Nugawela v Medical Board of WA - [2024] WASC 100

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   NUGAWELA -v- MEDICAL BOARD OF WA [2024] WASC 100
CORAM:   COBBY J
HEARD:   20 FEBRUARY 2024
DELIVERED          :   3 APRIL 2024
FILE NO/S:   CIV 1636 of 2023
BETWEEN:   PATRICK ALLAN NUGAWELA
Plaintiff

AND

MEDICAL BOARD OF WA
Defendant

Catchwords:

Abuse of process - Application for summary judgment - Order 16 r 1 & Order 20 r 19 - Rules of the Supreme Court 1971 (WA)

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Medicine and Poison Regulations 2016 (WA)
Rules of the Supreme Court 1971 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	Ms H M Cormann

Solicitors:

Plaintiff	:	In Person
Defendant	:	Clayton Utz

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

Attorney-General (NSW) v Quin (1990) 170 CLR 1
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Bernadt v Medical Board of Australia [2013] WASCA 259
Gerovich v Gerovich [2018] WASC 153
Jebb (as trustee for Trafalgar Investment Trust) v Superior Lawns Australia Pty Ltd [2019] WASC 121
Macksville & District Hospital v Mayze (1987) 10 NSWLR 708
Nugawela v Medical Board of Australia [2023] WASAT 82
Nugawela v Medical Board of Western Australia [2022] WASC 385
Nugawela v Medical Board of Western Australia [2024] WASC 15
Re Carey ex parte Exclude Holdings Pty Ltd [2006] WASCA 219, (2006) 32 WAR 501
Re the State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125
Reynolds v Reynolds [1977] 2 NSWLR 295
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77

COBBY J:

