Consideration
50 The arguments raised by the appellant condense to issue of whether the appellant in truth and reality owes any debt to the Medical Board of Australia. The question is whether the decision made by QCAT that the appellant pay the Medical Board of Queensland's costs could properly have evolved into the order of the District Court that the appellant pay the assessed costs to the Medical Board of Australia. The answer must be found by examining the transitional provisions of the relevant legislation.
51 On 1 July 2010 the new national legislative scheme for the accreditation, registration and discipline for certain health professionals, including medical practitioners, commenced. In Broadbent v Medical Board of Queensland at 464 [108] - 472 [149], Greenwood J gives a detailed explanation of the development, implementation and operation of that scheme.
52 The Parliament of Queensland enacted two significant pieces of legislation as part of its adoption of the national scheme. As I have indicated, the Health Practitioner Regulation National Law Act applied the National Law (Qld) as a law of Queensland. The Health Legislation (Health Practitioner Regulation National Law) Amendment Act ("the Amendment Act") made administrative and consequential amendments to various pieces of Queensland legislation, including the Professional Standards Act, to give effect to the national scheme. The Professional Standards Act has since been repealed, but that does not affect this appeal.
53 Both the National Law (Qld) and the Professional Standards Act as amended included transitional provisions dealing with disciplinary proceedings which had been commenced but not completed by 1 July 2010. The transitional provisions in the National Law (Qld) are expressed at some level of generality since they are part of a uniform national law, but the transitional provisions in the Professional Standards Act were more specific to Queensland's circumstances. The interaction between the provisions gives rise to some difficulty in understanding and interpreting the transitional scheme operating in Queensland.
54 Pursuant to s 173 of the Professional Standards Act, the Medical Board of Queensland was a party to the disciplinary proceeding before QCAT. However, the statute under which the Medical Board of Queensland was established, the Medical Practitioners Registration Act, was repealed by s 123 of the Amendment Act on 1 July 2010. Ordinarily, that would suggest that the Medical Board of Queensland was abolished on that date. However, the transitional provisions have been held to have the effect of preserving the existence of the Medical Board of Queensland and retaining that Board as a party to the QCAT proceedings.
55 Section 289 of the National Law (Qld) provides, relevantly:
(1) This section applies if, immediately before the participation day for a participating jurisdiction, a local registration authority for the jurisdiction had started but not completed dealing with a complaint or notification about a person registered in a health profession by the authority.
(2) From the participation day -
(a) the complaint or notification is taken to be a notification made under this Law and is to be dealt with by the National Board for the health profession; and
(b) the notification is to continue to be dealt with under the Act of the participating jurisdiction under which it was made, and any proceedings or appeal relating to the notification may be dealt with, as if that Act had not been repealed.
(3) For the purposes of this section, the Act of the participating jurisdiction applies -
(a) as if a reference to the local registration authority were a reference to the National Board; and
(b) with any other changes that are necessary or convenient.
(4) The National Board must give effect to a decision made on an inquiry, investigation, proceeding or appeal completed under the Act of the participating jurisdiction as if it were a decision under this Law.
56 Section 405N of the Professional Standards Act provided, relevantly:
(1) This section provides for the application of the National Law (Queensland), section 289 to the following -
(a) an existing complaint;
(b) any proceedings or appeal relating to an existing complaint.
(2) The National Law (Queensland), section 289 applies to a this Act existing complaint, and any proceedings or appeal relating to a this Act existing complaint, as if the reference in subsection (2)(b) of that section to the application of an Act of a participating jurisdiction as if that Act had not been repealed included, for the complaint, a reference to the application of this Act as if it had not been amended by the amending Act.
(3) For applying the National Law (Queensland), section 289 to a complaint made to a former board -
(a) the board does not complete dealing with the complaint until -
(i) the time for exercising any review rights or appeal rights in relation to the complaint has passed without any rights being exercised; or
(ii) any review or appeal in relation to the complaint has ended; and
…
complaint means -
(a) a complaint under this Act as in force before the commencement; or
…
existing complaint means a complaint about a person registered in an NRAS health profession by a former board that the former board had started but had not completed dealing with immediately before the commencement.
