Plaintiff v Defendant

2 The notifications referred to publications in The Age newspaper which had reported that Mr Wilks, then the Chief Executive Officer of Powerlifting Australia, had been accused of sexual harassment, and of a sexual relationship involving a power imbalance, in the context of his involvement with the Melbourne University Weightlifting and Powerlifting Club. The Board determined that the notifications and Mr Wilks' conduct should be investigated,[2] but subsequently decided that the investigation of Mr Wilks should be put on hold pending the resolution of a civil defamation proceeding brought by him in the County Court of Victoria against Ms Dori Qu, a person identified in the notifications as having been the subject of sexual harassment and other misconduct by Mr Wilks.[3] It is contended by Mr Wilks in this proceeding that the decision of the Board was ultra vires its powers under the National Law; alternatively that it was otherwise affected by jurisdictional error by reason of it being affected by a failure to take into account relevant considerations, or legally unreasonable.

3 The factual accuracy or otherwise of the matters the subject of the notifications remains unresolved and does not fall for determination in this application. It suffices for present purposes to say that the plaintiff's evidence was that he had a consensual sexual relationship with Ms Qu in the period March to May 2021, and that he denied the allegations of sexual harassment or sexual assault which were the subject of notifications.[4]

4 The essential elements as to the sequence of procedural events relevant to the judicial review application, including making of the notifications, the investigation and the Board's ultimate decision, were not the subject of disagreement as between the parties.

5 The plaintiff is formally qualified as a psychologist, and has been a registered psychologist since 1985, when he commenced private practice. He is currently registered with the Board.[5]

6 The plaintiff has also been engaged as an independent medical examiner (IME) by the Victorian WorkCover Authority (currently known as WorkSafe), since 1985.[6] The plaintiff's unchallenged evidence was that from 2016 until 2020, when his work as a psychologist stopped due to government restrictions imposed due to the COVID-19 pandemic, he was almost exclusively reliant for income on his position as an IME. In December 2021, following a downturn in private referrals to his practice following the pandemic, he began exclusively to take WorkSafe referrals to act as an IME.[7]

7 The plaintiff has a history of involvement in sport as an athlete, coach, and sporting administrator.[8] At the times relevant to the matters the subject of the notifications to the Board, he was Chief Executive Officer of Powerlifting Australia.[9] He also coached powerlifting from premises at Melbourne University. In this context he met Ms Dori Qu, who was a member of the Melbourne University Weightlifting and Powerlifting Club.[10]

The complaints by Ms Qu and the articles in The Age notifications to AHPRA

8 On 6 July 2021, the plaintiff became aware of a complaint written by Ms Qu addressed to a manager of Powerlifting Australia.[11] The complaint referred to reporting a 'sexual harassment case', and described the plaintiff as having subjected Ms Qu to sexual acts to which she did not consent, and acts of sexual harassment.[12] The complaint was described by the plaintiff as containing 'several statements concerning me which were false and highly defamatory'.[13]

9 Later in July, the plaintiff discovered that Ms Qu had made a complaint to the same effect to Melbourne University. The plaintiff, concerned about the impact these complaints would have on his reputation, issued defamation proceedings against Ms Qu in the County Court on 15 July 2021.[14]

10 On 8 August 2021, The Age newspaper published an article entitled 'Weightlifting head coach sues athlete who alleged sexual harassment'.[15] Ms Qu was quoted in the article as stating that the plaintiff began making sexual advances to her in late March 2021, and that he would ask her for 'sexual favours'.[16] The article conveyed Ms Qu's description of having been subjected to unwanted sexual acts.

11 Further articles referring to Ms Qu's complaints against the Plaintiff were published by The Age on 10 August 2021, titled 'Weightlifting coach steps down after taking legal action against sex harassment accuser';[17] 15 August 2021, titled 'How one woman's story shook powerlifting and toppled its most influential figure';[18] 26 February 2022, titled 'Weightlifting coach permanently banned from Melbourne University'[19] and 10 April 2022, titled 'Powerlifting body reinstates CEO after investigating harassment claims'.[20]

The complaints by Ms Qu and the articles in The Age notifications to AHPRA

12 On 15 August 2021, AHPRA received two confidential notifications about the plaintiff. One of those notifications (given identification number 00475590 by AHPRA)[21] stated the following:

The below articles came to my knowledge this week alleging improper conduct by my former powerlifting coach Robert Wilks, a registered psychologist, powerlifting coach and CEO of Powerlifting Australia. The claims relate to sexual assault and manipulation, including the victim saying "no" and Mr Wilks penetrating her despite this. Although this investigation is ongoing, Mr Wilks is quoted in the below articles admitting to a sexual relationship with someone under his professional influence as a coach. I have concerns about the morals and ethics of a person who can behave this way within one profession, as it may carry over into his role as a clinical psychologist with vulnerable clientele.[22]

13 The articles referred to are The Age articles published on 8 August 2021 and 15 August 2021.

14 The other notification of 15 August 2021 (numbered by AHPRA 00475578)[23] stated, referring to the article of 15 August 2021:

Given the information in the linked article: ... I have concerns this man is not a fit and proper person to hold registration in the role of psychologist.[24]

15 On 16 August 2021, AHPRA received a third confidential notification (Numbered by APRHA 00475586)[25] which stated:

Robert Wilks is registered as a clinical psychologist. He is also a weightlifting coach and part of the organisation, Powerlifting Australia. In the latter case, there have been allegations of sexual harassment and sexual assault made against him by athletes. The matter is currently under investigation. Whilst he denies these allegations, Wilks has admitted to having an intimate relationship with an athlete that he coached ... I have made this report because this man has an alleged pattern of predatory behaviour. As a clinical psychologist, I worry that he could harm patients.[26]

16 That notification then referred to the articles in The Age dated 8 August 2021, 10 August 2021 and 15 August 2021.

17 On 12 August 2021, a lawyer from the University of Melbourne wrote to the plaintiff's solicitor to advise that the University had received a complaint from a student who was a member of the Melbourne University Weightlifting and Powerlifting Club, alleging that the plaintiff sexually harassed her. The University stated that it had appointed a barrister as an investigator to investigate the allegations made by the student, and that the plaintiff was temporarily suspended from accessing the University facilities pending the investigation.[27]

18 The plaintiff declined to participate in the investigation.[28] On 11 February 2022, Melbourne University informed the plaintiff by letter that it had concluded the investigation. The letter stated that the findings of the investigator were that:

1. Based on Dori Qu's evidence, which Mr Lacy concluded was credible:

(a) you engaged in a relationship of a sexual nature with Dori Qu whilst you were a coach of Dori Qu at MUWPC and she was a student of the University; and

(b) there was a significant power imbalance between yourself and Ms Qu - you being 67 years of age and her 23 years (that is, 44 years your junior). Further you were Ms Qu's powerlifting coach and you cultivated a relationship with Ms Qu by using your status or position in the MUWPC to support her in a disagreement with the Club and then suggested Ms Qu was indebted to you for the support; and

1. As to whether you sexually harassed Dori Qu, it is indeterminate due to lack of evidence. However, based on Dori Qu's evidence, you have a case to answer.

Having considered Mr Lacy's findings, the University has determined that your conduct in engaging in a sexual relationship with a student in circumstances where there was a significant power imbalance falls well below of [sic] the standards expected by the University of those involved in or part of its community, in this case as a coach of a student at a University affiliated club that uses University premises and or facilities.[29]

19 The University determined to exclude the plaintiff from using all University premises and facilities and participating in any activities associated with the University, effective immediately.

20 In or around September 2021, in response to Ms Qu's complaint to Powerlifting Australia relating to the plaintiff, the board of Powerlifting Australia resolved to appoint an independent third-party, Mr Rowland Legg, to conduct an investigation into the complaint.[30]

21 On 15 June 2022, the plaintiff received a copy of the report, which included summaries of interviews with several witnesses, noted that several people had refused to be interviewed, and contained a summary of findings. Mr Legg observed in particular that Ms Qu had been contacted by a representative of Powerlifting Australia to explain that an independent investigator had been engaged by Powerlifting Australia to conduct an independent investigation, and that 'Ms Qu's reply was that she was not prepared to discuss the matter until the legal action was resolved.' Mr Legg's conclusions included that:

The allegations made against Wilks in Qu's letter of complaint are assessed by the investigator, considering all available evidence, as being unable to be substantiated.[31]

WorkSafe review of the plaintiff's recognition as IME

22 On 18 May 2022, WorkSafe wrote to Mr Wilks advising him that it was suspending his approval to act as an IME under the Workplace Injury Rehabilitation and Compensation Act 2013, effective 20 May 2022.[32] The letter referred to the five articles in The Age and stated:

WorkSafe is not aware of the veracity of the serious allegations within these articles, however in accordance with clause 29 of the declaration a suspension pending a final decision is required due to the risk to the wellbeing of injured workers and to WorkSafe's reputation.

In accordance with clause 28(d) of the IME Declaration, WorkSafe has suspended your approval pending a final decision to act as an IME on the following grounds:

1. You have not complied with the IME declaration you signed on 25 June 2021;
2. Your conduct is, in the reasonable opinion of WorkSafe, likely to harm the reputation of WorkSafe Victoria;
3. You may have failed to notify immediately of a complaint in compliance with WorkSafe's service standards.[33]

23 The plaintiff's solicitor made submissions to WorkSafe as to why his IME status should not be suspended.[34] WorkSafe then advised the plaintiff, by letter to his solicitor dated 17 June 2022, that it had reviewed his submissions and supporting documents, and that WorkSafe:

... has determined that Mr Wilks approval to act as an IME should continue to be suspended while the AHPRA investigation is pending.

Prior to making a final decision on the proposed revocation of Mr Wilks IME approval, WorkSafe will conduct a review of all the circumstances. WorkSafe is unable to make a final decision until it has considered all material it considers relevant. WorkSafe requests that Mr Wilks provides the outcome of the AHPRA investigation so that it may finalise its consideration of whether his status as an IME should be revoked.

WorkSafe's review of Mr Wilks status [as] IME is independent to the AHPRA investigation and reserves the right to revoke Mr Wilks IME approval regardless of the AHPRA investigation outcome, for instance upon reputational grounds.

Before WorkSafe makes its final decision, any submission or comments made in response to this letter will be taken into account.

We confirm that Mr Wilks has been listed as unavailable for IME assessments, with no end date having been provided.[35]

24 There was evidence that there had been a Victoria Police investigation into Ms Qu's complaint, but that it had been closed in July 2022, with the police not pursuing charges against Mr Wilks due to lack of evidence.[36] On 19 July 2022, Victoria Police wrote to AHPRA advising that its investigation into Mr Wilks had been closed due to insufficient evidence.[37] The evidence tendered by the Board established that the AHPRA investigator had received material from Victoria Police and had reviewed it at some time prior to 14 November 2022,[38] but it was unclear from that evidence what information had been supplied to the investigator by Victoria Police, or what if any information from the police investigation had then been provided to the Board.

The AHPRA investigation and immediate action notification

25 After receiving the three notifications, on 30 August 2021, an officer of AHPRA recommended to the Board that the plaintiff be investigated under s 160(1) of the National Law. On 31 August 2021, a delegate of the Board determined that the plaintiff would be investigated.[39]

26 The Board did not at that time notify the plaintiff of the investigation, and it was not until 11 April 2022 that AHPRA wrote to the plaintiff's solicitor to advise the plaintiff of the receipt of the notifications and the investigation.[40]

27 By letter dated 14 April 2022 AHPRA then notified the plaintiff that the Board 'proposed to take immediate action in relation to [the plaintiff's] registration'.[41]

28 The plaintiff made a written submission to the Board about the proposal for immediate action, which was accompanied by a number of documents including documents relating to the University of Melbourne and the Powerlifting Australia investigations.[42]

29 The submissions referred to the fact that 'Victoria Police have not charged, or sought to interview Mr Wilks', discussed and refuted the allegations as well as making submissions as to the University of Melbourne investigation and the Powerlifting Australia investigation.[43] The submissions referred to Mr Wilks' background, his current practice and the fact that he had been reappointed as an IME for WorkSafe for a period of four years until 30 June 2024.[44] It also stated:

Mr Wilks has only very limited assets (an apartment where he resides) and an investment apartment which has a large mortgage and significant financial problems by reason of its builder having left the jurisdiction without having completed the building. Loss of the capacity to earn a living would have disastrous consequences for Mr Wilks' financial circumstances.[45]

30 At a hearing on 27 April 2022 submissions were also made to the Board on his behalf.

31 The Board determined not to take immediate action with respect to the plaintiff's registration. On behalf of the Board, AHPRA notified the plaintiff by letter dated 28 April 2022 that:

On 27 April 2022, the Board considered Mr Wilks' submissions and decided not to take immediate action at this time.

Although the Board has decided not to take immediate action at this time, you will receive further correspondence about the ongoing investigation which has not been finalised.[46]

32 On 27 July 2022, Mr Wilks' solicitor wrote by email to AHPRA and requested information as to the status of the progress of the investigation, noting that the Victoria Police investigation had concluded without charges being laid, on the grounds of lack of evidence. The email also stated:

Robert Wilks' approval as a WorkSafe Independent Medical Examiner has been suspended pending conclusion of the AHPRA investigation and he is suffering significant loss of income and financial hardship whilst the AHPRA investigation remains pending.[47]

33 An AHPRA officer responded advising that 'we are currently liaising with Victoria Police to obtain the relevant material in relation to their investigation of Mr Wilks. Upon receipt, we will be in a position to consider the next steps to progress our enquiries.'[48] A further update was requested by Mr Wilks' solicitor on 28 August 2022, in which it was observed that the delay in processing the complaint was 'a direct cause of loss and damage to my client, including significant financial loss and mental distress'.[49] Ms Martin, who had by this time been appointed to investigate the complaint, responded by email dated 30 August acknowledging the time which had elapsed since AHPRA had received the initial notifications 'and the consequences that you have reported'. Ms Martin advised that she had 'provided police with an appropriate address to forward the relevant materials' and that she would 'endeavour to continue the investigation in a timely way, guided by the nature of the investigative steps outstanding'.[50]

34 Mr Wilks' solicitor again emailed AHPRA on 19 October and requested an update. Ms Martin responded almost four weeks later on 14 November 2022 advising that 'we are in the process of reviewing all the material received from Victoria Police and are trying to obtain information from other sources however this has been complicated by the ongoing civil proceedings'. She advised that she had a meeting with her managers the following week to discuss next steps and could provide a further update following that meeting.[51]

35 Mr Wilks' solicitor responded on 15 November 2022, observing that:

(a) There had been a hearing and determination of a preliminary issue in the defamation proceeding. Ms Qu had applied to the Court of Appeal seeking leave to appeal the decision and whatever the outcome of that appeal, the proceeding was 'unlikely to be concluded for at least 12 to 18 months (which time frame does not take into account any further appeal pursued after a final determination of the substantive claim by the County Court)'.

