Health Ombudsman v Cheong (No 2)
[2022] QCAT 354
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- Unreported Judgment
- Health Ombudsman v Cheong (No 2)[2022] QCAT 354
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Health Ombudsman v Cheong (No 2)[2022] QCAT 354
Health Ombudsman v Cheong (No 2)[2022] QCAT 354
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Cheong (No 2) [2022] QCAT 354 |
PARTIES: | director of proceedings on behalf of the health ombudsman (applicant) v IAN ROBERT CHEONG (respondent) |
APPLICATION NO/S: | OCR221-19 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 9 November 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Robertson |
ORDER/S: |
|
CATCHWORDS: | DISCLOSURE – COSTS APPLICATION – PRELIMINARY APPLICATION FOR DISCLOSURE OF DOCUMENTS AND OTHER ORDERS – where after a disciplinary hearing that was determined on 22 May 2022 with costs reserved the applicant seeks disclosure of respondents indemnity insurance policy and other documents and the filing of an affidavit by the respondent as to his financial circumstances – where the applicant knows that the respondent is insured as required by law – where respondent does not assert impecuniosity or that an adverse costs order would be overly punitive or occasion hardship – where the applicant’s application is not supported by any authority – whether the documents and things sought are relevant to the discretionary power of the Tribunal to order costs if required by the “interest of justice” – whether applicant’s application seeks irrelevant documents and/or is a fishing exercise Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 62, 102 Health Ombudsman v Cheong [2022] QCAT 18 Rao v Medical Board of Australia (No 2) [2021] QCAT 391 |
APPEARANCES & REPRESENTATION: | 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 Tribunal delivered judgement and reasons in the disciplinary referral on 22nd May.[1] Costs were reserved.
- [2]The applicant has now filed an application pursuant to section 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), seeking orders that the respondent produce a copy of his professional indemnity policy that responds to this proceeding; any letter or other document from or on behalf of his insurer confirming coverage for this proceeding; and/or an affidavit outlining his financial position, namely his assets and liabilities.
- [3]It is common ground that the applicant is aware that the respondent has disclosed to the Board that he has professional indemnity arrangements in place that accord with his obligations under the law.
- [4]The application on its face does not seek costs, but clearly this attempt to obtain documents or compel the respondent to file an affidavit is for that purpose. In addition, the parties agree on a set of directions pertaining to the determination of a costs application by the applicant.
- [5]The respondent opposes the application on a number of grounds including the fact that the applicant knows that the respondent is insured; and the respondent does not assert that he is impecunious and therefore the documents and actions sought in the application are irrelevant to the respondents financial circumstances as a factor that may be taken into account by the Tribunal[2] in deciding in a particular case whether to depart from the default position under the QCAT Act, that each party bear its own costs, and whether the interests of justice may require it to make an order for costs. The respondent also contends that in all the circumstances, the applicant’s application is a fishing exercise.
- [6]The applicant’s submission attached to its application does not refer to any authority in support of its argument that these documents and things may be relevant to enable the Tribunal to decide the proceeding with all the relevant facts.[3]
- [7]The only relevance asserted by the applicant to the “interests of justice” issue is a rather self-serving proposition (not supported by authority) that “as the financial circumstances of the respondent is a relevant consideration in determination on costs, it is submitted that the respondent’s indemnity cover, and the extent of that cover is also relevant.”
- [8]A party’s financial circumstances may be relevant to the interests of justice if, for instance, an adverse costs order may disproportionately or punitively effect a party because they are impecunious. The financial circumstances of a party may also be relevant to this issue if a costs order may cause hardship.
- [9]The respondent does not assert that he is impecunious or that an adverse costs order would cause undue hardship or be punitive. It is known that he is insured as required by his registration Board. This leads me to conclude that the attempt by the applicant to seek the documents and/or actions outlined in its application, is more relevant to the decision whether or not to seek costs rather than the “interests of justice”.
- [10]I agree with the submission made by Ms Robb by reference to what his Honour Judge Allen KC said in Rao v Medical Board of Australia (No 2) [2021] QCAT 391 at [23]-[24], that, because the respondent is insured and neither party asserts impecuniosity, their financial circumstances are a neutral factor in considering the “interest of justice” discretion in section 102(1).
- [11]In my view, rather than facilitate the speedy resolution of the issue of costs, the applicant’s application can fairly be described (as Ms Robb contends) as gratuitous and having the opposite effect. It is also regrettable in this vein, that the applicant, as a model litigant, delayed some 4 months after the conclusion of the disciplinary proceedings that it initiated, before making its application.
- [12]The application has no merit and is dismissed.
- [13]As the respondent agrees with a timetable to dispose of the costs issue I will make those orders but I will reserve costs of this application but provide a time limit as I should have done in May.
Orders
- [14]The orders and directions of the Tribunal are as follows:
- (a)the application for production of documents and other orders filed by the applicant is dismissed;
- (b)in relation to the costs of that application, they are reserved, but are subject to the timetable set out below;
- (c)the applicant file and serve its submission on costs by 4pm on the 16th November 2022;
- (d)the respondent file and serve his submission in response by 4pm on 23rd November 2022;
- (e)the applicant file and serve its submission in reply by 4pm on the 30th November; and
- (f)the Tribunal to determine all issues of costs on the papers.
- (a)