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[2017] WASCA 64
Court of Appeal (WA)
2017-04-11
Newnes JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : MEDICAL BOARD OF AUSTRALIA -v- WOOLLARD [2017] WASCA 64
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Citation : MEDICAL BOARD OF AUSTRALIA and WOOLLARD [2016] WASAT 26
Appeal from State Administrative Tribunal in disciplinary proceedings - Appeal on a question of law only - Whether there was any evidence upon which to find or to infer that certain complaints against the respondent medical practitioner constituted an abuse of process - Whether open to infer unreasonable or undue delay in bringing the claims - Whether open to infer that respondent was prejudiced by the delay - Double jeopardy - Public interest
Professional regulation - Health profession - Discipline - Health Practitioner Regulation National Law - Fitness to practise - Cardiologist - Angioplasty
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132
BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221
Commissioner for Consumer Protection v Carey [2014] WASCA 7
Edge Visionary Living Pty Ltd v Nairn [2016] WASCA 211
El Bayeh v The Queen [2011] VSCA 44; (2011) 31 VR 305
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334; (2015) 90 NSWLR 595
Gill v Walton (1991) 25 NSWLR 190
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Health Care Complaints Commission v Do [2014] NSWCA 307
Herron v McGregor (1986) 6 NSWLR 246
House v The King [1936] HCA 33; (1936) 55 CLR 499
Jago v District Court of New South Wales (1988) 12 NSWLR 558
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Medical Board of Australia and Woollard [2012] WASAT 209
Medical Board of Australia and Woollard [2013] WASAT 101
Medical Board of Australia v Woollard [2016] WASAT 26
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
New York Properties Pty Ltd v Federal Commissioner of Taxation [1985] FCA 304; (1985) 61 ALR 345
Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
R v Edwards [2009] HCA 20; (2009) 83 ALJR 717
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 1521; (1995) 59 FCR 6
Smith v Bank of Western Australia Ltd [2010] WASCA 15
Subramaniam v The Queen [2004] HCA 51; (2004) 79 ALJR 116
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
TS v R [2014] NSWCCA 174
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Woollard v Medical Board of Australia (sitting as a performance and Professional Standards Panel) [2016] WASCA 151
1 NEWNES & MURPHY JJA: This is an appeal, for which leave is required, against the decision of the State Administrative Tribunal (Tribunal) in Medical Board of Australia and Woollard (primary decision).[1] By that decision, Curthoys J dismissed certain claims in proceedings brought by the appellant, Medical Board of Australia (Board), against the respondent, Dr Woollard, under the Health Practitioner Regulation National Law (WA) Act 2010 (National Law Act).[2] The proceedings concerned an incident where a patient (Patient B) had died as a result of cardiogenic shock on 16 December 2005 following an angioplasty procedure performed by Dr Woollard on 15 December 2005.[3] The Board alleged professional misconduct, unprofessional conduct or unsatisfactory professional performance on the part of Dr Woollard.
2 Dr Woollard contended that the proceedings should be dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) as an alleged abuse of process. Justice Curthoys did not dismiss the proceedings in their entirety, but dismissed certain elements of the Board's case against Dr Woollard, including an element found to be relevant to his fitness to practise.[4] The two elements which Curthoys J dismissed as an abuse of process are later described in these reasons as the 'False Representation Claim' and the 'Inadequate Training Claim'.
3 The Board appeals to this court against the Tribunal's dismissal of the relevant claims. An appeal lies only on a question of law: s 105(2) of the SAT Act. Leave is required: s 105(1) of the SAT Act.
4 Between 2005 and 2009, Dr Woollard carried out a series of coronary angioplasty procedures that were subsequently investigated by the Board. These included procedures performed on:
5 A summary of the relevant history of the complaints, as appears from the Tribunal's reasons, is set out in the table below.
The complaint and investigation into the complaint in respect of Patient B
6 The judge made the following findings of primary fact of the events leading up to the commencement of the proceedings in the Tribunal on 19 December 2014.
7 Dr Woollard performed a procedure on Patient B on 15 December 2005 at the Mount Hospital in Perth. During that procedure, Dr Woollard attempted to position a guide wire across a lesion in Patient B's left anterior descending coronary artery and, in doing so, dissected that artery. Dr Alvarez, a cardiothoracic surgeon, had to perform emergency coronary surgery to repair the artery.[6]
8 On 16 December 2005, Patient B died as a result of cardiogenic shock.[7]
11 On 1 June 2012, the Board and/or the Regulation Agency wrote to Dr Woollard in relation to the notification of complaints in respect of Patients S, M, C and H, and the notification by the widow of Patient B, and gave notice of proposed immediate action under s 155 to s 157 of the National Law Act.[12]
12 On 11 June 2012, Dr Woollard's solicitors responded on his behalf and noted that a number of the matters concerning Dr Woollard's patients were before the Tribunal.[13]
13 On 29 June 2012, the Regulation Agency wrote to Dr Woollard's solicitors requesting that Dr Woollard provide to its investigator any further submissions relating to the widow's complaint and any documents in relation to Patient B.[14]
14 On 3 July 2012, Dr Woollard's solicitors sent the Regulation Agency Dr Woollard's clinical notes in relation to Patient B.[15]
15 On 13 August 2012, the Regulation Agency sent a letter to Dr Hockings, who assisted Dr Woollard immediately after Patient B's coronary artery was dissected, seeking copies of all relevant documents and a summary of his involvement with Patient B during the procedure on 15 December 2005.[16]
16 On 15 August 2012, the Regulation Agency sent a letter to the Coroner's Court seeking a copy of the Coroner's report and findings in relation to Patient B, and copies of all correspondence between the Coroner's Court and the widow in relation to Patient B.[17]
17 On 30 August 2012, the Regulation Agency received a letter and documents from Dr Hockings in response to its letter on 13 August 2012.[18]
18 On 1 November 2012, the Regulation Agency's investigator sent notices to several potential witnesses, including Ms Knowles, Ms Collins and Dr Alvarez, requesting information in relation to Patient B.[19]
19 On 5 November 2012, the investigator spoke with Ms Knowles and received an email from Ms Collins.[20]
20 Between 23 November 2012 and 3 December 2012, the investigator received an email and a letter from Dr Alvarez.[21]
21 On 15 January 2013, the Board considered Patient B's case and decided to seek an opinion from Dr Clugston (a cardiologist) who had given evidence in the case of Patient S.[22]
23 On 6 May 2013, the investigator sent an email to Dr Clugston asking if he could let her know when he would be in a position to provide his report. Dr Clugston replied that day, advising the investigator that he would need copies of the discs pertaining to Patient B's procedure.[25]
24 On 9 May 2013, the investigator wrote to the Director of Clinical Services at the Mount Hospital asking for the discs requested by Dr Clugston.[26]
25 On 30 May 2013, the Regulation Agency sent a letter to Dr Clugston enclosing the requested discs.[27]
26 On 31 May 2013, the Regulation Agency sent a letter to Dr Woollard's solicitors, notifying them of the decision to refer Dr Woollard to a performance and professional standards panel (Panel).[28]
27 On 4 June 2013, Dr Woollard's solicitors responded to the letter sent on 31 May 2013, asking why the matter had been referred when Dr Woollard had agreed that he would no longer perform stenting procedures for a period of at least five years.[29]
28 On 26 July 2013, Dr Woollard's solicitors emailed the Regulation Agency, asking the Board to reconsider its decision to bring Dr Woollard before the Panel given the outcome of the Tribunal's orders in relation to Patient C and Patient H.[30]
29 On 3 September 2013, the investigator emailed Dr Clugston asking when he would be in a position to provide his report. Later that day, Dr Clugston advised the investigator that he would prepare the report over the coming weekend.[31]
30 On 9 September 2013, Dr Clugston emailed the investigator, advising that it had been necessary for him to work most of the weekend and that he would attempt to have his opinion to her by the end of the week.[32]
31 On 13 September 2013, Dr Clugston's report dated 12 September 2013 was received by the Regulation Agency. The report stated:[33]
If Dr Woollard had not yet completed a training program in coronary angioplasty at the time that he undertook what was a complex multi-vessel stenting procedure then my personal opinion is that that circumstance was entirely unacceptable.
My understanding is that the Cardiac Society of Australia and New Zealand had in place guidelines for training in coronary angioplasty in 2005. I do not know whether the Cardiac Society itself has any authority in declaring a Cardiologist competent or otherwise to proceed to undertake angioplasty without supervision. Likewise I do not know whether the Mount hospital had in place at the time (December 2005) credentialling criteria to ensure that Doctors performing angioplasty had undertaken a formal training program.
Worldwide, and in Australia in particular, training programs in angioplasty generally specify a precise number of angioplasties which must be undertaken either as primary or secondary operator. In general, as of 2005, an individual would not be considered competent until they had completed a training program.
I would not consider it appropriate that [Patient B] should have had a complex angioplasty procedure performed by an operator who had not completed a training program, or who was yet to complete a training program and was unsupervised.
I would note that I do not know that whether from a legal perspective completion of a training program is a prerequisite for an operator to undertake a coronary angioplasty procedure within Australia, either now or as of December 2005, [sic].
To summarise using the information available it is impossible to tell whether the adverse outcome (death) which occurred was in the setting of a competent operator encountering an avoidable or unavoidable complication which was managed well expertly, albeit with an adverse outcome, versus a less than expert operator performing to a standard below that expected of an interventional Cardiologist.
...
The inference drawn from Dr Hockings letter of 8 December 2005 was that Dr Keith Woollard may still have been in training as of the date of the procedure (15 December 2005) during which the patient died. If that was the case, and he was unsupervised, I would consider that unacceptable and entirely inappropriate. To perform the procedure unsupervised during a period of (incomplete) training may have contributed to or directly resulted in the patient's death. I would reiterate that I do not know whether in December 2005 there was any legal requirement for Dr Woollard to be 'trained' if he were undertaking an angioplasty procedure of any sort. (emphasis added)
32 On 23 September 2013, the Regulation Agency sent a letter to the Mount Hospital seeking further information relating to the general accreditation of practitioners performing coronary angioplasty procedures and Dr Woollard's particular accreditation.[34]
33 On 26 September 2013, the investigator spoke to an officer of the Mount Hospital in relation to the Regulation Agency's letter dated 23 September 2013. She made further enquiries of the hospital in order to ascertain the appropriate person to serve with an Investigator's Notice, and also discussed with Ms Jade Phelan of the Mount Hospital the further information sought by the Regulation Agency.[35]
34 On 1 October 2013, the Regulation Agency sent a letter to Ms Phelan requesting information.[36]
35 On 14 October 2013, the Regulation Agency received from Ms Phelan:[37]
36 On 23 October 2013, the investigator spoke to Mr Sebbes and obtained information from him in relation to the correspondence received by the Regulation Agency from Ms Phelan.[38]
37 On 12 November 2013, the Western Australian Notifications Committee of the Board (Notifications Committee) considered an agenda paper prepared by the investigator. The Notifications Committee deferred making a decision concerning Patient B pending the receipt of legal advice in the matter.[39]
38 On 13 November 2013, Dr Woollard's solicitors wrote to the Regulation Agency requesting an update on the investigation relating to Patient B.[40]
39 On 28 November 2013, the Board's solicitors provided the investigator with legal advice for the purpose of submission to the Notifications Committee.[41]
40 On 19 December 2013, the Notifications Committee considered the legal advice and decided to recommend to the Board that the matter involving Patient B be referred to the Tribunal.[42]
41 On 15 January 2014, the Board referred the matter to the Tribunal.[43]
42 On 18 February 2014, the Regulation Agency wrote to Dr Woollard's solicitors advising that the Board had referred the complaint to the Tribunal.[44]
43 On 12 March 2014, Dr Woollard's solicitors wrote to the Regulation Agency. Dr Woollard's solicitors said:[45]
3.1 The [Patient B] Notification was made on 23 May 2012, at a time when the [Patient S], [Patient H] and [Patient C] Proceedings (all relating to the performance by Dr Woollard of angioplasty procedures) were still before the SAT. At this time, it was open for the Board to expedite its investigation [in] relation to the [Patient B] Notification, make a decision to refer it to the SAT, and join it to the [Patient H] or [Patient C] Proceedings before the SAT. The Board chose not to do so.
3.2 The Board's decision to now refer the [Patient B] Notification to the SAT for determination is a decision to re-litigate circumstances already dealt with in earlier proceedings. That is, it is a referral in relation to the performance by Dr Woollard of an angioplasty procedure, when Dr Woollard's performance of angioplasty procedures has already been dealt with by [the] SAT in the three separate proceedings (being [Patient S], [Patient H] and [Patient C] Proceedings). (emphasis added)
44 On 14 March 2014, the Regulation Agency emailed Dr Woollard's solicitors, advising them that the matter was in the process of being briefed to its solicitors.[46]
45 On 20 March 2014, the Regulation Agency sent a brief to its solicitors in relation to Patient B.[47]
The proceedings in the Tribunal The course of the proceedings[48]
46 On 19 December 2014, the Board filed its application against Dr Woollard under s 196 of the Schedule to the National Law Act (the original application).[49]
47 On 30 January 2015, Dr Woollard filed his response statement.[50]
48 On 23 March 2015, Dr Woollard's solicitors wrote to the Board's solicitors inviting the Board to discontinue the proceedings.[51] Dr Woollard's solicitors referred to an earlier letter dated 12 March 2014 to the Regulation Agency. In their letter dated 23 March 2015, Dr Woollard's solicitors wrote:
If this matter continues to a hearing, and if the State Administrative Tribunal (SAT) decides to impose conditions on Dr Woollard's registration, any such conditions cannot protect the public any more than it is already currently protected by the conditions in place. Further, Dr Woollard has already been reprimanded on 3 separate occasions in relation to his performance of coronary angioplasties. Another reprimand will not protect the public in any additional way, and can only be punitive in nature ... Finally, our client reserves the right to bring this letter to the attention of the SAT on the question of costs. That is, if the Board continues the proceeding in relation to this matter and is no more successful at hearing (ie, by having conditions imposed on Dr Woollard that are no more restrictive than those currently in place), then our client will seek a costs order, on an indemnity basis, against the Board from the date of this letter until the date of any final determination made by the SAT (including any appeals). (emphasis added)
49 On 22 April 2015, the Board filed witness statements by Dr Clugston and by the widow of Patient B. On 23 April 2015, the Board filed a witness statement by Dr Cope.[52] On 24 April 2015, the Board filed witness statements by Dr Cumpston and Dr Mews. The Board also filed a witness statement by Dr Hockings on 8 May 2015.
50 On 7 May 2015, the Board's solicitors provided Dr Woollard's solicitors with a minute of proposed amended grounds of application (amended application). On 22 July 2015, the Board filed the amended application, without opposition by Dr Woollard's solicitors.
51 On 18 August 2015, Dr Woollard filed an amended response to the Board's amended application.
52 On 29 September 2015, Dr Woollard filed his witness statement.
53 On 1 October 2015, Dr Woollard's solicitors informed the Board's solicitors that they had 'received instructions to apply to strike out the action'.[53] On 5 October 2015, Dr Woollard filed an interim application to dismiss or strike out the proceedings. Each party filed evidence in relation to the application to dismiss or strike out the proceedings. The matter was heard on 4 November 2015. The Tribunal's decision was delivered on 17 March 2016.
