(Consideration of the discretion of the Tribunal to award costs. Practitioner sought a costs order against the Board in relation to a compulsory conference).
On 19 July 2013, the Australian Health Practitioner Regulation Agency (AHPRA) resolved to take immediate action against Dr Lee and impose conditions on his registration (the original decision). On 2 September 2015, AHPRA exercised its power pursuant to Section 126 of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law) to impose additional conditions on Dr Lee (the amended decision).
On 13 November 2015, Dr Lee filed applications to review the original decision and the amended decision. A compulsory conference was held on 29 January 2016.
Those attending the compulsory conference on behalf of the Medical Board of Australia (the Board) included an experienced solicitor, Queens Counsel, a senior AHPRA in-house lawyer and another Board officer.
During the compulsory conference the parties reached a consensus as to appropriate conditions to be imposed on Dr Lee’s practice, varying the terms that had been imposed by the amended decision. The persons attending the compulsory conference on behalf of the Board lacked the authority to agree to those amended conditions. Accordingly, the conference ended with a provisional agreement that was subject to subsequent approval by the Board.
A little over 6 weeks following the compulsory conference, the Board’s representatives advised Dr Lee that the Board had been instructed to “progress this matter to hearing”. The Board did not consent to the varied conditions which had been agreed at the compulsory conference.
On 12 April 2016, Dr Lee instructed his solicitors to withdraw the proceedings.
This decision involved consideration of whether the Board should be required to pay Mr Lee’s costs referrable to the compulsory conference.
The decision discusses the discretion of the Tribunal to award costs and confirms that the ultimate question posed by the statutory provisions as outlined in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is whether it is in the interests of justice to make a costs order. A wide range of circumstances must be considered in order to answer that question.
The Tribunal made reference to the fact that the Board succeeded in the litigation, namely that Dr Lee withdrew his applications and the interests of justice would “in the absence of any countervailing consideration” clearly require departure from the usual rule that each party should pay their own costs and a costs order would be justified with reference to the decision of Tamawood Ltd & Anor v Paans  QCA 111.
While the Board led evidence and purported to provide an explanation for why it was unable to have someone at the compulsory conference with authority to provide instructions, the Tribunal was of the opinion that better arrangements needed to be made “to do something sensible about the present unsatisfactory situation. But even accepting the submissions at their highest, the Board’s own incapacity is no answer to the unfortunate fact it is very far from a model litigant in the situation such as the present”.
In the circumstances, the Tribunal found that “Dr Lee was disadvantaged and that the Board’s conduct or inadequacy would justify awarding a substantial part of the costs against it in relation to the compulsory conference, or alternatively, allowing a reduction in the costs that would be otherwise be ordered against Dr Lee”.
The Tribunal ordered that the Dr Lee should pay 75% of the Board’s costs to be assessed, attributing 15% of the Board’s costs to the unsuccessful compulsory conference.