ROHATGI v MEDICAL TRIBUNAL OF NEW SOUTH WALES and

1. Short Minutes to be prepared, filed and served within twenty one days of today.

2. Claimant to have costs of proceedings in this Court to date. Further order as to costs to be made by Court considering orders to be made.

Mahoney AP In 1987 it was alleged against Dr Mahendra Singh Rohatgi that he had, in relation to a number of his surgical patients, acted in a way which, if true, involved gross professional misconduct. On 29 September 1988 the Medical Tribunal of New South Wales found the allegations to be true and ordered that his name be removed from the Register of Medical Practitioners: - Medical Practitioners Act 1938, s32R. He appealed to this Court against the Tribunal's order. On 7 August 1989, by consent, the appeal was dismissed.

Criminal proceedings were taken against Dr Rohatgi in respect of all or, on one view, substantially all, of these allegations. In June 1990, he was found not guilty of a number of the charges; in respect of several of them the jury could not agree. On 17 December 1991 the Court of Criminal Appeal upheld his appeal against the charge upon which he was convicted and directed an acquittal. In respect of the charges as to which the jury could not agree, no further proceedings were taken.

On 5 February 1993 Dr Rohatgi applied to the Tribunal to review its decision: his application was made under s32V of the 1938 Act. On 15 June 1993 the Tribunal, after hearing argument, held that, on the proper construction of the Act, it was not able to "go behind the determinations and findings of the original Medical Tribunal for the purpose of questioning their correctness". Subject to this restriction, it conducted a detailed review of his then position. On 22 June 1993 the doctor's application for review was dismissed.

The doctor did not bring any appeal against the Tribunal's dismissal of his application for review. However, on | September 1993, by summons in this Court, he sought declarations that the order of 29 September 1988 removing his

name from the register was void and that the order of the Tribunal of 22 June 1993 dismissing his application for review was also void. He sought relief by way of certiorari and mandamus. The summons contained an application in the alternative for an order extending time to appeal against the order of 29 September 1988 and an order that that appeal be allowed.

Before this Court Mr Barker QC, for Dr Rohatgi, pressed mainly the claim to relief by way of mandamus.

It is necessary to decide at the outset what are the statutory provisions governing this proceeding. The orders made in respect of the complaints against Dr Rohatgi were made under the Medical Practitioners Act 1938: see, eg, s32R, s32T. The application made to the Tribunal for review of the orders made against him was made under s32V of that Act. That section provided that a person who is suspended or whose name has been removed from the register "may apply to the Tribunal for a review of the suspension or removal". As I have indicated, the application for review was disposed of by the Tribunal finally on 22 June 1993.

By the Medical Practice Act 1992 s195, the Medical Practitioners Act 1938 and various amending Acts were repealed. By a proclamation, the Act (excluding s6 which is not here relevant) commenced on | July 1993. That Act contained savings and transitional provisions. The two provisions which are claimed to be here relevant are contained in Schedule 5, CL11 and CL13. CL11 and CL13 provide:

"11. (1) The provisions of the 1938 Act continue to apply to and in respect of a complaint made, or an inquiry or appeal commenced, under that Act and pending immediately before the repeal of that Act. (2) Any order, decision or determination resulting from an inquiry or appeal to which this clause applies is taken to have been made under the corresponding provisions of this Act and is to have effect accordingly.

13. (1) An order ("the original order") having effect under the 1938 Act immediately before the repeal of that Act is by this clause converted to the equivalent order under this Act and is taken to have been made under this Act. This includes an order by which a person's name was required to be removed from the Register under the 1938 Act.

(2) If the original order fixed a time after which a person may apply to be registered, the order is instead taken to provide that an application for review of the order by which the person's name was removed from the Register may not be made until after the time so fixed.

The new Act contains provisions for review of orders previously made. They are somewhat different from those contained in s32V of the 1938 Act. S92(1) provides that a person may apply "to the appropriate review body for a review of an order of... the Tribunal or the Supreme Court... (b) that the person's name be removed from the Register...". The "appropriate review body" is, in this case, the Tribunal.

"94. (1) The appropriate review body is to conduct an inquiry into an application for review and may then do any of the following:

(b) by its order terminate or shorten the period of the suspension concerned;

UWROHATGI v MEDICAL TRIBUNAL OF NEW SOUTH WALES and ANOR (Mahoney APB

(d) make an order altering the conditions to which the person's registration is subject (including by imposing new conditions).

(2) A "reinstatement order" is an order that the person be registered subject to the same conditions and limitations (if any) to which the person's registration was subject immediately before the person ceased to be registered. The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order.

(3) The Board is to cause such recordings to be made in the Register as may be necessary to give effect to a reinstatement order.

(4) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time."

In my opinion, by virtue of Schedule 5 CL13(1) the order of 29 September 1988 removing Dr Rohatgi's name from the register is converted into the equivalent order under the 1992 Act and is taken to have been made under that Act. However, the application for review which the doctor made in 1993 was completed before the commencement of the 1992 Act. That proceeding was accordingly not pending immediately before the repeal of the 1938 Act. The dismissal of the application is, by virtue of CL13, converted to the equivalent order under the 1992 Act and is to be taken to have been made under it. While the mechanism of the procedures to be followed consequent upon the amendment and the transitional provisions is not spelled out in detail, the statutory intention was, I believe, that the validity or regularity of the order made under s32V of the 1938 Act is to be judged according to the then existing terms of that Act. If mandamus be granted in respect of that order, then the application for a review which the doctor made must be reheard. That application involved that the Tribunal would make "such inquiry as it thinks fit": s32V(4). Accordingly, there would have been, within Schedule 5 CL11, "an inquiry... commenced under that Act" (ie, the 1938 Act) "and pending immediately before the repeal of that Act". Therefore the 1938 Act would continue to apply to that application for review and the inquiry to be made pursuant to it. If CL13 converts the order of 22 June 1993 dismissing the application for review, into the equivalent order under the 1992 Act (a matter on which I express no opinion), that does not mean that the validity or regularity of what was done in respect of that application is to be judged according to the terms of the 1992 Act. Such things remain to be judged according to the terms of the 1938 Act by which they were then governed. In practical terms, I doubt that much turns upon whether the matter is to be judged according to the new or the old Act. But I shall assume that the old Act applies.

