• Medical Practitioners Act 1983 , referred to.
• Annetts and Anor v McCann and Ors [1990] HCA 57; (1990) 170 CLR 596;
• Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564;
• Kioa and Others v West and Anor [1985] HCA 81; (1985) 159 CLR 550, applied.
• M v Director of Public Prosecutions (unreported decision of the Supreme Court of NSW delivered 6 March 1999) ;
• Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75;
• Re NSW Bar Association and Others; Ex parte Evatt (1967) SR(NSW) 232;
• The Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582, discussed.

Counsel: MR T GRAY QC WITH MR D EDWARDSON - Solicitors: MOODY ROSSI & CO.

Counsel: MR M A STEVENS - Solicitors: CROWN SOLICITOR FOR THE STATE OF SOUTH AUSTRALIA

[1999] SASC 402

1 MARTIN J. The plaintiff is a medical practitioner. He seeks orders in the nature of certiorari and mandamus directed to the Medical Board of South Australia ("the Board").

2 By complaint dated 18 June 1998 laid by the Registrar of the Board, the plaintiff was charged with four counts of unprofessional conduct. All counts concerned the same patient. The Board convened a hearing and heard submissions from counsel for the parties. Without hearing any evidence, the Board "referred" the complaint to the Medical Practitioners Professional Conduct Tribunal ("the Tribunal"). The plaintiff seeks an order in the nature of certiorari quashing the decision to "refer" the complaint to the Tribunal together with an order in the nature of mandamus directing the Board to conduct an inquiry into the subject matter of the complaint. I have highlighted the words "referred" and "refer" because, as appears later in these reasons, the characterisation of the Board's decision is at the heart of the plaintiff's submission that the Board acted without jurisdiction.

3 The plaintiff also raised a number of matters centred on issues relating to the interpretation of the Medical Practitioners Act 1983 ("the Act") and to alleged unfairness to the plaintiff arising out of the proceedings before the Board. The defendant argued that a number of the complaints were not matters to be considered upon an application for judicial review, but I heard full submissions on all issues that the plaintiff wished to raise.

4 The grounds of unprofessional conduct specified in the complaint are as follows:

"1. Between the 30th day of December 1992 and the 11th day of August 1996 was guilty of unprofessional conduct in relation to the practise of medicine in the management and treatment of [patient named].

1. At all material times the respondent practised as a registered general practitioner from premises situated at [address specified].

2. [Patient named] (hereinafter referred to as "the patient") at all material times was a patient of the respondent. The patient had been consulting Dr [T] for a number of years, beginning in 1987.

3. From about the 11th July 92 the patient consulted the respondent for stress, anxiety and panic attacks. At about that time the patient's weight was recorded at 48.5 kilograms. The respondent treated the patient, providing her with stress management therapy as well as prescribing medication.

4. During about November 1992 the respondent gave the patient $1 400.00 in cash to assist her with her debts. During about February of 1994 the respondent contributed about $3 760.00 towards the cost of a car for the patient.

5. From about December of 1992 the patient began working for the respondent as a part-time receptionist. She continued in that employment until about August of 1996, with a break of about 7 months in 1995.

6. On or about the 31st December 1992, the respondent began a sexual relationship with the patient. This sexual relationship lasted until on or about the 10th August 1996, and in the main involved sexual intercourse at the respondent's surgery at [address specified]. Sexual intercourse took place on frequent occasions, on some occasions during the course of a consultation.

7. Between the 30th of December 1992 and the 11th August 1996 the patient consulted the respondent on about 162 occasions. Between the 31st December 1992 and the 1st January 1994, the patient consulted the respondent on about 61 occasions. Between the 31st December 1993 and the 1st January 1995 the patient consulted the respondent on about 53 occasions. Between the 31st December 1994 and the 1st January 1996 the patient consulted the respondent on about 30 occasions. Between the 31st December 1995 and the 11th August 1996 the patient consulted the respondent on about 18 occasions.

8. On the 6th March 1993, the patient's medical records indicate that her weight was recorded as 43 kilograms, and on the 9th March 1993 her medical records indicate that the respondent diagnosed her as suffering from anorexia nervosa. On the 14th June 1993 the patient's medical records indicate that the respondent diagnosed the patient as "emotionally very unstable". On the 1st February 1996 the patient's medical records indicate that the respondent diagnosed the patient as having "suicidal tendencies".

2. Between the 30th day of December 1992 and the 11th August 1996 was guilty of unprofessional conduct in the practise of medicine in relation to his management and treatment of [patient named].

1. The complainant repeats particulars 3, 6 and 8 of count 1 above.

2. In all of the circumstances, and in particular the sexual nature of the relationship between the respondent and the patient, the respondent ought to have referred the patient for psychological or psychiatric counselling or treatment.

3. Between the 30th day of December 1992 and the 11th August 1996 was guilty of unprofessional conduct in the practise of medicine in relation to his management and treatment of [patient named].

3. During the course of the sexual relationship described in count 1 above, on 1 occasion the respondent injected a drug into the patient, prior to taking sexually explicit photographs of her.

4. The type of drug injected is not known to the complainant.

5. The drug was not injected by the respondent for any proper medical reason.

4. Between the 30th day of December 1992 and the 11th August 1996 was guilty of unprofessional conduct in the practise of medicine in relation to his management and treatment of [patient named].

1. During the course of the sexual relationship described in count 1 above, on several occasions the respondent orally administered a drug to the patient prior to sexual intercourse taking place.

2. The type of drug administered is not known to the complainant.

3. The drug was not administered by the respondent for any proper medical reason."

5 After the complaint was laid, by notice dated 8 July 1998 the Board advised the plaintiff that it intended to inquire into the complaint. The terms of the notice were as follows:

TAKE NOTICE that the Medical Board of South Australia intends to inquire into a complaint which has been laid before the Board alleging unprofessional conduct on your part as set out in the annexed complaint.

AND FURTHER TAKE NOTICE that subject to Section 54 of the Medical Practitioners Act, 1983, the Board shall afford to you a reasonable opportunity to call and give evidence, to examine or cross-examine witnesses and to make submissions to the Board. You shall be entitled to be represented by a legal practitioner at the hearing of these proceedings.

AND THAT, pursuant to Section 54(4) of the Medical Practitioners Act, where, in the course of conducting any inquiry, the Board considers that the allegations or evidence against a medical practitioner are sufficiently serious, it may terminate the proceedings and itself lay a complaint against the medical practitioner before the Medical Practitioners Professional Conduct Tribunal in relation to those allegations or that evidence.

AND FURTHER TAKE NOTICE that on THURSDAY, 6TH AUGUST 1998 AT 2.00PM at the Boardroom, 91 Payneham Road, St. Peters, the Medical Board of South Australia intends to hold a pre-hearing conference.

6 The complaint came on for hearing before the Board on 21 December 1998. The plaintiff was represented by senior and junior counsel. Prior to the hearing the Registrar had advised the plaintiff's legal representatives that he would be requesting that the Board lay a complaint before the Tribunal without first hearing evidence. At the outset of the hearing and before a plea was taken from the plaintiff, senior counsel for the plaintiff indicated that the plaintiff opposed the course proposed by the Registrar and sought an order that the patient be called before the Board to give evidence.

