ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :JUSTICE J C CURTHOYS (PRESIDENT)
Citation  :MEDICAL BOARD OF AUSTRALIA and WOOLLARD [2016] WASAT 26
File No  :VR 239 of 2014

Catchwords:

Appeal from State Administrative Tribunal in disciplinary proceedings - Appeal on a question of law only - Whether there was any evidence upon which to find or to infer that certain complaints against the respondent medical practitioner constituted an abuse of process - Whether open to infer unreasonable or undue delay in bringing the claims - Whether open to infer that respondent was prejudiced by the delay - Double jeopardy - Public interest

Professional regulation - Health profession - Discipline - Health Practitioner Regulation National Law - Fitness to practise - Cardiologist - Angioplasty

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA)
State Administrative Tribunal Act 2004 (WA), s 47, s 105

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr M D Cuerden SC & Ms J McKenzie
Respondent: Ms G Archer SC

Solicitors:

Appellant: MDS Legal
Respondent: Clayton Utz

Case(s) referred to in judgment(s):

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132
BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221
Commissioner for Consumer Protection v Carey [2014] WASCA 7
Edge Visionary Living Pty Ltd v Nairn [2016] WASCA 211
El Bayeh v The Queen [2011] VSCA 44; (2011) 31 VR 305
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334; (2015) 90 NSWLR 595
Gill v Walton (1991) 25 NSWLR 190
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Health Care Complaints Commission v Do [2014] NSWCA 307
Herron v McGregor (1986) 6 NSWLR 246
House v The King [1936] HCA 33; (1936) 55 CLR 499
Jago v District Court of New South Wales (1988) 12 NSWLR 558
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Medical Board of Australia and Woollard [2012] WASAT 209
Medical Board of Australia and Woollard [2013] WASAT 101
Medical Board of Australia v Woollard [2016] WASAT 26
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
New York Properties Pty Ltd v Federal Commissioner of Taxation (1985) 61 ALR 345
Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
R v Edwards [2009] HCA 20; (2009) 83 ALJR 717
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6
Smith v Bank of Western Australia Ltd [2010] WASCA 15
Subramaniam v The Queen [2004] HCA 51; (2004) 79 ALJR 116
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
TS v R [2014] NSWCCA 174
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Woollard v Medical Board of Australia (sitting as a performance and Professional Standards Panel) [2016] WASCA 151

NEWNES & MURPHY JJA: This is an appeal, for which leave is required, against the decision of the State Administrative Tribunal (Tribunal) in Medical Board of Australia and Woollard (primary decision).[1] By that decision, Curthoys J dismissed certain claims in proceedings brought by the appellant, Medical Board of Australia (Board), against the respondent, Dr Woollard, under the Health Practitioner Regulation National Law (WA) Act 2010 (National Law Act).[2] The proceedings concerned an incident where a patient (Patient B) had died as a result of cardiogenic shock on 16 December 2005 following an angioplasty procedure performed by Dr Woollard on 15 December 2005.[3] The Board alleged professional misconduct, unprofessional conduct or unsatisfactory professional performance on the part of Dr Woollard.
[1] Medical Board of Australia v Woollard [2016] WASAT 26.
[2] See s 193 ‑ s 196 of the Schedule to the National Law Act.
[3] Primary decision [2].
Dr Woollard contended that the proceedings should be dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) as an alleged abuse of process. Justice Curthoys did not dismiss the proceedings in their entirety, but dismissed certain elements of the Board's case against Dr Woollard, including an element found to be relevant to his fitness to practise.[4] The two elements which Curthoys J dismissed as an abuse of process are later described in these reasons as the 'False Representation Claim' and the 'Inadequate Training Claim'.
[4] Primary decision [229].
The Board appeals to this court against the Tribunal's dismissal of the relevant claims. An appeal lies only on a question of law: s 105(2) of the SAT Act. Leave is required: s 105(1) of the SAT Act.

Background

Between 2005 and 2009, Dr Woollard carried out a series of coronary angioplasty procedures that were subsequently investigated by the Board. These included procedures performed on:
(a) Patient B on 15 December 2005;
(b) Patient S on 30 August 2006;
(c)Patient C on 22 March 2007;
(d) Patient M on 12 September 2007;
(e)Patient W on 21 January 2009;
(f)Patient H on 14 May 2009; and
(g) Patient A (precise date unknown).[5]
[5] Primary decision [63]. The reference to '16 December 2016' at [63] of the primary decision appears to be an error.
A summary of the relevant history of the complaints, as appears from the Tribunal's reasons, is set out in the table below.

Incident	Inquest findings	Complaint made	Notification of action to Dr Woollard	Application filed in Tribunal	Hearing / agreement	Tribunal's orders
Patient B	15/12/05	31/07/08	22/05/12 (widow)	01/06/12	- 19/12/14 - amended 21/0715
Patient S	30/08/06	22/07/11	June 2012 (Tribunal hearing)	19/12/12
Patient C	22/03/07	Feb '09	22/02/12	21/05/13 (agreement)	12/06/13
Patient M	12/09/07	18/11/14 (Panel hearing)
Patient W	21/01/09	By Nov '14 (Panel)
Patient H	14/05/09	Feb '09	07/11/12	21/05/13 (agreement)	12/06/13
Patient A	?	02/11/12	March '14	29/08/14 (Panel hearing)

