SHAMYAL HAROON JAMIL In Person via AVL v MEDICAL BOARD OF AUSTRALIA [2025] SASCA 130

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE STANLEY (CIV-24-007117); THE HONOURABLE JUSTICE MCINTYRE (CIV-24-000102)) Appellant: SHAMYAL HAROON JAMIL In Person via AVL Respondent: MEDICAL BOARD OF AUSTRALIA Counsel: MS H LUU - Solicitor: MINTER ELLISON Hearing Date/s: 14/11/2025 File No/s: CIV-24-007117; CIV-25-011327 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. JAMIL v MEDICAL BOARD OF AUSTRALIA [2025] SASCA 130 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Auxiliary Justice Mitchell) 20 November 2025 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - APPEALS The applicant was found to have engaged in professional misconduct within the meaning of s 5 of the Health Practitioner Regulations National Law (South Australia) Act 2010 (SA) on the application of the Medical Board of Australia following a hearing before the South Australian Civil and Administrative Tribunal. The applicant pursued an appeal as of right to the Supreme Court pursuant to s 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) before a judge of the General Division (the appeal judge). The appeal judge dismissed that appeal, and the applicant has applied for leave to appeal to the Court of Appeal. After commencing his application for leave to appeal, the applicant applied for leave to adduce further evidence on appeal and, save in one respect, to amend his grounds consequent on the admission of that further evidence. That application was treated as having been made under r 218.7(1)(c) of the Uniform Civil Rules 2020 (SA) and, following a hearing, dismissed by a judge of the Court of Appeal (the interlocutory judge). The applicant has also applied for leave to appeal that decision. Held (the Court), refusing the application for leave to appeal the decision of the appeal judge and refusing leave to appeal the decision of the interlocutory judge: 1. Where a second appeal is in prospect it is necessary for an applicant to be astute to clearly identify real doubt about the decision under appeal. -- 1 of 30 -- 2. In connection with the decision of the interlocutory judge, it is relevant to bear in mind that, to the extent that the ruling was concerned with procedural rather than substantive rights, there is a particular reluctance to grant leave. 3. The applicant has not demonstrated that it would be in the interests of justice to grant leave to appeal. Health Practitioner Regulations National Law (South Australia) Act 2010 (SA) s 5; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71; Supreme Court Act 1935 (SA) s 50(4); Uniform Civil Rules 2020 (SA) rr 212.5(1), 213.1(1)(b), 218.7(1)(c), referred to. Briginshaw v Briginshaw (1938) 60 CLR 336, discussed. AB (A Pseudonym) v YZ (A Pseudonym) [2025] SASCA 121; Brackenridge v Bendigo and Adelaide Bank Limited [2022] SASCA 4; Brown (A Pseudonym) v The King [2025] SASCA 40; Burke v Public Trustee for the State of South Australia [2022] SASCA 64; CDJ v VAJ (No 1) (1998) 197 CLR 172; Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361; Collex Waste Management Services Pty Ltd v The Corporation of the City of Enfield (No 2) [2000] SASC 140; Ebner v Official trustee in Bankruptcy (2000) 205 CLR 337; Fernando v Medical Complaints Tribunal (2004) 12 Tas R 366; Fletcher v Australian Health Practitioners Regulation Agency [2023] SASCA 36; Fox v Percy (2003) 214 CLR 118; Goldsmith v Sandilands (2002) 76 ALJR 1024; Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) & Ors v Ernst & Young & Ors (No 2) [2005] SASC 168; Isbester v Knox City Council (2015) 255 CLR 135; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Jamil v Medical Board of Australia [2024] SASC 90; Jamil v Medical Board of Australia [2025] SASCA 103; Khoo v Bartholomaeus [2020] SASCFC 122; Lauro v Minter Ellison (A Firm) [2025] SASCA 116; Lee v Lee (2019) 266 CLR 129 ; Mallios v Commissioner of Police [2025] SASCA 66; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; Medical Board of Australia v Jamil (No 2) [2023] SACAT 104; Miojlic v City of Onkaparinga Council [2025] SASCA 2; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; M v The Queen (1994) 181 CLR 487; Narkle v The Queen (2001) 23 WAR 468; Natta v Canham (1991) 32 FCR 282; Nicholls v The Queen (2005) 219 CLR 196; Oatley v Commonwealth Director of Public Prosecutions [2021] SASCA 108; Pix v South Australian Housing Trust (2016) 125 SASR 10; Rajagopalan v Medical Board of South Australia (unreported, 2 February 1998, Judgment No. S6667); Rowe & Anor v National Australia Bank [2025] SASCA 86; R v Lawrence [2002] 2 Qd R 400; Sambastian v Police [2024] SASCA 79; Shah (A Pseudonym) v Medical Board of Australia [2022] SASC 140; SJ Berry Pty Ltd & Anor v McEntee & Anor (2022) 142 SASR 31; Slater v Ecosol Pty Ltd [2024] SASCA 95; Sunlight Nominees Pty Ltd v Zotti [2019] SASCFC 11; Testel Australia Pty Ltd v Goulding & Ors [2023] SASCA 116; Treana Holdings Pty Ltd & Anor v Kakkad & Ors [2025] SASCA 49; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Viscariello v Basedow [2025] SASCA 34; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, considered. -- 2 of 30 -- JAMIL v MEDICAL BOARD OF AUSTRALIA [2025] SASCA 130 Court of Appeal – Civil: Livesey P, Bleby JA and Mitchell AJA THE COURT Introduction 1 Dr Shamyal Haroon Jamil (the applicant) was found to have engaged in professional misconduct within the meaning of s 5 of the Health Practitioner Regulations National Law (South Australia) Act 2010 (SA) (the Act) on the application of the Medical Board of Australia (the respondent). That finding was made following a hearing before the South Australian Civil and Administrative Tribunal (the Tribunal).1 2 The applicant pursued an appeal as of right to the Supreme Court pursuant to s 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act), before a judge of the General Division.2 The appeal judge dismissed that appeal, and the applicant has now applied for leave to appeal to this Court.3 3 After commencing his application for leave to appeal, the applicant applied for leave to adduce further evidence on appeal and, save in one respect, to amend his grounds consequent on the admission of that further evidence. That application was treated as having been made under r 218.7(1)(c) of the Uniform Civil Rules 2020 (SA) and, following a hearing, dismissed by a judge of this Court.4 The applicant has also applied for leave to appeal that decision.5 Associated with that decision are two interlocutory applications seeking to amend the notice and grounds of appeal, and to stay the execution of a costs order against the applicant. 4 Before the Tribunal and the appeal judge, the applicant was legally represented. Before the interlocutory judge and this Court, the applicant is no longer legally represented. 1 Medical Board of Australia v Jamil (No 2) [2023] SACAT 104 (Member Stevens) (the Tribunal reasons). 2 Jamil v Medical Board of Australia [2024] SASC 90, [24]-[26] (McIntyre J) (the appeal judge). The appeal judge applied the principles discussed by the High Court in Fox v Percy (2003) 214 CLR 118 and Lee v Lee (2019) 266 CLR 129 discussed in Testel Australia Pty Ltd v Goulding & Ors [2023] SASCA 116, [26]-[31] (Livesey P, S Doyle JA and Stein AJA). 3 Pursuant to s 50(4) of the Supreme Court Act 1935 (SA) and r 213.1(1)(b) of the Uniform Civil Rules 2020 (SA), for it is a “judgment on appeal” from a decision of the Tribunal. 4 Jamil v Medical Board of Australia [2025] SASCA 103, [12]-[14] (Stanley JA) (the interlocutory judge), citing Burke v Public Trustee for the State of South Australia [2022] SASCA 64, [455]-[456] (Doyle JA, with whom Stanley AJA agreed), Slater v Ecosol Pty Ltd [2024] SASCA 95 [25]-[27] (Bleby JA), and Fernando v Medical Complaints Tribunal (2004) 12 Tas R 366. 5 The decision was not a decision of the Court of Appeal, but one made under r 212.5(1) by an appeal judge; Brackenridge v Bendigo and Adelaide Bank Limited [2022] SASCA 4, [7]-[8] (Livesey P). -- 3 of 30 -- [2025] SASCA 130 The Court 2 5 For the reasons that follow, leave to appeal should be refused. These reasons are set out as follows: Principles relating to leave to appeal ............................................................................................. 2 The case against the applicant ........................................................................................................ 3 The scope of the appeal before the appeal judge ........................................................................... 6 The findings by the appeal judge ................................................................................................... 7 The application for leave to appeal: the proposed grounds of appeal ............................................ 7 Proposed appeal ground 1: Briginshaw error (fabrication of the AB screenshot) ................... 9 Proposed appeal ground 2: Briginshaw error (the fabricated CD apology) .......................... 11 Proposed appeal ground 3: The challenges to CD’s credibility (appeal grounds 5 and 6) ... 13 Conclusion ............................................................................................................................... 15 Leave to appeal the decision of the interlocutory judge .............................................................. 15 The reasons of the interlocutory judge .................................................................................... 15 The proposed grounds of appeal concerning the interlocutory decision................................. 18 Proposed appeal ground 1: Errors of fact and law concerning the evidence of CD ............. 22 Proposed appeal ground 2: Error of law (misapplication of the collateral evidence rule) .... 23 Proposed appeal ground 3: Error of law, failure to properly engage with apprehended bias .................................................................................................................................................. 25 Proposed appeal grounds 4 and 5: Other errors of fact and consequential errors of law .... 26 Proposed appeal ground 6: Error of law, failure to consider model litigant obligations ....... 27 Conclusion ............................................................................................................................... 28 Conclusion ................................................................................................................................... 