57 As to s 289 of the National Law (Qld), ss 5 and 31 indicate that "National Board for the health profession" is the Medical Board of Australia. The Medical Board of Queensland is, by the application of s 250, a "local registration authority". A "notification" includes a reference to QCAT and its predecessor, the Health Practitioners Tribunal.
58 The reference to "the Act of the participating jurisdiction under which [the notification] was made" in s 289(2)(b) is to the Professional Standards Act. Section 405N(2) of the Professional Standards Act requires that s 289(2)(b) must be read as if it says "is to be dealt with, as if [the Professional Standards Act] had not been repealed or amended".
59 Therefore, the effect of s 289(2) of the National Law (Qld) is that where a proceeding was started before 1 July 2010, but QCAT had not completed dealing with the notification by that date:
The notification is taken to be a notification under the National Law (Qld).
The Medical Board of Australia is to deal with the notification.
However, the notification is otherwise to continue to be dealt with under the Professional Standards Act as if it had not been amended by the Amendment Act.
60 Section 289(3) also refers to the Professional Standards Act as if it had not been amended. The Professional Standards Act allowed a "registrant's board" to start and conduct disciplinary proceedings against its registrants. The expression "board" was defined, prior to the amendments, to include the Medical Board of Queensland. The effect of s 289(3)(a) is that the references in the Professional Standards Act to a "registrant's board" are taken to include the Medical Board of Australia.
61 It is arguable that the Medical Board of Queensland ceased to exist from 1 July 2010 when the Medical Practitioners Registration Act was repealed and that the Medical Board of Australia was taken to replace the Medical Board of Queensland in uncompleted proceedings before QCAT: see, for example, the Explanatory Notes for cl 123 of the Health Legislation (Health Practitioner Regulation National Law) Amendment Bill 2010 (Qld) and s 405P and the definition of "former board" in the Professional Standards Act.
62 However, the Medical Board of Australia submits that the effect of s 289 of the National Law (Qld) and s 405N(3)(a) of the Professional Standards Act is that the Medical Board of Queensland remains in existence and that it continues to be a party to disciplinary proceedings and continues to deal with the complaint until all appeals are completed. The appellant initially submitted that the Medical Board of Queensland ceased to exist on 1 July 2010, but then resiled from that submission. The parties' final positions are consistent with the judgment of Greenwood J in Broadbent v Medical Board of Queensland, where his Honour said at 469:
139 The Medical Board of Queensland remained the applicant before QCAT in relation to the questions of penalty and costs. Those matters were the subject of QCAT's decision on 2 September 2010.
…
143 The effect of Division 5 (and, in particular, s 405N) of the Part 13 "Transitional provisions" of the [Professional Standards] Act is to vest the continuing responsibility to deal with an existing complaint not completed prior to 1 July 2010 in the Medical Board of Queensland.
144 The operation of s 405N(2) of the [Professional Standards] Act has the effect that s 289(2)(b) of the National Law is to be read such that the notification continues to be dealt with under the [Professional Standards] Act (and any proceedings or appeal relating to the notification may be so dealt with), as if the [Professional Standards] Act had not been amended by the Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 (Qld). This provision is designed to save the powers granted to the Medical Board of Queensland under the [Professional Standards] Act prior to 1 July 2010 in respect of an existing, uncompleted complaint commenced under the [Professional Standards] Act. Section 405N(3) seeks to make that position more plain by providing that in applying s 289 of the National Law to a complaint made to a former Board, the Board (being the Medical Board of Queensland) does not "complete dealing" with the complaint until the exhaustion of the circumstances set out in s 405N(3)(a)(i) and (ii).
145 Although the drafting of the provisions is a little clumsy in its phrasing, the combined operation of s 289 of the National Law as adopted by the National Law Act and s 405N of the [Professional Standards] Act is that the Medical Board of Queensland continues to be responsible for the carriage of the disciplinary proceedings against Mr Broadbent concerning Mrs MacLeod and Mrs Pearce and any subsequent appeals arising from those proceedings after 1 July 2010 and is to conduct those disciplinary proceedings in accordance to the [Professional Standards] Act as it existed prior to 1 July 2010.
