SUBMISSIONS OF APPELLANT

Transcription

1 IN THE PRIVY COUNCIL APPEAL NO. 3 of 2003 IN THE COURT OF APPEAL OF NEW ZEALAND BETWEEN: MILES ROGER WISLANG Appellant MEDICAL COUNCIL OF NEW ZEALAND First Respondent MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL Second Respondent COMPLAINTS ASSESSMENT COMMllTEE OF THE MEDICAL COUNCIL OF NEW ZEALAND Third Respondent SUBMISSIONS OF APPELLANT Miles Roger Wislang 38 Glengarry Avenue Manly Whangaparaoa Auckland New Zealand Appellant in person KPMG Legal 89 The Terrace Wellington New Zealand Solicitors for the first and third respondents

2 INDEX PREFACE SUBMISSIONS TO COURT OF APPEAL (Dr GDS Taylor) Ground 1: Judicial review of process, or merits Ground 2: Decision where error not appreciated as unlawful Ground 5: Meaning of competence Ground 6: Placing drug companies and pharmacists in "jeopardy" Ground 4: lnterim suspension Ground 4(a): Amended charge not "influential" Ground 3: Condition on practising certificate Ground 7: Discretion including severance and Tribunal decision Chronology Introduction Expanded Submissions: Ground 1 : Judicial review of process, or merits Ground 2: Decision where error not appreciated as unlawful Ground 5: Meaning of competence Ground 6: Placing drug companies and pharmacists in "jeopardy" Ground 4: lnterim suspension Ground 4(a): Amended charge not "influential" Ground 3: Condition on practising certificate Ground 7: Discretion including severance and Tribunal decision The role of discretion Futility Alternative remedy Severance

3 FURTHER SUBMISSIONS AMENDED CHARGE The statutory provisions for charging Prosecuting counsel's opinion on charging Tribunal's proceeding with amended charge Proper staging of consideration and adjudication of charges Error of Court of Appeal concerning amended charge lnnominate ground of review SUSPENSIONS OF REGISTRATION COMPETENCE Competence and practising certificate conditions Determinations of competence invalid Multiplication of disciplinary proceedings countermanded Regulations DISCRETION TO GRANT REMEDIES Wislang [l 9741 Peters v Davison [l 9991 APPENDIX (Submissions of Dr GDS Taylor to High Court

4 MAY IT PLEASE YOUR LORDSHIPS PREFACE This case is a salutary example of how a single initial error, able to be called a precipitating error, fallen into by a tribunal at the outset of its inquiry can cause a cascade, even a calumny, of further errors in its deliberations. In the appellant's case, all but a few of the further errors in the proceedings of the Medical Practitioners Disciplinary Tribunal in one way or another contributed to that which was wrong with its interim and final decisions and, finally, to the unjust overall result of its proceedings. Most regrettably, the effects of those further errors either went unrecognized or were strangely minimised by the Tribunal, and were inadequately addressed by the dismissing High Court judgment on judicial review and by the Court of Appeal judgment subject of this appeal. The precipitating error was the Tribunal's wrongly accepting, and for a crucial period entertaining, a misconceived amended charge which was irregularly laid before the Tribunal by the prosecuting counsel for the Complaints Assessment Committee. As detailed in paragraphs 92 to 113 below, the amended charge was invalid not only by reason of its wrong form and its amending part's total lack of foundation in fact, but also because of the illegal process by which it was laid before and accepted by the Tribunal. The further errors which resulted from the amended charge being entertained, albeit temporarily, by the Tribunal were multiple, legally vexing, time-wasting and far- reaching in their worst effects; which included a crucial influencing of the Tribunal in its

5 wrongly judging the appellant to be medically incompetent, and in its decision on penalty and costs. The flawed and serious impugning of the appellant's medical competence by the Tribunal in its decision, through the immediate and persisting publication of its decision nationally and internationally by the Tribunal, continues to unwarrantedly and gravely prejudice the appellant's professional reputation and ability to earn a living as both a doctor and university lecturer. It is the persisting, maximally published, unjustified opprobrium by the Tribunal of the insight and judgment, and therefore of the competence andtor fitness to practise medicine, of the appellant which in his submission and deep personal and professional concern is the most damaging part of its decision and pre-eminently warrants being declared invalid or, in the alternative, quashed by way of an order on review. Finally, the wholesale adoption by the Medical Council of the erroneous parts of the Tribunal's decision led the Council itself to unjustifiably further impugn the competence of the appellant, and to wrongly decide that a new practising certificate the appellant had applied for should be subject to certain conditions which he submitted through counsel, to the Council and the Courts below, were unnecessary, impractical, and even oppressive. The adverse mis-finding by the Council on the competence of the appellant ought, in his submission, to also be declared invalid or, in the alternative, quashed by way of an order on review. The following submissions are provided under the headings "Submissions to Court of Appeal" and "Further Submissions". The submissions under the first heading are the written ones presented to the Court of Appeal by Dr GDS Taylor, counsel for the appellant on appeal against the dismissal of an application to the Wellington High

6 Court for judicial review of the decisions of the Tribunal and the Medical Council. The page and line references in them have been adjusted to correspond with the Record in the present appeal; they are otherwise unaltered. They include a Chronology, beginning at page 10 of the present combined submissions. The submissions of Dr Taylor to the High Court, which are referred to in his ones to the Court of Appeal, are attached as the APPENDIX to these submissions. The submissions under "Further Submissions", beginning page 43, are those respectfully offered by the appellant on key aspects of the judgment subject of this appeal. They refer to case law additional to that cited by Dr Taylor, and are made under the sub-headings Amended Charge Suspensions of Registration Competence and Practising Certificate Conditions Judicial Discretion on Review

7 SUBMISSIONS TO THE COURT OF APPEAL MAY IT PLEASE THE COURT GROUND 1: JUDICIAL REVIEW OF PROCESS OR MERITS 1. It is submitted that His Honour erred in paragraphs of the judgment appealed from (Record page 108) in holding that judicial review was not available for an error that went to the merits of the decision. Error of law, whether jurisdictional or not was an original and continuing ground of judicial review at common law - R V Northumberland Compensation Appeal Tribunal, ex p Shaw [l KB 338 (DC), Bulk Gas Users Group v Attorney-General [l9831 NZLR 129 (CA). Mistake of fact is an accepted ground of judicial review - Secretary of State for Education v Tameside Metropolitan Borough Council [l 9771 AC 1014 (CA and HL), Dagayanasi v Minister of Immigration [l 9821 NZLR 130 (CA), New Zealand Fishing Industry Association Inc v Minister of Agriculture & Fisheries [l NZLR 544 (CA), Southern Ocean Trawlers Ltd v Director-General of Agriculture & Fisheries [l99312 NZLR 53 (CA). It is a ground of judicial review that the facts cannot support the decision - Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA). The passage relied on by His Honour from Fraser v State Senlices Commission [l NZLR 116 (CA) is restricted to attempts to find breach of natural justice in error on the merits. See Submissions to High Court paragraphs 4-12 GROUND 2: DECISION WHERE ERROR NOT APPRECIATED AS UNLAWFUL 2. His Honour erred at para 55 of his judgment [Record page 1031 when he first held that the Tribunal misdirected itself in law when it did not recognise the amended charge as invalid, but he then held that its action was one that it had to take given that it had not appreciated the invalidity of the charge its action was valid. With respect,

8 this turns the law of judicial review on its head. A decision which is wrong in law is unlawful. That is the beginning and the end of it, save when the Court comes to consider the discretion in granting a remedy. In consequence, His Honour erroneously failed to hold that the interim suspension was invalid. See Submissions to High Court paras GROUND 5: MEANING OF COMPETENCE 3. His Honour erred in paragraph 76 of the judgment appealed from [Record page 1091 because he neither (a) dealt with the argument put to him, nor (b) provided an answer to the objection that the First Respondent included within the ambit of "competence" the administrative skills of Dr Wislang which was not suggested impacted in any way on his treatment of, attitude towards, or judgment in respect of any patient. 4., An analysis of the use of the word "competence" and its variants in the Medical Practitioners Act 1995 shows that it is tied to the medical practitioners practising medicine. The practice of medicine, it is submitted, has the ordinary meaning of the diagnosis, identification of appropriate treatment andlor procedure and the undertaking of any appropriate medical procedures. It goes beyond that to other aspects of the practice which bear on diagnosis, treatment and procedures, e.g. communication to obtain informed consent. 5. Since there was never any suggestion that Dr Wislang's administrative inadequacies impinged or could have impinged on the diagnosis, treatment and procedures undertaken on patients, it is submitted that the matters the First Respondent relied on as relating to competence in paragraphs 4.2 and 4.3, the bullet points and paragraphs of its decision [pages could not as a matter of law come within the meaning of competence. His Honour erred by failing so to hold.

9 6. In respect of ground of appeal 5(c), it is submitted that His Honour erred by failing to hold that the Court has the power and duty to interpret what is meant by "competence". Section 62(3)(f) on which he relied apparently to confer an ambulatory power on the First Respondent to define anything as competence subject only to the test of administrative law and reasonableness is wrong in law. Submissions paragraphs GROUND 6: PLACING DRUG COMPANIES AND PHARMACISTS IN "JEOPARDY" 7. His Honour erred in paragraphs of the judgment appealed from [Record page because he failed to address the part of the decision being challenged and consequently the submissions made on it. The finding of the Tribunal (para 3.12, [Record page 3381) adopted by the First Respondent (para 4.6, [Record page 4381) was that because Dr Wislang was not holding a practising certificate, he put drug companies and pharmacists in jeopardy when he obtained drugs from them. The jeopardy was said to arise from the Medicines Act 1981, the Misuse of Drugs Act 1975 and the Medical Practitioners Act In each case, the Act defines "medical practitioner" in terms of "means a medical practitioner registered under the Medical Practitioners Act 1995". The provisions of the Medicines Act imposing limits on the dealing in drugs (ss 18 and 25) do not, as a matter of proper interpretation or as a matter of policy require the additional element of an annual practising certificate to the requirement that the practitioner be registered. There was no evidence at any stage suggesting that Dr Wislang dealt with, possessed or used controlled drugs in terms of the Misuse of Drugs Act Reliance on a jeopardy created by that Act was therefore based on a mistake of fact or in a situation where the facts could not support the finding. Finally, there are no obligations imposed in the Medical Practitioners Act 1995 on drug

10 7 companies or pharmacists that could have been relied on. See Submissions to High Court paras GROUND 4: INTERIM SUSPENSION 9. Addressing sub-ground (a) of 4, His Honour in paragraph 51 of the judgment subject to appeal [Record page identified a series of matters, and His Honour said "It was the culmination of those matters, but I judge primarily Dr Wislang's practising without a certificate, which influenced the Tribunal in suspending him in the interim". It is submitted that His Honour therefore held that three of those matters listed, (namely, the amended charge and Dr Wislang's reaction to it, including not being represented) were material to the Tribunal's decision. The amended charge was invalid. It follows that reliance on the invalid charge and Dr Wislang's reactions to it were material factors in reaching a decision made the decision invalid - de Smith, Woolf and Jowell, "Judicial Review of Administrative Action (Eith edit, 1995) para If the test adopted by this Court in Poananga v State Sewices Commission [l NZLR 385 for improper purpose of whether the action would have taken place "but for" the improper purpose were to be applied, the answer must be the same. There was only one charge before the Tribunal. That was the amended charge. But for that charge, there could be no power to suspend. The charge was invalid, as Wild J held. Therefore "but for" the amended charge, the Tribunal could not have issued the interim suspension. 10. Turning to subground (b) of ground 4, it is submitted that the emphasis given by the Tribunal in para 4(iv) of its reasons [Record page 2571 to the question of legal advice implies that absence of legal advice was an integral part of the judgment that because of those matters set out in para 4, Dr Wislang had demonstrated a lack of insight, judgment and ability to organise his affairs. The absence of legal advice was, it is submitted, therefore a material factor in the decision to impose an interim suspension. It is submitted that it also satisfied the "but for" test. See Submissions to High Court paragraphs

11 GROUND 4(a): AMENDED CHARGE NOT "INFLUENTIAL" 11. For the reasons set out in relation to ground 4, it is inevitable that the amended charge, as the only charge before the Tribunal, had to have been influential in the decision to impose an interim suspension. Indeed, it has to be regarded as an essential pre-requisite to the suspension. See Submissions to High Court paragraphs GROUND 3: CONDITION ON PRACTISING CERTIFICATE 12. This ground is divided into two subgrounds. The judgment appealed from erred because when His Honour at paragraph 82 of his judgment [Record page l] held that even if none of the reasons advanced by the First Respondent in paragraph 4.7 were valid, then the decision was still lawful because there existed "plenty of material justifying" the decision made, His Honour went beyond the proper role of a Judge in judicial review and acted as if he was a Judge on an appeal on the merits. In judicial review, the Judge has no role to substitute him or herself and his or her weighing of the factors that were before the decision-maker reviewed. The role is simply to say whether there was a reviewable error, and if so, whether it was material. 13. It can also be said that two of the three paragraphs that His Honour referred to as showing that there was plenty of material justifying the decision related to the question of "jeopardy" and ground of appeal 6, in which the Tribunal made a reviewable error.

