MEDICAL BOARD OF WESTERN AUSTRALIA and L - [2010] WASAT 71

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: MEDICAL PRACTITIONERS ACT 2008 (WA)

CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and L [2010] WASAT 71

MEMBER: JUDGE J PRITCHARD (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)
DR R CLARNETTE (SENIOR SESSIONAL MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)

HEARD: 15 FEBRUARY 2010

DELIVERED : 21 MAY 2010

FILE NO/S: VR 155 of 2009

BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
L
Respondent

Catchwords:

Medical practitioner - Vocational regulation - Application to strike out proceedings - Abuse of process - Impairment - Issue estoppel

Legislation:

Medical Act 1894 (WA), s 11(1)(a), s 11(1)(b), s 11AA(a), s 11AA(b), s 13(9)(a), s 13(9a)
Medical Practitioners Act 2008 (WA), s 3, s 4, s 11(c), s 78, s 78(b), s 83(3), s 83(4), s 100(1), s 100(2), s 102(3), s 103, s 117, Pt 6
State Administrative Tribunals Act 2004 (WA), s 9(b), s 32(2), s 32(2)(b), s 47, s 47(1)(c), s 47(2), s 61, s 62, s 62(1)(c), s 62(3)

Result:

The respondent's application to strike out the proceedings is dismissed

Category: B

Representation:

Counsel:

Applicant: Ms L Black
Respondent: Mr P Tottle

Solicitors:

Applicant: Bradford and Co
Respondent: Tottle Partners

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

Ainslie v Ainslie (1927) 39 CLR 381
Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Blair v Curran (Adams's Will) (1939) 62 CLR 464
Brunswick NL v Blossomtree Pty Ltd (1992) 7 WAR 226
Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 2) [1967] 1 AC 853
Commonwealth v Sciacca (1988) 17 FCR 476
Kuligowski v Metrobus (2004) 220 CLR 363
McKechnie v Campbell (1996) 17 WAR 62
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Mustac v Medical Board of Western Australia [2007] WASCA 128
Packer v Meagher [1984] 3 NSWLR 486
Papua New Guinea, Administration of the Territory of v Daera Guba (1973) 130 CLR 353
Ramsay v Pigram (1968) 118 CLR 271
Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Medical Board of Western Australia alleged to the Tribunal that an impairment matter existed in relation to a medical practitioner, Dr L, on the basis that Dr L was suffering from an impairment to such an extent that his ability to practise medicine was, or was likely to be, affected adversely (see s 78(b) of the Medical Practitioners Act 2008 (WA)).
Dr L made an application to strike out these proceedings on the basis that they constituted an abuse of process, contrary to s 47(1)(c) of the State Administrative Tribunal Act 2004 (WA). The strike out application was brought on two grounds. First, Dr L submitted that the Board sought to rely upon a medical report prepared by Dr Hall, in contravention of an agreement between the Board and Dr L as to the use which would be made of that report. Secondly, Dr L submitted that the proceedings were an attempt to relitigate issues that had been determined by the Board in a 2006 decision, and that an issue estoppel arose in relation to those issues.
The Tribunal was not persuaded that the proceedings constituted an abuse of process. In relation to the first ground to strike out the proceedings, the Tribunal found that it could not be satisfied that an express or implied agreement existed between the Board and Dr L to limit the use of Dr Hall's report, and that even if the factual basis for the submission could be made out, it was unclear how this could render the proceedings an abuse of process. In relation to the second ground in Dr L's application, the Tribunal found that there was no substance to Dr L's submission that an issue estoppel arose in relation to the proceedings, having regard to the information available to the Tribunal concerning the decision of the Board in 2006. The Tribunal found that the issue the Board was required to consider in its 2006 decision, and the issues arising for determination in the impairment proceedings, were not the same.
Having found that Dr L had not established that the impairment proceedings constituted an abuse of the Tribunal's process, the Tribunal dismissed Dr L's application to strike out those proceedings.