Mr Barker QC, for Dr Rohatgi, called into question both the order of 29 September 1988 (the removal order) and the order of 22 June 1993 (the review order). In respect of the removal order the claims, as pressed, were I think essentially two: that the order was null and void and should be quashed by an order in the nature of certiorari; and that the dismissal of the appeal from that order should be set aside, an appeal entertained, and the order reversed.

In respect of the review order the attacks made were essentially two:

that the Tribunal had constructively failed to exercise the power conferred by s32V and/or s92 to s94; and that the order made on 22 June 1993 contained on the face of it an error of law warranting that it be set aside and quashed as on certiorari.

During argument, other possible attacks upon the proceedings taken against Dr Rohatgi from time to time were adverted to but, as I understand the arguments ultimately pressed, they were directed essentially to the matters to which I have referred.

In order to understand the submissions made for Dr Rohatgi in this regard, it is necessary to refer to the facts. The facts placed before this Court are contained in or referred to in several affidavits tendered in support of the summons. The material contains many hundreds of pages, relating to the original proceedings before the Tribunal in 1988, the criminal proceedings to which I have referred, the proceedings in the Court of Criminal Appeal, and the proceedings before the Tribunal in 1993. The Court has been taken to the parts of this material which counsel have considered relevant and I shall, in the main, refer to those parts. In view of the submissions it is not necessary to detail the facts: it will be sufficient to summarise the relevant portions of them.

A complaint was made against Dr Rohatgi by a delegate of the Department of Health and that complaint was considered by the Medical Tribunal in May 1988. It contained thirteen particulars. The complaint alleged a number of matters each of considerable seriousness. It alleged that in respect of twelve patients the doctor purported to carry out a surgical procedure for the depression of the endolymphatic sac whereas no operation was performed (Particulars 1 and 2); that on twelve occasions he carried out a surgical procedure on a patient to graft the tympanic membrane on the right side under general anaesthetic without reasonable cause (Particulars 3 - 5); that on two occasions he claimed to have carried out a right tympano mastoidectomy which he did not carry out (Particular 6); that he carried out a Caldwell Luc's procedure on a patient's right antrum and by gross negligence operated on the wrong side, carried out the procedure without consent, and advised the patient that surgery on the right side had been required when he knew or ought to have known that it had not (Particulars 7 - 9); and that he had admitted a patient to hospital for surgery on her right ear but negligently operated on the left ear (Particular 13). (Particulars 10 - 12 were not proved to the satisfaction of the Tribunal and therefore may be put aside).

Each of the thirteen Particulars (excluding Particulars 10 - 12) was held by the Tribunal to have been proved. It was on the basis of the proved complaints that the removal order was made.

In 1990, he was tried upon some nineteen charges based upon the relevant allegations in the complaint. It is not necessary to pursue the precise detail of the charges and how they arose from the matters alleged in the complaint. It is sufficient to conclude that, in general terms, the charges required examination of some or all of the facts upon which the various allegations had been made. In respect of some of the charges, the doctor was found not guilty. In respect of others, the jury could not agree. In respect of one, he was convicted.

On 17 December 1991 the Court of Criminal Appeal upheld his appeal against that conviction. Reliance was placed upon the reasons given by that Court in upholding the appeal and I shall refer subsequently to the relevant aspects of those reasons. However, it was contended for the doctor that what had happened in relation to the charges was inconsistent with the continued acceptance of the findings of fact made by the Tribunal upon the complaints. The suggestion was that, either in terms or viewed as a matter of substance, the findings of fact in respect of the criminal charges were inconsistent with the findings of fact on which the Tribunal acted to remove the doctor's name from the register. This

UWROHATGI v MEDICAL TRIBUNAL OF NEW SOUTH WALES and ANOR (Mahoney APB

suggestion was contested by Mr Sexton for the second opponent. Upon the basis of these contentions, I shall consider the submissions made in respect of the removal order.

Mr Barker QC submitted, I think faintly, that the removal order was null and void or was to be quashed as on certiorari. The basis for this submission was that the findings on which the Tribunal based the removal order were such that no reasonable person could make them, that this sufficiently appeared upon the record, that certiorari was available to quash the order, and that accordingly it should be quashed. Mr Barker's contention was, I think, that the evidence as it was before the Tribunal was of this kind and that, having regard to what appeared in or resulted from the criminal proceedings, it now is shown to be such.

In my opinion, these submissions should not be accepted. Certiorari may go for various reasons: these include absence of jurisdiction, denial of the appropriate procedural fairness and error of law. It is the last of these which is here in question. But it is not every error of law in a proceeding before a tribunal of the present kind which warrants certiorari. In general, it will go only where the suggested error appears on the face of the record of the Tribunal and the error is of a relevant kind.

This Court has considered what for this purpose constitutes the record of a tribunal:

see GJ Coles and Co Pty Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 515; Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368 at 377 et seq; The Commissioner of Police v The District Court of New South Wales and Anor (Court of Appeal, 2 September 1993, unreported); and what constitutes an error of law which is sufficiently relevant to the order made in the particular case as to warrant certiorari. See Commissioner for Motor Transport v Kirkpatrick at 372 et seq; The Commissioner of Police v District Court of New South Wales and Anor (Court of Appeal, 2 September 1993, unreported). In Commissioner of Police v District Court of New South Wales and Anor I said:

"The 19th century legislation dealt essentially with justices and it prescribed the form of the record which the justices could and should forward to the superior court. But there has, in general, been no similar prescription for, for example, inferior tribunals as such. At least, none has been suggested for this State. If what has happened be examined objectively, it appears that, to an extent, inferior tribunals have modelled their 'record' upon what has been provided for justices essentially in criminal or analogous proceedings and have sent to the superior courts a 'non speaking record'. But there has, I think, been no definitive determination by a court of final resort as to the principles upon which a record of such tribunals is to be constructed. At least, none has been referred to the court in this application. The result has been that the courts have, pragmatically and without reference to any general principle, determined in individual cases what the record is to be seen as comprising. This has occurred in this State: see generally Glenvill Homes Pty Ltd v Buildings Licensing Board (1981) 2 NSWLR 608; Adams v Kennick Trading (International) Ltd and Ors (1986) 4 NSWLR 503; GJ Coles and Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503; Coles v Burke (1987) 10 NSWLR 429; Commissioner of Motor Transport v Kirkpatrick (1987) 11 NSWLR 427; and Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368. The result of this process has been, in my opinion, that this Court has decided that the record of the District