(b) The University of Melbourne had resisted a subpoena seeking production of documents relating to the investigation before it on the grounds of confidentiality, but had commented on the investigation to The Age newspaper, and that if AHPRA was looking to the University of Melbourne for information, the only factual matter which had been investigated was whether he had a sexual relationship with Ms Qu, a matter which he had admitted;

(c) Mr Legg's investigation had found that the allegations could not be substantiated but that there was evidence to suggest that the allegations made by Ms Qu were false, and that the Victoria Police investigation had found no evidence that Mr Wilks had committed any criminal offence, suggesting from the outcome of both investigations that neither Victoria Police nor Mr Legg found Ms Qu to be a truthful witness;

(d) As to the financial impact on Mr Wilks, the email said that

The continuing AHPRA investigation (and WorkSafe Victoria maintaining its suspension of my client's approval as an Independent Medical Examiner pending finalisation of the AHPRA investigation) has brought my client to the point of financial collapse.[52]

36 The email concluded by observing that 'more than 15 months have passed since the notifications were made and we do not see that the requirements of s 162 of the Act have been met. As a matter of fairness, this investigation needs to be terminated.'[53] Ms Martin responded advising that she would provide a further update following her meeting. Mr Wilks' solicitor made further requests for responses on 30 November 2022, 13 December 2022 and 20 December 2022.[54] The email of 20 December 2022 referred to the fact that more than 17 months had passed since the notifications were received, and that Mr Wilks was yet to receive any information as to the scope or terms of reference of the continuing investigation. It also referred to the 'severe financial harm to my client, of which the Board has been made aware'.[55] AHPRA responded on 22 December 2022 with a letter which stated:

We confirm that the concern identified for investigation is as follows:

1. Whether Mr Robert Wilks engaged in sexual contact, including sexual intercourse, with Ms Dory [sic] Qu without her consent in or around April 2021.

We apologise that the notice of investigation did not articulate the concerns which form the basis of the investigation into your client. In relation to the investigation contributing to financial harm to your client, I note Mr Wilks is not currently subject to any conditions and is able to practise unrestricted as a clinical psychologist.

We acknowledge your concern about the length of the investigation and apologise for the delay. I refer to correspondence from Ms Eleanor Martin dated 30 August 2022 addressing this concern in further detail. Please be assured that we are progressing this matter and it will be considered by the Psychology Board at its next meeting on 25 January 2023.[56]

37 After a request for information by Mr Wilks made through his solicitor on 30 January 2023, Ms Martin advised of the Board's decision of 25 January 2023 in correspondence dated 1 February 2023.[57]

38 The AHPRA investigator prepared a document titled 'Investigation Report' which was considered by the Board on 25 January 2023 (Investigation Report).[58] The date on which the Investigation Report was prepared or finalised was not disclosed on the document but the document identified it as having been prepared for the Board's 25 January 2023 meeting, and referred to a 'Risk assessed date' of 11 January 2023.[59]

39 The Investigation Report referred to the notifications, and identified the 'Concerns' as:

Maintenance of appropriate boundaries - Inappropriate sexual contact / relationship

Whether Mr Robert Wilks engaged in sexual contact, including sexual intercourse, with Ms Dory [sic] Qu without her consent in or around April 2021.[60]

40 It set out a 'current risk analysis' which referred to the articles in The Age, the defamation proceeding issued by Mr Wilks, the Melbourne University Investigation and the Powerlifting Australia investigation. The Investigation Report summarised submissions and responses made by Mr Wilks, including that there was no corroborative evidence of Ms Qu's allegations and that 'the police did not find Ms Qu to be a truthful witness'.[61] The report also observed that:

Mr Wilks also pointed to the financial impacts of the continuing Ahpra investigation as he is not able to work with WorkSafe Victoria as an Independent Medical Examiner pending its finalisation.[62]

41 The Investigation Report stated, as to the police investigation:

The complaint was initially referred to Victoria Police. In July 2022 Victoria Police confirmed that they had closed their investigation and are not pursuing charges against Mr Wilks due to insufficient evidence. Police have not expanded on how they reached this conclusion. It does not appear that Mr Wilks was ever approached by Victoria Police to participate in an interview, nor was he ever charged in relation to the complaint.[63]

42 The report set out information as to Mr Wilks' background and his practice setting, and did not contain any separate discussion of the investigator's views. However it stated the following:

The APS Code of Ethics states that psychologists must avoid engaging in disreputable conduct that reflects on their ability to practise as a psychologist or that reflects negatively on the profession or discipline of psychology.

The allegations are of a serious nature that have the potential to call into question Mr Wilk's suitability to hold registration as a psychologist. This is particularly so where such alleged conduct demonstrates qualities and/or behaviours that may impact on public opinion of the psychology profession and have a lasting negative impact on the profession's reputation.

The risk remains high in light of the seriousness of the allegations and the above considerations.[64]

43 The Investigation Report made the following recommendation:

It is open to the Board to:

1. Note the decision made on 31 August 2021 to investigate Mr Robert Wilks.

2. Consider the investigator's report, and

3. Note the concurrent civil defamation proceedings relating to claims about the conduct of Mr Wilks and decide to place the matter on hold in accordance with the Ahpra regulatory operations procedural documentation and Guidelines for Part 8 matters being placed on hold;

OR

1. Decide to take no further action under section 167(a) of the Health Practitioner National Law ...[65]

44 The reasons for the recommendation were then set out, and included the following:

1. We understand the defamation proceedings are unlikely to be concluded for at least a further 12 to 18 months.
2. Ahpra have experienced several difficulties obtaining evidence relevant to its investigation due to the ongoing defamation proceedings. These difficulties extend to obtaining evidence from Melbourne University due to a claim of privilege over the documents and speaking to Ms Qu.
3. During its investigation, Ahpra made contact with Ms Qu to ascertain whether she was in a position to participate in its investigation. Ms Qu expressed a general willingness to participate however, is not prepared to speak to Ahpra whilst the defamation proceedings brought against her by Mr Wilks are ongoing.
4. Mr Wilks has provided written responses to the notification during the investigation and immediate action process as well as making verbal submissions on 27 April 2022. We note Mr Wilks admits to having a consensual relationship with Ms Qu but denies engaging in non-consensual sexual contact with her. We also note that Ms Qu has no therapeutic treating relationship with Mr Wilks in his role as a psychologist. We have also had regard to the conflicting accounts and evidence provided in support of Mr Wilks' submissions, the two independent investigations completed by Powerlifting Australia and the University of Melbourne which have reached separate conclusions, and that no charges have been laid by Victoria Police. We consider that a resolution of these differing accounts cannot be reached without further evidence including participation of Ms Qu.[66]

45 The Investigation Report then set out the following statements, apparently as proposed terms of a decision to be adopted by the Board:

A) decide to place notification on hold

1. We refer to Ahpra's Guidelines for Part 8 matter being placed on hold and note that circumstances where management of a notification may be deferred include concurrent civil proceedings. The Board must exercise caution to ensure that the management of a notification does not interfere with court proceedings.

2. We have decided to place the matter on hold until the conclusion of above-mentioned defamation proceedings as Ahpra are currently unable to conduct a fulsome investigation as a result of those proceedings. In reaching our decision, we have taken into account the following considerations:

3. If the defamation matter between Mr Wilks and Ms Qu results in a final hearing, proceedings are likely to include a consideration by the Court as to whether Ms Qu's claims are substantially true or whether they constitute a false representation. Any determination of this issue will be relevant for the Board's consideration of the facts of the notification and therefore it is appropriate for the investigation to be placed on hold pending the outcome of these proceedings.

4. Ms Qu has indicated a general willingness to speak to Ahpra about the notification, however, has declined to engage at this point due to the ongoing civil proceedings. Without Ms Qu's participation, the Board is not in a position to properly consider whether or not Mr Wilks engaged in the alleged conduct. Accordingly, the investigation cannot be progressed at this time. In circumstances where Ms Qu may be in a position to engage with Ahpra after the defamation proceedings conclude, it is appropriate to place the matter on hold until such time.

5. The current further difficulties Ahpra has encountered in obtaining other relevant evidence throughout the investigation may be alleviated after the conclusion of the defamation proceedings.

6. Mr Wilks is not subject to any restrictions on his registration that would impact his ability to practice while the matter is on hold.

OR

B) decide to take no further action

1. Ahpra are currently unable to conduct a fulsome investigation as a result of the above difficulties obtaining information and securing participation by Ms Qu. Without this evidence, the Board is not in a position to properly consider whether or not Mr Wilks engaged in the alleged conduct.

5. Accordingly, no further action can be taken at this time.

1. Should Ms Qu wish to engage with Ahpra in future, or if additional evidence or information is provided to Ahpra, this notification may be re-opened for further consideration, and the investigation may be continued.[67]

46 The Board's decision was recorded in the form of a record of the 25 January 2023 meeting, setting out what had been 'confirmed' during the meeting, and titled 'Decisions and Actions'. In the section of the document relating to Robert Wilks (Record of Decision) it stated:

CONFIRMED during the meeting

Issues

1. Maintenance of appropriate boundaries- Inappropriate sexual contact/relationship

Whether Mr Robert Wilks engaged in sexual contact, including sexual intercourse, with Ms Dory [sic] Qu without her consent in or around April 2021.[68]

The Board:

1. noted the decision made on 31 August 2021 to investigate Mr Robert Wilks.

2. considered the investigator's report, and

3. noted the concurrent civil defamation proceedings relating to claims about the conduct of Mr Wilks and decide to place the matter on hold in accordance with the Ahpra regulatory operations procedural documentation and Guidelines for Part 8 matters being placed on hold...[69]

48 The Record of Decision then set out under the heading 'Reasons' seven paragraphs which replicated what had been set out as 'Reasons for Recommendation' in the Investigation Report.[70] Under the heading 'A) decision to place notification on hold' it then stated the following:

1. We refer to Ahpra's Guidelines for Part 8 matters being placed on hold and note that circumstances where management of a notification may be deferred include concurrent civil proceedings. The Board must exercise caution to ensure that the management of the notification does not interfere with court proceedings.
2. We have decided to place the matter on hold until the conclusion of the above mentioned defamation proceedings as Ahpra are currently unable to conduct a fulsome investigation as a result of those proceedings. In reaching our decision, we have taken into account the following considerations:

1. if the defamation matter between Ms Wilks and Ms Qu results in a final hearing, proceedings are likely to include a consideration by the Court as to whether Ms Qu's claims are substantially true or whether they constitute a false representation. Any determination of this issue will be relevant to the Board's consideration of the facts of the notification and therefore it is appropriate for the investigation to be placed on hold pending the outcome of these proceedings.
2. Ms Qu has indicated a general willingness to speak to Ahpra about the notification, however has declined to engage at this point due to the ongoing civil proceedings. Without Ms Qu's participation, the Board is not in a position to properly consider whether or not Mr Wilks engaged in the alleged conduct. Accordingly, the investigation cannot be progressed at this time. In circumstances where Ms Qu may be in a position to engage with Ahpra after the defamation proceedings conclude, it is appropriate to place the matter on hold until such time.
3. The current further difficulties Ahpra has encountered in obtaining other relevant evidence throughout the investigation may be alleviated after the conduction of the defamation proceedings.
4. Mr Wilks is not subject to any restrictions on his registration that would impact his ability to practice while the matter is on hold.[71]

49 The Record of Decision closed with a section under the heading 'Information Considered' which listed a series of documents which had been identified in the Investigation Report as attachments to that report.

50 The plaintiff's originating motion dated 21 February 2023[72] originally identified two decisions as the subject of his application for review. The first was the decision of the Board to investigate him as to whether he had engaged in sexual conduct with Ms Qu. The second decision was described as:

...the conduct or decision of the Defendant in determining that it would place the investigation "on hold until the conclusion of the concurrent civil proceedings after which time the investigation will resume", notice of which was provided to the Plaintiff by letter dated 1 February 2023 ("the second decision").[73]

51 The originating motion identified as the relief sought:

(a) an order in the nature of certiorari quashing the first decision and/or the second decision; and

(b) an order of mandamus to compel the Defendant to cease from conducting a further investigation into the relevant conduct of the Defendant until such time as it has any or any proper evidentiary basis upon which to do so or alternatively, a mandatory injunction restraining the Defendant from conducting a further investigation into the relevant conduct of the Defendant until such time as it has any or any proper evidentiary basis on which to do so.[74]

52 The plaintiff informed the Court in his written submissions filed prior to the hearing that he did not pursue the application for review insofar as it relates to the first of the decisions.[75] The plaintiff was, by the time of the hearing, represented by counsel who also approached the application on the basis that it was only the second decision which was the subject of the application for review. Counsel for the plaintiff also sought leave to amend the nature of the relief which was sought in the originating motion by way of an order in the nature of mandamus[76] and identified in the course of argument different particulars of the jurisdictional errors alleged.[77]

53 The plaintiff sought leave to rely on an Amended Originating Motion dated 22 November 2023, which was not opposed by the Board.[78] I granted leave to file the Amended Originating Motion on 24 November 2023.

54 The Amended Originating Motion identified the Board's decision to put the investigation on hold until the conclusion of the civil proceedings (the Decision), as the subject of review. The relief then sought in the Amended Originating Motion was relevantly as follows:

(a) an order in the nature of certiorari quashing [the Decision]; and

(b) further, an order in the nature of mandamus remitting to the Board, for reconsideration, its decision under s 167 of the National Law; and

(c) alternatively to (b), if the investigation is ongoing, order in the nature of mandamus requiring the Board to direct the investigator to continue the investigation as quickly as practicable as required by s 162 of the National Law.[79]

The National Law and the statutory scheme relevant to the Decision

55 Section 3 of the National Law sets out its objectives, which include the following:

(1) The object of this Law is to establish a national registration and accreditation scheme for -

(a) the regulation of health practitioners; and

...

(2) 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 practice in a competent and ethical manner are registered; and

56 Section 3A sets out the National Law's guiding principles as follows:

(1) The main guiding principle of the national registration and accreditation scheme is that the following are paramount -

(a) protection of the public;

(b) public confidence in the safety of services provided by registered health practitioners and students.

