Marzini v Health Ombudsman

• [2] Costs are a creation of statute. Any question of costs in this matter is governed by the provisions of the Queensland Civil and Administrative Tribunal Act 2009 ("the QCAT Act") s 100: "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." The relevant other provision of the QCAT Act is s 102, which provides:

(1) 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.

(2) 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.

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

(a) 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);

(b) the nature and complexity of the dispute the subject of the proceeding;

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

(d) for a proceeding for the review of a reviewable decision -

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

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

(e) the financial circumstances of the parties to the proceeding;

• [3] Other sections in Division 6 of Part 6 of Chapter 2 of the QCAT Act deal with matters related to costs not presently relevant.
• [4] By contrast, proceedings in the state courts are governed by the Uniform Civil Procedure Rules 1999 ("UCPR"), which provide in r 681 that costs are in the discretion of the court, but follow the event unless another order is made. When further proceedings become unnecessary, either party may apply to a court for an order in relation to the costs of the proceeding: UCPR, r 685.
• [5] Ordinarily, a discussion of the law in that area would start with the comments of McHugh J in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-5 and proceed via ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 to the more recent authorities. I need not discuss this in detail, because recently, in Fairfield Services Pty Ltd v Leggett [2020] QSC 183, Bond J undertook such an analysis, and helpfully set out his Honour's conclusions in six propositions at [19] to [24] of his judgment. I respectfully wholly agree with, and adopt, this analysis of the approach under the court system, but need not quote it here.

• [6] There have been a number of decisions on the operation of s 100 and s 102. One of the first to consider the sections was Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364, there was a review filed of immediate registration action taken by the Board, which was abandoned after the Board filed material including an investigator's report, and commenced disciplinary proceedings against the applicant. The Board sought costs of the application, but that was refused by Kingham DCJ, the then Deputy President of the Tribunal, who said at [9]:

The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order.

• [7] There followed a discussion of the various matters referred to in s 102(3). In Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77, another decision of her Honour, she said of s 102(3):

The factors listed in s 102 are a guide to the considerations the Tribunal may take into account in deciding whether this is an appropriate case in which to award costs. In any given case, the relative importance of each criterion will vary. Further, their significance may relate to what stage the proceedings have reached.

• [8] These provisions were considered by the then President of the Tribunal, A Wilson J, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412. Directors of a company in receivership had brought proceedings, said to be misconceived, in the Tribunal in the company's name, without leave of the receivers and managers in control of the company. The application was dismissed, and the directors were ordered to pay the respondent's costs.
• [9] A Wilson J referred to the decision of the Court of Appeal in Tamawood Ltd v Paans [2005] QCA 111; [2005] 2 Qd R 101, where Keane JA (as his Honour then was) discussed the operation of similar provisions of the Commercial and Consumer Tribunal Act 2003, and concluded at [28] that they were "intended to impose a general rule that good reason must be shown in terms of the interests of justice for making an award of costs in proceedings before the Tribunal." He had at [25] noted that one of the principles underpinning the operation of that Tribunal was an emphasis on self-representation, which was linked with the costs provisions in that Act.
• [10] Keane JA then said that there were three reasons why that Tribunal had erred in not awarding costs in that matter, the first being, at [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 recognized 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.

• [11] He said there would be occasions when it would be appropriate for parties to be legally represented because of the nature of the issues involved, and continued at [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.

• [12] He noted at [33] that there was a clear distinction between merely having legal representation, and having reasonably obtained that representation because of the complexity of the case. He continued:

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.

• [13] Keane JA went on to note two other errors in the reasoning of that Tribunal, and concluded at [36] that the order for costs made in the District Court on appeal was open "as a proper reflection of the interests of justice having regard to the facts of the case as found by the Tribunal."
• [14] In Ralacom, A Wilson J said that there were two matters in that decision relevant under the QCAT Act: first, that Act negated the traditional proposition that costs should prima facie follow the event, and the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute, which was said to be equally applicable to the QCAT Act. The second was that "where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome." He said at [27] that this proposition was affected by the difference between the drafting of the two sets of provisions, and at [29] that under the QCAT Act:

the question that will usually arise...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.

In that case, an order for costs was made.[2]

• [15] In Health Ombudsman v Antley [2016] QCAT 472 the Hon J B Thomas QC quoted at [60] the passage from the judgment of Keane JA in Tamawood at [33], and continued at [61]:

The observations were general, and the statutory framework was similar to those now applicable to QCAT. Consideration is therefore necessary as to whether there are "countervailing considerations" in the present case.

• [16] In Grasso v CMG Consulting Engineers Pty Ltd [2011] QCATA 326 A Wilson J repeated the Ralacom test at [11], but at [14] also cited Tamawood (supra) at [30] without qualification. That case involved an unsuccessful attempt to appeal from an interlocutory decision of the Tribunal, and at [13] his Honour said that costs in an appeal may be viewed differently from costs in a proceeding. An order for costs of the appeal was made in favour of the successful respondent.
• [17] The formulation of A Wilson J has subsequently been widely accepted as stating the correct approach to these provisions,[3] 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.[4] 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.
• [18] In Queensland All Codes Racing Industry Board v Abbott (No 2) [2016] QCATA 49 Thomas J, the then President of the Tribunal, spoke at [20] of the decision in Tamawood being "informed by two important points", and continued:

The first was that the value of the order for compensation was eroded by Ms Paans' costs of obtaining that order. The second consideration was the behaviour of Tamawood Homes prior to the commencement of proceedings which showed a continuing default.

• [19] Tamawood was an appeal from a decision of mine.[5] Keane JA held that my interpretation of the provisions of that Act was in error, but I had also held that that Tribunal had erred in its application of the statute as understood by it, and that was endorsed by the Court of Appeal: [29]. Three reasons were given for that conclusion. The first was that set out at [30] - [33], which I have discussed earlier. The second was that I had been correct in identifying that the Tribunal had taken into account, in deciding not to award costs, an irrelevant consideration. The third was the one referred to briefly at [35].
• [20] Keane JA had earlier quoted paragraph [72] of my reasons, in which I summarised the considerations I regarded as important in supporting making an order for costs in favour of Mrs Paans. What I had said there about the conduct of the other parties before the commencement of the proceedings was: "The applicant has pointed out the problem at an early stage, when it could easily have been remedied, but it was not." His Honour was simply pointing out that one of the matters I had identified was covered by a specific provision of the applicable section. I do not read the judgment as in some way indicating that the earlier comments about the interests of justice if a person reasonably incurred costs in order to pursue a just claim was in some way inapplicable if that consideration stood alone. The position was simply that, in deciding whether the interests of justice required an order for costs, his Honour took into account all of the relevant circumstances of the particular matter. That approach must be correct.
• [21] There is inevitably some tension in a legislative approach which specifies no costs unless the interests of justice require it, because it has long been recognised that the ordinary rule in courts, that costs follow the event, is grounded in reasons of fairness and justice. The proposition is well expressed in a passage from the judgment of McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, quoted by Bond J in Fairfield Services (supra) at [20]. Given the different approach in this Act, s 102 cannot be used simply to apply the ordinary rule in proceedings in the Tribunal.[6] As was the case with the earlier Tribunal, the explanation for the adoption of a different approach is that again the legislative approach is that ordinarily parties to proceedings in the Tribunal would not have legal representation.
• [22] The QCAT Act s 43(1) provides: "The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise." The similarity of wording is obvious. As a result, a party generally requires leave to have "someone else" represent the party: s 43(2)(b)(iv). One exception to this however is s 43(2)(b)(ii): "the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person." That covered the present application. The applicant had a right to be legally represented.
• [23] This factor was regarded as significant by the Hon J B Thomas QC in Lee v Medical Board of Australia (No 2) [2016] QCAT 321 at [48], as:

bringing into play some of the factors mentioned by Keane JA in the Tamawood case, especially the observation that justification and engaging legal representatives for a complex case 'could be... a sufficient basis' for awarding costs 'in the absence of countervailing considerations'.