Introduction

The Medical Board has alleged to the Tribunal, pursuant to s 100(2) of the Medical Practitioners Act 2008 (WA) (MP Act), that an impairment matter exists in relation to Dr L. In these reasons, we refer to the present proceedings as the impairment proceedings.
An 'impairment' is defined in s 4 of the MP Act to mean a mental disability, an injury, or a physical illness. Subsection 100(2) of the MP Act permits the Board to make an allegation to the Tribunal about a complaint relating to an 'impairment matter'. An 'impairment matter' is defined to include 'that a person suffers from an impairment to such an extent that the ability of the person to practise medicine is, or is likely to be, affected adversely': s 78(b) of the MP Act. In the present case the Board contends that Dr L is suffering from an impairment which is sufficiently serious to warrant suspension or cancellation of his registration (the alleged impairment).
The alleged impairment is referred to in a report prepared by Dr Mark Hall dated 24 July 2009 which is annexed to the affidavit of Sharon Lee Gaby, sworn 9 February 2010, which was filed in the impairment proceedings. Amongst other things, Dr Hall described Dr L as 'alexithymic in his presentation' and he concluded that '[while] Dr L does not suffer from a major mental illness … he does exhibit features consistent with a DSMIVTR diagnosis of Frotteurism'. Dr Hall was of the view that 'neither Dr L's alexithymia or frotteurism, in and of themselves, have a direct impact on his ability to practice medicine in terms of assessment, diagnosis and treatment … [but] if unmanaged, there is a moderate to high risk that Dr L would engage in further sexually inappropriate behaviour in the course of his work as a medical practitioner, thus limiting his ability to safely manage the doctorpatient relationship'.
On 19 May 2010, Deputy President Judge Pritchard made an order pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) prohibiting the publication of Dr L's name. In view of that order we do not refer to Dr L's name in these reasons.

Grounds for the strike out application

Dr L now applies to strike out the impairment proceedings pursuant to s 47 of the SAT Act.
Counsel for Dr L indicated that the strike out application was brought on the basis that the impairment proceedings constitute an abuse of process, contrary to s 47(1)(c) of the SAT Act. The precise basis for the application was not entirely clear but we understood that the application was advanced on two broad grounds.
First, counsel for Dr L submitted that the Board's reliance on Dr Hall's report in the impairment proceedings would give rise to an abuse of process, because use of the report in the impairment proceedings would be a use for a purpose different from the purpose for which the report was prepared, and on the basis of which Dr L agreed to be examined by Dr Hall. In other words Dr L submitted that the Board now seeks to rely on Dr Hall's report in contravention of an agreement as to the use which would be made of the report.
Secondly, and in the alternative, it was submitted that the impairment proceedings would constitute an attempt to relitigate issues which were said to have been determined by the Board in a decision it made in 2006 in relation to Dr L's ability to practise (the 2006 Board decision). It was submitted that the relitigation of those issues would come about because Dr Hall's report and diagnosis were based on previous conduct by Dr L which was considered by the Board in the 2006 Board decision. It was submitted that an issue estoppel arises in relation to those issues. Counsel also described the argument as being that the Board was 'functus officio' in relation to those issues, and could not seek to deal with them again through the impairment proceedings.

The issues

These reasons for decision deal with the following issues:
1.Factual background to the impairment proceedings;
2.Abuse of process as a basis for striking out proceedings in the Tribunal;
3.Alleged abuse of process arising from the use of Dr Hall's report in the impairment proceedings;
4.Principles in relation to estoppel.
5.Alleged abuse of process arising from issue estoppel arguments in relation to the 2006 Board decision.

