Dey v Medical Board of Australia [2014] QCAT 546

CITATION: Dey v Medical Board of Australia [2014] QCAT 546 PARTIES: Dr Rabindra Nath Dey (Applicant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: OCR326-10 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President DELIVERED ON: 31 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The applicant is to pay the respondent’s costs of and incidental to the proceedings on the standard basis on the District Court Scale. CATCHWORDS: PROCEDURE – COSTS – JURISDICTION – OTHER CASES – where the applicant brought an application to review the decision of the respondent to refuse to renew the applicant’s limited registration – where the applicant sought registration via a different pathway – where the applicant withdrew his application – whether the applicant should pay the respondent’s costs of the proceeding Health Practitioner Regulation National Law (Queensland), s 201 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 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 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] On 20 December 2010 Dr Rabindra Dey applied for review of the Board’s decision to refuse his application for renewal of limited registration. In refusing Dr Dey’s application for renewal of registration the Board raised concerns about Dr Dey’s competence and safe practice, on the basis he had, on a number of occasions, failed RACGP examinations. [2] On 5 April 2011 Dr Dey applied for a stay of the Board’s decision. In the application for a stay the Board provided to the Tribunal evidence of complaints made against Dr Dey, which at the time, were being investigated by the Australian Health Practitioner Regulation Agency (‘AHPRA’). The then Deputy President, Judge Kingham, considered that although Dr Dey had provided evidence of recent success in components of the RACGP pathway, this did not address the specific complaints that were then under investigation.1 The application was refused. [3] Dr Dey filed in the Tribunal another application for a stay on 27 June 2011.2 Dr Dey had by this time received confirmation from the RACGP that he had passed the final component of the RACGP pathway, and it appeared that he then possessed the qualifications necessary for specialist registration. [4] On 6 July 2011 Dr Dey submitted an application for specialist registration with the Board.3 By letter dated 18 August 20114 the Board informed Dr Dey that his application was considered to be incomplete and further information was required. The information requested included evidence of Dr Dey’s English language skills.5 [5] On 8 September 2011 Judge Kingham decided the second application for a stay filed by Dr Dey. Her Honour stayed the Board’s decision upon Dr Dey’s provision of an undertaking. Her Honour considered that the undertaking was adequate to address perceived risks arising from the complaints and to protect the public, particularly patients.6 In her reasons for decision her Honour also noted that the Board had raised the issue as to the utility of the review application given that Dr Dey was no longer eligible for limited registration as he had passed the RACGP exams. This issue raised questions about the Tribunal’s function and scope of power. Her Honour considered that the issue was one which should not be 1 Dey v Medical Board of Australia [2011] QCAT 227. 2 Dr Dey filed an application to reopen the proceedings as well as the application for a stay. Her Honour Judge Kingham considered that the application as a new application for a stay rather than a re-opening of the previous decision not to stay the proceedings. 3 Affidavit of Bernadette Maree Thomson filed in the Tribunal on 1 September 2011 at [5]. 4 Exhibit BMT-1 to the Affidavit of Bernadette Maree Thomson filed in the Tribunal on 1 September 2011 5 Affidavit of Bernadette Maree Thomson filed 1 September 2011. 6 Submission on Costs on Behalf of the Applicant, filed in the Tribunal on 22 November 2012. -- 2 of 4 -- 3 determined in a preliminary way and should be dealt with by way of full argument at the hearing. [6] On 26 October 2012 at a directions hearing Dr Dey sought to withdraw his application for review. The Tribunal granted Dr Dey leave to withdraw his application, the order taking effect on 9 November 2012. The order was to take effect from that date so that Dr Dey could reapply for registration once the results of his occupational English test were released or, in the alternative, he could notify his employer that he would have to cease work as he would no longer be registered. [7] The Board seeks an order that Dr Dey pay its costs of and incidental to the proceedings pursuant to scale of costs on a standard basis applicable to matters in the District Court of Queensland. [8] Section 100 of the QCAT Act provides that each party bear their own costs, however, this applies only where the enabling act or another act does not provide otherwise. The enabling act for these proceedings is the Health Practitioner Regulation National Law (Queensland) (‘National Law’). Section 201 of the National Law provides that the Tribunal may make any order about costs it considers appropriate for the proceedings. It is s 201 that applies to costs orders in the proceedings, not s 100 of the QCAT Act. [9] Dr Dey submits that an order that each party bears their own costs would be appropriate, or, in the alternative, should the Tribunal consider an order under s 102 of the QCAT Act necessary, an order be made that the Board pay Dr Dey’s costs of the application for a stay filed in the Tribunal on 27 June 2011. [10] The Board submits that Dr Dey should bear the costs of the proceedings as: a. The application was not ultimately pursued and costs should follow the event. b. The Board was vindicated to a large extent in respect of materials before the Tribunal which raised serious concerns as to Dr Dey’s professional judgement. c. Notwithstanding Dr Dey qualifying through the RACGP assessment program for fellowship he was nevertheless found not to have the requisite proficiency in English as required under the registration standard d. The Board is an entity which is restricted in funding its regulatory functions through registrant’s fees. e. It is in the public interest for the Board to be entitled to a costs order where the review application is discontinued and the Board has acted in good faith in respect of the proceedings. [11] Dr Dey disputes the Board’s submission that it was vindicated to a large extent in that the material referred to by the Board in its submission -- 3 of 4 -- 4 related to only one patient. Dr Dey further submits that his withdrawal of the application meant the parties were spared the costs of a hearing and he should not be penalised for this. The Board submits that notwithstanding the hearing being vacated, the application remained on foot pending Dr Dey’s application for specialist registration. [12] Dr Dey submits that the refusal to renew his registration adversely affected him and his family, particularly because his family had no source of income. [13] Dr Dey’s application was not determined on the merits. His progress towards registration via a different pathway did not mean that he would be likely to meet with success in his review application. Ultimately, that application was withdrawn. The Board was required to respond to it and, in the course of it, Dr Dey’s two applications for a stay of the decision. [14] His success in the second of those stay applications must be considered in the context that he provided undertakings and that the substantive challenge to the decision stayed was ultimately withdrawn [15] The Board’s resources are limited and come from the contributions of practitioners. Ordinarily, when the Board has been required to respond to an application for review of its decision which is ultimately withdrawn without alteration of the Board’s position concerning that decision, it will be appropriate that the applicant pay the Board’s costs. [16] The applicant will be ordered to pay the Board’s costs of an incidental to the proceedings on the standard basis on the District Court Scale. -- 4 of 4 --