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Nursing and Midwifery Board of Australia v Bates (No 2)[2018] QCAT 102

Nursing and Midwifery Board of Australia v Bates (No 2)[2018] QCAT 102

CITATION:

Nursing and Midwifery Board of Australia v Bates (No. 2) [2018] QCAT 102

PARTIES:

Nursing and Midwifery Board of Australia

(Applicant)

v

Stephanie Patricia Bates

(Respondent)

APPLICATION NUMBER:

OCRO23-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

DECISION OF:

Horneman-Wren SC DCJ

DELIVERED ON:

30 April 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Each party must bear their own costs of the proceeding.

CATCHWORDS:

STATUTES – REPEAL OF PROVISIONS – TRANSITIONAL PROVISIONS – where proceeding properly instituted under former provision but not completed before repeal – where no right accrued as to costs under repealed costs provision – whether costs to be determined under repealed costs provision – where applicable costs provisions are ss 100 and 102 of the QCAT Act.

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where professional misconduct not made out against practitioner – where Board obligated to bring disciplinary proceeding pursuant to former s 193(2) of The National Law – where mandatory nature of proceeding weighs against a costs order against the Board – where issues of credibility necessitated a full hearing – where parties to bear their own costs – where interests of justice do not require a costs order.  

CASES:

Alroe v Medical Board of Australia [2016] QCAT 440

Attorney General (Queensland) v The Australian Industrial Relations Commission (2002) 213 CLR 485

Baxendle-Walker v Law Society [2007] 3 All ER 300

Esber v The Commonwealth (1992) 174 CLR 430

Latoudis v Case (1990) 170 CLR 534

Maxwell v Murphy (1957) 96 CLR 261

Medical Board of Australia v Heiner [2008] QHPT 001

Medical Board of Australia v Wong [2017] QCA 42

Nursing and Midwifery Board of Australia v Bates [2017] QCAT 479

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412

Rodway v The Queen (1999) 169 CLR 515

Tamawood Ltd & Anor v Paans [2005] QCA 111

LEGILSATION:

Commercial and Consumer Tribunal Act 2003 (Qld), s 70, s 71

Health Ombudsman Act 2013 (Qld), s 213, s 326

Health Practitioner’s (Disciplinary Proceedings) Act 1999 (Qld), s 398C

Health Practitioner’s (Professional Standards) Act 1999 (Qld), s 255

Health Practitioner Regulation National Law Act (Queensland) 2009 (Qld), s 193, s 195, s 196, cl 34 sch 7

Magistrates (Summary Proceedings) Act 1975 (Vic), s 97

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Solicitors Act 1974 (UK), s 47

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. [1]
    Disciplinary proceedings against the respondent, Ms Bates, were dismissed by the Tribunal.[1]  The Board failed to establish each of the three grounds for disciplinary action set out in the referral.  The respondent seeks her costs of the proceedings.  The Board submits that the parties should bear their own costs. 

Applicable Legislation

  1. [2]
    Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 provides:

“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.”

  1. [3]
    Section 102 of the QCAT Act provides:

“Costs against party in interests of justice

  1. (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.
  1. (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.
  1. (3)
    In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
  1. (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);
  1. (b)
    the nature and complexity of the dispute the subject of the proceeding;
  1. (c)
    the relative strengths of the claims made by each of the parties to the proceeding;
  1. (d)
    for a proceeding for the review of a reviewable decision—
  1. (i)
    whether the applicant was afforded natural justice by the decision-maker for the decision; and
  2. (ii)
    whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. (e)
    the financial circumstances of the parties to the proceeding;
  1. (f)
    anything else the tribunal considers relevant.
  1. [4]
    The disciplinary proceeding was referred to the Tribunal pursuant to s 193(1)(a) of the Health Practitioner Regulation National Law (Queensland) (The National Law).  At the time of the referral[2], s 195 of The National Law provided:

“The responsible Tribunal may make any order about costs it   considers appropriate for the proceedings.”

