Re Rules of the Supreme Court 1971 (WA); Ex Parte Van Den Berg
[2020] WASC 233
•24 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE VAN DEN BERG [2020] WASC 233
CORAM: HILL J
HEARD: 8 JUNE 2020
DELIVERED : 24 JUNE 2020
FILE NO/S: CIV 1390 of 2020
MATTER: An application under the Rules of the Supreme Court 1971 (WA) seeking leave to file and issue a notice of originating motion
EX PARTE
ANTON ALBERT VAN DEN BERG
Plaintiff
Catchwords:
Practice and procedure - Application for leave to file and issue notice of originating motion and affidavit - Whether originating motion an abuse of process or frivolous or vexatious - Whether originating motion discloses no cause of action
Legislation:
Defamation Act 2005 (WA)
Equal Opportunity Act 1984 (WA)
Health Insurance Act 1973 (Cth)
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Rules of the Supreme Court 1971 (WA), O 54, O 56, O 67 r 5
Result:
Application for leave refused
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
Solicitors:
| Plaintiff | : | In person |
Case(s) referred to in decision(s):
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Gudgeon v Black (1994) 14 WAR 158
Henley v Mayor of Lyme (1828) 5 Bing 91
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Martin-Smith v Woodhead [1990] WAR 62
Middleton v The State Western Australia (1992) 8 WAR 256
Mulholland v Winslow [2016] WASC 405
Neilson v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136
Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S)
Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder [2015] WASC 456
Re City of Stirling; Ex Parte Tallot [2012] WASC 33
Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Re Smith and the West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295
Smith v Maloney (1998) 19 WAR 209
Varney v Parole Board of Western Australia [2000] WASCA 393
Walton v Gardiner (1993) 177 CLR 378
Wentworth v Rogers (No 5) (1986) 6 NSWLR 536
HILL J:
On 7 February 2020, the plaintiff attempted to file a originating motion and supporting affidavit pursuant to O 54 r 5 of the Rules of the Supreme Court 1971 (WA) (Rules). A registrar directed that the originating motion and affidavit not be accepted for filing without leave of a judge having first been obtained under the O 67 r 5 of the Rules.
On 28 February 2020, the plaintiff filed an ex parte originating motion seeking leave to file and serve the proposed originating motion and affidavit. By the proposed originating motion, the plaintiff seeks to institute proceedings in this court against the Western Australian Country Health Service (proposed first defendant) and the Australian Health Practitioners Regulatory Authority (proposed second defendant). The intended defendants are not before the court and are not aware of these proceedings.
The notice of originating motion runs to 33 pages. The plaintiff seeks judicial review of the governance of the proposed defendants, judicial review and abolition of the 'area of need' visa regulation (on the basis that the policy is discriminatory against non‑Australian trained medical practitioners), and damages exceeding $10 million, together with interest and costs. The application is supported by two affidavits of the plaintiff: the first sworn on 28 February 2020 and a second affidavit sworn 2 June 2020.
Dr van den Berg is a self‑represented litigant. He is an anaesthetist who, I understand, has no formal legal training. For this reason, it is necessary to approach the proposed notice of originating motion with some flexibility to assess whether it discloses a viable cause of action which, with appropriate amendment, could be put into proper form.[1]
[1] Wentworth v Rogers (No 5) (1986) 6 NSWLR 536, 537; Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [3].
Even after having given Dr van den Berg due allowance as a self‑represented litigant, I am satisfied that the proposed originating motion would be an abuse of the process of the court and would be a frivolous and vexatious proceeding. For the reasons set out below, I refuse the application seeking leave to file and issue the proposed originating motion.
Procedural background
The plaintiff first sought to file a writ of summons in August or September 2019. On 18 September 2019, the writ of summons was rejected for filing by the court for a number of reasons, including that the document did not sufficiently identify a cause of action.[2]
[2] Letter from Supreme Court to plaintiff dated 18 September 2019.
Since that time, the plaintiff has sought on a number of occasions to file an originating process. Each of these has been rejected for filing by the court. On 7 February 2020, the plaintiff filed an originating motion with a supporting affidavit. It was this document that was the subject of the Registrar's decision of 14 February 2020. These documents were rejected for filing for a number of reasons including that the originating motion did not sufficiently identify the relief sought; the affidavit did not set out the material facts on which the plaintiff relies; and the documents were 'prolix and confusing' and, as such, constituted an abuse of process.
Since that date, the plaintiff has filed two amended originating motions, pursuant to the Rules, O 54 r 5.[3] In considering whether leave should be granted, I have considered the most recent amendment, being the amended originating motion received 17 May 2020.
[3] Amended originating motion dated 19 April 2020; Amended originating motion received 17 May 2020.
Factual background
Dr van den Berg's application was supported by two affidavits. Neither of the affidavits address the factual basis for his claim or annexe all of the documents referred to in the affidavit. The affidavits contain a description of the parties and the plaintiff's claims, together with his submissions as to his complaints of mistreatment by the proposed defendants.
The plaintiff was given the opportunity to file any further affidavit or documents in support of his claim but declined to do so. Instead, the plaintiff invited the court to inform him which of the documents referred to in the affidavits it wished to consider in making its decision. As was explained to the plaintiff at both the initial directions hearing and the hearing of the application, it is for the plaintiff to put before the court the evidence that he considers relevant to support his claim.[4] This is clear from the terms of O 67 r 5(4) of the Rules which require an application for leave to be supported by affidavit.
