FEDERAL COURT OF AUSTRALIA

Broadbent v Medical Board of Australia [2015] FCA 717

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Order 1 of the orders made by the Federal Circuit Court of Australia on 29 May 2014 is set aside.

3.    Bankruptcy Notice 169248 issued on 7 February 2014 is set aside.

4.    The parties are to bear their own costs of the appeal, save that the appellant is to pay the respondent’s costs of preparing and filing the respondent’s further outline of submissions filed on 2 February 2015 and the respondent’s costs of the hearing on 6 February 2015.

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

REASONS FOR JUDGMENT

1    This is an appeal against a judgment of the Federal Circuit Court of Australia dismissing the appellant’s application to set aside a bankruptcy notice.

2    The appellant’s case changed significantly in the course of the appeal, so that it now bears only some resemblance to the grounds set out in the notice of appeal and to the arguments made to the Federal Circuit Court. Accordingly, it is necessary to consider whether the appellant should be granted leave to raise these new arguments in the appeal.

3    The history of the litigation leading to the bankruptcy notice, the history of the relevant legislation and the procedural history of the appeal has some complexity. It is necessary to discuss that history in some detail before I consider the question of leave and the merits of the appeal.

Procedural history of the disciplinary proceedings and related proceedings

4    The bankruptcy notice relies upon an order made by a Deputy Registrar of the District Court of Queensland that the appellant pay the Medical Board of Australia the sum of $387,862.17. The District Court’s order was founded upon a decision of the Queensland Civil and Administrative Tribunal (“QCAT”) that the appellant pay 70% of the Medical Board of Queensland’s costs, such costs to be assessed on the standard basis unless agreed.

5    The appellant practiced medicine as a surgeon before disciplinary proceedings were taken against him. Although he was variously the applicant, respondent or appellant in the legal proceedings I will describe, I will refer to him throughout these reasons as “the appellant” for the sake of consistency.

6    In 2007 and 2008, the Medical Board of Queensland started several disciplinary proceedings against the appellant before the Health Practitioners Tribunal pursuant to ss 125 and 126 of the Health Practitioners (Professional Standards) Act 1999 (Qld) (“the Professional Standards Act”). The Medical Board of Queensland alleged that Mr Broadbent had behaved in a way that constituted unsatisfactory professional conduct within s 124(1)(a) of the Professional Standards Act in relation to 13 patients in total.

7    The allegations were principally concerned with the appellant’s treatment of his patients after he had performed major surgery to treat them for morbid obesity. The surgery involved reducing the size of the stomach, thereby limiting the quantity and consistency of food that could be tolerated.

8    On 7 September 2009, the Health Practitioners Tribunal commenced a hearing concerning the appellant’s treatment of two of his patients, Mrs Ursula MacLeod and Mrs Margaret Pearce. On that day the Health Practitioners Tribunal dismissed an application for a permanent stay of the proceedings.

9    On 1 December 2009, the Health Practitioners Tribunal was abolished and its jurisdiction was transferred to QCAT pursuant to ss 247 and 255–257 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”). The hearing recommenced before QCAT on 24 February 2010.

10    On 10 June 2010, QCAT delivered its decision in respect of the disciplinary proceedings concerning the treatment of Mrs MacLeod and Mrs Pearce: Medical Board of Queensland v Broadbent [2010] QCAT 280. QCAT found that the appellant had behaved in a way that constituted unsatisfactory professional conduct. QCAT decided that his conduct was of a lower standard than might reasonably be expected of him by the public and his professional peers; and that he had demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of his profession.

11    On 1 July 2010, a new uniform legislative scheme for the accreditation, registration and discipline of certain types of health practitioners in Australia, including medical practitioners, commenced. The operation of the transitional provisions in the Queensland legislation forming part of that scheme is central to the disposition of this appeal.

12    On 7 July 2010, the appellant filed an application for leave to appeal to the Queensland Court of Appeal pursuant to s 149 of the QCAT Act. On 10 December 2010, the Court of Appeal refused the application for leave to appeal and ordered that the appellant pay the Medical Board of Queensland’s costs of the application: Broadbent v Medical Board of Queensland [2010] QCA 352.

