Fletcher v Australian Health Practitioner Regulation Agency - [2023] SASCA 36

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
FLETCHER v AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY
[2023] SASCA 36
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Lovell)
3 April 2023
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - OTHER MATTERS - COSTS
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
The applicant is a registered psychologist who seeks leave to appeal against a decision of the South Australian Civil and Administrative Tribunal (“the Tribunal”) upholding a decision to impose “immediate action" conditions on his registration under s 156 of the Health Practitioner Regulation National Law.
After the decision was made, conditions were imposed by the Board under s 167 of the Health Practitioner Regulation National Law which had the effect of revoking and overtaking the immediate action conditions.
The applicant also sought leave to appeal against an order that he pay the Board’s costs. An extension of time was required.
The Court held (refusing the applications for leave to appeal and an extension of time):
1.The applicant failed to identify any reason to doubt the decisions of the Tribunal sufficient to warrant their reconsideration on appeal.
2.The appeal did not raise any issue of principle or general importance and critically, the applicant did not demonstrate why the judgment of the Tribunal worked substantial injustice where the immediate action conditions no longer operated.
3.Leave will not usually be granted to challenge a decision so as to furnish an opportunity to address costs ordered following that decision.

Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) s 6, sch 2, ss 157, 167, 178, referred to.
Cheema v Medical Board of Australia [2020] SACAT 40; Fletcher v Psychology Board of Australia (South Australian Civil and Administrative Tribunal, President Hughes, 7 October 2022); Fletcher v Psychology Board of Australia [2022] SACAT 81; GKZ v Department (No 3) [2022] SACAT 76; Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168; Khoo v Bartholomaeus [2020] SASCFC 122; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; Northern Territory v Sangare (2019) 265 CLR 164; Oglesby v Nursing & Midwifery Board of Australia [2014] QCAT 701; WD v Medical Board of Australia [2013] QCAT 614, considered.

FLETCHER v AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY
[2023] SASCA 36
Civil – Livesey P and Lovell JA
THE COURT:
Introduction

