Attudawage v Medical Board of Australia (No 4)

[2011] QCAT 626

CITATION: Attudawage v Medical Board of Australia (No 4) [2011] QCAT 626

PARTIES:	Chamudri Sagarika Attudawage (Applicant/Appellant)
v
Medical Board of Australia (Respondent)

APPLICATION NUMBER:   OCR010-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 5 December 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    Dr Attudawage is granted leave to withdraw her application.

2.    Dr Attudawage must pay the Board’s costs of and incidental to the application as agreed between the parties, or if not agreed within 30 days, as assessed on the standard basis against the District Court scale by a cost assessor nominated by Dr Attudawage.

CATCHWORDS: 

PROCEDURE – OCCUPATIONAL REGULATION – MEDICAL – REGISTRATION – REVIEW OF BOARD DECISION – COSTS – where applicant applied to review Board decision regarding registration – where applicant successfully demonstrated eligibility for registration by obtaining fellowship with the RACP – where applicant withdrew application – where Board applied for costs – whether costs should be allowed

Health Practitioner Regulation National Law Act 2009, s 201
Queensland Civil and Administrative Tribunal Act 2009, s 100

Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364 distinguished

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 29 September 2011 the Tribunal invited the Board to reconsider its decision on Dr Attudawage’s application for registration.  The Tribunal gave reasons for its decision in which it confirmed that, at the time the Board made its decisions, Dr Attudawage would not have been eligible for the type of registration she sought.  After the proceedings commenced, however, she undertook further assessment and the Board conceded she had become eligible for the type of registration she sought.  Dr Attudawage has now sought leave to withdraw her application given the changed circumstances.  The Board has requested an order for costs in its favour.  Dr Attudawage has resisted that application.

2. Both parties have referred the Tribunal to the costs provisions of the QCAT Act 2009 in particular s 100 which states the usual position: that each party will bear their own costs.  The Tribunal was referred to an earlier decision in the matter of Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364. In that case, the costs provision of the QCAT Act did apply as the relevant Act, the Nursing Act 1992, did not otherwise provide for the award of costs.  In this case, however, the enabling Act does otherwise provide.  The reasoning in Ascot is, therefore, of little relevance to this application.

3. However, as the Board submitted, s 100 is ousted by the specific provision in the Health Practitioner Regulation National Law Act 2009 (s 201) which confers an unfettered discretion on the Tribunal to make an order about costs it considers appropriate in the proceedings.

4. Dr Attudawage did not succeed in her arguments on the review application.  The change of position related entirely to the steps she took after these proceedings were commenced to demonstrate her eligibility for specialist registration.  The same result could have been achieved without pursuing these proceedings.  As the Board submitted, Dr Attudawage, having secured a stay of the Board’s decision from the Tribunal, was able to continue to work under a form of registration she was not then entitled to whilst she undertook further assessment to demonstrate her suitability.

5. The Board’s funding is sourced from registration fees of other members of the profession.  The Board has conducted itself appropriately throughout the proceedings and has not conducted itself in any way that delayed or lengthened them or increased the likely costs.

6. Dr Attudawage has been unsuccessful on the grounds she raised to review the Board’s decision.  The Board’s change of position in relation to her registration has occurred through progress Dr Attudawage has made through obtaining fellowship with the Royal Australian College of Physicians.  The Board facilitated that by lifting a condition placed on Dr Attudawage’s registration that would have made the progress through fellowship assessment impossible.

7. Taking those factors into account, the Tribunal considers the Board should be entitled to its costs.