It is not common to see a conduct matter find its way as far as a State appellate court, but that was the case in South Australia where a conduct matter came before the South Australian Court of Appeal. The issue was the period of disqualification imposed on an optometrist.
Bhoola v Optometry Board of Australia [2022] SCSCA 20 (on AUSTLII).
The Court helpfully provided a summary.
This is an application for leave to appeal against orders made by a single Justice of the Supreme Court on 11 May 2021 and 20 May 2021. On 11 May 2021, the Judge allowed an appeal by the respondent, the Optometry Board of Australia, and set aside an order by the South Australian Civil and Administrative Tribunal (the ‘Tribunal’) disqualifying the applicant, Mr Ashok Bhoola, from applying for registration as an optometrist for 12 months. In its place, the Judge disqualified Mr Bhoola from applying for registration as an optometrist for five years, commencing 5 August 2020. On 20 May 2021, the Judge ordered, that the applicant pay the respondent’s costs and disbursements of the appeal, agreed and fixed in the amount of $11,135.
The applicant seeks to set aside the orders of the appeal Judge. Essentially, the applicant seeks a restoration of the Tribunal’s sanction disqualifying the applicant from applying for registration as an optometrist for 12 months.
The appeal grounds are as follows:
1. The appeal Judge erred in finding that the harm engaged by the proven offending had not been adequately considered and/or evaluated by the Tribunal in arriving at an appropriate sanction.
2. The appeal Judge erred in determining that the Tribunal gave excessive weight both to the ramifications of the sanction upon the applicant’s employment, and an absence of future risk of recidivism in arriving at an appropriate sanction.
3. The appeal Judge erred in determining that the Tribunal failed to consider the adequacy of the protection offered by the sanction by failing to have regard to the financial loss incurred by the applicant’s employer or franchisor.
4. The appeal Judge erred in determining that the sanction was inadequate in all of the circumstances.
Held, per the Court, refusing leave to appeal on Grounds 1 and 4, granting leave to appeal on Grounds 2 and 3, but dismissing the appeal:
1. In relation to Ground 1, the appeal Judge was correct in concluding that the Tribunal erred in its approach in determining sanction and in imposing a 12 month disqualification from registration. The appeal Judge was also correct in concluding that the Tribunal did not properly consider the applicant’s risk of recidivism or repetition of conduct.
2. In relation to Ground 2, the appeal Judge erred in finding that the Tribunal’s expressed ‘reluctance’ to suspend or cancel the applicant’s registration meant that it erroneously took into account the applicant’s loss of employment when imposing sanction. The appeal Judge was also in error in concluding that the Tribunal misused the character evidence.
3. In relation to Ground 3, the appeal Judge erred in finding that the Tribunal did not take into account the financial loss suffered by the employer.
4. In relation to Ground 4, the applicant has established no error in the appeal Judge’s finding that the period of disqualification imposed by the Tribunal was inadequate. Further, the appeal Judge was correct in concluding that the Tribunal’s disqualification of the applicant from applying for registration as an optometrist for 12 months was inadequate.
5. On a review of all the materials and submissions, no different sanction should be imposed. The applicant’s conduct was a serious departure from the standards required of the profession. A substantial sanction was required to protect the public and maintain confidence in the profession.
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