Cooke, Re [1995] QSC 146 [1997] 1 Qd R 15

IN THE SUPREME COURT OF QUEENSLAND No. MIS688 of 1994 Brisbane Before the Hon. Justice White [Re: Cooke] IN THE MATTER of THE MEDICAL ACT 1939-1988 - and - IN THE MATTER of ROBERT JOHN COOKE JUDGMENT - WHITE J Judgment delivered 17/07/1995 CATCHWORDS: Medical Assessment Tribunal - power to order costs to be taxed by the Taxing Officer of the Supreme Court - Reference - Appeal Costs Fund Act Counsel: Mr Bourke for the Medical Board of Queensland Mr H. McCay, Solicitor for Dr Robert John Cooke Solicitors: Minter Ellison for the Medical Board of Queensland Flower & Hart for Dr Cooke Hearing date: 9 September 1994 -- 1 of 18 -- IN THE SUPREME COURT OF QUEENSLAND No. MIS688/94 IN THE MATTER of THE MEDICAL ACT 1939-1988 - and - IN THE MATTER of ROBERT JOHN COOKE JUDGMENT - WHITE J Judgment delivered 17/07/1995 On 29 May 1990 the respondent was charged by the Medical Board of Queensland with being guilty of misconduct in a professional respect. The charge was heard by the Medical Assessment Tribunal constituted by the Honourable Mr Justice Shepherdson on 1 October 1990. On 15 October the Medical Assessment Tribunal ("the Tribunal") delivered its decision in which it found the charge not proved and on the question of costs ordered:- "... that the Medical Board of Queensland do pay Dr Robert John Cooke's costs of and incidental to this prosecution before the Tribunal, such costs to be taxed by the Taxing Officer of the Supreme Court of Queensland at Brisbane on the scale referable to actions in the Supreme Court of Queensland" When the parties appeared before the Taxing Officer of the Supreme Court on 11 August 1994 he doubted his authority to tax the bill of costs presented to him as ordered by the Tribunal. Accordingly he referred the following questions to the Chamber Judge for consideration: "A. Does the Taxing Officer of the Supreme Court of Queensland ('the Taxing Officer') have authority to tax a bill of costs directed to him pursuant to an order made by The Medical Assessment Tribunal ('The Tribunal')? -- 2 of 18 -- 2 B. If the Taxing Officer has authority to tax such costs what procedure should be followed by a party in whose favour such a costs order has been made to have the matter brought before the Taxing Officer?" Both The Medical Board of Queensland and Dr Robert Cooke submitted that there was power to make such an order in the Tribunal. A preliminary matter needs to be mentioned, namely the Court's power to entertain the reference from the Taxing Officer. Order 91 r.77 empowers the Taxing Officer, inter alia: "...to do such other acts and adopt such proceedings as may be directed by these Rules, or by the Court or a Judge." That does not seem to authorise a general reference to a Judge moving from the Taxing Officer. The Court on the application of a dissatisfied party may review the Taxing Officer's certificate or allocatur, O.91 r.119, but that requires that taxation has occurred. There does not otherwise appear to be any rule which specifically addresses the question of a reference to the Court by the Taxing Officer. The Rules do recognise the process of reference by both the Registrar and a Master to a Judge in Chambers in respect of matters within their respective jurisdictions. Order 61 r.1A provides for the Registrar to exercise the same powers as a Judge in Chambers in respect of specified matters. The Registrar may refer any of these matters to a Judge in Chambers. A Master exercises the jurisdiction of a Judge in Chambers in respect of the matters not exempted by O.86 r.1. A -- 3 of 18 -- 3 Master may refer any such matter to a Judge for decision. The failure to give a general power of reference in respect of the matters within the jurisdiction of a Taxing Officer does not in my view lead to a conclusion that there is no such power. There may be questions upon which the Taxing Officer would wish for the advice of the Court before proceeding to tax a bill of costs although I am informed by the Taxing Officer that it is not a practice which has occurred more than rarely and he has been unable to draw my attention to any particular reference. But the capacity to refer a question to the Judge must be considered a convenient and sensible procedure. The Taxing Officer is an officer of the Court and under the direction of the Judges, Supreme Court Act 1867 s.39; Byrnes v. James (1889) 3 Q.L.J. 165; O.1 r.1 R.S.C. On a reference by the taxing officer to a