Professions - Medical practitioners - Medical Act 1894 (WA) - Withdrawal of applications by vocational regulatory body - Whether practitioners entitled to costs

Medical Act 1894 (WA), s 13(1)

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(4), s 167

The applications for costs of the practitioners in each case is dismissed. Each party shall bear its own costs.

Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90(S)

Medical Board of Western Australia and Roberman [2005] WASAT 81(S)

Motor Vehicle Industry Board and Dawson [2006] WASAT 8

Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206

Callaghan v The Queen [1952] HCA 55; (1982) 87 CLR 115

Ex parte St Vincent & Ors; Medical Board of WA (1989) 2 WAR 279

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Jager v Medical Complaints Tribunal (2004) TASSC 58

Jemielita v The Medical Board of Western Australia (Unreported; SCWA (Owen J); 13 November 1992; Lib No 920584)

Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303

Legal Practitioners Complaints Committee and Benari [2005] WASAT 213(S)

Medical Board of Western Australia and Roberman [2005] WASAT 81

Metropolitan Bank v Pooley (1885) 10 App Cas 210

Ong v the Dental Board of Western Australia (Unreport; SCWA (Murray J); 25 August 1998; Lib No 950442)

Pillai v Messlter (No 2) (1989) 16 NSWLR 197

Randall and Town of Vincent [2005] WASAT 147

Re The Medical Board of Western Australia; Ex parte 'P' [2001] WASC 103; (2001) 24 WAR 127

Sakalo v The Medical Board of Western Australia [2002] WASCA 178

Srna v The Medical Board of Western Australia (2004) WASCA 198

Veltmen and The Legal Practice Board [2005] WASAT 334

Walton v McBride No CA 40436/96 Inferior Courts and Tribunals (12 October 1994)

1 In December 2004 the Medical Board of Western Australia issued notices of inquiry against each of the practitioners pursuant to the Medical Act 1894 (WA).

2 The notices of inquiry alleged that each practitioner had been guilty of gross carelessness or incompetence in managing and/or attending the labour of a patient in particular ways.

3 On 1 January 2005 the State Administrative Tribunal came into operation. Subsequently, in October 2005, the matters the subject of the notices of inquiry became the subject of applications to the Tribunal.

4 In the Tribunal, each practitioner denied that he had acted in any way that constituted gross carelessness or incompetence or that he was obliged to maintain records or make other notes in the manner alleged by the Medical Board.

5 The practitioner's obtained their own expert medical evidence and filed it in the Tribunal. This expert evidence suggested that the practitioners had not acted with gross carelessness or with any degree of incompetence in their care and management of the patient concerned.

6 In light of the expert evidence provided on behalf of the practitioners, the Medical Board reconsidered the prosecution of the applications against the practitioners and applied to the Tribunal for leave to withdraw the proceedings in each case. The Tribunal granted that leave and the proceedings in each case were withdrawn.

7 As a result of the withdrawal of the proceedings, each practitioner applied for costs against the Medical Board.

8 The Tribunal determined that in particular circumstances of the case, costs should not be awarded against the Medical Board. The Tribunal recognised, as it has in a number of cases, that where proceedings brought against a person by a vocational regulatory body does not result in a finding of guilt against that party, the vocational regulatory body will not be liable to meet the costs of that party unless it can be shown that there was no reasonable basis for the commencement of the proceedings, or that the vocational regulatory body acted otherwise than in good faith.

9 In this case, there is no evidence that the Medical Board had acted without reasonable cause in the first instance or without good faith.

10 The Medical Board initially commenced proceedings by way of notices of inquiry under the Medical Act 1894, at a time before the State Administrative Tribunal became responsible for hearing and determining allegations of professional misconduct. At that time, if it "appeared" to the Medical Board that a practitioner "may" contravene professional standards, the Medical Board was obliged to set up an inquiry. That is what happened here, the Medical Board was given a report following a major inquiry into obstetric and gynaecological services at King Edward Memorial Hospital, from which the Medical Board formed the opinion that the practitioners "may" have contravened relevant professional standards.

