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- Unreported Judgment
Lee v Medical Board of Australia (No 2) QCAT 321
Lee v Medical Board of Australia (No 2)  QCAT 321
Medical Board of Australia
OCR196-15 and OCR197-15
Occupational regulation matters
26 August 2016
Hon J B Thomas, Judicial Member
On the papers
The applicant Dr Lee is ordered to pay 75% of the respondent Board's costs of and incidental to the proceedings in OCR196-15 and basis of the District Court scale of costs by a costs assessor OCR197-15 to be assessed on the standard agreed by the parties, and in default of agreement, as appointed by the Board.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS AND TRIBUNALS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where conditions imposed on general practitioner’s registration by way of immediate action – where the Board exercised its power under s 126 of the Health Practitioner Regulation National Law Act 2009 (Qld) and changed the conditions on practitioner’s registration – where practitioner sought review of decision to impose conditions – whether such proceedings are "disciplinary proceedings" under s 43 of Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where the matter proceeded to a compulsory conference – where the parties reached a provisional consensus as to appropriate conditions to be imposed but the Board’s representatives lacked authority to make a binding agreement on behalf of the Board – nature of compulsory conferences and fundamental requirement to have duly authorised representatives to facilitate reaching of settlements – where the Board subsequently decided to progress to hearing – where practitioner withdrew his applications – where the Board seeks its costs of the proceedings – 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) – factors relevant to exercise of discretion in disciplinary proceedings – whether the interests of justice require the Tribunal to make an order for costs or reduce costs that otherwise would be ordered in favour of the Board in respect of conduct at compulsory conference
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – whether the proceedings should be characterised as a “disciplinary action” for the purposes of s 43(2)(b)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Health Practitioner Regulation National Law Act 2009 (Qld), s 37(1), s 199
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43(2)(b)(ii), s 68(1), s 74(1), s 74(2)(a), s 74(2)(b), s 102
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412, considered
Tamawood Ltd & Anor v Paans  QCA 111, considered
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
- This is an application by the Medical Board of Australia (Board) for the costs of two applications for review (OCR196-15 and OCR197-15) brought by Dr Lee against the Board.
- The parties filed material and took part in a compulsory conference where the expectation was that the matters would be resolved. However, a hearing date was set for 18 April 2016.
- On 12 April 2016 Dr Lee filed a notice of withdrawal of these applications.
- The Board now seeks its costs of the matters against Dr Lee.
- It has been directed that this question be determined on the papers. Submissions have been received by both parties and I have been appointed to make the determination.
- The two original applications are appeals against the decisions of the Board imposing conditions on Dr Lee’s registration. Such appeals are authorised by s 199 of the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law). Under s 9 of the Act such appeals are to be dealt with by the Queensland Civil and Administrative Tribunal (QCAT) as reviews of the relevant decisions.
- The present proceedings are therefore governed by ss 17-24 of the QCAT Act.
Relevant facts and proceedings
- At all material times Dr Lee was and remained a registered general practitioner.
- The relevant complaint against him is of sexual impropriety with a young male patient commencing in 2005 when the patient was fifteen years old, and extending over a lengthy period.
- On 19 July 2013, the Australian Health Practitioner Regulation Agency (AHPRA) resolved to take immediate action against Dr Lee and impose conditions on his registration (the original decision).
- Condition 1 required Dr Lee to ensure that any male patients under the age of 18 were to be accompanied by an adult chaperone during any medical assessment, consultations, examination or treatment. Other conditions required him to maintain a register of chaperones for inspection by the Board.
- AHPRA received information that several persons who accompanied male patients in reported compliance with condition 1 of the notice of conditions were not aware that they were acting in the capacity of a chaperone. AHPRA believed that this was inconsistent with an implied requirement of the conditions.
- On 2 September 2015 AHPRA exercised its power under s 126 of the National Law to impose additional requirements in condition 3 which required Dr Lee to use a specific form of chaperone register approved by the Board, and which required the chaperones to perform certain tasks and reports (the amended decision).
- The requirements imposed by the amended decision were rather lengthy, and included obligations on the part of the chaperones to sign a register in a specified form to signify understanding and compliance with having attended and observed the entire doctor/patient interaction and of supporting the patient in the role of chaperone, and undertaking to immediately notify AHPRA of any concerns about Dr Lee’s conduct.
- On 3 November 2015 Dr Lee filed applications to review the original decision and the amended decision. In the course of the litigation, an order was made prohibiting publication of anything that would identify the patient. A compulsory conference was held on 29 January 2016.
- Following the compulsory conference directions were given for the filing of affidavits, notices of witness and submissions, and a hearing date was set for 18 April 2016.
