FEDERAL COURT OF AUSTRALIA

Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be granted.

2.    Leave be granted to the applicant to bring a proceeding against the respondent pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth).

3.    The matter be referred to mediation before a Registrar of this Court on a date to be fixed.

4.    Costs be reserved.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to bring a proceeding against the respondent pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) be dismissed.

2.    The parties are to confer on the issue of costs and within 14 days hereof they are to file agreed orders or, if no agreement is reached, submissions of no more than two pages in length.

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

REASONS FOR JUDGMENT

STEWARD J:

1    Doctor Pathmanathan (the “Doctor”) is a female medical specialist whose family hails from Sri Lanka. In late 2017, she made complaints to the Australian Human Rights Commission (the “Commission”) against St John of God Healthcare Inc (“SJOG”) under the Age Discrimination Act 2004 (Cth) (the “Age Discrimination Act”), the Racial Discrimination Act 1975 (Cth) (the “Racial Discrimination Act”) and the Sex Discrimination Act 1984 (Cth) (the “Sex Discrimination Act”). SJOG operates a hospital at which the Doctor once worked. On 28 February 2018, a delegate of the President of the Commission terminated those complaints pursuant to ss 46PF(1)(b) and 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (the “AHRC Act”). The Doctor needs leave to commence an application in this Court alleging unlawful discrimination against SJOG.

2    In late 2017, the Doctor also made complaints to the Commission against the Australian Health Practitioner Regulation Agency (the “Agency”) under the Disability Discrimination Act 1992 (Cth) (the “Disability Act”), the Racial Discrimination Act, the Age Discrimination Act and the Sex Discrimination Act. The Agency supports 15 National Boards responsible for regulating the various health professions of Australia in accordance with the Health Practitioner Regulation National Law (as in force in each state and territory). On 27 February 2018, a delegate of the President of the Commission terminated those complaints pursuant to ss 46PF(1)(b) and 46PH(1)(b) of the AHRC Act. The Doctor again needs leave to commence an application in this Court alleging unlawful discrimination against the Agency.

3    In both proceedings, the Doctor was late in making her applications to this Court. She submits that the Court should exercise its power to extend the time for making each application.

Relevant Legislation

4    Section 46PF of the AHRC Act provides for the President of the Commission to inquire into a complaint or terminate a complaint without inquiry. It relevantly provides:

Inquiry by President

(1)    Subject to subsections (1A) and (5), if a complaint is referred to the President under section 46PD, the President must:

(a)    consider whether to inquire into the complaint, having regard to the matters referred to in section 46PH; and

(b)    if the President is of the opinion that the complaint should be terminated—terminate the complaint without inquiry; and

(c)    unless the President terminates the complaint under paragraph (b) or section 46PH—inquire into the complaint and attempt to conciliate the complaint.

(1A)    For the purposes of paragraph (1)(a), the President may inform himself or herself of such facts and circumstances as are necessary to form the opinion referred to in paragraph (1)(b).

(1B)    If the President terminates the complaint under paragraph (1)(b), the President must comply with the notification requirements of subsections 46PH(2), (2A) and (3).

5    The phrase “unlawful discrimination” is a defined term. Section 3 of the AHRC Act relevantly provides:

unlawful discrimination means any acts, omissions or practices that are unlawful under:

(aa)    Part 4 of the Age Discrimination Act 2004; or

(a)    Part 2 of the Disability Discrimination Act 1992; or

(b)    Part II or IIA of the Racial Discrimination Act 1975; or

(c)    Part II of the Sex Discrimination Act 1984;

…

6    Section 46PH sets out the grounds for terminating a complaint. It relevantly provides in its present form:

Termination of complaint

Discretionary termination of complaint

(1)    The President may terminate a complaint on any of the following grounds:

(a)    the President is satisfied that the alleged acts, omissions or practices are not unlawful discrimination;

(b)    the complaint was lodged more than 6 months after the alleged acts, omissions or practices took place;

(c)    the President is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted;

(d)     in a case where some other remedy has been sought in relation to the subject matter of the complaint—the President is satisfied that the subject matter of the complaint has been adequately dealt with;

(e)    the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person;

(f)    in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority—the President is satisfied that the subject matter of the complaint has been adequately dealt with;

(g)    the President is satisfied that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority;

(h)    the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit Court.

