Health Ombudsman v du Toit [2024] QCA 235

SUPREME COURT OF QUEENSLAND

CITATION: Health Ombudsman v du Toit [2024] QCA 235

PARTIES: HEALTH OMBUDSMAN / (appellant) / v / GEORGE DU TOIT / (respondent)

FILE NO/S: Appeal No 8298 of 2024 / QCAT No 194 of 2022

DIVISION: Court of Appeal

PROCEEDING: Appeal Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT: Queensland Civil and Administrative Tribunal – [2024] QCAT 205 (Judicial Member Dick SC)

DELIVERED ON: 22 November 2024

DELIVERED AT: Brisbane

HEARING DATE: 17 October 2024

JUDGES: Flanagan and Boddice and Brown JJA

ORDER: Appeal dismissed with costs.

CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – where the appellant decided to take disciplinary action against the respondent by imposing conditions on his specialist medical registration, without notice to him – where the respondent sought a review of the appellant’s decision before the Queensland Civil and Administrative Tribunal – where the Tribunal found in the respondent’s favour and set aside the appellant’s decision – where further submissions were filed as to costs – where the Tribunal awarded costs to the respondent – where s 100 of the Queensland Civil and Administrative Tribunal 2009 (Qld) provides that each party usually bears their own costs – where s 102 gives the Tribunal power to make a costs order if the interests of justice require it to make the order – where the appellant contends that the Tribunal erred in awarding costs to the respondent – whether the Tribunal erred / Health Ombudsman Act 2013 (Qld), s 57, s 58, s 59(4), s 94(1)(a)(i) / Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 9(2), s 11, s 17, s 43, s 100, s 102, s 149 / Health Ombudsman v Antley [2016] QCAT 472, considered / Lee v Medical Board of Australia (No 2) [2016] QCAT 321, cited / Marzini v Health Ombudsman (No 4) [2020] QCAT 365, applied / Medical Board of Australia v Wong [2017] QCA 42, considered / Medical Board of Queensland v Heiner [2008] QHPT 001, cited / New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231, considered / Pound v Queensland Building and Construction Commission [2023] QCAT 298, considered / Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, not applied / SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, cited / Tamawood Ltd v Paans [2005] 2 Qd R 101; [2005] QCA 111, considered

COUNSEL: J R Jones, with G F Perry, for the appellant / J R Hunter KC, with C D Templeton, for the respondent

SOLICITORS: McCullough Robertson for the appellant / Moray & Agnew for the respondent

THE COURT: This is an appeal from a decision of a judicial member of the Queensland Civil and Administrative Tribunal in relation to an order for costs. The order of the Tribunal was that the appellant pay the respondent’s costs of the proceedings, on the standard basis to be assessed on the District Court scale.¹
Although the appeal is from an order for costs, the appeal to this Court is as of right provided the appeal is on a question of law. This is the effect of ss 149(2) and 149(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). These sections fall within Chapter 2, Part 8, Division 2 of the QCAT Act, which deals with appeals to this Court. Section 149(2) provides:

“(2)A party to a proceeding (other than an appeal under division 1) may appeal to the Court of Appeal against another decision of the tribunal in the proceeding if a judicial member constituted the tribunal in the proceeding.”

Section 149(3)(b) provides, however, that an appeal under subsection (2) on a question of fact, or a question of mixed law and fact, may be made only if the party has obtained the Court’s leave to appeal.
By its notice of appeal the appellant asserts that the Tribunal committed four errors of law:

Failing to construe or apply ss 100 and 102 of the QCAT Act by reference to the objects of the QCAT Act and the nature and scope of the proceedings.

Reversing the starting point dictated by s 100 of the QCAT Act that there be no order as to costs.

Failing to consider the relevance of the appellant’s statutory function in exercising the costs discretion.

Failing to give adequate reasons.

For the reasons which follow, none of these errors have been established and the appeal should be dismissed with costs.

The Primary Reasons²

The Tribunal was assisted by Professor D Ellwood AO, Medical Practitioner Panel Member; Dr W Grigg, Public Panel Member; and Professor D Morgan OAM, Medical Practitioner Panel Member. Before the Tribunal, the respondent sought a review of the appellant’s decision of 27 June 2022 to take immediate registration action against the respondent pursuant to s 58 and s 59(4) of the Health Ombudsman Act 2013 (Qld) (“HO Act”) by imposing conditions on the respondent’s registration as a specialist in gynaecology and obstetrics.
The respondent had commenced as the Clinical Director of Obstetrics and Gynaecology at Mackay Base Hospital on 28 September 2020. On 13 October 2021, he was suspended from his employment and on the same date, the Office of the Health Ombudsman received the first of a series of notifications concerning the respondent’s performance. He formally resigned in March 2022.³ Subsequently, the appellant received information that the respondent had been acting without restriction as a surgeon in New South Wales and was seeking employment at another hospital.⁴ The respondent’s review application was filed on 25 July 2022. Prior to filing this application, the respondent had proposed an extensive regime of conditions. This proposal was not accepted by the appellant.⁵
This immediate registration action was taken on the basis that the appellant had formed the reasonable belief that the appellant posed a serious risk to patients, and that it was necessary to take immediate action to protect public health and safety. This belief was based on a report of Dr Woodward, which had been received by the Office of Health Ombudsman on 21 June 2022.⁶
The hearing before the Tribunal involved five days of oral testimony from the respondent, his expert Dr Garland, Dr Woodward for the appellant, as well as 12,000 pages of evidence. Both parties were represented by senior and junior counsel.
The Tribunal noted that Dr Woodward was initially critical of the respondent’s performance in relation to fifteen patients. In a number of those cases, however, the respondent was not the surgeon involved and had only assisted. This was noted by the Tribunal as being a matter of concern.⁷ The Tribunal further noted that the appellant elected not to deal with seven of the fifteen cases in which Dr Woodward had been critical of the respondent’s performance.