[4] ts 9.
The plaintiff is an anaesthetist by occupation. He was born in Zambia and obtained his medical degree in South Africa and specialist qualifications in the United Kingdom. He has been a resident and registered medical practitioner of Australia since 1978 and was first registered to practice anaesthesiology in Australia in 1980.
From approximately 2010 to 2013, the plaintiff was investigated following a complaint being made against him. The complaint was resolved in March 2013 by consent orders being made in the State Administrative Tribunal on the basis of an undertaking given by the plaintiff on 3 May 2010.[5]
[5] Medical Board of Australia v van den Berg, VR 124 of 2012. Health Practitioners Disciplinary Penalties Database, January 2005 - June 2017.
In addition to the disciplinary proceedings, in 2012, the plaintiff commenced proceedings in the District Court against the proposed first defendant.[6] The pleadings in these proceedings were not in evidence before me. These proceedings were settled in September 2013.[7]
[6] Van den Berg v WACHS, District Court Action 2003 of 2012.
[7] Affidavit of Anton van den Berg filed 2 June 2020, Attachment 2.
In about 2013 or 2014, for various personal reasons, the plaintiff allowed his registration as a specialist anaesthetist in Australia (and other places) to lapse.
In January 2018, the plaintiff sought to renew his registration as a specialist anaesthetist. The plaintiff was advised by the proposed second defendant that as from 2017, a new process applied to doctors who had not obtained their qualifications in Australia. Between March and April 2018, the plaintiff requested dispensation from this process, on the basis that he had previously been registered as a medical practitioner and specialist in Australia since 1980. The plaintiff says that he received no response to this request and the proposed second defendant required the new process to be followed.
From January 2018, the plaintiff undertook the process for re-registration as required by the proposed second defendant.
In August 2018, the plaintiff consented to four conditions being imposed on his registration for the year October 2018 to September 2019. He says that he did so under duress in order to expedite the registration process. The four conditions were:
(a)the applicant to provide evidence of completing an advanced life support course within three months;
(b)the applicant to provide evidence within the next six months of completing upskilling courses in anaesthesia as detailed in his plan for professional development and re-entry to practice;
(c)the applicant's practice be restricted to the specialty of anaesthesia under supervision provided by Dr Stephen Watts;
(d)the applicant providing work performance reports at six weeks, 12 weeks and every three months for a period of 12 months.
At the time that the plaintiff consented to these conditions, he was aware that the conditions would almost certainly inhibit his employment prospects and damage his reputation.[8] The proposed second defendant informed the plaintiff that there were two reasons for the imposition of these conditions: first, his period of absence from practice and second, to provide a framework to ensure compliance, protection of the public and to manage the identified risks associated with his re-registration.
[8] Affidavit of Anton van den Berg filed 2 June 2020, p 8.
In late August 2018, the plaintiff commenced a return to practice program at the Osborne Park Hospital. However, following a report by a nurse that the plaintiff made an 'inappropriate remark', which the plaintiff denies, his return to practice program was suspended for six weeks during October and November 2018.
On 17 October 2018, the plaintiff received confirmation of his re‑registration subject to the four agreed conditions. Following this, the plaintiff commenced applying for work throughout Western Australia and Australia, including using the services of a medical recruitment company. In December 2018, the medical recruitment company informed the plaintiff that 'almost all hospitals' it had approached would not employ him due to the conditions on his registration.
In January 2019, the plaintiff wrote to the proposed second defendant in relation to the conditions. The plaintiff informed them that he had met two of the conditions, the imposition of these conditions was impacting on his ability to obtain employment and requested that all conditions be removed. The plaintiff says that he informed the proposed second defendant of the refusals he had received by forwarding all emails he received from the medical recruitment company to the compliance officers of the proposed second defendant.
In January 2019, the plaintiff was advised that he had received an offer of employment from the Kalgoorlie Hospital commencing on 24 February 2019. However, on his arrival back into Western Australia on 22 February 2019, he was advised that the locum placement had been cancelled. The plaintiff travelled to Kalgoorlie and met with the locum medical director who informed him that the conditions on the plaintiff's registration prevented him being employed in any capacity. The plaintiff says that he was subsequently advised by his medical recruitment company that an administrator in Kalgoorlie cancelled the placement as they were familiar with the plaintiff's employment history in Port Hedland from 2008 to 2010.
In March 2019, due to the difficulties in the plaintiff finding work in Australia, he sought re-registration in Ireland. The plaintiff says that the Medical Council of Ireland sought an explanation from the proposed second defendant for the imposition of the conditions on his registration which explanation has not been forthcoming. As a result, the plaintiff says he has not been able to obtain registration in Ireland.
On 1 April 2019, the plaintiff was informed by the medical recruitment company that the proposed second defendant had included a notation on his registration concerning the decision of the State Administrative Tribunal in 2013. The plaintiff says that this complaint was resolved by agreement and orders of the District Court in 2013, which included a non-publication order, and, as a result, cannot be noted on his registration.[9]
[9] Affidavit of Anton van den Berg filed 2 June 2020, p 27.
