Chaudhry v Medical Board of Australia
[2014] QCAT 343
| CITATION: | Chaudhry v Medical Board of Australia [2014] QCAT 343 |
| PARTIES: | Dr Muhammad Tahir Bashir Chaudhry (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR116-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 21 March 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 21 March 2014 (ex tempore) |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Direction 2 of Directions dated 30 January 2014 is vacated. 2. The matter be listed for a directions hearing at Brisbane at 9.15am on 21 March 2014. |
| CATCHWORDS : | PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where a party to a proceeding desires an adjournment of directions hearing – where there is no application - where there is no evidence of consent – whether the directions hearing should be adjourned |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms N Morgan of Minter Ellison |
| RESPONDENT: | Mr BP Wright instructed by McInnes Wilson |
REASONS FOR DECISION
On the 5th of March this year I vacated direction 2 of the directions that I had previously made on the 30th of January in this matter and listed the matter for directions today.
The direction which was vacated was one which had been made, as I say, on the 30th of January 2014 whereby the matter had been listed for a directions hearing on the 7th of March 2014. Those directions of the 30th of January were made consequent upon an application which had been filed on behalf of the applicant, Dr Chaudhry, in the Tribunal on 30 January 2014. The application was signed by the solicitors for the applicant on the 29th of January 2014. That application sought, amongst other things, to have a directions hearing which was then scheduled for the 31st of January vacated, and another directions hearing set at a later time following some further steps to be taken in the proceedings. The applicant concluded the request for that adjournment by observing that,
The applicant suggests the directions hearing be postponed until the end of February 2014.
Following the filing of that application on the 30th of January, the solicitors for the applicant emailed the registry of the Tribunal at 5.41 pm in the following terms,
Can you please advise whether the parties are required to attend at the directions hearing tomorrow morning at 9.30 or whether our application to postpone this directions hearing until late February 2014 was approved?
No explanation is provided as to why such a communication would be sent out of hours. Reflective, perhaps, of the way in which the registry of the Tribunal has been willing to facilitate matters for parties, at 6.37am on the 31st of January the officer of the registry to whom the email had been addressed replied to inform that an order had in fact been made vacating the directions hearing, and that the 7th of March was set as the new date for directions, that being a date upon which the Tribunal had scheduled directions hearings. That communication from the registry was met with this response from the solicitors for the applicant on 5 February 2014,
Unfortunately, our counsel has advised she is unavailable to appear at a directions hearing on 7 March 2014. Given both parties’ evidence will be received by the time of the next directions hearing, it would be prudent for counsel to appear so the matter can be promptly progressed. Counsel has advised she is available to attend a directions hearing on 21 February 2014, 21 March 2014 or 28 March 2014. Could you please advise whether these dates are suitable to his Honour and whether the directions hearing may able to be moved from 7 March 2014 to one of the above dates.
I should indicate that at that time, of course, there was an order of the Tribunal, and no application was made by the solicitors for the applicant to vacate the then set dates. The solicitors for the applicant were obviously aware that such an application was the appropriate course to take because it is the very course which they had taken which had resulted in that order being made. On 11 February 2014, the solicitors for the applicant again emailed the Tribunal through the registry saying:
We look forward to receiving your response in relation to our correspondence dated 5 February 2014.
On 13 February 2014, the solicitors for the applicant again emailed the registry saying, amongst other things,
We look forward to receiving your response regarding our correspondence dated 5 February 2014. We will file our client’s application in the Tribunal tomorrow,
being an application about unrelated matters also addressed in the email,
and await your prompt response in relation to same.
In the circumstances, the reference to a ‘prompt response’ is certainly open to the inference that there was an implied criticism of the registry in that, to that point, there had been no response to the familiar and regrettably informal correspondence seeking the vacating of the Tribunal’s orders. An application to actually vacate the orders was filed on the 4th of March 2014. I believe that I had indicated to the registry that I would not entertain the request that had been made in the solicitor’s email unless it was supported by an application. The application was in these terms:
The applicant seeks that the directions hearing currently scheduled for 7 March be adjourned until 21 or 28 March 2014. The applicant’s counsel is unavailable to appear on 7 March 2014 and, similarly, both solicitors with conduct of the matter on behalf of the applicant are on leave on 7 March 2014. It will be necessary for the applicant’s representatives at the upcoming directions hearing to be familiar with the issues and evidence to meaningfully participate at the directions hearing. The solicitor for the respondent has been on notice of the applicant’s unavailability to attend at that directions hearing on 7 March 2014 and requests for the matter to be heard on 21 or 28 March 2014 since 5 February 2014 and no objections have been raised.
By the expression ‘no objections have been raised’, one presumes that no consent had been provided. That was also evident from the fact that no draft order to be made by consent was furnished. Following that application being filed, the registry received communication from the solicitors for the respondent saying that they were happy for the directions hearing to be moved to Friday, 21 March 2014. In the event, I made the order which had been sought only because some communication was finally provided which indicated that it was not opposed by the solicitors for the Board.
I have taken the trouble of recording these matters because the communications by way of email with the registry, in my view, display an unfortunate level of presumption both as to the process which may be followed and that dates would simply be vacated, when those dates had been set at the request of a party, on the basis of unavailability of a party’s representatives. It is not the way in which a matter should be conducted in this Tribunal. I doubt it is the way in which the applicant’s solicitors would seek to conduct matters in other jurisdictions.
I have taken the trouble of recording the reasons because I intend to have them published in the hope that they might come to the attention of other parties and representatives who use the Tribunal’s processes so that it might be understood that such informality and presumption is not appropriate nor appreciated by the Tribunal in the conduct of matters such as this.
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