Medical Board of Australia v Pearse [No. 2]
[2018] QCAT 24
•1 February 2018
CITATION:
Medical Board of Australia v Pearse [No. 2] [2018] QCAT 24
PARTIES:
Medical Board of Australia
(Applicant)
v
Dr Glen Nicholas Pearse
(Respondent)
APPLICATION NUMBER:
OCR210-13
MATTER TYPE:
Occupational regulation matters
HEARING DATE:
On the papers
DELIVERED ON:
1 February 2018
DELIVERED AT:
Brisbane
HEARING DATE:
The matter was determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act [2009]
DECISION OF:
Horneman-Wren SC DCJ
ORDER:
1. There be no order as to costs in the proceeding
Appearance and representation (if any): the matter was heard on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act [2009].
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where professional misconduct not made out – where implausibility of allegations against applicant only evident upon full review of evidence by Tribunal – where general principle that each party to a proceeding must bear their own costs – where discretion to order costs pursuant to s102 Queensland Civil and Administrative Tribunal Act 2009 – whether interests of justice require a costs order be made against the respondent
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
On 4 November 2015, the tribunal dismissed a referral by the Medical Board of Australia in which it alleged that Dr Pearse had behaved in a way that constituted professional misconduct.
Dr Pearse seeks his costs; some portion of which on an indemnity basis. The Board submits that no order for the costs should be made.
For the reasons which follow there will be no order for costs in the proceeding.
Relevant statutory provisions
At the time which the Board referred the disciplinary matter to the tribunal pursuant to s 193 of the Health Practitioner Regulation National Law costs of the proceedings were governed by s 195 of the National Law. In submissions filed on behalf of Dr Pearse, s 201 of the National Law is identified as the relevant provision. It is not. Section 201 related to appeals from appellable decisions under Part 8, Division 13 of the National Law. The matter before the tribunal was not such an appeal.[1]
[1]The cases in the tribunal referred to in footnotes 20, 21 and 22 to the submissions of Dr Pearse in which the tribunal discussed the nature of the discretion under s 201 were all cases for appeals under part 8, div 13, not disciplinary matters referred under p 8, div 12. Nonetheless, the discretions conferred by both s 195 and s 201 are expressed in identical terms. Each is a broad general discretion to be exercised judicially. However, considerations which may be taken into account in determining an order about costs which the tribunal considers appropriate may be different, and would include the differing nature of the proceedings under divs 12 and 13.
Section 195 of the National Law was repealed on 1 July 2014.[2] There is nothing in the amending legislation which preserved the operation of s 195 in respect of proceedings referred to the tribunal before the date of the repeal.[3]
[2]Health Ombudsman Act 2013, s 326; 2013 SL 211. Section 201 was also repealed on the same day by operation of the same legislation.
[3]Health Ombudsman Act 2013 ss 21 and 23.
Clause 34(1)(b) of Schedule 7 to the National Law provides that the repeal or amendment of a provision of the National Law does not affect the previous operation of the provision. Clause 34(1)(b) does not preserve s 195 for the purposes of this proceeding. Nothing had been suffered, done or begun under s 195 at the time of its repeal.
Similarly, clause 34(1)(c) provides that the repeal or amendment of a provision does not affect a right or privilege accrued under the provision; but no right had accrued to either party under s 195 in this matter. Section 195 is a procedural provision which conferred no substantive rights. Certainly no rights were acquired by or accrued to either party under it before its repeal.[4]
[4]Compare Maxwell v Murphy (1957) 96 CLR 261 at 268; Rodway v The Queen (1990) 169 CLR 515 at 518-520; Esber v The Commonwealth (1992) 174 CLR 430 at 440; Attorney General (Qld) v The Australian Industrial Relations Commission (2002) 213 CLR 485 at 502 [40].