13    On 2 September 2010, QCAT conducted a hearing in relation to penalty and costs. The parties were legally represented and there was a contest as to costs. QCAT decided that the matter of penalty could satisfactorily be resolved by requiring the appellant to give an undertaking pursuant to s 241(2) of the Professional Standards Act to the effect that he would retire permanently from medical practice and would never reapply for registration as a medical practitioner.

14    On 22 October 2010, QCAT issued the following decision (although it bears the date 2 September 2010):

15    Although the heading describes the present appellant as “Respondent” rather than “Registrant”, it is not in dispute that he is the “Registrant” described in the decision. It is clear that the “Applicant” is the Medical Board of Queensland.

16    The proceedings with respect to the remaining 11 patients were withdrawn and, on 22 March 2012, QCAT ordered that the parties bear their own costs of those proceedings.

17    On 4 January 2011, Mr Broadbent attempted to file an application in the Supreme Court of Queensland seeking judicial review of the decisions of QCAT and the conduct of the Medical Board of Queensland in respect of the disciplinary proceedings. The Supreme Court registry declined to accept the application for filing. Mr Broadbent then filed an almost identical application in the Federal Court of Australia. That application was dismissed by Greenwood J with costs on 25 August 2011: Broadbent v Medical Board of Queensland (2011) 195 FCR 438.

18    On 4 February 2013, Mr Broadbent commenced proceedings in the Supreme Court of Queensland seeking damages of $20 million against medical practitioners who were either called as witnesses to give evidence during the disciplinary proceedings or otherwise assisted the Medical Board of Queensland with its investigation and prosecution of Mr Broadbent. On 9 May 2013, the statement of claim was struck out as against those medical practitioners with the appellant’s consent.

19    On 8 April 2013, Mr Broadbent commenced proceedings against “Queensland Government (Queensland Medical Board)” in the Supreme Court of Queensland. Mr Broadbent has indicated that he will seek to amend the name of the defendant to “The Australian Health Practitioner Regulation Agency”.

The legislative history

20    The Medical Board of Queensland was established as a body corporate pursuant to s 9 of the Medical Practitioners Registration Act 2001 (Qld). That Act was repealed by s 123 of the Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 (Qld) on 1 July 2010.

21    The “Health Practitioner National Law” (“the National Law (Qld)”) also commenced on 1 July 2010. The National Law (Qld) was contained in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and came into force as part of the law of Queensland pursuant to s 4 of that Act. Section 31 of the National Law (Qld) established the Medical Board of Australia as a body corporate from that date. The functions of the Medical Board of Australia include, under s 289(1), dealing with a complaint or notification started but not yet completed by the Medical Board of Queensland.

22    Section 23 of the National Law (Qld) established the Australian Health Practitioner Regulation Agency (“the National Agency”) as a body corporate. Section 295(1) has the effect that the assets and liabilities of the Medical Board of Queensland are, from 1 July 2010, taken to be assets and liabilities of the National Agency.

23    I will discuss the legislation in more detail later in these reasons.

The procedural history of the costs orders

24    As I have indicated, by 1 July 2010 QCAT had made findings that Mr Broadbent had behaved in a way that constituted unsatisfactory professional conduct, but had not yet made any decision as to penalty or costs. It made its decision awarding costs in favour of the Medical Board of Queensland after that date.

25    It was common ground between the parties that QCAT acquired the power to make its costs decision under s 255 of the Professional Standards Act. Section 255 provided relevantly:

(1)    The tribunal may make any order about costs it considers appropriate for disciplinary proceedings.

(2)    However, the costs allowable are only—

(a)    the costs that would be allowable if the disciplinary proceedings were proceedings in the District Court; and

(b)    if the board conducted an investigation of the registrant before referring the matter for hearing by the tribunal—the cost to the board of conducting the investigation.

…

(4)     If an order is made about costs—

(a)    the order may be filed in the registry of a District Court; and

(b)    on being filed, is taken to be an order made by a District Court and may be enforced accordingly.

