Li v Medical Board of Australia (No 1)
[2013] QCAT 595
•1 November 2013
| CITATION: | Li v Medical Board of Australia (No 1) [2013] QCAT 595 |
| PARTIES: | Dr Wei Li (Applicant) |
| V | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR233-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 1 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for miscellaneous matters filed 1 November 2013, applying to the Tribunal for an order pursuant s 63 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) requiring the Manager, IELTS Office of IELTS Administrator UNSW Institute of Languages, 223 Anzac Parade, KENSINGTON NSW SYDNEY 2033, to produce documents, is refused. 2. The application for miscellaneous matters filed 1 November 2013, applying to the Tribunal for an order pursuant s 63 of the QCAT Act requiring the Manager, IELTS Office of IELTS Test Office, Level 2, Room 228, Campus Hub Building, C10A, Macquarie University, NSW, SYDNEY 2141, to produce documents, is refused. 3. The application for miscellaneous matters filed 1 November 2013, applying to the Tribunal for an order pursuant s 63 of the QCAT Act requiring the Manager, IELTS Office of Navitas English Test Centre, Level 1, 11 York Street, NSW SYDNEY 2000, to produce documents, is refused. 4. The application for miscellaneous matters filed 1 November 2013, applying to the Tribunal for an order pursuant s 63 of the QCAT Act requiring the Manager, IELTS Office of IELTS Administrator, UTS IELTS Centre, City Broadway Campus, Building 2, Level 5, Room 30 NSW SYDNEY 2007, to produce documents, is refused. 5. The application for miscellaneous matters filed 1 November 2013, applying to the Tribunal for an order pursuant s 63 of the QCAT Act requiring the Manager, IELTS Office of UWS College Test Centre, 158 Hawkesbury Road, WESTMEAD NSW SYDNEY 2145, to produce documents, is refused. 6. The application for miscellaneous matters filed 1 November 2013, applying to the Tribunal for an order pursuant s 63 of the QCAT Act requiring the Manager, IELTS Office of ICTE-UQ, Building 14, Cnr University Drive and Campbell Rd, St Lucia Campus, Brisbane QLD 4072, to produce documents, is refused. 7. The application for miscellaneous matters filed 1 November 2013, applying to the Tribunal for an order pursuant s 63 of the QCAT Act requiring the Manager, IELTS Office of Griffith University Griffith English Language Institute Test Centre M14, Lvl 5 International Bldg, 176 Messines Ridge Road, Mount Gravatt, Brisbane QLD 4122, to produce documents, is refused. 8. The application for miscellaneous matters filed 1 November 2013, applying to the Tribunal for an order pursuant s 63 of the QCAT Act requiring the Manager, IELTS Office of IELTS Brisbane Test Centre, 13 Manning Street, South Brisbane, Brisbane, QLD 4101, to produce documents, is refused. 9. The application for miscellaneous matters filed 1 November 2013, applying to the Tribunal for an order pursuant s 63 of the QCAT Act requiring the Manager, IELTS Office of QUT Test Centre, QUT International College, P Block, Level 3 (IELTS Test Centre Reception), Victoria Park Rd Kelvin Grove Campus, Brisbane QLD 4059, to produce documents, is refused. 10. The application for miscellaneous matters filed 1 November 2013, applying to the Tribunal for an order pursuant s 63 of the QCAT Act requiring the Manager, IELTS Office of IELTS Sydney Test Centre, Level 2, Suite 3, 139 Bathurst Street NSW SYDNEY 2000, to produce documents, is refused. 11. The application for miscellaneous matters filed 1 November 2013, applying to the Tribunal for an order pursuant s 63 of the QCAT Act requiring the Manager, IELTS Office of Macquarie University, IELTS Administrator, Room 110, Block T, 75 East Street NSW SYDNEY 2141, to produce documents, is refused. 12. The application for miscellaneous matters filed 1 November 2013, applying to the Tribunal for an order pursuant s 63 of the QCAT Act requiring the Manager, IELTS Office of University of Sydney Test Location, Level 5, room 501, Wentworth Building (GO1) Corner of City Road, and Butlin Avenue DARLINGTON NSW SYDNEY 2006, to produce documents, is refused. |
| CATCHWORDS: | PRACTICE AND PROCEDURE – where a party to the proceeding applied for a notice to produce – where the party sought documents be produced by third parties located interstate – where no evidence that the third parties are in possession or control of documents – where the notice required the production of documents in regards to events occurring one day before the date of compliance – whether the Tribunal should order the registrar to issue a notice to produce the documents requested Health Practitioner Regulation National Law (Queensland) s 156 Owen v Menzies & Ors [2012] QCA 170, cited |
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.