12 14. Subground (b), it is submitted, is also established once the material referred to by the First Respondent is analysed. The first matter the First Respondent relied on (failure to notify a change of address) is unsupportable on the facts. The second matter, that failure to pay the fine and costs showed that Dr Wislang was still incapable of organising his own affairs was in breach of natural justice. The third matter relied on, which was that because Dr Wislang had not organised a place to practise from, it showed that he was incapable of organising his affairs suffers from the second of those defects. See Submissions to High Court paragraphs GROUND 7: DISCRETION INCLUDING SEVERANCE AND TRIBUNAL DECISION 15. It was considered convenient and desirable to group all the matters relating to discretion together under one heading and deal with them along with ground 7. It is submitted, first, that if this appeal is allowed, this Court should not refer the matter back to the Tribunal or the First Respondent for further decisions. So far as the Tribunal is concerned, the events involved are now 4 to 8 years in the past. Dr Wislang has suffered much as a consequence of his actions and it cannot be that he would fail to obtain a practising certificate in the future. So far as the First Respondent's decision is concerned, it related to a particular practising year which is now past. 16. It is submitted that the orders sought in the High Court, with one exception, remain appropriate and are not futile. The suspensions were on the basis that it was necessary to protect the health and safety of the public, and has been published to doctors and other medical registration authorities around the world. It affects Dr Wislang's reputation. An order quashing the interim suspension would have valuable present and future effects for him. The costs and fine have not yet been paid, and so any order quashing those must necessarily have a present and future positive effect for Dr Wislang. As to the First Respondent's decision, it is submitted that if it is held to be unlawful because a misconstruction of "competence", then it is appropriate that an

13 order declaring its decision invalid should be made. If it is held to be unlawful for the other reasons advanced in these submissions, then it is submitted that a formal declaration would not be necessary. 17. Since Dr Wislang had a right of appeal to the Court of Appeal and thence to the High Court and ultimately to this Court on questions of law, discretion needs to address the existence of an alternative remedy. An analysis of the authorities on alternative remedies indicates that, unless the legislature has given a positive direction that a particular remedy is to be pursued, as in the tax cases, the approach is to examine whether the actual grounds of review raised are ones which are more appropriately dealt with by a court which has jurisdiction over the merits of the matter or whether they are ones more appropriately dealt with by a court exercising its power of judicial review. It is submitted that the grounds raised in this case fall into the latter category. 18. So far as severance is concerned, it is submitted that this present case fits closely within the matters considered by the Privy Council in Phipps v Royal Australasian College of Surgeons [2000] 2 NZLR 513 paras 24 and 26. See Submissions to High Court paragraphs CHRONOLOGY 31 March 1994 Dr Wislang's APC expires 1 July Act comes into force amid much publicity, education etc April 1997 Complainant, Andrew Inglis, complained to HDC November 1997 HDC decided no action September 1998 Medical Council receives complaint from lnglis in respect of Dr Wislang's treatment and for practising medicine without current APC

14 13 May 1999 CAC brought charge of professional misconduct (Wislang exhibit 13 [Record page 1771) l l June 1999 Dr Wislang advises Tribunal he formally admits the charge 27 August 1999 Dr Wislang applied to Medical Council for Practising Certificate for year ending 31 March September 1999 Tribunal advises that charge has been amended and that Dr Wislang should take this into account when preparing submissions on penalty and that he may also wish to seek legal advice (Wislang exhibit 19 [Record page 1851) 28 September 1999 Council cannot process application until Tribunal has determined disciplinary charge 7 October 1999 First Tribunal hearing (Wislang exhibit 28 [Record page2031) Hearing adjourned and Dr Wislang interim suspended until final determination (Wislang exhibit 33 [Record page 2541) 4 November 1999 Tribunal rules that the amended charge should be further amended to as it was when first brought (reference to breach of s109(l)(f) therefore deleted and original charge reinstated (Wislang exhibit 44 [Record page 2951) l l November 1999 Interim suspension expires Tribunal conducts further hearing and finds Dr Wislang guilty of

15 professional misconduct and orders: that he be suspended for two months, effective from 11 November 1999 pay fine of $8,500 contribute 35% to costs be censured wislang exhibit 50 [Record page 3221 exhibit 53 [Record page 3311) 9 December 1999 Dr Wislang appeals against Tribunal order in respect of costs (Wislang exhibit 54 [Record page 3531) l l January 2000 Two month suspension expires 7 February2000 Dr Wislang provides further information (CV and affidavits from Drs Gilbert and Wilson) to Council in support of application for APC 2 March 2000 Council advises Dr Wislang that it proposes to issue APC subject to conditions that he restricts independent practise to hair transplants that he nominates a general overseer who will agree to be his mentor 30 March 2000 Dr Wislang made submissions in respect of the APC and proposes conditions 17 April 2000 Dr Wislang applied for APC for the year April 2000 District Court dismisses Dr Wislang's appeal

16 (Wislang exhibit 74 [Record page 3881) 10 August 2000 Council conducts hearing into Dr Wislang's application; Dr Wislang represented by counsel 20 September 2000 Council resolves to issue APC subject to conditions that he restrict his independent practise to hair transplants and the teaching of anatomy and biosurgical research that he nominate a general overseer who will agree to be his mentor 18 October 2000 Dr Wislang issues judicial review proceedings 1 July Oversight becomes mandatory INTRODUCTION 1. The judgment appealed from contains a significant number of errors: some fundamental errors as to the nature of judicial review, others, more detailed. It is submitted that this appeal should be allowed, both on the errors viewed individually, and the detailed errors viewed as a whole. It is submitted that this Court should, in allowing the appeal, make orders: (a) declaring that the interim suspension made by the Second Respondent was unlawful and invalid; (b) quashing the following paragraphs of the substantive decision of the Second Respondent, namely, paragraphs , 3.16, , , , and ; and (c) declaring that the second condition imposed on the First Respondent on any practising certificate it issued to the Appellant was unlawful.

17 2. It is submitted that it would be inappropriate for this Court to refer the matter back to the First and Second Respondents for the following reasons which are developed in more detail in paragraph below. First, the events to which the matters are subject of the Second Respondent's decision is concerned are now far in the past. Secondly, the proceeding before the Second Respondent is so riddled with error that it would not be reasonable to expect the Appellant to have to face that Tribunal on the same matter again. Thirdly, the effort that the Appellant has had to go to, both before the Second Respondent, and before the High Court and this Court to establish the errors of the Second Respondent, means that it is unjust that he should be forced to face a further hearing before the Second Respondent. Fourthly, the First Respondent's decision was as to a practising year that has passed. 3. The Points of Appeal notified have been organised in these submissions with the two fundamental errors of the High Court as the first grounds, and the more detailed grounds following on. Grounds 5 and 6 will follow on after 1 and 2, followed by grounds 3 and the two grounds numbered 4 which this counsel will refer to as 4 and 4(a), and finally, ground 7. This is submitted to provide a logical structure involving the most important of the detailed errors being dealt with ahead of the less important ones, and the error relating to the Court's discretion being in its logical position as last. GROUND 1: JUDICIAL REVIEW OF PROCESS OR MERITS 4. The paragraphs of His Honour's judgment [Record page 1081 conclude the section dealing with the award of costs by the Tribunal, which His Honour, rightly, it is submitted, found was wrong in law. 5. Counsel for the First and Third Respondents (hereafter called "the Respondents" unless it is necessary to separate out the Tribunal) had submitted that this error was a matter which fell to be remedied by way of appeal, not judicial review. His Honour commented on that submission in para 71, "he is right". With respect, he is wrong. Pursuant to the express words of S 4 of the Judicature Amendment Act 1972,

18 an application for review may be made notwithstanding that there is an alternative remedy. It is basic law in judicial review that the existence of an alternative remedy goes to discretion, not jurisdiction. It is a point that will be reverted to later in the section on discretion at paragraphs 77 to His Honour then went on to cite Fraser V State Services Commission [l NZLR 116 at 127 (CA) for the proposition that "Judicial review is concerned not with the merits or correctness (whether in fact or in law) of a decision, but with the manner in which that decision was made". His Honour has mis-directed himself for four reasons. First, error of law in the face of the record was an original and continuing ground of judicial review at common law, save in the period from the 1920s to the beginning of the 1950s when an acknowledged false and narrow approach to judicial review prevailed - see R v Northumberland Compensation Appeal Tribunal, ex p Shaw [l K6 338 (DC), and see Wade and Forsyth, "Administrative Law'', (7th ed), pp This was carried forward into the Judicature Amendment Act 1972 through Anisminic Limited v Foreign Compensation Commission [l AC 147 (HL) by Bulk Gas Users Group v Attorney-General [l 9831 NZLR 129 (CA) which held that any error of law in an administrative decision is subject to judicial review, effectively abolishing the concept of jurisdictional error. 7. Secondly, the judicial review ground of mistake of fact has been accepted overseas - Secretary of State for Education V Tameside Metropolitan Borough Council [l 9771 AC 1014 (CA and HL), Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(3)(b) and 6(b), by some judges of this Court-see Daganayasi v Minister of Immigration [l9821 NZLR 130 (CA), per Cooke J, New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [l NZLR 544 (CA), per Cooke P, Casey J and arguably McMullin J, and Southern Ocean Trawlers Limited v Director-General of Agriculture and Fisheries [l NZLR 53 (CA) per Cooke P, and by a large number of High Court cases collected in footnote 2 to paragraph of this counsel's supplement to "Judicial Review". Although the ground of mistake of fact has not commanded universal approval of judges of this Court, it is significant that no judge in this Court has rejected it as a ground, Richardson P and Gault J, current judges in this Court, have expressly left the ground open.

19 8. Thirdly, it is a ground of judicial review that the facts cannot support the decision - Lewis v Wilson and Horton Limited [2000] 3 NZLR 546 (CA), paras 63 and Finally, what was said by this Court in Fraser did not and cannot have been intended to have the wide range ascribed to it by His Honour. The passage His Honour refers to (at [l NZLR, 127 lines 39-41) cites Chief Constable of the North Wales Police v Evans [l All ER 141, 154 (HL) per Lord Brightman. That passage in turn, like this Court in Fraser, was dealing with a natural justice argument and a submission that effectively sought to argue that there was a breach of natural justice because the decision concerned was wrong on the merits. With respect, Lord Brightman and this Court in Fraser are completely right in saying that an issue of natural justice is concerned not with the merits of the decision, but with the decisionmaking process. But that is as far as Lord Brightman's dictum goes. 10. His Honour, in the judgment appealed against, makes completely clear in para 72 that he is saying that judicial review is not available in respect of a matter touching the correctness of the decision itself. For the reasons advanced in this section, it is submitted that His Honour was wrong in holding that because of that, the application for judicial review could not succeed. 11. Further, it is submitted that the errors His Honour identified in paragraphs of the judgment appealed from [Record page 1071 rather than mere errors of factfinding do come within the acknowledged grounds of judicial review. First, the finding in paragraph 66 (phrased in terms of fairness) is, in fact, a finding that it was unreasonable to blame the Appellant (a layman) for not immediately appreciating the invalidity of the charge which neither the Third Respondent's barrister nor the Tribunal's barrister Chairperson appreciated. The finding in para 67 is a finding that it was wrong in law of the Tribunal to make a decision on the basis that a decision could have been reached on 7 October. As His Honour noted "That would result in determinations which must be treated as invalid". The finding in paragraph 68 is one that if (hypothetically) the Tribunal was deciding on the basis that the hearing could have been completed on 7 October if a proper charge had been laid, then it was met.

20 His Honour noted "that is not what happened". In other words, the reason of the Tribunal proceeded on a mistake of fact or was one that the facts could not support. Finally, the finding in paragraph 69 is that the Tribunal failed to take into account a relevant factor, namely, that the invalidity was only detected and corrected as a result of the Appellant's submissions. 12. It is submitted that the first ground of appeal is established; GROUND 2: DECISION WHERE ERROR NOT APPRECIATED IS UNLAWFUL 13. In paragraph 55 [Record page 1031 His Honour first stated that this part of the argument was "pedantic and unrealistic". His Honour then summarised the submissions for the Appellant at lines His Honour then constructed the entirely plausible scenario that had the Tribunal appreciated that the immediate charge was invalid, it would have amended the charge back to its original form, required Dr Wislang to plead to the charge, and then proceeded with the charge to a determination. While that is accepted as a likely and perhaps probable scenario, it is again subject to the comment that His Honour made in paragraph 68, "But that is not what happened". 14. Reverting to what actually happened, His Honour finds, correctly it is submitted, first, at line 24 that, "A Tribunal properly instructed as to the relevant law' would have appreciated the invalidity of the amended charge". But then, in the last four lines of the paragraph, His Honour reaches the conclusion which is submitted to be erroneous, "But in my view a Tribunal acting judicially but not appreciating the invalidity of the charge, could not responsibly have done other than suspend Dr Wislang in the interim". He then rejected the ground. This is a statement that where a Tribunal, acting on a basis which is wrong in law, stills acts validly if its action was one that it would have made had it been right in law. In other words, if one pretends that the misdirection was not a misdirection but was a correct decision. With respect, this puts the whole of judicial review on its head. A decision which is wrong in law is unlawful. That is the beginning and the end of it, save when the Court comes to consider the question of

21 discretion in granting a remedy. His Honour erred by failing to hold that the interim suspension, which followed from the misdirection in law, was invalid. 15. The question whether the invalid amended charge was relevant to the decision to suspend the Appellant, ie the question whether the error identified by His Honour was material, is a separate question which is addressed in ground of appeal 4(a) and considered later in paragraphs 47, 48, 51 and 52. Be that as it may, it is submitted that in the last sentence of paragraph 55 His Honour was plainly in error and this Court should say so. GROUND 5: MEANING OF "COMPETENCE" 16. His Honour erred in paragraph 76 of the judgment appealed from [Record page 1091 neither (a) dealt with the argument put to His Honour, nor (b) provided an answer to the objection that the First Respondent included within the ambit "competence" the administrative skills of Dr Wislang which, there was no suggestion, impacted in any way on his treatment of, attitude towards, or judgment in respect of any patient. 17. The essence of the Appellant's submissions made to His Honour and also made to this Court is the following. 18. In summary, to the extent that the context of uses of the word "competent" or its variation does shed any light on the meaning of the word, it is related to clinical actions and the ordinary meaning of practising medicine. In addition to that, it is submitted that the general purpose of the Act, being tied to health and safety of the public, echoes that.

22 19. The health and safety of the public is prejudiced by a practitioner who does not diagnose adequately, does not identify the appropriate treatment or procedure, or not undertake the procedure adequately. Naturally, the process of diagnosis involves communication with the patient, listening to what the patient says and identifying what is relevant. Today, treatment following diagnosis involves informed consent and therefore explaining what is involved. But the communications side is communication that makes' the diagnosis, treatment and procedures adequate, i.e: clinically competent. To that extent, the reference in the Medical Council's para 4.3 to communication would need to be tied to the clinical process to be legally valid. 20. Again, a doctor's "attitude" would need to be tied to clinical actions. That a doctor does not like gang members does not reflect on his or her competence unless the doctor mistreats gang members who present as patients. Just as a lawyer must put his or her personal views of a client to one side when taking and acting on instructions to represent that person, so too with a doctor. A second example, to that of gang members, might be a doctor's attitude to the Council and its administration. A doctor who has no time for the Council and its administrator cannot, it is submitted, legally be said not to be competent to practise medicine. 21. The ambit of "competence" submitted to His Honour and to this Court was derived from a consideration of the use of the word "competence" in the Medical Practitioners Act The word "competence" or variations on it occur in 44 places in the Act, the first of which is in the long title item (c) "to provide for the review of competence of medical practitioners to practice medicine". 22. Then there is the definition of "competence programme", and the group of section dealing with competence. Apart from s62 which has already been considered, most of the references to competence are uninformative because their context does not enlighten the use of the word. The exception is s63(1) entitled "Recertification programmes" which provides "For the purpose of ensuring that medical practitioners who hold vocational registration are competent to practice the branch or

23 sub-branch of medicine in respect of which they are registered, the Council may from time to time set and recognise re-certification programmes in respect of such practitioners". It is submitted that this is a clear indication that competence refers to clinical skills. That inference gains support from s64(1) which relates to unsatisfactory results of competence programmes or re-certification programmes. By dealing with both together, and authorising the Council to impose a condition on a practising certificate where the results are unsatisfactory, it is submitted that both competence programmes and re-certification programmes are in pari materia and limited to clinical competence. 23. Returning to the other references to competence in the Act, the next is in s3(1) which states that the principal purpose of the Act is to protect the health and safety of members of the public by providing mechanisms to ensure that medical practitioners are competent to practice medicine. Subsection (2)(c) gives a specific purpose of providing for reviews of competence. It is submitted that the first of these references demonstrates that competence is related to the health and safety of members of the public through the Act of practising medicine. It is submitted that the natural and ordinary meaning of the phrase "practise medicine" is the action that virtually every adult is familiar with, of having symptoms diagnosed and treatment prescribed or procedures undertaken to ameliorate or remove the cause of those symptoms. In other words, the practice of medicine is the clinical actions. 24. The next reference to competence is in s19(c) where the concept is used twice, both adjacent to the concept of practising medicine. These too, it is submitted, supports the submission that competence refers to competently diagnosing symptoms and prescribing or undertaking treatments or procedures to alleviate or remove the cause of those symptoms. Section 22(c) is equivalent, in requiring the Council to be satisfied for vocational registration that the applicant "Is competent to practice that branch or subbranch of medicine." 25. Section 52(1) makes two references to competence. The first in para (a) is to a failure to maintain "a reasonable standard of professional competence" and the second in para (b) refers to "competence programmes". It is submitted that the first of those references is neutral because the context does not itself explain what is meant.

