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Broadbent v Medical Board of Australia

 

[2019] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION:

Broadbent v Medical Board of Australia [2019] QCA 139

PARTIES:

MICHAEL RUSSELL MARK BROADBENT

(applicant)

v

MEDICAL BOARD OF AUSTRALIA

(respondent)

FILE NO/S:

Appeal No of 3106 of 2018

QCAT No 314 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act
Miscellaneous Application – Civil

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – [2018] QCAT 25 (Horneman-Wren SC DCJ)

DELIVERED ON:

16 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2018

JUDGES:

Fraser and Philippides JJA and Bond J

ORDERS:

  1. The application for leave to appeal is dismissed.
  2. The application to adduce evidence in the proposed appeal is dismissed.
  3. The applicant is to pay the respondent’s costs of both applications, including the costs incurred by the respondent in relation to the applicant’s proposed appeal.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – OTHER MATTERS – where the applicant gave an undertaking inter alia to permanently retire from medical practice and never to re-apply for registration as a medical practitioner in Australia – where the applicant subsequently applied for, but was denied, re-registration as a medical practitioner and appealed that decision to the Queensland Civil and Administrative Tribunal – where the primary judge struck out the appeal on the ground that it was vexatious and an abuse of process – whether the primary judge erred in striking out the appeal

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – where the applicant sought to adduce further affidavit evidence which was substantially argumentative rather than factual – where the evidence pertained to separate finalised proceedings – where there was no explanation as to why the evidence was not previously adduced or capable of being adduced – whether leave to adduce the evidence ought to be granted

Health Practitioner Regulation National Law Act 2009 (Qld)

Health Practitioners (Professional Standards) Act 1999 (Qld) (repealed), s 241

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited

Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] UKHL 13, cited

International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319; [2009] HCA 49, cited

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32, cited

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, applied

COUNSEL:

The applicant appeared on his own behalf

C Wilson for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Moray and Agnew Lawyers for the respondent

  1. [1]
    FRASER JA:  The applicant formerly held specialist registration as a surgeon in Queensland and New South Wales.  Registration of medical practitioners in Queensland is regulated by the Health Practitioner Regulation National Law (Queensland) (the “National Law”), which is a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld).  Section 6 of that Act declares that the Queensland Civil and Administrative Tribunal (“QCAT”) is “the responsible tribunal” for Queensland for the purposes of the National Law.  QCAT is therefore an “adjudication body” as defined in s 5 of the National Law.
  2. [2]
    In June 2010 QCAT determined that unsatisfactory professional conduct had been established against the applicant in relation to aspects of his treatment of two patients.  The applicant’s application for leave to appeal to this Court against that decision was dismissed.[1]  In September 2010 QCAT made orders requiring: (1) the applicant to undertake to retire permanently from medical practice, never to re-apply to the National Board for the Health Profession for registration in Australia as a practising medical practitioner, and not to seek to be relieved of that undertaking, and (2) that details of that undertaking be recorded in the Board’s register for the period it was in force.  There was no appeal against or application for a stay of those orders.
  3. [3]
    In January 2014 the applicant applied to the Medical Board of Australia for general registration as a medical practitioner.  That board is a “National Board” established by s 31 of the National Law.  Section 205 of the National Law obliges a National Board to give effect to a decision of an adjudication body unless the decision is stayed on appeal.  Section 52(1)(d) of the National Law imposes a condition of an individual’s eligibility for general registration in a health profession that “the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession”.  In June 2014, the Board determined to refuse the applicant’s application for registration.  The stated reason for that decision was that the applicant sought to revisit QCAT’s decision of September 2010 and under s 52(1)(d) of the National Law the applicant was not eligible to hold general registration because the order made by the Tribunal in September 2010 disqualified him from applying for registration.
  4. [4]
    Under s 199(1)(a) of the National Law the applicant was entitled to appeal to QCAT against the Board’s decision to refuse to register the applicant.  The applicant commenced such an appeal in July 2014.  Section 9 of the Health Practitioner Regulation National Law Act required the appeal to be treated as a review of the Board’s decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”).
  5. [5]
    Section 47 of the QCAT Act empowers QCAT to order a proceeding to be dismissed or struck out if QCAT considers the proceeding is “frivolous, vexatious or misconceived”, “lacking in substance”, or “otherwise an abuse of process.”  The respondent applied to strike out the appeal pursuant to that section.  QCAT, constituted by Horneman-Wren DCJ, assisted by Dr Humphrey, Dr Evans and Mr Dahl, struck out the applicant’s appeal upon the ground that it was vexatious and an abuse of process.[2]  I will refer to that decision as the decision of “the primary judge” to distinguish it from other decisions of QCAT mentioned in these reasons.  The main ground of the primary judge’s decision was that the appeal was an abuse of process because it was brought for the purpose of re-litigating issues which had finally been determined in the disciplinary proceedings in QCAT and this Court’s decision refusing leave to appeal against QCAT’s decision that unsatisfactory professional conduct had been established against the applicant.
  6. [6]
    The applicant has applied in this Court for leave to appeal against the decision of the primary judge and for leave to adduce further evidence in the proposed appeal.  Those applications should be refused for the following reasons.

