Nugawela v Medical Board of Australia (WA Branch) - [2022] WASC 385

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   NUGAWELA -v- MEDICAL BOARD OF AUSTRALIA (WA BRANCH) [2022] WASC 385
CORAM:   ALLANSON J
HEARD:   14 NOVEMBER 2022
DELIVERED          :   16 NOVEMBER 2022
FILE NO/S:   GDA 11 of 2022
BETWEEN:   PATRICK NUGAWELA
Appellant

AND

MEDICAL BOARD OF AUSTRALIA (WA BRANCH)
First Respondent

AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY
Second Respondent

ON APPEAL FROM:
For File No:   GDA 11 of 2022
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   MS P LE MIERE, ORDINARY MEMBER
File Number            :   VR 53 of 2022

Catchwords:

Practice and procedure - Where applicant seeks leave to appeal against orders made in State Administrative Tribunal and applied for a stay pending determination of the appeal - Turns on facts

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
First Respondent	:	R Young SC
Second Respondent	:	R Young SC

Solicitors:

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

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

Chief Executive Officer, Department of Child Protection v 'S' [2007] WASCA 230
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203

ALLANSON J:

Introduction

The applicant is a medical practitioner.
On 16 June 2020, the Medical Board commenced disciplinary proceedings against the applicant in the Tribunal pursuant to the Health Practitioner Regulation National Law (WA) Act 2010.
At a mediation in the Tribunal on 8 September 2022, the applicant and the Medical Board agreed the substantive terms upon which the proceedings could be settled.
To give effect to that agreement, the Tribunal made orders that the applicant had behaved in a way that constitutes professional misconduct and reprimanded him pursuant to s 196(2)(a) of the National Law. The Tribunal further ordered that conditions be imposed on the respondent's registration under s 196(2)(b) of the National Law.
On 6 October 2022, the applicant lodged a notice of appeal to the Supreme Court. The grounds of appeal are lengthy, but are grouped into five categories:
1.Denial of Procedural Fairness
2.Ineffective legal representation
3.Unconscionable agreement
4.Deprivation of vocational livelihood
5.Conflict of laws (referring to the Bankruptcy Act 1966 (Cth) and the National Law).
The applicant seeks orders on appeal setting aside the orders made by the Tribunal and remitting the matter to the Tribunal for hearing. He also seeks renewal of his annual registration as a medical practitioner, and removal from the Australian Health Practitioners Regulation Agency website of the notice of conditions on his registration.
In the present application, the applicant seeks an order to stay the orders made by the State Administrative Tribunal pending his appeal against those orders.

The orders of the Tribunal

The orders of the Tribunal provided for both a reprimand and for conditions to be imposed on the applicant's registration as a health practitioner. In substance those conditions required that the applicant be supervised in his practice by another registered medical practitioner in respect of the maintenance and storage of clinical records and storage of medicines; that he undertake and successfully complete a program of education in relation to specified topics; and that within seven days of commencement of practice at any new place of practice, he provide specified contact details to the Australian Health Practitioners Regulation Agency.
The required education relates to recordkeeping and storage, the Medicines and Poisons Regulations 2016 (WA), including the storage of schedule 4 and schedule 8 medicines, transitioning/closing a practice, and good medical practice.
The nomination of a supervisor was required within 28 days of the imposition of the conditions, and the nomination of an education program within one month.
By s 225 of the National Law, the fact of the reprimand and the conditions on the applicant's registration are included on the National Register kept pursuant to that Act. The relevant content of the posting on the website was before the court in an affidavit filed on behalf of the Medical Board.

