Solomon v The Psychologists Board of Western Australia

[2004] WASC 138

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SOLOMON -v- THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA & ANOR [2004] WASC 138

CORAM:   MASTER SANDERSON

HEARD:   10 JUNE 2004

DELIVERED          :   10 JUNE 2004

PUBLISHED           :  23 JUNE 2004

FILE NO/S:   CIV 1375 of 2004

BETWEEN:   JULIA SOLOMON

Plaintiff

AND

THE PSYCHOLOGISTS BOARD OF WESTERN AUSTRALIA
First Defendant

THE HOSPITAL BENEFIT FUND OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Administrative law - Application for variation of order of the first defendant - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

First Defendant             :     Mr D W Thompson

Second Defendant         :     Mr D H Solomon

Solicitors:

Plaintiff:     In person

First Defendant             :     Phillips Fox

Second Defendant         :     Solomon Brothers

Case(s) referred to in judgment(s):

Blair v Curren (1939) 62 CLR 464

Henderson v Henderson (1843) 3 Hare 100

Port of Melbourne Authority v Anshun (1981) 147 CLR 589

Rogers v R (1994) 181 CLR 251

Solomon v Psychologists Board of Western Australia [2001] WASCA 226

Case(s) also cited:

Butler v Simmonds Crowley & Galvin [1999] QCA 475

Carson v Legal Services Commissioner & Anor [2000] NSWSC 308

Commonwealth v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192

Cox v Journeaux (No 2) (1935) 52 CLR 713

Grimwade v State of Victoria (1997) 90 A Crim R 526

Hamersley Iron Pty Ltd v The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch & Ors [2001] WASC 20

Hunter v Chief Constable of Westlands Midlands Police [1982] AC 529

Jackson v Goldsmith (1950) 81 CLR 446

Moore v Inglis (1976) 9 ALR 509

Van Der Lee & Ors v State of New South Wales & Ors [2002] NSWCA 286

West & Ors v Jackson McDonald (A Firm) [2001] WASC 198

Williams & Ors v Spautz (1992) 174 CLR 509

1. MASTER SANDERSON:  On 14 October 1994 the first defendant determined that it would impose upon the plaintiff a penalty consequent upon certain conduct of the plaintiff, which had been referred to the Board.  Item (d) of the penalty was in the following terms:

   "The Board requires Dr Solomon, pursuant to Section 39(3)(c), to give it a written undertaking within seven (7) days of the date of this decision, that she will take personal responsibility for her accounting system.  Further that she will not render accounts for psychological services where either she or a registered psychologist under her supervision has not engaged in a face‑to‑face consultation with the patient."

2. By originating motion dated 25 March 2004 the plaintiff sought an order "that the applicant is not obliged to sign an undertaking as formulated by the first respondent in matters relating to the second respondent as part (d) of a penalty order imposed on the applicant on 14 October 1994".

3. At the conclusion of the hearing I indicated that I would dismiss the originating motion and that I would publish my reasons at a later date.  These are those reasons.

4. This is one of numerous applications brought by the plaintiff in relation to the penalty imposed upon her by the first defendant.  The history of the applications made by the plaintiff is to be found in the decision of Solomon v Psychologists Board of Western Australia [2001] WASCA 226. Apart from providing a history of the plaintiff's actions, in that decision White AUJ determined certain matters. The plaintiff had applied for leave to appeal against the penalty imposed on her by the first defendant. White AUJ dismissed that application. His Honour determined that the plaintiff had not appealed against the penalty order when she had the opportunity to do so, and so was estopped from appealing under the principle in Henderson v Henderson (1843) 3 Hare 100 (67 ER 319) as adopted in Port of Melbourne Authority v Anshun (1981) 147 CLR 589. Further, his Honour determined that s 44 of the Psychologists Registration Act 1976 created and prescribed the manner in which any appeal was to be brought. The time prescribed in s 44 had long since expired and there was no power to extend time. His Honour accordingly dismissed the application.

5. From this decision the plaintiff appealed.  She was granted leave to appeal and the matter was adjourned to allow a formulation by the Court of the grounds of appeal.  As I understand the position, although the grounds have now been formulated, the appeal itself is yet to take place.

6. It is clear that I was being called upon to determine precisely the questions raised before White AUJ.  They may have been formulated in a slightly different way but to grant the plaintiff the relief she sought would necessarily have involved considering again precisely the questions that were considered by White AUJ.  There is an issue estoppel:  see Rogers v R (1994) 181 CLR 251 per Deane and Gaudron JJ at 272, quoting Blair v Curren (1939) 62 CLR 464 per Dixon J at 531.

7. That then is the end of the matter.  The issues the plaintiff now seeks to have determined have already been decided against her.  It is for these reasons that I dismissed the application.  The plaintiff must pay the defendants' costs of the application, to be taxed.