Federal Court of Australia

Broadbent v Medical Board of Australia [2023] FCAFC 186

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    Pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth), the appellant, Mr Michael Russell Mark Broadbent, sought review of the making of a sequestration order by a Registrar of the Court under s 43 of the Bankruptcy Act 1966 (Cth). In that application, Mr Broadbent asserted that he had a counter-claim against the respondent, the Medical Board of Australia, for an amount exceeding the judgment debt amount, and that the Board is not the proper creditor.

2    On 8 May 2023, the primary judge (Logan J) dismissed the application and (for the avoidance of doubt) affirmed the sequestration order: Medical Board of Australia v Broadbent [2023] FCA 673 (Reasons). His Honour was satisfied that the alleged act of bankruptcy occurred, that the creditor’s petition had been served on Mr Broadbent and that the debt upon which the creditor’s petition arose remained outstanding. The primary judge was not satisfied that Mr Broadbent had established that he had a real chance of successfully pursuing his asserted counter-claim such that occasion arose to exercise a discretion not to sequestrate his property.

3    Mr Broadbent appeals from the primary judge’s decision. To a significant extent, the grounds of appeal seek to revisit a range of complaints made by Mr Broadbent, who is a former medical practitioner, in relation to earlier disciplinary proceedings conducted by the Queensland Civil and Administrative Tribunal (QCAT). As explained further below, those complaints are not relevant to the issues arising on this appeal, which concern a judgment debt arising from costs orders made in separate proceedings that were commenced by Mr Broadbent against the Board in the Federal Circuit Court of Australia (as it was then called) and on appeal to this Court.

4    In so far as Mr Broadbent contends that the Board is not the proper creditor based on the operation of transitional provisions contained in the Health Practitioner National Law (Qld) under the Health Practitioner Regulation National Law Act 2009 (Qld), that argument is misconceived in circumstances where the Board was the named party to the proceedings in the Federal Circuit Court and this Court, and where costs orders were made in the Board’s favour in those proceedings.

5    In summary, the primary judge correctly found that the matters required by s 52(1) of the Bankruptcy Act had been proven. Mr Broadbent has not demonstrated any error in the exercise by the primary judge of the discretion to make a sequestration order on the creditor’s petition under s 52 of the Bankruptcy Act. In particular, the primary judge did not err in concluding that Mr Broadbent had not established that a sequestration order ought not to be made for any “other sufficient cause”, nor in declining to go behind the judgment debt or to find that there was in truth and reality no debt owed to the Board.

6    Accordingly, for the reasons set out below, the appeal is dismissed.

Background

7    By a creditor’s petition dated 10 October 2022, the Board applied for a sequestration order against the estate of Mr Broadbent. The petition was based on a debt owed by Mr Broadbent to the Board in the amount of $79,468.73 for unpaid costs judgments arising from certificates of taxation in the Federal Circuit Court and in this Court, together with interest on those amounts. The petition stated that Mr Broadbent had failed to comply on or before 30 August 2022 with the requirements of a bankruptcy notice served on him on 9 August 2022 or to satisfy the Court that he had a counter-claim, set-off or cross demand equal to or more than the sum claimed in the bankruptcy notice which he could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained (so as to constitute an act of bankruptcy under s 40(1)(g) of the Bankruptcy Act).

8    The costs orders giving rise to the debts the subject of the creditor’s petition were made in previous bankruptcy proceedings, in which Mr Broadbent had sought to set aside an earlier bankruptcy notice served on him by the Board in relation to a different debt which arose from a costs order made by QCAT in disciplinary proceedings brought against Mr Broadbent pursuant to ss 125 and 126 of the Health Practitioners (Professional Standards) Act 1999 (Qld).

9    The history of those disciplinary proceedings was recounted in the judgment of Rangiah J in Broadbent v Medical Board of Australia (2015) 241 FCR 419 at [4]-[19]. For present purposes, it suffices to note the following key aspects of that procedural history.

(1)    In 2007 and 2008, the Medical Board of Queensland (the Board’s statutory predecessor) commenced disciplinary proceedings against Mr Broadbent in the Health Practitioners Tribunal, which has since been abolished and replaced by QCAT. The disciplinary proceedings arose from Mr Broadbent’s treatment of two patients who died after he performed surgery on them.

