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Medical Board of Australia v Pawape[2023] QCAT 311

Medical Board of Australia v Pawape[2023] QCAT 311

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v Pawape [2023] QCAT 311

PARTIES:

medical board of australia

(applicant)

v

gibson pawape

(respondent)

APPLICATION NO/S:

OCR112-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

23 August 2023

HEARING DATE:

On-Papers Hearing

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

ORDERS:

  1. The application dated 22 June 2023 and filed 23 June 2023 and refiled with written submissions on 21 July 2023 to dismiss or strike out the referral is dismissed.
  2. The application dated 21 June 2023 and filed 23 June 2023 (including the applications filed 13 July 2023 and 21 July 2023) seeking an order for payment of costs is dismissed.
  3. The application for a compulsory conference filed 21 July 2023 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant Medical Board has referred the respondent practitioner to the Tribunal seeking disciplinary orders against the respondent – where in a separate application in the Tribunal’s review jurisdiction, the respondent previously applied to review a decision of the Medical Board – where the factual issues in both proceedings are similar – where the review proceeding has concluded, but the referral proceeding is ongoing – where the respondent seeks orders that the referral be struck out, the applicant pay him costs, and the matter be listed for compulsory conference – whether the Tribunal should make those orders

Health Practitioner Regulation National Law (Queensland) s 178

Queensland Civil and Administrative Tribunal Act 2009 ss 47, 68, 69, 100, 102

Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38

Cachia v Hanes (1994) 179 CLR 403

Elderslie Property Investments No 2 Pty Ltd v Dunn [2007] QSC 192

Pawape v Medical Board of Australia [2023] QCAT 262

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. [1]
    In this disciplinary referral filed on 24 April 2023 Dr Pawape has filed applications:
    1. To strike out the referral;
    2. For payment of costs; and
    3. For a compulsory conference.
  2. [2]
    Below are the Tribunal’s reasons for dismissing each application.

What is the referral about?

  1. [3]
    The referral contains the following allegations (expressed in summary terms):

Allegation 1 – breach of conditions

Practicing contrary to conditions in period 25 Feb – 7 March 2019 by the respondent practicing in Bundaberg without prior approval or an approved supervisor

Allegation 2 – breach of conditions

On 16 and 24 July 2020 the respondent practised contrary to conditions imposed on his registration in that he issued scripts in circumstances where he did not have a place of practice or supervisor approved

Allegation 3 – prescribing practices

On 16 and 24 July 2020 the respondent falsified details on a prescription (scripts changed from mother’s name to his name but for his mother – to obtain medication, avoid detection and used false and misleading information to access PBS)

Allegation 4 – breach of conditions

On each of 12, 15, 18 and 26 June 2021 the respondent practised contrary to conditions imposed because on each day he exceeded the maximum number of 30 patients

Allegation 5 – breach of conditions

Between 11 June and 30 September 2021, the respondent failed to comply with conditions in that he failed to maintain and provide AHPRA with a logbook of his patients

  1. [4]
    This referral is the second proceeding in the Tribunal involving, at least broadly, these factual issues. The first was an application by Dr Pawape to review the decision of the Medical Board of Australia to impose conditions on his general registration pursuant to section 178(2) of the Health Practitioner Regulation National Law (Queensland) (National Law).[1]
  2. [5]
    The Tribunal[2]:
    1. set aside the Board’s decision made on 1 February 2023;
    2. decided pursuant to s 178(1)(a)(i) of the National Law that it reasonably believes that the way in which the applicant practises the health profession and his professional conduct may be unsatisfactory;
    3. decided to take action pursuant to s 178(2)(c) of the National Law to impose conditions on the applicant’s registration in the terms set out in Exhibit 2; and
    4. gave liberty to apply within 14 days (collectively the Decision).
  3. [6]
    The effect of the Decision is that Dr Pawape is subject to conditions relating to limitations on practice, supervised practice; education, mentoring and auditing[3].
  4. [7]
    Dr Pawape has filed a response to the allegations in the referral. From the terms of that document, in very broad summary it appears:
    1. He disputes some factual matters (e.g. a reference in the referral to Townsville rather than Bundaberg in Ground 1 or that he complied with the logbook requirements by the provision by the practice manager to AHPRA of daily print outs in Ground 5);
    2. He accepts a number of the relevant factual matters (for example, that he wrote a prescription for medication for his mother- relevant to Grounds 2 and 3 or that he saw more than 30 patients in a day – relevant to Ground 4) and raises explanations or context for doing so which he regards as exculpatory or at least matters of mitigation;
    3. He disputes the characterisation of his actions and whether they constitute breaches of the relevant legislative provisions or professional Codes of Conduct; and
    4. He disputes the conditions currently placed on his registration. 