54 There were, in effect, three grounds raised by the Board in the original application. They were to the following effect:
(1) As at 15 December 2005, Dr Woollard was undergoing training, he was only authorised to undertake angioplasty procedures at the Mount Hospital if Dr Hockings was available to provide immediate assistance, and he was not sufficiently experienced in conducting complex angioplasty procedures without the direct supervision of a suitable supervisor.[54]
(2) Dr Woollard failed to inform Patient B, either adequately or at all, of the risks of treating his coronary artery disease by means of angioplasty and/or the option of referral to a cardiothoracic surgeon for an alternative procedure.[55]
(3) Dr Woollard knowingly misled the widow as to the cause of Patient B's death as something other than what it was.[56]
55 By his response filed 30 January 2015, Dr Woollard, in relation to ground (1) above concerning his alleged inexperience:[57]
(a) admitted that he was undergoing training in the performance of angioplasty procedures as at 15 December 2005;
(b) alleged that 'he had reached the numbers required for training as suggested by the Cardiac Society guidelines in place at that time', being 75 procedures as the primary operator and 125 procedures as the secondary operator;
(c) alleged that the Mount Hospital had agreed in writing, dated 26 October 2005, to confer upon him temporary accreditation, subject to Dr Hockings being able to provide backup in case of a major problem developing which required immediate assistance; and
(d) alleged that Dr Hockings had agreed to help if an emergency situation developed.
56 Dr Woollard particularised these allegations by reference to:
(a) a letter dated 10 October 2005 from Dr Woollard to Dr Crawford, chairman, Medical Advisory Committee of the Mount Hospital;
(b) a letter dated 26 October 2005 from Mr Sebbes to Dr Woollard; and
(c) a letter from Dr Hockings to Dr Woollard dated 8 December 2005.
57 Relevantly, Dr Woollard's letter to Dr Crawford dated 10 October 2005 stated:[58]
As mentioned I have reached the numbers required for training as suggested by the Cardiac Society current guidelines (75 procedures as the primary operator and 125 as the secondary operator) ... I believe it would be appropriate to continue in a training model. (emphasis added)
(a) alleged as a fact that Dr Woollard's training was incomplete and gave particulars of that allegation which also served as particulars of the allegation in the original application that Dr Woollard was in training and had insufficient experience to conduct the angioplasty procedure on Patient B without direct supervision of a suitable supervisor;[59]
(b) alleged that Dr Woollard, by his letters dated 10 October 2005 and 14 December 2005, made false representations to Dr Crawford, the chairman of the Medical Advisory Committee of Mount Hospital, about his training and experience;[60] and
(c) alleged that Dr Woollard failed to ensure adequate anticoagulation of Patient B during the procedure (Anticoagulation Claim).[61]
59 Dr Woollard's letter of 14 December 2005, referred to in par (b) of the preceding paragraph, included the following:[62]
As promised, I enclosed [sic] the log book summary of the angioplasty procedures I have undertaken at the Mount Hospital.
...
104 procedures were carried out with myself as the primary operator ...
Secondary Operator
There were 49 cases where I functioned as the secondary operator at the Mount Hospital ...
Previous Experience
My initial training in angioplasty commenced well before any Cardiac Society or other guidelines had been drawn up. The experience at that time was as a secondary operator assisting with the angioplasty procedures carried out on my patients at Royal Perth Hospital.
There is no official record of these procedures as there was no reason to keep log books. Exposure took place over several years and involved well over 100 patients.
...
PS The complete details of all procedures are contained in a set of individual files kept at my office. I would be happy to arrange for you or a nominee to review the files if necessary. (emphasis added)
60 The Board's allegation and particulars referred to in par (a) of [58] above, will be referred to as the 'Inadequate Training Claim'. In relation to that claim, the Board alleged, in effect, that:[63]
(a) Dr Woollard had commenced training in the performance of coronary angioplasty procedures on or about 4 April 2004;
(b) Dr Woollard had received certain training by 'Trainers' engaged or retained by Dr Woollard;
(c) as at 15 December 2005, Dr Woollard's records showed that he had been supervised by Trainers in respect of 101 coronary angioplasty procedures performed at the Mount Hospital, of which he was the secondary operator in respect of 35 procedures, and the primary operator in respect of 66 procedures;
(d) Dr Woollard had not, prior to 15 December 2005, performed any angioplasty procedures without a Trainer being present;
(e) the Cardiac Society guidelines in 2001 in effect specified that competency would require a doctor to participate in at least 200 procedures, with a minimum of 75 procedures as the primary operator; and
(f) the Cardiac Society guidelines in 2005 increased those figures to 400 and 200 respectively.
61 In his amended response dated 18 August 2015, Dr Woollard:[64]
(a) did not admit that his training in coronary angioplasty was incomplete, or that he was not sufficiently experienced or that he had commenced training on or about 4 April 2004;
(b) admitted that his training was provided by the 'Trainers' as alleged, and that the Trainers visited Western Australia in order to provide training to Dr Woollard in the performance of angioplasty procedures at the Mount Hospital;
(c) alleged that he had reached the numbers required for training as suggested by the 2001 Cardiac Society guidelines (being 75 procedures as the primary operator and 125 procedures as the secondary operator);
(d) alleged that the 2005 Cardiac Society guidelines were not relevant; and
(e) repeated by way of particulars, the correspondence referred to in his original response.
62 The claim referred to in par (b) of [58] above in the Board's amended application will be referred to as the 'False Representation Claim'. In that regard, the Board alleged that:[65]
(a) by letter dated 10 October 2005 to Dr Crawford, Dr Woollard represented that he had performed at least 75 coronary angioplasty procedures as primary operator and at least 125 as secondary operator;
(b) by letter dated 14 December 2005 and accompanying documents, Dr Woollard represented to Dr Crawford that:
(i) he had performed 104 coronary angioplasty procedures at the Mount Hospital as primary operator and 49 as the secondary operator;
(ii) he had undertaken training in the performance of coronary angioplasty procedures by assisting as secondary operator on over 100 occasions at the Royal Perth Hospital;
(iii) he had performed significantly in excess of the number of procedures required by the Cardiac Society guidelines for coronary angioplasty competency;
(i) Dr Woollard had only been involved in 101 coronary angioplasty procedures at the Mount Hospital (35 as secondary operator and 66 as primary operator);
(ii) he had not assisted as secondary operator at the Royal Perth Hospital; and
(iii) he had not met the Cardiac Society guidelines;
(d) Dr Woollard made the false representations knowingly.
63 In his amended response to the False Representations Claim, Dr Woollard admitted that he had sent the letters to Dr Crawford dated 10 October 2005 and 14 December 2005. He said that he sent with the 14 December 2005 letter 'a log book summary of his angioplasty procedures as primary and secondary operator which log book set out, amongst other things, the date of each procedure, the vessel, whether balloon or stent and the patient unique identifying number', and that he had offered to arrange for the files to be available for review. He otherwise denied the allegations.[66]
64 As noted earlier, the parties filed witness statements in the Tribunal, including in relation to the Inadequate Training Claim and the False Representation Claim prior to Dr Woollard's application to have the proceedings dismissed as an abuse of process.
Underlying issues raised by the Inadequate Training Claim and the False Representation Claim
65 The judge in effect observed (with respect, correctly),[67] that there were two underlying issues raised by the parties' respective cases in relation to the Inadequate Training Claim and the False Representation Claim. The first concerned the method of counting of procedures for the purposes of the Cardiac Society guidelines. Dr Woollard, in his witness statement, said, in effect, that he regarded each vessel treated in the one patient as a separate procedure.[68] The Board's evidence, on the other hand, was to the effect that a 'procedure' is understood by interventional cardiologists to mean and include all of the aspects of the angioplasty procedure on a patient.[69]
66 The second issue concerned Dr Woollard's involvement as 'secondary operator' in procedures at Royal Perth Hospital in the 1980s. Even on Dr Woollard's stated method of counting procedures, he had only, according to his filed response and witness statement, performed 49 procedures at the Mount Hospital. This, together with his 104 procedures (on his counting) as primary operator at the Mount Hospital still put the total number of procedures at fewer than 200.[70] Dr Woollard, in this regard, also relied on his stated involvement in angioplasty procedures at Royal Perth Hospital, in relation to which, according to his letter of 14 December 2005, there was 'no official record'.
67 The Board had filed a witness statement by Dr Cope who had performed angioplasty procedures at Royal Perth Hospital in the 1980s. Dr Cope in his witness statement said:[71]
I did not perform any angioplasty cases with the assistance of Dr Keith Woollard. It is possible that Dr Woollard observed cases performed by me, although I have no memory of him doing so. Dr Woollard was never a participant in any angioplasty training program at Royal Perth Hospital at any time whilst I worked there.
Dr Woollard asked me to train him in angioplasty. I do not recall the year in which he made this request. Dr Woollard said that he would supply the cases. I declined to train Dr Woollard in angioplasty procedures.
68 Dr Woollard, in his witness statement in relation to this matter, said:[72]
In the early 1980s, when angioplasty was first introduced at Royal Perth Hospital, I indicated a desire to participate.
There was no formal training program. However, over a subsequent period of 1 - 2 years, I was involved with more than 100 angioplasty procedures carried out by Dr Geoffrey Cope at Royal Perth Hospital. Many, but not all, of the patients were my patients from Fremantle Hospital who I had referred for angioplasty. I stayed on after my angiogram sessions at Royal Perth Hospital for Dr Cope's subsequent angioplasty sessions on patients who were not mine.
Dr Cope has acknowledged that it was possible that I observed cases performed by him, although he has no memory of me doing so. However, his statement says he did not perform any cases with my assistance. In answer to this I expressly recall having both observed and assisted Dr Cope perform those procedures in the 1980s. I have a clear recollection of being scrubbed and performing tasks at his instruction, including insertion of catheters, inflation of balloons and injection of contrast. These tasks are identical to those performed by a 'secondary operator' in a formal program. In relation to those patients who were my patients, I was also responsible for the decision on whether they should undergo angioplasty (rather than medical treatment or bypass surgery) and for the post procedural care. During these procedures there were usually 4 people in the room (Dr Cope, myself, a nurse and a radiographer) and a technician in the control room adjacent to the procedure room.
...
I considered that I had been a 'secondary operator' when working with Dr Cope. For my patients, I made the initial decision as to whether angioplasty (rather than persisting with just medical treatment or being referred for coronary artery surgery) should be recommended to the patient. I was always responsible for the pre and post procedural management of my patients. I would always scrub in during the procedures. My involvement during the procedure would vary case to case but I did perform tasks instructed by Dr Cope, as outlined above.
As of December 2005 I believed that my experience observing and assisting Dr Cope in over 100 angioplasty procedures many years before, together with frequent exposure to angioplasty in the intervening period, my extensive involvement in educational programs about angioplasty and in particular my management before and after angioplasty of several thousand of my patients, and combined with the 153 procedures listed in the log, was more than adequate to meet the descriptor.
69 On 5 October 2015, Dr Woollard applied for orders that the Tribunal dismiss, or alternatively strike out, the Board's application pursuant to s 47(1) of the SAT Act.[73]
70 The evidence before the Tribunal comprised certain affidavits relied on by the respective parties. There was no cross-examination.
71 Dr Woollard swore an affidavit dated 7 October 2015 in support of his application.[74] Dr Woollard also relied on affidavits sworn by his solicitor, Mr Nicholas Cooper, on 6 October 2015 and 4 November 2015. Mr Cooper's affidavit of 6 October 2015 was the principal of the two affidavits.
72 The Board relied on the affidavits of Ms Stanton, solicitor for the Board, sworn 19 October 2015, 2 November 2015 and 3 November 2015, as well as an affidavit by Ms Bradshaw, senior legal adviser to the Regulation Agency, sworn 29 October 2015.
73 Generally speaking, it appears that his Honour's primary findings of fact referred to in [6] - [45] above were based on Ms Bradshaw's affidavit and Mr Cooper's affidavit sworn 6 October 2015. For present purposes, it is only necessary to refer in any detail to Mr Cooper's affidavit of 6 October 2015 and Dr Woollard's affidavit of 7 October 2015.
74 Mr Cooper in his affidavit dated 6 October 2015 annexed a chronology of events in relation to the complaints involving Patient B and other patients, and said that there had been what he called a 'delay period' between the Board receiving the widow's complaint in relation to Patient B on 22 May 2012, and the date upon which the original application was filed on 19 December 2014.[75] There was no reference to a 'delay period' between 19 December 2014 and the filing of the amended application in July 2015. The chronology prepared by Mr Cooper included reference to the death of Dr O'Shea on 15 March 2015, but Mr Cooper did not seek to explain in his affidavit the significance of that event for the purposes of Dr Woollard's abuse of process application. Also in that affidavit, Mr Cooper deposed to the effect that:
(a) the Board filed an application on 23 February 2012 in relation to Patient C, and filed an application on 7 November 2012 in relation to Patient H;
(b) on 12 June 2013, the Patient H and Patient C matters were resolved by consent, including an order that Dr Woollard be prohibited from performing any angiogram procedure and any angioplasty and stenting procedure on anyone, with a condition that the prohibition be reviewed in five years;
(c) the Tribunal heard the Patient S matter on 26 and 27 June 2012;[76]
(d) the Board received notification of the Patient A matter on 30 October 2012. That matter was referred to a performance and professional standards panel on 31 March 2014 in relation to Dr Woollard's communication with the patient prior to performing the procedure, and on 29 August 2014, the panel decided that Dr Woollard had behaved in a way that constituted unsatisfactory professional performance and cautioned him;
(e) on 11 December 2012, the Board decided to investigate the Patient W matter, and on 15 January 2014, the performance and professional standards panel determined that Dr Woollard had no case to answer; and
(f) on 18 May 2012, the Board received notification of the Patient M matter and, at a hearing on 18 November 2014 before the performance and professional standards panel, it was determined that Dr Woollard had no case to answer.
75 Mr Cooper deposed that, in relation to the Patient M, Patient W and Patient H matters, the complaints included allegations to the effect that Dr Woollard had failed to adequately provide information to the patients. In relation to the Patient H matter, it was also alleged that Dr Woollard gave certain advice which he knew was wrong or could mislead or (in respect of one piece of advice), which he erroneously believed to be true. In the Patient H matter it was also alleged that he failed to order an anticoagulant during a procedure.[77]
76 Mr Cooper also deposed to correspondence passing between his firm and the Board, including his letter dated 12 March 2014 (see [43] above) and his letter dated 23 March 2015 (see [48] above).
77 In this affidavit, Dr Woollard said, in effect, that Dr O'Shea had been his partner in practice for several decades, that he and Dr O'Shea had developed an angioplasty training program jointly and that Dr O'Shea had acted as secondary operator when Dr Woollard did coronary angioplasty procedures for his patients as primary operator, and Dr Woollard had acted as secondary operator for Dr O'Shea when Dr O'Shea was primary operator for Dr O'Shea's patients.[78]
78 Dr Woollard also said that, in relation to his angioplasty training:[79]
79 Under the heading 'Formal Angioplasty Training', Dr Woollard deposed:[80]
80 In relation to clinical records, Dr Woollard referred to certain correspondence between the Board and his solicitors in April - July 2015, in relation to alleged discrepancies in certain records, and said that had these issues been raised at any time between the procedure on 15 December 2005, or the complaint on 22 May 2012, and shortly before Dr O'Shea's death in March 2015, he would have instructed his solicitors to contact Dr O'Shea and request all of his books and records regarding the relevant procedures and to obtain a witness statement from him. He said that he was 'sure' that Dr O'Shea would have confirmed that his records were accurate.[81]
81 In relation to the training procedures performed in the 'lead up' to 15 December 2005, Dr Woollard deposed:[82]
82 In a section of the affidavit under a main heading 'Discussions with Dr O'Shea', Dr Woollard deposed that:[83]
83 In a section of the affidavit headed 'The condition', Dr Woollard deposed:[84]
84 The primary decision was delivered on 17 March 2016.
85 The judge made findings of primary fact, or at least accepted the evidence of Dr Woollard in relation to primary facts (as noted below) concerning the business relationship between Dr Woollard and his former partner Dr O'Shea; their development of and involvement in a training programme at the Mount Hospital; certain conversations between Dr Woollard and Dr O'Shea; the death of Dr O'Shea; the records of Dr O'Shea and Dr Woollard which remain available and those which do not remain available; and the absence of any records from Royal Perth Hospital.