“[129]The evidence material before the Tribunal, on careful scrutiny, does not lead the Tribunal to the view that because of his conduct or performance, the [respondent] poses a serious risk to persons. The landscape of the matter has changed significantly since the Health Ombudsman’s decision and on this de novo hearing, the Health Ombudsman’s decision is set aside. However, it is the Tribunal’s view that there are concerns conceded by the [respondent] in two areas:

notetaking; and

his leadership capability.

[130]Neither of these issues pose a serious risk to patients. In relation to the latter, the [appellant] has already taken steps to address it.

[131]The Tribunal therefore sets aside the Health Ombudsman’s decision of 27 June 2022 and orders that the [respondent] be allowed to return to clinical practice in Queensland.”

Prior to considering the evidence, the Tribunal set out the relevant statutory framework under the HO Act. This framework included the functions of the Health Ombudsman, the main objects of the HO Act and Part 7 of the HO Act which deals with the Health Ombudsman’s disciplinary powers to take immediate registration action. As to the taking of immediate registration action, the Tribunal observed:⁹

“[13]If the Health Ombudsman proposes to take immediate registration action in relation to a registered health practitioner, she must give the practitioner a notice stating the proposed action and invite the practitioner to make a submission about the proposed action.

[14]The Health Ombudsman must have regard to any submissions made by the practitioner before deciding whether to take immediate action.

[15]However, under s 59(4), if the Health Ombudsman is satisfied it is necessary to do so to ensure the health and safety of the individual or the public, the Health Ombudsman may take immediate registration action without complying with those show cause process steps.”

(citations omitted)

As is evident from the Costs Reasons,¹⁰ the Health Ombudsman elected to take immediate action without first complying with the show cause process provided by s 59 of the HO Act.
The Tribunal noted that there were sworn affidavits from numerous colleagues of the respondent attesting to his competence both in relation to his clinical practice and his performance of surgery. The colleagues who swore affidavits included doctors who had worked with the respondent in Western Australia and at the Mackay Base Hospital. Immediately after resigning from the Mackay Base Hospital, the respondent obtained employment with Fiona Stanley Hospital in Perth. As noted by the Tribunal, two of his colleagues from this hospital gave him “glowing references”.¹¹

The Costs Reasons

The Tribunal determined the question of costs on the papers by reference to written submissions filed by the parties. The appellant submitted that the appropriate order for costs was that each party bear their own costs of the proceeding, whereas the respondent sought the costs order that was eventually made.
In the Costs Reasons, the Tribunal referred to the relevant costs provisions of the QCAT Act – ss 100 and 102 – which are discussed below. The Tribunal set out the various factors to which the Tribunal may have regard in considering whether to make an order for costs pursuant to s 102(3) of the QCAT Act. The Tribunal’s reasons in relation to these factors are considered below in the context of Ground 4.
In exercising its discretion to order that the appellant pay the respondent’s costs, the Tribunal made reference to two authorities: Marzini v Health Ombudsman (No 4)¹² and Tamawood Ltd v Paans.¹³ These authorities, together with other authorities, are discussed below in relation to Grounds 1 and 2.
The Tribunal’s finding in relation to the issue of costs was as follows:¹⁴

“[22]In this case, the [respondent] was entitled to legal representation to assist him to litigate a complex matter. He was successful. There can be no criticism of him for pursuing his rights and despite the spirited defence of the [appellant’s] decision up to and including the Tribunal hearing, I cannot find the countervailing considerations sufficient to say it is not in the interest of justice to award the applicant costs.”

The proper construction of ss 100 and 102 of the QCAT Act (Grounds 1 and 2)

Grounds 1 and 2 raise for consideration the proper construction of ss 100 and 102 of the QCAT Act. These sections fall within Chapter 2, Part 6, Division 6 which deals with costs. Section 100 provides:

“100 Each party usually bears own costs

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.”

Section 102 provides:

“102 Costs against party in interests of justice

The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.

However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.

In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—

whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);

the nature and complexity of the dispute the subject of the proceeding;

the relative strengths of the claims made by each of the parties to the proceeding;

for a proceeding for the review of a reviewable decision—

whether the applicant was afforded natural justice by the decision-maker for the decision; and

whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;

the financial circumstances of the parties to the proceeding;

anything else the tribunal considers relevant.”

The language of ss 100 and 102 is to be construed in the context of the QCAT Act as a whole. As observed by Gageler J (as the Chief Justice then was) in SZTAL v Minister for Immigration and Border Protection:¹⁵

“The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility ‘if, and in so far as, it assists in fixing the meaning of the statutory text’.”

