MYERS and MEDICAL BOARD OF AUSTRALIA
[2014] WASAT 94 (S)
•23 OCTOBER 2014
MYERS and MEDICAL BOARD OF AUSTRALIA [2014] WASAT 94 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 94 (S) | |
| HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 | |||
| Case No: | VR:59/2013 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) | 23/10/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for costs by Board successful | ||
| B | |||
| PDF Version |
| Parties: | JOHN MYERS MEDICAL BOARD OF AUSTRALIA |
Catchwords: | Costs Health Practitioner Regulation National Law (WA) Act 2010 Section 47 application Proceedings misconceived |
Legislation: | Health Practitioner Regulation National Law (WA) Act 2010, s 26, s 201 State Administrative Tribunal Act 2004 (WA), s 24, s 47, s 47(1)(a), s 48, s 87, s 87(1) |
Case References: | Medical Board of Western Australia and Kyi [2009] WASAT 22 Motor Vehicle Industry Board and Dawson [2006] WASAT 8 Myers and Medical Board of Australia [2014] WASAT 94 |
Orders | On the application determined on the documents by the President, Justice Curthoys, it is on 23 October 2014 ordered that: ,1. Dr Myers is to pay the Medical Board of Australia's costs of the application from 10 May 2013 to be assessed if not agreed. |
Summary | The practitioner applied to have a condition on his registration removed. The Medical Board of Australia removed the condition seven weeks after the application was commenced. Despite this, the practitioner continued with his application. The practitioner was ordered to pay the Board's costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : MYERS and MEDICAL BOARD OF AUSTRALIA [2014] WASAT 94 (S) MEMBER : JUSTICE J C CURTHOYS (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 23 OCTOBER 2014 FILE NO/S : VR 59 of 2013 BETWEEN : JOHN MYERS
- Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
Costs - Health Practitioner Regulation National Law (WA) Act 2010 Section 47 application - Proceedings misconceived
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 26, s 201
State Administrative Tribunal Act 2004 (WA), s 24, s 47, s 47(1)(a), s 48, s 87, s 87(1)
Result:
Application for costs by Board successful
Summary of Tribunal's decision:
The practitioner applied to have a condition on his registration removed. The Medical Board of Australia removed the condition seven weeks after the application was commenced. Despite this, the practitioner continued with his application. The practitioner was ordered to pay the Board's costs.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Ms F Stanton
Solicitors:
Applicant : N/A
Respondent : MDS Legal
Case(s) referred to in decision(s):
Medical Board of Western Australia and Kyi [2009] WASAT 22
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
Myers and Medical Board of Australia [2014] WASAT 94
Introduction
1 This decision follows the Medical Board of Australia's (the Board) successful application under s 47 of State Administrative Tribunal Act 2004 (WA) (the Act)to dismiss Dr John Myers' application. These reasons are to be read in association with the decision in Myers and Medical Board of Australia [2014] WASAT 94.
2 Dr Myers opposed a costs award and sought an order that that his own costs be paid by the Board on the basis of s 48 of the Act; that is, that the Board conducted the proceedings in such a way as to cause unnecessary disadvantage to another party.
The general rule as to costs in the Tribunal
3 Section 201 of the Health Practitioner Regulation National Law (WA) Act 2010 (the National Law) gives the Tribunal power to make an order for costs as it thinks appropriate.
4 The general position in relation to costs in the Tribunal is that, normally, each party bears its own costs of a proceeding: s 87(1) of the Act.
5 In Motor Vehicle Industry Board and Dawson [2006] WASAT 8 (Dawson) at [44] [48], the Tribunal decided that it was only in exceptional circumstances that costs should be awarded against vocational regulatory bodies. The basis for this decision is that such bodies should not be discouraged from fulfilling their statutory duties.
6 When proceedings are dismissed by the Tribunal because they have been maintained in circumstances in which they do not relate to any matter genuinely in dispute between the parties and are wasteful of the Tribunal's resources, a proper basis exists for an order for costs to be made against the applicant for review; Medical Board of Western Australia and Kyi [2009] WASAT 22 (Kyi) at [73].
