Myers v Medical Board of Australia
[2025] VSC 363
•20 June 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 04653
| JOHN B. YAACOV MYERS | Appellant |
| v | |
| MEDICAL BOARD OF AUSTRALIA | Respondent |
---
JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 June 2025 |
DATE OF JUDGMENT: | 20 June 2025 |
CASE MAY BE CITED AS: | Myers v Medical Board of Australia |
MEDIUM NEUTRAL CITATION: | [2025] VSC 363 |
---
ADMINISTRATIVE LAW — Appeal from associate judge — Application for security for costs for an appeal refused by an associate judge — Impecunious appellant — General principle that impecuniosity no bar to a litigant modified — Where application for security made in respect of an appeal by an impecunious litigant — Consideration of other discretionary factors including merits of the appeal — Test for appeal under section 148 Victorian Civil and Administrative Tribunal Act 1998 (Vic) requires satisfaction that the appeal has ‘a real prospect of success’ — Wrong test applied — Appeal allowed — Exercise of inherent jurisdiction to make an order for security — Rehearing — Order for security for costs made in substitution for original order — Supreme Court Act 1986 (Vic) s 17(3) — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 77.06.1-77.06.9 — Jafari v 23 Developments Pty Ltd [2019] VSCA 16 — Nyoni v Pharmacy Board of Australia [2018] FCA 1313 discussed.
---
APPEARANCES: | Counsel | Solicitors |
For the Appellant | Self-represented | |
For the Respondent | Ms M Isobel | Russell Kennedy |
HER HONOUR:
INTRODUCTION
The substantive proceeding in which this appeal arises is an application for leave to appeal an order made by the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act (1998) (the ‘VCAT Act’). The Tribunal’s order upheld the decision of the Medical Board of Australia (the ‘Board’) to refuse Dr John B. Yaacov Myers’ (‘Dr Myers’) re-registration as a medical practitioner.
This appeal before me, brought by the Board under section 17(3) of the Supreme Court Act 1986 (Vic), is from the decision of an associate judge to refuse the Board’s application for security for costs in relation to the substantive appeal.
BACKGROUND
Following the cancellation of Dr Myers’ medical registration in February 2015, he was fined and disqualified from applying for re-registration for five years following the findings against him in proceedings brought in Western Australia.
On 17 June 2021, the Board refused Dr Myers’ application to re-register as a General and Specialist medical practitioner (Physician – General Medicine).
In August 2021, Dr Myers applied to the Tribunal for review of the Board’s decision to refuse his application for re-registration pursuant to the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) (the ‘National Law’). The Tribunal heard Dr Myers’ application over two days, the Tribunal being constituted by a Deputy President and two medical practitioner Members.
The Tribunal upheld the decision of the Board and published its reasons on 11 July 2024.[1] The Tribunal found that it was not satisfied that Dr Myers met the recency of practice requirements, and found that Dr Myers was not a ‘fit and proper person’ to hold general registration under section 52(1)(c) or a specialist registration under section 57(1)(c) of the National Law.[2]
[1]Myers v Medical Board of Australia (Review and Regulations) [2024] VCAT 629 (‘Tribunal’s reasons’).
[2]Pursuant to section 82(1)(c)(i) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic).
Dr Myers sought leave to appeal the orders of the Tribunal to the Supreme Court of Victoria on or about 22 August 2024. The appeal is brought pursuant to section 148 of the VCAT Act. An appeal under this section is limited to a question of law and must be brought within 28 days of a Tribunal’s order. Dr Myers’ notice of appeal was filed after this time limit had expired and he requires an extension of time to file his appeal.
On 29 November 2024, the Board filed a summons seeking orders for security for costs in the proceeding in the amount of $100,000 or such amount as the Court considered appropriate. If there was failure to pay the security by the date, the Board sought orders that the proceeding be dismissed.
The hearing before the associate judge
On 15 January 2025, the Board’s application for security for costs was heard by an associate judge. On 29 January 2025, his Honour dismissed the Board’s application. It is from this decision by the associate judge that the Board brings its appeal.
In support of the Board’s application before his Honour, it relied upon the affidavit of Kylie Walsh, the Board’s solicitor, dated 25 November 2024 and an outline of submissions filed on 20 December 2024.
