Podiatrists Board of Queensland v Hermann
[2010] QCAT 309
•26 March 2010
| CITATION: | Podiatrists Board of Queensland v Hermann [2010] QCAT 309 |
| PARTIES: | Podiatrists Board of Queensland (Applicant) |
| v | |
| Robert Nikolaus Hermann (Respondent) |
APPLICATION NUMBER: HPT004-08
| MATTER TYPE: | Occupational regulation matters |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Deputy President |
DELIVERED ON: 26 March 2010
DELIVERED AT: Brisbane
ORDERS MADE: 1. Application to exclude evidence of Dr Tom Smith refused.
2. Neither party may call more than one expert in any area of expertise.
| CATCHWORDS : | EVIDENCE - EXPERT EVIDENCE – Whether applicant has had a reasonable opportunity to call evidence if the application is granted; whether there is sufficient evidence about a matter before the tribunal; whether the tribunal should allow the applicant to call Dr Smith to give evidence. Queensland Civil and Administrative Tribunal Act 2009 ss 3(b), 4(c), 95(1),(2)(a). |
APPEARANCES and REPRESENTATION (if any): Heard on the papers
REASONS FOR DECISION
The Podiatrists Board of Queensland asserts grounds exist for the tribunal to take disciplinary action against Mr Hermann in relation to his assessment and, in some cases, surgical treatment of 8 patients between September 2003 and June 2006.
Mr Hermann proposes to call evidence from two Podiatric Surgeons, Mr Andrew Kingsford and Mr Tom Smith. Both have provided reports. The Board seeks an order which would prevent Mr Hermann from calling Mr Smith.
The tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence.[1] Despite that, the tribunal may refuse to allow a party to call evidence on a matter if it considers there is already sufficient evidence about it before the tribunal.[2]
[1] s95(1)(a) Queensland Civil and Administrative Tribunal Act 2009
[2] s95(2)(a) Queensland Civil and Administrative Tribunal Act 2009
The Board argues there is already sufficient evidence before the tribunal from Mr Kingsford on the matters about which Mr Smith would give evidence. It points to the instructions given by Mr Hermann’s solicitors to the two surgeons, which request them to address the same questions. Mr Hermann argues the evidence from Mr Smith will be of assistance as he, like Mr Hermann, has conducted a long distance practice.
He also argues it is too early to assess whether there is sufficient evidence before the tribunal. I am not persuaded that is so. The evidence proposed to be given in chief has been reduced to writing and it is possible for the tribunal to make that assessment now.
Practice Direction 4 of 2009[3] provides a party may call evidence from only one expert for each area of expertise. The tribunal has power to order otherwise. Case management should not supplant the objective of doing justice between the parties[4].
[3] Paragraph 2
[4] Per French CJ in Aon Risks Services Australia Limited The Australian National University [2009] HCA 27 at [30]
The Practice Direction does, however, define the practice generally to be adopted when expert evidence will be called. It must be assumed the practice is directed to the objective for the tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[5] It is one of the tribunal’s functions to ensure proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice.[6]
[5] s3(b) Queensland Civil and Administrative Tribunal Act 2009
[6] s4(c) Queensland Civil and Administrative Tribunal Act 2009
It is widely accepted in the legal profession that calling multiple experts increases the cost of proceedings for both parties. In recent times, many courts and tribunals have defined practices to avoid what came to be known as trial by experts. An expeditious and cost-effective process should be preferred, unless there is reason to depart from that course.
As a starting point, then, the tribunal has indicated by its practice direction that a party has a reasonable opportunity to call expert evidence if it is allowed one expert from each field of expertise.
Mr Hermann calls up the principle established in Briginshaw v Briginshaw[7] that the degree to which a decision maker should be satisfied of a particular finding is determined by the gravity of the consequences that might flow from the finding. I accept, by analogy, the principle has relevance for the procedure adopted by the tribunal.
[7] Briginshaw v Briginshaw (1938) 60 CLR 336 at 363
Many of the allegations of unsatisfactory professional conduct levelled by the Board against Mr Hermann relate to his post-operative care of patients.[8] Mr Hermann argues Mr Smith can assist the tribunal in assessing those contentions because Mr Smith, like Mr Hermann, conducts a long distance practice. It is difficult to resist the Board’s answer that what post-operative care is reasonable does not depend upon the way in which the practitioner chooses to conduct their practice.
[8] Particulars 1.1, 1.2, 2.1, 3.1.3, 3.1.4, 3.1.5, 4.2, 6.1.2, 7.1.2, 7.1.3, 7.1.4)
In any case, Mr Smith’s evidence is not so confined. Mr Smith’s report does not fill a void left by the evidence from Mr Kingsford who, also, addresses comprehensively the question of post-operative care. It is hardly surprising that, faced with the same brief, the two experts have provided reports that canvass the same territory.
This disciplinary proceeding was scheduled for an earlier hearing, which was abandoned. Then, Mr Hermann had proposed to run the hearing relying only on the evidence of Mr Smith. There has been no change to the Board’s material. The Board argues this fact counts against Mr Hermann being allowed to call Mr Smith. Mr Hermann should not be held to an earlier forensic decision if it is appropriate, now, for him to call Mr Smith.
The Board also questioned the relevance of Mr Smith’s evidence. It argued the concept of unsatisfactory professional conduct is to be judged in the context of Australian practice and the expectations of the Australian profession and public. Mr Smith, it argues, has not practised in Australia and has not demonstrated his expertise to assist the tribunal in this regard.
To dispose of this application, it is not necessary to determine that question. Suffice it to say, I remain to be convinced that questions of professionalism are necessarily confined by reference to national boundaries.
The tribunal has the power to limit the evidence which may be called by a party to the proceedings. Practice Direction 4 of 2009 does so. No cogent reason has been led to depart from that course. Paying due regard to the gravity of the proceedings, I am not persuaded evidence from more than one podiatric surgeon called by Mr Hermann will better inform the tribunal.
The Board seeks an order which prevents Mr Hermann from calling Mr Smith. In this case, it is not appropriate to dictate which expert Mr Hermann must rely upon. I refuse the Board’s application. Instead, I order neither party may call more than one expert in any area of expertise.
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