THOMPKINS v SOUTH AUSTRALIAN HEALTH COMMISSION No. SCCIV-01-274 [2001] SASC 147

Mr Geoffrey Anderson is a Senior Pharmacist employed in the Drugs of Dependence Unit within the Department of Human Services. On 16 May 1985, pursuant to s 50 of the Act Mr Anderson was appointed an authorised officer for the purposes of Part 7 of the Act. On 5 September 1997, together with another authorised officer, Mr Anderson attended at the applicant's surgery. He was in possession of a warrant issued pursuant to s 52 of the Act. Mr Anderson and the other officer seized patient notes relating to seven patients, but not notes relating to the patient that had been the subject of the correspondence to which I have referred. According to the affidavit of Mr Anderson he did not seize the notes relating to that particular patient because he was advised that the notes were not at the surgery.

On 13 November 1997, the Commission wrote to the applicant advising him that the Commission had received an allegation concerning a number of prescriptions written by him for a patient, Ms B. Reference was made to previous correspondence warning the applicant of the Commission's concerns that his prescribing or supply of drugs of dependence could be considered irresponsible and that he risked a Prohibition Order being served upon him. Reference was also made to the applicant's knowledge that the Commission and the police were proceeding with legal charges against him relating to his prescription of drugs of dependence. After reference to s 57 of the Act, the letter advised the applicant as follows:

"You are hereby notified that after 28 November 1997, I will provide a report containing the above information to the Health Commission for consideration. The Health Commission may choose to obtain the advice of an expert in the treatment of cough, pain or dependence to assist in its deliberations. If an opinion can be formed that you have prescribed a prescription drug in an irresponsible manner, the Health Commission will consider the serving of a Prohibition Order on you.

It will be recommended that the Prohibition Order prohibits you from prescribing, possessing or supplying drugs of dependence, benzodiazepines and schedule four drugs that contain a drug that is otherwise classed as a drug of dependence (eg codeine containing preparations - Panadeine Forte, Linctus Codeine etc. & dextropopoxyphene preparations - Dolaxene etc).

It will also be recommended that the Prohibition Order does not apply for your treatment of patients while you are acting as an employee of a government hospital and for the treatment of a patient of that hospital.

The authority would not apply to drugs lawfully supplied or prescribed for you by another medical practitioner.

Such a Prohibition Order would have little impact on your employment at Glenside Hospital but would have a significant impact on your privileges as a private general practitioner.

You are invited to provide an explanation regarding your prescribing of codeine linctus or provide a submission to be considered by the Health Commission on your behalf. This may include reports from experts that support your treatment regime. You may also arrange a meeting to present your case in person with your legal adviser. Any explanation, submission or arrangements for an interview must be made before close of business 28th November 1997."

The applicant replied through a letter written by his solicitors dated 12 December 1997. Full details were set out in justification of the applicant's treatment of Ms B and the writing of prescriptions for that patient. The letter concluded with a submission that the management by the applicant was responsible and with a request that the Commission not proceed with the issuing or serving of a Prohibition Order.

By letter dated 15 December 1997 the Commission responded. After reference to matters raised in the letter from the solicitors, the author sought further information relating to the treatment of Ms B to enable the Commission to obtain an expert opinion. The letter sounded a warning as to the likely consequence if the further information was not forthcoming:

"You would be aware that in forming an opinion, the Health Commission would arrive at a decision based on the balance of probabilities. It would be my view that without this additional supportive information, on the information to hand and listed in our previous letter, it appears probable that the Health Commission would view the prescribing to be irresponsible. It would be in your client's interest to ensure the above information is provided for consideration.

Please advise if this additional information can be provided. If it can, it should be received by this office by 16 January 1998."

The solicitors for the applicant replied by letter of 21 January 1998. After setting out a number of matters in support of their client's management of Ms B, the letter concluded with a submission that the management and prescribing had been responsible and appropriate. By letter of 22 January 1998, Mr Anderson wrote that the applicant had not provided any further significant details nor sufficient information upon which the Commission could obtain an expert opinion. The letter concluded:

"As information to substantiate these claims has not been provided, the possibility must be considered that these conditions either did not exist or were minor in nature and the codeine was prescribed for psychiatric reasons. You have provided substantial information regarding her mental state and this will be considered. I will keep you informed of the progress of this matter."