On 12 May 2023 the defendant decided to take immediate action against Mr Nugawela under s 156 of the Health Practitioner Regulation National Law (the National Law) by suspending his registration as a medical practitioner.
The plaintiff commenced these proceedings by writ of summons filed 16 June 2023. As filed, the writ disclosed no more than that Mr Nugawela sought injunctive relief for '(a) Suspension of Registration (b) Orders Tribunal under appeal as GDA11/2022'.
Mr Nugawela thereafter filed a chamber summons on 21 June 2023, which named the Australian Health Practitioner Regulation Agency (AHPRA) as second defendant notwithstanding that the writ had made no mention of it, and a second writ of summons in these proceedings on 12 July 2023, again referring to AHPRA as second defendant.
On 21 July 2023 the plaintiff filed a document titled 'Notice of originating motion' in the proceedings, which made no mention of AHPRA. Mr Nugawela confirmed to Forrester J that document should be regarded as setting out his claims in these proceedings on 24 July 2023.
Mr Nugawela's originating motion claims orders as follows:
1.Dismissal of the Immediate Action decision of the Medical Board of 12 May 2023 under s 156 National Law, made retrospective to that date.
2. Restoration of Dr Nugawela's medical registration to its full and unconditional status that existed prior to 12 May 2023.
3. The orders of the State Administrative Tribunal of 8 September 2022 currently on appeal under GDA 11/2022 WA Supreme Court, be stayed until the appeal is heard and determined.
4. Dismissal of the SAT s 47 application by the respondents to dismiss the review action on foot for renewal of an existing registration (SAT VR 21/2023).
5. Costs and compensation issues to be deferred to a separate hearing. The SAT Act s 105(13) applies.
The defendant entered its appearance in these proceedings on 23 June 2023.
By a chambers summons filed 11 August 2023 the defendant applied for orders dismissing Mr Nugawela's claims in the court's inherent jurisdiction on the basis that they constitute an abuse of the court's process or pursuant to O 16 r 1(1) alternatively O 20 r 19(1), Rules of the Supreme Court 1971 (WA).
On one view, the defendant was required to bring any application for summary judgment pursuant to O 16 r 1 by no later than 14 July 2023. Assuming (without deciding) that was the position, it is appropriate to grant any extension of time which might be required by the defendant to bring its application, having regard to the uncertainty arising from Mr Nugawela having filed multiple originating processes in the one action.
The events giving rise to these and other proceedings instituted by Mr Nugawela against the defendant were recently summarised by Lemonis J in Nugawela v Medical Board of Western Australia[1] at [5] ‑ [15] and [18] ‑ [73]. I gratefully adopt his Honour's summary, which I do not repeat here.
[1] Nugawela v Medical Board of Western Australia [2024] WASC 15.
Relevantly for present purposes, the statement of agreed facts referred to at [63] and [64] of Lemonis J's reasons for decision recorded that the parties agreed, amongst other things, that:
1.Mr Nugawela ceased to have control of the premises at which he had formerly carried out medical practice on or around 21 June 2018 when a mortgagee took possession of that property;
2.an inspection of those premises after Mr Nugawela had ceased practice revealed that patient medical records were not appropriately stored;
3.the inspection also showed that sch 4 medicines (i.e. prescription only drugs) were not stored in a locked container, cabinet or room as required by the Medicine and Poison Regulations 2016 (WA) and that a sch 8 medicine (i.e. a drug that can only be supplied on prescription and which is subject to tight restrictions due to its potential to produce addiction) was not stored in a small safe as required by those regulations;
4.Mr Nugawela had failed to destroy or make suitable arrangements for the destruction of medications at his practice after his eviction from the premises, as required by the Department of Health;
5.Mr Nugawela failed to provide information required of him by the defendant within the time permitted to do so, and, at least in some instances, at all.
It was also agreed that Mr Nugawela's conduct, as set out in the statement of agreed facts, had caused no harm to his patients.
As recorded by Lemonis J, the Tribunal made orders on the basis of the statement of agreed facts to the effect that, amongst other things, Mr Nugawela be supervised in respect of the maintenance and storage of clinical records and storage of medicines. That supervision involved Mr Nugawela consulting with the supervisor by telephone or other means of telecommunication regarding, and the supervisor being available to attend Mr Nugawela's workplace to observe and discuss, the maintenance and storage of clinical records and medicines.
