Munro, Jenny Applicant v Physiotherapy Board of Australia

[2024] QCAT 247

[2024] QCAT 247

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REID, Judicial Member

Assisted by:

MR COOK

MS HARROP

MS JONES

No. OCR 197 of 2023

MUNRO, Jenny

Applicant

v 

PHYSIOTHERAPY BOARD OF AUSTRALIA

Respondent

BRISBANE

THURSDAY, 15 FEBRUARY 2024

REASONS FOR DECISION

1. JUDICIAL MEMBER: On 19 July 2023, the Australian Health Practitioners Regulation Agency (AHPRA) on behalf of the Physiotherapy Board (Board) suspended the Applicant’s (Ms Munro) registration as a physiotherapist. Ms Munro applied to review that decision.

2. The matter arose because Ms Munro, a physiotherapist of over 40 years’ experience, had engaged in inappropriate conduct over a significant period with two male patients, who were married to one another.

3. The matter was heard by me, and I made orders allowing the Applicant to return to practice, subject to conditions being imposed on her registration. In essence, those conditions:

   (a)required her to practice only in places of practice approved by the Board;

   (b)permitted her to practise during standard business hours and when another physiotherapist was on the site;

   (c)prohibited her from engaging in non-clinical communications with patients;

   (d)prohibited her from saving patients’ personal contact details to her phone or from communicating with patients using social media;

   (e)required her to regularly certify to the Board her compliance with such conditions;

   (f)required her to undertake treatment with a psychologist and advise AHPRA of the psychologist’s details; and

   (g)agree that AHPRA was entitled to seek reports from such psychologist and any employer of the Applicant.

4. The Applicant’s inappropriate conduct, the subject of the hearing, related to what might be seen as her persistent social conduct with the two patients, which could be seen by them as harassing and unnecessarily persistent. It is fair to say however that some of the more serious assertions raised against the Applicant were not established on the evidence (for example, there was no evidence that her interactions with one of the patients caused him to attempt suicide, which was one of the allegations).

5. There was no disagreement as to the applicable law with respect to costs orders in this jurisdiction which is set out in paragraphs 2 and 3 of the Applicant’s written submissions on costs filed on 15 December 2023. 

6. It is said in the parties’ submissions that there was some disagreement between judgments of his Honour, President Wilson, in Ralacom Pty Ltd v Body Corporate for Paradise Island (Number 2)[1] and decisions of his Honour, Judicial Member McGill, to which I shall shortly refer.

   [1] [2010] QCAT 412.

7. President Wilson said that circumstances must:

   Point so compellingly to a costs award that they overcome the strong counter-indication against cost orders in s 100.[2]

   [2] Ibid [29].

8. His Honour Judge McGill, in Marzzini v Health Ombudsman (No 4)[3] at paragraphs 6 to 35 and in Cowen v QBCC[4] at paragraphs 25 to 28, said that the test is whether the interests of justice require the making of an order and should not readily be made because of the use of the word “require” in s 102(1).[5]

   [3] [2020] QCAT 365.

   [4] [2021] QCATA 103.

   [5]           Queensland Civil and Administrative Tribunal Act 2009 s 102(1) (‘QCAT Act’).

9. Insofar as there are real differences between these two tests, I prefer the approach of Judicial Member McGill reflecting, as it does, the words of the legislation.

10. But it should be understood that the distinction between the two approaches is unlikely, in the vast majority of cases, to have any significance. Neither Member departs from the need for there to be sufficient circumstances to overcome the default position. It will be an unusual case indeed where the different ways in which the test is expressed by the two judicial officers make any material difference, in my opinion.

11. What then, the Applicant points to, which is said to justify a departure from the default position that there be no order as to costs, I think, can be summarised as follows:

    (a)the application was necessary for the Applicant to regain her right to practice, and she was successful in achieving that end;

    (b)both parties were legally represented;

    (c)the Applicant before filing the application requested the respondent to reconsider its decision and in submissions proposed that conditions be imposed on her registration;

    (d)the matter was said not to be complex, and the imposition of conditions was, and should have been seen to be, appropriate;

    (e)ultimately, the Respondent capitulated and agreed to the imposition of conditions;

    (f)if the Respondent had properly considered the matter, the cost of the hearing could have avoided; and

    (g)suspension of the Applicant’s registration, and for six months, went well beyond what was required.

12. I do not accept that the Applicant should have her costs of the proceedings paid. Her conduct as a physiotherapist fell a very long way short of what might be expected. In her submissions of 14 July 2023, in response to the Respondent’s action, she had submitted:

    The allegations made are baseless and without foundation. 

    They were not.

13. In submissions in reply to the Tribunal she submitted the decision of the Board should be set aside and did not suggest the imposition of conditions. The imposition of conditions was, however, suggested only in submissions of 20 October 2023 and, although rejected by the Board, were significantly different to those ultimately imposed in the consent order before me relating to peer supervision and professional training and education.

14. The need for the Respondent to have brought the application and the fact both parties were legally represented is inconsequential in the circumstances of this matter, in my opinion.

15. I also do not accept that the low level of complexity supports my making an order for costs.  While not legally complex, there were real factual disputes some of which were resolved at least in part only after cross-examination of the Applicant before me.

16. In concluding as I have, I am also mindful of observations of Judicial Member Robertson in Porteous v Pharmacy Board of Australia (No 2)[6] that the fact that the outcome was not what was sought should not have itself punished the Board with an order for costs.

    [6] [2021] QCAT 390.

17. I should also say that I do not think it can be said that the Respondent capitulated by agreeing to the orders that were made. Having read the material prior to the hearing I indicated, perhaps quite strongly, my preliminary views about the matter. The Board was allowed to cross-examine the Applicant. I again indicated at the conclusion of that what my views were.

18. As a result the parties negotiated and ultimately they agreed upon orders that were made reflecting my views to some extent.  But the orders were not what either party had initially sought.  It was not a capitulation but a sensible response in the face of a strong indication by me to both parties.

19. In my view both parties could have, prior to the hearing, given thought to the resolution of the matter which might have obviated the need for a hearing. But I do not think that this was a one-sided consideration. Neither party got entirely what they had sought.

20. In the circumstances I conclude that, in this case, there was no reason to depart from the position set out in s 100 of the QCAT Act. I do not consider that the interests of justice require the making of an order for costs. The application for costs is dismissed.

Orders

1.   The application for costs is dismissed.