Ofili v The Medical Board of Australia - [2015] QCAT 438

CITATION:

Ofili v The Medical Board of Australia [2015] QCAT 438

PARTIES:	Sunday Joseph Ofili (Applicant)
v
The Medical Board of Australia (Respondent)

APPLICATION NUMBER:

OCR109-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

His Honour Judge Horneman-Wren SC, Deputy President

DELIVERED ON:

16 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application of the Medical Board of Australia is refused.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – where registrant granted provisional registration subject to conditions – where registrant sought review of the conditions imposed – where directions requiring the Medical Board of Australia to file and deliver bundle of documents to the registrant were not complied with – whether leave should be granted to allow application seeking to vacate directions – where leave refused

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Sunday Joseph Ofili (self-represented)

RESPONDENT:

Mr Forbes of Lander & Rogers Lawyers

REASONS FOR DECISION

On 14 October 2014 – 2015, the Tribunal made orders referring the Medical Board of Australia’s application to vary directions made by the Tribunal on 3 September 2015. These are my reasons.
On 9 June 2015, the Queensland Registration Committee of the Medical Board of Australia considered an application by Dr Sunday Ofili for provisional registration as a medical practitioner under the Health Practitioner Regulation National Law. The Board’s decision was to grant provisional registration, subject to certain conditions. Dr Ofili was informed of the Board’s decision by letter from the Australia Health Practitioner Regulation Agency, dated 22 June 2015.
On 13 July 2015, Dr Ofili filed an application in the Tribunal to have the Board’s decision reviewed. On 31 July 2015, directions were made requiring the Medical Board of Australia to file and to deliver to Dr Ofili a bundle of documents, pursuant to section 21 of the QCAT Act. Section 21 requires a decision-maker to provide to the Tribunal any document or thing in the decision-maker’s possession or control that may be relevant to, the review of the decision-maker’s decision. Those directions also required the Board to file and to deliver to Dr Ofili a statement of reasons. That, too, is required by section 21 of the QCAT Act. Each of those steps were required to be taken by 4 pm on 14 August 2015.
The final direction made on 31 July 2015 was that the application be listed for a compulsory conference in the Tribunal on 3 September 2015. A compulsory conference was held on that date. It was conducted by a Senior Member of the Tribunal. On 3 September 2015, after the compulsory conference, further directions were made for the future conduct of the review application. Those directions emerged from the compulsory conference.
Direction 1 required Dr Ofili to file in the Tribunal and give to the Medical Board of Australia his statements of evidence and submissions by 4 pm on 17 September 2015. Dr Ofili complied with this direction. Direction 2 required the Board to file and give to Dr Ofili its statements of evidence and submissions by 4 pm on 9 October 2015. Direction 3 required Dr Ofili to file and give to the Board any submissions in reply by 4 pm of 16 October 2015. Direction 4 listed the matter for this directions hearing today. Direction 5 listed the application for a two-day hearing on 5 and 6 November 2015.
By email sent at 4.47 pm on 9 October 2015, the solicitors for the Board attached for filing an application for miscellaneous matters, seeking the vacating of directions 2 and 3 made on September 3, and the making of fresh directions requiring the Board to file and deliver its statements of evidence and submissions by 4 pm on 16 October 2015 and requiring Dr Ofili to file and deliver any submissions in reply by 4 pm on 23 October 2015. The Board also attached an affidavit of Cian June Carter-Brown and submissions in support of its application.
Notwithstanding that these documents were emailed at 4.47 pm on Friday, 9 October 2015, understandably, the Tribunal’s seal was not stamped upon them until Monday 12 October 2015, so they were, in fact, filed on that later date: see rule 31(1) of the Queensland Civil and Administrative Tribunal Rules 2009.
Dr Ofili opposes the application.
Ms Carter-Brown is a legal officer with Australian Health Practitioner Regulation Agency. In her affidavit, sworn on 9 October 2015, she deposes to the Board having been served with Dr Ofili’s submissions in response to the Board’s statement of reasons on 16 and 17 September 2015. Whilst Dr Ofili entitled that document “Dr Ofili’s Response to MBA Statement of Reasons”, they were, of course, his submissions in the proceedings. They were submissions made to, and to be considered by, the Tribunal, in considering and determining his review application. They were not submissions made, as such, to the board.
However, Ms Carter-Brown goes on to depose to the next meeting of the Board’s Registration Committee, following receipt of Dr Ofili’s submissions, as having been scheduled for 22 September 2015. She deposes to the cut-off point for submitting agenda items for that meeting as being 11 September 2015 and that, as a consequence, Dr Ofili’s submissions were unable to be submitted as an agenda item at that meeting.