Dr Myers opposed the Board’s application and relied on his affidavits dated 10 December 2024, 8 January 2025, and 9 January 2025.
In the substantive matter, Dr Myers’ notice of appeal contained four proposed questions of law, and lengthy material said to be the proposed grounds of appeal. His Honour recorded that Dr Myers explained that his notice of appeal represented a summary of the grounds articulated in an unsworn affidavit exhibited to his affidavit filed 9 September 2024. In the absence of any application to amend the notice of appeal, his Honour considered only the content of the filed notice of appeal when considering the merits of Dr Myers’ proposed appeal.
His Honour recorded the relevant legal principles as follows:
(a) the application by the Board was brought pursuant to the Court’s inherent jurisdiction.[3] The Court has inherent power to regulate its own practice and procedure to procure proper and effective administration of justice and prevent abuse of process. The inherent jurisdiction extends to the Court protecting the effectiveness of the exercise of the jurisdiction to award costs by ordering security for costs where it is necessary in the interests of justice to do so;[4]
[3]Lines v Tana Pty Ltd [1987] VR 641, 642 (Crockett, O’Bryan and Tadgell JJ); Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443, 447 (Holland J) (‘Rajski v Computer Manufacture & Design’).
[4]Trkulja v Dobrijevic (No 2) [2016] VSC 596, [20] (Garde J).
(b) the exercise of power to order security for costs is discretionary and not limited to the circumstances in similar decided cases;[5]
[5]Rajski v Computer Manufacture & Design 448-9; Von Marburg v Aldred & Anor (No 3) [2017] VSC 146, [39] (Derham AsJ).
(c) the purpose of the exercise of the inherent power is to prevent the defendant, if successful, being left with an unenforceable costs order;
(d) because such an order may stultify an impecunious plaintiff from filing or continuing a proceeding. Impecuniosity of a natural person plaintiff of itself is not usually enough;
(e) in cases where natural persons have been ordered to provide security for costs, the factors in addition to impecuniosity have included:
(i) residence outside Australia;
(ii) where the claim is brought to a significant extent for the benefit of others;
(iii) lack of prospects for success; and
(iv) evidence of the plaintiff avoiding his creditors and financial responsibilities.
(f) The burden of satisfying the Court that the threshold has been met and that the Court should exercise its discretion to order security for costs rests on the defendant ‘from first to last’. However, where matters are peculiarly within the knowledge of the plaintiff such as;
(i) where an order for security would stultify its capacity to conduct the litigation; and
(ii) whether the plaintiff’s impecuniosity was caused by the defendant;
this must be established by the plaintiff.
(g) An additional relevant factor to the exercise of the Court’s discretion is whether there are any aspects of public interest militating against the making of such an order.
Consideration by the associate judge
His Honour recorded that the Board relied on the following factors, submitting that in the circumstances the Court should exercise its discretion to order security:
(a) Dr Myers is impecunious;
(b) the Board’s costs of responding to the appeal will be significant, and estimated to be $154,549;
(c) Dr Myers’ impecuniosity renders any costs order in favour of the Board unenforceable;
(d) the Board is funded entirely by registrant fees;
(e) Dr Myers’ appeal has no real prospect of success because:
(v) he requires an extension of time and has provided no evidence as to why this should be granted and the Court could refuse an extension on the basis that the appeal is so devoid of merit that to grant an extension would be futile;
(vi) Dr Myers requires leave to appeal;
(vii) Dr Myers has not identified arguable errors of law but rather seeks a merits review of the Tribunal’s decision;
(viii) Dr Myers’ supporting documentation is voluminous, chaotic in nature, and does not meaningfully identify or provide supporting evidence of any errors of law in the Tribunal’s decision; and
(ix)even if the Court identifies one or more questions of law within Dr Myers’ material, those questions of law have no real prospect of success.
