Health Ombudsman v Cheong[2023] QCAT 152

REASONS FOR DECISION

1. [1]
   On 22 May 2022, the Tribunal made a finding of professional misconduct and made disciplinary orders against the respondent.^[1] The hearing that day proceeded on the basis of a further amended referral filed with the Tribunal on 8 February 2021, and the respondent’s amended response filed on 24 February 2021. The referral related to the respondent’s treatment of six patients at various times over the years, 2003 to 2015.
2. [2]
   The hearing proceeded on the basis of an amended statement of agreed facts (ASOAF). As well as the disciplinary orders to which the parties agreed, with one minor exception, costs of the disciplinary proceedings were reserved. I did not set out a timetable for the determination of costs if either party made an application.
3. [3]
   Some four months later, the applicant filed an application pursuant to section 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), seeking orders that the respondent produce a copy of his professional indemnity policy and other documents, and file an affidavit relating to his financial position. I dismissed this application on 9 November 2022,^[2] and I was critical of the applicant as a model litigant in delaying the making of the application for a period of about four months.^[3]
4. [4]
   I accept that the parties have been negotiating on the issues of costs in the interim period which, to some extent, negates any criticism.
5. [5]
   On 17 November 2022, the applicant filed submissions on costs, and in support a 70-page affidavit which included annexures, by its solicitor, Andrew Forbes, affirmed that date (AAF).
6. [6]
   The applicant seeks an order that the respondent pay the applicant’s costs to be assessed on the District Court scale. Mr Forbes says his costs are in the order of $150,000 with the “party and party costs” component $100,000. The respondent seeks an order that the application be dismissed.

The statutory regime

7. [7]
   Section 100 of the QCAT Act provides that “other than as provided under this Act, or an enabling Act, each party to a proceeding must bear the parties own costs for the preceding”.
8. [8]
   Section 102(1) of the QCAT Act provides that the Tribunal may make a costs order if required in the interest of justice. Section 102(3) sets out certain (non-exclusive) matters that the Tribunal may have regard to in considering whether the interests of justice require an order for costs.
9. [9]
   The section 102(3) considerations include:

3. (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) ;

3. (b)
   the nature and complexity of the dispute the subject of the proceeding;

3. (c)
   the relative strengths of the claims made by each of the parties to the proceeding;

…

3. (e)
   the financial circumstances of the parties to the proceeding;

…

10. [10]
    Relevant principles include that:

    1. (a)
       the starting position for costs is that the parties bear their own costs.
    2. (b)
       the applicant is not prima facie entitled to costs by virtue of identity alone; and
    3. (c)
       the interests of justice are discrete to each matter.^[4]

Relevant background

11. [11]
    I adopt what I said in Cheong 1 about the protracted nature of the proceedings leading up to the May hearing,^[5] which are relevant to the issue of delay (in prosecuting the disciplinary proceedings).
12. [12]
    There is no question that the applicant was obliged to bring the proceedings to the tribunal and the respondent’s conduct (many years ago) was serious. Mr Forbes makes this submission:

13. [13]
    I accept that the respondent (in some respects as set out in Cheong 1) was reluctant to accept that he had behaved inappropriately, however, it is also very relevant that, as I noted in my reasons, the respondent, and the applicant both contributed to the delay.
14. [14]
    At [44] I wrote:

3. [44]
   As noted earlier, the chronology annexed to the applicant’s submission indicates that there has been very significant delay in bringing this matter to this point. The delay can be seen as having a number of components, namely, the delay between the original notification and the taking of immediate registration action and the filing of the first referral, and the delay between the filing of the first referral and the response and todays date, the final determination by the Tribunal.

15. [15]
    At this point, delay was relevant only as a matter in mitigation, and not to “anything else the tribunal considers relevant”^[6] on a costs application.
16. [16]
    I wrote at [47] - [51]:

3. [47]
   The applicant’s chronology does not include the reference to the immediate registration action taken as a result of that notification on the 15th of May 2017 which led to conditions being imposed prohibiting the respondent from prescribing schedule 4 restricted drugs. That immediate registration action and the conditions imposed as a result were lifted only a month later on 16 June 2017.

3. [48]
   The first referral to the Tribunal was on the 20th of June 2019, four years after the immediate action on the 9th of June 2015. In the applicant’s written submission, there was no concession to the effect that either the applicant or the OHO had contributed to that delay.

3. [49]
   Today, and in response to a question from me, Mr Forbes very fairly said, by reference to Health Ombudsman v Veltmeyer [2021] QCAT 77, that the period of time between the immediate registration action and the filing of the first referral was too long. Veltmeyer, was a quite different case, but, nevertheless, the issue of delay was regarded as important (in relation to mitigation) by the Tribunal in that case. It was a case involving allegations of boundary violations by a doctor in relation to a female patient. In a general sense, the factual basis was less complex than the factual basis here. However, the delay was in the same general timeframe. Notification was made in 2015, the respondent was not notified of it until 18 months later, and, when interviewed in 2017, he made full and frank admissions, and the matter was not referred to the Tribunal until June 2019. 

3. [50]
   In that case, the applicant acknowledged that there had been “some” delay and expressed its regret. The Tribunal was advised that the delay was attributed to “significant backlogs of matters in the Office of the Health Ombudsman and the Director of Proceedings.” In answer to further questions from me today, after his comment about the process being “too long,” Mr Forbes fairly made a similar concession in this case.