Court includes the pleadings, the judgment and the reasons for decision in the instant case; the transcript of evidence has not, I think, been held to be part of that record. In relation to the inferior court or tribunal considered in the Kirkpatrick cases, my own conclusion was that the record of the body there in question comprised documents of the same kind. In the High Court, there has, I think, been no finally definitive consideration of the matter: see generally R v District Court of the Queensland Northern District: Ex parte Thompson (1968) 118 CLR 488 at 494; R v Cook: Ex parte Twigg (1980) 147 CLR 15 at 26; Hockey v Yelland (1984) 157 CLR 124 at 142 and 143; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667." It is sufficient for present purposes to say that although this Court has held the record of particular tribunals to include the reasons for judgment given for its order it has not accepted, or accepted definitively, that the record includes the whole of the evidence placed before the Tribunal. A fortiori, the record does not, of course, include material which did not exist at the time when the order was made.

The Court has not yet defined fully the nature of an error of law which, appearing on the record, will attract certiorari. I have elsewhere suggested that incidental errors, eg, in relation to procedural matters, the admission of evidence or the like, will not ground certiorari:

see The Commissioner of Police v The District Court of New South Wales and Anor; Director General of Attorney General's Department v District Court of New South Wales and Stark (Court of Appeal, 21 July 1993, unreported). I remain of that view.

The error here suggested is that the evidence could not in law justify the findings made. It is not necessary for present purposes to determine whether an error of this kind, however formulated, sufficiently attracts certiorari. I shall assume that it does. But at the time the order was made, the evidence before the Tribunal was such that it was clearly open to the Tribunal to find as it did. Mr Barker QC contended (I put his argument in terms necessarily very general) that before the Tribunal the evidence of the doctor, of other doctors and nurses present on the occasion of the surgical procedures, and of an expert witness Dr Williams, rebutted the allegations made against him. It was contended that the evidence against him was essentially of an expert character directed to showing that, having regard to radiological and other diagnostic procedures, the operations could not have been done properly, prudently, or as the doctor said they were. It was said that, for example, the evidence against him depended upon inferences drawn from diagnostic records of this kind; that those inferences depended upon the assumption that, between the time of the surgical procedures and the time when the diagnostic documents were examined, there could not have been such a change in the patient, eg, by way of bone regeneration, as would falsify such inferences; and that that assumption was not justified. This was generally the kind of case advanced for him in the criminal proceedings.

If the contention be that the evidence before the Tribunal was such that the Tribunal could not have come to the conclusions it did, I doubt that that contention has been made out. This Court has not been taken to the detail of the evidence given before the Tribunal on the removal proceedings. The reasons given by the Tribunal, some twenty six pages in length, summarise the case made for and against Dr Rohatgi. The Tribunal said:

"Tn support of this complaint evidence was led from Professor Doust who is Director of Radiology at St Vincent's Hospital and Associate Professor of Radiology at the University of New South Wales; a distinguished Otologist, Dr

UWROHATGI v MEDICAL TRIBUNAL OF NEW SOUTH WALES and ANOR (Mahoney APY

Paul Fagan, a distinguished Ear, Nose and Throat Surgeon, Dr Andrew Ferguson and a most distinguished academic and practitioner in Otology and Ear, Nose and Throat surgery generally, Professor William Gibson. Each of these gentlemen was asked generally whether he had seen C>T> scans relating to each of the 12 patients. Each had and each was of the view that the images were of such a quality as to enable him to give a categorical opinion as to whether or not surgery had taken place. Each was firmly of the opinion that in none of the patients had there ever been any operation which would have had the effect of decompressing the endolymphatic sac. Each of them was taken through the images relating to a number of individual patients and reference will be made to this evidence in due course. Each of them was asked by counsel for the Respondent whether it might not be that during the interval between surgery - or alleged surgery - and the time of the taking of the C>T >scans, the temporal bone may have re grown to such an extent as to render the traces of the operation unobservable. Each denied this proposition."

Having referred to the evidence of the expert witnesses, the Tribunal said:

"In addition to this theoretical evidence, there was evidence from two Theatre Sisters who had observed the Respondent's method of operating. Their evidence was somewhat imprecise, but it supported the view that he ordinarily removed a small piece of bone by hammer and gouge and then drilled for a short distance. The observations of Sister Williams were that the drilling was never more than about half an inch in depth whereas the Complainant's experts insist that it would be necessary to drill at least twice that distance before any approach could be made to the endolymphatic sac. Sister Blair was not able to assess the depth of the drilling. Both these witnesses denied the suggestion put to them in cross examination that either the pieces of bone removed by chiselling or the powder resulting from drilling were preserved for later use.

This evidence is, of course, adverse to the Respondent but it could hardly be conclusive in the absence of eye witness evidence showing that he lacked those exceptional gifts. There is also the evidence of Sister Williams and Sister Blair which tends to support the view that he could not have completed the operation in the available time. However even this accumulation of evidence would, without the radiological evidence, be insufficient to satisfy us to the requisite degree. We feel that the two Sisters may perhaps have developed some of their wisdom after the event. It will be seen therefore that the radiological evidence is absolutely crucial. It will be necessary to consider and to compare and contrast the evidence called for the Complainant with that called for the Respondent - including, of course the evidence of the Respondent himself.

We realise that the Complainant's evidence is largely circumstantial and we are therefore alert to any reasonable contrary thesis. None of these patients gave evidence.

If the Respondent's descriptions of the operations are substantially correct then this part of the complaint is not made out. We were not convinced by his account and if his evidence stood alone we would have little hesitation in rejecting it in favour of the opinions of the Complainant's expert witnesses. In these circumstances the evidence of the Respondent's witnesses takes on critical importance."