Mr Nugawela did not engage a supervisor as required by the 8 September 2022 orders. He continued to carry on practice notwithstanding his noncompliance with those orders.
On 6 October 2022, Mr Nugawela commenced appeal GDA 11 of 2022 in this court against the orders made by the Tribunal on 8 September 2022, notwithstanding that they had been made by consent.
On 16 November 2022, Mr Nugawela's application in GDA 11 of 2022 for a stay of the Tribunal's orders was denied by Allanson J: see Nugawela v Medical Board of Western Australia.[2]
[2] Nugawela v Medical Board of Western Australia [2022] WASC 385.
It appears that in February 2023 the defendant became aware that Mr Nugawela was continuing to practise as a result of submissions made by Mr Nugawela in other proceedings between the parties.
On 20 April 2023 the defendant wrote to Mr Nugawela notifying him that it proposed to take immediate action to suspend his registration under s 156 of the National Law.
Section 156(1)(a) of the National Law empowers the defendant to take immediate action in relation to a registered medical practitioner if the defendant reasonably believes that the practitioner poses a serious risk to persons because of the practitioner's conduct, performance or health and that it is necessary to take immediate action to protect public health or safety.
In its letter to Mr Nugawela dated 20 April 2023, the defendant stated that it was 'proposing to take [immediate] action because it reasonably believes that because of your health, you pose a serious risk to persons and it is necessary to take immediate action to protect public health or safety'.
Although the defendant expressly stated that it was proposed to take immediate action due to concerns about Mr Nugawela's health, its letter also contained a statement of the defendant's reasons for its decision, and identified the information on which it relied in making that decision, copies of which accompanied the letter.
In my opinion, on a fair reading of the letter of 20 April 2023 as a whole, it was clear that the defendant's reason for proposing to take immediate action was Mr Nugawela's failure to comply with the conditions imposed by the orders made on 8 September 2022, in circumstances where Mr Nugawela's application for a stay of those orders had been denied. That was so despite the defendant's express statement that it had concerns about Mr Nugawela's health.
On 26 April 2023 Mr Nugawela requested an extension of time until 28 May 2023 in which to respond to that letter. On 27 April 2023 the defendant rejected that request, but agreed to extend the time in which Mr Nugawela was to respond to 11 May 2023.
On 1 May 2023 Mr Nugawela again requested that the time for his response be extended to 28 May 2023.
On 4 May 2023 the defendant issued another letter to Mr Nugawela, in near identical terms to its letter of 20 April 2023, but correcting the reference to Mr Nugawela's health. The letter of 4 May 2024 stated that the defendant proposed to suspend Mr Nugawela's registration because it believed, due to Mr Nugawela's conduct, that he posed a serious risk to persons and that it was necessary to take immediate action to protect public health and safety. The defendant's stated reasons for its decision remained substantially the same as set out in the letter dated 20 April 2023, and copies of the materials on which the defendant said it had relied in coming to its decision were again enclosed with the letter.
On 5 May 2023 the defendant refused Mr Nugawela's second request for an extension of time until 28 May 2023, and informed him that the defendant continued to require his response by 11 May 2023.
On 11 May 2023 Mr Nugawela wrote to the defendant. He complained that he was being denied natural justice, but did not address the matters raised in the defendant's letters of 20 April and 4 May 2023. In particular, Mr Nugawela did not respond to the allegation that he was engaged in practice without having appointed a supervisor.
On 12 May 2023 the defendant advised Mr Nugawela by letter that, after having considered his submission dated 11 May 2023, it had determined to suspend his registration. Again, the defendant set out its reasons for its decision, and enclosed copies of the material on which it said it relied in reaching that decision.
Pursuant to s 199(1)(h) of the National Law, the decision to suspend a practitioner's registration is an appealable decision, the appeal lying to the responsible tribunal. In Western Australia, the responsible tribunal is the State Administrative Tribunal by operation of s 11 of the National Law.
