FEDERAL COURT OF AUSTRALIA
Broadbent v Medical Board of Queensland [2011] FCA 980
IN THE FEDERAL COURT OF AUSTRALIA | |
MICHAEL RUSSELL MARK BROADBENT Applicant | |
AND: | Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. Judgment be entered for the Medical Board of Queensland against Michael Russell Mark Broadbent in relation to the whole of the proceeding pursuant to s 31A of the Federal Court of Australia Act 1976.
2. The applicant pay the respondent’s costs of and incidental to the application on an indemnity basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 1 of 2011 |
BETWEEN: | MICHAEL RUSSELL MARK BROADBENT Applicant
|
AND: | MEDICAL BOARD OF QUEENSLAND Respondent
|
JUDGE: | GREENWOOD J |
DATE: | 25 AUGUST 2011 |
PLACE: | BRISBANE |
REASONS FOR JUDGMENT
1 On 4 January 2011, the applicant, Mr Broadbent, filed an application for judicial review of a decision of the Queensland Civil and Administrative Tribunal (“QCAT”) and the conduct of the Medical Board of Queensland (the “Medical Board”) in investigating and then prosecuting a disciplinary proceeding before QCAT against Mr Broadbent.
2 Mr Broadbent acts and appears on his own behalf in this application. Mr Broadbent was formerly a medical practitioner. He surrendered his medical registration at least in part in the circumstances described in these reasons. Exhibit “CTH-21” to the affidavit of Ms Christine Houston filed 9 February 2011 (in support of the notice of motion filed by the respondent, see [59]) recites that Mr Broadbent was called to the Bar on 17 December 1998 having completed a Law Degree at Bond University.
3 QCAT is a tribunal established under a State Act, the Queensland Civil and Administrative Tribunal Act 2009. QCAT is not joined as a respondent to the application. The principal decision of QCAT is reported as Medical Board of Queensland v Broadbent [2010] QCAT 280. In making that decision, QCAT was constituted by Judge C.F. Wall Q.C. assisted by Dr P. Richardson, Dr G. Powell and Ms G. Bolland.
The application
4 Mr Broadbent’s application document is 53 pages in length and contains many wide-ranging assertions about the conduct of the Medical Board in connection with steps taken or decisions made by the Medical Board concerning its examination of Mr Broadbent’s role or engagement in the medical treatment of two former patients, Mrs Ursula MacLeod and Mrs Margaret Pearce. By his application, Mr Broadbent seeks an order quashing or setting aside “the decisions”. One of those decisions is the decision of QCAT made on 10 June 2010 which is discussed later in these reasons. The application for an order of review does not identify the decisions of the Medical Board which are sought to be challenged. However the application recites many factual assertions which begin under the heading “Bad Faith” and commence at (a) to (z) and then continue at (aa) to (zz) and then (aaa) to (zzz) and so on. Although the internal paragraph numbering goes awry in the document, the many factual conduct allegations can be grouped by reference to each block of 26 paragraphs and in doing so, they fall into 10 groups clustered around particular topics although there is a high degree of repetition and overlapping throughout the various 10 groups of allegations.
5 For present purposes, it is sufficient to note that almost all of the contentions are directed to a conclusion that the Medical Board by its conduct engaged in bad faith in connection with its investigation and ultimately its prosecution of Dr Broadbent in relation to matters associated with his treatment of Mrs MacLeod and Mrs Pearce.
The federal element
6 The foundation upon which the application rests is not made clear by the application. However, deconstructing the application and the oral and written submissions the core contention can be framed in this way. Mr Broadbent seeks to enliven a contended jurisdiction in the Federal Court of Australia to exercise supervisory judicial review of the decision of QCAT and “decisions” of the Medical Board on the footing that the Tribunal and the Medical Board are amenable to a jurisdiction conferred upon this Court by operation of ss 75(v), 76(ii) and 77(i) of the Commonwealth Constitution and ss 39B(1) and 39B(1A)(c) of the Judiciary Act 1903 as each decision involves a federal element in the sense that the decision-makers are “officers of the Commonwealth” who have exceeded their jurisdiction, or the decisions engage a matter arising under laws made by the Commonwealth Parliament. Secondly, the applicant seeks to review the relevant “decisions” or alternatively conduct relating to “decisions” on the footing that the decisions or conduct fall within the scope of the Administrative Decisions (Judicial Review) Act 1977 (the “ADJR Act”).
7 By its notice of motion filed 9 February 2011, the Medical Board seeks an order dismissing the application for want of jurisdiction or alternatively an order that judgment be entered for the Medical Board pursuant to s 31A(2) of the Federal Court of Australia Act 1976. The Medical Board seeks an order that its costs be paid on an indemnity basis. It will be necessary therefore to consider the sequence of applications and appeals made previously by Mr Broadbent before the Supreme Court of Queensland and the Queensland Court of Appeal. The Medical Board’s notice of motion is supported by the affidavit of Christine Houston filed 9 February 2011 and 9 March 2011.
8 Mr Broadbent was first registered as a medical practitioner in Queensland on 4 August 1969 and was later registered as a specialist on 11 December 1984. Mr Broadbent retired from practice in Queensland on 7 September 2008 and voluntarily surrendered his registration as a medical practitioner to the Medical Board on 8 September 2008. Dr Broadbent similarly surrendered his registration to the New South Wales Medical Board on 15 December 2008.
9 Mr Broadbent has not practised as a Medical Practitioner in Queensland or elsewhere since retirement.
The disciplinary proceedings commenced before the Health Practitioners’ Tribunal
10 The Medical Board instituted disciplinary proceedings against Mr Broadbent in the Health Practitioners’ Tribunal (“HPT”) on 17 October 2007 in relation to contended conduct concerning Mrs MacLeod and on 18 April 2008 in respect of contended conduct concerning Mrs Pearce, under the Health Practitioners (Professional Standards) Act 1999 (Qld) (the “HPPS Act”) by filing a referral notice before the HPT. By s 125(1), the Medical Board may commence disciplinary proceedings against a registrant if it reasonably believes a “disciplinary matter” exists in relation to the registrant.
11 A “disciplinary matter” means a matter that may provide a ground for disciplinary action to be taken against a registrant and “disciplinary action” means, relevantly, any action that a disciplinary body may take at the end of disciplinary proceedings (whether the relevant person is registered or not at the date of the decision).
12 In the referral notices regarding both Mrs MacLeod and Mrs Pearce, the Medical Board alleged that Mr Broadbent behaved in a manner that constitutes “unsatisfactory professional conduct” pursuant to s 124 of the HPPS Act. Under s 124, unsatisfactory professional conduct is a ground for “disciplinary action”.
13 Shortly before the hearing before the HPT, the Medical Board amended the referral notices to reflect allegations consistent with the findings contained in expert reports it had obtained and filed. This topic is one of the cluster topics recited in various paragraphs of Mr Broadbent’s application before this Court addressed to the “conduct” of the Medical Board.
part ii – the JUDICIAL REVIEW APPLICATION, THE STAY APPLICATION, THE qcat findings and appeal lodged by mr broadbent TO THE COURT OF APPEAL
Application for Judicial Review following commencement of HPT Proceedings
14 On 27 August 2008, Mr Broadbent filed an application in the Supreme Court of Queensland for judicial review of the Medical Board’s conduct under the Judicial Review Act 1991 (Qld).
15 By that application, Mr Broadbent sought the following orders:
(a) An order that the respondent has engaged, is engaging in, or proposes to engage in conduct, for the purpose of making a decision to which the Judicial Review Act 1991 applies, namely, a decision to suspend the applicant from practice as a medical practitioner.
(b) An order or declaration:
(i) That the respondent has engaged in conduct in the making of the decision or proposing to make the decision, that is:
(1) contrary to natural justice;
(2) made without evidence to substantiate the making of such decision contrary to s 21(2)(h);
(ii) that the making of the proposed decision would be improper exercise of power conferred by the enactment under which the decision is proposed to be made;
(iii) that the procedures required by law to be observed in relation to the conduct have not been or are not being or are not likely to be observed;
(iv) that the conduct of the respondent in proposing to make the decision is an improper exercise of the power that is discretionary;
16 The application was heard and dismissed by Philippides J on 5 September 2008. No reasons were published by her Honour.
17 The transcript however reveals that Mr Broadbent sought relief under that Act on the basis that the Medical Board was proposing to make a decision under s 59(2) of the HPPS Act without affording Mr Broadbent procedural fairness and, it was said, without evidence to substantiate the making of the decision in circumstances where the proposed decision would be an improper exercise of power: T 2, lns 9-29. Section 59(2) of the HPPS Act enables the Medical Board to suspend or impose conditions on a practitioner’s registration where the Medical Board reasonably believes that the practitioner poses a serious potential risk to the wellbeing of vulnerable people, and immediate action to suspend or impose conditions on the registrant’s registration is necessary, to protect vulnerable persons.
18 After filing the referral in the HPT concerning Mrs MacLeod in October 2007, the Medical Board made a decision to impose certain conditions on Mr Broadbent’s registration. The Medical board then engaged Dr Carmody to undertake an audit of Mr Broadbent’s practice in February 2008. Between February and June 2008 various other medical expert reports were obtained in relation to Mr Broadbent’s treatment of other patients (who were later the subject of the other HPT hearings).
19 On 30 June 2008, the Medical Board advised Mr Broadbent of its intention to conduct and investigation into whether Mr Broadbent had appropriately assessed, managed and treated each of the identified 11 patients. By letter dated 2 July 2008 the Board also invited Mr Broadbent to make submissions concerning the investigation.
20 After a few letters regarding the provision of further particulars between the Medical Board and Mr Broadbent’s solicitors, the Medical Board wrote to Mr Broadbent on 31 July 2008 stating that the delegate of the Medical Board considered that immediate action was necessary by the Board to address the potential risk to patients. Mr Broadbent was invited to show cause by 11 August 2008 why his registration should not be immediately suspended or conditions imposed upon it pursuant to s 59 of the HPPS Act.
21 After Mr Broadbent had provided the Medical Board with an undertaking (the content is not explained in the transcript) the Medical Board agreed to extend the time for Mr Broadbent to show cause until 28 August 2008.
22 The Medical Board was scheduled to meet on 9 September 2008 to consider the matters the subject of the show cause notice.
The outcome of the judicial review application
23 Philippides J refused to grant the relief sought by Mr Broadbent on the footing that granting relief would amount to pre-empting the decision of the Medical Board concerning the sufficiency of the challenged expert evidence in circumstances where the Board was well placed to assess the expert evidence and where Mr Broadbent would have a right of appeal from a decision under s 59 of the HPPS Act.
24 Philippides J also observed that whilst the content and application of the rules of natural justice would be determined by reference to the terms of the legislative framework, her Honour did not think it appropriate to determine finally the issue of procedural fairness in circumstances where the Medical Board had not made a decision under s 59 of the HPPS Act.
The HPT and QCAT hearings concerning MacLeod and Pearce
25 The hearing of the disciplinary proceedings concerning Mrs MacLeod and Mrs Pearce commenced before the HPT on 7 September 2009.
26 On 7 September 2009, Mr Broadbent made an application for a permanent stay or dismissal of the disciplinary proceedings on the basis that their continued prosecution was unnecessary; an abuse of process; and, contrary to the purposes of s 123 of the HPPS Act. The principal fact (among others) relied upon by Mr Broadbent to support his application was that he was willing to provide an undertaking to never again seek registration as a medical practitioner in Australia (see Medical Board of Qld v Broadbent [2009] QHPT 13 at p 2, Houston affidavit filed 9 February 2011, CTH-5, p 39).
27 Wall J dismissed the application on 7 September 2009 observing that:
There are in the present case broader implications about standards of practice and patient care and management involved in the charges brought by the medical board against Dr Broadbent and it is necessary and appropriate that those matters be aired publically and that both sides have an opportunity to deal with them in a public way.
28 On 1 December 2009, the HPT was abolished and its jurisdiction transferred to the QCAT under the ss 245 and 256 Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009. The hearing of the matter recommenced with the Tribunal sitting as QCAT on 24 February 2010.
29 QCAT delivered its decision in respect of the disciplinary matters on 10 June 2010 (Medical Board of Qld v Broadbent [2010] QCAT 280).
QCAT’s decision concerning Mrs MacLeod
30 By its decision of 10 June 2010, QCAT determined at [210] that, with respect to some of the allegations contained in the Medical Board’s referral notices regarding Mrs MacLeod, Mr Broadbent had behaved in a way that constituted unsatisfactory professional conduct for the purpose of s 124(1)(a) of the HPPS Act because his conduct:
… was of a lower standard than that which might reasonably be expected of him by the public and his professional peers; and
… demonstrated a lack of adequate knowledge, skill, judgment or care, in the practise of his profession.
31 The allegations in the referral notice that were held to be made out in respect of Mrs MacLeod were these:
4. Dr Broadbent failed to provide or prescribe appropriate and adequate nutritional advice, management and treatment.
Particulars
4.1 The advice provided by Dr Broadbent with respect to the meal size following biliary pancreatic diversion surgery was inappropriate, as follows:
(a) The pre-operative consent form utilised by Dr Broadbent stipulated for consumption of no more than 3 meals per day at a size of 50mls during the ‘weight loss phase’;
(b) The food consumption/meal size recommended in the consent form by Dr Broadbent was insufficient to provide for adequate nutrition.