7    Section 46PO of the AHRC Act provides that an application alleging unlawful discrimination can be made to this Court. It must be made within 60 days of the President’s decision, although there is a power whereby this Court may extend time. In some cases, as here, leave is also required to commence such an application. Section 46PO relevantly provides:

Application to court if complaint is terminated

  (1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.

(2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

  (3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

 (3A)    The application must not be made unless:

(a)    the court concerned grants leave to make the application; or

(b)    the complaint was terminated under paragraph 46PH(1)(h); or

(c)    the complaint was terminated under paragraph 46PH(1B)(b).

(4)    If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a)    an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)    an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

   (c)    an order requiring a respondent to employ or re-employ an applicant;

(d)    an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e)    an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)    an order declaring that it would be inappropriate for any further action to be taken in the matter.

Note 1:    The Federal Court, or a judge of that court, may award costs in proceedings under this section—see section 43 of the Federal Court of Australia Act 1976.

…

(6)    The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.

(7)    The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).

(8)    The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.

Background

8    The Doctor’s complaints arose from an event which took place towards the end of 2014 at a hospital operated by SJOG (the “Event”) (certain other allegations were made against the Doctor which I need not consider for the purposes of the application before me). It is unnecessary and undesirable to describe that Event in these reasons. The parties know what it is. Suffice to say, the Doctor and SJOG are in dispute as to the detail of what occurred. If this matter proceeds to trial, I will need to make findings of fact about the Event which will form part of my reasons for judgment. The Event led to the Doctor’s temporary suspension and the imposition of conditions on her registration as a doctor for a period of time. Again, the parties, which for this purpose include the Agency, are in dispute concerning the legality of those actions.

9    Section 46PH(1)(b) presently gives the President of the Commission the power to terminate a complaint if it is lodged more than six months after the acts comprising the alleged unlawful discrimination. Where the alleged acts have taken place before 13 April 2017, the applicable timeframe is 12 months rather than 6 months (s 46PH was amended by Sch 2 to the Human Rights Legislation Amendment Act 2017 (Cth)). That longer timeframe applied here. Each complaint was made well after the expiration of the 12 month time period.

10    In the case of SJOG, the delegate of the President was concerned about the substantial delay in bringing the Doctor’s claims. It decided that there was “insufficient information” before the Commission to support a claim that SJOG suspended and then reported the Doctor to the Agency because of her “age, race and/or sex”. A similar conclusion was reached in relation to the complaints made about the Agency.

11    The Doctor now seeks leave to commence proceedings against each of SJOG and the Agency. She also seeks an extension of time within which to seek leave as she did not file her applications within the prescribed 60 day period.

12    For the reasons which follow I will order that leave be granted to commence a proceeding against SJOG but not against the Agency.

Test for Leave

13    There was no dispute about the content of the test for leave for the purposes of s 46PO(3A)(a) of the AHRC Act. In James v WorkPower Inc [2018] FCA 2083, Mortimer J said at [31]-[32] as follows:

Like other judicial discretions empowering leave to be granted to a party to take a step in a proceeding (eg to serve out of the jurisdiction or to issue a subpoena: see rr 10.43(2) and 24.01 of the Federal Court Rules 2011 (Cth)) or to issue a proceeding (eg in relation to vexatious litigants or where leave is required to appeal: see ss 37AR and 24(1A) of the Federal Court of Australia Act 1976 (Cth), the interests of the administration of justice will be a governing consideration in the way the discretion falls to be exercised. However, how the assessment of what is in the interests of the administration of justice is to be undertaken will vary depending on the nature of the power in issue, and the circumstances which give rise to a request for its exercise. Here, as the respondent submits, the imposition of a leave requirement in certain circumstances by the amendments to s 46PO in 2017 had a clear purpose. Any consideration of where the interests of the administration of justice lie must recognise and give weight to that purpose.

The purpose of the leave discretion, taking into account its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by s 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission.

14    Mortimer J was of the view that s 46PO(3A)(a) acts as a “filter” to exclude, amongst other things, fanciful claims. However, for that purpose, it did not set a particularly high bar. Her Honour said at [37]:

I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

15    Mortimer J identified the following additional considerations which may in a particular case be of relevance (at [38]):

(1)    the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;

(2)    the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);

(3)    how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;

(4)    whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;

(5)    whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;

(6)    the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;

(7)    whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and

(8)    other factors that are often considered in leave applications – such as prejudice to a party.