(2)    On 10 June 2010, QCAT found that Mr Broadbent had behaved in a manner that constituted unsatisfactory professional conduct: Medical Board of Queensland v Broadbent [2010] QCAT 280 (QCAT Decision). An application for leave to appeal from that decision was refused by the Court of Appeal: Broadbent v Medical Board of Queensland [2010] QCA 352. A number of other unsuccessful challenges have been brought by Mr Broadbent in connection with the proceedings before QCAT and the QCAT Decision, or subsequent decisions made by the Board in relation to Mr Broadbent: Broadbent v Medical Board of Queensland (2011) 195 FCR 438; Medical Board of Australia v Broadbent [2012] QCAT 120; Broadbent v Medical Board of Australia [2018] QCAT 25; Broadbent v Medical Board of Australia (No 2) [2018] QCAT 408; Broadbent v Medical Board of Australia [2019] QCA 139.

(3)    After a separate hearing in relation to penalty and costs, QCAT required Mr Broadbent to give an undertaking under s 241(2)(d) of the Health Practitioners (Professional Standards) Act to the effect that he would permanently retire from medical practice and would never reapply for registration as a medical practitioner, and ordered Mr Broadbent to pay 70% of the Medical Board of Queensland’s costs of the hearing of the disciplinary proceedings (not including investigation costs) (the QCAT costs order).

(4)    The QCAT costs order was registered in the District Court of Queensland, leading to an order that Mr Broadbent pay the costs of the “Medical Board of Australia” pursuant to the QCAT costs order, which were assessed at $387,862.17.

(5)    The Board issued a bankruptcy notice in respect of an outstanding debt due under the District Court’s costs order. Mr Broadbent brought proceedings in the Federal Circuit Court seeking to set aside that bankruptcy notice. Those proceedings were initially unsuccessful in the Federal Circuit Court, but an appeal to this Court was allowed by Rangiah J, who exercised the discretion to go behind the District Court’s costs order and concluded that the debt arising from the QCAT costs order was not in truth and reality owed to the Board (as opposed to the Medical Board of Queensland, the existence of which had been preserved by transitional provisions under the National Law (Qld)): Broadbent v Medical Board of Australia (2015) 241 FCR 419 at [85], [89], [96], [99].

(6)    Significantly for present purposes, because Mr Broadbent was successful on a basis that was not argued before the Federal Circuit Court, Rangiah J did not disturb the costs order that had been made against Mr Broadbent and in favour of the Board in the Federal Circuit Court, and further ordered that Mr Broadbent should pay a portion of the Board’s costs of that appeal: Broadbent v Medical Board of Australia (2015) 241 FCR 419 at [100]-[101].

(7)    Certificates of taxation were issued in respect of the amounts owing pursuant to the costs orders made by the Federal Circuit Court and by this Court in the previous bankruptcy proceedings. Those certificates were final judgments or final orders within the meaning of s 40(1)(g) of the Bankruptcy Act: see Federal Court Rules 2011 (Cth), r 40.32(2).

10    A Registrar of this Court made a sequestration order on 1 February 2023, and ordered that the Board’s costs including reserved costs be fixed in the sum of $8,780.00 and be paid from Mr Broadbent’s estate.

Reasons of the primary judge

11    By an interim application filed on 15 February 2023, Mr Broadbent applied for review of the Registrar’s decision, together with associated claims that he had a counter-claim for an amount exceeding the petitioning creditor’s judgment debt which represented a valid set-off to that debt under s 40(1)(g) of the Bankruptcy Act, and that the petitioning creditor was “not the proper creditor”. It was accepted in the Court below, and is not disputed on this appeal, that this was properly treated as an application under s 35A(5) of the Federal Court of Australia Act to review the Registrar’s decision to make the sequestration order as an exercise of delegated judicial power: see Reasons at [6]. As such, the review proceeded as a de novo hearing of the creditor’s petition, which encompassed both proof of the matters set out in s 52(1) of the Bankruptcy Act and consideration under s 52(2) whether the Court was satisfied by Mr Broadbent that he was able to pay his debts or “that for other sufficient cause a sequestration order ought not to be made”.