Background

  1. [7]
    I will refer first to the procedural history in a little more detail and to some related matters.
  2. [8]
    In 2007 and 2008 the Medical Board of Queensland referred to the Health Practitioners Tribunal disciplinary proceedings against the applicant in relation to his treatment of 13 patients.  The functions of that tribunal were subsequently conferred upon QCAT.  For ease of reference, I will refer to both as “the Tribunal”.  When the proceeding commenced in the Tribunal, the Medical Board of Queensland was the relevant registration authority.  It was replaced by the respondent as the relevant registration authority upon the commencement of the National Law on 1 June 2010.  Again for ease of reference, I will refer to both as “the Board” or “the respondent”.
  3. [9]
    In September 2009 the applicant, by counsel, applied for a permanent stay of the disciplinary proceedings in the Tribunal upon the basis that its prosecution had become unnecessary and an abuse of process.  The stated grounds for the application included that the applicant had indicated a preparedness to undertake that he would never seek registration as a medical practitioner.  The Tribunal refused the application.  The disciplinary proceedings were pursued to a hearing in relation to two patients, the proceedings in relation to the remaining eleven patients being left in abeyance for the time being.  The Tribunal was constituted by Wall DCJ, who was assisted by Dr Richardson, Dr Powell and Ms Bolland.  After a lengthy hearing, on 10 June 2010 the Tribunal decided that some of the allegations of unsatisfactory professional conduct had been established in relation to the treatment of the two patients.
  4. [10]
    Directions were given for a subsequent hearing on penalty and costs.  On 2 September 2010 the Tribunal held that the appropriate penalty was to require the applicant to give an undertaking under s 241(2)(d) of the Health Practitioners (Professional Standards) Act 1999 (Qld).  After hearing argument Wall DCJ stated that, the applicant having being found liable in the respects referred to in the Tribunal’s judgment and the Tribunal’s primary function being to protect the public interest, the matter of penalty could satisfactorily be resolved “by requiring the registrant under s 241(2) of the Health Practitioners (Professional Standards) Act to give an undertaking in the form in which I will hand to the parties and that there will also be an order under s 242(1)(b) as to the recording of that undertaking.”  Wall DCJ enquired of senior counsel who appeared for the applicant whether the applicant was prepared to give the undertaking which the Tribunal required him to give.  Senior counsel replied that he would have enquiries made.  Wall DCJ stated that for the sake of the public he would indicate the terms of the undertaking.  He then recited that undertaking.  The applicant’s senior counsel subsequently informed the Tribunal that “the registrant’s instructions are to give that undertaking.”
  5. [11]
    Wall DCJ then pronounced the following order:

Under s 241(2)(d) of the Health Practitioners (Professional Standards) Act the Tribunal requires an undertaking from Michael Russell Mark Broadbent in the following terms:

“I, Michael Russell Mark Broadbent, undertake that, the Tribunal having found that grounds for disciplinary action are established in the respects referred to by the Tribunal in its judgment delivered on 10 June 2010

  1. (i)
    I will retire permanently from medical practice;
  1. (ii)
    I will never reapply to the National Board for the Health Profession for registration in Australia as practising medical practitioner;
  1. (iii)
    I will not seek to be relieved of this undertaking.”

The registrant, having given that undertaking, I order under s 242(1)(b) of the Health Practitioners (Professional Standards) Act, that details of this undertaking be recorded in the Board’s register for the period for which the undertaking is in force.”

  1. [12]
    The Tribunal’s formal record of the decision is:

“IT IS THE DECISION OF THE TRIBUNAL THAT

The registrant having, pursuant to s 241(2)(d) of the Health Practitioners (Professional Standards) Act 1999, given an undertaking to the Tribunal in the following terms:-

[The undertaking is recited]

[D]etails of the undertaking be recorded in the Board’s register for the period for which the undertaking is in force pursuant to s 242(1)(b) of the Health Practitioners (Professional Standards) Act 1999.”