On 2 April 2019, the plaintiff met with a representative of the proposed first defendant. The plaintiff says that the meeting lasted 16 minutes before it was terminated by the representative of the proposed first defendant. The plaintiff says that at this meeting he was informed that he was unpopular with the proposed first defendant and the Western Australian Department of Health and that he caused discomfort to a number of senior officials during the investigation between 2010 and 2013 by stating that the proposed defendants sanctioned the re‑use of single use anaesthesia re‑breathing circuits. The plaintiff says that during the course of the meeting, he mentioned the 'recent shooting incident in New Zealand'. I presume this is a reference to the two mass shootings that occurred at mosques in Christchurch in a terrorist attack on 15 March 2019, resulting in the deaths of more than 50 people.
Following that meeting, a complaint was made by the proposed first defendant to both the proposed second defendant and the WA Police regarding the 'mental health' of the plaintiff and his 'terrorist potential'.[10] Following these complaints, the plaintiff has undergone various psychiatric assessments as requested by the proposed defendants. In oral submissions, the plaintiff informed me that these investigations were on-going.[11]
[10] Affidavit of Anton van den Berg filed 2 June 2020, p 8.
[11] ts 14.
In June 2019, the proposed second defendant agreed to remove the first two conditions on his registration.
The plaintiff's registration for the year October 2019 to September 2020 was renewed with the last two conditions and the notation on his registration. Following further correspondence between the plaintiff and the proposed first defendant, these conditions were removed in December 2019 although the notation remains. The plaintiff informed me in oral submissions that the proposed first defendant did not formally advise him of the removal of these conditions and that he learnt of this from his medical indemnity insurer.[12]
[12] ts 10.
The plaintiff seeks damages for the loss of income arising from the protracted process concerning his re‑registration. In addition, the plaintiff alleges that the conditions placed on his registration (together with the ongoing investigations) have permanently impaired his reputation and continue to hinder his ability to obtain employment as he is required to disclose them in any application for a position. Specifically, the plaintiff informed me in oral submissions that many hospitals have a policy not to employ doctors that have been subject to any conditions on their registration.[13] As a consequence, the plaintiff is limited in the hospitals where he can obtain work which has, in his submission, caused significant loss and damage.
[13] ts 7.
The plaintiff also seeks substantial damages[14] arising from an alleged requirement of the proposed first defendant that the plaintiff re‑use 'single‑use only equipment' on successive patients, a practice which is contrary to the proposed first defendant's guidelines as well as the undertaking given by the plaintiff.
[14] To be assessed by the court but said to be approximately $5 million from each proposed defendant.
Legal principles
Order 67 r 5 of the Rules provides that:
(1)If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.
(2)In the case of a motion or an application ordinarily returnable before a master in chambers, an application for leave to file or issue such motion or application shall be made to a master in chambers.
(3)In all other cases, an application or commission shall be made to a judge in chambers.
(4)Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.
There are two main reasons for the requirement for leave to file an originating process which appears to a registrar to be an abuse of process or a frivolous or vexatious proceeding. First, it reinforces the inherent power of the court to protect itself from the unwarranted waste of its time and resources and second, to avoid the loss that would otherwise be suffered by those required to defend actions which lack any substance.[15]
[15] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312.
Order 67 r 5(1) of the Rules does not set out the criteria I am to apply in determining whether to grant or refuse leave to file or issue the proposed originating motion. However, from the express words used in the Rules, it is clear that I should only refuse leave to file or issue the originating motion if I am satisfied that the originating motion would be an abuse of process or a frivolous or vexatious proceeding.[16] In considering this issue, I adopt the same approach as that used in the exercise of the power of summary dismissal elsewhere in the Rules.[17]
[16] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S) [23].
[17] Ex parte Gates [20]; Perpetual Trustees Victoria Ltd v Allen [23].
What amounts to an abuse of the court's process is not susceptible to a formulation which comprises of closed categories.[18] However, proceedings are likely to constitute an abuse of process if they are clearly doomed to fail,[19] or are plainly unsustainable.[20]
[18] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9].
[19] Walton v Gardiner (1993) 177 CLR 378, 393; Re City of Stirling; Ex Parte Tallot [2012] WASC 33 [7].
[20] Perpetual Trustees Victoria Ltd v Allen [23].
Vaughan J in Ex parte Gates undertook a comprehensive review of the meaning of each of the terms 'abuse of process', 'frivolous' and 'vexatious' as follows:[21]
An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed. (citations omitted)
[21] Ex parte Gates [31].
In exercising the power which denies a potential plaintiff the opportunity to have their matter heard, I am aware that this is a power which should not be exercised lightly. I am particularly aware that a court at first instance should be careful not to risk stifling the development of the law by summarily dismissing actions in respect of which there is a reasonable possibility that, in the development of the law, a cause of action may be found to lie.[22]
[22] Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, 373 ‑ 374; Middleton v The State Western Australia (1992) 8 WAR 256, 264.
Plaintiff's claim
In oral submissions, the plaintiff sought to explain why the draft originating motion was not an abuse of process or vexatious or frivolous. I accept, on the basis of the affidavits filed and the plaintiff's oral submissions, that he genuinely believes that he has a claim against the proposed defendants and that he considers there is a proper basis upon which to seek redress. However, this does not answer the question that I am required to determine, namely, whether the plaintiff's proposed originating motion would be an abuse of process of the court or a frivolous or vexatious proceeding.
