Rao v Medical Board of Australia (No 2)
[2021] QCAT 391
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- Unreported Judgment
- Rao v Medical Board of Australia (No 2)[2021] QCAT 391
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Rao v Medical Board of Australia (No 2)[2021] QCAT 391
Rao v Medical Board of Australia (No 2)[2021] QCAT 391
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Rao v Medical Board of Australia (No 2) [2021] QCAT 391 |
PARTIES: | PRADEEP HANUMANTHA RAO (applicant) v MEDICAL BOARD OF AUSTRALIA (respondent) |
APPLICATION NO/S: | OCR018-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 25 November 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Allen QC, Deputy President |
ORDERS: | The respondent pay the applicant’s costs of and incidental to the proceeding on the standard basis for matters in the District Court as agreed or assessed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – where the Medical Board of Australia decided to take immediate action and suspend, and later impose conditions on, the applicant’s registration – where the applicant sought a review of the decision to impose conditions on his registration – where the Tribunal set aside the decision of the Board – where the applicant seeks an order for costs – whether the interests of justice require an order for costs Health Ombudsman Act 2013 (Qld), s 94, schedule 1 Health Practitioner National Law (Queensland), s 3, s 156, s 199 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23, s 43, s 100, s 102 AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401 Bernadt v Medical Board of Australia [2013] WASCA 259 Chandra v Queensland Building and Construction Commission [2016] QCATA 53 Chivers v State of Queensland (No 2) [2012] QCAT 437 Cowen v Queensland Building and Construction Commission [2021] QCATA 103 De Villiers v Medical Board of Australia (No 2) [2021] QCAT 92 at [21] Harirchian v Health Ombudsman (No 5) [2021] QCAT 80 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77 Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Rao v Medical Board of Australia [2021] QCAT 145 |
APPEARANCES & REPRESENTATION: | |
Applicant: | K&L Gates |
Respondent: | Clayton Utz |
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
Introduction
- [1]Dr Rao (applicant) applied for a review of the decision of the Medical Board of Australia (Board) to take immediate action, pursuant to section 156 of the Health Practitioner Regulation National Law (Queensland) (National Law), and impose conditions on his registration.
- [2]Following a hearing on 6 May 2021, the Tribunal delivered ex tempore reasons and made an order setting aside the decision of the Board. The applicant subsequently filed written submissions seeking an order that the Board pay the applicant’s costs of and incidental to the proceeding. The Board filed written submissions in reply.
- [3]These are the reasons of the Tribunal for ordering that the Board pay the applicant’s costs of and incidental to the proceeding. They should be read in conjunction with the Tribunal’s reasons for the substantive decision.[1]
Legislation
- [4]The following provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) require consideration:
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.
- (2)However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
- (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.
Construction of ss 100 and 102 of the QCAT Act
- [5]Section 100 of the QCAT Act states the prima facie position that each party, whatever the outcome of proceedings, will bear their own costs of the proceedings. That prima facie position is subject to the exercise of the discretion of the Tribunal, pursuant to s 102 of the QCAT Act, to order otherwise if the Tribunal “considers the interests of justice require it to make the order”.
- [6]As to the factors relevant to the exercise of that discretion specified in section 102(3) of the QCAT Act:
The factors listed in s 102 are a guide to the considerations the Tribunal may take into account in deciding whether this is an appropriate case in which to award costs. In any given case, the relative importance of each criterion will vary. Further, their significance may relate to what stage the proceedings have reached. For example, questions about the relative strengths of the parties’ cases may assume less significance upon an initial hearing, yet loom large when it comes to the costs of an application for leave to appeal.[2]
These factors, individually and collectively, are not determinative, and go only to informing the exercise of a broad discretion, the touchstone of which remains the Tribunal’s assessment of the interests of justice in a particular case. The discretion to award costs will only be exercised when the interests of justice in a particular case outweigh the prima facie “no costs” position under s 100.[3]
- [7]
- [8]A useful compilation and discussion of the authorities on the operation of ss 100 and 102 of the QCAT Act is to be found in the reasons of Judicial Member McGill SC in Marzini v Health Ombudsman (No 4).[6]
- [9]
I do not read the decision as laying down a test for the operation of s 102 in cases generally, that a finding of unreasonableness must be made before an order for costs can be made. That is not the statutory test. I consider that the Court was simply identifying what was seen as an error in the Tribunal’s reasoning, in the circumstances of that case.[9]
- [10]I agree with the conclusions reached by Judicial Member McGill SC in Marzini v Health Ombudsman (No 4)[10]as to the correct approach to the operation of ss 100 and 102 of the QCAT Act:
The ultimate question posed by the statutory provisions is whether in a particular case the interests of justice require the Tribunal to make a costs order. That is the effect of the terms of the statute. Because of the use in s 102(1) of the word “require”, the default position of no order as to costs should not be too readily departed from.
