Nursing and Midwifery Board of Australia v Karen Faulkner (No 2)
[2017] QCAT 273
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- Unreported Judgment
- Nursing and Midwifery Board of Australia v Karen Faulkner (No 2)[2017] QCAT 273
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Nursing and Midwifery Board of Australia v Karen Faulkner (No 2)[2017] QCAT 273
Nursing and Midwifery Board of Australia v Karen Faulkner (No 2)[2017] QCAT 273
CITATION: | Nursing and Midwifery Board of Australia v Faulkner (No 2) [2017] QCAT 273 |
PARTIES: | Nursing and Midwifery Board of Australia (Applicant) v Karen Faulkner (Respondent) |
APPLICATION NUMBER: | OCR028-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge S Sheridan, Acting President |
DELIVERED ON: | 25 August 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the practitioner put the Board to proof and challenged the evidence on which the Board sought to rely – where the Tribunal found that the practitioner had behaved in a way that constituted professional conduct following an oral hearing – where the parties were subsequently asked to make written submissions on the question of costs – whether the practitioner should pay the costs of the proceedings Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Health Ombudsman v Antley [2016] QCAT 472, cited Medical Board of Australia v Holding [2014] QCAT 632, distinguished Medical Board of Australia v Wong [2017] QCA 42, cited Pharmacy Board of Australia v Brenton [2011] QCAT 302; distinguished Pharmacy Board of Australia v The Registrant [2012] QCAT 515; distinguished Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, considered Tamawood Ltd & Anor v Paans [2005] QCA 111, cited |
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). | |
REPRESENTATIVES: |
|
APPLICANT: | represented by Moray & Agnew Lawyers |
RESPONDENT: | represented by J Allen QC of counsel instructed by Hall Payne Lawyers |
REASONS FOR DECISION
Background
- [1]The Tribunal gave its substantive decision in the matter on 15 May 2017. At the time of making its decision, the Tribunal requested the parties to make written submissions on the question of costs.
- [2]On behalf of the Board, it was submitted that Ms Faulkner should pay the Board’s costs. On behalf of Ms Faulkner, it was submitted each party should bear their own costs.
- [3]Following receipt of the parties’ submissions on costs, the Tribunal invited the parties to file further submissions in relation to, if the Tribunal were to consider it necessary in the interests of justice to make a costs order, whether or not the Tribunal should fix costs, and if so, what would be the appropriate amount of fixed costs. On behalf of the Board, it was submitted that it was possible for the Tribunal to fix costs and it should do so in the amount sought by the Board. No further submissions were filed on behalf of Ms Faulkner.
Power to Award Costs
- [4]It is accepted by the parties that the Tribunal’s power to award costs is pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and not under the Health Practitioner Regulation National Law Queensland (National Law). The current proceedings were filed after the commencement of the Health Ombudsman Act 2013 (Qld) (HO Act). By the introduction of the HO Act, the previous unfettered discretion under the National Law afforded to tribunals to award costs was removed.
- [5]Under the previous statutory regime, the usual approach taken by tribunals on referrals of disciplinary action was that costs followed the event, absent some sufficient contra-indication.
- [6]The effect of the legislative change is that the parties must each pay their own costs unless “the interests of justice require”[1] the Tribunal to make a costs order against a party. The effect is that the approach laid down for the Tribunal from its inception, under the QCAT Act, is now applicable to health disciplinary matters.[2]
- [7]Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters that it may have regard to in considering whether the interests of justice require a costs order including, as identified by the Board in its submissions, the nature and complexity of the dispute, the relative strengths of the claims made by each of the parties, the financial circumstances of the parties and anything else the Tribunal considers relevant.
- [8]The former President of the Tribunal, Justice Wilson, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2),[3] formulated the question for the Tribunal under the QCAT Act as:
“…whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.”[4]
- [9]In Ralacom, Justice Wilson had occasion to discuss the Court of Appeal’s decision in Tamawood Ltd and Anor v Paans,[5] a case decided under the costs provisions of the now repealed Commercial and Consumer Tribunal Act 2003 (CCT Act).
