Psychology Board of Australia v Tubaro (No 2)
[2015] QCAT 141
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- Unreported Judgment
- Psychology Board of Australia v Tubaro (No 2)[2015] QCAT 141
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Psychology Board of Australia v Tubaro (No 2)[2015] QCAT 141
Psychology Board of Australia v Tubaro (No 2)[2015] QCAT 141
CITATION: | Psychology Board of Australia v Tubaro (No 2) [2015] QCAT 141 |
PARTIES: | Psychology Board of Australia (Applicant) |
v | |
Bertina Caterina Tubaro (Respondent) |
APPLICATION NUMBER: | OCR022-13 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
DELIVERED ON: | 28 April 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the Tribunal dismissed a referral for disciplinary proceedings from the Psychology Board of Australia – whether costs should be awarded to the practitioner – where proceedings adjourned in circumstances occasioned by the practitioner – where costs ordered to the practitioner – where an amount of costs to the practitioner discounted due to adjourned proceedings PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON AN INDEMNITY BASIS – whether past offer by practitioner to Psychology Board allows for order for costs on indemnity basis – where letter of offer not made pursuant to the QCAT rules – where no order for costs on indemnity basis made Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102(3) Health Practitioner Regulation National Law (Queensland) Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s 255 Uniform Civil Procedure Rules 1999 (Qld), r 353 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86 Walton v McBride (1995) 36 NSWLR 440 Psychology Board of Australia v Tubaro [2014] QCAT 303 Ohn v Walton [1995] 36 NSWLR 77 Latoudis v Casey (1990) 170 CLR 534 |
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
- [1]The Tribunal dismissed a referral for disciplinary proceedings from the Psychology Board of Australia (‘Board’) against Ms Bertina Tubaro. Ms Tubaro seeks her costs. The Board submits that the appropriate order is that there be no order as to costs.
- [2]These proceedings were brought under the Health Practitioners (Professional Standards) Act 1999 (Qld) (‘Disciplinary Proceedings Act’).[1] Under s 255 of the Disciplinary Proceedings Act, ‘the tribunal may make any order about costs it considers appropriate for the proceedings’. This grants the Tribunal a broad discretion, to be exercised judicially.[2]
Background
- [3]This matter has a long and complex history commencing in August 2009. The background of the disciplinary action is more fully described in the reasons of the substantive matter.[3]
- [4]In or around August 2009 Ms Tubaro prepared a report for a Family Court proceeding. A complaint was made by a party to the proceeding about the report and that complaint was investigated by the Psychologists Board of Queensland (‘the Former Board’). On 15 April 2010 the Former Board resolved to commence disciplinary action regarding this complaint. This was the first disciplinary action. On 9 February 2012 the Former Board reversed its decision.
- [5]The second disciplinary action related to Ms Tubaro’s conduct in the Family Court proceedings. Under cross-examination Ms Tubaro gave evidence regarding the first disciplinary action. The Board contended that Ms Tubaro, in giving her evidence, did so in a manner that attempted to minimise the seriousness of the allegations that were currently against her. The Board contended she did so by not fully and honestly answering questions regarding the allegations when she was aware of their full extent.
- [6]In her submissions, Ms Tubaro raises that on 10 June 2010 the Board resolved to refer this conduct to the Australian Federal Police on the basis that Ms Tubaro may have committed perjury. On 27 January 2011 the AFP advised the Australian Health Practitioner Regulation Agency that it would not be investigating the matter. Ms Tubaro was not made aware of the referral to the AFP until 18 May 2011, long after the matter had been dealt with.
- [7]The hearing of this matter was originally listed for 9.30am on 13 November 2013. On that day, it was adjourned until 13 May 2014. The history surrounding the adjournment follows.
- [8]By directions made during a compulsory conference Ms Tubaro was to file ‘any further statements of evidence’ by 4.00pm on 16 October 2014. Ms Tubaro did not make an application for further directions to extend this time limit. Ms Tubaro had not filed her affidavit by this time.