86 Beyond these matters of primary fact, the judge also drew certain inferences including as to delay, prejudice and the public interest (which are the subject of challenge in this appeal).
87 The judge held that prejudice by reason of delay, 'double jeopardy' and public interest, although not an exhaustive statement of the bases upon which disciplinary proceedings may be dismissed for abuse of process, were sufficient to determine Dr Woollard's application.[85] The judge observed that Dr Woollard alleged three areas of prejudice in his application:[86]
(2) the destruction of some of Dr O'Shea's records; and
(3) the destruction of some of Dr Woollard's records.
88 His Honour also noted that different considerations applied to the various grounds alleged by the Board and accordingly divided them into, in effect, three distinct sections:[87]
(a) the grounds contained in the original application;
(b) the Inadequate Training Claim and the False Representation Claim;
89 In summary, his Honour found that:[88]
(a) there was no abuse of process in relation to the original application;
(b) there was no abuse of process in relation to the Anticoagulation Claim in the amended application; and
(c) the pursuit of the Inadequate Training Claim and the False Representation Claim constituted an abuse of process.
90 His Honour made findings to the following effect:
(b) there had been a 'long delay' of 21/2 years between the widow's notification of complaint, and the filing of the original application and amended application;[91]
(c) this delay was 'an extraordinary delay';[92]
(d) there was 'nothing to explain or justify' the extraordinary delay between the filing of the complaint in May 2012 and the Board's original application in 2014 and amended application in 2015;[93]
(e) Dr Woollard has not been responsible for or tolerated the delay;[94] and
(f) Dr Woollard's training had been raised before the Regulation Agency on 13 September 2013 in Dr Clugston's report dated 12 September 2013,[95] however, 'well prior to' 23 September 2013, the Board 'must have been concerned about Dr Woollard's training', given that the complaint in relation to Patient B was not isolated, and the number of complaints against Dr Woollard 'indicated a systematic failure' on his part.[96]
91 The meaning of this last-mentioned inference of fact is not, with respect, entirely clear. Dr Woollard contends that the judge was not making a finding at all, but was 'merely lamenting the absence of an explanation'.[97] It is difficult to accept that his Honour was merely voicing a lament, given that the statement appears in that part of the primary decision in which his Honour was making findings concerning the history of the relevant events, evidently with a view to considering the question of any undue delay. Rather, it appears to be a finding to the effect that the Board, acting reasonably, ought to have been sufficiently concerned about the possible inadequacy of Dr Woollard's training in the actual performance of angioplasty procedures as to commence investigations into that topic for the purpose of dealing with the widow's complaint, well prior to 23 September 2013. It appears to be an inference drawn from the fact and nature of the complaint in relation to Patient B in the context of the other complaints against Dr Woollard. His Honour did not make a finding of fact as to when, prior to 23 September 2013, the Board, acting reasonably, ought to have commenced the investigation into Dr Woollard's training.
92 The judge also made a number of particular findings to the effect that there was no specific explanation for the lapse of time that occurred between certain steps taken by the Board in the period May 2012 up to July 2015. These findings are considered in greater detail later in these reasons.
93 The judge also found that after the 'allegation' raised in 2013 by Dr Clugston, the 'Board took nearly two years to do anything about it'.[98]
94 The judge next considered the question of whether any prejudice arose from delay in relation to the Inadequate Training Claim and the False Representation Claim. His Honour did so by reference to the death of Dr O'Shea, the destruction of some of Dr O'Shea's records, and the destruction of some of Dr Woollard's records. Although not entirely clear, the judge also appears to have considered that the absence of Royal Perth Hospital records was also a source of prejudice.[99]
95 As to prejudice in connection with Dr O'Shea's death, the judge recited Dr Woollard's affidavit evidence to the effect that Dr O'Shea had been a long-time business partner, that they had developed a training program and trained together, and that they had acted as primary operators for their own patients and as secondary operators for each other's patients.[100] The judge also referred to Dr Woollard's evidence that he had discussed Patient B with Dr O'Shea.[101] The judge then said, in relation to the method of counting procedures in the context of his discussion concerning prejudice resulting from Dr O'Shea's death:[102]
Dr Woollard's evidence is that he discussed the counting of angioplasty procedures with Dr O'Shea and that to the best of Dr Woollard's recollection, Dr O'Shea agreed with Dr Woollard's approach that one stenosis could count as one procedure. These matters are plainly relevant to the [False Representation Claim] in paragraphs 17 to 20 of the Board's amended application. The Board alleges ... that, in Dr Woollard's letter to Dr Crawford [dated 14 December 2005], Dr Woollard represented to Dr Crawford and the [Medical Advisory Committee] that he had falsely misrepresented the number of procedures he had carried out. It alleged that Dr Woollard had performed only 35 coronary angioplasty procedures.
It is clear that a finding as to what Dr Woollard believed to constitute a procedure is an essential element of the allegation that Dr Woollard made false representations.
Proof of false representations by the Board requires proof of Dr Woollard's intention. A crucial part of Dr Woollard's defence will be evidence as to his intention.
Dr O'Shea's evidence as to what he [Dr O'Shea] considered a procedure to be, and any discussion with Dr Woollard, would have been very relevant to Dr Woollard's defence and to the Tribunal's determination of Dr Woollard's intent.
...
Dr O'Shea's evidence, which relates to Dr Woollard's intention may have been critical to Dr Woollard's defence. Dr O'Shea's death constitutes actual prejudice to Dr Woollard. (emphasis added)
96 In relation to the question of any prejudice arising from the loss or unavailability of records, the judge referred to the statements made by Dr Woollard in pars 24 and 25 of his affidavit (referred to in [81] above).[103] His Honour appears to have found as primary facts that:
(a) Dr Woollard 'no longer has all of the written material in relation to every angioplasty procedure';[104]
(b) Dr Woollard (by his secretary) collected 'the procedure reports and Mount Hospital event logs for each angioplasty patient from Dr O'Shea' but did not collect 'all of Dr O'Shea's records' and Dr Woollard 'does not have any of Dr O'Shea's administrative records';[105]
(c) all of Dr O'Shea's 'administrative records stored at his rooms, for example, log books and accreditation material' have been destroyed.[106]
97 The judge inferred that 'Dr Woollard's [records] or [sic] Dr O'Shea's records would be relevant to Dr Woollard's training, the number of procedures he conducted and to the allegation of fraud', ie, the False Representation Claim.[107]
98 The judge also found as a fact that there are no records in relation to any involvement by Dr Woollard at Royal Perth Hospital in the 1980s in assisting with angioplasty procedures.[108]
The death of Dr O'Shea and the loss of the records constitute actual prejudice to Dr Woollard in relation to the amended application, apart from the use of anticoagulants.
101 His Honour then turned to consider whether there had been an abuse of process by the Board 'arising from double jeopardy' and said:
(a) The complaints in relation to Patient B in the original application were, in substance, the same or closely related to the complaints made in relation to other patients.[112]
(b) The Board's application in relation to Patient B was not punitive, although it was 'poorly managed' because the Board failed to appreciate its urgency.[113]
(c) Double jeopardy did not apply in respect of the Inadequate Training Claim and the False Representation Claim raised in the amended application, both of which were new.[114]
(d) The Anticoagulation Claim was, in substance, the same or closely related to grounds that had been previously dealt with in other proceedings involving Dr Woollard.[115]
102 The judge commenced his consideration of the topic by saying that the 'public interest in the complaint against Dr Woollard being resolved by a hearing must be balanced against the fairness of the hearing',[116] although he does not ultimately appear to have found that a fair trial was not possible.[117]
103 The judge referred to the orders made by the Tribunal in relation to the complaint by Patient S on 19 December 2012.[118] In that matter, the Tribunal had found that Dr Woollard had acted carelessly but not incompetently because, at the relevant time, he was in the final stages of training and he performed the angioplasty in question under the supervision of an accredited interventional cardiologist. The Tribunal reprimanded Dr Woollard and imposed two conditions on his registration. The first condition was, broadly, to the effect that he should not perform any angioplasty or stenting procedures unless directly supervised and observed by an interventional cardiologist with at least five years' post-accreditation experience, approved by the Board, until Dr Woollard himself had completed, within a 12-month period, at least 75 angioplasty procedures as primary operator while under such supervision, and had submitted to the Board for approval a verified log book setting out the details of the procedures. The other condition was that Dr Woollard must not inflate or cause the inflation of any angioplasty balloon above its rated burst pressure. Dr Woollard was also fined.
104 The judge also referred to the orders made by the Tribunal (by consent) in relation to Patient C and Patient H, on 12 June 2013.[119] In that matter, the Tribunal made orders to the effect that Dr Woollard was reprimanded, and that his registration was subject to the condition that he be prohibited from performing any angiogram, angioplasty and stenting procedures, with such condition to be reviewed in five years. Dr Woollard was also fined. The judge observed that the effect of these orders was that Dr Woollard 'will not carry out any angioplasty procedures until at least 12 June 2018'.[120]
105 The judge proceeded to make the following findings:
(a) In relation to the grounds contained in the original application and the Anticoagulation Claim, having regard to the orders made in relation to Patients S and C, it is difficult to see any public interest in making further orders that would, in effect, replicate the earlier restrictions.[121]
(b) However, the False Representation Claim goes to Dr Woollard's fitness to practise as a medical practitioner, rather than merely his fitness to carry out particular procedures.[122]
(c) Although the False Representation Claim is relevant to Dr Woollard's fitness to practise, Dr Woollard has been in practice for many years and, other than the angioplasty procedures, nothing has previously come before the Tribunal or its predecessors in relation to his fitness to practise.[123]
(d) There is no public interest in the pursuit of the False Representation Claim or the Inadequate Training Claim against Dr Woollard.[124]
Dr Woollard admitted to me directly after the incident that 'something went terribly wrong' and that a section of plaque had occluded the main coronary artery. It was not until I received the full coroner's report, that I was aware of the catheter wire dissecting the artery.
I ... sent [a letter] to the coroner after his report, but I never received a reply and neither did my follow-up phone call.
Dr Woollard was also not available when I tried to contact him.
At that time I was emotionally unable to follow through with this complaint ...
I would like you to follow-up on this complaint if possible.
Perhaps he (Dr Woollard) should not be attempting this procedure, or if so, perhaps he should be under supervision.
107 His Honour quoted the last paragraph of the complaint and said, in that regard:[127]
The orders of the Tribunal ensured that Dr Woollard would not be allowed to do so until at least 12 June 2018. The Widow's request has been met.
Dr Woollard has not established abuse of process by delay in relation to the original application nor the anticoagulants ground in the amended application.
The Tribunal is satisfied that, in relation to the amendments identified in the Board's amended application, other than the anticoagulant ground [ie, the Inadequate Training Claim and the False Representation Claim], the issues raised in the amendments should be struck out as an abuse of process. The stage has been reached where the delay in the prosecution of the disciplinary proceedings against Dr Woollard is so prolonged that it is unreasonable. Dr Woollard has suffered actual prejudice. Dr Woollard does not share responsibility for the delay. Dr Woollard can justifiably claim that the application has passed beyond what can be justified in the due administration of justice. There would be no public interest in combining two parts of the proceeding. The Tribunal is satisfied that the continuation of this part of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
Dr Woollard has satisfied the Tribunal that the exceptional circumstances justify the Tribunal striking out those paragraphs pursuant to s 47(1) of the SAT Act.
109 The appellant's case, as amended, sets out six grounds of appeal to the following effect:
(a) his Honour did not make a finding that, but for the unexplained or unjustified delays, the application would have otherwise been heard before Dr O'Shea's death;
(b) there was no or no probative evidence that Dr O'Shea could or would have given evidence;
(c) that finding was otherwise not reasonably open on the evidence; and
(d) the judge failed to give any or any adequate reasons for that finding.
(a) there was no or no probative evidence that Dr O'Shea's records were relevant to any issue in the proceedings;
(b) that finding was otherwise not reasonably open on the evidence; and
(c) the judge failed to give any or any adequate reasons for that finding.
(a) there was no or no probative evidence that there were ever any records held by Royal Perth Hospital that were relevant to any issue in the proceedings; and
(b) there was no or no probative evidence that any relevant records that might have existed were lost or destroyed after Patient B's death or after Dr Woollard received notification of the complaint on 22 May 2012.
4A. The judge erred in law in finding that Dr Woollard was prejudiced through the loss of his own records, in that:
(a) there was no or no probative evidence that the practitioner's records were relevant to any matter in issue in the proceedings;
(b) that finding was otherwise not reasonably open on the evidence; and
(c) the learned president failed to give any or any adequate reasons for that finding.
(a) that finding was itself affected by one or more of the errors identified in grounds one to four;
(b) the judge took into account irrelevant considerations;
(c) the judge failed to take into account or have regard to submissions filed by the Board on 30 November 2015; and
(d) that finding was otherwise not reasonably open on the evidence.
110 Dr Woollard filed a notice of contention to the effect that the judge's decision should be upheld on the following two further bases:
111 Proceedings against Dr Woollard were instituted pursuant to the Health Practitioner Regulation National Law (WA) (National Law) contained in the Schedule to the National Law Act.
112 By s 6 of the National Law Act, the Tribunal is the 'responsible tribunal' for the purposes of the National Law.
The objectives of the national registration and accreditation scheme are -
(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered[.]
An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3.
115 Section 5 defines 'unsatisfactory professional performance' as:
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.
117 Section 5 defines 'professional misconduct' as:
professional misconduct, of a registered health practitioner, includes -
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession. (emphasis added)
118 In very broad terms, pt 8 of the National Law deals with, amongst other things, the 'performance' and 'conduct' of practitioners by, relevantly:
(a) enabling the Board to investigate a practitioner by appointing an investigator who reports to the Board, after which the Board considers what further action (if any) to undertake with respect to the practitioner (div 8);
(b) enabling the Board itself directly to take certain action against a practitioner, including cautioning the practitioner, accepting an undertaking from the practitioner, and imposing conditions on the practitioner's registration (div 10);
(c) establishing and referring matters to a 'performance and professional standards panel' to consider and determine questions of 'performance' and 'conduct' by the practitioner other than professional misconduct. A 'performance and professional standards panel' may caution and reprimand the practitioner, but may not suspend registration. A 'performance and professional standards panel' may impose conditions on a practitioner's registration (div 11); and
(d) enabling a 'responsible tribunal' (in this case, the Tribunal) to deal with matters of 'professional misconduct', and other specified matters including where a panel established by the Board requiring that the matter be dealt with by the Tribunal (div 12).
119 Section 138 in pt 8 div 1 provides, in effect, that a 'notification' may be made, and proceedings may be taken, under pt 8 of the National Law against a person who was, but is no longer, registered as a practitioner.
120 By s 151 of the National Law, the Board may take no further action in relation to a notification if:
(a) the Board reasonably believes that the notification is frivolous, vexatious, misconceived or lacking in substance;
(b) given the amount of time that has elapsed since the matter the subject of the notification occurred, it is not practicable for the Board to investigate or otherwise deal with the notification;
(c) the person to whom the notification relates has not been, or is no longer, registered by the Board and it is not in the public interest for the Board to deal with it;
(d) the subject matter of the notification has already been dealt with adequately by the Board; or
(e) the subject matter of the notification is being dealt with, or has already been dealt with, adequately by another entity.
121 By s 151(2) a decision to take no further action in relation to a notification does not prevent the Board or an adjudication body from taking the notification into consideration at a later time as part of the pattern of conduct by the practitioner.
122 By s 151(3) and s 151(4), if the Board decides to take no further action in relation to a notification it must give written notice to the notifier and give reasons.
123 By s 193(1) of the National Law, the Board must refer a matter to the Tribunal if, amongst other things, the Board reasonably believes, based on a notification or for any other reason, that:
(a) the practitioner has behaved in a way that constitutes professional misconduct; or
(b) the practitioner's registration was improperly obtained because of, in effect, the provision of materially false or misleading information.