  1. [13]
    At that time the Health Practitioners (Professional Standards) Act 1999 (Qld) provided, in s 241, that if the Tribunal had determined that a ground for disciplinary action was established against a registrant who was registered at the time of the decision, the Tribunal must decide to do one or more of the matters set out in s 241(2), which included (paragraph (d)) “require the registrant to give the tribunal an undertaking”.  Section 242(1)(b) provided that “the tribunal must also decide … for a decision to enter into an undertaking with the registrant … whether details of the undertaking must be recorded in the board’s register for the period for which the undertaking is in force”.
  2. [14]
    The disciplinary proceedings concerning the remaining 11 patients were listed for a directions hearing on 26 November 2010.
  3. [15]
    On 7 July 2010 the applicant filed an application for leave to appeal to this Court from the decision of the Tribunal on 10 June 2010.  The Board subsequently contended, and the applicant denied, that before the hearing of that application the applicant had agreed to compromise his proposed appeal.  At the hearing the Board applied for declarations that on 11 October 2010 the applicant and the respondent had agreed to discontinue the applicant’s appeal and that the terms of that agreement required the applicant to discontinue the proceeding currently before the Court.  The Court accepted that there had been a compromise of the applicant’s proposed appeal but held that the compromise should not be enforced.  The findings made by the Court upon those issues included that:
    1. (a)
      The applicant “eventually and reluctantly” agreed to offer to compromise his application for leave to appeal by an email of 22 September 2010 from his counsel to the respondent’s counsel and solicitor, a term of which was “on Dr Broadbent’s undertaking already given to QCAT, all remaining referral notices are to be permanently stayed”[3].
    2. (b)
      In response to clarifications sought about that term by the respondent’s solicitor whether, if the applicant were to seek to be relieved of the undertaking in the future or otherwise seek review of it a permanent stay would be lifted, counsel for the applicant immediately replied “that the intention of the wording was to reflect that the stay was premised on the undertaking, so that if the undertaking was resiled from the respondent could apply to have the stayed lifted.”[4]
    3. (c)
      The applicant accepted that his counsel had actual authority to make the offer.[5]
  4. [16]
    The Court refused the applicant’s application for leave to appeal against the Tribunal’s decision of 10 June 2010 that the applicant had been guilty of unsatisfactory professional conduct in relation to the treatment the two patients, upon the ground that the applicant had failed to establish any arguable error in the Tribunal’s decision.[6]
  5. [17]
    On 4 January 2011 the applicant lodged an application in the Supreme Court for a review of the Tribunal’s decision and the conduct of the Board before and during the hearing of the charges against the applicant of professional misconduct.  The application was not accepted for filing upon the ground that leave had not been granted by the Court of Appeal for its filing.  On the same date the applicant filed an application in the Federal Court of Australia for judicial review of the Tribunal’s decision and the conduct of the respondent Board.  Judgment was given against the applicant on the ground that he did not have a reasonable prospect of successfully prosecuting the proceeding.[7]  Greenwood J concluded that the application was a “collateral attack on the decisions of QCAT and the Court of Appeal because, whilst the applicant abandoned at the hearing his application to review the decision of QCAT, he seeks to quash the “decisions” (conduct) of the Medical Board in instigating proceedings before QCAT and he seeks to have the matter of the prosecution taken against him remitted to QCAT for further consideration or alternatively remitted to the Supreme Court of Queensland.”[8]
  6. [18]
    On 22 March 2012 the Tribunal, constituted by Kingham DCJ, Deputy President of the Tribunal, refused an application by the applicant for an order that the Board pay his costs, assessed on an indemnity basis, in relation to disciplinary investigations and proceedings brought against him by the Board.[9]  Kingham DCJ noted that in the disciplinary proceedings against the applicant involving two of the 13 patients referred to the Tribunal, after the Tribunal made disciplinary findings against the applicant and after hearing from the parties about penalty and costs, the Tribunal accepted the applicant’s undertakings that he would retire permanently from medical practice, and never reapply for registration in Australia as a practising medical practitioner or seek to be relieved of his undertaking.[10]  Kingham DCJ also noted that the Tribunal granted the Board leave to withdraw the referrals relating to the remaining 11 patients after all avenues for appeal and any related proceedings were exhausted, upon the basis that, given the undertakings, the statutory function the Board was required to fulfil would not be furthered by maintaining those remaining proceedings.[11]
  7. [19]
    In a document headed “Issues with Queensland Medical Board/AHPRA”, which was lodged with the applicant’s application in January 2014 for registration as a medical practitioner, the applicant made many complaints about the conduct of the Board in relation to the disciplinary proceedings in the Tribunal, criticised the constitution of and process in the Tribunal, made a variety of other complaints, and contended that those proceedings “should not preclude my return to medical practice as undertakings were extracted from myself by means of the above corrupted process and corrupted findings.”
  8. [20]
    In a submission to the Board in March 2014 the applicant repeated and expanded upon those criticisms and stated:

“I resile from all former undertakings as they were made under undue duress and poor legal advice consequent to a torrent of false accusations and dubious evidence from the former and discredited Queensland Medical Board as is described hereafter.”[12]

  1. [21]
    In July 2014, in the form by which the applicant initiated his appeal against the decision of the Board to refuse his application for registration, the applicant described the orders he was asking the Tribunal to make as:

“1. The factual matters at the basis of the reasons given are to be established by due process.

  1. The matter of the Applicant’s registration be then reconsidered in the light of the re-established facts.”
  1. [22]
    The grounds of that appeal stated in that form contended that the decision was unreasonable in all of the circumstances, no reasonable person could have reached that decision, relevant considerations were not taken into account, irrelevant considerations were taken into account, undue weight was given to certain considerations, insufficient weight was given to other considerations, illogical or irrational or absence of logical process towards the relevant factual issues, and no further enquiries were made.

