Nugawela v Medical Board of Australia (WA Board)
[2022] WASCA 156
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NUGAWELA -v- MEDICAL BOARD OF AUSTRALIA (WA BOARD) [2022] WASCA 156
CORAM: MURPHY JA
MITCHELL JA
HEARD: 25 NOVEMBER 2022
DELIVERED : 25 NOVEMBER 2022
PUBLISHED : 29 NOVEMBER 2022
FILE NO/S: CACV 102 of 2021
BETWEEN: PATRICK ALLAN NUGAWELA
Appellant
AND
MEDICAL BOARD OF AUSTRALIA (WA BOARD)
First Respondent
AUSTRALIAN HEALTH PRACTITIONER AGENCY
Second Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: PRESIDENT PRITCHARD
Citation: NUGAWELA and MEDICAL BOARD OF AUSTRALIA [2021] WASAT 147
File Number : VR 71 of 2021
Catchwords:
Practice and procedure - Failure to comply with springing order - Application for extension of time - Not in interests of justice to grant leave for extension of time
Legislation:
Nil
Result:
Application refused
Appeal stands dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | H Cormann |
| Second Respondent | : | H Cormann |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Clayton Utz |
| Second Respondent | : | Clayton Utz |
Case(s) referred to in decision(s):
A v C [No 2] [2015] WASCA 199
Nugawela and Medical Board of Australia [2021] WASAT 147
REASONS OF THE COURT:
On 25 November 2022, we heard an application by the appellant dated 7 October 2022 to extend time to file and serve an appellant's case. The application for extension arose in the context that the appeal was dismissed on 16 September 2022 by reason of the appellant's failure to file and serve an appellant's case in accordance with a springing order made on 26 August 2022.
The appeal itself concerned an appeal against the orders made by Pritchard J in the State Administrative Tribunal (Tribunal) in proceedings commenced by the appellant in the Tribunal, VR 71 of 2021 (VR 71). Her Honour dismissed the proceedings in VR 71 on 12 October 2021 and provided ex tempore reasons, which were later published on 22 November 2021: Nugawela and Medical Board of Australia (primary decision).[1]
[1] Nugawela and Medical Board of Australia [2021] WASAT 147.
We dismissed the appellant's application for an extension of time to file and serve an appellant's case and said we would provide written reasons. These are our reasons.
Background
The background to the dismissal of VR 71 is as follows.
In May 2020, the appellant commenced proceedings VR 50 of 2020 in the Tribunal (VR 50), seeking a review by the Tribunal of a decision by the second respondent (AHPRA) not to renew his registration as a medical practitioner (deregistration decision). The VR 50 proceedings were practically resolved shortly thereafter when AHPRA reconsidered its decision and registered the appellant. On 30 June 2020, the appellant moved for orders in VR 50 in the Tribunal to the effect that he have leave to withdraw VR 50 and that the proceedings in VR 50 be withdrawn. The Tribunal then made orders on 30 June 2020 in the following terms:
1.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) [(SAT Act)] [the appellant] has leave to withdraw the proceeding and the proceeding is hereby withdrawn.
2.Each party is to bear its own costs.
Approximately 15 months later, on 20 September 2021, the appellant commenced the VR 71 proceedings in the Tribunal in which he sought orders as follows:
1.Reinstatement of VR 50, as a hearing de novo; and
2.Stay of VR 53 of 2020 pending the hearing above being separately determined.
The reference to VR 53 of 2020 was a reference to disciplinary proceedings commenced by the first respondent (Medical Board).
The primary decision
In dismissing VR 71, her Honour said:[2]
[2] Primary decision [12] - [19].
In this case, the proceeding in VR 50 of 2020 was withdrawn. The only decision that [the appellant] 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 [the appellant'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 [the appellant] has already achieved himself, namely, that the deregistration decision was set aside and a new decision made, to register [the appellant] as a medical practitioner. There would, therefore, be no utility in the 'reinstatement' (to use [the appellant'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 [the appellant] has said today, to be something different from securing [the appellant's] registration. In effect, [the appellant] is concerned that at least one of the issues that underlay the deregistration decision is now being litigated by the [Medical Board] as part of disciplinary proceedings in another matter in the Tribunal, in VR 53 of 2020.
[The appellant] 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) 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 [the appellant].
