MEDICAL BOARD OF AUSTRALIA -v- NUGAWELA [2026] WASC 64 (13 March 2026)

1. The First Application was an application to the SAT commenced on 29 May 2020. The named respondent was AHPRA.
2. The background to the First Application is that on 2 September 2019, Dr Nugawela made an application to the Board via AHPRA to renew his general and specialist registration (as a general practitioner) as a medical practitioner under the National Law. On 21 January 2020, AHPRA sent a written notification to Dr Nugawela pursuant to National Law s 80(1)(b) advising that his application for renewal of his registration as a medical practitioner was incomplete.[6]
3. On 21 April 2020, Dr Nugawela sent an email to Michele Kingi, Senior Regulatory Officer Registration employed by AHPRA, regarding a telephone conversation between the two of them on 20 April 2020. Later that day, Ms Kingi sent an email to Dr Nugawela in reply, confirming her verbal advice to Dr Nugawela that his registration renewal application had been taken to have been withdrawn, and the reason why this had occurred. Later that day, Dr Nugawela sent a further email to Ms Kingi, confirming he understood he could not practice while he was unregistered.[7]
4. On 1 May 2020, Ms Kingi sent an email to Dr Nugawela advising him that as his registration renewal application was taken to have been withdrawn. Dr Nugawela would need to reapply for registration as a medical practitioner.[8]
5. Later that day, Dr Nugawela lodged a further application with AHPRA for renewal of his registration as a medical practitioner.[9]
6. On 6 May 2020, AHPRA sent an email to Dr Nugawela advising he was required to complete an application for new registration, rather than an application for renewal of an existing registration. On 7 May 2020, Dr Nugawela sent an email to Ms Kingi disputing that he was required to complete an application for new registration.[10]
7. On 29 May 2020, Dr Nugawela commenced proceedings in the SAT seeking (amongst other things) a review of AHPRA's decision not to renew his registration as a medical practitioner because his registration renewal application had been taken to have been withdrawn. This became proceedings number VR 50 of 2020 (First Application). The relief sought by Dr Nugawela included immediate activation of his registration as a medical practitioner, and that his application to AHPRA be processed as a renewal and not an application for a new registration.[11] The grounds of the First Application were: [12]

Application deemed withdrawn without exercise of due diligence by AHPRA in April 2020. Deeming provisions arbitrary (commencement, duration, reversal, definition, discretion, exercise) Serious Economic Loss; Irreversible damage to medical practice and standing of medical practitioner Denial of natural justice in non-appealable decision not to renew and to apply as new registrant Information sought recorded with and available to AHPRA for several years. Abuse of process by AHPRA in (a) failing to allow renewal (b) delay in implementing lapse causing loss of ability to deal with application as a renewal rather than new application de novo (c) failure to consider impact on retrospective lapsing of medical registration on practitioner, patients and damage to medical practice No provision in Act to lapse of licence and registration retrospectively No provision in Act to register unrestricted for 6 months, then withdraw registration Refund of registration fees unsolicited Patient and other provider claims made during period of registration (lapsed retrospective to Sept. 2019) declared null and void, causing hardship and loss to patients, practitioner and loss to 3rd party service providers. Retrospective lapse and delay to implement (January to April) caused practitioner to sustain losses of supplies ordered and not useable due to loss of license, legal obligations entered into as medical practitioner in the belief that full medical registration was accepted by AHPRA. Unconscionable conduct by AHPRA in their excessive and reckless use of statutory power. Unreasonable delay in attending to and limiting damage caused by unappealable decision not to renew license. Change of registration status applied by AHPRA (Sept'19 - Mar'20) after accepting renewal has legal implications for services rendered during the registration period, later withdrawn by AHPRA. Failure by AHPRA to consider hardship on practitioner - who has solo medical practice in limbo, unable to earn an income in the interim when matter is being adjudicated (e.g. locum, emergency, areas of need). Inability to be listed in the Pandemic register. Disproportionate sentence on practitioner for any error in form-filling of Renewal of Registration. Practitioner performing essential service in community. Breaches by AHPRA of Regulatory Principles for the National Scheme. Reckless action by AHPRA in the administration of the National Scheme resulting in damage to the public, other health service providers and the practitioner. Unnecessarily punitive action taken against practitioner without decision by a properly constituted Board, Panel or Tribunal. Authorisation by middle management to take severe action such as deemed withdrawal of licence without specific evidence of such - causing loss of licence to practice, economic hardship to practitioner and family, damage to medical practice during pandemic already affecting nation. Damage to public in removing a currently practising medical practitioner from active near full-time community medical practice when AHPRA has organised Pandemic Register to bring health practitioners with lapsed registrations (up to 3 years). Delay by AHPRA to redress registration renewal 'deficit/s' Excessive use of powers available to AHPRA as a registration body.

1. On 4 June 2020, Dr Nugawela filed an interim application seeking substantially similar relief.[13]
2. On 16 June 2020, the Board renewed Dr Nugawela's registration as a medical practitioner. [14]
3. Also on 16 June 2020, the Board filed an application for disciplinary action against Dr Nugawela in the SAT pursuant to National Law s 193(1)(a)(i), which became proceedings number VR 3 of 2020 (2020 Disciplinary Application).[15] In summary terms, the Board identified five areas of concern, being that Dr Nugawela:[16]

(a) failed to ensure that medical records were held securely and not subject to unauthorised access;

(b) failed to facilitate the appropriate transfer or management of patient records on closing or relocating a practice;

(c) failed to appropriately store medication;

(d) failed to provide information to the Board; and

(e) failed to notify AHPRA of a change of his principal place of practice and/or address the Board should use to send correspondence.

1. On 30 June 2020, Dr Nugawela was given leave to withdraw the First Application and it was withdrawn.[17]

1. The Second Application was an application to the SAT commenced on 20 September 2021. This is some 15 months after the First Application was withdrawn. The named respondent was State Board.
2. In the Second Application, Dr Nugawela sought an order reinstating the First Application and to the stay the 2020 Disciplinary Action.[18] The grounds relied on were:[19]

Jurisdictional Error

Denial of procedural fairness

Breach of model litigant obligations

Errors of Law

In the interest of justice

My medical registration, renewed unconditionally annually since 1975, was renewed in September 2019 (unconditionally) despite 2 complaints AHPRA received in 2018. AHPRA renewed my registration whilst investigating the complaints.

In March 2020, AHPRA caused my registration to be cancelled by deeming my renewal application a primary application for registration which was withdrawn. Absent were the pre-requisite requirements under National Law (notice, show-cause, hearing, appeal, review period). I discovered my cancellation when Medicare payments ceased payments, telling patients I was no longer registered. I could not work unregistered.

I commenced action against AHPRA in May 2020 at SAT (VR50/2020). SAT restored registration unconditionally after 3 months and I was required to withdraw my action. The matter did not go to trial, so enabling AHPRA/Medical Board to bring the current action

VR53/2020 the following month, based on the same facts seeking a conduct finding, fine, legal costs and registration encumbrances, thus avoiding issue estoppel and res judicata. (Grounds listed in annexure)

This matter was raised in case management of VR53/2020 and Justice Pritchard advised a formal application was required to reopen VR50/2020.

1. On 12 October 2021, the President of the SAT dismissed the Second Application.[20] The order of SAT was:[21]

Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the proceedings in VR 71/2021 are dismissed on the basis that they are misconceived, alternatively, to the extent that s 49 of the SAT Act applies, leave to commence the proceedings is refused.

1. For context, State Administrative Tribunal Act 2004 (WA) (SAT Act) s 47 provides:

(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 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.

1. The decision of the President is reported as Nugawela and Medical Board of Australia [2021] WASAT 147, which I will refer to as the Second Application Decision. In relation to the final orders made on the First Application, the President observed:[22]

That brought an end to the proceeding in VR 50 of 2020. That outcome reflected the fact that Dr Nugawela had had success, in the sense that the relief that he sought, namely his reregistration, was achieved and that he was registered as a medical practitioner from September 2020.

1. As to the Second Application, the President said: [23]

In this case, the proceeding in VR 50 of 2020 was withdrawn. The only decision that Dr Nugawela seeks to have reviewed by virtue of the application in VR 71 of 2021 is the deregistration decision. As I have said, that decision has been overtaken by events, namely, that Dr Nugawela's registration was, in fact, reinstated and he presently remains a registered medical practitioner. It is far from apparent that the Tribunal could take any action or make any order which would achieve an outcome different from that which Dr Nugawela has already achieved himself, namely, that the deregistration decision was set aside and a new decision made, to register Dr Nugawela as a medical practitioner. There would, therefore, be no utility in the 'reinstatement' (to use Dr Nugawela's description in VR 71 of 2021) of the proceeding in VR 50 of 2020.

That is not the end of the matter. The purpose behind the application in VR 71 of 2021 appears, on the face of the application and having regard to what Dr Nugawela has said today, to be something different from securing Dr Nugawela's registration. In effect, Dr Nugawela is concerned that at least one of the issues that underlay the deregistration decision is now being litigated by the Board as part of disciplinary proceedings in another matter in the Tribunal, in VR 53 of 2020.

This application (in VR 71 of 2021) appears really to be motivated by a desire on Dr Nugawela's part to achieve an order which he has described as a stay of VR 53 of 2020, pending the determination of issues 4 and 6 in the context of proceedings akin to those in VR 50 of 2020. I do not see any basis to 'reinstate' the proceeding in VR 50 of 2020. Nor do I see any utility in doing so, in order to postpone the disciplinary proceedings in VR 53 of 2020, which have been on foot since June 2020.

Drawing all those threads together, the conclusion I have reached is that if this is a case in which the leave of the Tribunal is required under s 49 for Dr Nugawela to proceed with VR 71 of 2021, then leave should be refused. I do not see how the Tribunal would have any jurisdiction to grant the relief sought by Dr Nugawela, which would effectively be no different from the relief that he effectively achieved in VR 50 of 2020. There is certainly no utility, on the basis of the information presently available to me, in the Tribunal permitting a proceeding of that kind to proceed.

If the present proceeding, in VR 71 of 2021, is simply regarded as the commencement of a new proceeding, so that leave is not required, then I am not persuaded that the proceeding should be permitted to continue. The proceeding, in my view, is misconceived and should be dismissed under s 47 of the SAT Act.

Third Application - Court of Appeal CACV 102 of 2021

1. The Third Application was an appeal to the Court of Appeal in respect of the Second Application. It was commenced on 21 October 2021. The named respondents were AHPRA and the State Board.[24]
2. On 26 October 2021, Dr Nugawela filed an interlocutory application in the Third Application seeking orders that:[25]

(a) the decision in the Second Application be stayed pending determination of the Third Application;

(b) the Second Application be reopened to allow determination of unresolved issues in the First Application; and

(c) the hearing of the proceedings in the 2020 Disciplinary Application (VR 53 of 2020) be vacated and rescheduled, pending determination of the appeal (that is, the Third Application).

I add that the hearing in VR 53 of 2020 was scheduled for the following day, 27 October 2021.

1. On 27 October 2021, the Court of Appeal dismissed Dr Nugawela's interlocutory application for a stay of the 2020 Disciplinary Application (as sought in the application set out in paragraph [29] above). An order was made that Dr Nugawela pay the Board and AHPRA's costs of the application, to be assessed if not agreed. [26]
2. On 20 January 2022, the Court of Appeal made orders extending the time for Dr Nugawela to file and serve an appellant's case to 4 March 2022. [27]
3. Dr Nugawela did not file and serve an appellant's case by 4 March 2022.[28]
4. On 12 April 2022, the Court of Appeal made orders extending the time for Dr Nugawela to file and serve an appellant's case to 30 June 2022.[29]
5. On 30 June 2022, Dr Nugawela attempted to file a document with the Court. On 5 July 2022, the Court rejected Dr Nugawela's document for filing as it did not comply with the Court's Rules. The time for Dr Nugawela to file and serve an appellant's case was extended to 19 July 2022.[30]
6. On 19 July 2022, the Court made orders by consent extending the time for Dr Nugawela to file and serve an appellant's case to 2 August 2022.[31]
7. Dr Nugawela did not file and serve an appellant's case by 2 August 2022.[32] Rather, he commenced a further appeal the following day (see [43]).
8. On 26 August 2022, the Court made orders extending the time for Dr Nugawela to file and serve an appellant's case to 16 September 2022, otherwise the appeal was to be dismissed. An order was made that Dr Nugawela pay the Board and AHPRA's costs of the hearing on 26 August 2022 in the amount of $500.[33]
9. Dr Nugawela did not file and serve an appellant's case by 16 September 2022.[34]
10. On 29 September 2022, the Court issued a certificate of conclusion of civil appeal in the Third Application, on the basis that Dr Nugawela had failed to comply with the orders made on 26 August 2022. [35]
11. On 7 October 2022, Dr Nugawela filed an application with the Court of Appeal for an extension of time to file an appellant's case in the Third Application. [36]
12. On 25 November 2022, Dr Nugawela's application for an extension of time to file an appellant's case was heard and dismissed.[37] The decision of the Court of Appeal is reported as Nugawela v Medical Board of Australia (WA Board) [2022] WASCA 156 which I will refer to as the Third Application Decision. The Court of Appeal noted the grounds of appeal proposed by Dr Nugawela:[38]
    1. In VR 71 the primary judge erred in law in failing to determine and declare breaches of National Law by AHPRA/Medical Board by ultra vires cancellation of registration six months after it had been unconditionally renewed. The primary judge ought to have exercised jurisdiction to determine clear precedence that the AHPRA/Medical Board does not have legal power to cancel registrations and their actions were clearly ultra vires even though they subsequently reversed their decision and registration was only partially given effect.
    2. The primary judge erred in law in failing to supply reasons for the order to withdraw the action. The primary judge ought to have exercised jurisdiction to bring a judgement [sic] and/or review decision upon reconsideration under [s 31 of the SAT Act]. From this, availability of other relief could be argued.
13. The Court of Appeal's reasons for dismissing the application were as follows:[39]

It was our view that the appellant's application to extend time dated 7 October 2022 should be dismissed, for the following reasons.

