Health Ombudsman v Kennedy (No.2)
[2021] QCAT 88
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- Unreported Judgment
- Health Ombudsman v Kennedy (No.2)[2021] QCAT 88
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Health Ombudsman v Kennedy (No.2)[2021] QCAT 88
Health Ombudsman v Kennedy (No.2)[2021] QCAT 88
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Kennedy (No.2) [2021] QCAT 88 |
PARTIES: | HEALTH OMBUDSMAN (applicant) |
v | |
MARIANNE RUTH KENNEDY (respondent) | |
APPLICATION NO/S: | OCR078-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 24 March 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Allen QC, Deputy President |
ORDERS: | Each party must bear the party’s own costs for the proceeding. |
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – SANCTION – where the respondent is a registered nurse – where the referral charged, and the respondent admitted, a range of misconduct in relation to misappropriation of Schedule 8 and Schedule 4 drugs, contravention of a condition, and a failure to notify the Board of a relevant event – where the respondent disputed a charge of placing a patient at risk of harm – where the applicant was unsuccessful in proving the charge of placing a patient at risk of harm to the requisite standard of proof – where the respondent made an “offer to settle” before the hearing – where the orders of the Tribunal were no less favourable to the respondent than the orders proposed by way of the “offer to settle” – where the respondent applied for an order that the applicant pay the respondent’s costs of the proceeding including costs incurred after the “offer to settle” on the indemnity basis – whether the interests of justice require the Tribunal to order that the applicant pay all or a stated part of the costs of the respondent ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – where the respondent is a registered nurse – where the referral charged, and the respondent admitted, a range of misconduct in relation to misappropriation of Schedule 8 and Schedule 4 drugs, contravention of a condition, and a failure to notify the Board of a relevant event – where the respondent disputed a charge of placing a patient at risk of harm – where the applicant was unsuccessful in proving the charge of placing a patient at risk of harm to the requisite standard of proof – where the respondent made an “offer to settle” before the hearing – where the orders of the Tribunal were no less favourable to the respondent than the orders proposed by way of the “offer to settle” – where the respondent applied for an order that the applicant pay the respondent’s costs of the proceeding including costs incurred after the “offer to settle” on the indemnity basis – whether the interests of justice require the Tribunal to order that the applicant pay all or a stated part of the costs of the respondent Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 105 Queensland Civil and Administrative Tribunal Rules 2009, r 86 Briginshaw v Briginshaw (1938) 60 CLR 336 Health Ombudsman v Barber (No.2) [2019] QCAT 252 Health Ombudsman v Kennedy [2019] QCAT 319 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77 Legal Services Commissioner v McLeod [2020] QCAT 371 Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Medical Board of Australia v Putha [2014] QCAT 159 Medical Board of Australia v Wong [2017] QCA 42 |
REPRESENTATION: | |
Applicant: | Office of the Health Ombudsman |
Respondent: | Hall Payne Lawyers |
APPEARANCES: | 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]The Director of Proceedings on behalf of the Health Ombudsman (applicant) referred to the Tribunal a health service complaint against Marianne Ruth Kennedy (respondent) pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act). The applicant sought a finding, pursuant to section 107(2)(b)(iii) of the HO Act, that the respondent had engaged in professional misconduct. The respondent denied one particular of the conduct alleged against her but did not contest a finding of professional misconduct. The parties differed as to the appropriate orders for sanction that would follow a finding of professional misconduct. The parties agreed that the respondent should be reprimanded pursuant to section 107(3)(a) of the HO Act. The applicant sought further orders, pursuant to sections 107(3)(e) and 107(4)(a) of the HO Act, cancelling the respondent’s registration and disqualifying her from applying for re-registration for a period of up to six months. The respondent contended that the Tribunal should not make orders cancelling the respondent’s registration or precluding her from practice for any period.
- [2]The Tribunal heard evidence from witnesses, including the respondent, relevant to the particulars of conduct denied by the respondent. The Tribunal determined that it could not be satisfied to the requisite standard of proof[1] that the disputed allegation was proved. The Tribunal decided that the respondent had behaved in a way that constituted professional misconduct. The Tribunal reprimanded the respondent but declined to make orders cancelling the respondent’s registration or precluding her from practice for any period.[2]
- [3]The respondent has applied for an order that the applicant pay the respondent’s costs of the proceeding, including costs following an “offer to settle” not accepted by the applicant, on an indemnity basis.
