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  4. Broadbent v Medical Board of Australia - [2018] QCAT 25

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Broadbent v Medical Board of Australia[2018] QCAT 25

Broadbent v Medical Board of Australia[2018] QCAT 25

CITATION:

Broadbent v Medical Board of Australia [2018] QCAT 25

PARTIES:

MICHAEL RUSSELL MARK BROADBENT

(Applicant)

v

MEDICAL BOARD OF AUSTRALIA

(Respondent)

APPLICATION NUMBER:

 

MATTER TYPE:

Occupational Regulation Matters

HEARING DATE:

10 March 2015

HEARD AT:

Brisbane 

DECISION OF:

His Honour Judge Alexander Horneman-Wren SC, DCJ

ASSISTED BY:

Dr Michael Humphrey

Dr David Evans

Mr Kai Dahl

DELIVERED ON:

16 February 2018

DELIVERED AT:

Brisbane 

ORDERS MADE:

  1. The appeal is struck out
  1. The parties are to file any submissions which they wish to make on the issue of costs within 14 days of the publication of these reasons to the parties. Such submissions to be limited to 4 pages.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENSES AND REGISTRATION – APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION – where grounds for disciplinary action established against applicant by earlier tribunal – where applicant required by earlier tribunal to give an undertaking pursuant to s 241 of the Health Practitioners (Professional Standards) Act 1999 – where undertaking given – where application for reregistration is brought in contravention of undertaking – where application refused by medical board – whether appeal of medical board decision to be struck out as vexatious – whether appeal amounts to an abuse of process

APPEARANCES and REPRESENTATION:

 

APPLICANT:

Mr J Carlyle (instructed by Hawkes Lawyers)

RESPONDENT:

Ms C T Houston (Solicitor) of Moray and Agnew Solicitors

  1. [1]
    Michael Russell Mark Broadbent, by decision of the Medical Board of Australia made on 10 June 2014, was refused registration as a medical practitioner. He has appealed to the Tribunal, pursuant to s 199(1)(a) of the Health Practitioner Regulation National Law (Queensland) (the National Law) against that decision.  Pursuant to s 9 of the Health Practitioner Regulation National Law Act 2009 (Qld) (the National Law Act) the appeal is to proceed as a review of the decision as provided under the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
  1. [2]
    The Medical Board of Australia has applied to have Mr Broadbent’s appeal struck out pursuant to s 47 of the QCAT Act on the basis that it is vexatious or an abuse of process. 
  1. [3]
    Matters concerning Mr Broadbent’s registration as a medical practitioner have a long history. For the reasons which follow, his appeal, considered in the context of that long history, should be struck out. It is both vexatious and an abuse of the Tribunal’s processes. To explain why this is so it will be necessary to set out much of that historical context.

Mr Broadbent’s former registration

  1. [4]
    Mr Broadbent, who was born on 20 January 1943, was first registered as a medical practitioner in New Zealand in 1969. He held general registration[1] until 1984 when he obtained specialist registration as a surgeon.  For a short period between November 1984 and March 1985 he practised as a locum general surgeon consultant in Saudi Arabia.  In 1985 he became registered as a surgeon in Queensland and New South Wales.
  1. [5]
    In 2008, Mr Broadbent entered retirement, ceased to practise and surrendered his specialist registration.

Disciplinary proceedings are brought against Mr Broadbent

  1. [6]
    In 2007 and 2008 the then Medical Board of Queensland[2] commenced disciplinary proceedings in the then Queensland Health Practitioners Tribunal against Mr Broadbent in relation to 13 of his former patients.  Those proceedings were brought pursuant to the Health Practitioners (Professional Standards) Act.[3]  The ground for disciplinary proceedings alleged was that Mr Broadbent had behaved in a way that constituted unsatisfactory professional conduct.[4]  “Unsatisfactory professional conduct” was defined in the schedule to the Professional Standards Act to include: professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant’s professional peers; professional conduct that demonstrates incompetence or lack of adequate knowledge, skill or care in practice of the registrant’s profession; and providing a person with health services of a kind that are excessive, unnecessary and not reasonably required for the patient’s wellbeing.  These were the bases for the allegation of unsatisfactory professional conduct brought against Mr Broadbent.[5] 
  1. [7]
    Various reviews of the matters were conducted in 2007, 2008 and 2009. On 18 June 2009 the Health Practitioners Tribunal constituted by Chief Judge Wolfe ordered the matters relating to patients MacLeod and Pearce proceed first in a hearing before the Tribunal constituted by Judge Wall QC commencing on 7 September 2009.
  1. [8]
    On 7 September 2009, being the date fixed for the commencement of the hearing of the MacLeod and Pearce matters in the Health Practitioners Tribunal, an application was made by counsel then appearing for Mr Broadbent for a permanent stay of the disciplinary proceeding on the basis that its continued prosecution by the Board was unnecessary, an abuse of process and contrary to the purposes of s 123 of the Professional Standard Act.[6]  The decision of the Tribunal refusing the application for a stay recites the following as the basis upon which it was made:

“HIS HONOUR: Mr Hackett relies upon an undertaking which Dr Broadbent is prepared to offer that he not ever again seek registration as a medical practitioner in Queensland and Mr Hackett, I think, said that Dr Broadbent was prepared to give a similar undertaking in respect of other jurisdictions.  Is that so?

MR HACKETT: Yes, Your Honour.

HIS HONOUR: He also relies upon the limited financial resources of Dr Broadbent and the facts that the surgical procedure involved in relation to each of these patients was of an unusual and particular type which was carried out by only two doctors in Queensland, one of those being Dr Broadbent.

 It is submitted that since 1999 this particular procedure was only conducted in Queensland by Dr Broadbent and another doctor.  Both doctors now no longer practice in Queensland.  Dr Broadbent has ceased practice and retired from practice on 7 September 2008.  The other doctor practices in the United States of America.  It is also submitted that since 2005 the procedure has not been conducted in Queensland as a primary procedure, but only as a secondary procedure for failed lap band surgery.”

  1. [9]
    The Board opposed the stay application. His Honour concluded his reasons as follows:

“I agree with Ms McMillan SC who appears for the Board that very serious matters relating to numerous aspects of medical practice and patient care and management are involved in these charges and that the allegations levelled by the Board against Dr Broadbent are not limited to the particular surgical procedures carried out by him.

In my view, the objects of the Act require that these broader issues, as well as the particular surgical procedures, be considered and be considered in a public way by evidence before this Tribunal.  For these reasons, the application to permanently stay or dismiss the proceedings is dismissed.”

  1. [10]
    In the course of the hearing of the matter presently before the Tribunal this earlier offer by Mr Broadbent to secure a stay of the disciplinary proceedings was raised by the Tribunal with his counsel, Mr Carlyle, who was not counsel in the earlier matter when the undertaking had been offered. Mr Carlyle’s response was that he had no knowledge of that offer of an undertaking.[7]  That response, of itself, was rather extraordinary given that the decision of the Tribunal which is in the form of an ex-tempore judgment given on transcript and which includes the clear statement of Mr Hackett of counsel that Mr Broadbent was prepared to offer such undertakings was exhibited to Ms Houston’s affidavit filed in the current proceedings.  Mr Carlyle, on the instructions of Mr Broadbent, said in respect of that offer of undertakings:

“Again, Dr Broadbent was not present in court, and he maintains that that was not his instructions”.

  1. [11]
    Those instructions, given to Mr Carlyle in the course of the hearing, are also extraordinary given that Ms Houston had deposed to those matters in her affidavit and had exhibited the decision and Mr Broadbent had subsequently filed an affidavit which ran to some 112 paragraphs over 79 pages in which he said nothing which would cast doubt upon his having, through his counsel, offered that earlier undertaking. Those instructions to Mr Carlyle are, however, consistent with Mr Broadbent alleging, in this application, that different counsel on a separate occasion when the Tribunal was determining what, if any, disciplinary action to take against Mr Broadbent, it having found that grounds for disciplinary action had been established, offered undertakings without his consent, instructions or authority to do so. Those are matters to which I shall return later in these reasons.

The Tribunal’s findings

  1. [12]
    Upon the commencement of Chapter 7, Part 6 of the QCAT Act on 1 December 2009, the disciplinary proceedings continued in the Queensland Civil and Administrative Tribunal.  QCAT, constituted by Judge Wall QC who was assisted by three assessors, delivered its decision on 10 June 2010.
  1. [13]
    The Tribunal found some, but not all, of the allegations made against Mr Broadbent in the referral to be established. The Tribunal concluded in relation to each of the patients that in respect of those allegations which it found to be established, it was satisfied that Mr Broadbent had behaved in a way that constituted unsatisfactory professional conduct.[8]  In respect of the patient MacLeod, by engaging in professional conduct that was of a lower standard than that which might reasonably be expected of him by the public or his professional peers, and a demonstrated lack of adequate knowledge, skill, judgment or care, in the practice of his profession.[9]  In respect of the patient Pearce, the Tribunal also was satisfied that Mr Broadbent had engaged in conduct that involved the provision of health services, being a gastroscopy, of a kind that was excessive, unnecessary or not reasonably required for the patient’s well-being.[10]

The Tribunal’s final decision and Mr Broadbent’s undertakings

  1. [14]
    The Tribunal’s final decision was given on 2 September 2010 after a further hearing as to appropriate disciplinary application to be taken against Mr Broadbent, it having by its reasons of 10 June 2010 decided that a ground for disciplinary action had been established against him.[11]  The Tribunal’s decision was as follows:

“The registrant having, pursuant to s 241(2)(d) of the Health Practitioners (Professional Standards) Act 1999, given an undertaking to the Tribunal in the following terms:-

“I Michael Russell Mark Broadbent, undertake that, the Tribunal having found that grounds for disciplinary action are established in the respects referred to by the Tribunal in its judgment delivered on 10 June 2010

  1. (i)
    I will retire permanently from medical practice;
  1. (ii)
    I will never re-apply to the National Board for the health profession for registration in Australia as [sic] practising medical practitioner;
  1. (iii)
    I will not seek to be relieved on this undertaking.”

Details of the undertaking be recorded in the Board’s register for the period for which the undertaking is in force pursuant to s 242(1)(b) of the Health Practitioners (Professional Standards) Act 1999.”

  1. [15]
    As the decision itself records, it was formally made pursuant to s 242(1)(b) of the Professional Standards Act.  Section 242(1)(b) required the Tribunal, in making its decision under s 241(2), to decide whether details of an undertaking which it had required Mr Broadbent to give to the Tribunal must be recorded in the Board’s register for the period for which the undertaking is in force.  The Tribunal’s decision was that it must be so recorded.
  1. [16]
    As that final decision also records, Mr Broadbent had given an undertaking to the Tribunal in the terms recorded in the decision. The Tribunal was authorised to require Mr Broadbent to give it such an undertaking by s 241(2)(d) of the Professional Standards Act.  Section 241 applies if, under s 240(1), the Tribunal decides a ground for disciplinary action is established against a registrant who is registered at the time of the decision.[12]  Section 241(2) requires the Tribunal to do one or more of the things set out in the sub-paragraphs of that sub-section; those things include requiring the registrant to give the Tribunal an undertaking. 
  1. [17]
    Whilst the Tribunal’s final decision records the decision made under s 242(1)(b), it also reflects the decision made under s 241(2)(d). That decision to require Mr Broadbent to give an undertaking was itself a decision of a kind required to be made by the Tribunal under s 241. That it was such a decision made by the Tribunal is an important consideration in determining this application. Its significance as such, for reasons which I shall develop later, does not appear to be understood by Mr Broadbent.
  1. [18]
    The decision as signed by Judge Wall QC as the presiding member of the Tribunal formalised the decisions made in the course of the hearing on disciplinary action conducted by the Tribunal on 2 September 2010. What was said by the Tribunal on that occasion was published in the form of an order. It is attached to the application for miscellaneous matters filed by the Board in these proceedings on 23 October 2014. Because Mr Broadbent now asserts that the undertaking which was given by him through his counsel was given without his consent or authority, indeed it is put as high by Mr Carlyle as not having been given at all,[13] what was recorded in the transcript and published as an order on that occasion should be set out in full.  It is as follows:

“HIS HONOUR: We have considered this matter and on the basis that the primary function of these proceedings, the registrant having been found liable in the respects referred to in the judgment, is to protect the public interest.  It is our view that the matter of penalty could be satisfactorily resolved by requiring the registrant under s 241 sub-section 2 of the Health Practitioners (Professional Standards) Act to give an undertaking in the form in which I will hand to the parties and that there will also be an order under s 242(1)(b) as to the recording of that undertaking.

 We consider that an undertaking in those terms will have a practical effect on the registrant far greater than suspension for a period of five years.  Now, it is up to you, Mr Diehm, to make the necessary enquiries as to whether Dr Broadbent is prepared to give the undertaking which we require him to give.

MR DIEHM: Yes, Your Honour, and I’ll have those enquiries made.  In Your Honour’s hands, of course, as to whether we proceed with the costs submissions while that’s being done.

HIS HONOUR: Well, I think we can.

MR DIEHM: Thank you, Your Honour.

HIS HONOUR: I will for the sake of the public indicate what the terms of the undertaking are that the Tribunal requires Dr Broadbent to give.  It is in these terms:

 “I, Michael Russell Mark Broadbent undertake that, the Tribunal having found that grounds for disciplinary action are established in respects referred to by the Tribunal in its judgment delivered on 10 June 2010:

  1. (i)
    I will retire permanently from medical practice;
  1. (ii)
    I will never re-apply to the national board for the health profession for registration in Australia as a practising medical practitioner; and
  1. (iii)
    I will not seek to be relieved of this undertaking.”

 That is the undertaking which we would require him to give and, as I said, if he is prepared to give that undertaking details of it will be recorded in the Board’s register and I will make a formal order to that effect once he gives the undertaking, if he does.

 …

MR DIEHM: Your Honour, and members of the Tribunal, if we may indicate before proceeding to our costs submissions, that the registrant’s instructions are to give that undertaking.

HIS HONOUR: Alright.  Well, alright.  Well, I’ll just make a formal order. 

MR DIEHM: Thank you.

HIS HONOUR: Under s 241(2)(d) of the Health Practitioners (Professional Standards) Act the Tribunal requires an undertaking from Michael Russell Mark Broadbent in the following terms:

 “I, Michael Russell Mark Broadbent, undertaking that, the Tribunal having found that grounds for disciplinary action are established in the respects referred to by the Tribunal in its judgment delivered on 10 June 2010:

  1. (i)
    I will retire permanently from medical practice;
  1. (ii)
    I will never re-apply to the national board for the health profession for registration in Australia as a practising medical practitioner;
  1. (iii)
    I will not seek to be relieved of this undertaking.”

The registrant, having given that undertaking, I order under s 242(1)(b) of the Health Practitioners (Professional Standards) Act , that details of this undertaking be recorded in the Board’s register for the period for which the undertaking is in force.”