The Tribunal concluded that Dr Biswas "adds little on the crucial issues". It said:

"Dr Biswas adds little on the crucial issues. He does corroborate the Respondent on two matters where his evidence is contradicted by the evidence of the two nursing sisters. He confirms that there were routine changes of drill head and that there were on at least some occasions replacements of bone fragments into the wound. Dr Biswas was not shown to be an untruthful or biased witness and we are unable to find with the requisite degree of satisfaction that the denials by Sisters Williams and Blair are made out."

Dr Williams, called for the applicant, was "an impressive witness whose evidence demands close scrutiny". The Tribunal said:

"He began by criticising the CT scans on which the Complainant's case rested. He went through all of them and criticised the absence of bilateral views, the slice intervals and the window settings as well as pointing to the time that had elapsed between surgery and radiology. In general terms, he claimed that the quality of the scans was inadequate to permit disproof of the Respondent's claim, while there was, he said, some evidence suggestive of surgery which may have reached the area of the endolymphatic sac.

If his criticism was well founded then the basis of the opinions of Professors Gibson and Doust and Dr Fagan is destroyed and the Complainant fails (except in the case of Nellie Harris, as to which see at 12 and 13 infra).

A considerable amount of cross examination of the Complainant's witnesses and a small amount of evidence in the Respondent's case were directed to the question of bone regeneration. It is clear that such regeneration does take place, especially in younger people. We accept that there was in each case some cortical penetration by Dr Rohatgi and that regeneration has taken place rendering the site less obvious than it would have been shortly after the operation. We are also satisfied (see Professor Gibson at 146 to 149) that the trabecular architecture of the mastoid cannot reproduce its pristine form, any bony regrowth in that area being of a quite distinct nature which would not deceive a Radiologist. We were not impressed by Dr Williams comparison of the mastoid trabecular with nasal cartilage or with the suggestion that after displacement the septa might 'swing back into position' (at 451).

So far as Nellie Harris is concerned the temporal bones put the matter beyond any doubt. No argument has been addressed to us on this score nor has any explanation been offered in evidence. To conclude, we are all satisfied notwithstanding the gravity of the charges, that the scans are adequate for the purpose for which they were produced; that they show no evidence of completed endolymphatic sac decompression operations and that if such surgery had been carried out there would have been evidence of it in every case. We do not accept Dr Williams' criticisms of the scans as sufficient to justify us rejecting or doubting the evidence of Professor Gibson and Professor Doust."

The Tribunal proceeded to deal with the individual particulars of the complaints in detail. In important respects, it "totally dishonoured" the applicant's evidence. The Tribunal said:

"This case has caused us considerable soul searching. On the one hand we are conscious of the duty that we have to the community and to the Medical Profession, to exclude from the latter any medical practitioners that threaten harm to the former. At the same time, there is an even greater social interest in insuring that the Respondent receives justice and is not found guilty unless we are satisfied to the requisite degree. We have been very conscious of the absence of direct evidence and the extent of our dependence upon opinion evidence.

UWROHATGI v MEDICAL TRIBUNAL OF NEW SOUTH WALES and ANOR (Mahoney AP®

The Respondent feels besieged and set upon from all sides. He believes, he says, that he is the victim of a conspiracy. He is a long term resident of this country but English is not his first language and he commits solecisms and sometimes uses phrases which are inappropriate and may unfairly disadvantage him. We see some genuinely felt basis for his sense of persecution. We feel that there may have been something of a closing of the ranks against him in the area where he practices. The big question mark relates to the timing of and the reason for any perceived hostility. Is it the cause or the result of the allegations that he now faces? We are unable to accept that there is any kind of conspiracy. No argument was addressed to us on this issue nor was any witness cross examined to suggest it. There may for all we know have been malice on the part of some informant but no improper motive was suggested to any of the witnesses. We do not see the principal witnesses for the Complainant as being other than learned, totally objective observers, whose integrity is unchallenged. We have had to face up to the question: is Dr Rohatgi more sinned against than sinning or is he a humbug, caught out in his malpractice and grasping at any straw to justify himself? With great respect for the witnesses called in his defence and fully conscious of the seriousness of this finding, we are of the view that he has been guilty of deception and that when confronted with instances of his ineptitude he has resorted to further deception in order to soften the inevitable blow." I see nothing in the reasons of the Tribunal which would justify certiorari.

I come now to the question whether, in the light of what happened in the criminal proceedings, certiorari should go in respect of the removal order.

The Court has not been referred to any case in which evidence found or coming into existence after the making of an order has been relied upon as demonstrating that the order should be set aside as on certiorari. I do not wish to preclude the possibility of such a case. In my opinion, in the present case the evidence was not of this character. The Court in the criminal proceedings found favourably to Dr Rohatgi probably because it preferred the evidence called by him to the expert evidence called against him, because it did not accept the inferences to be drawn from the radiological and other diagnostic materials relied on against him, or because it accepted the possibility that the inferences suggested against him could be explained by, eg, bone regeneration. However this be, I do not see in these matters or generally in what has been put grounds for concluding that on the whole of the material a tribunal of fact could not find the complaints established. It may or may not be that the probabilities lay, or lay heavily, in the doctor's favour. That is not sufficient. The submission, if it be valid, must involve that to find against the doctor was so wrong as to involve an error of law. In my opinion, the evidence does not establish that.

It was submitted that, although Dr Rohatgi's appeal against the removal order was, on 7 August 1989, dismissed by consent, he should now be allowed to appeal against that order and for this purpose the time for appealing should be extended. I do not think that these submissions should be accepted. The appeal sought to be brought is, to adapt the language elsewhere used, an appeal against conviction not against severity of sentence: see s32R, s32U. It is therefore relevant to consider whether an appeal of that kind could succeed. An appeal lay against such a decision of the Tribunal only "with respect to a point of law": s32U(1). The only point of law suggested is that to which I have referred, viz,

that the Tribunal could not reasonably find as it did. Considered in the light of the evidence before the Tribunal, there would, in my opinion, be no prospect of such an appeal succeeding.