7 The basis of the plaintiff's application had its origins in a letter of 16 August 1996 from the patient to the Registrar in which the patient complained of rape and other abuses by the plaintiff. The allegation of rape was not, however, part of the complaint before the Board. Counsel suggested that the plaintiff was entitled to further particulars of the allegations being pursued and that the patient should be called to give evidence before the Board. It was submitted that the Act envisages a mandatory investigation by the Board. Counsel suggested the Board was performing a "quasi-judicial" function and could not properly determine to lay a complaint before the Tribunal unless the "factual substratum" of the allegations was before the Board.

8 The Registrar submitted that the complaints were fully particularised and opposed the calling of the patient. He submitted that, in view of the seriousness of the matters raised in the complaint, the Board should lay a complaint before the Tribunal.

9 After a short adjournment, the Board ruled as follows:

"This panel has considered this matter, and there's been a long tradition of this board to treat matters considered of a serious nature, such as sexual misconduct by a medical practitioner with a patient, for that matter to be referred to the Medical Practitioners Professional Conduct Tribunal and such is this case."

10 In considering the jurisdiction of the Board and the other issues raised by the plaintiff, it is necessary to examine the scheme of the Act and the context in which the Board and the Tribunal operate. The Board is established under Part 2 of the Act as a body corporate whose members are appointed by the Governor. It is a requirement that one of the members be a legal practitioner. The functions and powers of the Board are set out in s13. Sub-section (1) of s13 requires the Board to exercise its functions with a view to ensuring that the community is adequately provided with medical services of the highest standard and to achieving and maintaining the highest professional standards of both competence and conduct in the practice of medicine. The various functions of the Board include matters associated with the qualifications of medical practitioners and regulations prescribing the requirements to be fulfilled by persons applying to be registered as a medical practitioner. Section 13(3)(d) provides that the Board may exercise the powers vested in it under the Act or such powers as are necessary for, or incidental to, the efficient discharge of its functions.

11 For the purposes of proceedings before it, including applications for registration or reinstatement of registration, s 16 of the Act confers on the Board certain compulsory powers in connection with witnesses and documents. Section 17 provides that the Board is not bound by the rules of evidence and enables the Board to determine its own procedure for the conduct of hearings. Section 17(3) requires that " the Board shall act according to equity, good conscience and the substantial merits of the case". A party to the proceedings before the Board is entitled to be represented by a legal practitioner and there is provision for orders for costs against a party to the proceedings.

12 Section 20A empowers the Board to conduct certain investigations and creates offences in connection with the conduct of investigations such as obstructing the Registrar in the exercise of the powers of investigation. Sub-section (5) of s 20A provides the usual exception that a person is not obliged to answer a question if the answer would result in or tend towards self-incrimination.

13 Part 4 of the Act governs proceedings before the Board in connection with inquiries by the Board as to the competence or incapacity of practitioners and in relation to complaints of unprofessional conduct. As the interpretation of s 54 is central to a number of the plaintiff's contentions, I set out that section in full:

"(1) A complaint alleging unprofessional conduct on the part of a medical practitioner may be laid before the Board by -

(c) The South Australian Branch of the Australian Medical Association Incorporated; or

(d) a person who is aggrieved by conduct of the medical practitioner or, where that person is a child or is suffering from a mental or physical incapacity, by a person acting on his behalf.

(2) Where a complaint has been laid before the Board under this section, the Board must inquire into the subject matter of the complaint unless the Board -

(a) considers that the complaint is frivolous or vexatious; or

(b) lays a complaint before the Tribunal relating to matters the subject of, or arising out of, the complaint laid before the Board.

(3) Where a complaint has been laid under this section by or on behalf of an aggrieved person and the Board is satisfied that the complaint was laid by reason of a misapprehension on the part of the complainant or of a misunderstanding between the parties, it may, before proceeding further with the hearing of the complaint, require the parties to attend before the Registrar in order to clarify the misapprehension or misunderstanding.

(4) Where, in the course of conducting an inquiry under this section, the Board considers that the allegations or evidence against the medical practitioner are sufficiently serious, it may terminate the proceedings under this section and itself lay a complaint against the medical practitioner before the Tribunal in relation to those allegations or that evidence.

(5) If, after conducting an inquiry under this section, the Board is satisfied that the matters alleged in the complaint have been established, it may reprimand the medical practitioner."

14 The general power of the Board to lay a complaint before the Tribunal alleging unprofessional conduct on the part of a medical practitioner or former medical practitioner is found in s 58(1) of the Act. That power is not limited to circumstances where a complaint has been laid before the Board and no criteria to be considered by the Board in exercising that power are specified.

15 The Tribunal is of a different character from the Board and has a more limited role. It is created by s 23 of the Act and is not a body corporate. Provision is made for the appointment of members and s 24(1)(a) directs that the presiding officer be the Senior Judge of the Local and District Criminal Court or the nominee of the Senior Judge who must be a District Court Judge or a magistrate nominated with the approval of the Chief Magistrate.

16 The functions of the Tribunal are enlivened only in connection with complaints by the Board alleging unprofessional conduct on the part of a medical practitioner or a former medical practitioner or in connection with orders made by the Tribunal (ss 58 and 59). There is no provision for the laying of a complaint before the Tribunal by any person or body other than the Board. That restriction is to be contrasted with the list of those who may lay a complaint before the Board.

17 Once the complaint has been laid by the Board, the duties of the Tribunal are set out in the provisions of s 58:

(b) on the part of a person who was at the relevant time a medical practitioner,

(2) Where a complaint has been laid under this section, the Tribunal shall inquire into the subject matter of the complaint.

(3) If, after conducting an inquiry under this section, the Tribunal is satisfied -

(a) in the case of a medical practitioner, that he has been guilty of unprofessional conduct, it may, by order, do one or more of the following:

(ii) order the medical practitioner to pay a fine not exceeding five thousand dollars;

(iii) impose conditions restricting his right to practise medicine;

(iv) suspend the registration of the medical practitioner by removing his name from the general register or the specialist register for a period not exceeding one year;

(v) cancel the registration of the medical practitioner on the general register or on the specialist register; or

(b) in the case of a former medical practitioner, that when he was a medical practitioner he was guilty of unprofessional conduct, it may order him to pay a fine not exceeding five thousand dollars."

18 Other provisions govern the manner in which the Tribunal shall conduct its hearings. Section 62 provides that the Tribunal is not bound by the rules of evidence and it is empowered to determine its own procedure. The Tribunal is required to act according to equity, good conscience and the substantial merits of the case. Section 63 provides the Tribunal with compulsory powers in connection with documents, witnesses and the taking of evidence on oath or affirmation.

19 The difference between the functions of the Board and the Tribunal is apparent from that brief overview. The role of the Tribunal is limited to inquiring into complaints of unprofessional conduct laid before it by the Board and to imposing the appropriate penalty when satisfied that a medical practitioner or former medical practitioner has been guilty of unprofessional conduct. The Tribunal possesses a wide range of powers, including the option of cancelling the registration of a medical practitioner. The Board performs a much wider role in connection with the medical profession, but its disciplinary power upon finding that matters alleged in a complaint of unprofessional conduct against a current medical practitioner have been established is limited to reprimanding the medical practitioner. The Board has no powers to inquire into the conduct of a former medical practitioner.