- [9]At 5.30pm on 24 October 2013 solicitors for Ms Tubaro sent by email to the solicitor for the Board, a draft copy of Ms Tubaro’s affidavit. The matter had been listed for a directions hearing the following day at 9.30am.
- [10]At the directions hearing the Board submitted that the matter be heard on the papers. In making that submission it was noted, amongst other factors, that the Board did not intend to cross-examine Ms Tubaro. Ms Tubaro requested that, in addition to written submissions that had already been filed, oral submissions be made. Solicitors for Ms Tubaro noted that she would be prepared to be cross-examined at the hearing. Ultimately the matter was listed for an oral hearing on 13 November 2013.
- [11]On 11 November 2013 Ms Tubaro filed her affidavit. That was just two days prior to the hearing of the matter and 26 days after the date she ought to have filed the material. The affidavit was in identical terms to the draft affidavit previously provided to the Board. It was very short.
- [12]At 7.34am on the morning of the hearing, solicitors for the Board sent to solicitors for Ms Tubaro an email advising that Ms Tubaro would be required for cross-examination.
- [13]At the hearing on 13 November 2013 it was submitted for Ms Tubaro that the Board should not be entitled to cross-examine her as she was not prepared and it had previously indicated that it did not intend to do so. No mention was made of the indication previously given on her behalf in resisting a hearing on the papers that she was prepared to be cross-examined. It was further submitted that the Board’s tactics in requiring cross-examination at such a late stage was akin to ‘trial by ambush’. The Tribunal decided that the Board was entitled to cross-examine Ms Tubaro, but granted an adjournment of the matter to allow her to prepare. Costs of the adjournment were reserved.
- [14]It is also to be noted that Ms Tubaro, by letter of 30 August 2013, offered to bear her own costs if the Board withdrew the disciplinary proceedings.
Referral to the AFP
- [15]AHPRA’s referral letter to the AFP notes ‘Ms Tubaro has been advised of the Board’s decision’. Relevantly, the Board’s decision is identified as being that ‘the Psychologists Board of Queensland considered the information … resolving that the allegation be referred to the Australian Federal Police’. Ms Tubaro contends that she was not informed of the referral to the AFP until 18 May 2011, almost 12 months after the decision was made.
- [16]Ms Tubaro submits that the referral to the AFP and the delay in bringing it to her attention are relevant factors to the issue of costs. Ms Tubaro, addressing the factors listed in s 102(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), submits that the Board, in not providing her an opportunity to make submissions to the AFP, acted in a way that unnecessarily disadvantaged her.
- [17]The Board submits that the matters regarding the referral to the AFP are not sufficiently connected to the proceedings and are therefore irrelevant to the exercise of discretion to award costs.
- [18]In my view, the matters concerning the referral to the AFP have no bearing on whether Ms Tubaro should be awarded costs. They do not concern the Board’s conduct of these proceedings.
- [19]Furthermore, costs in these proceedings are governed by section 255 of the Disciplinary Proceedings Act; not section 100 of the QCAT Act. Therefore, the matters set out in section 102 of the QCAT Act are not directly relevant to the exercise of the Tribunal’s power to award costs in this matter. More broadly, given that those were matters which occurred prior to the matter being referred to the Tribunal, it is difficult to see how they could be relevant to the purpose of an order for costs which ‘is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made’.[4]
Adjourned Hearing
- [20]It is submitted for Ms Tubaro that in preparing her case for hearing on 13 November 2013 she had prepared on the basis that the hearing would be limited to oral submissions. While Ms Tubaro was present at the hearing, she maintains that she was not prepared to give evidence on that day.
- [21]At the final hearing Ms Tubaro gave evidence that she had not read two relevant documents during the period since the adjournment. The Board rely on this to show that Ms Tubaro had not undertaken the necessary preparations for which the adjournment had been sought and was granted. It submits that this lack of preparation indicates that it is appropriate to order Ms Tubaro pay the Board’s costs of the adjourned hearing.