On 29 April 1998 Mr Anderson wrote an internal memorandum recommending that the Commission make a Prohibition Order. According to the affidavit of Mr Anderson, by that time he had formed the view that the prescribing practices of the applicant constituted "a significant and immediate danger to the public". It was his view that the public interest required that the matter be considered by the Commission and appropriate action be taken as a matter of urgency. Mr Anderson's concern had been heightened by correspondence between the Commission and the applicant during March and April 1998. It is unnecessary to refer to the details of that correspondence.

The memorandum of 29 April 1998 was not limited to the applicant's treatment of and prescription of drugs for the patient Ms B. In the memorandum Mr Anderson set out details of prescriptions written by the applicant for a number of other patients and Mr Anderson submitted that the applicant had prescribed identified prescription drugs for each of those patients in an irresponsible manner. Those drugs included drugs that were not the subject of prescription for Ms B. The applicant was not advised of Mr Anderson's concerns relating to his treatment or prescription of drugs with respect to the additional patients and he was not given an opportunity to comment upon the allegations put before the Health Commission in the memorandum of 29 April 1998.

As mentioned, the Commission made the Order on 21 May 1998 and it was served upon the applicant on 28 May 1998. Section 57(5) of the Act gave the applicant a right of appeal to this Court against the Order. The appeal is governed by r 97 of the Supreme Court Rules. As a time limit is not specified by the Act, the applicant had 14 days within which to institute the appeal: r 97.04. The applicant did not file the notice of appeal until approximately two years and eight months after the Order was served upon him.

The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 480 McHugh J. It is well settled that among the matters to be considered are the length of the delay, the explanation for the delay, any prejudice suffered by the other party and whether there is an arguable case on appeal. As Kirby J said in Jackamarra v Krakouer (1998) 195 CLR 516 at 539, the discretion "should not be trammelled by a rigid set of rules". His Honour pointed out that it is for the party seeking the extension of time to persuade the court that it should be granted and that such persuasion will usually depend upon the provision of an acceptable explanation for the delay. In addition to the factors I have identified, Kirby J identified as relevant considerations such as whether the delay was intentional or contumelious or merely the result of a bona fide mistake. Similarly, it is relevant to inquire whether the delay is that of the party or the party's legal advisers.

In support of his application for an extension of time, the applicant put forward a number of matters to explain the delay in filing the notice of appeal. Those matters may be summarised as follows:

(i) When served with the Order in May 1998, the applicant was in the process of defending a large number of criminal charges that alleged breaches of s 33 of the Act. The applicant was advised by his solicitors that seeking to appeal against the Order lacked utility until those charges were finalised. The applicant believed that a conviction for an offence against s 33 would provide "indisputable grounds" for the Commission to issue a Prohibition Order against him. It was not until 9 July 1999 that the criminal charges were resolved when the Director of Public Prosecutions entered a nolle prosequi with respect to each charge.

(ii) After the criminal charges were withdrawn, in accordance with the applicant's instructions to his solicitors, negotiations commenced with the Commission in an effort to persuade the Commission to reconsider its attitude and to exercise its power to revoke the Order. Those negotiations were opened by a letter of 27 July 1999 from the applicant's solicitors to the Commission. In addition, particulars were sought as to the basis upon which the Order had been imposed. The letter included a statement that the applicant had given instructions that if the Order was not revoked he would institute an appeal to the Supreme Court. Correspondence flowed between the Commission and the applicant's solicitors from July 1999 to June 2000.

The affidavit of the applicant does not refer to any advice received by the applicant concerning the institution of an appeal while negotiations were continuing, nor does it state whether the applicant made a conscious decision in this regard.

(iii) The issue of revocation of the Order was not the only matter engaging the time of the parties. In April 2000 the applicant was advised that the Commission had made a complaint to the Registrar of the Medical Board alleging possible professional misconduct by the applicant in respect of a number of patients treated by him. It appears that those patients include the patients that were the subject of the internal memorandum of 29 April 1998.