146 In short, the transitional provisions continue to engage the Medical Board of Queensland in respect of notifications prior to 1 July 2010 until those proceedings are completed according to the exhaustion factors described in those provisions.
63 The effect of these passages is that the Medical Board of Queensland continued in existence and remained a party to the QCAT proceeding after 1 July 2010. Neither party submitted that QCAT had no power to make its costs decision in favour of the Medical Board of Queensland. I will proceed on the basis that QCAT did have that power.
64 QCAT's decision that the appellant pay part of the costs of the Medical Board of Queensland could only create a liability in the appellant to pay the assessed costs to the Medical Board of Australia if that was the consequence of a transitional provision in the National Law (Qld) or the Professional Standards Act or some other legislation.
65 Section 295 of the National Law (Qld) provides, relevantly:
(1) From the transfer day for a participating jurisdiction -
(a) the assets and liabilities of a local registration authority for a health profession in a participating jurisdiction are taken to be assets and liabilities of the National Agency and are to be paid into or out of the account kept in the Agency Fund for the National Board established for the profession; and
66 Section 208 of the National Law (Qld) provides for the establishment and administration of the Agency Fund:
(1) The Australian Health Practitioner Regulation Agency Fund is established.
(2) The Agency Fund is to have a separate account for each National Board.
(3) The Agency Fund is a fund to be administered by the National Agency.
67 Section 209 of the National Law (Qld) provides, relevantly:
(1) There is payable into the Agency Fund -
(a) all money appropriated by the Parliament of any participating jurisdiction or the Commonwealth for the purposes of the Fund; and
(b) all fees, costs and expenses paid or recovered under this Law; and
…
(g) any other money or property received by the National Agency or a National Board in connection with the exercise of its functions.
(2) Any money paid into the Agency Fund under subsection (1) for or on behalf of a National Board must be paid into the Board's account kept within the Agency Fund.
68 QCAT made its decision that the appellant pay part of the costs of the Medical Board of Queensland on 22 October 2010, after the transfer day of 1 July 2010. It is not disputed that the liability of the appellant to pay those costs was an asset of the Medical Board of Queensland. Accordingly, the asset became an asset of the National Agency pursuant to s 295 of the National Law (Qld). Any costs recovered will have to be paid into the account for the Medical Board of Australia kept within the Agency Fund.
69 The appellant accepts that the District Court could validly have made orders that the Medical Board of Queensland's costs be assessed and that the appellant pay the assessed costs to the Medical Board of Queensland. The appellant accepts that such costs if paid will become an asset of the National Agency and that either the National Agency or the Medical Board of Australia is entitled to enforce the order. However, the appellant argues that there was no basis for the District Court to order that he pay the assessed costs to the Medical Board of Australia.
70 I have inferred that QCAT's costs decision must have been filed in the District Court. Under s 255(4) of the Professional Standards Act, that decision became an order of the District Court when it was filed. The bankruptcy notice did not rely upon that order. Instead, the bankruptcy notice was founded upon the order made by the Deputy Registrar on 14 January 2014 that the appellant pay the Medical Board of Australia's costs assessed at $387,862.17.
71 As the Deputy Registrar did not provide reasons, it is unclear why the order was made in favour of the Medical Board of Australia when QCAT's order had been made in favour of the Medical Board of Queensland.
72 The filing of QCAT's decision in the District Court must have been the starting point leading to assessment of the costs. Rule 661(4) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") provides that unless an order is filed, the order may not be enforced under Chapter 19 or by any other process. QCAT's costs decision could not have been assessed in accordance with the procedure under Chapter 17 of the UCPR unless QCAT's order was filed.
73 Rule 705 of the UCPR provides, relevantly:
(1) A party entitled to be paid costs must serve a costs statement in the approved form on the party liable to pay the costs.
74 There is evidence that the appellant was served with a costs statement. Then, on 20 February 2013, a Deputy Registrar made the order that the costs statement be assessed pursuant to r 708 of the UCPR and that Mr Bloom be appointed as Costs Assessor.
75 Rule 708 provides, relevantly:
(1) This rule applies if -
(a) a party served with a costs statement does not serve a notice of objection under rule 706; and
(b) the party who served the costs statement files an application for a costs assessment under rule 710.