Mr Fletcher is a registered psychologist who seeks leave to appeal against a judgment of the South Australian Civil and Administrative Tribunal (the Tribunal) dated 26 July 2022.[1] The Tribunal comprised the President and two members. He also seeks leave to appeal against an order for costs dated 7 October 2022.[2]
[1] Fletcher v Psychology Board of Australia [2022] SACAT 81 (President Hughes, Ms Davis and Ms Gursansky).
[2] Fletcher v Psychology Board of Australia (South Australian Civil and Administrative Tribunal, President Hughes, 7 October 2022).
Mr Fletcher requires an extension of time within which to seek leave to appeal.
The Tribunal’s decision affirmed the decision of Psychology Board of Australia (the Board) to impose “immediate action” conditions on Mr Fletcher’s registration under s 156 of the Health Practitioner Regulation National Law (the National Law).[3]
[3] Comprising the Second Schedule to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (the National Law Act). The Tribunal is the nominated “responsible tribunal” for South Australia under s 6 of the National Law Act.
By the costs order Mr Fletcher was required to pay the Board’s costs.
After the Tribunal’s decision, on 4 November 2022 the Board imposed conditions on Mr Fletcher’s registration under s 167 of the National Law.[4] Those conditions had the effect of revoking and overtaking the immediate action conditions.[5]
[4] The power to impose conditions is conferred on the Board under s 178 of the National Law.
[5] The conditions were set out in a letter dated 18 November 2022 from AHPRA to Mr Fletcher, and recorded on Mr Fletcher’s current registration details.
For the reasons that follow, as there is neither utility nor merit in Mr Fletcher’s appeal, the applications for permission to appeal and an extension of time are refused.
Background facts
It is not necessary to address the background facts in any detail. They were reviewed in detail and with care in the reasons of the Tribunal. Essentially, Mr Fletcher disputed the conduct of the Department for Child Protection in removing the children of one of his clients. The Department had concluded that his client’s care of her children was compromised by illicit substance abuse, witnessing acts of domestic violence, and her lack of emotional regulation.
The Department claimed that, rather than respond to its questions with a report about the treatment he was providing, Mr Fletcher accused the Department of child abuse. It said that it was told by his client and another that Mr Fletcher was angry with the Department for having removed his own child. Questions about aspects of his practise as a psychologist more generally were raised. Mr Fletcher made it clear today that he disputes all of these matters.
On 16 September 2021 AHPRA provided a “show cause letter” to Mr Fletcher, telling him that the Board proposed taking immediate action to impose conditions on his registration because it had a reasonable belief that his conduct posed a serious risk and it was necessary to do so to protect public health or safety. Mr Fletcher responded, maintaining that the removal of his client’s children had been an act of abuse.
The appeal to the Tribunal
The Board implemented the immediate action conditions. Mr Fletcher sought a review by the Tribunal. Mr Fletcher challenged the immediate action conditions before the Tribunal.
The Tribunal had the benefit of an expert psychology report from Ms Rayment which was critical of Mr Fletcher’s conduct as a psychologist in various respects, as well as assessments conducted under s 169 of the National Law that did not suggest that Mr Fletcher had any psychiatric or psychological condition.
The Board’s decision was reviewable under ss 199 and 202 of the National Law and the review to the Tribunal was governed by ss 34 and 37 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act).[6] The question for the Tribunal, standing in the shoes of the Board, was what the correct or preferable immediate action was in the circumstances.[7]
[6] By reason of s 6A(1) of the National Law Act.
[7] Cheema v Medical Board of Australia [2020] SACAT 40, [9]-[13]; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 34(4).
The Tribunal affirmed the Board’s decision, finding that there was a basis for the reasonable belief that Mr Fletcher posed a serious risk, adopting the analysis of Judge Horneman-Wren in Oglesby v Nursing & Midwifery Board of Australia.[8] The President later determined that costs were governed by s 201 of the National Law Act,[9] and not by s 57 of the SACAT Act.[10] Her Honour ordered that Mr Fletcher pay the Board’s costs.
[8] Oglesby v Nursing & Midwifery Board of Australia [2014] QCAT 701, [20] (Judge Horneman-Wren). See also WD v Medical Board of Australia [2013] QCAT 614, [8] (Judge Horneman-Wren); Cheema v Medical Board of Australia [2020] SACAT 40, [43].
[9] Northern Territory v Sangare (2019) 265 CLR 164, [24]-[25]; Cheema v Medical Board of Australia (No 2) [2020] SACAT 82, [4] (Senior Member Stevens).
[10] GKZ v Department (No 3) [2022] SACAT 76, [6] (President Hughes).
The application for permission to appeal
Following the Tribunal’s decision dated 26 July and the costs order dated 7 October 2022, on 23 January 2023 Mr Fletcher commenced this appeal.[11]
[11] Mr Fletcher said during the hearing that he attempted to file a notice of appeal during October 2022. That notice is not available to the Court. Email correspondence between Mr Fletcher and the Registry indicates that there may have been an attempt by Mr Fletcher to file a notice of appeal as early as December 2022, however, that notice of appeal was rejected by the Registry for various reasons including non-compliance with the Uniform Civil Rules 2020 (SA).
By s 71(3) of the SACAT Act the appeal should have been instituted within one month, and so an order for an extension of time is required from the Supreme Court.
In addition, by s 71(2) of the SACAT Act, Mr Fletcher requires leave to appeal.[12] When determining whether leave to appeal should be granted, this Court acts in the interests of justice.[13] There is a particular reluctance to grant leave where the impugned orders do not affect the substantive rights of the parties.[14]
[12] See also r 213.5 of the Uniform Civil Rules 2020 (SA).
[13] See Khoo v Bartholomaeus [2020] SASCFC 122, [10] (Kelly J, with whom Livesey and Bleby JJ agreed).
[14] See McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [21]-[22] (Livesey P and Bleby JA), citing Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168, [14] (Bleby J).
Mr Fletcher is not legally represented. Today his submissions, whilst articulate, were directed to why his views remain correct. He asserts that any contrary view, such as the opinion of Ms Rayment, is wrong and unsupported by evidence if not also biased.
Mr Fletcher’s proposed grounds of appeal are difficult to understand. To the extent that they are understandable, they are without legal merit. Mr Fletcher invokes human rights and rails against the decision-making of the Board, and the National Law generally, concerning his conduct as a psychologist. He identifies no reason to doubt the decisions of the Tribunal sufficient to warrant their reconsideration on appeal. Mr Fletcher raises no issue of principle or general importance and critically, he does not demonstrate why the judgment of the Tribunal concerning immediate action works substantial injustice.
This last point bears emphasis. The immediate action decision-making by the Board, which was effectively upheld by the Tribunal, has been replaced and overtaken by education and audit conditions that are subject to an eight-month review period. Whether the immediate action may potentially have adverse professional or reputational consequences has not been shown to work any substantial injustice. For example, it will always remain open to Mr Fletcher to object to or otherwise explain those immediate action conditions in other courts or tribunals.
It follows that there is no utility in the proposed appeal concerning previous immediate action conditions which are no longer operating.
Even if there were some merit in the proposed appeal, it could serve no purpose other than as a possible means of overturning the costs order. It is well-recognised that leave will not usually be granted to challenge a decision so as to furnish an opportunity to address costs ordered following that decision.
There is, in any event, no reason to question the Tribunal’s costs order. Today Mr Fletcher submitted that he was not given an opportunity to be heard on costs. That submission must be rejected. He anticipated the costs issue and addressed it in writing and orally before the President. Mr Fletcher was today unable to identify any further submission he would have made had the President given him an adjournment.
Though a costs claim has been made, it has not been adjudicated and Mr Fletcher may yet challenge the quantum of costs claimed.
Conclusion
Leave to appeal must be refused. It follows that there is no utility in the application for an extension of time and it too must be refused.
Subject to hearing from the parties, Mr Fletcher must pay costs.