- There is an issue as to whether the receipt of evidence of events at the compulsory conference is receivable in view of the prohibition imposed by s 74 of the QCAT Act. This will be later dealt with, but it may be foreshadowed that in the circumstances the evidence will be received.
- During the compulsory conference, the representatives of the parties reached a consensus as to appropriate conditions to be imposed on Dr Lee’s practice, varying the terms that had been imposed by the amended decision. However, the persons attending the compulsory conference on behalf of the Board lacked the authority to agree to them on behalf of the Board. Accordingly, there was a provisional agreement that was subject to subsequent approval by the Board.
- Those attending on behalf of the Board included an experienced solicitor, a Queen's Counsel, a senior AHPRA in-house lawyer and another Board officer.
- A consensus was reached between those present as to an acceptable variation of the terms of the chaperone register. This would have settled the litigation.
- Those present on behalf of the Board lacked the authority to make a binding agreement on behalf of the Board. Accordingly, they reached agreement “subject to Board approval”. The expectation was that this would be achieved within two weeks.
- Directions were then given for a hearing date, no doubt to cover the possibility of the Board not agreeing, or in any event to provide the occasion for the making of a final order in due course.
- A little over six weeks later the Board’s representatives advised Dr Lee that the Board had instructed “to progress this matter to hearing”. This was received only five weeks before the scheduled hearing date.
- On 12 April 2016 Dr Lee instructed his solicitors to withdraw the proceedings.
- Before attempting to determine the issue of costs it will be desirable to indicate something of the legal framework under which the determination is to be made.
Admissibility of details concerning the compulsory conference
- Compulsory conferences have proved to be an important tool in QCAT’s jurisdiction. In disciplinary proceedings the compulsory conference is commonly the catalyst that removes contention from the proceedings, subject of course to ultimate satisfaction by the tribunal that the suggested resolution is appropriate from a public viewpoint.
- Section 68(1) of the QCAT Act is designed to ensure that such conferences are attended by persons who have the authority to agree to a settlement. Subsection (1) identifies the persons whom the member may order to participate in such a conference as the party in person, or “represented by a person who has authority to settle the dispute the subject of the proceedings for the party”.
- Section 74 encourages candour by providing protection against anything said or done at such a conference from being subsequently admitted.
- In their submissions to me, both parties provided details of the events that occurred during the compulsory conference. Those details are certainly relevant to the question of costs if they are admissible.
- The only arguable exceptions in favour of admissibility in the present case are those mentioned in s 74(2)(a) and (b), namely:
- Evidence that all parties to the proceeding have agreed may be admitted into evidence; or
- Evidence of an order made or direction given at a compulsory conference or the reasons for the order or direction.
- For Dr Lee it was submitted that the details supplied were relevant to “the reasons for the order” under s 74(2)(b) above. However, mere relevance to the order would not be enough to satisfy subparagraph (b). The reference in the subsection is to the order, direction or reasons themselves: that is to say, to the formal order, direction or reasons of the member. In the present matter, reasons were not given or asked for.
- The only arguable exception that would permit the evidence to be received in the present matter is agreement of the parties to admit it into evidence.
- Whilst there was no direct evidence of an express agreement to this effect, such an agreement is to be implied from the conduct of the parties. Both have without objection presented evidence to me of what transpired. Dr Lee's submissions include details of the fact that an agreement was reached between those present as to an acceptable amended formula for the conditions to be imposed. The Board's submissions accept this premise, and then supplement the description of what occurred at the conference. They then deal with the costs arguments on the merits of the relevant conduct of the parties, and offer an explanation as to how it came about that the Board participated in the compulsory conference without authority to make a final agreement.
- I infer that each party has agreed to permit the other to make the disclosures that have been made, and that s 74(2)(a) applies.
- The evidence may therefore be received and taken into account.
Tribunal's discretion to award costs
- These are matters to be determined in QCAT’s review jurisdiction. There are no longer any relevant provisions in the National Law covering the costs of proceedings of the present kind. Accordingly the provisions of s 100 to s 109 of the QCAT Act apply.
- Guidance on the proper application of these sections has been provided in a number of decided cases, and observations of particular assistance concerning the exercise of the discretion conferred by those sections are made in Tamawood Ltd & Anor v Paans  QCA 111, especially at , , , ,  and  per Keane JA, and in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412 per Wilson J.
- The ultimate question posed by the statutory provisions is whether it is in the interests of justice to make a costs order. A wide range of circumstances must be considered in order to answer it.
- Although the present proceedings do not involve determination of a disciplinary charge, they are concerned with the Board's exercise of its powers under s 126 and s 156 of the National Law where the Board has chosen to impose restrictive conditions on a respondent's practice.
