Fernando v Medical Practitioners Board (No 2) [2003] VSC 168 (23 April 2003)

Last Updated: 4 June 2003

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5253 of 2003

DR NEVILLE FERNANDO	Plaintiff
v
MEDICAL PRACTITIONERS BOARD	Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2003
DATE OF JUDGMENT:	23 April 2003
CASE MAY BE CITED AS:	Fernando v Medical Practitioners Board (No. 2)
MEDIUM NEUTRAL CITATION:	[2003] VSC 168

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Administrative Law - Statutory tribunal acting precipitately but not corruptly, perversely or with serious misconduct - Injunction granted - No order as to costs - Section 27 Medical Practitioners Act 1994

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Ruskin, Q.C.	Tress Cocks & Maddox
For the Defendant	Ms McLeod	Minter Ellison

HIS HONOUR:

1. This is an application by Dr Neville Fernando for leave to discontinue an originating motion which he issued on 14 April 2003 against the Medical Practitioners Board of Victoria seeking relief in respect of a decision made by the Board pursuant to s. 27 of the Medical Practice Act 1994 that his registration as a medical practitioner in Victoria be immediately suspended. The Board made that decision on the basis of a decision of the equivalent tribunal in Tasmania. It had, shortly before, found Dr Fernando guilty of unprofessional conduct for events which occurred in 1996, but which were dealt with by the Tasmanian tribunal only in 2003.
2. The Board suspended Dr Fernando's registration immediately, as a result of which he sought relief from this Court. On 14 April I granted interim relief for some days to enable Dr Fernando to practise upon an undertaking being given that he would not practise in respect of female patients, and in anticipation of the Board reconsidering the matter on last Thursday, 17 April. The Board did consider the matter on that day and, after accepting some further undertakings from Dr Fernando, itself lifted the suspension which I had ordered it to lift in a temporary way.
3. Dr Fernando now says that he has received all the relief that he could have got from the originating motion, in that he is practising again, albeit under certain constraints which he has imposed upon himself as a condition of the Board lifting its suspension. He appears today to seek leave to discontinue the proceeding and a consequent order for costs against the Board.
4. Mr Ruskin of Queen's Counsel, who has appeared for Dr Fernando, has referred the Court to two decisions: Magistrates' Court of Victoria at Heidelberg v. Robinson[1] and Psychologists' Registration Board of Victoria v. The Herald & Weekly Times[2]. In the first of those decisions the Court of Appeal was dealing with what it described as serious misconduct on the part of a magistrate, who had refused to hear an application for a stay of a compensation order in a criminal case. He did so with the admonition to the duty solicitor who was appearing for the person who was to pay the compensation, "Stop wasting my time." In that case the Court held that an award of costs may be made against an inferior court if it has committed some serious misconduct or serious impropriety, including a failure to observe some fundamental principle of justice, even though it was ignorant of that principle. The headnote goes on to say:

"But a mere blunder should not attract an award of costs. The approach should be benign, or reasonably so, where a bona fide mistake has been made."

Mr Ruskin referred to the judgment of Charles, J.A. at p.244, in which his Honour noted that the Magistrates' Court at Heidelberg is overworked and that it was necessary for matters to be dealt with succinctly and expeditiously, but pointed out that overbearing behaviour by a magistrate, indeed bullying, cannot be said to have represented "the impersonal authority of the law". The Court awarded costs against the Magistrates' Court. It upheld a decision of Gillard, J. in doing so.

5. In the other case the same principle was applied and there the Court held, again in a judgment of Charles, J.A., that there is a very well established line of authority which holds that costs ought not be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that the tribunal has been guilty of serious misconduct or corruption or has acted perversely.
6. In the present circumstances the Medical Practitioners Board acted precipitately. It ought not to have made the order which it made, but one could not say that it had acted so far in excess of its powers as to fit the description given by Charles, J.A. in the Psychologists Registration Board Case. It was not guilty of serious misconduct or corruption and it did not act perversely. It saw its duty as the immediate suspension of Dr Fernando. It might have been wiser had it considered the matter further before making that order, particularly as the matters in respect of which the Tasmanian board had found him guilty had at that stage occurred some seven years before it made its decision.
7. In all the circumstances I consider it inappropriate to award costs against the Board. Ms McLeod, who appeared for the Board on this occasion, did not seek costs. It was appropriate of the Board to take that position in the circumstances.
8. I will grant leave to the plaintiff to discontinue the proceeding. There will be no order as to costs.
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[1] [2000] VSCA 198; [2000] 2 V.R. 233.

[2] Unreported, [2000] VSCA 118, 16 June 2000.