Sakalo v Dental Board of WA
[2004] FMCA 950
•10 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAKALO v DENTAL BOARD OF WA & ANOR | [2004] FMCA 950 |
| HUMAN RIGHTS – Sex discrimination – Applicant female endodontist – subject of complaint – finding of misconduct by Dental Board – whether discrimination based on sex – whether being female in a male dominated profession a sufficient basis for a claim of sex discrimination. PRACTICE AND PROCEDURE – Summary dismissal of application – no arguable case – application dismissed. |
Sex Discrimination Act 1984, ss.5, 18
Human Rights and Equal Opportunity Act 1986, ss.46PH(1)(b), 46PH(1)(c), 46PH(2),
Dental Act 1939 (WA), s.30(1)(a)
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
Burton v Shire of Bairnsdale (1908) 7 CLR 76
| Applicant: | LILIAN SAKALO |
| Respondents: | DENTAL BOARD OF WESTERN AUSTRALIA and AUSTRALIAN DENTAL ASSOCIATION (WA BRANCH) |
| File No: | PEG 180 of 2003 |
| Delivered on: | 10 December 2004 |
| Delivered at: | Perth |
| Hearing Date: | 10 November 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Miss F Vernon |
| Solicitors for the Respondents: | Tottle Partners |
ORDERS
The Application be dismissed.
The Applicant shall pay the Respondent’s costs including reserved costs if any to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules based upon Schedule 1 of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 180 of 2003
| LILIAN SAKALO |
Applicant
and
| DENTAL BOARD OF WESTERN AUSTRALIA and AUSTRALIAN DENTAL ASSOCIATION (WA BRANCH) |
Respondents
REASONS FOR JUDGMENT
In this application the respondents by notice of motion filed 30 September 2004 seek orders pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (the FMC Rules) to dismiss the proceedings against the respondents. The respondents submit that the application should be dismissed against the first respondent on the basis that the application fails to disclose a reasonable cause of action or is frivolous, vexatious or an abuse of process. As against the second respondent, it is claimed that the application should be dismissed as it fails to disclose a reasonable cause of action.
At the commencement of this hearing the applicant agreed that she did not wish to pursue the claim against the second respondent. In her points of claim filed 27 August 2004 she had in fact indicated that:
“The applicant is discontinuing the claim in the Federal Magistrates Court for discrimination based on disability against the first and second respondent.”
The Applicant further stated that she would continue a claim against the first respondent under "section 5 of the Sex Discrimination Act 1984 (the SDA) for discrimination based on sex". She states:
“The applicant will discontinue the claim against the second respondent for discrimination based on sex of the Sex Discrimination Act 1984.”
Hence, whilst it is clear that the current claim is sought to be made against the first respondent based on s.5 of the SDA, it is equally clear that the applicant wished to discontinue the claim against the second respondent.
At the commencement of the proceeding I was concerned that simply granting leave to discontinue the claim against the second respondent may be inappropriate and that instead, having regard to the fact that the respondents by the notice of motion filed 30 September 2004 sought an order pursuant to rule 13.10 of the FMC Rules, that it was preferable to accede to that request and dismiss the claim as against the second respondent. For reasons which become apparent during the course of this judgment it seems to me that is a more appropriate course to follow and accordingly I made orders as follows in relation to the second respondent:
(1) The application against the second respondent be dismissed pursuant to rule 13.10 of the FMC Rules.
(2) The applicant shall pay the second respondent's costs of and incidental to the application pursuant to schedule 1 of the FMC Rules to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules.
(3) That pursuant to rule 21.15 of the FMC Rules, I certify that it was reasonable of the second respondent to employ an advocate to appear on its behalf in the proceedings.
In support of the application to summarily dismiss the application the first respondent relied upon submissions filed 30 September 2004 and otherwise referred the court to affidavit material already filed, namely an affidavit of Wayne McKenzie Clark sworn 22 January 2004 and an affidavit of Peter McKerracher sworn 22 January 2004.
The applicant relied upon her points of claim referred to earlier in this judgment and filed 27 August 2004, together with a document entitled, "Applicant's Outline of Submissions in Reply to Respondent's Summary Dismissal Pursuant to Orders of McInnis FM Made 27 July 2004" filed 14 October 2004.
