Tsigounis v Medical Board of Queensland (No.2)

[2005] QDC 170

DISTRICT COURT OF QUEENSLAND

CITATION:

Tsigounis v Medical Board of Queensland (No.2) [2005] QDC 170

PARTIES:

TSIGOUNIS, Helen

Appellant

Against

MEDICAL BOARD OF QUEENSLAND

Respondent

FILE NO:

1136 / 04

DIVISION:

Appellate

PROCEEDING:

Appeal from decision of the Medical Board of Queensland.  Judgment on costs

DELIVERED ON:

21 June 2005

DELIVERED AT:

Townsville

HEARING DATES:

23-25 August 2004, 31 January, 1-4 February, 7-11 February, 7 April 2005.  Written submissions received on 13 & 18 April 2005.  Written submissions on costs received on 24 & 25 May and 17 June 2005.

JUDGE:

C.F. Wall Q.C.

ORDERS:

  Respondent to pay 15 per cent of the appellant’s costs of and incidental to the appeal, to be assessed on the standard basis unless agreed.

CATCHWORDS:

COSTS – ASSESSMENT - costs follow the event - departing from the general rule – relevant considerations – most time at appeal spent on issues on which the appellant failed – unreasonable and inappropriate for respondent to pay those costs.

Legislation referred to:
Uniform Civil Procedure Rules r. 689

COUNSEL:

Mr M. J Ward for the Appellant
Mr D. Tait S.C for the Respondent

SOLICITORS:

Gateway Lawyers for the Appellant
Phillips Fox for the Respondent

HIS HONOUR:  The appellant submits that the respondent should pay all of her costs of the appeal.  She relies upon the following matters:

1.The result of the appeal including that the third order I made reflected the third order sought by the appellant in her notice of appeal.

2.The unwillingness of the respondent to compromise and its insistence on upholding its decision in respect to both unsatisfactory performance and cancellation of registration.

3.The telephone conversation on the 6th of August 2004 between Miss Jane Dixon, then junior counsel for the appellant, and the respondent's solicitor, Mr Andrew Forbes, wherein Miss Dixon said that in the event of a result such as or similar to that in fact achieved by the appellant, the appellant would seek costs against the respondent.  Miss Dixon suggested as a possible compromise either conditional registration with conditions agreed upon by the parties or alternatively an extension of the appellant's internship for a period of up to 12 months with conditions as agreed between the parties.  Miss Dixon's proposals do not appear to have been subsequently put by way of a written offer to compromise the appeal, and according to her note of the conversation, Mr Forbes

"expressed that he was not confident we had instructions to settle the appeal as he had nothing in writing from us yet."

Miss Dixon suggested to senior counsel that once instructions were obtained from the appellant, they should write to the respondent "setting out a suggestion for conditional registration or extension of internship for a period of up to 12 months and costs to date to be borne by each of the parties."

No such letter is referred to by either party and I can only conclude that instructions to the effect referred to by Miss Dixon, were never given by the appellant.

4.In August 2004, the appellant says the respondent put a written proposal to the appellant (and this is not disputed by the respondent) that the appeal be dismissed with costs and that should the appellant apply for registration she be granted conditional registration with internship conditions including that she complete 12 months' internship and comply with other conditions.  This proposal was unacceptable to the appellant because she says the conditions were "more onerous and inconsistent with the requirements of the Act."  I cannot agree that there was no power to impose such conditions more so when the intention was that the appellant consent to them.

5.At the conclusion of the third day of the hearing of the appeal (25th of August 2004) I was told (T262 - 267) that the parties had "agreed to have some discussions in Brisbane on Friday, 27th August 2004, to try and resolve the case."  And at their request I adjourned the further hearing of the appeal to a date to be fixed.  The appellant refers to this being as a result of, "a possible proposal put forth by the respondent."  The appeal was not resolved in Brisbane and the further hearing resumed on the 31st of January 2005.

6.Rule 689 of the Uniform Civil Procedure Rules, provides that costs of a proceeding are in the discretion of the Court but should follow the event unless the Court considers another order is more appropriate. The appellant submits that costs should follow the event "in the absence of special circumstances", of which it is submitted there are none in this case.

7.During the hearing of the appeal (with the exception of what I have already mentioned), the respondent's consistent stance was to uphold the decision in all respects, conceding though that if the appeal was dismissed, it would be open for the appellant to re-apply for registration with internship conditions.

8.Alternatively it is submitted that the respondent should pay "a substantial portion - not less than 80 per cent" of the appellant's costs.

The respondent submits that the appellant has failed on the "key issue" of whether she had satisfactorily completed her internship and for this reason should be ordered to pay the respondent's costs of the appeal.

By far most time (in my estimate at least 85 per cent) at the hearing of the appeal was taken up by issues on which the appellant failed, namely whether she had completed 12 weeks' surgery and whether she had satisfactorily completed her internship.  The appellant's position on these issues was unreasonably obstinate in the face of compelling evidence to the contrary.  I do not consider it would, in the circumstances, be reasonable or appropriate for the respondent to pay the appellant's costs of litigating those issues.  In my view, another order would more appropriate in the circumstances.

The evidence overwhelmingly established incompetence on the part of the appellant and her failure to satisfactorily complete her internship in all areas in which she worked.  The evidence was so one-sided that I have given anxious consideration to ordering the appellant to pay the respondent's costs on those issues on which the respondent succeeded and the appellant so clearly failed.

The appellant did however, succeed in some relatively minor issues in relation to some of the factual instances of unsatisfactory performance relied upon by the respondent and on establishing one additional week of surgery.  Her success on those issues of unsatisfactory performance was though, more because the respondent's evidence was less than required as opposed to a preference for her account of events and her success on the additional week of surgery made no difference to the result because the 11 weeks she in fact performed, were performed unsatisfactorily.

The appellant has succeeded in relation to the decision to cancel her registration but not to the extent she sought.  Granted the cancellation of her registration was set aside, but because she failed on the other issues, she did not succeed in gaining unconditional registration which she at all times vehemently contended she was entitled to.

An important item of evidence influencing my decision to uphold the appeal so far as it related to the cancellation of the appellant's registration was the report of Professor Judson, supplemented by evidence given by him.  That report was obtained by the appellant at her cost but Professor Judson was called as a witness by the respondent.

In all of the circumstances I consider it fair and reasonable and appropriate that the appellant recover 15 per cent only of her costs.  I think that is a relatively generous apportionment of the time in percentage terms which was taken up by the issue on which the appellant succeeded.

I order that the respondent pay 15 per cent of the appellant's costs of and incidental to the appeal, to be assessed on the standard basis unless agreed.

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