Broadbent v Medical Board of Australia
[2022] QCA 46
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- Unreported Judgment
- Broadbent v Medical Board of Australia[2022] QCA 46
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Broadbent v Medical Board of Australia[2022] QCA 46
Broadbent v Medical Board of Australia[2022] QCA 46
SUPREME COURT OF QUEENSLAND
CITATION: | Broadbent v Medical Board of Australia [2022] QCA 46 |
PARTIES: | MICHAEL RUSSELL MARK BROADBENT (applicant) v MEDICAL BOARD OF AUSTRALIA (respondent) |
FILE NO/S: | Appeal No 11131 of 2021 DC No 242 of 2013 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Civil) |
ORIGINATING COURT: | District Court at Brisbane – [2021] QDC 189 (Richards DCJ) |
DELIVERED ON: | Date of Orders: 25 February 2022 Date of Publication of Reasons: 1 April 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 February 2022 |
JUDGES: | Morrison and Mullins and Bond JJA |
ORDERS: | Orders delivered: 25 February 2022
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the applicant has a long history of litigation involving the Medical Board of Queensland and its successor, the Medical Board of Australia – where a costs order was granted by the District Court of Queensland in favour of the wrong party, the Medical Board of Australia – where the District Court held that there was power to amend the order under r 388 of the Uniform Civil Procedure Rules 1999 (Qld), and that, in the circumstances, the order should be amended – where ultimately in the application before the Court of Appeal, it was accepted by the applicant that the decision below was merely an amendment to reflect the true position which had been advanced by him previously – whether application for leave to appeal should be granted Broadbent v Medical Board of Australia (2015) 241 FCR 419; [2015] FCA 717, cited Broadbent v Medical Board of Queensland (2011) 195 FCR 438; [2011] FCA 980, cited |
COUNSEL: | The applicant appeared on his own behalf S A McLeod QC, with R M De Luchi, for the respondent |
SOLICITORS: | The applicant appeared on his own behalf James Conomos Lawyers for the respondent |
- [1]MORRISON JA: Mr Broadbent has a long history of litigation involving the Medical Board of Queensland and its successor, the Medical Board of Australia. The current application, for leave to appeal under s 118(3) of the District Courts Act, is in respect of a decision by Richards DCJ, to amend a costs order of the District Court that was erroneously issued in the name of the Medical Board of Australia, when it should have been the Medical Board of Queensland.
Background
- [2]Mr Broadbent was a medical practitioner until disciplinary proceedings were brought against him by the Medical Board of Queensland (MBQ). The proceedings were heard by the Queensland Civil and Administrative Tribunal (QCAT).
- [3]A convenient summary of the background to this application can be found in the decision of Rangiah J in Broadbent v Medical Board of Australia:[1]
“[6] In 2007 and 2008, the Medical Board of Queensland started several disciplinary proceedings against the appellant before the Health Practitioners Tribunal pursuant to ss 125 and 126 of the Health Practitioners (Professional Standards) Act 1999 (Qld) (“the Professional Standards Act”). The Medical Board of Queensland alleged that Mr Broadbent had behaved in a way that constituted unsatisfactory professional conduct within s 124(1)(a) of the Professional Standards Act in relation to 13 patients in total.
[7] The allegations were principally concerned with the appellant’s treatment of his patients after he had performed major surgery to treat them for morbid obesity. The surgery involved reducing the size of the stomach, thereby limiting the quantity and consistency of food that could be tolerated.
[8] On 7 September 2009, the Health Practitioners Tribunal commenced a hearing concerning the appellant’s treatment of two of his patients, Mrs Ursula MacLeod and Mrs Margaret Pearce. On that day the Health Practitioners Tribunal dismissed an application for a permanent stay of the proceedings.
[9] On 1 December 2009, the Health Practitioners Tribunal was abolished and its jurisdiction was transferred to QCAT pursuant to ss 247 and 255 to 257 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”). The hearing recommenced before QCAT on 24 February 2010.
[10] On 10 June 2010, QCAT delivered its decision in respect of the disciplinary proceedings concerning the treatment of Mrs MacLeod and Mrs Pearce: Medical Board of Queensland v Broadbent [2010] QCAT 280. QCAT found that the appellant had behaved in a way that constituted unsatisfactory professional conduct. QCAT decided that his conduct was of a lower standard than might reasonably be expected of him by the public and his professional peers; and that he had demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of his profession.
[11] On 1 July 2010, a new uniform legislative scheme for the accreditation, registration and discipline of certain types of health practitioners in Australia, including medical practitioners, commenced. The operation of the transitional provisions in the Queensland legislation forming part of that scheme is central to the disposition of this appeal.
[12] On 7 July 2010, the appellant filed an application for leave to appeal to the Queensland Court of Appeal pursuant to s 149 of the QCAT Act. On 10 December 2010, the Court of Appeal refused the application for leave to appeal and ordered that the appellant pay the Medical Board of Queensland’s costs of the application: Broadbent v Medical Board of Queensland [2010] QCA 352.