(f) That an order for security for costs would stifle Dr Myers’ appeal and ordinarily this would weigh against the Court ordering security. However, even if Dr Myers’ appeal was stultified, there is nothing stopping him from submitting a new application for re-registration to the Board;
(g) Dr Myers’ appeal raises no matters of public interest as he seeks re-registration to pursue his private interests in the medical profession. Conversely, the Board argued considerable public interest because the Board funds its statutory regulatory responsibilities solely from fees paid by registered doctors which has no public funding; and
(h) the Board acknowledged Dr Myers’ impecuniosity was attributable in part to his inability to practice as a medical practitioner, however, he is solely responsible for his actions that have led to multiple findings of unprofessional conduct and professional misconduct in the Tribunal and Western Australian State Administrative Tribunal.
Moreover, his Honour sets out his reasons for refusing the application in paragraphs [V]-[DD] of his orders.
His Honour accepted that:
(a) as a result of Dr Myers’ impecuniosity, there is a high risk that any costs order in the Board’s favour will not be satisfied;[6]
[6]Order of Irving AsJ in John B. Yaacov Myers v Medical Board of Australia (Supreme Court of Victoria, S ECI 2024 04653, 29 January 2025) 5, [V].
(b) the costs of responding to the appeal are likely to be significantly higher than a proceeding brought by a medical practitioner represented by competent lawyers;[7]
(c) the Board’s actions in the subject matter of this proceeding should only be regarded as a small part of the cause of Dr Myers’ impecuniosity; and[8]
(d) whilst Dr Myers conceded his impecuniosity, the authorities make it clear that impecuniosity of an individual plaintiff is usually not enough to warrant an order for security.[9]
[7]Ibid [V].
[8]Ibid [U].
[9]Ibid [V].
His Honour rejected the Board’s submission that Dr Myers’ appeal has no merit. He expressed the view that the Board had not discharged the onus in this regard, because beyond some brief oral submissions made in reply, the Board’s submission ‘did not grapple in any meaningful way’ with the merits of Dr Myers’ appeal.[10] He recorded that the Board’s written submissions appeared to be that Dr Myers’ materials were incomprehensible and therefore had no merit, and even if the Court was able to glean grounds of appeal from Dr Myer’s notice of appeal, those grounds would have no merit because the Tribunal’s reasons were carefully considered, comprehensive, and correct.
[10]Ibid [X].
His Honour said it was not possible for the Court to test that submission in the absence of substantive albeit summary submissions from the Board on Dr Myers’ questions of law. He said that while the authorities make it clear that it is appropriate for the Court to take only a ‘broadbrush’ approach to an assessment of merits, even a broadbrush approach requires some engagement with the content of the proposed appeal.
He did express concerns regarding the strength of Dr Myers’ appeal but concluded that it was not possible to be satisfied at this stage of the proceeding that the appeal has ‘no prospect of success.’ He acknowledged that the examination of Dr Myers’ appeal had been necessarily broadbrush.[11]
[11]Ibid [Y].
He rejected the Board’s submission that Dr Myers had not provided evidence as to why an extension of time should be granted and that his appeal was so devoid of merit that the Court would be justified in not granting an extension of time. His Honour found that Dr Myers’ affidavit made on 9 September 2024 appears to address the reasons for his delay, including his observation of some religious obligations and issues with the Court’s electronic filing system. He noted that whether or not these matters will persuade a Court to extend the time is a matter for another day.[12]
[12]Ibid [Z].
On the ‘public interest’ consideration, he rejected Dr Myers’ submission that there is a public interest in the outcome of his appeal because it will expose the deliberate actions of the Board to stop Dr Myers from practising for reasons unrelated to his disciplinary history.
He also rejected the Board’s submission which argued that there is a public interest in making an order for security for costs because the Board is funded by registrant fees and it is required to be party to the proceeding. The Board’s submission would equally apply to each and every appeal involving a review by the Tribunal of a decision of the Board. His Honour noted that the authorities make it clear that the public interest is a factor in the exercise of the Court’s discretion where it militates against the making of an order.
He concluded ‘weighing each of these matters, and noting the particular caution to be exercised by the Court in ordering security to be paid by an impecunious plaintiff, I am not satisfied that it will be appropriate in all the circumstances of this case to order security for costs’.[13]
QUESTIONS OF LAW AND GROUNDS OF REVIEW
[13]Ibid [DD].
