Hettwer v Medical Board of Australia

[2015] QCAT 146

CITATION: Hettwer v Medical Board of Australia [2015] QCAT 146

PARTIES:	Dr Werner Hettwer (Applicant)
v
Medical Board of Australia (Respondent)

APPLICATION NUMBER: OCR301-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON: 29 April 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Dr Werner Hettwer is to pay the costs of the Medical Board of Australia of and incidental to the proceedings on the standard basis for matters in the District Court.

CATCHWORDS:

HEALTH PRACTITIONER – MEDICAL PRACTITIONER – COSTS – where the applicant applied for limited registration – where the Board refused the application on the basis the applicant provided fraudulent documentation – where the registrant sought a review of the Board’s decision – where the applicant withdrew the application – where the Board seeks an order for costs – whether the applicant should pay the Board’s costs of and incidental to the proceeding

Health Practitioner Regulation National Law Act 2009 (Qld)

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Dr Werner Hettwer applied to the Medical Board of Australia for limited registration in an area of need.  The Board decided to refuse Dr Hettwer’s application.  Dr Hettwer was notified of the decision in a letter from the Australian Health Practitioner Regulation Agency (AHPRA).

2. In the letter from AHPRA the reasons for decision were as follows:

   2.By your own admission, you have provided an employment confirmation in support of your application that was determined via an investigation to be falsified. You also provided a signed Curriculum vitae with inaccurate work experience.

   3.In accordance with the National Law [section 82(1)(c)(ii)] it would be improper to grant you registration as you have given the Board documents in relation to your application that are false or misleading in a material particular.

   4. Your submissions have confirmed your provision of false or misleading information, and have not adequately addressed concerns about this conduct, not have they demonstrated you’re a suitable person to hold limited registration.

   5. In accordance with sections 70(1) and 55(1)(h)(i) of the National Law, you are not a fit and proper person to hold registration in the profession.

1. Dr Hettwer filed an application in the Tribunal to review the decision of the Board.

2. Directions were made by the Tribunal for the Board to file a record book and statement of reasons, Dr Hettwer was directed to file the material upon which he intended to rely, and the matter was listed for a compulsory conference.

3. Dr Hettwer was granted leave to attend the compulsory conference by phone. He resides in Germany. As a result of the compulsory conference the Tribunal made directions that Dr Hettwer notify the Tribunal of his intention to proceed or otherwise with his application.

4. By email Dr Hettwer advised the Tribunal that “I have no interest in pursuing the matter further and wish to withdraw my application for review.”

5. By email the Board’s solicitor advised that the Board had no further comment “except that should the application be withdrawn by consent the parties will be at liberty to make further submissions as to costs.”

6. The Tribunal granted Dr Hettwer leave to withdraw his application.

7. The Board filed in the Tribunal submissions seeking an order that Dr Hettwer pay the Board’s costs of and incidental to the proceeding.

8. The Tribunal directed that the Board provide a copy of the submissions to Dr Hettwer and directed Dr Hettwer file any submission on costs he wished to make.

9. No submissions have been received from Dr Hettwer.

10. This matter proceeded as a review of a decision under s 199 of the Health Practitioner Regulation National Law (Queensland). Section 201 of that act provides that the Tribunal may make any order about costs it considers for the proceedings.

11. The Board submits that an order that Dr Hettwer pay its costs is appropriate, as:

    ·The Board is restricted to funding its regulatory functions from registration fees levied upon its registrants;

    ·The review application has been discontinued;

    ·The Board has acted in good faith in respect of the proceeding;

    ·The Board has not conducted itself in a way that delayed or lengthened the proceeding or in a manner that was likely to increase costs;

    ·The Board’s decision was necessary and was based on the provision of fraudulent documentation in support of Dr Hettwer’s application.

12. In my view, the Board should have its costs. It has been put to the expense of responding to an application which would appear to have had little merit and which was ultimately abandoned by the applicant.

    Order

13. Dr Werner Hettwer is to pay the costs of the Medical Board of Australia of and incidental to the proceedings on the standard basis for matters in the District Court.