24 26. The two references to competence in s54(1) are closely related to the concept of "practising medicine" and the submissions made earlier apply here also. It will be necessary to return to this subsection. 27. The next set of references occurs in Part 6 "quality Assurance Activities". Section 66(1) provides definitions of certain expressions for purposes of Part 6. The definition of "quality assurance activity" is that it means "an activity that consists of, or includes, or results in, an assessment or evaluation of any health services provided by a medical practitioner whenever those services are or were provided", where the assessment or evaluation is carried out for the purpose of improving the practices or competence of the medical practitioner; and, without limiting the generality of the foregoing, includes - "(a) Any study of the incidence or causes of conditions or circumstances that may affect the quality of health services provided by a medical practitioner; (b) The making of recommendations about the provision of such services as a result of such assessment, evaluation, or study; (c) The monitoring of the implementation of any such recommendations". It is submitted that the portions of that definition which have been reproduced in bold are expressly related to the concept of competence. It is submitted that in consequence, these references support the proposition that competence is concerned with clinical practice. 28. Section 92 dealing with determination of complaints by Complaints Assessment Committees allows a CAC to determine whether (a) the Council should review the competence of a practitioner to practise medicine. Because of the connection of competence and the practising of medicine, this too is submitted to support the submission that competence relates to clinical competence. The reference back to competence reviews (ss60-65) already covered in the submission, demonstrates, it is submitted, once again that competence is related to clinical practice. 29. Section 116(2)(a) refers to competence programmes and confers a right of appeal in relation to a requirement that one be completed. This reference does not add anything to previous submissions on the meaning of competence. Nor does the

25 inclusion of competence reviews as an express function of the Council in s123(c), nor s135(3) excluding liability in respect of things said as competence review programme add anything further. 30. The use of the word "competent" in dealing with meetings of the Council - clause 8(4) of the Second Schedule is irrelevant, as is clause 10(3) excluding a member from discussion in the Council of a matter. relating to that member's registration, suspension, competence, fitness to practice or discipline. 31. Paragraphs of His Honour's judgment [Record page to be understood, must, it is submitted, be read in connection with paragraphs 4.2 and 4.3 of the First Respondent's decision to impose conditions on Dr Wislang's practising certificate [Record page 4821 and the matters taken into account for that decision - listed in bullet points [on Record page which, through paragraph [Record page ties back to the matters which exercised the Tribunal in its decision. 32. Although His Honour does not expressly relate his understanding of "competence" to the reasons of the First Respondent, it is submitted that he necessarily must have identified competence as including those elements of administrative competence not touching on adequate diagnosis, identification of appropriate treatment and procedure, and undertaking of medical procedures. Were it otherwise, then he would have failed to address the relevant issue before him at all. It is not contended that that is so. Paragraph 76 as a whole should, it is submitted, be read as extending beyond the example of attitude given in the second sentence to the matters that were the subject of dispute before His Honour that he held administrative actions to be within he concept of competence is shown by his reliance on para (f) at the end of the paragraph. 33. The submissions just made relate to ground 5(a) and (b). Ground (c) arises from His Honour's reliance on s62(3)(f) and his decision in paragraph 77 that what the First Respondent chooses to bring within the concept of competence can be

26 challenged only on the grounds of unreasonableness. With respect to His Honour, that cannot be so as a matter of law. Section 62(3)(f) does not and cannot set the Council free to decide what comes within the concept of "competence". As a matter of law, not just of reasonableness, what it regards as "competence" is limited to the concept of competence as determined by ordinary processes of statutory interpretation from the use of the word and its context in the Act itself. It is submitted that the effect of para (f) is to enable the Council to include matters other than those listed in paras (a) to (e) of S 62(3) that are appropriate to the statutory and appropriate definition of competence. As His Honour failed to determine what the statutory meaning of "competence" is, he fell into error. 34. To conclude the submissions on ground 5, it is submitted compendiously that the word "competent" or its variations in the Medical Practitioners Act 1995 has the meaning of ability to diagnose adequately, ability to identify appropriate treatment or procedure, ability to undertake the procedure adequately, and goes beyond that to personal attributes such as communication and attitude which can be shown to bear on diagnoses, identification of treatment and procedure and undertaking of procedures. The administrative organisational ability of a doctor does not, as a matter of law, come within the concept of "competence" unless it impinges on those matters. One example might be a chaotic system or non-existent system for retaining patients' notes which would deprive the doctor of a reliable perspective of the patient's medical history and so adversely affect diagnosis, identification of appropriate treatment or procedure, andlor the undertaking of a procedure safely and adequately. Since the Appellant's administrative inadequacies did not so impinge - it was at no stage suggested that they did impinge - on those aspects, the First Respondent acted in error of law in regarding his administrative inadequacies as relating to his competence. GROUND 6: PLACING DRUG COMPANIES AND PHARMACISTS IN "JEOPARDY" 35. This ground relates to paragraphs of the judgment appealed from. As with the preceding ground, it is submitted that His Honour's error is that he does not address the part of the decision being challenged and consequently the submissions

27 made on it. It is therefore appropriate to start by going back to the decisions challenged and what the various Respondents said on the point. 36. The relevant decisions are the substantive decision of the Tribunal and the decision of the First Respondent. The substantive decision of the Tribunal deals with the matter at para 3.12 [Record page The First Respondent adopts this in its para 4.6 of Exhibit MRW9O [Record page 4381). That paragraph starts with the sentence "This lack of judgment also displayed itself in other ways". Only one example is given, and that, it is submitted, can be inferred to have been a key matter for the Tribunal. The example is that "Dr Wislang also appears not to have given thought to the jeopardy he placed other persons with whom he had dealings during the period he was carrying on his medical practice without holding a practising certificate. For example, the pharmacists and drug companies who filled prescriptions andlor supplied him with the medicines he required". The Tribunal noted that these people acted on the belief that Dr Wislang was a "practitioner" within the terms of the Medicines Act 1981, the Misuse of Drugs Act 1975 and the Medical Practitioners Act The finding made refers back to the submission of counsel for the Third Respondent at paras 5-7 of the written submissions (Exhibit MRW42 [Record page ) which tied s 9 of the Medical Practitioners Act (No person shall practice medicine under the title medical practitioner unless registered and holding a current practising certificate) to the definition in S 2 so as to incorporate that requirement of S 9 into the definition. He submitted that "medical practitioner means someone who is both registered and as an APC". In turn, the Council in para 4.6 of its decision [Record page 4821 tied its reason into the concept of "jeopardy" in line 2 and the views of the Tribunal in line The question of whether either of those findings was in error of law necessarily depends on two questions. The first is whether Dr Wislang was a "practitioner" in terms of those three Acts, and so was entitled to obtain the drugs from drug companies and pharmacists. The second is whether, if he was not, his obtaining the drugs put the drug companies and pharmacists in any jeopardy. This directs one to the provisions of the three Acts. Each of the three Acts contains an exhaustive

28 definition of "medical practitioner" as "means a person registered under this [the Medical Practitioners Act Act". The definition does not require a practising certificate. Therefore, a registered medical practitioner could only be held not to be a "medical practitioner" in those Acts in terms of these Acts if the context of the reference to "medical practitioner" required a different definition and one which included a practising certificate. It is submitted that that is not so in respect of obtaining pharmaceutical drugs from a drug company or pharmacist. 39. The provisions of the Medicines Act relating to the obtaining of pharmaceutical drugs are found in restrictions on sale in S 18 and elsewhere, and specific exemptions for "practitioners and others" in S 25 and "medical practitioners" in S 29. The exemption in section 29 relates only to ss 20 and 24 (new and changed medicines). As there is no suggestion that Dr Wislang was using either of these, that section is irrelevant. 40. The exemption in S 25 refers to an "authorised prescriber" which is defined in the section as, inter alia a "practitioner". "Practitioner" is defined in S 2 as, inter alia, a "medical practitioner" and "medical practitioner" has the meaning referred to earlier in this section of the submissions. Section 18 also refers to "practitioners" in subs (2A) in the context that no person may supply, in circumstances corresponding to retail sale, any prescription medicine otherwise than (a) under a prescription given by a practitioner; or (b) In accordance with a standing order." The question is whether there is something in this context which requires the exhaustive statutory definition not to apply in ss 19(2A) and 25. It is submitted that there is not. First, each of the persons in subs 2(2A) who can give a prescription relates back to persons who belong to a class who are "registered". This represents a distinct policy decision that in a limited context where these definitions are relevant, it is only the fact of registration which is relevant. This makes policy sense, because it exempts the drug company or pharmacist from any liability in a situation where a person has let a practising certificate lapse, it may be for only one or two days. A drug company or pharmacist should not have to inquire whether the doctors whose prescriptions they are filling were on that particular day holding a practising certificate. 41. Turning to the Misuse of Drugs Act 1975, ss 6-7 create criminal offences of

29 dealing with, possession or use of controlled drugs. Controlled drugs are defined exhaustively as those in the three Schedules to the Act exhaustively. There is no evidence whatsoever that the Appellant, when undertaking his medical practice, at the time he did not have a practising certificate or otherwise, dealt with, possessed or used any of these drugs. Therefore, the exemption to ss 6 and 7 contained in S 8, which refers to inter alia a medical practitioner "acting as such in the course of his or her practice or employment" - which would arguably import a necessity for annual practising certificate, has any application. Equally, the exemption to the offences of treating persons dependent upon controlled drugs set out in S 24 are irrelevant. It follows that upon proper consideration, it can be seen that the reference to the Misuse of Drugs Act 1975 lacks any foundation in fact and was legally irrelevant. 42. That leaves the reference to the Medical Practitioners Act At this point, it is critical to note that the objection and criticism of the Appellant was directed at the "jeopardy" in which he placed drug companies or pharmacists. Therefore, the reference to the Medical Practitioners Act can, relevantly, only refer to provisions in that Act which place obligations on drug companies or pharmacists. Unfortunately for the Respondents and for His Honour in the judgment appealed from, this Act contains no such obligations. 43. It follows ineluctably that the Tribunal, the First Respondent, and His Honour in the judgment appealed from have erred and the Tribunal and First Respondent erred in a way that is subject to judicial review. They proceeded on a misconstruction of the Medicines Act and the Medical Practitioners Act 1995, and in the absence of any evidence making the Misuse of Drugs Act 1995 applicable. This ground of appeal must also succeed. GROUND 4: INTERIM SUSPENSION 44. This ground is in two parts, both of which fasten on paragraph 51 of the judgment appealed from [Record page This section of the judgment consists of two paragraphs, 50 and 51. Paragraph 50 states the three matters

30 counsel for Dr Wislang submitted arose for decision and paragraph 51 gives the answer of the Judge. 45. It is worth analysing paragraph 51. The first sentence cites Dr Wislang's admission that he had practised medicine for four years without a certificate and gave various explanations. The second sentence noted that the charge had been amended and the letter had expressly drawn his attention to s109(l)(f) "and the implications of this in terms of penalty". Pausing there, it is noted that the letter, in fact, says somewhat less: "the charge of professional misconduct has been altered to incorporate Section 109(f) of the Medical Practitioners Act You will need to take this into account when preparing your submissions on penalty." (Exhibit MRW 19, [Record page 1851) The third sentence states that it was suggested Dr Wislang may wish to seek legal counsel. The fourth sentence said that despite that, Dr Wislang appeared being unaware that he faced being struck off. His Honour then said in the fifth sentence: "It was the culmination of those matters, but I judge primarily Dr Wislang's practising without a certificate, which influenced the Tribunal in suspending him in the interim." (emphasis added). Pausing there again, what His Honour implies is that the five proceeding elements: practising without a certificate, the explanations he gave, the amended charge, the suggestion that he be legally represented and his unawareness that he could be struck off, were all material to the decision, but the first of those was the most important. That brings one to the final sentences. The penultimate sentence is that "the nub" of the Tribunal's concern was not that he was not legally represented, but his general professional disorganisation and failure to grasp the seriousness of what he admitted doing. The last sentence says that there was no fault by the Tribunal in this. 46. The most obvious vice in His Honour's analysis is submitted to be that, the amended charge was expressly held to be a material factor, yet that amended charge was, he held elsewhere, invalid. It was Dr Wislang's failure to react properly to that charge by being legally represented and properly identifying his risk that were 3 of these 5 material factors. Yet notwithstanding that, he held that the approach of the Tribunal was valid. There is an obvious inconsistency here and one that comes squarely within the well established principles governing consideration of irrelevant factors. De Smith, Woolf and Jowell, "Judicial Review of Administrative Action" (5'h edition, 1995) para state the law as being that "if the influence of irrelevant factors is established [and it

31 is here], it does not appear to be necessary to prove that they were the sole or even the dominant influence. As a general rule it is enough to prove that the inference was material or substantial." On that basis, His Honour held on the one hand that an irrelevant factor was a material consideration, and on the other hand that that did not vitiate the decision. That is contrary to the law stated by de Smith. 47. In the closely related ground of improper purpose, it had been the law that the improper purpose must be the dominant purpose in the sense that the action would not have taken place "but for" the improper purpose. That was adopted by this Court in Poananga v State Services Commission [l98512 NZLR 385 (CA). Given the close relation between the two grounds, it may be arguable that that test now replaces the test stated in de Smith. Without conceding that that is so, let it be supposed that the test where there are multiple material factors, some of which are irrelevant, is the "but for" test as stated in Poananga at 394, lines 4-8: "If a transfer would not be directed but for conduct on the part of the officer that reasonably appears to fall prima facie within one or more of the descriptions of offences in S 56, the charge procedure under S 58 before the officer can be transferred to other duties, whether in the same or a different department or locality." (emphasis in original) Here there was only one charge before the Tribunal. That was the amended charge. That was the charge to which it was held Dr Wislang did not react appropriately. But for that charge, there could be no power to suspend. That charge was invalid, as Wild J held. Therefore, "but for" the amended charge and derivatively Dr Wislang's reaction to it, the Tribunal could not have issued the interim suspension. 48. It is submitted that it follows that, whether the traditional test stated by de Smith or the "but for" test stated in Poananga is applied, the decision to order the interim suspension was invalid because it relied on the irrelevant factor of the amended charge. Indeed, the argument can be stated more fundamentally than that. That is, that since the only charge before the Tribunal was invalid, it had no power to impose the interim suspension.

