Medical Board of Queensland v Broadbent (No.4)

[2010] QCAT 507

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Medical Board of Queensland v Broadbent (No.4) [2010] QCAT 507

PARTIES:

Medical Board of Queensland
 (Applicant)

v

Michael Russell Mark Broadbent
 (Registrant)

FILE NO/S:

2962 of 2007, 976 of 2008 and 1189 of 2008

PROCEEDING:

Occupational regulation matters/Disciplinary Hearing

DELIVERED ON:

22 October 2010

DELIVERED AT:

Southport

HEARING DATE:

2 September 2010

JUDGE:

Judge C.F. Wall Q.C. assisted by Dr P Richardson, Dr G Powell and Ms G Bolland

ORDER:

That the Registrant pay 70% of the Applicant'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.

CATCHWORDS:

HEALTH PRACTITIONERS (PROFESSIONAL STANDARDS) ACT – DISCIPLINARY PROCEEDINGS – Unsatisfactory professional conduct – costs – apportionment to reflect applicant’s partial success.

LEGISLATION:

Health Practitioners (Professional Standards) Act 1999

COUNSEL:

Applicant:     Mrs K McMillan SC and  Mrs J Farr

Registrant:    Mr G. Diehm SC and Mr P Hackett

SOLICITORS:

Applicant:      Moray and Agnew

Registrant:     O'Keefe Mahoney Bennett

1. The Medical Board of Queensland (MBQ) has applied for an order that Dr Broadbent pay its costs of the proceedings on the standard basis but not including its investigation costs.  Such an order is opposed by Dr Broadbent.  Notwithstanding that MBQ did not succeed on a number of its allegations, Dr Broadbent does not seek an order that any of his costs be paid by MBQ. 

1. If MBQ is entitled to an order in its favour, Dr Broadbent submits that it should not include all of the costs of MBQ.  In these circumstances both parties submitted that any apportionment of costs should be by percentage rather than issues and I think that is the preferable and less costly course to adopt.

1. Dr Broadbent contends that no order for costs should be made because of the submissions made in support of the application to stay or discontinue the proceedings and the undertaking then offered by Dr Broadbent (see Medical Board of Queensland v Broadbent [2009] QHPT 13), discussions between the parties immediately following that ruling and the fact (emphasised in that ruling) of the public interest in the proceedings outweighing issues relating to Dr Broadbent's personal responsibility for his conduct.  None of these matters are, in my view, sufficient to deprive MBQ of an order for costs in its favour.  On 7 September 2009 Dr Broadbent’s undertaking was offered expressly without any admission of fault.  The undertaking provided on 2 September 2010 was predicated on an acceptance of the findings made by this Tribunal on 10 June 2010 (see Medical Board of Queensland v Broadbent (No.3) [2010] QCAT 488).

1. Immediately after the ruling on 7 September 2009, there were offers and counter-offers made in correspondence between the parties. These did not resolve the matter and, when analysed, the offers made by Dr Broadbent and rejected by MBQ compared with the Tribunal’s decision of 10 June 2010, are not such as should result in MBQ being deprived of a costs order in its favour. To an extent it could be said that MBQ’s offer of 3 September 2009 including as it did an order finalising other matters still pending against Dr Broadbent, was not in hindsight an unreasonable one. So far as concerns Dr Broadbent’s submissions in relation to his offer of 10 September 2009, I accept what Mrs McMillan says in paragraphs 13 and 14 of her submissions, exhibit 78. Her submissions are more in line with the findings of 10 June 2010 ([2010] QCAT 280) than are the submissions of Dr Broadbent. Further, an acceptance by Dr Broadbent that his conduct was “inappropriate” was, I agree, quite different from the conclusion reached that Dr Broadbent behaved in a way that constitutes unsatisfactory professional conduct.

1. The public interest argument of Dr Broadbent, when analysed, goes no further than the public having an interest in proceedings being heard in public.  The public clearly have an interest in unsatisfactory professional conduct by medical practitioners being exposed.  That involves an assessment of the conduct of the medical practitioner and not an assessment of any public interest issues.  In this case MBQ did not set out to establish public interest matters.  The proceedings were not brought directly to uphold the public interest in seeing that medical practitioners do not behave in a way that constitutes unsatisfactory professional conduct.  There was no public interest in the proceedings beyond having the particular charges against Dr Broadbent aired and heard in public proceedings.  The proceedings did not raise any novel issue of general importance. 

1. I am also influenced by the opinions expressed by the experts in the joint reports exhibits 2 and 3 and the refusal of Dr Broadbent to accept the opinions of the experts when critical of him.  In fact Dr Broadbent contested most, if not all of the allegations against him.  Dr Broadbent knew of the experts opinions before 7 September 2009 and, notwithstanding that Dr Cohen sometimes departed from his previously expressed opinions, the conclusions reached by the Tribunal in relation to Dr Broadbent’s behaviour broadly approximated the opinions of the experts.

1. Both parties submitted in effect, that the determination of the extent of costs to which MBQ is entitled is a matter of impression based on issues on which MBQ succeeded or failed and a broad based estimate of the time taken on those issues.  I agree.           

1. Mrs McMillan conceded that MBQ was more successful in relation to the Pearce allegations than the MacLeod allegations and she submitted that the MacLeod issues involved about three quarters of the hearing time and the Pearce issues about one quarter.  I think that this is a fair assessment of the result and the hearing.

1. A purely mathematical approach based on the number of issues or allegations won and lost is not fair because some took longer than others.  Likewise an assessment based on the number of pages or the time taken in the judgment dealing with issues does not necessarily reflect the time taken up by evidence on those issues.

1. A percentage assessment based on the importance of issues is a little artificial because that wasn’t the basis of the decision and no detailed submissions have been made on that basis notwithstanding that Mrs McMillan submitted that MBQ had succeeded on the “big ticket items”.  Often the “little ticket items” take more time than the big ticket ones.

1. Generally I consider that MBQ succeeded to a greater extent than did Dr Broadbent.

1. Having regard to these various matters I think that MBQ is entitled to 70% of its costs of the proceedings.  I have arrived at this assessment on the basis that MBQ is entitled to two thirds of its costs in relation to the MacLeod allegations and four fifths of its costs in relation to the Pearce allegations.

1. The mathematical calculations leading to this assessment are as follows:

MacLeod:         75%
  ⅔  =         50%

Pearce:              25%
  ⁴/₅  =         20%

Total  70%

1. I order that the Registrant, Dr Broadbent, pay 70% of MBQ’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.