Solomon v The Psychologists Board of Western Australia
[2000] WASCA 266
•7 SEPTEMBER 2000
SOLOMON -v- THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA [2000] WASCA 266
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 266 | |
| Case No: | SJA:1145/1994 | 7 SEPTEMBER 2000 | |
| Coram: | HASLUCK J | 7/09/00 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Various paragraphs of appellant's affidavits struck out as irrelevant and/or scandalous | ||
| PDF Version |
| Parties: | JULIA SOLOMON THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA |
Catchwords: | Rules of the Supreme Court Application for extension of time to appeal Application to strike out passages of affidavits said to be irrelevant and/or scandalous Implications of collateral challenge to finding of Full Court in earlier appeal Issue estoppel or grounds for stay |
Legislation: | Psychologists Registration Act 1976, s 42 |
Case References: | Bride & Ors v Anglo Australian Foods Pty Ltd [2000] WASCA 124 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 R v Department of Chief Minister (1987) 47 NTR 1 Walton v Gardiner (1993) 177 CLR 378 Jemielita v The Medical Board of Western Australia, unreported; SCt of WA (Owen J); Library No 920584; 13 November 1992 Legal Practice Board v Said, unreported; SCt of WA (Seaman J); Library No 940003; 12 January 1994 Ong v Dental Board of Western Australia, unreported; SCt of WA (Murray J); Library No 950442; 25 August 1995 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Rules of the Supreme Court - Application for extension of time to appeal - Application to strike out passages of affidavits said to be irrelevant and/or scandalous - Implications of collateral challenge to finding of Full Court in earlier appeal - Issue estoppel or grounds for stay
Legislation:
Psychologists Registration Act 1976, s 42
Result:
Various paragraphs of appellant's affidavits struck out as irrelevant and/or scandalous
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Representation:
Counsel:
Appellant : In person
Respondent : Ms F C E Davis
Solicitors:
Appellant : In person
Respondent : Phillips Fox
Case(s) referred to in judgment(s):
Bride & Ors v Anglo Australian Foods Pty Ltd [2000] WASCA 124
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Department of Chief Minister (1987) 47 NTR 1
Walton v Gardiner (1993) 177 CLR 378
Case(s) also cited:
Jemielita v The Medical Board of Western Australia, unreported; SCt of WA (Owen J); Library No 920584; 13 November 1992
Legal Practice Board v Said, unreported; SCt of WA (Seaman J); Library No 940003; 12 January 1994
Ong v Dental Board of Western Australia, unreported; SCt of WA (Murray J); Library No 950442; 25 August 1995
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1 HASLUCK J: This is an application by the respondent to strike out various paragraphs from the affidavits of the applicant, Julia Solomon, sworn 16 June 2000 pursuant to O 37 r 7.
2 Order 37 r 7 provides that the court may order to be struck out from an affidavit any matter which is scandalous, irrelevant or otherwise oppressive, or may order that the affidavit containing such matter be taken off the file.
3 The two affidavits the subject of the chamber summons are, firstly, an affidavit of Julia Solomon described as an affidavit explaining reasons for extension of time, sworn 16 June 2000. I will call this the extension of time affidavit. There is also a second and longer affidavit of Julia Solomon sworn 16 June 2000 concerning grounds of appeal. I will call this the grounds of appeal affidavit.
4 I note that on the respondent's side an affidavit has been filed of Trevor Hoddy sworn 3 August 2000, to which is exhibited various court documents and judgments in earlier proceedings. The Hoddy affidavit therefore becomes a useful point of reference in tracing the history of this matter.
5 The parties have been before the court many times and this makes it necessary to trace the chronology of the relevant events and the procedural processes in some detail.
6 The matter commenced with the respondent, The Psychologists Board of Western Australia, conducting an inquiry under s 42 of the Psychologists Registration Act 1976 on 19 and 20 April 1994 and again on 4 August 1994 to determine whether the applicant was guilty of improper conduct.
7 The charge the subject of the inquiry in respect of various notices issued by the Board was in these terms, and I quote:
"To determine whether in accordance with section 39(1)(e) of the Act you are guilty of improper conduct in a professional respect by reason of impropriety in that on or about - "
- the relevant date -
"you charged or caused to be charged - "
named persons are then specified -
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- "with an account for the provision of services to a patient in a form of presentation to HBF (WA) Inc so as to enable recovery from that source as if the psychological services were rebatable services provided by you when in truth and in fact they were not."
8 Particulars in support of the various incidents to which a charge in that form related formed part of the inquiry undertaken by the Board.