Factual background to the impairment proceedings

In separate proceedings in August, November and December 2002, the Board found Dr L guilty of improper conduct in a professional respect as a result of various incidents. It is not necessary for present purposes to set out the details of those incidents.
Following those findings, the Board suspended Dr L from the register.
In 2006, Dr L applied for the restoration of his name to the register. In July 2006, the Board made the 2006 Board decision, in which it ordered that Dr L's name be restored to the register upon conditions, and upon his giving an undertaking in relation to certain matters. Amongst other things, Dr L undertook that he would regularly see a psychiatrist approved by the Board for a period of 2 years from the date of his reregistration, that reports from that psychiatrist would be provided to the Board on a regular basis, and that Dr L would be of good behaviour for a period of 5 years from his reregistration.
We were advised that the Board did not publish reasons for the 2006 Board decision. However, the Board made orders setting out the 2006 Board decision and a copy of those orders was made available to us (the 2006 orders). We also had before us a copy of the undertaking given by Dr L to the Board on 14 July 2006.
There was very little other information before us in relation to the 2006 Board decision. It appears from the 2006 orders that the 2006 Board decision followed an application by Dr L under s 13(9)(a) of the Medical Act 1894 (WA) (Medical Act) to have his name restored to the register. Paragraph 13(9)(a) permitted a person whose name had been erased from the register to apply to the Board for the restoration of his or her name to the register.
The Board's counsel submitted that the Board met on 9 March 2006 for the purposes of determining whether Dr L should be reregistered. Counsel for the Board submitted that this meeting resembled a hearing. Annexed to the affidavit of Sharon Lee Gaby sworn 9 February 2010 was a copy of some transcript of the evidence given by Dr L at that hearing. It is clear from that transcript that Dr L was represented by counsel, gave evidence and was cross examined by counsel assisting the Board. However, the transcript which was before us was confined to the evidence of Dr L and did not extend to any other part of that hearing.
In September 2009 the Board commenced disciplinary proceedings in the Tribunal against Dr L pursuant to the Medical Act. Those proceedings arose from an incident which occurred at a regional hospital in early 2008 (the alleged 2008 incident). The alleged 2008 incident occurred when Dr L was still subject to his undertaking to the Board to be of good behaviour.
Following its receipt of a complaint against Dr L in respect of the alleged 2008 incident, the Board requested that Dr L agree to be examined and assessed by Dr Hall. Dr L agreed to do so.

Abuse of process as a basis for striking out proceedings in the Tribunal

Section 47 of the Act expressly permits the Tribunal to strike out a proceeding if it believes that the proceeding is an abuse of process. Counsel for Dr L did not refer us to any authority in the Tribunal in which the power in s 47 has been exercised on the basis that a proceeding constitutes an abuse of process. However, we note that s 47 has been viewed as analogous to the power of courts to summarily dismiss a proceeding. The principles applicable to the exercise of that power have been considered applicable to the exercise of the power in s 47: Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [8].
The power to dismiss a proceeding for abuse of process enables a court to ensure that its processes are not abused by litigation that is brought for a purpose which does not fall within the range of purposes for which the court's processes exist: McKechnie v Campbell (1996) 17 WAR 62 (McKechnie) at 74 (Owen J). A proceeding will constitute an abuse of the process of a court when it is used to exert pressure to effect an object not within the scope of the process, or where it is used for a purpose other than that for which the proceedings are properly designed, or where the plaintiff is seeking a collateral advantage beyond what the law offers: Packer v Meagher [1984] 3 NSWLR 486 (Packer v Meagher) at 492 (Hunt J), adopted with approval in Brunswick NL v Blossomtree Pty Ltd (1992) 7 WAR 226 at 234 (Franklyn J, Malcolm CJ and Rowland J agreeing).
The power to strike out in s 47(2) of the SAT Act is clearly a discretionary one, and it is one which has been exercised infrequently by the Tribunal. Given the informality of the Tribunal's proceedings and the fact that it is not to have regard to technicalities and legal forms (s 32(2) of the SAT Act), that is not surprising when the allegation is that the proceedings lack substance. However, in a case where a proceeding was shown to constitute an abuse of the Tribunal's processes, a question may arise as to whether such circumspection in the exercise of the power to strike out would be appropriate. It has been suggested that if the factual and legal basis for an abuse of a court's process is made out, the court has a duty, and not merely a discretion, to intervene: McKechnie at 75 (Owen J). However, in the present case, it is unnecessary to resolve this issue because we are not persuaded that the impairment proceedings constitute an abuse of the process of the Tribunal.