(citation omitted)

An important contextual consideration in construing s 100 is that the Tribunal, in the exercise of its jurisdictions, deals with a multiplicity of matters which vary in nature, both in terms of complexity and the seriousness of outcomes. By s 9(2) of the QCAT Act, the Tribunal is conferred with original, review and appeal jurisdiction. The original jurisdiction is that conferred by s 11 and an enabling Act.¹⁶ Section 11 confers jurisdiction to hear and decide “minor civil disputes", which is a defined term encompassing a claim to recover a debt or liquidated demand of money of up to the prescribed amount; a claim for damage to property caused or arising from the use of a vehicle; tenancy matters; matters concerning the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011; and matters in relation to which a person may, under the Building Act 1975, Chapter 8, Part 2A apply to the Tribunal for an order.
Section 17 confers review jurisdiction in circumstances where such jurisdiction is conferred by an enabling Act for the Tribunal to review a decision made or taken to have been made by another entity under that Act.
When s 100 is construed in this context, it is a provision of general application which is to be applied to a multiplicity of matters that fall within the Tribunal’s jurisdiction.
Section 100, by providing that each party must bear its own costs, also reflects the established difference between court proceedings and proceedings conducted before a tribunal. Rule 681 of the Uniform Civil Procedure Rules 1991 (Qld) (“UCPR”), for example, provides that costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise. That is, in court proceedings, a successful party would ordinarily be entitled to an order that the unsuccessful party pay their legal costs.
One of the objects of the QCAT Act is to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick: s 3(b). Apart from s 100, another means of achieving this object is s 43 of the QCAT Act, which limits a party’s right to representation. Section 43(1) provides that the main purpose of the section is to have parties represent themselves unless the interests of justice require otherwise. Section 43(1) uses similar language to s 102(1); namely, “the interests of justice require”. Section 43 provides for a number of qualifications to the general rule that parties represent themselves. A consideration of these qualifications assists in construing ss 100 and 102 in their proper context. Although s 43(2)(b) deals with representation, and ss 100 and 102 deal with costs, both subject matters are, as a matter of logic, linked.

“(2)In a proceeding, a party––

…

may be represented by someone else if––

the party is a child or a person with impaired capacity; or

the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or

an enabling Act that is an Act, or the rules, states the person may be represented; or

the party has been given leave by the tribunal to be represented.”

Schedule 1 of the HO Act defines “disciplinary proceeding” to mean a proceeding for which QCAT has jurisdiction under s 94(1) or (2). Section 94(1)(a)(i) of the HO Act gives QCAT jurisdiction to review a decision of the Health Ombudsman to take immediate registration action in relation to a registered health practitioner, other than action to accept an undertaking from the practitioner. The term used in s 94 “immediate registration action” is defined in s 57 of the HO Act to mean imposing a condition on the practitioner’s registration. This is what occurred in the present case. It follows that as the proceedings before QCAT constituted a review of a decision about taking disciplinary action, both parties, pursuant to s 43(2)(b)(ii) of the QCAT Act, were entitled to be represented. This express qualification to the general rule in s 43(1) recognises the serious nature of disciplinary action, which may not only concern matters of public interest and safety, but also has the potential to affect a person’s professional standing, reputation and finances.
Where there is no such express entitlement to representation, a party may be represented where the Tribunal grants leave. The circumstances relevant to a grant of leave are stated in s 43(3):

“(3)In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave––

the party is a State agency;

the proceeding is likely to involve complex questions of fact or law;

another party to the proceeding is represented in the proceeding;

all of the parties have agreed to the party being represented in the proceeding.”

In the present case, even if the respondent did not have an express right to be represented under s 42(2)(b)(ii), the circumstances identified in s 43(3)(a) and (b) would have supported a grant of leave pursuant to s 43(3). Schedule 3 of the QCAT Act relevantly defines “State agency” to mean a statutory authority or another entity established under an Act or the holder of a statutory office. Schedule 1 of the HO Act defines “Health Ombudsman” to mean the Health Ombudsman appointed under s 245, which provides that the Health Ombudsman is to be appointed by the Governor in Council. Not only is the Health Ombudsman a State agency, it was accepted by the Tribunal and agreed by the parties, that the matter was complex.
Sections 100 and 102 should therefore be construed in the context that s 43(2) gives to a limited class of persons, including parties involved in disciplinary action, an entitlement to be represented.
Another important consideration in construing ss 100 and 102 is that the usual rule in s 100 is made subject to other provisions of the QCAT Act by use of the words “[o]ther than as provided under this Act”. The usual rule in s 100 is therefore expressly made subject to s 102. Section 102 gives to the Tribunal a discretion to make a costs order other than that contemplated by s 100. The discretion under s 102(1) is wide. The fact that there is a discretion is indicated by the use of the word “may”. The width of the discretion is apparent from the use of general terms such as “if the Tribunal considers” and “the interests of justice require”. With respect to what constitutes “the interests of justice”, this will vary according to the circumstances of each case. As it has been judicially considered, however, the term is capable of wide application.¹⁷
While the meaning of the term “interests of justice” has not been considered in relation to circumstances analogous to the present case, the case law has discussed it in other contexts.
In Deputy Commissioner of Taxation v Shi,¹⁸ the High Court considered whether it was in the “interests of justice” that information, which was protected by the privilege against self‑incrimination, should be disclosed. Chief Justice Kiefel, Gageler and Gleeson JJ observed:¹⁹

“What the interests of justice require in a particular case is to be weighed having regard to the proceeding in which the question arises.”

In Staples v McCall,²⁰ Nygh J considered whether it was in the interests of justice that proceedings should be transferred to the Supreme Court of New South Wales under federal cross-vesting legislation. His Honour observed:

“The question then is, as I have said earlier, what is meant by the interests of justice? Does it mean considerations only relating to fairness and justice as between the parties to the particular proceedings, or does it have a wider connotation which also takes account of the general scheme of the legislation?

It is in this regard I must take account of the preamble to the legislation, and the remarks which were made on the introduction of the legislation in the State and Federal parliaments.”