9 The tenor of the evidence led before the Board was to this effect: that patients had been brought to and had consulted Dr Solomon in respect of various learning difficulties. In each case Dr Solomon concluded that the patient should be admitted to a program of her devising entitled Reading for Sure. The reading lessons were given by a teacher employed by an agency whose services the appellant used.
10 Dr Solomon would consult with the teacher in respect of the particular patient and a program of remedial teaching would be devised. The evidence presented against Dr Solomon went on to suggest that the reading lessons were not conducted by the appellant or any registered psychologist under her supervision and it was in respect of those lessons that Dr Solomon's practice was to bill the patient or the person accepting responsibility for the account.
11 The case against Dr Solomon was that the account was rendered in each case in a form which portrayed it as a rebatable account for the purpose of its submission to HBF. It was Dr Solomon who received payment of the account, not the teacher, or the agency providing the teacher, who gave the remedial instruction. In essence then, the giving of the lesson was in each case, without being expressly identified as such, submitted and portrayed to HBF as a psychological service of a rebatable character in that it was submitted as a consultation with Dr Solomon.
12 The Board's findings were set out in written form. The nub of the verdict was that Dr Solomon, in charging in the manner that she did for a service that was not delivered by her or any psychologist employed by her in the presence of the patient, was guilty of a deliberate departure from accepted professional standards. Dr Solomon's conduct was, in the Board's view, unprofessional conduct being serious misconduct according to the standards of the profession. The Board applied the standards of professionals of good repute, honesty and competence.
13 The findings by the Board were handed down on 16 September 1994. With the assistance of legal advisers, Dr Solomon then instituted an
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- appeal to the Supreme Court on 13 October 1994. It is important to note that it was subsequent to the institution of the appeal that the penalty of the respondent was handed down, the penalty being contained in a document signed by Dr Richards as the chair of the inquiry Board on 14 October 1994.
14 The Board concluded that Dr Solomon should be publicly censured in that there should be some publication of the outcome of the inquiry in various publications and provision was made for payment of a penalty and for payment of costs and expenses incidental to the proceedings. I will henceforth call the combination of rulings made on that date, 14 October 1994, "the penalty."
15 The appeal against the findings of the Board eventually came on for hearing. The appeal was heard by Murray J and his decision in the matter was handed down on 6 December 1996. Dr Solomon, in argument before me, has stressed the importance of noting that Murray J was dealing only with the findings made by the Board, not with the penalty.
16 This emerges from the opening paragraph of the reasons for decision where his Honour commences by saying:
"This is an appeal against a decision of the Psychologists Board of Western Australia following disciplinary proceedings in respect of the appellant -"
- that is to say, Dr Solomon. He goes on to say:
"The appeal is not against the penalty imposed by the board but against its adverse findings."
18 It is important to note that in reviewing the evidence and the way in which the case was conducted, Murray J gave some attention to the adequacy of the procedures followed by the Board. He was satisfied that there was no breach of the rules of natural justice. He was satisfied that Dr Solomon had been allowed a sufficient opportunity to bring forward her case.
19 Murray J noted towards the end of his judgment that in essence the Board's finding was that the misconduct of the appellant - that is to say,
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- Dr Solomon - flowed from her deliberate departure from professional standards. In his opinion the finding of the Board on the evidence was justifiable that the conduct of the appellant constituted improper conduct. He went on to deal with a ground concerning breach of the rules of natural justice and said that no evidence about that matter was placed before the Board and the matter was raised by the appellant on information submitted to the Appeal Court for the first time. In his view, there was no arguable basis that there had been any breach of the rules of natural justice.
20 Dr Solomon then took an appeal against the decision of Murray J to the Full Court. The leading judgment of the Full Court was written by her Honour Wheeler J. It is apparent from her judgment that the Full Court gave full consideration, indeed ample consideration, as to what were the requirements of natural justice in circumstances of the kind brought before the Full Court.
21 In the course of dealing with that matter, Wheeler J noted that the inquiry was conducted in a manner resembling adversarial court proceedings. Her conclusion was that in all the circumstances it could not be said that there was any risk that the appellant had been left in the dark either as to the importance of the matters confronting her or as to the real possibility that an adverse finding might be made which would affect the outcome of the inquiry. Accordingly, the Full Court dismissed the appeal and thus upheld and affirmed both the findings of the Board and the earlier ruling by Murray J.