Alleged abuse of process arising from the use of Dr Hall's report in the impairment proceedings

In an affidavit sworn by Dr L on 18 August 2009 (which was filed in the Tribunal in disciplinary proceedings commenced in 2009, which were later discontinued, but which was put before us in the strike out application) Dr L stated that he agreed to undergo an assessment by Dr Hall for a particular purpose, namely to initiate a discussion (with the Board) to resolve the alleged 2008 incident. Counsel for Dr L submitted that the Board now sought to use Dr Hall's report for a quite different purpose, namely as the basis for bringing the impairment proceedings. Counsel for Dr L submitted that as a result the impairment proceedings constituted an abuse of the process of the Tribunal.
That submission fails, for two reasons. First, even assuming that the factual basis for the submission could be made out, it is far from clear why the use of Dr Hall's report for the purpose of the impairment proceedings would render those proceedings an abuse of the process of the Tribunal. There is nothing to suggest that the impairment proceedings are being brought other than for the purpose for which they were intended under the MP Act, namely to permit the Tribunal to determine whether Dr L suffers from an impairment to such an extent that his practise of medicine would be adversely affected, and if so, to determine what action should be taken. On the information available to the Tribunal, it cannot be said that the impairment proceedings can be characterised in any of the ways described by Hunt J in Packer v Meagher as constituting an abuse of process.
In any event, however, the factual basis for the submission was not made out. In his affidavit sworn on 18 August 2009, Dr L referred to his own reason for agreeing to submit to a review by Dr Hall, but that does not establish that there existed an agreement between the Board and Dr L concerning the purpose for which the Board would use any report from Dr Hall.
Further, the correspondence which passed between the parties does not establish the existence of any such express agreement either. Annexed to the affidavit of Dr L sworn 18 August 2009 are copies of letters between the Board and Dr L's solicitors in which the Board's request that Dr L should be assessed by Dr Hall was made, and agreed to. There was no express reference in any of this correspondence to the purpose of Dr Hall's review being confined to use of his report by the Board to assist it to determine how to proceed in respect of the alleged 2008 incident.
Counsel for Dr L submitted that there was clearly an implied agreement that that would be the only purpose for which Dr Hall's report would be used. In our view, nothing in the correspondence before us supports the conclusion that there was an implied agreement that Dr Hall's report would be used by the Board solely to assist it to determine how to proceed in respect of the alleged 2008 incident.
By letter dated 5 November 2008 (Annexure LEL6 to Dr L's affidavit sworn 18 August 2009) Ms Pamela Malcolm, the CEO/Registrar of the Board, wrote to Dr L's solicitor and advised that 'in the interests of ensuring public safety' (in view of the alleged 2008 incident) the Board would consider a proposal for conditions on Dr L's practice of medicine. Ms Malcolm advised that one of the conditions that the Board may consider appropriate was that Dr L attend Dr Hall for psychiatric assessment and review within 60 days of giving the undertaking.
There was some disagreement about the conditions proposed by the Board, but in a letter to the Board dated 27 November 2008 (Annexure LEL9 to Dr L's affidavit sworn 18 August 2009) Dr L's solicitors advised that 'our client is prepared to undertake to make himself available over the next 2 years at not more frequent than 6 monthly intervals, to a psychiatrist of the Board's choice for the purpose of the Board satisfying itself and continuing to monitor our client in view of its duty to the public'.
The Board's solicitors responded to this correspondence by letter dated 9 December 2008 (Annexure LEL10 to Dr L's affidavit sworn 18 August 2009), noting that Dr L was prepared to give an undertaking which would involve (amongst other things) a 6 monthly review by a Board appointed psychiatrist. (It was proposed that that psychiatrist would be Dr Hall.)
In a letter dated 20 January 2009 (Annexure LEL11 to Dr L's affidavit sworn 18 August 2009) Dr L's solicitor advised the Board's solicitors that both the form and content of the undertaking proposed by the Board were unacceptable to Dr L, but that he was willing to attend a psychiatrist of the Board's choice (whether or not that was Dr Hall).
By letter dated 24 February 2009 (Annexure LEL12 to Dr L's affidavit sworn 18 August 2009) the Board's solicitors wrote to Dr L's solicitors to advise that 'whatever the position regarding the giving of a voluntary undertaking, the Board would like for your client to be assessed by Dr Mark Hall, and to receive a report from him in relation to the assessments', and enclosed a consent for Dr L's signature, permitting the release to the Board of information in relation to Dr L's consultations with Dr Hall.
Nothing in this correspondence provides any basis for implying the existence of an agreement that the Board would use any report from Dr Hall solely for the purpose of determining how to proceed in relation to the alleged 2008 incident.
Three other considerations also support the conclusion that no such agreement existed. First, if the sole purpose of Dr Hall's report was to be for use in determining what should be done in respect of the alleged 2008 incident, it might have been expected that that would be reflected in the letter sent by the Board to Dr Hall in which it requested his review of Dr L. It was not. When Ms Malcolm wrote to Dr Hall and requested that he review Dr L (Annexure PMM1 to the Affidavit of Pamela Malcolm sworn 17 August 2009 which was filed in the Tribunal in disciplinary proceedings in 2009 but which was made available to us on the strike out application) she set out the factual background, which included his history before the Board and the 2006 Board decision, as well as the alleged 2008 incident. She requested that Dr Hall conduct a full psychiatric assessment of Dr L, and that he then provide a report dealing with issues including whether Dr L was suffering from any psychiatric disorder or psychological condition which may impact upon his ability to interact appropriately with female patients, or patients generally, and if so, whether the extent of that disorder was such as to adversely affect his ability to practise medicine. The broad scope of the review requested is consistent with the conclusion that there was no implied agreement between the Board and Dr L limiting the use to which Dr Hall's report might be put.