First, the appellant's conduct of the appeal up to and including 16 September 2022 has been characterised by chronic delays, only part of which, in the period December 2021 to April 2022, could plausibly be explained by ill health. Secondly, there is no cogent explanation for failing to comply with the order of 26 August 2022. The matters referred to by the appellant in his affidavit... are difficult to accept at face value, and without further explanation, given that, on 26 August 2022, his application to consolidate this appeal with CACV 70 was dismissed. Thirdly, the proposed grounds of appeal do not engage with the judge's reasons in the primary decision. Ground 1 is expressed in sweeping terms, the meaning and effect of which (making due allowance for the appellant as an unrepresented litigant) is not evident. It is not a proper ground of appeal and the appeal against the primary decision could not sensibly proceed on the basis of proposed ground 1 as presently articulated. Ground 2 seems to be a complaint directed more to the adequacy of reasons given by the Tribunal in its decision on 30 June 2020 in giving the appellant leave to withdraw VR 50 and for ordering that VR 50 was thereby withdrawn. Such a complaint, even if it had merit - which appears to be doubtful, given that the appellant had moved for such orders on that occasion - could not reasonably arguably constitute a ground establishing error by the Tribunal in the primary decision on 12 October 2021. Again, the appeal could not sensibly proceed on that basis. Moreover, to the extent that the appellant has a complaint about the withdrawal of VR 50, his other appeal, in CACV 70, seeks to deal with that matter directly. An appellant's case in that matter is due on 9 December 2022. Fourthly, the submissions which the appellant has filed in support of his application for an extension of time identify a number of potential grounds of appeal which do not form part of his appellant's case. Although the appellant has attached a minute of his proposed appellant's case to his affidavit in support of his application for an extension of time, it would appear that the appellant's case is not in its final form.

Finally, there is no reason to think that any further extension of time would result in the production of an appellant's case containing reasonably arguable errors in relation to the primary decision. In all the circumstances, it is not in the interests of justice to grant leave to extend time.

Fourth Application - Court of Appeal CACV 70 of 2022

1. The Fourth Application was an appeal to the Court of Appeal in respect of the First Application and the Second Application. It was filed on 3 August 2022, that is, prior to the final determination of the Third Application. The named respondent was AHPRA.[40]
2. Pursuant to Supreme Court (Court of Appeal) Rules 2005 (WA) (CA Rules) r 31 B(2)(b)(i), Dr Nugawela was due to file and serve an appellant's case by 7 September 2022. Dr Nugawela failed to file an appellant's case by that date. [41]
3. On 19 August 2022, Dr Nugawela filed an application in an appeal, requesting the Third Application and the Fourth Application be combined as a consolidated proceeding. [42]
4. On 26 August 2022, the Court of Appeal heard and dismissed Dr Nugawela's application in an appeal filed on 19 August 2022, and further ordered that the costs of the application be in the cause of the appeal.[43]
5. On 25 November 2022, the Court of Appeal made orders extending the time for Dr Nugawela to file and serve an appellant's case to 9 December 2022. The orders also provided that unless Dr Nugawela filed and served an appellant's case by 9 December 2022, the appeal would be dismissed and Dr Nugawela would be ordered to pay AHPRA's costs in the matter.[44]
6. On 9 December 2022, Dr Nugawela served a document by email which he advised had been filed with the Supreme Court, however it was not accepted for filing by the Court's registry as it did not comply with the Court's Rules.[45]
7. On 15 December 2022, the Court issued a certificate of conclusion of civil appeal in the Fourth Application, on the basis that Dr Nugawela had failed to comply with the Court's orders made on 25 November 2022. Dr Nugawela responded seeking a more detailed explanation which was then provided by the Court the same day.[46]
8. On 21 December 2022, Dr Nugawela filed an application for review of the orders of the Court made on 15 December 2022 dismissing the Fourth Application.[47] The grounds of review were:[48]
   1. The decision of JJ Murphy and Mitchell on 29 November 2022 dismissed the appeal for CACV102/2021 and allowed the appeal for CACV70/2022 based on the Grounds of Appeal provided to the Court. The appeal documents were submitted on time on 9 December 2022 in compliance to avoid the springing order.
   2. It was only a week later, on 15 December 2022, that the acting Court of Appeal Registrar advised the filing was not accepted due to non-compliance with the Supreme Court (Court of Appeal) Rules 2005 (WA). Earlier advice may have enabled immediate correction of any substantiated errors,
   3. Upon request, the reasons provided by the acting Court of Appeal Registrar contained several technical and substantive errors of its own in contradiction to and inconsistent with the requirements of the Supreme Court (Court of Appeal) Rules 2005 (WA). Additionally, there is a reference to sub‑rules 32(b)(i) and (ii) which does not exist.
   4. The acting Court of Appeal Registrar states that Appeal Grounds 2,6,7 and 8 does not comply with sub-iiile32(4)(c). A closer look at the Grounds clearly stipulates the failure to exercise power under the stated relevant sections of the State Administrative Act 2004 (WA) ('SAT Act 2004') and a lack of procedural fairness supported by case law. These are obvious errors of the stated law consistent with the intent of sub‑rule34(4)(c).
   5. The acting Court of Appeal Registrar states the 'Appeal grounds 1 to 6 and 8 do not identify an error that relates to the order made by President Pritchard on 30 June 2020, which is the subject of the appeal'. The error that relates to the dismissal order made includes several failures to exercise jurisdiction in the making of the order.
   6. The acting Court of Appeal Registrar states 'the particulars' relating to ... ground 7 are in the nature of submissions appeal ... and must reference the page or paragraph of the reasons for decision/transcript'. The specific particulars in support of procedural fairness are properly referenced in paragraphs (g) and (h) of ground 7.
   7. Of the 5 sub-sections in sub-rule 32(6), sub-rule 32(6)(b) requires must mark with an asterisk any legal authority from which it is intended to read any text to the Court of Appeal at the hearing. In the absence of any asterisk, the acting Court of Appeal Registrar incorrectly requires that 'it should be stated at the end of this document that it is not intended to read any text from, any authorities at the hearing of the appeal'. Sub‑rule 32(6) does not specify this.
   8. The correct 12-point type size in 'Calibri' was selected and it is contended that it satisfies the condition in Rule 21 (1)(A) that it is at least the size of type used for these rules (12-point Times New Roman). The rule relates to the size of type and does not command the use of the font type. Nonetheless, this could have easily been adjusted.
9. On 24 February 2023, the Court of Appeal heard Dr Nugawela's application for review dated 21 December 2022 and dismissed the application.[49] The decision is reported as Nugawela v Australian Health Practitioner Agency [2023] WASCA 37, which I will refer to as the Fourth Application Decision. Relevantly for present purposes, the Court of Appeal found:[50]

We have examined the document purporting to be an appellant's case provided to the court on 9 December 2022. Making due allowance for the appellant's position as a self-represented litigant, ... we are satisfied that it is not an appellant's case in accordance with r 32(4), (4A), (5), (6) and (9) and r 38(2) - (4A) of the Rules. Moreover, the nature of the document is such that it is not one that could sensibly be used by either the court or the respondent to determine an appeal against the orders for leave to withdraw VR 50 made on 30 June 2020.

In relation to the specific complaints raised by the appellant:

1. There was no appellant's case successfully filed in accordance with the springing order.
2. The springing order required an appellant's case to be filed and served on or before 4.00 pm 9 December 2022. That deadline was accepted by the appellant as more than enough time to file an appellant's case.[51] The appellant left it until the last day to file the document, with the consequence that if it were rejected for filing, the springing order would spring.
3. The reasons provided by the registrar were correct in substance. In context, the registrar was referring to r 32(3)(b)(i) and (ii).
4. Making due allowance for the appellant's position as a self‑represented litigant, the registrar's second reason correctly described the terms of grounds 2, 6, 7 and 8. Insofar as ground 7 impliedly alleged error of law, particulars to the ground appeared to raise questions of fact, including whether the appellant was allegedly 'misled'.
5. Grounds 1 ‑ 6 and 8 do not, on their face, impugn the Tribunal's decision to grant leave to the appellant to withdraw the proceedings in VR 50.
6. The overwhelming majority of the 'particulars' to grounds 1 ‑ 8 are a blend of submissions and allegations. Further, whilst it is doubtful that an appeal could lie with respect to an error of fact in these circumstances,[52] the appellant does not dispute the correctness of the registrar's fourth reason in relation to ground 1.
7. The complaint lacks substance. Whilst the appellant is correct in saying that r 32(6) does not require him to include a statement to the effect that no authorities will be read from, such a requirement stems from Practice Direction 2.1. Having said that, it is acknowledged that, on its own, this would not necessarily preclude the acceptance of the document for filing.
8. Aspects of the document are not of the requisite size, although, again, it may be accepted that if this were the only deficiency, it might not, on its own, justify the refusal of the document for filing.

9, 10

& 11 There was no obligation on the part of the registrar to give any further opportunity to attend to show cause why the document should be accepted for filing. That is particularly so where there have been delays in the prosecution of the appeal, a springing order had been made and, moreover, where the appeal itself was commenced over two years out of time. The springing order operated according to its terms once the appellant had failed to file and serve an appellant's case in accordance with the terms of the order. The occasion for the appellant to challenge the registrar's decision was by way of review under r 15 - which the appellant has now done.

Considering the matter afresh, and looking at it as a matter of substance, the appellant's document purporting to be an appellant's case was correctly rejected for filing.

1. As mentioned, on 16 June 2020, the Board filed the 2020 Disciplinary Application with the SAT ([20]).
2. On 27 October 2021, the Tribunal referred the 2020 Disciplinary Application to mediation, scheduled to be held on 16 December 2021.[53]
3. On 15 December 2021, Dr Nugawela's treating psychiatrist sent a letter to the SAT on behalf of Dr Nugawela. That letter was to the effect that Dr Nugawela was not capable of presenting his case in any of the matters which was then due to appear on. On 21 December 2021, the SAT vacated the mediation listed for 16 December 2021 and rescheduled the mediation for 20 January 2022.[54]
4. On 18 January 2022, Dr Nugawela's treating psychiatrist sent a further letter to the SAT advising that Dr Nugawela was expected to be incapacitated for a further three months.[55]
5. On 23 March 2022, AHPRA sent a letter to Dr Nugawela informing him the Board was proposing to take immediate action by imposing conditions on his registration, and inviting Dr Nugawela to make a submission to the Board. The conditions related to the potential impact of Dr Nugawela's mental health state on his ability to practice.[56] Dr Nugawela did not provide any submission.[57]
6. On 1 April 2022, AHPRA sent a letter to Dr Nugawela informing him of the Board's decision to take immediate action by imposing conditions on his registration (the First Immediate Action Decision). In summary terms, the conditions were that Dr Nugawela:[58]

(a) could only practice in a place of practice approved by the Board, with consent being given to the Board to seek information the senior person at the practice; and

(b) must undertake treatment with a psychiatrist.

1. On 5 April 2022, AHPRA received a letter from Dr Nugawela's treating psychiatrist dated 28 March 2022. The psychiatrist was asked to opine whether in 'light of your correspondence in the current proceedings in the state administrative tribunal suggesting that he is not fit to participate in those proceedings, whether Dr Nugawela is currently fit to practice safely as a healthcare practitioner'. The psychiatrist responded:[59]

This question has provided puzzlement to the legal practitioners involved despite my explanation. The very nature of anxiety is that attacks can be triggered by certain situations. In the past such anxiety was known as situational anxiety or phobic anxiety although the American Psychiatric Association has changed the emphasis renaming it panic disorder. A very common example is that panic attacks are triggered by crowded noisy places such as shops or social occasions. In the case of Dr Nugawela they are triggered by the extremely difficult situation in which the legal system has put him. Not only does he experience the extreme discomfort of anxiety when thus provoked but the effect on his thought processes would make it near impossible for him to represent himself. Throughout this he has assured me that he does not experience that sort of anxiety in the clinical situation. The occasional contacts that I have with him referring patients confirm this in my own observation.

In other words, Dr Nugawela was fit to practice as a medical practitioner, but not fit to participate in the disciplinary proceedings bought against him.

1. The Fifth Application was commenced on 11 April 2022, being an application to the SAT VR 21 of 2002. The State Board was the respondent. In the Fifth Application, Dr Nugawela sought a review of the First Immediate Action Decision.[60]
2. On 13 April 2022, Dr Nugawela filed an interim application seeking orders that pending the hearing of the Fifth Application there be a stay of the First Immediate Action Decision.[61]
3. On 10 May 2022, the SAT stayed the First Immediate Action Decision until further orders of the SAT. [62] The reasons for decision were reported at Nugawela and Medical Board of Australia [2022] WASAT 38. The specific orders made were stay the decision of the Board until a date shortly after a health assessment scheduled for Dr Nugawela on 12 May 2022. The issue of whether the stay should continue would then be revisited.
4. Dr Nugawela did not attend the appointment scheduled for 12 May 2022.[63]
5. The Board sought a revocation of the interim stay. On 31 May 2022 the SAT refused this application. In any event, on 31 May 2022, the SAT dismissed the Board's application. In the same order, the SAT invited the Board to reconsider its First Immediate Action Decision.[64]
6. On 21 July 2022 the Board decided to revoke the First Immediate Action Decision. Both Dr Nugawela and the SAT were informed of this decision. [65] The Board advised Dr Nugawela that its decision to revoke the First Immediate Action Decision 'was made on the basis that, on the information presently available, the Board no longer holds a reasonable belief that you pose a serious risk to persons such that immediate action is currently necessary'.[66]
7. On 29 July 2022, the SAT made orders programming the filing of written submissions by Dr Nugawela by 5 August 2022. [67]
8. On 8 September 2022, the 2020 Disciplinary Application was resolved between the parties at mediation. The resolution was recorded in orders made by the SAT on 8 September 2022. Given their significance to later applications, it is instructive to quote them in full:[68]

On the application of the parties to settle the proceedings:

The Tribunal notes:

The Applicant alleged that there is proper cause for disciplinary action against the Respondent under s193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010.

At the Mediation conducted on 8 September 2022 the parties agreed the substantive terms upon which the proceedings could be settled.

The facts agreed by the parties are contained in Annexure A.

The Tribunal is satisfied that proper cause exists for disciplinary action against the Respondent.