28 Principles relating to leave to appeal 6 The principles relating to leave to appeal to the Court are well-known.6 Where a second appeal is in prospect it is necessary for an applicant to be astute to clearly identify real doubt about the decision under appeal:7 When considering leave to appeal, this Court acts in the interests of justice and by reference to three inter-related questions: (1) whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; (2) whether the decision raises an issue of principle or general importance; and 6 AB (A Pseudonym) v YZ (A Pseudonym) [2025] SASCA 121, [6] (Livesey P and Bleby JA). See also, albeit in a slightly different context, Fletcher v Australian Health Practitioners Regulation Agency [2023] SASCA 36, [16] (Livesey P and Lovell JA). 7 Rowe & Anor v National Australia Bank [2025] SASCA 86, [31]-[32], (Livesey P and Stanley JA), and the cases there cited; Peters v Commissioner of Police [2025] SASCA 95, [21] (Livesey P and Stanley JA); Lauro v Minter Ellison (A Firm) [2025] SASCA 116, [27] (Livesey P and Bleby JA). -- 4 of 30 -- [2025] SASCA 130 The Court 3 (3) whether allowing the decision to stand would work a substantial injustice to the applicant.8 The approach required of this Court when considering whether to grant leave to appeal in connection with a second opportunity to appeal has been considered on a number of occasions:9 Of course, it is necessary to evaluate these questions recognising that this is the applicant’s second application for leave to appeal.10 Because the matter has already received comprehensive consideration by a single judge that will usually make it more difficult for an applicant to demonstrate that the interests of justice require that there be a grant of leave to appeal. Where the matter has already been considered on appeal, the applicant must be astute to clearly identify real doubt about the decision under appeal, an issue of principle or general importance, or exactly where substantial injustice arises. Complaints about the outcome, disengaged from the identification of material error, will not usually assist an applicant seeking a second appeal hearing. 7 In Fernando v Medical Complaints Tribunal, the Full Court of the Supreme Court of Tasmania considered that there was “a lesser need for finality” in a case involving professional regulation, when compared with ordinary civil proceedings, where the allegations were essentially of criminal wrongdoing.11 To some extent that is a consideration which can be applied to both applications. 8 Nonetheless, in connection with the decision of the interlocutory judge, it is also relevant to bear in mind that, to the extent that the ruling was concerned with procedural rather than substantive rights, there is a particular reluctance to grant leave.12 The case against the applicant 9 The case against the applicant was set out in an amended complaint filed on 29 November 2022. The complaint arose out of events in June and July 2020 when the applicant was working as a recently registered medical practitioner in a major hospital. Two medical students, AB and CD, were undertaking three-week work placements: AB was at the hospital between 22 June and 10 July 2020 and CD was at the hospital between 13 and 31 July 2020. Both medical students complained to the applicant’s employer about his conduct. AB’s complaint 8 McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [21] (Livesey P and Bleby JA). 9 Miojlic v City of Onkaparinga Council [2025] SASCA 2, [12]; Oatley v Commonwealth Director of Public Prosecutions [2021] SASCA 108, [39] (Livesey P, Lovell JA and Stanley AJA). 10 See, for example, M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27, [5]-[7] (Doyle and Livesey JJA); Sambastian v Police [2024] SASCA 79, [4] (Livesey ACJ and Bleby JA). See Mallios v Commissioner of Police [2025] SASCA 66, [18] (Livesey ACJ and Stanley JA), together with the cases there cited. 11 Fernando v Medical Complaints Tribunal (2004) 12 Tas R 366, [67] (Crawford J, with whom Slicer and Evans JJ generally agreed). 12 Viscariello v Basedow [2025] SASCA 34, [128]-[129] (S Doyle and David JJA); McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [22] (Livesey P and Bleby JA); Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) & Ors v Ernst & Young & Ors (No 2) [2005] SASC 168, [14] (Bleby J). -- 5 of 30 -- [2025] SASCA 130 The Court 4 concerned events on 10 July 2020, whereas CD’s complaint concerned events between 16 and 31 July 2020.13 10 Broadly, the case concerned three sets of allegations.14 The first concerned the transgression of professional boundaries by the applicant engaging in sexualised and inappropriate conduct concerning AB and CD. In the case of AB, this concerned inappropriate and sexualised messages culminating in the applicant sending AB a disappearing message which contained a nude image of himself, as well as another disappearing message which contained the same nude image, with his genitals blurred or obscured. These messages and images were sent during the evening of 10 July 2020, the last day of AB’s placement. 11 The applicant admitted sending some inappropriate messages but denied sending the nude images. 12 In the case of CD, the allegation was that the applicant had sent inappropriate and sexualised messages as well as images of his genitalia and of him in the nude. It was also alleged that the applicant had touched CD’s thigh and grabbed her hand, rubbing her hand on his thigh. It was alleged that he asked CD on a number of occasions to go for a drive with him, and that he asked her to go into an empty meeting room with him to “debrief”, and that he had purchased a vibrator and given it to her at the clinic. Finally, it was alleged that the applicant drove CD to his home where he propositioned her for sexual intercourse and played pornography on his laptop. 13 Whilst the applicant admitted some of the messaging, he generally denied these allegations. 14 The second allegation was that the applicant breached patient confidentiality by disclosing the name of a patient and making disparaging comments about her mental health to AB during their messages exchanged on 10 July 2020. The applicant denied this allegation. 15 The third set of allegations concerned the creation of two false documents which were supplied to authorities during investigations into the applicant’s conduct. The first was a screenshot concerning purported messaging between the applicant and AB which was supplied to his employer on 27 November 2020. The second was a screenshot of messages purportedly sent by CD by way of an apology which was supplied to AHPRA on 25 March 2021. The applicant denied fabricating these screenshots and said both were genuine.15 16 In the course of making its findings, it was necessary for the Tribunal to assess the credibility of each of the witnesses who gave evidence. AB was found to be an impressive witness who was both honest and generally reliable. The 13 The appeal judge, [3]. 14 The appeal judge, [10]-[15]; the interlocutory judge, [4]-[11]; See also, the Tribunal reasons, [7]-[11]. 15 See generally, the appeal judge, [10]. -- 6 of 30 -- [2025] SASCA 130 The Court 5 Tribunal said that it had a “high level of confidence” in her evidence concerning the critical issues in the case.16 17 By contrast, the Tribunal had significant reservations regarding the honesty and reliability of CD’s evidence. The Tribunal found that those reservations applied to matters where CD perceived that the truth might harm her. However, the Tribunal observed that much of CD’s evidence received strong support from other evidence. CD’s evidence was treated with considerable caution, and the Tribunal was only prepared to act on her evidence where it was supported by other evidence. The Tribunal did not reject CD’s evidence in its entirety.17 18 The evidence of a computer expert, Mr du Plessis, was not challenged and was accepted by the Tribunal. 19 The Tribunal found that the applicant was neither credible nor reliable, and cautioned that a rejection of his evidence did not prove the matters alleged against him, nor require that the evidence to the contrary should be accepted.18 20 In making its findings, the Tribunal applied Briginshaw v Briginshaw.19 That is to say, whilst facts were found on the balance of probabilities, this was not done “independently of the nature and consequence of the fact or facts to be proved”, for the Tribunal had regard to the seriousness of the allegations, the inherent unlikelihood of their occurrence, and the gravity of the consequences flowing from any findings made. Accordingly, the case against the applicant was not to be established by “inexact proofs, indefinite testimony, or indirect inferences” and weight had to be given to “the presumption of innocence and exactness of proof [was] expected”.20 21 The Tribunal recognised that the applicant had an unblemished record, and that it was necessary for clear proof before any of the conduct alleged against him should be found proved.21 22 The Tribunal found that the allegations concerning AB in connection with the first set of allegations were proved. The Tribunal found that some, though not all, of the allegations concerning CD were proved. In the case of CD, the Tribunal was not satisfied to the requisite standard that the applicant had grabbed CD’s hand and rubbed it on his thigh at work, or that he drove CD to his home and propositioned her for sexual intercourse and played pornography on his laptop.22 16 The Tribunal reasons, [52]; the appeal judge, [14]. 17 The Tribunal reasons, [37]; the appeal judge, [14]. 18 The Tribunal reasons, [38]-[39]; The appeal judge, [15]. 19 Briginshaw v Briginshaw (1938) 60 CLR 336, to be referred to as the “Briginshaw principle”; The Tribunal reasons, [13]-[14]. 20 Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J); see also Rajagopalan v Medical Board of South Australia (unreported, 2 February 1998, Judgment No. S6667) (Mullighan J, with whom Cox and Williams JJ agreed). 21 The Tribunal reasons, [15]; The appeal judge, [22]. 