In addition, I am not satisfied that a sufficient reason has been advanced for allowing such an appeal notwithstanding the dismissal by consent of the previous appeal. Dr Rohatgi gave his reason for the dismissal of the appeal against the removal order in the following terms: "At the time I gave instructions to consent to the dismissal of the appeal it was my understanding that successfully defending the criminal charges was the highest priority as a conviction of itself would be a ground for striking off. It was my understanding that when the criminal proceedings were finished I could move to reverse the order that my name be struck off the register. I did not understand that by consenting to my appeal being dismissed I would lose my right to again bring an appeal after the criminal proceedings were disposed of."

As I indicated during argument, prima facie I find that reason difficult to accept: I find difficulty in accepting that Dr Rohatgi's understanding was as he there stated. There was no reason suggested why, during the pendency of the criminal proceedings, the appeal against the removal order could not have been adjourned. That would have been the obvious course and I see no reason why this Court would not have permitted it to be followed. Dr Rohatgi does not say that he was advised that the position was as now he states it to be. It seems unlikely he would have been so advised.

However, his evidence has been admitted without objection and there has been no cross examination of him. As Mr Barker QC pointed out, this evidence therefore stands unchallenged. In the circumstances, I shall without so deciding assume that his reason for having the appeal dismissed was as he there said.

I do not exclude the possibility that subsequently discovered facts may warrant this Court extending the time for appeal against the removal order notwithstanding that a long time has passed. The circumstances would necessarily be of an unusual or perhaps extraordinary kind. Particularly is this so because the relevant appeal under s32U of the 1938 Act was only "with respect to a point of law": see now s90(1) of the Medical Practice Act 1992.

In the present case, Dr Rohatgi's difficulties are compounded. He must first obtain the setting aside of the dismissal of the appeal and then the extension of time for the bringing of another appeal or, possibly, the renewal of the appeal previously dismissed. An appeal dismissed by consent may, in an appropriate case, be set aside and the appeal reinstated: see the cases referred to in Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528; Halsbury. Laws of England (4th ed) Vol 37 para390. See also Supreme Court Rules Pt40 R9. But it is necessary that appropriate grounds be shown. In the present case, what is suggested is, at best, a unilateral mistake on the part of the doctor, based not upon erroneous advice but upon his own inference, and without the suggestion of any reason why the mistake was made. I do not see in the present case a ground warranting the setting aside of the dismissal of the appeal and the reinstatement of it. Even if what occurred in the criminal proceedings be accepted to be generally what is contended for by Dr Rohatgi, I do not think that that provides the basis for setting aside the order that was made.

In addition, such an order would be made only if there were an appropriate prospect of the appeal being successful: it would not be done if it were plain that the order would serve no purpose. That is, in my opinion, the present case.

UWROHATGI v MEDICAL TRIBUNAL OF NEW SOUTH WALES and ANOR (Mahoney AR)I

For these reasons I do not accept that relief against the removal order should be given.

The main submission for Dr Rohatgi was that if an application be made to the Tribunal for a review of a removal order, the Tribunal has a statutory duty to "review" the order. If it fails or refuses to perform that duty, mandamus will go to compel it to do so. There may be a failure or refusal to perform a statutory duty if, notwithstanding the purported performance of it, the Tribunal has so misdirected itself that that which it has done is not in law a performance of that duty. There may, in this sense, be a constructive failure to perform the duty: see Ex Parte Hebburn Ltd: Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420; Wentworth v Rogers and Anor [1984] 2 NSWLR 422 at 433 and 434 and the cases there referred to. It is not every error, or error of law, which will involve in this sense a constructive failure to perform the duty. The duty is, in this sense, performed even if it be so performed as to involve an error of law or an error of fact. But, where the error goes to the nature of what is to be done, there will ordinarily be a failure to perform the duty. See Re Media Entertainment and Arts Alliance of Theatre Managers' Association; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 190; Glenvill Homes Pty Ltd v Builders Licensing Board [1981] 2 NSWLR 608 at 614 et seq.

In the present case, the submission was to the effect that what the Tribunal did did not constitute "a review of the... removal" within the terms of s32V(1). The error identified was that the Tribunal held that it did not have "jurisdiction to review the correctness of the determinations on the complaints and findings of fact made by the original Medical Tribunal". It ruled that: "The findings of that initial Tribunal have to be accepted and the Tribunal should not go behind them nor should an applicant seek to discredit them". In its decision of 22 June 1993 the Tribunal reiterated "... that it was not empowered to go behind the determinations for the purpose of questioning their correctness". Accordingly "the Tribunal ruled that it would not admit into evidence pre removal material and post removal material in the applicant's case for the purpose of demonstrating error by the Medical Tribunal which inquired into the Complaints". The Tribunal dealt with the application for review on that basis. It saw its task as "to inquire into the present fitness of the applicant to practice medicine in the light of the determination of the Medical Tribunal and its findings of professional misconduct which resulted in the order removing the applicant's name from the register and to review the conduct of the applicant from that time to the present...". It held that "the proved misconduct demonstrated a serious departure from acceptable standards of practice... aggravated by the practitioner's untrue explanations for his treatment...". On this basis it saw the doctor as having "the onus of satisfying the Tribunal of his present fitness competency and good character to be admitted to practice as a registered medical practitioner".

Dr Rohatgi declined to give evidence to support his application or to establish "his present fitness competency and good character". He did this because, as the Tribunal said, he "does not accept that he has been guilty of professional misconduct". On this basis, "there is in his view no requirement for rehabilitation".

The Tribunal further noted that Dr Rohatgi had tendered a medical research article. By his counsel, he indicated the basis on which, he contended, the article supported his application. For the reasons adverted to by the Tribunal, it said:

"This line of argument ignores the potential complications of major ear surgery under general anaesthetic, and resultant pain, discomfort and anxiety suffered by a patient undergoing invasive surgical procedures. The applicant's reliance on this article and the rationale advanced by him through his counsel causes the Tribunal to question the judgment and insight of the applicant in the context of fitness to practice medicine. The evidence adduced by the applicant in support of his application for re admission to the profession is accordingly limited to the grounds set out in his written application as developed by counsel in his submissions and documents admitted as exhibits."

The Tribunal concluded that the applicant had not discharged the onus of satisfying it of his present fitness, competency and good character. Accordingly it dismissed the application.

