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- Unreported Judgment
Nursing and Midwifery Board of Australia v Evans (No 2)  QCAT 292
Nursing and Midwifery Board of Australia
Occupational regulation matters
On the papers
Judge Suzanne Sheridan, Deputy President
Mr K MacDougall
Ms M Sidebotham
Mr A Urquhart
31 August 2016
“3. Pursuant to s 196(2)(b)(i) of the National Law, Mr Evans’ registration shall be subject to the following conditions:
PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS AND TRIBUNALS – OTHER MATTERS – where pursuant to s 196(2)(b)(i) of the Health Practitioner Regulation National Law Act 2009 (Qld) the Tribunal imposed a condition upon the respondent practitioner’s registration following the hearing of a disciplinary referral – where the parties by consent sought a variation of that order pursuant to s 133 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether the Tribunal’s original orders should be varied
PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS AND TRIBUNALS – COSTS – where the Tribunal’s power to award costs is conferred by s 100 and s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where the Board seeks its costs – where the practitioner made an offer of settlement – where the Board failed to respond to the offer – where the practitioner seeks his costs from the date of the offer – whether the interests of justice require the Tribunal to make an order for costs
Health Practitioner Regulation National Law Act 2009 (Qld), s 195 and s 196
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 61, s 100, s 102 and s133
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86 and r 89
Medical Board of Australia v Rall (No 2)  QCAT 229, cited
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- The Queensland Civil and Administrative Tribunal (Tribunal) gave its substantive decision in this matter on 9 June 2016. Included in the order of the Tribunal was an order made pursuant to s 196(2)(b)(i) of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law). An application has been filed by the Nursing and Midwifery Board of Australia (Board) seeking variation of that order. By consent, the parties have agreed the terms of the varied orders.
- The orders made by the Tribunal included an order that “pursuant to s 146(2)(b)(i) of the National Law, Mr Evans’ registration shall be subject to the condition that he continues psychological counselling for a period of 12 months.” In its application for miscellaneous matters, the Board has said that the Tribunal has not:
- Decided a review period for the conditions as required by s 196(3) of the National Law; or
- Stated, pursuant to s 127(3)(b) of the National Law, that Subdivision 2, Division 11, Part 7 of the National Law applies.
- In subsequent correspondence, the Board has identified that the miscellaneous application is brought pursuant to s 133 of the QCAT Act. That section applies if, amongst other things, there are problems “interpreting, implementing or enforcing the tribunal’s final decision in a proceeding.”
- An application by a party under s 133 is to be made in a form substantially complying with the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules), and made within the period stated in the QCAT Rules. Rule 89 of the QCAT Rules provides that an application under s 133 is to be made within 28 days after the relevant day. “Relevant day” is defined to mean the day the parties are given notice of the decision.
- Section 61 of the QCAT Act, however, gives to the tribunal power to extend a time limit under the Act. Given the problems which have been identified by the Board with respect to the orders made and the acceptance by Mr Evans of those problems, this is clearly a case where clarification of the decision made is necessary. In those circumstances, it is appropriate that the Tribunal grant any extension of time required to enable the application to be made and any necessary corrections to be made to the final decision.
- In bringing the matter to the attention of the Tribunal, the Board with the consent of Mr Evans, has proposed amended conditions.
- The proposed amended conditions include a review period for the condition. Given the broad power conferred upon the tribunal by s 196(2)(b) of National Law, the requirement in s 196(3) that the tribunal impose a review period whenever it imposes a condition is curious, particularly given that the Tribunal in this case had stated:
The Tribunal considers it is important that [Mr Evans] continue such treatment as is recommended by his treating psychologist for the next 12 months.
There was no intention that the condition should remain in place beyond the stated 12 month period.
- However, the Tribunal accepts that the wording of s 196(3) requires that whenever the tribunal imposes a condition, it must also decide a review period. Both parties have agreed the section requires such a period to be stipulated. Both parties have also agreed that period should be 12 months. Given that the condition was to be imposed for 12 months, the Tribunal accepts a review period of 12 months is appropriate.
- Further, given that a review period is required to be imposed, it is appropriate that review be conducted by the National Board; rather than requiring the parties to make further application to this Tribunal.
- In the circumstances, pursuant to its power under s 133, the Tribunal will amend its decision given on 9 June 2016 to incorporate into the terms of its decision the proposed amended orders of the parties. A copy of the renewed decision will be provided to each party.
