Psychology Board of Australia v Freeman
[2017] QCAT 462
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- Unreported Judgment
- Psychology Board of Australia v Freeman[2017] QCAT 462
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Psychology Board of Australia v Freeman[2017] QCAT 462
Psychology Board of Australia v Freeman[2017] QCAT 462
CITATION: | Psychology Board of Australia v Freeman (No 3) [2017] QCAT 462 |
PARTIES: | PSYCHOLOGY BOARD OF AUSTRALIA (applicant) v DR JAMES EDWIN FREEMAN (respondent) |
APPLICATION NUMBER: | OCR257-11 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Alexander Horneman-Wren SC, DCJ |
DELIVERED ON: | 15 December 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH AND MEDICAL PRACTITIONERS – COSTS DETERMINATION – where application for costs is heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether the respondent is entitled to costs of and incidental to the proceedings being paid by the applicant – where the respondent is entitled to costs of the proceeding excluding those associated with an application to exclude certain evidence – where the respondent ordered to pay the applicant’s costs in respect of the application to exclude certain evidence – where costs awarded on a standard basis |
APPEARANCES AND REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
- [1]In dismissing the referral, the Psychology Board of Australia having failed to make out any of the allegations upon which it relied to establish that Dr Freeman’s assessment of Mr Moore was inappropriate, the Tribunal expressed the preliminary view that this was a matter in which Dr Freeman should have his costs. The parties have made submissions on the issue.
- [2]For the reasons which follow, Dr Freeman should have his costs of the proceeding, excluding those associated with the application to exclude Professor Smallbone’s evidence. He should pay the Board’s costs of that application.
THE APPLICABLE LEGISLATIVE PROVISIONS
- [3]Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 provides:
“100 Each party usually bears own costs
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.”
- [4]Section 102 provides:
“102 Costs against party in interests of justice
- (1)The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
- (2)However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
- (3)In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
- (a)whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48 (1) (a) to (g);
- (b)the nature and complexity of the dispute the subject of the proceeding;
- (c)the relative strengths of the claims made by each of the parties to the proceeding;
- (d)for a proceeding for the review of a reviewable decision—
- (i)whether the applicant was afforded natural justice by the decision-maker for the decision; and
- (ii)whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
- (e)the financial circumstances of the parties to the proceeding;
- (f)anything else the tribunal considers relevant.”
- [5]An enabling Act for the QCAT Act is defined by s 6(2)(a) to include an Act, other than the QCAT Act, that confers original, review or appeal jurisdiction on this Tribunal. The Health Practitioner’s (Disciplinary Proceedings) Act 1999, under which the proceedings were referred to the Tribunal, is such an enabling Act. Part 6, Division 6, of the Disciplinary Proceedings Act, by s 211(1)(a), confers jurisdiction on the Tribunal to hear all disciplinary matters referred by a board under s 126 of the Disciplinary Proceedings Act.
- [6]Section 255(1) of the Disciplinary Proceedings Act provides that the Tribunal may make any order about costs it considers appropriate for disciplinary proceedings. Section 255(2)(a) limits those costs to those that would be allowable if the disciplinary proceedings were proceedings in the District Court.
- [7]Section 255 of the Disciplinary Proceedings Act thereby displaces the general position as to costs for proceedings in the Tribunal set out under s 100 and s 102 of the QCAT Act.
- [8]The submissions on behalf of Dr Freeman are made on the basis of the applicable provisions as to costs being s 100 and s 102 of the QCAT Act. They are made on the basis that this is an appropriate case for the exercise of the discretion to award Dr Freeman his costs pursuant to s 102. That is, that the Tribunal would conclude that the interests of justice require it to make an order requiring the Board to pay Dr Freeman’s costs.
- [9]As already explained, ss 100 and 102 of the QCAT Act do not govern the question of costs in these proceedings. The respondent’s submissions are mistaken in that regard. However, that is not to say that the issues raised by the respondent, which he submits would lead the Tribunal to conclude that an award of costs in his favour is required in the interest of justice, are not relevant to the consideration of an appropriate order about costs which arises under s 255 of the Disciplinary Proceedings Act.
