ARMSTRONG and MEDICAL BOARD OF AUSTRALIA - [2022] WASAT 76

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   ARMSTRONG and MEDICAL BOARD OF AUSTRALIA [2022] WASAT 76
MEMBER:   PRESIDENT PRITCHARD
HEARD:   9 MARCH 2022
DELIVERED          :   30 AUGUST 2022
FILE NO/S:   VR 42 of 2021
BETWEEN:   APRIL ARMSTRONG
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

Catchwords:

Practice and procedure Interim application to dismiss application for review of decision of Medical Board of Australia under s 47 of the State Administrative Tribunal Act 2004 (WA) Practitioner applied for review of decision by Medical Board of Australia to caution and impose conditions on registration Where Tribunal invited Medical Board of Australia to reconsider original decision Where Medical Board of Australia varied original decision by removing conditions on registration Whether varied decision an appellable decision for purposes of the Health Practitioner Regulation National Law (WA) Whether decision to impose conditions an appellable decision for purposes of the Health Practitioner Regulation National Law (WA) Whether existence of Tribunal's jurisdiction determined only at commencement of proceedings

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 6, s 11

Health Practitioner Regulation National Law (WA), s 167, s 178, s 193, s 199(1), s 202(2), Div 10 of Pt 8

Interpretation Act 1984 (WA), s 37
State Administrative Tribunal Act 2004 (WA), s 5, s 13(1), s 27, s 31, s 47

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Ms J McKenzie

Solicitors:

Applicant	:	N/A
Respondent	:	Minter Ellison

Case(s) referred to in decision:

Citta Hobart Pty Ltd and Anor v Cawthorn (2022) 96 ALJR 476
Craig v State of South Australia (1995) 184 CLR 163
Laurent and Commissioner of Police [2009] WASAT 254
Liddell and Medical Board of Australia [2012] WASAT 120
Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Woollard v The Medical Board of Australia sitting as a Performance and Professional Standards Panel [2016] WASCA 151
Yoong and Medical Board of Australia [2015] WASAT 6

REASONS FOR DECISION OF THE TRIBUNAL

Introduction

On 4 June 2021, Dr Armstrong commenced an application in the Tribunal (Review Application) for the review of a decision by the Medical Board of Australia (Board) on 21 April 2021 to caution her and impose conditions on her registration (Original Decision). The Original Decision was made by the Board under s 178 of the Health Practitioner Regulation National Law (WA) (National Law) which is set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (HPRNL Act). The Original Decision was made by the Board following its investigation of certain aspects of Dr Armstrong's conduct, particularly her conduct at Kalgoorlie Airport on 22 March 2020 in which she engaged as a result of her concerns about the possible spread of COVID-19 following the disembarkation of passengers off a flight from Melbourne which had been diverted to Kalgoorlie.
Following a mediation, the Tribunal invited the Board to reconsider the Original Decision pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Board did so. On 18 August 2021, the Board made a decision by which it varied the Original Decision to remove the conditions it had previously imposed on Dr Armstrong's registration, and to amend the form of the caution it had previously given (Later Decision).
The Board has now made an Interim Application for the dismissal of the Review Application pursuant to s 47 of the SAT Act (Interim Application). The Board says that the Later Decision is not an 'appellable decision' for the purposes of s 199(1) of the National Law, and consequently that the Tribunal does not have jurisdiction to review the Later Decision.
Dr Armstrong disputes the contention that the Tribunal does not have jurisdiction and says the Interim Application should be dismissed.
For the reasons which follow, the Tribunal does not have jurisdiction to review the Later Decision, and the Review Application should therefore be dismissed.

The facts relevant to the Interim Application

The Board relied on the affidavits of Jenny Maree McKenzie sworn 3 September 2021 and 22 October 2021. The facts disclosed by those affidavits were not in dispute. The facts relevant to the Interim Application are as follows.
In the Original Decision, made on 21 April 2021, the Board:
(i)Imposed a caution in the following terms:
The [Board] cautions Dr April Armstrong in relation to her failure to conduct herself professionally and appropriately in accordance with her professional obligations and the Board's Code of Conduct in respect of her attendance at Kalgoorlie Airport in March 2020.
(ii)Imposed conditions on Dr Armstrong's registration which, in summary, were that she undertake a programme of education approved by the Board in relation to the appropriate behaviour, conduct and professional obligations of medical practitioners as stipulated by the Code of Conduct, and that she be mentored by another registered health practitioner in relation to the appropriate behaviour, conduct and professional obligations of medical practitioners.
The Board reconsidered the Original Decision on 18 August 2021 and decided to make the Later Decision. In the Later Decision, the Board stated that it had decided to remove the conditions it had previously imposed, in their entirety, and to amend the terms of the caution. The caution, as varied, read as follows:
The Board cautions the practitioner in response to her conduct at the Kalgoorlie-Boulder Airport in March 2020 to remind her of the importance of acting professionally and appropriately, having regard to 2.2 of the Board's code of conduct for doctors in Australia.
As a result of the Later Decision, Dr Armstrong's registration as a medical practitioner is no longer subject to any conditions.