20 The operation of s 54 of the Act upon the procedures and powers of the Board must be considered in the context of the scheme of the Act as to the functions of the Board and the Tribunal. It is necessary to examine the operation of s 54 because the plaintiff complains that the Board did not properly consider the exercise of its powers as required by s 54.

21 When a complaint alleging unprofessional conduct has been laid before the Board, s 54(2) requires the Board to inquire into the subject matter of the complaint unless the Board considers the complaint is frivolous or vexatious or determines to lay a complaint before the Tribunal relating to the matters that are the subject of or arise out of the complaint. Sub-section (2) contemplates, therefore, circumstances in which the Board is relieved of the responsibility of conducting an inquiry into the subject matter of a complaint at a time when the only information before the Board is likely to be found in the terms of the formal complaint laid by the Registrar or some other person authorised to lay a complaint.

22 In my opinion, Parliament intended that the Board be entitled to rely solely upon the content of a complaint laid before it in arriving at its decision to lay a complaint before the Tribunal without conducting any inquiry into the complaint. While s54(2) does not specify the criteria to be taken into account by the Board, in view of the Board's limited disciplinary powers in comparison with those of the Tribunal it is reasonable to conclude that Parliament envisaged that the Board would be guided by the seriousness of the conduct alleged.

23 Once the Board has decided to lay a complaint before the Tribunal without first conducting an inquiry into the subject matter of the complaint, the power to lay the complaint is found in s 58. Although it was suggested during submissions that s 54(2) (b) conferred such a power on the Board, in my opinion s 54(2)(b) does not confer that power. The wording and context of s 54(2)(b) does not lend itself to the interpretation suggested. Section 54(2)(b) has a different role to play, namely, prescribing the circumstances in which the Board is relieved of the responsibility of conducting an inquiry into the subject matter of a complaint.

24 In respect of the complaint against the plaintiff, the Board did not exercise the power contained in s 54(2)(b). It served notice upon the plaintiff that it intended to inquire into the complaint and a hearing was convened. In those circumstances s 54(4) became applicable. Before the Board and in this Court, the plaintiff submitted that having commenced the inquiry, in deciding whether to lay a complaint before the Tribunal the Board was required by s 54(2) of the Act to conduct an inquiry into the subject matter of the complaint by calling evidence and was not entitled to have regard only to the content of the written complaint. Counsel submitted that without material additional to the terms of the complaint, the Board could not fulfil the obligations prescribed by s54(2). In addition it was contended that the terms of the complaint could not amount to "allegations" for the purposes of s 54(4).

25 In my opinion, the interpretation for which the plaintiff contended is contrary to the ordinary and natural meaning of the words in s 54 and to the scheme created by the Act for the hearing and determination of complaints of unprofessional conduct. Parliament created a scheme in which complaints of unprofessional conduct are to be considered first by the Board which has the capacity to ensure that frivolous or vexatious complaints and unprofessional conduct requiring only a reprimand do not reach the Tribunal. However, the primary body with the responsibility of hearing and determining such complaints is the Tribunal. Section 54 is designed to create an efficient scheme whereby allegations of unprofessional conduct can be placed before the Tribunal without the necessity of the Board first conducting an inquiry or full inquiry. Section s 54(2) provides the mechanism for this to occur without the Board conducting an inquiry. The purpose of s 54(4) is to enable the Board, once it has commenced an inquiry, to terminate the inquiry at any time during the inquiry and without hearing evidence if it considers that "the allegations or evidence against the medical practitioner" are "sufficiently serious" and should be determined by the Tribunal. Viewed in this way there is no conflict between s 54(2) and s 54(4) as each is concerned with a different stage of the process. The scheme apparent in s 54 would be defeated or largely defeated if the plaintiff's interpretation was adopted.

26 Counsel for the defendant also submitted that s 54(2) continues to operate after the Board has commenced an inquiry and throughout the hearing until the inquiry is completed or terminated. In essence, it was argued that as s 54(2)(b) refers to the Board laying a complaint before the Tribunal relating to matters "arising out of the complaint before the Board", the section was intended to operate during an inquiry because such matters could only arise in the course of an inquiry. Hence it was said that s 54(2) operates in conjunction with s 54(4) and they are not two separate procedures.

27 I doubt that s 54(2) was intended to have a continuing operation once an inquiry is commenced. The obvious purpose of s 54(2) is to enable the Board to lay a complaint before the Tribunal without commencing an inquiry. Parliament did not use express words extending the operation of s 54(2) to circumstances where an inquiry has commenced, but chose to provide a specific power of termination during the course of an inquiry in s 54(4). In using the words "arising out of the complaint", Parliament may have had in mind the possibility that the Board could decide to lay a complaint before the Tribunal in respect of conduct mentioned in a peripheral way in the complaint before it which was not the subject of a specific charge in the complaint. However, for the reasons later discussed it is not necessary for me to finally decide this issue.

28 As to the proposition that the terms of the complaint cannot amount to "allegations" for the purposes of s 54(4), in my opinion that proposition is also contrary to the scheme of s 54 to which I have referred. Parliament empowered the Board to decline to embark upon an inquiry solely on the basis of the terms of the complaint laid before it. Once the inquiry has been commenced, Parliament intended that in arriving at a decision whether to terminate the proceedings and lay a complaint before the Tribunal, the Board should not be confined to considering only the terms of the complaint and should be entitled to take into account allegations presented in other forms. This interpretation is consistent with the scheme of s 54. If the plaintiff's submission is correct, although the Board could not have regard to the terms of the written complaint, if those terms were read aloud and presented as oral allegations the Board could take them into account. Parliament cannot have intended such a result.

29 In my opinion, therefore, having embarked upon the inquiry into the complaint against the plaintiff, the Board was entitled to have regard to the terms of the written complaint in arriving at a decision whether to terminate the inquiry and to lay a complaint before the Tribunal. Section 54 did not oblige the Board to hear evidence.

30 The plaintiff also submitted before the Board and in this Court that even if the Board was entitled to take into account the terms of the written complaint as allegations for the purposes of s54(4), the background to the complaints by the patient "demanded that she be called to give evidence and be cross-examined". This contention was based upon the fact that the patient had originally complained to the police and to the Registrar of various sexual abuses including rape, but those allegations were not part of the complaint laid by the Registrar before the Board. As will appear later in these reasons, counsel submitted before the Board that it could not properly fulfil its functions without knowing precisely what the patient now alleged.

31 The proposition that the circumstances of a change in the nature of the allegations required that the patient give evidence before the Board is not, strictly speaking, a matter that the plaintiff is entitled to raise in this Court upon an application for judicial review. As mentioned previously, however, I heard full submissions on this and other matters that are not within the purview of an application for judicial review in order to ensure that the plaintiff was able to air all relevant complaints about the procedure before the Board.