  1. [5]
    By s 6 of the Health Practitioner Regulation National Law Act (2009) (The National Law Act) QCAT was declared to be the responsible Tribunal for Queensland for the purposes of The National Law.  The National Law was thus an enabling Act for the QCAT Act, being an Act that conferred original, review or appeal jurisdiction on the Tribunal.[3]
  2. [6]
    By operation of s 398C(1) of the Health Practitioner’s (Disciplinary Proceedings) Act 1999 the Tribunal was given jurisdiction to hear matters referred by national boards under s 193 of The National Law.  By operation of s 398C(2), part 12A of the Disciplinary Proceedings Act was also taken to be an enabling Act for the QCAT Act.
  3. [7]
    Sections 193 to 195 of The National Law were repealed on 1 July 2014.[4] 
  4. [8]
    For the respondent it is submitted that s 195 was saved in respect of proceedings which had been referred to the Tribunal under s 193 prior to the repeal of those provisions.
  5. [9]
    Clause 34 of Schedule 7 to The National Law provides:

“34 saving of operation of repealed law provisions

  1. (1)
    The repeal, amendment or expiry of a provision of this law does not –
  1. (a)
    Revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or
  2. (b)
    Affect the previous operation of the provision or anything suffered, done or begun under the provisions;
  3. (c)
    Affect a right, privilege or liability acquired, accrued or incurred under the revision; or
  4. (d)
    Affect a penalty incurred in relation to an offence arising under the revision; or
  5. (e)
    Affect an investigation, proceeding or remedy in relation to such a right, privilege, liability or penalty.
  1. (2)
    Any such penalty may be imposed and enforced, and any such investigation, proceeding or remedy may be begun, continued or enforced, as if the provision had not been repealed or amended or had not expired.”
  1. [10]
    Section 196 of The National Law was not repealed by the Health Ombudsman Act.  It provides:

“Decision by responsible tribunal about registered health practitioner

  1. (1)
    After hearing a matter about a registered health practitioner, a responsible tribunal may decide—
  1. (a)
    the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
  1. (b)
    one or more of the following—
  1. (i)
    the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
  1. (ii)
    the practitioner has behaved in a way that constitutes unprofessional conduct;
  1. (iii)
    the practitioner has behaved in a way that constitutes professional misconduct;
  1. (iv)
    the practitioner has an impairment;
  1. (v)
    the practitioner’s registration was improperly obtained because the practitioner or someone else gave the National Board that registered the practitioner information or a document that was false or misleading in a material particular.
  1. (2)
    If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following—
  1. (a)
    caution or reprimand the practitioner;
  1. (b)
    impose a condition on the practitioner’s registration, including, for example—
  1. (i)
    a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
  1. (ii)
    a condition requiring the practitioner to undertake a specified period of supervised practice; or
  1. (iii)
    a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or
  1. (iv)
    a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or
  1. (v)
    a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or
  1. (vi)
    a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons,
  1. (c)
    require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
  1. (d)
    suspend the practitioner’s registration for a specified period;
  1. (e)
    cancel the practitioner’s registration.
  1. (3)
    If the responsible tribunal decides to impose a condition on the practitioner’s registration, the tribunal must also decide a review period for the condition.
  1. (4)
    If the tribunal decides to cancel a person’s registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to—
  1. (a)
    disqualify the person from applying for registration as a registered health practitioner for a specified period; or
  1. (b)
    prohibit the person, either permanently or for a stated period, from—
  1. (i)
    providing any health service or a specified health service; or
  1. (ii)
    using any title or a specified title.”
  1. [11]
    The applicant Board submits that although s 195 was part of the legislative scheme at the time at which the proceeding was commenced, “arguably nothing was suffered, done or begun under s 195 such that the operation of s 195 would continue for the purposes of these proceedings”.
  2. [12]
    The respondent submits that the argument that nothing was suffered, done or begun under s 195 is equally applicable to s 196.  She submits that s 196 “on its terms, is not invoked until after a hearing”.
  3. [13]
    The respondent submits that:

“There is nothing to distinguish sections 195 and 196 of The National Law in terms of their respective future potential application after resolution of proceedings already commenced when section 50 of the Health Ombudsman Act 2013 took effect.  Either the operation of both provisions are (sic) saved by virtue of section 34 of schedule 7, or neither provision is saved.  In discerning the intention of the legislature, all of the provisions repealed by section 50 of the Health Ombudsman Act 2013 should be considered together.”[5]

  1. [14]
    The respondent further submits that:

“A legislative intent that proceedings on foot as at 1 July 2014 pursuant to a referral under section 193 should continue under the previous statutory provisions is consistent with reading section 34(2) of schedule 7 of The National Law as applicable to save the operation of ss 195 and 196.