Secondly, the objects of the MP Act and the Board's functions under that Act suggest that it would be, at the very least, highly unlikely that the Board would enter into any agreement that would preclude it from using a medical report about a practitioner for the purpose of dealing with an impairment matter if that report suggested that an impairment matter existed with respect to the practitioner.
The objects of the MP Act include regulating the practice of medicine by properly qualified and competent persons for the purpose of protecting consumers of medical services provided by medical practitioners in this State: s 3 of the MP Act. The Board's functions under the MP Act include performing functions in relation to impairment matters under Pt 6 of that Act: s 11(c) of the MP Act. Those functions include receiving complaints in relation to an impairment matter, and determining that impairment matters should be dealt with by the Board, even if no complaint about that impairment matter has been made, provided that the Board forms the opinion that cause exists to investigate whether an impairment matter exists: s 83(3) and s 83(4) of the MP Act. Information which suggests that an impairment matter exists in relation to a practitioner may come to the Board's attention in a number of ways: see, for example, s 100(1) of the MP Act. Once the Board decides to take action on a complaint in relation to an impairment matter, it must refer the complaint to the impairment review committee, or make an allegation about it to the Tribunal. If an impairment matter is established, the Board, or the Tribunal, may take a variety of steps. The purpose of the action which is permitted to be taken if an impairment matter exists is clearly the protection of consumers of medical services: see s 102(3) and s 103, and s 117 of the MP Act. Given the protective purpose which underlies the MP Act and the Board's functions under that Act, it seems to us to be highly unlikely that the Board would agree to limit its use of any information it received in relation to a medical practitioner in a way which might be inconsistent with the object of protecting consumers of medical services. We would not be willing to find such an agreement existed in the absence of clear evidence to that effect.
Thirdly, counsel for Dr L accepted that if Dr Hall's report had raised a new issue of concern in relation to Dr L's ability to practise medicine, the Board would be entitled to take action in respect of that matter. For the reasons set out below, we have concluded that Dr Hall's report did raise a new concern, namely the diagnosis that Dr L manifested features of the disorder frotteurism. Consequently there can be no objection from Dr L about the Board's commencement of the impairment proceedings, in reliance on that report.