…
4.3 Dr Broadbent failed to ensure that Mrs MacLeod was provided with adequate nutrition during the September admission, as follows:
(a) During the entirety of the September admission the records reveal that negligible food and or fluid were provided to and/or consumed by Mrs MacLeod;
(b) Mrs MacLeod was not prescribed by Dr Broadbent vitamin, iron or calcium supplements during the September admission;
(c) Mrs MacLeod’s consumption of protein, during the September admission, was inadequate.
4.4 Dr Broadbent failed to ensure that Mrs MacLeod was provided with adequate nutrition during the October admission, as follows:
(a) Mrs MacLeod’s oral food intake during the period of hospitalisation was inadequate to sustain long term health;
(b) Dr Broadbent failed to institute an adequate oral feeding regime and/or nasoenteral feeds;
(c) Dr Broadbent failed to institute adequate parenteral nutrition – lipids and fat-soluble vitamins being withheld;
(d) Dr Broadbent failed to assay and replace Mrs MacLeod’s vitamins and minerals.
….
4.6 Dr Broadbent failed to monitor (by assaying or ordering and considering an appropriate number of tests) during the period 13 June to 13 October 2003, the following levels for Mrs MacLeod:
(a) Vitamin A;
(b) Vitamin D;
(c) Zinc; and
(d) Parathyroid hormone levels.
4.7 Dr Broadbent failed to recognise that by the September admission Mrs MacLeod was malnourished.
…
5. Dr Broadbent failed to facilitate appropriate cover for Mrs Ursula MacLeod for the period 11 October 2003 to 12 October 2003 whilst he was absent in Sydney.
Particulars
5.1 At the material times Mrs MacLeod was admitted under Dr Broadbent’s care.
5.2 Dr Broadbent was responsible for the co-ordination of Mrs MacLeod’s health care.
5.3 Dr Broadbent:
(a) attended on Mrs MacLeod at 0630 hours on 10 October 2003;
(b) next attended on Mrs MacLeod at 2000 hours on 12 October 2003;
5.4 During the period 11 October 2003 to 12 October 2003 Dr Broadbent attended a conference in Sydney.
5.5 There is no record in Mrs MacLeod’s medical file, to the effect that Dr Broadbent had arranged to hand over to an appropriately qualified medical practitioner the co-ordination of Mrs MacLeod’s medical care for the period 11 October 2003 to 12 October 2003.
5.6 No written directive or order was given to the nursing staff by Dr Broadbent to the effect that he had arranged for another appropriately qualified medical practitioner to co-ordinate Mrs MacLeod’s medical care in his absence.
5.7 By virtue of 5.5 to 5.6, no appropriate handover of Mrs MacLeod’s care occurred prior to his absence.
5.8 Dr Kay attended on Mrs MacLeod on 11 and 12 October 2003 and Dr Renton attended on Mrs MacLeod on 12 October 2003.
5.9 Both doctors attended in a consultative capacity only, neither having been asked to or consented to assume a co-ordinating role in relation to Mrs MacLeod’s health care.
…
6. Dr Broadbent failed to co-ordinate Mrs Ursula MacLeod’s pain management during his absence in Sydney.
Particulars
…
6.6 Dr Broadbent failed to:
(a) adequately monitor or cause to be monitored, Mrs MacLeod’s deteriorating condition during the period 10 October 2003 to 12 October to ensure that Mrs MacLeod was provided adequate pain relief during the period 10 October 2003 to 12 October 2003;
(b) investigate the causes of Mrs MacLeod’s increasing levels of pain during the period 10 October 2003 to 8.00pm 12 October 2003;
(c) organise or request, following the telephone call of 1545 hours on 12 October 2003, another practitioner to review Mrs MacLeod’s pain management in his absence;
(d) afford Mrs MacLeod the opportunity to discuss with him her condition and the management of her pain.
7. Dr Broadbent failed to arrange referrals when necessary to other specialists to assist in the investigation of Mrs Ursula MacLeod’s deterioration.
…
7.4 Dr Broadbent failed to seek advice from a dietician or nutritionist with respect to the adequacy of Mrs MacLeod’s nutritional intake.
QCAT’s decision concerning Mrs Pearce
32 QCAT also determined at [211], with respect to some of the allegations contained in the Medical Board’s referral notice regarding Mrs Pearce, that Mr Broadbent had behaved in a way that constitutes unsatisfactory professional conduct because his conduct:
…was of a lower standard than that which might reasonably be expected of him by the public and his professional peers;
…demonstrated a lack of adequate knowledge, skill, judgment or care, in the practise of his profession; and
involved the provision of a health service (the gastroscopy) of a kind that was excessive, unnecessary and not reasonably required for the patient’s wellbeing.
33 The allegations in the referral notice that were held to be made out concerning Mrs Pearce were these:
14. Dr Broadbent failed to diagnose and treat Mrs Pearce’s anastomotic leak.
Particulars
…
14.4 Dr Broadbent:
(a) did not give, and/or did not document that he gave, any consideration to a diagnosis of anastomotic leak;
(b) failed to undertake, or cause to be undertaken, any investigations to exclude anastomotic leak and/or establish the cause of Mrs Pearce’s symptoms, namely:
(1) Dr Broadbent failed to undertake chest x-rays, abdominal x-rays or CAT scans of the abdomen.
…
19. Dr Broadbent carried out an upper gastrointestinal endoscopy when it was inappropriate to do so.
Particulars
19.1 Mrs Pearce was suffering with symptoms consistent with anastomotic leak and/or small bowel perforation and/or intra abdominal abscess formation:
(a) the Registrant’s Board repeats and relies on the matters set out in paragraphs 14.2 and 14.3 herein.
19.2 Upper gastrointestinal endoscopy is contraindicated for persons suffering anastomotic leak and/or small bowel perforation and/or intra abdominal abscess formation as it carries with it the risk of further rupture of the bowel and/or the rupture of the abscess into the peritoneal cavity.
20. Dr Broadbent’s management of Mrs Pearce contributed to her death.
Particulars
20.1 The Registrant’s Board repeats and relies on the matters set out at paragraphs 14, 16 and 19 herein.
34 Not all of the particulars recited in the Medical Board’s referral notice concerning Mrs Pearce were found to be established.
35 Very many of the contentions recited throughout the lengthy application document before this Court re-agitate the conclusions and findings of QCAT and challenge the conduct of the Medical Board in propounding that Mr Broadbent’s conduct constituted “unsatisfactory professional conduct”, as conduct of the Medical Board undertaken in bad faith with a view to misleading QCAT.
Application for leave to appeal to the Queensland Court of Appeal
36 On 7 July 2010 the applicant filed an application for leave to appeal to the Queensland Court of Appeal pursuant to s 149 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). Section 149(2) confers a right upon parties to a decision of QCAT to appeal to the Court of Appeal if a judicial member constitutes the tribunal. This right is qualified by s 149(3)(b) which requires the party to obtain the Court’s leave to appeal in circumstances where the appeal raises questions or fact or mixed questions of fact and law. Mr Broadbent was required to obtain leave under s 149 as his appeal involved questions of fact, and mixed questions of fact and law.
37 The relevant grounds in the Notice to Appeal were these:
GROUNDS –
Mrs MacLeod
2.1 In relation to paragraph 4 of the Amended Referral Notice and the allegation that Dr Broadbent failed to provide or prescribe appropriate and adequate nutritional advice, management and treatment the Tribunal erred in finding that:
a. The Advice provided by Dr Broadbent with respect to the meal size following the biliary pancreatic diversion surgery was inappropriate by reference to the pre-operative consent form [particular 4.1] because:
i. That was not the totality of the advice provided by Dr Broadbent as the evidence established by only one part of it;
ii. The reasons for judgement do not address the evidence of the other advice provided by Dr Broadbent;
iii. The other advice provided by Dr Broadbent was contrary of the pre-operative consent form;
iv. The reasons for judgement do not address the effect of other advice provided by Dr Broadbent being contrary to the pre-operative consent form; and
v. The consent form itself was ambiguous.
b. Dr Broadbent failed to ensure that Mrs MacLeod was provided with adequate nutrition during the September admission [particular 4.3]:
i. When the evidence or weight of the evidence was to the contrary, or alternatively;
ii. The evidence did not discharge the burden of proof as the Tribunal found “It is important though to recognise the limitations associated with the allegations made in para 4.3 namely they depend upon an absence of records rather than records in support; and to this extent assume that because there are no records the contrary is established and the failure of Dr Broadbent to prescribe vitamins, iron or calcium supplements does not mean that Mrs MacLeod was not taking her own vitamins, which he understood her to be doing.”
c. Dr Broadbent failed to ensure that Mrs MacLeod was provided with adequate nutrition during the October admission [particular 4.4(a) and (b)], in that her oral food intake or regime and /or nasoenteral feeds during the period between 2 and 5 October was inadequate when:
i. The evidence or weight of the evidence was to the contrary, and
ii. The allegation in the Amended Referral notice related to the entire October admission and the Board had relevantly failed to discharge it onus of proof.
d. If it be the case that the allegation in paragraph 4.5 of the particulars in the Amended Referral Notice that “Dr Broadbent failed to investigate, adequately or at all, Mrs MacLeod’s poor oral food intake and/or her inability to tolerate adequate oral food intake, at any time during the October admission prior to her admission to the Intensive Care Unit on 13 October 2003” was established, as it is unclear from the reasons of judgement, because of the reasons in (c)(i) and (ii) above.
e. Dr Broadbent failed to monitor (by assaying or ordering and considering an appropriate number of tests) during the period 13 June to 13 October 2003, the following levels for Mrs MacLeod:
i. Vitamin A;
ii. Vitamin D;
iii. Zinc; and
iv. Parathyroid hormone levels;
[particular 4.6], because the evidence or weight of the evidence was to the contrary and the Board had failed to discharge the requisite onus of proof on the available evidence.
f. Dr Broadbent failed to recognise that by the September admission Mrs MacLeod was malnourished [particular 4.7] because the evidence or weight of the evidence was to the contrary.
2.2 In relation to paragraph 5 of the Amended Referral Notice and the allegation that Dr Broadbent failed to facilitate appropriate cover for Mrs Ursula MacLeod for the period 11 October 2003 to 12 October 2003 whilst he absent in Sydney, the Tribunal erred in finding that:
a. Dr Broadbent was responsible for the co-ordination of Mrs MacLeod’s health care [particulars 5.2 and 5.9] and
b. By virtue of paragraphs 5.5 to 5.6 of the particulars (which were admitted), no appropriate handover of Mrs MacLeod’s care occurred prior to his absence in Sydney;
as the evidence or weight of the evidence was to the contrary and the Board had failed to discharge the requisite onus of proof on the available evidence. Further the Tribunal erred in finding that he could not appropriately co-ordinate Mrs MacLeod’s care [from] Sydney in the relevant period, as the evidence was to the contrary and there was no particular allegation that to do so from Sydney was unsatisfactory professional conduct.
2.3 The Tribunal erred in finding that, as alleged in paragraph 6 of the Amended Referral Notice and the allegation that Dr Broadbent failed to co-ordinate Mrs Ursula MacLeod’s pain management during his absence in Sydney as the evidence or weight of the evidence was to the contrary and the Board had failed to discharge the requisite onus of proof on the available evidence.
2.4 In relation to paragraph 7 of the Amended Referral Notice and the allegation that Dr Broadbent failed to arrange referrals when necessary to other specialists to assist in the investigation of Mrs Ursula MacLeod’s deterioration the Tribunal erred in finding that Dr Broadbent failed to seek advice from a dietician or nutritionist with respect to the adequacy of Mrs MacLeod’s nutritional intake as alleged in particular 7.4 as the evidence or weight of the evidence was to the contrary and the Board had failed to discharge the requisite onus of proof on the available evidence.
Mrs Pearce
2.5 In relation to paragraph 14 of the Amended Referral Notice and the allegation that Dr Broadbent failed to diagnose and treat Mrs Pearce’s anastomtic leak, the tribunal erred in finding that the allegation made out as the evidence or weight of the evidence was to the contrary and the Board had failed to discharge the requisite onus of proof on the available evidence.
2.6 In relation to paragraph 19 of the Amended Referral Notice and the allegation that Dr Broadbent carried out an upper gastrointestinal endoscopy when it was inappropriate to do so, the Tribunal erred in finding that allegation made out as the evidence or weight of evidence was to the contrary and the Board had failed to discharge the requisite onus of proof on the available evidence.
ORDERS SOUGHT
3.1 The appeal be allowed and the decision of the Tribunal set aside.
3.2 The respondent pay the appellant’s cost of the appeal and the hearing below.
3.3 Such further or other orders as the Court of Appeal consider appropriate.
38 The Medical Board applied for a declaration that on 11 October 2010 the applicant and respondent had agreed to discontinue the applicant’s appeal and the terms of that agreement required the applicant to discontinue the application for leave to appeal. The Medical Board also sought orders that the appeal be dismissed; Mr Broadbent pay the respondent’s costs of the appeal on and from 11 October 2010; and, Mr Broadbent pay the costs of its application.
