Medical Board of Australia v Wong [2017] QCA 42

SUPREME COURT OF QUEENSLAND

CITATION: Medical Board of Australia v Wong [2017] QCA 42

PARTIES: MEDICAL BOARD OF AUSTRALIA / (applicant) / v / KEVIN ROBERT WONG / (respondent)

FILE NO/S: Appeal No 7297 of 2016 / QCAT No 142 of 2014

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act / Appeal Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT: Queensland Civil and Administrative Tribunal – [2016] QCAT 112

DELIVERED ON: 17 March 2017

DELIVERED AT: Brisbane

HEARING DATE: 14 November 2016 Further written submissions: 28 February 2017 Further written submissions: 7 March 2017

JUDGES: Morrison and McMurdo JJA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Extend the time for making the application for leave to appeal to 22 July 2016.Grant leave to appeal.Allow the appeal.Set aside the orders for costs made by the tribunal on 21 June 2016.Order that there be no order for costs in the proceeding in the tribunal.Order the respondent to pay the applicant’s costs of the proceeding in this Court.

CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where QCAT departed from the default position in section 100 Queensland Civil and Administrative Tribunal Act 2009 (Qld) that each party bear its own costs – where the tribunal failed to make a finding as to whether the moving party was required by statute to refer the matter to the tribunal – where the tribunal accepted expert evidence as conclusive of an ultimate question – where the tribunal concluded that a party’s position was not ‘wholly unreasonable’ but failed to identify any unreasonableness justifying departure from the default position – whether the Court should extend time for applying for leave to appeal –whether the Court should grant leave to appeal – whether the primary judge erred in law by not recognising the mandatory nature of a statute requiring a party to bring proceedings in the tribunal – whether the primary judge erred in law by accepting expert evidence as conclusive rather than making a value judgment based on that evidence – whether a tribunal may depart from the default position that each party bears its own costs absent a specific finding of unreasonableness / Health Practitioner Regulation National Law (Queensland), s 5, s 193, s 196 / Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 149, s 151 / Medical Board of Australia v Wong [2015] QCAT 439, related

COUNSEL: I Freckelton QC, with C Wilson, for the applicant / G W Diehm QC for the respondent

SOLICITORS: Lander & Rogers for the applicant / K&L Gates for the respondent

MORRISON JA: I have read the reasons of Philip McMurdo JA and agree with those reasons and the orders his Honour proposes.

PHILIP McMURDO JA: The applicant Board has the regulatory functions for the medical profession which are prescribed by the Health Practitioner Regulation National Law (Queensland) (the National Law).¹ In that capacity the Board referred to the Queensland Civil and Administrative Tribunal (QCAT) the matter of the ongoing registration of the respondent, Dr Wong, as a medical practitioner. The outcome in QCAT was that by a decision delivered on 21 June 2016, Dr Wong remained registered but subject to the conditions which the tribunal then imposed. In that same decision, the Board was ordered to pay Dr Wong’s costs of that proceeding, in part upon an indemnity basis.

The Board applies for leave to appeal to this Court against those orders for costs. Its application for leave to appeal was filed a few days late but an extension of time is not opposed. The application for leave has been argued as on an appeal. The real questions here are whether QCAT erred in exercising its discretionary powers in the making of any order for costs and, if not, in making an order for indemnity costs.

For the reasons that follow, QCAT did err in making any order for costs against the Board and leave to appeal should be granted, the appeal allowed and the orders for costs set aside.

The background facts

Dr Wong is a medical practitioner in general practice. He has long suffered from a psychotic disorder which resulted in his voluntarily surrendering his practising rights for a time in 1998. The Medical Board of Queensland subsequently concluded that Dr Wong was fit to return to practice if he was subjected to conditions which included ongoing psychiatric treatment and monitoring by that Board. One of those conditions was that he continue to take medication as prescribed by his treating psychiatrist. In 2003 those conditions of his registration were removed. By 2008 he was no longer seeing a psychiatrist on a regular basis and by the end of 2011, he had ceased to take his medication.

In July and August 2012, Dr Wong sexually assaulted 18 of his patients and another person who was employed in his practice. He was charged with 27 counts of criminal sexual assault. According to a report in December 2012 by Dr Grant, psychiatrist, Dr Wong had suffered a relapse in psychotic symptoms, which were the explanation for the assaults, because he had failed to maintain his medication. In November 2013, the Mental Health Court found that at the time of the assaults, Dr Wong was suffering from an unsoundness of mind which deprived him of the capacity to know that he ought not to do the acts in question. Accordingly the criminal charges were not pursued.

