Dental Board of Australia v Hart [2013] QCAT 177

CITATION: Dental Board of Australia v Hart [2013] QCAT 177 PARTIES: Dental Board of Australia (Applicant) v Dr Christopher Patrick Hart (Respondent) APPLICATION NUMBER: OCR226-11 MATTER TYPE: Occupational regulation matters HEARING DATE: 5 June 2012 & 28 March 2013 HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham Assisted by: Dr Surenda Chandra Dr Valerie Woodford Mr Ken MacDougall DELIVERED ON: 17 April 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application by the Dental Board of Australia is dismissed. 2. Each party must bear their own costs of and incidental to both the investigation and the proceedings. CATCHWORDS: OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – HEALTH PRACTITIONER – DENTIST – CONDUCT OF INVESTIGATION – where the applicant authorised an investigator to investigate a specific complaint – where the investigator broadened the scope of the investigation without authorisation – where that broader investigation was not supported by a complaint – impact of lack of complaint upon relevancy of requested documents. OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – HEALTH -- 1 of 7 -- 2 PRACTITIONER - DENTIST - FAILURE TO RESOND TO NOTICE TO PRODUCE - where the applicant issued the respondent with a notice to produce stated things – where the respondent refused to supply the things requested – where the respondent submitted he had a ‘reasonable excuse’ for the refusal – whether irrelevancy of requested documents constitutes a ‘reasonable excuse.’ Health Practitioners (Professional Standards) Act 1999 (Qld), ss 53(2)(b), 63, 78, 79, 124(1)(d), 124(1)(f) & 255. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100. Latoudis v Casey (1990) 170 CLR 534, applied. Lyons v Dreamstarter Pty Ltd [2011] QCATA 142, cited. Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154, applied. Re Australian Securities Commission v Lucas [1992] FCA 234, applied. APPEARANCES and REPRESENTATION APPLICANT: Mr. Craig Chowdhury, of counsel instructed by McInnes Wilson Lawyers. RESPONDENT: Dr. Michael Wilson, of counsel instructed by Cleary Hoare Solicitors. REASONS FOR DECISION [1] These disciplinary proceedings have their genesis in an unsubstantiated complaint by a dentist formerly employed by Dr Hart. The dentist’s complaint was about the ethics of email instructions from Dr Hart sent to him, as well as to other dentists, about how to charge for various dental procedures. The dentist provided copies of the emails to the Board. An expert, who provided a written report to the Board, advised there was nothing improper in Dr Hart’s instructions. The Board took no further action in relation to the complaint, but did commence disciplinary proceedings based on Dr Hart’s failure to provide information demanded by the -- 2 of 7 -- 3 investigator. Failure to comply with a lawful demand of an investigator1 or failure to comply with a provision of the Health Practitioners (Professional Standards) Act 19992 constitutes unsatisfactory professional conduct, a ground for taking disciplinary action against a dentist. [2] Dr Hart conceded he did not provide the information required but defended these proceedings on the following grounds: a) He had a reasonable excuse not to provide the information; b) He was not given a reasonable time in which to provide the information; and c) The notices were defective. [3] There is nothing in the second ground. The information was first requested of Dr Hart in April 2009 and the investigator’s recommendation to proceed against Dr Hart for his failure to respond was not made to the Board until November 2009. His argument he was not given a reasonable time to respond rests on the proposition that the clock was reset with every new notice or response to a request to extend the deadline. Were this the only basis for defending the Board’s case, Dr Hart would fail. [4] However, Dr Hart’s defence raises questions about the scope of the investigator’s power and the issues under investigation. The notice was issued by the investigator pursuant to s 78 of the Professional Standards Act. That section empowers an investigator to give written notice requiring the recipient to give stated information. It is an offence to fail to give the stated information without a reasonable excuse3. Because the power is conferred “for conducting an investigation”,4 it is common ground that the power is confined by the scope of the investigation authorised by the Board. The terms of the Notice [5] The Notice required Dr Hart to produce: a) a list of all dentists employed by him or his group in Queensland; b) contact details for them and their current work location; c) a list of past employees who left Dr Hart’s employment in the previous 12 months; d) a list of the standard fees usually charged by his group; and e) appointment book entries for each group practice for a 4 day period in January 2009. [6] The investigator abandoned the request for the appointment book entries and did not appear to maintain the request for the list of standard fees. 1 Health Practitioners (Professional Standards) Act 1999, s 124(1)(d). 