Schulz and Medical Board of Queensland

[2001] AATA 468

Administrative

Appeals

Tribunal

 

DIRECTION AND REASONS FOR DIRECTION [2001] AATA 468

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q00/1176

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN SCHULZ

Applicant

And MEDICAL BOARD OF QUEENSLAND

Respondent

DIRECTION

Tribunal Dr EK Christie, Member

Date31 May 2001  

PlaceBrisbane

Decision

The Tribunal directs:

·     it has no jurisdiction to hear this matter; and

·     this application for review is not frivolous or vexatious.

(Sgd)   EK CHRISTIE     

MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE - Mutual Recognition Act 1992 - reviewable decision - jurisdiction of Tribunal - whether application is frivolous or vexatious.

Administrative Appeals Tribunal Act 1975 ss 3, 42A, 42B

Mutual Recognition Act 1992 ss 20, 533, 534

Australian Broadcasting Tribunal v Bond & Ors (1990) 94 ALR 11

Attorney-General v Wentworth (1988) 14 NSWLR 481

Re Cooper and Repatriation Commission (1995) 38 ALD 164

Re Williams and Australian Electoral Commission (1995) 38 ALD 366

REASONS FOR DIRECTION

31 May 2001  Dr EK Christie, Member     

History

1.      Dr Schulz obtained a certificate of limited registration as a medical practitioner in Queensland on 13 December 1965 and obtained full registration as a medical practitioner in Queensland on 1 January 1967.  On 9 September 1975, he was granted registration as a specialist in the speciality of orthopaedics.  Dr Schulz obtained registration in a number of States throughout Australia.

2.      Following an enquiry by the Medical Board of Western Australia on 2 August 2000, Dr Schultz was found guilty of “gross carelessness in the treatment of one patient and grossly careless and negligent in the treatment of another patient”.  Guilt in a third case was found to remain unproven.

3.      The Medical Board of Western Australia issued the following condition in relation to Dr Schulz’s practice:

“[Dr Schulz] ….be excluded from all forms of medical practice other than that undertaken as part of the comprehensive training programme in a teaching hospital.  Such a programme to be acceptable to the Board and following the advice of the Australian Orthopaedic Association, and completed to the satisfaction of the Board.”

4.      The Medical Board of Queensland imposed the same condition on Dr Schulz’s registration in Queensland.

5.      Dr Schulz has appealed the decision of the Medical Board of Western Australia in Western Australia.

Decision under Review

6.      On 13 December 2000 Dr Schulz made an application for review of decision on the following basis:

·“The decision of the Western Australian Medical Board on which the Queensland Medical Board acted is wrong and the Queensland Medical Board should have exercised its discretion under the Mutual Recognition Act (Qld) 1992 and not applied the condition to my registration in Queensland

·The penalty applied is excessive with regard to the alleged offences.”

Contentions and Submissions of the Parties

7.      Dr Schulz made the following submissions:

· that subsection 34(1) of the Mutual Recognition Act 1992 enabled an application for review to be made to the Administrative Appeals Tribunal of a decision of a local registration authority in relation to its functions;

·     that the function involved is the decision of the Medical Board of Queensland to accept, and to apply, without questioning the finding of, and penalty imposed by, the Medical Board of Western Australia;

·     that the grounds for a review of the Medical Board of Western Australia were that it was wrong and that the penalty was excessive;

·     that the findings of the Medical Board of Western Australia were a travesty of justice;

·     that the Mutual Recognition Act cannot authorise the Medical Board of Queensland to punish him by affecting his registration in Queensland;

·     that the application for review was not frivolous or vexatious since his professional interest was adversely affected in Queensland by the decision of the Medical Board of Western Australia; and

·     that the Tribunal should re-hear those issues previously determined by the Medical Board of Western Australia.

8.      Mrs Alexia Houston and Mr Andrew Forbes of Messrs Phillips Fox, Solicitors,  appeared on behalf of the Medical Board of Queensland and made the following submissions:

· that the application for review should be struck out under Section 42A of the Administrative Appeals Tribunal Act 1975 because:

(i)there was no legislative basis upon which the Western Australian decision could be appealed to the Administrative Appeals Tribunal.  The relevant legislation in Western Australia provided for an appeal to the Supreme Court in Western Australia;

(ii)under subsection 34(1) the Tribunal had jurisdiction for review of a decision of a local registration authority in relation to its functions under the Act. The local registration authority was the Queensland Medical Board;