Mr Broadbent seeks leave to appeal

  1. [19]
    Section 149(2) of the QCAT Act confers a right of appeal to the Court of Appeal from the decision of the Tribunal when constituted by a judge.  If the appeal is on a question of fact or a question of mixed fact and law, leave of the Court of Appeal is required.[14]
  1. [20]
    On 7 July 2010 Mr Broadbent filed an application for leave to appeal.
  1. [21]
    When the application for leave to appeal came to be heard there was a preliminary issue. The Board sought a stay of the application for leave on the basis that Mr Broadbent had agreed to compromise his proposed appeal and the terms of the agreement required him to discontinue his application for leave to appeal.[15]  Mr Broadbent denied the proposed compromise.
  1. [22]
    The evidence on the issue of compromise was contained in affidavits of Mr Broadbent and of the solicitor for the Board. Mr Broadbent had, at the time, been represented by a firm of solicitors with whom his son was an employed solicitor. Mr Broadbent Jr had the day to day carriage of the matter.
  1. [23]
    On 21 September 2010 counsel who was representing Mr Broadbent in the appeal informed him that in order to settle those proceedings a formal offer to do so would be needed from him. Mr Broadbent had deposed that after he “was again under pressure to make an offer”, he “eventually and reluctantly agreed to put the offer”.[16]  The offer was made by his counsel to the Board’s counsel on 22 September 2010.  The offer was in a number of parts.  Mr Broadbent’s appeal in the Court of Appeal would be dismissed by consent with no order as to costs.  On his undertaking already given to QCAT (that being that he would retire permanently from medical practice; never re-apply for registration as a practising medical practitioner; and that he would not seek to be relieved of the undertaking) all remaining referral notices before the Tribunal would be permanently stayed.
  1. [24]
    Finally, the parties would abide by the costs order of QCAT in respect of the Pearce and MacLeod matters upon which the tribunal was then reserved. It is to be noted that offer of compromise with its reference to the undertaking given by Mr Broadbent was made within three weeks of that undertaking having been given. This is a fact which strongly suggests that it had been given on his instructions, contrary to Mr Broadbent’s assertion now that it was not.
  1. [25]
    Clarification was sought by the Board’s counsel as to what would occur in respect to the stay of the further proceedings in QCAT in the event that Mr Broadbent did seek to be relieved of his undertaking or seek review of it. Mr Broadbent’s counsel replied that the intention was that the stay of those proceedings was premised upon the undertaking, so that if Mr Broadbent resiled from his undertaking the Board could apply to have the stay lifted from those proceedings.[17]  This also occurred on 22 September 2010.
  1. [26]
    On 5 October 2010 Mr Broadbent’s counsel inquired of the Board’s counsel as to whether there had been any progress on the offer to settle.[18]
  1. [27]
    Mr Broadbent “deposed that once he agreed to put the offer he had ‘very serious and deep renewed soul searching’ about the matter”.[19]  An email exchange then ensued between Mr Broadbent and his son, his solicitor, in which Mr Broadbent enquired about what was required to be done in pursuing his appeal.[20]  It was explained to Mr Broadbent by his son that the only offer which was “on the table” was his and “if you are saying you no longer wish to make that offer, you better withdraw it”.  The email also asked whether Mr Broadbent’s instructions were to withdraw his offer.[21]  This occurred on 6 October 2010.
  1. [28]
    Later on 6 October 2010 Mr Broadbent sent a further email to his son setting out how he proposed to approach the appeal. He also referred to his “further hope” that as an alternative to the appeal the Board would consider an independent review of the evidence and raised the possibility of proceedings in the Federal Court.[22]
  1. [29]
    On 7 October 2010 Mr Broadbent Jr emailed his father stating that he would not be in the office the following day. He also sought clear instructions as to whether Mr Broadbent was withdrawing his offer and wanting to press on with the appeal.
  1. [30]
    On 8 October 2010 Mr Broadbent emailed his son informing him that he was withdrawing his instructions in regard to negotiations with the Board and that he was pressing on with his appeal.[23] 
  1. [31]
    Later on 8 October 2010 there was an email exchange between Mr Broadbent Jr and Mr Broadbent’s counsel in which the offer was referred to. Counsel spoke of the potential to get a response on the following Monday upon the return of the Board’s counsel. [24]  In the event, there was no notification of the withdrawal of Mr Broadbent’s offer.  At 9.03am on Monday 11 October 2010 it was accepted by the Board’s counsel[25].
  1. [32]
    The Court of Appeal (Fraser JA, Chesterman JA and McMurdo J agreeing) held that upon a contractual analysis the compromise was a valid agreement binding on Mr Broadbent.[26] The court rejected Mr Broadbent’s argument that a contractual analysis was inappropriate.[27]
  1. [33]
    The court found, however, that it was “nevertheless clear that the compromise was made in defiance of [Mr Broadbent’s] instructions”, and that “applying the appropriately stringent tests, the facts of this case do justify the exercise of the courts power to decline to enforce the compromise”.[28] In doing so the court said:

“Although the applicant had retired from his profession, the decision against which he sought leave to appeal was of great importance to him, involving as it did conclusions that his conduct as a medical practitioner and surgeon fell short of the necessary professional standard of care.  The potentially serious consequential damage to his reputation could not effectively be remedied by leaving him free to pursue any damages claim he might have against his solicitors for failing to give effect to his instructions.”[29]

  1. [34]
    The court concluded that, taken together with the facts that the compromise was contrary to his emphatic instructions and that he had repudiated it within hours of it being concluded and virtually immediately upon his becoming aware that it bound him, that no injustice was suggested by the Board were it to lose the benefit of the compromise, and that both parties had been ready to argue the substantive application for leave to appeal on the day:

“These considerations demonstrate that [Mr Broadbent] will be the victim of a serious injustice if he is denied the opportunity of having his application for leave to appeal considered by this Court.”[30]

  1. [35]
    The Court of Appeal thus went on to hear Mr Broadbent’s application for leave to appeal. Having done so, the Court refused leave.
  1. [36]
    In its judgment (Chesterman JA; Fraser JA and McMurdo J agreeing) the Court observed that it was “important to emphasise that [Mr Broadbent] challenges the Tribunal’s findings of fact, or some of them” and that:

“The application properly proceeded on the basis that [Mr Broadbent] had to demonstrate substantial grounds for concluding that the Tribunal had mistaken facts relevant to its determination, that [Mr Broadbent] had behaved in a way that constituted unsatisfactory professional conduct in the treatment of two patients, Mrs MacLeod and Mrs Pearce.”[31]

  1. [37]
    The court considered that a reason for separating the hearing of the application for leave to appeal and the appeal itself, other than the statute providing for two steps, was that “when conducting disciplinary proceedings against a medical practitioner the Tribunal which makes the determination is a specialist one”.[32]
  1. [38]
    Chesterman JA observed that much of the Board’s case against Mr Broadbent in respect of Mrs MacLeod had not been made out to the satisfaction of the Tribunal.[33]
  1. [39]
    At [56] His Honour said:

“The Tribunal undertook a detailed and comprehensive analysis of the evidence before making its finding.  The evidence in support of or opposition to the particulars was rehearsed and the findings expressed in a way which makes the reasons for judgment self-contained.  The thoroughness of the exercise undertaken by the Tribunal presents a difficulty for the applicant.”

  1. [40]
    At [65] to [67] His Honour found:

“The findings indicate a careful consideration of the relevant materials and a rational acceptance of evidence.  The applicant, if he were to obtain leave to appeal, had to show that the conclusions of fact could not reasonably be made, either because there was no evidence to support its findings or that the evidence it accepted was outweighed by evidence to the contrary effect.  The applicant did not attempt such investigation or analysis.  His address to the court consisted of generalised criticisms of the findings, including those which the Tribunal made in his favour.  He did not identify any particular fact or finding of fact which he claimed was wrong, nor did he attempt the task of analysing findings by reference to evidence relevant to it to demonstrate why the Tribunal might have been in error.  Instead he repeated to the court the opinions and evidence he had urged on the Tribunal.

The court repeatedly drew the applicant’s attention to the task he had to essay if he were to persuade it to grant leave to appeal.  Despite the admonition the applicant continued with his generalised asseverations that the Tribunal should have accepted in its entirety his opinions and his account of the facts.

Given that approach it is difficult to deal sensibly with the application.  The short point is that the applicant did not begin the necessary exercise of exposing factual error on the part of the Tribunal, if it existed.”

  1. [41]
    His Honour concluded, at [75], that:

“The applicant has not shown any reason why he should be given leave to appeal against the Tribunal’s findings with respect to Mrs MacLeod.”

  1. [42]
    In respect of Mrs Pearce, Chesterman JA recited a large part of the Tribunal’s reasons in relation to the allegations in section 14 of the referral and then, at [79], said:

“I have set out this finding at length because the burden of the applicant’s argument was that the evidence did not support the Tribunal’s finding that Mrs Pearce had an anastomotic leak.  The evidence in support of the finding is rehearsed at length in the Tribunal’s reasons.  The applicant’s attack on those reasons amounted to no more than a repetition of the evidence he gave before the Tribunal and an assertion that the Tribunal should have accepted the opinion of Dr Downes who performed the post-mortem.  The applicant referred the court to some passages in cross-examination of Dr Wall who said that Mrs Pearce did not exhibit a number of symptoms of a patient with an anastomotic leak.  He did not refer the court to that part of Dr Wall’s evidence in which he said that, notwithstanding the absence of those symptoms, it was his firm opinion that such a leak existed. (AR599L22-L30).  There was more than sufficient evidence to support the Tribunal’s findings.  No error has been shown.”

  1. [43]
    In respect of the allegations in sections 19 and 20 of the referral, Chesterman JA observed that Mr Broadbent had not challenged those findings in his oral submissions, and that they had been briefly dealt with in his written submissions. His Honour said that those written submissions “contained no reasoned criticism of the Tribunal’s findings, and failed to point to any evidence in support of the general proposition they advanced”.[34]  His Honour held that the Tribunal’s findings were supported by the evidence of Dr Wall, an expert retained by the Board.[35]
  1. [44]
    Chesterman JA concluded that in respect of those allegations also Mr Broadbent “had not made out any arguable case of error of fact in the Tribunal’s findings”.[36]
  1. [45]
    In separate reasons, McMurdo J, in agreeing with Chesterman JA, observed at [87] to [88]:

“Here the applicant’s position is made yet more difficult by the fact that all but a few of the findings which he seeks to challenge were made by an acceptance of the evidence of a joint report of expert witnesses, some of whom had been nominated by the applicant.  Of course the Tribunal was not obliged to accept their evidence.  But as the reasons for judgment demonstrate, this and the other evidence was carefully scrutinised.  There was no obvious flaw in this joint report.  The applicant does not suggest, for example, that it was internally inconsistent or that it was partial to the Board’s case.  In many respects, it was unsupportive of that case.  For the relatively few particulars which the Tribunal found were proved but which were not supported directly by that joint report, there was other evidence, not inconsistent with the joint report, which supported the findings.

As Chesterman JA has explained the applicant would seek to challenge the Tribunal’s findings by arguing that his own opinions should be preferred to the apparently overwhelming evidence which the Tribunal accepted.  The applicant has failed to demonstrate a substantial possibility that the Tribunal misused its advantages in doing so.  I agree then with the orders proposed by Chesterman JA.”

  1. [46]
    Leave to appeal from the Tribunal’s decision was thus refused. The court ordered costs against Mr Broadbent.

Mr Broadbent seeks judicial review

  1. [47]
    On 4 January 2011 Mr Broadbent filed an application for review in the Supreme Court of Queensland.[37]
  1. [48]
    Although only the Medical Board of Queensland was named as respondent, it purported to be an:

“application to review the decision of the Queensland Civil and Administrative Tribunal (QCAT) and the conduct of the respondent prior to and during the hearing of allegations and charges that the applicant engaged in acts of professional misconduct during the surgical management of Mrs Ursula MacLeod and Mrs Margaret Pearce prior to and following duodenal switch biliopancreatic diversion surgery that the applicant had performed on each patient during 2003 and 2000 respectively”.

  1. [49]
    Mr Broadbent said he was aggrieved by the decision because it was:

“1.  Wrong

  1. Had the applicant not been fully retired, such decisions would have attracted severe professional penalties.
  1. Regardless, the action and decision has caused severe professional and financial penalties to the applicant.
  1. The decisions will prevent the applicant being registered as a medical practitioner by the Australian Medical Council pursuant to the Health Practitioner Regulation National Law 2009 (Qld) should the applicant wish to return to practice.
  1. The conduct of the respondent prior to the hearing caused the applicant to prematurely retire from medical and surgical practice.”
  1. [50]
    Mr Broadbent set out the following five grounds for the application:

“1. Breaches of the rules of natural justice and procedural fairness occurred at all stages in the process.

  1. The procedures required by law were not observed.
  1. Errors of law were evident in the determination.
  1. There was no evidence or insufficient evidence to justify the decision.
  1. There was evidence of bad faith and fraud.”
  1. [51]
    Mr Broadbent set out some 125 paragraphs of particulars[38] of his allegation of bad faith.  He then set out 96 paragraphs of particulars of his allegation of fraud.
  1. [52]
    The relief he sought was an order quashing or setting aside the decisions and an order referring the matters to QCAT with directives [sic].
  1. [53]
    On 4 January 2011 the Deputy-Registrar of the Supreme Court of Queensland wrote to Mr Broadbent advising that the court was unable to accept the filing of the application for judicial review because leave had not been granted by the Court of Appeal for its filing, and that no further action would be taken by the court in respect of it.
  1. [54]
    It is quite apparent that Mr Broadbent had, although it was misconceived, attempted to obtain by means of judicial review that which he could not obtain through an appeal from the Tribunal’s decision, leave to appeal having been refused.

Mr Broadbent applies to the Federal Court of Australia

  1. [55]
    On 4 January 2011 Mr Broadbent also filed an application for judicial review of QCAT’s decision and the Board’s conduct in the Federal Court of Australia.[39]
  1. [56]
    In lengthy and detailed reasons for entering judgment against Mr Broadbent pursuant to s 31A(2) of the Federal Court of Australia Act 1976 on the basis that he had no reasonable prospect of successfully prosecuting the proceeding, Greenwood J described Mr Broadbent’s 53-page application document as containing:

“many wide-ranging assertions about the conduct of the Medical Board in connection with steps taken or decisions made by the Medical Board concerning its examination of Mr Broadbent’s role or engagement in the medical treatment of two former patients, Mrs Ursula MacLeod and Mrs Margaret Pearce”.[40]

  1. [57]
    His Honour further described Mr Broadbent’s application as follows:

“The application for an order of review does not identify the decisions of the Medical Board which is sought to be challenged.  However the application recites many factual assertions which begin under the heading ‘Bad Faith’ and commence at (a) to (z) and then continue at (aa) to (zz) and then (aaa) to (zzz) and so on.  Although the internal paragraph numbering goes awry in the document, the many factual conduct allegations can be grouped by reference to each block of 26 paragraphs and in doing so, they fall into 10 groups clustered around particular topics although there is a high degree of repetition and over-lapping throughout the various 10 groups of allegations.”