- At the time of making its decision on 9 June 2016, the Tribunal requested the parties make written submissions on the question of costs.
- On behalf of the Board, it was submitted that Mr Evans should pay the Board’s costs. On behalf of Mr Evans, it was submitted that given the without prejudice offer made to the Board, each party should bear its costs to the date of the offer, and thereafter the Board should pay his costs; though it is unclear as to whether it was being submitted that it should be his costs on an indemnity basis. Alternatively, it was submitted on behalf of Mr Evans that each party should bear their own costs of the entire proceedings.
- In this case, it is accepted by the parties that the Tribunal’s power to award costs is pursuant to the QCAT Act and not under the National Law. The current proceedings were filed after the commencement of the Health Ombudsman Act 2013 (Qld). That Act resulted in the removal of s 195 of the National Law which conferred on the Tribunal a general discretion “to make any order about costs it considers appropriate for the proceedings”.
- It is also accepted by the parties that under the QCAT Act, the starting position is that each party should bear their own costs, unless otherwise provided in the QCAT Act, or by an enabling act, or unless the interests of justice requires it to make an order for costs.
- On behalf of the Board, counsel submitted that the “interests of justice” required a departure from the general rule. Counsel referred to the nature and complexity of the proceeding, the financial circumstances of the applicant being entirely funded by registration fees paid by its registrants, and the late clarification by Mr Evans of the issues in dispute. Having regard to those matters, the Board said it is entitled to its costs.
- In making submissions on behalf of Mr Evans, reliance was placed on the “without prejudice save as to costs” offer made to the Board on 18 December 2015. The offer of 18 December 2015 was in response to the Board’s “without prejudice save as to costs” offer made on 26 October 2015. The offer made on behalf of Mr Evans was not responded to by the Board. That offer was stated to be open for acceptance until Wednesday, 13 January 2016, it being noted in the terms of the offer that Mr Evans’ submissions on sanction were due to be delivered by 4:00pm on Friday, 15 January 2016. It was submitted that the orders made by the Tribunal resulted in a less severe sanction than that in fact offered by Mr Evans. In reliance on rule 86 of the QCAT Rules, counsel for Mr Evans submitted that the Board should pay Mr Evans’ costs incurred after 18 December 2015.
- In making its submissions, the Board relied upon the various subsections of s 102(3) of the QCAT Act, to which regard is to be had in deciding whether the “interests of justice” require an award of costs. The Board in particular relied upon s 102(3)(b), which refers to the nature and complexity of the dispute. The Board referred to the complexity of the issues raised and the fact that each party considered it appropriate to be represented by Queen’s Counsel. The Board referred to the nature of the proceedings involving a referral for misconduct and the need, even when the misconduct was admitted, for the ultimate sanction to be determined by the Tribunal.
- The case clearly raised for consideration the relationship between mental illness and misconduct. The reports of both Mr Hanson and Dr Chung, filed on behalf of Mr Evans, refer in some detail to the relationship between Mr Evans’ mental illness and his offending conduct.
- There is much in the submission that the nature and complexity of this case justifies the making of a cost order.
- In seeking its costs, the Board also referred to the financial circumstances of the Board, being funded by the registration fees paid by registrants. That fact on its own would not justify the exercise of the discretion “in the interests of justice”; however, the position of the Board as a prosecuting body is undoubtedly a relevant matter.
- In previous decisions of the tribunal,it has been observed that matters relating to disciplinary proceedings differ markedly from general civil disputes. There is no doubt when matters are referred to the tribunal by the Board, the Board is acting as the body entrusted with the maintenance of appropriate conduct by its practitioners, and it may incur considerable expense in investigating and prosecuting matters.
- As against these matters which work in favour of an order for costs to the Board is the fact that Mr Evans substantially admitted at an early stage the matters of misconduct for which he was held liable. Further, the Board was substantially unsuccessful in its contentions which were not admitted by Mr Evans.
- Under the previous cost regime, the tribunal has recognised factors that may impact the making of a costs order in favour of the Board as the prosecuting body, including the conduct of the parties during the litigation, or the failure of the Board on particular issues.
- In this case, the real question is the nature of the cost order given the offers exchanged between the parties.
- In making its submissions on costs, the Board made no direct reference to the offers. The Board did submit, however, that the opinion of Dr Chung had been clarified very late; it was submitted at best not until 1 March 2016, and at worst on 4 March 2016, when Dr Chung gave oral evidence.
