LCK v Health Ombudsman (No 2) - [2020] QCAT 460

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

LCK v Health Ombudsman (No 2) [2020] QCAT 460

PARTIES: LCK

(applicant)

v

HEALTH OMBUDSMAN

(respondent)

APPLICATION NO/S:

OCR316-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 December 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:
1. The respondent pay the applicant’s costs of and incidental to the proceeding, to be assessed on a standard basis on the District Court scale.

2. The costs if not agreed be assessed by a costs assessor who is an approved costs assessor for the purpose of the Uniform Civil Procedure Rules 1999, as agreed by the parties, or failing agreement, as appointed by the Tribunal.

3. The costs be paid within twenty eight days of the ascertainment of the amount by assessment or agreement.

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – regulation of health practitioner – review of immediate registration action – registration action revoked before hearing – approach to costs orders – whether the interests of justice require an order for costs

Queensland Civil and Administrative Tribunal Act 2009 s 100, s 102

Colagrande v Health Ombudsman [2017] QCAT 107

Marzini v Health Ombudsman (No. 4) [2020] QCAT 365

Tamawood Ltd v Paans [2005] 2 Qd R 101

APPEARANCES & REPRESENTATION:

Applicant:

L J Marshall, instructed by Gilshenan and Luton

Respondent:

C Wilson, instructed by the Office of the Health Ombudsman

REASONS FOR DECISION

The applicant brought an application to review immediate registration action taken by the respondent on 9 August 2019, when the respondent placed conditions on the registration of the applicant which, in essence, prevented the applicant from treating any female patients. At the conclusion of the hearing on 3 August 2020 the Tribunal decided that the conditions imposed on the registration of the applicant by the respondent be removed, and that there be no conditions imposed on his registration, with reasons for the decision to be given in due course. Those reasons were delivered on 7 September 2020, when a non-publication order was also made: [2020] QCAT 316.
When delivering those reasons, submissions were invited as to costs. Submissions were subsequently received from both parties. The applicant sought his costs of the proceeding, to be assessed on a standard basis on the District Court scale. The respondent submitted that the parties should bear their own costs. Recently, in Marzini v Health Ombudsman (No. 4) [2020] QCAT 365 I considered the operation of the relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 dealing with costs, s 100 and s 102, which are the provisions which apply to this application. The respondent did not submit that that analysis was in error, and I adopt what I said in that matter.
At the time when those reasons were delivered, I thought that the approach of the respondent was inconsistent with the decision of the Tribunal in Colagrande v Health Ombudsman [2017] QCAT 107, where conditions similar to those imposed on the applicant were removed, and chaperone conditions were imposed, as being all that was necessary to protect public health and safety. I commented in footnote 23 that that decision “does not seem to have been taken to heart” by the respondent. Where a practitioner has a right to have immediate registration action decisions of the respondent reviewed by the Tribunal, I consider that the respondent should be guided in its approach by earlier decisions of the Tribunal, and that in this matter the respondent had not had due regard to that decision. It is true that the circumstances of that practitioner and the present were different, but overall they clearly favoured the present applicant. That seemed to be to be relevant to the question of costs.
Since then I have realized that one difference between the situation in Colagrande and that in the present case is that the former matter was decided under the section before it was amended to include the reference to “public interest”. It appears that the respondent has taken the attitude that the effect of that amendment was to require a toughening-up of the immediate registration action taken in the case of charges, and convictions, of serious offences, particularly sex offences. To some extent that may be justified, but it remains a matter where there is another factor to consider in deciding what action, if any, is appropriate under s 58. It does not seem to me that the Act in its amended form requires that in such a case there be necessarily something more added to the restrictions imposed on top of what is considered necessary to avoid any serious risk to the health or safety of the public.[1] To some extent, the issue might depend on what action is justified by the serious risk consideration.
[1] That appears to be the attitude of the respondent expressed in its correspondence to the applicant of 18 June 2019. I regard that approach as wrong in principle, but it must be recognized that there was no authority to that effect at the time.
At the time the action was taken in the present case, there was little available authority on the effect and operation of the newly inserted public interest provision, and that provision was relied on in this proceeding. Hence, the fact that the approach of the respondent appears at first glance to be inconsistent with the decision in Cotagrande is not of such significance.
There are a number of factors relevant to the question of costs. First, this is a case where the applicant had a right to legal representation, which is significant because the no costs starting point in the QCAT Act compliments a no legal representation approach. Where is there is a right to legal representation, the comments of Keane JA (as his Honour then was) in Tamawood Ltd v Paans [2005] 2 Qd R 101, particularly at [30] – [33], become relevant.