Any appeal by Mr Nugawela of the defendant's decisions to take immediate action under s 156 of the National Law therefore falls within the review jurisdiction of the Tribunal pursuant to s 17 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act).
As the defendant recognised on the hearing of its application, Mr Nugawela has the right, by virtue of s 19 of the SAT Act, to seek judicial review of the defendant's decisions by this court, but he does not have a right of appeal direct to this court in relation to the defendant's decision to suspend his registration.
Judicial review is different to an appeal. In general, judicial review is restricted to the questions whether the decision maker had jurisdiction to make the challenged decision and the correctness of the process by which that decision was made, rather than the merits of the decision: see, for example, Re the State Administrative Tribunal; Ex parte McCourt.[3]
[3] Re the State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125, [13] - [16].
Mr Nugawela did not initially apply to the Tribunal for review of the decision to suspend his registration. He did not do so until 28 July 2023, when, having already commenced appeal GDA 11 of 2022 and these proceedings, Mr Nugawela instituted State Administrative Tribunal proceedings VR 81 of 2023 against the defendant, in which Mr Nugawela sought near identical relief to that sought in these proceedings.
The defendant contends that the continuation of these proceedings constitutes an abuse of this court's process by Mr Nugawela, because (in essence) the overlap between the matters raised in VR 81 of 2023 and these proceedings was such that Mr Nugawela was pursuing two actions in respect of the same subject matter, and because Mr Nugawela has engaged in 'forum shopping', having received a strong indication from the Tribunal that he was unlikely to succeed in VR 81 of 2023.
I accept that there was a large degree of overlap between the matters raised by Mr Nugawela in VR 81 of 2023 and these proceedings. Substantial portions of Mr Nugawela's application in VR 81 of 2023 were in identical terms to his originating motion in these proceedings. Essentially, in each matter Mr Nugawela contended that:
1.there were issues with the manner in which he had been given notice of the defendant's intention to suspend his registration and the matters said to give rise to the defendant's belief as to the need to do so;
2.the defendant had failed to demonstrate any risk or serious risk arising from his continuing to practise nor explained its delay in taking action;
3.the conditions imposed on the plaintiff by the Tribunal's orders on 8 September 2022 were 'not valid' and were not capable of compliance.
Having commenced VR 81 of 2023, on 31 July 2023 Mr Nugawela filed an application for a stay of the defendant's decision to suspend his registration in those proceedings. That application was heard by the Tribunal on 29 August 2023 and dismissed on 4 September 2023: see Nugawela v Medical Board of Australia.[4]
[4] Nugawela v Medical Board of Australia [2023] WASAT 82.
In the course of delivering the Tribunal's reasons for doing so, Pritchard P said:
Bearing in mind that I am engaging only in a broad‑brush assessment, on the evidence thus far, I consider that the Board's contention that the Conditions are directed to the protection of the public from the repetition of Dr Nugawela's previous conduct, which would pose a risk to public safety, is clearly arguable. I consider that the Board's belief as to the existence of a risk to the safety of patients arising from non‑compliance with the Conditions is based on circumstances capable of being proved, and which are sufficient to support that belief. Having regard to the evidence before the Tribunal on the Stay Application, it is clearly arguable that the Board's belief that the risk to patient safety exists because of Dr Nugawela's conduct, is a reasonable one. And insofar as the Board believes that the risk posed by Dr Nugawela is a serious risk, it is arguable that that belief is a reasonable one, having regard to Dr Nugawela's acceptance that he failed to engage a supervisor, contrary to the Conditions, in light of the admitted prior conduct which formed the basis for the Tribunal's Orders, and having regard to the evidence that suggests that Dr Nugawela continued to see patients, and prescribe them medicines, even after the Suspension Decision.
