NUGAWELA and MEDICAL BOARD OF AUSTRALIA - [2021] WASAT 147

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION:   NUGAWELA and MEDICAL BOARD OF AUSTRALIA [2021] WASAT 147
MEMBER:   PRESIDENT PRITCHARD
HEARD:   12 OCTOBER 2021
DELIVERED          :   Ex tempore
PUBLISHED           :   22 NOVEMBER 2021
FILE NO/S:   VR 71 of 2021
BETWEEN:   PATRICK NUGAWELA
Applicant
AND
MEDICAL BOARD OF AUSTRALIA (WA BOARD)
First Respondent
AUSTRALIAN HEALTH PRACTITIONER AGENCY
Second Respondent

Catchwords:

Practice and procedure Application for leave to commence proceeding pursuant to s 49 of the State Administrative Tribunal Act 2004 (WA) Where previous proceedings were withdrawn by consent Application to dismiss proceedings under s 47 of the State Administrative Tribunal Act 2004 (WA)

Legislation:

State Administrative Tribunal Act 2004, s 31, s 31(3), s 46, s 46(1), s 47, s 49, s 87(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	N/A
First Respondent	:	Mr M Etherington
Second Respondent	:	Mr M Etherington

Solicitors:

Applicant	:	In Person
First Respondent	:	Clayton Utz
Second Respondent	:	Clayton Utz

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

Briginshaw v Briginshaw [1938] HCA 34, (1938) 60 CLR 336

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.)

