FEDERAL COURT OF AUSTRALIA

Pardo v Australian Health Practitioner Regulation Authority [2013] FCA 91

THE COURT ORDERS THAT:

1.    Judgment is entered for Australian Health Practitioner Regulation Authority and the Psychology Board of Australia against Dr Nadira Pardo in relation to the whole of the proceedings pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    At the time of the application to the Court, the Applicant had been advised by the Psychology Board of Australia (“the Board”) of a proposed decision to refuse her application for registration as a psychologist.

2    Subject to a threshold question of jurisdiction of the Court, it can be accepted that the Applicant has an argument that she would be entitled to a review of the circumstances that led to that decision. However, the Respondents, the Australian Health Practitioner Regulation Agency (“AHPRA”) and the Board, who were jointly represented by Ms Taglieri of counsel, contest the jurisdiction of this Court.

3    The Applicant, Dr Nadira Pardo, has filed annexures of her qualifications with her written submissions. The Respondent made the concession that the Court could have regard to those documents for the purposes of this preliminary determination as to the Court’s jurisdiction.

4    It is clear from those documents that the Applicant, who is also known by the name Dr Paula Marcela Tidmore, holds a Bachelor of Science degree awarded in 1985, a Master of Science and Psychology degree in 1989 and a Doctorate of Philosophy awarded to her in 1993, all from the Memphis State University of the United States of America.

5    There appears to be no dispute about the status of the Applicant’s academic qualifications from the Memphis State University. They have been assessed and recognised by the Australian Education International - National Office of Overseas Skills Recognition (AEI-NOOSR) as equivalent to Australian degrees of the same status. That is the three degrees have been accepted as comparable to an equivalent educational level in Australia.

6    In each instance there is a footnote of that assessment advice to the following effect:

This assessment is a guide to the comparability of the educational level of the overseas qualifications in Australian terms. Acceptability for employment, membership of a professional body, occupational registration or further study purposes is a matter for the respective authorities in Australia to determine. This assessment advice may assist in this regard.

7    The Applicant has a certificate (dated 15 September 2006) annexed to her written submissions which I will take into account on the same basis as the qualification annexures. The certificate is from the Australian Psychology Society and certifies that the Applicant’s qualifications are comparable to a six-year Australian Psychology Accreditation Council (APAC) accredited sequence of psychology study completed in Australia. The certificate includes an important footnote:

(1)     This is not a certificate of registration as a psychologist in Australia.

(2)     It is very important to note that this assessment does not entitle you to automatic registration as a psychologist.

8    After her arrival in Australia, the Applicant applied for registration in Australia as a psychologist. She referred the Court to the criteria published by the Board which generally govern those matters. The document that she has put before the Court is accepted for the purposes of this preliminary question of jurisdiction. Under the heading “Summary” it says:

The Board has determined that the qualifications that lead to general registration are:

(a)     an accredited Masters degree; or

(b)     a five year accredited sequence of study followed by a one year Board approved internship (5+1); or

(c)     a four year accredited sequence of study followed by a two year Board approved internship (4+2); or

(d)     a qualification that in the Board’s opinion, is substantially equivalent to either (a), (b) or (c).

(e)     In addition to the completion of an approved qualification, the Board may require the passing of an examination prior to accepting an application for general registration.

9    The circumstances of her application in Western Australia are not absolutely clear from the materials that are before the Court, but it is plain that the Applicant’s application for general registration was not granted without a requirement of some further supervised training. That is plain from the Applicant’s affidavit and by the further documents about her supervised practice exhibited to the Applicant’s written submissions. These include a report to the registrar of the Psychologists Board of Western Australia (“the WA Board”) signed by a person whose name appears to be C J Armstrong, who I accept to have been her supervisor, indicating the Applicant had demonstrated appropriate proficiency in knowledge of the discipline, psychological assessment, intervention strategies, evidence-based practice, communication, ethical legal and professional matters, demonstrated commitment to the ethics of the profession and was fully competent to undertake independent practice and psychology. There were also a number of specific statements indicating that particular strategies had been undertaken by the Applicant in an appropriate and satisfactory manner.

