In Nugawela v Medical Board of Australia (WA Branch) [2024] WASC 15, the Supreme Court of Western Australia considered whether a mediator presiding over a mediation in the State Administrative Tribunal (SAT) had the power to make orders giving effect to a settlement reached between the parties at the end of that mediation.

The background to the case involved disciplinary proceedings brought by the Medical Board against Dr Nugawela, a medical practitioner. After an unsuccessful mediation, a further mediation was held which resulted in signed consent orders between the parties. The mediator, upon being presented with the consent orders, stated words to the effect that she would make orders to give effect to them. Orders were subsequently made in identical terms to the consent orders.

In considering whether the mediator had the power to make the orders, the court analysed the interplay between the procedural provisions in the Health Practitioner Regulation National Law (HPL) - the legislation under which the disciplinary proceedings were brought - and the procedural provisions of the SAT Act which establishes SAT. The court held that the consent orders constituted an application to the mediator to approve the settlement reflected in the consent orders. The court was satisfied that the mediator made an independent decision to make the orders, as required by the HPL.

Citing the Western Australian Court of Appeal decision in Chang v Legal Profession Complaints Committee [2020] WASCA 208, the court stated that the consent of parties alone is not enough to finally dispose of vocational proceedings, with the tribunal needing to be independently satisfied of the appropriateness of any settlement. However, the court noted that the parties' agreement is still a relevant consideration in making that assessment.