On 20 September 2021, Dr Nugawela filed an application in the Tribunal in which he sought the following relief:
1.Reinstatement of VR 50 of 2020, as a hearing de novo; and
2.Stay of VR 53 of 2020 pending the hearing above being separately determined.
The proceeding in VR 50 of 2020 was an application brought by Dr Nugawela in which he sought the review of a decision of the Australian Health Practitioner Regulation Agency (AHPRA)[1] which had the effect of him being not registered as a medical practitioner (deregistration decision). It appears that the proceeding in VR 50 of 2020 was ultimately resolved when the respondent to that proceeding reconsidered the deregistration decision and registered Dr Nugawela with effect from September 2020.
[1] The applications in VR 50 of 2020 and VR 71 of 2020 refer to AHPRA as the 'Australian Health Practitioner Agency', as respondent and second respondent respectively.
Consequent on that occurring, the Tribunal made an order in VR 50 of 2020 in the following terms:
(1)Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw the proceeding and the proceeding is hereby withdrawn.
(2)Each party is to bear its own costs.
That brought an end to the proceeding in VR 50 of 2020. That outcome reflected the fact that Dr Nugawela had had success, in the sense that the relief that he sought, namely his reregistration, was achieved and that he was registered as a medical practitioner from September 2020.
The factual position, which Dr Nugawela does not dispute, is that he was thereafter registered as a medical practitioner from September 2020 to September 2021 and his registration was again renewed for the current year with effect from September 2021.
In circumstances where proceedings have been dealt with under s 46 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), s 49 of the SAT Act provides that:
If a proceeding is dismissed or struck out under section 46 … another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a judicial member.
The proceedings in VR 50 of 2020 were not dismissed by the Tribunal. They were withdrawn by Dr Nugawela and an order made to that effect. It therefore might be arguable that leave to commence the proceedings is not required under s 49 of the SAT Act. It is not necessary for me to finally determine that issue for present purposes.
For the reasons which follow, it is arguable that the withdrawal of the proceeding in VR 50 of 2020, having regard to the circumstances in which it was withdrawn, had the same effect as a dismissal of the proceeding pursuant to s 46, in which case leave is required under s 49 of the SAT Act to commence a proceeding of the same kind (which, despite the reference to the 'reinstatement' of VR 50 of 2020, is what VR 71 of 2021 seeks to do). Alternatively, the nature of the proceeding now commenced by Dr Nugawela (in VR 71 of 2021) is misconceived and should be struck out by the Tribunal pursuant to s 47 of the SAT Act, for the same reasons.
The proceedings in VR 50 of 2020 were brought by Dr Nugawela effectively to challenge the deregistration decision. He achieved success in that proceeding because his registration was reinstated with effect from September 2020.
Dr Nugawela says that there was a hiatus between June and September of 2020 when he was unregistered. Even if that was and remains the case, it is far from apparent how the Tribunal would be in a position, if it permitted VR 71 of 2021 to continue, to make any order (in a review of the deregistration decision) which would have any practical utility whatsoever. That is because Dr Nugawela's registration has, since September 2020, been effective and he remains a registered practitioner.
The Tribunal's jurisdiction in respect of proceedings before it must lie in an enabling Act which confers authority on the Tribunal to exercise original jurisdiction or review jurisdiction. In VR 71 of 2021, Dr Nugawela appears to seek, in effect, a review of a decision of AHPRA or the Medical Board of Australia (Board),[2] which is the deregistration decision which was the subject of the proceedings in VR 50 of 2020, and seeks the same outcome, in the sense of examining the basis for the deregistration. Under s 31 of the SAT Act decision-makers can review reviewable decisions, and under s 31(3):
If the decision-maker varies the decision or sets it aside and substitutes a new decision, unless the proceeding for a review is withdrawn it is taken to be for the review of the decision as varied or the substituted decision.
[2] In the ground for application annexed to the application in VR 71 of 2021, Dr Nugawela refers to 'AHPRA/Medical Board' as the relevant decision-maker.
In this case, the proceeding in VR 50 of 2020 was withdrawn. The only decision that Dr Nugawela seeks to have reviewed by virtue of the application in VR 71 of 2021 is the deregistration decision. As I have said, that decision has been overtaken by events, namely, that Dr Nugawela's registration was, in fact, reinstated and he presently remains a registered medical practitioner. It is far from apparent that the Tribunal could take any action or make any order which would achieve an outcome different from that which Dr Nugawela has already achieved himself, namely, that the deregistration decision was set aside and a new decision made, to register Dr Nugawela as a medical practitioner. There would, therefore, be no utility in the 'reinstatement' (to use Dr Nugawela's description in VR 71 of 2021) of the proceeding in VR 50 of 2020.
That is not the end of the matter. The purpose behind the application in VR 71 of 2021 appears, on the face of the application and having regard to what Dr Nugawela has said today, to be something different from securing Dr Nugawela's registration. In effect, Dr Nugawela is concerned that at least one of the issues that underlay the deregistration decision is now being litigated by the Board as part of disciplinary proceedings in another matter in the Tribunal, in VR 53 of 2020.