Having regard to the language of section 50 of the Health Ombudsman Act 2013, and the scope of the object of the whole statute, it could not have been intended by the legislature that a proceeding commenced by referral under section 193 of The National Law for 1 July 2014 could not have been concluded by the Tribunal having the power to make the orders referred to in ss 195 and 196.

It is therefore submitted that section 50 of the Health Ombudsman Act 2013 did not operate to deprive the Tribunal of the power to dispose of the proceedings in the ways set out in section 196 or make a costs order as provided by section 195.[6]”

  1. [15]
    In my view, these submissions of the respondent should be rejected.
  2. [16]
    There is nothing in the amending legislation which preserves the operation of s 195 in respect of proceedings referred to the Tribunal before the date of the repeal.  Clause 34(1)(b) of Schedule 7 to The National Law provides that the repeal or amendment of a provision of The National Law does not affect the previous operation of the provision.  Clause 34(1)(b) does not preserve s 195 for the purposes of this proceeding.  Nothing had been suffered, done or begun under s 195 at the time of its repeal.
  3. [17]
    Similarly, clause 34(1)(c) provides that the repeal or amendment of a provision does not affect a right or privilege accrued under the provision; but no right had accrued to either party under s 195 in this matter.  Section 195 is a procedural provision which conferred no substantive rights.  Certainly no rights were acquired or accrued by either party under it before its repeal.[7]
  4. [18]
    The applicant’s submissions which attempt to equate the operation of s 195 with that of s 196 are misconceived.  Unlike s 195, s 196 was not repealed.  It would continue to have operation to a proceeding which itself was preserved by operation of clause 34 of Schedule 7.  The relevant operation of clause 34 of Schedule 7 is upon the repealed s 193.  Clause 34 operates to preserve proceedings, such as these, commenced in the Tribunal pursuant to the former s 193, notwithstanding the subsequent repeal of that provision.  By operation of clause 34(1)(b) the repeal of s 193 does not affect its previous operation, or anything done or begun under it.  Clearly, the commencement of the present proceeding was something done or begun under the former section 193.  Because the proceeding begun under the former s 193 was not affected by its repeal, s 196, which continued to operate, remained applicable to that unaffected proceeding.
  5. [19]
    Section 195, which was repealed, stands in complete contrast to the unrepealed s 196.  Unless something which itself arose from the former operation of s 195 before its repeal was preserved, s 195 ceased being applicable to any proceeding commenced under the former s 193.  Nothing had arisen under s 195.  Nothing was preserved.  Nor was  the application of s 195 preserved in respect of this proceeding.
  6. [20]
    The relevant legislative provisions governing costs in these proceedings are ss 100 and 102 of the QCAT Act.

What Is The Appropriate Costs Order?

  1. [21]
    The respondent submits that the circumstances of this case compel a costs order in her favour in the interests of justice.  Before turning to the respondent’s submissions in that regard, it is convenient to set out the matters which the applicant Board identifies in support of its submission that each party should bear its own costs.
  2. [22]
    The Board identifies that, pursuant to s 193(2) of The National Law as in force at the relevant time, referral of the matter to the Tribunal was mandatory once it had formed a reasonable belief that the respondent had performed in a way that constituted professional misconduct.[8]  Having formed that belief, the Board had no discretion as to whether or not to refer the matter to the Tribunal.  It submits that it was entirely reasonable, on the evidence available to it, to form a belief that the respondent had behaved in a way that constituted professional misconduct. The Board points to there being no finding in the Tribunal’s reasons that the Board commenced the proceeding without reasonably holding that belief.
  3. [23]
    The Board refers to the respondent and Ms Smith having sworn affidavits which were at odds and that the resolution of such matters required a full hearing in the Tribunal in which issues of credibility could be considered.  The Board refers to the respondent’s evidence having been preferred to that of Ms Smith, but only after Ms Smith’s oral evidence, including cross-examination, and after considering the evidence of others, particularly Dr Cohen, Dr Vohra and Ms O'Brien.
  4. [24]
    The Board submits that the primary objective of The National Law, which is to provide protection for the public, will be taken into account by the Tribunal as a matter relevant to deciding whether to award costs to the respondent “in the interests of justice”.[9]  It refers to what it describes as a line of authority which it submits is to the effect that “absent of finding of bad faith, or lack of reasonable belief that the referred conduct constituted professional misconduct, on the part of the regulator, the regulator should not be exposed to, or burdened with, an adverse costs order merely because it was unsuccessful in disciplinary proceedings properly brought”.  It refers to the judgment of McMurdo JA, with whom the other two members of the court agreed, in the Queensland Court of Appeal in Medical Board of Australia v Wong[10] as being the last in that line of authority. 
  5. [25]
    Whilst Wong did concern ss 100 and 102 of the QCAT Act, it is the only case in what the Board describes as a line of authorities which did.  The other cases referred to by the Board were decided under different legislation with different prescriptions as to the relevant tribunal’s powers to award costs.  Care must be exercised to ensure that jurisprudence which is developed in the context of a particular legislative framework not be indiscriminately applied in the context of a different legislative framework. 
  6. [26]
    For example, the observations of O'Brien DCJ in Medical Board of Queensland v Heiner[11], to which the board refers in it submissions, were made in the context of the Queensland Health Practioner’s Tribunal’s cost powers being governed by s 255 of the Health Practioner’s (Professional Standards) Act 1999.  Section 255(1) provided:

“The Tribunal may make any order about costs it considers appropriate for disciplinary proceedings”.

  1. [27]
    Therefore, the Tribunal was conferred a broad discretion to be exercised judicially.
  2. [28]
    Similarly, in Baxendle-Walker v Law Society[12], also referred to in the Board’s submissions, costs were governed by s 47(2) of The Solicitors Act 1974 (UK) which provided:

“On the hearing of any application or complaint made to the Tribunal under this Act… the Tribunal shall have the power to make such order as it may think fit and any such order may in particular include provision for any of the following matters… (i) the payment by any party of costs or a contribution towards costs of such amount as the Tribunal may consider reasonable.”

  1. [29]
    Matters identified as relevant to the exercise of a particular costs power may also be relevant to the exercise of a different costs power; but the extent to which they are will depend upon on the text of the other provision read in its context.
  2. [30]
    This cautionary note is also relevant to the submissions made on behalf of the respondent.  In her submissions reference is made  to the observations of Keane JA (as his Honour then was) in Tamawood Ltd & Anor v Paans[13] that:

“In the absence of countervailing considerations, where a party has reasonably incurred the costs of legal representation, and has been unsuccessful 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.”

  1. [31]
    The relevant cost provisions in that case were ss 70 and 71 of the Commercial and Consumer Tribunal Act 2003.
  2. [32]
    The President of QCAT, Alan Wilson J, considered those observations of Keane JA in respect of ss 70 and 71 of the Commercial and Consumer Tribunal Act in comparison to ss 100 and 102 of the QCAT Act in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) in these terms:

“The similar QCAT Act provision to s 70 is, it might be said, in terms that more plainly indicate that the legislature had turned its face against awards of costs in this tribunal: s 70 says that ‘other than as provided under this Act or an enabling Act, each party to a proceeding must bear that party’s own costs for the proceeding’.

In considering ss 70 and 71 Keane JA (as his Honour then was) referred, however, to two matters relevant here.  First, his Honour held that the CCT provisions negated the traditional proposition that costs should prima facie follow the event (unless of course that the tribunal considers that another order is more appropriate) and that the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute which created and prescribed the occasions and conditions for its exercise.  Sections 100 and 102 of the QCAT Act attract the operation of the same principles.

Second, Keane JA was of the view that where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve the satisfactory outcome.

That 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.  Section 70 speaks of a ‘main purpose’, but s 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, a reference to the condition or circumstance in which the main purpose may be subsumed to the interest of justice; s 100 has no such proviso, although it appears later, in s 102(1).

Under that subsection QCAT has a discretion to make a costs order ‘…if the tribunal considers the interest of justice require it…’.  Section 102(3) says that, in deciding whether to award costs, the tribunal may have regard to matters not dissimilar to those set out in s 71 of the CCT Act including, in particular for present purposes, the nature and complexity of the dispute and the relative strength of each parties claims.