  1. [58]
    That description is also apt to describe Mr Broadbent’s purported application for judicial review in the Supreme Court.
  1. [59]
    Mr Broadbent sought to enliven the jurisdiction of the Federal Court of Australia to exercise supervisory judicial review of the decision of QCAT and the decisions of the Board on the basis that each were amenable to the jurisdiction of the Federal Court by operation of s 75(v), 76(ii) and 77(i) of the Commonwealth Constitution and s 39B of the Judiciary Act as each decision involved a federal element because it was said that the decision-makers were:

“officers of the Commonwealth who had exceeded their jurisdiction, or the decision engaged matters arising under laws made by the Commonwealth Parliament.”[41]

His Honour later observed that nowhere in the application was a ground of jurisdiction asserted.[42]

  1. [60]
    At the hearing of his application in the Federal Court Mr Broadbent conceded that it was the conduct of the Medical Board that he sought to have reviewed and that he did not seek to challenge the decision of QCAT per se.[43]  Notwithstanding that concession the court held that Mr Broadbent’s application amounted to a “collateral attack on the decisions of QCAT and the Court of Appeal because whilst the appellant abandoned at the hearing his application to review the decision of QCAT, he seeks to quash the ‘decisions’ (conduct) of the Medical Board in instigating proceedings before QCAT and he seeks to have the matter of the prosecution against him remitted to QCAT for further consideration or alternatively remitted to the Supreme Court of Queensland.”[44]
  1. [61]
    His Honour referred to the observation of Lord Diplock in Hunter v Chief Constable of the West Midlands Police,[45] adopted by Hayne J in International Finance Trust Co Ltd & Anor v New South Wales Crime Commission & Ors[46] that:

“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made”.

  1. [62]
    Greenwood J concluded, at [213]:

“Since the application does not identify a ground of jurisdiction in the Federal Court and the application seeks to re-agitate and call into question matters determined before QCAT and the Court of Appeal, the application ought to be dismissed.  However, because there is no reasonable prospect of the applicant successfully prosecuting the application, the appropriate order is to enter judgment for the respondent in the proceeding.”

  1. [63]
    His Honour entered judgment for the Medical Board and ordered Mr Broadbent pay the Board’s costs on an indemnity basis.

The Board withdraws the remaining disciplinary matters

  1. [64]
    In a decision of 22 March 2012[47] the then Deputy-President, Kingham DCJ, dealt with an application by Mr Broadbent for his costs in respect of the other disciplinary matters which had been before the Tribunal but which had been withdrawn by the Board.  That withdrawal was with the leave of the Tribunal.  Leave had been granted after the matters concerning Mrs MacLeod and Mrs Pearce had been finally concluded.
  1. [65]
    In refusing Mr Broadbent’s application for costs her Honour referred to undertakings provided in the MacLeod and Pearce matters that he would retire permanently from medical practice, would never re-apply for registration, and would not seek to be relieved of his undertaking.[48]
  1. [66]
    At [5], Kingham DCJ said:

“After all avenues for appeal and any related proceedings were exhausted, QCAT granted the Board leave to withdraw the referrals relating to the remaining 11 patients.  It did so on the basis that the statutory function the Board was required to fulfil would not be furthered by maintaining those proceedings, given the outcome from the proceedings involving the first two patients.  Further, that decision conformed with the object of the Queensland Civil and Administrative Tribunal Act 2009 for proceedings in QCAT to be dealt with fairly, efficiently and economically.”

  1. [67]
    Her Honour observed that much of what was raised by Mr Broadbent in his 39-page submission could not be dealt with the by the Tribunal given the prior history of those and related proceedings.[49]
  1. [68]
    Her Honour rejected a submission by Mr Broadbent that the Board had withdrawn the remaining proceedings because its investigation was fundamentally flawed,[50] the evident purpose of proceeding with the MacLeod and Pearce matters first having been:

“to test whether the decisions made about those two cases would have a bearing on whether it was either possible or necessary to maintain proceedings in relation to the remaining patients.”[51]

  1. [69]
    Her Honour held that “given Mr Broadbent’s undertakings about future medical practice there would be little point in pursing allegations relating to the remaining 11 patients.”[52]  In those circumstances, Her Honour was unpersuaded that any order for costs should be made against the Board and she ordered each party to bear their own cost.[53]

Mr Broadbent’s application for registration

  1. [70]
    In Mr Broadbent’s application for registration,[54] he identifies, in answer to Question 21, that he is returning from a temporary absence from practice of longer than 12 months.  In answer to Question 27 he states that his registration is not currently suspended or cancelled in Australia or overseas and, at Question 28, that he has not previously had his registration cancelled, refused or suspended in Australia or overseas.  Then, in answer to Question 30, he states that he is not disqualified from applying for registration in Australian under the National Law.
  1. [71]
    All of those statements are, of themselves, correct; but they say nothing of the undertaking which then (and still) binds Mr Broadbent not to re-apply for registration.
  1. [72]
    In his curriculum vitae attached to the application Mr Broadbent refers to having “retired from surgical practice in October 2008 and voluntarily surrendered specialist practising certificate”. Again, the undertakings are not referred to.
  1. [73]
    Mr Broadbent attached a further document to his application for registration entitled “Issues with Queensland Medical Board/AHPRA”. It commenced by stating:

“This application to renew my general medical registration requires me to outline past issues in regard to allegations made by the Queensland Medical Board against myself, and the findings of the Medical Tribunal hearing in 2009-2010.”[55]

  1. [74]
    He refers to complaints having been made and says that:

“The QMB merely embellished the false allegations of the complainant, which were given to the complainant by the Allamanda Hospital and the 8 treating physicians, and bolstered their case by withholding favourable expert reports from the decision-makers on the Board and generating an unfavourable report but not disclosing the full facts to their chosen expert – who was not a true expert on the matters in question and invented additional allegations of false facts.

Accordingly the true cause of death of the patient was not determined and any alleged contribution by myself or others could not be properly established – unless unconscionable falsification, fabrication, malfeasance and breaches of natural justice took place – which the prosecution did – by deliberate intent”.[56]

  1. [75]
    He went on to say of the proceedings before the Tribunal:

“The QMB elected to proceed to a hearing of two of the matters – those known as MacLeod and Pearce.  They were vigorously defended, but with difficulty as the QMB had manoeuvred the Tribunal not to hear evidence of any involvement and the cases of other practitioners or to investigate or even refer to the presumed cause of death of both patients.  Such tactics destroyed my defence – which was that the introduction of infection by the hospital and intensivist team caused the death.

The Tribunal itself was in competently [sic] structured, with no surgical peer on the panel.  The Tribunal President made many elementary mistakes substituting his own inexpert views for those of the experts and introducing fresh causes of death in both cases with no supporting evidence.”[57]

  1. [76]
    As to the outcome of the disciplinary proceeding, Mr Broadbent said:

“Even though the process was corrupt and corrupted the Tribunal ordered no penalty against myself, however the effect was to ruin my reputation and private practice, and encourage swarms of plaintiff lawyer firms.”[58]

  1. [77]
    That statement is misconceived and wrong. As already explained the Tribunal having decided a ground for disciplinary action was established, decided to enter into the undertakings in the form required by the Tribunal. That was a decision to take action against Mr Broadbent in a form authorised by s 241(2)(d) of the Professional Standards Act.  
  1. [78]
    He says:

“It has been and still is my view in my repeated and previously ignored request that AHPRA re-opened both matters in order to expose the truth and exonerate myself from the adverse findings – be they minor, they were nevertheless wrong and reached only because of a corrupt and corrupted process.”[59]

  1. [79]
    He claims:

“My complaint of the corrupted process and corrupted practices has been substantiated by the Chesterman enquiry and the actions of the Newman government which has taken steps to eliminate the Queensland Medical Board in its entirety – but regretfully no steps to mitigate the effects on individuals such as myself of the QMB’s admitted malfeasance over many years.”[60]

  1. [80]
    That claim is also misconceived. For reasons which will be developed later the Chesterman enquiry and any actions taken by government in no way substantiate any complaint of Mr Broadbent of corrupted process or practices.
  1. [81]
    Of his undertakings, Mr Broadbent says:

“Such should not preclude my return to medical practice as undertakings were extracted from myself by means of the above corrupted process and corrupted findings.”[61]

  1. [82]
    Mr Broadbent attached to this document “as a way of further explanation” a complaint which he had recently referred to the Queensland Minister for Health. The complaint runs to 26 pages. The complaint relates to the MacLeod and Pearce matters. It is a complaint of misconduct on the part of the former Queensland Medical Board.
  1. [83]
    Mr Broadbent identifies: the members of the Medical Board; the CEO of the Board, the head of the Board’s complaints unit; the head and subordinate investigators; the head of the prosecutions unit of the Board and subordinate prosecuting officers; in-house solicitors; and the State members and staff of the Board and AHPRA as “persona in government employ responsible for the debacles described below.”[62]  He contends that the matters in his complaint expose and demonstrate:

“Wilful negligence, malfeasance, fraud, corruption, conspiracy, misleading and deceptive conduct, injurious falsehoods, unconscionable conduct, abuse of power, abuse of process, malice, fabrication, retaliation and perversion of the course of justice”.[63]

Following a lengthy litany of complaint about alleged failures and actions on the part of the Board, Mr Broadbent alleges:

“The eventual manipulation by QMB of the eventual Medical Tribunal process to ensure that the truth in regard to both Mrs MacLeod’s death and Mrs Pearce was not able to be revealed i.e. the hearing was all about the invented theories without being able to advance the true facts.”[64]

  1. [84]
    He alleges that holding the hearing of both sets of “false charges” concurrently prejudiced “a fair hearing of either matter, and before a Tribunal of non-surgical peers” which he alleges was “quite contrary to due process and natural justice”.[65]
  1. [85]
    Of the hearing itself he makes the following complaints (amongst others):

“The QMB successfully manipulated the court/Tribunal process to ensure the truth was not revealed i.e. no evidence allowed on the cause of either Mrs Pearce or Mrs MacLeod’s death and no referral permitted to the death certificates – made it impossible to demonstrate the falsities of the charges alleging I caused or contributed to the cause of Mrs Pearce and Mrs MacLeod’s deaths – as the cause of death in MacLeod had been mis-stated on the death certificate and the QMB’s case was based on their interpretation of the mis-statements, and the non-consideration of the conduct of the 8 treating physicians and in Pearce the QMB’s objective was to ignore the Coroner’s post-mortem and his decision by inserting their own preferred version.

An ever-changing barrage of particulars arose in both Pearce and MacLeod as fresh evidence not previously particularised was given orally both by ordinary witnesses and alleged expert witness, some with vested interests to protect and/or selective recollections of events then six to seven years past, thereby such effecting the eventual findings i.e. the Board’s case was not confined to the particulars of the allegations in the statement of claim (referral notices) and neither were the eventual Tribunal findings.

Appointment of two non-surgical assessors to the Medical Tribunal contrary to the intention and spirit of the Act, due process and natural justice, as the QMB had assured myself that one of the assessors was a surgeon and thereby as [sic] fellow of the Royal Australasian College of Surgeons – which in fact he was neither surgeon nor a surgical fellow.

The QMB successfully submitted to the Tribunal that no evidence be heard regarding the cause of death nor referral to the death certificate of either Pearce or MacLeod thereby depriving me of my main defence to the allegations being thereby forced to defend ‘when did you stop beating your wife’ type charges.

Heavy reliance by the QMB in:

  1. (a)
    MacLeod on the self-serving evidence of the treating physicians, and nurse representatives of the hospital naturally continuing to distance themselves from culpability (as they had throughout) and the effective ban by the Tribunal’s orders following the motion introduced by the QMB to effectively prevent direct or indirect evidence of the treating physician’s involvement and contributions to the cause of death, and on the expert evidence of the lesser – peer surgeon who had failed entirely to recognise the involvement of the 8 co-treating physicians and several other consulting specialists, and the poor reporting of the Pathology Board.
  1. (b)
    In Pearce in reliance on opinion evidence from an expert witness who had not known that there had been a post-mortem nor the results of that post-mortem – and that all of his opinion evidence was contradicted by the post-mortem report.

The QMB contrary to due process and natural justice, supported the Tribunal’s determination at the conclusion of the hearing that “no submissions be heard orally or written on the evidence” and “written submissions be limited to only directing the Tribunal to passages in the transcript to be considered” – thus the President was unable to be guided by any surgical advice on the nuances of evidence and only by non-surgical – peer members of the Tribunal into the nuances surgical issues [sic].

In sentencing submissions the QMB verbosely grand-standed demanding manifestly excessive penalties and exaggerated and repeated falsities and demonised and vilified myself out of proportion to the findings for the benefit of the reporting media.

After sentencing (no penalty as long as I remained retired) QMB publicly exaggerated and distorted the penalty determined by the Tribunal as a “life ban” and have repeatedly continued to do so in order to continue to demonise and vilify myself.”[66]

  1. [86]
    Under the heading “Effects of Malfeasance”, Mr Broadbent makes (amongst others), these complaints:

“The sum of the deliberate unfair actions of the Medical Board, listed above has meant I retired from practice and voluntarily surrendered my practising certificate in October 2008 (a full year before the Tribunal hearing commenced) and the result of Tribunal/QCAT hearing was a perverted, corrupted and unfair process, based on perverted and corrupted evidence and for the many breaches of natural justice, procedural fairness and due process, as outlined above in sub-paragraph 4.1 to 4.44 which took place before, during and after the hearing.  I have been seriously unfairly and permanently damaged in this process, the damage is enduring and accumulates daily.

The breaches described above were caused by the embedded internal culture of the QMB, they were deliberate and carefully orchestrated in order to achieve a conviction regardless of the facts and the truth and I believe some were made with the knowledge of the solicitors and barristers representing the Board that certain facts of both MacLeod and Pearce were being withheld and others embellished and exaggerated – so that achieving the desired outcome meant sacrificing the truth, justice and a due and fair process.

The breaches resulted in a perverted and unfair hearing, the miscarriage of justice and perverted determinations by the Tribunal, and seriously damaged myself, opening the gate for extensive civil litigation sponsored by plaintiff lawyer groups on the basis of the Tribunal’s findings and the orchestrated publicity generated by the QMB.

Coincident with the hearing in MacLeod and Pearce further charges were being made by QMB in relation to matters of patients Andrews and Kozanic, which came before the Medical Tribunal and was listed for a hearing after Pearce and MacLeod.

The QMB eventually in 2011 could not and did not elect to proceed with the allegations and charges for the reasons that the QMB’s experts’ opinions on which the prosecutions had been based had been impeached at the joint experts’ conference (ordered by the Tribunal in 2009) i.e. the joint experts’ conference determined there were no grounds for such allegations and my treatments of the said patients were more than competent.”[67]

  1. [87]
    In respect of the Board withdrawing the complaints in two particular matters which were amongst the 11 for which leave to withdraw was granted, Mr Broadbent complains:

“The Board falsely informed (by then) the new jurisdiction QCAT that the prosecutions would not proceed in the interim as they were unnecessary in the circumstances, denied the existence of the dissenting joint expert reports, and as long as I remained retired the matters would not proceed.  The QMB subsequently successfully objected and resisted paying my costs by further false representations in regard to the factual reasons the prosecutions were not carried through yet deceptively maintained that they still might proceed.  Such half-baked and discredited prosecutions still lie in QCAT awaiting QMB to activate such if and when they see fit.”[68]

  1. [88]
    Mr Broadbent then addresses at length what he describes as “the true facts and circumstances” concerning Mrs MacLeod and her “real cause of death”.[69]  The matters which he sets out are a rehearsal of his contentions in the Tribunal proceedings.
  1. [89]
    He summarises his complaint as being:

“This complaint is about the alleged institutionalised and repeated malfeasance of the QMB, the resultant miscarriage and perversion of justice brought about the failure of the Queensland Medical Board to competently and objectively investigate valid relatives’ complaints – in the matters of MacLeod and Pearce, and to fairly prosecute such complaints due to the said alleged institutionalised culture of internal malfeasance of its members and staff at all levels of responsibility in order to achieve the required outcomes.

