Nugawela v Medical Board of Australia - [2023] WASCA 92

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NUGAWELA -v- MEDICAL BOARD OF AUSTRALIA [2023] WASCA 92
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   26 MAY 2023
DELIVERED          :   26 MAY 2023
PUBLISHED           :   29 MAY 2023
FILE NO/S:   CACV 110 of 2022
BETWEEN:   PATRICK ALLAN NUGAWELA
Appellant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   DEPUTY PRESIDENT JUDGE JACKSON
File Number            :   VR 21 of 2022

Catchwords:

Appeals - Practice and procedure - Application to State Administrative Tribunal for review of decision to take immediate action - Immediate action decision revoked - Review proceeding dismissed by State Administrative Tribunal - Appeal against order made by State Administrative Tribunal - Application for leave to appeal - Show cause - Whether any ground of appeal had a reasonable prospect of succeeding

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 155, s 156(1)(a), s 158, s 160(1), s 169, s 199(1)(e)

State Administrative Tribunal Act 2004 (WA), s 27, s 29, s 31, s 47(2), s 87, s 105
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)

Result:

Application for leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	H Cormann

Solicitors:

Appellant	:	In Person
Respondent	:	Clayton Utz

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

Bernadt v Medical Board of Australia [2013] WASCA 259
Centex Australia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97

REASONS OF THE COURT:

Overview

This matter came to a hearing on 26 May 2023 to consider the appellant's application for leave to appeal and to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (CA Rules) on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
The appellant, a medical practitioner, appeals against an order made by the State Administrative Tribunal (Jackson DP) on 13 September 2022 to dismiss a review proceeding commenced by the appellant. The order for dismissal was made pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on the basis that the proceeding was misconceived.
After hearing from the parties we ordered that leave to appeal was refused and the appeal was dismissed. We said that we would publish reasons for those orders in due course. These are our reasons for those orders.

Background: the Board's decision and its revocation

On 1 April 2022, the respondent, the Medical Board of Australia (Board), informed the appellant of its decision to exercise the power under s 156(1)(a) of the schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law) to take 'immediate action'[1] to impose conditions on the appellant's registration. Seven conditions were imposed. These included requirements that the appellant obtain approval from the Board for his place of practice and that the appellant allow the Board to obtain reports about him from a senior person in that practice.
[1] The term 'immediate action' is defined in s 155 of the National Law. It includes, by s 155(a), the imposition of a condition on a health practitioner's registration.
The Board's letter notifying the appellant of the decision to take immediate action also informed the appellant that the Board had decided to investigate him (see National Law s 160(1)) and required him to undergo a health assessment (see National Law s 169). The appellant has referred to these additional matters as the Board's decision to take 'further action' (see eg [8.2] below).
On 11 April 2022 the appellant applied to the Tribunal seeking review of the Board's decision to take immediate action.
The application to the Tribunal identified that it was made pursuant to s 199(1)(e) of the National Law. Consistently with the terms of s 199(1)(e), the appellant characterised this as:
Review of a decision to impose or change a condition on a person's registration or endorsement of their registration.
The appellant sought four orders in his application to the Tribunal:
1.Dismissal of action by [the Board] to impose conditions of [sic] registration.
2.Stay of immediate action and further action brought by the Board under the current notification.
3.Removal of text on public register pertaining to condition of [sic] registration.
4.Deal with the current action together with existing action (VR53/2020). s 153.
The appellant sought a stay of the Board's decisions pending the outcome of the review proceeding.
On 10 May 2022 the Tribunal granted a stay of the respondent's decision to take immediate action ‑ ie there was a stay of the decision to impose conditions on the appellant's registration. However, the Tribunal held it had no power to stay the Board's decision to investigate the appellant or to require the appellant to undertake a health assessment (ie the 'further action' matters). The Tribunal held that the investigation of the appellant under s 160 of the National Law and the requirement that he undergo a health assessment pursuant to s 169 of the National Law were matters that were beyond the jurisdiction of the Tribunal to review (and, therefore, to stay).[2]
[2] A Practitioner and Medical Board of Western Australia [citation redacted] [4], [40] - [48], [108].
On 31 May 2022 the Tribunal invited the Board to reconsider its decision to take immediate action under s 156(1)(a) of the National Law. That invitation was made pursuant to s 31(1) of the SAT Act. Section 31(1) provides that at any stage of a proceeding for the review of a reviewable decision the Tribunal may invite the decision maker to reconsider the decision.
By letter dated 21 July 2022 the Board's legal representatives informed the appellant that the Board had reconsidered its decision and had resolved to revoke it. The letter also provided:
The effect of the Board's decision to revoke the [immediate action decision] is the conditions imposed on your registration under section 156 of the National Law are lifted.
The Board notes that:
(a)its decision to revoke the [immediate action decision] was made on the basis that, on the information presently available, the Board no longer holds a reasonable belief that you pose a serious risk to persons such that immediate action is currently necessary;
(b)despite the decision to revoke the [immediate action decision], the Board remains concerned as to your health;
(c)the investigation is ongoing; and
(d)the Board will consider substantive regulatory action on the conclusion of the investigation.
Please accept this letter as notice of the Board’s reconsidered decision.