- [10]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.[6]
- [11]In discussing Tamawood, Justice Wilson said, in referring to the comments of Keane JA, “[t]hat conclusion must, here, be considered in the light of the difference between s 70 of the CCT Act and s 100 of the QCAT Act.”[7] Nevertheless, Justice Wilson considered that the principles found in Tamawood provided guidance about the circumstances in which it may be in the interests of justice for this Tribunal to award costs against parties.
- [12]Consistent with the approach taken by Justice Wilson and, more recently, Judicial Member Thomas in Health Ombudsman v Antley,[8] the proper approach for the Tribunal in the present case is whether there are “countervailing considerations.” The Court of Appeal in Medical Board of Australia v Wong,[9] described it as “a basis for departing from the default position.”[10]
- [13]In Antley, Judicial Member Thomas, after discussing Tamawood, said:
Different factors may well operate in commercial litigation to make it in the interests of justice to order costs against the losing party to those in cases in the disciplinary jurisdiction concerning health workers.[11]
- [14]Judicial Member Thomas referred to the change in the nature of the disciplinary jurisdiction to include not only “health practitioners” but also “health service providers” and so extending the regime to employees on wages, many of whom are on relatively low incomes; the apparent escalation in the quantum of costs generally and the potential crippling effect of some orders with the potential punitive element. Judicial Member Thomas referred to the fact that, in his experience, costs assessments of $40,000 and above are not uncommon.
- [15]Judicial Member Thomas said a crippling or punitive effect of such an order upon a party is capable of being a relevant factor in determining whether it is in the interests of justice to make such an order.
- [16]A factor of undoubted importance in Antley, in the Tribunal making its decision on costs, was the admission by the respondent nurse that she had transgressed, her co-operative attitude resulting in consensus being reached at the compulsory conference and agreement that the matter could be determined on the papers.
- [17]After making those observations, however, Judicial Member Thomas recognised that factors favouring a costs order may well exist when a respondent protracts the litigation by mounting an unmeritorious defence or by needlessly complicating the litigation.[12]
- [18]In its submissions, the Board referred to Ms Faulkner’s conduct; in particular, to Ms Faulkner’s persistence in disputing what the Board described as the “dishonesty issues”; namely the information provided to her colleague Ms Edwards and her taking of another colleague’s handbag. The Board referred to its “without prejudice save as costs” letter dated 4 August 2015, which letter was sent following the compulsory conference between the parties and the subsequent statement filed by the Board on 27 November 2015. In the letter the Board stressed the extent of the evidence against Ms Faulkner.
- [19]The respondent continued to refuse to make any admissions and the matter proceeded to a hearing. Multiple witnesses were required to provide affidavit evidence and one nurse was required for cross-examination.
- [20]As submitted by the Board, there is no doubt that each of the factual issues contested by Ms Faulkner prolonged the litigation. The Tribunal did not accept the evidence of Ms Faulkner, preferring the evidence of the Board’s witnesses including that of Ms Edwards.
- [21]In giving the Tribunal’s decision, I commented that unfortunately Ms Faulkner had not reached a point where she was prepared to admit her failings. While a practitioner in Ms Faulkner’s position is clearly entitled to put a regulatory authority to proof and to challenge the evidence on which it relies, that conduct may be a relevant consideration in determining whether it is in the interests of justice to make an award of costs.
- [22]The Tribunal considers that in this case, the conduct of Ms Faulkner is sufficient reason to justify the making of an order for costs.
Nature of Costs Order
- [23]Having so decided, the questions remaining are, firstly, whether such order should be limited in nature and, secondly, whether the Tribunal should fix costs.
- [24]Pursuant to s 102(1) of the QCAT Act, in exercising its discretion, the Tribunal can make an order requiring the payment of all or a stated part of the costs. Section 107 of the QCAT Act contemplates that the Tribunal will fix costs whenever possible.
