Pereira v Psychology Board of Australia
[2014] VSC 417
•9 September 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 6066
S CI 2013 6067
| VIVIAN PEREIRA | Plaintiff |
| v | |
| PSYCHOLOGY BOARD OF AUSTRALIA | Defendant |
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JUDGE: | KYROU JA | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 5–6 August 2014 | |
DATE OF JUDGMENT: | 9 September 2014 | |
CASE MAY BE CITED AS: | Pereira v Psychology Board of Australia | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 417 | |
DECISION APPEALED FROM: | Pereira v Psychology Board of Australia [2013] VCAT 1866 | |
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ADMINISTRATIVE LAW — Appeal from Victorian Civil and Administrative Tribunal dismissing plaintiff’s application for review of decision refusing endorsement of registration as a clinical psychologist — Plaintiff failed to comply with deadline under transitional arrangements — Tribunal wrongly decided it lacked jurisdiction to grant extension of time — Whether vitiating error — Whether it would be futile to set aside Tribunal’s decision — Appeal allowed — Health Practitioner Regulation National Law Act 2009 (Qld) ss 98, 202(2) — Victorian Civil and Administrative Tribunal Act 1998 s 51(1)(a).
STATUTORY INTERPRETATION — Meaning of ‘qualification’ — National Law s 98(1)(a)(ii).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E M Nekvapil | Bleyer Lawyers Pty Ltd |
| For the Defendant | Dr I R L Freckelton QC with Mr S K McGregor | Minter Ellison |
TABLE OF CONTENTS
Introduction and summary............................................................................................................... 1
Relevant legislative provisions........................................................................................................ 2
Pathways to endorsement as a clinical psychologist................................................................... 6
Meaning of ‘qualification’............................................................................................................ 9
Plaintiff’s application for endorsement....................................................................................... 13
The Board’s Decision....................................................................................................................... 15
VCAT proceeding............................................................................................................................ 17
Evidence of the plaintiff............................................................................................................. 17
Evidence of Ms Suza Josevska.................................................................................................. 19
Evidence of Mr Simon Milton................................................................................................... 20
Evidence of Dr Nicholas Voudouris........................................................................................ 21
Evidence of Dr Lynne Casey..................................................................................................... 22
VCAT’s Reasons............................................................................................................................... 23
Application for leave to appeal...................................................................................................... 26
First ground of appeal................................................................................................................ 26
Parties’ submissions............................................................................................................. 26
Decision.................................................................................................................................. 28
Second and third grounds of appeal........................................................................................ 36
Application for judicial review...................................................................................................... 37
Proposed order.................................................................................................................................. 38
HIS HONOUR:
Introduction and summary
The plaintiff holds a Master of Psychology (Counselling Psychology) from La Trobe University. On 26 February 2007, she was registered to practise as a psychologist under the Health Professions Registration Act 2005 (Vic) (‘Victorian Act’). That Act provided for general registration of psychologists and did not establish specialist categories. The plaintiff has been practising at a private medical practice for six years. At the relevant time, she was a member of the Australian Psychological Society (‘APS’) but not of any of its Colleges.
On 1 July 2010, the Victorian Act was replaced by the Health Practitioner Regulation National Law which was enacted as a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (‘National Law’).[1] The National Law makes provision for the registrations of individual psychologists to be endorsed in particular specialist areas of practice such as ‘clinical psychology’. Endorsement of the plaintiff’s registration as a clinical psychologist under the National Law would entitle her to provide certain service items for Medicare and to hold herself out as a clinical psychologist.
[1]The National Law has force in Victoria under the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic).
Following extensive correspondence between the plaintiff and the defendant (‘Board’) commencing on 29 November 2010,[2] on 30 August 2011, the plaintiff made a formal application to the Board to have her registration endorsed in the practice area of clinical psychology. The Board made a decision to reject that application on 4 June 2012 (‘Board’s Decision’) and provided reasons for its decision on 5 July 2012 (‘Board’s Reasons’).
[2]See [45]–[50] below.
On 6 August 2012, the plaintiff applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) for a review of the Board’s Decision pursuant to s 199(1)(b) of the National Law. On 25 October 2013, VCAT made an order affirming the Board’s Decision (‘VCAT’s Order’) and published reasons for its decision (‘VCAT’s Reasons’).[3]
[3]Pereira v Psychology Board of Australia [2013] VCAT 1866 (25 October 2013) (‘VCAT’s Reasons’).
On 22 November 2013, the plaintiff commenced two proceedings in this Court against the Board, which were heard together. In one of the proceedings, the plaintiff seeks leave to appeal from VCAT’s Order (‘Appeal Proceeding’). On 4 December 2013, Mukhtar AsJ ordered that the application for leave to appeal, and if leave be granted, the resultant appeal, be heard together. The proposed grounds of appeal allege that VCAT misconstrued the National Law and its review powers.
In the second proceeding, the plaintiff seeks judicial review of the Board’s Decision pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’) (‘Judicial Review Proceeding’). The application for judicial review was filed by the plaintiff as a precaution in case this Court found that VCAT lacked power to grant particular relief.
For the reasons that follow, in the Appeal Proceeding, I have decided to grant leave to appeal, to allow the appeal, to set aside VCAT’s Order and to hear further submissions from the parties about any further orders to be made consequent upon the setting aside of VCAT’s Order. The Judicial Review Proceeding will be dismissed.
Relevant legislative provisions
Pursuant to s 269 of the National Law, psychologists who were registered under the Victorian Act as at 1 July 2010 were taken to hold general registration under the National Law. That date is the ‘participation day’ for the purposes of the National Law.
Section 98(1) of the National Law provides for a national board for a health profession (including the Board) to endorse the registration of a health practitioner as being qualified to practise in an approved area of practice. The provision states:
98 Endorsement for approved area of practice
(1)A National Board established for a health profession may … endorse the registration of a registered health practitioner registered by the Board as being qualified to practise in an approved area of practice for the health profession if the practitioner—
(a)holds either of the following qualifications relevant to the endorsement—
(i) an approved qualification;
(ii)another qualification that, in the Board’s opinion, is substantially equivalent to, or based on similar competencies to, an approved qualification; and
(b)complies with an approved registration standard relevant to the endorsement.
…
Section 5 of the National Law sets out the following relevant definitions:
approved qualification—
(a)for a health profession, means a qualification obtained by completing an approved program of study for the profession; and
(b)for endorsement of registration in a health profession, means a qualification obtained by completing an approved program of study relevant to the endorsement.
approved registration standard means a registration standard—
(a) approved by the Ministerial Council under section 12; and
(b)published on the website of the National Board that developed the standard.
Applications for endorsement of registration may be made to the Board pursuant to s 99 of the National Law. An application must be in the form approved by the Board, and accompanied by the relevant fee and any other information reasonably required by the Board.[4]
[4]National Law s 99(2).
Section 101 of the National Law provides that where the Board proposes to refuse to endorse an applicant’s registration, the Board must give the applicant written notice of the proposal and invite the applicant to make submissions about the proposal. Section 102(1) states that after considering an application and any such submissions, the Board must decide to endorse, or refuse to endorse, the applicant’s registration as sought. An endorsement may be granted subject to conditions.[5] Subsection 102(2) relevantly provides that the Board may refuse to endorse an applicant’s registration if:
(a) the applicant is not qualified for the endorsement under s 98; or
(b) the Board considers the applicant is not competent to practise the health profession in accordance with the endorsement sought.
[5]National Law s 103(1).
Section 199(1)(b) of the National Law confers a right of appeal to VCAT from a decision refusing endorsement of registration.[6] Section 202(2) provides that VCAT has the power to confirm or amend the impugned decision or to substitute another decision and that, in substituting another decision, VCAT has the same powers as the Board. Section 202(2) is consistent with s 51(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) which, when read with the definition of ‘function’ in s 3 of that Act, provides that in reviewing a decision, VCAT has all the ‘jurisdiction, power, duty and authority’ of the decision-maker.[7] Pursuant to s 205(1) of the National Law, the Board must give effect to a decision of VCAT.
