Hobart v Medical Board of Australia

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0036

MARK HOBART	Applicant
v
MEDICAL BOARD OF AUSTRALIA	Respondent

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JUDGES:	NIALL and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 November 2023
DATE OF JUDGMENT:	10 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 270
JUDGMENT APPEALED FROM:	[2022] VSC 698 (Richards J)

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HEALTH LAW – Medical practitioners – Immediate action – Suspension of registration – Whether Medical Board obliged to refer matter to Tribunal immediately – Whether question moot – Whether judge found practitioner did not engage in professional misconduct – Leave to appeal refused.

Health Practitioner Regulation National Law Act 2009 (Qld), Schedule, ss 5, 155, 156, 158, 160, 162, 167, 193.

Façade Treatment Engineer Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2015] VSCA 170; Kozanoglu v Pharmacy Board of Australia (2012) 36 VR 656; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

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Counsel
Applicant:		In person
Respondent:		Mr CJ Winneke KC and Mr GB Ayres
Solicitors
Applicant:
Respondent:	MinterEllison

NIALL JA
WHELAN JA:

Background

Dr Mark Hobart is a general practitioner registered under the Health Practitioner Regulation National Law (the ‘National Law’).[1]
[1]Health Practitioner Regulation National Law Act 2009 (Qld), Schedule, in force as a law of Victoria pursuant to s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the ‘National Law’).
The National Law regulates health practitioners, including medical practitioners, and students in health professions. It is administered by National Health Practitioner Boards established for each health profession. The National Board for the medical profession is the Medical Board of Australia (the ‘Board’). The Australian Health Practitioner Regulation Agency (‘AHPRA’), established under s 23 of the National Law, provides administrative and other assistance to National Boards.
Between 14 December 2020 and 26 October 2021, AHPRA received eight notifications in relation to Dr Hobart. These notifications raised issues relating to COVID-19, and, in particular, vaccination exemptions, and the dissemination of information about COVID-19.
At various points between 11 June 2021 and 4 November 2021, the Board decided to commence an investigation into each of these notifications.
On 10 November 2021, AHPRA notified solicitors acting for Dr Hobart that the Board proposed to take immediate action by suspending Dr Hobart’s registration, pursuant to s 156(1) of the National Law. The letter outlined the reasons why the Board proposed to take that immediate action, and the information it had considered. As required by s 157(1) of the National Law, Dr Hobart was invited to make a submission to the Board, which he did through his solicitors on 17 November 2021.
On 18 November 2021, the Victorian Immediate Action Committee (the ‘VIAC’) of the Board decided to take immediate action by suspending Dr Hobart’s registration. The Board has power to delegate its functions to a committee pursuant to s 37 of the National Law. Save in the context of an issue raised by the Court in the course of the hearing, to which subsequent reference will be made, no issue was raised in the proceeding concerning this delegation.
The VIAC decision was recorded in a document dated 18 November 2021 (the ‘decision record’).
Dr Hobart’s solicitors were notified accordingly. That notification stated that the decision was founded on the Board’s reasonable belief that ‘because of Dr Hobart’s conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety and taking immediate action in respect of Dr Hobart’s registration is otherwise in the public interest’.
The Board’s notification referred to the fact that Dr Hobart could appeal the Board’s decision to suspend his registration to the Victorian Civil and Administrative Tribunal (‘VCAT’). Dr Hobart did not appeal the decision to VCAT.
On 21 December 2021, Dr Hobart issued proceedings seeking judicial review of the Board’s decision. That application was heard in the Trial Division of this Court on 12 July 2022, and was dismissed on 16 November 2022. The trial judge published reasons for the dismissal.[2]
[2]Hobart v Medical Board of Australia [2022] VSC 698, [25] (‘Reasons’).
Dr Hobart now seeks leave to appeal. The matter proceeded on the basis that, if leave were granted, the appeal would be heard and determined forthwith without further argument.[3] Both Dr Hobart and the Board sought to rely on additional material on the application for leave. At the outset of the hearing each of the parties was given leave to rely upon that additional material.
[3]The President of the Court of Appeal had made a determination pursuant to s 11(1A) of the Supreme Court Act 1986.