Summary of the primary judge’s reasons

  1. [23]
    It is useful next to summarise the primary judge’s extensive reasons for striking out that appeal.
  2. [24]
    After referring in detail to the content of the applicant’s application for registration and accompanying documents, and explaining why complaints made by the applicant lacked substance,[13] the primary judge observed that the applicant’s application for registration and his appeal to the Tribunal sought to challenge the earlier decision of the Tribunal in respect of the matter concerning the two patients.[14]
  3. [25]
    The primary judge referred to the applicant’s submissions to the Board about the undertakings he had given and the applicant’s opinions that he had “demonstrated a unconstitutionally constructed tribunal of fact and numerous errors in their determinations”, “unconstitutional departures from the principles of natural justice, due process and procedural fairness”, a “corrupted, unsound and unfair” determination which was “thereby flawed and highly questionable if not entirely ultra vires”, and that the undertaking was “proffered to the Tribunal in my absence” and because “the Tribunal imposed no penalty on myself” no greater penalty should be imposed.[15]  The primary judge concluded that the applicant’s submissions again demonstrated the extent of the attack which he made upon the earlier decision of the Tribunal and that the attack misrepresented the decision that had been made by the Tribunal in that, holding the applicant to his undertaking did not impose a greater penalty than was intended and deemed appropriate but instead enforced the very penalty intended that was deemed appropriate.[16]
  4. [26]
    The primary judge analysed the applicant’s lengthy affidavit dated 10 November 2014 and filed in the Tribunal.[17]  In the first substantive paragraph of the affidavit, the applicant stated that his affidavit was “about why I should be released from an undertaking made over six years ago to this Tribunal.”  The primary judge observed that the applicant had not applied to the Tribunal to be relieved of his undertaking.  The affidavit instead related to the Board’s application to strike out the applicant’s appeal from its decision to refuse the applicant’s application for registration on the grounds that the appeal was vexatious and an abuse of process.  At the centre of the Board’s application was the fact that the applicant’s application for registration was made in contravention of his undertaking never to make such an application.
  5. [27]
    For the following reasons the primary judge rejected submissions made by counsel who appeared for the applicant that the undertaking given to the Tribunal on 2 September 2010 was given without instructions:[18]
    1. (a)
      The applicant deposed in his affidavit of 10 November 2014 that when the penalty hearing was taking place he was piloting a ten passenger aircraft in the Northern Territory, his solicitor called “and briefly stated the QC needed me to give an undertaking not to resume practice”, the applicant was “not in a position to discuss such at that moment by very nature of the task I was performing, the time available and the quality of the mobile phone media in mid-flight” and after “ascertaining that this was merely a tactic until the appeal I instructed my Solicitor to ”do what is in my best interests”, and expected my Counsel to do just that.”
    2. (b)
      The applicant’s evidence that he gave those instructions after ascertaining that giving the undertaking was “merely a tactic until the appeal” was inconsistent with the applicant’s statement in his submission to the Board in May 2014, in response to the Board’s then proposal to refuse the application for registration, that volunteering a “life-time penalty was incomprehensible to me, but was explained later that such was merely a tactic pending the Appeal and the appeal would nullify the undertaking.”[19]
    3. (c)
      Both versions were inconsistent with a subsequent statement by the applicant in the same affidavit that the “‘tactics’ referred to by the QC via my solicitor were never explained to myself.”[20]
    4. (d)
      The applicant deposed that “following the “undertaking” and some 3 weeks short of the Appeal the Insurer also wanted to negotiate with the Board over trading my Appeal rights for withdrawal of other charges and pressurised me quite unconscionably to agree … matters raised without my consent or knowledge.”[21]  The applicant’s subsequent statement, that he “refused to engage in such horse-trading and plea bargaining’s just as I had rejected other suggestions by Solicitor and Counsel simply because I was not guilty of any unprofessional conduct and was not prepared ethically or morally to submit to lies”,[22] was inconsistent with:
      1. findings in the Court of Appeal based on the applicant’s own evidence that he had agreed to put the offer (which referred to his “undertaking already given to QCAT”), albeit “eventually and reluctantly”,[23] and
      2. the applicant having offered the same undertaking through his counsel on the first day of the disciplinary hearing in the Tribunal in support of the applicant’s application for a permanent stay based upon such an undertaking.[24]
    5. (e)
      The applicant did not adduce any evidence from the senior counsel or solicitor who represented him at the penalty hearing to support his contention that the undertaking was given without his instructions, or any evidence that the applicant had sought to obtain any such evidence.[25]
    6. (f)
      The applicant’s contention that the undertaking was given without his instructions did not accord with the record of the proceedings, which revealed that after the Tribunal had indicated that an undertaking in the stated terms was required and senior counsel had stated that enquiries would be made about whether the applicant was prepared to give the undertaking, there was a break in the proceedings and, upon their recommencement, senior counsel informed the Tribunal that his instructions were to give the undertaking.[26]
    7. (g)
      That the applicant would give such an instruction was consistent with him having offered such an undertaking through his counsel on the first day of the hearing in order to obtain a stay of the disciplinary proceedings.[27]
    8. (h)
      If the undertaking had been given to the Tribunal without the applicant’s instructions or as a mere tactic pending his appeal upon his understanding or belief that he would be relieved of it if the appeal succeeded, then given the applicant’s history of litigating all of the issues surrounding these matters, it was inconceivable that the applicant would not have raised the issues in his subsequent litigation in the Supreme Court of Queensland and the Federal Court.[28]
  1. (i)
    The applicant was a qualified lawyer and there was evidence that he remained a member of the Bar at the relevant time.  The unlikelihood that the applicant would have given instructions to give an undertaking merely as a tactic for an ulterior purpose and intending not to be bound by it, which would be a very serious matter for a member of the Bar, was a further reason to reject the applicant’s evidence that he did so.[29]
  1. [28]
    The primary judge discussed many other paragraphs of the applicant’s affidavit and concluded that, despite the applicant’s contention to the contrary, the affidavit and the appeal clearly amounted to a collateral attack upon the findings of the Tribunal in the disciplinary proceedings against the applicant:

“Much of the affidavit is simply a further rehearsal of those matters which Mr Broadbent had previously agitated and consistently sought to re-agitate in various jurisdictions.”[30]

  1. [29]
    The primary judge concluded:

“The short answer to all of these complaints is that he had the opportunity to put those matters.  If they were not put for forensic reasons, that is a decision made by him or on his behalf as to how to conduct the proceedings.  If he was denied by the Tribunal of the opportunity to make submissions, that would properly have been a matter to be raised on the appeal.  If the case was conducted contrary to his instructions, that too could have been raised on the appeal, as it was in relation to the failure to follow his instructions to withdraw his offer of compromise.

No matter which, if any, of those circumstances prevailed, they each demonstrate that having sought leave to appeal and having had that leave refused, it is not appropriate to allow those matters to now be raised in an appeal from a decision which he undertook he would never apply for and which can only be a collateral attack on the determinations of both the Tribunal and the Court of Appeal.”[31]

  1. [30]
    In relation to allegations made by the applicant concerning the penalties and costs hearings,[32] the primary judge concluded as follows:

“[Those matters] were identified and articulated in detail by Mr Broadbent prior to the hearing on penalty and prior to the application for leave to appeal.  To the extent that they were raised, particularly on the application for leave to appeal, they have been considered, decided upon, and leave refused.  To the extent that they were not raised, they could have been.”[33]

  1. [31]
    The primary judge accepted that an appeal against the refusal of the applicant’s application for registration was authorised by s 199 of the National Law, but considered that the legitimacy of the applicant’s purpose in appealing must be considered in light of the undertakings he had given to the Tribunal:

“What Mr Broadbent seeks in his appeal is a review of a decision which he undertook never to ask the Board to make.  Having asked the Board to make a decision in breach of his undertaking to the Tribunal, the Board made the only decision which was in keeping with the undertaking.  By his appeal from that decision, Mr Broadbent now asks (indirectly) the Tribunal to relieve him of his undertaking to it, again something which he undertook never to do.  He asks to be relieved of it by the Tribunal so as to facilitate a review by the Tribunal of the very decision of the Board which he undertook to the Tribunal never to ask the Board to make.”[34]

  1. [32]
    The primary judge concluded that the purpose of the appeal was illegitimate, but if there was a legitimate purpose of the appeal the evidence overwhelmingly established that the predominate purpose was to re-agitate all of the matters which the applicant previously had litigated in the Tribunal and the Court of Appeal and had attempted to re-litigate in other proceedings in various jurisdictions.[35]  The applicant sought to require the Board to re-litigate issues that had been determined years before he applied for registration despite having undertaken, upon the order of the Tribunal requiring that he do so, never to make such an application, on the basis of which undertaking and the applicant’s further undertaking that he would never seek to be relieved of it, the Board had withdrawn disciplinary proceedings in respect of another 11 patients.[36]
  2. [33]
    The primary judge held that the predominate purpose of the applicant’s appeal against the Board’s decision to refuse registration, the re-litigation of issues concerning the disciplinary proceedings as collateral attacks upon earlier decisions of the Tribunal and the Court of Appeal, was an abuse of process of the kind identified by Lord Diplock in Hunter v Chief Constable of the West Midlands Police[37] and by French CJ in Aon Risk Services Australia Ltd v Australian National University;[38] and the appeal was also vexatious, in the sense of “productive of serious and unjustified trouble and harassment”, as described by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay.[39]