[6]See Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 6.
[7]As s 202(2) of the National Law and s 51(1)(a) of the VCAT Act are not inconsistent, s 203 of the National Law preserves their concurrent operation.
Part 12 of the National Law is titled ‘Transitional provisions’ and includes ss 277 and 278, which provide as follows:
277 Other registrations
(1) This section applies if—
(a)immediately before the participation day for a participating jurisdiction, a class of persons held a type of registration in, or was endorsed or otherwise authorised to practise, a health profession under the law of that jurisdiction; and
(b)from the participation day, persons in that class are not registered, endorsed or otherwise authorised to practise the profession by another provision of this Division.
(2)From the participation day, persons in that class are taken to hold the type of registration in the health profession that is specified for the class of persons in the registration transition plan prepared under subsection (3) by the National Board established for that profession.
(3)Before the participation day, each National Board must prepare a registration transition plan that includes details of the type of registration that is to be held under this Law by a class of persons referred to in subsection (1).
…
278 Endorsements
(1)This section applies to a person who, immediately before the participation day for a participating jurisdiction—
(a)held a type of registration in that jurisdiction in a health profession for a corresponding purpose; or
(b)held general registration in that jurisdiction in a health profession that had been endorsed for a corresponding purpose.
(2)From the participation day, the person is taken to hold general registration in the health profession that has been endorsed under this Law for the purpose that is equivalent to, or substantially equivalent to, the corresponding purpose.
(3) In this section—
corresponding purpose means a purpose that is equivalent to, or substantially equivalent to, a purpose for which an endorsement may be granted under this Law.
Section 35(1) of the National Law relevantly provides:
35 Functions of National Boards
(1)The functions of a National Board established for a health profession are as follows—
…
(b)to decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession;
(c)to develop or approve standards, codes and guidelines for the health profession, including—
(i)the approval of accreditation standards developed and submitted to it by an accreditation authority; and
(ii)the development of registration standards for approval by the Ministerial Council; and
(iii)the development and approval of codes and guidelines that provide guidance to health practitioners registered in the profession;
…
(q)to do anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme.
Section 39 of the National Law also empowers the Board to develop and approve codes and guidelines.
Pathways to endorsement as a clinical psychologist
The Board introduced a suite of transitional arrangements to facilitate the process of endorsing the registrations of psychologists practising in specific areas of practice. These arrangements were set out in a number of documents the Board published on its website including three documents titled: ‘Guidelines on area of practice endorsements’; ‘Area of practice endorsements registration standard’ (‘Registration Standard’); and a fact sheet titled ‘Transition and grandparenting arrangements for area of practice endorsements’.
According to the Board, upon commencement of the National Law, a registered psychologist in Victoria who wished to apply for registration endorsement as a clinical psychologist had three principal ‘pathways’ open.
The first pathway was an ‘automatic’ pathway available to three categories of person. Under this pathway, psychologists who, as at 1 July 2010, were existing members of one of the APS Colleges, who had been accredited by the APS to provide clinical psychology service items for Medicare, or who were ‘specialist’ practitioners registered in Western Australia, received automatic area of practice endorsement. The Board submitted that the source of statutory power for the first pathway is found in s 277(1)(a) of the National Law. It is not necessary for me to consider any aspect of this pathway, as it is clear that the plaintiff did not satisfy its requirements.
The second pathway was described by the Board as the ‘transitional’ pathway, and effectively extended the time for eligibility for automatic endorsement from 30 June 2010 until 30 June 2013 for psychologists falling within four categories, provided that they applied before a specified time. Initially, the deadline was 30 June 2010. However, as appears from [21] below, the deadline was extended to 30 September 2010. Three of the four categories related to demonstrating eligibility for APS College membership[8] and were as follows:
[8]The fourth category concerned psychologists practising in Western Australia and is not relevant to this appeal.
(a) generally-registered psychologists who met all the requirements of APS College membership prior to 30 June 2010, but did not hold such a membership;
(b) generally-registered psychologists who had, before 1 July 2010, entered an approved individual bridging plan (‘IBP’) with the APS for the purpose of gaining full APS College membership[9] and who completed the IBP by 30 June 2013; and
(c) generally-registered psychologists who, on 30 June 2010, had an agreed supervision plan with a supervisor, for the purposes of gaining full APS College membership and who completed the supervision plan by 30 June 2013.[10]
[9]In some of the Board’s documents the stated purpose was eligibility to provide clinical psychology service items for Medicare.
[10]Further details of the three categories are set out at [53] below. Further details of IBPs are set out at [71]–[74] below.
In a communiqué dated 9 July 2010, the Board advised that it had granted potential applicants under the transitional pathway a three month extension to 30 September 2010 for the lodgement with the APS of applications for APS College membership. On 18 November 2011, the Board adopted a policy that enabled extension of the final completion date under the transitional pathway from 30 June 2013 to 31 December 2013.
The Board submitted that s 98(1)(a) of the National Law is the statutory source of power for the transitional pathway, and that the adoption of guidelines explaining the pathway was authorised by s 35(1)(c) and (q). This submission needs to be considered in the context of the meaning of the word ‘qualification’ in s 98(1)(a)(ii). That issue is discussed in detail at [27] to [42] below.[11]
[11]See also [105] below.
The Board described the third pathway as the ‘qualifications and supervised experience’ pathway. This pathway was divided into two routes: the ‘standard’ route and the ‘non-standard’ route. The standard route was said to be authorised by s 98(1)(a)(i) of the National Law, and required the applicant for endorsement to hold an approved qualification. The non-standard route was said to be authorised by s 98(1)(a)(ii) and required the applicant to hold a qualification that the Board concluded is substantially equivalent to, or based on similar competencies to, an approved qualification.
The plaintiff’s Master of Psychology (Counselling Psychology) was not an approved qualification for the purposes of endorsement as a clinical psychologist. The Board’s published guidelines set out categories of qualifications (such as overseas qualifications) which the Board considered were substantially equivalent to or based on similar competencies to an approved qualification. The plaintiff’s Masters degree was not within any of the categories relevant to endorsement as a clinical psychologist.
The Board developed the Registration Standard for the purposes of s 98(1)(b) of the National Law and published it on its website on 1 July 2010. It states that in order to be eligible for endorsement in an area of practice — such as clinical psychology — a registered psychologist must have:
a)an accredited doctorate in one of the approved areas of practice, and a minimum of one year of approved, supervised, full-time equivalent practice with a Board approved supervisor; or
b)an accredited Masters in one of the approved areas of practice, and a minimum of two years of approved, supervised, full-time equivalent practice with a Board approved supervisor; or
c)another qualification that, in the Board’s opinion, is substantially equivalent to a) or b).
Psychologists who did not have their registration endorsed under the transitional arrangements can now only attain endorsement if they comply with s 98(1) of the National Law and the Registration Standard. It is common ground that the plaintiff does not satisfy paras (a) and (b) of the Registration Standard extracted at [25] above because she does not hold a doctorate or a Masters degree in clinical psychology and has never been supervised by a Board approved supervisor.
Meaning of ‘qualification’
Section 98(1)(a)(ii) of the National Law uses the undefined term ‘qualification’.[12] The meaning of the term is central to a determination of whether the plaintiff holds a qualification that is ‘substantially equivalent’ to an approved qualification.
[12]The term ‘approved qualification’ is defined: see [10] above.
In its submissions, the Board relied on a decision of the South Australian District Court, Childs v Psychology Board of Australia,[13] in which Judge Gilchrist concluded that on its proper construction, ‘qualification’ means a qualification in the nature of a ‘degree, diploma, fellowship or membership granted by some recognised body and does not include personal skill and competence.’[14] On the Board’s interpretation, a qualification that is substantially equivalent to an approved qualification must be a particular type of formal degree or other academic qualification as opposed to practical experience in clinical psychology.
[13][2013] SADC 117 (27 August 2013) (‘Childs’).
