Jaravaza v Medical Board of Australia (No 3) - [2015] QCAT 29

CITATION:

Jaravaza v Medical Board of Australia (No 3) [2015] QCAT 29

PARTIES:	Dr Vengesai Stein Jaravaza (Applicant)
v
Medical Board of Australia (Respondent)

APPLICATION NUMBER:

OCR318-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON:

19 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The applicant pay the respondent’s costs of and incidental to the proceedings on the standard basis on the District Court scale.

CATCHWORDS:

PROCEDURE – COSTS – JURISDICTION – OTHER CASES – where the applicant brought an application to review the decision of the respondent – where the applicant withdrew his application – where the respondent had taken a number of steps in responding to the application – whether the applicant should pay the respondent’s costs of the proceeding

Health Practitioner Regulation National Law (Queensland), s 199, s 201

Jaravaza v Medical Board of Australia (No. 2) [2013] QCAT, 26 July 2013

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

On 2 October 2012 Dr Jaravaza filed in the Tribunal an application to review the decision of the Medical Board of Australia of 14 August 2012 to refuse his application for renewal of limited registration to practise in an area of need, in Gin Gin, Queensland.
On 12 October 2012 Dr Jaravaza’s solicitors sent an email to the Tribunal attaching an application for an interim order or injunction. The application sought a stay of the Board’s decision so that Dr Jaravaza could sit an Objective Structured Clinical Examination (‘OSCE’) on 21 October 2012.
On 21 December 2012 the Tribunal ordered the decision of the Board be stayed.
Dr Jaravaza enrolled to sit the OSCE examination in May 2013. On 3 July 2013 the Board’s solicitors wrote to Dr Jaravaza’s solicitors advising that they had obtained a list of candidate numbers who had passed the examination and noted that Dr Jaravaza’s ID number did not appear on the list. They requested that Dr Jaravaza’s solicitors advise of his results.[1]
[1]Affidavit of Christopher Dan Templeton filed by leave on 26 July 2013, CDT-9.
On 12 July 2013 Dr Jaravaza’s solicitors advised the Tribunal that they no longer acted for him.
At a directions hearing on 26 July 2013 Dr Jaravaza informed the Tribunal that he had sat the OSCE in May 2013 and had been unsuccessful. In light of this Dr Jaravaza sought to withdraw his application for review.[2]
[2]Jaravaza v Medical Board of Australia (No. 2) [2013] QCAT, 26 July 2013.
The Tribunal granted Dr Jaravaza leave to withdraw his application and directed that the parties file submissions in respect of costs.
The Board seeks an order that Dr Jaravaza pay its costs of and incidental to the proceeding.
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 appropriate for the proceeding.
The Board submits that an order that Dr Jaravaza pay its costs is appropriate as;
·Dr Jaravaza did not conduct himself appropriately during the course of the proceeding by failing to comply with the Tribunal’s directions;
·The Board funds its regulatory functions from registration fees levied upon its registrants;
·The Board has conducted itself appropriately and has not in any way delayed the proceedings or increased the likely cost of the proceedings.
Dr Jaravaza advised the Tribunal that he did not intend to file any submissions on costs.
The Board’s submission that Dr Jaravaza did not conduct himself appropriately in this proceeding is based on an alleged failure to disclose all documents in his possession custody or control relevant to examinations he had sat whilst in Australia and documents relating to the final determination made by the Determining Authority.
In an affidavit of Christopher Dan Templeton, filed by leave on 26 July 2012, correspondence between the Board’s solicitors and Dr Jaravaza’s solicitors is exhibited. The non-compliance to which the Board refers in its submissions is the failure of Dr Jaravaza’s solicitors to provide documents relating to the final determination of the Determining Authority in accordance with the Tribunal’s directions of 25 January 2013.
When the Board initially received from Dr Jaravaza a list of documents in accordance with the Tribunal’s directions of 25 January 2013 it raised that the list was inadequate, stating “We suspect that if your client engaged solicitors to act on his behalf with respect to [the] Medicare Determination then they would maintain a file in relation to that matter over which your client has control”.
On 7 March 2013 Dr Jaravaza’s solicitors confirmed, via email, that solicitors were appointed in the Medicare Determination by the Medical Indemnity Protection Society and those solicitors had been contacted and the file requested.[3]
[3]CDT-2.
On 27 February 2013, 12 April 2013, 17 April 2013 and 12 June 2013 the Board requested that Dr Jaravaza’s solicitors provide a copy of the Medicare Determination documents. On each occasion Dr Jaravaza’s solicitors replied that they had not received the documents from the solicitors who acted in the Medicare Determination.[4]
[4]CDT-2, CDT-7, CDT-8.