Under the QCAT Act the question that will usually arise in each case in which costs are sought is 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 contraindication against costs orders in s 100.”[14]

  1. [33]
    The complexity of the proceeding, to use the language of s 71(4)(c) of the CCT Act, and the complexity of the dispute, to use the language of s 102(3)(b) of the QCAT Act, was a feature in both Tamawood and Ralacom which led each of Keane JA and Wilson P, respectively, to exercise the power to award costs.  Each of s 71(4)(c) and s 102(3)(b) refers to the nature of the proceeding or dispute as well as to its complexity.  In my view, that is an important consideration when the tribunal is called upon to consider costs in the context of disciplinary proceedings brought pursuant to s 193 of The National Law.
  2. [34]
    In Wong, McMurdo JA said at [37]:

“Absent a finding, which this Court was not asked to make, that the Board’s characterisation of Dr Wong’s conduct as professional misconduct was unreasonable, there can be no proper criticism of the Board for bringing and prosecuting this proceeding as it did. No finding was sought here that the Board acted in bad faith. It must be kept in mind that the Board has a statutory responsibility for the protection of the public in this context and the fact that the outcome was not that which was sought should not of itself burden the Board with an order for costs, especially in a proceeding in QCAT where the starting position is that prescribed by s 100.” (emphasis added).

  1. [35]
    Earlier, at [32], his Honour had observed:

“Her Honour made no finding as to whether the Board, when referring the matter to QCAT, held a reasonable belief that Dr Wong’s sexual misconduct had constituted professional misconduct.  And as already noted, there had been no finding about that matter by Horneman-Wren SC DCJ.  Absent a finding that the Board had commenced the proceeding without such a belief, there could be no criticism of the Board’s doing so.  Moreover if the Board held that reasonable belief, it was bound to bring the proceeding which it did.  In my respectful opinion, her Honour erred in law by not recognising the importance of that mandatory nature of the then s 193 to the question of whether this proceeding had been properly brought.” (emphasis added).

  1. [36]
    In my view, the mandatory nature of such proceedings falls squarely for consideration under s 102(3)(b) of the QCAT Act; not merely as some further matter that the tribunal may consider relevant under s 102(3)(f) as submitted for the Board.  When it is recognised that, having reasonably formed a belief that a practitioner may have behaved in a way that amounts to professional misconduct, the Board was obliged to refer the matter to QCAT, this weighs quite heavily against an order for costs being made against the Board.  Disciplinary proceedings brought because legislation intended to protect the public requires them to be brought are of a very different nature to a dispute between a consumer and a builder for damages for loss suffered by reason of the builder’s default in the construction of a house, as was the case in Tamawood. 
  2. [37]
    The applicant seeks to distinguish Wong on two bases.  First, that it does not appear to have considered Latoudis v Casey[15] and, secondly, that Wong was a case where the outcome as to sanction was not “that which was sought” by the Board, whereas this is a case in which “the tribunal found that she was not guilty of any disciplinary infraction requiring sanction”.
  3. [38]
    It is convenient to deal with the second basis first.  The distinction sought to be made seems to be that in Wong the Board has sought to have the practitioner’s registrations suspended or cancelled.  It had failed in that regard, but conditions were imposed upon his registration.  It was not a case in which the practitioner was wholly successful.
  4. [39]
    In my view, that submission seeks to apply the reasoning in Wong too narrowly.  In saying that “the fact that the outcome was not that which was sought should not itself burden the Board with an order for costs”, McMurdo JA was not, in my view, confining his reasons to cases in which there is some disciplinary outcome against the practitioner, albeit a different disciplinary outcome to that sought by the Board.  In my view, this is clear from his Honour’s reference to the starting positon being that prescribed by s 100.  In the context of s 100 being the starting positon, his Honour’s description of an outcome which is not that which was sought would also be apt to describe a proceeding where no disciplinary outcome was achieved. 
  5. [40]
    In finding the Tribunal had erred in the exercise of its discretion in ordering costs, his Honour said at [35]:

“There was no respect in which the Board’s position was identified as unreasonable, in pressing for the conditions which it proposed. Absent any finding of unreasonableness, there could not have been a basis for departing from the default position, according to s 100, that each party bear its own costs.”