The plaintiff's claim in the proposed originating motion raises three separate claims: first, judicial review of the conduct of the proposed defendants in considering the plaintiff's application for registration and for the removal of conditions on his registration; second, a judicial review and abolition of the 'area of need' visa regulation which requires overseas trained doctors to work in certain rural and regional areas; and third, damages exceeding $10 million on the basis that the actions of the proposed defendants have caused him substantial loss, largely as a consequence of his inability to work or work full‑time since January 2019.
A number of grounds are advanced in support of the damages claim. The plaintiff seeks damages for his loss of income as a consequence of the conditions placed on his licence together with the reference to the investigation in 2010 to 2013. The plaintiff also seeks damages as a consequence of reports by an official of the proposed first defendant to police and the proposed second defendant in April 2019 which are still being investigated, as well as for stress arising from what is alleged to be the obligation to re-use 'single-use only anaesthesia re-breathing circuit' on successive patients.
Disposition
All litigants, including self-represented litigants, are bound to comply with the Rules of the Supreme Court. As stated by Vaughan J in Ex parte Gates:[23]
The Rules of the Supreme Court are designed to enhance the efficiency and economy of litigation and reduce the unnecessary expenditure of private and public resources. The production of a writ with a concise statement of the nature of the claim made, in the sense of disclosing the causes of action relied on, suffices to give notice of the plaintiff's claim and the cause for that claim.
[23] Ex parte Gates [57].
Under O 54 r 5(3) of the Rules, the originating motion must contain a concise statement of the nature of the claim made or the relief or remedy sought. This is similar to the requirement in O 6 r 1 of the Rules in respect of an indorsement on a writ of summons.
Even allowing for the plaintiff's status as a self-represented litigant, the draft originating motion does not comply with the Rules. The document that was sought to be filed is more than 33 pages and, on any view, is not 'a concise statement of the nature of the claim made'. In addition, the affidavit that is sought to be filed by the plaintiff in support of the originating motion is not confined to facts. For this reason, it also does not comply with the Rules.[24]
[24] Rules of the Supreme Court, O 37 r 6(1).
As a preliminary point, I observe that the claim that is brought by the plaintiff is not one that should be brought by originating motion under the Rules, O 54. While applications for judicial review are brought by originating summons, these applications are governed by O 56 of the Rules. In respect of the claim for damages, this is a claim that is wholly unsuitable to an originating summons. It is apparent from the claims made by the plaintiff that if the matter is to proceed, there are likely to be significant disputes of facts between the parties. Where this is the case, proceedings should be commenced by writ of summons.[25]
[25] Martin-Smith v Woodhead [1990] WAR 62, 65.
This, of itself, is not a sufficient reason to refuse leave to the plaintiff as the court has power to order that an originating summons proceed as if commenced by writ of summons.[26] For this reason, I turn to consider the matters raised by the plaintiff.
Judicial review of governance of the proposed defendants
[26] Smith v Maloney (1998) 19 WAR 209, 221.
The plaintiff seeks judicial review of the governance of the proposed defendants. Specifically, the proposed originating summons seeks:[27]
A Judicial Review of the governance of both [the proposed defendants], such that the malfeasance, bullying and harassment experienced by the Plaintiff is curtailed, thereby protecting colleagues from similar behaviour which, as experienced by the Plaintiff, causes irreparable reputation damage and impaired employability to any medical practitioner; such review also to address the responsibility incumbent on responsible senior civil servants to apply in writing to matters addressed to them by applicants and registrants (as is required of all civilians when receiving mail from government offices).
[27] Amended Originating Motion filed 2 June 2020 [1(b)].
In oral submissions, the plaintiff stated that he wanted a judicial enquiry into the proposed defendants.[28] He contended that these bodies needed to be more user friendly and doctor friendly.[29]
[28] ts 15.
[29] ts 15.
From the outset, I note that the role of this court is not to conduct judicial enquiries into bodies or the manner in which they exercise their power but to determine claims within its jurisdiction as prescribed by the Supreme Court Act 1935 (WA).
In order for the plaintiff to have standing to seek judicial review, it is necessary that first, there has been a decision by an official or other body or institution and second, that he is aggrieved by the decision beyond that which he may have suffered with the general public.[30]
[30] Re Smith and the West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295, 305, 315.
The court's power of judicial review is set out in O 56 of the Rules. Under O 56, an applicant can seek judicial review of a reviewable decision or reviewable conduct. Reviewable conduct means any conduct, including conduct for the purpose of making a decision and a failure to make a decision, that the court, under the common law or in equity, has jurisdiction to review and to grant relief in respect of by way of a writ, a declaration or an injunction.[31]
[31] Rules of the Supreme Court, O 56 r 1(1).
As was noted by Kenneth Martin J in Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder:[32]
Proceedings in this court seeking judicial review are the subject of a prima facie limitation period of six months, measured from the date on which a decision is made or the date on which an applicant becomes aware of it: see definition of 'limitation period', RSC O 56 r 1(1)(a). If an application were brought outside the limitation period, then, by RSC O 56 r 2(4)(a), there should be made an application for leave to proceed out of time. That would usually require an affidavit explaining why the review application is not brought within the allowed six-month period: RSC O 56 r 2(4)(b).