22 The appeal judge, [11]. -- 7 of 30 -- [2025] SASCA 130 The Court 6 23 The Tribunal found that the conduct of the applicant concerning AB was professional misconduct and, in the case of CD, the Tribunal also found that it comprised professional misconduct:23 The respondent’s conduct towards CD during the period of her placement and thereafter was sexualised and inappropriate. It is not necessary to categorise each element of that conduct. It was a continuing course of inappropriate conduct. It included inappropriate messaging, inappropriate purchase of the massager [vibrator], inappropriate touching and sending of uninvited intimate photographs of the respondent. The respondent persistently propositioned CD for sexual interaction. Regardless of CD’s willing participation in sexual banter, the respondent’s conduct clearly constituted professional misconduct. 24 As for the second allegation, the Tribunal found that this was proved and that the applicant had breached patient confidentiality by disclosing a patient’s name and making disparaging comments about her mental health. The Tribunal found that this also constituted professional misconduct.24 25 As for the third set of allegations, the Tribunal found that these were proved and that the applicant had created and provided two false documents during investigations into his conduct. The Tribunal found that this also constituted professional misconduct.25 The scope of the appeal before the appeal judge 26 It is important to recognise the extent to which the applicant appealed the case found against him. The applicant did not appeal the findings of fact concerning AB that on 10 July 2020 he sent inappropriate and sexualised messaging. He did not appeal the finding that he sent a disappearing message which contained a nude image of himself. He did not challenge the finding that he had sent a further disappearing message which contained another image of himself with his genitals blurred.26 27 In the case of CD, the applicant did not appeal the finding that he had sent inappropriate and sexualised messages. He did not appeal the finding that he had sent disappearing messages to CD which included an image of his genitalia. The applicant did not appeal the findings that he had touched CD’s thigh, that he had asked her to accompany him into an empty room to “debrief”, and that he had asked her on a number of occasions to go for a drive with him. The applicant did not appeal the finding that he gave CD a massager at work which he described as a “vibrator”.27 23 The Tribunal reasons, [344]; See the appeal judge, [11]. 24 The Tribunal reasons, [166]; See the appeal judge, [12]. 25 The Tribunal reasons, [160], [168], [323], and [345]. 26 The appeal judge, [16]. 27 The appeal judge, [17]. -- 8 of 30 -- [2025] SASCA 130 The Court 7 28 The applicant did not appeal the finding that these matters constituted professional misconduct.28 29 Accordingly, it can be seen that the applicant’s appeal before the appeal judge was concerned with the extent of his professional misconduct. 30 The applicant’s eight grounds of appeal were grouped into four categories, reflecting the three sets of allegations, or at least aspects of those allegations. 31 The applicant appealed certain aspects of the first set of allegations which concerned CD. The applicant challenged the finding that he had sent a nude image to CD on 31 July 2020 (appeal ground 3). The applicant complained that the Tribunal had failed to find that CD posted the nude image of him to a “group chat” (appeal ground 5). The applicant complained that the Tribunal should not have placed any reliance at all on the evidence of CD (appeal ground 6). 32 In relation to the second allegation, the applicant challenged the findings concerning the breach of patient confidentiality when messaging AB on 10 July 2020 (appeal ground 1). 33 In relation to the third set of allegations, the applicant challenged the findings that he had fabricated the screenshot messaging with AB on 10 July 2020 (appeal ground 2) and that he had fabricated the apology message from CD on 25 March 2021 (appeal ground 4). 34 In addition, the applicant complained about the adverse findings made by the Tribunal concerning his credibility and reliability insofar as these were made by reference to matters which were not canvassed or on which there was no evidence (appeal grounds 7 and 8). The findings by the appeal judge 35 The appeal judge found that the Tribunal had made no error of fact or law and, save in minor respects, her Honour rejected all of the complaints made and dismissed the appeal. It will be necessary to return to her Honour’s reasons when addressing the proposed appeal grounds. The application for leave to appeal: the proposed grounds of appeal 36 By a notice of appeal dated 31 July 2024, the applicant challenged the decision of the appeal judge by reference to the following proposed grounds of appeal:29 Ground 1. 1. The learned Appeal judge correctly stated and recognised the applicability of the approach articulated in Briginshaw v Briginshaw in relation to Allegation Three 28 The appeal judge, [18]. 29 Applicant’s Notice of Appeal dated 31 July 2024. -- 9 of 30 -- [2025] SASCA 130 The Court 8 (paragraphs 5.1 (a) – (c) of the Amended Complaint, the subject of Ground 2 of the Appeal), however, her Honour at [37] to [41] failed to apply that test in that: 1.1 Her Honour failed to weigh and assess all of the matters advanced by Dr Jamil concerning this ground; 1.2 Her Honour failed to give appropriate weight to the evidence, which suggested that deletions by AB may have occurred; and 1.3 Her Honour failed to consider that evidence that deletions by AB may have occurred was a reason why Dr Jamil’s account of the provenance of the screenshot could not be rejected. Ground 2. 2. The learned Appeal Judge correctly stated and recognised the applicability of the approach articulated in Briginshaw v Briginshaw in relation to Allegation Four (paragraphs 5.2 (d) – (e) of the Amended Complaint, Grounds 4 of the Appeal), however, her Honour at [48] to [54] failed to apply that test, in that: 2.1 Her Honour failed to properly weigh and assess all of the matters advanced by Dr Jamil concerning this ground; 2.2 Her Honour failed at [52] to take into account and properly consider and weigh the expert evidence of Mr du Plessis; 2.3 Her Honour failed to articulate how and in what way the evidence summarised in [54] of her Honour’s reasons could be categorised as compelling. Ground 3. 3. The learned Appeal judge erred at [55] to 59] [sic] in rejecting Grounds 5 and 6 of the Appeal, in that: 3.1 Her Honour failed to properly weigh and assess all of the matters advanced by Dr Jamil concerning these Grounds; 3.2 Her Honour erred at [57] in failing to identify error in the Tribunal’s failure to make a finding that CD had lied to the University and erred in failing to make this finding; 3.2 Her Honour further erred in failing to find that a conclusion of the issue of CD having lied to the University should have led her Honour to allow the appeal on these Grounds and should have led her Honour to dismiss any allegation which relied upon the evidence of CD or to remit the matter for re-hearing in respect of these allegations. 37 In his written submissions, the applicant supported his leave application by disparaging the notion that his appeal to the appeal judge, and to this Court, was merely concerned with “credit”:30 The proposed appeal raises fundamental questions regarding the proper application of the Briginshaw principle by a primary appellate court when reviewing findings of serious 30 Written submissions of the applicant dated 17 October 2025, [7]-[8]. -- 10 of 30 -- [2025] SASCA 130 The Court 9 misconduct made by a disciplinary tribunal. These are not mere challenges to credit; they are challenges to the legal adequacy of the evidence required to support such grave findings. The consequences for the Appellant, the effective termination of his medical career and a finding of dishonesty against his name, are of the utmost severity. Refusal of leave where the decision below is attended with sufficient doubt would result in a substantial and irremediable injustice. It is in the interests of justice that the Court of Appeal grant leave to appeal. 38 The applicant relied on well-known authorities concerning the approach to be taken to leave to appeal.31 39 As will be seen, in large measure the applicant’s strategy was to attack the credibility of the respondent’s witnesses, arguing that this was central and not merely collateral to the issues before the Tribunal and the appeal judge. To an extent, this entailed some confusion in what was meant by the use of the word “collateral”. This word was not always used in the technical, legal sense of when challenges may or may not be permitted to impeach the credibility of a witness, but also in the sense of what was central to the issues for determination. In that latter sense the applicant sought to minimise the importance of his own role and elevate what he described as the many shortcomings in the conduct of the two medical students. 40 In so far as the applicant’s arguments were not directed to attacking the credibility of the complainants, they sought to overturn the findings made by the Tribunal, upheld by the appeal judge, on the basis that they were said to have been made in a way that infringed the Briginshaw principle. Proposed appeal ground 1: Briginshaw error (fabrication of the AB screenshot) 41 It is necessary to consider the approach taken by the appeal judge to the allegation that the applicant had fabricated a screenshot of messaging with AB during the evening of 10 July 2020, which he later supplied to his employer on 27 November 2020 (being part of the third set of allegations).32 42 This contention is bound up with an issue about whether AB had deliberately deleted material, together with whether Mr du Plessis had said that this was what had occurred. Before the appeal judge, the applicant’s contention was that the only logical explanation for the absence of material was that AB had deleted it before handing her phone over for examination.33 31 Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1, [19] (Parker J); Pix v South Australian Housing Trust (2016) 125 SASR 10, [3] (Kourakis CJ); Khoo v Bartholomaeus [2020] SASCFC 122, [10] (Kelly J, with whom Livesey and Bleby JJ agreed); Shah (A Pseudonym) v Medical Board of Australia [2022] SASC 140, [222]-[223] (Blue J); The applicant specifically relied on McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [21] (Livesey P and Bleby JA). 32 The appeal judge, [10], [37]-[41]. 