National Law — relevant provisions

Part 8 of the National Law deals with the performance and conduct of registered health practitioners. Division 7 of pt 8 is headed ‘Immediate action’. It commences with s 155, which relevantly defines ‘immediate action’ as including:
(a) the suspension, or imposition of a condition on, the health practitioner’s … registration … .
Section 156 empowers the Board to take ‘immediate action’. It relevantly provides:
(1) A National Board may take immediate action in relation to a registered health practitioner … if—
(a) the National Board reasonably believes that—
(i) because of the registered health practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety; or
…
(e) the National Board reasonably believes the action is otherwise in the public interest.
Section 157 provides for a ‘show cause process’ that must be followed by a National Board that is proposing to take immediate action by suspending or imposing a condition on registration. It relevantly provides:
(1) If a National Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a registered health practitioner … under section 156, the Board must—
(a) give the practitioner … notice of the proposed immediate action; and
(b) invite the practitioner … to make a submission to the Board, within the time stated in the notice about the proposed immediate action.
…
(3) The National Board must have regard to any submissions made by the registered health practitioner … in accordance with this section in deciding whether to take immediate action in relation to the practitioner ... .
Section 158 sets out steps a National Board must take after deciding to take ‘immediate action’. It relevantly provides:
(1) Immediately after deciding to take immediate action in relation to a registered health practitioner … , the National Board must—
(a) give written notice of the Board’s decision to the health practitioner … ; and
(b) take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner … .
(2) The notice must state—
(a) the immediate action the National Board has decided to take; and
(b) the reasons for the decision to take the immediate action; and
(c) the further action the National Board proposes to take under this Part in relation to the health practitioner … ; and
(d) that the registered health practitioner … may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner’s … registration; and
(e) how an application for appeal may be made and the period within which the application must be made.
The period of ‘immediate action’ taken by a National Board is governed by s 159. It relevantly provides:
(1) The decision by the National Board to take immediate action in relation to the registered health practitioner … takes effect on—
(a) the day the notice is given to the practitioner … ; or
(b) the later day stated in the notice.
(2) The decision continues to have effect until the earlier of the following occurs—
(a) the decision is set aside on appeal;
(b) for the suspension of, or imposition of conditions on, the registered health practitioner’s … registration, the suspension is revoked, or the conditions are removed, by the National Board … .
Part 8 div 8 provides for investigations. Section 160(1) provides that a National Board may investigate a registered health practitioner if it decides it is necessary or appropriate for one of several reasons. These include, relevantly, that the Board has received a notification about the practitioner, or believes that the way the practitioner practises the profession is or may be unsatisfactory, or that the practitioner’s conduct is or may be unsatisfactory. Section 160(2) provides that if a National Board decides to investigate a registered health practitioner, it must direct an appropriate investigator to conduct the investigation.
Section 161 requires a National Board that decides to investigate a registered health practitioner, as soon as practicable after making the decision, to give the practitioner written notice about the investigation, including advice about the nature of the matter being investigated. The National Board must also give the practitioner written notice of the progress of the investigation, at not less than three monthly intervals.
Section 162 requires investigations to be conducted in a timely way:
The National Board must ensure an investigator it directs to conduct an investigation conducts the investigation as quickly as practicable, having regard to the nature of the matter to be investigated.
Section 166 provides that after completing an investigation, an investigator must give a written report about the investigation to the relevant National Board. The report must include the investigator’s findings about the investigation and recommendations about any action to be taken in relation to the practitioner.
After considering the investigator’s report, the National Board must make a decision. Section 167 relevantly provides:
After considering the investigator’s report, the National Board must decide—
(a) to take no further action in relation to the matter; or
(b) to do either or both of the following—
(i) take the action the Board considers necessary or appropriate under another Division;
(ii) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
Matters must in certain circumstances be referred to a responsible tribunal. In Victoria, VCAT is the responsible tribunal.[4] At the time the immediate action was taken, s 193 relevantly provided:
(1) A National Board must refer a matter about a registered health practitioner … to a responsible tribunal if—
(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason—
(i) the practitioner has behaved in a way that constitutes professional misconduct; …
[4]Health Practitioner Regulation National Law (Victoria) Act 2009 s 6.
The term ‘professional misconduct’ is defined in s 5 of the National Law as follows:

professional misconduct, of a registered health practitioner, includes—
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