124 By s 196(1)(b) of the National Law, after hearing a matter, the Tribunal may decide, amongst other things, whether, in effect, the practitioner has engaged in unsatisfactory professional performance, engaged in unprofessional conduct, engaged in professional misconduct or improperly obtained registration through the provision of materially false or misleading information.
125 By s 196(2) of the National Law, the Tribunal's powers in that regard include the power to:
(d) suspend registration for a specified period; and
126 By s 196(4) of the National Law, where the Tribunal decides to cancel a practitioner's registration, or where the practitioner does not hold registration, the Tribunal may also decide to:
(a) disqualify the practitioner from applying for registration for a specified period; or
(b) prohibit the practitioner from using a specified title or providing a specified health service.
127 The National Law Act is an 'enabling Act' within the meaning of that term in s 3(1) of the SAT Act.
128 If there is any inconsistency between the SAT Act and an enabling Act, the enabling Act prevails: s 5 of the SAT Act.
129 In dealing with matters within its jurisdiction, the main objectives of the Tribunal are, amongst other things, to achieve the resolution of complaints or disputes fairly and according to the substantial merits of the case, and to act as speedily and with as little formality and technicality as is practicable, and to minimise the cost to the parties: s 9 of the SAT Act.
130 In disciplinary proceedings in the Tribunal against medical practitioners, the principal and ultimate issue will often be one of the practitioner's present fitness to practise,[129] although under the National Law proceedings may also be taken against a practitioner who is no longer registered: s 138 of the National Law. The observations in Health Care Complaints Commission v Do[130] are pertinent in this context:
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. (emphasis added)
131 The power under s 47(2) of the SAT Act to dismiss proceedings in accordance with s 47(1) is exercisable only by a legally qualified member of the Tribunal: s 47(3) of the SAT Act.
132 By s 77 of the SAT Act, the Tribunal must give its reasons for a final decision, and the reasons must include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which the findings are based.
133 In this appeal, Dr Woollard submitted, with reference to Giudice v Legal Profession Complaints Committee,[131] that 'it is not appropriate to scrutinise the reasons of the Tribunal with a fine-tooth comb and an eye keenly attuned to the perception of error'. Although that was a case involving a decision of the Tribunal from a coram including a judge, an observation of that nature is frequently applied where the decision-maker lacks legal expertise.[132] The admonition should not be pressed too far in circumstances where the decision-maker is a Supreme Court judge who is sitting alone and who has reserved and provided written reasons for the decision.
Frivolous etc. proceedings, dismissal of etc.
(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.
135 The judge held that the term 'abuse of process' within the meaning of s 47(1)(c) is used in the sense in which that term is understood in a superior civil court of record.[133] There was no challenge to that finding in this appeal. Although the point is not determinative of the outcome of this appeal, it cannot be accepted that this is a complete or accurate statement of the position. In its application to a tribunal in the position of the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, relevantly for present purposes, is essentially protective of the public in character. Further, given that the Tribunal may impose disciplinary orders on practitioners, the exercise of the power in this context will also be guided by considerations relevant to the stay of criminal proceedings in a superior court of record: Walton v Gardiner.[134]
136 The cases are considered in more detail below but, by way of overview, the following observations are some of the principal ones which may be drawn from the cases for present purposes. The exercise of the power to dismiss or permanently stay proceedings should only be exercised in extreme or exceptional cases. The onus is on the person asserting abuse of process to prove it. It involves the party asserting abuse to establish that the controversy should be disposed of without a determination on the merits, and accordingly the onus is a heavy one. The categories of abuse of process are not closed. Abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. Thus, the court must be satisfied that the continuation of the proceedings would cause unacceptable injustice or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. A mere risk of unacceptable injustice or unfairness is insufficient.
137 In the context of a case such as the present, the considerations which would ordinarily be taken into account and which would be required to be weighed and balanced would include (without seeking to be exhaustive) whether there has been any unreasonable or undue delay in the prosecution of the proceedings; whether and to what extent there has been prejudice to the party alleging abuse, and the character of any prejudice, resulting from any undue or unreasonable delay; whether there are present any circumstances of the kind which inform the principles of double jeopardy; and the public interest in the prosecution of the proceedings in light of the scope and purposes of the relevant enabling Act, in this case the National Law Act.
138 Walton was a case in which the issue was whether certain disciplinary proceedings against certain medical practitioners should be permanently stayed as an abuse of process. The High Court upheld an appeal from the New South Wales Court of Appeal in which that court (by majority) stayed certain disciplinary complaints against the medical practitioners in question: Gill v Walton.[135] Although the High Court decision in Walton concerned a permanent stay of disciplinary proceedings, the principles in that case are, for present purposes, no different from those which apply where the order sought is to dismiss the proceedings.
139 In Walton, Mason CJ, Deane and Dawson JJ said:[136]
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness ...
In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective - ie protective of the public - in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds. In particular, in a context where the disciplinary power of the Tribunal extends both to the making of an order permanently removing a medical practitioner from the Register with consequent loss of entitlement to practise and to the imposition of a fine of up to $25,000, there is plainly an analogy between the concept of abuse of a court's process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings ...
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners. (footnotes omitted)
140 In Walton, the events leading up to the commencement of the relevant proceedings against the medical practitioners had a lengthy history. The medical treatment the subject of the complaints (which, for convenience, may be called the 'new complaints') was a form of psychiatric treatment known as 'deep sleep therapy', which was administered together with electro-convulsive therapy. The deep sleep therapy was alleged to be of 'no medical worth' and 'unjustifiably dangerous'.[137] The treatment occurred in the period 1973 - 1978. Deep sleep therapy became a matter of political interest, and a form of departmental investigation was carried out in, it seems, the late 1970s.[138] A patient died as a result of the treatment and there was a coronial inquest. The coroner reported in 1982, when the matter was referred to the Attorney General. There was also major litigation between one of the doctors and a former patient, which was attended by substantial publicity. In 1982 and 1983, certain complaints were made against one of the practitioners, and in 1985 and 1986, the assistant secretary of the Department of Health laid a number of formal complaints under the relevant legislation against the medical practitioners. Those complaints were themselves the subject of an application for a stay on the basis that those proceedings constituted an abuse of process. In 1986, the court permanently stayed those original complaints.[139] In that proceeding, the court found that the delay in bringing proceedings was 'appalling and without justification' and that the failure to take action years earlier was 'inexcusable'.[140] There followed a Royal Commission into deep sleep therapy. One of the doctors subject to complaint (Dr Herron) gave evidence before the Royal Commission over 29 days. The Royal Commission was itself extremely critical of the delay on the part of the Health Department in investigating and pursuing complaints against the medical practitioners. After the conclusion of the Royal Commission, the Department initiated the new complaints against the medical practitioners. The new complaints were not identical with the original complaints which had previously been stayed, but they arose out of the same pattern of professional conduct as gave rise to the earlier complaints, and there was a substantial degree of overlapping of issues between the two.[141] In the New South Wales Court of Appeal, Gleeson CJ was not satisfied that the medical practitioners would not be able to obtain a fair trial by reason of the delay in bringing proceedings.[142] In relation to whether the continuation of the proceedings would be, of itself, so unfairly or unjustifiably oppressive as to constitute an abuse of process, his Honour considered that the matter was 'finely balanced', but the balance was tipped in favour of the granting of the stay.[143] His Honour, in that regard, was particularly influenced by the fact of the stay of the earlier proceedings in 1986. This was a consideration informed by the principle against double jeopardy.[144]
141 In Walton, the Health Department's submitted that the principle of double jeopardy was irrelevant to the question of abuse of process in the circumstances of that case.[145] That submission was rejected. The majority observed that the absence of an earlier hearing on the merits and the variations between personal complainants and the details of the complaints meant that, even if a strict rule against double jeopardy is applicable to proceedings in the Tribunal, the current proceedings would not fall within it. However, they found that the sense of injustice which inspires the doctrine against double jeopardy was plainly present in large measure.[146]
142 In Walton, the majority concluded:[147]
It follows from what has been said above that the Department has failed to identify any error of principle or fact affecting the Court of Appeal's decision that the current proceedings in the Tribunal should be permanently stayed. As has been said, that decision was the result of a weighing process involving a subjective balancing of the various factors and considerations supporting or militating against a conclusion that a continuation of the proceedings in the Tribunal would be so unfairly and unjustifiably oppressive of the respondents as to constitute an abuse of the Tribunal's process. As the different conclusions reached [by the majority and the minority in the Court of Appeal] indicate, the comparative weight to be given to particular considerations and factors in that weighing process and the ultimate outcome of it involved a substantial element of individual judgment. In our view, the conclusion reached by the majority of the Court of Appeal was clearly open in all the circumstances of this quite exceptional case. That being so, and in the absence of identified error of law or fact, it is no part of the function of this Court to repeat that weighing process for the purpose of determining whether it would reach the same conclusion as that reached by the majority of the Court of Appeal. Indeed, no submission to the contrary was advanced on behalf of the Department. (emphasis added) (footnote omitted)
143 What amounts to an abuse of court process is insusceptible of a formulation comprising closed categories.[148] Nevertheless, the scope of the power to grant a general stay of proceedings, and its underlying general purpose, namely to control the court's process and proceedings, serve to provide some general indication of the matters which must be taken into account, and the limits to the matters which may be taken into account when the power is invoked: Jago.[149] As there is no common law right to a speedy trial, discretionary remedies such as a permanent stay must necessarily relate to the harm suffered or likely to be suffered if appropriate orders are not made.[150]
144 The concept of abuse of court process extends to proceedings 'instituted for an improper purpose', and to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging', or 'productive of serious and unjustified trouble and harassment': Michael Wilson & Partners Ltd v Nicholls.[151] In Batistatos v Roads and Traffic Authority of New South Wales,[152] Gleeson CJ, Gummow, Hayne and Crennan JJ quoted the observations of McHugh J in Rogers v The Queen[153] to the effect that whilst the categories of abuse of procedure remain open, they will usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.
145 Also, in Tomlinson v Ramsey Food Processing Pty Ltd,[154] French CJ, Bell, Gageler and Keane JJ said that 'abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute' (emphasis added). Thus, the court must be satisfied that the continuation of the proceedings would cause unacceptable injustice or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. A mere risk of unacceptable injustice or unfairness is insufficient.[155]
146 In Jago, the High Court considered the question of whether criminal proceedings should be permanently stayed on account of unreasonable or undue delay by the prosecution. The relevant offences had been allegedly committed between 11 and eight years earlier. More than seven years had passed since there was first a recommendation to commence proceedings. Five years had passed from the committal. In the New South Wales Court of Appeal, Kirby P (with whom Samuels JA relevantly agreed) found that there was 'four full years of inactivity' indicating a 'history of ... shocking inattention',[156] but nevertheless rejected an application for a permanent stay. In Jago, the High Court held that there was no common law right to a speedy trial of a criminal charge separate from the right to a fair trial and upheld the New South Wales Court of Appeal's decision.
147 In Jago, in a passage cited with approval by the High Court in Subramaniam v The Queen,[157] Brennan J said:
The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind.
148 In Jago it was observed that proceedings may be susceptible to a permanent stay where:
(a) there has been unreasonable or undue delay in the initiation or prosecution of proceedings; and
(b) the effect of the delay is prejudicial in the sense that any subsequent trial will necessarily be an unfair one to the accused, or the continuation of proceedings would itself be so unfairly oppressive as to constitute an abuse of process.[158]
149 The word 'delay' in this context is a legally connotative word.[159] The starting point is whether the delay is so prolonged that it is unreasonable in the context of the particular case.[160] In determining whether there has been unreasonable or undue delay, regard will generally be had to matters such as the length of the delay, the reasons for the delay, and the accused's responsibility for asserting his rights.[161] In the context of criminal (and relevantly analogous) proceedings, in assessing the length of the delay and the reasons for it, regard will ordinarily be had to matters including:
(a) when the relevant authorities first became aware of the alleged conduct in question;
(b) when the relevant authorities first became aware of the material said to prove the accused's guilt;
(c) whether the charge is a complex one or simple one; and
(d) what is reasonable in the context of limited institutional resources.[162]
150 The exercise of the power to dismiss or permanently stay proceedings should only be exercised in extreme or exceptional cases.[163] It involves the applicant establishing that the controversy should be disposed of without a determination on the merits.[164] The onus is on the person asserting abuse of process to prove it, and the onus is a heavy one: Williams v Spautz.[165]
151 Although the power permanently to stay proceedings has been said to be 'discretionary', in this context the word 'discretionary' indicates that although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is discretion to refuse a stay if proceedings are an abuse of process, or to grant one if they are not. Accordingly, the decision is an evaluative decision of a subjective nature, and it is not a discretionary decision 'properly so called'. Nevertheless, in an ordinary appeal against such a decision, appellate court intervention depends upon satisfaction of the same principles that apply in respect of discretionary decisions, properly so called[166] ie, the principles stated in House v The King.[167]
152 An appeal in this case can only be brought on a question of law: s 105(2) of the SAT Act. Leave is also required: s 105(1) of the SAT Act. An appeal on a question of law under s 105(2) is analogous to proceedings for judicial review, although s 105(2) applies to all questions of law, jurisdictional or otherwise: Commissioner for Consumer Protection v Carey.[168]
153 For present purposes, and without attempting to be exhaustive of the topic, the following observations may be made about questions of law in this context.
154 The question of whether there is any evidence capable of supporting a particular finding of fact, is a question of law: Kostas v HIA Insurance Services Pty Ltd;[169] Australian Broadcasting Tribunal v Bond.[170] A question of whether any particular inference of fact is open to be drawn from other facts found or agreed, is a question of law: Bond;[171] Carey.[172] Thus, questions of whether the primary facts have been found, or inferences have been drawn, in the absence of evidence, are questions of law: Bond;[173] Carey.[174] In discretionary decisions, or evaluative decisions of the kind in this case, questions of whether the decision-maker acted on wrong principles, took into account irrelevant considerations (ie, considerations it was bound not to take into account), or failed to take into account relevant considerations (ie, considerations it was bound to take into account), will be questions of law: New York Properties Pty Ltd v Federal Commissioner of Taxation;[175] Paridis v Settlement Agents Supervisory Board.[176] Errors in relation to such decisions may be express, or they may be inferred where the relevant decision is unreasonable or plainly unjust, or is manifestly unreasonable in the sense that no reasonable Tribunal with a proper understanding of the relevant law could have reached that decision: House;[177] Avon Downs Pty Ltd v Federal Commissioner of Taxation;[178] Edge Visionary Living Pty Ltd v Nairn;[179] Paridis.[180] Further, where all the primary facts have been found or were not in dispute, the question of whether those facts necessarily fall within, or outside of a legal description given to them, or a statutory word or phrase, is a question of law: Vetter v Lake Macquarie City Council;[181] Williams v Bill Williams Pty Ltd;[182] Sharp Corporation of Australia Pty Ltd v Collector of Customs.[183]
155 Ground 6 of the appeal in effect alleges that the judge's ultimate finding of abuse of process was not an inference open on the judge's findings of primary fact (see [6] - [45] and [85] above) and on the inferences of fact which were open on the evidence. The latter were to the effect that there was no abuse of process in relation to the original application; there was no inexcusable delay prior to the Board receiving the widow's complaint; that circumstances in the nature of double jeopardy did not apply in respect of the Inadequate Training Claim and the False Representation Claim; and that the False Representation Claim went to Dr Woollard's fitness to practise as a medical practitioner, rather than merely his fitness to carry out particular procedures. Further or alternatively, it is alleged that the finding of abuse of process was not open on the evidence (which was not in dispute). In the light of the scope of ground 6, it is convenient to consider the judge's findings in relation to abuse of process with respect to the four topics to which the judge had regard in reaching his conclusion, namely, delay, prejudice, double jeopardy and public interest. This inquiry will also allow conclusions to be drawn in relation to the other grounds of appeal.