Another relevant factor was that, at the time the relevant decision was taken, the respondent had available ample medical evidence explaining how behaviour which was out of character came about, and expressing the opinion that the applicant posed a very low risk of reoffending. That was clearly important to the question of the existence of a serious risk, but it was also relevant to the issue of the public interest, because of the importance of mental illness in a proper assessment of the criminality of the offending. As I said in my earlier reasons, I consider that the respondent took a superficial approach to the offending, which also failed to recognise that the offending, although sexual, was quite a minor example of a sexual offence.
The respondent’s action, although said to be responsive to the criminal conviction, was anything but immediate: the conviction was on 17 February 2019, and action was not taken until almost six months later. Some time was reasonably occupied giving a show cause notice, and receiving a response, but the show cause process was not initiated until four months after the conviction. Ironically, the decision occurred a matter of days after the independent health assessor provided a report which cleared the applicant to return to practice.
The respondent not only made no attempt to resolve the matter in dispute, there was a strangely uncompromising attitude displayed in the conduct of the proceeding. Proposals from the applicant for less restrictive conditions were brushed aside. An application to vary, made after the review application was filed, was rejected. The respondent refused to take part in a compulsory conference on the ground that there would be no resolution of the dispute without proceeding to a hearing.[2] It was submitted that the respondent was not in a position to negotiate a settlement, because of the nature of the dispute. It could of course have removed the conditions itself, or modified them, which would be to the same effect, and relieved the Tribunal from deciding the matter. It just did not want to. As well, the matter could have been decided on the papers had the respondent not wanted to crossexamine the applicant. The matter could certainly have been resolved or simplified by the respondent had it chosen to do so. Even at the hearing, the respondent persisted in the obdurate attitude it had maintained throughout the proceeding.[3]
[2] Letter from the respondent to the applicant’s solicitors, 2 December 2019.
[3] It even briefed senior counsel to attempt to defend its position.
The respondent attempted to drag into consideration the details of an earlier dispute between the applicant and his then employer, which the Tribunal was in no position to assess properly, and which was irrelevant to the issue of immediate registration action, except that it provided the explanation for the development of the applicant’s psychiatric condition. This underlines the fact that it was necessary for the applicant to come to the Tribunal, and to incur legal costs, to receive justice in this matter.
The attempt to draw support from the earlier workplace dispute resulted in the matter becoming more complex, unnecessarily and inappropriately. There was already some element of difficulty in the matter, because of the element of public interest, and the limited jurisprudence in that area, which produced an element of complexity not present in an application made in relation to matters where the legal position is well established.
Another action which added unnecessary complexity was the respondent’s insistence that the hearing book include a mass of documents which were quite unnecessary and irrelevant. This produced a hearing book much larger than was necessary. The applicant’s submissions contained an estimate that the hearing book was twice as large as it needed to be; my estimate is that it was three times as large, that is, two thirds of the pages were just waste paper.
There were multiple copies of documents, which is quite inappropriate. It is very annoying to waste time reading a document, only to realise at the end that the reason for its familiarity is that it is another copy of a document already in the brief, rather than, say, a later, modified version. There were numerous example of unnecessary duplication, indeed multiplication, of documents in this hearing book. I counted five unnecessary copies of the report of Dr Varghese of December 2018; three unnecessary copies of his report of February 2019, two unnecessary copies of his report of March 2019, and one unnecessary copy of his report of November 2018. There may have been more. There were also five unnecessary copies of Dr Madsen’s report of February 2018, and at least one unnecessary copy of Dr Alcorn’s report. It was not only medical reports which were duplicated unnecessarily.
Wisely, no attempt was made to justify this in the respondent’s submissions; it is unjustifiable.[4] The mere fact that a document in a hearing book had attached to it a copy of another document already in the hearing book provides no justification for inserting a second copy of that document. I was told that, when negotiating the content of the hearing book, the applicant’s solicitors proposed the exclusion of duplicate copies of documents, and the respondent insisted that they go in. That means that there is not even the excuse that this occurred through inadvertence; it looks very like an exercise in being difficult for the sake of it. Such behaviour is totally unacceptable, particularly in a public body.
[4] With the exception of the inclusion of a second transcript of the Magistrates Court proceeding, where the respondent argued that it was necessary to include both the unauthorized transcript it used in the original decision, and the authorized transcript approved by the Tribunal. That is not excusing the duplication, it is compounding its inappropriateness.
This was not the only deficiency in the hearing book. There were masses of medical records of the applicant, to which no reference was made by either side during the hearing. This included over a hundred pages of handwritten notes taken by Dr Varghese which were not only irrelevant, they were utterly unintelligible. Even if there had been a smoking gun lurking within them, nobody was ever going to spot it! How anyone could think such material apt to be included in a hearing book defies belief. This was by no means the only unnecessary material in the hearing book, but it was the most obviously useless.