The stay application

On 31 October 2022, the applicant lodged an application for an interim order to stay the orders of the Tribunal pending the hearing of the appeal. The applicant filed an affidavit, sworn 31 October 2022, in support of application.
On 11 November 2022, the Medical Board filed an affidavit of Kerry‑Leigh Pallas, lawyer, in response to the stay application.
Ms Pallas deposes to her belief, based on inquiries, that:
(1)the applicant applied for renewal of his registration on 3 August 2022 (that is, before the mediation and orders in the Tribunal);
(2)the applicant's registration remains in force, pending a decision on the renewal application;
(3)the applicant has not nominated a supervising medical practitioner or a program of education as required by the conditions.
I infer that, unless the orders are stayed, the applicant's registration may not be renewed due to his failure to comply with the conditions.
By s 106 of the State Administrative Tribunal Act 2004 (WA), the court may stay the operation of a decision of the Tribunal, pending the determination of an application for leave to appeal and any appeal. Subject to any order made by the Supreme Court, an appeal does not affect the operation of the decision appealed against or prevent the taking of action to implement the decision.
In his affidavit in support of the application, and submissions at the hearing, the applicant puts forward the following reasons why a stay should be granted:
(1)to preserve the causes of action in the appeal, owing to the immediate effect of the orders and their publication on the AHPRA website;
(2)the events which gave rise to the disciplinary action were in 2018;
(3)the orders are not appropriate when there is no issue raised regarding his clinical practice, the clinical records are now kept on computer, and he does not keep sch 4 or sch 8 poisons in his practice;
(4)to preserve his vocational livelihood;
(5)the orders reproduce orders already considered and not granted by the Tribunal;
(6)there is a serious case to be tried and the orders would seriously affect any trial in the Tribunal should the matter be sent back to it;
(7)the publication of the orders is causing the applicant considerable stress and is a source of concern for his patients.
The affidavit has attached to it a letter from the applicant to the Pro Bono Scheme Coordinator of the Tribunal which sets out the applicant's account of the mediation and fleshes out the complaints in his grounds of appeal. The Medical Board, in my opinion properly, did not adduce evidence about events at the mediation for the purposes of the application.
The general principles which apply to an application for a stay were summarised in Eastland Technology Australia Pty Ltd v Whisson.[1] Those principles must, however, be adapted to the nature of the proceedings before the court and the Tribunal. In Chief Executive Officer, Department of Child Protection v 'S', Pullin JA discussed the principles which should guide the court on an application for a stay under s 106 where the decision on appeal does not concern money or property:
A stay maintains the status quo which existed before the tribunal made the orders under appeal. See Chief Executive Officer, Department for Child Protection v C [2007] WASCA 172 per Buss JA at [13].
The jurisdiction conferred by the SAT Act to grant a stay is unconfined by any express criteria. In Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308, 'generally applicable' principles or considerations relevant on a stay application were listed [9]. One of the considerations listed was whether or not, without the grant of a stay, the right of appeal would be rendered nugatory. This is particularly important where the judgment concerns money or property. See for example Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) [1986] HCA 13; (1986) 160 CLR 220 per Dawson J at 222 - 223. However, in a case where there is no property to be transferred nor money to be paid pursuant to the judgment, that consideration may be of little or no relevance. In this case a refusal of a stay would not render the appeal nugatory. The important considerations in this case are public interest considerations, the balance of convenience, whether the appeal has reasonable prospects of success and the principle that the respondent is entitled to the benefit of (or the 'fruits' of) the judgment appealed from. Public interest considerations will often be relevant when considering the right or freedom of a person to practice or work or fulfil a position pending a decision or appeal which calls that right or freedom into question. See for example Jemielita v The Medical Board of Western Australia (Unreported; WASC; Library No 920389; Ipp J; 24 July 1992) and Chief Executive Officer, Department for Child Protection v C [15].[2]
[1] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]. See also Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 [3].
[2] Chief Executive Officer, Department of Child Protection v 'S' [2007] WASCA 230 [5] ‑ [6].
The applicant is appealing from orders made to give effect to an agreed settlement. An appeal may still lie. But the applicant has not shown any patent defect in the orders made, and the court can, at this stage in the appeal proceedings, make no satisfactory evaluation of the merits of the applicant's complaints or his prospects of success. To do so would require the court to make findings about what happened at the mediation.
The refusal of a stay would not render the appeal futile. I can see no reason why the refusal of a stay would prejudice a hearing in the Tribunal should the appeal succeed.
The applicant's concern about publication on the AHPRA website is not, in my opinion, a compelling reason to stay the orders.
The applicant referred to earlier decisions of the Tribunal where, he said, orders of this kind were refused by the Tribunal. Those decisions related to an application to stay immediate action by the Medical Board under s 156(1)(a) of the National Law, and to whether the applicant's name should be published in the reasons on that application.
The considerations which guided the decision of the Tribunal in those applications included whether the applicant posed a serious risk to persons and whether it was necessary to take immediate action to protect public health and safety. Those considerations are not directly relevant in the appeal against a final decision of the Tribunal. I accept, however, that the need to protect public health and safety is relevant to the public interest considerations and to the balance of convenience.
The effect on the applicant's livelihood, while he fails to comply with the conditions imposed, is relevant but not sufficient to require the grant of a stay. First, the applicant is currently registered. He has not presented evidence that he was unable to comply with the conditions imposed by the Tribunal or that compliance would be unduly onerous. Second, the appeal can be heard relatively quickly. There is no evidence that the applicant would suffer irremediable prejudice from the refusal of a stay for that period. Third, the applicant has not shown how it would be in the public interest for him to practice unrestricted while the appeal is pending. On the facts agreed in the Tribunal, even if there is no immediate threat to public health or safety, the public interest is served by conditions requiring the applicant to be supervised in his practice and to receive the further education ordered.
Finally, the applicant challenges the process by which agreement was reached at mediation. But that issue requires the court to determine facts, and that cannot be done on this interim application. On the evidence before me on the stay application, I am not satisfied that the status quo should be disturbed.
The application will be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TB
Associate to the Honourable Justice Allanson
16 NOVEMBER 2022