MEDICAL BOARD OF AUSTRALIA and WILL

[2024] WASAT 47

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010

CITATION:   MEDICAL BOARD OF AUSTRALIA and WILL [2024] WASAT 47

MEMBER:   PRESIDENT PRITCHARD

HEARD:   14 MAY 2024

DELIVERED          :   14 MAY 2024

FILE NO/S:   VR 7 of 2023

BETWEEN:   MEDICAL BOARD OF AUSTRALIA

Applicant

AND

ROBERT KEITH WILL

Respondent

Catchwords:

Vocational regulation – Medical practitioner – Section 59(10) of the State Administrative Tribunal Act 2004 – Discretion of Tribunal President to refer questions of law to the Supreme Court – Whether questions of law should be referred to Supreme Court

Legislation:

Health Insurance Act 1973 (Cth), s 106ZPQ, s 106ZR, s 106ZR(1)
State Administrative Tribunal Act2004 (WA), s 32(2)(a), s 59, s 59(10), s 59(10)(b)

Result:

Referral of questions of law to the Supreme Court for determination

Category:    B

Representation:

Counsel:

Applicant	:	Mr E M Heenan SC
Respondent	:	Mr M L Williams
Commonwealth of Australia	:	Ms Z Maud SC

Solicitors:

Applicant	:	Minter Ellison
Respondent	:	Unsworth Legal
Commonwealth of Australia	:	Australian Government Solicitor

Cases referred to in decision(s):

BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 2) [2012] WASC 321

Burns v Corbett (2018) 265 CLR 304

Citta Hobart Pty Ltd and Cawthorn [2022] HCA 16, (2022) CLR 216

MCC Mining (Western Australia) Pty Ltd and Thiess Pty Ltd [2010] WASAT 140

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. The Medical Board of Australia (Board) has applied under s 59(10)(b) of the State Administrative Tribunal Act2004 (WA) (SAT Act) for an order that I refer certain questions of law to the Supreme Court for determination. Dr Will wants the questions of law determined, but does not take a position on whether s 59(10)(b) applies, or whether I should refer the questions to the Court. The Commonwealth, to which I granted leave to make submissions on this question, submitted that the questions of law should be referred to the Supreme Court.

2. For the reasons which follow, I am persuaded that the appropriate course is to refer the questions of law to the Supreme Court for determination.

Background

1. In these proceedings, the Board has referred allegations of misconduct against Dr Will to the Tribunal for disciplinary action pursuant to the provisions of the National Law contained in the Schedule to the Health Practitioner Regulation National Law(WA) Act 2010 (WA) (proceeding).

2. As part of the evidence by which it seeks to prove its case, the Board wishes to rely on certain documents (Documents) which were obtained, or produced, in the course of an investigation into Dr Will's conduct under the Health Insurance Act 1973 (Cth) (HI Act). Dr Will says that the Documents are not admissible by virtue of the provisions of s 106ZPQ of the HI Act in the proceedings in the Tribunal, or are not admissible to the extent that the Documents might tend to incriminate him. (I note that although the rules of evidence do not apply in the Tribunal under the SAT Act,[1] nevertheless they are a useful guide, and the question arises as to whether, despite that being the position, there would be a bar on the use of the documents.) More significantly, the Board is concerned that it would be unlawful for it or Dr Will to disclose to the Tribunal, or for the Tribunal to admit into evidence, the various Documents, by virtue of s 106ZR(1) of the HI Act.

   [1] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 32(2)(a).

3. The parties have, after considerable thought and effort, produced a set of agreed facts (Agreed Facts) they say are necessary to permit the resolution of five questions of law (Questions of Law) concerning the operation of ss 106ZPQ and 106ZR of the HI Act.

4. Section 59(10)(b) of the SAT Act confers a discretion on the President to refer a question of law to the Supreme Court for decision by the Court, as long as it is not a question of mixed fact and law. I am satisfied that the Questions of Law posed are questions of law, and not mixed questions of law and fact. I am also satisfied that the Agreed Facts[2] are necessary to answer the Questions of Law that have been agreed between the parties. That disposes of the potential problem of asking the Supreme Court to resolve a hypothetical case.  I am satisfied that the Questions of Law actually arise on the Agreed Facts.

   [2] The Agreed Facts and Questions of Law are set out in the document 'Proposed questions of law and agreed facts for referral to Supreme Court for decision' filed 3 May 2024.

5. In those circumstances, I am satisfied that this is a case in which it is open to me to exercise my discretion under s 59(10) of the SAT Act as to whether to refer the questions of law to the Supreme Court.

6. I should observe that the parties have not proposed that I refer the questions of law for determination by the Court of Appeal. Even had they done so, I would not have been attracted to that course.