- Section 43 of the QCAT Act provides that if the proceeding “relates to taking disciplinary action” a party may choose to be represented by someone else.
- In my view proceedings of the present kind relate to the taking of disciplinary action.
- Leave for legal representation was granted to Dr Lee in the present case, presumably out of an abundance of caution. This seems to have been the practice in QCAT since Bontchev v Medical Board of Queensland, a decision based upon concession by the parties that proceedings of a similar kind (renewal of registration on conditions) was not a disciplinary proceeding. The point was not considered.
- Neither the National Law nor the QCAT Act define either “disciplinary action” or “disciplinary proceeding”. The term “disciplinary proceeding” however is now defined under the Health Ombudsman Act 2013 (HO Act) in terms which capture all appealable decisions under s 199 of the National Law, including the placing of restrictions upon a practitioner's registration. The present matter is such a proceeding.
- The approach of the courts to the terms “disciplinary action” or “disciplinary proceeding” suggests that protection of the public interest is the gist of such proceedings as distinct from the imposition of penalties and sanctions. Restrictions upon practice may in any event be regarded as a sanction. This Tribunal's jurisdiction in such a case of course includes all the functions of the decision maker.
- Consistently with statutory and ordinary legal interpretation, “disciplinary action” in s 43 QCAT Act in my view includes proceedings concerning the actions of Boards in imposing conditions upon registrations. I would therefore characterise the present proceedings as disciplinary. Such proceedings comprise one of the few areas within QCAT’s jurisdiction in which a party has a right to legal representation.
- The right to legal representation brings into play some of the factors mentioned by Keane JA in the Tamawood case, especially the observation that justification and engaging legal representatives for a complex case “could be … a sufficient basis” for awarding costs “in the absence of countervailing considerations”.
- It has also been recognised as relevant in professional discipline matters that professional Boards are entrusted with the maintenance of appropriate conduct by practitioners, may incur considerable expense in investigation and prosecution, and are funded by their practitioner members. It is undesirable that professionals of good standing bear the full burden of costs arising from the unprofessional conduct of others. It was recognised in former cases under s 195 of the National Law (before it was repealed) that in the usual course practitioners against whom a disciplinary charge was established would be ordered to pay the Board’s costs unless other factors or considerations emerged. A number of decisions recognised this, including Dey v Medical Board of Australia  QCAT 546, ; Whitaker v Medical Board of Australia  QCAT 310, ; and Medical Board of Australia v Rall (No 2)  QCAT 229,  to .
- The repeal of s 195 of the National Law does not make those considerations irrelevant: it merely means that they are now to be evaluated in the context of a determination of whether a costs order is in the interests of justice.
- In my view considerations of the above kind concerning the function of professional boards are relevant to the question whether it is in the interests of justice for a costs order to be made. It is of course only one of many factors and may be outweighed by other more telling factors, but for what it is worth, it weighs in favour of the Board.
- At first glance, the Board has a strong case for an award of costs.
- The Board was brought to the Tribunal by Dr Lee's applications. It defeated his stay application, prepared for hearing, and shortly before the allocated hearing date, received Dr Lee's notice of withdrawal.
- In Tamawood, Keane JA observed:
In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome.
- Applying the reasoning of the Court of Appeal in Tamawood, especially paragraphs  to , the Board succeeded in the litigation, and the interests of justice would “in the absence of any countervailing consideration” clearly require departure from the usual rule that each should pay its own costs, and a costs order would be justified.
- However, countervailing considerations are raised by Dr Lee, and in particular the Board's conduct of the compulsory conference and its aftermath, which Dr Lee claims contributed to his withdrawal.
- There were reasonably arguable points in the litigation, and some of them raised complex issues. But in the end Dr Lee chose not to pursue them. His main point is that contrary to the statutory indication in s 68(1), the Board wasted and entirely frustrated the compulsory conference in this litigation. The cost of the conference was substantially thrown away because no one with the ability to provide instructions was available for the Board. Had it been known before the conference that the Board was not prepared to agree to any variation of the conditions, most of the costs of the compulsory conference could have been avoided.
- Dr Lee now submits:
- His practice in relation to underage males had in any event been considerably reduced in consequence of the existing restrictions on the register;
- He was stressed by the conduct of the proceedings, including by the making of a substantial compromise in good faith in order to reach agreement at the conference, and the fact that it ultimately turned out to be a waste of time, costs and effort. His submissions suggest that he lost confidence in the process; and
- He submits that an order that should be made against the Board on an indemnity basis for the costs thrown away in relation to the compulsory conference procedure.