The Tribunal's dismissal of the review proceeding

On 29 July 2022 the Tribunal invited the appellant to file submissions as to the effect of the Board's 'reconsideration decision' on the review proceeding.
The appellant's submissions were filed on 29 August 2022. The appellant submitted that, pursuant to s 31(2)(c) of the SAT Act, a reconsideration decision must both set aside a decision and substitute a new decision. In the appellant's view, the Board had set aside its decision to take immediate action but had not substituted a new decision. It followed, according to the appellant, that there was no reconsideration decision for the purposes of s 31(2)(c).
On 13 September 2022 the Tribunal made its order dismissing the review proceeding under s 47(2) of the SAT Act. The Tribunal gave oral reasons for that order. The reasons were transcribed and provided to the appellant in accordance with s 79 of the SAT Act.
In the Tribunal's opinion, the reconsideration decision not to take immediate action was as much a decision as the Board's original decision to take immediate action (ts 3). The Tribunal explained:
[I]n making the reconsideration decision the [Board] determined to set aside its original decision of 1 April 2022 to take immediate action and substitute it with a decision not to take immediate action. The result is that the reconsidered decision is the subject of s 31(3) of the SAT Act.[3]
[3] ts 3.
Section 31(3) of the SAT Act is reproduced at [38] below.
Accordingly, in the Tribunal's view, the appellant having not withdrawn his application, the review proceeding continued as if the reconsideration decision was the subject of the proceedings (ts 4). The Tribunal then referred to its duty to ensure that every proceeding before it is and remains within its jurisdiction to hear and determine (ts 4). The Tribunal's jurisdiction to hear the review proceeding arose from s 199(1)(e) of the National Law. This states:
A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision[4] to the appropriate responsible tribunal [relevantly the State Administrative Tribunal][5] for the appellable decision:
…
(e)a decision by a National Board to impose or change a condition on a person's registration or the endorsement of the person's registration …
[4] Section 11 of the Health Practitioner Regulation National Law (WA) Act provides, in effect, that a reference to an 'appeal against a decision' is, for an appeal to the Tribunal as the responsible tribunal, a reference to a review of the decision as provided under div 3 of pt 3 of the SAT Act. Accordingly, an 'appellable decision' within s 199(1) of the National Law is, relevantly and in effect, a 'reviewable decision' for the purposes of the SAT Act. See SAT Act s 17(3).
[5] Health Practitioner Regulation National Law (WA) Act s 6.
The Board's original decision was a decision under s 156(1)(a) of the National Law to impose conditions on the appellant's registration. But the reconsideration decision determined not to impose conditions on the appellant's registration. On this basis, having determined that none of the other matters in s 199(1) of the National Law were engaged, the Tribunal concluded that the Board's reconsideration decision was not an appellable decision within the meaning and for the purpose of s 199(1) of the National Law. Accordingly, the Tribunal lacked jurisdiction to review the Board's reconsideration decision (ts 4 ‑ 5).
The Tribunal dismissed the appellant's application pursuant to s 47(2) of the SAT Act on the basis that the application for review was misconceived in light of the reconsideration decision (ts 5).

