Broadbent v Medical Board of Australia [2021] QDC 189

DISTRICT COURT OF QUEENSLAND CITATION: Broadbent v Medical Board of Australia [2021] QDC 189 PARTIES: MICHAEL RUSSELL MARK BROADBENT (applicant) v MEDICAL BOARD OF AUSTRALIA (respondent) FILE NO: 242/13 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 17 September 2021 DELIVERED AT: Brisbane HEARING DATE: 15 March 2021 JUDGE: Richards DCJ ORDER: 1. The application filed by the applicant is dismissed. 2. Pursuant to r 388 of the UCPR the Costs Order dated 14 January 2014 is varied to substitute the name of the Medical Board of Queensland in place of the name of the Medical Board of Australia as applicant. 3. No order as to costs. CATCHWORDS: PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – CORRECTION UNDER SLIP RULE – where the applicant practiced medicine as a surgeon – where the Queensland Civil and Administrative Tribunal found the applicant’s treatment of two patients amounted to unsatisfactory professional conduct – where the applicant was subject to a Costs Order – where the then applicant, the Medical Board of Queensland, sought to enforce the QCAT Costs Order by applying to this Court for a Costs Assessment – where a Costs Order was granted by this Court in favour of the wrong party, the Medical Board of Australia – where, for this reason, the applicant seeks to have the Costs Order imposed by this Court set aside – where the application is brought more than seven years after the Costs Order in this Court was made – whether the order as to costs in favour of the wrong party was a mere "slip" or error by the then applicant that can be amended – whether the circumstances warrant the exercise of the discretion conferred -- 1 of 13 -- 2 on the Court under r 388 of the Uniform Civil Procedure Rules 1999 (Qld) LEGISLATION: Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 (Qld) s 123 Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 (Qld) Health Practitioners (Professional Standards) Act 1999 s 124(1)(a), s 241(2), s 255 Health Practitioner Regulation National Law Act 2009 (Qld) s 4, s 23, s 32, s 295 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 247, ss 255–257 Uniform Civil Procedure Rules 1999 (Qld) Part 3, Chapter 17A, r 69(1), r 371, r 371(2), r 375, r 388 CASES: Broadbent v Medical Board of Australia [2015] FCA 717 Broadbent v Medical Board of Australia [2014] FCCA 1406 Medical Board of Queensland v Broadbent [2010] QCAT 280 Re Swire, Mellor v Swire (1885) 30 Ch D 239 Rose v Terry Hewat Commercial Diving Pty Ltd & Anor [1999] QSC 203 Queensland Pork Pty Ltd v Lott [2003] QCA 271 COUNSEL: M R Broadbent appeared self-represented S McLeod QC with S Gibson for the respondent SOLICITORS: James Conomos Lawyers Pty Ltd for the respondent Applications [1] By application filed 18 March 2021, the applicant seeks the following orders: 1. That the Costs Order imposed on the 14 January 2014 by a Deputy Registrar of the District Court be set aside pursuant to the judgment of Rangiah J of the Federal Court of 15 July 2015; and 2. That the respondent refund $140,000 paid in 2014 in partial settlement of the Costs Order. [2] The applicant further seeks to have the respondent pay the costs of: -- 2 of 13 -- 2 1. This application; 2. The QCAT Costs Order of 2 September 2010; 3. The Certificate of Costs Assessment filed on 10 April 2013; and 4. Defending the alleged debt from September 2010. [3] The respondent filed a cross-application on the 22 January 2021, seeking the following orders: 1. Pursuant to UCPR, rule 69(1), or alternatively rule 371(2) and/or rule 375, the Medical Board of Queensland be substituted as Applicant in the proceeding in place of the Medical Board of Australia nunc pro tunc; 2. Pursuant to rule 371(2) and or rule 375, the order dated 14 January 2014 be varied so as to substitute the name of the Medical Board of Queensland in place of the name of the Medical Board of Australia as Applicant; and 3. Costs reserved. [4] The applicant opposed that application. Background [5] In 2007 and 2008, the Medical Board of Queensland (‘MBQ’) commenced disciplinary proceedings against the applicant. It was alleged by the MBQ that the applicant’s treatment of 13 patients constituted unsatisfactory professional conduct.1 [6] On 7 September 2009 the Health Practitioners Tribunal commenced a hearing into the treatment of two of those patients. At the time, the applicant was practicing medicine as a surgeon. The alleged conduct was in relation to the applicant’s management of patients post major weight loss surgery, to which he performed. [7] On