du Toit v Health Ombudsman [No 2]
[2024] QCAT 205
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- Unreported Judgment
- Appeal Determined (QCA)
- du Toit v Health Ombudsman [No 2][2024] QCAT 205
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du Toit v Health Ombudsman [No 2][2024] QCAT 205
du Toit v Health Ombudsman [No 2][2024] QCAT 205
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | du Toit v Health Ombudsman [2024] QCAT 205 |
PARTIES: | George du Toit (applicant) v Health Ombudsman (respondent) |
APPLICATION NO/S: | No. OCR 194 of 2022 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 29 May 2024 |
HEARING DATE: | On-Papers Hearing |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member J M Dick SC |
ORDERS: | The respondent pay the applicant’s costs of and incidental to the proceeding on the standard basis, to be assessed on the District Court scale of costs. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of immediate registration action under Health Ombudsman Act 2013 (Qld) ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – where the practitioner commenced review proceedings – where the Health Ombudsman was found to have acted improperly in imposing immediate registration action – approach to costs – whether the interests of justice require an order for costs – order for costs on the standard basis made Health Ombudsman Act 2013 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) du Toit v Health Ombudsman [2023] QCAT 373 Marzins v Health Ombudsman (No 4) [2020] QCAT 365 Tamawood Ltd v Paans [2005] QCA 111; [2005] 2 Qd R 101 |
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]On 15 November 2023, the Tribunal ordered that the Health Ombudsman’s decision of 27 June 2022 be set aside.[1] The applicant applies for an order for costs of and incidental to the proceedings on the standard basis, to be assessed on the District Court scale of costs.
- [2]Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that, other than as provided for under the Act, each party to a proceeding must bear its own costs. However, s 102(1) provides that the Tribunal may order costs if the Tribunal considers the interests of justice require it to make an order. Subsection (3) sets out various factors to which the Tribunal may have regard in considers whether to make an order.
Section 102(3) considerations and the Applicant’s submissions thereon
Whether a party has acted in a way that unnecessarily disadvantages another party.
- [3]The applicant submits that the Health Ombudsman acted to disadvantage him in the following ways:
- The Health Ombudsman received Dr Woodward’s (referred to as Dr Francis in the judgement) on 21 June 2022. Despite not making the decision under review until 27 June 2022, she did not provide Dr Woodward’s report to the applicant in the interim or invite submissions from him.
- The Health Ombudsman formed her belief largely based on the evidence of Dr Woodward, whose initial report was critical of the applicant’s management of 12 patients. Later, after reviewing 31 patients (including the initial 12) he provided a report critical of the applicant’s management of the patients, but with one of the original 12 not pressed. Five days before the hearing, that number was reduced to 10. In four of the five cases abandoned, the applicant was not the primary surgeon. This fact had been pointed out in a submission sent on 22 June 2022 and in an affidavit by the applicant filed on 23 March 2023. In any event, at the time of the impugned decision, the Health Ombudsman had in her possession records which showed the applicant was not the primary surgeon in the relevant cases. This resulted in the applicant’s expert having to address these patients and other wasted preparation.
- The Health Ombudsman sought to uphold her decision by reference to the power to take immediate action because it was “otherwise in the public interest” advancing the contention that concerns about the applicant’s performance had been “widely reported causing significant community anxiety” however, she did not lead evidence at the hearing of any media reporting.
The nature and complexity of the dispute
- [4]The parties agree that the matter was complex, in that:
- there was over 12,000 pages of evidence;
- the expert evidence included multiple reports from each expert, and ran to over 1100 pages;
- the expert evidence involved complicated medicine which required a careful analysis;
- there was 5 days of oral testimony; and
- the closing submission by each party ran to over 50 pages.
The relative strength of the parties’ claims
- [5]In its reasons, the Tribunal made no serious criticisms of the applicant’s performance or management and only mentioned his practice in relation to his note-taking and leadership, both of which he freely conceded and which the Tribunal said did not pose a serious risk to patients.
Whether the Applicant was afforded natural justice
- [6]The Health Ombudsman elected to embark on a separate process and take immediate action order without first complying with the show cause process provided by s 59 of the Health Ombudsman Act 2013 (Qld) (‘HO Act’).
The financial circumstances of the parties
- [7]The applicant’s legal fees have been covered by his medical indemnity insurer nevertheless, he has been unable to earn any income between the Health Ombudsman’s decision and the Tribunal’s decision. This caused significant financial hardship.
Other relevant matters
- [8]Prior to filing the review application, the applicant had proposed an extensive regime of conditions:
- prohibiting him being the primary surgeon; and
- ensuring that he was not the most senior person at his place of employment except in on-call or in an emergency
The Health Ombudsman did not accept the proposal.
The importance of the outcome to the applicant
- [9]It is obvious that the proceedings were exceptionally important to the applicant to restore his professional reputation and to gain employment.
The respondent’s submissions and the applicant’s reply
- [10]The respondent submits that there are considerations in this case making it in the interests of justice that the parties bear their own costs pursuant to s 100 of the QCAT Act.