10    The Applicant ultimately did not receive the registration she sought in Western Australia. The Applicant’s affidavit indicates that the employment in Western Australia ceased as a consequence of her not obtaining the requisite registration and that she then moved to Tasmania to take up a position in that State. The Applicant’s employment was conditional on her obtaining registration in Tasmania.

11    It is convenient to set out briefly the history of this proceeding. The Applicant’s originating summons for judicial review was filed on 27 November 2012. In it, the Applicant stated her details of claim as

The Applicant is aggrieved by the failure to grant General Registration as a Psychologist because:

1.    Loss of employment with DET in WA, relocation expenses to find new employment

2.    Loss of employment with DoE in TAS, reduction of salary as a direct result of not being Registered, and change from full to part-time after General Registration upon completion of 4+2 program denied.

12    The grounds of the application assert that APAC’s recognition of her qualifications should have automatically qualified her for general registration under the AHPRA guidelines. Furthermore, the Applicant contended that her two years of full-time employment at an inpatient psychiatric hospital and two years full-time employment with a private psychologist training in psychometrics, hypnosis and other interventions had wrongly failed to be credited because she had been assessed as having “not enough training in abnormal and psychometric assessments” although she had more experience than most registered psychologists in Australia.

13    The Applicant also raised claims of defamation by Board members and employees of AHPRA in respect of statements that her graduate qualifications were at the level of an Australian undergraduate and that her “poor time management skills” had led to a missed deadline for a report, facts which her grounds for application contested.

14    The Applicant sought orders that she be granted general registration as a psychologist, from the date of the application submitted in Western Australia under AHPRA and an order that she be awarded compensation for defamation, damages and loss of past and future wages of $750,000 plus court costs and fees for legal representation. The Applicant sought a written apology from AHPRA and the Board “for their oversights”.

15    The Applicant’s originating application was supported by an affidavit sworn 22 November 2012. It is not necessary to set out the full terms of that affidavit for these purposes. It is sufficient to note that in paragraphs 8, 9 and 10, the Applicant contended that the conclusions reached by the WA Board ie that the supervisor and the Applicant had been negligent and had shown disrespect for the WA Board and had demonstrated poor time management skills, were in error. Her affidavit stated that as a consequence of the WA Board’s rejection of her application for general registration, she had lost her job in Western Australia, and then had to seek work and to relocate to Tasmania, costing her family over $25,000 in relocation expenses, and causing her a high amount of stress and health problems, which had resulted in several hospitalisations of her children.

16    The Applicant also deposed to the fact that it was a requirement of her Tasmanian employer that she be fully registered because that employer could not provide supervision for a provisionally registered psychologist.

17    The Applicant’s originating application indicated that it had been intended to be served on

(a)    the AHPRA national office in Victoria,

(b)    the Western Australia and Tasmania state offices,

(c)    all employees of the Psychology Board of Australia,

(d)    the Regional Board of Western Australia, Northern Territory and South Australia, and

(e)    all board members involved in decisions and discussions about the Applicant, including but not limited to certain named individuals.

18    On 6 December 2012, the first and second named Respondents gave notice of their address for service and on 14 December 2012 the matter came before me for an initial directions hearing. The Applicant appeared in person and on that occasion the Respondents were represented by Mr Shears. There is no evidence before the Court that the originating application and the supporting affidavit was filed and served on any other persons other than the two Respondents who appeared by counsel.

19    In the course of that directions hearing, the Court drew the parties’ attention to a potential threshold issue of jurisdiction. In respect of that point, the Respondents submitted that the application took the form of a proceeding brought under the Administrative Decisions (Judicial Review) Act 1977, (“the ADJR Act”). However, they submitted no Commonwealth law was involved, there was no decision by a Commonwealth officer, and the relevant law was a national law that had been enacted in each State in substantially mirror terms. The Respondents submitted that as a matter of law the questions that were being agitated in the Federal Court were governed by State law. They submitted that AHPRA, although a national body, was acting exclusively under laws enacted by State Parliaments and therefore the Federal Court lacked jurisdiction. The Applicant contended otherwise and referred to Broadbent v Medical Board of Queensland [2011] FCA 980 as authority for that proposition.