16    Mortimer J finally observed that the role of a Court in a leave application is not to embark on a detailed consideration of the merits of an applicant’s underlying arguments about unlawful discrimination. Rather, the role of the Court is to consider – perhaps in an impressionistic way – whether the contentions of the applicant are sufficiently arguable such that leave should be granted.

Test for Granting an Extension of Time

17    In Reurich v Sureway Employment and Training Pty Ltd [2018] FCA 680, Markovic J usefully summarised the principles for determining whether to grant an extension of time under s 46PO(2) of the AHRC Act. At [18] her Honour said:

In considering whether to grant an extension of time under s 46PO(2) of the AHRC Act the three principal matters for the Court to take into account are the explanation for the delay; any prejudice to the respondents, including any prejudice to them in defending the proceeding occasioned by the delay; and whether the applicant has an arguable case: see Vergara v Living and Leisure Australia Ltd [2013] FCA 775 … at [3] (Davies J).

I respectfully agree with and adopt Markovic J’s statement. Again, there was no dispute about the applicable principles.

The SJOG Proceeding

Application for leave

18    Before me the Doctor was not legally represented. She now resides overseas. Without descending into detail, she has been very greatly affected, in both an emotional and financial sense, by the Event and its consequences. For the reasons which follow, I will grant the Doctor leave to commence a proceeding against SJOG and an extension of time to do this. However, I will also direct that the parties proceed first to mediation before taking any further steps. The Court urges both sides to consider a mediated outcome in the particular circumstances of this case.

19    The nub of the reason for granting leave is this: SJOG contends, in effect, that the Doctor exclusively participated in the Event, whereas the Doctor alleges that other medical staff and doctors at the SJOG hospital were part of it. The Doctor has filed numerous affidavits in which she alleges this. These are matters of fact which will need to be determined. For the moment, what can be said is that it is not disputed that the Event took place during a surgical procedure involving the Doctor and other medical staff in the same theatre. The Doctor had, during that surgery, a specific medical responsibility over a patient when the Event took place. There is no evidence presently before me that the other medical staff sought to stop or prevent the Event from taking place in any way. Based on the Doctor’s presently uncontradicted evidence, I infer that the other medical staff were at least witnesses to it (whether that inference can be sustained will turn on the evidence to be led before me). This led to the question asked by me at the hearing of the application for leave: why was the Doctor the only medical staff member suspended and disciplined? Why was she singled out? The answer to that question might, in my view, either exclude or raise the possibility that the Doctor was differentially treated because of the Doctor’s ethnicity, gender or age. I gave SJOG leave to file affidavit evidence concerning that issue.

20    SJOG subsequently filed an affidavit sworn by the Chief Executive Officer (the “CEO”) of the hospital at the time of the Event. After deposing to breach by the Doctor of certain By Laws applicable to SJOG’s health professionals, and after describing his understanding of the Event, that CEO said (amongst other things):

I can also say that if, when I was informed of the [Event] or at any time during its investigation, there was any inference that other people in the theatre were involved, or in any way acquiesced, or “turned a blind eye”, I would have ensured that those allegations were investigated and that I took appropriate disciplinary action taken [sic]. That was not the case.

21    For the moment, I find this explanation to be unsatisfactory. The other medical staff were in the same theatre as the Doctor when the Event took place. As already mentioned, in the absence of contradictory evidence, I infer that they witnessed it. Their failure to take steps to stop the Event taking place could well constitute, in my view, an act of acquiescence or the turning “of a blind eye”, which was known, or should have been known, to SJOG at the time. It follows, on the material before me, and applying a “filter” not intended to set a “high bar”, I find that I cannot be confident that the Doctor has not been the subject of discrimination on the grounds of her ethnicity, gender or age, and that this explains why she was the only medical staff member disciplined. For these reasons, and given the grave importance of this matter to the Doctor, leave should be granted for the Doctor to proceed with her case against SJOG.

22    The Doctor has otherwise made a very great number of accusations in support of her claims that she has been unlawfully discriminated against. The overwhelming bulk of the affidavit material and exhibits filed by her has, I find, been irrelevant, misconceived, inadmissible and/or scandalous. This has included emotive assertions and the opinions of other medical practitioners about what happened. None of that material has been of any assistance to me. This is not meant as a criticism of the Doctor. She is not legally qualified. Moreover, she has plainly been wounded by the Event and its consequences. What the Court needs to know is:

(a)    what happened at the Event;

(b)    what followed from the Event; and

(c)    the reasons why action was taken against the Doctor. This would include knowing why action was not taken against other medical staff who attended in theatre during the Event.

