Veterinary Surgeons Board of Queensland v McIntosh
[2011] QCAT 417
•2 September 2011
| CITATION: | Veterinary Surgeons Board of Queensland v McIntosh [2011] QCAT 417 |
| PARTIES: | Veterinary Surgeons Board of Queensland (Applicant) |
| v | |
| Dr Alison McIntosh (Respondent) |
| APPLICATION NUMBER: | VTD001-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Dr Ian Wells, Member Dr Russell Duigan, Member |
| DELIVERED ON: | 2 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The respondent pay the applicant’s costs of and incidental to the application from and including 18 January 2010 to be agreed or assessed by way of a short form assessment from Hickey and Garrett, costs assessors, on a standard basis in accordance with the District Court scale of costs. 2. The costs be paid in 12 equal instalments with the first such instalment to be paid 28 days after any agreement as to the amount of the costs, or 28 days after the respondent is served with the assessment. |
| CATCHWORDS: | Costs – where the enabling Act makes provision for a costs order – where the applicant successful in the proceeding – whether costs follow the event – exercise of discretion – factors to be taken into account in awarding costs including conduct of the proceeding and respondent’s personal and financial circumstances Queensland Civil and Administrative Act 2009, s 100 Veterinary Surgeons Act 1936, s 15D Lyons v Dreamstarters Pty Ltd [2011] QCATA 142 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
On 17 November 2010 the Tribunal made orders that Ms McIntosh be reprimanded and her registration as a Veterinary Surgeon be suspended for a period of 3 months. That decision was made after a three day hearing in the Tribunal which commenced on 25 October 2010.
It follows that by reason of the Tribunal’s orders the Board has succeeded in establishing the charges it referred to the former Veterinary Tribunal on 25 August 2009. The Board has now applied for an order that Ms McIntosh pay its costs of the proceeding on a number of alternative bases which are:-
(a)The Board’s costs of and incidental to the matter on a standard basis;
(b)The Board’s costs on a higher basis following the compulsory conference on 18 January 2010, or
(c)The Board’s costs on a higher basis following the offer made on 17 February 2010, and
(d)The Board’s investigation costs.
The Board has indicated it is prepared to accept, as a compromise, costs fixed in the sum of $120,000. The total costs that might be assessed were the Board to recover indemnity costs, could be as high as $143,000 plus further costs and disbursements subsequent to the hearing of approximately $30,000[1]. The offer is a substantial discount.
[1] Affidavit of Andrew Forbes filed 16 November Ex “ARF 10”.
The application for costs is opposed. Ms McIntosh contends that each party should bear their own costs of the proceeding.
Principles to be applied
The awarding of costs in the Tribunal is usually governed by the provisions of the QCAT Act (section 100) which exhibits a strong intention that the usual position is that parties must bear their own costs of the proceeding unless the interests of justice require it to make another order.[2] However, in circumstances where the enabling Act, here the Veterinary Surgeons Act 1936 confers jurisdiction on the Tribunal to hear and determine disciplinary proceedings, it also confers jurisdiction for the Tribunal to make any decision about costs it considers appropriate.[3]
[2] QCAT Act, section 102(1).
[3] Veterinary Surgeons Act1936, section 15D.
It is submitted by the Board that section 15D displaces the usual position as to the basis upon which costs are awarded in the Tribunal. This is consistent with what the Deputy President said in Lyons v Dreamstarters Pty Ltd[4]:-
“Section 6(7) contemplates that an enabling Act may include provisions for matters that may add to, otherwise vary or exclude provisions of the QCAT Act dealing with such matters. They include provisions dealing with the conduct of proceedings for jurisdictions conferred by the enabling Act, including the practises and procedures and the Tribunals powers for the proceedings (s6(7)(b)). Such provisions are referred to as modifying provisions (s7(1)(b)).
To the extent of any inconsistency between them, the modifying provisions prevails over the provisions of QCAT Act and the QCAT Act must be read, with any necessary changes, as if the modifying provision were part of it (s7(2)(3)).”
[4] [2011] QCATA 142.
Here, there is a clear inconsistency between s 15D of the VSA and s 100 of the QCAT Act. In these circumstances of the VSA must prevail. The Tribunal therefore may make any decision about costs it considers appropriate in the circumstances of the particular proceeding.