The decision of the Queensland Court of Appeal
39 The Court held that Mr Broadbent had entered into a valid contractual compromise with the Medical Board (Broadbent v Medical Board of Queensland [2010] QCA 352 at [24]-[25] per Fraser JA, Chesterman JA (at [43]) and McMurdo J (at [85]) agreeing). Nevertheless, the Court found that the facts of the case justified the exercise of the Court’s power to decline to enforce the compromise (Fraser JA at [38]; Chesterman JA at [43], and McMurdo J at [85]) on the basis that the compromise was entered into by Mr Broadbent’s representatives contrary to Mr Broadbent’s instructions; the questions involved in the appeal were of great importance to Mr Broadbent and had significant reputational ramifications; Mr Broadbent had repudiated the compromise shortly after learning of it; the Medical Board had not argued that it would suffer any injustice other than loss of the compromise if the compromise was not enforced; and, the parties were prepared to argue the application for leave to appeal.
40 However, the Court of Appeal dismissed Mr Broadbent’s application for leave to appeal from the decision of QCAT with costs (Chesterman JA at [84]; Fraser JA at [42]; and McMurdo J at [88]). Chesterman JA delivered the principal judgment. Both Chesterman JA (at [46] – [47]) and McMurdo J (at [86]) made special mention of the consideration that as the decision below was reached by a specialist tribunal (by virtue of the two specialist medical practitioners who assisted) it should be accorded particular respect. Chesterman JA at [48] observed that in order to establish a ground for leave, Mr Broadbent was required to indentify the:
… errors complained of with some particularity and show why, by reference to specifically relevant evidence, the Tribunal has made a mistake or at least arguably so. Moreover the facts which are challenged must have actually or potentially affected the determination which the applicant wishes to overturn.
41 Chesterman JA set out at length the findings of QCAT concerning Mrs MacLeod and the content of the joint expert reports before observing at [65], [66] and [67] these things:
[65] Given the details of the findings and the content of the experts’ report it is not immediately obvious that the Tribunal erred in making the findings of fact it did. The evidence both oral and written was very extensive and consisted of far more than I have outlined. The findings indicate a careful consideration of the relevant materials and a rational acceptance of evidence. The applicant, if he were to obtain leave to appeal, had to show that the conclusions of fact could not have reasonably been made, either because there was no evidence to support its findings or that the evidence it accepted was outweighed by evidence to the contrary effect. The applicant did not attempt such an investigation or analysis. His address to the Court consisted of generalised criticisms of the findings, including those which the Tribunal made in his favour. He did not identify any particular fact or finding of fact which he claimed was wrong, nor did he attempt the task of analysing findings by reference to evidence relevant to it to demonstrate why the Tribunal might have been in error. Instead he repeated to the Court the opinions and evidence he had urged on the Tribunal.
[66] The Court repeatedly drew the applicant’s attention to the task he had to essay if he were to persuade it to grant leave to appeal. Despite the admonition the applicant continued with his generalised asseverations that the Tribunal should have accepted in its entirety his opinions and his account of the facts.
[67] Given that approach it is difficult to deal sensibly with the application. The short point is that the applicant did not begin the necessary exercise of exposing factual error on the part of the Tribunal, if it existed.
42 Chesterman JA rejected Mr Broadbent’s contentions that in coming to its decision QCAT had ignored Mrs MacLeod’s consumption of senna tea; that this contended mistake falsified its entire approach to the proceedings in respect of Mrs MacLeod; and, Mrs MacLeod’s consumption of senna tea “voided” the contract between Mrs MacLeod and Mr Broadbent and reduced Mr Broadbent’s function in the circumstances to that of a ‘Good Samaritan’ Doctor.
43 Chesterman JA concluded at [75] that the “… applicant has not shown any reason why he should be given leave to appeal against the Tribunal’s findings with respect to Mrs MacLeod”.
44 As to QCAT’s finding that Dr Broadbent failed to diagnose and treat Mrs Pearce’s anastomotic leak (particular 14), Chesterman JA set out at [78] QCAT’s findings at length before concluding at [79] that:
I have set out this finding at length because the burden of the applicant’s argument was that the evidence did not support the Tribunal’s finding that Mrs Pearce had an anastomotic leak. The evidence in support of the finding is rehearsed at length in the Tribunal’s reasons. The applicant’s attack on those reasons amounted to no more than a repetition of the evidence he gave before the Tribunal and an assertion that the Tribunal should have accepted the opinion of Dr Downes who performed the post-mortem… There was more than sufficient evidence to support the Tribunal’s findings. No error has been shown.
45 As to QCAT’s findings with respect of particulars 19 and 20, Chesterman JA observed that whilst the applicant did not challenge these findings in his oral submission, he did briefly deal with them in his written submissions. However, Chesterman JA observed at [80] that the written submissions contained “… no reasoned criticism of the Tribunal’s findings, and fail to refer to any evidence in support of the general propositions they advanced”. His Honour further observed at [81] that QCAT’s findings were supported by expert evidence.
PART iii - QCAT hearings on penalty and costs
46 QCAT conducted hearings in relation to penalty and costs in respect of Mrs MacLeod and Mrs Pearce on 2 September 2010.
47 QCAT decided that the issue of penalty could be satisfactorily resolved by requiring the registrant under s 241(2) of the HPPS Act to give an undertaking in the following terms (Medical Board of Queensland v Broadbent (No. 3) [2010] QCAT 488 at p 20-2):
I, Michael Russell Mark Broadbent undertake that, the Tribunal having found that grounds for disciplinary action are established in the respects referred to by the tribunal in its judgment delivered on 10 June 2010:
a. I will retire permanently from medical practice;
b. I will never reapply to the National Board for the Health Profession for
registration in Australia as a practising medical practitioner; and
c. I will not seek to be relieved of this undertaking.
(see Exhibit CTH-9, Houston affidavit filed 9 February 2011)
48 QCAT also made an order under s 242(1)(b) of the HPPS Act that the above undertaking be recorded in the Medical Board’s register for the period for which the undertaking is in force pursuant to s 242(1)(b) of the HPPS Act
49 On 4 January 2011, Mr Broadbent attempted to file in the Supreme Court of Queensland an application which is identical to the application currently before this Court which was also filed on 4 January 2011 (see Houston affidavit, 9 February 2011 at [23], CTH-11).
50 The Supreme Court Registry declined to accept Mr Broadbent’s application for filing on the basis that leave to appeal had not be granted in the Court of Appeal. The Deputy Registrar advised Mr Broadbent accordingly by letter dated 4 January 2011.
PART IV - Mr Broadbent’s application BEFORE THE FEDERAL COURT
The focus of the application
51 At page 1 of the application filed 4 January 2011 before this Court, the applicant claims that he is seeking to review the decision of QCAT and the conduct of the Medical Board prior to and during the hearing of the allegations that the applicant engaged in acts of unsatisfactory professional conduct during the surgical management of Mrs MacLeod and Mrs Pearce.
52 The application does not indentify with any clarity any particular decision or decisions of either QCAT or the Medical Board which the applicant seeks to review. Nor does it meet the requirements imposed by Order 54 and 54A of the Federal Court Rules on applications for judicial review.
53 The application states that the applicant is aggrieved by the “decision” and that the grounds of the application are:
1. Breaches of the rules of natural justice and procedural fairness occurred at all stages in the process;
2. The Procedures required by law were not observed;
3. Errors of Law were evident in the determinations;
4. There was no evidence or insufficient evidence to justify the decisions; and
5. There was evidence of bad faith and fraud.
54 The application seeks the following orders:
1. An order quashing or setting aside the decisions; and
2. An order referring the matters to the Queensland Civil and Administrative Tribunal with directives.
55 At the hearing of the respondent’s notice of motion on 9 March 2011, Mr Broadbent suggested that the remedy he was seeking in the event that he established a reviewable error was an order that the matter be remitted back to QCAT for reconsideration (T 6, lns 5-10). When pressed about the question of the source of the jurisdiction in the Federal Court of Australia to hear and determine the application, Mr Broadbent suggested that the appropriate Order may be the remission of the matter to the Supreme Court of Queensland (T 24, lns 12-13).
56 Despite Mr Broadbent’s challenge to the QCAT decision, the content of Mr Broadbent’s application, his written submissions filed on 2 March 2011 and his submissions at the hearing on 9 March 2011 were all directed to a challenge to the conduct of the Medical Board. At the hearing, Mr Broadbent conceded that it was the conduct of the Medical Board that he sought to have reviewed and that he did not seek to challenge the decision of QCAT per se (T 5, lns 11-19 and T 24, lns 17-28).
57 As to the conduct of the Medical Board, Mr Broadbent’s application does not indentify with any specificity any particular decision of the Medical Board in its carriage of the disciplinary investigations and proceedings. Generally, Mr Broadbent’s application is directed to establishing that the conduct of the Medical Board can only be explained by an intention to “fraudulently mislead QCAT” by acting in “bad faith” (see, for example, p 12(aaa), 15(ooo) and 48-50 of the application).
The decisions or conduct under challenge
58 An assessment of Mr Broadbent’s application document and his oral and written submissions, suggests that the broader “decisions” or “conduct” on the part of the Medical Board that he seeks to review are these:
1. The Medical Board’s decision to investigate the applicant concerning his treatment of Mrs MacLeod and Mrs Pearce;
2. The Medical Board’s decision not to investigate other persons involved in the treatment of Mrs MacLeod and Mrs Pearce;
3. The manner in which the Medical Board carried out the investigation of Mr Broadbent’s treatment of Mrs MacLeod and Mrs Pearce;
4. The Medical Board’s decisions to commission and subsequently rely upon the expert reports;
5. The hearing strategy of the Medical Board in relation to the disciplinary proceedings before the HPT and QCAT; particularly its decisions to present as facts, assertions which Mr Broadbent did not regard as supported by the evidence available to the Board;
6. The Medical Board’s decisions to impose restrictions upon Mr Broadbent’s practicing certificate; and
7. The Medical Board’s response to Mr Broadbent’s request for information under ‘Freedom of Information Laws and rules’.
The Medical Board’s notice of motion
59 By its notice of motion, the Medical Board seeks the following orders:
1. That the application be dismissed on the basis of a want of jurisdiction.
2. Further or alternatively, an order that judgement be entered for the respondent pursuant to section 31A(2) of the Federal Court of Australia Act 1976.
3. Further or alternatively, an order that the application be dismissed pursuant to Order 20 Rule 5 of the Federal Court Rules.
4. Further or alternatively, an order that the application be dismissed on the basis that it is an abuse of process.
5. An order that the applicant pay the respondent’s costs of and incidental to the application on an indemnity basis.
Preliminary issues in relation to jurisdiction
60 Nowhere in Application does Mr Broadbent assert a ground of jurisdiction. On 11 January 2011, Mr Broadbent sent an email to the solicitors for the Medical Board asserting that “[t]he Health Practitioner Regulation National Law Act 2009 (Qld) and associated instruments give the Federal Court jurisdiction”. In response, the solicitors for the Medical Board sent Mr Broadbent an email on 24 January 2011 referring Mr Broadbent to s 6 of the Health Practitioner Regulation National Law Act 2009 (Qld) (“National Law Act”) and Chapter 2, Part 8, Div 2 of the QCAT Act; and, s 289(2)(b) of the National Law Act.
61 These provisions will be discussed in these reasons.
62 Mrs Houston deposes in her affidavit filed 9 February 2011 in support of the notice of motion that Mr Broadbent did not respond to her email of 24 January 2011 referring Mr Broadbent to the above provisions.
63 The Court on 14 February 2011 ordered Mr Broadbent to file short submissions setting out the basis upon which the Federal Court has jurisdiction to entertain the application. In response, the applicant filed “Brief Submissions” on 2 March 2011. The applicant also provided further written submissions at the hearing of the respondent’s notice of motion on 9 March 2011.
64 Whilst neither of the applicant’s submissions coherently outline a basis upon which the Federal Court has jurisdiction to entertain an application for judicial review of the alleged conduct of the Medical Board, the applicant’s principal contention seems to be that the Federal Court has jurisdiction to grant relief upon either or both the following grounds. First, that the Medical Board, or one or more of its officers, fell into error of the kind described as jurisdictional error, and as a result the constitutional writs are available to the applicant by way of supervisory review by the Federal Court to correct that error. Second, that the Medical Board, or one or more of its officers, made a decision or engaged in conduct for the purpose of making a decision, susceptible of review under the ADJR Act and a statutory remedy is available to the applicant as a result of an error made in making that decision or failing to make a decision.
65 The applicant also suggests that jurisdiction arises in the Federal Court pursuant to the Trade Practices Act 1974 (Cth) (the “TPA”); s 32(1) of the Federal Court of Australia Act 1976; the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth); and by reason of the Court’s accrued federal jurisdiction.
66 The applicant contends that through the combined operation of ss 75(v), 76(ii) and 77(i) of the Commonwealth Constitution, and ss 39B(1) and 39B(1A)(c) of the Judiciary Act 1903 the Federal Court has jurisdiction to issue constitutional writs of mandamus or prohibition or an injunction against an officer of the Commonwealth. However, the respondent contends that Mr Broadbent has failed to identify an officer of the Commonwealth against whom a writ might lie or identify jurisdictional error on the part of an officer of the Commonwealth.
