Health Ombudsman v Raynor (No 2)

The case of Health Ombudsman v Raynor (No 2) [2021] QCAT 128 involved the applicant, the Director of Proceedings on behalf of the Health Ombudsman, and the respondent, Brandon Raynor. The applicant sought a prohibition order against the respondent under the Health Ombudsman Act 2013 (Qld) s 113, which was eventually granted. Both parties subsequently applied for costs from the other. The legal issues before the court were whether the interests of justice required an order for costs under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(1), and if so, how much.

The court found that the default position under s 100 of the QCAT Act was that there be no order for costs, but the tribunal had the power to depart from that position if the interests of justice required it. The court considered the meaning and operation of this test in Marzini v Health Ombudsman (No 4) [2020] QCAT 365, and adhered to the views expressed in that decision. The court also considered the factors relevant to the interests of justice in disciplinary matters, as discussed in Health Ombudsman v Antley [2016] QCAT 472 by the Hon J B Thomas QC. The applicant relied on the fact that, under the QCAT Act s 43(2)(b)(ii), the parties had a right to legal representation, and that the Health Ombudsman's function was to protect the health and safety of the public. The court found that the respondent had acted in a way which had unnecessarily disadvantaged the applicant, and ordered that the respondent pay part of the costs of the applicant of and incidental to this proceeding, fixed in the sum of $3,000, such sum to be paid within twenty-eight days from the date of this decision.

The court's reasoning was that, while it was not unreasonable for the respondent to have resisted the making of a prohibition order, a number of matters were raised which were not relevant to the issues in the proceeding, and this would have prolonged the hearing, and caused the applicant to incur additional costs. Although the respondent is self-represented, he is obviously intelligent, and it should have been apparent to him that a number of the matters raised by him were irrelevant. The court considered that the interests of justice do require that the respondent make some contribution to the additional costs to which the applicant was put by the irrelevant issues which it was not reasonable for him to have raised. The QCAT Act encourages the Tribunal to fix costs if an order for costs is made, and one advantage of doing so is that it avoids further disputes between the parties over the issue of costs. On the whole, the court considered that the sum of $3,000 reflected a reasonable contribution on the part of the respondent to the applicant’s costs of the second day of the hearing, and having to deal with submissions which were lengthened by irrelevancies.