[32] Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder [2015] WASC 456 [106].
It is not clear from the originating summons and affidavit filed by the plaintiff what decision or decisions, alternatively conduct of the proposed defendants (within the meaning of that term in O 56 of the Rules), the plaintiff seeks to review. It is necessary for the plaintiff to identify with precision these matters, so that, among other things, consideration can be given as to whether the limitation period has expired and whether the plaintiff requires leave to proceed out of time.
For these reasons, I do not consider that this aspect of the proposed originating summons discloses a cause of action against the proposed defendants. As such, this aspect of the claim is, in my view frivolous within the meaning of that terms set out in [35] above.
Judicial review of area of need
The plaintiff seeks a judicial review of and 'abolishment of the "area of need" visa regulation' on the basis that it discriminates against overseas trained doctors. He contended that it was a breach of anti-discrimination law (in Western Australia, the Equal Opportunity Act 1984 (WA)) for 'migrant' doctors to be treated differently to 'similarly qualified non‑migrant' doctors.
I turn first to the allegation that the 'area of need' regulation is a breach of the Equal Opportunity Act. Under the Equal Opportunity Act, any complaint that a person has contravened the Act is made to the Equal Opportunity Commissioner who has the power to investigate complaints[33] and refer matters to the State Administrative Tribunal for determination.[34] For this reason, any complaint by the plaintiff about whether the area of need regulation is discriminatory should be made to the Equal Opportunity Commissioner.
[33] Equal Opportunity Act, s 83.
[34] Equal Opportunity Act, s 89 and s 93.
I also note that under s 52 of the Equal Opportunity Act, the Act does not apply to any act that discriminates between Australian citizens and non-citizens. It is apparent from the material filed by the plaintiff that he has been resident in Australia since 1978. However, the plaintiff's affidavit does not disclose whether he is an Australian citizen, an Australian resident or whether he is in Australia on a visa and if so, what type. This fact is material to each of the plaintiff's complaints on this ground.
As stated above, in order for the plaintiff to have standing to seek judicial review, it is necessary that there be a decision by an official or other body or institution and that he be aggrieved by the decision beyond that of the general public.
It is not clear from the plaintiff's originating summons or affidavit whether there is any relevant decision and whether the plaintiff is subject to any restrictions as to where he can work connected with his registration, as part of any visa he might hold or as a consequence of s 19AB of the Health Insurance Act1973 (Cth).
The regulation of medical practitioners is governed by the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law). The stated objects of the National Law includes the establishment of a national registration and accreditation scheme for the regulation of health practitioners.[35] The objectives of this scheme include, among other things, the facilitation of the rigorous and responsive assessment of overseas‑trained health practitioners.[36]
[35] Health Practitioner Regulation National Law (WA) Act, Schedule, s 3(1).
[36] Health Practitioner Regulation National Law (WA) Act, Schedule, s 3(2)(d).
Part 6 of the National Law addresses accreditation of health practitioners. There is a process for the approval of accreditation standards which, once approved, must be published on the AHPRA website and takes effect from that date, unless otherwise stated.[37] Eligibility for specialist registration is governed by s 57 and s 58 of the National Law and any registration standards issued by the relevant National Board.
[37] Health Practitioner Regulation National Law (WA) Act, Schedule, s 47.
Part 7 of the National Law concerns the registration of health practitioners. Division 2 of pt 7 specifically deals with the registration of specialists. A specialist can obtain a limited registration for an area of need under s 67 of the National Law.
AHPRA has three assessment pathways, including a specialist pathway. Overseas‑trained specialists can apply for specialist recognition, which is an assessment of the comparability of the qualifications to the standard of a specialist trained in that speciality in Australia, or an area of need specialist position. Areas of need are designated by the relevant State or Territory health authorities.
The National Law also includes a requirement for recency of practice. That is, a practitioner is required to have recent practice in the area in which they intend to work. From 1 October 2016, it is necessary for medical practitioners to have completed 450 hours of work in their area of practice in the three years prior to registration.
The plaintiff's complaint appears to be that, notwithstanding that he had been registered to practice as a specialist in Australia from 1980, when he applied for registration in 2018 he was required to be re‑assessed and was subject to these provisions as an overseas‑trained specialist. However, this complaint does not take account of the plaintiff's decision to allow his registration to lapse in 2013 or 2014. At the time he sought to re-registration, his registration had lapsed for more than three years. As a consequence, he was required to re-register and did not meet the recency of practice requirement. At that time, as the plaintiff acknowledges, the requirements of registration had changed.
It appears from the papers filed by the plaintiff that he has sought registration as an area of need specialist rather than seeking specialist recognition of his qualifications, although this is not clear. It is also not clear whether the plaintiff's registration is limited to area of need under the National Law. There is no evidence before the court that the proposed second defendant has not followed the requirements of the registration process in the National Law.
In any event, under the National Law, the plaintiff had a right to appeal to the State Administrative Tribunal in relation to the imposition of conditions on his licence or the refusal to remove a condition.[38] In oral submissions, the plaintiff informed me that he had not exercised his appeal rights.[39]
[38] Health Practitioner Regulation National Law (WA) Act, Schedule, s 199(1)(e) and (f).
[39] ts 9.
