XD v Medical Practitioners Board

Supreme Court of Victoria|2002-08-23|Before: Bongiorno J.

Administrative law - Tribunals - Supervisory jurisdiction of Supreme Court - Abuse of process - Principles to be applied - Old complaints - Lack of specificity - Joinder of complaints - Medical Practice Act 1994

On 14 August 2002 the Court ruled[1] that a panel of the Medical Practitioners Board of Victoria appointed pursuant to s 46 of the had no jurisdiction to refuse to conduct a formal hearing into complaints of unprofessional conduct against the plaintiff on the ground that such formal hearing would constitute an abuse of process. This judgment was sufficient to dispose of two of the claims made by the plaintiff in his originating motion issued 11 December 2001. It did not, however, determine claims for relief relating to the joinder of complaints on the formal hearing made in the originating motion nor the claim made in his writ seeking a stay of the formal hearing in respect of certain allegations made against him, issued against the same defendants on the same day. Accordingly, on 14 August 2002 the Court heard argument on the remaining issues and now determines them as set out hereunder. The procedural details of this case are set out in the judgment of 14 August to which I have referred and need not be repeated here.

The two remaining issues arising out of the uncompleted proceedings may be generally expressed as follows:

1. Should this Court, in the exercise of its supervisory jurisdiction over the Medical Practitioners Board of Victoria and the Panel make orders staying a formal hearing in respect of certain of the allegations made by one of two complainants (Ms A) against the plaintiff on the ground that to permit such formal hearing to proceed would involve an abuse of process? (The abuse of process question.) 2. In any event should the Board and the Panel be prevented from conducting a formal hearing into the allegations made by each of the complainants (Ms A and Ms B) against the plaintiff together? (The severance question.)

The defendants conceded at the outset of this argument that this Court had jurisdiction to make appropriate orders preventing abuse of process in the performance of the functions assigned to each of them by the Act. This concession was presumably made on the basis of the High Court's judgment in Walton v Gardiner[2] where the majority (Mason CJ, Deane and Dawson JJ) considered it to be:-

". . . now settled that the Court of Appeal's supervisory jurisdiction with respect to 'the administration of justice in New South Wales' extends, in the absence of legislative intervention, to the making of an order staying proceedings in the (Medical) Tribunal on the ground that they constitute an abuse of the Tribunal's process."

The Court referred to s 23 Supreme Court Act 1970 (NSW) as the constitutional foundation for this jurisdiction in New South Wales. The equivalent Victorian provision is s 85(1) Constitution Act 1975 which creates this Court as ". . . the superior court of Victoria with unlimited jurisdiction."[3] This Court exercises the jurisdiction to which the High Court was referring in this State.

By reason of the defendants' concession the only issue to be determined in order to answer the question posed is whether the conceded jurisdiction should be exercised in this case. In order to answer that question it is necessary to examine the nature of the supervisory jurisdiction and its method of exercise.

The nature of this Court's jurisdiction to make orders in respect of proceedings in an inferior court or tribunal (absent rights of appeal conferred by statute), whilst originally exercised through the issue of prerogative writs is now exercised in a more general and flexible manner.[4] It is derived from the jurisdiction to control inferior decision makers which the Court of Kings Bench at Westminster traditionally exercised and which the courts which have succeeded them have inherited.[5]

The majority of the High Court in Walton v Gardiner to which I have already referred, discussed the jurisdiction of a superior court to exercise a supervisory jurisdiction over inferior courts or tribunals in terms of a superior court's jurisdiction to supervise its own procedures. They said[6]:-

"The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness."

They instanced proceedings which were doomed to failure, those instituted in an inappropriate forum and those which unjustifiably sought to re-litigate an already disposed of question as examples of situations where the jurisdiction would arise. They cited Lord Diplock in Hunter v Chief Constable of the West Midlands Police[7] who described the jurisdiction as being:-

". . . the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people."