In Taylor v Minister for Immigration & Multicultural & Indigenous Affairs,²¹ French J (as his Honour then was) considered Order 80 of the Federal Court Rules, which was designed to facilitate the provision of legal assistance to unrepresented litigants before the court where this was in the interests of justice. Justice French, in finding that the rule did not guarantee a right to legal representation, considered that:

“The ‘interests of justice’ is a wide term. It can encompass a circumstance in which, regardless of the merits of his appeal, the significance of the outcome to an appellant and perhaps to third parties such as family members is such that the appellant should be afforded every opportunity to properly present his or her case and should have legal representation for that purpose. That does not mean that if legal representation is unavailable the litigation must come to a halt. It may be that, if in the end, no pro bono practitioner is found who is willing to act then the appellant would have to represent himself.”

One of the meanings of the word “require” in the Macquarie Dictionary (9th ed, 2023) is “calls for”. In Scaniainventor v Commissioner of Patents,²² the Full Federal Court considered s 160(2) of the Patents Act 1952 (Cth), which relevantly provided:

“…

Where, by reason of—

an error or omission on the part of the person concerned or of his agent or attorney; or

circumstances beyond the control of the person concerned,

an act or step in relation to an application for a patent or in proceedings under this Act (not being proceedings in a court) required to be done or taken within a certain time has not been so done or taken, the Commissioner may, upon application by the person concerned, but subject to this section, extend the time for doing the act or taking the step.”

In relation to the word “required”, Fox ACJ, Franki and Northrop JJ observed:

“The word ‘required’ has a wide range of meanings, as reference to the dictionaries and the many decided cases attests.”

The Tribunal may therefore make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party if the Tribunal considers that the interest of justice calls for such an order.
In considering whether the interests of justice require it to make the order, the Tribunal may have regard to the matters stated in s 102(3). Section 102(3) identifies what has been described as “a wide range of circumstances”²³ that may be considered by the Tribunal in determining whether the interests of justice require the making of a costs order contemplated by s 102(1). One of these considerations is the nature and complexity of the dispute the subject of the proceedings: s 102(3)(b). This consideration is not dissimilar to that in s 43(3)(b) relevant to the Tribunal considering whether a person should be granted leave to be represented. The width of what may constitute a relevant consideration for the purposes of an exercise of discretion under s 102(1) is evidenced by the words in s 102(3)(f), “anything else the tribunal considers relevant.”
In construing ss 43, 100 and 102, regard may be had to the extrinsic material with respect to the QCAT Act, as a means of considering the words of the provisions in their context.²⁴
The Explanatory Notes to the QCAT Bill recognised that in order to achieve its policy objective of “[dealing] with matters for which it has jurisdiction”, the Tribunal was granted jurisdiction over a broad range of matters. In conjunction with the cognate Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Provisions Bill 2009, the QCAT Bill sought to amalgamate 18 pre-existing tribunals. Although the Tribunal’s jurisdiction was intended to cover a broad range of tribunals, the extrinsic material emphasised the distinction between the Tribunal’s function in resolving disputes in its original jurisdiction, as opposed to its review jurisdiction. The original jurisdiction was that aimed at resolving “minor civil disputes” between laypersons, while the review jurisdiction was concerned with “reviewing decisions of government agencies and statutory bodies”.²⁵
The extrinsic material also demonstrates that the Tribunal’s objective of conducting proceedings in a way which is “accessible, fair, just, economical, informal and quick”²⁶ is subordinate to the requirement that it “act fairly and according to the substantial merits of the case.” For example, during the second reading speech, the Minister stated:

“The QCAT bill establishes the tribunal and generally sets out its jurisdiction, procedures and membership. The objective is to establish an independent tribunal which deals with matters in a way that is accessible, fair, just, economical, informal and quick. To achieve the objective, the bill requires QCAT to comply with the rules of natural justice and to conduct its proceedings in a manner that is responsive, informal, cost-effective to parties and as expeditious as is consistent with achieving justice and to act fairly and according to the substantial merits of the case.”

(emphasis added)

In the present case, both parties accept that the nature of the review proceedings were complex, such that it necessitated the need for both parties to be represented. In these circumstances, the QCAT Act contemplates a readiness to depart from the general position of minor civil disputes which ordinarily confront the Tribunal, in favour of an approach more aligned with conventional litigation.
This distinction was maintained in respect of the QCAT Bill’s approach to the right to representation. When considering whether the draft legislation complied with the fundamental legislative principle of natural justice, the Explanatory Notes justified the Bill’s general position that representation would not be permitted by noting that it was intended to enable the resolution of disputes in a manner that was accessible, fair, just, economical, informal and quick. However, the Explanatory Notes also recognised that this was the applicable position only in the context of minor civil disputes, stating:²⁹

“A provision generally allowing representation may act as a barrier for many people in that it will tend to make proceedings more expensive. Legal representation may increase the length, formality and technicality of proceedings. The majority of matters before QCAT will be minor civil disputes which are currently dealt with by the Small Claims Tribunal or the Magistrates Court using the simplified procedures for minor debt claims. Representation in these jurisdictions is at the discretion of the Tribunal or not permitted. This is because these jurisdictions are meant to provide people, many of whom could not afford representation, with cheap and expeditious access to justice which may otherwise be beyond their means.”

(emphasis added)

Such considerations do not have as much significance in complex proceedings like the present case.

Instead, the Explanatory Notes recognised that in circumstances where “complex questions of fact and law [are involved] or where another party is represented”, principles of natural justice would require representation to be afforded to parties.³⁰ The types of proceedings listed in s 43(2)(b)(i)–(iii), within which the present case falls, are acknowledged as “types of matters and parties where natural justice would generally require an entitlement to representation”.³¹
The reasoning underlying the structure of s 43 – whereby it denies representation as a general rule but allows it in limited circumstances – was set out as follows:³²

“The approach in clause 43 is considered to be most appropriate as it provides the tribunal with flexibility in the conduct of a diverse range of matters while ensuring parties are afforded procedural fairness.”