Judge in chambers over the objection of one of the parties, Madden C.J in the Supreme Court of Victoria, observed: "The taxing officer is merely an officer of the Court, and the Court would be taxing the bill itself if the officer did not do it...The practice has always been for the taxing officer to ask the opinion of a Judge if he finds himself in any difficulty, and it seems eminently wise and useful that such a practice should prevail...The case is this, an officer of the Court desires to be advised by the Judge what the law upon this point is. It appears to me that he would have the right to come personally to the Judge and ask his opinion concerning any question about which he might feel himself in a difficulty; and, if this be so, I can see no objection to the course he has adopted in the present case." In Re Hayard v. Martin (1895) 17 A.L.T. 37. Similarly in Glasson v. Barry (1912) 12 S.R.(N.S.W.) 716 the Deputy Prothonotary charged with taxing the costs in an action and cross-action considered that the question was one of -- 4 of 18 -- 4 importance and difficulty and that if he proceeded on a wrong principle in taxing the bill that would be productive of expense and, at the parties' request, he referred the question to the Court for its decision. The Court of Appeal proceeded to consider the question raised in the reference without comment as to the appropriateness of the procedure. Neither the Victorian nor the New South Wales Rules of Court were, so far as I can ascertain, when those cases were decided, materially different from the Queensland Rules. See also R. v. Bach (1821) 9 Price 349; 147 E.R. 115. Woolf LJ in R. v. The Taxing Officer ex parte Bee-Line Roadways International Ltd (DC 1234/81) in The Times L.R. February 11th, 1982 concluded that where no relief was available under the Rules of the Supreme Court the Court could, in the exercise of its inherent jurisdiction to control its own proceedings examine decisions of a taxing master who was a delegate of the Judges. There appears to be no clear rule or practice which enables the Taxing Officer to refer a matter to the Court for its opinion prior to carrying out a taxation. I note that Cooper J considered a reference from the Deputy Taxing Officer as to whether he could proceed to tax a bill of costs brought against one defendant only in respect of an action when the costs orders had been made against two defendants. There was no consideration given to the jurisdiction to bring the reference in the judgment, but his Honour proceeded to answer the question in the reference, Thiess Watkins White Construction Limited v. Balashore Pty Ltd (unreported decision -- 5 of 18 -- 5 19 March 1992 SC 92/065). In my view, the Court in the exercise of its supervisory function over its officers and for the better administration of justice may entertain such a reference. That the question for consideration derives from another Act, namely, the Medical Act does not affect this conclusion. It has been submitted that it was open to the parties to bring a construction summons pursuant to O.64 r.1B and that the reference could, with any necessary amendments, be treated as such a summons. I accept that that would be a procedure open to me had I not concluded that the Court otherwise has jurisdiction to entertain the reference. The Medical Act 1939 as amended provides in s.33(1) for the establishment of a Medical Assessment Tribunal for, inter alia, the better control and discipline of medical practitioners (including specialists) "which shall be constituted by a Judge of the Supreme Court". By s.33(1A) the Tribunal is a Superior Court of Record. By s.34 the Tribunal is empowered to hear and determine or investigate certain matters relating to medical practitioners. By s.33(2): "Subject to this Act the Judge shall have all the powers, jurisdiction, and authority of a Judge of the Supreme Court in and with respect to the exercise by the Judge of all or any of the Judge's powers, authorities, and jurisdiction under this Act." Until an amendment made to the Medical Act in 1976 the words "except the power to award costs" were included at the end of s.33(2) and by that amendment those words were deleted. The power of a Supreme Court Judge to order costs is found in the Supreme Court Act 1867 which provides in s.58 that -- 6 of 18 -- 6 "...the Supreme Court shall have power to award costs in all cases lawfully brought before it and not provided for otherwise than by this