What should happen to the application to dismiss or strike out the referral?

  1. [8]
    Dr Pawape’s grounds are:
    1. There is much overlap and duplicity between the review proceeding and the referral;
    2. The suspension of his medical registration on 21 October 2021 was punishment enough for any breaches. He is still unemployed due to the onerous conditions even though his suspension was revoked on 15 December 2022. It is now nineteen months that he has been unemployed which is a severe punitive punishment;
    3. He has complied with AHPRA’s conditions over nineteen (19) months;
    4. A compulsory conference process is the way to address AHPRA’s anxiety not further litigation; and
    5. The real issue is the implementation; more punishment is not the solution given the evidence.
  2. [9]
    The Tribunal can dismiss or strike out a proceeding if it is frivolous, vexations, misconceived, lacking in substance or otherwise an abuse of process[4].
  3. [10]
    Dr Pawape, having made the application, has to satisfy the Tribunal that the Board’s case should be struck out without a hearing for one or more of these reasons. That is a high bar, because the Tribunal has to be satisfied that the Board has no real prospects of proving any aspect of the referral and that there is no need for a hearing[5].
  4. [11]
    The Tribunal has considered his submissions filed on 21 July 2023 carefully but is not satisfied that he has done so because:
    1. It is apparent from his responses that Dr Pawape accepts that a number of the factual matters which the referral relies on occurred. Whilst not expressing any view about the ultimate outcome of the referral, where it is likely that the Board will establish the factual mattes the subject of the allegations, (or at least some of them) there is a proper basis for the proceedings to be brought before the Tribunal and for there to be a hearing of it;
    2. The disciplinary referral is not a proceeding which engages the review jurisdiction of the Tribunal. It is a proceeding of a different character. As the Board submits, it is a proceeding directed to determining if the conduct alleged is made out on the evidence and, if it is, whether that conduct constitutes professional misconduct as defined in section 5 of the National Law. There is also the question of what if any sanction should be involved;
    3. Disciplinary proceedings are not punitive proceedings; they are instituted for a protective purpose consequent upon the guiding principle of the National Law set out in section 3A. 
  5. [12]
    The Tribunal therefore dismisses the application to strike out or dismiss the referral.

What should happen to the application for costs?

  1. [13]
    Dr Pawape made an application for costs in the following terms which was filed in the Tribunal on 23 June 2023:
    1. Legal costs: $AUD 10,000;
    2. Royal Australasian College of General Practice The Fellowship Support Programme (FSP) for two years: $AUD 60,000;
    3. Medical Indemnity: $AUD 30,000
    4. Damages and other deemed by Court or by a costs tribunal;
  2. [14]
    His reasons for the application are:
    1. These are essential costs that are beyond his ability to pay;
    2. “Since the vexatious allegation of assault in 2018 for which I was exonerated in NSW. With unfounded allegations of clinical incompetence have resulted in onerous conditions and nearly 5 years of hardship. Making it harder for me to work”
  3. [15]
    The subsequent application filed on 21 July 2023 (which contained the application of 23 June 2023 in unaltered terms) had documents attached to it containing various amounts. The Tribunal infers this is the evidence Dr Pawape relies on to support his application for costs.
  4. [16]
    The Tribunal’s powers to order costs are conferred by the QCAT Act. Relevantly:
    1. Section 100 provides that other than as provided under the QCAT Act, each party to a proceeding must bear their own costs for the proceeding;
    2. Section 102(1) provides the Tribunal may order 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 be made;
    3. Section 102(3) sets out factors which the Tribunal may have regard to in deciding whether to award costs.  
  5. [17]
    The Board contends the application is premature as the referral has not been determined. The Tribunal accepts that submission. The referral is, presently, in the stages of preparation to bring it to a hearing.
  6. [18]
    It is not possible to determine what the interests of justice require until the referral is heard and determined.
  7. [19]
    However, in this application, the bulk of the costs Dr Pawape seeks (the costs of the College Programme and medical indemnity) are not costs which would be recoverable pursuant to section 100 of the QCAT Act[6], even if, at a point of time in the future, the Tribunal had determined the referral and further determined that the interests of justice required an order for costs to be made against the Board. 
  8. [20]
    In respect of the aspect of the application seeking legal costs, at this point the Tribunal notes that Dr Pawape is representing himself in the referral proceeding and has done so since the referral commenced.
  9. [21]
    The application for costs is dismissed.