[14]Childs [2013] SADC 117 (27 August 2013) [63]. See also R v Director-General of Health (Cth); Ex parte Thomson (1976) 11 ALR 471, 474, 476, 478–9 (‘Thomson’); Alroe v Medical Board of Queensland [2010] QCA 44 (5 March 2010) [14] (‘Alroe’).
The plaintiff accepted that ‘qualification’ includes the completion of a program of study but submitted that the definition is broad enough to include other forms of qualification. The plaintiff relied on two dictionary definitions of ‘qualification’, taken from the online Oxford English Dictionary and the printed sixth edition of the Shorter Oxford English Dictionary, which respectively provide:
A quality or accomplishment which qualifies or fits a person for a certain position or function; (now esp.) the completion of a course or training programme which confers the status of a recognized practitioner of a profession or activity.
A quality, skill, or form of knowledge or expertise which qualifies or fits a person for a certain office or function or which is formally or officially recognized.
Depending on the context, the word ‘qualification’ is capable of at least three meanings. The first meaning encompasses only a formal educational qualification. The second meaning encompasses a formal educational qualification or membership of a recognised professional body. The third meaning encompasses a formal educational qualification, membership of a recognised professional body or practical skill and experience which is unconnected to such a qualification or membership.
The word ‘qualification’ is normally associated with the first meaning. The most obvious educational qualifications are university degrees and diplomas.
However, in order for individuals to practise in some professions, they must possess additional credentials. For example, lawyers must not only hold a law degree but must also be admitted to practise and hold a practising certificate. For other professions, membership of a recognised professional body, which is conferred after a formal assessment process, may be required. Some professional bodies confer formal credentials, such as a fellowship, on persons who satisfy certain competencies. The question is whether the fact that these categories of professional status are conferred following formal assessment processes, means that they can properly be regarded as qualifications and thus support the second meaning.
The third meaning relies on the proposition that a person’s skills and experience which are acquired over a period through private study and working in a particular area can be considered to be a ‘qualification’. This is said to be so even though an organisation such as a tertiary institution or a professional body does not assess those skills and experience against the formal criteria that they apply in awarding formal qualifications or membership status.
The undefined word ‘qualification’ in s 98(1)(a)(ii) of the National Law appears after the composite term ‘approved qualification’ in s 98(1)(a)(i), which is defined in s 5 as the completion of an ‘approved program of study’.
Generally, in the absence of indications to the contrary, where a word appears in an Act more than once — especially in the same section — it should be given a consistent interpretation. Such an approach would support the first meaning. However, statutory definitions of words or phrases may deem them to have meanings other than their natural meanings. Where a word appears in a defined composite term and also appears on its own, an inconsistency does not necessarily arise if the word in the composite term is interpreted in accordance with the definition and the word appearing on its own is interpreted in accordance with its natural meaning.
In the present context, the definition of ‘approved qualification’ may give the word ‘qualification’ in that composite expression a narrower meaning than the natural meaning of that word appearing on its own. Inconsistency would be avoided if there is an appropriate connection between the defined meaning of ‘approved qualification’ and the natural meaning of ‘qualification’. If ‘qualification’ can be read naturally as including a particular credential that is attained from completion of a course of study or the attainment of membership of a recognised professional body following formal assessment by that body, it may contain an appropriate connection to the definition of ‘approved qualification’ and thus support the second meaning.
The key question that arises in relation to the third meaning is whether to interpret ‘qualification’ in sub-para (a)(ii) as not requiring any connection with study or membership based on a formal assessment by a recognised educational or professional body would represent too great a departure from the definition of the composite expression appearing in sub-para (a)(i).
In my opinion, the context in which the word ‘qualification’ appears in s 98 of the National Law indicates that it is intended to be confined to competencies gained by a course of study or membership based on formal assessment by a recognised educational or professional body, rather than competencies gained merely from stand-alone practical experience. While the defined composite term ‘approved qualification’ is relevant to the meaning of ‘qualification’, it does not govern that meaning. The relevance of the composite term is that it indicates that a qualification must result from a process of formal assessment of competencies by a recognised educational or professional body where that assessment is based on objective standards. This focus on assessed competencies is necessary because s 98(1)(a)(ii) requires a comparison of competencies.[15]
[15]Alroe [2010] QCA 44 (5 March 2010) [14].
It follows from the above that the word ‘qualification’ in s 98(1)(a)(ii) of the National Law is not confined to the first meaning but also encompasses the second meaning. The word, however, does not extend to the third meaning because a person’s practical experience in and of itself does not equate to an objectively measurable or identifiable ‘qualification’. Rather, it is one of the factors that may be taken into account, among other factors, in assessing whether the requirements for some qualification have been met. Until such an assessment is formally conducted and results in a formal educational qualification or membership of a recognised professional body, the practical experience cannot constitute a qualification.
The second meaning, which I have adopted, is consistent with Childs. It is also consistent with the context of the National Law as a whole.
The National Law contains three provisions — ss 67, 68 and 303 — which use the word ‘qualification’ in conjunction with the words ‘experience’, ‘standing’, ‘further study’, ‘supervised practice’ and ‘training’. These provisions indicate that experience, standing, further study, supervised practice and training which is independent of a formal educational qualification or membership of a recognised professional body does not constitute a qualification. This is because if those attributes were intended to constitute a ‘qualification’, it would not be necessary to specifically mention them in conjunction with the word ‘qualification’.[16]
[16]Thomson (1976) 11 ALR 471, 475.
Another contextual consideration is the word ‘holds’ in s 98(1)(a) of the National Law, which suggests that the qualification must be in documentary form or evidenced in writing. A degree, diploma or membership will usually satisfy this requirement but the possession of stand-alone personal skills and experience will not normally do so.
Plaintiff’s application for endorsement
According to the plaintiff’s evidence at the VCAT hearing,[17] after unsuccessful attempts in August and September 2010 to obtain information from the APS about the endorsement scheme and the transitional arrangements, the plaintiff was eventually told by the APS in October 2010 that it was too late for her to apply for membership of the APS College of Clinical Psychologists under the transitional arrangements, and that she should contact the Board.
[17]See [59] below.
On 22 November 2010, the plaintiff wrote a letter to the APS College of Clinical Psychologists about the making of a late application for membership of the College through the ‘non-standard pathway’. The letter was headed ‘Area of practice endorsement through the Non-standard pathway under the transition arrangements to provide Clinical Psychology Medicare Items’. The letter requested ‘special consideration’ because ‘during the time these initiatives were made available to other psychologist[s], [the plaintiff] … had some personal problems due to [her] mother’s ill health and [she had] been away.’ The letter provided some brief details about the plaintiff’s qualifications and experience and urged the College to consider her application. The APS did not respond to the plaintiff’s letter.
On 29 November 2010, the plaintiff wrote a letter to the Board with which she enclosed a copy of her letter dated 22 November 2010 to the APS College of Clinical Psychologists. The letter dated 29 November 2010 contained the same heading as the letter to the College and referred to the ‘making of an application for membership [of] the College of Clinical Psychologist[s]’. The letter also stated that the plaintiff had been advised by the APS that the deadline for applications had passed and that she should contact the Board for special consideration.[18] The letter then repeated the contents of the letter dated 22 November 2010 in support of the plaintiff’s request for special consideration. By letter dated 10 January 2011, the Board advised the plaintiff that it ‘cannot intervene on [her] behalf regarding [her] application to become a member of the [APS] College of Clinical Psychologists’ and that she ‘should take up [her] concerns with the APS directly.’
[18]The plaintiff received this advice during a telephone call to the APS: see [60] below.
The plaintiff wrote a letter to the APS on 26 February 2011 in which she referred to: her earlier letter to the APS; the APS’ previous advice that she should contact the Board; her letter to the Board; and the Board’s response dated 10 November 2011. The letter set out some information and enclosed some documents in support of the plaintiff’s application to the APS ‘for Area of practice endorsement through the Non-standard pathway under the transition arrangements to provide Clinical Psychology Medicare items.’ The APS responded by email dated 8 March 2011 which stated that the non-standard pathway closed on 30 September 2010 and that the APS ‘no longer [has] an option by which [the plaintiff] can apply for an assessment to gain clinical endorsement.’