In discussing the extent of the jurisdiction their Honours referred to Jago v District Court (NSW)[8] as supporting the proposition that, in respect of criminal proceedings at least, a court's power to protect itself from abuse of process is not limited to traditional notions of abuse of process but extends to any case in which the processes of the court are being employed in a manner which gives rise to unfairness. They adopted and approved a passage in the judgment of Gaudron J in Jago in the following terms:-

"In her judgment in Jago (1989) 168, CLR at 74, Gaudron J stressed that the power of a court 'to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.' Her Honour added the comment (1989) 168 CLR at 74, 'that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand.' Subsequently in her judgment (1989) 168, CLR at 77, her Honour made clear that, subject to some refinements which she identified, that comment was also appropriate to be adopted in relation to criminal proceedings."

In applying the principle discussed to a disciplinary tribunal with functions analogous to those of the first defendant the majority in Walton v Gardiner said[9]:-

"In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective - i.e. protective of the public - in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds. In particular, in a context where the disciplinary power of the Tribunal extends both to the making of an order permanently removing a medical practitioner from the Register with consequent loss of entitlement to practise and to the imposition of a fine of up to $25,000 (See Medical Practitioners Act 1938 (NSW) s 32R(1)(g) and (h)), there is plainly an analogy between the concept of abuse of a court's process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings. In that regard, it is relevant to mention that we do not read any of the provisions of the Act as expressly or impliedly cutting down the scope of the general supervisory jurisdiction of the Court of Appeal to stay proceedings in the Tribunal on abuse of process grounds."

It might be observed that the comment in the last sentence of the quoted passage probably applies a fortiori in Victoria as any limitation on this Court's jurisdiction can only be lawfully imposed by the Parliament if it observes the manner and form requirements of s 85 of the Constitution Act 1975**.** It is not suggested that those parts of the Medical Practice Act 1994 dealing with the investigation of unprofessional conduct were enacted in compliance with such manner and form requirements.

The extent of the supervisory jurisdiction of this Court thus clearly established, it is necessary to examine how it is to be exercised in any given case. Again, the majority judgment in Walton v Gardiner provides the principle to be applied where the body being subjected to the supervisory jurisdiction is one which exists to protect the public from incompetence and professional misconduct on the part of medical practitioners. The majority said:-

"As was pointed out in Jago (see, in particular, (1989) 168 CLR at pp 30-34, per Mason CJ; pp 59-61, per Deane J; p 72, per Toohey J; pp 76-78, per Gaudron J) the question as to whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners."

In applying the weighing process referred to by the High Court in Walton v Gardiner to the facts of the present case it is not irrelevant that, as this Court determined in its earlier judgment in this case[10], the Panel is required to engage in an investigative process the end result of which may be a finding that the practitioner has engaged in unprofessional conduct of a serious or non-serious nature, a finding which exonerates him completely or a declaration that it is unable to make any of those findings on the evidence before it which it accepts. Of paramount importance from the public interest point of view is not that a finding of any particular type may be made for or against a practitioner but rather that a complainant's allegations are, in fact, properly investigated. It is in a proper investigation, impartially carried out, that the public interest lies. There is a very heavy burden indeed imposed upon a practitioner who seeks, from this Court, an order which would stop such an investigation from being held.

In the original Draft Notice of Formal Hearing served upon the plaintiff in these proceedings in about May 2001 the following allegations were made against him by the complainant referred to as Ms A:-

"(1) At Springvale, between 27 March 1980 and 20 July 1981 during a consultation with your patient Ms A, in which you performed an internal examination, you engaged in conduct which was inappropriate and/or unnecessary for the purpose of the consultation.

After completing the internal examination you left your finger/s in her vagina in the one spot and repeatedly bent your finger/s up and down.

(2) At Springvale, between 27 March 1980 and 20 July 1981, on an occasion other than referred to in allegation 3A(1), during a consultation with your patient Ms A, in which you performed an internal examination, you engaged in conduct which was inappropriate and/or unnecessary for the purpose of the consultation.

(a) After completing the internal examination you left your finger/s in her vagina in the one spot and. repeatedly bent your finger/s up and down.

(b) While your finger/s was/were in her vagina you asked her `if it felt good'.

(3) At Springvale, between 27 March 1980 and 20 July 1981 on an occasion other than referred to in allegations 3A(1)&(2), during a consultation with your patient Ms A, in which you performed an internal examination, you engaged in conduct which was inappropriate and/or unnecessary for the purpose of the consultation.

