Medical Board of Australia v TXA (No 4)

[2023] QCAT 360

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Australia v TXA (No 4) [2023] QCAT 360

PARTIES:

MEDICAL BOARD OF AUSTRALIA

(applicant)

v

TXA

(respondent)

APPLICATION NO/S:

OCR346-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

3 October 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC, assisted by:
Professor J Searle,
Dr G Kelly,
Ms C Ashcroft

ORDERS:

The applicant pay the respondent’s costs of and incidental to the hearing on 20 March 2023, including the costs associated with the hearing book, and the costs of the argument about costs, to be assessed on the standard basis on the scale appropriate to a matter in the District Court under the Uniform Civil Procedure Rules, by an approved assessor appointed by the Registrar of the Tribunal.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – disciplinary referral – applicant had only limited success – factual issues largely agreed – further factual matters alleged by the applicant not supported by evidence – whether the interests of justice required a contribution to the respondent’s costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100, s 102

CH v Queensland Police Service [2021] QCATA 137
Cowen v Queensland Building and Construction Commission [2021] QCATA 103
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
Medical Board of Australia v Wong [2017] QCA 42
Owen v Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General (No 2) [2023] QCAT 207
Pound v Queensland Building and Construction Commission [2023] QCAT 298
Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107

APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Applicant:	C Wilson, instructed by King & Wood Mallesons, solicitors
Respondent:	S Robb, instructed by Meridian Lawyers

REASONS FOR DECISION

1. Following the conclusion of a disciplinary referral by the applicant, the respondent has sought an order that his costs of the proceeding be paid by the applicant, on the basis that such an order was required in the interests of justice, under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 102(1). Such an order is resisted by the applicant, and the applicant submitted that no order as to costs should be made.

Background

1. The respondent is a medical practitioner. On 15 March 2021, the applicant suspended his registration as a medical practitioner pursuant to the Health Practitioner Regulation National Law (Qld) (“the National Law”) s 156. That suspension remained in place until it was set aside on review by the Tribunal on 24 August 2021.[1] The Tribunal was not satisfied that the available material provided a sufficient basis for the formation of a reasonable belief that the applicant presented a serious risk to persons: [35]. In those circumstances, no action was appropriate under the National Law s 156.

   [1]TXA v Medical Board of Australia [2021] QCAT 279.

2. At the time of that hearing, the applicant was continuing to investigate the conduct of the respondent.  On 24 December 2021 it referred the matter to the Tribunal.  On 2 February 2023 an application for a non-publication order came before the Tribunal, where the contentious issue was whether this would extend to the identity of the respondent.  The Tribunal made an order which did extend to the identity of the respondent.[2] 

   [2]Medical Board of Australia v TXA (No 1) [2023] QCAT 28.

3. The disciplinary referral came on for hearing on 20 March 2023.  The applicant alleged that the respondent engaged in professional misconduct, or in unprofessional conduct, in three ways:

   (a)by seeking to enter into a sexual relationship with the wife of a patient;

   (b)by accepting as a patient a person with whom he had a personal relationship; and

   (c)by misusing personal information obtained as part of this treating relationship to seek the sexual relationship with the patient’s wife. 

4. Part (c) depended on the Tribunal’s finding that the knowledge of the patient’s erectile dysfunction was in some way involved in motivating the action of the respondent.  As I explained in the reasons, at the time of the hearing the applicant had no evidence to support this proposition.  Evidence of related factual matters, such as that concerning the current state of the patient’s condition following treatment received, provided no support for it.  There was no evidence from an obvious witness, the patient himself.  The proposition was denied by the respondent, and in those circumstances the respondent had no case to answer on this point.  As to (a), the conduct was not inconsistent with the Code of Conduct for Doctors in Australia, or with the Guidelines dealing with sexual boundaries, both issued by the applicant, because the respondent was not taking advantage of the professional relationship in seeking the sexual relationship.  To a large extent, the applicant’s argument on this point depended on the acceptance of part (c) of the allegation, which was not made out.  As explained in the reasons, it was clear enough that the inspiration for the respondent’s attempt was the social relationship between them and the extended absence overseas of the patient.  Again, the respondent had no case to answer. 

5. On 31 March 2023 the Tribunal decided that the respondent’s conduct, in accepting as a patient a person with whom he had a prior personal relationship, amounted to unprofessional conduct, but that otherwise the respondent had no case to answer, and no further action was to be taken in relation to the matter in the referral.[3]  Directions were given for further submissions, in writing, as to sanction.  They were received; the applicant sought that the respondent be reprimanded by the Tribunal, while the respondent sought no sanction be imposed, bearing in mind the period of suspension that had already occurred.  On 26 July 2023 the Tribunal censured the respondent for the unprofessional conduct, and gave directions as to any application for costs.[4] 

   [3]Medical Board of Australia v TXA (No 2) [2023] QCAT 115.