The application for leave to appeal

  1. [34]
    The application for leave to appeal and the notice of appeal were filed out of time, but only by days.  The applicant has not filed an application for an extension of time, but that might be overlooked if it were appropriate to grant an extension.  The respondent contended that an extension of time should be refused because of the absence of any explanation for the delay.  As the respondent noted, the question whether there is any merit in the proposed appeal is an important consideration in deciding whether to extend time and, if so, in deciding whether leave to appeal should be granted.
  2. [35]
    It is not readily apparent how any decision other than the refusal of the applicant’s application for registration could be reconciled with the Board’s statutory obligation under s 205 of the National Law to give effect to orders made by QCAT (see [1] – [3] of these reasons).  Perhaps for that reason, the grounds of the applicant’s appeal to the Tribunal from the decision to refuse registration (see [22] of these reasons) are notable for the absence of any recognizable challenge to the reasons given by the Board for its decision to refuse the applicant’s application for registration.  None of those grounds articulate error in the reason given by the Board that the order made by the Tribunal in September 2010 disqualified the applicant from applying for registration.  The orders sought by the applicant in that appeal (see [21] of these reasons) are also unrelated to the ground of the Board’s decision; in particular, the only factual matter underlying the Board’s reasons was the uncontentious fact that the Tribunal had made the orders described in [2] of these reasons.
  3. [36]
    The content of the form by which the applicant initiated his appeal to the Tribunal is instead consistent with the primary judge’s finding that the applicant’s purpose in applying for registration and in appealing to the Tribunal was to re-agitate disciplinary proceedings concerning two patients previously litigated and finally determined in the Tribunal and the Court of Appeal years earlier, despite the applicant having undertaken, as required by order of the Tribunal, never to apply for registration or to be relieved of that undertaking, on the basis of which the Board had withdrawn disciplinary proceedings relating to another 11 patients.  That this was in fact the applicant’s purpose very clearly emerges from the applicant’s affidavit and his arguments.
  4. [37]
    In Walton v Gardiner[40] Mason CJ, Deane and Dawson JJ referred to the inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse in “all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness” and, after mentioning examples of such abuses, stated:

“Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.  The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.”

  1. [38]
    Hunter v Chief Constable of the West Midlands Police[41] concerned an appeal against an order that statements of claim by plaintiffs alleging that they had been assaulted by police officers be struck out as abuses of process because at a previous criminal trial the trial judge had rejected the plaintiffs’ allegations that their admissions were rendered involuntary by reason of the assaults of which they subsequently complained in the civil proceeding.  Lord Diplock said that the case exemplified an abuse of process by the initiation of proceedings in a court “for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which is was made.”[42]  In International Finance Trust Company Limited v New South Wales Crime Commission[43] Heydon J quoted that statement with approval.
  2. [39]
    As the expressions “frivolous, vexatious or misconceived”, “lacking in substance”, or “otherwise an abuse of process” in s 47 of the QCAT Act suggest, that section confers upon the Tribunal a statutory power analogous to the inherent power of a superior court to strike out proceedings of a kind that are regarded in such a court as an abuse of process.  The primary judge appropriately acted upon that basis in concluding that the predominant purpose of the applicant’s appeal, to re-litigate issues concerning the disciplinary proceedings as collateral attacks upon earlier decisions of the Tribunal and the courts, was an abuse of process such as is described in s 47.
  3. [40]
    The grounds stated in the applicant’s draft notice of appeal in this Court are:

“1. Denial of Natural Justice & Due Process

  1. Reopening of a prior Hearing was denied
  1. Opportunity to adduce fresh exculpatory evidence was denied
  1. Opportunity to adduce former exculpatory evidence previously denied was again refused
  1. No reasonable person/Regulator or Tribunal would have denied a litigant the opportunity to adduce relevant evidence
  1. The Tribunal misdirected itself on the laws pertaining to Undertakings
  1. The Tribunal took more than three years to make a determination
  1. Departures from Tribunal procedure, practice and accepted jurisdiction were errors of law.”
  1. [41]
    The applicant’s argument does not explain how the primary judge’s delay in making the decision against which the applicant seeks to appeal (ground 7) might constitute a ground for overturning that decision.  This is not a case in which oral evidence was given and nor is there any ground for thinking that the primary judge’s detailed and careful reasons overlook any point made on behalf of the applicant.  Ground 8 contains no particulars of the suggested errors of law.  As to the contention in ground 6 that the primary judge misdirected himself about the laws pertaining to undertakings, the applicant argued that the circumstances were irregular and the primary judge should have addressed the penalty issue.  Why that might be so is not apparent.  Again, no particulars are given.  The remaining grounds of appeal – grounds 1, 2, 3 and the two grounds numbered 4 – are consistent with the primary judge’s description of the applicant’s purpose in appealing against the Board’s decision to refuse his application for registration.
  2. [42]
    In the applicant’s outline of submissions concerning leave to appeal lodged on 15 May 2018, the applicant explained that the proposed appeal focused upon two “mandatory issues of the natural justice provisions in the Statute”:

“A. The question of hearing the evidence as to the cause of death of both pat[i]ents under scrutiny by the Tribunal, evidence that was specifically denied at the original hearing following a motion by the Board – such motion and subsequent denial by the Tribunal now identified as breaches of the statutory provisions of natural justice and due process and specifically breaches of s 219 (1) (a) and of 219(1) (d) of [Health Practitioners (Professional Standards) Act].  There was also fresh evidence discovered in the interim that needed to be heard.