Likewise, in the second reading speech, the Minister recognised that the general rule as to representation is directed at the context of informal, minor civil disputes, rather than the more complex proceedings which are the subject of the review jurisdiction. He stated:

“To ensure QCAT remains as informal and as economical as possible, parties will generally represent themselves. However, if the interests of justice or the rules of natural justice require a party to be represented, QCAT will grant leave for the representation. To ensure QCAT is a low-cost jurisdiction, parties must generally bear their own costs unless the tribunal considers it is appropriate in the interests of justice to award costs.”

(emphasis added)

In relation to the costs provisions of the QCAT Bill, the distinction between minor civil disputes and more complicated review proceedings was also emphasised. It was noted in the Explanatory Notes that although a costs order could be made if the Tribunal considered it to be in the interests of justice, the Bill would restrict the amount of costs that could be ordered against a party in a minor civil dispute. The notes stated that this was designed to “ensure that the minor civil disputes jurisdiction remains a low-cost jurisdiction.”³³ These considerations are reflected in s 102(2). Likewise, the Minister noted in the second reading speech that the rule that “parties must generally bear their own costs unless the tribunal considers it is appropriate in the interests of justice to award costs”, was designed to “ensure [that] QCAT is a low‑cost jurisdiction”.³⁴
The above construction of ss 100 and 102 of the QCAT Act is consistent with that adopted by Judicial Member D J McGill SC in Marzini:³⁵

“[36]In my opinion the correct approach to the operations of s 100 and s 102 of the QCAT Act is similar to that formulated by the Hon P Lyons QC in Thompson v Cannon … : The ultimate question posed by the statutory provisions is whether in a particular case the interests of justice require the Tribunal to make a costs order. That is the effect of the terms of the statute. Because of the use in s 102(1) of the word “require”, the default position of no order as to costs should not be too readily departed from. I respectfully agree with the approach of the Hon J B Thomas QC in Lee … to the comments of Keane JA in Tamawood …

[37]I do not consider that there is any justification in the words of the statute for any further constraint on the operation of the power to order costs under s 102, although the section directs attention to a number of matters which may in a particular case be usefully considered. The reference to ‘any other matter the Tribunal considers relevant’ shows that this list is not to be read in a confining sense. One matter which is relevant is that this proceeding is one where there was a right to legal representation.”

In Tamawood Ltd v Paans,³⁶ Keane JA identified three reasons why the Commercial and Consumer Tribunal had erred in failing to award costs:

“[30]First, the Tribunal found that each party was justified in engaging the services of legal representatives to assist them in the conduct and defence of what the Tribunal recognised to be complex proceedings. That finding alone could be, in my view, a sufficient basis to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. The Tribunal erred in failing to appreciate the implication of this finding for an understanding of where the interests of justice lay in relation to the costs of the proceedings.

[31]There will inevitably be occasions when the aspirations of the legislature that parties before the Tribunal should not be legally represented cannot reasonably be met having regard to the nature of the issues involved. That this is so is recognised by the terms of s. 73 which deals with the topic of representation. It provides:

‘73 Purposes of div 7

The main purpose of this division is to have parties represent themselves and save legal costs unless the interests of justice require otherwise.’

[32]If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.

[33]To say this is not to ignore s 71(5)(b) of the Act. There is a clear distinction, in terms of the interest of achieving justice, between the mere fact of having representation and the fact of having reasonably obtained that representation because of the complexity of the case. In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome. … ”

These observations were made by Keane JA in a different but broadly similar statutory context. Sections 70 and 71 of the Commercial and Consumer Tribunal Act 2003 (Qld) relevantly provided:

"70 Purposes of div 7

The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise.

71 Costs

In a proceeding, the [Commercial and Consumer Tribunal] may award the costs it considers appropriate on—

the application of a party to the proceeding; or

its own initiative.

…

In deciding whether to award costs, and the amount of the costs, the tribunal may have regard to the following—

the outcome of the proceeding;

the conduct of the parties to the proceeding before and during the proceeding;

the nature and complexity of the proceeding;

the relative strengths of the claims made by each of the parties to the proceeding;

…

anything else the tribunal considers relevant.

A party to a proceeding is not entitled to costs merely because—

the party was the beneficiary of an order of the tribunal; or

the party was legally represented at the proceeding.”

Unlike s 100 and 102 of the QCAT Act, these provisions did not expressly provide for a usual rule that each party bear their own costs subject to a discretion to make a costs order where the interests of justice required such an order to be made.

There is a further qualifying observation that should be made in relation to Keane JA’s statements in Tamawood. In Health Ombudsman v Antley,³⁷ the Hon J B Thomas QC noted that Tamawood was a commercial building case and that different considerations may apply to a question of costs in disciplinary proceedings:

“[63]The main objectives and guiding principles of the disciplinary acts governing health providers, are to provide for the protection, health and safety of the public (see more fully s 3 and s 4 of the National Law, and HO Act, s 4). An express object of the QCAT Act is ‘to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick’. Section 4 mandates that the Tribunal must ‘ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice’.

[64]Different factors may well operate in commercial litigation to make it in the interests of justice to order costs against the losing party to those in cases in the disciplinary jurisdiction concerning health workers. The objectives of the two classes of litigation are entirely different, and so too may be the criteria that help to determine whether it is in the interests of justice to make a costs order.”

