MEDICAL BOARD OF AUSTRALIA and SAUNDERS

[2023] WASAT 8

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

CITATION:   MEDICAL BOARD OF AUSTRALIA and SAUNDERS [2023] WASAT 8

MEMBER:   PRESIDENT PRITCHARD

HEARD:   31 JANUARY 2023

DELIVERED          :   31 JANUARY 2023

PUBLISHED           :   21 FEBRUARY 2023

FILE NO/S:   VR 49 of 2022

BETWEEN:   MEDICAL BOARD OF AUSTRALIA

Applicant

AND

BENJAMIN SAUNDERS

Respondent

Catchwords:

Decision to require member of applicant Board to attend mediation – Considerations relevant to decision whether to require attendance by Board member – Attendance in person or by video‑link

Legislation:

Nil

Category:    B

Representation:

Counsel:

Applicant	:	A Jonklaas
Respondent	:	E Panetta

Solicitors:

Applicant	:	Piper Alderman
Respondent	:	Panetta McGrath Lawyers

Case referred to in decision:

Medical Board v Woo [2022] WASAT 71

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered extemporaneously on 31 January 2023 and have been edited from the transcript to correct matters of grammar and infelicitous expression.)

1. I have formed the view that this is a case where a member of the Applicant, that is, a member of the Medical Board of Australia (Board) should be required to attend the mediation in this proceeding, either in person or by video‑link.  These are my reasons for reaching that view.

2. The Tribunal has an obligation to try to resolve matters as expeditiously and cheaply as it possibly can. That is clearly in the interests of all parties.  The present proceedings have been underway for some time. An earlier mediation was not successful, in circumstances where the Respondent himself did not attend, for reasons on which I need not elaborate.  The parties are agreed that a further mediation should be undertaken.

3. The dispute between the parties which has been the subject of submissions today is whether a member of the Board should be required to attend the mediation or, alternatively, whether the Board should be represented simply by its lawyers. (The Respondent will attend the mediation).  As has been observed in previous cases,[1] the Tribunal does not, as a general rule, make orders to the effect that members of boards who are parties to vocational proceedings in the Tribunal must attend every mediation.

   [1] Medical Board v Woo [2022] WASAT 71.

4. Typically, the approach that I take to that question is that I am guided by the experience of the parties' legal representatives, most of whom (in this jurisdiction) are experienced in dealing with vocational and disciplinary matters. I also take into account the nature of the allegations made against a practitioner, in order to form a view as to whether it is likely to assist the prospects of settlement if a member of the Board itself actually attends the meditation whether in person or by video‑link.

5. The experience of the Tribunal's mediators (who are extremely experienced in dealing with mediations this kind) has been that in vocational and disciplinary matters, it is of assistance in many cases to have a Board member present.  Sometimes that is because it will assist the practitioner to hear the concerns of the Board about their conduct and to derive some insight into what might be deficiencies in their conduct which need to be remedied if further practice is going to be possible.  On other occasions, it may be very important for a member of the Board itself to hear directly from the practitioner as to their response to the allegations, or their intentions going forward (relevant to questions of remorse and insight) which are all highly relevant to the Board's concerns about matters such as whether there is a continuing need to protect the public, to ensure the safety of the public or to maintain the confidence of the public in members of the profession.

6. The Tribunal is cognisant of the fact that Board members are busy people, but that is not unusual. Many members of statutory or corporate parties in the Tribunal, whether large or small, have other competing demands on their time.  In the case of proceedings involving the Board, the Tribunal will take into account the availability of the Board member, as well as of the Board's lawyers, to attend a mediation. The Tribunal does not expect the Board member to be placed in a situation where they have to put an obligation to attend a mediation before their clinical obligations on any given day.  The Tribunal works around the availability of Board members and the parties' lawyers to find a mutually convenient date for a mediation. I do not accept that a Board member cannot be expected to attend if given notice of the time for the mediation.

7. I have taken into account the limited information that the parties are able to give me about the nature of this particular matter.  I have not yet seen the documents the parties propose to file in relation to the amended application and response. I am therefore at a disadvantage in knowing how the amended case and response thereto might bear on the prospects of mediation going forward. But having heard what the parties have said and, in particular, having heard what the Respondent's solicitor, Mr Panetta, has said – and his opinion as an experienced practitioner is that there is likely to be some assistance from a Board member being present at the mediation on this occasion – my view is that, having regard to the Tribunal's obligation to try to resolve matters as quickly and cheaply as possible and without formality, the best way to give all parties a chance of a successful outcome at this mediation is to require a member of the Board to be present at the mediation, either by attending in person or by video‑link.

8. The listing of the mediation can take into account the availability of the Board member who is nominated to attend the mediation.  On that basis, then, I propose to make orders in terms of the Respondent's minute of proposed orders, save that paragraph 4 will read that a member of the applicant Medical Board of Australia, and the Respondent, be required to attend the mediation, and in the case of the Board member, that member may attend either in person or by video‑link.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

TH

Associate to the President (SAT)

21 FEBRUARY 2023