Fidge v Medical Board of Australia
[2023] VSCA 272
•9 November 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0070 |
| JULIAN FIDGE | Applicant |
| v | |
| MEDICAL BOARD OF AUSTRALIA | Respondent |
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| JUDGES: | McLEISH, NIALL and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 October 2023 |
| DATE OF JUDGMENT: | 9 November 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 272 |
| JUDGMENT APPEALED FROM: | Fidge v Medical Board of Australia (Supreme Court of Victoria, Cavanough J, 11 July 2022) |
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PRACTICE AND PROCEDURE – Construction of stay order – Whether utility in granting leave to appeal – Where conditions the subject of stay order since set aside – Not appropriate to grant leave merely for purpose of enabling Court to make generalised statements – Not in interests of justice to grant leave to consider interlocutory order that has ceased to have any practical significance – Leave to appeal refused.
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| Counsel | ||
| Applicant: | In person | |
| Respondent: | Mr NM Wood SC with Mr JP Stoller | |
Solicitors | ||
| Applicant: | — | |
| Respondent: | Australian Government Solicitor | |
MCLEISH JA
NIALL JA
TAYLOR JA:
At the hearing of this application on 18 October 2023, we refused leave to appeal. These are our reasons for doing so.
The applicant is a registered medical practitioner who practices as a general practitioner in northeast Victoria. The respondent (‘the Board’) is established under the Health Practitioner Regulation National Law (‘the National Law’).[1] The Board’s functions include the regulation of registered medical practitioners.
[1]Section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 provides that the National Law, as in force from time to time, applies as a law of Victoria.
On 19 August 2021, the Board decided to impose certain conditions on the applicant’s registration under s 178(2)(c) of the National Law (‘the Decision’; ‘the Conditions’). The Conditions included, in substance, that he must undertake and successfully complete a program of education, approved by the Board, in relation to the appropriate use of social media in adherence with the Board’s Code of Conduct.
After making the Decision, the Board included in the National Register of Medical Practitioners (‘the Register’), which it is required to keep pursuant to div 3 of pt 10 of the National Law, the fact that the Conditions had been imposed on the applicant’s registration.
On 30 August 2021, the applicant appealed to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) against the Decision, and applied for an order staying its operation.
On 8 October 2021, the Tribunal made an order (‘the October Order’) under s 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) in the following terms:
Under s 50(3) of the [VCAT Act], the decision of the respondent of 31 August 2021 [sic] to impose a condition requiring the applicant to undertake education, is stayed until final determination of this proceeding, or further order of the Tribunal.
The Board annotated the Register by stating that the Tribunal had ‘granted a stay on the operation of the decision of the Medical Board of Australia (dated 31 August 2021 [sic]) to impose the below conditions’, which ‘remains in place until such time as the matter is heard and determined by the [Tribunal]’, before setting out the (stayed) Conditions.
On 17 November 2021, the applicant filed submissions in the Tribunal. In those submissions, the applicant stated that he ‘seeks orders that the [Board] comply with’ the October Order ‘by restoring the status quo that existed prior to the decision by removing the stayed conditions from the [Register] until final determination of this proceeding or further order of the Tribunal’. His concluding submission was:
the [Board] has wilfully abused their power by refusing to abide by the law and has actively obstructed the Tribunal by placing a notice on the applicant’s public registration, rather than taking down the conditions and restoring the status quo. The law of stays is not new, difficult to find or complex. The actions of the [Board] demonstrate contempt for the law, the applicant and the Tribunal.
The hearing before the Tribunal
A directions hearing was heard by the Senior Member who had earlier granted the stay. During the hearing, which dealt with a number of topics, the Senior Member turned to the stay. Whether or not he was correct, it is clear from the hearing that the Senior Member understood the applicant to be seeking ‘an extension’ of the stay so as to require the Board to remove the Conditions from the Register.