67 At para 20 of his “Brief Submissions”, the applicant contends that the Medical Board and its officers became officers of the Commonwealth by the nationalisation of the regulation of the Australian health workforce in 2009 and 2010 and thus the conduct and decisions of the Medical Board are reviewable as agents of the Commonwealth.
68 The applicant contends that the enactment of the model law as a schedule (the “National Law”) to the Health Practitioners Regulation National Law Act 2009 (Qld) had the effect of nationalising the regulation of the health professions in Australia. However, the National Law Act and therefore the National Law did not commence operation until 1 July 2010. It is therefore difficult to see how the National Law Act had the effect of transforming the Medical Board (or its officers) into “officers of the Commonwealth” prior to that date (if at all).
69 The vast majority of the complaints made by the applicant in the present application centre upon conduct and decisions of the Medical Board before 1 July 2010. QCAT delivered its principal decision concerning Mrs MacLeod and Mrs Pearce on 10 June 2010.
70 Were officers of the Medical Board officers of the Commonwealth prior to 1 July 2010? If not, did they become officers of the Commonwealth after 1 July 2010 as a result of the enactment and commencement of the National Law Act and the National Law.
PART V - Creation and Powers of the Medical Board prior 1 July 2010
The legislation
71 The Medical Board was established by the Medical Practitioners Registration Act 2001 (Qld). The relevant provisions are these:
9 Establishment of board
(1) The Medical Board of Queensland is established.
(2) The board—
(a) is a body corporate; and
(b) has a common seal; and
(c) may sue and be sued in its corporate name.
10 Board’s relationship with the State
The board does not represent the State.
…
11 Functions of board
The board has the following functions—
(a) to assess applications for registration;
(b) to register persons who satisfy the requirements for registration;
(c) to monitor, and assess, whether registrants comply with any conditions of registration;
…
(p) to collect, and give to persons, information about the practice of the profession by registrants;
…
(q) to perform other functions given to the board under this or another Act.
15 Membership of board
(1) The board consists of—
(a) the chief health officer; and
(b) at least 6, but not more than 10, persons (the appointed members) appointed by the Governor in Council.
(2) The appointed members must include—
(a) persons who are registrants (the appointed registrant members); and
(b) persons (the public members) having an interest in, and knowledge of, consumer health issues who are not, and have not been—
(i) registered under a health practitioner registration Act or an earlier corresponding Act; or
(ii) registered or enrolled under the Nursing Act 1992 or an earlier corresponding Act; or
(iii) registered or enrolled under a law applying, or that applied, in another State or foreign country that provides, or provided, for the same matter as a health practitioner registration Act or the Nursing Act 1992 or a provision of the Act; and
(c) 1 lawyer nominated by the Minister.
(3) Also, the Minister may nominate persons who do not belong to the categories of persons mentioned in subsection (2) to be appointed members.
…
(6) In this section—
earlier corresponding Act, in relation to a health practitioner registration Act, means an earlier Act that provided for the same matter as the health practitioner registration Act or a provision of the health practitioner registration Act.
earlier corresponding Act, in relation to the Nursing Act 1992, means an earlier Act that provided for the same matter as the Nursing Act 1992 or a provision of the Nursing Act 1992
26 Remuneration of members
A member is entitled to be paid the fees and allowances decided by the Governor in Council.
36 Minister’s power to give directions in the public interest
(1) The Minister may give the board a written direction about a matter relevant to the performance of its functions under this Act if the Minister is satisfied it is necessary to give the direction in the public interest.
72 The chief health officer is defined in the dictionary as “…the chief health officer under the Health Services Act 1991 (Qld), section 57B.” Section 57B of the Health Services Act creates the office of the chief health officer and states that “[t]he chief health officer is to be employed as a public service officer, or as a health service employee.” Section 57C of the Health Services Act provides that the functions of the chief health officer are as follows:
…
(a) providing high level medical advice to the chief executive and the Minister on health issues, including policy and legislative matters associated with the health and safety of the Queensland public; and
(b) performing other functions given to the chief health officer under another Act.
73 Section 7 of the Medical Board (Administration) Act 2006 (Qld) creates the Office of the Medical Board of Queensland (the “Office”) and states that the Office is to consist of the executive officer and the staff of the office. Section 8 provides that the function of the Office:
…is to provide the administrative and operational support necessary or convenient to—
(a) help the [Medical] board to perform its functions; and
(b) help the executive officer to perform his or her functions and exercise his or her powers.
74 The following provisions of the Medical Board (Administration) Act are also relevant for present purposes:
10 Appointment of executive officer
(1) There is to be an executive officer of the office.
(2) The executive officer is to be appointed by the Governor in Council.
…
(5) The Public Service Act 2008 does not apply to the appointment of the executive officer.
11 Terms of appointment
(1) The executive officer is to be paid the remuneration and allowances decided by the Governor in Council.
(2) The executive officer holds office on terms, not provided for by this Act, decided by the Governor in Council.
13 Powers of executive officer
(1) The executive officer has power to do anything necessary or convenient for the performance of the office’s function or executive officer’s functions.
(2) Without limiting subsection (1), the executive officer may—
(a) enter into a service agreement with the [Medical] board; and
…
14 State and executive officer
The executive officer represents the State.
21 Office staff
The staff of the office are to be employed under the Public Service Act 2008.
22 Office to provide administrative and operational support under a service agreement
The office must provide administrative and operational support to the [Medical] board under a service agreement.
75 Having regard to these provisions, at least prior to 1 July 2010:
1. the Medical Board;
2. the Medical Board’s ‘appointed members’;
3. the chief health officer;
4. the Office of the Medical Board of Queensland;
5. the executive of the Office of the Medical Board of Queensland; and
6. the staff of the Office of the Medical Board of Queensland;
all drew their statutory existence and principal powers from legislation of the Queensland Parliament.
76 Did any of the actions or decisions of the Medical Board, its officers or the Office prior to 1 July 2010, in respect of the disciplinary proceedings taken against Mr Broadbent, involve an exercise of Commonwealth executive or administrative power?
77 Sections 125 and 126 of the HPPS Act conferred power on the Medical Board to commence disciplinary proceedings against Mr Broadbent by making the relevant referral to the HPT in respect of conduct concerning Mrs Pearce and Mrs MacLeod. The Medical Board is a party to the proceedings commenced in the HPT pursuant to s 214 of the HPPS Act. The jurisdiction of the HPT to hear disciplinary proceedings commenced by the Medical Board is created by Part 6, Division 6 of the HPPS Act. The power in the HPT to make a decision is conferred by ss 240-242 of the HPPS Act. Section 51 of the HPPS Act provides the Medical Board with the power to commence disciplinary proceedings or an investigation should they receive a complaint about the registrant from a user of a service provided by the registrant or from somebody acting on behalf of the user.
78 Section 59 of the HPPS Act provides that Medical Board may decide to suspend or impose conditions on a registrant’s registration if it reasonably believes at any time that the registrant poses a serious potential risk to the wellbeing of vulnerable persons and immediate action to suspend or impose conditions on the registrant’s registration is necessary to protect the vulnerable persons.
79 The Board’s decision to impose conditions upon Mr Broadbent’s registration under this provision is a matter that Mr Broadbent challenges in this application.
80 Under s 59(4) the Medical Board is compelled to either investigate the matter under the HPPS Act or refer the matter under s 126 of the HPPS to the HPT for hearing under Part 6, Division 6 should the Medical Board decide to suspend or impose conditions upon the registrant’s registration. Although neither party has put evidence before the Court in this regard, it appears that this is the power exercised by the Board to commence the investigation into Mr Broadbent’s treatment of Mrs MacLeod and Mrs Peace.
81 Under s 60 of the HPPS Act the Medical Board is compelled to record in its register as soon as practicable the details of any decision under s 59 to suspend or impose conditions on the registrant’s registration.
82 Part 5 of the HPPS Act provides the Medical Board with the power to commence and then conduct an investigation of registrants. It also provides for the manner of conducting such investigations. Under s 64 of the HPPS Act, when investigating a registrant, the Medical Board may either establish an investigation committee that consists of some or all of the Board’s members to conduct the investigation; or direct an investigator to conduct the investigation.
83 Where an investigation committee is established, s 69 of the HPPS Act provides that the investigation committee has for the purpose of conducting the investigation “… the powers given to it under this Act”. Where an investigator is relevantly directed, s 71 of the HPPS Act provides that the investigator has for the purpose of conducting the investigation “… the powers given to the person under this Act”. By s 72 the Medical Board can limit the powers of an investigator.
84 Section 111 of the HPPS Act provides the Medical Board with the power to obtain a written expert report from a person who the Medical Board reasonably considers is sufficiently qualified or experienced to give expert advice on the matter subject to the investigation. Section 112 of the HPPS Act provides that such a report can only be used as evidence in a proceeding commenced under the HPPS Act. Section 118 of the HPPS Act details the actions the Medical Board must take once the investigation is complete. The applicant’s current application challenges the Medical Board’s decisions (or decisions of its officers) concerning the commissioning and then use of expert reports under these provisions.
85 Section 12 of the HPPS Act provides that the Medical Board can delegate some of its powers under the HPPS Act to members of the Medical Board; the Executive Officer of the Office of the Medical Board; or, with the agreement of the Executive Officer, an appropriately qualified staff member of the Office of the Medical Board.
86 The establishment of QCAT did not affect the powers of the Medical Board, its officers, the Office of the Medical Board or the executive of the Office of the Medical Board outlined above in any relevant way (see Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 (Qld), ss 1034-1096 and 1100-1107). The effect of the Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 (Qld) was to transfer the HPT’s disciplinary jurisdiction under the HPPS Act to QCAT (see ss 1044-1046 and 1096) and make consequential amendments to the Medical Practitioners Registration Act 2001 (Qld) to provide for this transition (ss 1100-1107). Sections 247 and 248 of the QCAT Act have the effect of abolishing the HPT and designating QCAT as its successor in law.
87 As the disciplinary proceedings concerning Mrs Pearce and Mrs MacLeod were transferred to QCAT, the transitional provisions set out in the QCAT Act applied. Sections 245 and 256 of the QCAT Act relevantly provide that:
245 What is a pending proceeding
An existing proceeding in a court or former tribunal is a pending proceeding if, at the commencement, the court or former tribunal—
…
(b) has started to hear a matter the subject of the proceeding but has not started to consider evidence for the purpose of making its final decision in the proceeding.
256 Pending proceeding
(1) This section applies to an existing tribunal proceeding that is a pending proceeding.
(2) At the commencement, the proceeding is taken to be a proceeding before QCAT.
(3) QCAT has jurisdiction to deal with the matter the subject of the proceeding under this Act.
88 Chapter 2, Part 8, Div 2 of the QCAT Act provides parties to proceedings before QCAT with a right of appeal to the Queensland Court of Appeal in particular circumstances.
89 It follows from the statutory provisions of the Queensland legislation discussed at [71] to [88] that the actions taken and decisions made by the Medical Board or its officers in:
1. Receiving and acting on complaints about the applicant in regards to Mrs MacLeod [it is not clear on the material before the Court whether the Medical Board received a complaint in regards to Mrs Pearce];
2. Commencing and prosecuting disciplinary proceedings against the applicant in the HPT (and subsequently in QCAT) in regards to Mrs Pearce and Mrs MacLeod;
3. Imposing conditions on the applicant’s registration;
4. Investigating the applicant’s conduct in relation to his treatment of Mrs Pearce and Mrs MacLeod; and
5. Commissioning expert reports regarding the applicant’s conduct in relation to his treatment of Mrs Pearce and Mrs MacLeod and then subsequently relying upon such reports in the disciplinary proceedings;
were authorised or required of the Medical Board or a person or an entity authorised to act on behalf of the Medical Board, by provisions of the HPPS Act (leaving aside any question of the merits of the actions taken or decisions made) and no exercise of Commonwealth executive or administrative power was engaged in taking these steps.
PART VI – ENGAGING RELIEF BY OPERATION OF THE COMMONWEALTH CONSTITUTION AND THE JUDICIARY ACT 1903
90 Mr Broadbent’s application raises these questions.
91 First, does the application engage what I will call a “federal element” by reason of the cooperative adoption by each participating jurisdiction of a national scheme of accreditation and registration of the Australian health workforce?
92 Second, if it does so engage, does the application raise any arguable basis upon which relief might lie?
93 Third, does the application simply represent an attempt to attract a ground of federal jurisdiction so as to re-agitate matters already agitated before the Supreme Court of Queensland and the Queensland Court of Appeal with the result that the application is an abuse of process?
94 Fourth, what orders ought to be made on the Medical Board’s notice of motion including any orders as to costs?
Framework principles
95 In examining these questions and the so-called nationalisation or federalisation of Australian health services from 1 July 2010 under the National Law as adopted by the National Law Act, so as to determine whether conduct or decisions of the Medical Board are arguably susceptible of judicial review in this Court, it is important to remember these things.
96 Section 75(v) of the Constitution confers original jurisdiction on the High Court in all matters in which a writ of mandamus or prohibition or an injunction is sought against an “officer of the Commonwealth”. Although Ch III makes no reference to certiorari, the power to issue certiorari in cases of excess of jurisdiction (including an excess of jurisdiction by reason of a denial of procedural fairness by an officer of the Commonwealth) is ancillary or incidental to the effective exercise of the jurisdiction to issue writs of mandamus and prohibition (Re Refugee Tribunal; Ex Parte AALA (2000) 204 CLR 82 at [14] per Gaudron and Gummow JJ). Apart from jurisdictional error, certiorari may also issue in the exercise of jurisdiction under s 75(iii) and s 76(i) (Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476).