While s 195 had conferred a general discretion upon the tribunal to make any order about costs it considered appropriate, upon its repeal costs in the proceeding became governed by Part 6, Division 6 of Queensland Civil and Administrative Tribunal Act 2009, there no longer being provision for costs made under the National Law as an enabling act. The primary position under s 100 of the QCAT Act is that each party to a proceeding must bear the party’s own cost for the proceeding. Section 102(1) confers power upon the tribunal to make an order requiring a party to pay all or a stated part of another party’s costs if the tribunal considers the interests of justice require it to make the order.
In my opinion, it is s 100 and s 102 which govern costs in this proceeding. The Board submissions address those provisions as those relevant to the proceeding. Although the submissions for Dr Pearse were directed towards the exercise for the discretion under s 195 of the National Law (misstated as s 201), in raising matters which he contends would lead the tribunal to consider it appropriate to order the board to pay his costs, he has raised issues relevant also to a consideration, under s 102(2) of the QCAT Act, of whether the tribunal considers the interest of justice require it to make such an order.
Section 193 of the Health Practitioner Registration National Law (Qld) [2009] provides, relevantly:
“A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if—
(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason—
(i) the practitioner has behaved in a way that constitutes professional misconduct;
…
Therefore, in circumstances in which your board reasonably believes that a practitioner has behaved in a way that constitutes professional misconduct, the board is required, as a matter of law, to refer the matter to the tribunal.
Consideration of the party’s submissions.
In the written submissions made on behalf of Dr Pearse reference is made to numerous findings made by the tribunal in its substantive decision.[5] Those findings included that there was an unlikelihood of the events having occurred as alleged by the patient:[6] that her evidence and explanations lacked plausibility;[7] and that her evidence concerning the allegation that Dr Pearse attempted to kiss her nipple was unreliable.[8] The tribunal also found the patient’s reasons for allowing Dr Pearse to conduct a pap smear as deposed by her in her affidavit was demonstrably incorrect by reference to the medical records.[9] The tribunal also observed that she offered a different reason to that to which she had deposed in the course of the hearing.[10] That reason could also be demonstrated to be incorrect from the medical records.[11]
[5]Medical Board of Australia v Pearse [2015] QCAT 42.
[6]Ibid at [22], [23], [27], [30], [37], [39], [43] and [50].
[7]Ibid at [24], [25], [28], [42].
[8]Ibid at [29].
[9]Ibid at [30].
[10]Ibid at [31].
[11]Ibid at [32] and [33].
However, as the reasons make plain,[12] it was all of the evidence concerning the issue of the pap smear which lead to the conclusion that the reason why it was performed was simply because she had requested it, rather than it having been performed for any of the reasons that she had offered. That evidence included her oral testimony before the tribunal, including matters to which she agreed in cross-examination.
[12]Ibid at [34]-[36].
So too conclusions as to the unlikelihood of her evidence being honest and reliable were reached after a consideration of all the patient’s evidence. Furthermore, as submitted on behalf of the Board, the conclusions were reached after also hearing and considering the evidence of Dr Pearse. As the Board also submits, the tribunal was assisted in reaching those conclusions by the evidence of Dr Yassin given in the course of the hearing.[13]
[13]Ibid at [44]-[52].
Whilst it is correct, as submitted for Dr Pearse, that the patient’s reliability and the inherit unlikelihood or improbability of her evidence were identified as issues early in the proceeding, indeed as early as the related proceeding concerning immediate action taken against Dr Pearse,[14] the resolution of those issues required a full consideration of all the evidence, including evidence as deposed to by Dr Pearse in his affidavit and given under cross-examination. That such was necessary featured prominently in the refusal of what was effectively a no case submission made at the close of the Board’s case. The submission was that the tribunal should cease the inquiry and dismiss the complaint.[15]
[14]Pearse v Medical Board of Australia [2013] QCAT 392 [47].
[15]Transcript 1-68 lines 31-36.