33 The appeal judge, [34]. -- 11 of 30 -- [2025] SASCA 130 The Court 10 43 The applicant contended that the appeal judge erred in failing to find that the Tribunal’s conclusion was, having regard to the Briginshaw principle, not available on the evidence. He contended that the appeal judge deferred almost entirely to the Tribunal’s assessment of the applicant’s account being “unlikely”, together with its preference for AB’s evidence.34 The applicant contended that the appeal judge failed to give appropriate weight to the objective forensic evidence of Mr du Plessis which tended to suggest that the messages had been deliberately deleted by AB, in a context where the applicant had consistently maintained that the messages supplied by AB were not complete.35 44 The applicant contended that this objective evidence raised a significant doubt about whether the Tribunal had failed to properly apply the Briginshaw principle, instead making findings based on “inexact proofs” which comprised an arguable error of law.36 45 However, as the appeal judge recognised, the expert evidence did not establish that messages had been deleted deliberately by AB. The appeal judge agreed with the submission by the respondent that the expert evidence on this topic was “neutral” because the possible explanations included, apart from deliberate deletion, that the expert’s forensic tools could not find messages that were “not active” and that deletion could have occurred by accident.37 46 In so far as the applicant wished to contend that there was a misapplication of the Briginshaw principle because of the effect of the expert evidence on the topic, the expert evidence did not demonstrate that AB had not been truthful. 47 In addition, the Tribunal accepted AB’s evidence on this topic, finding that she answered questions cautiously and conservatively.38 The Tribunal’s consideration of the evidence of AB was undertaken with some care.39 The appeal judge concluded:40 I have carefully considered the evidence and the Tribunal’s reasons. The Tribunal’s conclusion that the screenshot was fabricated by the appellant is underpinned by its credibility assessment of AB and its rejection of the appellant’s evidence. I see no error in the Tribunal’s conclusion that the appellant’s account of taking a screenshot that he sent to gaming friends to prove that he was speaking to a female was unlikely. Likewise, I see no error in the conclusion that the timing of the production of the screenshot was significant. The appellant only produced the screenshot after providing submissions to both his employer and AHPRA in which he did not refer to the existence of a screenshot. There was no satisfactory explanation of this. 34 Written submissions of the applicant dated 17 October 2025, [11]-[14]. 35 Written submissions of the applicant dated 17 October 2025, [13]. 36 Written submissions of the applicant dated 17 October 2025, [14]. 37 The appeal judge, [34]-[36]. 38 The Tribunal reasons, [85]. 39 The Tribunal reasons, [48]-[52]. 40 The appeal judge, [40]. -- 12 of 30 -- [2025] SASCA 130 The Court 11 48 The appeal judge referred to AB’s evidence that she did not recall sending these messages and considered that it was unlikely that she did send them, together with Mr du Plessis’ evidence that documents such as these could easily be fabricated. As the appeal judge observed:41 … Further, the purported screenshot itself appears incomplete and the content, as the Tribunal observed, appears to reverse the roles of AB and the appellant when compared to other communications that the appellant accepted passed between him and AB. I do not consider that the Tribunal fell into error in finding this allegation proven on the requisite standard. 49 In any event, and as the respondent contended before the appeal judge, the applicant’s contention depended on the premise that, apart from this screenshot of his messaging with AB, the applicant did not retain any other messaging on the topic.42 The applicant argued before the Court that this was because he had deleted the messaging. 50 The applicant has failed to establish that it would be in the interests of justice to grant leave to appeal on this ground. There was no misapplication of the Briginshaw principle. The appeal judge understood the effect of the expert evidence and its limitations. 51 Leave to appeal on this ground should be refused. Proposed appeal ground 2: Briginshaw error (the fabricated CD apology) 52 This ground concerns the second of the fabricated messages considered as part of the third set of allegations, being the messaging exchange with CD on 25 March 2021 in which CD purportedly apologised to the applicant. Again, it is contended that the appeal judge failed to properly apply the Briginshaw principle, including by failing to properly weigh and assess all of the expert evidence.43 53 In outline, the messaging purported to show an exchange between the applicant and CD at about 10.44am on 25 March 2021 in which CD said to the applicant, “I’m sorry I took your nude please just tell the police to stop asking about it”.44 This refers to the applicant’s allegation that it was CD, and not the applicant, who sent a nude image of the applicant to CD on 31 July 2020. 54 The Tribunal found that there was “force” in the submission made by the applicant that if he had sent the nude image to CD then it followed that the allegation of fabrication would be made out.45 41 The appeal judge, [41]. 42 The appeal judge, [39]. 43 See the appeal judge, [48]-[54]. 44 SACAT Exhibit C1, 766. 45 The Tribunal reasons, [322]; See the appeal judge, [50]. -- 13 of 30 -- [2025] SASCA 130 The Court 12 55 The applicant referred to what he suggested was evidence by Mr du Plessis conceding that he was “speculating”,46 and that Mr du Plessis gave evidence that demonstrated CD had not blocked the applicant in November 2020 as she claimed, this being the reason why she said she could not have exchanged messaging with the applicant.47 The applicant contended that this was “not a simple matter of credibility” because it was a matter of assigning the correct weight to the evidence, particularly the “objective, scientific evidence that demolished the central plank of CD’s denial”.48 56 Whilst the applicant appeared to concede that there were anomalies in the screenshot which weighed against him,49 these were not addressed by him in any detail. 57 The Tribunal gave a number of reasons for its finding regarding this fabrication. The applicant’s criticisms of these findings were reviewed in some detail by the appeal judge.50 58 However, the anomalies should first be mentioned. These included that Mr du Plessis analysed the metadata for the screenshot, and it indicated that it was taken at 11.20am and not 10.44am. Mr du Plessis also identified an issue with the times on the disappearing timers in the messaging. 59 The appeal judge referred to this evidence, finding that the evidence in support of fabrication was compelling. The appeal judge regarded it as particularly “telling” that the Tribunal had determined that it was unlikely CD would have sent an apology in circumstances where her approach throughout the investigation and subsequent proceedings had been one of self-preservation.51 60 Associated with the issue about whether CD, and not the applicant, had sent a naked image to CD’s phone, the Tribunal rejected the applicant’s evidence because he had referred to the secret message sent on 30 July 2020 as “his” and his explanation was thought improbable.52 61 In addition, the Tribunal relied on its rejection of the applicant’s initial and categorical denial of sending explicit images of himself to CD, and his denial of using the disappearing messages function, until he responded to the proceedings filed in the Tribunal on 6 September 2022.53 62 The suggestion that the Tribunal and the appeal judge misapplied the Briginshaw principle should be rejected. Mr du Plessis did not give evidence that 46 Trial Transcript, 567 (Mr du Plessis). 47 Written submissions of the applicant dated 17 October 2025, [15]-[16]. 48 Written submissions of the applicant dated 17 October 2025, [17]. 49 Written submissions of the applicant dated 17 October 2025, [16]. 50 The appeal judge, [50]-[51]. 51 The appeal judge, [54]. 52 The appeal judge, [30]. 53 The appeal judge, [54]. -- 14 of 30 -- [2025] SASCA 130 The Court 13 he was speculating in the broad manner contended for by the applicant.54 Mr du Plessis’s reference to having “to speculate” is properly understood as concerning only the timing set for when a message “self-destructs”.55 63 Even if it is accepted that an aspect of CD’s denial was shown to be wrong, because she had not blocked the applicant as she claimed, the Tribunal did not rely on her evidence on this matter and the appeal judge recognised that.56 64 The applicant has not demonstrated that it would be in the interests of justice to grant leave to appeal on this ground. It is not arguable that the appeal judge erred as contended. 65 Leave to appeal on this ground should be refused. Proposed appeal ground 3: The challenges to CD’s credibility (appeal grounds 5 and 6) 66 The applicant referred to the “extensive and damning findings” made by the Tribunal about CD,57 including that she gave untruthful evidence, was selective in providing material, and “displayed the propensity to be dishonest in areas where she perceived that the truth may cause her detriment”.58 67 The applicant contended that the Tribunal had failed to make a positive finding about CD having lied to the University when she retracted, without credible explanation, formal admissions of misconduct made in the presence of her solicitor. The applicant contended that the Tribunal erred, and that the appeal judge also erred in failing to find that this was an error.59 68 The applicant contended that when proper consideration was given to CD’s dishonesty, the Tribunal “as a matter of law and prudence” should have “disqualified her as witness”.60 The applicant contended that the disqualification of CD as a witness was a compelling inference,61 and any reliance on such tainted evidence to ground a serious finding of misconduct created the significant possibility of injustice, rendering the finding unsafe.62 69 The applicant contended that the approach of treating CD’s evidence with “considerable caution” and only acting on it where it had “support from other evidence” was wrong in principle.63 54 See Written submissions of the applicant dated 17 October 2025, [16]-[18]. 55 Trial Transcript, pp 566-567. 56 The appeal judge, [53], referring to the Tribunal reasons, [305]. 