12    The primary judge identified the central issue as the basis on which Mr Broadbent submitted that the Court should exercise the discretion not to make a sequestration order: see Reasons at [3], [18]. Thus, the primary judge was satisfied that the Board had made the formal proofs necessary to make a sequestration order under s 52 of the Bankruptcy Act, having made findings in relation to the matters required to be proved under s 52(1) of the Bankruptcy Act, including the existence of the debts owed to the Board; the fact that the debts remain unpaid and were still owing; service of the Board’s petition and affidavits in support; and that Mr Broadbent had committed an act of bankruptcy by failing to comply with the bankruptcy notice within the time allowed: Reasons at [8]-[17]. Mr Broadbent does not directly challenge those findings in this appeal.

13    In addressing the “real question” whether a discretion not to sequestrate should be exercised in favour of Mr Broadbent, the primary judge considered a range of arguments advanced by Mr Broadbent. In particular, having regard to the grounds of the interim application filed on 15 February 2023, the primary judge considered whether Mr Broadbent had a counter-claim against the petitioning creditor that could be relied on by way of set-off against the debt claimed in the bankruptcy notice. In that regard, while Mr Broadbent had brought a proceeding in the Supreme Court of Queensland claiming damages for alleged breaches of duty by the Board or the State of Queensland in connection with the disciplinary proceedings against him, the primary judge found that the asserted counter-claim “[did] not rise beyond the level of mere allegation” and did not demonstrate that he had a real claim against the creditor that was likely to succeed: Reasons at [23].

14    The primary judge further observed that Mr Broadbent had unsuccessfully challenged QCAT’s decision and its findings of unsatisfactory professional conduct in proceedings before the Queensland Court of Appeal: Reasons at [24]-[28].

15    The primary judge was not prepared to exercise the discretion to go behind the judgment so as to question whether there was in truth and reality a debt due to the Board as the petitioning creditor. In so far as Mr Broadbent claimed that the debts owed to the Board as a result of the costs orders had been secured by a process that was tainted by alleged corrupt conduct or other irregularities, the primary judge considered that “there is just no evidence which would raise, even prima facie, such a case”: Reasons at [30].

16    Thus, the primary judge was “not persuaded that [Mr Broadbent had] established any factual foundation sufficient to demonstrate that he has a real chance of pursuing successfully his counter-claim”: Reasons at [33].

17    The primary judge summarised his conclusions as follows (Reasons at [36]):

It therefore only comes to this. I am satisfied that the act of bankruptcy alleged in the petition has been committed. I am further satisfied that the petition was duly served and that the debt upon which the petition is founded remains owing. I am not satisfied that Mr Broadbent has demonstrated that there is occasion grounded in a counter-claim or for that matter in conduct of the Board amounting to an abuse of process such that occasion has arisen to exercise nonetheless a discretion not to sequestrate.

18    For completeness, we note that the primary judge considered and rejected an alleged “federal constitutional issue” raised by Mr Broadbent, namely that the deprivation of his right to practice as a medical practitioner amounted to an acquisition of property otherwise than on just terms contrary to s 51(xxxi) of the Constitution. As the removal of Mr Broadbent’s right to practice had occurred pursuant to State law, the primary judge considered that s 51(xxxi) of the Constitution “was not the source of legislative competence to enact the law or a source of a restriction on some other head of Commonwealth legislative competence”: Reasons at [35]. None of the grounds set out in Mr Broadbent’s Notice of Appeal dated 3 July 2023 are directed to this conclusion, and it was not addressed by Mr Broadbent in his written and oral submissions on the appeal. Nor have any further notices been given under s 78B of the Judiciary Act 1903 (Cth) in relation to the appeal proceedings. Accordingly, there is no challenge to the primary judge’s disposal of this issue.

Legal framework

19    A sequestration order may be made at the hearing of a creditor’s petition if s 52(1) of the Bankruptcy Act is satisfied:

52 Proceedings and order on creditor’s petition

(1) At the hearing of a creditor’s petition, the Court shall require proof of:

(a)    the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

(b)     service of the petition; and

(c)    the fact that the debt or debts on which the petitioning creditor relies is or are still owing;

and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

20    Section 52(2) of the Bankruptcy Act provides that, if the Court is not satisfied that the requirements of s 52(1) have been met, or if the Court is satisfied that the debtor can pay his or her debts, or there is “other sufficient cause” why a sequestration order ought not be made, the creditor’s petition may be dismissed.

