TERZI and NURSING AND MIDWIFERY BOARD OF AUSTRALIA - [2024] WASAT 69

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION:   TERZI and NURSING AND MIDWIFERY BOARD OF AUSTRALIA [2024] WASAT 69
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   28 MAY 2024
DELIVERED          :   28 MAY 2024
PUBLISHED           :   18 JULY 2024
FILE NO/S:   VR 37 of 2024
BETWEEN:   PETER TERZI
Applicant
AND
NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Respondent

Catchwords:

Vocational regulation - Immediate action - Suspension of registration to practice - Dual registration as both dentist and nurse - Application for review of immediate action - Application for 'summary judgment' - Allegation by applicant that respondent has behaved vexatiously and conducted proceedings to cause unnecessary disadvantage - Tribunal's jurisdiction - Conduct not causing unnecessary disadvantage - Exercise of discretion

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 23, s 25, s 31A, s 35, s 156, s 156(1)(a)(i), s 156(1)(e)
State Administrative Tribunal Act 2004 (WA), s 26, s 31, s 47, s 48, s 73(1), s 87(1)

Result:

Application for orders under ss 47 and 48 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) is dismissed
Applicant is to pay the costs of the respondent for the hearing of the application for orders under ss 47 and 48 SAT Act
Respondent is invited to reconsider its decision under s 31 SAT Act

Category: B

Representation:

Counsel:

Applicant	:	Dr MC Douglas & D Swain
Respondent	:	EM Heenan SC & T De Bes

Solicitors:

Applicant	:	Bennett
Respondent	:	Perth Legal Pty Ltd

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

Chang v Legal Profession Complaints Committee [No 2] (2020) 56 WAR 263
Grassby v R (1989) 168 CLR 1
Legal Profession Complaints Committee and Khosa [2021] WASAT 64
Legal Services and Complaints Committee and McCardle [No. 2] [2023] WASAT 131
Medical Board (WA) v A Medical Practitioner [2011] WASCA 151
Terzi and Dental Board of Australia [2024] WASAT 52

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally on 28 May 2024 and have been edited from the transcript to correct grammatical errors and/or infelicity of expression).

Introduction

This decision concerns an unusual set of facts.
The applicant is registered under the Health Practitioner Regulation National Law (National Law)[1] as both a nurse and a dentist.
[1] As applied by the Health Practitioner Regulation National Law (WA) Act 2010, s 4.
As a result of various matters, both the Dental Board of Australia (Dental Board) and the Nursing and Midwifery Board of Australia (Nursing Board) have made decisions known as immediate action decisions under s 156 of the National Law, the effect of which was, in each case, to suspend the applicant's relevant registration.
The applicant has sought review in each case. The immediate action decision in the Dental Board matter was the subject of a hearing on 25 March 2024 with orders being made on 2 April 2024 which, in effect, lifted the suspension and imposed other conditions.
The applicant's position is, in essence, that that decision should have been the end of both matters.
He seeks orders that amount to summary judgment in his favour such that the decision of the Nursing Board (the respondent in these proceedings) to suspend his nursing registration is set aside in its entirety. He also seeks his costs on an indemnity basis. Curiously he also seeks the dismissal of his own application.
For the reasons that follow, I decline to make the orders sought by the applicant.
Rather, I will make the following orders:
(1)The applicant's application of 3 May 2024 for orders to be made under ss 47 and 48 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) is dismissed.
(2)The applicant be required to pay the costs of the respondent, of today's hearing only, with the costs to be fixed in a sum to be agreed, and, if that is not possible, to be determined by the Tribunal on the papers.
(3)Pursuant to s 31 of the SAT Act, the respondent is invited to reconsider its decision by no later than 30 June 2024.