20    Having heard from both parties, the Court ordered that each file and serve brief written submissions on the jurisdiction of the Federal Court. In consequence of that order, the Court received written submissions from both the Applicant and the first and second Respondents.

21    The Respondents’ written submissions canvassed two issues. First, they submitted, the decision that was sought to be challenged had not been effectively made and was still pending. The terms of the submission were:

AHPRA is obliged by section 84 of the National Law to advise persons of their appeal rights once a decision in relation to an application for registration is made. This has not occurred in the present case as no final decision has yet been made; rather the Applicant has been advised of the Board’s decision to propose to refuse her application. (emphasis original)

22    Whatever might have been the merits or otherwise of that submission (and in passing I note that the terms of the ADJR Act themselves appear to permit an application to be brought in respect of a proposed decision) it is now not contended by the Respondents that any bar to these proceedings exists in relation to that point. A decision has since been made which has refused the Applicant’s registration.

23    The second point addressed in the Respondents’ written submissions was that the originating application had been filed in a court without jurisdiction to determine the grievance. The Respondents submitted that health practitioner regulation in Australia was the province of uniform laws adopted by the various states and territories, rather than founded on Commonwealth laws. The Respondents drew attention to the fact that the Tasmanian Parliament had adopted a law enacted previously in Queensland, with some minor local modifications. The Queensland law was the Health Practitioner Regulation National Law Act 2009. That law was adopted by the Tasmanian Parliament by s 4 of the Health Practitioners Regulation National Law (Tasmania) Act 2010.

24    The Respondents submitted that although such laws knitted together to form a national scheme, each of the relevant State laws, which comprise that scheme, remained State laws and did not take effect as laws of the Commonwealth. The Respondents pointed out that where the ADJR Act refers to “decisions to which this Act applies” the expression must be read together with the definition of “an enactment”, in the same subsection. That makes it clear that only decisions made under Commonwealth laws, rather than State laws, are reviewable under that Act.

25    The Respondents submitted that, because the Applicant had not identified any decision made pursuant to a Commonwealth enactment, the ADJR Act had no application and the Federal Court of Australia was not the appropriate avenue for the Applicant to pursue her grievance. The Respondents submitted that although the Applicant had referred to the decision of Broadbent as authority for the proposition that the Federal Court had jurisdiction to deal with similar decisions involving health practitioner regulation, a fair reading of that decision was that it stood as authority for the exact opposite. The Federal Court in that instance had concluded that it had no jurisdiction to determine such matters.

26    In response to the Respondents’ submissions, the Applicant sought to distinguish the decision of Greenwood J in Broadbent. The Applicant’s submission was that the matter now before the Court involved several States and Territories, not just one. Further, the Applicant contended that Greenwood J’s reasons (at [174] to [177]) were to the effect that had a “decision” been identified by the Applicant, the ADJR Act would have applied and a finding that the Federal Court had jurisdiction would have been made.

27    The Applicant’s written submissions drew attention to the Lisbon Recognition Convention of 2012, Pt 3 Div 1 of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) and the appropriateness of the Federal Court as jurisdiction because several states, not just one, were involved. The Applicant highlighted her personal plight supporting two children and appealed for an urgent order under habeas corpus on the grounds of natural justice under the ADJR Act to allow her to continue working as a psychologist and become re-employed.

28    The commencing point for this Court’s consideration of the issues raised is that it will act only with great caution to hold that a matter cannot be further argued because there are no reasonable prospects of its success for want of jurisdiction. Nonetheless, reluctantly, that conclusion seems inevitable in this instance. In reaching that conclusion, the Court will be acting consistently with Greenwood J’s decision in Broadbent.

29    The application is set out as an application for judicial review under the ADJR Act. For the reasons that Greenwood J referred to at [174] to [180] the Applicant has failed to identify either an “enactment” under which a relevant decision was made or omitted to be made or a decision to which the ADJR Act applies in respect of the conduct outlined in the application.

