Harirchian v Health Ombudsman (No 5)
[2021] QCAT 80
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Harirchian v Health Ombudsman (No 5)[2021] QCAT 80
- Add to List
Harirchian v Health Ombudsman (No 5)[2021] QCAT 80
Harirchian v Health Ombudsman (No 5)[2021] QCAT 80
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Harirchian v Health Ombudsman (No 5) [2021] QCAT 80 |
PARTIES: | RAMIN HARIRCHIAN |
| (applicant) |
| v |
| HEALTH OMBUDSMAN |
| (respondent) |
APPLICATION NO/S: | OCR149-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 19 March 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – regulation of registered health practitioner – suspension of practitioner – review of immediate registration action – on review suspension set aside, conditions substituted – whether the interests of justice require an order for costs Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 43(2)(b)(ii), s 100, s 102 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Medical Board of Australia v Wong [2017] QCA 42 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Tamawood Ltd v Paans [2005] 2 Qd R 101 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | T Inoke of Avant Law |
Respondent: | C Templeton instructed by the Office of the Health Ombudsman |
| 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]The applicant is and was at all material times a registered health practitioner, being a medical practitioner. The respondent took immediate registration action against him, by suspending his registration. He applied to the Tribunal to review that decision, and for reasons the Tribunal gave, it set aside the decision to suspend the registration, and instead imposed strict conditions on his registration.[1]
- [2]Subsequently the applicant sought his costs of the review, except for some costs paid under the Appeal Costs Fund Act 1973 (Qld). This matter came on for hearing before the Tribunal before the Deputy President of the Tribunal and assessors on 18 September 2020. After the hearing his Honour disqualified that Tribunal from determining the matter, and ordered that it be reheard before a Tribunal differently constituted. As a result, I and different assessors conducted a rehearing on the papers. The Deputy President has issued a certificate under the Appeal Costs Fund Act 1973 s 22(2)(c) in respect of the costs thrown away as a result of the matter having to be reheard, and the applicant does not seek to recover from the respondent any costs paid to the applicant from the Appeal Costs Fund as a result of that certificate. That is a reasonable approach.
- [3]The applicant had been convicted, after a trial, of one charge of sexual assault, committed on a patient, and sentenced on 6 December 2019 to a short term of imprisonment. The suspension of his registration was imposed on 1 May 2020, after receiving submissions made on his behalf in response to the show cause procedure. The suspension was based, and defended by the respondent at the hearing, solely on the public interest ground.
- [4]Section 58 of the Health Ombudsman Act 2013 (Qld), under which the suspension was imposed, originally provided for immediate registration action only on the ground of public safety, but in 2017 it was amended to insert, as an additional ground, the public interest. This paralleled an equivalent provision in the Health Practitioner Regulation National Law, and I was cited two decisions from Victoria which provided some analysis of the concept. I had previously given some consideration to this ground in another case,[2] factually somewhat different, but I was not cited any other Queensland decisions dealing with the public interest ground. It was then a relatively new concept in Queensland, so far as s 58 was concerned.
Legislation
- [5]The question of costs in this matter is governed by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100, s 102. The test for when an order for costs can be made is that 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.
- [6]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).[3]
Submissions of the applicant
- [7]The applicant argued that it was in the interests of justice to order that the respondent pay his costs because he was successful in the proceeding; he and the respondent were legally represented and had a right to be; the respondent had relied at the hearing on matters not identified in the show cause process; the respondent had relied on two inappropriate matters in support of the suspension; and the respondent had taken a superficial approach to the question of whether the suspension was necessary.
- [8]The additional matters relied on at the hearing were the potential outcome of the disciplinary referral, the maintenance of the system of regulation and of public faith in it, and the need for general deterrence. The respondent accepted that these had not been referred to in the show cause process, but submitted that it was appropriate for it to do so, given that the review was to be conducted as a fresh hearing on the merits; that it was not unusual to argue additional matters in support; that it had not relied on any additional factual matters; and that it had confined submissions at the hearing to the public interest ground. Finally, the respondent noted that the applicant had not pointed to any particular disadvantage that he had suffered as a result of these expanded arguments. The disadvantage relied on by the applicant was just that he had been deprived of the opportunity at an earlier time to advance submissions directed to those considerations.