On 26 March 2011 the plaintiff again wrote to the APS[19] urging it to give ‘special consideration’ to her application for endorsement under what she described as the ‘Non-standard pathway under the transitional arrangements’.
[19]The plaintiff sent separate letters to the CEO of the APS and to the chairperson of the APS College of Clinical Psychologists.
On 26 March 2011, the plaintiff also wrote a letter to the Board enclosing a completed ‘Application for an area of practice endorsement under transition arrangements for Psychologists.’ In her letter, the plaintiff sought ‘special consideration’ in respect of the expiration of the 30 September 2010 deadline. She stated that the ‘main reason’ for not applying within time was because she ‘had some serious personal problems including [her] mother’s ill health at the time’. The plaintiff sent a further copy of the application form to the Board under cover of a letter dated 30 June 2011 which was very similar to the earlier letter dated 26 March 2011 save that the letter dated 30 June 2011 stated that the plaintiff’s application for endorsement was made on two alternative bases. The first basis was the ‘non-standard pathway’ and the second basis was the ‘substantial equivalence arrangements’.
On 4 August 2011, the Board wrote a letter to the plaintiff rejecting her application for endorsement. The Board’s letter stated:
The Board does not have the power to waive registration standards and, in deference to its obligations to treat all applications equally, will not waive any requirements set out in a guideline or transition arrangement.
On 30 August 2011, the plaintiff’s then solicitors, Ryan Carlisle Thomas, sent to the Board[20] an application by the plaintiff for registration endorsement as a clinical psychologist.
[20]The application was sent to the Board through the Australian Health Practitioner Regulation Agency (‘AHPRA’).
The Board’s Decision
On 3 November 2011, the Board gave written notice to the plaintiff that it proposed to refuse her application for endorsement dated 30 August 2011. The notice did not refer to the plaintiff’s personal circumstances — her mother’s ill health and her own absence — described in her earlier letters to the APS and the Board. On 8 December 2011 the plaintiff provided the Board with written submissions in response to the notice. In her written submissions the plaintiff did not refer to her personal circumstances.
As stated at [3] above, the Board’s Decision dated 4 June 2012 refused the plaintiff’s application dated 30 August 2011. The Board’s Reasons for the refusal first considered whether the plaintiff was eligible for endorsement under the Registration Standard. The Board concluded that the plaintiff had not satisfied the requirements of the Registration Standard because she had ‘not achieved an accredited doctorate or Masters in the area of practice for which [she applied], being clinical psychology, and [she had] not completed a period of approved supervised practice with a Board approved supervisor.’
The Board’s Reasons then addressed the question of whether the plaintiff was eligible for area of practice endorsement as a clinical psychologist under the transitional arrangements. The Board decided that the plaintiff was not eligible because she had not successfully:
a.on or before 30 September [2010], met the requirements for membership of one of the … APS … Colleges, and
b.lodged an application for assessment of eligibility for full membership of the College by 30 September 2010, and
c.[been] assessed by the APS as eligible for full College membership by 30 December 2010.
OR
a.lodged an application for membership of one of the APS Colleges before 30 September 2010, and
b.following assessment of the application by the APS, had an individual bridging plan (IBP) granted by 30 December 2010, and
c.registered the IBP with the [Board] by 30 December 2010, and
d. successfully complete[d] the IBP by 30 June 2013
OR
a.before 30 September 2010, had entered into an agreed supervision plan (that is, agreement between the supervisor and student) for the purposes of gaining full membership of an APS college, and
b.registered the agreed supervision plan with the [Board] by 30 December 2010, and
c.complete[d] the supervision program and gain[ed] full APS College membership by 30 June 2013.
Specifically, [the plaintiff has] not gained membership of an APS college or commenced work towards membership of an APS college by obtaining [an] IBP plan, before 30 September 2010.
The Board did not specifically refer to the plaintiff’s previous correspondence indicating that her mother had been ill during the transitional period and that she had been away. The Board made the following statement regarding the plaintiff’s circumstances generally:
Given the above considerations, the Board was not persuaded that you are eligible for endorsement or that any type of exception applies to your circumstances such that you are rendered eligible for area of practice endorsement.
VCAT proceeding
In her application for review to VCAT dated 6 August 2012, the plaintiff stated that the Board ‘has the power to extend the deadline for applications under the transitional provisions, and in the special circumstances referred to above ought to have done so to enable [her] application for endorsement as a clinical psychologist under the transitional provisions to have been accepted by the [APS].’ The ‘special circumstances’ upon which the plaintiff relied concerned alleged lack of information from the APS and the Board about the transitional arrangements, and did not include family illness.
The extensive evidence that was adduced in the VCAT proceeding is briefly summarised below. The summary focuses on issues relevant to the grounds of appeal in this proceeding, particularly the first ground of appeal.
Evidence of the plaintiff
The plaintiff filed four witness statements in the VCAT proceeding dated 14 November 2012 (‘first witness statement’), 4 February 2013, 10 June 2013 (‘third witness statement’) and 16 July 2013 (‘fourth witness statement’). The plaintiff also gave oral evidence at the hearing.
A recurring theme in the plaintiff’s evidence was that, prior to 30 September 2010, she did not receive correspondence from the APS indicating the significance of the introduction of the National Law, or explaining the means by which psychologists could be endorsed to practise in particular areas.
In her oral evidence, the plaintiff stated that she became aware of the concept of endorsement in early August 2010. She called the APS on numerous occasions in August and September 2010 to obtain information about the endorsement scheme but the receptionist did not put her through to anyone because, according to the receptionist, the APS was inundated with calls. The plaintiff was eventually able to speak to an APS assessment officer in the first week of October 2010. When the plaintiff asked the officer for a copy of the application form for membership of the APS College of Clinical Psychologists, the officer said that he could not provide the form to her because the deadline for the transitional arrangements had closed and that she should contact the Board. The plaintiff then sent to the APS her letter dated 22 November 2010 which is discussed at [44] above.
In the plaintiff’s first witness statement, she said that she received the following advice when she spoke to an APS officer in the first week of October 2010:
I was advised that … the Board had discretion to extend the deadline, and I should contact the Board. I was also advised that the APS was aware the Board had accepted another application outside the deadline. I was also advised they could not accept my application without an exception from the Board.
In her oral evidence, the plaintiff stated that when she contacted the APS ‘the second time’, she was told that ‘they don’t understand why the Board hasn’t used their discretion … when they have used the discretion for two other psychologists’.
The plaintiff stated in her third witness statement that at the time of the transitional arrangements, she was having significant personal problems, which she mentioned in her correspondence to the APS and the Board, and that she was overwhelmed and unable to focus on matters that did not seem important or were not brought to her notice. Attached to the witness statement was a letter from Professor Gregory Murphy from La Trobe University, who expressed the opinion that, in combination, the plaintiff’s Masters in Counselling Psychology and experience ‘suggest that she is close to having equivalent knowledge and skills to those expected of a graduate from the [La Trobe University] Master of Clinical Psychology.’ The letter stated that there were two main areas which required further assessment before a judgment could be made.
In her fourth witness statement, the plaintiff described her responsibilities as the primary carer for both her elderly mother and younger sister. The plaintiff stated that in 2009–2011 her mother was suffering from critical heart and respiratory conditions, requiring hospitalisation and frequent care. The plaintiff’s sister was constantly unwell in 2010–2011, suffering from a serious kidney condition and other medical issues. The plaintiff took time off work to care for both family members. These family responsibilities and significant work pressures meant that she ‘was not in a position to focus on anything urgent … unless brought to [her] attention.’ Under cross-examination, the plaintiff stated that this difficult period in her life ended in mid-2012.
The plaintiff set out details of the supervision she had received as part of her Masters degree and in conducting her practice. Under cross-examination the plaintiff accepted that she has only been supervised by counselling psychologists in her private practice.
The plaintiff gave evidence that one of her classmates in the Masters course at La Trobe University obtained an IBP, requiring her to complete a ‘couple of subjects.’