11 Taking into account the circumstances in which the Tribunal ordinarily exercises its discretion as to costs, and the fact that the Medical Board instituted the proceedings under the terms of the Medical Act 1894 as they applied prior to the commencement of the Tribunal, the Tribunal decided that costs should not be awarded against the Medical Board in favour of the practitioners.

12 The issue in this matter is whether the practitioners, Dr Roberman and Dr Love, are entitled to a costs order against the Medical Board of Western Australia (the Medical Board) following the orders made by the Tribunal on 28 February 2006 and 14 March 2006 granting the Medical Board leave to withdraw applications against each practitioner.

13 In December 2004, prior the State Administrative Tribunal coming into operation, the Medical Board served each practitioner with a notice of inquiry under the Medical Act 1894 (WA) with a view to the Medical Board conducting such inquiry.

14 In October 2005 the Board effectively transferred these proceedings to the Tribunal pursuant to the State Administrative Tribunal Act 2004 (WA), with a view to the Tribunal hearing and determining the allegations made in the notices of inquiry. Each application alleged the practitioner may have been guilty of gross carelessness or incompetence in managing and/or attending the labour of a patient by failing to keep clear and accurate and or/adequate records in respect of the care of his patient, and in failing to keep clear, accurate and/or adequate records in relation to the patient. Particulars of the allegations were provided with the application in each case.

15 Each practitioner filed a response statement in the Tribunal in which he responded in some detail to the particularised allegations of the Medical Board. Each denied that he was obliged to make any notes of a particular attendance on the patient or a particular discussion or of the surgery; and denied that he was grossly careless or incompetent in his care and management of the patient.

16 The Tribunal then made directions in each proceeding that required the parties to file Statements of Issues, Facts and Contentions and also to attend a compulsory conference in December 2005. On 6 December 2005, prior to the compulsory conference scheduled for 7 December 2005, the solicitors for the practitioners filed a substance of expert evidence concerning the relevant obligations of Dr Roberman in the circumstances alleged against him.

17 On 7 December 2005, following the compulsory conference, the Tribunal member who convened that conference adjourned the Roberman matter for directions on 20 December 2005 and adjourned the conference in the Love matter to 7 March 2006.

18 On 20 December 2005, the Tribunal ordered that the Medical Board file and serve statements of expert evidence by 7 February 2006 and adjourned the directions hearing to 28 February 2006.

19 On 28 February 2006, in light of the medical evidence it had by then obtained, the Medical Board applied for leave to withdraw its application against Dr Roberman.

20 In those circumstances the Tribunal on 28 February 2006 gave the Medical Board leave to withdraw the application and ordered that the Roberman application withdrawn. On 14 March 2006 the Tribunal gave the Medical Board leave to withdraw the Love mater and that matter was withdrawn.

21 Each practitioner on was then given leave to apply for costs and other directions were made providing for the parties to file written submissions on the questions of costs. The Tribunal ordered that the costs applications would be decided on the documents.

22 The parties acknowledge that under s 87(1) of the State Administrative Tribunal Act 2004 (WA) the parties bear their own costs in a proceeding in the Tribunal on the absence of an order of the Tribunal to the contrary. However, under s 87(2) the Tribunal has a broad discretion to grant costs, as explained below.

23 The Tribunal in a number of decisions has now explained the circumstances in which costs may be awarded. In Medical Board of Western Australia and Roberman [2005] WASAT 81(S) at [30] the Tribunal, of which Deputy President Judge Chaney was the presiding member, observed that while the question of the award of costs is a matter of discretion in every case, where a regulatory authority successfully brings a complaint of misconduct, this will usually provide a strong case for the exercise of the costs discretion in favour of the regulatory body.

24 However, in Medical Board of Western Australia and Roberman the Medical Board was unsuccessful in relation to some of the allegations made against the practitioner and, for that reason, the Tribunal, in its discretion, considered that it was appropriate for the practitioner only to pay one third of the costs of the Board.

25 In Motor Vehicle Industry Board and Dawson [2006] WASAT 8, the Tribunal, of which the President Justice Barker was the presiding member, explained at [47]:

"The decision in the Roberman case does not support the view, however, that an affected person in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful. If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though "success" cannot be guaranteed. Consequently, the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful."

