Pawape v Medical Board of Australia

[2023] QCAT 257

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pawape v Medical Board of Australia [2023] QCAT 257

PARTIES:

GIBSON PAWAPE

(applicant)

v

MEDICAL BOARD OF AUSTRALIA 

(respondent)

APPLICATION NO/S:

OCR028-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 July 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

ORDERS:

1.     Each of the applications filed on 29 June 2023 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – POWERS AND FUNCTIONS – GENERALLY – where the applicant practitioner previously applied to review a decision of the respondent Board – where the Tribunal made a decision in the review application – where the applicant was substantively unsuccessful in the review application – where the applicant applies to reopen the proceeding to correct it – where the applicant applies for costs – whether there is power in the Tribunal to reopen the proceeding – whether it is in the interests of justice to make an order as to costs

Health Practitioner Regulation National Law (Queensland) s 178

Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102, 135

Cachia v Hanes (1994) 179 CLR 403

Pawape v Medical Board of Australia [2023] QCAT 161

APPEARANCES & REPRESENTATION: 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 14 June 2023 the Tribunal handed down its decision and reasons on an application lodged by Dr Pawape (the applicant) to review a decision of the Medical Board of Australia (the Board) to impose conditions on his general registration pursuant to section 178(2) of the Health Practitioner Regulation National Law (Queensland) (National Law). [1] 

   [1]Pawape v Medical Board of Australia [2023] QCAT 161

2. The Tribunal[2]:

   (a)set aside the Board’s decision made on 1 February 2023;

   (b)decided pursuant to s 178(1)(a)(i) of the National Law that it reasonably believes that the way in which the applicant practises the health profession and his professional conduct may be unsatisfactory;

   (c)decided to take action pursuant to s 178(2)(c) of the National Law to impose conditions on the applicant’s registration in the terms set out in Exhibit 2; and

   (d)gave liberty to apply within 14 days (collectively the Decision).

   [2]Ibid at [137]

3. The effect of the Decision is that the applicant is subject to conditions relating to limitations on practice, supervised practice; education, mentoring and auditing[3].

   [3]Ibid at [3], [135] and Exhibit 2

4. Despite this, the applicant has filed an application received on 29 June 2023 to recover costs quantified at $100,000. These are stated in the application as:

   (a)Legal costs of $10,000; and

   (b)Costs of the Royal Australasian College of General Practice Fellowship Support Program (FSP) over a two-year period $60,000; and

   (c)Medical indemnity $30,000.

5. The applicant has also filed an application for reopening, correction, renewal or amendment received on 29 June 2023. It is apparent from the substance of that document that the applicant seeks to “correct” the Decision, with arguments directed to seeking modification or non-application of the conditions in Exhibit 2 through the mechanism of the convening of a compulsory conference.

6. For the reasons that follow, each of these applications is dismissed.

The application to correct the Decision

1. The Tribunal delivered extensive, thorough and incisive written reasons for the Decision, after hearing oral argument over two days.

2. The statutory power to correct mistakes provides that the Tribunal may correct a decision made by it in a proceeding if the decision contains a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a matter, person or thing or a defect in form[4].

   [4]Section 135 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act)

3. It is apparent from the terms of the application that this is not, in substance, what the applicant seeks to do. In fact, the applicant seeks

   (a)“… to correct the wholesale endorsement of Exhibit 2 conditions via asking for a compulsory conference to best review the conditions to avoid the same mistakes or challenges on previous two jobs in Townsville QLD …”

4. The reasons he seeks this relief include:

   (a)“Exhibit 2 conditions are way too onerous determined by five different clinics since 15.12.22”; and

   (b)“Exhibit 2 condition fails to achieve safe practice. In fact puts patients at serious risks. Please review case #10, stroke case and current supervision is unsafe documents’. They were not discussed and reviewed during the 13-14 March 2023 hearing”.

5. The relief which the applicant seeks goes, on its face, well beyond what is conferred by section 135 of the QCAT Act. The applicant is seeking to go behind the Decision to have the conditions altered or ameliorated. The Tribunal has no power to do that pursuant to an application made pursuant to s 135 of the QCAT Act, or at all.

6. When the Tribunal provided the Decision to the applicant by email on 14 June 2023 it also provided an ‘Appeals information notice’. That notice was again provided to the applicant by my associate by an email of 19 June 2023.  

7. The Tribunal dismisses the application to correct the Decision.

The application for costs

1. The Tribunal’s powers to order costs are conferred by the QCAT Act.

2. Relevantly:

   (a)Section 100 provides that other than as provided under the QCAT Act, each party to a proceeding must bear their own costs for the proceeding;

   (b)Section 102(1) provides the Tribunal may order a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to be made;

   (c)Section 102(3) sets out factors which the Tribunal may have regard to in deciding whether to award costs.

3. In this proceeding, whilst the applicant had the Board’s decision set aside, the Tribunal was satisfied, on the material before it, that it reasonably believes that the way in which the applicant practises the health profession and his professional conduct may be unsatisfactory. It was further satisfied that conditions proposed by the Board to try to narrow the issues between the parties were appropriate to be imposed on the applicant’s registration, having regard to the paramount principles.

4. Thus, the applicant has been substantively unsuccessful in seeking a review of the imposition of conditions on his registration.

5. As such, the Tribunal does not consider the interests of justice require any departure from the position expressly provided for by section 100 of the QCAT Act, that each party bears their own costs.

6. In any case, the bulk of the costs sought by the applicant (the costs of the College Programme and medical indemnity) are not costs which would be recoverable pursuant to section 100 of the QCAT Act[5], even if the Tribunal had determined the interests of justice required an order for costs to be made. 

   [5]Cachia v Hanes (1994) 179 CLR 403