Solomon v The Psychologists Board of Western Australia
[2007] WASCA 1
•15 JANUARY 2007
SOLOMON -v- THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA [2007] WASCA 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 1 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:31/2005 | 18 DECEMBER 2006 | |
| Coram: | McLURE JA BUSS JA | 14/01/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time refused | ||
| B | |||
| PDF Version |
| Parties: | JULIA SOLOMON THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA |
Catchwords: | Review of decision of single Judge refusing leave to appeal Extension of time required Whether any arguable grounds of appeal Turns on own facts |
Legislation: | Psychologists Registration Act 1976 (WA), s 46, s 56 |
Case References: | House v The King (1936) 55 CLR 499 Re Malley SM; Ex parte Gardner [2001] WASCA 83 Solomon v Psychologists Board of Western Australia [2005] WASCA 235 Solomon v The Psychologists Registration Board of WA [2005] WADC 35 Boschetti v Carr [2000] WASC 228 Busch v Stevens [1963] 1 QB 1 Gallo v Dawson (No 2) (1992) 66 ALJR 859 Hyams v Stuart King [1908] 2 KB 696 Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986 Solomon v Psychologists Board of Western Australia (2000) 21 (8) Leg Rep SL3b Solomon v Psychologists Registration Board (WA) (2006) 43 SR (WA) 9 Solomon v The Psychologists Board of Western Australia [2000] WASCA 266 Solomon v The Psychologists Board of Western Australia [2001] WASCA 226 Solomon v The Psychologists Board of Western Australia [2004] WASC 138 Solomon v The Psychologists Board of Western Australia, unreported; FCt SCt of WA; Library No 970548; 23 October 1997 Solomon v The Psychologists Board of Western Australia, unreported; SCt of WA; Library No 960695; 6 December 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SOLOMON -v- THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA [2007] WASCA 1 CORAM : McLURE JA
- BUSS JA
- Applicant
AND
THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : PULLIN JA
Citation : SOLOMON -v- PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA [2005] WASCA 235
File No : CACV 31 of 2005
(Page 2)
Catchwords:
Review of decision of single Judge refusing leave to appeal - Extension of time required - Whether any arguable grounds of appeal - Turns on own facts
Legislation:
Psychologists Registration Act 1976 (WA), s 46, s 56
Result:
Application for extension of time refused
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Ms F C E Davis
Solicitors:
Applicant : In person
Respondent : Phillips Fox
Case(s) referred to in judgment(s):
House v The King (1936) 55 CLR 499
Re Malley SM; Ex parte Gardner [2001] WASCA 83
Solomon v Psychologists Board of Western Australia [2005] WASCA 235
Solomon v The Psychologists Registration Board of WA [2005] WADC 35
Case(s) also cited:
Boschetti v Carr [2000] WASC 228
Busch v Stevens [1963] 1 QB 1
Gallo v Dawson (No 2) (1992) 66 ALJR 859
(Page 3)
Hyams v Stuart King [1908] 2 KB 696
Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Solomon v Psychologists Board of Western Australia (2000) 21 (8) Leg Rep SL3b
Solomon v Psychologists Registration Board (WA) (2006) 43 SR (WA) 9
Solomon v The Psychologists Board of Western Australia [2000] WASCA 266
Solomon v The Psychologists Board of Western Australia [2001] WASCA 226
Solomon v The Psychologists Board of Western Australia [2004] WASC 138
Solomon v The Psychologists Board of Western Australia, unreported; FCt SCt of WA; Library No 970548; 23 October 1997
Solomon v The Psychologists Board of Western Australia, unreported; SCt of WA; Library No 960695; 6 December 1996
(Page 4)
1 McLURE JA: The appellant seeks an extension of time in which to apply to review the decision of Pullin JA made on 23 November 2005 refusing leave to appeal from the decision of Crisford DCJ concerning a pleading matter.
2 The history is as follows. On 15 October 2004, Deputy Registrar Hewitt of the District Court dismissed the appellant's application to strike out a number of paragraphs of the amended defence filed on 24 June 2004 and ordered indemnity costs against the appellant. The appellant appealed from those orders. The appeal was heard by Crisford DCJ (Solomon v The Psychologists Registration Board of WA [2005] WADC 35). The appeal was confined to par 11 of the amended defence. It was an appeal de novo. The learned primary Judge dismissed the appellant's application to strike out par 11 of the amended defence and the appeal and ordered that the appellant pay the respondent's costs on an indemnity basis.
3 The appellant's action against the respondent ("the Board") is for misfeasance in public office and defamation. The claims arise out of the publication by the Board of matters arising from a disciplinary hearing conducted by the Board into the appellant's professional conduct. Paragraph 11 of the amended defence answers par 2.2 of the amended statement of claim filed on 8 June 2004.
4 Paragraph 2 of the statement of claim provides:
"2. Misfeasance in Public Office
2.1 On 16 September 1994 the Defendant Board published its findings (the "Findings") of an Inquiry into the conduct of the Plaintiff in respect to the Defendant Board's view that certain psychological services provided by her were not rebateable by the private health insurance fund, HBF (WA) Inc. ("HBF") …
2.2 The Defendant Board alleged at the Inquiry (Finding pages 1 and 2; paragraphs a), b), c) … that accounts for 16 of the Plaintiff's psychological services (Findings p2 line 30) to three of the Plaintiff's clients were raised for the purpose of recovery of a combined total rebate of $320 (HBF rebate schedule 1993) 'from HBF as if the psychological services were rebateable services provided by her (Dr Solomon) when … in fact they were not'."
5 Paragraph 11 of the amended defence comes under the heading "Context" which includes par 10 and pleads:
(Page 5)
- "10. The defendant admits paragraph 2.1 … of the amended statement of claim, and says further that the said inquiry ('the Inquiry') was held on 19 and 20 April 1994 and on 4 August 1994.
11. The defendant does not admit paragraph 2.2 of the amended statement of claim … and says further that the Inquiry was held following receipt of a written complaint ('the Complaint') dated 27 May 1993 from the Hospital and Benefit Fund of Western Australia Inc ('HBF'), which alleged that the plaintiff had:
11.1 'changed the name of the patient in her accounts in order to attract further benefits'; and
11.2 'was also itemising children's reading lessons as psychology services and that the reading classes were often run by teachers or other educational workers and not Dr Solomon herself'."
6 The appellant filed a notice of appeal in this Court. Her grounds of appeal challenge the correctness of the primary Judge's refusal to strike out par 11 of the amended defence. There was no independent challenge to the indemnity costs orders. The appeal to this Court was incompetent because leave was required. The appellant also filed an application in the appeal for a stay of taxation of the costs orders made by the primary Judge. The appellant's (oral) application for leave to appeal was heard and determined by Pullin JA on 23 November 2005 (Solomon v Psychologists Board of Western Australia [2005] WASCA 235). The appellant filed the review application out of time on 12 January 2006.
7 Pullin JA refused leave to appeal on two grounds. First, he concluded that the decision of the primary Judge to dismiss the strike-out application was correct for the reasons she gave. Secondly, even if the decision of the primary Judge could be shown to be attended with doubt, the appellant had not discharged her burden of showing that substantial injustice would be done if the decision remained unreversed. The appellant relies on four grounds of review. In her first ground of review, the appellant complains that Pullin JA disregarded the appellant's application to stay the costs order and other relevant matters which are only identified in the appellant's written submissions. There is nothing in Pullin JA's reasons to indicate that he considered the stay application. However, the refusal of leave to appeal had the consequence of removing any basis for a stay. Apart from the issue of costs, (which I address below) the balance of the appellant's submissions on grounds of review
(Page 6)
- 1 and 4 are in substance directed at the merits of the decision to dismiss the strike-out application.
8 In essence the primary Judge concluded that the matters pleaded in par 11 were relevant and ought not to be struck out. Pullin JA agreed. I also agree. In order to succeed in a claim of misfeasance in public office, the appellant has to prove that in the purported discharge of the Board's public duties it committed an invalid or unauthorised act and did so maliciously, that is, with an intention to cause injury or with knowledge of the invalidity or lack of power. In its defence, the Board relies on the statutory immunity provisions in s 46 and s 56 of the Psychologists Registration Act 1976 (WA), both of which protect the Board provided, inter alia, it acted in good faith.
9 The relevant pleading principles are accurately summarised in par 20.19.10 of Seaman, Civil Procedure Western Australia, Vol 1 as follows (citations omitted):
"Material is not struck out merely because it is unnecessary … and an unnecessary allegation will not be struck out if it is material, not as an essential ingredient of the cause of action [or defence], but in the sense that evidence could be led at trial to support it … but unnecessary material may be struck out if it will cause delay or embarrassment … "
10 The matter pleaded in par 11 of the amended defence is relevant in the sense that the evidence could be led at trial. In particular, it is relevant to the Board's bona fides in holding the inquiry. There is no sensible basis for claiming that the continued presence of par 11 in the amended defence has the capacity to prejudice, embarrass or delay the fair trial of the action.