Evidence of Ms Suza Josevska
At the plaintiff’s request, on 5 February 2013 VCAT issued a summons addressed to AHPRA. The summons required production of documents identifying the number of psychologists who had been endorsed as clinical psychologists under the National Law, the academic qualifications of those psychologists and the basis for and pathway to endorsement of each of the psychologists. Ms Suza Josevksa, a senior registration officer at AHPRA, swore an affidavit in response to that summons but did not give oral evidence before VCAT.
Ms Josevska exhibited to her affidavit documents setting out details of psychologists whose registrations had been automatically endorsed on 1 July 2010. She stated that with regard to psychologists who obtained clinical psychology endorsement under s 98 of the National Law, the only available information from the AHPRA database was a list of names and the area of practice for which they were endorsed. This list showed that 1,990 psychologists had been endorsed in clinical psychology on the basis of either the Registration Standard or the transitional arrangements. Ms Josevska stated that in order to identify the pathway to endorsement for each of the 1,990 psychologists, AHPRA would need to request each individual psychologist’s file from archives. AHPRA declined to do so on the basis that it would be oppressive and cause undue hardship to AHPRA.
Ms Josevska confirmed that two psychologists applied for membership of the APS College of Clinical Psychologists after 30 September 2010 and were subsequently granted an IBP. In these two matters:
the Board determined, on compassionate grounds, they would accept applications for endorsement on the basis of APS College membership outside of the agreed timelines. One psychologist experienced the death of her child. The other psychologist experienced serious illnesses to several family members for whom she was the primary carer, including her father, husband and daughter.
The Board’s solicitors produced a list of the academic qualifications of the 1,990 psychologists referred to at [67] above. This list showed that some of those psychologists did not have a doctorate or a Masters degree in clinical psychology. One of the psychologists had the same Masters degree as the plaintiff.
Evidence of Mr Simon Milton
Mr Simon Milton prepared a witness statement dated 5 April 2013 and also gave oral evidence. Mr Milton worked at the APS as a member of the Medicare assessment team from 2007 until 2009. That role included assessment of eligibility for membership of the APS College of Clinical Psychologists. At the time of the hearing before VCAT, Mr Milton was employed by AHPRA as a professional officer.
Mr Milton gave evidence that, from 2006 until at least 2009, a person could become a member of the APS College of Clinical Psychologists either through the standard route or the non-standard route. The standard route required completion of either a doctorate or Masters in clinical psychology and, in the case of the latter degree, completion of one year of work experience supervised by a clinical psychologist. The non-standard route required the applicant to satisfy the College that his or her academic qualifications and training and experience were effectively equivalent to those under the standard route. Where the College was not satisfied that the equivalence requirement was met, it could offer the applicant an IBP to allow him or her to make up the shortfall. The IBP may have required further university study or additional hours of supervised practice in clinical psychology. Upon successful completion of the IBP, the applicant was deemed eligible for membership of the College.
Mr Milton gave evidence about the assessment of applicants for College membership who applied under the ‘non-standard’ route.[21] In addition to demonstrating knowledge and skills in five core areas, an applicant required 2,000 hours of practice under the supervision of a clinical psychologist, 1,000 hours of which could be completed during a Masters degree.
[21]Mr Milton could not say whether these procedures still applied in 2010 after he had ceased working for the APS.
Mr Milton stated that an IBP was only offered to applicants in circumstances where the shortfall in their academic qualifications or training and experience was ‘not substantial’. In his experience, a ‘substantial shortfall’ would exist when the applicant would need to undertake more than four university subjects, or more than 1,000 hours of supervised practice to make up the shortfall.
As for the assessment process used by the Board to determine applications for area of practice endorsement, Mr Milton stated that there were ‘any number’ of qualifications which would lead the APS to grant an IBP, but this was not a matter for the Board.
Evidence of Dr Nicholas Voudouris
Dr Nicholas Voudouris, the CEO of the Australian Psychology Accreditation Council (‘APAC’), prepared a report dated 18 January 2013 which was filed in the VCAT proceeding on behalf of the Board. Dr Voudouris also gave oral evidence. Dr Voudouris has managed the accreditation system for the psychology profession in Australia since 2007. His evidence was that all accredited Masters courses in Australia must contain a set of core education and training experiences and graduate competencies. A comparison of two courses to determine whether they are ‘substantially equivalent’ is therefore undertaken by addressing only those elements of the courses which deal with their respective specialised areas of practice, and whether those specialised elements meet the accreditation benchmark of satisfying the course approval requirements of the relevant APS College.
Dr Voudouris conducted an assessment of La Trobe University’s Master of Counselling Psychology program based on materials available about that program at the time it was undertaken by the plaintiff. In his opinion, that program would not be eligible for approval by any APS College under current accreditation guidelines. Further, the Master of Counselling Psychology degree did not meet a number of the College of Clinical Psychology Course Approval requirements which were in place in the period 2002–2006 when the plaintiff undertook the course.
A comparison of the specialised components of the Counselling Psychology and Clinical Psychology Masters programs showed ‘substantially different’ emphases in the philosophy, empirical literature, knowledge, mix of skills training and assessment in the two courses. Dr Voudouris concluded that the two courses were not substantially equivalent.
In cross-examination, Dr Voudouris said that he did not have any knowledge of how IBPs work or any requirements relating to them. He also said that he could not comment on the transitional arrangements.
Evidence of Dr Lynne Casey
The APS prepared a report dated 1 February 2013, with the input of Dr Lynne Casey and Ms Jill Giese (‘Casey and Giese report’). Dr Casey also gave oral evidence. The Casey and Giese report stated that during the transitional period, psychologists could not ‘apply’ for an IBP. Rather, the development of an IBP was one possible outcome of an application for membership of an APS College.
Dr Casey stated that the process for assessing eligibility for membership of the APS College of Clinical Psychologists required the applicant to submit a 17 page application form and certified documentation. The purpose of the form was to demonstrate whether the applicant met the requirement for effective equivalence with the standard route for both core units of study and clinical experience. Each application was considered on a case by case basis. Each review was completed by a senior assessor, reviewed by a second senior assessor and finally reviewed by a team. If an IBP was offered, it could have included additional accredited units of study, a particular number of hours of supervised practice, or completion of independent study.
Dr Casey stated that, after 30 September 2010, the APS did not accept any applications for College membership under the transitional arrangements. However, the APS conducted an area of practice endorsement assessment on behalf of one psychologist who had not applied by 30 September 2010.[22] The Board effectively granted an ‘exemption’ to that applicant, and advised the applicant that, should the APS be able to undertake a practice area endorsement assessment, the Board would ‘honour’ the outcome. Dr Casey emphasised that College membership and practice area endorsement are ‘very different things’.
[22]Dr Casey acknowledged that this procedure may have been adopted for a second psychologist.
VCAT’s Reasons
At para 32 of its Reasons, VCAT noted that the plaintiff’s application for review of the Board’s refusal to endorse her registration was being pursued on two bases. The first basis was ‘pursuant to s 99 [of the National Law]’ and the second basis was ‘under the transitional provisions.’ Notwithstanding VCAT’s awareness of these two bases, VCAT identified the question it had to decide as follows:
it was unclear how information about [IBPs] could be of any relevance to the hearing or be of any assistance to the applicant. As far as the Tribunal is aware, Ms Pereira has never been eligible for an IBP and thus the content of the various [IBPs] of the various psychologists who have obtained clinical endorsement would be of no utility to the Tribunal. … [W]hat this review required the Tribunal to do was to make a decision whether or not she holds an approved qualification or whether she holds another qualification which, when coupled with her experience, is substantially equivalent to, or based on similar competencies to an approved qualification and which complies with an approved registration relevant to the endorsement sought.[23]
[23]VCAT’s Reasons, [50].
At para 52 of its Reasons, VCAT accepted a submission from the Board that, as the plaintiff had not applied for endorsement under the transitional pathway by 30 September 2010, ‘any eligibility which she might have had expired.’ Later in its Reasons, VCAT described the ‘transitional provisions’ exclusively in terms of the automatic pathway and treated the transitional pathway as irrelevant to the plaintiff’s application for review.[24]
[24]See VCAT’s Reasons, [60]–[64], [73].