Factual background

On 8 March 2024, the Dental Board made an immediate action decision under s 156 of the National Law, the effect of which was to suspend the applicant's registration as a dentist.
In its immediate action decision the Dental Board stated, amongst other things, that:
(a)it had received notifications between 19 April 2022 and 3 May 2022 alleging that the applicant 'had perpetrated and/or been charged with domestic violence offending against at least three partners between approximately 2005 and 2023'[2] two of whom worked for the applicant at his private dental clinic.
(b)on 18 December 2023, a further notification was obtained to the effect that the applicant had sexually assaulted his employee while she was heavily intoxicated at his residence.
[2] I note that there may be a typographical error in one of those dates.
On 11 March 2024, the applicant sought review by the Tribunal of that decision.
On 14 March 2024, the respondent in these proceedings (i.e. the Nursing Board) advised the applicant in writing that it proposed to make an immediate action decision.
In that letter, the Nursing Board:
(a)referred to the material on which the Dental Board had made its decision and to which I have referred above;
(b)noted the attitude of the applicant in the Dental Board matter which was, effectively:
(i)to deny the allegations against him;
(ii)to allege that he had been the victim of 'unwanted behaviours' from one of the complainants;
(iii)to acknowledge that it was poor judgment to take his employee back to his residence but that the conduct was consensual and no criminal charges had been laid, and that he believed he had been set up to be blackmailed;
(iv)to submit that there was no complaint regarding his practice.
(c)stated that notwithstanding the suspension of his dental registration, there remained a 'residual risk associated with [the applicant's] alleged conduct in circumstances where he continues to hold current registration as a nurse without adequate risk controls and/or oversight in place …'; and
(d)stated that immediate action was warranted in the public interest as, amongst other things, his conduct, if proven, is 'inconsistent with the qualities and obligations required of a nurse'.
I note here that the distinction drawn by the Nursing Board between the regulation of the applicant's practise as a nurse and that of his practise as a dentist is a matter to which I will return.
On 19 March 2024, the applicant responded to the Nursing Board's letter through his solicitors in which he:
(a)asserted that he poses no risk to the public and that an immediate action decision 'is neither necessary nor proportionate' and neither is it in the public interest;
(b)referred to the Tribunal's review of the Dental Board's immediate action decision and suggested that any further action by the Nursing Board should await the outcome of that review proceeding; and
(c)offered to undertake not to perform any nursing procedures or tasks until the Dental Board proceedings were complete.
I note that that undertaking does not appear to have been since offered.
On 20 March 2024, the Nursing Board made its immediate action decision to suspend the applicant's registration as a nurse.
On 25 March 2024, the Dental Board matter came before the Tribunal for hearing, following which orders were made on 2 April 2024 whereby the applicant's suspension as a dentist was lifted and conditions were imposed. The conditions, in effect, provide for:
(a)notification of certain matters to the applicant's employees, proposed employees, and any principals of each practise at which the applicant works;
(b)a prohibition on employing underage employees, on personal contact outside work with any female employees, and on non‑clinical or personal contact with any patient;
(c)the supervision of the applicant and notification of those supervising practitioners;
(d)a compulsory course of education; and
(e)a requirement that the applicant be evaluated by a psychologist and consult with them.
However, I note that reasons were not given by the Tribunal at that time. The reasons are yet to be published in the Dental Board matter,[3] although I am advised that the parties have been provided with a copy of the unpublished reasons for the purpose of identifying matters suitable for redaction given certain non-publication orders. Given the scope of those non-publication orders, I remain ignorant of the Tribunal's reasons in the Dental Board matter.
[3] The reasons in Terzi and Dental Board of Australia [2024] WASAT 52 were published on 8 June 2024, after the oral delivery of those reasons.
On 8 April 2024, the applicant sought review of the Nursing Board's immediate action decision the subject of these proceedings. In his application for review, the applicant said that there was no basis for any immediate action decision at all.
That was, at least, the position of the applicant when the application for orders under ss 47 and 48 was made on 3 May 2024. It remains the position of the applicant today; Dr Douglas, who appeared for the applicant, confirmed that that was the case at the hearing.
On 23 April 2024, the matter came on for directions at which the respondent sought orders for the matter to be adjourned to await the Tribunal's reasons in the Dental Board matter. However, the matter was listed for mediation on 30 April 2024.
As per that order, the matter went to mediation on that date, which was unsuccessful.
On 2 May 2024, the applicant's solicitors emailed the Nursing Board's solicitors with an open offer that, in effect:
(a)said that the decision which the [Nursing Board] seeks to defend in these proceedings was 'indefensible' in circumstances where the Tribunal's decision in the Dental Board matter amounts to a determination of 'all the substantive issues in this dispute';
(b)proposed consent orders whereby the applicant's suspension is revoked and no further orders are imposed;
(c)said that if the proposed orders are not agreed to, the applicant would seek orders 'akin to summary judgment' together with an order for costs.
On 3 May 2024, the solicitors for the Nursing Board emailed in response to that previous email, in effect:
(a)advising that proceeding to a hearing would not be an efficient use of resources 'until the precedential value' of the Tribunal's reasons in the Dental Board matter is clear;
(b)proposing that its, that is the Nursing Board's, immediate action decision be stayed until the reasons for the decision in the Dental Board matter are provided, and any appeal period expires.
