RDH v Medical Board of Australia
[2025] QCAT 151
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- Unreported Judgment
- RDH v Medical Board of Australia[2025] QCAT 151
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RDH v Medical Board of Australia[2025] QCAT 151
RDH v Medical Board of Australia[2025] QCAT 151
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | RDH v Medical Board of Australia [2025] QCAT 151 |
PARTIES: | RDH (applicant) v Medical Board of australia (respondent) |
APPLICATION NO/S: | OCR141-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 9 May 2025 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Rinaudo AM |
ORDERS: | IT IS THE DECISION OF THE TRIBUNAL THAT:
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – where the respondent Board suspended the applicant practitioner’s registration – where the applicant practitioner sought a review of the respondent Board’s decision before the Tribunal – where the Tribunal found in the applicant practitioner’s favour and set aside the suspension and imposed conditions on his registration instead – where further submissions were filed as to costs – where s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides the starting point for costs in the Tribunal – where s 102 gives the Tribunal power to make a costs order if it is in the interests of justice – whether the Tribunal should make a costs order Queensland Civil and Administrative Tribunal Act 2009 (Qld) Health Practitioner Regulation National Law (Queensland) Brisbane Marine Pilots Pty Ltd (in liq) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225 Campbell v Queensland Building and Construction Commission (No 2) [2023] QCAT 54 Health Ombudsman v Du Toit [2024] QCA 235 Lee v Medical Board of Australia [2022] WASAT 28 Lee v Medical Board of Australia (No 2) [2016] QCAT 321 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 and Medical Board and Wong [2017] QCA 42 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Tamawood Ltd v Paans [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
Application
- [1]The applicant seeks costs pursuant to s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
- [2]The Medical Board of Australia (‘Board’) suspended the applicant’s registration on 8 May 2023. The applicant sought review of that decision. On 16 November 2023, the Tribunal set aside the suspension and instead imposed conditions on the applicant’s registration.
- [3]The applicant submits that the Board failed to properly take into account decided cases and unreasonably rejected submissions that the Board would accept conditions which were ultimately more onerous than imposed.
History
- [4]The applicant has practised as a medical practitioner since 2005. He practised first in Northern Ireland and since 2010 in Australia. Before this he had no relevant notification history.
- [5]On 26 January 2022, the applicant’s wife and her new partner complained that the applicant assaulted them. The applicant told police that his wife and her partner were the aggressors. Initially no charges were laid. The applicant’s wife complained to the Health Ombudsman on 12 February 2022.
- [6]Although initially advising on 25 July 2022 that the Board proposed to suspend the applicant, the Board decided not to take any immediate action on 9 August 2022.
- [7]On 28 February 2023, the applicant was charged with four offences arising out of the alleged domestic violence incident on 26 January 2022.
- [8]On 1 May 2023, the Board indicated it intended to suspend the applicant’s registration and did so on 8 May 2023. In exercising its powers under s 156(1)(a) and (e) (the serious risk and public interest limbs, respectively) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’), the Board’s suspension was by way of immediate action.
- [9]The applicant accepted that immediate action may be taken under the public interest limb but disputed that the serious risk limb was established.
- [10]It is not necessary to set out here a detailed review of the allegations and counter allegations. It is sufficient to say that the allegations are very serious involving domestic violence.
- [11]It is noted that initially the Board decided not to proceed with immediate action based on the various untested accounts of the parties at the time. Action was taken after charges were laid by police, more than a year after the alleged events occurred.
The applicable law
- [12]The Tribunal’s power to award costs is contained in Division 6 of the QCAT Act.
- [13]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 party’s own costs for the proceeding.
- [14]Section 102(1) provides:
The tribunal may make and 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 make the order.
- [15]Sec 102(3) sets out the factors the Tribunal may have regard to in deciding whether to award costs. These are listed as:
- 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);
- the nature and complexity of the dispute the subject of the proceeding;
- the relative strengths of the claims made be each of the parties to the proceeding;
- for a proceeding for the review of a reviewable decision –
- whether the applicant was afforded natural justice by the decision-maker for the decision; and
- whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
- the financial circumstances of the parties to the proceeding;
- anything else the tribunal considers relevant.