- I do not find Dr Lee's loss of heart following the Board's rejection of the provisional settlement to be persuasive on this score. It may be inferred that the major factor in his decision to discontinue was an economic balancing of low future benefit to his practice when compared with the risk and cost of further litigation.
- His final submission is in these terms:
... the Board, as a litigant, and particularly as a model litigant, should be required to bear at least the costs inconvenience of the compulsory conference [sic], even if it cannot remedy other aspects of the inconvenience and stress... It is in the public interest that the compulsory conference be meaningful and its purpose respected, and that litigants do what they can to achieve those objectives. Having a person with appropriate authority to settle is fundamental.
- I agree with, and adopt the final sentence of that submission.
- The Board however explains that those who attended had some instructions as to how the matter could settle, but that they had no authority to go beyond those limited instructions, and that there was no system in force which would enable them to contact anyone who could give further instruction if any variation was proposed.
- The Board's explanation is that by instrument of delegation dated 2 July 2014, it delegated some of its functions under s 37(1) of the National Law to state and territory Boards, including the Australian Capital Territory Board, which it states is the relevant “state” Board in this case. This it is said, was due to a potential conflict of interest concerning the Queensland Board, resulting in certain matters being delegated by the National Board to the ACT Board. Thus it came to pass that the ACT Board had the management of relevant applications before the Tribunal.
- The submission proceeds that the ACT Board does not have power to further delegate the power given to it by the National Board. It follows that any “sponsor” or legal representative for the Board is limited to the instructions given by the ACT Board and in particular can only deal with matters which have previously been considered by it and about which decision has been made.
- The inevitable consequence is that if new matters are raised at a compulsory conference that have not been previously discussed, considered and determined by the Board, those new matters fall outside the guidance and advice that can be given by any Board sponsor or legal representative.
- In my view these submissions do not help the Board in the present matter. I am not persuaded that better arrangements could not be made to do something sensible about the present unsatisfactory situation. But even accepting the submissions at their highest, the Board's own incapacity is no answer to the unfortunate fact it is very far from a model litigant in a situation such as the present.
- It is unsatisfactory for a public board to deal with others from a superior position that would require a Tribunal to arrange for the other party to present it with a proposition that the Board would in due course consider. Similar experiences in commercial negotiation and in mediations are always to the disadvantage of the other party, not to mention the coordinating authority such as the mediator or the Tribunal.
- The Board's submission is that “sections, like sections 68 and 72 of the QCAT Act, do not sit comfortably with the complexities of the National Law”. That hardly helps the Board on the present issue. It must live with its own disabilities.
- I am of the opinion that Dr Lee was disadvantaged and that the Board's conduct or inadequacy would justify awarding a substantial part of the costs against it in relation to the compulsory conference, or alternatively, allowing a reduction in the costs that would otherwise be ordered against Dr Lee. The costs discretion is wide, and the QCAT Act encourages the Tribunal to fix the costs itself. I have in another case expressed the view that the discretion “is an extremely wide one and is to be exercised robustly.”
- It is preferable that costs not be increased by requiring assessments to be made of the respective costs of the parties in different aspects of the litigation. It is preferable that an order be formulated which simply deprives the Board of a proportion of the costs that it would otherwise obtain.
- In my view, having examined the file and the course of the litigation, the appropriate order is that Dr Lee should be ordered to pay 75% of the Board’s costs to be assessed.
 Under s 74(1) of the QCAT Act, “evidence of anything said or done during a compulsory conference for a proceeding is not admissible at any stage in the proceeding.”
 Parties have the right to request reasons under s 122 of the QCAT Act.
 QCAT Act, 74(2)(a)
 Board’s submissions, 28 and 29.
 The former s 195 of the National Law was repealed by the Health Ombudsman Act 2013 (Qld).
  QCAT 61.
 Schedule 1 to the HO Act: "disciplinary proceeding means a proceeding for which QCAT has jurisdiction under section 94(1) or (2)."
 Walter v Council of Queensland Law Society (1988) 62 ALJR 153, ; New South Wales Bar Association v Evatt (1968) 117 CLR 177, 183-184. Compare the wide definition given to such a term in Commission for Safety and Rehabilitation of Commonwealth Employees v Chenhall (1992) 109 ALR 261.
 QCAT Act, s 19.
 Tamawood Ltd & Anor v Paans  QCA 111, .
 Ibid, .
 This qualification is expressed in paragraphs  and  of Tamawood.
 QCAT Act, s 107.
 Cruceru v Medical Board of Australia 2016 QCAT 111 .
- Published Case Name:
Lee v Medical Board of Australia (No 2)
- Shortened Case Name:
Lee v Medical Board of Australia (No 2)
 QCAT 321
Judicial Member Thomas
19 Sep 2016