Mustac v Medical Board of Western Australia
[2007] WASCA 128 (S)
•21 JUNE 2007
MUSTAC -v- MEDICAL BOARD OF WESTERN AUSTRALIA [2007] WASCA 128 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 128 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:93/2006 | 17 APRIL 2007 | |
| Coram: | MARTIN CJ WHEELER JA BUSS JA | 21/06/07 | |
| 16/08/07 | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for further orders dismissed The respondent pay the appellant's costs of the application for leave to appeal, the appeal and the notice of contention to be taxed | ||
| B | |||
| PDF Version |
| Parties: | ZELKO MUSTAC MEDICAL BOARD OF WESTERN AUSTRALIA |
Catchwords: | Application for further orders following appeal Costs Application for indemnity certificate under s 11(3)(b) of the Suitors Fund Act 1964 (WA) Costs Turn on own facts |
Legislation: | Medical Act 1894 (WA) Suitors Fund Act 1964 (WA), s 11(3)(b), s 13, s 13(3) |
Case References: | Jones v Dalcon Construction [2006] WASCA 205(S) Mustac v The Medical Board of Western Australia [2004] WASCA 156 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 77 ALR 609 Richards v Faulls [1971] WAR 129 Riverina Broadcasting (Holdings) Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 813 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MUSTAC -v- MEDICAL BOARD OF WESTERN AUSTRALIA [2007] WASCA 128 (S) CORAM : MARTIN CJ
- WHEELER JA
BUSS JA
DECISION : 16 AUGUST 2007 FILE NO/S : CACV 93 of 2006 BETWEEN : ZELKO MUSTAC
- Appellant
AND
MEDICAL BOARD OF WESTERN AUSTRALIA
Respondent
(Page 2)
ON APPEAL FROM:
For File No : CACV 93 of 2006
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUSTICE M L BARKER (PRESIDENT)
Citation : MEDICAL BOARD OF WESTERN AUSTRALIA and MUSTAC [2006] WASAT 178
File No : VR 93 of 2005, VR 227 of 2005
Catchwords:
Application for further orders following appeal
Costs - Application for indemnity certificate under s 11(3)(b) of the Suitors Fund Act 1964 (WA)
Costs - Turn on own facts
Legislation:
Medical Act 1894 (WA)
Suitors Fund Act 1964 (WA), s 11(3)(b), s 13, s 13(3)
Result:
Application for further orders dismissed
The respondent pay the appellant's costs of the application for leave to appeal, the appeal and the notice of contention to be taxed
Category: B
(Page 3)
Representation:
Counsel:
Appellant : Mr J R B Ley
Respondent : Mr C P Shanahan SC
Solicitors:
Appellant : Minter Ellison
Respondent : Liscia & Tavelli Legal Consultants Pty Ltd
Case(s) referred to in judgment(s):
Jones v Dalcon Construction [2006] WASCA 205(S)
Mustac v The Medical Board of Western Australia [2004] WASCA 156
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609
Richards v Faulls [1971] WAR 129
Riverina Broadcasting (Holdings) Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 813
(Page 4)
1 JUDGMENT OF THE COURT: In a reserved decision delivered on 21 June 2007 this Court granted Dr Mustac leave to appeal from the decision of the State Administrative Tribunal ("the Tribunal") on a preliminary issue of law, and allowed that appeal. The parties to the proceedings were able to agree as to the terms of a number of orders made as a consequence of that decision. In accordance with that agreement, an order was made on 21 June 2007 setting aside the decision of the Tribunal to the effect that it would apply, as a matter of comity, findings made by the Supreme Court in Mustac v The Medical Board of Western Australia [2004] WASCA 156 to decide issues of fact in the proceedings before the Tribunal and to the effect that Dr Mustac would not be permitted, on the hearing of the Tribunal proceedings, to call expert evidence from Dr W P Green.
2 However, the parties have been unable to agree as to further orders for which Dr Mustac contends, or as to the appropriate orders to be made in relation to the costs of the proceedings. Further, the respondent, The Medical Board of Western Australia ("the Board"), applies for a certificate of indemnity under the Suitors Fund Act 1964 (WA). This decision is concerned with those issues.
The additional orders sought by Dr Mustac
3 Dr Mustac presses for additional orders in the following terms:
"4. The findings by the Tribunal that:
4.1 if it were found that the appellant had purported to apply the Test of Memory Malingering (the TOMM) to patients A, B and C (the patients), by administering only Trial 1 of the TOMM (Trial 1) to the patients and not Trial 2 of the TOMM (Trial 2), the appellant would have failed to properly apply the TOMM to the patients as required by the TOMM manual;
4.2 it was not open to the appellant to use the patients' results from Trial 1 to determine questions of the overall veracity of the patients because that was contrary to the specific purpose of the TOMM;
4.3 it was not open to the appellant to use the patients' results from Trial 1;
- 4.3.1 as his major diagnostic tool; and
4.3.2 to conclude that each of the patients had an intention to deceive or to exaggerate his or her symptoms;
- 4.4 if it were found that, in reports which he subsequently wrote about his examinations of the patients, the appellant had represented that he had performed the TOMM on the patients, when he had only performed Trial 1 and not Trial 2, those representations would be false;
4.5 the evidence proposed to be given by Dr Green was irrelevant to the issues involved in the SAT proceedings.
be set aside.
