Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364

CITATION: Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 PARTIES: Jean-Claude ASCOT (Applicant) v Nursing & Midwifery Board of Australia (Respondent) APPLICATION NUMBER: OCR111-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 15 July 2010 HEARD AT: Brisbane DECISION OF: Judge Kingham (Deputy President) DELIVERED ON: 2 August 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The name of the respondent is amended to the Nursing & Midwifery Board of Australia. 2. The applicant has leave to withdraw these proceedings. 3. The application by the Board that Mr Ascot to pay its costs is refused. CATCHWORDS : COSTS: Health Practitioner, Review of Registration Decision, Withdrawal of application; Whether the interests of justice require an order for costs to be made. Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 ss2, 123 Health Practitioners (Professional Standards) Act 1999 s405P; s405L Nursing Act 1992 s137 Queensland Civil and Administrative Tribunal Act 2009 s20, s33, 100, 102 Knight v FP Special Assets Ltd (1992) 174 CLR 178 applied Tamawood Ltd & Anor v Paans [2005] QCA 111 applied -- 1 of 7 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT : C Hartigan instructed by Maurice Blackburn for the Applicant RESPONDENT: S Gallagher instructed by Rodgers, Barnes and Green for the Respondent REASONS FOR DECISION [1] Mr Ascot, a nurse, applied to the tribunal to review decisions about his registration made by the Queensland Nursing Council (now the Nursing & Midwifery Board of Australia 1 ). On 9 April 2010, the Board cancelled Mr Ascot’s registration and granted him limited registration subject to conditions. This action was taken in the course of the Board’s investigation of allegations by a patient of Mr Ascot that he had pursued and maintained an inappropriate relationship with her. The complaint was referred to the Board by the Health Quality Complaints Commission (HQCC) in April the year before. [2] After this application had been filed (7 May 2010), the Board received the report from the investigator (21 June 2010), commenced disciplinary proceedings against Mr Ascot in the tribunal (29 June 2010) and filed substantial affidavit material in these proceedings, which included the investigator’s report (2 July 2010). Mr Ascot was served with the application for disciplinary proceedings (9 July 2010). On the same day he applied for leave to withdraw his application to review the Board’s decision. [3] The Board did not oppose his application to withdraw. It sought an order that Mr Ascot meet the Board’s costs of these proceedings, which Mr Ascot opposed. [4] Mr Ascot’s application was made under the Nursing Act 1992. That Act was repealed on 1 July 2010. Nurses were brought under the Health Practitioners (Professional Standards) Act 1999, which now applies generally to health practitioners in Queensland.2 Provisions of the Professional Standards Act, inserted to manage the transition from the Nursing Act, commenced on 1 July 2010. Their effect is the tribunal must continue to hear an application to review a decision commenced under the Nursing Act that has not been decided by 1 July 2010, as if the Nursing Act had not been repealed.3 [5] There is no common law jurisdiction in tribunals to award costs. The power to order one party to pay the costs of another is entirely a creation of statute.4 1 Health Practitioners (Professional Standards) Act 1999 s405P(3) 2 Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 ss2, 123 3 Health Practitioners (Professional Standards) Act 1999 ss 405P(1); s405P (5) definitions of existing QCAT proceeding; registration proceeding and relevant Act ; s405L definitions of amending Act and repealed health practitioner registration Act 4 Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 193 -- 2 of 7 -- 3 [6] The Nursing Act provided that an aggrieved person could apply, as provided under the QCAT Act to review specified decisions. 5 Under the QCAT Act, each party must bear their own costs for the proceeding, unless costs are otherwise provided for under the QCAT Act or an enabling Act.6 The Nursing Act, the enabling Act in this case, did not provide otherwise. The provisions of the QCAT Act, therefore, will determine the matter. [7] The nature and extent of the power to award costs can only be discerned by close consideration of the terms of the relevant provisions.7 [8] The Tribunal may make a costs order if the tribunal considers the interests of justice require it to make the order.8 The tribunal may have regard to a number of considerations specified in s102(3). [9] The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order. [10] The first consideration is whether a party has acted in a way that unnecessarily disadvantaged another party.9 The Board relied on Mr Ascot choosing not to file any evidence other than an unsworn affidavit of his solicitor. This, it said, did not comply with the tribunal's direction. [11] Mr Ascot’s counsel asserted his right, in a review application, to proceed on the material before the original decision maker. There is no obligation upon an applicant for review to file fresh evidence. It could not be said the Board was unnecessarily disadvantaged in the proceedings by Mr Ascot not doing so. The direction required Mr Ascot to file any affidavit material upon which he intended to rely. That did not mean he had to go into evidence if he chose not to. [12] The second consideration is the nature and complexity of the dispute.10 The Board submitted Mr Ascot had misapprehended the nature of the review. The purpose of a review is to produce the correct and preferable decision. The tribunal must hear and decide a review by way of a fresh hearing on the merits. 