In relation to Ground 1, the appellant asserts that the Tribunal failed to have regard to the objects of the QCAT Act and the nature and scope of the proceedings, as a necessary aspect of the task of applying ss 100 and 102 of the QCAT Act. The complaint in relation to Ground 2 is that by considering whether there were countervailing considerations sufficient to say that it was “not” in the interest of justice to award costs, the Tribunal failed to give sufficient recognition to the starting point provided in s 100 that each party bear their own costs.
In support of these submissions, the appellant, in addition to Marzini, refers to three authorities: Medical Board of Australia v Wong,³⁸ Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2),³⁹ and Pound v Queensland Building and Construction Commission.⁴⁰
In Medical Board of Australia v Wong, the Board appealed against the Tribunal’s order requiring the Board to pay Dr Wong’s costs of the proceeding, in part upon an indemnity basis. The issue on appeal was whether, in making the costs order, the Tribunal erred in exercising its discretion under s 102 of the QCAT Act. Philip McMurdo JA (with whom Morrison JA and Mullins J agreed) found that the Tribunal had erred. One of the primary considerations identified by his Honour was that under s 193 of the Health Practitioner Regulation National Law (Queensland), the Board, if it reasonably believed that Dr Wong had engaged in professional misconduct, was required to refer the matter to the Tribunal. His Honour found that the Tribunal had erred in the exercise of discretion “by not recognising the importance of that mandatory nature of the then s 193 to the question of whether this proceeding had been properly brought”.⁴¹
His Honour further observed:⁴²

“There was no respect in which the Board’s position was identified as unreasonable, in pressing for the conditions which it proposed. Absent any finding of unreasonableness, there could not have been a basis for departing from the default position, according to s 100, that each party bear its own costs.”

The reference to “any finding of unreasonableness” should be understood in the context of his Honour’s previous consideration of the mandatory nature of the Board referring the matter to the Tribunal:⁴³

“If it was to be determined that the Board should pay costs because it had unnecessarily commenced the proceeding, a necessary consideration was whether the Board had been bound to do so.”

In circumstances where, in fulfilling its statutory functions, the Board was bound to refer the matter to the Tribunal and had not acted unreasonably in doing so, his Honour’s conclusion that the Tribunal’s discretion had miscarried was unsurprising. As his Honour observed:⁴⁴

“It must be kept in mind that the Board has a statutory responsibility for the protection of the public in this context and the fact that the outcome was not that which was sought should not of itself burden the Board with an order for costs, especially in a proceeding in QCAT where the starting position is that prescribed by s 100. I would add that the Board’s concern for the protection of the public in the present case was clearly reasonable from Dr Wong’s very serious misconduct in 2012.”

The Court’s decision in Wong simply confirms that the usual rule is as provided in s 100; namely, that each party bear their own cost. Wong is therefore of limited assistance. As correctly explained by Judicial Member D J McGill SC in Marzini (in relation to Wong):

“[29] There was in the judgment of the Court no discussion of the authorities on the application of s 100 and s 102 of the QCAT Act, or analysis of the terms of the sections, although the Court did identify that for each party to bear its own costs was the default position under the Act. I do not read the decision as laying down a test for the operation of s 102 in cases generally, that a finding of unreasonableness must be made before an order for costs can be made. That is not the statutory test. I consider that the Court was simply identifying what was seen as an error in the Tribunal’s reasoning, in the circumstances of that case.”

In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2*)*,⁴⁵ the then President of QCAT, Alan Wilson J, awarded costs in favour of the respondent body corporate against two individuals who purported to represent the applicant company, in circumstances where a receiver and manager had been previously appointed to that company and had not consented to nor authorised the proceedings. The respondent body corporate’s application for costs therefore not only raised questions about the Tribunal’s discretion to award costs in a proceeding, but also the discretion to order costs against persons claiming to represent a corporation, and non-legal representatives of a party, and whether costs should be awarded on an indemnity basis.⁴⁶
In the present case, the appellant relies on the following observation of Alan Wilson J in Ralacom:

“[29]Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.”

There are a number of difficulties with the appellant’s reliance on this passage. These difficulties were identified by Judicial Member D J McGill SC in Marzini, as follows:⁴⁷

“The formulation of A Wilson J has subsequently been widely accepted as stating the correct approach to these provisions, but the wording is curious. There is nothing in the terms of s 100 to show a ‘strong contra-indication’ against costs orders. Leaving aside the reference to a provision of another Act, when s 100 and s 102 are read together, the position is that no order for costs is to be made unless the Tribunal considers the interests of justice require it to do so. This is in essence the interpretation attributed to the terms of the earlier Act in Tamawood at [28]. The QCAT Act provisions could have been drafted to entrench that approach. The terms of the sections make it clear that the starting point is that no order for costs is to be made, but authorises a costs order if the interest of justice require it. The use of the word ‘require’ suggests that the interests of justice must clearly support a costs order; but to say that they must do so ‘compellingly’, and to treat s 100 as having ‘a strong contra-indication against costs orders’, is to read into the statutory discretion restrictions which are not based on the terms of the Act.”

(citations omitted)

With respect, the Court agrees with these observations.⁴⁸

The appellant submits that the Tribunal erred in failing to construe ss 100 and 102 of the QCAT Act consistently with the approach endorsed in Pound v Queensland Building and Construction Commission.⁴⁹ In Pound, Senior Member Aughterson stated:⁵⁰

“[41]The objects of the QCAT Act, including the issues of access to the Tribunal and the minimisation of costs, provide an appropriate reference point for the operation of s 100 of the QCAT Act and, in that context, may be placed in the balance along with the s 102(3) interests of justice considerations. The interplay between s 100 and s 102(3) may well vary, depending on the impact a costs order in the case at hand might have on access to justice and the other objectives in s 3 of the QCAT Act.

