Colagrande v Health Ombudsman (No 2) [2017] QCAT 406

CITATION: Colagrande v Health Ombudsman (No 2) [2017] QCAT 406 PARTIES: Cesidio Colagrande (Applicant) V Health Ombudsman (Respondent) APPLICATION NUMBER: OCR047-17 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge S Sheridan, Deputy President DELIVERED ON: 30 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. For the period up to and including 10 April 2017, no order as to costs. 2. For the period from 10 April 2017, the Health Ombudsman pay Dr Colagrande’s costs of the proceedings on a standard basis as agreed or, in default of agreement, as assessed on the District Court scale. 3. The costs shall be assessed by an assessor to be agreed by the parties and in default of agreement appointed by the Tribunal. 4. The Health Ombudsman shall pay the costs (as agreed or as assessed) within 28 days of receipt of such agreement or assessment. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where the Health Ombudsman took immediate action in relation to the practitioner – where the -- 1 of 7 -- 2 immediate action imposed a condition on the practitioner’s registration that the practitioner must not have contact with female patients – where the practitioner sought a review of the immediate action decision – where the Tribunal set aside the decision of the Health Ombudsman – where the Tribunal imposed conditions on the practitioner’s registration – where the Tribunal substantially adopted the position proposed by the practitioner just prior to hearing – where the parties were subsequently requested to make submissions on costs – whether the interests of justice require the Tribunal to make an order as to costs Health Ombudsman Act 2013 (Qld), s 59(4), s 63 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102 Ralacom Pty Ltd v Body Corporate for Paradise Apartments (No 2) [2010] QCAT 412, cited Health Ombudsman v Antley [2016] QCAT 472, cited Tamawood Ltd & Anor v Paans [2005] QCA 111, cited Medical Board of Australia v Wong [2017] QCA 42, cited REPRESENTATIVES: APPLICANT: represented by Ashurst RESPONDENT: G R Rice QC, instructed by the Health Ombudsman APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 2 of 7 -- 3 REASONS FOR DECISION: BACKGROUND [1] The Tribunal gave its decision in the matter on 18 and 21 April 2017.1 At the time of making its decision, the Tribunal requested the parties to make written submissions on the question of costs. [2] On behalf of Dr Colagrande, it is submitted that the Health Ombudsman should be ordered to pay his costs of the proceeding. On behalf of the Health Ombudsman, it was submitted there should be no order as to costs, or in the alternative if the Tribunal was minded to make an order as to costs, such order should be limited to costs incurred from 10 April 2017. APPLICABLE LAW [3] In the substantive proceedings, pursuant to s 63 of the Health Ombudsman Act 2013 (Qld) (Health Ombudsman Act), Dr Colagrande sought to review the decision of the Health Ombudsman to take immediate action under s 59(4) of the Health Ombudsman Act. The action taken was to impose a condition prohibiting Dr Colagrande from seeing female patients. [4] The Health Ombudsman Act is silent on the question of costs, leaving the question of costs to be determined pursuant to the provisions of the QCAT Act. [5] Pursuant to the QCAT Act, the Tribunal can only make a costs order against a party “if the Tribunal considers the interests of justice require it to make the order”.2 [6] The question the Tribunal should have regard to when considering whether to make a costs order was formulated by former QCAT President Justice Wilson as: [W]hether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.3 [7] The question has also been framed as to whether there are “countervailing considerations”.4 In the Court of Appeal decision of Medical Board of 1 Colagrande v Health Ombudsman [2017] QCAT 107. 2 QCAT Act, s 102(1) 3 Ralacom Pty Ltd v Body Corporate for Paradise Apartments (No 2) [2010] QCAT 412, [29]. 4 Judicial Member the Honourable James Thomas AM QC in Health Ombudsman v Antley [2016] QCAT 472, [60]-[61], referring with approval to Keane JA in Tamawood Ltd & Anor v Paans [2005] QCA 111, [30]. -- 3 of 7 -- 4 Australia v Wong,5 it was said the question for the Tribunal is whether there is a basis for departing from the default position. [8] Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters it may have regard to in considering whether the interests of justice require a costs order. The discretion given is a broad one and extends to “anything else the tribunal considers relevant”.6 [9] The particular matters listed include conduct unnecessarily causing disadvantage to another party, the nature and complexity of the dispute, the relative strengths of the parties’ claims, attempts made by the applicant to enable