(2) The other guiding principles of the national registration and accreditation scheme are as follows -

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;

...

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

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 sections 3 and 3A.

58 Section 23 established AHPRA. Section 6 provides that AHPRA is the National Agency.

59 Section 25 sets out AHPRA's functions as the National Agency, which include the following:

(a) to provide administrative assistance and support to the National Boards, and the Boards' committees, in exercising their functions.

...

(i) to establish an efficient procedure for receiving and dealing with notifications against persons who are or were registered health practitioners and persons who are students, including by establishing a national process for receiving notifications about registered health practitioners in all professions;

...

60 Section 31 requires that regulations provide for a National Health Practitioner Board for each health profession, which, pursuant to s 31A, have the status of a body corporate. Section 33 provides that a National Board is an expert body, with at least half, but not more than two thirds, of members being practitioner members.

61 Section 32 sets out the powers of National Boards, which include the following:

(1) Subject to subsection (2), a National Board has the powers necessary to enable it to exercise its functions.

(2) A National Board does not have power to -

(a) enter into contracts; or

(b) employ staff; or

(c) acquire, hold, dispose of, and deal with, real property.

62 Section 37 provides for the Board to delegate its functions to entities and persons including AHPRA and a member of staff or contractor of AHPRA.

63 Section 35 sets out the functions of National Boards, which include the following:

(1) The functions of a National Board established for a health profession are as follows:

...

(g) to oversee the receipt, assessment and investigation of notifications about persons who -

(i) are or were registered as health practitioners in the health profession under this Law or a corresponding prior Act; or

...

(i) to refer matters about health practitioners who are or were registered under this Law or a corresponding prior Act to responsible tribunals for participating jurisdictions;

...

(q) to do anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme;

...

64 Part 8 of the National Law is concerned with the health, conduct and performance of registered practitioners. It is to be read with s 5 of the National Law, which defines relevant concepts including 'professional misconduct' and 'unprofessional conduct'.

65 Divisions 2 to 4 of Part 8 provide a process for a notification to be made about a registered health practitioner. Section 146 provides that a notification is made to the National Agency, being AHPRA. Pursuant to s 148, AHPRA must, as soon as practicable after receiving a notification, refer it to the National Board established for the relevant practitioner's profession. Section 149 then requires the relevant National Board to make a preliminary assessment of the notification within 60 days of receipt.

66 Section 151 provides for when a National Board may decide to take no further action. It provides as follows:

1. When National Board may decide to take no further action

(1) A National Board may decide to take no further action in relation to a notification if -

(a) the Board reasonably believes the notification is frivolous, vexatious, misconceived or lacking in substance; or

(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; or

(c) the person to whom the notification relates has not been, or is no longer, registered in a health profession for which the Board is established and it is not in the public interest for the Board to investigate or otherwise deal with the notification; or

(d) the subject matter of the notification has already been dealt with adequately by the Board; or

(e) the subject matter of the notification -

(i) is being dealt with, or has already been dealt with, by another entity; or

(ii) has been referred by the Board under section 150 or 150A to another entity to be dealt with by that entity; or

(f) the health practitioner to whom the notification relates has taken appropriate steps to remedy the matter the subject of the notification and the Board reasonably believes no further action is required in relation to the notification.

67 Division 8 deals with investigations. It includes s 160, which provides as follows:

(1) A National Board may investigate a registered health practitioner or student registered in a health profession for which the Board is established if it decides it is necessary or appropriate -

(a) because the Board has received a notification about the practitioner or student; or

(b) because the Board for any other reason believes -

(i) the practitioner or student has or may have an impairment; or

(ii) for a practitioner -

(A) the way the practitioner practises the profession is or may be unsatisfactory; or

(B) the practitioner's conduct is or may be unsatisfactory; or

(c) to ensure the practitioner or student -

(i) is complying with conditions imposed on the practitioner's or student's registration; or

(ii) an undertaking given by the practitioner or student to the Board.

(2) If a National Board decides to investigate a registered health practitioner or student it must direct an appropriate investigator to conduct the investigation.

68 Schedule 5 of the National Law sets out the powers of investigators. They include the following:

For the purposes of conducting an investigation, an investigator may, by written notice given to a person, require the person to -

(a) give stated information to the investigator within a stated reasonable time and in a stated reasonable way; or

(b) attend before the investigator at a stated time and a stated place to answer questions or produce documents.

1. Investigation to be conducted in timely way

The National Board must ensure an investigator it directs to conduct an investigation conducts the investigation as quickly as practicable, having regard to the nature of the matter to be investigated.

(1) As soon as practicable after completing an investigation under this Division, an investigator must give a written report about the investigation to the National Board that directed the investigator to carry out the investigation.

(2) The report must include -

(a) the investigator's findings about the investigation; and

(b) the investigator's recommendations about any action to be taken in relation to the health practitioner or student the subject of the investigation.

After considering the investigator's report, the National Board must decide -

(a) to take no further action in relation to the matter; or

(b) to do either or both of the following -

(i) take the action the Board considers necessary or appropriate under another Division;

(ii) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.

72 For the purpose of s 167(b)(i), a number of avenues are available to a National Board to pursue disciplinary action against a practitioner following an investigation. Section 178 permits a National Board to take action directly against a practitioner. Sections 181 and 182 permit a National Board, under certain circumstances, to refer a practitioner to a health panel or a performance and professional standards panel. Section 193 requires a National Board to refer a matter to the responsible tribunal if it believes the practitioner has behaved in a way that constituted professional misconduct, or if a panel established by the National Board requires the referral of the matter to the responsible tribunal. In Victoria, the responsible tribunal is the Victorian Civil and Administrative Tribunal (VCAT). Under s 196, VCAT's powers in a referred matter include sanctions ranging from a caution or reprimand to cancellation of registration.

73 The plaintiff identified his primary submission as being that the Decision is ultra vires the powers conferred on the Board by s 167 of the National Law, and ought to be declared invalid and quashed on the grounds of this invalidity alone.[80] If the plaintiff is successful on this ground, the other grounds do not arise.

74 The plaintiff contended that the when an investigation report is given to the Board under s 166 of the National Law, the Board is then required by s 167 to do one of two things:

(a) take no further action pursuant to s 167(a); or

(b) take action pursuant to another Division of the National Law or refer the matter to another entity for investigation or action, or both of those things, pursuant to s 167(b).

75 The plaintiff's original written submissions summarised the argument on the ultra vires ground as follows:

(a) By reporting to the Respondent that it may exercise its powers under Section 167 of the National Law, the investigator is reporting to the Respondent that her investigation is complete; and

(b) Once it receives a report under Section 166 of the National Law, the Respondent must decide in accordance with Section 167 of the National Law and any decision which follows must necessarily be a decision made pursuant to Section 167 of the National Law; and

(c) Because the decision is ultra vires the powers conferred on the Respondent by Section 167 of the National Law does not change the character of the decision to one which is not made under s 167.[81]

76 It was contended that the investigation report received by the Board must be considered the final report under s 166 of the National Law so that the Board could only take one of the actions identified in s 167, and no other action. It was not authorised to take a different course of action and put the investigation 'on hold'.[82]

77 The Board contended that, properly construed, the legislative scheme permitted the course of action taken by the Board in putting the investigation on hold. The Board submitted that the Board's power to decide that the investigation should be put on hold derived from its functions under ss 35(1)(g) and 35(1)(q) of the National Law.[83] It was also contended that the plaintiff's argument that the Decision was ultra vires was flawed in that the two premises of the argument could not be established:

(a) The first premise was that the Investigation Report was an 'investigation report' for the purposes of s 166. It was contended by the Board that the report was not a s 166 investigation report because such a report could only be given 'after completing an investigation', and the Investigation Report had made clear that the investigation had not been completed because it identified the investigator's view that she had not been able to complete the factual inquiries that she wished to make and had proposed that the investigation could have been put on hold until after the defamation proceeding was concluded and further inquiries could be made. It was also said that the report was 'not in the form contemplated by s 166(2)(a) and (b)'.[84]

(b) The second premise of the argument, that if the Board received a final investigation report under s 166, it was bound only to take the steps identified in s 167, was said to be wrong on the basis that the Board had, until such time as it had made a final decision, power to seek further information. The National Law gave the Board broad functions and powers including that in s 35(1)(g) to 'oversee the receipt, assessment and investigation of notifications...'. This function was sufficient to enable the decision made by the Board to put the investigation on hold in circumstances where the purpose of the Decision was to 'ensure that factual inquiries, identified by the investigator, were able to be completed'.[85] Those functions could be exercised flexibly and from time to time, as recognised in item 22 of the interpretative provisions in Schedule 7 of the National Law.[86]

78 The plaintiff's contentions as to the Board's powers with respect to investigations under the National Law requires consideration of the terms of s 166 and 167 of the National Law, in the context of the National Law's broader provisions as to the powers and functions of the Board and investigators.

79 The National Law provides for the Board to investigate registered health practitioners and students in specific circumstances.[87] The investigation is to be conducted by means of directing an appropriate investigator to conduct the investigation.[88] Powers and procedures of investigators are specifically provided for by Schedule 5 of the National Law, but there is limited provision in the National Law which regulates the course of an investigation. Importantly, the National Board must ensure that an investigator it directs to conduct an investigation conducts the investigation 'as quickly as practicable, having regard to the nature of the matter to be investigated'.[89]

80 Subdivision 3 of Division 8 regulates the 'Procedure after an investigation'. An investigator 'must', pursuant to s 166, 'as soon as practicable after completing an investigation' give a written report about the investigation to the National Board.' Section 167 then provides that the National Board, after considering the investigator's report 'must decide' either to take no further action in relation to the matter (s 167(a)) or take a further action itself under the National Law or refer it to another entity for investigation or action (s 167(b)).

81 The use of the obligatory language 'must' in ss 166 and 167, falling within the subdivision 'Procedure after investigation', does naturally indicate a specific procedure which is required to be followed after an investigation is completed, by the investigator and then the Board. In a situation where an investigation is in fact completed, s 166(1) makes it mandatory for the investigator 'as soon as practicable' to give a written report about the investigation to the National Board that directed the investigation to be conducted. After an investigation is completed, this is the only course of action open to the investigator. Requiring that written report to be given to the National Board as soon as practicable after completing the investigation is consistent with the intention underlying the scheme, and made manifest in s 162, that the investigation process and subsequent action is to occur as quickly as practicable.

82 Section 167 provides for the 'Decision by the National Board'. In referring to what the Board must decide 'after considering the investigator's report' it is apparent from the context that this is a reference to an investigator's report provided under s 166, after the investigation is completed. In providing that after considering that report the Board 'must decide' to take no further action, or to take either or both of the actions identified under s 167(b), there is, in my view, a clear procedural pathway stipulated that the Board must follow. The language of 'must' is to be understood as bearing its natural meaning unless otherwise indicated, which is that it indicates an insistent and mandatory obligation.[90] The context of the National Law, in which both the terms 'may' and 'must' are regularly used, indicates a deliberate choice between 'may' to indicate a discretion and 'must' where an obligation is intended.

83 More specifically, s 167, in providing the alternative options in sub-ss (a) and (b), and no other option, does, read naturally, indicate that these are the only options the Board may take when the investigation is completed and it has considered the investigation report provided to it. A set pathway of that nature, requiring the Board to take no further action, take action, or refer the matter the subject of an investigation to another entity, is consistent again with the apparent concern of the Act that investigations proceed with as much expedition as is practicable.

84 The Board's contrary contention, that even where a final investigation report is provided under s 166, the Board is not limited to the steps in s 167, is difficult to reconcile with the statutory language and the structure of the Act, which stipulates the steps in s 166 and s 167 as the 'Procedure after the Investigation'. The Board's submission that the statutory context compels this conclusion because 'functions conferred under the Act are able to be exercised from time to time as the need arises' raises the question as to what function is it said that the Board can exercise from time to time in a situation where it has received the s 166 report. Section 167 provides for only those functions set out in ss 167(a) and (b); the power to exercise those powers from time to time or more than once does not further an argument that the Board 'is not bound to take only the steps set out in s 167' but could take some other action.[91]

85 If (as also submitted by the Board) the relevance of item 22 of Schedule 7 is more that 'until the Board has made a decision, it remains open for the Board to seek further information', this is a situation separate from the position where a report has been provided under s 166 after completion of the investigation. It can be accepted that the Board may exercise powers relating to oversight of an investigation from time to time, but this does not mean it could enter upon the decision making process required by s 167 more than once in respect of the same investigation report.

86 It was also contended for the Board in support of this construction that the purpose of s 167 of the Act was to ensure that after an investigation has been completed, the Board makes a final decision as to the future conduct of the matter, an analysis which does in my view accurately reflect the object of that section. However it was then said that '[t]his rationale does not apply if the Board is of the view that it requires further information and therefore further investigations to be undertaken before making a decision'.[92]

87 The answer to this concern is not, in my view, to permit the Board, after receiving a report which is written as a report after completing the investigation within the meaning of s 166, to take a step not contemplated by s 167 and direct the investigation to continue. This is not provided for by the plain language of s 167, nor by any other provision, and would undermine the objective underlying the provisions, which is to ensure the taking of steps to further the resolution of the matter following investigation. The objective of s 167 to ensure that the Board makes a final decision as to the matter after the investigation is completed is better served by the Board exercising its power to direct the investigator while the investigation is on foot, and before it is completed as contemplated by s 166.

88 The Board's powers to direct an investigator to conduct an investigation are expressly conferred by s 160(2). To the extent that this subsection may not be regarded as a sufficient source of power in the Board to direct the conduct of the investigation on an ongoing basis, that power is conferred by Board's function in s 35(1)(g) of the National Law (in combination with s 32(1), which confers on the Board the powers necessary to enable it to exercise its functions) to oversee investigations about practitioners.

89 Other aspects of Division 8 of the National Law relating to investigations demonstrate the intention that the Board will exercise the power to oversee the progress of investigations, including:

(a) s 161(3) which imposes on the National Board (and not on the investigator nor on AHPRA) the obligation to give written notice of the progress of the investigation to the registered health practitioner or student and, if applicable, the notifier, at no less than 3 monthly intervals; and

(b) s 162 which imposes on the National Board the obligation to ensure that an investigator it directs to conduct an investigation conducts it as quickly as practicable, having regard to the nature of the matter to be investigated.

90 These powers to oversee the progress of the investigation and to direct its conduct, if exercised by the National Board, provide a mechanism to avoid a situation in which the investigator regards the investigation as complete, and provides the written report under s 166, but the Board considers the investigation so deficient that it does not consider itself in a position properly to make one of the decisions identified in s 167.