In that respect the Senior Member referred to there being two primary considerations that led him to grant the stay, namely the impact of the Conditions on a second medical practitioner and on the community. The Senior Member referred to submissions made by the Board to the effect that the Tribunal did not have power to direct the Board to remove the Conditions but said that, even assuming the Tribunal had that power, it would not be minded to extend the stay in the manner sought by the applicant.
The Tribunal made an order in the following terms:
Dr Fidge’s application for the stay granted on 8 October 2021 to be extended so as to require the Board to remove the entry relating to Dr Fidge in the Register of practitioners is refused.
The applicant applied to the Trial Division for leave to appeal from this order under s 148 of the VCAT Act, ultimately on a single identified question of law:
Did the [Tribunal] misconstrue the operation of section 50(3) of the [VCAT Act] in deciding that the unconditional stay order granted on the 8th of October 2021 was required to be extended for the [Board] to remove the conditions listed in the [Register] that arise from the stayed decision in order to compel the Board to remove the conditions until the matter is determined?
At the conclusion of argument, the judge granted leave to appeal and dismissed the appeal. The judge, addressing counsel for the Board, said:
If it’s of any assistance to you, my inclination at the moment, unless you want to talk me out of it, is to grant leave to appeal and dismiss the appeal on the basis that [the Tribunal] assumed in favour of Dr Fidge all of the necessary powers, and yet decided on the merits that any stay that was in place ought not to extend to require the state of the [Register] to be altered. And that if there was any error of law, which I don’t need to decide, it was an immaterial error. That’s my present inclination.
Counsel did not seek to further address the judge, and his Honour made orders in accordance with his remarks. The applicant was ordered to pay the respondent’s costs of the application.
After the decision of the judge, the matter proceeded in the Tribunal to completion. The applicant was successful in having the Conditions overturned and they were removed from the Register. A caution was substituted.
Proposed grounds of appeal
In making his application for leave to appeal, the applicant puts forward the following proposed grounds of appeal:
1. The Supreme Court did not determine the question appealed.
2. The Supreme Court incorrectly reached a conclusion and made a decision before undertaking the necessary task of statutory construction and interpretation of s 50 of the VCAT Act. The question appealed was required to be decided in order to consider the appeal and then to uphold or dismiss the appeal and to fulfil the supervisory role of the Court.
3. The Supreme Court acted outside its jurisdiction by conducting a merits review of the question appealed, instead of deciding the question of law on appeal. The question of law was left unresolved in this matter and for all future matters where any applicant, not just healthcare practitioners, has a stay ordered by the Tribunal.
4. The Supreme Court vitiatingly read down s 50 of the VCAT Act without any basis. The Court read into s 50 of the VCAT Act provisions, meaning and interpretations which do not exist, by reading down the provisions of s 50 in a way which is irrational and which is not supported by s 50 or other provisions of the VCAT Act.
5.The Supreme Court’s interpretation of the Tribunal’s Stay Order was irrational and vitiating. The Court read into the Tribunal’s Stay Order exemptions which did not exist, by determining that the Stay Order did not have any specific meaning.
6. The Supreme Court was biased against the applicant. This was a vitiating error of law on the face of the record which is apparent in the transcript of proceedings. The hearing was irrational and ignored the law, legislation and precedents which were presented by the applicant. When the Court did quote law, or statute or precedent it was applied in reverse of their actual meaning and differently when applying them to the applicant or the respondent. Section 50 of the VCAT Act was interpreted differently at different stages of the proceedings according to whichever interpretation favoured the respondent.
A statement of the issues
In order to frame this application for leave to appeal, it is convenient to sketch the competing claims:
(a)on 19 August 2021, the Board imposed the Conditions on the applicant’s registration and noted the Conditions on the Register;
(b)the applicant appealed the sanction to the Tribunal and sought a stay of the Decision. On 8 October 2021, the Tribunal granted a stay (the October Order);
(c)the applicant contends that the stay required the Board to remove the Conditions pending the hearing and determination of his appeal. The Board said that it was not required to remove the Conditions, that the Tribunal did not have the power to direct their removal and that its annotation referring to the stay complied with the Tribunal’s order; and
(d)the Tribunal took the view that the stay order did not require removal of the Conditions, treated the applicant as having applied to extend the stay so as to require removal and refused the application.