It does not follow, as is submitted by the Board, that costs should “follow the event.”[5] That well known proposition is derived from the Uniform Civil Procedure Rules which provides that costs of a proceeding are in the discretion of the court but follow the event unless the Court considers now that an order is more appropriate.[6] We see no basis for adopting that proposition when s 15D sets out how a costs decision should be made.
[5] Board submissions paragraph 30.
[6] UCPR 689.
In exercising the jurisdiction to make a costs order in this Tribunal, the interests of justice remain a valid basis upon which the discretion ought be exercised under section 15D. Also the broad power must still be exercised judicially, not upon irrelevant or extraneous considerations but upon acts connected with or leading up to the hearing.[7] This would include the financial circumstances of the parties. The Board’s submissions are generally confined to relevant matters.
[7] Latoudis v Casey (1990) 170 CLR 534 at 557.
[10] In support of the application, the Board has filed an affidavit by Mr Murray, the Registrar of the Board, who sets out in some detail the history of the proceeding. The Board as a statutory body is charged with the responsibility of administering the VSA and maintaining the professional standards of its members. It also has a responsibility to ensure public confidence in the profession is maintained. It has a duty to commence disciplinary proceedings against a member if it believes there is a prima facie case of misconduct. The Board has an onus to prove any charge laid to the reasonable satisfaction of the Tribunal. Any member charged with a disciplinary matter has the right to defend the charge. Clearly early resolution of such a matter is to the benefit both to the professional and the Board. There are various stages when this might occur. On the presentation of the charge together with the evidence to support the charge, through the alternative dispute procedure in the Tribunal after the application is filed, and of course leading up to the hearing when both parties are in a position to be fully apprised of the case they have to meet.
[11] Once the matter is referred to the Tribunal, it also has an obligation to deal with the matter in a way that is accessible, fair, just, economical, informal and quick[8]. This is achieved, amongst other things, by making directions for the orderly conduct of the matter and providing alternate dispute resolution services.
[8] QCAT Act, s 3.
[12] The Board submits that Ms McIntosh had a number of opportunities to resolve the matter and relies on offers to settle made by it in support of its application for costs. We will return to those offers to settle later in these reasons. The key factual findings to which we will also return were based on the compelling evidence of Dr Wilson and Dr Liyo as to the use of power tools in equine dentistry.
[13] It is contended by the Board that, in the interests of justice and the exercise of discretion, the following matters should be taken into account:
(a)Ms McIntosh’s conduct of the proceeding;
(b)Her failure to make admissions or concessions on certain facts where the evidence to prove those facts was compelling;
(c)Rejecting early offers to settle where the outcome for Ms McIntosh had they been accepted would have be more advantageous to her.
[16] Ms McIntosh disputes these contentions both in the submissions filed on her behalf and in the affidavit of her solicitor, Mr Meade. We propose to deal with the issues raised by the Board in its submissions and Mr Forbes’ affidavit and Ms McIntosh’s response.
Was Ms McIntosh’s conduct of the proceeding reasonable
[17] In the usual way the application was listed for a compulsory conference in January 2010 before it progressed too far. Both parties were aware of the content of the initial report from Dr Liyo which was critical of the treatment of the horses the subject of the complaint against Ms McIntosh. The matter did not resolve at the compulsory conference.
[18] On 15 March 2010, at a directions hearing, directions were made about the filing of statements of evidence and expert reports. A direction was also made about the preparation of an agreed bundle of documents because the allegations against the respondent involved the clinical treatment of a number of horses and the clinical records associated with that treatment were potentially relevant. In addition there were other documents including complaints by the horse owners, and the treatment records of other vets who treated the horses.
[19] The Board complied with the directions insofar as it could but needed input from the respondent with respect to the bundle of documents. By 22 April 2010 the respondent had not complied with the direction to file her material but had sought an extension because she was having difficulty in retaining an expert in equine dentistry.
[20] In any event after further directions hearing the respondent’s material was filed and documents sought by the Board including equine clinical charts, were provided by 20 August 2010.
[21] Ms McIntosh, through her solicitor, has provided a reasonable explanation for the delay and we do not consider this unreasonably affected the progress of the matter.
[22] Another complaint is the failure to comply with the directions of the Tribunal. This relates in particular to the provision of an agreed statement of facts and the bundle of documents. The respondent, rather than agree to a bundle of documents, proposed an agreed list of documents. Although this did not strictly comply with the direction made, the documents agreed to, once identified in the list, could easily be compiled into a bundle by the parties for the hearing.