91 The powers are also sufficient to provide for the Board to give direction and oversight to the investigator in the course of the investigation, so that the Board may consider the status of the investigation from time to time and identify whether further information is required.

92 These conclusions do not resolve the issue in this case of whether the Board was required to exercise the powers in s 167 after considering the Investigation Report. This depends on the characterisation of the Investigation Report. Subdivision 3 of Division 8 provides for the procedure 'after investigation', and s 166(1) refers to a report that is given 'after completing an investigation'. In assessing whether a report is or is not a report under s 166, it is necessary to consider the nature of the report, objectively, rather than (for example) the investigator's opinion as to the basis on which it was provided, given that s 166 requires the investigator to provide the written report by reference to a particular event, namely 'after completing an investigation'.

93 In the present case, the Board has contended that the Investigation Report provided to the Board by the investigator was not a report for the purposes of s 166, but a report provided in the course of the ongoing investigation. There is undoubtedly some basis for Mr Wilks' contrary contention that the 'Investigation Report' was a s 166 report. One of the two recommendations made in the Investigation Report was that the Board could '[d]ecide to take no further action under section 167(a)...'. On its face this could suggest that the investigator considered that the investigation had been completed, that the report was being provided pursuant to s 166, and that it then was for the Board to make a determination under s 167.

94 However, having regard to the contents of the Investigation Report as a whole, I consider that the better view is that it was not a report for the purposes of s 166 as the report on its face demonstrated that it was provided at a time when the investigation was not completed.

95 The basis for the recommendation that the notification be put 'on hold' was that AHPRA was 'currently unable to conduct a fulsome investigation' as a result of the defamation proceedings, and that because Ms Qu had declined to engage with the investigation due to those proceedings:

... the Board is not in a position to properly consider whether or not Mr Wilks engaged in the alleged conduct. Accordingly, the investigation cannot be progressed at this time.[93]

96 These statements clearly conveyed the position the investigation was not completed, at least insofar as the investigator did not regard it as complete and had identified at least one further step which would be desirable to progress it.

97 It was also said by the Board that the report could not be regarded as a report provided under s 166, as it did not follow the format contemplated by s 166(2)(a) and (b), including specifically in that it did not limit its recommendations to the options in s 167(a) and (b).[94] This was a less persuasive basis on which to characterise the report, including because the submission did not sit comfortably with the Board's position on statutory construction, that the Board may take actions other than those set out in s 167 following receipt of a report under s 166.[95] The Investigation Report did also arguably address the requirements of s 166(2) in that it included some findings about the investigation (as contemplated by s 166(2)(a)), and recommendations (as contemplated by s 166(2)(b)), one of which was explicitly described as the option to take no further action under s 167(a). It did not, for example, identify circumstances falling within one of the situations identified in s 151 of the National Law in which a National Board may decide to take no further action, which would have been a basis on which the report could have been regarded as having been prepared for the purposes of recommending that the Board proceed under s 151.

98 Ultimately, although the National Law does not provide specifically for reports to be provided for a National Board in the course of (as well as on completion of) an investigation, the functions and powers of the Board under s 35(1)(g) and s 32 to direct the conduct of and oversee an investigation are sufficiently broad that they comfortably encompass a power to receive reports (whether written or otherwise) from an investigator in the course of an investigation, and to give instruction in response to them. As submitted by counsel for the Board, it is open to view the Investigation Report as the investigator 'asking the Board for some direction in terms of what to do'.[96] While the terms and form of the report may not have been entirely apt to being understood in this way, I accept that this was the substance of what the investigator was doing.

99 It then remains to consider, in the context of the 'ultra vires' ground of review, whether the specific response of the Board to the Investigation Report, being its decision to 'place the matter on hold',[97] was a decision that it had power to make (putting aside for this purpose whether that exercise of power was affected by one of the other jurisdictional errors alleged by the plaintiff).

100 The National Law does not expressly identify any power to put 'a matter' - whether a notification or an investigation - 'on hold'. The Board Decision itself identified that the Board considered that it was placing the matter on hold 'in accordance with the AHPRA regulatory operations procedural documentation and Guidelines for Part 8 matters being placed on hold'. This reflected the language of the investigator's recommendation to place the notification on hold in the Investigation Report, which stated:

We refer to Ahpra's Guidelines for Part 8 matters being placed on hold and note that circumstances where management of a notification may be deferred include concurrent civil proceedings.[98]

101 The evidence tendered by the Board did not include the 'Guidelines for Part 8 matters being placed on hold' nor any documentation which would have fallen within the description of AHPRA 'regulatory operations procedural documentation', as described in the Board's decision. I raised with the parties whether, given the prominence of the reference to these documents in the Board's decision, they should be in evidence so that I could consider them in considering the Board's decision.[99] Neither party sought to tender the Guidelines or any other procedural documentation and it was contended that it was not relevant.[100]

102 This gave rise to the unfortunate situation in which the Board had expressed itself by its own reasons to be acting 'in accordance with' AHPRA Guidelines and procedural documentation, the content of which was not identified in the Record of Decision and was not separately before the Court. There was also no explanation as to why the Board, which has the role of oversight of investigations to be conducted by investigators appointed from AHPRA staff or contractors[101] would be making its decisions 'in accordance with' AHPRA 'Guidelines' and 'regulatory operations procedural documentation'.[102] The Guidelines were internal[103] and not published pursuant to the provisions of the National Law (unlike codes and guidelines to be developed, approved and published by National Boards pursuant to ss 39 and 40 of the National Law).

103 While this is an undesirable state of affairs for a practitioner or member of the public seeking to understand the basis on which the Board is taking steps in an important regulatory process, I am of the view that it does not matter with respect to the question of whether the Board had power to direct that an investigation could remain on foot, pending the taking of a further step or an anticipated event which would further the investigation. That power arises from the function of the Board under s 35(1)(g) in overseeing the receipt, assessment and investigation of notifications, when read with s 32 of the National Law which confers the power necessary to enable it to exercise its functions.

104 That oversight power is not open ended. It must be read in the context of the National Law and specifically:

(a) the requirement that placing the matter on hold would be, in the terms of s 32, necessary to enable the Board to oversee the investigation;

(b) the obligation of the Board under s 162 to 'ensure an investigator it directs to conduct an investigation conducts the investigation as quickly as practicable, having regard to the nature of the matter to be investigated'; and

(c) the guiding principle set out in s 3A(2)(a) that the national registration and accreditation scheme operate in a transparent, accountable, efficient, effective and fair way.

105 The power to keep an investigation on hold pending a further step is also subject, as appropriately acknowledged by counsel for the Board, to limits dictated by the principles of legal unreasonableness, which may be offended by a completely open-ended delay.[104]

106 The period for which the investigation against Mr Wilks would be 'on hold' pursuant to the Board's decision is uncertain, there being no guarantee as to when the County Court proceeding (and any appeal from it) would be concluded. However, in circumstances where the decision was to place the investigation on hold pending a specific anticipated event, I accept that the Board had the power to make that decision, and that considerations of delay and the indefinite nature of the period for which the investigation would be on hold fall for consideration in the context of the reasonableness of the decision, rather than whether the decision was ultra vires.

Failure to take into account relevant considerations

108 Originally, Mr Wilks contended in the originating motion that the Board had failed to take into account two relevant considerations, being the guiding principles in the National Law of 'protection of the public', and that the registration scheme is to operate in a fair way (ss 3 and 3A of the National Law). The outline of argument subsequently prepared by his counsel relied not only on the statutory guiding principles but also alleged that the Board failed to take into account as relevant considerations the financial impact that the Decision would have on the plaintiff, and Ms Qu's statement to the police. This was reflected in the amended originating motion, which gave the following particulars of the failure to take into account relevant considerations:

• Whether the second decision was necessary to meet the paramount object and primary guideline of the scheme (Section 3A of the National Law), that being the protection of the public; and
• Whether the second decision met the other guideline contained in Section 3A of the National Law that the scheme is to operate in a fair way; and
• The financial impact that the second decision would have on the Plaintiff; and
• Ms Qu's Statement made to Victoria Police.

109 As noted above, the Board very reasonably did not take issue with the expanded case identified in the plaintiff's submissions and did not oppose the filing of the amended originating motion.

Failure to take into account relevant considerations - the plaintiff's submissions

110 In his original written submissions that he prepared himself, Mr Wilks put his submissions somewhat differently from the way in which he had expressed them in the originating motion:

In making the [Decision] the respondent failed to consider the relevant considerations contained in Section 3A of the National Law, setting out the main guiding principles pursuant to which it was to discharge its functions under the National Law.

In making the [Decision] the Respondent considered the irrelevant consideration that [the] third parties who had refused to cooperate with the investigation may do so [at] some unknown date in the future, being a consideration founded purely on speculation and without any or any proper foundation.[105]

111 In the oral outline of argument later prepared by counsel the significance of the failure to take into account the guiding principles was identified as being that the notifications had been made in April 2021, and that over two years later 'the plaintiff is still vexed by an investigation, that has been put "on hold" for an indefinite period'.[106]

112 As to the consideration of the financial impact of the Decision, the plaintiff referred to the fact that WorkSafe had suspended the plaintiff's approval to conduct Independent Medical Examinations for WorkSafe until the Board's investigation was complete, and that this was his sole or major source of income. It was contended that despite the Board having been made aware of these facts by way of the response to the immediate action (on 26 April 2021) and again on 15 November 2022, it 'paid no regard to the decimation of the plaintiff's income from [WorkSafe]'.[107]

113 It was also contended for the plaintiff that the Board failed to take into account Ms Qu's statement to police, which was relevant because it showed that the Board had her version of events yet failed to acknowledge it. By failing to consider that statement and other material the Board had from Victoria Police, it 'failed to consider that it already had sufficient evidence from Ms Qu as to her allegations'.[108] It was contended that the Board had 'the police statement and the initial email complaint' but did not take into account that they already had this version of events.[109]

Failure to take into account relevant considerations - the Board's submissions

114 The Board contended, in response to the plaintiff's original contentions as to relevant considerations and the taking into account of an irrelevant consideration that 'third parties who had refused to cooperate with the investigation may do so in future' that they were in substance factual complaints about the making of the decision; and that there was no statutory basis to suppose that the availability of a witness was irrelevant.[110] It was also contended that the plaintiff had not demonstrated that the Board failed to take into account any factual matter that it was bound to take into consideration.[111]

115 In relation to the plaintiff's reliance on the failure of the Board to take into account the statement of Ms Qu to Victoria Police it was submitted by the Board in its written submissions that the relevance of the statement to the grounds of review was not apparent, an understandable submission given that the statement had not been identified as a relevant consideration in the originating motion at that time. It was also observed in the submissions that the fact that Victoria Police decided to close the investigation without charges was not relevant given that '[t]he taking of regulatory action under the National Law does not, in any way, depend on the outcome of criminal proceedings'.[112]

116 With respect to the consideration as to the financial impact of the Decision on Mr Wilks, the Board contended both that the consideration was not mandatory, and in any event the Board did consider it. It was contended that:

(a) The financial impact on Mr Wilks was not a mandatory consideration for the Board given the nature of the Decision, namely that it was 'an interim step and was not a step that finally determined anything adversely to him. It didn't suspend him, cancel him, put conditions on his registration...'.[113]

(b) Even if it was a mandatory consideration, the evidence was that the Board had sufficiently considered the financial impact on Mr Wilks, because the Investigator's report referred to the issue of the financial impact on the plaintiff, and the Board had before it a letter from WorkSafe; and the Board had said that it had considered the investigator's report, and had listed the WorkSafe letter in the section of its reasons titled 'Information Considered.'[114] Although it was conceded that the Board did not, in its Reasons, engage in terms in its reasons with the financial impact on Mr Wilks,[115] it was said that the effect of the paramount guiding principle in s 3A of the National Law that the protection of the public and public confidence in the safety of services provided by registered health practitioners and students was that 'the private interests of the practitioner can't override' those interests. It was therefore open to the Board to not have 'regarded the private impact on [Mr Wilks] as overriding considerations of the kind that it set out in its reasons, particularly in circumstances where the Board went out of its way to note that insofar as it was within [its] power to impose restrictions on his registration, they hadn't imposed any'.[116]

117 As the argument developed and expanded in the hearing on the relevant considerations ground, it was assumed by the plaintiff that the statement of Ms Qu to Victoria Police was before the Board at the time it made the decision.[117] The Board proceeded upon the same implicit basis, but submitted that the ground should be resolved on the basis that it was essentially a merits review rather than a proper judicial review point to contend that, by reason of the statement, the Board should have concluded that it had enough information.[118]

118 However, the evidence did not establish definitively what information had been before the Board at the time of its decision, and in particular, whether Ms Qu's police statement had been provided to the Board by the time it made its decision.

119 Mr Wilks' evidence was that he had received by way of discovery from the Board documents which had been provided by Victoria Police including 'a case summary, witness list, exhibit list, charge sheet, Dori Qu's Statement and the record of interview with my client [sic] all of which had led the expert SOCIT division of Victoria Police to close the investigation without charges being laid.'[119] Mr Wilks' submissions contended with respect to Ms Qu's statement that 'it shows that the Board had her version of events yet failed to even acknowledge it'.[120]

120 The copy of the investigation report which was tendered by the Board as an exhibit to the affidavit of its solicitor, did have a list of attachments, but did not refer to any material provided by Victoria Police other than an email, described as:

Email - From Victoria Police - advising investigation closed - 19 July 2022.[121]

121 Following the hearing, on further consideration of the evidence in the Court Book, it appeared that there was no evidence that the statement of Ms Qu was before the Board (as opposed to the evidence that it had been provided to the AHPRA investigator). The Court contacted the parties to bring this to their attention and invited submissions on whether there was any evidence that the statement of Ms Qu was before the Board was the correct understanding of the evidence, and if not, a clarification as to how that ground of review was put.

122 The plaintiff acknowledged in supplementary submissions that there was no evidence that the Board itself had Ms Qu's statement to Victoria Police prior to making the Decision and abandoned that aspect of the relevant considerations ground.[122] He contended, however, that the availability of the statement was relevant to the legal unreasonableness ground. The Board also acknowledged in supplementary submissions that there was no evidence that Ms Qu's statement was before the Board, but resisted the contentions with respect to legal unreasonableness.[123] The issue is, therefore, discussed further below in the context of the legal unreasonableness ground.