156 The judge made the positive finding that there was no 'inexcusable' delay by the Board or the widow prior to the filing of the widow's complaint in May 2012.[184] Also, there was no finding that there was any undue or unreasonable delay, or even 'delay', for which the Board was responsible prior to May 2012.
157 Nevertheless, his Honour found that the period between May 2012 (when the widow's complaint was first made) and the filing of the original application in December 2014, and then up to the amended application in July 2015, constituted an 'extraordinary' delay. The judge found that there was 'nothing to explain or justify the delay' in that period.[185]
158 The Board contends, in effect, that the findings that there was nothing to explain or justify the delay in this period were made in the absence of evidence and, insofar as they were inferences, the inferences were not open on the primary facts as found by the judge.[186]
159 Dr Woollard contends, in effect,[187] that the findings were not made in the absence of evidence or they were open as inferences, having regard to, relevantly:
(a) a finding that the Board gave no explanation for taking two months after 15 January 2013 to brief an expert;[188]
(b) a finding that the Board gave no explanation why the expert took two months after he was briefed to determine that he needed more information;[189]
(c) the findings that there was no explanation why the expert took, overall, six months to prepare his report dated 12 September 2013, and that the Board 'should have ensured' that the expert would be in a position to produce a report promptly or the Board should have otherwise engaged another expert;[190]
(d) a finding that there was no explanation why it took two months after 15 January 2014 to send a brief to solicitors;[191]
(e) what Dr Woollard described as the judge's 'lament',[192] referred to in [91] above, which, as noted earlier, was a finding to the effect that the Board, acting reasonably, ought to have been sufficiently concerned about the possible inadequacy of Dr Woollard's training in the actual performance of angioplasty procedures as to commence investigations into it for the purpose of dealing with the widow's complaint, well prior to 23 September 2013;[193]
(f) a finding that the Board was 'plainly aware of issues as to Dr Woollard's training by 13 September 2013 as a result of Dr Clugston's report', and there was no explanation why it took nearly two years to raise the issue of Dr Woollard's training in the amended application, and why it was not in the original application;[194] and
(g) a finding that there was no explanation by the Board for the delay in raising the False Representation Claim.[195]
160 Dr Woollard also relied, in this context, on certain observations of Newnes JA in Smith v Bank of Western Australia Ltd.[196] That was a case involving an application to dismiss certain civil proceedings for want of prosecution. His Honour observed that the relevant events occurred some 32 years previously, and that the action was commenced approximately five years after those events. His Honour said:[197]
It is well-established that it is particularly incumbent upon a party who makes a late start in commencing proceedings to pursue those proceedings with diligence. It hardly needs to be said that that did not occur in this case. The action has now been on foot for some 27 years. (emphasis added)
161 Dr Woollard relies, in particular, on the italicised part of this passage.
162 As the decision in Edwards shows (if authority be needed for the point), a distinction may be drawn in this context between an 'overall' delay in the sense of the period of time between the events the subject of the proceedings and the time taken to bring the proceedings to trial, and an 'unexplained' delay within that overall period.[198]
163 In this case, although it may be accepted that the judge found that there were intervals of time between certain steps which were not the subject of express explanation by the Board, the judge's ultimate finding was that there was 'nothing' to explain or justify the delay over the whole of the period identified by the judge.[199] Yet, there was evidence, and indeed the judge made numerous findings of primary fact based on the evidence, that in that period from May 2012 to July 2015, the Board investigated the complaint, gathered evidence and instructed solicitors. Also, after the filing of the original complaint, the Board filed witness statements, prepared a minute of amended application, served it on Dr Woollard's solicitors and later filed it, without opposition from Dr Woollard, prior to Dr Woollard's application to have the proceedings dismissed as an abuse of process. Each of those findings of fact established what the Board was doing within the relevant period in response to the widow's complaint. The judge's finding that there was 'nothing' to explain or justify the delay between the notification of the complaint in May 2012, and the commencement and amendment of proceedings in the Tribunal, was not open on the primary facts found. There was no evidence upon which such a finding could be made.
164 The specific matters relied on by Dr Woollard and referred to in [159] above, do not alter that conclusion or otherwise assist Dr Woollard. The matters in (a) - (d) of [159] above are referred to in [173] below.
165 As to the matter referred to in par (e) of [159] above, as the judge correctly observed, it is 'easy to be wise after the event'.[200] In support of his finding that the Board should have been previously aware of Dr Woollard's inadequate training well prior to 23 September 2013, the judge referred to other complaints made prior to that date to the Board against Dr Woollard. However, the following observations can be made about these other complaints:
(a) in relation to Patient S, Dr Woollard was found, on 19 October 2012, to have been 'careless' but not incompetent, having acted under supervision in that case;[201]
(c) in the case of Patient H, the complaints also involved failing to use an Export catheter or any other aspiration catheter to attempt to aspirate a thrombus or thrombi, failing to order and administer appropriate drugs, including anticoagulant, delay in calling for emergency resuscitation, and the giving of wrong advice;[205]
(d) the matters in relation to Patient C and Patient H were resolved by consent on 12 June 2013;[206]
(e) the matter in relation to Patient A concerned Dr Woollard's communication with a patient prior to conducting the procedure;
(f) the matters in relation to Patients A, W, and M were not determined until 2014; and
(g) in relation to Patient W and Patient M, there was found to be no case to answer.
166 Accordingly, the other complaints against Dr Woollard, to a significant extent, involved inadequacies in relation to the provision of information and advice, and post-intervention care. Some concerned the failure to use appropriate drugs and anticoagulant. Others, in relation to the performance of the angioplasty procedures, were, prima facie, not inconsistent with ad hoc error. There were only three determinations made prior to September 2013, and two of them (in relation to Patients C and H) had only been made a few months earlier.
167 It is doubtful that, when looked at without the benefit of hindsight, the inference was open on this material that the Board, acting reasonably, ought to have been sufficiently concerned about the possible inadequacy of Dr Woollard's training in the actual performance of angioplasty procedures as to commence investigations into that topic for the purpose of responding to the widow's complaint, at any time prior to 23 September 2013, let alone 'well prior' to then.
168 In any event, the finding is incapable of assisting in the drawing of an inference of abuse of process in this context. That is because, even if an inference of some delay were open, the question of when the earlier investigation into Dr Woollard's training should have been commenced, and related questions of the period of delay caused by the Board's neglect in failing to commence the investigation earlier, and the extent to which (if any) that delay occasioned or contributed to any prejudice to Dr Woollard, were considerations which the judge was bound, but failed, to consider.
169 Insofar as the judge found that the Board was 'plainly aware of issues as to Dr Woollard's training by 13 September 2013 as a result of Dr Clugston's report' (see par (f) in [159] above),[207] that inference was not open on primary facts found and was not open on the evidence. Dr Clugston, in his report dated 12 September 2013, (as the judge found)[208] said that if Dr Woollard was still in training and undertook the procedure on Patient B unsupervised, then that would be entirely unacceptable. Dr Clugston did not purport to say that he knew that Dr Woollard was still in training at the time, but rather raised it as a matter for inquiry. On 23 September 2013, the Regulation Authority wrote to the Mount Hospital seeking information relating to the general accreditation of practitioners performing coronary angioplasty procedures, and Dr Woollard's accreditation in particular. It was not open to the judge to infer that the Board was aware of the 'issues' as to Dr Woollard's training prior to undertaking the relevant inquiries.
170 Moreover, the finding in par (f) in [159] above appears to be related to, and partly predicated upon, the finding that Dr Clugston raised an 'allegation' in his report of 12 September 2013 which the Board 'took nearly two years to do anything about'.[209] That finding was not itself open on the judge's finding of primary fact as to the inquiries and investigations undertaken by the Board on and from 23 September 2013 in response to Dr Clugston's query about Dr Woollard's training.
171 Further, insofar as the judge impliedly found (in the finding referred to in par (f) in [159] above) that the Board had not raised any issue at all about Dr Woollard's training and experience in the original application, that finding was not open. In its original application, the Board alleged that Dr Woollard was 'undergoing training' as at 15 December 2005. That allegation was admitted by Dr Woollard in his original response. The Board also alleged in its original application that whilst in training, Dr Woollard lacked experience to undertake complex angioplasty procedures without the direct supervision of a suitable supervisor. That allegation was denied by Dr Woollard in his original response, and he also alleged that he had reached the numbers required for training as suggested in the 2001 Cardiac Society guidelines. The effect of Dr Woollard's original response was that even though he (admittedly) was undergoing training when he treated Patient B, he nevertheless had done at least 200 procedures in accordance with 2001 Cardiac Society guidelines, and accordingly had sufficient experience to carry out the angioplasty procedure on Patient B without direct supervision. It was that point which the Board itself, in effect, picked up in the amended application in the Inadequate Training Claim and in connection with the False Representation Claim. The amended application was filed without objection in July 2015.
172 It is true (further in relation to par (f) of [159] above and in relation to par (g) of [159] above) that the Board did not in affidavit evidence explain why the Inadequate Training Claim and the False Representation Claim were only raised in the amended application.[210] However, that merely indicates that there was no explanation on oath as to why those matters were not included as part of the original application, with the resultant unexplained delay being the period between the original application of December 2014 and the amended application of July 2015. It was not open to infer that this left the whole of the period after May 2012, up to the commencement of proceedings in the Tribunal, unexplained and unjustified.
173 Further, none of the matters referred to in pars (a) - (d) of [159] above, singularly or collectively, were capable of raising an inference that there was nothing to explain or justify the delay in the whole of the period between May 2012 and July 2015. In the period at least up to 15 January 2014, when the Board referred the matter to the Tribunal, the inference was not open that the steps taken by the Board were attended by delays beyond the bounds that might ordinarily be expected in an investigation of this kind in these circumstances, particularly in relation to a complaint where the complainant's husband had died.
174 The position is somewhat different in relation to the period after 15 January 2014, up to the filing of the original application on 19 December 2014. The whole of that 11-month period is, on its face, difficult to justify. Even then, however, in disciplinary proceedings of this nature in these circumstances, it would be expected that the Board and its solicitors would take some time to prepare and settle an application for filing in the Tribunal. In any event, the judge's finding that the whole of the period between May 2012 and December 2014, and then up to July 2015, constituted delay which was unexplained and unjustified, was an inference not open on the primary facts as found and not open on the evidence. Nor was it open to his Honour to infer that the whole of the lapse of time between May 2012 and the commencement and amendment of the proceedings in the Tribunal was 'extraordinary'.
175 Nor do the observations in Smith assist Dr Woollard in this appeal. The delays in that case were obviously of a different order and character. Here, the Board and Dr Woollard were not involved in purely civil proceedings in the ordinary sense. The events in question here were not personally known to the Board. Rather, the events in question had to be investigated after the matter was brought to the Board's attention by the widow. Also, in this case, by the time that Dr Woollard made his application to have the proceedings dismissed under s 47 of the SAT Act, the issues had been joined by the amended application and the amended response, and each party had filed its or his witness statements.
176 Nevertheless, it may be accepted that in determining the effects of unreasonable or overdue delay in this context, account may be taken of the period elapsed since the alleged misconduct occurred, including that part of the period prior to the Board becoming aware of the alleged misconduct.[211] That involves a consideration of the question of prejudice, to which it is now convenient to turn.
177 It is convenient to commence a consideration of the question of prejudice by reference to the High Court's observations in Edwards:[212]
Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.
178 The judge inferred two main instances of prejudice in relation to the Board's proceedings against Dr Woollard in this matter. The first was Dr O'Shea's death and the second was the loss and absence of certain records. Each of these matters will now be considered in turn.
179 The judge found that Dr Woollard was prejudiced by the delay as a result of Dr O'Shea's death. That inference was not open on the primary facts found, or on the evidence.
180 Dr Woollard's evidence (accepted by the judge)[213] was to the effect that he had discussed cases, including Patient B, with Dr O'Shea, but that Dr Woollard could not remember the content of the discussions, and he does not know what, if anything, Dr O'Shea remembered about those discussions. However, even if it be assumed that Dr O'Shea could have given some evidence about his discussions with Dr Woollard concerning Patient B (or other patients), there was no basis for inferring that the discussions could have had any relevance to the issues raised by the Inadequate Training Claim or the False Representation Claim. Those claims did not concern the particular circumstances of the performance of the angioplasty on Patient B (or other patients).
181 Further, even if relevance were assumed, Dr Woollard's affidavit evidence on this topic was to the effect that he did not know whether Dr O'Shea could provide any evidence about any conversations with Patient B (or other patients), let alone any evidence helpful to Dr Woollard. Accordingly, an inference that the death of Dr O'Shea would occasion prejudice to Dr Woollard in that regard was not open.[214]
182 Further, the absence of any utility of any such evidence is confirmed by the judge's finding to the effect that Dr Woollard's clinical notes in relation to Patient B had been retained, and had been sent to the Regulation Agency after the making of the widow's complaint.[215]
183 Next, Dr Woollard said (and the judge found)[216] that he and Dr O'Shea had discussed the counting of angioplasty procedures, and that Dr Woollard's best recollection and belief was that Dr O'Shea used the same counting system. If Dr Woollard had deposed that the discussions occurred on or prior to 14 December 2005 (which he did not, as he specified no time period for the discussions), it would have been open to the judge to infer that evidence to that effect by Dr O'Shea might arguably have been potentially relevant to the False Representation Claim insofar as it concerned the representation made about the number of procedures carried out in training at the Mount Hospital. However, even if it were assumed that the conversations took place on or prior to 14 December 2015, it was not open to the judge to infer that any such evidence 'may have been critical' to Dr Woollard's defence.[217] Dr Woollard may still give the evidence of such conversations with Dr O'Shea. Whilst Dr O'Shea cannot be called to corroborate the conversations, equally, evidence may be given by Dr Woollard about those conversations without fear of contradiction. Dr O'Shea's account of these conversations were not, even arguably, critical to Dr Woollard's defence of the False Representation Claim.
184 Further, the judge did not find that Dr O'Shea could or would have given expert evidence about the understanding commonly held amongst reputable interventional cardiologists in December 2005 as to the method of counting angioplasty procedures. Rather, the judge in his findings confined the question of prejudice to evidence relevant to Dr Woollard's state of mind.[218] Accordingly, on the judge's findings, any evidence of Dr O'Shea as to the conversations with Dr Woollard would be irrelevant to the Inadequate Training Claim.
185 Further and in any event, Dr Woollard in his submissions in this appeal accepted that, insofar as expert evidence may be relevant to the topic of counting procedures, Dr O'Shea is not the only person who could give such evidence.[219] Dr Woollard's suggestion that Dr O'Shea was 'uniquely placed' to offer evidence about the counting of those procedures, given his involvement in them,[220] is misconceived. Although Dr O'Shea may have been physically involved in the procedures, his physical presence is irrelevant to Dr Woollard's state of mind when he wrote the letter of 14 December 2005, and to the understanding commonly held amongst reputable interventional cardiologists in December 2005 as to the correct method of counting angioplasty procedures.
186 Accordingly, it was not open to the judge to infer that 'Dr O'Shea's death constitutes actual prejudice to Dr Woollard'.[221]
187 It is now necessary to turn to the judge's inference of prejudice arising from the loss of Dr O'Shea's records, the loss of Dr Woollard's records, and (it appears) the absence of Royal Perth Hospital records from the 1980s.[222]
188 As to Dr O'Shea's records, the judge's findings of primary fact[223] (although not, with respect, entirely clear) were, it appears, in substance to the effect that Dr Woollard had collected the procedure reports and Mount Hospital event logs for each angioplasty patient from Dr O'Shea, but had not collected any other records of Dr O'Shea (such as his administrative records). The judge found, in effect, that all of Dr O'Shea's other records had been destroyed after Dr O'Shea's death. His Honour inferred that the loss of those other records 'constitute[d] actual prejudice to Dr Woollard'.[224] That finding was not open.