REASONS FOR DECISION
The Medical Board of Australia has today, Friday 1 November 2013, filed 12 applications each seeking an order pursuant to s 63 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) requiring various persons, namely the Managers of IELTS Administrator UNSW Institute of Languages, Kensington, Sydney; IELTS Test Office, Macquarie University, Sydney; Navitas English Test Centre, Sydney; IELTS Administrator, UTS IELTS Centre, Sydney; UWS College Test Centre, Westmead, Sydney; ICTE-UQ, St Lucia Campus, Queensland; Griffith University Griffith English Language Institute Test Centre, Mt Gravatt, Brisbane; IELTS Brisbane Test Centre, South Brisbane, Brisbane; QUT Test Centre, QUT International College, Kelvin Grove Campus, Brisbane; IELTS Sydney Test Centre, Sydney; Macquarie University, IELTS Administrator, Sydney; University of Sydney Test Location, Darlington, Sydney, to produce to the Tribunal the following documents:
a) Any document containing information relating to any attendance or attempt of the IELTS English examination/s by Dr Wei Li at this IELTS testing centre (between 16 August 2013 and 4 November 2013 inclusive) including, but not limited to, attendance date, examination time and any record of Dr Wei Li’s attendance at the examination; and
b) Any document containing information of Dr Wei Li’s results in such an examination attempt as referred to in paragraph 1(a) including, where that result is ambiguous, an explanation of that grade in comparison to the criteria “pass or fail”.
Each of the applications seeks an order requiring the production of the documents on or before 9:30am on Tuesday, 5 November 2013.
The hearing of Dr Li’s application seeking to set aside an immediate action decision taken by the Medical Board of Australia pursuant to s 156 of the Health Practitioner Regulation National Law (Queensland) is due to commence at 9:30am on Tuesday, 5 November 2013.
Section 63(1) of the QCAT Act provides that the Tribunal may make an order requiring a person who is not a party to a proceeding but who has, or is likely to have, in the person’s possession or control a document relevant to the proceeding, to produce the document to the Tribunal. Section 63(2) requires the person in relation to whom the order is made to comply with the order within the period stated in the order.
The reasons why the order is sought in each instance are stated to be as follows:
Pursuant to section 63 of the Queensland Civil and Administrative Tribunal Act 2009 the Respondent requests that the Tribunal make an order requiring the above named party to produce the information outlined in Annexure A to the Tribunal by the Hearing Date, Tuesday, 5 November 2013.
The Respondent believes it necessary for the Tribunal to have before it any information relevant to the proceedings, including any attempts by the applicant to comply with the Schedule of Conditions, dated 16 August 2013. The Respondent seeks this material in order that the Tribunal is fully informed of all relevant information to the proceeding.
One of the conditions imposed was that Dr Li will undertake the IELTS English language proficiency test a time acceptable to her. Whilst it may be that attempts at compliance with the conditions imposed by way of immediate action decision may be relevant to the review of that decision, that is not necessarily so. Certainly evidence of any attempts at compliance is not necessary to determine the issues before the Tribunal.
The reasons for seeking the orders set out in each of the applications do not in any way identify that the person or entity to whom the order is to be addressed in each instance has, or is likely to have, in their possession or control any document or thing that might be relevant to the proceedings. No statement is made to that affect at all.
In the absence of any such statement, I am of the view that the Tribunal should refuse the applications. The circumstances for issuing the order are not satisfied.
I would also refuse the application on other grounds.
As noted, s 63(2) requires compliance with the order by the person to whom it is directed. In terms, the order could not be complied with, even if issued today, until the close of business on Monday, 4 November 2013. That is because the orders as sought require the production of any documents relevant to events occurring during a period including 4 November 2013. Therefore, the order sought is that these persons, many of whom are interstate, produce relevant documents by 9:30am on the day following those events. The order may work in a manner which would be entirely oppressive in my view.
Furthermore, I am of the view that an order issued under s 63(1) of the QCAT Act would satisfy the definition of a “subpoena” in s 3 of the Service and Execution of Process Act 1992 (Cth).
Section 30(1) of the Service and Execution of Process Act provides, in respect of courts, that service of the subpoena is effective only if the period between service and the day on which the person to whom the subpoena is addressed is required to comply with the subpoena is not less than 14 days. The Court issuing the subpoena may allow a shorter period of time only if it is satisfied that the production of the document or thing specified is necessary in the interests of justice and there will be enough time for the person to comply with the subpoena without hardship or serious inconvenience, and to make an application under s 33 for relief in respect of the order: s 30(2). In my view, QCAT is a court for the purposes of the Service and Execution of Process Act.[1]
[1]QCAT Act s 164(1); Owen v Menzies & Ors [2012] QCA 170 at [17] per de Jersey CJ, [52] per McMurdo P.
I am not satisfied of the matters in s 30(2) and therefore would not allow a shortened period for compliance.
If I am wrong and QCAT is not a court within the meaning of that term in the Service and Execution of Process Act, then it would be a tribunal as defined in that act. Service of the order would require leave to be given by me under s 57 of Service and Execution of Process Act. The giving of leave is also conditioned upon the court (being the Tribunal Member) being satisfied that the production of the document is necessary in the interests of justice and that there will be enough time for the person to comply without hardship or serious inconvenience, and to make an application under s 61 to obtain relief in respect of the order.
I am not so satisfied.
I would also not permit an order in terms as sought in paragraph 1(b) of the annexure to each of the applications because, in my view, it is unclear as to what is required for compliance. It seems to require, on one view, the recipient to create a document explaining ambiguous results. That is not an order authorised by s 63(1) of the QCAT Act.
For all those reasons, I refuse the applications.