Chaudhry v Medical Board of Australia [2015] QCAT 414

CITATION: Chaudhry v Medical Board of Australia [2015] QCAT 414 PARTIES: Dr Muhammad Tahir Bashir Chaudhry (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR116-13 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President DELIVERED ON: 13 October 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Medical Board of Australia is to pay the costs of Dr Muhammad Tahir Bashir Chaudhry of and incidental to the review proceedings as agreed or, in the absence of agreement, as assessed on the standard basis for matters in the District Court. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – COSTS – where Medical Board of Australia took immediate action against registrant –– where Registrant sought a review of the Medical Board of Australia’s decision and was successful – where Medical Board of Australia had chance to put best case forward given passage of time – whether registrant should have his costs APPEARANCES and REPRESENTATION (if any): 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). -- 1 of 7 -- 2 REASONS FOR DECISION [1] On 7 May 2014 the Tribunal set aside the Medical Board of Australia’s decision to impose conditions on Dr Muhammad Tahir Bashir Chaudhry’s registration by immediate action. [2] The Tribunal directed the parties to file written submissions as to costs. Dr Chaudhry seeks an order that the Board pay his costs of and incidental to the application. The Board seeks an order that Dr Chaudhary pay its costs of the proceedings until the date Dr Chaudhry’s affidavit was filed, after which the parties bear their own costs. Applicable Law [3] The application to review the decision of the Board was commenced under s 199(1)(e) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). Section 201 of the National Law applies to the determination of costs. It provides the Tribunal with a broad discretion to make any order about costs it considers appropriate.1 [4] Dr Chaudhry, relying on r 681 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’), submits that there is “no conduct on his part that would allow the Tribunal to depart from the general rule that costs follow the event”. The UCPR does not apply to these proceedings.2 Nor has Dr Chaudhry provided any authority in support of the submission that there is a general rule that costs follow the event in health practitioner proceedings before the Tribunal. [5] I do not accept that there is a general rule that costs follow the event in review proceedings such as these. This is reflected in the many decisions in this jurisdiction in which the Tribunal has had to consider whether an order for costs is appropriate in the circumstances of any particular case. Whilst many cases may result in the successful party being awarded costs, this is not always so. Even if it can be demonstrated that there have been common features, other than the ultimate result, in cases in which costs have been awarded in favour of the successful party, that should not be considered as establishing a general rule such that a departure from it would require some special circumstance(s) to be established in a particular case. [6] To read the words “but follow the event, unless the court orders otherwise” as they appear in r.681 of the UCPR, would be to impermissibly fetter the broad discretion conferred upon the Tribunal by s.201 of the National Law. 1 Li v Medical Board of Australia (No 2) [2013] QCAT 594 at [24]. 2 Rule 3(1) of the UCPR. -- 2 of 7 -- 3 Background [7] Dr Chaudhry was wholly successful in his review of the Board’s decision. The background facts of this matter are more fully described in the Tribunal’s reasons for setting aside the Board’s decision.3 [8] On 2 May 2013 Dr Chaudhry filed an application to review the Board’s decision to impose conditions upon his registration. The Board relied on a mandatory notification from Dr Kathryn Heyworth in making that decision. [9] Upon the Board making any decision by way of immediate action it is required to take further appropriate action.4 On 19 July 2013 the Australian Health Practitioner Regulation Agency (‘AHPRA’) notified Dr Chaudhry that the Board had decided to investigate him in accordance with this requirement. [10] Dr Chaudhry responded with correspondence and detailed submissions on 30 August 2013. In that correspondence and those submissions, Dr Chaudhry outlined that: the holding file was not the only means by which medical practitioners could check pathology results; he was using an online portal and paper results to check pathology results; the holding file also contained results from patients treated by Dr Chaudhry at non- Compass practices; the holding file contained pathology results of Dr Chaudhry’s patients from tests ordered by other medical practitioners and he was not required to action these; and there are medical records that confirm that Dr Chaudhry reviewed and actioned all relevant pathology results. [11] These points had been substantially made by Dr Chaudhry in his initial response to the show cause process which he made on 5 April 20135 prior to the Board taking immediate action against him. [12] In the letter to the Board, Dr Chaudhry’s solicitors noted that it would be necessary for Dr Chaudhry to make further submissions at a later stage in the proceedings. [13] The parties faced difficulties in accessing the relevant pathology records because they were held electronically and were only able to be read with a specific computer program. Both parties were finally given access on 15 November 2013. [14] Dr Chaudhry filed his affidavit on 19 February 2014. In the affidavit Dr Chaudhry gave evidence regarding: the business arrangements between Dr David Heyworth-Smith (the owner of Compass) and Dr Chaudhry; 3 Chaudhry v Medical Board of Australia (No 2) [2014] QCAT 288. 