Broadbent v Medical Board of Australia [2024] QCA 37

SUPREME COURT OF QUEENSLAND CITATION: Broadbent v Medical Board of Australia [2024] QCA 37 PARTIES: MICHAEL RUSSELL MARK BROADBENT (appellant) v MEDICAL BOARD OF AUSTRALIA (respondent) FILE NO/S: Appeal No 12691 of 2023 SC No 5898 of 2023 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – Unreported, 14 September 2023 (Cooper J) DELIVERED ON: 19 March 2024 DELIVERED AT: Brisbane HEARING DATE: 12 March 2024 JUDGES: Bond JA, Fraser AJA and Brown J ORDER: The appeal is dismissed with costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where the appellant and the respondent (or its statutory predecessor) had been engaged in extensive litigation over many years – where the litigation stemmed from disciplinary proceedings successfully prosecuted against the appellant by the respondent’s statutory predecessor more than 13 years ago – where the respondent and its statutory predecessor had been mainly successful in the long history of the litigation – where the appellant applied to have the respondent declared a vexatious litigant – where the appellant’s application was a collateral attack on the outcomes of the previous litigation – where the appellant had no prospect of succeeding at trial – where the primary judge correctly exercised a discretion summarily to dismiss the appellant’s application Uniform Civil Procedure Rules 1999 (Qld), r 658 Vexatious Proceedings Act 2005 (Qld), s 6(2) Broadbent v Medical Board of Queensland [2010] QCA 352, considered Colston v McMullen [2011] QCA 2, cited Cooper v Mbuzi [2012] QSC 105, cited Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1, cited -- 1 of 7 -- 2 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, applied Medical Board of Australia v Broadbent [2023] FCA 673, cited Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2015] 1 Qd R 476; [2014] QCA 233, cited Pi v Pierce and Attorney General for NSW [2015] NSWCA 118, cited COUNSEL: The appellant appeared on his own behalf S C Russell for the respondent SOLICITORS: The appellant appeared on his own behalf James Conomos Lawyers for the respondent [1] BOND JA: By originating application filed in the Supreme Court on 15 May 2023, the appellant sought an order under the Vexatious Proceedings Act 2005 that the Medical Board of Australia be declared a vexatious litigant. [2] By interlocutory application filed 17 July 2023, the Board sought an order summarily dismissing the originating application, pursuant to UCPR Rule 658 or, alternatively, the inherent jurisdiction of the Court. [3] The primary judge heard oral argument on 14 September 2023 and, in an ex tempore judgement, his Honour acceded to the Board’s application and ordered the originating application be dismissed. [4] The appellant commenced his appeal in an irregular manner by filing an application for leave to appeal, supported by an affidavit. Leave was not required. The appellant ought to have commenced his appeal by filing a notice of appeal in the usual way. [5] The appellant, who represented himself in this Court and below, invited this Court to overlook his procedural errors and to treat his application and the supporting affidavit (which was entirely argumentative in nature) as documents from which his grounds of appeal could be discerned. The Board did not oppose this course. [6] There is some difficulty in so doing, because, in the words of Muir JA in Colston v McMullen [2011] QCA 2 at [13], the application is “not recognisable as a notice of appeal. It is prolix, obscure, argumentative and scurrilous. It plainly constitutes an abuse of process”. The same observations apply to the supporting affidavit. [7] In the particular circumstances of this case it is appropriate to take the proposed course because the interests of justice as between the two parties would not have been served by requiring the appellant to attempt to reformulate the documents upon which he relied, so as to comply with the procedural rules of this Court. [8] For reasons which follow, the appeal must be dismissed, with costs. The reasoning of the primary judge [9] I proceed to identify the essential elements of the reasoning of the primary judge. -- 2 of 7 -- 3 [10] First the primary judge correctly concluded that he had the power summarily to dismiss the originating proceeding under either Rule 658 or in the Court’s inherent jurisdiction. He correctly identified the fact that that power must be exercised with the degree of caution discussed in such cases as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Dey v Victorian Railways Commissioners (1949) 78 CLR 62. [11] Second, he identified that the relief sought in the originating application was the declaration of the Board as a vexatious litigant under the Vexatious Proceedings Act 2005. He considered the provisions of that Act, noting the need for the appellant to demonstrate two requirements before the Court’s discretion to make a vexatious proceedings order under s 6(2) arose, namely that: (a) the Board must have instituted or conducted vexatious proceedings in Australia; and (b) that the Board must have instituted or conducted such proceedings frequently. [12] In this regard, the primary judge correctly identified the definition of “vexatious proceeding” set out in the schedule to the Act, namely: “Vexatious proceeding includes — (a) a proceeding that is an abuse of the process of a court or tribunal; and (b) a proceeding instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and (c) a proceeding instituted or pursued without reasonable ground; and (d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.” [13] His Honour noted that the definition had been discussed in greater detail by Mullins J in Cooper v Mbuzi [2012] QSC 105 at [66] – [70]. [14] Third, the primary judge turned to a consideration of the history of the litigation between the appellant and the Board or its statutory predecessor. [15] He identified that the starting point for