21    It is well accepted that a counter-claim or set-off may constitute a “sufficient cause” not to make a sequestration order pursuant to s 52(2) of the Bankruptcy Act: Ling v Enbrook Pty Ltd (1997) 74 FCR 19 at 25 (Davies, Wilcox and Branson JJ). For such purposes, the debtor only needs to establish that he or she has a real claim which is likely to succeed: St George Bank Ltd v Helfenbaum [1999] FCA 1337 at [13] (Sundberg J), cited with approval in Rigg v Baker (2006) 155 FCR 531 at [65] (French J, with whom Spender J generally agreed at 533 [2]); cf. at 552 [105] (Cowdroy J, dissenting). Nevertheless, it is clear from the terms of s 52(2) that the debtor carries the onus of satisfying the Court that for other sufficient cause a sequestration order ought not to be made: see Ling v Enbrook Pty Ltd (1997) 74 FCR 19 at 24.

22    There are also circumstances in which the Court can exercise a discretion not to accept a judgment as satisfactory proof of the petitioning creditor’s debt, that is, to “go behind” the judgment in order to determine whether, in fact, there is a debt owing as claimed by the petitioning creditor: Wren v Mahoney (1972) 126 CLR 212 at 224-225; Ramsay Healthcare Australia Pty Ltd v Compton (2017) 261 CLR 132 at [20], [47]-[49] (Kiefel CJ, Keane and Nettle JJ), [76]-[77] (Gageler J, dissenting in the result), 165-166 [110]-[112] (Edelman J). As stated by Downes J in Thompson v Lane (Trustee) (2023) 410 ALR 439; [2023] FCAFC 32 at [145]-[146]:

Where a question is raised as to whether a judgment or order establishes the amount truly owing to the petitioning creditor, there are two separate questions: first, whether there is a proper basis to exercise the discretion to go behind the judgment, and second, if there is, whether there is in truth and reality no debt: see Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132; [2017] HCA 28 at [16], [37] –[38], [65]–[71] (Kiefel CJ, Keane and Nettle JJ); see also Lowbeer v De Varda (2018) 264 FCR 228; [2018] FCAFC 115 at [53] .

The discretion may be exercised where the judgment or order which comprises the debt was reached with fraud, collusion or a miscarriage of justice: Corney v Brien (1951) 84 CLR 343. However, as also recognised by the primary judge at [69] J, the circumstances in which a court may go behind a judgment are not limited to fraud, collusion or miscarriages of justice. A bankruptcy court should go behind a judgment where sufficient reason is shown for questioning whether behind the judgment there is in truth and reality a debt due to the petitioning creditor: see Ramsay at [37]–[38] (Kiefel CJ, Keane and Nettle JJ).

Grounds of appeal

23    The grounds of appeal set out in the Notice of Appeal dated 3 July 2023 do not clearly identify or articulate any alleged error in the reasons of the primary judge.

24    Many of the grounds of appeal are directed to various alleged errors or irregularities in the process and outcome of the disciplinary proceedings before QCAT. Mr Broadbent contends that the “alleged Judgment Debt was procured by the multiple sequences of acts of negligence by the [Board] and their multiple sequential breaches of the applicable Statute and Statutory Duties”. Mr Broadbent contends that he was denied natural justice and due process, and that the hearing before QCAT was void or voidable. Other alleged errors concern the constitution or selection and competence of QCAT, or the manner in which the hearing on penalty was conducted and determined. In particular, Mr Broadbent challenges the “Costs Order” that was procured in the penalty hearing, which must be read as a reference to the QCAT costs order that was subsequently registered in the District Court, and which was the subject of the earlier bankruptcy notice.

25    Paragraph 9 of the grounds of appeal is directed to whether the Board is the proper creditor, and is expressed in the following terms:

9. Per force of National Law introduced on 1 July 2010 the petitioning Creditor was not the true Creditor and is/was a mere Agent of the true Creditor the powers and functions of the Creditor, and that agency in that respect expired on 30 June 2013 re S9A(4) National Health Law.