Section 19AB of the Health Insurance Act limits the circumstances in which Medicare benefits will be paid for services delivered by overseas trained doctors. In essence, the effect of this section is that for 10 years after arrival in Australia (or until the medical practitioner becomes a permanent resident), Medicare benefits will only be paid in respect of services provided by an overseas trained doctor where the services are delivered in rural or remote areas.
Pursuant to s 19AB(3) of the Health Insurance Act, the Minister for Health may grant an exemption to any person or class of persons subject to such conditions as the Minister thinks fit.[40] If a person is dissatisfied with the decision of the Minister, they can request a review of the decision.[41] The Minister is required to make a decision within 28 days and is deemed to have confirmed the original decision if the person is not informed of the reconsidered decision within 28 days.[42] If the person is still dissatisfied with the decision, the applicant may apply to the Administrative Appeals Tribunal for a review.[43]
[40] Health Insurance Act, s 19AB(4).
[41] Health Insurance Act, s 19AC.
[42] Health Insurance Act, s 19AC(4) and (5).
[43] Health Insurance Act, s 19AC(6).
There is no evidence before the court whether the plaintiff has a Medicare provider number, whether he is subject to the restrictions in s 19AB of the Health Insurance Act, and if so, whether he has applied for an exemption and whether he has requested a review of any decision.
It is well settled that certiorari (which appears to be the remedy sought by the plaintiff) is a discretionary remedy.[44] As a matter of discretion, an order for a writ of certiorari to issue should not be made if, among other things, there is a more convenient and satisfactory alternate remedy.[45] In respect of both the plaintiff's registration and any restrictions under the Health Insurance Act, there is a more convenient alternative remedy, namely the review rights under the relevant legislation.
[44] Gudgeon v Black (1994) 14 WAR 158, 177 - 178 (Malcolm CJ) referred to in Varney v Parole Board of Western Australia [2000] WASCA 393 [87].
[45] Mulholland v Winslow [2016] WASC 405 [79]. In this case each of the decisions of which the plaintiff complains have provision for a right of review. For this reason there is a more appropriate avenue to review any decision concerning the restrictions on the plaintiff's registration or practice.
For these reasons, I consider that the claim for judicial review of the area of need regulation in the proposed originating motion has no reasonable prospects of success and is, as a result, vexatious.
Claim for damages against proposed first defendant
The plaintiff's claim for damages against the proposed first defendant is said to arise from its 'malfeasance' in denying the plaintiff work, in permanently damaging the plaintiff's reputation and employability by making a report to the police and AHPRA which report is also said to be defamatory, and obliging the plaintiff to re-use a single use re-breathing circuit. While the plaintiff refers to 'malfeasance', I have assumed that he is referring to the tort of misfeasance in public office.
In considering the tort of misfeasance in public office, the first question is whether the proposed defendants are 'public officers'. In Neilson v City of Swan, Buss JA quoted with approval[46] the statement of Best CJ in Henley v Mayor of Lyme that:[47]
In my opinion, everyone who was appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the crown or otherwise, is constituted a public officer.
[46] Neilson v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136 [34].
[47] Henley v Mayor of Lyme (1828) 5 Bing 91, 107 - 108.
This statement was approved in Northern Territory v Mengel by Brennan J who stated that the tort was not confined to an abuse of office by the exercise of a statutory power.[48]
[48] Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307, 355.
For the purpose of this application, I proceed (without deciding) that it is at least arguable that each of the proposed defendants is a public office for the purpose of a misfeasance claim. While the claim of the tort of misfeasance in public office does not lie against the entity but against the relevant officers within that entity,[49] it is arguable that the proposed defendants could be vicariously liable for the acts of their employees.[50]
[49] Northern Territory v Mengel, 347 (Mason CJ, Dawson, Toohey, Gaudron & McHugh JJ).
[50] Neilson v City of Swan [155] - [157] and the authorities cited there.
The common law tort of misfeasance is 'closely confined' and does not occur even if there is an act of a public officer which he or she knows is beyond power and results in damage.[51] The elements of the tort are:[52]
(a)an invalid or unauthorised act;
(b)done maliciously;
(c)by a public officer;
(d)in the purported discharged of his or her public duties; and
(e)which causes loss or harm to the plaintiff.
[51] Northern Territory v Mengel, 347 (Mason CJ, Dawson, Toohey, Gaudron & McHugh JJ).
[52] Northern Territory v Mengel, 370 (Deane J); Neilson v City of Swan [54].
It is not clear from the documents filed by the plaintiff what is said to constitute the tort of misfeasance of the proposed first defendant or how this has caused the plaintiff loss. On its face, the originating motion asserts that the misfeasance was the reporting of the plaintiff to AHPRA and the police for investigation.
The plaintiff says that since he has been re-registered, he has been unable to obtain work in Western Australia and has been required to travel to the eastern states for work. While this may be the case, it is not clear as to the basis upon which the plaintiff asserted that this constitutes the tort of misfeasance. The first proposed defendant is not required to employ the plaintiff in any of its hospitals. For this reason, the failure to employ the plaintiff, of itself, is not an invalid or unauthorised act. As such, the conduct does not give rise to a cause of action.
I now turn to consider the report that was made to AHPRA and the police and whether this could give rise to the tort of misfeasance. Under s 144 of the National Law, a voluntary notification can be made to AHPRA about a registered health practitioner on a number of grounds. The National Law then sets out a process governing the consideration of any complaint. Similarly, a voluntary complaint can be made to police about an individual.
