Health Ombudsman v Cheong - [2023] QCAT 152

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Cheong [2023] QCAT 152

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

IAN ROBERT CHEONG

(respondent)

APPLICATION NO/S:

OCR221-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 May 2023

HEARING DATE:

24 May 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Dr John Phipps
Dr John Quinn

Ms Jane Stuckey

ORDERS:

1.     The application for costs is dismissed.

2.     If there is any application for costs of this application, the following timetable applies:

(a)     any submissions to be filed and served within 14 days of today’s date;

(b)     any submission required to be filed and served within 14 days of receipt of the submission referred to in (a);

(c)     the application to be determined on the papers.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – regulation of health service providers – where the respondent was the subject of a referral of disciplinary proceeding – where there was factual dispute and a dispute about sanction – which approach to costs ought to be taken – whether the interests of justice require an order for costs

Queensland Civil and Administrative Tribunal Act 2009, s 62, s 100, s 102

Health Ombudsman v Antley [2016] QCAT 472

Health Ombudsman v Cheong [2022] QCAT 181
Health Ombudsman v Cheong (No.2) [2022] QCAT 354
Health Ombudsman v Fletcher(No. 2) [2021] QCAT 241
Health Ombudsman v Moosawi [2020] QCAT 391
Health Ombudsman v Moosawi (No. 2) [2020] QCAT 461
Health Ombudsman v Raynor (No. 2) [2021] QCAT 128
Nursing Midwifery Board of Australiav Laughlan (No. 2) [2019] QCAT 250

Tamawood v Paans [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 Act2009 (Qld)

REASONS FOR DECISION

On 22 May 2022, the Tribunal made a finding of professional misconduct and made disciplinary orders against the respondent.[1] The hearing that day proceeded on the basis of a further amended referral filed with the Tribunal on 8 February 2021, and the respondent’s amended response filed on 24 February 2021. The referral related to the respondent’s treatment of six patients at various times over the years, 2003 to 2015.
[1]Health Ombudsman v Cheong [2022] QCAT 181 (Cheong 1).
The hearing proceeded on the basis of an amended statement of agreed facts (ASOAF). As well as the disciplinary orders to which the parties agreed, with one minor exception, costs of the disciplinary proceedings were reserved. I did not set out a timetable for the determination of costs if either party made an application.
Some four months later, the applicant filed an application pursuant to section 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), seeking orders that the respondent produce a copy of his professional indemnity policy and other documents, and file an affidavit relating…

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: [2023] QCAT 152
Decision Date

CaseChat Overview and Summary

The Health Ombudsman sought an order for costs against Ian Robert Cheong, a medical practitioner, following a finding of professional misconduct against him. The Queensland Civil and Administrative Tribunal (QCAT) was required to decide whether the interests of justice required an order for costs in favour of the Health Ombudsman. The legal issues involved interpretation of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the statutory regime for costs in QCAT, and relevant authorities on costs in disciplinary proceedings against health professionals. The Tribunal considered the complexity of the dispute, the relative strengths of the claims, and the financial circumstances of the parties. It also considered the statutory presumption under section 100 of the QCAT Act that each party bears their own costs.

The Tribunal found that although the respondent's conduct was serious, both parties contributed to the delay in bringing the disciplinary proceedings. The complexity of the dispute was mitigated by the compromise reached between the parties, who agreed on sanction except for one minor issue. The Tribunal concluded that the interests of justice did not require an order for costs in favour of the Health Ombudsman, in whole or in part. The application for costs was dismissed.

The Tribunal made the following orders: (1) the application for costs is dismissed; (2) if there is any application for costs of this application, the following timetable applies: (a) any submissions to be filed and served within 14 days of today’s date; (b) any submission required to be filed and served within 14 days of receipt of the submission referred to in (a); (c) the application to be determined on the papers.

Orders