32 49. Taking a step away from the High Court judgment to the interim decision of the Tribunal [Record page , the reasons imposing the suspension start with the two paragraphs 2 and 3 reciting the amended charge and stating that "Dr Wislang has pleaded guilty to the charge". In paragraph 4(iv) of the reasons the Tribunal said that "When he had pleaded guilty to the Charge he was unaware that... the amended charge incorporated section 109(f) of the Act" [Record page That is, of course, simply not true. The only charge that Dr Wislang pleaded guilty to was the original charge, which he did in writing when he was notified of it (Exhibit MRW14, [Record page 180]), and see the acceptance by the Third Respondent of that plea in Exhibit MRW16 [Record page1821. Contrary to proper practice, at the beginning of the hearing Dr Wislang was not asked to plead to the amended charge. The question of a plea arose only in the course of the hearing [Record page 208 lines 12ffl There is clearly a confusing interchange on that page, in which the charge was not formally read to Dr Wislang with a request that he plead. The cross-talking of all parties including the Tribunal has to be acknowledged. However, the only tenable reading of the events is that he never pleaded guilty to the amended charge but only to the original charge. The Tribunal's interim decision was therefore based on a further reviewable error, namely, mistake of fact on a clearly fundamental point. The decision was therefore invalid and the High Court should have held so. The point of mistake of fact about what charge Dr Wislang pleaded guilty to was argued before His Honour, but is not adverted to in the judgment appealed from. 50. It is therefore submitted that sub-ground (a) of ground of appeal 4(a) is established, albeit phrased somewhat differently. 51. Turning to subground (b) of ground 4, as was acknowledged in the High Court and noted by His Honour at para 50 of the Judgment appealed from [Record page 1011 the Tribunal's interim decision does not expressly rely on the lack of legal representation. The reference to legal advice on the Tribunal's interim decision is in para 4(iv) first bullet point of the reasons [Record page That reason was that when Dr Wislang had pleaded guilty he was unaware that the amended charge incorporated section 109(f) of the Act notwithstanding that the Tribunal gave Dr Wislang written advice of the fact "AND" (emphasis in original) that a copy of the Act had previously been provided "AND" (emphasis in original) that he was again advised by the Tribunal to seek legal advice. It is submitted that the conclusion in para

33 8 of the Tribunal's interim decision [Record page 2581, - which was tied back into the evidence set out in para 4 of the reasons, was that Dr Wislang had in the para 4 wages demonstrated "a lack of insight, judgment and ability to organise his affairs". 52. It is submitted that assessment by the Tribunal can only be read as including the reference to a lack of judgment on the implied basis that he had appeared without legal advice. The Tribunal had gone to the trouble of emphasising that part of the advice given by it when it set out its reasons in para 4(iv). It is submitted that lack of legal representation was a material factor in the reasons for the Tribunal at least in the sense stated in de Smith, quoted earlier. Were the Poananga test to be applied, the argument is more tenuous. If the submission made earlier is correct, namely, that the lack of legal representation was an element bound up in the lack of judgment, then the following submission is made. Unless the lack of legal representation can somehow be isolated from the other aspects of lack of judgment in coming unprepared to deal with the amended charge as distinct from the original charge, then, the lack of judgment encompassed within paragraph 4(iv) first bullet point was a matter "but for" which there would not have been a suspension. In other words, if none of the paragraph 4(iv) points existed, would there necessarily have been a suspension? It is submitted not. Subground (b) or ground 4 is established on the Poananga basis as well, it is submitted. GROUND 4(a): AMENDED CHARGE "INFLUENTIAL" 53. Little more needs to be said on ground 4(a) after having set out the matter essentially in respect of ground 4. His Honour at para 49 of his judgment [Record page 1011) stated unambiguously that "it was not the amended charge... that influenced the Tribunal in suspending Dr Wislang in the interim, but Dr Wislang's ready acceptance that he had practised medicine... ". For the reasons set out in respect of ground of appeal 4 and, particularly, the point that the only charge before the Tribunal was the amended charge (which was invalid), that conclusion by His Honour has to be erroneous.

34 54. The reason for His Honour's error may lie in the words in parentheses in the second sentence of para 49. There, he defined what was involved in the amended charge, namely, "the consideration that Dr Wislang now faced removal from the Medical Register". But that identification of what was involved in the amended charge (in comparison with the original charge) is itself erroneous. The amended charge was not just a changed penalty, it was in fact a second alternative in the charge, namely: "andlor that Dr Wislang practised medicine outside the extent permitted by, or not in accordance with the conditions of, his registration. That was a distinct charge. The original charge was that he had practised without a practising certificate. There is a clear second charge involved. 55. Identification of that reason for His Honour's error, in the light of the recent decision of Durie J in R v Medical Practitioners Disciplinary Tribunal, High Court, Wellington, CP , 9 November 2001, demonstrates that the first of the two reasons Dr Wislang advanced for saying that the amended charge was invalid was also correct. Here, there was a complaint which was investigated by the Third Respondent and it levied a charge arising out of the complaint that Dr Wislang had practised without a practising certificate. That flowed from the Third Respondent's investigation and its interview with Dr Wislang, and crystallised the complaint. The new charge of practising outside the conditions of registration andlor a practising certificate [which is an absurdity because he did not have a practising certificate at the time], could only, on the authority of Durie J's decision, be brought following a fresh investigation including giving notice to Dr Wislang by the Third Respondent. That did not occur. 56. Whether or not the explanation of why His Honour erred is correct, and whether or not the analysis of Durie J is correct, the submission remains that His Honour erred in holding that the Tribunal was not influenced in suspending the Appellant by the amended charge. Because the only charge before it was the amended charge, it could not but have been influenced by it.

35 32 GROUND 3: CONDITION ON PRACTISING CERTIFICATE 57. At paragraph 82 of the judgment appealed from [Record page l] His Honour held that even if none of the reasons of the First Respondent contained in para 4.7 (Exhibit MRW 90, [Record page 4391) were valid, the challenge could not succeed because "there existed plenty of material justifying" the Council's decision. He referred back to the Council's paras [Record page Three points arise. The first is the same one covered in paragraphs above relating to multiple factors. If the principle stated in de Smith is the one to be applied, then the decision was invalid and His Honour erred in holding otherwise. It is, however, accepted that para 4.7 would probably not pass the "but for" test. 59. The second point is that review is not appeal. The Court on judicial review does not have the power to substitute its view of what the decision should have been for that of the decision-maker. It is otherwise in many rights of appeal. It is submitted that, by undertaking his own weighing of the factors that the First Respondent relied on and making his own assessment of what was the appropriate decision for the First Respondent to have made, His Honour went beyond his proper role as a Judge on judicial review. 60. The third point is that two of the three paragraphs His Honour referred to as justifying the First Respondent's decision were infected with reviewable error. Paragraph 4.6 on "jeopardy" is the subject of Ground 6 covered in paragraphs above. Paragraph 4.5 refers to a different paragraph of the Tribunal's decision (para 6.3 [Record page 4591) in fact relies on the same "jeopardy" finding. It refers to "the potential consequences for innocent third parties has already been referred to in this decision." The only such consequences the Tribunal had referred to was the "jeopardy" of drug companies and pharmacists.

36 61. It is submitted that sub-ground (a) in Ground 3 is established. 62. Turning to sub-ground (b), in paras 4.7 of the First Respondent's reasons [Record page 4831, it identified three matters which it said demonstrated a lack of overall ability to organise Dr Wislang's affairs. The first was a failure on a number of occasions to notify the Council of a change of address. The next was the failure to pay the costs of the Tribunal decision. The final one was that Dr Wislang had not stated where he intended to work once a practising certificate had been issued. These will be considered in turn. 63. The first reason is an error of law in two respects. The first, is that it is a mistake of fact. The second Affidavit of Dr Wislang [Record page 49-50] demonstrates that Dr Wislang's registered address was his home address. This was known to the First Respondent. He deposes that he has remained at that address since the change of address was notified. Therefore, he had not failed to notify the Council of a change of address. An examination of the documents discovered by the First and Third Defendants indicates that the changes of address the First Respondent was referring to was the establishment of a practice at 58 Symonds Street and then later moving it to 76 Symonds Street. That, however, is irrelevant as the address notified was Dr Wislang's home address. 64. The second matter was not a matter notice of which was given to Dr Wislang. The Medical Practitioners Act provides that practising certificates may be withheld until any order made by the Tribunal has been complied with - S 51(4). Dr Wislang could legitimately expect that the Council would, in deciding to issue a practising certificate, direct that it not be issued by the Registrar until the fine and costs had been paid. That is, however, quite a different matter from saying that the fact that they had not been paid showed that Dr Wislang was not competent in his affairs. At the best it showed that he could not, or would not (one knows now, because he still disputed the Tribunal decision) pay. That is quite different from any reflection on an ability to organise affairs. It is submitted that, because the ground relied on was so different from that which Dr Wislang could properly expect as a result of S 51(4), it was something that natural justice required that notice should be given. MS Turfrey's affidavit [Record page 39-48]

37 suggests, although it does not expressly state, that a decision that he was incompetent to organise his affairs because he had not paid the costs was something that he should have anticipated and covered in preparing properly for the hearing before the Medical Council - para 13 [Record page 441.What Dr Wislang might on that basis have been able to expect would have been the question "Why haven't you paid the fine and costs?" To which his answer would have been, "I still view the decision as invalid and have issued instructions to commence judicial review contingent upon the result of this application." The Council might then have been able to say, "We do not regard that as an adequate answer." But as a matter of natural justice what it could not do is not ask the question and then make a finding without any probative evidence that the failure to pay showed an inability to organise affairs - see Re Erebus Royal Commission, Air New Zealand Ltd v Mahon [l9831 NZLR 662, 671 (PC). Because there was no evidence to support such a finding in the material before the Council said it relied on, it was an error in law in terms of Edwards v Bairstow. It was also, for the reasons given, a finding made in the absence of notice and therefore in breach of natural justice. 65. The final matter refers to the question of where Dr Wislang was going to practice. The question and answer are covered in para 154 of Dr Wislang's affidavit [Record page 361 Miss Turfrey's affidavit does not differ materially from that. The finding of the Medical Council on this point presupposes that no medical practitioner would seek a practising certificate unless he or she already had premises to which he or she was committed. While committing to premises before applying for a practising certificate may in many cases be the appropriate order of doing things, it is submitted that in Dr Wislang's case with a Tribunal finding against him and the costs not paid, a reasonably careful person may properly elect to get the practising certificate first and then go with that confidence to obtain premises. It is submitted that the Medical Council's conclusion was open to it only if there was something more to add to that. For instance, had Dr Wislang said expressly or failed to adequately answer the question "Why haven't you done it?" by, eg, saying or implying that he had not got around to it, the conclusion may have been reasonable. Those were not the facts. Dr Wislang's answer to which he deposed was that he wanted to see what the conditions on his practising certificate might be before he committed himself. That, it is submitted, was a reasonable response. It is submitted that it could not reasonably sustain the proposition that he had not taken premises because he was disorganised. At worst for him, it was a judgment call of the order in which to do things in which Dr

38 Wislang's exercise of judgment had a valid basis. The Medical Council's conclusion was one that no reasonable authority could have reached on the evidence - Edwards v Bairsto W. 66. It is therefore submitted that sub-ground (b) of Ground 3 is made out. GROUND OF APPEAL 7: DISCRETION INCLUDING SEVERANCE AND TRIBUNAL DECISION 67. It is convenient to group under the heading of the 7th ground of appeal all the aspects relevant to discretion that would arise if the Court accepts that the judgment appealed from was erroneous. Because, in the High Court, Dr Wislang sought that all but two of the orders in the substantive decision should be quashed, His Honour addressed the question of the ability to sever parts of the decision from others where, as he noted had been submitted, the decision was "marred by numerous and cumulative errors of law" judgment para 85 [Record page In addition to the question of severance, the issue of exercising discretion against a remedy because there was a right of appeal to the District Court and on to the High Court needs to be considered. In relation to the first reviewable decision (the interim suspension) it had been submitted to His Honour that any remedy would be futile - see para 43 of the judgment appealed from [Record page This would need to be considered by the Court if the Court agreed that the decision appealed from was erroneous. In this section, the submissions will deal first with the question of the role of discretion in the appeal before this Court, and then consider the questions relating to discretion in the order of futility, alternative remedy, and severance.

39 The role of discretion 69. It is a common, although not inevitable order in successful judicial review applications that the matter be referred back to the decision-maker under S 4(5) of the Judicature Amendment Act 1972, with directions which are then binding on the body reviewed pursuant to S 4(6). It is submitted that, if this appeal succeeds, the matter should not be referred back to the Tribunal or the First Respondent. So far as the Tribunal is concerned, the four years of practising without a practising certificate, which were admitted, ended in 1998, now, almost four years ago. As a result of the charge laid against Dr Wislang and the subsequent events, Dr Wislang has suffered numerous detriments, and, obviously, much worry and concern. The result has, it is submitted, without doubt ensured that Dr Wislang is aware of the heavy and dire consequences of ever practising without a practising certificate. In the result, he has already been punished, and must have recognised the "error of his ways" to the extent that he is unlikely to offend again. To refer the matter back to the Tribunal once more to look at events occurring 4 to 8 years ago in these circumstances would be no less than unjust. Conversely the Medical Council has incurred substantial costs in relation to the charges against Dr Wislang and in defending a decision and process that was marred by numerous unlawful actions. It is submitted that it is not in the interests of the Council to have the matter referred back. 70. Moving from there to the third reviewable decision, the conditions on the practising certificate, the application to which that decision related was for a practising year which has now ended. It can serve no possible purpose to have that decision revisited. Doubtless when Dr Wislang applies for a practising certificate next, the views of this Court will be followed by the First Respondent. Further, from July 2001, it became an automatic requirement on all doctors who did not have vocational registration that they be subject to "general oversight" (S 20(1)). That was, of course, the condition challenged before the First Respondent. That requirement is a condition of registration - S 20(2)(a). Were the First Respondent on a new application to seek to add it as a condition of Dr Wislang's practising certificate in addition, that would no doubt give rise to further disputation. That is, however, a matter for the future. The point is that the referral back of the third reviewable decision to the First Respondent would serve no useful purpose.

