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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Ting v Medical Board of Australia (No 2)  QCAT 187
JOHN YUK CHING TING
MEDICAL BOARD OF AUSTRALIA
Occupational regulation matters
3 June 2021
On the papers
Judicial Member D J McGill SC
Dr A Thillainathan
Professor J Searle
Ms C Narayan
The Tribunal orders the applicant to pay the respondent’s costs of and incidental to the proceeding, fixed in the sum of $15,000.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – regulation of health service providers – suspension of registration of medical practitioner – review of suspension not successful – approach to costs orders for disciplinary proceedings – whether the interests of justice require an order for costs – aspects of applicant’s conduct of case unreasonable – order for fixed, limited costs made
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102
Health Ombudsman v Antley  QCAT 472.
Marzini v Health Ombudsman (No 4)  QCAT 365.
Medical Board of Australia v Wong  QCA 42.
Tamawood Ltd v Paans  2 Qd R 101.
APPEARANCES & REPRESENTATION:
Ms L Nixon of TurksLegal
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
- This was a review of a decision of the respondent, under the Health Practitioner Regulation National Law (Queensland) (“the National Law”) s 156(1)(a)(i), on 7 March 2019, to suspend the registration of the applicant, a medical practitioner. On 19 March 2021, the Tribunal published a decision confirming the decision of the respondent to suspend the registration of the applicant as a medical practitioner:  QCAT 53. At that time, the Tribunal made directions dealing with the issue of costs. Subsequently the respondent filed submissions seeking an order that the applicant pay its costs of and incidental to the proceeding, on the District Court scale assessed on the standard basis.
- 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)  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 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  2 Qd R 101. 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  QCAT 472, although that related to a disciplinary referral where an order was made against the practitioner, and the position is different here. Finally, I said that I considered that the reference to the absence of a finding of unreasonableness in Medical Board of Australia v Wong  QCA 42 at  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).
- The respondent submitted that an order for costs should be made in its favour in this matter, because this was a matter in which it was entitled to legal representation; it had been successful; the applicant’s case was never strong and its weakness was exposed during the hearing, when more evidence emerged about the applicant’s history; there had been a prior review by the Tribunal (differently constituted) of a related decision to cancel the authority of the applicant to prescribe Schedule 8 drugs, and Schedule 4 drugs of addition, which covered much of the same ground; the applicant’s action had been the culmination of regulatory action which included the imposition of conditions on the registration of the applicant, which the applicant had breached, so that it was appropriate for the respondent to react to the risk posed by the applicant.
- It was also submitted that the conduct of the proceeding had been made more burdensome by the applicant’s reluctance to make concessions, and his defence of actions which had been judged inappropriate, by assessors or by the Tribunal or both. There were a large number (16) of findings of the previous review which the applicant continued to dispute, and the applicant in submissions at times seemed to be seeking to have the outcome of the prior review overturned, which was not a reasonable approach. The applicant had persisted in blaming his problems on overwork, without acknowledging his responsibility for the amount of work he was doing and his manner of practice.
- The applicant had put forward no independent evidence to counter the opinions of the assessors, and his own evidence was rambling and difficult to follow, and at times not directed to the relevant issues. He put forward proposals for his resuming practice (such as undertaking rural practice) which were quite unrealistic in the context of an inability to prescribe certain medications, and the possible need for supervision. Written submissions served before the hearing were lengthy, difficult to follow and frequently appeared to be directed to irrelevant matters. Apart from that, in the course of preparation for the hearing, the applicant had sent lengthy and repetitious emails, including providing the respondent with copies of emails to third parties, which increased the burden on the respondent of conducting the proceedings.
- The applicant provided submissions in writing in response on 14 April 2021, attaching various documents. Many of his submissions were devoted to responding to various matters covered in the substantive decision. Arguments in relation to costs are not an opportunity to re-argue issues in the substantive proceeding which have already been decided by the Tribunal. Apart from that, he pointed out that he had previously withdrawn an earlier review application after a compulsory conference: para 6. He submitted that the respondent had put before the Tribunal a large volume of complex material: para 10. There was a good deal of material in the hearing book, but it was generally relevant and appropriate for inclusion, although a good deal of the material also used in the earlier review was less directly relevant.
