MEDICAL BOARD OF WESTERN AUSTRALIA and VAN DORT
[2006] WASAT 214 (S)
•11 AUGUST 2006
MEDICAL BOARD OF WESTERN AUSTRALIA and VAN DORT [2006] WASAT 214 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 214 (S) | |
| MEDICAL ACT 1894 (WA) | |||
| Case No: | VR:358/2005 | 5 JULY 2006 | |
| Coram: | HON R VIOL (SUPPLEMENTARY DEPUTY PRESIDENT) DR R CLARNETTE (SENIOR SESSIONAL MEMBER) MS J STANTON (SENIOR SESSIONAL MEMBER) DR P WINTERTON (SENIOR SESSIONAL MEMBER) | 11/08/06 | |
| 22/09/06 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | The application for costs of the practitioner is dismissed. Each party shall bear own costs. | ||
| B | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF WESTERN AUSTRALIA NORMAN JOSEPH VAN DORT Rick Cullen |
Catchwords: | Vocational regulation Medical practitioner costs Application by vocational regulatory body dismissed Whether practitioner entitled to costs Comments on procedure in cases of delay in making of complaint |
Legislation: | Medical Act 1894 (WA), s 13 State Administrative Tribunal Act 2004 (WA), s 87, s 87(2) |
Case References: | Medical Board of Western Australia and Roberman [2005] WASAT 81 Motor Vehicle Industry Board and Dawson, reported in [2006] WASAT 8. Nil |
Orders | The application for costs is dismissed,Each party is to bear their own costs |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL ACT 1894 (WA) CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and VAN DORT [2006] WASAT 214 (S) MEMBER : HON R VIOL (SUPPLEMENTARY DEPUTY PRESIDENT)
- DR R CLARNETTE (SENIOR SESSIONAL MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
DR P WINTERTON (SENIOR SESSIONAL MEMBER)
DECISION : 22 SEPTEMBER 2006 FILE NO/S : VR 358 of 2005 BETWEEN : MEDICAL BOARD OF WESTERN AUSTRALIA
- Applicant
AND
NORMAN JOSEPH VAN DORT
Respondent
(Page 2)
Catchwords:
Vocational regulation - Medical practitioner - costs - Application by vocational regulatory body dismissed - Whether practitioner entitled to costs - Comments on procedure in cases of delay in making of complaint
Legislation:
Medical Act 1894 (WA), s 13
State Administrative Tribunal Act 2004 (WA), s 87, s 87(2)
Result:
The application for costs of the practitioner is dismissed. Each party shall bear own costs.
Category: B
Representation:
Counsel:
Applicant : Ms F Vernon
Respondent : Ms H Nore
Solicitors:
Applicant : Tottle Partners
Respondent : Cullen Babington Hughes
Case(s) referred to in decision(s):
Medical Board of Western Australia and Roberman [2005] WASAT 81
Motor Vehicle Industry Board and Dawson, reported in [2006] WASAT 8.
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's reasons
1 In approximately 2003 a patient (the patient) made a complaint to the Medical Board (the Board) concerning the respondent's conduct towards her during three attendances between 1986 and 1992 on the respondent who was the applicant's general practitioner.
2 The Board filed an application before this Tribunal, alleging three incidents of "infamous and/or improper conduct in a professional respect" pursuant to s 13 of the Medical Act 1894 (WA).
3 The respondent denied the allegations.
4 On 11 August 2006 the Tribunal dismissed the complaints against the respondent.
5 Submissions as to whether the Board should be ordered to pay the respondent's costs were heard by the Tribunal on 17 August 2006.
6 The Tribunal refused to order the Board to pay the respondent's costs and required each party to bear their own costs.
Contentions and findings
7 As a consequence of the dismissal of the complaints against the respondent, his counsel has sought an order for costs against the Board pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) ( the SAT Act). It is not necessary for the Tribunal to repeat the provisions of that section as they are well known. In particular, s 87(2) grants the Tribunal a broad discretion to grant costs.
8 The Tribunal has previously considered the circumstances in which it may award costs in a case such as this. The first case was the Medical Board of Western Australia and Roberman [2005] WASAT 81. In that case the Tribunal, of which Deputy President Chaney was the Presiding Member, noted that:
"While the question of the award of costs as a matter of discretion in every case where a regulatory authority successfully brings a complaint of misconduct, this will usually provide a strong case for an exercise of a cost discretion in favour of the regulatory body."
(Page 4)
9 In view of the particular findings by the Tribunal in that case, the Tribunal required the practitioner to pay one-third of the costs of the Board.
10 The matter was taken further in the Motor Vehicle Industry Board and Dawson, reported in [2006] WASAT 8. The Tribunal, of which the President, Justice Barker, was the Presiding Member, said at paragraph 47:
"The decision in the Roberman case does not support the view, however, that an affected person in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful. If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest, even though 'success' cannot be guaranteed.
Consequently, the Tribunal considers that ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful."
11 In the present case the applicant has contended that an order for costs should be made on the basis that the application lacked any reasonable basis. It was not contended, and the Tribunal is satisfied, that the application was not made in good faith. Counsel for the applicant has pointed to a number of matters, including the delay in making of the complaint, the suggestion that the evidence was stale and unreliable, that the Board found in any event that the conduct was not improper, that it was not in the public interest because the practitioner was no longer practising as a medical practitioner.
12 On the other hand, counsel for the Board submitted that the Board had no reason to doubt the veracity of the complainant and that notwithstanding the delay in the making of a complaint, the Board did have a reasonable basis for proceeding with the matter.
13 As to these submissions, the Tribunal is of the view that the fact that a complaint may be stale does not necessarily and automatically mean that a matter should not be brought before the Tribunal. Further, the Tribunal considers that just because a medical practitioner is not at the time of the
(Page 5)
- making of complaint practising his or her profession does not mean that a complaint should not be brought.
14 Having considered the circumstances and history of this matter, the Tribunal is unable to conclude that the Board's application lacked any reasonable basis, remembering that often that question is considered in retrospect, with the benefit of hindsight and having heard the evidence in detail. In this case the Board had received a complaint, albeit late, from a patient who, at all times, insisted that her version was correct. Further, what is reasonable often depends on the particular circumstances of the matter.
15 Therefore, in this case the Tribunal is not prepared to make an order that the Board should pay the practitioner's costs and orders that each party should bear its own costs.
16 Having come to this conclusion, however, the Tribunal feels that it is timely to remind the Board that in cases of undue and/or lengthy delay in the making of complaint, it should very carefully scrutinise the available evidence, looking for, if possible, some independent corroboration of the complaint. In the present case, for example, the acceptance of the letter from the HIC on its face value, without any further inquiry, was, in the Tribunal's view, unfortunate. Further, once the patient notes were available to it, the Board should have taken further instructions at an early time from the patient, at least to properly determine the dates of the alleged acts of misconduct.
17 Finally, the Tribunal reminds the Board that generally, in making a decision whether to proceed against a practitioner by filing an application in the Tribunal, the merits of such application must be very carefully considered up to and including the time of the hearing, it not being an appropriate basis to file an application on its face value and leave the matter for the Tribunal to decide.
Orders
1. The application for costs is dismissed
2. Each party is to bear their own costs
(Page 6)
- I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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HON R VIOL, SUPPLEMENTARY DEPUTY PRESIDENT
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