[23] On 7 September 2010 it was directed that the respondent was to provide dates of treatment of the horses and the identity of the person who performed the treatment. The purpose of this was to identify whether the treatment was carried out by the respondent or Mr Lancaster. The parties were directed to file submissions in respect of this direction. The complaint here is that the Board filed its submissions but Ms McIntosh refused to do so but instead sought a direction from the Tribunal that the direction be vacated. After a further directions hearing she did provide the submissions.
[24] It is not necessary to consider the merits of the application other than to say Ms McIntosh took the sensible approach to refer the matter back to the Tribunal when she raised an objection to the filing of submissions with the Board. This criticism by the Board is not of itself a sufficient reason to justify a costs order.
[25] It is contended that Ms McIntosh caused the Board a disadvantage by reason of her inconsistent evidence.[9] At face value the complaint seems to have some validity but as Mr Meade points out the responses were consistent with Ms McIntosh’s recollection at the time, but as documents were produced and further evidence gathered, her evidence was clarified to reflect the true position. There is nothing unusual about this occurring in circumstances where the events concerning the work done on horses teeth dated back to 2007. Also in the intervening period Ms McIntosh had treated many other animals in her practice. We are not satisfied that any inconsistency that emerged from the gathering of evidence, and Ms McIntosh’s response to it, was deliberate with the intention to frustrate the prosecution or put the Board at a disadvantage.
[9] Affidavit of Andrew Forbes paragraph 27.
[26] Whether Ms McIntosh was insured and the extent of that insurance is only marginally relevant. The financial circumstances of a party can be relevant on the exercise of the discretion to award costs, but it seems to us that the fact there is an insurer behind a party would not of itself justify a costs order. It must be the conduct of the party in the proceeding that attracts the sanction.
Was the evidence compelling to prove the Board’s allegations?
[27] Of more relevance here is the strength of the Board’s case against Ms McIntosh and her lack of insight to accepting that her conduct did require sanction. The evidence the Board presented at an early stage clearly supported two inevitable findings[10]. Firstly, Mr Lancaster was permitted to use a power tool with a float attached rather than the conventional hand held rasp and float where such use by anyone other than a trained vet or practitioner was inappropriate. Secondly, the use of a cut off wheel for incisors, and this cutting and floating without sufficient cooling irrigation could and did lead to pulp damage resulting in loss of teeth and in some cases the ultimate destruction of an animal.
[10]Statements of: Dr Lylio 4 .5.09 (Ex 12); Report of Dr Gary Wilson 10.3.11 (Ex 16); Dr Omar 30.3.2011 Ex 9.
[28] We are entitled to take into account that in the usual way these matters would have been frankly discussed in the compulsory conferences process which took place in January 2010 and on 5 September 2010. By the latter conference the expert evidence had been supplemented with further reports and there had been an agreed statement of facts prepared and an agreed list of documents.
[29] Ms McIntosh ought to have realised at an early stage, either at the first compulsory conference or when she received the first report from Dr Wilson, that her prospect of successfully defending the charges was remote.
[30] We do not accept the respondent’s submission that it was not until the hearing that the exact nature of the case she had to meet became clear with respect to the concept of “filing and rasping”. The exemption in s 2 of the VSA Act,[11] would not, in our view, reasonably contemplate the use of mechanical devices such as cut off wheels, or power floats which have come into use in recent time. As the expert evidence demonstrated, and is obvious from a common sense perspective, these implements should only be used by qualified practitioners because of the severe consequence to the animal when not used properly.
[11] Regulation 3(1)(f) excludes “filing and rasping a horse’s teeth”.
Does the failure to accept the offer to settle justify a costs order?
[31] In addition to the objective facts and expert evidence provided to the respondent, the Board made serious attempts at early resolution. It delivered offers to settle the matter firstly in February 2010 and later on 6 October 2010. Both offers were rejected. The February offer in writing was that the respondent be reprimanded and that she pay the costs of the Board.
[32] The QCAT Rules make provision for the making of offers to settle. If an offer to settle is rejected and the decision of the Tribunal is not more favourable to the other party than the offer made, the Tribunal may award costs to the party making the offer.[12] We see that the Board has a difficulty in relying on the Rule in the strict sense.
[12] QCAT Rules, r 86.
