way or the other, a trier of fact should only come to that conclusion having undertaken an assessment of all the relevant evidence. Here the relevant evidence included Dr Panegyres' oral testimony.[277] The question was not simply whether the absence of supporting clinical notes was sufficient to satisfy the Tribunal that the services had not been provided.[278]
A failure to make all necessary findings of fact having regard to the available evidence - where constituting a failure to address and determine the material issues raised by the case - may amount to a constructive failure by the Tribunal to exercise jurisdiction.[279]
There is, however, a difference between a question of law (and concomitant asserted error) as to:
1. whether the Tribunal failed to determine the issues between the parties by failing to make all necessary findings based on the evidence as a whole (perhaps expressed more generally as whether there was an error in the Tribunal's approach to fact finding by failing to have regard to the evidence as a whole); and
2. whether the Tribunal applied the correct standard of proof.
The former goes to the Tribunal's process of fact finding (an anterior point) rather than the Tribunal's application of the civil standard of proof (the eventual conclusion as to whether the Board had proven its case).
At the oral hearing before this court the Board adopted the latter as the relevant question of law for the purpose of its proposed cross-appeal (see [220] to [222] above). The Board expressly clarified that it was not contending that the Tribunal had failed to resolve the Board's allegation by failing to make all necessary factual findings based on the evidence as a whole (see [223] above). The Board presented a case on appeal confined to the question of whether the Tribunal applied the correct standard of proof. The Board's argument proceeded in accordance with that framework (see [217] - [218], [221] - [222], [229] - [230] and [247] - [250] above). Importantly, Dr Panegyres answered the proposed cross-appeal as it was advanced by the Board - addressing the question of whether the Tribunal had misapplied the applicable civil standard of proof - rather than a case of alleged error based on the Tribunal's approach to fact finding and consequential failure to determine the material issues raised by the Board's case on Allegation Three.
The identification, by grounds of appeal, of alleged error is a matter that is fundamental to the jurisdiction of a court of appeal.[280] This court does not correct error at large; it is confined to dealing with the single question of law (and its concomitant ground of cross‑appeal) as identified by the Board. Accordingly, any arguable shortcoming evinced by the Tribunal's approach to fact finding must be put to one side. It is outside the purview of the single question of law sought to be agitated by the Board. A possible failure in the Tribunal's approach to fact finding does not equate to misapplication of the civil standard of proof.
Nevertheless, for the reasons previously explained, the result on the Board's proposed cross-appeal should not be seen as an endorsement of the Tribunal's approach to determining Allegation Three.

[304]

Dr Panegyres' proposed appeal was directed to the Tribunal's finding of professional misconduct. Ground 1 challenged the finding of breach of cl 3.2.6 of the Conduct Code[281] (later described by the Tribunal as the 'most serious' finding).[282] The Tribunal put this in terms of 'exploiting KW financially'[283] and being in breach of cl 3.2.6 'which requires that a doctor does not exploit a patient financially'.[284] Grounds 2 and 3 were concerned with the Tribunal's characterisation of Dr Panegyres' behaviour as professional misconduct.[285]
The formal finding of professional misconduct to which the Grounds are directed are those at par 1(a) of the Tribunal's orders, namely, that Dr Panegyres was guilty of professional misconduct in that, contrary to the provisions of the Conduct Code, between 27 November 2012 and 21 February 2013 Dr Panegyres provided and charged for medical services to KW which were not clinically indicated and were not all reasonably required for KW's well‑being. That finding does not expressly refer to cl 3.2.6 of the Conduct Code. Nor does it mention the concept of financial exploitation which the Tribunal found to have been made out insofar as Dr Panegyres was found to have breached the relevant part of the Conduct Code.[286] Yet, in the chapeau to the orders, the finding is plainly said to be based on a contravention of the Conduct Code. And on a fair reading of the Tribunal's reasons it adopted the Conduct Code as the relevant standard by which to assess whether Dr Panegyres' behaviour constituted professional misconduct.[287]
Within the body of the Tribunal's reasons on its primary decision there was no finding of breach of the Conduct Code in the express terms found in par 1(a) of the formal finding of professional misconduct. Of the three findings in terms of Allegation Six (dealing with breach of the Conduct Code) it is only the financial exploitation finding that could underpin par 1(a). That was apparently the way in which counsel for the parties understood the formal finding of professional misconduct in par 1(a) of the Tribunal's orders.[288]

[308]

Before this court, senior counsel for Dr Panegyres submitted that the act of charging was the gravamen of the formal finding at par 1(a).[290] That submission must be accepted insofar as the breach that the Tribunal found of cl 3.2.6 of the Conduct Code underpins the formal finding in par 1(a) of the Tribunal's orders. The passage at [349] of the Tribunal's reasons as reproduced in the preceding paragraph commences '[t]o charge for all of those attendances ...'. And par 1(a) itself expresses the professional misconduct in terms of Dr Panegyres having provided and charged for the services.
Counsel for the Board contended that there was exploitation in a wider sense than mere charging.[291] Counsel pointed to the excessive provision of services, KW's disability (put in terms that he was a 'defenceless patient')[292] and Dr Panegyres' application of his automatic billing process (as to which see [125] ‑ [128] above) all of which, taken together, was said to show no concern for the w[293]are of the patient.293 That, however, was not the way in which the Tribunal found that there was exploitation. The finding of exploitation (and the concomitant formal finding of professional misconduct) is firmly grounded in the act of charging for the excessive services in circumstances where Dr Panegyres knew of KW's lack of competence and vulnerability.
Having identified the basis for the Tribunal's finding of financial exploitation in breach of cl 3.2.6 of the Conduct Code, Dr Panegyres' submissions in support of Ground 1 focussed on two things:
1. Dr Panegyres did not charge KW until the Invoice was sent (on 3 March 2013).
2. The Invoice, although addressed to KW, was addressed to KW care of the Public Trustee and was sent to the Public Trustee.
In these circumstances Dr Panegyres contended that it was not reasonably open for the Tribunal to find that he had financially exploited KW. Senior counsel for Dr Panegyres said that there was no power imbalance between Dr Panegyres and the Public Trustee. The submission as it was developed for Dr Panegyres was that to exploit a patient for the purpose of cl 3.2.6 of the Conduct Code - whether physically, emotionally, sexually or financially - required the medical practitioner to take advantage of the patient. The medical practitioner had to make use of the power imbalance in the doctor-patient relationship in a way that involved some sort of moral reprehensibility[294] (perhaps better expressed as making use of the situation in a way considered unfair or underhand).
Counsel for the Board accepted that exploitation in the positive sense of a 'guilty mind' did not occur (observing that the exploitation case was not run before the Tribunal in that sense).[295] It was accepted that Ground 1 was made out if cl 3.2.6 of the Conduct Code required a positive intention to exploit the patient.[296] Counsel for the Board submitted, however, that an actual intention to exploit did not need to be formed to establish exploitation for the purpose of cl 3.2.6 of the Conduct Code.[297]
Exploitation for the purpose of cl 3.2.6 is not dependant on the practitioner's subjective intentions or motives. Clause 3.2.6's requirement of non-exploitation is a consequence of the Conduct Code's prior recognition that there is a power imbalance in the doctor-patient relationship and a good doctor-patient relationship requires high standards of professional conduct. The key question is whether there has been exploitation of the patient (the power imbalance being a given). However, the word 'exploiting' in that paragraph of the Conduct Code still requires more than mere action. What amounts to exploitation is informed by the recognition that there is a power imbalance; and also that a good doctor-patient relationship requires high standards of professional conduct. When used as a verb in the way in which it appears in cl 3.2.6 of the Conduct Code the word 'exploiting' is used in a negative manner to describe a doctor taking unfair or unethical advantage of his or her patient.[298]
The Tribunal found exploitation in the mere fact of Dr Panegyres charging for excessive consultations knowing of KW's vulnerability.
That might well have been the position had Dr Panegyres invoiced KW before the appointment of the Public Trustee. On Dr Panegyres' own assessment KW was incapable of dealing with his health care and financial affairs. KW was not in a position to assess whether any invoice rendered by Dr Panegyres was reasonable. But Dr Panegyres did not render an invoice to KW pending the appointment of the Public Trustee. No invoice was rendered until after the appointment; and - while addressed to KW - the Invoice was sent to the Public Trustee so that it could be dealt with by KW's appointed plenary administrator on KW's behalf. The Public Trustee is the holder of an independent statutory office with acknowledged expertise in managing the financial affairs of incapable persons.
The Tribunal did not grapple with how Dr Panegyres could be said to have exploited KW in charging for the excessive services in circumstances where the Invoice was sent to the Public Trustee. The Tribunal had little assistance in this regard. The pleaded allegation went no higher than to say that Dr Panegyres failed to recognise the power imbalance in the doctor-patient relationship and not exploit KW financially.[299] The concept of exploitation itself received next to no consideration in the parties' closing submissions before the Tribunal.[300] As to the Board's reliance on the Conduct Code more generally, the references made to the Code by counsel for the Board were little more than fleeting and largely in terms that the alleged breaches of the Conduct Code were an umbrella allegation: it was suggested that if the other allegations were made out then there would be a breach of the Code.[301]
In the present case, viewed objectively, Dr Panegyres' action in rendering the Invoice (in an amount of $25,265.10) to KW through the Public Trustee for payment in relation to the services provided to KW constituted a breach of cl 3.2.6 of the Conduct Code. In all the circumstances in rendering the Invoice in that amount Dr Panegyres took unfair advantage of KW, thereby exploiting his patient financially, because:
1. Dr Panegyres, while acting without conscious impropriety, nevertheless sought by the Invoice to charge for services that were not clinically indicated and were not reasonably required for KW's well‑being. (As will be seen, at [397] below, there was an excessive charge of around $9,100.)
2. Payment on account of the Invoice would inevitably deplete KW's available resources as KW's assets would be used to pay the Invoice.
3. KW, given his incapacity, was in no position to appreciate that he was receiving - and was to be charged for - services that were not clinically indicated and were not reasonably required for KW's well‑being.
4. Dr Panegyres was aware of KW's condition and vulnerability: in Dr Panegyres' opinion KW was incapable of making reasonable decisions in relation to his personal healthcare, living situation and financial affairs.
5. Following 22 January 2013 Dr Panegyres did not consult with and consider the views of the Public Advocate about KW's on-going treatment needs. Nor did Dr Panegyres obtain the Public Trustee's consent to a fee arrangement consisting of Dr Panegyres' standard rate of fees. Having regard to the unchallenged findings made by the Tribunal on Allegations 6(b) and 6(c) Dr Panegyres should have done so. There was no informed consent as to the nature and frequency of Dr Panegyres' consultations. Dr Panegyres must have known - or at the least ought to have known - that this was the case.
6. The Public Trustee had no independent knowledge as to the services being provided by Dr Panegyres and whether those services, as sought to be charged for by the Invoice, were clinically indicated and reasonably required for KW's well‑being.
7. Nor could the Public Trustee consult with KW about the nature and frequency of the services being provided to him by Mr Panegyres.
8. The matters in [290.5] to [290.7] above had the consequence, practically speaking, that the Public Trustee was not in a position to form a view as to whether the services being charged for were clinically indicated and reasonably required for KW's well‑being. Thus the insistence, on appeal, by senior counsel for Dr Panegyres that there was no relevant power imbalance between Dr Panegyres and the Public Trustee ignored the practical realities of the situation confronted by the Public Trustee and the informational asymmetry to which it was subject as a result of Dr Panegyres' omissions.
On the last point, for the reasons already given, the true issue in any case is whether the medical practitioner is guilty of exploiting the patient financially. The primary consideration is whether there has been exploitation, in the sense of the doctor taking unfair or unethical advantage, rather than a power imbalance. Moreover, while, as occurred here, the Public Trustee might seek an investigation into the matter by the Board, the possibility of an investigation of that kind involves a recognition of the power imbalance at the heart of the relationship between Dr Panegyres and KW. The potential for such an investigation to be undertaken after the event cannot reasonably be regarded as evidence that, at the material time, there was no imbalance in the doctor-patient relationship between Dr Panegyres and KW.
The Tribunal was correct to conclude that Dr Panegyres breached cl 3.2.6 of the Conduct Code, albeit not for the reasons that the Tribunal gave. Rather, Dr Panegyres exploited his patient KW financially in the wider sense as explained in these reasons. As the impugned finding is correct, Ground 1 should be dismissed.
It might, however, be questioned whether the upholding or dismissal of Ground 1 has a significant practical difference to the overall disposition of the appeal. Ground 1 is determinative of Allegation 6(a) only. Irrespective of the outcome of Ground 1 (and its consequential effect for a finding in terms of Allegation 6(a)), Dr Panegyres continues to be subject to the adverse findings based on Allegation One (excessive attendances) and Allegation Four (consequential excessive charging). As will be seen, this conduct alone suffices for adverse findings of unprofessional conduct.
The alleged failure in terms of Allegation 6(a) is broadly concerned with the same conduct as Allegation Four (charging for the excessive services). However, it has the additional sting of being characterised as a breach of the Conduct Code by reason of being exploitive. The breach of cl 3.2.6 of the Conduct Code is an aggravating factor in terms of Dr Panegyres' conduct. It could have been advanced as such without referring to the Conduct Code at all (eg by alleging that the conduct occurred in circumstances where Dr Panegyres knew of KW's and the Public Trustee's position and he, Dr Panegyres, nevertheless proceeded to exploit KW financially). So understood characterising the conduct as a breach of the Conduct Code adds little to the objective seriousness of Dr Panegyres' conduct.
In any event, while a pleaded issue, the question whether there was a breach of the Conduct Code is not determinative of whether the alleged conduct is unprofessional conduct within the meaning of the National Law. There are parts of the Conduct Code that are more aspirational than standard setting. For example, good medical practice is said to involve being considerate to those close to the patient and respectful of their role.[302] It cannot be assumed that a breach of such an obligation under the Conduct Code will in all cases amount to conduct to which consequences attach under s 196 of the National Law. Ultimately the question is not whether conduct is in breach of the Conduct Code. It is whether the conduct, as found, is behaviour on the part of a practitioner that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct.