- [22]However, the Board submits that, rather than making a separate order as to the costs of the substantive matter and the adjourned hearing, the Tribunal ought take into account the facts surrounding the adjourned hearing in ordering that there be no order as to costs.
- [23]As noted, Ms Tubaro’s affidavit was short. It was made clear on 13 November 2013 that an adjournment was sought to another day, not until later that day. The matter had been initially stood down.
- [24]Given Ms Tubaro’s frank concession that she did not look at relevant documents during the period of the adjournment, the narrow scope of her evidence, and the fact that it had previously been indicated that she was prepared to be cross-examined, it is difficult to conclude otherwise than that she is responsible for the costs thrown away occasioned by that adjournment. She certainly should not be awarded, as part of any costs award in her favour, the costs of that hearing.
Substantive Hearing
- [25]Ms Tubaro submits that it is relevant to the determination of costs that: the Board reversed its decision to take disciplinary action in relation to her report; the Board initially advised Ms Tubaro had given ‘perjured evidence to the Family Court’ and it considered this was ‘serious and if proven goes to her competency as a health practitioner’; and the Board, after receiving correspondence from Ms Tubaro’s solicitors, informed Ms Tubaro that it no longer considered her conduct as amounting to perjury, but was considering whether her evidence was appropriate.
- [26]The Board submits that this conduct, which occurred prior to the commencement of the proceedings, is not relevant in determining costs as it is not sufficiently connected to the proceedings. For reasons which I have already developed above, the Board’s submission should be accepted.
- [27]Ms Tubaro submits that it is relevant to the award of costs that:
- on 21 May 2012 the Board advised Ms Tubaro it had decided to commence disciplinary proceedings;
- Ms Tubaro elected for the matter to be referred to the Tribunal rather than a disciplinary committee;
- at the time of making the election Ms Tubaro had been informed that the Board was of the belief that ‘she failed to provide a full and frank explanation to the Court’;
- the Board did not provide the particulars of the disciplinary action until 29 January 2013;
- Ms Tubaro was within her rights to refer the matter to the Tribunal, especially considering the seriousness of the Board’s initial position that Ms Tubaro had committed perjury;
- Ms Tubaro’s professional reputation was in jeopardy, especially considering she works exclusively as a Family Law report writer; and
- the Board had taken two and a half years upon receipt of the second complaint for the matter to be referred to the Tribunal.
- [28]Again with reference to s 102 of the QCAT Act, Ms Tubaro submits that it is relevant to the award of costs that the matter was substantial and complex. In making that submission Ms Tubaro refers to the factual complexity and the legal issues of statutory interpretation and appropriateness of cross-examination. She does not, however, identify such complexities with any particularity.
- [29]The Board submits that the proceedings cannot be termed as complex. It notes that there were minimal factual issues in dispute and no matters of legal complexity.
- [30]Again, for reasons developed earlier, these matters directed toward the factors in section 102 are not directly relevant to the exercise of the Tribunal’s discretion under section 255 of the Disciplinary Proceedings Act. Nonetheless, I accept the Board’s submission that these were not complex proceedings.
- [31]Ms Tubaro also submits that the Board’s case was weak and that she should never have been put to the expense of defending it.
- [32]Ms Tubaro also submits that the Board, in bringing disciplinary proceedings, ought to have acknowledged the pressures involved in being cross-examined and ought to have known that during this process even experienced witnesses can communicate sub-optimally.
- [33]The Board submits that, in determining costs, it ought be noted that this is a case where the Board was not wholly without foundation. In making this submission the Board relies on paragraph [33] of the decision where the Tribunal notes ‘Ms Tubaro’s initial response (to a question in cross-examination) may have been somewhat disingenuous.’ However, the Tribunal continued, ‘but that does not support a finding of unsatisfactory professional conduct’.