11 According to the Board, Mr Ascot’s submissions demonstrated he misconceived these proceedings as a rehearing or judicial review in which an error by the decision maker need be demonstrated. 5 Nursing Act 1992 s137 6 Queensland Civil and Administrative Tribunal Act 2009 s100; An enabling act is one that confers jurisdiction on the tribunal, Queensland Civil and Administrative Tribunal Act s6(2) 7 Tamawood Ltd v Paans [2005] QCA 111 @ [23] 8 Queensland Civil and Administrative Tribunal Act 2009 s102(1) 9 Queensland Civil and Administrative Tribunal Act 2009 s102(3)(a) 10 Queensland Civil and Administrative Tribunal Act 2009 s102(3)(b) 11 Queensland Civil and Administrative Tribunal Act 2009 s20 -- 3 of 7 -- 4 [13] Mr Ascot’s counsel contested there was a misconception about the nature of the review. The initial submissions made on his behalf do correctly record the purpose and nature of the review. It is fair to say the submissions were couched in language suggestive of a judicial review application. Nevertheless, the submissions did raise relevant considerations for a review on the merits. [14] The submissions addressed the role of the Board at the stage of a then incomplete investigation. Amongst the propositions made were these. On the state of the evidence then available, the decision maker should not have reached the decision that it did. To do so was premature. The conduct admitted to by Mr Ascot did not, without more, justify the decision that was made. [15] Each of those propositions would have been relevant considerations for the tribunal at the hearing. However, those arguments stood to be assessed not on the evidence before the Board when it made its decision, but upon the evidence available to the tribunal at the time of hearing. [16] In any case, even if the Board is correct, and Mr Ascot did misconceive the nature of this review and the submissions were entirely irrelevant, that does not mean the proceedings involve complex questions. The issue was whether the decision should be made to cancel Mr Ascot’s registration and grant limited registration with conditions. That does not raise complex questions of law. It is a question of merits on the information then available. In the circumstances of this case, it would have required the tribunal to decide whether the evidence marshalled by the Board justified the limitation imposed on Mr Ascot’s registration. That would have involved an assessment of evidence and an exercise of discretion. I am not persuaded there was any complexity in the dispute. [17] That raises the next factor the tribunal may consider, the relative strengths of the claims made by the parties.12 Counsel for the Board argued the timing of Mr Ascot's application to withdraw reveals that he gave up in the face of overwhelming evidence. [18] When the proceedings commenced, a complaint had been made against him but it had not been fully investigated. The investigation seems to have moved somewhat slowly. The HQCC referred the allegations in April 2009. An investigator was appointed on 30 September that year. Mr Ascot was notified sometime in October and provided submissions in response that month. In March this year, the Board did not have the investigator’s report but requested further submissions from Mr Ascot, including about conditions the Board proposed to impose on his registration. He provided submissions. The Board then made its decision. 12 Queensland Civil and Administrative Tribunal Act 2009 s102(3)(c) -- 4 of 7 -- 5 [19] Once Mr Ascot had notice of the Board's decision, he took prompt action. The Board notified its decision on 13th of April. 10 days later, solicitors engaged by Mr Ascot requested a statement of reasons. On 7 May, Mr Ascot applied to QCAT. [20] His counsel submitted Mr Ascot had not received the statement of reasons before the date of which he needed to commence proceedings. That is a misreading of the provisions of the QCAT Act. An applicant to review a decision must commence proceedings within 28 days after the relevant day. If the applicant has requested a written statement of reasons under s158 of the QCAT Act, the relevant day is the earlier of: (i) the day the applicant received the reasons; or (ii) the day by which the written statement was required to be given. 13 [21] Mr Ascot requested but had not received a written statement of reasons when he commenced these proceedings. He was entitled to wait until 28 days after they were due. [22] In any case, he was entitled to commence when he did. The investigator’s report had not been received. Waiting for the statement of reasons would not have materially changed an assessment of his prospects at that time. He was subject to conditions which prevented him from working, as he had been, as a contract nurse. His decision to commence these proceedings, at that time, cannot be said to have been frivolous or vexatious. His application was not unarguable. [23] The Board filed substantial material shortly before Mr Ascot sought leave to withdraw. At around the same time, it notified its decision to instigate disciplinary proceedings against him. [24] The Board said its further material dealt with a fully articulated complaint. The complaint was comprehensive and attached photographs, emails and other correspondence to support the allegations. Given disciplinary proceedings are now before the tribunal I will not express any view about the extent to which the attachments do corroborate the complaint. [25] Regardless, the conclusion of the investigation marked a significant change to the factual basis for the application. This is demonstrated by the Board commencing disciplinary proceedings almost immediately after receiving it. The Tribunal was, then, armed with more and independent information than was available to the Board when it made its initial decision on Mr Ascot’s registration. 