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Health Ombudsman v du Toit

Health Ombudsman v du Toit

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SUPREME COURT OF QUEENSLAND

CITATION:

Health Ombudsman v du Toit [2024] QCA 235

PARTIES:

HEALTH OMBUDSMAN
(appellant)
v
GEORGE DU TOIT
(respondent)

FILE NO/S:

Appeal No 8298 of 2024
QCAT No 194 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2024] QCAT 205 (Judicial Member Dick SC)

DELIVERED ON:

22 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2024

JUDGES:

Flanagan and Boddice and Brown JJA

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – where the appellant decided to take disciplinary action against the respondent by imposing conditions on his specialist medical registration, without notice to him – where the respondent sought a review of the appellant’s decision before the Queensland Civil and Administrative Tribunal – where the Tribunal found in the respondent’s favour and set aside the appellant’s decision – where further submissions were filed as to costs – where the Tribunal awarded costs to the respondent – where s 100 of the Queensland Civil and Administrative Tribunal 2009 (Qld) provides that each party usually bears their own costs – where s 102 gives the Tribunal power to make a costs order if the interests of justice require it to make the order – where the appellant contends that the Tribunal erred in awarding costs to the respondent – whether the Tribunal erred

Health Ombudsman Act 2013 (Qld), s 57, s 58, s 59(4), s 94(1)(a)(i)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 9(2), s 11, s 17, s 43, s 100, s 102, s 149

Health Ombudsman v Antley [2016] QCAT 472, considered
Lee v Medical Board of Australia (No 2) [2016] QCAT 321, cited
Marzini v Health Ombudsman (No 4) [2020] QCAT 365, applied
Medical Board of Australia v Wong[2017] QCA 42, considered
Medical Board of Queensland v Heiner [2008] QHPT 001, cited
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231, considered
Pound v Queensland Building and Construction Commission [2023] QCAT 298, considered
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, not applied
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, cited
Tamawood Ltd v Paans [2005] 2 Qd R 101; [2005] QCA 111, considered

COUNSEL:

J R Jones, with G F Perry, for the appellant
J R Hunter KC, with C D Templeton, for the respondent

SOLICITORS:

McCullough Robertson for the appellant
Moray & Agnew for the respondent

THE COURT: This is an appeal from a decision of a judicial member of the Queensland Civil and Administrative Tribunal in relation to an order for costs. The order of the Tribunal was that the appellant pay the respondent’s costs of the proceedings, on the standard basis to be assessed on the District…

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] QCA 235
Decision Date: 22 November 2024

CaseChat Overview and Summary

The appellant, the Health Ombudsman, sought to impose conditions on the respondent's specialist medical registration, a decision made without notifying the respondent. The respondent challenged this decision in the Queensland Civil and Administrative Tribunal (QCAT), which subsequently ruled in his favour and annulled the Health Ombudsman's decision. Following this, the respondent applied for costs, which QCAT awarded. The Health Ombudsman appealed against the award of costs to the Queensland Civil and Administrative Appellate Authority, arguing that QCAT had erred in granting the costs to the respondent.

The central issue for the appellate authority was whether QCAT correctly exercised its discretion under section 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) when it awarded costs to the respondent. The statute generally mandates that each party bears their own costs, but it allows for an order to be made if the interests of justice so demand. The Health Ombudsman contended that QCAT had not adequately justified its decision to award costs to the respondent, thus misapplying the statutory provision.

The appellate authority reviewed the proceedings and found that QCAT had comprehensively considered the factors relevant to a costs order, including the nature of the proceedings, the respondent's success, and the conduct of both parties. The authority concluded that QCAT had not erred in its discretion to award costs to the respondent, as it was satisfied that the interests of justice warranted such an order. The appellate authority therefore dismissed the Health Ombudsman's appeal, affirming QCAT's decision to award costs to the respondent.

The final order was that the appeal by the Health Ombudsman was dismissed, with costs to be paid by the Health Ombudsman to the respondent. This included the costs awarded by QCAT, thereby upholding the decision of the lower tribunal in its entirety.

Orders

Orders of the court

Appeal dismissed with 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Health Ombudsman v du Toit [2024] QCA 235
PARTIES:	HEALTH OMBUDSMAN (appellant) v GEORGE DU TOIT (respondent)
FILE NO/S:	Appeal No 8298 of 2024 QCAT No 194 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal – [2024] QCAT 205 (Judicial Member Dick SC)
DELIVERED ON:	22 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2024
JUDGES:	Flanagan and Boddice and Brown JJA
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – where the appellant decided to take disciplinary action against the respondent by imposing conditions on his specialist medical registration, without notice to him – where the respondent sought a review of the appellant’s decision before the Queensland Civil and Administrative Tribunal – where the Tribunal found in the respondent’s favour and set aside the appellant’s decision – where further submissions were filed as to costs – where the Tribunal awarded costs to the respondent – where s 100 of the Queensland Civil and Administrative Tribunal 2009 (Qld) provides that each party usually bears their own costs – where s 102 gives the Tribunal power to make a costs order if the interests of justice require it to make the order – where the appellant contends that the Tribunal erred in awarding costs to the respondent – whether the Tribunal erred Health Ombudsman Act 2013 (Qld), s 57, s 58, s 59(4), s 94(1)(a)(i) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 9(2), s 11, s 17, s 43, s 100, s 102, s 149 Health Ombudsman v Antley [2016] QCAT 472, considered Lee v Medical Board of Australia (No 2) [2016] QCAT 321, cited Marzini v Health Ombudsman (No 4) [2020] QCAT 365, applied Medical Board of Australia v Wong[2017] QCA 42, considered Medical Board of Queensland v Heiner [2008] QHPT 001, cited New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231, considered Pound v Queensland Building and Construction Commission [2023] QCAT 298, considered Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, not applied SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, cited Tamawood Ltd v Paans [2005] 2 Qd R 101; [2005] QCA 111, considered
COUNSEL:	J R Jones, with G F Perry, for the appellant J R Hunter KC, with C D Templeton, for the respondent
SOLICITORS:	McCullough Robertson for the appellant Moray & Agnew for the respondent