4 Section 158(1)(b) of the National Law. 5 Pages 95 to 102 of the material considered by the Board annexed to its Statement of Reasons filed 14 June 2013, particularly paragraphs 1 to 7 on page 97 under the heading The matter of pathology results in the “holding file” at Compass immunology computer server. -- 3 of 7 -- 4 interactions between Dr Heyworth6 and Dr Chaudhry; Compass’s use of the Medical Director software; Dr Chaudhry’s holding file in Medical Director; the methods Dr Chaudhry used to check his patient’s pathology results including using online portals of private pathology companies; the pathology results in Medical Director comprising both Compass and non- Compass patients; complaints made against Dr Chaudhry and how he treated those patients; Dr Heyworth’s analysis of pathology reports for some of Dr Chaudhry’s patients; and the effect of the Board’s decision on Dr Chaudhry. The affidavit contained substantially more detail regarding the issues before the Tribunal than the earlier submissions. This evidence was mostly accepted by the Tribunal in reaching its decision. [15] In the Tribunal’s reasons it was noted that, in the circumstances of this case, where over a year had passed between the taking of immediate action and the date of hearing, the Tribunal ought proceed on the basis that the Board had the opportunity to put its best case forward for establishing that a reasonable belief should be formed that the registrant posed a serious risk to persons.7 [16] In deciding to set aside the Board’s decision, the Tribunal found that Dr Heyworth’s concerns, and hence the Board’s concerns, regarding Dr Chaudhry’s conduct were based on a mistaken belief.8 Dr Heyworth, in giving her evidence, conceded that Dr Chaudhry was in a better position to comment on the care and treatment of his patients and their pathology results. Upon accepting such a concession the Tribunal accepted the evidence of Dr Chaudhry in regards to his treatment and conduct towards his patients. Submissions and Consideration [17] The Board, relying on ss 3(2)(a) and 156 of the National Law, submits that it had a statutory duty to respond to the mandatory notification. The Board decided to act under s 156 of the National Law to impose conditions after it had formed a reasonable belief of a serious risk to persons. [18] Dr Chaudhry concedes that, at the time the immediate action was taken, the Board had a reasonable belief that the imposition of conditions was necessary to protect the public. However, he submits that such a decision is irrelevant to the issue of costs. [19] Rather, Dr Chaudhry submits that the Board’s action, or inaction, since the decision was made is relevant to the award of costs. Dr Chaudhry specifically refers to the requirement that the Board take further action that it considers appropriate under s 158(1)(b) of the National Law. Dr Chaudhry contends that it is unclear what investigations, if any, the Board took to progress the proceedings. He submits that there is no evidence of an investigation before the Tribunal. Dr Chaudhry submits that, had the 6 The wife of Dr Heyworth-Smith. 7 Chaudhry v Medical Board of Australia (No 2) [2014] QCAT 288 at [17]-[18]. 8 Ibid at [19]-[20]. -- 4 of 7 -- 5 Board commenced a full investigation, issues regarding the production of evidence would not have arisen. [20] The Board submits that its reasonable belief that Dr Chaudhry was a serious risk could only have been displaced9 by the evidence provided in Dr Chaudhry’s affidavit. I do not accept that submission. In my view, the Board’s belief, reasonable enough at the time at which it took the immediate action, could have been demonstrated to have been misplaced by a diligent investigation of the matters raised by Dr Chaudhry in his response in April 2013 and his submissions of August 2013. Much of what Dr Chaudhry then asserted, and what has now been accepted by the Tribunal, could have been verified by enquiries made of third persons for example the referring general practitioners’ documents available to the Board, other than the computer records, also alleged concerns expressed by Dr Heywarth as to referring GP’s not being informed of pathology results for their patients. The Board had investigative powers which it was obliged to, and which it undertook to, exercise. It did not have to wait until Dr Chaudhry’s affidavit was filed before the earlier belief it had formed could be displaced or be seen to be misplaced. [21] The Board submits that in imposing conditions it acted in good faith and in accordance with its statutory functions. [22] The conditions imposed on Dr Chaudhry’s registration, it submits, were not professionally or financially onerous. That submission seems inconsistent with the evidence.10 However, any such effects are not directly relevant to the issue of costs. In all proceedings in which an order for costs is made, its purpose “is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made”.11 They are relevant, however, to the extent that they demonstrate the need for Dr Chaudhry to bring the review proceedings in order to have the conditions on his registration removed. [23] The Board also notes that it assisted Dr Chaudhry and the Tribunal in these proceedings by: providing the records on a laptop at its own considerable expense; not resisting Dr Chaudhry’s applications regarding the evidence; and not objecting to Dr Chaudhry’s solicitors’ conduct in requesting the vacation of directions hearings. [24] The Board also submits that the Tribunal, in assessing costs, should take into account that the Board is funded by members of the profession and 9 The Board’s submissions actually say “misplaced” but it seems that it should either be “displaced” or “seen to be misplaced”. 10 At paragraph 124 of his affidavit Dr Chaudhry deposes to his inability to expand his practice to North Queensland as he had planned, the refusal of accreditation at two private hospitals and a medical clinic and a significant decline in his earnings because of the conditions. 11 Ohn v Walton [1995] 36 NSWLR 77 at 79 per Gleeson CJ; Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ, 562 – 563 per Toohey J and 566 – 567 per McHugh J. [2007] 3 All ER 330. -- 5 of 7 -- 6 those members of good standing should not have to bear the burden arising from inappropriate conduct. [25] Dr Chaudhry submits that public interest considerations usually made in opposition to a costs order against the Board have no application in this matter. Dr Chaudhry does not take the submission any further than that. [26] In Nursing and Midwifery Board of Australia v Clydesdale, on which the Board relies, the Tribunal noted that there is considerable merit to the submission regarding the Board’s funds.12 However, this case can be distinguished from Clydesdale. That was a disciplinary proceeding referred to the Tribunal in which the registrant was found to have behaved in a way that constituted unsatisfactory professional conduct. Dr Chaudhry does not face such a charge; nor has it been found that his conduct or performance poses a serious risk to persons. [27] The Board submits: “The circumstances are such that the extraordinary time period from Application to Hearing, and the nature of the hearing de novo has meant that the Respondent is now put to a somewhat higher test (actual conduct) in relation to reasonable belief than the requirements envisaged by the legislation. It is submitted that it is not clear when and in what manner the reasonable belief of a risk to public health and safety test, changes to a requirement that there be evidence of the actual conduct that is the subject of the reasonable belief. … The respondent proceeded on the basis that a mere reasonable belief that there was a risk to persons and that it was necessary to take immediate action to protect public health and safety was adequate to resist the review.”13 [28] These submissions misunderstand the nature of the proceedings and the findings made by the Tribunal. [29] The Tribunal’s findings, as referred to in paragraph [15] above, were not that the Board had to establish actual conduct on the part of Dr Chaudhry. As the Tribunal said at paragraph [16] of its substantive decision, the primary issue was whether, on the evidence before it, the Tribunal believed that Dr Chaudhry, because of his conduct or performance, posed a serious risk to persons. The Tribunal did not change the legislative test. It then proceeded on the basis that given the passage of time and the Board’s powers of investigation, the Board had had the opportunity to put its best case forward for establishing that the Tribunal should form that belief. This was to be contrasted with some cases of immediate action in which the Tribunal’s review is conducted on short notice or on an urgent 12 [2013] QCAT 191 at [70] (‘Clydesdale’). 13 Submissions as to costs on behalf of the Respondent, paragraphs 26, 27 and 30. -- 6 of 7 -- 7 basis. In such cases the quality of the evidentiary material, quite understandably, may not be of the same quality as that upon which the Tribunal would ordinarily make findings against the interest of a practitioner. [30] The Board’s submissions suggest that all that is relevant in the review proceedings is the reasonableness of the Board’s view at the time it was formed on the basis of the material before it. That is not the nature of the review.14 Merely establishing that a Board’s view was reasonably formed at the time will not, of itself, necessarily preclude a costs order being made against it. [31] In my view, this is an appropriate matter in which Dr Chaudhry should have his costs. He has been completely successful on the review. He has established the matters which he asserted essentially from the time of his initial response to the show cause process prior to the Board taking immediate action. Those matters were ascertainable by the Board. The Board did not merely take a passive role in responding to the review application. [32] The Medical Board of Australia will be ordered to pay the costs of Dr Chaudhry of and incidental to the review proceedings as agreed or, in the absence of agreement, as assessed on the standard basis for matters in the District Court. 14 Pearse v Medical Board of Queensland [2013] QCAT 392. -- 7 of 7 --