Malaguti v Orchard

Case [2020] QDC 242

DISTRICT COURT OF QUEENSLAND

CITATION:  Malaguti v Orchard [2020] QDC 242
PARTIES:  MANUELA MALAGUTI
(appellant)
v
ALFRED JAMIE ORCHARD
(respondent)
FILE NO:  320/19
DIVISION:  Civil
PROCEEDING:  Appeal
ORIGINATING  Southport District Court
COURT: 
DELIVERED ON:  25 September 2020
DELIVERED AT:  Southport
HEARING DATE:  3 August 2020
JUDGE:  Kent QC, DCJ
ORDER:  The appeal is dismissed.
I will hear the parties as to costs.

CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – HEALTH PRACTITIONERS REGULATION NATIONAL LAW – GENERALLY – where the appellant is a naturopath and self-titled ‘Senior Consultant of Integrative and Functional Medicine - Oncology – where the appellant was convicted of two sets of four charges pursuant to ss 116(1(b)(i) and 118(1)(b)(ii) of the Health Practitioner Regulation National Law (Qld) respectively – where those charges concerned content published on the appellant’s business website, business Facebook page, LinkedIn page and personal Facebook page – where the appellant appealed the decision of the learned Magistrate pursuant to s 222 of the Justices Act 1886 (Qld) – whether the content indicated or could reasonably be understood to indicate that the appellant was a health practitioner, namely in the medical profession, and that she was authorised or qualified to practice in a recognised speciality, namely medical oncology.

CASES:  Allesch v Maunz (2003) 214 CLR 180-1.
Certain Lloyds Underwriters Subscribing to Contract No.
IH00AAQS v Cross [2012] 248 CLR 378.
Commissioner of Police v Al Shakarji [2013] QCA 319.
Commissioner of Police v Broederlow [2020] QCA 161.
Crowther v Sala [2008] 1 Qd R 127.
Fox v Percy (2003) 214 CLR 118.
Hann v Director of Public Prosecutions (Cth) (2004) 144 A
Crim R 534
Lee v Lee (2019) 266 CLR 129.
McDonald v Queensland Police Service [2018] 2 Qd R 612.
Penev v The County Court of Victoria [2013] VSC 143.
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] 194 CLR 355.
R v Lagos [2003] QCA 121.
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR
679.
Rowe v Kemper [2009] 1 Qd R 247.
Teelow v Commissioner of Police [2009] 2 Qd R 489.
White v Commissioner of Police [2014] QCA 121.
LEGISLATION:  Acts Interpretation Act 1901 (Cth), s 15AA.
Acts Interpretation Act 1954 (Qld), s 14A.
Health Practitioner Regulation National Law (Qld), ss 5, 116
and 118.
Justices Act 1886 (Qld), s 222.
COUNSEL:  G Diehm QC for the Appellant
L Crowley QC with MJ Jackson for the Respondent
SOLICITORS:  Mills Oakley for the Appellant
Kingston Fox for the Respondent
Introduction 

  1. The appellant challenges her convictions in the Magistrates Court at Southport of eight offences against the Health Practitioner Regulation National Law (Queensland) (the “National Law”) pursuant to s 222 of the Justices Act 1886. My reasoning, set out below, is organised under headings as follows

- The relevant background
- The nature of the appeal
- A summary of the evidence
- The Magistrate’s findings and reasoning process
- For each of the grounds in…

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AGLC
Malaguti v Orchard [2020] QDC 242
Case
[2020] QDC 242
Decision Date

CaseChat Overview and Summary

In the matter of Malaguti v Orchard, the appellant, an unregistered health practitioner, was found guilty of contravening provisions of the National Law relating to claims to be registered as a health practitioner or a specialist health practitioner, as well as advertising provisions. The charges were brought by the Australian Health Practitioner Regulation Agency (AHPRA) on the basis that the appellant's activities, including the use of the title "oncologist" and the advertising of her services, indicated she was a registered health practitioner and thus contravened the National Law. The appellant appealed against her conviction and sentence on several grounds, including the admissibility of preliminary correspondence from AHPRA and the relevance of trademark evidence.

The primary legal issue was whether the appellant's use of the title "oncologist" and advertising of her services as an "integrated medicine practitioner" and "clinical integrated oncology" specialist could reasonably be understood to indicate she was a registered health practitioner or specialist. The court had to determine whether these descriptions contravened the National Law by falsely suggesting she was qualified to practice in a recognised specialty. This involved interpreting the relevant provisions of the National Law, considering the purpose of the Act to protect public health and safety by regulating the practice of medicine, and examining the context in which the descriptions were used.

The court found that the appellant's use of the term "medical oncologist" was sufficient to indicate she was qualified to practice in a recognised specialty, as medical oncology is a recognised field of specialty practice. The court rejected the appellant's argument that the omission of the term "physician" negated this conclusion. The court also found the preliminary correspondence from AHPRA to be relevant and admissible, despite the appellant's objections, as it provided context for the appellant's activities and the concerns raised by AHPRA. The court dismissed the appeal and will hear the parties regarding costs.

Orders

Orders of the court

The appeal is dismissed.