The appeal before this Court brought by the Board
The appeal is brought under section 17(3) of the Supreme Court Act 1986 (Vic). Such appeals must be brought in accordance with rules 77.06.1 to 77.06.9 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the ‘Rules’). An appeal from an associate judge is an appeal by way of a rehearing. The applicant must show that there was legal, factual, or discretionary error by the judge.[14] On the appeal, the Court has the power to give any judgment and make any order which ought to have been given or made, or any other order as the case may require.[15]
[14]Allesch v Maunz (2000) 203 CLR 172, 180.
[15]Supreme Court Act 1986 (Vic) s 17(3); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 77.06.9.
Where the appeal challenges the primary judge’s exercise of discretion, an appellate Court will not interfere with the exercise of discretion in the absence of strong reasons, such as an error of principle in the exercise of discretion, consideration of irrelevant matters, or other manifest mistake.[16]
[16]House v R (1936) 55 CLR 499, 504-5; Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627.
Grounds of appeal
The Board appeals on two grounds:
(a) First is that the learned judge erred in his determination of the Board’s application for security for costs by identifying and applying a more onerous legal test than what was required, namely, by requiring the Board to persuade the Court that Dr Myers’ appeal had ‘no real merit’ and/or ‘no prospects of success’;
(b) Second is that the learned judge erred in law by failing to consider the correct legal test in the specific circumstances of this case, namely, that the Board’s application for security for costs was bought in relation to an application for leave to appeal rather than a proceeding at first instance.
The Board’s submissions on the appeal
The submissions of the Board argued that his Honour approached the security for costs application on the wrong basis, applying the wrong principle. His Honour was wrong in commencing from the position in the circumstances of this litigation that impecuniosity of a natural person plaintiff of itself is not usually enough and that the Board bore the onus of persuading the Court that Dr Myers’ appeal has ‘no real merit’, a test higher than what was properly required.
It was argued that there was a critical difference in the test for security for costs where (as here) the application for security for costs was brought in relation to an application for leave to appeal rather than a proceeding at first instance. In circumstances of an appeal, impecuniosity is a sufficient basis for ordering security. The relative merits of the appeal about which his Honour expressed some concerns, was merely one of several other factors to be considered.
It was argued that the relative merits of the appeal was not a precondition to the ordering of security for costs, and his Honour erred by applying a more onerous legal test then what was required and failed to consider the correct legal test.
His Honour did not consider or appear to give any weight to the fact that Dr Myers has already been the beneficiary of a full merits review before the Tribunal, and instead regarded the impecuniosity factor as if it were a primary proceeding. His Honour did not make any reference to the authorities to which the Board had referred him on this point.
It was also submitted that he used language which set a bar higher than required by the correct test, referring to the test as ‘no prospect of success’ or ‘no real merit’. The correct test to be applied is that under section 148 of the VCAT Act. Under section 148, the Court is not to grant leave to appeal unless it is satisfied that the appeal has a ‘real prospect of success’. It was submitted that his Honour’s approach put the bar too high. This is particularly so where the acknowledged test of the enquiry into the merits of the proceeding must necessarily be broadbrush.
Dr Myers’ submissions on the appeal
Dr Myers opposed the Board’s appeal and submitted that his Honour’s decision was correct and that it properly addressed the matters required to be considered.
In particular, he relied on the strength of the merits of his appeal and the finding that his Honour was not persuaded that the Board had discharged its onus to persuade him that security for costs should be ordered.
In oral submissions, Dr Myers canvassed the long history of his dissatisfaction with decisions and findings of the Board and the Tribunal (both in Victoria and in Western Australia, the latter being the jurisdiction which cancelled his registration and forbade his application for re-registration for the specified term). He emphasised that his intention in this appeal would be to seek orders vindicating his reputation, and seeking to have all of the matters, regulatory and disciplinary, which he had been involved over the past 23 years revisited. He also made submissions that the effect of the Royal Commission into Aged Care and Mental Health required a different approach to care which vindicated his actions and that he was ‘years ahead of the curve’ in his medical and treatment approach.
In addressing the issue of the prolixity and state of the materials supporting his appeal, he submitted that he did not have the benefit of legal advice to assist him as he could not afford to do so.
Consideration
The appeal is by way of rehearing. To enliven the jurisdiction, an error must be identified in the associate judge’s decision.
