Taylor v The Medical Board of South Australia

[2011] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

TAYLOR v THE MEDICAL BOARD OF SOUTH AUSTRALIA

[2011] SASCFC 8

Reasons for Decision of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Vanstone)

8 March 2011

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - OTHER MATTERS - COSTS

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - GENERALLY

Application for permission to appeal in private - whether grounds of appeal reasonably arguable - whether Judge's decision on costs fairly reflects the course and outcome of the appeal - application for permission to appeal refused.

Medical Practice Act 2004 (SA) repealed s 37, s 65(1); Health Practitioner Regulation National Law (South Australia) Act 2010 (SA); Supreme Court Civil Rules 2006 r 289(2), referred to.

TAYLOR v THE MEDICAL BOARD OF SOUTH AUSTRALIA
[2011] SASCFC 8

Full Court:       Doyle CJ, Gray and Vanstone JJ

1. DOYLE CJ and VANSTONE J:    Dr Taylor has applied to the Full Court for permission to appeal against a decision by a Judge of this Court.  The Judge ordered Dr Taylor to pay part of the costs of an unsuccessful appeal by her to this Court.  The decision on appeal is Taylor v The Medical Board of South Australia [2010] SASC 308 and the decision on costs is Taylor v The Medical Board of South Australia (No 2) [2010] SASC 331.

2. The Judge refused permission to appeal.  Dr Taylor now makes her application for permission to the Full Court pursuant to r 289(2) of the Supreme Court Civil Rules 2006.

3. Dr Taylor appealed to this Court against a decision by the Medical Board of South Australia (the Board). The appeal was brought pursuant to s 65(1) of the now repealed Medical Practice Act 2004 (SA) (the Act).

4. By its decision the Board refused an application by Dr Taylor for reinstatement of her registration on an application made under s 37 of the Act.

5. Dr Taylor claimed on appeal that there were circumstances such that a fair minded and informed member of the public might reasonably apprehend a lack of impartiality on the part of the Board.  The matter relied upon was the earlier involvement in her matter of the Presiding Member of the Committee of the Board that heard Dr Taylor’s application.  There was no suggestion of actual pre‑judgment or bias.

6. Dr Taylor also challenged the decision on the merits, which challenge was coupled with a complaint of a denial of procedural fairness.

7. The Judge upheld the argument by Dr Taylor that there were reasonable grounds for an apprehension of bias on the part of the Presiding Member.  The Judge dealt with that point as a preliminary point, the parties agreeing to that course of action.  But that decision then led to a difficulty.  The Judge said (Taylor v The Medical Board of South Australia):

   [27]My ruling on [the Presiding Member] led to a discussion as to where the matter should go, given the fact that the legislation had changed, the Act had been repealed and a new regime had come into being as a result of the enactment of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA).

   [28]There was considerable argument as to how the matter should proceed.  The choices were: send it back to a newly constituted Board in South Australia, which I was told was not possible under the new regime, or have a new Board in another State hear the matter.  This, I was told, would involve most likely a hearing in Victoria.  The other choice was for me to hear and determine the remaining issues raised in the appeal.

   [29]I decided, after hearing argument, that the fact that there was a finding of apprehended bias did not prevent me from proceeding and hearing the balance of the grounds of appeal.  It was agreed by counsel on both sides that the appeal hearing was by way of re-hearing.

   …

   [31]I take a pragmatic view on this submission.  If I had heard all grounds of appeal together as part of the re-hearing I would have dealt with the Board’s decision as part of that re-hearing.  In the circumstances I would have reached the same conclusion that I could not interfere with the Board’s decision and that in any event I agreed with the decision.  In those circumstances the re-hearing would have been complete and I may have merely stated that it was not necessary to find on bias.  Alternatively, I may have said that there was an apprehended bias but that it did not matter because I had completed the re-hearing and reached a result in any event without taking into account the Board’s decision.

8. The Judge found that the Board had not erred in its decision on the substance or merits of the application by Dr Taylor. 

9. The Judge dismissed the appeal.

10. In Taylor v The Medical Board of South Australia (No 2) the Judge ordered that Ms Taylor pay two-thirds of the Board’s costs of the appeal. As to that the Judge said at [13]:

    [13]In the exercise of an overall discretion, I would allow the respondent two-thirds of this amount to reflect the appellant’s partial success in the two matters I mentioned earlier, namely, the time spent arguing the question of bias and my suggestion of an earlier time to re-apply for reinstatement.  In addition there was a partially successful application for new evidence.  I therefore make an order that the appellant pay the respondent’s costs fixed in the sum of $30,600.

    The Judge’s reference to a suggestion of an earlier time is a reference to him having indicated that in his opinion the Board should consider a renewed application by Dr Taylor within 12 months, rather than having to wait several years as the Board had proposed.

11. Dr Taylor does not appeal against the decision by the Judge to consider the challenge to the merits of the Board’s decision.  The proposed appeal relates only to the question of costs.