• [24] He had earlier said at [37] that "observations of particular assistance concerning the exercise of the discretion conferred by [the relevant] sections are made in Tamawood ...especially at [24], [25], [30], [32], [33] and [35]...". He said the same about Ralacom (supra), and went on at [38]:

The ultimate question posed by the statutory provisions is whether it is in the interests of justice to make a costs order. A wide range of circumstances must be considered in order to answer it.

• [25] That sentence, in my respectful opinion, correctly expresses the effect of s 100 and s 102 of the QCAT Act. In that case AHPRA had taken immediate registration action against the applicant, which was subsequently varied in a way which made it much more onerous. The applicant applied to have both decisions reviewed, and a compulsory conference was held, at which the matter was not resolved. Subsequently the applicant withdrew the application, and the Board sought its costs. Judicial Member Thomas considered whether the application was a disciplinary proceeding for the purposes of s 43, and held it was. He referred to Tamawood as I have mentioned, and the fact that the respondent Board was funded by practitioner members. This had been regarded as relevant under an earlier provision dealing with costs,[7] and was said at [48] to be "evaluated in the context of a determination of whether a costs order is in the interests of justice." The application had been withdrawn shortly before the hearing date, and after the respondent had prepared for a hearing, and the approach in _Tamawood "_clearly required departure from the usual rule": [53].
• [26] An order for costs was made, limited to 75% of the respondent's costs. This limitation was imposed because of the behaviour of the respondent in relation to the compulsory conference, which Judicial Member Thomas said at [67] would justify awarding against it a substantial part of the costs in relation to the conference. Instead, the amount of costs recovered was reduced.
• [27] A costs decision of the Tribunal came before the Court of Appeal in Medical Board of Australia v Wong [2017] QCA 42.[8] Disciplinary proceedings against the respondent brought by the Board had resulted in a finding of impairment, something the respondent had conceded from the beginning. Deregistration was refused, and there was subsequently a dispute before the Tribunal as to the appropriate conditions to be imposed on his registration, where again the respondent was substantially successful. The Board was ordered to pay his costs on an indemnity basis, but on appeal that order was set aside. A finding that the Board had acted inappropriately in referring the disciplinary proceeding to the Tribunal had disregarded the terms of the then applicable legislation, which required the Board to do so if it formed a certain opinion. There was no finding, or a basis for any finding, that the Board had not formed that opinion. Accordingly it was bound to refer the disciplinary proceeding to the Tribunal.
• [28] At the substantive hearing, the Board had amended the referral to include an allegation of impairment, and did not seek a finding of professional misconduct, although it did submit that such a finding would be open. This approach was criticised by the Tribunal, on the basis that it was not supported by the Board's medical evidence, but the Court of Appeal held that there was an error in attributing to that evidence a legal consequence it did not have: [34]. Finally, in relation to the contest about what conditions to impose, the Court at [35] noted that the approach of the Board was said to be not wholly unreasonable, but no aspect in which it was unreasonable was identified, and continued: "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."
• [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.
• [30] In Nursing and Midwifery Board of Australia v Laughlan (No 2) [2019] QCAT 250 Sheridan DCJ made an order for costs against the practitioner in disciplinary proceedings brought by the Board, but limited the amount to $15,000. Her Honour said that the respondent had failed to comply with directions, and made the proceeding unnecessarily protracted because of her conduct, and inability to admit any failing: [20]. On the other hand, costs were limited to prevent the order from having a crippling effect on her: [25]. In Zaphir v Health Ombudsman (No 2) [2019] QCAT 259 an order for costs was made against an applicant who had challenged unsuccessfully an interim prohibition order made by the respondent. Sheridan DCJ referred to Ralacom, Wong and Antley, and said that the applicant had been uncooperative in the investigation, had a weak case for review, and had expounded his case in a dishonest way. These examples show that the costs discretion can be exercised in a flexible way.
• [31] In Kelson v Queensland Police Service [2019] QCATA 103 an order for costs was refused by the President of the Tribunal, Daubney J. An appeal under the Right to Information Act 2009 had succeeded but only to a limited extent. His Honour referred to s 100 as providing "the default position on costs" at [4], and said that s 102 gives the Tribunal "discretion to require a party to a proceeding to pay all or part of the costs of another party to the proceeding if the Tribunal considers that the interests of justice require it." After considering the circumstances of that case, his Honour decided that he was not satisfied that the interests of justice required a departure from the standard position: [8].
• [32] In Thompson v Cannon [2020] QCAT 109 the Hon P Lyons QC considered the operation of these provisions in a matter where the parties had resolved a dispute at mediation but the applicant was then difficult about giving effect to the agreement. He said at [34]: "The key question raised by s 102 is whether the Tribunal considers that the interests of justice require it to make an order for costs." He noted that s 102(3) did not refer to the outcome of the proceeding, but did refer to the means of the parties, which differed from the usual position in courts. He said, of s 102(3)(f), that "the Tribunal could only consider a matter to be relevant, if there is a rational connection between that matter and a conclusion that the interests of justice require an order for costs." An order for fixed costs was made against the applicant.
• [33] Recently in Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327 the President of the Tribunal decided not to make a costs order in a matter where a solicitor challenged unsuccessfully the cancellation of his practising certificate. His Honour quoted the legislation, and continued at [6]:

It is, therefore, clear that the Tribunal retains a discretion to award costs if it "considers the interests of justice require it to make the order". Section 102(3) enumerated a number of matters to which the Tribunal may have regard when considering the interests of justice in a particular case.

• [34] His Honour quoted a passage about s 102(3) from Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77 at [10], and continued at [7]:

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.

• [35] His Honour then quoted the passage from Ralacom quoted earlier, and said that it had been consistently adopted and applied in the Tribunal. He discussed the facts of that case, said that the applicant had a lawful entitlement to have access to the Tribunal's review jurisdiction which exists in a prima facie "no costs" environment, the matter had been conducted expeditiously and efficiently, and it had not been demonstrated that the interests of justice in that case overcame the mandated primary "no costs" policy.

• [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 (supra): 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 (supra) to the comments of Keane JA in Tamawood (supra), and with his analysis of the considerations relevant to the interests of justice in disciplinary proceedings in Antley (supra).
• [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.