(a) After completing the internal examination you left your finger/s in her vagina in the one spot and repeatedly bent your finger/s up and down.

(b) After you finished the internal examination you indicated that you enjoyed it.

(4) At Springvale, between 27 March 1980 and 4 August 1980 on two or occasions, during consultations with your patient Ms A you embraced her and kissed her on the lips.

(5) At Springvale, on an occasion between 8 June 1981 and 31 August 1981, during a home consultation with your patient, Ms A, you had sexual intercourse with her.

(6) At Springvale on or about 31.March 1984, during a consultation with your patient, Ms A, you put your penis into her mouth."

Although the plaintiff's application to the Panel to stay further proceedings in respect of those allegations set out in paras A(1), (2) and (3) above was unsuccessful in that the Panel correctly held that it had no power to grant such a stay, it did determine that for reasons relating to the vagueness of the allegations, their age and their lack of specificity the Notice should be amended in certain ways which it specified. Certain amendments were effected after the Panel's ruling and an amended Notice served upon the plaintiff which detailed Ms A's allegations as follows.

"(1) At Springvale between 1 July 1978 and 31 December 1981, during consultations with your patient, Ms A, in which you performed internal examinations, you engaged in conduct which was in appropriate and/or unnecessary for the purpose of the consultations.

(a) After completing the internal examination you left your finger/s in her vagina in the one spot and repeatedly bent your finger/s up and down.

(b) While your finger/s was/were in her vagina you asked her `if it felt good'.

(2) At Springvale between 1 December 1979 and 31 July 1980 during consultations with your patient Ms A, you embraced her and kissed her on the lips.

(3) At Springvale on an occasion between 1 August 1983 and 2 December 1983, during a home consultation with your patient, Ms A, you had sexual intercourse with her.

(4) At Springvale on or about 31 March 1984, during a consultation with your patient, Ms A, you put your penis into her mouth."

In his statement of claim in the proceeding commenced by writ the plaintiff seeks a declaration that the hearing and determination by the Panel of the allegations contained in paras A(1), (2) and (3) in the first Notice and/or A(1), (2), (3), (4) and (5) in the amended Notice would be an abuse of process, and an order staying the hearing and determination of those allegations. It is not clear why the plaintiff's claim extends to the original allegations as it can be assumed, I think, that they have now been irretrievably superseded by those in the amended Notice. In any event, it is the allegations in the amended Notice with which the Court is now concerned in determining this matter; the first defendant itself having already determined that those in the original Notice were defective and in need of amendment.

Although no affidavit was filed nor evidence given viva voce by the plaintiff in either of the proceedings before this Court there was no dispute between the parties that he had, at all times, emphatically denied all of Ms A's (and, for that matter, Ms B's) allegations of impropriety. In a letter to the first defendant written on 12 July 1999 he denied Ms A's allegations and said that he now had no medical records of his attendances upon her such that he could verify those attendances or what they were for.

In fact the plaintiff was subsequently able to produce attendance cards for Ms A, but they recorded no more than a series of consultation dates between March 1979 and March 1984 without any detail as to what those consultations were for or what treatment was administered. He has constantly asserted that Ms A's medical records must have been transferred to some other medical practice at her request. They have never been located.

In the course of investigating this matter pursuant to the Act, the second defendant has accumulated a large number of documents consisting of statements by Ms A, statements by others who may be able to provide relevant evidence, extensive medical records from other doctors and hospitals who have treated Ms A and internal documents generated by the second defendant itself. Although all of these documents (quite properly) have been made available to the plaintiff they do not enable him (or Ms A and the defendants for that matter) to determine with any degree of specificity or certainty what he treated Ms A for on any particular consultation date. Thus the propriety, for example, of the performance by him of internal pelvic examinations on the occasions Ms A alleges misconduct on his part, cannot be assessed. Ms A is able to provide, for the most part, only approximate ranges of dates between which she says certain acts of misconduct occurred. She is, however, able to describe such acts, at least generically.