The term ‘unprofessional conduct’ is defined as follows:
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers … .
After hearing a matter referred to it under s 193, the responsible tribunal may make one or more of the decisions and take one or more of the actions provided for in s 196. Section 196 relevantly provides:
(1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide—
(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b) one or more of the following—
(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii) the practitioner has behaved in a way that constitutes professional misconduct;
…
(2) If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following—
(a) caution or reprimand the practitioner;
(b) impose a condition on the practitioner’s registration …
(c) require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
(d) suspend the practitioner’s registration for a specified period;
(e) cancel the practitioner’s registration.
Division 13 of pt 8 deals with appeals. Section 199 identifies ‘appellable decisions’ that may be appealed to the responsible tribunal, in Victoria, VCAT. Relevantly, s 199(1)(h) provides for an appeal against a decision by a National Board to suspend a practitioner’s registration. After hearing an appeal, VCAT may confirm the decision, amend it, or substitute its own decision.[5]
[5]National Law s 202.

The judicial review application

In his originating motion seeking judicial review, Dr Hobart made the following contentions under the heading of ‘the grounds relied upon’. He contended that the decision by the Board ‘when taken as a whole would constitute a finding of professional misconduct’. He contended that this was ultra vires and ‘within the outer limit of the VCAT’s jurisdictional powers’. He contended that the reasonable belief of the Board amounted to a finding of professional misconduct which was ‘beyond its jurisdictional powers’. He contended that the reasonable belief asserted in the decision could only be reached on the existence of ‘facts which are sufficient to induce that state of mind in a reasonable person’. He asserted that the ‘error in law lies in the failure of the Board to refer the matter for adjudication to the responsible tribunal pursuant to 193 of the National Law’. He complained that personal records of patients had been seized and remained unreturned.
Thus, apart from the complaint as to the records, the substance of the grounds set out in the originating motion was that the Board had made a finding of professional misconduct which was outside its jurisdiction and that it ought to have referred the matter immediately to VCAT.
Before the trial judge, Dr Hobart relied on these contentions,[6] and also contended that the suspension of his registration had continued for so long that it could no longer be regarded as an interim measure for the protection of public health and safety. He argued that it had in effect become an indefinite suspension and that the matters upon which it was based should be referred immediately to VCAT for hearing and decision. Before the trial judge, no distinction was made between the Board and the VIAC.[7]
[6]Reasons, [4], [30]–[32], [40]–[43].
[7]Reasons, [27].
The judge rejected Dr Hobart’s contention that the Board had made a finding of professional misconduct, and had acted in a manner beyond its jurisdiction. The judge held that the matters set out in the decision record constituted reasonable grounds for the belief that Dr Hobart posed a serious risk to persons and it was necessary to take immediate action to protect public health or safety, and for the belief that suspension of Dr Hobart’s registration was otherwise in the public interest. These beliefs, the judge held, empowered the Board to take immediate action, under ss 156(1)(a) and 156(1)(e) respectively, by suspending Dr Hobart’s registration.[8]
[8]Reasons, [33]–[34], [36], [37]–[39].
The judge did not accept that the reasonable beliefs held by the Board, as expressed in the decision record, amounted to findings that Dr Hobart had engaged in professional misconduct. The judge stated that the decision record ‘contains no such finding’. She observed that while some of the Board’s reasons were expressed ‘with firmness’, the Board was ‘clearly conscious of the interim nature of the suspension’.[9]
[9]Reasons, [35].
The judge rejected Dr Hobart’s contention that the Board had been required to immediately refer the matter to VCAT. The Board had, immediately after deciding to take immediate action, taken the further action under pt 8 of the National Law that it considered to be appropriate — as it was obliged to do under s 158(1)(b) of the National Law. Under pt 8, ‘further action’ included investigation (div 8). The judge said that the Board had advised Dr Hobart of the investigations already occurring and that the further action it was taking was ‘the investigation of the matters that were the basis for the immediate action’. The scheme of pt 8, the judge held, did not require that ‘in every case, the matters that prompted a National Board to take immediate action against a practitioner must be referred directly and without delay to the responsible tribunal’. The judge accepted evidence that investigation of the matters was a ‘time consuming’ exercise, and noted that Dr Hobart had been provided with regular updates.[10]
[10]Reasons, [44]–[51].
The judge rejected the complaint as to patient records.[11]
[11]Reasons, [52]–[54].
For these reasons, Dr Hobart’s judicial review application was dismissed.