Failure to take into account relevant considerations - analysis

123 A failure to take into account relevant considerations is made out as a ground of review only if the considerations were considerations that the decision maker was bound to take into account, and were then not considered by the decision maker in a way which was material to the outcome.[124] The question of whether a decision maker was bound to take matters into account is to be determined by reference to the terms of the legislation conferring the decision-making power, and any implications arising from its subject matter, scope and purpose.[125] The nature of the decision to be made will also be relevant.

Relevant considerations - the objectives and guiding principles in ss 3 and 3A of the National Law

124 The question as to whether the Board was required to consider the objectives set out in s 3 and the guiding principles in s 3A is straightforward. Section 4 of the National Law expressly requires that an entity that has functions under the National Law 'is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A'. The objectives and guiding principles are mandatory considerations in the exercise of the National Boards' functions and so are also relevant considerations for the purposes of the judicial review principles.

125 The question of what will constitute sufficient regard or consideration of those objectives and principles by the Board in the exercise of different functions is less straightforward. The approach to the standard of consideration and engagement by an administrative decision maker has been variously expressed, including as an 'active intellectual process'[126] or requiring 'proper, genuine and realistic' consideration,[127] but as recently observed by Niall JA in Donohue v Westin, I must be alert to the risk, in applying these with qualitative standards, of sliding 'into an examination of whether the outcome of the decision making was justified or correct'.[128] I note these standards and also the cautions as to how they should be approached, and proceed on the basis that the essential element underlying the expressions denotes a consideration that is genuine rather than automatic, perfunctory or tokenistic.

126 This case also demonstrates that the standard of consideration required may be guided by the subject matter and the purpose of the decision to be made.[129] The obligation in s 4 of the National Law for the Board to have regard to the objectives and guiding principles will operate in the same way - particular objectives and guiding principles amongst those identified in s 3 and s 3A will have different degrees of relevance to different entities and different degrees of significance to different functions. For example, the objective of facilitating the provision of high quality education and training of health practitioners (s 3(2)(c)) will be highly relevant to a National Board's decision under s 43 as to what entity is to exercise accreditation functions including assessing programs of study but may have little if any relevance to a National Board's decision as to whether an individual is not suitable to hold non-practising registration under s 74.

127 It can also be accepted, as contended by the Board,[130] that the extent to which the Board is required to take a relevant consideration into account (or, as here the object or guiding principle) will be affected by whether the decision is one with final effect, or, as here, a decision taken as a step in a decision-making process. If the decision was a final decision of a National Board to take action with respect to a practitioner's registration, a matter of acute significance to the practitioner, the Board will be required to engage with the consideration in a more active and substantive way than may be expected with respect to decisions which do not have a final effect. In the present case, although the decision was one made in the course of the investigation, rather than a final decision determining the outcome of the notification and investigation, it was one which would have a significant practical impact on Mr Wilks, given that it would have the effect of keeping the investigation open, for an indefinite and potentially lengthy period. In these circumstances, and noting that one of the options before the Board was an outcome which would have involved the Board making the final decision of taking no further action on the notification, the nature of the consideration which the Board should have given the relevant matters was of a similar nature as could have been expected in a final decision.

128 The first consideration that Mr Wilks contends was not taken into account was the protection of the public, which is both an objective and a guiding principle of the National Law.[131]

129 The Board did not refer to the relevant sections of the National Law or to the protection of the public in terms but the Record of Decision states that the Board 'considered the investigator's report'. The Investigation Report had referred to certain matters relevant to the protection of the public. It referred to the 'APS Code of Ethics' which states that psychologists must avoid engaging in disreputable conduct that reflects on their ability to practise as a psychologist or that reflects on the profession or discipline of psychology, and observed:

The allegations are of a serious nature that have the potential to call into question Mr Wilks' suitability to hold registration as a psychologist. This is particularly so where such alleged conduct demonstrates qualities and/or behaviours that may impact on public opinion of the psychology profession and have a lasting negative impact on the profession's reputation.[132]

130 The Investigation Report had also noted, in the context of a risk assessment, that Mr Wilks practised in a private setting with little to no oversight, but that the issues under investigation did not relate to his performance or conduct in the course of his practice as a psychologist, so that lack of oversight 'does not expressly elevate the risk'.[133]

131 Given that the Board's reasons for decision closely followed the terms of the Investigation Report, I accept that when the Board stated that it had considered the Investigation Report, it had done so, including these observations as to matters relevant to the protection of the public. While it may have been the case that the observations in the Investigation Report as to the impact on the public did not go so far as to address its application to each of the two alternative recommendations (to take no further action, or to put the investigation on hold), to require this degree or quality of analysis by the Board's in the context of this decision would go beyond the legitimate role of the Court in applying the relevant considerations ground of review.[134]

132 Turning to Mr Wilks' submission that the Board failed to take into account the guiding principle that the national registration and accreditation scheme is to operate in a fair way, this principle will apply in the context of the Board's functions with respect to investigations given that investigations of notifications about a registered practitioner form part of that scheme.

133 Neither the Record of Decision nor the Investigation Report expressly refer to any consideration of fairness of the decision in the context of the operation of the scheme. However, reading the Board's reasons in the Record of Decision keeping in mind that it was the Board's record of an administrative decision[135] and should not be read with 'an eye keenly attuned to the perception of error',[136] it does appear that the Board did consider a matter relevant to the impact of the decision on Mr Wilks, and thus relating to the fairness of the decision, namely that he was not subject to any restrictions on his registration that would impact his ability to practise while the matter is on hold.[137] The contention for Mr Wilks was in effect that the Board's failure to consider fairness was demonstrated by the fact that the plaintiff is still vexed by the investigation after notifications made over two years from the date of the hearing, and that the overall outcome of the decision to put the investigation on hold was not fair. This would, however, again invite analysis of the quality of the Board's decision and its ultimate merit of the decision rather than demonstrating that the Board had failed to consider the fairness guiding principle.

134 The relevant considerations ground is not made out with respect to the statutory object and guideline of protection of the public, nor with respect to the requirement that the scheme operate in a fair way.

Relevant considerations - the financial impact on the practitioner

135 Mr Wilks then relies on a failure by the Board to consider the financial impact of the Decision on Mr Wilks, despite having been made aware of the impact of the ongoing investigation on Mr Wilks' work and financial situation.

136 The first issue is whether the financial impact on Mr Wilks was a mandatory consideration for the Board in the exercise of the power to oversee the investigation. The National Law does not refer, in the provisions relating to investigations or elsewhere, specifically to any requirement that the Board or an investigator it appoints is to consider the impact on the relevant practitioner, financial or otherwise. It remains to be considered whether it can be inferred contextually from other provisions of the National Law that information as to the impact on the practitioner of decisions made following receipt of a notification and during an investigation must be taken into account by the National Board. Potentially relevant provisions include:

(a) the guiding principle set out in s 3A(2)(a) that the national registration and accreditation scheme is to operate in a fair way, which includes fairness to registered health practitioners;

(b) the requirement in s 152 that the National Board give notice of any notification to the registered health practitioner;

(c) the process for a practitioner to make submissions, to which the National Board must have regard, in any show cause process with respect to immediate action after a notification (ss 157 and 158); and

(d) the requirements in s 161 that the registered health practitioner the subject of an investigation must be notified of the investigation and be given updates about the investigation.

137 These provisions, while establishing requirements to keep a practitioner updated throughout an investigation, do not establish a requirement to make inquiries of or receive information from a practitioner in the course of an investigation, other than in the context of an immediate action show cause process under Division 7 of the Act. Certainly there is no focus on the impact on the practitioner in the same way as considerations relating to the protection of the public are embedded in the notification and investigation process.[138] The most that the provisions, and particularly the guiding principle of fairness, establish is that if a National Board, in making a decision in the course of an investigation, is provided with information indicating that the decision would have a material adverse impact on a practitioner, it should consider that information in making its decision.

138 In the present case, there is an additional factor which indicates that the financial impact on Mr Wilks was a relevant consideration in the context of the National Law scheme relating to investigations. The Board did engage in a show cause process following its proposal to take immediate action, and in that context received information about the material adverse professional and financial impact on Mr Wilks of any potential immediate action affecting his registration. That show cause procedure having occurred in the context of the investigation process, it would in my view be artificial for the Board not to be required to consider that information in making a decision which would significantly prolong the duration of the investigation in a way that would be likely to cause adverse professional and financial impacts of the same or a similar kind which had been identified as likely to arise from any action with respect to his registration.

139 For these reasons, in the context of the statutory scheme, a material financial impact on the practitioner is in my view, a consideration that the Board was required to consider in making the decision, in the oversight of the investigation, to put the investigation on hold.

140 The question is then whether the Board did consider the information it had as to the financial impact on Mr Wilks. It was common ground between the parties that the Board had been made aware of Mr Wilks' financial situation and the impact of the ongoing investigation on his work as an IME for WorkSafe. The Investigation Report stated that Mr Wilks had:

...pointed to the financial impacts of the continuing Ahpra investigation as he is not able to work with WorkSafe Victoria as an Independent Medical Examiner pending its finalisation.[139]

141 The Board also had Mr Wilks' submission of 26 April 2022 in response to the Board's proposal to take immediate action, which was attached to the Investigation Report. That April submission referred to Mr Wilks' limited assets and stated that 'loss of the capacity to earn a living would have disastrous consequences for Mr Wilks'.[140] This submission had been made before WorkSafe had advised in May 2022 that it was suspending Mr Wilks' approval as an IME pending the outcome of the AHPRA investigation.[141]

142 Mr Wilks had, through his legal adviser, also informed AHPRA of this fact and that it was causing him significant loss of income and financial hardship by email on two occasions, 27 July 2022[142] and 15 November 2022.[143] While those emails were not listed separately in the attachments to the Investigation Report, it appears from the affidavit tendered on behalf of the Board that at least the email of 15 November 2022 was before the Board,[144] and the submissions of both the plaintiff[145] and the Board[146] proceeded on that basis. The 15 November 2022 email had advised that WorkSafe maintaining its suspension of Mr Wilks' approval to act as an IME had brought him to 'the point of financial collapse'.

143 The Board's reasons do not refer to the financial impact on Mr Wilks, but again I accept that the Board had regard to the Investigation Report. The Investigation Report, although referring to the 'financial impacts of the continuing Ahpra investigation as he is not able to work with WorkSafe Victoria as an Independent Medical Examiner pending its finalisation', did not refer to the extent of the financial impacts given the extent to which Mr Wilks' income depended on work as an IME. That was, however, made more apparent by the content of the 15 November 2022 email provided with the Investigation Report.

144 The Board's Record of Decision is brief, which is understandable in the context of a decision which was not the final resolution of the investigation but a decision made in the course of it. Nevertheless, the Board did identify 'Reasons' for its decision, from [4] to [12] of the Record of Decision, which addressed the nature of the notification, the defamation proceedings and the difficulties that AHPRA had experienced in obtaining information, and the written responses Mr Wilks had given, but only insofar as they addressed his submissions on the substantive issues under investigation. There was no specific reference to his submissions as to the financial impact on him. That is not decisive.[147] The reasons in the Record of Decision did refer to Mr Wilks not being subject to any restrictions on his registration 'that would impact his ability to practice';[148] but did not refer to the practical effect that the investigation was having on his ability to practice, given WorkSafe's suspension of his authority to act as an IME while the investigation was ongoing. Nevertheless that reference, in combination with its statement that it considered the Investigation Report, does indicate that the Board turned its attention in a general way to the impact of a decision to put the investigation on hold on Mr Wilks' financial situation.

145 While the material before the Board as to the very significant financial impact that the investigation was having on Mr Wilks was such that the Board might have been expected to address it more directly in the reasons in the Record of Decision, I am not persuaded that the Board did not give it genuine consideration at all. While the Board has not given that consideration the weight that I might on review regard as appropriate, that is not the issue raised by a relevant considerations ground of review.

146 This aspect of the relevant considerations ground is also not established.

147 The plaintiff's case that the Decision was legally unreasonable was particularised in the amended originating motion as being based on the following matters:

• No evidentiary basis or sufficient evidentiary basis existed to support the making of [the Decision]; and/or
• The Defendant, having initially deferred to the investigation by Victoria Police refuses to accept the decision made by Victoria Police; and/or
• One or both decisions have been founded upon the wholly unreasonable hypothetical basis that persons who have refused to participate in the investigation may do so at some indefinite date in the future and particularly so in circumstances where the Defendant concedes that a resolution of the differing accounts cannot be reached without further evidence including participation by Ms Qu (Defendant's letter dated 1 February 2023); and/or
• The Defendant has concluded that it requires the further evidence to resolve differing accounts contained in my supporting information, the University of Melbourne findings and the Rowland Legg report, in circumstances where there are in fact no conflicting accounts contained in these materials requiring any resolution; and/or
• The Defendant failed to consider the financial impact that the second decision would have on the Plaintiff; and/or
• The Defendant did not consider s 160(1)(b)(ii) of the National Law which would permit it to later, of its own motion, open an investigation into the Plaintiff if it believes that his conduct is unsatisfactory; and/or
• The Defendant failed to use its power under Sched 5, Clause 1 of the National Law to pursue and progress the investigation; and/or
• The Defendant had sufficient information and materials to complete its investigations, and cannot reasonably rely on the possibility that prospective further information may become available.