[13] On 2 September 2010, QCAT conducted a hearing in relation to penalty and costs. The parties were legally represented and there was a contest as to costs. QCAT decided that the matter of penalty could satisfactorily be resolved by requiring the appellant to give an undertaking pursuant to s 241(2) of the Professional Standards Act to the effect that he would retire permanently from medical practice and would never reapply for registration as a medical practitioner.
[14] On 22 October 2010, QCAT issued the following decision (although it bears the date 2 September 2010):
DECISION | |
Case number: | HPF002-07 |
2962 of 2007, 976 of 2008 and 1189 of 2008 | |
Applicant: | Medical Board of Queensland |
Respondent: | Michael Russell Mark Broadbent |
Before: | Judge C.F. Wall Q.C. assisted by Dr P Richardson, Dr G Powell and Ms G Bolland |
Date: | 2 September 2010 |
Initiating Document: | Disciplinary Application – Health Practitioners (Professional Standards) Act 1999 |
IT IS THE DECISION OF THE TRIBUNAL THAT: | |
The Registrant pay 70% of the Applicant’s costs of the hearing (not including investigation costs) (but including the costs of two counsel) to be assessed on the standard basis unless agreed.” | |
- [4]The QCAT costs order was then the subject of enforcement by the Medical Board of Australia (MBA), which applied to the District Court for a Costs Assessment. After the costs had been assessed a Deputy Registrar of the District Court then made a costs order. That order was in favour of MBA.
- [5]That order became the basis of a bankruptcy notice issued by MBA. Mr Broadbent succeeded in having the notice set aside in the Federal Court. That was the decision of Rangiah J, referred to in paragraph [3] above.[2] Relevantly, the central findings were in paragraphs [68]-[69], [84]-[85] and [89]:
“[68] QCAT made its decision that the appellant pay part of the costs of the Medical Board of Queensland on 22 October 2010, after the transfer day of 1 July 2010. It is not disputed that the liability of the appellant to pay those costs was an asset of the Medical Board of Queensland. Accordingly, the asset became an asset of the National Agency pursuant to s 295 of the National Law (Qld). Any costs recovered will have to be paid into the account for the Medical Board of Australia kept within the Agency Fund.
[69] The appellant accepts that the District Court could validly have made orders that the Medical Board of Queensland’s costs be assessed and that the appellant pay the assessed costs to the Medical Board of Queensland. The appellant accepts that such costs if paid will become an asset of the National Agency and that either the National Agency or the Medical Board of Australia is entitled to enforce the order. However, the appellant argues that there was no basis for the District Court to order that he pay the assessed costs to the Medical Board of Australia.
…
[84] The question that arises is whether the Medical Board of Australia was a “party entitled to be paid costs” for the purposes of rr 705, 708, 710 and 740 of the UCPR.
[85] The Medical Board of Australia was not a party to the QCAT proceeding and was not named as a party in QCAT’s decision that took effect as an order of the District Court when filed. QCAT’s decision did not, on its face, require the appellant to pay any costs incurred by the Medical Board of Australia.
…
[89] I consider that there was no legislative basis for the Deputy Registrar to make the order of 20 February 2013 in favour of the Medical Board of Australia appointing a costs assessor under r 708 of the UCPR. In addition, there was no legislative basis for the Deputy Registrar to make the order of 14 January 2014 that the appellant pay a sum of money to the Medical Board of Australia. I emphasise that I do not intend any criticism of the Deputy Registrars, who did not have the benefit of the submissions belatedly made in this appeal.”
How did the MBA come to be named in the Order?
- [6]The uncontested evidence before the learned primary judge was that:
- (a)on 11 December 2012, a copy of the QCAT order, naming MBQ as the party in whose favour the order was made, was sent to the District Court with a request that it be filed; the subject line of the letter also correctly named MBQ as the relevant party;[3] and
- (b)then an affidavit was filed in the District Court, seeking the appointment of a costs assessor; that affidavit had the wrong heading in that it substituted MBA for MBQ; thereafter documents referred to MBA instead of MBQ.[4]
- (a)
- [7]The change was plainly a slip, based on the mistake made in the affidavit.
The proceedings below
- [8]The learned primary judge noted the history of the litigation, the decision of Rangiah J, and the fact that the naming of MBA in the order was the result of a slip. Her Honour framed the issue:[5]
“[22] Both parties accept that the Costs Order ought to have been made in favour of the MBQ. The crux of the issue thus becomes whether the Costs Order, ordered in favour of the incorrect party, the MBA, ought to be set aside, or whether it amounts to a mere irregularity and whether the correct party can therefore be substituted for the MBA pursuant to rr 69(1), 371(2) or 375 of the UCPR.”
- [9]Her Honour also found that the costs order in the District Court “should have been made to the benefit of MBQ”, and that Mr Broadbent “has previously conceded as much”.[6] That was an evident reference to the concessions made before Rangiah J, at a time when Mr Broadbent was represented by Senior and Junior Counsel.
- [10]Her Honour held that there was power to amend the order under r 388 of the Uniform Civil Procedure Rules 1999 (Qld), and that, in the circumstances, the order should be amended.