[315]

Importantly, the Tribunal's reasons must explain the 'actual path of reasoning' in sufficient detail to enable the unsuccessful litigant to understand why he or she lost and to enable an appeal court to determine whether the decision involved appellable error.[307] That said, the principles are not applied semantically or pedantically but rather by reference to substance over form reading the reasons as a whole in the context of the evidence and the manner in which the hearing was conducted.[308]
Senior counsel for Dr Panegyres criticised the structure of the Tribunal's reasons.[309] It is not necessary to go into those criticisms. It was open to the Tribunal, as it did, to first determine whether as a matter of fact the Board's conduct allegations were established on the evidence. From there it was entirely orthodox to evaluate the conduct, as found, to determine whether Dr Panegyres had behaved in a way that constituted unprofessional conduct or professional misconduct (those being the potential adverse findings in terms of s 196(b)(ii) and (iii) of the National Law).[310] In substance that is the approach that the Tribunal took. The only potential shortcoming is that, rather than examine whether the conduct as found constituted unprofessional conduct, the Tribunal went straight to whether the conduct as found constituted professional misconduct. Given that the Board's case for professional misconduct was dependant on finding that there were one or more instances of unprofessional conduct - and a finding of unprofessional conduct was an available alternate finding under s 196(b) of the National Law in any case - it would have been preferable to first examine and make express findings as to whether unprofessional conduct was established.
Turning to the two complaints that inform Ground 2, when the Tribunal's reasons are read fairly, and as a whole, Dr Panegyres' first complaint as to the adequacy of the Tribunal's reasons cannot be accepted. The Tribunal found that Allegations One, Two, Four, Five, Six and Seven were made out (in some cases only in part).[311] The Tribunal identified that, by reason of that conduct, Dr Panegyres was in breach of various provisions of the Conduct Code.[312] The Tribunal observed that a breach of the Conduct Code may constitute unprofessional conduct; and that multiple instances of unprofessional conduct, considered together, may amount to professional misconduct.[313] The Tribunal then found that, in relation to the various allegations as found (but omitting reference to Allegation Four), Dr Panegyres was guilty of professional misconduct.[314]
So read it should be inferred that the Tribunal found professional misconduct based on there being multiple instances of unprofessional conduct in terms of par (b) of the s 5 definition. The substantiated allegations, individually, were breaches of the Conduct Code and thus seemingly accepted by the Tribunal to constitute unprofessional conduct (although there was no express finding to this effect). The Tribunal did not consider whether any of the substantiated allegations individually constituted professional misconduct in terms of par (a) of the s 5 definition. The Tribunal only considered whether those multiple instances, taken as a whole, constituted conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
Dr Panegyres' second complaint as to the adequacy of the Tribunal's reasons focuses on the conclusion, at [369] to [371], that he was guilty of professional misconduct.
The Tribunal apparently identified the necessity to determine whether the conduct as found amounted to conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[315] However, the Tribunal faced two difficulties in this respect. First, the Board had not elaborated as to why Dr Panegyres' conduct as found constituted professional misconduct.[316] Second, there was limited evidence as to the standard of conduct that would be reasonably expected of a registered health practitioner of Dr Panegyres' level or experience.[317]
The Tribunal identified one potential standard in the evidence.[318] Ultimately, however, the Tribunal relied solely on the Conduct Code as codifying the minimum standards by which Dr Panegyres' conduct might be judged.[319] There is and could be no complaint as to that finding. In so finding the Tribunal adequately addressed the second of the questions referred to in [154] above and articulated its path of reasoning for determining the standard of conduct that would be reasonably expected of a registered medical practitioner of Dr Panegyres' training or experience. The Tribunal then found that the conduct as found amounted to various breaches of the Co[320]ct Code.320 From there the Tribunal reached a conclusion, at pars [369] to [371] of its reasons (in the terms that have been reproduced at [199] above), that Dr Panegyres was guilty of professional misconduct.
Dr Panegyres is justified in his complaint as to the inadequacy of the Tribunal's reasons in the last respect.
Even allowing for the Tribunal's status as an administrative body, and accepting that its reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error,[321] the ultimate finding of professional misconduct is a general and unexplained conclusion. On a fair reading of the Tribunal's reasons Dr Panegyres would not know why it is that, in terms of the third question to be answered in determining the second element for a finding of professional misconduct under par (b) of the s 5 definition in the National Law (see [153] ‑ [154] above), the conduct he was found to have committed was substantially below the standard that would reasonably be expected of a registered health practitioner of his level or experience. The Tribunal's reasons disclose no more than a finding that Dr Panegyres had breached the Conduct Code in various ways. That suffices to explain why it is that Dr Panegyres' conduct was below - or of a lesser standard than - the relevant standard. It does not explain why Dr Panegyres' conduct was substantially below the relevant standard.
The identifiable steps in the Tribunal's reasoning process on the issue are as follows:
1. The Tribunal observes that multiple instances of unprofessional conduct, when considered together, may amount to professional misconduct.[322] So much may be accepted. But that general conclusion does not explain why - in this case - there was professional misconduct. The Tribunal's reasons for such a conclusion get no higher than the third step outlined immediately below.
2. The Tribunal states that it is open to look at Dr Panegyres' conduct as a whole.[323] That is uncontroversial.
3. The Tribunal then finds that, based on Allegations One, Two, Five, Six and Seven, it is open to find that Dr Panegyres' conduct is substantially below the relevant standard.[324] Why that is so is not explained. As Dr Panegyres submitted, the matters considered in making the finding remain hidden.[325] All that the Tribunal has found is that the Conduct Code establishes the relevant standard and that Dr Panegyres has not satisfied that standard. The failure on the part of the Tribunal to explain its path of reasoning is then compounded by the Tribunal's leap from saying that the necessary finding is 'open' to concluding - without more - that 'it so finds'.[326] There is no assessment or evaluation that puts into words why Dr Panegyres' conduct is substantially below the relevant standard.
4. The Tribunal then concludes that Dr Panegyres is guilty of professional misconduct as defined in s 5 of the National Law.[327] That is a statement by way of conclusion without additional reasoning.
On such a critical point - the Tribunal's normative assessment of whether Dr Panegyres' conduct was substantially below that which would be reasonably expected of a medical practitioner of Dr Panegyres' level or experience - the Tribunal's unexplained conclusion does not constitute adequate reasons. In answer to the Ground the Board says that it is difficult to know what more the Tribunal needed to say and that the ultimate finding was a matter of common sense based on the Board's previous findings. That submission cannot be accepted. The Tribunal could and should have explained how, as a matter of evaluative assessment, Dr Panegyres' conduct was a substantial departure from the relevant standard - stating why, in the Tribunal's opinion, the conduct as found was substantially below the standards of ethical and professional practice expected of medical practitioners as evinced in the Conduct Code.
The Tribunal's failure to provide such an evaluation results in the two hallmarks of inadequacy of reasons. Beyond assertion Dr Panegyres has not been informed of why he has been unsuccessful on a significant issue in the case. Nor is this court able to determine whether the process of reasoning which led to the Tribunal's conclusion was in error. As the failure goes to a critical aspect of the finding of professional misconduct - the final step in the evaluative judgment for the Tribunal in making a finding under s 196(1)(b)(iii) of the National Law - the inadequacy of the Tribunal's reasons gives rise to a miscarriage of justice. Ground 2 should be upheld.