189 The Board's case against Dr Woollard in the Tribunal in relation to the Inadequate Training Claim and the False Representation Claim was based on Dr Woollard's own records which he supplied to Dr Crawford on 14 December 2005 (a day before Patient B's coronary angioplasty and two days before the death of Patient B) in the context of seeking accreditation. Dr Woollard in his amended response admitted that he sent the letter of 14 December 2005, which was accompanied by 'a log book summary of his angioplasty procedures as primary and secondary operator which log book set[s] out, amongst other things, the date of each procedure, the vessel, whether balloon or stent and the patient unique identifying number'.[225] These log book summary records were not lost or destroyed. It was not open to infer that any of Dr O'Shea's records would or even could have assisted Dr Woollard to resist the Inadequate Training Claim or the False Representation Claim.
190 In any event, even if it were assumed that Dr O'Shea's own procedure reports and Mount Hospital event logs for each angioplasty patient were arguably relevant, on the judge's finding, Dr Woollard (by his secretary) had collected those records from Dr O'Shea. There was no evidence or finding to the effect that those records collected by Dr Woollard had been destroyed.
191 Nor was there any basis to infer that Dr Woollard's other records that have now apparently been destroyed (namely all ancillary and administrative files, such as log books)[226] would have assisted Dr Woollard in defending the Inadequate Training Claim and the False Representation Claim. In relation to the Inadequate Training Claim, the issue was what Dr Woollard's contemporaneous log summary records revealed in terms of the number of procedures performed, either as primary operator or secondary operator. The False Representation Claim involved the further question as to Dr Woollard's state of mind in relation to the counting of procedures when he wrote the letter of 14 December 2005 to Mount Hospital in the context of seeking accreditation. There was nothing in the judge's primary findings of fact from which it was open to him to infer that any other records had any relevance to these issues, let alone that they would or even could have assisted Dr Woollard in meeting the Board's case, and there was no evidence that would support such a finding.
192 As to the Royal Perth Hospital records, there was no finding, or any evidence upon which to make a finding, that such records existed on 14 December 2005 (the date of Dr Woollard's letter to Dr Crawford), 15 December 2005 (the date of Patient B's coronary angioplasty), let alone in May 2012 (when the widow first made the complaint). In this context, it was not open to the judge to infer that Dr Woollard was prejudiced by the Board's 'delay' in the period May 2012 up to the commencement and amendment of the proceedings in the Tribunal, or even by 'delay' if measured from the day of the alleged misconduct on 14 and 15 December 2005. The finding of relevant prejudice resulting from the 'delay' was made in the absence of any evidence to support it. Indeed, Dr Woollard in his letter dated 14 December 2005 said that there were no official records in relation to his stated involvement in angioplasty procedures at Royal Perth Hospital in the 1980s.[227]
193 The result is that even if it had been open to the judge to find that there was unreasonable or undue delay in instituting or prosecuting the proceedings before the Tribunal in relation to Patient B, it was not open to infer that the delay caused any prejudice to Dr Woollard, or that a fair trial of the False Representation Claim or the Inadequate Training Claim was not possible.
194 As noted earlier, his Honour found that the concept of double jeopardy had no application to the False Representation Claim and the Inadequate Training Claim.
195 In the context of this case, once it is accepted, as it should be, that it was not open to infer that Dr Woollard had established prejudice resulting from any delay, the finding of abuse of process was not open. In this regard, although the judge expressed reservations about the merits of the False Representation Claim (albeit without a hearing on the merits),[228] there was no contention by Dr Woollard, or finding by the judge, that the claim was 'frivolous, vexatious, misconceived or lacking in substance' within the meaning of s 47(1)(a) of the SAT Act. Also and in any event, even if the Board's claim of misrepresentation, insofar as it related to Dr Woollard's statement as to the number of procedures carried out at the Mount Hospital, were thought to lack merit, there remained the question of the truth of Dr Woollard's statement concerning his experience in undertaking angioplasty procedures at Royal Perth Hospital in the 1980s. Even on Dr Woollard's case, he had not reached the number of procedures referred to in the Cardiac Society guidelines without bringing to account his alleged involvement in procedures at Royal Perth Hospital.
196 Accordingly, there was no basis for inferring actual prejudice against which the public interest in the prosecution of Dr Woollard might be weighed in the balance. Nevertheless, the following observations may be made about his Honour's findings in relation to the topic of public interest.
197 The judge inferred that there was no public interest in allowing the False Representation Claim and the Inadequate Training Claim to be heard and determined on their merits.[229] His Honour appears to have come to this conclusion on the basis of his other findings to the effect that:
(a) Dr Woollard had 'been in practice for many years';[230]
(b) 'other than the angioplasty procedures nothing [had] come before [the] Tribunal or its predecessors in relation to [Dr Woollard's] fitness to practise';[231]
(c) the 'Board took nearly two years to do anything' about the 'allegation' raised in Dr Clugston's report of 12 September 2013;[232]
(d) the widow's complaint was sufficiently answered by the previous orders of the Tribunal precluding Dr Woollard from conducting angioplasty procedures until at least 12 June 2018;[233] and
(e) it was not until 2 November 2015 that an allegation regarding Dr Woollard's fitness to practise had been made by the Board.[234]
198 Although not referred to expressly in this part of his Honour's reasons, it may also be inferred that his Honour had in mind the following observations regarding the public interest made earlier in his Honour's reasons:[235]
In Gill, both Gleeson CJ and Kirby P considered the role of public interest in determining which proceedings should be dismissed as an abuse of power [sic process]. Gleeson CJ at 201 referred to the balancing exercise required by the court:
'However, before this Court exercises its supervisory jurisdiction to stay the proceedings in the Medical Tribunal it is important to weigh in the balance considerations of public interest. Those considerations are not all one way. There is a public interest in fairness of judicial and disciplinary procedure. The arguments so far canvassed do not merely reflect the private interests of the claimants. Nevertheless, there is a public interest in the due prosecution of charges such as those presently involved and it is necessary to measure the weight of that interest in the present case.'
The fact that any sanction is to be considered at the time of ordering the sanction, rather than when the conduct occurred, means that whether the conduct complained of is still occurring or of recent occurrence is relevant. Both Gleeson CJ and Kirby P found that the fact that the conduct complained of has ceased, particularly when it has ceased long ago, is relevant to determining where the public interest lay.
In Gill, at 201202, Gleeson CJ stated:
'... However the fact that nothing is presently occurring, or has recently occurred, in respect of which the public need protection from the claimants is a matter to be taken into account.'
'[Deep Sleep Therapy] is now administered nowhere in the State. It is unlawful. There is no suggestion that its use has been revived or will be used again by anyone, least of all the claimants. Such is the passage of time since the events the subject of the complaints (which date back to 1970) that one of the claimants has retired from practice. Doubtless the other claimants are now in many ways different people, exercising different skills according to different professional knowledge. In such circumstances, to suggest that the public interest requires an inquiry into the claimants' fitness to practise their profession now, by reason of events fifteen to twenty years ago, is wholly unconvincing.'
199 In light of the judge's finding that the False Representation Claim went to the question of Dr Woollard's fitness to practise, the matters in pars (a) - (e) of [197] above were not, collectively or separately, capable of supporting an inference that there was no public interest in allowing the False Representation Claim to proceed to a determination on its merits. Further, as noted earlier, the finding in par (c) of [197] above was itself not open as an inference and was made in the absence of evidence. Also, the finding in par (e) of [197] above is not open insofar as it involves an inference of an absence of public interest from the fact that the Board first raised the question of public interest in submissions on 2 November 2015.
200 The question of fitness to practise could only become the subject of submissions in, relevantly, two circumstances in disciplinary proceedings of this kind. The first is on the question of penalty if the Board were to succeed in proving its allegations following a determination on their merits, given that both the original application and amended application alleged that Dr Woollard had engaged in professional misconduct, the penalty for which may include deregistration. The second circumstance in which submissions might be made in relation to the topic of fitness to practise, is where the practitioner sought to have the disciplinary proceedings terminated without a hearing on their merits. This second circumstance forms the background to the board's submissions filed on 2 November 2015. There could be no inference that because the Board first raised the matter of Dr Woollard's fitness to practise in submissions in Dr Woollard's dismissal application, this indicated or tended to indicate that no public interest would be served by allowing the claims to be determined on their merits.
201 For these reasons, the inference was not open on the primary findings of fact or the evidence that it was not in the public interest to proceed with the False Representation Claim. If the pursuit of the False Representation Claim was not precluded by a consideration of the public interest, and if (as is the case as more particularly discussed in these reasons dealing with the notice of contention) the Inadequate Training Claim formed part of the evidentiary substratum of the False Representation Claim, the inference is not open that a consideration of the public interest weighed against the pursuit of the Inadequate Training Claim.
202 Accordingly, there was no basis for the judge to infer that there was no public interest in allowing the False Representation Claim and the Inadequate Training Claim to proceed.
203 It follows from the foregoing that grounds 1, 2(c), 3(b), 4, 4A(b), 5(a), 5(d) and 6, insofar as they allege that the judge's findings were not open on the evidence (which was undisputed), have been established. It is unnecessary to deal with the other grounds.
204 The first ground of the notice of contention (see [110] above) refers to the judge's statement that 'it is now impossible to reach a conclusion in a fair manner'[236] as to the dispute over whether Dr Woollard was involved in angioplasty procedures at Royal Perth Hospital over thirty years before, in the 1980s. The intended import of this statement is not clear. Although the judge's language at this point raises the spectre of an unfair trial, his Honour's ultimate finding was that the continuation of the Inadequate Training Claim and the False Representation Claim would be 'so unfairly and unjustifiably oppressive as to constitute an abuse of process',[237] without any mention or finding that a fair trial was not possible. In any event, for the reasons given earlier, there was no finding, or evidence, that there ever existed any Royal Perth Hospital records which may have referred to Dr Woollard's involvement in angioplasty procedures at that hospital. A finding of prejudice arising out of the 'loss' of the Royal Perth Hospital records as a result of delay was not open.
205 Also, it is wrong to characterise the pursuit of the False Representation Claim and the Inadequate Training Claim as, in substance, the commencement by the Board of fresh proceedings in relation to complaints of (alleged) misconduct occurring 30 years earlier. Rather, Dr Woollard, in his response to the original application, asserted that he had 'reached the numbers required for training as suggested by the Cardiac Society guidelines in place at the time' by having carried out at least 200 procedures as primary or secondary operator.[238] Dr Woollard's reliance on his asserted involvement in angioplasty procedures at Royal Perth Hospital necessarily formed a part of the dispute in the original application, given that on his counting, and on his records, he had only participated in a total of 153 procedures at the Mount Hospital whilst training. The judge found that the Board's original application was not an abuse of process. On that unchallenged finding, there is no basis for an inference that the continuation of the Inadequate Training Claim in the amended application, insofar as it covered, in substance, the same disputed facts, itself constituted an abuse of process. The underlying disputed facts would also form part of the substratum of the False Representation Claim. In relation to that claim, it is also to be noted that, in his witness statement filed before instituting the dismissal application, Dr Woollard said that his recollection about his involvement in these matters at Royal Perth Hospital was 'very clear'. As the judge correctly observed elsewhere in his reasons, in Jago, Deane J said that 'the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case'.[239]
206 Finally and in any event, the first ground of the notice of contention is predicated on an assumption that the Board contends, by ground 4, that the judge's 'finding of prejudice in relation to the [Royal Perth Hospital] representation was limited to the indirect prejudice caused by the death of Dr O'Shea'.[240] That assumption is incorrect. The Board's challenge in ground 4 was not 'limited to the indirect prejudice caused by the death of Dr O'Shea'. Once it is recognised that ground 4 of the appeal was not so limited, and ground 4 has been upheld, ground 1 of the notice of contention accordingly proceeds on a false premise. Ground 1 of the notice of contention should be dismissed.
207 In relation to ground 2 of the notice contention (see [110] above), Dr Woollard's submissions are in substance threefold. First, it is submitted that there is a substantial relationship between the other complaints against Dr Woollard made in relation to different patients and the complaint in relation to Patient B, in that they all 'involved angioplasty procedures', and this gives rise 'to the same concerns about fairness that underlie the principle against double jeopardy'.[241] Secondly, it is submitted that Dr Woollard is prohibited until 12 June 2018 from performing angioplasty procedures as a result of the orders made in relation to Patients C and H.[242] Thirdly, it is submitted that the delay in relation to Patient B is 'more egregious when other matters were being resolved by consent'.[243]
208 As to the first submission, the Inadequate Training Claim and the False Representation Claim do not, relevantly, 'involve' angioplasty procedures. They involve the question of whether Dr Woollard had undergone sufficient training to treat Patient B without direct supervision on 15 December 2005, and whether he had falsely misrepresented to the Mount Hospital the extent of his training by letter dated 14 December 2005. The judge's finding, in the context of his consideration of 'double jeopardy' in relation to the other complaints, was to the effect that the False Representation Claim and the Inadequate Training Claim were 'new'.[244] That finding was open to the judge and, in any event, it is not challenged by Dr Woollard in this appeal. The first submission should be rejected.
209 In relation to the second submission, the judge found (again, without challenge), that the False Representation Claim 'goes to Dr Woollard's fitness to practise'[245] and not merely to his fitness to carry out certain procedures. Thus, the finding that Dr Woollard is prohibited until at least 12 June 2018 from conducting angioplasty procedures cannot itself support the inference of abuse of process. Even in relation to the Inadequate Training Claim, the allegation that Dr Woollard performed the angioplasty on Patient B without direct supervision in circumstances where he was insufficiently trained to do so, is a serious one. The establishment of this allegation, at least in combination with the establishment of the other allegations, might properly provide the basis for the imposition of greater sanctions than those already imposed, for the protection of the public. The second submission should be rejected.
210 The third submission is to the effect that the delay found by the judge in the period May 2012 up to the commencement and amendment of the proceedings in the Tribunal in relation to Patient B, was made 'more egregious' by the consideration that within this period, 'other matters were being resolved by consent'. As to that submission, out of the six other complaints referred to by the judge, Dr Woollard did not point to any complaints other than in relation to Patients C and H, which were resolved by consent. The mere finding that two complaints had been resolved by consent in this period cannot support the inference that the prosecution of two new claims, one of which at least, on the judge's finding, went to fitness to practise, constituted an abuse of process. Also, the submission assumes that, based on the judge's findings concerning delay, there was an 'egregious' delay which was made the 'more egregious' by the resolution of the complaints in relation to Patients C and H by consent. However, for the reasons given earlier, the judge's finding of 'extraordinary' delay (or 'egregious' delay as this submission puts it) was not open. The third submission has no merit.
212 In relation to the question of leave, it is in the interests of justice that leave should be granted.[246] Otherwise, the position would remain that the Tribunal has summarily disposed of serious claims which it was obliged to hear and determine on their merits, without first determining, in accordance with law, that they should be dismissed as an abuse of process. Dr Woollard suggested that because the Board was some days late in adhering to an interlocutory timetable for filing affidavits in the Tribunal, leave should be denied on that account, even if the grounds of appeal were made out.[247] That contention was made in the context that the Board was not alone in the late filing of material in the Tribunal, and there was no application by Dr Woollard for an adjournment, or indeed any suggestion that there was any material prejudice to Dr Woollard in the hearing of the matter below. Dr Woollard's contention in this regard lacks any arguable basis upon which to refuse the grant of leave. Leave should be granted.
The court dealing with the appeal may -
(a) affirm, vary, or set aside the decision of the Tribunal; or
(b) make any decision that the Tribunal could have made in the proceeding; or
(c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
214 This court may make substitutive orders under s 105(9) where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. The language of s 105(9) is also wide enough to allow this court to make substitutive orders in other circumstances, although that power must be exercised having regard to the limited nature of the appeal on a question of law only. Thus, for example, if a factual matter were to remain to be decided in consequence of a successful appeal, it may be appropriate for this court to determine the matter upon the uncontested evidence or the primary facts found by the Tribunal: Commissioner for Consumer Protection v Carey;[248] Osland v Secretary, Department of Justice [No 2].[249]
215 On the primary facts found by the judge, further or alternatively on the uncontested evidence, only one conclusion was open to the Tribunal. That was to dismiss the whole of Dr Woollard's application.