26 Section 87(4) of the State Administrative Tribunal Act 2004 requires the Tribunal to have regard to particular factors, when the question of costs arises in the Tribunal's review jurisdiction, namely:

(a) Whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits; and

(b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.

27 In Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90(S) the Tribunal made an order for costs against the respondent local government in a proceeding in the Tribunal's review jurisdiction where the Tribunal considered that, in the circumstances, the initial application had not been considered on its merits: see [24].

28 In Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 the Tribunal, constituted of the President Justice Barker, dealt with an application for costs in another matter in the review jurisdiction of the Tribunal. At the hearing the applicant claimed costs on the basis that the relevant decision about which the applicant was aggrieved was based on false information and that an officer of the Department of Fisheries was effectively "coerced" to alter his position by another departmental officer. If these allegations had been made out then the question would have arisen as to whether the decision-maker had genuinely attempted to make a decision on its merits. The Tribunal noted that if this could have been established then the case for costs would have been made out: see [37]. However, the Tribunal found that these allegations were without foundation.

29 Having regard to the general principles arising in cases such as these, the practitioners contend that the applications made against them were "baseless" and made without the benefit of any supporting evidence. The practitioners say that only when the Medical Board sought expert evidence that failed to support the applications did it seek to withdraw them. The consequence, the practitioners contend, is that the Medical Board acted contrary to the general aims of the State Administrative Tribunal Act 2004 set out in s 9, particularly the objective to act as speedily and with as little formality and technicality as is practicable, and to minimise the costs of the parties. They say the Board failed to take any steps at the early stages of the proceedings to minimise costs and thereby occasioned unnecessary costs to the parties and the Tribunal.

30 In defence of its position, the Medical Board point out that the allegations made in the applications against the practitioners were referred to the Medical Board during 2002 following a major inquiry into obstetric and gynaecological services at King Edward Memorial Hospital in the period of 1990 - 2000.

31 The solicitors for the Medical Board say that on or about 24 August 2004 - at a time prior to the establishment of the State Administrative Tribunal, when the Board itself was authorised to hold inquiries under the Medical Act 1894 (WA) - the Board formed opinions pursuant to s 13(1) of the Medical Act 1894 as it then applied, and as a result proceeded to conduct inquiries into the conduct of the practitioners.

32 The solicitors for the Medical Board say that, at that time, under the Medical Act as it then applied, the Medical Board was obliged to hold such an inquiry upon forming those opinions. It refers in this regard to what Murray J said in Re The Medical Board of Western Australia; ex parte 'P' [2001] WASC 103; (2001) 24 WAR 127 at [37] - [38]:

"In my opinion there is no decision of the Board to hold an inquiry. It merely forms the opinion to which s 13(1) refers. Then by that subsection an inquiry must be held. The Board is under an obligation to do so and its coercive or disciplinary powers are then activated at the conclusion of the inquiry if, in terms of s 13(3) the Board is satisfied of the existence of any matter referred to in subs (1)(a), (b), (c) or (d), or in respect of subs 1(e), the Board is satisfied of the incapacity to practice in terms of subs (6g).

That satisfaction in every case will result from the Board's consideration of the materials placed before it at the inquiry. The formation of the opinion referred to in s 13(1) can play no part in the process of achieving affirmative satisfaction as a result of the inquiry held. ..."

33 The Medical Board contends that having regard to information then put in front of it in late 2004, it formed the opinion that the practitioners may have a case to answer and thus it was obliged to issue the notices of inquiry, which it did in December 2004.

34 On 1 January 2005, the State Administrative Tribunal came into operation under the State Administrative Tribunal Act 2004 and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA). Later, pursuant to s 167 of the State Administrative Tribunal Act 2004, the notices of inquiry were transferred to the State Administrative Tribunal and became applications in the Tribunal by the Medical Board against the practitioners. Thereafter, the applications proceeded in accordance with the directions earlier referred to.

35 The Medical Board further submits that the various allegations made by the practitioners about the circumstances in which it commenced and maintained the proceedings in the Tribunal are without foundation; and that no evidence has been led to support the allegations.