12. Dr Taylor complains that the decision on costs fails to reflect the fact that her challenge raising an apprehension of bias was successful, and also fails to reflect the fact that Dr Taylor had “improved her position” in that the Judge had indicated that the Board should consider a new application made after 12 months.

13. It may be arguable that the finding that there were reasonable grounds for an apprehension of bias on the part of the presiding member meant that the appeal should have been allowed and that the matter should have been remitted for re-hearing.  The Judge recognised this, and in the passage set out above referred to the difficulty of following that course.

14. That decision is not challenged.

15. Consistently with this, Dr Taylor cannot now argue, in relation to costs, that the Judge should have approached the question of costs on the basis that he was giving effect to a decision by the Board that had been shown to be a nullity.  The matter of costs is to be approached on the basis that the Judge was entitled to proceed as he did, to consider the merits of the appeal, and then to dispose of the appeal accordingly.

16. The most that can be said in favour of Dr Taylor on this aspect of the matter is that she succeeded on one of the issues raised on appeal. 

17. Nor can Dr Taylor now claim that the Judge should have approached the question of costs on the basis that she “… was entitled to have her initiating application for registration determined, by a competent authority, without being exposed on costs”.  That is a loose and unfounded generalisation.

18. Dr Taylor also wishes to argue that because the Judge considered the appeal as an appeal by way of re-hearing, and exercised a statutory power to substitute a decision that the Court considered appropriate, the Judge constituted himself as the original decision maker, and the Act did not provide for costs on a determination by the Board as the original decision maker.

19. That argument has no merit.  The Judge heard and decided an appeal.  He did not act as the original decision maker.  He decided whether error on the part of the Board had been demonstrated.

20. It follows that the proposed grounds of appeal are not reasonably arguable.

21. As well, the Judge’s decision on costs fairly reflects the course of and outcome of the appeal.  It cannot be said that the Judge’s decision to award costs reduced by one-third was not reasonably open to him.

22. For these reasons we would refuse permission to appeal.

23. GRAY J:               Arlene Maree Taylor has applied to the Full Court for permission to appeal against a decision of a Judge of this Court with respect to costs.[1]

    [1]    Refer Taylor v The Medical Board of South Australia (No 2) [2010] SASC 331. The earlier decision is Taylor v The Medical Board of South Australia [2010] SASC 308.

24. Dr Taylor, a medical practitioner, had applied to the Medical Board of South Australia for reinstatement of her registration as a medical practitioner.  On 14 July 2010 the Reinstatement Committee of the Medical Board refused her application for reinstatement. 

25. Dr Taylor appealed against that decision to a Judge of this Court.  She raised concern as to an apparent bias; the presiding member who heard the application, had a previous involvement with Dr Taylor.  The decision of the Board was also challenged on further grounds.  Complaints of a denial of procedural fairness and on the merits were also advanced. 

26. The Judge dealt with the question of bias as a preliminary issue and found in favour of Dr Taylor.  In the ordinary course, the proceeding would have been remitted to a differently constituted Medical Board for reconsideration.  Dr Taylor could reasonably have expected to be awarded costs of the proceeding before the Judge.

27. In 2010, a national law in regard to the registration of medical practitioners came into operation.  The national law was introduced into South Australia by the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA), an enabling Act which adopted the Health Practitioner Regulation National Law (2009).  This is commonly referred to as the “national law”.  These developments brought about, inter alia, a national system of registration and regulation of medical practitioners in Australia. 

28. In the present proceedings, the introduction of the national law caused a perceived difficulty in remitting the matter to the pre-existing South Australian Medical Board; that is, the Board that existed under the repealed State legislation.  Following argument on the topic, the Judge decided that he was not prevented from proceeding and hearing the balance of the grounds of appeal.  The parties agreed that the appeal hearing was by way of re-hearing. 

29. This procedure had the effect of removing medical peers from the determination.  In the result, the Judge dismissed the appeal, but accorded Dr Taylor substantial relief.  The Judge considered that Dr Taylor should be entitled to apply for renewal of her registration within 12 months rather than waiting a number of years as the Board had decided. 

30. Had the matter been remitted to the Board and had the order ultimately made by the Judge been made by the Board, in all probability no order for costs would have followed.  Notwithstanding the partial success of each party there would have been no order for costs.  The overall result in that circumstance would have been that Dr Taylor would have recovered her costs of her initial appeal before the Judge and would have paid no costs in respect of the remitted hearing.  This is a vastly different outcome than what in fact has been the result. 

31. The Judge made no order in Dr Taylor’s favour for costs.  Instead the Judge ordered that Dr Taylor pay two-thirds of the Board’s costs of the appeal.  The order for costs relates both to the bias application and the re-determination of the merits.  A comparison of the actual result with the “would have been result” is stark and in my view demonstrates an arguable injustice.  Why should Dr Taylor’s position be so dramatically different because of the pragmatic course followed?  A substantial sum of money is involved as the Judge ordered Dr Taylor to pay $30,600.00 to the Board. 

32. I consider that this is a clear case for the grant of permission to appeal.  At the very least the application for permission should be referred into Court for full oral argument.