- [16]The parties agree that the application be determined on the papers.
Submissions of the parties
- [17]The applicant submits that:[1]
the Board failed to appreciate the effect of decided case in which it was a party and unreasonably rejected a submission by [the applicant] indicating that he would accept conditions which were more onerous than those ultimately imposed by the Tribunal.
- [18]The applicant relied on the decisions of Marzini v Health Ombudsman (No 4) [2020] QCAT 365 (‘Marzini’) and Lee v Medical Board of Australia (No 2) [2016] QCAT 321 to support the proposition that complexity requiring legal representation could be sufficient basis to award costs.
- [19]In respect of awarding costs generally, the applicant made substantial submissions, particularly in his reply submissions, as to the divergence of views between what has been described as the older approach and the newer approach. These are described as:[2]
The older approach:
section 100 is the usual role (a starting point) which, when read with section 102, means that each party bears their own costs unless the interests of justice require otherwise (as explained in McGee). So the question that will usually arise is whether the circumstance is relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in section 100.[3]
The newer approach:
… the starting point is that no order for costs is to be made, but authorises a cost order if the interest [sic] of justice require it. The use of the word “require” suggests that the interests of justice must clearly support a costs order; but to say that it must do so “compellingly”, and to treat s 100 as having “a strong contra-indication against cross orders”, is to read into the statutory discretion restrictions which are not based on the terms of the Act.[4]
- [20]The applicant submits that there is as a result some uncertainty in the correct approach and urges that the doctrine of precedent should be followed. The applicant noted the most recent decision of then Deputy President Judge Allen KC in CH v Queensland Police Service [2021] QCATA 137 rejecting the older approach in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 (‘Ralacom’) should be followed. In allowing the appeal the Deputy President noted:[5]
I consider that the Tribunal, in the adoption of the quoted comments on the then President in [Ralacom], unduly constrained the discretion to be exercised pursuant to s 102 of the QCAT Act in determining the applicant’s application for costs of the proceeding. The Tribunal acted upon a wrong principle and erred in law in so doing.
- [21]His Honour had considered and agreed with the newer approach of Judicial Member McGill SC in Marzini and Cowen v Queensland Building and Construction Commission [2021] QCATA 103 (‘Cowen’) and agreed with his approach in those cases.
Decision of Health Ombudsman v Du Toit [2024] QCA 235 (‘Du Toit’)
- [22]Since considering the question of costs on the basis of the authorities set out above the Court of Appeal has delivered its decision in Du Toit. It is submitted that this decision settles the authorities in favour of the newer approach which I had determined was the correct approach in any event.
- [23]It submitted that as the applicant was entitled as of right to legal representation, the strong merits of the applicant’s review, then extensive submissions by the applicant at the show cause stage, the Board’s maintenance of its position and its rejection of the applicant’s offer – that he would accept conditions more restrictive than ultimately imposed – and the public interest in encouraging prudent use of the Board’s finances, all weight in favour of an order for costs.
- [24]
where the nature of the review proceedings is such as to necessitate the need for legal representation, the QCAT Act contemplates a readiness to depart from the general position relevant to minor civil disputes (that is, no order as to costs) in favour of an approach more aligned with conventional litigation.
- [25]With this in mind, addressing the criteria set out in s 102, the Board submits it could not be said that the Board has acted in a way that unnecessarily disadvantaged the applicant. This factor is neutral.
- [26]The nature and complexity, noting that the parties were entitled to legal representation as of right was a factor in favour of an order for costs, is not sufficient of itself to award costs.