The complaint and investigation into the complaint in respect of Patient B

The judge made the following findings of primary fact of the events leading up to the commencement of the proceedings in the Tribunal on 19 December 2014.
Dr Woollard performed a procedure on Patient B on 15 December 2005 at the Mount Hospital in Perth. During that procedure, Dr Woollard attempted to position a guide wire across a lesion in Patient B's left anterior descending coronary artery and, in doing so, dissected that artery. Dr Alvarez, a cardiothoracic surgeon, had to perform emergency coronary surgery to repair the artery.[6]
[6] Primary decision [2].
On 16 December 2005, Patient B died as a result of cardiogenic shock.[7]
[7] Primary decision [2].
In 2008,[8] the State Coroner found that Patient B's death arose by way of accident. He was satisfied that Patient B was suffering from severe coronary artery disease requiring coronary angioplasty.[9]
[8] The Tribunal referred to 31 January 2008, but this appears to be a typographical error for 31 July 2008 (affidavit evidence GB 155).
[9] Primary decision [3].
On 22 May 2012, Patient B's widow filed a complaint with the Australian Health Practitioner Regulation Agency (Regulation Agency).[10] The Regulation Agency was established under s 23 of the National Law Act and is, relevantly and in effect, a delegate of the Board.[11]
[10] Primary decision [4].
[11] Primary decision [49] ‑ [57].
On 1 June 2012, the Board and/or the Regulation Agency wrote to Dr Woollard in relation to the notification of complaints in respect of Patients S, M, C and H, and the notification by the widow of Patient B, and gave notice of proposed immediate action under s 155 to s 157 of the National Law Act.[12]
[12] Primary decision [5], [76].
On 11 June 2012, Dr Woollard's solicitors responded on his behalf and noted that a number of the matters concerning Dr Woollard's patients were before the Tribunal.[13]
[13] Primary decision [79].
On 29 June 2012, the Regulation Agency wrote to Dr Woollard's solicitors requesting that Dr Woollard provide to its investigator any further submissions relating to the widow's complaint and any documents in relation to Patient B.[14]
[14] Primary decision [82].
On 3 July 2012, Dr Woollard's solicitors sent the Regulation Agency Dr Woollard's clinical notes in relation to Patient B.[15]
[15] Primary decision [83].
On 13 August 2012, the Regulation Agency sent a letter to Dr Hockings, who assisted Dr Woollard immediately after Patient B's coronary artery was dissected, seeking copies of all relevant documents and a summary of his involvement with Patient B during the procedure on 15 December 2005.[16]
[16] Primary decision [84].
On 15 August 2012, the Regulation Agency sent a letter to the Coroner's Court seeking a copy of the Coroner's report and findings in relation to Patient B, and copies of all correspondence between the Coroner's Court and the widow in relation to Patient B.[17]
[17] Primary decision [85].
On 30 August 2012, the Regulation Agency received a letter and documents from Dr Hockings in response to its letter on 13 August 2012.[18]
[18] Primary decision [86].
On 1 November 2012, the Regulation Agency's investigator sent notices to several potential witnesses, including Ms Knowles, Ms Collins and Dr Alvarez, requesting information in relation to Patient B.[19]
[19] Primary decision [88].
On 5 November 2012, the investigator spoke with Ms Knowles and received an email from Ms Collins.[20]
[20] Primary decision [90].
Between 23 November 2012 and 3 December 2012, the investigator received an email and a letter from Dr Alvarez.[21]
[21] Primary decision [92].
On 15 January 2013, the Board considered Patient B's case and decided to seek an opinion from Dr Clugston (a cardiologist) who had given evidence in the case of Patient S.[22]
[22] Primary decision [96], [114].
On 19 March 2013, Ms Bradshaw of the Regulation Agency[23] sent a letter to Dr Clugston, seeking an independent opinion from him as to Dr Woollard's treatment of Patient B.[24]
[23] GB 256.
[24] Primary decision [98].
On 6 May 2013, the investigator sent an email to Dr Clugston asking if he could let her know when he would be in a position to provide his report. Dr Clugston replied that day, advising the investigator that he would need copies of the discs pertaining to Patient B's procedure.[25]
[25] Primary decision [99].
On 9 May 2013, the investigator wrote to the Director of Clinical Services at the Mount Hospital asking for the discs requested by Dr Clugston.[26]
[26] Primary decision [100].
On 30 May 2013, the Regulation Agency sent a letter to Dr Clugston enclosing the requested discs.[27]
[27] Primary decision [102].
On 31 May 2013, the Regulation Agency sent a letter to Dr Woollard's solicitors, notifying them of the decision to refer Dr Woollard to a performance and professional standards panel (Panel).[28]
[28] Primary decision [103].
On 4 June 2013, Dr Woollard's solicitors responded to the letter sent on 31 May 2013, asking why the matter had been referred when Dr Woollard had agreed that he would no longer perform stenting procedures for a period of at least five years.[29]
[29] Primary decision [104].
On 26 July 2013, Dr Woollard's solicitors emailed the Regulation Agency, asking the Board to reconsider its decision to bring Dr Woollard before the Panel given the outcome of the Tribunal's orders in relation to Patient C and Patient H.[30]
[30] Primary decision [109].
On 3 September 2013, the investigator emailed Dr Clugston asking when he would be in a position to provide his report. Later that day, Dr Clugston advised the investigator that he would prepare the report over the coming weekend.[31]
[31] Primary decision [110].
On 9 September 2013, Dr Clugston emailed the investigator, advising that it had been necessary for him to work most of the weekend and that he would attempt to have his opinion to her by the end of the week.[32]
[32] Primary decision [111].
On 13 September 2013, Dr Clugston's report dated 12 September 2013 was received by the Regulation Agency. The report stated:[33]
If Dr Woollard had not yet completed a training program in coronary angioplasty at the time that he undertook what was a complex multi-vessel stenting procedure then my personal opinion is that that circumstance was entirely unacceptable.
My understanding is that the Cardiac Society of Australia and New Zealand had in place guidelines for training in coronary angioplasty in 2005. I do not know whether the Cardiac Society itself has any authority in declaring a Cardiologist competent or otherwise to proceed to undertake angioplasty without supervision. Likewise I do not know whether the Mount hospital had in place at the time (December 2005) credentialling criteria to ensure that Doctors performing angioplasty had undertaken a formal training program.
Worldwide, and in Australia in particular, training programs in angioplasty generally specify a precise number of angioplasties which must be undertaken either as primary or secondary operator. In general, as of 2005, an individual would not be considered competent until they had completed a training program.
I would not consider it appropriate that [Patient B] should have had a complex angioplasty procedure performed by an operator who had not completed a training program, or who was yet to complete a training program and was unsupervised.
I would note that I do not know that whether from a legal perspective completion of a training program is a prerequisite for an operator to undertake a coronary angioplasty procedure within Australia, either now or as of December 2005, [sic].
To summarise using the information available it is impossible to tell whether the adverse outcome (death) which occurred was in the setting of a competent operator encountering an avoidable or unavoidable complication which was managed well expertly, albeit with an adverse outcome, versus a less than expert operator performing to a standard below that expected of an interventional Cardiologist.
…
The inference drawn from Dr Hockings letter of 8 December 2005 was that Dr Keith Woollard may still have been in training as of the date of the procedure (15 December 2005) during which the patient died. If that was the case, and he was unsupervised, I would consider that unacceptable and entirely inappropriate. To perform the procedure unsupervised during a period of (incomplete) training may have contributed to or directly resulted in the patient's death. I would reiterate that I do not know whether in December 2005 there was any legal requirement for Dr Woollard to be 'trained' if he were undertaking an angioplasty procedure of any sort. (emphasis added)
[33] Primary decision [112].
On 23 September 2013, the Regulation Agency sent a letter to the Mount Hospital seeking further information relating to the general accreditation of practitioners performing coronary angioplasty procedures and Dr Woollard's particular accreditation.[34]
[34] Primary decision [115].
On 26 September 2013, the investigator spoke to an officer of the Mount Hospital in relation to the Regulation Agency's letter dated 23 September 2013. She made further enquiries of the hospital in order to ascertain the appropriate person to serve with an Investigator's Notice, and also discussed with Ms Jade Phelan of the Mount Hospital the further information sought by the Regulation Agency.[35]
[35] Primary decision [118] ‑ [120].
On 1 October 2013, the Regulation Agency sent a letter to Ms Phelan requesting information.[36]
[36] Primary decision [121].
On 14 October 2013, the Regulation Agency received from Ms Phelan:[37]
•a copy of a letter from Dr Woollard to Dr Crawford dated 14 December 2005;
•Dr Woollard's procedure logs headed 'Primary Operator' and 'Secondary Operator';
•a copy of a letter from Mr Sebbes, the Hospital Director of the Mount Hospital, to Dr Woollard dated 13 December 2005;
•a copy of a further letter from Mr Sebbes to Dr Woollard dated 13 December 2005;
•a copy of a letter from Mr Sebbes to Dr Woollard dated 2 December 2005 (with a handwritten annotation 29 October 2005); and
•a copy of a letter from Dr Woollard to Dr Crawford dated 10 October 2005.
[37] Primary decision [122].
On 23 October 2013, the investigator spoke to Mr Sebbes and obtained information from him in relation to the correspondence received by the Regulation Agency from Ms Phelan.[38]
[38] Primary decision [123].
On 12 November 2013, the Western Australian Notifications Committee of the Board (Notifications Committee) considered an agenda paper prepared by the investigator. The Notifications Committee deferred making a decision concerning Patient B pending the receipt of legal advice in the matter.[39]
[39] Primary decision [124].
On 13 November 2013, Dr Woollard's solicitors wrote to the Regulation Agency requesting an update on the investigation relating to Patient B.[40]
[40] Primary decision [125].
On 28 November 2013, the Board's solicitors provided the investigator with legal advice for the purpose of submission to the Notifications Committee.[41]
[41] Primary decision [126].
On 19 December 2013, the Notifications Committee considered the legal advice and decided to recommend to the Board that the matter involving Patient B be referred to the Tribunal.[42]
[42] Primary decision [127].
On 15 January 2014, the Board referred the matter to the Tribunal.[43]
[43] Primary decision [6], [129].
On 18 February 2014, the Regulation Agency wrote to Dr Woollard's solicitors advising that the Board had referred the complaint to the Tribunal.[44]
[44] Primary decision [130].
On 12 March 2014, Dr Woollard's solicitors wrote to the Regulation Agency. Dr Woollard's solicitors said:[45]
3.1The [Patient B] Notification was made on 23 May 2012, at a time when the [Patient S], [Patient H] and [Patient C] Proceedings (all relating to the performance by Dr Woollard of angioplasty procedures) were still before the SAT. At this time, it was open for the Board to expedite its investigation [in] relation to the [Patient B] Notification, make a decision to refer it to the SAT, and join it to the [Patient H] or [Patient C] Proceedings before the SAT. The Board chose not to do so.
3.2The Board's decision to now refer the [Patient B] Notification to the SAT for determination is a decision to re-litigate circumstances already dealt with in earlier proceedings. That is, it is a referral in relation to the performance by Dr Woollard of an angioplasty procedure, when Dr Woollard's performance of angioplasty procedures has already been dealt with by [the] SAT in the three separate proceedings (being [Patient S], [Patient H] and [Patient C] Proceedings). (emphasis added)
[45] Primary decision [131].

On 14 March 2014, the Regulation Agency emailed Dr Woollard's solicitors, advising them that the matter was in the process of being briefed to its solicitors.[46]
[46] Primary decision [132].
On 20 March 2014, the Regulation Agency sent a brief to its solicitors in relation to Patient B.[47]
[47] Primary decision [133].

The proceedings in the Tribunal

The course of the proceedings[48]

[48] The parties to this appeal agreed on a chronology of relevant events, including the course of the proceedings before the Tribunal, from which, with reference to the relevant documents filed in the Tribunal, the following section of these reasons is taken.

On 19 December 2014, the Board filed its application against Dr Woollard under s 196 of the Schedule to the National Law Act (the original application).[49]
[49] Primary decision [7].
On 30 January 2015, Dr Woollard filed his response statement.[50]
[50] Primary decision [151].
On 23 March 2015, Dr Woollard's solicitors wrote to the Board's solicitors inviting the Board to discontinue the proceedings.[51] Dr Woollard's solicitors referred to an earlier letter dated 12 March 2014 to the Regulation Agency. In their letter dated 23 March 2015, Dr Woollard's solicitors wrote:
If this matter continues to a hearing, and if the State Administrative Tribunal (SAT) decides to impose conditions on Dr Woollard's registration, any such conditions cannot protect the public any more than it is already currently protected by the conditions in place. Further, Dr Woollard has already been reprimanded on 3 separate occasions in relation to his performance of coronary angioplasties. Another reprimand will not protect the public in any additional way, and can only be punitive in nature … Finally, our client reserves the right to bring this letter to the attention of the SAT on the question of costs. That is, if the Board continues the proceeding in relation to this matter and is no more successful at hearing (ie, by having conditions imposed on Dr Woollard that are no more restrictive than those currently in place), then our client will seek a costs order, on an indemnity basis, against the Board from the date of this letter until the date of any final determination made by the SAT (including any appeals). (emphasis added)
[51] Primary decision [152].
On 22 April 2015, the Board filed witness statements by Dr Clugston and by the widow of Patient B. On 23 April 2015, the Board filed a witness statement by Dr Cope.[52] On 24 April 2015, the Board filed witness statements by Dr Cumpston and Dr Mews. The Board also filed a witness statement by Dr Hockings on 8 May 2015.
[52] GB 84.
On 7 May 2015, the Board's solicitors provided Dr Woollard's solicitors with a minute of proposed amended grounds of application (amended application). On 22 July 2015, the Board filed the amended application, without opposition by Dr Woollard's solicitors.
On 18 August 2015, Dr Woollard filed an amended response to the Board's amended application.
On 29 September 2015, Dr Woollard filed his witness statement.
On 1 October 2015, Dr Woollard's solicitors informed the Board's solicitors that they had 'received instructions to apply to strike out the action'.[53] On 5 October 2015, Dr Woollard filed an interim application to dismiss or strike out the proceedings. Each party filed evidence in relation to the application to dismiss or strike out the proceedings. The matter was heard on 4 November 2015. The Tribunal's decision was delivered on 17 March 2016.

The original application by the Board

[53] GB 243.

There were, in effect, three grounds raised by the Board in the original application. They were to the following effect:
(1)As at 15 December 2005, Dr Woollard was undergoing training, he was only authorised to undertake angioplasty procedures at the Mount Hospital if Dr Hockings was available to provide immediate assistance, and he was not sufficiently experienced in conducting complex angioplasty procedures without the direct supervision of a suitable supervisor.[54]
(2)Dr Woollard failed to inform Patient B, either adequately or at all, of the risks of treating his coronary artery disease by means of angioplasty and/or the option of referral to a cardiothoracic surgeon for an alternative procedure.[55]
(3) Dr Woollard knowingly misled the widow as to the cause of Patient B's death as something other than what it was.[56]
[54] Primary decision [145] ‑ [147].
[55] Primary decision [148].
[56] Primary decision [149].
By his response filed 30 January 2015, Dr Woollard, in relation to ground (1) above concerning his alleged inexperience:[57]
(a)admitted that he was undergoing training in the performance of angioplasty procedures as at 15 December 2005;
(b)alleged that 'he had reached the numbers required for training as suggested by the Cardiac Society guidelines in place at that time', being 75 procedures as the primary operator and 125 procedures as the secondary operator;
(c)alleged that the Mount Hospital had agreed in writing, dated 26 October 2005, to confer upon him temporary accreditation, subject to Dr Hockings being able to provide backup in case of a major problem developing which required immediate assistance; and
(d)alleged that Dr Hockings had agreed to help if an emergency situation developed.
[57] BB 66.
Dr Woollard particularised these allegations by reference to:
(a)a letter dated 10 October 2005 from Dr Woollard to Dr Crawford, chairman, Medical Advisory Committee of the Mount Hospital;
(b)a letter dated 26 October 2005 from Mr Sebbes to Dr Woollard; and
(c)a letter from Dr Hockings to Dr Woollard dated 8 December 2005.
Relevantly, Dr Woollard's letter to Dr Crawford dated 10 October 2005 stated:[58]
As mentioned I have reached the numbers required for training as suggested by the Cardiac Society current guidelines (75 procedures as the primary operator and 125 as the secondary operator) … I believe it would be appropriate to continue in a training model. (emphasis added)

The amended application

[58] GB 122.

