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- Unreported Judgment
Health Ombudsman v Armstrong (No.2) QCAT 254
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Armstrong (No.2)  QCAT 254
MAREE JOSEPHINE ARMSTRONG
Occupational regulation matters
On the papers
Judge Sheridan DCJ
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where disciplinary proceedings brought against the practitioner – where an order made cancelling the practitioner's registration and imposing a two year disqualification period from re-applying for registration – where the Health Ombudsman made an application for costs – where the Tribunal’s power to award costs is conferred under the Queensland Civil and Administrative Tribunal Act 2009 – whether the interests of justice require the Tribunal to make an order as to costs
Health Ombudsman Act 2013 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 s 32, s 100, s 102
Health Ombudsman v Antley  QCAT 472, cited
Medical Board of Australia v Wong  QCAT 42, cited
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2)  QCAT 412, cited
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
- The Tribunal gave its substantive decision in the matter on 29 November 2018. The charges the subject of the referral related primarily to Ms Armstrong of having been convicted of Centrelink fraud. The second referral related to conduct in the Tribunal proceedings.
- Ms Armstrong was found to have behaved in a way that constituted professional misconduct and orders were made cancelling her registration and disqualifying her from re-applying for a period of 2 years from 14 January 2019.
- At the time of giving its decision, the Tribunal made directions for the filing by the Health Ombudsman of any application for costs and written submissions in support and allowing time for Ms Armstrong to respond.
- The Health Ombudsman filed written submissions seeking an order that Ms Armstrong pay the Health Ombudsman’s costs of the proceedings.
- Ms Armstrong did not file any written submissions in response. By email dated 15 January 2019, Ms Armstrong sent a completed Form 39 – Application for leave to Appeal or Appeal and Form 44 – Application to stay a Decision. By email dated 17 January 2019 from the office of the health Ombudsman to Ms Armstrong (copying in the registry of the Tribunal), Ms Armstrong was told that if she was seeking to appeal the Tribunal decision she would need to make application to the Court of Appeal and not through the Tribunal. It was recommended that she obtain independent legal advice.
- The Tribunal is not aware of any appeal filed in the Court of Appeal.
Approach to costs
- The position as to costs in disciplinary proceedings before the Tribunal is that provided for under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The starting position is that each party bears their own costs.
- Pursuant to s 102(1) of the QCAT Act, the Tribunal may make an order for costs if the Tribunal considers that the interest of justice require such an order. That gives the Tribunal a broad discretionary power.
- In deciding whether the interest of justice require an award of costs, s 102(3) of the QCAT Act identifies the matters which the Tribunal may have regard, including conduct necessarily causing disadvantage to 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’ point so compellingly to a costs award that they overcome the strong contra-indication against a costs order in s 100.
- The Court of Appeal in Medical Board of Australia v Wong, described s 102(3) as “a basis for departing from the default position” that there be no order as to costs.
- In making an application for costs, the Health Ombudsman submitted that the interests of justice require that Ms Armstrong be ordered to pay the costs of the Health Ombudsman. The Health Ombudsman referred in particular to the nature and complexity of the dispute, the relative strengths of the parties’ claims, the parties’ financial circumstances and the conduct of Ms Armstrong during the proceedings.
- It is the conduct of Ms Armstrong during the proceedings which is of particular relevance. In the submissions, the Ombudsman referred to following matters:
- (a)Ms Armstrong significantly increased the complexity of the proceedings by raising a preliminary point;
- (b)Ms Armstrong increased the costs by maintaining an untenable denial of the charges in the face of overwhelming evidence;
- (c)Ms Armstrong increased the length of the proceeding, including by failing to file material on time and failing to attend a compulsory conference without excuse; and
- (d)Ms Armstrong filed a false medical certificate in the Tribunal to support her failure to attend the compulsory conference, which resulted in an additional charge.
- The Ombudsman refers to the parties having attended the Tribunal on more than 10 occasions over the almost two years the matter remained before the Tribunal. The Ombudsman submitted that level of attendance “is significantly higher than is required in a standard health disciplinary matter”.
- The directions made by the Tribunal give support to the Ombudsman’s submissions. Ms Armstrong frequently failed to comply with Tribunal directions. Even after a direction was made permitting the preliminary constitutional issue to be determined as a ‘preliminary point’, Ms Armstrong failed to comply with directions made for the filing of her submissions in support. Ultimately, as a result of Ms Armstrong’s non-compliance with the directions of the Tribunal, the preliminary point was determined as part of the substantive disciplinary proceedings.
- The preliminary point which Ms Armstrong sough to have determined was “[w]hether or not the Tribunal is properly constituted under the Constitution of Australia and whether the Tribunal has jurisdiction to hear and determine this proceeding.” As stated in the substantive decision, by the time of the oral hearing, her focus became the validity of the office of the Health Ombudsman under the Australian Constitution. The Tribunal found that her arguments demonstrated a “fundamental misunderstanding of the Commonwealth and State Constitutions” and it was said “can only be described as misguided and ill-informed.”
- Ms Armstrong’s focus on that issue completely impacted her engagement in the disciplinary proceedings. That approach was unfortunate, given that the charges the subject of the initial disciplinary referral arose from criminal charges to which she had pleaded guilty and Ms Armstrong did not seek to challenge the record of the criminal proceedings; though at the oral hearing maintained her innocence and sought to blame others, in particular Queensland Health and its payroll system, her evidence was not accepted.
- Her conduct in the initial proceedings led to the filing of the second referral; it being alleged Ms Armstrong had falsified a medical certificate for the purpose of vacating the compulsory conference which had been set down in the initial proceedings. Despite strong evidence as to its falsity, Ms Armstrong continued her denial right up until the oral hearing; accepting at the hearing its falsity and admitting that what she did was wrong.
- The Tribunal accepts that the approach taken by Ms Armstrong significantly increased the complexity of the matter, increased the accrual of costs, including costs associated with a number of unnecessary appearances before the Tribunal and costs associated with the preparation of the matter for hearing, and increased the length of the hearing. Her conduct caused significant delay in the matter proceeding to a hearing, thereby adding to the costs. Her conduct in relation to the falsification of that certificate was indicative of the levels of deception.
- The Tribunal is aware of the consequence of the orders made and aware that Ms Armstrong has had a series of unfortunate life events. However, the approach of Ms Armstrong in these proceedings was difficult throughout and appeared guided by a desire to frustrate the disciplinary process. Her conduct was such as would require, in the interests of justice, the making of a costs order.
- Given her conduct, the Tribunal does not consider this is a matter which would justify the Tribunal limiting the award of costs in any respect. The factors favouring an order limiting costs, as referred to by Judicial Member Thomas in Health Ombudsman v Antley, must be considered in the context of the facts of a particular case.
- It would, however, be appropriate that Ms Armstrong be given time to pay.
- Accordingly, the Tribunal orders that:
- Ms Armstrong is to pay the Health Ombudsman’s costs of and incidental to these proceedings to be agreed, or failing agreement, to be assessed on a standard basis on the District Court scale.
- If not agreed, the costs shall be assessed by an assessor agreed between the parties and, in default of agreement, appointed by the Tribunal.
- Ms Armstrong shall pay the costs (as agreed or as assessed) within six months of such agreement or assessment, or such other time as may be agreed between the parties.
- Published Case Name:
Health Ombudsman v Maree Josephine Armstrong (No.2)
- Shortened Case Name:
Health Ombudsman v Armstrong (No.2)
 QCAT 254
06 Sep 2019