Dental Board of Australia v Draper (No 2) [2025] QCAT 414

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dental Board of Australia v Draper (No 2) [2025] QCAT 414 PARTIES: DENTAL BOARD OF AUSTRALIA (applicant) v ANDREW DRAPER (respondent) APPLICATION NO/S: OCR313-23 MATTER TYPE: Occupational regulation matters DELIVERED ON: HEARING DATE: 21 May 2025 (ex tempore) 21 May 2025 HEARD AT: Brisbane DECISION OF: Judicial Member Dick SC ORDERS: Pursuant to s 61(1)(b) of the QCAT Act, an extension of time is granted to the respondent to make an application pursuant to s 138 of the QCAT Act. Pursuant to s 139 of the QCAT Act, the respondent’s application to reopen the proceedings filed on 20 February 2025 is dismissed. APPEARENCES & REPRESENTATION: Applicant: K Reid, solicitor of Clayton Utz Respondent: Self-represented REASONS FOR DECISION [1] On 13 January 2025, a sanction was imposed on the respondent in this matter and that sanction included a suspension for three months.1 The beginning of the sanction was delayed on the offer of the Dental Board of Australia (‘Board’) and accepted by the Tribunal on the basis that that would allow the respondent to make arrangements such as obtaining a locum to keep his practice in place. The Tribunal at the time was aware that he was the breadwinner of the family and had demands on his income.2 1 Dental Board of Australia v Draper [2025] QCAT 4, 6 [3]. 2 Hearing Brief, filed in the Tribunal 15 July 2024, 342 [25]. -- 1 of 3 -- 2 [2] Unfortunately, after the decision was handed down, the respondent was injured on 1 February 2025.3 There is some supporting evidence before the Tribunal which it accepts. In this case, there is no appeal or dispute sought with respect to any substantive matter from the decisions or reasons according to the respondent. He seeks however, to vary the date of the application of commencement of the suspension and the underlying reason he says for this request is that of financial hardship, which would amount to an unreasonable and substantial injustice and not the intended outcome of the disciplinary action. [3] The Board on the other hand says a number of things. First of all, the Board says that any reopening application must be made within 28 days of the relevant day, being the day the party is given notice of the written decision. This did not occur. The respondent’s application was nine days out of time. He has not sought in writing an extension of time pursuant to section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to extend the time to file his application, nor has he filed evidence explaining the delay, but he has explained that from the Bar Table. [4] The Board submits that the Tribunal should not exercise its discretion to extend the time limit for the respondent to make the application. However, in all the circumstances, I am prepared to do so, so the matter can be heard and finalised. [5] The provisions relating to the reopening of a proceeding are contained in the QCAT Act. Section 138 sets out the requirements for an application to reopen. Relevantly, the application (1) must state the reopening ground on which it is made; and (2), be made within the period and in the way stated in the rules.4 I have already given an extension to the period. [6] Under section 139, where a reopening ground exists and where that ground could be ‘effectively or conveniently dealt with by reopening the proceeding’, the Tribunal may grant the application to reopen.5 A reopening ground exists where the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided. [7] Dealing with the second part of that, it is clear that evidence of the injuries to the respondent was not readily available when the proceeding was heard and decided. The Tribunal can reopen on the basis of documents without a hearing, but in this case, I have opted to have the parties before me. The determination of whether a proceeding should be reopened is an exercise of discretion which should not be interfered with lightly. [8] The reason the suspension was delayed was to allow the respondent to take steps so that he could keep his practice operational and he tells me it is still operational. [9] In conclusion, the Board submits the threshold matters required for an application to reopen the proceedings have not been established by the respondent and that the Tribunal should dismiss the application. I take that to mean that the respondent is arguing that there is no “reopening ground”, in that the respondent would not suffer a substantial injustice if the proceeding was not reopened. Alternatively, the Board 3 Application for miscellaneous matters, filed in the Tribunal 20 February 2025, 6. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) ss 138(1)-(2). 5 QCAT Act s 139(4)(b). -- 2 of 3 -- 3 submits that if the Tribunal decides to reopen the proceedings, the Tribunal should decide to confirm the previous final decision. [10] In respect of the first submission, the Tribunal is of the view that the threshold matters to reopen the proceedings have not been established by the respondent as said during the submissions this morning. It is now 21 May 2025. The suspension will cease on Sunday, 25 May 2025. Even if the respondent works on Saturday, that is at the most three business days. If, however, I am wrong about that, and if I did decide to reopen the proceedings, I am of the opinion that I should confirm the previous final decision. What happened after that decision was very unfortunate, but considering the Tribunal at that time was working to keeping the suspension moderate and to allowing the respondent to organise his practice, which is something he could do even with his injuries to his hands, and the fact that the practice is still operational leads me to the view that the original decision was the correct one and I confirm it. [11] For the reasons given, the Tribunal makes the following findings and orders: 1. Pursuant to s 61(1)(b) of the QCAT Act, an extension of time is granted to the respondent to make an application pursuant to s 138 of the QCAT Act. 2. Pursuant to s 139 of the QCAT Act, the respondent’s application to reopen the proceedings filed on 20 February 2025 is dismissed. -- 3 of 3 --