26    This ground relates to an argument based on the operation and effect of transitional regulations under s 9A(4) of the Health Practitioner Regulation National Law Act, which is said to have affected the jurisdiction and powers of the Board both between 1 July 2010 and 30 June 2013, and on and after 1 July 2013. Mr Broadbent accepted that this ground had not been argued before the primary judge. However, the Board conceded that it had sufficient notice of the issue and did not oppose an application by Mr Broadbent for leave to rely on this ground of appeal. Accordingly, at the hearing of the appeal, the Court granted leave to Mr Broadbent to rely on this ground of appeal.

27    Paragraph 11 of the grounds of appeal is directed to the counter-claim brought by Mr Broadbent against the Board and/or the State of Queensland:

11. In 2013 Appellant filed and served an Offset Claim against the Creditor that by mutual consent had not proceeded with until the Plaintiff’s [i.e. Mr Broadbent’s] damages had crystallized. A draft of a new fresh Statement of claim was forwarded to the Respondent in May 2023

28    Paragraph 12 of the grounds of appeal is directed to Mr Broadbent’s ill-health at the time that the bankruptcy notice was served:

12. At the time the Bankruptcy was procured the Appellant was Medically unfit during and following Surgery and the Respondent was aware of that illness that prevented his representation in the matters, and in breach of the continuing Duty of Care to the Appellant progressed the Bankruptcy without representation from the Appellant.

29    At the hearing of the appeal, Mr Broadbent also raised a suggestion that he had been denied procedural fairness by the primary judge, in that he was not given a proper opportunity to make submissions on the operation of s 9A(4) of the Health Practitioner Regulation National Law Act. Such an argument is outside the scope of the Notice of Appeal that was filed on 3 July 2023. The argument was foreshadowed in an earlier purported application for leave to appeal, which stated that Mr Broadbent was “denied a fair hearing of his petition on 8th May 2023 in the Appeal Court being denied the right of making Oral submissions” raising the issue that the Board was not the true creditor by force of s 9A(4) of the Health Practitioner Regulation National Law Act. However, that purported application was ultimately superseded by the Notice of Appeal dated 3 July 2023, which does not contain any such ground of appeal.

30    The Board opposed the grant of leave to Mr Broadbent to raise this ground. After hearing submissions from the parties, the Court refused to grant Mr Broadbent leave to raise a fresh ground of appeal referable to the claimed denial of natural justice before the primary judge, on the basis that it was not expedient in the interests of justice to grant such leave: see VUAX v Minister for Immigration and Multicultural Affairs (2004) 238 FCR 588 at [46]-[48].

(1)    First, the Court had regard to the late time at which the ground was sought to be raised. While noting that there had been some references to the claim in the earlier application for leave to appeal, nonetheless, no submissions of any substance were filed in relation to this question.

(2)    Second, there was no evidence before the Court of any denial of natural justice to Mr Broadbent at first instance. To the extent that it is possible for the Court to draw any inferences, it appears from court records that the parties were at least provided an opportunity to make submissions to the primary judge before the delivery of ex tempore judgment.

(3)    Third, the primary concern sought to be raised by the new ground of appeal referable to a claimed denial of natural justice relates to the questions that are said to be raised by s 9A(4) of the Health Practitioner Regulation National Law Act. The Court has granted leave to Mr Broadbent to rely on a ground of appeal relating to s 9A(4), and he can therefore make submissions on that issue in the course of the appeal.

31    At the commencement of his oral submissions on the appeal, Mr Broadbent provided the Court with a two-page document dated 22 November 2023 headed “Basic Facts”, which was described by Mr Broadbent as amounting to an outline or summary of the points on which he relied. This document was accepted without objection by way of supplementary submissions in support of the appeal. Many of the points set out in this two-page document concern the procedural history of the disciplinary proceedings and Mr Broadbent’s complaints about various aspects of those proceedings. Otherwise, the document reiterates the arguments that the Board was not and is not the “true” creditor, and that the Board’s jurisdiction was “time limited per effect of s 9A(4) National Law effective only from 1 July 2010 to 1 July 2013”.

