Court of Appeal

Medical Board of Australia v Wong [2017] QCA 042 (16/7297) Morrison and McMurdo JJA and Mullins J 17 March 2017

Full-text: QCA17-042.pdf

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

Summary Notes

Application for Leave Queensland Civil and Administrative Tribunal Act; Appeal Queensland Civil and Administrative Tribunal Act – where QCAT departed from the default position in s 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 – where 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 – where absent a finding that the Board had commenced the proceeding without such a belief, there could be no such criticism of the Board’s doing so – where, moreover, if the Board held that reasonable belief, it was bound to bring the proceeding – where 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 – where 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 – where as to the Board’s conduct after the 2015 decision, her Honour found that the position taken by the Board was not “wholly unreasonable” – where there was no respect in which the Board’s position was identified as unreasonable, in pressing for the conditions which it proposed – where 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 – where 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 – where no finding was sought here that the Board acted in bad faith – where 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 – where 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. Extend the time for making the application for leave to appeal. Grant leave to appeal. Allow the appeal. Set aside the order for costs made by the tribunal. Order that there be no order for costs in the proceeding in the tribunal. Order the respondent pay the applicant’s costs of the proceeding in this Court.