(iii)one of the provisions of the Act that fettered the Tribunal’s jurisdiction was Section 20;

(iv)subsection 20(5) of the Act states that the local registration authority may impose conditions on registration. However, it may not impose conditions that were more onerous than would be imposed in similar circumstances if it were registration effected apart from this part, unless they were conditions that applied to the person’s registration in the first State or that were necessary to achieve equivalence of occupations;

(v)the Medical Board of Queensland had not acted inappropriately; and

(vi)the conditions imposed by the Medical Board of Queensland were not more onerous than those imposed by the Medical Board of Western Australia. As the jurisdiction of the Tribunal was limited under subsection 20(5) to situations where the condition imposed in Queensland was more onerous than that imposed in Western Australia, the Tribunal did not have jurisdiction to hear this matter.

9. Ms Houston further submitted that the application should be struck out under Section 42B of the Administrative Appeals Tribunal Act for being frivolous and vexatious because:

·     Dr Schulz seeks a determination from the Tribunal that the decision of the Medical Board of Western Australia was wrong.  The Tribunal does not have the jurisdiction to make this finding.  The current proceedings were therefore futile and should be struck out;

·     the proceedings have not been brought for the purpose of having the court adjudicate the decision of the Medical Board of Queensland but for the collateral purpose of adjudicating the decision of the Medical Board of Western Australia; and

·     the current proceedings were obviously untenable and groundless to be utterly hopeless.

10.     Ms Houston concluded with the submission that Dr Schulz’s application should be adjourned indefinitely under subsection 40(1)(c) pending the determination of the applicant’s appeal in Western Australia.  Until the decision in Western Australia had been successfully appealed (in Western Australia) there could not be a determination by the Tribunal in Queensland of these issues.

Legal Framework

·     Reviewable Decision

11. Subsection 3(3) of the Administrative Appeals Tribunal Act  defines “decision” as including –

·     making, suspending, revoking or refusing to make an order or determination;

·     giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

·     issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

·     imposing a condition or restriction;

·     making a declaration, demand or requirement;

·     retaining, or refusing to deliver up, an article;

·     doing or refusing to do any other act or thing.

12.     This definition would be capable of applying to decisions that do not have a quality of finality.  However, as Mason CJ explained in Australian Broadcasting Tribunal v Bond and Others (1990) 94 ALR 11 at p.23, the definition must be more narrowly construed. The Chief Justice was considering the nature of a reviewable decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth).  He said at p.23:

“To interpret ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.

The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations.  That answer is that a reviewable ‘decision’ is one for which provision is made by or under statute.  That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.  A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.”

and

“….To interpret ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.”

13. Subsection 34(1) of the Mutual Recognition Act provides for review of decisions.

“34(1)  Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Tribunal for review of a decision of a local registration authority in relation to its functions under this Act.

(2)       In subsection (1):

“decision” has the same meaning as in the Administrative Appeals Tribunal Act 1975.

(3)       If a local registration authority gives a person written notice of the making of a decision referred to in subsection (1), the notice must include a statement to the effect that:

(a)subject to the Administrative Appeals Tribunal Act 1975, application for review of the decision may be made to the Tribunal by a person whose interests are affected by the decision; and

(b)except where subsection 28(4) of that Act applies, application may be made in accordance with section 28 of that Act by or on behalf of that person for a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving the reasons for the decision.

(4)       Any failure to comply with subsection (3) does not affect the validity of the decision.

14.     The Tribunal has considered the legal meaning of “decision” (paragraphs 11 and 12) against the following provisions of the Mutual Recognition Act:

·     “Entitlement to registration and continued registration

20(1)    A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.

(2)       The local registration authority may grant registration on that ground and may grant renewals of such registration.

(3)       Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State.

(4)       Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws:

(a)apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and

(b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.

(5)       The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person’s registration in the first State or that are necessary to achieve equivalence of occupations.

(6)       This section has effect subject to this Part.

·     Postponement of registration

22(1)    A local registration authority may postpone the grant of registration if:

(a)any of the statements or information in the notice as required by section 19 are materially false or misleading; or

(b)any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or

(c)the circumstances of the person lodging the notice have materially changed since the date of the notice or the date it was lodged; or

(d)the authority decides that the occupation in which registration is sought is not an equivalent occupation.

(2)If the grant of registration has been postponed, the local registration authority may in due course grant or refuse the registration.