- [27]The merits favour the applicant as he was wholly successful in obtaining the relief he sought except for an additional mentoring condition imposed by the Tribunal itself, which the applicant did not oppose. The Board had relied on the decision of Lee v Medical Board of Australia [2022] WASAT 28 (‘Lee’) to support a suspension despite that action being rejected in Lee. The Board’s oral submission that the applicant was not in the same financial position as Lee was rejected on the basis of evidence in the applicant’s affidavit. The Board did not rely on any comparable decisions where suspension was found to be the least onerous action necessary. The applicant submitted that this consideration weighs strongly in favour of an order for costs.
- [28]It is accepted that the applicant was afforded natural justice. This factor is neutral.
- [29]The applicant, in an attempt to enable the Board to make the correct decision, provided detailed submission on 3 August 2022 (in response to the first notice of proposed immediate action) and on 5 May 2023. This weights in favour of an order for costs.
- [30]The applicant has suffered significant financial hardship as a consequence of the Board’s decisions. It is submitted that it is in the interests of registrants that the Board give proper consideration to the prospects of defending proceedings of this kind and that it make decisions which are legally defensible so as to avoid unnecessary expenditure of registrants’ fees.[7]
- [31]The Board showed no willingness to compromise.
- [32]The applicant noted that the extensive submission of the applicant at the show cause stage, the Boards refusal to move from its position of that a suspension was correct, and the public interest in encouraging prudent use of the Board’s finances were all factors in favour of an order for costs.
- [33]It was submitted that the appropriate order is that the Board pay the applicant’s costs on the standard basis to be assessed if not otherwise agreed.
- [34]The Board submitted that it did not act unreasonably in taking the position it took to seek suspension. The interests of justice do not require an order for costs.
- [35]The Board submitted that the older approach was to be followed relying on Brisbane Marine Pilots Pty Ltd (in liq) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225, Ralacom and Medical Board and Wong [2017] QCA 42, noting the Court of Appeal at [35] and [37]:
There was no respect in which the Board’s position was identified as unreasonable, in pressing for the conditions which it proposed. Absent any finding of unreasonableness, there could not have been a bias for departing from the default position, according to s 100, that each party bear its own costs.
…
It must be kept in mind that the Board has a statutory responsibility for the protection of the public in this context and the fact that the outcome was not that which was sought should not of itself burden the Board with an order for costs, especially in a proceeding in QCAT where the starting position is that prescribed by s 100. I would add that the Board’s concern for the protection of the public in the present case was clearly reasonable from Dr Wong’s very serious misconduct in 2012.
- [36]In respect of the factors set out in s 102 the Board made the following submissions.
- [37]The fact of legal representation being reasonably necessary because of special need, complexity of the behaviour of another party is a factor in favour of, but not conclusive of, costs.
- [38]The real issue is whether the applicant can show that the Board’s decision was unreasonable. The Board suspended the applicant’s registration after it formed a reasonable belief that, because of the alleged conduct, he posed a serious risk to persons and that the immediate action is necessary to protect public health and safety, and it was otherwise in the public interest to do so. Noting that the allegations involved domestic violence by a general practitioner in the presence of children, the Board’s belief was not unreasonable. It was not unreasonable for the Board to rely on the case of Lee as the facts were similar, although there were also distinguishing factors. In Lee it was submitted that the practitioner was facing ‘devastating’ hardship. The Board submits that Dr Lee’s circumstances were no worse that the applicant’s.
- [39]The Board submits that because the Tribunal formed a view different to the Board does not demonstrate that the Board’s position was so unreasonable or untenable as to justify an order for costs.
- [40]It is agreed that the factor of affording natural justice is neutral to the issue of costs.
- [41]The Board submits that there is no evidence to suggest it pursued the matter without merit or consideration, or wasted the applicant’s funds. In proceedings of this kind, the starting point is that parties are to bear their own costs. The board should not have to shy away from difficult or uncertain decisions in fear of the risk that costs might be awarded against it if decisions are set aside. It is submitted that, in keeping with its rules as a regulator, it had proper regard to the objects and overarching principles in the National Law and the policy directions of the Ministerial Council.
- [42]It is submitted that it would not be a just outcome to punish the Board for carrying out its regulatory role because the relevant registrant is experiencing difficult financial circumstances.