and help the decision maker and the parties’ financial circumstances. ANALYSIS [10] In the present case, following his conviction of sexual assault, Dr Colagrande proposed that chaperone conditions be placed on his registration. The decision of the Health Ombudsman was that chaperone conditions were insufficient to mitigate the risk to public health and safety. Pursuant to the powers under s 59 of the Health Ombudsman Act, in determining to take immediate action, the Health Ombudsman imposed a prohibition on Dr Colagrande seeing female patients. [11] In the proceedings, Dr Colagrande did not dispute that immediate action could be taken. The issue was what action was necessary. [12] At the hearing, the position of the Health Ombudsman was that, given the practitioner’s history of dishonest conduct, the use of a chaperone in seeing female patients would not be sufficiently effective. In particular, the Health Ombudsman referred to the falsification of information in Dr Colagrande’s CV in applying for a job and forging his GMC certificate some 13 years ago, his criminal conviction in circumstances where he had given evidence in those proceedings, issues as to the accuracy of his electronic medical records and actions he took following the notification of the immediate action. [13] In making its findings, the Tribunal commented that it was difficult to put too much weight on events which occurred some 13 years ago. In terms of the conviction, the Tribunal concluded there was no basis to extend the conviction to any assessment of the practitioner’s general honesty. Further, in terms of the other issues, in giving its decision the Tribunal commented that it was not asked to make factual findings but, in any event, it was not satisfied the evidence allowed for a conclusion as to a lack of honesty. [14] Likewise, the Tribunal did not accept that it was constrained by the recommendations contained in the review commissioned by AHPRA and 5 [2017] QCA 42. 6 QCAT Act, s 102(3)(f). -- 4 of 7 -- 5 the Medical Board of Australia of the use of chaperones to protect patients in Australia, without having regard to the merits of the case. [15] In making submissions on behalf of Dr Colagrande, it was not suggested that his success on review was a sufficient basis for the making of a costs order. Rather, reference was made to the conduct of the Health Ombudsman in failing to consider the merits of the matter in making its original decision and thereafter in taking an unnecessary litigious approach. [16] On behalf of Dr Colagrande, reference was made to the detailed submissions contained in the letter dated 23 February 2017, which was made in response to the notification of immediate action from the Health Ombudsman dated 17 February 2017. The position taken on his behalf, consistent with the approach taken following his conviction, was that he could continue to see female patients in the presence of a chaperone. [17] By letter sent the same day, the Health Ombudsman made it clear he would not enter into any negotiation regarding the imposition of any chaperone conditions. The letter stated, I do not consider you to be a suitable candidate for chaperone conditions, taking into account your history of misleading and deceptive conduct. [18] It was following that response that Dr Colagrande filed his application for review. Notwithstanding the filing of the application, by further letter dated 1 March 2017, the Health Ombudsman provided a formal response to the submissions contained in the letter of 23 February 2017. The Health Ombudsman confirmed that Dr Colagrande had “demonstrated a history of being a dishonest person” and “he was not satisfied he would honour chaperone requirements.” [19] Given the effect of the conditions which had been imposed by the Health Ombudsman, following the filing of the application, the matter was set down for an urgent Directions Hearing on 3 March 2017 and the Tribunal worked with the parties to agree to a truncated timetable. The timetable allowed the application to be set down for hearing on 11 April 2017. [20] Compliance with the timetable required a degree of co-operation between the parties. The submissions filed on behalf of Dr Colagrande suggests some issues arose between the parties in the preparation of the matter for hearing which, it was submitted, resulted in the copying of thousands of pages of the respondent’s material, thereby unnecessarily increasing costs. The Health Ombudsman disputed the construction of events put on behalf of Dr Colagrande. On the evidence before it, the Tribunal is not satisfied that that conduct about which Dr Colagrande complains is sufficient to amount to a countervailing factor justifying an order for costs in his favour. [21] Of more relevance, however, is the attitude which appears to have been displayed throughout by the