In doing so, the Nursing Board's solicitors stated that the reasons in the Dental Board matter 'will likely be determinative of the current proceedings'.
That is, the Nursing Board proposed a course of action whereby it would seek a stay of its own decision.
By a return email of 3 May 2024, the applicant's solicitors responded in terms which:
(a)described the Nursing Board's immediate action decision as 'vexatious' on grounds that included that it concerned issues that were 'sub judice', by which I understand the email to say that given the Dental Board's decision was the subject of proceedings in the Tribunal at the time of the Nursing Board's immediate action decision, the Nursing Board ought not to have made any immediate action decision at all;
(b)asserted that the fact that the Nursing Board acknowledged that the reasons in the Dental Board matter 'will likely be determinative' demonstrates that the Nursing Board's position is vexatious; and
(c)stated that for those reasons the applicant would press for 'an order tantamount to summary judgment' and costs.
Also on 3 May 2024, the applicant filed a Minute of Proposed Orders seeking three orders, being:
(a)that the proceeding is dismissed;
(b)the Nursing Board's immediate action decision is set aside; and
(c)the Nursing Board pay the applicant's costs on an indemnity basis.
The basis for the first two orders was said to be ss 47(1)(a) and (c) and 47(2) of the SAT Act or, in the alternative, 'the Tribunal's implied powers' under the [SAT] Act'.
On 6 May 2024, the applicant filed submissions in support of its Minute in which it said:
(a)that ss 47(1)(a) and (c) and 48(2)(b)(i) provide the power to dismiss the proceeding and set aside the Nursing Board's decision on a summary basis and in addition the Tribunal has 'implied or incidental jurisdiction to ensure that its proceedings do not occasion an abuse of process';
(b)that the decision in the Dental Board matter amounted to a determination 'that the material on which the [Nursing Board] relies does not justify immediate action by an AHPRA board in the form of suspension' and that the Nursing Board's 'defence … lacks any substance';
(c)that the Nursing Board's position amounts to 're-agitation of issues already determined' which makes it 'vexatious' and an abuse of process;
(d)that by opposing the application, the Nursing Board is 'failing to give effect to the full implications' of the Tribunal's orders in the Dental Board matter.
At a directions hearing on 7 May 2024, the President listed two matters for hearing:
(a)the applicant's application to dismiss the proceedings; and
(b)the Nursing Board's application for a stay of its decision.
The Nursing Board's submissions are to the effect that:
(a)The orders sought by the applicant for the dismissal of the proceedings under s 47 of the SAT Act would leave in place the subject of the application for review, being the immediate action decision of the Nursing Board to suspend the applicant's nursing registration;
(b)There is no basis to find that the Nursing Board is conducting the proceedings in a way so as to cause disadvantage. Specifically:
(i)its failure to meet the deadline for the filing of the submissions in question is regretted but does not warrant the exercise of the Tribunal's powers under s 48 of the SAT Act and there is no other order with which it has failed to comply;
(ii)the Nursing Board's failure to agree to the applicant's position (that its decision should be set aside in its entirety) is not unreasonable given the Tribunal's decision in the Dental Board matter, in which it found that the correct and preferable decision was to take immediate action; and
(iii)given the very early stages of the proceeding, the only relevant conduct engaged in by the Nursing Board is the mediation and its failure to settle at mediation cannot justify the orders sought.
(c)In response to the applicant's submission that the Nursing Board has failed to 'give effect to the full implications of the Tribunal's orders' in the Dental Board matter, the Nursing Board notes that it and the Dental Board are separate legal entities, both of which have their own statutory duties to regulate their respective professions and further, given the lack of reasons thus far in the Dental Board matter, the Nursing Board is 'unaware' as to whether the Tribunal's decision in that matter is 'premised on any peculiarities of the dental profession …'
In its written submissions the Nursing Board also stated that it no longer pressed its application for a stay.
The applicant filed responsive submissions dated 23 May 2024, which, in effect, reiterated submissions previously made in its submissions of 6 May 2024. However, I note the following:
(a)The applicant submitted, in effect, that there was no substantive difference between the Dental Board and the Nursing Board, submitting that they 'are just different appendages of an AHPRA hydra' such that the Nursing Board had already taken action via the Tribunal's decision in the Dental Board matter.
(b)The applicant submits that the dismissal of the proceeding will not result in the Nursing Board's decision being left intact because the applicant seeks, in addition to an order for dismissal, orders for the setting aside of the Nursing Board's decision suspending the applicant's registration as a nurse.
(c)The Nursing Board's 'conduct has been extraordinary, and extraordinarily vexatious' in that:
(i)it was 'misconceived' to make the immediate action decision to suspend registration 'on the basis of facts that were already the subject of the Tribunal's review jurisdiction';
(ii)to maintain that position since 2 April 2024, when the Tribunal made its orders in the Dental Board matter, has been 'irrational and vexatious' and that since that date the respondent should have taken immediate steps to end the applicant's suspension of his nursing registration;
(iii)the Nursing Board's failure to take such steps 'invited … that the applicant commence' this application;
(iv)the Nursing Board's vexatious conduct predated the mediation; and
(v)there is no basis for a distinction to be drawn between the two professions in circumstances where the Dental Board matter was determined on the basis of allegations of domestic violence rather than any distinction or peculiarities of the particular regulatory regime.
Due to the Nursing Board's withdrawal of its application for stay, the applicant's application for, in effect, summary judgment is the only application before me. To repeat, the applicant seeks orders that:
(a)the proceeding is dismissed;
(b)the Nursing Board's immediate action decision is set aside; and
(c)costs.