The parties' submissions

The Board contends that the decisions of the Board which are open to review by the Tribunal are relevantly set out in s 199(1) of the National Law and do not include a decision by the Board to impose a caution. The Board says that because the effect of the Later Decision is that Dr Armstrong has been given a caution only, the Tribunal does not have jurisdiction to review the Later Decision.
Dr Armstrong effectively advanced three reasons as to why the Tribunal has jurisdiction to review the Later Decision.
First, Dr Armstrong submitted that the Tribunal has jurisdiction to review the Later Decision because the Board's decision to remove the conditions it imposed in the Original Decision constituted a 'decision … to impose or change a condition' within the terms of s 199(1)(e) of the National Law.[1] Dr Armstrong accepted that had the Board simply imposed a caution initially, the Tribunal would not have had jurisdiction to review that decision.[2] However, she submitted that the word 'change' in s 199(1)(e) of the National Law incorporated a decision to 'remove' a condition. She submitted that the word 'change' meant 'anything. If a change, whether it be black or white, good or bad, it's a change. So it doesn't have to be necessarily an improvement to be not considered a change'.[3] In short, Dr Armstrong's argument was that the word 'change' in the context of s 199(1)(e) of the National Law meant 'any alteration, including removal' of a condition on a practitioner's registration.
[1] ts 20, 9 March 2022.
[2] ts 19, 9 March 2022.
[3] ts 20, 9 March 2022.
Secondly, Dr Armstrong contended that the Tribunal had jurisdiction to deal with the Review Application when she lodged it, and that that jurisdiction continued on despite the Board's reconsideration of the Original Decision and its variation in the form of the Later Decision.[4]
[4] ts 22, 9 March 2022.
Thirdly, in an email to the Board's solicitors dated 21 September 2021, Dr Armstrong contended that the Tribunal continued to have jurisdiction, and that she was entitled to ask the Tribunal for a 'review of the decision to remove the conditions imposed AND change this to a reprimand as it is a single unit of action undertaken at the time of review'.[5] As I understood it, this was an argument to the effect that the Tribunal had jurisdiction to review the Board's characterisation of the conduct which prompted it to take action, as well as the penalty which it had imposed.
[5] Annexure JMM1 to the Affidavit of Jenny Maree McKenzie sworn 22 October 2021.
Before considering the parties' submissions it is convenient to explain the source of the Tribunal's jurisdiction under the National Law.