216 Accordingly, the following orders should be made:
217 MITCHELL JA: For the following reasons, I agree with Newnes and Murphy JJA that this appeal should be allowed.
218 On 16 December 2005, one of the respondent's patients (Patient B) died from cardiogenic shock after the respondent dissected an artery in an angioplasty procedure performed the previous day. Following a complaint by Patient B's widow on 22 May 2012, the appellant referred
the matter to the State Administrative Tribunal, alleging that the respondent behaved in a way that constituted professional misconduct. That reference was made on 19 December 2014 under s 193 of the Health Practitioner Regulation National Law (National Law).[250] The initial application to the Tribunal alleged that the respondent acted without direct supervision when he was not sufficiently experienced in the procedure to do so. It also alleged that he failed to adequately inform Patient B of the risks of, and other options to, the procedure, and misled Patient B's widow as to the cause of death.
219 In July 2015, the appellant amended its application, relevantly to introduce two allegations. The first, referred to as the 'Inadequate Training Claim', was that the respondent's training in coronary angioplasty was incomplete. It was alleged that that respondent had not met the requirements contained in guidelines published by the Cardiac Society of Australia and New Zealand. Those guidelines concern the minimum number of coronary angioplasty procedures which must be performed in order to complete the necessary training. The second allegation, referred to as the 'False Representation Claim', was to the effect that the respondent had knowingly misled the relevant hospital as to the number of procedures he had performed.
220 On 5 October 2015, the respondent applied to dismiss or strike out the proceedings as an abuse of process. That application, which was heard on 4 November 2015, sought to engage the Tribunal's power under s 47 of the State Administrative Tribunal Act 2004 (WA). On 17 March 2016, the Tribunal, constituted by the President, made orders striking out the amendments which introduced the Inadequate Training Claim and the False Representation Claim. The Tribunal relied on delay in the institution and prosecution of the disciplinary proceedings for which the respondent was not responsible, the prejudice which the respondent had suffered and the absence of any public interest in the allegations being pursued. It concluded that the continuation of that part of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
221 It may be noted that the Tribunal made some observations about the strength of the appellant's case on the False Representation Claim.[251] However, as counsel for the respondent properly conceded, the Tribunal did not base its finding of an abuse of process on the strength of the appellant's case.[252] In these circumstances, it is unnecessary to consider the merits of those observations.
222 The appellant now appeals against the Tribunal's order.
224 The question of whether the Tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, is a question of law.[255]
226 The question before the Tribunal in this case was whether, in all the circumstances, the continuation of the relevant part of the proceedings would (as opposed to could) involve unacceptable injustice or unfairness, or whether the continuation of that part of the proceedings would (as opposed to could) be so unfairly and unjustifiably oppressive as to constitute an abuse of process. A court or tribunal can only be satisfied that continuation of proceedings constitutes an abuse of process in an exceptional or extreme case.[258]
However, after 15 January 2013, no explanation has been offered by AHPRA or the Board for the delays that followed.
It appears from these passages that the period of delay which concerned the Tribunal was from 15 January 2013 to July 2015, when the amended grounds were introduced.
228 The Tribunal made findings about the steps taken by the appellant, which are set out in detail in the reasons of Newnes and Murphy JJA (Joint Reasons). The most significant steps were as follows:
229 The Tribunal said that no explanation had been offered as to the reason for the time intervals between various steps, and appeared to infer from this that there was no explanation.[261]
The [appellant] has not provided any reasons to explain or justify the delay between the filing of the complaint in May 2012 and the filing of the application in January 2015 and the amended application in July 2015. There is nothing to explain or justify the delay.
The finding that the delay from May 2012 and July 2015 was wholly unexplained
231 The finding that the appellant had not provided any reasons to explain or justify the delay for the whole of the period between May 2012 and July 2015 is inconsistent with the primary facts found by the Tribunal as to the steps taken in that period. The finding that there was nothing to explain or justify the delay over that period was also inconsistent with the primary facts which the Tribunal found. Both findings were also inconsistent with the Tribunal's earlier statements that there could be no complaint about the appellant's action up to December 2012,[264] and that the absence of explanation related to the period after 15 January 2013.[265] Those findings could not reasonably be made on the primary facts identified by the Tribunal, and were without any foundation in the evidentiary material before the Tribunal, for the reasons which Newnes and Murphy JJA have explained.
232 Further, the evidentiary material indicated an obvious explanation for the fact that proceedings were not instituted between January 2013 and January 2014. The explanation was that the appellant reasonably required the report of a suitably qualified medical practitioner and that report, when received, raised issues which required further investigation.
233 No doubt the period between writing to Dr Clugston in March 2013 and receiving his report in September 2013 was longer than the Board would have liked. However, it is the common experience of lawyers involved in litigation that expert reports can take longer to obtain than the litigant would desire, particularly when the expert is a medical practitioner who will usually have other more pressing demands on his or her time. The relevant officer followed up the request on two occasions, and there was no evidence that seeking advice from another (no doubt also busy) medical expert would have accelerated the process.
234 Once Dr Clugston's report was obtained, the relevant officer acted promptly to make inquires in relation to the issue of the respondent's training which was raised by that report. Having regard to the matters referred to in the Joint Reasons at [165] - [166], in my view there was no evidentiary basis for the Tribunal's statement that the appellant 'must have been concerned about' the respondent's training 'well prior' to September 2013.[266] When the information was obtained, the relevant officer then sought the decision of the Notification Committee (which not inappropriately sought legal advice before making its recommendation) and the appellant.
235 The appellant also offered an explanation, which the Tribunal appears to have overlooked, for not notifying the respondent of the proposed amended grounds until May of 2015. In part, the new claims depended on the appellant showing that the respondent had not undertaken angioplasty procedures in which he claimed to have participated at Royal Perth Hospital in the 1980s. The material before the Tribunal showed that witness statements from medical practitioners, in which the practitioners denied that the respondent had participated in procedures at Royal Perth Hospital in the 1980s, were dated April and May 2015.
236 Submissions filed by the appellant with the Tribunal identified the respondent's statement, in his letter of 14 December 2005, that he was involved as a secondary operator assisting with angioplasty procedures on well over 100 patients, carried out at Royal Perth Hospital over several years. It was submitted that the appellant did not have any reason to consider that those statements may have been false. The appellant told the Tribunal that it became aware the respondent had not received any training in coronary angioplasty at Royal Perth Hospital when it sought witness statements from specified medical practitioners. The appellant amended the application after obtaining signed statements to that effect.[267]
237 The explanation was given in submissions relating to the respondent's alternative contention that the proceedings should be dismissed for want of prosecution under s 46 of the State Administrative Tribunal Act. The Tribunal had given the parties leave to file submissions on that question (about which no issue is raised in this appeal) after the hearing of the matter (ts 9). However, while the explanation was given in dealing with the s 46 issue, it was an explanation for the delay which the appellant properly placed before the Tribunal.
238 While the explanation was provided in submissions rather than an affidavit, it was an explanation which the Tribunal (which is not bound by the rules of evidence) should have taken into account. It may be thought reasonable for the appellant only to make the serious allegations in the Inadequate Training Claim and False Representation Claim once it had obtained the evidence supporting the claims. But whatever view the Tribunal might have taken of the veracity of the explanation, it cannot reasonably be said that no explanation was offered for that delay.
239 Ground of appeal 1 contends that the Tribunal erred in law in proceeding on the basis that the entire period from 22 May 2012 was unexplained and unjustified. The appellant contends that this was contrary to the Tribunal's own findings of fact; that there was no or no probative evidence for that finding; and that the finding was otherwise not reasonably open on the evidence. For the above reasons, that ground of appeal is established.
Unreasonable delay capable of being established by the evidence
240 There was a period between the appellant's decision to refer the matter to the Tribunal, made on 15 January 2014, and the actual filing of the application on 19 December 2014. Recognising that it would take some time for the appellant to instruct its solicitors and prepare the relevant papers, a period of 11 months does appear to be longer than is reasonably required for that purpose. It was at least open for the Tribunal to adopt that view.
241 The appellant having taken that much time to institute the proceedings, it was also open to the Tribunal to regard the additional five months taken to notify the respondent of the proposed amendment as more than was reasonably required to formulate the final allegations. The appellant's explanation for the delay in the amendment was made only in submissions, and did not indicate when the appellant first became aware that the respondent had not undertaken his claimed training at Royal Perth Hospital.
242 There was, therefore, evidentiary material before the Tribunal capable of satisfying the Tribunal that there was some degree of unreasonable delay in the appellant's institution and prosecution of the proceedings. The Tribunal did not make any finding of fact as to the time in which the appellant ought to have reasonably formulated its allegations. However, the delay could not, in all the circumstances, reasonably be regarded as 'extraordinary' (as the Tribunal did at [220] of its reasons).
243 The only evidence of prejudice resulting from delay was contained in the respondent's affidavit of 7 October 2015. For the following reasons, that affidavit did not establish any substantial prejudice resulting from delay.
244 The first aspect of prejudice on which the respondent relied was the loss of his non-clinical records relating to angioplasty procedures, which he retained for only 5 years after the procedures were performed.[268] However, those notes would have been destroyed well prior to the complaint to the appellant in May 2012, and so any prejudice resulting from the loss of those records could not have been caused by the appellant's delay. In any event, there was no evidence to show that the lost non-clinical records would have been relevant to any matter at issue in the Tribunal proceedings.
245 The second aspect of prejudice on which the respondent relied concerned the death of his former colleague, Dr O'Shea, in March 2015.[269] The respondent deposed that, had the new issues been raised before Dr O'Shea's death, he would have instructed his lawyers to contact Dr O'Shea and request his books and records regarding the relevant procedures, and to obtain a witness statement from him. The respondent said that he was sure that Dr O'Shea would have confirmed the appellant's records to be accurate.[270]
246 However, the accuracy of the appellant's records was not in dispute in the Tribunal proceedings. The appellant's case as to the number of angioplasty procedures which the respondent had actually performed was based on the respondent's clinical records.[271] As such, the appellant's case was based on the accuracy of the respondent's records.
247 The respondent also relied on the reported destruction of Dr O'Shea's records after his death, and his belief that a complete set of Dr O'Shea's angioplasty files and records are no longer available.[272] However, there was nothing to show how those records would have materially added to the clinical records which the respondent had retained, or how the respondent's case was actually prejudiced by the loss of those records.
248 For the above reasons, the evidence before the Tribunal was not capable of establishing that delay by the appellant caused any prejudice relating to the loss of documents and records. Senior counsel for the appellant properly conceded this to be the case in her oral submissions in this appeal (appeal ts 85).
Death of Dr O'Shea and discussions with Dr O'Shea
249 The third aspect of prejudice on which the respondent relied concerned discussions he had with Dr O'Shea.
250 The respondent's affidavit indicated that, prior to the respondent ceasing to perform angioplasties, he had regular meetings with Dr O'Shea and 'we would have discussed' Patient B.[273] The respondent said that he could not recall the content of the discussions and does not know what, if anything, Dr O'Shea remembered about the discussions. The suggestion that anything which Dr O'Shea had to say about the discussions would have in any way assisted the respondent's case was entirely speculative. There was no basis for the Tribunal to conclude that evidence which Dr O'Shea might have given about discussions relating to Patient B would have been relevant to any issue which the Tribunal had to determine. This aspect of the respondent's affidavit does not establish that the absence of evidence of these discussions would have materially prejudiced the respondent's case. Nor does the affidavit establish that Dr O'Shea would have recalled the discussions when the complaint was made, so that delay by the appellant would have deprived the respondent of evidence of those discussions.
251 The respondent's affidavit also indicated that, after he received the initial notification from the appellant in relation to Patient B, he told Dr O'Shea about it. The respondent deposed that Dr O'Shea expressed surprise and spoke to him in a supportive manner. The respondent said that Dr O'Shea 'left me with the impression that he would have given evidence to support the adequacy of my training and experience'.[274] However, it was common ground in this appeal that Dr O'Shea was not uniquely placed to give expert evidence as to what was an adequate level of training and experience, so the respondent has not lost the opportunity to adduce expert evidence about that issue. Indeed, Dr O'Shea's close association with, and consequent lack of independence from, the respondent would be likely to reduce the weight to be given to any expert evidence Dr O'Shea might have given in support of the respondent.
252 That leaves the following paragraph of the respondent's affidavit as the only evidence of prejudice resulting from Dr O'Shea's death:[275]
Dr O'Shea and I also discussed the counting of angioplasty procedures. To the best of my recollection and belief, Dr O'Shea agreed with my approach that one stenosis could count as one procedure.
253 The respondent relied on counting each stenosis performed at the same time as a separate procedure to explain the discrepancy which the appellant alleged existed between the respondent's records and what he had told the hospital. Apart from expressing an expert opinion as to the appropriate counting method (evidence which Dr O'Shea was not uniquely placed to give), there was only one way in which this aspect of Dr O'Shea's evidence could be relevant. A discussion with Dr O'Shea could have affected the respondent's subjective understanding of how procedures were counted. The fact that the discussion had taken place could be relevant to whether the respondent gave the information to the hospital knowing it was false, and for the purpose of misleading the hospital in an attempt to achieve accreditation, as the appellant alleged. In that manner, the fact of the conversation, as opposed to the truth of what was said, could be relevant to the issues the Tribunal had to determine.
254 However, the respondent was not deprived of the opportunity to adduce evidence of the fact and content of this discussion with Dr O'Shea. The respondent can give evidence of that discussion himself. The evidence which the respondent may have lost is not the evidence of the discussion, but Dr O'Shea's corroboration of the respondent's account of that discussion. Of course, it is also now the case that the respondent can give his account of that discussion without fear of contradiction by Dr O'Shea.
255 Even recognising prejudice in the form of loss of corroborating evidence requires a very charitable reading of this paragraph of the respondent's affidavit. That paragraph does not say when the discussion occurred. In particular, the paragraph does not say whether the discussion occurred prior to the respondent providing the impugned information to the hospital in October and December 2005. Nor does the paragraph depose that the respondent relied on what Dr O'Shea said when he provided that information to the hospital. However, even assuming those unstated matters in the respondent's favour, the evidence of prejudice was confined to the loss of corroborating evidence of Dr O'Shea as to the fact and content of a discussion about counting methods.
256 The Tribunal found that Dr O'Shea's evidence as to what he considered a procedure to be, and any discussion with the respondent, 'would have been very relevant to [the respondent's] defence and to the Tribunal's determination of [the respondent's] intent'.[276] It found that 'Dr O'Shea's evidence, which relates to [the respondent's] intention may have been critical to' the respondent's defence.[277] For the reasons noted above, this characterisation of the respondent's evidence grossly overstates the extent of the prejudice which it was capable of demonstrating.
Plainly, [the respondent's] or Dr O'Shea's records would be relevant to [the respondent's] training, the number of procedures he conducted and to the allegation of fraud.
258 This may have been plain to the Tribunal, but I cannot see any reasonable basis for the conclusion in the material before the Tribunal. The Tribunal did not explain the way in which the lost records would be relevant. The material before the Tribunal did not establish that the non-clinical records would have been relevant, or that their loss would result in material prejudice to the respondent's case.
259 The Tribunal's ultimate finding was that the death of Dr O'Shea and the loss of records constitute actual prejudice to the respondent in relation to the amended application.[279] Ground of appeal 2(c), which contends that this finding was not reasonably open on the evidence, is largely established. For the reasons I have explained, that finding was not reasonably open to the Tribunal, except to the extent that the evidentiary material indicated that the respondent had lost the opportunity to call Dr O'Shea to corroborate his account of their discussion referred to at [252] above. Even that limited degree of prejudice depends on a very charitable reading of the respondent's affidavit to conclude that evidence of the discussion would be relevant to the issues the Tribunal had to determine.