- 5. Upon the final hearing of the SAT proceedings, the appellant be at liberty to call evidence to prove and to argue that:
5.1 by performing Trial 1 but not Trial 2 on each of the patients, the appellant had properly applied the TOMM to the patients;
5.2 it was open to the appellant to use the patients' results from Trial 1 to determine questions of their overall veracity;
5.3 it was open to the appellant to use the patients' results from Trial 1 as his major diagnostic tool to conclude that each of the patients had an intention to deceive or to exaggerate his or her symptoms;
5.4 if the appellant represented in any of his reports about the patients that he had performed the TOMM on a patient, when he had performed Trial 1 on the patients but not Trial 2, that representation would be true."
(Page 6)
- (a) Specific findings of fact were made by the Tribunal which must therefore be specifically set aside; and
(b) "It is necessary for the court to make clear to the Tribunal and the parties exactly what evidence the appellant is at liberty to call."
5 We do not accept those submissions. We do not think it is correct to characterise the decision of the Tribunal as a decision in which specific findings of fact were made. The order which has already been made, without objection, setting aside the determination of the Tribunal to the effect that it would apply findings made by the Supreme Court as a matter of comity, and refuse to permit Dr Mustac to call expert evidence from Dr Green, make the position abundantly clear. There is no need for any further orders. An order in terms of proposed order 5 above would improperly constrain the Tribunal from determining what evidence should be adduced at the substantive hearing before it, in advance of that hearing.
Costs
6 Dr Mustac seeks his costs of the application for leave to appeal, the appeal and the notice of contention, to be taxed. The Board opposes that order on the basis that it is "not a normal litigant", but "is a statutory body, exercising statutory duties to protect the public interest and the reputation of the medical profession". It is also submitted that there were a number of issues of general importance that were resolved by the appeal, including issues relating to the status of the Tribunal and the Tribunal's position in the hierarchy of courts, and issues relating to the practice of judicial comity.
7 None of these propositions appear to us to have any bearing on the proper exercise of the court's discretion with respect to costs. That discretion is generally exercised on the basis that the successful party to any matter will recover their costs (Rules of the Supreme Court 1971 (WA), O66 r 1). The fact that the Board is a statutory body acting to further and protect the public interest, and the fact that some issues addressed were of general importance do not, in our opinion, provide any basis in the present case for departing from the general practice.
8 In this case, the Board has proceeded against Dr Mustac on two separate occasions. It unsuccessfully sought orders which would have the effect of preventing Dr Mustac from raising certain issues, and leading evidence in support of those issues, in the second set of proceedings.
9 Even a tribunal with a statutory responsibility to decide an issue may be the subject of a costs order if it actively participates in proceedings
(Page 7)
- concerning the correctness of its own decisions: compare Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609 (at 612 per Wilcox J); Riverina Broadcasting (Holdings) Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 813 (at 828 per Drummond J).
10 The Board participated fully in the argument both before the Tribunal and in this Court. In those circumstances, We can see no reason at all why Dr Mustac should not have the order which he seeks in relation to the costs of the proceedings in this Court.
The Suitors Fund Act
11 The Board also seeks an indemnity certificate under the Suitors Fund Act. It should be noted that the grant of such a certificate will be of limited benefit to the Board, given that the maximum amount that could be paid to the Board under the Suitors Fund Act is the sum of $2000 (s 11(3)(b)), which is unlikely to go a great distance towards meeting the costs which the Board will have to pay towards Dr Mustac's costs or its own.
12 The discretion pursuant to s 10 of Suitors' Fund Act 1964 is a discretion to grant, not a discretion to refuse, as the Court pointed out in Richards v Faulls [1971] WAR 129 at 137 - 138. The Board must show some ground calling for the exercise of the discretion in its favour. As Wheeler JA observed in Jones v Dalcon Construction [2006] WASCA 205(S) at [5] and [6]:
"5In Richards v Faulls, the Court considered that, in broad terms, the discretion might be exercised where there is a question of law which might reasonably be resolved in different ways, "so that in a sense the unsuccessful party may be thought to have suffered some 'misfortune' owing to a doubt about the correct rule of law to be applied" (at 138) ...
6However, the question identified in Richardsgives rise to a broad assessment of the conduct of the case, the issues arising, and the role of the unsuccessful respondent ... "
13 In the present case, the Board initiated the proceeding in SAT which led to the decision set aside in this appeal, and actively maintained its position in the appeal.
(Page 8)
14 Further, it seems to us to be relevant to observe that s 13(3) of the Suitors Fund Act provides that an indemnity certificate is not to be granted in favour of the Crown. The Board is a statutory instrumentality created under the Medical Act 1894 (WA). Although it is unnecessary to determine its precise legal status for present purposes, it is clear that it is analogous to many instrumentalities and agencies of the Crown. Because of that analogy, in our opinion it is consistent with the sentiment expressed by the Parliament when it enacted s 13 to decline to grant the Board the indemnity certificate which it seeks.
Summary
15 For these reasons we are not disposed to make any further orders in this matter, other than an order that the respondent pay the appellant's costs of the application for leave to appeal, the appeal and the notice of contention, to be taxed. We will not grant the Board an indemnity certificate under the Suitors Fund Act.
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