40 That leads one naturally into a consideration of the question of futility. 72. At the hearing before the High Court, counsel for the First and Third Respondents raised the question of futility only in respect of the interim suspension. Time has moved on, and it is conceded that the question of futility now naturally arises in relation to both the other decisions as well. 73. It is submitted that making the declarations and quashing orders sought in the High Court would not be futile. First, the judgment the Tribunal made first in relation to the interim suspension that Dr Wislang "demonstrated a lack of insight, judgment and ability to organise his affairs" was one of the grounds relied on both by the Tribunal in its substantive decision and by the First Respondent in its decision on conditions of a practising certificate. It is a finding that Dr Wislang submits was unlawful. If that finding is not held to be unlawful, then it will stand as an assessment of Dr Wislang that damages his reputation throughout the rest of his life. Quashing the interim suspension, which was founded on that unlawful finding will undermine the future effect of the finding and so benefit Dr Wislang. 74. Moving to the two suspensions visited by the Tribunal on Dr Wislang, the suspensions were made because it was "necessary andlor desirable having regard to the health or safety of the members of the public" that Dr Wislang's registration be suspended - interim decision para 8 [Record page That order was, as a matter of fact, published to doctors and to medical registration authorities in other countries around the world. A quashing of the suspension order which was unlawful would correct the continuing damage done by that publication, at least for the future. The same goes for the order of suspension following in the substantive decision of the Tribunal. Quashing the two suspension orders would, therefore, not be futile, but would have actual positive effect for the present and future. 75. So far as the fine and the order for costs imposed by the Tribunal are

41 concerned, they have not been paid. Quashing of those orders would remove the threat of proceedings already served on Dr Wislang but adjourned pending the judicial review in the High Court and on appeal. Plainly, those orders would have real positive effect and could not be labelled as futile. 76. Moving finally to the decision of the First Respondent on the practising certificate conditions, it is accepted that an order quashing the second condition would not now be appropriate. Rather, an order declaring that it was unlawful is submitted to be the appropriate remedy. The argument on futility in this connection is this. The choice for the Court is between the judgment which says that the First Respondent acted unlawfully but does not enter a formal judgment to that effect, and a decision entering a formal judgment to that effect. It is submitted that the choice between those alternatives depends on whether this Court holds that the unlawfulness lies in the misconstruction of "competence"- ground of appeal 5, or that the error flowed from the First Respondent's relying on the findings of the Tribunal in various respects, and on ground of appeal 3. In the case of the former, it is submitted that a formal order is appropriate, whereas if the illegality lies in the latter, a finding to that effect coupled with the orders quashing the Tribunal's decision would be sufficient. Alternative Remedy 77. Dr Wislang had a right of appeal to the District Court under S 116(1) of the Medical Practitioners Act The Act does not specify what is the scope of appeal expressly, but S 18(2), which gives the District Court Judge power to "confirm, reverse, or modify the decision or order appealed against, or make any other decision or order that could have been made" indicates that the appeal is a general appeal. There is then a right of appeal on questions of law to the High Court by way of Case Stated. By reason of importing Part IV of the Summary Proceedings Act Medical Practitioners Act S 121 (3) - there is a further right of appeal to the Court of Appeal by leave. 78. Dr Wislang in fact appealed to the District Court from the substantive Tribunal decision, but only from the order as to costs. Paragraphs of his affidavit

42 [Record page 25-29] deal with the events surrounding this appeal. He does not state why he appealed only against the costs order, but it is submitted that it may be inferred that that was because he saw the decision on the costs order as the most vulnerable area of the substantive Tribunal decision. He did not appeal the adverse decision of the District Court to the High Court, see affidavit para 129 because "I came to consider that the errors in the actions of the Tribunal rendered it more appropriate to seek judicial review, but that that might be unnecessary if I was able to recommence practising". The situation is, therefore that he had a right of appeal to the District Court which he did exercise in relation to costs but did not exercise in relation to other aspects of the Tribunal decision, and he had a right of appeal on the costs issue from the District Court to the High Court which he did not exercise. 79. There exists a number of cases in New Zealand where the question of an alternative remedy to a Court or Tribunal has been considered. These are collected in the two practice books "McGechan on Procedure" para JA4.6(5) and "Sim's Court Practice" para J72 S 4(1).12. The question has been considered by this Court in seven cases: Reid v Rowley [l NZLR 472, Fraser v State Services Commission [l NZLR 116, Auckland Acclimatisation Society Inc v Sutton Holdings Ltd [l NZLR 94, Fraser v Robertson [l NZLR 257, and in a group of three cases close together-c v Wellington District Court [l NZLR 395, Golden Bay Cement CO Ltd v Commissioner of lnland Revenue [l NZLR 665, and New Zealand Wool Board v Commissioner of lnland Revenue [l NZLR Reid v Rowley relevantly stands for the proposition that where the ground of review is breach of natural justice, exercise of an appeal right de novo, will not prevent the granting of a remedy in circumstances where it cannot be known whether the original decision had any influence and when the appellant did not then know the breach of natural justice at first instance line line 3, Richmond P concurring in those reasons given by Cooke J. Reid v Rowley does not therefore assist the Court in this case. 81. In Fraser v State Services Commission, the complaint by MS Fraser related to the merits of her dispute with her superior officer. The Court of Appeal held that that

43 was more appropriately ventilated before the Public Service Appeal Board to which she had an existing right of appeal - per Cooke J at 123 lines and Richardson J at l28 lines In Auckland Acclimatisation, the review based on weight of evidence was rejected as not being able to be raised in judicial review lines 44-47, and the ground of no evidence was held to be more appropriately dealt with in the right of appeal on the merits in the Planning Tribunal. This was because it was "essentially one of evaluation of advantages and disadvantages, not one of primary fact" line line In Fraser v Robertson discretion was exercised against a remedy because the right of appeal had been exercised, the judicial review echoed the grounds of appeal, and any remedy would be likely to be a referral back to the Tribunal which still had seisin of the appeal. That is a very different situation from the present where the grounds of review are much wider than the right of appeal exercised, and referral back would be inappropriate. 84. Turning to C v Wellington District Court, this was a case of judicial review of a criminal committal to trial. The Court, while recognising that judicial review was available, held that a ground of insufficiency of evidence, which was what was alleged, was one that should be dealt with on appeal rather than review. That case indicates a judicial policy of asking where is the appropriate venue for litigating the issues which are the subject of the judicial review. For that reason, it is submitted that C's case is relevant to the present case. 85. The other two cases concerned judicial review of tax assessment and tax assessment processes. The area will be thoroughly familiar to Your Honours. Both of those decisions proceeded on the basis that Parliament, by making the objection (now dispute) process the only means of challenging an assessment showed a legislative preference for using the objectionfdisputes process rather than judicial review. It is well known now that the law has advanced to the point that any judicial

44 review ground relating to an assessment can be raised in the disputes process and judicial review is appropriate only where the matter cannot be raised in the disputes process, ie where the issue is not one for which there is an alternative remedy. 86. The judicial policy identified in relation to Fraser, C and the tax cases is this. Where there is no legislation direction as to where a matter should be dealt with then, when the grounds of review raised are ones which are more appropriately dealt with by an appeal process which addresses the merits of the decision being reviewed or one dealing with the legalities, the appeal remedy should be used. If they are more appropriately dealt with in judicial review then a remedy should be granted. 87. Here, the grounds are very definitely grounds of traditional judicial review and are not challenges to the merits and factual evaluation dressed up as errors of law. Severance 88. By the time it came to the Tribunal's substantive decision, the invalid amended charge had been eliminated and there was a valid charge against Dr Wislang. He had pleaded guilty to it and the evidence was incontrovertible that he had practised without a practising certificate. In those circumstances, a conviction was inevitable. It would be unrealistic for this Court, despite the failings of the Tribunal, to end up with a result that did not formally record that Dr Wislang had been guilty of practising without a practising certificate. Equally, following a finding of guilt some penalty was in reality inevitable, and the base or minimum penalty was a censure. Again, it is submitted to be unrealistic that the end result should be the valid decision that he was guilty but no penalty imposed. 89. The situation is different when it comes to the questions of suspension, fine and costs. In each of these cases, the unlawful actions identified in relation to the interim suspension which was carried forward into the substantive decision and in the substantive decision itself mean that it cannot be predicated with any certainty what would have been the result had everything been done properly, ie, there had

45 been no amended charge and the matter had been dealt with simply and quickly on the first day of hearing. In those circumstances, reality does not have a part to play and the requirement of vindicating the law means that there should be compulsory remedies quashing those decisions. 90. In the Privy Council in Phipps v Royal Australasian College of Surgeons [2000] 2 NZLR 513, Their Lordships at para 24 noted that the report concerned contained a number of specific findings, only some of which were tainted with unfairness. Those that were, the Privy Council held, should be expunged from the report, but fairness did not require that other findings which were not affected by the unfairness should be so treated. "If," Their Lordships said at 520 lines 28-30, "however, the good cannot fairly be separated from the bad, the whole report must be regarded as vitiated." When their lordships came to the recommendations (in para 26) they described them as "based on the totality of the preceding findings" - ibid, lines If it could not be said with certainty that, but for the impugned findings which were to be quashed the same result would inevitably have arisen, then the whole of recommendations must fail. 91. The present case is a simple application of that approach by the Privy Council. The findings of the Tribunal are independent and so all need not be quashed because of those that are tainted by illegality. When it comes to the orders, some are not tainted by the illegality because they were inevitable, namely, the finding of guilt and the censure, but the other orders, as in Phipps, cannot be predicated as necessarily having the same result without the tainted findings. It is submitted that Justice Wild was wrong in his approach to Phipps and that the passages of the Tribunal sought to be overturned in the judicial review could be severed from the rest. Those are my submissions. G D S Taylor, Counsel for Appellant Wellington, 3oth day of January 2002.

46 FURTHER SUBMISSIONS AMENDED CHARGE The statutory provisions for charging 92. The procedure for the laying of charges is plainly stated in section 93(1)(b)(i) of the Act. Nowhere in the Act is provision made for the CAC to amend charges once laid before the Tribunal; or to lay further charges after that. Contrariwise, paragraph 14 of the First Schedule of the Act gives the Tribunal, and only the Tribunal, power to amend a charge; but only during the hearing of that charge. This provision plainly provides for charges to be appropriately amended, or multiplied, or dropped, in the light of evidence adduced at hearing. The wisdom and utility of this exclusive empowerment of the Tribunal are easy to appreciate. Prosecuting counsel's opinion on charging 93. The power for the CAC to amend charges once laid was, nevertheless, explicitly claimed for herself by the prosecuting counsel for the CAC in her written submissions of 29 October 1999 to the Tribunal during the adjournment of its hearing. Her submissions were made in response to the appellant's eventually successful challenge to the validity of the amended charge. 94. In those submissions (at lines 9-18 on page 291 of the Record) she said, contradicting the plainly implied statutory restriction, "(c) The CAC can amend its charge at any time. The only part of its role which is functus officio is its investigation role. Its prosecution role remains extant until the end of the prosecution. The first schedule to the Medical Practitioners Act Regulation 14 allows the Tribunal [sic] to amend a charge any time up until the end of the hearing. Of course there can be an amendment of the charge at any time before the hearing, provided there is

47 no prejudice to Dr Wislang. This potential prejudice was met by postponing the date of hearing." and then (at lines 19-21) asserted somewhat confusedly "(d) Dr Wislang of course, will have the right to be heard in respect of penalty. This is the only difference between the first and second charge." 95. It was in her submissions of 11 April 2000 to the Auckland District Court that the prosecuting counsel for the CAC, then in the role of counsel for the Tribunal opposing the appellant's statutory appeal against the Tribunal's costs award against him, confirmed, upon an inquiry from the Judge, that she had been the sole drafter of the amended charge. Her confirmation of that was consistent with the statement in the first sentence of the letter of 3 September 1999 (pages 185 and 392 of the Record) to the appellant from the Secretary of the Tribunal, under cover of which the amended charge was sent to him. Tribunal's proceeding with amended charge 96. In the instant case, the appropriate course of urgent amendment of the obviously flawed amended charge was not followed. Instead, the Tribunal accepted the amendment purported to have been made by the CAC, and then, somewhat covertly but effectively, entertained it for a full day of hearing. Only upon the appellant's prolonged and strenuous objection---over the month-long adjournment---to the validity of the charge did the Tribunal, on further advice from a legal assessor, amend it back to the original, valid charge pleaded guilty to, pre-hearing, by the appellant. 97. The Tribunal's tolerance, even fostering, of the prosecuting counsel's vigorous promotion of the amended charge and its striking-off implication during its hearing, not only on its first day but also (after the one-month adjournment) on its second day, is evidenced in the transcripts of both days (lines on page 208; lines 3-8, and on page 209; lines 3-5 on page 210; and lines on page 310 of the Record) 98. The amended charge was entertained by the Tribunal for too long, adversely influenced its thinking and engendered too much mischief to be regarded as a mere "red herring". The mischief it engendered was an inevitable result of its being, firstly, a

48 charge which on examination (vide infra) in sequence of the provisions of section 109(1) of the Act and on the facts (no conditions at any time having been attached to the appellant's practising certificate or registration), properly could not have, and therefore should not have, been formulated at all; and secondly, its being a charge whose amendment back to the original charge was left far too long, allowing its entertainment by the Tribunal to generate confusion all round and to engender the prejudice and injustice asserted by the appellant. 99. The easy avoidability of the mischief is apparent on a proper reading of section 109 of the Act. That section conceives of its subsection 109(l)(f) as being applicable only after the tribunal has conducted its hearing on a charge laid under section 102. The tacked-on piece of the amended charge by which counsel for the CAC purported to amend the original charge---but which was in fact an additional charge in disguise--- was not able to properly form part of any "compound" charge; or, should the contrary be held to be true, the first part of the charge was to be considered first (in the instant case, in terms of penalty only); and its second part separately pleaded to and after that, but only if pleaded to "not guilty", inquired into evidentially; not, as it was in the Tribunal's hearing, concurrently and chaotically with the first part of the amended charge crudely amalgamated with its second part To put it another way, the so-called amended charge was not a single charge, but in reality comprised two charges. The first charqe was the first-laid charge, persisting in its original form, to which the appellant had pleaded guilty prior to the opening of the Tribunal's oral hearing, ostensibly of his submissions as to penalty. The second charqe was a crudely tacked-on new thing to which the appellant at no time pleaded guilty (despite some encouragement by the Tribunal to do so), for which no evidence was adduced prior to or on the first day of hearing or at any other time, which was completely unsupportable by the facts---the appellant having had no condition on his registration or any practicing certificate he had ever held---and whose real raison d'etre has never been satisfactorily explained The questions of the severability of the "good" part from the "bad" part of the amended charge, and the legal effects of severance, are discussed in paragraphs on pages 9-10 of Dr Taylor's submissions above. The High Court had expressed no explicit view on severance which, in fact, it had not discussed at all.