Reference was also made to the original affidavit of the applicant in support of her application sworn 21 November 2003.
Background
By way of background it is noted that the applicant had lodged a complaint under the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act) against the respondents and others alleging sex discrimination under the SDA and disability discrimination under the Disability Discrimination Act 1992 (the DDA). As indicated earlier, the applicant does not pursue any claim under the DDA and wished to discontinue the claim under the SDA against the second respondent leaving only the claim under that legislation against the first respondent.
The complaint lodged with the Human Rights and Equal Opportunity Commission (HREOC) was the subject of a termination notice issued on 24 October 2003 pursuant to s.46PH(2) of the HREOC Act. The complaint was terminated under s.46PH(1)(b) of the HREOC Act as it relates to allegations which were lodged more than 12 months after the alleged unlawful discrimination took place. It is further noted that in relation to the lack of provision of financial support by other parties to the Applicant that HREOC was satisfied that allegation was lacking in substance and was terminated pursuant to s.46PH(1)(c) of the HREOC Act.
The subject matter of the complaints occurred from 1998 to 2001.
To understand the background in this matter it is useful to note the chronology set out in the respondent's submissions which do not appear to be in issue. At all material times the applicant practised in the state of Western Australia as an endodontist. In the course of her practice she treated a patient in October 1996 who had been referred to the applicant by a general practitioner. The patient had a failed crown on tooth 12 and the reason for the referral was that her general practitioner had been unable to locate the root canal in order to insert a post and core for a new crown. The applicant treated the patient with the first consultation on 15 October 1996 and a final appointment on 10 December 1996.
At the 10 December appointment the applicant proceeded to complete root canal treatment. Arising out of this treatment a complaint was subsequently lodged by the patient with the Dental Board of Western Australia (the first respondent). That complaint was the subject of an inquiry held on 12 October 1998 and it is noted that the applicant was represented by legal counsel at that inquiry. A summons to the applicant to appear before the inquiry set out the following in relation to complaints made by the patient, namely:
(1) In or about December 1996 you were guilty of misconduct in a professional respect by reason of carelessness and/or incompetence in your treatment of the patient in that you failed to identify that in the course of your treatment of the patient you perforated the root of the upper right lateral incisor.
(2) In the alternative to the matters raised in paragraph (1), if you did identify that in the course of your treatment of the patient you perforated the root of the upper right lateral incisor, then you are guilty of careless and/or impropriety in that you failed to disclose to the patient that you perforated the root of the upper right lateral incisor.
(3) On 19 January 1998 you were guilty of misconduct in a professional respect by reason of impropriety in that you attempted to mislead the board in claiming to the board that you had informed the patient about the perforation to the root of the upper right lateral incisor on 10 December 1996.
It is not necessary in this decision to recite in detail the matters before the inquiry, though it is noted that a number of findings were made which resulted in the first respondent being satisfied that complaints (1) and (3) in the summons had been proved on the basis that the applicant was guilty of incompetence in respect of complaint (1) and that otherwise had misled the first respondent in the terms of complaint (3). Specifically, the first respondent after considering the evidence did not accept the applicant's version of events. It is perhaps relevant to note some of the comments made by the first respondent in its decision as follows:
Ms Sakalo's conduct and treatment of the tooth does not correspond to what should have been done by any reasonably competent dental practitioner upon the discovery of a perforation. The moment the perforation was apparent from the x-rays a reasonably competent dental practitioner would and should have recognised that the tooth could no longer be used to hold a post and core for a new crown and should have recognised that the tooth would have to be extracted …
The board considers it absolutely essential that upon identifying a perforation a specialist endodontist should advise the patient and record it …
Once the perforation was identified and any reasonable competent specialist would have:
(1) recorded that fact in her notes;
(2) informed the patient;
(3) reported that fact to the referring dentist.
Ms Sakalo took none of these three steps.