32    In his written and oral submissions, Mr Broadbent asserted that there had been fundamental breaches by the Medical Board of Queensland (prior to 1 July 2010) and by the Board (from 1 July 2010), which amounted to a series of alleged jurisdictional errors in the investigation and prosecution under the Health Practitioners (Professional Standards) Act. In particular, Mr Broadbent submitted that these errors invalidated the proceedings before QCAT in relation to penalty and costs, and that QCAT erred in law and exceeded jurisdiction in its decision on penalty and costs. Mr Broadbent also advanced broad submissions in relation to the regulation of the medical profession, including the role and asserted influence of insurers who were said to have “vested interests” contrary to registrants such as himself. Most of these submissions were remote from any question properly raised in these proceedings (whether before the primary judge or on the present appeal), which are concerned with the creditor’s petition served by the Board based on a judgment debt arising from costs orders made in its favour in previous proceedings brought by Mr Broadbent to challenge the earlier bankruptcy notice.

33    As explained below, any questions concerning the validity of the disciplinary proceedings before QCAT (assuming that they have not already been considered and rejected in earlier review proceedings) have no relevance to the debt that is the subject of the current creditor’s petition. To the extent that they have any relevance at all to the current proceedings, Mr Broadbent’s various allegations against the Board, or its predecessors, in relation to the conduct of the disciplinary proceedings against him arguably go to whether he can establish a counter-claim against the Board that is likely to succeed by way of set-off to the judgment debt on which the bankruptcy notice was based. It was not suggested that the claim was relevant to establishing that Mr Broadbent was solvent and would be able to pay his debts in full in the event that he was successful in the proceedings: cf. Ling v Enbrook Pty Ltd (1997) 74 FCR 19 at 22, 26.

34    The Board submitted that the primary judge correctly found that the requirements of s 52 of the Bankruptcy Act had been satisfied and that there was no reason for the Court to exercise the discretion to dismiss the creditor’s petition. In the Board’s submission, Mr Broadbent had failed to identify any appealable error in the approach adopted and the principles applied by the primary judge at first instance. Further, the Board submitted that the costs orders on which the bankruptcy notice was based did not arise from the original disciplinary proceedings, but rather from the separate proceedings between Mr Broadbent and the Board in relation to the previous bankruptcy notice. The Board submitted that Mr Broadbent’s complaints about the disciplinary proceedings before QCAT were irrelevant to the question of whether there was sufficient reason to go behind the judgment on which the act of bankruptcy was founded. In particular, the creditor’s petition was not based on the QCAT costs order, but rather on the costs orders made by the Federal Circuit Court and this Court in the subsequent proceedings between Mr Broadbent and the Board. In this regard, it was submitted by the Board that Mr Broadbent had not adduced evidence sufficient to prove that he had a real claim against the Board that was likely to succeed, and that the primary judge was correct to find that there was not even prima facie evidence to support Mr Broadbent’s claims. Accordingly, there was no reason, let alone a substantial reason, to doubt whether a debt was owing pursuant to the costs order on which the creditor’s petition was based.

Consideration

35    There does not appear to be any dispute on this appeal, and nor was there any dispute below, that the requisite matters set out in s 52(1) of the Bankruptcy Act were proven. The primary judge was properly satisfied of the matters stated in the creditor’s petition (including that there was an act of bankruptcy), that the creditor’s petition had been served on Mr Broadbent, and that the debts on which the Board relied were still owing. There is no direct challenge to these findings on appeal.

36    The central issue below concerned whether the Court should exercise the discretion under s 52 of the Bankruptcy Act to dismiss the creditor’s petition and not make a sequestration order – in particular, whether “other sufficient cause” had been shown (primarily based on an alleged counter-claim as a set-off against the judgment debt), or whether the Court should “go behind” the judgment and find that “in truth and reality” no debt was owed. As those issues involved the exercise by the primary judge of a judicial discretion, it is necessary to demonstrate an appealable error in accordance with the principles in House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ):

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

37    In our view, Mr Broadbent has failed to establish any appealable error in the primary judge’s reasons in accordance with the principles in House v The King.