The Tribunal orders:

To give effect to the agreed terms of settlement, it is ordered that:

1. The Tribunal finds that by engaging in the conduct set out at Annexure A, the Respondent has behaved in a way that constitutes professional misconduct as defined in section 5 of the National Law;
2. The Respondent is reprimanded pursuant to section 196(2)(a) of the National Law;
3. The following conditions are to be imposed on the Respondent's registration under section 192(2)(b) of the National Law:

a) The Respondent must be supervised by another registered medical practitioner (the supervisor) in respect of the maintenance and storage of clinical records and storage of medicines.

For the purposes of this condition, 'supervised' is defined as:

The Practitioner must consult with the supervisor, who is to be accessible by telephone or other means of telecommunication and available to attend the workplace to observe and discuss the maintenance and storage of clinical records and storage of medicines, when necessary and otherwise at fortnightly intervals.

b) Within 28 days of the notice of the imposition of these conditions, the Respondent must, on the approved form (HPN10), nominate a primary supervisor and at least one alternate supervisor to be approved by Chair of the Medical Board of Australia (Chair of the Board).

c) The Respondent must ensure that each nomination is accompanied by an acknowledgement, on the approved form (HPNA10), from each nominated supervisor that they are willing to undertake the role of supervisor and are aware that AHPRA will seek reports from them.

d) In the event that no approved supervisor is willing or able to provide the supervision required, the Respondent must cease practice immediately and must not resume practice until a new supervisor has been nominated by the Respondent and approved by the Chair of the Board.

e) Within 14 days of the notice of the imposition of these conditions, the Respondent is to provide to AHPRA, on the approved form (HP10) acknowledgement that AHPRA may obtain information and/or a report from the approved supervisor on a monthly basis, or as required.

f) The Respondent must undertake and successfully complete a program of education, approved by the Chair of the Board and including a reflective practice report, in relation to the following topics;

1. record keeping and storage;
2. the Medicines and Poisons Regulations 2016 (WA) including the storage of Schedule 4 and 8 medicines;
3. transitioning/closing a Practice; and
4. Good Medical Practice: A Code of Conduct for Doctors in Australia.

g) Within 1 month of the notice of the imposition of these conditions, the Respondent must make a nomination to undertake either one on one education or a formal education course (the education) as follows:

On the approved form (HPN24), nominate for approval by the Chair of the Board an education course, assessment or program (the education) addressing the topics required. The Respondent must ensure the nomination includes a copy of the curriculum of the education.

1. nominate a person(s) to be approved by the Chair of the Board to act as educator, and
2. provide acknowledgement that AHPRA will obtain a report from the approved educator at the conclusion of the education.

The Respondent must ensure that the nomination of an educator is accompanied by acknowledgement, on the approved form (HPNA11), from the nominated educator and by an education plan outlining the form the education will take and how the topics of the education will be addressed.

h) The education must consist of a minimum number of 2 hours per Topic.

1. The Respondent must complete the education within 6 months of the notice of the Chair of the Board's approval of the education.

j) Within 1 month of the completion of the education, the Respondent must to provide to AHPRA:

1. evidence of successful completion of the education for each Topic; and
2. a reflective practice report demonstrating, to the satisfaction of the Board, that the Respondent has reflected on the issues that gave rise to this condition and how the Respondent has incorporated the lessons learnt in the education into the Respondent's practice.

k) Within seven days of commencement of practice at any new place of practice, the Respondent must provide to AHPRA, on the approved form (HPC), the contact details of a senior person (if applicable), such as the Director of Medical Services, Senior Practice Manager, Senior Manager, Senior Partner, or equivalent (the senior person) at each current place of practice, or notify AHPRA that there is no senior person (in the event he remains a sole practitioner in that practice).

In providing this form, the Respondent acknowledges that AHPRA will contact the senior person and provide them with a copy of the conditions on the Respondent's registration or confirm that the senior person has received a copy of the conditions from the Respondent.

1. All costs associated with compliance with the conditions on their registration are at the Respondent's own expense;

1. In accordance with section 196(3) of the National Law, there is a review period of 6 months for the above conditions; and
2. The Respondent pay the Applicant's costs of the Tribunal proceedings.

The facts agreed by the parties reflect the allegations which I have summarised at [20].

1. On 13 September 2022, the SAT dismissed the Fifth Application on the basis that it was misconceived. [69] There are no reasons for this decision in the materials before the court.

1. On 6 October 2022, Dr Nugawela filed an appeal notice in the General Division of the Supreme Court of Western Australia, naming the Board and AHPRA as the respondents, seeking to set aside the orders made by the SAT on 8 September 2022 (set out at [66]) (Sixth Application). Five grounds of appeal were identified in the appeal notice, and developed in some detail an annexure. The grounds were:[70]
   1. Denial of Procedural Fairness
   2. Ineffective legal representation
   3. Unconscionable agreement
   4. Deprivation of vocational livelihood
   5. Conflict of laws (Bankruptcy Act Cth. 1966, National Law WA(2010)
2. On 12 October 2022, Dr Nugawela filed a Notice of a Constitutional Matter under Judiciary Act 1903 (Cth) s 78B in the Sixth Application. The document comprised some 427 pages.[71]
3. On 31 October 2022, Dr Nugawela filed an application for a stay of the SAT's orders dated 8 September 2022 pending the hearing of the Sixth Application. [72]
4. On 16 November 2022, Dr Nugawela's application for a stay dated 31 October 2022 was dismissed. The decision is reported as Nugawela v Medical Board of Australia (WA Branch) [No 2] [2022] WASC 385. In relation to the effect on Dr Nugawela's livelihood, Allanson J observed:[73]

The effect on the applicant's livelihood, while he fails to comply with the conditions imposed, is relevant but not sufficient to require the grant of a stay. First, the applicant is currently registered. He has not presented evidence that he was unable to comply with the conditions imposed by the Tribunal or that compliance would be unduly onerous. Second, the appeal can be heard relatively quickly. There is no evidence that the applicant would suffer irremediable prejudice from the refusal of a stay for that period. Third, the applicant has not shown how it would be in the public interest for him to practice unrestricted while the appeal is pending. On the facts agreed in the Tribunal, even if there is no immediate threat to public health or safety, the public interest is served by conditions requiring the applicant to be supervised in his practice and to receive the further education ordered.

Dr Nugawela was ordered to pay the Board and AHPRA's costs of the application, to be fixed at $2,227.[74].

1. On 25 January 2024, the Court dismissed the Sixth Application. The decision is reported at Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 (Sixth Application Decision).[75] It is instructive to consider the reasons given by Lemonis J in relation to each of the grounds of appeal.
2. In relation to the assertion of a denial of procedural fairness, his Honour observed that the orders were in terms of a consent order signed by Dr Nugawela.[76] His Honour continued: [77]

In terms of the legal findings, the consent orders only have the effect of the parties accepting that the legal findings are established and the disposition is appropriate. However, ultimately it was for the SAT member to be independently satisfied of this. As I have explained, in my view, the SAT member was independently satisfied that the proposed legal findings and disposition were established and appropriate.

A further matter which Mr Nugawela emphasised in his oral submissions was he expected there to be a further hearing at which the appropriateness of the disposition reflected by the consent orders could then be agitated. Mr Nugawela seemed to suggest that at a later stage he could agitate the appropriateness of the orders to which he had consented... If that is what Mr Nugawela is suggesting, there is an air of unreality to it. On the one hand, by signing the consent orders, Mr Nugawela has conveyed that the consent orders reflect an appropriate disposition of the matter and that he accepts the facts as set out are proven. Yet, on the other hand, Mr Nugawela would be able to agitate at a later hearing that the disposition was not appropriate. In any event, there is no evidence before me to the effect that Mr Nugawela understood the consent orders to only reflect an indicative position on his part.

For these reasons, ground 1 is not made out

His Honour did, however, grant leave to appeal on ground 1.

1. Ground 2 related to 'ineffective legal representation'. His Honour observed that the '[j]udicial members of SAT went to great lengths to secure pro bono legal representation for Mr Nugawela'. [78] His Honour found: [79]

I have not been taken to any case authority that suggests incompetent legal representation provides an arguable basis to set aside orders made by an administrative body. The Medical Board says that complaints of ineffective legal representation are not questions of law and thus do not constitute an available ground of appeal for that reason.

I do not need to determine whether the allegations comprised in ground 2 articulate an available ground of appeal. I have come to the view that ground 2 is not made out in any event.

Predominantly, this is because there is no evidence which supports ground 2. Mr Nugawela did not adduce any evidence as to the advice given, or steps taken, by his legal representatives. He did not call evidence from his legal representatives. He declined to waive legal professional privilege in relation to his discussions with his lawyers as to their representation of him at the mediation. There is therefore no material before me upon which I can be satisfied that Mr Nugawela was incompetently represented, or that any such incompetence brought about an unfairness to Mr Nugawela in the making of the orders.

...

For these reasons, ground 2 is not made out. I do not consider it is in the interests of justice that leave to appeal be granted in respect of it. I therefore decline to grant leave to appeal in respect of ground 2.

1. Ground 3 was to the effect that the agreement was unconscionable. His Honour declined to grant leave to appeal on this ground, observing among other things:[80]

... the difficulty for Mr Nugawela is that there is no substantive evidence which supports the assertions comprised in ground 3. Most importantly, there is no evidence as to Mr Nugawela's state of mind when he signed the orders. So, there is no evidence as to how any such alleged unfairness affected his thinking when signing the consent orders. There also is no evidence as to the legal advice he received in relation to the consent orders and their implementation, or as to the legal advice he received throughout the course of the mediation.

In aid of his assertion of unconscionability, Mr Nugawela seeks to downplay the seriousness of the Medical Board's allegations. However, at their core and taken as a whole, those allegations did raise matters of substantial concern...

... the ultimate disposition of the matter constituted by a reprimand and conditions of supervision, education and notification is not on its face disproportionate to the underlying agreed factual basis for the orders. Also, at the risk of repetition, the orders had a relatively short review period of six months.

1. Ground 4 was to the effect that the orders deprived him of a vocational livelihood. His Honour again declined to grant leave to appeal, stating among other things:[81]

The Medical Board submits that ground 4 does not raise any question of law. It seems to me that the substance of Mr Nugawela's complaint is that at the point in time the orders were made, the conditions that they imposed were substantially unnecessary and substantially unworkable. It may well be that where a condition is imposed that is substantially unnecessary or substantially unworkable, there could be an argument that the decision is unreasonable and thus there has been a failure to properly exercise the discretion reposed by law in SAT. If that were the case, it would constitute an implied error of law...

However, the difficulty for Mr Nugawela is that there is no evidence before me which supports such a conclusion ...

1. Gound 5 arose out of the fact that on 21 February 2017 Dr Nugawela was declared bankrupt with the result that his property was vested in his trustee in bankruptcy.[82] In summary, his argument was:[83]

The broad contentions underpinning ground 5 are two‑fold. First, that the HPL is inoperative by force of s 109 of the Constitution in that it is inconsistent with the provisions of the Bankruptcy Act. Second, the Medical Board's allegations raised in VR 53/2020 required SAT to rule on what right or rights Mr Nugawela had to property vested in his bankruptcy trustee, which was outside the jurisdiction of SAT. Mr Nugawela therefore contends the proceedings give rise to a matter of a description within s 76(i) and s 76(ii) of the Constitution. Accordingly, Mr Nugawela contends SAT should not have proceeded to dispose of the proceedings, as it did not have jurisdiction to do so. This raises a question of law.

1. In relation to the fist contention, Lemonis J opined: [84]

In respect of Mr Nugawela's first contention, Mr Nugawela simply asserts in very broad terms that there is an inconsistency between the operation of the Bankruptcy Act and the HPL. Mr Nugawela has not pointed to any provisions of the Bankruptcy Act which expressly or by implication are inconsistent with the provisions of the HPL. In my view, a claim raised in such a broad and imprecise manner is incapable on its face of legal argument.

Moreover, while it may be accepted that the vesting of Mr Nugawela's property in his trustee in bankruptcy may affect how as a matter of practicality he goes about working as a medical practitioner, that does not give rise to any inconsistency between the HPL and the Bankruptcy Act. Furthermore, the Bankruptcy Act does not prevent Mr Nugawela from working as a medical practitioner.

Accordingly, Mr Nugawela's first contention in support of ground 5 does not give rise to a matter of a description in s 76 of the Constitution.

1. The context for the second contention was that when he was declared bankrupt in February 2017, Dr Nugawela was carrying on medical practice from a property in Greenwood that he owned. On 1 September 2017, Dr Nugawela's trustee in bankruptcy directed that Dr Nugawela cease using the premises immediately. Further, there was a registered mortgage over the premises in favour of a bank. On 21 June 2018, the bank took possession of the premises in its capacity as mortgagee.[85] His Honour observed:[86]

Mr Nugawela could have engaged with both the mortgagee and his trustee in bankruptcy so as to put in place appropriate arrangements for the storage or possible transfer of the relevant documentation. It was Mr Nugawela who had the unique knowledge as to what was there and the need for it to be stored or transferred.

