SAT proceedings were commenced by the Medical Board of Australia (MBA) against the Practitioner in late 2014 following receipt of a notification from the patient’s widow in 2012. The notification related to the performance of an angioplasty procedure for the patient in 2005. In July 2015 the MBA amended the application to include further claims, being the “False Representation Claim” and the “Inadequate Training Claim”.
The Practitioner made application for the proceedings, in their entirety, to be dismissed pursuant to s.47 of the SAT Act 2004 (WA) as an abuse of process. The Tribunal declined to dismiss the proceedings in their entirety but did dismiss the False Representation Claim and the Inadequate Training Claim as being an abuse of process. The MBA appealed the decision.
The Tribunal had held that the term ‘abuse of process’ within the meaning of s.47(1)(c) is used in the sense in which that term is understood in a superior civil court of record. However, the Court of Appeal held that this was not a complete or accurate statement of the position as, in its application to a tribunal in the position of the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal is essentially protective of the public in character.
The Court of Appeal held that in a case such as the present, the considerations which would ordinarily be taken into account and which would be required to be weighed and balanced would include (without being exhaustive):
- whether there has been any unreasonable or undue delay in the prosecution of the proceedings;
- whether and to what extent there has been prejudice to the party alleging abuse and the character of any prejudice resulting from the undue delay;
- whether there are any circumstances which inform the principles of double jeopardy; and
- the public interest in the prosecution of the proceedings in light of the scope and purpose of the relevant enabling Act (in this case the National Law).
The MBA argued that the Tribunal’s ultimate finding of abuse of process was not open on the findings of primary fact which had been made and on the inferences of fact which were open on the evidence.
The Court of Appeal accepted that the Practitioner had not established any prejudice resulting from any delay, and in any event there was no unreasonable delay by the MBA.
Further, the Court of Appeal found that as the False Representation Claim went to the question of the Practitioner’s fitness to practice, it could not be inferred that there was no public interest in allowing the claim to proceed to be determined on its merits. As the Inadequate Training Claim formed part of the False Representation Claim, it could also not be said that there was no public interest in pursuing that claim.
The Court of Appeal therefore allowed the Appeal and made a substitute Order dismissing the Practitioner’s application to dismiss the proceedings as an abuse of process.
To read the full decision in Medical Board of Australia v Woollard [2017] WASCA 64, click here.