Principles in relation to estoppel

We turn now to consider the abuse of process argument which was said to be based on principles of estoppel. It is convenient to commence by briefly outlining the relevant principles in relation to estoppel.
There are two types of estoppel: cause of action estoppel and issue estoppel. From the little which we were able to discern about the 2006 Board decision, particularly the statutory basis for that decision, it is clear that there was no common cause of action between the proceedings brought by Dr L for the restoration of his name to the register pursuant to s 13(9)(a) of the Medical Act and the impairment proceedings under the MP Act. In any event, we understood Dr L to rely on issue estoppel only.
The principle which underlies issue estoppel is that a judicial determination which directly involves an issue of fact or of law will dispose once and for all of that issue, and it cannot afterwards be raised between the same parties and their privies. However, the estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification for its conclusion: Blair v Curran (Adams's Will) (1939) 62 CLR 464 at 531 (Dixon J).
The principles in relation to issue estoppel were discussed by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363 (Kuligowski). The Court (at [21]) referred to the speech of Lord Guest in Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 2) [1967] 1 AC 853 at 935 in which his Lordship set out the requirements in order for issue estoppel to apply to a subsequent set of proceedings. Those requirements are:
(i)the same question has been decided;
(ii)the judicial decision which is said to create the estoppel was final; and
(iii)the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
An unresolved question is whether the principle of issue estoppel applies in tribunals such as this Tribunal. The question arises because on the one hand, the principle of issue estoppel is sometimes described as a rule of evidence and the rules of evidence do not apply in this Tribunal (see s 32(2) of the SAT Act): Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 359 (Fisher and Lockhart JJ). On the other hand, the principle of issue estoppel is also described as a rule of law, but even if that is so, it is arguable that the rule should not be applied in this Tribunal given that the Tribunal is to act with as little formality and technicality as possible: s 9(b) and s 32(2)(b) of the SAT Act. In Commonwealth v Sciacca (1988) 17 FCR 476 at 480 the Full Federal Court expressly left open the question whether issue estoppel could be raised in the Administrative Appeals Tribunal. In Mustac v Medical Board of Western Australia [2007] WASCA 128 at [55] Martin CJ (with whom Wheeler JA and Buss JA agreed) assumed 'without necessarily accepting' that the doctrine of issue estoppel applied in this Tribunal.
It is unnecessary for us to form a view in this case on the question whether issue estoppel applies in the Tribunal because we have reached the conclusion that even if it does, the requirements for issue estoppel to apply in relation to the impairment proceedings have not been established.

Alleged abuse of process arising from issue estoppel arguments in relation to the 2006 Board decision