- [10]The submissions on behalf of the Board, correctly, proceed on the basis that it is s 255 of the Disciplinary Proceedings Act, not ss 100 and 102 of the QCAT Act, which govern the issue of costs in this matter.
THE BOARD’S SUBMISSIONS
- [11]The Board concedes that s 255 of the Disciplinary Proceedings Act confers a wide discretion upon the Tribunal in relation to awarding costs in disciplinary matters, but identifies that the discretion is to be exercised judicially.
- [12]The Board refers to the main objects of the Disciplinary Proceedings Act, as expressed in s 6, of the protection of the public, the upholding of the standards of practice within the health professions, and the maintaining of public confidence in the health professions. It identifies that those objects are reflected in the purposes of disciplinary proceedings prescribed in s 123. It submits that its decision to commence these disciplinary proceedings was in accordance with those objects, and that in bringing the proceedings it was genuinely exercising a public interest function in regulating the profession.
- [13]In that context, the Board refers to the decision of the Queensland Health Practitioner’s Tribunal in Medical Board of Queensland v Heiner[1] in which the Tribunal stated:
“The mere fact that a board has been unsuccessful in its prosecution of a registrant should not automatically result in an award of costs against the Board. There may well be cases in which the registrant’s conduct has so contributed to the bringing of the charge that it would be unjust to make such an order.”
- [14]The Board submits that although costs were awarded against the Board in that matter, it was “of important significance in the Tribunal’s decision to award costs to the registrant was the fact that, during the investigations, the Board commissioned a report from an expert who expressed that the registrant had not behaved in a manner which constituted unsatisfactory professional conduct.”
- [15]The Board submits that in this matter it relied on the expert opinion of Professor Smallbone which was critical of aspects of Dr Freeman’s professional standards and “raised matters before the Board to be tested in an adversarial manner” either before a professional conduct review panel or the Tribunal. It submits that in commencing the disciplinary proceeding it acted in good faith. In that regard, the Board submits that:
“It did not necessarily have to hold opinion evidence which categorically opined that the conduct fitted the definition of unsatisfactory professional conduct as it then existed. An opinion of that nature is one for either a panel or Tribunal to find as an ultimate issue in any proceedings.”
- [16]The Board further submits that:
“The Tribunal itself did not arrive at its decision in this case readily, and in the process has weighed up the competing issues of professional standards. The findings in relation to the competing professional opinions resulting in the dismissal of the referral were not based on any lack of good faith on the part of Professor Smallbone. Further the Tribunal did not find it necessary to make findings as to the alleged bias of Professor Smallbone.”
- [17]The Board submits that it held a reasonable belief that a disciplinary matter existed against Dr Freeman, and that, as was said in Coppa v Medical Board of Australia:[2]
“The matters subject of belief do not need to be proven on the balance of probabilities. It is necessary that the Board hold a reasonable belief about the requisite matters, not about whether those matters were the fact.”
- [18]It submits that it acted with reasonable reliance on the expert opinion of Professor Smallbone and that whilst aspects of his evidence were redacted because they were inadmissible, “the key issues in dispute as remaining were subject of particular analysis by the Tribunal.” It points also to an absence of finding of bias against Professor Smallbone.
- [19]The Board submissions described as a “key finding” of the Tribunal in dismissing the referral that while Professor Smallbone’s report identified matters which may have assisted the process of diagnosis or provided an alternative, or even better or additional assessment methods, it did not establish the failure to meet the standards reasonably expected of a psychologist by his professional peers or the public.
- [20]The submissions of the Board note that the Tribunal found that Dr Freeman, in his evidence, readily made concessions where appropriate. It then submits that this “indicates that the respondent was not without fault in his conduct”, and that those concessions “were obtained during the hearing and were not concessions made in the affidavit material which warranted to (sic) the matter progressing to trial.”