Such failure as described in preceding paragraphs has corrupted the investigation, the prosecution, the hearing and the eventual findings of the Tribunal.  The conduct of some participants is arguably criminal in nature and it has been deliberate and with intent.

The outcome has destroyed the surgical career of myself and had far-reaching and serious damaging consequences to myself and family and deprived my past, present and future patients of my otherwise competent and valuable capabilities and services for at least 10 years (2008 – 2018).”[70]

  1. [90]
    He says that:

“To correct the errors, wrongs and injustices and to prevent such happening again the matters exposed by this complaint, the very matters I have exposed here need to be properly and thoroughly investigated.”[71]

  1. [91]
    In conclusion Mr Broadbent says (amongst other things):

“It is my submission that he [sic] events described above constitutes serious malfeasance and has:

  1. (i)
    voided ab initio the charges raised by the QMB against myself;
  1. (ii)
    impeached the decision of the QMB to prosecute myself; and
  1. (iii)
    rendered the determinations of the Medical Tribunal/QCAT in 2010 both ultra vires and void.”[72]
  1. [92]
    It is apparent from Mr Broadbent’s inclusion of that complaint with his application for registration, on the basis that it provides further explanation of the issues he has with the Board and AHPRA as set out in the attachment to his application, that he intended for the Board to take those matters into consideration in assessing his application, including his contention that his undertaking should not preclude his return to practice. By extrapolation he would have those matters considered by the Tribunal in his appeal from the Board’s refusal of registration.
  1. [93]
    To do so would, in my view, be impermissibly to allow Mr Broadbent to attack the decision of QCAT and of the Court of Appeal.
  1. [94]
    The unavoidable conclusion is that Mr Broadbent for the reasons already identified seeks to re-litigate in the appeal from the Board’s decision all of the matters which he has previously litigated in the Tribunal and the Court of Appeal, and has attempted to re-litigate in other proceedings in various jurisdictions. It is without doubt a collateral attack on the decisions of the Tribunal and the Court of Appeal. It could barely be more so. It is as much a frontal assault as it is a collateral attack.
  1. [95]
    With his application for registration Mr Broadbent also provided an 11-page submission.[73]  Consideration of that submission also leads to the conclusion that, by his application for registration and his appeal, Mr Broadbent seeks collaterally to attack the decisions of the Tribunal and of the Court of Appeal.
  1. [96]
    In the submission, under the heading “Reasons” Mr Broadbent states:

“I resile from all former undertakings as they were made under undue duress and poor legal advice consequent to a torrent of false accusations and dubious evidence from the former and discredited Queensland Medical Board as is described hereafter.”[74]

  1. [97]
    A number of observations should be made about this purported resiling from his undertakings.
  1. [98]
    First, it is included in a submission to the Board, not to the body to whom he gave his undertaking: the Tribunal. Secondly, it purports to relieve him of the burden of his undertaking by a unilateral act on his part. This is misconceived. If he were to be relieved of the burden of the undertaking at all, as the third part of the undertaking makes plain, it would be through an act of the Tribunal[75], not his own act.  Thirdly, by purporting to “resile” from the undertaking he seeks to avoid one part of the undertaking itself; that he would not seek to be relieved of it.  Fourthly, he purports to “resile” from the undertaking so as to do another of the very acts which he undertook not to do: re-apply to the Board for registration as a practising medical practitioner.
  1. [99]
    He again attacks the hearing in the Tribunal by saying:

“Much false misleading, exaggerated and distorted and prejudicial evidence was led by the then Medical Board.  (Since discredited by the PID of Ms Toni Barber and the Chesterman) the Tribunal (selected by the Board) contained no surgeons, no surgical peers on their panel, it limited the evidence I was allowed to give in reply, denied me the right to give submissions on the interpretation of the evidence and allowed the prosecution great scope to exaggerate, distort and invent.  In short the rules of evidence and due process and natural justice were seriously compromised.”[76]

  1. [100]
    He attacks the Tribunal’s findings by saying:

“Surprisingly some findings for myself contradicted others downstream in the sequence, but were incongruously found for the Board.  Clearly there was lack of understanding by the Tribunal in regards to pathology, causation and effect.”[77]

  1. [101]
    He restates his incorrect understanding that the Tribunal decided to take no disciplinary action against him, saying:

“However and very significantly no penalty was awarded against myself despite the strong demands by the Board for a five year suspension from practice.”[78]

  1. [102]
    The Professional Standards Act does not speak of penalties.  As already explained it requires the Tribunal when satisfied that a ground for disciplinary action has been established against a registrant to do one or more of a number of certain specified things, including to require the registrant to give the Tribunal an undertaking.  The Tribunal was satisfied that a ground for disciplinary action had been established against Mr Broadbent and took disciplinary action as authorised by the Act.  “Disciplinary action” is defined in the schedule to the Act to include “any action that a disciplinary body may take at the end of the disciplinary proceedings”.
  1. [103]
    Of the offering of the undertakings he says:

“My legal advisers offered undertakings which had been sprung on me unawares by radio telephone (when the penalty was determined some three months after the hearing I was working in the Northern Territory, told there was no need to attend and I was piloting a passenger aircraft at 10,000 feet towards Groot Eyeland [sic] when called on my cell phone).”[79]

  1. [104]
    Under the heading “False Allegations and False Evidence” he says:

“In the interim period I have had many opportunities to review the evidence advanced against me and have identified the overt falsities on which the matters turned and relied on, and how these falsities were created to gain momentum.”[80]

  1. [105]
    He then rehearses his opinions as to the allegations and findings in each of the matters of MacLeod and Pearce. In respect of Pearce these include that:

“There was a blatant but successful attempt to overturn the Coroner’s decision without due process aided by a compliant and incompetent (from the point of understanding of surgery and surgical pathology) Tribunal.”[81]

  1. [106]
    He again criticises the “incompetence” of the Tribunal in making its findings.
  1. [107]
    In respect of MacLeod he alleges a conspiracy by others involved in her care at the hospital. He then rehearses his views about Mrs MacLeod’s case. They are matters addressed by the Tribunal in its decision.
  1. [108]
    Mr Broadbent submitted that:

“The current AHPRA/QMB cannot take the findings of the Medical Tribunal into account in considering my application as the former QMB and their evidence have been totally discredited, being contaminated by the findings of the Chesterman enquiry and subsequent actions of the Queensland government and the indisputable facts submitted here which demonstrate unsatisfactory allegations, suspect evidence and inconsistent findings by an incompetently constituted Tribunal.”[82]

  1. [109]
    The reference to the Chesterman enquiry is to the report of the Mr Richard Chesterman AO RFD QC to the Parliamentary Crime and Misconduct Committee on the Crime and Misconduct Commission’s assessment of the public interest disclosure in July 2012. Mr Broadbent attached media statements concerning the report to his submission to the Board.
  1. [110]
    In my view, Mr Broadbent’s belief that the report in some way supports his allegations against the Board is incorrect. I shall address those matters later in these reasons when considering Mr Broadbent’s affidavit filed in these proceedings.
  1. [111]
    Mr Broadbent further submitted that the Board must take into account his otherwise unblemished record of achievement and service to medicine and surgery and what he describes as “the unjust five-year self-sabbatical imposed by the Board’s promotion of falsities, coercion and harassment between 2003 to 2010 and beyond”.[83]
  1. [112]
    Insofar as that description is meant to refer to the circumstances under which Mr Broadbent was no longer practising at the time of making his application for registration to the Board, it is a completely inaccurate description.
  1. [113]
    He concluded his submission by saying:

“This submission is a true and correct account of the deaths of two patients being the basis of charges of the professional misconduct against myself brought by the former QMB.

The current AHPRA/QMB needs to investigate and verify the facts and my allegations of misconduct by the former QMB operative”.[84]

  1. [114]
    On 22 April 2014, the Australian Health Practitioner Regulation Agency (AHPRA) wrote to Mr Broadbent informing him that the Queensland Registration Committee of the Medical Board of Australia was giving consideration to refusing his application for registration, having considered the Tribunal’s decision of 10 June 2010 and its order of 2 September 2010. It said that the Committee considered that “given that order, your application for general registration must be refused”. In accordance with s 81 of the National Law it invited Mr Broadbent to make a written submission about the Board’s proposal to refuse his application.[85]
  1. [115]
    Mr Broadbent accepted the invitation and made a submission. In it he said that “the determination and orders of QCAT in relationship [sic] to the two matters under consideration is and was flawed and unsatisfactory for the following reasons”. Those reasons included:

“Accordingly the determinations of the Tribunal have been obtained by unsatisfactory and unfair means, as not only have selective and false facts and circumstances been either negligently or deliberately advanced, they have been supported and accompanied by false and self-serving characterisations and opinions of those promoting the falsities and such evidence undeservedly but understandably influenced and deceived the Tribunal whilst also, relevant and true facts, have been obscured, suppressed or not presented at all.  It is these true facts suppressed or ignored at the time that need to be explored and ventilated, in truth this is vital evidence related to the causation of both patients’ deaths, otherwise fresh to the matters – and needed then, just as it does now to be heard and considered – if only in the public interest of truth and justice.”[86]

  1. [116]
    He alleged that “the Tribunal was knowingly and improperly assembled and constituted” because it did not have two surgeons on it, with at least one having a similar practice and experience to himself. He suggests that “in truth, the legality of the resultant process was and is questionable”. Mr Broadbent alleges that the Tribunal was improperly assembled and constituted by the Board “using its authority under the Act”. He says he was deliberately misled by the Board that one of the assessors was a plastic surgeon. This was said to have been in response to Mr Broadbent’s “initial protest”.
  1. [117]
    Section 31 of the Professional Standards Act required the Tribunal to be assisted by one assessor chosen by the Registrar from the public panel of assessors and two assessors chosen by the Registrar from the professional panel of assessors for the registrant’s profession.  As is clear, the assessors are chosen by the Registrar, not the Board as Mr Broadbent alleges.
  1. [118]
    There is no evidence that either of the professional assessors were not on the professional panel of assessors for medical practitioners.
  1. [119]
    Sections 33 requires the Board to advise the Registrar whether the matter is likely to raise issues of a specialist or technical nature and, if so, to advise the Registrar of the desirable professional background of the assessors to be chosen from the professional panel. The Registrar must have regard to that advice when choosing the assessors. That provision does not compel the Registrar to select assessors with particular skills or of particular backgrounds. In any event, there is no evidence that the Board did not advise the Registrar or that the Registrar did not have regard to any such advice.
  1. [120]
    Moreover, the constitution of the Tribunal was not raised in Mr Broadbent’s application for leave to appeal to the Court of Appeal.
  1. [121]
    Mr Broadbent describes the “unconstitutional Tribunal” as being “legally and medically incompetent to comprehend or hear the issues”, with the result that “blatant medical and surgical untruths were able to go unrecognised by the Tribunal and were encapsulated in the Tribunal’s eventual determinations”.
  1. [122]
    He asserts that the “injustice” was compounded by the President [sic] directing that he would:

“at the conclusion of the evidence entertain no submissions on (the meaning of and admissibility of) the evidence nor at the start of the hearing entertain any evidence relating to or referring to the cause of death of either patient”.

He says that “accordingly natural justice and due process was a major casualty of those determinations”.

  1. [123]
    Again, it is to be observed that these matters were not raised on the appeal.
  1. [124]
    Mr Broadbent even takes issue with the Tribunal’s decision on costs.
  1. [125]
    Mr Broadbent asserts that on the basis of substantiated and demonstrated negligence and malfeasance of the Queensland Medical Board in the era relevant to these matters,[87] an issue estoppel arises because:

“the QMB has been found to be incompetent and untrustworthy in the same era of these matters now before the Committee, and this and other statements I have made to the QMB and APHPRA need to be considered in light of the said enquiries and the Newman government’s determinations and regard to the Medical Board”.[88]

He further asserts:

“Accordingly the Committee simply cannot rely (i.e. are estopped) whatsoever on the determinations of QCAT for they are estopped from any reliance on the propriety of the QMB in bringing on those proceedings and during the proceedings, and accordingly there exist a highly questionable doubt to validity of the entire process of the QMB’s investigation and prosecution of myself – or for that matter of any other registrant similarly affected in that era”.[89]

  1. [126]
    He then goes on to make numerous submissions in regard to “the corrupted Tribunal/QCAT”, which are again a rehearsal of his views as advanced in the Tribunal’s proceedings in respect of each of the patients MacLeod and Pearce.
  1. [127]
    In respect of the MacLeod matter he describes the findings of QCAT as:

“far-fetched, fanciful, contrary to evidence and the Tribunal’s own directions – and were not even part of the QMB’s case against myself – so the issues were not responded to by myself, and in any event the answer to the question was evident from the hospital records – if one looked”.[90]

  1. [128]
    In having his application for registration considered, first, by the Board, and on appeal by QCAT, that he seeks to attack the earlier decision of QCAT could not be clearer. To the extent that he complains of a denial of natural justice, this did not feature in his application for leave to appeal.
  1. [129]
    The same observations can be made of Mr Broadbent’s submission concerning the Pearce case that:

“Were the Tribunal to have been properly constituted with appropriate peers of myself who understood the nuances and intricacies no damaging determinations would have been made.  Had the Tribunal allowed my legal team to explain those nuances, again no harmful determination would have been made.”[91]

  1. [130]
    In his submission to the Board Mr Broadbent said this of the undertakings which he entered into with the Tribunal:

“As a consequence of errors of the type described above in the Tribunal’s determinations my legal team were confident of an appeal being successful and proceeded accordingly to file appeal documents.

I was advised and requested by my legal team, because of repeated sensational orchestrated media presence, harassment and reporting before and throughout the hearing, that I was not to attend the costs and penalties hearing, then occurring some months afterwards.  I had instructed my lawyers as to my wishes and returned to my job as a commercial pilot in the Northern Territory.  Nowhere in my instructions or advice had been raised the matter of offering any undertaking from myself.

By then I had retired from practice almost two years prior due to the sensationalised media publicity and repeated threats from the QMB which made my practice untenable, and conditions became such in the interim by way of that said same and sustained publicity that perceived it unlikely that I would be able to return to surgical practice even if my appeal was successful – as the damage was permanent and had been distributed and effective Australasia and worldwide.

Despite the findings against me it had not been perceived by my legal team that any penalty against me based on the Tribunal findings of a contribution to the cause of death (and not had caused the deaths) that such penalties may not even involve a suspension from further practice – as by then I had served two years of self-imposed suspension.

On the late morning of the hearing whilst piloting my assigned aircraft over Arnhem Land with a load of passengers I received a phone call from my legal team which I was able to answer very briefly and with difficulty, responding that I was unable to comprehend what the caller was saying but that they, the lawyers would have to do what they considered best for my interests in the circumstances.