• [38] On 30 October 2017 a neurosurgeon lodged with the respondent a complaint about the applicant. He had seen a patient of the applicant who had significant back pain from spinal degeneration, which the neurosurgeon assumed had been worse since being treated by the applicant with "ozone gas injections into spine".[9] A CT scan, ordered by a GP, showed extensive gas in dorsal paraspinal musculature, and small amounts in the lumbar canal. The GP had sent the patient to an emergency department,[10] who had sought the assistance of the neurologist. He said that gas was usually only seen with severe trauma or gas forming organism infection, he was not aware of such a therapy as a recognised treatment for lumbar degeneration, in terms of safety or effectiveness, and that he was "concerned that the iatrogenic introduction of gas into the spine could cause infection or potentially even a fatal gas embolism." He did not clarify at that point whether the risk was associated with the presence of ozone (or any gas) in the spine, or with the insertion of a needle into the spine to deliver it. Indeed, read carefully, he did not say that what he saw indicated that the applicant had inserted a needle into the lumbar canal, although the terms of his complaint were susceptible to the interpretation that that was what had occurred.
• [39] He had seen, and in due course the respondent obtained, the report of the radiologist who confirmed that there was gas in the posterior soft tissues and in the epidural space, and that this suggested that "there has been a procedure performed on the spine which has introduced air into the tissues and also into the L4/L5 and L5/S1 epidural space." Again, read carefully, this did not confirm that there had been a needle inserted into the spine itself, although it could have been interpreted as suggesting that that had occurred.
• [40] In response the respondent sought, from an Associate Professor in the field of general practice, advice about ozone therapy, and its possible risks. On 5 November 2017 he advised that ozone therapy was not a conventional medical treatment or an evidence-based complementary therapy, although he did note that there was some evidence of benefit from targeted ozone injections for intervertebral disc disease, under image control. When asked about the risks of ozone therapy generally, and if administered by spinal injection, he said that the risk would depend on the delivery method, although the main effect of ozone was irritation of the mucous membranes, and that for spinal injection, the risk was anatomical damage unless under image control by a competent radiologist. He added that the main problem with ozone therapy was that the treatment was ineffective. This advice appears to have assumed the actual insertion of a needle into the spine to inject the gas, as the advice was sought on that basis. It also appears that he had no personal familiarity with ozone therapy, and had researched literature.
• [41] In a supplementary advice provided 16 November 2017 the same person stated that ozone therapy by injection into the lumbar region was not reasonable and not safe. The advice identified risks of infection control, trauma to vital structures (presumably the spinal cord) and embolism in the spinal structures. He noted that injecting gas into blood vessels could lead to embolism. This advice also appears to have been based on the assumption that the gas had been injected directly into the spinal column, apparently because he had been asked to assume that that was what had occurred.
• [42] Meanwhile, on 10 November 2017 the respondent's investigators had visited the applicant, to give him a notice under s 278 of the Act,[11] and a notice under s 228 seeking his records of the patient, and communications with other practitioners about him. On 13 November the patient was interviewed and provided a signed statement.[12] On 20 November 2017 he was telephoned, and a draft statement was prepared from notes of the conversation. Then on 21 November 2017 the delegate of the respondent decided to take the action under s 58.
• [43] The conditions imposed were relevantly as follows:
  1. The practitioner must not introduce, administer or inject into any part of the body any substance with a needle and syringe.
  2. The practitioner must not provide or promote, any health service involving the injecting of Ozone gas into any part of the body, paid or otherwise.
  3. The practitioner must not provide any training, demonstration, education or instruction on the injecting of Ozone gas into any part of the body, paid or otherwise.
  4. The practitioner must publish or make available any documents, videos or photographs demonstrating the use of and the injecting of Ozone gas into the body.[13]
• [44] There followed a number of what I suspect are standard machinery conditions, seeking information about places where the applicant provided health service, written authorisation to obtain information from various other authorities, requiring advice of any change of address or charge with an indictable offence, and a monthly statutory declaration stating that the conditions were being complied with. There was also a "condition": "The practitioner agrees that he will not seek reimbursement from the Health Ombudsman for any costs, either directly or indirectly, associated with the imposition of these conditions." This is not, in terms, a condition imposed on a practitioner, and I cannot see how s 58 of the Act authorised such step. I regard it as ultra vires, and no obstacle to any order for costs under the QCAT Act.
• [45] The notice set out reasons for the action taken. These recited in detail information provided, including that the patient said that the applicant had injected him in the back three times with ozone gas, and also into the right knee, without imaging equipment or a radiologist present, that the respondent had seen a copy of the radiology report which was consistent with the complaint, and that a member of the Chinese medicine board had advised that the practice of Chinese medicine does not involve injecting anything into the patient. The reasoning involved a conclusion that ozone treatment was not an approved treatment and was unsafe, which meant that he was not practising in accordance with current and accepted evidence based treatment. Injecting ozone gas into the lumbar region was reckless, and could have caused serious physical harm, or even death. There was also a finding that he had failed to identify and consider a foreseeable risk of harm to the patient, from a treatment of unproven benefit. This was said to have breached some general statements in the Code of Conduct for the practice of Chinese Medicine. There was also a general finding that he may cause harm to current and future patients by administering injections.

• [46] The Act provides in s 58 relevantly as follows:

(1) The health ombudsman may take immediate registration action under this division in relation to a registered health practitioner if -

(a) the health ombudsman reasonably believes that -

(i) because of the practitioner's health, conduct or performance, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take the action to protect public health or safety;

...

(2) The health ombudsman may take the action at any time, whether or not a complaint has been made in relation to the registered health practitioner.

• [47] Section 59 provides for a show cause process, with notice to the practitioner and at least seven days to respond before a decision is made. However, s 59(4) provides:

However, if the health ombudsman is satisfied it is necessary to do so to ensure the health and safety of an individual or the public, the health ombudsman may take immediate registration action without complying with subsections (1) to (3).

• [48] Section 62 provides that the action continues until set aside on review by the Tribunal, or set aside by the respondent. Under s 58A the respondent has power to vary immediate registration action if there is a material change, and by s 65, if satisfied it is no longer necessary, the respondent must remove the condition imposed. By s 84, if action is taken, the respondent must investigate the matter, refer it to the National Board, or refer it to the director of proceedings under Part 10 Division 2. By s 3(1), the main objects of the Act are:

(a) to protect the health and safety of the public; and

(b) to promote -

(i) professional, safe and competent practice by health practitioners; and

(ii) high standards of service delivery by health service organisations; and

(c) to maintain public confidence in the management of complaints and other matters relating to the provision of health services.

• [49] Section 3(2) provides that the objects are to be achieved mainly by establishing a transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters relating to the provision of health services. The main principle for administering the Act is that the health and safety of the public are paramount: s 4(1). That is the main consideration for the Tribunal in deciding a review: s 4(2)(c).
• [50] A practitioner who is the subject of immediate registration action can apply to the Tribunal for the decision to take that action to be reviewed: Health Ombudsman Act 2013 ("the Act") s 63. In conducting the review, the Tribunal has all the functions of the respondent, and must hear and decide the application as a fresh hearing on the merits, to produce the correct or preferable decision.[14] The Tribunal takes into account the material before it, and makes the decision appropriate at the time of the review.[15]

• [51] In Colagrande v Health Ombudsman [2017] QCAT 107 Sheridan DCJ, the then Deputy President of the Tribunal, said that it was accepted that any immediate action taken ought to be the least onerous to address the relevant risk: [18], citing authority. She said that it was a question of what action was necessary to protect public health and safety: [19]. More recently the concept of "serious risk" was discussed by the Deputy President of the Tribunal in Health Ombudsman v MacBean [2019] QCAT 300, in the context of the Act s 113. His Honour said at [12]:

The term "serious risk" is not defined in the HO Act, the National Law, or the Acts Interpretation Act 1954. The term therefore takes its ordinary meaning in its statutory context. The word "serious" is defined in the Macquarie Dictionary as: "of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind."