By its amended application, the Board:
(a)alleged as a fact that Dr Woollard's training was incomplete and gave particulars of that allegation which also served as particulars of the allegation in the original application that Dr Woollard was in training and had insufficient experience to conduct the angioplasty procedure on Patient B without direct supervision of a suitable supervisor;[59]
(b)alleged that Dr Woollard, by his letters dated 10 October 2005 and 14 December 2005, made false representations to Dr Crawford, the chairman of the Medical Advisory Committee of Mount Hospital, about his training and experience;[60] and
(c)alleged that Dr Woollard failed to ensure adequate anticoagulation of Patient B during the procedure (Anticoagulation Claim).[61]
[59] Pars 15 ‑ 16 of the amended application, BB 71 - 73.
[60] Pars 17 ‑ 20 of the amended application, BB 73 ‑ 75.
[61] Primary decision [161].
Dr Woollard's letter of 14 December 2005, referred to in par (b) of the preceding paragraph, included the following:[62]
[62] GB 123 - 124.
As promised, I enclosed [sic] the log book summary of the angioplasty procedures I have undertaken at the Mount Hospital.
…
104 procedures were carried out with myself as the primary operator …
Secondary Operator
There were 49 cases where I functioned as the secondary operator at the Mount Hospital …
Previous Experience
My initial training in angioplasty commenced well before any Cardiac Society or other guidelines had been drawn up. The experience at that time was as a secondary operator assisting with the angioplasty procedures carried out on my patients at Royal Perth Hospital.
There is no official record of these procedures as there was no reason to keep log books. Exposure took place over several years and involved well over 100 patients.
…
PS The complete details of all procedures are contained in a set of individual files kept at my office. I would be happy to arrange for you or a nominee to review the files if necessary. (emphasis added)

The Inadequate Training Claim

The Board's allegation and particulars referred to in par (a) of [58] above, will be referred to as the 'Inadequate Training Claim'. In relation to that claim, the Board alleged, in effect, that:[63]
(a)Dr Woollard had commenced training in the performance of coronary angioplasty procedures on or about 4 April 2004;
(b)Dr Woollard had received certain training by 'Trainers' engaged or retained by Dr Woollard;
(c)as at 15 December 2005, Dr Woollard's records showed that he had been supervised by Trainers in respect of 101 coronary angioplasty procedures performed at the Mount Hospital, of which he was the secondary operator in respect of 35 procedures, and the primary operator in respect of 66 procedures;
(d)Dr Woollard had not, prior to 15 December 2005, performed any angioplasty procedures without a Trainer being present;
(e)the Cardiac Society guidelines in 2001 in effect specified that competency would require a doctor to participate in at least 200 procedures, with a minimum of 75 procedures as the primary operator; and
(f)the Cardiac Society guidelines in 2005 increased those figures to 400 and 200 respectively.
[63] Amended application, par 15; BB 71 - 72.
In his amended response dated 18 August 2015, Dr Woollard:[64]
(a)did not admit that his training in coronary angioplasty was incomplete, or that he was not sufficiently experienced or that he had commenced training on or about 4 April 2004;
(b)admitted that his training was provided by the 'Trainers' as alleged, and that the Trainers visited Western Australia in order to provide training to Dr Woollard in the performance of angioplasty procedures at the Mount Hospital;
(c)alleged that he had reached the numbers required for training as suggested by the 2001 Cardiac Society guidelines (being 75 procedures as the primary operator and 125 procedures as the secondary operator);
(d)alleged that the 2005 Cardiac Society guidelines were not relevant; and
(e)repeated by way of particulars, the correspondence referred to in his original response.

The False Representation Claim

[64] Amended response, par 13; BB 81 - 82.

The claim referred to in par (b) of [58] above in the Board's amended application will be referred to as the 'False Representation Claim'. In that regard, the Board alleged that:[65]
[65] Amended application, pars 17 - 22; BB 73 - 75.
(a)by letter dated 10 October 2005 to Dr Crawford, Dr Woollard represented that he had performed at least 75 coronary angioplasty procedures as primary operator and at least 125 as secondary operator;
(b)by letter dated 14 December 2005 and accompanying documents, Dr Woollard represented to Dr Crawford that:
(i)he had performed 104 coronary angioplasty procedures at the Mount Hospital as primary operator and 49 as the secondary operator;
(ii)he had undertaken training in the performance of coronary angioplasty procedures by assisting as secondary operator on over 100 occasions at the Royal Perth Hospital;
(iii)he had performed significantly in excess of the number of procedures required by the Cardiac Society guidelines for coronary angioplasty competency;
(c)the representations were false in that:
(i)Dr Woollard had only been involved in 101 coronary angioplasty procedures at the Mount Hospital (35 as secondary operator and 66 as primary operator);
(ii)he had not assisted as secondary operator at the Royal Perth Hospital; and
(iii)he had not met the Cardiac Society guidelines;
(d)Dr Woollard made the false representations knowingly.
In his amended response to the False Representations Claim, Dr Woollard admitted that he had sent the letters to Dr Crawford dated 10 October 2005 and 14 December 2005. He said that he sent with the 14 December 2005 letter 'a log book summary of his angioplasty procedures as primary and secondary operator which log book set out, amongst other things, the date of each procedure, the vessel, whether balloon or stent and the patient unique identifying number', and that he had offered to arrange for the files to be available for review. He otherwise denied the allegations.[66]
[66] Amended response, pars 15 ‑ 17; BB 82.
As noted earlier, the parties filed witness statements in the Tribunal, including in relation to the Inadequate Training Claim and the False Representation Claim prior to Dr Woollard's application to have the proceedings dismissed as an abuse of process.

Underlying issues raised by the Inadequate Training Claim and the False Representation Claim

The judge in effect observed (with respect, correctly),[67] that there were two underlying issues raised by the parties' respective cases in relation to the Inadequate Training Claim and the False Representation Claim. The first concerned the method of counting of procedures for the purposes of the Cardiac Society guidelines. Dr Woollard, in his witness statement, said, in effect, that he regarded each vessel treated in the one patient as a separate procedure.[68] The Board's evidence, on the other hand, was to the effect that a 'procedure' is understood by interventional cardiologists to mean and include all of the aspects of the angioplasty procedure on a patient.[69]
[67] Primary decision [186] ‑ [187], [192], [199] ‑ [204].
[68] Dr Woollard's witness statement, pars 47, 49, GB 105 and annexed letter dated 14 December 2005; GB 123 ‑ 127.
[69] Witness statement of Dr Clugston, par 43; GB 77 ‑ 78.
The second issue concerned Dr Woollard's involvement as 'secondary operator' in procedures at Royal Perth Hospital in the 1980s. Even on Dr Woollard's stated method of counting procedures, he had only, according to his filed response and witness statement, performed 49 procedures at the Mount Hospital. This, together with his 104 procedures (on his counting) as primary operator at the Mount Hospital still put the total number of procedures at fewer than 200.[70] Dr Woollard, in this regard, also relied on his stated involvement in angioplasty procedures at Royal Perth Hospital, in relation to which, according to his letter of 14 December 2005, there was 'no official record'.
[70] For present purposes, it is sufficient to refer only to the 2001 Cardiac Society guideline numbers.
The Board had filed a witness statement by Dr Cope who had performed angioplasty procedures at Royal Perth Hospital in the 1980s. Dr Cope in his witness statement said:[71]
I did not perform any angioplasty cases with the assistance of Dr Keith Woollard. It is possible that Dr Woollard observed cases performed by me, although I have no memory of him doing so. Dr Woollard was never a participant in any angioplasty training program at Royal Perth Hospital at any time whilst I worked there.
Dr Woollard asked me to train him in angioplasty. I do not recall the year in which he made this request. Dr Woollard said that he would supply the cases. I declined to train Dr Woollard in angioplasty procedures.
[71] GB 85.
Dr Woollard, in his witness statement in relation to this matter, said:[72]
In the early 1980s, when angioplasty was first introduced at Royal Perth Hospital, I indicated a desire to participate.
There was no formal training program. However, over a subsequent period of 1 ‑ 2 years, I was involved with more than 100 angioplasty procedures carried out by Dr Geoffrey Cope at Royal Perth Hospital. Many, but not all, of the patients were my patients from Fremantle Hospital who I had referred for angioplasty. I stayed on after my angiogram sessions at Royal Perth Hospital for Dr Cope's subsequent angioplasty sessions on patients who were not mine.
Dr Cope has acknowledged that it was possible that I observed cases performed by him, although he has no memory of me doing so. However, his statement says he did not perform any cases with my assistance. In answer to this I expressly recall having both observed and assisted Dr Cope perform those procedures in the 1980s. I have a clear recollection of being scrubbed and performing tasks at his instruction, including insertion of catheters, inflation of balloons and injection of contrast. These tasks are identical to those performed by a 'secondary operator' in a formal program. In relation to those patients who were my patients, I was also responsible for the decision on whether they should undergo angioplasty (rather than medical treatment or bypass surgery) and for the post procedural care. During these procedures there were usually 4 people in the room (Dr Cope, myself, a nurse and a radiographer) and a technician in the control room adjacent to the procedure room.
…
I considered that I had been a 'secondary operator' when working with Dr Cope. For my patients, I made the initial decision as to whether angioplasty (rather than persisting with just medical treatment or being referred for coronary artery surgery) should be recommended to the patient. I was always responsible for the pre and post procedural management of my patients. I would always scrub in during the procedures. My involvement during the procedure would vary case to case but I did perform tasks instructed by Dr Cope, as outlined above.
As of December 2005 I believed that my experience observing and assisting Dr Cope in over 100 angioplasty procedures many years before, together with frequent exposure to angioplasty in the intervening period, my extensive involvement in educational programs about angioplasty and in particular my management before and after angioplasty of several thousand of my patients, and combined with the 153 procedures listed in the log, was more than adequate to meet the descriptor.
[72] Dr Woollard's witness statement, pars 23 - 25, 55 - 56; GB 99 - 100, 106 - 107.