260 The Tribunal also observed that there were disputes about the extent to which the respondent had any involvement in assisting with angioplasty procedures in the 1980s. Noting that there were no records, the Tribunal said that '[o]ver 30 years later, it is now impossible to reach a conclusion in a fair manner'.[280] It is far from clear that this conclusion is correct, given that the respondent asserts a 'clear recollection' of the assistance he provided in the 1980s.[281] Difficulty in proof arising from the passage of time is more likely to prejudice the appellant's case, given the onus of proof which the appellant bears. However, regardless of the correctness of the Tribunal's observation, there is no basis for concluding that any prejudice which the respondent does suffer is a result of the appellant's delay. The challenges of establishing what occurred in the 1980s would have existed when the complaint was made in 2012, and the material before the Tribunal did not show that the extent of those challenges had materially increased since that time.
261 The Tribunal found that there was 'no public interest' for the Inadequate Training Claim and the False Representation Claim being pursued against the respondent.[282]
262 In reaching that conclusion, the Tribunal referred to the fact that orders made by the Tribunal in other disciplinary proceedings 'ensure that [the respondent] will not carry out any angioplasty procedures until at least 12 June 2018'. The Tribunal said that the 'conduct complained of completely ceased prior to 12 December 2012'. The Tribunal said that it was difficult to see that there was any public interest in making further orders against the respondent in relation to carrying out angioplasty procedures when those orders would only replicate existing restrictions.[283]
263 However, the Inadequate Training Claim and the False Representation Claim raised matters going well beyond the respondent's competence to undertake angioplasty procedures. The allegations that the respondent was willing to undertake a procedure when he had not received the required training, and to lie to the hospital about the extent of his experience to allow that to occur, calls into question the respondent's fitness to practise medicine. The Tribunal recognised as much in relation to the False Representation Claim.[284]
264 The Tribunal also referred to the fact that the respondent had been in practice for many years and, other than the angioplasty procedures, nothing had come before the Tribunal or its predecessors in relation to his fitness to practise.[285] However, this does not provide a rational basis for saying that there is no public interest in the Tribunal dealing with an allegation calling into question the respondent's fitness to practise when it is made.
265 The Tribunal said that, given the appellant's delay in making the allegations, 'it is very difficult to accept any proposition from the [appellant] that there is a public interest in allowing the matters raised in the [appellant's] amended application to proceed'.[286] However, public interest is not defined by the appellant's attitude to the matters raised by the application. The question of the existence of a public interest in resolving the merits of the allegations was a matter for the Tribunal's assessment.
266 The Tribunal also referred to a statement made by Patient B's widow in her 2012 complaint that:
Perhaps [the respondent] should not be attempting this procedure, or if so, perhaps he should be under supervision.
The Tribunal said that orders already made in other proceedings ensured that the respondent would not be allowed to perform angioplasty procedures until at least 12 June 2018, and that the 'Widow's request has been met'.[287]
267 Reading the 2012 complaint as a whole, it is far from clear that Patient B's widow would have been satisfied with the outcome. However, the satisfaction of the complainant, or lack thereof, with an outcome was not the point of the proceedings. The disciplinary proceedings were concerned with the protection of the public and the maintenance of professional standards, not meeting a request of a particular complainant. The relevant objective of the National Law is:[288]
To provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered;
268 As Meagher JA, with whom other members of the court agreed, said in Health Care Complaints Commission v Do:[289]
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
269 In all the circumstances, it was not reasonably open to the Tribunal to find that there was no public interest in the Inadequate Training Claim and the False Representation Claim being pursued against the respondent. Ground of appeal 5(d), which asserts that error of law, is established.
The Tribunal's abuse of process conclusion was not open
270 In my view, the Tribunal's finding that the continuation of the relevant part of the proceedings would be 'so unfairly and unjustifiably oppressive as to constitute an abuse of process' was not open on the evidentiary material before the Tribunal. At its highest, the evidentiary material established some level of unreasonable delay by the appellant after January 2014 in instituting and prosecuting the Tribunal proceedings, and limited prejudice (in the form of loss of corroborating evidence by Dr O'Shea) resulting from that delay. That evidence was incapable of establishing this to be one of the exceptional or extreme cases in which continuation of that part of the proceedings would (as opposed to could) be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The Tribunal's conclusion was manifestly unreasonable, in the sense that no reasonable tribunal correctly applying the legal test could have made that finding on the evidentiary material before the Tribunal.
271 The appellant has established ground of appeal 6, which contends that it was not reasonably open for the Tribunal to conclude that the maintenance of the two allegations in question was an abuse of process.
272 Section 105(9)(a) and (b) of the State Administrative Tribunal Act empower this court to vary or set aside the Tribunal's decision, and to 'make any decision that the Tribunal could have made in the proceeding'.
273 In Osland v Secretary, Department of Justice (No 2),[290] French CJ, Gummow and Bell JJ recognised that an equivalent provision to s 105(9)(b) authorised an appellate court to make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. The High Court also recognised that the power is wide enough to allow the court to make substitutive orders in other circumstances, but that its powers must be exercised having regard to the limited nature of the appeal (on questions of law).
274 It is also appropriate for this court to substitute the decision which the Tribunal should have made when the evidentiary material before the Tribunal reasonably leaves open only one conclusion. Doing so is consistent with the limited nature of the appeal on a question of law, where the court may determine whether it was open to the Tribunal to make the orders which it did on the material before it.
275 I agree with Newnes and Murphy JJA that there is no merit in the respondent's submission that leave to appeal should be refused by reason of the appellant's late compliance with procedural directions made in the Tribunal.
276 I agree with the orders proposed by the Joint Reasons.
[1] Medical Board of Australia v Woollard [2016] WASAT 26.
[2] See s 193 - s 196 of the Schedule to the National Law Act.
[5] Primary decision [63]. The reference to '16 December 2016' at [63] of the primary decision appears to be an error.
[8] The Tribunal referred to 31 January 2008, but this appears to be a typographical error for 31 July 2008 (affidavit evidence GB 155).
[35] Primary decision [118] - [120].
[48] The parties to this appeal agreed on a chronology of relevant events, including the course of the proceedings before the Tribunal, from which, with reference to the relevant documents filed in the Tribunal, the following section of these reasons is taken.
[54] Primary decision [145] - [147].
[59] Pars 15 - 16 of the amended application, BB 71 - 73.
[60] Pars 17 - 20 of the amended application, BB 73 - 75.
[63] Amended application, par 15; BB 71 - 72.
[64] Amended response, par 13; BB 81 - 82.
[65] Amended application, pars 17 - 22; BB 73 - 75.
[66] Amended response, pars 15 - 17; BB 82.
[67] Primary decision [186] - [187], [192], [199] - [204].
[68] Dr Woollard's witness statement, pars 47, 49, GB 105 and annexed letter dated 14 December 2005; GB 123 - 127.
[69] Witness statement of Dr Clugston, par 43; GB 77 - 78.
[70] For present purposes, it is sufficient to refer only to the 2001 Cardiac Society guideline numbers.
[72] Dr Woollard's witness statement, pars 23 - 25, 55 - 56; GB 99 - 100, 106 - 107.
[76] The Tribunal's decision in relation to the Patient S complaint was Medical Board of Australia and Woollard [2012] WASAT 209; primary decision [87].
[77] The complaints in relation to Patient C and Patient H were the subject of the Tribunal's decision in Medical Board of Australia and Woollard [2013] WASAT 101.
[78] Dr Woollard's affidavit, sworn 7 October 2015, par 4; GB 245.
[79] Dr Woollard's affidavit, sworn 7 October 2015, pars 5 - 6; GB 245.
[80] Dr Woollard's affidavit, sworn 7 October 2015, par 15; GB 247.
[81] Dr Woollard's affidavit, sworn 7 October 2015; pars 17 - 23; GB 247 - 248.
[82] Dr Woollard's affidavit, sworn 7 October 2015; pars 24 - 25; GB 248.
[83] Dr Woollard's affidavit, sworn 7 October 2015; pars 26 - 28; GB 248 - 249.
[84] Dr Woollard's affidavit, sworn 7 October 2015; par 29; GB 249.
[88] Primary decision [237] - [238].
[93] Primary decision [171], [220(b)]. (The judge's reference in [171] to the filing of the original application in 'January 2015' appears to be an error.)
[96] Primary decision [116] - [117] (emphasis added).
[97] Respondent's written submissions, par 41; WB 40.
[102] Primary decision [186] - [189], [198].
[103] Primary decision [205] - [207]. At [205], the use of the word 'not' involves a misstatement of Dr Woollard's evidence and is presumably a typographical or similar error by the judge.
[128] Primary decision [237] - [239].
[129] Herron v McGregor (1986) 6 NSWLR 246, 258.
[130] Health Care Complaints Commission v Do [2014] NSWCA 307 [35].
[131] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [52], [139].
[132] BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 [124] - [125]; Woollard v Medical Board of Australia (sitting as a Performance and Professional Standards Panel) [2016] WASCA 151 [53] - [54]; Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132, 157.
[133] Primary decision [13], in which the authority for the proposition was said to be found in Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 [28] (sic [34]), [56].
[134] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 395. See also Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [8].
[135] Gill v Walton (1991) 25 NSWLR 190.
[136] Walton (392 - 393), (395 - 396).
[139] Herron v McGregor (1986) 6 NSWLR 246.
[140] Gill (197); Herron (265 - 266).
[149] Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 31, 76.
[150] Jago (33) (Mason CJ), (55 - 56) (Deane J) and (77 - 78) (Gaudron J).
[151] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [89].
[153] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 286.
[154] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [25].
[155] R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 [23] - [24]; TS v R [2014] NSWCCA 174 [1].
[156] Jago v District Court of New South Wales (1988) 12 NSWLR 558, 566.
[157] Subramaniam v The Queen [2004] HCA 51; (2004) 79 ALJR 116 [25]; Jago (50).
[158] Jago (30 - 31), (33 - 34) (Mason CJ) and (56 - 58), (60) (Deane J).
[161] Jago (33) (Mason CJ), (60 - 61) (Deane J).
[162] Jago (56), (60 - 61) (Deane J).
[163] Jago (34), (60), (76); Walton (392); Edwards [34]; El Bayeh v The Queen [2011] VSCA 44; (2011) 31 VR 305 [27].
[165] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (529).
[166] R v Carroll [2002] HCA 55; (2002) 213 CLR 635 [73]; Batistatos [7]; Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334; (2015) 90 NSWLR 595 [37].
[167] House v The King [1936] HCA 33; (1936) 55 CLR 499.
[168] Commissioner for Consumer Protection v Carey [2014] WASCA 7 [72].
[169] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [91].
[170] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355.
[175] New York Properties Pty Ltd v Federal Commissioner of Taxation [1985] FCA 304; (1985) 61 ALR 345, 354.
[176] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [57].
[178] Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, 360.
[179] Edge Visionary Living Pty Ltd v Nairn [2016] WASCA 211 [37] - [38].
[181] Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 [24] - [27], [108].
[182] Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547, 557 (Mason JA).
[183] Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 1521; (1995) 59 FCR 6, 16.
[184] Primary decision [67] - [69].
[185] Primary decision [171], [220(a)], [220(b)].
[188] Primary decision [97] - [98].
[190] Primary decision [113] - [114].
[191] Primary decision [129], [134].
[193] Primary decision [116] - [117].
[195] Primary decision [153] - [160].
[196] Smith v Bank of Western Australia Ltd [2010] WASCA 15.
[198] Edwards [14], [22], [29].
[201] Medical Board of Australia and Woollard [2012] WASAT 209 [114] - [116].
[202] Medical Board of Australia and Woollard [2013] WASAT 101 [3.44.1] - [3.44.4] (regarding VR 31 of 2012).
[203] Medical Board of Australia and Woollard [2013] WASAT 101 [3.59.1] - [3.59.3], [3.59.9] (regarding VR 182 of 2012).
[204] Medical Board of Australia and Woollard [2013] WASAT 101 [3.44.5] (regarding VR 31 of 2012).
[205] Medical Board of Australia and Woollard [2013] WASAT 101 [3.59.4] - [3.59.8], [3.59.10].
[210] Although an explanation was given in written submissions by the Board. See Board's written submissions, 30 November 2015, par 19; BB 126.
[211] See, for example, Jago v District Court of New South Wales (1988) 12 NSWLR 558, 566.
[213] Primary decision [163] - [164].
[216] Primary decision [163] - [164].
[218] Primary decision [186] - [189], [198].
[219] Dr Woollard's written submissions, par 51; WB 42.
[220] Dr Woollard's written submissions, par 51; WB 42.
[222] Primary decision [199], [203], ]209] - [210].
[223] Primary decision [206] - [207].
[225] Amended Response Statement par 16(b); BB 82.
[228] Primary decision [196] - [197].
[233] Primary decision [233] - [234].
[235] Primary decision [43] - [46].
[238] Response statement par 11(b); BB 66.
[239] Primary decision [180]; Jago (60).
[246] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] - [18].
[247] Respondent's submissions par 11, WB 33.
[248] Commissioner for Consumer Protection v Carey [2014] WASCA 7 [68], [166], [169], [170].
[249] Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 [20].
[250] Which is scheduled to the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
[251] Medical Board of Australia and Woollard [2016] WASAT 26 (Primary decision) [190] - [197].
[252] Respondent's written submissions, par 59 (WB 44).
[253] Section 105(2) of the State Administrative Tribunal Act; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53].
[254] This question of law is raised by ground 6, to which other grounds are subsidiary.
[256] R v Edwards [2009] HCA 20; (2009) 83 ALJR 717.
[257] Walton v Gardiner (1993) 177 CLR 378.
[261] Primary decision [141], [153].
[267] Paragraphs 18 - 20 of the appellant's submissions dated 30 November 2015 (BB 125 - 126).
[268] Affidavit of Keith Victor Woollard sworn 7 October 2015, par 25.
[269] Affidavit of Keith Victor Woollard sworn 7 October 2015, par 3.
[270] Affidavit of Keith Victor Woollard sworn 7 October 2015, pars 22 and 23.
[271] Paragraphs 15.6 and 15.7 of the appellant's amended grounds of application.
[272] Affidavit of Keith Victor Woollard sworn 7 October 2015, par 24.
[273] Affidavit of Keith Victor Woollard sworn 7 October 2015, par 26.
[274] Affidavit of Keith Victor Woollard sworn 7 October 2015, par 28.
[275] Affidavit of Keith Victor Woollard sworn 7 October 2015, par 27.
[281] Paragraph 25 of the respondent's witness statement in the Tribunal proceedings (GB 99).
[288] Section 3(2)(a) of the National Law.
[289] Health Care Complaints Commission v Do [2014] NSWCA 307 [35].
[290] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [20], referred to in Commissioner for Consumer Protection v Carey [2014] WASCA 7 [68], [166] and Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [74]. See also Osland [73] - [76] per Hayne and Kiefel JJ.
(2011) 31 VR 305
(2015) 90 NSWLR 595
(1991) 25 NSWLR 190
(1936) 55 CLR 499
(1988) 12 NSWLR 558
(1989) 168 CLR 23
(2010) 241 CLR 390
(1985) 61 ALR 345
(2010) 241 CLR 320
(2007) 33 WAR 361
(2009) 83 ALJR 717
(1994) 181 CLR 251
(1995) 59 FCR 6
(2001) 202 CLR 439
(1993) 177 CLR 378
(1990) 170 CLR 321
(1949) 78 CLR 353
(2006) 226 CLR 256
(1982) 59 FLR 132
(1986) 6 NSWLR 246
(2011) 244 CLR 427
(2004) 79 ALJR 116
(2015) 256 CLR 507
(1992) 174 CLR 509
(2002) 213 CLR 635