Legal unreasonableness - the plaintiff's submissions

148 The plaintiff's submissions, rather than addressing all of the individual elements identified in the originating motion as particulars of unreasonableness, focussed essentially on three factors which rendered the decision unreasonable:

(a) The investigation had already been conducted over a lengthy period, with the notifications having been made on 15 and 16 August 2021, a decision to investigate made on 31 August 2021, and the decision to put the investigation on hold in 25 January 2023, and there had been no explanation in the Board's evidence for the delay.[149]

(b) The lengthy investigation had resulted in a situation where it was not possible to make a conclusion on the issue for investigation,[150] which led the investigator to recommend two alternative options, one of which was that the Board should take no further action under s 167(a), and then should Ms Qu wish to engage with AHPRA in future, or if further evidence or information was provided, the investigation could be continued.[151] The Board did not consider s 160(1)(b)(ii) of the National Law which permits the Board to, of its own motion, open an investigation into the plaintiff if it believes his conduct is unsatisfactory.[152]

(c) In circumstances where there was no prejudice to the Board to terminate the investigation, if it could be reopened, but significant prejudice to Mr Wilks in the form of the professional and financial consequences to him of the investigation continuing, and where the Decision to put the investigation on hold could not reasonably be said to be aimed at achieving ... the protection of the public and maintaining public confidence in the safety of services provided by registered health practitioners', the Decision is 'lacking in rational foundation and is capricious'.[153] The public would be just as protected whether the matter remains under investigation but on hold, or is finalised with the potential to 'reopen' the investigation if the defamation proceeding does result in any further relevant information becoming available.[154]

149 The plaintiff referred to the leading discussion of unreasonableness in Minister for Immigration and Citizenship v Li[155] and its identification of 'a decision which lacks an evidence and intelligible justification'.[156] He also relied more specifically on the judgment of Gummow J in Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation and Ors ('Fares Rural Meat & Livestock').[157] Justice Gummow referred to the analysis of the legal unreasonableness ground of review by Dr Margaret Allars.[158] His Honour stated:

...Dr Allars seeks to instil a measure of order into the authorities dealing with the Wednesbury test by identifying three paradigm cases of unreasonableness. All of them are consistent with a view of Lord Greene's 'doctrine' as rooted in the law as to misuse of fiduciary powers: see Grubb_, Powers, Trusts and Classes of Objects_, [1982] 46 Conv 432 at 438. The three 'paradigms' are outlined in paras 5.54-5.57 of Dr Allars' work. The first involves the capricious selection of one of a number of powers open to an administrator in a given situation to achieve a desired objective, the choice being capricious or inappropriate in that the exercise of the power chosen involves an invasion of the common law rights of the citizen, whereas the other powers would not. The second 'paradigm' involves discrimination without justification, a benefit or detriment being distributed unequally amongst the class of persons who are the objects of the power. It is the third 'paradigm' which the applicant would seek to attract to the facts of the present case. In effect, the submission is that on the facts as I have detailed them, the exercise of power by withdrawing the applicant's approval was out of proportion in relation to the scope of the power. A decision which provides an example of such disproportion is the decision of Burchett J in Edelsten v Wilcox [1988] FCA 204; (1988) 83 ALR 99 at 114 . An example of a case which fell on the other side of the line is the decision of the Full Court in Wouters v DCT (NSW) (1988) 84 ALR 577 at 584-5.[159]

150 Justice Gummow did not in that case find that the relevant decision maker had acted unreasonably, but this did not detract from his Honour's apparent acceptance of Professor Allars' analysis of what may constitute established forms of legally unreasonable decision making.[160]

The public will be just as protected whether the matter remains under investigation, or is finalised but then possibly reopened if the defamation proceeding does result in any further relevant information becoming available.[161]

Legal unreasonableness - the Board's submissions

152 The Board's submissions on unreasonableness focussed first on the issue of whether delay would contravene principles of legal unreasonableness. It was contended that the question of whether delay would be unreasonable was to be determined by reference to the standard identified in Thornton v Repatriation Commission, whether 'there are circumstances which a reasonable man might consider render [the] delay justified and not capricious'.[162] It was contended that where the effect of the Decision was to 'defer the Board's final decision until further (anticipated) information can be obtained', the Decision was not capricious or perverse.[163] It was also submitted that the application for an order in the nature of mandamus requiring the Board to determine to take 'no further action' was misconceived given that mandamus does not require any particular decision to be made.[164]

153 The Board acknowledged in submissions that the statutory obligation in s 162 could be relevant to a legal unreasonableness of the Decision.[165]

154 With respect to the contention that the Board was wrong, when presented with the two alternative recommendations, both of which offered the same protection to the public, so that to choose one involving the impact on the plaintiff was unreasonable, the Board contended that this was the wrong starting point, and that it was necessary, in order to establish unreasonableness, to show that 'there was no meaningful choice between the two' and that the only reasonable decision would be to take no further action.[166]

155 The Board contended that it was not a satisfactory option to take no further action, with the potential to reopen the investigation, because the consequences of concluding the investigation is 'that there's no investigator', so that none of the powers in Schedule 5 of the National Law remain available, and no investigator to liaise with the complainant or (in this case) to monitor the County Court proceeding.[167]

Legal unreasonableness - Board's failure to obtain Ms Qu statement

156 As noted above, the plaintiff also sought following the hearing to rely on the fact that the Board had proceeded to make the Decision without making any attempt to obtain a copy of the statement of Ms Qu to Victoria Police. The plaintiff submitted that I should find that the investigator had Ms Qu's statement to the Police by around September 2022 and by no later than November 2022 had reviewed it. It was contended that in these circumstances, relying on the principles in Prasad v Minister for Immigration & Ethnic Affairs (Prasad)[168] it was unreasonable for the Board to proceed to make the Decision, given that it was 'obvious' that there was material 'readily available which is centrally relevant to the decision to be made'.[169]

157 The Board noted that the reliance on the issue in the context of the legal unreasonableness ground was outside the scope of the amended originating motion as well as the direction requesting a further submission, but that in any event, the new point had no substance. The jurisdictional error constituted by a failure to seek further information arises only on rare occasions and is to be tested by the high threshold of legal unreasonableness, where a decision maker has failed to 'make an obvious inquiry about a critical fact, the existence of which is easily ascertained'.[170] It was not made out because:

(a) It was not 'obvious' to the Board that Ms Qu made a statement to Victoria Police; and

(b) Ms Qu's Police Statement was not a 'critical fact' in circumstances where the Board did have the initial complaint from Ms Qu dated 5 July 2021 and there were differing accounts before the Board, which was one of the reasons the Board concluded it was necessary to obtain further evidence from Ms Qu, when it made the Decision.[171]

158 The principles as to the narrow class of case in which a decision will be affected by jurisdictional error by reason of it being legally unreasonable are those discussed by the High Court in Minister for Immigration and Citizenship v Li[172] and more recently in Minister for Immigration and Border Protection v SZVFW.[173] The plurality in Li described legal unreasonableness as a 'conclusion which may be applied to a decision which lacks an evident and intelligible justification',[174] a characterisation which was reiterated in SZVFW.[175] In SZFVW, Nettle and Gordon JJ observed that a conclusion of unreasonableness did not necessarily entail identification of a specific legal error, as the error may be made evident 'by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied on the exercise of the statutory power'.[176]

159 In Li, Hayne, Kiefel and Bell JJ recognised that 'more specific errors in decision-making ... may also be seen as encompassed by unreasonableness', including, as recognised by Mason J in Peko-Wallsend, where an administrative decision is manifestly unreasonable because it 'has failed to give adequate weight to a relevant factor of great importance or has given excessive weight to a relevant factor of no importance'.[177] Their Honours observed:

Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.[178]

160 Their Honours then referred to Gummow J's consideration in Fares Rural Meat & Livestock of Professor Allars' 'analysis of three paradigm cases of unreasonableness'. Hayne, Kiefel and Bell JJ observed that:

... consideration could be given to whether the Tribunal gave excessive weight - more than was reasonably necessary - to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached. However, the submissions in this case do not draw upon such an analysis.[179]

161 The Court's discussion of Fares Rural Meat & Livestock indicates the continuing potential relevance of the three paradigms identified by Professor Allars, namely:

(a) 'the capricious selection of one of a number of powers open to an administrator in a given situation to achieve a desired objective, the choice being capricious or inappropriate in that the exercise of the power chosen involves an invasion of the common law rights of the citizen, whereas the other powers would not';

(b) without justification, a benefit or detriment being distributed unequally amongst the class of persons who are the objects of the power;

(c) an unreasonably disproportionate exercise of power by reference to the power's scope and purpose.[180]

162 These analyses, identifying the potential for the result of a decision making process to indicate unreasonableness, as well as specific errors in the decision making process, and the paradigms of unreasonable decision making identified in Fares Rural Meat & Livestock all have some relevance in considering the Decision in the present case.

Preliminary issue - the ability to 'reopen' the investigation if the Board decided to take no further action

163 The Investigation Report provided two options to the Board of either placing the notification and investigation on hold until the conclusion of the defamation proceeding, or deciding to take no further action with the potential that the notification could be 're-opened' and the investigation 'continued' at a later time.[181] The Board, although not expressly setting out or discussing those two options, apparently proceeded on the basis of those two options, noting that it stated that it had 'considered the investigator's report' and identified its decision in the terms of option 'A' identified in the Investigation Report.[182]

164 The investigator plainly considered that it would be open, if the Board decided to 'take no further action', to revisit the subject matter of the notification, either through Ms Qu making a notification or if further information was provided to AHPRA.[183] The Board did not in its reasons in the Record of Decision state that it did not consider that course would be open. The plaintiff takes the point in its submissions as to unreasonableness that the Board did not consider that s 160(1)(b) of the National Law would in fact permit it to open an investigation into the plaintiff if it believed, on receipt of further information, that the plaintiff's conduct was unsatisfactory.

165 The Board's submissions on review, notwithstanding the terms of the recommendations in the Investigation Report, did take issue with whether it would be possible to bring the matter back before the Board, contending that the consequence of the Board electing to take no further action, would be that there is no investigator available to monitor the matter and report back to the Board.[184]

166 In these circumstances it is appropriate to consider first whether the National Law would in fact have provided for the course anticipated by option B in the Investigation Report, namely that after the Board decided under s 167(a) to take no further action on the notifications before it, the subject matter of the notifications could nevertheless come back before the Board.

167 The provisions of Division 8 relating to investigations do not support the availability of a power, after the Board makes a decision under s 167(a) to take no further action, to 're-open' the notification or 'continue' the investigation, which were the terms used in the Investigation Report.[185] A decision under s 167 falls to be made after considering the investigator's report under s 166, which is provided only 'after completing an investigation'. The investigation will be completed when the Board makes its decision under s 167 and the effect of a decision to 'take no further action in relation to the matter' as provided for by s 167(a) is, in my view, to then foreclose the potential to take any further action with respect to that investigation.

168 However, even if the language of the Investigation Report misconceived the power available to the Board, there would be other avenues for the Board to consider the conduct of Mr Wilks if (as contemplated by the Investigation Report and the Board) further relevant information became available in future:

(a) as submitted by the plaintiff, the Board has power under s 160(1)(b)(ii) to investigate a practitioner of its own motion if it believes that (A) the way the practitioner practises the profession is or may be unsatisfactory; or (B) the practitioner's conduct is or may be unsatisfactory;

(b) it is possible that Ms Qu may wish to make her own notification, when the defamation proceeding is concluded.

169 The Board contended that the difficulty with the first option is that the potential for the Board to become aware of information that may lead it to exercise its own motion power under s 160(1)(b)(ii) is that it is 'much more chance-y than having an investigation that remains open with an investigator appointed' and would not confer the degree of control that would arise with an extant investigation.[187] However the Board made clear that it did not take the position that there were no mechanisms that could bring the matter back to the Board in the future and enable it to take its own motion action under s 160.[188]

170 It was submitted by the plaintiff that one mechanism by which the Board could monitor the situation was through its s 35 functions. This would include in particular the broad function of doing 'anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme' in s 35(1)(q), which would include anything necessary for the exercise of powers under s 160(1)(b).[189]

171 The power of the Board to investigate a registered health practitioner or student of its own motion under s 160(1)(b)(ii) arises when the Board 'for any other reason [than a notification] believes' a practitioner or student has or may have an impairment or that their conduct or the way they practise the provision is or may be unsatisfactory. For this power to have any content it must be the case that the Board can inform itself and reach the relevant belief when an investigation is not yet on foot. The way in which the Board may do this may be through information coming to a member, or through using its powers of delegation of its various functions to AHPRA staff or contractors conferred by s 37 of the National Law. It is not necessary to determine precisely what the mechanism would be; but I am satisfied that it is possible for the Board to put itself in a position to receive information and form beliefs necessary to exercise its own motion power to investigate a matter. Further, in the present case, the power of the Board to investigate would arise if Ms Qu decided to make her own notification at some time in future.

172 There may well be limits on the power of the Board to investigate the allegations against Mr Wilks to the extent that the basis for the investigation replicated the information on which the notifications were based.[190] However, what was contemplated by the Investigation Report was further investigation in the event of either a new notification or new, materially relevant information in the nature of fresh evidence (such as a County Court judgment on the defamation proceeding, or an interview with Ms Qu). There would not appear to be a limit on a new investigation in such a situation.

173 I am satisfied that the Board would have a power to investigate matters relevant to the allegations against Mr Wilks should material new information become available or a new notification be made, broadly consistent with the power referred to in the Investigation Report, should it have decided to take no further action on the investigation before it.

174 The Board's decision of 25 January 2023 was to place the investigation of the notifications about Mr Wilks, 'on hold' pending the conclusion of the defamation proceedings.

175 The reasons for putting the matter on hold were expressed to be that:

(a) the decision was 'in accordance with the Ahpra regulatory operations procedural documentation and Guidelines for Part 8 matters being placed on hold';[191]

(b) AHPRA had currently been unable to 'conduct a fulsome investigation' because of the defamation proceedings';

(c) it was appropriate to place the matter on hold until after the defamation proceeding concludes, because if the proceeding resulted in a final hearing, the Court's determinations 'are likely to include a consideration of by the Court as to whether Ms Qu's claims are substantially true or whether they constitute a false representation', and Ms Qu 'may be in a position to engage with Ahpra' at that time.

176 The effect of the Decision was to keep open an investigation of notifications made in mid-August 2021, which investigation had been commenced by a decision made on 31 August 2021. The investigation had been on foot for almost 17 months.

177 The period for which the matter would then be on hold by reason of the Decision was uncertain. While the matter was put on hold pending a specific event, the conclusion of the defamation proceeding, it did remain the case that this was anticipated not to be likely to arise for 'at least a further 12-18 months'.[192] It was also recognised that there may not be a final hearing of the defamation proceeding (and thus no judgment of the County Court) and that Ms Qu's potential cooperation with the Board after conclusion of the defamation proceeding was also not certain.[193]

178 There was also no real explanation to the Board in the Investigation Report as to why the investigation had to that point taken as long as it had. The defamation proceeding had been on foot since July 2021, prior to the notifications being made, as was evident from the articles in The Age which were referred to in the notifications, so that the 'difficulties obtaining evidence ... due to the ongoing defamation proceedings' would either have been apparent from early in the investigation, or should have been made ascertained reasonably rapidly. The Victoria Police investigation had concluded in July 2022 without charges and it was not clear from the material why the AHPRA investigation had taken so long to reach the point where it was evident to the investigator that it could not progress further.

179 The lengthy duration of the investigation by the time of the Decision should have been a matter for serious concern, given the obligation of the Board in s 162 of the National Law to ensure that an investigator it directs to conduct an investigation conducts the investigation as quickly as practicable, having regard to the nature of the matter to be investigated. That obligation under s 162 should also have been prominent in the consideration of the Board of the decision, given that (as discussed above) the Board was exercising a power arising from its functions to oversee investigations when it made the Decision.