(iv) The correspondence between the Commission and the applicant's solicitors ceased in June 2000. The Commission had suggested it was appropriate for further consideration of the Order to await completion of the Medical Board investigation and any proceedings that might follow. However, the Commission also indicated it was prepared to offer the applicant a hearing at which he could respond to concerns regarding his prescribing practices, including those which led to the Order. By letter of 21 June 2000 the applicant's solicitors indicated they would seek instructions and sought a response to an earlier request concerning the delegation of powers to Mr Anderson and to Miss Christine Charles who had signed the Order in May 1998. Not surprisingly, the applicant did not take up the Commission's offer. He would have been discussing the matters that were the subject of the investigation by the Medical Board.

(v) In December 2000 the applicant lodged an application for leave to serve an application for judicial review in respect of the Order. Apparently the Crown Solicitor suggested it was inappropriate to pursue such an application before exhausting any possible rights of appeal. The notice of appeal was filed on 25 January 2001.

The affidavit of the applicant does not seek to explain the delay from June to December 2000.

Although the applicant could have instituted an appeal prior to the resolution of the criminal charges, in my opinion he did not act unreasonably in accepting the advice from his solicitors that instituting an appeal while the criminal charges were pending lacked utility. If an appeal had been instituted during that time, it would have been adjourned until the criminal charges were resolved. From a practical point of view, therefore, the failure to institute the appeal prior to July 1999 did not delay the course of the appeal.

The situation was different after the criminal charges were withdrawn in July 1999. The applicant's solicitors were alert to the question of an appeal. The statement was made in the letter of 27 July 1999 that if the Order was not revoked they had instructions from the applicant to institute an appeal. There was no impediment to the institution of an appeal other than tactical considerations which might have led the applicant to the view that the institution of an appeal could hamper the prospects of successfully negotiating a revocation of the Order.

In his affidavit, the applicant has put forward a "submission" that an appeal could not reasonably be contemplated until June 2000 when the avenues of negotiation failed to reach a satisfactory resolution. The affidavit is worded carefully. It is not an attempt to provide an explanation for the delay since July 1999. The applicant has chosen not to disclose any advice that he received as to whether an appeal should have been instituted while negotiations were continuing with the Commission. He has chosen not to disclose whether he specifically addressed his mind to that issue and whether he made a conscious tactical decision not to institute an appeal for fear of hampering the negotiations.

From all the circumstances and correspondence, including the content of the letter of 27 July 1999, I am satisfied that the applicant considered his options and made a conscious decision not to appeal while negotiations were in progress.

In addition, the applicant has not attempted to explain the delay from the cessation of correspondence in June 2000 until December 2000 when the application for judicial review was filed. There is no mention of that period in the applicant's affidavit.

Counsel for the applicant submitted that part of the delay was explicable on the basis that between July and December 1999 the applicant was seeking particulars of the basis upon which the Order had been made. The first request was made in the letter of 27 July 1999. The Commission responded by letter of 12 August 1999 indicating that the applicant's solicitors were in possession of files held by the Commission in relation to the matter and were familiar with the reason for the Order. After further correspondence, by letter of 31 December 1999 on behalf of the Commission, the Crown Solicitor advised that the decision was based on the information contained in the internal memorandum dated 29 April 1998.

The applicant came into possession of a copy of the memorandum dated 29 April 1998 while the criminal charges were pending against him. Although he did not receive formal confirmation that the Order was based upon that memorandum, it must have been apparent to the applicant and his solicitors that the memorandum was at least a significant part of the material upon which the Commission relied. In particular, by letter of 12 August 1999 the Commission specifically referred to its files which the applicant's solicitors had in their possession. In my opinion, the issue of particulars does not provide a satisfactory explanation for the delay from July to December 1999. In addition, after the applicant received a copy of that memorandum from his solicitors in January 2000, he was fully aware of the basis upon which the Order had been made. There can be no suggestion that a lack of particulars provides an explanation for the delay after January 2000.