49 Proper staging of consideration and adjudication of charges 102. A reading together of sections 102 and 109 of the Act makes it plain that the disciplinary function of the Tribunal, in its adjudicatory and penalty imposing roles, is to be a two-stage procedure. Such staging is referred to, in the case of a dental practitioner, in Felix v General Dental Council [l 9601 A.C. 704, at page 718. There his Lordship Jenkins, delivering the judgment of the Judicial Committee, in setting out to determine whether the allegedly wrongful acts of the practitioner could be characterized as "infamous or disgraceful" such as to warrant the penalty of striking off from the register, said the "solution" was to be found in the rule 10(2) of the Rules of the General Dental Council Disciplinary Committee, which his Lordship cited and concerning which then said (at lines 18-23) "This shows that the inquiry was to be carried out in two stages, the first directed to finding whether the primary or specific matters of fact alleged, including any facts bearing on the question of culpability or "wrongfulness", have been proved, and the second to determining whether on the facts so found the respondent has been guilty of infamous or disgraceful conduct" (emphasis added). and (on pages 721 and 722) in his concluding the judgment "...it was the duty of the Disciplinary Committee to judge the matter simply by reference to the cases alleged in the charge, or in other words "secundum allegata et probata." This plainly appears from the language of rule 10(2) of the General Dental; Council Disciplinary Committee( Procedure) Rules, 1957, to which reference has already been made. It was therefore right for the Disciplinary Committee to confine their consideration of the charge to the matters specifically alleged in the charge; and their Lordships, taking the same course, find themselves unable to uphold that the appellant was rightly found guilty of infamous or disgraceful conduct in relation to the facts alleged" (emphasis added) It is submitted that the views of his Lordship expressed in these passages is a plain acknowledgement of the wisdom and utility of strictly observing the order prescribed by the relevant statute for the consideration of charges-- with strict regard

50 only to the matters specifically alleged in them--in judging professional disciplinary cases such as the one the Judicial Committee was dealing with Such cases should, it is submitted, be taken to include the instant one, in which the order of proceeding clearly specified in sections 102 and 109 of the Act was, to the critical derangement of the proceedings of the Tribunal and to the grave detriment of its interim and final decisions, not followed Had the Tribunal followed the correct order of proceeding, the amending part of the amended charge would, it can be believed, have been quickly recognized by the Tribunal for what it was---a completely unsustainable, in fact a false, charge---and immediately amended back, as by any competent and conscionable Tribunal, to the original charge. In that event, the Tribunal's hearing could have comprised only the hearing of submissions as to penalty upon the appellant's prior plea of guilty to the original charge, and the ensuing confusion and consequential legal errors could well have been avoided But it wasn't, and can be said to have caused the decision of the Tribunal to be blighted by a denial of the legitimate expectation, created by the Act's First Schedule stating, under "5." "(3) The Tribunal shall observe the rules of natural justice at each hearing" that its proceedings would be conducted fairly, especially for a legally unrepresented practitioner defendant; and by a deficiency of natural justice; the latter in terms expressed by Lord Denning in Kanda v Government of Malaysia [l9621 AC 322, in which, in delivering judgment for the appellant in the Privy Council, he said "If the right to be heard is to be a real right which is worth anything, it must carry a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough."

51 107. In the instant case, the new charge formulated by the prosecuting counsel for the CAC and then tacked on to the original charge to create the "amended charge", inasmuch as it was communicated to the appellant barely, with no specified factual support or other reference to reality, can be said to have come "out of the blue". No dating of the purported additional offence (ostensibly founding the added charge) was indicated; none of the mythical "conditions" on registration or practising certificate were specified. The added charge was concealed within a corollary to the original charge which became thereby, effectively booby-trapped. The noxious effect of the amended charge was considerably worsened by the "blindeye" attitude to its patent flawdness taken by the Tribunal at hearing, at which the Tribunal also appeared to disregard the complete failure of counsel for the prosecution to adduce any evidence which could possibly ground the amending part of her amended charge. Error of Court of Appeal concerning amended charge 108. It is submitted that the view of the Court of Appeal reflected in paragraph 15 of its judgment (Record page 125) of the legal identity of the amended charge, was fundamentally erroneous. This can be said because the notification of the amended charge did not say that the charge was to be amended by the adding on of certain words to the existing charge. Rather, an entirely new document---which "incidentally" incorporated a further charge---was produced. The original document had disappeared (was in effect withdrawn), and thus there was before the Tribunal only one document--- the amended charge---now incorporating two charges; the second of which the Tribunal at no time made any attempt to hear but whose veiled entertainment contaminated its hearings and deliberations from their very beginning Counsel for the appellant argued, before the Court of Appeal, that in its inquiries and deliberations the Tribunal based itself expressly on the amended charge, and on the appellant's response to that amended charge in its reasoning. But the Court of Appeal rejected that argument. From that, it is submitted, two point arise: 110. The first point is the more fundamental and arises again later in relation to the other decisions subject to review It is that where a tribunal or a court sets out in its reasons the matters it took from the evidence and bases its conclusion in its decision on those matters it has taken out, then each of those matters must be regarded as having been

52 influential on the ultimate decision. It is considered that where any tribunal or court wishes to refer to a matter that is unnecessary, it says so. A court or tribunal, it is considered, is bound by the reasons it gives - Jensen v Wellington Woollen Manufacturing CO Ltd NZLR 394 (CA), Anderson v Release on Licence Board [l NSWLR 312, Milk Board of British Columbia v Bari Cheese Ltd (1991) 59 BCLR 2d(47) (CA). Relying on a passage from "de Smith's Judicial Review of Administrative Action", if such a factor was irrelevant or legally invalid, then the decision itself would be legally invalid. While there is an argument that the invalidity would flow only if the error was more major, it is considered that the view in de Smith, which is the traditional view, is correct and the Court of Appeal erred in the fourth sentence of paragraph 19 (Record page 126) of its judgment. This comes back to the argument that the interim order was "fully justified and in the exercise of discretion no remedy would have been given. "Fully justified is considered to be doubtful. First, as the Court itself identifies in its decision, the appellant had said that he had been prohibited from practising on his own account by the Official Assignee and would not contemplate working as an employee for others. It follows that the possibility or prospect of the applicant straightaway using any practising certificate he obtained would have to have been remote in the extreme. As appears from the exhibits to the affidavit, the Medical Council had anyhow refused to process his application until the Disciplinary Tribunal decision had been finally reached The second point is that if the earlier point made that the only charge before the Tribunal was the amended charge is correct, then this error would not need to be addressed and, indeed, would follow virtually automatically from the first. The second point relates to the remaining sentences in paragraph 19 of the judgment and to the frequency with which courts make judgments in which they, usually glibly, state that the decision reached was inevitable and therefore no remedy should be granted. Such frequency goes against the observation of Sir Robert Megarry in John v Rees [l9701 Ch 345, 402, that "the history of the law is littered with open and shut cases that were not....". That well known passage was cited by counsel to the Court of Appeal, but to no avail Nevertheless it is submitted now that if one eliminates the erroneous elements, then the chemistry of the decision-making process and the decision itself is altered and it is only in the truly exceptional case that any judgment can be made on inevitability Concerning "inevitability" and justice overall in the instant case, the Tribunal's tacit acceptance and entertainment of the false charge were expectedly much worsened in their effects, both on itself and the appellant, by reason of the appellant's being a layman and unrepresented at hearing; and by the additional confusion caused by the Tribunal's asking (on being prompted by prosecuting counsel on the first day of

53 its hearing) the appellant to plead to the amalgamated two charges as a single charge; which, it is a matter of record, he declined to do. The mutual insistence of the Tribunal and counsel for the prosecution, at various times during the first day's hearing and later on, that the appellant had pleaded guilty to the amended charge when (as the transcript evidences) he manifestly had not, remains alarming. Innominate ground of review 114. The question of what are the specific legal effects of the above-described disordering of the proceedings of the Tribunal occasioned by its entertainment of the amended charge, is a vexed one. But even if those effects cannot be characterized and developed into one or more of the traditional grounds of review, it is submitted that the overall "wrongness" of the decision of the Tribunal---particularly in respect of its mis-finding on the appellant's competence---as a by-product of the cascade of errors precipitated by the initial error in its proceedings, warrants the invoking of the innominate ground of review (discussed below) in considering the granting of a remedy in your Lordship's discretion The innominate ground of review, first proposed by Donaldson MR in R v Panel Takeovers and Mergers ex parte Guinness plc [l Q6 146, appears to have first been referred to approvingly in a New Zealand case by Tipping J in lsaac v Minister of Consumer Affairs [l NZLR 606, in which he said, beginning under (g) on page 639, referring to the innominate ground "...there is a residual ground for judicial review based on the proposition that something has gone wrong of a nature and degree which requires the intervention of the Court....l1 and later in the same discussion "...there should be no categorization of grounds [of unreasonableness and unfairness] as might represent a fetter on the Court's powers of development in the field of judicial review" In lsaac Tipping J did not apply the innominate ground, but he discussed it again and did apply it in Madelener v Lester (unreported, High Court, Christchurch, CP , 31 July 1996). The ground was further discussed and had its utility approved by the

54 Court of Appeal (Gault J) in The Electoral Commission v Cameron & Ors [l9971 CA 232,196; and it was considered with approval again, but not applied, by Elias J in the Auckland High Court in Wilkins v District Court at Auckland [l PRNZ 395. SUSPENSIONS OF REGISTRATION 116. The question of the Tribunal's interim suspension of the appellant's registration has been addressed in paragraphs 45 to 53 of the above submissions of Dr Taylor. Dr Taylor's view that the interim suspension, and the substantive suspension too, was inappropriate was rejected by the Court of Appeal Since then the New Zealand Court of Appeal, in its judgment of 2002 in Institute of Chartered Accountants of New Zealand v Bevan, has carefully reviewed the appropriateness of suspension of practitioners in certain circumstances and has distinguished punitive and deterrent reasons for suspension from those which are in a practical way preventive; that is to say, actually protective of the public against substandard professional practice It is submitted that the case has strong parallels with the instant one; as now discussed The judgment in Bevan was of an appeal by the lnstitute against the quashing by Fisher J, on judicial review, of an order of suspension of the practitioner and an order that he attend a new practitioners' course. The practitioner's original alleged misdemeanour was that he had failed to respond in time to a request by the Professional Conduct Committee of the lnstitute to provide an explanation of a complaint made against him by a former client. The Committee had claimed that the practitioner's failure constituted professional misconduct, and summarily suspended him. The practitioner had applied for judicial review of that and other decisions of the Committee Delivering the judgment for the Court of Appeal, after reciting the relevant facts of the case and the lnstitute rules and Code of Ethics, Keith J had this to say (beginning mid paragraph 44) in relation to the suspension imposed:

55 "[44]... Those suspension powers (paras [31]-[33] above) are not tied to any requirement under any particular rule..... We accordingly conclude that the Committee did not impose a requirement under rule 21.4(b). Mr Bevan was not in breach of an obligation under that particular rule - and no other rule was referred to". And then in paragraphs 46 'What is the consequence of that conclusion for the present proceedings? It does not follow from the conclusion that the course of action Mr Bevan followed could not properly be seen by those with responsibilities within the Institute as calling for disciplinary action. But were the charges laid by the Committee and held by the Tribunal and Council to be established properly available?" Keith J then went on, in paragraphs 49 through to 53, to say "[49]. Under the Institute's Rules, findings of guilt, in this case of the serious charge of misconduct in a professional capacity as well as of breach of the Code of Ethics, were to be published, unless the Tribunal or Appeal Council otherwise directed, in the Institute's official publication and in any other publication the Tribunal or Appeal Court directed (rules and 21.49). Further, unless otherwise directed, the hearings in both bodies were to be in public (rules ). It will be recalled that the Tribunal and Council directed wide publication of their decisions relating to Mr Bevan (paras [21] and [23]). [50]. That publicity, especially of the finding of guilt on a serious charge, is in itself a substantial penalty given the likely serious impact of the finding on the practitioner's professional reputation and practice among other members of the profession and actual and potential clients. They would recognise that the charge on which Mr Bevan was found guilty was at or near the top of the list of contraventions a chartered accountant can commit in his professional practice. There is the associated likely consequence, realised in this case, of the imposing of a penalty at or near the top of the list available to the disciplinary bodies. Indeed the two matters of guilt and penalty cannot in practice be separated.

56 1511. We return to the facts of this case. Given that the only remaining basis for the finding of guilt of professional misconduct is Mr Bevan's failure to cooperate in a timely way with the Committee's process and in particular to respond promptly to Mr Wells' complaint, how are the finding of professional misconduct and the associated penalties to be seen? We recall the relative seriousness of the finding of professional misconduct and of the penalty of suspension in the lists of charges and of penalties in the scheme of the Institute's rules (paras [36]-[38]); they are also of course serious in absolute substantive terms. We take Mr Reed's point that suspension as a chartered accountant does not place the same bar on professional practice as in some other professions. But only chartered accountants can undertake a wide range of statutory functions especially as auditors, and to repeat there is the reputational effect. [52]. In the Rules professional misconduct is coupled with conduct unbecoming an accountant and followed, apparently in a descending order of seriousness, by professional negligence or incompetence of a degree or frequency to reflect on fitness to practice or to tend to bring the profession into disrepute (para (c)) and breach of the Rules and Code of Ethics (para (e)). That ranking and the wording of the grounds themselves fully justify the opinion expressed by Fisher J that "professional misconduct" is not met by professional incompetence or deficiencies in the practice of the profession. More is required. And the failure to provide a timely response in breach of the rules must be at the outer limits (para [25] above). We have of course held that there is no breach of the rules; rather there is only a finding of a breach of the Code of Ethics. [53]. On that basis and given the limits on a court of review, how, to repeat, are the finding of professional misconduct and the associated penalties especially of suspension and attendance at the new practitioners' course to be seen? We consider that that finding and those penalties are, to quote Lord Denning MR, altogether excessive and out of proportion to the occasion; R v Barnsley Council, ex parte Hook [l WLR 1052, 1057; see also Sir John Pennycuick at 1063 and Lord Denning's reference by way of R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [l KB 338, , to a seventeenth century case in which an excessive fine

57 imposed by the Commissioners of Sewers was quashed on the ground that in law their fines ought to be reasonable." (emphases added) The Court of Appeal then went on (paragraph 54) to quash the finding of professional misconduct and confirm the quashing (made on a different basis) of the penalties of suspension and attendance at the new practitioners' course. In the process of developing the final approach of the Court of Appeal to the matters of suspension and other penalties and their effect on a practitioner's reputation and their utility in public protection, his paragraph 58, Keith J extensively quotes paragraphs 46 to 48 of the judgment of Fisher J in the court below The approach of the Court of Appeal (in its decision to uphold Fisher J's quashing of the order of suspension) is explained further in the second paragraph under 64 going on to 65 of its judgment, in which Keith J says "[65]... It is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth.

