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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Peters v Medical Board of Australia (No 2)  QCAT 222
medical board of australia
Occupational regulation matters
15 July 2020
On the papers
Judicial Member Robertson
Each party bears their own costs for the proceeding
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – COSTS – where Tribunal set aside immediate action order made by the respondent – where matter adjourned for issue of costs – where applicant argues the respondent has not acted as a model litigant – where respondent argues there is nothing in the matter that justifies a departure from the usual order – where parties to bear their own costs – where interests of justice do not require a costs order.
Health Practitioner Regulation National Law (Queensland) 2009 s 156
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48, s 100, s 102
Chiappalone v Medical Board of Australia  QCAT 201
Tracey v Olinderidge Pty Ltd & Wagner  QCAT 7
Medical Board of Australia v Wong  QCA 42
Nursing and Midwifery Board of Australia v Bates (No. 2)  QCAT 102
REASONS FOR DECISION
- On the 11th June 2020, I made an order setting aside an immediate action order made by the Respondent Board on the 25th February 2020. I adjourned the issue of costs to enable the parties to file written submissions. The Board’s submission was filed first on the 15th June followed by the applicant’s submission also filed that day. The applicant seeks his costs of the proceedings from the Board and the Board submits that the usual order should be made, that is, that each party pays its own costs. I have proceeded on the basis that if either party disputed any factual or legal argument made by the other on the issue of costs, it would have filed some form of reply.
The relevant statutory framework
- The power to order costs is governed by Chapter 2 Division 6 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), and relevantly to the present matter, sections 100 and 102 which are in the following terms:
100 Each party usually bears own costs
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.
102 Costs against party in interests of justice
(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 to the proceeding if the tribunal considers the interests of justice require it to make the order.
(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
(b) the nature and complexity of the dispute the subject of the proceeding;
(c) the relative strengths of the claims made by each of the parties to the proceeding;
(d) for a proceeding for the review of a reviewable decision—
(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and
(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
(e) the financial circumstances of the parties to the proceeding;
(f) anything else the tribunal considers relevant.
- Section 48(1) (a) to (g) are in the following terms:
48 Dismissing, striking out or deciding if party causing disadvantage
(1) This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
(a) not complying with a tribunal order or direction without reasonable excuse; or
(b) not complying with this Act, an enabling Act or the rules; or
(c) asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or
(d) causing an adjournment; or
(e) attempting to deceive another party or the tribunal; or
(f) vexatiously conducting the proceeding; or
(g) failing to attend conciliation, mediation or the hearing of the proceeding without reasonable excuse.
The Applicants’ Arguments
- As the applicant correctly observes, the section 102(3) matters are not grounds for awarding costs, rather, they are factors to be taken into account in considering whether, in the exercise of discretion, the interests of justice require the making of a costs order.
- The applicant argues that the Board has not acted as a model litigant, as a result of a number of findings in the primary judgement to the effect that the Board’s approach to the proceedings was litigious and adversarial. In the same vein, he argues that the Board has approached the proceeding by criticizing his case “to enable them to defend their original decision”.
- The applicant is particularly critical of the Board’s refusal to accept the chaperone condition imposed as a result of a lawful direction given to him by his employer, on the basis of its reliance on a report not contained in its material but raised by its lawyers in its trial submission which contained an exception which the Tribunal applied in this case, which could have ensured that “the proceedings could have been avoided entirely.”
- He further argues that upon receipt of the “fresh” material (including his affidavit sworn 11th May), the Board should have, at the very least, adopted a neutral position, or reconsidered its immediate action decision.
- He argues, by reference to Chiappalone v Medical Board of Australia, by analogy, that even if JJK’s allegations had been accepted in their entirety, that still did not justify the Board taking immediate action pursuant to section 156. By reference to comments in the primary judgment, he submits that the Board’s conditions on its decision were punitive, and, by implication, the Board has acted unreasonably.
- He submits that he has done everything within his power to satisfy the requirements of the Board in the proceeding, only to be met with an uncompromising attitude from the Board.