23    I have not otherwise seen in the material before me any further realistic basis for concluding that SJOG unlawfully discriminated against the Doctor.

24    In my view, the first step in this proceeding will be a Court ordered meditation. The parties must pursue all reasonable endeavours that will avoid the ongoing cost and inconvenience of litigation in this Court.

Application for an extension of time

25    I will also order an extension of time pursuant to s 46PO. My reasons are as follows:

(a)    The delay was not extensive. The Doctor swore an affidavit in which she deposed that she had originally made an application within the required 60 day period on 27 April 2018. However, she received an email from the Court stating that she had not lodged her application correctly. She was invited to contact the Court. She did not do so. Instead, a correctly lodged application was filed 67 days later. In my view, this is evidence of an active attempt by a self-represented litigant to pursue their claim in this Court.

(b)    The reasons given for the 67 day delay included the Doctor moving from Sydney to Melbourne, fracturing her arm in an accident, the commencement of a Masters in Health and Medical Law and unsuccessful attempts at seeking legal advice. These are not overwhelming excuses. But in the context of this case, they are perhaps just sufficient. In any event, in my view, the delay was short.

(c)    There is prejudice to SJOG arising from the fact that the Event took place in 2014. It may encounter difficulties in gathering evidence. However, that is not the relevant prejudice for the purposes of s 46PO(2). Rather, the question must be what prejudice arises from the delay of 67 days. In my view none has been identified.

(d)    The discrepancy in treatment between the Doctor and the other medical staff associated with the Event sufficiently grounds an arguable case concerning the taking of action against the Doctor and no one else. My present impression is that the case is not compelling, and only just arguable. However, that factor is of less importance in a case where the applicant filed a document on time, albeit incorrectly, and then correctly filed an application a relatively short time later. In particular, because of the vital importance of the case to the Doctor, I do not think she should be shut out from pursuing her claims because of a delay of 67 days.

I will order an extension of time.

The Agency Proceeding

Application for leave

26    I am not satisfied that the Doctor should have leave to commence a proceeding against the Agency. In reaching that conclusion, it is unnecessary for me to form any concluded view concerning the submission that the Agency is the wrong party to the proceeding and that, for example, the correct party should be the Medical Board of Australia (the “Board”).

27    In my view, the position of the Agency is different to that of SJOG. That is because no issue arises in relation to the failure, using that word in its neutral sense, to investigate or take other disciplinary action against the other medical staff associated with the Event. That was a failure on the part of SJOG and not on the part of the Agency. In that respect, the Agency relevantly acts on notifications made to it by health practitioners and hospitals and the like. I have otherwise seen no evidence that the Agency took steps in relation to the Doctor because of her age, gender, or ethnicity or because of any disability she might have had (none were really suggested). She was not discriminated against for those reasons.

28    The Agency relied upon two affidavits affirmed by Mr Jeremy Smith who is employed by it as a “Senior Legal Advisor”. The contents of those affidavits were not effectively challenged by the Doctor (save by the making of conclusionary assertions). He was not cross-examined. The first affidavit of Mr Smith addresses the following matters:

(a)    That pursuant to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (the “National Law (WA)”), the Agency has authority to receive notifications of complaints against health practitioners and the Board has the power to:

(i)    take immediate action (as defined by the National Law (WA));

(ii)    require a health practitioner to undergo a health assessment or a performance assessment;

(iii)    investigate a health practitioner;

(iv)    take relevant action (as defined by the National Law (WA));

(v)    establish a health panel or performance and professional standards panel to hear and determine a matter; and

(vi)    refer a health practitioner to a responsible tribunal to hear and determine a matter.

Relevantly, the Board may delegate any of its functions, other than its power of delegation, to the Western Australia State Board of the Board.

(b)    At the end of 2014, the Agency received written notification as required by the National Law (WA) that the Doctor’s accreditation had been suspended by SJOG. The notification was sent by the Doctor’s lawyers. A further notification was sent by one of SJOG’s doctors.

(c)    The Western Australian Notifications Committee of the Board decided to undertake an investigation of the Event. In my view, that decision was taken because the nature of the Event demanded it, involving as it did potential misconduct. There is no evidence before me that it was made because of the Doctor’s age, gender, or ethnicity or because of any disability she might have had.