97 Section 76(ii) confers original jurisdiction on the High Court in any matter arising under any laws made by the Commonwealth Parliament, and by s 77(i), the Parliament may make laws defining the jurisdiction of any federal court with respect to any of the matters mentioned in ss 75 and 76. In the present context, the “basic proposition” is that prohibition in s 75(v) is concerned with the prevention of ultra vires activity by officers of the Commonwealth (AALA at [16]). Prohibition will lie to an officer of the Commonwealth exercising judicial or quasi-judicial functions, or powers conferred by statute where on its proper construction an obligation to accord procedural fairness has not been extinguished or limited (AALA at [41] per Gaudron and Gummow JJ). Certiorari issues to remove the relevant decision of the Commonwealth officer into the Court to be quashed and mandamus issues to direct the Commonwealth decision-making officer to decide the question according to law.
98 However, importantly, the jurisdiction conferred under s 75(v) ensures that the Court can restrain officers of the Commonwealth from exceeding federal power. The expression “an officer of the Commonwealth” is a very broad expression (AALA at [161] per Hayne J). It includes, for example, Judges of federal courts but is not limited to such officers. An officer of the Commonwealth may be restrained by prohibition in respect of activity undertaken in reliance upon an invalid law of the Parliament, or activity beyond the executive power of the Commonwealth identified in s 61 of the Constitution (AALA at [22] per Gaudron and Gummow JJ). Prohibition will issue to executive officers of the Commonwealth if the power they seek to exercise has not been validly conferred (R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 217-218 per Brennan J). Unlike prohibition, mandamus and injunction have never been confined to duties or decisions of a judicial character and thus it follows that s 75(v) of the Constitution is not confined to cases in which the identified remedies are sought against those who exercise the judicial power of the Commonwealth (AALA at [161] per Hayne JJ).
99 Section 39B of the Judiciary Act makes clear, as an expression of the Commonwealth’s legislative power under s 77(i), that the original jurisdiction of this Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition (and certiorari) or injunction is sought against an officer of the Commonwealth. Section 39B(1A)(c) confers original jurisdiction on this Court in any matter arising under any laws made by the Commonwealth Parliament other than, put simply, a criminal matter.
100 An officer of the Commonwealth is a person appointed by the Commonwealth to an identifiable office who is paid by the Commonwealth for the performance of their functions under the office and who is responsible to and removable by the Commonwealth concerning the office: R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437 at 452-453, per Isaacs J; Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co. Limited [No. 1] (1914) 18 CLR 54 at 62 per Griffith CJ; at 66-67 per Barton J; at 79-80 per Isaacs J; at 82-83 per Gavan Duffy and Rich JJ; Northern Territory of Australia v Lane and Others (1995) 59 FCR 332 at p 351 per O’Loughlin J; and Trimbole v Dugan (1984) 3 FCR 324, per Woodward J at pp 327-329.
101 Questions sometimes arise as to whether State officers (such as judges of State Courts invested with federal jurisdiction) are officers of the Commonwealth (R v Murray and Cormie); whether a State officer (a stipendiary magistrate) acting under an authority given by the Commonwealth Attorney-General for the purposes of the Extradition (Foreign States) Act 1966 (Cth) converted the stipendiary magistrate into an officer of the Commonwealth (Trimbole v Dugan); whether a State stipendiary magistrate performing administrative functions under the Extradition Act 1988 (Cth) is an officer of the Commonwealth (although the question was not decided): Vasiljkovic v The Commonwealth (2006) 227 CLR 614 at pp 646-647 per Gummow and Hayne JJ); whether the source of the powers exercised by the relevant decision-maker are authorised by a Commonwealth Act (Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117; whether State administrative officers exercising functions under a Commonwealth law would remain outside the notion of an officer of the Commonwealth (see the discussion in Judicial Review of Administrative Action, Aronson, Dyer and Groves, 2009 4th Ed., at p 38); and whether independent contractors employed by the Department of Immigration and Citizenship to conduct independent merits review of protection visa applications are officers of the Commonwealth (Plaintiff M61/2010E v Commonwealth and Others (2010) 272 ALR 14 at [51] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (assuming without deciding the question that they were not officers of the Commonwealth).
102 However, none of these many considerations arise in this case.
103 In McGowan v Migration Agents Registration Authority (2003) 129 FCR 118, Branson J at [26] concluded that the authorities support the proposition that a body corporate cannot be an officer of the Commonwealth (citing Broken Hill Pty Co Ltd v National Companies & Securities Commission (1986) 61 ALJR 124 at 127 per Dawson J; Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 500 per Gummow J and Vietnam Veterans’ Affairs Associate of Australia NSW Branch Inc v Cohen (1996) 70 FCR 419 at 432 per Tamberlin J). Aronson et al have criticised this position (see pp 39 and 40). Those authors suggest that the position may no longer be maintained as the High Court has held that if the legislation simply “establishes” a tribunal of many members and does not give them corporate status, the tribunal can nevertheless be an officer of the Commonwealth. Accordingly, there seems to be no good reason to distinguish between the decisions of a body of people simply on the basis of whether the relevant legislation accords them corporate status or not, and avoiding colourable evasion, is a policy that has allowed a broad approach to be taken to the scope of s 75(iii) and (iv) (see The Federal Judicature: Chapter III of the Constitution, Stellios, LexisNexis Butterworths, 2010 at 7.89 and 7.55).
Conclusions concerning the position prevailing before the commencement of the “national scheme” on 1 July 2010
104 In circumstances where the Medical Board owes its existence, power, functions and operation to legislation of the Queensland Parliament and is subject to directions by the relevant Minister of the Crown in Queensland, the Board is not an officer of the Commonwealth.
105 Moreover, as the Medical Board members are appointed under legislation of the Parliament of Queensland and by the Governor-in-Council; remunerated on terms determined by the Governor-in-Council; and exercise powers conferred under legislation of the Queensland Parliament, the members of the Medical Board are not officers of the Commonwealth.
106 Further, nothing suggests that any of the actions or decisions of the Medical Board or its officers prior to 1 July 2010 engaged the exercise of a power conferred under Commonwealth legislation.
107 The Office of the Medical Board is a creature of legislation of the Queensland Parliament. The powers of the Office are limited to providing the Medical Board with operational and administrative support to assist the Medical Board in the discharge of its functions. The executive of the Office is appointed by the Governor-in-Council on terms determined by the Governor-in-Council; remuneration is paid by the State; and the Office represents the State of Queensland. See [74] and [88] of these reasons.
PART VII - The COMMENCEMENT OF THE NATIONAL Law on 1 July 2010
Background concerning the introduction of the National Law
108 In 2005, the Commonwealth Government requested the Productivity Commission to undertake a research study to examine issues affecting health workers including the “supply of, and demand for, health workforce professionals” and to “propose solutions to ensure the continued delivery of quality healthcare over the next 10 years” (Preamble, clause 2.1, Intergovernmental Agreement for a National Registration and Accreditation Scheme for the Health Professions (the “Intergovernmental Agreement”).
109 In January 2006, the Productivity Commission delivered its report entitled Australia’s Health Workforce.
110 The report recommended that there should be a single national registration board for health professionals as well as a single national accreditation board for health professional education and training. At a meeting of 14 July 2006, the Council of Australian Governments (“COAG”) agreed to establish a single national registration scheme for health professionals beginning with the nine professional groups then registered in all jurisdictions. COAG further agreed to establish a separate national accreditation scheme for health education and training.
111 COAG agreed at its meeting of 13 April 2007 to establish a single national scheme with a single national agency encompassing both the registration and accreditation functions. The national registration and accreditation scheme would consist of a “Ministerial Council, an independent Australian Health Workforce Advisory Council, a national agency with an agency management committee, national profession-specific boards, committees of the boards, a national office to support the operations of the scheme and at least one local presence in each State and Territory” (Preamble, clause 2.5, Intergovernmental Agreement; Explanatory Notes, pp 2-3, Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008 (the “Administrative Arrangements Bill”).
112 On 26 March 2008, the Commonwealth and the States of New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania, the Australian Capital Territory and the Northern Territory entered into the Intergovernmental Agreement.
113 The Intergovernmental Agreement recites that the objectives of the Agreement include an objective of establishing a single national registration and accreditation scheme for health professionals beginning with the nine professions then registered in all participating jurisdictions (the professions being, physiotherapy, optometry, nursing and midwifery, chiropractic care, pharmacy, dental care (dentists, dental hygienists, dental prosthetists and dental therapists), medicine, psychology and osteopathy).
114 The new scheme would commence on 1 July 2010.
115 As to implementation, the States and Territories undertook to use their best endeavours to submit to their respective parliaments whatever bill or bills would be necessary to give effect to achieving a national scheme from 1 July 2010 (clause 6.1, Intergovernmental Agreement). The structure and functions of the national scheme were to be set out in the legislation establishing the scheme. The State of Queensland would host the substantive legislation to give effect to the national scheme subject to the approval of the Australian Health Ministers’ Conference (“AHMC”). Once approved by the AHMC, the State of Queensland would take the lead in enacting the primary legislation to establish the scheme (clause 6.3). The remaining States and Territories agreed to use their best endeavours to enact legislation in their jurisdictions applying the Queensland model legislation as a law of those jurisdictions so as to permit the scheme to be established on 1 July 2010 (clause 6.4). The parties agreed to take steps to modify other legislation inconsistent with legislation establishing the new scheme (clause 6.6).
116 The States and Territories also agreed to use their best endeavours to ensure legislation, as appropriate, would provide for entities in their jurisdiction to investigate and hear serious disciplinary matters and the hearing of appeals against less serious disciplinary matters arising from the registration function. Each State and Territory would be responsible for deciding which entity would be responsible for that function in their jurisdiction in accordance with national criteria agreed by the AHMC (see clause 6.8).
117 In the interests of achieving a smooth transition to the national scheme, the AHMC would administratively establish a national agency with an interim Chief Executive Officer to commence the implementation of the scheme (clause 6.9). To further ensure a smooth transition to the scheme, all existing members of jurisdictional boards and supporting hearing panels for the nine professions would, if they agreed, be appointed to a list of persons from which national boards might form committees for a period of two years from the commencement of the operation of the scheme.
118 Attachment A to the Intergovernmental Agreement more particularly describes the structure and functions of the scheme.
119 The implementation of the national scheme was to be effected by a national law passed by the State of Queensland as the host jurisdiction. The first stage of implementing the national scheme was to be effected by enacting the Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 (Qld) (the “Administrative Arrangements Act”). The substantive provisions of the national scheme would be the subject of proposed second stage legislation emerging out of further consultation with the professions and other interested persons. The second stage legislation became the Health Practitioner Regulation National Law Act 2009 (Qld) which by s 4 applied the Health Practitioner Regulation National Law (often described as the model law) set out in the schedule to that Act as a law of the jurisdiction of Queensland as from 1 July 2010.
120 The Explanatory Notes for the Administrative Arrangements Bill describes the policy objectives of the Bill as the establishment of the various organs of the national scheme. The Bill provided for the establishment of the Australian Health Workforce Ministerial Council which would appoint members to the Agency Management Committee and the National Boards, and issue policy directions as needed to facilitate the first stage implementation of the national scheme. The Ministerial Council would comprise Ministers of the governments of each participating jurisdiction and the Commonwealth Minister with portfolio responsibility for health.
121 The Bill also provided for the establishment of the Australian Health Practitioner Regulation Agency (the “National Agency”) which would be responsible for the administration of the national scheme in accordance with the legislation of each jurisdiction and policy directions issued by the Ministerial Council. The Bill also provided for the establishment of National profession-specific boards for the health professions within the scope of the national scheme. The Bill also provided for the establishment of the Australian Health Workforce Advisory Council (the “Advisory Council”) to provide independent advice to the Ministerial Council on matters related to the national scheme.
122 The Bill contemplated that the National Agency would be operational on 1 February 2009 and the National Boards would be operational on 1 July 2009.
123 The Administrative Arrangements Act was enacted by the Queensland Parliament in November 2008 to give effect to the establishment of the organs of the national scheme as discussed. Section 7 of the Schedule to the Administrative Arrangements Act provides that the Ministerial Council may give directions to the National Agency and to a National Board. Section 13 establishes the Advisory Council and ss 14, 16 and 17 set out the functions, powers and membership of the Advisory Council. Section 18 establishes the National Agency and ss 19 and 20 set out the powers and functions of the National Agency. Section 24 establishes the Agency Management Committee and its functions are set out at s 26. The functions of the Chief Executive Officer of the National Agency are set out at s 29. Section 37 establishes each of the National Boards for the health professions listed in the table under s 37 of which there are 10. Sections 38, 39, 42 and 43 set out the membership, eligibility for appointment, functions and powers of the National Boards. Section 45 provides for the establishment of committees by a National Board to do any of the things set out in s 45.
