Health Ombudsman v Raynor (No 2)
[2021] QCAT 128
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- Unreported Judgment
- Health Ombudsman v Raynor (No 2)[2021] QCAT 128
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Health Ombudsman v Raynor (No 2)[2021] QCAT 128
Health Ombudsman v Raynor (No 2)[2021] QCAT 128
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Raynor (No 2) [2021] QCAT 128 |
PARTIES: | DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN (applicant) v BRANDON RAYNOR (respondent) |
APPLICATION NO/S: | OCR091-19 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 10 May 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: | Order that the respondent pay part of the costs of the applicant of and incidental to this proceeding, fixed in the sum of $3,000, such sum to be paid within twenty-eight days from the date of this decision. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – regulation of health service providers – application for prohibition order – application resisted but successful – approach to costs orders for disciplinary proceedings – whether the interests of justice require an order for costs – aspects of respondent’s resistance unreasonable – order for fixed, limited costs made Health Ombudsman Act 2013 (Qld) s 113 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102 Health Ombudsman v Antley [2016] QCAT 472 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Medical Board of Australia v Panda [2019] WASAT 104 Medical Board of Australia v Wong [2017] QCA 42 Oshlack v Richmond River Council (1998) 193 CLR 72 Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39 Tamawood Ltd v Paans [2005] 2 Qd R 101 |
APPEARANCES & REPRESENTATION: | |
Applicant: | C Templeton instructed by the Office of the Health Ombudsman |
Respondent: | Self-represented This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]In this matter the applicant applied for a prohibition order against the respondent under the Health Ombudsman Act 2013 (Qld) (“the HO Act”) s 113. Following a hearing on 3 and 4 December 2020, at which the applicant was represented and the respondent was not, I reserved my decision, which was delivered on 12 February 2021: [2021] QCAT 25. A prohibition order was made against the respondent. At that time, I made directions about any application for costs.
- [2]Each party has now applied for costs from the other. The question of costs in this matter is governed by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 100, s 102. Under s 100, the starting point is that there be no order for costs, but there is power in an appropriate case for the Tribunal to depart from that position. The test for when an order for costs can be made is set out in s 102(1): “If the tribunal considers the interests of justice require it to make the order.” I considered the meaning and operation of this test in Marzini v Health Ombudsman (No 4) [2020] QCAT 365, and adhere to the views I expressed in that decision. In particular, I stated that the default position, that there be no order for costs, should not be too readily departed from, because of the use in that subsection of the word “require”. I did not agree with the language in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, that s 100 contains a strong contra-indication against costs orders, since s 100 contains no such wording.
- [3]I also expressed agreement with the proposition that the fact that there is a right to legal representation in a proceeding about disciplinary action against a person, which this case is, brought into play some of the factors mentioned by Keane JA in Tamawood Ltd v Paans [2005] 2 Qd R 101. Finally, I said that I considered that the reference to the absence of a finding of unreasonableness in Medical Board of Australia v Wong [2017] QCA 42 at [35] should be understood in the context of the particular issue under consideration at that point in the judgment, and not as a general statement as to the operation of the test in s 102(1).[1]
Application of the respondent
- [4]The application for the respondent can be quickly dealt with. There is no indication that at any time the respondent incurred any legal costs in relation to this proceeding, and the provisions of the QCAT Act, when they speak of costs, are referring to legal costs in the conventional sense. Apart from this, his application is based on a litany of complaints about the behaviour of the applicant which is at best intemperate, and finds no support in my earlier reasons, which are described by the respondent as a biased cover-up of the applicant’s dereliction of duty. This seems to originate in the respondent’s complaint that there was a transcription error in a document produced by the applicant at an earlier stage in the proceeding. As I mentioned during the hearing, transcription errors are common enough, regardless of who is doing the transcribing, and there is no reason to assume that that error was malicious.[2]
- [5]The respondent was also critical of the evidence of the applicant’s expert witness, and claimed that his human rights had been violated by the applicant, but a submission about costs is not the place to reargue substantive or evidentiary matters which have already been resolved by the earlier decision. There is nothing else in this submission relevant to the question of costs, or warranting any response from me. There is no justification in an order for costs in favour of the respondent.
Application by the applicant
- [6]The applicant also seeks costs of the proceeding, on the District Court scale. The applicant relied on the fact that, under the QCAT Act s 43(2)(b)(ii), the parties had a right to legal representation. That is because this was a disciplinary proceeding under the HO Act 2013 (Qld), since it was a proceeding for which QCAT had jurisdiction under s 94(1) or (2) of that Act,[3] and hence disciplinary action under the QCAT Act. The Tribunal was acting under s 113 of the HO Act as it then was, dealing with a matter referred to it by the Director of Proceedings under s 103 of the HO Act. One of the matters for which jurisdiction is conferred on the Tribunal by s 94 was a proceeding referred to it by the Director of Proceedings under s 103. These provisions were substantially amended in 2019, but remain in force for the purpose of this proceeding: HO Act, s 320G(2).