The appeal

The appellant has sought leave to appeal against the Tribunal's order of 13 September 2022 dismissing the review proceeding.
There are four proposed grounds of appeal. They traverse four pages and are, with respect to the appellant, unnecessarily verbose and tendentious. In substance:
1.By ground 1 the appellant contends that the Tribunal erred in law in finding that the reconsideration decision was a substituted decision for the purpose of s 31(2)(c) of the SAT Act.
2.Ground 2 is in part repetitive of ground 1. Ground 2 need not be summarised so far as it simply repeats the substance of ground 1. Separately, by ground 2, the appellant contends that the Tribunal erred in law in dismissing the review proceeding under s 47(2) of the SAT Act as the Board's reconsideration decision continued with the Board's 'further action' (apparently referring to the Board's decision to investigate the appellant and to require the appellant to undergo a health assessment).[6]
3.By ground 3 the appellant contends that the Tribunal erred in law by failing to consider new material which did not exist at the time of the Board's decision on 1 April 2022, namely, a letter from Professor Skerritt dated 5 April 2022.
4.By ground 4 the appellant contends that the Tribunal erred in law by failing to exercise powers under s 87 of the SAT Act for compensation requested by the appellant.
[6] See appellant's submissions par 1(iii).
In so summarising the proposed grounds of appeal we are conscious that there are numerous strands of argument in the particulars to the grounds which self-evidently exceed the scope of each ground. For example, as to ground 1, there is a particular contending that the Tribunal erred in law by conflating the term 'appellable decision' in s 199(1) of the National Law with the term 'reviewable decision' in the SAT Act.[7] It is not necessary to refer to these additional arguments. The purpose of particulars to a ground of appeal is to clarify and explain the ground. They cannot independently amount to a separate ground of appeal. It is not necessary to address the various particulars where they exceed the scope of the ground of appeal.
[7] Ground of appeal par 1(viii). This complaint is self-evidently misconceived. See fn 4 above.
The appellant's orders wanted on the appeal are confused and confusing. The appellant seeks various matters described as 'confirmation and declaratory judgement' (sic). In substance the appellant seeks orders of this court confirming that his understanding of the alleged wrongful acts and decisions of the Board and the Tribunal is correct. Otherwise the appellant seeks remission of the matter to the Tribunal to be reheard according to law.

The necessity for leave to appeal

Section 105(1) of the SAT Act provides:
A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
The appeal can only be brought on a question of law.[8] The decision of the Tribunal to dismiss the review proceeding was made by the Tribunal constituted by a judicial member. Accordingly, any appeal lies to this court.[9]
[8] SAT Act s 105(2).
[9] SAT Act s 105(3).
The power to grant leave to appeal is conferred in general terms. It is not restricted or qualified. Leave to appeal should be granted if, in all of the circumstances, it is in the interests of justice that there be a grant of leave.[10]
[10] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [16].
There are no rigid or exhaustive guidelines governing the grant of leave. In general, however, an applicant for leave must show that there is sufficient doubt to justify the grant of leave and that allowing the error to go uncorrected would impose substantial injustice. The latter is more readily satisfied where the order under appeal is a final order.[11]
[11] Centex Australia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [106].

The appellant's argument as to leave to appeal

The appellant's appeal notice recognised that he required leave to appeal. However, the appellant's case did not address why there should be leave to appeal. Accordingly, the registrar issued a notice to attend to consider the application for leave to appeal.
The appellant was invited to make oral submissions in support of the application for leave to appeal. The court informed the appellant of the matters that are generally taken into account in determining whether there should be leave to appeal. In response to that invitation:
1.The appellant submitted that there were questions that he wanted to have answered.
2.The appellant reiterated, orally, the effect of his written submissions in support of the grounds of appeal.