  1. [41]
    A Board may be unsuccessful in achieving a disciplinary sanction, but that does not mean that the Board will have acted unreasonably in pursuing a disciplinary sanction.  In a particular case a board may be found to have acted unreasonably in all the circumstances, but a lack of success will not usually, of itself, establish that.
  2. [42]
    The other basis upon which the Board seeks to distinguish Wong is that it does not appear that the court considered Latoudis v Casey.  This submission stems from a reference to Latoudis v Casey in the reasons of Carmody J in Alroe v Medical Board of Australia[16].   It is submitted for the respondent that in addition to the passage of the judgement of McHugh J at 567 recited by Carmody J[17], the following passage from the judgement of Mason CJ is apposite:

“It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant.  To do so conforms to fundamental principles.  If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party.  They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has be put by reason of the legal proceedings: Cilli v Abbott.  Most of the arguments which seek to counter an award of costs against an informant fail to recognise this principle and treat an order for costs against an informant as if it amounted to the imposition of the penalty or punishment.  These arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor.  Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution then the dismissal of the proceeding.”[18]

  1. [43]
    The respondent submits that on the basis of that passage “the tribunal should have primary regard…to look at the matter from the perspective of the practitioner who has been put to the cost of defending herself against serious charges”.
  2. [44]
    In my view, were the tribunal to approach the issue of costs under ss 100 and 102 of the QCAT Act in the matter contended for by the respondent; it would commit error.
  3. [45]
    Latoudis v Casey concerned s 97(b) of the Magistrates (Summary Proceedings) Act 1975 (Vic).  At the time there were analogous provisions in legislation in other States.  The provision authorised the court, when it dismissed information or a complaint, to order the informant or complainant to pay to the defendant such costs as the court thought just and reasonable.  Such a power to award costs is in starkly different terms to ss 100 and 102 of the QCAT Act.
  4. [46]
    Immediately preceding the passage cited by the respondent, Mason CJ had said:

“In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her on an order for costs.  To burden the successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought.  It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs.”[19]

  1. [47]
    That passage makes clear that “in ordinary circumstances” costs would be awarded to a successful defendant.  What followed in the passage cited in the respondent’s submissions must be read in that context.  A subsequent passage in the Chief Justice’s judgement reiterates that.  His Honour said:

“Nevertheless, I am persuaded that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant.  However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant’s costs.  If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor.”[20] (emphasis added). 

  1. [48]
    The same point was made by Toohey J who was also in the plurality.  His Honour said:

“If a prosecution has failed, it would ordinarily be just and reasonable to award the defendant costs, because the defendant has incurred expense, perhaps very considerable expense in defending the charge. …

It is unnecessary to speak in terms of a presumption: it is enough to say that ordinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket.”[21] (emphasis added).     

  1. [49]
    So too, McHugh J, who was the third judge comprising the plurality, commenced his reasons by saying:

“The issue in this appeal is whether in summary criminal proceedings the successful defendant should ordinarily be awarded his or her costs.

The detailed discussion of the facts, relevant to the statutory provisions and authorities in the judgment of Dawson J enables me to proceed directly to my reasons for concluding that a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for costs against the informant and that the discretion to refuse to make the order should not be exercised against him or her except for a reason directly connected with the charge or the conduct of the proceeding.”[22] (emphasis added). 

  1. [50]
    To approach s 102 of the QCAT Act on the basis that “in ordinary circumstances” or “ordinarily” a practitioner who successfully resists disciplinary proceedings bought by a board should have his or her costs because it would be just and reasonable, or that he or she would have “a reasonable expectation” of such an award, would be to fail to recognise the primary position established under s 100 that parties bear their own costs. 
  2. [51]
    When so understood, it is entirely understandable why Latoudis v Casey was not considered by the Court of Appeal in Wong: it was irrelevant to the court’s consideration.
  3. [52]
    In my view, the circumstances in this case do not, in the interests of justice, point so compellingly to a costs order such that they overcome the strong contra-indication against costs orders which s 100 establishes as the default position.  As I have said, Wong establishes that the mandatory nature of the proceedings weighs against an order of costs against the Board. 
  4. [53]
    I do not consider that the Board acted unreasonably in bringing or continuing the proceeding.  Factual findings were required before a determination could be made as to whether the Board had established its case.  These required a full hearing.
  5. [54]
    The matters identified on the respondent’s behalf in the written submissions[23] do not persuade me that the interests of justice require an order of costs to be made.

Disposition

  1. [55]
    The order of the tribunal will be that each party must bear its own costs.

Footnotes

[1] Nursing and Midwifery Board of Australia v Bates [2017] QCAT 479.

[2] 21 January 2013.

[3] Section 6(2)(a) QCAT Act.