When the Panel considered the plaintiff's application to it to stay its formal hearing into the allegations in paragraphs A(1) to (3) of the original Draft Notice of Formal Hearing it recognised that the charges made in the Draft Notice involved a lack of specificity with respect to when the alleged misconduct occurred, and a lack of particulars as to what each act of misconduct on each alleged occasion consisted of. It noted that all Ms A's allegations related to events which allegedly occurred a very long time ago. It recognised the difficulty faced by the plaintiff by allegations in this form and thus (in effect) ordered that an amended notice be served on him; such amendments to take into account the Panel's comments as to the defects it considered existed in the original notice. It was this direction from the Panel that resulted in the Amended Notice of Formal Hearing being served with substantial changes to Ms A's allegations, principally with respect to the date ranges between which certain acts of misconduct were alleged to have occurred.

In this Court, Mr Forrest, Q.C. for the plaintiff has submitted that even with the charges against his client formulated as in the Amended Notice any attempt to conduct a formal hearing to investigate those charges would constitute an abuse of process such that this Court ought to prevent such formal hearing occurring. He says it would be unfair to his client, in the sense of being unjust, to require him to defend these charges having regard to his lack of effective records and the delay by the complainant (and the second defendant) in prosecuting the matter promptly. He also says that the allegations are still vague in their form. With respect to the allegation of intercourse (A(5)) he makes two further complaints. He says that the delay in making an allegation that intercourse occurred has prevented any medical examination of Ms A being effective to either verify or refute her allegation and he says that the failure of the charge to specify whether the intercourse alleged was consensual or not also prejudices the plaintiff's defence of it, echoing a similar criticism made by the Panel in its earlier ruling.

The defendants contend that the onus rests upon the plaintiff to establish the basis for the granting of a permanent stay which, they say, should only be granted in "exceptional cases" or "extreme circumstances". They rely upon the acceptance by the High Court in Walton v Gardiner[11] of statements to this effect in the judgments of Gleeson CJ and Kirby P in that case when it was before the Court of Appeal[12]. They say that a stay of proceedings to prevent oppression or unfairness ought not be grounded on mere presumptive prejudice. There must be a fundamental defect going to the root of the hearing of such a nature that nothing can relieve the practitioner from its unfair consequences.

With respect to the issue of delay itself the defendants submit that the delay may work in the plaintiff's favour, having regard to the fact-finding process in which the Panel must engage in order to carry out its statutory function. They say that the absence of the plaintiff's clinical notes are not as significant as he suggests and a medical examination of Ms A would have only been helpful in determining the truth of her allegations had it occurred virtually immediately after the sexual intercourse which she alleges took place.

The defendants contest the plaintiff's allegation of vagueness and lack of specificity in Ms A's complaints as particularised in the Amended Notice of Formal Hearing, saying that they are not vague or lacking in specificity and, in any event, vagueness and lack of particularity has not been recognised in any of the abuse of process cases as creating "incurable prejudice" or a "fundamental defect" which cannot be cured by appropriate procedural directions.

The exercise in which this Court must engage to determine whether a stay is justified in this case requires it to balance the disadvantage flowing to the plaintiff from the age and lack of detailed particulars of the allegations to be investigated (particularly as to the dates upon which the events alleged are said to have occurred) and his lack of records which might have assisted his defence of the allegations against the undoubted public interest in the exposure of malpractice by those licensed by the State to carry out invasive and intimate examinations of their fellow citizens in the interests of those citizens' health. The trust and confidence which the community properly has in the integrity of the medical profession can only be maintained if the community also has confidence that investigative bodies such as the defendants in this case will be willing and able to investigate complaints and act upon them if satisfied that they are justified.

The Board has made full disclosure to the plaintiff of all material which it has which might throw any light on the truth or otherwise of Ms A's allegations. This material includes two statements by Ms A which set out such particulars as she says she is able to give of the allegations against the plaintiff. Thus it would appear to have done everything in its power to provide the plaintiff with all information which it has as to Ms A's complaints It can be assumed that during the foreshadowed formal hearing the first defendant will permit cross-examination of Ms A by the plaintiff's legal advisers, which cross-examination may suggest some other line of enquiry which the plaintiff might properly follow to seek evidence which could corroborate his denials of impropriety. Procedural fairness would dictate that if this did occur the first defendant would give the plaintiff every opportunity to investigate such matters before it proceeded to make any findings against him in respect of Ms A's complaints.