VCAT said the following about the plaintiff’s personal circumstances at the time of the transitional arrangements:
Ms Pereira gave evidence and was cross-examined at length. She presented as aggrieved and hard done by although most of her problems are the product of her own lack of attention to detail and her failure to keep up to date with changes in her profession.
…
We should, before considering the real thrust of Ms Pereira’s application, deal with the mountain of material generated by her in relation to time limits and the reasons why her application for area of practice endorsement was commenced nine months after the commencement date of the National Law. Ms Pereira told us of the many personal difficulties she was encountering during the relevant period and we have no reason to doubt her evidence in that regard. We did, however, find it perplexing that she should not have taken the time to read more carefully the many bulletins and newsletters emanating from her professional body over an extended period flagging the raft of changes in her profession preferring, as she admitted, to file them.
Ms Pereira has laboured under the misapprehension that she should have been permitted an extension of time within which to apply to the APS College on compassionate grounds and that the Tribunal has some role to play in this. This is not the case. That is not a matter upon which the Tribunal can rule in a s 99 appeal. But in any event, in its appellable decision, the respondent did not refuse the application on the basis of any failure to abide by statutory or other time limits whether relating to individual bridging programs or otherwise and it is clear no entitlement to an IBP was conferred on the applicant by the transitional provisions.[25]
[25]VCAT’s Reasons, [33], [37]–[38]. VCAT’s statement that the Board’s Decision was not based on any non-compliance with a time limit is incorrect. See [53] above.
VCAT stated the following concerning the evidence about communications from the APS and the Board to the profession explaining the transitional arrangements:
The Tribunal accepts the respondent’s submission that the confusion about the process generally was entirely of Ms Pereira’s own making. We accept the evidence of Dr Casey and Mr Milton that applications for endorsement were discussed extensively within the profession during the time when the applicant was working full time, and the proposed changes were the subject of numerous communications by the APS and also by the respondent Board. Many of such communications were produced to the Tribunal pursuant to a summons issued at the behest of the applicant seeking ‘all communications and publications provided to registered psychologists in Victoria, who were members of the Australian Psychological Society between June 2009 and December 2010 (including emails, newsletters, bulletins, psychology magazines and website publications) relating to the transitional arrangements for the Individual Bridging Program’. Along with a two-page explanation provided by the recipient’s general counsel, some 47 pages of sample documents were produced. The senders were alternatively the APS or the Board or AHPRA itself. In cross-examination about the multifarious newsletters, journals and emails sent to her, it was clear that Ms Pereira did not pay much (if any) attention to any of these communications. It follows that, notwithstanding the presence of family illness and other vicissitudes, we accept the respondent’s submissions that (a) much of the applicant’s problems were of her own making, and (b) that her evidence that she only became aware of endorsement requirements in August 2010 was simply not credible.[26]
[26]VCAT’s Reasons, [56].
VCAT made the following findings about the plaintiff’s ineligibility for practice area endorsement:
The applicant does not hold an approved qualification relevant to endorsement as a clinical psychologist. She does not satisfy s 98(1)(a)(i).
The applicant has not completed another qualification that is substantially equivalent to, or based on similar competencies to, an approved qualification. She does not satisfy s 98(1)(a)(ii).
She has not complied with the Board’s area of practice endorsement standard because (in addition to failing to hold the approved qualification) she has not completed two years of approved and supervised full-time equivalent practice with a Board-approved supervisor nor has she completed the required supervised placement and thus does not satisfy s 98(1)(b).
She is unable to satisfy the requirements of s 278(1)(a) and (b) because she does not hold the type of registration contemplated by those subsections and does not fall within any of the three criteria identified by the Board as its response to s 277(4).[27]
[27]VCAT’s Reasons, [73].
Application for leave to appeal
In her proposed notice of appeal, the plaintiff relies on three questions of law[28] and sets out proposed grounds of appeal in relation to each of them.
[28]Two additional questions of law were abandoned at the hearing of the two proceedings.
First ground of appeal
The plaintiff’s first ground of appeal is that s 51(1)(a) of the VCAT Act conferred on VCAT all the functions of the Board when making its original decision under the transitional arrangements. VCAT could have asked the APS to assess the plaintiff under the transitional arrangements for endorsement as a clinical psychologist. In failing to recognise this effect of s 51(1)(a), VCAT misconstrued that provision and misconceived the nature of its task on review.
Parties’ submissions
The plaintiff submitted that, in applying the transitional arrangements, the Board worked with the APS to facilitate applications to the APS for the purpose of the APS assessing psychologists for endorsement in practice areas including clinical psychology. The plaintiff relied on the evidence of Ms Josevska and Dr Casey for the proposition that the Board had facilitated assessment of applicants who had applied after 1 July 2010 and, in at least two cases, asked the APS to assess applications for endorsement made after 30 September 2010.
The plaintiff submitted that an administrative decision-maker exercising a statutory discretion should ordinarily treat like cases alike and administrative decisions in like cases should be consistent. An administrative tribunal reviewing a decision should ordinarily exercise the statutory discretion consistently with the manner in which it was exercised by the original decision-maker in other cases. This consistency is important to the extent that it encourages lawfulness, equality and fairness. The plaintiff submitted that VCAT should have considered whether to decide the plaintiff’s case consistently with the way in which other like cases were determined without having regard to irrelevant considerations such as the 30 September 2010 deadline, which formed part of the transitional arrangements.
The plaintiff further submitted that VCAT had all the powers of the Board on review. Those powers included inviting the APS to assess the plaintiff’s application for endorsement for the purposes of the transitional arrangements. Had VCAT decided to act in accordance with the transitional pathway, it could have considered whether it was appropriate in the circumstances of the plaintiff’s case to extend the 30 September 2010 deadline.
The Board submitted that, although the plaintiff’s application for endorsement was almost one year later than it ought to have been, the Board nonetheless reviewed each aspect of her application. As the plaintiff had never applied for membership of an APS College, she was never eligible to receive an IBP from any APS College. Further, there was no evidence before VCAT to establish on the balance of probabilities that the plaintiff would have been accepted as an APS College member or that she would have been offered an IBP. The Board relied on the evidence of Dr Casey that the APS would not have accepted an application for College membership from any person under the transitional arrangements after 30 September 2010.
According to the Board, the plaintiff did not avail herself of the transitional arrangements, and therefore she needed to satisfy the requirements of s 98 of the National Law to obtain practice area endorsement. The Board submitted that the plaintiff could not satisfy s 98(1)(a) because she does not hold a qualification ‘relevant to endorsement’, being a doctorate or a Masters degree in clinical psychology. She does not hold another qualification which is substantially similar to, or based on similar competencies to, such a degree. The Board further submitted that the plaintiff cannot satisfy s 98(1)(b) of the National Law because she has not completed two years of full-time supervised clinical psychological practice under an approved supervisor.
The Board further submitted that the fact that on two other occasions it, rightly or wrongly, extended compassionate leniency in circumstances of bereavement and extreme ill health, does not mean that the Board engaged in any error of law when it determined not to do so in the ‘very different’ circumstances of the plaintiff. The Board did not ‘request’ that assessments be carried out for the two psychologists in question, it merely advised them that it would ‘honour’ whatever decision was made by the APS. In the Board’s submission, it would be inappropriate for VCAT to make a request of a third party such as the APS.
In the course of the Board’s oral submissions, the Court sought clarification of whether the Board accepted that both the Board and VCAT had a discretionary power to endorse the registrations of psychologists who submitted their applications under the transitional pathway after the 30 September 2010 deadline. The Board conceded that both bodies had this power and also conceded that VCAT erred by finding that this power was not available to VCAT.[29] However, the Board submitted that this was a technical rather than a vitiating error on the part of VCAT. This was said to be because VCAT’s Reasons indicate that:
(a) VCAT decided not to exercise that power in favour of the plaintiff; or
(b) VCAT would inevitably have decided not to exercise that power in favour of the plaintiff if VCAT had addressed that issue.