1. His Honour found that the decision of the SAT did not raise any controversy that required a determination of Dr Nugawela's rights in respect of the medical records or the medicines. Accordingly, it did not raise a matter within s 76(i) or (ii) of the Constitution.[87] His Honour held that ground of appeal 5 had not been made out and declined to grant leave to appeal in respect of it.[88]
2. The appeal was dismissed.[89] His Honour further ordered that Dr Nugawela pay the Board's costs in respect of the appeal.[90]

1. On 14 November 2022, Dr Nugawela filed an appeal notice with the Supreme Court of Western Australia Court of Appeal in respect of the dismissal of the Fifth Application, naming the Board as the respondent, which became proceedings number CACV 110 of 2022 (Seventh Application).[91]
2. Pursuant to CA Rules r 31 B(2)(b)(i), Dr Nugawela was due to file and serve an appellant's case by 19 December 2022. Dr Nugawela failed to file an appellant's case by that date.[92]
3. On 24 February 2023, the Court made orders requiring Dr Nugawela to file and serve an appellant's case by 10 March 2023.[93]
4. Dr Nugawela did not file and serve an appellant's case by 10 March 2023.[94]
5. On 22 March 2023, Dr Nugawela filed an appellant's case with the Court listing four grounds of appeal. [95]
6. On 23 March 2023, the Court issued a notice for the parties to attend Court on 26 May 2023. The Registrar of the Court of Appeal wrote to the parties advising the hearing had been listed to consider the application for leave to appeal and whether the appeal should be dismissed on the basis that none of the grounds of appeal had a reasonable prospect of success. Orders were also made staying the Board's requirement to file a response pending determination of the hearing. [96]
7. On 26 May 2023, the Court dismissed the Seventh Application, finding none of the grounds of appeal had reasonable prospects of success and that leave to appeal should not be granted.[97] The decision was reported as Nugawela v Medical Board of Australia [2023] WASCA 92 (Seventh Application Decision). In relation to the four grounds of appeal, the Court of Appeal stated:[98]

There are four proposed grounds of appeal. They traverse four pages and are, with respect to the appellant, unnecessarily verbose and tendentious. In substance:

1. By ground 1 the appellant contends that the Tribunal erred in law in finding that the reconsideration decision was a substituted decision for the purpose of s 31(2)(c) of the SAT Act.
2. Ground 2 is in part repetitive of ground 1. Ground 2 need not be summarised so far as it simply repeats the substance of ground 1. Separately, by ground 2, the appellant contends that the Tribunal erred in law in dismissing the review proceeding under s 47(2) of the SAT Act as the Board's reconsideration decision continued with the Board's 'further action' (apparently referring to the Board's decision to investigate the appellant and to require the appellant to undergo a health assessment) ...
3. By ground 3 the appellant contends that the Tribunal erred in law by failing to consider new material which did not exist at the time of the Board's decision on 1 April 2022, namely, a letter from Professor Skerritt dated 5 April 2022.
4. By ground 4 the appellant contends that the Tribunal erred in law by failing to exercise powers under s 87 of the SAT Act for compensation requested by the appellant.

In so summarising the proposed grounds of appeal we are conscious that there are numerous strands of argument in the particulars to the grounds which self-evidently exceed the scope of each ground. For example, as to ground 1, there is a particular contending that the Tribunal erred in law by conflating the term 'appellable decision' in s 199(1) of the National Law with the term 'reviewable decision' in the SAT Act. It is not necessary to refer to these additional arguments. The purpose of particulars to a ground of appeal is to clarify and explain the ground. They cannot independently amount to a separate ground of appeal. It is not necessary to address the various particulars where they exceed the scope of the ground of appeal.

The appellant's orders wanted on the appeal are confused and confusing. The appellant seeks various matters described as 'confirmation and declaratory judgement' (sic). In substance the appellant seeks orders of this court confirming that his understanding of the alleged wrongful acts and decisions of the Board and the Tribunal is correct. Otherwise the appellant seeks remission of the matter to the Tribunal to be reheard according to law.

1. The Court of Appeal dismissed the appeal:[99]

It is not in the interests of justice to grant leave to appeal against the Tribunal's decision to dismiss the review proceeding. The proposed grounds of appeal do not establish sufficient doubt as to the correctness of the Tribunal's decision to justify leave to appeal. Nor has it been shown that leaving the Tribunal's order unreversed would impose substantial injustice.

...

We are not satisfied that the Tribunal's decision is attended by sufficient doubt to justify leave to appeal. Indeed, none of the grounds of appeal have a reasonable prospect of succeeding.

1. The language used by the Court of Appeal in relation to each ground of appeal is strong: [100]

Ground 1 does not have a reasonable prospect of succeeding. To the contrary it is doomed to fail.

...

Ground 2 does not have a reasonable prospect of succeeding. It must fail.

Ground 3 is without merit.... Ground 3 does not have a reasonable prospect of succeeding. On the contrary, it must fail.

...

Ground 4 does not have a reasonable prospect of succeeding. It must inevitably fail.

1. The Court of Appeal further determined that there was no substantial injustice in allowing the Tribunal's decision to stand:[101]

The appellant will not suffer substantial injustice if the Tribunal's decision remains unreversed.

The appellant has, in practical effect, obtained what he sought by commencement of the review proceeding in the Tribunal: the appellant has successfully obtained the removal of the conditions that were imposed on the appellant's registration as a result of the Board's decision to take immediate action.

There is, in our view, no substantial injustice in being required to undergo a health assessment. In any event, based on what is stated by the appellant in his written submissions in the appellant's case, it appears that the appellant has already attended his appointment for a health assessment ....

Nor is there substantial injustice in the Board deciding to investigate the appellant. Any such investigation may, or may not, result in the Board deciding to take immediate action. Alternatively, it may, or may not, result in the Board taking some other action under pt 8 of the National Law. Any adverse consequence suffered by the appellant will be caused by the Board's future (as yet uncertain) action rather than the Board deciding to investigate the appellant.

In any case, the appellant will be able to exercise his rights under the National Law and the general law if, properly advised, he considers that any such future action is unjustified.

1. On 15 February 2024, Dr Nugawela filed an appeal notice with the Supreme Court of Western Australia Court of Appeal in respect of the dismissal of the Sixth Application, naming the State Board as the respondent, which became proceedings number CACV 9 of 2024 (Eighth Application).[102]
2. Pursuant to CA Rules r 31 B(2)(b)(i), Dr Nugawela was due to file and serve an appellant's case by 21 March 2024. Dr Nugawela failed to file an appellant's case by that date.[103]
3. On 27 March 2024, the Court made orders by consent extending the time for Dr Nugawela to file and serve an appellant's case to 19 April 2024.[104]
4. On 24 May 2024, Dr Nugawela attempted to file an appellant's case with 13 grounds of appeal with the Court, however, it was not accepted for filing by the Court's registry as it did not comply with the Court's Rules. On the same day. Dr Nugawela filed an affidavit sworn on 23 May 2024.[105]
5. On 24 May 2024, the parties were called to attend a hearing to show cause as to why the appeal should not be dismissed due to Dr Nugawela's failure to file an appellant's case. Dr Nugawela was subsequently granted an extension by the Court until 21 June 2024 to file an appellant's case. An order was made that Dr Nugawela pay the Board's costs of the application to be fixed at $693, and that those costs be paid by 7 June 2024. The Court further ordered that if Dr Nugawela failed to file an appellant's case by 21 June 2024, the appeal would be dismissed.[106]
6. On 20 June 2024, Dr Nugawela lodged a document with the Court's registry which was not accepted for filing as the document did not comply with the Court's Rules.[107]
7. On 24 June 2024, the Court issued a certificate of conclusion of civil appeal in the Eighth Application, on the basis that Dr Nugawela had failed to comply with the Court's orders made on 24 May 2024.[108]
8. On 9 July 2024, Dr Nugawela attempted to file a substituted application in the appeal, an application for review of the decision to dismiss the Eighth Application, and an affidavit with the Court.[109]
9. On 11 July 2024, the Court sent a letter to the parties advising that Dr Nugawela's documents had not been accepted for filing.[110]
10. On 22 July 2024, Dr Nugawela filed an application for an extension of time to file an amended appellant's case, together with an affidavit in support of the application.[111]
11. On 23 August 2024, the Court heard and dismissed Dr Nugawela's application for an extension of time, on the basis that none of the proposed grounds of appeal were reasonably arguable.[112] The decision was reported as Nugawela v Medical Board of Australia (WA Branch) [2024] WASCA 101 (Eighth Application Decision).
12. The Court of Appeal set out the proposed grounds of appeal:[113]

The proposed appellant's case contains five proposed grounds of appeal which, shorn of particulars, are shortly stated:

1. The learned judge erred in law in acting wholly outside jurisdiction in determining that the [Tribunal] was not required to determine the status/ownership of the appellant's medical practice property vested in the trustee under the Bankruptcy Act 1966 (Cth), so misconstruing the appellant's constitutional 'section 109 defence.'
2. The learned judge erred in fact and law by failing to determine and to exercise jurisdiction vested under the Australian Constitution, the Judiciary Act 1903 (Cth) and the Bankruptcy Act 1966 (Cth) to establish the validity of a 'matter' raised by the appellant as a constitutional defence.
3. The learned judge erred in law finding that the 'Consent Orders' dated 8 September 2022 stood as lawful 'Findings' and 'Orders' of the Tribunal and giving rise to errors on the face of the record.
4. The Honourable Judge erred in upholding professional misconduct findings and ancillary orders made by the Ordinary Member as Final Orders of the Tribunal.
5. The learned judge fell into jurisdictional error in law by a denial of procedural fairness to the appellant and errors in fact and law.

However, the particulars to these grounds are long and discursive, often containing statements which are in the nature of submissions with footnoted references to evidence and authorities in a way not provided for by the Rules. On other occasions, the particulars assert myriad errors by the primary judge. The length of the grounds and particulars in combination is 8 pages. While this is a marked improvement on the 35 pages in the document lodged on 22 May 2024, it remains difficult to characterise the particulars to the appellant's proposed grounds as 'concise' within the meaning of r 32(4)(b) of the Rules.

1. The Court of Appeal observed (my italics): [114]

There are some factors in this case which tend to count in favour of the grant of an extension of time. While justifying the making of the springing order, the appellant's delay in filing an appellant's case was not egregious. He attempted to comply with the springing order by filing a document on 20 June 2024. There is no particular prejudice to the respondent, a professional regulatory authority, if an extension of time is granted. If the appeal had merit, there would be at least some prospect of the appellant being prejudiced if an extension is not granted and the appeal remains dismissed. The record of this court indicates that breach of the conditions imposed by the Tribunal's orders has been relied on by the respondent in suspending the appellant's registration as a medical practitioner ... Without making any determination as to the impact of allowing the appeal on that suspension, if the Tribunal's orders were now to be set aside then that may impact on the way the appellant's registration is dealt with in the future.

Against that, the document which the appellant now proposes to file still does not comply with r 32 of the Rules and the history of this matter gives us no confidence that the appellant has the capacity to remedy the defects in the immediate future.

If there was merit in the appellant's appeal, then it might be appropriate to grant the self-represented appellant some indulgences in relation to compliance with the Rules and to grant an extension of time. However, for the following reasons, none of the appellant's proposed grounds of appeal, so far as they can be discerned, are reasonably arguable. This is a case where there is no utility in resuscitating an appeal that is devoid of merit.

...

In our view, the primary judge was clearly correct to dismiss the appellant's appeal to the General Division for the reasons which his Honour gave.

In the circumstances, as the respondent submits, there is no reasonable basis upon which to conclude that any further extension of time would result in the production of an appellant's case that contains reasonably arguable grounds for impugning the primary decision and is compliant with the Rules.

Having regard to all of the above matters, we were not satisfied that it was in the interests of justice to grant the appellant an extension of time to comply with the springing order.

Again, the language used to characterise the lack of merit of the appeal is strong.

1. On 3 August 2022, Dr Nugawela applied to the Board to renew his general and specialist registration as a medical practitioner.[115]
2. On 22 December 2022, AHPRA sent a letter to Dr Nugawela notifying him of a requirement to provide the Board with further information and evidence by 12 January 2023 as part of considering his application for renewal. The letter also notified Dr Nugawela of the Board's decision that he was required to undergo a health assessment with a Board approved psychiatrist to assess his fitness to practice.[116]
3. On 20 January 2023 AHPRA sent a letter to Dr Nugawela in relation to a health assessment as directed by the Board as part of considering his application for renewal.[117]
4. On 4 February 2023, Dr Nugawela sent a letter to AHPRA requesting removal of the condition requiring him to attend a health assessment.[118]
5. On 22 March 2023, Dr Nugawela filed an application with the SAT, naming the State Board as the respondent, seeking review of the Board's alleged decision to not renew his registration, to impose a condition on his registration, and to refuse to change or remove a condition on his registration, which became proceedings number VR 21 of 2023 (Ninth Application).[119]
6. On 20 April 2023, AHPRA sent a letter to Dr Nugawela advising the Board was proposing to take immediate action by suspending his registration, and inviting Dr Nugawela to make a submission to the Board.[120]
7. On 4 May 2023, AHPRA sent a further letter to Dr Nugawela advising the Board was proposing to take immediate action by suspending his registration, and inviting Dr Nugawela to make a submission to the Board.[121]
8. On 9 May 2023, the SAT made orders to determine a preliminary question as to whether the Tribunal had jurisdiction to hear the Ninth Application.[122]
9. On 12 May 2023, the Board decided to take immediate action to suspend Dr Nugawela's registration as a medical practitioner, because he had failed to comply with the conditions imposed on his registration while continuing to practice as a medical practitioner (Second Immediate Action Decision).[123]
10. On 23 May 2023, the SAT made orders listing a directions hearing on 30 May 2023 to allow Dr Nugawela to consider any application under SAT Act s 47 or otherwise, and to permit Dr Nugawela to consider whether he wished to withdraw the Ninth Application.[124]
11. On 30 May 2023, the SAT made orders requiring the Board to file and serve any application it intended to bring pursuant to SAT Act s 47.[125]
12. On 30 May 2023, the Board filed an application for an order to dismiss the Ninth Application pursuant to SAT Act s 47, on the basis that the proceeding was frivolous, vexatious, misconceived and/or lacking in substance.[126]
13. On 9 June 2023, the Board filed submissions with respect to its application dated 30 May 2023.[127] The submissions noted that, as at 10 May 2023, Dr Nugawela's registration remained in force and was the subject only of conditions that had been imposed by consent orders entered on 8 September 2022 (see [66]). Moreover, as at the same date, the renewal application remained subject to assessment by the Board, so no decision had been made not to review his registration. It was the Second Immediate Action Decision which caused Dr Nugawela's registration to be suspended.
14. On 12 June 2023, the Board's application was listed for a hearing on 29 August 2023.[128]
15. On 20 July 2023, Dr Nugawela filed submissions, and further filed affidavits on 24 July 2023 and 4 August 2023.[129]
16. On 15 August 2023, the SAT made orders vacating the hearing of the Board's SAT Act s 47 application. In its place the SAT heard the interim application in the Eleventh Application (VR 81 of 2023) (see [129] and [130] below).[130]
17. On 12 March 2024, the SAT wrote to the parties by email suggesting that the proceeding was 'effectively pointless' given the position with Dr Nugawela's registration pursuant to the immediate action taken by the Board.[131]
18. On 19 March 2024, the matter was listed for a directions hearing on 23 April 2024.[132]
19. On 18 April 2024, Dr Nugawela responded to the SAT's email of 12 March 2024 advising that he wished to discontinue the Ninth Application.[133]
20. On 28 May 2024, Dr Nugawela was granted leave to withdraw the Ninth Application, and the Ninth Application was subsequently dismissed.[134]