As a result of that sexual misconduct, the Board resolved to suspend Dr Wong’s registration in August 2012. He remained under suspension when the Board referred the matter of his ongoing registration to QCAT. In its application dated 30 June 2014, the Board stated that it reasonably believed, under s 193(1)(a)(i) of the National Law, that Dr Wong’s sexual misconduct constituted “professional misconduct”, or alternatively, “unprofessional conduct”, as those terms were used in the National Law.

The relevant disciplinary regime

The National Law was modified by the Health Ombudsman Act 2013 (Qld) with effect from 1 July 2014. It was on that date that the Board filed its application in QCAT. However in QCAT and in this Court it has been common ground that the terms of the National Law, as in force immediately prior to 1 July 2014, applied.² It was upon that premise that QCAT determined the question of costs and this Court is asked to review that judgment. I will therefore refer to the National Law as it was before the amendments which took effect on 1 July 2014.

Section 193 of the National Law relevantly provided as follows:

“193Matters to be referred to responsible tribunal

A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if –

for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason –

the practitioner has behaved in a way that constitutes professional misconduct;

…

The National Board must –

refer the matter to –

the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred …”.

QCAT was the “responsible tribunal”. The term “professional misconduct” is defined in s 5 of the National Law as follows:

“professional misconduct, of a registered health practitioner, includes –

unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.”

The term “unprofessional conduct” is defined by s 5 relevantly to mean:

“professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers …”

By s 196 of the National Law, QCAT was empowered to decide, relevantly, whether Dr Wong had engaged in professional misconduct, unprofessional conduct or that he had an “impairment”, an expression defined by s 5 to mean:

“impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect –

for a registered health practitioner or an applicant for registration in a health profession, the person’s capacity to practise the profession …”.

By s 196(2) of the National Law, if the responsible tribunal makes a finding of professional misconduct or unprofessional conduct or of an impairment, the tribunal may, amongst other things, cancel or suspend the practitioner’s registration or impose conditions upon that registration.

As s 193(1) provided, if the Board reasonably believed that Dr Wong had engaged in professional misconduct, the Board had to refer the matter to the responsible tribunal. But absent such a belief, under s 178 of the National Law it could itself take action against the practitioner, including the imposition of conditions upon the practitioner’s registration.

The proceeding in QCAT

Dr Wong was obliged to file a response in QCAT to the Board’s application, which he did on 18 December 2014. He admitted the facts of his sexual misconduct. But he contended that it was a consequence of his mental illness. He denied that he had behaved in a way that constituted professional misconduct or unprofessional conduct, because his conduct was the consequence of his “longstanding psychiatric condition of schizoaffective disorder or schizophrenia which was first diagnosed in 1998”.

That response was preceded by a letter from Dr Wong’s lawyers to the Board’s lawyers, dated 9 December 2014, which was headed “Without Prejudice Save As to Costs”. The letter contended that because of Dr Wong’s mental illness, none of his misconduct could have been professional misconduct or unprofessional conduct. It was argued that the Board ought not to have proceeded with the matter as it did because the issue was what should be the consequence of Dr Wong’s “impairment”. The letter concluded as follows:

“Dr Wong wishes to cooperate with the Board with a view to achieving an appropriate outcome with respect to any further practice of medicine by him in the future. He continues under the care of his psychiatrist. He accepts that he is not yet ready to return to practice, whether under conditions or otherwise. He remains hopeful that he will be in the future. If this matter were dealt with as an impairment matter, one would think that there could be readily obtained a determination that would provide the necessary protection of the public as is required under the legislation but which would facilitate Dr Wong’s return to practice as and when he is able, and subject to appropriate conditions, again as is intended by the legislation.”

On 12 December 2014, the Board’s lawyers replied as follows:

“We understand you to say that the current application before QCAT is misconceived on the basis that the Board will not, as a matter of law, be able to establish that your client engaged in professional misconduct. Our client’s position is that the proceedings are properly brought and your client can be found guilty of professional misconduct.

If your client wishes to agitate this point any further, then we invite him to bring an application to have the current proceedings struck out. …”.

In February 2015 Dr Wong’s lawyers disclosed a number of medical reports about him, resulting in an agreement between the parties that Dr Wong should be assessed by another psychiatrist. Dr Harden, psychiatrist, provided that opinion on 26 June 2015. He reported that:

Dr Wong suffered from chronic schizophrenia.

Dr Wong required life long treatment with antipsychotic medication and life long follow‑up by a specialist psychiatrist.

Dr Wong was fit to practise competently and safely, albeit in a graduated and limited way under supervision.