Dr Woollard's abuse of process application

On 5 October 2015, Dr Woollard applied for orders that the Tribunal dismiss, or alternatively strike out, the Board's application pursuant to s 47(1) of the SAT Act.[73]

The evidence before the Tribunal

[73] Primary decision [10].

The evidence before the Tribunal comprised certain affidavits relied on by the respective parties. There was no cross‑examination.
Dr Woollard swore an affidavit dated 7 October 2015 in support of his application.[74] Dr Woollard also relied on affidavits sworn by his solicitor, Mr Nicholas Cooper, on 6 October 2015 and 4 November 2015. Mr Cooper's affidavit of 6 October 2015 was the principal of the two affidavits.
[74] Primary decision [163].
The Board relied on the affidavits of Ms Stanton, solicitor for the Board, sworn 19 October 2015, 2 November 2015 and 3 November 2015, as well as an affidavit by Ms Bradshaw, senior legal adviser to the Regulation Agency, sworn 29 October 2015.
Generally speaking, it appears that his Honour's primary findings of fact referred to in [6] ‑ [45] above were based on Ms Bradshaw's affidavit and Mr Cooper's affidavit sworn 6 October 2015. For present purposes, it is only necessary to refer in any detail to Mr Cooper's affidavit of 6 October 2015 and Dr Woollard's affidavit of 7 October 2015.

The affidavit of Dr Woollard's solicitor

Mr Cooper in his affidavit dated 6 October 2015 annexed a chronology of events in relation to the complaints involving Patient B and other patients, and said that there had been what he called a 'delay period' between the Board receiving the widow's complaint in relation to Patient B on 22 May 2012, and the date upon which the original application was filed on 19 December 2014.[75] There was no reference to a 'delay period' between 19 December 2014 and the filing of the amended application in July 2015. The chronology prepared by Mr Cooper included reference to the death of Dr O'Shea on 15 March 2015, but Mr Cooper did not seek to explain in his affidavit the significance of that event for the purposes of Dr Woollard's abuse of process application. Also in that affidavit, Mr Cooper deposed to the effect that:
(a)the Board filed an application on 23 February 2012 in relation to Patient C, and filed an application on 7 November 2012 in relation to Patient H;
(b)on 12 June 2013, the Patient H and Patient C matters were resolved by consent, including an order that Dr Woollard be prohibited from performing any angiogram procedure and any angioplasty and stenting procedure on anyone, with a condition that the prohibition be reviewed in five years;
(c)the Tribunal heard the Patient S matter on 26 and 27 June 2012;[76]
(d)the Board received notification of the Patient A matter on 30 October 2012. That matter was referred to a performance and professional standards panel on 31 March 2014 in relation to Dr Woollard's communication with the patient prior to performing the procedure, and on 29 August 2014, the panel decided that Dr Woollard had behaved in a way that constituted unsatisfactory professional performance and cautioned him;
(e)on 11 December 2012, the Board decided to investigate the Patient W matter, and on 15 January 2014, the performance and professional standards panel determined that Dr Woollard had no case to answer; and
(f)on 18 May 2012, the Board received notification of the Patient M matter and, at a hearing on 18 November 2014 before the performance and professional standards panel, it was determined that Dr Woollard had no case to answer.
[75] Mr Cooper's affidavit, par 14.
[76] The Tribunal's decision in relation to the Patient S complaint was Medical Board of Australia and Woollard [2012] WASAT 209; primary decision [87].

Mr Cooper deposed that, in relation to the Patient M, Patient W and Patient H matters, the complaints included allegations to the effect that Dr Woollard had failed to adequately provide information to the patients. In relation to the Patient H matter, it was also alleged that Dr Woollard gave certain advice which he knew was wrong or could mislead or (in respect of one piece of advice), which he erroneously believed to be true. In the Patient H matter it was also alleged that he failed to order an anticoagulant during a procedure.[77]
[77] The complaints in relation to Patient C and Patient H were the subject of the Tribunal's decision in Medical Board of Australia and Woollard [2013] WASAT 101.
Mr Cooper also deposed to correspondence passing between his firm and the Board, including his letter dated 12 March 2014 (see [43] above) and his letter dated 23 March 2015 (see [48] above).

Dr Woollard's affidavit

In this affidavit, Dr Woollard said, in effect, that Dr O'Shea had been his partner in practice for several decades, that he and Dr O'Shea had developed an angioplasty training program jointly and that Dr O'Shea had acted as secondary operator when Dr Woollard did coronary angioplasty procedures for his patients as primary operator, and Dr Woollard had acted as secondary operator for Dr O'Shea when Dr O'Shea was primary operator for Dr O'Shea's patients.[78]
[78] Dr Woollard's affidavit, sworn 7 October 2015, par 4; GB 245.
Dr Woollard also said that, in relation to his angioplasty training:[79]
5.By way of background, in the early 1980s, when angioplasty was first introduced at Royal Perth Hospital, I indicated a desire to participate.
6.There was no formal training program. However, over a subsequent period of 1 - 2 years, I was involved with more than 100 angioplasty procedures carried out by Dr Geoffrey Cope at Royal Perth Hospital. Many, but not all, of the patients were my patients from Fremantle Hospital who I had referred for angioplasty. I sometimes stayed on after my angiogram sessions at Royal Perth Hospital for Dr Cope's subsequent angioplasty sessions on patients who were not mine.
[79] Dr Woollard's affidavit, sworn 7 October 2015, pars 5 - 6; GB 245.
Under the heading 'Formal Angioplasty Training', Dr Woollard deposed:[80]
15.A program was developed by myself and Dr O'Shea with the assistance of Dr Kalarickal and accepted by the Mount Hospital. Seven expert cardiologists from the eastern states, India and the United Kingdom attended for repeated one week sessions during which Dr O'Shea and myself would carry out angioplasty procedures at the Mount Hospital in Perth under their supervision. These are the procedures listed in the log book attached to the letter to Dr Patrick Crawford dated 14 December 2005.
[80] Dr Woollard's affidavit, sworn 7 October 2015, par 15; GB 247.
In relation to clinical records, Dr Woollard referred to certain correspondence between the Board and his solicitors in April ‑ July 2015, in relation to alleged discrepancies in certain records, and said that had these issues been raised at any time between the procedure on 15 December 2005, or the complaint on 22 May 2012, and shortly before Dr O'Shea's death in March 2015, he would have instructed his solicitors to contact Dr O'Shea and request all of his books and records regarding the relevant procedures and to obtain a witness statement from him. He said that he was 'sure' that Dr O'Shea would have confirmed that his records were accurate.[81]
[81] Dr Woollard's affidavit, sworn 7 October 2015; pars 17 - 23; GB 247 - 248.
In relation to the training procedures performed in the 'lead up' to 15 December 2005, Dr Woollard deposed:[82]
24.[M]y secretary collected from Dr O'Shea the procedure reports and Mount Hospital event logs for each angioplasty patient. However, she did not collect all clinical, or any administrative, records from Dr O'Shea. For example, none of the ancillary records, such as Dr O'Shea's accreditation application records, were collected by my secretary. Further, after Dr O'Shea passed away, my secretary informed me that Dr O'Shea's wife and his secretary had told her that they had collected and then destroyed all of his administrative records stored at our rooms eg log books and accreditation material. Therefore, I believe that a complete set of his angioplasty files and records are no longer available.
25.[M]y practice is to retain only the clinical notes of my patients for more than 5 years. All the ancillary and administrative files are destroyed (eg log books). Therefore, I no longer have all of the written material in relation to every angioplasty procedure.
[82] Dr Woollard's affidavit, sworn 7 October 2015; pars 24 - 25; GB 248.
In a section of the affidavit under a main heading 'Discussions with Dr O'Shea', Dr Woollard deposed that:[83]
26.Prior to my ceasing to perform angioplasties, Dr O'Shea and myself had regular meetings to discuss cases and we would have discussed [Patient B]. I myself cannot remember what we discussed about [Patient B], as I can now only remember the fact that we had discussions, not their content. I do not know what, if anything, Dr O'Shea remembered about our discussions.
…
27.Dr O'Shea and I also discussed the counting of angioplasty procedures. To the best of my recollection and belief, Dr O'Shea agreed with my approach that one stenosis could count as one procedure.
…
28.After I received the initial notification from the Board that I was not sufficiently experienced in the performance of angioplasty procedures to justify performing the procedure on [Patient B], I told Dr O'Shea about it. He expressed surprise. He spoke to me in a supportive manner and left me with the impression that he would have given evidence to support the adequacy of my training and experience.
[83] Dr Woollard's affidavit, sworn 7 October 2015; pars 26 - 28; GB 248 - 249.
In a section of the affidavit headed 'The condition', Dr Woollard deposed:[84]
29.I have never said that I intend to apply for the condition which prohibits me from performing any angiogram procedure and performing any angioplasty and stenting procedure on any person to be lifted, and have no intention of doing so.
[84] Dr Woollard's affidavit, sworn 7 October 2015; par 29; GB 249.

