Medical Board of Australia v Vucak (No 2)
[2015] QCAT 509
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Medical Board of Australia v Vucak (No 2)[2015] QCAT 509
- Add to List
Medical Board of Australia v Vucak (No 2)[2015] QCAT 509
Medical Board of Australia v Vucak (No 2)[2015] QCAT 509
CITATION: | Medical Board of Australia v Vucak (No 2) [2015] QCAT 509 |
PARTIES: | Medical Board of Australia |
v | |
Mark James Vucak (No 2) |
APPLICATION NUMBER: | OCR117-14 |
MATTER TYPE: | Occupational Regulation Matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | His Honour Judge Horneman-Wren SC, Deputy President |
DELIVERED ON: | 5 November 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – COSTS Medical Board of Australia v Vucak [2015] QCAT 367. Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld), s 255 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Ms K McMillan QC instructed by Rogers Barnes & Green Lawyers. |
RESPONDENT: | Mr G Diehm QC instructed by Ashurst Lawyers. |
REASONS FOR DECISION
- [1]The Medical Board of Australia referred disciplinary proceedings to the Tribunal which alleged Dr Vucak had engaged in conduct constituting unsatisfactory professional conduct under the Health Practitioner (Disciplinary Proceedings) Act 1999. The conduct constituting the disciplinary charges related to Dr Vucak’s relationship with a former patient, AB.
- [2]The Board’s referral alleged Dr Vucak exploited the therapeutic relationship between himself and AB by engaging in a sexual relationship. Four of the occasions of sexual intercourse between 5 September 2006 and 28 November 2006 were admitted by Dr Vucak.[1] A fifth allegation,[2] that a further occasion of sexual intercourse occurred on 15 May 2007, was denied. Dr Vucak also denied an allegation that on 12 June 2007 he evidenced a desire to have sexual intercourse with AB at his Motel room removing his clothes and saying words to the effect that ‘if you don’t remove your clothing then I will do it for you’.[3]
- [3]The Board also alleged Dr Vucak exploited the therapeutic relationship on another two occasions. First, on 29 January 2005 during a consultation with AB requesting her to join him for dinner[4] and, secondly, during a consultation on 18 April 2007 where Dr Vucak allegedly evidenced a desire to have sexual intercourse with AB by pressing himself against her from behind and touching her breasts, during which time he had an erection.[5] These two allegations were also denied.
- [4]The Tribunal Hearing lasted one day with examination and cross examination of both AB and Dr Vucak on the contested allegations.
- [5]On the morning of the Hearing counsel for the Board, Ms McMillan QC, very fairly informed the Tribunal that in conference on the previous day AB had expressed some confusion regarding her recollection of matters concerning the grounds relating to May and June 2007 as recorded in her affidavit. Nonetheless, all the allegations were pressed.
- [6]The Tribunal ultimately determined that the Board had failed to prove the contested allegations to the requisite standard and sanctioned Dr Vucak on the charges amounting to unsatisfactory professional conduct which he had admitted.
- [7]The Tribunal has a discretionary power to make an order as to costs in disciplinary proceedings referred under the Health Practitioner (Disciplinary Proceedings) Act 1999 pursuant to s 255.
- [8]There is really not much between the parties in their respective submissions on costs.
- [9]The Respondent submits that the appropriate order in this matter would be that he pay 50% of the Board’s Costs of and incidental to the proceedings as assessed on the standard basis. That submission is made in recognition of the fact that the Board had a statutory obligation to refer the matter to the Tribunal for disciplinary action, but that in so doing it pursued issues which, viewed objectively, had limited prospects of success. This proved to be the case with Dr Vucak being sanctioned only in respect of the conduct which he had admitted. Dr Vucak’s solicitors had raised these issues with the Board’s solicitors in correspondence of 24 September 2014 in which he offered to enter a “guilty plea” to the charge of unsatisfactory professional conduct on the basis of his admissions.
- [10]The Medical Board seeks the costs for the grounds in the referral notice that amounted to the finding of professional conduct as admitted to by Dr Vucak. The Board submits that the remaining grounds that the Board failed to prove to the requisite standard should not be the subject of any order as to costs. The Board accepts that a without prejudice admission of the conduct was made, but refers to the Tribunal having ‘found’ that further details were not disclosed as to whether this was also an acceptance of misconduct. It submits that there was no admission of misconduct until the hearing.
- [11]Those submissions are somewhat disingenuous. There was no finding by the Tribunal to the effect submitted. The Tribunal merely observed, in the context of discussing what it referred to as Dr Vucak’s slow and reluctant realisation that his conduct was inappropriate, that although the Tribunal had been told that in September 2014 he had made without prejudice admissions about the four acts of sexual intercourse which he later admitted in the proceedings, the Tribunal had not been told if misconduct had also been admitted at this time.[6]
- [12]It is now quite clear from the correspondence of 24 September 2014 which is annexed to Dr Vucak’s submissions on costs, that the without prejudice submissions were being offered in the context that there would also be a plea of guilty to unsatisfactory professional conduct in respect of those matters. In the event, those were the only matters upon which the Board succeeded.
- [13]In any event, the Board’s position that it should have its costs of those issues but that there should be no order as to costs on the other issues is not markedly different to Dr Vucak’s position. The percentages may vary slightly from 50/50 if an assessment of costs was conducted on each issue. The ultimate result may be better, slightly, for either the Board or Dr Vucak. Certainly an assessment on each of the issues would be much more complex, and expensive. Dr Vucak’s suggested approach, although somewhat arbitrary is a better approach.
- [14]Dr Vucak will be ordered to pay 50% of the Medical Board of Australia’s costs of and incidental to the proceedings as agreed or as assessed on the standard basis for matters in the District Court.
Footnotes
[1] Paragraphs 2(a)(i)-(iv) of the Referral Notice.
[2] Paragraphs 2(a)(v) of the Referral Notice.
[3] Paragraph 2(b) of the Referral Notice.
[4] Paragraph 1(a) of the Referral Notice.
[5] Paragraph 1(b) of the Referral Notice.
[6] Medical Board of Australia v Vucak [2015] QCAT 367 at [57].