I was rather stunned to find eventually that my lawyers had not countered the excessive penalty demands of the QMB but had volunteered without an apparent need or cause (when I read the transcript) by advancing an irrevocable undertaking and effective self-imposed life-time ban from practice, in circumstances where at the very most a short suspension from practice could have been anticipated, and at best a reprimand or conditions imposed – or nothing at all.  This was very definitely an “own goal”.

To volunteer without cause to accept a lifetime penalty was incomprehensible to me, but was explained later that such was merely a tactic pending the appeal and the appeal would nullify the undertaking.

My appeal however was unsuccessful because my indemnity insurer after assuring me of their support for the appeal, withdrew that support after achieving effectively the life ban which could protect their interests going forward.  It seems that the voluntary undertaking was designed to protect the interests of my indemnity insurer and not those of myself.  I believe the own goal came off the foot of the “indemnity insurer”.

In my mind I have been misled by my legal team to effectively volunteer for a life sentence for a relatively lesser offence for no apparent or tangible gain.  Even the Medical Board was surprised as they were only demanding an “exaggerated” five-year penalty and hoping for two or three. 

It would be therefore unconscionable in the circumstances to rely on the undertaking proffered by my lawyers without my full knowledge or informed consent to deny me returning to practice.  A life sentence is excessive in the circumstances and I have already effectively exceeded the exaggerated five-year penalty demanded by the Board.”[92]

  1. [131]
    His “summary” includes the following:

“As the Committee should understand from the submissions above that at most I was a victim of circumstances and the negligence of others, for which I have been held responsible because my name was “on the bed”, and have paid an undeservedly heavy price for that responsibility – whilst other responsible parties have gone scott-free.

I have never discussed or ever agreed with my lawyers to make undertakings of any sort in relation to submissions, and apart from timely written instructions had told my lawyers to act in my best interests at all times.

I did not then, nor do I now consider my best interests were considered by the barrister volunteering those undertakings purportedly on my behalf and without my informed consent.

I have never sought to negotiate my way out of allegations or prosecutions by making deals, and to the contrary, the records show I have consistently refused to do so in regard to any matters between myself and the QMB.  I have always elected to face the music than find the easy way out.

In the undertakings made by my lawyers there was and is no apparent gain for myself as such.  Far better for them to have said nothing.  Far better to accept a five-year penalty than a lifetime penalty.  It was (as they say) a “no brainer”.

Regardless such undertakings might be interpreted as an admission on my behalf but I have consistently disputed the facts as alleged and denied all and every allegation made, and I still do for the reasons outlined above, reasons the investigation did not discover, and reasons that have not allowed [sic] to be heard.

To hold me to those undertakings would be unconscionable as they were not and are not my undertakings and moreover are manifestly unfair and excessive as a penalty in the circumstances.”[93]

  1. [132]
    His “conclusion” includes:

“I have demonstrated a unconstitutionally constructed tribunal of fact and numerous errors in their determinations;

…

I have demonstrated unconstitutional departures from the principles of natural justice, due process and procedural fairness;

…

That the QMB empanelled an unconstitutionally convened Tribunal to hear the matters itself renders the determination of the Tribunal corrupted, unsound and unfair and their determinations (as demonstrated) thereby flawed and highly questionable if not entirely ultra vires;

…

I have submitted sound reasoning why the Committee are estopped from taking the QCAT determinations into account in their consideration of my application indeed the moral high ground has been reversed by the Queensland Parliament’s actions;

I have demonstrated that the undertaking proffered to the Tribunal in my absence but not my undertakings but very likely undertakings satisfying my indemnity insurers’ ongoing interests – and further in effect such undertakings becoming encompassed by the estoppel principles described above and cannot be taken into consideration by the committee;

Finally, I remind the committee that despite all of the above and the unjust demonization of myself by the QMB – the Tribunal imposed no penalty on myself.  It would be unjust to impose greater penalty than the tribunal clearly intended and deemed appropriate at the time.”

  1. [133]
    That conclusion not only again demonstrates the extent of the attack which Mr Broadbent makes on the decision of the Tribunal, it also, again, completely misrepresents the decisions made by the Tribunal. The Tribunal did not impose “no penalty”. To suggest that “It would be unjust to impose greater penalty than the tribunal clearly intended and deemed appropriate at the time” is plainly wrong. Holding him to his undertaking does not impose some greater penalty than was intended and deemed appropriate. It enforces the very penalty intended and deemed appropriate.

Mr Broadbent’s affidavit in these proceedings

  1. [134]
    Mr Broadbent filed an affidavit in these proceedings which he says “is about why I should be released from an undertaking made over six years ago to this tribunal”.
  1. [135]
    That statement is itself misconceived in so far as it suggests that Mr Broadbent has applied to the Tribunal to be relieved of his undertaking. As already discussed, he has never done so.[94]  The affidavit is filed in relation to the Board’s application to strike out his appeal from its decision on the grounds that the appeal is vexatious and an abuse of process.  At the centre of the Board’s application is that Mr Broadbent’s application for registration was made in contravention of his undertaking, he having undertaken never to do so.
  1. [136]
    He then sets out, in 28 numbered paragraphs, why, “in simple terms” he should be released from his undertaking. These include that:
  • He was innocent of all the allegations made against him;
  • He was “framed”;
  • Relevant evidence was supressed and much evidence was false;
  • The tribunal was incompetent to hear the matter;
  • He was not afforded natural justice before and in the hearing;
  • Evidence before the Tribunal was false and misleading;
  • Due process was not always followed during the hearing;
  • Submissions on the evidence were denied which would have exposed the sham nature of the evidence and some witnesses;
  • The tribunal’s findings were inconsistent with the evidence;
  • Undertakings were made for an improper purpose;
  • The undertakings afforded no utility to himself;
  • A competent tribunal should have rejected the undertaking;
  • Costs were awarded inconsistently with the principles of costs;
  • He has been rendered impecunious by these improper events and unable to pay costs;
  • If he cannot return to work to earn the necessary funds he will be bankrupted;
  • If these matters are not carried through “to a logical and proper conclusion” the real reasons why two of his former patients died unexpectedly will not be publically revealed;
  • The relatives will not have “absolute closure”, nor would the truth be revealed to them;
  • The health practitioners and the hospital responsible for the deaths will remain in practice without censure - having been successful so far in covering up their involvement and framing Mr Broadbent with false testimony;
  • Justice will continue to be perverted by “the litany of contrived and orchestrated events”.
  1. [137]
    The extent of the conspiracy which Mr Broadbent alleges was perpetrated against him is apparent from paragraph 6 of his affidavit where he states:

“Everything was orchestrated for maximum impact and the contrived distorted and exaggerated allegations and false details leaked to the media by the then Queensland Medical Board at regular intervals since mid-September 2007, much of it through the complainant who had been allowed to infiltrate the QMB offices and held investigators psychologically captive and thereby encouraging the sequential negligence, malfeasance and unfair and improper practices (which is now recognised as stock in trade for QMB since the Chesterman report) including sham peer reviews and imposing repeatedly the maximum impact unnecessary and unlawful conditions on my practice and repeated threats of imminent suspension of my practicing certificate – allegations and falsities which were highly publicised nation-wide and internationally for the impact of this scandal value with the objective and effect of forcing me from practice, weakening my position and defences and depriving me of income and future employment.”

  1. [138]
    The complainant referred to is the daughter of Mrs McLeod.
  1. [139]
    As earlier referred to in these reasons, Mr Broadbent considers that the report of Mr Richard Chesterman AO RFD QC and a subsequent review of cases conducted at his recommendation lends some support to his allegations against the Queensland Medical Board. He exhibits an extract of Mr Chesterman QC’s report[95] and an extract from the panel reviews.[96]  He suggests that those reports support his views about “the Board’s negligence, malfeasance and unfair and improper practices”;[97] that the “standard modus operandi” of medical boards Australia-wide for many years in responding to a medical practitioner’s “impudence and disrespect for (the Board’s) superior knowledge is a “literal blitzkrieg” designed and intended to shock and awe and set the scene for the total destruction of the practitioner’s practice”.[98]
  1. [140]
    No such support for these views is to be found in those reports. As is plain from page 40 of Mr Chesterman QC’s report exhibited to Mr Broadbent’s affidavit, the focus of the Commission’s assessment was not matters of the kind of which Mr Broadbent complains. The report states:

“The subject matter of my assessment has been Ms Barber’s proposition that MBQ and QMBA and QBMBA have signally failed to protect the public by lax registration allowing inadequately trained doctors to practice; has systematically failed to act in response to complaints about doctors’ failures in practice; and has not monitored conditions imposed upon doctors who are found to require oversight or supervision in their practices.”

  1. [141]
    Any criticisms of the Medical Board of Queensland or the Queensland Board of the Medical Board of Australia in the report relate to failures to respond adequately, and in the timely way, to complaints against practitioners such that practitioners who may be unfit to practice or who may pose a risk to the public may continue to practice thus undermining the protection of the public. For example, Mr Chesterman QC refers to evidence which suggested that one particular medical practitioner “was allowed to practice for over 15 years despite substantial and growing evidence that he was unfit”. He mentioned that matter “because it appears to be a case of ‘light touch regulation’ which did not protect the public”.[99]
  1. [142]
    Mr Chesterman expressed the view that:

“Although in my assessment there is no evidence of ‘systemic failure’ in the registration of medical practitioners, or in the investigation of complaints against them, there are indications that QBMBA may not adequately respond to the substance of complaints and may too readily find complaints to be unsubstantiated.”[100]

  1. [143]
    Mr Chesterman QC made a number of recommendations, including:

“That there be a review of all the cases of misconduct or alleged misconduct by medical practitioners dealt with QBMBA or in which AHPRA has recommended disciplinary action against a medical practitioner, including cases in which the Notification Advisory Committee and/or QBMBA rejected a recommendation by AHPRA to take disciplinary action.  The review should be undertaken by a panel of three comprising a legal practitioner, a medical practitioner and someone who has served on regulatory boards and has a reputation for decisiveness.  The purpose of the review should be to determine whether QBMBA has made timely and appropriate responses to the complaints and recommendations; and whether it is achieving the objectives of the Health Practitioners’ (Professional Standards) Act set out in s 6, to protect the public, uphold standards of medical practice and maintain public confidence in the medical profession.”[101]

  1. [144]
    There is, in my view, nothing in the Report which provides the support for Mr Broadbent’s allegations he asserts. Moreover, Mr Broadbent’s assertions in that regard fail to take into account that his conduct, as referred by the Medical Board of Queensland to the Tribunal, has been the subject of a hearing which led to a determination by the Tribunal that he engaged in unsatisfactory professional conduct. The only extent to which those matters are taken into account by him is in his attacks upon the Tribunal’s processes and findings. The matters considered by Mr Chesterman QC in his assessment were not matters which had been the subject of such disciplinary hearings and outcomes as were Mr Broadbent’s matters. Indeed, that they were not when perhaps they should have been is the very point that Mr Chesterman was making.
  1. [145]
    These observations are also applicable to Mr Broadbent’s misplaced views about the panel review providing some support for his allegations. The review by the panel was to give effect to the recommendation of the Chesterman Report set out above. It involved an examination of 596 files. A number of issues were said to emerge from that process. They were:
  • “Delays in the timeliness of complaints/notifications progressing from receipt through the various assessment and disciplinary processes to a final decision by the Board;
  • A lack of consistency and predictability of outcomes in the decisions of the Board across complaints/notifications or a similar nature;
  • Considerable delays and inconsistencies in a significant number of files resulting from the cross-jurisdictional referral, consultation and information-sharing obligations imposed under the current legislative scheme.”[102]
  1. [146]
    The Panel found that there were delays and inconsistencies in dealing with complaints with the result that practitioners who potentially posed a risk of harm to the public continued to practice. However, all of that is irrelevant to Mr Broadbent’s situation.
  1. [147]
    The complaints concerning him proceeded to a Tribunal hearing. The Tribunal, on some matters, found against him and was satisfied that he had engaged in unsatisfactory professional conduct. The Tribunal decided that an appropriate disciplinary action to be taken against Mr Broadbent was to require him to provide an undertaking to retire permanently, never re-apply for registration and never seek to be relieved of his undertaking; which he gave.
  1. [148]
    Mr Broadbent’s affidavit runs to some 78 pages. He contends that by its content it is not intended to collaterally attack the findings of the Tribunal. He says:

“Whilst this affidavit is not intended as collateral attack on the determination of the previous Tribunal findings in the application of natural justice and procedural fairness to this current matter the Tribunal must understand just how and why certain determinations were made for the fair reconsideration of my application to resume practice.  Undoubtedly those determinations were taken into account in my rejected application and in this appeal such will also become a central consideration regardless.”[103]

  1. [149]
    Despite his contention to the contrary, it is clear that his affidavit, and the appeal in which it is made, is a collateral attack on those findings. Much of the affidavit is simply a further rehearsal of those matters which Mr Broadbent has previously agitated and consistently sought to re-agitate in various jurisdictions. A sample of some of his assertions and contentions make plain that his attack on the previous findings of the Tribunal are indeed central to his appeal.
  1. [150]
    He deposes to there having been,

“a litany of continuous unfair and improper practices which has had a serious effect on due process, procedural fairness and natural justice applied to myself and the matters since 2007 – all of which accumulated eventually to ensure triumph of lies over truth – particularly in the Tribunal hearing where relevant evidence was suppressed and distortion, exaggeration and untruths pervaded by direct intervention from the Bar table.”[104]

This, he alleges led to the determinations of the Tribunal being “achieved on the basis of improper and unfair practices which has in the long term perverted the course of justice”.[105]

  1. [151]
    He contends that the Tribunal’s determinations “would be fairer applied if the truth was applied to them by decision-makers and the appropriate degree of cynicism and circumspection”.[106]  By this, he invites the Tribunal, as the decision-maker on his appeal from the decision refusing him registration, to approach the earlier findings of the Tribunal with cynicism and circumspection. That invitation should be refused.
  1. [152]
    His affidavit describes “the current issue” as the matter of the undertaking.[107]  He submits it was “improperly obtained and was improperly proffered to the Tribunal and accordingly invalid and unenforceable.  It is void or voidable”.[108]
  1. [153]
    He deposes that he “did not become really aware of what took place at the penalty and costs until months later when my solicitor delivered material to myself – which included a transcript to the penalties and costs’ QCAT session”.[109]
  1. [154]
    He deposes to being “puzzled and perplexed at why the undertaking was offered at all as not only was it illogical as it was diametrically opposed to the penalty my counsel had proposed[110] and gave the Tribunal a great ‘out’”.[111] 
  1. [155]
    He deposes to having been flying an aircraft when he received a call from his solicitor stating “the QC needed me to give an undertaking not to resume practice”.[112]  He says:

“Undertakings and concessions had never been seriously discussed previously although raised by my barrister without my prior consent in discussions he had with the other side just before the hearing started and I was then and still am convinced I did nothing wrong in the management of MacLeod and Pearce other than trust my colleagues and the hospital to do their tasks professionally, and moreover I was not in a position to discuss such at that moment by the very nature of the task I was performing, the time available and the quality of the mobile phone media in mid-flight.  After ascertaining that this was merely a tactic until the appeal I instructed my solicitor to ‘do what is in my best interests’, and expected my counsel to do just that.  Presumably them [sic] something new and urgent not considered previously had prompted the phone call.”[113]