The source of the Tribunal's jurisdiction to deal with the Review Application

The Tribunal's jurisdiction is its authority to decide.[6] As a tribunal established by statute, the Tribunal's jurisdiction in relation to any proceeding depends on the existence of a provision of an enabling Act which gives the Tribunal authority to deal with the matter concerned.[7]
[6] Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [45] (Gordon, Edelman and Steward JJ) quoting Craig v State of South Australia (1995) 184 CLR 163 at 179.
[7] SAT Act, s 13(1).
There was no dispute that the source of the Tribunal's jurisdiction under the National Law lies in s 199. Section 199(1) of the National Law provides:
(1)A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision —
(a)a decision by a National Board to refuse to register the person;
(b)a decision by a National Board to refuse to endorse the person's registration;
(c)a decision by a National Board to refuse to renew the person's registration;
(d)a decision by a National Board to refuse to renew the endorsement of the person's registration;
(e)a decision by a National Board to impose or change a condition on a person's registration or the endorsement of the person's registration, other than —
(i)a condition relating to the person's qualification for general registration in the health profession; and
(ii)a condition imposed by section 112(3)(a);
(f)a decision by a National Board to refuse to change or remove a condition imposed on the person's registration or the endorsement of the person's registration;
(g)a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board;
(h)a decision by a National Board to suspend the person's registration;
(i)a decision by a panel to impose a condition on the person's registration;
(j)a decision by a health panel to suspend the person's registration;
(ja)a decision by a health panel not to revoke a suspension;
(k)a decision by a performance and professional standards panel to reprimand the person.
The Tribunal is the responsible tribunal for the purposes of the provisions of the National Law as they apply in Western Australia.[8] In so far as an appeal to this Tribunal as the responsible tribunal is concerned, a reference in the National Law to an 'appeal' against a decision is a reference to a review of a decision as provided under the SAT Act.[9]
[8] HPRNL Act, s 6.
[9] HPRNL Act, s 11.
The various decisions able to be reviewed under s 199(1) reflect the decisions the Board is empowered to make under s 82, s 89, div 8 of Pt 7, s 112, s 125, s 156, s 167, and s 177 of the National Law.
According to its terms, the Original Decision was a decision made pursuant to s 178(2)(a) and s 178(2)(c) of the National Law. Following the receipt of complaints (notifications) in relation to alleged conduct by Dr Armstrong, the Board decided to conduct an investigation into those notifications. After considering the report of an investigation, the Board has various courses open to it.[10] They include to take no further action,[11] or to take action the Board considers necessary or appropriate (under another division of Pt 8 of the National Law), or to refer the matter to another entity (such as a health complaints entity) for investigation.[12]
[10] National Law, s 167.
[11] National Law, s 167(a).
[12] National Law, s 167(b).
Relevantly for present purposes, if the Board reasonably believes, for any reason, that the way a registered health practitioner practises their health profession, or the practitioner's professional conduct, is or may be unsatisfactory; and the Board reasonably believes that the matter is not required to be transferred to the Tribunal under s 193 of the National Law or to a panel, the Board may deal with the matter itself.[13] In that event, the Board is empowered to take one or more of the actions set out in s 178(2) in respect of the registered health practitioner. Those actions are to caution the health practitioner, accept an undertaking from the health practitioner, impose conditions on the practitioner's registration, or refer the practitioner to another entity, such as a health complaints entity, for investigation.
[13] National Law, s 178.
The Original Decision constituted a decision by the Board to take two actions of the kind set out in s 178(2) of the National Law - to caution Dr Armstrong and to impose conditions on her registration as a medical practitioner. In order to do so, the Board necessarily had to have a reasonable belief that Dr Armstrong's practice of medicine, or her professional conduct, was, or may have been, unsatisfactory, and that it was not necessary to refer the matter to the Tribunal, or to a panel. The Board concluded that it had a reasonable belief that Dr Armstrong's professional conduct was unsatisfactory and that it was not necessary to refer the matter to the Tribunal, or to a panel, but rather that it was open to the Board to deal with the matter itself under Div 10 of Pt 8 of the National Law.
The Review Application sought a review of the Original Decision. Under s 199(1) of the National Law, a person who is the subject of any of the described decisions may 'appeal' against that decision to the Tribunal. The list of decisions refers to individual actions which the Board may take in various cases (including those where it refuses to register a practitioner, or refuses to renew a practitioner's registration, as well as those cases where it has taken action under s 178 of the National Law).
Not all of the actions the Board is empowered to take under s 178(2) of the National Law fall within the decisions included in the list of 'appellable decisions' in s 199(1) of the National Law. A decision by the Board to impose a caution is not an appellable decision.[14] Nor is a decision to refer a matter to another entity, such as a health complaints entity. In so far as a caution is concerned, it may be that the absence of a review is explained by the absence of any impact which a caution has on the legal rights and obligations of the health practitioner.[15]
[14] Woollardv The Medical Board of Australia sitting as a Performance and Professional Standards Panel [2016] WASCA 151 (Woollard) at [69] [70].
[15] Woollard at [70].
As Dr Armstrong conceded, had the Original Decision been solely to impose a caution on Dr Armstrong, it would not have been an appellable decision under s 199(1) of the National Law, and the Tribunal would not have had jurisdiction to deal with it.
However, at least in so far as the Original Decision included a decision to impose a condition on Dr Armstrong's registration, it was an appellable decision under s 199(1) of the National Law, and the Tribunal had jurisdiction to deal with it.
It is not necessary to resolve the question whether the existence of the Tribunal's jurisdiction to review that part of the Original Decision that concerned the imposition of conditions meant that the Tribunal had jurisdiction to review the entirety of the Original Decision (including the decision to give a caution to Dr Armstrong). (That is because the Original Decision has been varied by the Later Decision and, as I explain later in these reasons, the existence of the Tribunal's jurisdiction does not fall to be established solely at the time an application is filed to commence a proceeding. Rather, the Tribunal must have jurisdiction throughout its dealing with a proceeding, up to the point when it makes a final determination.)
As the Original Decision has now been varied by the Later Decision, I turn to consider the effect of that decision.

