da Horta v Podiatry Board of Australia
[2017] WASC 82
•24 MARCH 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: da HORTA -v- PODIATRY BOARD OF AUSTRALIA [2017] WASC 82
CORAM: ALLANSON J
HEARD: 22 MARCH 2017
DELIVERED : 22 MARCH 2017
PUBLISHED : 24 MARCH 2017
FILE NO/S: CIV 1172 of 2017
BETWEEN: MARIO da HORTA
Applicant
AND
PODIATRY BOARD OF AUSTRALIA
Respondent
Catchwords:
Judicial review - Whether issue should be referred to the Court of Appeal - Whether certiorari lies - Turns on own facts
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 178, s 179
Rules of the Supreme Court 1971 (WA), O 56 r 5(4)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 67(1)
Supreme Court Act 1935 (WA), s 43
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr P G McGowan
Respondent: Mr M D Cuerden SC
Solicitors:
Applicant: DLA Piper
Respondent: Tottle Partners
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149
Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
ALLANSON J: The applicant is a podiatrist. On 24 November 2015 the Australian Health Practitioner Regulation Agency (AHPRA) sent him a letter advising him that it had received a 'notification', in effect a complaint, regarding his conduct as a registered health practitioner. AHPRA advised the applicant that it received and managed the complaint on behalf of the Podiatry Board of Australia.
On about 30 November 2016, the Board notified the applicant that it had decided under s 178 and s 179 of the Health Practitioner Regulation National Law to caution him. The Board gave brief reasons for its action, finding certain failings in the applicant's treatment of a named patient, including that he should have communicated risks and likely success or failure rates of any proposed treatment more clearly, should have conducted a more through 'consenting process', and that his clinical records were inadequate. It stated his professional performance 'is or may be unsatisfactory'.
The applicant applies for judicial review of the decision by way of a writ of certiorari or a declaration on two grounds: that the finding was manifestly unreasonable and denial of natural justice.
On the first directions hearing for the application, the respondent sought the following order:
The following issue be referred to the Court of Appeal for determination pursuant to RSC O56 r 5(4) and rule 67(1) of the Supreme Court (Court of Appeal) Rules:
(a)Whether a decision to impose a caution on the health practitioner pursuant to sections 178 and 179 of the Health Practitioner Regulation National Law (WA) 2010 has any or any sufficient effect upon the legal rights, duties or obligations of the health practitioner to support the grant of certiorari or declaratory relief in respect of the decision.
I refused the application and gave brief oral reasons. Counsel for the respondent advised the court that there were two unrelated matters in which a similar application might be made. As a result, I said that I would publish my reasons and include references to authorities.
I had some doubts about my power to take the course proposed by the respondent under the two rules referred to in the proposed order. I was not referred to, and did not consider, the general power under s 43 of the Supreme Court Act 1935 (WA) to reserve a question for consideration by the Court of Appeal. The power in s 43 does not affect the result, because even if there is power to refer to the issue, I am not satisfied that it would be a proper exercise of case management principles to refer a separate issue.
First, the proposed issue would not wholly dispose of the matter unless determined in favour of the respondent. Second, the general issue is not particularly novel or complex. It may not have arisen in the context of this legislation before, but whether certiorari may be granted for jurisdictional error when the impugned decision does not affect legal rights, duties, or obligations is by no means a new question: see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 (Mason CJ, Dawson, Toohey & Gaudron JJ), 595 (Brennan J); Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 158 - 159 (Brennan CJ, Gaudron & Gummow JJ), 178 (Dawson & Toohey JJ); Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [25]. Third, I am not satisfied that the issue to be referred raises particularly complex questions in the context of the National Law.
Finally, the question must be considered in the context of the National Law. The Podiatry Board is not a domestic tribunal, but was exercising a statutory power.
Even if certiorari would not lie on the ground that the decision of the board to caution does not affect legal rights of a health practitioner, that does not dispose of the question. Whether a bare declaration would lie in these circumstances may not be a question of any limit on the court's power. In Ainsworth, in their joint reasons, Mason CJ, Dawson, Toohey and Gaudron JJ said:
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that (have) not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties' (references to authority omitted). (581 ‑ 582)
And see Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 [101] ‑ [103].
I am not in a position to now determine whether a declaration would produce foreseeable consequences for the parties in this case. All of the evidence has not yet been filed. But, in my opinion, that is a question which on case management considerations should be dealt with by a single judge as part of the overall consideration of the application for judicial review.
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