As to whether the applicant has an arguable case on appeal, counsel for the applicant submitted that the applicant had established a strong case that the Commission was obliged to afford procedural fairness to the applicant and that it had failed to do so. The respondent did not contend that the applicant did not have an arguable case in this regard.

It is unnecessary to canvass the issue of procedural fairness at any length. The Commission was performing an administrative function and the Order made by the Commission adversely affected the applicant's rights and interests. It had an immediate and adverse impact upon the preservation of his livelihood and reputation. As a direct consequence of the Order the applicant was dismissed from his position as a Registrar in Psychiatry at Glenside Hospital. There is nothing in the Act which manifests an intention on the part of the legislature to exclude a duty on the part of the Commission to afford procedural fairness to the applicant.

As to whether the Commission failed to afford the required procedural fairness, the applicant was not advised of the basis upon which it was recommended to the Commission that a Prohibition Order be made. He was not given an opportunity to respond to allegations in the memorandum of 29 April 1998 adverse to the applicant's prescribing practices with respect to numerous patients. In addition, the Order imposed a wider ban than the proposed order about which the applicant was warned in the letter of 13 November 1997. The applicant was not given the opportunity to comment upon the proposal to impose a wider ban. Finally, whereas the letter of 13 November 1997 suggested that the proposed order would not apply to the treatment of patients in a government hospital while the applicant was acting as an employee of the hospital, the Order contained no such limitation.

I have not endeavoured to canvass every issue about which the applicant complains of a lack of procedural fairness. The matters to which I have referred are sufficient to demonstrate that the applicant has good prospects of establishing that the Commission owed a duty of fairness and failed to afford to the applicant the procedural fairness that was required in the particular circumstances: Kioa and Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550 at 582-585 Mason J and Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596.

A determination that the applicant has good prospects of success with respect to the failure to afford procedural fairness does not necessarily lead to a conclusion that he has good prospects of succeeding on the appeal. In this context it is necessary to examine the nature of the appeal. If it is an appeal in the strict sense, the failure to afford procedural fairness would almost inevitably result in an allowing of the appeal. However, if it is an appeal de novo, this Court would hear the matter afresh and the failure of the Commission to afford procedural fairness to the applicant would be of little significance.

In making the Order the Commission acted pursuant to s 57 of the Act. At that time s 57 was in the following terms:

(a) has been convicted of an offence against any other provision of this Act;

(b) has contravened or failed to comply with a condition of a licence, authority or permit granted under this Act;

(c) has, in the opinion of the Health Commission, been supplying, prescribing or administering a prescription drug in an irresponsible manner,

the Health Commission may, by notice in writing given personally or by post to that person, require him to satisfy the Health Commission, within a period specified in the notice (being not less than three weeks), that an order under subsection (2) should not be made by the Health Commission.

(2) Where a person to whom a notice under subsection (1) has been given fails to satisfy the Health Commission within the specified period that an order should not be made under this subsection, the Health Commission may, by order, prohibit the person from manufacturing, producing, packaging, selling, supplying, prescribing, administering, using or having in his possession any substance or device specified in the order.

(3) The Health Commission shall publish an order made under sub-section (2) in the Gazette and shall cause a copy of the order to be served personally or by post upon the person to whom it applies.

(4) A person shall not contravene an order made under this section.

Penalty: Two thousand dollars or imprisonment for two years.

(5) A person to whom an order under subsection (2) applies may appeal to the Supreme Court against that order.

(6) Where an appeal has been instituted under this section against an order of the Health Commission, the order shall continue to have effect unless, upon application to the Supreme Court, the Court orders that the order be suspended until the appeal is determined or withdrawn.

(7) The Supreme Court may, on an appeal under this section, quash, vary or affirm the order the subject of the appeal."

Section 57 speaks only of an "appeal". Rule 97.17 of the Supreme Court Rules provides that an appeal under r 97 is to be by way of "rehearing". However, as Cox J pointed out in Wigg v Architects Board of South Australia (1984) 36 SASR 111 at 117, if an examination of the language and policy of the Act granting the right of appeal leads to a conclusion that Parliament intended to create a particular kind of appeal, a Supreme Court rule cannot be applied to define the nature of the appeal. In addition, classifying an appeal as an appeal by way of "rehearing" does not in itself provide an answer as to the nature of the appeal.