- The original reports of Mr Hanson and Dr Chung were obtained in June 2015 and July 2015 respectively and were provided to the Board, at latest, as an annexure to the affidavit of Mr Evans filed in November 2015.
- The Tribunal’s view is that the opinion of Dr Chung as the independent psychiatrist was made very clear in his July 2015 report. One particularly relevant passage of his report, where Dr Chung is responding to particular questions he was asked to consider, is set out at paragraph 29 of the decision of the Tribunal in these terms:
Mr Evans’ judgment and conduct was significantly impaired and was affected by the consequences of his grief, depression and anxiety caused by the circumstances leading to the suicide of his wife, and his failure to address his grief and depression due to the intervening period.
- In addressing the issue of Mr Evans’ initial response to the notification, which had involved him providing misleading information to the Board, Dr Chung said he believed that response “was also a reflection of his impaired judgment arising from his depression and the death of his wife.” Dr Chung continued:
It is common knowledge that depression can affect one’s insight and judgment, and the decision making process can be severely impaired during periods of extreme stress and depression. It is evident from the documents provided and from Mr Evans’ own recollection of the events, that he was not making decisions logically and insightfully.
- By way of summary, Dr Chung said that:
Mr Evans had a period of adjustment disorder, complicated grief and depressive disorder during the period of suspension from his employer at the Gold Coast Hospital after his wife’s death and during the period of time that he was involved with [the patient].
- Despite the reports the Board still remained unconvinced, as was made clear from the cross-examination of Dr Chung by Mr Campbell QC, as counsel for the Board. Mr Campbell QC, obviously on instructions, insisted to Dr Chung that Mr Evans “was able and did understand the difference between the correctness of his actions as a professional and those he engaged in.” As would be expected from the terms of his July 2015 report, Dr Chung did not agree.
- Even after Dr Chung’s confirmation of his earlier position under cross-examination, the Board’s position in its final oral submissions remained unchanged.
- Given the July 2015 report of Dr Chung, it is difficult to agree with the statement made in the Board’s submissions on costs that “the exceptional and unique mitigating circumstances in this matter were really only made clear on the provision of Dr Chung’s oral evidence.” It is the Tribunal’s view that the oral evidence of Dr Chung simply reiterated the position which he had stated in his July 2015 report; albeit that the language used perhaps gave even greater clarity to the interplay between mental illness and impaired decision making. The position of Dr Chung was nevertheless clear by the time of the offer made on behalf of Mr Evans on 18 December 2015.
- The Board had the necessary information by that date to give due consideration to the offer and accept the offer. They did not, and ultimately the Tribunal accepted the evidence of Dr Chung and imposed a sanction which was a lesser sanction than that contained in Mr Evans’ offer.
- The real difficulty in considering the impact of the offer in terms of rule 86 is that, given the nature of the proceedings, the ultimate sanction is a matter which had to be determined by the Tribunal. The parties would have been required to make submissions on sanction in any event.
- Any injustice in applying rule 86 in these circumstances, however, can be avoided if the costs order in favour of Mr Evans does not include the costs of the submissions on sanction made on his behalf, but otherwise includes all the costs incurred by him after the making of the offer, and if the costs order is limited to standard costs, rather than extended to indemnity costs.
- Taking all relevant matters into account, the appropriate cost order to be made is as follows:
- For the period up to the making of the offer on 18 December 2015, each party is to bear their own costs; and
- For the period from the making of the offer on 18 December 2015, the Board is to pay the costs of Mr Evans on the District Court Scale as agreed, or in default of agreement, as assessed, excluding the costs of the written submissions made on 15 January 2016.
QCAT Act, s 133(1)(b).
QCAT Act, s 133(3).
Schedule to the QCAT Rules.
Nursing & Midwifery Board of Australia v Evans  QCAT 77, at .
QCAT Act, s 100 and s 102.
Medical Board of Australia v Rall (No 2)  QCAT 229, at .
Ibid, at . See also Rudge v Nursing and Midwifery Board of Australia  QCAT 226, at .
The Board’s submissions on costs refer to these dates as being 1 March 2015 and 4 March 2015, respectively but the dates clearly must be 1 March 2016 and 4 March 2016.
- Published Case Name:
Nursing and Midwifery Board of Australia v Evans (No 2)
- Shortened Case Name:
Nursing and Midwifery Board of Australia v Evans (No 2)
 QCAT 292
31 Aug 2016