1. On 16 June 2023, Dr Nugawela filed a writ with the Supreme Court of Western Australia, naming the State Board as the respondent, seeking injunctive relief in relation to the Second Immediate Action Decision, as well as in respect of the orders made by the SAT subject to appeal in the Sixth Application, which became proceedings number CIV 1636 of 2023 (Tenth Application).
2. On 28 July 2023, Dr Nugawela made an application to the SAT, naming the State Board as the respondent, to review the Second Immediate Action Decision, which became proceedings number VR 81 of 2023 (the Eleventh Application).[135] As the Eleventh Application was determined prior to the Tenth Application, it makes sense in terms of the chronology to review this application before reviewing the Tenth Application.
3. On 31 July 2023, Dr Nugawela filed an interim application requesting orders that the Second Immediate Action Decision be stayed pending the hearing of the Eleventh Application.[136]
4. On 15 August 2023, the SAT made Orders listing Dr Nugawela's interim application for a hearing (simultaneously vacating the hearing date for the Ninth Application, see [120]).[137]
5. On 29 August 2023, the SAT heard Dr Nugawela's interim application.[138]
6. On 4 September 2023, the SAT dismissed Dr Nugawela's interim application.[139] The decision is reported as Nugawela v Medical Board of Australia [2023] WASAT 82. The President said: [140]

Bearing in mind that I am engaging only in a broad-brush assessment, on the evidence thus far, I consider that the Board's contention that the Conditions are directed to the protection of the public from the repetition of Dr Nugawela's previous conduct, which would pose a risk to public safety, is clearly arguable. I consider that the Board's belief as to the existence of a risk to the safety of patients arising from non‑compliance with the Conditions is based on circumstances capable of being proved, and which are sufficient to support that belief. Having regard to the evidence before the Tribunal on the Stay Application, it is clearly arguable that the Board's belief that the risk to patient safety exists because of Dr Nugawela's conduct, is a reasonable one. And insofar as the Board believes that the risk posed by Dr Nugawela is a serious risk, it is arguable that that belief is a reasonable one, having regard to Dr Nugawela's acceptance that he failed to engage a supervisor, contrary to the Conditions, in light of the admitted prior conduct which formed the basis for the Tribunal's Orders, and having regard to the evidence that suggests that Dr Nugawela continued to see patients, and prescribe them medicines, even after the Suspension Decision.

The Board's belief that the risk posed to patient safety is a serious one is on its strongest footing in relation to Dr Nugawela's failure to engage a supervisor in relation to his storage of drugs which are subject to the Poisons Regulations. Absent the oversight of a supervisor, the risk that Dr Nugawela may repeat the conduct of the past in failing to store drugs in accordance with the Poisons Regulations can arguably be regarded as a serious risk to persons by virtue of the dangers of improper access to, and misuse of, such drugs.

However, even in relation to Dr Nugawela's failure to engage a supervisor in relation to his storage of patient information, the very sensitive personal information that necessarily is contained in a patient's medical records means that it is clearly arguable that the risk to persons from improper access to their patient records can be regarded as a serious risk.

Counsel for the Board submitted that the Tribunal should take into account the fact that in the Review Proceedings, it would be open to the Tribunal to find that there is also an additional basis apart from reliance on s 156(1)(a) of the National Law for the conclusion that the correct and preferable decision is the suspension of Dr Nugawela's registration. Counsel for the Board submitted that the evidence supports a reasonable belief that suspension of Dr Nugawela's registration would be in the public interest under s 156(1)(e) of the National Law. The Board submitted that quite apart from the risk to patients, Dr Nugawela's 'ongoing and admitted conduct in contravention of [the Conditions] seriously undermines public confidence in the profession'...and that for that to continue would be contrary to the public interest. Assessing that submission on a broad-brush basis, I accept that it is arguable, having regard to the evidence on the Stay Application.

Given the evidence which suggests that Dr Nugawela was aware that he was required to comply with the Conditions, and that he failed to comply with those Conditions from the outset, it is clearly arguable that it was necessary to take a form of immediate action which would protect public safety. Given that the imposition of the Conditions on Dr Nugawela's registration had not been sufficient to achieve the protective purpose for which the Conditions were designed, it is also arguable that it was necessary to take some other form of immediate action which could achieve that protective purpose. The difficulty for Dr Nugawela is that it is not immediately apparent that any other form of immediate action, short of suspension of his registration, would have been capable of achieving that protective purpose.

1. On 6 October 2023, Dr Nugawela wrote to the SAT seeking to withdraw the Eleventh Application.[142]
2. On 10 October 2023, the SAT wrote to the parties and proposed to make orders granting leave to withdraw and dismissing the proceeding.[143]
3. On 11 October 2023, Dr Nugawela responded to the Tribunal's email indicating that he only sought to withdraw and not to dismiss the Eleventh Application.[144]
4. On 11 October 2023, the SAT listed the matter for a directions hearing on 17 October 2023.[145]
5. On 16 October 2023, Dr Nugawela wrote to the SAT to advise he would be unable to attend a hearing on 17 October 2023. The Tribunal informed Dr Nugawela that it would vacate the hearing on 17 October 2023 and relist it for 24 October 2023, and if Dr Nugawela was unable to attend on 24 October 2023, the matter would be dealt with and orders might be made in his absence. The Tribunal proceeded to make orders for a hearing on 24 October 2023.[146]
6. On 23 October 2023, Dr Nugawela filed a section 78B Notice of a Constitutional Matter in the Tenth Application. This was in a similar form to the section 78B Notice filed in the Sixth Application (see [69]).[147]
7. Also on 23 October 2023, Dr Nugawela wrote to the SAT to advise he would not be attending the hearing on 24 October 2023. The Tribunal informed Dr Nugawela that if he did not attend hearing the Tribunal would make orders dealing with his application for withdrawal in his absence.[148]
8. On 24 October 2023, Dr Nugawela wrote to the SAT raising a question about the Tribunal's jurisdiction, given his contention that he had a Constitutional defence.[149]
9. On 24 October 2023, the SAT made orders granting Dr Nugawela leave to withdraw the Eleventh Application and dismissed it.[150]

Tenth Application - Supreme Court CIV 1636 of 2023

1. As mentioned, the Tenth Application was filed on 16 June 2023.
2. On 21 June 2023, Dr Nugawela filed an urgent application requesting interim orders that the Second Immediate Action Decision and the orders made by the SAT on 8 September 2022 (see [66] above), be stayed pending the hearing of the Tenth Application.[151]
3. On 26 June 2023, following a hearing of Dr Nugawela's urgent application, the Court adjourned the application sine die.[152]
4. On 11 July 2023, Dr Nugawela filed a writ of originating summons naming the State Board and AHPRA as respondents, seeking dismissal of the Second Immediate Action Decision.[153]
5. On 21 July 2023, Dr Nugawela filed a notice of originating motion naming the State Board as respondent, seeking the same relief.[154]
6. On 24 July 2023, the Court made orders dismissing Dr Nugawela's interlocutory application of 21 June 2023 (referred to at [142]). The Court also ordered Dr Nugawela to pay the Board's costs of the hearing on 26 June 2023 and 24 July 2023, to be fixed in the sum of $2,222.00.[155]
7. On 11 August 2023, the Board filed a chamber summons for summary judgment and to strike out the notice of originating motion in its entirety.[156]
8. On 5 September 2023, the Court made orders programming the filing and serving of written submissions in relation to the Board's chamber summons dated 11 August 2023.[157]
9. On 18 September 2023, the Court made orders adjourning the case management conference until after the determination of the Board's chamber summons dated 11 August 2023, and that the costs of the hearing on 18 September 2023 be in the cause, fixed at $506.[158]
10. On 20 February 2024, the Court heard the Board's chamber summons.[159]
11. The Board's application to strike out the Tenth Application was determined by Cobby J on 3 April 2024 in a decision reported as Nugawela v Medical Board of WA [2024] WASC 100 (Tenth Application April Decision).
12. Cobby J proceeded on the basis that the claims then being pursued by Dr Nugawela in the proceeding were:[160]
    1. Dismissal of the Immediate Action decision of the Medical Board of 12 May 2023 under s 156 National Law, made retrospective to that date.
    2. Restoration of Dr Nugawela's medical registration to its full and unconditional status that existed prior to 12 May 2023.
    3. The orders of the State Administrative Tribunal of 8 September 2022 currently on appeal under GDA 11/2022 WA Supreme Court, be stayed until the appeal is heard and determined.
    4. Dismissal of the SAT s 47 application by the respondents to dismiss the review action on foot for renewal of an existing registration (SAT VR 21/2023).
    5. Costs and compensation issues to be deferred to a separate hearing. The SAT Act s 105(13) applies.
13. His Honour observed of the letter of 20 April 2023 (referred to at [109]):[161]

In my opinion, on a fair reading of the letter of 20 April 2023 as a whole, it was clear that the defendant's reason for proposing to take immediate action was Mr Nugawela's failure to comply with the conditions imposed by the orders made on 8 September 2022, in circumstances where Mr Nugawela's application for a stay of those orders had been denied. That was so despite the defendant's express statement that it had concerns about Mr Nugawela's health.

1. In the Tenth Application April Decision Cobby J accepted that it was arguable that Dr Nugawela's continuation of those proceedings after having commenced VR 81 of 2023 (Eleventh Application) constitutes an abuse of process. However, and as mentioned [139], by the time the Board's strike out application came to be determined, the Eleventh Application had been resolved. Primarily because of this, Cobby J, with some reservation, declined to find that the first and second claims in the Tenth Application constituted an abuse of process.[162] His Honour also declined the Board's application for summary judgment in relation to the first and second claims.[163]
2. In relation to the third claim, which sought a stay of the orders made on 8 September 2022 until the determination of Sixth Application, his Honour concluded that the continuation of this claim constituted an abuse of process, the court having refused his application for a stay in the Sixth Application in October 2022 (see [70]) and the Tribunal having, in essence, done the same on 4 September 2023 (see [129]). Any further application for a stay by Dr Nugawela would constitute a third attempt to raise the same issues, and would therefore constitute an abuse of process in the absence of any fresh material in support of the application. Further, this ground no longer had any utility as Lemonis J dismissed Dr Nugawela's appeal in the Sixth Application on 25 January 2024 ([71]).[164]
3. In relation to the fourth claim, which sought dismissal of VR 21 of 2023 (that is, the Ninth Application), Cobby J found this to be an abuse of process. This was on the basis that allowing Dr Nugawela to seek this relief would result in Board having to deal with the matters raised by its application in VR 21 of 2023 both before the Tribunal and this court, and would therefore constitute an abuse of process. [165]
4. In relation to the fifth claim, for damages and costs, Cobby J struck this out on the basis that it did not give rise to a triable issue. This was on the basis that there is no entitlement to claim damages in SAT proceedings nor in judicial review proceedings.[166]
5. The first and second claims proceeded to trial. In a decision handed down on 23 December 2024, Cobby J dismissed the application. This decision was reported as Nugawela v Medical Board of WA [No 2] [2024] WASC 496 (Tenth Application December Decision).
6. Cobby J identified seven grounds on which Dr Nugawela sought judicial review of what I have referred to as the Second Immediate Action Decision:[167]
   1. that there was a lack of evidence as to the nature, seriousness and ongoing nature of the risks presented by Mr Nugawela continuing to carry on practise identified by the Board in reaching its decision;
   2. the Board failed to take into account relevant facts in arriving at its decision, those facts said to include that Mr Nugawela's previous conduct had caused no harm to his patients;
   3. the material before the Board did not demonstrate what future risk existed to warrant it taking immediate action against him;
   4. Mr Nugawela's failure to comply with orders made by consent in the State Administrative Tribunal did not justify the Board exercising its powers under the National Law;
   5. the Board used its power to suspend Mr Nugawela to enforce the orders made in the Tribunal, when it had no power to do so;
   6. there was no evidence that the immediate action committee of the Board had unanimously resolved to take immediate action against Mr Nugawela; and
   7. the Board exercised its power to take immediate action in relation to Mr Nugawela in bad faith.
7. His Honour found that Dr Nugawela failed to make out any of those grounds, and dismissed the Tenth Application. [168]

1. On 28 January 2025, Dr Nugawela filed a notice of originating motion in the General Division of the Supreme Court of Western Australia, naming the State Board as the defendant, seeking to recall the judgment and the orders made by the Court on 23 December 2024 in the Tenth Application, which became proceedings number CIV 1081 of 2025 (Twelfth Application).[169] The grounds advanced were:[170]

The Respondent's critical and substantial evidentiary document ('Business Records') could not be challenged by virtue of not being accepted by the presiding judge at the final hearing resulting in denial of justice to the Applicant due to no fault of the Applicant;

The Business Records were in contention by the Applicant at the hearing; the presiding judge reserved decision on the admissibility;

The judgement has not been perfected;

The Applicant's case could not be heard to completion due to no fault of the Applicant; No opportunity of being heard on questions which proved to be decisive in the determination of the action.

The orders and judgement of this superior court, brought per incuriam, would bind lower courts and non-court tribunals, where current actions are on foot relying on the same Business Records of the Respondent;

Injustice to the Applicant from breach of procedural fairness.

