A Practitioner v Health Ombudsman (No 2)

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

A Practitioner v Health Ombudsman (No 2) [2020] QCAT 112

PARTIES:

A PRACTITIONER

(applicant)

v

HEALTH OMBUDSMAN

(respondent)

APPLICATION NO/S:

OCR018-16

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

30 April 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

ORDERS:

1.   The parties must pay their own costs of these proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where Tribunal directed parties to prepare and file submissions on costs – where Health Ombudsman submitted practitioner should pay its costs – whether the interests of justice require the Tribunal to make order as to costs 

Health Ombudsman Act 2013 (Qld), s 68, s 74

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Medical Board of Australia v Wong [2017] QCA 42, cited

Health Ombudsman v Antley [2016] QCAT 472, cited

Health Ombudsman v Dalziel [2017] QCAT 442, cited

REPRESENTATION:
Applicant:	D Burrell pursuant to order of the Tribunal dated 29 July 2016
Respondent:	Ms Marshall instructed by the Office of the Health Ombudsman
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)

REASONS FOR DECISION

Background

1. The Tribunal gave its substantive decision in the appeal on 2 August 2016.[1]  The appeal was against the decision of the Health Ombudsman to take immediate action to issue an interim prohibition order (IPO) under s 68 of the Health Ombudsman Act 2013 (Qld) (HO Act). The action taken prohibited the practitioner from engaging in any employment or providing any services (paid or otherwise) in a clinical or non-clinical capacity, which relates to the provision of any health service. Pursuant to s 74 of the HO Act, the practitioner sought to review that decision.

   [1][2017] QCAT 265.

2. The appeal was dismissed.  At the time of giving its decision, the Tribunal requested the parties file written submissions on the question of costs.  On behalf of the Health Ombudsman, it was submitted that the practitioner should pay the Health Ombudsman’s costs.  In response, the practitioner requested that the Tribunal, in determining costs, consider her financial circumstances. 

Applicable Law

1. The HO Act is silent on the question of costs, leaving the question of costs to be determined pursuant to the provisions of the QCAT Act. The starting point in s 100 of the QCAT Act is that each party bears their own costs unless “the interests of justice require it to make the order”.[2] 

   [2]QCAT Act, s 102(1).

2. The question for the Tribunal has been formulated as:

   “[W]hether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ points so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.”[3]

   [3]Ralacom Pty Ltd v Body Corporate for Paradise Apartments (No 2)