[324]

Having regard to the way in which the appeal was conducted, however, it is necessary to consider Ground 7 notwithstanding that Dr Panegyres has been successful in his appeal against the conduct decision. The finding set aside as a result of the successful appeal against the conduct decision was not expressly relied on for the Tribunal's costs decision. Moreover, Dr Panegyres continues to accept that an order as to costs should be made in favour of the Board as to its costs of the hearing before the Tribunal. The matter raised by Dr Panegyres goes only to the Tribunal's approach to quantification of the costs.
There is no doubt that the Tribunal was empowered to make an order as to costs. The Tribunal seemingly identified the source of its power to award costs as being s 87(2) of the State Administrative Tribunal Act.[328] That was also the apparent position of the parties before this court.[329] It should, however, be recognised that s 195 of the National Law provided the Tribunal with a further power to make an order as to costs. Whether the power under s 195 of the National Law is different in any material way to the power under s 87(2) of the State Administrative Tribunal Act need not be considered at present. (Although, in that respect, s 195 of the National Law does not fall to be construed in a context where - because of s 87(1) of the State Administrative Tribunal Act - the default position is that the parties bear their own costs in a proceeding of the Tribunal.)
Any possible distinction between the two powers is irrelevant where Dr Panegyres accepted that a costs order should be made and - even now - only seeks to disturb the Tribunal's determination as to quantum. In that regard the twin requirements of leave to appeal and that an appeal can only be brought on a question of law stand as significant obstacles to any challenge to the Tribunal's fixing of costs.
As to the second requirement, Dr Panegyres seeks leave to appeal on a question of law. Ground 7 asserts inadequacy of reasons: the Tribunal is said not to have disclosed its intellectual process that led to the quantification of costs. Whether reasons are adequate - in the present case whether they meet the statutory obligation under s 77 of the State Administrative Tribunal Act - is a question of law.[330] In this regard I do not accept the Board's submission that Dr Panegyres' complaint is in substance, although not in form, a complaint that the discretion conferred on the Tribunal should not have been exercised as it was. The Ground, and the submissions in support of the Ground, challenge whether the Tribunal adequately disclosed a process of reasoning rather than the outcome itself.
Identification of a question of law is not alone sufficient for leave to appeal. As to whether leave should be granted counsel for the Board referred to Western Australian Planning Commission v Questdale Holdings Pty Ltd.[331] In that case the appellant commission sought leave to appeal from a decision of the Tribunal dismissing an application for costs following a discontinuance of proceedings by the respondent. The court was not satisfied that the commission sought to agitate an appeal on a question of law of arguable merit. However, Martin CJ made some more general observations about the grant of leave to appeal in matters involving practice and procedure such as the discretion to award costs.
The former Chief Justice stated:

[326]

Martin CJ was not satisfied that the commission sought to bring an appeal on a question of law. His Honour went on to state that, even if the proposed appeal was within jurisdiction, it would not ordinarily be appropriate for the Court of Appeal to exercise its discretion in favour of granting leave to appeal because the proposed appeal was concerned with a question of practice and procedure - the exercise of the Tribunal's discretion with respect to costs.[333]
It will be a rare case in which an applicant for leave to appeal is granted leave in relation to the Tribunal's decision on a matter of practice and procedure. That is particularly so where the matter is one involving costs. An appellate court will not, in the absence of strong reasons, interfere with an exercise of discretion on the question of costs.[334] It is necessary to demonstrate manifest error[335] or that the order stands outside the limits of a sound discretionary judgment.[336] However, the authorities which establish these principles are ones in which there is a decision at first instance which properly exposes the decision-maker's reasoning process. It is not possible to determine whether a decision involved express manifest error in the absence of sufficient explanation. In that respect the question of leave is bound up with the merit of Ground 7 and there should be consideration of the adequacy of the Tribunal's reasons before determining the question of leave.
The extent to which reasons are required when a court or tribunal fixes an amount for costs varies according to context. For example, very brief reasons might suffice where the question arises on an interlocutory procedural skirmish and the amount sought by the successful party (and to be awarded) is relatively small. Different considerations arise where a large lump sum is sought following a final hearing of substantial duration. The present case is very much of the latter type. The hearing on the conduct decision occupied seven days and the penalty hearing was a further day. The Board sought $325,000 (having apparently incurred $395,407.10 in costs and disbursements) and was awarded $264,400.
In considering whether the Tribunal's reasons on the costs decision engaged with the issues and disclosed the intellectual process that led to quantification in the amount of $264,400 it is necessary to appreciate the evidence before the Tribunal and the parties' respective positions.
Dr Panegyres accepted that the Board was entitled to costs but said that the costs should be discounted to reflect the Board's failure on Allegation Three (charging for services not provided). At the penalty and costs hearing the presiding member of the Tribunal noted that the costs order sought did not include quantum and said that the Tribunal did not tax costs.[337] At the conclusion of the hearing the presiding member called for the Board to notify the Tribunal of the quantum sought by way of costs so that costs could be fixed.[338] This resulted in a three paragraph letter from the Board's solicitors detailing as lump sums the costs and disbursements incurred and sought.[339] Dr Panegyres' solicitors responded with a four page set of submissions signed by senior counsel.[340]
The Board objected to Dr Panegyres making those further submissions on costs. However, at the conclusion of the penalty and costs hearing the presiding member of the Tribunal had invited Dr Panegyres' legal representatives to make comments on the quantum and the appropriate discount given the Board's failure on Allegation Three.[341]
Among other things Dr Panegyres' submissions raised, as an issue, the quantification of the Board's reasonable costs. The submissions noted that neither the Tribunal nor Dr Panegyres was able to assess reasonableness given that there had been no breakdown of costs. However, by way of illustration Dr Panegyres' submissions referred to the allowances under the Legal Profession (State Administrative Tribunal) Determination 2018 (WA).[342] The 2018 costs determination provided for a daily rate for counsel of $3,410 (GST inclusive) and a solicitor being a senior practitioner of $4,180 (GST inclusive). Based on those allowances an estimate of $112,750 was proffered as reasonable having regard to the time for the hearing and a notional allowance for preparation (four days for counsel and 11 days for the solicitors). Given the substantial difference between the amount claimed by the Board and the estimate it was contended on Dr Panegyres' behalf that, rather than fixing costs, the Tribunal should refer the Board's costs claim for assessment by an executive officer or a nominated member in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA).
Rule 43(1) of the State Administrative Tribunal Rules provides:

[328]