[4] Health Ombudsman Act 2013, s 326; 213 SL211.  The respondent incorrectly identifies the amendments as having been made by s 50 of the Health Ombudsman Act.  By s 326 of the Health Ombudsman Act a new Part Four of The National Law Act was inserted setting out modifications of The National Law provisions.  The relevant modifications to The National Law, including the repeal of s 195, were effected by amending s 50 of The National Law Act to provide accordingly.

[5] Further submissions on behalf of the respondent’s costs dated 22 August 2017; paragraphs 12 – 14.

[6] Ibid at paragraphs 16 – 18.

[7] Compare Maxwell v Murphy (1957) 96 CLR 261268; Rodway v The Queen (1999) 169 CLR 515 at 518 – 520; Esber v The Commonwealth (1992) 174 CLR 430 at 440; Attorney General (Queensland) v The Australian Industrial Relations Commission (2002) 213 CLR 485 at 502 [40].

[8] See also section 14(2) of The National Law as to the meaning to be given to the word “must”.

[9] Section 102(3)(f) QCAT Act.

[10] [2017] QCA 42.

[11] [2008] QHPT 001.

[12] [2007] 3 All ER 300.

[13] [2005] QCA 111 at [24] to [30].

[14] [2010] QCAT 412 at 24, 25.

[15] (1990) 170 CLR 534.

[16] [2016] QCAT 440.

[17] Ibid at [17].

[18] Latoudis v Casey (1990) 170 CLR 534 at 542.

[19] Ibid.

[20] Ibid at 544.

[21] Ibid at 565.

[22] Ibid at 566.

[23] Particular para. 24 of the submissions filed on 29 June 2017 and restated at para. 36 of the Further Submissions dated 22 August 2017.

Close

Editorial Notes

  • Published Case Name:

    Nursing and Midwifery Board of Australia v Stephanie Patricia Bates (No 2)

  • Shortened Case Name:

    Nursing and Midwifery Board of Australia v Bates (No 2)

  • MNC:

    [2018] QCAT 102

  • Court:

    QCAT

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    30 Apr 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alroe v Medical Board of Australia [2016] QCAT 440
3 citations
Jump To
Cite 1 - [2016] QCAT 440
Cite 2 - [2016] QCAT 440
Cite 3 - [2016] QCAT 440
Attorney-General for the State of Queensland v Australian Industrial Relations Commission and Ors (2002) 213 CLR 485
2 citations
Jump To
Cite 1 - (2002) 213 CLR 485
Cite 2 - (2002) 213 CLR 485
Baxendle-Walker v Law Society [2007] 3 All ER 300
2 citations
Jump To
Cite 1 - [2007] 3 All ER 300
Cite 2 - [2007] 3 All ER 300
Esber v The Commonwealth (1992) 174 CLR 430
2 citations
Jump To
Cite 1 - (1992) 174 CLR 430
Cite 2 - (1992) 174 CLR 430
Latoudis v Casey (1990) 170 CLR 534
6 citations
Jump To
Cite 1 - (1990) 170 CLR 534
Cite 2 - (1990) 170 CLR 534
Cite 3 - (1990) 170 CLR 534
Cite 4 - (1990) 170 CLR 534
Cite 5 - (1990) 170 CLR 534
Cite 6 - (1990) 170 CLR 534
Maxwell v Murphy (1957) 96 CLR 261
2 citations
Jump To
Cite 1 - (1957) 96 CLR 261
Cite 2 - (1957) 96 CLR 261
Medical Board of Australia v Wong [2017] QCA 42
2 citations
Jump To
Cite 1 - [2017] QCA 42
Cite 2 - [2017] QCA 42
Medical Board of Queensland v Heiner [2008] QHPT 1
2 citations
Jump To
Cite 1 - [2008] QHPT 1
Cite 2 - [2008] QHPT 1
Nursing and Midwifery Board of Australia v Bates [2017] QCAT 479
2 citations
Jump To
Cite 1 - [2017] QCAT 479
Cite 2 - [2017] QCAT 479
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
2 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Rodway v The Queen (1999) 169 CLR 515
2 citations
Jump To
Cite 1 - (1999) 169 CLR 515
Cite 2 - (1999) 169 CLR 515
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
2 citations
Jump To
Cite 1 - [2005] QCA 111
Cite 2 - [2005] QCA 111

Cases Citing

Case NameFull CitationFrequency
Peters v Medical Board of Australia (No 2) [2020] QCAT 2221 citation
1

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