Disposition

It is not in the interests of justice to grant leave to appeal against the Tribunal's decision to dismiss the review proceeding. The proposed grounds of appeal do not establish sufficient doubt as to the correctness of the Tribunal's decision to justify leave to appeal. Nor has it been shown that leaving the Tribunal's order unreversed would impose substantial injustice.

The Tribunal's decision is not attended by sufficient doubt to warrant leave to appeal

We are not satisfied that the Tribunal's decision is attended by sufficient doubt to justify leave to appeal. Indeed, none of the grounds of appeal have a reasonable prospect of succeeding. We will examine each of the grounds in turn.
Ground 1 essentially repeats the appellant's argument before the Tribunal (see [14] above). Additionally, in his appellant's case the appellant contended that the Tribunal failed to recognise that a decision to take further action was a mandatory obligation and integral component of the decision to take immediate action. The appellant thus said that by failing to withdraw the further action decision the Board's revocation by its reconsideration decision was conditional. The appellant went as far as to say that the Board continued its immediate action through the further action. The Tribunal was alleged to have erred by misconstruing s 31(2)(c) of the SAT Act and enabling the Board to uncouple the immediate action and the further action allowing the 'inseparable' further action to continue with no recourse.[12]
[12] Appellant's submissions pars 1(xxvi), (xxviii) - (xxxvii).
The appellant's additional argument in support of ground 1 was advanced independently of ground 2 even though it is redolent of the error alleged by ground 2.
Insofar as ground 1 repeats the appellant's argument before the Tribunal we are satisfied that the Tribunal correctly construed and applied s 31(2)(c) of the SAT Act for the reasons given by the Tribunal. To explain why this is so it is necessary to set out a little more of the statutory framework.
Part 3 of the SAT Act deals with the Tribunal's jurisdiction. The application brought by the appellant fell within the Tribunal's review jurisdiction (SAT Act pt 3 div 3). In exercising its review jurisdiction the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act - here, relevantly, the National Law (SAT Act s 18(1)). The review is to be by way of a hearing de novo (SAT Act s 27(1)) to produce the correct and preferable decision at the time of the decision on the review (SAT Act s 27(2)). The Tribunal's powers in its review jurisdiction include the power to affirm, vary or set aside the decision being reviewed. Where the Tribunal sets aside the decision it may substitute its own decision or send the matter back to the decision-maker for reconsideration (SAT Act s 29(3)). Any such reconsidered decision is also open to review by the Tribunal (SAT Act s 29(4)). It should be observed that a reconsidered decision of the kind referred to in s 29(3)(c)(ii) and s 29(4) of the SAT Act is different to a substituted new decision of the kind that arises on the Tribunal inviting the decision-maker to reconsider its decision under s 31 of the SAT Act.
After a review proceeding is commenced, s 26 of the SAT Act restricts the decision-maker's powers in respect of the decision under review:
After the commencement of a proceeding for the review of a decision the decision-maker cannot:
(a)vary the decision; or
(b)set aside the decision and substitute its new decision,
unless:
(c)that is permitted by the enabling Act; or
(d)the parties to the proceeding consent; or
(e)the decision-maker is invited under section 31 to reconsider the decision.
It will be recalled that, in the present case, the Tribunal invited the Board to reconsider its decision to take immediate action under s 156(1)(a) of National Law. There was, importantly, no invitation to the Board to reconsider its decision to take further action (this is unsurprising - as will be seen the Board's decision to take further action was not a reviewable decision). The Tribunal's invitation was made pursuant to s 31(1) of the SAT Act. Section 31 goes on to provide:
(2)Upon being invited by the Tribunal to reconsider the reviewable decision, the decision-maker may:
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision and substitute its new decision.
(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.