38    In this appeal, as before the primary judge, Mr Broadbent contends that the original disciplinary proceedings before QCAT were tainted by legal and “jurisdictional” errors including some form of fraud, corruption or conspiracy. In particular, Mr Broadbent sought to raise a grievance in relation to the determination of penalty and costs by QCAT, in relation to which Mr Broadbent alleged that there had been improper involvement by an indemnity insurer whose interests conflicted with those of Mr Broadbent. It is unnecessary to canvass the details of these allegations for present purposes, as they are entirely irrelevant to the questions raised for determination in these proceedings.

39    The critical starting point is that the debt that is the subject of the current creditor’s petition does not arise from the QCAT disciplinary proceedings, and is completely separate from the QCAT costs order that was registered in the District Court and led to the institution of the earlier bankruptcy proceedings based on the previous bankruptcy notice that was served by the Board on Mr Broadbent. While Mr Broadbent ultimately had a measure of success in those proceedings, there were nevertheless costs orders made against him and in favour of the Board in both the Federal Circuit Court and on appeal to this Court. No challenge has been made to these costs orders, even assuming that it was open to bring such a challenge in these proceedings, nor to the debts to which they give rise: see Reasons at [16]. As the primary judge found (Reasons at [13]), “[t]here is just no doubt at all that the costs orders respectively made and subsequently certified by the Federal Circuit Court and this Court were costs orders in favour of the Board”, which “remain unpaid to this day”. Although Mr Broadbent ventured to submit that the costs should have been awarded “in the name of” the Australian Health Practitioner Regulation Agency (AHPRA), and that it was an “error” for Rangiah J to have awarded costs in the name of the Board, there is no substance to that submission in circumstances where the Board (and not AHPRA) was the respondent to those proceedings. The Board is a body corporate with capacity to sue and be sued in its corporate name: National Law (Qld), s 31A(1); prior to 1 December 2018, National Law (Qld), s 31(2).

40    The issues sought to be raised by Mr Broadbent in relation to the conduct of the disciplinary proceedings in QCAT do not impugn the existence of the debt arising from the costs orders made by the Federal Circuit Court and by this Court. In so far as such matters are relied on by Mr Broadbent in proceedings commenced by him in the Supreme Court of Queensland against the Board and/or the State of Queensland, the primary judge was not satisfied on the evidence that Mr Broadbent had established that he has a real chance of success in any such claim: Reasons at [23], [30], [33]. His Honour was not satisfied that Mr Broadbent’s counter-claim was likely to succeed for two reasons. First, the Queensland Court of Appeal had dismissed Mr Broadbent’s application for leave to appeal from QCAT’s decision, and in doing so conducted a detailed analysis of whether the findings made by QCAT were reasonably open. Second, and more importantly, his Honour determined that Mr Broadbent was unable to provide prima facie evidence that supported his counter-claim, such that would indicate that it had any likely prospects of success. Mr Broadbent has not provided this Court with any such evidence.

41    In our view, the primary judge did not err in finding that Mr Broadbent had failed to establish that he had a real claim against the Board that was likely to succeed, nor in concluding that the allegations raised in Mr Broadbent’s counter-claim did not provide “sufficient cause” not to make a sequestration order on the Board’s petition.

42    In this context, we note that the primary judge observed that the Supreme Court proceeding had not been prosecuted by Mr Broadbent “for a very long time indeed”: Reasons at [20], [33]. In paragraph 11 of the Notice of Appeal, Mr Broadbent seeks to explain this apparent delay as arising by “mutual consent” until his “damages had crystallized”, and then refers to a “fresh” statement of claim having been served on the Board in May 2023. It does not appear that a copy of that statement of claim was before the primary judge, who delivered judgment on 8 May 2023, and nor was this Court provided with a copy of the statement of claim in support of the appeal. In any event, we do not consider that a fresh statement of claim would of itself affect the conclusions reached by the primary judge that Mr Broadbent’s asserted counter-claim did not “rise beyond the level of mere allegation” and that there was no evidence that would even raise a prima facie case against the Board: Reasons at [23], [30].

43    It is necessary to deal with the new ground that relies on s 9A(4) of the Health Practitioner Regulation National Law Act as in force at 1 July 2010. Section 9A conferred a “transitional regulation-making power”, and provided as follows:

9A Transitional regulation-making power

(1)    A regulation (a transitional regulation) may make provision about a matter for which—

(a)    it is necessary to make provision to allow or facilitate the change from the operation of a law of the State relating to health practitioners to the operation of the Health Practitioner Regulation National Law; and

(b)    this Act does not make provision or sufficient provision.