Dr Nugawela appears to be concerned that there will be some potential prejudice to him if those issues (to which I will refer as issues 4 and 6[3]) are ventilated in VR 53 of 2020, when they underlay the proceedings in VR 50 of 2020. It is not apparent to me why there would be any such prejudice to Dr Nugawela.
[3] These are the numbers given to the relevant issues as identified in Dr Nugawela's statement of issues, facts and contentions in VR 53 of 2020.
Dr Nugawela expressed concern about what he has described as the onus of proof being reversed or being different. It is certainly the case that in VR 53 of 2020 the onus of proof rests on the Board. The Board has to prove the allegations that it brings against Dr Nugawela to the civil standard, bearing in mind the Briginshaw[4] explanation of the application of that standard. If it fails to do so, the Board's proceeding, or those aspects of its grounds in which it fails, will be dismissed. Dr Nugawela does not have to prove anything at all in that context. In that sense I see no prejudice to Dr Nugawela if I do not 'reinstate' VR 50 of 2020.
[4] Briginshaw v Briginshaw [1938] HCA 34, (1938) 60 CLR 336, 361 - 362 (Dixon J)..
Next, Dr Nugawela has argued that there should be a resolution of issues 4 and 6, but in the context of a review proceeding and in advance of the determination of VR 53 of 2020. He has not been able to explain why it is important or necessary to resolve those issues in advance of any other matters relied upon by the Board in VR 53 of 2020.
This application (in VR 71 of 2021) appears really to be motivated by a desire on Dr Nugawela's part to achieve an order which he has described as a stay of VR 53 of 2020, pending the determination of issues 4 and 6 in the context of proceedings akin to those in VR 50 of 2020. I do not see any basis to 'reinstate' the proceeding in VR 50 of 2020. Nor do I see any utility in doing so, in order to postpone the disciplinary proceedings in VR 53 of 2020, which have been on foot since June 2020.
Drawing all those threads together, the conclusion I have reached is that if this is a case in which the leave of the Tribunal is required under s 49 for Dr Nugawela to proceed with VR 71 of 2021, then leave should be refused. I do not see how the Tribunal would have any jurisdiction to grant the relief sought by Dr Nugawela, which would effectively be no different from the relief that he effectively achieved in VR 50 of 2020. There is certainly no utility, on the basis of the information presently available to me, in the Tribunal permitting a proceeding of that kind to proceed.
If the present proceeding, in VR 71 of 2021, is simply regarded as the commencement of a new proceeding, so that leave is not required, then I am not persuaded that the proceeding should be permitted to continue. The proceeding, in my view, is misconceived and should be dismissed under s 47 of the SAT Act.
Dr Nugawela has suggested that, although he effectively achieved his registration as a result of VR 50 of 2020, nevertheless, the Tribunal could inquire in some way into the underlying basis for the deregistration decision (a basis which the parties moved beyond, by virtue of the reconsideration of that decision and the grant of the registration) and that the Tribunal could somehow make some declaration in relation to that underlying issue, quite apart from whether it could make any orders. I do not accept that argument. It is an argument which, in my view, is misconceived and should not be permitted to take the Tribunal's time, nor the parties' resources, by being explored further.
In those circumstances, I do not intend to permit VR 71 of 2021 to continue.
However, I make this observation. If Dr Nugawela has some legal arguments in relation to issues 4 and 6, then it is open to him to raise such legal arguments as he wishes in relation to the Tribunal's determination of the proceeding in VR 53 of 2020. In making that observation, I do not in any way seek to convey any impression or any indication about the merits of his arguments. I do not necessarily fully understand them, but it is open to him to put such arguments as he wishes in relation to whether the Tribunal should determine those issues in VR 53 of 2020 in the way that the Board submits. In other words, the legal arguments, if there are any, can still be made by Dr Nugawela without the need to reinstate the proceeding in VR 50 of 2020 for that purpose.

Costs

The Board made an application for its costs in respect of the present application. I am not minded to make an order for costs.
The starting point in respect of costs in the Tribunal under s 87(1) of the SAT Act is that:
Unless otherwise specified in [the SAT Act], the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
In vocational regulation proceedings, costs are sometimes awarded in the event that a regulatory body is successful. However, this is a rather unusual and different kind of a case. The application made in VR 71 of 2021 has been found by me to be misconceived. However, I have taken into account the fact that Dr Nugawela is unrepresented. Clearly, he is having some difficulty dealing with some of the jurisdictional arguments that have arisen in respect of his application.
The matter has been dealt with on an expedited basis and the Board's costs have been kept as low as they reasonably could have been. In all of the circumstances, given the overlap between the issues in VR 71 of 2021 and the issues in VR 53 of 2020, the interests of justice do not warrant an order for costs.

Orders

I make the following orders:
1.Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the proceedings in VR 71 of 2021 are dismissed on the basis that they are misconceived, alternatively, to the extent that s 49 of the SAT Act applies, leave to commence the proceedings is refused.
2.There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JK
Research Associate to the Honourable Justice Pritchard
22 NOVEMBER 2021