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.
…
105 Other power to award costs
The rules may authorise the tribunal to award costs in other circumstances, including, for example, the payment of costs in a proceeding if an offer to settle the dispute the subject of the proceeding has been made but not accepted.
- [5]The provisions of part 8, division 3 of the Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules) provide for settlement of proceedings by acceptance of a written offer to settle. The provisions of part 9, division 2 of the QCAT Rules relate to costs and include:
86 Additional power to award costs if particular offers to settle rejected
(1) This rule applies if –
- (a)a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and
- (b)the other party does not accept the offer within the time the offer is open; and
- (c)in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.
- (2)The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.
- (3)If a proceeding involves more than 2 parties, this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties.
- (4)In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must –
- (a)take into account any costs it would have awarded on the date the offer was given to the other party; and
- (b)disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.
- [6]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 section 102 of the QCAT Act, to order otherwise if the Tribunal “considers the interests of justice require it to make the order”.
- [7]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.[3]
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.[4]
- [8]
- [9]The effect of rules, including rule 86 of the QCAT Rules, where relevant to the proceeding, may also be relevant factors in the exercise of the discretion.
Respondent’s submissions
- [10]The respondent filed detailed written submissions. They were supported by an affidavit of the respondent’s solicitor with carriage of the matter throughout the proceedings, detailing the course of proceedings and unsuccessful attempts to reach agreement with the applicant as to the factual matters in dispute and an agreed position on sanction. The affidavit included evidence of an email sent by the respondent’s solicitor to the applicant at 11.23am on 15 October 2019, “Without prejudice save as to costs”, in which the solicitor stated, inter alia:
In circumstances where, for the reasons set out below, there is no reasonable prospect that the Ombudsman will be able to establish, on the balance of probabilities, that Ms Kennedy engaged in the conduct the subject of charge 5, the Ombudsman ought to accept the submissions advanced by the Respondent that the appropriate sanction in all the circumstances is that of a reprimand only.
Should the Ombudsman elect to proceed to a contested hearing on the discreet (sic) matter of fact set out below and the matter of sanction, we reserve our client’s rights to rely on this communication in the event of the foreshadowed cost application.
- [11]The respondent submitted that rule 86 of the QCAT Rules applied to the “offer to settle’ communicated by the email on 15 October 2019. The offer was not accepted and the decision of the Tribunal was not more favourable to the applicant than the offer. Given the state of the evidence disclosed by the material filed in the Tribunal, the applicant’s rejection of the offer was unreasonable and the Tribunal should order the applicant pay the costs of the respondent incurred after the offer was made on the indemnity basis.
- [12]The respondent made detailed submissions referring to the applicant’s conduct of the proceeding and the details of evidence relevant to the matters in dispute between the parties. The respondent submitted, particularly with respect to the applicant’s unwillingness to concede those matters in dispute that were ultimately found in favour of the respondent, that the applicant had acted in a way that unnecessarily disadvantaged the applicant (section 102 (3)(a) of the QCAT Act), the strength of the respondent’s position regarding the matters in dispute was strong (section 102 (3)(c) of the QCAT Act) and there was a disparity in the financial resources of the applicant, a well-resourced statutory body, and the respondent, a self-funded individual litigant (section 102 (3)(e) of the QCAT Act), Those factors, in addition to the non-acceptance of the “offer to settle”, would lead the Tribunal to conclude that the interests of justice required an order that the applicant pay the costs of the respondent.
Applicant’s submissions
- [13]The applicant filed detailed written submissions supported by affidavits of legal officers of the Office of the Health Ombudsman who had carriage of the proceeding on behalf of the applicant.
- [14]It is not necessary for me to refer to the contents of the affidavits filed by the applicant or the detailed analysis in the written submissions as to the state of evidence available prior to the hearing relevant to the matters in dispute between the parties. Suffice it to say that the applicant submitted it was not unreasonable to seek a determination of such matters by the Tribunal.
- [15]The applicant submitted that section 105 of the QCAT Act and rule 86 of the QCAT Rules were not apt to disciplinary proceedings for the reasons stated by Deputy President Sheridan DCJ in Health Ombudsman v Barber (No 2)[7]and the Hon J B Thomas QC, Judicial Member, in Medical Board of Australia v Putha.[8]
- [16]The applicant submitted that the interests of justice did not require a departure from the default position pursuant to section 100 of the QCAT Act and there should be no order as to costs.