[29]Ironically, VCAT was probably led into error by the Board’s own submissions at the VCAT hearing that VCAT did not have any discretionary powers in relation to time limits under the transitional pathway.
Decision
In my opinion, the first ground of appeal must be upheld.
The Board properly conceded that both the Board and VCAT had the power to endorse the registrations of psychologists who submitted their applications pursuant to the transitional pathway after the 30 September 2010 deadline. As this deadline was initially imposed by the Board, it must follow that the Board had power to vary it generally[30] or to extend it in a particular case. Under s 51(1)(a) of the VCAT Act, VCAT had all the ‘jurisdiction, power, duty and authority’[31] of the Board in reviewing the Board’s Decision, including the power to vary or extend the deadline in the case of the plaintiff.
[30]Indeed the Board did vary the deadline generally: see [21] above.
[31]See [13] above.
By stating that it is not the case that an extension of time is a matter upon which VCAT can rule and that the plaintiff laboured under a misapprehension in thinking that it was,[32] VCAT denied itself a power that it lawfully possessed and thus erred in law. That error was a substantive error which would ordinarily result in VCAT’s Order being set aside and the proceeding being remitted to VCAT. That result, however, can be avoided if it can be established that it would be futile to remit the proceeding to VCAT either because the error did not in fact affect the outcome of the proceeding or if, as a matter of law, a different outcome was not legally open.
[32]VCAT’s Reasons, [38].
I do not accept the Board’s submission that, although VCAT held that it did not have the power to extend the deadline, by rejecting the plaintiff’s explanations for her delay VCAT thereby, in effect, decided that it would not have extended the deadline if it had the power to do so.
VCAT made it clear that it accepted the plaintiff’s evidence about her personal circumstances, which VCAT described as her ‘personal difficulties’.[33] That evidence was to the effect that, in 2010, the plaintiff was preoccupied by her work and her role as primary carer for her ill mother and sister and consequently did not have time to properly consider written communications she received from the APS. VCAT regarded the plaintiff’s personal circumstances as irrelevant to its task. That is why VCAT’s Reasons do not contain any finding that the plaintiff’s personal circumstances did not warrant an extension of time.
[33]VCAT’s Reasons, [37].
VCAT’s statement that it found it ‘perplexing’ that the plaintiff did not read bulletins and newsletters indicates that it was not entirely satisfied that the plaintiff’s personal circumstances adequately explained why she did not properly consider those written communications. VCAT’s further conclusions[34] that the plaintiff’s evidence that she only became aware of endorsement requirements in August 2010 ‘was simply not credible’ and that many of her problems ‘were of her own making’, while critical of the plaintiff’s lack of diligence, fell short of a finding that the plaintiff’s personal circumstances did not warrant an extension of time.
[34]VCAT’s Reasons, [56].
Earlier in its Reasons, VCAT stated that most of the plaintiff’s problems were ‘the product of her own lack of attention to detail and her failure to keep up to date with changes in her profession’.[35] This statement failed to take into account the plaintiff’s evidence that these ‘shortcomings’ resulted from her personal circumstances and therefore the statement cannot be treated as a finding that those personal circumstances did not warrant an extension of time.
[35]VCAT’s Reasons, [33].
It follows that VCAT at no stage asked itself whether the plaintiff’s personal circumstances were sufficient to warrant VCAT granting her an extension of time. Accordingly, VCAT never decided that issue.
I now turn to the Board’s alternative submission that VCAT’s Reasons indicate that, had VCAT considered the above issue, it would inevitably have refused to grant the plaintiff an extension of time and therefore it would be futile to set aside VCAT’s Order and remit the proceeding to VCAT. That submission requires consideration of whether VCAT understood the transitional pathway, how that pathway operated in practice and the respective roles of the Board and the APS in relation to that pathway. A reading of VCAT’s Reasons as a whole indicates that, because VCAT decided that it lacked the power to grant an extension of time, it did not have proper regard to these matters and therefore its observations are neither well-informed nor considered.
Regrettably, the precise statutory bases for all aspects of the transitional pathway are far from clear. However, as neither party sought to argue that that pathway was beyond the Board’s power, I will proceed on the basis that the pathway was valid. It appears from the evidence before VCAT that, in establishing the pathway, the Board took the view that membership or eligibility for membership of the APS College of Clinical Psychologists as at 1 July 2010 — or within the extended timeframe — constituted a qualification which was substantially equivalent to, or based on similar competencies to, an approved qualification for the purposes of s 98(1)(a)(ii) of the National Law. For the purposes of this pathway, where the APS placed a psychologist on an IBP to enable the psychologist to satisfy the APS’ requirements for membership of the College of Clinical Psychologists and the APS subsequently certified that the psychologist had successfully completed the IBP and was eligible to become a member of that College, the Board endorsed the psychologist’s registration in the practice area of clinical psychology.
According to Ms Josevska’s evidence before VCAT, some of the 1,990 psychologists whose registration had been endorsed in the practice area of clinical psychology had been processed under the transitional pathway. At least one of those psychologists had the same Masters degree as the plaintiff. The evidence did not establish what other competencies that psychologist — or indeed any of the 1,990 psychologists — possessed and what requirements the APS may have imposed in the form of an IBP. Of critical importance, however, was that there was nothing in the evidence that suggested that a person in the plaintiff’s position and with her tertiary qualification was necessarily precluded from attaining practice area endorsement as a clinical psychologist under the transitional pathway.
The evidence before VCAT also established that two psychologists attained practice area endorsement as clinical psychologists notwithstanding that they did not meet the 30 September 2010 deadline under the transitional pathway. The evidence does not indicate when they applied to the Board and thus how late their applications were. It appears that the Board decided that the personal circumstances of the two psychologists warranted an extension of time and that the APS then became involved in their applications for endorsement. The evidence about the APS’ role was confusing. The affidavit of Ms Josevska suggested that the APS accepted the two psychologists’ applications for membership of the College of Clinical Psychologists.[36] On the other hand, the evidence of Dr Casey suggested that the APS conducted an assessment for the purposes of practice area endorsement which the Board accepted.[37] What is clear, however, is that as a result of the Board’s decision to extend time and the APS adopting a course of action that was favourable to the two psychologists, their registration was endorsed by the Board.
[36]See [68] above.
[37]See [81] above.
The evidence about the communications between the Board and the APS in relation to the two psychologists is very vague. One interpretation of the evidence is that the following occurred:
(a) upon being satisfied that an extension of time was warranted, the Board informed the psychologists that, if the APS agreed to undertake an assessment of their competencies, the Board would ‘honour’ the assessment;
(b) the psychologists communicated the Board’s position to the APS;
(c) the APS agreed to undertake an assessment;
(d) the APS assessment was favourable; and
(e) the Board accepted the assessment.
As a matter of logic, if the two psychologists attained practice area endorsement under the transitional pathway, the Board must have accepted their ultimate eligibility for membership of the APS College of Clinical Psychologists as satisfying s 98(1)(a)(ii) of the National Law. It has not been suggested that the Board impermissibly delegated to the APS the task of assessing equivalence for the purposes of that provision. It must be said, however, that the Board’s decision-making in relation to the two psychologists appears to be opaque.
In the present case, when the plaintiff initially communicated orally and in writing with the Board and the APS from October 2010 until March 2011, neither organisation informed her that, in order to be eligible for consideration under the transitional pathway, she needed to persuade the Board that her personal circumstances warranted an extension of the 30 September 2010 deadline. The possibility of an extension of time was never communicated to the plaintiff by the Board. Likewise, the APS did not inform the plaintiff that it had the capacity to undertake the role that it undertook in relation to the two psychologists who were the subject of the extensions of time granted by the Board.
Initially, the APS referred the plaintiff to the Board and vice versa. They each disowned responsibility in respect of the plaintiff’s pleas for ‘special consideration’ and encouraged her to believe that there was nothing they could do for her. They tersely relied on the expiration of the 30 September 2010 deadline and ignored the fact that the plaintiff had claimed that she missed the deadline due to ‘special circumstances’. The plaintiff was justified in feeling that she was ‘being bounced’[38] between two organisations.