Dr Panegyres' submissions also addressed the issue of discount. It was said that the submission that the Board's costs should be referred for assessment did not detract from the submission that the costs order should be discounted. Dr Panegyres' submissions contended that the Tribunal should determine the appropriate discount in percentage terms and then refer the quantum of costs for assessment.
The Board's solicitors responded to Dr Panegyres' submissions. The response took the form of a six paragraph letter to the Tribunal.[343] The Board noted that Dr Panegyres' estimate made no allowances for two mediation conferences and did not include amounts for experts ($31,723) and filing fees ($7,651). The amount allowed by Dr Panegyres for the solicitors' preparation of the case was also said to be too low; but nothing was said as to the notional allowance for counsel's preparation. It remained the case, however, that no detailed breakdown was provided as to the work done and time taken as had been charged for by the Board's solicitors and counsel.
The Tribunal's reasons in quantifying the Board's costs at $264,400 have been described at [207] ‑ [208] above. In summary:
1. The Tribunal said its approach was to consider what reasonable allowance should be made, taking a robust and broad-brush approach, in respect of the work necessary to be done to bring the proceedings to a conclusion.
2. While stating that its approach was not to look at what had actually been charged, the Board nevertheless referred to the costs incurred ($395,407.10) and sought ($325,000 including $100,000 as to solicitors' fees and $182,600 in counsel's fees).
3. The Tribunal considered the briefing of counsel was justified in the circumstances. That conclusion is uncontroversial.
4. The Tribunal considered that a reduction in costs was appropriate as there was no finding against Dr Panegyres in respect of Allegation Three. However, the Tribunal observed that it was difficult to assess the appropriate reduction when Allegation Three was not a discrete issue involving its own evidence.
5. The Tribunal said that it had had regard to the Legal Profession (State Administrative Tribunal) Determination 2018 (WA). There was, however, no indication as to the parts of the costs determination that had been the subject of consideration. Nor did the Tribunal identify that the relevant work had occurred before the coming into operation of the Legal Profession (State Administrative Tribunal) Determination 2018 (WA).
6. The Tribunal concluded that the Board's costs should be allowed in the amounts of $100,000 (as to the Board's solicitors), $122,000 (as to the Board's counsel) and $42,400 (as to the other disbursements claimed for expert fees and filing fees) in an amount of $264,400.
Taken as a whole the Tribunal's reasons do no more than three things. Initially there was identification of the Tribunal's benchmark - a 'reasonable allowance' in respect of the work necessary to conduct the proceedings with a discount to reflect the Board's failure on Allegation Three. Next the Tribunal refers to the amount charged to and claimed by the Board. Finally, the Tribunal stated a bald conclusion fixing the amount of $264,400 to be allowed to the Board and paid by Dr Panegyres.
It is instructive to identify those matters that had been raised in the materials and submissions before the Tribunal that were not referred to by the Tribunal in its reasons on the costs quantification. First, the Tribunal did not acknowledge or deal with Dr Panegyres' contention that the costs should be referred for assessment rather than fixed. Second, the Tribunal did not deal with whether, and if so how, in the absence of any breakdown it was able to assess the reasonableness of the Board's lump sum amounts as charged and claimed and identify the work attributable to those amounts. Third, the Tribunal did not identify what, if any, reduction was ascribed to the Board's failure on Allegation Three (noting that the Tribunal did not reduce the amounts sought by the Board for its solicitors' costs and disbursements other than counsel fees). To the contrary the Tribunal's reasons stated that it was difficult to assess the appropriate reduction. Fourth, the Tribunal did not deal with the illustration provided in Dr Panegyres' submissions. Nor did the Tribunal consider and evaluate the amount claimed and allowed by reference to the illustration. For example, using the $3,410 daily allowance under the 2018 costs determination, the amount allowed for counsel fees ($122,000) inferred an allowance of over 25 days for preparation[344] (accepting that there was eight days of hearing and two day long mediations). There was no articulation of why 25 days preparation was reasonably necessary for eight days of hearing. The failure to address the point was stark given that the Board's solicitors' responsive letter had not challenged Dr Panegyres' submissions as to an appropriate allowance for preparation by counsel.
The costs amount sought by the Board and allowed by the Tribunal was substantial by any measure. It was an amount sought and allowed for work in proceedings before the Tribunal - where one of the main objectives is to act speedily, with as little formality and technicality as is practicable, minimising the costs to the parties.[345]
It may be accepted that in dealing with quantification of costs the Tribunal is entitled to be robust and broad-brush. However, there is a difference between being robust and broad-brush, on the one hand, and being no more than essentially conclusory, on the other. Having regard to the substantial nature of the Board's claim for costs it was necessary for the Tribunal to consider and evaluate the matters enunciated in [337] above. That was all the more so where, prima facie, the amount claimed (and eventually allowed) was incompatible with the Tribunal's objects. However, reading the Tribunal's reasons as a whole, and after making due allowance for the nature of the task the Tribunal was engaged in, there is no identified process of reasoning which discloses why the Tribunal considered that, having applied a discount to reflect the Board's failure on Allegation Three, an amount of $264,400 was a reasonable allowance in respect of the work necessary to conduct the proceedings. To the contrary, as counsel for the Board accepted before this court, the Tribunal simply picke[346] figure.346
In opposing Ground 7 counsel for the Board submitted that the level of reduction was clearly identifiable. Counsel said that the solicitors' fees had been reduced by 35 per cent and counsel's fees by 37 per cent. Mathematically that is correct when comparing the costs allowed against the fees charged (although the reduction is a lesser amount when comparing costs allowed against costs claimed). However, to so identify the extent of the reduction does not deal with the gravamen of the Ground. It does not grapple with whether, and if so how, the Tribunal disclosed the intellectual process which led it to find that $264,400 was a reasonable allowance in respect of the work necessary to conduct the proceedings. All the more so it does not identify how the Tribunal evaluated and assessed a reasonable allowance when not in possession of any breakdown of the work done and time taken as claimed in respect of the Board's solicitors and counsel.
The Board also submitted that it was within the Tribunal's discretion to make an order for payment of about 65% of the Board's costs. That cannot be determined given the opaque nature of the Board's claim for costs. It assumes reasonableness of the amount charged on a solicitor and own client basis where there is no visibility as to the costs charged beyond the lump sum amounts. In any case Ground 7 is concerned with the adequacy of the Tribunal's reasons rather than whether the outcome discloses implied error. That said, inadequacy of reasons does not necessarily amount to appellable error. An appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice.[347] If this court were satisfied that the $264,400 as allowed by the Tribunal was within the bounds of a sound discretionary judgment it might be appropriate not to grant leave to appeal. However, in the absence of any breakdown of the Board's claim for costs in respect of its solicitors' and counsel's fees, I am not so satisfied.
In the specific circumstances of this case the Tribunal's reasons for quantifying the costs to be allowed to the Board at $264,400 are inadequate as a matter of law. This is particularly so where the Tribunal had no breakdown of the amounts charged and claimed, meaning that there was no identification of the work being claimed for. The reasons do not reveal the process of reasoning which led the Tribunal to assess the $264,400 as being a reasonable allowance in respect of the work necessary to conduct the proceedings (having provided for a discount as to Allegation Three). The Tribunal does no more than express its conclusion. The Tribunal's unexplained conclusion is insufficient to inform Dr Panegyres why costs have been allowed at that amount and does not suffice to enable this court to determine whether the Tribunal's reasoning was infected by error. Ground 7 has been made out.
In circumstances where an error in terms of Ground 7 has been established I am persuaded that Dr Panegyres should have leave to appeal against the costs decision. I acknowledge the restraint that should be shown on an application for leave to appeal where the proposed appeal concerns a matter of practice and procedure such as costs. But in the present case the size of the costs order is so substantial that allowing the error to go uncorrected would impose substantial injustice. Leave to appeal should be granted and Ground 7 allowed.

[337]

Their Honours had previously observed that:
1. An appellate court should not usurp the fact-finding function of a tribunal such as the Tribunal.[353]
2. The equivalent of s 105(9) did not enlarge the court's jurisdiction on appeal - but rather conferred powers on the court in aid of the exercise of that jurisdiction.[354] (As Hayne and Kiefel JJ later put it, the powers given by the equivalent of s 105(9) are only to be exercised as a remedial consequence of dealing with an error of law.)[355]
The procedural background to Osland v Secretary, Department of Justice was unusual. The VCAT had exercised a power under freedom of information legislation to grant access to various exempt documents - certain legal advices - on the basis that the public interest required that access to the documents should be granted. The matter came back to the Court of Appeal on remitter from the High Court. On a second appeal the High Court identified that the Court of Appeal's task on the remitter was first to determine the legal question of whether differences in the legal advices were capable of supporting an opinion that the public interest required access to be given. The Court of Appeal was found to have instead trespassed on the VCAT's function by determining the public interest question that arose on the application before the VCAT without first identifying relevant legal error in the VCAT's decision.
The facts in Osland v Secretary, Department of Justice, and in particular the nature of the power that had been exercised by the VCAT, explain the plurality's reference to the formation of an opinion which is based on considerations of public interest. Their Honours had previously made observations as to the nature of public interest determinations in the exercise of statutory powers and the 'evaluative and essentially factual' or 'discretionary value' judgment entailed by such determinations.[356] It is that kind of opinion, based on considerations of public interest, which was being referred to in the passage reproduced in [347] above as being a matter which ought ordinarily be remitted where an appeal is allowed. Nevertheless, the plurality accepted that there may be cases - ones outside the ordinary - where an appellate court could itself (having first found legal error on the part of the administrative tribunal) make a substitutive order even in those circumstances. Indeed, their Honours expressly noted that this was an available course to the Court of Appeal in that case having regard to the protracted nature of the proceedings and the undisputed pri[357]y facts.357
While the Board's referral of Dr Panegyres' conduct to the Tribunal has an element of public interest - the object of all vocational regulation disciplinary proceedings being the protection of the public - it is not a case involving a public interest determination in the sense used in Osland v Secretary, Department of Justice. The essential task is instead one of applying the facts as found to standards determined by statutory criteria. While the latter task is evaluative it is one that can be performed by this court.
In the present case Dr Panegyres expressly accepts most of the Tribunal's factual findings. The finding of breach of cl 3.2.6 of the Conduct Code, although challenged, is one I would uphold. Otherwise the main issues are ones of characterisation (whether, as contended by Dr Panegyres, the adverse findings constitute a single instance of unprofessional conduct insofar as, on Dr Panegyres' case, the findings are ultimately all attributable to the single event of the issuing of the Invoice to the Public Trustee) and evaluation (whether the behaviour as found constitutes unprofessional conduct or professional misconduct). In those circumstances it may be appropriate for this court to determine the matter for itself. The parties made submissions on that basis (while the Board's submissions were largely made in the context of its cross-appeal the matters that motivated that stance applied equally to Dr Panegyres' appeal).[358]
The events leading to these proceedings occurred in 2012 and 2013. The object of speedy resolution within the Tribunal has not been achieved given that the proceedings commenced in 2015. It is desirable that this court bring finality to the parties if it is possible to do so consistent with the due administration of justice and this court's power on appeal under s 105 of the State Administrative Tribunal Act.
The starting point in determining whether this court may substitute its own decision, rather than send the matter back to the Tribunal for reconsideration, is to assemble the unchallenged factual findings and, to the extent necessary, then consider any further factual findings that can properly be made (eg on uncontested evidence or by inference from the primary facts already found by the Tribunal).[359] That must be done having regard to the Board's pleaded case as advanced before the Tribunal.

