Tsigounis v Medical Board of Queensland (No.3)
[2005] QDC 177
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- Tsigounis v Medical Board of Queensland (No.3)[2005] QDC 177
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Tsigounis v Medical Board of Queensland (No.3)[2005] QDC 177
Tsigounis v Medical Board of Queensland (No.3)[2005] QDC 177
![Tsigounis v Medical Board of Queensland (No.3) [2005] QDC 177](/judgmentview/image?name=316135.001.png&id=316135)
DISTRICT COURT OF QUEENSLAND
CITATION: | Tsigounis v Medical Board of Queensland (No.3) [2005] QDC 177 |
PARTIES: | TSIGOUNIS, Helen Appellant Against MEDICAL BOARD OF QUEENSLAND Respondent |
FILE NO: | 1136 / 04 |
DIVISION: | Appellate |
PROCEEDING: | Appeal from decision of the Medical Board of Queensland. Judgment on further directions to be given to the Medical Board. |
DELIVERED ON: | 12 July 2005 |
DELIVERED AT: | Townsville |
HEARING DATES: | 23-25 August 2004, 31 January, 1-4 February, 7-11 February, 7 April 2005. Written submissions received on 13 & 18 April 2005. Written submissions on costs received on 24 & 25 May and 17 June 2005. Written submission on directions received on 24 June & 1 July. |
JUDGE: | C.F. Wall Q.C. |
ORDERS: | Orders as indicated on the 11 May 2005 with an additional direction to the Board that the appellant undertake the prescribed internship at a hospital other than the Townsville Hospital. |
CATCHWORDS: | APPEAL – FURTHER ORDER – appeal against cancellation of appls registration – appeal allowed – appls internship extended – wh. power to vary conditions of appls registration - no issue on appeal about those conditions – no power to vary them – wh. power to make further direction to give effect to judgment. Legislation referred to: Medical Practitioners Registration Act 2001 (Qld) ss. 94(1), 239, 240 Medical Practitioners Registration Regulation 2002 (Qld) s. 4 Acts Interpretation Act s. 32C |
COUNSEL: | Mr M. J Ward for the Appellant Mr D. Tait S.C for the Respondent |
SOLICITORS: | Gateway Lawyers for the Appellant Phillips Fox for the Respondent |
HIS HONOUR: On the 11th of May 2005 I allowed the appellant's appeal, see Tsigounis v. Medical Board of Queensland (2005) QDC 103. I then adjourned the further hearing of the appeal to allow further submissions from the parties as to any directions to be given to the Board under section 240(1)(d) of the Medical Practitioners Registration Act 2001. I have now received those submissions.
The directions I had in mind are referred to in paragraph [289] of the judgment delivered on the 11th of May 2005.
Section 240(1), (2), (3), (4) and (5) provide as follows:
"240 Powers of court on appeal
(1) In deciding the appeal, the court may -
- (a)confirm the original decision; or
- (b)amend the original decision; or
- (c)substitute another decision for the original decision; or
- (d)set aside the original decision and return the issue to the board with the directions the court considers appropriate.
- (2)In substituting another decision for the original decision, the court has the same powers as the person who made the original decision. Example - The court may decide that an unsuccessful applicant for general registration be registered either unconditionally or on particular conditions.
- (3)If the court amends the original decision or substitutes another decision for the original decision, the amended or substituted decision is, for this Act (other than this part) taken to be the decision of the person who made the original decision.
- (4)If the court decides to impose conditions on a registration, the court must -
- (a)state the reasons for the decision; and
- (b)if the registration is a general registration or specialist registration, decide and state the review period applying to the conditions.
- (5)If the court decides to impose conditions on a registration because of the registrant's mental and physical health, it must also decide whether details of the conditions must be recorded in the register for the period for which the conditions are in force."
Section 239(1) of the Act provides:
"239 Hearing procedures
(1) In deciding the appeal, the court -
- (a)has the same powers as the person who made the original decision; and
- (b)is not bound by the rules of evidence; and
- (c)must comply with natural justice.
- (2)The appeal is by way of rehearing, unaffected by the original decision, on the material before the person who made the original decision and any further evidence allowed by the court."
If the Court acts under section 240(1)(c) then, by reason of section 240(2), the Court has the same powers as the Board. I did not act under section 240(1)(c).
The Board submits that the Court has no greater powers in this matter than the Board would have and the Board has no power to "redesign" the conditions of the appellant's registration. It relies upon section 239(1)(a). "Redesign" is used in the sense of adding to, changing or amending the existing conditions of the appellant's registration.
In the alternative, if there is power to impose conditions or direct the Board to do so, the Board has provided a suggested list of what those conditions should be. See annexure "A" to the Board's written submissions, Exhibit 74.
The appellant submits that
"the construction contended for by the respondent is inconsistent with the powers contained in section 240 which includes in subsections (4) and (5) the power to impose or vary conditions on a registration."