2 Health Practitioners (Professional Standards) Act 1999, s 124(1)(f). 3 Health Practitioners (Professional Standards) Act 1999, s 79. 4 Health Practitioners (Professional Standards) Act 1999, s 78. -- 3 of 7 -- 4 The focus of his correspondence with Dr Hart’s lawyers was the details relating to current and former employees. Dr Hart maintained this information was not relevant to the matter under investigation. The scope of the investigation [7] The parties appeared to have proceeded on the assumption that the Board had authorised an investigation into two issues referred to in correspondence from the investigator, his notices to Dr Hart and his reports to the Board. They were: a.) Whether you (Dr Hart) instructed employees to bill for dental services that were not actually provided to patients. b) Whether you (Dr Hart) instructed employees to inflate or alter their billing in any way thus not accurately reflecting the services provided to the clients. [8] Those issues are framed in terms that stray well beyond the terms of the original complaint, which was that Dr Hart had instructed the dentist and his colleagues to misuse billing item numbers for certain procedures. [9] Counsel for the Board, quite properly, made two concessions. Firstly, that the investigator’s power to demand information was confined by the scope of the investigation authorised by the Board. Secondly, that the information stated in the notice, although relevant to those two issues, was not relevant to the original complaint. [10] It was critical to the Board’s case, then, that it had authorised the investigator to investigate those two issues. If not, the notice sought documents not relevant to the complaint and, as such, it was open to challenge as not being a notice issued for the purpose of the investigation.5 The investigation authorised by the Board [11] The letter of complaint was dated 20 November 2008. The complainant provided further information to the Board on 4 March 2009. On 17 March 2009, Rebecca Lavery provided a briefing note to the Board recommending investigation of the complaint. Her recommendation was in the following terms: It is recommended the Board consider: 1. pursuant to s.53(2)(b) investigating this matter under the investigation part of the HPPSA.6 [12] On 7 April 2009, the Board resolved to investigate the complaint pursuant to s 53(2)(b) of the Professional Standards Act. The specific reference to 5 Re Australian Securities Commission v Lucas [1992] FCA 234 [73] & [75]. 6 Exhibit 13. -- 4 of 7 -- 5 that section identifies that the Board was authorising an investigation into a particular complaint that had been made to it. It could have proceeded under s 63 and s 64 of that Act, if it reasonably believed that an aspect of Dr Hart’s conduct may have provided a ground for taking disciplinary action. It is arguable that the complaint may have given rise to a reasonable belief sufficient to support the two issues identified by the investigator. However, in this case the Board did not proceed in that way. Instead, it identified the investigation as one undertaken pursuant to s 53, in response to a complaint. [13] On 20 April 2009, the Director, Professional Standards Program, appointed Mr Taylor as the investigator. The direction7 was to investigate the complaint. The next day, Mr Taylor wrote to Dr Hart, enclosing a copy of the complaint. In the letter, Mr Taylor identified the two issues set out above as the matters to be considered during the investigation. This appears to be the first occasion on which those two issues were articulated. [14] Counsel for the Board argued it could rely on the presumption of regularity to the effect that all necessary steps are presumed to have been taken. Although it authorised investigation of the complaint, its subsequent acceptance of a report identifying the two issues was accepted without demur. [15] I am not satisfied the presumption applies to these circumstances. The presumption applies if a public official or authority purports to exercise a power or to do an act in the course of his duties. The presumption is that all the conditions necessary to the exercise of that power have been fulfilled.8 Here the question is not whether the Board fulfilled the conditions necessary to exercise its power. Rather, the issue is which power it chose to exercise. The evidence clearly establishes that the Board was exercising its power under s 53, not s 63 and s 64. This follows from the terms of the briefing note to the Board, the minutes of the Board’s resolution and the instrument of appointment of the investigator. On that evidence, I have concluded that the Board authorised Mr Taylor to investigate the dentist’s complaint, not the two issues Mr Taylor identified in his correspondence. [16] Although it is not clear how the two issues were derived, it is reasonable to assume, in the absence of any other evidence about how or when they were formulated, that Mr Taylor was their author. That does not mean that the Board did or intended to authorise him to investigate them. Given that finding, the Board’s case against Dr Hart must fail. The notice requested information which was not relevant to the complaint. As such, Dr Hart had a reasonable excuse for not complying with the notice. 