(d)    Further information was sent by the Doctor’s lawyers to the Agency in December 2014.

(e)    On 15 December 2014, the Western Australian Immediate Action Committee of the Board (the “Immediate Action Committee”) proposed to take “immediate action” to impose a condition on the Doctor’s registration that she not practise medicine until deemed fit to return to medical practice following a health assessment, which it required her to have; it invited the Doctor to make submissions about this proposed immediate action. In my view, this decision was made because of concerns held by the Immediate Action Committee about the Doctor’s ability to practise her occupation safely. Before me, the Doctor strongly disputed that conclusion. In her view, she was able to perform her duties safely. She also strongly criticised the remedy imposed by the Immediate Action Committee. It may be the case that her complaints are soundly based. That committee may have been mistaken about the Doctor’s wellbeing. It may have overreacted. But, in my view, there is no evidence that it so acted because of the Doctor’s age, gender, or ethnicity or because of any disability she might have had.

(f)    The Doctor’s lawyers made a submission to the Agency. It set out details concerning the Doctor’s health and about the Event. The submission stated:

The Practitioner very much regrets the decision to [participate in the Event] during the procedure.

She frankly admits that to do so was a lapse of judgment.

The Doctor disputes that she ever said this. She contends that her lawyers had conspired against her and were secretly acting in the best interests of SJOG. No compelling or cogent evidence was adduced to support those propositions. But even if true, the fact is that the Agency would not have known about it. It was entitled to assume that statements made by the Doctor’s lawyers, such as those set out above, were made with the authority and instructions of the Doctor.

(g)    On 19 December 2014, the proposed immediate action was then taken against the Doctor.

(h)    The Doctor’s health was assessed in January 2015 and a report given to the Agency on behalf of the Board. A copy was given to the Doctor’s new lawyers. It is unnecessary and inappropriate to set out the content of that report in any detail other than to record that it found that the Doctor was not suffering from any relevant health impairment. It described her participation in the Event as a “serious lapse of judgment, although momentary”. It recommended, amongst other things, that the Doctor undertake counselling and that she should resume work under a mentor. Suffice to say, I am more than satisfied that its making and its contents were not the product of unlawful discriminatory conduct.

(i)    In February 2015, the Doctor’s new lawyers sent the Agency a proposed voluntary undertaking. The purpose of the undertaking was to have the Doctor’s suspension removed. The letter records that the Doctor had “learnt from the lapse in judgment” and that she accepted “the importance of obtaining objective treatment and care”. Before me, the Doctor alleged that her new lawyers had not acted in her best interests and did not have her instructions in offering the undertaking specified. Again, no evidence was adduced to support those allegations, other than the making of conclusionary assertions by the Doctor. Critically, however, even if true, the Agency again would not have known that her new lawyers did not speak with her authority.

(j)    In response, the Agency decided to continue the investigation into the Doctor, but also decided to remove the condition imposed on her registration described above. This is because the health assessment effectively demonstrated that the Doctor was not suffering from any relevant health impairment.

(k)    In March 2015, following an invitation from the Agency, the Doctor’s new lawyers made further detailed submissions on her behalf. The Agency sought further information from the Doctor in April 2015 and her lawyers responded to that request.

(l)    In June 2015, the Doctor’s new lawyers made another proposal to the Agency “in full and final resolution of the subject matter of this investigation” and following the “full and frank admissions” made by the Doctor about the Event. Once again, if this letter had been sent without the authority of the Doctor, there is no evidence to suggest that this was known by the Agency.

(m)    Following an exchange of further correspondence, in August 2015, the Agency informed the Doctor of the Board’s decision to caution the Doctor and to impose certain further conditions on her registration. It is unnecessary to set out those conditions. The Board explained its reasons for its decision in the following terms:

  •    You have admitted that [participating in the Event] while attending to a patient in theatre was inappropriate.

•    You have admitted that you failed to adequately manage your illness and personal crisis circumstances and the impact this had on your capacity to practise.

•    You acknowledge that the above amount to a serious lapse of judgement.

•    It is appropriate for you to be cautioned and for conditions to be imposed on your registration in order to deter similar conduct in the future, to ensure that you uphold the professional standards set by the Medical Board of Australia, and to ensure that the public is safe and confidence in the profession is maintained.

