Health Ombudsman v du Toit

This was an appeal from an order for costs. The appellant had unsuccessfully instigated disciplinary proceedings against the respondent, by imposing conditions on his specialist medical registration, without notice to him. The respondent sought a review of the appellant’s decision before the Queensland Civil and Administrative Tribunal, which found in his favour, set aside the appellant’s decision, and awarded costs to the respondent pursuant to s 102 Queensland Civil and Administrative Tribunal Act 2009. The appellant contended that the Tribunal had erred in law in relation to costs. The Court dismissed the appeal, finding that no error had been established and the costs order made constituted a proper exercise of discretion pursuant to s 102(1) of the Act.

Flanagan, Boddice and Brown JJA

22 November 2024

The appellant had been ordered to pay the respondent’s costs of the proceedings, on the standard basis to be assessed on the District Court scale. [1]. The appellant argued that the Tribunal had erred in the following respects:

1.Failing to construe or apply ss 100 and 102 Queensland Civil and Administrative Tribunal Act 2009 (“the Act”) by reference to the objects of the Act and the nature and scope of the proceedings.

2.Reversing the starting point dictated by s 100 of the Act that there be no order as to costs.

3.Failing to consider the relevance of the appellant’s statutory function in exercising the costs discretion.

4.Failing to give adequate reasons. [4].

In awarding costs to the respondent, the Tribunal reasoned as follows:

“[22] In this case, the [respondent] 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 [appellant’s] decision up to and including the Tribunal hearing, I cannot find the countervailing considerations sufficient to say it is not in the interest of justice to award the applicant costs.” [18].

Did the Tribunal err as to the proper construction of ss 100 and 102 of the Act?

Whilst s 100 of the Act provides that each party usually bear their own costs, there is scope under s 102 for the Tribunal to make a costs order if the interests of justice require it to do so.

The Court did not agree that the Tribunal had erred in either construing or applying ss 100 and 102. It held:

1.One of the primary contextual considerations in construing s 100 is that the Tribunal, in the exercise of its jurisdictions, hears a wide range of matters varying in nature, complexity and seriousness. [22]. When s 100 is understood in that context, it can be seen that it is a provision of general application which applies to various matters that are included in the Tribunal’s jurisdiction. [24].

2.That ss 100 and 102 should be construed in the context that s 43(2) identifies circumstances in which a limited class of persons, including those involved in disciplinary action, are entitled to be represented by somebody else. [31].

3.That the usual rule in s 100 is expressly made subject to s 102, which gives the Tribunal a broad discretion (evidenced by the use of the word “may”) to make a costs order other than that contemplated by s 100. The use of general terms such as “if the Tribunal considers” and “the interests of justice require” are indicative of the width of the discretion afforded to the Tribunal. In terms of what constitutes “the interests of justice”, that will necessarily depend upon the circumstances of each case. The term is generally considered to have a broad application. [32].

4.That in the current matter, both parties agreed that the nature of the review proceedings were of such a complexity that both parties required representation. Accordingly the Act automatically contemplated that a departure from the general position of minor civil disputes which are before the Tribunal, in favour of an approach more aligned with conventional litigation might be in order. [44].

5.When ss 100 and 102 are read in conjunction, it is apparent that no order for costs is to be made unless the Tribunal considers the interests of justice require it to do so. The terms of both provisions make it plain that, whilst the starting point is that no order for costs is to be made, a costs order may be authorised in the event the interest of justice require it. To treat s 100 as having “a strong contra-indication against costs orders”, is to read into the statutory discretion restrictions which are not derived from the terms of the Act. [61], [62].

6.That whilst it is the case that provisions are to be construed in accordance with the Act’s objects and purposes, it is not correct that the Tribunal, in exercising its discretion under s 102(1) and in determining whether the interests of justice require the making of a costs order, must pay particular attention to s 100. That construction would be at odds with the introductory words of s 100, namely “other than as provided under this Act or an enabling Act”, which specifically contemplate that a favourable exercise of discretion under s 102(1) will necessarily result in a departure from the usual position as to costs contemplated by s 100. That is a natural result of s 100 being made subject to other provisions of the Act, including s 102. [64].

Had the Tribunal failed to consider the relevance of the appellant’s statutory function?

The Court did not accept that any error had been established, noting:

1.That whilst the statutory function of the decision-maker for the reviewable decision will be a relevant matter for the Tribunal in determining whether the interests of justice require that a costs order be made, the exact weight which should be allocated to the decision-maker’s statutory function will differ depending upon the circumstances of each individual case. [71], [72].

2.Here, it was a matter for the Tribunal alone to decide how much weight was appropriate in the particular circumstances of the proceedings to give to the decision-maker’s statutory function. In the circumstances:

(a)both parties were entitled to representation and they agreed that the matter was a complicated one. The proceedings themselves took five days with both parties briefing senior and junior counsel; [72];

(b)the proceedings for review of the Health Ombudsman’s immediate registration action were commenced by the medical practitioner. Whilst the Health Ombudsman was not statutorily required to refer the matter to the Tribunal, it elected to set a “spirited defence…up to and including the Tribunal hearing” in motion; [72];

(c)the medical practitioner respondent was successful. The Tribunal determined that the evidence did not support a finding that due to his conduct or performance he was a serious risk to others; [73];

(d)the Health Ombudsman declined to deal with a large portion of cases in which a particular witness had been critical of the medical practitioner’s performance. As the Tribunal noted, themes of “frequent and recurrent urinary tract injuries”, a “troubling and disproportionate number of emergency hysterectomies” and “post-operative haemorrhaging” were unable to be maintained; [73];

(e)having regard to the above, it was not necessary that the Tribunal consider the Health Ombudsman’s statutory function. [74].

Had the Tribunal failed to give adequate reasons?

The Court did not share the appellant’s concern that the Tribunal’s Costs Reasons failed to meet the minimum standards required for adequate reasons. In its view, “[t]he Costs Reasons, while succinctly expressed, were, in the circumstances of these proceedings, adequate”. [86].

Disposition

The appeal was dismissed with costs.

A Jarro