A formal hearing of these charges will enable the plaintiff to deny Ms A's allegations (probably on oath) in accordance with whatever appropriate procedures are adopted by the Panel. It will be required to assess both his evidence and that of Ms A in making one of the findings in s.50 of the Medical Practice Act 1994; or in declaring itself unable to make any such findings. Any deficiencies in the practitioner's case brought about by the age of Ms A's allegations or her inability to provide dates or other specific details will be taken into account by the Panel in this fact finding process. It will apply appropriate standards of proof and rigorous scrutiny of proffered evidence, bearing in mind its statutory obligation to comply with the rules of natural justice.

Having undertaken the balancing exercise prescribed by the High Court I am not satisfied that any perceived unfairness to the plaintiff in permitting the Panel to complete its assigned task of investigating Ms A's allegations by means of a formal hearing outweighs the public interest in having those allegations properly investigated. Accordingly, the plaintiff fails on the claims made in the proceeding commenced by him by writ against the defendants.

As well as the allegations made by Ms A against the plaintiff XD, both the original Draft Notice of Formal Hearing and the subsequent Amended Notice of Formal Hearing contained an allegation in the following terms:-

B. (1) At Springvale on or about 11 June 1993, during a consultation with your patient, Ms B, in relation to cold and flu symptoms, you performed an examination on your patient which was inappropriate and/or unnecessary for the purpose of the consultation.

(a) You took off her shirt without her permission.

(b) You put your arms around her shoulders.

(c) You pressed your body against her.

(d) You undid her bra without her permission.

(e) You lowered her bra straps over her shoulders without her permission.

(f) You touched her breasts.

(g) You touched her breasts all over with a stethoscope.

(h) You stared at her breasts while she remained undressed.

(i) You kissed her on the forehead."

When the Panel first met to conduct the formal hearing into the allegations made against XD his counsel sought a ruling from the Panel that the complaints made by Ms A should be severed and heard separately by a different Panel from those made by Ms B. The Panel heard submissions on XD's application from Mr Forrest QC for XD and counsel assisting the Panel, Ms Dixon. It gave its rulings on a number of issues on 23 October 2001, including a ruling refusing the plaintiff's application to sever the investigation of Ms A's allegations from those of Ms B. In that ruling it gamely grappled with some of the many authorities dealing with the joinder and severance of counts in indictments alleging criminal offences and reached the conclusion that ". . . the two sets of allegations be heard by the one Panel and the allegations first occurring should be dealt with first." It reached this conclusion by reference to a number of different considerations including what another Panel had done in another case and the policy expressed in s 1 of the Medical Practice Act 1994 as well as what it considered would be the outcome of an application to sever similar counts on an indictment or presentment initiating a criminal trial. Having regard to the conclusion which I have reached as to this part of the plaintiff's claim it is not necessary for me to consider further the Panel's reasons for refusing his application. It is sufficient to say that nothing in this judgment should be taken as necessarily endorsing the reasoning used by the Panel in reaching the conclusion which it did.

In the course of dealing with this question the Panel referred to the function of counsel assisting it as being ". . . to advise (it) on matters of the admissibility of evidence and the legal principles involved in ensuring that the hearing of the allegations is fair to the doctor". If this is indeed the function which this Panel assigned to counsel assisting it in the exercise of its discretion to control its own procedure, then that situation appears to have been nowhere made clear. The fundamental distinction between advocacy and the tendering of advice would render a hearing where counsel assisting was engaging in the former quite different to one in which she was tendering advice to the Panel. The power conferred on the Panel to control its own procedures carries with it a commensurate obligation to ensure that the procedures to be followed are clearly understood by the practitioner being investigated.

In his originating motion issued 11 December 2001, XD sought orders against both defendants which would have the effect of preventing the Panel considering the allegations made by Ms A and Ms B in the same formal hearing.

In support of this application Mr Forrest submitted that the Panel's conclusion that

". . . there is no specific relationship between the allegations made by Ms A and the allegations made by Ms B except that they arose from a doctor/patient relationship and that they involved allegations of sexual misconduct" should have led it to refuse to conduct a formal hearing into these matters together. He asserted that not to sever the two sets of allegations was contrary to natural justice. He relied upon an analogy with the joinder and severance of criminal proceedings.