   [4]Medical Board of Australia v TXA (No 3) [2023] QCAT 261.

Approach to costs orders

1. The relevant provisions of the QCAT Act are s 100 and s 102. The position is that no order for costs is to be made, unless, relevantly the tribunal considers, in accordance with s 102, that the interests of justice require it to do so.[5] It follows that it is necessary for the party seeking an order for costs to show that there is a sufficient basis under s 102 to depart from the position that there be no order as to costs. It is relevant that this is a proceeding in which the parties have a right to be legally represented.[6] 

   [5]Marzini v Health Ombudsman (No 4) [2020] QCAT 365; Cowen v Queensland Building and Construction Commission [2021] QCATA 103; CH v Queensland Police Service [2021] QCATA 137; Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107.

   [6]The QCAT Act s 43(2)(b)(ii). 

Respondent’s submissions

1. The respondent submitted that he had been put to the expense, as well as the inconvenience and distress, of having to defend himself against allegations which would have derailed his professional career, in circumstances where the applicant had no evidence at all to support the most serious allegation it made against the respondent, which also was relied on heavily in relation to another of the allegations made.  All the facts were agreed except for three matters, and of those three the applicant had no evidence to support its case on two of them, and in view of that the third became irrelevant.  In so far as there were factual matters in contention at the hearing, the applicant failed to make out any of them. 

2. The allegation where a finding of unprofessional conduct was made was one which was not in contention.  The applicant was not obliged to refer the matter to the Tribunal, and did not until after the immediate action suspension was set aside.  The reasons for that decision exposed the weakness of the applicant’s case, and the applicant thereafter had no reasonable basis to anticipate that the Tribunal would suspend or cancel the registration of the respondent.  The applicant should also have been on notice that the conduct which could be proven would not amount to professional misconduct.  If the applicant had taken a reasonable approach to the referral, the hearing on the first day could have been avoided, and the question of sanction resolved on written submissions, as it was. 

Applicant’s submissions

1. The applicant submitted that the usual outcome in such matters, that there be no order for costs, should follow here.  The respondent had not been wholly successful, and had conceded one aspect of the allegation, that there was a boundary violation by the respondent, which the Tribunal did not accept.  The applicant relied on the findings in the review proceeding, that it was likely that the respondent was influenced by his knowledge of the patient’s condition, even if only subconsciously, and that it was a disgraceful breach of trust.  Once the applicant had formed a reasonable belief that the respondent had engaged in unprofessional conduct or professional misconduct, it was reasonable to refer the matter to the Tribunal, in the exercise of its function to make such referrals.  

2. The applicant complained that, in view of the concession made under cross-examination during the review proceeding, it was reasonable for him to be cross-examined further at the hearing, and it could not be reasonably anticipated that this would not be allowed by the Tribunal.  The submissions by the respondent, as to the applicant being on notice about its case after the review proceeding, were rejected as unreasonable and based on hindsight.  It was also submitted that, although the hearing brief was unnecessarily extensive and included repetition of copies of documents, the content had been the subject of agreement between the parties before it was compiled, and there would not have been any significant additional costs incurred by the respondent as a result of the state of the hearing brief. 

Consideration

1. The parties placed some reliance on the decision of the Tribunal in the review application.[7] There are two important differences between that matter and the present. That was a review, where the Tribunal had to arrive at the correct or preferable decision,[8] and there was no onus in the strict sense, and it was reviewing a decision as to whether there was a reasonable belief that the (present) respondent posed a serious risk to persons.[9]  That is a different situation from the hearing of a disciplinary referral, where the issue is whether the relevant conduct has been proved, and the applicant does carry an onus to prove the allegations made.[10] 

   [7]TXA v Medical Board of Australia (supra). 

   [8]Ibid, [3]. 

   [9]Ibid, [5] – [9].

   [10]Council of the Queensland Law Society Inc v Roche [2003] QCA 469 at [9]; Nursing and Midwifery Board of Australia and Roe [2018] WASAT 92 at [15].

2. In the review proceeding it was relevant to consider possibilities, as part of the process of assessment of the relevant risks.  It was relevant to consider the possibility that the respondent had been influenced by his knowledge of the medical condition of the patient in taking the action he did, although the Tribunal acknowledged the possibility that that influence was only subconscious.  The applicant submitted that in that matter the Tribunal had an unfavourably view of the respondent as a witness, and that this “called into question” his denial that he was influenced by knowledge of the medical condition.  That may have been a reasonable approach when considering the question of the risk to persons, which looks to the future, but it is not an approach appropriate in the present disciplinary proceeding.  It is a logical fallacy that disbelief of a denial is evidence of the existence of what was denied. 