(3)The local registration authority may not postpone the grant of registration for longer than a period of 6 months, and the person is entitled to registration immediately at the end of that period, unless registration was refused at or before the end of that period.

(4)Nothing in subsection (3) prevents earlier registration from being granted on a review by the Tribunal

·     Refusal of registration

23(1)    A local registration authority may refuse the grant of registration if:

(a)any of the statements or information in the notice as required by section 19 are materially false or misleading; or

(b)any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or

(c)the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.

(2)A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.

·     Disciplinary action

33(1)    If a person’s registration in an occupation in a State:

(a)       is cancelled or suspended; or

(b)       is subject to a condition;

on disciplinary grounds, or as a result of or in anticipation of criminal, civil or disciplinary proceedings, then the person’s registration in the equivalent occupation in another State is affected in the same way.

(2)       However, the local registration authority of the other State may reinstate any cancelled or suspended registration or waive any such condition if it thinks it appropriate in the circumstances.

(3)       This Section extends to registration effected apart from this Act.

(4)       This Section has effect despite any other provisions of this Part.”

15.     The Tribunal concludes in applying the statutory definition of “reviewable decision” and the common law meaning to the above provisions of the Mutual Recognition Act, the jurisdiction of the Tribunal is limited to subsection 20(2), subsection 20(3), subsection 20(5), Section 22 and Section 23 of the Mutual Recognition Act. There is no express jurisdiction given to the Tribunal under Section 33 of the Mutual Recognition Act. Section 33 does not provide for a reviewable decision according to its statutory meaning.

16. The Tribunal concludes that the conditions imposed by the Medical Board of Queensland are the same as those imposed by the Medical Board of Western Australia. Applying the jurisdiction of the Tribunal under subsection 20(5) of the Mutual Recognition Act in these circumstances, the Tribunal finds that it does not have the jurisdiction to hear Dr Schulz’s application for review.

17.     The Tribunal further finds that Section 22 and Section 23 of the Mutual Recognition Act have no application in the circumstances of Dr Schulz’s application for review.

18. The Tribunal has carefully considered the submissions on whether Dr Schulz’s application for review is frivolous or vexatious under Section 42B of the Administrative Appeals Tribunal Act:

·     “Power of Tribunal where a proceedings is frivolous or vexations

42B(1)     Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:

(a)       dismiss the application; and

(b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

(2)A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.

(3)The Tribunal may discharge or vary such a direction.”

19.     In Re Cooper and Repatriation Commission (1995) 38 ALD 164, a decision involving an application under Section 42B, the Tribunal said at 165:

“’frivolous’ means ‘obviously unsustainable’:  Attorney-General (Duchy of) Lancaster v London & North Western Railway [1892] 3 Ch. 274.”

·     In Re Williams and Australian Electoral Commission (1995) 38 ALD 366, the Tribunal said at 373:

“The test to be applied in determining whether proceedings are vexatious can be expressed either subjectively or objectively, depending upon the head of ‘vexatiousness’ one is considering.”

The Tribunal also noted (at 372):

“The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly:  per Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1965] ALR 636;  (1964) 112 CLR 125.  The mere fact that a proceeding is shown to have no foundation in fact is sufficient to justify a finding that it was commenced vexatiously or without reasonable cause:  per von Doussa J in Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324.”

·     In Attorney-General v Wentworth (1988) 14 NSWLR 481, Roden J said at 491:

“It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds.  I believe that the test may be expressed in the following terms:

1.Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2.They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3.They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”

20.     The Tribunal accepts Dr Schulz’s submissions that he has an interest that has been adversely affected by the decision of the Medical Board of Western Australia and now seeks to redress what he believes to be an injustice done to him.  However, the Tribunal makes the observation that Dr Schulz was not legally represented and may not properly understand how the Commonwealth administrative law review mechanisms operate.  In addition, Dr Schulz may not fully appreciate the jurisdictional constraints imposed on the Tribunal.

21.     Taking into account all of the above reasons, the Tribunal decides that Dr Schulz’s application for review is not frivolous or vexatious.

22.     The Tribunal directs:

(a)      that it has no jurisdiction to hear this matter; and

(b)      that Dr Schulz’s application for review is not frivolous or vexatious.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the direction herein of Dr EK Christie, Member

Signed:         Emma Oettinger
  Associate

Date/s of Hearing  19.4.01
Date of Direction  31.5.01    
Rep. for the Applicant               Applicant appeared in person

Solicitor for the Respondent     Ms A Houston and Mr A Forbes, Messrs Phillips Fox