  1. [156]
    This evidence that he gave those instructions after ascertaining that the giving of an undertaking was “merely a tactic until the appeal” is inconsistent with what Mr Broadbent said in his submission to the Board in May 2014 in response to its proposal to refuse his registration application. In that he said that volunteering a “life-time penalty was incomprehensible to me”, but was explained later that such was merely a tactic pending the appeal.”[114]  Both those submissions are inconsistent with what he later deposes being that “the tactics referred to by the QC via my solicitor were never explained to myself”.[115]
  1. [157]
    Mr Broadbent contends that although the undertaking had presumably been part of the “new tactics promoted via the QC” and that it “would evaporate after the successful appeal”, three weeks before the appeal:

“the insurer also wanted to negotiate with the Board over trading my appeal rights for withdrawing other charges and pressurise me quite unconscionably to agree as the other side were keen on the idea.  Again matters raised without my consent and knowledge”.[116]

  1. [158]
    He says that he

“refused to engage in such horse-trading and plea bargainings just as I had rejected other suggestions by solicitor and counsel simply because I was not guilty of any unprofessional conduct and was not prepared ethically or morally to submit to lies.”[117]

  1. [159]
    This statement is inconsistent with the findings of the Court of Appeal as to whether Mr Broadbent agreed to compromise his appeal based on Mr Broadbent’s own evidence on the application for leave. He had there deposed to having agreed to put the offer, albeit “eventually and reluctantly” following which he had “very serious and deep renewed soul-searching” which led to him instructing his solicitor to withdraw the offer. That is quite different to a complete refusal to engage in horse-trading and plea bargaining to which he now deposes.
  1. [160]
    It is also inconsistent with his having offered the same undertaking through his counsel on the first day of the hearing in the Tribunal when an application was made on his behalf for a permanent stay based upon such undertaking. I do not accept that he did not provide instructions to offer that undertaking or to make that application.
  1. [161]
    He contends that there was no utility in his offering such an undertaking to conclude the disciplinary proceedings, that the only benefit from it was to be derived by his insurer,[118] and that it obtained that undertaking by him “by false pretences and deception without my true or proper informed consent”.[119]
  1. [162]
    In deposing to matters concerning his application for leave to appeal in the Court of Appeal, Mr Broadbent makes scandalous allegations concerning Chesterman JA, as His Honour then was, who he describes as being “particularly aggressive” and has having “refused to accept the format (of submissions) drafted by the insurer’s QC.[120]  He goes on to depose:

“Months later when I read the transcript I realised the lead member of the Appeal Court was Richard Chesterman QC whom I had soundly beaten 20 years previously (1991-1995) in a five year highly contested case against civil aviation in the Federal Court [MRMB7], and to whom I had suggested he needed a splenectomy to improve his advocacy.  Chesterman QC clearly recognised me and knew who I was yet failed to declare that his past interest compromised him and disqualified him from hearing the matter – such compromisation became evident by his aggressive demeanour clearly interpreted from the transcript and I verily believe contributed much to my lack of success that day.”[121]

  1. [163]
    I utterly reject this baseless and scandalous accusation.
  1. [164]
    He again challenges the Tribunal’s decision on costs.[122]
  1. [165]
    He contends that “since the hearing new and compelling evidence has been discovered in both MacLeod and Pearce that casts even more serious doubt on the validity of both determinations and suggests strongly there has been a miscarriage of justice in both determinations.”[123]  He concedes, though, that most of this “compelling evidence” was available before the first Tribunal hearing, but alleges that “the negligence and malfeasance and blocking tactics of the Board prevented it from being discovered”.[124]
  1. [166]
    He contends that:

“The new evidence and evidence supressed needs to be heard and once heard should be applied to the former evidence and determinations of the former Tribunal in considering whether the undertakings of myself are void or voidable and/or indeed whether the new evidence demands a fresh hearing of the matter or a judicial enquiry or a prior referral to the coroner.”[125]

  1. [167]
    An analysis of what Mr Broadbent describes as “fresh evidence” demonstrates that it is not fresh evidence at all. He deposes[126] to having since the hearing managed for the first time to obtain the full set of blood tests of Mrs MacLeod taken in the final days of her life.  He does not explain why it is that they were obtained, for the first time, after the hearing. In any event, they must have existed and have been obtainable prior to the first hearing.  The same is true for other “records” to which he refers.  Indeed, whilst referring to some of these records as “fresh evidence” he says that they were before the Tribunal but overlooked.[127]
  1. [168]
    He complains that “insufficient weight” was placed on the obesity treatment of Mrs MacLeod “even though the Tribunal found they did occur”.[128]  This clearly demonstrates that Mr Broadbent simply seeks a reconsideration of matters considered by the Tribunal because he disagrees with the Tribunal’s determinations upon them.
  1. [169]
    Under a heading “Closing Argument and Submissions on the Evidence” Mr Broadbent makes manifest that the central purpose of the appeal is to challenge the conclusions of the Tribunal.  He commences that section of his affidavit by saying:

“The submissions on the evidence if they had been allowed, my counsel would have emphasised the following:”[129]

  1. [170]
    He then sets out some 33 pages of submissions. It is not at all clear that Mr Broadbent was prevented from making submissions; many of the matters are the subject of consideration of the position put for him in the hearing but upon which the Tribunal determined against him for reasons which the Tribunal clearly explained. Those matters include: whether there was a handover; whether Mr Broadbent remained responsible for the co-ordination of Mrs MacLeod’s care; to whom the nurses were reporting; the arrangements for weekend surgical cover. Mr Broadbent describes the Tribunal’s findings as variously as “facile” and “wrong”.[130]
  1. [171]
    He deposes to the following:

“At the end of the prosecution’s case I instructed my barrister to move for dismissal of the matter as there was no case to answer.  He did not.  There was a three month hiatus before our defence was heard.  Once more I instructed my barrister to move for a dismissal on the grounds that the prosecution had not established a case that I had contributed to the death of Mrs MacLeod.  Essentially this was because the MacLeod case rested on a theory arising from facts which were shown to be untrue.  Once more my barrister declined my instructions without explanation.  As events turned out this would have been an ideal opportunity to make the submissions I was eventually denied.  Attached at XX is a true copy of the document that I submitted through my solicitor to my barrister.  Firstly on 21 September 2009 and the same document again before the hearing resumed in May 2010.  Note that all of the allegations have been addressed.  [Exhibit MRMB8].”[131]

  1. [172]
    Exhibit MRMB8 to which he refers is a 16 page document which commences with the question, apparently directed to his solicitor and counsel, “At what point do we move to have these charges dismissed?”. He then sets out a great many points commenting on the case against him.
  1. [173]
    As he points out, there was a three month break before the defence case was to be heard. He correctly identifies that “this would have been the ideal time to make the submissions”, but he says he was denied that. It is not clear whether he alleges that he was denied that by the Tribunal or through his barrister not moving for a dismissal of the case on a no case submission as he had instructed.
  1. [174]
    In any event, he went on to give evidence and to mount a defence case.
  1. [175]
    The short answer to all of these complaints is that he had the opportunity to put those matters. If they were not put for forensic reasons, that is a decision made by him or on his behalf as to how to conduct the proceedings. If he was denied by the Tribunal of the opportunity to make submissions, that would properly have been a matter to be raised on the appeal. If the case was conducted contrary to his instructions, that too could have been raised on the appeal, as it was in relation to the failure to follow his instructions to withdraw his offer of compromise.
  1. [176]
    No matter which, if any, of those circumstances prevailed, they each demonstrate that having sought leave to appeal and having had that leave refused, it is not appropriate to allow those matters to now be raised in an appeal from a decision which he undertook he would never apply for and which can only be a collateral attack on the determinations of both the Tribunal and the Court of Appeal.
  1. [177]
    A further demonstration of why it is that Mr Broadbent should not now be permitted to re-litigate these issues on this appeal, having had the opportunity to do so in the earlier proceedings in the Tribunal or in his application for leave to appeal, is to be found in his evidence concerning the penalties and costs hearing. Mr Broadbent deposes to not having attended the costs and penalties and hearings but having given his solicitor “instructions which were directed towards a low penalty, and essentially to plead the submissions the Tribunal had refused to allow at the conclusion of the hearing i.e. better late than never and have such in the records for use in the intended appeal.”[132]  The document containing those instructions is itself exhibited to his affidavit as MRMB13.
  1. [178]
    The document is 103 pages in length and comprises 667 numbered paragraphs. It is dated 22 July 2010 and is said to be “version 15”. It commences with the observation that “these are very disappointing decisions particularly because it is evident that Dr Broadbent is the victim of false charges based on false allegations”.[133]
  1. [179]
    It goes on to say that:

“A short history of the matter should be presented to the Court of Appeal. There are a few critical points required to set the perspective.”[134]

  1. [180]
    He refers to the Tribunal reaching a decision where two thirds of the allegations were found in his favour,[135] but still finding against him on some allegations.  He says that “to achieve this inexplicable quixotic state the Tribunal had to make numerous errors and omissions when dealing with the evidence and charges”.[136]  He suggests that “some confusion” might be expected given “the technicalities of the matter and the composition of the Tribunal”, and that “the Tribunal’s attempts to simplify matters may have led to the perversity of the decision”.[137]
  1. [181]
    He refers to the Tribunal’s “inexplicable logic”,[138]  and the reasons given as being “almost beyond belief”, describing the decision as “certainly not science” and “bad law”.[139]
  1. [182]
    He asserts that the Tribunal made the following errors:[140]
  • Error in the appropriate construction of the Tribunal.
  • Errors of acceptance of fact.
  • Errors in acceptance of validity of charges.
  • Evidence of acceptance of opinion.
  • Errors of acceptance.
  • Evidence [sic] of acceptance of opinion.
  • Errors of acceptance of evidence.
  • Errors of interpretation of the evidence and facts.
  • Errors of findings from the facts.
  • Errors of assessment of significance of findings.
  • Errors of application of findings to charges.
  • Errors of direction of findings to the treating doctor or person responsible.
  • Errors in determining Dr Broadbent’s responsibilities and applying them to the findings of fact.
  • Errors in determining contemporary standards and applying them to the findings of fact.”[141]
  1. [183]
    What follows is, again, a rehearsal of all the views of Mr Broadbent. He makes other various complaints, such as a lack of particulars of charges,[142] and a failure to consider his affidavit evidence.[143]  He sets out errors said to have been made by the Tribunal over 45 paragraphs.[144]  He includes, in the form of a draft decision written as though by the Tribunal, 11 pages of ‘findings’ which the Tribunal should have made about Dr Woods, the principal witness for the Board.  Those proposed alternative findings conclude: “Given the MBQ charges were based substantially if not entirely on Dr Woods’ evidence, the tribunal therefore rejects all of the charges against Dr Broadbent.”[145] 
  1. [184]
    He calls into question the capacity of the Tribunal to deal with the ‘nuances, technicalities and complexities of the subject matter”, suggesting it was “overwhelmed” by these matters.[146]
  1. [185]
    Page upon page of further alleged errors are set out. He alleges oppression and an abuse of process,[147] with the consequence that the decisions “fly in the face of the evidence and facts”.[148]
  1. [186]
    He contends that “the Tribunal has promoted conjecture and novel theories to fundamental truths which have erroneously been allowed to change the balance of probabilities in breach of satisfaction of the Briginshaw v Briginshaw standard of proof of each allegation”.[149]
  1. [187]
    He formulates other findings that the Tribunal ought to have made having “failed entirely in the opportunity it had of making such”.[150]
  1. [188]
    He alleges “selective evaluation” of the evidence of Dr Woods,[151] and of the Tribunal having “tunnel vision”.[152]  He describes reasons and findings of the Tribunal as “frankly bizarre”.[153]  He says that the Tribunal was “wilfully blind” to facts,[154] and that “in short the decision was and is perverse”,[155] in the course of which the Tribunal made findings in contravention of the evidence in which it contradicted itself.[156]
  1. [189]
    He contends that the Tribunal has not commented on the “unescapable facts of the case” setting out what he says those facts are.[157]
  1. [190]
    In respect of the handover and coverage issue and the description of Mr Broadbent being “captain of the ship”,[158]  he describes the Tribunal’s thinking as “woolly, fuzzy and imprecise and confused”.[159]
  1. [191]
    He contends that in respect of the post mortem concerning Mrs Pearce:

“The real facts have just been ignored.  The Tribunal accordingly has erred catastrophically and very likely unlawfully.  It is my understanding that a coroner’s post mortem finding cannot be overturned other than by a properly convened District Court.  This did not occur.”[160]

  1. [192]
    The Tribunal, in dealing with this application, does not need to address each or indeed any, of these allegations, contentions, criticisms or submissions, although some of them such as the constitution of the Tribunal, the legal status of the Tribunal’s decision, and the legal status of his undertakings, are plainly wrong as matters of law. The simple point for the purposes of this application is that all of these matters were identified and articulated in detail by Mr Broadbent prior to the hearing on penalty and prior to the application for leave to appeal. To the extent that they were raised, particularly on the application for leave to appeal, they have been considered, decided upon, and leave refused. To the extent that they were not raised, they could have been.
  1. [193]
    What Mr Broadbent now seeks to do, by including that document in the material he places before the Tribunal on this application, is to invite consideration of it in his appeal from the Board’s decision to refuse his application for registration. Indeed, he says it is central to it.