The question raised by ground 1 is whether the Board's reconsideration decision was a decision to 'set aside the [immediate action] decision [of 1 April 2022] and substitute its new decision' (emphasis added) within the meaning of s 31(2)(c) of the SAT Act.
The Board's decision of 21 July 2022 plainly set aside its decision of 1 April 2022 to take immediate action. The letter dated 21 July 2022 stated that the decision to take immediate action was revoked. But the appellant argued that this was insufficient. The appellant contended that there were two requirements under s 31(2)(c). The Board had to both set aside its decision and substitute a new decision. According to the appellant, the Board had not substituted a new decision.
We disagree. The Board substituted its 1 April 2022 decision to take immediate action, by imposing conditions on the appellant's registration, with a new decision on 21 July 2022 not to take immediate action. The appellant did not withdraw the review proceeding in the face of the substituted new decision. Accordingly, by operation of s 31(3) of the SAT Act, the review proceeding was taken to be a proceeding for the review of the substituted new decision of 21 July 2022 not to take immediate action. But, as the Tribunal correctly held, such a decision is not an appellable decision within s 199(1) of the National Law. It followed that the Tribunal was without jurisdiction.
The analysis is not affected by the appellant's additional argument in support of ground 1 as summarised at [33] above.
It is quite wrong to say that the Board continued its immediate action through the further action. The substituted new decision of 21 July 2022 unequivocally revoked the decision to take immediate action. The conditions imposed on the appellant's registration were removed. Nor was the substituted new decision conditional. The revocation of the 1 April 2022 decision to take immediate action was unqualified.
In this respect, in pointing to and relying on the decision to take further action, the appellant's additional argument incorrectly conflates the Board's 1 April 2022 decision to take immediate action and the Board's subsequent decision (of the same day) to take further action. It is incorrect to characterise the Board's decision to take further action as an 'integral component' of the decision to take immediate action.[13] The Board's decision to take immediate action must be distinguished from its decision to take further action. The distinction is readily apparent from s 158(1) of the National Law. This provides:
Immediately after deciding to take immediate action in relation to a registered health practitioner …, the National Board must:
(a)give written notice of the Board’s decision to the health practitioner or student; and
(b)take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner or student or requiring the practitioner or student to undergo a health or performance assessment.
[13] Compare: grounds of appeal par 1(iv); appellant's submissions par 1(xxix).
The taking of further action under pt 8 of the National Law, as provided for in s 158(1)(b), is to occur 'immediately after' the decision to take immediate action. The decision to take further action is different from the decision to take immediate action.
The distinction between 'immediate action' and 'further action' is maintained in s 158(2) of the National Law.
The notice [ie the notice required by s 158(1)(a)] must state:
(a)the immediate action the National Board has decided to take; and
(b)the reasons for the decision to take the immediate action; and
(c)the further action the National Board proposes to take under this Part in relation to the health practitioner or student; and
(d)that the registered health practitioner or student may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner’s or student’s registration; and
(e)how an application for appeal may be made and the period within which the application must be made. (emphasis added)
Accordingly, a decision is made to take immediate action. The Board must then give written notice of that decision to the practitioner, which notice is to state the matters prescribed in s 158(2). The Board must also take the 'further action' under pt 8 of the National Law as the Board considers appropriate.[14] This may include, for example, investigating the practitioner or requiring the practitioner to undergo a health assessment. But the further action the Board determines to take (and takes) is separate and distinct from the immediate action. The decision to take further action follows, and thus is separate to, the decision to take immediate action. The decision to take immediate action precedes the decision as to what further action is appropriate.[15]
[14] As to the available types of 'further action' see Bernadt v Medical Board of Australia [2013] WASCA 259 [40].
[15] Bernadt v Medical Board of Australia [80], [160], [281].
The appellant argued that the taking of further action is a mandatory obligation where the Board decides to take immediate action.[16] There is support for that view in the separate reasons of Newnes JA[17] and Murphy JA[18] in Bernadt v Medical Board of Australia. Equally, however, as McLure P observed in the same case, a number of the matters within the scope of immediate action leave little or no room for further action under pt 8.[19] Consistently with that observation her Honour held that the Board is not required to take further action in all cases in which it has made a decision to take immediate action.[20]
[16] Appellant's submissions par 1(ix).
[17] Bernadt v Medical Board of Australia [150] - [155].
[18] Bernadt v Medical Board of Australia [290] - [291], [296]. But compare [297].
[19] Bernadt v Medical Board of Australia [47].
[20] Bernadt v Medical Board of Australia [69], [75] - [77]. See also [70] - [74].
It is not necessary to resolve the apparent conflict of views expressed in Bernadt v Medical Board of Australia. In the present case the Board did decide that it was appropriate to take further action immediately after the immediate action decision. In any event, even if there was a failure to comply with the notice requirement under s 158(2)(c) of the National Law (which there was not as the Board's notice of 1 April 2022 stated the further action the Board proposed to take) that failure does not invalidate the decision to take immediate action.[21]
[21] Bernadt v Medical Board of Australia [79], [156], [158] - [163], [299].