57 Written submissions of the applicant dated 17 October 2025, [20]. 58 The Tribunal reasons, [36]. 59 Written submissions of the applicant dated 17 October 2025, [21]. 60 Written submissions of the applicant dated 17 October 2025, [22]. 61 Relying on Fox v Percy (2003) 214 CLR 118, [28]-[30] (Gleeson CJ, Gummow and Kirby JJ). 62 Relying on M v The Queen (1994) 181 CLR 487, [9] (Mason CJ, Deane, Dawson and Toohey JJ). 63 See written submissions of the applicant dated 17 October 2025, [22]. -- 15 of 30 -- [2025] SASCA 130 The Court 14 70 The appeal judge explained that appeal ground 5, whether CD and not the applicant had posted a nude image of the applicant, had not been established and, in addition, there was no need for the Tribunal to reach a firm conclusion because it was a matter relevant to the assessment of CD’s credit. In the course of her reasons,64 the appeal judge reviewed the approach of the Tribunal:65 The Tribunal did not find conclusive evidence that CD posted the nude photograph to a group chat but observed that it may have been posted and that CD’s evidence on this topic may not have been honest. This, together with other matters set out in the Tribunal’s reasons led to … its ultimate findings as to CD’s credibility and specifically to the Tribunal’s “significant reservations concerning the honesty and reliability of CD’s evidence, particularly in relation to areas where she might perceive that the truth would harm her.” (Citations omitted) 71 The appeal judge concluded in the following terms regarding the allegation concerning the posting of a nude image by CD:66 I do not consider that this ground is established. There was no need for the Tribunal to reach a firm conclusion on this issue; it did not form part of the allegations against the appellant rather it was a matter relevant to the assessment of CD’s credit. No error has been demonstrated in relation to the Tribunal’s approach to that task. The Tribunal was mindful of issues with CD’s credit and appropriately directed itself as to the use it could make of CD’s evidence. The Tribunal expressly noted that it was only prepared to act on CD’s evidence where it had support from other evidence and appeared to be plainly truthful and reliable. It is apparent from the statement of reasons that the Tribunal was not prepared to act on CD’s uncorroborated evidence, finding certain allegations not proven as CD’s evidence could not be independently corroborated. 72 As for appeal ground 6, that it was an error for the Tribunal to place any reliance at all on the evidence of CD, the appeal judge rejected that proposition, finding that no error had been demonstrated.67 73 The approach taken by the Tribunal, and endorsed by the appeal judge, was not contrary to principle. The rejection of a witness on the ground that the evidence of the witness is affected by unreliability or even dishonesty does not mandate that every aspect of the evidence of that witness must necessarily be rejected. It is necessary for the tribunal of fact to examine the evidence with care, as was done in this case, addressing it on an issue-by-issue basis.68 As has been observed from 64 The appeal judge, [55]-[59]. 65 The appeal judge, [56]. 66 The appeal judge, [57]. 67 The appeal judge, [58]-[59]. 68 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, [119]-[120] (Kirby J): “What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial”. -- 16 of 30 -- [2025] SASCA 130 The Court 15 time to time, a finder of fact has significant latitude when determining issues relating to credibility, even in connection with findings of fraud.69 74 It was not an error of principle to refrain from making specific findings about every aspect of CD’s conduct in a case where her evidence was treated with considerable caution and generally rejected save where it was otherwise supported. In that setting, there was no error in point of principle in having regard to the evidence of CD where it was supported by other, acceptable, evidence. 75 The applicant has failed to establish that it would be in the interests of justice to grant leave to appeal on this ground of appeal. 76 Leave to appeal this ground should be refused. Conclusion 77 Subject to determining whether the applicant should be granted leave to appeal in connection with the decision of the interlocutory judge, leave to appeal the decision of the appeal judge should be refused. Leave to appeal the decision of the interlocutory judge 78 In his written submissions, the applicant contended:70 The Interlocutory Judgment dismissed the Appellant’s application for leave to adduce further evidence and to amend his grounds of appeal in the substantive appeal against the judgment of McIntyre J. This refusal has prevented the Appellant from presenting his substantive appeal on its true and complete evidentiary foundation, thereby causing a substantial injustice. It is submitted that the learned judge’s discretion to refuse the application miscarried. The miscarriage arose from a series of interconnected errors of law and fact which, individually and cumulatively, vitiated the exercise of that discretion. The decision is unreasonable, plainly unjust, and warrants reconsideration by the Court of Appeal. The reasons of the interlocutory judge 79 The interlocutory judge applied the following principles relating to an application to admit further evidence on appeal. His Honour commenced with Burke v Public Trustee for the State of South Australia, where S Doyle JA (with whom Stanley AJA agreed) addressed the principles in the following way:71 The principles governing the reception of further evidence on an appeal are well known, and do not require any detailed exposition. In short, the Court has a broad discretion under r 218.17(1)(c) of the Uniform Civil Rules 2020 (SA) to receive further evidence on a question of fact that arises on an appeal. The discretion is not circumscribed by the 69 SJ Berry Pty Ltd & Anor v McEntee & Anor (2022) 142 SASR 31, [72] (Livesey P). See also, [59]-[62] (Livesey P), [87]-[92] (Lovell JA), [239]-[242] (Bleby JA) regarding the Briginshaw principle. 70 Written submissions of the applicant dated 17 October 2025, [27]-[28]. 71 Burke v Public Trustee for the State of South Australia [2022] SASCA 64, [455]-[456]; See also Livesey P at [258] and the cases there cited. -- 17 of 30 -- [2025] SASCA 130 The Court 16 common law principles governing the reception of “fresh evidence” on appeal,72 although similar considerations apply. In particular, it will generally be relevant to consider:73 • whether the evidence was available, or could with reasonable diligence have been obtained, for use at the hearing below; • whether the evidence is such that it would have had an important influence on the decision below. While it need not necessarily be decisive, it must be more than merely relevant or useful; • the likely practical impact of receiving the evidence, including whether it is controversial or contested, and if so likely to require cross-examination, further responding evidence and/or that the matter be remitted for rehearing; and • the public interest in the finality of litigation. The relevance of the last two considerations, and in particular the public interest in finality, was emphasised by the Full Court in both Chakravarti v Advertiser Newspapers Ltd74 and Collex Waste Management Services Pty Ltd v The Corporation of the City of Enfield (No 2).75 80 The interlocutory judge recognised the particular problem associated with admitting further evidence relating to challenges to credibility findings by reference to the decision of Bleby JA in Slater v Ecosol Pty Ltd:76 Mr Slater thus seeks to adduce fresh evidence on appeal in order to raise a collateral issue that goes only to the credit of Mr Smith. Adducing evidence to that effect would not be permitted at trial. As Gleeson CJ said in Goldsmith v Sandilands,77 the adversarial system of civil litigation would collapse if the adversaries were permitted to lead evidence about every matter of contention that arises in the course of proceedings. The mischief is compounded here in that the effect of the evidence is contested. Moreover, it is said to go to the credit of Mr Smith only in the most obscure of ways, in that it seeks to draw on conduct subsequent to the trial to show that Mr Smith should have been found at trial to have been a dishonest witness. The word ‘collapse’ is insufficient to describe the damage that would be done to the adversarial system of civil litigation if litigants were to be permitted to adduce fresh evidence on appeal of subsequent conduct of a witness, the effect of which is contested and which, in any event, was only directed to the general credibility of that witness by casting a backward light over answers given at trial. The principle of finality stands firmly in the way of Mr Slater’s application. 72 CDJ v VAJ (No 1) (1998) 197 CLR 172, [52] (Gaudron J), [104]-[108] (McHugh, Gummow and Callinan JJ). 73 CDJ v VAJ (No 1) (1998) 197 CLR 172, [55] (Gaudron J), [111]-[116] (McHugh, Gummow and Callinan JJ) and [186]-[189] (Kirby J); Sunlight Nominees Pty Ltd v Zotti [2019] SASCFC 11, [39]-[41] (Blue J). 74 Chakravarti v Advertiser Newspapers Ltd (1998) 72 SASR 361, 372-373 (Doyle CJ and Perry J, Williams J agreeing). 75 Collex Waste Management Services Pty Ltd v The Corporation of the City of Enfield (No 2) [2000] SASC 140, [17], [27]-[28] (Bleby J, Doyle CJ and Lander J agreeing). 76 Slater v Ecosol Pty Ltd [2024] SASCA 95, [25]-[27] (Bleby J). 77 Goldsmith v Sandilands (2002) 76 ALJR 1024, [3] (Gleeson CJ). -- 18 of 30 -- [2025] SASCA 130 The Court 17 81 The interlocutory judge then outlined the nine categories of evidence which the applicant wished to adduce on appeal. 82 The first concerned an affidavit of AB made on 19 March 2025 in support of an application for a protection order against the applicant. 83 The second category concerned the audio recording and transcript of a conversation between the applicant and Ms Polich of AHPRA on or about 24 July 2024, which was said to reveal her partiality towards AB. 84 The third concerned the transcript of an interview between AB and a CALHN investigator, Ms Liesl Mounfield, on 9 September 2020 which was said to demonstrate prior inconsistent statements by AB. 85 The fourth concerned evidence of decisions by the Board not to take further action concerning the complaints made against AB and CD set out in “outcome letters”. These, too, were said to evidence a lack of impartiality and independence by the Board. 