The relevant statutory powers

The applicant relies on ss 47 and 48 of the SAT Act. He also, as I have indicated, relies upon what he describes as the Tribunal's 'implied or incidental jurisdiction'.
Section 47 of the SAT Act provides as follows:
(1)This section applies if the Tribunal believes that a proceeding —
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal's powers to act under ss (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under ss (2) on the application of a party or on its own initiative.
Section 48 of the SAT Act provides as follows:
(1)This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as —
(a)failing to comply with an order or direction of the Tribunal without reasonable excuse; or
(b)failing to comply with this Act or the enabling Act; or
(c)asking for an adjournment the need for which is attributable to a failure described in paragraph (a) or (b); or
(d)attempting to deceive another party or the Tribunal; or
(e)vexatiously conducting the proceeding; or
(f)failing to attend any hearing in the proceeding.
(2)If this section applies, the Tribunal may —
(a)if the party causing the disadvantage is the applicant, order that the proceeding be dismissed or struck out;
(b)if the party causing the disadvantage is not the applicant —
(i)determine the proceeding in favour of the applicant and make any appropriate orders; or
(ii)order that the party causing the disadvantage be struck out of the proceeding.
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.

The Tribunal has no inherent jurisdiction

It is first necessary to address the suggestion that the Tribunal has an incidental or inherent jurisdiction.
In the applicant's Minute of Proposed Orders of 3 May 2024, the applicant relies on s 47 of the SAT Act and, in the alternative, on the Tribunal's 'implied powers'.
At paragraph 7 of the applicant's submissions filed on 6 May 2024, the applicant submits that the Tribunal has the same powers as contained in s 47 of the Act 'as an incident of its implied or incidental jurisdiction to ensure that its proceedings do not occasion an abuse of process'.
Those submissions referred to two decisions in support of that proposition. In my view, neither of them provides such support.
The Court of Appeal has, on several occasions, confirmed that the Tribunal is a creature of statute and has no jurisdiction beyond that contained in the SAT Act and the relevant enabling Act.
In Medical Board (WA) v A Medical Practitioner [2011] WASCA 151 (Medical Board), [41], the Court, comprised of Martin CJ, Newnes and Murphy JJA, was concerned with non-publication orders. The Court said as follows:
In the reasons given for arriving at those conclusions on 20 July 2009, Chaney J charted the history of the proceedings, and the changes in circumstances that had occurred since the non-publication orders were affirmed by Barker J in September 2008. He then referred to the earlier decision of the Tribunal in James and Sayers (Trustee for Sayers Family Trust) [2006] WASAT 332 and adopted the reasons given by the Tribunal in that case at [54] – [60] (ts 7). Those paragraphs refer to a number of cases dealing with the common law principles of open justice as applied by the courts. In James and Sayers, it was assumed, without analysis or consideration, that those principles applied to the Tribunal. However, as the Tribunal is a creature of statute, and has jurisdiction and procedures which differ markedly from the jurisdiction and procedures of a court, that is not an assumption which can safely be made – rather, it is a conclusion which could only be arrived at after a process of statutory construction.
That passage was relied upon by Mitchell JA in Chang v Legal Profession Complaints Committee[No 2] (2020) 56 WAR 263, 356 at [380] which concerned the power of the Tribunal to set aside orders previously made. His Honour said: 'Because the Tribunal is a creature of statute, any power of the Tribunal to set aside or vary the valid Conduct Decision Orders must be found within the SAT Act and/or the LP Act'.
Chang is one of the two decisions relied upon by the applicant in support of the proposition that the Tribunal has an implied or incidental jurisdiction. No pinpoint reference was given. That is, no particular part of the reasons was relied upon by the applicant. Rather, the decision as a whole (388 paragraphs in the reported version) was referred to 'generally'.
The applicant also relied upon Legal Services and Complaints Committee and McCardle [No. 2] [2023] WASAT 131, at [38]. Neither that paragraph, nor any other passage that I was able to identify in that decision, supports the proposition relied upon or made by the applicant.
In oral submissions, Dr Douglas referred to the reasons of Dawson J in Grassby v R (1989) 168 CLR 1 (Grassby) page 16 for the proposition that 'a grant of power carries with it everything necessary for its exercise'.
Dr Douglas said that that decision had been relied upon by the Federal Court in decisions which concern tribunals.
That may be so but, particularly in light of the decision of the Court of Appeal in Medical Board, the relevant statutory regime remains of paramount importance in such matters.
In this case, as Mr Heenan SC noted, s 73(1) of the SAT Act provides that a power of the Tribunal to make an order includes the power to make that order subject to conditions and the power to 'make any ancillary order or direction the Tribunal considers appropriate'. Prima facie, that sub-section appears to me to cover the ground intended by the statement of his Honour Dawson J in Grassby.
Given the Court of Appeal decisions I have referred to above, which address the terms of the SAT Act itself, I am satisfied that the only powers I have in this case are those contained in the SAT Act.
While I accept that it is possible for implications to be found as a necessary function of the terms of the SAT Act, I am not satisfied on the material before me that I should imply the term(s) proposed by the applicant.
As to any suggestion of inherent jurisdiction, in my view the Court of Appeal decisions make it quite clear that there is no such thing.
But in any event, given my findings below, that is my findings as to the conduct of the Nursing Board, my findings in this regard are not determinative.