7 Affidavit of Collect Graham Taylor, 14/05/12, annexure CGT3. 8 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154, 164. -- 5 of 7 -- 6 Observations about the Board’s processes [17] This case raises for the Board’s consideration questions about its internal processes. It has a weighty responsibility in maintaining professional standards and public confidence in the profession. It has significant statutory powers and its investigations have the potential to harm a professional’s reputation. [18] The Board relied upon its investigator to proceed according to the terms of its resolution. He did not do so. That has only become evident some years after the events in question. Although it is not reasonable to expect the Board to closely supervise all investigations, it bears responsibility for disciplinary processes in relation to dentists. It is for the Board to ensure that its processes comply with the Act and that investigations proceed in accordance with its resolutions. In this case, the picture that emerges from the scant documentation is that it was the investigator who defined and controlled the investigation, not the Board. [19] The Board led evidence about the acrimonious nature of the interactions between Dr Hart and the investigator. From the outset, Dr Hart complained about the investigation, including the investigator’s decision to approach Dr Hart’s employees without giving Dr Hart the opportunity to respond before the investigation went further. Given the complaint involved the interpretation of written billing instructions, the Board had little to lose from affording Dr Hart that opportunity. Dr Hart’s hostile response was out of proportion, certainly, but was influenced by his apprehension that he was, unfairly, the target of groundless complaints. The Tribunal need not determine whether that apprehension was well founded. However, it accepts that was Dr Hart’s perception, justified or not. [20] Given Dr Hart questioned the scope and authorisation of the investigation, the investigator had good reason to elevate the matter to the Director of the Program if not to the Board itself, for proper consideration. Instead, it seems, the matter proceeded as a contest between the investigator and Dr Hart’s lawyers. The investigator formed the view that Dr Hart was deliberately obstructing him and the repeated demands by Dr Hart’s lawyers for the investigator to justify how the information was relevant went, effectively, unanswered. Had the Board become directly involved earlier, it might have become apparent that the investigator was engaged in a broader enquiry than it had authorised. Costs [21] The Tribunal may make any order about costs it considers appropriate for the disciplinary proceedings.9 This grant of power excludes the costs provision in the Queensland Civil and Administrative Tribunal Act 200910 which establishes the starting point that each party should bear their own 9 Health Practitioners (Professional Standards) Act 1999, s 255. 10 Queensland Civil and Administrative Tribunal Act 2009, s 100; see Lyons v Dreamstarter Pty Ltd [2011] QCATA 142. -- 6 of 7 -- 7 costs in Tribunal proceedings. The costs provision in the Professional Standards Act confers a broad general discretion which must be exercised judicially, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation.11 [22] The Board has not been successful in its case against Dr Hart. While it was exercising a statutory function in taking action, that cannot mandate the outcome, or the Tribunal would have no discretion to exercise. Ultimately Dr Hart successfully defended the Board’s case. That, also, is not determinative. The costs of this proceeding and, to some extent, the delays in finally disposing of it, have been inflated by Dr Hart’s decision to pursue a jurisdictional argument which did not succeed and which was at odds with his election to have the Board refer the matter to the Tribunal in the first place. Against that, the Board’s professional panel was unlikely to have been in a position to properly adjudicate on the legal questions that arose because of Dr Hart’s defence. [23] I consider it is not in the interests of justice to award costs in favour of either party. The Board, although exercising a statutory function, had other options open to it, including prosecution for an offence against the Act. Its case failed because of flaws in its internal processes. On the other hand, although Dr Hart successfully defended the action, he did so on a basis articulated only recently and after other unsuccessful arguments complicated and lengthened the proceedings. [24] I order that each party bear their own costs of and incidental to both the investigation and the proceedings. 11 Latoudis v Casey (1990) 170 CLR 534, 557. -- 7 of 7 --