[The appellant] 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 [Medical Board]. The [Medical Board] has to prove the allegations that it brings against [the appellant] to the civil standard, bearing in mind the Briginshaw [v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 ‑ 362 (Dixon J)] explanation of the application of that standard. If it fails to do so, the [Medical Board's] proceeding, or those aspects of its grounds in which it fails, will be dismissed. [The appellant] does not have to prove anything at all in that context. In that sense I see no prejudice to [the appellant] if I do not 'reinstate' VR 50 of 2020.
Next, [the appellant] 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 [Medical Board] in VR 53 of 2020.
This application (in VR 71 of 2021) appears really to be motivated by a desire on [the appellant'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 [the appellant] 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 [the appellant], 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. (footnotes omitted)
The procedural history of this appeal
This appeal was instituted on 21 October 2021. On 26 October 2021, the appellant in effect sought a stay of proceedings in VR 53 of 2020 pending the determination of the appeal. On 27 October 2021, Buss P and Mazza JA dismissed that application.
No appellant's case was served in the time required by the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules). On 20 January 2022 the registrar extended the time for the appellant to file and serve an appellant's case to 4 March 2022. That extension was granted in a context where the appellant did not appear at the directions hearing, but a letter had been received from a psychiatrist indicating that the appellant was incapacitated by residual depression symptoms.
When no appellant's case was filed within the extended time, on 24 March 2022, the registrar issued a notice for the parties to attend court on 12 April 2022 to show cause why the appeal should not be dismissed for failure to file and serve an appellant's case.
On 8 April 2022, the appellant attempted to file an appellant's case which was not accepted for filing. On 11 April 2022 the appellant filed an application in the appeal for orders vacating the hearing listed for 12 April 2022 and listing the matter for a directions hearing no earlier than mid‑May 2022. That application was supported by an affidavit of the appellant deposing that he was still on medical leave and had been unable to complete his appellant's case. In that affidavit, the appellant said that he was unable to attend court on 12 April 2022. A letter from Professor Skerritt dated 20 January 2022, indicating that the appellant was 'unfit to deal with any legal matters now and for the next three months', was annexed to the affidavit.
On 12 April 2022, Buss P and Murphy JA made an order extending the time for the appellant to file and serve an appellant's case to 30 June 2022 and requiring the appellant to file and serve an appellant's case by then.
On 30 June 2022, the appellant lodged a document purporting to be an appellant's case. The document was not accepted for filing as it did not comply with the Rules. On 5 July 2022, the registrar wrote to the appellant explaining why the document did not comply with the Rules and had been rejected for filing.
Also on 5 July 2022, the registrar extended the time for the appellant to file and serve an appellant's case to 19 July 2022. On 19 July 2022, an order was made by consent further extending the time for the appellant to file and serve his appellant's case to 4.00 pm on 2 August 2022.
On 10 August 2022, no appellant's case having been filed, the registrar issued a further notice to attend on 26 August 2022 to show cause why the appeal should not be dismissed for failure to file and serve an appellant's case.
On 26 August 2022, the court extended the time for the appellant to file and serve an appellant's case to 16 September 2022 and ordered that the appeal be dismissed if an appellant's case was not filed and served by then.
On 4.00 pm, 16 September 2022, the appellant had not filed an appellant's case.
On 29 September 2022, Registrar Gilich issued a certificate of conclusion of the appeal on the basis that the appeal had been dismissed pursuant to the court's order of 26 August 2022.
On 7 October 2022, the appellant filed the application to extend time.
CACV 70 of 2022 - a further appeal by the appellant
Well over two years after the appellant moved for and obtained orders in VR 50 in the Tribunal that those proceedings be withdrawn, he commenced an appeal (CACV 70) against the orders made by the Tribunal on 30 June 2020 referred to in [5] above.
On 19 August 2022, the appellant filed an application to consolidate the present appeal (CACV 102 of 2021) with the appeal in CACV 70. That application was dismissed on 26 August 2022.
The appellant's application to extend time
The appellant's application to extend time filed 7 October 2022 was supported by an affidavit sworn by him on 5 October 2022. In that affidavit, the appellant stated:
1.The current appeal relates to VR71/2021 of the [Tribunal] ('SAT') which sought to reopen a withdrawn application VR50/2020.
2.The Court of Appeal ruled that the appeals for VR71 and VR50 were to be lodged separately and heard together.
3.I thought, incorrectly, that the merits of re-opening VR50 were to be part of the current application seeking it, failing to take into account that it was to be pleaded separately.