Indeed Ms Sakalo went ahead and proceeded to fill the root canal when, quite clearly, she should not have taken that step …
The perforation was, in Ms Sakalo's own words, 'huge' and the prognosis was poor (although to some extent Ms Sakalo in her evidence before the board at the inquiry sought to qualify this by saying that the long-term prognosis was poor). Although immediate extraction might not necessarily have been required in this case, there was no hope for the tooth to hold a post and crown and the only viable option would be extraction …
The evidence in this case indicates to the board that Ms Sakalo had departed from the acceptable standards on this occasion, revealing a lack of judgment on her part. Ms Sakalo's failure to identify the root perforation in this case indicates an inability to reach the judgments needed for the proper practice of the profession in the field of specialist endodontics. The board therefore finds that her failure on this occasion amounts to incompetence. …
The board considers there was an attempt by Ms Sakalo to mislead the board.
Orders were made on 1 December 1998 that the applicant provide a written undertaking that for a period of six months she allow her practice to be supervised and assessed by a senior specialist endodontist. The first respondent was to approve the supervisor and details of supervision. Other orders were made, but this was the key decision which is the subject of concern in this application.
Ultimately, the applicant agreed to a supervision proposal set out in a letter from Dr Tony Sandler, endodontist, dated 5 April 1999. That letter was forwarded by the applicant to the first respondent under cover of letter dated 13 April 1999 where the applicant states the following:
Enclosed is a letter from Dr Tony Sandler proposing supervision of my practice methods as an endodontist. I am agreeable to pages 1 and 2 of this letter dated 5 April 1999.
The letter from Dr Tony Sandler to the applicant dated 5 April 1999 (the supervision proposal) was approved by the first respondent in a letter dated 28 April 1999 where the registrar on behalf of the first respondent states the following:
Thank you for your letters dated 13 April 1999 relating to proposed arrangements for the supervision of your practice and in relation to the two courses attended by yourself during March 1999.
Your letters were considered at a recent meeting of the board.
The board approved the proposed arrangements for the supervision of your practice. Please note that the period of six months of supervised practice commences from the date of the board's approval being 19 April 1999.
The applicant ceased practising as an endodontist as from 6 May 1999. She in fact communicated that in a letter dated 19 May 1999 to the first respondent where she states:
NOTIFICATION OF CLOSURE OF PRACTICE
DELAY IN SUPERVISORY REQUIREMENTS
It is with regret that I write to you to advise that I have ceased practising as an endodontist as from 6 May 1999. For the time being illness prevents me from practising. I am hopeful with the passage of time I will recover sufficiently to enable me to practise again.
…
In her points of claim the applicant purports to rely upon ss.5 and 18 of the SDA which provide as follows:
Sex discrimination
5(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
(1A) To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
….
Qualifying bodies
18It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorization or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of the person's sex, marital status, pregnancy or potential pregnancy:
(a) by refusing or failing to confer, renew or extend the authorization or qualification;
(b) in the terms or conditions on which it is prepared to confer the authorization or qualification or to renew or extend the authorization or qualification; or
(c) by revoking or withdrawing the authorization or qualification or varying the terms or conditions upon which it is held.”The applicant then goes on to state:
With further documents that I will request from the respondent I will be able to prove that the 5 April 1999 supervisory program (appendix 1) was not then and not in the future metered out to any male colleague in the same circumstances not materially different to the applicant.
Before the court the applicant stated that she was not aware of any other endodontist being dealt with by the first respondent in relation to any matters of this kind and suggested that she desired to consider action by the first respondent against dentists generally in order to make her point. It would seem to be common ground that in Western Australia there is a small number of endodontists and it does not seem to be disputed that it would be properly regarded as a male-dominated profession.
The respondent submitted that despite the extensive documentation the applicant had produced no evidence that her sex was a consideration in the first respondent's approval of the supervision proposal. It was submitted that the applicant's consent was required and indeed provided before the supervision proposal was approved by the first respondent and that the first respondent had been informed by the applicant directly that she consented to the supervision proposal as indicated in the extracts of correspondence which I have included in this judgment. It was noted that there was some suggestion by the applicant that she may have been coerced into accepting the supervision proposal, though it is not alleged that any coercion occurred by the first respondent or that it played any part in obtaining her consent.
It was submitted that the applicant effectively acknowledges that at present she cannot produce evidence that the first respondent treated her less favourably than it would have treated a male dentist in the same circumstances. Reference was made to the passage to which I have referred earlier whereby the applicant sought further documents. It was argued by the respondent that the applicant has not identified what documents the first respondent has which would enable her to prove her assertion that she had been treated differently to a male colleague in the same circumstances or circumstances not materially different to the applicant.