•    The imposition of conditions related to supervision and to counselling will support you to increase your awareness of the importance of [self-care] and the relevant professional standards and protect the public.

In my view, there is no evidence to support the contention that the Board cautioned and then imposed conditions on the Doctor’s registration because of her age, gender, or ethnicity or because of any disability she might have had. There is no reason to doubt the authenticity of the reasons given by the Board as set out above. The Doctor strongly criticised what the Board did. Its decision has gravely affected her career. Many of those criticisms may well be justified. It may be that the Board did not appreciate what in fact had happened during the Event. But these considerations do not show that the Board engaged in unlawful discrimination. They are attacks on the merits of what the Board had decided to do.

(n)    In October 2015, the Doctor herself wrote to the Agency. She explained that the Board’s conditions on her registration were having a devastating effect on her career. She wanted the Board to remove those conditions and offered instead to make a confidential written undertaking in which she promised to fulfil conditions that were similar to those the Board had imposed. Her key concern was publicity. The conditions on her registration had been published on the National Register of Health Practitioners (the “National Register”). The National Register can be inspected by the public. In her letter, the Doctor referred to her gender and ethnicity but expressly stated she was “not suggesting that there is any racial basis” for her treatment. Nonetheless, she said she stood “fraught with the possibility by those who might want to use these factors [ie gender and ethnicity] and make me more vulnerable to unwarranted complaints”. That comment was directed at SJOG. It was not directed at the Agency. Indeed, the Doctor expressly stated in her letter that the harm she was suffering was “through no fault” of the Agency. Importantly, there was no suggestion in this letter that previous representations made by the Doctor’s lawyers to the Agency were false or had been made without her instructions or that her previous lawyers had not been authorised to negotiate on her behalf in the way they did.

(o)    In November 2015, the Board declined to remove all of her conditions of registration; it removed some and amended others. Importantly, the Board decided that these conditions would not be published on the National Register. The Board informed the Doctor that she had a right to appeal its decision to the Western Australia State Administrative Tribunal (the “WA Tribunal”). Again, I can find no evidence that this decision to ameliorate the Doctor’s conditions of registration was made because of the Doctor’s age, gender, or ethnicity or because of any disability she might have had. The decision might not have been the preferable one. It may, for some reason, have been misconceived. It may have been preferable to have not published the conditions of registration on the National Register in the first place. But, if that were so, the Doctor’s remedy was to appeal to the WA Tribunal. The evidence before me was that the Doctor had pursued and then abandoned such an appeal in relation to the earlier decision to take immediate action in relation to the Doctor’s registration. The Doctor disputed that this had occurred with her knowledge or authority. That may be so, but it does not support a finding that the Board had unlawfully discriminated against her.

(p)    In December 2015, after receiving further submissions from the Doctor, the Board decided to remove the remaining conditions on her registration. It gave its reasons for doing so as follows:

The Board decided to remove the remaining conditions from your registration because the Board acknowledged that the requirement for supervision has impacted upon your ability to sustain full time work and considers that there has been a material change in your circumstances in this regard. Accordingly, the Board considers that it is appropriate to remove the conditions that relate to supervision from your registration.

I have no reason to doubt the accuracy of this explanation given by the Board.

(q)    The Doctor then wrote to the Board thanking it for its decision to remove all the conditions on her registration. She asked the Board to write a letter confirming: (i) that she had no health concerns that had impacted her ability to practise; and (ii) that the Board had no concerns with respect to her skill level or competency as a medical specialist.

(r)    The Board responded in May 2016 stating that whilst it sympathised with the Doctor’s situation, it had removed the conditions on the registration because the Board was satisfied that the Doctor had successfully complied with them and was satisfied that they were no longer needed. In my view, there is no evidence which suggests that the Board responded in this way because of the Doctor’s age, gender, or ethnicity or because of any disability she might have had.

(s)    A further attempt to enlist the support of the Board was made by the Doctor in May 2016. She wanted the Board again to confirm, amongst other things, her competency, and that she had not had personal health issues warranting action. She wanted the Board to issue her with a “certificate of good standing” so she could apply for jobs overseas.

(t)    The Chair of the Western Australia Board of the Board replied sympathetically. He wrote:

While I am sorry for your ongoing distress and difficulties in obtaining employment, the Board is not able to agree with your requests. The decision made by the Board was based on the information which was available at the time.