- [43]The Board also noted that in proceedings of this type:
Even if an agreed position is reached as to the facts or even sanction, the ultimate result must be determined by the Tribunal. A proceeding by a regulatory body is not usually regarded as one which could be ‘settled’. The concept of an order which is more favourable to the other party is also not apt to describe the situation of a statutory regulator.
- [44]The Board submits that the circumstances do not justify any order for costs being made. The decision of the tribunal should be no order as to costs.
Discussion and decision
The Test
- [45]It is plain from the submissions set out above that there are two lines of authority about how to approach applications for costs under ss 100 and 102 of the QCAT Act. These are referred to as the older approach and the newer approach. In short compass the first approach limits the scope of applications for costs as it imposes a test that requires (1) a strong contra-indication against costs orders in s 100; and 2) that the test to contra-indicate must not only be in the interests of justice but compellingly so.
- [46]As those decision-makers that have applied the newer approach point out, the use of the words ‘compellingly’ and ‘strong contra-indication’ “is to read into the statutory discretion restrictions which are not based on the terms of the Act”.[8]
- [47]Whilst I am sure the divergence of view will be decided by the Court of Appeal at some stage for present purposes it seems to me to be largely an academic argument. Each case will be different on its facts and will turn on the Tribunal weighing the factors in s 102 as appropriate. Clearly s 100 provides that:
other than provided under this Act … each party to a proceeding must bear the party’s own costs for the proceeding.
- [48]The starting point is therefore each party bears its own costs unless otherwise ordered by the Tribunal.
- [49]Section 102(1) provides:
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 be made.
- [50]In Marzini after an examination of the authorities including Tamawood Ltd v Paans [2005] 2 Qd R 101 and Ralacom, Judicial Member McGill SC expressed the test adopting the test formulated by the Honourable P Lyons QC in Thompson v Cannon [2020] QCAT 109 in the following terms:[9]
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 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.
- [51]Until the matter is dealt with finally above, this seems to me to be as high as the test should go. In any event, for the reasons below even adopting this test, which could be described as the lower test has not been met in the circumstances of this case.
Consideration of the s 102 factors
- [52]S 102(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 s 48(1)(a) to (g).
- [53]It is agreed that there has not been any unnecessary disadvantage by the Board in this case. Although the Board argues that this consideration weighs against an order for costs, I consider it at least neutral.
- [54]S 102(3)(b):
the nature and complexity of the dispute the subject of the proceeding.
- [55]It is argued that as the applicant was entitled to legal representation as of right the matter is complex. The issue in these types of proceedings is essentially aimed at the practitioner continuing to remain on the role and practising. They are disciplinary proceedings. This case concerns action taken by the Board in response to a notification of the commission of a crime. On its face, in so far as the Board was concerned, the conduct involved a particularly violent and bloody home invasion with domestic violence happening in front of children. The Board has an obligation to take action to protect the public. I accept the Board’s submission that the nature of the proceedings requires legal representation rather than the complexity of the proceedings.
- [56]I accept the Board’s submission that the proceedings being one where legal representation is reasonably necessary because of special need, complexity or behaviour of another party is a factor in favour of, but not conclusive of, costs. In this case I find that is not a factor that would be sufficient to make an order for costs.
- [57]S 102(3)(c):
the relative strengths of the claims made by the parties to the proceeding.
- [58]It is not correct of the applicant to argue that “he was wholly successful in obtaining the relief sought, except for an additional condition requiring mentoring.” It could not be said that in those circumstances the Board’s decision was unreasonable as it was in the public interest.
- [59]It is more appropriate to say that the Tribunal took the view in all the circumstances that the sanction proposed by the Board, whilst clearly in range, could be ameliorated by a period of supervision having regard to the way the allegations had played out since they were made. Initially the applicant showed cause and no immediate action was taken. Some 12 months later, charges were laid and the Board imposed immediate action. The Tribunal took this into account.