180 The future delay of uncertain duration in concluding the investigation which would be caused by the Decision, following from an investigation which had already continued for 17 months, raises the possibility that the result of the decision is so unreasonable that, taking into account the observations of Nettle and Gordon JJ in SZFVW,[194] it could not have been reached if proper reasoning had been applied by the Board in exercising powers to oversee the investigation in the context of its duty to ensure that an investigation is conducted as quickly as is practicable.

181 I do consider that possibility is open. But it is unnecessary to infer unreasonableness only from that result, as a consideration of the reasons given for the Decision by the Board also do not disclose an evident or intelligible justification of the Board's decision to put the investigation on hold, rather than to take no further action with the potential to investigate the matter again if new information or a further notification was made.

182 There is no discussion at all in the Record of Decision of why the option to put the matter on hold was preferred over the other option (or indeed some option not put to the Board but within its discretion, in its oversight of the investigation, to direct). Taking the reasons expressed for the Decision, they also do not disclose any reasons for deciding between the two options implicitly or by inference:

(a) The reference to the 'Ahpra regulatory operations procedural documentation and Guidelines for Part 8 matters being placed on hold' do not disclose any reason for choosing to put the matter on hold rather than taking further action and returning to it. The content of these documents were not disclosed in the Record of Decision other than to relate the Guidelines to the observation that 'circumstances where management of a notification may be deferred include concurrent civil proceedings' and that the Board should exercise caution to ensure that management of a notification does not interfere with court proceedings. There was no apparent consideration of why that objective could not equally have been met by taking no further action with the potential of a new investigation should any new information or notification arise.

(b) The fact that AHPRA had currently been unable to 'conduct a fulsome investigation' because of the defamation proceedings', while a rational reason why it was not possible to obtain the further information from Ms Qu that the investigators thought desirable, did not provide any reason why placing the matter on hold would be preferable to taking no further action.

(c) The possibility that there may be a final judgment on the defamation proceeding, and that Ms Qu may engage with the AHPRA investigation also did not provide a reason why it would be preferable to put the investigation on hold, rather than take no further action and potentially institute a new investigation if that new evidence did arise.

183 A factor that the Board may have been expected to make prominent in its consideration was the objective and guiding principle of protection of the public. There is nothing in the reasons which discloses any consideration by the Board of that issue. The Board had already determined, in exercising its powers under s 156 of the National Law following the show cause process on the immediate action proposal, that it was not necessary to take immediate action, presumably because it did not believe that there was any serious risk to persons or a need to take action to protect public health or safety within the meaning of s 156(1)(a) or (b).[195]

184 In circumstances where, as observed by the Board, Mr Wilks was not subject to any restrictions on his registration that would impact his ability to practise while the matter is on hold, there was no perceived need to restrict his registration or take other measures to protect the public due to anything arising in the course of the investigation, and no apparent protection of the public achieved by placing the matter on hold. Certainly there was no articulation of any reason why the public would be more protected by a decision to place the investigation on hold than a decision to take no further action and await any future new evidence or notification.

185 Considering the Board's reasons for the Decision in the context of the statutory scheme, I cannot identify an evident and intelligible justification for choosing to put the investigation on hold rather than deciding to take no further action, in circumstances where if the new evidence anticipated by the investigator materialised, the Board could initiate a further investigation.

186 This would suffice to make the Decision legally unreasonable. However, my conclusion is materially reinforced by reference to the first paradigm of unreasonableness referred to in Fares Rural Meat & Livestock, namely 'the capricious selection of one of a number of powers open to an administrator in a given situation to achieve a desired objective, the choice being capricious or inappropriate in that the exercise of the power chosen involves an invasion of the common law rights of the citizen, whereas the other powers would not'.[196]

187 In this case, the Board was considering two options with respect to the investigation. For the reasons above, there was no material difference between these options for achieving the relevant objective of further investigating the matter if new evidence arose or a new notification was made. There was also nothing to suggest that either option would more effectively protect the public. However, the Board did have evidence, in the 15 November 2022 email, that the continuation of the investigation would mean that WorkSafe would continue to suspend Mr Wilks from acting as an IME, and that the investigation had brought Mr Wilks to the point of financial collapse. Although I accept that it considered the issue of the financial impact on Mr Wilks, the Board did not engage with that evidence in any meaningful way. The Board's statement that 'Mr Wilks was not subject to any restrictions on his registration that would impact his ability to practice while the matter is on hold' indicates either that the consideration as to WorkSafe's suspension of Mr Wilks IME accreditation and its financial impact was given no weight, or perversely minimised. While that insufficient engagement with the information as to financial impact is not enough to invalidate the consideration pursuant to a relevant considerations ground of review, it is something that I can take into account in considering reasonableness.

188 In circumstances where one option - to keep the investigation on hold - would expose Mr Wilks to serious adverse financial and professional impact, which would not be occasioned by the other option - to take no further action - the Decision to take the former course and put the investigation on hold was, in my view, capricious and inappropriate. It was also not consistent with the statutory objective that the scheme operate in a fair way.

189 In all the circumstances, I consider that the Decision was legally unreasonable.

Other matters raised by the plaintiff and the Board

190 In light of this conclusion it is not necessary to engage with some of the remaining matters identified by the plaintiff as demonstrating unreasonableness. However I make the following observations for the sake of completeness:

(a) The fact that the Board had concluded further evidence was required to resolve the University of Melbourne and Legg report findings, and that the Board 'already had sufficient information and materials to complete its investigations' were not matters that indicated legal unreasonableness. These were matters which fell to the Board and were comfortably within the scope its area of decisional freedom.[197]

(b) The Board's failure to 'use its power under Sched 5, Clause 1 of the National Law to pursue and progress the investigation' by requiring Ms Q 'to give information or to attend and answer questions' was not unreasonable in the circumstances where there was an ongoing defamation proceeding. The Investigation Report disclosed that Ms Qu had been approached and had indicated a general willingness to speak to Ahpra about the notification' but after the defamation proceeding which Mr Wilks had initiated against her. It was not unreasonable to decline to use the coercive power in clause 1 of Schedule 5 in these circumstances.

(c) I do not accept that it was unreasonable, by reference to the principles in Prasad, for the Board not to have sought Ms Qu's statement. As submitted by the Board, it was not obvious from the Investigation Report that there was a statement by Ms Qu to Victoria Police, as there was only a brief reference to the Police Investigation in the Investigation Report, and no identification of the material which had been obtained from Victoria Police.[198] I also accept that it was not a critical fact in the necessary sense where the Board had an initial complaint from Ms Qu, and a number of differing accounts before the Board, which the investigator wanted to address by obtaining further evidence from Ms Qu directly. The police statement of Ms Qu would not necessarily have assisted the Board to make the Decision where it already had a number of accounts which could not be reconciled.

191 It may be useful to make some observations as to the Board's submission that, to make out legal unreasonableness, it was necessary to establish that 'the only reasonable option would have been to take no further action, rather than to decide to put the investigation on hold'.[199] The Board was presented in the Investigation Report with two alternative recommendations. It treated itself as if it could only adopt one of those two alternatives. For the reasons above, I have concluded that the Decision in adopting the alternative to put the investigation on hold was legally unreasonable.

192 However, it is also not clear that the Board could ever be limited to adopting specific recommendations made by an investigator, even when exercising the decision making powers under s 167 after an investigation is completed. But when it is accepted that the Decision was made in the exercise of the Board's s 35(1)(g) function and power to oversee the investigation, and that the investigator's report was appropriately considered to be a request for direction, it could not be accepted that the Board must be limited to the options put forward by the investigator. That is particularly the case if one or more of the options was unsatisfactory and did not take into account all avenues potentially available under the statutory scheme, and which may be more consistent with the Board's obligations under the scheme, such as the s 162 obligation to ensure that an investigation is conducted as quickly as practicable having regard to the nature of the matter.

193 The Board's Decision was legally unreasonable and, therefore, affected by jurisdictional error. The plaintiff sought an order for certiorari with respect to the Decision, an order which the Board accepted that the Court has power to grant.[200] It will be appropriate to make that order.

194 The plaintiff also sought an order for mandamus, either to remit the matter to the Board for decision under s 167 of the National Law; or if the investigation is ongoing, to direct the investigator to continue the investigation as quickly as practicable as required by s 162 of the National Law.

195 I have accepted that the investigation was not complete, and that the Investigation Report was not a report provided pursuant to s 166 of the National Law. In these circumstances no duty could arise under s 167 for the Board to make a decision, and it would be inappropriate to order mandamus requiring the Board to make a decision under s 167. I also do not consider it appropriate to grant an order in the nature of mandamus requiring the Board to direct the investigation to be continued as quickly as practicable pursuant to s 162. The investigator has identified the step that is considered necessary to continue the investigation - that is, to await the outcome of the defamation proceeding and then to seek to interview Ms Qu and potentially to obtain other evidence. That step is not one which is within the investigator's control to expedite.

196 With the Board's Decision set aside, there may remain other options for the Board. It may consider the Investigation Report and determine that it is appropriate to accept the other option put to it of taking no further action, that being one of the options put to it. Alternatively, it may consider that it is appropriate to consider the investigation complete, noting the indefinite delay that would be involved in seeking the further information identified by the investigator. It would be open to the Board to require an Investigation Report to be provided under s 166, based on all of the information available to the investigator, including Ms Qu's statement to Victoria Police and all other information provided by Victoria Police. These and potentially other avenues are options within the Board's discretion, on which it is not appropriate for me to say anything further.

197 In circumstances where different alternatives are open, I consider it appropriate to permit the parties to consider my reasons, and I will hear them on the question of the appropriate orders to be made.

[1] Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law). Section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) provides that the National Law applies as a law of Victoria.

[2] Court Book (CB) 459; Exhibit SN-1 to Affidavit of Siran Jennifer Nyabally affirmed 31 May 2023 (Nyabally Affidavit), 69.

[3] CB 871; Affidavit of Robert Wilks sworn 22 February 2023 (First Wilks Affidavit), [8].

[4] CB 12; First Wilks Affidavit, [10].

[5] CB 11; First Wilks Affidavit, [7]-[8].

[6] CB 16; First Wilks Affidavit, [28].

[7] CB 16-17; First Wilks Affidavit, [31].

[8] CB 10; First Wilks Affidavit, [5].

[9] CB 12; First Wilks Affidavit, [12].

[10] CB 68; Exhibit RW-1 to First Wilks Affidavit, 49.

[11] CB 12; First Wilks Affidavit, [12].

[12] CB 33; Exhibit RW-1 to First Wilks Affidavit, 14.

[13] CB 12; First Wilks Affidavit, [12].

[14] CB 13; First Wilks Affidavit, [14]-[15].

[15] CB 291; Exhibit RW-1 to First Wilks Affidavit, 272.

[16] CB 292; Exhibit RW-1 to First Wilks Affidavit, 273.

[17] CB 297; Exhibit RW-1 to First Wilks Affidavit, 278.

[18] CB 282; Exhibit RW-1 to First Wilks Affidavit, 263.

[19] CB 303; Exhibit RW-1 to First Wilks Affidavit, 284.

[20] CB 307; Exhibit RW-1 to First Wilks Affidavit, 288.

[21] CB 268; Exhibit RW-1 to First Wilks Affidavit, 249.

[22] CB 271; Exhibit RW-1 to First Wilks Affidavit, 252.

[23] CB 261; Exhibit RW-1 to First Wilks Affidavit, 242.

[24] CB 264; Exhibit RW-1 to First Wilks Affidavit, 244.

[25] CB 275; Exhibit RW-1 to First Wilks Affidavit, 256.

[26] CB 278; Exhibit RW-1 to First Wilks Affidavit, 259.

[27] CB 13, 20; First Wilks Affidavit, [16]; Exhibit RW-1 to First Wilks Affidavit, 1.

[28] CB 13; First Wilks Affidavit, [17].

[29] CB 14, 22; First Wilks Affidavit, [18]; Exhibit RW-1 to First Wilks Affidavit, 3.

[30] CB 14; First Wilks Affidavit, [19].

[31] CB 25, 31; Exhibit RW-1 to First Wilks Affidavit, 6, 12.

[32] CB 16, 376-377; First Wilks Affidavit, [29]; Exhibit RW-1 to First Wilks Affidavit, 357-358.

[33] CB 376-377; Exhibit RW-1 to First Wilks Affidavit, 357-358.

[34] CB 16; First Wilks Affidavit, [30].

[35] CB 378-379; Exhibit RW-1 to First Wilks Affidavit, 359-360.

[36] CB 339; Exhibit SN-1 to Nyabally Affidavit, 320. The Board's investigation report identified the Victoria Police investigation as having been closed in July 2022: CB 572; Exhibit SN-1 to Nyabally Affidavit, 182.

[37] CB 842; Exhibit SN-1 to Nyabally Affidavit, 452.

[38] CB 844; Exhibit SN-1 to Nyabally Affidavit, 454.

[39] CB 394, 459; Nyabally Affidavit, [6]; Exhibit SN-1 to Nyabally Affidavit, 69.

[40] CB 15, 244-246; First Wilks Affidavit, [24]; Exhibit RW-1 to First Wilks Affidavit, 225-227.

[41] CB 15, 247; First Wilks Affidavit, [25]; Exhibit RW-1 to First Wilks Affidavit, 228-312.

[42] CB 332-333; Exhibit RW-1 to First Wilks Affidavit, 313-14.

[43] CB 332-334; Exhibit RW-1 to First Wilks Affidavit, 313-15.

[44] CB 642; Exhibit SN-1 to Nyabally Affidavit, 252.

[45] CB 653-654; Exhibit SN-1 to Nyabally Affidavit, 263-264.

[46] CB 333; Exhibit RW-1 to First Wilks Affidavit, 314.

[47] CB 341-342; Exhibit RW-1 to First Wilks Affidavit, 322-323.

[48] CB 341; Exhibit RW-1 to First Wilks Affidavit, 322.

[49] CB 340; Exhibit RW-1 to First Wilks Affidavit, 321.

[50] CB 339; Exhibit RW-1 to First Wilks Affidavit, 320.

[51] CB 344-345; Exhibit RW-1 to First Wilks Affidavit, 325-326.

[52] CB 347-348; Exhibit RW-1 to First Wilks Affidavit, 328-329.

[53] CB 348; Exhibit RW-1 to First Wilks Affidavit, 329.