58 1651. The first of the two "other reasons" is not as significant in this case given that the accountant may still be able to carry on all or much of his practice during the period of suspension." 123. It is submitted that in the case of the appellant, because he was by reason of being bankrupt at the material times not engaged or able to engage in medical practice, the orders of suspension, both interim and final, were not justified by the need for public protection The Tribunal's approach to suspension in the applicant's case is set out under 3.8, 3.9 and 6.1 to 6.14 inclusive, of its Supplementary Decision-Reasons (beginning page 331 of the Record). It is submitted that that approach exaggerated risk to public safety and, perhaps more importantly, took no or insufficient account of how the very serious opprobrium that orders, particularly internationally published ones, of suspension of the applicant's registration would affect his professional reputation It is further submitted that the penalty of suspension to punish or to deter in the instant case was disproportional and anyhow replaceable, as an addition to censure and a published finding of guilty, by a fine fixed at the right level By itself the published finding of guilty, together with the (by statute) further automatic adjudication of guilty of professional misconduct, would have been proper and sufficiently deterrent penalties when combined with censure and fine It is further submitted that, as a "penalty", in the special circumstances of the instant case suspension was superfluous in medical practice terms, predictably ineffective and, most importantly, oppressive by reason of concurrently impugning the appellant's professional reputation on grounds deriving from incorrect, explicitly recorded findings made by the Tribunal principally (as submitted above) as a byproduct of its erroneous entertainment of the amended charge As the penalty of suspension in the case of the appellant goes (especially when coupled with the Tribunal's maximally published slur on his "insight7' and "judgment") so strongly to his professional reputation, it is further discussed (in paragraphs below) in the context of exercise of discretion to grant remedies on judicial review, in relation to the leading authority Peters v Davison [l NZLR 164 (CA).

59 COMPETENCE Competence and Practising Certificate Conditions 129. Paragraphs of the judgment of the Court of Appeal address the question of competence and cites the case of Ghosh v General Medical Council. It is considered that the reasoning of the Court of Appeal seems to be contradictory The Court of Appeal makes the point that in some extreme situation, a practitioner might (obviously depending on the facts) be so distracted by financial pressures that he does not perform his diagnosis and treatment satisfactorily. The Court then concludes that "It must therefore surely be permissible for the Council when considering the issuance of a certificate to interest itself in the applicant's ability to administer his or her practice". Then it adverts at paragraph 43 to the proposition that "three specific criticisms may not have been soundly based. The point made there was that none of them could impact on diagnosis etc and therefore could not impact on health or safety. If that is right then, again, following de Smith (in on page 347) irrelevant factors would seem to have been taken into account The Court at paragraphs then adverts to an apparent distinction made in S 60(2) between "skill and knowledge required to practise medicine" and "the practitioner's practice of medicine meets the standard reasonably to be expected of a medical practitioner". It suggests that skill and knowledge included abilities in diagnosis, treatment etc, and therefore the phrase "practice of medicine meets the standard" must refer to matters that do not relate to diagnosis and treatment etc. This, it is considered is (a) a non sequitur, and (b) inconsistent with the focus the Court in its (it is acknowledged rightly) identifying in this competence area protection of the health and safety of the public. It is submitted that for this reason, firstly, the Court's approach to the question of competence is flawed The Court's approach to the question of competence is further flawed by its confusing (again in paragraph 40) of the parameter of "competence" with the parameter of "fitness to practise medicine".

60 The Court's confusion is all the more surprising because of the fact that "Competence'' and "Fitness to Practise Medicine" are so clearly distinguished in the Medical Practitioners Act 1995 by their having been made the subjects of separate review procedures under its Part V and its Part VII, respectively It is submitted that it is Part VII, Part V, that addresses the unfitness to practice that the Court (at lines 19 to 23 in paragraph 40 of its judgment) tortuously, in tens of causation, and not quite fortuitously, suggests may arise from "For instance, the administrative mismanagement of a practice which leads to financial problems for the practitioner perhaps pushing him towards bankruptcy [which] may so distract him that it results in deterioration of his health and, as a consequence, his clinical abilities may be affected'. The particular and general effects of the Court's mistaking of "fitness to practice medicine" for "competence" here are in no way lessened but rather worsened by its immediately afterwards (in lines 23 to 25) incorrectly claiming that ''This view is supported by the provisions of s60(2) which deals with the conducting of a review of a practitioner's competency and directs the Council in that connection to consider " the subsections (a) and (b), then cited by the Court, having nothing to do with the suggested cause of the hypothetical practitioner's suggested inability to exercise his knowledge and skills In paragraph 41 of its judgment, the Court of Appeal goes on to say "Clearly the drafter of the statute saw the practice of medicine to the reasonably expected standard as encompassing more than the possession of the skill and knowledge required to practice medicine" It is submitted, however, that that "more"-additional to the skill and knowledge that is required for the safe practice of medicine--can be only something that the statute empowers the Medical Council to require to be reviewed in appropriate cases; that something being fitness to practice medicine Whatever the Court of Appeal has found to dislike about the statute's distinguishing of the concept and content of competence on the one hand, from that of fitness to practice on the

61 other, is neither here nor there. It must be simply accepted that from time to time in medical practice there will manifest some regrettable, even performance-impairing lapse of a practitioner's attention or deliberate conduct, or an effect of some other personal or professional problem he may have (such as transient or even chronic marriage problems, substandard administrative book-keeping, late paying of accounts, or difficulties managing staff) which does not come within the ambit of prescribed and practiced foundational or ongoing medical training, maintenance of medical skills, or the examination and assessment by any of those by the aforesaid statutory review procedures; and is therefore not to be held as reflecting in a professionally significant way on his insight, or his judgment, or his competence, or his fitness to practice medicine; but as reflecting only on his humanness including, sometimes, his busyness and ordinary difficulties with lie at large It is suggested that unless an attribute or absence of an attribute in a practitioner can be properly the subject of a review of competence or fitness to practice medicine, it cannot be considered to be a relevant factor in the making of any statutorily permitted assessment by the Tribunal, the Medical Council or the CAC. The factors possibly relevant to an assessment of the appellant's fitness to practice at the material times in the instant case can be construed from a reading of Part VII of the Medical Practitioners Act That Part, it is submitted, nowhere alludes to what the appellant stood accused of, but only to diagnosable physical and mental conditions which could render a practitioner medically unfit to (impliedly safely) practice medicine; inquiry into which was rabidly pursued (eg lines 25-28, Record page 325 ) by counsel for the CAC, but in the event entirely forgone by the Tribunal and the Medical Council That said, it is however suggested that limits could and perhaps should be set as to the amount of interference individual practitioners' problems coming to the attention of family, colleagues, patients or the Medical Council itself, can, individually or in combination, be allowed to have on a practitioner's performance before they do impact on his health enough to adversely affect his fitness to practice medicine and some statutorily permitted intervention--- hopefully only prophylactic---by the ruling professional body is called for. In appropriate cases those limits may be able to be determined by routine screening (not currently used by the Medical Council) and then, if indicated, by carefully individualized, timely statutory reviews done periodically and--other than in truly exceptional cases---restricted to areas of real concern. It is submitted that in the appellant's case there was little or no evidence that any of that was necessary at any time It is respectfully submitted that, in the appellant's case, the Court of Appeal, in its misidentification and then mixing of the two parameters and its subsequent hypothesising about the possible effects of anxiety (not, say, alcoholism or amnesia) upon clinical

62 performance (but not on the elements of competence), has simply but wholly plumped for the wrong parameter; fitness to practice; instead of competence, whose impugning by the Tribunal in the appellant' S case the Court of Appeal---on the evidence of its woolly reasoning discussed above---appears arguably too eager to subtly confirm when it too manifestly lacked the evidence to Not unexpectedly, the Court of Appeal had nothing to say about the decision of the CAC early on not to recommend that the registration of the appellant be suspended; or about both the CAC and the Tribunal declining to determine that his competence andtor fitness to practise medicine were seriously in question and ought to be reviewed. It is also noteworthy that, despite its professed concern about hypothetical anxieties potentially affecting the appellant, the Court of Appeal itsetf refrained from recommending review of either parameter on referral back of the appellant's case to the Medical Council; a course which was clearly open to the Court even in the absence of a cross-appeal It is suggested that in its final analysis the Court of Appeal was failed by the initial courage of its convictions and avoided defining competence for practical purposes at all; but, tellingly, indirectly admitted in line 23 in paragraph 40 of its judgment (Record page 134) that the term does refer to "clinical abilities"; at the same time being careful not to equate the sum of those abilities with competence The vice of the approach to competence taken by the Court of Appeal was---with some extra-judicial assistance---famously characterised in humorous vein by Lord Atkin in Liversidge V Anderson [l 9421 AC 206 at page In the instant case the question is, it is submitted, whether competence be made to mean fitness to practise medicine, wholly or in any of its elements. It is respectfully suggested that the answer to that question is "No"; and that to answer it by a 'Yes" would be to deny and frustrate the plain provisions of Parts V and Vll of the Act and to turn any process of systematic, accurate, and safe assessment of competence completely on its head. To answer the question with a "Maybe" or a "Sometimes", as the Court of Appeal has essayed to do, would be to transform the term "competence" into a "portmanteau word" of the most chimeric and unserviceable kind, and to expose medical practitioners to caprices and whimsies of domestic, quasi-judicial and even high judicial decision-making of a sort too uncertain, if not actually too dangerous in its potential effects on public safety to be contemplated.

63 143. This can be said because of the plain example of the instant case. In it we have a practitioner, the appellant, who stands wrongly impugned by the Tribunal---in later chorus with the Medical Council itsetf--of lack of insight and judgment; possibly the two most publicly endangering defects a medical practitioner could suffer from. Yet the Medical Council, as the body exclusively responsible for ensuring the standards of practice and the continuing safe licensure of medical practitioners, purports to remedy the appellant's alleged medical dangerousness by attaching to his practicing certificate a condition for time-limited, periodic supervision by a colleague of his choice; and that over any geographic distance in New Zealand; while completely ignoring the statutory imperative (in the allegedly endangering circumstances) for the proper, statutorily provided-for reviews of his competence and fitness to practice medicine If the Medical Council truly believes itself safe in its convictions (now endorsed by the New Zealand Court of Appeal) the question becomes, it is submitted, 'Where lies the real danger here? " 145. If, as appears likely on the evidence, the Council does not believe itself safe in its convictions, it is submitted that its decision on the "safety" conditions it claims need to be attached to the appellant's practicing certificate, should be struck down. Such a course would not of course preclude referral back and ordering of a review of the appellant's competence or fitness to practise medicine if review is deemed still necessary in the absence of the Medical Council having required one to date Finally, addressing again the irregular in-hearing inquiries and eventual decision of the Tribunal on the subject of the appellant's competence, it is submitted that the dicta of Hutcheon J.A., delivering judgment for the Court of Appeal of British Columbia in British Columbia (Milk Board) v Bari Cheese Ltd [l BCLR 2"d(47)(~~)---referred to again herein below on the subject of judicial discretion--on the identification of the source of statutory powers claiming to be exercised by a tribunal, apply, mutatis mutandi, in the instant case. On pages 80 and 81 the learned judge said "I am of the opinion that tribunals which have statutory powers coming from various legislative sources ought to make it plain on the face of their enactments which powers they are exercising. Only if that is known can there be a judgment as to whether the power is properly exercised. The citizen and a court, if a dispute arises, ought not to be left guessing what the tribunal is doing or to relying on an ex post facto assertion by the tribunal of what it was doing unsupported by any contemporaneous public expression of its intention. For us now to say that the

64 Board could have relied upon S. 39(2)(a)(ii) (subject to the question of the absence of a subsequent order in council), and therefore, it is of no consequence that it did not expressly do so, is to encourage administrative excess. We ought to, in exercising our obligation to keep tribunals within the powers conferred upon them by the laws of the Realm, to do so." Determinations of Competence Invalid 147. Section 92 of the Medical Practitioners Act 1995 describes the mandate and modes of the CAC in its primary assessments and determinations of impliedly all complaints made against practitioners. Subsection 92(2) requires that the CAC shall make its determination as soon as reasonably practicable after the complaint is referred to it The first-described determinations (under subsections 92(l)(a) and (b)) that the CAC is required to make are in respect of the practitioner's competence to practise medicine and his ability (fitness) to practise medicine; and whether its parent body the Medical Council should (using its powers described under section 123 (c) and (d)) review one or other or both of those parameters Section 93 describes the procedure to be followed by the CAC after its assessment and determination of a complaint against a practitioner; and includes (under (l)(a)) the CAC's framing of a charge and the laying of that charge before the Tribunal The good reason, relating to public safety, for the first-listing (in section 92(1)) of that function of the CAC is made significantly plainer by Section 95(a) which provides for the CAC, upon its laying of a charge before the Tribunal against a practitioner, to recommend that the practitioner's registration be interimly suspended pursuant to section 104 of the Act Taken together, the above-described provisions of section 92, 93 and 95 describe a procedure for assessment and determination by the CAC which, on any reasonable reading of it is required to be enacted promptly and thoroughly; a procedure which, in the interest of public safety, is far from being inexact or toothless. In the case of the complaint made against the appellant, the CAC (but not its later

