Medical Board of Australia successfully appeals QCAT's indemnity costs decision
eBulletin - 10 May 2017
The Medical Board of Australia successfully appealed a QCAT decision to award costs against it, with the Court of Appeal finding no basis to depart from default position that each party is to bear their own costs in the QCAT jurisdiction. We acted for the Medical Board in this matter.
In QCAT proceedings, the default position is that parties must bear their own costs. However, the Tribunal may award costs against a party at its discretion if it believes the interests of justice require it. There has been some uncertainty of what this really means, and this decision along with another recent decision shed some light on how QCAT applies this to regulators.
In this eBulletin, we review the Court of Appeal's decision and its implications.
- Impairment versus professional misconduct
- The award of costs in QCAT proceedings
- Significance of the Board's win
- Further information
A National Board, such as the Medical Board of Australia, has a statutory obligation to refer a matter about a registered health practitioner to the responsible Tribunal if it reasonably believes the registered practitioner has behaved in a way that constitutes professional misconduct.
In 2014, the Board commenced disciplinary proceedings against a registered medical practitioner, Dr Kevin Wong, because it believed that Dr Wong had engaged in conduct that amounted to professional misconduct.
Dr Wong had a history of mental illness and, many years ago, had participated in a previous regulator's health assessment and monitoring program. In 2012, Dr Wong was charged with 27 counts of sexual assault. In 2013, the Queensland Mental Health Court concluded Dr Wong was suffering an unsoundness of mind at the time of the sexual assaults and the criminal charges against him were not pursued. The Board's disciplinary proceedings had been stayed pending conclusion of the criminal proceedings.
Early in the proceedings, legal representatives for Dr Wong issued the Board without prejudice correspondence. That correspondence invited the Board to deal with the matter as an "impairment" matter, as distinct from seeking a finding of professional misconduct. Relevantly, the proposal was made before any expert opinion was disclosed or obtained in the proceedings. Consequently, the Board responded stating the disciplinary proceedings had been properly commenced and it was open to the Queensland Civil and Administrative Tribunal (QCAT) to find Dr Wong engaged in professional misconduct.
The parties agreed Dr Wong ought to be further assessed by a psychiatrist. That assessment concluded Dr Wong suffered chronic schizophrenia and required lifelong medication with on-going psychiatric care.
The Board then filed an amended application which included that Dr Wong suffered an impairment. The Board submitted it was open to the QCAT to make a finding of professional misconduct together with or alternatively [to] an impairment. Ultimately, the Board did not pursue a finding of professional misconduct but sought a finding of impairment and cancellation of Dr Wong's registration.
Dr Wong formally admitted the allegations of sexual misconduct but denied professional misconduct or unprofessional conduct by reason of his mental illness.
The QCAT found Dr Wong had an impairment, imposed conditions on his registration and ordered the Board to pay Dr Wong's costs, partially on an indemnity basis.
The Board appealed the decision to award costs against it.
In QCAT proceedings, parties must bear their own costs for the proceedings.1 However, the Tribunal may award costs at its discretion if "the interests of justice require it".2
The Court of Appeal overturned QCAT's decision to award costs stating that unless the Board had been unreasonable in bringing the disciplinary proceedings against Dr Wong, there could be no reason for departing from the default position that each party bear its own costs.
It also noted the Board has a statutory responsibility to protect the public and, although unsuccessful in the outcome sought, this of itself was insufficient to warrant an order of costs in a proceeding where the starting point in determining costs was that "parties bear their own costs".
The Court of Appeal acknowledged that given the serious nature of Dr Wong's sexual misconduct, the Board's concerns for the public in the case were "clearly reasonable".
The decision in Wong confirms that absent unreasonableness by the Board in referring the proceedings against Dr Wong or a successful challenge to the grounds of referral, there was no basis for QCAT to depart from the position that each party is to bear their own costs. It also confirms that a rejected offer will not of itself give rise to a departure from the default costs position.
While the award of costs in QCAT's disciplinary jurisdiction is evolving, the Board maintains its statutory obligation to uphold the standards of the profession by ensuring that only those practitioners who are suitably trained and qualified are registered to practice.
Tara Evans | Lawyer
+61 7 3456 5111
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(1)
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