Primary Findings as to Costs
- [34]In my view, it is appropriate that Ms Tubaro have the majority of her costs. She was entitled to have the matter referred to the Tribunal. Her decision to do so has been vindicated. The reasons in the substantive decision demonstrate that Ms Tubaro’s evidence could not be characterised in the way in which the Board sought to do. Ms Tubaro needed to pursue the matter to a hearing before the Tribunal in order to establish that and, in my view, ought be compensated for the cost of doing so.
- [35]She should not, however, have her costs of the adjourned proceedings. That adjournment was occasioned by her. She should have been in a position to proceed on 13 November 2013; including being cross-examined.
- [36]Given that I am not acceding to the Board’s submission that the fact that the adjournment caused costs to be thrown away is a matter which would be taken into account in reaching an ultimate conclusion that the parties should bear their own costs, and given that the Board is not itself seeking costs, it is appropriate that any award of costs to Ms Tubaro be discounted to reflect those costs thrown away. Although necessarily unscientific, a discount of 15% seems appropriate.
Indemnity Costs
- [37]Ms Tubaro submits that the Tribunal’s power to award indemnity costs is derived from r 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’). Rule 86 provides that if a more favourable offer to settle was rejected the Tribunal may award the party making the offer ‘all reasonable costs incurred by that party in conducting the proceeding after the offer was made’.
- [38]Relying on the offer made that each party walk away from the proceedings and bear their own costs Ms Tubaro submits that this is an appropriate case in which to make orders that the Board pay her costs in the indemnity basis after 30 August 2013.
- [39]The Board submits that an order for indemnity costs is not supported because: it was not indicated that the offer was not made pursuant to r 86 as is required of offers to settle in the Supreme and District Court under r 353 of the Uniform and Civil Procedure Rules 1999 (Qld) (‘UCPR’); the Board could not withdraw the proceedings without the Tribunal’s leave;[5] and the Board had not been able to consider Ms Tubaro’s affidavit before the offer was rejected.
- [40]In reply Ms Tubaro notes: the Board was capable of making an application to the Tribunal for leave to withdraw the proceedings if it wished to accept the offer; and, while the Board had not seen the affidavit of Ms Tubaro, the matters contained in it were known to the Board at the time the offer was made.
- [41]In my view, the submissions of both Ms Tubaro and the Board focus too closely on rule 86 of the QCAT Rules, and insufficiently on section 255 of the Disciplinary Proceedings Act which govern costs in this matter. Section 255(2)(a) provides that the costs allowable are only the costs that would be allowable if the proceedings were proceedings in the District Court. In my view, this is a reference to the District Court Scale of Costs. Indemnity costs may go beyond the Scale of fees, even though regard is to be had to the scale in assessing indemnity costs.[6]
- [42]In any event, even applying rule 86 of the QCAT Rules, I would not allow indemnity costs.
- [43]The letter in which the offer was made was not said to be made pursuant to the rules. It did not provide a time during which it was open for acceptance.[7] It was not expressed in terms that suggest it would be brought to the Tribunal’s attention on the issue of costs if it were not accepted.
Order
- [44]The Psychology Board of Australia is to pay 85% of Ms Tubaro’s costs of and incidental to the proceedings, excluding any costs of Ms Tubaro of the hearing on 13 November 2013, assessed on the Standard basis for matters in the District court.
Footnotes
[1] The Act’s name was subsequently amended to the Health Practitioners (Disciplinary Proceedings) Act 1999.
[2] Walton v McBride (1995) 36 NSWLR 440 at 447 – 448.
[3] Psychology Board of Australia v Tubaro [2014] QCAT 303 at [3] – [7].
[4] Ohn v Walton [1995] 36 NSWLR 77 at 79 per Geeson CJ; Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ, 562 – 563 per Toohey J and 566 – 567 per McHugh J.
[5] Section 46(1) of the QCAT Act, as at the time of the offer, required that leave is required to withdraw proceedings. This section has since been amended by s 146(2) of the Justice and Other Legislation Amendment Act 2013 (Qld) such that leave is no longer required.
[6] UCPR r 703(3).
[7] Compare r 86(1)(b).