- [60]Whilst the decision of Lee was relied on as a comparable sanction, it is trite to say that any authority must be considered in the light of the circumstances of the current case. Lee was a comparable case provided by the Board. It was available to the Tribunal to consider. In the circumstances of the case the Tribunal considered that given the decision the option of supervision was available as an appropriate sanction.
- [61]This is not a factor which would be sufficient to award costs.
- [62]S 102(3)(d)(i) and (ii):
whether the applicant was afforded natural justice by the decision-maker for the decision; and
whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits.
- [63]As to s 102(3)(d)(i), the parties agree this a neutral consideration.
- [64]As to s 102(3)(d)(ii), the applicant submits that he genuinely attempted to assist the Board by making detailed submissions in respect of both of the notices, which the Board accepts. The applicant submits that this consideration weighs in favour of an order for costs. Having legal representation, one might expect a detailed submission in this type of administrative action. It is not unusual for such detailed submissions to be made by legal representatives. It is accepted that the submissions were designed to genuinely assist the decision-maker to make a decision on the merits. To that end this is not a factor which is in favour of an award for costs, but not conclusively so.
- [65]S 102(3)(e):
the financial circumstances of the parties to the proceeding.
- [66]It is accepted by the tribunal that the applicant suffered “significant financial hardship” as a consequence of the actions taken by the Board. However, this is not an unusual circumstance of this type of proceeding. It cannot be said that the Board should make decisions based on its capacity to bear the cost.
- [67]This is not a case where the applicant found himself in a position in which he had played no part. It is irrelevant to the Board that he may eventually not face charges or be acquitted of them. The Board is charged with carrying out its regulatory responsibilities without regard to the financial circumstance of the registrant. In those circumstances this is not a factor which would support an award for costs.
- [68]S 102(3)(f):
Anything else the tribunal considers relevant.
- [69]The applicant submits that he had:[10]
offered to accept conditions on his registration in the form of indirect supervision and a chaperone, which would have been more restrictive that the conditions imposed by the Tribunal.
- [70]There is no doubt that in proceedings of this type, offers to compromise will be made some more favourable than might be expected and some less. The fact that offers are made which ultimately might be shown to be appropriate is not the answer. It might be in, say, a personal litigation proceeding. But here we are dealing with a regulator who must comply with its regulatory obligations. It is an answer to say that the Tribunal has the final say. There may well be occasions where it can be established having regard to the test that the Board has been unreasonable, or an approach taken by the Board is simply wrong, but this not such a case.
- [71]If the Board is going to look over its shoulder to a possible costs order, where it can be said that they have acted contrary to their obligations or not in the interests of justice, then clearly an award of costs may well be appropriate. But again, that is not the case here.
- [72]I am satisfied that the Board in this case was well within its rights and obligations to maintain its position until the Tribunal considered the matter.
- [73]In the circumstances, it is not in the interests of justice to make an award of costs in this case.
- [74]Accordingly, the order of the Tribunal is that there be no order as to costs.
Footnotes
[1]Applicant’s written submissions filed in the Tribunal on 11 December 2023 (‘Applicant’s costs submissions’) [2].
[2]Ibid [5].
[3]Brisbane Marine Pilots Pty Ltd (in liq) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225 [150].
[4]Campbell v Queensland Building and Construction Commission (No 2) [2023] QCAT 54 [15] (‘Campbell’).
[5]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 [15] (‘Ralacom’).
[6]Applicant’s further costs submissions filed in the Tribunal on 4 February 2025 (‘Applicant’s further costs submissions’) [3(c)], citing Health Ombudsman v Du Toit [2024] QCA 235 [44].
[7]Applicant’s costs submissions (n 2) [9(f)].
[8]Campbell (n 4) [15] (Member Lumb) quoting Marzini v Health Ombudsman (No 4) [2020] QCAT 365 [17] (Judicial Member McGill SC).
[9]Thompson v Cannon [2020] QCAT 109 [36]-[37].
[10]Applicant’s costs submissions (n 2) [9(g)].