section". By s.8 the Supreme Court consists of Judges duly appointed. The powers of a single Judge are set forth in that Act in ss.21 and 38, in the Act of 1874 in s.12 and in the Act of 1892 in s.14. Other powers are contained in s.6 of the Judicature Act of 1876. The detailed provisions respecting costs are to be found in O.91 of the Rules of Court. Where costs are ordered to be taxed, by O.91 r.39, they are to be taxed by the taxing officer of the Supreme Court. The power to make such Rules is to be found, inter alia, in the Judicature Act 1876, the Supreme Court Act 1899, s. 3 and, principally, the Act of 1921 in s.11 and see also the validating Act of 1928. The Supreme Court Act of 1867 provides in s.39 that the Supreme Court shall have a prothonotary and registrar and such other officers as appear necessary for the administration of justice and the due execution of all the powers and authorities of the Court. In Byrnes v. James (1889) 3 Q.L.J. 165 Lilley C.J. with whom Harding J. and Chubb A.J. concurred, held that all officers of the Court in the discharge of those functions were under the direction of the Judges, and see also South and Geldard v. Stevenson [1985] 2 Qd.R. 593 per Demack J. at p. 594. "Taxing Officer" is defined in O.1 r.1 of the Rules of the Supreme Court as: "...the person appointed as Taxing Officer or to discharge the duties of Taxing Officer at Brisbane, Rockhampton or Townsville, as the case may be, or, in his absence, such officer of the Court as the Chief -- 7 of 18 -- 7 Justice, or the Central Judge or Northern Judge, as the case may be, shall direct to discharge such duties during such absence." It is plain that after the 1976 amendment to which I have referred the Tribunal has the power to award costs at its discretion. This is derived from the amended s.33(2). The Medical Act is otherwise silent on the question of costs in respect of matters heard before the Tribunal. By s.43 of the Medical Act a person who desires to appeal from a decision of the Tribunal may apply to the Judge constituting the Tribunal to state and sign a case for appeal to the Court of Appeal. By s.45 the Court of Appeal may make any order as seems proper and "may make such order as to costs as to the Court of Appeal may seem fit", (see also s.44(3)). The power of the appellate Court to award costs appeared in the Medical Act when the Tribunal had no power to award costs prior to 1976. The reference was then to the Full Court. That power has been continued expressly after the 1976 amendment. There appears to be no doubt that should the Court of Appeal in dealing with a matter pursuant to either s.44 or s.45 order costs to be paid that they may be taxed by the Taxing Officer of the Supreme Court. Is there then any compelling reason why the Tribunal which has all the powers of a Judge of the Supreme Court and the power to order costs may not order that they be similarly taxed? There are other named courts and tribunals which are constituted by a Judge of the Supreme Court. The Mental Health Tribunal is established pursuant to Part IV of the Mental -- 8 of 18 -- 8 Health Act 1974 and consists "of a Judge of the Supreme Court...". The jurisdiction of the Mental Health Tribunal is to hear and determine all proceedings instituted under the Mental Health Act. Section 28C(1A) specifically provides that its jurisdiction "does not include jurisdiction to award costs". Unlike the Medical Assessment Tribunal it is not a Superior Court of Record and neither is the Judge who constitutes the Mental Health Tribunal said to have all the powers, jurisdiction and authority of a Judge of the Supreme Court with respect to the exercise by the Judge of the Judge's powers, authorities and jurisdiction under the Mental Health Act. Section 28C(4) provides that for the purpose of exercising its jurisdiction The Mental Health Tribunal is to be deemed to be a commission of inquiry pursuant to the Commissions of Inquiry Act 1950 and the Judge constituting the Tribunal is deemed to be the chairperson of the commission. The Industrial Court constituted under earlier legislation is preserved and continued in existence under the Industrial Relations Act 1990. By s.8(1)&(2) the Court is constituted by a single Judge of the Supreme Court. By s.9 the President (who constitutes the Industrial Court) is vested with all the jurisdiction and powers of the Industrial Court, but not all the powers, authorities and jurisdiction of a Judge of the