Broadbent v Medical Board of Australia
[2018] QCAT 25
•16 February 2018
CITATION:Broadbent v Medical Board of Australia [2018] QCAT 25
PARTIES MICHAEL RUSSELL MARK BROADBENT
(Applicant)
v
MEDICAL BOARD OF AUSTRALIA
(Respondent)
APPLICATION NUMBER:
MATTER TYPE: Occupational Regulation Matters
HEARING DATE: 10 March 2015
HEARD AT: Brisbane
DECISION OF: His Honour Judge Alexander Horneman-Wren SC, DCJ
ASSISTED BY: Dr Michael Humphrey
Dr David Evans
Mr Kai Dahl
DELIVERED ON: 16 February 2018
DELIVERED AT: Brisbane
ORDERS MADE: 1. The appeal is struck out
2.The parties are to file any submissions which they wish to make on the issue of costs within 14 days of the publication of these reasons to the parties. Such submissions to be limited to 4 pages.
CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENSES AND REGISTRATION – APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION – where grounds for disciplinary action established against applicant by earlier tribunal – where applicant required by earlier tribunal to give an undertaking pursuant to s 241 of the Health Practitioners (Professional Standards) Act 1999 – where undertaking given – where application for reregistration is brought in contravention of undertaking – where application refused by medical board – whether appeal of medical board decision to be struck out as vexatious – whether appeal amounts to an abuse of process
APPEARANCES AND REPRESENTATION:
APPLICANT Mr J Carlyle (instructed by Hawkes Lawyers)
RESPONDENT Ms C T Houston (Solicitor) of Moray and Agnew Solicitors
Michael Russell Mark Broadbent, by decision of the Medical Board of Australia made on 10 June 2014, was refused registration as a medical practitioner. He has appealed to the Tribunal, pursuant to s 199(1)(a) of the Health Practitioner Regulation National Law (Queensland) (the National Law) against that decision. Pursuant to s 9 of the Health Practitioner Regulation National Law Act 2009 (Qld) (the National Law Act) the appeal is to proceed as a review of the decision as provided under the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
The Medical Board of Australia has applied to have Mr Broadbent’s appeal struck out pursuant to s 47 of the QCAT Act on the basis that it is vexatious or an abuse of process.
Matters concerning Mr Broadbent’s registration as a medical practitioner have a long history. For the reasons which follow, his appeal, considered in the context of that long history, should be struck out. It is both vexatious and an abuse of the Tribunal’s processes. To explain why this is so it will be necessary to set out much of that historical context.
Mr Broadbent’s former registration
Mr Broadbent, who was born on 20 January 1943, was first registered as a medical practitioner in New Zealand in 1969. He held general registration[1] until 1984 when he obtained specialist registration as a surgeon. For a short period between November 1984 and March 1985 he practised as a locum general surgeon consultant in Saudi Arabia. In 1985 he became registered as a surgeon in Queensland and New South Wales.
[1]His Curriculum Vitae which was attached to his application for registration and which is Exhibit CTH-22 to the affidavit of Christine Houston filed 31 October 2014 discloses that he also practised elsewhere including Rhodesia.
In 2008, Mr Broadbent entered retirement, ceased to practise and surrendered his specialist registration.
Disciplinary proceedings are brought against Mr Broadbent
In 2007 and 2008 the then Medical Board of Queensland[2] commenced disciplinary proceedings in the then Queensland Health Practitioners Tribunal against Mr Broadbent in relation to 13 of his former patients. Those proceedings were brought pursuant to the Health Practitioners (Professional Standards) Act.[3] The ground for disciplinary proceedings alleged was that Mr Broadbent had behaved in a way that constituted unsatisfactory professional conduct.[4] “Unsatisfactory professional conduct” was defined in the schedule to the Professional Standards Act to include: professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant’s professional peers; professional conduct that demonstrates incompetence or lack of adequate knowledge, skill or care in practice of the registrant’s profession; and providing a person with health services of a kind that are excessive, unnecessary and not reasonably required for the patient’s wellbeing. These were the bases for the allegation of unsatisfactory professional conduct brought against Mr Broadbent.[5]
[2]The Medical Board of Queensland was the local registration authority that had the function of registering persons as medical practitioners in Queensland before the commencement of the National Law on 1 June 2010, as defined by s 251 of the National Law.
[3]The Act’s name was subsequently changed to the Health Practitioners (Disciplinary Proceedings) Act 1999 on 20 May 2013; Health Practitioner Registration and Other Legislation Amendment Act 2013 (No.13); s 23; 2013 SL No 69 Item 1.
[4]Section 124(1)(a) Professional Standards Act.
[5]See the amended referral notices in respect of patients MacLeod and Pearce; Exhibits CTH-1 and CTH-2 to Ms Houston’s affidavit.
Various reviews of the matters were conducted in 2007, 2008 and 2009. On 18 June 2009 the Health Practitioners Tribunal constituted by Chief Judge Wolfe ordered the matters relating to patients MacLeod and Pearce proceed first in a hearing before the Tribunal constituted by Judge Wall QC commencing on 7 September 2009.
On 7 September 2009, being the date fixed for the commencement of the hearing of the MacLeod and Pearce matters in the Health Practitioners Tribunal, an application was made by counsel then appearing for Mr Broadbent for a permanent stay of the disciplinary proceeding on the basis that its continued prosecution by the Board was unnecessary, an abuse of process and contrary to the purposes of s 123 of the Professional Standard Act.[6] The decision of the Tribunal refusing the application for a stay recites the following as the basis upon which it was made:
[6]See paragraph 1 of the Tribunal’s decision in Medical Board of Australia v Broadbent [2009] QHPT-13; Exhibit CTH-5 to Ms Houston’s affidavit.
“HIS HONOUR: Mr Hackett relies upon an undertaking which Dr Broadbent is prepared to offer that he not ever again seek registration as a medical practitioner in Queensland and Mr Hackett, I think, said that Dr Broadbent was prepared to give a similar undertaking in respect of other jurisdictions. Is that so?
MR HACKETT: Yes, Your Honour.
HIS HONOUR: He also relies upon the limited financial resources of Dr Broadbent and the facts that the surgical procedure involved in relation to each of these patients was of an unusual and particular type which was carried out by only two doctors in Queensland, one of those being Dr Broadbent.
It is submitted that since 1999 this particular procedure was only conducted in Queensland by Dr Broadbent and another doctor. Both doctors now no longer practice in Queensland. Dr Broadbent has ceased practice and retired from practice on 7 September 2008. The other doctor practices in the United States of America. It is also submitted that since 2005 the procedure has not been conducted in Queensland as a primary procedure, but only as a secondary procedure for failed lap band surgery.”
The Board opposed the stay application. His Honour concluded his reasons as follows:
“I agree with Ms McMillan SC who appears for the Board that very serious matters relating to numerous aspects of medical practice and patient care and management are involved in these charges and that the allegations levelled by the Board against Dr Broadbent are not limited to the particular surgical procedures carried out by him.
In my view, the objects of the Act require that these broader issues, as well as the particular surgical procedures, be considered and be considered in a public way by evidence before this Tribunal. For these reasons, the application to permanently stay or dismiss the proceedings is dismissed.”
In the course of the hearing of the matter presently before the Tribunal this earlier offer by Mr Broadbent to secure a stay of the disciplinary proceedings was raised by the Tribunal with his counsel, Mr Carlyle, who was not counsel in the earlier matter when the undertaking had been offered. Mr Carlyle’s response was that he had no knowledge of that offer of an undertaking.[7] That response, of itself, was rather extraordinary given that the decision of the Tribunal which is in the form of an ex-tempore judgment given on transcript and which includes the clear statement of Mr Hackett of counsel that Mr Broadbent was prepared to offer such undertakings was exhibited to Ms Houston’s affidavit filed in the current proceedings. Mr Carlyle, on the instructions of Mr Broadbent, said in respect of that offer of undertakings:
“Again, Dr Broadbent was not present in court, and he maintains that that was not his instructions”.
