Introduction
The Queensland Court of Appeal has considered an appeal of a decision by the Queensland Civil and Administrative Tribunal awarding the successful applicant costs in an application for review of the suspension of his registration as a medical practitioner in Australia. The decision follows a series of recent Tribunal decisions confirming that for regulatory proceedings, the Tribunal should be considered a jurisdiction in which costs will more readily be awarded, with implications for regulators in the conduct of regulatory proceedings.
Background
An investigation into Obstetrics and Gynaecology services at the Mackay Base Hospital conducted from 2021 to 2022 cited serious concerns, including foetal deaths and maternal injuries due to inadequate care. The Hospital’s Clinical Director of Obstetrics and Gynaecology, the respondent, was suspended from this role on 13 October 2021, resigning from the position in March 2022. The appellant first received a notification regarding the respondent’s clinical performance on the same date as his suspension. The respondent subsequently commenced employment interstate.
The appellant received an expert report critical of the respondent’s treatment of 15 patients on 21 June 2022. Without utilising the available ‘show cause’ process, the appellant suspended the respondent’s medical registration on 27 June 2022, citing serious risk to patients.
On 25 July 2022 the respondent appealed this decision in the Queensland Civil and Administrative Tribunal. The respondent conceded concerns relating to his notetaking and leadership capability. The appellant declined the proposal to lift the suspension in place of conditions on his registration to allay the concerns conceded by the appellant.
On review the appellant relied upon the same expert report, however, submitted only seven patients’ care ought to be considered by the Tribunal. The Tribunal considered the respondent’s treatment of each patient before it, and concluded that none of the care provided by the appellant gave rise to concerns that he posed a serious risk. The Tribunal found no basis to confirm the decision of 27 June 2022, and the suspension was set aside.
The respondent then obtained an order that the appellant pay his costs on a standard basis, at the District Court scale of costs. Her Honour Judge Julie Dick SC considered the parties’ claims, particularly that the Tribunal made no serious criticisms of the respondent’s clinical practice and that the appellant had imposed immediate action without first complying with the available show cause process. It was stated that it was ‘difficult [for the Tribunal] to see how the [appellant] could form a view [that the respondent] posed a risk in Queensland’. Costs were awarded as the respondent had been entitled to legal representation to pursue his rights, and the appellant had mounted a spirited defence of the respondent’s decision up to and including the Tribunal hearing.
Law
The objective of the Tribunal is to deal with matters in a manner that is accessible, fair, just, economical, formal and quick. Ordinarily, parties in a proceeding before the Tribunal are not entitled to be legally represented, although parties are entitled to be legally represented where they are a child or have impaired capacity; the proceeding relates to disciplinary action; a party is granted leave by the Tribunal; or an enabling Act states that the person may be represented. In deciding whether to grant leave, the Tribunal may consider issues including whether the proceeding is likely to involve complex questions of fact and law, and whether another party is legally represented. In the matter in question, the parties were not required to apply for leave as the responded had applied for review of disciplinary action.
Ordinarily, each party in a proceeding before the Tribunal bears its own costs, however, the Tribunal may order costs if it is required in the interests of justice. In deciding whether to award costs, the Tribunal may have regard to a number of factors, including the nature and complexity of the dispute subject of the proceeding.
Deliberation
The Court considered that the Tribunal is granted jurisdiction in a multiplicity of matters, including a range of minor civil disputes, and that for the most part, the Tribunal’s objectives are furthered by distinction from proceedings before a Court. One aspect of this distinction is the limitation of parties’ rights to legal representation. The processes of the Tribunal are, by design, more easily and, by inference, more appropriately accessed by an ordinary party without legal representation.
The Court found that the provisions relating to costs ought to be interpreted with references to the fact that certain classes of persons are entitled to legal representation. What is in the interests of justice had not been considered in any analogous case available to the Court, requiring determination with reference to the legislative scheme affording jurisdiction to the Tribunal, and with regard to the circumstances of the proceeding in which the question arises.
Findings
Both parties agreed that the complex nature of these proceedings necessitated legal representation. The Court found that it was such circumstances in which the legislation governing Tribunal costs contemplated a departure from the ordinary position of the Tribunal. It was not necessary to demonstrate a ‘strong contra-indication against costs orders’; the awarding of costs is merely a starting point. The Court found that Her Honour had correctly applied the inquiry required by the Tribunal’s costs provisions in exercising her discretion to award costs.
The appellant further submitted that public policy considerations be taken into account given its statutory function including protecting the health and safety o the public. Her Honour found that the evidence did not support a finding that he was a serious risk to patients. The appellant had selectively relied upon available material when making the primary decision and apparent troubling clinical themes were not supported by the evidence before the Tribunal. In awarding costs, Her Honour had acknowledged that weight ought be placed on the appellant’s statutory functions, and it was a matter for her how much weight to ascribe to this consideration. This ground of appeal was not made out.
Implications
This case is the first in which the Court of Appeal has considered the issue of Tribunal costs in some time. However, there has been a growing body of decisions of the Tribunal finding, on application by respondents to regulatory proceedings, that the interests of justice require a finding to award costs.
In Medical Board of Australia v TXA (No 4) [2023] QCAT 360, the respondent medical practitioner had been suspended by way of immediate action, which had been set aside by the Tribunal shortly prior to the referral at hand for professional misconduct proceedings. Judicial Member McGill SC found that ‘it would have been obvious well before the hearing that [the applicant] had no evidence to support its position’ on two of three contested facts, and without those, the third became irrelevant.
This decision should not be seen as providing a basis upon which all parties successful in bringing or defending disciplinary proceedings in the Tribunal may successfully obtain their costs of doing so. It will still be necessary to establish that, in all of the circumstances, the interests of justice requires the making of a costs order. This decision should reinforce the nature of such proceedings as a hearing ‘de novo’. That is, that a regulator is not required to defend regulatory action it has taken, but rather to consider the merits of the case before it, as it unfolds. The value of negotiation in the early stages of regulatory proceedings should not be underestimated by parties to utilise the available regulatory scheme to reach an outcome that protects both practitioners and the public.
Written by Anna Crawford