In Wigg v Architects Board, Cox J undertook a very helpful examination of the different types of appeal that may be created with respect to the decisions of judicial and administrative bodies. His Honour identified three types of appeal. First, an appeal "strictly so called" in which the question is whether the judgment complained of was right when given and there is no issue of introducing fresh evidence in the appeal court. All that is decided is whether the court below came to the right decision on the material that was before it.

The second type of appeal identified by Cox J is the appeal by way of rehearing. His Honour described this appeal as follows (p 111):

"This is a rehearing on the documents, but with a special power to receive further evidence on the appeal. The latter power is necessary, because the question on a rehearing of this kind is whether the order of the court below ought to be affirmed or overturned in the light of the material before the appeal court at the time it hears the appeal."

The third type identified is an appeal de novo in which the appeal court hears the matter afresh. Regardless of which party appeals, the appeal is conducted as an original cause and all the evidence is given afresh unless the parties agree to the material used before the original body being used on the appeal. The judge who hears such an appeal will determine the question upon the material presented before the judge and will not be limited in any way by the decision that has been made by the body appealed from.

"Which type of appeal is given by a particular Act will depend upon its construction. The use of the word "rehearing" will not be decisive, because that is a word to which different meanings have been given ... . It will be a matter of discerning Parliament's intention from an examination of the legislation as a whole." (footnotes omitted)

Cox J also noted that a statutory appeal procedure will not always fit easily into one or other of the three categories that he discussed. It is open to a legislature to create any kind of appeal, including a hybrid that exhibits features of more than one of the traditional categories.

When the legislature gives a court the power to review or hear an appeal against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction: re Coldham & Ors Ex parte Brideson (No.2) [1990] HCA 36; (1990) 170 CLR 267 at 273. The principles by which this issue is to be determined and factors relevant to a determination were discussed by Mason J in Builders Licensing Board of the Sperway Constructions (Syd.) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616. His Honour said (p 621-622):

"Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. Despite some suggestion in argument to the contrary, I do not read Ex parte Australian Sporting Club Ltd.; Re Dash [(1947) [1947] NSWStRp 11; 47 SR (NSW) 283] as enunciating such an absolute rule. There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo and I exclude for present purposes the case of an appeal to a federal court exercising the judicial power of the Commonwealth under Ch.III of the Commonwealth Constitution. The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.

On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.

But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing."

In the matter under consideration, a number of the factors identified by Mason J as favouring a hearing de novo are present. There is no provision for a hearing at first instance or for a record to be made of what occurred before the Commission. The rules of evidence had no application before the Commission and the Commission was not required to furnish reasons for its decision. As appeal courts considering the duty of judicial bodies to give reasons have consistently observed, the absence of reasons poses great difficulties for an appellate court in carrying out its function on an appeal strictly so called.

In Koh v The State of South Australia (1989) 154 LSJS 38, the Full Court was concerned with the nature of an appeal to the Teachers Appeal Board from a decision of the Minister of Employment and Further Education dismissing the appellant from the teaching service. King CJ made the following observations (pp 43-44):

"Where disciplinary powers are vested in a Minister or an administrator, it is to be expected in the ordinary course of affairs that they will be exercised in accordance with administrative rather than quasi judicial procedures. Proper investigations must be made but they need not proceed by way of formal hearing. Natural justice must be observed and this requires that the person in jeopardy have fair notice of what is alleged against him and a reasonable opportunity to answer the allegations. It does not imply that an investigation which is conducted by a Minister or an administrative official and not by a tribunal must necessarily afford to the person in jeopardy an opportunity to confront and cross-examine the persons making the allegations against him; O'Rourke v. Miller (1985) 58 A.L.R. 269. It is noteworthy that neither the Minister nor the Director-General is given power to compel attendance of witnesses, to administer an oath or to compel answers to questions. It seems to me therefore that the Act does not contemplate a hearing of a formal or quasi judicial type before the Director-General or his delegate such as occurred in the present case, but rather an investigation by means of administrative methods and procedures leading to the disciplinary decision by the Director-General or the Minister. Nothing which I have said, of course, is intended to convey that the Director-General may not discharge his responsibilities in the way in which he chose to discharge them in the present case.