Attached to the affidavit of Mr Templeton is a series of emails between Dr Jaravaza’s current solicitors and the solicitors who acted in the Medicare Determination. These emails show that Dr Jaravaza’s solicitors initially contacted the solicitors who acted in the Medicare Determination in March 2013 and received a reply and engaged in discussions for the purpose of obtaining the documents in June 2013.
The Board submits that it has conducted itself appropriately in these proceedings. It is evident from the correspondence exhibited to Mr Templeton’s affidavit that Dr Jaravaza’s solicitors had raised issues with what they perceived as the Board’s failure to disclose documents in accordance with the Tribunal’s directions.
In an email of 7 March 2013 Dr Jaravaza’s solicitors raised that there were documents, including the minutes of meetings of the Queensland Registration Committee of the Medical Board of Australia, the record confirming those minutes, the decision of the Committee, the Committee’s recommendation and a record relating to Dr Jaravaza’s registration, which they considered within the scope of the Tribunal’s directions on disclosure and which had not been included on the list of documents provided by the Board.
The Board’s solicitors provided the minutes of the Committee’s meetings, the decision of the Committee and the recommendations of the Committee on 8 March 2013 and advised that they would seek instructions on the remaining documents.[5] On 12 April 2013 the Board’s solicitor advised that they were not obliged to disclose the further documents.[6] In an email on that same day Dr Jaravaza’s solicitors asked for an explanation as to why the board considered the documents exempt. By letter of 17 April 2013 the Board’s solicitors replied:
The direction made by the Deputy President on 25 January states that:
-The Board must give a list of all documents before the Board in making the decision by 4pm on 15 February 2013. (our emphasis)
This order clearly restricts the extent of our client’s disclosure to the documents considered by the Board at its meeting of 14 August 2012. The documents disclosed in our list of documents represents all the material considered by the Board at that meeting.
[5]CDT-3.
[6]CDT-5.
Dr Jaravaza’s solicitors replied by email on 23 April 2013;
His Honour’s 25 January 2013 direction does not restrict the extent of your client’s disclosure only to documents physically before the Board at its meeting of 14 August 2012. Those documents we have specified are those referred to in the decision under review.
As the intent and effect of His Honours direction extended to all materials considered / involved / relevant to the Board in making their September 2012 decision, we ask that the relevant documents are disclosed to us.
If you do not believe that the documents fall within the scope covered by His Honour’s direction, please provide an affidavit from a representative of the Medical Board confirming that the documents we have specified in my 7 March 2013 email were not before the Board in reaching its decision.
On 12 June 2013, in response to an email from the Board’s solicitors enquiring as to whether Dr Jaravaza’s solicitor had received the Medicare determination file, Dr Jaravaza’s solicitors enquired as to whether the Board’s solicitor had obtained such an affidavit. On 3 July 2013 the Board’s solicitor replied by letter;
We have previously expressed our view that these documents fall outside the scope of the Deputy President’s orders for disclosure. However, our client has instructed us to disclose these documents where they exist.
The Board then stated that two of the documents requested, being the record confirming the minutes of meetings in August and January 2012 did not exist. They stated that confirming the minutes of a meeting was a process of approving a draft of the minutes as an accurate representation of what occurred at the meeting.
The third and final document in issue was the 2 March 1999 record/certificate relating to Dr Jaravaza’s special purpose registration. The Board’s solicitors informed Dr Jaravaza’s solicitor that the Board did not have such a record but attached a letter dated 22 March 1999 that was sent to Dr Jaravaza advising him of his conditional registration and enclosing his registration certificate.
It is evident that the Board has been put to considerable effort and expense in responding to Dr Jaravaza’s review application; an application which he has now withdrawn.
The stay which he was granted was in the context of permitting him to sit the further examination which he subsequently failed. That failure occasioned the withdrawal of his application. That is understandable. In light of the further failure his prospects of succeeding in his application were very low, to the point of being negligible.
In those circumstances, the Board should have its costs. It is funded by the contributions of members. It was bound to respond to Dr Jaravaza’s application; now withdrawn when facing almost inevitable failure.
Dr Jaravaza will be ordered to pay the Board’s costs of and incidental to the proceedings on the standard basis on the District Court scale.