Whether a party has acted in a way that unnecessarily disadvantages another party
- [11]The respondent says it provided a copy of Dr. Woodward’s report on 27 June 2022 when it advised the applicant of the decision to take immediate action, whereby the applicant was given the opportunity to review the report on 27 June 2022 and provide a response. The applicant says that natural justice requires the opportunity to be heard before the decision is made.
- [12]The respondent submitted it needed to act urgently in light of the information received that the applicant had been acting without restriction as a surgeon in New South Wales and was seeking employment at another hospital.
- [13]The applicant argues that the respondent’s power to take immediate action is territorially limited to a risk which might arise to persons in Queensland. This appears to refer to a presumption that parliament intended the act to operate within the territorial limits of Queensland. The Health Ombudsman says she took information from interstate but the immediate action was only to operate in Queensland. Nevertheless, if the other hospital mentioned was not in Queensland, it is difficult to see how the respondent could form a view he posed a risk in Queensland.
- [14]The applicant states he was not the primary care-giver in some of the patient cases. The respondent follows with an argument in details that although the applicant was not the primary surgeon in the cases mentioned, he had significant involvement in the care of those patients which resulted in adverse outcomes. The applicant says these submissions are ‘besides the point’ as the respondent did not advance a case that although the applicant was not the primary surgeon his conduct still posed a risk. The Tribunal, with the advantage of assessors was not asked to deliberate on the issue and cannot look behind that decision by the respondent.
Public interest
- [15]The respondent concedes that it not have direct evidence of the media reports surrounding the applicant however, referring to the applicant’s affidavit filed on 23 March 2023 regarding his asserted reputational damage, that there was some level of public awareness of the matter which was of a negative nature. The affidavit was well after the decision in 2022 and may well refer to a time after the immediate action was taken and does not assist the respondent in its submission.
Relative strength of the claims by each party and outcome
- [16]The respondent submits that it was reasonable to rely on the expert witness Dr Woodward even in circumstances where his opinion differed from the opinion of the applicant’s expert and the opinions had not been tested by cross-examination. The applicant argues that the respondent should have been aware of the errors that had been made by Dr Woodward when he wrongly attributed behaviour to the applicant when he was not the surgeon involved which was information available through the records.
- [17]In any event, the Tribunal hearing was not about the propriety of the respondent’s decision but a hearing de novo on the merits.[2]
- [18]Further, the applicant argues that it is not necessary to obtain an order for costs, for the applicant to demonstrate that the respondent could not have held a reasonable belief in making the decision or that she was unreasonable in persisting with her defence of the decision. The applicant need only show that costs should be ordered in the interest of justice.
- [19]The observation by the Tribunal that the “the landscape of the matter had changed significantly since the Health Ombudsman’s decision”[3] was just that — an observation meant to highlight that the hearing was de novo. The observation was not intended to signal an acceptance of the reasonableness of the respondent’s decision, as that was not a matter with which the Tribunal was concerned or heard argument about.
Authorities
- [20]I have found useful the comments by Judicial Member D J McGill SC in Marzins v Health Ombudsman (No 4):[4]
In my opinion the correct approach to the operations of s 100 and s 102 of the QCAT Act is similar to that formulated by the Hon P Lyons QC in Thompson v Cannon (supra): The ultimate question posed by the statutory provisions is whether in a particular case the interests of justice require the Tribunal to make a costs order. That is the effect of the terms of the statute. Because of the use in s 102(1) of the word “require”, the default position of no order as to costs should not be too readily departed from. I respectfully agree with the approach of the Hon J B Thomas QC in Lee (supra) to the comments of Keane JA in Tamawood (supra) …
I do not consider that there is any justification in the words of the statute for any further constraint on the operation of the power to order costs under s 102, although the section directs attention to a number of matters which may in a particular case be usefully considered. The reference to “any other matter the Tribunal considers relevant” shows that this list is not to be read in a confining sense. One matter which is relevant is that this proceeding is one where there was a right to legal representation.
- [21]In Tamawood Ltd v Paans,[5] Keane JA (as his Honour then was) concluded that there were three reasons why the Tribunal had erred in not awarding costs. His Honour said of the first of those reasons:
First, the Tribunal found that each party was justified in engaging the services of legal representatives to assist them in the conduct and defence of what the Tribunal recognised to be complex proceedings. That finding alone could be, in my view, a sufficient basis to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. The Tribunal erred in failing to appreciate the implication of this finding for an understanding of where the interests of justice lay in relation to the costs of the proceedings.
…
If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.
…In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, 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.[6]
Finding
- [22]In this case, the applicant was entitled to legal representation to assist him to litigate a complex matter. He was successful. There can be no criticism of him for pursuing his rights and despite the spirited defence of the respondent’s decision up to and including the Tribunal hearing. I cannot find the countervailing considerations sufficient to say it is not in the interests of justice to award the applicant costs.
Order
- The Respondent pay the Applicant’s cost of and incidental to the proceeding on the standard basis, to be assessed on the District Court scale of costs.