Broadbent v Medical Board of Australia [2014] QCATA 329

CITATION: Broadbent v Medical Board of Australia [2014] QCATA 329 PARTIES: Michael Russell Mark Broadbent (Applicant/Appellant) v Medical Board of Australia (Respondent) APPLICATION NUMBER: APL314-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President DELIVERED ON: 25 November 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for miscellaneous matters filed 5 November 2014 is dismissed. CATCHWORDS: PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where the applicant filed an application to strike out Directions made by the Tribunal – where the Directions contained an order that the Board have leave to be legally represented – where the applicant did not oppose that Order – where the applicant now wishes to “strike out” the Order – whether the application is appropriately brought – whether the Tribunal has jurisdiction to restrain a lawyer from acting in a matter Australian Solicitors Conduct Rules 2012 (Qld), r 28 Health Practitioner Regulation National Law Act 2009 (Qld), s 9 Legal Profession Act 2007 (Qld), s 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2), s 28 (3)(d), s 43(1), -- 1 of 5 -- 2 s 43(2)(b)(iv), s 43(3)(d) Bowen v Stott [2004] WASC 94 Chapman v Rogers [1984] 1 Qd R 542 Clay v Karlson & Anor [1997] 17 WAR 493 Jeffery v Associated National Insurance Co Ltd [1984] 1 Qd R 238 Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561 Pearse v Medical Board of Australia [2013] QCAT 329 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). REASONS FOR DECISION [1] On 21 July 2014 Dr Michael Russell Mark Broadbent filed an application in the Tribunal. The application relates to a decision of the Medical Board of Australia to refuse Dr Broadbent’s application for general registration as a medical practitioner under the Health Practitioner Regulation National Law (Queensland) (‘National Law’). [2] Dr Broadbent has filed his application as an application for leave to appeal or appeal in form 39 under the QCAT Rules. That is understandable. The notice of refusal of his registration contained a statement that in accordance with s 199 of the National Law he was able to appeal the decision. Such a statement was required by s 84 of the National Law. [3] However, although s 199 of the National Law refers to the Board’s decision as an appellable decision, such an appeal proceeds as a review of a decision under Part 1, Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).1 [4] In conducting proceedings QCAT is required to act fairly and according to the substantial merits of the case.2 It is to act with as little formality and technicality as the QCAT Act, any enabling Act or the Rules, and a proper consideration of the matters before the Tribunal permit.3 In keeping with those matters Dr Broadbent’s application should be treated as an application for a review of the Board’s refusal decision. [5] On 23 October 2014 the Board applied to have Dr Broadbent’s substantive review application struck out as being either vexatious or an abuse of process. That application was filed by solicitors on behalf of the 1 Health Practitioner Regulation National Law Act 2009 (Qld) s 9; Pearse v Medical Board of Australia [2013] QCAT 329 at [24]. 2 QCAT Act s 28(2). 3 Ibid s 28(3)(d). -- 2 of 5 -- 3 Board. It is apparent from the application that the basis upon which the Board says that the substantive proceedings are vexatious or an abuse of process is that on 20 September 2010 disciplinary proceedings against Dr Broadbent were resolved by the Tribunal accepting an undertaking from him to permanently retire from practice and never to reapply for either registration or relief from his undertaking. [6] On 24 October 2014 the Tribunal held a directions hearing in the proceeding. On that occasion Ms Houston of Moray & Agnew Solicitors appeared on behalf of the Board. No application for leave to be legally represented had been made by the Board. The Tribunal raised the issue of legal representation with the parties. [7] Dr Broadbent indicated that he considered it inappropriate for the Board to be represented by Moray & Agnew given their involvement in the earlier disciplinary proceeding, but otherwise did not oppose leave being granted to the Board to be legally represented. Accordingly, leave was granted to the Board to be legally represented in the proceeding. [8] Directions were made to facilitate the hearing of the strike out application which was listed for 28 November 2014. Those directions included that Dr Broadbent file any material upon which he intended to rely by 13 November 2014. Dr Broadbent has filed no material. [9] Dr Broadbent, on 5 November 2014, filed an application for miscellaneous matters seeking to “strike out” the directions of 24 October 2014. He seeks to be heard as to why he now objects to the Board being legally represented. [10] In that application he claims to have misunderstood his rights at the direction hearing on 24 October 2014. He states that he intends to call ‘the nominated solicitors as witness (sic) in the substantive hearing of the issues’. [11] He states the grounds of his application are: 1. unfair as I do not have legal representation; 2. apprehend on firm ground unfair tactics; 3. I have already been threatened by the lawyers with costs of these proceedings; 4. Such representation is against principle of QCAT. [12] By separate letter dated 27 October 2014, Dr Broadbent had written to the Tribunal acknowledging that at the directions hearing on 24 October 2014 he had not objected to the Board being legally represented but