124 The Parliament of Queensland then enacted the Health Practitioner Regulation National Law Act 2009. That Act received assent on 3 November 2009 and the national law became a law of the State of Queensland as from 1 July 2010. Other States and Territories also enacted legislation adopting the National Law so as to create a uniform legislative scheme across the country. (See Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW); Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic); Health Practitioner Regulation National Law (ACT) Act 2010 (ACT); Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT); Health Practitioner Regulation National Law (Tasmania) Act 2010; Health Practitioner Regulation National Law (South Australia) Act 2010 (SA); Health Practitioner Regulation National Law (WA) Act 2010 (WA).
125 Section 10 of the National Law Act (that is, the Queensland Act) had the effect of repealing the Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 (Qld) from 1 July 2010 and the organs of the national scheme established under that Act were carried forward under the National Law Act.
126 The Queensland Parliament also enacted the Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 (the “Amendment Act”) which made administrative and consequential amendments to Queensland legislation necessary to reflect the commencement of the national scheme. Also see [132] of these reasons. The Amendment Act also made minor amendments to the National Law.
Has the introduction of the National Law in Queensland transferred authority to the Commonwealth or transformed the Medical Board of Queensland into officers of the Commonwealth?
127 The National Law, enacted as a law of the State of Queensland by operation of s 4 of the National Law Act, plainly enough, is not a law of the Commonwealth. Section 6 of the National Law Act declares QCAT as the responsible tribunal for the purposes of the National Law in Queensland.
128 The adoption in Queensland of the National Law involved no transfer of authority in a constitutional sense to the Commonwealth of jurisdiction in respect of the establishment, powers or functions of the organs of the national scheme. The executive governments of each participating jurisdiction entered into the Intergovernmental Agreement and each jurisdiction enacted uniform legislation, based on the model law. The national scheme is the expression of cooperative federalism to establish, by State legislative instruments in each separate jurisdiction, a common or uniform set of laws and organs to achieve the particular policy objectives adopted by COAG and reflected in the State legislation. The model law was enacted by the State of Queensland as host jurisdiction and foundation constitutional actor in developing the national scheme.
129 The Explanatory Notes to the Health Practitioner Regulation National Law Bill 2009 (Qld) at p 7 notes:
The COAG agreement identifies Queensland as host of the proposed National Law. [The National Law Act] incorporates and builds on the legislative provisions of Act A, which was designed to encompass the COAG agreement made between the Premiers and Chief Ministers of all States and Territories, and the Prime Minister of Australia. The regulatory model is one of federal co-operation by agreement between States and Territories. [The National Law Act] is not Commonwealth law, and participating States and Territories are not referring powers to the Commonwealth.]
[emphasis added]
130 The only legislation enacted by the Commonwealth in relation to the introduction of the national scheme is the Health Practitioner Regulation (Consequential Amendments) Act 2010 (Cth) which provides for consequential amendments to Commonwealth legislation to recognise and support the implementation of the national scheme by the participating jurisdictions. The Commonwealth Act also addresses the processes involved in the recognition of medical practitioners under the Health Insurance Act 1973 (Cth) for the purpose of facilitating Medicare claims.
131 So far as the functions of the Medical Board are concerned, the following should be noted.
132 The Medical Practitioners Registration Act 2001 (Qld) and the Medical Board (Administration) Act 2006 (Qld) were repealed on 1 July 2010 by s 123 of the Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 (Qld). According to the Explanatory Notes to the Health Legislation (Health Practitioner Regulation National Law) Amendment Bill 2010 this had the effect of abolishing the Medical Board and the Office of the Medical Board (see Explanatory Notes at p 4.5, 30-37). All matters previously dealt with by the Medical Board under the Medical Practitioners Registration Act 2001 (Qld) are to be dealt with under the National Law by the Medical Board of Australia after 1 July 2010. The administrative support that the Office of the Medical Board previously provided to the Medical Board is, post 1 July 2010, provided to the Medical Board’s successor, the Medical Board of Australia by the Australian Health Practitioner Registration Agency.
133 Section 31 of the National Law establishes the Medical Board of Australia and s35 sets out its functions.
134 The Medical Board’s assets and liabilities (with the exception of employment contracts) are transferred to the Medical Board of Australia under s 295 of the National Law, whilst the Medical Board’s records relating to the registration and accreditation of registrants is transferred to the Medical Board of Australia under s 296.
135 Part 12, Division 13 of the National Law sets out the transitional provisions relating to complaints, notifications and disciplinary proceedings commenced under the Health Practitioners (Professional Standards) Act 1999 (Qld), consequent upon the commencement of the National Law Act on 1 July 2010. The commencement date of 1 July 2010 is referred to in the National Law as the “participation date”. Section 289 of the National Law relevantly provides:
289 Complaints and notifications being dealt with on participation day
(1) This section applies if, immediately before the participation day for a participating jurisdiction, a local registration authority for the jurisdiction had started but not completed dealing with a complaint or notification about a person registered in a health profession by the authority.
(2) From the participation day—
(a) the complaint or notification is taken to be a notification made under this Law and is to be dealt with by the National Board for the health profession; and
(b) the notification is to continue to be dealt with under the Act of the participating jurisdiction under which it was made, and any proceedings or appeal relating to the notification may be dealt with, as if that Act had not been repealed.
(3) For the purposes of this section, the Act of the participating jurisdiction applies—
(a) as if a reference to the local registration authority were a reference to the National Board; and
(b) with any other changes that are necessary or convenient.
(4) The National Board must give effect to a decision made on an inquiry, investigation, proceeding or appeal completed under the Act of the participating jurisdiction as if it were a decision under this Law.
[emphasis added]
136 Section 250 of the National Law defines “local registration authority” as “an entity that had functions under a law of a participating jurisdiction that included the registration of persons as health practitioners”. The Medical Board of Queensland had that function under s 11 of the Medical Practitioners Registration Act 2001 (Qld). The Medical Board of Queensland thus falls within the definition of a local registration authority.
137 At the commencement date of the National Law on 1 July 2010, proceedings had been started by the Medical Board of Queensland before QCAT concerning the notification in relation to Mr Broadbent’s conduct in connection with Mrs MacLeod and Mrs Pearce but those proceedings had not been completed. By 1 July 2010, the hearings in relation to penalty and costs had not been completed before QCAT.
138 Section 289(2)(a) provides that in respect of such a notification, the notification from 1 July 2010, is taken to be a notification made under the National Law and is one to be dealt with by the National Board for the health profession, namely, the Medical Board of Australia. However, by reason of the conjunction with s 289(2)(b), the notification continues to be dealt with under the Act of the participating jurisdiction under which it was made. That Act so far as it relates to Mr Broadbent is the HPPS Act.
139 The Medical Board of Queensland remained the applicant before QCAT in relation to the questions of penalty and costs. Those matters were the subject of QCAT’s decision on 2 September 2010. The undertaking given by Mr Broadbent earlier mentioned was framed in terms of never seeking registration with the National Board for the Health Profession in Australia responsible for registration, namely the Medical Board of Australia.
140 Although s 289 contemplates that the notification (which continues under the Act of the jurisdiction under which the notification was made) is to be dealt with by the Medical Board of Australia, that circumstance is the subject of further transitional arrangements made by Division 5 of Part 13 of the HPPS Act (inserted by s 57 of Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 which also commenced on 1 July 2010). Section 405N of the HPPS Act provides for the application of s 289 of the National Law in the following terms:
405N Existing complaints and related proceedings and appeals
(1) This section provides for the application of the National Law (Queensland), section 289 to the following—
(a) an existing complaint;
(b) any proceedings or appeal relating to an existing complaint.
(2) The National Law (Queensland), section 289 applies to a this Act existing complaint, and any proceedings or appeal relating to a this Act existing complaint, as if the reference in subsection (2)(b) of that section to the application of an Act of a participating jurisdiction as if that Act had not been repealed included, for the complaint, a reference to the application of this Act as if it had not been amended by the amending Act.
(3) For applying the National Law (Queensland), section 289 to a complaint made to a former board—
(a) the board does not complete dealing with the complaint until—
(i) the time for exercising any review rights or appeal rights in relation to the complaint has passed without any rights being exercised; or
(ii) any review or appeal in relation to the complaint has ended; and
(b) for a this Act existing complaint—this Act must be read as if sections 12(1) and 13 do not apply to a national board dealing with the complaint under the National Law (Queensland), section 289; and
....
(4) Also, to remove any doubt, it is declared that the QCAT Act continues to apply in relation to—
(a) any proceeding by the tribunal under National Law (Queensland), section 289 as applied by this section; and
(b) any appeal against the tribunal’s decision in the proceeding.
….
(6) In this section—
complaint means—
(a) a complaint under this Act as in force before the commencement; or
(b) a complaint under the repealed Nursing Act 1992 as in force before its repeal.
existing complaint means a complaint about a person registered in an NRAS health profession by a former board that the former board had started but had not completed dealing with immediately before the commencement.
former board, in relation to the dental prosthetics profession, includes the Dental Technicians Board of Queensland established under the Dental Technicians Registration Act 2001.
Nursing Act existing complaint means a complaint under the repealed Nursing Act 1992 as in force before its repeal that is an existing complaint.
this Act existing complaint means a complaint under this Act as in force before the commencement that is an existing complaint.
[emphasis added]
141 Section 405L of the HPPS Act defines “amending Act” to means the Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 (Qld).
142 The term “former board” is also defined to include the Medical Board in the Schedule dictionary to the HPPS Act as amended by the Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 (Qld).
143 The effect of Division 5 (and, in particular, s 405N) of the Part 13 “Transitional provisions” of the HPPS Act is to vest the continuing responsibility to deal with an existing complaint not completed prior to 1 July 2010 in the Medical Board of Queensland.
144 The operation of s 405N(2) of the HPPS Act has the effect that s 289(2)(b) of the National Law is to be read such that the notification continues to be dealt with under the HPPS Act (and any proceedings or appeal relating to the notification may be so dealt with), as if the HPPS Act had not been amended by the Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 (Qld). This provision is designed to save the powers granted to the Medical Board of Queensland under the HPPS Act prior to 1 July 2010 in respect of an existing, uncompleted complaint commenced under the HPPS Act. Section 405N(3) seeks to make that position more plain by providing that in applying s 289 of the National Law to a complaint made to a former Board, the Board (being the Medical Board of Queensland) does not “complete dealing” with the complaint until the exhaustion of the circumstances set out in s 405N(3)(a)(i) and (ii).
145 Although the drafting of the provisions is a little clumsy in its phrasing, the combined operation of s 289 of the National Law as adopted by the National Law Act and s 405N of the HPPS Act is that the Medical Board of Queensland continues to be responsible for the carriage of the disciplinary proceedings against Mr Broadbent concerning Mrs MacLeod and Mrs Pearce and any subsequent appeals arising from those proceedings after 1 July 2010 and is to conduct those disciplinary proceedings in accordance to the HPPS Act as it existed prior to 1 July 2010.
146 In short, the transitional provisions continue to engage the Medical Board of Queensland in respect of notifications prior to 1 July 2010 until those proceedings are completed according to the exhaustion factors described in those provisions.
147 If the disciplinary proceedings against Mr Broadbent were not commenced by the Medical Board consequent upon receipt of a complaint under s 125 of the HPPS Act, but were commenced, without the receipt of a complaint, s 405O of the HPPS Act (as amended) (within the transitional provisions) which addresses an existing non-complaint disciplinary proceeding (and appeals from such a proceeding), is in near identical terms to s 405N.
148 It follows that in the period after 1 July 2010, the Medical Board with respect of the disciplinary proceedings against Mr Broadbent concerning Mrs MacLeod and Mrs Pearce, continued, under the transitional provisions, to exercise the same powers conferred upon it under the HPPS Act as it exercised prior to 1 July 2010. In any event, even if the powers resided in the Medical Board of Australia, those powers derived from and are exercised pursuant to State legislation in each jurisdiction. It also follows that the National Law Act and the Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 (Qld) cannot be said to have “converted” the Medical Board or its officers, into “officers of the Commonwealth”.
149 This result is not altered by the consideration that the National Law (as adopted in Queensland by the National Law Act) provides that the Privacy Act 1988 (Cth), the Freedom of Information Act 1982 (Cth) and the Ombudsman Act 1976 (Cth) all apply as a law of a participating jurisdiction for the purposes of the national registration and accreditation scheme. That result follows because each State jurisdiction adopted or enacted the content of those Acts as if they were Acts of the Parliament of a State jurisdiction. The legislation adopting the content of those Acts rendered the content a State law of the jurisdiction.
PART VIII - Other Legislation relied upon by the Applicant
150 Mr Broadbent also relies upon other Commonwealth legislation as a source of jurisdiction.
151 The applicant relies principally upon the Mutual Recognition Act 1992 (Cth) and the Trans-Tasman Mutual Recognition Act 1997 (Cth). Mr Broadbent’s principal submission is that these Acts represent the commencement of the “federalisation of the health industry” which enlivens federal jurisdiction.
152 The Mutual Recognition Act was passed by the Commonwealth in reliance upon s 51(xxxvii) of the Constitution, the participating States having requested the Commonwealth to enact the Act. The Mutual Recognition Act was enacted to implement two principles (see Mutual Recognition Act, s 3 and Second Reading Speech delivered on 3 November 1992). The first is that goods sold lawfully in one State or Territory should be able to be sold in other States and Territories regardless of whether that good meets the regulatory requirements of those States and Territories. The second is that if a person is registered to carry out an occupation in one State or Territory, they should be able to be registered and carry on the equivalent occupation in the other States or Territories. The mutual recognition principle is expressly subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in another State so long as those laws apply equally to all registrants and are not based upon the possession of some qualification relating to fitness to carry on the occupation (s 17(2)).