[38]The plaintiff used this expression in her letter dated 26 March 2011 to the APS.
In the absence of advice from the Board and the APS about how the plaintiff might qualify for an extension of time, it is not surprising that her communications with these bodies appeared annoyingly persistent but not focused on persuading the Board and the APS that her personal circumstances warranted an extension of time.
The Board submitted that the reference to ‘your circumstances’ in the Board’s Decision, as set out at [54] above, is to the personal circumstances relating to the plaintiff’s role as carer for her mother and sister and thus the Board did consider those circumstances and decided that they were insufficient to warrant granting the plaintiff an extension of time. I reject this submission. When the Board’s Decision is read as a whole, it is clear that the reference is to the plaintiff’s qualifications and competencies.
The reality is that at no time since the plaintiff wrote to the Board on 29 November 2010 seeking endorsement through the transitional pathway has the Board grappled with the plaintiff’s repeated requests that she be considered for endorsement under that pathway. The Board never considered the possibility of granting the plaintiff endorsement under that pathway and never turned its mind to whether the plaintiff’s circumstances warranted an extension of time. The Board consistently took the view that the only pathway that was open to the plaintiff was the qualifications and supervised experience pathway.
Notwithstanding the Board’s acknowledgement in its letter to the plaintiff dated 4 August 2011 that it is obliged to ‘treat all applications equally’, at no time did the Board consider whether it should treat the plaintiff in the same manner as the two psychologists who were granted extensions of time. While the Board was not obliged to make identical decisions or reach the same outcomes in relation to every applicant, ordinarily there would have to be good reasons as to why the Board should not apply the same standards, principles, procedures and policies to every applicant in a consistent manner.[39]
[39]Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 68–70; Re Drake and Minister for Immigration and Ethnic Affairs [No 2] (1979) 2 ALD 634, 639, 643; Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639, 646–7.
As a result of the above, the APS at no time considered what approach it would adopt in relation to the plaintiff if it had been informed that the Board was prepared to treat her in the same manner as the two psychologists who were granted an extension of time. There was certainly no evidence before VCAT that, if the Board had decided to treat the plaintiff in the same manner as the other two psychologists, the APS would not also have treated the plaintiff in the same manner as those psychologists. Indeed, the Casey and Giese report stated that if the plaintiff had applied for assessment of eligibility for membership of the APS College of Clinical Psychologists via the non-standard route prior to 1 July 2010, one of the outcomes of that assessment may have been an IBP.
The transcript of the VCAT proceeding indicates that, at an early stage of the hearing, VCAT accepted a submission from the Board that, as the plaintiff had not applied for endorsement under the transitional pathway by 30 September 2010, that pathway was no longer available and VCAT had no powers in relation to it. VCAT’s attitude to the transitional pathway informed its decision to set aside parts of a summons which was issued at the plaintiff’s request and which required production of documents which, among other things, related to the granting of IBPs under the transitional pathway and an extension of the 30 September 2010 deadline for two psychologists.[40] The absence of this information meant that VCAT did not have a proper understanding of the practical workings of the transitional pathway and the circumstances in which it may be appropriate to extend the 30 September 2010 deadline.
[40]The plaintiff’s summons is discussed at paras 47–50 of VCAT’s Reasons.
At para 46 of its Reasons, VCAT referred to the plaintiff’s submission that the Board erred in treating her less favourably than the two psychologists in respect of whom the Board extended the 30 September 2010 deadline. While VCAT was correct in stating that the Board was not obliged to ensure ‘equality of outcome’, VCAT was wrong to reject the plaintiff’s submission that the Board was required to apply its discretion to extend time in a consistent manner.[41] Importantly, VCAT’s observations were made in a vacuum because it did not require the Board to produce any documents about the precise circumstances of the two psychologists, what decisions the Board had made in relation to them and the reasons for those decisions.[42]
[41]See [115] above.
[42]See [117] above.
In these circumstances, while VCAT’s Reasons contain the adverse observations set out at [101] to [102] above, it cannot be said with any confidence that, if VCAT had accepted that it had power to do what the Board had done in relation to the other two psychologists, VCAT would have inevitably decided that the plaintiff’s personal circumstances did not warrant VCAT exercising that power in her favour. Put another way, I am satisfied that VCAT’s Order may have been different if VCAT had not made the error set out at [95] above.[43] It follows that I am not satisfied that it would be futile to remit the proceeding to VCAT to decide whether the plaintiff’s personal circumstances warrant an extension of time to be considered under the transitional pathway and, if so, whether to exercise any of the powers of the Board in relation to that pathway.
[43]Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207, 255–6 [162]–[164].
In applying the transitional pathway to the plaintiff, VCAT should treat the plaintiff as having made an application for endorsement under that pathway on 29 November 2010,[44] 60 days after the expiration of the 30 September 2010 deadline. In this regard, I reject the Board’s contention that the plaintiff did not apply for endorsement until 30 August 2011,[45] when she completed the approved form. This is because in October and November 2010 the Board and the APS were dismissive of the plaintiff’s inquiries and failed to provide her with the approved form and advice about the procedures and requirements of the transitional pathway.[46]
[44]See [45] above.
[45]See [50] above.
[46]See [59], [110]–[112] above.
The Board has not submitted that the fact that all of the time periods set out in the transitional pathway expired on 31 December 2013 means that it is no longer possible for the plaintiff to be considered under the transitional pathway. As the Board initially had power to impose these time periods, it would necessarily have the power to extend them in the case of the plaintiff who applied for consideration under the transitional pathway prior to 31 December 2013.
It follows that the first ground of appeal is made out and that it is sufficient to grant appropriate relief to the plaintiff.
Second and third grounds of appeal
The plaintiff’s second ground of appeal is that, on the basis of expert evidence directed to a different question and without having regard to the fact that the Board had endorsed the registration of other psychologists with a similar qualification to that of the plaintiff, VCAT concluded that her qualification could not fall within s 98(1)(a)(ii) of the National Law. In so doing, VCAT misdirected itself as to the proper construction of that provision and the nature of its function on review.
The plaintiff’s third ground of appeal is that VCAT wrongly concluded that because the APS had not accepted an application for College membership from her, and she therefore did not have an IBP, it did not need to consider whether she had engaged in sufficient supervised practice to fall within the Registration Standard. In doing so, VCAT misdirected itself as to the proper construction of s 98(1)(b) of the National Law and the nature of its function on review.
My conclusion at [122] above in relation to the first ground of appeal means that it is not necessary for me to decide the second and third grounds.[47] Indeed, it would be inappropriate for me to do so, as those grounds raise matters that may need to be considered on their merits by VCAT and, depending on what VCAT decides, by the Board and possibly by the APS. My analysis of the meaning of ‘qualification’ in s 98(1)(a)(ii) of the National Law at [30] to [42] above will be relevant to the proper consideration of these matters.
[47]This approach reflects the plaintiff’s submissions on the final day of the hearing.
Application for judicial review
As the plaintiff commenced the judicial review proceeding on 22 November 2013, and the Board’s Decision was made on 4 June 2012, the 60 day time limit in r 56.02(1) of the Rules means that the Court cannot grant any relief unless it is persuaded to extend time on the basis that there are ‘special circumstances’. It is not necessary to decide whether the plaintiff has established special circumstances. This is because the Judicial Review Proceeding only related to the question of whether VCAT erred in deciding that it did not have power to extend the 30 September 2010 deadline.
The plaintiff conceded that if the Court found that VCAT had that power, it would be appropriate for the Court to dismiss the Judicial Review Proceeding. As I have found that VCAT had the relevant power, the Judicial Review Proceeding will be dismissed.
Proposed order
For the above reasons, in the Appeal Proceeding, I will make an order that leave to appeal be granted, that the appeal be allowed, and that VCAT’s Order be set aside. In the Judicial Review Proceeding, I will order that the proceeding be dismissed.
I will hear further from the parties on the question of costs in each proceeding and on what consequential orders should be made in the Appeal Proceeding upon the setting aside of VCAT’s Order.
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