[339]

These reasons have already recounted the background facts as found by the Tribunal (see [117] ‑ [[[360]](2020_58.html#_Ref2377<a name=)] above).360 They will not be repeated, but nevertheless form part of the unchallenged factual findings for the purpose of determining whether this court ought to exercise its power under s 105(9)(b) of the State Administrative Tribunal Act. So too these reasons have already set out the substance of the Board's case against Dr Panegyres on Allegations One, Two, Four, Five, Six and Seven (see [158] ‑ [160] above). It is unnecessary to refer once again to Allegation Three (charging for services not provided). As the Board's proposed cross-appeal has failed it remains the case that this conduct allegation has failed. Dr Panegyres' failure on Ground 1 means that, for my purposes, that the Board's referral in terms of Allegation 6(a) (breach of the Conduct Code) is sustained in relation to the breach of cl 3.2.6 (exploiting KW financially) - although, as explained, the breach of cl 3.2.6 is primarily an aggravating factor as to Dr Panegyres' other conduct in issuing the Invoice.
Similarly, reference has already been made to the material factual findings relevant to the Board's conduct case on Allegations One, Two, Four, Five, Six (so far as consisting of the breaches in addition to the breach of cl 3.2.6) and Seven and various material concessions made by Dr Panegyres or on his behalf.[361] While repetitive it is convenient to now re-state those matters:
1. In relation to Allegation One, Dr Panegyres provided medical services to KW which were not all clinically indicated and were not all reasonably required for KW's well‑being. Specifically, after the initial two weeks of KW's hospitalisation it was not necessary or clinically indicated for Dr Panegyres to see KW for a full neurological review more than three times per week. Dr Panegyres' consultations after that time were double that which was clinically indicated or reasonably required for KW's well‑being.[362]
2. Dr Panegyres provided the relevant services to KW in contemplation that, in due course, a fee for the services would be raised.[363]
3. In relation to Allegation Four, the Invoice was excessive because it charged for attendances that were not necessary or clinically indicated. Dr Panegyres ought not to have charged KW for the attendances that were not necessary or clinically indicated.[364] In relation to Allegation 6(a), for the reasons given in addressing Ground 1, Dr Panegyres' conduct in issuing the Invoice amounted to exploiting a patient financially in breach of cl 3.2.6 of the Conduct Code.
4. Importantly, as senior counsel for Dr Panegyres sought to emphasise before this court, there was no finding of deliberate over servicing so as to obtain a financial benefit at the expense of KW.
5. In relation to Allegation Two, Dr Panegyres failed to keep adequate and contemporaneous records of his treatment and care of KW sufficient to justify the amount that he charged KW.[365]
6. In relation to Allegation Five, Dr Panegyres failed to obtain the consent of the Public Trustee (being KW's plenary administrator) to the fee arrangement for KW.[366]
7. In relation to Allegation Six, Dr Panegyres breached the Conduct Code in two additional respects, namely:[367]

[342]

In relation to Allegation Seven, Dr Panegyres charged Medicare Australia for services to KW for which he was not entitled to charge (eg cognitive testing he did not perform, certain telephone calls, reports to the Tribunal and consultations for which there were no adequate contemporaneous notes) under MBS item numbers.[368]
As to the last matter, the Board made the allegation that Dr Panegyres charged Medicare Australia under MBS item numbers when Dr Panegyres 'knew or ought to have known' that he was not entitled to charge under those item numbers.[369] If Dr Panegyres acted with such actual or constructive knowledge that would make the conduct as found more serious. The Tribunal made no relevant findings in relation to the allegation of knowledge. At the hearing of the appeal counsel for the Board asserted that Dr Panegyres admitted that he ought to have known that he was not entitled to charge under the MBS items.[370] The passage of trial transcript relied on does not make good that assertion.[371] Dr Panegyres admitted that he had made a mistake in instructing his staff to charge under the MBS items. But there was no admission that Dr Panegyres ought to have known at the time that he was not entitled to so charge.
This court is not in a position to make a positive finding that Dr Panegyres ought to have known that he was not entitled to charge under the MBS items. There does not appear to have been any cross-examination of Dr Panegyres on the subject. All the more so this court is not in a position to make a positive finding that Dr Panegyres knew that he was not entitled to charge under the MBS items. To do so would be to reject Dr Panegyres' evidence, on oath, that the charges were a mistaken error on his part. It would also be incompatible with the Board's concession before this court that there were no findings of conscious wrongdoing or bad faith on the part of Dr Panegyres.[372]
The Tribunal's findings on the Board's conduct case against Dr Panegyres included other breaches of the Conduct Code.[373] However, those breach findings were not in conformity with the Board's pleaded case. Only Allegation Six raised breaches of the Conduct Code. Had the matter been raised in the proceedings before the Tribunal it might have been permissible to assess Dr Panegyres' conduct as found in relation to Allegations One, Two, Four, Five, Six and Seven by reference to the Conduct Code. The Conduct Code provides a relevant standard. But, as a matter of procedural fairness, it is impermissible to adopt the Tribunal's additional findings of breach of the Conduct Code that were never part of the Board's pleaded case. Any s 196(1)(b) conclusions should be in terms of the Board's pleaded case. It was that case, and only that case, that Dr Panegyres was called upon to answer.
In assessing the standard reasonably expected of a registered medical practitioner of Dr Panegyres' training or experience (as to professional misconduct), or as might reasonably be expected of Dr Panegyres by the public or Dr Panegyres' peers), this court has a similar difficulty to the Tribunal. The Board provided limited expert evidence that went to the relevant standard. All that can be done is to rely on the Tribunal's unchallenged findings that:
1. It would not be acceptable for Dr Panegyres to charge for any consultations that are excessive, unnecessary or otherwise not reasonably required for a patient's well-being.[374]
2. The Conduct Code codifies the minimum standards by which Dr Panegyres' conduct may be assessed.[375] (A finding supported by s 41 of the National Law even though that statutory provision was not referred to by the Tribunal.)

[344]

The Tribunal's unchallenged factual findings and the various concessions made by or on behalf of Dr Panegyres, as set out in [355] ‑ [360] above, are sufficient to enable this court to exercise its jurisdiction under s 105(9)(b) of the State Administrative Tribunal Act.
There is only one respect in which the Tribunal did not deal with the Board's case. That is the allegation that Dr Panegyres charged Medicare Australia under MBS item numbers when Dr Panegyres knew or ought to have known that he was not entitled to so charge. I have already observed that this court is not in a position to make a positive finding on this allegation. That is a reason to remit the matter to the Tribunal. Against that, however, there are three countervailing factors. First, this is a relatively small part of the Board's allegations of professional misconduct or unprofessional conduct on the part of Dr Panegyres. Moreover, ignoring the question of knowledge, Allegation Seven has been sustained. Second, given the protracted history of the proceedings it is contrary to the due administration of justice to send the matter back to the Tribunal when this court is in a position to deal with the remainder of the Board's case. Third, it is likely that the reason that the Tribunal did not deal with the issue is because it was not agitated in any substantial way before the Tribunal. The part of Dr Panegyres' cross-examination as relied on by counsel for the Board before this court did not raise the point. Nor was it referred to in the Board's closing address to the Tribunal. The Board did not direct this court to any other evidence in support of the allegation.
In all the circumstances it would not be appropriate to remit the matter to the Tribunal so as to deal with this single subsidiary point when the Board did not avail itself of the prior opportunity before the Tribunal to make out its pleaded case.[376]
In any case, had the Tribunal turned its mind to the issue, there was only one finding the Tribunal could have reached: there was no evidence that Dr Panegyres knew or ought to have known that he was not entitled to charge Medicare Australia under the relevant MBS item numbers. Alternatively, the evidence was incapable as a matter of law of sustaining the Board's case on that allegation. This court is entitled to proceed on that basis. The only conclusion reasonably open was that, while Allegation Seven was made out to the extent that Dr Panegyres charged Medicare Australia for services to KW for which he was not entitled to charge, it was not the case that Dr Panegyres knew or ought to have known that he was not entitled to charge under those MBS item numbers.
Having so resolved that one outstanding factual matter, the remaining issues for determination involve questions of characterisation and evaluation. Neither issue requires this court to form an opinion based on considerations of public interest. They are determinations that can be made by this court consistently with its limited jurisdiction under s 105 of the State Administrative Tribunal Act. Given the protracted nature of the proceedings this court should proceed to make substitutive orders under s 105(9)(b). That is all the more so where each party invited the court to take that course.

