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Medical Board of Australia v Jonsson QCAT 407
Medical Board of Australia v Jonsson (No.2)  QCAT 407
MEDICAL BOARD OF AUSTRALIA
DR CLARA ISABELLA JOHANNA JONSSON
Occupational Regulation Matters
On the papers
His Honour Judge Alexander Horneman-Wren SC, DCJ
14 December 2018
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – COSTS – where the applicant originally referred 7 charges to the Tribunal – where only 1 of those charges proceeded to a contested hearing – where discontinuance of other charges impacted the successful prosecution of the single contested charge – whether the applicant should receive an award for costs.
APPEARANCES AND REPRESENTATION:
Moray and Agnew Solicitors
Mr P Hastie QC instructed by Ashurst Australia
REASONS FOR DECISION
- The Referral by the Medical Board of Australia of disciplinary proceedings concerning Dr Jonsson was made pursuant to two separate pieces of legislation. There were seven charges referred. Charges 1 to 5 were referred pursuant to the Health Practitioner (Disciplinary Proceedings) Act 1999 (the Disciplinary Proceedings Act). Charges 6 and 7 were referred pursuant to the Health Practitioner Regulation National Law (National Law).
- The position as to costs differs in respect of matters referred under the Disciplinary Proceedings Act and the National Law. Under the former, s 255(1) permits the Tribunal to make any order about costs it considers appropriate. The latter, following the repeal of s 195 of the National Law with effect from 1 July 2014, itself makes no provision for costs. Accordingly, proceedings in the Tribunal referred under the National Law are governed by the costs provisions in the Queensland Civil and Administrative Tribunal Act 2009.
- The primary position established by s 100 of the QCAT Act is that each party to a proceeding must bear its own costs. Pursuant to s 102(1) the Tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party if the Tribunal considers the interests of justice require it to make the order. It prescribes, pursuant to s 102(3), certain matters to which the Tribunal may have regard in deciding whether to order one party to pay another’s costs.
- In this matter, the Board submits that the appropriate order in respect of the matters referred under the National Law is that each party bear its own costs. However, it seeks an order under s 255(1) of the Disciplinary Proceedings Act in respect of the matters referred to the Tribunal pursuant to that Act. Furthermore, it seeks as part of that order, pursuant to s 255(2)(b), that its costs of conducting an investigation of the registrant before referring the matter for hearing by the Tribunal be paid by Dr Jonsson. Those investigation costs total $27,649.05.
- Dr Jonsson submits that in respect of all matters referred it should be ordered that each party bear their own costs.
- The matter proceeded only as a contested hearing in respect of Charge 7 and in respect of what sanction should be imposed for admitted or proven conduct. In an Amended Response to Part C of the referral which was filed relatively early in the proceedings, Dr Jonsson had, in respect of Charges 1 to 6, not denied the allegations and stated that she did not require proof of certain of the particularised allegations. By the time the matter reached hearing, Dr Jonsson admitted the conduct as outlined in the then Further Amended Part C of the referral and admitted that such conduct amounted to unsatisfactory professional conduct in respect of the matters referred under the Disciplinary Proceedings Act, and unprofessional conduct in respect of Charge 6 which had been referred under the National Law. Therefore, much of the hearing was directed towards the contested Charge 7.
- Charge 7 was a serious allegation. Whilst Charge 6 had related to the disclosure of information by Dr Jonsson in breach of patient confidentiality, the allegation in Charge 7 was that she had done so to exert improper influence over the patient and/or her parents in an attempt to pervert the course of the disciplinary proceedings.
- Charge 1 of the referral related to a failure by Dr Jonsson to maintain appropriate professional boundaries and her engaging in an inappropriate personal relationship with the patient. Important to the consideration of the issue of costs is the fact that, as referred, the allegations against Dr Jonsson concerning that patient included that she entered into and maintained a sexual relationship with the patient. That allegation was not ultimately pursued by the Board. That the Board would not be pursuing that allegation was conveyed to the Tribunal in the Board’s submissions filed a week prior to the hearing and confirmed in the submissions for Dr Jonsson filed three days before the hearing.