the litigation seemed to be that in 2007 and 2008 a statutory predecessor of the present Board (namely the Medical Board of Queensland) commenced disciplinary proceedings against the appellant, then a medical practitioner. The proceedings were heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary judge summarised the outcome of that starting point in this way – “On 10 June 2010, QCAT made findings that the applicant had engaged in unsatisfactory professional conduct and gave lengthy reasons for those findings. On 2 September 2010, QCAT recorded an undertaking given by the applicant that, the tribunal having found the grounds for disciplinary action had been established, he would retire permanently from medical practice and never reapply for registration in Australia as a practising medical practitioner. The applicant was also ordered by QCAT to pay 70 per cent of the costs of the Medical Board of Queensland.” -- 3 of 7 -- 4 [16] The primary judge noted that extensive litigation between the two sides followed. Having canvased the detail of the many steps in that litigation, his Honour expressed the view that the proceedings could be summarised as having fallen into one of three broad groups. [17] The first group of proceedings identified by the primary judge was the initial disciplinary proceedings instituted in QCAT and where the Board or its statutory predecessor then responded to the various challenges which the appellant made to that decision. The primary judge found that the appellant proposed to use the originating application as a vehicle to seek to undo the original QCAT decision and much of what followed from it. The primary judge thought that therefore the originating application faced the “significant difficulty that it is attempting to subvert the original decision of QCAT and the decision of the Court of Appeal refusing leave to appeal from that decision.” His Honour expressed the conclusion, correctly in my view, that – “…, it is all but inevitable that if this proceeding was to continue to a trial, the court would have to conclude that the applicant’s argument as to why the disciplinary proceeding was a vexatious proceeding would involve the applicant seeking to re-litigate the matters which he previously litigated in the original disciplinary proceeding and the application to the Court of Appeal for leave to appeal from that decision and, therefore, constitute an impermissible attack on the initial decision by QCAT and the decision of the Court of Appeal.” [18] The second group of proceedings identified by the primary judge encompassed the proceedings associated with the Board’s attempts to recover payment of costs ordered against the appellant by QCAT and the Board’s response to the appellant’s various challenges to those steps. As to this: (a) The primary judge noted that the appellant had argued before him that because the initial disciplinary proceeding was a vexatious proceeding everything else which followed on it was also vexatious. The primary judge rejected that submission saying that whatever criticism the appellant had as to the original QCAT decision, such complaints could not render the later proceeding to recover costs ordered by QCAT of such a character that results in it being a vexatious proceeding for the purposes of the Act. (b) The primary judge acknowledged that in this group of proceedings the appellant did have some success in challenging the steps which the Board had taken in relation to the costs order. The appellant succeeded in obtaining a decision in the Federal Court that the Board’s step of seeking a bankruptcy notice be set aside. The primary judge noted that the reason for that success was that the Board had erroneously obtained a District Court order that the appellant pay the assessed amount of costs to it, as distinct from its statutory predecessor the Medical Board of Queensland. (c) The primary judge noted that the Board had accepted that it made a mistake when it obtained an order that the appellant pay the costs to it and not to the Medical Board of Queensland but the primary judge, correctly in my view, concluded that mistake was not a mistake which could arguably attract the conclusion of characterising the District Court order as vexatious. -- 4 of 7 -- 5 [19] The third group of proceedings identified by the primary judge was the group which concerned the Board’s attempts to recover costs ordered in its favour by the Federal Circuit Court and the Federal Court. In this regard the primary judge noted that as the Board had been party to proceedings in which costs were ordered in its favour, there could be no real dispute that once appropriate procedures had been followed the costs orders gave rise to debts owed by the appellant to the Board. The primary judge noted that so much had been acknowledged by Logan J in Medical Board of Australia v Broadbent [2023] FCA 673 at [8] - [13]. The primary judge noted that the appellant’s only submission as to why the proceedings in the third group were vexatious was that they flowed from the starting point which the appellant had sought to impugn. The primary judge rejected that submission for the same reasons as he had rejected it in relation to the first group of proceedings. [20] Finally, the primary judge summarised the reasons for his rejection of the appellant’s submissions in these terms – “In short, having considered the applicant’s submissions, and bearing in mind the caution with which the power to summarily dismiss proceedings must be exercised, I am satisfied that it is appropriate in the circumstances of this case to make an order dismissing the originating application. I can see no basis upon which, if the matter was to proceed to a trial, the court could be satisfied that the Board has instituted or conducted any vexatious proceedings, let alone that it has done so frequently as required by s 6(1)(a) of the Vexatious Proceedings Act before the power to make a vexatious proceeding