Bontchev v Medical Board of Queensland

[2010] QCAT 61

CITATION: Bontchev v Medical Board of Queensland [2010] QCAT 61

PARTIES:	Dr Sevdalin Stoyanov Bontchev (Applicant)
v
Medical Board of Queensland (Respondent)

APPLICATION NUMBER:            OCR048-09              

MATTER TYPE: Occupational regulation matters

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Deputy President

DELIVERED ON:   17 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Both parties have leave to be legally represented

CATCHWORDS : 

LEGAL REPRESENTATION - complex question of law; implications for other applications, similarities to disciplinary proceedings.

Queensland Civil and Administrative Tribunal Act 2009, s43(1),(3)

APPEARANCES and REPRESENTATION (if any): Heard on the papers

REASONS FOR DECISION

1. Dr Bontchev has practised in Bundaberg as a special purpose registrant since he arrived in Australia in 2000. On 19 November 2009 the registration advisory committee of the Medical Board of Queensland made a decision to renew his special purpose registration, subject to a two special conditions.  The first restricts him to practise when another registrant is located on site within the practice. The second requires him to undertake a Structured Clinical Interview.  By agreement, that latter condition has been stayed pending the outcome of Dr Bontchev’s application to review the decision.

1. Both Dr Bontchev and the Medical Board wish to be legally represented in these proceedings. It is common ground the board’s decision is not disciplinary and the parties do not have a right to representation without leave. [1]

   [1] S 43 (2)(b)(ii) provides a party may be represented by someone else if the proceeding relates to a disciplinary action or reviewing a decision about taking disciplinary action against a person.

1. The question of legal representation in a proceeding before QCAT is governed by s 43 of the Queensland Civil and Administrative Tribunal Act 2009. The main purpose of that section is to have the parties represent themselves unless the interests of justice require otherwise (s43 (1)). It specifies a number of circumstances the tribunal may consider as supporting leave being given. Relevantly, for this application, are:

“(b) the proceeding is likely to involve complex questions of fact or law;
(d) all of the parties have agreed to the party being represented in the proceeding.” (s43(3))

Neither party opposes the other’s application for leave, and both assert the proceeding will involve complex questions of fact and law.

1. Dr Bontchev asserts the Board’s decision to impose the contested conditions is ultra vires and an abuse of its power. This raises questions about the scope of the Board’s authority and the limits of its power which are best addressed by the parties with the assistance of legal representation.

1. The outcome of the proceedings may well have implications beyond Dr Bontchev’s application. At the heart of the dispute is whether the Medical Board has correctly interpreted the requirements for registration.

1. Specifically, Dr Bontchev’s case is that it was not necessary for him to have passed two examinations conducted by the Royal Australasian College of General Practitioners: the Applied Knowledge Test and the Objective Structured Clinical Examination. In effect, his application for review calls into question what experience or qualification is sufficient for unconditional registration. Whilst this is not necessarily a complex question, the implications for other applications for registration tend in favour of leave being granted.

1. Further, whilst the proceeding is not disciplinary in nature, it shares some similarities. From Dr Bontchev’s perspective, the outcome will determine the conditions under which he may practise.  From the Board’s perspective, it involves its statutory functions to protect the public; to uphold professional standards of practise and to maintain public confidence.

1. Taking each of those matters into account, it is in the interests of justice  for each party to have leave to be legally represented.