Section 47(2) does not give the Tribunal power to summarily set aside the Nursing Board's decision

In my view, s 47 of the SAT Act does not give the Tribunal power to summarily set aside the Nursing Board's immediate action decision.
As noted above, the applicant seeks orders under both ss 47 and 48 of the SAT Act to both dismiss the proceedings and to set aside the Nursing Board's immediate action decision.
As noted above, the Nursing Board asserted that the dismissal of the proceedings would leave in place the Nursing Board's immediate action decision such that the applicant would remain suspended.
In response, the applicant confirmed that he sought dismissal of 'the proceeding' (which might equivocally be identified as the application) but said that such orders would not result in affirmation of the Nursing Board's decision 'if accompanied by the appropriate order that the [Nursing Board's immediate action] decision to suspend the Applicant's nursing registration is set aside'.
The applicant appears to submit that a power to do so is to be found in s 47(2).
I agree with the Nursing Board that the only power contained in s 47(2) is the power to dismiss the proceeding; that is, the application for review brought by the applicant.
The power in that section is, in my view, very clear. If the Tribunal believes that one of the relevant criteria is satisfied, it 'may order that the proceeding[4] be dismissed or struck out'.
[4] Emphasis added.
The reference to 'the proceeding' in that subsection is, in my view, and I find, the application for review. It can be nothing else.
So much follows from s 42 of the SAT Act. Section 42(3) provides that a 'proceeding before the Tribunal commences when the application is accepted by the executive officer'. The application therein referred to is the application described in s 42(1) which, amongst other things, speaks of a 'person applying to the Tribunal for review'. That is what the applicant did in this case, pursuant to the power under s 199 of the National Law.
To the extent that Dr Douglas made oral submissions to the effect that the proceeding is a 'matter' constituting the 'thing' in dispute, and therefore including the respondent's position, I disagree. The application constitutes a de novo review of an administrative decision where the respondent is a decision maker whose statutory role on review is to assist the Tribunal reach the correct and preferable decision. Dr Douglas' submissions in this regard appear to have their basis in inter partes civil litigation and are, in my view, apt to mislead in this jurisdiction.
The applicant also appears to rely on the power in s 47(2) to 'make any appropriate orders'. In my view, there is nothing in those words which extend to making an order to summarily set aside the Nursing Board's immediate action decision.
Those words are, plainly in my view, provided to allow for the making of orders that are incidental to the primary order of dismissal or striking out the proceeding.
In circumstances where the dismissal sought is of an application for review of a decision, it would be an absurdity if, incidental to such a dismissal, the decision the subject of the review was set aside.
The setting aside of the decision under review is the purpose of the application for review. An order dismissing the application for review could not, in my view, give rise to an incidental power to set aside the decision the subject of review.