1. On 29 January 2025, the Court heard and determined to dismiss the Twelfth Application, with the Court finding that no grounds to reopen the Tenth Application had been established by Dr Nugawela.[171]

1. On 23 July 2024, the Board filed an application for disciplinary action against Dr Nugawela in the SAT pursuant to National Law s 193(1)(a) which became proceedings number VR 66 of 2024 (2024 Disciplinary Action).[172]
2. On 19 August 2024, the SAT emailed the Board and Dr Nugawela to advise that a directions hearing had been listed for 27 August 2024. On 20 August 2024, Dr Nugawela wrote to the SAT and advised that he was unaware of the 2024 Disciplinary Action and that he had not been served with any documents in relation to it.[173]
3. As a result of Dr Nugawela's email dated 20 August 2024, Ms Millar became aware that Clayton Utz had failed to effect service due to an error. The same day, she instructed for Ms Emma Young of Clayton Utz to effect service by email of the application on Dr Nugawela and proposed a consent order to adjourn the directions hearing listed for 27 August 2024.[174]
4. On 26 August 2024, the SAT made orders vacating the hearing listed for 27 August 2024 and listed the matter for a directions hearing on 22 October 2024.[175]
5. On 22 October 2024, the SAT made orders for the filing of documents.[176]
6. On 12 November 2024, the Board filed its Statement of Issues, Facts and Contentions and its bundle of documents.[177]
7. On 6 December 2024, Dr Nugawela filed his Statement of Issues, Facts and Contentions.[178]
8. On 18 December 2024, the SAT amended the orders made on 22 October 2024.[179]
9. On 7 January 2025, the Board filed its Reply to Dr Nugawela's Statement of Issues, Facts and Contentions.[180]
10. On 4 February 2025, the SAT made orders, including listing the matter for a directions hearing.[181]
11. On 21 March 2025, the Board filed a witness statement annexing an additional document.[182]
12. Between 15 April 2025 and 28 April 2025, Clayton Utz and Dr Nugawela exchanged email correspondence about the filing of documents.[183]
13. On 1 May 2025, the Board filed correspondence addressed to the SAT requesting a directions hearing be listed to deal with a minute of proposed orders filed by the Board on the same date.[184]
14. On 2 May 2025, the SAT made orders listing the matter for a directions hearing.[185]
15. On 9 May 2025, Dr Nugawela filed an interim application seeking a stay pending the hearing of the interim application and a strike out of the 2024 Disciplinary Action (Stay Application).[186]
16. On 13 May 2025, the SAT made orders for the filing of documents and the determination of the interim application.[187]
17. On 15 May 2025, the Board filed its amended grounds and amended Statement of Issues, Facts and Contentions.[188]
18. On 19 May 2025, the SAT made orders.[189]
19. On 19 May 2025, the Board filed a Supplementary Bundle of Documents.[190]
20. On 21 May 2025, Ms Millar emailed Dr Nugawela seeking his agreement to an adjournment until a date after 1 November 2025, and attaching proposed consent orders to the same effect.[191]
21. On 22 May 2025, Clayton Utz and Dr Nugawela sent email correspondence to each other.[192]
22. On 23 May 2025, the Board filed a minute of proposed orders.[193]
23. On 26 May 2025, the Board filed correspondence addressed to the SAT requesting a directions hearing be listed to deal with the minute of proposed orders.[194]
24. On 26 May 2025, the SAT ordered that the matter be listed for a directions hearing on 10 June 2025.[195]
25. On 27 May 2025, Dr Nugawela wrote to the Board and the SAT, objecting to any amendments to the orders made on 19 May 2025. The SAT responded on the same day stating that Dr Nugawela would be given the opportunity to raise his objection during the hearing on 10 June 2025.[196]
26. On 28 May 2025, Dr Nugawela filed a certificate for enforcement of the 19 May orders.[197]
27. On 5 June 2025, the Board filed an affidavit affirmed by Ms Millar regarding the criminal proceedings cited in the reasons for Dr Nugawela's Stay Application. Further details regarding the criminal proceeding are set out at [194] - [195].[198]
28. On 6 June 2025, Dr Nugawela filed submissions.[199]
29. On 9 June 2025, Dr Nugawela emailed the SAT to advise that he would not be attending the hearing on 10 June 2025.[200]
30. On 10 June 2025, the SAT ordered that the 2024 Disciplinary Action be adjourned until 18 November 2025.[201]
31. As at the date of the hearing before me, the 2024 Disciplinary Action stands adjourned until 18 August 2026 pending the determination of the criminal proceedings to which I next refer.

1. On 10 May 2024, Dr Nugawela was charged with four offences of knowingly or recklessly holding himself out to be a registered health practitioner over the period from 16 May 2023 to 15 August 2023. AHPRA is the prosecutor.[202]
2. The trial of these charges is set to commence on 21 July 2026.

1. On 28 July 2025, AHPRA sent a letter to Dr Nugawela by email, informing him the Board was proposing to take immediate action by suspending his registration, and inviting Dr Nugawela to make a submission to the Board by 8 August 2025. [203]
2. On 31 July 2025, Dr Nugawela sent a letter addressed to AHPRA's Chief Executive Officer, requesting he intervene regarding the proposed immediate action and requesting an extension to the date for Dr Nugawela to provide a submission.[204]
3. On 8 August 2025, Dr Nugawela provided the Board and AHPRA with his submissions in response to the proposed immediate action.[205]
4. On 19 August 2025, AHPRA sent an email to Dr Nugawela informing him that the Board decided to not suspend his registration and were proposing to impose conditions on his registration, and inviting Dr Nugawela to provide submissions in response by 26 August 2025. AHPRA attached to this email a notice of decision addressed to Dr Nugawela.[206]
5. Following further correspondence, the Board granted Dr Nugawela an extension to provide his submissions in response to the notice of decision until 2 September 2025.[207]
6. On 2 September 2025, Dr Nugawela provided the Board with submissions in response to the proposed immediate action.[208]
7. On 4 September 2025, AHPRA sent an email to Dr Nugawela informing him of the Board's decision to take immediate action by imposing conditions on his registration (2025 Immediate Action Decision).[209]
8. Dr Nugawela has not challenged the 2025 Immediate Action Decision.
9. The current position is that Dr Nugawela is registered to practice medicine, but is subject to the conditions set out in the 2025 Immediate Action Decision.

1. The power of the court to make orders restricting vexatious proceedings is found in VPRA s 4(1) in the following terms:

(1) If a Court is satisfied that -

(a) a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or

(b) it is likely that the person will institute or conduct vexatious proceedings,

the Court may make either or both of the following orders -

(c) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;

(d) an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).

1. The Supreme Court is a 'Court' for the purposes of VPRA s 4(1).[210]
2. The term 'proceedings' is defined in broad terms in VPRA s 3:

(a) any cause, matter, action, suit, proceeding, trial, or inquiry of any kind within the jurisdiction of any court, including a court of summary jurisdiction, or a tribunal; and

(b) any proceedings, including interlocutory proceedings, taken in connection with or incidental to proceedings pending before a court, including a court of summary jurisdiction, or a tribunal; and

(c) an appeal from a decision or determination, whether or not a final decision or determination, of a court, including a court of summary jurisdiction, or a tribunal;

1. The phrase 'vexatious proceedings' is defined in VPRA s 3 in the following terms:

(a) which are an abuse of the process of a court or a tribunal; or

(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose; or

(c) instituted or pursued without reasonable ground; or

(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

1. In Granich Partners v Yap EM Heenan J said:[211]

This definition has the effect of characterising proceedings as vexatious if they are actively or intentionally instituted or pursued by the litigant for any of the identified or other wrongful purposes, so making the subjective intention of the litigant a material factor. However, proceedings will also be vexatious by an objective standard, if they constitute an abuse of the process of the court or are brought or pursued without a reasonable grounds or they are conducted in a manner set out in subpar (d) of the definition. Hence, proceedings may be vexatious if they have any of these objective characteristics regardless of the personal intention, motive or state of mind of the litigant.

1. The case law provides the following guidance on the application of this test:

(a) whilst it is not possible to exhaustively define what will constitute an abuse of process, at least one of three characteristics will generally be present, namely:[212]

(1) a court's processes being invoked for an illegitimate or collateral purpose;

(2) the use of a court's procedures being unjustifiably oppressive to a party; or

(3) the use of a court's procedures bringing the administration of justice into disrepute;

(b) a clear case of an abuse of process and of vexatious proceedings is where there are further or collateral attempts to challenge a final decision of a court binding on the party attempting the challenge;[213]

(c) in determining whether proceedings were instituted without a reasonable ground, it is necessary to have regard to the whole of the claim brought by a party;[214]

(d) a proceeding will not be characterised as having been made without reasonable ground merely because of errors in pleading and form, especially so where the litigant is self‑represented;[215]

(e) the judgment as to whether a proceeding was pursued without reasonable ground is a matter of degree and judgment and depends upon all of the circumstances of the case;[216] and

(f) a proceeding instituted or pursued without reasonable grounds may include claims with unintelligible pleadings, appeals from striking out pleadings, misconceived or hopeless appeals, appeals which lack any legal basis and the institution of applications or proceedings which have absolutely no prospect of success.[217]

1. The cumulative effect of the proceedings is significant:[218]

In determining whether proceedings may properly be characterised as vexatious proceedings, it is also relevant to consider the effect of the proceedings overall, particularly where the same persons have been parties to numerous different actions. The pursuit of proceedings without reasonable ground, when that conduct is repeated, may become seriously and unfairly burdensome, and the repetition of such conduct may permit an inference of wrongful purpose to more readily be drawn.

1. If the court is satisfied as to one or other of VPRA s 4(1)(a) or (b), then it 'may' make one of the orders in s 4(1)(c) or (d). That is, the court has a discretion to make a restriction order. In relation to this discretion, in Michael, Le Miere J observed:[219]

The right of an individual to commence proceedings to enforce or defend his rights is one of the fundamental rights in a free society. The rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. To limit this right represents a major restriction on the liberty of the individual for which there must be a proper and adequate justification. The effect of an order made under s 4(1)(d) of the Act does not remove the right to issue proceedings entirely. A person against whom such an order has been made still has access to the courts. However, he is required to take an additional step in the process by obtaining the permission of the court prior to any claims being issued. Nevertheless, the making of an order under s 4(1) of the Act restricts the rights of the person against whom such an order has been made and for that reason the powers conferred by the section must be exercised with caution.

At the same time, the court must have regard to the purpose of the Act. he institution or conduct of unmeritorious litigation will have an emotional and financial impact on the other parties to the litigation. Innocent parties may be dragged through the courts for a decision made at the end of a long legal road that the claim never had any legal merit in the first place. The vindicated party frequently has no practical opportunity to recoup even court assessed costs, let alone actual out of pocket costs. And there is no redress for the loss of time and the aggravation of futile legal proceedings. The Act is intended to provide protection to a person who may be the target of vexatious litigation. Furthermore, the time of the court is unreasonably occupied in dealing with vexatious litigation. Not only are the resources of the court wasted in dealing with such litigation but other more worthy litigation is delayed.

1. As mentioned, the Plaintiffs are not in the class of persons able to make an application pursuant to VPRA s 4(1) as of right. Rather, pursuant to VPRA s 4(2)(c), as 'a person against whom another person has instituted or conducted vexatious proceedings', they require the leave of the court to make the Application.
2. In Granich, EM Heenan J explained the rational for the requirement for a private litigant to obtain the leave of the court in the following terms:[220]

The requirement for leave to be obtained by a private applicant, who can be presumed to be acting in the protection of his or her own interests, is clearly to allow the court to ensure that such applications are not used as instruments of oppression or as tactical exercises between adversaries. The court will only consider the exercise of this jurisdiction if it is satisfied that there are substantial grounds for doing so and there is sufficient reason to embark on an enquiry over whether or not the procedures and opportunities of litigation are being abused, or misused, in such a way that an intolerable burden is placed upon the time, resources and procedures of the court. This is an area where relief should be given not merely because another private litigant is being inconvenienced or harassed but also because important public resources of time and attention of the court are being, or may be, diverted by inappropriate claims, to the disadvantage not only of the court but to other litigants whose causes may be delayed by the time needed to deal with vexatious proceedings.

1. In Kezic, after referring to these principles, Pritchard J added:[221]

The requirement for a private litigant to obtain leave will be satisfied if it is shown that the applicant is seeking relief under the VPR Act primarily for the alleviation of an unjustifiable or exceptional burden which the alleged vexatious proceedings have caused. Leave will not be granted if the application is merely an additional means by which the applicant may avoid having to respond to litigation brought by a person seeking to obtain relief at law from some real or imagined wrong, even if it should turn out that that litigation will probably fail. In other words, relief under the VPR Act is not a remedy intended to achieve a stay or to prevent the institution of the ordinary run of litigation. Rather, it is an extreme remedy reserved for instances where quite hopeless claims are brought, or persisted with, to a degree which causes substantial disruption for the target of the claims and for the administration of justice..

Under s 4(1) of the VPR Act, the Court has the power to order that all or any proceedings instituted by a vexatious litigant be stayed, or that that person be prohibited from instituting all or a class of the proceedings in the future. However, when relief is sought by a private applicant, the Court should tailor that relief to the protection of the applicant, or of persons or bodies closely associated with the applicant, who are prejudiced, or likely to be prejudiced, by the unrestrained litigious activity of the vexatious litigant. As a result, orders made by the Court will be directed to staying or prohibiting proceedings by the vexatious litigant against that particular applicant, rather than to staying or prohibiting any proceedings whatever...

1. In the Nugawela Affidavit, Dr Nugawela made the following points:

(a) matters affecting his registration and ability to practice have been of fundamental importance to his livelihood and professional standing;

(b) each proceeding he commenced was directed to challenging, reviewing, staying or responding to a specific regulatory decision which directly affected his ability to practice;

(c) he did not commence any of the proceedings for the purpose of harassing or annoying the Plaintiffs, nor to cause delay or detriment, nor for any other improper purpose;

(d) rather, the proceedings were commenced for the purpose of preserving his registration, protecting his right to practice and seeking clarification or correction of decision affecting him;

(e) in several instances, proceedings were commenced because regulatory decisions were made on an urgent basis, leaving limited time to obtain advice or prepare materials;

(f) some proceedings were withdrawn or discontinued after circumstances changed, including where regulatory decisions were overtaken, stayed, reversed or rendered moot;

(g) any errors he made as a self-represented litigation were not intentional and were not made in disregard of court processes or directions;

(h) rather, he complied with the orders and directions of the courts and tribunals to the best of his ability, subject to his understanding and circumstances at the time;

(i) his litigation history must be understood in the context of the regulatory history described in the Plaintiffs' affidavits involved multiple stages, reversals and renewed actions, which required repeated responses;

(j) he did not intend to commence proceedings without a jurisdictional basis; and

(k) he did not intend to pursue proceedings that were frivolous, abusive or lacking in substance.