- [7]The applicant relied on the proposition that the duty and function of the Health Ombudsman was to protect the health and safety of the public, and that proceedings were funded, partly by the taxpayers and partly by registered health practitioners. Reference was made to the decision of the Western Australian Tribunal in Medical Board of Australia v Panda [2019] WASAT 104 at [119], where the Tribunal cited an earlier decision of the Tribunal which said:
The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body. … The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented.[4]
- [8]This approach was said to have been approved by the Western Australian Court of Appeal in Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361 at [35]. Such a statement was cited there by that Court, but that appeal was from a decision where the Board alleged dishonesty, and succeeded only in showing inefficiency. The Tribunal made a very limited costs order in its favour ($3,000), and the Court of Appeal simply said that such an order was within its discretion, and the reasons did not reveal any error of principle. It cited this passage but did not express a clear endorsement of it as a general proposition.
- [9]At one time there was a similar approach to costs in health practitioner disciplinary proceedings in Queensland, particularly when those proceedings were brought by a body funded solely by member subscriptions. More recently, however, a different approach has been adopted, as discussed in the Health Ombudsman v Antley [2016] QCAT 472 by the Hon J B Thomas QC. At [51] to [82] the former Justice of Appeal reviewed the history and noted that when the HO Act was passed it repealed the former s 195 of the National Law, so that the costs regime of the QCAT Act began to apply, and explained why he considered that the former approach was no longer appropriate under the new legislation. His analysis is too long to quote in full, but with respect I entirely agree with it. More importantly, it is clear that the approach in Antley has been adopted generally by the Tribunal, to the point where, in the many disciplinary proceedings brought by the Health Ombudsman before me last year, it was at least usual, if not invariable, for the applicant not to seek an order for costs.
- [10]There is also the consideration that, under the HO Act as it then stood, the Health Ombudsman had power to issue an interim prohibition order under the HO Act s 68, but had no power to make a prohibition order. Further, under the HO Act s 75, on issuing an interim prohibition order, the Health Ombudsman was required to investigate the matter further, or to refer it to some other agency, or to refer it to the Director of Proceedings. If there is an investigation, one outcome of that can be for the Health Ombudsman to take further relevant action, such as referring the matter to the Director of Proceedings: s 90. It is clear enough that the scheme of the HO Act was then that, if the Health Ombudsman considered (with or without an investigation) that a permanent prohibition order was appropriate, there would be a referral to the Tribunal to seek such an order.
- [11]It follows that the costs of an application to the Tribunal were an inevitable part of any application for a prohibition order, because, even if the relevant practitioner or health service provider consented to such an order, it was still necessary for the Health Ombudsman to prove the case to the satisfaction of the Tribunal. This distinguishes such a proceeding from ordinary litigation. In the case of most proceedings in a court, or indeed a commercial case in the Tribunal, the proceeding is brought because the party bringing it is entitled to recover something from the other party, and the other party will not hand it over voluntarily. The other party could avoid a costs order by handing it over voluntarily, because in that situation there would be no costs incurred. In such a case, it will commonly be seen to be just that the unsuccessful party should pay the successful party’s costs.[5]
- [12]Of course, in this matter the respondent did not accept a prohibition order, or even not resist one. He actively resisted such an order, and as a result the hearing extended to two days, during which he cross-examined two witnesses for the applicant, and gave evidence himself. These were matters of the kind referred to in Antley at [76]. I should say that I do not consider that the mere fact that a respondent to such an application puts the applicant to proof, tests the evidence of the applicant, or argues that the order should not be made brings this proposition into play; the passage referred to an unmeritorious defence, and needless complication. In the present case, however, there was some element of that, as will be apparent from my earlier reasons, and from the content of some of the respondent’s evidence and submissions, which was directed to extraneous matters, such as the fairness of the proceeding against him, and whether the applicable legislation should be changed. It is difficult to be definite, but I expect that the hearing could have been completed in one day had the respondent focussed on the relevant issues.
- [13]The QCAT Act s 102(3) list a number of specific matters to which the Tribunal may have regard in relation to costs. The applicant submitted that the respondent had acted in a way which had unnecessarily disadvantaged the applicant, by making baseless assertions designed to impugn the character of the applicant’s expert witness. An earlier error by the witness which had been exposed in prior proceedings[6] was relied on by the respondent in a way which overstated its significance, although it was a matter which could properly have been said went to the weight of his evidence. An assertion that the witness was a competitor of the respondent was unhelpful, as were comments about the value of various forms of traditional medicine, and the significance of spiritual energy. These support the proposition that the respondent at the hearing failed to focus on the relevant issues. Apart from wasting time and generating unnecessary material, however, these matters did not so much disadvantage the applicant as fail to assist the respondent.
