Moeinalsadat v Medical Board of Australia

[2014] QCAT 544

CITATION: Moeinalsadat v Medical Board of Australia [2014] QCAT 544

PARTIES:	Dr Seyed Pouria Moeinalsadat (Applicant)
v
Medical Board of Australia (Respondent)

APPLICATION NUMBER: OCR016-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON: 31 October 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Dr Moeinalsadat is to pay the costs of the Medical Board of Australia of and incidental to the proceedings as assessed on a standard basis on the District Court scale.

CATCHWORDS:

PROCEDURE – COSTS – JURISDICTION – OTHER CASES – where the applicant brought an application to review the decision of the respondent – where the applicant withdrew the application – where the matter had a limited history – whether the applicant should pay the respondent’s costs

Health Practitioner Regulation National Law (Queensland), s 201

Attuwadage v Medical Board of Australia (No 4) [2011] QCAT 626
Brown v Nursing & Midwifery Board of Australia [2013] QCAT 49
Laming v Medical Board of Australia [2013] QCAT 304
Li v Medical Board of Australia (No 2) [2013] QCAT 594
Mehrabad v Medical Board of Australia (Unreported, Queensland Civil and Administrative Tribunal, Deputy President Kingham DCJ, 11 May 2012)

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 (Qld).

REASONS FOR DECISION

1. On 21 January 2013 Dr Seyed Pouria Moeinalsadat filed an application to review a decision of the Medical Board of Australia to refuse his application for limited registration.

2. On 26 September 2013 the Tribunal directed that Dr Moeinalsadat had leave to withdraw his application to review a decision. A hearing listed for 8 October 2013 was vacated. The Tribunal, at the request of the Board, directed that parties make submissions as to costs.

3. The Board has sought its costs of the proceedings. Dr Moeinalsadat seeks an order that each party bear their own costs.

4. The review of the decision of the Board was brought under s 199(1)(a) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’). Pursuant to s 201 of the National Law, the Tribunal ‘may make any order about costs it considers appropriate for the proceedings’. This section provides the Tribunal with a broad discretion to award costs.[1]

   [1]Attudawage v Medical Board of Australia (No 4) [2011] QCAT 626 (‘Attudawage’) at [3]; Li v Medical Board of Australia (No 2) [2013] QCAT 594 at [24].

Background

1. This matter has a limited history. It includes, in addition to the originating application: an application for an extension of time; a directions hearing; a compulsory conference; and an application to withdraw proceedings. The Board has, in making its case, filed: submissions on the application for an extension of time; Statement of Reasons; and submissions as to costs.

2. While the hearing was vacated at a late stage, counsel had not been engaged by the Board. This has resulted in the Board’s costs being minimal. Dr Moeinalsadat was unrepresented in the proceedings and therefore has no costs.

Submissions as to Costs

1. Dr Moeinalsadat submitted that he is in financial difficulty and had been under the mistaken belief that he could not be subjected to any further costs in this proceeding. He also submits that, because of his financial difficulty, he would not be able to pay the Board’s costs.

2. The Board has drawn four comparative cases to the Tribunal’s attention.[2] The Board submits that these cases set out some of the relevant factors in determining costs in review proceedings. The factors consistently noted in those cases include that: the proceedings were not necessary or lacked utility;[3] the Board had taken steps to minimise costs to the applicant and the Tribunal;[4] the Board had conducted itself in a way that fulfilled its statutory function;[5] and that the Board is funded largely by its members.[6]

   [2]The cases were: Attudawage; Brown v Nursing & Midwifery Board of Australia [2013] QCAT 49 (‘Brown’); Laming v Medical Board of Australia [2013] QCAT 304 (‘Laming’); and Mehrabad v Medical Board of Australia (Unreported, Queensland Civil and Administrative Tribunal, Deputy President Kingham DCJ, 11 May 2012) (‘Mehrabad’).

   [3]Attudawage at [4]; Laming at [1]; Mehrabad at [17], [19], [23].

   [4]Attudawage at [5]; Mehrabad at [22], [28].

   [5]Attudawage at [5], [6]; Mehrabad at [27].

   [6]Attudawage at [5]; Brown at [8]; Laming at [5]; Mehrabad at [28].

3. The Board concedes that it is impossible for the Tribunal to determine whether the proceedings were not necessary or lacked utility as no material other then the Board’s Statement of Reasons was put before the Tribunal.

4. The Board submits it acted reasonably at all times in executing its statutory functions. During the proceedings the Board had not engaged counsel, nor did it oppose the application for an extension of time.

5. The costs of the Board are still borne by its members. This is a factor the Board submits ought to be given considerable weight.

6. The only factor in this matter which may weigh against the Board receiving its costs is the financial hardship faced by Dr Moeinalsadat. The Board notes that in Brown the applicant was also suffering financial difficulties, but this did not dissuade the Tribunal from making a costs order against the applicant.

7. Notwithstanding Dr Moeinalsadat’s financial difficulties, he having withdrawn his review application, it is appropriate that he pay the Board’s costs of and incidental to the proceedings on a standard basis on the District Court scale. The Board has had to consume some of its resources, provided by its members, responding to an application which was ultimately withdrawn. In such cases, it will ordinarily be appropriate to order the applicant to pay the Board’s costs.