[54] CB 366-368; Exhibit RW-1 to First Wilks Affidavit, 347-349.

[55] CB 368; Exhibit RW-1 to First Wilks Affidavit, 349.

[56] CB 369; Exhibit RW-1 to First Wilks Affidavit, 350.

[57] CB 374; Exhibit RW-1 to First Wilks Affidavit, 355.

[58] CB 395; Nyabally Affidavit, [19]. Investigation Report at CB 570-876; Exhibit SN-1 to Nyabally Affidavit, 180-477.

[59] CB 570; Exhibit SN-1 to Nyabally Affidavit, 180.

[60] CB 570; Exhibit SN-1 to Nyabally Affidavit, 180.

[61] CB 572; Exhibit SN-1 to Nyabally Affidavit, 182.

[62] CB 572; Exhibit SN-1 to Nyabally Affidavit, 182.

[63] CB 572; Exhibit SN-1 to Nyabally Affidavit, 182.

[64] CB 572-573; Exhibit SN-1 to Nyabally Affidavit, 182-183.

[65] CB 574; Exhibit SN-1 to Nyabally Affidavit, 184.

[66] CB 574; Exhibit SN-1 to Nyabally Affidavit, 184.

[67] CB 575; Exhibit SN-1 to Nyabally Affidavit, 185.

[68] CB 868-874; Exhibit SN-1 to Nyabally Affidavit, 478-484.

[69] CB 871; Exhibit SN-1 to Nyabally Affidavit, 481.

[70] Paragraphs [4]-[10] in the Record of Decision, which had been paragraphs [1]-[7] of the Investigation Report.

[71] CB 872; Exhibit SN-1 to Nyabally Affidavit, 482.

[74] CB 2-3; Originating Motion filed 21 February 2023.

[75] CB 959; Plaintiff's Outline of Submissions dated 31 July 2023.

[76] Transcript 22/11/23, T32.26-33.01.

[79] Amended Originating Motion dated 22 November 2023, 3-4.

[80] Plaintiff's Outline of Submissions dated 31 July 2023, [4.1].

[81] Plaintiff's Outline of Submissions dated 31 July 2023, [3.4].

[82] Plaintiff's Outline of Oral Submissions dated 21 November 2023, [9]-[13].

[83] Transcript 22/11/23, T38.24-.29. Section 35(1)(q) is the function to 'do anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme'.

[84] Defendant's Outline of Submissions dated 18 August 2023, [78]-[83].

[85] Defendant's Outline of Submissions dated 18 August 2023, [76].

[86] Item 22(1) of Schedule 7 of the National Law provides 'If this Law confers a function or power on a person or body, the function may be performed, or the power may be exercised, from time to time as occasion requires'.

[90] Brygel v Stewart-Thornton [1992] VicRp 70; [1992] 2 VR 387, 397 (JD Phillips J), citing Posner v Collector for Inter-State Destitute Persons (Vic) [1946] HCA 50; (1947) 74 CLR 461, 490 (Williams J); Re Dalton (1995) 120 FLR 408, 411 (Batt J), citing Keller v City of Sandringham [1996] VicRp 23; [1996] 1 VR 356, 382-3 (Batt J); Ashton Millson Investments Ltd v Colonial Ltd [2003] VSCA 188, [15] (Buchanan JA), [1], [2] (Ormiston and Batt JJA agreeing.

[91] Cf Defendant's Outline of Submissions dated 18 August 2023, [86]-[87].

[92] Defendant's Outline of Submissions dated 18 August 2023, [87(d)].

[93] CB 575; Exhibit SN-1 to Nyabally Affidavit, 185.

[94] Transcript 22/11/23, T67.26-680.8. Defendant's outline of submissions dated 18 August 2023, [84]-[85].

[95] Defendant's outline of submissions dated 18 August 2023, [86].

[97] CB 871; Exhibit SN-1 to Nyabally Affidavit, 481.

[98] CB 872; Exhibit SN-1 to Nyabally Affidavit, 482.

[100] Transcript 22/11/23, T88.31-89.27.

[101] See National Law, s 35(1)(g), 162, 163.

[102] In correspondence subsequent to the Decision, which was in evidence, AHPRA in correspondence to Mr Wilks' legal representative also stated 'One of the reasons Ahpra places matters on hold is so that we can be transparent in informing practitioners and notifiers that the matter cannot be progressed at this time': CB 928; Exhibit SN-1 to Nyabally Affidavit, 537.

[103] Transcript 22/11/23, T89.20-.27.

[104] Transcript 22/11/23, T93.10-.16.

[105] Plaintiff's submissions dated 31 July 2023, [4.4(c)].

[106] Plaintiff's Outline of Oral Submissions dated 21 November 2023, [16].

[107] Plaintiff's Outline of Oral Submissions dated 21 November 2023, [16]-[17].

[108] Plaintiff's Outline of Oral Submissions dated 21 November 2023, [18].

[109] Transcript 22/11/23, T32.03-.07.

[110] Defendant's Outline of Submissions dated August 2023, [90].

[111] Defendant's Outline of Submissions dated 18 August 2023, [90].

[112] Defendant's Outline of Submissions dated 18 August 2023, [93].

[114] Transcript 22/11/23, T100.03-.08, referring to CB 871.

[115] Transcript 22/11/23, T100.09-.10

[116] Transcript 22/11/23, T100.10-101.04.

[117] Transcript 22/11/23, T6.22-7.01, T25.30-T26.04, T32.03-.07, T85.11-.13.

[118] Transcript 22/11/23, T123.11-14.

[119] Affidavit of Robert Wilks sworn 20 July 2023 (Second Wilks Affidavit), [4](b).

[120] Plaintiff's Outline of Oral Submissions dated 21 November 2023, [18].

[121] CB 578; Exhibit SN-1 to Nyabally Affidavit, 186.

[122] Supplementary submission by the plaintiff 5 December 2023, [1]-[2].

[123] Defendant's Outline of Submissions dated 11 December 2023, [2]-[3].

[124] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J); Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197; (2015) 48 VR 129, 253, [384]-[386].

[125] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40 (Mason J).

[126] Singh v Minister for Home Affairs (2019) 267 FCR 200, 208-209 [30]-[34]; DVO16 v Minister for Immigration and Border Protection, 189 [12], 212-213 [77]; Tickner v Chapman ([1995] FCAFC 1726; 1995) 57 FCR 451, 462 (Black CJ), see also 495-496 (Kiefel J).

[127] Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662, 675 [29] (Kiefel, Bell, Keane, Nettle and Gordon JJ), citing Gummow J in Khan (by his next friend Khan) v Minister for Immigration and Ethnic Affairs [1987] FCA 713, 11.

[128] Donohue v Westin [2022] VSC 37, [23]. See also the discussion of recent authority on these expressions and the appropriate approach to the quality of a decision maker's evaluation by Cavanough J in McPadden v Secretary to the Department of Justice and Community Safety [2023] VSC 669, [72]-[85].

[129] Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135, [56] (Basten JA, Leeming JA and Sackville AJA agreeing).

[130] Transcript 22/11/23, T98.07-.30.

[131] National Law, ss 3(2)(a), 3A(1)(a).

[132] CB 573; Exhibit SN-1 to Nyabally Affidavit, 183.

[133] CB 573, Exhibit SN-1 to Nyabally Affidavit, 183.

[134] PlaintiffM1/2021 v Minister for Home Affairs (2022) 96 ALJR 497, [24]-[26] (Kiefel CJ, Keane, Gordon and Steward JJ).

[135] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, [25] (French CJ, Bell, Keane and Gordon JJ).

[136] Collector of Customs v Pozzolanic (1993) 43 FCR 289, 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

[137] CB 872; Exhibit SN-1 to Nyabally Affidavit, 482.

[138] See, for example, ss 152(3) and 161(4) which provide that the registered health practitioner or student need not be advised of a notification or of an investigation if the Board reasonably believes doing so would prejudice an investigation or place at risk a person's health or safety or place them at risk of intimidation or harassment; and the various grounds for taking immediate action in s 156(1) which are related to serious risk to persons and protection of public health or safety.

[139] CB 572; Exhibit SN-1 to Nyabally Affidavit, 182.

[140] CB 653-654; Exhibit SN-1 to Nyabally Affidavit, 263-264.

[141] CB 376; Exhibit RW-1 to First Wilks Affidavit, 357.

[142] CB 897; Exhibit SN-1 to Nyabally Affidavit, 507.

[143] CB 844; Exhibit SN-1 to Nyabally Affidavit, 454.

[144] The 15 November 2022 email provided, as an attachment, the County Court decision as to the Subpoena Objection by Melbourne University: CB 843-844; Exhibit SN-1 to Nyabally Affidavit, 453-4 (email) and CB 845-861; Exhibit SN-1 to Nyabally Affidavit 455-471 (County Court decision). The 'Wilks v Qu Subpoena Objection' was listed in the attachments to the Investigation Report and it appears to have been the case that the email was provided together with it.

[145] See Plaintiff's Outline of Oral Submissions dated 21 November 2023, [17].

[146] Transcript 22/11/23, T76.13-.22, T77.31-78.20.

[147] M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, 185-186 [25] (French CJ, Bell, Keane and Gordon JJ); Stojilkovic v Romas [2017] VSC 49, [19] (Keogh J); Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643, 654 [45] (Rares and Robertson JJ).

[148] CB 872; Exhibit SN-1 to Nyabally Affidavit, 482.

[149] Plaintiff's Outline of Submissions dated 31 July 2023, [4.4(c)]; Plaintiff's Submissions in Reply 24 August 2023, [5G], [5H].

[150] Identified in the Investigation Report, at [1], as 'Whether Mr Robert Wilks engaged in sexual contact, including sexual intercourse, with Ms Dory [sic] Qu without her consent in or around April 2021': CB 570, 575; Exhibit SN-1 to Nyabally Affidavit, 180, 185.

[151] Plaintiff's Outline of Submissions dated 31 July 2023, [4.4(c)], referring to Investigation Report, recommendation B.

[152] Plaintiff's Outline of Oral Submissions dated 21 November 2023, [20].

[153] Plaintiff's Outline of Submissions dated 31 July 2023, [4.4(c)].

[154] Plaintiff's Outline of Oral Submissions dated 21 November 2023, [21].

[155] [2012] HCA 61; (2013) 249 CLR 332.

[156] Plaintiff's Outline of Submissions dated 31 July 2023, [4.3], also citing Secretary, Department of Education and Training v Paul, [2020] VSCA 280, [102]-[106] (Tate, McLeish and Niall JJA).

[157] [1990] FCA 139; (1990) 96 ALR 153.

[158] Introduction to Administrative Law (Butterworths, 1990), [5.52].

[159] [1990] FCA 139; (1990) 96 ALR 153, 167-168.

[160] [1990] FCA 139; (1990) 96 ALR 153, 168.

[161] Plaintiff's Outline of Oral Submissions dated 21 November 2023, [21].

[162] Thornton v Repatriation Commission [1981] FCA 76; (1981) 52 FLR 285, 292 (Fisher J), followed by the Full Court of the Federal Court in ASP15 v Commonwealth [2016] FCAFC 145; (2016) 248 FCR 372, 379 [23] (Robertson, Griffiths and Bromwich JJ).

[163] Defendant's Outline of Submissions dated 18 August 2023, [64]-[71].

[164] Defendant's Outline of Submissions dated 18 August 2023, [72]-[74], citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, 399. See also Transcript 22/11/23 T56.07-57.23.

[165] Transcript 22/11/23, T61.14-.20.

[166] Transcript 22/11/23, T61.28-62.09.

[167] Transcript 22/11/23, T62.27-63.06.

[168] (1995) 6 FCR 155, 167-170 (Wilcox J); referred to in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CR 273 (Mason CJ and Deane J) and in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439, 450-451 [18]-[20] (Kiefel CJ, Bell, Gageler and Keane JJ).

[169] Supplementary Submission of the Plaintiff, 5 December 2023, [5]-[6].

[170] Citing Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123, [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[171] Defendant's Outline of Submissions dated 11 December 2023, [8]-[14].

[172] [2012] HCA 61; (2013) 249 CLR 332.

[173] [2018] HCA 30; (2018) 264 CLR 541.

[174] [2012] HCA 61; (2013) 249 CLR 332, 367, [76].

[175] [2018] HCA 30; (2018) 264 CLR 541, 550, [10] (Kiefel CJ); 573, [82] (Nettle and Gordon JJ).

[176] [2018] HCA 30; (2018) 264 CLR 541, 573, [82] (Nettle and Gordon JJ).

[177] [2012] HCA 61; (2013) 249 CLR 332, 365-366, [72].

[178] [2012] HCA 61; (2013) 249 CLR 332, 366, [72].

[179] [2012] HCA 61; (2013) 249 CLR 332, [74].

[180] As to disproportionality, see also the observations of Kiefel CJ in Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 352, [30].

[181] CB 575; Exhibit SN-1 to Nyabally Affidavit, 185.

[182] CB 871-872, Exhibit SN-1 to Nyabally Affidavit, 481-482.

[183] CB 575; Exhibit SN-1 to Nyabally Affidavit, 185.

[184] Transcript 22/11/23, T62.27-T63.06.

[185] CB 575; Exhibit SN-1 to Nyabally Affidavit, 185, [6].

[187] Transcript 22/11/23, T104.24- T105.03.

[188] Transcript 22/11/23, T104.23-.24.

[189] Transcript 22/11/23, T115.5-.28.

[190] See for example the discussion of Nettle JA in Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301, [43]-[86].

[191] Record of Decision [3(a)]; CB 871; Exhibit SN-1 to Nyabally Affidavit, 481.

[192] Record of Decision [7], CB 871; Exhibit SN-1 to Nyabally Affidavit, 481.

[193] Record of Decision [12](b) and (c). CB 872; Exhibit SN-1 to Nyabally Affidavit, 482.

[194] [2018] HCA 30; (2018) 264 CLR 541, 573, [82] (Nettle and Gordon JJ).

[195] Nyabally Affidavit, Exhibit, 472-476.

[196] Fares Rural Meat and Livestock [1990] FCA 139; (1990) 96 ALR 153, 167.

[197] [2012] HCA 61; (2013) 249 CLR 332, 351 (French CJ).

[198] CB 572; Exhibit SN-1 to Nyabally Affidavit, 182.

[199] Transcript 22/11/23, T62.04-.09.

[200] Transcript 22/11/23, T87.09-.12. The Board opposed the order in circumstances where it contended that the Decision was not affected by error, but accepted that the Decision was one which was amenable to certiorari.