- [14]I have addressed the nature of the proceeding. The applicant submitted that the proceeding was relatively complex. It was certainly an unusual situation, and the explanation of the risk involved some anatomical complexity, but what the respondent was doing was easily shown by videos of him in action publicised by himself, and the applicant relied on only one expert witness. That point is also relevant to the question of the relative strengths of the claims of the parties. The applicant’s expert relied on anatomical analysis, while the respondent relied on an absence of cases of harm at his hands, and there is force in each of these propositions. The fact that the present applicant succeeded in the review proceedings on much the same material was not of great significance, since the test for sustaining an interim prohibition order[7] is different from the test under s 113(1) of the HO Act.
- [15]The respondent has claimed that he has never caused any harm to any patient whose spine he has manipulated in this way, nor is he aware of anyone he has trained causing harm to a patient in this way. If that is so, and it was not put in issue at the hearing, it was not unreasonable that the respondent was doing these manipulations, nor was it unreasonable for him to have resisted a prohibition order on such a basis. If a health service provider has been doing something for some time without in fact causing harm, and can say that his or her experiences suggests that there is no serious risk to the health or safety of the public, I do not consider that the mere fact that the applicant is able to show that there really is such a serious risk, and obtains a prohibition order, justifies making an order for costs in favour of the applicant. The respondent however went further than this, as I have said, and there are aspects of the way in which the respondent defended the proceeding which can be seen to support an order for costs against him.
- [16]The applicant also submitted that there had been an apparent breach of the interim prohibition order, in that videos remained posted by the respondent at the relevant time. I did not make in this proceeding a finding that that order had been breached, and do not consider that such a finding should be made just in order to decide an application for costs. In any case, any such breach would not have disadvantaged the applicant in this proceeding.
- [17]Another matter made relevant by s 102(3) is the financial position of the parties. The position of the applicant has been set out above. There is no detailed information about the position of the respondent, although he claimed that the publication of the interim prohibition order had damaged his business, and if so, the prohibition order may well have the same effect. On the other hand, there is no reason why he should not be able to carry on a business of providing massage therapy without manipulating spines, so this is not a case where he has been prevented completely from earning income. There is no evidentiary basis for me to conclude that his business is even significantly affected. He spoke in his submissions on costs of proposing to leave Australia, but that is a matter of choice for him. It appears from the evidence I have seen in this matter that he has worked overseas in the past, and may well be able to do so in the future. I expect that his business was less remunerative anyway than that of a medical practitioner, and note the comments in Antley about the financial position of some of the people covered by the HO Act.
- [18]In view of the analysis in Antley, I do not consider that the factors set out in the passage quoted from Panda carry such force under the statutory provisions applicable to this proceeding. Adopting the approach in Antley, the issue under s 102 is whether the circumstances require an order for costs in the interests of justice. The fact that, under the HO Act as it then stood, the applicant had to come to the Tribunal for a prohibition order means that most of the costs incurred by the applicant could not have been avoided however the respondent behaved. Further, in the circumstances it was not unreasonable for the respondent to have resisted the making of a prohibition order. On the other hand, a number of matters were raised which were not relevant to the issues in the proceeding, and this would have prolonged the hearing, and caused the applicant to incur additional costs. Although the respondent is self-represented, he is obviously intelligent, and it should have been apparent to him that a number of the matters raised by him were irrelevant. As well, I assume that he is no more than comfortably off financially, and for such a person full legal costs would be a substantial burden.
- [19]Taking all the circumstances into account, I consider that the interests of justice do require that the respondent make some contribution to the additional costs to which the applicant was put by the irrelevant issues which it was not reasonable for him to have raised. The QCAT Act encourages the Tribunal to fix costs if an order for costs is made,[8] and one advantage of doing so is that it avoids further disputes between the parties over the issue of costs. On the whole I consider that the sum of $3,000 reflects a reasonable contribution on the part of the respondent to the applicant’s costs of the second day of the hearing, and having to deal with submissions which were lengthened by irrelevancies.
- [20]I therefore order that the respondent pay part of the costs of the applicant of and incidental to this proceeding, fixed in the sum of $3,000, such sum to be paid within twenty-eight days from the date of this decision.
Footnotes
[1]I also agreed with the analysis by the Hon J B Thomas QC of the factors relevant to the interests of justice in disciplinary matters in Health Ombudsman v Antley [2016] QCAT 472, but that related to a disciplinary referral where an order was made against the practitioner. The position is a little different here.
[2]The respondent in his submissions para [33] characterizes that response in a way which suggests that he misunderstood what I was saying.
[3]Health Ombudsman Act 2013 (Qld) Schedule 1 (Dictionary).
[4]Citations omitted.
[5]Tamawood Ltd & Anor v Paans [2005] QCA 111 at [30]; Oshlack v Richmond River Council (1998) 193 CLR 72 at [67]-[68].
[6]Raynor v Health Ombudsman [2019] QCAT 139, a review of an interim prohibition order.
[7]The HO Act s 68(1): a reasonable belief.
[8]The QCAT Act s 107. Even in a court, when dealing with costs it has been said that “a rough and ready assessment … is … permissible”: Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39 at [17].