[346]

There are two substantive matters for determination having identified, at [355] ‑ [360] above, the factual basis on which this court may proceed to make the decision that the Tribunal could have made. First, the characterisation question of whether the issues as to Dr Panegyres' conduct were attributable to the single isolated event of issuing the Invoice without the Public Trustee's consent to the fee arrangement (as Dr Panegyres would have it) or multiple instances of behaviour (as the Board contended). Second, the evaluative assessment of whether the conduct so characterised constituted either unprofessional conduct or professional misconduct.
Dr Panegyres contended that, properly understood, there was but a single instance of conduct - all of the Board's complaints being attributable to the issue of the Invoice - which amounted to no more than unprofessional conduct. Dr Panegyres said that if the Invoice had not been issued:[377]
1. It would not have mattered that he had performed more neurological reviews than were necessary or clinically indicated (the conduct issue being whether he should have charged for the attendances).
2. It would not have mattered whether his records justified the charge imposed on the Invoice.
3. No issue would have arisen as to charging for unnecessary attendances.
4. No issue would have arisen as to obtaining the Public Trustee's consent to the fee arrangement for KW.
5. No issue would have arisen as to which MBS items properly applied to the charges rendered by the Invoice.
In oral submissions senior counsel for Dr Panegyres said that the vice of Dr Panegyres' conduct was the raising of the Invoice as had he not raised the Invoice there would not have been a complaint.[378] Counsel also referred to the Board's case as being one of charging a person under a disability for services not provided or charging excessively.[379]
I do not accept that as being an accurate description of the Board's case. First, the Board's amended application particularised the allegations of professional misconduct or unprofessional conduct as separate instances of impugned conduct.[380] Individual mention was made as to the provision of services which were not clinically indicated and so were excessive, unreasonable or otherwise not reasonably required for KW's well‑being.[381] The Board opened its case on that basis referring to the 'second matter' as being charging excessively and the 'third matter' as being excessive provision of services.[382] There was thus an articulated distinction between provision of the services and charging for the services. Second, in closing submissions before the Tribunal the Board again referred to it pursuing a case of excessive provision of services (albeit as a fall back to the primary case of charging without providing the services).[383]
It is unsurprising that the Board formulated its case in this way when it is recalled that one of the specific instances of 'unprofessional conduct', as provided for in par (d) of the s 5 National Law definition, is:

[348]

Accordingly, the legislature has mandated that such excessive servicing - irrespective of whether or not the health practitioner charges for it - will be unprofessional conduct. No doubt that is because, generally speaking, the health practitioner professions are remunerated on a fee for service basis. The expectation is that where there is such excessive servicing there will in the ordinary course be a commensurate charge. Nevertheless, the conduct issue is concerned with providing services that are excessive, unnecessary or otherwise not reasonably required for the person's well-being rather than the rendering of a charge for those services.
While, in practical terms, it might be that the Invoice provoked the complaint on the part of the Public Trustee, it does not follow that the conduct issue was confined to charging by the Invoice. To focus on what drew the complaint is overly simplistic. Apart from and in addition to the Invoice the Board's case (as accepted by the Tribunal and not challenged on appeal) concerned Dr Panegyres' conduct over the whole of the 87 day period from 27 November 2012 to 21 February 2013 in providing services that were not clinically indicated and so were excessive, unnecessary or otherwise not reasonably required for the person's well-being. The impugned conduct was not merely bound up with the raising of the Invoice. Dr Panegyres' characterisation of his behaviour as constituting a single instance of conduct[384] or single event[385] - all attributable to the issuing of the Invoice to the Public Trustee - cannot be accepted.
Ignoring, as unsustained, Allegation Three (charging for services not provided), I consider that the Board's referral to the Tribunal involved three distinct aspects of conduct on the part of Dr Panegyres:
1. Allegation One concerned the services provided by Dr Panegyres to KW over the period from 27 November 2012 to 21 February 2013, ie Dr Panegyres' consultations and other attendances on KW.
2. The post‑22 January 2013 failure to consult with and consider the views of the Public Advocate about KW's on-going treatment needs in breach of cl 3.3.3 of the Conduct Code (the second part of Allegation Six).
3. The remaining allegations (Allegations Two, Four, Five, Six (as to the breaches of cl 3.2.6 and cl 3.5.3 of the Conduct Code) and Seven) which were all referable - at least in part - to Dr Panegyres' act of charging KW by raising the Invoice on 3 March 2013. In that regard Dr Panegyres' conduct in raising the Invoice was challenged, and found to be wanting, in a number of different respects.
As to the third category, it is plain that Allegation Four (excessive charging), Allegation Seven (charging Medicare Australia for services for which Dr Panegyres was not entitled to charge) and Allegation 6(a) (breach of cl 3.2.6 of the Conduct Code) harken back to the Invoice. (Although, as to the latter, given the aggravating feature that Dr Panegyres' conduct amounts to financial exploitation, the Invoice alone does not establish the breach.) So too Allegation Five is dependent on the Invoice, although here again there is an additional component in that the conduct called into question was Dr Panegyres' issue of the Invoice without having first obtained the Public Trustee's consent to the fee arrangement. The third part of Allegation Six (breach of cl 3.5.3 of the Conduct Code) effectively raised the same conduct as Allegation Five. Allegation Two and the finding of failure to keep adequate and contemporaneous records was only relied on so far as the records were insufficient to justify the amount charged by the Invoice.
Having identified the three relevant conduct categories it is necessary to determine whether the conduct so established constituted either unprofessional conduct or professional misconduct. As the Board alleged the conduct to be professional misconduct based on par (a) or par (b) of the s 5 definition of professional misconduct, the initial step must be to consider whether the conduct amounted to unprofessional conduct.
Dr Panegyres' excessive servicing of KW between 27 November 2012 and 21 February 2013 constituted unprofessional conduct within par (d) of the s 5 definition of the National Law. The finding that the services were not all clinically indicated and not all reasonably required of KW's well‑being is not alone determinative. As previously explained, whether health services are excessive, unnecessary or otherwise not reasonably required for a person's well-being involves an evaluative exercise (see [148] above). But once it is appreciated that after an initial two week period Dr Panegyres' consultations were double that which was clinically indicated or reasonably required for KW's well‑being it inexorably follows that there has been unprofessional conduct within par (d) of the inclusive definition.
I am also satisfied that Dr Panegyres' post-22 January 2013 failure to consult with and consider the Public Advocate's views about KW's on-going treatment needs constituted unprofessional conduct. That conduct (being professional conduct) was in breach of cl 3.3.3 of the Conduct Code. In this respect it may be accepted that the Conduct Code evidences what constitutes appropriate professional conduct or practice for the medical profession. By virtue of having engaged in unprofessional conduct in breach of the Conduct Code Dr Panegyres' conduct was of a lesser standard than that which might reasonably have been expected by the public or Dr Panegyres' professional peers.
Dr Panegyres seemingly conceded that the raising of the Invoice constituted unprofessional conduct.[386] That concession was properly made. To the extent that the Invoice charged for consultations that were excessive, unnecessary or otherwise not reasonably required for KW's well‑being the conduct fell within the designated meaning of unprofessional conduct given the Tribunal's unchallenged finding at [365] of the Tribunal's reasons (see [360.1] above). So too it is unprofessional conduct to charge Medicare Australia for services for which Dr Panegyres was not entitled[387] charge.387 The conduct in issuing the Invoice without obtaining the Public Trustee's consent to the fee arrangement for KW was in breach of cl 3.5.3 of the Conduct Code and thus, as with the previous category, unprofessional conduct within the designated meaning of the term in s 5 of the National Law. All the more so Dr Panegyres' conduct in breach of cl 3.6.2 of the Conduct Code was unprofessional conduct. It should be accepted, given the Conduct Code, that the financial exploitation of a patient was professional conduct of a lesser standard than that which might reasonably be expected of a medical practitioner by the public or Dr Panegyres' professional peers.
On Allegation Two, however, failure to keep adequate and contemporaneous records so as to be able to justify an amount charged was never alleged by the Board to be a breach of the Conduct Code.[388] The formal finding of the Tribunal to that effect[389] was without reasons and unexplained. It cannot be relied on. There is, and was before the Tribunal, no other basis in the evidence (eg expert opinion) to find that this aspect of Dr Panegyres' conduct constituted unprofessional conduct (let alone professional misconduct). I would not find that the issue of the Invoice constituted unprofessional conduct by reference to Allegation Two.
The Board sought a finding of professional misconduct rather than unprofessional conduct.
I have found that there were multiple instances of unprofessional conduct on the part of Dr Panegyres. Such conduct will, individually or when considered together, constitute professional misconduct if it amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience to Dr Panegyres. It is here that there must be examination of the questions discussed at [154] above. Relevantly, what standard of conduct would reasonably be expected of a registered medical practitioner of Dr Panegyres' level of training or experience? Was Dr Panegyres' conduct substantially below that standard?
One of the difficulties for the Tribunal was the limited efforts taken by the Board to either enunciate or establish the relevant standard.[390] In findings that are unchallenged the Tribunal concluded:

[353]

Thus, in Dekker v Medical Board of Australia this court accepted that there were at least three means of establishing a relevant professional standard: (1) expert evidence as to generally accepted standards or duties; (2) professional conduct rules (the Conduct Code is of that nature and has additional evidentiary significance given s 41 of the National Law); and (3) applicable statutory regimes. The court also accepted that there were some professional standards that could be accepted without evidence. As shown by the example provided by the court - a medical practitioner having sexual relations with his or her patient - the latter category is unlikely to involve questions of medical practice or procedure. Rather, while acknowledging that the specific statutory language under consideration has altered greatly over time, cases within the latter category (ie cases other than involving medical practice and procedure) have generally involved an element of moral turpitude, fraud or dishonesty.[395]
In that sense the distinction pressed by the Board is made out. It is, however, of little consequence for the proper final disposition of the appeal. Apart from Allegation Three (charging for services not provided) the referral to the Tribunal was never one alleging conscious wrongdoing. There are no findings of conscious or reckless impropriety on the part of Dr Panegyres.
In the present case, as appears from the Tribunal's reasons at [359] to [364], little attention was given by the Board to enunciating or establishing a relevant standard. In terms of a relevant standard all that was established was that it was unacceptable to charge for excessive consultations[396] and the minimum standards for all medical practitioners as set out in the Conduct Code.[397] True it is that the expert evidence did establish that it was not necessary or clinically indicated for Dr Panegyres to see KW for a full neurological review any more than three times per week.[398] However, that went to the question of what was reasonable by way of frequency of attendances rather than the existence of any generally accepted standard of conduct that might reasonably be expected of a registered medical practitioner of Dr Panegyres' level of training or experience. There was nothing express to tie the former to the latter. In circumstances where it would have been a simple step to adduce such evidence directly I am not prepared to infer the existence of a standard of conduct from the experts' conclusions as to reasonable frequency of attendances.
Insofar as the Conduct Code established applicable standards, the Board's case, as pleaded in relation to Allegation Six, relied only on breaches of cl 3.2.6, cl 3.3.3 and cl 3.5.3 of the Conduct Code. There is, as previously noted, common features between Allegation 6(a)'s breach of cl 3.2.6 of the Conduct Code (exploiting financially) and the adverse finding the subject of Allegation Four (excessive charging). Accordingly, it is convenient to defer the evaluation exercise in relation to the breach of cl 3.2.6 of the Conduct Code until after having dealt with the finding the subject of Allegation Four.
As to the other two breaches within Allegation Six:
1. Clause 3.3.3 of the Conduct Code requires a doctor to give his or her patient an adequate opportunity to question or refuse intervention and treatment. Dr Panegyres did not provide the Public Advocate with any opportunity post-22 January 2013 to have a say as to KW's on-going treatment.
2. Clause 3.5.3 of the Conduct Code requires a doctor to ensure that his or her patients are informed about fees and charges. Dr Panegyres did not provide the Public Trustee with any opportunity post-22 January 2013 to agree to the fee arrangement that Dr Panegyres sought to invoke.
In those two respects Dr Panegyres' conduct was below the standard established by the Conduct Code. The conduct might be said to be substantially below the standard so far as there are only two possibilities. A patient either is, or is not, afforded an adequate opportunity to question or refuse treatment; and a patient either is, or is not, informed about fees and charges. But whether behaviour constitutes professional misconduct as being substantially below the relevant standard involves a qualitative evaluation rather than a binary determination. It cannot be enough that, there being only two possibilities, the practitioner fails to meet the standard. That would see automatic substitution of the more serious finding of professional misconduct for unprofessional conduct whenever the subject matter of the impugned conduct involves such an omission.
I am not satisfied that on the evidence the Board established that Dr Panegyres' conduct in breach of cl 3.3.3 and cl 3.5.3 of the Conduct Code was substantially below the relevant standard. Dr Panegyres' failure to raise KW's ongoing treatment with the Public Advocate, and seek consent to a fee arrangement with the Public Trustee, was one of omission: he failed to act where action was required. But there was nothing to suggest a conscious or wilful intentional failure on the part of Dr Panegyres. Dr Panegyres' failing was one of inadvertence rather than one involving moral turpitude. The behaviour is unprofessional conduct rather than professional misconduct.
There is a difficulty in relying on the standards established by the Conduct Code in relation to the other instances of unprofessional conduct (ie conduct other than that within Allegation Six). The Board's pleaded case only relied on cl 3.2.6, cl 3.3.3 and cl 3.5.3 of the Conduct Code. Although it had not been mentioned or relied on by the Board at the hearing, the Tribunal's reasons nevertheless referred to cl 5.2 of the Conduct Code. This provides:

[361]

The Tribunal found that Dr Panegyres was in breach of cl 5.2 of the Conduct Code on the basis that Dr Panegyres had failed to ensure that that the services provided were necessary and likely to benefit KW.[399] That finding of breach exceeded the Board's pleaded reliance on the Conduct Code. It cannot be relied on for present purposes; such a breach was no part of the Board's case. A similar procedural fairness issue arises in considering whether cl 5.2 of the Conduct Code may be relied on as establishing an applicable standard. In circumstances where cl 5.2 of the Conduct Code was neither pleaded nor relied on by the Board at the hearing before the Tribunal it is, in my view, impermissible to rely on cl 5.2 for this purpose.
As to the excessive servicing finding (Allegation One), it is possible to rely on the par (d) part of the s 5 definition of 'unprofessional conduct' as establishing a standard of conduct. In nominating certain conduct as unprofessional conduct the legislature has identified various conduct that is inconsistent with the standard that is reasonably expected of health practitioners by the public and professional peers. In terms of par (d) one such standard is that registered health practitioners ought not provide a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well-being. Despite the differences in the language employed as to the relevant standard in the s 5 definitions of 'unprofessional conduct' and 'professional misconduct' (refer to [155] above) I consider the same standard to be applicable for the purpose of evaluating whether there is professional misconduct.
So too, as to the excessive charging finding (Allegation Four), there is an applicable standard which may be considered: the Tribunal made the unchallenged finding that it is unacceptable for a practitioner to charge for consultations that are excessive, unnecessary or otherwise not reasonably required for a patient's well-being. As so expressed there are common considerations in evaluating whether the excessive servicing and the excessive charging constitutes professional misconduct. That is not surprising when it is remembered that, while the excessive charging also concerns an amount that should not have been paid by Medicare Australia (the $1,033.50),[400] the excessive charging was otherwise coextensive with the excessive servicing.
Based on the concession that, after the initial two weeks Dr Panegyres' consultations were double that reasonably required, the excessive servicing consists of some 26 consultations.[401] The excessive charging is some $9,100 to $10,133.50.[402] However, it was accepted that Dr Panegyres was entitled to charge KW for the amount charged to Medicare Australia,[403] ie the $1,133.50 was not chargeable as against Medicare Australia but was not excessive as against KW. On that basis the overcharging consisted of an amount of $9,100 in relation to the total Invoice of $25,265.10 (about 36% of the total amount charged).
In relation to the excessive servicing and charging Dr Panegyres' conduct falls short of the relevant standard. That is why there have been findings of unprofessional conduct. For that unprofessional conduct to constitute professional misconduct Dr Panegyres' conduct must be substantially below the relevant standard. The question is one of degree. But it arises in a context where there is no moral turpitude, fraud or dishonesty. It was accepted that Dr Panegyres provided the services in contemplation that they would be charged for. That is what happened: Dr Panegyres rendered the Invoice. There was, however, no case advanced - and no finding - of deliberate over servicing to obtain financial benefit. There was no criticism of the quality of care provided by Dr Panegyres and no suggestion that Dr Panegyres was responsible for the length of KW's stay at JHC.
In support of a finding of professional misconduct is the fact that the excessive servicing continued over a sustained period (from at least mid‑December 2012 to 21 February 2013). The excessive attendances and charges also represent a significant proportion of the total attendances and charges. The total amount of the excessive charges is itself substantial. The first and third of those matters is tempered by the circumstance that the length of KW's hospitalisation contributed to the number of excessive neurological assessments on the part of Dr Panegyres and the eventual excessive charges. Dr Panegyres was not responsible for the prolongation of KW's hospital stay. In that sense these two conduct matters were exacerbated by external events in the form of complications in the appointment of a guardian and administrator and the outbreaks of gastroenteritis that delayed KW's discharge to a home. However, both the servicing and the charging were then aggravated by Dr Panegyres' breaches of the Conduct Code in not consulting with or considering the views of the Public Advocate as to KW's treatment needs and in not obtaining the Public Trustee's consent to the fee arrangement. The excessive charging also manifested itself in Dr Panegyres' incorrect charges to Medicare Australia.
In the circumstances referred to in the preceding paragraph the unprofessional conduct represented by Dr Panegyres' excessive services and excessive charging was no mere technical contravention on his part. Even taking into account that the length of KW's hospitalisation was beyond Dr Panegyres' control, and cannot be held against him, both matters are serious instances of unprofessional conduct. The former is serious because of its sustained and repetitive nature; the latter is serious because of the amount involved and the failure to recognise that services should not be charged for where they are excessive, unnecessary or otherwise not reasonably required for a patient's well-being.
I am, however, unable to conclude that the excessive servicing or excessive charging constitutes professional misconduct (either individually or when considered together).
The findings concern a single patient and an unusual situation where Dr Panegyres' care of that patient was prolonged due to events beyond Dr Panegyres' control. There is no suggestion that Dr Panegyres' conduct compromised KW's health care or his outcome as a patient. There are no findings of lack of medical competence or unsafe clinical care. The absence of any conscious wrongdoing or bad faith puts Dr Panegyres' conduct into a category where he has acted without moral turpitude, fraud or dishonesty. The conduct of which Dr Panegyres is guilty is well removed from that which has traditionally been regarded as the kind of conduct where, without evidence of relevant standards, it was possible to say the conduct would reasonably be regarded as disgraceful or dishonourable by Dr Panegyres' peers of good repute and competency or inconsistent with him being a fit and proper person to hold registration as a medical practitioner. All of that belies a finding of professional misconduct on the basis that Dr Panegyres' conduct was substantially below the relevant standard. That is particularly the case given the limited basis on which it has been possible to identify the relevant standard. The Board's failure before the Tribunal to clearly enunciate and establish the relevant standard of conduct makes it difficult to identify the gradations implicit in the standard such as would assist in establishing that Dr Panegyres' conduct was substantially below the standard.
The excessive servicing and the excessive charging, like the conduct in breach of the Conduct Code, is unprofessional conduct rather than professional misconduct.
The remaining head of unprofessional conduct as found is that the subject of Allegation 6(a) (breach of cl 3.2.6 of the Conduct Code in exploiting a patient financially). In circumstances where there is no moral turpitude, fraud or dishonesty on the part of Dr Panegyres this is, at most, conduct in aggravation of the excessive charging. I am unable, for the same reasons as I have found that the excessive charging was not professional misconduct, to find that Dr Panegyres' breach of cl 3.2.6 of the Conduct Code constituted professional misconduct. It too is unprofessional conduct rather than professional misconduct.
The Board put its case of professional misconduct in terms of par (b) of the s 5 National Law definition as well as par (a). Accordingly, although I have found that, individually, each instance amounts to unprofessional conduct rather than professional misconduct, it remains necessary to consider whether the three identified conduct areas, considered together, amount to professional misconduct. Viewed together the various instances may have a greater significance and amount to conduct that is substantially below the relevant standard. The whole may be more than the sums of the parts.
Viewing the conduct together it remains the case that Dr Panegyres' behaviour should be characterised as unprofessional conduct rather than professional misconduct.
While I have identified three distinct categories of conduct those three categories of conduct are closely associated. Each is bound up with Dr Panegyres' care of KW over a discrete time period. With the exception of the Medicare Australia charges there is a correlation between the excessive servicing and the excessive charging. And the breaches of the Conduct Code are closely connected with the excessive servicing (as to the failure to consult with the Public Advocate) and the excessive charging (as to the failure to obtain the Public Trustee's consent and the financial exploitation). In those circumstances, for the reasons that each individual conduct item is not conduct that is substantially below the relevant standard, so too - considered together - the various instances of unprofessional conduct are not below the standard reasonably expected of a practitioner of an equivalent level of training or experience to Dr Panegyres.
Dr Panegyres is guilty of unprofessional conduct in respect of the three identifiable streams of conduct that have been established against him (see [373] above). He is not, however, guilty of professional misconduct.