86 The fifth comprised extracts from an exit interview in early 2025 with Dr Anne Tonkin, the former chair of the Board, which the applicant said demonstrated bias. 87 The sixth category comprised the reasons for decision of the Tribunal on 26 October 2022, refusing an application by AB and CD for the summary dismissal of the complaints made by the applicant against AB and CD to the Equal Opportunity Commission of sexual harassment and aiding and abetting that harassment. Those complaints had been referred to the Tribunal. The applicant said that AB had told the Adelaide Magistrates Court when applying for a protection order that the application for summary judgment had been dismissed when, in fact, the application for a stay of his complaint had been granted. 88 The seventh category concerned screenshots of conduct by AB and CD which the applicant said undermined their credibility and reliability. 89 The eighth category concerned extracts from the WhatsApp group on CD’s phone which the applicant contended evidenced that CD had shared an explicit image of him with others. The interlocutory judge said the content of the data sought to be extracted was unclear because it was “not before the Court” and it was uncertain whether the data existed. The interlocutory judge found that, even assuming the person depicted was the applicant, and the image was distributed without his consent, the evidence did not support the finding that this was done by CD.78 90 Finally, under the ninth category, the applicant wished to adduce photographs taken by a Victorian police officer in 2022 of messages the applicant says were 78 The interlocutory judge, [15(viii)]. -- 19 of 30 -- [2025] SASCA 130 The Court 18 sent to the applicant’s phone by CD’s domestic partner which were offensive and threatening to him. 91 The interlocutory judge categorised most of the material as concerning collateral attacks on the credit of AB and CD, as to which his Honour viewed the principle of finality as standing firmly in the way of the application.79 92 More particularly, the interlocutory judge found that most of the material would not have had any influence on the outcome, being the evidence in categories 1, 2, 3, 4, 5, 6, 7, 8 and 9. The interlocutory judge found that some of the material was in existence before the Tribunal hearing and could have been obtained with reasonable diligence. That applied to the evidence in categories 3, 6 and 7. Finally, the interlocutory judge categorised some of the evidence as being controversial or contested, and likely to require cross-examination or further evidence, being the evidence in categories 1, 2, 3, 6, 7 and 8.80 93 Although a complaint was made about the status of the Board as a model litigant, the interlocutory judge rejected the suggested obligation to undertake investigations searching for evidence which would have assisted the applicant’s case.81 94 As for the application to amend the grounds of appeal, having rejected the admission of the further evidence, recognising that the applicant wished to adduce evidence so as to substantially amend the case he ran before the Tribunal and the appeal judge, it followed that the consequential amendments to the notice of appeal should be rejected.82 95 Insofar as proposed appeal ground 6 related to a submission that the expert, Mr du Plessis, had given evidence which was not based on specialised knowledge, the interlocutory judge rejected that amendment because that submission had not been made to the Tribunal or to the appeal judge.83 The proposed grounds of appeal concerning the interlocutory decision 96 The application for leave to appeal is made in relation to the following proposed grounds of appeal: Ground 1. ERROR OF FACT AND LAW 1. The learned judge erred in the exercise of his discretion by mistaking the facts in relation to the evidence concerning the witness CD as detailed in paragraph 15(viii) of the judgment, which in turn led to an error of law as to its relevance and admissibility. 79 The interlocutory judge, [17], citing Slater v Ecosol Pty Ltd [2024] SASCA 95. 80 The interlocutory judge, [16]. 81 The interlocutory judge, [18]. 82 The interlocutory judge, [19]-[20]. 83 The interlocutory judge, [21]. -- 20 of 30 -- [2025] SASCA 130 The Court 19 1.1 The learned judge found that the “content of the data... is unclear,” that it “remains uncertain whether the data in question even exists,” and that “the evidence does not support a finding that any of this was done by CD”. 1.2 These findings are in direct contradiction to the primary documentary evidence before the Court, namely a forensic extract of a Facebook Messenger conversation and the University of Adelaide interview transcript, which contains: (a) An unambiguous admission from the user “[redacted]” (CD): “but i sent it to a group chat so i wont lose it HAHAH”. (b) Explicit metadata attributing that message to “[redacted, CD].” (c) Direct admission in the transcript to placing the intimate image of the appellant into a group chat without consent, where that group chat was on WhatsApp and that contained three medical students and one dental student. 1.3 The learned judge’s findings therefore constitute a mistake of fact, being a specific error in the exercise of discretion as identified in House v The King. 1.4 This error of fact led to a consequential error of law, namely the finding that the evidence was not “relevant to the real issue in the proceedings,” when in fact it was directly relevant to the credibility of a central witness whose testimony the Tribunal had already treated with “considerable caution”. GROUND 2: ERROR OF LAW – MISAPPLICATION OF THE COLLATERAL EVIDENCE RULE 2. The learned judge erred in law by misapplying the principle in Slater v Ecosol Pty Ltd SASCA 95 and repeatedly characterizing new or fresh evidence going to the credibility of the primary and uncorroborated witnesses of critical facts as being a “collateral” issue, when in the circumstances of the case, the credibility of those witnesses was the central fact in issue. 2.1 The Tribunal’s primary findings of fact rested almost exclusively on its assessment of the credibility of the two complainants, AB and CD, having preferred its subjective assessment of AB over conflicting objective expert evidence. 2.2 In such circumstances, the credibility of the complainants was the foundational and determinative issue, not a collateral one. 2.3 The learned judge erred by characterizing powerful and direct challenges to the witnesses’ honesty as collateral, including but not limited to: (a) Evidence that the witness AB made objectively false statements under oath in a separate proceeding. (b) Evidence from an official transcript that demonstrated AB provided inconsistent and fabricated accounts of key events to investigators and the Tribunal. -- 21 of 30 -- [2025] SASCA 130 The Court 20 (c) The evidence, mistaken by the Court, that the witness CD admitted to distributing an intimate image of the Appellant and provided conflicting motives for doing so. 2.4 This error of principle led the learned judge to wrongly exercise his discretion under the framework of Burke v Public Trustee for the State of South Australia SASCA 64, by failing to give proper weight to the “important influence” this evidence could have had on the outcome. GROUND 3: ERROR OF LAW – FAILURE TO PROPERLY ENGAGE WITH THE SUBSTANCE OF THE APPREHENED BIAS CLAIM 3. The learned judge erred in law by failing to apply the correct legal test for apprehended bias. 3.1 The learned judge erred by requiring proof of actual influence on the decisions of the SACAT or the first appeal judge, contrary to the established objective test which asks whether a “fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question” (lsbester v Knox City Council HCA 20). 3.2 The learned judge erred by failing to address the substance of the Appellant’s submission that the bias was on the part of the prosecuting authority (the Medical Board/AHPRA), which tainted the entire investigative and prosecutorial process, irrespective of the impartiality of the subsequent judicial adjudicators. The principle in Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 was not properly considered. 3.3 The learned judge erred by failing to consider the cumulative effect of the evidence tendered in support of the bias claim, including the Board’s differential treatment of the parties, the investigator’s alleged partiality, the former Chair’s public statements, and the failure to disclose evidence of criminal conduct by a key witness. 3.4 By applying the wrong test and failing to consider these relevant matters, the learned judge’s exercise of discretion miscarried. Ground 4. ERROR OF FACT AND LAW 4. The learned judge erred in the exercise of his discretion by mistaking the facts in relation to the evidence supporting the second allegation as detailed at paragraph 15(iii) of the judgement [sic] (breach of patient confidentiality), in that these was no other evidence from any witness, including Mr. Du Plessis, that supported this finding. 4.1 The learned judge found that “In addition, the applicant submits that a prior inconsistent statement was made in relation to the second allegation proved, being the breach of patient confidentiality. The Tribunal’s finding was not based solely on AB’s evidence and therefore her credit. The Tribunal placed reliance on the evidence of other witnesses including Mr du Plessis.” 4.2 Mr Du Plessis did not give any evidence supporting that a breach of patient confidentiality occurred. -- 22 of 30 -- [2025] SASCA 130 The Court 21 4.3 The learned judge’s findings therefore constitute a mistake of fact, being a specific error in the exercise of discretion as identified in House v The King. 4.4 This error of fact led to a consequential error of law, as it caused the learned judge to wrongly discount the potential ‘important influence’ of the CALHN transcript on a finding that, contrary to his Honour’s belief, rested almost exclusively on AB’s credibility. Ground 5. ERROR OF FACT AND LAW 5. The learned judge erred in the exercise of his discretion by mistaking the facts in relation to the evidence supporting the Medical Board decision letters as detailed at paragraph 15(iv) of the judgement [sic]. 