The present application for leave
- [11]Mr Broadbent sought leave to appeal against the orders, contending they are the result of error and without jurisdiction. He also applied to adduce further evidence, namely the transcript of the proceedings in QCAT, to demonstrate that it was MBA that appeared to seek penalties and costs, not MBQ.
Disposal of the applications
- [12]As will appear, there is no need to rehearse the contentions advanced in the outlines filed by Mr Broadbent.
- [13]In the course of submissions in this Court Mr Broadbent conceded that:
- (a)his submissions to this Court did not take account of the transitional provisions applicable when the statutory regime changed in July 2010;
- (b)the findings in two Federal Court decisions to which he was party, that of Greenwood J in Broadbent v Medical Board of Queensland[7] and that of Rangiah J in Broadbent v Medical Board of Australia,[8] were that the effect of the transitional provisions was that:[9]
- MBQ remained alive after the statutory changeover for the purpose of conducting the QCAT proceedings to finality, including appeals; and
- and MBQ did so under the Health Practitioners (Professional Standards) Act 1999 (Qld) which, for that purpose, remained in force;
- (c)
- (d)before Rangiah J he had conceded that the District Court could have validly made orders that MBQ’s costs be assessed and that they be paid by him to MBQ;[11]
- (e)before Rangiah J he had conceded that MBQ was entitled to an order that it be paid the costs;[12] and
- (f)the unchallenged finding of Rangiah J was that there was no legislative basis for the District Court to make the costs order in favour of MBA.[13]
- (a)
- [14]Having conceded those matters Mr Broadbent conceded he would not depart from the position he took before Rangiah J, and specifically that the QCAT costs order was in favour of MBQ, and the District Court could make its order in favour of MBQ.
- [15]Ultimately Mr Broadbent accepted that the decision below was merely an amendment to reflect the true position which had been advanced by him previously.
The application to adduce further evidence
- [16]Upon examination of the transcript which was sought to be adduced,[14] it became apparent that Mr Broadbent was under a misapprehension as to what occurred. He wished to establish that the lawyer appearing that day had appeared for MBA, not MBQ. Though missing the title page the transcript was of proceedings between MBQ and Mr Broadbent. When the lawyer announced that they appeared for the Board, Mr Broadbent wrongly thought it must be MBA because the changeover in the statutory regime had occurred. Once again that ignored the effect of the transitional provisions. The lawyer announced an appearance for the party, which was MBQ.
- [17]Furthermore, it became apparent that the “fresh” evidence was to support an attack on the penalties imposed by QCAT, an issue not alive before this Court.
- [18]On that basis the application to adduce further evidence was misconceived and must be dismissed.
Application to set aside the costs order
- [19]The applicant filed a separate application in the District Court seeking to set aside the original QCAT order awarding costs,[15] and the certificate of the costs assessor.[16] The learned primary judge rightly dismissed that application. Apart from anything else, it was hopelessly out of time by in excess of seven to ten years.
- [20]Although the application for leave to appeal to this Court only sought that the order made by the learned primary judge on 17 September 2021 be set aside, the draft notice of appeal annexed to the applicant’s affidavit[17] goes further and seeks orders quashing the costs orders obtained by MBQ on 1 July 2010 and orders for repayment of costs under those orders. The relief also sought “sanctions … against the perpetrators”. The written submissions also sought such relief.
- [21]For present purposes it can be assumed that it was the subject of the application for leave to appeal. To the extent that the applicant’s submissions advanced a basis for that aspect of relief, it relied upon the same point as set out in paragraph [16] above. It fails for the same reason. Nothing advanced could overcome the extreme time delay in challenging the orders and certificate.
- [22]The application to set aside the costs order and have the costs repaid was made below and rightly dismissed. No arguable basis was developed before this Court as to why the learned primary judge was in error to do so.
- [23]Leave to appeal in respect of that application should be refused.
Conclusion
- [24]For the reasons given above I joined in making the following orders on 25 February 2022:
- Application to adduce further evidence refused.
- Application for leave to appeal refused.
- The applicant pay the respondent’s costs of and incidental to the applications, to be assessed on the standard basis.
- [25]MULLINS JA: For the reasons given by Morrison JA, I joined in making the orders on 25 February 2022.
- [26]BOND JA: I agree with the reasons for judgment of Morrison JA.
Footnotes
[1] (2015) 241 FCR 419, at [6]-[14].
[2] Broadbent v Medical Board of Australia (2015) 241 FCR 419.
[3] Reasons below at [29]-[30].
[4] Reasons below at [32].
[5] Reasons below at [22].
[6] Reasons below at [28].
[7] (2011) 195 FCR 438.
[8] (2015) 241 FCR 419.
[9] Broadbent v Medical Board of Queensland at [133]-[146]; Broadbent v Medical Board of Australia at [62]-[63].
[10] Broadbent v Medical Board of Australia at [62].
[11] Broadbent v Medical Board of Australia at [69].
[12] Broadbent v Medical Board of Australia at [87].
[13] Broadbent v Medical Board of Australia at [89].
[14] It was already in the appeal book at AB 37.
[15] Made on 2 September 2010.
[16] Made on 10 April 2013. See AB 108.
[17] AB 31.