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- Unreported Judgment
Health Ombudsman v Barber (No.2) QCAT 252
QUEENSLAND CIVIL AND
Health Ombudsman v Barber (No.2)  QCAT 252
JAMIE BENJAMIN BARBER
Occupational regulation matters
4 September 2019
On the papers
There be no order as to costs.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the matter proceeded before the Tribunal by way of agreed statement of facts – where practitioner accepted categorisation of conduct – where practitioner made an offer to the Health Ombudsman as to sanction – where Tribunal imposed a sanction similar to that offered by practitioner – whether conduct of Health Ombudsman justified the making of a costs order
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 102, s 105,
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 86
Uniform Civil Procedure Rules 1999 (Qld)
Health Ombudsman v Antley  QCAT 472, cited
Medical Board of Australia v Wong  QCA 42, cited
Ralocom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2)  QCAT 412, cited
S Lane for the Health Ombudsman
C Massy instructed by Hall Payne Lawyers
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
- The Tribunal gave its substantive decision in the matter on 19 April 2017. At the time of making its decision, the Tribunal requested the parties make written submissions as to the question of costs.
Power to award costs
- Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters that it may have regard to in considering whether the interests of justice require a costs order, including conduct necessarily disadvantaging another party, the nature and complexity of the dispute, the relative strengths of the claims made by each party, the financial circumstances of the parties and anything else the Tribunal considers relevant.
- The question for the Tribunal has been formulated as:
… whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ points so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.
- The Health Ombudsman initially indicated that a costs order would be sought. It was said that this was the usual order made in a disciplinary referral properly brought in which the Tribunal has made a finding of misconduct. In its further written submissions as to costs, the Health Ombudsman submitted that “Having had the benefit of considering the respondent’s outline of submissions filed 24 March 2017, and oral argument during the hearing on 19 April 2017, the applicant withdraws that submission.” It was submitted that, “there are factors particular to the respondent’s conduct and his response to this proceeding that, taken together, lead to the conclusion that the usual position in respect of costs under the QCAT Act should not be departed from.”
- On behalf of Mr Barber, it was submitted that:
- The conduct of the Health Ombudsman on and from 22 September 2016 was sufficiently unreasonable so as to amount to a countervailing factor for the purposes of s 102 of the QCAT Act; and
- Pursuant to s 105 of the QCAT Act and r 86 of the QCAT Rules, the Tribunal is entitled to award costs because of the applicant’s failure to accept the respondent’s offer made on 22 September 2016.
Effect of offer
- On 22 September 2016, a letter was sent to the Health Ombudsman on behalf of Mr Barber. After canvassing the history of the matter and making reference to comparative case authorities, it was said:
In light of the forgoing matters, we are instructed to offer the following sanction:
- A reprimand; and
- Formal education as to the nexus between professional obligations and personal behaviour.
- The letter stated, “Should this matter continue to hearing we will rely on this correspondence and provide this correspondence for consideration by the Queensland Civil and Administrative Tribunal in relation to question of costs.”
- In the submissions filed in support of costs, it was said the offer was broadly consistent with the decision of the Tribunal and had been supported by detailed submissions. It was submitted that if the offer had been accepted, the need for a contested hearing and all associated costs would have been avoided. It was accepted by Mr Barber that the imposition of discipline was ultimately a matter for the Tribunal, but it was submitted “given the agreement of the parties and the ultimate decision reached by the Tribunal, it is difficult to see how a contested hearing would have been required.”
- It was submitted that the merits of the proposal were put to the Health Ombudsman on two occasions and despite that, the Ombudsman pressed its claim for a suspension, which it was said necessitated a contested hearing. It was said, the conduct by the Ombudsman “demonstrates an unwillingness to properly consider and assess the merits of the case.”
- Mr Barber accepted that the proceedings were properly commenced and did not seek costs on the basis that the matter should not have been commenced.
Effect of s 105 and r 86
- It was submitted that s 105 of the QCAT Act was a further exception to the position in s 100 and provides an alternative basis on which the Tribunal may make an order for costs. It was submitted an order can be made under s 105 and r 86 of the QCAT Rules, irrespective of whether there is considered to be a basis for the making of an order under s 102 of the QCAT Act.
- By way of reply, in referring to s 105 and r 86, the Ombudsman submitted that those provisions are not applicable in a disciplinary proceeding “as a disciplinary referral is not capable of being settled in the same way as a civil proceeding.” It is not the kind of dispute referred to in s 105 of the QCAT Act.