- [21]The Board observes that the Tribunal did not find that its position had no merit or that its action was without substance.
- [22]The Board points to a number of policy considerations which it submits favour there being no order as to costs on public interests grounds, including that the funding for its regulatory functions is restricted to registration fees levied upon its registrants. Further, it did not conduct itself in a way that delayed or lengthened proceedings, or in a manner that was likely to increase costs.
- [23]It makes the following submissions in regard to policy considerations:
“The Board submits that in order for it to carry out its legislative function of protecting the public and upholding standards of the profession it should be entitled to commence disciplinary actions without fear of adverse costs outcomes, provided it acts reasonably and in good faith, and has made its decision upon material sufficient to amount to an arguable case on the merits.
It is contrary to the public interest that those responsible for instituting disciplinary proceedings before the Tribunal should be deterred by fear of an adverse costs order.
The mere fact that a Board has been unsuccessful in its prosecution should not automatically result in an award of costs against that Board.”
- [24]Finally, the Board submits that although it was Dr Freeman’s right to have challenged the proceedings by referral to the Tribunal, by electing to do so he brought the proceedings into a regime where considerable costs are incurred in a public forum. By contrast, it submits that “alternative independent panel level proceedings are designed to allow lower level disciplinary proceedings to be dealt with cost effectively, more informally, and also in a setting where discrete non-public hearings are convened.” The Board submits that those factors are relevant to the consideration as to costs in these proceedings.
SUBMISSIONS ON BEHALF OF DR FREEMAN
- [25]As already noted, Dr Freeman’s submissions were directed to an exercise of the discretion to award costs in the interest of justice pursuant to s 102 of the QCAT Act, and were, consequently, not made directly in respect of the jurisdiction conferred under s 255 of the Disciplinary Proceedings Act. However, establishing that it was in the interests of justice to have the benefit of a costs order may be a proper basis for the Tribunal to consider that such was an appropriate order in exercise of the jurisdiction conferred by s 255.
- [26]It is submitted for Dr Freeman that the referral raised numerous issues of complexity, and made several serious allegations all of which challenged his conduct as a professional and included an allegation that he had demonstrated incompetence.
- [27]Dr Freeman’s submissions note that the referral was amended before the commencement of the hearing and that the case which was ultimately advanced was different to that which had been brought initially. It attempted to move away from a case of wrongful diagnosis to one of wrongful assessment; no longer relying upon a further report of Professor Smallbone.
- [28]It is submitted for Dr Freeman that if he were to protect his professional reputation, he had no choice but to meet the allegations and deal with the content of several expert reports by Professor Smallbone and respond accordingly. He gave evidence, was cross-examined and was found to be an impressive witness.
- [29]As such it is submitted that he could not be said to have acted unreasonably in meeting the complaint, or in his conduct of the proceedings. The submissions detail a number of matters which it is submitted demonstrate that he undertook a reasonable course to attempt to bring the matter to conclusion.
- [30]Reference is made to two detailed written submissions made to the Board in November 2012 and April 2013. In the first, which ran for some 30 pages, the Board was invited to discontinue the proceedings.
- [31]It is submitted that the referral could not be described as ordinary or as not requiring a great deal of work.
- [32]It is submitted that it would be demonstrably unfair for Dr Freeman, having met the procedure and succeeded in respect of each of the six remaining allegations against him, not to receive his costs.
CONSIDERATION
- [33]The Board’s submission that s 255 of the Disciplinary Proceeding Act confers a broad discretion upon the Tribunal with respect to costs which must be exercised judicially, is undoubtedly correct. It is also correct to identify that the fact that the Board brings disciplinary proceedings in furtherance of the main objects of the Disciplinary Proceeding Act, and that it does so funded by the fees paid by registrants. These matters will almost always be relevant to a consideration of whether the Board ought be ordered to pay costs.