Primary decision

Overview

The primary decision was delivered on 17 March 2016.
The judge made findings of primary fact, or at least accepted the evidence of Dr Woollard in relation to primary facts (as noted below) concerning the business relationship between Dr Woollard and his former partner Dr O'Shea; their development of and involvement in a training programme at the Mount Hospital; certain conversations between Dr Woollard and Dr O'Shea; the death of Dr O'Shea; the records of Dr O'Shea and Dr Woollard which remain available and those which do not remain available; and the absence of any records from Royal Perth Hospital.
Beyond these matters of primary fact, the judge also drew certain inferences including as to delay, prejudice and the public interest (which are the subject of challenge in this appeal).
The judge held that prejudice by reason of delay, 'double jeopardy' and public interest, although not an exhaustive statement of the bases upon which disciplinary proceedings may be dismissed for abuse of process, were sufficient to determine Dr Woollard's application.[85] The judge observed that Dr Woollard alleged three areas of prejudice in his application:[86]
(1)the death of Dr O'Shea;
(2)the destruction of some of Dr O'Shea's records; and
(3)the destruction of some of Dr Woollard's records.
[85] Primary decision [24] - [25].
[86] Primary decision [165].
His Honour also noted that different considerations applied to the various grounds alleged by the Board and accordingly divided them into, in effect, three distinct sections:[87]
(a)the grounds contained in the original application;
(b)the Inadequate Training Claim and the False Representation Claim;
(c)the Anticoagulation Claim.
[87] Primary decision [166].
In summary, his Honour found that:[88]
(a)there was no abuse of process in relation to the original application;
(b)there was no abuse of process in relation to the Anticoagulation Claim in the amended application; and
(c)the pursuit of the Inadequate Training Claim and the False Representation Claim constituted an abuse of process.

The question of delay

[88] Primary decision [237] - [238].

His Honour made findings to the following effect:
(a)the delay between the death of Patient B and the original application and amended application was 'extremely long',[89] nevertheless, there had been no 'inexcusable delay' prior to the Board receiving the widow's complaint;[90]
(b)there had been a 'long delay' of 2^1/2 years between the widow's notification of complaint, and the filing of the original application and amended application;[91]
(c)this delay was 'an extraordinary delay';[92]
(d)there was 'nothing to explain or justify' the extraordinary delay between the filing of the complaint in May 2012 and the Board's original application in 2014 and amended application in 2015;[93]
(e)Dr Woollard has not been responsible for or tolerated the delay;[94] and
(f)Dr Woollard's training had been raised before the Regulation Agency on 13 September 2013 in Dr Clugston's report dated 12 September 2013,[95] however, 'well prior to' 23 September 2013, the Board 'must have been concerned about Dr Woollard's training', given that the complaint in relation to Patient B was not isolated, and the number of complaints against Dr Woollard 'indicated a systematic failure' on his part.[96]
[89] Primary decision [170].
[90] Primary decision [68] - [69].
[91] Primary decision [170].
[92] Primary decision [220(a)].
[93] Primary decision [171], [220(b)]. (The judge's reference in [171] to the filing of the original application in 'January 2015' appears to be an error.)
[94] Primary decision [172].
[95] Primary decision [183].
[96] Primary decision [116] - [117] (emphasis added).
The meaning of this last‑mentioned inference of fact is not, with respect, entirely clear. Dr Woollard contends that the judge was not making a finding at all, but was 'merely lamenting the absence of an explanation'.[97] It is difficult to accept that his Honour was merely voicing a lament, given that the statement appears in that part of the primary decision in which his Honour was making findings concerning the history of the relevant events, evidently with a view to considering the question of any undue delay. Rather, it appears to be a finding to the effect that the Board, acting reasonably, ought to have been sufficiently concerned about the possible inadequacy of Dr Woollard's training in the actual performance of angioplasty procedures as to commence investigations into that topic for the purpose of dealing with the widow's complaint, well prior to 23 September 2013. It appears to be an inference drawn from the fact and nature of the complaint in relation to Patient B in the context of the other complaints against Dr Woollard. His Honour did not make a finding of fact as to when, prior to 23 September 2013, the Board, acting reasonably, ought to have commenced the investigation into Dr Woollard's training.
[97] Respondent's written submissions, par 41; WB 40.
The judge also made a number of particular findings to the effect that there was no specific explanation for the lapse of time that occurred between certain steps taken by the Board in the period May 2012 up to July 2015. These findings are considered in greater detail later in these reasons.
The judge also found that after the 'allegation' raised in 2013 by Dr Clugston, the 'Board took nearly two years to do anything about it'.[98]

The question of prejudice

[98] Primary decision [232].

The judge next considered the question of whether any prejudice arose from delay in relation to the Inadequate Training Claim and the False Representation Claim. His Honour did so by reference to the death of Dr O'Shea, the destruction of some of Dr O'Shea's records, and the destruction of some of Dr Woollard's records. Although not entirely clear, the judge also appears to have considered that the absence of Royal Perth Hospital records was also a source of prejudice.[99]
[99] Primary decision [203], [210]
As to prejudice in connection with Dr O'Shea's death, the judge recited Dr Woollard's affidavit evidence to the effect that Dr O'Shea had been a long‑time business partner, that they had developed a training program and trained together, and that they had acted as primary operators for their own patients and as secondary operators for each other's patients.[100] The judge also referred to Dr Woollard's evidence that he had discussed Patient B with Dr O'Shea.[101] The judge then said, in relation to the method of counting procedures in the context of his discussion concerning prejudice resulting from Dr O'Shea's death:[102]
Dr Woollard's evidence is that he discussed the counting of angioplasty procedures with Dr O'Shea and that to the best of Dr Woollard's recollection, Dr O'Shea agreed with Dr Woollard's approach that one stenosis could count as one procedure. These matters are plainly relevant to the [False Representation Claim] in paragraphs 17 to 20 of the Board's amended application. The Board alleges … that, in Dr Woollard's letter to Dr Crawford [dated 14 December 2005], Dr Woollard represented to Dr Crawford and the [Medical Advisory Committee] that he had falsely misrepresented the number of procedures he had carried out. It alleged that Dr Woollard had performed only 35 coronary angioplasty procedures.
It is clear that a finding as to what Dr Woollard believed to constitute a procedure is an essential element of the allegation that Dr Woollard made false representations.
Proof of false representations by the Board requires proof of Dr Woollard's intention. A crucial part of Dr Woollard's defence will be evidence as to his intention.
Dr O'Shea's evidence as to what he [Dr O'Shea] considered a procedure to be, and any discussion with Dr Woollard, would have been very relevant to Dr Woollard's defence and to the Tribunal's determination of Dr Woollard's intent.
…
Dr O'Shea's evidence, which relates to Dr Woollard's intention may have been critical to Dr Woollard's defence. Dr O'Shea's death constitutes actual prejudice to Dr Woollard. (emphasis added)
[100] Primary decision [184].
[101] Primary decision [185].
[102] Primary decision [186] ‑ [189], [198].
In relation to the question of any prejudice arising from the loss or unavailability of records, the judge referred to the statements made by Dr Woollard in pars 24 and 25 of his affidavit (referred to in [81] above).[103] His Honour appears to have found as primary facts that:
(a)Dr Woollard 'no longer has all of the written material in relation to every angioplasty procedure';[104]
(b)Dr Woollard (by his secretary) collected 'the procedure reports and Mount Hospital event logs for each angioplasty patient from Dr O'Shea' but did not collect 'all of Dr O'Shea's records' and Dr Woollard 'does not have any of Dr O'Shea's administrative records';[105]
(c)all of Dr O'Shea's 'administrative records stored at his rooms, for example, log books and accreditation material' have been destroyed.[106]
[103] Primary decision [205] ‑ [207]. At [205], the use of the word 'not' involves a misstatement of Dr Woollard's evidence and is presumably a typographical or similar error by the judge.
[104] Primary decision [205].
[105] Primary decision [206].
[106] Primary decision [207].
The judge inferred that 'Dr Woollard's [records] or [sic] Dr O'Shea's records would be relevant to Dr Woollard's training, the number of procedures he conducted and to the allegation of fraud', ie, the False Representation Claim.[107]
[107] Primary decision [209].
The judge also found as a fact that there are no records in relation to any involvement by Dr Woollard at Royal Perth Hospital in the 1980s in assisting with angioplasty procedures.[108]
[108] Primary decision [203].
The judge concluded:[109]
The death of Dr O'Shea and the loss of the records constitute actual prejudice to Dr Woollard in relation to the amended application, apart from the use of anticoagulants.
[109] Primary decision [210].
The judge found that Dr Woollard's affidavit did not establish any actual prejudice arising in relation to the Board's original application.[110] Also, there was no proven or likely prejudice to Dr Woollard arising from the Anticoagulation Claim.[111]

'Double jeopardy'

[110] Primary decision [175].

[111] Primary decision [213].

His Honour then turned to consider whether there had been an abuse of process by the Board 'arising from double jeopardy' and said:
(a)The complaints in relation to Patient B in the original application were, in substance, the same or closely related to the complaints made in relation to other patients.[112]
(b)The Board's application in relation to Patient B was not punitive, although it was 'poorly managed' because the Board failed to appreciate its urgency.[113]
(c)Double jeopardy did not apply in respect of the Inadequate Training Claim and the False Representation Claim raised in the amended application, both of which were new.[114]
(d)The Anticoagulation Claim was, in substance, the same or closely related to grounds that had been previously dealt with in other proceedings involving Dr Woollard.[115]

Public interest

[112] Primary decision [215].

[113] Primary decision [221].

[114] Primary decision [222].

[115] Primary decision [224].

The judge commenced his consideration of the topic by saying that the 'public interest in the complaint against Dr Woollard being resolved by a hearing must be balanced against the fairness of the hearing',[116] although he does not ultimately appear to have found that a fair trial was not possible.[117]
[116] Primary decision [226].
[117] See primary decision [238].
The judge referred to the orders made by the Tribunal in relation to the complaint by Patient S on 19 December 2012.[118] In that matter, the Tribunal had found that Dr Woollard had acted carelessly but not incompetently because, at the relevant time, he was in the final stages of training and he performed the angioplasty in question under the supervision of an accredited interventional cardiologist. The Tribunal reprimanded Dr Woollard and imposed two conditions on his registration. The first condition was, broadly, to the effect that he should not perform any angioplasty or stenting procedures unless directly supervised and observed by an interventional cardiologist with at least five years' post‑accreditation experience, approved by the Board, until Dr Woollard himself had completed, within a 12‑month period, at least 75 angioplasty procedures as primary operator while under such supervision, and had submitted to the Board for approval a verified log book setting out the details of the procedures. The other condition was that Dr Woollard must not inflate or cause the inflation of any angioplasty balloon above its rated burst pressure. Dr Woollard was also fined.
[118] Primary decision [94].
The judge also referred to the orders made by the Tribunal (by consent) in relation to Patient C and Patient H, on 12 June 2013.[119] In that matter, the Tribunal made orders to the effect that Dr Woollard was reprimanded, and that his registration was subject to the condition that he be prohibited from performing any angiogram, angioplasty and stenting procedures, with such condition to be reviewed in five years. Dr Woollard was also fined. The judge observed that the effect of these orders was that Dr Woollard 'will not carry out any angioplasty procedures until at least 12 June 2018'.[120]
[119] Primary decision [105].
[120] Primary decision [227].