- In addressing the submission that the Ombudsman’s conduct was unreasonable, the Ombudsman referred to the matter having proceeded by way of an agreed statement of facts and referred to the references in that document and in submissions evidencing the acceptance by the Ombudsman of a number of assertions made on behalf of the respondent. In particular, the Ombudsman referred to correspondence in which the Ombudsman had suggested, given the position reached, the matter could now proceed before the Tribunal by way of by way of a hearing on the papers, without the need for an oral hearing. In response, the respondent confirmed that he wished the matter to proceed to an oral hearing. It was said there was an advantage to an oral hearing “that would enable the Tribunal to ask questions and receive answers to these questions in relation to matters of importance.”
- Given the misconduct by Mr Barber and the finding of professional misconduct, which was admitted, there can be no doubt that the proceedings were properly commenced. Further, as acknowledged by Mr Barber, the imposition of disciplinary orders was ultimately a matter for the Tribunal, even where the parties have reached an agreed position.
- Given the disciplinary nature of the proceedings, even if the parties were agreed, my preferred position was that the matter proceed before the Tribunal by way of oral hearing. As was commented by the respondent, an oral hearing enabled the Tribunal to ask questions and receive answers to matters of importance. It is my view that the attendance of the practitioner before the Tribunal generally adds to the formality of the proceedings.
- Whilst the Tribunal did not accept the submission of the Health Ombudsman as to sanction, the conduct of the Ombudsman should not be regarded as sufficiently unreasonable as to amount to a countervailing factor; or said another way, as to be a basis for departing from the default position.
- In those circumstances, the Tribunal is not satisfied that it is required in the interests of justice to make a costs order under s 102 of the QCAT Act.
- The Tribunal does not consider that s 105 of the QCAT Act (together with r 86) can be used as the basis for the making of a costs order in disciplinary proceedings. Section 105 provides:
The rules may authorise the tribunal to award costs in other circumstances, including, for example, the payment of costs in a proceeding if an offer to settle the dispute the subject of the proceeding has been made but not accepted.
- Rule 86 provides:
- This rule applies if –
- a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and
- the other party does not accept the offer within the time the offer is open; and
- in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.
- The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.
- If a proceeding involves more than two parties this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties.
- In deciding whether a decision is or a is not more favourable to a party than an offer, the tribunal must –
- take into account any costs it would have awarded on the date the offer was given to the other party;
- disregard any interests or costs it awarded relating to any period after the date the offer was given to the other party.
- These provisions are similar to the provisions contained within Chapter 9, Part 5 of the Uniform Civil Procedure Rules 1999 (Qld) which are designed to facilitate the early resolution of civil proceedings.
- That r 86 is directed towards the proceedings in the nature of civil proceedings is apparent by the use of the word ‘dispute’. That word is not apt to describe proceedings by a regulatory body in the public interest against a practitioner for the protection of the public. Neither is the use of the word ‘settle’. Even if an agreed position is reached as to the facts or even sanction, the ultimate result must be determined by the Tribunal. A proceeding by a regulatory body is not usually regarded as one which could be ‘settled’. The concept of an order which is more favourable to the other party is also not apt to describe the situation of a statutory regulator.
- Obviously, even in disciplinary proceedings, the parties should be encouraged to limit the issues in dispute and resolve, as far as possible, the matters in issue in the proceedings, and the conduct of both parties in the course of those proceedings may be relevant to the discretion to award costs under s 102. Those matters do not, however, require that a statutory provision designed to settle civil proceedings between different parties should apply to disciplinary proceedings brought in the public interest and for the protection of the public, and where the ultimate result, even if agreed, is not one dictated by the parties, but subject to the approval of the tribunal.
- Even if s 105 and r 86 applied, the Tribunal is not required to award costs to the party who made the offer. Rule 86(2) leaves the matter in the discretion of the Tribunal. The ‘offer’ (if it can be so described) was close to the order made by the Tribunal as to sanction, though the letter did not contain an admission that the conduct amounted to professional misconduct. The ‘offer’ was not, however, so much ‘more favourable’ that would justify, in any event, the exercise of the power under s 105.
- In the circumstances, there should be no order as to costs.
 QCAT Act, s 102.
 Ralocom Pty Ltd v Body Corporate for Paradise Island Apartments (No.2)  QCAT 412.
 Ibid, .
  QCA 42, .
  QCAT 472.
 Submissions filed on behalf of the health Ombudsman dated 10 March 2017.
 Queensland Civil and Administrative Tribunal Rules 2009.
 HO Act, s 107.
- Published Case Name:
Health Ombudsman v Barber (No.2)
- Shortened Case Name:
Health Ombudsman v Barber (No.2)
 QCAT 252
04 Sep 2019