Federal Court of Australia Souraki Azad v Mithila Family Trust t/as Rockingham GP [2023] FCA 404 File number: WAD 92 of 2023 Judgment of: COLVIN J Date of judgment: 1 May 2023 Division: Fair Work Division Registry: Western Australia National Practice Area: Employment and Industrial Relations Number of paragraphs: 8 Date of hearing: 1 May 2023 Counsel for the Prospective Applicants: The prospective applicants appeared in person Counsel for the First, Second and Third Prospective Respondents: Mr J Raftos Solicitor for the First, Second and Third Prospective Respondents: Tang Law Counsel for the Fourth Prospective Respondent: Ms J McKenzie Solicitor for the Fourth Prospective Respondent: Minter Ellison ORDERS WAD 92 of 2023 BETWEEN: MOHAMMAD AMIN (DARIUS) SOURAKI AZAD First Prospective Applicant MARJAN (NAJMEH) NOROUZI Second Prospective Applicant AND: MITHILA FAMILY TRUST TRADING AS ROCKINGHAM GP First Prospective Respondent HARSHA JAYATILAKE Second Prospective Respondent MITHILA JAYATILAKE Third Prospective Respondent AUSTRALIAN HEALTH PRACTITIONERS REGULATION AGENCY (AHPRA) - INCLUDING MEDICAL BOARD OF WA, AHPRA DEPARTMENT OF NOTIFICATIONS Fourth Prospective Respondent order made by: COLVIN J DATE OF ORDER: 1 MAY 2023 THE COURT ORDERS THAT: 1. The application against the fourth respondent is dismissed. 2. The application do stand as an originating application commenced by way of application and affidavit. 3. The applicant do file and serve a concise statement and an application for interlocutory injunction. 4. Upon the filing of a concise statement and an application for interlocutory injunction the application be listed for hearing on a date to be fixed. 5. If no application for an interlocutory injunction is filed before 29 May 2023 the matter be listed for case management on a date to be fixed. 6. On or before 15 May 2023 the applicant do file any submissions of no more than 3 pages in opposition to the costs orders sought by the first to third respondents and the fourth respondent respectively. 7. On or before 29 May 2023 the first to third respondents and the fourth respondent respectively do file and serve any submissions in reply on the question of costs. 8. The question of costs be determined on the papers. 9. There be a referral of the applicants for legal assistance as to the formulation of their claims. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from the transcript) COLVIN J: 1 Dr Azad is a medical practitioner. He was working for a medical practice in Rockingham. He says he was working as a contractor and that his contract has been terminated and he says that the termination was not lawful. He seeks an order that would require the medical practice to allow him to continue to provide care to his patients and be able to earn an income in circumstances where he says he is under financial pressure. 2 He also says that by the terms of the contract he is obliged to indemnify the practice in respect of the work that he does. For that reason he says that there really is no risk to the practice if the order was granted on an urgent basis so that he could continue to provide care to his patients. 3 Dr Azad commenced these proceedings using a procedure which is one which applies where the matter is so urgent that relief can be sought on the basis that the applicant intends to commence a proceeding and it contemplates that the application is sought without notice to the prospective respondents. The matter was listed before me as the duty judge on that basis. 4 In the result, Dr Azad served the application on the respondents who have appeared today to oppose the application. Nevertheless, having regard to the nature of the application, it needs to be demonstrated that the matter is of such urgency that it is appropriate to consider whether to grant the relief sought on an extremely urgent basis. 5 Despite the particular circumstances, having regard to the nature of the relief that is sought particularly as it would have the consequence that would it require the medical practice to, in effect, re-engage Dr Azad in circumstances where there is a dispute between the parties, with the consequence that Dr Azad would then provide medical care to patients as part of the conduct of the medical practice, it seems to me that it would not be fair to consider the application and make orders without providing appropriate notice to the respondents to enable them to be able to prepare and meet the claim for the orders that are sought. 6 So for those reasons, I decline today to make the orders sought in relation to the medical practice. It should be noted that by the application Dr Azad also sought orders urgently concerning steps that have been taken by those responsible for supervising the conduct of medical practitioners (Regulator). They concern a notice that has been issued to Dr Azad under s 157 of the Health Practitioner Regulation National Law. That notice is a form of show cause notice which affords Dr Azad an opportunity to make submissions before any steps are taken. Under the relevant provision, there is a requirement for the Regulator to have regard to any submissions that are provided. In the course of the hearing, Dr Azad accepted that at this stage it is appropriate for him to participate in that procedure by providing submissions and then consider his position in the light of the way matters develop. It may be noted that the Regulator maintained that the Court did not have jurisdiction because the Health Practitioner Regulation National Law takes effect under state legislation by means of a cooperative scheme. 7 The second applicant in the proceedings, Dr Norouzi (who is the wife of Dr Azad) agreed with the position taken by Dr Azad and did not seek separate relief. Therefore, it is not necessary to consider whether relief should be made on that part of the application. 8 For those reasons, I will not make the orders sought on an urgent basis today. However, it seems to me that I should hear from the parties as to the manner in which this matter should proceed having regard to the nature of the application that has been commenced. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate: Dated: 3 May 2023