The Tribunal followed a previous decision or decisions of the Tribunal in limiting the extent to which it brought in question the removal order. During the course of the review proceeding, reference was made by the Tribunal to the possibility of the testing of the correctness in law of the Tribunal's view of its function and of the ambit of "the review". No appeal was brought against its decision. It has not been argued that the appeal provisions do not apply to an order made on an application for review.

Mr Barker's submissions in this regard raise, inter alia, two questions: whether the Tribunal erred in law in the view it took of its powers; and (if it did) whether relief by way of mandamus should be granted.

The construction of s32V and of the corresponding provisions in the 1992 Act (s92 and s94) is not without difficulty. There is, in my respectful opinion, some practical utility in the view taken in this regard by his Honour Judge Wall QC and the members of the Tribunal. However, on reflection I am of opinion that their view as to what may be done in relation to the removal proceeding and the order made upon it was unduly narrow and that what they did was not, in the relevant sense "a review of the... removal" within s32V.

In considering the meaning of "review" it is of assistance to follow the procedure suggested by Lord Coke and now adapted as the purposive mode of construction: see Metal Manufacturers Pty Ltd v Lewis (1988) 13 NSWLR 315 at 325 and 326. This procedure involves: determining the problems which the statute sought to solve: identifying the remedy which it chose for solving them; and determining how the remedy was applied in the solution of them.

The provisions, s32V and s90 to s92, are concerned with problems which arise after the making of an order for, as in this case, removal of the name of a medical practitioner from the roll. In the main these problems are apt to be of two kinds: there may be a need to end or vary the effect of the removal because of events which have happened after the order was made; and injustice may exist because, to take one example, the findings of fact on which the order was based are subsequently seen to have been wrong. In either of these cases, there may be an injustice if the order cannot be (I shall use a neutral term) reconsidered.

The remedy provided for dealing with these problems is, of course, "review" by the Tribunal. It is contemplated that, by such a review, the relevant problems will be solved. But it is the extent of the remedy provided which is the difficulty in the present case. Two questions arise: does the remedy apply to both of these problems; and (if it does) how far does it go, ie, what does "review" authorise the Tribunal to do to remedy the injustices.

UWROHATGI v MEDICAL TRIBUNAL OF NEW SOUTH WALES and ANOR (Mahoney ARB

The remedy is, of course, intended to apply to (as I shall describe them) "post order events". The issue here in question is whether it applies to "pre order errors". To a person unfamiliar with the law and how it must operate, it might appear obvious that it should apply to both. If a medical practitioner's name has been removed on the ground that he has assaulted a patient and the patient later

confesses that he did not do so, the operation of the legislation would plainly be defective if the effects of the removal were not reviewed. But those familiar with the way in which litigants act will see the danger that, in some cases, the power to review what has been decided and has been ordered may cause more injustice than it avoids. In relation to findings and orders of courts, the law has, in general, adopted the principle that findings of fact and orders made cannot subsequently be called in question. This is embodied in or articulated in principles and sayings such as res judicata, interest reipublicae ul sit finis litium, nemo debet bis vexari pro eadem causa and the like: see, eg, Jackson v Goldsmith (1958) 81 CLR 446 at 466; Carl Zeiss Stiftung v Rayner and Keeler Ltd (1966) 2 All ER 536 at 564 and 565. The rights on which a party relies to bring proceedings in a court are brought to an end: they "merge" in the judgment which has been given in reliance upon them: see Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38 and 39; 45 and 46; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 507 and 508; Boles and Ors v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 at 669.

This attitude of the law is based upon sad experience. If allowed to do so, litigants and their lawyers may contest and recontest what has been decided. The effects of repeated litigation are plain: they can destroy those involved, personally and financially. The law has therefore struck a balance. It recognises the possibility of error and accordingly of injustice. But it sees greater good, to the community and, I think, often to the individual parties, in bringing litigation to an end. And it accepts the possibility of an individual injustice in such a balance.

There are, of course, safeguards against error in judicial decision and what may flow from it. Decisions of courts are always - or should always be - subject to appeal. Ideally in all cases - and in practice in most of them - the findings and orders of a court at first instance are reviewable on appeal. Appeals now ordinarily involve at least one review of factual findings: see, eg, the Supreme Court Act 1970, s75A (appeal to the Court of Appeal by way of rehearing). On such an appeal the court may, subject to recognition of the advantages of the trial judge: Abalos v Australian Postal Commission (1990) 171 CLR 167; Louth v Diprose (1992) 175 CLR 621; reconsider and redetermine the findings of fact made. The present problem is, of course, different. It concerns errors of fact which cannot be or have not been corrected on appeal. In some circumstances, decisions so made may be set aside, eg, in some cases of mutual mistake, fraud or the like: see generally McDonald v McDonald (1965) 113 CLR 529; Halsbury, Laws of England (4th ed) Vol 26, pars 557, 560. But special cases apart, the findings and orders of courts remain effective notwithstanding that it subsequently appears that errors of fact have been made. In certain statutes, provision has been made for a more extensive review of judicial decisions. Thus, in the Landlord and Tenant (Amendment) Act 1948, provision was made for a review de novo of orders made in respect of the possession of premises: see 71; Burling v Chas Steele and Co Pty Ltd (1948) 76 CLR 485; Hilliger v Hilliger 52 SR (NSW) 105. Similar review was possible under the Workers Compensation

Act 1926, s60 and s61; see now Workers Compensation Act 1987 s55. The problem in the present case is pointed because the legislative purpose is, in my opinion, to confine to the Tribunal or bodies leading to it, the determination of issues of fact relating to medical malpractice. The appeal from the Tribunal is to this Court alone and it is an appeal only "with respect to a point of law": s32U of the 1938 Act; s90(1) of the 1992 Act. (I put aside "penalty" appeals: s32U(1)(b)).