Application for leave to appeal and related applications

By an application for leave to appeal filed on 30 March 2023, Dr Hobart advanced five proposed grounds of appeal.[12] By his amended written case dated 21 June 2023, those grounds were refined into two grounds, which might be summarised as:
(1)The judge failed to order the Board to immediately refer the matter to VCAT.
(2)Because the judge found that Dr Hobart’s conduct did not amount to professional misconduct or unprofessional conduct, the preconditions for the Board’s exercise of its suspension power under s 156 of the National Law were not present.
[12]For convenience, each proposed ground of appeal will be referred to as a ‘ground’ from here on.
On 31 July 2023, the Board filed an application for leave to adduce further evidence, namely an affidavit of Mr Andrew Cole,[13] affirmed 31 July 2023. The affidavit sets out in some detail the progress of the investigation since the hearing in the Trial Division. More importantly, Mr Cole deposes that on 25 May 2023 the Board met to consider the findings of the investigation. The Board decided to take action under s 167(b)(i) and refer the matter to the responsible tribunal under s 193(1), ‘having formed a reasonable belief that Dr Hobart has behaved in a way that constitutes professional misconduct’. On 26 May 2023, Dr Hobart’s legal representatives were notified of the Board’s decision to refer the matter to VCAT.
[13]Mr Cole is the Operations Manager – Notifications (Investigations) at AHPRA.
Dr Hobart also filed additional material upon which he was given leave to rely. Relevantly, that material includes affidavits from other medical practitioners whose registration has been suspended by the Board and whose matters are yet to be dealt with by VCAT notwithstanding a significant passage of time.

On 29 August 2023, Dr Hobart filed an application seeking:
an injunction preventing the legal operation of the decision made pursuant [to] s 193 of the Health Practitioner Regulation National Law Act 2009 (Vic) by the Medical Board of Australia and the remedy sought in the originating motion being referral to the VCAT which both have the same legal effect, in the matter of S EAPCI 2023 0036 until all rights of appeal are exhausted which includes an appeal and final decision by the High Court of Australia in order to preserve my legal right of judicial review against a decision by the Medical Board of Australia made pursuant to s 156 of the Act.

Dr Hobart’s submissions

Under ground 1 (as refined) of his application for leave to appeal, Dr Hobart’s written case readvanced the contention that the National Law had required the Board to refer the matter to VCAT, because the ‘definition of professional misconduct’ had been ‘satisfie[d]’. He submitted that the National Law provides for a ‘hierarchy’ of bodies whose jurisdiction and powers are limited by the nature of the conduct alleged, VCAT being at the apex of that ‘hierarchy’, the Board at the bottom.
Both in his written case and in his oral submission Dr Hobart contended that where immediate action under s 156 involved suspension, it necessarily followed that the matter must be immediately referred to VCAT. In oral submissions, he accepted that the National Law did not contain any provision to that effect. He submitted that a requirement to refer when the immediate action is suspension was a necessary constraint upon the power to take immediate action under s 156. He submitted this was because of the very serious consequences that suspension would inevitably have, particularly where there was substantial delay, as had occurred in his case and in the cases of the other doctors who had sworn or affirmed affidavits upon which he was given leave to rely as additional material.
Dr Hobart relied upon Minister for Immigration and Citizenship v Li.[14] He submitted that s 193 of the National Law works together with s 156 to ‘tightly constrain’ the Board’s power to suspend.
[14](2013) 249 CLR 332; [2013] HCA 18.
Dr Hobart also relied upon Kozanoglu v Pharmacy Board of Australia (‘Kozanoglu’).[15] There, this Court (Weinberg and Harper JJA and Hargrave AJA) observed that because the Board when taking immediate action is often acting on limited information, there exist two safeguards against the potentially serious consequences of taking immediate action which later turns out to be in error. The first is the importance of a timely referral to a panel or tribunal. The second is that the safety of the public should be secured with as little damage to the practitioner as is consistent with its maintenance. Dr Hobart submitted that these safeguards had not been properly observed.[16]
[15](2012) 36 VR 656; [2012] VSCA 295 (‘Kozanoglu’).
[16]Kozanoglu (2012) 36 VR 656, 677–8 [126]–[127]; [2012] VSCA 295.
In his application for leave to appeal, Dr Hobart sought, amongst other relief, a declaration ‘that the suspension action taken under s 156 of the Act must be accompanied by the immediate referral to the VCAT’.
Ground 2 (as refined) fastened upon a sentence in the judge’s reasons which read: ‘I do not accept that the reasonable beliefs held by the Board on 18 November 2021 amounted to findings that Dr Hobart had engaged in professional misconduct’.[17] It followed, Dr Hobart submitted in his written case, that the preconditions for the exercise of the Board’s power to suspend under s 156 were not present, and the suspension should be lifted. In oral submissions, Dr Hobart abandoned reliance on this ground.

