du Toit v Health Ombudsman - [2024] QCAT 205

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

du Toit v Health Ombudsman [2024] QCAT 205

PARTIES:

GEORGE DU TOIT

(applicant)

v

HEALTH OMBUDSMAN

(respondent)

APPLICATION NO/S:

No. OCR 194 of 2022

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

29 May 2024

HEARING DATE:

On-Papers Hearing

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J M Dick SC

ORDERS:

The respondent pay the applicant’s costs of and incidental to the proceeding on the standard basis, to be assessed on the District Court scale of costs.

CATCHWORDS:

ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — review of immediate registration action under Health Ombudsman Act 2013 (Qld)

ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — COSTS — where the practitioner commenced review proceedings — where the Health Ombudsman was found to have acted improperly in imposing immediate registration action — approach to costs — whether the interests of justice require an order for costs — order for costs on the standard basis made

Health Ombudsman Act 2013 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

du Toit v Health Ombudsman [2023] QCAT 373

Marzins v Health Ombudsman (No 4) [2020] QCAT 365

Tamawood Ltd v Paans [2005] QCA 111; [2005] 2 Qd R 101

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

On 15 November 2023, the Tribunal ordered that the Health Ombudsman’s decision of 27 June 2022 be set aside.[1] The applicant applies for an order for costs of and incidental to the proceedings on the standard basis, to be assessed on the District Court scale of costs.
[1]du Toit v Health Ombudsman [2023] QCAT 373 (‘Review Decision’).
Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that, other than as provided for under the Act, each party to a proceeding must bear its own costs. However, s 102(1) provides that the Tribunal may order costs if the Tribunal considers the interests of justice require it to make an order. Subsection (3) sets out various factors to which the Tribunal may have regard in considers whether to make an order.

Section 102(3) considerations and the Applicant’s submissions thereon

Whether a party has acted in a way that unnecessarily disadvantages another party.

The applicant submits that the Health Ombudsman acted to disadvantage him in the following ways:
(a)The Health Ombudsman received Dr Woodward’s (referred to as Dr Francis in the judgement) on 21 June 2022. Despite not making the decision under review until 27 June 2022, she did not provide Dr Woodward’s report to the applicant in the interim or invite submissions from him.
(b)The Health Ombudsman formed her belief largely based on the evidence of Dr Woodward, whose initial report was critical of the applicant’s management of 12 patients. Later, after reviewing 31 patients (including the initial 12) he provided a report…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QCAT 205
Decision Date: 29 May 2024

CaseChat Overview and Summary

The decision in du Toit v Health Ombudsman involved a review of an immediate registration action imposed by the Health Ombudsman under the Health Ombudsman Act 2013 (Qld). The applicant sought an order for costs of and incidental to the proceedings on the standard basis, to be assessed on the District Court scale of costs. The application arose from a decision by the Health Ombudsman to set aside the immediate registration action imposed on the applicant, a medical practitioner, on 27 June 2022. The applicant argued that the Health Ombudsman had acted improperly in imposing the immediate registration action, and as such, costs should be awarded in his favour. The applicant submitted that the Health Ombudsman had acted to disadvantage him in several ways, including by not providing a report from Dr Woodward to him in the interim and inviting submissions from him, forming her belief largely based on Dr Woodward's evidence, and seeking to uphold her decision by reference to the power to take immediate action.

The legal issues before the Tribunal were whether the interests of justice required an order for costs, and if so, on what basis. The Tribunal considered the factors set out in s 102(3) of the QCAT Act, including the complexity of the case, the conduct of the parties, and the outcome of the proceedings. The Tribunal noted that the matter was complex, with over 12,000 pages of evidence, multiple expert reports, complicated medical evidence, five days of oral testimony, and lengthy closing submissions. The Tribunal made no serious criticisms of the applicant’s performance or management, and only mentioned his practice in relation to his note-taking and leadership, both of which he freely conceded and which the Tribunal said did not pose a serious risk to patients. The Tribunal concluded that the applicant was entitled to legal representation to assist him to litigate a complex matter, and that he was successful. There were no countervailing considerations sufficient to say it was not in the interests of justice to award the applicant costs.

In light of the above, the Tribunal ordered that the respondent pay the applicant’s costs of and incidental to the proceeding on the standard basis, to be assessed on the District Court scale of costs. The Tribunal considered the principles set out in Tamawood Ltd v Paans, where Keane JA concluded that there were three reasons why the Tribunal had erred in not awarding costs. The Tribunal found that each party was justified in engaging the services of legal representatives to assist them in the conduct and defence of what the Tribunal recognised to be complex proceedings. The Tribunal erred in failing to appreciate the implication of this finding for an understanding of where the interests of justice lay in relation to the costs of the proceedings. If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.