The Board’s Submission
- The Board argues that there is nothing in the matter that justifies a departure from the usual order. It submits, by reference to Tracey v Olinderidge Pty Ltd & Wagner , that there are no disadvantaging features (as set out in section 102(3) (a) of the QCAT Act) in this matter, by reference to the way in which the Board has conducted itself. By reference to Nursing and Midwifery Board of Australia v Bates (No. 2), where the Tribunal referred to and applied Medical Board of Australia v Wong  QCA 42, which the Board describes as the current binding authority in relation to proceedings under the National Law in relation to costs, it submits that despite the Tribunal coming to a different view, that does not mean that the Board has acted unreasonably, and the mere lack of success will not ordinarily, without more, establish unreasonableness and enliven the discretion to order costs in the interest of justice. This, the Board argues, by reference to Philip McMurdo JA’s judgment in Wong (with whom Morrison JA and Mullins J agreed), is because of the statutory responsibility placed on the Board to protect public health and safety.
- As to section 102 (3)(b)-(f) discretionary matters, it argues that the formation of a “reasonable belief” under section 156 of the National Law, “necessarily involves an evaluative judgment on which reasonable minds may differ.”
- In this regard, the Board refers to observations in the primary judgment to the fact that it was not possible to determine what the facts are where JJK and the applicant diverge at this stage of the proceedings. At  I observed:
“I do not agree with (Dr Peters) lawyer’s suggestion, that her account (i.e. JJK) of what occurred is not in itself suggestive of sexual interest. If her account was accepted (after proper testing), the conduct clearly involved sexualized boundary violations and/or non-consensual sexual touching.”
- The Board submits that, in the conduct of the proceedings, it has done everything to expedite the hearing, including agreeing to a truncation of timelines directed by the Tribunal and did not put on extra evidence or endeavour to otherwise prolong the proceedings. It submits that the matter is not complex factually or legally.
- By reference to section 102(3)(e) of the QCAT Act, the Board submits that the applicant was well resourced having the backing of an indemnity insurer and “sophisticated” litigators and two counsel as opposed to the Board which did not brief counsel.
- In relation to the section 48(1) matters, I do not understand the applicant to be submitting that the Board has acted in any way to “unnecessarily disadvantages” him in the sense described in the cases.
- The Boards’ lawyers seem to have expected an argument from the applicant, that because the proceedings were by way of review pursuant to section 33 of the QCAT Act, therefore the proceedings are not “disciplinary proceedings”, and therefore the principles set out in Wong do not apply. Such an argument was not made, nor could it be sustained if it had been advanced. Clearly the decision of the Board to take immediate action pursuant to section 156 is part of its statutory role under Part 8 Division 7 of the National Law to protect public health and safety.
- In light of JJK’s allegations and the other evidence relating to the texts she sent to the applicant on the day of the consultation, the Board was entitled to proceed under section 156. It follows that, in accordance with Wong, the mere fact that the Board was unsuccessful in the Tribunal, without more, does not entitle the Tribunal to depart from the usual rule.
- As to discretionary matters, I make the following observations:
- (a)Although I did describe the Board’s approach as adversarial, I include the applicant’s submission in that observation. I agree with the Board’s submission that its approach in the circumstances of this case is not inconsistent with its statutory role. It has not acted unreasonably or capriciously in testing the applicant’s account when credit was at the heart of the proceeding. It was also necessary for the applicant to file a very late affidavit in relation to the storage of photographs of JJK on his phone, to correct an earlier sworn statement.
- (b)On a number of occasions (noted above) I observed that in what was primarily a contest of credit, it was impossible to determine the facts where the principal parties accounts varied, without a full hearing. If JJK’s account is accepted in full, then, as noted above, there are serious implications for the applicant. It is not a case where her account does not, on its own, raise matters of concern in relation to public health and safety.
- (c)In my view, there are no relevant matters arising under section 102(3) of such a nature as to persuade me to depart from the usual order.
- In those circumstances, the order of the Tribunal is that each party bear its own costs of the proceedings.
- Published Case Name:
Peters v Medical Board of Australia (No 2)
- Shortened Case Name:
Peters v Medical Board of Australia (No 2)
 QCAT 222
15 Jul 2020