32 It was undoubtedly appropriate for the plaintiff to place these matters before the Board in an effort to persuade the Board that it should not lay a complaint before the Tribunal without first hearing evidence from the patient. The Board was not, however, obliged to accede to such a submission. The Board had a discretion and, in my opinion, the allegations before it found in the written terms of the complaint were sufficiently serious to justify the exercise of the discretion to terminate the proceedings and to lay a complaint before the Tribunal without first hearing evidence from the complainant. In my opinion, if this Court was sitting as a court of appeal and was concerned with the soundness of the decision in this respect, the plaintiff would have failed to establish any basis for interfering with the exercise of the discretion based upon the change in the nature of the allegations by the patient.

33 In the context of the exercise of the Board's discretion whether to require the patient to give evidence before it, the officer representing the Registrar submitted to the Board that the calling of the patient was undesirable as it would amount to a "double ordeal" if she were to give evidence before both the Board and the Tribunal. He submitted it was somewhat of an ordeal for any individual to be required to recount intimate sexual details. In this Court, counsel for the plaintiff criticised that submission and the submission of the defendant in this Court that the patient should be regarded as an alleged victim for these purposes. Counsel said that there was no suggestion in the complaint before the Board of a lack of consent and it was, therefore, inappropriate to refer to the patient as an alleged victim.

34 In my opinion, the complaint by counsel was without substance. The issue arose in this Court because I sought submissions from the parties as to whether the policy of the criminal law which discourages multiple cross-examination of alleged victims of sexual assault was applicable in considering whether this patient should have been called before the Board to give evidence. It was in that context that counsel for the defendant submitted that the policy applied and the patient should be regarded as an alleged victim in the circumstances of this matter. The complaint alleged that the patient consulted the plaintiff from about 11 July 1992 in connection with "stress, anxiety and panic attacks" and that the plaintiff treated the patient for that condition. It was alleged that the sexual relationship began on about 31 December 1992 and lasted until about 10 August 1996. Consultations continued and it was alleged that on 9 March 1993 the plaintiff diagnosed the patient as suffering from anorexia nervosa. The complaint asserts that the records indicate that on 14 June 1993 the plaintiff diagnosed the patient as "emotionally very unstable" and on 1 February 1996 he diagnosed her as having "suicidal tendencies". The complaint also included allegations that one occasion the plaintiff injected a drug into the patient prior to taking sexually explicit photographs of her and that, on several occasions, he orally administered a drug to her prior to sexual intercourse occurring.

35 The complaint discloses allegations that the plaintiff was in a position of power and trust and that he abused that position by taking advantage of the patient at a time when she was in an emotionally unstable condition. It alleged a lengthy sexual relationship in the context of the alleged abuse of that position of power and trust. In those circumstances it was quite appropriate for the officer representing the Board to refer to the possibility of the "double ordeal" if the patient was required to give evidence on two occasions of intimate sexual details and it was also quite appropriate for counsel for the defendant in this Court to refer to the patient as the alleged victim. In my opinion, the rationale underlying the policy of the criminal law to which I have already referred was equally applicable to a consideration by the Board as to whether it would require the patient to be called to give evidence. The possibility that the patient would be required to give evidence twice was a relevant factor for the Board to consider.

36 I return to the operation of s 54(4) of the Act. It was suggested during submissions that s 54(4) is the source of the power to lay a complaint in the circumstances envisaged by s 54(4). Viewed in isolation, the wording of s 54(4) could appear to support that proposition. It provides that in certain circumstances the Board may terminate proceedings "and itself lay a complaint against the medical practitioner before the Tribunal". In my opinion, however, when s 54(4) is read with s 54(2) and s 58, it is apparent that Parliament intended that the source of the power of the Board to lay a complaint before the Tribunal would be found only in s 58. Section 58(2) limits the power of the Tribunal to inquire into the subject matter of a complaint laid before it to a complaint laid under s 58. If the Board was able to lay a complaint pursuant to s 54(4), the Tribunal would not have power to inquire into that complaint.

37 In exercising the power to lay a complaint, the Board is performing an administrative function and arriving at a decision to prosecute. Subject to the statutory context in which the exercise of an administrative power occurs, in M v Director of Public Prosecutions (unreported decision of the Supreme Court of New South Wales delivered 6 March 1996), Dunford J described the test for determining whether an administrative decision is reviewable by the courts in the following terms:

"The test for determining whether an administrative decision is reviewable by the Courts is generally accepted to be that laid down by Lord Diplock in the Council of Civil Service Unions v Minister for Civil Service (the CCSU case) [1985] 1 AC 374 at 408 as follows:

"To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either:

(a) by altering rights or obligations of that person which are enforceable by or against him in private law; or

(b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.""

38 In the context of a decision to prosecute, in Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, the High Court rejected the proposition that because the power to prosecute was statutory, its exercise was necessarily examinable by the courts. The following passage in the judgment of Gibbs ACJ and Mason J in Barton is of assistance (p 94):

"It is not correct to say that the exercise of every power given by statute is examinable by the courts in the manner suggested by the appellants. It is correct to say that in cases where a statute confers an administrative discretion which is unlimited in terms, the court must concede to the repository a discretion unlimited by anything but the scope and object of the statute. As Dixon J. said in Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 C.L.R. 492, at p. 505, before the court can say that a particular consideration is extraneous to the power "there must be some warrant in the provisions, the nature or the subject matter of the statute". See also Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 C.L.R. 746, at p. 758.

The provision made by s. 5 is very different from an ordinary administrative discretion conferred by statute. The section is a self-contained provision the scope of which is unaffected by other provisions in the statute. It imposes no duty on the Attorney-General to consider whether a prosecution shall be instituted. All that the relevant part of the section does it to indicate the mode in which a criminal prosecution shall be instituted, i.e. by information in the name of the Attorney-General or other officer duly appointed for the purpose. The provision does not limit or restrict the Attorney-General in any way in the consideration which he may give to a particular case. And because the language leaves the Attorney-General at large in deciding what course he shall take, it makes his decision immune from judicial review.

All this indicates that Parliament intended to give the Attorney-General for the Colony the unexaminable discretion possessed by the Attorney-General in England acting on behalf of the Crown. The function which the Attorney performs in commencing prosecutions is one that otherwise was performed by the grand jury whose decisions were not subject to judicial review except for matters going to essential regularity."

39 The defendant submitted that the decision of the Board to prosecute by laying a complaint before the Tribunal is similarly not subject to judicial review. Counsel contended that the general approach to the institution of criminal proceedings is applicable and also argued that the rights of the practitioner were not affected by the decision to lay a complaint thus precluding any review by the Court. In my opinion, however, the power of an Attorney-General or a Director of Public Prosecutions to prosecute is distinguishable on the basis of the history of that function as explained by the High Court in Barton. In addition, the following passage in the joint judgment of Gibbs ACJ and Mason J provides a further point of distinction (pp 94 and 95):

"It would be surprising if Parliament intended to make the Attorney's information subject to review. It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced - see the speeches in Connelly v. Director of Public Prosecutions [1964] A.C. 1254 and Director of Public Prosecutions v. Humphrys [1977] A.C.1, to which we shall refer shortly - though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue. Finally, it cannot be said that the existence of judicial review of the Attorney's decision is essential to the administration of justice for, as we shall see, the court has other powers to ensure that a person charged with a crime is fairly dealt with."

