Maroulis v Psychology Board of Australia - [2020] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Permission to Appeal in Private)
MAROULIS v PSYCHOLOGY BOARD OF AUSTRALIA
[2020] SASC 51
Judgment of Judge Dart a Master of the Supreme Court
9 April 2020
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT - SCOPE AND EFFECT OF APPEAL
Appeal from SACAT - disciplinary proceeding under the Health Practitioner Regulation National Law (South Australia) Act 2010 - practitioner pleaded guilty to misconduct - SACAT imposed penalty - practitioner appeals in respect of penalty - ordinarily an appeal from SACAT to the Supreme Court requires leave - Health Practitioner Regulation National Law (South Australia) Act 2010 varies the usual position - leave not required - appeal is as of right.
Held: Leave to appeal not required in respect of the subject appeal.
Health Practitioner Regulation National Law (South Australia) Act 2010 Schedule 2 s 196; South Australian Civil and Administrative Tribunal Act 2013 s 6B, s 71; Supreme Court Civil Rules 2006 r 292(2A), referred to.
Jackson v Lepp Investments Pty Ltd [2016] SASC 62, considered.

MAROULIS v PSYCHOLOGY BOARD OF AUSTRALIA
[2020] SASC 51
JUDGE DART:

The appellant has instituted an appeal from a decision of the South Australian Civil and Administrative Tribunal (“SACAT”). The proceeding in SACAT was a disciplinary action pursuant to the Health Practitioner Regulation National Law (South Australia) Act 2010 (“the Act”). The appellant was registered as a psychologist. The decision of the Tribunal was to reprimand the appellant, cancel his registration and disqualify him from applying for re‑registration for a period of three years.
The appeal is to a single Judge of this Court.[1] An appeal from SACAT ordinarily requires leave from this Court.[2] The Supreme Court Civil Rules provide that an application for leave to appeal to a single Justice is to be heard by a Master.[3]
[1]    South Australian Civil and Administrative Tribunal Act 2013 s 71(1)(b).
[2]    South Australian Civil and Administrative Tribunal Act 2013 s 71(2).
[3]    Rule 292(2A).
The purpose of only permitting an appeal to this Court with leave is to ensure that only appropriate matters proceed in the Supreme Court. SACAT is a specialist tribunal and, in most circumstances, is to be the final arbiter of a dispute. The principles to be applied on an application for leave were set out by Parker J in Jackson v Lepp Investments Pty Ltd.[4]His Honour said:[5]
In deciding whether to grant permission to appeal from SACAT to this Court I consider that the ordinary principles applied when the Court decides whether or not to grant permission for a civil appeal should be followed. The over-riding principle is always the interests of justice.[6] The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration.[7] A failure of the first-instance decision maker to give adequate reasons will require the grant of permission.[8]
Because SACAT is a specialist tribunal with particular expertise in determining tenancy disputes, this Court must give substantial weight to its findings. For this proposition I rely on the decision of this Court in Legal Practitioners Conduct Board v Colton.[9]
[4] [2016] SASC 62.
[5]    Jackson v Lepp Investments Pty Ltd [2016] SASC 62 at [19]-[20].
[6]    Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61 at [3].
[7]    Mick Lucas Pty Ltd v Licensing Commissioner (1987) 45 SASR 312 at 313-314.
[8]    Curnow v Police (2008) 100 SASR 290 at [11].
[9] (2012) 113 SASR 467 at [35].
Consideration
SACAT has only relatively recently acquired the jurisdiction to hear disciplinary complaints in relation to health practitioners. The complainant in this matter is the Psychology Board of Australia (“the Board”). It is one of a number of national boards established by the Act. The appellant included an application for leave to appeal in the Notice of Appeal. The file was provided to me to consider that application. Upon a consideration of the legislative framework, it appears that the appeal is as of right:[10]
[10] South Australian Civil and Administrative Tribunal Act 2013.
71—Appeals
(1)Subject to this section and to any provision of a relevant Act as to the review of, or appeal against, a decision of the Tribunal, an appeal lies—
(a)in the case of a decision of the Tribunal—
(i)constituted of a Presidential member of the Tribunal; or
(ii)constituted of 2 or 3 members including a Presidential member,
to the Full Court of the Supreme Court; or
(b)in any other case—to the Supreme Court constituted of a single Judge.
(1a)The Rules of the Supreme Court may provide that a matter that would otherwise go to the Full Court under subsection (1) will instead go to a single Judge, and vice versa.
(2)An appeal under this section is only by leave of the Supreme Court (but this principle may be displaced or modified by the provisions of a relevant Act).
(2a)Without limiting subsection (2), an appeal against a decision of the Tribunal in the exercise of its original jurisdiction, or in a case where the Tribunal is constituted by a registrar or other member of the staff of the Tribunal, may not be instituted under this section unless or until a review of the decision has been conducted under section 70.
(2b)However—
(a)the operation of subsection (2a) may be—
(i)displaced by the Rules of the Supreme Court in specified classes of cases; or
(ii)displaced by regulations under this Act; or
(iii)displaced or modified by the provisions of a relevant Act; and
(b)subsection (2a) does not apply if the President of the Tribunal determines that a decision (or class of decision) should not be subject to a requirement for review under section 70.
It can be seen that s 71(2) anticipates that other legislation may displace the requirement for leave. The Act provides that SACAT is the responsible tribunal for the purposes of the national law.
The mechanics of the Act are found in Health Practitioner Regulation National Law (South Australia) Act 2010 – Schedule 2. The schedule is the national law that applies in each state. It provides that a board must refer a matter to the responsible tribunal if it believes a health practitioner may be guilty of misconduct.
The following section of the Schedule was relevant to the SACAT hearing under appeal:
196—Decision by responsible tribunal about registered health practitioner
(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;
(iv)the practitioner has an impairment;
(v)the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner's health profession information or a document that was false or misleading in a material particular.
(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, including, for example—
(i)a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv)a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(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.
(3)If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.
(4)If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to—
(a)disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b)prohibit the person, either permanently or for a stated period, from—
(i)providing any health service or a specified health service; or
(ii)using any title or a specified title.
SACAT dealt with the matter under s 196(1) of Schedule 2 and imposed a penalty consistent with that permitted by the section. The appeal is only against the penalty imposed. The appellant pleaded guilty to the misconduct.
The Act modified the way reviews and appeals are conducted. Ordinarily, a SACAT matter will be the subject of an internal review before appeal rights arise. The Act provides as follows:
6B—No internal review by Tribunal
(1)A decision of the Tribunal under section 196 or 197 of the Health Practitioner Regulation National Law (South Australia) may not be the subject of an application for an internal review under section 70 of the South Australian Civil and Administrative Tribunal Act 2013.
(2)Section 71(2), (2a) and (3a) of the South Australian Civil and Administrative Tribunal Act 2013 do not apply in relation to an appeal against a decision of the Tribunal under section 196 or 197 of the Health Practitioner Regulation National Law (South Australia).
The effect of s 6B of the Act is twofold. It prevents SACAT conducting an internal review. It then provides that the requirement for leave (s 71(2)) does not apply to an appeal from a decision made under s 196. The appeal provided for by s 71(1) of the SACAT Act becomes an appeal as of right. That is the position here. No leave is required by the appellant.
I should mention that the drafting of s 6B is confusing. The Act only has 83 sections. The reference to ss 196 and 197 is a reference to the sections found in the second schedule. It is the schedule that is the national law, not the Act of the same name.