The Tribunal further noted that in the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome. The Tribunal found that the applicant was entitled to legal representation to assist him to litigate a complex matter, and that he was successful. There were no countervailing considerations sufficient to say it was not in the interests of justice to award the applicant costs. Therefore, the respondent pay the applicant’s costs of and incidental to the proceeding on the standard basis, to be assessed on the District Court scale of costs.

Orders

Orders of the court

The respondent pay the applicant’s costs of and incidental to the proceeding on the standard basis, to be assessed on the District Court scale of costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 15 November 2023, the Tribunal ordered that the Health Ombudsman’s decision of 27 June 2022 be set aside.[1] The applicant applies for an order for costs of and incidental to the proceedings on the standard basis, to be assessed on the District Court scale of costs.[1]du Toit v Health Ombudsman [2023] QCAT 373 (‘Review Decision’). Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that, other than as provided for under the Act, each party to a proceeding must bear its own costs. However, s 102(1) provides that the Tribunal may order costs if the Tribunal considers the interests of justice require it to make an order. Subsection (3) sets out various factors to which the Tribunal may have regard in considers whether to make an order. The applicant submits that the Health Ombudsman acted to disadvantage him in the following ways:(a)The Health Ombudsman received Dr Woodward’s (referred to as Dr Francis in the judgement) on 21 June 2022. Despite not making the decision under review until 27 June 2022, she did not provide Dr Woodward’s report to the applicant in the interim or invite submissions from him.(b)The Health Ombudsman formed her belief largely based on the evidence of Dr Woodward, whose initial report was critical of the applicant’s management of 12 patients. Later, after reviewing 31 patients (including the initial 12) he provided a report critical of the applicant’s management of the patients, but with one of the original 12 not pressed. Five days before the hearing, that number was reduced to 10. In four of the five cases abandoned, the applicant was not the primary surgeon. This fact had been pointed out in a submission sent on 22 June 2022 and in an affidavit by the applicant filed on 23 March 2023. In any event, at the time of the impugned decision, the Health Ombudsman had in her possession records which showed the applicant was not the primary surgeon in the relevant cases. This resulted in the applicant’s expert having to address these patients and other wasted preparation.(c)The Health Ombudsman sought to uphold her decision by reference to the power to take immediate action because it was “otherwise in the public interest” advancing the contention that concerns about the applicant’s performance had been “widely reported causing significant community anxiety” however, she did not lead evidence at the hearing of any media reporting. The parties agree that the matter was complex, in that:(a)there was over 12,000 pages of evidence;(b)the expert evidence included multiple reports from each expert, and ran to over 1100 pages;(c)the expert evidence involved complicated medicine which required a careful analysis;(d)there was 5 days of oral testimony; and (e)the closing submission by each party ran to over 50 pages. In its reasons, the Tribunal made no serious criticisms of the applicant’s performance or management and only mentioned his practice in relation to his note-taking and leadership, both of which he freely conceded and which the Tribunal said did not pose a serious risk to patients.

Ratio Decidendi

Legal Principle Established

In Tamawood Ltd v Paans,[5] Keane JA (as his Honour then was) concluded that there were three reasons why the Tribunal had erred in not awarding costs. His Honour said of the first of those reasons:First, the Tribunal found that each party was justified in engaging the services of legal representatives to assist them in the conduct and defence of what the Tribunal recognised to be complex proceedings. That finding alone could be, in my view, a sufficient basis to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. The Tribunal erred in failing to appreciate the implication of this finding for an understanding of where the interests of justice lay in relation to the costs of the proceedings.…If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.…In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome.[6][5][2005] QCA 111; [2005] 2 Qd R 101 (‘Tamawood’).[6]At [30], [32]–[33] (emphasis added). In this case, the applicant was entitled to legal representation to assist him to litigate a complex matter. He was successful. There can be no criticism of him for pursuing his rights and despite the spirited defence of the respondent’s decision up to and including the Tribunal hearing. I cannot find the countervailing considerations sufficient to say it is not in the interests of justice to award the applicant costs. The Respondent pay the Applicant’s cost of and incidental to the proceeding on the standard basis, to be assessed on the District Court scale of costs.