MEDICAL BOARD OF AUSTRALIA and COSTLEY
[2011] WASAT 171
•12 OCTOBER 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL PRACTITIONERS ACT 2008 (WA)
CITATION: MEDICAL BOARD OF AUSTRALIA and COSTLEY [2011] WASAT 171
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
HEARD: 12 OCTOBER 2011
DELIVERED : 12 OCTOBER 2011
FILE NO/S: VR 66 of 2011
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
TERENCE COSTLEY
Respondent
Catchwords:
Practice and procedure - Abuse of process - Abuse of process by reason of delay - Professional disciplinary proceeding Medical practitioner - Sexual misconduct - substantially same allegation made and considered in 1993
Legislation:
Medical Act 1894 (WA)
State Administrative Tribunal Act 2004 (WA), s 47
Result:
Application to strike out allegations of misconduct upheld
Category: B
Representation:
Counsel:
Applicant: Ms A Bishop
Respondent: Mr J Ley
Solicitors:
Applicant: DLA Piper Australia
Respondent: Panetta McGrath Lawyers
Case(s) referred to in decision(s):
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Jago v District Court (NSW) (1989) 168 CLR 23
Walton v Gardiner (1993) 177 CLR 378
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Medical Board of Australia brought proceedings against Dr Terence Costley, a medical practitioner, based on allegations of professional misconduct. One part of these allegations related to a relationship between the practitioner and a patient that took place over 18 years ago.
The practitioner applied for the relevant allegations to be struck out from the proceeding due to the significant time that has passed and because the allegations were investigated in 1993 by the Medical Board of Western Australia and considered not to require further action.
After considering the application, the Tribunal gave an oral decision in which it granted the practitioner's application to strike out certain allegations made by the Medical Board of Australia. The Tribunal determined that principles relating to abuse of process by reason of delay that apply in a court also apply in the context of professional disciplinary proceedings in the Tribunal. The Tribunal balanced the public interest considerations of protecting the public from incompetence and professional misconduct with the requirements of fairness to the practitioner, and found that it would be unjust and unfair to retain the relevant allegations within the proceeding. The Tribunal found that raising the allegations constituted an abuse of process because of the substantial length of time that has passed since the events in issue and because the practitioner was informed over 18 years ago that substantially the same allegations would not involve disciplinary consequences.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.
Introduction
This proceeding relates to allegations of professional misconduct brought by the applicant, the Medical Board of Australia (Medical Board), against Dr Terence Costley, a medical practitioner (practitioner).
The practitioner has applied to the Tribunal for an order pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for the part of the proceeding involving certain allegations made against him to be struck out on the ground that to maintain that part of the proceeding would involve an abuse of process.
Section 47 of the SAT Act states as follows:
(1)This section applies if the Tribunal believes that a proceeding
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal’s powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
Background
The proceedings before the Tribunal were commenced on 19 April 2011. The Medical Board alleges that the practitioner, amongst other things, engaged in sexual misconduct, or alternatively acted improperly in the course of his practice as a medical practitioner, or alternatively engaged in conduct in a professional respect that fell short of the standard that a member of the public is entitled to expect of a medical practitioner, in that he encouraged and/or permitted and was involved in a relationship of a sexual, intimate and personal nature with a patient (J) during a period when the practitioner was J's medical practitioner and J was vulnerable.
The allegations involving the alleged relationship with J are set out at paras 17 19 of the application to the Tribunal and are maintained at paras 20 22 of the Medical Board's statement of issues, facts and contentions filed on 30 September 2011.
The practitioner has given evidence that the relationship with J, which is the subject of the allegations in question, took place over 18 years ago and that substantially the same allegation that is now sought to be maintained against him was the subject of a complaint by J's former husband to the Medical Board of Western Australia in early 1993. That complaint was addressed by the Medical Board of Western Australia in a letter to the practitioner dated 14 May 1993 in which that Board referred to the practitioner's response to the board's letter, its consideration of the response at a recent meeting of the Board, and then stated as follows:
I have been directed to inform you that the complaint lodged against you by [J's former husband] has been investigated by the Board, which considers on the evidence available, no breach of the Medical Act has occurred.
It is not disputed by the Medical Board in relation to the practitioner's application to strike out the relevant allegations that the allegations made to the Medical Board of Western Australia in early 1993 were substantially the same allegations as are the subject of the part of the proceedings that is sought to be struck out. While the Medical Board does not consent to the application to strike out, it does not oppose the application.
Authorities in relation to abuse of process by reason of delay
In Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326, Allanson J held as follows at [55] and [56]:
SAT is not a court but an administrative tribunal, even when constituted by a judicial member: [Citations omitted]. Care must be exercised in the application, even by analogy, of authorities relating to courts.
SAT has, however, been given an express power to dismiss for abuse of process. Further, it has jurisdiction to finally decide the questions raised on a review. While an appeal lies to the Supreme Court, it is by leave and confined to an appeal on a question of law. An estoppel may arise from the decision of a tribunal given power to finally determine the questions raised before it: [Citation omitted]. In my opinion, the principles relating to abuse of process in a court of record, including an abuse of process by relitigation of a matter that has been finally determined, are properly applied to SAT.