The plaintiff admits that during his meeting with the proposed first defendant, he referred to the Christchurch massacre (which had only happened a few days earlier) in the context of explaining how the investigation into him between 2010 to 2013 impacted on his life, including leading to the breakdown of his marriage, the stress it had caused him and his significant reduced prospects for employment as a consequence. In this context, it is not clear as to the basis upon which the plaintiff says that the proposed first defendant's report to AHPRA and the police was defamatory or a breach of any duty. The plaintiff does not assert the proposed first defendant's report of the matter was invalid or unauthorised. His complaint appears to be that he considers the first defendant should not have made the voluntary report.
Unless the making of the report was invalid or unauthorised, the voluntary reporting of the plaintiff's statements at the meeting cannot constitute misfeasance in public office. In addition, no evidence is put forward as to the second element of the tort, namely that the report was made maliciously.
The plaintiff also contends that the report by the proposed first defendant to AHPRA and the Western Australian police was defamatory of him. The basis for this allegation appears to be that he is required in all applications for employment to confirm whether he is the subject or has been the subject of any investigation by the police or regulatory board.
There are three elements as the tort of defamation: first, the defendant published a statement; second, the statement refers to the plaintiff; and third, the statement conveys a defamatory meaning of the plaintiff.
Under s 30 of the Defamation Act 2005 (WA), there is a defence of qualified privilege where the publication is made to a party who has an interest or apparent interest in having information, the publication is made to give the party information on that subject and the conduct is reasonable in the circumstances. This defence can be defeated where a plaintiff proves the publication was 'actuated by malice'.[53]
[53] Defamation Act, s 30(4).
As set out above, the National Law provides for a voluntary notification to be made in respect of any health practitioner. Where a notification is given in good faith, under s 237(3)(b) of the National Law, the notifier is not liable for defamation for giving the information. Similarly, a referral of a matter to the police is an occasion of qualified privilege unless the referral is motivated by malice. There is no allegation in the material filed by the plaintiff that the notification to AHPRA or the Police was not made in good faith or was motivated by malice.
For these reasons I do not consider the claim for defamation in the originating motion against the proposed first defendant has reasonable prospects of success and is, therefore, vexatious.
In his originating motion, the plaintiff contends that the outcome of the 2010 to 2013 investigation was confidential and was subject to a non‑disclosure agreement. In support of this allegation he referred me to a letter his solicitors received from the State Solicitor's Office, which I note is marked 'without prejudice'.[54] This letter concerns the District Court proceedings commenced by the plaintiff and not the separate regulatory proceedings in the State Administrative Tribunal. The regulatory complaint was settled on undertakings being given by the plaintiff as recorded in the orders of the State Administrative Tribunal. These undertakings are not subject to any non-disclosure agreement. Accordingly, the publication of these undertakings is not a breach of any confidentiality order.
[54] Affidavit of Anton Albert van den Berg filed 2 June 2020, Attachment 2.
In relation to the circumstances in which the offer of employment in Kalgoorlie was made and withdrawn, there is no evidence before the court to support a claim for damages. This would require the plaintiff to adduce evidence of whether there was a contract, if so, who the parties to the contract were, the terms of any such contract, and whether there was conduct of the proposed first defendant constituting a breach of the contract. Without evidence of this, neither the proposed originating motion nor the supporting affidavit discloses a viable claim for damages.
The final matter raised by the plaintiff against the first proposed defendant is in relation to the alleged obligation to re-use single-use only medical equipment. Neither the originating motion nor the affidavit set out any factual basis for the assertion that the proposed first defendant has obliged him to re‑use single‑use only medical equipment. In fact, in a voluntary undertaking to the Medical Board of Western Australia in May 2010, the plaintiff undertook that he would 'comply, in all circumstances, with the provisions of the Therapeutic Goods Act 1989 with regard to single use devices and drug ampoules.'[55] There is no evidence in the material filed by the plaintiff which supports his contention that he has been obliged to re‑use single‑use equipment.
[55] Affidavit of Anton Albert van den Berg filed 2 June 2020, Attachment 6.
Without any evidence supporting this contention, I do not consider that the proposed originating motion discloses a cause of action and is, as a consequence, frivolous.
Claim for damages against proposed second defendant
The plaintiff's claim for damages against the proposed second defendant arises as a consequence of his complaints as to the delay concerning his re-registration and the conditions attached to his re‑registration.
Pursuant to s 85 of the National Law, if a decision is not made on an application for registration within 90 days after receipt, or such longer period as agreed, the failure to make a decision is taken to be a refusal of the application to register. Under the National Law, an applicant may appeal to the State Administrative Tribunal against a decision to refuse to register him, to impose any conditions on his registration or to refuse to change or remove any conditions imposed on his registration.[56]
[56] Health Practitioner Regulation National Law (WA) Act, Schedule, s 199(1).
Where the Board decides to renew a practitioner's registration subject to a condition, the Board is required to give notice to the practitioner which must include information about the practitioner's appeal rights, how an application for appeal may be made in the period within which such application must be made.[57]
[57] Health Practitioner Regulation National Law (WA) Act, Schedule, s 112(5).