In summary, the Board identified two interrelated errors in his Honour’s approach to the exercise of his discretion to make an order for security for costs in the context of an impecunious litigant:
(a) First, his Honour erred in failing to apply the principle that impecuniosity alone was sufficient in the context of an appeal or application for leave to appeal.
(b) Secondly, in considering Dr Myers’ prospects of success, his Honour applied a more onerous legal test then was required, that being that the Board had the onus of persuading the Court that Dr Myers’ appeal had ‘no real merit’ and/or ‘no prospects of success’, effectively creating a precondition to the provision of security for costs.
Error in the test applied to an impecunious litigant
His Honour has applied the test as if Dr Myers was a litigant at first instance.
The public policy which sits behind the principle generally applied by the Courts to an impecunious litigant not being shut out of their day in Court, does not have the same force and the principle cannot be applied in the same way where the litigation is at an appeal stage. The authorities to which his Honour was referred, make this position or change of emphasis clear.
At the Hearing, his Honour was referred to Jafari v 23 Developments Pty Ltd (‘Jafari’),[17] and Nyoni v Pharmacy Board of Australia (‘Nyoni’).[18] His Honour makes no reference to these authorities and it does not appear that he engaged with them.
[17][2019] VSCA 16 (‘Jafari’).
[18][2018] FCA 1313 (‘Nyoni’).
In Jafari, the Court of Appeal said at [7];
At first instance, there is a general rule that, absent other factors, an impecunious natural person who sues will not be ordered to give security for costs. On an application for leave to appeal, different considerations apply, because there has already been a determination adverse to the impecunious applicant. This means that, subject to other discretionary factors, security will usually be ordered against an impecunious applicant if the proposed appeal is not reasonably arguable.[19]
[19]Jafari [7].
In Nyoni, White J made reference to Cowell v Taylor,[20] in which Bowen LJ said at [23];
The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule of common law, and also, I believe in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of her Majesty’s courts, and so an insolvent party is not excluded from the courts, but only prevented, if you cannot find security, from dragging his opponent from one court to another.
[20]Cowell v Taylor (1885) 31 Ch D 34, [38].
Further, White J referred to Skyring v Sweeney,[21] where Spender J said;
Impecuniosity is a factor which can be taken into account as justifying the grant of security. Impecuniosity ought not to be a bar to a person prosecuting at first instance a claim, but the position on appeal seems to me to be fundamentally different. In effect, in the absence of an order for security for costs in the circumstances of this case, Mr Skyring, in effect, is given a free hit, and that seems to me to be intrinsically unfair.
[21]Skyring v Sweeney [1999] FCA 61, [6].
His Honour does not engage with this change of emphasis in his reasons. He has instead given priority in his consideration to Dr Myers’ impecuniosity. His reference at [DD] of the reasons demonstrates that he has treated Dr Myers as if he were a litigant at first instance, and appears to give no weight at all nor any consideration to the fact that the substantive proceeding is an appeal.[22] Further, he does not appear to consider the height of the bar over which Dr Myers must leap in persuading a Court that he has a real prospect of success on the section 148 appeal under the VCAT Act.
[22]Order of Irving AsJ in John B. Yaacov Myers v Medical Board of Australia (Supreme Court of Victoria, S ECI 2024 04653, 29 January 2025) 5, [DD].
This is not to say that there are no other factors relevant to the exercise of the Court’s discretion. However, in my view in the circumstances of an appeal, the correct starting point is modified from the general rule applicable at first instance that ‘poverty is no bar to a litigant’. In my view, his Honour has erred in his approach in making no reference to, engaging with, or giving any weight at all to the fact that the substantive proceeding is an appeal.
Further, given that the nature of the appeal is one brought pursuant to section 148 of the VCAT Act, the appeal is not a right, nor is it on the merits, but requires the Court to achieve a level of satisfaction that the appeal has a real prospect of success for leave to be the granted. In my view, these factors are all highly relevant to the circumstances and the approach which is properly required to be considered where an application for security for costs arises from an appeal from a de novo merits appeal at the Tribunal.