Health Ombudsman to any proposal -- 5 of 7 -- 6 regarding the possible use of chaperones. In the submissions on costs, on behalf of Dr Colagrande it was said that, had the Health Ombudsman been “more open to consideration of appropriate chaperone conditions and had regard to the merits of the review, litigation would not have been necessary or as drawn out.” [22] The affidavit evidence filed on behalf of Dr Colagrande on 17 March 2017 confirmed the details of the chaperone conditions proposed by him. Those whom it was proposed would act as chaperones filed affidavits. [23] On Friday, 7 April 2017, following discussions between counsel, an affidavit was filed by the Business Development Manager of Carestaff Nursing Services Pty Ltd annexing an executed Terms of Business agreement between Dr Colagrande and Carestaff. The terms detailed the basis upon which Carestaff would provide independent nursing staff to Dr Colagrande to act as chaperones. This evidence did not change the position of the Health Ombudsman. [24] The matter proceeded to be argued before the Tribunal on 11 April 2017 and subsequently on 20 April 2017. [25] On 18 April 2017 the Tribunal gave its decision, which included draft chaperone conditions substantially adopting the position proposed on behalf of Dr Colagrande just before the hearing. Of particular importance was the most recent proposal that the chaperones would not be employed by Dr Colagrande. [26] In giving its decision on 18 April 2017, the Tribunal gave the parties an opportunity to make oral submissions on the draft conditions. The Tribunal was reconvened on 20 April 2017 for that purpose. [27] Unfortunately, as submitted on behalf of Dr Colagrande, the submissions made on behalf of the Health Ombudsman at that hearing essentially sought to re-litigate the substantive matter, with particular reliance placed upon the review of the use of chaperones. The attitude of the Health Ombudsman towards the draft conditions proposed by the Tribunal and the unnecessary presentation of an entirely new set of conditions would seem to be indicative of the uncompromising and litigious approach of the Health Ombudsman to the whole matter. [28] As is apparent from the decision of the Tribunal, the initial conditions proposed by Dr Colagrande on 23 February 2017 did not go far enough towards protecting the public. Ultimately, however, a proposal was forthcoming at the latest on the day before the hearing, which was substantially accepted by the Tribunal and were probably conditions which, if the Health Ombudsman had been willing to discuss the matter, could have resulted in an agreed position. That much appears to be recognised in the submissions as to costs made on behalf of the Health Ombudsman where it is said, -- 6 of 7 -- 7 Consequently, the application would have continued to be litigated on the same material, and the costs incurred, up until the point where there was a reasonable basis for its compromise. Accepting that the tribunal’s decision and conditions were at least founded in the second proposal, there was no proper basis for potential compromise of the proceeding until, at the earliest, the day prior to the hearing. [29] As submitted on behalf of Dr Colagrande, the Health Ombudsman was not prepared to consider the case on its merits but rather the attitude adopted was a blind refusal to contemplate the use of chaperones. It was submitted that it was that attitude which necessitated the initial bringing of the review proceedings by Dr Colagrande and the continuance of those proceedings. [30] It might be going too far, however, to suppose that no proceedings would have been necessary if the Health Ombudsman had been willing to engage in sensible discussions about the use of chaperones. Dr Colagrande did not propose the use of independent chaperones until the eve of the hearing and the inference is that it took him until that time for the realities of the situation to become clear to him. It is unfortunate that the same reality was not adopted by the Health Ombudsman by that time. [31] The report upon which the Health Ombudsman appeared to rely, particularly at the re-convened hearing on 20 April 2017, may well have fuelled his attitude throughout. As noted in its decision, however, the Tribunal cannot, just as the Health Ombudsman cannot, approach its task by simply adopting the recommendations contained in such a report without regard to the merits of the case. CONCLUSION [32] In the circumstances, it is that conduct by the Health Ombudsman which amounts to a sufficient countervailing factor to warrant a departure from the default position. It is in the interests of justice to make an order that the Health Ombudsman pay the costs of Dr Colagrande of the proceedings from 10 April 2017, the day before the first substantive hearing in the matter. -- 7 of 7 --