…

Since December 2015, you have engaged in persistent communication with AHPRA and the Board, requesting the Board “remedy” the matter. Given the information that was available to the Board in making its decision, I regret that this is not possible and in exercising its responsibilities it made the only possible decision. I am sure that you understand that this decision was not taken lightly and that the Board addressed the issues in a most considered and concerned manner.

Once again, I am not satisfied that there is any evidence before me which would support a finding that the Board decided to reply in this way because of the Doctor’s age, gender, or ethnicity or because of any disability she might have had. If the Board or the Agency had erred, and it may well have, it did not do so for such reasons.

29    Before me, the Doctor submitted that the Agency (and I infer the Board) unlawfully discriminated against her in four ways. She first contended that the Agency did not provide her with the same procedural fairness afforded to other doctors. In that respect, she contended that one of the guiding principles of the National Law (WA) is the use of minimum regulatory force. The second contention was that the Agency and the Board had used disproportionate force against her by imposing conditions on her registration and having these published on the National Register. They would not have behaved that way, it was contended, with respect to other practitioners. The inference was thus available that the Agency and the Board had unlawfully discriminated against the Doctor. The third contention was that the Board unlawfully discriminated against the Doctor, and acted beyond power, in investigating her health. That investigation was not justified by the Event. The fourth contention was that the Board had undertaken an investigation into the Doctor’s health without telling her first about the nature of impairment they were investigating. In that respect, the Doctor alleged that this investigation had begun covertly. Each of the third and fourth contentions, as I understood them, were said to be examples of discriminatory behaviour explicable by reason of the Doctor’s age, gender, ethnicity or disability (if any).

30    I respectfully am unable to agree with these contentions for the following reasons:

(a)    As to the first contention, I do not think that the Doctor was denied procedural fairness. The recitation above of her interactions with the Agency and the Board demonstrate that at key moments she was given the opportunity to respond or make submissions. On each occasion they were considered, and reasons were given where the Agency/Board did not agree with her or her lawyers or could not accommodate her wishes. In my view, as a result of a continuous interaction between the Doctor, her lawyers and the Agency and Board, her penalty was largely the outcome of negotiation. Her conditions on registration were finally removed as a result of her own submission.

(b)    As to the second contention, there was no evidence before me that the Agency and Board had used disproportionate “force” against her, or used “force” of a kind not used against other doctors in comparable circumstances. This contention rose no higher than an assertion. Ultimately, the Doctor was allowed to return to medical practice, at first with conditions on her registration, and then without any conditions. Why this led to the effective loss of her career in Australia is very troubling. However, reading the correspondence between her and the Agency/Board, I find that this consequence was not what the Agency/Board intended.

(c)    As to the third contention, it may be the case that the Board was mistaken to judge that the Event, and associated allegations made against the Doctor, were the product of a health impairment. After all, her subsequent health assessment, which I have read, effectively gave her a clean “bill of health” but made recommendations about the need for, amongst other things, mentoring and counselling. However, I am not satisfied that if the Board had been mistaken about this issue it was because of the Doctor’s age, ethnicity, gender or disability (if any). There is simply no evidence to support that conclusion, and I would not infer it.

(d)    As to the fourth contention, I find that it may possibly have been ill-judged or mistaken as the Doctor submitted. But it was not the product of unlawful discrimination. Again, there is simply no direct evidence to support that conclusion, and I would not infer it.

31    For the foregoing reasons, leave should be denied.

Application for an extension of time

32    Because of the conclusion I have reached concerning leave, it is unnecessary for me to consider the Agency’s submission that I should not exercise my discretion to extend time because the Doctor was late in filing her application and because her proceeding would not enjoy realistic prospects of success.

Conclusion

33    For the foregoing reasons, in the proceeding against SJOG, I will order that:

(a)    The application for an extension of time be granted.

(b)    The applicant have leave to bring her proceeding alleging unlawful discrimination against the respondent pursuant to s 46PO of the AHRC Act.

(c)    The matter be referred to mediation before a Registrar of this Court on a date to be fixed.

(d)    Costs be reserved.

34    In the proceeding against the Agency, I will order that the Doctor not be granted leave to bring her proceeding alleging unlawful discrimination against the Agency pursuant to s 46PO of the AHRC Act. I will hear the parties as to the question of costs.

Associate:

Dated:    5 September 2019