Broadbent v Medical Board of Australia (No.2) [2018] QCAT 408

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Broadbent v Medical Board of Australia (No.2) [2018] QCAT 408 PARTIES: MICHAEL RUSSELL MARK BROADBENT (Applicant) V MEDICAL BOARD OF AUSTRALIA (Respondent) FILE NO/S: APL 314-14 DIVISION: Occupational Regulation Matters DELIVERED ON: 14 December 2018 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Decision of Judge A A J Horneman-Wren SC ORDER: 1. Michael Russell Mark Broadbent is to pay the costs of the Medical Board of Australia on an indemnity basis on the District Court scale. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – REFUSAL OF REGISTRATION – APPLICATION FOR REVIEW – COSTS – where the Tribunal determined that the applicant’s substantive application was vexatious and an abuse of process – where written offers to settle were extended to the applicant prior to the Tribunal’s determination – where the decision of the Tribunal was not more favourable to the applicant than the offers of settlement – whether in these circumstances the respondent should receive an award of costs on an indemnity basis. APPEARANCES & REPRESENTATION: APPLICANT: RESPONDENT: Mr Broadbent (on his own behalf) Ms C T Houston of Moray and Agnew Solicitors [1] The Tribunal struck out, pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009, Mr Broadbent’s application for a review of a decision of the Medical Board of Australia to refuse him registration as a medical practitioner. The Tribunal considered that the application was both an abuse of process and vexatious. The Tribunal considered the application to be so because it was brought for the -- 1 of 5 -- 2 predominant purpose of re-litigating issues concerning earlier disciplinary proceedings and was thus a collateral attack on decisions of both the Tribunal and the Court of Appeal. [2] The Medical Board of Australia seeks its costs, on an indemnity basis, in respect of the proceedings. Mr Broadbent submits that each party should bear their own costs. [3] In his costs submissions, Mr Broadbent “denies” that his appeal can be categorised or construed as vexatious. He submits that he was “provoked” into appealing the Board’s decision to the Tribunal by the Board’s own conduct. In short form, Mr Broadbent in his costs submissions again advances matters which were rejected by the Tribunal in the substantive decision, the attempted re-litigation of which was considered by the Tribunal to give rise to the abuse of process and the vexatious proceedings which it found them to be. [4] Section 47(2)(c) of the QCAT Act provides that having struck out a proceeding the Tribunal may make a costs order against the party who brought the proceeding to compensate another party for “any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding”. Section 100 of the QCAT Act prescribes the usual position in respect of proceedings under the QCAT Act is that each party to the proceeding must bear their own costs. That usual position, however, is subject to the proviso of “other than as provided under this Act”. Section 47(2)(c) is an express provision under the Act which enables costs to be awarded notwithstanding the usual position otherwise established under s 100. [5] Section 105 provides: “The rules may authorise the Tribunal to award costs in other circumstances, including, for example, the payment of costs in a proceeding if an offer to settle the dispute the subject of the proceeding has been made but not accepted.” [6] Section 107(1) provides that if the Tribunal makes a costs order under the Act1 it must fix the costs if possible. Section 107(2) provides that if it is not possible to fix the costs having regard to the nature of the proceeding, the Tribunal may make an order requiring the costs be assessed under the rules. Section 107(3) prescribes that the 1 Which would include under s47. -- 2 of 5 -- 3 rules may provide that costs must be assessed by reference to a scale under the rules applying to a court. [7] Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 provides: “(1) This rule applies if— (a) a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and (b) the other party does not accept the offer within the time the offer is open; and (c) in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer. (2) The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made. (3) If a proceeding involves more than 2 parties, this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties. (4) In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must— (a) take into account any costs it would have awarded on the date the offer was given to the other party; and (b) disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.” [8] Rule 87 provides relevantly: “(1) This rule provides for how costs are to be assessed under section 107 of the Act if the tribunal makes a costs order that requires the costs be assessed under the rules. (2) The costs must be assessed— (a) by an assessor appointed by the tribunal; and (b) if the tribunal directs the costs be assessed by reference to the scale of costs applying to a court—by reference to the scale of costs directed by the tribunal” [9] Each of ss 105 and 107 and rules 85, 86 and 87, may apply to a proceeding struck out under s 47 of the Act. [10] The board submits that the reference to “reasonable costs” in s 47(2)(c) of the Act does not preclude the Tribunal from ordering costs on an indemnity basis. That submission should be accepted. Whilst neither s 47(2)(c) nor any other provision of the Act expressly refers to indemnity costs, that the Tribunal may order one party to pay any reasonable costs should be construed to extend to costs on an indemnity basis. In my view, “any reasonable costs” may extend to “all reasonable costs”. The latter -- 3 of 5 -- 4 is the expression used in r 86(2) which although not in terms a provision relating to indemnity costs, does have that effect. Some further support for that construction of s47(2)(c) is to be found in r 703(3) of the Uniform Civil Procedure Rules 1999 which provides that when assessing costs on an indemnity basis a costs assessor “must allow all costs reasonably incurred and of a reasonable amount” having regard to certain matters. [11] In my view, given the Tribunal’s reasons for concluding that Mr Broadbent’s application for review was both an abuse of process and vexatious, this is an appropriate case in which to order that he pay the Board’s costs on an indemnity basis. It will not always be the case that it is appropriate to award costs on an indemnity basis when a matter is struck out pursuant to s 47 of the QCAT Act. However, the Tribunal’s substantive reasons demonstrate that Mr Broadbent’s attempts to re- litigate earlier matters which had been resolved in decisions of both the Tribunal and the Court of Appeal, were such an abuse of process and so vexatious as to warrant an indemnity costs order in this matter. [12] There is a further reason why indemnity costs ought be awarded pursuant to s 105 and r 86. The Australian Health Practitioner Regulation Agency wrote to Mr Broadbent on 1 September 20142 inviting him to reconsider whether it was appropriate to proceed with his application for review. It informed him that if he withdrew his application prior to the then forthcoming directions hearing the Board would not seek any other orders in respect of the matter. It informed him that should the matter proceed to hearing the Board would rely upon that letter on the issue of costs. The reasons which AHPRA identified as the basis for inviting Mr Broadbent to withdraw his application reflect, in large part, the reasons ultimately expressed by the Tribunal for striking out the proceeding. [13] Similarly, on 6 March 2015 the solicitors for the Board again wrote to Mr Broadbent’s then lawyers.3 In that letter the Board’s solicitors asserted that Mr Broadbent’s application for review was liable to be struck out and once again invited him to withdraw his application. Again, the right to rely upon the letter on the issue of costs was reserved. Again, the reasons identified for striking out the application broadly reflect the Tribunal’s reasons for ultimately doing so. 2 Exhibit Cth 1 to the affidavit of Christine Thelma Houston filed 2 March 2018. 3 Exhibit Cth 2 to the affidavit of Ms Houston. -- 4 of 5 -- 5 [14] The response to that correspondence from Mr Broadbent’s lawyers was to request that the Board withdraw its application to strike out the proceedings allowing the matter to proceed to a full hearing of the review application.4 [15] In my opinion, the decision of the Tribunal in the proceeding was not more favourable to Mr Broadbent than the offer made in both the letter of AHPRA and that of the Board’s solicitors. [16] In all the circumstances, the appropriate order is that Mr Broadbent pay all the reasonable costs of the Medical Board of Australian of and incidental to the proceeding as assessed on an indemnity basis by reference to the scale of costs applying to the District Court. 4 Letter from Hawkes Lawyers dated 9 March 2015; exhibit cth 3 to Ms Houston’s affidavit. -- 5 of 5 --