Supreme Court. By s.7(2) the Industrial Court is a Superior Court of Record with an official seal. Power to award costs is expressly conferred in s.8.18. There is power to make rules which is sufficient to cover the taxation of costs. -- 9 of 18 -- 9 The Land Appeal Court is established by the Land Act 1962 as amended. It consists of a Judge of the Supreme Court and any two members of the Land Court exclusive of the member who pronounced the decision appealed against, s.44(1). It is a court of record with an official seal s.44(8). By s.44(16), as amended in 1981, the Land Appeal Court may make any order that it thinks fit as to the costs of and incidental to an appeal to it. An order of the Land Appeal Court may be made an order of the Supreme Court. If that occurs the Registrar of the Land Appeal Court transmits to the relevant Registrar of the Supreme Court a sealed copy of the order. In making an order as to costs the Land Appeal Court may order that they be ascertained and fixed by the Taxing Officer of the Supreme Court at Brisbane (or otherwise) according to the scale of costs for the time being in respect of proceedings in the Supreme Court. The Taxing Officer is authorised and required to ascertain and fix such costs in accordance with that order. The original s.44(16) provided for the taxation of costs by the Taxing Officer of the Supreme Court if so ordered by the Land Appeal Court, but left the question of the proper scale to the discretion of the Taxing Officer. The Commercial Arbitration Act 1990 provides in s.34(2) that any costs of the arbitration directed to be paid to the award except so far as taxed or settled by the arbitrator be taxable in either the District or Supreme Court as relevant. The Elections Act 1915 as amended provided in Part 8 for the establishment of an Elections Tribunal to be constituted by -- 10 of 18 -- 10 a Judge of the Supreme Court and to be a court of record, s.101(1). By s.101(4), subject to the Elections Act, on the trial of an election petition or reference, the Judge was to have "all the powers, jurisdiction and authority of a Judge of the Supreme Court of Queensland". By s.137 of the Elections Act the Judge constituting the Elections Tribunal had power to award costs but not exceeding a specified sum. It provided that: "All costs, charges, and expenses of and incidental to the presentation of a petition, and to the proceedings consequent thereon, with the exception of such costs, charges and expenses as are by this Act otherwise provided for, shall be defrayed by the parties to the petition in such manner and in such proportions as the Judge may determine, regard being had to - (a) The disallowance of any costs, charges, or expenses which may in the opinion of the Judge have been caused by vexatious conduct, unfounded allegations, or unfounded objections on the part either of the petitioner or the respondent; and (b) The discouragement of any needless expenses by throwing the burden of defraying the same on the parties by whom it has been caused, whether such parties are or not on the whole successful. But the total amount of costs which may be ordered to be paid by any one party shall not exceed five hundred pounds. The costs may be taxed in the prescribed manner, but according to the same principles as costs between solicitor and client are taxed in an action in the Supreme Court of Queensland, and such costs may be recovered in the same manner as the costs of an action, or such other manner as may be prescribed. Such taxation shall be subject to review by the Judge." The "prescribed manner" was clearly a reference to the Rules. Section 138 provided that the Judges of the Supreme Court might -- 11 of 18 -- 11 make rules for the effectual execution of Part 8 of the Elections Act. The original Rules were made in 1888 and continued under subsequent Acts. By Rule 4 the Rules of the Supreme Court, in so far as they were applicable and did not conflict with the Elections Act and the Elections Tribunal Rules, applied to all proceedings before the Elections Tribunal. Rule 56 of the Elections Tribunal Rules provided that the costs ordered to be paid "shall be taxed by the Taxing Officer of the Supreme Court...". The Elections Act 1915 was repealed by the Elections Act 1983 which provided in Part 9 for the provision of an Elections Tribunal and was in the same form as the previous legislation. It seems likely that the Rules of Court continued in existence pursuant to