- [34]So too the Board is correct to identify that what is required for it to commence disciplinary proceedings is a reasonable belief that a disciplinary matter exists in relation to a registrant,[3] and that this does not require it to hold evidence in the form of a categorically expressed opinion that a registrant has engaged in conduct which falls within the definition of unsatisfactory professional conduct; that being the ultimate issue in a disciplinary proceeding. No expert can conclusively swear that issue. It will always be an issue for the Tribunal to determine. That is not to say, however, that a relevantly qualified expert cannot express an opinion about matters such as the standards which might reasonably be expected by the registrant’s professional peers.
- [35]In its substantive decision[4] on the referral, the Tribunal observed that in asking Professor Smallbone whether Dr Freeman’s psychological assessment of the prisoner was professional and appropriate, his attention was not directed to the issues directly relevant to the proceedings, and that Professor Smallbone’s evidence was that, had it been, his report would have taken a different form and possibly would have been differently expressed. This does not suggest that the Board ought to have had a report from Professor Smallbone, or any other expert, which purported to decide the issue.
- [36]However, I am not of the view that cases in which costs may be awarded against the Board ought to be restricted to those, like in Heiner, where the Board is in possession of expert opinion that a registrant had not behaved in a manner which constituted unsatisfactory professional conduct. That would unduly fetter the broad discretion conferred by s 255.
- [37]As the board’s submissions acknowledge, the Tribunal found that Professor Smallbone’s report did not establish a failure on Dr Freeman’s part to meet the standards reasonably expected by his peers or the public. Although not directed to those particular issues, Professor Smallbone had communicated some reservations about his report in that regard in the email attaching his report[5] in which he had said “while I think there are quite serious shortcomings in Dr Freeman’s report, I am not altogether comfortable about singling him out in a way that suggests his work is a major departure from the prevailing standards.” In respect of that, in his evidence before the Tribunal he said “It, certainly, in my mind, falls within the range of prevailing standards that are operating.” [6]
- [38]Nor do I accept the Board’s submission that in order for it to carry out its legislative functions it should be entitled to commence disciplinary actions without fear of adverse costs outcomes, provided it acts reasonably and in good faith, and has made its decision upon material sufficient to amount to an arguable case on the merits. That would, effectively, restrict the circumstances in which a registrant may obtain a costs order to those in which the Board had acted unreasonably or in bad faith, or where its case was inarguable. That too would unduly fetter the discretion in a way not intended by the legislature. In my view, the Board’s performance of its legislative functions are not dependent upon an ability to commence proceedings knowing that costs may only be awarded against it in the circumstances it identifies. The history of this Board, and others, having discharged its legislative functions without such a gloss on s 255 demonstrates that.
- [39]It may be accepted that the Board had a reasonable belief that a disciplinary matter existed; so much is required before the Board may start disciplinary proceedings. Absent such a belief, it is not authorised to start proceedings. The existence of the belief necessary to commence proceedings should not preclude the making of a costs order against the Board in an appropriate case. An absence of the belief necessary to commence proceedings would, almost certainly, result in the making of costs order against the Board because it would mean that the proceedings were commenced in circumstances in which the condition precedent for doing so did not exist.
- [40]It is most certainly the case, as was said in Heiner, that the mere fact that the Board has been unsuccessful should not automatically result in an award of costs against the Board. If it were so, the broad discretion in s 255 would be set aside and replaced with a rule that, effectively, costs follow the event. However, that there should be no automatic order of costs against a board because of the mere fact of a failure to successfully prosecute a case should not result in there being, automatically, no order as to costs in cases of unsuccessful prosecution except if certain matters, such as unreasonableness or bad faith, can be established on the part of the board, or a finding is made that the Board’s position was without substance or had no merit.
- [41]Furthermore, it is to be borne in mind that in Heiner “cases in which the registrant’s conduct has so contributed to the bringing of the charge that it would be unjust to make such an order” were identified as those (or amongst those) in which an unsuccessful prosecution might not result in an award of costs against the Board. Heiner is authority for the proposition that there will be cases in which it will not be appropriate to award costs against a board notwithstanding that the prosecution was unsuccessful. It is not authority for the proposition that costs will only be awarded against a board in limited or exceptional circumstances.