36 The Medical Board explains that once the proceedings were transferred to the Tribunal and on obtaining further expert opinion, it re-evaluated all of the evidence in light of the expert reports and formed the view that the applications should be withdrawn. The Medical Board submits that this decision indicates the Medical Board's preparedness to exercise its statutory powers in favour of the practitioners and negates any suggestion that it acted with bad faith. It says this is also evidence that the Medical Board executed its statutory duties correctly.

37 In any event, the Medical Board says that, even if it had relied on its own expertise in making the withdrawal decisions, there would still be no basis for the allegations made by the practitioners.

38 The Tribunal, in the circumstances of this case, does not consider that it is appropriate to make any costs order in favour of the practitioners on the withdrawal by the Medical Board of the applications of the practitioners. The circumstances of this case, as outlined above, are that the Medical Board, under a different statutory regime that applied prior to 1 January 2005 when the State Administrative Tribunal was established, formed the opinion that each practitioner "may be guilty" of the conduct complained of. As a result, the Medical Board had a statutory obligation to conduct an inquiry under the Medical Act 1894, as it then applied. Subsequent to the establishment of the State Administrative Tribunal, and pursuant to the transitionary provisions set out in s 167 of the State Administrative Tribunal Act 2004, the Medical Board was obliged to transfer the proceedings commenced by notices of inquiry against the practitioners, to the Tribunal. In the course of considering expert evidence put on behalf of the practitioners, the Medical Board then obtained expert advice to help guide it in deciding whether or not to maintain the proceedings against the practitioners. In the light of the expert evidence it received, the Medical Board decided to apply to withdraw the proceedings against the practitioners.

39 While it can be debated whether the Medical Board may have sought such expert advice earlier than it did, no particular conduct on the part of the Board is demonstrated such as to attract an order of costs in favour of the practitioners. The Medical Board merely performed its statutory functions in commencing the proceedings by notices of inquiry prior to 1 January 2005, and maintained the proceedings as it was obliged to do by transferring them to the Tribunal during 2005, and then, in the proper consideration of the cases, took expert evidence. Then, in the light of such evidence it applied to the Tribunal to withdraw the proceedings in each case. These circumstances do not allow of a finding that the Medical Board initially commenced the proceedings without reasonable cause or commenced or maintained the proceedings in bad faith. In those circumstances, there can be no proper criticism made of the conduct of the Medical Board in applying for leave to withdraw the proceedings against the practitioners.

40 Nonetheless, it is a matter of regret that for a period of time the practitioners have been subject to the proceedings and for that period have been obliged to deal with the proceedings by obtaining legal representation and incurring costs and expense. However, that does not mean these are cases that call for an award of costs against the Medical Board.

41 The Tribunal notes that in the submissions lodged on behalf of the Medical Board, a further submission is made that the practitioners' applications for costs should be considered themselves to be an abuse of process because they were made without referring to or producing any supporting evidence.

42 There is no need for the Tribunal to spend any time in considering the authorities referred to in these submissions. In circumstances where a party such as the Medical Board withdraws proceedings against a practitioner, it is plainly open to the practitioner to apply for costs and that is what happened here. The Tribunal does not consider that the practitioners can be criticised for making their applications for costs. From the practitioners' points of view, they feel hard done by in that, they believe, if the Medical Board had obtained expert evidence earlier, they would not have been obliged to maintain their defence of the proceedings brought against them and would not have incurred the costs they have incurred.

43 In any event, the Tribunal has ruled that the circumstances in which these proceedings were commenced and maintained is entirely explicable, as is the subsequent withdrawal by the Medical Board of the proceedings. While the practitioners are entitled to make their claim for costs, the Tribunal has ruled that costs are not payable in the particular circumstance in which these proceedings were commenced. Nor should the practitioners be penalised by a costs order for making their claims for costs.

44 It follows that neither the Medical Board is liable to pay costs nor are the practitioners obliged to pay the Medical Board's costs of defending the costs applications.

45 In these circumstances, the Tribunal orders that:

1. The application for cost of the practitioner in each case is dismissed.

2. Each party shall bear its own costs in the proceedings.

I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE M L BARKER, PRESIDENT