(2) On the filing of the application, the registrar must appoint a costs assessor to assess costs under this rule.
(3) The costs assessor must, on proof that the costs statement was served on the party liable for the costs -
(a) assess the costs without considering each item and by allowing the costs claimed in the costs statement; and
(b) issue a certificate of assessment.
76 The appellant did not serve a notice of objection pursuant to r 706. The application for the costs assessment under r 710 is not in the evidence before this Court. Rule 710 provides, relevantly:
(1) This rule applies to a party -
(a) who has served a costs statement under rule 705;
…
(1A) The party may, not less than 21 days after service of the costs statement, apply for a costs assessment.
77 Rule 737 requires the Costs Assessor to certify the amount payable and by whom and to whom the amount is payable and to file the certificate in the Court. The certificate filed by Mr Bloom indicated that the costs were assessed at $387,862.17 and were payable by the appellant to the Medical Board of Australia.
78 Rule 742 allows a party dissatisfied with a decision included in a Costs Assessor's certificate of assessment to apply to the Court to review the decision. No such application was made by the appellant.
79 Rule 740 provides, relevantly:
(1) After a certificate of assessment is filed, the registrar of the court must make the appropriate order having regard to the certificate.
(2) The order takes effect as a judgment of the court.
80 The Deputy Registrar made the order on 14 January 2014 that the appellant pay the Medical Board of Australia's costs assessed at $387,862.17. That order took effect as a judgment of the District Court. That order founded the bankruptcy notice.
81 Rule 705(1) allows a "party entitled to be paid costs" to serve a costs statement on the party liable to pay the costs. Although QCAT made its order in favour of the Medical Board of Queensland, the costs statement must have been served on the appellant by the Medical Board of Australia. I draw that inference from the fact that the Deputy Registrar's order of 20 February 2013 named the Medical Board of Australia as the applicant; and because that Board submitted that, pursuant to s 405N(3) of the Professional Standards Act, the functions of the Medical Board of Queensland were at an end by that time.
82 Rule 708(2) provides that "[o]n the filing of the application, the registrar must appoint a costs assessor to assess costs". Rule 708 cannot be construed such that a party is entitled to an order appointing a costs assessor merely because it has served a costs statement. Rule 708 applies if, relevantly, "the party who served the costs statement files an application for a costs assessment under rule 710". Rule 710 applies to a party who has served "a costs statement under rule 705"; while r 705 allows only a party entitled to be paid costs to serve a costs statement. I consider that the Registrar cannot make an order under r 708 or r 710 on the application of an entity which is not a "party entitled to be paid costs" within r 705.
83 The Costs Assessor certified that the costs were payable to the Medical Board of Australia. Rule 740(1) provides that after the certificate of assessment is filed, "the registrar of the court must make the appropriate order having regard to the certificate". The parties concur that the Registrar is not bound to make an order in accordance with the certificate. Rather, the Registrar must make "the appropriate order". It seems to me that the words of the provision were cast such that the Registrar would have some power to depart from the certificate of the Costs Assessor. Otherwise, the Registrar will be bound to make an order, which would take effect as a judgment of the Court, even where there is a patent error in the certificate. It is unlikely that the legislative intention is to effectively give judicial power to the Costs Assessor. It could not be "appropriate" to order that a person pay costs to a party which is not entitled to be paid those costs.
84 The question that arises is whether the Medical Board of Australia was a "party entitled to be paid costs" for the purposes of rr 705, 708, 710 and 740 of the UCPR.
85 The Medical Board of Australia was not a party to the QCAT proceeding and was not named as a party in QCAT's decision that took effect as an order of the District Court when filed. QCAT's decision did not, on its face, require the appellant to pay any costs incurred by the Medical Board of Australia.