In this context, if granted leave to appeal the applicant’s primary argument would centre around the scope of the original stay order (rather than whether the Tribunal should have ‘extended’ the order). The Board contends that the primary position of the applicant concerns the enforcement of the stay and that the Tribunal had no jurisdiction or power to enforce its own order.
Principles on leave
Leave to appeal is sought under s 14A of the Supreme Court Act 1986. Section 14C of the Supreme CourtAct provides, ‘The Court of Appeal may grant an application for leave to appeal under section 14A only if it is satisfied that the appeal has a real prospect of success.’
In Kennedy v Shire of Campaspe, this Court said with respect to s 14C:
Attention must be focussed on the words ‘real prospect of success’ used by the statute. Bearing that in mind, those words should be construed consistently with this Court’s interpretation of s 63 of the Civil Procedure Act. That is, the Court may only grant leave where the appeal has a ‘real’ as opposed to a ‘fanciful’ chance of success. This also accords with the interpretation given to the same words in the UK Civil Procedure Rules relating to appeals.[2]
[2][2015] VSCA 47, [12] (Whelan and Ferguson JJA).
In Molonglo Group (Australia) Pty Ltd v Cahill, this Court said:
Even if this Court is satisfied that an appeal has a real prospect of success, it may nevertheless refuse to grant leave in the exercise of its residual discretion, such as when no substantial injustice will be done if the decision at first instance stands, or the order sought to be appealed against is one of practice and procedure. The question of leave may sometimes be approached by considering, first, whether discretionary considerations exist which justify a refusal of leave, regardless of an applicant’s prospects of success. Where discretionary considerations exist but by themselves are insufficient to justify a refusal of leave, refusal may nevertheless be warranted where those discretionary considerations arise in the context of an appeal that has low, albeit real, prospects of success.[3]
[3][2018] VSCA 147, [96] (Maxwell ACJ, Whelan and Kyrou JJA) (citations omitted); see also Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, [111]–[113] (Kyrou and McLeish JJA); Commissioner of the Australian Federal Police v Opal Storm Pty Ltd [2018] VSCA 301, [25]–[27] (Priest, Ashley and Weinberg JJA) (‘Opal Storm’).
Submissions on utility
The applicant submits that there is utility in this Court providing guidance about the operation of s 50 of the VCAT Act, including clarifying the case of Schlieter v Dental Board of Australia.[4] The applicant submits the Board relied on this authority to refuse to remove the Conditions on the Register but instead to annotate the Register by stating that the Conditions had been stayed by the Tribunal. The applicant claims this is the Board’s established practice and is inconsistent with s 50 of the VCAT Act and the stay order granted by the Tribunal in this case, which the applicant says required the Board to remove the Conditions pending the determination of his appeal in the Tribunal.
[4][2015] TASHPT 2.
The Board submits there is no utility in an appeal because the original decision to impose the Conditions has been substituted by a different decision, with the result that there is no operative decision at the time of the hearing of the application. Further, the Conditions are no longer referred to in any way on the Register, either as operative conditions or the historical fact of conditions having been previously imposed. The Board submits that any utility in an appeal would be limited to the costs order made by the judge against the applicant.
Consideration
An appeal is brought from orders, not reasons, and the purpose of an appeal is the correction of error. Where error is identified, the usual course will be for the appellate court to make the order that should have been made. On occasion, an appellate court may remit the matter so that the primary decision maker can determine the matter afresh.