The Board's belief that the risk posed to patient safety is a serious one is on its strongest footing in relation to Dr Nugawela's failure to engage a supervisor in relation to his storage of drugs which are subject to the Poisons Regulations. Absent the oversight of a supervisor, the risk that Dr Nugawela may repeat the conduct of the past in failing to store drugs in accordance with the Poisons Regulations can arguably be regarded as a serious risk to persons by virtue of the dangers of improper access to, and misuse of, such drugs.
However, even in relation to Dr Nugawela's failure to engage a supervisor in relation to his storage of patient information, the very sensitive personal information that necessarily is contained in a patient's medical records means that it is clearly arguable that the risk to persons from improper access to their patient records can be regarded as a serious risk.
Counsel for the Board submitted that the Tribunal should take into account the fact that in the Review Proceedings, it would be open to the Tribunal to find that there is also an additional basis apart from reliance on s 156(1)(a) of the National Law for the conclusion that the correct and preferable decision is the suspension of Dr Nugawela's registration. Counsel for the Board submitted that the evidence supports a reasonable belief that suspension of Dr Nugawela's registration would be in the public interest under s 156(1)(e) of the National Law. The Board submitted that quite apart from the risk to patients, Dr Nugawela's 'ongoing and admitted conduct in contravention of [the Conditions] seriously undermines public confidence in the profession' and that for that to continue would be contrary to the public interest. Assessing that submission on a broad‑brush basis, I accept that it is arguable, having regard to the evidence on the Stay Application [82] ‑ [85].
Her Honour went on to say at [101] that it was clearly arguable that it was necessary to take some form of immediate action which would protect public safety, given the evidence before the Tribunal that Dr Nugawela knew that he was required to comply with the conditions imposed by the 8 September 2022 orders and his failure to comply with them from the outset.
On 12 September 2023 the Tribunal made orders with a view to programming VR 21 of 2023 to a final hearing.
However, on 6 October 2023 Mr Nugawela sought leave to discontinue VR 81 of 2023. On 10 October 2023 the Tribunal informed Mr Nugawela that it proposed to grant leave to withdraw the proceeding and dismiss the proceeding. Mr Nugawela then indicated to the Tribunal that he sought only withdraw, and not 'dismissal plus withdrawal'.
A directions hearing was then listed by the Tribunal on 17 October 2023, which Mr Nugawela said that he was unable to attend. The directions hearing was then relisted for 24 October 2024.
On 23 October 2023 the Tribunal advised Mr Nugawela that the matter would be dealt with in his absence if he did not attend the relisted directions hearing.
On 24 October 2024 Mr Nugawela advised the Tribunal by email that, amongst other things, VR 81 of 2023 was 'to do with property of the bankrupt estate' of Mr Nugawela, so that the Tribunal had no jurisdiction to determine the proceedings, 'being a federal matter raising a Constitutional Defence'. Mr Nugawela also stated that he preferred the proceedings be withdrawn rather than dismissed.
Mr Nugawela did not attend the directions hearing that day, at which the Tribunal granted leave to withdraw the proceedings and dismissed them pursuant to s 46(2) of the SAT Act.
I accept that it is arguable that Mr Nugawela's continuation of these proceedings after having commenced VR 81 of 2023 constitutes an abuse of process, the doctrine of abuse of process being informed in part by considerations of finality and fairness, and being more flexible than estoppel.[5] In Jebb (as trustee for Trafalgar Investment Trust) v Superior Lawns Australia Pty Ltd,[6] Vaughan J (as his Honour then was) said:
The doctrine of abuse of process is informed in part by considerations of finality and fairness. The underlying public interest is twofold: there should be finality in litigation and a party should not be twice vexed in the same matter. Thus abuse of process may exist where a person seeks to re‐litigate an issue already decided. There is a general public interest in the same issue not being litigated over again. It has been said that it would be a 'scandal to the administration of justice' if, a question having been disposed of by one case, the litigant were permitted to set up the case again by changing the form of proceedings [106]. (citations omitted).
[5] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, [24] - [25].
[6] Jebb (as trustee for Trafalgar Investment Trust) v Superior Lawns Australia Pty Ltd [2019] WASC 121.