• [52] His Honour went on to say that, in assessing whether a practitioner posed a serious risk to persons, it was helpful to consider the nature of the risk, the likelihood of its eventuating and the seriousness of the consequences if the risk did eventuate: [14]. That approach has been adopted in other decisions under s 113, and it seems to me with respect that his Honour's approach provides appropriate guidance to the term "serious risk" where it appears in s 58 as well. The question is whether, considering the factors referred to, the risk arising can fairly be described by the term "serious", in its ordinary meaning.

• [53] It is not appropriate that I try the review application, or conduct some sort of judicial review of this decision, in order to decide the question of costs, but s 102(3)(c) does refer to the relative strengths of the claims made by each of the parties to the proceeding, and it is appropriate that I say something about this decision. The decision involved three propositions, which were really separate: the injection of ozone gas into the spine; ozone gas therapy in general; and the injecting of anything else. The presence of gas within the structures of the spine suggested that gas may have been injected into the spine, even though the account of the patient did not specifically support that. There was therefore evidence for concern about risks involved in that process. That could have provided a basis for a reasonable belief that injecting ozone into the spine posed a serious risk to persons. Indeed, the identified risks would appear to apply to the injection into the spine of any gas.[16]
• [54] The evidence about ozone therapy more generally was much less clear, the principal feature of it being that there was said not to be a proper scientific basis for considering it beneficial, and it involved some risk because of the toxic nature of ozone. On the face of it, the evidentiary basis for a belief that there was a serious risk posed to persons from the use of any form of ozone therapy strikes me as quite thin, and it is difficult for me to see how it could form a proper basis for a reasonable belief that any use of ozone therapy posed a serious risk to persons. Information was not obtained from anyone who actually knew about ozone therapy, and there seems to have been no consideration of how widespread the use of ozone therapy actually was, a matter of some relevance because the reasoning would appear to apply equally to any registered health practitioner who was using ozone therapy. This strikes me as a large step to take on such slender evidence. If ozone therapy is to be banned in Queensland, this is not the way to go about it.[17]
• [55] The conclusion that for the applicant to inject anything into anyone posed a serious risk to persons strikes me as even more difficult to justify. There was simply no evidence that he had ever caused any harm to anyone from injecting anything other than gas into anyone, and the reasoning was based on the proposition that his treatment of this patient had been so inappropriate and dangerous that he could not be trusted to inject anything. But that reasoning is not specific to injecting something, just because what caused the concern happened to be an injection. If he is such a danger to his patients that he could not be trusted to inject anything anywhere, why should he be trusted to carry out any other procedure? The reasoning does not survive logical scrutiny. The fact that the ordinary practice of Chinese Medicine does not involve injecting substances seems irrelevant to the question of whether the applicant posed a serious risk to persons in this way. Overall therefore, it seems that the action taken, if justified at all, was too wide.
• [56] On the hearing of a review the Tribunal would not be concerned with whether the original decision was justified on judicial review grounds. But if there are aspects of the original decision which appear to rest on shaky foundations, or are based on factual propositions the applicant knew to be false, this can be seen as inviting an application for review by the Tribunal. I regard this as something of relevance to the question of costs. Further, it is relevant to consider the reasonableness of commencing the review by reference to the situation at that time.
• [57] There is also the consideration in s 102(3)(d)(i), of whether the applicant was afforded natural justice. The respondent's response to this was to rely on s 59(4), as a legislative exemption from natural justice, dependent on the satisfaction of the respondent. That however is not the end of the matter. In the first place, there was no consideration in this context of the three separate issues covered by the action. The only one which presented any sort of immediacy of risk was the first. I can see no rational basis for a conclusion that it was necessary for the health and safety of an individual or the public for the second and third prohibitions to have been imposed without the show cause process first.
• [58] It is not as though there was not time for notice to be given. Investigators visited the applicant on 10 November 2017, and could easily have given notice under s 59, or even told him less formally that action under s 58 was under consideration, and invited a submission. For that matter, they could have invited him to provide them with his version of the treatment provided to the patient if he wished to do so,[18] although that may well not have influenced the respondent; when it was provided, it appears to have had little influence.
• [59] The requirements of natural justice are a fundamental part of Australian public law. Their importance has been stressed many times by the High Court, and other courts. Any legislative intrusion on them is always strictly and narrowly construed, and I would not expect a court to hold that s 59(4) gave an unlimited power to ignore them. But apart from this, whether or not the respondent's actions were protected by this legislative exclusion of the requirements of natural justice, it remains that natural justice was not in fact afforded to the applicant. To the extent that this is relevant to the question of costs, it assists the applicant.
• [60] After the immediate action was taken, on 6 December 2017 the applicant made a submission to the respondent, through his solicitors, seeking to have it withdrawn, and suggested a "without prejudice" conference to discuss the matter. In response that proposal was rejected, and the respondent did not withdraw the action taken, but continued to investigate. A further, more detailed submission was made on 15 December 2017, again a "without prejudice" conference was proposed, and a review application was foreshadowed, but again the respondent refused to meet on those terms, and just invited the applicant to provide evidence. The letter of 15 December also foreshadowed a claim for costs in defending the applicant's right to practise. The respondent apparently did not give the applicant a notice under s 61(3)(b)(i).[19] Under s 63(2) of the Act, an application for review may be made within 28 days after that notice was given; there appears to be no mechanism to extend this time limit. The applicant's application was filed on 19 December 2017. It appears that the time limit was thought to operate from the date of the notice under s 60.[20]
• [61] It appears from the material provided by the applicant that he was particularly upset by the allegation that he had injected the gas into the spine of the patient. He says that the injection was into muscle only, and not over the spine, but to the side. He lodged complaints against the doctors who saw the patient in the emergency department and the neurosurgeon who made the original complaint.[21] He also complained that investigators from the office of the respondent had pressured the patient into making particular statements. The patient appears to be supportive of the applicant, and has provided statutory declarations, claiming that one of the doctors attributed things to him that he had not said and that the respondent's investigators when preparing a statement for him to sign had not included all relevant information he had provided to them.[22] It appears to me however that the opinion of the neurosurgeon was based not so much on what he was told, but what he and the radiologist saw on the scan. The practical effect of this is that the dispute widened and became more complicated.
• [62] It is not obvious however why this should have delayed the respondent in investigating the matter more fully, and in particular, finding out more about ozone therapy. The chronology of the investigation[23] shows various steps apparently directed to the investigation, but their relevance is by no means obvious to me. On 1 March 2018 the applicant provided a statutory declaration, and a report by another doctor concerning ozone therapy.[24] Accordingly to the chronology, it was apparently April before any steps were taken by the respondent to obtain relevant expert opinion. The opinion of another neurosurgeon was sought, and obtained on 20 April 2018. Eventually, on 1 May an opinion was sought from a naturopath, received on 10 May. There were some other steps, but it appears that the next relevant step was a conference by telephone with the naturopath, and the decision to revoke the immediate registration notice, on 24 May 2018.
• [63] The applicant practices as a naturopath and natural therapies practitioner and has done so for over 28 years.[25] Among the alternative therapies he offers are Chinese medicine and acupuncture, hence his registration as a Chinese medicine practitioner. My impression is however that it is a relatively small part of his practice, most of which involve health services which are outside the field of any profession for which one is required to be registered.[26] In the circumstances this strikes me as an obvious line of enquiry, and it seems odd that it took the respondent so long to get to it. The naturopath consulted by the respondent advised at some length, but in essence his advice was that ozone therapy is a known alternative therapy which has proponents and critics, but is safe enough if the practitioner is properly trained. The applicant says that he had completed a training course in the use of ozone therapy.
• [64] The naturopath said that there would be risks in the use of ozone therapy arising from the risks in injecting anything, particularly into a blood vessel, and practitioners avoid them when applying the therapy. There is some evidence in the literature of the therapy being helpful with musculoskeletal problems, such as back pain. He said that there would be risks in injecting ozone into the spine, and it was not part of the usual practice of ozone therapy. He confirmed however the opinion of the doctor provided by the applicant, that the gas can move after it has been injected into the body, and this could explain the presence of gas in the lumbar canal. His opinion was that, if ozone did enter the lumbar canal in this way, it would be harmless. He said the risks in injecting into the spine were related to the introduction of the needle into that area. He also pointed out that ozone therapy is not a prohibited therapy in Australia.
• [65] In the light of this evidence, it is unsurprising that the respondent promptly revoked the immediate registration action imposed on 21 November 2017. It is also apparent that, if the matter had been investigated more thoroughly before the sweeping action was taken on 21 November 2017, it either would not have been taken at all, or it would have been much more confined, perhaps limited to a condition against injecting gas into the spine of a patient, something which would presumably not have troubled the applicant as he said he did not do that anyway. Indeed, if the enquiry had been directed to a naturopath earlier, it would have been brought to an end earlier; the expert provided his advice only ten days after it was sought.
• [66] I should add that the second neurosurgeon was quite sceptical of the therapeutic value of ozone gas injections, for pain relief or anything else. He identified a list of risks associated with injections of anything, and in particular injections of gas. This no doubt reflects the fact that ozone therapy is rejected by conventional medical practitioners in general, but if the therapy is not prohibited, that is really beside the point. Significantly, he supported the proposition that gas can seep into parts of the body other than those into which it has been injected, and said that the extensive gas in the extra-spinal soft tissues suggested to him that the applicant's injection had not been into the spinal canal, but the gas there had seeped in from adjacent soft tissues. That is consistent with the applicant's account. This evidence is inconsistent with the theory that the presence of gas in the spinal canal shows that it was injected into the spinal canal, which appears to have been the basis of the original complaint.
• [67] Indeed, during an interview with the first neurosurgeon, on 27 February 2018, he said that he could not say from the CT scan where exactly the gas was injected, and could not exclude the gas having tracked into that area after the injection.[27] He said at the time he did notice needle entry points on the patient's back, and as he recalled they were in two rows, one on each side of the spine, about three or four centimetres off the midline.[28] He had no experience of ozone therapy, and could not comment on how it was done. It follows that as early as February 2018 the respondent knew that the first neurosurgeon was not able to contradict the applicant's assertion that he did not inject gas into the spinal column, but just into muscles on each side of it. It is difficult to see how, after this point, the respondent had any reasonable basis for a belief that the applicant had, or might have, inserted a needle into the patient's spine in a way that was unsafe.
• [68] It appears to me that it is reasonable to infer that, if the additional expert opinions had been obtained before the action under s 58 was taken, that action is unlikely to have been taken. Further, if they had been obtained at an earlier stage in the investigation, the action under s 58 would have likely been revoked sooner. That would have prevented the applicant from incurring further legal expense.

