Brown v Nursing and Midwifery Board of Australia

[2013] QCAT 49

CITATION: Brown v Nursing and Midwifery Board of Australia [2013] QCAT 49

PARTIES:	Deidre Ann Brown (Applicant)
v
Nursing and Midwifery Board of Australia (Respondent)

APPLICATION NUMBER: OCR138-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 5 February 2013

DELIVERED AT: Brisbane

ORDERS MADE:     1.    Ms Deidre Ann Brown must pay the Nursing and Midwifery Board of Australia costs of and incidental to the proceedings assessed on the standard basis against the District Court Scale of costs.

CATCHWORDS:

COSTS – where Board requested order as to its costs – principles that should be applied where the power is in broad general terms – whether costs should be awarded

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

Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364, distinguished
Nursing and Midwifery Board of Australia v Sanam [2011] QCAT 290, followed

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).

REASONS FOR DECISION

1. By letter of 27 March 2012, the Nursing and Midwifery Board of Australia imposed conditions upon Ms Brown’s registration.  In April 2012, Ms Brown applied to the Tribunal for a review of those conditions.  In October 2012 Ms Brown was given leave to withdraw her application.

2. The Board sought its costs of the proceedings. Ms Brown submits that the Tribunal should not award costs. She says that s 100 of the Queensland Civil and Administrative Tribunal Act 2009 states that each party should bear their own costs of the proceeding unless an enabling Act provides otherwise.  Ms Brown says there is no provision for costs in the enabling Act.

3. Ms Brown has referred the Tribunal to the decision of Ascot v Nursing and Midwifery Board of Australia[1] in support of her submission that the enabling Act does not make any provision for costs.

   [1] [2010] QCAT 364.

4. Ms Brown acknowledges that the Tribunal can make an order for costs if the interests of justice require it[2] and the QCAT Act sets out those matters for the Tribunal’s consideration.[3]  Ms Brown says that she has not acted in a way that unnecessarily disadvantaged the Board.  She says that the dispute was not complex and that it was reasonable for her to file the claim.  Ms Brown says she has suffered financial loss because of the Board’s decision and she will continue to suffer financial loss.

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

   [3] Ibid, 102(3).

5. Ascot v Nursing and Midwifery Board of Australia was a decision of the Tribunal under the Nursing Act 1992.  Ms Brown is correct in her assertion that there is no alternative provision for costs in that Act.

6. However, the relevant legislation for Ms Brown’s application is the Health Practitioner Regulation National Law Act 2009. Section 201 of that Act allows the Tribunal to make any order about costs it considers appropriate for the proceedings.

7. In Nursing and Midwifery Board of Australia v Sanam[4], Deputy President Kingham stated:

   The Board’s request was made in recognition of the fact that the costs  of disciplinary proceedings are derived from the registration fees paid by members of the profession.  In this case, the investigation, the preparation for hearing and the costs  of the hearing itself have resulted in the Board incurring significant costs.  It can be expected that the Tribunal would usually make an award of costs where unsatisfactory professional conduct is proved.

   [4] [2011] QCAT 290 at [5].

8. Those considerations apply equally here.  The costs of disciplinary proceedings are derived from registration fees.  The Board has incurred costs in providing the s 21(2) documents and attending the compulsory conference.  The disciplinary measures imposed by the Board did not change.  There is, therefore, reason to impose costs in this matter.

9. I acknowledge that Ms Brown acted reasonably in the conduct of her claim.  I also acknowledge that she is financially disadvantaged by the conditions the Board imposed.  However, I am persuaded that the disciplinary nature of the proceedings; the Board’s obligations to provide material to the Tribunal and the fact that these costs are borne by all registrants favours an order for costs against Ms Brown.

10. Ms Deidre Ann Brown must pay the Nursing and Midwifery Board of Australia costs of and incidental to the proceedings assessed on the standard basis against the District Court Scale of costs.