40 In referring to the "other powers" in that passage, their Honours had in mind what they later described as "all the necessary powers to prevent an abuse of process and to ensure a fair trial" possessed by the courts.

41 The defendant relied upon two authorities concerning disciplinary proceedings against a barrister and a medical practitioner. In Re NSW Bar Association and Others; Ex parte Evatt (1967) 67 SR(NSW) 232, the New South Wales Bar Association sought a declaration that a barrister had been guilty of professional misconduct. The barrister brought a notice of motion that the proceedings should be stayed on a number of grounds including the proposition that the Court should not entertain the proceedings until the Council of the NSW Bar Association had given the barrister an opportunity to respond before the Council in respect of the matters charged against him. The Full Court dismissed that ground on the basis that the actions of the Council were not concerned with determining any question that affected the rights of the barrister. In conducting an inquiry the Council was "doing no more than to inform its own mind upon the question whether it ought to take proceedings against, or oppose the application of, the barrister or applicant in question." The Court said (p 235):

"In either event the preliminary inquiry or investigation is no more than an internal or domestic matter preliminary to a determination whether the proceedings should be taken or not. It is incapable of affecting the legal rights of the barrister whose conduct is in question. It is merely a preliminary to a determination whether to invoke the jurisdiction of the court, before which the barrister will be heard and which alone can make any decision affecting his rights."

42 The second authority relied upon by the defendant is the decision of the High Court in The Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582. The Court considered the operation of a provision of the Medical Acts 1939-1959 (Qld) which provided that if the Medical Board was of the view that a medical practitioner had been convicted of an offence for which in the opinion of the Board the practitioner should be subjected to disciplinary punishment, the Board could proceed to have the practitioner charged before the Medical Assessment Tribunal. The Act provided that if the Tribunal found the medical practitioner guilty of any charge it could impose disciplinary measures. The majority of the Queensland Full Court held that as the opinion of the Medical Board was an essential element of each offence, the practitioner should have been given the opportunity of being heard before the Board. The High Court took a different view. It held that the formation of the opinion by the Board was not part of a judicial process and was not a definite or substantive factor binding upon the Tribunal. It was for the Tribunal to determine whether the conviction was in respect of an offence for which the practitioner should be subjected to disciplinary punishment. In those circumstances the Court was of the view that the Board was not required to give the practitioner an opportunity to be heard.

43 The possible application of those authorities must be considered in the context of the provisions of the Act pursuant to which the Board operates and in view of the more recent developments of the law concerning the application of the rules of natural justice. As the majority of the High Court observed in Annetts and Anor v McCann and Ors [1990] HCA 57; (1990) 170 CLR 596, "many interests are now protected by the rules of natural justice which less than 30 years ago would not have fallen within the scope of that doctrine's protection" (p 599). In Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576, the majority of four justices of the High Court said:

"It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations" (Annetts v McCann).

Thus, what is decisive is the nature of the power not the character of the proceeding which attends its exercise. That is not to deny that provision may be made permitting or requiring procedures which are wholly inconsistent with a requirement of procedural fairness."

44 In the particular circumstances of this matter, in my opinion the principles by which I should be guided are set out in the judgment of Mason J in Kioa and Others v West and Anor [1985] HCA 81; (1985) 159 CLR 550 in the following passages (pp 582-585):

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 C.L.R. 106 at 109; Salemi [No. 2] (1977) 137 C.L.R., at p.419; Ratu (1977) 137 C.L.R., at p.476; Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 C.L.R. 487, at pp.498-499; F.A.I. Insurances Ltd. v. Winneke (1982) 151 C.L.R. 342, at pp.360, 376-377; Annamunthodo v Oilfields Workers' Trade Union [1961] A.C. 945. The reference to "right of interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

The reference to "legitimate expectation" makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi [No. 2] (1977) 137 C.L.R., at p. 404 Barwick C.J. expressed the view that the expression "legitimate expectation" adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of "legitimate expectation" extends to expectations which go beyond enforceable legal rights provided that they are reasonably based: Heatley (1977) 137 C.L.R., at pp. 508-509; F.A.I. (1977) 137 C.L.R., at pp. 348, 351-352, 369, 412; Attorney-General (Hong Kong) v. Ng Yuen Shiu [1983] 2 A.C. 629, at p. 636. The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. In view of some members of the Court in Salemi [No. 2] the "amnesty" constituted an example of such an undertaking. Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in F.A.I. (1982) 151 C.L.R. 342 or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 A.C. 374, at p. 401. The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case (text omitted)

(text omitted) The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Lorebun L.C. understood that this was the law when he spoke of the obligation to "fairly listen to both sides" being "a duty lying upon every one who decides anything": Board of Education v. Rice [1911] A.C. 179, at p.182. But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:

" which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a 'policy' or 'political' decision and is not subject to judicial review."

(Salemi [No. 2] (1977) 137 C.L.R., at p.452, per Jacobs J.)

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobile Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 C.L.R. 475, at pp. 503-504, Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 C.L.R. 546, at pp. 552-553; National Companies and Securities Commission v. News Corporation Ltd [1984] HCA 29; (1984) 156 C.L.R. 296, at pp. 311, 319-321.

In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No. 2] (1977) 137 C.L.R., at p. 451, per Jacobs J.

When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned."

45 Prior to commencing an inquiry, in arriving at a decision pursuant to s 54(2)(b) to lay a complaint before the Tribunal, the Board is not determining any question which affects the rights of a practitioner and its decision to lay a complaint is incapable of affecting those rights. In addition, no criteria are specified in the Act by which the Board is to exercise its discretion. As Gibbs ACJ and Mason J observed about the discretion under consideration in Barton, the discretion is unlimited in its terms and unlimited by anything but the scope and object of the statute. In addition, there is no suggestion in the Act that the Board is obliged to give notice to the practitioner that it is considering whether it should lay a complaint before the Tribunal without first conducting an inquiry or that it should afford the practitioner an opportunity to be heard upon that issue. In those circumstances, there is no basis for inferring that the practitioner is entitled to be heard before the Board makes a decision pursuant to s 54(2)(b).

46 Notwithstanding that a decision pursuant to s 54(2)(b) does not affect the rights of a medical practitioner, that decision does have serious implications for the medical practitioner. It exposes the practitioner to prosecution and the risk of conviction with attendant penalty. In my opinion, while the merits of the decision to exercise the power to lay a complaint pursuant to s 58 prior to commencing an inquiry is not subject to review by the Court, the supervisory jurisdiction of the Court extends to ensuring that the power is exercised consistently with the scope and object of the Act.

47 Once the Board has commenced an inquiry, different provisions and considerations apply. Although a decision by the Board pursuant to s 54(4) to terminate the inquiry and to lay a complaint before the Tribunal does not affect the rights of the practitioner, the decision carries with it the serious implications for the practitioner to which I have referred. Consideration must be given both to the effect of the provisions of the Act and to the notice given by the Board to the practitioner in order to determine the rights of the practitioner before the Board and whether the decision of the Board is subject to judicial review.