[7]T-1-18 line 31. The transcript records, “I have no [indistinct] of that” but, as is apparent from the response of the Tribunal the statement was that he had no knowledge of it.
Those instructions, given to Mr Carlyle in the course of the hearing, are also extraordinary given that Ms Houston had deposed to those matters in her affidavit and had exhibited the decision and Mr Broadbent had subsequently filed an affidavit which ran to some 112 paragraphs over 79 pages in which he said nothing which would cast doubt upon his having, through his counsel, offered that earlier undertaking. Those instructions to Mr Carlyle are, however, consistent with Mr Broadbent alleging, in this application, that different counsel on a separate occasion when the Tribunal was determining what, if any, disciplinary action to take against Mr Broadbent, it having found that grounds for disciplinary action had been established, offered undertakings without his consent, instructions or authority to do so. Those are matters to which I shall return later in these reasons.
The Tribunal’s findings
Upon the commencement of Chapter 7, Part 6 of the QCAT Act on 1 December 2009, the disciplinary proceedings continued in the Queensland Civil and Administrative Tribunal. QCAT, constituted by Judge Wall QC who was assisted by three assessors, delivered its decision on 10 June 2010.
The Tribunal found some, but not all, of the allegations made against Mr Broadbent in the referral to be established. The Tribunal concluded in relation to each of the patients that in respect of those allegations which it found to be established, it was satisfied that Mr Broadbent had behaved in a way that constituted unsatisfactory professional conduct.[8] In respect of the patient MacLeod, by engaging in professional conduct that was of a lower standard than that which might reasonably be expected of him by the public or his professional peers, and a demonstrated lack of adequate knowledge, skill, judgment or care, in the practice of his profession.[9] In respect of the patient Pearce, the Tribunal also was satisfied that Mr Broadbent had engaged in conduct that involved the provision of health services, being a gastroscopy, of a kind that was excessive, unnecessary or not reasonably required for the patient’s well-being.[10]
[8]Medical Board of Australia v Broadbent [2010] QCAT 280 at [210].
[9]Medical Board of Australia v Broadbent [2010] QCAT 280 at [210].
[10]Ibid at [211].
The Tribunal’s final decision and Mr Broadbent’s undertakings
The Tribunal’s final decision was given on 2 September 2010 after a further hearing as to appropriate disciplinary application to be taken against Mr Broadbent, it having by its reasons of 10 June 2010 decided that a ground for disciplinary action had been established against him.[11] The Tribunal’s decision was as follows:
[11]Section 240(1) Health Practitioners (Professional Standards) Act 1999.
“The registrant having, pursuant to s 241(2)(d) of the Health Practitioners (Professional Standards) Act 1999, given an undertaking to the Tribunal in the following terms:-
“I Michael Russell Mark Broadbent, undertake that, the Tribunal having found that grounds for disciplinary action are established in the respects referred to by the Tribunal in its judgment delivered on 10 June 2010
(i) I will retire permanently from medical practice;
(ii) I will never re-apply to the National Board for the health profession for registration in Australia as [sic] practising medical practitioner;
(iii) I will not seek to be relieved on this undertaking.”
Details of the undertaking be recorded in the Board’s register for the period for which the undertaking is in force pursuant to s 242(1)(b) of the Health Practitioners (Professional Standards) Act 1999.”
As the decision itself records, it was formally made pursuant to s 242(1)(b) of the Professional Standards Act. Section 242(1)(b) required the Tribunal, in making its decision under s 241(2), to decide whether details of an undertaking which it had required Mr Broadbent to give to the Tribunal must be recorded in the Board’s register for the period for which the undertaking is in force. The Tribunal’s decision was that it must be so recorded.
As that final decision also records, Mr Broadbent had given an undertaking to the Tribunal in the terms recorded in the decision. The Tribunal was authorised to require Mr Broadbent to give it such an undertaking by s 241(2)(d) of the Professional Standards Act. Section 241 applies if, under s 240(1), the Tribunal decides a ground for disciplinary action is established against a registrant who is registered at the time of the decision.[12] Section 241(2) requires the Tribunal to do one or more of the things set out in the sub-paragraphs of that sub-section; those things include requiring the registrant to give the Tribunal an undertaking.
[12]Section 241(1).
Whilst the Tribunal’s final decision records the decision made under s 242(1)(b), it also reflects the decision made under s 241(2)(d). That decision to require Mr Broadbent to give an undertaking was itself a decision of a kind required to be made by the Tribunal under s 241. That it was such a decision made by the Tribunal is an important consideration in determining this application. Its significance as such, for reasons which I shall develop later, does not appear to be understood by Mr Broadbent.
The decision as signed by Judge Wall QC as the presiding member of the Tribunal formalised the decisions made in the course of the hearing on disciplinary action conducted by the Tribunal on 2 September 2010. What was said by the Tribunal on that occasion was published in the form of an order. It is attached to the application for miscellaneous matters filed by the Board in these proceedings on 23 October 2014. Because Mr Broadbent now asserts that the undertaking which was given by him through his counsel was given without his consent or authority, indeed it is put as high by Mr Carlyle as not having been given at all,[13] what was recorded in the transcript and published as an order on that occasion should be set out in full. It is as follows:
[13]T 1-17, line 26.
“HIS HONOUR: We have considered this matter and on the basis that the primary function of these proceedings, the registrant having been found liable in the respects referred to in the judgment, is to protect the public interest. It is our view that the matter of penalty could be satisfactorily resolved by requiring the registrant under s 241 sub-section 2 of the Health Practitioners (Professional Standards) Act to give an undertaking in the form in which I will hand to the parties and that there will also be an order under s 242(1)(b) as to the recording of that undertaking.
We consider that an undertaking in those terms will have a practical effect on the registrant far greater than suspension for a period of five years. Now, it is up to you, Mr Diehm, to make the necessary enquiries as to whether Dr Broadbent is prepared to give the undertaking which we require him to give.
MR DIEHM:Yes, Your Honour, and I’ll have those enquiries made. In Your Honour’s hands, of course, as to whether we proceed with the costs submissions while that’s being done.
HIS HONOUR: Well, I think we can.
MR DIEHM:Thank you, Your Honour.
HIS HONOUR: I will for the sake of the public indicate what the terms of the undertaking are that the Tribunal requires Dr Broadbent to give. It is in these terms:
“I, Michael Russell Mark Broadbent undertake that, the Tribunal having found that grounds for disciplinary action are established in respects referred to by the Tribunal in its judgment delivered on 10 June 2010:
(i)I will retire permanently from medical practice;
(ii)I will never re-apply to the national board for the health profession for registration in Australia as a practising medical practitioner; and
(iii) I will not seek to be relieved of this undertaking.”
That is the undertaking which we would require him to give and, as I said, if he is prepared to give that undertaking details of it will be recorded in the Board’s register and I will make a formal order to that effect once he gives the undertaking, if he does.
…
MR DIEHM:Your Honour, and members of the Tribunal, if we may indicate before proceeding to our costs submissions, that the registrant’s instructions are to give that undertaking.
HIS HONOUR: Alright. Well, alright. Well, I’ll just make a formal order.
MR DIEHM:Thank you.