3. As well, at the review proceeding the present applicant had submitted in writing that whether the respondent’s action were motivated by confidential medical information was not one of the issues the Tribunal was being asked to resolve.[11]  Despite this, there was extensive cross-examination about the issue, and no admission that it was a motivating factor was obtained.  Although the medical records of the patient were used in that cross-examination, no attention was paid to the material in them which contained anything about the success of the treatment received, possibly because of that concession.  No reference was made to that material in the reasons. 

   [11]Transcript of hearing p 25, Hearing brief p 594.

4. Overall, my impression is that the applicant did not fare well in the review proceeding, and it should have given the applicant the opportunity to take a realistic look at the material it had available.  Whatever may have been the position for the purposes of the review, when it was a matter of proving things, it should have been apparent that the applicant at that stage had no evidence to support the allegation that the respondent used his knowledge of the patient’s medical condition to proposition the patient’s wife, and no evidence that he told her that when he came to see her his wife would be with him. 

5. The applicant has powers to investigate matters where a complaint has been made against a practitioner, and as well matters requiring further investigation can be referred to the Health Ombudsman.  By the time a disciplinary referral gets to a hearing, the time for investigation has passed, particularly if the practitioner has already been questioned once.  At the hearing the Tribunal was told that there were only three factual issues, everything else having been covered by an agreed statement of facts.  The applicant had the benefit of legal advice, and it should have been obvious well before the hearing that it had no evidence to support its position on two of those issues, and that without one of them the third became irrelevant. 

6. Apart from being wildly optimistic, given that the respondent had already been cross-examined once, the approach the applicant sought to adopt at the hearing involved a reversal of the onus.  The applicant behaved as though there was an onus on the respondent to satisfy the Tribunal that the relevant allegations were not correct.  That is not the position in such a proceeding.  The applicant’s approach was misconceived. 

7. Accordingly it should have been apparent well before the hearing that the only allegation the applicant had evidence to prove was that referred to in [4](b) above.  That allegation was not contested by the respondent, so if the applicant had adopted a realistic approach to its case, the proceeding could have been confined to the characterisation of that conduct, and the question of sanction.  Had that approach been adopted the first step in this proceeding, and the most expensive step, could have been avoided completely. 

8. I should say something as well about the decision in Medical Board of Australia v Wong [2017] QCA 42, where an order for costs against the Board by the Tribunal was set aside on appeal. McMurdo JA, with whom the other members of the Court agreed, said that the Tribunal had failed to take into account the provisions of the National Law s 193, which as it then stood, required the Board to refer a matter to the Tribunal if the Board reasonably believed that the practitioner had behaved in a way that constituted professional misconduct. A finding that the attitude of the Board, in a response to a proposal from the practitioner’s lawyers, was perfunctory, should not have been made without considering the reasonableness of the belief formed by the Board, which had not occurred. Finally, no finding had been made that any aspect of the Board’s approach to the question of what conditions were appropriate was unreasonable.

9. The order made by the Tribunal in that case was for costs on an indemnity basis, said in the Tribunal to depend on whether there was unreasonable conduct by the relevant party. In that context, it was necessary to consider whether there was any justification in finding that the conduct was unreasonable, and in the light of the then statutory context, the reasonableness of the conduct of the Board was otherwise relevant. Hence the terms used by his Honour at [35] of the reasons. That this was not a statement of the test under the QCAT Act s 102(1) is shown by the fact that, when his Honour came to consider a question of costs in a later appeal from the Tribunal, Powell v Queensland University of Technology [2018] 2 Qd R 234, at [162] – [165], no mention was made of “unreasonableness”.

10. Apart from that, the National Law has been amended between the time relevant in Wong and the time of the referral to the Tribunal in this matter, and s 193 is now in different terms. It was not suggested for the applicant that it was bound to refer this matter to the Tribunal, merely that it was entitled to do so. It may well have been appropriate to refer the allegation in [4](b) to the Tribunal, but I do consider it was unreasonable to refer an allegation, particularly a serious one of misuse of the professional relationship for personal advantage, when the applicant had no evidence to support it.