86 The Medical Board of Australia submits that in accordance with s 289(2)(a) of the National Law (Qld), it was required to "deal with" any proceedings relating to the complaint once the the Medical Board of Queensland had "complete[d] dealing with the complaint" within the meaning of that expression in s 405N of the Professional Standards Act. The Medical Board of Queensland had completed dealing with the complaint when the Court of Appeal refused leave to appeal, or, at the latest, after the period for an appeal against the judgment of Greenwood J had ended. The Medical Board of Australia also relies on s 289(4) which requires it to give effect to a decision made on a proceeding completed under the National Law (Qld). It submits that the reference in s 255(2) of the Professional Standards Act to "the board" must be taken to be a reference to the Medical Board of Queensland. The Medical Board of Australia submits that these provisions entitled it to seek assessment of the costs awarded in favour of the Medical Board of Queensland. It then submits that "the costs assessed were taken to be the costs of the MBA, which was appropriate".
87 There is a gap in this reasoning. While it may be accepted that it was part of the functions of the Medical Board of Australia to seek assessment of the costs in the District Court, that does not explain why it is "[a] party entitled to be paid costs" for the purposes of rr 705, 708, 710 and 740 of the UCPR. The appellant accepts that the Medical Board of Queensland was entitled to an order that it be paid the costs. It may well be, alternatively, that the National Agency was entitled to such an order. However, no statutory provision has been identified that entitled the Medical Board of Australia to an order that it be paid the costs.
88 There may be a relationship of trustee and beneficiary between the National Agency and the Medical Board of Australia respectively in respect of the property of the Medical Board of Queensland. However, no submission was advanced that any such relationship allowed the Deputy Registrar to order that the costs be paid to the Medical Board of Australia.
89 I consider that there was no legislative basis for the Deputy Registrar to make the order of 20 February 2013 in favour of the Medical Board of Australia appointing a costs assessor under r 708 of the UCPR. In addition, there was no legislative basis for the Deputy Registrar to make the order of 14 January 2014 that the appellant pay a sum of money to the Medical Board of Australia. I emphasise that I do not intend any criticism of the Deputy Registrars, who did not have the benefit of the submissions belatedly made in this appeal.
90 I will now consider the question of whether the appellant should be granted leave to rely upon his argument that the Court should go behind the order of the Deputy Registrar of 14 January 2014 to find that in truth and reality he owed no debt to the Medical Board of Australia. In Reece v Webber (2011) 192 FCR 254, the Full Court said at 258-259 [11]:
It may readily be accepted that in "exceptional circumstances" a new argument may be raised on appeal: Dart Industries Inc v Décor Corporation Pty Ltd (1989) 15 IPR 403 at 416 per Lockhart J (Jenkinson and Gummow JJ concurring). Ordinarily, it "is elementary that a party is bound by the conduct of his case": University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ. To allow too readily the running of new points on appeal, however, may undermine the appellate process by rendering the trial process almost irrelevant: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [19] per French J (as His Honour then was). But leave to raise a new argument may be permitted where it is "expedient in the interests of justice to do so": VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ.
91 The explanation as to why the new argument was not taken before the primary judge seems to be that it was not thought of. Any prejudice to the Medical Board of Australia can be ameliorated to some extent by fashioning appropriate orders as to costs. Given that the argument now sought to be made by the appellant has merit, I consider that it is expedient in the interests of justice to allow the appellant to raise the new argument.
92 The order of the District Court of 14 January 2014 was not the result of a contested hearing. Although the appellant did make submissions to the Costs Assessor, no submissions were made to the Deputy Registrar who made the order. The position is analogous to a default judgment. Where a judgment is obtained by default, a court in bankruptcy will more readily look behind the judgment than if the judgment were obtained following a hearing on the merits: Wolff v Donovan (1991) 29 FCR 480 at 486. There are substantial reasons for questioning whether behind the order of the District Court there is in truth and reality a debt due to the Medical Board of Australia.
93 However, the Medical Board of Australia argues that as the order is an order of an inferior court it remains in force unless and until set aside. It submits that the Court should only go behind the judgment if there is jurisdictional error, and that there is no jurisdictional error in this case, relying upon Craig v South Australia (1995) 184 CLR 163 at 177-178, 179-180. The appellant argues that the question is whether in truth and reality a debt is owed by the appellant to the Medical Board of Australia. It submits that the question of whether the error committed by the Deputy Registrar is jurisdictional or not is irrelevant to that issue.