[42]For example, the prospect of an adverse costs order is likely to weigh heavily on any decision to seek review of certain administrative decisions, which will potentially have a significant impact on access to justice. On the other hand, in relation to body corporate disputes involving significant monetary or other considerations, the interests of justice in awarding costs, as alluded to by Keane JA in Tamawood, might weigh heavily in favour of a costs order. In those circumstances, the disincentive of a potential costs order in bringing a matter before the Tribunal is less likely to loom so large and, accordingly, considerations of access to justice might weigh relatively lightly in the balance against a costs order.

[43]On that basis, the underlying concern of s 100, in particular of not impeding access to justice and maintaining a low cost jurisdiction, may simply be placed in the balance along with the s 102(3) considerations, with the weight accorded to it being largely dependent on the nature and scope of the proceedings.

[44]Weighing the s 102(3) interests of justice considerations with the s 100 factor is consistent with what was said by the President of the Tribunal in Magill v Queensland Law Society Inc. In that case Daubney J referred to the s 102(3) factors to which the Tribunal may have regard when considering the interests of justice in a particular case and then stated:

‘These factors, individually and collectively, are not determinative, and go only to informing the exercise of a broad discretion, the touchstone of which remains the Tribunal’s assessment of the interests of justice in a particular case. The discretion to award costs will only be exercised when the interests of justice in a particular case outweigh the prima facie “no costs” position under s 100.’”

(citations omitted)

While it is correct that provisions should be construed consistently with the objects and purposes of an Act, it should not be accepted that the Tribunal, in exercising its discretion under s 102(1) and in considering whether the interests of justice require the making of a costs order, must have specific regard to s 100. This construction does not give effect to the introductory words of s 100, namely “other than as provided under this Act or an enabling Act.” Those words contemplate that a favourable exercise of discretion under s 102(1) will necessarily result in a departure from the usual position as to costs contemplated by s 100. This is simply the consequence of s 100 being made subject to other provisions of the QCAT Act including s 102.
The appellant has failed to establish that the Tribunal erred in either construing or applying ss 100 and 102 of the QCAT Act. As observed above, the proper construction of these sections is consistent with that stated in Marzini which was, in effect, adopted by the Tribunal.⁵¹ The Tribunal’s use of the words “I cannot find the countervailing considerations sufficient to say it is not in the interests of justice to award the [respondent] costs”⁵² must be understood in the context of the proceedings, where both parties were entitled to be represented and the matter was complex.
In the present case, the Tribunal, in exercising its discretion pursuant to s 102(1), had regard to the decision in Marzini as to the proper constructions of ss 100 and 102. It is also evident that the Tribunal considered the nature and scope of the proceedings by having regard to the matters identified in s 102(3).
The appellant has not demonstrated the asserted error that the Tribunal “reversed the inquiry required by ss 100 and 102”.⁵³ As already observed, the Tribunal expressly referred to ss 100 and 102. The Tribunal accepted that what the respondent had to demonstrate was that costs should be ordered in the interests of justice.⁵⁴
Grounds 1 and 2 fail.

Ground 3: Failing to consider the relevance of the appellant’s statutory function

In its written submissions on costs before the Tribunal, under the heading “Anything else the Tribunal considers relevant”, which is a reference to s 102(3)(f) of the QCAT Act, the appellant submitted that there were significant public policy considerations that ought to be taken into account given the appellant’s statutory function. As to the appellant’s statutory function, one of the main objects of the HO Act is to protect the health and safety of the public: s 3(1)(a). Pursuant to s 4(1) of the HO Act, the main principle of administrating the Act is that the health and safety of the public are paramount. This principle is the main consideration for the appellant when deciding what relevant act to take to deal with a complaint: s 4(2)(a).
Before the Tribunal, the appellant referred to Medical Board of Queensland v Heiner where his Honour Judge O'Brien observed:⁵⁵

“It is contrary to the public interest that those responsible for instituting disciplinary proceedings before the Tribunal should be deterred by fear of an adverse costs order.”

The appellant submits that an examination of the Costs Reasons reveals that the Tribunal failed to take into account the appellant’s statutory function and so failed to deal with an important aspect of the appellant’s case.⁵⁶

Both parties correctly accept that in relation to disciplinary proceedings, the statutory function of the decision-maker for the reviewable decision will be a relevant matter for the Tribunal in considering whether the interests of justice require it to make a costs order contemplated by s 102(1).
The precise weight to be given to the decision-maker’s statutory function, however, will vary according to the circumstances of each case. In the present case, for example, both parties were entitled to be represented and both parties agreed that the matter was complex. The proceedings extended over five days with both parties being represented by senior and junior counsel. Unlike Wong, the proceedings for review of the appellant’s immediate registration action were initiated by the respondent. The appellant was not required by statute to refer the matter to the Tribunal. Rather, the appellant chose to mount what the Tribunal referred to as a “spirited defence…up to and including the Tribunal hearing”.⁵⁷
The respondent was successful. The Tribunal was satisfied that the evidence did not support a finding that because of his conduct or performance the respondent was a serious risk to persons.⁵⁸ Further, the appellant elected not to deal with seven of the fifteen cases in which Dr Woodward had been critical of the respondent’s performance. As the Tribunal noted, themes of “frequent and recurrent urinary tract injuries”, a “troubling and disproportionate number of emergency hysterectomies” and “post-operative haemorrhaging” could not be maintained.⁵⁹
In these circumstances, it was not incumbent on the Tribunal to give detailed consideration to the appellant’s statutory function. The Tribunal made express reference in its Primary Reasons, both to the main objects and the main principle for administrating the HO Act: s 3 and s 4.⁶⁰ A fair reading of both the Primary Reasons and the Costs Reasons shows that the Tribunal was cognisant that the appellant was asserting that in taking the immediate registration action, it was either acting upon a reasonable belief that the action was necessary to protect public health and safety, or that it was otherwise in the public interest.⁶¹ This is also evidenced by the Tribunal’s conclusion for setting aside the appellant’s decision; namely, that the respondent did not pose a serious risk to persons.