1. Dr Nugawela goes on to say that any future proceedings against the Plaintiffs would only be commenced if a fresh regulatory decision was made affecting his registration and a statutory right of review of appeal arises. If an order was made, it would have practical consequences for his ability to respond promptly to regulatory decisions. He adds that he has not commenced any proceedings against the Plaintiffs after 2023.[222] That is not correct as the Twelfth Application was commenced in January 2025.
2. Dr Nugawela's oral submissions focussed on his concerns about the approach taken by the Plaintiffs' generally in the exercise of their supervisory powers over his right to practice. That is not a matter germane to these issues which I am required to determine.

1. Each of the 12 applications relied on by the Plaintiffs is a 'proceeding' for the purposes of VPRA s4(1).
2. As to whether any of the 12 applications were 'vexatious proceedings', the First Application was ultimately withdrawn, but after the Board renewed Dr Nugawela's registration as a medical practitioner. I would not characterise it as a vexatious proceeding.
3. The Second Application was dismissed on the basis that it was misconceived. Given the observations of the President which I have quoted at [27], the Second Application may readily be characterised as being instituted or pursued without reasonable grounds, and thus a vexatious proceeding.
4. The Third Application, the Fourth Application, the Seventh Application and Eighth Application were each dismissed by the Court of Appeal. In each case, the reasons given by the Court of Appeal were to the effect that there were no reasonably grounds of appeal. Each may thus readily be characterised as being instituted without reasonable grounds, and thus a vexatious proceeding.
5. The Fifth Application was dismissed on the basis that it was misconceived. However, this was after the Board revoked the First Immediate Action Decision, which was the subject of the Fifth Application. The Plaintiffs did not contend that the Fifth Application was a vexatious proceeding. I agree.
6. The Sixth Application was determined by the Supreme Court on its merits. On four of the five grounds, Dr Nugawela was not granted leave to appeal. These grounds are appropriately characterised as being instituted or pursued without reasonable grounds. On the ground for which leave was granted, it was not made out. The Plaintiffs did not contend that the Sixth Application was a vexatious proceeding. I agree. As leave to appeal was granted on one ground, I do not find that the Sixth Application was instituted without reasonable grounds.
7. The Ninth Application was dismissed after Dr Nugawela sought to withdraw it. Given that it sought to challenge a decision that was not in fact made, I would characterise the Ninth Application as having been instituted without reasonable grounds, and thus a vexatious proceeding.
8. As to the Tenth Application, three of the five claims were struck out in the Tenth Application April Decision. Two of these were after a positive finding that the claim constituted an abuse of process. The Plaintiffs contend that this is sufficient for the action to be characterised as being vexatious. However, the remaining two grounds were not struck out summarily, but were determined on the merits and dismissed. Because of this, I do not find that the Tenth Application was instituted without reasonable grounds (though see my observations at [239]).
9. The Eleventh Application was also withdrawn by Dr Nugawela and dismissed. Given this and the comments made by the President in dismissing the stay application ([130]), I would characterise the Eleventh Application as having been instituted without reasonable grounds.
10. The Twelfth Application may also readily be characterised as having been commenced without reasonable grounds.
11. In summary, of the purposes of VPRA s 4(1)(a) I am satisfied that eight of the twelve applications identified were vexatious proceedings. This is an ample basis to enliven the discretion in VPRA s 4(1)(d).
12. For these reasons, I am satisfied that Dr Nugawela has instituted or conducted vexatious proceedings for the purposes if VPRA s 4(1)(a).
13. I am also satisfied that it is likely that Dr Nugawela will, in the future, institute or conduct vexatious proceedings for the purposes of VPRA s 4(1)(b). In relation this basis, I agree with the observations of EM Heenan J in Granich:[223]

A private applicant under s 4(2)(c)(i) of the Act who has proved that vexatious proceedings have been commenced against him or her by the respondent in the past has a strong claim to relief, even though the relief is discretionary. The relief can be granted in a manner tailored to protect that individual's own interests. Much will depend on the facts established by the evidence in each particular application but where, as in the present case, the evidence discloses a course of litigation brought over a period of many years and in many different causes, even though related, it seems proper for the court to infer that the past conduct of the respondent is an indication of probable future conduct and so justifies some restraining measure suitable for the individual case.

1. Dr Nugawela remains a medical practitioner subject to the regulatory oversight of the Plaintiffs. He is currently subject to the 2024 Disciplinary Action and the 2025 Immediate Action Decision. I regard his past litigation history as a strong predictor of his likely future behaviour.
2. In coming to these conclusions, there is ample evidence on the basis of the objective characterisations of the proceedings. I do not need to make any findings based on the subjective intent of Dr Nugawela.
3. The findings in [230] and [231] enliven the discretion to make orders of the kind set out in VPRA s 4(1)(c) and/ or (d). No order is sought pursuant to VPRA s 4(1)(c) in relation to existing proceedings. Rather, the order sought by the Plaintiffs is pursuant to VPRA s 4(1)(d), being an order prohibiting Dr Nugawela from instituting proceedings of a particular class, without the leave of a court or tribunal.
4. The Plaintiffs have followed the advice of both EM Heenan J in Granich (quoted at [231]) and Prichard J in Kezic (quoted at [215]) to tailor the relief sought. Following discussions with counsel for the Plaintiffs at the hearing, the order sought by the Plaintiffs is now (without revision marks) (Revised Order):

An order pursuant to section 4(1)(d) of the Act prohibiting the Defendant from instituting in the Supreme Court of Western Australia, or the Court of Appeal, without the leave of the Court, any appeal or judicial review of a decision, whether interlocutory or final in nature, of any court or tribunal exercising jurisdiction in Western Australia, save as to Magistrates Court Proceedings PE 27405-27408, in which appeal or judicial review proceedings either Plaintiff (and in respect of the First Plaintiff, the Plaintiff's committee known as the Western Australia Board of the Medical Board of Australia) is the responding party...

1. Counsel for the Plaintiffs explained that they do not seek to restrict the ability of Dr Nugawela to make 'first order' challenges. So the Revised Order is crafted to impose no barrier on Dr Nugawela exercising his rights of appeal to the SAT pursuant to National Law s 199. Rather, the restriction sought is to 'second order' challenges, that is, challenges from decisions of the SAT to the Supreme Court or Court of Appeal. By parity of reasoning the current criminal proceedings in the Magistrates Court are carved out of the restriction. This has the effect that there is no barrier to Dr Nugawela commencing an appeal from the decision of the Magistrates Court pursuant to Criminal Appeals Act 2004 (WA) div 2.
2. There are five factors which make it appropriate to exercise the discretion in the terms sought by the Plaintiffs and make the Revised Order.
3. The first is the number of proceedings over since September 2019. Dr Nugawela was entitled to defend the applications brought against him by the Plaintiffs in the SAT. However, he sought to use the SAT and the Supreme Court to mount collateral challenges to the actions of the Plaintiffs. The pursuit of so many collateral challenges without any reasonable basis is, in my assessment, seriously and unfairly burdensome to the Plaintiffs. Each Plaintiff is a public institution responsible for the regulation of medical practitioners. Public institutions have limited resources. Their limited resources should not continue to be expended dealing with further vexatious proceedings brought by Dr Nugawela. The cumulative effect of the multiple proceedings is significant. This prejudice is exacerbated by the fact that the Plaintiffs have multiple outstanding costs orders against the Dr Nugawela.[224] As he is an undischarged bankrupt, there appears to be little or no prospect of any of these costs being recovered.
4. The second is the number of those proceedings which were vexatious, eight of the twelve. In addition, although the Sixth Application and the Tenth Application were determined on their merits, in each case there were multiple claims which had no reasonable basis or were an abuse. These claims caused unwarranted expense to the Plaintiffs and wasted the time of the court. The claims were which given leave were dismissed. The public resources of the Plaintiffs should not be wasted on repeatedly dealing with applications by Dr Nugawela which do not have any merit. Nor should the time and attention the Supreme Court be wasted on such applications in the future, delaying the determination of other more worthy litigation.
5. The third is that the four Court of Appeal proceedings were characterised by delay and serial non-compliance by Dr Nugawela with the procedures of the Court of Appeal.
6. The fourth is that there was a pattern of Dr Nugawela making multiple applications in relation to the same decision. In the Second Application, Dr Nugawela sought an order reinstating the First Application which he had withdrawn some 15 months earlier. In both the Third Application and the Fourth Application he sought to challenge the Second Application in the Court of Appeal. In the Sixth Application he sought to set aside the orders he had consented to in the SAT on 8 September 2022. In both the Tenth Application (Supreme Court) and Eleventh Application (SAT) he sought to challenge the Second Immediate Action Decision. In the Tenth Application he again sought to challenge the orders he agreed to in the SAT on 8 September 2022. In the Twelfth Application he sought to open the decision on the Tenth Application.
7. The fifth is that, as I have noted [232], Dr Nugawela remains under the regulatory oversight of the Plaintiffs. Based on Dr Nugawela's past conduct, in my view, it is likely that he will institute further collateral challenges or appeals against one, other or both the Plaintiffs which will turn out to be vexatious.
8. The fact that Dr Nugawela is a litigant in person does not undermine the conclusion that a restriction order is required. I accept the point he makes in his written submissions that the definition of 'vexatious proceedings' requires 'something more than error, persistence, or lack of legal skill, particularly in the case of a self-represented litigant'.[225] However, his conduct over the history of the litigation which I have described goes well beyond any latitude that may be appropriately afforded to a litigant in person. In particular, his serial non‑compliance with the very clear directions of the Court of Appeal in the four appeals which he commenced cannot be explained merely by the fact that he was a litigant in person. The appeals were each conducted in a manner so as to cause delay.
9. Dr Nugawela refers to the decision in Jones v Skyring[226] for the proposition that the 'High Court has cautioned against equating persistence with vexatiousness'.[227] I do not discern this proposition from the decision of Toohey J.[228] It was not Mr Skyring's persistence that caused Toohey J to make a restriction order. Rather, it was the fact that his applications were made 'frequently and without reasonable ground' and sought to re-agitate questions already determined, which lead to the proceedings being characterised as vexatious. [229] In the present case, there is also a pattern of Dr Nugawela making multiple applications in relation to the same decision.
10. I also accept the point made by Dr Nugawela that a lack of success does not of itself establish vexatiousness.[230] Hence, I have drawn a distinction between those matters on which he obtained leave, but failed on the merits (see [224] and [226]), and those matters on which he did not obtain leave or where the ground was struck out. The point remains that virtually all the claims made in this Court and the Court of Appeal lacked a reasonable foundation.
11. Dr Nugawela argues that the orders sought by the Plaintiffs are disproportionate. He says that the practical effect of the order would be to impose a standing procedural barrier on his ability to invoke supervisory jurisdiction on matters affecting his registration, conditions of practice and livelihood. [231]
12. I accept that the making of an order under VPRA s 4(1) restricts the rights of Dr Nugawela and for that reason the powers conferred by the section must be exercised with caution.[232] Even with that caution, I am readily satisfied that it is appropriate to make the order sought. The Revised Order does not require Dr Nugawela to obtain leave to defend proceedings commenced against him in the SAT. Nor does it require him to obtain leave to appeal a decision of one of the Plaintiffs to the SAT. It only operates in relation to appeals to this Court or the Court of Appeal. The requirement that he obtain leave before commencing such a 'second order' appeal ensures that the resources of both the Plaintiffs and the court are not wasted in dealing with yet more vexatious applications by Dr Nugawela. Leave will only be granted if there is a prima facie ground for the proceeding and it is not vexatious.[233] Moreover, an order granting leave can limit the scope of the proceeding which Dr Nugawela seeks to commence to those grounds for which there is a prima facie case. In other words, if the proposed appeal has a prima facie ground and is not vexatious, Dr Nugawela could expect to be given leave to commence it. But not otherwise.
13. In coming to this conclusion, I have borne in mind that Dr Nugawela would in any event require leave to commence an appeal to the Supreme Court from a decision made in the SAT. Whether the appeal is to the Court of Appeal (for decisions of a judicial member) or the General (for other decisions), leave to appeal is required pursuant to State Administrative Tribunal Act 2004 (WA) s 105(1). I have set out the chronology in relation to the progress of four appeals to the Court of Appeal and three appeals to the General Division. Aside from the Twelfth Application, it is readily apparent that it took some months and a number of hearings before the court was in a position to deal with the issue of leave (whether directly or indirectly). An order in terms of the Revised Order would require the issue of whether the proposed appeal was vexatious to be addressed prior to the commencement of the appeal. This is likely to save the resources of both the Plaintiffs and the Supreme Court.
14. Along similar lines, Dr Nugawela submits that if he did commence a vexatious proceeding in the future, the 'Court and tribunal system already has orthodox tools to deal with proceedings that are misconceived or abusive when (and if) they arise, including summary dismissal, struck out and case management directions'.[234] Whilst this may be accepted as a point of principle, there are limits. On multiple occasions now, the Supreme Court has resorted to these 'orthodox tools' to deal with proceedings commenced by Dr Nugawela. However, each time this occurs, the resources of the Court are wasted dealing with claims which ought not to have been commenced. The point has been reached where it is necessary to use another tool to manage future proceedings which Dr Nugawela may commence, at least in the Supreme Court.
15. Given my findings so far, I am also readily satisfied that the Plaintiffs should be given leave to bring the Application. In no way can it be said that the Application is being used as an instrument of oppression or in some tactical manner. Nor can it be said that the Plaintiffs are seeking to avoid having to respond to litigation which ought properly to be determined on its merits in the usual way. Rather, the Application is being brought to ensure that the Plaintiffs' resources do not continue to be wasted on hopeless applications. The scope of the order sought is appropriately limited to 'second order' challenges.
16. The appropriate final orders are:
    1. The Plaintiffs have leave to make this application pursuant to Vexatious Proceedings Restriction Act 2002 (WA) (VPRA) s 4(2)(c).
    2. Pursuant to VPRA s 4(1)(d), the defendant is prohibited from instituting in the Supreme Court of Western Australia, whether the Court of Appeal or General Division, without the leave of the court, any appeal or judicial review of a decision, whether interlocutory or final in nature, of any court or tribunal exercising jurisdiction in Western Australia, save as to Magistrates Court Proceedings PE 27405-27408, in which appeal or judicial review proceedings either Plaintiff (and in respect of the First Plaintiff, the Plaintiff's committee known as the Western Australia Board of the Medical Board of Australia) is the responding party.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] First Millar Affidavit, par 7 (defined below).