HIS HONOUR: Under s 241(2)(d) of the Health Practitioners (Professional Standards) Act the Tribunal requires an undertaking from Michael Russell Mark Broadbent in the following terms:
“I, Michael Russell Mark Broadbent, undertaking that, the Tribunal having found that grounds for disciplinary action are established in the respects referred to by the Tribunal in its judgment delivered on 10 June 2010:
(i)I will retire permanently from medical practice;
(ii)I will never re-apply to the national board for the health profession for registration in Australia as a practising medical practitioner;
(iii) I will not seek to be relieved of this undertaking.”
The registrant, having given that undertaking, I order under s 242(1)(b) of the Health Practitioners (Professional Standards) Act, that details of this undertaking be recorded in the Board’s register for the period for which the undertaking is in force.”
Mr Broadbent seeks leave to appeal
Section 149(2) of the QCAT Act confers a right of appeal to the Court of Appeal from the decision of the Tribunal when constituted by a judge. If the appeal is on a question of fact or a question of mixed fact and law, leave of the Court of Appeal is required.[14]
[14]Section 149(3)(b) QCAT Act.
On 7 July 2010 Mr Broadbent filed an application for leave to appeal.
When the application for leave to appeal came to be heard there was a preliminary issue. The Board sought a stay of the application for leave on the basis that Mr Broadbent had agreed to compromise his proposed appeal and the terms of the agreement required him to discontinue his application for leave to appeal.[15] Mr Broadbent denied the proposed compromise.
[15]Broadbent v Medical Board of Australia [2010] QCA 352 at [5].
The evidence on the issue of compromise was contained in affidavits of Mr Broadbent and of the solicitor for the Board. Mr Broadbent had, at the time, been represented by a firm of solicitors with whom his son was an employed solicitor. Mr Broadbent Jr had the day to day carriage of the matter.
On 21 September 2010 counsel who was representing Mr Broadbent in the appeal informed him that in order to settle those proceedings a formal offer to do so would be needed from him. Mr Broadbent had deposed that after he “was again under pressure to make an offer”, he “eventually and reluctantly agreed to put the offer”.[16] The offer was made by his counsel to the Board’s counsel on 22 September 2010. The offer was in a number of parts. Mr Broadbent’s appeal in the Court of Appeal would be dismissed by consent with no order as to costs. On his undertaking already given to QCAT (that being that he would retire permanently from medical practice; never re-apply for registration as a practising medical practitioner; and that he would not seek to be relieved of the undertaking) all remaining referral notices before the Tribunal would be permanently stayed.
[16]Ibid at [8].
Finally, the parties would abide by the costs order of QCAT in respect of the Pearce and MacLeod matters upon which the tribunal was then reserved. It is to be noted that offer of compromise with its reference to the undertaking given by Mr Broadbent was made within three weeks of that undertaking having been given. This is a fact which strongly suggests that it had been given on his instructions, contrary to Mr Broadbent’s assertion now that it was not.
Clarification was sought by the Board’s counsel as to what would occur in respect to the stay of the further proceedings in QCAT in the event that Mr Broadbent did seek to be relieved of his undertaking or seek review of it. Mr Broadbent’s counsel replied that the intention was that the stay of those proceedings was premised upon the undertaking, so that if Mr Broadbent resiled from his undertaking the Board could apply to have the stay lifted from those proceedings.[17] This also occurred on 22 September 2010.
[17]Ibid at [9].
On 5 October 2010 Mr Broadbent’s counsel inquired of the Board’s counsel as to whether there had been any progress on the offer to settle.[18]
[18]Ibid at [10].
Mr Broadbent “deposed that once he agreed to put the offer he had ‘very serious and deep renewed soul searching’ about the matter”.[19] An email exchange then ensued between Mr Broadbent and his son, his solicitor, in which Mr Broadbent enquired about what was required to be done in pursuing his appeal.[20] It was explained to Mr Broadbent by his son that the only offer which was “on the table” was his and “if you are saying you no longer wish to make that offer, you better withdraw it”. The email also asked whether Mr Broadbent’s instructions were to withdraw his offer.[21] This occurred on 6 October 2010.
[19]Ibid at [11].
[20]Ibid at [11].
[21]Ibid at [12].
Later on 6 October 2010 Mr Broadbent sent a further email to his son setting out how he proposed to approach the appeal. He also referred to his “further hope” that as an alternative to the appeal the Board would consider an independent review of the evidence and raised the possibility of proceedings in the Federal Court.[22]
[22]Ibid at [13].
On 7 October 2010 Mr Broadbent Jr emailed his father stating that he would not be in the office the following day. He also sought clear instructions as to whether Mr Broadbent was withdrawing his offer and wanting to press on with the appeal.
On 8 October 2010 Mr Broadbent emailed his son informing him that he was withdrawing his instructions in regard to negotiations with the Board and that he was pressing on with his appeal.[23]
[23]Ibid at [14].
Later on 8 October 2010 there was an email exchange between Mr Broadbent Jr and Mr Broadbent’s counsel in which the offer was referred to. Counsel spoke of the potential to get a response on the following Monday upon the return of the Board’s counsel. [24] In the event, there was no notification of the withdrawal of Mr Broadbent’s offer. At 9.03am on Monday 11 October 2010 it was accepted by the Board’s counsel[25].
[24]Ibid at [16].
[25]Ibid [17].
The Court of Appeal (Fraser JA, Chesterman JA and McMurdo J agreeing) held that upon a contractual analysis the compromise was a valid agreement binding on Mr Broadbent.[26] The court rejected Mr Broadbent’s argument that a contractual analysis was inappropriate.[27]
[26]Ibid [24].
[27]Ibid at [25].
The court found, however, that it was “nevertheless clear that the compromise was made in defiance of [Mr Broadbent’s] instructions”, and that “applying the appropriately stringent tests, the facts of this case do justify the exercise of the courts power to decline to enforce the compromise”.[28] In doing so the court said:
“Although the applicant had retired from his profession, the decision against which he sought leave to appeal was of great importance to him, involving as it did conclusions that his conduct as a medical practitioner and surgeon fell short of the necessary professional standard of care. The potentially serious consequential damage to his reputation could not effectively be remedied by leaving him free to pursue any damages claim he might have against his solicitors for failing to give effect to his instructions.”[29]
[28]Ibid at [33].
[29]Ibid at [38].
The court concluded that, taken together with the facts that the compromise was contrary to his emphatic instructions and that he had repudiated it within hours of it being concluded and virtually immediately upon his becoming aware that it bound him, that no injustice was suggested by the Board were it to lose the benefit of the compromise, and that both parties had been ready to argue the substantive application for leave to appeal on the day:
“These considerations demonstrate that [Mr Broadbent] will be the victim of a serious injustice if he is denied the opportunity of having his application for leave to appeal considered by this Court.”[30]
[30]Ibid.
The Court of Appeal thus went on to hear Mr Broadbent’s application for leave to appeal. Having done so, the Court refused leave.
In its judgment (Chesterman JA; Fraser JA and McMurdo J agreeing) the Court observed that it was “important to emphasise that [Mr Broadbent] challenges the Tribunal’s findings of fact, or some of them” and that:
“The application properly proceeded on the basis that [Mr Broadbent] had to demonstrate substantial grounds for concluding that the Tribunal had mistaken facts relevant to its determination, that [Mr Broadbent] had behaved in a way that constituted unsatisfactory professional conduct in the treatment of two patients, Mrs MacLeod and Mrs Pearce.”[31]
[31]Ibid at [44].
The court considered that a reason for separating the hearing of the application for leave to appeal and the appeal itself, other than the statute providing for two steps, was that “when conducting disciplinary proceedings against a medical practitioner the Tribunal which makes the determination is a specialist one”.[32]
[32]Ibid at [45] and [46]. See also the separate reasons of McMurdo J at [86].
Chesterman JA observed that much of the Board’s case against Mr Broadbent in respect of Mrs MacLeod had not been made out to the satisfaction of the Tribunal.[33]
[33]Ibid at [55].