The judge proceeded to make the following findings:
(a)In relation to the grounds contained in the original application and the Anticoagulation Claim, having regard to the orders made in relation to Patients S and C, it is difficult to see any public interest in making further orders that would, in effect, replicate the earlier restrictions.[121]
(b)However, the False Representation Claim goes to Dr Woollard's fitness to practise as a medical practitioner, rather than merely his fitness to carry out particular procedures.[122]
(c)Although the False Representation Claim is relevant to Dr Woollard's fitness to practise, Dr Woollard has been in practice for many years and, other than the angioplasty procedures, nothing has previously come before the Tribunal or its predecessors in relation to his fitness to practise.[123]
(d)There is no public interest in the pursuit of the False Representation Claim or the Inadequate Training Claim against Dr Woollard.[124]
[121] Primary decision [227].
[122] Primary decision [229].
[123] Primary decision [230].
[124] Primary decision [235].
In relation to the question of public interest, the judge also referred to the widow's complaint of 22 May 2012,[125] the terms of which included the following:[126]
Dr Woollard admitted to me directly after the incident that 'something went terribly wrong' and that a section of plaque had occluded the main coronary artery. It was not until I received the full coroner's report, that I was aware of the catheter wire dissecting the artery.
I … sent [a letter] to the coroner after his report, but I never received a reply and neither did my follow‑up phone call.
Dr Woollard was also not available when I tried to contact him.
At that time I was emotionally unable to follow through with this complaint …
I would like you to follow‑up on this complaint if possible.
Perhaps he (Dr Woollard) should not be attempting this procedure, or if so, perhaps he should be under supervision.
[125] Primary decision [233].
[126] GB 161 - 162.
His Honour quoted the last paragraph of the complaint and said, in that regard:[127]
The orders of the Tribunal ensured that Dr Woollard would not be allowed to do so until at least 12 June 2018. The Widow's request has been met.
[127] Primary decision [234].
The judge concluded:[128]
Dr Woollard has not established abuse of process by delay in relation to the original application nor the anticoagulants ground in the amended application.
The Tribunal is satisfied that, in relation to the amendments identified in the Board's amended application, other than the anticoagulant ground [ie, the Inadequate Training Claim and the False Representation Claim], the issues raised in the amendments should be struck out as an abuse of process. The stage has been reached where the delay in the prosecution of the disciplinary proceedings against Dr Woollard is so prolonged that it is unreasonable. Dr Woollard has suffered actual prejudice. Dr Woollard does not share responsibility for the delay. Dr Woollard can justifiably claim that the application has passed beyond what can be justified in the due administration of justice. There would be no public interest in combining two parts of the proceeding. The Tribunal is satisfied that the continuation of this part of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
Dr Woollard has satisfied the Tribunal that the exceptional circumstances justify the Tribunal striking out those paragraphs pursuant to s 47(1) of the SAT Act.
[128] Primary decision [237] ‑ [239].

The appeal

The appellant's case, as amended, sets out six grounds of appeal to the following effect:
1.The judge erred in law in proceeding on the basis that the entire period from 22 May 2012 was unexplained and unjustified, when such a finding was contrary to his own findings of fact, was not supported by probative evidence and was not otherwise reasonably open on the evidence.
2.The judge erred in law in finding that Dr Woollard was prejudiced by Dr O'Shea's death through the loss of evidence from Dr O'Shea, when:
(a) his Honour did not make a finding that, but for the unexplained or unjustified delays, the application would have otherwise been heard before Dr O'Shea's death;
(b)there was no or no probative evidence that Dr O'Shea could or would have given evidence;
(c)that finding was otherwise not reasonably open on the evidence; and
(d) the judge failed to give any or any adequate reasons for that finding.
3.The judge erred in law in finding that Dr Woollard was prejudiced by Dr O'Shea's death through the loss of his records, when:
(a)there was no or no probative evidence that Dr O'Shea's records were relevant to any issue in the proceedings;
(b)that finding was otherwise not reasonably open on the evidence; and
(c)the judge failed to give any or any adequate reasons for that finding.
4.The judge erred in law in finding that Dr Woollard was prejudiced through the loss of Royal Perth Hospital records, when:
(a)there was no or no probative evidence that there were ever any records held by Royal Perth Hospital that were relevant to any issue in the proceedings; and
(b)there was no or no probative evidence that any relevant records that might have existed were lost or destroyed after Patient B's death or after Dr Woollard received notification of the complaint on 22 May 2012.
4A.The judge erred in law in finding that Dr Woollard was prejudiced through the loss of his own records, in that:
(a)there was no or no probative evidence that the practitioner's records were relevant to any matter in issue in the proceedings;
(b)that finding was otherwise not reasonably open on the evidence; and
(c)the learned president failed to give any or any adequate reasons for that finding.
5.The judge erred in law in finding that the allegations in question were not in the public interest, when:
(a) that finding was itself affected by one or more of the errors identified in grounds one to four;
(b)the judge took into account irrelevant considerations;
(c)the judge failed to take into account or have regard to submissions filed by the Board on 30 November 2015; and
(d)that finding was otherwise not reasonably open on the evidence.
6.The judge erred in law in that his conclusion that the maintenance of the two allegations in question was an abuse of process was not reasonably open.
Dr Woollard filed a notice of contention to the effect that the judge's decision should be upheld on the following two further bases:
1.If, as the Board contends, the [Tribunal's] finding of prejudice in relation to the allegation that [Dr Woollard] falsely represented that he had assisted in procedures at Royal Perth Hospital (the RPH Representation) was limited to the indirect prejudice caused by the death of Dr O'Shea, there was also prejudice simply by reason of the fact that the events occurred 30 years ago;
2.The other complaints against [Dr Woollard] and the proceedings in issue were relevant in the weighing exercise, even though there was not 'double jeopardy' within the meaning of that phrase.

The National Law

Proceedings against Dr Woollard were instituted pursuant to the Health Practitioner Regulation National Law (WA) (National Law) contained in the Schedule to the National Law Act.
By s 6 of the National Law Act, the Tribunal is the 'responsible tribunal' for the purposes of the National Law.
Section 3(2)(a) of the National Law provides:
The objectives of the national registration and accreditation scheme are -
(a)to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered[.]
Section 4 of the National Law provides:
An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3.
Section 5 defines 'unsatisfactory professional performance' as:
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
Section 5 defines 'unprofessional conduct' as:
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.
Section 5 defines 'professional misconduct' as:
professional misconduct, of a registered health practitioner, includes -
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession. (emphasis added)
In very broad terms, pt 8 of the National Law deals with, amongst other things, the 'performance' and 'conduct' of practitioners by, relevantly:
(a)enabling the Board to investigate a practitioner by appointing an investigator who reports to the Board, after which the Board considers what further action (if any) to undertake with respect to the practitioner (div 8);
(b)enabling the Board itself directly to take certain action against a practitioner, including cautioning the practitioner, accepting an undertaking from the practitioner, and imposing conditions on the practitioner's registration (div 10);
(c)establishing and referring matters to a 'performance and professional standards panel' to consider and determine questions of 'performance' and 'conduct' by the practitioner other than professional misconduct. A 'performance and professional standards panel' may caution and reprimand the practitioner, but may not suspend registration. A 'performance and professional standards panel' may impose conditions on a practitioner's registration (div 11); and
(d)enabling a 'responsible tribunal' (in this case, the Tribunal) to deal with matters of 'professional misconduct', and other specified matters including where a panel established by the Board requiring that the matter be dealt with by the Tribunal (div 12).
Section 138 in pt 8 div 1 provides, in effect, that a 'notification' may be made, and proceedings may be taken, under pt 8 of the National Law against a person who was, but is no longer, registered as a practitioner.
By s 151 of the National Law, the Board may take no further action in relation to a notification if:
(a)the Board reasonably believes that the notification is frivolous, vexatious, misconceived or lacking in substance;
(b)given the amount of time that has elapsed since the matter the subject of the notification occurred, it is not practicable for the Board to investigate or otherwise deal with the notification;
(c)the person to whom the notification relates has not been, or is no longer, registered by the Board and it is not in the public interest for the Board to deal with it;
(d)the subject matter of the notification has already been dealt with adequately by the Board; or
(e)the subject matter of the notification is being dealt with, or has already been dealt with, adequately by another entity.
By s 151(2) a decision to take no further action in relation to a notification does not prevent the Board or an adjudication body from taking the notification into consideration at a later time as part of the pattern of conduct by the practitioner.
By s 151(3) and s 151(4), if the Board decides to take no further action in relation to a notification it must give written notice to the notifier and give reasons.
By s 193(1) of the National Law, the Board must refer a matter to the Tribunal if, amongst other things, the Board reasonably believes, based on a notification or for any other reason, that:
(a)the practitioner has behaved in a way that constitutes professional misconduct; or
(b)the practitioner's registration was improperly obtained because of, in effect, the provision of materially false or misleading information.
By s 196(1)(b) of the National Law, after hearing a matter, the Tribunal may decide, amongst other things, whether, in effect, the practitioner has engaged in unsatisfactory professional performance, engaged in unprofessional conduct, engaged in professional misconduct or improperly obtained registration through the provision of materially false or misleading information.
By s 196(2) of the National Law, the Tribunal's powers in that regard include the power to:
(a)caution or reprimand;
(b)impose a condition on registration;
(c)impose a fine up to $30,000;
(d)suspend registration for a specified period; and
(e)cancel the practitioner's registration.
By s 196(4) of the National Law, where the Tribunal decides to cancel a practitioner's registration, or where the practitioner does not hold registration, the Tribunal may also decide to:
(a)disqualify the practitioner from applying for registration for a specified period; or
(b)prohibit the practitioner from using a specified title or providing a specified health service.