The respondent said that its function on an application such as this is to assist the Tribunal to come to the correct or preferable decision. If the respondent is labouring under the illusion that it somehow assists the Tribunal for it to shovel into the hearing book copies of every document it has come upon in the course of its investigation, regardless of relevance, let me now disabuse it.[5] The requirement under s 21 of the Act and the practice direction is to include potentially relevant documents; there is no obligation to include irrelevant documents. It is not a matter for the Tribunal to dig around in this material to see if it can identify some relevant consideration which has not become apparent to the parties. For the Tribunal to act in such a way would give rise to natural justice difficulties.
[5] The submission was actually made by the respondent that providing information which became available in the course of the ongoing investigation assisted the Tribunal, and informed the Tribunal in reaching its decision: para 11. Almost none of that information was referenced in the earlier reasons, and virtually all of it was of no assistance at all, and was obviously never going to be.
The respondent sought to rely on the terms of certain directions as to the content of the hearing book; but those directions were not made after any consideration of the question of whether any particular document should or should not be included. A direction on 25 November 2019 required the respondent to file copies of documents “which are relevant to the Tribunal’s review … .” It was certainly not the case that the Tribunal was in some way requiring the parties to include irrelevant documents in the hearing book
What the Tribunal needs is a hearing book which contains those documents and other material which one party or the other proposes to rely on during the hearing, by which I mean, rely on in a realistic and practical way; the respondent cannot just put everything it has before the Tribunal, and then baldly say it relies on all of it. If the Tribunal wants anything not in the brief, it can always ask for it. If during the hearing some additional document becomes relevant, it can be tendered as an exhibit then. The hearing book should not be cluttered up with documents neither party intends to rely on, and hence refer to, in submissions, unless they are documents which need to be read by the Tribunal in order to understand a relevant chronology, and how the relevant decision came to be made, where that is relevant.
Most of the irrelevant material was in the form of exhibits to affidavits filed after the s 21 documents had been filed. Some of this was referred to in crossexamination, but no mention was made of the bulk of it by senior counsel for the respondent. Having an excessively large hearing book is not only a burden on the Tribunal and on the assessors, it places additional costs on the applicant, costs which the respondent still maintains the applicant should bear personally. That is at least unreasonable behaviour. It falls within s 102(3)(a) of the QCAT Act. So does the inflexible attitude of the respondent in the proceeding, and in relation to the immediate registration action generally.
I have already said something about the nature and complexity of the dispute. As to the relative strength of the claims, it was obvious at the hearing that the applicant had a very strong case, and the respondent a very weak one, although it did not appear to recognise that. After hearing the cross-examination, and the submissions of the parties, it was obvious to the Tribunal that the conditions imposed by the respondent should be set aside, and indeed that no immediate registration action was appropriate, and that order was made at once. That is a clear indication of the respective strengths of the cases.
There was no denial of natural justice by the respondent. As to the financial circumstances of the parties, the applicant had suffered already substantial financial adversity as a result of losing his employment following the conviction, and the action of the respondent on the evidence deprived him of virtually any capacity to work as a doctor at all. To the extent that his financial circumstances are relevant, they excite sympathy; there is nothing in the financial circumstances of the respondent which are relevant to deter a costs order against it. I have already referred to other matters I consider are relevant.
Overall, I consider that the interests of justice clearly require that the respondent pay the applicant’s costs of and incidental to this proceeding, which should be assessed on the standard basis on the District Court scale. I have given serious consideration to ordering that the respondent pay the costs of the duplicated documents, and other unnecessary and irrelevant material in the hearing brief, on the indemnity basis. I certainly regard the attitude of the respondent in putting in all that material so unreasonable as to amount to misconduct.
I expect however that there has been no prior matter where such an order has been made, and it may be that the respondent has become casual in assessing the relevance of material to be included in a hearing brief. If so, that should stop. I give fair warning that, if a case as bad as this, in terms of the inclusion of unnecessary material in a hearing brief, comes before me in the future, I will not hesitate to order that all the costs associated with the hearing brief be paid by the party responsible, on the indemnity basis.[6] In the present case, the hearing brief issue just provides support for the making of a costs order at all.
[6] That should not be taken to mean that a party will not be at risk of such an order if the future hearing brief is not quite as bad as this one was.
The Tribunal orders that the respondent pay the applicant’s costs of and incidental to the proceeding, to be assessed on a standard basis on the District Court scale. The costs if not agreed be assessed by a costs assessor who is an approved costs assessor for the purpose of the Uniform Civil Procedure Rules 1999, as agreed by the parties, or failing agreement, to be appointed by the Tribunal. The costs are to be paid within twenty eight days of the ascertainment of the amount by assessment or agreement.