YBCG v Health Ombudsman

(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 matters relevant to the factors contained in (a), (c) and (d):[8]

(a) The HO's submissions in the review proceeding varied significantly from the initial reasons for imposing the immediate action;

(b) It was expert evidence which the HO obtained some months after the immediate action decision that was the subject of the review which, objectively, placed significant doubt on the veracity of Patient B's factual account as set out in [31]-[33] of the Review Decision (noting that, at all times, the practitioner contested Patient B's account);

(c) The practitioner's proposal of alternative immediate action conditions focusing on education made in correspondence in March 2024,[9] as a compromise to determine the proceeding without a final hearing was not unrealistic, particularly in circumstances where the Tribunal ultimately determined that the risks which were established were not serious risks so as to require action to be taken;

(d) Having decided, however, to double down on defending immediate action which imposed a gender condition on the basis of a pattern of conduct involving more than one patient but focused specifically on Patient A as supported by Patient B,[10] the HO then refused to make Patient A available for cross examination. In the particular circumstances of this matter that was unhelpful to the practitioner in the conduct of his case as it raised the need for legal argument about the approach to be taken in determining the review. It was also unhelpful to the assessment the Tribunal had to make for the reasons set out in the Review Decision.[11]

• [6] Taking these matters into account, the Tribunal finds that they weigh in favour of requiring a costs order to be made in the interests of justice.
• [7] As to (b), the proceeding involved dense factual material, particularly concerning Patient B, and expert opinion. Whilst not as complex as some review matters, the nature and complexity of this proceeding weighs in favour of requiring a costs order to be made in the interests of justice.
• [8] As to (e):

(a) The practitioner's unchallenged evidence was:[12]

(i) that at the start of 2023, prior to the immediate action conditions being imposed, 62% of his clients were female and based on the established referral pathways for his practice, approximately 75% of his referrals in time recent to when he made his affidavit, were female;

(ii) he had continued treating male patients by telehealth consultations but by reason of the immediate action conditions, he had been unable to treat female patients by telehealth whilst he was travelling in 2023. Had he been able to do so, this would have reduced the impact on his practice;

(iii) he was in significant financial stress, selling long term investments and borrowing funds to manage and meet legal costs until he could rebuild his practice;

(b) He funded the litigation, not an insurer;

(c) Accepting that the financial impacts of the immediate action conditions and the review proceeding are relevant considerations, the HO submits these matters do not support an order for costs because:

(i) there was not a total ban on treating clients and in any case the practitioner was travelling around Australia with his family for 12 months;

(ii) the practitioner's delay in filing the proceeding, getting his submissions and his evidence completed showed a lack of urgency which was substantially attributable to rebuilding his practice;

(d) The HO's submissions do not address the fact that the practitioner was continuing to work whilst travelling and, by reason of the immediate action conditions, was substantially limited in the clients he could take. Delay in progressing the review may be a factor telling against an award of costs. In this case, though the evidence is that the practitioner was selling long term shareholdings and borrowing funds, inter alia, to meet legal costs, which gives rise to an inference that delay might be explained in part, at least, by financial difficulties caused, in part, by the immediate action conditions;

(e) Overall, this factor tells in favour of requiring a costs order to be made in the interests of justice.

• [9] As to (f) and the role of legal representation, deciding to take disciplinary action against a practitioner is serious, given both matters of public interest and safety and the potential to affect a person's professional standing, reputation and finances which is recognised by the express entitlement to legal representation conferred by the QCAT Act in a matter of this type.[13] The HO accepts that legal representation was appropriate in a review of this kind and is a factor which weighs in favour of an order for costs, but submits it is not the determinative consideration as most cases of this kind will involve an entitlement to engage representation and contested allegations of fact.[14] I accept that this, alone, is not the determinative consideration, but it is a significant consideration where there are dense factual matters and expert evidence involved (as there were concerning Patient B), there was significant dispute between the parties and the implications for the practitioner were serious in terms of his professional reputation and ability to earn a livelihood.
• [10] As the above shows, I have concluded that a number of the relevant factors weigh favourably in the balance of requiring an award of costs in the interests of justice.
• [11] The HO submits that if an order for costs is to be made, it should be limited to the period from the date of the offer in March 2024, which was made once the evidence had been filed. I do not accept this submission: the initial and substantial expert opinion referred to in the Review Decision was provided in January 2024, some time prior to the offer being made. Further, even prior to the immediate action decision being taken, the practitioner had offered an enforceable undertaking to complete education.
• [12] For the foregoing reasons I will make an order that the HO pay the practitioner's costs of and incidental to the proceeding on the standard basis, to be assessed on the District Court scale of costs if not agreed.

[1] YBCG v Health Ombudsman [2024] QCAT 516 ('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].

[8] Approached in the HO's submissions under the convenient heading Procedural Fairness or Disadvantage.

[9] Noting also that he had offered to enter into an enforceable undertaking to undertake education related to the scope of proper professional relationships between practitioners and patients in his response of 14 April 2023 to the proposal to take immediate action: Hearing Brief filed 25 March 2024, 127-132 ('Hearing Brief').

[10] See Review Decision (n 1) 9 [31(b)] for a summary.

[12] Hearing Brief (n 9) 534-535. The statistical profile of the gender of the clients of his practice in 2023 was set out in the practitioner's response to the HO's proposed immediate action made in March 2023 and, as such, the HO was aware of the impact the immediate action decision would have on his practice from before it was made: Hearing Brief (n 9) 128.

[14] HO's submissions on costs filed 10 January 2025, 1 [7].