Ground 1 — Failure to refer immediately to VCAT

[17]Reasons, [35].

The Board has now decided to refer Dr Hobart’s matter to VCAT. It has not yet done so because of Dr Hobart’s injunction application. The Board contends Dr Hobart’s application is now moot. In the ordinary course, this Court will not determine a point which is moot.[18] Nor will it determine a point which has, since the filing of an application for leave to appeal, become moot.[19]
[18]Secretary, Department of Human Services v Magistrates’ Court at Melbourne (2002) 6 VR 140, 147 [19] (Phillips and Batt JJA and O’Bryan AJA); [2002] VSCA 171.
[19]See, eg, Kotzmann v Adult Parole Board of Victoria [2011] VSCA 339, [1]–[5] (Ashley, Mandie and Hansen JJA).
There has been a very significant period of time between the taking of immediate action in November 2021 and the decision to refer to VCAT in May 2023. If the decision to refer ought to have been made in November 2021, as Dr Hobart contends, in our opinion, Dr Hobart may still be entitled to a declaration to the effect that the decision to refer ought to have been made some 18 months earlier than it was. In the circumstances, we do not consider Dr Hobart’s application to be moot.
In substance, Dr Hobart’s contention before us was that whenever the power in s 156 was exercised by way of a suspension, there necessarily followed an obligation to refer the matter to VCAT, this being an inherent constraint on the power to suspend under s 156. This is not quite the way that the matter was put to the trial judge. It seems that the contention she addressed was that in the particular circumstances here a ‘finding’ of professional misconduct had been made at the time the decision to take immediate action was taken, and that this ‘finding’ was beyond the Board’s jurisdiction as only VCAT could make such a finding.
Section 156 relevantly empowers the Board to take immediate action if the Board reasonably believes that the registered practitioner’s ‘conduct … poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety’; or if the Board ‘reasonably believes the action is otherwise in the public interest’. Section 193 mandates referral to a responsible tribunal if the Board ‘reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes professional misconduct’.
The belief which empowers the Board to act under s 156 is not the same as the belief which requires referral under s 193.
The contention before the trial judge that an actual finding of professional misconduct had been made was rejected by the trial judge. Dr Hobart did not put the matter in that way to us. He submitted that there was a necessary constraint upon the power to suspend under s 156 because of the serious consequences that that course necessarily involved. The constraint was, he submitted, a requirement to immediately refer the matter to VCAT which is the only body with jurisdiction to determine whether professional misconduct had occurred.
Dr Hobart’s contention that there exists what amounts to an implied constraint upon the exercise of immediate action under s 156 by way of suspension, being a requirement for immediate referral to VCAT, cannot be accepted.
First and foremost, the National Law does not provide for any such constraint.
Further, the provisions of the National Law are inconsistent with the existence of any such constraint.
By s 158, the National Law requires the Board to take further action under pt 8 immediately after deciding to take immediate action. Amongst the actions which may be taken under pt 8 is investigation under div 8. Indeed, s 158 itself expressly gives as an example of the required further action ‘investigating the practitioner’.
Section 160 enables the Board to gather further information, which, by reason of s 162, must be done ‘as quickly as practicable’.
After an investigation is completed, s 167 provides that a Board may take the action it considers necessary or appropriate under another division. Amongst those other divisions, is div 12, which contains s 193.
These provisions make it clear that the Board can take immediate action and then take further action by way of investigation. These provisions are inconsistent with Dr Hobart’s contention that there is an implied constraint on the power to take immediate action by way of suspension under s 156 requiring immediate referral to VCAT.
Dr Hobart’s submission that the Board’s power to suspend would be unchecked unless it were to make a referral to VCAT must also be rejected.
Dr Hobart relied upon passages in Minister for Immigration and Citizenship v Li, where French CJ, and Hayne, Kiefel and Bell JJ, explained that decisions must be reasonable, and constrained by law.[20]
[20](2013) 249 CLR 332, 348–9 [23]–[24] (French CJ), 363 [65] (Hayne, Kiefel and Bell JJ); [2013] HCA 18.
We, of course, fully accept what was said in Minister for Immigration and Citizenship v Li, but that does not lead to a conclusion that a Board must, upon exercising its suspension power, make an immediate referral to VCAT, when the National Law does not impose that requirement and contains provisions inconsistent with it.
Dr Hobart’s reliance upon Kozanoglu was misplaced for the reasons given by the trial judge. The judge said:
It would be problematic for a National Board to take immediate action under s 156 and then do nothing more. As Murphy JA said in Bernadt, ‘the legislature did not envisage that course (of doing nothing) as routinely or typically being open after taking immediate action’. That is what occurred in Kozanoglu, and what prompted the observations made by the Court of Appeal[.] In this case, if the Board had suspended Dr Hobart’s registration under s 156, without taking any other action in relation to the matters that prompted its decision, he might have had a basis for relief.[21]
[21]Reasons, [48] (citations omitted).
In Kozanoglu, instead of commencing an investigation under div 8 (or taking any of the other actions available to it under divs 9–12), the Board elected to await the completion of a police investigation, which ‘could well have been extremely protracted’.[22]
[22](2012) 36 VR 656, 677–8 [127] (Weinberg and Harper JJA and Hargrave AJA); [2012] VSCA 295.
That is not what occurred here. The Board commenced an investigation into each of the eight notifications, notified Dr Hobart, and provided him with regular updates. That investigation has now concluded, and the matter has been referred to VCAT.
It follows that ground 1 must fail.