I will hear the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I will address all of the grounds of appeal in order, although the most overarching, and possibly the most important, are grounds 6 and 7, dealt with together below. These grounds occupied much of the oral argument. The evidence Preliminary Correspondence The prosecution was, in effect, brought on behalf of the Australian Health Practitioner Regulation Agency (“AHPRA”). AHPRA wrote to the appellant on 7 November 2017 raising concerns about her activities with reference to enclosed material including advertising from a number of sources which indicated or could reasonably be understood to indicate that the appellant was an “oncologist”[6]. Reference was made to a number of websites including a Facebook account. The correspondence indicated concern that the appellant’s activities may be contravening provisions of the National Law relating to claims to be registered as a health practitioner or a specialist health practitioner as well as advertising. Reference was made to s 116(1)(b) and 118(1)(b) of the National Law and concerns that the material could be reasonably understood to indicate that the appellant was a registered health practitioner and that she should not use the title “oncologist”. She was warned of possible consequences of contravention of the National Law and given an opportunity to respond. [6] This and other preliminary correspondence is the subject of a ground of appeal as to its admission, but it is set out here as part of the factual matrix It is common ground that the appellant has never been registered as a health practitioner or a specialist health practitioner with the Medical Board of Australia.[7] [7] See list of admissions, Document 1 in the bundle of exhibits (for clarity, I will refer to the “Bundle of Exhibits” which was before the Magistrate and is in a plastic binder. There is a court file document, No. 4, entitled “Exhibit Bundle”, which contains similar material in a different order. The exhibit numbers referred to are the ones in the binder). The appellant responded to APHRA’s letter on 13 November 2017. Her letter is on the letterhead of “Cassia Wellness Clinic”. She asserted that she has been a registered health professional for 20 years with “ATMS” (possibly a reference to the Australian Traditional Medicine Society, a group not affiliated with or regulated by AHPRA). The letter asserts she has never claimed to be a specialist practitioner, but rather to be a “specialist consultant of integrated oncology”. She acknowledged potential confusion and that she had rectified the wording on a number of websites.[8] [8] Exhibit 4 in the bundle of exhibits. APHRA wrote back on 28 November 2017 expressing its continued concerns in relation to the appellant’s self-description as an “integrated medicine practitioner” and her services as “clinical integrated oncology”.[9] [9] Exhibit 5. The response on 1 December 2017, was that the appellant had deactivated her Facebook page and website to be reviewed for “wordings in accordance to AHPRA directives”. There is then evidence that the defendant communicated with the practice manager of the Cassia Wellness Clinic on 21 December 2017 referring to an intensive course she had done on “integrative oncology” offered to “NDs” (possibly a reference to a naturopath) in Australia by an American ND, and saying that the phrase integrative oncology is widely used in the relevant commercial advertising. She expressed the belief that she was allowed to use these terms.[10] She later reasserted this entitlement in correspondence of 23 December 2017, attaching an article from the journal of National Cancer Institute, USA.[11] Further correspondence ensued, seemingly with each side entrenched in their contrasting positions. [10] Exhibit 7. [11] Exhibit 8.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In the context of that analysis, it is relevant to bear in mind that the charges under s 118, relating to claims by persons as to specialist registration, charge the appellant with using a description that, in the circumstances indicates or could be reasonably understood to be the case, the person is authorised or qualified to practise in a recognised specialty. Here, if the appellant is found to have used a description that in the circumstances indicates or could reasonably be understood to indicate that she was a medical oncologist, this would be a field of specialty practice and thus a field of the specialty of physician and in that way the elements of the legislation are satisfied. Thus the Magistrate was correct to find at T3, l 16 of the transcript of her decision that “medical oncology has been established as a specialty”. Consideration In my view, the respondent’s submissions on this point should be accepted. Particularly considering the overriding principle for administration of the Act, that the health and safety of the public are paramount, when one approaches the task of statutory construction in accordance with recognised principles (including the purpose of the Act, or the “mischief” the statute is intended to remedy, namely the protection of the health and safety of the public, by avoiding practice of aspects of medicine, intended to be regulated by the National Law, by unregistered practitioners[33]), the conclusion contended for by the respondent must be correct. It would, in my conclusion, be somewhat anomalous if, to use the analogy parallel to that advanced by the respondent, one could describe oneself as a “medical oncologist” and because the descriptor “physician” was not included, the person could not be found to have used a description capable of indicating that they were authorised or qualified to practise in a recognised specialty, notwithstanding the way in which the terms interrelate in the table. [33] See Commissioner of Police v Broederlow [2020] QCA 161 at [15]-[17] and the cases there referred to; also Acts Interpretation Act 1901 (Cth), s 15AA; Acts Interpretation Act 1954 (Qld), s 14A(1) Ground 2 – objection to admission of the preliminary correspondence The second ground advanced was that the preliminary correspondence referred to above should not have been admitted into evidence. The appellant argues that the evidence was irrelevant to the charges and it should have been excluded or alternatively regarded as providing no evidence tending to prove the guilt of the appellant. It is submitted that AHPRA wrote to the appellant about the content of various digital publications, several of which were not the subject of charges and making allegations of wrongdoing under a variety of provisions, several of which the appellant was not charged with. Further, it is submitted that the correspondence related to publications at a different date and was very generally expressed such as to raise doubt as to its relevance to the publications with which the appellant was charged. It is said that the Magistrate did not acknowledge these weaknesses in the evidence. Ground 3 – the trademark evidence