Souraki Azad v Jose - [2023] WASC 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SOURAKI AZAD -v- JOSE [2023] WASC 160
CORAM:   LUNDBERG J
HEARD:   16 MAY 2023
DELIVERED          :   19 MAY 2023
FILE NO/S:   CIV 1065 of 2023
BETWEEN:   MOHAMMAD AMIN SOURAKI AZAD
Plaintiff
AND
ROSS JOSE
Defendant

Catchwords:

Defamation - Practice and procedure - Urgent application by plaintiff to join Australian Health Practitioner Regulation Agency as additional defendant to the action - Plaintiff seeks urgent restraints against Australian Health Practitioner Regulation Agency - Application arises from the suspension of the plaintiff as a medical practitioner - Not necessary for party to be joined to the action and numerous deficiencies in the relief sought - Turns on own facts

Legislation:

Defamation Act 2005 (WA)
Health Practitioner Regulation National Law
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed
Affidavits filed by plaintiff to be made subject to restriction order under Order 67B rule 5 RSC

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	Ms J A Sims
Non-party	:	Ms J M McKenzie

Solicitors:

Plaintiff	:	In Person
Defendant	:	Steedman Stagg Lawyers
Non-party	:	MinterEllison (for Australian Health Practitioner Regulation Agency)

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

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Azad v Mithila Family Trust t/as Rockingham GP [2023] FCA 404
Eshelby v Federated European Bank Ltd [1932] 1 KB 423
Hunter Automotive Group Pty Ltd v Range Motors Pty Ltd [2021] WASC 122
Soclever Investments Pty Ltd as trustee for the Andrew Tonner Family Trust v Jaytona Pty Ltd [2021] WASC 133

Table of Contents

A. Introduction and summary

B. Background

The nature of the action

Directions hearing on 3 April 2023

Application to restrain Steedman Stagg Lawyers

Non-compliant writ of summons

C. Application to join and restrain AHPRA

Overview

Letter from AHPRA dated 8 May 2023

Plaintiff's minute of proposed orders filed on 5 May 2023

Basis for joinder

D. Disposition

Joinder and restraints

Allegedly scandalous affidavits

E. Orders

LUNDBERG J:

A. Introduction and summary

This is a defamation action brought by the plaintiff against another medical practitioner, the defendant. The plaintiff and the defendant formerly worked in a medical practice with each other, in Rockingham. The practice in question was known as the Rockingham Maternity and Family Practice (RMFP). For convenience, I will refer to the plaintiff as Dr Azad and the defendant as Dr Jose.
These reasons relate to an application which has been brought by Dr Azad, who seeks to join the Australian Health Practitioner Regulation Agency (AHPRA) as an additional defendant to the action. The application also seeks various restraints against AHPRA, with no undertaking as to damages proffered by the plaintiff.
The plaintiff is unrepresented. As a result, the present application has not been prepared or filed precisely in accordance with the Rules of the Supreme Court 1971 (WA) (RSC) or the court's…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 160
Decision Date

CaseChat Overview and Summary

Souraki Azad, the applicant, sought an interlocutory injunction against the Australian Health Practitioner Regulation Agency (AHPRA) and others, arguing that they were engaged in a conspiracy against him. The case was heard in the Federal Court of Australia. The primary dispute centred around the applicant's claim that AHPRA and others were unlawfully attempting to suspend his medical registration based on fabricated allegations. The applicant sought an injunction to prevent AHPRA from implementing its suspension process and to restrain AHPRA from taking certain actions, including retaliatory actions and threatening communications.

The court had to determine whether the applicant had a sufficiently arguable case to warrant interlocutory relief, as well as whether the balance of convenience favoured granting the injunction. The legal issues included whether the applicant's allegations were serious enough to sustain a claim for final relief and whether the public interest in maintaining the interim suspension outweighed the applicant's right to practice medicine without undue interference.

The court found that the applicant had not provided sufficient evidence to support his claims of conspiracy and unlawful actions by AHPRA. The court also noted that the applicant's request for relief was overly broad and vague, making it difficult to determine precisely what actions he sought to prevent. The public interest in ensuring that medical practitioners adhere to professional standards was deemed to outweigh the applicant's desire to continue practicing while his case was under investigation.

The court dismissed the application, finding that the applicant had not demonstrated a serious question to be tried or a balance of convenience favouring his application for interlocutory relief. The court held that there was no evident basis in the materials for making such orders and that the applicant's requests were too vague to be considered. The application was therefore dismissed with costs to be paid by the applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In this regard, I recognise that, in applications for interlocutory relief, it may be necessary for the court to give careful consideration to the legal basis on which an applicant claims to be entitled to permanent relief: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [18] (Gleeson CJ). Gleeson CJ explained that the purpose of an interlocutory injunction is to preserve the status quo until the rights of the parties can be determined at the hearing of the suit. This means that a plaintiff must be able to show sufficient colour of right to the final relief in aid of which interlocutory relief is sought. If there is no serious question to be tried because, upon examination, it appears that the facts alleged by the plaintiff cannot, as a matter of law, sustain such a right, then there is no subject matter to be preserved.[6][6] ABC v Lenah Game Meats Pty Ltd [15] (Gleeson CJ). I understand the plaintiff considers that AHPRA and others are engaged in a conspiracy against him and that they have, at best, misunderstood his actions and his motivations and, at worst, deliberately constructed a case against him. However, none of the material adduced provides me with any satisfaction that the plaintiff has a recognised basis in law to sustain final relief against AHPRA (or, indeed, the Medical Board). Put another way, the material does not support a contention that the plaintiff has a seriously arguable basis to restrain AHPRA (or the Medical Board) from implementing its suspension process. The material adduced also fails to demonstrate that the balance of convenience in the present situation favours an approach which would allow the plaintiff to continue to practice while these serious allegations are being further investigated. My present assessment is that the public interest considerations weigh heavily in the balance of convenience in favour of maintaining the interim suspension of the plaintiff's registration. Fifth, the gist of the plaintiff's complaint, as far as I can discern it, is that AHPRA (and the Medical Board as well, I assume) should be precluded from further implementing the suspension process which it has initiated (and perhaps that the suspension should be ordered, in some way, to be of no immediate effect). As I have noted above, there is no evident basis in the materials for the making of such orders. However, I should note that the restraints sought by Dr Azad travel well beyond these types of restraints, and include restraints upon AHPRA to the following effect:(a)to prelude it continuing with its 'illegal retaliatory actions' against the plaintiff;(b)to preclude it using 'threatening communication[s] with the plaintiff'; and(c)to preclude it providing a 'vehicle for the plaintiff's legal opponents and assisting them in fabricating continuous groundless allegations'. As will be immediately apparent, these restraints are vague and do not precisely describe the actions or conduct which the plaintiff says AHPRA should be prevented from taking. The vague nature of the claims provides another justification for the court's decision to dismiss the application.