- [42]So too, the public interest in a board not being deterred in instituting disciplinary proceedings by fear of an adverse costs order should not result in a board enjoying an immunity from costs orders except for in exceptional circumstances.
- [43]Such rigid preconceptions, either for or against the ordering of costs in favour of a registrant against an unsuccessful board, do not sit easily with the exercise of the discretion under s 255. The exercise of that discretion requires the Tribunal to consider what, if any, order about costs is appropriate in all of the circumstances of the particular disciplinary proceeding. As has already been observed, the public policy considerations referred to by the Board will almost always be relevant considerations on any occasion on which the discretion is called upon to be exercised; but there will be other considerations also.
- [44]Having given consideration to the submissions of both parties, and all the circumstances, I consider that it is appropriate for Dr Freeman to have most, but not all, of his costs. I also consider it appropriate that he should pay the Board’s costs associated with his application to exclude Professor Smallbone’s evidence.[7]
- [45]As the submissions for the Board make clear, the disciplinary proceedings against Dr Freeman were brought on the basis of the report of Professor Smallbone. It is to that fact which the Board points in submitting that the proceeding was commenced reasonably and in good faith. Professor Smallbone was the only witness in the Board’s case. As ultimately advanced, the case for the Board, based on Professor Smallbone’s report, was not that Dr Freeman had misdiagnosed the prisoner, but that the process undertaken by him was not sufficient for him to come to a firmly stated conclusion that the prisoner was suffering from a borderline personality disorder. That case was advanced by the Board in the absence of any challenge to the correctness of Dr Freeman’s diagnosis.
- [46]There were six particular criticisms of Dr Freeman by Professor Smallbone which formed the facts and circumstances of the disciplinary case against him. I do not propose repeating what was said in the reasons in the substantive decision, however, the following points can be briefly made in respect of some of those matters.
- [47]In respect of the first allegation, it was found that “quite obviously” from his report, Dr Freeman did consider what Professor Smallbone considered the other plausible hypothesis.
- [48]In respect of the second allegation, which was that Dr Freeman did not systematically assess the prisoner’s motivation for self-harm, it was found that he “clearly did consider those motivations”, and that he had done so was evident from his report.
- [49]The third allegation was that Dr Freeman did not consider any potential alternative condition open on the evidence. The Tribunal noted that no alternative condition was actually advanced by the Board as being open, but in any event it was “readily apparent that Dr Freeman did consider other potential conditions”, and that this was apparent from his report.
- [50]The sixth allegation included that Dr Freeman did not conduct a functional behavioural assessment. However, Professor Smallbone agreed that what was described in paragraph 9.2 of Dr Freeman’s report was a form of functional behavioural assessment.
- [51]Ultimately, the Tribunal concluded that none of the allegations relied upon by the Board had been made out, and that there was no basis upon which it could be concluded that Dr Freeman had engaged in unsatisfactory professional conduct. The Tribunal found that was able to reach “these conclusions clearly on the evidence, even taking Professor Smallnbone’s evidence at its highest.” It was because of that that the Tribunal found it unnecessary to rule upon the issues of bias.
- [52]This was, therefore, a case in which the critisisms of Professor Smallbone which provided the basis for the disciplinary proceeding were found to be wrong; and in respect of four of the six allegations, were so on the face of the report of Dr Freeman which Professor Smallbone had critiqued. Considered in that context, the Board’s submission that “the Tribunal did not itself arrive at its decision in this case readily” is not correct. That the issues “were the subject of particular analysis by the Tribunal” says no more than the Tribunal discharged its adjudicative function in respect of all the issues raised in the proceedings. No single issue required more than nine paragraphs of analysis: most required many fewer.