Further, proceedings may constitute an abuse of process where there has been no judgment on the merits. The plurality in UBS AG v Tyne[7] referred to serial proceedings discontinued prior to judgment as an obvious example of abuse of process.[8]
[7] UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77.
[8] At [46].
The defendant submits that is what occurring here, and also that Mr Nugawela has engaged in 'forum shopping', having discontinued VR 81 of 2023 once it became apparent that he was unlikely to succeed before the Tribunal.
A determination that proceedings constitute an abuse of process is not a discretionary decision, but an evaluative decision on which reasonable minds may differ.[9]
[9] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, [7].
Ultimately, and with some reservation, I am not satisfied that the continuation of these proceedings constitutes an abuse of process, for five reasons.
First, as the defendant acknowledged, pursuant to s 27 of the SAT Act the Tribunal was to determine VR 81 of 2023 by way of a hearing de novo, the Tribunal being required to make the correct and preferable decision as at the date of the final hearing of the proceedings. Those proceedings therefore raised a different question for determination from that raised in these proceedings, in which Mr Nugawela should be taken as having sought judicial review of the defendant's decision to suspend his registration.
It was not suggested that, by instituting these proceedings, Mr Nugawela should be taken to have made an election between the right to seek review in the Tribunal and the right to seek judicial review in this court.
Secondly, these proceedings were instituted first in time. The issue is therefore whether their continuation, as opposed to their institution, following the dismissal of VR 81 of 2023 constitutes an abuse of process, in circumstances where there was no determination of the merits in VR 81 of 2023.
Although it is not necessary that other proceedings be pursued to completion for there to be an abuse of process, the defendant will not be twice vexed if there is a trial of Mr Nugawela's claims in these proceedings, VR 81 of 2023 having been dismissed without a final hearing. There is a legitimate public and private interest in Mr Nugawela's claims being finally determined on their merits.
Thirdly, although the court must consider whether Mr Nugawela's apparent wish to have 'a second bite at the cherry' by continuing with these proceedings after having determined not to pursue VR 81 of 2023, I am unwilling to infer that Mr Nugawela discontinued VR 81 of 2023 to avoid adverse findings in those proceedings, as submitted by the defendant.
Why Mr Nugawela instituted both these proceedings and VR 81 of 2023 has not been explained. I note that Pritchard P recorded in the Tribunal's reasons for decision in respect of the stay application that Dr Nugawela had submitted:
that he brought [the proceedings currently before this court] to seek a stay of the [defendant's decision to suspend his registration] because he thought he was unable to bring proceedings in the Tribunal in relation to that matter. He did not explain why he had formed that view. I have assumed (in his favour) that he thought that [these proceedings] were required given that the Tribunal's Orders … were the subject of the Supreme Court appeal. [48]
In his submissions filed 5 September 2023 in these proceedings, Mr Nugawela stated that he instituted these proceedings 'as there are several matters on foot with [the defendant] and which impact upon each other', asserting that 'it would save court costs, time and resources if the various actions on foot can be considered and where possible determined'. Mr Nugawela went on to state that VR 81 of 2023 would be withdrawn if the defendant's present application was not granted. That has occurred.
I have a concern as to whether Mr Nugawela was 'forum shopping' as the defendant asserts, but ultimately am not prepared to draw the necessary inference, Mr Nugawela not being legally qualified and not having been cross‑examined.
Finally, although the grant of relief by way of judicial review is ordinarily refused in the exercise of the court's discretion where an alternative remedy exists, that principle is not invariably applied,[10] so that it is not determinative of the question whether the maintenance of these proceedings constitutes an abuse of process.
[10] Re Carey: ex parte Exclude Holdings Pty Ltd [2006] WASCA 219, (2006) 32 WAR 501, [133] ‑ [139].
I accordingly decline to hold that that paragraphs 1 and 2 of Mr Nugawela's originating motion constitute an abuse of process.
The position is different in respect of paragraph 3 of the motion, which sought a stay of the orders made on 8 September 2022 until the determination of GDA 11 of 2022. In my opinion, the continuation of that aspect of Mr Nugawela's claims would have constituted an abuse of process, the court having refused his application for a stay in GDA 11 of 2022 in October 2022 and the Tribunal having, in essence, done the same on 4 September 2023.
Any further application for a stay by Mr Nugawela would constitute a third attempt to raise the same issues, and would therefore constitute an abuse of process in the absence of any fresh material in support of the application.
Events have, however, overtaken that aspect of the matter, since Lemonis J dismissed Mr Nugawela's appeal in GDA 11 of 2022 on 25 January 2024.
Ground 3 of Mr Nugawela's motion therefore no longer has any utility, but I will strike it out so that the parties are in no doubt as to the position.
Further, I consider that paragraph 4 of Mr Nugawela's motion constitutes an abuse of this court's process. By that paragraph, Mr Nugawela seeks that this court dismiss an application presently before the Tribunal in application VR 21 of 2023.
In VR 21 of 2023, Mr Nugawela sought review by the Tribunal of a decision he claimed the defendant had made to refuse renewal of his registration, the defendant's position being that no such decision had been made.
On 30 May 2023 the defendant made an application for VR 21 of 2023 to be dismissed on the basis that the proceedings are frivolous, misconceived and/or lacking in substance. It is that application which Mr Nugawela seeks be dismissed.
