Wells v Medical Board of Australia

(a) whether a party acted in a way that unnecessarily disadvantages another party to the proceeding;

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

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

(d) during the review proceeding, whether the applicant:

(i) was afforded natural justice by the decision maker; and

(ii) 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; and

(f) anything else the Tribunal considers relevant.

• [5] As to (a) the Board submits this factor is neutral whilst Dr Wells submits he has been disadvantaged in two ways:

(a) Firstly, that the evidence in the section 21(2)(b) bundle was incomplete and heavily redacted which resulted in the omission of material which was favourable to Dr Wells or which demonstrated inconsistency in the evidence against him. As to this, the Tribunal had no regard to the issues involving the patient referred to at paragraph 12 and footnote 8 of Dr Wells' primary submissions, because the Board eschewed reliance on them at the outset of the hearing;

(b) Secondly, the Board served an expert report late in the proceeding and indicated an intention to rely upon it, but disavowed reliance on it only at the hearing. Dr Wells suffered some inconvenience (although not substantial inconvenience) in preparing to deal with that report, which ultimately was not necessary.

The Tribunal was frustrated by aspects of the presentation of some of the material. One example was of redacted extracts of interviews of registered health practitioners provided in such a manner that it was not possible to easily determine where and when the alleged conduct occurred. The Tribunal accepts there was some disadvantage to Dr Wells arising from these matters. This factor militates against a costs order being required.

• [6] As to (b) the Board submits the issues raised were complicated, involving questions about his conduct contained in voluminous documents of clinical records. Both parties were represented by experienced counsel. Dr Wells submits the proceeding was moderately complex because there was no oral testimony, no complex issues of fact, no expert evidence and the hearing lasted only one day. He accepts there was voluminous material and that the factual issues carried some degree of complexity. Accepting that this review was not as complex as that in du Toit, the Tribunal finds there was some complexity to the proceeding, in terms of the volume of material and the sheer number of issues in dispute between the parties. This consideration supports a costs order being made.
• [7] As to (c), the Board submits the review application did not have good prospects of success. It contends that Dr Wells was seeking to return to practice cosmetic medicine and cosmetic surgery whilst serious allegations against him in these areas had not been determined. It contends his claim was highly ambitious and that he lost on two separate bases - both risk under section 156(1)(a) and public interest under section 156(1)(c). Conversely, Dr Wells submits his case was reasonably arguable and he had already served a lengthy suspension, he had undertaken substantial education and reflective work, the Board did not rely on a basis it had contended for in the Review Decision, the Tribunal did not uphold a serious risk arose from one of the factors the Board had relied on and some material was supportive of him. It was reasonable for Dr Wells to seek review of the Board's decision considering these matters and the already lengthy investigation which had no timeframe for conclusion. The Tribunal observes that whilst not every ground was upheld, the Tribunal upheld the Review Decision. This factor tells in favour of a costs order being made.
• [8] As to (d) the Board submits it afforded Dr Wells procedural fairness when it made the decision pointing to the fact that when it imposed the conditions, it had agreed to remove the suspension of his registration. Whilst accepting the Board ultimately afforded him natural justice, Dr Wells submits that the Board produced records of interview of 13 nurses only seven days before the reconsideration decision, despite the last of those interviews having occurred a year prior to them being provided. The Tribunal regards this as neutral in the context of this proceeding.
• [9] As to (e), the Board submits it is a statutory authority, which was not the moving party, and any indemnified costs for the Board are ultimately paid, at least indirectly, by the registration fees of persons registered in the medical profession, being Dr Wells' peers. Dr Wells submits there is no direct evidence of his financial circumstances, but it is uncontroversial that his primary source of income was as a medical practitioner, his registration was suspended for two years and he has not worked as a medical practitioner since July 2022. Dr Wells submits this consideration is neutral.
• [10] The Tribunal notes Dr Wells could have filed material about his financial circumstances or disclosed whether his medical indemnity insurer was supporting his review. He did not do so. The Tribunal observes that if an insurer is funding Dr Wells' involvement in the proceeding, ultimately the cost will be shared across those who carry professional indemnity insurance, if indirectly, as contributing to an actuarial factor in determination of premiums paid by those who are insured with it, again likely including Dr Wells' peers. On the material before the Tribunal, the Tribunal regards this as a neutral factor.
• [11] As to (f), the Board submits the underlying conduct was very serious, it was appropriate for the Board to treat it as such, the Board acted proportionately in removing the suspension and imposing limitations on Dr Wells' practice of cosmetic medicine and cosmetic surgery, Dr Wells commenced the proceeding without any significantly new material, to remove entirely or reduce the effective control on his practice of cosmetic medicine or cosmetic surgery, this would have been a wholly unreasonable regulatory response and it is appropriate the Board be indemnified for its costs in responding to the proceeding. Dr Wells submits that militating against a departure from the default position are the considerations that the Board's investigation has been protracted, the Board failed to appropriately investigate and consider an issue which they ultimately did not rely on at the hearing (after Dr Wells had done the work for them by obtaining affidavit evidence from a relevant witness) and the Board relied at the Tribunal on a different basis from that in its decision.
• [12] The real matter of significance to the Tribunal's mind is the protracted nature of the Board's investigation. By 16 September 2024 Dr Wells had been getting progress reports for some eighteen months prior to the Review Decision which would not have suggested to him the investigation was progressing.[8] Expert evidence was only served just prior to the hearing. It was only at the hearing that the Board gave an indication of how much longer it anticipated the investigation would take and that further period is still a considerable period. Dr Wells has already served a lengthy suspension and his faith in the investigation process would be legitimately tested, given the contents of the affidavit of another registered health practitioner filed by Dr Wells at the hearing without objection by the Board.
• [13] Action such as that taken by the Board has a very significant effect on an individual practitioner. Whilst the National Law dictates the paramount principle, how the Board communicates about progress in the investigation, and the visible manifestation of progress occurring will be very significant to a practitioner. An apparent lack of progress, without explanation, will be difficult for the practitioner to understand and will heighten the likelihood of action such as that by this practitioner, to review an unfavourable decision.
• [14] Balancing all these factors, the Tribunal determines a costs order in favour of the Board is not required in the interests of justice. It will order that each party bears its own costs of the proceeding.

[1] Wells v Medical Board of Australia [2025] QCAT 366 ('Review Decision').

[2] Application filed in the Tribunal on 13 December 2024.

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100 ('QCAT Act').

[5] Health Ombudsman v du Toit [2024] QCA 235 ('du Toit'), [32].