At [56] His Honour said:
“The Tribunal undertook a detailed and comprehensive analysis of the evidence before making its finding. The evidence in support of or opposition to the particulars was rehearsed and the findings expressed in a way which makes the reasons for judgment self-contained. The thoroughness of the exercise undertaken by the Tribunal presents a difficulty for the applicant.”
At [65] to [67] His Honour found:
“The findings indicate a careful consideration of the relevant materials and a rational acceptance of evidence. The applicant, if he were to obtain leave to appeal, had to show that the conclusions of fact could not reasonably be made, either because there was no evidence to support its findings or that the evidence it accepted was outweighed by evidence to the contrary effect. The applicant did not attempt such investigation or analysis. His address to the court consisted of generalised criticisms of the findings, including those which the Tribunal made in his favour. He did not identify any particular fact or finding of fact which he claimed was wrong, nor did he attempt the task of analysing findings by reference to evidence relevant to it to demonstrate why the Tribunal might have been in error. Instead he repeated to the court the opinions and evidence he had urged on the Tribunal.
The court repeatedly drew the applicant’s attention to the task he had to essay if he were to persuade it to grant leave to appeal. Despite the admonition the applicant continued with his generalised asseverations that the Tribunal should have accepted in its entirety his opinions and his account of the facts.
Given that approach it is difficult to deal sensibly with the application. The short point is that the applicant did not begin the necessary exercise of exposing factual error on the part of the Tribunal, if it existed.”
His Honour concluded, at [75], that:
“The applicant has not shown any reason why he should be given leave to appeal against the Tribunal’s findings with respect to Mrs MacLeod.”
In respect of Mrs Pearce, Chesterman JA recited a large part of the Tribunal’s reasons in relation to the allegations in section 14 of the referral and then, at [79], said:
“I have set out this finding at length because the burden of the applicant’s argument was that the evidence did not support the Tribunal’s finding that Mrs Pearce had an anastomotic leak. The evidence in support of the finding is rehearsed at length in the Tribunal’s reasons. The applicant’s attack on those reasons amounted to no more than a repetition of the evidence he gave before the Tribunal and an assertion that the Tribunal should have accepted the opinion of Dr Downes who performed the post-mortem. The applicant referred the court to some passages in cross-examination of Dr Wall who said that Mrs Pearce did not exhibit a number of symptoms of a patient with an anastomotic leak. He did not refer the court to that part of Dr Wall’s evidence in which he said that, notwithstanding the absence of those symptoms, it was his firm opinion that such a leak existed. (AR599L22-L30). There was more than sufficient evidence to support the Tribunal’s findings. No error has been shown.”
In respect of the allegations in sections 19 and 20 of the referral, Chesterman JA observed that Mr Broadbent had not challenged those findings in his oral submissions, and that they had been briefly dealt with in his written submissions. His Honour said that those written submissions “contained no reasoned criticism of the Tribunal’s findings, and failed to point to any evidence in support of the general proposition they advanced”.[34] His Honour held that the Tribunal’s findings were supported by the evidence of Dr Wall, an expert retained by the Board.[35]
[34]Ibid at [80].
[35]Ibid at [81].
Chesterman JA concluded that in respect of those allegations also Mr Broadbent “had not made out any arguable case of error of fact in the Tribunal’s findings”.[36]
[36]Ibid at [84].
In separate reasons, McMurdo J, in agreeing with Chesterman JA, observed at [87] to [88]:
“Here the applicant’s position is made yet more difficult by the fact that all but a few of the findings which he seeks to challenge were made by an acceptance of the evidence of a joint report of expert witnesses, some of whom had been nominated by the applicant. Of course the Tribunal was not obliged to accept their evidence. But as the reasons for judgment demonstrate, this and the other evidence was carefully scrutinised. There was no obvious flaw in this joint report. The applicant does not suggest, for example, that it was internally inconsistent or that it was partial to the Board’s case. In many respects, it was unsupportive of that case. For the relatively few particulars which the Tribunal found were proved but which were not supported directly by that joint report, there was other evidence, not inconsistent with the joint report, which supported the findings.
As Chesterman JA has explained the applicant would seek to challenge the Tribunal’s findings by arguing that his own opinions should be preferred to the apparently overwhelming evidence which the Tribunal accepted. The applicant has failed to demonstrate a substantial possibility that the Tribunal misused its advantages in doing so. I agree then with the orders proposed by Chesterman JA.”
Leave to appeal from the Tribunal’s decision was thus refused. The court ordered costs against Mr Broadbent.
Mr Broadbent seeks judicial review
On 4 January 2011 Mr Broadbent filed an application for review in the Supreme Court of Queensland.[37]
[37]Exhibit CTH11 to Ms Houston’s affidavit.
Although only the Medical Board of Queensland was named as respondent, it purported to be an:
“application to review the decision of the Queensland Civil and Administrative Tribunal (QCAT) and the conduct of the respondent prior to and during the hearing of allegations and charges that the applicant engaged in acts of professional misconduct during the surgical management of Mrs Ursula MacLeod and Mrs Margaret Pearce prior to and following duodenal switch biliopancreatic diversion surgery that the applicant had performed on each patient during 2003 and 2000 respectively”.
Mr Broadbent said he was aggrieved by the decision because it was:
“1. Wrong
2.Had the applicant not been fully retired, such decisions would have attracted severe professional penalties.
3.Regardless, the action and decision has caused severe professional and financial penalties to the applicant.
4.The decisions will prevent the applicant being registered as a medical practitioner by the Australian Medical Council pursuant to the Health Practitioner Regulation National Law 2009 (Qld) should the applicant wish to return to practice.
5.The conduct of the respondent prior to the hearing caused the applicant to prematurely retire from medical and surgical practice.”
Mr Broadbent set out the following five grounds for the application:
“1.Breaches of the rules of natural justice and procedural fairness occurred at all stages in the process.
2.The procedures required by law were not observed.
3.Errors of law were evident in the determination.
4.There was no evidence or insufficient evidence to justify the decision.
5.There was evidence of bad faith and fraud.”
Mr Broadbent set out some 125 paragraphs of particulars[38] of his allegation of bad faith. He then set out 96 paragraphs of particulars of his allegation of fraud.
[38]With many sub-paragraphs.
The relief he sought was an order quashing or setting aside the decisions and an order referring the matters to QCAT with directives [sic].
On 4 January 2011 the Deputy-Registrar of the Supreme Court of Queensland wrote to Mr Broadbent advising that the court was unable to accept the filing of the application for judicial review because leave had not been granted by the Court of Appeal for its filing, and that no further action would be taken by the court in respect of it.
It is quite apparent that Mr Broadbent had, although it was misconceived, attempted to obtain by means of judicial review that which he could not obtain through an appeal from the Tribunal’s decision, leave to appeal having been refused.
Mr Broadbent applies to the Federal Court of Australia
On 4 January 2011 Mr Broadbent also filed an application for judicial review of QCAT’s decision and the Board’s conduct in the Federal Court of Australia.[39]
[39]Exhibit CTH14 to Ms Houston’s affidavit.
In lengthy and detailed reasons for entering judgment against Mr Broadbent pursuant to s 31A(2) of the Federal Court of Australia Act 1976 on the basis that he had no reasonable prospect of successfully prosecuting the proceeding, Greenwood J described Mr Broadbent’s 53-page application document as containing:
“many wide-ranging assertions about the conduct of the Medical Board in connection with steps taken or decisions made by the Medical Board concerning its examination of Mr Broadbent’s role or engagement in the medical treatment of two former patients, Mrs Ursula MacLeod and Mrs Margaret Pearce”.[40]
[40]Broadbent v Medical Board of Queensland [2011] FCA 980 at [4].