3. [51]
   On the other hand, he submits that the applicant’s failure to make the admissions he now makes contributed to the delay. In my view, the significant delay is neutral in the peculiar circumstances of this case, as the compromise came after extensive negotiations between the parties leading up to the final amended statement of agreed facts. The delay after the filing of the first referral should be regarded as the responsibility of both parties in all the circumstances. In saying that, I do not mean to reflect in a pejorative way on either party. Each party has given ground to effect a compromise.

17. [17]
    My reasons were not challenged on appeal and were not challenged, or even mentioned (as regards to costs) by Mr Forbes in his written submissions on costs.
18. [18]
    Mr Forbes is very critical of the respondent’s failure to compromise (as he was prior to the hearing), at an earlier stage. However, as I noted on a number of occasions in my reasons in Cheong 1, the compromise reached prior to their hearing meant the dispute between the parties’ experts was not able to be resolved, and the applicant had himself given considerable ground.^[7]
19. [19]
    At [16] of his cost submission, Mr Forbes sets out a number of factors “that have been taken into account in favour of an award of costs”. Ms Robb in her submissions, obliquely deals with this paragraph but, given the essential argument of the applicant, (set out at [21] of the submissions), it is useful to go behind some of those factors and look at the authorities cited.
20. [20]
    In support of the factor, “proceedings being prolonged by the practitioner’s denials of misconduct”, Mr Forbes relies on Health Ombudsman v Moosawi (No. 2) [2020] QCAT 461. What Mr Forbes does not say (and should have), is that the order for costs in that case was made by consent, following a three-day contested hearing before the Tribunal which found against him (including making adverse findings of credit against the practitioner), in Health Ombudsman v Moosawi [2020] QCAT 391.
21. [21]
    Again, by reference to “the defence of the matter being unmeritorious or proceeding needlessly complicated”, Mr Forbes refers to Health Ombudsman v Fletcher (No. 2) [2021] QCAT 241, where the applicant was successful in obtaining part of its costs fixed at $5 000. Mr Forbes appeared for the applicant in that case. As Judicial member McGill SC notes, (at [9]), although there was some late cooperation by the respondent, she had not assisted the investigation by the regulator and contested some allegations but admitted many. The hearing lasted two days and may have concluded in one day if there had been agreement. The case emphasises, that in considering the interests of justice, each case must be considered on its own merits. The hearing here occupied half a day, it did not involve the cross-examination of any witnesses (as occurred in Ferguson), and the parties agreed on sanction except for one minor condition.
22. [22]
    In support of the factor “whether the proceeding became unnecessarily protracted because of the practitioner’s conduct”, and “an inability of the practitioner to admit any failing”, Mr Forbes cites, Nursing Midwifery Board of Australia v Laughlan (No. 2) [2019] QCAT 250. Again, this is a completely different case and not comparable to the circumstances here. The practitioner contested the allegations at the primary hearing; the Tribunal made adverse credit findings against her, and she did not file any submissions on her own behalf, being self-represented.
23. [23]
    I accept that the applicant was obliged to commence the proceedings; it has never been suggested otherwise. I accept that the general observations made by Keane JA (as his Honour then was), in Tamawood v Paans [2005] 2 Qd R 101 at [32]-[33] still have applicability. What has to be kept in mind is the cost regime under the relevant applicable legislation. Although having some similarity to the legislative provisions here, in the legislation being considered in Tamawood, there was no provision such as section 100 of the QCAT Act.
24. [24]
    Here the proceedings were compromised by the parties, and each gave ground. The applicant did not pursue allegations made in the original referral that the respondent failed to make inquiries before prescribing; or failed to monitor patients’ use of the drug (in cases set out in the amended referral); failed to form a diagnosis; and failed to maintain adequate clinical medical records.^[8] These significant concessions made by the applicant are demonstrated by a comparison between the allegations accepted in the ASOAF,^[9] and the allegations as framed in the draft referral sent to the respondent’s lawyer by Mr Forbes on 26 February 2019.^[10]
25. [25]
    The respondent in turn made relevant admissions^[11] and admitted that his conduct amounted to professional misconduct. Apart from one minor issue, the parties agreed as to sanction.
26. [26]
    I accept that the proceeding involved some complexity, but this complexity was greatly mitigated by the compromise reached between the parties. As I noted in my reasons in Cheong 1, (given ex tempore), the parties were relying on expert reports from two general practitioners that could not be reconciled, but as a result of the compromise, it was not necessary for their differences of opinion to be resolved by the Tribunal, which certainly saved considerable time and expense.
27. [27]
    I do not accept that in the circumstances of this case, the interests of justice require the Tribunal to make an order for costs in favour of the applicant, in whole or in part. There is nothing in the circumstances of this case that overcomes the legislative presumption in section 100 of the QCAT Act.
28. [28]
    The Tribunal orders as follows:

3. 1.
   The application for costs is dismissed.

3. 2.
   If there is any application for costs of this application, the following timetable applies:

3. (a)
   any submissions to be filed and served within 14 days of today’s date;

3. (b)
   any submission required to be filed and served within 14 days of receipt of the submission referred to in (a);

3. (c)
   the application to be determined on the papers.