The proceeding before the primary judge was an appeal under s 148 of the VCAT Act from an interlocutory decision of VCAT. Although the decision of the judge was a final order, granting leave to appeal but dismissing the appeal, it is important to acknowledge that the underlying subject matter of the proceeding remains an interlocutory order in the form of a stay that has now been discharged on completion of the VCAT proceeding. Whether leave to appeal should be given in respect of an interlocutory decision will often depend on the ongoing significance of the interlocutory decision and where the interests of justice lie. The interests of justice will rarely, if ever, be served by a court making an order that will have no practical effect on the rights, liabilities and duties of the parties. That proposition holds true for interim, interlocutory and final orders.
The purpose of a stay is to preserve the subject matter pending the hearing and determination of the proceeding. It is not an end in itself and is not designed to determine the rights of the parties. For that reason a stay, like an interlocutory injunction, is generally granted without a determination of rights but on the basis of a sufficiently arguable case to justify an interlocutory order, and to avoid injustice to a party that cannot be remedied by final orders in the proceeding.
Consistent with that purpose, in this case, a stay order was made under s 50 of the VCAT Act preventing the sanction that was imposed on the applicant from continuing to operate. Because the Conditions have now been set aside by reason of the final orders made by the Tribunal, there is no occasion to either confirm, vary or revoke the stay order that was made.
As noted, the applicant submits that there is utility in this Court granting leave to appeal in order to determine the extent of the power in s 50 of the VCAT Act. We do not accept that submission.
First, we do not regard it as appropriate to grant leave merely for the purpose of enabling this Court to make generalised statements about the operation of s 50 of the VCAT Act. Such a course would be akin to giving an advisory opinion.
Second, it is not clear that the ambit of the s 50 power would fall for decision. As the primary judge noted, the Tribunal assumed that s 50 gave it the power to order the Board to remove the Conditions from the Register but decided, in the exercise of that assumed power, that it would not make such an order in any event. It does not matter whether this is treated as the extension of the original stay in the October Order, or as clarifying the meaning and effect of the original stay.
Granting leave to appeal would require this Court to construe an order that, on any view, is no longer in effect or necessary given the final disposition of the proceeding. It would be only once the order was construed that the issue of power could even potentially arise. And, if the original order did not have the effect contended for, the issue of power would not need to be determined because in its second decision the Tribunal assumed the power but declined to exercise it in favour of the applicant.
It may be accepted that the costs order imposed by the judge remains. In our view, it is not appropriate to grant leave and determine the appeal merely for the purpose of determining whether the costs order should remain or be set aside.[5] There is no utility in hearing an appeal about a matter which has become moot, even though success in the appeal would open the door to argument as to the costs of the hearing below.
[5]Opal Storm [2018] VSCA 301, [69]–[75] (Priest, Ashley and Weinberg JJA).
In our opinion, it is not in the interests of justice for the Court to grant leave to consider an interlocutory order that has ceased to have any practical significance and in respect of which the proposed legal questions as to power may not even arise.
For these reasons we refused leave to appeal.
On the pronouncement of orders refusing leave to appeal, the Board sought an order for costs of the present application for leave to appeal. In doing so it relied on a letter dated 27 October 2022 in which the Board invited the applicant to discontinue his application with no order as to costs because it contended that the appeal no longer had utility. If the applicant discontinued the application for leave to appeal, the Board also offered not to pursue the costs order that was made in its favour by the judge. The applicant refused the offer.
Ordinarily, no order for costs would be made when the subject matter of a proposed appeal becomes moot after an application for leave to appeal has been commenced. But the position may be different where, after the appeal becomes moot, one party makes a reasonable offer to compromise the proceeding and the other rejects that offer.
In our view, the offer in this case was a reasonable one. The Board’s offer not to pursue the costs order that it had obtained at first instance meant that the offer amounted to more than an invitation to capitulate. The applicant chose to press on and seek leave to appeal the stay decision which was no longer operative. In taking that course, it is appropriate that the applicant bear some of the costs of the application. The Board’s offer was open to be accepted until 3 November 2022. In our view, the applicant should pay the Board’s costs of the application for leave to appeal incurred after 3 November 2022. An order to that effect will be made.
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