Consideration
- [17]The respondent does not argue that she should not have been a subject of referral to the Tribunal. She concedes that she was properly the subject of referral to the Tribunal because of conduct that was found by the Tribunal to constitute professional misconduct requiring that the respondent be reprimanded.
- [18]The respondent’s application for costs rests upon the fact that the only matters remaining in dispute between the parties at the time of the hearing were determined by the Tribunal in the respondent’s favour. The respondent argues that the applicant was unreasonable in litigating that dispute in the hearing but should instead should have conceded such matters and reached an agreed position as to factual findings and orders for sanction. The respondent buttresses such argument by reference to an “offer to settle” in those terms and section 105 of the QCAT Act and rule 86 of the QCAT Rules.
- [19]I respectfully agree with the reasons of Deputy President Sheridan DCJ in Health Ombudsman v Barber (No 2) and the Hon J B Thomas QC, Judicial Member, in Medical Board of Australia v Putha why section 105 of the QCAT Act and rule 86 of the QCAT Rules do not apply in consideration of costs in disciplinary proceedings such as these. Whilst there are strong policy reasons why the Tribunal will not readily depart from an agreed position contended for by parties in such proceedings,[9] the Tribunal is not bound to do so. It remains for the Tribunal to make its own determinations pursuant to section 107 of the HO Act. Whilst parties will always be encouraged to resolve matters in dispute, the parties cannot settle the proceeding as might parties to a commercial dispute to which the terms of rule 86 of the QCAT Rules are apt. That does not mean that the fact of negotiations between parties to disciplinary proceedings might not be considered pursuant to section 102(3)(f) of the QCAT Act. I have considered such matter in the exercise of discretion pursuant to section 102 of the QCAT Act.
- [20]I do not consider it was at all unreasonable for the applicant to proceed as it did before the Tribunal. As the evidence stood as revealed by the contents of material filed in the Tribunal prior to the hearing, it was at least reasonably arguable that the factual dispute should be resolved in favour of the applicant. That the viva voce evidence of the applicant’s witnesses was not entirely in accord with their prior written statements, such that the case of the applicant was weaker than it earlier appeared, does not mean that it was unreasonable for the applicant to proceed as it did. Ultimately, the Tribunal did not prefer the evidence of the respondent to that of the applicant’s witnesses but, in light of the burden and standard of proof, could not be satisfied, on the evidence adduced by the applicant, that a finding adverse to the applicant should be made.[10] Once that finding was made in favour of the respondent, the applicant’s position on sanction was weakened but it was not unreasonable for the applicant to contend, nevertheless, for orders cancelling the respondent’s registration and disqualifying her from applying for re-registration for a period of up to six months. It does not necessarily follow from the fact that the Tribunal did not accept such submission that such submission was unreasonable.
- [21]I do not accept that the applicant acted in a way that unnecessarily disadvantaged the applicant (section 102 (3)(a) of the QCAT Act) or that the strength of the respondent’s position regarding the matters in dispute was so strong as to favour an order for costs (section 102 (3)(c) of the QCAT). Having regard to those considerations in section 102(3) of the QCAT Act, the circumstances of the respondent’s “offer to settle”, and the findings and orders of the Tribunal, I do not consider that the interests of justice require a departure from the default position pursuant to section 100 of the QCAT Act. The respondent’s application for costs is refused and the Tribunal will make an order making it clear that such default position applies.
Footnotes
[1] Briginshaw v Briginshaw (1938) 60 CLR 336.
[2] Health Ombudsman v Kennedy [2019] QCAT 319.
[3] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77 at [10] per Deputy President Kingham DCJ.
[4] Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327 at [7] per Daubney J, President.
[5] Medical Board of Australia v Wong [2017] QCA 42.
[6] Marzini v Health Ombudsman (No 4) [2020] QCAT 365 at [37] per Judicial Member D J McGill SC.
[7] [2019] QCAT 252 at [22]-[25].
[8] [2014] QCAT 159 at [47].
[9] Legal Services Commissioner v McLeod [2020] QCAT 371 at [31]-[32] per the Hon Peter Lyons QC, Judicial Member.
[10] Health Ombudsman v Kennedy [2019] QCAT 319 at [43].