48 In the course of conducting an inquiry, the Board is required by s 17 to act according "to equity, good conscience and the substantial merits of the case". Section 57(1) specifies that the Board shall give not less than 14 days written notice to the parties of the time and place at which it intends to conduct proceedings and directs that the Board " shall afford the parties a reasonable opportunity to call and give evidence, to examine or cross-examine the witnesses, and to make submissions to the Board." If the Board proceeds to a determination as to whether the matters alleged in the complaint have been established, that determination affects the rights of the practitioner and the rules of natural justice apply to the proceedings.

49 Those observations are made in the context of a proceeding where the Board's purpose is to consider whether it is satisfied that the matters alleged in the complaint have been established. However, the Board is not obliged to continue an inquiry through to that conclusion. Section 54(4) empowers the Board to terminate the proceedings at any stage of those proceedings and before hearing any evidence. In my opinion, therefore, Parliament intended that the operation of s 57(1) concerning the examining and cross-examining of a witness must be read as subject to the power in s 54(4) to terminate the proceedings without hearing evidence.

50 The effect of the relevant provisions of the Act is to repose in the Board the power to exercise more than one function during the same hearing. It may be performing an investigatory function with a view to determining the merits of the allegations in the complaint. It may also be performing an administrative function. In deciding whether to terminate the inquiry and to lay a complaint before the Tribunal, in my opinion the Board is exercising an administrative function pursuant to a procedural provision which enables it to terminate the inquiry. In exercising that administrative function, the Act requires that the Board take into account the seriousness of the allegations or evidence, but no other criteria are specified. Section 54(4) does not require the Board to address the reliability of those allegations or evidence.

51 It is against the background of the statutory provisions, purposes of the proceedings and interests to which I have referred that the Court must determine "what the duty to act fairly requires in the way of procedural fairness" (per Mason J in Kiao v West at p 585). As I have indicated, in my opinion Parliament intended that in exercising the power contained in s 54(4) the Board is not required to afford the extent of procedural fairness that must be afforded to a medical practitioner during an inquiry to determine the merits of the allegations. The Board is not required to accede to a request by a medical practitioner that, before the Board terminates the inquiry pursuant to s 54(4), evidence be called or that the inquiry, having commenced, be seen through to its conclusion with the calling of witnesses and following the procedure laid down in s 57(1).

52 In considering the rights of a medical practitioner when the Board is determining whether to exercise its power to terminate pursuant to s 54(4), as the ultimate decision to be made by the Board is whether to lay a complaint before the Tribunal, it might be said that the practitioner would not ordinarily be entitled to be heard in respect of such a decision. Once the inquiry has been commenced and the practitioner is before the Board, however, in my opinion the practitioner is entitled to expect that a reasonable opportunity will be afforded to the practitioner to be heard upon whether the inquiry should continue or be terminated and a complaint laid before the Tribunal. It is important, therefore, for the Board to identify whether it is conducting an inquiry with a view to determining the merits of the allegations in the complaint or whether it is considering the issue of terminating the inquiry and laying a complaint before the Tribunal.

53 In this context, counsel for the plaintiff relied upon the notice given to the practitioner as establishing a legitimate expectation that a full inquiry would be conducted. In my opinion, the notice does not have that effect. It advised the practitioner of the Board's intention to inquire into the complaint. Importantly, it also advised that the affording to the practitioner of a reasonable opportunity to call and give evidence, to examine or cross-examine the witnesses and to make submissions to the Board was subject to s 54. That notification was immediately followed by the paragraph which stated that, during the course of the inquiry, pursuant to s 54(4) the Board could terminate the proceedings and lay a complaint before the Tribunal if it considered that the allegations or evidence against the practitioner were sufficiently serious. While the notice may have given rise to a legitimate expectation on the part of the practitioner that he would be heard on the question as to whether the inquiry should be terminated and a complaint laid before the Tribunal, it could not have given rise to a legitimate expectation that the Board would conduct a full inquiry to its conclusion.

54 As I have indicated, the content of the procedural fairness that the Board must afford to the medical practitioner will depend upon the purpose of the proceedings before the Board. In my opinion, the proceeding before the Board and its ultimate determination are capable of being the subject of judicial review. However, notwithstanding that I permitted the plaintiff to range outside the normal limits applicable on applications for judicial review, I stress that on an application for judicial review of proceedings before the Board the well recognised limitations on the role of the court in proceedings for judicial review are applicable.

55 In addition to the proposition that the Board acted without jurisdiction by purporting to "refer" the complaint to the Tribunal as opposed to deciding to "lay" a complaint before the Tribunal, the plaintiff advanced a number of complaints based on the manner in which the Board acted. It was submitted that the Board erred in basing its decision upon s 54(2)(b) or was, at the least, confused as to whether it should proceed pursuant to s 54(2)(b) or s 54(4). Counsel contended that as a result of those matters, procedural unfairness occurred because the Board failed to rule upon the plaintiff's initial procedural application. That error led to a failure to address the question of discretion pursuant to s 54(4) and a failure to hear the plaintiff on whether the discretion should be exercised. Counsel also argued that having determined that the matter should proceed before the Tribunal, the Board failed to consider the terms of the proposed complaint as required by s 54(4). It is necessary, therefore, to examine the proceedings before the Board in some detail.

56 As mentioned, prior to the commencement of the hearing before the Board the plaintiff was aware of the position that would be taken by the Registrar. By letter dated 16 December 1998, the Registrar advised the plaintiff's legal representatives that he would refer the Board to the terms of the complaint and, because of the seriousness of the allegations, ask the Board to lay a complaint before the Tribunal. At the outset of the hearing, senior counsel for the plaintiff indicated that she had a preliminary matter to raise concerning the way in which the Board intended to conduct the inquiry. She said the Registrar had been invited to call evidence, and particularly evidence from the patient, but the plaintiff understood that the Registrar would be asking the Board to lay a complaint before the Tribunal. She indicated the plaintiff was resisting the Registrar's application and submitted that "the Board has an obligation to itself further the inquiry by requiring the calling of evidence."

57 Counsel then referred to the Board's duties as both "investigative" and "quasi-judicial". She highlighted the fact that the patient had originally complained to the Board by letter of 16 August 1996 of a number of abuses by the medical practitioner, including rape, but the allegation of rape was not part of the complaint before the Board. She suggested for that reason, together with the age of the matter, that it would be inappropriate for the Board to simply rely upon the complaint itself. Counsel continued:

"In other words, we say it would be an abrogation of the board's duties and a denial of natural justice to Dr [T] not to have [patient named] called before the board to give evidence of exactly what it is that she alleges against Dr [T], particularly as the allegations started at such a high level, if you like, of complaint, being allegation of rape, and has now been diminished to something certainly serious but very much less serious than was originally alleged."

58 Counsel advised the Board that the plaintiff did not wish to plead because he was entitled to better specification of what he was being asked to plead to. She submitted that the "factual substratum" of the complaint was not sufficiently clear and that the Board could not be satisfied as to the allegations or the factual substratum in view of the change in the nature of the allegations previously mentioned. As to why it was more appropriate for the Board to investigate the factual substratum than the Tribunal, counsel submitted:

"Because the [A]ct itself envisages an investigation being completed by the board, a mandatory investigation. The board is obliged to inquire into the subject matter of the complaint, and that inquiry involves the receiving of allegations."