B. The question of the validity of the purported undertaking offered to the Tribunal in lieu of a penalty (in the absence of the Registrant), and thus the propriety of the said undertaking being accepted by the Tribunal and then converted into an Order – such being now identified as being contrary to the provisions of the Statute.”[44]

  1. [43]
    The outline developed an argument about question A to the effect that the primary judge should have taken into account a suggested denial of natural justice by the Tribunal in not allowing reference to evidence about the causes of death of the two patients.  In relation to question B, the outline developed an argument which was critical of the Tribunal in accepting the undertaking and to the effect that the undertaking was not authorised, was excessive, and exceeded the powers of the Tribunal.  The outline contended that there were “potential breaches of the Australian Constitution by a series of administrative and legal errors that have violated the property rights of the Appellant”, including a contravention of s 51(xxxi) of the Constitution.[45]
  2. [44]
    Those arguments are again consistent with the primary judge’s finding about the applicant’s purpose in appealing against the Board’s decision.  Those arguments do not suggest any error in the main ground of the primary judge’s decision, that the applicant’s appeal against the Board’s decision was an abuse of process.
  3. [45]
    In an “appeal outline” filed on 5 June 2018, the applicant’s purpose in bringing the appeal of re-litigating issues litigated and determined in 2010 was made clear in paragraph 2:

“The Appeal was precipitated by the Respondents refusal to re-Register the Appellant.  The Appellant in exercising his rights under the Division 4 of the [Health Practitioners (Professional Standards) Act] had requested the Tribunal to re-open the hearing to hear matters of fact and circumstances that would:

  1. (a)
    have exculpated the Appellant but had been denied being ventilated by the former Tribunal; and
  2. (b)
    review the resultant Penalty Ordered; and
  3. (c)
    correct the jurisdictional and other errors of the previous Tribunal.”
  1. [46]
    That this is the purpose of the proposed appeal to this Court is again confirmed by the applicant’s submissions[46] that:

“Any legal submission that identifies errors of law of failures of natural justice and due process in an earlier proceeding cannot be characterised as vexatious.  This decision is thus an error of law since it is based on illogical reasoning which ignored the statutory departures from the [Health Practitioners (Professional Standards) Act] and other illogicalities which the Tribunal should have identified as absurdities.

The Appellant in his quite extensive documents had properly and clearly identified fact and circumstance in the initial hearing that when examined judicially should have been characterised as judicial errors and errors of law – had the Tribunal applied the law to those facts.”

  1. [47]
    During the applicant’s oral submissions in support of his application for leave to appeal, the Court asked for a submission about the primary judge’s decision that his appeal to the Tribunal was an abuse of process primarily because the applicant was seeking to re-litigate matters that had previously been litigated and determined against him by the Tribunal and the Court of Appeal.  The applicant submitted in response that, “there was evidence which was omitted from … that hearing on the motion of the then Medical Board, and that was upheld by the Tribunal, and that … motion actually caused a significant miscarriage”.[47]  The applicant also submitted that he had “discovered subsequently that the undertaking had been converted to an order … that prevented … my application to be re-registered.”[48]  The applicant reiterated submissions he had made in the Tribunal to the effect that he had not given instructions, or informed instructions, for the undertaking offered by senior counsel on his behalf in 2010.  Those arguments did not grapple with the primary judge’s persuasive reasoning for rejecting much the same arguments (see [27]–[32] of these reasons).
  2. [48]
    The applicant has not demonstrated any arguable error in the primary judge’s decision to strike out the applicant’s appeal to the Tribunal upon the ground that it was an abuse of process as described in s 47 of the QCAT Act, being closely analogous with the abuse of  process described in Hunter v Chief Constable of the West Midlands Police as “a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which is was made.”

The application to adduce evidence in the proposed appeal

  1. [49]
    The evidence which the applicant applied to adduce in his proposed appeal to this Court comprises five affidavits by him.  The respondent did not oppose the Court referring to four of those affidavits[49] if those affidavits, which are substantially argumentative rather than factual, were treated only as containing arguments upon which the applicant relies.  Those arguments were mostly addressed to what the applicant submitted were errors made in the disciplinary proceedings against him.  In any event, they add nothing of substance to the arguments articulated by the applicant in his outline of argument.  Although I have taken the arguments into account, it would be inappropriate to grant leave to adduce the affidavits as evidence in the appeal.
  2. [50]
    The respondent opposed the admission in evidence of a different affidavit by the applicant,[50] which exhibits a transcript of day 6 of the hearing in the Tribunal in September 2009.  The applicant deposed, with reference to that transcript, that “vital evidence to the likely causality of death of a patient was suppressed by motion of the prosecuting Medical Board”, and he elaborated upon his arguments about the effect of this alleged suppression of evidence.  The affidavit therefore supplies further support for the primary judge’s conclusion that the applicant’s purpose in appealing against the refusal of his registration is to re-litigate issues that were or might have been litigated in the proceedings in the Tribunal or in his application for leave to appeal from the decision of the Tribunal.  Furthermore, to the extent that the evidence in this affidavit was not adduced before the primary judge, the affidavit does not explain why it was not adduced or establish that it could not have been adduced by the exercise of due diligence.  In these circumstances leave should not be granted to adduce that affidavit as evidence in the appeal.