What should happen with the application for a compulsory conference?

  1. [22]
    Doctor Pawape has also filed an application for a QCAT facilitated compulsory conference.
  2. [23]
    He has done so “as a matter of principle to resolve the disparity through a mediated compulsory conference between the applicant (the Medical Board of Australia) and the respondent (Dr Gibson Pawape).”
  1. [24]
    His reasons for the application are:
  1. (a)
    In principle it boils down to much quoted patient safety and public protection;
  1. (b)
    The cases he has submitted cases #1, case#10, the stroke case and much more are crying out for Justice, cases missed by my other colleagues with near fatal consequences but I safed (sic) them;
  1. (c)
    There are no new evidences for the applicant’s lawyer to relitigate the case over safety of patient or public protection. Over the last 21 months there is abundant evidence of my safety, best practice and compliance to the AHPRA conditions;
  1. (d)
    Having a compulsory conference is the humane, fair and just way to consider a rehabilitative and supportive posturing to let me be the best I am once more.
  1. [25]
    The Tribunal has a discretion to order the parties to attend a compulsory conference[7].
  2. [26]
    The purposes for a compulsory conference are to identify and clarify the issues in dispute, to promote a settlement of the dispute, to identify questions of fact and law to be decided by the Tribunal, if the proceeding is not settled, to make orders and give directions about the conduct of the proceeding and to make orders and give directions the person presiding over the conference considers appropriate to resolve the dispute the subject of the proceeding[8].
  3. [27]
    Given the material which Dr Pawape has filed in support of his interlocutory applications, the Tribunal is not persuaded that a compulsory conference would progress the matter towards resolution. Rather, to require the parties to attend a compulsory conference, given the time which will elapse before a date for such a conference can be obtained, will likely delay the finalisation of the referral.
  4. [28]
    The Tribunal notes the parties have already filed a bundle of agreed documents and the Board has filed material on 4 August 2023 in compliance with the Tribunal’s directions. Whilst there was a direction to file a statement of agreed and disputed facts by 21 July 2023, none was filed.
  5. [29]
    The steps outstanding under the current timetable are for:
    1. Doctor Pawape to file and serve a copy of any further material he seeks to rely on by 25 August 2023;
    2. The Board to file and serve written submissions by 15 September 2023;
    3. Dr Pawape to file and serve written submissions by 6 October 2023;
    4. the Board to file and serve written submissions in reply by 13 October 2023;
    5. the parties to file a hearing bundle by 20 October 2023; and
    6. the matter to be listed for hearing thereafter.
  6. [30]
    Those directions appear to the Tribunal to be apposite to getting the matter to a position where it can be heard and determined as quickly as possible.
  7. [31]
    The Tribunal dismisses the application for a compulsory conference.
  8. [32]
    The Tribunal urges the parties to comply with the existing directions timetable, so that the referral can be listed for hearing and determination as soon as practicable for all concerned.

Footnotes

[1]Pawape v Medical Board of Australia [2023] QCAT 262

[2]  Ibid at [137]

[3]  Ibid at [3], [135] and Exhibit 2

[4]  Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act)

[5]  See Elderslie Property Investments No 2 Pty Ltd v Dunn [2007] QSC 192 at [6]-[7] applied in the Tribunal in Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38

[6]Cachia v Hanes (1994) 179 CLR 403

[7]  Section 68(1) QCAT Act

[8]  Section 69 QCAT Act

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v Pawape

  • Shortened Case Name:

    Medical Board of Australia v Pawape

  • MNC:

    [2023] QCAT 311

  • Court:

    QCAT

  • Judge(s):

    Judge Dann

  • Date:

    23 Aug 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38
2 citations
Jump To
Cite 1 - [2019] QCAT 38
Cite 2 - [2019] QCAT 38
Cachia v Hanes (1994) 179 CLR 403
2 citations
Jump To
Cite 1 - (1994) 179 CLR 403
Cite 2 - (1994) 179 CLR 403
Elderslie Property Investments No 2 Pty Ltd v Dunn [2007] QSC 192
2 citations
Jump To
Cite 1 - [2007] QSC 192
Cite 2 - [2007] QSC 192
Pawape v Medical Board of Australia [2023] QCAT 262
2 citations
Jump To
Cite 1 - [2023] QCAT 262
Cite 2 - [2023] QCAT 262

Cases Citing

Case NameFull CitationFrequency
Medical Board of Australia v Pawape (No. 2) [2024] QCAT 1412 citations
1

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