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- Unreported Judgment
Nowlan v Medical Board of Australia (No 1) QCAT 413
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Nowlan v Medical Board of Australia (No 1)  QCAT 413
medical board of australia
Occupational regulation matters
12 April 2019 (ex tempore)
12 April 2019
Judge Allen QC, Deputy President
The applicant’s application for a preliminary determination of a point of law is refused.
PROFESSION AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENSES AND REGISTRATION – APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION – where applicant appeals against a decision of the Medical Board of Australia to refuse the applicant’s application for provisional registration as a medical practitioner
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant seeks a preliminary ruling on a point of law – whether s 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) empowers the Tribunal to grant the declaratory relief sought by the applicant – whether it would be appropriate to determine the point of law by way of a preliminary hearing
Health Practitioner Regulation National Law (Queensland), s 53, s 62
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 60
M Lucey of Clayton Utz
REASONS FOR DECISION
- Mr Nowlan has made application to the Tribunal to review the decision of the Medical Board of Australia (“the Board”) to refuse him provisional registration as a medical practitioner.
- The applicant, Mr Nowlan, seeks that a discrete question of law be determined by the Tribunal before any other steps are taken in the matter and submits that that may mean that the usual steps, requiring filing of material and compulsory conference, may be rendered unnecessary, depending upon the Tribunal’s ruling on the question of law.
- Mr Nowlan submits that the Tribunal has power, pursuant to section 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), to make a declaration as to such a matter of law, and, depending upon its ruling, invite the Board to reconsider its decision.
- That question of law relates to the proper construction of s 62(2) of the Health Practitioner Regulation National Law (Queensland) (“National Law”), insofar as it relates to Mr Nowlan’s application for provisional registration, and the effect of the decision of the Court of Appeal in Chinese Medicine Board of Australia v Lee  QCA 149. Mr Nowlan frames the question of law as one whether the Board has a discretion to grant him provisional registration, notwithstanding he does not hold a “qualification” as referred to in s 53 and s 62(1) of the National Law.
- The Board opposes such proposed course, arguing that the question of law cannot be considered divorced from its factual context and that the Tribunal should be properly informed by the further material that would be filed by both parties. The Board submits that there is a factual dispute as to the extent of the academic achievement pointed to by the applicant as justifying his provisional registration, despite the absence of a degree. The Board submits that a resolution of a question as to whether, in fact, the Board has the discretion contended for by the applicant, would not resolve the matter, because there is a very real dispute as to whether, in fact, if it exists, such discretion should be exercised. The Board submits that, now the application to review the decision has been made, the Tribunal is required, pursuant to section 20 of the QCAT Act, to hear the matter de novo to make the correct and preferable decision after a fresh hearing on the merits.
- Section 60 of the QCAT Act provides, in sub-section (1), that the Tribunal may make a declaration about a matter in a proceeding: (a) instead of making an order it could make about the matter; or (b) in addition to an order an order it could make about the matter. In my view, s 60 provides a power to the Tribunal to make a declaration about a matter in a proceeding by way of ancillary relief as an alternative to making an order or in addition to making an order. I am not convinced that it provides a separate means of relief of the nature sought by the applicant. It seems to me that the Tribunal, being a creature of statute, has limited jurisdiction and, in this matter, its jurisdiction is to be exercised according to s 20 of the QCAT Act, sub-section (2) of which provides:
The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.
- I am not convinced that the Tribunal has jurisdiction to proceed in the way contended for by the applicant. In any event, assuming that it did have such jurisdiction, I would not be prepared to proceed on the way contended for by the applicant. It seems to me that the question of law cannot be properly divorced from its factual context and, if the Tribunal was to proceed in the way contended for by the applicant, it is unlikely to be able to answer the question of law in the absence of the full material that is to provide that factual context. To proceed in the way contended for by the applicant is not likely to save time and resources of the parties or the Tribunal, but has a real potential to waste them.
- In my view, the Tribunal is bound to, or should proceed to, exercise its jurisdiction according to section 20 of the QCAT Act, which means that there will be a hearing de novo in which the Tribunal will consider whether the applicant’s application for provisional registration should be granted and, in the course of doing so, will consider the application of the Court of Appeal decision in Lee.
- Published Case Name:
Nowlan v Medical Board of Australia (No 1)
- Shortened Case Name:
Nowlan v Medical Board of Australia (No 1)
 QCAT 413
Deputy President Allen QC
12 Apr 2019