But these principles do not apply or do not apply with the same rigour to findings and orders of bodies which are not courts. The Medical Tribunal is, in this sense, not a court. It is, in concept, an administrative body which makes findings of fact and on the basis of those findings it does administrative acts. It finds the facts relevant to whether a medical practitioner has been guilty of professional misconduct and it then does administrative acts which have consequences to that medical practitioner. Thus, the Act allows the Tribunal to make an "order": see 1938 Act, s32R; 1992 Act s64; that the name of the medical practitioner be removed from the register, and that results in a statutory proscription against his practising. In doing what it does, it is required to act, to the extent provided by the statute, in a quasi judicial way. But it remains administrative in the sense that, for example, the rights and duties underlying its actions do not, as such, merge in its order. If a medical practitioner has a right under the statute to have the findings and orders reviewed and that review is not carried out, that right is not extinguished, as on res judicata, by the order of the Tribunal purporting to be a review. The right of the medical practitioner technically remains in existence and may be enforced if appropriate means are available for its enforcement.

said is, of course, subject to qualification. In analysing the nature of the proceedings of the Medical Tribunal in this way I have not attempted a definitive statement of the difference between the findings and orders of courts and the findings and orders of an administrative body. It is sufficient to note that there are significant differences between them and that those differences are relevant in deciding whether the findings and orders of a body such as the Medical Tribunal should be presumed to be open to reconsideration and to what extent. The position is further complicated because, under the legislation, there is an appeal with respect to a matter of law to this Court and this Court may, in disposing of the matter before it, itself make orders. Considerations such as these make it, I think, impossible to draw inferences as to what are the powers in a particular case from the general nature of proceedings before the Tribunal.

I come therefore to consider whether the form of reconsideration authorised by the legislation in this case includes reconsideration of the findings of fact originally made. As I have said, that which is authorised by the legislation is a "review".

The word "review" is a word which, in my opinion, does not have an ordinary meaning which is fixed. The content of it, in the sense of what it requires to be done, will vary with the context in which the term is used. It may require only an examination of what has been done, to ascertain whether, on the face of it, the Tribunal concerned has done what it was required to do: compare generally Coalcliff Collieries Ltd vy Campbell (1964) 38 ALJR 180. The term may, at the other extreme, involve a de novo examination of the material on which the original order was made, the testing of the process by which the decision was reached, and an assessment of the correctness of that decision: see, eg, Appliance Holdings Pty Ltd v Lawson (1983) 1 NSWLR 246 at 249. And it may, I think,

UWROHATGI v MEDICAL TRIBUNAL OF NEW SOUTH WALES and ANOR (Mahoney ARB

involve an examination of what has taken place which is between these two extremes: see Smith v New South Wales Bar Association (1992) 176 CLR 256 at 264 and 265; Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 586. It is necessary to examine the context of the present provisions in order to determine what in this case the duty to review the removal decision required.

The 1938 legislation did not, in terms, spell out the extent of the reconsideration which is authorised by it. It leaves this to be determined by reference to the mischief, the remedy and the extent of the remedy in the sense to which I have referred. But, I think, it contains some indication of a legislative intention that in some circumstances the correctness of the previous findings of fact may be examined. S32 V(4) provides that on such a review, the Tribunal may "after such inquiry as it thinks fit" order "that a person whose name has been removed from the Register be registered under the provision of this Act under which the person was registered immediately before the person ceased to be registered or under any equivalent provision of this Act". S32V(5) provides that a person registered pursuant to an order under that provision "shall (except for the purposes of s23C) be deemed to be registered pursuant to a determination made by the Board under s21(1)(a)". This indicates, at least to an extent, the intention that the doctor whose removal is reviewed is to be put in a position to an extent equivalent to that which he held before the removal.

Such a reversion to the position before the removal would of course be appropriate in the case of a review based on post order events if, eg, they show that the order should never have been made. Medical advances may so indicate. But these provisions of s32V are general and therefore would apply to pre order errors if, within the terms of the statutory "review" pre order errors may justify reconsideration of what was done and the order for removal made.

The concept of "reinstatement" to which I have referred is made more explicit by the 1992 Act. S94 provides that, on a review, the appropriate body "is to conduct an inquiry... and may then do any of the following... (c) make a reinstatement order...". See s94(1). S94(2) defines a "reinstatement order" as "an order that the person be registered subject to the same conditions and limitations (if any) to which the person's registration was subject immediately before the person ceased to be registered....". The Board is to "cause such recordings to be made in the Register as may be necessary to give effect to a reinstatement order'. S94 also provides against the possibility that, by way of a "review", a disappointed medical practitioner may seek successive reconsiderations of the Tribunal's findings and orders, not by reason of post-order events, but because of his contention that the original findings or orders were themselves incorrect. S94(4) provides that an order made on review "may also provide that the order is not to be reviewed under this Division until after a specified time".

None of these considerations are determinative of the nature of the reconsideration which "review" authorises. However, the terms of the legislation do not confine, by their terms, such a reconsideration to post order events. Injustices may occur if pre order errors may not be taken into account in such a reconsideration. In my opinion, the legislation, on its proper construction, authorises the reconsideration of the original findings and orders made, to the extent to which I shall refer. The legislature was no doubt conscious, as I am, of the possibility of continuing litigation. A medical practitioner faced with a finding of, eg, sexual assault by him upon a patient, may understandably desire to contest it in all of the ways and to the full extent that can be achieved under the law. As Ihave said, experience suggests that there must be a limit to continuing litigation

of that kind. However, the legislature was, on the other hand, no doubt conscious of the possibility of error by the Tribunal and of the serious effect which such error could have. Findings of fact in proceedings before a Medical Tribunal may depend upon witnesses who are ill, physically or mentally. They may depend upon recollections of things long past. They may depend on the interpretation to be put upon actions taken or not taken by the parties concerned. And such proceedings may be affected by the enthusiasm of complainants or witnesses. I do not by this intend to reflect upon the capacity or dedication of the Medical Tribunal, the judge, the professionals, and the other members who may constitute it in a particular case. Nor do I reflect upon those who are concerned with the administration of the legislation. But the nature of the contests apt to be undertaken have been illustrated by a number of cases recently before this Court: see, eg, Bannister v Walton (19 93) 30 NSWLR 699 (special leave to appeal refused).

At least in the 1992 legislation, the number and incidents of successive applications for review may be controlled by the Tribunal. This, to an extent, may mitigate the evils of repeated legislation in respect of findings and facts and orders made by the Tribunal. This no doubt was enacted because of the recognition that otherwise repeated applications might be made. It is, of course, possible to see repeated applications as based as well on post order events as upon pre order events. But I do not think that the Court should restrict the generality of the legislation to post order events in this way.