s.175. That Act was repealed by the Electoral Act of 1992 which provides in s.127(1) that the Supreme Court is the Court of Disputed Returns for the purposes of the Act. By s.140 the Court of Disputed Returns is empowered to order "the reasonable costs" of the other parties to the petition. There would appear to be no doubt that the Judge constituting the Court of Disputed Returns would have all the powers and jurisdiction, consistent with the Electoral Act, to make orders for the taxation of such costs. It is difficult to see what the draftsman hoped to achieve by use of the expression "reasonable". The Medical Assessment Tribunal is not stated to have any officers other than the Registrar of the Medical Board who is described in s.42(1) to be "for all purposes the Registrar of the Tribunal". That person is the only officer of -- 12 of 18 -- 12 the Tribunal. It cannot be supposed that the person bearing that title has any learning or skills to carry out an assessment of costs. The Taxing Officer has observed in his reference that the Tribunal is not the Supreme Court of Queensland. This seems to imply that although clothing the Tribunal with "the powers, jurisdiction and authority" of a Judge of the Supreme Court the legislature is to be understood as exempting certain powers and in particular the power to order taxation of costs by the proper officer. This proposition might be thought to gain support from the earlier Elections Acts where the Elections Tribunal had "all the powers, jurisdiction and authority of the Supreme Court" and yet which made express reference to taxation of costs by the Taxing Officer of the Supreme Court in its Rules. The need to have done so may be explicable because the legislature provided with some particularity what the Judge constituting the Tribunal might have regard to in awarding costs. An upper limit was placed on the quantum of the costs which the Tribunal could award under that Act. The other tribunals to which reference has been made, not having been accorded the powers, jurisdiction and authority of a Judge of the Supreme Court can be distinguished on that ground. On a practical level, the power to order costs must one would think, carry with it the power to control the quantum of those costs. In some cases the Tribunal acting on information from the parties could no doubt make an order that the costs be in a specific sum. Whilst Judges of the Supreme Court review -- 13 of 18 -- 13 disputed bills of costs under the Costs Act of 1867, and by virtue of O.91 r.119, they do not as a general practice, tax bills of costs. Where the legislature has wanted to guide the basis of an award of costs where it has given a Tribunal constituted by a Judge of the Supreme Court all the powers, jurisdiction and authority of the Court it has done so expressly as with respect to the Elections Tribunal. In the case of the Medical Assessment Tribunal, by not expressly fettering the Tribunal's powers, the legislature may be taken to have intended that the Tribunal have power to order that the costs be taxed by the proper officer of the Supreme Court who is the Taxing Officer. Accordingly the answer to Question A is that the Taxing Officer of the Supreme Court of Queensland does have authority to tax a bill of costs directed to him pursuant to an order made by the Medical Assessment Tribunal. The second question referred to the Court by the Taxing Officer concerns the procedure to be followed by a party in whose favour a costs order has been made to have the matter brought before the Taxing Officer. By s.42(2) of the Medical Act no order made by the Tribunal and filed pursuant to s.42(1) is open to inspection by any person other than the parties but the Board may authorise the publication of the order in its absolute discretion. The Taxing Officer is concerned as to the application of s.42(2). The order for taxation made by the Tribunal is in my view sufficient authority for the Taxing Officer to inspect the file. Further, the "any person" -- 14 of 18 -- 14 referred to in s.42(2) does not include the proper officers of the Tribunal or of the Supreme Court controlled by the Tribunal. The provisions of O.91 as relevant will apply and in particular O.91 r.5 et seq. The appropriate procedure will be for the party in whose favour the costs order has been made by the Tribunal to file a bill of costs in taxable form with a miscellaneous file number in the Supreme Court. The Taxing Officer has the power to