30    The only circumstances in which jurisdiction is conferred under the ADJR Act in respect of decisions which would otherwise be State decisions, are provided for in sch 3 of the Act. None of the various Health Practitioners Regulation National Law enactments of the States have been included as falling within the meaning of the term “enactment” by Sch 3.

31    I have taken account of the various matters that the Applicant has put forward as reasons for distinguishing Broadbent. The Applicant first submitted “Australia signed the Lisbon Recognition Convention in 2002. As an obligation under this convention AEI NOOSR became the official National Information Centre for Australia”. However, the Applicant made no complaint against the AEI-NOOSR. In fact the Applicant provided the Court with copies of determinations made by that body which had accepted all of her qualifications as equivalent to those of an Australian standard.

32    Secondly, the Applicant has raised the conduct of not only AHPRA and the Board acting as the Tasmanian authority for registration but also for Western Australia and Victoria. However, I see no reason to differ from the conclusions of Greenwood J in respect of the way in which the national law applies with respect to each of those circumstances. The various State Parliaments may have each conferred upon the same agents the power to exercise in registering psychologists in the State jurisdictions but each such exercise of power involves the application of State law in respect of State issues. It requires individual decision-making processes for each application. To some degree, the reality of that fact appears to be manifested in the Applicant’s own submissions, in which she advised the Court that South Australia had required her to do one year further study or supervised training, while Western Australia had required her to complete two years, and now Tasmania will require her to undertake a further two years on top of the two completed in Western Australia.

33    The Applicant drew the Court’s attention to the decision National Auto Glass Supplies (Australia)Pty Ltd v Nielsen & Moller Autoglass (NSW) Pty Ltd (No 8) [2007] FCA 1625 in which the Court awarded damages in respect of matters which had arisen across State boundaries. In that case the jurisdiction the Court was exercising was an accrued jurisdiction where the original claim before the Court was one which plainly was within jurisdiction: Federal Court Act.

34    As was noted in Carlton & United Breweries Limited v Castlemaine Tooheys Limited (1986) 161 CLR 543 at 555, it is only where there is a grant of Federal jurisdiction that the accrued jurisdiction can be exercised. As per Greenwood J, at [195] in Broadbent, “[s]ince the application does not invoke a grant of federal jurisdiction there can be no accrued jurisdiction”.

35    Because of the reluctance of a court to strike out proceedings I have considered other possible grounds for a claim of jurisdiction to arise under s 39B of the Judiciary Act 1903 (Cth). For the same reasons as Greenwood J in Broadbent, I cannot see a reason for its applicability. The functions exercised that are complained of were not those of an officer of the Commonwealth.

36    No claim is made under the Mutual Recognition Act 1992 (Cth) and on its face, there would appear to be no breach of the provisions of that Act in respect of exchange of information as between the various States insofar as it affects the decision-making in this matter.

37    Having reached this point, the question arises as to whether the Court should permit these proceedings to remain on foot. The Court has power, under s 31A of the Federal Court Act, to give summary judgment for one party against another in relation to the whole or any part of the proceeding if the first party is defending the proceeding, or that part of the proceeding, and the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. In considering whether or not such a power should be exercised, Greenwood J referred to the appropriate considerations that are authoritative upon this Court at [197] and [198]. There is no need to set those out further. I agree entirely with what his Honour stated in that regard.

38    In this instance, as the matter has been stated in the originating application for judicial review and on the materials that the Applicant has since placed before the Court, I conclude that there is no reasonable prospect that the Applicant can succeed in the proceedings. Judgment therefore will be entered for the Respondents against the Applicant pursuant to s 31A of the Federal Court Act.

39    The outcome does not mean that the Applicant will be without appeal rights. Those rights have been advised to her by the Respondents. To the extent that those review rights themselves become the subject of dissatisfaction by the Applicant, there may be further judicial review processes available to her under State law.

Associate:

Dated:    5 March 2013