The importance of the foregoing is that the hearing before the Teachers Appeal Board may well be the first opportunity provided to the alleged offender to confront the witnesses against him and to cross-examine them. It is certainly his first opportunity for a hearing at which the attendance of witnesses and the production of books and papers can be compelled, oaths can be administered and answers can be required; see Education Act section 50. These are strong indications that the appeal to the Teachers Appeal Board is by way of rehearing de novo. That type of appeal is the norm where the appeal is to a tribunal from the decision of a Minister or an administrative official who is not expected to conduct a formal or quasi-judicial hearing. Appeals to tribunals from such decisions are to be regarded, in my opinion, prima facie as appeals by way of rehearing de novo."

The considerations to which King CJ referred are applicable to the matter under consideration. The Commission did not have the power to compel the attendance of witnesses or to compel answers to questions. The Commission was involved in an investigation by means of administrative methods and procedures which led to the disciplinary decision by way of the Order. The appeal to this Court provides the applicant with the first opportunity to confront witnesses and cross-examine them. It is the first occasion on which the attendance of witnesses and the production of relevant documents can be compelled.

Notwithstanding the presumption and the existence of factors to which I have referred that favour an appeal de novo, counsel urged that I should find that the proper construction of the Act leads to a view that the appeal is not an appeal de novo. He pointed out that the subject matter of the appeal, namely, the opinion of the Commission, would involve the court in very complex questions on a subject matter with which the court is not readily familiar. However, while that consequence is a relevant consideration, and it provides a ready explanation for the reluctance of judges in some of the decisions to which I have been referred to find in favour of an appeal de novo, it cannot override the obvious intent of the legislation.

I was referred to a number of other authorities which it is unnecessary for me to discuss. Each decision was made in the context of the particular legislation under consideration. In my opinion, bearing in mind the principles and factors emerging from the authorities that I have mentioned, the appeal conferred by s 57 against a decision of the Commission is an appeal de novo.

As mentioned, it follows from the conclusion that the appeal is an appeal de novo that the failure of the Commission to afford procedural fairness to the applicant is of little significance. On the appeal, the parties will not be confined to the material presented to the Commission. The parties will be at liberty to call evidence to support their respective cases. The Court will be required to make its decision afresh. In these circumstances this Court faces an obvious difficulty in attempting to assess whether the applicant has an arguable case on appeal with respect to the merits of the Order.

During submissions counsel for the applicant agreed that, for the purposes of the application to extend time, he was not attacking the merits of the decision. However, he indicated that if the appeal was more than an appeal in the strict sense for which he had contended, then it was likely his client would wish to lead evidence to justify the various prescriptions which had been relied upon by the Commission in arriving at its opinion that the applicant had been prescribing prescription drugs in an irresponsible manner. As the applicant was relying upon the proposition that the appeal to this Court is an appeal in the strict sense, and on that basis had not placed any material before the court as to the merits of the Order, I considered the applicant should be given notice of my view that the appeal is an appeal de novo and the opportunity of placing before the court material relevant to the merits of the decision to impose the Order.

The applicant and his counsel were advised of my view that the appeal is an appeal de novo. Having been informed of that view, the applicant presented supplementary submissions concerning that issue. For the first time counsel argued that when s 57 of the Controlled Substances Act is viewed in conjunction with the provisions of the Medical Practitioners Act 1983, this Court should take the view that it is unlikely that the legislature intended that an appeal pursuant to s 57 of the Act be an appeal de novo. As the Medical Practitioners Act provides a scheme for the making and determination of complaints against medical practitioners, counsel contended that it is unlikely that the legislature intended that the court on appeal from a s 57 order should conduct a full hearing with respect to the merits.