The operation of s 31(3) of the SAT Act

At any stage of a proceeding for a review of a decision, the Tribunal has the power to invite a decision-maker to reconsider the decision under review.[16] That is what occurred in this case when, following a mediation, the Tribunal invited the Board to reconsider the Original Decision.
[16] SAT Act, s 31(1).
In this case, the Board varied the Original Decision to make the Later Decision.[17]
[17] SAT Act s, 31(2).
The effect of the variation of a decision, or the substitution of a new decision, on the decision originally under review, is set out in s 31(3) of the SAT Act. Sometimes the applicant for review will be satisfied with the varied or substituted decision and will withdraw the review application. If that does not occur, however, then the review continues, and the proceeding for a review 'is taken to be for the review of the decision as varied or the substituted decision'.
In the present case, as Dr Armstrong did not withdraw the Review Application following the Board's decision to vary the Original Decision, the Review Application continues, and the decision under review is taken to be the Later Decision rather than the Original Decision.
The decision now under review, therefore, is the Later Decision. The Later Decision is, in effect, a decision by the Board to impose a caution on Dr Armstrong in the terms set out above at [8]. As I have already explained, a decision to caution a practitioner is not an appellable decision. Even if the Later Decision is characterised as a decision to impose a caution and also a decision to remove conditions on

Dr Armstrong's registration, neither is an appellable decision under s 199(1) of the National Law. On either approach the Tribunal does not have jurisdiction to review the Later Decision.
However, I turn to consider Dr Armstrong's submissions that the Tribunal nevertheless continues to have jurisdiction to deal with the Review Application.

The meaning of the word 'change' in s 199(1)(e) of the National Law

Dr Armstrong's first contention was that the Later Decision fell within the Tribunal's jurisdiction under s 199(1)(e) because it constituted a decision by the Board to 'change a condition on [her] registration' in that it removed the conditions imposed by the Board under the Original Decision. I do not accept that contention.
The Later Decision stated, on its face, the practical implications of the Board's decision - namely that the Board had decided to 'vary the Decision by removing the conditions imposed on your registration under section 178(2)(c) … and amending the form of the caution made under s 178(2)(a)'. However, what the Board actually did must be understood in the context of the power it had by virtue of s 31 of the SAT Act and under s 178 of the National Law.
Having been invited by the Tribunal to reconsider the Original Decision, the Board was empowered to affirm, vary or set aside that decision.[18] In order to determine its course of action, the Board had to re-exercise the power in s 167, and if it determined to take action itself, it was entitled to take one or more of the actions set out in s 178(2). In that respect, the Board had to reconsider all of the information gathered in the investigation, together with any new information that had come to light, and again consider whether it should take action itself, and if so, what that action should be, having regard to the various courses of action open to it under s 178(2). Understood in that way, what the Board actually did was to determine that the only action from the list in s 178(2), which was a necessary or appropriate response to Dr Armstrong's unsatisfactory professional conduct, was to caution her.
[18] SAT Act, s 31(2).