It is difficult to see how any of the rules of natural justice are infringed by the mere investigation by an administrative tribunal of two sets of allegations against a medical practitioner even where the allegations are as disparate as the Panel found them to be in this case.

Mr Dreyfus submitted that criminal law principles concerning severance and separate hearings are not applicable in disciplinary proceedings before a body such as the Panel. He referred to Zaidi v Health Care Complaints Commission[13], Purnell v Medical Board of Queensland[14], Reza v General Medical Council[15], and an unreported decision of this Court: Pixley v Medical Board of Victoria[16]

Such analogy as exists between disciplinary proceedings of the type brought against the plaintiff in this case and the criminal process does not extend to the application of the complex rules relating to the joinder and severance of criminal charges to an investigation such as that which the Panel is required to undertake in this case. So much is made clear from the authorities relied upon by Mr Dreyfus. The rules relating to joinder and severance of criminal charges are simply one aspect of the law of criminal procedure designed to ensure that an accused person is not exposed to the possibility of wrongful conviction in circumstances where a jury might misuse evidence given in support of one count in an indictment in considering another. As Gobbo J said of the Medical Board of Victoria (the body which, in effect, was the predecessor of the Panel):-

"In my view it is not correct to equate a Medical Board to a jury as it is appointed by the Governor-in-Council and has set powers and obligations under the Medical Practitioners Act 1970. It is the sole body charged with conduct of enquiries provided for by the statute. It has no judge to decide on issues of admissibility of evidence. Further the Board has the wider function of enquiry and the members of the Board are entitled to ask a doctor against whom allegations are made, questions based upon their knowledge and experience".

I respectfully adopt this statement by Gobbo J as expressing the correct situation with respect to a panel appointed pursuant to s 46 of the Medical Practice Act 1994.

I am satisfied that the Panel's conclusion that it should refuse to sever the allegations made by Ms A from those made by Ms B in conducting its formal hearing was within its discretion and constituted no error of law. It is accordingly unnecessary to consider whether the injunction imposed upon a panel by s 49(a) of the Act to hear and determine a matter remitted to it would, in any event, prevent a panel from making an order such as that sought by the plaintiff in this case. A panel has no power itself to appoint a separate panel and if it has no power to refuse to hear a matter on the ground that to do so would involve an abuse of process it may well be that it cannot refuse to hear a matter lawfully referred to it by the Board which involves even quite disparate allegations against a practitioner. It is unnecessary, however, to consider this matter or the related matter of the Board's obligations with respect to references to panels in the context of this case having regard to the conclusion I have reached.

In the circumstances the plaintiff has failed to make out a case for this Court's intervention in the decision by the Panel not to sever the allegations of Ms A from those of Ms B but rather to conduct one formal hearing into both. The plaintiff's claim for relief in his originating motion in this respect must be dismissed.

Having regard to the judgment given by the Court on 14 August 2002 and this judgment the Court will make the following formal orders:-

1. That proceeding number 8680 of 2001, being a proceeding commenced by writ and proceeding number 8681 of 2001, being a proceeding commenced by originating motion be heard and determined together.

2. That the proceeding commenced by originating motion be dismissed with costs.

3. That the proceeding commenced by writ be dismissed with costs.

[3] As the Chairman of the Medical Tribunal of New South Wales is a District Court Judge the supervisory jurisdiction of the Supreme Court with respect to that Tribunal must be exercised by the Court of Appeal: s 48 Supreme Court Act 1970 (NSW). It is otherwise in Victoria: s 17 Supreme Court Act 1986.

[4] Gill v Walton (1991) 25 NSWLR 190 per Mahoney JA at 208. See also Administrative Law Act 1978.

[5] Cooke v Purcell (1988) 14 NSWLR 51, per Mahoney JA at 63 and Barron v A G(NSW) (1987) 10 NSWLR 215, per Mahoney JA at 225.

[10] [2002] VSC 329 paras 14-18

[12] Sub nom. Gill v Walton (1991) 25 NSWLR 190 at 200 and 204-205.

[15] [1991] 2 AC 182 at 190 and 202.

[16] (Unreported, Supreme Court of Victoria, Gobbo J, 12 September 1988).