Disposition and orders

  1. [51]
    There being no merit in the application for leave to appeal, the extension of time which the applicant requires to bring that application should not be granted.  Because the applicant has not filed an application for an extension of time, the appropriate orders are:
  1. (a)
    The application for leave to appeal is dismissed.
  2. (b)
    The application to adduce evidence in the proposed appeal is dismissed.
  3. (c)
    The applicant is to pay the respondent’s costs of both applications, including the costs incurred by the respondent in relation to the applicant’s proposed appeal.
  1. [52]
    PHILIPPIDES JA:  I agree with the reasons of Fraser JA and the orders proposed by his Honour.
  2. [53]
    BOND J:  I agree with the orders proposed by Fraser JA, and with his Honour’s reasons therefor.

Footnotes

[1]Broadbent v Medical Board of Queensland [2010] QCA 352.

[2]Broadbent v Medical Board of Australia [2018] QCAT 25.

[3][2010] QCA 352 at [8].

[4][2010] QCA 352 at [9].

[5][2010] QCA 352 at [21].

[6][2010] QCA 352 at [83], with reference to [43] – [83].

[7]Broadbent v Medical Board of Queensland (2011) 195 FCR 438.

[8](2011) 195 FCR 438 at 483 [212].

[9]Medical Board of Australia v Broadbent [2012] QCAT 120.

[10][2012] QCAT 120 at [3].

[11][2012] QCAT 120 at [5].

[12]Reasons on page 1 of that submission, which is exhibit CTH-23 to the affidavit of Christine Houston of 31 October 2014, referred to in paragraph 33 of that affidavit.  This is the submission referred to in [96] of the primary judge’s reasons.

[13][2018] QCAT 25 at [70] – [127].

[14][2018] QCAT 25 at [128].

[15][2018] QCAT 25 at [132].

[16][2018] QCAT 25 at [133].

[17][2018] QCAT 25 at [134] – [193].

[18][2018] QCAT 25 at [194] – [201].

[19]Paragraph (g) on page 19 (AB 818) of the applicant’s submission to AHPRA of 14 May 2014, referred to at [2018] QCAT 25 at [156].  The underlining was added by the primary judge.

[20]Affidavit of 10 November 2014 at paragraph 56, [2018] QCAT 25 at [156].

[21]Affidavit of 10 November 2014 at paragraph 48.

[22]Affidavit of 10 November 2014 at paragraph 49.

[23][2018] QCAT 25 at [159].

[24][2018] QCAT 25 at [160].

[25][2018] QCAT 25 at [195].

[26][2018] QCAT 25 at [196].

[27][2018] QCAT 25 at [197].

[28][2018] QCAT 25 at [198].

[29][2018] QCAT 25 at [199] – [201].

[30][2018] QCAT 25 at [149], with reference to [136] – [148], [150] – [174].

[31][2018] QCAT 25 at [175] – [176].

[32][2018] QCAT 25 at [177] – [191].

[33][2018] QCAT 25 at [192].

[34][2018] QCAT 25 at [211].

[35][2018] QCAT 25 at [213].

[36][2018] QCAT 25 at [224].

[37][1982] AC 529.

[38](2009) 239 CLR 175 at 193 [33].

[39](1988) 165 CLR 197 at 247.

[40](1993) 177 CLR 378 at 393.

[41][1982] AC 529.

[42][1982] AC 529 at 541.

[43](2009) 240 CLR 319 at 383 [147].

[44]Paragraph 5 of the outline on pages 2 – 3.

[45]Paragraph 8 of the outline.

[46]Appeal outline paragraphs 4A – 4B.  Emphasis added.

[47]Transcript 26 July 2018 at 1-3 – 1-4.

[48]Transcript 26 July 2018 at 1-4.

[49]Court documents 5, 6, 7 and 10.

[50]Court document 9.

Close

Editorial Notes

  • Published Case Name:

    Broadbent v Medical Board of Australia

  • Shortened Case Name:

    Broadbent v Medical Board of Australia

  • MNC:

    [2019] QCA 139

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Philippides JA, Bond J

  • Date:

    16 Jul 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment - 01 Jun 2014 Mr Broadbent's application to the Medical Board of Australia for general registration as a medical practitioner refused.
Primary Judgment [2018] QCAT 25 16 Feb 2018 Mr Broadbent's appeal against the Medical Board's determination struck out pursuant to s 47 of the the Queensland Civil and Administrative Tribunal Act 2009 (Qld): Horneman-Wren SC DCJ.
Appeal Determined (QCA) [2019] QCA 139 16 Jul 2019 Application for leave to appeal refused; application to adduce evidence in the proposed appeal refused: Fraser and Philippides JJA and Bond J.
Special Leave Refused [2019] HCASL 308 10 Oct 2019 Special leave refused: Nettle and Gordon JJ.

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)