Zhang v Chinese Medicine Board of Australia
[2015] QCAT 53
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- Unreported Judgment
- Zhang v Chinese Medicine Board of Australia[2015] QCAT 53
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Zhang v Chinese Medicine Board of Australia[2015] QCAT 53
Zhang v Chinese Medicine Board of Australia[2015] QCAT 53
CITATION: | Zhang v Chinese Medicine Board of Australia [2015] QCAT 53 |
PARTIES: | Jirong Zhang (Applicant) |
v | |
Chinese Medicine Board of Australia (Respondent) |
APPLICATION NUMBER: | OCR050-13 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | One the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O'Callaghan |
DELIVERED ON: | 16 February 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL – REGISTRATION – REVIEW OF BOARDS DECISION – COSTS – where applicant applied to review Board decision to refuse registration – where applicant unsuccessful – whether Board should be awarded costs Health Practitioner Regulation National Law Act 2009 (Qld), s 201 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Attudawage v Medical Board of Australia (No 4) [2011] QCAT 626 |
APPEARANCES:
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]Mr Zhang filed an application asking the Tribunal to review a decision of the Chinese Medicine Board of Australia to refuse his application for registration as a Chinese medicine practitioner on the basis that he was not a suitable person to be registered.
- [2]I heard the application and subsequently made an order confirming the Board’s decision.
- [3]The Board seeks an order that Mr Zhang pay the Board’s costs of that application.
- [4]Mr Zhang opposes the costs application and says that he should not be ordered to pay the Board’s costs.
The Board’s Submissions
- [5]The Board points out that although the position under the QCAT legislation is that each party must bear their own costs,[1] that provision is subject to the provisions of any enabling Act which might provide otherwise.
- [6]In this case the enabling act is the Health Practitioner Regulation National Law Act 2009 (Qld) (‘National Law’) which does provide otherwise. Section 201 of that Act provides ‘The responsible tribunal may make any order about costs it considers appropriate for the proceedings’. This confers an unfettered discretion on the Tribunal to make an order about costs it considers appropriate in the proceedings.
- [7]The Board says it is appropriate in this case that Mr Zhang pay its costs because:
- Mr Zhang was wholly unsuccessful in the proceeding.
- Mr Zhang sought to reagitate matters that had previously been determined in 2007 by the Victorian panel. It points out that in these proceedings I made a finding that Mr Zhang’s failure to accept some of the aspects of the Victorian Panel’s findings represented a disregard and disrespect for the Victorian Panel’s findings.
- Mr Zhang had been told in July 2010 that his compliance or otherwise with the orders imposed by the Victorian Panel would be taken into account by the National Board in considering any application for registration. He nevertheless reviewed the Board’s decision not to register him despite having not complied with the orders.
- The Board points out (as I found in the proceedings) that Mr Zhang, after his review application was filed, lied to the Board about having complied with the Victorian Panel’s orders.
- I made a finding in the proceedings that Mr Zhang gave evidence at the hearing which would place him in the best possible light rather than truthfully answering the questions put to him.
- The Board says that Mr Zhang is not impecunious as he suggests for example he owns the property out of which the clinic operated.
- The Board fulfils a statutory obligation in the public interest and is funded through the registration fees paid by members. The rational applied in disciplinary proceedings that ‘members of the profession of good standing should not be left to carry the burden of costs incurred by the Board disciplining members of poor standards’ could be applied to this case because although not a disciplinary hearing ‘the Board has been put to the costs of defending its decision in respect of a former member of the profession who is of poor standing’.
Mr Zhang’s Submissions
- [8]Mr Zhang’s legal representative filed two sets of written submissions on his behalf. In the first set of submissions his objection to any costs order was based principally on the misapprehension that s 100 of the QCAT Act applied and that this was not a case where the usual position that parties bear their own costs should be departed from.
- [9]Further Mr Zhang had not been legally represented and had allowed his representative ‘Simon’ to conduct the case on his behalf. He did not understand ‘the assertions made in the proceedings’.
- [10]He is in a precarious financial position and any costs order would cause him undue hardship.
- [11]The Board filed a short submission in response which pointed out that the usual cost provision in s 100 had been displaced by s 201 of the enabling Act. They also noted that the submission of Mr Zhang as to his financial position was not supported by any sworn evidence.
- [12]Mr Zhang’s lawyers then filed a second set of submissions.
- [13]In these submissions his representatives sort to correct the error in the first submission by acknowledging the provisions of s 201 of the National Law and noting that as provided in another decision dealing with s 201, that it ‘conferred unfettered discretion on QCAT to make an order about costs it considered appropriate in the proceedings’.[2]
- [14]The submissions went on to say that the Tribunal should exercise this discretion by having regarding to the factors set out in s 102 of the QCAT Act.
- [15]I do not agree that the discretion should be limited by reference to s 102 of the QCAT Act. The costs regime under the QCAT Act is more limited than the unfettered discretion provided for in s 201 of the National Law. It may be the case of course that factors listed in s 102 also happen to be factors that the Tribunal may have regard to when deciding whether a costs order is appropriate.
- [16]I also note that Mr Zhang (despite accepting that s 201 displaced the general rule) submitted that no order for costs should be made ‘as there is nothing in the conduct of the application which would displace the general rule and enliven the discretion of QCAT to award costs in favour of the respondent’. This submission is misguided and inconsistent with this apparent acknowledgement earlier in his submission that the usual position of costs does not apply in this case.
- [17]Mr Zhang submits that it is not appropriate to order costs against him as he was unrepresented and did not understand the assertions made in the proceeding.
- [18]He suggests that he put his trust in Simon and left it to Simon to advise him and represent him in the proceedings.
- [19]It is not the case that Simon had full control of the matter. They had parted ways prior to the matter coming on for hearing. This was Mr Zhang’s application to review the decision. It was incumbent upon him to ensure that he understood the argument that he was presenting to the Tribunal.
- [20]As I have pointed out in the reasons, it was of concern that Mr Zhang appeared to have not read his own application for registration prior to it being shown to him in the witness box. At that stage he acknowledged that it contained misrepresentations.
- [21]I accept, as the Board submits, that Mr Zhang knew that compliance or otherwise with the Victorian Board orders was a relevant factor in the consideration of his application registration. Not only did he choose to ignore the orders he lied about his compliance.
- [22]If Mr Zhang had taken a different approach to the Victorian Board’s order and then a review application may not have been necessary.
- [23]Mr Zhang has now provided affidavit evidence as to his financial position. I accept that this material indicates that Mr Zhang has significant debt. He is trying to sell or lease the property out of which the clinic operated.
- [24]This however is not a reason to exercise my discretion against making an order if it is otherwise appropriate.
- [25]Mr Zhang was wholly unsuccessful in this review application. In circumstances where he persisted with the review application knowing that he had not complied with the orders of the Victorian Panel, falsely misstating the position as to his compliance and where I expressed doubts as to the genuineness of his evidence given at the hearing in pursuit of his registration, it is appropriate that he pay the Board’s costs.
- [26]I order that Mr Zhang pay the Board’s costs of and incidental to these proceedings to be assessed on the standard basis on the District Court scale of fees by QICS or Hickey Garrett.