94 In Corney v Brien (1951) 84 CLR 343, Fullagar J cited the following observations by Lindley LJ in Ex parte Lennox; Re Lennox (1885) 16 QBD 315 at 329:
The court will not allow bankruptcy proceedings to be had recourse to for the purpose of enforcing debts which are fictitious, and not real, even although they are in the form of judgment debts.
95 Fullagar J continued at 358:
The question whether the judgment is to be reopened or 'gone behind' at all will, of course, often involve some preliminary investigation of the merits of the attack on the judgment. But, when once the court decides that it will 'go behind' the judgment, the cases which I have cited show, in my opinion, that the whole matter is open. When once it is considered proper to 'reopen', the only question will be whether there was, in fact and in law, a debt which could legally found the judgment - whether there was in 'Truth and Reality' an obligation not of record before there was an obligation of record. If the case should be one of those rare cases (I have not actually found one in the Reports since 1888, when Fry LJ said that he knew of none) where it is legitimate to 'go behind' a judgment entered after trial in court, there would be, I think, no alternative but to re-try the whole case. The matter to be decided is the existence or non-existence of a debt antecedent to the judgment. It has been said on several occasions that the judgment is prima facie evidence of the antecedent debt. But, when once the inquiry is undertaken, I think that the ultimate burden of proof rests on the person claiming to be a creditor. As Lord Esher MR said in Re Fraser; Ex parte Central Bank of London… 'The existence of the judgment is no doubt prima facie evidence of the existence of a debt; but still the Court of Bankruptcy is entitled to inquire whether there really is a debt due to the petitioning creditor.'
(Underlining added.)
96 It follows from these passages that the question is whether there was truly a debt owed by the appellant to the Medical Board of Australia before the order of the District Court was made. The Court has no power to set aside the order of another court, but only to prevent the judgment creditor from having recourse to the provisions of the Bankruptcy Act, so that the judgment remains unimpeached and may be enforced by other means: Emerson v Wreckair (1992) 33 FCR 581 at 587-588, per Morling, Neaves and Spender JJ. It does not matter whether or not the making of the order involved jurisdictional error.
97 The Medical Board of Australia also submits that even if the order of the District Court ordering the appellant to pay a sum to it ought not to have been made, the Medical Board of Australia is deemed under s 40(3)(d) of the Bankruptcy Act to be a "creditor who has obtained… a final order" because it is entitled to enforce the final order. It argues that it is entitled to enforce the order because it is required to deal with the proceeding and give effect to the proceeding under ss 289(2) and (4) of the National Law (Qld). It argues that s 40(3)(d) overrides any error in the order of the District Court and the bankruptcy notice should not be set aside.
98 The Medical Board of Australia did not point to any authority supporting its submission. The difficulty with the submission is that s 40(3)(d) does no more than to deem the person entitled to enforce a final order to be a creditor who has obtained a final order for the purposes of s 40(1)(g). Section 40(1)(g) allows such a creditor to serve a bankruptcy notice on the debtor, and non-compliance with a bankruptcy notice may amount to an act of bankruptcy. Section 40(3)(d) does not affect the power of the Court to go behind the order to determine whether there is in truth and reality a debt owing.
99 QCAT decided that the appellant should pay a portion of the costs of the Medical Board of Queensland, such costs to be assessed. The legislation did not operate to create a liability in the appellant to pay the assessed costs to the Medical Board of Australia. In truth and reality, there was no debt owed by the appellant to the Medical Board of Australia antecedent to the order of the District Court of 14 January 2014. It follows that the appeal must be allowed.
100 The appellant has succeeded, but on a basis not argued before the primary judge. I consider that in the circumstance the appellant should bear his own costs of the appeal. The hearing of the appeal commenced on 26 November 2014, but had to be part heard and adjourned because the appellant raised new arguments that had not been foreshadowed in his written submissions. The appellant should pay the Medical Board of Australia's costs of preparation of its further written submissions and the resumed hearing on 6 February 2015. Otherwise, the Medical Board of Australia should bear its own costs of the appeal.
101 I do not propose to disturb the order for costs made against the appellant by the primary judge, given the failure of the appellant to raise in that proceeding the argument upon which he has now succeeded.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.