If Dr Wong were to stop taking his antipsychotic medication he would suffer a psychotic relapse quite quickly.

The Board’s referral came before QCAT constituted by Horneman‑Wren SC DCJ , the then Deputy President. The hearing commenced by counsel for the Board handing up an amended referral, which alleged that Dr Wong suffered from a mental impairment, specifically schizophrenia. His Honour asked whether that allegation was “in lieu of the misconduct referral”, to which counsel answered in the negative, saying that “[i]t’s open to the tribunal … to make a finding of misconduct together with, or alternatively [to] an impairment.”³ Counsel added:

“I have come prepared to address you at some length on whether, amongst other things, professional misconduct in accordance with the definition necessarily involves any degree of – has to necessarily involve any degree of intent or moral blameworthiness … . And if it’s the case that the evidence establishes conduct which would satisfy the definition, but also the presence of a condition which would constitute an impairment, then it’s open to the tribunal to find professional misconduct and also an impairment. It would also be, in those circumstances, open to the tribunal to find impairment but not professional misconduct, even though [professional misconduct] may have been made out if there were to be no utility in such a finding.”⁴

At that hearing each party provided written submissions as well as oral argument. In the Board’s written submissions it sought a finding that Dr Wong had an impairment and an order that his registration be cancelled. It contended that even “close and careful monitoring” could not ensure public safety in his case. The submissions referred to Dr Harden’s report and to his opinion that a feature of Dr Wong’s condition had been a belief by Dr Wong that he no longer required treatment or medication. In those circumstances, the submission was that the extent of the risk of further misbehaviour was too great and that the public should be protected by an order for the cancellation of Dr Wong’s registration. The written submissions also stated:

“The applicant does not seek a finding of professional misconduct, although such a finding would be available against the respondent on the basis of his conduct. The third limb of the definition of ‘professional misconduct’ appearing in the National Law identifies conduct that is inconsistent with the practitioner being a fit and proper person to hold registration. A finding that a person is not a fit and proper person is, it is submitted, not dependent on findings of moral blameworthiness. Mental illness does not prevent conduct which would otherwise amount to unprofessional conduct ceasing to be such, although it may be very relevant to the disciplinary measures imposed.”⁵

The written submissions for Dr Wong to QCAT accepted that he was under an impairment, but one which could be adequately managed. It was submitted that the proceeding in QCAT had been unnecessary because the Board could have taken its own action. It was submitted that it was “only open to the Board, so far as is relevant here, to make such a referral [to QCAT] where it reasonably believed that there had been ‘professional misconduct’” and that having regard to what had been established before the referral as well as the evidence otherwise available, “the Board would not have properly come to the conclusion that there had been conduct of such a nature and should have dealt with the matter as an impairment case.” The submissions suggested some conditions of his ongoing registration.

In a decision delivered on 16 September 2015, Horneman‑Wren SC DCJ held that Dr Wong had an impairment but not which warranted cancellation or suspension of his registration. His Honour ordered the parties to formulate proposed conditions of his ongoing registration. It should be noted that his Honour rejected another argument which had been made for Dr Wong, namely that because his conduct had been the subject of criminal proceedings, the Board’s referral to QCAT based upon that conduct had been prohibited by the orders of the Mental Health Court.⁶

His Honour discussed the medical evidence, including that of Dr Harden, and held that it was clear that a finding of an impairment should be made. He noted that the Board did not seek a finding of professional misconduct, although it had submitted that such a finding would be available under the third limb of the definition. His Honour noted that by arguing only upon the basis of that third limb, the Board had not maintained its case of professional misconduct. His Honour’s opinion was that Dr Wong’s conduct was not inconsistent with him being a fit and proper person to hold registration although at the time at which the conduct occurred, “he was not then a fit and proper person to be engaged in practice” (which he said was not the test).⁷

In rejecting the Board’s submission that QCAT should cancel Dr Wong’s registration, his Honour said:

“The medical evidence establishes that that risk [of relapse] is minimal. The mere fact that Dr Wong relapsed in the past does not establish, of itself, a risk or probability that he will again relapse in the future. Nor does the fact that his forming a misguided belief that he no longer requires treatment is caused by his condition itself establish that such a belief will be formed and acted upon in the future.”⁸

His Honour added that this submission by the Board:

“… wholly ignores the medical evidence of his present capacity to practice, particularly that of the Board’s own expert, Dr Harden, who is of the opinion that Dr Wong could now safely and competently return to medical practice in a graduated fashion in a new general practice with other practitioners.”⁹

Importantly for the proposed appeal, there was no finding by his Honour that in the terms of s 193 of the National Law, the Board had commenced this proceeding without reasonably believing that Dr Wong had behaved in a way that constituted professional misconduct. As I have already noted, if the Board reasonably held such a belief when commencing the proceeding, as the Board averred in its filed application, the Board had been bound to refer the matter to QCAT.