stating that he wished to reverse his position and now to object. He says that it became apparent to him after the directions hearing that he misunderstood the Tribunal’s question concerning whether legal representation was opposed and that he wrongly thought that the Tribunal intended to grant leave regardless. -- 3 of 5 -- 4 [13] He said: Given I will be considerably prejudiced and disadvantaged without legal representation at QCAT and that the presence of legal representation by AHPRA/AMB places a remote and impersonal unnecessary barrier between myself and the Board decision makers as well as an imbalance, I believe the presence of legal representation (particularly in the issues arising) will inhibit the process and possibly a fair outcome. Further, given the prior involvement of the solicitors in this matter it is likely that they will be called as witness (sic) in the evidence I intend to present to support my application. [14] In my view, Dr Broadbent’s application should be refused. [15] Section 43(1) of the QCAT Act provides that the main purpose of s 43 is to have parties represent themselves unless the interests of justice require otherwise. [16] Section 43(2)(b)(iv) provides that a party may be represented by someone else if the party has been given leave by the Tribunal. Section 43(3)(d) provides that in deciding whether to give leave to be represented the Tribunal may consider, as a circumstance supporting the giving of leave, that all the parties have agreed to the party being represented. [17] At the directions hearing Dr Broadbent may not have agreed to the Board being represented; but he did not oppose it being so. He clearly understood that he was being asked whether he opposed representation and he stated that he did not. His motivation to do so is not to the point. [18] Dr Broadbent’s application to have the Tribunal “strike out” its earlier grant of leave is misconceived. He did not seek leave to appeal the grant of leave.4 It is not a decision which can be reopened.5 [19] Even if there was jurisdiction to consider Dr Broadbent’s application, which I do not consider there to be, I would refuse it. Dr Broadbent in his letter for the Tribunal of 27 October 2014 raised issues of legal representation of the Board more generally, namely prejudice and disadvantage, and the placement of a remote and impersonal barrier between himself and the Board, and a more particular objection to the Board’s present lawyers. The latter is based on their involvement in previous proceedings and the potential for them to be called as witnesses in this proceeding. [20] As to the general considerations, I would not accept that a barrier as described by Dr Broadbent would be placed between him and the Board such that the Tribunal processes would be inhibited as he asserts. Nor do I consider that representation of the Board by lawyers would lead to an unfair outcome. 4 Compare Rigney v Murdoch [2010] QCATA 81; QCAT Act s 142(3)(a)(ii). 5 QCAT Act, Chapter 2, Part 7, Division 7. -- 4 of 5 -- 5 [21] To the extent, however, that he may feel that there is an imbalance in the present circumstances whereby the Tribunal’s order of 24 October 2014 only gave the Board leave to be legally represented, a further order giving leave to Dr Broadbent to be legally represented would be made should he seek it. [22] As to the particular representation by the Board’s present lawyers, two points should be made. First, it is by no means clear that any conflict will arise in the event that Dr Broadbent calls solicitors from the firm representing the Board. The particular issues upon which they may give evidence are not identified. It is not apparent whether the solicitors’ integrity or credibility will be put in issue, or that the solicitors would have a personal interest in the outcome which would conflict with their duties to the Tribunal. It is not at all clear that a fair minded, reasonably informed member of the public would conclude that the solicitors’ independent objectivity as a solicitor or witness was compromised by conflicts between their obligations of loyalty to the Board, their role and knowledge as witnesses of material facts, and their potential personal interests.6 [23] If such conflicts became apparent, the solicitors would no doubt consider those matters and any steps they ought to take.7 It is to be noted that the Australian Solicitors Conduct Rules 2012 (Qld) would not prohibit any particular solicitor, his or her associate, or the practice of which he or she was a member, from continuing to act unless doing so would prejudice the administration of justice.8 In my view, however, on the material presently before the Tribunal, such a circumstance has not yet arisen. [24] Secondly, and more importantly, the power to restrain a lawyer from acting in a matter is an inherent power of the Supreme Court. It is exercisable in the Court’s supervisory jurisdiction over its officers,9 and to preserve the proper administration of justice.10 This is a matter within the jurisdiction of the Supreme Court of Queensland, not this Tribunal.11 [25] For these reasons, Dr Broadbent’s application is dismissed. 6 Compare Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561 (Kallinicos) at [90]. 7 Chapman v Rogers [1984] 1 Qd R 542 at 545 per Campbell CJ; Jeffery v Associated National Insurance Co Ltd [1984] 1 Qd R 238 2345 per Thomas J. 8 Rule 27. 9 Kallinicos at [96]; Clay v Karlson & Anor [1997] 17 WAR 493. 10 Bowen v Stott [2004] WASC 94 at [51] applying Williamson v Nilant [2002] WASC 225. 11 Legal Profession Act 2007 (Qld) s 13. -- 5 of 5 --