De Villiers v Medical Board of Australia (No 2) [2021] QCAT 92

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: De Villiers v Medical Board of Australia (No 2) [2021] QCAT 92 PARTIES: ROBERT ARTHUR D’HOTMAN DE VILLIERS (applicant) v MEDICAL BOARD OF AUSTRALIA (respondent) APPLICATION NO/S: OCR347-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 25 March 2021 HEARING DATE: 28 April 2020 HEARD AT: Brisbane DECISION OF: Judge Allen QC, Deputy President ORDERS: Each party will bear the party’s own costs of the proceeding. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – where the Board decided to take immediate action and impose conditions on the applicant’s registration – where the applicant sought a review of the Board’s decision to impose conditions on his registration – where the Tribunal varied the conditions – where the health practitioner seeks an order for costs – whether the interests of justice require an order for costs Health Practitioner Regulation National Law (Queensland), s 156 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 100, s 102 De Villiers v Medical Board of Australia [2020] QCAT 269 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77 Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Medical Board of Australia v Wong [2017] QCA 42 -- 1 of 6 -- 2 Shahinper v Psychology Board of Australia [2013] QCAT 593 Zaphir v Health Ombudsman [2017] QCAT 193 APPEARANCES & REPRESENTATION: Applicant: G W Diehm QC, instructed by Avant Law Respondent: M Lucey, of Clayton Utz REASONS FOR DECISION Introduction The applicant applied for a review of the decision of the respondent, the Medical Board of Australia (Board), to take immediate action, pursuant to section 156 of the Health Practitioner Regulation National Law (Queensland) (National Law) and impose conditions on his registration. Following a hearing on 28 April 2020, the Tribunal delivered ex tempore reasons and made an order amending the conditions on the applicant’s registration. The applicant then applied for an order for costs. The Tribunal heard submissions from both parties before reserving its decision on costs. These are the reasons for the Tribunal refusing the applicant’s application for costs. They should be read in conjunction with the Tribunal’s reasons for the substantive decision.1 Legislation The following provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) require consideration: 48 Dismissing, striking out or deciding if party causing disadvantage (1) This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by – (a) not complying with a tribunal order or direction without reasonable excuse; or (b) not complying with this Act, an enabling Act or the rules; or (c) asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or (d) causing an adjournment; or (e) attempting to deceive another party or the tribunal; or (f) vexatiously conducting the proceeding; or 1 De Villiers v Medical Board of Australia [2020] QCAT 26. -- 2 of 6 -- 3 (g) failing to attend conciliation, mediation or the hearing of the proceeding without reasonable excuse. (2) The tribunal may – … (c) make an order under section 102, against the party causing the disadvantage, to compensate another party for any reasonable costs incurred unnecessarily. …. (3) In acting under subsection (2), the tribunal must have regard to the following – (a) the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures; (b) the capacity of the party causing the disadvantage to understand, and act on, the tribunal’s orders and directions; (c) whether the party causing the disadvantage is acting deliberately. … 100 Each party usually bears own costs Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding. … 102 Costs against party in interests of justice (1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order. (2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section. (3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following – (a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g); (b) the nature and complexity of the dispute the subject of the proceeding; (c) the relative strengths of the claims made by each of the parties to the proceeding; (d) for a proceeding for the review of a reviewable decision – (i) whether the applicant was afforded natural justice by the decision-maker for the decision; and -- 3 of 6 -- 4 (ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits; (e) the financial circumstances of the parties to the proceeding; (f) anything else the tribunal considers relevant. Section 100 of the QCAT Act states the prima facie position that each party, whatever the outcome of proceedings, will bear their own costs of the proceedings. That prima facie position is subject to the exercise of the discretion of the Tribunal, pursuant to section 102 of the QCAT Act, to order otherwise if the Tribunal “considers the interests of justice require it to make the order”. As to the factors relevant to the exercise of that discretion specified in section 102(3) of the QCAT Act: The factors listed in s 102 are a guide to the considerations the Tribunal may take into account in deciding whether this is an appropriate case in which to award costs. In any given case, the relative importance of each criterion will vary. Further, their significance may relate to what stage the proceedings have reached. For example, questions about the relative strengths of the parties’ cases may assume less significance upon an initial hearing, yet loom large when it comes to the costs of an application for leave to appeal.2 These factors, individually and collectively, are not determinative, and go only to informing the exercise of a broad discretion, the touchstone of which remains the Tribunal’s assessment of the interests of justice in a particular case. The discretion to award costs will only be exercised when the interests of justice in a particular case outweigh the prima facie “no costs” position under s 100.3 In the context of disciplinary proceedings, other relevant factors may include a legislative obligation upon a regulatory authority to take certain action4 and the parties’ entitlement to legal representation.5 Applicant’s submissions The applicant acknowledged the terms of section 100 of the QCAT Act but submitted that the interests of justice required the Tribunal to make an order that the Board pay the applicant’s costs of the proceeding to be assessed on the standard basis in accordance with the District Court scale. The conditions originally imposed on the applicant’s registration by the Board, prohibiting him from undertaking any surgical procedures, were grossly excessive to meet any concerns as to the applicant’s competence. Such was demonstrated by the Board’s subsequent change of position and the terms of the amended conditions decided by the Tribunal. It was inevitable that the applicant would seek a review of such decision by the Board. 