Nobleta v Medical Board of Australia
[2013] QCAT 730
•6 December 2013
| CITATION: | Nobleta v Medical Board of Australia [2013] QCAT 730 |
| PARTIES: | Dr Ma. Donna Joy Nobleta (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR246-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren, SC Deputy President |
| DELIVERED ON: | 6 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | IT IS THE DECISION OF THE TRIBUNAL THAT: 1. The application for directions is refused. THE TRIBUNAL DIRECTS THAT: 1. The matter is listed for a directions hearing at 11:30 am on 13 December 2013. |
| CATCHWORDS: | PRACTICE AND PROCEDURE – DIRECTIONS – where the parties filed an application for directions – where the parties sought and order changing the date to which a stay operated – where the parties sought an order that the hearing date be vacated – where no documents filed in support – whether the Tribunal should make an order in the terms sought Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 22(3), 22(4), 62(6) |
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 (QCAT Act).
REASONS FOR DECISION
On 18 November 2013 the Tribunal received a letter dated 8 November 2013 from the solicitors for the respondent Board which purported to enclose a ‘consent order as agreed between the parties’. The letter invited the Tribunal to contact the writer if there were any queries.
The purported consent order was in the following terms:
1.The Tribunal orders per Directions dated 25 March 2013 are vacated.
2.The stay of the operation of the decision of the Medical Board of Australia of 23 July 2012 to refuse to renew the limited registration of the Applicant is effective until 28 February 2014.
3.The Hearing currently set down for 31 March 2014 is vacated.
4.The matter is listed for Directions Hearing at a date and time to be set by the Tribunal not before 28 February 2013.
The purported consent order was signed by the solicitors for the applicant on 7 November 2013 and the solicitors for the respondent on 8 November 2013. No application was filed. No material in support of the purported consent order was filed. No attempt was made to explain why it was that previous orders of the Tribunal, including an order setting the matter down for hearing, were to be vacated.
Although no application was made, I am prepared to treat the matter as a joint application by the parties for directions pursuant to s 62(6) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).[1]
[1]See Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 75.
The proposed orders are nonsensical. For that reason alone they should not be made. Proposed order 4 seeks that the matter be listed for directions not before 28 February 2013. It may be that this was intended to be 28 February 2014; but that is merely conjecture. The proposed orders also seek the vacation of an order presently staying the operation of the decision under review until 31 March 2014; but substituting in its place an order staying the decision until 28 February 2014.
There are, however, other reasons why the application for directions should be refused. To fully understand these reasons, some history of the matter should be set out.
The application for review was filed on 24 July 2012. It seeks a review of the Board’s decision of 26 June 2012 to refuse Dr Nobleta’s application for renewal of her limited registration as a medical practitioner. Dr Nobleta was informed of the Board’s decision by letter from the Australian Health Practitioner Regulation Agency dated 23 July 2012. That letter also informed Dr Nobleta that her name would be removed from the register of medical practitioners at close of business on 24 July 2012.
On 24 July 2012 Dr Nobleta also applied for a stay of the Board’s decision. The reasons for her seeking a stay included that she was scheduled to undertake the RACGP fellowship examinations on 4 August 2012. She required current registration as a medical practitioner to sit those exams. If she passed the examinations on 4 August 2012, she would then be able to sit the AMC examination on 11 August 2012.[2]
[2]See Annexure A to the application to stay a decision filed 25 July 2012 at [14] - [15].
On 1 August 2012 the Board filed submissions in respect of the stay application. It submitted that a stay of the decision ‘upon a limited or defined time frame’ would be appropriate. The basis for the stay ‘would be to allow the applicant the opportunity to undertake the assessments as scheduled on 4 and 11 August 2012’.[3] The Board submitted that a further period should be allowed for the results of the examinations to be published and to facilitate the processing of an application for general registration.[4]
[3]Respondent’s outline of submissions in response to application to stay a decision, filed 1 August 2012 at [2].
[4]Ibid.
The Board went onto submit that ‘the substantive application for review should be set down for hearing at a reasonable timeframe (sic) notwithstanding the potential outcomes as to whether the applicant is successful or otherwise in the RACGP assessment stream’.[5]
[5]Ibid at [4].
On 2 August 2012 the President of the Tribunal stayed the operation of the Board’s decision until 5:00pm on 5 October 2012 or further order. The Tribunal also ordered that the applicant provide the Board forthwith in writing notice of any examinations or assessments which she applied to undergo, and the results of any such examinations or assessments within seven days of receipt of the results by her.