• [69] The application for review came on for a directions hearing on 16 February 2018, when directions were made for the respondent to provide relevant documents to the Tribunal, and to file and serve other documents relied on, by 19 February, and the matter listed for a compulsory conference on 22 February. The conference was ultimately held on 1 March, but the matter did not resolve, and a further directions hearing was listed on 13 April, later relisted to 25 May 2018. On that day the applicant made it clear that he wished to pursue a costs application against the respondent. Directions for that were given, and he filed an application on 27 July 2018 seeking legal costs on the indemnity basis, and out of pocket expenses. That is the application which is now before me.
• [70] At a further directions hearing on 25 October 2018 the applicant indicated he also wanted to pursue a claim for compensation under s 232 of the Act, and related relief. Directions were given, and on 1 November 2018 the applicant filed a further application seeking to join the State of Queensland to the proceeding, and seeking from the State compensation under the Act s 232 for various matters. It is not necessary to go into the details of this, because the Deputy President held on 3 May 2019 that the Tribunal did not have jurisdiction to hear and determine a claim for compensation from the State under s 232, assuming (which he doubted) that it applied in these circumstances.[29] Accordingly that application failed. If costs had followed the event, the applicant would have been required to pay them.
• [71] In connection with his application for costs, the applicant sought the production of a list of documents or categories of documents. That was contentious, and that dispute came before Sheridan DCJ, the then Deputy President of the Tribunal, who on 27 November 2018 held that the documents were relevant to two of the grounds relied on in support of the application for costs, and directed them to be produced.[30] The documents were to be filed in the Tribunal and the applicant allowed to inspect them, and obtain copies on payment of the Tribunal's reasonable copying costs. On that occasion the applicant was successful; if costs had followed the event, the applicant would have received them.
• [72] There was however a dispute between the parties as to whether the directions given on 27 November 2018 had been complied with. That dispute came before the Deputy President, and was also decided on 3 May 2019, although the decision was amended on 17 May 2019 after it emerged that certain documents had been provided to the Tribunal and subsequently overlooked by the parties.[31] To the extent that matters were contentious in that application, the applicant was at least substantially successful. A claim of public interest immunity raised by the respondent was rejected. It seems to me that that was something which ought to have been raised prior to the decision of 27 November 2018, if it was to be raised at all. Again, if costs had followed the event, the applicant would have received them.