Relevance of the merits of the appeal and the onus to be applied
Even if the impecuniosity of the litigant were not enough of itself where security is sought on an appeal, in my assessment his Honour applied a test which set the bar higher than is required to the merits of the appeal consideration.
His Honour was correct in stating that the onus is on the applicant who is seeking the security for costs to make out the justification for the order. However, in my assessment of the notice of appeal, questions of law, and the grounds which are alleged to support those questions of law, they are on their face without merit.
Considering the reasons as a whole, the pivotal issue upon which his Honour appears to have refused the application is the finding that he was not persuaded that the Board had discharged the onus in respect of the merits of Dr Myers’ appeal.[23]
[23]Ibid [W]–[Y].
His Honour has relied upon the ‘brief oral submissions made in reply’ as the basis of his view that the Board’s submission ‘did not grapple in any meaningful way’ with the merits of Dr Myers’ appeal. He correctly acknowledges that the authorities make it clear that it is appropriate for the Court to only take a ‘broadbrush approach’ to the assessment of the merits, but expresses the view that ‘even a broadbrush approach requires some engagement with the content of the proposed appeal’.[24]
[24]Ibid [X].
The test for leave to appeal (assuming Dr Myers persuaded the Court that he had a satisfactory excuse for an extension of time) requires him to establish that his appeal has ‘a real prospect of success’. This test is not satisfied by a theoretical or superficial prospect of success, but a real prospect of success. In my view, objectively considering the Tribunal’s decision, the questions of law posed, and the voluminous grounds of appeal, this application for leave to appeal would be highly unlikely to satisfy a judicial officer to grant leave.
Examination of the four questions of law posed demonstrates that what Dr Myers seeks is an impermissible merits review.
The right to appeal under section 148 of the VCAT Act is restrained by three components:
(a) first, that an appeal lies only on a question of law;
(b) secondly, that leave is required; and
(c) thirdly, that leave can only be granted if the Court is satisfied that the appeal has a real prospect of success.
In my view, the lack of merit in Dr Myers’ appeal is patent from its face.
Turning to the questions in Dr Myers’ notice of appeal, the first two questions are properly characterised as merits review questions.
Question 1: ‘[d]id the Tribunal err in its decision (b) to refuse to grant re-registration based on recency of practice given it stated [Dr Myers] had not provided or produced a list of publications and presentations at the hearing on 14 and 15 December 2023/5784 and raises the question what else did they fail to take into account in terms of recency of practice, specifically in relation to the findings of the two Royal Commissions and the recommendations of the Royal Commission into Aged Care: Quality & Safety ACRC 2021 and the Royal Commission into Victoria’s Mental Health Services RCVMSH 2021?’[25]
[25]Notice of Appeal filed 22 August 2024.
Question 2: ‘Did the Tribunal err in its decision (a) to refuse to grant re-registration claiming [Dr Myers was] not a “fit & proper” person to hold registration?’[26]
[26]Ibid.
In the context of the requirement that an appeal under section 148 of the VCAT Act is only available on a question of law, the questions as they are currently framed, are bound to fail. Further, by reference to the grounds, no other colour can be attached to those questions other than that which goes to the merits of the decision and disagreement with the Tribunal as to the outcome, and Dr Myers’ failure to persuade the Tribunal of the merits of his case.
Question 3: ‘Did the Tribunal err in not having regard to Schedule 7 of the Health Professions Regulation National Law HPRNL 2009 S 7. Interpretation best achieving Law’s purpose (1) and (2), together with S 8. Use of extrinsic material in interpretation (1)(b) Royal Commissions, ACRC 2021 and RCVMHS 2021, and (2)(a),(b),(c), (3)(a). (b), (c), in determining best practice and thus “unprofessional Conduct”?’[27]
[27]Ibid.
The provisions in Schedule 7 of the National Law sets out miscellaneous provisions relating to the interpretation of the National Law. They do little more than adopt the principles of construction which are to be generally applied in undertaking a statutory interpretation task.
Section 7 of Schedule 7 provides that in interpretating the National Law, the interpretation that will best achieve the purpose or object of the National Law, is to be preferred to any other interpretation. There is nothing controversial or unusual about that provision.