Ground 4: Failing to give adequate Reasons

The appellant submits that the Tribunal’s Costs Reasons fail to meet the minimum standards required for adequate reasons. There are two complaints in this respect. The first is the assertion that the Tribunal, rather than considering the parties’ competing submissions, merely recorded those submissions. The second complaint is that the Tribunal’s conclusion at Costs Reasons, [22] render it impossible to discern which factors informed the exercise of its discretion.
An appellate court will generally only intervene when “it is left with no choice” because the reasons, looked at as a whole, portray a miscarriage of justice. Further, the content and detail of reasons to be provided will vary according to the nature of the jurisdiction being exercised and the subject matter of the decision.⁶³
In New South Wales Land and Housing Corporation v Orr,⁶⁴ Bell P (as his Honour then was) observed:

“…the quantity (or detail) of reasons, necessary for those reasons to be adequate, may vary both with the nature of the decision-maker, that is, whether or not it is a court or tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] (French CJ and Kiefel J).

…

An important question which is raised by the present case concerns the detail of reasons required of NCAT for a discretionary decision, particularly bearing in mind that there is no right of appeal from the Tribunal’s decision other than on a question of law (although a broader appeal may be permitted with leave of the Appeal Panel)….”.

(emphasis in original)

The respondent relies on Orr to submit that it is not necessary for a discretionary decision to detail each factor which the Tribunal has found relevant or irrelevant, or to provide detailed articulation as to how specified (and conflicting) factors have been weighed.⁶⁵
As to the appellant’s complaint that the Tribunal failed to resolve the competing submissions, a fair reading of the Costs Reasons evidences a sufficient consideration of the submissions in the context of s 102(3) of the QCAT Act.
As to the consideration under s 102(3)(a) – namely, whether a party to a proceeding has acted in a way that unnecessarily disadvantages another party to the proceeding – the Tribunal gave consideration to the necessity of immediate registration action being taken by the appellant. Earlier in the Costs Reasons at [3](a), the Tribunal noted that the appellant, having received Dr Woodward’s report on 21 June 2022, and despite not making the decision under review until 27 June 2022, did not provide the report to the respondent nor invite submissions from him. As already observed, at the time the immediate registration action was taken, the respondent was no longer practising in Queensland. In considering what weight should be given to the failure to afford the respondent natural justice, the Tribunal observed:⁶⁶

“The [appellant] says she took information from interstate but the immediate action was only to operate in Queensland. Nevertheless, if the other hospital mentioned was not in Queensland, it is difficult to see how the [appellant] could form a view [that the respondent] posed a risk in Queensland.”

In relation to the same consideration under s 102(3)(a), the Tribunal noted the respondent’s submission that he was not the primary caregiver in some of the patient cases. Before the Tribunal, that appellant sought to counter this submission by asserting that the respondent had significant involvement in the care of the relevant patients which resulted in adverse outcomes. The Tribunal, however, noted that the appellant had not sought to advance such a case in the review proceedings. The appellant had not, for example, asserted that although the respondent was not the primary surgeon, his conduct still posed a serious risk.⁶⁷ The Costs Reasons therefore expose reasoning on the part of the Tribunal in relation to considering the significance of the appellant raising matters in which the respondent was not the primary surgeon.
The Tribunal returned to this issue in considering s 102(3)(c); namely, “the relative strengths of the claims made by each of the parties to the proceeding”. The Tribunal noted⁶⁸ that it was not incumbent upon the respondent to demonstrate that the appellant could not have held a reasonable belief in making the decision. All that the respondent needed to show was that costs should be ordered in the interests of justice. The Tribunal’s reasoning therefore reflects a resolution of the competing submissions, rather than a mere recitation of those submissions.
As to the Tribunal’s conclusion on costs,⁶⁹ the judicial member referred to the respondent’s entitlement to legal representation to assist him to litigate a complex matter. The Tribunal was correct to use the word “entitled”, as both the appellant and the respondent were entitled to representation pursuant to s 43(2)(b)(ii) of the QCAT Act. The fact of an entitlement to legal representation was considered a relevant consideration both by Judicial Member McGill SC in Marzini and by Keane JA in Tamawood. When one adds to this the complexity of the proceedings and the other matters considered by the Tribunal, the costs order made constituted a proper exercise of discretion pursuant to s 102(1). The Costs Reasons, while succinctly expressed, were, in the circumstances of these proceedings, adequate.
Ground 4 fails.

Disposition

The appeal should be dismissed with costs.

Footnotes

du Toit v Health Ombudsman [No 2] [2024] QCAT 205 (“Costs Reasons”). ↩
du Toit v Health Ombudsman [2023] QCAT 373 (“Primary Reasons”). ↩
Primary Reasons, [5]. ↩
Costs Reasons, [8]. ↩
Primary Reasons, [6]. ↩
Primary Reasons, [3]. ↩
Primary Reasons, [40]. ↩
Primary Reasons, [129]–[131]. ↩
Primary Reasons, [13]–[15]. ↩
Costs Reasons, [6]. ↩
Primary Reasons, [127]–[128]. ↩
[2020] QCAT 365. ↩
[2005] 2 Qd R 101. ↩
Costs Reasons, [22]. ↩

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