11 Grounds of review 2 and 3 relate to an application said to have been made to the Deputy Registrar by the appellant to amend her statement of claim. The primary Judge regarded the appeal as confined to the appellant's unsuccessful application before the Deputy Registrar to strike out par 11 of the amended defence. On that subject Pullin JA said:
"The appellant said in oral submissions that part of her appeal to this Court concerned Crisford DCJ's failure to deal with a ground of appeal which was in the notice of appeal before her, namely that the plaintiff was denied leave to amend par 2.2 of the current statement of claim.
(Page 7)
- There was then some debate about exactly what this amendment was, and finally Dr Solomon revealed that in fact there was no formulated amendment to par 2.2 which the Deputy Registrar was asked to approve.
In those circumstances, clearly there was nothing to review on appeal before Crisford DCJ and it is, therefore, not surprising that she dealt only with the issue which remained which was, given the existence of par 2.2 in its present form, whether or not par 11 of the amended defence should be struck out or not."
12 Pullin JA is correct. If a party to an action wishes to amend his or her pleadings the proper course is to file an application for leave to amend accompanied by a minute detailing the proposed amendment. I infer the appellant's focus on her foreshadowed application to the Deputy Registrar to amend her statement of claim is based on a belief that the pleading in par 11 of the amended defence could not survive in the absence of par 2.2 of the statement of claim in its present form. For the reasons already given, that belief is misconceived. The strike-out application and the appeals from its dismissal are without merit.
13 I turn now to the issue of indemnity costs. The grounds of appeal before Pullin JA and the grounds of review before this Court did not disclose an independent challenge to the indemnity costs orders made by the primary Judge. However, I infer from the appellant's written submissions in the review that such a challenge may have been intended and I propose to address it. Some further background is required. At the hearing before the primary Judge, the Board contended that the strike-out application was an abuse of process because the same or a similar issue had already been determined against the respondent by Deputy Registrar Hewitt in an earlier strike-out application which had not been the subject of an application for leave to appeal. On that subject, the primary Judge said in her reasons:
"For reasons set out hereunder I find it unnecessary to decide this point. It was not argued as a preliminary issue. The plaintiff is a litigant in person. I have proceeded to decide her application on the merits as they now stand."
14 In her written reasons, the primary Judge ordered that "the plaintiff do pay the defendant's costs of the application forthwith to be taxed on a solicitor/client basis including reserved costs on 27 July 2004". She stated she would hear from the parties in relation to the costs of the appeal.
(Page 8)
- Although the primary Judge did not provide written reasons for making the order relating to the costs of the application, her reasons emerged when she dealt with the costs of the appeal on 10 March 2005. She said:
"The further order that I intend to make in this matter, insofar as it relates to the costs of the appeal, is that the plaintiff do pay the defendant's costs of the appeal forthwith, to be taxed on a solicitor/client basis. It is clear that notice was provided to the defendant [sic] that such a costs order would be sought in the event that it was appropriate. It is my view that on the hearing of the appeal there was no merit in matters put forward by Dr Solomon and that was - even putting aside the issue of whether the appeal or the application itself was a backdoor appeal.
Whilst I didn't decide the appeal on that basis and decided it simply on its merits, the issues of abuse of process can be considered by the Court in the making of the costs order. It is clear that the issue relating to paragraph 11 has been dealt with on at least one prior occasion. There is very little difference between matters that were previously argued and those argued on the appeal and I see no reason why the order that I have just made shouldn't be made in the circumstances."
16 The Court has a discretion in relation to the awarding of costs. In order to successfully challenge a costs order, the appellant is required to demonstrate an express or implied error: House v The King (1936) 55 CLR 499. It was open on the factual findings and conclusions of the primary Judge to award indemnity costs: Re Malley SM; Ex parte Gardner [2001] WASCA 83. No arguable error has been demonstrated.
17 There being no arguable grounds of review or appeal, the proper course is to refuse an extension of time in which to apply to review the decision of Pullin JA and I would so order.
(Page 9)
18 BUSS JA: I agree with McLure JA.
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