- [9]The two matters said to be inappropriate, and unsupported by authority, were the prospective outcome of the disciplinary referral, and the significance of general deterrence. The applicant relied on the fact that these arguments had been rejected by the Tribunal, but the respondent submitted that the mere fact that arguments advanced had been rejected did not support an order for costs, and that the function of the submissions was to show that the immediate action taken was not disproportionate to the public interest issues involved. The respondent also submitted that the applicant had divorced that submission from the context in which it was advanced. As to general deterrence, it was submitted that the public interest was a broad concept, and that it was reasonable enough to advance that argument, although unsupported by authority. For that matter, there was no authority to the contrary at that stage.
- [10]Finally, it was submitted that the respondent had taken a superficial approach to the issue of public interest, with a focus on the notion of reputational damage to the profession and to the system of regulation, and that there had been a failure to accept the need for proportionality between the risk posed by the applicant’s conduct and the content of the immediate action. It was submitted for the respondent that this did not do justice to the respondent’s submissions, which had been directed to the risk to the reputation of the profession, to the interest the criminal trial had generated and, in some detail, to the significance of the distinction between being charged with and being convicted of such conduct.
Submissions of the respondent
- [11]Apart from the more responsive matters already summarised, the respondent relied on the passage in Ralacom referred to above, which I had rejected in Marzini, and a different passage from the Court of Appeal decision in Wong, where the Court described the question as whether there was a basis for departing from the default position,[4] which I accept, although it does not show what sort of basis is required by s 102(1). In relation to the decision in Tamawood Ltd v Paans, it was submitted that the remarks in it had to be understood in the context in which they were made, a commercial building dispute.
- [12]As to this last point, I adhere to what I said about that decision in Marzini. That case was actually about a domestic building dispute, between the owner of a block of land and two builders, which led to a judgment against each for $10,000. In that matter the parties had obtained leave to be legally represented, and were, and the benefit of the modest award would have been significantly diminished if the legal costs expended in recovering it had to come out of it. There are certainly factual differences, but some of the statements by Keane JA were general propositions about the operation of the concept of the interests of justice, and there is no reason why they do not apply.
Consideration
- [13]It is appropriate to consider the factors listed in s 102(3) of the Act. There was nothing in the conduct of the respondent in the proceeding which unnecessarily disadvantaged the applicant. Indeed, the respondent was cooperative about expediting the hearing, and about reducing the areas of dispute about the terms of the conditions to be substituted for the suspension.[5] The nature of the dispute was as to whether the applicant was going to be allowed to practice his profession at all during the period before a disciplinary referral was dealt with, so the matter was quite important. The case was straightforward factually, but because of the broad nature of the issue of “public interest”, and limited guidance in earlier decisions, there was some complexity about how to decide what was required by the public interest. Accordingly it was reasonable for the applicant to have had legal assistance in the review, as he was entitled to do.
- [14]As to the relative strengths of the claims of the parties, this does not just depend on who was ultimately successful, but is I believe designed to enable the Tribunal to take into account, if it exists, a situation where prior to the hearing it ought to have been apparent to the unsuccessful party, acting reasonably, that its position was so weak that it ought to compromise or abandon its case rather than take it to a hearing. On that interpretation, the absence of a clear pattern from previous decisions concerning the operation of the public interest element meant that there was no such clarity available before the hearing. The position taken by the respondent was I consider unduly restrictive, but it was not unarguable.
- [15]With regard to paragraph (d), which applies, the applicant was afforded natural justice by the respondent, and the applicant provided the respondent with relevant material which I consider should have led the respondent to take a less restrictive view of the immediate action required. This is not a case where the outcome of the review turned on additional material put forward by the applicant for the first time on the review. Had that been so, it would have been a factor against an order for costs in favour of the applicant.
- [16]There is no detailed material as to the financial circumstances of the applicant, although the effect of the respondent’s decision to suspend his registration meant that he was unable to earn income as a doctor from 1 May 2020 to at least the latter part of December 2020, which left him and his family without financial support. This must have had a significant adverse effect on his financial position. There was material before the Tribunal that this was severely impacting on his family, and making it difficult for him to afford to comply with drug testing conditions imposed on his registration by the Medical Board of Australia. The respondent is a government agency, presumably funded from the money appropriated for the operation of the Health Department.