Counsel for the applicant acknowledged that irresponsible prescribing justifying a prohibition order will not necessarily lead to a complaint pursuant to the Medical Practitioners Act. In addition, the power of the Commission to impose a prohibition order is not limited to circumstances of irresponsible prescribing of prescription drugs. Section 57(1)(a) and (b) relate to other types of circumstances which can justify the making of a prohibition order and which may not result in a complaint under the Medical Practitioners Act.

Having considered the supplementary submissions, I remain of the view that the appeal is an appeal de novo.

At the conclusion of the supplementary submissions I advised the parties that I remained of the view that the appeal is an appeal de novo. In response to my invitation, counsel indicated that the applicant did not seek to place any material before the court concerning the merits of the Order.

Although the applicant has not identified a specific reason for not putting forward material attacking the merits of the Order, it is readily apparent that he is placed in a difficult position. The Medical Board is currently conducting an inquiry concerning the applicant's prescribing practices. Those practices include the prescribing practices that were the subject of the memorandum of 29 April 1998. If the applicant provides a response to the allegations in the memorandum of 29 April 1998 in order to demonstrate that he has an arguable case on appeal, that material will become available to the Medical Board.

Notwithstanding the applicant's difficult position, I am required to address the question as to whether he has an arguable case on appeal. In view of the very lengthy delay in respect of which the applicant seeks the indulgence of this Court, the merits of the proposed appeal are a significant factor. In considering this issue I have assumed that on appeal the Commission will bear the onus of justifying the making of the Order.

The Commission relied upon the information contained in the memorandum of 29 April 1998. That memorandum asserts a number of facts and opinions. The assertions are not on oath and have not been tested.

In respect of one of the patients, Ms B, an indication of the applicant's version is found in the correspondence between the applicant and the Commission. As the solicitors for the applicant observed in their letter of 21 January 1998, it is apparent that there was a considerable difference in "perspective and approach" between the applicant's management of Ms B and the views expressed by Mr Anderson in earlier correspondence.

The memorandum asserts that the applicant continued to prescribe a particular drug for Ms B after he was told by the Commission that he was not authorised to do so. Reference is made to expert opinions that the applicant's conduct was inappropriate. The applicant has not put any material before this Court that amounts to a denial that be prescribed without authority. There is nothing to suggest that the memorandum does not accurately reflect the expert opinions relied upon by the Commission. Counsel for the applicant did not suggest that there is any basis for a conclusion that the Commission fell into error or that the making of the Order was unreasonable.

I have considered the memorandum in respect of individual patients and from an overall perspective. If accepted, the allegations and opinions would provide a compelling case for a prohibition order. There is nothing in the content of the memorandum or its manner of presentation to suggest unreliability or exaggeration.

As to the issue of prejudice to the respondent by reason of the delay, counsel for the appellant pointed out that the respondent is unlike an ordinary litigant who has a vested interest in the judgment and there is no impact on third party rights. However, on an appeal de novo, it is likely that Mr Anderson and the experts who gave opinions relied on by the Commission will be required to give oral evidence. They will be placed at a disadvantage.

In summary, in my opinion the applicant has provided a reasonable explanation for the delay from May 1998 to July 1999. However, as previously indicated, I am satisfied that the applicant considered his options and made a conscious decision not to appeal while negotiations were in progress from July 1999 until June 2000. The applicant has not provided a satisfactory explanation for that period of delay. There is no explanation for the delay from June until December 2000. In those circumstances, although the prejudice to the respondent is not as significant as it would have been if the respondent was a private litigant with a specific interest in the judgment, it is for the applicant to persuade the court that granting an extension is necessary in order to do justice between the parties.

The applicant has failed to demonstrate that he has an arguable case on appeal. I have taken into account the difficult position in which the applicant is placed by virtue of the inquiry by the Medical Board. However, as the very lengthy delay has been caused by the applicant's deliberate choice not to seek to appeal at an earlier time, in the face of an apparently compelling case for a prohibition order it would be inappropriate for this Court to permit an extension of time without any material from the applicant suggesting that he has some prospects of succeeding on appeal.

The application for an extension of time within which to appeal is refused.