[362]

It is necessary to consider the appropriate orders to be made under s 196(2) of the National Law in light of the findings of unprofessional conduct that have been made. The parties made detailed submissions to the Tribunal on the question of penalty.[404] Further submissions were made in this court.[405] However, those further submissions were made on the basis that each party was wholly successful in its respective case before this court.
So, for example, the Board sought a substituted penalty of cancellation of Dr Panegyres' registration as a health practitioner for a period of two years on the basis that there should be a finding of professional misconduct as Dr Panegyres had charged for services that he never provided. By contrast Dr Panegyres sought that he be reprimanded on the basis that he was guilty of a single isolated act of unprofessional conduct - and, moreover, that there was no breach of cl 3.2.6 of the Conduct Code.
Neither of those two positions have prevailed. Importantly, while Dr Panegyres' behaviour has been found to constitute unprofessional conduct, rather than professional misconduct, it is, to my mind, more than a single event.
Any sanction under s 196(2) of the National Law must be imposed by reference to, among other things, the nature and seriousness of the practitioner's conduct. The court has not had submissions from the parties as to the appropriate orders based on the findings made in these reasons. It follows that the court is not presently in a position to determine the appropriate orders under s 196(2).
The court could send the matter back to the Tribunal, differently constituted, to reconsider the question of orders under s 196(2) based on the findings made in these reasons. Alternatively, the court could hear from the parties on delivery of these reasons and then - with the benefit of the parties' submissions - proceed to make the decision that the Tribunal could have made in the proceedings. The latter is the appropriate course in terms of both bringing the matter to a conclusion as soon as practicable and the use of public resources. On delivery of reasons the parties should be heard on the question of penalty.

[365]

Since writing the foregoing I have read the joint reasons of Buss P and Murphy JA.
In the main, the joint reasons result in orders that I would also make. First, Dr Panegyres should have leave to appeal against the decisions of the Tribunal made in VR 102 of 2015 being the orders of the Tribunal made on 21 November 2017 and 16 October 2018. Second, the appeal should be allowed. Third, the finding of professional misconduct should be set aside and substituted with a finding of unprofessional conduct. Fourth, the penalty of suspension should be set aside and the parties should be heard further on the question of penalty. Fifth, the order that Dr Panegyres pay the Board's costs of the Tribunal proceedings should be set aside to the extent that it provides for quantification in the amount of $264,400. Sixth, the Board's application for leave to cross-appeal should be dismissed and the cross-appeal should be dismissed.
There are two substantive differences between the orders to give effect to the joint reasons and the orders that I would make:
1. First, the formal finding of unprofessional conduct that I would make would reflect my view that there are three distinct categories of conduct. The formal finding I would make would also reflect my view that it was unprofessional conduct to charge Medicare Australia for services for which Dr Panegyres was not entitled to charge.
2. Second, while I would send the costs quantification back to the Tribunal, I would not require that it be conducted in accordance with r 43 of the State Administrative Tribunal Rules. I would allow the Tribunal to determine how best to conduct the costs assessment.
The orders to be entered on delivery of these reasons should reflect the outcome provided for in the joint reasons. So too, in determining the appropriate orders to be made under s 196(2) of the National Law, it will be necessary to have regard to the formal finding of unprofessional conduct as proposed in the joint reasons rather than the finding that I would make.
I agree that the parties should be heard as to the costs of the appeal and the cross-appeal.

[387]

Dr Panegyres contended that the appropriate order under s 196(2) of the National Law is to order a reprimand and a fine of $10,000.
The respondent (the Board) submitted, in effect, that he should be reprimanded and pay a fine of $20,000.
The purpose of disciplinary proceedings is for the protection of the public and not for the punishment of wrongdoing. In that context, regard is ordinarily had (amongst other things) to the need to maintain the high standards and good reputation of the profession generally in the eyes of the community, the need to deter others in the profession who might similarly transgress in the future, and the need to deter the practitioner from any further departures from appropriate professional standards.[407]
The imposition of a fine may serve the object of bringing home to the practitioner the seriousness of his or her departure from professional standards.[408]
A fine may also more generally underscore, beyond a reprimand, the seriousness of the departure in the context of the need to maintain the high standards and good reputation of the profession generally.
Having considered all the submissions advanced by the parties, the following matters seem to us to be of most significance in this case.
First, there is no proper basis for the court to conclude that Dr Panegyres is presently unfit to practise.[409] That is particularly so when regard is had to the matters in [77] and [80] of the primary decision.
Secondly, Dr Panegyres has been a medical practitioner since 1981 and a specialist neurologist since 1996. He has had an impressive career and holds a number of senior positions within the medical profession. His only previous disciplinary breach involved a finding of gross carelessness in December 2001 arising from patient care for which a fine of $7,000 was imposed.
Thirdly, the events in question occurred many years ago, and there has been no suggestion of any repetition of unprofessional conduct since then. There is no proper basis to infer that there is a real risk of the repetition of such conduct in the future.
Fourthly, the unprofessional conduct of Dr Panegyres nevertheless involved a very serious lapse in proper professional standards of the kind in question. At a minimum, any orders for the protection of the public (including the maintenance of high professional standards and the good reputation of the medical profession) would involve a reprimand. In all the circumstances of this case, the imposition of a fine is also called for in light of the consideration referred to in [8] above.
The maximum fine under s 196(2)(c) of the National Law is $30,000. Bearing in mind the seriousness of the unprofessional conduct in the context of the circumstances of this case taken as a whole, in our opinion it is appropriate to order that Dr Panegyres be fined the sum of $20,000, in addition to a reprimand.
As to the costs of the primary proceedings, both parties agreed that the Board should have its costs of the primary proceedings and that the costs be assessed by a member of the Tribunal to be nominated by the President of the Tribunal.[410] That is appropriate in the circumstances.
Dr Panegyres also raised a further matter in relation to the costs of the primary proceedings. He contends that he has been out of pocket in the sum of $264,400 since 18 December 2018, and seeks an order in the following terms:

PANEGYRES -v- MEDICAL BOARD OF AUSTRALIA [2020] WASCA 58 (24 April 2020)

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