The point for present purposes is that - contrary to the appellant's additional argument in support of ground 1 ‑ it is not the case that the Board's decision to take further action was an integral component of the decision to take immediate action. There were two separate and distinct decisions. The first decision (ie the decision to take immediate action) was a reviewable decision and was the subject of the review proceeding. The second decision (ie the decision to take further action) was not a reviewable decision and was not the subject of the review proceeding (something we will return to in dealing with ground 2). The Tribunal did not err in construing and applying s 31 of the SAT Act by reference alone to the Board's decision of 1 April 2022 to take immediate action and the substituted new decision of 21 July 2022 not to take immediate action.
Ground 1 does not have a reasonable prospect of succeeding. To the contrary it is doomed to fail.
Ground 2 must also inevitably fail. Insofar as ground 2 raises a separate point to ground 1 it is implicitly premised on the contention that the review proceeding also challenged the Board's decision to take further action and this was not set aside by the substituted new decision of 21 July 2022 not to take immediate action.[22] The appellant contended that the Tribunal should not have dismissed the review proceeding but instead should have proceeded with a review of the decision to continue with the further action decision.[23]
[22] See eg appellant's submissions par 2(v) - (vi).
[23] Appellant's submissions par 2(ix).
We accept that the Board's reconsideration decision of 21 July 2022 did not affect the Board's earlier decision to take further action. However, it does not follow that the Tribunal erred in dismissing the review proceeding for want of jurisdiction. That could only be the case if the Board's decision to take further action was part of the review proceeding.
We have already explained why the Board's decision of 1 April 2022 to take immediate action was a separate and distinct decision to the Board's decision to take further action. The reverse is also true: the Board's decision to take further action was a separate and distinct decision to the Board's decision to take immediate action.
The details of the appellant's application dated 11 April 2022 are referred to at [7] - [8] above. In identifying the reviewable decision the subject of the application the appellant only mentioned the Board's decision to take immediate action - the application sought 'review of a decision to impose … a condition on [the appellant's registration]'. The appellant also made specific mention of s 199(1)(e) of the National Law. It is true that, in specifying orders sought, the appellant sought a stay of both the 'immediate action' and the 'further action'. But, looking beyond that interim relief to the final relief that was sought, what the appellant wanted was 'dismissal of action … to impose conditions [on] registration' and 'removal of text on public register pertaining to condition[s] [on] registration'.
Accordingly, properly understood, the subject matter of the review proceeding - the relevant 'reviewable decision' - was solely the Board's decision of 1 April 2022 to take immediate action. The review proceeding did not include the Board's decision to take further action.
Nor, as a matter of law, was it possible for the appellant to apply for review of the Board's decision to take further action. Neither the Board's decision to investigate the appellant (made under s 160(1) of the National Law) nor the Board's decision to require the appellant to undertake a health assessment (made under s 169 of the National Law) was an 'appellable decision' as listed in s 199(1) of the National Law. The Board's decision to take further action was not something that the National Law gave the Tribunal jurisdiction to deal with as a reviewable decision.
The Board's decision to take further action was not and could not be part of the review proceeding in the Tribunal. It follows that ground 2 cannot succeed.
The appellant's submissions in support of ground 2 also relied on s 29(4) of the SAT Act. The appellant said that the Tribunal should have exercised jurisdiction under s 29(4).[24] Section 29(4) of the SAT Act was never applicable. The Tribunal and the Board acted pursuant to s 31 of the SAT Act. At no time did the Tribunal exercise the power under s 29(3)(c)(ii) of the SAT Act. In the absence of a decision made on a reconsideration as contemplated by s 29(3)(c)(ii) there is no scope for the operation of s 29(4) of the SAT Act.
[24] Appellant's submissions pars 2(vii) - (viii).
Ground 2 does not have a reasonable prospect of succeeding. It must fail.
Ground 3 is without merit. It is true that in dismissing the review proceeding on 13 September 2022 the Tribunal did not consider Professor Skerritt's letter dated 5 April 2022. But that letter was immaterial to the exercise of statutory construction and characterisation of the Board's reconsideration decision of 21 July 2022 as informed the Tribunal's decision to dismiss the review proceeding as misconceived. Ground 3 does not have a reasonable prospect of succeeding. On the contrary, it must fail.
Ground 4 alleges that the Tribunal erred by failing to exercise its power under s 87 of the SAT Act. Section 87(2) of the SAT Act empowers the Tribunal to make an order that one party pay all or any of the costs of another party. Section 87(3) of the SAT Act clarifies that the relevant power includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
The application did not seek a costs order under s 87 of the SAT Act (see [7] - [8] above). However, in the appellant's submissions dated 29 August 2022 he stated, without any explanation, that in terms of the 'outcome sought' the appellant 'seeks an order for compensation'. The appellant did not state in what amount, or on what basis, he sought an order for compensation. There was no invocation of s 87 of the SAT Act. In any event, that statutory provision, while using the words 'to compensate' within s 87(3), is properly understood as being concerned with costs rather than compensation per se.
We accept that the Tribunal did not consider whether it should make a costs order under s 87 of the SAT Act in favour of the appellant. But nor, in our view, was there any appellable error on the part of the Tribunal in failing to address the issue. The single line referring to an order for compensation in an 8‑page set of written submissions was manifestly inadequate to raise for determination by the Tribunal whether there should be a costs order under s 87 of the SAT Act. The appellant made no mention of s 87 of the SAT Act; nor did he mention costs in terms. The Tribunal cannot commit an appellable error in failing to consider and make an order for costs under s 87 of the SAT Act where, viewed objectively, the matter was not raised by the appellant for determination.
Ground 4 does not have a reasonable prospect of succeeding. It must inevitably fail.