- The applicant submitted that the medical arguments he had advanced at the hearing were not unreasonable and were fairly arguable, even if they were not accepted by the Tribunal. In substance this was a submission that he had not relied on unmeritorious submissions, or raised unnecessary complications, matters recognised in Health Ombudsman v Antley  QCAT 472 at  as potentially justifying an order for costs. In that case there was a disciplinary referral against a registered health practitioner which at the hearing was not opposed, and no order was made for costs. As I mentioned earlier, I agree with the analysis in that decision.
- Finally, the applicant touched on his financial position, pointing out that he was supporting a wife and five children, and had a mortgage with $100,000 owing on it: para 21. Traditionally in courts costs are awarded without consideration of the financial position of the person ordered to pay. The QCAT Act by s 102(3)(d) departed from that position, as discussed in Antley (supra), and I respectfully agree with what was said there. In that case, however, costs were sought against the practitioner following a successful referral, whereas here the costs are sought by the respondent to an application to review a suspension imposed as an immediate response to the applicant’s actions. In the present case therefore the legal costs incurred by the respondent could have been avoided if the applicant had not brought and pursued the review.
- That the respondent was entitled to be legally represented, and had reasonably employed lawyers in order to resist, successfully, the applicant’s review, support the proposition that the interests of justice require the making of an order for costs. There is also the consideration that there had been an earlier review of the decision to cancel his prescribing endorsement, which raised similar issues, and when it failed, left an obstacle to a successful review of the decision to suspend, as explained in the earlier reasons. The applicant had at times what seemed to be quite an unrealistic approach to how it might be possible to practice subject to this limitation, such as suggesting that he do rural relieving work.
- With regard to the complexity of the dispute, the applicant challenged the criticism of him by the medical assessors who sat in on his consultations with patients one morning, essentially on medical grounds, in respect of a number of patients, which produced some technical complexity. But his challenges were unsupported by independent evidence, his explanation of them was unconvincing, and the Tribunal assessors agreed with the respondent’s assessors in respect of what was and what was not proper medical practice. If he was seeking to justify an unconventional approach to medicine, in particular in the management of chronic pain, he needed to support this with more than his own assertions. Going into the review, his case was relatively weak.
- As to the respondent’s complaint that the way in which the applicant conducted the proceedings unnecessarily disadvantaged it, by increasing the cost of handling the dispute, the applicant sent the respondent’s lawyers a large number of emails, 51 addressed to the solicitor, and copies of a further 92 sent to other people. The applicant also sent copies of emails to a staff member of AHPRA, which was not appropriate when the respondent was legally represented. An attempt to agree on a chronology foundered when the applicant stopped responding to emails, and ultimately each party provided a chronology to the Tribunal. When the respondent was collecting the documents to be included in a bundle of documents filed in the Tribunal, the solicitor was copied into 66 emails forwarding documents the applicant wanted to have included in the bundle, all over one weekend.
- Following the decision in the earlier review, the applicant was invited to agree to a list of 28 findings identified by the respondent as having been made in that decision, on the basis that this could be put before the Tribunal in this matter. The applicant would only agree with ten of those findings, and in submissions in writing in this matter the applicant identified sixteen findings in the previous review that he did not agree with. These were generally of no great significance in the present proceeding, but illustrate the failure of the applicant to focus on the issues relevant to particular proceedings, and to attempt to continue to pursue matters which have been decided. As an illustration of this, in his submissions in relation to costs, the applicant said three times (in substance) “I know this is a submission about costs, but …” and went on to attempt to reargue the substantive issues, or even those of the earlier review.