11. Another matter I should mention is that there have been decisions to the effect that costs should not be awarded against a regulator, particularly in disciplinary proceedings, because to do so would inhibit the regulator in taking action, presumably in marginal cases.  This approach was discussed, and a number of authorities discussed or identified, recently in Pound v Queensland Building and Construction Commission [2023] QCAT 298, at [45] – [50]. To some extent these decisions have been influenced by an approach to s 102 involving an extreme reluctance to make an order for costs, as expressed in the early Ralacom case,[12]  although in Pound the approach developed was that access to justice considerations required that regulators be protected from orders for costs. 

    [12]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, which as I have explained in the decisions cited at [7] above, I regard as involving an error of law, in attempting to place a constraint on the discretion conferred by s 102(1).

12. I have difficulty with the idea that access to justice is enhanced by encouraging regulators to put forward doubtful, let alone bad cases before the Tribunal, secure in the knowledge that if they lose they will almost certainly not have to pay the costs of the successful respondent.  That does not obviously have anything to do with access to justice.  It may be in the public interest not to act in a way which will lead to excessive regulatory timidity, but protecting regulators from costs orders except in extreme cases strikes me as seeking to avoid the Scylla of regulatory timidity by steering straight for the Charybdis of regulatory overreach. 

13. In most conflicts between a regulator and one of the regulated, the balance of power lies firmly with the regulator.  The main weapon the regulated have is the existence of an independent tribunal, before whom allegations must be proved, or before whom decisions can be subjected to merits review.  It seems to me that the regulated are likely to be deterred from arguing with a regulator in such a situation if advised that, even if they win, they will almost certainly have to pay their own legal costs anyway.[13]  That does not assist access to justice, it detracts from it. 

    [13]Tamawood Pty Ltd v Paans [2005] 2 Qd R 101 at [32].

1. If a regulator brings a disciplinary proceeding which fails, and the other party has reasonably incurred legal costs in resisting the proceeding, the question becomes whether it is in the interests of justice for the default position, of no order as to costs, to be departed from. Section 102(3) sets out some relevant considerations in making that assessment, but recognises that other matters may in a particular case be relevant. The position is much the same if a decision of a regulator is challenged in a proceeding by way of review.

2. In Owen v Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General (No 2) [2023] QCAT 207, a claim against an agent for reimbursement of a payment had been set aside, and the agent sought an order for costs, on the standard basis. Following a consideration of relevant circumstances, the Tribunal awarded costs, after the application of the practical test, whether it would be unjust to the successful party not also to award costs: [21]. The Tribunal used the term “plainly unjust”, but I consider that the qualifier “plainly” was not expressed as part of the test, but as a matter of emphasis in the circumstances of that case. In any case, I consider it a good practical test for whether an order for costs is required in the interests of justice, if it could be said that it would be unjust not to make an order for costs in the particular circumstances of the matter.

3. Turning to the matters listed in the QCAT Act s 102(3), the applicant disadvantaged the respondent in the proceeding unnecessarily by making an allegation against him when it had no evidence to support the allegation, just speculation, and the allegation was of more serious conduct than what could be proved, and was conceded; and by loading up the hearing brief with unnecessary duplication of documents.[14]  I have already referred to the nature and complexity of the dispute.  As to the relative strength of the cases, the applicant’s case on such factual matters as were in dispute was not merely weak, it was non-existent, being based entirely on speculation.  It ought to have been obvious to the applicant that these were matters that should not have been pursued.  There is no evidence of the financial positions of the parties, but I expect that, for a general practitioner working mainly among refugees, the respondent’s income would have been relatively modest for a practitioner, and the legal costs would have been a significant burden to him.[15]  Finally, I regard this matter as an example of regulatory overreach which should not be encouraged.  Otherwise, any relevant matters have been referred to earlier. 

   [14]The applicant submitted that the content was agreed, but I assume that this agreement did not extend to the duplication of documents. 

   [15]It is possible that they were paid by an insurer, but I do not think there is any evidence of that. 

4. Had this matter been approached reasonably by the applicant it would have been confined to the allegation in [4](b), there would have been no contested facts and no need for a hearing, and the issues of characterisation and sanction could have been dealt with on the papers, if they were not also agreed; it should not have been difficult to agree them as well.  That this did not occur was the result of the approach of the applicant, and in view of the circumstances I have referred to I consider that the interests of justice require that the applicant contribute to the additional costs to which the respondent was put as a result of its inappropriate approach. 

5. The decision of the Tribunal is that the applicant pay the respondent’s costs of and incidental to the hearing on 20 March 2023, including the costs associated with the hearing book, and the costs of the argument about costs, to be assessed on the standard basis on the scale appropriate to a matter in the District Court under the Uniform Civil Procedure Rules, by an approved assessor appointed by the Registrar of the Tribunal.