• [73] The applicant has filed lengthy, and somewhat repetitive, submissions in relation to the question of costs, and filed extensive material. In relation to s 102(3)(a) he complained of the actions of the respondent, in acting on a complaint which he described as containing false and misleading statements, in imposing sweeping restrictions on him, and in refusing his requests to meet and discuss the matter on a "without prejudice" basis. I think it can be said that, in imposing such wide conditions, the respondent acted precipitously and without proper investigation, as discussed above. As well, it failed to provide proper disclosure, requiring the applicant to make two applications to the Tribunal. In this way, I consider that the respondent did unnecessarily disadvantage the applicant.
• [74] In relation to the nature and complexity of the dispute, the applicant again complained of the approach of the respondent, but it seems to me that the significant matters here were that the dispute involved the imposition of conditions which caused a significant impact on the applicant's business. The applicant has put forward a quantification of the loss suffered by him as a result of the respondent's actions at over $500,000.[32] Without analysing this claim, it is easy to accept that, whatever the true figure, such wide restrictions would have had a significant adverse financial impact on the applicant. No doubt it is because of the serious impact of such action that the legislature has provided a right to legal representation in such a proceeding. These are aspects of the nature of the dispute, rather than its complexity. The basic facts relating to the actions of the applicant were not complex, although the matter seems to have been complicated unnecessarily by the expansion of the original complaint to include the second and third issues I identified earlier. That was the fault of the respondent.
• [75] I have already said something about the relative strengths of the of the case of each party, and the issue of procedural fairness. As to s 102(3)(d)(ii), in circumstances where the relevant decision was taken without reference to the applicant, the applicant cannot be criticised on this basis. Once the decision had been made, he certainly attempted to have it reversed, and provided material to the respondent, but the respondent appears to have been unwilling to act on it, and acted only when its own investigations turned up further material which substantially weakened its case.
• [76] As to the financial circumstances of the parties, the respondent is a government agency whereas the applicant is, in effect, running a small business, which has been significantly adversely affected by the respondent's actions, so as to weaken his financial circumstances apart from the need to obtain legal assistance. The applicant referred to the objects of the Act, including the paramount guiding principle in s 4, and the reference in s 3(2) to "establishing a transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters relating to the provision of health services." He submitted that the principle in s 4 should not be used to justify the unfair and unreasonable use of power, as he submitted had occurred in this case.
• [77] The applicant also relied on the provision is s 230, that: "In exercising a power, an authorised person must take all reasonable steps to cause as little inconvenience, and do as little damage, as possible." It appears from Division 1 of Part 15 of the Act that the Health Ombudsman (s 197) and other persons in the office involved in the decision and the investigation (s 196) were authorised persons, and there is some force in the proposition that the respondent failed to comply with such a limitation in exercising the power to take immediate registration action. However, s 195 provides that a reference in Part 15 to an exercise of power means an exercise of power under Part 15, or under a warrant. An exercise of power under s 58 is not an exercise of power under Part 15, or under a warrant, so the effect of s 195 is that s 230 does not apply to that exercise of power.[33] Nevertheless, the proposition s 230 states is in principle applicable to s 58, as statutory powers should always be exercised to the minimum extent necessary, to avoid causing unnecessary inconvenience or damage.[34] At one point the applicant also alleged a breach of s 264 of the Act, but I am not persuaded that a breach of that section has been shown; apart from anything else, there is no evidence that any misleading statement was made deliberately.
• [78] One other matter relied on was that the notice of the immediate registration action was said to have been issued under the wrong statutory provisions, thus rendering it ultra vires. The notice referred to s 58 of the Act, and that is the section which empowers the respondent to take immediate registration action against a registered health practitioner, which the applicant was, and indeed is. It appears to me that this is the relevant provision of the Act, and the notice was correct in referring to it. The applicant's point was that, in treating this patient, he had not been acting as a Chinese Medicine practitioner, but as a naturopath, so that the relevant statutory provision was s 68, dealing with other health service providers. This is not a matter on which I have heard full submissions, and I do not need to decide it, but I do not accept that the applicant had a strong case on this argument.[35]
• [79] The applicant also complained about some of the conduct of officers of the respondent during its investigations, and about the terms of a communication between the respondent and AHPRA. I do not propose to go into these matters, as I do not consider that, if justified, they would add anything to the aspects of the respondent's conduct which I have discussed earlier.
• [80] In further submissions, identified as Final Submissions on Costs, the applicant complained about the decision of the Deputy President in the joinder application, but that is not something I can look behind. I am not concerned with any claim for any form of compensation, just whether an order for costs, and if so what costs, should be made. Section 102 deals with "costs" which means legal costs in the conventional sense, that is, money spent on a lawyer or lawyers in connection with a proceeding in the Tribunal. Any other adverse financial consequences of the action of the response are irrelevant, except in so far as they have impacted on his financial position, which is relevant under s 102(3)(e). He also complained about the failure of the respondent to investigate the matter, and particularly the issue of ozone therapy, in a timely and thorough way prior to acting, which I dealt with earlier.
• [81] The applicant also submitted that it was incorrect for the respondent to have assessed his conduct by reference to the Code of Conduct for Registered Health Practitioners, in circumstances where the administration of ozone therapy was not something done by him as a registered Chinese Medicine practitioner, but as a naturopath, which does not involve registration. The issue of the extent to which a registered health practitioner is bound by codes of conduct when not acting as a registered health practitioner is more complicated than that, but it does seem to be correct to say that, when the applicant was administering a treatment which was not part of Chinese Medicine, it was not relevant for him to comply with aspects of any code of conduct applicable to a Chinese Medicine practitioner which was concerned with the nature and content of treatments provided. Hence it was not relevant that ozone therapy was not approved for therapeutical use, nor that it was not an evidence based therapy, two of the matters raised in the original notice.[36] What mattered was whether its use by a naturopath was banned, and whether its use posed a serious risk to the health or safety of the public.