There has been no suggestion that the Tribunal lacks jurisdiction to determine the application.
Events have also overtaken VR 21 of 2023, Mr Nugawela's registration having been suspended on 2 May 2023 in the circumstances outlined above.
Although I accept that this court has power to enjoin the Tribunal from continuing to determine a matter in an appropriate case, in the absence of any suggestion that the Tribunal lacks jurisdiction to determine VR 21 of 2023 Mr Nugawela is, in essence, seeking to have this court determine a matter which is properly before the Tribunal. Allowing Mr Nugawela to seek relief in terms of paragraph 4 of his originating motion would result in the defendant having to deal with the matters raised by its application in VR 21 of 2023 both before the Tribunal and this court, and would therefore, in my opinion, constitute an abuse of process.
Moreover, to the extent that Mr Nugawela seeks to have this court determine issues properly before the Tribunal his conduct can be characterised as forum shopping, and consequently an abuse of process on that ground as well.[11] That is so, notwithstanding Mr Nugawela's submissions regarding the desirability of this court determining various actions between the parties, because it is Mr Nugawela who has commenced and maintained each of the separate proceedings.
[11] Reynolds v Reynolds [1977] 2 NSWLR 295, 306 ‑ 307.
Finally in this regard, ground 5 of Mr Nugawela's originating motion is misconceived, to the extent that Mr Nugawela seeks compensation. Section 105(13) of the SAT Act does not create a cause of action giving rise to an award of damages, and Mr Nugawela must be taken, in my view, to be seeking judicial review of the Board's decision to take immediate action to suspend his registration, as opposed to some other claim.
I do not, however, consider that par 5 is to be characterised as an abuse of process on either basis.
I turn now to the defendant's application for summary judgment, which is to be determined by reference to the principles summarised by Pritchard J (as her Honour then was) in Gerovich v Gerovich,[12] which I do not repeat here.
[12] Gerovich v Gerovich[2018] WASC 153, [26] ‑ [33].
The defendant supported this aspect of its application on two grounds ‑ first, that Mr Nugawela's originating motion did not disclose a reasonable cause of action, and secondly that the proceedings were frivolous and vexatious, Mr Nugawela having no prospect of success.
In my view, reading the Grounds of Application and Particulars sections of Mr Nugawela's notice of originating motion, and making some allowance for the fact that Mr Nugawela is not legally qualified, it is reasonably clear that Mr Nugawela contends that the defendant erred in law in, amongst other things, not producing or possessing evidence which established that his conduct presented a risk to persons and that immediate action was necessary to guard against that risk when determining to take immediate action on 12 May 2023. In that regard, Mr Nugawela relies, in part, on the fact that the defendant agreed that his conduct which gave rise to the orders made by the Tribunal on 8 September 2023 did not cause harm to his patients.
As to whether Mr Nugawela has no prospects of success in the proceedings, the parties did not make submissions directed to the questions whether a triable issue exists as to whether the defendant held the requisite belief as at 12 May 2023, and whether the suspension of Dr Nugawela's registration was necessary. Although the defendant relied upon the Tribunal's reasons in Nugawela v Medical Board of Australia[13] in support of its application for summary judgment, the Tribunal did not there find more than it was reasonably arguable that the defendant held the necessary states of mind.
[13] Nugawela v Medical Board of Australia [2023] WASAT 82.
To the extent that Mr Nugawela's originating motion proceeds on the basis that the defendant is required to produce evidence of those matters, I accept that he is in error, since the defendant was only required to hold a reasonable belief as to those matters: Bernadt v Medical Board of Australia,[14] and a reasonable belief requires only the existence of facts which are sufficient to induce that belief in a reasonable person.
[14] Bernadt v Medical Board of Australia [2013] WASCA 259, [65] ‑ [67], [171] ‑ [174].
However, as the question whether a triable issue is raised by Mr Nugawela's claims was not the subject of detailed submissions, I am not prepared to grant the application for summary judgment, other than in respect of part of paragraph 5 of the originating motion.
In my opinion, paragraph 5 does not disclose a triable issue to the extent that it refers to a claim for compensation, because, as stated above, s 105(13) of the SAT Act does not create an entitlement to claim damages. Nor are damages available as a remedy in judicial review: Macksville & District Hospital v Mayze;[15] Attorney‑General (NSW) v Quin,[16] so that this aspect of Mr Nugawela's claim must fail.
[15] Macksville & District Hospital v Mayze (1987) 10 NSWLR 708, 724, 731.
[16] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 45.
I have considered whether to recall the parties to make further submissions regarding the application for summary judgment, but have come to the view that there would be little, if any, saving in time or costs were I to do so, as opposed to setting the remaining issues in the proceedings down for final hearing.
For those reasons, and subject to hearing from the parties as to the precise form of the orders to be made and as to costs, I propose to:
1.dismiss the application to strike out grounds 1 and 2 of the Mr Nugawela's originating motion;
2.strike out paragraphs 3 and 4 on the ground that the continuation of each of the claims raised by those paragraphs constitute an abuse of the court's process; and
3.strike out paragraph 5 insofar as it refers to compensation on the ground that it does not give rise to a triable issue.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Hon Justice Cobby
3 APRIL 2024