4.Since there is significant overlap between the two matters, inevitably I fell into the trap of appearing to plead both in a single application.
5.I tried to obtain a preliminary view from the Registry, but was not successful. In the past, I have been able to take an application to the registry and have the staff indicate whether it would be procedurally accepted or not. That is no longer available with the advent of electronic lodgements.
The appellant's minute of proposed appellant's case
In his affidavit, the appellant also annexed a minute of proposed appellant's case, including grounds of appeal as follows:
1.In VR 71 the primary judge erred in law in failing to determine and declare breaches of National Law by AHPRA/Medical Board by ultra vires cancellation of registration six months after it had been unconditionally renewed. The primary judge ought to have exercised jurisdiction to determine clear precedence that the AHPRA/Medical Board does not have legal power to cancel registrations and their actions were clearly ultra vires even though they subsequently reversed their decision and registration was only partially given effect.
2.The primary judge erred in law in failing to supply reasons for the order to withdraw the action. The primary judge ought to have exercised jurisdiction to bring a judgement [sic] and/or review decision upon reconsideration under [s 31 of the SAT Act]. From this, availability of other relief could be argued.
Principles
Principles concerning an application to extend time to comply with a springing order were summarised in A v C [No 2]:[3]
[3] A v C [No 2] [2015] WASCA 199 [2] ‑ [4].
It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity. See, for instance, MTQ Holdings Pty Ltd v Lynch[2007] WASC 49 [38] ‑ [57] and the cases there cited; TP Engineering Pty Ltd v JM [2015] WASCA 181 [53].
There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that discretion, the Court will normally have regard to at least the following matters:
(1)the circumstances in which the springing order came to be made;
(2)the reason for non-compliance with the springing order;
(3)the prejudice to the defaulting party if the time were not extended; and
(4)the prejudice to the other party if the time were extended.
It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits, there being no point in resuscitating a case that is devoid of merit. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court: MTQ Holdings; TP Engineering.
Disposition
It was our view that the appellant's application to extend time dated 7 October 2022 should be dismissed, for the following reasons.
First, the appellant's conduct of the appeal up to and including 16 September 2022 has been characterised by chronic delays, only part of which, in the period December 2021 to April 2022, could plausibly be explained by ill health. Secondly, there is no cogent explanation for failing to comply with the order of 26 August 2022. The matters referred to by the appellant in his affidavit in [23] above are difficult to accept at face value, and without further explanation, given that, on 26 August 2022, his application to consolidate this appeal with CACV 70 was dismissed. Thirdly, the proposed grounds of appeal do not engage with the judge's reasons in the primary decision. Ground 1 is expressed in sweeping terms, the meaning and effect of which (making due allowance for the appellant as an unrepresented litigant) is not evident. It is not a proper ground of appeal and the appeal against the primary decision could not sensibly proceed on the basis of proposed ground 1 as presently articulated. Ground 2 seems to be a complaint directed more to the adequacy of reasons given by the Tribunal in its decision on 30 June 2020 in giving the appellant leave to withdraw VR 50 and for ordering that VR 50 was thereby withdrawn. Such a complaint, even if it had merit - which appears to be doubtful, given that the appellant had moved for such orders on that occasion - could not reasonably arguably constitute a ground establishing error by the Tribunal in the primary decision on 12 October 2021. Again, the appeal could not sensibly proceed on that basis. Moreover, to the extent that the appellant has a complaint about the withdrawal of VR 50, his other appeal, in CACV 70, seeks to deal with that matter directly. An appellant's case in that matter is due on 9 December 2022. Fourthly, the submissions which the appellant has filed in support of his application for an extension of time identify a number of potential grounds of appeal which do not form part of his appellant's case. Although the appellant has attached a minute of his proposed appellant's case to his affidavit in support of his application for an extension of time, it would appear that the appellant's case is not in its final form.
Finally, there is no reason to think that any further extension of time would result in the production of an appellant's case containing reasonably arguable errors in relation to the primary decision. In all the circumstances, it is not in the interests of justice to grant leave to extend time.
Conclusion
For these reasons, on 25 November 2022 the court made the following orders:
1.The appellant's application filed 7 October 2022 for an extension of time is dismissed.
2.The appeal in CACV 102 of 2021 stands dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JL
Associate to the Honourable Justice Murphy
29 NOVEMBER 2022
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