2 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77 at [10] per Deputy President Kingham DCJ. 3 Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327 at [7] per Daubney J, President. 4 Medical Board of Australia v Wong [2017] QCA 42. 5 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 at [37] per Judicial Member D J McGill SC. -- 4 of 6 -- 5 The Board made its decision without the benefit of independent expert opinion and did not obtain an expert opinion prior to the compulsory conference, depriving the parties of a real opportunity to engage in meaningful discussion with a view of settling the matter. The Board only sought an expert opinion very late in the conduct of the proceeding, despite having had a copy of the expert report obtained by the applicant for several months. Even at that time, the Board failed to properly brief the expert, so the expert report obtained was in terms that did not serve to permit a settlement of proceedings before hearing. The Board failed to have a representative of the Board with authority to settle the matter attend the compulsory conference so as to permit a settlement of the matter at that conference. From the time of the original decision and through the conduct of the proceedings, the Board’s unacceptable behaviour resulted in the need for the proceedings and protracted the proceedings, denying the parties an opportunity to resolve the dispute at an earlier time without the necessity for a hearing. Respondent’s submissions The Board submitted that there was no reason to depart from the default position pursuant to section 100 of the QCAT Act. At the compulsory conference on 27 February 2020, the Board was represented by solicitors and a representative of the Australian Health Practitioners Regulation Agency. Instructions could have been obtained from the Board, if need be, to resolve the matter and the absence of someone from the Board was immaterial. The fact was the parties could not reach agreement as to terms of conditions. The Board complied with Tribunal directions to expedite a hearing. An expert report was not obtained by the Board earlier because the Board intended to rely on its own expertise. The Board disputed that their expert was not properly briefed and submitted that, once briefed, a report was obtained promptly. Both parties had mixed success in the terms of conditions decided by the Tribunal. Circumstances did not justify a costs order. Consideration In this proceeding, the applicant did not contend that the Board should not have decided to take immediate registration action. The applicant did not dispute the Board’s formation of a reasonable belief of the need to take immediate registration action pursuant to section 156 of the National Law. The criticism of the Board’s decision was its breadth. It is true that the conditions originally imposed by the Board went well beyond what was required to address concerns as to the applicant’s competence. That is evident from the terms of the decision of the Tribunal in the substantive proceeding. Conditions imposed pursuant -- 5 of 6 -- 6 to section 156 of the National Law ought to address relevant risks specifically and be the least onerous possible to properly address such risks.6 However, the nature of immediate registration action must be recognised. It is interim in nature and does not require a detailed enquiry by the Board. It involves action on an urgent basis because of the need to protect the public.7 The Board did not have the benefit of the expert evidence pivotal to the decision of the Tribunal. The Board could not be expected to make a decision with the finesse of a tribunal assisted by expert evidence and the advice of professional assessors. Nevertheless, it may have been able to fashion terms less restrictive than it imposed even without those benefits. The unnecessary breadth of the conditions imposed by the Board is a factor weighing in favour of a costs order against the Board. On the other hand, even if less restrictive conditions were originally imposed, it is most unlikely they would have been to the satisfaction of the applicant. Even with the benefit of expert evidence, the parties could not reach complete agreement as to the terms of conditions and required a determination by the Tribunal. It is quite likely that an application would have been made to review less restrictive conditions determined by the Board. Whilst there is force to the applicant’s submissions that the Board should have obtained expert evidence at an earlier time, at least at a time prior to the compulsory conference, the fact remains that, even with the benefit of expert reports and a joint report following a conclave of experts, the parties could not reach complete agreement as to the terms of conditions. That detracts from the force of the submission by the applicant that the delay in obtaining expert opinion unnecessarily protracted proceedings. The Board did comply with directions of the Tribunal that facilitated an expeditious hearing. I do not find that the Board acted in a way that caused unnecessary disadvantage to the applicant within the terms of section 48 of the QCAT Act. The parties enjoyed mixed success with respect to their arguments at the hearing. Having regard to all the considerations in section 102(3) of the QCAT Act, I do not consider that the interests of justice require departure from the default position pursuant to section 100 of the QCAT Act. The application for a costs order is refused and the order of the Tribunal will confirm that the default position applies. 6 Shahinper v Psychology Board of Australia [2013] QCAT 593 at [22]-[23]. 7 Zaphir v Health Ombudsman [2017] QCAT 193 at [14]-[15]. -- 6 of 6 --