the 1 December 2009, the Health Practitioners Tribunal was abolished and its jurisdiction transferred to the Queensland Civil and Administrative Tribunal (‘QCAT’) pursuant to ss 247 and 255-257 of the Queensland Civil and Administrative 1 Health Practitioners (Professional Standards) Act 1999 s 124(1)(a). -- 3 of 13 -- 3 Tribunal Act 2009 (Qld). On the 10 June 2010 QCAT found the applicant’s treatment of the two patients amounted to unsatisfactory professional conduct.2 [8] On 2 September 2010, a hearing was held in relation to penalty and costs. The applicant was required to give an undertaking pursuant to s 241(2) of the Health Practitioners (Professional Standards) Act 1999 (Qld) (‘Professional Standards Act’) that he would not reapply for registration as a medical practitioner and retire permanently from practice. On 22 October 2010 a Costs Order was made in QCAT ordering the applicant to pay 70% of the MBQ’s costs of the QCAT disciplinary proceeding, assessed on the standard basis unless otherwise agreed (‘QCAT Costs Order’). The QCAT Costs Order was made pursuant to s 255 of the Professional Standards Act, which provides: “255 Costs (1) The tribunal may make any order about costs it considers appropriate for disciplinary proceedings. (2) However, the costs allowable are only— (a) the costs that would be allowable if the disciplinary proceedings were proceedings in the District Court; and Editor’s note— See the Uniform Civil Procedure Rules 1999, schedule 2 (Scale of costs—District Court). (b) if the board conducted an investigation of the registrant before referring the matter for hearing by the tribunal—the cost to the board of conducting the investigation. … (4) If an order is made about costs— (a) the order may be filed in the registry of the District Court; and 2 Medical Board of Queensland v Broadbent [2010] QCAT 280. -- 4 of 13 -- 4 (b) on being filed, is taken to be an order made by a District Court and may be enforced accordingly.” [9] The Medical Board of Australia (‘MBA’) sought to enforce the QCAT Costs Order by applying to this Court for a Costs Assessment on 24 January 2013.3 A Costs Order was made on 14 January 2014 by a Deputy Registrar of this Court in favour of the MBA, (‘Costs Order’) as opposed to the MBQ: “THE ORDER OF THE COURT IS THAT: 1. The Respondent pay the Applicant’s costs pursuant to: (a) the order of the Queensland Civil and Administrative Tribunal dated 2 September 2010; and (b) The certificate of the costs assessor filed on 10 April 2013, assessed at $387,862.17.” National Legislative Scheme [10] On 1 July 2010 the new national uniform legislative scheme for the accreditation, registration and discipline of medical practitioners commenced in Queensland. The transitional provisions of the new legislation abolished the MBQ and subsequently its functions and assets were subsumed by the MBA. This transfer of power occurred after the QCAT Costs Order had been made but before the enforcement proceedings were commenced in this Court. [11] The change in the legislative scheme transferred the functions of the MBQ to the MBA and was affected in two stages. The first stage saw the introduction of the Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 (Qld) (‘Administrative Law Act’) which covered the more substantial elements of the National Scheme, including the registration and accreditation arrangements and dealt with matters such as complaints and conduct as well as transitional arrangements.4 3 Uniform Civil Procedure Rules 1999 (Qld) Part 3, Chapter 17A. 4 Health Practitioner Regulation National Law Bill 2009 Explanatory Notes, pg 2. -- 5 of 13 -- 5 [12] The Health Practitioner Regulation National Law Act 2009 (Qld) (‘National Law Act’) was then introduced to protect the public by establishing a national scheme for the regulation of health practitioners and students. Section 4 of the National Law Act provides that the new scheme applied as a law of Queensland from 1 July 2010.5 [13] Section 32 and 23, respectively, of the National Law Act established the MBA and Australian Health Practitioner Regulation Agency (‘AHPRA’) as bodies corporate from 1 July 2010. [14] In effect, a single national entity was formed and State bodies were abolished. [15] From 1 July 2010, s 295 of the National Law Act provided transitional arrangements for the assets and liabilities of the MBQ, namely: “295 Assets and liabilities (1) From the transfer day for a participating jurisdiction— (a) the assets and liabilities of a local registration authority for a health profession in a participating