22 Dr Solomon then proceeded with an application for special leave to the High Court. Some time was taken up as that matter went forward. I digress to note that in the meantime there was some further controversy between the parties concerning the taxation of costs and the recovery of amounts that were said to be due as a consequence of the imposition of the penalty. There were various stages of disputation in regard to those matters and therefore, not surprisingly, some further time went by as those matters were attended to.
23 The High Court dismissed the application for special leave in April 2000. It was then that the final avenue of the original appeal was brought to a close.
24 In the meantime, on 3 August 1998, the appellant had filed application for leave to appeal against penalty, notwithstanding that the time had by then long since expired for appealing such a matter.
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- Dr Solomon's application for an extension of time for leave to appeal against penalty is still current. It is to that application that the two affidavits containing the disputed passages relate.
25 I digress briefly to say that a question may arise in this further appeal as to whether it is open to Dr Solomon to pursue an appeal against penalty when an earlier appeal had been advanced in respect of various matters concerning the inquiry before the Board. The decided cases suggest that where an aggrieved party has an opportunity to bring forward matters as part of a controversy, the party in question ought to exercise that opportunity otherwise the opportunity will be lost . One such case appears on the respondent's list of authorities, namely, Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
26 It is not necessary for me to make any decisive ruling upon an issue of this kind, although I note from counsel for the respondent that Anshun's case will be relied upon to suggest that the appellant, Dr Solomon, is precluded from successfully pursuing her appeal against penalty.
27 I will put the issue arising from Anshun's case to one side and focus upon the question of whether time should be extended in respect of the appeal against penalty. I note, as both parties before me appear to agree, that I am not required to deal with the application for an extension of time to appeal at this moment. That application will be dealt with at a later stage. The sole and narrow issue before me at this moment is whether the affidavits lodged by Dr Solomon in support of the application for an extension of time contain passages which should be struck out on the basis I have already mentioned.
28 It follows from the narrative I have given that the affidavits are going to a comparatively narrow issue. The main question is whether there is some explanation for the lengthy period of delay which has taken place since expiry of the time allowed for advancing an appeal against the Board's original decision.
29 It is also appropriate, when a court deals with an application for an extension of time, to give some consideration to the prospects of the appeal the subject of the application. In that regard, it would be appropriate to take note of matters, which might be used in a plea in mitigation, concerning the impact of the Board's penalty upon the professional career and standing of Dr Solomon. One can see a relevance of that kind.
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30 The matter in controversy before me today is whether portions of the affidavits are not sufficiently relevant because they seek to re-agitate findings made by the Board which were brought before the Appeal Court on a previous occasion.
31 This brings me to the contents of the affidavits complained of. I go firstly to the extension of time affidavit. In that affidavit, in paragraphs numbered 1 through to 42, Dr Solomon sets out the history of the matter and the relevant chronology in much the same way as I have described it thus far. I pause to note that, commencing at par 32 and running through to par 34, reference is made to certain discussions about enforcement of the penalty. It is those latter paragraphs in this affidavit which are challenged by counsel for the respondent upon the basis that I will come to shortly
32 The second affidavit, being the grounds of appeal affidavit, is in a much longer form. It canvasses a host of matters that were before the Board and before the Appeal Court previously. This can be gathered by some of the headings contained in the affidavit. For example, there is a heading at par 3 that "The Board's execution of penalties is discriminatory in its excessiveness." The heading concerning par 4 is, "As the imposed penalties were not required for the legitimate purposes of the Board under the Act, the Board's actions give rise to questions of motive and good faith." The heading concerning par 5 is, "The use of discretionary powers for an improper purpose."
33 These headings reveal the general thrust of the affidavit. The respondent argues that much of this affidavit should be struck out on the basis I have already referred to. The respondent's submissions in that regard are set out in these terms:
"The applicant's present application for an extension of time within which to appeal on penalty and her affidavits in support must necessarily be confined to an explanation of the delay and the issue of penalty based on the evidence before the respondent and bearing in mind that the primary consideration when imposing penalty is the need for the protection of the public."
34 The respondent argues that the applicant's affidavits, and particularly the grounds of appeal affidavit, are in many respects irrelevant, going beyond matters of the kind I have just mentioned. It is also said that, in addition to being irrelevant, most of the grounds of appeal affidavit, appear to be a collateral challenge to the appeal decisions of Murray J, the
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- Full Court and the High Court and this, it is submitted, is an abuse of process. Reference is made to Bride & Ors v Anglo Australian Foods Pty Ltd [2000] WASCA 124 and to Walton v Gardiner (1993) 177 CLR 378 at 393.
