Greer v Medical Board of Australia
[2017] QCAT 405
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- Unreported Judgment
- Greer v Medical Board of Australia[2017] QCAT 405
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Greer v Medical Board of Australia[2017] QCAT 405
Greer v Medical Board of Australia[2017] QCAT 405
CITATION: | Greer v Medical Board of Australia [2017] QCAT 405 |
PARTIES: | Marshall Greer (Applicant) v Medical Board of Australia (Respondent) |
APPLICATION NUMBER: | OCR095-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge S Sheridan, Deputy President |
DELIVERED ON: | 30 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where the practitioner appealed the imposition of conditions upon his registration – where the Tribunal dismissed the appeal and confirmed the Medical Board of Australia’s decision to impose conditions upon the practitioner’s registration – where the parties were subsequently requested to make submissions on costs – whether the interests of justice require the Tribunal to make an order as to costs Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102 Health Practitioner Regulation National Law (Queensland), s 199(1)(e) Cruceru v Medical Board of Australia [2016] QCAT 111, cited Medical Board of Australia v Wong [2017] QCA 42, cited Ralacom Pty Ltd v Body Corporate for Paradise Apartments (No 2) [2010] QCAT 412, cited Lee v Medical Board of Australia (No 2) [2016] QCAT 321, considered Health Ombudsman v Antley [2016] QCAT 472, cited |
REPRESENTATIVES: |
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APPLICANT: | The applicant appeared on his own behalf |
RESPONDENT: | represented by Moray & Agnew Lawyers |
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:
BACKGROUND
- [1]The Tribunal gave its substantive decision in the matter on 21 December 2016. At the time of making its decision, the Tribunal requested the parties to make written submissions on the question of costs.
- [2]Dr Greer filed submissions refuting the entitlement of the Medical Board of Australia (Board) to its costs. Dr Greer appeared to be asking for the payment of his costs. The Board seeks its costs in respect of the review application but not its costs of the stay application.
APPLICABLE LAW
- [3]The substantive proceedings were an appeal by Dr Greer against the decision by the Board to impose conditions on his registration brought pursuant to s 199(1)(e) of the Health Practitioner Regulation National Law (Queensland) (National Law). The Tribunal is the appropriate responsible tribunal for the appellable decision and the appeal is treated as a review of a reviewable decision.[1]
- [4]Section 201 of the National Law previously allowed the Tribunal on the hearing of such appeals to make any order about costs it considered appropriate. Amendments to the National Law, effective as of 1 November 2013, removed s 201 of the National Law with the result that the issue of costs is now to be addressed in accordance with the provisions of the QCAT Act.
- [5]Pursuant to the QCAT Act, the parties must each bear their own costs unless “the interest of justice require”[2] the Tribunal to make a costs order against a party.
- [6]Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters it may have regard to in considering whether the interests of justice require the making of a costs order. The matters listed include 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.
- [7]The discretion given to the Tribunal under the QCAT Act is described as a “wide one”.[3] However, unlike the previous position under the National Law, under the QCAT Act the starting position is that each party bears its own costs. The question for the Tribunal becomes whether there is a basis for departing from that default position.[4]
- [8]In Ralacom Pty Ltd v Body Corporate for Paradise Apartments (No 2),[5] former QCAT President Justice Wilson formulated the question as:
[W]hether 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.[6]
- [9]In Lee v Medical Board of Australia (No 2),[7] Judicial Member the Honourable James Thomas AM QC considered the Board’s claim for costs in a matter where the practitioner had sought to review a decision of the relevant board to impose conditions on his registration. The review proceedings were ultimately withdrawn by Dr Lee.
- [10]Judicial Member Thomas commented that a wide range of circumstances had to be considered in answering the question whether it is in the interests of justice to make a costs order. Judicial Member Thomas accepted that the fact that professional boards were funded by fees from their practitioner members was relevant to the question of whether it is in the interests of justice for a costs order to be made but said,
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.[8]
- [11]In Health Ombudsman v Antley,[9] Judicial Member Thomas, in refusing to make a costs order in favour of the Health Ombudsman in referral proceedings, identified the circumstances which he considered weighed against the making of a costs order in favour of the Health Ombudsman (and professional boards).
ANALYSIS
- [12]In the present case, the proceedings involved an appeal against a decision of a professional board, not a decision of the Health Ombudsman. In its submissions, the Board referred to not only the financial circumstances of the parties but also the nature and complexity of the proceeding, the relative strengths of the claims made by each of the parties to the proceeding, whether Dr Greer was afforded natural justice by the decision maker for the decision and the efforts at resolution prior to the trial.
- [13]Relevantly, the Board after it had filed its affidavit material, consistent with its earlier conduct, offered to allow Dr Greer to withdraw the proceedings without any order for the payment of its costs. That offer, together with other offers made by the Board, were allowed to lapse.
- [14]As the Board submitted, Dr Greer had poor prospects of succeeding. Ultimately, the Tribunal rejected both of Dr Greer’s grounds of appeal; his challenge to the complainant’s credit and his insistence, even in the light of expert evidence, that his conduct was appropriate.
- [15]His prospects of success and the making of the offers by the Board are not only relevant factors on their own account but they become particularly relevant given that the Board is largely funded by practitioner members. There was no evidence as to the financial position of Dr Greer.
CONCLUSION
- [16]In the circumstances, there are sufficient countervailing factors to warrant a departure from the default position. It is in the interests of justice to make an order that Dr Greer pay the Board’s costs. Those costs should be assessed on the District Court scale, unless the parties can otherwise agree.
- [17]As accepted by the Board, those costs should not include any of the Board’s costs associated with the stay application.