The costs decision of QCAT

The subject decision was made after a further hearing in QCAT, this time before Sheridan DCJ as Deputy President. Her Honour had to consider the appropriate conditions to be imposed upon Dr Wong’s registration. The parties had not agreed on those conditions and submissions were made which her Honour resolved substantially in favour of the conditions proposed by Dr Wong. Her Honour noted that the Board was “largely unsuccessful in its submissions as to conditions but in that regard it could not be said that the overall position taken by the Board was wholly unreasonable”.¹⁰

Her Honour then had to decide the question of costs. Each party submitted that the other should pay the costs of and incidental to the proceeding. It was common ground that QCAT’s powers in relation to costs in this case were to be exercised under Part 6, Div 6 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). By s 100, other than otherwise provided, each party to the proceeding was to bear that party’s own costs. That was subject to the exercise of QCAT’s power to order a party to pay costs under s 102, which relevantly provides:

“102Costs 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.

…

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 …”.

Her Honour noted that in the earlier hearing, the Board, having alleged professional misconduct or alternatively unprofessional conduct, had not sought a finding in either respect although it had submitted that a finding of professional misconduct was available. Her Honour said that Dr Wong’s position had been “very clearly set out” in the letter from his lawyers of 9 December 2014, confirming his “willingness … to cooperate in the process under the impairment provisions of the National Law that would see appropriate conditions imposed upon his registration.”¹¹ And her Honour added that:¹²

“The position stated in that correspondence was rather perfunctorily dismissed by the Board in correspondence by its previous solicitors dated 12 December 2014.”

Her Honour noted that the Tribunal had rejected the Board’s case that Dr Wong’s registration should be cancelled. She further noted that Horneman‑Wren SC DCJ had rejected that case with the comment that the Board had ignored the medical evidence of Dr Wong’s present capacity to practice, particularly of its own expert.¹³ Her Honour said that having regard to the letter of 9 December 2014 and the findings of his Honour, this was “a case where the award of indemnity costs … requires careful consideration”.¹⁴

Sheridan DCJ said that on the question of indemnity costs, “the focus is on unreasonable conduct on behalf of the party against whom indemnity costs [are] being sought”.¹⁵ Citing Colgate*‑*Palmolive Company v Cussons Pty Ltd,¹⁶ her Honour concluded as follows:

“[43]In this case, the outcome indicates that the proceedings were probably largely unnecessary with the issue of impairment being a matter capable of being dealt with other than through the Tribunal, as Dr Wong’s solicitors had clearly advocated some considerable time earlier.

[44]It is of course possible the parties might still have had to come to the Tribunal if the parties had been unable to agree suitable conditions; but that would have been for a more limited purpose.

[45]Ultimately the Board were largely unsuccessful in its submissions as to conditions but in that regard it could not be said that the overall position taken by the Board was wholly unreasonable. In saying this, I am conscious of the fact that at least until the cross‑examination of Dr Harden, the Board had some expert evidence that justified its position in relation to some of the conditions; albeit that the Board was late in obtaining that evidence and proposed the conditions initially in its absence.

[46]I am also conscious of the fact that this was an unusual case involving very serious consequences for third parties. However, those considerations cannot permit the Board to ignore expert opinion and to dismiss out of hand a reasonable course of action proposed on behalf of a practitioner; particularly where the legislature has carefully created a regime for dealing with practitioners with an impairment.

[47]In these circumstances, the appropriate order is that the applicant pay the respondent’s costs as agreed, or in default of agreement, to be assessed on a standard basis under the District Court scale of costs except for the period from 9 December 2014, being the date of the letter to the solicitors for the Board up until the decision of the Deputy President Judge Horneman‑Wren SC made 16 September 2015, where the costs are to be assessed on an indemnity basis.”

Leave to appeal

The Board requires leave to appeal under s 149 of the Queensland Civil and Administrative Tribunal Act. There are differing submissions as to whether the proposed appeal is against “a cost‑amount decision” as referred to in s 149, which is defined in the dictionary in Schedule 3 of the Act as meaning “a decision of the tribunal about the amount of costs fixed or assessed by it under section 107.” It is unnecessary to resolve that question because it would matter only if the proposed appeal involved a factual question. The alleged errors in the exercise of the discretion in this decision involve questions of law.

