Mustac v Medical Board of Western Australia

[2007] WASCA 128

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Tribunals
3. › State Administrative Tribunal
4. › Relationship between tribunals and courts
5. › Whether judicial comity applies between courts and administrative tribunals
6. › Whether tribunal bound by findings of fact of Supreme Court in earlier proceedings involving different parties
7. › State Administrative Tribunal Act 2004 (WA), ss 59, 105
1. Practice and Procedure
2. › Judicial comity
3. › Scope and nature of the practice
4. › Whether judicial comity extends to findings of fact
5. › Whether judicial comity operates between courts and administrative tribunals
6. › Whether judicial comity constrains issues open to parties
1. Estoppel
2. › Issue estoppel
3. › Cause of action estoppel
4. › Whether findings of fact in disciplinary proceedings concerning different patients give rise to issue estoppel
5. › Distinction between ultimate facts and subsidiary facts
6. › Anshun estoppel
1. Medical practitioners
2. › Disciplinary proceedings
3. › Improper conduct in a professional respect
4. › Use of psychometric testing
5. › Medical Act 1894 (WA), s 13

Quick Take

Judicial comity is a practice limited to questions of law between courts of coordinate jurisdiction; it does not extend to findings of fact and does not operate between courts and administrative tribunals. An administrative tribunal must determine questions of fact on the evidence before it, and cannot treat prior judicial findings of fact as binding or as a basis for excluding relevant evidence, regardless of the judicial status of the tribunal member. Where a tribunal president has expressed concluded views on central factual questions in a preliminary ruling, the tribunal should be differently constituted for the substantive hearing.