- I understand that the applicant is not a lawyer, and that this matter was of great importance to him, but that does not justify his being difficult and argumentative about matters which could easily be resolved, or in attempting to reopen matters already resolved. I accept that the behaviour of the applicant conducted the dispute in a way which unnecessarily disadvantaged the respondent by engaging in long, unfocused, repetitive and otherwise inappropriate communications. This is a relevant factor.
- Another relevant factor is the financial position of the parties. At a time when the professional regulatory bodies such as the respondent were funded by members’ subscriptions, it was considered particularly appropriate for their costs to be paid by those erring practitioners who had made necessary proceedings before a court or tribunal. More recently a different approach has been adopted, at least by this Tribunal, for reasons explained in Antley (supra), with which I respectfully agree. There is little information about the financial position of the applicant, except that he has been prevented from practicing as a doctor since early 2018 as a result of the suspension challenged in this appeal, so presumably his income has been substantially reduced as a result. He says he is supporting a wife and five children, and has a mortgage, but did not provide details which would support a finding that his financial position is particularly constrained. It appears that before the suspension he had a very busy practice, and would then have had a good income. Overall I expect his financial position is modest, but he is not particularly poor.
- I accept that the mere fact that the applicant’s challenge to the suspension was unsuccessful does not mean he has to pay the respondent’s costs. In the present case however the respondent’s position was simple enough: the applicant was seeing far too many patients to enable proper preparation for consultations, and proper documentation, which can lead to errors, and when it put limits on the number of consultations, the applicant did not stay within them. For the applicant to concentrate on the appropriateness of particular treatments provided to particular patients during the inspections misses this fundamental difficulty with his application. When he did speak about limits on consultations, his submissions were really directed to changing the restrictions so that he could still see more patients. It then did not help that his exposition of his approach to treatment was not supported by independent evidence, and did not find favour with the medical assessors. Overall, this was an application which should not have been pursued, at least after the failure of the review of the prescribing decision.
- As well, I consider that there is some force in the respondent’s submission that the applicant conducted the proceeding in a way which unnecessarily disadvantaged the respondent, in terms of incurring additional costs. Because of these two factors in particular, and taking into account all the circumstances of the review, I consider that overall the interests of justice do require that an order be made that the applicant pay the respondent’s costs. I remain concerned, however, about the financial position of the applicant, and in those circumstances I consider that there should be a cap on the amount of costs that the applicant has to pay. In all the circumstances, I consider that an appropriate cap would be $15,000.
- Strictly speaking, the appropriate order would be that the applicant pay the respondent’s costs of and incidental to this proceeding, to be assessed on the District Court scale on the standard basis, but limited to an amount of $15,000. I note however that the QCAT Act encourages the Tribunal to fix costs when they are ordered, and as I am confident that the assessed costs of the respondent would exceed $15,000 if assessed on that basis, I propose simply to fix the costs payable at $15,000. That approach has the advantage of avoiding the need to incur further costs in having the costs assessed, or in arguing about the assessment. It is obviously not intended to be a full indemnity.
- Accordingly, the Tribunal orders the applicant to pay the respondent’s costs of and incidental to the proceeding, fixed in the sum of $15,000.
 The respondent relied in submissions on the passage at  of his Honour’s judgment.
 This applied to his written submissions paras 5, 7 – 9, 12, 14, 16 – 19, 24, 27 – 38. Paras 25 and 26 were also not directed to any relevant matter.
 The applicant complained of this as duplicated material: written submissions para 21.
 Applicant’s written submissions paras 11, 13.
 Dal Pont Law of Costs (4th Ed 2018) para 8.30.
 There is no reason to doubt that the respondent has to pay the lawyers who represented it.
 Affidavit of Nixon sworn 6 April 2021 para 10.
 Ibid para 13.
 Ibid paras 16 – 19.
 Ibid para 11.
 Ibid para 36.
  QCAT 53 at .
 Written submissions of applicant, paras 15, 20, 38.
- Published Case Name:
Ting v Medical Board of Australia (No 2)
- Shortened Case Name:
Ting v Medical Board of Australia (No 2)
 QCAT 187
Judicial Member D J McGill SC
03 Jun 2021