Counsel for Dr L did not provide us with a copy of any documents filed by the parties to the 2006 Board decision and did not place before us any evidence in relation to the basis for Dr L's application, the issues which were determined by the 2006 Board decision, or any other information to support the conclusion that what was determined by the Board in the 2006 Board decision determines the issues raised by the impairment proceedings. In the absence of any material upon which we might reach that conclusion, this ground of the application to strike out the impairment proceedings must fail.
In any event, on the basis of the limited information we have been able to discern in relation to the application which was the subject of the 2006 Board decision, we are of the view that there is no substance to Dr L's submission that an issue estoppel arises in relation to the impairment proceedings, having regard to what was determined by the 2006 Board decision.
It is far from clear that the second requirement referred to in Kuligowski, namely that the earlier decision was a judicial decision which was final, is satisfied in this case. The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties. That is so even if the tribunal is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and even if it only has temporary authority to decide a matter ad hoc: Papua New Guinea, Administration of the Territory of v Daera Guba(1973) 130 CLR 353 at 453 (Gibbs J). However, even though the Board may be considered a body of this kind, it may be arguable whether the 2006 Board decision was a 'judicial decision', and whether the 2006 Board decision can properly be described as one which was 'final'.
The 2006 Order was an order which was open to revision or alteration. Under s 13(9a) of the Medical Act, where the Board orders the restoration to the Register of the name of a person pursuant to s 13(9a)(a), the Board may impose any conditions which it thinks necessary to impose in the public interest, which limit or otherwise qualify or affect the manner in or places at which that person may practise. We have already referred to the conditions imposed by the Board in the 2006 Order. Pursuant to s 13(9a) of the Medical Act, the Board was empowered 'from time to time either of its own motion or on application by the person [to] vary or revoke any condition so imposed'. During the term of the 2006 Order it therefore remained open to the Board to reconsider those conditions, or to Dr L to apply to vary or revoke those conditions.
In those cases where an order made pursuant to a judgment can later be altered, difficulties will arise in assessing the finality of the decision: Kuligowski at [25]. In Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285 at 297 98, Kitto, Menzies and Taylor JJ approved the approach taken by Isaacs J in Ainslie v Ainslie (1927) 39 CLR 381 which was 'to see whether or not the Legislature has by its enactment left the order entirely floating … as a determination enforceable only as expressly provided and in the course of that enforcement subject to revision, or whether the order has been given the effect of finality unless subsequently altered'. That passage was referred to with approval in Kuligowski at [25], where the Court held that a 'final' decision is one which is not of an interlocutory character, but which is completely effective unless and until rescinded, altered or amended.
These issues were not addressed in the submissions made on behalf of Dr L, and the submissions by counsel for the Board focussed on other deficiencies in the issue estoppel argument.
It is unnecessary for us to decide this issue because we have concluded that the first requirement for the application of issue estoppel, referred to in Kuligowski, is not satisfied in this case. In our view, it is clearly not the case that any or all of the issues before the Tribunal in the impairment proceedings were decided in the 2006 Board decision.
In Ramsay v Pigram (1968) 118 CLR 271 at 276 Barwick CJ explained that 'an estoppel is available to prevent the assertion [in the later proceedings] of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each … in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.'
The issues in the impairment proceedings are whether Dr L is suffering from an impairment, and if so, whether he suffers from that impairment to such an extent that his ability to practise medicine is, or is likely to be, affected adversely. The issues the Board was required to consider on Dr L's application for the restoration of his name to the register in 2006 included all of those issues which arose on applications for registration, with such adaptations as necessary given the application was for restoration to the register, rather than initial registration: s 13(9)(a) of the Medical Act. The Medical Act permitted the registration of a person as a medical practitioner if (amongst other things) that person had recognised medical qualifications, had completed a period of internship or supervised clinical practice (s 11(1)(a) and (b)) and if the Board was satisfied that the person was competent to practise medicine, in that he or she had sufficient physical and mental capacity, and skill, to practise medicine, and had sound English language skills for the practice of medicine (s 11AA(a) and (b)).
Counsel for Dr L submitted that in considering and, by implication, determining, that Dr L had sufficient mental capacity to practise medicine, the Board must necessarily have dealt with the issue of whether he suffered from an impairment to such an extent as to be likely to adversely affect his ability to practise medicine. We are unable to accept that argument, for four reasons.
First, on the face of the legislation, the identification of an impairment said to exist by virtue of a mental disability and the determination as to whether the practitioner suffers from it to such an extent as to adversely affect his ability to practise medicine (under the MP Act) are quite clearly not the same issues as the Board being satisfied that the practitioner has sufficient mental capacity to practise medicine (for the purposes of s 11AA(a) of the Medical Act). It is not immediately apparent, on the face of the legislation, that the Board necessarily would have considered the question of whether Dr L suffered from a mental disability to such an extent as to adversely impact on his ability to practise medicine in the course of its determination of whether he had the mental capacity to practise medicine.