The Later Decision clearly did not impose a condition on Dr Armstrong's registration. Nor, in my view, can it be regarded as a decision to 'change' a condition on Dr Armstrong's registration, for the purposes of s 199(1)(e), for three reasons.
First, the ordinary meaning of the word 'change', when used as a verb (as it is in s 199(1)(e)) is 'to make different; alter in condition, appearance'; 'to exchange for something else'.[19] The Later Decision did not merely vary the terms of the conditions which had been imposed in the Original Decision, or add additional conditions, or remove some conditions but leave others. Had it done any of those things, the Later Decision might be said to have 'changed' the conditions, in the sense that it would have 'made different' the conditions in the Original Decision or exchanged one or more conditions for others. What the Board in fact decided, however, was not to impose any conditions. It effected that decision by removing the conditions imposed by the Original Decision. So understood, the Later Decision is not an appellable decision within s 199(1)(e) of the National Law. It was not a decision to 'change' a condition on Dr Armstrong's registration.
[19] Macquarie Dictionary Online (2022).
Secondly, the contention advanced by Dr Armstrong is that the meaning of the words 'change a condition' is capable of including 'remove a condition'. The context in which s 199(1)(e) appears militates against that conclusion. When s 199(1) is viewed as a whole, it is apparent that the Parliament contemplated that the words 'change' a condition and 'remove' a condition had different meanings. That much is apparent from s 199(1)(f) which refers to a decision by a Board to 'refuse to change or remove a condition on the person's registration'.
In contrast to the ordinary meaning of the word 'change', the word 'remove', when used as a verb, includes 'to move from a place or position; take away; take off' and 'to do away with; put an end to'.[20] The Board's Later Decision removed the conditions imposed on Dr Armstrong's registration by the Original Decision, in that it did away with them entirely and put an end to them. That was quite different from simply 'changing' the conditions.
[20] Macquarie Dictionary Online (2022).
Thirdly, the concept of imposing or changing a condition under s 199(1)(e) clearly contemplates that the end result of the action taken by the Board will be that the practitioner's registration will be subject to at least one condition. The result of the Later Decision, however, was that Dr Armstrong's registration was not subject to any conditions.

At what point must the existence of the Tribunal's jurisdiction be determined?

Dr Armstrong's second contention was that the Tribunal had jurisdiction to deal with the Review Application at the time when she lodged it, and that that jurisdiction continued on despite the Board's reconsideration of the Original Decision and its variation in the form of the Later Decision. That contention must be rejected.
The Tribunal has a duty and a concomitant authority to ensure that every proceeding before it is, and remains, within its jurisdiction to hear and determine.[21]
[21] Citta Hobart Pty Ltd and Anor v Cawthorn (2022) 96 ALJR 476 (Citta) at [17] - [21].
The Tribunal will consider the existence of its jurisdiction whenever a proceeding is commenced. However, even if it is satisfied that it has jurisdiction at that point, the Tribunal's jurisdiction to deal with the proceeding may subsequently fall away by virtue of changes to the law or to the relevant factual substratum of the proceeding, or because of defences raised in the course of the proceeding itself. By way of example, if the Parliament repeals an enabling Act, the repealing statute may manifest an intention that the proceeding previously able to be brought in the Tribunal must instead be pursued in another forum.[22] Similarly, if, as a result of a defence raised by a respondent, the proceeding as a whole falls within federal jurisdiction, the Tribunal will have no jurisdiction to deal with it.[23]
[22] Cf Interpretation Act 1984 (WA), s 37.
[23] Citta at [23] - [28].
In the present case, the Board's reconsideration of the Original Decision has resulted in a Later Decision which is different from the Original Decision. Before the Tribunal proceeds to conduct a review of the Later Decision it must be satisfied that it has jurisdiction to do so, by ascertaining whether the Later Decision is an appellable decision for the purposes of s 199 of the National Law.
Whether characterised as a decision solely to impose a caution, or a decision to impose a caution and to remove conditions, the Later Decision is not an appellable decision as described in s 199(1) of the National Law.
At first blush, s 31(3) of the SAT Act might be understood to affect that conclusion. On closer analysis, it does not.
As already noted, s 31(3) of the SAT Act provides that if the decision‑maker varies the decision or sets it aside and substitutes a new decision, then the proceeding for a review is taken to be for the review of that varied or substituted decision. The effect of s 31(3) is that the applicant for review does not need to commence a fresh proceeding for a review of the varied or substituted decision. Rather, the review will, without more, continue, and will pertain to that varied or substituted decision. However, s 31(3) says nothing about whether the Tribunal will necessarily have jurisdiction to deal with the varied or substituted decision.
For the reasons already explained, under s 199(1) the Tribunal does not have jurisdiction to review a decision to impose a caution or a decision to remove conditions from a practitioner's registration. Neither s 31(3), nor any other provision, of the SAT Act can overcome that absence of jurisdiction. The source of the Tribunal's review jurisdiction lies in the enabling Act (that is, the National Law)[24] and the enabling Act prevails in the event of any inconsistency with the SAT Act.[25]

The nature of the decision under review

[24] SAT Act, s 13(1).

[25] SAT Act, s 5.