However, to conclude that pre order errors may be reviewed does not mean that, in every application for review, they must be reviewed: it does not determine what, on a "review" of this kind, the Tribunal is authorised or required to do. I come therefore to consider what the obligation to "review" requires that the Tribunal do. The legislative provisions give to the medical practitioner affected a right to a review. In this context, "right" carries with it the correlative Hohfeldian duty: there is a duty on the Tribunal to carry out a review. But that leaves for determination what that duty requires the Tribunal to do.

The submissions for Dr Rohatgi suggested, I think, that if there was a duty upon the Tribunal to review, that duty must involve a reconsideration of the original findings and orders. It followed, on this view, that Dr Rohatgi had the right, and the Tribunal had the correlative duty, to undertake a reconsideration de novo of those findings and orders. I do not think that that is the effect of the

legislation. In my opinion, the meaning of "review" lies between the two extremes to which I have earlier referred. It is for the Tribunal to determine what the material placed before it warrants to be done, ie, what course of action should be followed. Thus, a mere claim for reconsideration of otherwise apparently reasonable findings and orders could be held by the Tribunal to involve no more than a consideration of the terms of the findings and orders on their face. A claim for reconsideration supported by a creditable retraction by a crucial witness in the original proceeding might well require or warrant that the Tribunal do more. There is, no doubt, a minimum below which it may not descend: the nature of a "review" may require at least a consideration of the position in the manner to which I have referred. But beyond this it is, I think, a matter for the Tribunal to determine, acting within proper limits, what is required in order to discharge its obligation to review. In one case it may feel it appropriate to consider the findings of fact de novo; in another case it may not. No error of law would be involved merely by deciding the matter one way or the other.

UWROHATGI v MEDICAL TRIBUNAL OF NEW SOUTH WALES and ANOR (Mahoney ARY

Upon this view of the obligations of the Tribunal, I am of opinion that, in the present case, what it did did not constitute a "review" within either s32V or, insofar as it is relevant, the requirement imposed by s92 to s94 of the 1992 Act. Its conclusion that, in accordance with its previous decisions, it should not consider the appropriateness of reviewing the original findings and orders, produced the result that it failed to enter upon a reconsideration such as was required by its obligation to "review".

I come therefore to consider what, on this basis, should be the orders made by this Court. Ordinarily an error of this kind would constitute an error in respect of a matter of law within s32U and s90. Such an error would be a reason for appeal to this Court. This Court, if it found such an error, could make an appropriate order within the terms of s32U(3) or s91(1). Ordinarily relief by way of mandamus is not appropriate where the error alleged could have been corrected on appeal. However, the existence of a right of appeal is not inconsistent with the grant of prerogative relief: see generally The Queen v Thomas [1892] | QB 426 at 429 and 430; R v Paddington Valuation Officer: Ex parte Peachey Property Corporation Ltd [1966] 1 QB 380 at 399 and 400; de Smith Judicial Review of Administrative Action (3rd ed) at 503 and 504. The court may, in appropriately special circumstances and as a matter of discretion, grant prerogative relief even though, properly pursued, the remedy of appeal was available. Ordinarily, it is proper that a litigant be confined to the right of appeal which the legislation has given to him and to the orders which may be made by the appellate court in such a procedure.

However, there are, in my opinion, circumstances in the present case which warrant the grant of mandamus. The right of appeal under the 1938 Act was not exercised. It has now expired. It is not necessary to determine whether technically the time for appealing under that Act could be extended having regard to the repeal of the 1938 legislation. There would, I think, be no point in extending that time. I doubt, without deciding, that the right of appeal under the 1992 Act would be applicable in respect of a decision, given in 1992, to refuse an application for review made under the 1938 Act. It would, of course, be possible for Dr Rohatgi to make such application for review under the 1992 Act. But he should not be forced to take that course. No doubt the Tribunal would deal with that application as it has done with the instant one. The contest between the parties in the litigation before this Court has turned upon the proper construction of "review" in the legislation. Dr Rohatgi has succeeded upon the substantial matters that have been argued, at least to some extent. It is, in my opinion, appropriate that a medical tribunal enter upon a review of the original removal order in accordance with the relevant legislation and that it do so in accordance with the meaning of "review" to which I have referred.

There are, however, questions of some difficulty as to the power of the previously existing Medical Tribunal to enter upon a review of the removal order having regard to the repeal of the 1938 Act and the terms of the transitional provisions. It would be undesirable that the Court make orders which, however structured, would leave room for doubt and further litigation in this regard. It would be preferable if the parties agreed upon a form of order which would give effect to the rights, in respect of review and costs, which in my opinion Dr Rohatgi has. Thus, it may be an appropriate course for the parties to agree that an application for review by Dr Rohatgi made under the 1992 Act would be

considered by the Tribunal in accordance with the principles established by this Court and that the substantial merits (if any) in the contest between them should be considered in such a procedure.

In my opinion, therefore, the parties should consider the form of the orders appropriate for this purpose. An order merely for mandamus in respect of the present application would be prima facie the proper order but might produce the complications to which I have referred. An order made upon the basis of undertakings by the complainant that an appropriate review under the 1992 Act be achieved might enable unnecessary difficulties to be avoided.

However this be, the Court should, in my opinion, direct Dr Rohatgi to bring in Short Minutes of the Orders which are appropriate to be made. If the parties can agree upon the terms of the orders, the orders may be made without unnecessary argument. Alternatively, the Court will if necessary hear further argument as to the form of the orders. Dr Rohatgi should file and serve the draft Minutes of Order for this purpose within twenty one days from the date on which these reasons are delivered. Dr Rohatgi should have the costs of the proceeding before this Court to date. Further costs should be dealt with by the Court when it considers the orders to be made. The proceeding should be stood over accordingly.

Meagher JA I agree with Mahoney AP. Powell JA I agree with Mahoney AP.

1. Short Minutes to be prepared, filed and served within twenty one days of today.

2. Claimant to have costs of proceedings in this Court to date. Further order as to costs to be made by Court considering orders to be made.

Counsel for the Claimant: I BARKER QC/C WATERSTREET Instructed by: LANE AND LANE