Mr Broadbent’s submissions on the application

  1. [194]
    Mr Broadbent filed no written submissions before or at the hearing of the application, advancing only oral argument through his counsel, Mr Carlyle. Much of counsel’s oral argument focussed upon the giving of the undertaking by Mr Broadbent. It was contended that the undertaking was given by Mr Broadbent’s then senior counsel without instructions. As I have observed already, those submissions went so far as to contend that in the circumstances the undertaking was not even given.
  1. [195]
    I reject that submission. No evidence from senior counsel or from Mr Broadbent’s then solicitor was adduced. Mr Broadbent, in one of many written submissions filed subsequently to the hearing, without permission, and in an application for miscellaneous matters seeking further directions, seeks orders that senior counsel ought now be called to give evidence. If senior counsel were to give evidence the circumstances by which that was to be secured could have been put in place before the hearing of the application. There is no evidence of Mr Broadbent having attempted to obtain evidence from either senior counsel or his solicitor, or of his having failed in such attempts, to explain the absence of such evidence. In the absence of evidence, other than that of Mr Broadbent, I do not accept that the undertaking was offered as some “mere tactic contrived by senior counsel”. As I have already discussed, Mr Broadbent’s own evidence about those matters is quite inconsistent. I simply would not accept it without some corroboration.
  1. [196]
    The contention that the undertaking was given without his instructions simply does not accord with the record. Having indicated that an undertaking in those terms was required, senior counsel states that enquiries will be made as to whether Mr Broadbent was prepared to give the undertaking required. It is apparent that there was some break in the proceedings. Upon recommencement senior counsel clearly and without qualification informed the Tribunal that his instructions were to give the undertaking.
  1. [197]
    That Mr Broadbent would give such instruction is consistent with him having offered such an undertaking on day 1 of the hearing through his counsel in order to obtain a stay of the disciplinary proceedings. I do not accept that that offer of an undertaking was also without his instructions to do so.
  1. [198]
    In my view, given Mr Broadbent’s history of litigating all the issues surrounding these matters, had the undertaking been given to the Tribunal by him without his instructions or as some mere tactic pending his appeal on his understanding or belief that he would be relieved of it as a consequence of a successful appeal, and having lost that appeal with judgment published on 10 December 2010, it is inconceivable that he would not raise those issues in either his misconceived applications for judicial review in either the Supreme Court of Queensland or the Federal Court of Australia[161]
  1. [199]
    Even if it were to be accepted that Mr Broadbent agreed with some proposal to offer the undertaking merely as a tactic, that would be a very serious matter itself. Mr Broadbent is a qualified lawyer. Although his curriculum vitae attached to his application for registration[162] states “did not renew Bar Practising Certificate after 2008-9”, other evidence seems to establish that he was a member of the Bar at the relevant time.  In the course of proceedings in the Tribunal on 4 March 2010 he was asked whether he was “also admitted as a barrister in Queensland and had been since 1998”, to which he answered “that’s correct”.[163]
  1. [200]
    An extract from the Bar Association’s Queensland’s directory on 7 February 2011 indicates that he then held a current practising certificate, although subject to special conditions.[164]
  1. [201]
    Mr Broadbent’s evidence, if accepted, would result in the conclusion that when informed by a tribunal[165] that it required him to give an undertaking to the Tribunal in the proper exercise of a statutory power conferred upon the Tribunal, he, as a member of the Bar gave that undertaking merely as a tactic for an ulterior purpose intending not to be bound by it.  That, as I say, would be a very serious matter.  The unlikelihood that he would do so is a further reason to reject his evidence, now, that he did do so.
  1. [202]
    In his submissions counsel for Mr Broadbent sought to rely upon s 379(2) and (3) of the Professional Standards Act.  Section 379(2) requires the Board, before entering into an undertaking, to advise a registrant about the consequences of failing to comply with the undertaking.  It was said for Mr Broadbent that this was not done.
  1. [203]
    Section 379(3) provides that the undertaking must state the period for which it is in force, and that such period must not be more than three years. The period of Mr Broadbent’s undertaking is longer than three years; it is permanent.
  1. [204]
    The submission is misconceived. Section 379(1) expressly states:

“Sub-sections (2) and (3) apply if a registrant’s Board intends to enter into an undertaking with the registrant under this Act”.

  1. [205]
    Section 118(1)(c)(iv) permits a Board to enter into an undertaking with a registrant about the registrant’s conduct or practice following an investigation conducted by the Board. Section 299(2)(c) permits a Board to enter into an undertaking with a registrant about the registrant’s professional conduct or practice if the Board has decided, under s 298(1) that the registrant is impaired.
  1. [206]
    Mr Broadbent’s undertaking is not such an undertaking. He did not, as Mr Carlyle submitted, enter into an undertaking with the Board. Mr Broadbent gave the Tribunal the undertaking which the Tribunal required of him.
  1. [207]
    Citing as authority Williams v Spautz[166] Mr Carlyle submitted that the appeal to the Tribunal from the Board’s refusal of registration was not an abuse of process because Mr Broadbent was pursuing a legitimate purpose and was “merely asking to be reinstated a medical practitioner”.[167]  He submitted, by reference to what was said by the plurality at 526, that Mr Broadbent was not using the appeal proceedings “as a means of obtaining some advantage for which they are not designed”.[168]
  1. [208]
    However, as the plurality said at 522, the power of a court (or in this case Tribunal) to prevent an abuse of process “must extend to the prevention of an abuse of process resulting in oppression, even if the moving party has a prima facie case or must be assumed to have a prima facie case”.
  1. [209]
    At 529 their Honours adopted the test applied by Lord Denning in Goldsmith v Sperrings Limited [169] and by the English Court of Appeal in Metall & Rohstoff v Donaldson Inc[170] in which Slade LJ observed:

“[A] person alleging such an abuse must show that the predominant purpose of the other party in using the legal process has been one other than for which it was designed”.

  1. [210]
    It can be accepted that Mr Broadbent’s appeal has a purpose for which the law provides. Section 199 of the National Law provides for an appeal from a decision of a national Board to refuse to register a person. Indeed, the Board’s decision, as the National Law required,[171] informed Mr Broadbent that he may appeal against the decision. 
  1. [211]
    In this case, however, the legitimacy of that purpose must be considered in light of the undertaking. What Mr Broadbent seeks in his appeal is a review of a decision which he undertook never to ask the Board to make. Having asked the Board to make a decision in breach of his undertaking to the Tribunal, the Board made the only decision which was in keeping with the undertaking. By his appeal from that decision, Mr Broadbent now asks (indirectly) the Tribunal to relieve him of his undertaking to it, again something which he undertook never to do. He asks to be relieved of it by the Tribunal so as to facilitate a review by the Tribunal of the very decision of the Board which he undertook to the Tribunal never to ask the Board to make.
  1. [212]
    Analysed in this way, I am of the opinion that although the purpose of the appeal is one for which the law provides, in the circumstances of this case the purpose of Mr Broadbent’s appeal is not legitimate.
  1. [213]
    Even if the review of the Board’s decision not to grant him registration were a legitimate purpose of the appeal, the evidence overwhelmingly establishes that such is not the predominant purpose. The predominant purpose is clearly to re-agitate all of the matters which he has previously litigated in the Tribunal and the Court of Appeal (or at least has had the opportunity to do so) and has also attempted to re-litigate in other proceedings and various jurisdictions.
  1. [214]
    It is, without doubt, a collateral attack on the decisions of the Tribunal and the Court of Appeal. That this is so is evident also from all the material lodged by Mr Broadbent in support of his application for registration. It is also abundantly clear from the affidavit he has filed in these proceedings. One really needs look no further than the “simple terms” he promotes for releasing from his undertaking as he sets out at paragraph three of his affidavit. The vast majority of the matters he identifies there have nothing to do with his attaining registration as a medical practitioner as an end in itself. They are to do with a vindication of him contrary to the decisions of the Tribunal and the Court of Appeal.

Mr Broadbent makes further submissions

  1. [215]
    Following the hearing of this application in the Tribunal, Mr Broadbent has, on numerous occasions, filed further submissions.[172]  Although filed without permission, I have considered them.
  1. [216]
    The following is a non-exhaustive summary of issues raised by Mr Broadbent in his further submissions:
  • During 2015 the Royal Australian College of Surgeons convened an independent expert advisory group which found evidence of entrenched bullying and sexual harassment amongst fellows of the College.  Mr Broadbent contributed to the enquiry.  The College accepted the findings of the advisory group.  Sham peer review (a matter which Mr Broadbent has consistently claimed was at the centre of the Board’s case against him) has been used as a bar to advancement or as an avenue of destruction of arrival;
  • That in 2015 he was elected by secret ballot of fellows to the Management Committee of the medico-legal section of the College despite not having participated in College affairs “since being forced retirement from practice in 2008”.  He had co-founded the section in 1999.  This, he says, goes to his credit and standing in the surgical community;
  • During 2015 there were numerous enquiries into the workings of regulators, including the Board, and their dealings with registrants in which serious deficiencies in process and practice had been found;
  • During 2015 a number of high profile cases “exposed remarkably similar modus operandi to those employed firstly by QMB and then AHPRA (as detailed in my affidavit) against myself”;
  • Retired Judge The Honourable Geoffrey Davies QC publicly admonished the RACS for the “culture of protectionism (and its counterpart the professional assassination) by which unethical controlling of the advancement of individual surgeons is achieved”, which he says is supportive of the veracity of the facts and circumstances made in this affidavit;
  • The Australian Senate has a scheduled public inquiry into bullying in the medical profession (particularly the conduct of AHPRA and AMB), confirming, he says, the legitimacy of points made in his affidavit;
  • The independent exposure of bullying by the expert advisory group, particularly sham peer review goes to his credit;
  • His affidavit evidence in regard to lack of natural justice, due process and procedural fairness is substantiated by findings in other cases;
  • The misconceived submissions concerning s 379(2) and (3) of the Professional Standards Act were repeated;
  • That ss 125, 126 and 127 were not applied by the Board to his application for registration
  • [This submission is also misconceived as none of those sections apply to undertakings given to the Tribunal];
  • A subsequent decision on costs in another matter supports his previous contention that the Tribunal erred in its costs decision;
  • That the High Court of Australia had refused special leave to appeal from the judgment of the Federal Court of Australia which had allowed Mr Broadbent’s appeal from a judgment of the Federal Circuit Court of Australia that the Medical Board of Australia had no standing to bring bankruptcy proceedings against Mr Broadbent in respect of an alleged debt arising out of the Tribunal’s cost decision, the Medical Board of Australia not being the legal successor to the former Medical Board of Queensland.  Mr Broadbent submitted that the Board’s conduct in respect of costs was “representative of the malice and win at all costs mindset of the Board and its directors to its legal representatives – who carry out the acts of bullying and bastardry.”  This, he says, supports his contentions that the prosecution of him by the former Medical Board of Queensland “was flawed, as was the evidence advanced at the time, and that was also deliberately suppressed or not discovered”;
  • That the RACS had “back-peddled seriously” on implementing promised reform in respect of bullying conduct by fellows and had resisted or blocked many historical complaints.  As a concerned fellow and member of the Committee of the medico-legal specialist interest group Mr Broadbent had a duty to engage with the College and that as a consequence of his persistent and unwelcome approach to the Executive he was being subject to impeachment proceedings on the grounds that his agitating was damaging to the College and in which proceedings the College was raising his past and present issues with QCAT.  Mr Broadbent says that all the issues now raised by the College are a consequence of its having failed to discipline errant fellows who would engage in sham reviews which, I have observed has always been, and remains at the centre of Mr Broadbent’s complaints against the Medical Board of Queensland because, he says, such sham review was at the heart of the Board’s case against him;
  • That the report of a homicide investigation unit into his conduct, which occurred as a result of the review of cases conducted by a member of the senior criminal Bar as recommended by Mr Chesterman QC, had exonerated him from criminal conduct.  All the allegations investigated were based on the evidence given to the Tribunal by Dr Woods, which Mr Broadbent says were “shown during the Tribunal hearing to be based on false, exaggerated and non-existent facts.”
  • [In respect of this, I would simply observe that the fact that Mr Broadbent has been exonerated of any criminal conduct does not impeach the Tribunal’s reasons and findings that he engaged in unsatisfactory professional conduct];
  • That the jurisdiction of the Health Quality and Complaints Commission and the Medical Board of Queensland was to perform their tasks in the manner that the relevant statute demands and that their failure to do so was jurisdictional error “which renders the eventual results of those failures ultra vires and void in accordance with Kirk v Industrial Relations Commission”;[173]
  • The HQCC and the Medical Board “had sufficient information available to them to have the alternative and more likely correct diagnosis considered as the fundamental cause of Mrs MacLeod’s death as well as that of Mrs Pearce – information which was available at the time but which was negligently overlooked or discarded in breach of the statutory duties of the then HQCC and Medical Board”;
  • Mr Broadbent then seeks to recast numerous issues raised previously, including before the Tribunal, as a discarding of “the proper statutory process of arriving at the truth of the matters”, including during the hearing in the Tribunal, leading to the Tribunal committing error;
  • A “fresh diagnosis” of Mrs MacLeod suffering from Munchhausen’s Syndrome is advanced.
  1. [217]
    Although I have made some observations about some of these further submissions made by Mr Broadbent, it is unnecessary to address each of them. On this application it suffices to observe that they again further demonstrate that the predominant purpose of Mr Broadbent’s appeal is to comprehensively re-agitate all of the issues in the MacLeod and Pearce matters, again advancing his opinions as previously advocated with a view to having the Tribunal make findings contrary to its earlier findings.
  1. [218]
    The further submissions simply re-emphasise the collateral attack which Mr Broadbent seeks to make on the earlier decisions of the Tribunal and the Court of Appeal.

Conclusions on abuse of process and vexatious proceedings

  1. [219]
    Because the predominant purpose of the appeal is the re-litigation of the issues concerning the disciplinary proceedings relating to Mrs MacLeod and Mrs Pearce, with its inherent collateral attack on the earlier decisions of the Tribunal and the Court of Appeal, it is an abuse of process of the kind identified by Lord Diplock in Hunter v Chief Constable of the West Midlands Police, as referred to Greenwood J in His Honour’s judgment in the Federal Court proceedings.
  1. [220]
    It is an abuse of process of the kind identified by French CJ in Aon Risk Services Australia Ltd v ANU[174] when His Honour said:

“Abuse of process principles may be involved to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined.”

  1. [221]
    By his appeal, Mr Broadbent attempts to do both.
  1. [222]
    In my opinion the appeal is also vexatious. Whether it is so is a matter to be determined on the circumstances of the case and will include public policy considerations in the interests of justice.[175]
  1. [223]
    In Oceanic Sun Line Special Shipping Company Inc v Fay,[176] Deane J said:

“Vexatious should be understood as meaning productive of serious and unjustified trouble and harassment”.

  1. [224]
    The circumstances of this case are that Mr Broadbent seeks to require the Board to re-litigate matters heard and determined several years prior to his application for registration having undertaken, upon the requirement of the Tribunal that he do so, never to make such an application. On the basis of his undertaking so given, with the further undertaking that he would never seek to be relieved of the burden of it, the Board withdrew disciplinary proceedings in respect of another 11 patients. Thus, as a direct consequence of his undertaking, numerous disciplinary matters were not pursued against him to their conclusion.
  1. [225]
    The Tribunal did not, as Mr Broadbent asserts, decide not to impose a penalty upon him. To the contrary, the Tribunal decided to take disciplinary action in the form of requiring him to give the Tribunal the undertaking in that form. That is a substantial penalty.[177]  It is to be inferred that other substantial disciplinary action would have been taken against Mr Broadbent by the Tribunal had he not given the required undertaking.  The purposes of the disciplinary action included to protect the public and to maintain public confidence in the health profession.[178]
  1. [226]
    Public policy considerations and the interests of justice strongly favour this appeal being considered vexatious; and in my view it is.

Disposition

  1. [227]
    For those reasons, the appeal should be struck out pursuant to s 47 of the QCAT Act and I will so order.

Costs

  1. [228]
    The Board has applied for its costs. No submissions have been made on the issue.
  1. [229]
    The parties are to file any submissions which they wish to make on the issue of costs within 14 days of the publication of these reasons to the parties. Such submissions are to be limited to four pages.

Footnotes

[1] His Curriculum Vitae which was attached to his application for registration and which is Exhibit CTH-22 to the affidavit of Christine Houston filed 31 October 2014 discloses that he also practised elsewhere including Rhodesia.

[2] The Medical Board of Queensland was the local registration authority that had the function of registering persons as medical practitioners in Queensland before the commencement of the National Law on 1 June 2010, as defined by s 251 of the National Law.

[3] The Act’s name was subsequently changed to the Health Practitioners (Disciplinary Proceedings) Act 1999 on 20 May 2013; Health Practitioner Registration and Other Legislation Amendment Act 2013 (No.13); s 23; 2013 SL No 69 Item 1.