59 The officer representing the Registrar referred to s 54. He submitted that the legislation was designed to cater for the situation before the Board where "the matters raised in the complaint are so serious that the Board is of a view that they should go directly to the Tribunal". He suggested the purpose of the hearing was to afford the plaintiff natural justice in the sense of being entitled to be heard as to whether or not the Board should exercise the power in s 54 and lay a complaint before the Tribunal. He submitted the charges were fully particularised and argued that the calling of the patient was not desirable because it had the potential to create a double ordeal for her if she was required to give evidence before both the Board and the Tribunal. The position taken by the Registrar was succinctly stated in the following words:

"In my submission, Mr President, those allegations are serious enough to warrant the laying of complaints directly before the tribunal. (text omitted)

[M]y submission is, Mr President, that this is not an appropriate case that the board would want to hear any evidence, and would lay a complaint directly before the tribunal."

60 In reply, counsel for the plaintiff again referred to dividing what she described as the investigative and quasi-judicial aspects of the Board's function. She submitted the Board required more information about the allegations the patient was now making rather than simply relying upon the face of the complaint itself. She concluded her submission by saying:

"We say a drafted charge before this board could never amount to sufficient knowledge in the respective minds of board members to decide to put the matter up to the tribunal. We say if you simply relied on the face of it on the charge as particularised, that that would not fulfil your obligations."

61 The Board adjourned for a few minutes. When it returned it delivered the decision that the allegations should be "referred" to the Tribunal. Counsel for the plaintiff then raised a matter that is not relevant to these proceedings, but no complaint was made of any procedural unfairness.

62 In support of the plaintiff's case, the plaintiff tendered in this Court an affidavit from senior counsel. She was cross-examined by counsel for the defendant. Objection was taken to the receipt of the affidavit and I received it de bene esse.

63 In essence, counsel said she expected the Board would first rule on the question as to whether it was entitled to rely solely upon the terms of the complaint or whether some additional evidence was required before it could arrive at a decision whether to lay a complaint before the Tribunal. In her affidavit, counsel said that as the Board returned with the decision to place the matter before the Tribunal, she did not have an opportunity to present submissions as to whether the allegations were sufficiently serious to enliven the discretion and, if they were, whether in the circumstances the discretion to lay a complaint before the Tribunal should be exercised.

64 Counsel acknowledged in evidence that the Registrar had asked the Board to act on the allegations in the complaint and to lay a complaint before the Tribunal without hearing any evidence. She said, however, that when the Board retired she did not expect it to make a decision on that application. She said she did not address submissions to the Registrar's application because she thought the Board was dealing with her initial procedural application.

65 As to the course that would have followed if the Board had returned and ruled only against the preliminary application, counsel said she would have asked the Board to adjourn in order to bring an application before this Court. She said it was difficult to know what would have occurred if the Board had insisted on proceeding, but one option was to not participate in the hearing any further. Counsel acknowledged that if the allegations in the complaint were made out, from her experience during ten years as a member of the Board the conduct would be viewed as very serious and a reprimand would not be appropriate. If the Board had insisted on proceeding without requiring the Registrar to call evidence and without giving the plaintiff the opportunity of calling evidence, counsel agreed she would not have made the submission that the allegations in the complaint were not sufficiently serious to justify the matter proceeding directly to the Tribunal.

66 As I have indicated, in my opinion the Board's duty to act fairly required that it give the plaintiff a reasonable opportunity to be heard upon whether the inquiry should continue or be terminated and a complaint laid before the Tribunal. The issue as to whether the Board discharged that duty is to be determined by an objective consideration of the proceedings before the Board. In my opinion, viewed objectively the Board discharged its duty by affording the necessary procedural fairness to the plaintiff. The allegations were fully particularised and the plaintiff was well aware of the nature of the application by the Registrar both before and during the hearing. The Board allowed the plaintiff every reasonable opportunity to respond to the Registrar's application. Counsel for the plaintiff did not specifically request the Board to rule on her application as a preliminary matter before ruling upon the application of the Registrar. She did not suggest to the Board that she had further submissions to present if the Board ruled against her preliminary application. Counsel indicated she was resisting the application of the Registrar and argued the case for the plaintiff on the ground that the Board could not properly fulfil its responsibilities without first hearing evidence from the patient. As mentioned, counsel acknowledged during cross-examination that in view of the nature and obvious seriousness of the allegations, she had not intended to submit that the allegations were not sufficiently serious to justify the Board laying a complaint before the Tribunal. There is no suggestion in the transcript that any member of the Board suggested directly or indirectly that the Board would first deal with the application made by the plaintiff and, if it ruled adversely to that application, then provide the plaintiff with a further opportunity to address the Registrar's application. The entire conduct of the proceedings before the Board strongly supports the view that when the Board retired to consider the submissions it was readily apparent that it was intending to rule upon the Registrar's application that the inquiry be terminated.

67 In my opinion, no procedural unfairness occurred. I accept the evidence of counsel for the plaintiff that she did not expect the Board to rule on the application by the Registrar, but in the circumstances of the proceedings as I have outlined them the existence of that belief does not establish that procedural unfairness occurred. That belief was not induced by any conduct on the part of the officer representing the Registrar or the Board (cf Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141). As I have already indicated, in my opinion the proceedings in question must be viewed objectively in order to determine whether procedural unfairness occurred. The fairness of the proceedings is not to be judged against subjective considerations such as the belief of counsel.

68 In expressing the view that the test for determining whether procedural unfairness occurred is objective, I do not exclude the possibility that in exceptional circumstances a court might decide that although no procedural unfairness occurred, by reason of subjective considerations such as a complete misunderstanding of the nature of the proceedings by an unrepresented person the result was so unfair as to require that the court intervene to alleviate the unfairness. However, this is not one of those exceptional cases. The Board discharged its duty to afford procedural fairness and any misunderstanding on the part of counsel for the plaintiff did not result in any unfairness in the particular circumstances of this matter.

69 I turn to the contention that the Board acted without jurisdiction which is based on the proposition that the Board decided to "refer" the complaint before it to the Tribunal rather than deciding to act in the prosecutorial role and to lay a complaint before the Tribunal. It was submitted that the Board has no jurisdiction to "refer" a complaint to the Tribunal. Counsel also suggested the Board was misled by the officer representing the Registrar into acting under s 54(2)(b) rather than s 54(4) of the Act.

70 There is no doubt that in the passage quoted earlier in this judgment, the lay president of the Board referred to a long tradition of the Board treating matters of a serious nature, such as sexual misconduct by a medical practitioner with a patient, as matters appropriate to be "referred" to the Tribunal. It is necessary, however, to examine the context in which that expression was used in order to determine whether the Board decided to refer the existing complaint to the Tribunal or decided it should lay a complaint before the Tribunal.

71 Counsel for the plaintiff commenced her submissions to the Board by referring to both subss (2) and (4) of s 54 of the Act. She spoke of the procedure of the Board laying a complaint before the Tribunal and submitted that before the Board did so it had an obligation to itself further the inquiry by requiring the calling of evidence. As mentioned, she submitted the Board was required to undertake a "mandatory investigation" into the subject matter of the complaint. Although counsel for the plaintiff was under no misapprehension that the procedure for the Board was to lay a complaint rather than refer the matter to the Tribunal, even counsel slipped into the use of a convenient lay term near the end of her submission when she said:

"We say that it is not sufficient for the Board to simply pass the buck, if you like, up to the Tribunal and say 'Well, you sort out what the factual complaints are.' This board, before it completes its inquiry and makes that decision, if indeed that decision is an appropriate one at the end of the day, has a duty we say to ascertain exactly what it is that you're referring to the Tribunal." (my emphasis).