• [82] The respondent provided submissions in writing on costs dated 25 September 2018, and further submissions in writing on costs dated 9 August 2019. The former referred to the relevant sections, and the decisions of Ralacom (supra) and Wong in the Court of Appeal (supra). They did not address the appropriateness of the respondent's decision, or the efficacy of ozone therapy, although it was submitted that the decision was made on proper criteria in the public interest. It was submitted that the application had been filed before the material sought by the respondent in its letter of 18 December 2017 had been provided, but it appears that when it was provided it was essentially disregarded. The submissions sought to justify refusing to meet the applicant on a "without prejudice" basis, which strikes me as a little curious since, when the application for review came on for directions, there was a consent direction for a compulsory conference, which was effectively on a "without prejudice" basis,[37] but I do not regard this as of any great significance.
• [83] It was submitted that the law about immediate action is settled. One aspect of it is that the action should be no wider than is necessary, something the respondent appears to have disregarded. The respondent referred to the fact that the costs agreement with the applicant's solicitor was not signed, but a signed agreement is not mandatory, and I expect the agreement was accepted by conduct. Some other matters were mentioned, which I have dealt with elsewhere. Finally it was submitted that the effect of the revocation of the decision which was the subject of the review application meant that there was no longer any controversy before the Tribunal, so that the Tribunal had no jurisdiction to make any further order, including for costs. But the jurisdiction under s 62 to review the decision under s 58 of the Act was properly invoked, and once that point was reached there was a proceeding before the Tribunal in which it was open to the Tribunal to make an order for costs under s 102 of the QCAT Act. That remains in controversy, and the Tribunal has jurisdiction to decide that. There is no substance in that submission.
• [84] The second submissions referred to the fact that the original complaint to the respondent was in the form of a mandatory notification by the neurosurgeon under s 141 of the National Law, but that does not mean that it was mandatory for the respondent to act under s 58.[38] The content of the complaint was analysed, as was the decision of the respondent under s 58, without identifying that there were three separate matters covered by the respondent's conditions, and without appreciating that the position of each was quite different. It was submitted that the subsequent investigation, required under s 64, was not relevant to the question of costs, but anything discovered in that investigation could have been relied on in the review hearing,[39] and it was that investigation which finally led the respondent to revoke its immediate action. Apart from demonstrating that the original action was taken prematurely and without proper investigation, particularly in relation to ozone therapy generally, I regard the investigation as part of the preparation for the review hearing, even if it also had other functions. Further, in this case the investigation revealed that the original action had been taken on a factually incorrect basis, and had been inappropriate, if not misconceived.
• [85] The submissions reviewed the course of the proceeding, and argued that the costs of the proceeding for review did not include the costs of making submissions to the respondent in the course of the investigation, the costs of the application for compensation under s 232 or the costs of the application to join the State of Queensland. I agree with the second and third propositions; but the investigation was closely connected with the review proceedings, as I have noted, and correspondence during (or indeed before) a proceeding written with a view to attempting to resolve the dispute, or to persuade the other side to back down, has in more recent times generally been regarded as part of the costs of a proceeding.[40]
• [86] As to whether the respondent relied on false, incomplete and substantially flawed materials in the original decision, the material which subsequently became available demonstrated that the proposition that the applicant had injected gas into the patient's spine was not correct, and there was no reliable basis to contradict the applicant's assertion that he had not done so. The basis for this supposition, the gas visible on the scan, proved not to be a reliable foundation for it. Taken at face value, it might have provided a reasonable basis for an investigation into whether there had really been an injection into the spine, although whether it justified action so urgent there was no time for the show cause notice is another matter. But I regard it as a large step to prohibit ozone therapy generally, without (it appears) even finding out whether such therapy is banned or legal in Queensland, let alone prohibiting the injecting of any substance anywhere. The fact that some immediate action may have a justification does not mean any immediate action is justified.
• [87] At one point it was said that the immediate action was revoked within approximately six months from the decision to impose it, as though that was an achievement on the part of the respondent. That may be quick by the respondent's standards, but it is a very long time for a practitioner in the position of the applicant to suffer a substantial interference with his practice, for which he is not to be compensated. In any case, it is apparent from the information provided by the respondent that it took five of those six months for the respondent to seek information about ozone therapy from someone who actually had some practical knowledge of it.[41] That seems to me to be an essential prerequisite for a reasonable belief that such a therapy must be banned to protect public health or safety.
• [88] I do not accept the respondent's submission that nothing that happened after the application for review was filed is relevant to the question. Apart from anything else, if the investigation had been conducted more efficiently, the costs incurred by the applicant would have been reduced. I regard that as relevant to the interests of justice. There is also the consideration that it required two applications to the Tribunal to get the respondent to give proper disclosure. That must also be relevant to what the interests of justice require.
• [89] The respondent may have relied on the assertion of the neurosurgeon that the patient had suffered unexpected complications as a result of the treatment, but that was not in fact the case. It is clear enough from all of the material that the patient did not end up in an emergency department because his condition had deteriorated after the applicant's treatment; he was sent there by the GP who had ordered the scan because of the results of the scan and the report of the radiologist. From the point of view of the applicant, this was an error in the basis of the immediate action, and, among others, a justification for the application to have the action reviewed. I have already dealt with the substance of the other submissions for the respondent.

• [90] There are therefore a number of factors which support a conclusion that in this case the interests of justice require that an order for costs be made:

(a) This was a case where the applicant had a right to legal representation.

(b) The respondent did not accord the applicant natural justice, and at least to some extent, the justification for not doing so was doubtful.

(c) The respondent acted precipitately, and the conditions imposed appear to have been too wide. Because of this, and because there were contested factual matters in the justification offered for the action in the notice to the applicant, an application to the Tribunal to review the conditions was invited.

(d) The respondent's case was weak from the start, and as more investigation was carried out, it became weaker.

(e) The respondent's investigation was slow, and particularly took a long time to obtain relevant expert evidence.

(f) During the proceeding the respondent did not make proper disclosure, requiring two applications to the Tribunal.

(g) There was nothing done by the applicant which invited the respondent's action, nor was he given the opportunity to assist the respondent prior to the action being taken.

(h) If this were a matter in a court, it would fall into the category of cases where the respondent, after litigating for some time, effectively surrendered to the applicant, and so would have to pay the costs. That I consider is the proper categorisation of the matter: the respondent acted without a thorough investigation, and further investigation revealed the respondent's action to have been unjustified. There never was in fact a serious risk to the health or safety of the public.

• [91] I appreciate that the respondent should not be deterred from taking action promptly on the basis of a plausible allegation that a practitioner has acted in a way which suggests that, unless restrained, the practitioner poses a serious risk to the health or safety of the public, just because it turns out on investigation that that concern was unjustified. But I consider that the position is different if concern about the practitioner's doing X results in the prohibition on doing Y and Z, where there is no proper justification for concern about Y and Z, and where a prohibition on doing Y and Z causes significant disruption to the practitioner's practice which would not have been caused just by a prohibition on doing X. It would be no bad thing for the respondent to be deterred from behaving in that way.
• [92] In all the circumstances I consider that in this matter the interests of justice do require that the Tribunal make an order for costs, that the respondent pay the applicant's costs of and incidental to the application for review. It would be unjust in the circumstances for the applicant to be left to bear his reasonable legal costs of seeking to challenge the respondent's action. Those costs should include the costs of correspondence seeking to persuade the respondent to drop or modify the conditions imposed, or to respond to demands for information in the course of the respondent's investigation, and prima facie the costs of the applications to the Tribunal concerning disclosure. The application for joinder, which was unsuccessful, is however in a different category. That application failed, and ought to have been seen as unpromising from the beginning, although not unarguable. If the applicant is to have the benefit of a costs order in the proceeding generally, some allowance should be made for the respondent's costs of this application. When a costs order is made, the QCAT Act encourages a broad brush approach to questions of costs, and I therefore consider that, instead of making an order in the respondent's favour for its costs of that application, I will simply not allow the applicant his costs of the second application for disclosure, as an off-set.
• [93] The next issue is whether costs should be awarded on the indemnity basis, as sought by the applicant. The starting point is that, at least in courts, costs on the standard basis is the usual position for awarding costs as between parties to litigation, and costs on the indemnity basis are reserved for cases where there has been improper or unreasonable behaviour on the part of the party liable for costs: Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225. There is authority that costs on the indemnity basis should not be too readily awarded, just because there is some conduct of which a court disapproves, or which disadvantages the other party: Di Carlo v Dubois [2002] QCA 225 at [40]. In that decision, the Court adopted a statement in Rosniac v Government Insurance Office (1997) 41 NSWLR 608 at 616, that "party and party costs remain the norm, although it is common knowledge that they provide an inadequate indemnity."[42]
• [94] In LPD Holdings (Aust) Pty Ltd v Phillips [2013] QCA 305 the Court said at [22] that "the justification for an award of indemnity costs continues to require some special or unusual feature of the particular case." That wording is uncomfortably close to the test for awarding costs at all under s 102, but I do not think it follows that the fact that the Tribunal considers that the interests of justice require an order for costs is sufficient to justify an order that they be on the indemnity basis. Rather, I consider that standard costs remains the norm for the Tribunal in those cases where it does make a costs order, and that costs on the indemnity basis should be confined to those cases which really come within the principle in Colgate-Palmolive Co.[43]
• [95] The applicant's submissions in this regard certainly tax the respondent with unreasonable conduct and misbehaviour, but generally in relation to the original decision, and the conduct of its investigation, rather than the conduct of the proceeding, which is usually the focus of an application for indemnity costs. The respondent's position about disclosure, although unsuccessful, was on the whole reasonably arguable, and I do not think there has been any unreasonable conduct of the respondent in the course of this proceeding. Overall I do not consider that the circumstances of this case justify an order for costs on the indemnity basis.
• [96] Accordingly, the order will be that the respondent pay the applicant's costs of and incidental to the proceeding, including the first application about disclosure but not including the applications decided by Deputy President Allen QC, on the standard basis. The applicant's material about costs does not permit me to quantify those costs; it was put forward in a form which assumed that all costs would be awarded, and on the indemnity basis. I will give the applicant the choice of an order that the respondent pay the costs as assessed by a costs assessor, or, if the applicant provides a costs statement in the conventional form, I am willing to assess those costs myself.
• [97] The respondent submitted that the costs should be on a magistrates court scale. But an application for review of this nature is under the Act to be decided by a judicial member of the Tribunal, which means a judge of the Supreme or District Court, or a retired judge of one of those courts. In practice these days such matters are decided by the Deputy President, a District Court judge, or a retired District Court judge, such as myself. In those circumstances it is appropriate for the costs to be on the scale for a District Court matter.
• [98] The applicant also claimed what he called out of pocket expenses. Most of these are not legal costs in the conventional sense, and so cannot be recovered by an order under s 102; but the two large ones are the filing fee when filing the application in the Tribunal, which is recoverable, and the cost of obtaining the expert evidence from the American expert about ozone therapy, which I consider is also a recoverable cost even if it was paid by the applicant rather than by his solicitors.
• [99] For those reasons, I order that the respondent pay the applicant's costs of and incidental to the proceeding, including the application for disclosure decided on 27 December 2018, but not of the applications made by the applicant decided on 3 May 2019, to be assessed on the District Court scale applicable at the time, on the standard basis. The amount of those costs may be agreed by the parties, but if not, I will order that they be assessed by a costs assessor unless the applicant asks that I assess them, in which case I will give further directions, including for the filing and service of a costs statement.