Proceedings being conducted to cause disadvantage

Section 48 of the SAT Act is concerned with the consequences of a party conducting proceedings to cause unnecessary disadvantage.
On its face, s 48(2)(b)(i) of the SAT Act gives me the power to set aside the Nursing Board's decision of suspension, being the decision under review, if I am satisfied of certain things, being that the Nursing Board has been conducting the proceedings in order to cause the applicant unnecessary disadvantage.
If I find that that is occurring I have the power to 'determine the proceeding in favour of the applicant and make any appropriate orders'.
The question then is whether the Nursing Board is 'conducting the proceeding in a way that unnecessarily disadvantages [the applicant]'.
Section 48(1) sets out certain types of conduct by way of example, but given they are examples, that list is not exhaustive.
The applicant alleges that the Nursing Board's conduct falls within s 48(1)(a), s 48(1)(c) and s 48(1)(e) of the SAT Act.
The applicant's written submissions include paragraphs 16 to 21 by way of support for those propositions:
16.Taking immediate action to suspend registration on the basis of facts that were already the subject of the Tribunal's review jurisdiction was (at best) misconceived.
17.Maintenance of that position since 2 April 2024, when the Tribunal held that those facts did not justify suspension of registration, has been irrational and vexatious.
18.The Respondent should have immediately taken steps to end the Applicant's nursing suspension on that date to comply with the substance of the Tribunal's decision in the Dental proceedings.
19.The Respondent's failure to take those steps is what 'invited', or demanded, that the Applicant commence these proceedings.
20.Contrary to the Respondent's contention, it was not merely failure to settle at mediation on 30 April 2024 that was vexatious. By that point, the Respondent had already conducted itself vexatiously for 28 days.
21.The Respondent's appeal to peculiarities of the dental profession is divorced from the practical context of the issues that were before the Tribunal in the parallel proceedings. The focus of the proceedings had little to do with dentistry and more to do with (1) alleged domestic violence, and (2) alleged poor billing practices, in the context of (3) the Applicant's operation of his dental business.
Paragraphs 16 – 19, however, concern behaviour that preceded the application for review. So much is obvious from the terms of paragraph 19 itself, which states that the Nursing Board's behaviour of which the applicant complains led to the commencement of the proceedings.
The difficulty for the applicant in this regard is that, on its terms, the section is concerned with the conduct of the proceedings, not conduct that predates the proceedings. Section 48(1) provides that s 48 applies if 'the Tribunal believes that a party to a proceeding is conducting the proceedings in a way that unnecessarily disadvantages another …'[5] When I put that proposition to Dr Douglas during the hearing he agreed.
[5] Emphasis added.
The question is, therefore, whether the Nursing Board has conducted the proceedings (that is, since the application was filed) in a manner as to cause unnecessary disadvantage to the applicant.
Before turning to that question, it is useful to note the decision of her Honour the President in Legal Profession Complaints Committee and Khosa [2021] WASAT 64 (Khosa), [12] – [21] which appears to be the only relevant decision of the Tribunal addressing s 48 of the SAT Act. I adopt those paragraphs in their entirety without repeating them, but I note the following matters in particular:
First, her Honour found that the provisions of s 48 require that any disadvantage caused must be unnecessary, which reflects the fact that the nature of litigation is such that the conduct of proceedings often and necessarily results in some disadvantage to a party.
Secondly, the disadvantage must arise from the way in which one party is conducting those proceedings and there must, therefore, be a causal nexus between the party's conduct of the proceedings and the unnecessary disadvantage to the other party.
Thirdly, the power to act under s 48(1) constitutes a discretion and all the circumstances of the case will be relevant to the Tribunal's exercise of that discretion.
Fourthly, the Tribunal's powers under s 48(2) of the SAT Act are limited but very serious in nature. They involve determining the proceedings in favour of the applicant or striking out a respondent if that respondent engaged in conduct causing disadvantage to an applicant. In any of those situations, the Tribunal's order would be fatal to the case advanced, either by the party whose case is dismissed, or the party who has been struck out.
In the latter respect, the power of the Tribunal to strike out under s 48 of the SAT Act is similar to the Tribunal's power under s 47 of the SAT Act. Both permit the Tribunal to dismiss a proceeding other than on the merits of the case. The principles in relation to s 47 are therefore relevant. Her Honour said that in her view, the approach taken by the Tribunal in dealing with an application under s 48 should be similar to its approach to an application under s 47 in two respects. First, the Tribunal should bear in mind that to determine a proceeding other than on the merits of the applicant's or respondent's case is an exceptional step to take. Further, the party applying for relief under s 48 of the SAT Act bears a heavy burden in persuading the Tribunal to exercise its discretion.
Fifthly, her Honour noted the jurisprudence from Victoria as to s 78 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which is in relevantly identical terms. Her Honour noted that the jurisprudence includes:
(a)firstly, that the relevant section requires the VCAT to focus on the way in which the proceeding is being conducted, not on the merits of the proceeding;
(b)secondly, as to the exercise of discretion –
(i)it 'should only be exercised when there is no other way to achieve a just outcome'; and
(ii)the remedy provided by the section should be 'of last resort and not first resort'.
Her Honour in Khosa specifically repeated two matters from the Victorian jurisprudence, including that the exercise of the discretion should only be exercised when there is no other way to achieve a just outcome.
On its written material, the applicant's position as to what it seeks by way of ultimate disposition is not entirely clear.
At paragraph 18 of his responsive submissions of 23 May 2024, the applicant identifies his complaint as, in effect, that the Nursing Board's failure to take steps to end the applicant's suspension position is unreasonable in light of the Dental Board decision.
On that basis, it might be assumed that the applicant's preferred remedy is the setting aside of the decision to suspend him and to replace it with orders comparable to those in the Dental Board decision.
But the applicant's Minute seeks orders setting aside the decision under review in its entirety and at the hearing Dr Douglas confirmed that it was the latter position sought by the applicant.
In my view, there is no basis for that latter position.
The Tribunal's orders in the Dental Board matter provide for the imposition of conditions on the applicant's registration. A necessary precondition to the imposition of those orders is that there is a proper basis for an immediate action decision – either that there is a risk to public health and safety or that the orders are in the public interest or both.
As I understand the applicant's position, it is to the effect that the Dental Board and the Nursing Board are, in effect, different arms of AHPRA and that, therefore, the Dental Board orders bind the Nursing Board.
That, in my view, misunderstands the relationship between those two bodies.
As Mr Heenan SC submitted, the National Law provides, in Pt 4, for the establishment of AHPRA and in Pt 5 for that of the National Boards.
So, s 31A of the National Law provides that a National Board is a body corporate and s 35 provides that a National Board has, in effect, the function of regulating the relevant profession for which it is the National Board.
Section 23 of the National Law provides that AHPRA is a separate body corporate; that is, it is its own body corporate. Section 25 provides for its functions which are, in effect, to provide administrative assistance and support to the National Boards.
In those circumstances, I do not accept that the Tribunal's decision in the Dental Board matter binds the Nursing Board such that it was required to comply with those orders.
Having said that, in my view it was plainly incumbent on the Nursing Board to carefully examine the orders made on 8 April 2024 in the Dental Board matter and take such action as it considered appropriate. That follows from the introductory material that I referred to being the basis on which the Nursing Board's immediate action decision was taken, which material included the material considered by the Dental Board.
In my view, the obligations on the Nursing Board included an obligation to very carefully consider whether it is appropriate for the applicant's suspension to continue.
This is, in my view, the strongest part of the applicant's case – that the Nursing Board, according to the applicant's case, failed to act so as to end the suspension of the applicant's nursing registration after 8 April 2024 when the orders were made in the Dental Board matter.
In that regard, I reject the applicant's submission that the Nursing Board's immediate action decision itself (i.e. that of 20 March 2024) was vexatious.
At paragraphs 17 – 18 of the applicant's 6 May 2024 submissions, and on more than a couple of occasions in the hearing, Dr Douglas submitted that that decision (the immediate action decision itself) invited these proceedings because, in effect, the applicant was bound to seek its review because the immediate action decision was inappropriate in the light of the Tribunal's decision in the Dental Board matter.
But the Tribunal's decision in the Dental Board matter was not made until 8 April 2024, more than two weeks after the Nursing Board's immediate action decision. At the time of the Nursing Board's immediate action decision, the Dental Board's immediate action decision was the subject of an application for review only.
The applicant describes the Dental Board's decision as sub judice. Given the separate legal entities of the two Boards, I do not accept that submission.
Further, given their role as regulators of separate and distinct professions, I do not accept that the Nursing Board's immediate action decision was unreasonable despite the fact that the Dental Board's decision was the subject of review in this Tribunal.
In that regard, the applicant was critical of the Nursing Board's reliance on the possibility that there may be particulars of nursing practice that are sufficiently different to that of dentistry that might warrant a different approach.
I am unable to agree with the applicant at least at this stage of the proceeding. That is, in the absence of the Tribunal's reasons for its orders in the Dental Board matter and the almost complete lack of material before me as to the nature of the applicant's practice in each respective sphere, I cannot agree that the Nursing Board's decision to suspend his nursing registration was unreasonable.
Put another way, I am prepared to accept at this stage that it was proper for the Nursing Board to wait to consider the Tribunal's reasons in the Dental Board matter before deciding on its further action in order to understand whether there are material differences in the risks posed by the applicant as a nurse compared to the risks assessed by the Tribunal of the applicant's practise as a dentist.