- [53]The Board’s submission that the Tribunal’s finding that Dr Freeman readily made concessions where appropriate indicates that he was not without fault in his conduct, seeks to make too much of that finding. The finding was made in the context of a broader finding that Dr Freeman was an impressive witness. The concessions themselves were that he had omitted to mention in his report the incident of self-harm on the day that he visited the prisoner, which should have been included, and that he could not remember if he considered the DSM-IV criteria for ADHD. Those concessions, insofar as they may be thought to reflect “fault in his conduct” could only do so in the most minimal way, and to a minimal extent in the context of the case brought against him. It certainly does not approach conduct which “has so contributed to the bringing of the charge that it would be unjust to make such an order (for costs)” as referred to in Heiner.
- [54]Whilst the Board is correct in its submission that it was Dr Freeman exercising his rights which led to the matter being dealt with in QCAT rather than by a panel, his decision to do so has been vindicated.[8] Although a panel when conducting a hearing must comply with natural justice,[9] it is not bound by the rules of evidence.[10] Furthermore, although a registrant is permitted to be accompanied by a lawyer at the hearing before a panel, the lawyer is not entitled to appear on behalf of the registrant.[11]
- [55]In this matter, Dr Freeman’s counsel succeeded in numerous objections to evidence. That resulted in much of the evidence of Professor Smallbone being ruled inadmissible such that a heavily redacted version of his report was admitted. Those objections could not have been advanced by counsel before a panel. Even if Dr Freeman advanced the objections himself, the panel, not being bound by the rules of evidence, may have admitted the report with the objectionable content anyway.
- [56]Furthermore, although the referral of the disciplinary matter to the Tribunal rather than a panel meant that there would be greater legal costs associated with the hearing, it is by no means the case that had the matter been before a panel there would have been no legal costs. The same submissions made in writing to the Board would in all likelihood have been made by lawyers on Dr Freeman’s behalf. It is also likely that the preparation of the case would have been very similar, although at the hearing Dr Freeman would not have been able to have a lawyer appear for him. Had the board been successful, it would have been justified to itself seek costs.
- [57]By requiring the matter to be referred to the Tribunal, Dr Freeman also exposed himself to the potential of a substantial order for costs being made against him in the event that the Board’s case was successful. The Board, no doubt, would also have incurred considerable legal costs had the matter been before a panel; but those costs would not have been recoverable against Dr Freeman. Dr Freeman requiring the matter to be referred to the Tribunal had, for the Board, the benefit that it too could have a lawyer appear for it at the hearing. It would have been unable to do so had the matter been before a panel.[12]
- [58]In my view, the fact that proceedings before a panel are conducted in private, whereas those conducted before the Tribunal are public, is of no consequence to the issue of costs.
- [59]Taking all of these matters into consideration, I am of the view that this is an appropriate case for Dr Freeman to have his costs, but with the exception of the costs associated with his application to exclude Professor Smallbone’s evidence. That application failed. The opinions of Professor Smallbone were ruled, generally, to be admissible.[13] That was because no challenge had been made in that application to either their relevance or his expertise in expressing them.[14]
- [60]The costs of that application were reserved. In my view, it is appropriate that Dr Freeman pay the Board’s costs of and incidental to that application.
Disposition
- [61]The Tribunal’s orders shall be:
- The applicant is to pay the respondent’s costs of and incidental to the proceedings assessed on the standard basis for matters in the District Court of Queensland except those costs of and incidental to the respondent’s application to exclude the evidence of Professor Smallbone.
- The respondent is to pay the applicant’s costs of and incidental to his application to exclude the evidence of Professor Smallbone assessed on the standard basis for matters in the District Court of Queensland.
Footnotes
[1][2008] QHPT 001.
[2][2014] NTSC 48 at [54].
[3]Section 125 Disciplinary Proceedings Act 1999.
[4]At para [25].
[5]Exhibit 1.
[6]Transcript 1- 46 lines 39-41.
[7]Those costs were reserved.
[8]Compare Psychology Board of Australia v Tubarao (No 2) [2015] QCAT 141.
[9]Section 179(1)(a).
[10]Section 179(1)(c).
[11]Section 182(3).
[12]Section 182(2).
[13]Subject of particular objections.
[14]Psychology Board of Australia v Freeman [2013] QCAT 701 at [22].