[4] First Millar Affidavit, par 142, attachment JM-135.

[6] First Millar Affidavit, pars 12 - 13, attachment JM-1.

[7] First Millar Affidavit, par 14, attachment JM-2.

[9] First Millar Affidavit, par 15, attachment JM-3.

[10] First Millar Affidavit, par 16, attachment JM-4.

[11] First Millar Affidavit, par 17, attachment JM-5.

[13] First Millar Affidavit, par 18, attachment JM-6.

[14] First Millar Affidavit, par 19, attachment JM-7.

[16] First Millar Affidavit, pages 175 - 177.

[17] First Millar Affidavit, par 21, attachment JM-8.

[18] First Millar Affidavit, par 22, attachment JM-9.

[22] Nugawela and Medical Board of Australia [2021] WASAT 147 [4].

[23]Nugawela and Medical Board of Australia [2021] WASAT 147 [12] - [13], [17] - [19].

[24] First Millar Affidavit, par 24, attachment JM-11.

[25] First Millar Affidavit, par 25, attachment JM-12

[26] First Millar Affidavit, par 26, attachment JM-13.

[27] First Millar Affidavit, par 27, attachment JM-14.

[29] First Millar Affidavit, par 29, attachment JM-15.

[30] First Millar Affidavit, pars 30 - 31, attachments JM-16 and JM-17.

[31] First Millar Affidavit, par 32, attachment JM-18.

[33] First Millar Affidavit, par 34, attachment JM-19.

[35] First Millar Affidavit, par 36, attachment JM-20.

[36] First Millar Affidavit, par 37, attachment JM-21.

[37] First Millar Affidavit, par 38, attachments JM-22 and JM-23.

[38] Nugawela v Medical Board of Australia (WA Board) [2022] WASCA 156 [24].

[39] Nugawela v Medical Board of Australia (WA Board) [2022] WASCA 156 [26] - [28].

[40] First Millar Affidavit, par 39, attachments JM-24 and JM-25.

[42] First Millar Affidavit, par 41, attachments JM-26 and JM-27.

[43] First Millar Affidavit, par 42, attachment JM-28.

[44] First Millar Affidavit, par 43, attachment JM-29.

[46] First Millar Affidavit, par 45, attachment JM-30.

[47] First Millar Affidavit, par 46, attachment JM-31.

[49] First Millar Affidavit, par 47, attachments JM-32 and JM-33.

[50] Nugawela v Australian Health Practitioner Agency [2023] WASCA 37 [13] - [14].

[51] Directions hearing, 25 November 2022, ts 13 - 14.

[52] Sections 105(2) and (13) of the State Administrative Tribunal Act 2004 (WA).

[53] First Millar Affidavit, par 51, attachment JM-37.

[54] First Millar Affidavit, par 52, attachments JM-38 and JM-39.

[55] First Millar Affidavit, par 53, attachment JM-40.

[56] First Millar Affidavit, par 54, attachment JM-41.

[58] First Millar Affidavit, par 55, attachment JM-42.

[60] Fist Millar Affidavit, par 57, attachment JM-44.

[61] Fist Millar Affidavit, par 58, attachment JM-45.

[62] Fist Millar Affidavit, par 59, attachments JM-46 and JM-47.

[64] First Millar Affidavit, par 61, attachment JM-49.

[65] First Millar Affidavit, par 62, attachment JM-50.

[67] First Millar Affidavit, par 63, attachment JM-51.

[68] First Millar Affidavit, par 65, attachment JM-53.

[69] First Millar Affidavit, par 64, attachment JM-52.

[70] First Millar Affidavit, par 66, attachment JM-54.

[71] First Millar Affidavit, par 67, attachment JM-55.

[72] First Millar Affidavit, par 68, attachment JM-56 and JM-57.

[73] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2022] WASC 385 [25] (Nugawela J).

[74] First Millar Affidavit, par 69, attachment JM-58.

[76] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [122].

[77] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [123] - [125].

[78] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [114].

[79] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [129] - [131], [135].

[80] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [140], [141], [147].

[81] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [155], [156] (references omitted).

[82] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [168].

[83] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [169].

[84] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [171] - [173].

[85] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [6].

[86] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [184].

[87] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [200].

[88] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [204].

[89] Nugawela v Medical Board of Australia (WA Branch) [No 2] [2024] WASC 15 [204].

[90] First Millar Affidavit, par 71, attachments JM-60, JM-61 and JM 62.

[91] First Millar Affidavit, par 72, attachment JM-63.

[93] First Millar Affidavit, par 74, attachment JM-64.

[95] First Millar Affidavit, par 76, attachment JM-65.

[96] First Millar Affidavit, par 77, attachments JM-66, JM-67, JM-68.

[97] First Millar Affidavit, par 78, attachments JM-69 and JM-70.

[98] Nugawela v Medical Board of Australia [2023] WASCA 92 [22] - [24] (references omitted).

[99] Nugawela v Medical Board of Australia [2023] WASCA 92 [31], [32].

1. [100] Nugawela v Medical Board of Australia [2023] WASCA 92 [51], [60], [61], [65].

[101] Nugawela v Medical Board of Australia [2023] WASCA 92 [66] to [70] (reference omitted).

[102] First Millar Affidavit, par 79, attachment JM-71.

[104] First Millar Affidavit, par 81, attachment JM-72.

[105] First Millar Affidavit, par 82, attachments JM-73 and JM-74.

[106] First Millar Affidavit, par 84, attachment JM-75.

[108] First Millar Affidavit, par 86, attachment JM-76.

[109] First Millar Affidavit, par 87, attachments JM-77, JM-78, JM-79.

[110] First Millar Affidavit, par 88, attachment JM-80.

[111] First Millar Affidavit, par 89, attachments JM-81, JM-82.

[112] First Millar Affidavit, par 90, attachments JM-83 and JM-84.

[113] Nugawela v Medical Board of Australia (WA Branch) [2024] WASCA 101 [30] - [31].

[114] Nugawela v Medical Board of Australia (WA Branch) [2024] WASCA 101 [33] - [35], [42] - [44] (reference omitted).

[116] First Miller Affidavit, par 91(b), attachment JM-85.

[117] First Miller Affidavit, par 91(c), attachment JM-86.

[118] First Miller Affidavit, par 91(d), attachment JM-87.

[119] First Miller Affidavit, par 92, attachment JM-88.

[120] First Miller Affidavit, par 93, attachment JM-89.

[121] First Miller Affidavit, par 94, attachment JM-90.

[122] First Miller Affidavit, par 95, attachment JM-91.

[123] First Millar Affidavit, pars 96, 108.

[124] First Miller Affidavit, par 97, attachment JM-92.

[125] First Miller Affidavit, par 98, attachment JM-93.

[126] First Millar Affidavit, par 99, attachment JM-94.

[127] First Millar Affidavit, par 100, attachment JM-95.

[128] First Millar Affidavit, par 101, attachment JM-96.

[129] First Millar Affidavit, par 102, attachment JM-97, JM-98 and JM-99.

[130] First Millar Affidavit, par 103, attachment JM-100.

[131] First Millar Affidavit, par 104, attachment JM-101.

[132] First Millar Affidavit, par 105, attachment JM-102.

[133] First Millar Affidavit, par 106, attachment JM-103.

[134] First Millar Affidavit, par 107, attachment JM-104.

[135] First Millar Affidavit, par 124, attachment JM-119.

[136] First Millar Affidavit, par 125, attachment JM-120.

[137] First Millar Affidavit, par 126, attachment JM-121.

[138] First Millar Affidavit, par 127.

[139] First Millar Affidavit, par 128, attachments JM-122 and JM-123.

[140] Nugawela v Medical Board of Australia [2023] WASAT 82 [82] - [85].

[141] Nugawela v Medical Board of Australia [2023] WASAT 82 [82] - [85] (reference omitted).

[142] First Millar Affidavit, par 129, attachment JM-124.

[143] First Millar Affidavit, par 130, attachment JM-125.

[144] First Millar Affidavit, par 131, attachment JM-126.

[145] First Millar Affidavit, par 132, attachment JM-127.

[146] First Millar Affidavit, par 133, attachments JM-128 and JM-129.

[147] First Millar Affidavit, par 134.

[148] First Millar Affidavit, par 135, attachment JM-130.

[149] First Millar Affidavit, par 136, attachment JM-131.

[150] First Millar Affidavit, par 137, attachment JM-132.

[151] First Millar Affidavit, par 110, attachment JM-107.

[152] First Millar Affidavit, par 111, attachment JM-108.

[153] First Millar Affidavit, par 112, attachment JM-109.

[154] First Millar Affidavit, par 113, attachment JM-110.

[155] First Millar Affidavit, par 114, attachment JM-111.

[156] First Millar Affidavit, par 115, attachment JM-112.

[157] First Millar Affidavit, par 116, attachment JM-113.

[158] First Miller Affidavit, par 117, attachment JM-114.

[159] First Millar Affidavit, par 118.

[160] Nugawela v Medical Board of WA [2024] WASC 100 [5].

[161] Nugawela v Medical Board of WA [2024] WASC 100 [21].

[162] Nugawela v Medical Board of WA [2024] WASC 100 [48] - [57].

[163] Nugawela v Medical Board of WA [2024] WASC 100 [72] - [77].

[164] Nugawela v Medical Board of WA [2024] WASC 100 [59] - [61].

[165] Nugawela v Medical Board of WA [2024] WASC 100 [63] - [68].

[166] Nugawela v Medical Board of WA [2024] WASC 100 [63] - [68].

[167] Nugawela v Medical Board of WA [No 2] [2024] WASC 496 [2].

[168] Nugawela v Medical Board of WA [No 2] [2024] WASC 496 [91].

[169] First Millar Affidavit, par 138, attachment JM-133.

[170] First Millar Affidavit, pages 3439 - 3440.

[171] First Millar Affidavit, par 139, attachment JM-134.

[172] Second Millar Affidavit, par 7, attachments JM-136, JM-137 and JM-138.

[173] Second Millar Affidavit, par 8, attachment JM-139.

[174] Second Millar Affidavit, par 9, attachment JM-140.

[175] Second Millar Affidavit, par 10, attachment JM-141.

[176] Second Millar Affidavit, par 11, attachment JM-142.

[177] Second Millar Affidavit, par 12, attachments JM-143 and JM-144.

[178] Second Millar Affidavit, par 13, attachment JM-145.

[179] Second Millar Affidavit, par 14, attachment JM-146.

[180] Second Millar Affidavit, par 15, attachment JM-147.

[181] Second Millar Affidavit, par 16, attachments JM-148 and JM-149.

[182] Second Millar Affidavit, par 17.

[183] Second Millar Affidavit, par 18, attachments JM-150 and JM-151.

[184] Second Millar Affidavit, par 19, attachments JM-152 and JM-153.

[185] Second Millar Affidavit, par 20, attachment JM-154.

[186] Second Millar Affidavit, par 21, attachment JM-155.

[187] Second Millar Affidavit, par 22, attachment JM-156.

[188] Second Millar Affidavit, par 23, attachments JM-157 and JM-158.

[189] Second Millar Affidavit, par 24, attachment JM-159.

[190] Second Millar Affidavit, par 25, attachment JM-160.

[191] Second Millar Affidavit, par 26, attachment JM-161.

[192] Second Millar Affidavit, par 27, attachment JM-162.

[193] Second Millar Affidavit, par 28, attachment JM-163.

[194] Second Millar Affidavit, par 29, attachment JM-164.

[195] Second Millar Affidavit, par 30, attachment JM-165.

[196] Second Millar Affidavit, par 31, attachment JM-166.

[197] Second Millar Affidavit, par 32, attachment JM-167.

[198] Second Millar Affidavit, par 33.

[199] Second Millar Affidavit, par 34, attachment JM-168.

[200] Second Millar Affidavit, par 35, attachment JM-169.

[201] Second Millar Affidavit, par 36, attachment JM-170.

[202] Second Millar Affidavit, par 38, attachments JM-171, JM-172.

[203] Second Millar Affidavit, par 43.

[204] Second Millar Affidavit, par 44, attachment JM-177.

[205] Second Millar Affidavit, par 45, attachment JM-178.

[206] Second Millar Affidavit, par 46, attachments JM-179 and JM-180.

[207] Second Millar Affidavit, par 47.

[208] Second Millar Affidavit, par 48, attachment JM-183.

[209] Second Millar Affidavit, par 49, attachments JM-181, JM-182, JM-183, JM-184, JM-185 and JM-186.

[210] VPRA s 3.

[211] Granich Partners v Yap [2003] WASC 206 [28] (EM Heenan J) (Granich). Cited in St John of God Health Care Inc v Kezic [No 2] [2017] WASC 265 [33] (Pritchard J) (Kezic).

[212] Attorney General (WA) v Lashansky [No 2] [2015] WASC 417 [27] (Allanson J) (Lashansky); Mann v Bankwest - a Division of Commonwealth Bank of Australia [2020] WASCA 35 [56].

[213] Granich [46]; Lashansky [27]; Shire of Katanning v Bride [No 2] [2016] WASC 314 [20] - [21] (Tottle J) (Bride).

[215] Kezic [36]; Attorney General v Michael [2005] WASC 203 [55] (Le Miere J) (Michael).

[217] Commonwealth Bank of Australia v Bride [2004] WASC 177 [127] (EM Heenan J).

[218] Kezic [35]. See also: Lashansky [24], [37].

[219] Michael [143] - [144], cited with approval in: Nursing and Midwifery Board of Australia v H [2017] WASC 20 [48] (Banks-Smith J) (Nursing Board); Bride [73].

[220] Granich [31]. See also: Kezic [37] - [38].

[221] Kezic [39] - [40] (references omitted).

[223] Granich [41]; Nursing Board [46].

[224] First Millar Affidavit, par 140.

[225] Defendant's Submissions, par 12.

[226] Jones v Skyring [1992] HCA 39; (1992) 66 ALJR 810 (Jones).

[227] Defendant's Submissions, par 20.

[230] Defendant's Submissions, par 20.

[231] Defendant's Submissions, pars 58 - 63.

[233] VPRA s 6(5).

[234] Defendant's Submissions, pars 67 - 69.