Operation of s 59(10) of the SAT Act

1. In the exercise of the discretion under s 59(10)(b), it is appropriate for the President to take into account all relevant circumstances. These will include the Tribunal's objectives under s 9 of the SAT Act, including questions of costs and expedience.[3]

   [3] See, for example, the decision of Chaney J in MCC Mining (Western Australia) Pty Ltd and Thiess Pty Ltd [2010] WASAT 140 at [30] – [40].

2. The referral of questions of law for determination by the Supreme Court is rarely done by the Tribunal.  That reflects the general position that the separate determination of preliminary questions divorced from the balance of issues in dispute in a proceeding is a course fraught with difficulty.[4]

   [4] See the discussion in BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 2) [2012] WASC 321 at [26] – [27].

3. Furthermore, s 59 as a whole acknowledges the Tribunal itself is able to decide questions of law. It does so every day.

4. I am also mindful of the fact that the Tribunal should not readily burden the Supreme Court by referring questions of law for determination without good reason, when the Tribunal can resolve such questions itself.

5. In the present case, however, I am persuaded that it is appropriate to refer the Questions of Law to the Supreme Court for determination, for the following reasons.

6. First, and most significantly, the answers to the Questions of Law are necessary for the parties, and for the Board in particular, to know what evidence might be led at the hearing in the Tribunal, without the commission of a criminal offence.  It is important for the parties to have a clear and binding determination in relation to that question.

7. Secondly, I am also persuaded that questions of costs and expediency warrant the referral of the Questions of Law to the Supreme Court. Depending on the outcome of the determination of the Questions of Law, there may not be a need for a full hearing and determination of the proceeding in the Tribunal. If the Supreme Court determines that the Documents cannot be used in the proceeding, then the Board may have to consider whether it continues with the proceeding in the Tribunal at all. I accept the submission of the Board that in these rather unusual circumstances, the referral would be consistent with the Tribunal's objectives under the SAT Act.[5]

   [5] These objectives include achieving the resolution of questions, complaints or disputes fairly and according to the substantial merits, speedily and with as little formality and technicality as is practicable and with minimisation of the cost to the parties.

8. Thirdly, I consider it appropriate to refer the Questions of Law for determination by the Supreme Court because of their broader relevance or significance to parties other than those involved in the proceeding. The circumstances in which the Documents have come into the possession of the Board do not appear to me, at least on their face, to be unusual. The Questions of Law that are raised by this case seem to me to be questions that may well arise in other cases. I am told that there is currently no superior court authority that answers the Questions of Law that are now posed for determination. I accept that it would be beneficial, both in this State, and elsewhere where the National Law applies, for there to be a determination of the Questions of Law by a court which can make a binding determination which will operate as persuasive authority when considered elsewhere.

9. The Commonwealth submits that I should refer the Questions of Law for determination by the Supreme Court because for the Tribunal to determine those questions would involve an exercise of federal judicial power. Were the Commonwealth to be granted a right of intervention in the matter to argue the point (as it would wish to do) there may also be an issue that that would bring the proceeding within federal jurisdiction.[6] 

   [6] Cf Commonwealth of Australia Constitution Act, s 75(iii).

10. I express no view in relation to whether the fact that the Questions of Law have been raised, or as to the manner of their determination, would mean that the proceeding is presently within federal jurisdiction, or may be within federal jurisdiction.[7] It suffices to say that I am not persuaded that at present, the proceeding is within federal jurisdiction simply by virtue of there being raised an issue of the application of a Commonwealth statute relevant to the admissibility of evidence in the Tribunal. That being the case, I do not see any impediment to me making an order exercising the Tribunal's jurisdiction under s 59(10) of the SAT Act.

    [7] Cf Citta Hobart Pty Ltd and Cawthorn [2022] HCA 16, (2022) CLR 216. Burns v Corbett (2018) 265 CLR 304 at [55] (Kiefel CJ, Bell and Keane JJ) at [68] – [69] (Gageler J).

11. Concerns about the jurisdictional questions which surround the determination of the Questions of Law in this case serve to support the view I have otherwise formed that the prudent course in this case is to have the Questions of Law determined by the Supreme Court, which undoubtedly has jurisdiction to hear and determine them. The implications of the Supreme Court's decision for the jurisdiction of the Tribunal, and the proceeding generally, are matters for submission on another occasion.

Order

I will make an order in the following terms:

1.Pursuant to s 59(10)(b) of the State Administrative Tribunal Act2004 (WA) the proposed questions of law, together with the agreed facts relevant to their determination (set out in the document dated 3 May 2024), are referred to the Supreme Court for decision.

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

PM

Associate to the Honourable Justice Pritchard

15 MAY 2024