FEDERAL COURT OF AUSTRALIA

McEwan v Podiatry Board of Australia [2010] FCA 1076

THE COURT ORDERS THAT:

1.     The motions, notice of which was filed on 23 September 2010 be refused.

2.    Judgment be entered for the Respondent.

3.    The Applicant pay the Respondent’s costs of the proceeding including the motions, notice of which was filed on 23 September 2010.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Mr McEwan is a podiatrist. On 23 September 2010, he filed an application in this court for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), seeking the review of a decision of the Podiatrist Registration Board of Victoria, dated 24 May 2010, that a voluntary notification relating to him be referred to a professional standards panel hearing on 28 September 2010 and a review of the conduct of a podiatrist by the name of Elizabeth Dalton under which she denied him, so it is alleged, principles of natural justice and procedural fairness and “created trumped up charges” against Mr McEwan.

2    I note that Ms Dalton is not a Respondent to the proceeding.

3    The Respondent, the Podiatry Board of Australia, is the national board, established under the Health Practitioner Regulation National Law (Victoria) Act 2009 (“the HPRNL Act”), to regulate the podiatry profession. Evidence filed by Mr McEwan in support of his principal application is sparse. It appears that complaints were made about his professional standards to the Victorian Podiatrist Regulation Board in May 2010. While the complaint was being considered by that board, the Podiatry Board of Australia was established and given the jurisdiction over professional standards and other matters that had previously been conferred on the Victorian Podiatrist Registration Board.

4    This occurred on 1 July 2010 when the relevant parts of the HPRNL Act came into force. Under transitional arrangements, responsibility for the further consideration of the complaint passed to the Podiatry Board of Australia: see s 289. The old board had previously determined to refer the notification to a professional standards panel. That procedure is now regulated by s 182 of the HPRNL Act.

5    The panel has, it appears, notified Mr McEwan that it will convene to deal with the notification tomorrow.

6    Mr McEwan has filed a notice of motion seeking orders that the panel be restrained from conducting the proposed hearing until the court hears the principal application and restraining the Podiatry Board of Australia from suspending or cancelling his podiatrist practicing certificate until the court determines the principal application.

7    When the proceeding was called on for hearing this afternoon, counsel appearing for the Respondent submitted that the Court lacked jurisdiction to entertain the principal proceeding and any motions brought in that proceeding. Counsel sought the dismissal of the motions and an order which would have the effect of determining the proceeding.

8    The Court is not, as its State counterparts generally are, a Court of general jurisdiction. Pursuant to s 19 of the Federal Court of Australia Act 1976 (Cth), it has such original jurisdiction as is vested in it by laws made by the Parliament. By s 23, it has power in matters in which it has jurisdiction to make, amongst other things, interlocutory orders of the kind that are sought in the Applicant’s notice of motion. Mr McEwan contends in his application that the Court should grant relief under the ADJR Act.

9    That Act, in its operative provisions, which are ss 5 and 6, provides that the Court has jurisdiction to grant relief in certain circumstances in relation to decisions to which the Act applies or conduct is engaged in for the purpose of making decisions to which the Act applies. Section 3 defines the term “decision to which this Act applies” to mean:

“a decision of an administrative character made, proposed to be made, or required to be made”

inter alia –

“under an enactment”.

An enactment is, in terms, defined to mean “an Act” which, by operation of the Acts Interpretation Act 1901 (Cth), means an Act of the Commonwealth Parliament.

10    There is provision for certain state Acts also to constitute enactments. But the HPRNL Act is not one of them.

11    As a result I must conclude that the ADJR Act does not confer jurisdiction on this Court. No other provision has been pointed to that would confer jurisdiction on this Court to entertain the principal application nor in those circumstances is it possible for interlocutory orders to be made of the kind that are sought in Mr McEwan’s notices of motion.

12    The motions must therefore be refused.

13    The issue remains as to what should be done with the principal proceeding. It seems to me that it is appropriate for summary judgment to be given in the principal proceeding on the ground that it is bound to fail and the court can thereby be satisfied that the Applicant has no reasonable prospect of successfully prosecuting the proceeding. To require this issue to be further debated in the light of the view which I have formed on the jurisdictional point would simply add unnecessarily to the expenses incurred by the parties. Accordingly, it is in my view appropriate that an order should be made under s 31A of the Federal Court of Australia Act 1976 that judgment be entered for the respondent.

14    The orders of the court will be:

1.    The motions, notice of which was filed on 23 September 2010 be refused.

2.    Judgment be entered for the Respondent.

3.    The Applicant pay the Respondent’s costs of the proceeding including the motions, notice of which was filed on 23 September 2010.

Associate:

Dated:    27 September 2010