His Honour further described Mr Broadbent’s application as follows:
“The application for an order of review does not identify the decisions of the Medical Board which is sought to be challenged. However the application recites many factual assertions which begin under the heading ‘Bad Faith’ and commence at (a) to (z) and then continue at (aa) to (zz) and then (aaa) to (zzz) and so on. Although the internal paragraph numbering goes awry in the document, the many factual conduct allegations can be grouped by reference to each block of 26 paragraphs and in doing so, they fall into 10 groups clustered around particular topics although there is a high degree of repetition and over-lappng throughout the various 10 groups of allegations.”
That description is also apt to describe Mr Broadbent’s purported application for judicial review in the Supreme Court.
Mr Broadbent sought to enliven the jurisdiction of the Federal Court of Australia to exercise supervisory judicial review of the decision of QCAT and the decisions of the Board on the basis that each were amenable to the jurisdiction of the Federal Court by operation of s 75(v), 76(ii) and 77(i) of the Commonwealth Constitution and s 39B of the Judiciary Act as each decision involved a federal element because it was said that the decision-makers were:
“officers of the Commonwealth who had exceeded their jurisdiction, or the decision engaged matters arising under laws made by the Commonwealth Parliament.”[41]
His Honour later observed that nowhere in the application was a ground of jurisdiction asserted.[42]
[41]Ibid at [6].
[42]Ibid at [60].
At the hearing of his application in the Federal Court Mr Broadbent conceded that it was the conduct of the Medical Board that he sought to have reviewed and that he did not seek to challenge the decision of QCAT per se.[43] Notwithstanding that concession the court held that Mr Broadbent’s application amounted to a “collateral attack on the decisions of QCAT and the Court of Appeal because whilst the appellant abandoned at the hearing his application to review the decision of QCAT, he seeks to quash the ‘decisions’ (conduct) of the Medical Board in instigating proceedings before QCAT and he seeks to have the matter of the prosecution against him remitted to QCAT for further consideration or alternatively remitted to the Supreme Court of Queensland.”[44]
[43]Ibid at [56].
[44]Ibid at [212].
His Honour referred to the observation of Lord Diplock in Hunter v Chief Constable of the West Midlands Police,[45] adopted by Hayne J in International Finance Trust Co Ltd & Anor v New South Wales Crime Commission & Ors[46] that:
“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made”.
[45][1981] 3 All ER 727 at 733.
[46][2009] 240 CLR 319 at [147].
Greenwood J concluded, at [213]:
“Since the application does not identify a ground of jurisdiction in the Federal Court and the application seeks to re-agitate and call into question matters determined before QCAT and the Court of Appeal, the application ought to be dismissed. However, because there is no reasonable prospect of the applicant successfully prosecuting the application, the appropriate order is to enter judgment for the respondent in the proceeding.”
His Honour entered judgment for the Medical Board and ordered Mr Broadbent pay the Board’s costs on an indemnity basis.
The Board withdraws the remaining disciplinary matters
In a decision of 22 March 2012[47] the then Deputy-President, Kingham DCJ, dealt with an application by Mr Broadbent for his costs in respect of the other disciplinary matters which had been before the Tribunal but which had been withdrawn by the Board. That withdrawal was with the leave of the Tribunal. Leave had been granted after the matters concerning Mrs MacLeod and Mrs Pearce had been finally concluded.
[47]Medical Board f Australia v Broadbent [2012] QCAT 120.
In refusing Mr Broadbent’s application for costs her Honour referred to undertakings provided in the MacLeod and Pearce matters that he would retire permanently from medical practice, would never re-apply for registration, and would not seek to be relieved of his undertaking.[48]
[48]Ibid at [3].
At [5], Kingham DCJ said:
“After all avenues for appeal and any related proceedings were exhausted, QCAT granted the Board leave to withdraw the referrals relating to the remaining 11 patients. It did so on the basis that the statutory function the Board was required to fulfil would not be furthered by maintaining those proceedings, given the outcome from the proceedings involving the first two patients. Further, that decision conformed with the object of the Queensland Civil and Administrative Tribunal Act 2009 for proceedings in QCAT to be dealt with fairly, efficiently and economically.”
Her Honour observed that much of what was raised by Mr Broadbent in his 39-page submission could not be dealt with the by the Tribunal given the prior history of those and related proceedings.[49]
[49]Ibid at [6].
Her Honour rejected a submission by Mr Broadbent that the Board had withdrawn the remaining proceedings because its investigation was fundamentally flawed,[50] the evident purpose of proceeding with the MacLeod and Pearce matters first having been:
“to test whether the decisions made about those two cases would have a bearing on whether it was either possible or necessary to maintain proceedings in relation to the remaining patients.”[51]
[50]Ibid at [13].
[51]Ibid at [14].
Her Honour held that “given Mr Broadbent’s undertakings about future medical practice there would be little point in pursing allegations relating to the remaining 11 patients.”[52] In those circumstances, Her Honour was unpersuaded that any order for costs should be made against the Board and she ordered each party to bear their own cost.[53]
[52]Ibid at [23].
[53]Ibid at [24].
Mr Broadbent’s application for registration
In Mr Broadbent’s application for registration,[54] he identifies, in answer to Question 21, that he is returning from a temporary absence from practice of longer than 12 months. In answer to Question 27 he states that his registration is not currently suspended or cancelled in Australia or overseas and, at Question 28, that he has not previously had his registration cancelled, refused or suspended in Australia or overseas. Then, in answer to Question 30, he states that he is not disqualified from applying for registration in Australian under the National Law.
[54]Exhibit CTH 22 to the affidavit of Ms Houston.
All of those statements are, of themselves, correct; but they say nothing of the undertaking which then (and still) binds Mr Broadbent not to re-apply for registration.
In his curriculum vitae attached to the application Mr Broadbent refers to having “retired from surgical practice in October 2008 and voluntarily surrendered specialist practising certificate”. Again, the undertakings are not referred to.
Mr Broadbent attached a further document to his application for registration entitled “Issues with Queensland Medical Board/AHPRA”. It commenced by stating:
“This application to renew my general medical registration requires me to outline past issues in regard to allegations made by the Queensland Medical Board against myself, and the findings of the Medical Tribunal hearing in 2009-2010.”[55]
[55][1].
He refers to complaints having been made and says that:
“The QMB merely embellished the false allegations of the complainant, which were given to the complainant by the Allamanda Hospital and the 8 treating physicians, and bolstered their case by withholding favourable expert reports from the decision-makers on the Board and generating an unfavourable report but not disclosing the full facts to their chosen expert – who was not a true expert on the matters in question and invented additional allegations of false facts.
Accordingly the true cause of death of the patient was not determined and any alleged contribution by myself or others could not be properly established – unless unconscionable falsification, fabrication, malfeasance and breaches of natural justice took place – which the prosecution did – by deliberate intent”.[56]
[56][4] and [5].
He went on to say of the proceedings before the Tribunal:
“The QMB elected to proceed to a hearing of two of the matters – those known as MacLeod and Pearce. They were vigorously defended, but with difficulty as the QMB had manoeuvred the Tribunal not to hear evidence of any involvement and the cases of other practitioners or to investigate or even refer to the presumed cause of death of both patients. Such tactics destroyed my defence – which was that the introduction of infection by the hospital and intensivist team caused the death.
The Tribunal itself was in competently [sic] structured, with no surgical peer on the panel. The Tribunal President made many elementary mistakes substituting his own inexpert views for those of the experts and introducing fresh causes of death in both cases with no supporting evidence.”[57]
[57][7] and [8].