153 The Mutual Recognition Act only applies to States and Territories whilst they remain a participating jurisdiction, that is, until they withdraw a referral of power to the Commonwealth. The Mutual Recognition (Queensland) Act 1992, s 5(4) expressly reserves the right of the Governor, at any time, to fix by proclamation a day as the day on which the reference to the Commonwealth terminates. The reference has not been terminated
154 Mr Broadbent complains in his submissions that the Medical Board may have disseminated information regarding his disciplinary proceeding to other medical boards in other jurisdictions.
155 As to that complaint, the relevant provisions of the Mutual Recognition Act 1992 (Cth) are these:
4 Interpretation
local registration authority of a State for an occupation means the person or authority in the State having the function conferred by legislation of registering persons in connection with their carrying on that occupation in the State.
33 Disciplinary action
(1) If a person’s registration in an occupation in a State:
(a) is cancelled or suspended; or
(b) is subject to a condition;
on disciplinary grounds, or as a result of or in anticipation of criminal, civil or disciplinary proceedings, then the person’s registration in the equivalent occupation in another State is affected in the same way.
(2) However, the local registration authority of the other State may reinstate any cancelled or suspended registration or waive any such condition if it thinks it appropriate in the circumstances.
(3) This section extends to registration effected apart from this Act.
…
34 Review of decisions
(1) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Tribunal for review of a decision of a local registration authority in relation to its functions under this Act.
37 Furnishing information
(1) A local registration authority of a State must furnish without delay any information reasonably required by a local registration authority of another State about a person substantively registered under a law of the first-mentioned State.
(2) The obligation imposed under this section does not apply unless the authority of the other State notifies the authority of the first-mentioned State that the information is required in connection with:
(a) a notice lodged by a person seeking registration; or
(b) a person’s deemed registration; or
(c) actual or possible disciplinary action against the person.
(3) The authority of the first-mentioned State may provide the information, despite any law relating to secrecy or confidentiality.
(4) Nothing in this section affects any obligation or power to provide information apart from this section.
[emphasis added]
156 On the facts, s 33(1) may not apply in the circumstances of Mr Broadbent’s surrender of his registration as a medical practitioner. If s 33 does apply, it operates to “affect” Mr Broadbent’s registration in all participating jurisdictions in the way in which that registration is affected in the home jurisdiction. Under s 37(1), a local registration authority for the State of Queensland must, subject to the s 37(2) factors, furnish any information reasonably required of it by a local registration authority of another State concerning a person registered in Queensland.
157 Mr Broadbent seeks to challenge conduct of the Medical Board as to this issue, on the hypothesis that the Medical Board may have provided information concerning the disciplinary proceedings taken against him to one or more State medical boards being a local registration authority in the relevant State. It seems to follow that Mr Broadbent then says that his application, as a matter of jurisdiction, addresses dissemination conduct of the Medical Board that occurred under s 37 of the Mutual Recognition Act 1992 (Cth) and thus the application addresses a matter arising under a law of the Commonwealth Parliament for the purposes of s 39B(1A)(c) of the Judiciary Act.
158 The difficulty however is that the application does not assert such a matter and nor does it identify a ground of challenge on this footing. There is no basis identified of a challenge to the hypothecated provision of any information by the Medical Board to any other medical board. No attempt is made to demonstrate (if it was done), why the provision of any relevant information (unidentified) constitutes a contravention of s 37 of the Act (if that be the contention).
159 So far as the application is concerned, it is completely devoid of any content as to such a proposition.
160 It follows that no ground of jurisdiction is identified on this basis.
161 It should also be noted that the Administrative Appeals Tribunal is given jurisdiction to hear applications for review of decisions of a local registration authority, under the Mutual Recognition Act.
162 The Trans-Tasman Mutual Recognition Act 1997 (Cth) is of no relevance to the present application as the Act deals with the registration within Australia of those who are entitled to practice certain occupations in New Zealand. The only potentially relevant provision is s 37 which is in essentially the same terms as s 37 of the Mutual Recognition Act and the observations made in relation to that section apply to this section.
163 Mr Broadbent also contends that the Medical Board’s actions adversely affected his capacity to practice from September 2007 resulting in his retirement from practice on 7 October 2008 and by its conduct in that period, the Medical Board caused rights and entitlements arising in connection with the application of the Medicare Australia Act 1973 (Cth), the Health Insurance Act 1973 (Cth), the Financial Management and Accountability Act 1977 (Cth) and the Public Service Act 1999 (Cth) to be adversely affected in their operation so far as the application of those four Commonwealth Acts related to Mr Broadbent. Mr Broadbent does not identify any steps or actions taken by the Medical Board in the exercise of a power arising under any of these four Acts. His submission (although not reflected in the application document) seems to be that the conduct of the Board in the relevant period prevented rights or entitlements under the Acts from being taken up and thus the application addresses a “matter arising” under a law of the Commonwealth Parliament thus engaging s 39B(1A)(c). The “matter” is not identified nor is the ground upon which s 39B(1A)(c) might be engaged.
164 It follows that no ground of jurisdiction is made out in reliance upon four Commonwealth Acts.
PART IX - Failure to indentify a “jurisdictional error”
165 The respondent contends that even if Mr Broadbent is able to satisfy the Court that the Medical Board, its executive officer, or its staff took steps as officers of the Commonwealth, the applicant has failed to indentify any arguable error constituting a jurisdictional error made by the relevant officer.
166 The principles are these.
167 For the purposes of s 75(v) of the Constitution and, so far as this Court is concerned, s 39B(1) of the Judiciary Act, jurisdictional error will occur where an officer of the Commonwealth has failed to exercise or has exceeded the conferred jurisdiction. An officer may exceed jurisdiction by acting beyond the scope of the legislation or by exceeding the limits of executive power or by acting under invalid provisions of a Commonwealth Act. A failure to provide procedural fairness constitutes jurisdictional error (AALA; Plaintiff S 157/2002 v The Commonwealth (2003) 211 CLR 476). A public officer who knowingly acts in excess of that officer’s power may commit the tort of misfeasance in public office and it is unlikely, except in the clearest terms, that legislation would be construed so as to encompass deliberate failures to administer the law according to its terms (Commissioner of Taxation v Futuris Corporation (2008) 237 CLR 146 at [55] per Gummow, Hayne, Heydon and Crennan JJ). It follows that knowingly acting in excess of statutory power and thus in bad faith constitutes jurisdictional error.
168 There is, of course, a distinction between an error going to jurisdiction and an error made by a decision-maker within jurisdiction. As to that distinction see the well-known passages in Craig v South Australia (1995) 184 CLR 163 at pp 176-178. As to excess of authority see the equally well-known passage in Craig at p 179; Public Service Association (SA) v Federated Clerks’ Union (1991) 173 CLR 132 at pp 141, 149 and 165; Minister for Immigration and Multicultural Affairs v Yusuf (2001) CLR 323. See also AALA per Hayne J at [160] and [163]. As to the distinction between jurisdictional error and error in the exercise of jurisdiction, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at 571 [66] adopting the observations of Hayne J in AALA at [163].
169 Where certiorari is sought in the ancillary sense earlier discussed, to mandamus or prohibition, its reach will also be limited by notions of quashing jurisdictional error. No question of a constitutional writ of certiorari arises in this application by reference to s 75(iii) or s 76(i) of the Constitution.
170 Although principles of jurisdictional error control the constitutional writs, those principles do not attend the remedy of injunction including an injunction under s 75(v) of the Constitution and s 39B of the Judiciary Act. The same proposition is true for the remedy of a declaration. The equitable remedies which are available at the suit of a party with a sufficient interest, operate to declare invalidity and to restrain the implementation of invalid exercises of power: Commissioner of Taxation v Futuris Corporation at [47]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 157-158 [57] and [58]; Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at 393 [100].
171 The applicant did not, either by his application or written or oral submissions, explain the basis upon which the conduct of the Medical Board or its officers involved jurisdictional error, subject to this observation. Throughout the course of the application document and in oral and written submissions, Mr Broadbent asserts wilful and knowing bad faith on the part of the Medical Board. That allegation is made very extensively throughout the application document which traverses 53 pages of factual allegations referable to the topics ultimately addressed by the Queensland Court of Appeal. The contentions of bad faith do not rise above bald allegations and the factual foundation for them is inconsistent with the findings of QCAT and the disposition of the challenges to those findings by the Court of Appeal.
172 To adopt the words of Chesterman JA at [66] in his Honour’s reasons of the Court of Appeal, the majority of the contentions at best amount to generalised assertions that the Medical Board should have accepted in its entirety the applicant’s opinions and accounts of the facts surrounding the deaths of Mrs MacLeod and Mrs Pearce, and its failure to do so during the investigation and disciplinary proceedings can only be explained by bad faith and as a matter of fraud on the part of the Medical Board. The applicant, in these proceedings, does not make any attempt in any deliberative manner or disciplined matter to indentify an act or omission of the Medical Board or its officers and then demonstrate the basis upon which precise conduct is said to constitute a jurisdictional error in the exercise of a power conferred upon the Medical Board (leaving aside for the moment the question of whether that power engages a federal element).
173 Of course, for the purpose of establishing jurisdiction under s 39B(1), it is not necessary to establish a prima facie case that a jurisdictional error was made: CFMEU v Australia Industrial Relations Commission (2007) 157 FCR 260 at [43] per Spender, French and Cowdroy JJ. It is sufficient to attract jurisdiction to properly allege that a jurisdictional error was made by a person shown to be an officer of the Commonwealth. At the threshold however, it is necessary to demonstrate the content of the contended jurisdictional error rather than simply assert generalised allegations
PART X - The ADJR Act AND SECTION 39B(1A)(c) OF THE JUDICIARY ACT
The ADJR Act
174 The applicant also asserts a right to relief under the Administrative Decision (Judicial Review) Act 1977 (Cth) (the “ADJR Act”).
175 Section 5 confers jurisdiction on the Federal Court to entertain an application from a person who is aggrieved by “a decision to which this Act applies” where an applicant seeks review of the decision on one of the specified grounds. Section 6 confers jurisdiction in applications to review conduct engaged in for the purpose of making a “decision to which this Act applies”.
176 A “decision to which his Act applies” is defined by s 3(1) as:
… a decision of an administrative character made, proposed to be made, or required to be made …:
(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or
(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;
other than:
(c) a decision by the Governor-General; or
(d) a decision included in any of the classes of decisions set out in Schedule 1.
177 Thus, the applicant must show that one of the many complained of actions asserted against the Medical Board concerned a decision of an administrative character made under an enactment (as s 3(1)(b) has no application).
178 Enactment for the purpose of the ADJR Act is means:
(a) an Act, other than:
(i) the Commonwealth Places (Application of Laws) Act 1970; or
(ii) the Northern Territory (Self-Government) Act 1978; or
(iii) an Act or part of an Act that is not an enactment because of section 3A (certain legislation relating to the ACT);
or
(b) an Ordinance of a Territory other than the Australian Capital Territory or the Northern Territory; or
(c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section 3A; or
(ca) an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; or
(cb) an instrument (including rules, regulations or by-laws) made under an Act or part of an Act covered by paragraph (ca); or
(d) any other law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act;
and, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a part of an enactment.
179 ‘Act’ in subparagraph (a) refers to an Act of the Commonwealth Parliament: see Acts Interpretation Act 1901 (Cth), s 38.
180 The applicant has failed to indentify either an enactment under which a relevant decision was made or omitted to be made or a decision to which the ADJR Act applies in respect of the conduct outlined in the application.
181 The applicant makes no attempt to address these issues. The applicant’s submissions simply recite the grounds of review contained in ss 5 and 6 without explaining the basis upon which the ADJR Act applies to the conduct under challenge. All of the decisions made by the Medical Board (and by the HPT and later QCAT) in relation to the disciplinary proceedings were made pursuant to legislation of the Queensland Parliament. None of the relevant Acts fall within Schedule 3 to the ADJR Act. If Mr Broadbent is also suggesting that the ADJR Act is engaged because the Medical Board made a decision under s 37 of the Mutual Recognition Act to disseminate information to medical boards in other States or engaged in conduct for the purpose of making such a decision, the application does not recite such a contention and nor does he identify a properly formulated ground of challenge under the ADJR Act to such a decision or conduct relevantly related to such a decision.
182 No ground of jurisdiction is made out under the ADJR Act.
Section 39B(1A)(c) of the Judiciary Act
183 In his application document, Mr Broadbent challenges the conduct or decisions of the Medical Board “prior to and during the hearing of the allegations and charges that the Applicant engaged in acts of professional misconduct”. A consideration of the very many paragraphs of the application reveals that Mr Broadbent takes issue with the formulation of the proceedings taken against him, the manner of the conduct of those proceedings, the content of the allegations made against him, the evidence advanced against him, the general investigation of his patient management of Mrs MacLeod and Mrs Pearce, the use of expert evidence and the general prosecution of the proceedings before the HPT and QCAT.