No substantial injustice in allowing the Tribunal's decision to stand

The appellant will not suffer substantial injustice if the Tribunal's decision remains unreversed.
The appellant has, in practical effect, obtained what he sought by commencement of the review proceeding in the Tribunal: the appellant has successfully obtained the removal of the conditions that were imposed on the appellant's registration as a result of the Board's decision to take immediate action.
There is, in our view, no substantial injustice in being required to undergo a health assessment. In any event, based on what is stated by the appellant in his written submissions in the appellant's case, it appears that the appellant has already attended his appointment for a health assessment.[25]
[25] Appellant's submissions par 3(vi).
Nor is there substantial injustice in the Board deciding to investigate the appellant. Any such investigation may, or may not, result in the Board deciding to take immediate action. Alternatively, it may, or may not, result in the Board taking some other action under pt 8 of the National Law. Any adverse consequence suffered by the appellant will be caused by the Board's future (as yet uncertain) action rather than the Board deciding to investigate the appellant.
In any case, the appellant will be able to exercise his rights under the National Law and the general law if, properly advised, he considers that any such future action is unjustified.

Conclusion and orders

The appellant did not persuade us that this was a case where leave to appeal should be granted. In any event, the appeal was one that ought to be dismissed pursuant to r 43(2)(g)(i) of CA Rules as none of the grounds of appeal had a reasonable prospect of succeeding.
For these reasons, at the conclusion of the hearing on 26 May 2023, we made orders that:
1.The appellant's application for leave to appeal against the order of the State Administrative Tribunal made 13 September 2022 in matter number VR/21/2022 is refused.
2. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Vaughan
29 MAY 2023