There is no evidence before the court whether the plaintiff sought to exercise his rights of appeal against any of the decisions that he complains of in his originating motion.
The plaintiff's claim for damages asserts that he has suffered damage from the delay in his re‑registration as well as the conditions imposed on his registration.
There are three primary difficulties with the plaintiff's claim. First, there is no evidence before the court that the failure of the plaintiff's employment applications was caused by the delay as opposed to the policies then in place at the hospitals to which the plaintiff applied. Second, the plaintiff consented to the conditions imposed on his registration and knew at the time that this was likely to impact on his employability. It is not clear how conditions that he consented to, which have had the impact anticipated by the plaintiff can now give rise to a cause of action against the proposed second defendant.
Third, there is no legal basis advanced for the plaintiff's claims. As such, the proceedings are doomed to fail. For this reason, this aspect of the originating motion would constitute an abuse of the process of the court.
In respect of the allegation that the conduct of the proposed second defendant constituted 'malfeasance', I repeat the observations set out above at [72] ‑ [75].
In respect of the second proposed defendant, the plaintiff says that the misfeasance is the delay in attending to the plaintiff's reports as to the effect the conditions of his license had on his ability to obtain work and the removal of these conditions. While I accept this may be the case, it is not clear whether (and if so, on what basis) the plaintiff alleges the proposed second defendant had a duty to remove the conditions on his license and its failure to do so was invalid or unauthorised. In addition, the plaintiff has not adduced evidence as to the second element, namely that any conduct was malicious.
In addition, even if the administrative decisions of the proposed second defendant were invalid, this does not, of itself, confer on the plaintiff an entitlement to damages.[58] Any claim for damages would only arise at common law if the plaintiff could establish the tort of misfeasance in public office or another basis at common law or equity for damages. The originating motion in its present form does not do this.
[58] Northern Territory v Mengel.
I turn now to consider the claim for defamation against the proposed second defendant. The plaintiff contends that the publication by the proposed second defendant of the conditions on his license in 2010, which he says were non‑disclosable, and in 2019, have damaged his reputation.
Under s 28 of the Defamation Act, it is a defence to publication of defamatory material if the statement is contained in a public document. 'Public document' is defined to mean any record or document open to inspection by the public kept under legislation.[59]
[59] Defamation Act, s 28(4).
Section 222 of the National Law requires the proposed second defendant to keep a national register. The national register is required to contain the information specified in the National Law, which includes whether there are any conditions imposed on a practitioner's registration.[60]
[60] Health Practitioner Regulation National Law (WA) Act, Schedule, s 225(k).
Section 225 of the National Law requires the information specified in that section to be included in a national register or specialists register for each registered health practitioner including the plaintiff. This specifically includes any conditions imposed on the practitioner's registration or the details of any undertaking entered into with the practitioner,[61] as well as any other information considered appropriate.[62]
[61] Health Practitioner Regulation National Law (WA) Act, Schedule, s 225(k).
[62] Health Practitioner Regulation National Law (WA) Act, Schedule, s 225(p).
The statements relied upon by the plaintiff were contained in the national register which is a public document under the Defamation Act. For this reason, even if the plaintiff could establish the publication of his registration with conditions attached is defamatory, the proposed second defendant has a defence unless the plaintiff can establish that the statement was not published honestly for the information of the public. The plaintiff has not addressed the basis on which he says the statement was not published honestly.
For these reasons I do not consider the originating motion discloses an cause of action for defamation against the proposed second defendant and is, therefore, frivolous.
Summary
The present case is not, in my view, one which the draft notice of originating motion discloses a viable claim or claims which, with appropriate amendment, could be put in a proper form. What is required if the plaintiff wishes to pursue a claim is a new document or documents that address recognised causes of action which may entitle him to seek relief. It is not for the court to suggest a form of originating process or writ of summons which might entitle the plaintiff to relief. As noted by Vaughan J in Ex parte Gates, to do so would be to go beyond the proper assistance that the court might offer to a self‑represented litigant.[63]
[63] Ex parte Gates [65].
In addition, the plaintiff has not adduced any evidence in admissible form of facts which might give rise to a cause of action against the proposed defendants. Order 67 r 5(4) of the Rules requires that the application for leave to file and serve a draft originating process be supported by affidavit. This requires the plaintiff to depose to the facts which support the claim made by him. In this case, the affidavits filed by the plaintiff do not serve this purpose.
Finally, allowing the plaintiff to file the proposed originating motion in its present form would bring the administration of justice into disrepute. To permit the claim to proceed in these terms would not accord with the expectation that the court's resources will be used efficiently and economically. This requires parties and the court to conduct litigation promptly and efficiently in a manner consistent with the attainment of justice.
It follows from these reasons that if, following delivery of these reasons, the plaintiff seeks to file another originating process or writ of summons which complies with the Rules, it will be necessary for the Court to assess the matter afresh having regard to the matters raised in these reasons.
Conclusion
In the circumstances, I am satisfied that Dr van den Berg's proposed originating summons would be an abuse of the process of the court and would be a frivolous and vexatious proceeding, within the meaning of those terms set out above at [35] and that leave should be refused.
For these reasons, I refuse the plaintiff's application. The order of the court will be that the application by ex parte originating motion dated 28 February 2020 for leave to file and issue a proposed originating motion is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill24 JUNE 2020
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