That fact also informs my view as to whether or not it was reasonable for the Nursing Board to fail to act following the Tribunal's orders on 8 April 2024 to end the applicant's suspension of his nursing registration.
That is, in the absence of evidence demonstrating that the factors relevant to the Nursing Board's decision are identical to those relevant to the Tribunal's decision in the Dental Board matter, I am prepared to accept that the Nursing Board may wish to understand the Tribunal's reasons in the Dental Board matter before revisiting its immediate action decision to suspend the applicant's nursing registration.
The applicant's essential complaint is that the Nursing Board has not 'settled' the proceedings since 8 April 2024 when the Tribunal made its orders in the Dental Board matter. The applicant describes that failure as vexatious.
It is here that the applicant's position, as at both 3 May 2024 and today, that the only acceptable resolution of the proceedings is the setting aside of the Nursing Board's immediate action decision in its entirety is relevant.
That is because, self-evidently, it takes agreement from both parties in order to settle proceedings.
In my view, the applicant's position that the only settlement acceptable to it is that there is no order made in relation to his registration as a nurse is unreasonable in circumstances where the Tribunal found that the correct and preferable decision in the Dental Board matter is the imposition of conditions.
As I have already noted, inherent in those orders is a finding that the applicant poses a serious risk to persons (s 156(1)(a)(i)) and/or that immediate action is in the public interest (s 156(1)(e)).
In those circumstances, I am satisfied that for the applicant to insist that the Nursing Board should accept the position whereby there is no immediate action decision in place at all is unreasonable.
Also unreasonable is the applicant's current application in circumstances where at no time has it sought the stay of the operation of the decision under review under s 25 of the SAT Act.
That is not to say that a stay would have been granted had an application been made. Such an application would need to have been determined on the facts and circumstances as put to the Tribunal, including any material as to the relevant differences between the risks arising from the applicant's practice as a nurse compared to that of a dentist.
But to fail to apply at all, and then to seek 'summary judgment' is, in my view, unreasonable.
Another alternative approach would have been to seek orders from the Tribunal under s 31 of the SAT Act for the Nursing Board to reconsider its immediate action decision.
Such a course could also have been taken by the Nursing Board.
As I understand its case, the Nursing Board did not do so because it wanted to review the Tribunal's reasons in the Dental Board matter.
Again, in the absence of evidence demonstrating that the factors relevant to the Nursing Board's decision are identical to those relevant to the Tribunal's decision in the Dental Board matter, I am prepared to accept that the Nursing Board's course was appropriate.
I note that the Nursing Board offered to seek a stay of its decision in both its email of 3 May 2024 and its Minute of the same date. Today's hearing was listed to address that application as well as the applicant's summary judgment application.
For a decision maker to seek a stay of its own decision is, at the least, unusual. As was noted in the hearing, s 26 of the SAT Act precludes the decision maker from remaking its decision while an application for its review is on foot. Rather, the appropriate course taken is to seek the Tribunal's invitation to reconsider the decision pursuant to s 31 of the SAT Act.
While unusual, and perhaps misguided, the Nursing Board's offer and indeed application to stay its own decision does demonstrate that the Nursing Board was willing to consider alternative courses such that the applicant would be relieved of the burden of his suspension at least while the Nursing Board resolved its position following its consideration of the Tribunal's reasons in the Dental Board matter.
For all these reasons, I find that the Nursing Board has not acted unreasonably and that it has not conducted the proceedings so as to unnecessarily cause disadvantage to the applicant.