Leave to appeal should be granted because, in my conclusion, there is a substantial injustice in these costs orders and also because at least some of the questions raised by the proposed appeal have a potential importance beyond the present case.

Consideration of QCAT’s costs decision

Her Honour made no finding as to whether the Board, when referring the matter to QCAT, held a reasonable belief that Dr Wong’s sexual misconduct had constituted professional misconduct. And as already noted, there had been no finding about that matter by Horneman‑Wren SC DCJ. Absent a finding that the Board had commenced the proceeding without such a belief, there could be no criticism of the Board’s doing so. Moreover if the Board held that reasonable belief, it was bound to bring the proceeding which it did. In my respectful opinion, her Honour erred in law 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. 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.

That same matter should also have been considered in assessing the relevance, on the question of costs, of the correspondence in December 2014. The response by the Board could not be described as perfunctory without a consideration of the reasonableness of the Board’s view that there had been professional misconduct. And the same may be said of her Honour’s criticism of the Board’s dismissal “out of hand [of] a reasonable course of action proposed on behalf of a practitioner”.¹⁷ At that point of the judgment, her Honour said that the Board had then ignored expert opinion. That expert opinion was not identified but it could not have been that of Dr Harden, whose report was requested subsequently and which was provided in June of the following year.

In my respectful opinion, there was also an error in attributing to Dr Harden’s opinion a legal consequence which it did not have. Dr Harden’s opinion was important evidence of the nature and extent of the risk that Dr Wong would relapse. That was highly relevant to QCAT in its consideration of a different question, namely whether the public could be adequately protected by the conditional registration which Dr Wong was proposing. It required a value judgment by QCAT which was not simply a question of psychiatric opinion. Similarly, it must be said that one comment by Horneman‑Wren SC DCJ may have suggested that Dr Harden’s opinion was conclusive on the ultimate question of whether Dr Wong’s registration should remain. But as Dr Harden’s opinion was not conclusive on the ultimate question, the Board could not be fairly criticised for continuing to prosecute a case for deregistration after receipt of that opinion.

As to the Board’s conduct after the 2015 decision, her Honour found that the position taken by the Board was not “wholly unreasonable”. 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.

In these respects, the exercise of QCAT’s discretion in ordering costs, moreover in part on an indemnity basis, miscarried. The parties agreed that in the event that this Court reached that conclusion, this Court could exercise the discretion. Clearly that would be a less expensive and more expeditious course than remitting the matter to QCAT.

Absent a finding, which this Court was not asked to make, that the Board’s characterisation of Dr Wong’s conduct as professional misconduct was unreasonable, there can be no proper criticism of the Board for bringing and prosecuting this proceeding as it did. No finding was sought here that the Board acted in bad faith. 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.

In this Court the Board does not seek an order for its costs in QCAT. In my opinion the appropriate outcome is that which is according to s 100, there being no circumstances warranting a different order.

Orders

I would order as follows:

Extend the time for making the application for leave to appeal to 22 July 2016.

Grant leave to appeal.

Allow the appeal.

Set aside the orders for costs made by the tribunal on 21 June 2016.

Order that there be no order for costs in the proceeding in the tribunal.

Order the respondent to pay the applicant’s costs of the proceeding in this Court.

MULLINS J: I agree with Philip McMurdo JA.

Footnotes

1. The functions are prescribed by s 35 of the National Law which has force in Queensland under the Health Practitioner Regulation National Law Act 2009 (Qld) as modified by that Act. ↩

2. In this Court each party submitted that if, immediately prior to 1 July 2014, the Board was obliged to refer Dr Wong’s conduct to QCAT, that remained the case after the amendments to the National Law, by the operation of s 34 of Schedule 7 of the National Law. ↩

3. T1-3, AB 3. ↩

4. T1-4, AB 4. ↩

5. The written submissions citing for that last proposition Legal Practitioners Conduct Board v Ardalich (2005) 243 LSJS 145; [2005] SASC 478 and Medical Board of Queensland v DAP [2008] QCA 44. ↩

6. That argument being made upon the basis that, by s 281(1)(b) of the Mental Health Act 2000 (Qld), the findings of the Mental Health Court precluded any “further proceedings … against the person for the act … constituting the offence”. ↩

7. Medical Board of Australia v Wong [2015] QCAT 439 at [86]. ↩

8. Medical Board of Australia v Wong [2015] QCAT 439 at [98]. ↩

9. Medical Board of Australia v Wong [2015] QCAT 439 at [100]. ↩

10. Medical Board of Australia v Wong [2016] QCAT 112 at [45]. ↩