jurisdiction are taken to be assets and liabilities of the National Agency and are to be paid into or out of the account kept in the Agency Fund for the National Board established for the profession; and (b) any contract, other than an employment contract, entered into by or on behalf of the local registration authority and all guarantees, undertakings and securities given by or on behalf of the authority, in force immediately before the participation day, are taken to have been entered into or given by or to the National Agency and may be enforced against or by the Agency; and (c) any property that, immediately before the participation day, was held on trust, or subject to a condition, by the local registration authority 5 Health Practitioner Regulation National Law Bill 2009 Explanatory Notes, pg 19. -- 6 of 13 -- 6 continues to be held by the National Agency on the same trust, or subject to the same condition and is to be paid into the account kept in the Agency Fund for the National Board.” [16] As a result of these transitional arrangements, from 1 July 2010 the National Agency became the trustee of MBQ’s assets and held these assets on trust for the MBA. [17] The applicant seeks to have the Costs Order set aside on the basis that the Costs Order was made without jurisdiction in favour of the MBA. It is common ground that the Costs Order should not have been made in favour of the MBA. The respondent, however, submits that the Costs Order was made in error and is nothing more than an irregularity which can be appropriately amended. Bankruptcy Proceeding [18] In compliance with the spirit of the Costs Order made, the applicant’s insurer paid $140,000.00 of the costs to the MBA. The remainder of the costs were not paid by the applicant and as a consequence the MBA served a bankruptcy notice on the applicant claiming a debt for the outstanding amount of $247,862.17. [19] The applicant filed an application in the Federal Circuit Court on 5 March 2014 seeking that the bankruptcy notice be set aside. This application was dismissed by Judge Burnett.6 The applicant successfully appealed this decision to the Federal Court.7 [20] The matter was elegantly stated by Judge Rangiah in the judgment:8 “QCAT made its decision that the appellant pay part of the costs of the Medical Board of Queensland on 22 October 2010, after the transfer day of 1 July 2010. It is not disputed that the liability of the appellant to pay those costs was an asset of the Medical Board of Queensland. Accordingly, the asset became an asset of the National Agency pursuant to s 295 of the National Law (Qld). Any costs recovered will 6 Broadbent v Medical Board of Australia [2014] FCCA 1406. 7 Broadbent v Medical Board of Australia [2015] FCA 717. 8 Broadbent v Medical Board of Australia [2015] FCA 717, [68]–[69] & [84]–[85]. -- 7 of 13 -- 7 have to be paid into the account for the Medical Board of Australia kept within the Agency Fund. The appellant accepts that the District Court could validly have made orders that the Medical Board of Queensland’s costs be assessed and that the appellant pay the assessed costs to the Medical Board of Queensland. The appellant accepts that such costs if paid will become an asset of the National Agency and that either the National Agency or the Medical Board of Australia is entitled to enforce the order. However, the appellant argues that there was no basis for the District Court to order that he pay the assessed costs to the Medical Board of Australia... The question that arises is whether the Medical Board of Australia was a “party entitled to be paid costs” for the purposes of rr 705, 708, 710 and 740 of the UCPR. The Medical Board of Australia was not a party to the QCAT proceeding and was not named as a party in QCAT’s decision that took effect as an order of the District Court when filed. QCAT’s decision did not, on its face, require the appellant to pay any costs incurred by the Medical Board of Australia.” [21] The transitional provisions were found to have the effect of preserving the existence of the MBQ and their position as party to the QCAT proceedings.9 It was held that the Costs Order ought to have been made in favour of the MBQ, not the MBA, as it then was. As a result, Rangiah J’s findings form the basis for the applicant’s application, in which he seeks to have the Costs Order set aside. [22] Both parties accept that the Costs Order ought to have been made in favour of the MBQ. The crux of the issue thus becomes whether the Costs Order, ordered in favour of the incorrect party, the MBA, ought to be set