Cruceru v Medical Board of Australia (No 2)

[2014] QCAT 689

CITATION: Cruceru v Medical Board of Australia (No 2) [2014] QCAT 689

PARTIES:	Nicolae Cruceru (Applicant/Appellant)
v
Medical Board of Australia (Respondent)

APPLICATION NUMBER: OCR098-14

MATTER TYPE: Occupational regulation matters

HEARING DATE: 17 October 2014

HEARD AT: Brisbane

DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON: 17 October 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The Application to review a decision is dismissed.

2.    The applicant is to pay the respondent’s costs of and incidental to the application as assessed on the standard basis on the District Court Scale.

CATCHWORDS:

PROCEDURE – COSTS – JURISDICTION – OTHER CASES – where the applicant brought an application to review the decision of the respondent – where the application was dismissed by consent – whether the applicant should pay the respondent’s costs

Health Practitioner Regulation National Law (Queensland), s 67, s 67(4)

Nigah v Medical Board of Australia [2014] QCAT 204

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr GJ Smart of SR Wallace & Wallace

RESPONDENT: Mr RG Fryberg instructed by McInnes Wilson

REASONS FOR DECISION

1. The solicitors for the applicant, Dr Cruceru, have indicated the applicant’s consent to dismissal of his substantive application for review this afternoon.

2. The background to that is that Dr Cruceru’s registration the subject of the review proceedings was limited registration for an area of need. Such registration is governed by s 67 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). Section 67(4) of the National Law makes plain that if the National Board grants registration to enable a practitioner to practise in an area of need, that practitioner must not practise the profession other than in the area of need specified in the practitioner’s certificate of registration.

3. Dr Cruceru’s limited registration for the area of need in anaesthetics at the Mackay Base Hospital was a matter the subject of consideration in the earlier, stay proceeding in this matter, which was heard by me on 30 May 2014.

4. In the reasons granting the stay delivered on 12 June 2014 the significance of the area of need declaration which supported the limited registration of Dr Cruceru to practise medicine in Australia was identified.  At paragraph 20 of the reasons it was identified that the effect of the expiration of his, then, current area of need declaration on 30 June 2014 would be that there would be no position for which he held registration to practise.  That was in accordance with an earlier decision of the Tribunal in Nigah v Medical Board of Australia [2014] QCAT 204.

5. At paragraph 34 of those earlier reasons I observed that should the area of need declaration not be renewed the further condition would be unnecessary.  Dr Cruceru would not be able to continue to practise; his registration being limited to meet that area of need.  Staying the decision to impose the condition would not affect that outcome.

6. In my view, Dr Cruceru could have been in no doubt at that point in time as to the significance of the expiration of his, then, current area of need.  In allowing the stay I did so on the basis that although there was no evidence in the proceedings to that point on the issue, it had been indicated, first, that an application concerning the area of need underpinning Dr Cruceru’s registration would be made and, secondly, that evidence would be called concerning that matter at the hearing.  It was in that light that the observations at paragraph 34, to which I have referred, were made.

7. In an affidavit filed and sworn today, Mr Smart identifies that he has been informed from inquiries which he has made, that the area of need declaration did in fact expire on 30 June 2014 and that a new area of need declaration application was made at some point, but which was withdrawn on the 18^th of August 2014. 

8. In light of the expiration of the former area of need declaration these proceedings were robbed of all utility, because even if a further area of need declaration was made, Dr Cruceru’s registration the subject of these proceedings would not have permitted him to practise in respect of that area of need.  He would have required further limited registration of the Board to practise in that area of need.

9. In my view, given that the area of need was such an evident issue in these proceedings and the inevitable result was that upon its expiration on 30 June 2014 without further extension, it having been extended in the past, it was patent at that point in time that there was no utility in these proceedings.  It is regrettable that it has taken until now for the proceedings to have been concluded. 

10. In my view, however, there is no reason why the Board ought not have its costs of and incidental to the application on the standard basis.  That too is consistent with the observations which I made in the earlier decision on the stay wherein, notwithstanding that the stay application was successful, I awarded the Board’s costs in any event, because the stay was granted in circumstances where the potential to advance issues which hadn’t been advanced on the evidence in the stay application had been identified, and which Mr Fryberg of counsel had fairly and frankly on behalf of the Board identified were better dealt with in the one proceeding, given that that would proceed by way of a de novo hearing.  In the event, however, there is nothing further to be ventilated.  The Board should have its costs.  They will be costs on the standard basis of and incidental to the proceedings.