order arises under s 6(2). For these reasons, I order that the originating application be dismissed.” The issues on appeal [21] As I have demonstrated, the reasoning of the primary judge involved a determination that the appellant had no prospect of succeeding at trial, and, based on that conclusion, an exercise of the discretion summarily to dismiss the originating application. [22] In order to succeed on appeal, the appellant would have to demonstrate that the primary judge had made some legal, factual, or discretionary error. The latter would require the appellant to demonstrate error in one or other of the well-known bases identified in House v The King (1936) 55 CLR 499 at 504-505, namely that the primary judge had – (a) acted upon a wrong principle; (b) allowed extraneous or irrelevant matters to guide or affect him; (c) mistaken the facts; (d) failed to take into account some material consideration; or (e) made an order which was upon the facts unreasonable or plainly unjust, such that this Court might infer that error must have been made, even though the nature of the error may not be discoverable.1 1 See Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2015] 1 Qd R 476, 494 at [26] per McMurdo P with whom Ann Lyons J agreed, and, to similar effect, Pi v Pierce and Attorney General for NSW [2015] NSWCA 118 at [12] per Ward JA with whom Gleeson JA agreed. -- 5 of 7 -- 6 [23] The appellant’s written argument before this Court did not accept the discipline of identifying error by the primary judge. Rather its focus was the development of a litany of complaints concerning of the Board’s proceedings over many years and an argument by assertion that any assessment of those complaints would justify the relief which he sought. [24] At the hearing of the appeal, the Court sought to have the appellant engage with the identification of error by the primary judge. The appellant suggested that the primary judge had made the mistake of treating his submissions below as scandalous submissions. He submitted that his submissions should properly have been regarded as having exposed scandalous conduct by the Board in the manner by which it dealt with the disciplinary proceedings against him. [25] That submission was misconceived. The primary judge had concluded that significant parts of the appellant’s written submissions and affidavit before him were scandalous within the meaning of Rule 440. However, he did so after ordering that the originating application be dismissed and in the context of addressing and acceding to the Board’s submission that particular documents be removed from the Court file and placed in a sealed envelope marked not to be opened except by order of the court or judge. His conclusion on that question did not form any part of his reasoning in relation to his order dismissing the originating application. [26] It is neither necessary nor appropriate to descend into the mire of the complaints made by the appellant concerning the conduct of the Board. It is evident from the argument advanced by the appellant in this Court and below that the starting point for the appellant’s complaints is his refusal to accept the outcome of the disciplinary proceedings before QCAT which were held more than 13 years ago and which concerned the deaths of the appellant’s patients Mrs McLeod and Mrs Pearce. He has made it perfectly clear that the purpose of the originating application was that it would be the vehicle by which he hoped to expose the errors made by QCAT. [27] The problem for the appellant is that he has already sought to impugn the findings made in the disciplinary proceedings of which he complains and failed successfully to do so. Broadbent v Medical Board of Queensland [2010] QCA 352 records the reasons for judgment of this Court in relation to the appellant’s application for leave to appeal from the decision of QCAT. Chesterman JA considered the adverse findings made by QCAT in relation to the deaths of Mrs McLeod and Mrs Pearce in detail, concluded that the appellant had not made out any arguable case of error of fact in those findings and refused leave to appeal. Fraser JA and McMurdo J (as his Honour then was) agreed. The brief concluding observation by McMurdo J was telling: “As Chesterman JA has explained, the applicant would seek to challenge the Tribunal’s findings by arguing that his own opinions should be preferred to the apparently overwhelming evidence which the Tribunal accepted. The applicant has failed to demonstrate a substantial possibility that the Tribunal misused its advantages in doing so. I agree then with the orders proposed by Chesterman JA.” [28] There was no appeal from the judgment of the Court of Appeal. -- 6 of 7 -- 7 [29] The fact is that apart from the error concerning the costs order obtained in the wrong name to which reference has earlier been made, the Board and its statutory predecessor have been mostly successful in the long history of litigation between them and the appellant emanating from the QCAT decision and the failed application for leave to appeal. The originating application was, as the primary judge recognised, an attempt to advance a collateral attack on the outcomes of previous litigation. The primary judge was right to conclude that the appellant had no prospect of satisfying a judge at trial that the Board had instituted or conducted any vexatious proceedings, let alone that it had done so frequently. [30] No error of fact or law by the primary judge has been identified nor has there been any demonstration that the primary judge failed to take into account relevant considerations or took into account irrelevant considerations. There is no basis whatsoever to justify an inference of error. [31] The primary judge was right to exercise his discretion summarily to dismiss the originating application. Conclusion [32] The appeal must be dismissed with costs. [33] FRASER AJA: I agree with Bond JA. [34] BROWN J: I agree with Bond JA. -- 7 of 7 --