184 None of these steps or actions on the part of the Medical Board are matters arising under the laws of the Commonwealth Parliament. They are all matters that find the source of their authority in legislation of the Queensland Parliament.
185 Section 39B(1A)(c) is in the following terms:
(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
…
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
186 The principles informing the scope and operation of s 39(1A)(c) are well known. A summary of those principles is usefully set out by Finn J in Motor Trades Association of Australia Superannuation Fund Pty Limited v Australian Prudential Regulation Authority [2008] 169 FCR 483 at [32] to [40].
187 At [51] of his “Submissions”, Mr Broadbent says this:
Subsection (1)(A) of the Judiciary Act 1903 (Cth) currently provides for the Federal Court jurisdiction in matters involving the Constitution, but also arising from any laws made by Parliament. This provision is so wide that its effect is to enable Judicial Review applications to be brought in the Federal Court, provided that at least part of the matter arises under a Commonwealth Statute. It is submitted that the Registration of a Medical Practitioner and any disciplinary or other activity that might affect or give rise to a threat or sanction against a Registrant cut across all of the overarching Commonwealth legislation referred to above.
188 By “overarching Commonwealth legislation”, Mr Broadbent is presumably referring to the Mutual Recognition Act, the Trans-Tasman Mutual Recognition Act, Medicare Australia Act, Health Insurance Act, Financial Management and Accountability Act and the Public Service Act as discussed above.
189 Mr Broadbent’s application does not identify any matter arising under any of those Commonwealth Acts in relation to the conduct complained of on the part of the Medical Board.
PART XI - The Applicant’s contended other grounds of jurisdiction
The Trade Practices Act
190 The applicant, by his submissions, asserts that jurisdiction arises under the Trade Practices Act in the sense that the Medical Board has engaged in misleading and deceptive or unconscionable conduct (see “Brief Submissions” at [41] and “Submissions” at [82]-[83]). However, the Trade Practices Act has no relevant application as the conduct alleged against the Medical Board did not occur in “trade or commerce”.
Section 32(1) of the Federal Court of Australia Act
191 Section 32 of the Federal Court of Australia Act relevantly provides:
32 Jurisdiction in associated matters
Associated matters—civil proceedings
(1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters (the core matters) in which the jurisdiction of the Court is invoked.
(2) The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter (the core matter) in respect of which an appeal from that judgment, or another judgment of that court, is brought.
192 Jurisdiction conferred by s 32 goes no further than matters arsing under laws of the Commonwealth in respect of which jurisdiction has not otherwise been conferred: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 494, 516, 534-536 and 547 and Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 618-619. Since the primary claims recited in the application are not within jurisdiction, there is no room for the operation of s 32 as a conferral of jurisdiction.
Jurisdiction of Courts (Cross Vesting Act) 1987
193 The applicant submits that Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth) provides the Federal Court with jurisdiction in the circumstances (see brief submissions at [47] and submissions at [90]). However, following Re Wakim; Ex parte McNally (1999) 198 CLR 511 no provision of the Cross Vesting Act confers jurisdiction on the Federal Court to hear State judicial review matters (see Aronson et al Judicial Review of Administrative Action at pp 52-53). The Cross Vesting Act provides no alternative ground of jurisdiction in the Federal Court in respect of those matters not already within jurisdiction.
Accrued Jurisdiction
194 The applicant submits that “the doctrine of ‘accrued federal jurisdiction’ … may also apply to the matters under consideration” (see both Brief Submissions at [43] and Submissions at [86]).
195 Since the application does not invoke a ground of federal jurisdiction, there can be no accrued jurisdiction: Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553 and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [87].
PART XII - No Reasonable Prospect of Success: SECTION 31A(2) of the Federal Court of Australia Act 1976
196 The respondent seeks an order that judgment be entered in its favour pursuant to s 31A(2) of the Federal Court of Australia Act 1976.
197 Section 31A(2), (3) and (4) provide:
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail; for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Court has apart from this section.
198 The principles governing the application of s 31A are set out in Spencer v Commonwealth of Australia (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ in these terms at [50] to [53] and [56] to [60]:
[50] … Two aspects of these provisions are to be noted.
[51] First, the central idea about which the provisions pivot is "no reasonable prospect" (emphasis added). The choice of the word "reasonable" is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of "no real prospect"; s 31A speaks of "no reasonable prospect". The two phrases convey very different meanings.
[52] Secondly, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". It will be necessary to examine further the notion of "no reasonable prospect". But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
[53] In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner for Railways (NSW).
…
[56] Because s 31A(3) provides that certainty of failure ("hopeless" or "bound to fail") need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression "no reasonable prospect of successfully prosecuting the proceeding" by reference to what is said in those earlier cases.
[57] Likewise, it is dangerous to apply directly what has been said in the United Kingdom about the application of a test of "no real prospect" or what has been said in United States decisions about summary judgment. The United Kingdom cases are directed to a different test…
[58] How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
199 Since Mr Broadbent’s application does not identify any ground of jurisdiction in the Federal Court of Australia in respect of the matters which are sought to be the subject of review before this Court, the applicant has no prospect of success and not simply, no reasonable prospect of success.
Abuse of Process
200 The respondent seeks an order, in the alternative, that the application be dismissed pursuant to Order 20 r 5 of the Federal Court Rules and by virtue of the Federal Court’s power to dismiss applications that are an abuse of the Court’s process.
201 The application is said to be an abuse of process because Mr Broadbent seeks to re-litigate or re-agitate matters that have been addressed before QCAT, the Supreme Court of Queensland and the Court of Appeal of the Supreme Court of Queensland. The application is also said to constitute a collateral attack on QCAT’s decision and the decision of the Court of Appeal dismissing Mr Broadbent’s application for leave to appeal from the decision QCAT.
202 In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, French CJ said this at [33]:
[33] In any event the institution by ANU of fresh proceedings, raising claims which could have been raised against Aon much earlier in the existing proceedings, would face the potential barrier of an abuse of process objection and, possibly, that kind of estoppel discussed in Henderson v Henderson and by this Court in Port of Melbourne Authority v Anshun Pty Ltd. Abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined. Reichel v Magrath is a long standing example of a re-litigation case decided on abuse of process grounds, rather than on the basis of res judicata or issue estoppel. It was relied upon in Walton v Gardiner and Rogers v The Queen. In the former case, Mason CJ, Deane and Dawson JJ said that: "proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings." (Footnotes omitted).
203 At [34], French CJ adopts the following statement of Lord Bingham of Cornhill in Johnson v Gore Wood & Co [2002] 2 AC 1:
The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.
204 The majority in Aon did not find it necessary to consider the issue of abuse of process as a result of their findings on the other issues in the appeal: see [115].
205 The observations French CJ are consistent with a number of authorities on the issue: see Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279; Walton v Gardiner (1993) 177 CLR 378 at 393-394; Wilson v Commonwealth [1999] FCA 1308 at [11] and [12]; Coffey v Secretary, Department of Social Security (1999) 86 FCR 434. In State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81-423, Giles CJ observed that “[t]he guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of the administration of justice”: at 64,089.
206 The detailed review undertaken in these reasons of the history of the proceedings concerning Mr Broadbent demonstrates that virtually all of the factual issues raised in the application filed in this Court have been raised previously by the applicant in another forum. Moreover, the applicant has been provided with many opportunities to raise any matter he might wish to have raised arising out of the proceedings taken against him by the Medical Board before the HPT and ultimately QCAT. This is particularly so given that it appears on all previous occasions the applicant had the benefit of legal representation on his behalf.
207 Further, Mr Broadbent raised the issue of the culpability of the other professionals during the hearing before QCAT (see p 235-6 of Mrs Houston’s affidavit filed 9 February 2011). This is an issue raised on a number occasions in the application (see pp 3, 31 and 48-49; Transcript at p 23 lns 8-11). The issue of Mrs MacLeod and the factual issue in relation to diarrhoea is raised throughout the application. However, QCAT rejected the Medical Board’s contentions in relation to that matter it (see Medical Board of Queensland v Broadbent [2010] QCAT 280 at [22]-[56] concerning the Tribunal’s lengthy consideration of the issue). The applicant raised the matter before the Court of Appeal (Broadbent v Medical Board of Queensland [2010] QCA 352 at [68] to [73]). The application also raises issues concerning the allegations of malnutrition and protein intake which were also raised and dealt with before both QCAT (Medical Board of Queensland v Broadbent [2010] QCAT 280 at [57]-[97]) and the Court of Appeal (Broadbent v Medical Board of Queensland [2010] QCA 352 at [68] to [73]).
208 Before the HPT, the applicant applied unsuccessfully to have the disciplinary proceedings stayed permanently on the basis that the commencement and prosecution of those proceedings constituted an abuse of process.
209 The applicant has already unsuccessfully attempted to review before the Supreme Court of Queensland the Medical Board’s conduct preliminary to a threatened decision to impose conditions upon his registration as a medical practitioner. That application was dismissed on the footing that it was premature as the Medical Board had not made a decision under the HPPS Act at that time to impose conditions upon Mr Broadbent’s registration.
210 The only point of distinction between the previous proceedings and the conduct now sought to be reviewed is the notion that the conduct of the Medical Board can only be explained as an expression of “bad faith and fraud”. The respondent contends that Mr Broadbent has had an opportunity to agitate this question previously and could have raised these matters in his application for leave to appeal to the Court of Appeal. Mr Broadbent did not seek to agitate that matter at that time in any way that may have then been available to him.
211 Further, on the face of the application filed in this Court, the application amounts to little more than a contention that Mr Broadbent’s version of the facts ought to have been accepted by the Medical Board and the Board ought not to have taken proceedings against him in relation to his treatment and care of Mrs MacLeod and Mrs Pearce.
212 Mr Broadbent’s application amounts to collateral attack on the decisions of QCAT and the Court of Appeal because, whilst the applicant abandoned at the hearing his application to review the decision of QCAT, he seeks to quash the “decisions” (conduct) of the Medical Board in instigating proceedings before QCAT and he seeks to have the matter of the prosecution taken against him remitted to QCAT for further consideration or alternatively remitted to the Supreme Court of Queensland. In International Finance Trust Co Ltd and Another v New South Wales Crime Commission and Others (2009) 240 CLR 319, Hayne J at [147] adopted the following observation of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1981] 3 All ER 727 at 733:
The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
213 Since the application does not identify a ground of jurisdiction in the Federal Court and the application seeks to re-agitate and call into question matters determined before QCAT and the Court of Appeal, the application ought to be dismissed. However, because there is no reasonable prospect of the applicant successfully prosecuting the application, the appropriate order is to enter judgment for the respondent in the proceeding.
PART XIII - Costs
214 The respondent seeks an order that the costs of and incidental to the notice of motion be paid by the applicant on an indemnity basis.
215 An order for costs on an indemnity basis will generally only be made if the proceeding exhibits “some special or unusual feature” (Re Wilcox (No 2) (1996) 72 FCR 151 at 152 per Black CJ, see also at 156 per Cooper and Merkel JJ) or “special circumstances” (Australian Electoral Commission v Towney (No 2) (1994) 54 FCR 383 at 388 per Foster J). The conduct of the applicant in the circumstances touches upon a number of the examples gathered together in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 by Sheppard J as examples of circumstances justifying an award of costs on an indemnity basis.
216 The aspects of the applicant’s conduct which warrant an award of costs on an indemnity basis are these.
217 First, the applicant has failed to demonstrate any arguable ground of jurisdiction before this Court. The application, plainly enough, was intended to be filed in the Supreme Court of Queensland and not the Federal Court of Australia. The Deputy Registrar of the Supreme Court, as an administrative decision, refused to accept Mr Broadbent’s application for filing on the footing that he had been refused leave to appeal from QCAT’s decision by the Queensland Court of Appeal. Mr Broadbent’s application which purports to raise judiciable matters before that Court (on a footing other than an application for leave to appeal QCAT’s decision), was addressed administratively rather than as an exercise of judicial power. Second, the application before this Court recites many allegations of fraud and bad faith on the part of the Medical Board which are not supported by any evidence before this Court. Third, the applicant refused to withdraw his application when he was alerted to the jurisdiction issues by the respondent. The applicant did not respond to the correspondence described earlier in these reasons from the solicitors for the respondent. The applicant was not able to identify an arguable ground of jurisdiction in this Court and put the respondent to cost and expense in addressing the inadequacy of the jurisdictional foundation for the application. Fourth, the proceedings commenced in this Court are an abuse of process and an exercise in forum shopping as the application simply seeks to re-agitate matters addressed before QCAT and the Queensland Court of Appeal. The application fails to identify either arguably or at all a ground upon which federal jurisdiction might be attracted in respect of the matters sought to be reviewed and the application fails to properly identify a ground of review. In that sense, the application is entirely devoid of any foundation. Fifth, the application before this Court seeks to undermine the undertaking previously given by Mr Broadbent to QCAT.
218 It follows, for all these reasons, that judgment will be entered for the respondent against the applicant in relation to the whole of the proceeding pursuant to s 31A(2) of the Federal Court of Australia Act 1976 together with an order that the applicant pay the respondent’s costs on an indemnity basis.
I certify that the preceding two-hundred and eighteen (218) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. |
Associate:
