Solomon v The Psychologists Board of Western Australia
[2001] WASCA 226
•30 JULY 2001
SOLOMON -v- THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA [2001] WASCA 226
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 226 | |
| Case No: | SJA:1145/1994 | 5 JULY 2001 | |
| Coram: | WHITE AUJ | 30/07/01 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Questions answered: (1) No (2) No (3) No | ||
| PDF Version |
| Parties: | JULIA SOLOMON THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA |
Catchwords: | Preliminary questions in relation to the findings of the respondent that the applicant was guilty of improper conduct (1) Whether the proposed appeal against the findings is competent (2) Whether, if competent, there is power to extend the time for institution of the appeal (3) Whether, if there is such power, it should be exercised |
Legislation: | Psychologists Registration Act, 141 of 1976 |
Case References: | Boomalli v Hake [1985] WAR 7 Chadwick v Commissioner of Stamp Duties [1977] 1 NSWLR 211 Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (1954) 94 CLR 554 Gallo v Dawson 93 ALR 479 Girando v Girando (1997) 18 WAR 450 Henderson v Henderson (1843) 3 Hare 115 Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 Matkevich v New South Wales Technical & Further Education Commission (1995) 36 NSWLR 718 Patterson v Public Service Board of NSW [1984] 1 NSWLR 237 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported, SCt of WA; Library No 7196; 18 July 1988 Re Carmody; Ex parte Glennan (2000) 74 ALJR 1148 Woods v Bate [1987] 7 NSWLR 560 Bride & Ors v Anglo Australian Foods Pty Ltd & Ors [2000] WASCA 124 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Jackamarra v Krakouer (1998) 153 ALR 276 Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992 Walton v Gardiner (1993) 177 CLR 378 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Preliminary questions in relation to the findings of the respondent that the applicant was guilty of improper conduct - (1) Whether the proposed appeal against the findings is competent - (2) Whether, if competent, there is power to extend the time for institution of the appeal - (3) Whether, if there is such power, it should be exercised
Legislation:
Psychologists Registration Act, 141 of 1976
(Page 2)
Result:
Questions answered:
(1) No
(2) No
(3) No
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):
Boomalli v Hake [1985] WAR 7
Chadwick v Commissioner of Stamp Duties [1977] 1 NSWLR 211
Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (1954) 94 CLR 554
Gallo v Dawson 93 ALR 479
Girando v Girando (1997) 18 WAR 450
Henderson v Henderson (1843) 3 Hare 115
Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88
Matkevich v New South Wales Technical & Further Education Commission (1995) 36 NSWLR 718
Patterson v Public Service Board of NSW [1984] 1 NSWLR 237
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported, SCt of WA; Library No 7196; 18 July 1988
Re Carmody; Ex parte Glennan (2000) 74 ALJR 1148
Woods v Bate [1987] 7 NSWLR 560
(Page 3)
Case(s) also cited:
Bride & Ors v Anglo Australian Foods Pty Ltd & Ors [2000] WASCA 124
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Jackamarra v Krakouer (1998) 153 ALR 276
Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992
Walton v Gardiner (1993) 177 CLR 378
(Page 4)
WHITE AUJ:
The background
1 The applicant, a registered clinical psychologist, seeks to appeal against the penalty imposed upon her by the respondent on 13 October 1994. The applicant has pursued a number of applications and appeals arising from the respondent's findings, in September 1994, following an Inquiry held in April 1994, that the applicant's conduct in relation to sixteen complaints against her constituted improper conduct within the meaning of s 39(1)(e) of the Psychologists Registration Act, 141 of 1976 ("the Act").
2 The history of these proceedings is conveniently set out in the Chronology furnished to the Court by the respondent, which reads as follows:
and 4 August 1994 |
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(Page 7)
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Appeal requested by the Applicant takes place. The Registrar allows the bill in its entirety. |
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1. The Applicant file an application for an extension of time within which to appeal, |
(Page 8)
(a) proposed Grounds of Appeal; (b) an affidavit explaining the reasons for delay, such documents to be filed and served by 15 June 2001.
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(Page 9)
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(Page 10)
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3. whether the proposed appeal is competent; 4. if competent, whether there is power to extend time; 5. if there is power, whether there should be an order extending time? |
The first preliminary question: Whether the proposed appeal against sentence is competent?
4 Section 44(1) and (2) of the Act provide:
"44. (1) A person aggrieved by an order of the Board, or by the refusal of an application to the Board for registration or restoration to the Register, or as to any limitation, restriction or condition imposed, may within three months after the date of the decision by the Board make application in writing to the Board in the prescribed manner for a statement by the Board in writing of its reasons for the decision, and the Board shall, as soon as reasonably may be after receipt of the application, furnish the applicant with such a statement.
(2) Within one month after receipt of the statement of the Board furnished under subsection (1) of this section the person aggrieved by the decision of the Board may appeal from that decision to the Supreme Court."
(Page 11)
6 The order imposing the penalties in question was clearly one which could in a proper case give rise to a right of appeal to the Supreme Court by a person aggrieved by such order, pursuant to the subsections I have quoted, I do not understand that proposition to be disputed by the respondent.
7 However, the provision in s 44(2) that "Within one month after receipt of the statement of the Board … the person aggrieved … may appeal from that decision to the Supreme Court", imposes a time limit upon the right of appeal. I shall advert to this issue hereunder.
8 If the proposed appeal had been instituted within the period of one month as prescribed by s 44(2) of the Act, that appeal would have been competent. No doubt, an application to join such an appeal to the appeal against the Board's findings would have had good prospects of success.
9 The applicant could therefore have combined an appeal against the penalties with the appeal against the findings, had she so wished. No good reason has been advanced for the failure to do so. On the principle expressed in Henderson v Henderson (1843) 3 Hare 115 (67 ER 319) the applicant is not now entitled to agitate an appeal when it is so closely connected with the subject of the appeal against the Board's findings (see Portof Melbourne Authority v Anshun (1981) 147 CLR 589 at 598 and the authorities there cited.
10 For the reasons which appear in relation to the second preliminary question, I am of the opinion that, after the expiration of the period of one month referred to in s 44(2), no right of appeal existed.
11 Accordingly, I would answer the first preliminary question in the negative.
The second preliminary question: If competent, whether there is power to extend time?12 In view of my answer to the first preliminary question, this second question does not, strictly, arise. However, in case I am wrong in the views expressed above, I shall proceed to deal with the second question as though it does arise.
(Page 12)
13 An appeal pursuant to s 44(2) of the Act is to be brought and the proceedings are to be had in such manner as is prescribed by the Rules of the Supreme Court. The relevant rules are contained in O 65. That Order applies to appeals to the Court "(d) where under the provisions of any Act, an appeal lies to the Court from a decision of any tribunal, and the procedure to be followed in the conduct of the appeal is not otherwise prescribed".
14 The term "tribunal" in that context includes, inter alia, a board (O 65 r 1).
15 Rule 2(2) provides: "This Order is subject to the provisions of the particular Act under which the right of appeal is conferred".
16 In relevant part, r 3(1) provides:
"Every appeal to which this Order applies shall be instituted by filing, within 21 days from the date of the decision against which the appeal is made … a notice of motion …".
17 Section 44(2) of the Act provides for any appeal to be instituted within one month after receipt of the relevant statement of the Board.
18 Under O 65, there is a wide discretion in the Court to extend the time for an appeal or for compliance with other time limits. However, when the particular statute which creates the right of appeal requires the filing of a notice of appeal within a stated time, there is no power under the Rules to extend that time.
19 In Patterson v Public Service Board of NSW [1984] 1 NSWLR 237 at 239 CA, Moffitt P, with whom Glass and Priestley JJA agreed, was concerned with the provisions of s 55(1) of the Government and Related Employees Appeal Tribunal Act 1980 (NSW), which provided:
"An appeal under section 54 shall be made within 21 days of the Tribunal's decision on the question of law the subject of the appeal and shall be made in accordance with the rules of the Supreme Court".
20 In that case, the claimants brought an appeal to the Court of Appeal from the Government and Related Employees Appeal Tribunal on a question of law, later than twenty-one days after the Tribunal's decision. They lodged a motion for an extension of time in which to bring their appeal. Counsel for the respondent raised a preliminary objection that the
(Page 13)
court had no jurisdiction to extend time and that the purported appeal was incompetent. Reliance was placed on Chadwick v Commissioner of Stamp Duties [1977] 1 NSWLR 211; affirmed (1978) 52 ALJR 589; 20 ALR 314.
21 Counsel for the claimants sought to rely upon the well-known principle that when the legislature without more confers jurisdiction on a court to hear and determine a matter it imports the ordinary incidents and procedures of the court including its relevant rules: Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (1954) 94 CLR 554 at 559; Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 96.
22 Moffitt P pointed out that the principle relied on is no more that a rule of construction and only applies in the "absence of express words to the contrary or of reasonably plain intendment" (otherwise): Electric Light and Power Supply Corporation Ltd (supra) at 560. His Honour went on to say:
"For example a contrary intention would be shown by providing a condition precedent to the exercise of the jurisdiction conferred or to the right to invoke it, such as a condition which makes the mandatory provision that some step shall be taken by a party (eg filing an initiating process within a fixed time.) Section 55(1) imposes a condition of this character".
