Medical Board of Australia v TXA (No 4)

The Medical Board of Australia has applied for a cost order against a medical practitioner, TXA, following a disciplinary referral. The Board alleged that TXA had engaged in professional misconduct or unprofessional conduct by (a) seeking to enter into a sexual relationship with the wife of a patient, (b) accepting as a patient a person with whom he had a personal relationship, and (c) misusing personal information obtained as part of this treating relationship to seek the sexual relationship with the patient’s wife. The Tribunal found that TXA had engaged in unprofessional conduct by accepting as a patient a person with whom he had a personal relationship, but that otherwise the Board had no case to answer. TXA has applied for an order that the Board pay his costs of and incidental to the hearing, on the basis that such an order was required in the interests of justice under s 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”). The Board resisted the application, and submitted that no order as to costs should be made. The Tribunal decided that the interests of justice required an order for costs, and ordered that the Board pay TXA’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. In reaching this conclusion, the Tribunal found that the Board’s conduct in making allegations against TXA for which it had no evidence was unreasonable, and that TXA had been disadvantaged by the Board’s conduct, which had unnecessarily put him to the expense of defending himself against allegations which would have derailed his professional career. In the circumstances, it was unjust for TXA to bear the costs of the hearing, and an order for costs was required in the interests of justice. The Tribunal also found that the Board had unnecessarily loaded up the hearing brief with duplication of documents. The Tribunal did not find that it would be unjust for TXA not to contribute to the Board’s costs, as the Board had not succeeded in its application.