aside, or whether it amounts to a mere irregularity and whether the correct party can therefore be substituted for the MBA pursuant to rr 69(1), 371(2) or 375 of the UCPR. 9 Broadbent v Medical Board of Australia [2015] FCA 717. -- 8 of 13 -- 8 Should the respondent be permitted to use the slip rule? [23] It is clear that the QCAT Costs Order was made in favour of the MBQ and that that order was enforceable pursuant to s 255 of the Professional Standards Act. Unfortunately, the solicitor for the MBA which, by the time the Costs Order was filed in the District Court were administering the assets of the MBQ, filed the application under the heading of the MBA. The Costs Order was not contested and the Deputy Registrar ordered that Mr Broadbent pay the MBA’s costs pursuant to the QCAT Costs Order and the certificate of the Costs Assessor filed on 9 April 2013. This was somewhat understandable given the transitional provisions which have been outlined in the Acts. It was only when Mr Broadbent appealed the bankruptcy application in the Federal Circuit Court that Judge Rangiah made the finding that the MBA was not able to apply for the Costs Order to be perfected and that the proper body was the MBQ. At that stage, the Costs Order became unenforceable. [24] The decision above was appealed to the High Court without success by the MBA. Nothing was done in relation to the Costs Order from that time until Mr Broadbent brought this application to set aside the Costs Order of the Deputy Registrar and that has prompted the cross-application to have the Costs Order amended. The amendment is sought because the incorrect interpretation of the transitional provisions has resulted in the Costs Order being erroneously made in favour of a supervening party. [25] The Court has the power to correct orders where there has been an error made. In Re Swire, Mellor v Swire10 per Lindley L J CA: “There is no such magic in passing and entering an order as to deprive the Court of jurisdiction to make its own records true, and if an order as passed and entered does not express the real order of the Court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to the House of Lords by way of appeal.” [26] The applicant has applied to amend the order under r 371 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) which states: 10 (1885) 30 Ch D 239. -- 9 of 13 -- 9 “371 Effect of failure to comply with rules (1) A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity. (2) Subject to rules 372 and 373, if there has been a failure to comply with these rules, the court may— (a) set aside all or part of the proceeding; or (b) set aside a step taken in the proceeding or order made in the proceeding; or (c) declare a document or step taken to be ineffectual; or (d) declare a document or step taken to be effectual; or (e) make another order that could be made under these rules (including an order dealing with the proceeding generally as the court considers appropriate); or (f) makes such other order dealing the proceeding generally as the court considers appropriate.” [27] It was submitted that the Costs Order was irregular rather than void in that it gave effect to a cost assessment that was within the jurisdiction of the court but in consequence of a procedural irregularity and therefore open to amendment under r 371. [28] I accept that the Costs Order should have been made to the benefit of the MBQ. The applicant has previously conceded as much. It seems to me however that the appropriate order to seek amendment is pursuant to r 388 of the UCPR which states: “388 Mistakes in order or certificates (1) This rule applies if— -- 10 of 13 -- 10 (a) there is a clerical mistake in an order or certificate of the court or an error in a record of an order or a certificate of the court; and (b) the mistake or error resulted from an accidental slip or omission. (2) The court, on application by a party or on its own initiative, may at any time correct the mistake or error. (3) The other rules in this part do not apply to a correction made under this rule.” [29] An affidavit of Alfred Jamie Orchard filed on 22 January 2021 on behalf of the respondent indicates that:11 “By letter dated 11 December 2012, a copy of a QCAT order was forwarded [sic] the Registrar of this Honourable Court along with a request that it be filed pursuant to s 255(4) of the Health Practitioners (Professional Standards) Act 1999. The subject line of the letter stated: Medical Board of Queensland v Michael Russell Mark Broadbent “ [30] It attached a copy of the QCAT Costs Order made in QCAT