As to the outcome of the disciplinary proceeding, Mr Broadbent said:
“Even though the process was corrupt and corrupted the Tribunal ordered no penalty against myself, however the effect was to ruin my reputation and private practice, and encourage swarms of plaintiff lawyer firms.”[58]
[58][9].
That statement is misconceived and wrong. As already explained the Tribunal having decided a ground for disciplinary action was established, decided to enter into the undertakings in the form required by the Tribunal. That was a decision to take action against Mr Broadbent in a form authorised by s 241(2)(d) of the Professional Standards Act.
He says:
“It has been and still is my view in my repeated and previously ignored request that AHPRA re-opened both matters in order to expose the truth and exonerate myself from the adverse findings – be they minor, they were nevertheless wrong and reached only because of a corrupt and corrupted process.”[59]
[59][12].
He claims:
“My complaint of the corrupted process and corrupted practices has been substantiated by the Chesterman enquiry and the actions of the Newman government which has taken steps to eliminate the Queensland Medical Board in its entirety – but regretfully no steps to mitigate the effects on individuals such as myself of the QMB’s admitted malfeasance over many years.”[60]
[60]]14].
That claim is also misconceived. For reasons which will be developed later the Chesterman enquiry and any actions taken by government in no way substantiate any complaint of Mr Broadbent of corrupted process or practices.
Of his undertakings, Mr Broadbent says:
“Such should not preclude my return to medical practice as undertakings were extracted from myself by means of the above corrupted process and corrupted findings.”[61]
[61][13].
Mr Broadbent attached to this document “as a way of further explanation” a complaint which he had recently referred to the Queensland Minister for Health. The complaint runs to 26 pages. The complaint relates to the MacLeod and Pearce matters. It is a complaint of misconduct on the part of the former Queensland Medical Board.
Mr Broadbent identifies: the members of the Medical Board; the CEO of the Board, the head of the Board’s complaints unit; the head and subordinate investigators; the head of the prosecutions unit of the Board and subordinate prosecuting officers; in-house solicitors; and the State members and staff of the Board and AHPRA as “persona in government employ responsible for the debacles described below.”[62] He contends that the matters in his complaint expose and demonstrate:
[62]Page 1 of the complaint.
“Wilful negligence, malfeasance, fraud, corruption, conspiracy, misleading and deceptive conduct, injurious falsehoods, unconscionable conduct, abuse of power, abuse of process, malice, fabrication, retaliation and perversion of the course of justice”.[63]
Following a lengthy litany of complaint about alleged failures and actions on the part of the Board, Mr Broadbent alleges:
“The eventual manipulation by QMB of the eventual Medical Tribunal process to ensure that the truth in regard to both Mrs MacLeod’s death and Mrs Pearce was not able to be revealed i.e. the hearing was all about the invented theories without being able to advance the true facts.”[64]
[63]Pages 1 – 2 of the complaint.
[64]Page 10, [30].
He alleges that holding the hearing of both sets of “false charges” concurrently prejudiced “a fair hearing of either matter, and before a Tribunal of non-surgical peers” which he alleges was “quite contrary to due process and natural justice”.[65]
[65][36].
Of the hearing itself he makes the following complaints (amongst others):
“The QMB successfully manipulated the court/Tribunal process to ensure the truth was not revealed i.e. no evidence allowed on the cause of either Mrs Pearce or Mrs MacLeod’s death and no referral permitted to the death certificates – made it impossible to demonstrate the falsities of the charges alleging I caused or contributed to the cause of Mrs Pearce and Mrs MacLeod’s deaths – as the cause of death in MacLeod had been mis-stated on the death certificate and the QMB’s case was based on their interpretation of the mis-statements, and the non-consideration of the conduct of the 8 treating physicians and in Pearce the QMB’s objective was to ignore the Coroner’s post-mortem and his decision by inserting their own preferred version.
An ever-changing barrage of particulars arose in both Pearce and MacLeod as fresh evidence not previously particularised was given orally both by ordinary witnesses and alleged expert witness, some with vested interests to protect and/or selective recollections of events then six to seven years past, thereby such effecting the eventual findings i.e. the Board’s case was not confined to the particulars of the allegations in the statement of claim (referral notices) and neither were the eventual Tribunal findings.
Appointment of two non-surgical assessors to the Medical Tribunal contrary to the intention and spirit of the Act, due process and natural justice, as the QMB had assured myself that one of the assessors was a surgeon and thereby as [sic] fellow of the Royal Australasian College of Surgeons – which in fact he was neither surgeon nor a surgical fellow.
The QMB successfully submitted to the Tribunal that no evidence be heard regarding the cause of death nor referral to the death certificate of either Pearce or MacLeod thereby depriving me of my main defence to the allegations being thereby forced to defend ‘when did you stop beating your wife’ type charges.
Heavy reliance by the QMB in:
(a)MacLeod on the self-serving evidence of the treating physicians, and nurse representatives of the hospital naturally continuing to distance themselves from culpability (as they had throughout) and the effective ban by the Tribunal’s orders following the motion introduced by the QMB to effectively prevent direct or indirect evidence of the treating physician’s involvement and contributions to the cause of death, and on the expert evidence of the lesser – peer surgeon who had failed entirely to recognise the involvement of the 8 co-treating physicians and several other consulting specialists, and the poor reporting of the Pathology Board.
(b)In Pearce in reliance on opinion evidence from an expert witness who had not known that there had been a post-mortem nor the results of that post-mortem – and that all of his opinion evidence was contradicted by the post-mortem report.
The QMB contrary to due process and natural justice, supported the Tribunal’s determination at the conclusion of the hearing that “no submissions be heard orally or written on the evidence” and “written submissions be limited to only directing the Tribunal to passages in the transcript to be considered” – thus the President was unable to be guided by any surgical advice on the nuances of evidence and only by non-surgical – peer members of the Tribunal into the nuances surgical issues [sic].
In sentencing submissions the QMB verbosely grand-standed demanding manifestly excessive penalties and exaggerated and repeated falsities and demonised and vilified myself out of proportion to the findings for the benefit of the reporting media.
After sentencing (no penalty as long as I remained retired) QMB publicly exaggerated and distorted the penalty determined by the Tribunal as a “life ban” and have repeatedly continued to do so in order to continue to demonise and vilify myself.”[66]
[66]Pages 12 – 14.
Under the heading “Effects of Malfeasance”, Mr Broadbent makes (amongst others), these complaints:
“The sum of the deliberate unfair actions of the Medical Board, listed above has meant I retired from practice and voluntarily surrendered my practising certificate in October 2008 (a full year before the Tribunal hearing commenced) and the result of Tribunal/QCAT hearing was a perverted, corrupted and unfair process, based on perverted and corrupted evidence and for the many breaches of natural justice, procedural fairness and due process, as outlined above in sub-paragraph 4.1 to 4.44 which took place before, during and after the hearing. I have been seriously unfairly and permanently damaged in this process, the damage is enduring and accumulates daily.
The breaches described above were caused by the embedded internal culture of the QMB, they were deliberate and carefully orchestrated in order to achieve a conviction regardless of the facts and the truth and I believe some were made with the knowledge of the solicitors and barristers representing the Board that certain facts of both MacLeod and Pearce were being withheld and others embellished and exaggerated – so that achieving the desired outcome meant sacrificing the truth, justice and a due and fair process.
The breaches resulted in a perverted and unfair hearing, the miscarriage of justice and perverted determinations by the Tribunal, and seriously damaged myself, opening the gate for extensive civil litigation sponsored by plaintiff lawyer groups on the basis of the Tribunal’s findings and the orchestrated publicity generated by the QMB.
Coincident with the hearing in MacLeod and Pearce further charges were being made by QMB in relation to matters of patients Andrews and Kozanic, which came before the Medical Tribunal and was listed for a hearing after Pearce and MacLeod.