5.1 The learned judge found that the appellant ‘did not identify any evidence beyond the decision of the Board’ to support the allegation of partiality. This was a mistake of fact. The appellant’s submission, supported by evidence, was that the Board’s partiality was demonstrated by its inaction in the face of significant adverse findings made by the SACAT itself against its own witness (CD), and its willingness to excuse serious professional misconduct by them that it prosecuted in the appellant’s case. 5.2 The applicant specifically referred to the decision of the SACAT in relation to CD and the social media conduct that related to AB. 5.3 The learned judge’s findings therefore constitute a mistake of fact, being a specific error in the exercise of discretion as identified in House v The King. 5.4 This error of fact led to a consequential error of law when it affected the ability to assess if the Board and AHPRA demonstrated partiality towards the witnesses. GROUND 6. ERROR OF LAW – FAILURE TO CONSIDER A MATERIAL SUBMISSION (MODEL LITIGANT OBLIGATIONS) 6. The learned judge erred in law by failing to take into account a material consideration, namely the appellant’s substantive oral submission concerning the nature and trigger for the respondent’s ongoing duty as a model litigant, thereby miscarrying in the exercise of his discretion. 6.1 The appellant’s oral submission, as recorded in the hearing transcript, was that the respondent’s duty as a model litigant was an ongoing one owed to the court to assist in its truth-finding function. 6.2 The appellant submitted that this duty was specifically triggered during the hearing at the moment the respondent’s own witness, AB, cast doubt on the accuracy of her written CALHN statement, particularly when the respondent knew a primary audio recording existed from which that statement was derived and which could verify its integrity. 6.3 The learned judge, at paragraph 18 of his reasons, failed to engage with this specific submission. Instead, he mischaracterized the appellant’s argument as a general claim that the Board had an “obligation to undertake investigations seeking to ascertain whether there might be evidence which would assist... the applicant’s case”. -- 23 of 30 -- [2025] SASCA 130 The Court 22 6.4 Further, in response to the appellant’s submission that the Board’s failure to act was either a negligent oversight or a “deliberate attempt to not review material that they knew would or could be unhelpful to their case,” the respondent produced no affidavit evidence to clarify its state of knowledge regarding the audio recording or its contents (for example, whether it was aware of the inconsistencies between the audio and the written statement). 6.5 The respondent’s failure to produce such evidence was a relevant factor in assessing the merits of the appellant’s submission. By failing to address the appellant’s actual submission and the respondent’s evidentiary silence in the face of it, the learned judge failed to take into account a relevant and material consideration, constituting an error of the kind identified in House v The King. GROUND 7: DISCRETION MISCARRIED 7. In consequence of the errors of fact and law identified in Grounds 1, 2, 3, 4, 5, and 6 the learned judge’s exercise of discretion to refuse the application to adduce further evidence and amend the grounds of appeal was unreasonable or plainly unjust and thereby miscarried, constituting an error of the kind identified in House v The King (1936) 55 CLR 499. 97 Many of the findings made by the interlocutory judge regarding the categories of documents are not challenged. 98 The proposed appeal is largely concerned with a suggested misapplication of the collateral evidence rule, the failure to properly engage with the claim of apprehended bias, and the failure to properly consider the obligations of a model litigant. 99 Specific errors are asserted only as to some of the categories of evidence (such as categories 4 and 8). Proposed appeal ground 1: Errors of fact and law concerning the evidence of CD 100 The complaint is that the interlocutory judge made a finding which directly contradicted the evidence before the Court. That evidence included an extract from messaging in which CD, using an identifiable username, had said, “But I sent it to a group chat so I won’t lose it HAHAH” and the transcript of an interview with a university in which CD admitted placing the image into a WhatsApp group chat. 101 In addition to the suggested error of fact, the applicant contended that there was a consequential error of law because the judge found that the evidence was not “relevant to the real issue in the proceedings” when, in fact, the applicant contended that it was “directly and powerfully relevant to the credibility of a central witness”.84 84 Written submissions of the applicant dated 17 October 2025, [36]. -- 24 of 30 -- [2025] SASCA 130 The Court 23 102 This appears to be the same complaint as was the subject of appeal ground 5 before the appeal judge and concerned the posting by CD of a nude image of the applicant to a group. 103 For the purposes of determining this aspect of the application, let it be assumed that the interlocutory judge made an error of fact. Nonetheless, the difficulty with the complaint made in connection with the application for leave to appeal against the ruling made by the interlocutory judge is that the applicant is simply wishing to adduce additional material going to the same topic in circumstances where, though the Tribunal did not find conclusively that CD posted the nude image, the Tribunal accepted that it may have been posted and that CD’s evidence on the point may have been dishonest.85 104 The real purpose of this part of the application is to adduce a factual basis to generate a specific finding on an issue where, as the appeal judge recognised, it was not necessary to do more than was done by the Tribunal.86 105 The applicant has not demonstrated that it would be in the interests of justice to grant leave to appeal on proposed appeal ground 1. 106 The application for leave to appeal this ground should be refused. Proposed appeal ground 2: Error of law (misapplication of the collateral evidence rule) 107 The applicant contended that the interlocutory judge misapplied the principle in Slater v Ecosol Pty Ltd by repeatedly characterising the proposed further evidence which went to the credibility of AB and CD as going to a “collateral” issue. In fact, the applicant contended, their credibility was not collateral because it was “the foundational and determinative issue of the entire case”.87 108 The applicant relied upon the following observations made by the High Court in Nicholls v The Queen regarding the “finality rule” which prevents the proof of matters only going to the credibility of witnesses:88 The finality rule is important to the efficient conduct of litigation. Without it, the principal issues in trials would sometimes become overwhelmed by charge and counter-charge remote from the cause of action being litigated. In many cases, the finality rule also protects witnesses from having to defend themselves against discreditable allegations that are peripheral to the issues. But the common law should not have any a priori categories concerning the cases where the collateral evidence rule should or should not be relaxed. It should be regarded as a flexible rule of convenience that can and should be relaxed when the interests of justice require its relaxation. Avoiding miscarriages of justice is more important than protecting the efficiency of trials. And in cases where the rule needs to be relaxed, it is unlikely that any question of potential unfairness to a witness will arise. That 85 The Tribunal reasons, [35]; The appeal judge, [56]. 86 See the appeal judge, [57]. 87 Written submissions of the applicant dated 17 October 2025, [37]-[38]. 88 Nicholls v The Queen (2005) 219 CLR 196, [55]-[58] (McHugh J); See also Brown (A Pseudonym) v The King [2025] SASCA 40. -- 25 of 30 -- [2025] SASCA 130 The Court 24 is because the allegations will be inextricably connected with the issues. If unfairness to a witness is likely to arise — for example, because the witness is not in a position to meet the allegation — the trial judge can take steps to ensure that no unfairness arises. The statements of Thomas JA and Franklyn J to which I have referred are contrary to the approach of the Full Federal Court in Natta.89 They should not be followed in so far as they state or imply that the rule should not be relaxed in any particular category of case. The collateral evidence rule should therefore be seen as a case management rule that is not confined by categories. Because that is so, evidence disproving a witness’s denials concerning matters of credibility should be regarded as generally admissible if the witness’s credit is inextricably involved with a fact in issue. Consistently with the case management rationale of the finality rule, however, a judge may still reject rebutting evidence where, although inextricably connected with a fact in issue, the time, convenience or expense of admitting the evidence would be unduly disproportionate to its probative force. In such cases, the interests of justice do not require relaxation of the general rule that answers given to collateral matters such as credit are final. Application of the collateral evidence rule to the present appeals In the present appeals, the evidence of Ross goes to the credibility of the witness Davis. Whether Davis had said that he had been offered a deal by the police in exchange for falsely testifying that Nicholls and Coates were in the motel room when Garabedian was killed would not prove that Nicholls and Coates were not in the motel room at the time. It would not prove or disprove the killing of Garabedian. The evidence of Ross would not tend to prove or disprove, therefore, a fact in issue in the trial. But if Davis made a statement to the effect that he intended to give false evidence in order to secure the deal that the police had offered him, it would have had a material bearing on the credibility of his evidence. No jury could reasonably convict Coates or Nicholls on Davis’s evidence if Ross’s evidence was accepted. In the interests of justice, therefore, Ross’s evidence should have been admitted. In Lawrence,90 the appellant was convicted of raping a fellow prisoner. In cross-examination the complainant denied that he had told a witness that the complainant was going to set the witness up by telling prison officers that the witness had propositioned the complainant for sex. The Queensland Court of Appeal held that the trial judge had erred in failing to allow the witness to give evidence concerning this statement. The Court held that the evidence — even if it only went to the complainant’s credit — became admissible once the complainant denied having made that statement or threat. The decision does seem to stretch even the flexible standard doctrine to its limits. It is difficult to escape the conclusion that the Court thought that the evidence of the witness was admissible because it was true and, hence, critically undermined the credibility of the complainant. Probably, the best justification for the decision is that the evidence, if admitted and accepted, would have showed that the complainant was a person who was prepared to make false claims of rape in prison. It should not be seen as a prior inconsistent statement case. In that respect, the case is like Natta. 