[4] Section 124(1)(a) Professional Standards Act.

[5] See the amended referral notices in respect of patients MacLeod and Pearce; Exhibits CTH-1 and CTH-2 to Ms Houston’s affidavit.

[6] See paragraph 1 of the Tribunal’s decision in Medical Board of Australia v Broadbent [2009] QHPT-13; Exhibit CTH-5 to Ms Houston’s affidavit.

[7] T-1-18 line 31.  The transcript records, “I have no [indistinct] of that” but, as is apparent from the response of the Tribunal the statement was that he had no knowledge of it.

[8] Medical Board of Australia v Broadbent [2010] QCAT 280 at [210].

[9] Medical Board of Australia v Broadbent [2010] QCAT 280 at [210].

[10] Ibid at [211].

[11] Section 240(1) Health Practitioners (Professional Standards) Act 1999.

[12] Section 241(1).

[13] T 1-17, line 26.

[14] Section 149(3)(b) QCAT Act.

[15] Broadbent v Medical Board of Australia [2010] QCA 352 at [5].

[16] Ibid at [8].

[17] Ibid at [9].

[18] Ibid at [10].

[19] Ibid at [11].

[20] Ibid at [11].

[21] Ibid at [12].

[22] Ibid at [13].

[23] Ibid at [14].

[24] Ibid at [16].

[25] Ibid [17].

[26] Ibid [24].

[27] Ibid at [25].

[28] Ibid at [33].

[29] Ibid at [38].

[30] Ibid.

[31] Ibid at [44].

[32] Ibid at [45] and [46].  See also the separate reasons of McMurdo J at [86].

[33] Ibid at [55].

[34] Ibid at [80].

[35] Ibid at [81].

[36] Ibid at [84].

[37] Exhibit CTH11 to Ms Houston’s affidavit.

[38] With many sub-paragraphs.

[39] Exhibit CTH14 to Ms Houston’s affidavit.

[40] Broadbent v Medical Board of Queensland [2011] FCA 980 at [4].

[41] Ibid at [6].

[42] Ibid at [60].

[43] Ibid at [56].

[44] Ibid at [212].

[45] [1981] 3 All ER 727 at 733.

[46] [2009] 240 CLR 319 at [147].

[47] Medical Board f Australia v Broadbent [2012] QCAT 120.

[48] Ibid at [3].

[49] Ibid at [6].

[50] Ibid at [13].

[51] Ibid at [14].

[52] Ibid at [23].

[53] Ibid at [24].

[54] Exhibit CTH 22 to the affidavit of Ms Houston.

[55] [1].

[56] [4] and [5].

[57] [7] and [8].

[58] [9].

[59] [12].

[60] ]14].

[61] [13].

[62] Page 1 of the complaint.

[63] Pages 1 – 2 of the complaint.

[64] Page 10, [30].

[65] [36].

[66] Pages 12 – 14.

[67] Pages 14 – 15.

[68] Pages 15 – 16.

[69] Pages 18 – 21.

[70] Pages 22 – 23.

[71] Page 23.

[72] Pages 23 – 24.

[73] The submission forms part of Exhibit CTH 22 to Ms Houston’s affidavit and is found at pages 704 to 714 of the exhibits to that affidavit.

[74] Page 1 of the Submission.

[75] A decision under s 241(d) requiring a registrant to enter into an undertaking is not a tribunal review decision amenable to review in the tribunal under Part 9 Division 4 of the Disciplinary Proceedings Act. It may be a decision amenable to re-opening under Part 7 Division 7 of the QCAT Act. Whether such a decision might be amenable to re-opening does not need to be resolved in this matter.

[76] Page 3.

[77] Page 3.

[78] Page 3.

[79] Page 3.

[80] Page 4.

[81] Page 4.

[82] Page 10.

[83] Pages 10 - 11.

[84] Page 11.

[85] Exhibit CTH 24 to Ms Houston’s affidavit.

[86] Page 1 – 2 of the submission.

[87] These include the Chesterman report to which I have already referred and which will be addressed later in these reasons.

[88] Page 3.

[89] Page 3.

[90] Page 15.

[91] Page 18.

[92] Pages 18 – 19.

[93] Page 20.

[94] As noted earlier, whether Mr Broadbent is able to apply to the Tribunal to be relieved of his undertaking is not a matter which is required to be resolved in this proceeding.

[95] Exhibit 1.

[96] Exhibit 2.

[97] Para 6.

[98] Para 9 and 10.

[99] Page 45 of the Report.

[100] Page 46 of the Report.

[101] Page 47 of the Report.

[102] Page 74 of the Report.

[103] [28].

[104] [26].

[105] [27].

[106] [29].

[107] [38].

[108] [39].

[109] [42].

[110] Which he suggests was that no penalty at all was justified.

[111] [46].  It is to be noted that the judgment of Fraser JA in the Court of Appeal at paragraph two refers to it being a submission made for the applicant that the appropriate penalty was to require him to give an undertaking.

[112] [46].

[113] [47].

[114] Submission at page 19.

[115] Affidavit [56].

[116] [48].

[117] [49].

[118] Paragraph 5.

[119] Paragraph 52.

[120] Paragraph 57.

[121] Paragraph 58.

[122] Paragraph 59.

[123] Paragraph 65.

[124] Paragraph 65.

[125] Paragraph 66.

[126] Paragraph 81.

[127] Paragraph 84.

[128] Paragraph 88.

[129] Paragraph 91.

[130] Paragraph, p 47.

[131] Paragraph 99.

[132] Paragraph 41.

[133] Page 1, para 1.

[134] Page 1, para 3.

[135] Paragraph 4.

[136] Paragraph 5.

[137] Paragraph 6.

[138] Paragraph 9.

[139] Paragraph 10.

[140] Paragraph 13.

[141] Paragraph 13.

[142] Paragraph 45.

[143] Paragraphs, 63, 107-110.

[144] Paragraphs 118-162.

[145] Pages 25-36, para 163.

[146] Paragraphs 164-168.

[147] Paragraphs 217-221.

[148] Paragraph 219.

[149] Paragraph 224.

[150] Paragraphs 253, 259, 260, 261, 262, 265, 267, 269, 271 and 276.

[151] Paragraph 279.

[152] Paragraph 276.

[153] Paragraph 292.

[154] Paragraph 316.

[155] Paragraphs 320-333.

[156] Paragraph 327.

[157] Paragraph 365.

[158] The Tribunal actually used the expression “steering the ship” adopting the words of Professor Woods; [2010] QCAT 280 at [106].

[159] Paragraph 476.

[160] Paragraph 572.

[161] The reasons why he was aggrieved by the decision and his grounds of review in the Supreme Court proceedings are contained in Cth 11 to Ms Houston’s affidavit as set out above.  Paragraph [49] of the Federal Court’s judgment (Cth 14) identifies that the application to that court was identical to the Supreme Court application.

[162] Page 10 of that document which forms part of CTH 22 to Ms Houston’s affidavit.

[163] Exhibit CTH 29 to Ms Houston’s affidavit.

[164] CTH 30.

[165] QCAT is established as a court of record (s 164 QCAT Act) and is a Court of the State under s 77(iii) of the Commonwealth Constitution: Owen v Menzies [2012] QCA 170.

[166] (1992) 174 CLR 509.

[167] T 1 – 26, l 13.

[168] T 1 – 26, ll 1-12.

[169] [1973] 1 WLR at 496.

[170] [1990] 1 QB at 469.

[171] S 84(2)(b).

[172] 10 February 2016: 13 July 2016: 18 July 2016: 26 July 2016: 18 August 2016: 10 February 2017: 18 April 2017: 2 May 2017.

[173] (2010) 239 CLR 531.

[174] (2009) 239 CLR 175 at [33].

[175] Mudie v Grain River Pty Ltd (No. 2) [2003] 2 Qd R 271 at [37] per McMurdo P and Atkinson J.

[176] (1988) 165 1 CLR 197 at 247.

[177] Fraser JA in the Court of Appeal referred to his as penalty at [2] of His Honour’s reasons.

[178] Section 123(a)(c) of the Professional Standards Act.

Close

Editorial Notes

  • Published Case Name:

    Broadbent v Medical Board of Australia

  • Shortened Case Name:

    Broadbent v Medical Board of Australia

  • MNC:

    [2018] QCAT 25

  • Court:

    QCAT

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    16 Feb 2018

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC No 8399 of 2008 (no citation)05 Sep 2008Dr Broadbent applied for judicial review of Medical Board's pending decision to suspend him from practice as a medical practitioner; where no decision had been made; application dismissed: Philippides J
Primary Judgment[2009] QHPT 1307 Sep 2009Dr Broadbent applied for permanent stay or dismissal of thirteen referral notices upon the giving of an undertaking not to practice medicine in Australia; application dismissed: Wall QC DCJ
Primary Judgment[2010] QCAT 28010 Jun 2010Hearing of two amended referral notices; finding of two instances of unsatisfactory professional conduct against Dr Broadbent: Wall QC DCJ assisted by Dr P Richardson, Dr G Powell and Ms G Bolland
Primary Judgment[2010] QCAT 48802 Sep 2010Penalty hearing regarding unsatisfactory professional conduct found in [2010] QCAT 280; undertaking given by Dr Broadbent to retire permanently from medical practice and not to reapply within Australia: Wall QC DCJ assisted by Dr P Richardson, Dr G Powell and Ms G Bolland
Primary Judgment[2010] QCAT 50722 Oct 2010Medical Board applied its costs of the proceeding; Dr Broadbent ordered to pay 70% of the costs of the hearing: Wall QC DCJ assisted by Dr P Richardson, Dr G Powell and Ms G Bolland
Primary Judgment[2011] FCA 980 195 FCR 438; 282 ALR 96; 123 ALD 28025 Aug 2011Dr Broadbent applied for judicial review of [2010] QCAT 280; where no ground of jurisdiction identified; application dismissed with indemnity costs: Greenwood J
Primary Judgment[2012] QCAT 12022 Mar 2012Following appeal process of [2010] QCAT 280, QCAT gave leave to Medical Board to withdraw remaining 11 referral notices; Dr Broadbent applied for costs of those referrals; parties to bear their own costs: Kingham DCJ Deputy President
Primary Judgment[2014] FCCA 140629 May 2014Dr Broadbent applied to set aside Bankruptcy Notice founded on costs order in [2010] QCAT 507, contending that Medical Board of Australia was not the proper creditor because it did not exist at that time; application dismissed: Burnett J
Primary JudgmentMedical Board of Australia (no citation or file number)10 Jun 2014Dr Broadbent applied to Medical Board for general registration as a medical practitioner; application refused as contrary to orders made in [2010] QCAT 488
Primary Judgment[2014] QCATA 32925 Nov 2014Dr Broadbent applied to "strike out" the directions of 24 October 2014 permitting the Medical Board to be legally represented; application dismissed: Horneman-Wren SC DCJ
Primary Judgment[2015] FCA 717 214 FCR 41915 Jul 2015Dr Broadbent appealed against [2014] FCCA 1406; where new grounds of appeal raised at hearing; leave granted to rely on new grounds, appeal allowed and bankruptcy orders set aside: Rangiah J
Primary Judgment[2018] QCAT 2516 Feb 2018Medical Board applied to strike out Dr Broadbent's appeal against its decision of 10 June 2014 refusing his registration; appeal found to be vexatious and an abuse of process and struck out: Horneman-Wren SC DCJ assisted by Dr M Humphrey, Dr D Evans and Mr K Dahl
Primary Judgment[2018] QCAT 40814 Dec 2018Medical Board applied for its costs of [2018] QCAT 25; costs ordered against Dr Broadbent on an indemnity basis: Horneman-Wren SC DCJ
QCA Interlocutory Judgment[2010] QCA 31109 Nov 2010Dr Broadbent applied for leave to appeal against [2010] QCAT 280; Medical Board of Queensland cross-applied for declarations that appeal had been compromised and sought disclosure of documents from Dr Broadbent; disclosure ordered: Fraser JA
Appeal Determined (QCA)[2010] QCA 35210 Dec 2010Hearing of Dr Broadbent's application for leave to appeal and Medical Board's application for declarations; Medical Board's application refused and application for leave to appeal dismissed with costs: Fraser and Chesterman JJA and PD McMurdo J
Appeal Determined (QCA)[2019] QCA 13916 Jul 2019Dr Broadbent applied for leave to appeal from [2018] QCAT 25 and to adduce further evidence on appeal; applications refused: Fraser and Philippides JJA and Bond J
Special Leave Refused (HCA)[2016] HCASL 2205 Apr 2016Medial Board applied for special leave to appeal against [2015] FCA 717; application dismissed with costs: Bell and Gageler JJ
Special Leave Refused (HCA)[2019] HCASL 30810 Oct 2019Dr Broadbent applied for an extension of time in which to seek special leave to appeal against [2019] QCA 139; application dismissed: Nettle and Gordon JJ

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
1 citation
Jump To
Cite 1 - (2009) 239 CLR 175
Broadbent v Medical Board of Queensland [2010] QCA 352
11 citations
Jump To
Cite 1 - [2010] QCA 352
Cite 2 - [2010] QCA 352
Cite 3 - [2010] QCA 352
Cite 4 - [2010] QCA 352
Cite 5 - [2010] QCA 352
Cite 6 - [2010] QCA 352
Cite 7 - [2010] QCA 352
Cite 8 - [2010] QCA 352
Cite 9 - [2010] QCA 352
Cite 10 - [2010] QCA 352
Cite 11 - [2010] QCA 352
Broadbent v Medical Board of Queensland [2011] FCA 980
1 citation
Jump To
Cite 1 - [2011] FCA 980
Hunter v Chief Constable of West Midlands [1981] 3 All ER 727
1 citation
Jump To
Cite 1 - [1981] 3 All ER 727
International Finance Trust v NSW Crime Commission (2009) 240 CLR 319
1 citation
Jump To
Cite 1 - (2009) 240 CLR 319
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
1 citation
Jump To
Cite 1 - (2010) 239 CLR 531
Medical Board of Australia v Broadbent [2012] QCAT 120
1 citation
Jump To
Cite 1 - [2012] QCAT 120
Medical Board of Queensland v Broadbent [2010] QCAT 280
4 citations
Jump To
Cite 1 - [2010] QCAT 280
Cite 2 - [2010] QCAT 280
Cite 3 - [2010] QCAT 280
Cite 4 - [2010] QCAT 280
Mudie v Gainriver Pty Ltd[2003] 2 Qd R 271; [2002] QCA 546
1 citation
Jump To
Cite 1 - [2003] 2 Qd R 271
Mudie v Grain River Pty Ltd (No. 2) (1988) 1 CLR 197
1 citation
Jump To
Cite 1 - (1988) 1 CLR 197
Owen v Menzies[2013] 2 Qd R 327; [2012] QCA 170
1 citation
Jump To
Cite 1 - [2012] QCA 170
Williams v Spautz (1992) 174 CLR 509
1 citation
Jump To
Cite 1 - (1992) 174 CLR 509

Cases Citing

Case NameFull CitationFrequency
Broadbent v Medical Board of Australia [2019] QCA 13924 citations
1

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