The matter was listed for directions on 2 October 2012.
On 27 September 2012 the solicitors for each of the parties wrote separately to the Tribunal seeking further directions by consent. Each of those letters sought directions in terms which had been agreed by the parties. However, the parties, properly, referred to the matters upon which they had agreed as a joint ‘proposal’ which they asked the Tribunal to consider and, if acceptable to the Tribunal, to make directions in those terms.
This approach was appropriate and proper as it recognised that the making of the directions sought required the exercise of the Tribunal’s discretion. One of the directions sought was an enlargement of the stay order previously made to continue its operation to 5:00pm on 29 March 2013. The proposal jointly signed by the parties set out information, including the examinations which had been undertaken by Dr Nobleta, including the first module of the RACGP exams and the results which she had attained; the fact that some results were still unknown; the fact that she had applied to resit one of the examinations which was hoped would occur in November 2012; that she was enrolled to sit the third module of the RACGP exams in late October 2012 and had paid a fee of $3,220 to that end; and that she was diligently undertaking preparation for her upcoming examinations.
Those were all matters relevant to the exercise of the Tribunal’s discretion to grant a further stay. That discretion is conferred by s 22(3) of the QCAT Act and is governed by s 22(4). Section 22(4) permits the exercise of the discretion to stay a reviewable decision only if the Tribunal considers it desirable after having regard to the interests of any person whose interests may be affected by the making, or not making, of the order; any submissions made by the decision maker; and the public interest.
The Tribunal extended the stay to 5:00pm on 29 March 2013 or further order. The matter was listed for directions on 26 March 2013.
On 22 March 2013 Dr Nobleta’s solicitor wrote to the Tribunal stating that the parties requested that the Tribunal make directions in terms of an agreement which the parties had reached in that regard. Those directions included that the stay be further extended to 5:00pm on 31 March 2014 or further order. They also require Dr Nobleta to provide to the Board details of any examinations or assessments which she applied to undergo, and the results achieved in them.
Direction 4, as sought, was that the substantive review application be set down for hearing on or about 31 March 2014.
Direction 6, as sought, was that if Dr Nobleta did not obtain a pass mark in the RACGP OSCE on 15 May 2013, she was to sit a PESCI assessment as soon as practical thereafter but no later than 30 September 2013. Direction 7, as sought, was that if Dr Nobleta was required to sit a PESCI pursuant to direction 6 the application was to be listed for directions about 14 days after she had obtained the results of the PESCI.
Whilst no application as such was made, and no material was filed in support, it was apparent from the terms of the directions sought that there was an ongoing plan for further assessment of Dr Nobleta. That provided a sound basis for the further exercise as the Tribunal’s discretion to stay the decision of the Board.
The directions sought were made.
The placing before the Tribunal of a joint request for the favourable exercise of the Tribunal’s discretion based upon appropriate material is in stark contrast to the purported agreement between the parties to a consent order contained in the correspondence and ‘consent order’ provided to the Tribunal on 18 November 2013.
Contrary to the basis upon which the Tribunal was on those earlier occasions invited to exercise its discretion in making directions, including the further stay of the decision under review, on this occasion, even treating the ‘consent order’ as a request for directions, the parties have wholly failed to identify any basis for the exercise of that discretion.
Nothing has been said as to why a hearing date previously sought by the parties one year in advance should be vacated. Nothing has been said as to why a stay of the decision until 31 March 2014 should be vacated, yet replaced with a shorter stay of the decision to 28 February 2014.
Nothing has been said as to whether Dr Nobleta was successful in the OSCE conducted in May 2013 or, if not, whether she sat the PESCI by no later than 30 September 2013 as required by the current directions. Certainly, no request has been made to list the matter for directions as contemplated by direction 7 if the PESCI was required to be sat.
The directions agreed between the parties provide no basis for the progression of the matter. Sight should not be lost of the fact that the substantive proceedings are for the review of a decision not to renew Dr Nobleta’s limited registration for the period from 30 April 2012 to 19 April 2013.[6] Nothing has been said as to why the hearing of the substantive application within ‘a reasonable timeframe’, as submitted by the Board in its submissions of 1 August 2012, is no longer appropriate or desirable.
[6]See exhibit DN3 to the affidavit of Dr Nobleta filed 3 August 2012 and s 112(6), Health Practitioner Regulation National Law.
The application for directions is refused.
The matter will be listed for directions on 13 December 2013 for the purpose of making directions for progressing the matter to the hearing on 31 March 2014.
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