Equally, section 8 of Schedule 7 does no more than specify the approach to the use of extrinsic material which is commonly adopted in statutory interpretation, that being if the provision is ambiguous or obscure or where the ordinary meaning of the provision leads to a result that is manifestly absurd or unreasonable, that extrinsic material can be utilised to support an interpretation to avoid such a result. It also provides that in any other case, the use of extrinsic material to confirm interpretation conveyed by the ordinary meaning of the provision will be assisted by the use of extrinsic material.
In effect, the reference to these aids to statutory interpretation set out in Schedule 7 add nothing to the argument that the Tribunal was in error in coming to the conclusion that Dr Myers was not a ‘fit and proper person’ to hold registration. Again, the essence of this question goes to the merits of the decision and not legal error.
The Tribunal spent a significant amount of time considering the matters raised by Dr Myers in respect of Royal Commissions.[28] The Tribunal records its opinion of Dr Myers’ submissions regarding the Royal Commission’s effect on changing how his disciplinary history should be considered. This is summarised in the following passage:
[222]While Dr Myers in the broad submits that Royal Commissions and law reform change how the Myers decision should be considered, he failed in his oral and written submissions to make any substantive persuasive case. His 200 references to the ACRC and 177 references to the RCVMHS (generally in tandem) in his 239 page submission leave us none the wiser as to the link sought to establish.[29]
[28]Tribunal’s reasons [8]—[9], [33], [37]—[38], [78], [147]—[148], [152]—[153], [160]—[175], [183]—[193], [198]—[199], [208], [212]—[214] and [222].
[29]Ibid [222].
This conclusion of the Tribunal makes it abundantly clear that the Tribunal considered Dr Myers’ submissions in respect of the Royal Commissions and law reform. In the context of section 8 of schedule 7 to the National Law, insofar as the key question for the Tribunal was whether Dr Myers was a fit and proper person, it is difficult to see how this material could have been dealt with by the Tribunal in any other way than an appropriate manner. It demonstrates that the Tribunal had regard to the nominated ‘extrinsic material’.
The Tribunal expressly referred to the purposes of the National Law in making its decision.[30] It also highlighted its awareness was to have regard to the objectives and guiding principles of the National Law as set out in Vito Zepinic v Health Care Complaints Commission.[31]
[30]Tribunal’s reasons [12]-[14].
[31][2020] NSWSC 13; referred to at Tribunal’s reasons [26] and applied at [24].
Dr Myers disagrees with the outcome and reasoning of the Tribunal in coming to the conclusion that he was not a fit and proper person to hold registration. Disagreeing with the Tribunal’s conclusion and of the reasoning they used to get to that conclusion is not equivalent to identifying an error of law.
Fortification of this view is supported by Dr Myers’ oral submissions before me, in that he views his appeal as one which enlivens the Court to deal with all of the matters in which he has been involved with the Board over the past 23 years. His fundamental lack of appreciation that the appeal is limited to questions of law based on grounds which support those questions of law is glaring.
Question 4: ‘Did the Tribunal err in deciding the matter on facts and on a weight of evidence basis provided reasons or did the Tribunal avoid or ignore facts and weight of evidence and decide on the basis of “persuasion”?’[32]
[32]Notice of Appeal filed 22 August 2024.
Giving the kindest interpretation to the framing of this question, it could be argued that the question raised here goes to the manner in which the Tribunal considered the evidence could demonstrate some form of error. However, when the grounds are considered, this attack is a difference of opinion on the outcome, and a dissatisfaction with the Tribunal’s view of the evidence. Further, in the framing of Question 4, there is no valid question of law which can be based on weight of the evidence.
Finally, the reference to ‘persuasion’ misunderstands the use of the term commonly utilised by a decision maker. The ‘persuasion’ referred to in this context is one which signifies satisfaction with the weight of the evidence and not some other metaphysical concept. Again, question 4 is an attack on the merits of the decision masquerading as a question of law.
I am of the view that his Honour, even if taking a ‘broadbrush’ approach to the merits of the appeal, was not required to be satisfied that that the proceeding had ‘no prospects of success’,[33] or ‘no real merit’.[34] The bar was not that high for the Board. The test in the circumstances of this matter was whether the Court would be satisfied that the appeal had ‘a real prospect of success’.[35]
[33]Order of Irving AsJ in John B. Yaacov Myers v Medical Board of Australia (Supreme Court of Victoria, S ECI 2024 04653, 29 January 2025) 5, [Y].