[33] The decision of the Tribunal did not include an order for costs. As we have already observed costs do not follow the event as a matter of course, the making of a costs order involves an exercise of discretion. The Board’s offer that Ms McIntosh accept a reprimand was conditional on her paying the Board’s costs. The Board’s costs were not quantified and therefore the offer was to that extent was uncertain. It cannot be said that the Tribunal’s decision was more favourable than the offer made insofar as costs are involved. It is certainly the case that the sanction offered was more favourable that the Tribunal’s decision. We have therefore come to the conclusion that rule 67 is not strictly applicable in this instance. The Board has no entitlement to indemnity costs because of the offers made.
[34] Having said that it does not mean we cannot take into account, as a discretionary factor, that an offer was made at an early stage in the proceeding. The strength of the Board’s case improved with the production of the further reports of Dr Wilson and Dr Liyo, and their evidence at the hearing. By the second compulsory conference all relevant facts were on the table for discussion. The second offer made on 6 October 2010 was in the same terms of the February offer.
[35] We accept the respondent’s submission that the onus of proving the respondent’s misconduct rests with the Board. Although there is no onus on the respondent to assist the Board in proving its case, she does, in our view have a professional responsibility to cooperate with it in the provision of documents, clinical records and charts in her possession. We consider that until early 2010 there was nothing unusual about the conduct of the proceeding by the respondent which would warrant a costs order.
[36] However, after the conclusion of the second compulsory conference, to proceed with what should have been apparent at the time as being a defence that had little prospect of success, was foolhardy and has put the Board to considerable unnecessary expense. The letter[13] containing the offer clearly sets out the Board’s position and when it was not resolved at the compulsory conference, it should have been resolved then, although we appreciate that the question of costs may have been a barrier.
[13] Affidavit of Andrew Forbes supra ex “ARF 9”.
[37] We are mindful, as submitted by the Board, that it has limited resources. Its income is restricted to membership fees from the profession. It is charged with the responsibility to maintain standards within the profession and should not be hampered in that task because of its potential exposure to legal costs. That is why, as a member of the profession, it was incumbent on the respondent to cooperate with the Board and exercise some insight into her conduct and not put the Board to unnecessary legal expense.
[38] We have therefore come to the decision that the respondent’s conduct should result in a costs order. Ms McIntosh did not file a response to the charges until 2 December 2009. Soon after that the mediation/compulsory occurred on 18 January 2010. The Board prepared a position paper which succinctly set out its position which changed little by the date of the hearing. It is fair to say that the issues may not have fully crystallised until this time. As we have said it is reasonable, having regard to the position paper, that the Board would have laid out in detail its case against the respondent. As the matter did not resolve the Board was obliged to incur substantial costs from that time.
[39] We consider that the appropriate order to make is that the respondent pay the applicant’s costs of and incidental to the application from and including 18 January 2010 when she was fully apprised of the case against her. These costs should be assessed on a standard basis. In coming to this decision we have taken into account the financial circumstances of the respondent as set out in her affidavit. We have also taken into account her health issue.
[40] Although it is preferable that the Tribunal fix costs if it can, unfortunately we are not in a position to do so in this matter. We appreciate that the Board has sought to quantify its costs but this quantification is not supported by any independent assessment.
[41] The Board has also asked for its investigation costs[14]. The Board has not provided any particulars of these costs. It does seem from a perusal of Mr Forbes’ affidavit that these costs are generally included in the solicitors costs set out in the schedule. Although the VSA does provide that we can make an order for investigation costs in the appropriate case, it is part of the Board’s function under the VSA to investigate complaints. In any event, we are of the view that when taking into account the personal and financial circumstances of the respondent, she should not have to pay these costs in addition to the legal costs.
[14] Veterinary Surgeons Act 1936, s 15D(b).
Conclusion
[42] The Tribunal’s order will be that the respondent pay the applicant’s costs of and incidental to the proceeding from and including 18 January 2010 on a standard basis, as agreed or if not agreed as assessed in a short form assessment on the District Court scale of costs by Hickey and Garrett, costs assessors.
[43] Having regard to Ms McIntosh’s financial circumstances we will also order that the costs be paid in 12 equal instalments with the first such instalment to be paid 28 days after any agreement as to the amount of the costs, or 28 days after the respondent is served with the assessment. The obvious intention of this is to give Ms McIntosh time to pay because it is expected the amount of costs will be substantial.
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