Example for paragraph (a)—

A transitional regulation may provide for a National Board for a health profession to continue and decide an application under the Right to Information Act 2009 that was made to an abolished local registration authority.

(2)    A transitional regulation may have retrospective operation to a day not earlier than the day this section commences.

(3)    A transitional regulation must declare it is a transitional regulation.

(4)    This section and any transitional regulation expires on 30 June 2013.

44    In essence, Mr Broadbent appears to rely on s 9A(4) in support of a submission that the jurisdiction and powers of the Board in relation to the existing disciplinary proceedings relied on transitional regulations that expired on 30 June 2013, and that the Board thereafter acted unlawfully and was not the “true” or “proper” creditor in relation to the costs orders made by the Federal Circuit Court and by this Court on which the current creditor’s petition is founded. While the argument is not easy to understand, Mr Broadbent appears to submit that, under the National Law (Qld), the Board (as a National Board) acts as the agent of AHPRA (as the National Agency) rather than in its own name.

45    The operation of the transitional provisions in relation to commencement on 1 July 2010 of the national scheme contained in the Health Practitioner Regulation National Law, including their particular effect on the disciplinary proceedings against Mr Broadbent, was analysed in detail in the judgment of Greenwood J in Broadbent v Medical Board of Queensland (2011) 195 FCR 438 at [108]-[149]. As his Honour concluded at [145], the effect was that the Medical Board of Queensland continued to be responsible for the carriage of the disciplinary proceedings against Mr Broadbent and any subsequent appeals arising from those proceedings after 1 July 2010, and was to conduct those disciplinary proceedings in accordance with the Health Practitioners (Professional Standards) Act as it existed prior to 1 July 2010. Accordingly, as Rangiah J later held in Broadbent v Medical Board of Australia (2015) 241 FCR 419 at [84]-[89], there was no legislative basis on which the District Court could make a costs order in favour of the Board in respect of the costs awarded by the QCAT costs order. But that has nothing to do with the debt arising from the costs orders that were made by the Federal Circuit Court and by Rangiah J in relation to the costs of those subsequent proceedings, to which the Board was joined as a party by Mr Broadbent. There is nothing in the terms of s 9A(4) of the Health Practitioner Regulation National Law Act, and we are not aware of anything contained in any transitional regulations, which casts any doubt on the capacity of the Board to appear as a respondent in those proceedings in the Federal Circuit Court or in this Court.

46    Accordingly, the arguments advanced by Mr Broadbent in reliance on s 9A(4) of the Health Practitioner Regulation National Law Act do not provide any basis on which the Court should exercise the discretion to “go behind” the judgment debt arising from the costs orders on which the current creditor’s petition is based, nor to find that the debt is not in truth and reality owing to the Board.

47    Finally, Mr Broadbent has raised a ground relating to procedural fairness, namely that he contends that he was of ill-health when the bankruptcy notice was served and this “prevented his representation in those matters”. He argues that continuing with the proceedings in those circumstances was unfair and involved a breach of a continuing duty of care owed to him by the Board. The primary judge acknowledged and took into account that Mr Broadbent had encountered ill-health in the latter half of 2022, referring to this as his “indisposition as at the time when the time for compliance with the bankruptcy notice was running”: Reasons at [37]. His Honour considered that, if Mr Broadbent had been able to establish that he had a real claim against the Board that was likely to succeed, that might have given rise to an exercise of discretion not to sequestrate. However, as Mr Broadbent was unable to establish such a real claim, his Honour considered that he had not demonstrated occasion to exercise such a discretion. As the Board submitted, the primary judge was prepared to take Mr Broadbent’s ill-health into account as a factor in his favour, but did not consider that this warranted exercising the discretion to dismiss the Board’s petition. We are not satisfied that his Honour made any appealable error in exercising his discretion in that regard.

Conclusion

48    Mr Broadbent has been unable to demonstrate any error in the decision of the primary judge.

Associate:

Dated:    4 December 2023