Medical Board of Australia v Broadbent
[2012] QCAT 120
•22 March 2012
| CITATION: | Medical Board of Australia v Broadbent [2012] QCAT 120 |
| PARTIES: | Medical Board of Australia (Applicant) |
| v | |
| Michael Russell Mark Broadbent (Respondent) |
| APPLICATION NUMBER: | HPF001-08 / HPF002-08 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 22 March 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Each party must bear their own costs of and incidental to these proceedings. |
| CATCHWORDS: | HEALTH PROFESSIONAL – DISCIPLINARY PROCEEDINGS – COSTS – Where the Board granted leave to withdraw proceedings – whether the registrant should be awarded costs on either an indemnity or standard basis Health Practitioners (Professional Standards) Act 1999, s 255 Broadbent v Medical Board of Queensland [2011] FCA 980 |
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 (QCAT Act).
REASONS FOR DECISION
Mr Broadbent has sought an order that the Board pay his costs, assessed on an indemnity basis, in relation to disciplinary investigations and proceedings brought against him by the Board. The Board argued the Tribunal should make no order as to costs in relation to these proceedings.
The Board commenced disciplinary proceedings against Mr Broadbent in the Health Practitioners Tribunal, a jurisdiction later assumed by QCAT. It filed a number of referral notices in relation to 13 patients. Procedural decisions by the former HPT resulted in the disciplinary proceedings involving two of the 13 patients being determined by a Tribunal (constituted by Judge Wall QC, assisted by Dr Richardson, Dr Powell and Ms Bolland). That Tribunal made disciplinary findings against Mr Broadbent on 10 June 2010.
After hearing from the parties on the issues of penalty and costs, the Tribunal accepted Mr Broadbent’s undertakings that he would retire permanently from medical practice, and would never reapply for registration in Australia as a practising medical practitioner or seek to be relieved of his undertaking.
The Tribunal also ordered Mr Broadbent to pay 70% of the Board’s costs of the hearing (not including investigation costs) (but including the costs of two counsel) to be assessed on the standard basis unless agreed.
After all avenues for appeal and any related proceedings were exhausted, QCAT granted the Board leave to withdraw the referrals relating to the remaining 11 patients. It did so on the basis that the statutory function the Board was required to fulfil would not be furthered by maintaining those proceedings, given the outcome from the proceedings involving the first two patients. Further, that decision conformed with the object of the Queensland Civil and Administrative Tribunal Act 2009 for proceedings in QCAT to be dealt with fairly, efficiently and economically.
Mr Broadbent’s submissions on this costs application run to 39 pages. They raise a number of matters QCAT cannot deal with, given the prior history of these and related proceedings.
Firstly, much of Mr Broadbent’s argument arises from the Board’s conduct of the proceedings in relation to the first two patients. All issues in relation to those two patients, including the Board’s conduct of and the costs of those proceedings, have been finally determined. To the extent that Mr Broadbent’s application relates to costs referrable to those proceedings, it must fail.
Secondly, Mr Broadbent has sought the costs of the Board’s investigation of other matters not the subject of any current or former proceedings brought before QCAT or its predecessor. Mr Broadbent has described these as “the 14 (or thereabouts) cases…selected from Pindarra Hospital”. As they are not before it, QCAT does not have the power to make a costs order under the Health Practitioners (Professional Standards) Act 1999, s 255. That is the only source of power identified for a costs order in these proceedings.
That section provides the Tribunal may make any order about costs it considers appropriate for disciplinary proceedings. Disciplinary proceedings are proceedings conducted by the tribunal under Part 9 of that Act. As the Pindarra Hospital cases are not the subject of such proceedings, QCAT cannot make any order about the costs of or arising from those investigations.
To the extent that Mr Broadbent’s application relates to the Pindarra Hospital cases, it must fail.
It is difficult to ascertain what costs remain after claims in relation to the first two patients and the Pindarra Hospital cases are excluded. Mr Broadbent has not obtained a Statement of Costs in relation to HPF001-08 and HPF002-08, as QCAT directed him to do. That may well be because he did not understand what was required.
Given QCAT’s decision on this application is that no order will be made about the costs of HPF001-08 and HPF002-08, there is no utility in pursuing compliance with that direction.
The Tribunal does not accept Mr Broadbent’s submission that the Board withdrew the remaining proceedings because its investigation was fundamentally flawed. The former Tribunal made the decision to hear only the allegations in relation to two patients because of the intolerable load that would, otherwise, have been placed on the Tribunal. Mr Broadbent was party to the decision about which patient’s cases would be heard first.
The evident purpose of proceeding in this manner was to test whether the decisions made about those two cases would have a bearing on whether it was either possible or necessary to maintain proceedings in relation to the remaining patients.
The resources available to the justice system are limited. The former Tribunal’s decision to proceed as it did was prudent management of those resources and was manifestly in the public interest. It does not mean the Board’s investigation of the remaining cases was fundamentally flawed.
It would not have been appropriate for the Board to resolve its position in relation to the remaining 11 patients until all avenues of appeal and related proceedings arising from the first two patients concluded. Mr Broadbent appealed to the Court of Appeal and applied to the Federal Court for other relief. He was unsuccessful in both proceedings. The Board’s application for leave to withdraw was made shortly after the Federal Court handed down its decision.
The Tribunal is not persuaded by Mr Broadbent’s allegations of bad faith, misfeasance, fraud, abuse of process and the like, levelled against the Board. Mr Broadbent has made similar allegations against the Board before:
a) in Supreme Court proceedings before Justice Phillipides in August 2008 (S8399/08) seeking judicial review of a decision by the Board;
b) in an application to the former Health Practitioners Tribunal to permanently stay or dismiss the disciplinary proceedings (heard by Judge Wall in September 2010); and
c) in the Federal Court proceedings before Justice Greenwood (Broadbent v Medical Board of Queensland [2011] FCA 980).
The allegations now maintained in this costs application are extravagant and unsupported by evidence.
The Board has made submissions that Mr Broadbent’s conduct has been unco-operative and resulted in increased delay and cost. All parties to proceedings in QCAT have a positive obligation to act quickly in any dealing relevant to the proceeding (Queensland Civil and Administrative Tribunal Act 2009, s 45). Arguably, it is an aspect of professional conduct that a practitioner is forthright and co-operative in proceedings to investigate and prosecute disciplinary matters.
Nevertheless, the Board has not asked QCAT to make an order against Mr Broadbent and there is little purpose served by making specific findings about the Board’s submissions on that score.
QCAT’s discretion to award costs under s 255 of the Professional StandardsAct, although unfettered, must be exercised judicially.
The Board’s application for leave to withdraw was timely. QCAT is not persuaded the Board acted improperly or in a way that exacerbated the time or cost of the proceedings.
The Board’s application to withdraw these proceedings conformed with the object that QCAT deal with matters in a way that is accessible, fair, just, economical, informal and quick and in accordance with the statutory requirement that QCAT proceed according to the substantial merits of the case (Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 28(2)). Given Mr Broadbent’s undertakings about future medical practise, there would be little point in pursuing allegations relating to the remaining 11 patients.
Even were it possible for QCAT to identify the costs that relate solely to HPF001-08 and HPF002-08, I am not persuaded I should make any order for costs against the Board, whether on a standard or indemnity basis. Each party must bear their own costs of and incidental to these proceedings.
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