I turn, finally, to Dr Armstrong's contention that the Tribunal has jurisdiction to review the Board's characterisation of the conduct which prompted it to take action, as well as the penalty which it had imposed. As I understood the import of the contention it was that the course of action taken by the Board in relation to the conduct was not determinative of the existence of the Tribunal's jurisdiction.
With respect, that contention misunderstood the manner in which the National Law confers jurisdiction on the Tribunal. As is apparent from s 199(1), the criterion for the existence of the Tribunal's review jurisdiction is the outcome of the Board's decision. The Tribunal will only have jurisdiction if the decision for which a review is sought is one of those with an outcome specified in s 199(1). That does not mean that, in conducting the review, the Tribunal looks only to the outcome in question, and not to the underlying legal and factual basis for it. On the contrary, an appeal under s 199 necessarily extends to the conduct which leads to the outcome.[26]
[26] Liddell and Medical Board of Australia [2012] WASAT 120 at [26]; Yoong and Medical Board of Australia [2015] WASAT 6 at [47] - [49] and [55] (Curthoys P); Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203 at [118] - [119] (Mitchell J).
In a case of the present kind (that is, where the Board took action following the investigation of a notification) the Tribunal is required to stand in the shoes of the Board under s 167 of the National Law, to consider the investigator's report, and any other evidence adduced at the hearing of the review,[27] and to determine the correct and preferable decision at the date of its decision.[28] The Tribunal must determine what action, if any, is required. In the exercise of jurisdiction under s 199(1) of the National Law, the Tribunal has power to confirm the appellable decision, amend the appellable decision or substitute another decision for the appellable decision, and in substituting another decision, the Tribunal has the same powers as the Board.[29] The Tribunal is therefore entitled to take no action under s 167, if it considers that no action under s 178(2) is necessary or appropriate. Alternatively, the Tribunal may decide that taking action under s 178(2) is the correct and preferable decision, either by imposing a caution, accepting an undertaking, imposing conditions of a different kind from that imposed by the Board, or referring the matter to another entity for investigation.
[27] SAT Act, s 27(1).
[28] SAT Act, s 27(2).
[29] National Law, s 202(2).
In determining what decision it should make, the Tribunal will consider the appropriate charactisation of alleged conduct by the practitioner. That will require the Tribunal to decide whether it considers that the Board correctly characterised the nature of the conduct of the practitioner and whether the correct and preferable decision is to take no action, or to take action under s 178(2) of the National Law and if so, what action, or to refer the matter to another entity.
While the Tribunal may thus consider the factual and legal considerations which underlay the Board's decision in respect of the practitioner's conduct, the existence of its jurisdiction to do so depends on whether the outcome of the Board's decision was one set out in s 199(1). If that criterion is not met, then the Tribunal has no authority to review the Board's decision in any respect.
In the present case, because the Later Decision was a decision to impose a caution on Dr Armstrong, or a decision to remove the conditions imposed by the Original Decision, it was not within the Tribunal's review jurisdiction under s 199(1) of the National Law. Consequently, no part of the Later Decision is able to be reviewed by the Tribunal.

Resolution of the Interim Application

The Tribunal has the power to dismiss or strike out a proceeding to which s 47 applies.[30] Section 47 applies if the Tribunal believes that a proceeding is, amongst other things, misconceived or lacking in substance, or is otherwise an abuse of process.[31] A proceeding for the review of a decision which the Tribunal has no jurisdiction to review is one which is clearly misconceived, lacking in substance or an abuse of the process of the Tribunal.[32]
[30] SAT Act, s 47(2).
[31] SAT Act, s 47(1).
[32] Cf Laurent and Commissioner of Police [2009] WASAT 254 at [21] - [23]. Quite apart from the power in s 47 of the SAT Act, the Tribunal has power to dismiss a proceeding in respect of which it has no jurisdiction: see Citta at [28].
Because the Tribunal does not have jurisdiction under s 199(1) to review the Later Decision, the Review Application must be regarded as misconceived, and lacking in substance. Its continuation would clearly constitute an abuse of the process of the Tribunal.
That being the case, the Review Application should be dismissed pursuant to s 47(2) of the SAT Act.
In the Interim Application the Board did not seek an order as to costs. It simply sought that there be no order as to costs.
Orders
Subject to hearing from the parties as to the terms of the orders, the orders I propose to make are:
1.Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) the application for a review dated 4 June 2021 is dismissed.
2.There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
IH
Research Associate to the Honourable Justice Pritchard
30 AUGUST 2022