Similarly, the principles relating to abuse of process by reason of delay that apply in a court of record properly apply in the context of s 47(1)(c) of the SAT Act.
The principles in relation to abuse of process by reason of delay specifically in the context of professional disciplinary proceedings were considered and enunciated by the High Court of Australia in Walton v Gardiner (1993) 177 CLR 378 (Walton). In the joint decision of the majority comprising Mason CJ, Deane and Dawson JJ, the Court said the following at 392 393:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.
Their Honours referred at 392 396 to the decision of the High Court in relation to stay of proceedings in a criminal context in Jago v District Court (NSW) (1989) 168 CLR 23 (Jago). At 393 of the decision in Walton, the majority noted that at least three of the five members of the Court in Jago 'clearly rejected "the narrower view" that a court's power to protect itself from an abuse of process in criminal proceedings "is limited to traditional notions of abuse of process"'. At 394 in Walton, the majority referred to a passage from the decision of Deane J in Jago where Deane J said at 58 that:
The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one.
The majority in Walton also referred to the judgment of Gaudron J in Jago where her Honour stressed at 74 that the power of a court:
… to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.
At 395 396 of the decision in Walton, the majority considered the application of these principles in a criminal context in relation to professional disciplinary proceedings. Their Honours said the following:
In its application to the Tribunal the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective ie, protective of the public in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds. In particular, in a context where the disciplinary power of the Tribunal extends both to the making of an order permanently removing a medical practitioner from the Register with consequent loss of entitlement to practise and the imposition of a fine of up to $25,000, there is plainly an analogy between the concept of abuse of a court's process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings.
Finally, in the joint judgment in Walton, their Honours said the following at 395 396:
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.
Consideration of application to strike out part of proceeding
In my view, applying the weighing process and balancing relevant considerations in the manner endorsed by the High Court in Walton, the maintenance of the present proceedings in relation to the alleged relationship of the practitioner with J is an abuse of process in that it would be unjust and unfair to the practitioner for a the following reasons.
The practitioner gave evidence that, upon receiving the letter from the Medical Board of Western Australia dated 14 May 1993, he:
… understood that the Board had found that I had not misconducted myself in the manner alleged by [J's former husband] and that the Board would not be inquiring into my conduct under the Medical Act 1894 (WA). Accordingly, I made no further efforts to obtain the evidence I would have needed to defend [J's former husband's] complaint. That evidence would have been the testimony of [J], with whom I was then on good terms, and who had indicated that she was prepared to give evidence on my behalf at any inquiry held by the Board.
Having been informed by the Medical Board of Western Australia over 18 years ago that no breach of the Medical Act 1894 (WA) had occurred, it would be, in my view, grossly unfair for what appears to be essentially the same allegation to be the subject of a disciplinary proceeding against the practitioner. It was reasonable, in my view, for the practitioner to have assumed, and proceeded with his life on the basis, that the allegation, or a substantially similar allegation as that which was the subject of the complaint in early 1993, would not be the subject of further disciplinary proceedings.
Furthermore, by reason of the significant delay between 1993 and the present, the practitioner's ability to be able to properly and meaningfully defend what are serious charges of professional misconduct has been significantly compromised. Eighteen years ago, J was prepared to give evidence on behalf of the practitioner. Since then, the practitioner said in evidence there has been a souring of the relationship between the practitioner and J due to an acrimonious divorce between the practitioner and his wife, of whom J is a friend.
Furthermore, 18 years is a long time and it is entirely conceivable that memories of the events in issue would have faded on the part of other witnesses. Certainly, the practitioner gave evidence that his own recollection of events at the time of the alleged conduct 'has faded considerably'.
The fundamental purpose of professional disciplinary proceedings is the protection of the public. However, the Medical Board of Western Australia itself determined 18 years ago that in relation to the subject allegations or substantially similar allegations, it was not necessary to take action against the practitioner to protect the public in relation to the matter.
Furthermore, the fact that no disciplinary proceeding has been brought by the Medical Board of Western Australia or its successor for a very long period of time casts significant doubt on the need to take disciplinary proceedings for the protection of the public in relation to the allegations the subject of the application for strikeout.
Conclusion
In these circumstances, weighing the considerations, it is appropriate, in my view, to strike out the paragraphs of the application and of the statement of issues, facts and contentions that are the subject of this application. In my view, the proceeding in relation to those particular allegations ought not have been brought and, as it has now been brought, the appropriate consequence is for an order pursuant to s 47 of the SAT Act striking out those allegations as an abuse of process. For these reasons, I make the following order:
1.Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA), paragraphs 1.4.3, 17, 18 and 19 of Attachment B to the application and paragraphs 2.2.3, 20, 21 and 22 of the applicant's statement of issues, facts and contentions dated 30 September 2011 are struck out as an abuse of process.
2.By 26 October 2011, the applicant is to file and serve a substituted application and a substituted statement of issues, facts and contentions.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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