109 The applicant contended that the interlocutory judge had mischaracterised the powerful and direct challenges made to the honesty of AB and CD as merely “collateral”. 89 Natta v Canham (1991) 32 FCR 282, 300; see also Narkle v The Queen (2001) 23 WAR 468, 475-476, 479 (Murray J). 90 R v Lawrence [2002] 2 Qd R 400. -- 26 of 30 -- [2025] SASCA 130 The Court 25 110 The ruling made by the High Court in Nicholls v The Queen does not assist the applicant. Broadly, that case was concerned with the relaxation of the collateral evidence rule. That rule applied to restrict the circumstances in which evidence could be led to impeach the credibility of a witness. That was done in a case where that rule had been relied on to exclude evidence which the Court regarded as inextricably linked with a fact in issue and of importance in the determination of the case. 111 That ruling does not undermine the characterisation made by the interlocutory judge of the issues which the applicant intended would be addressed by the further material. It was collateral in the sense that it went to the credibility of the witnesses AB and CD and was secondary to the issues arising for determination. The judge did not say that the material was inadmissible. Perhaps more importantly, and relatedly, the applicant has not demonstrated that the further evidence is of such importance that, if admitted, it would have “an important influence” on the decision made by the Tribunal or the appeal judge.91 112 The applicant has not demonstrated that it would be in the interests of justice to grant leave to appeal on this proposed ground. 113 Leave to appeal this ground should be refused. Proposed appeal ground 3: Error of law, failure to properly engage with apprehended bias 114 The applicant contended that the interlocutory judge failed to apply the correct legal test for the determination of apprehended bias and, instead, required proof of actual influence on the decisions made by the Tribunal or the appeal judge. This, the applicant contended, was contrary to the established test which asked whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.92 115 The applicant contended that the interlocutory judge failed to address the substance of the submission which was that there was bias apparent on the part of the authorities, the Medical Board and AHPRA, which “tainted the entire investigative and prosecutorial process” while excusing or ignoring serious misconduct by its own witnesses.93 91 Burke v Public Trustee for the State of South Australia [2022] SASCA 64, [455] (Doyle JA, with whom Stanley AJA agreed). 92 Isbester v Knox City Council (2015) 255 CLR 135, [12] (Kiefel, Bell, Keane and Nettle JJ), referring to Ebner v Official trustee in Bankruptcy (2000) 205 CLR 337, [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 93 Written submissions of the applicant dated 17 October 2025, [45]. -- 27 of 30 -- [2025] SASCA 130 The Court 26 116 It is unclear whether this kind of contention was agitated before the Tribunal or, indeed, before the appeal judge. It would now be too late to raise this kind of contention for the first time on a second appeal.94 117 More importantly, it is doubtful whether the criticism made of the reasons of the interlocutory judge is open. His reasons should be viewed as rejecting the proposition that the material relied on by the applicant was capable of satisfying the requirements for the admission of further evidence on appeal. The notion that the interlocutory judge misapplied the relevant principles concerning apprehended bias, or failed to bring those to account in the determination of the application, should be rejected. 118 The applicant has not demonstrated that it is in the interests of justice to grant leave to appeal this proposed appeal ground. 119 Leave to appeal this ground should be refused. Proposed appeal grounds 4 and 5: Other errors of fact and consequential errors of law 120 The applicant contended that the interlocutory judge made a number of material mistakes of fact which vitiated his exercise of discretion. 121 In the case of appeal ground 4, and the evidentiary material in category 3, the applicant criticised the Tribunal’s finding that the breach of patient confidentiality was not solely based on the evidence of AB but also on the evidence of Mr du Plessis. 122 The respondent contended that Mr du Plessis did not give evidence in support of a finding that the deletions asserted by the applicant occurred. Rather, his evidence on that topic was neutral.95 123 However, even if there was any error in suggesting that there was relevant evidence from Mr du Plessis in support, the applicant did not question that this evidence was known at the time of the Tribunal hearing and could have been obtained by the exercise of reasonable diligence. In addition, the applicant did not question that the relevant inconsistencies had been put to AB in cross-examination before the Tribunal. 124 In so far as the applicant suggested that the evidence may have had an important influence on the decisions below, that must be rejected as being without foundation. 94 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 482 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); See also SJ Berry Pty Ltd and Another v McEntee and Another (2022) 142 SASR 31, [31] (Livesey P); Treana Holdings Pty Ltd & Anor v Kakkad & Ors [2025] SASCA 49, [15]-[21] (Livesey P). 95 Written submissions of the respondent dated 24 October 2025, [44]. -- 28 of 30 -- [2025] SASCA 130 The Court 27 125 As for appeal ground 5, and the evidentiary material in category 4, the applicant criticised the finding by the interlocutory judge that the applicant had not identified evidence beyond the decision of the respondent to support the allegation of partiality. The applicant contended that this mis-stated his submission. He said his submission was based on evidence of the respondent’s inaction in the face of the Tribunal’s significant adverse findings against CD, and the “social media conduct of AB”, which contrasted adversely with its vigorous prosecution of the applicant.96 126 It is difficult to see this as capable of amounting to an error of fact. The applicant wishes to point to the approach taken to AB and CD and to compare that with the approach taken to him. That does not demonstrate that the further material should be adduced. As for the finding that there was no evidence apart from the letters setting out the decisions made concerning AB and CD, the applicant has not suggested that this finding was made in error. 127 The applicant has failed to establish that it would be in the interests of justice to grant leave to appeal. 128 Leave to appeal these grounds should be refused. Proposed appeal ground 6: Error of law, failure to consider model litigant obligations 129 The applicant contended that the interlocutory judge failed to take into account a material consideration, which was the applicant’s submission about the breach by the respondent of its ongoing duties as a model litigant.97 130 The applicant contended that the submission to the interlocutory judge was that the respondent’s duty was triggered when AB cast doubt on the accuracy of her own written statement. The applicant contended that the respondent should then have produced the audio recording to assist the Tribunal in its “truth-finding function”.98 131 The applicant contended that the interlocutory judge failed to engage with this submission and, instead,99 mischaracterised his argument as a “general claim” that the Board had an obligation to undertake investigations to ascertain whether there might be evidence which would assist the applicant’s case. The applicant contended that the failure to address the submission he actually made constituted an error of law.100 96 Written submissions of the applicant dated 17 October 2025, [46]. 97 Written submissions of the applicant dated 17 October 2025, [47]-[49]. 98 Written submissions of the applicant dated 17 October 2025, [48]. 99 See the interlocutory judge, [18]. 100 Written submissions of the applicant dated 17 October 2025, [49]. -- 29 of 30 -- [2025] SASCA 130 The Court 28 132 There is nothing in this complaint. The broad way in which the interlocutory judge expressed the submission and the response to it does not suggest error. 133 The duty of a model litigant, assuming for the moment that it is correct to describe it as a duty, must be viewed in the context of proceedings which are both investigatory and adversarial in nature. It was open to the applicant or his counsel at the hearing to call for the recording or require that it be disclosed if it was thought there was some advantage to be gained from considering it. That was not done. No authority was cited for the propositions that the respondent was obliged to unilaterally take action. 134 The applicant has not demonstrated that it would be in the interests of justice to grant leave to appeal this proposed appeal ground. The ruling made by the interlocutory judge addressed the submission made by the applicant. 135 The application for leave to appeal this ground should be refused. Conclusion 136 Leave to appeal the decision made by the interlocutory judge should be refused. Conclusion 137 The applications for leave to appeal the decision of the appeal judge, and for leave to appeal the decision of the interlocutory judge, should each be refused. 138 The applications seeking to amend the appeal notice and a stay of execution of the costs order against the applicant should be dismissed. -- 30 of 30 --