13 Queensland Civil and Administrative Tribunal Act 2009 s33(3),(4)(b) -- 5 of 7 -- 6 [26] The Board may well be right in saying Mr Ascot has given up in the face of that evidence. This does not mean that his action should sound in costs. Had the investigator’s report been available before Mr Ascot commenced this action, the situation would be different. But it was not. As soon as it was, Mr Ascot moved quickly to reconsider his position. [27] Mr Ascot then faced making a case on the same factual issues in two proceedings. The duplication made little sense for either party and events would fairly quickly have overtaken the utility of the review proceedings. [28] There are further considerations for costs application which are peculiar to review proceedings: whether the applicant was afforded natural justice by the decision maker and whether the applicant genuinely attempted to enable and help the decision maker to make the decision on the merits. 14 [29] Mr Ascot was given the opportunity to comment specifically on the action later taken by the Board. He provided prompt responses to the Board’s requests. The Board alleged Mr Ascot’s conduct in the investigation was not helpful, but did not submit that an order for costs should be made for that reason. The suggestion Mr Ascot was not truthful in his responses will not be addressed here, given the disciplinary proceedings now before the tribunal. [30] Another consideration is the financial circumstances of the parties.15 There is no evidence about Mr Ascot’s financial circumstances but a number of facts may be considered: Mr Ascot’s occupation; the need to change how he works as a nurse given the conditions imposed on his registration; his representation in these proceedings by lawyers engaged by the Nurses Union; and his lack of representation in the disciplinary proceedings. It is reasonable to infer Mr Ascot does not have substantial means. [31] The Board is funded by the fees of its registrants. In another case that might assume greater significance than it does in this. Counsel for the Board, properly, conceded that much of the material prepared for the review proceedings could and would be relied upon in the disciplinary proceedings. The costs of their preparation can and should be considered in those proceedings. Mr Ascot’s conduct of these proceedings has not produced unusual or unnecessary costs for the Board. [32] The tribunal may have regard to anything else it considers relevant to the question of costs.16 The Board produced emails sent by Mr Ascot to a Board employee in which he was rude, discourteous and abusive. His behaviour was atrocious and, on the face of it, unprovoked. No doubt something will be made of that in the disciplinary proceedings if it comes to a contest about the credibility of his version of events. 14 Queensland Civil and Administrative Tribunal Act 2009 s102(3)(d) 15 Queensland Civil and Administrative Tribunal Act 2009 s102(3)(e) 16 Queensland Civil and Administrative Tribunal Act 2009 s102(3)(f) -- 6 of 7 -- 7 [33] I am not convinced, though, that it calls for the sanction of a costs order. It is unconnected to these proceedings. It occurred in the context of an investigation when Mr Ascot was undoubtedly under some pressure. We do not always respond at our best in such circumstances. His behaviour demands an apology to the maligned officer. It does not require an award of costs. [34] The intended purpose of the costs provisions of the QCAT Act is clear enough. Parties must bear their own costs unless the interests of justice require otherwise. Mr Ascot has not conducted these proceedings in a way that unnecessarily disadvantaged the Board. While the stakes were high for Mr Ascot there was no particular complexity about these proceedings. It was not unreasonable for him to have made his application when he did. The investigation was dragging on. The Board acted before it had concluded. On the state of the evidence then available, Mr Ascot’s case was arguable. [35] He acted quickly when the investigation concluded and the disciplinary proceedings commenced. I am hampered in assessing Mr Ascot’s conduct in the investigation, given the disciplinary proceedings now before the tribunal. Mr Ascot’s prompt action to withdraw the application minimised the costs for both parties in these proceedings. The Board will have the benefit of its preparation of material in this proceeding, in the disciplinary proceedings. Those costs can be taken into account there. Mr Ascot’s conduct towards a Board employee is worthy of censure but of itself does not justify an order against him. I am not persuaded the interests of justice require a costs order against Mr Ascot. The Board’s application is refused. -- 7 of 7 --