Subsections (4) and (5) of section 240 appear to be of general application, unlinked to earlier provisions of the Act. For example, section 240(4) does not appear confined to an appeal against the imposition of conditions under section 59, and section 240(5) does not appear confined to an appeal against the imposition of conditions imposed because of the registrant's medical and physical health under section 48.
Subparagraphs (a) to (d) of section 240(1) are expressed disjunctively, whereas subparagraphs (a) to (c) of section 239(1) are conjunctive. The Court, in deciding an appeal, may either confirm the decision of the Board, amend it, substitute another decision for it, or set it aside. It appears that it can do only one of those and not more than one.
Section 240(1) says nothing about imposing or varying conditions and does not impose any limits on the directions the Court can give to the Board other than that they must be considered by the Court to be "appropriate".
I do not think that section 239(1)(a) is intended to limit the powers conferred by section 240, rather it merely confirms that the Court has, in deciding an appeal, at least the same powers as the Board had in the first place.
There must, though, one would think, be some limit to the conditions which may be imposed pursuant to section 240(4). What that limit should be is at the core of the present argument. The Board submits that no different conditions can now be imposed on the appellant's registration, notwithstanding that the evidence suggests otherwise, and the appellant submits that conditions can be imposed which would be less onerous than those now suggested by the Board and those currently applying to her registration.
I think the answer is dependent on the form of the original decision of the Board, that is, the decision under appeal. If that decision includes conditions and the appropriateness or otherwise of those conditions is the subject of the appeal (see, for example, sections 57, 58, 59 and 99(2)(b)), then I think that if the Court amends the original decision or substitutes another decision for it the Court can exercise the power conferred by section 240(4), otherwise it cannot.
Likewise, if the Court acts under section 240(1)(d) on a "conditions" appeal and gives directions to the Board, those directions would be as to the type of conditions the Board should impose. In my view, the power conferred by section 240(4) would, in such a case, include a power to give directions to the Board in relation to the imposition of conditions.
In the present case the appellant appealed against the decision of the Board to cancel her registration because it was not satisfied she had satisfactorily completed her internship and would not satisfactorily complete an extended period of internship. There was no appeal against the probationary conditions which had been imposed on her registration. See section 94(1) set out at paragraph [32] of the judgment delivered on the 11th of May 2005. See also section 94(4).
For these reasons and notwithstanding that the evidence supports the imposition of conditions such as those suggested by the Board in its alternative submission, I do not see that the Court has power in the present case to vary the conditions currently applying to the appellant's registration. No argument on the appeal was directed to variation of any of the conditions attaching to the appellant's registration.
It may be that the Board has power to impose different conditions on the appellant's registration once it expires (on the 30th of September; see paragraph [9] of the judgment) and she applies for renewal of her registration. Neither of the submissions received were directed to this or to whether I could now give directions to the Board as to what it should do in that situation.
There is one further matter I should address. Section 94(1)(b) gives the Board and the Court power to
"extend the probationary conditions for a period of not more than one year, by requiring the registrant to undertake a part of the internship...."
I have required the appellant to undertake "all of the prescribed internship". See paragraph [290]. For present purposes the "prescribed internship" consists of at least 52 weeks in one or more accredited training programs. See Medical Practitioners Registration Regulation 2002, section 4. The appellant had, until my decision, been required to satisfactorily complete six months of the prescribed internship. I concluded that she did not do this and, in fact, should undertake a 12 months internship.
I do not think that the power given by section 94(1)(b) is limited in the present case to requiring only that the appellant undertake all or part only of a six months internship, that being the internship she was required to undertake in the first place. Section 94(1)(b) is expressed in general terms and the evidence before me certainly suggested that a further six months only would not be sufficient in the case of the appellant. What she needs to satisfactorily complete is an unbroken, properly-structured internship of 12 months, something she has yet to benefit from, either at Frankston or Townsville.
The Board in Exhibit 74 faintly seems to suggest that there may be no power to require the appellant to undertake all of the prescribed internship as opposed only to a part of it. I am unable to agree. Words in the singular include the plural; section 32C(a) Acts Interpretation Act, in which case "part" also means "parts". The prescribed internship must include at least 10 weeks' practical experience and training in each of the following:
(i) medicine, other than emergency medicine;
(ii) surgery;
(iii) emergency medicine.
See section 4 Medical Practitioners Registration Regulation 2002. Those, together with other aspects of normal internship, are the "parts" of the prescribed internship and those are the "parts" which I have directed the Board to require the appellant to undertake.
Having regard to what I said in paragraph [287] of the judgment a direction to the Board to the effect that the appellant's internship not be undertaken at The Townsville Hospital is one I consider appropriate to make. The power to give directions would, I consider, encompass such directions as are necessary to give efficacious effect to the decision.
The orders will be as I indicated on the 11th of May 2005 with an additional direction to the Board that the appellant undertake the prescribed internship at a hospital other than The Townsville Hospital.