…
I do not consider that there is any justification in the words of the statute for any further constraint on the operation of the power to order costs under s 102, although the section directs attention to a number of matters which may in a particular case be usefully considered. The reference to “any other matter the Tribunal considers relevant” shows that this list is not to be read in a confining sense. One matter which is relevant is that this proceeding is one where there was a right to legal representation.
- [11]That last comment by Judicial Member McGill SC is equally apt to this matter. The decision the subject of the proceeding was an appellable decision pursuant to s 199 of the National Law so that the Tribunal was conferred jurisdiction to review the decision within the terms of s 94(2) of the Health Ombudsman Act 2013 (Qld) (HO Act) and the proceeding was a “disciplinary proceeding” as defined in Schedule 1 of the HO Act. Pursuant to s 43(2)(b)(ii) of the QCAT Act, both parties had a right to be legally represented.
- [12]
Under the QCAT Act the question that will usually arise in each case in which costs are sought is 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 costs orders in s 100.
- [13]I agree with the observations of Judicial Member McGill SC in Cowen v Queensland Building and Construction Commission including the following:
… I remain of the view that the relevant test is that in s 102(1): whether the interests of justice require that order. As I said in Marzini, the use of the term “require” shows that an order for costs should not be too readily made… In so far as his Honour went further in Ralacom at [29], I consider that his statement cannot confine the discretion conferred on the Tribunal under s 102(1), or modify the test in that section.
…
I consider that to say that an order for costs will not be made unless the factors favouring an order are “compelling” does not accurately state the test for making an order for costs laid down by s 102(1) … The test is whether the interests of justice “require” an order for costs, but I do not accept that the circumstances favouring an order for costs must be compelling before that test will be met.[14]
(footnotes omitted)
Applicant’s submissions
- [14]The applicant submits that the following matters mean it is in the interests of justice to make an order for costs:
- (a)the application for review was necessary for the applicant to regain his ability to practise his profession;[15]
- (b)the Board failed to properly consider the merits of its case;
- (c)
- (d)the applicant was wholly successful in his application.
- (a)
- [15]The applicant submits that it should have been reasonably apparent to the Board that the practitioner did not pose a serious risk to persons. The applicant details the material available to the Board at the time of the reviewable decision in support of such submission.
- [16]The applicant refers to the Board declining to consider the applicant’s offer to submit to a practice monitor condition as an alternative to a gender restriction condition. The applicant was wholly successful in having all conditions removed from his registration.
Board’s submissions
- [17]The Board submits that nothing warrants a departure from the default position regarding costs provided by s 100 of the QCAT Act.
- [18]The Board submits that the applicant’s success in the proceeding without more, does not entitle the Tribunal to depart from the usual position as to costs under s 100 of the QCAT Act.
- [19]The Board points out that it cooperated with the applicant throughout the proceedings:
- (a)by reconsidering the decision pursuant to s 23 of the QCAT Act within just over a month after its initial decision and reducing the strictness of its initial action; and
- (b)by facilitating the matter being brought on for final hearing under an expedited timeframe.
- (a)
- [20]Accordingly, the Board did not act in a way which unnecessarily disadvantaged the applicant in the sense of the considerations under s 102(3)(a) of the QCAT Act.