72 The officer representing the Registrar commenced his submissions by suggesting that there were two particular situations covered by s 54. He paraphrased the effect of s 54(4) by saying:

"Where in the course of conducting an inquiry the board considers that the allegations or evidence against the practitioner are sufficiently serious to refer it to the tribunal". (my emphasis).

73 The officer then discussed s 54(2)(b) and correctly referred to the Board laying a complaint before the Tribunal. He followed with a submission that the Act envisaged circumstances similar to those before the Board where the matters raised in the complaint were so serious that the Board reaches the view that "they should go directly to the Tribunal". That submission was followed immediately by a reference to affording the plaintiff the opportunity to be heard as to whether or not the Tribunal ought to "exercise that power and lay a complaint before the Tribunal".

74 The submission continued with reference to the nature of the allegations which the officer contended were "serious enough to warrant the laying of complaints directly before the Tribunal". He submitted it was not appropriate to require the patient to undergo the "double ordeal" of giving evidence and, in conclusion, said:

" my submission is, Mr President, that this is not an appropriate case that the board would want to hear any evidence, and would lay a complaint directly before the tribunal".

75 In reply, counsel for the plaintiff again referred to s 54(2)(b) and on two occasions spoke of the Board laying a complaint before the Tribunal. In particular, she referred to "the very serious step of laying a complaint before the Tribunal". Counsel then used another non-technical expression to describe the process of laying the complaints before the Tribunal:

"We say a drafted charge before this Board could never amount to sufficient knowledge in the respective minds of Board members to decide to put the matter up to the Tribunal". (my emphasis).

76 It is not surprising that a lay person presiding over the Tribunal did not use formal language and described the process as a reference directly to the Tribunal. In the context of the submissions I have discussed, including the use of non-technical expressions to describe the process, the reference to referring the matter directly to the Tribunal does not establish the plaintiff's proposition that the Board decided to refer the existing complaint rather than deciding to lay a complaint before the Tribunal. From a careful consideration of the transcript of proceedings before the Board, I have no doubt that the Board decided to lay a complaint before the Tribunal.

77 In support of the submission that the Board decided to lay a complaint before the Tribunal, the defendant sought to tender an affidavit of a legal practitioner employed in the Crown Solicitor's office which stated that a complaint for laying before the Tribunal was signed by the President of the Board on 28 January 1999. The plaintiff objected to the receipt of the affidavit and, in doing so, observed that the plaintiff did not know what advice had been given to the Board or its President following the hearing and prior to the President signing the complaint. Counsel submitted the plaintiff was entitled to know what had transpired in that period because the Board might have been told they had used the wrong procedure and the signing of a complaint was the manner in which to correct that error. In answer to that proposition, and in response to a suggestion from the Court that some evidence from the Registrar of past practice and procedure may be of assistance, subsequently the defendant tendered an affidavit of the Registrar of the Board, David Harry Wilde, dated 2 August 1999. Mr Wilde was examined and cross-examined.

78 Mr Wilde has been the Registrar of the Board since 1980. On the basis of his evidence I am satisfied that where the Board considers that the allegations are sufficiently serious, the Board has regularly followed the practice of having the Crown Solicitor prepare a complaint which is signed by the President and laid before the Tribunal. I am also satisfied that it has been common practice for Board members, solicitors appearing before the Board and the Registrar to describe the procedure as "referring the matter directly to the Tribunal". I am satisfied the Board has never attempted to place a matter before the Tribunal in any way other than by the laying of a complaint.

79 Mr Wilde gave evidence that following the hearing of 21 December 1998, in accordance with the usual practice he expected the Crown Solicitor would prepare a complaint to be signed by the President on behalf of the Board for laying before the Tribunal. The next communication received from the Crown Solicitor was a letter of 11 January 1999 enclosing three copies of a complaint for signature by the President of the Board. The complaint was signed by the President on 28 January 1999. I accept the evidence of Mr Wilde that he did not receive any other communication or advice from the Crown Solicitor concerning this matter between the hearing of 21 December 1998 and the signing of the complaint on 28 January 1999. In particular, he was not aware of a suggestion that the Board had not decided to lay a complaint before the Tribunal because it had decided to "refer" the matter to the Tribunal until he was approached on 29 July 1999 to provide the affidavit for the purposes of the hearing in this Court. The evidence of Mr Wilde confirmed the view that I had reached based on a consideration of the transcript alone that the Board decided to lay a complaint before the Tribunal.

80 In my opinion the plaintiff has failed to demonstrate that the Board acted without jurisdiction.

81 During the course of the hearing it emerged that the Board did not meet between the hearing of 21 December 1998 and the signing of the complaint on 28 January 1999 by the President. In those circumstances counsel for the plaintiff argued that the Board had not properly discharged its duties by considering the terms of the complaint to be laid before the Tribunal.

82 In all essential respects the complaint signed by the President is in identical terms to the complaint that was before the Board. In my opinion, it is apparent that the Board decided to lay a complaint alleging unprofessional conduct in identical terms to the allegations in the complaint that was before it. The precise wording was, as a matter of practice, finalised by the Crown Solicitor on the instructions of the Board. In my opinion the plaintiff's contention is without merit.

83 As to the proposition that the Board acted pursuant to the wrong sub-section, the plaintiff submitted that the Board was misled by the officer representing the Registrar and incorrectly acted pursuant to s 54(2)(b). In the alternative, he suggested there was at least some confusion as to the basis upon which the Board acted.

84 The plaintiff's contention is at odds with the notice sent by the Board to the plaintiff in advance of the hearing. That notice identified the possibility that, pursuant to s 54(4), the Board might terminate the proceedings and itself lay a complaint before the Tribunal. The notice did not mention s 54(2)(b). During the course of the hearing, although the officer representing the Registrar referred to both subss (2) and (4) of s 54, the essence of his submission was that the Board had power to lay a complaint before the Tribunal where it considered the allegations were sufficiently serious to justify that course. He emphasised the seriousness of the allegations and submitted it was an appropriate matter for the laying of a complaint before the Tribunal without hearing any evidence. In expressing the decision of the Board, the presiding member referred to the tradition of the Board treating matters considered as of a serious nature, such as sexual misconduct, as appropriate to proceed before the Tribunal. The Board obviously addressed the criteria of seriousness as required by s 54(4).

85 In my opinion the plaintiff has failed to demonstrate that the Board misconceived its function or the power that it was exercising. The decision was made in accordance with the provisions of the Act. While the Board did not specifically refer to s 54(4), it addressed the criteria of that sub-section. If members of the Board were confused or in error as to the applicable section of the Act, the error was of no significance. The Board exercised its discretion and did so after addressing the correct criteria specified in s 54(4). This ground of complaint by the plaintiff also fails.