The QMB eventually in 2011 could not and did not elect to proceed with the allegations and charges for the reasons that the QMB’s experts’ opinions on which the prosecutions had been based had been impeached at the joint experts’ conference (ordered by the Tribunal in 2009) i.e. the joint experts’ conference determined there were no grounds for such allegations and my treatments of the said patients were more than competent.”[67]
[67]Pages 14 – 15.
In respect of the Board withdrawing the complaints in two particular matters which were amongst the 11 for which leave to withdraw was granted, Mr Broadbent complains:
“The Board falsely informed (by then) the new jurisdiction QCAT that the prosecutions would not proceed in the interim as they were unnecessary in the circumstances, denied the existence of the dissenting joint expert reports, and as long as I remained retired the matters would not proceed. The QMB subsequently successfully objected and resisted paying my costs by further false representations in regard to the factual reasons the prosecutions were not carried through yet deceptively maintained that they still might proceed. Such half-baked and discredited prosecutions still lie in QCAT awaiting QMB to activate such if and when they see fit.”[68]
[68]Pages 15 – 16.
Mr Broadbent then addresses at length what he describes as “the true facts and circumstances” concerning Mrs MacLeod and her “real cause of death”.[69] The matters which he sets out are a rehearsal of his contentions in the Tribunal proceedings.
[69]Pages 18 – 21.
He summarises his complaint as being:
“This complaint is about the alleged institutionalised and repeated malfeasance of the QMB, the resultant miscarriage and perversion of justice brought about the failure of the Queensland Medical Board to competently and objectively investigate valid relatives’ complaints – in the matters of MacLeod and Pearce, and to fairly prosecute such complaints due to the said alleged institutionalised culture of internal malfeasance of its members and staff at all levels of responsibility in order to achieve the required outcomes.
Such failure as described in preceding paragraphs has corrupted the investigation, the prosecution, the hearing and the eventual findings of the Tribunal. The conduct of some participants is arguably criminal in nature and it has been deliberate and with intent.
The outcome has destroyed the surgical career of myself and had far-reaching and serious damaging consequences to myself and family and deprived my past, present and future patients of my otherwise competent and valuable capabilities and services for at least 10 years (2008 – 2018).”[70]
[70]Pages 22 – 23.
He says that:
“To correct the errors, wrongs and injustices and to prevent such happening again the matters exposed by this complaint, the very matters I have exposed here need to be properly and thoroughly investigated.”[71]
[71]Page 23.
In conclusion Mr Broadbent says (amongst other things):
“It is my submission that he [sic] events described above constitutes serious malfeasance and has:
(i)voided ab initio the charges raised by the QMB against myself;
(ii)impeached the decision of the QMB to prosecute myself; and
(iii)rendered the determinations of the Medical Tribunal/QCAT in 2010 both ultra vires and void.”[72]
[72]Pages 23 – 24.
It is apparent from Mr Broadbent’s inclusion of that complaint with his application for registration, on the basis that it provides further explanation of the issues he has with the Board and AHPRA as set out in the attachment to his application, that he intended for the Board to take those matters into consideration in assessing his application, including his contention that his undertaking should not preclude his return to practice. By extrapolation he would have those matters considered by the Tribunal in his appeal from the Board’s refusal of registration.
To do so would, in my view, be impermissibly to allow Mr Broadbent to attack the decision of QCAT and of the Court of Appeal.
The unavoidable conclusion is that Mr Broadbent for the reasons already identified seeks to re-litigate in the appeal from the Board’s decision all of the matters which he has previously litigated in the Tribunal and the Court of Appeal, and has attempted to re-litigate in other proceedings in various jurisdictions. It is without doubt a collateral attack on the decisions of the Tribunal and the Court of Appeal. It could barely be more so. It is as much a frontal assault as it is a collateral attack.
With his application for registration Mr Broadbent also provided an 11-page submission.[73] Consideration of that submission also leads to the conclusion that, by his application for registration and his appeal, Mr Broadbent seeks collaterally to attack the decisions of the Tribunal and of the Court of Appeal.
[73]The submission forms part of Exhibit CTH 22 to Ms Houston’s affidavit and is found at pages 704 to 714 of the exhibits to that affidavit.
In the submission, under the heading “Reasons” Mr Broadbent states:
“I resile from all former undertakings as they were made under undue duress and poor legal advice consequent to a torrent of false accusations and dubious evidence from the former and discredited Queensland Medical Board as is described hereafter.”[74]
[74]Page 1 of the Submission.
A number of observations should be made about this purported resiling from his undertakings.
First, it is included in a submission to the Board, not to the body to whom he gave his undertaking: the Tribunal. Secondly, it purports to relieve him of the burden of his undertaking by a unilateral act on his part. This is misconceived. If he were to be relieved of the burden of the undertaking at all, as the third part of the undertaking makes plain, it would be through an act of the Tribunal[75], not his own act. Thirdly, by purporting to “resile” from the undertaking he seeks to avoid one part of the undertaking itself; that he would not seek to be relieved of it. Fourthly, he purports to “resile” from the undertaking so as to do another of the very acts which he undertook not to do: re-apply to the Board for registration as a practising medical practitioner.
[75]A decision under s 241(d) requiring a registrant to enter into an undertaking is not a tribunal review decision amenable to review in the tribunal under Part 9 Division 4 of the Disciplinary Proceedings Act. It may be a decision amenable to re-opening under Part 7 Division 7 of the QCAT Act. Whether such a decision might be amenable to re-opening does not need to be resolved in this matter.
Analysed in this way, I am of the opinion that although the purpose of the appeal is one for which the law provides, in the circumstances of this case the purpose of Mr Broadbent’s appeal is not legitimate.
Even if the review of the Board’s decision not to grant him registration were a legitimate purpose of the appeal, the evidence overwhelmingly establishes that such is not the predominant purpose. The predominant purpose is clearly to re-agitate all of the matters which he has previously litigated in the Tribunal and the Court of Appeal (or at least has had the opportunity to do so) and has also attempted to re-litigate in other proceedings and various jurisdictions.
It is, without doubt, a collateral attack on the decisions of the Tribunal and the Court of Appeal. That this is so is evident also from all the material lodged by Mr Broadbent in support of his application for registration. It is also abundantly clear from the affidavit he has filed in these proceedings. One really needs look no further than the “simple terms” he promotes for releasing from his undertaking as he sets out at paragraph three of his affidavit. The vast majority of the matters he identifies there have nothing to do with his attaining registration as a medical practitioner as an end in itself. They are to do with a vindication of him contrary to the decisions of the Tribunal and the Court of Appeal.
Mr Broadbent makes further submissions
Following the hearing of this application in the Tribunal, Mr Broadbent has, on numerous occasions, filed further submissions.[172] Although filed without permission, I have considered them.
[172]10 February 2016: 13 July 2016: 18 July 2016: 26 July 2016: 18 August 2016: 10 February 2017: 18 April 2017: 2 May 2017.