[34]Ibid [W].
[35]Section 148(2A) the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
I accept that his Honour identified the correct test in that the Board had the onus of persuading him of the lack of merit of the appeal. However, in my view, his Honour did not apply the correct test applicable to an appeal under section 148 of the VCAT Act. If the correct test had been applied, that being the section 148(2A) test, he may well have come to the conclusion that Dr Myers’ appeal is no more than an attempt to relitigate matters well in the past and that it fails to adequately identify legal error in the Tribunal’s comprehensive review of the Board’s decision.
As noted above, I am fortified in this view by Dr Myers’ oral submissions to me at the trial, wherein he urged upon me that this appeal was important because it would allow him to seek a review of all of the adverse decisions made against him by the Board over the last 23 years. A ‘real prospect of success’ means something more than a fanciful chance of success.[36]
[36]Kennedy v Shire of Campaspe [2015] VSCA 47, [12] (Whelan and Ferguson JJA); Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158, [29] (Warren CJ, Nettle and Neave JJA).
CONCLUSION
In relation to both questions of law raised by the Board, I am satisfied that his Honour was in error in his approach to the test to be applied in the circumstances of an appeal. It is not inconsistent with the policy of ensuring access to justice or from preventing an impecunious litigant from having their day in Court in these circumstances. Dr Myers has had the benefit of his day in Court, and he has a higher bar to succeed on appeal as a consequence of the current point in the litigation spectrum than if he were bringing an action at first instance.
His Honour was not persuaded that the appeal had ‘no real merit’. He used language which was indicative of a higher bar than the test under the VCAT Act for leave, and did not take into account the fact that this was an appeal which requires a different approach.
His Honour correctly identified that all that was required was a ‘broadbrush’ approach to the merits of the appeal. However, as I have set out above, it is apparent from the reasons given by the Tribunal at first instance when considered against the questions of law raised, that the content of the notice of appeal and the supporting grounds fall well short of a case which would meet the threshold of ‘a real prospect of success’ on any of the questions or grounds raised. The questions of law posed by Dr Myers’ appeal, on their face, have little prospect of success.
In my view, considering the questions of law proposed in Dr Myers‘ notice of appeal, the wide ranging grounds which lacked clarity and direction, and Dr Myers’ oral submissions before me, I have no hesitation in concluding that a Court would not be persuaded that he has a real prospect of success in relation to the application for leave to appeal.
I am satisfied that the Board’s appeal should be allowed.
RELIEF SOUGHT
On an appeal brought under section 17(3) of the Supreme Court Act, the Court has the power to give any judgment, and to make any order which ought to have been given or made, or any other order as the case may require.
The purpose of an order for security for costs is to prevent a successful applicant from being left with an unenforceable costs order. The Court’s power to make the type of order sought by the Board supports the effective use of the jurisdiction to award costs by ordering security for costs where it is necessary in the interests of justice to do so.
The power to make an order for security is discretionary, such discretion to be exercised judicially.
I am satisfied that despite the likely effect that an order for security for costs, even in the lower figure now requested by the Board of $60,000, will stultify Dr Myers’ appeal, the Board’s costs of responding to what I have determined is an appeal which has no real prospect of success, will be significant. Further, given that Dr Myers has already had the benefit of a de novo merits appeal considered by the Tribunal in all the circumstances, this is an appropriate order. There are no public interest or other factors which militate against the making of the order.
In all the circumstances, I am satisfied that it is appropriate and in the interests of justice to make such an order.
ORDERS
In accordance with the above reasons, I will order that:
(a) The decision of the associate judge made on 29 January 2025 is set aside.
(b) The appellant, Dr Myers, provides to the Prothonotary, by payment into Court or in another form acceptable to the Prothonotary, security for the respondent’s costs of this proceeding in the sum of $60,000 by 18 July 2025.
(c) If such security is not provided by 18 July 2025 the proceeding is stayed.
I will provide the parties with an opportunity to make submissions as to any application for costs.
---
0
10
0