[1] By a further notice dated 4 July 2018 the respondent advised that the investigation into his conduct had been closed, and no disciplinary proceeding would be taken: Affidavit of applicant filed 3 August 2018 para 7.

[2] The same approach was adopted, and the same result followed, in McEwan v Barker Builders Pty Ltd [2010] QCATA 49, another decision of his Honour.

[3] See for example Queensland All Codes Racing Industry Board v Abbott (No 2) [2016] QCATA 49 at [6]; Marshall-Holst v Office of the Information Commissioner [2017] QCAT 70 at [17], [18]; Nursing and Midwifery Board of Australia v Laughlan (No 2) [2019] QCAT 250 at [8]; Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327.

[4] The Explanatory Note for the Bill which became the QCAT Act said relevantly at p 52: "Clause 100 provides that, subject to this Act or an enabling Act, the general rule is that each party must bear their own costs for the proceeding....Clause 102 enables the Tribunal to award costs against a party if the Tribunal considers the order is in the interests of justice." There was no reference to Tamawood, and even the word "require" was not reproduced.

[5] Tamawood Ltd v Paans [2004] QDC 427.

[6] That was the error I made in Tamawood.

[7] For the history of this, see Health Ombudsman v Antley [2016] QCAT 472 at [55] - [59]. At [63] - [83] Mr Thomas discussed helpfully the application of the QCAT Act provisions to disciplinary proceedings against health practitioners of the usual kind, and concluded that in that case no costs order was required in the interests of justice. That approach has been commonly followed since, although it can be departed from: Health Ombudsman v Armstrong (No 2) [2019] QCAT 254.

[8] There was an earlier appeal, Medical Board of Australia v Alroe [2016] QCA 120, but in that matter the parties agreed that the Tribunal had applied the wrong test, and there was no analysis of the test.

[9] The patient maintained that his back was not worse since the ozone therapy, and that he had obtained the scan because of the problems with his back existing before that therapy was applied.

[10] Apparently because he was concerned about the gas in the lumbar canal, and what it might mean. The report of the radiologist was concerning.

[11] This was a notice advising that the respondent had decided (as was the case) to investigate a complaint that he had provided inappropriate treatment to the patient. It was not a notice under s 59.

[12] The patient did not, and I expect could not, say whether the injections were actually into his spine.

[13] Sic. Presumably the word "not" was inadvertently omitted.

[14] Queensland Civil and Administrative Tribunal Act 2009 s 19(c), 20. It follows that on a review I would not be concerned with whether there was any error on the part of the respondent in its decision: Allesch v Munch [2000] HCA 40; (2000) 203 CLR 172 at [23].

[15] Pearse v Medical Board of Australia [2013] QCAT 392 at [36].

[16] Indeed, confining it to the spine may have been too narrow, since there was a risk in injecting gas into a vein or artery, producing the risk of embolism. A measured response to the risk might have been to prohibit the injection of any gas anywhere except into a muscle.

[17] I have not located anything in the material showing that the use of ozone therapy is banned in Queensland, and there is evidence that it is not. I expect that if it were banned, the respondent would have mentioned it.

[18] The applicant's solicitor said that the applicant answered questions he was asked that day: affidavit filed 3 August 2018 paragraph 26.

[19] No such notice in referred to in the chronology exhibited to the affidavit of Martin sworn 25 September 2018, or in the affidavit of the applicant's solicitor affirmed 27 July 2018 paragraph 23, although it appears to me that one ought to have been given.

[20] Affidavit of applicant's solicitor affirmed 27 July 2018 paragraph 42.

[21] The respondent investigated these, and decided to take no action on them.

[22] The patient also engaged a solicitor, and made a complaint against the respondent.

[23] Affidavit of Martin sworn 25 September 2018 Exhibit SM1.

[24] Said to be an American expert on the use of ozone therapy.

[25] Affidavit of applicant filed 3 August 2018 para 9. He said he had never before been the subject of such a complaint: para 25.

[26] That ozone therapy is not part of Chinese medicine simply meant that the therapy was not applied by him as a practitioner of Chinese medicine, so the Code of Conduct for Chinese medicine did not apply.

[29] Marzini v Health Ombudsman (No 2) [2019] QCAT 111 at [48]. He also held that such a claim could not be brought against the respondent: [46].

[30] Marzini v Health Ombudsman [2018] QCAT 393.

[31] Marzini v Health Ombudsman (No 3) [2019] QCAT 112.

[32] This figure was from the report of a forensic accountant: affidavit of Pont filed 3 August 2018.

[33] As was pointed out by the Deputy President in Marzini (No 2) (supra).

[34] See Colagrande v Health Ombudsman [2017] QCAT 107 at [18].

[35] I note that there is no equivalent, in Division 1 of Part 7, of s 66 of the Act.

[36] And in a decision following assessment of 8 November 2017.

[38] Contrast Medical Board of Australia v Wong [2017] QCA 42.

[39] As occurred in Lee v Medical Board of Australia (supra).

[40] Dal Pont Law of Costs (4th Ed 2018) p 609, [17.8], [17.9]. See also UCPR r 679.

[41] Despite the fact that getting "Expert clinical advice - ozone gas therapy" was identified as an "Initial action to progress the matter" (No 7 of 12) in November 2017: see Respondent's Investigation Plan of 17 November 2017, respondent's material page 112.

[42] Party and party costs was the equivalent then in New South Wales of standard costs.

[43] I do not consider that the effect of QCAT Rule 87 is that when costs are to be assessed they must be assessed by reference to the scale of costs of a court.