Secondly, on the basis of the very limited information before us as to what legal or factual matters were considered by the Board and contributed to the orders made in the 2006 Order, it is not possible to say that the Board approached the question of Dr L's mental capacity by considering whether he suffered from a mental disability to such an extent as to adversely impact on his ability to practise medicine. The fact that the 2006 Orders permitted the restoration of his name to the register on conditions, including conditions that he see a psychiatrist on a regular basis, does not, of itself, necessitate that conclusion.
Thirdly, although we do not have any information to establish precisely what factual information the Board had before it in reaching the 2006 Board decision, or what factual findings it made in reaching that decision, what is clear is that Dr Hall's report refers to the factual material on which his opinion appears to have been based, which material postdated the 2006 Board decision. By way of example, in his report, Dr Hall referred to a variety of written sources of information which included medical reports and correspondence to the Board dated after July 2008. He also discussed Dr L's subjective account of the incidents leading to the disciplinary proceedings against him in 2002. Although those incidents occurred prior to the 2006 Board decision, Dr Hall relied upon Dr L's account of those incidents, which Dr L provided to Dr Hall during their discussions prior to the preparation of Dr Hall's report in July 2009. In addition, Dr Hall's report referred to the alleged 2008 incident, and the account given by Dr L of that incident in 2009. Accordingly, the factual material in Dr Hall's report, on which the Board seeks to rely in the impairment proceedings, cannot be described as material which was contrary to factual findings made by the Board in the 2006 Board decision, because Dr Hall's report includes material which did not exist in 2006.
Fourthly, the fact that the impairment proceedings raise different issues from those which were determined by the Board in the 2006 Board decision is confirmed by the fact that the diagnosis reached by Dr Hall (which we have set out above) appears to be different from previous diagnoses the Board had received concerning Dr L, prior to the 2006 Board decision. We had before us two medical reports in relation to Dr L, which were addressed to the Board, and which predated July 2006. Those reports were annexures to an affidavit sworn on 17 August 2009 by Ms Pamela Malcolm, the Registrar of the Board. (That affidavit was filed in the proceedings commenced in the Tribunal against Dr L in 2009 and subsequently discontinued, but a copy of that affidavit was provided to us on the hearing of the strike out application.) Neither of those reports suggests that Dr L manifested features consistent with frotteurism. At the conclusion of the hearing, counsel for Dr L requested the opportunity to provide a further submission indicating which previous medical reports in relation to Dr L had referred to the diagnosis of frotteurism. Counsel ultimately did not file any such submission. There was no information before us to suggest that prior to the 2006 Board decision, the Board had received a medical report suggesting that Dr L was suffering from frotteurism.
It is appropriate to mention, briefly, what we understood was an alternative argument advanced by counsel for Dr L as a basis for the alleged abuse of process, which was described as an argument that the Board is functus officio. We understood counsel to submit that this was part of the estoppel argument which she advanced, although it was far from clear how the submission related to the estoppel argument. We understood counsel's submission, in effect, to be that the Board had no power to commence the impairment proceedings based on Dr Hall's diagnosis, because Dr Hall's diagnosis was effectively based on incidents prior to the 2006 Board decision, and the Board had already taken action in relation to those incidents. Counsel's submission was that it was clear from Dr Hall's report that even if there had been no reference to the alleged 2008 incident in Dr Hall's report, the same diagnosis would have been reached by Dr Hall based on the other material which predated the 2006 Board decision. The submission was misconceived from both a factual and legal perspective.
Counsel's submission invited us to speculate on what aspects of the material referred to by Dr Hall constitute the true basis for his diagnosis. On the face of his report, all of the material to which he refers appears to have been relied upon to reach his conclusions. In the absence of evidence, and in particular of cross examination of Dr Hall, it would be entirely inappropriate for us to speculate to the contrary.
In addition, in bringing the impairment proceedings the Board was acting pursuant to a power quite different from that on which it relied in making the 2006 Board decision. The Board concluded that the information in Dr Hall's report supported the conclusion that Dr L was (as at July 2009) suffering from an impairment. Once it formed the view that an impairment matter existed in relation to Dr L it was open to the Board to deal with that matter as if it were the subject of a complaint: s 83(3) of the MP Act. In contrast to s 13(9a) of the Medical Act, s 83(3) of the Act constituted a new and different source of power for the Board to act in respect of Dr L's fitness, in 2009, to practise as a medical practitioner. Furthermore, in bringing the impairment proceedings, the Board is no longer acting as a decision maker, as it did under s 13(9a) of the Medical Act, but rather its role is now confined to that of an applicant in proceedings before the Tribunal.

Conclusion

In our view, Dr L has not established that the impairment proceedings constitute an abuse of the processes of the Tribunal, and accordingly we dismiss his application to strike out the impairment proceedings.

Order

1.The respondent's application to strike out the proceedings is dismissed.
2.The proceeding is adjourned to a directions hearing to commence at 11.00 am on 1 June 2010 to consider further progress in the matter.

I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J PRITCHARD, DEPUTY PRESIDENT