35 The appellant challenges that view of the matter. She has filed written submissions supporting her contention. She stresses that the present application for an extension of time (to which the affidavits relate) is in respect of penalty. This should be regarded as an entirely new and separate matter and considered independently of any of the matters previously dealt with by Murray J and by the Full Court.
36 She submits that it is misleading on the part of the respondent to suggest that the matter of penalty was disposed of by the single Judge and by the Full Court. She goes on to say that the material that has come to light, which she claims to be reflected on the face of the grounds of appeal affidavit, does have a relevance to the issue of penalty. She says further that the actions described in the evidentiary materials are seen to have determined the course leading to the imposition of the penalty with its grave consequences.
37 In turning to the question of whether material should be struck out as scandalous, she places a particular reliance upon the decision of R v Department of Chief Minister (1987) 47 NTR 1. She refers to a portion of the judgment of Ashe J in that case where he said that the passages under discussion were not so obviously scandalous or irrelevant as to involve the court in striking them out. He said that although on the face of the affidavit in that case there did appear to be irrelevant material, it would be very difficult without examining the whole background of the case to place himself in the position of the trial Judge to determine whether the matters were irrelevant.
38 He further affirmed as a general rule that a court would be reluctant to strike out material in proceedings taken before trial unless the irrelevant or scandalous material is substantial and obvious and such as to embarrass the court in dealing with the matter or the respondent in answering it.
39 I digress briefly to note that Ashe J was dealing with an application for certiorari where there had been no prior consideration of the factual issues upon which the application was based. That is unlike the circumstances in the present case where one finds reflected in the judgments of Murray J and the Full Court ample discussion of the matters in issue and the procedural processes which have been followed. In other
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- words, one is in a better position to make an appreciation of the relevance of the materials the subject of the disputed affidavits.
40 When I endeavour to resolve this controversy, it is perhaps useful to test the strength of the respondent's application by looking initially at par 5 of the grounds of appeal affidavit. In that paragraph and in the following subparagraphs Dr Solomon is suggesting that the board proceeded to use discretionary powers for an improper purpose. She says at par 5.1:
"While the charges which determine the inquiry misrepresented my conduct as fraudulent by the allegations that I received financial gain in allegedly rendering accounts for which I allegedly gave no service and, while the charges were later amended to include the issue of HBF rebatable accounts, the penalty notice mentioned neither of these conducts as related to the penalty. It referred only to 'reckless indifference of her accounting system'. This appeared to be an afterthought and patently against the evidence."
41 It is quite apparent that in par 5.1 and in following paragraphs a challenge is being made to the adequacy of the Board's finding and as to the fairness of its processes. That challenge is being advanced against the background I have described where such issues have previously been considered by the Appeal Court and dealt with.
42 I will not go to the full detail of matters appearing in par 5 of the grounds of appeal affidavit. It will be sufficient to single out one or two other passages which exemplify the case being advanced before me by the respondent today. Towards the end of par 5.5 the deponent, Dr Solomon, says that the ultimate motive - that is to say, the motive of the Board - was seen as politically inspired to impose any penalty which would professionally cripple her. She goes on to say and I quote these following paragraphs, 5.6 and 5.7, verbatim:
"5.6 I make this claim of the Board's motive as a result of the Board's unsuccessful attempts to bring unsustainable complaints against me to an inquiry since July 1992, with HBF, which shared political motive, being the instrument of the Board's success in this endeavour by 1994.
5.7 The Board misrepresented the purpose of the penalty in that its punitive content was incompatible with the claim of deterring reckless accounting by the profession in
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- respect to the unidentifiable definition of a rebate. The issue I believe would generally be perceived as one where the accounting was the responsibility of one private health fund."
43 She repeats elsewhere the notion that the Board's inquiry was conducted as an afterthought. At par 5.8(l) she says:
"5.8(l) The claim that the regulations of HBF defined a rebatable service as a 'face to face' consultation would be found by the profession to be entirely fictitious and unsustainable; nowhere except in the minds of the Board for the purpose of the Inquiry initiated by the HBF complaint."
44 In later paragraphs, from 5.14 through to 5.16, she asserts that the Board proceeded in an unorthodox and untoward manner in switching and shifting the basis of the allegations being advanced against her. Again I pause to note that this, in effect, is an allegation of a breach of the rules of natural justice and that was a matter dealt with by the Appeal Court.
45 It therefore appears from this brief review of those passages that, in effect, Dr Solomon in this application for an extension of time is purporting to bring an appeal on penalty but, in fact, is challenging the Board's findings and seeking to re-agitate various allegations concerning breach of the rules of natural justice, notwithstanding that findings have been made on the earlier appeals in respect of those matters.