Ground 2 — Preconditions for the immediate action power

Dr Hobart’s argument rested upon the false premise that the judge ‘found that my conduct did not amount to professional misconduct or unprofessional conduct’. The judge found that the Board’s decision to take immediate action under s 156 did not involve findings by the Board that Dr Hobart had engaged in professional misconduct.[23] Dr Hobart was correct to abandon this ground.

Application for injunction

[23]Reasons, [35].

Dr Hobart contended that the injunction he sought was necessary ‘to preserve my right of judicial review’. Dr Hobart accepted that if the issue of whether the declaration concerning the operation of s 156 was not treated as moot, and was addressed, then that would meet the concern which had prompted his application for injunction.
Dr Hobart has, until the referral decision was made, sought judicial review with the principal object of compelling the Board to refer the matter to VCAT.
At the hearing we expressed our conclusion that there was no valid basis to enjoin the referral to VCAT. It is the outcome Dr Hobart had contended for up until the referral decision was made. We accordingly dismissed the application for an injunction at the conclusion of the hearing.

Other matters

In the course of the hearing, we raised with the parties the possibility that the decision record might be read as containing, or evidencing the existence of, the opinion provided for in s 193. We referred in particular to paragraphs 9 and 12 of the decision record. This is not the contention addressed by the trial judge to the effect that a ‘finding’ of professional misconduct had been made, but rather, the possibility that the decision record reveals that the Board had held the reasonable belief that professional misconduct had occurred in the terms provided for by s 193 when the immediate action decision was made. Dr Hobart did not embrace this suggestion. He submitted that the correct analysis was that there was a constraint on the s 156 power. Counsel on behalf of the Board submitted that if that matter were to be addressed it would be necessary to lead further evidence. Counsel advised in that regard that the delegation to the VIAC had not included the power to refer under s 193.
It emerged clearly in the course of the hearing that Dr Hobart’s greatest concern is what he considers to be the unconscionable delay which has occurred while he and other doctors in a similar position have been suspended by exercise of the immediate action power. We gave anxious consideration to the possibility of suggesting a reformulation of the proposed grounds so as to assert that in Dr Hobart’s case the Board had already formed the s 193 opinion when the s 156 decision was made. But adopting such a course would have involved, at the least, giving the Board the opportunity to respond.
Given that the Board has now made the decision to refer, that the dismissal of the injunction application means that that referral should take place without any further delay, and that suggesting a reformulation of the grounds would result in further delay and expense, we determined not to pursue the matter further.

Conclusion

On the proposed grounds, leave to appeal will be refused.

[2023] VSCA 270

10 November 2023