Hermann v Medical Board of Australia (No 1)

[2023] QCAT 59

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hermann v Medical Board of Australia (No 1) [2023] QCAT 59

PARTIES:

robert louis hermann

(applicant)

v

medical board of australia 

(respondent)

APPLICATION NO/S:

OCR092-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 March 2023

HEARING DATE:

1 March 2023

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

ORDERS:

1.     The tribunal hearing scheduled for 7 and 8 March 2023 is delisted.

2.     The matter is listed for a two day tribunal hearing on 14 and 15 March 2023 to commence at 11am on 14 March 2023.

The Tribunal directs:

3.     For the duration of the tribunal hearing, the Tribunal will be constituted by a judicial member sitting alone.

4.     The applicant has leave to appear at the tribunal hearing by audio-visual link.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – REVIEW APPLICATION – ADJOURNMENT – where applicant seeks review of the respondent’s decision to refuse his application for registration – where the matter had been listed for a tribunal hearing – where the respondent’s counsel was unavailable on the date nominated by the Tribunal – whether the matter should be adjourned – whether the Tribunal should be assisted by health assessors 

Health Ombudsman Act 2013

Health Practitioner Regulation National Law

Nowlan v Medical Board of Australia (No 2) [2020] QCAT 38

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

1. On 1 March 2023 the Tribunal issued a decision to adjourn the hearing dates in this proceeding. These are the reasons for that decision.

2. In this review proceeding Dr Hermann seeks a review of the decision of the Medical Board of Australia (Board) of 15 March 2022 to refuse to grant him provisional registration as a medical practitioner under the Health Practitioner Regulation National Law (National Law). 

3. By application dated 27 February 2023 the Board seeks an adjournment[1] of the hearing which has been set down for two days on 7 and 8 March 2023. The basis of the application was an inability to retain counsel on those days.  

   [1]The Tribunal has discretionary power to adjourn a proceeding: s 57(1)(c) Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

4. The Tribunal sought availability from the parties in December 2022. The matter was listed in accordance with that availability. Regrettably, that fact was not communicated to the parties in such time as to secure those dates in the diary of counsel for the Board.

5. When the fact of the listing was communicated to the parties, the Board responded immediately advising of Counsel’s unavailability. The Board had previously provided updated availability to the Tribunal; however, this had not been further considered because the matter had already been listed (albeit that had not been communicated).

6. When the Board initially raised its difficulty with the Tribunal, the Tribunal indicated that the matter would remain as listed as, at that time, there were several weeks until the hearing was listed. Since that occurred, the Board made significant endeavours to secure alternative counsel, but to no avail[2].    

   [2]Paragraph 10 of the affidavit of Lachlan James Baird affirmed 27 February 2023 in support of the application.

7. The Board has indicated that Counsel is available on 14 – 17 March 2023; one week after the currently listed hearing.

8. Dr Hermann, the applicant, who is self-represented, opposed the application for the adjournment, on the basis that as he is self-represented, the Board can also be and further, that solicitors acting for the Board could appear. He has advised the Tribunal that whilst he has to take time off work, he would be able to change the dates to others proposed by the Board with minor inconvenience[3].

   [3]Email from Dr Hermann 28 February 2023 12.37pm.

9. As this proceeding is a disciplinary proceeding within the meaning of that term in the Health Ombudsman Act 2013[4](HO Act), a party is entitled to legal representation.  The Board has acted properly and communicated properly with the Tribunal about the availability of its representatives in the context of the listing. It is unfortunate the listing was not communicated to the parties earlier.  Whilst it is disappointing that the Board was then unable to retain other counsel, that is not an unknown occurrence.

   [4]See Schedule 1 Dictionary and Gupta v Medical Board of Australia [2015] QCAT 12 at [28] – [31] per Judge Horneman-Wren SC.

10. If the adjournment is granted, the matter will proceed only one week after the current listing.  Thus, the delay, whilst doubtless frustrating for Dr Hermann, is short.

11. The power is a discretionary one, which involves considering the various statutory objectives for QCAT to be fair, just, economical, informal and quick, cognisant of how those objectives may best be met in the circumstances of an individual matter.

12. In this case, the Board is entitled to be legally represented and has acted properly in its communications about the availability of its chosen legal representatives. Further, the delay caused by the adjournment is short.   The Tribunal will, in the circumstances, vacate the listing of the matter for 7 and 8 March 2023 and list it instead for hearing on 14 and 15 March 2023 commencing on 14 March 2023 at 11am.

13. The Board’s solicitors have also referred the Tribunal to Nowlan v Medical Board of Australia (No 2) [2020] QCAT 38 in support of a submission that it is not necessary for the judicial member to be assisted by assessors because the application is not one where Dr Hermann is a ‘registered health practitioner’. As such, the Board submits section 126 of the HO Act does not operate to require assessors to be appointed to assist the Tribunal.

14. The Tribunal refers to Dr Hermann as “Dr Hermann” as it understands from the parties’ submissions filed on the review application that he holds registration as a doctor internationally[5].

    [5]Submissions of the Board 6.4A; submissions in response of Dr Hermann 3.3.

15. However, a ‘registered health practitioner’ is defined as a registered health practitioner or student under the National Law[6].  It is apparent from the terms of the Board’s decision that Dr Hermann does not come within that definition in so far as being a ‘registered health practitioner’; that is the status he is seeking to attain. There is no evidence he is a student within the meaning of that definition. 

    [6]Schedule 1 HO Act.

16. As such, consistent with Nowlan (No 2), the Tribunal directs the matter will be listed to be heard by a judicial member without assessors.