Ting v Medical Board of Australia; Ting v Queensland Health [2019] QCAT 192

Gupta v Medical Board of Australia [2015] QCAT 142

Mr R O'Regan of Lander & Rogers for the respondent in OCR076-19

S Munasinghe of Crown Law for the respondent in GAR084-19

[1] Proceeding GAR084-19 is an application pursuant to s 33(2)(c) of the Health (Drugs and Poisons) Regulation 1996 for review of the decision of the delegate of the Chief Executive of Queensland Health to cancel the applicant's endorsements to deal with Schedule 4 and Schedule 8 drugs ("the GAR review").

[2] Proceeding OCR076-19 is an application pursuant to s 94(2)(b) of the Health Ombudsman Act 2013 ("HO Act") to review the decision of the Medical Board of Australia to suspend the applicant's registration as a medical practitioner ("the OCR review").

[3] In light of a commonality of issues in both proceedings, the Tribunal invited submissions from the parties as to whether there should be consolidation or sequencing of the proceedings pursuant to sections 54 or 55 of the Queensland Civil and Administrative Tribunal Act 2009 ("QCAT Act").

[4] Section 54(1) of the QCAT Act provides:

"The tribunal may direct that 2 or more proceedings concerning the same or related facts and circumstances be consolidated into 1 proceeding."

"The tribunal may direct that 2 or more proceedings concerning the same or related facts and circumstances -

(a) remain as separate proceedings but be heard and decided together; or

(b) be heard in a particular sequence."

[6] It seems clear, and the parties do not submit otherwise, that the two proceedings do concern "the same or related facts and circumstances" in that the same circumstances which informed the decision of the delegate of the Chief Executive of Queensland Health to cancel the applicant's endorsements concerning Schedule 4 and Schedule 8 drugs also informed the decision of the Medical Board of Australia to suspend his registration as a medical practitioner. Considerations of savings of time and costs and avoiding duplicity of decisions would clearly favour the proceedings being heard together, whether it be as consolidated or separate proceedings. And it is those considerations which lead the applicant to submit that such a course should be taken. However, both respondents submit that differing legislative requirements as to the constitution of the Tribunal for each proceeding render such a course inappropriate.

[7] In the OCR review, the Tribunal has jurisdiction to review the appellable decision pursuant to s 199 of the Health Practitioner Regulation National Law Act 2009 and section 94(2) of the HO Act. Accordingly, by reason of the definition of "disciplinary proceeding" in Schedule 1 of the HO Act, the OCR review is a "disciplinary proceeding" for the purposes of the HO Act, a "disciplinary proceeding" being defined as a "proceeding for which QCAT has jurisdiction under section 94(1) or (2)".[1] As the OCR review is a "disciplinary proceeding", the Tribunal must be constituted by a judicial member for the hearing: section 97 of the QCAT Act. Further, in conducting the hearing, the Tribunal must be assisted by one assessor chosen from the public panel of assessors and two assessors chosen from the professional panel of assessors for the applicant's profession.[2] Section 127 of the QCAT Act provides as follows:

(1) The function of an assessor in a hearing of a disciplinary proceeding is to sit with the tribunal and advise the tribunal about questions of fact.

(2) To enable an assessor to perform the assessor's function, the assessor may, during the hearing -

(a) ask questions of a witness before the tribunal; and

(b) discuss any question of fact with a lawyer or other person appearing for a party at the hearing."

[8] As regards the GAR review, the constitution of the Tribunal is in accordance with s 165 of the QCAT Act. Whilst there is no requirement that the Tribunal be constituted by a judicial member, there is no impediment to such and in this matter it is appropriate that the Tribunal hearing the matter be constituted by the same judicial member hearing the OCR review. Importantly, there is no provision for the Tribunal to be assisted by assessors in hearing the GAR review.

[9] There is thus a fundamental difference in how the hearings of the OCR review and the GAR review must be conducted. In hearing the OCR review, the Tribunal must be assisted by assessors who will sit with the Tribunal and advise the Tribunal about questions of fact and, to do, so may ask questions of a witness and discuss questions of fact with a lawyer appearing for a party at the hearing. In hearing the GAR review, there is no legislative warrant for the involvement of assessors in the hearing. It is for this reason that the respondents submit that the proceedings should not be heard together but should be heard in a sequence so that the GAR review be heard first with the Tribunal in that hearing uninfluenced by any views the assessors might express in the course of their assistance in the OCR review.

[10] I accept the force of the respondent's submissions. I acknowledge that the objects of the QCAT Act include having the Tribunal deal with matters in a way that is economical, informal and quick[3] and the Tribunal must ensure proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent in achieving justice.[4] I have considered the terms of s 28 of the QCAT Act. I do not consider that s 28(3)(c), which permits the Tribunal to inform itself in any way it considers appropriate in conducting a proceeding, would, in the absence of any specific legislative warrant to do so, permit the Tribunal to be informed by assessors in the GAR review. I am of the view that to permit the involvement of assessors in the GAR proceeding would constitute a fundamental irregularity in the conduct of the hearing. This could not realistically be avoided by the Tribunal striving to confine consideration of the advice of the assessors to the OCR review only. Whilst the Tribunal would in fact benefit from the assistance of assessors in the GAR review and a combined hearing would have a desirable saving of costs and the time of the parties and the Tribunal, I am of the view that the legislation does not permit such a course.

[11] Accordingly, the Tribunal orders that, pursuant to s 55 of the Queensland Civil and Administrative Tribunal Act 2009, proceedings OCR176-19 and GAR084-19 are to remain as separate proceedings and are to be heard in a particular sequence, with proceeding GAR084-19 being heard first and proceeding OCR176-19 being heard later.

[1] See also Gupta v Medical Board of Australia [2015] QCAT 142 at [26].