- [17]There is another factor which is worth considering in these circumstances. The respondent as a regulator has an important function, and should not be deterred by costs orders from taking action promptly under s 58, particularly in order to protect public safety. In that context, it may be appropriate to act on plausible allegations even before the true facts have been ascertained. But that was not really what happened here. The respondent acted on facts established by a court, and the dispute in the Tribunal was about whether the public interest required such restrictive action as suspension of registration to secure public confidence in the medical profession, even before a disciplinary referral was heard and determined.
- [18]In such circumstances, there is not the same pressing need for urgent action, but it remains proper for the respondent to be willing to act in appropriate cases, and not to be deterred from doing so by the risk of adverse costs orders if a review succeeds. On the other hand, if practitioners who challenge successfully immediate registration action on a review by the Tribunal do not recover the costs of the legal representation which the legislature regards it as reasonable that they have without leave,[6] they will be discouraged from doing so except in clear cases, and this could encourage overreach by the respondent, which would also not be in the public interest. Any general approach to the making of costs orders in such matters risks some distortion, one way or the other.
- [19]The review undertaken by the Tribunal is a full merits review, so that the issue is not whether the respondent erred in some way in coming to the decision under review. In the present case, the difference in outcomes is largely the product of different views as to the impact of the fact of the criminal conviction on the public interest, and what was appropriate action in response to it. It would not be appropriate to investigate whether there was some error in the decision of the respondent just to decide the question of costs. There is nothing in s 102(3) to encourage that approach. It is true that I was critical of some of the arguments advanced by the respondent on the review in opposition to the application, but these were not the basis of the original decision. I do not consider that the fact that on the review the respondent relied on arguments not relied on in the decision, and which proved unpersuasive, provides in itself any support for an order for costs
- [20]In the present case the effect of the decision of the respondent was that the applicant was unable to practice his profession at all, and was therefore cut off from the only means of earning a living for which he was fitted by training or experience. Accordingly for him the review was a very important matter. Given the legislative exception to the general approach that parties before the Tribunal do not have the assistance of lawyers, and hence do not incur legal costs anyway, it was reasonable for him to engage lawyers for the review. In the event, his challenge was successful. It was necessary for him to come to the Tribunal in order to get the suspension lifted, and in that sense, to get justice. It is not obvious that what was said by Keane JA about the position of the owner in Tamawood at [33], that “it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome” does not also apply to him.
- [21]In view of this, and bearing in mind the factors referred to in subsection (3) discussed earlier, particularly the fact that the respondent had the relevant material at the time of the decision under review, I consider that on balance the interests of justice do require that an order for costs be made in favour of the applicant. It is appropriate, given the constitution of the Tribunal, that the costs be assessed as costs on the standard basis on the District Court scale. That is the conventional order, although no doubt in practice it will, as usual, provide less than a full indemnity. Accordingly, the decision of the Tribunal is as follows:
- (a)The respondent pay the applicant’s costs of and incidental to the proceeding in the Tribunal, except in so far as those costs include costs for which the applicant receives payment under the Appeal Costs Fund Act 1973 (Qld), to be assessed on a standard basis on the scale appropriate under the Uniform Civil Procedure Rules 1999 (Qld) for a proceeding in the District Court.
- (b)The amount of the costs if not agreed be assessed by a costs assessor who is an approved costs assessor for the purposes of those Rules, as agreed by the parties or, failing agreement, as appointed by the Tribunal.
- (c)The costs be paid by the respondent to the solicitors for the applicant within twenty-eight days of the ascertainment of the amount of those costs by agreement or by assessment.
- (a)
Footnotes
[1] See Harirchian v Health Ombudsman (No 2) [2020] QCAT 414; Harirchian v Health Ombudsman (No 3) [2020] QCAT 489.
[2] LCK v Health Ombudsman [2020] QCAT 316.
[3] 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, and does not apply here.
[4] [2017] QCA 42 at [35].
[5] In this respect the case was nothing like LCK v Health Ombudsman (No 2) [2020] QCAT 460.
[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43(2)(b)(ii).