- [21]The Board submits that the matter must be assessed through the lens of the power being exercised by the Board, interim in nature and not requiring detailed enquiry by the Board.[17] It involves an evaluative judgment upon which reasonable minds may reasonably differ.[18] It only involves a prima facie assessment; not a decision with the finesses of a tribunal assisted by the advice of professional assessors.[19] The fact the Tribunal reached a different conclusion than the Board does not mean the Board failed to undertake a proper consideration of the merits of the case. There is no proper suggestion the Board’s decision was arbitrary or capricious. The Board referred to evidence supporting the original decision.
- [22]The Board submits that the parties being legally represented is merely a discretionary consideration which does not automatically warrant a costs order under s 102 of the QCAT Act and cites Appeal Tribunal and Tribunal authorities in support of such submission.[20]
- [23]The Board submits, as regards the consideration of the parties’ financial circumstances, that the applicant’s professional indemnity insurer is responsible for his legal costs in this matter, in contrast to the Board, which is predominantly funded by its registrants, and in that regard has more finite and limited resources.
Consideration
- [24]Dealing with the considerations in s 102(3) of the QCAT Act:
- (a)The Board did not act in a way that unnecessarily disadvantaged the applicant. To the contrary, it sought an order from the Tribunal, pursuant to s 23 of the QCAT Act, for reconsideration of the decision and facilitated an expedited hearing. This consideration weighs against an order for costs.
- (b)The nature of the proceeding was such that the parties had a right to legal representation and the proceeding was necessary for the applicant to return to unrestricted practice. This consideration weighs in favour of an order for costs.
- (c)The merits clearly favoured the applicant for the reasons given in the substantive proceeding. The evidence available to the Board did not reasonably ground a belief that the applicant posed a serious risk to persons and that it was necessary to take immediate action to protect public health and safety.[21] The initial suspension and the subsequent conditions went well beyond what was required to address the risk the Board believed existed.[22] This consideration weighs in favour of an order for costs.
- (d)The applicant was afforded natural justice by the Board and the applicant genuinely attempted to enable and help the Board make a decision on the merits. This consideration is, on balance, neutral.
- (e)Registrants do incur expense in funding the activities of the Board, but also in obtaining professional indemnity insurance. The costs of disciplinary proceedings may be borne by the Board, with a consequent call upon registrants’ contributions to the Board, and/or by professional indemnity insurers, with a consequent call upon insurance premiums paid by registrants. This consideration is, on balance, neutral.
- (f)The Board’s refusal to permit the applicant to practise subject to a practice monitor condition, rather than a gender restriction condition, is a consideration in favour of an order for costs.
- (a)
- [25]I consider that the interests of justice require the Tribunal to order that the Board pay the applicant’s costs of and incidental to the proceedings.
Footnotes
[1] Rao v Medical Board of Australia [2021] QCAT 145.
[2] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77 at [10] per Deputy President Kingham DCJ.
[3] Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327 at [7] per Daubney J, President.
[4] Medical Board of Australia v Wong [2017] QCA 42.
[5] Marzini v Health Ombudsman (No 4) [2020] QCAT 365 at [37] per Judicial Member D J McGill SC.
[6] [2020] QCAT 365 at [6]-[35].
[7] Ibid at [27]-[29].
[8] [2017] QCA 42.
[9] Supra at [29].
[10] Ibid at [36]-[37].
[11] Ibid at [8]-[17].
[12] [2021] QCATA 103 at [25]-[28].
[13] [2010] QCAT 412 at [29].
[14] Supra at [27] and [28].
[15] Harirchian v Health Ombudsman (No 5) [2021] QCAT 80 at [20].
[16] Marzini v Health Ombudsman (No 4) [2020] QCAT 365 at [37].
[17] De Villiers v Medical Board of Australia (No 2) [2021] QCAT 92 at [21].
[18] Bernadt v Medical Board of Australia [2013] WASCA 259 at [76]; AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401 at [30].
[19] De Villiers v Medical Board of Australia (No 2) [2021] QCAT 92 at [21].
[20] Chandra v Queensland Building and Construction Commission [2016] QCATA 53 at [11]-[13]; Chivers v State of Queensland (No 2) [2012] QCAT 437 at [9].
[21] National Law, s 156(1).
[22] National Law, s 3(3)(c).