MEDICAL BOARD OF AUSTRALIA and WOO
[2022] WASAT 71
•22 AUGUST 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
CITATION: MEDICAL BOARD OF AUSTRALIA and WOO [2022] WASAT 71
MEMBER: DR R WILSON, SENIOR MEMBER
HEARD: 31 MAY 2022
DELIVERED : 22 AUGUST 2022
FILE NO/S: VR 10 of 2022
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
ALEXANDER CHI-YAN WOO
Respondent
Catchwords:
Reasons for decision to make order requiring attendance of member of the applicant Board at a part heard mediation
Legislation:
State Administrative Tribunal Act 2004 (WA), s 3(1), s 55, s 78
Category: B
Representation:
Counsel:
| Applicant | : | Mr T De Bes |
| Respondent | : | Mr S Vandongen |
Solicitors:
| Applicant | : | Australian Government Solicitor - Perth |
| Respondent | : | Minter Ellison |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
A mediation was held in this matter on 31 May 2022. I mediated it. At the conclusion of the session, the matter was adjourned part heard to a further mediation before me, on 22 September 2022. Other orders were made in preparation for that adjourned mediation. These included an order (order three) by which I required the attendance, at the adjourned mediation, of a member of the applicant Medical Board of Australia (Board), as well as the respondent Dr Woo. The Board opposed order three being made insofar as it applied to the Board.
On 21 June 2022, the Board requested written reasons for the Tribunal's decision to make order three.
Under s 78 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), a party may request written reasons for a decision of the Tribunal, whether or not a final decision, where the Tribunal has not reserved its decision and has not given its reasons for the decision in writing. A 'decision' of the Tribunal is defined in s 3(1) to include an order, direction, or determination of the Tribunal. A 'final decision' means a decision of the Tribunal that disposes of the matter raised in an application.[1]
[1] SAT Act, s 3(1).
Whilst not a final decision of the Tribunal, order three appears on a reading of these provisions alone, to be a decision attracting the requirement to give written reasons upon request.
General principles of confidentiality apply to a compulsory conference or mediation. Section 55 of the SAT Act creates some limited exceptions to its own prohibition against admissibility of evidence of anything said or done in the course of a compulsory conference or mediation at any later stage of the proceeding, including for reasons for directions and orders. However, it does not abrogate for all purposes the general rules of confidentiality that apply to compulsory conferences and mediations. Nor does it abrogate the broad principles otherwise applicable to the admissibility of evidence at any later stage of the proceeding.
In giving reasons for order three, I cannot and need not disclose what was said or done in the course of the mediation. I say only that I formed the view that the prospects of success of the further mediation would likely be assisted by attendance of a member of the Board.
As a general principle, the Tribunal does on occasion require the attendance of a member of a regulatory body if it considers this would be likely to facilitate compromise. The Tribunal acknowledges that Boards provide instructions to their legal representatives in preparation for a mediation, but those instructions are necessarily based on the Board’s understanding prior to mediation, of the likely position of the parties and the Board’s understanding of contextual considerations relevant to matters such as penalty, for example the context in which the alleged conduct occurred.
It is acknowledged that legal representatives may seek to convey developments throughout the course of a mediation to members of their client regulatory body who may not be attending the mediation personally. Sometimes the Tribunal forms the view that a matter may be of a kind where there will be a benefit in a member of the regulatory body hearing matters first-hand, and that this will either better enable the provision of updated instructions to solicitors or the seeking of those instructions at short notice from other Board members, if that proves necessary, in the course of the mediation. Sometimes the Tribunal forms the view that a direct personal exchange between the practitioner and one of his or her peers would enable one or both parties to understand the other’s perspective more clearly, leading to the increased prospect of reaching an agreed position.
The Tribunal is mindful of inconvenience to Board members of any invitation or requirement to attend but does not, as a general rule, make orders to that effect without forming the view that the benefit of attendance is warranted having regard to the prospects of settlement.
Returning to the present matter the order is not without precedent in the Tribunal. Its terms reflect orders which have been made in other cases.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
Dr R Wilson, SENIOR MEMBER
22 AUGUST 2022
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