The following is a non-exhaustive summary of issues raised by Mr Broadbent in his further submissions:
·During 2015 the Royal Australian College of Surgeons convened an independent expert advisory group which found evidence of entrenched bullying and sexual harassment amongst fellows of the College. Mr Broadbent contributed to the enquiry. The College accepted the findings of the advisory group. Sham peer review (a matter which Mr Broadbent has consistently claimed was at the centre of the Board’s case against him) has been used as a bar to advancement or as an avenue of destruction of arrival;
·That in 2015 he was elected by secret ballot of fellows to the Management Committee of the medico-legal section of the College despite not having participated in College affairs “since being forced retirement from practice in 2008”. He had co-founded the section in 1999. This, he says, goes to his credit and standing in the surgical community;
·During 2015 there were numerous enquiries into the workings of regulators, including the Board, and their dealings with registrants in which serious deficiencies in process and practice had been found;
·During 2015 a number of high profile cases “exposed remarkably similar modus operandi to those employed firstly by QMB and then AHPRA (as detailed in my affidavit) against myself”;
·Retired Judge The Honourable Geoffrey Davies QC publicly admonished the RACS for the “culture of protectionism (and its counterpart the professional assassination) by which unethical controlling of the advancement of individual surgeons is achieved”, which he says is supportive of the veracity of the facts and circumstances made in this affidavit;
·The Australian Senate has a scheduled public inquiry into bullying in the medical profession (particularly the conduct of AHPRA and AMB), confirming, he says, the legitimacy of points made in his affidavit;
·The independent exposure of bullying by the expert advisory group, particularly sham peer review goes to his credit;
·His affidavit evidence in regard to lack of natural justice, due process and procedural fairness is substantiated by findings in other cases;
·The misconceived submissions concerning s 379(2) and (3) of the Professional Standards Act were repeated;
·That ss 125, 126 and 127 were not applied by the Board to his application for registration
- [This submission is also misconceived as none of those sections apply to undertakings given to the Tribunal];
·A subsequent decision on costs in another matter supports his previous contention that the Tribunal erred in its costs decision;
·That the High Court of Australia had refused special leave to appeal from the judgment of the Federal Court of Australia which had allowed Mr Broadbent’s appeal from a judgment of the Federal Circuit Court of Australia that the Medical Board of Australia had no standing to bring bankruptcy proceedings against Mr Broadbent in respect of an alleged debt arising out of the Tribunal’s cost decision, the Medical Board of Australia not being the legal successor to the former Medical Board of Queensland. Mr Broadbent submitted that the Board’s conduct in respect of costs was “representative of the malice and win at all costs mindset of the Board and its directors to its legal representatives – who carry out the acts of bullying and bastardry.” This, he says, supports his contentions that the prosecution of him by the former Medical Board of Queensland “was flawed, as was the evidence advanced at the time, and that was also deliberately suppressed or not discovered”;
·That the RACS had “back-peddled seriously” on implementing promised reform in respect of bullying conduct by fellows and had resisted or blocked many historical complaints. As a concerned fellow and member of the Committee of the medico-legal specialist interest group Mr Broadbent had a duty to engage with the College and that as a consequence of his persistent and unwelcome approach to the Executive he was being subject to impeachment proceedings on the grounds that his agitating was damaging to the College and in which proceedings the College was raising his past and present issues with QCAT. Mr Broadbent says that all the issues now raised by the College are a consequence of its having failed to discipline errant fellows who would engage in sham reviews which, I have observed has always been, and remains at the centre of Mr Broadbent’s complaints against the Medical Board of Queensland because, he says, such sham review was at the heart of the Board’s case against him;
·That the report of a homicide investigation unit into his conduct, which occurred as a result of the review of cases conducted by a member of the senior criminal Bar as recommended by Mr Chesterman QC, had exonerated him from criminal conduct. All the allegations investigated were based on the evidence given to the Tribunal by Dr Woods, which Mr Broadbent says were “shown during the Tribunal hearing to be based on false, exaggerated and non-existent facts.”
- [In respect of this, I would simply observe that the fact that Mr Broadbent has been exonerated of any criminal conduct does not impeach the Tribunal’s reasons and findings that he engaged in unsatisfactory professional conduct];
·That the jurisdiction of the Health Quality and Complaints Commission and the Medical Board of Queensland was to perform their tasks in the manner that the relevant statute demands and that their failure to do so was jurisdictional error “which renders the eventual results of those failures ultra vires and void in accordance with Kirk v Industrial Relations Commission”;[173]
[173](2010) 239 CLR 531.
·The HQCC and the Medical Board “had sufficient information available to them to have the alternative and more likely correct diagnosis considered as the fundamental cause of Mrs MacLeod’s death as well as that of Mrs Pearce – information which was available at the time but which was negligently overlooked or discarded in breach of the statutory duties of the then HQCC and Medical Board”;
·Mr Broadbent then seeks to recast numerous issues raised previously, including before the Tribunal, as a discarding of “the proper statutory process of arriving at the truth of the matters”, including during the hearing in the Tribunal, leading to the Tribunal committing error;
·A “fresh diagnosis” of Mrs MacLeod suffering from Munchhausen’s Syndrome is advanced.
Although I have made some observations about some of these further submissions made by Mr Broadbent, it is unnecessary to address each of them. On this application it suffices to observe that they again further demonstrate that the predominant purpose of Mr Broadbent’s appeal is to comprehensively re-agitate all of the issues in the MacLeod and Pearce matters, again advancing his opinions as previously advocated with a view to having the Tribunal make findings contrary to its earlier findings.
The further submissions simply re-emphasise the collateral attack which Mr Broadbent seeks to make on the earlier decisions of the Tribunal and the Court of Appeal.
Conclusions on abuse of process and vexatious proceedings
Because the predominant purpose of the appeal is the re-litigation of the issues concerning the disciplinary proceedings relating to Mrs MacLeod and Mrs Pearce, with its inherent collateral attack on the earlier decisions of the Tribunal and the Court of Appeal, it is an abuse of process of the kind identified by Lord Diplock in Hunter v Chief Constable of the West Midlands Police, as referred to Greenwood J in His Honour’s judgment in the Federal Court proceedings.
It is an abuse of process of the kind identified by French CJ in Aon Risk Services Australia Ltd v ANU[174] when His Honour said:
“Abuse of process principles may be involved to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined.”
[174](2009) 239 CLR 175 at [33].
By his appeal, Mr Broadbent attempts to do both.
In my opinion the appeal is also vexatious. Whether it is so is a matter to be determined on the circumstances of the case and will include public policy considerations in the interests of justice.[175]
[175]Mudie v Grain River Pty Ltd (No. 2) [2003] 2 Qd R 271 at [37] per McMurdo P and Atkinson J.
In Oceanic Sun Line Special Shipping Company Inc v Fay,[176] Deane J said:
“Vexatious should be understood as meaning productive of serious and unjustified trouble and harassment”.
[176](1988) 165 1 CLR 197 at 247.
The circumstances of this case are that Mr Broadbent seeks to require the Board to re-litigate matters heard and determined several years prior to his application for registration having undertaken, upon the requirement of the Tribunal that he do so, never to make such an application. On the basis of his undertaking so given, with the further undertaking that he would never seek to be relieved of the burden of it, the Board withdrew disciplinary proceedings in respect of another 11 patients. Thus, as a direct consequence of his undertaking, numerous disciplinary matters were not pursued against him to their conclusion.
The Tribunal did not, as Mr Broadbent asserts, decide not to impose a penalty upon him. To the contrary, the Tribunal decided to take disciplinary action in the form of requiring him to give the Tribunal the undertaking in that form. That is a substantial penalty.[177] It is to be inferred that other substantial disciplinary action would have been taken against Mr Broadbent by the Tribunal had he not given the required undertaking. The purposes of the disciplinary action included to protect the public and to maintain public confidence in the health profession.[178]
[177]Fraser JA in the Court of Appeal referred to his as penalty at [2] of His Honour’s reasons.
[178]Section 123(a)(c) of the Professional Standards Act.
Public policy considerations and the interests of justice strongly favour this appeal being considered vexatious; and in my view it is.
Disposition
For those reasons, the appeal should be struck out pursuant to s 47 of the QCAT Act and I will so order.
Costs
The Board has applied for its costs. No submissions have been made on the issue.
The parties are to file any submissions which they wish to make on the issue of costs within 14 days of the publication of these reasons to the parties. Such submissions are to be limited to four pages.
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