The SAT Act

The National Law Act is an 'enabling Act' within the meaning of that term in s 3(1) of the SAT Act.
If there is any inconsistency between the SAT Act and an enabling Act, the enabling Act prevails: s 5 of the SAT Act.
In dealing with matters within its jurisdiction, the main objectives of the Tribunal are, amongst other things, to achieve the resolution of complaints or disputes fairly and according to the substantial merits of the case, and to act as speedily and with as little formality and technicality as is practicable, and to minimise the cost to the parties: s 9 of the SAT Act.
In disciplinary proceedings in the Tribunal against medical practitioners, the principal and ultimate issue will often be one of the practitioner's present fitness to practise,[129] although under the National Law proceedings may also be taken against a practitioner who is no longer registered: s 138 of the National Law. The observations in Health Care Complaints Commission v Do[130] are pertinent in this context:
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. (emphasis added)
[129] Herron v McGregor (1986) 6 NSWLR 246, 258.
[130] Health Care Complaints Commission v Do [2014] NSWCA 307 [35].
The power under s 47(2) of the SAT Act to dismiss proceedings in accordance with s 47(1) is exercisable only by a legally qualified member of the Tribunal: s 47(3) of the SAT Act.
By s 77 of the SAT Act, the Tribunal must give its reasons for a final decision, and the reasons must include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which the findings are based.
In this appeal, Dr Woollard submitted, with reference to Giudice v Legal Profession Complaints Committee,[131] that 'it is not appropriate to scrutinise the reasons of the Tribunal with a fine‑tooth comb and an eye keenly attuned to the perception of error'. Although that was a case involving a decision of the Tribunal from a coram including a judge, an observation of that nature is frequently applied where the decision‑maker lacks legal expertise.[132] The admonition should not be pressed too far in circumstances where the decision‑maker is a Supreme Court judge who is sitting alone and who has reserved and provided written reasons for the decision.
[131] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [52], [139].
[132] BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 [124] - [125]; Woollard v Medical Board of Australia (sitting as a Performance and Professional Standards Panel) [2016] WASCA 151 [53] ‑ [54]; Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132, 157.
Section 47 of the SAT Act provides:
Frivolous etc. proceedings, dismissal of etc.
(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.

Abuse of process

The judge held that the term 'abuse of process' within the meaning of s 47(1)(c) is used in the sense in which that term is understood in a superior civil court of record.[133] There was no challenge to that finding in this appeal. Although the point is not determinative of the outcome of this appeal, it cannot be accepted that this is a complete or accurate statement of the position. In its application to a tribunal in the position of the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, relevantly for present purposes, is essentially protective of the public in character. Further, given that the Tribunal may impose disciplinary orders on practitioners, the exercise of the power in this context will also be guided by considerations relevant to the stay of criminal proceedings in a superior court of record: Walton v Gardiner.[134]
[133] Primary decision [13], in which the authority for the proposition was said to be found in Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 [28] (sic [34]), [56].
[134] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 395. See also Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [8].
The cases are considered in more detail below but, by way of overview, the following observations are some of the principal ones which may be drawn from the cases for present purposes. The exercise of the power to dismiss or permanently stay proceedings should only be exercised in extreme or exceptional cases. The onus is on the person asserting abuse of process to prove it. It involves the party asserting abuse to establish that the controversy should be disposed of without a determination on the merits, and accordingly the onus is a heavy one. The categories of abuse of process are not closed. Abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. Thus, the court must be satisfied that the continuation of the proceedings would cause unacceptable injustice or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. A mere risk of unacceptable injustice or unfairness is insufficient.

While the explanation was provided in submissions rather than an affidavit, it was an explanation which the Tribunal (which is not bound by the rules of evidence) should have taken into account. It may be thought reasonable for the appellant only to make the serious allegations in the Inadequate Training Claim and False Representation Claim once it had obtained the evidence supporting the claims. But whatever view the Tribunal might have taken of the veracity of the explanation, it cannot reasonably be said that no explanation was offered for that delay.
Ground of appeal 1 contends that the Tribunal erred in law in proceeding on the basis that the entire period from 22 May 2012 was unexplained and unjustified. The appellant contends that this was contrary to the Tribunal's own findings of fact; that there was no or no probative evidence for that finding; and that the finding was otherwise not reasonably open on the evidence. For the above reasons, that ground of appeal is established.

Unreasonable delay capable of being established by the evidence

There was a period between the appellant's decision to refer the matter to the Tribunal, made on 15 January 2014, and the actual filing of the application on 19 December 2014. Recognising that it would take some time for the appellant to instruct its solicitors and prepare the relevant papers, a period of 11 months does appear to be longer than is reasonably required for that purpose. It was at least open for the Tribunal to adopt that view.
The appellant having taken that much time to institute the proceedings, it was also open to the Tribunal to regard the additional five months taken to notify the respondent of the proposed amendment as more than was reasonably required to formulate the final allegations. The appellant's explanation for the delay in the amendment was made only in submissions, and did not indicate when the appellant first became aware that the respondent had not undertaken his claimed training at Royal Perth Hospital.
There was, therefore, evidentiary material before the Tribunal capable of satisfying the Tribunal that there was some degree of unreasonable delay in the appellant's institution and prosecution of the proceedings. The Tribunal did not make any finding of fact as to the time in which the appellant ought to have reasonably formulated its allegations. However, the delay could not, in all the circumstances, reasonably be regarded as 'extraordinary' (as the Tribunal did at [220] of its reasons).

Prejudice

The only evidence of prejudice resulting from delay was contained in the respondent's affidavit of 7 October 2015. For the following reasons, that affidavit did not establish any substantial prejudice resulting from delay.

Loss of respondent's non-clinical records

The first aspect of prejudice on which the respondent relied was the loss of his non-clinical records relating to angioplasty procedures, which he retained for only 5 years after the procedures were performed.[268] However, those notes would have been destroyed well prior to the complaint to the appellant in May 2012, and so any prejudice resulting from the loss of those records could not have been caused by the appellant's delay. In any event, there was no evidence to show that the lost non‑clinical records would have been relevant to any matter at issue in the Tribunal proceedings.

Death of Dr O'Shea and lost documents

[268] Affidavit of Keith Victor Woollard sworn 7 October 2015, par 25.

The second aspect of prejudice on which the respondent relied concerned the death of his former colleague, Dr O'Shea, in March 2015.[269] The respondent deposed that, had the new issues been raised before Dr O'Shea's death, he would have instructed his lawyers to contact Dr O'Shea and request his books and records regarding the relevant procedures, and to obtain a witness statement from him. The respondent said that he was sure that Dr O'Shea would have confirmed the appellant's records to be accurate.[270]
[269] Affidavit of Keith Victor Woollard sworn 7 October 2015, par 3.
[270] Affidavit of Keith Victor Woollard sworn 7 October 2015, pars 22 and 23.
However, the accuracy of the appellant's records was not in dispute in the Tribunal proceedings. The appellant's case as to the number of angioplasty procedures which the respondent had actually performed was based on the respondent's clinical records.[271] As such, the appellant's case was based on the accuracy of the respondent's records.
[271] Paragraphs 15.6 and 15.7 of the appellant's amended grounds of application.
The respondent also relied on the reported destruction of Dr O'Shea's records after his death, and his belief that a complete set of Dr O'Shea's angioplasty files and records are no longer available.[272] However, there was nothing to show how those records would have materially added to the clinical records which the respondent had retained, or how the respondent's case was actually prejudiced by the loss of those records.

Conclusion as to prejudice from lost documents

[272] Affidavit of Keith Victor Woollard sworn 7 October 2015, par 24.

For the above reasons, the evidence before the Tribunal was not capable of establishing that delay by the appellant caused any prejudice relating to the loss of documents and records. Senior counsel for the appellant properly conceded this to be the case in her oral submissions in this appeal (appeal ts 85).

Death of Dr O'Shea and discussions with Dr O'Shea

The third aspect of prejudice on which the respondent relied concerned discussions he had with Dr O'Shea.
The respondent's affidavit indicated that, prior to the respondent ceasing to perform angioplasties, he had regular meetings with Dr O'Shea and 'we would have discussed' Patient B.[273] The respondent said that he could not recall the content of the discussions and does not know what, if anything, Dr O'Shea remembered about the discussions. The suggestion that anything which Dr O'Shea had to say about the discussions would have in any way assisted the respondent's case was entirely speculative. There was no basis for the Tribunal to conclude that evidence which Dr O'Shea might have given about discussions relating to Patient B would have been relevant to any issue which the Tribunal had to determine. This aspect of the respondent's affidavit does not establish that the absence of evidence of these discussions would have materially prejudiced the respondent's case. Nor does the affidavit establish that Dr O'Shea would have recalled the discussions when the complaint was made, so that delay by the appellant would have deprived the respondent of evidence of those discussions.
[273] Affidavit of Keith Victor Woollard sworn 7 October 2015, par 26.
The respondent's affidavit also indicated that, after he received the initial notification from the appellant in relation to Patient B, he told Dr O'Shea about it. The respondent deposed that Dr O'Shea expressed surprise and spoke to him in a supportive manner. The respondent said that Dr O'Shea 'left me with the impression that he would have given evidence to support the adequacy of my training and experience'.[274] However, it was common ground in this appeal that Dr O'Shea was not uniquely placed to give expert evidence as to what was an adequate level of training and experience, so the respondent has not lost the opportunity to adduce expert evidence about that issue. Indeed, Dr O'Shea's close association with, and consequent lack of independence from, the respondent would be likely to reduce the weight to be given to any expert evidence Dr O'Shea might have given in support of the respondent.
[274] Affidavit of Keith Victor Woollard sworn 7 October 2015, par 28.
That leaves the following paragraph of the respondent's affidavit as the only evidence of prejudice resulting from Dr O'Shea's death:[275]
Dr O'Shea and I also discussed the counting of angioplasty procedures. To the best of my recollection and belief, Dr O'Shea agreed with my approach that one stenosis could count as one procedure.
[275] Affidavit of Keith Victor Woollard sworn 7 October 2015, par 27.
The respondent relied on counting each stenosis performed at the same time as a separate procedure to explain the discrepancy which the appellant alleged existed between the respondent's records and what he had told the hospital. Apart from expressing an expert opinion as to the appropriate counting method (evidence which Dr O'Shea was not uniquely placed to give), there was only one way in which this aspect of Dr O'Shea's evidence could be relevant. A discussion with Dr O'Shea could have affected the respondent's subjective understanding of how procedures were counted. The fact that the discussion had taken place could be relevant to whether the respondent gave the information to the hospital knowing it was false, and for the purpose of misleading the hospital in an attempt to achieve accreditation, as the appellant alleged. In that manner, the fact of the conversation, as opposed to the truth of what was said, could be relevant to the issues the Tribunal had to determine.
However, the respondent was not deprived of the opportunity to adduce evidence of the fact and content of this discussion with Dr O'Shea. The respondent can give evidence of that discussion himself. The evidence which the respondent may have lost is not the evidence of the discussion, but Dr O'Shea's corroboration of the respondent's account of that discussion. Of course, it is also now the case that the respondent can give his account of that discussion without fear of contradiction by Dr O'Shea.
Even recognising prejudice in the form of loss of corroborating evidence requires a very charitable reading of this paragraph of the respondent's affidavit. That paragraph does not say when the discussion occurred. In particular, the paragraph does not say whether the discussion occurred prior to the respondent providing the impugned information to the hospital in October and December 2005. Nor does the paragraph depose that the respondent relied on what Dr O'Shea said when he provided that information to the hospital. However, even assuming those unstated matters in the respondent's favour, the evidence of prejudice was confined to the loss of corroborating evidence of Dr O'Shea as to the fact and content of a discussion about counting methods.