In the alternative, it was submitted in any event that the mere fact that the first respondent had not imposed supervision requirements upon a male dentist in the same terms as the supervision proposal approved for the applicant would not be sufficient to support the applicant's discrimination claim. Although the applicant refers to the supervision program as amounting to "deregistration", it was submitted on behalf of the respondent that this is irrelevant and, in any event, incorrect as it is clear the first respondent, if it chose to do so, had power specifically to deregister the applicant pursuant to s.30(1)(a) of the Dental Act 1939 (WA) had it considered that it should do so.
It was submitted by the first respondent that it had approved the supervisory program it had been asked to approve and agreed to by the applicant. Rather than raise issues about impossibility of complying with the supervision proposal or indeed alleging sex discrimination, the first respondent was simply advised the applicant was retiring. It was argued that it was open to the applicant to appeal the decision of the first respondent and she failed to do so and it was not until some four years later that she sought to bring proceedings in this court to attempt to recover losses claimed as a result of the first respondent's imposition of the supervision proposal.
Relevant law
In considering the issue of summary dismissal it is appropriate to refer to the authority of Dixon J (as he then was) in Dey v Victorian Railways Commissioner (1949) 78 CLR 62 as follows:
“… A case must be very clear indeed to justify the summary intervention of the Court to prevent a Plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the Court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and an abuse of process”.
I further note the decision of O'Connor J in the High Court decision of Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92 where the court states:
Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals in the inherent jurisdiction of the court to protect its processes from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.
I accept that the power to summarily dismiss under rule 13.10 of the FMC Rules must be exercised with great caution.
In the present case the applicant, in my view, has not identified any factors which could properly be said would attract the operation of the SDA. She has failed, in my view, to establish even on a prima facie basis that she has been the subject of sex discrimination pursuant to s.5 of the SDA. In my view, where a party has been the subject of a properly constituted board of inquiry investigating and making a finding in relation to a complaint against a professional person which leads to a finding that the person has been guilty of incompetence and misleading the board, it is not sufficient for the applicant, as in this case, to merely assert that because she is female in a male-dominated profession that she is therefore subject to sex discrimination. I cannot see how it would assist the applicant to require the first respondent to produce records of past inquiries in relation to general dentists and not endodontists who it is conceded do not appear to have been subject to this specific complaint, inquiry or findings.
The applicant as a professional must be subjected to the due process of her profession. I cannot see on the material before me any evidence whatsoever that she has been treated less favourably than in the circumstances that are the same or not materially different to the way in which the first respondent treats or would treat a person of the opposite sex. It was submitted by the respondent, and I accept, that it is not sufficient in circumstances where the applicant can see no other reason why she has been the subject of the supervision proposal and findings of the first respondent to simply say, "I am a woman and have been treated differently."
The power to summarily dismiss, whilst clearly depriving an applicant of the opportunity to present her case, should also be recognised as providing at least some benefit to an applicant who otherwise would be exposed to the additional risk of costs if the matter were to proceed to trial. In this case the applicant had sought to issue subpoenas to a range of witnesses, some of whom are overseas. The cost and expense of a full hearing in circumstances where I am satisfied there is no proper basis or indeed arguable case to be made by the applicant and where I am prepared to find it is so obviously untenable that it cannot possibly succeed ultimately provides a benefit to the applicant. She is spared the further risk of significant additional costs if the application were permitted to proceed and I were not to exercise my discretion to summarily dismiss the application.
I should note in passing that there was a complete lack of reference to sex discrimination in a great deal of the correspondence passing between the parties prior to any complaint being lodged with HREOC. I note in particular minutes of meetings held between the applicant and the first respondent and in particular a letter purporting to set out those minutes dated 1 September 2000 from the applicant to the first respondent, though setting out a great deal of detail and a clear indication that the applicant was generally aggrieved, and I accept continues to be aggrieved by the process and findings, does not refer at any stage to any suggestion of sex discrimination.
In my view, it is open to the court to find as I do that this application cannot possibly succeed and it is proper to characterise it as frivolous or vexatious and/or an abuse of process. Accordingly, it follows
I should make orders dismissing the application with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 10 December 2004
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