65 appointed prosecuting counsel) followed the specified assessment and determination procedures; it is submitted, correctly The CAC itself then promptly laid before the Tribunal a charge against the appellant; of practising without a practising certificate; a charge which correctly included the statement that according to the statute such manner of practising constituted professional misconduct. Following its assessment of the complaint against the appellant, the CAC did not determine that the Medical Council should review either his competence or fitness to practise medicine. Further, in laying the charge before the Tribunal the CAC (it is submitted again, correctly) did not recommend that the Tribunal suspend the appellant's registration In the light of the above, it is submitted that it was not for the Tribunal to begin to inquire into or, worse, attempt to secondarily establish the appellant's competence or fitness to practice medicine. The Tribunal's sole proper function was simply to hear the charge the CAC had laid before it; a charge to which the appellant promptly pleaded guilty, thereby obviating any substantive hearing of it and clearing the way for a straightforward hearing of submissions as to penalty only As the record shows, the Tribunal wrongly went further, very much further, in the process of pursuing the super-added false charge, second-guessing the CAC, and purporting to re-assess the appellant's competence and perhaps fitness to practice; thereby precipitating the cascade of further errors and injustices alleged herein above The Medical Council, after the misdirected hearing by the Tribunal, also wrongly went further and, in its hearing of the appellant concerning proposed practising certificate conditions, purported to adversely embellish the Tribunal's flawed findings on his competence. Consequently, the exclusive mandate of the CAC was over-ridden, and the clear purpose and adequacy of its assessment of the appellant's competence and fitness to practise was irregularly second-guessed now by both the Tribunal and the Medical Council; both of whom arrived at wrong conclusions on both issues; one more explicitly expressed than the other. Multiplication of Disciplinary Proceedings Countermanded 156. The result was that the appellant was effectively subjected not to the statutorily prescribed CAC's single screening assessment of his competence and fitness to

66 practise, but to a second assessment (by the Tribunal); and then a surprise third assessment (by the Medical Council); neither of the second and third assessments being in any accordance at all with the statutory procedures set out for them in Parts V and VII, or authorised by any other provision of the Act The case of McGoldrick v Brent London Borough Council [1986], The Times L.R. October 24, 1986, registers the judicial condemnation of a second body's duplication of disciplinary hearing and contrary determination of matters already decided by a first body when the second body is not acting in an appellate role. In that case, Roth J granted the plaintiff a declaration that the second domestic body which purported to continue hearing a disciplinary matter was bound by the findings of the body which had already heard and determined the matter It is submitted that this principle applies to the present case, and that the application of it potentially invalidates the purported adverse findings of both the Tribunal and the Medical Council on the appellant's competence and fitness to practice medicine -----"--)'- the first of those findings having being made in the disciplinary proceedings begun before the CAC, and the second of them (made by the Medical Council) deriving significantly from the first of them (made by the Tribunal) Put simply, both the Tribunal and the Medical Council were bound by the nonegative findings of the CAC on the appellant's competence and fitness to practise medicine. Should either of the two first-mentioned bodies have wanted to take their concerns any further, the only way to do that was by the review procedures set down for those parameters by Parts V and VII of the Act; not to attempt to overturn, especially by irregular procedure, the most crucial and proper findings of the CAC Neither the Tribunal nor the Medical Council were or could have been acting an appellate role. In particular, in the context of the disciplinary proceedings against the appellant the Medical Council can be held to have acted already through its own CAC in any necessary assessment of his competence and fitness to practice, and was bound to go no further The purported determinations of the appellant's competence by both the Tribunal and the Medical Council were therefore made ultra vires, and stand to be declared invalid or to be quashed.

67 162. Further, the Medical Council's previous assertion of a need for clinical oversight of the appellant in his future working in his sub-specialty of Surgery would--according to the year Annual Practising Certificate Guide sent out to practitioners by the Medical Council- --now appear to be unsustainable; hair transplantation being categorized in the Guide as excepted from the vocational branches of medicine. A fortiori, supervision or oversight of the appellant in his bio-surgical research and basic medical science academic teaching roles cannot be claimed to be needed either; as against the Council's earlier insistence that, at least for him, it was. Regulations 163. The term "competence" is not defined anywhere in the Medical Practitioners Act 1995 (as indirectly observed by Dr Taylor in paragraph 21 above) or in the Health Practitioners Competence Assurance Act ("HPCA") 2002 which has replaced it The reason for the absence of a definition of Competence in any one of the two nongeneric and single generic Acts is understandable; individualization of the parameters of Competence being of primary importance as between the specialties and sub-specialties of Medicine itself ; and, more obviously, between and within the health practices of disciplines other than Medicine within the ambii of the HPCA But of real concern, it is submitted, should be the absence---from particularly the new generic HPCA--of a section requiring that the health agencies (including the Medical Council) charged with administering the Act, make regulations specltying assessment criteria and procedures for the positive, practical identification of the components and parameters of competence required of practitioners in the particular health providing activity; and describing protocols and standards for competence reviews, competence programmes, and recertification programmes Were such regulations required to be put in place for each discipline, then such errors as blighted the, albeit unauthorized, assessments of the appellant's competence by the Tribunal and the Medical Council in the instant case might be avoided in the future.

68 65 DISCRETION TO GRANT REMEDIES 167. The issue of the exercise of judicial discretion whether or not to grant a remedy or remedies in this case has been extensively canvassed by Dr Taylor in his submissions to the Court of Appeal; in paragraphs 67 through to 91 beginning on page 35 of these combined submissions. As with his other submissions, they are relied upon now by the appellant In addition to the cases cited by Dr Taylor, two others will be referred to below; Wislang v Medical Practitioners Disciplinary Committee & Ors [l NZLR 29 (SC); and Peters v Davison NZLR 164 (CA) Referring to paragraph 31 of the judgment of the Court of Appeal, it was inevitable that the Court would seek to put its decision on the basis of discretion if it possibly could. This is what it does in paragraph 31. The reasoning of the Court of Appeal is as follows: all errors of law or fact, including all those relevant to judicial review can be raised on an appeal, therefore, appeal is the appropriate remedy; the Medical Practitioners Act prescribes a 20 working day appeal period and the direction that the appeal be heard "as soon as reasonably practicable". What the Court of Appeal appears to be saying is that these are inconsistent with, ie excluding of, judicial review Two points arise. First, section 4 of the Judicature Amendment Act expressly recognises that judicial review is available where there is an appeal right and the approach of the Court seems to be close to saying that where there is a right of appeal there is no judicial review. Secondly, reliance on the very common provisions of (a) an appeal period, and (b) the direction that the appeal be heard as soon as reasonably practicable seems to be countermanding the clear decision in the Judicature Amendment Act not to impose a time limit for bringing judicial review and also the consistent approach from the Court of Appeal itself. The view of the Court of Appeal as to the availability of judicial review when an appeal right exists is, with respect, submitted to be wrong. It is discussed further in the context of the following case:

69 Wislang [l In his submissions, Dr Taylor, in making his case for the exercise of discretion in favour of the appellant, it is considered correctly, perceived no need to refer to the discussion on the matter by Speight J in Wislang v Medical Practitioners Disciplinary Committee & Ors [l 9741; the judge's discretionary refusal of a writ of certiorari having been partly founded on perhaps injudicious withdrawal by the appellant and his counsel from the district disciplinary committee's hearing which they had assessed as going, procedurally, in terms of natural justice, prejudicially awry; a response (withdrawal) which, as the Record here shows, the unrepresented appellant was careful not to make in the face of the at least equally frustrating proceedings of the Tribunal The additional issue in Wislang [1974], also going to refusal of certiorari to quash the decision of the committee, was the domestic appealabilty of a decision which was a nullity by reason of breaches of natural justice in the procedure of arriving at it. On the latter point, Speight J chose (after much discussion on pages 44 and 45) in declining to grant the appellant certiorari, to recant on the breadth of the dictum he had innovated on the point in Denton v Auckland City [l9691 NZLR 256 for which he had been cited with approval by Sir Robert Megarry (at F,G,H on page 446) in Leary v National Union of Vehicle Builders [l 9701 W LR More importantly, Wislang and Denton, along with other cases discussed in Wislang by Speight J, were cases which arose in settings in which the issue was the effectiveness of appeal in the "domestic" setting; and, most significantly in Wislang, whether the decision in such appeal, where breaches of natural justice had been demonstrated in the proceeding under appeal, was amenable to certiorari on the ground of nullity In the instant case there was of course no internal appeal available; the Tribunal being, in domestic terms, a tribunal of first and "final" jurisdiction The other question arises, "Should the appellant have been required to go to the District Court on an appeal in which the alleged errors of law and breaches of natural justice of the Tribunal---especially their "viciousness" in Speight J's terms--- might well not be addressed?"

70 176. It is respectfully submitted that, even had the Medical Council not subsequently erred in adopting, embellishing and aggravating the adverse effects of the wrong judgments of the Tribunal concerning the competence of the appellant, the answer to the question is "No" Further, the decision of the Medical Council on conditions it proposed for the appellant's new practising certificate, was communicated to the appellant (Record page 481) nine months after the supplementary decision with reasons (Record page 449) was handed down by the Tribunal. The Medical Council's decision was able to be reasonably anticipated as going to be following the Tribunal's in the results of its worst procedural errors, and so both decisions, being considered challengeable on very closely related and interdependent grounds, came properly within the ambit of the Judicature Amendment Act for the expeditious review of both decisions and attention to all of ancillary matters together in the same procedure It is therefore submitted that the mere existence of an alternative remedy, one for each of the above multi-facetted decisions, does not mitigate against the granting of remedies on judicial review of either of them, together or separately The question "How effective would be the alternative remedies of two separate appeals of the two decisions to the District Court compared to judicial review of both of them together?" is, it is submitted, easily answered by focussing on the errors of law and procedural unfairness at issue in both of them. The multi-facetted nature of the flawdness of both decisions, and the potential problem of their flaws not all being able to be characterised under the conventional grounds of judicial review (but perhaps in some aspects only under the innominate ground-see paragraphs above), is considered to point up the relative ineffectiveness of pursuing appeals in the District Court as alternative "remedies". Peters v Davison [l The principal issue in Peters was whether or not the widely publicised report of a commission of inquiry (the Winebox inquiry)--claimed to be in parts highly prejudicial to the plaintiff's personal and professional reputation---was amenable to judicial review for error of law. The answer of Smellie J in the Auckland High Court was "No" and he

71 struck out the review proceedings. Peters appealed, the decision of the High Court was quashed, the matter was referred back under directions for judicial review in the result of which there was substantial declaratory relief granted to the plaintiff In its widely concurring judgments, of Richardson P, Henry, Keith, Thomas and Tipping JJJJ) the Court of Appeal strongly asserted the justification for the greater availability of the discretionary remedies on judicial review in cases where the public and professional reputation of a person involved with a public inquiry stood to be damaged by publication of the report of the inquiry The Court's opinion on the point was repeatedly and strongly stated throughout its judgment in terms such as: "In Re Erebus Royal Commission (No 2) [l NZLR 618 in their joint judgment Cooke, Richardson and Somers JJ said at p 653: "'This is not an appeal. Parties to hearings by Commissions of lnquiry have no right of appeal against the reports. The reason is partly that the reports are, in a sense, inevitably inconclusive. Findings made by the Commissioners are in the end only expressions of opinion. They would not even be admissible in evidence in legal proceedings as to the cause of a disaster. In themselves they do not alter the legal rights of the persons to whom they refer. Nevertheless they may greatly influence public and Government opinion and have a devastating effect on personal reputations; and in our judgment these are the major reasons why in appropriate proceedings the courts must be ready if necessary, in relation to Commissions of lnquiry just as to other public bodies and officials, to ensure that they keep within the limits of their lawful powers and to comply with any applicable rules of natural justice."" (page 171 "The fourth factor is the central relevance in the major cases of claimed serious damage to reputation along with the absence of any of the usual remedies for that damage by way of appeal or defamation proceedings. One partial practical remedy which review proceedings have facilitated is the acknowledgment in their course by commissions of errors which have been recorded in the judgments in fairness to the reputations of the individuals affected: the Erebus (No 2), Thomas and Australian Drug commissions - [l NZLR 61 8 at pp ; [l NZLR 252 at pp 269 and 273; and [l9841 NZLJ 42 [Royal Commission of lnquiry into Drug Trafficking (The

72 Stewart Commission) (1983)l. A more substantial practical remedy is of course for the Courts to declare that the report or some part of it is procedurally or legally flawed and that that flaw has led to damage to reputation". (page 185) "In some situations condemnation of a person in a commission report will be scarcely distinguishable in the public mind from condemnation by a Court of law (Re Erebus (No 2) at p 666). Where a report calls a person's reputation into question in a direct way, both that person and the public generally have an interest in ensuring that any criticism is made upon a proper legal basis. It would be contrary to the public interest if the Courts were not prepared to protect the right to reputation in such a context (Re Erebus (No 2) at p 627). And once it is acknowledged that the Court should protect reputation or other proper interests by way of declaration after the report of a commission of inquiry has issued, there is no justification in principle in finding that review may be based on certain of the general grounds for review, but not on another: error of law." ( page 187) "The second hypothetical situation is to assume the reverse of what has in fact happened and that the Commissioner of Inland Revenue and his staff had been held by the commission of inquiry to be incompetent on a basis which was clearly wrong in law. With the Commissioner of Inland Revenue's reputation and career seriously damaged as a result of an error of law, it seems almost unthinkable that the Court would be powerless to intervene". (page 189) "Such an approach recognises the reality that the report of a commission of inquiry may have a far-reaching impact, at times greater even than the impact of a binding decision. The report may seriously affect a person's reputation and, with that damage, affect his or her way of living and their very livelihood". (page 203) "A compelling way in which to illustrate the potential impact of the commission's report is to reverse his findings and suppose that he had found,

73 on the basis of equivalent errors of law, that the Commissioner of Inland Revenue was corrupt or incompetent. The finding would not be binding in the sense that a decision of a Court of law is binding, but the impact on the Commissioner of Inland Revenue would be devastating. His reputation would be lost. His job would be almost certainly forfeited and his career as a public servant would be ruined. His prospect of finding another job would be seriously impaired and his family life could be destroyed. It is difficult to believe that a formal decision of a Court to the same effect would have more serious consequences. It cannot be sensibly suggested that in such circumstances the Court would not have jurisdiction to review the report of the commission and issue such declaratory relief as it considered appropriate." (page 204) 183. On the above authority, inter alia, and for reasons advanced by the appellant herein above, it is respectfully submitted that the adverse findings, amounting to decisions, of both the Medical Practitioner's Disciplinary Tribunal and the Medical Council of New Zealand, on the appellant's medical competence andlor fitness to practice medicine should, by way of orders on review, be declared invalid or, in the alternative, quashed; and that the decision of the Court of Appeal ought to be reversed; and that the orders sought by the appellant on judicial review in the Wellington High Court ought to be granted at the discretion of your Lordships. This completes my submissions. Dated at London this 8'h day of November Miles Wislang Appellant

74 APPENDIX