46 As I have already noted, the respondent submits that the boundaries of relevance of the affidavit should be determined by reference to an explanation for the delay which might justify an extension of time and by reference to matters which are strictly confined to penalty. Such matters would go to issues of the kind usually addressed in mitigation as to the direct impact and proportionality of a penalty.
47 The respondent contends that the effect of the earlier rulings is, in effect, to create an issue estoppel or to create a situation which would justify the grant of a stay to prevent any further agitation of issues previously dealt with. This means that matters of the kind I have just described cannot properly be brought forward in these affidavits. I agree with this submission.
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48 It is against this background that I have reached the conclusion that many of the matters Dr Solomon seeks to rely upon are not properly relevant and some of them should be struck out as scandalous.
49 I find some authority for such an approach in Seaman Civil Procedure at par 37.7.1 to par 37.7.3. The learned author makes the point that matter can be regarded as scandalous if it contains unnecessary allegations bearing upon the moral character of individuals or which exceed the necessity for which the evidence is being led. The author goes on to say:
"The rule gives the Court wide power which it also has in its inherent jurisdiction to control affidavits drawn without a proper consideration of the matters referred to in rule 37 and to deal with oppression in all its forms including over-elaboration, prolixity and vagueness. If it is sought to strike out a great amount of affidavit material upon the basis that it is either irrelevant or oppressive the proper course is to make a separate application to determine the issue before the hearing of the application upon which the affidavit would be read."
50 That, in effect, is what counsel for the respondent has done in bringing this application to strike out separately this morning. It is against that background that I go to the terms of the summons itself. I turn firstly to the extension of time affidavit and, against the background I have described, I do consider that in regard to this matter the paragraphs complained of, that is to say the portion of par 32 commencing, "Chronology, December 1998 to June 2000" to the end and par 33 and par 34 are not sufficiently relevant. Further, they deal with without prejudice communications between the applicant and the respondent. It seems to me that they raise matters which go beyond a need to explain delay and are not sufficiently relevant to the application to extend time.
51 When I turn to the grounds of appeal affidavit I do not propose to go through all the matters in detail. It follows from what I have said to date that many of the paragraphs complained of can be regarded as irrelevant to the application for an extension of time because they are seeking to agitate matters in respect of which there has already been a final ruling. Further, and in any event, they are not strictly confined to the question of penalty to which this appeal proceeding purportedly relates.
52 I also note that some of the allegations the subject of the application are arguably scandalous, I will return to that point. However, on the basis
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- that certain paragraphs are irrelevant as appearing to be a collateral challenge to the appeal decisions of Murray and the Full Court, I would rule that par 4.2, par 4.4, par 5.7 to par 5.9 and par 5.20 to par 5.24 should be struck out.
53 Drawing together and applying the reasoning I have just unfolded, the ruling I make is to allow the application in terms of par 1 of the summons, that is to say, the following paragraphs are to be struck out: par 3, 3.1 to par 3.3 inclusive, par 4.2 to par 4.6, the last sentence of par 4.9, par 4.10, par 5, par 5.1 to par 5.25 inclusive, par 6, the second sentence of par 7.1, par 7.5 to par 7.25 inclusive.
54 I note additionally, when I turn to the basis of the application that the material complained of is scandalous, that I do see merit in this part of the application. Allegations are made of improper motives and malice on the part of the respondent Board and also of collusion between the respondent and HBF.
55 I have touched on some of the details in that regard earlier. I note also that in par 7.25 reference is made to an alleged dishonesty on the part of a solicitor who was involved in the advancement of the professional complaint against Dr Solomon. Again, in my view, this matter and an allegation of that kind is not only not relevant to the application for an extension of time but in the context in which it is raised can be regarded as scandalous.
56 Accordingly, upon the basis of this reasoning, I would identify the following paragraphs as ones that should be struck out on the grounds that they are scandalous; that is to say, par 3 and par 3.1, par 3.3, par 4.2, par 4.9, par 5.5 to par 5.25 and also par 7.25, being the paragraph I touched on a moment ago.
57 The final part of the application made by counsel for the respondent is that the affidavit should be taken off the court file and some authority is cited for that. There are circumstances in which that should occur but it seems to me, against the background of the lengthy dispute between the parties and controversies of many kind, it may provide a basis for some further controversy if the affidavit is removed from the file. My view is that, subject to the strikings-out previously mentioned, which leave some small part of the grounds of appeal affidavit in existence, the affidavit should remain as part of the court file.
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