Zaphir v Health Ombudsman

Health Ombudsman v Antley [2016] QCAT 472, cited

Medical Board of Australia v Wong [2017] QCA 42, cited

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, cited

[1] The Tribunal gave its substantive decision in the matter on 16 June 2017. The substantive matter was an application by Mr Zaphir for review of a decision by the Health Ombudsman to issue an interim prohibition order (IPO) preventing Mr Zaphir from providing health services. The applicant was unsuccessful and the decision of the Health Ombudsman was confirmed.

[2] At the time of giving its decision, the Tribunal made directions for the parties to file submissions as to costs.

[3] For the purposes of the Health Ombudsman Act (Qld) (HO Act), the review of a decision made by the Health Ombudsman is a disciplinary proceeding and is a proceeding for which QCAT has jurisdiction.

[4] The position as to costs in disciplinary proceedings is that provided for under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The starting position is that each party bears their own costs.[1]

[5] Pursuant to s 102(1) of the QCAT Act, the Tribunal may make an order for costs if the Tribunal considers that the interest of justice require such an order. That gives the Tribunal a broad discretionary power.[2]

[6] In deciding whether the interest of justice require an award of costs, s 102(3) of the QCAT Act identifies the matters which the Tribunal may have regard, including conduct necessarily disadvantaging another party, the nature and complexity of the dispute, the relative strengths of the claims made by each party, whether the applicant in a review proceeding genuinely attempted to enable and help the decision-maker, the financial circumstances of the parties and anything else the Tribunal considers relevant.

[7] The question for the Tribunal has been formulated as:

...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 a costs order in s 100.[3]

[8] The Court of Appeal in Medical Board of Australia v Wong described the question as whether there was "a basis for departing from the default position."[4] The Honourable JB Thomas AM QC in Health Ombudsman v Antley described the approach as being whether there are "countervailing considerations."[5]

[9] In making an application for costs, the Health Ombudsman submitted that the interests of justice require that Mr Zaphir be ordered to pay all of the costs of the Health Ombudsman. The Health Ombudsman referred to particular findings made by the Tribunal:

• (a) The finding that Mr Zaphir was "a most unhelpful, evasive witness and a person who is willing to give false or certainly misleading evidence";

• (b) The finding that Mr Zaphir had a "complete disregard for the system of registration and the role of the regulator"; and

• (c) The finding that Mr Zaphir had continued to treat patients despite the prohibition order.

[10] The Health Ombudsman submitted that Mr Zaphir instituted these proceedings to review a decision which, apparently, he had no intention of complying with in any case. The Health Ombudsman submitted that this amounts to the applicant "having vexatiously conduct[ed] this proceeding."

[11] In the submissions for costs, the Health Ombudsman relied upon the weakness of the applicant's case, his lack of assistance to the Tribunal and his attempts to deceive the Ombudsman (and the Tribunal) in his evidence with respect to the conduct which led to the IPO and with respect to his non-compliance with the IPO. In particular, reference was made to the lack of the provision by the applicant of any useful submissions but rather correspondence which was obstructive and irrelevant.

[12] In submissions on behalf of Mr Zaphir, it was suggested that given the interim nature of the proceedings, there should be no costs ordered and any costs should form part of any further proceedings.

[13] In the alternative, it was submitted that if the Tribunal was minded to award costs, there was no basis to find that this case had some "special" or "unusual feature" about it so as to justify the departure from the usual rule of costs being awarded on a standard basis, if in fact they are awarded at all.

[14] The Tribunal does not accept the submission that, given the interim nature of the order, there should be no order for costs at this time. Whilst the review proceedings related to the making of an interim order, the review proceedings were separate and self-contained. As such, it is appropriate for the Tribunal to consider whether a costs order should be made.

[15] The Tribunal considers the conduct of the applicant added unnecessarily to the costs of the Health Ombudsman. From the time of commencement of the investigation, the approach of Mr Zaphir was obstructive and non-responsive and included refusals to meet with officers from the Office of the Health Ombudsman during the investigation.

[16] The claim made by Mr Zaphir to review the decision was weak. The weakness of the claim was expounded by the dishonest way it was presented. As is clear from the findings of the Tribunal, Mr Zaphir gave no assistance to the Tribunal to reach a decision based on the truth.

[17] In the circumstances, the Tribunal considers the interests of justice require the making of an order. The appropriate order is that Mr Zaphir is to pay the costs of the Health Ombudsman of and incidental to the proceedings to be assessed on the District Court scale. The Tribunal will make the appropriate incidental orders.

[2] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412.

[4] [2017] QCA 42, [35].

[5] [2016] QCAT 472, [61].