- As the Tribunal’s earlier reasons demonstrate, the fact that the Board ultimately did not pursue an allegation of a sexual relationship between Dr Jonsson and the patient was a matter quite relevant to the Tribunal’s consideration of the allegations in Charge 7.
- The Board submits that the admission by Dr Jonsson of her conduct and that such conduct constituted unsatisfactory professional conduct is no basis, of itself, for not making an award of costs in the Board’s favour. That submission may be accepted. However, it does not mean that those admissions are not a relevant consideration for the Tribunal in it determining what it considers to be the appropriate order about costs for this particular disciplinary proceeding.
- The Board further submits that the fact that the Tribunal did not impose the sanction for which the Board had contended is also no basis for not making an award of costs in its favour. The Board points to the fact that its submission as to sanction was based on it succeeding in respect of the totality of the matters referred under both legislative schemes, including Charge 7. Again, it may be accepted that the fact that the sanction submitted for by the Board was not ordered does not, of itself, provide reason not to award the Board its costs. However, that fact also remains a relevant consideration in determining the appropriate costs order for the proceeding. As the Board’s submission itself recognises, its submission on sanction was very much linked to its success in regard to Charge 7. It did not succeed in establishing Charge 7 for reasons including that the allegation of a sexual relationship itself had not been pursued, whereas the existence of such a relationship was relevant also to the allegations made in Charge 7.
- The Board submits that it is entirely funded by registration fees paid by its registrants and therefore has limited resources. The fact that it was entirely funded by registration fees was contested by Dr Jonsson on the basis that s 209 of the National Law identifies other sources of income, including Commonwealth appropriations which may be made into the Australian Health Practitioner Regulation Agency Fund from which the costs were payable. The Board put on further submissions and evidence in that regard. That evidence establishes that whilst registration fees are not the sole source of income, they are by far the predominant source.
- Dr Jonsson also referred to the decision of the Tribunal in Health Ombudsman v Lantley where the Honourable Jim Thomas AM QC had observed:
“… the law, practice and circumstances have changed so substantially that I do not think that professional boards should any longer be regarded as in a favoured position vis a vis a practitioner when costs issues are to be decided.”
- In my view, there is much to commend the view expressed by the learned Judicial Member. However, it is unnecessary to consider those issues further in determining this matter.
- I am of the view that taking into account the fact that Dr Jonsson succeeded in the most contested part of the proceedings and that she is not to have her costs in respect of that matter, and that the other most contentious part of the proceedings, being the existence of a sexual relationship between her and the patient, was ultimately not pursued, taken with her early admissions in respect of the other Charges, the appropriate order under s 255(1) is that each party bear its own costs.
- In coming to that conclusion, I do not accept the submission contained in paragraph 14 of the Board’s submissions filed on 9 October 2017 that having brought these proceedings pursuant to its statutory functions to protect the public and the reputation of the profession it should “in the absence of special circumstances justifying some other order” be awarded its costs. There is no presumption for an award of costs in favour of a professional board pursuant to s 255(1) of the Disciplinary Proceedings Act. Nor is there any requirement for special circumstances justifying some other order to be established by a registrant.
- In reaching that conclusion I have also considered that the Board sought, as part of a costs order, its costs of investigation. Whilst the affidavit material filed in support of that aspect of a costs order identifies the costs incurred by the Board, it having engaged external investigators, what is not identified is to what issues those investigations were directed. Given that the referral contained the allegations concerning Dr Jonsson engaging in a sexual relationship with the client, which were not pursued, one would readily infer that the investigation would have been directed, to a considerable extent, to that issue. So too the investigation may have been directed to Charge 7 in respect of which the Board has been unsuccessful.
- In those circumstances, the fact that the Board has incurred those investigation costs does not lead me to a conclusion that the appropriate order is one that Dr Jonsson pays its costs.
- The order of the Tribunal will be that each party bears its own costs of the proceedings.
  QCAT 472 at .
- Published Case Name:
Medical Board of Australia v Dr Clara Isabella Johanna Jonsson
- Shortened Case Name:
Medical Board of Australia v Jonsson
 QCAT 407
Horneman-Wren SC DCJ
14 Dec 2018