The history of the proceedings
7 Dr Myers filed his application on 20 March 2013. An order was made on 9 April 2013 requiring the Board to supply written reasons for its decision by 30 April 2013. On 2 May 2013, the Board removed the condition from Dr Myers' registration. The Board's written reasons were filed on 3 May 2013.
8 The application was referred to mediation and was mediated alongside the related, substantive proceedings commenced against Dr Myers by the Board (VR 81 of 2013).
9 On 18 December 2013 Dr Myers filed a statement of issues, facts and contentions. The parties then consented to Dr Myers having until 24 January 2014 to file an amended statement of issues, facts and contentions and a bundle pursuant to s 24 of the Act. Dr Myers' amended statement of issues, facts and contentions was filed on 24 January 2014. The Board's s 24 bundle was filed on 4 February 2014. The Board was allowed until 28 February 2014 to file a responsive statement of issues, facts and contentions.
10 On 4 March 2014 the Board was ordered to file a statement of proper, written reasons for the decision dated 6 March 2013 and the decision made on 2 May 2013.
11 A directions hearing then brought the matter to a substantive hearing as to whether the proceedings should be dismissed. Ultimately the application was dismissed on the basis that it was misconceived for the purpose of s 47(1)(a) of the Act.
Dr Myers' s 48 application
12 Section 48 of the Act provides:
Proceedings being conducted to cause disadvantage, Tribunal's powers as to
(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -
(a) failing to comply with an order or direction of the Tribunal without reasonable excuse; or
(b) failing to comply with this Act or the enabling Act; or
(c) asking for an adjournment the need for which is attributable to a failure described in paragraph (a) or (b); or
(d) attempting to deceive another party or the Tribunal; or
(e) vexatiously conducting the proceeding; or
(f) failing to attend any hearing in the proceeding.
(2) If this section applies, the Tribunal may -
(a) if the party causing the disadvantage is the applicant, order that the proceeding be dismissed or struck out;
(b) if the party causing the disadvantage is not the applicant -
(i) determine the proceeding in favour of the applicant and make any appropriate orders; or
(ii) order that the party causing the disadvantage be struck out of the proceeding.
13 Dr Myers argues that s 48 of the Act should be applied because:
a) The proceedings took a long time;
b) The Board failed to comply with orders;
c) The Tribunal made orders for the filing of certain affidavits;
d) The Board made a decision contrary to s 26 of the National Law; and
e) The Board's conduct therefore amounted to 'abuse or misfeasance'.
Analysis
14 The Board's letter of 6 March 2013 was poorly phrased. It seems to have led Dr Myers to believe that a decision had been made, when in fact a decision had not been made. Even so, the Board removed the condition within seven weeks of the application being filed and any proceedings thereafter were misconceived.
15 Notwithstanding the removal of the relevant condition on 2 May 2013, Dr Myers did not seek to discontinue these proceedings.
16 The proceedings continued because of Dr Myers' pursuit of them, even after the condition on his registration was removed on 2 May 2013. The proceedings did not relate to any matter genuinely in issue between the parties and were wasteful of the Tribunal's resources.
17 Dr Myers has not demonstrated any basis on which costs should be under s 48 of the Act. Continuing proceedings after 10 May 2013 was misconceived. It served no useful basis. There was not anything in the Board's conduct between 20 March 2013 and 2 May 2013 that could be the subject of any criticism.
18 Whatever criticisms Dr Myers has of the conduct of the proceedings thereafter, it was Dr Myers' decision to continue.
19 In any event, there was not anything about the Board's conduct after 2 May 2013 about which criticism can be made. The Board conducted the proceedings in a manner consistent with the Tribunal's requirements. It is not necessary to traverse Dr Myers' allegations seratim because they are without substance.
20 Applying the principles in Dawson (at [44 [48]) and Kyi (at [73]) it is appropriate for the Board to have the costs of these proceedings from 10 May 2013. By 10 May 2013 a reasonable time had expired after 2 May 2013 for Dr Myers to obtain legal advice in relation to the Board's decision to remove the condition by that date he ought to have taken or begun taking steps to discontinue the proceedings.
Order
1. Dr Myers is to pay the Medical Board of Australia's costs of the application from 10 May 2013 to be assessed if not agreed.
I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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