Discretion

In any event, the existence of those two alternative courses of action (i.e. a stay and s 31 reconsideration) also provide, in my view, compelling reasons why, even if I had found that the Nursing Board had conducted the proceedings in a manner so as to unnecessarily disadvantage the applicant, I would not have exercised my discretion to determine the proceedings in favour of the applicant.
That is because, as noted above, a remedy under s 48 of the SAT Act is one of last resort. There are other methods by which the applicant can seek, and should have sought, the interim cessation of his suspension until his application for review can be substantively determined. Accordingly, I would not exercise the powers under s 48(2)(b)(i) of the SAT Act in any event.

Orders

Accordingly, the applicant's application for orders under ss 47 and 48 of the SAT Act should be dismissed.
Given my views on the adequacy and appropriateness of reconsideration, particularly now the parties have a copy of the Tribunal's reasons in the Dental Board matter, I will also accede to the request made by Mr Heenan SC on behalf of the Nursing Board at the beginning of the hearing for orders in that regard.

Costs

Given my decision, the applicant's claim for costs must fail.
Mr Heenan SC sought an order as to the Nursing Board's costs on the basis that the present application was so fundamentally misconceived that no reasonable party could have brought it.
By s 87(1) of the SAT Act, the starting point is that each party is to bear its own costs.
In my view, costs on an interlocutory application will, in the ordinary course at least, only be ordered where a party has acted unreasonably.
An application that is fundamentally misconceived might constitute unreasonable behaviour, although there may be other explanations for it.
In this case, the applicant is understandably frustrated that his suspension as a nurse continues when a very similar application regarding his dentistry registration resulted in the lifting of his suspension in that regard.
He was entitled, given the Tribunal's orders in the Dental Board matter, to insist that the Nursing Board give its prompt and careful attention to its immediate action decision and consider whether it remains appropriate.
In the meantime he could, and perhaps should, have sought a stay. Indeed, I have found that it was unreasonable for him to bring this application not having sought a stay.
He could also have suggested that the Nursing Board agree to orders under s 31 of the SAT Act for it to reconsider its decision.
He should also have accepted that, given the Tribunal's orders in the Dental Board matter, at least until the Tribunal's reasons were delivered, he could not reasonably have insisted that the Nursing Board's immediate action decision be set aside in its entirety so that there is no restriction at all on his practice as a nurse.
On the other hand, today's hearing was listed to address applications by both parties.
I have described the Nursing Board's application to stay its own decision as at least unusual. It only withdrew its application by its written submissions on 20 May 2024.
As such, I will only order the applicant to pay the Nursing Board's costs of today's hearing, with the costs to be fixed in a sum to be agreed and, if that is not possible, to be determined by the Tribunal on the papers.
The Tribunal orders:
1.Applicant's application of 3 May 2024 for orders to be made under ss 47 and 48 of the State Administrative Tribunal Act 2004 (WA) is dismissed.
2.Applicant is required to pay the costs of the respondent, for the hearing on 28 May 2024 only, with the sum to be agreed between the parties and, if that is not possible, for it to be determined by the Tribunal on papers.
3.Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision by no later than 30 June 2024.