23 The Court of Appeal held that the provision in the Government and Related Employees Appeal Tribunal Act, s 55that an appeal on a question of law from the tribunal to the Court of Appeal shall be made within 21 days after the tribunal's decision is mandatory and that no jurisdiction exists to extend the time to bring such an appeal.
24 Patterson v Public Service Board of NSW was referred to, apparently with approval, by Kirby J in Re Carmody; Ex parte Glennan (2000) 74 ALJR 1148 at 1153.
25 In Woods v Bate [1987] 7 NSWLR 560 at 569, McHugh JA (with whose reasons Hope JA agreed) said:
"Now it may be accepted that the lodging of an appeal within twenty-one days is mandatory: cf Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237".
(Page 14)
26 In Matkevich v New South Wales Technical & Further Education Commission (1995) 36 NSWLR 718 it was held that the requirement in s 55(1) of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) as to the making of an appeal under s 54 is mandatory and that time cannot be extended under the Supreme Court Rules. It was, however, further held by Priestley and Powell JJA (Kirby P contra) that, where s 55(1) has been complied with and an appeal is on foot, the court has power under the Supreme Court Rules to grant an extension of time in which to comply with the time for service of the notice of appeal stipulated in s 55(2).
27 Kirby P referred to the decision in Patterson as an "uncongenial precedent" but felt obliged to apply it in Matkevich.
28 The applicant submits that there is nothing in the Act which precludes an extension of time to appeal if it is consistent with the Supreme Court Rules. The decision in Patterson is to the contrary effect.
29 In my opinion, the principle enunciated in Patterson is to be applied in the present case.
30 Accordingly, I would answer the second preliminary question by holding that this Court has no jurisdiction to extend the time prescribed by the Act within which the applicant could file an appeal against the penalties imposed upon her.
The third preliminary question: If there is power, whether there should be an order extending time?
31 The answers I have given to the first and second preliminary questions have the effect that the third preliminary question falls away.
32 However, in case I am wrong in those answers, I propose to deal with the third question in its hypothetical form, namely, if there were power to extend time, should there be an order extending time?
33 In my opinion, there are several matters which would militate against the grant of an order extending time (were there power to make such an order.) These may be summarised as follows:
1. The proposed appeal relates to an order by the Board dating back to 14 October 1994. Accordingly, the applicant is out of time by more than six years and the explanations offered by her for the delay are, in my
(Page 15)
opinion, inadequate to afford any reasonable excuse for the failure to pursue the proposed appeal in time. The delay, in itself, is reason enough, in my opinion, to require a refusal of the application to extend the time: cf Gallo v Dawson 93 ALR 479; Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported, SCt of WA; Library No 7196; 18 July 1988; Girando v Girando (1997) 18 WAR 450, per Malcolm CJ at 455; Boomalli v Hake [1985] WAR 7 at 9.
- 2. Following legal advice, the applicant decided not to appeal against the penalties imposed and contented herself with an appeal as to the Board’s findings. As I understand her, the applicant decided not to appeal against the penalties as she considered that, if the appeal against the findings was successful, the question of penalties would fall away. A deliberate decision at the time, pursuant to legal advice, not to appeal against the penalties is, in my view, a cogent reason to disallow any belated attempt to institute such an appeal now.
3. The applicant argued that the respondent must always have been aware of her intention to challenge (as she put it) the penalties imposed. She pointed to the fact that the respondent had not opposed an application for a stay of the penalties pending the determination of the applicant's appeals against the Board's findings, suggesting that this in itself confirmed knowledge on the part of the respondent of her desire to challenge the penalties imposed. However, that proposition is illogical. There might be every reason to seek a stay of the penalties pending the outcome of an appeal against the findings, without any implication of a desire to appeal against (or otherwise challenge) the penalties imposed, on the basis that a successful appeal against the findings would have the effect of setting aside the penalties consequent upon the findings, whether or not those penalties were in themselves objectionable.
34 The applicant submitted that:
"There was at all times an assumption that the 'stay of penalty' would apply until the appeal process was complete. The respondent did not at any time challenge that assumption. The appeal against the penalty began at the first opportunity after
(Page 16)
the conclusion of the second appeal and resumed as soon as practicable after the High Court appeal".
35 While the assumption referred to may have been made by the applicant herself, there is nothing before me to indicate that the respondent ever made such an assumption and it certainly does not arise by necessary implication, as I have suggested above.
36 In my opinion, if the proposed appeal were competent and if there were power in the Court to extend the time for an appeal (contrary to the views expressed above) it would, for the reasons I have expressed, be inappropriate to exercise such power in the present case.
37 It follows that I would answer the third preliminary question in the negative.
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