The Tribunal's findings

The Tribunal found that Dr O'Shea's evidence as to what he considered a procedure to be, and any discussion with the respondent, 'would have been very relevant to [the respondent's] defence and to the Tribunal's determination of [the respondent's] intent'.[276] It found that 'Dr O'Shea's evidence, which relates to [the respondent's] intention may have been critical to' the respondent's defence.[277] For the reasons noted above, this characterisation of the respondent's evidence grossly overstates the extent of the prejudice which it was capable of demonstrating.
[276] Primary decision [189].
[277] Primary decision [198].
The Tribunal also said:[278]
Plainly, [the respondent's] or Dr O'Shea's records would be relevant to [the respondent's] training, the number of procedures he conducted and to the allegation of fraud.
[278] Primary decision [209].
This may have been plain to the Tribunal, but I cannot see any reasonable basis for the conclusion in the material before the Tribunal. The Tribunal did not explain the way in which the lost records would be relevant. The material before the Tribunal did not establish that the non‑clinical records would have been relevant, or that their loss would result in material prejudice to the respondent's case.
The Tribunal's ultimate finding was that the death of Dr O'Shea and the loss of records constitute actual prejudice to the respondent in relation to the amended application.[279] Ground of appeal 2(c), which contends that this finding was not reasonably open on the evidence, is largely established. For the reasons I have explained, that finding was not reasonably open to the Tribunal, except to the extent that the evidentiary material indicated that the respondent had lost the opportunity to call Dr O'Shea to corroborate his account of their discussion referred to at [252] above. Even that limited degree of prejudice depends on a very charitable reading of the respondent's affidavit to conclude that evidence of the discussion would be relevant to the issues the Tribunal had to determine.
[279] Primary decision [210].
The Tribunal also observed that there were disputes about the extent to which the respondent had any involvement in assisting with angioplasty procedures in the 1980s. Noting that there were no records, the Tribunal said that '[o]ver 30 years later, it is now impossible to reach a conclusion in a fair manner'.[280] It is far from clear that this conclusion is correct, given that the respondent asserts a 'clear recollection' of the assistance he provided in the 1980s.[281] Difficulty in proof arising from the passage of time is more likely to prejudice the appellant's case, given the onus of proof which the appellant bears. However, regardless of the correctness of the Tribunal's observation, there is no basis for concluding that any prejudice which the respondent does suffer is a result of the appellant's delay. The challenges of establishing what occurred in the 1980s would have existed when the complaint was made in 2012, and the material before the Tribunal did not show that the extent of those challenges had materially increased since that time.
[280] Primary decision [203].
[281] Paragraph 25 of the respondent's witness statement in the Tribunal proceedings (GB 99).

Public Interest

The Tribunal found that there was 'no public interest' for the Inadequate Training Claim and the False Representation Claim being pursued against the respondent.[282]
[282] Primary decision [235].
In reaching that conclusion, the Tribunal referred to the fact that orders made by the Tribunal in other disciplinary proceedings 'ensure that [the respondent] will not carry out any angioplasty procedures until at least 12 June 2018'. The Tribunal said that the 'conduct complained of completely ceased prior to 12 December 2012'. The Tribunal said that it was difficult to see that there was any public interest in making further orders against the respondent in relation to carrying out angioplasty procedures when those orders would only replicate existing restrictions.[283]
[283] Primary decision [227].
However, the Inadequate Training Claim and the False Representation Claim raised matters going well beyond the respondent's competence to undertake angioplasty procedures. The allegations that the respondent was willing to undertake a procedure when he had not received the required training, and to lie to the hospital about the extent of his experience to allow that to occur, calls into question the respondent's fitness to practise medicine. The Tribunal recognised as much in relation to the False Representation Claim.[284]
[284] Primary decision [229].
The Tribunal also referred to the fact that the respondent had been in practice for many years and, other than the angioplasty procedures, nothing had come before the Tribunal or its predecessors in relation to his fitness to practise.[285] However, this does not provide a rational basis for saying that there is no public interest in the Tribunal dealing with an allegation calling into question the respondent's fitness to practise when it is made.
[285] Primary decision [230].
The Tribunal said that, given the appellant's delay in making the allegations, 'it is very difficult to accept any proposition from the [appellant] that there is a public interest in allowing the matters raised in the [appellant's] amended application to proceed'.[286] However, public interest is not defined by the appellant's attitude to the matters raised by the application. The question of the existence of a public interest in resolving the merits of the allegations was a matter for the Tribunal's assessment.
[286] Primary decision [232].
The Tribunal also referred to a statement made by Patient B's widow in her 2012 complaint that:
Perhaps [the respondent] should not be attempting this procedure, or if so, perhaps he should be under supervision.
The Tribunal said that orders already made in other proceedings ensured that the respondent would not be allowed to perform angioplasty procedures until at least 12 June 2018, and that the 'Widow's request has been met'.[287]
[287] Primary decision [234].
Reading the 2012 complaint as a whole, it is far from clear that Patient B's widow would have been satisfied with the outcome. However, the satisfaction of the complainant, or lack thereof, with an outcome was not the point of the proceedings. The disciplinary proceedings were concerned with the protection of the public and the maintenance of professional standards, not meeting a request of a particular complainant. The relevant objective of the National Law is:[288]
To provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered;
[288] Section 3(2)(a) of the National Law.
As Meagher JA, with whom other members of the court agreed, said in Health Care Complaints Commission v Do:[289]
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
[289] Health Care Complaints Commission v Do [2014] NSWCA 307 [35].
In all the circumstances, it was not reasonably open to the Tribunal to find that there was no public interest in the Inadequate Training Claim and the False Representation Claim being pursued against the respondent. Ground of appeal 5(d), which asserts that error of law, is established.

The Tribunal's abuse of process conclusion was not open

In my view, the Tribunal's finding that the continuation of the relevant part of the proceedings would be 'so unfairly and unjustifiably oppressive as to constitute an abuse of process' was not open on the evidentiary material before the Tribunal. At its highest, the evidentiary material established some level of unreasonable delay by the appellant after January 2014 in instituting and prosecuting the Tribunal proceedings, and limited prejudice (in the form of loss of corroborating evidence by Dr O'Shea) resulting from that delay. That evidence was incapable of establishing this to be one of the exceptional or extreme cases in which continuation of that part of the proceedings would (as opposed to could) be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The Tribunal's conclusion was manifestly unreasonable, in the sense that no reasonable tribunal correctly applying the legal test could have made that finding on the evidentiary material before the Tribunal.
The appellant has established ground of appeal 6, which contends that it was not reasonably open for the Tribunal to conclude that the maintenance of the two allegations in question was an abuse of process.

Orders

Section 105(9)(a) and (b) of the State Administrative Tribunal Act empower this court to vary or set aside the Tribunal's decision, and to 'make any decision that the Tribunal could have made in the proceeding'.

In Osland v Secretary, Department of Justice (No 2),[290] French CJ, Gummow and Bell JJ recognised that an equivalent provision to s 105(9)(b) authorised an appellate court to make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. The High Court also recognised that the power is wide enough to allow the court to make substitutive orders in other circumstances, but that its powers must be exercised having regard to the limited nature of the appeal (on questions of law).
[290] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [20], referred to in Commissioner for Consumer Protection v Carey [2014] WASCA 7 [68], [166] and Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [74]. See also Osland [73] ‑ [76] per Hayne and Kiefel JJ.
It is also appropriate for this court to substitute the decision which the Tribunal should have made when the evidentiary material before the Tribunal reasonably leaves open only one conclusion. Doing so is consistent with the limited nature of the appeal on a question of law, where the court may determine whether it was open to the Tribunal to make the orders which it did on the material before it.
I agree with Newnes and Murphy JJA that there is no merit in the respondent's submission that leave to appeal should be refused by reason of the appellant's late compliance with procedural directions made in the Tribunal.
I agree with the orders proposed by the Joint Reasons.

Details

AGLC: Medical Board of Australia v Woollard [2017] WASCA 64
Case: [2017] WASCA 64
Decision Date: 11 APRIL 2017

CaseChat Overview and Summary

In the case of Medical Board of Australia v Woollard, the Medical Board of Australia brought proceedings against Dr. Woollard, a cardiologist, in the Queensland Civil and Administrative Tribunal. The Board alleged that Dr. Woollard's conduct in performing angioplasty procedures constituted professional misconduct warranting disciplinary action. The Board's case was predicated on a series of complaints regarding Dr. Woollard's practice, which were lodged by former patients and colleagues. The State Administrative Tribunal found in favour of Dr. Woollard and dismissed the Board's claims, prompting the Board's appeal to the Supreme Court of Queensland.

The central legal issues before the court were whether there was sufficient evidence to support findings of abuse of process, unreasonable delay in bringing the complaints, and prejudice to Dr. Woollard due to the delay. Additionally, the court considered whether the proceedings amounted to double jeopardy, the public interest in the matter, and the appropriate standard of proof in professional disciplinary proceedings. The court also examined the applicability of the Health Practitioner Regulation National Law in determining the fitness to practise of health professionals.

The court found that the evidence did not support findings of abuse of process, unreasonable delay, or prejudice to Dr. Woollard. The court held that the complaints were not brought with a view to harassing or intimidating the respondent but were instead genuine concerns about his professional conduct. The court also concluded that the complaints did not result in unreasonable delay and did not prejudice Dr. Woollard's ability to defend himself. The court further found that the proceedings did not constitute double jeopardy as they were not based on the same facts or legal principles as previous complaints. The court emphasised the importance of maintaining public confidence in the medical profession and the need for a high standard of proof in disciplinary matters. The appeal was dismissed, and the findings of the State Administrative Tribunal were upheld.

No additional orders were made by the court.

Orders