The submissions for Dr Pearse point to his solicitors, at an early stage in correspondence dated 28 August 2013 following the tribunals decision on 15 August 2013 to set aside the board’s decision to take immediate action against him, having raised the inconsistency in the patients evidence as to why she proceeded with a pap smear with that contained in the medical records, and again having raised the unreliability and inherent implausibility of her evidence. His solicitors having done so, and the tribunal having ultimately concluded those issues in a manner similar to that raised in the correspondence, is relevant to the issue of costs. However, as already discussed, there were several more considerations which ultimately led to the tribunal’s conclusions on those issues which only emerged in the course of the full hearing. It cannot be said that the correspondence raised and addressed all of those matters.
It is also of considerable relevance, as the Board submits, that s 193 mandated that the board referred the matter to the tribunal if it reasonably believed that Dr Pearse had behaved in a way that constitutes professional misconduct. There was no finding in the substantive proceedings that at the time at referring the matter to the tribunal the Board did not hold such a belief or that any such belief was not, or could not, reasonably be held. I would not now make such a finding either.
Dr Pearse had, for the purpose of the immediate action appeal proceedings, sworn an affidavit setting out his version of events. That had been sworn by him on 13 July 2013, that is a month prior to the referral of the disciplinary matter by the Board to the tribunal. However, the fact that he had done so does not mean that the Board did not, or could not, have the relevant belief at the time of making the referral. The fact that the tribunal, essentially, accepted his version of events does not alter that. The resolution of the allegations made by the patient upon which the referral was based required a full hearing; but that does not mean the Board did not hold, or could not have held, the relevant beliefs.
The requirement under s 193 that the Board refer such matters to the tribunal forms part of the scheme that the National Law intended to achieve the objective of the protection of the public.[16] The fact that it is required to do so is a relevant consideration. So too is the fact that the Board is funded in its operations, including the referral of matters to the tribunal, by the registration fees paid by members of the profession.
[16] Sections 3 and 4 of the National Law.
Submissions for Dr Pearse identify what are said to be a number of opportunities for the Board to have considered that it ought to not persist with the referral. Seven of the eight identified opportunities occurred after the referral to the tribunal was made, and six are said to have arisen in the course of the hearing. It is submitted that:
“In summary, the medical board commenced the proceedings and maintained them despite the fact that any objective analysis clearly pointed to the allegations by the complainant… being inherently implausible. The matter proceeded all the way to full oral hearing on [sic] closing submissions.”[17]
[17]Submissions on behalf of Dr Pearse para 19.
It is further submitted for Dr Pearse that:
“All of the matters could have been ascertained by careful and critical examination of the evidence. There is no evidence that any evaluation of the evidence occurred. Even if an evaluation of the evidence occurred, it was clearly not the careful and considered evaluation of the sought referred to in the tribunals reasons for judgement on the issue of which party should pay the cost of the application for review – see paragraph 8 of that decision where the tribunal said “by contrast the decision to prosecute a disciplinary charge against a practitioner will, in the ordinary course, follow a thorough investigation and with an understanding of the practitioners response to the allegations and the available evidence in support of them.”[18]
[18]Ibid at para 21.
I do not accept those submissions. For the reasons stated already, whether the allegations were inherently implausible was a matter to be determined upon a consideration of all the evidence. The “objective analysis” of the allegations and the “careful and critical examination” and “evaluation of the evidence”, occurred in the course of the proceedings in the tribunal, including the full hearing of all the relevant evidence, and are contained in the tribunals reasons. The fact that after an investigation it is understood that the practitioner’s response to the allegations is complete denial, even with some independent evidence supportive of the practitioner’s position, does not mean that the Board cannot hold the relevant belief requiring it to refer the matter to the tribunal. Nor does it mean that it should at some point desist in those proceedings.
I am not satisfied that the circumstances of this case are such that the interest of justice require the tribunal to make an order that the board pay all or any part of Dr Pearse’s costs.
As such, the position is set out in s 100 of the QCAT Act should be reflected in an order that there be no order as to costs.
For completeness, I would indicate that even if the former s 195 of the National Law governed costs in these proceedings, I would not have been at the view that an order requiring the Board to pay Dr Pearse’s costs was appropriate.
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