She further deposes to the next committee meeting being scheduled to take place on the afternoon of 13 October 2015 and to Dr Ofili’s submissions having been submitted as an agenda item for that meeting. She deposes that when the committee meets on that date, it would consider the material submitted by Dr Ofili. She deposes that the committee may make a fresh decision in relation to his provisional registration.
In the submissions filed by the Board’s solicitors, they say, at paragraph 5, of the compulsory conference on 3 September 2015:
“Directions were proposed, including with respect to delivery of material by the Board. The date nominated was 16 October 2015. This was not reflected in the directions subsequently made by the Tribunal.”
It is to be noted that no-one on behalf of the Board has deposed to that fact. In the absence of evidence, I simply do not accept it. It does not accord with Dr Ofili’s recollection. It is inconsistent with the signed report of the Senior Member of the Tribunal, made on 3 September 2015, which recorded the directions to be issued. Directions 2 and 3, as recorded in that document and signed by the Senior Member, accord with the directions issued. They set the dates for the Board’s material and Dr Ofili’s material in reply as, respectively, 9 and 16 October.
If directions had been issued on 3 September 2015 which were inconsistent with the date nominated for the delivery of the Board’s material in the compulsory conference on that date, I would expect that experienced solicitors acting conscientiously would have raised the error immediately; particularly if the Board’s internal arrangements were such that it would be unable to comply with the directions said to be erroneously made. No such application was made.
Considering the Board’s application more broadly, it should be refused for a number of reasons.
First, it is not timely. If the directions as made would result in the Board’s committee not being able to consider them, the relevance of which is a matter to which I shall return shortly, until 13 October 2015, because the cut-off date for the 22nd September meeting was 11 September 2015, then that is a matter which was known by the Board and ascertainable by its solicitors, at the very latest, on 11 September 2015, but, one would assume, well before that date and, perhaps, even as early as 3 September, when the directions were issued. Yet, no application was made until 9 October 2015 – technically, 12 October – when the Board was already non-compliant. No explanation for that has been provided.
Secondly, the Board’s evidence and submissions on the application seem to misconceive the nature of the proceedings. They seem to proceed as though Dr Ofili’s submissions were being made to the Board for some further consideration by it. They were not. As stated above, they were made in the proceedings in the Tribunal, for the Tribunal’s consideration. Of course, the Board would consider the submissions in formulating its own submissions and deciding what, if any, evidence it may adduce.
It is a matter for the Board how it organises its affairs. If it does not want to add an agenda item to a meeting to be held five days after material is received by Dr Ofili, or if it does not want to meet out of session, those are matters entirely for the Board; but they are also simply matters of convenience to the Board. If the result is that the Board is unable to comply with directions made, and to which no objection has been voiced, so be it.
The Board’s evidence and submissions seem to assume that it had some formal role to discharge in considering Dr Ofili’s submissions, which required it to meet formally. It did not. Its only function in considering Dr Ofili’s submissions was to provide instructions to its lawyers for the further conduct of the proceedings. This false assumption is reflected in the third reason why the application should be refused.
The board’s submissions develop Ms Carter-Brown’s evidence that the committee, upon considering Dr Ofili’s submissions on 13 October 2015, may make a fresh decision about the registration, to submit that:
If a new decision is made, it may become the decision under review in this proceeding.

Leaving to one side how this may occur, if one were to assume that it did, even with Dr Ofili’s consent, it would mean that Dr Ofili would not have had, and would not in the future have, the opportunity, as the applicant, to adduce evidence in support of any case he may advance for the review of such a decision. Yet the Board, as the respondent, would’ve had such an opportunity. Simply allowing Dr Ofili the opportunity to make “further submissions in reply,” as the Board’s draft directions propose, would not be sufficient to cure this unfairness.
This leads to the fifth reason why the Board’s application should be refused.
Contrary to its submissions, prejudice does arise. Dr Ofili would be prejudiced. Even if the Board’s proposed directions were to be amended to permit Dr Ofili to adduce evidence, in order to preserve the hearing dates, the time for doing so would need to be restricted to seven days, so that the filed material could be distributed to the assessors who will assist the Tribunal. Requiring an unrepresented applicant to muster and put on an evidentiary case and make submissions about a decision within seven days of having been notified of the decision and the case he has to meet is, in my view, unfair, and would, in all likelihood, be a denial of nature justice.
For these reasons, the Board’s application to vary the directions made on 3 September 2015 was refused.