obtain any documents as are necessary for the purposes of taxation from the Medical Board pursuant to O.91 r.77. When the Taxing Officer has concluded the taxation the Taxing Officer may state the result in the form of an allocatur as provided for in O.91 r.116. Should execution in respect of costs be necessary then the appropriate procedure would be to present the allocatur to the Tribunal and seek a writ of execution. The answer to Question A is "yes". The answer to Question B is "pursuant to O.91 R.S.C. as appropriate". The parties have sought a certificate under s.15 of the Appeal Costs Fund Act 1973. That section provides: "15 (1) Where an appeal against the decision of a court - (a) to the Supreme Court; (b) to the High Court of Australia from a decision of the Supreme Court; (c) to the Queen in Council from a decision of the High Court of Australia given in an appeal from a decision of the Supreme Court; (d) to the Queen in Council from a decision of the -- 15 of 18 -- 15 Supreme Court, on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal. (2) Where an appeal is determined by the Queen in Council or the High Court of Australia the power conferred upon the Supreme Court by subsection (1) may be exercised by a Judge of the Supreme Court sitting in chambers. (3) Where an appeal against the decision of a court to a District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal." Both parties were concerned to uphold the power of the Tribunal to order that the costs be taxed in the Supreme Court. Is there then jurisdiction to grant a certificate on the hearing of a reference from a Taxing Officer? The word "court" is defined in s.4 to include any board or other body or person from whose decision there is an appeal to a superior court. "Appeal" includes any proceeding in the nature of an appeal. I have concluded that there is power in the Court to entertain a general reference from the Taxing Officer but is a reference in the nature of an appeal? Connolly J in George Comanos & Associates v. Fingold Resources Pty Ltd (No. 2) [1988] 2 Qd.R. 636 was concerned to decide if a hearing by the Chamber Judge pursuant to O.86 r.8 was in the nature of an appeal. The hearing was de novo, further evidence could be adduced and the Chamber Judge was not required to have regard to the manner in which the discretion had been exercised by the Master. His Honour was concerned whether a proceeding which did no more than correct an error of law within the Court itself and was -- 16 of 18 -- 16 not on appeal from another court could be regarded as being within s. 15. His Honour pointed out that the Full Court regularly granted certificates in respect of appeals from single Judges of the Court and both Court were the Supreme Court. He concluded that having regard to the evident purpose of s.15 that an appeal from a Master to a Judge in Chambers was within reach of the Appeal Costs Fund Act. The purpose of legislation such as the Appeal Costs Fund Act has been pronounced upon regularly, see Brisbane City Council v. Fero Enterprises Pty Ltd [1976] Qd.R. 332 and the cases mentioned therein. The purpose of the Fund is clearly not to provide legal assistance to parties in the broad sense, nor to promote litigation, but to relieve litigants from the costs of an appeal where the tribunal below acted upon a mistaken view of the law not encouraged or urged upon it by the party seeking the relief. In this case both parties urged upon the Taxing Officer that he had jurisdiction to proceed to tax the bill of costs brought in by Dr Cooke. He declined to do so and referred the question to the Court for decision. In my view, bearing in mind the purpose of the Appeal Costs Fund Act the present reference is sufficiently in the nature of an appeal to fall within s.15 of the Act. The matter was not without difficulty and I was assisted by the careful research of both parties. It is a proper case for an indemnity certificate to issue for the benefit of both parties. The orders are: 1. Answer to Question A: "Yes". -- 17 of 18 -- 17 2. Answer to Question B: "The party in favour of whom the costs order has been made by a Medical Assessment Tribunal to file a bill of costs in taxable form with a miscellaneous file number in the Registry of the Supreme Court and to proceed pursuant to O.91 R.S.C. as appropriate." 3. Further order that an indemnity certificate issue for the benefit of both parties pursuant to the Appeal Costs Fund Act. -- 18 of 18 --