against Mr Broadbent in favour of the MBQ. [31] A file was opened in the registry in the name of the Medical Board of Queensland v Broadbent. [32] The next document filed was the supporting affidavit and application to appoint a costs assessor and the heading of that affidavit replaced the MBQ with the MBA. Thereafter, documents referred to the MBA instead of the MBQ. [33] It seems clear that the proper order from QCAT was filed with the header Medical Board of Queensland. The error was made either by an erroneous interpretation of the national laws or a slip error by the Registrar acting on a mistake made in the 11 Affidavit A J Orchard, filed 22 January 2021, [19]. -- 11 of 13 -- 11 affidavit. In any event, the clear intention of the Costs Order was that it make enforceable, as if it were a District Court order, the QCAT Costs Order. [34] In Rose v Terry Hewat Commercial Diving Pty Ltd & Anor12 Demack J noted, in relation to r 388 at paragraph [6]: “The wording of r388 is not identical to that of O32, r12, but the intention is the same. Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 is authority for the proposition that a court may amend a judgment where the clear intention of the judgment was not expressed through some error.” [35] There is clearly an error here in that the wrong party was the beneficiary of the Costs Order. The philosophy of the UCPR is to promote the practical resolution of matters. It is noted that there is no practical distinction between the MBQ and the MBA for the purposes of enforcement of that particular costs order. The MBA has the statutory authority to recover the costs ordered by QCAT. They can enforce a costs order once it is properly made and they are the beneficial owner of the MBQ’s assets. [36] Furthermore, the power to amend the order does not have to be simply from a clerical error, it can be through a misunderstanding of what the true position is. In Queensland Pork Pty Ltd v Lott [2003] QCA 271, the Court held at [19] per Cullinane J: “It is said that His Honour’s first judgment was the result of a deliberate decision and not inadvertence. Given that His Honour’s judgment was based upon a plain misunderstanding of what the position was, I think this meets the language of the slip rule found in Rule 388(1)(b), namely “mistake or error (which) resulted from an accidental slip or omission”. Furthermore I think that the contention of senior counsel for the respondent that the matter falls within Rule 667(2)(d) is also correct. This permits a court to set aside an order if the order does not reflect the court’s intention at the time the order was made. Here it seems clear that His Honour at all times intended that judgment would be entered for the respondent in the sum for which 12 [1999] QSC 203. -- 12 of 13 -- 12 the respondent had made out an entitlement after taking into account the credit and off-sets to which I have referred and was under the mistaken belief that the parties had agreed upon what that entitlement was and for reasons which cannot be now known arrived at the figure for which judgment was first pronounced.” [37] There has been delay in these applications being brought. The argument by the respondent was dismissed in the High Court on 5 April 2016. I have considered whether the applicant has suffered prejudice by that delay. There is no apparent prejudice discernable as he has had the advantage of the enforcement of the Costs Order being delayed. The QCAT Costs Order has always been pressed by the Board and the applicant has resisted its enforcement but he has been aware since the order was made that costs are outstanding as a result of the finding made against him in QCAT. [38] In my view, given that it cannot be said that there is any disadvantage to Mr Broadbent in the order being amended. He has acknowledged in the Federal Court that he was liable to pay the MBQ’s costs of the QCAT proceeding and therefore the Costs Order made by the Registrar should be amended to substitute the MBQ for the MBA. Orders [39] It follows that the application filed by Mr Broadbent is dismissed. There is no basis to set aside the Costs Order completely or to order the repayment of the $140,000.00 already paid. [40] Given that the Board is seeking an indulgence of the Court in relation to the amendment of the Costs Order, there will be no order as to costs. [41] Pursuant to r 388 of the UCPR the Costs Order dated 14 January 2014 is varied to substitute the name of the Medical Board of Queensland in place of the name of the Medical Board of Australia as applicant. -- 13 of 13 --