- [25]Having regard to the objects of the QCAT Act, the discretion to fix costs under s 107 has been described as “an extremely wide one” and one which should be “exercised robustly.”[13]
- [26]In its submissions, the Board seeks an order for its costs on a standard basis. The Board has filed affidavits from its instructing solicitor in support of its submission that the sum of $53,571.39 is a reasonable estimate of the Board’s costs on a standard basis and that that amount does not represent the Board’s total costs.
- [27]In its submission, the Board referred to the proceedings having been brought by the Board in the public interest and in furtherance of the Board’s statutory obligations, and the Board being entirely funded by registration fees paid by registrants. There is no doubt that in the exercise of the Tribunal’s costs discretion under the National Law such fact was often referred to as being a relevant consideration.[14] Judicial Member Thomas in Antley commented, however, that he does not think the professional board should any longer be regarded as in a favoured position vis a vis a practitioner when costs issues are to be decided.[15]
- [28]Given the disclosed quantum of costs here, a relevant consideration is whether the award of costs should be limited in any respect. The factors to which Judicial Member Thomas referred in Antley seem particularly relevant. Ms Faulkner is a nurse and an employee on wages. Based on her affidavit, after paying her weekly expenses, she has approximately $250.00 of disposable income leftover. At the time of swearing her affidavit, she deposes to having only $50.00 in savings, having just made a contribution to her daughter’s wedding in November 2017. She deposes to living on a single income.
- [29]An order for the payment by Ms Faulkner of an amount in excess of $50,000.00 would, in her circumstances, have a crippling effect with the resultant punitive element. I agree with the comments of Judicial Member Thomas that such a result is a relevant factor in the exercise of the Tribunal’s discretion.
- [30]In giving the decision in the substantive proceedings, I referred to the changes made by Ms Faulkner to her working hours and commented that “if she continues to work in the manner she is working now, it would be unlikely that there would be reoffending”.[16] In these circumstances, Ms Faulkner has limited capacity, if any, to increase her weekly income and nor would it be in her interests, or that of her profession or the public, for her work hours to significantly increase.
- [31]However, as submitted by the Board, “in the absence of a potential costs order, there is… little incentive for a professional facing disciplinary proceedings to make appropriate and timely (early) admissions.”[17] The Board referred to its without prejudice correspondence where it had detailed its evidence and suggested that the respondent’s continued defence of the matters detailed was not sustainable.
- [32]Unfortunately, Ms Faulkner refused to make any admissions on those issues. The substantive proceedings were unnecessarily protracted because of her conduct and her continuing inability to be prepared to admit her failings.
Orders
- [33]Taking all matters into account, the Tribunal considers it is appropriate to fix costs and considers that costs should be fixed in the amount of $20,000.
- [34]It is clear from the affidavit of Ms Faulkner that Ms Faulkner does not have the capacity to make such payment by way of a lump sum. The parties will need to agree a payment plan. The Tribunal will order the parties agree a payment plan within 14 days. Absent agreement, the Tribunal will order the parties to each file in the Tribunal a proposed payment plan with any supporting evidence within 28 days of the making of this order.
- [35]The Tribunal will then determine the payment plan on the papers.
Footnotes
[1] QCAT Act, s 102.
[2] QCAT Act, ss 100-107.
[3] [2010] QCAT 412 (Ralacom).
[4] Ibid, [29].
[5] Tamawood Ltd & Anor v Paans [2005] QCA 111 (Tamawood).
[6] Ibid, [30]
[7] Ralacom, [27].
[8] [2016] QCAT 472 (Antley).
[9] Medical Board of Australia v Wong [2017] QCA 42.
[10] Ibid, [35].
[11] Antley, [64].
[12] Ibid, [76].
[13] Cruceru v Medical Board of Australia [2016] QCAT 111, [49].
[14] Pharmacy Board of Australia v Brenton [2011] QCAT 302; Pharmacy Board of Australia v The Registrant [2012] QCAT 515; Medical Board of Australia v Holding [2014] QCAT 632.
[15] Antley, [79].
[16] Faulkner, [50].
[17] Applicant’s submissions on costs filed 22 May 2017, [29].