26    Section 255(4) allows an order made by QCAT about costs to be filed in a registry of the District Court. There is no direct evidence that QCAT’s costs decision was filed but I infer that it must have then been filed for reasons I will discuss later. An application must have been made for the assessment of costs, although that application is not in the evidence before this Court. The following order was made by a Deputy Registrar on 20 February 2013:

27    I infer that the application for the assessment of costs must have named the applicant as “Medical Board of Australia” and that the Deputy Registrar adopted that name as the name of the applicant when making the order.

28    The costs assessor appointed under the order, Mr Bloom, issued the following certificate on 9 April 2013:

29    A Deputy Registrar then made the following order on 14 January 2014:

30    The Medical Board of Australia obtained the issuing of a bankruptcy notice in respect of the appellant. The bankruptcy notice claimed a debt of $247,862.17. That amount consisted of the $387,862.17 ordered by the District Court, less $140,000 that had been paid by Mr Broadbent’s insurer.

31    The bankruptcy notice attached the order of the District Court of 14 January 2014. It did not attach QCAT’s decision of 22 October 2010. It may be noted that there is an apparent discrepancy between QCAT’s decision that the appellant pay the assessed costs of the Medical Board of Queensland and the District Court’s order that the appellant pay those costs as assessed to the Medical Board of Australia.

The proceedings before the Federal Circuit Court

32    On 5 March 2014, Mr Broadbent filed an application in the Federal Circuit Court seeking an order that the bankruptcy notice be set aside. The hearing took place on 29 April 2014 and 23 May 2014 and judgment was given on 29 May 2014.

33    The primary judge noted that one of the grounds relied on by Mr Broadbent was that the Medical Board of Australia had no entitlement to request the issue of the bankruptcy notice because it is not a creditor. Mr Broadbent’s argument was that the National Agency is the creditor because, by reason of s 289 of the National Law (Qld), the proceedings should have been continued after 1 July 2010 in the name of the National Agency rather than the Medical Board of Queensland and because, by reason of s 295, the assets and liabilities of the Medical Board of Queensland became the assets and liabilities of the National Agency.

34    The primary judge held that s 295(1)(c) of the National Law (Qld) contemplates that if an award of costs in favour of the Medical Board of Queensland is made “that sum might be payable into an account kept by the ‘Agency Fund’, but it would be payable into an account administered for the Medical Board of Queensland, and not for [the National Agency] itself.” Although his Honour referred to the “Medical Board of Queensland”, his Honour must have intended to refer to the Medical Board of Australia. His Honour considered that the Medical Board of Australia, not the National Agency, had title to the money.

35    His Honour also referred to s 40(3)(d) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) which provides that a person who is for the time being entitled to enforce a final judgment or final order for the payment of monies shall be deemed to be a creditor. His Honour held that the Medical Board of Australia had a judgment in its favour from the District Court. Mr Broadbent had not raised any question of the jurisdiction of the District Court to make that order, and it was not asserted that there was any basis to go behind the judgment. His Honour held that the Medical Board of Australia was entitled to enforce the order and was deemed to be the creditor.

36    His Honour then dealt with a number of other grounds, rejecting each of them. It is unnecessary to discuss those grounds.

The appeal

37    The appellant’s notice of appeal raises seven grounds of appeal. Only the first two were the subject of oral argument. Those grounds allege that the primary judge erred:

a.    by finding that the Medical Board of Australia was a creditor of the applicant, and entitled to issue a bankruptcy notice, the costs order, (assessed in the sum of $387,862.17), and the entitlement thereto, being made in favour of the Medical Board of Queensland;

b.    by not finding that the incorrect creditor, namely the Medical Board of Australia, was identified in the bankruptcy notice;

38    The first of those grounds is more readily understandable if read as though there were a semi-colon after the words “bankruptcy notice”.

39    The appellant’s counsel indicated that they had sought, but had not received, instructions to abandon the five remaining grounds. Counsel indicated that there were no submissions which they felt they could properly make in support of these grounds. In view of this concession, and having regard to the cogency of the respondent’s submissions, I reject those grounds.

40    In the appellant’s written submissions, the first two grounds were advanced on the same basis as they were before the Federal Circuit Court. However, in the course of oral argument, the appellant’s case took on a quite different complexion, although there remains some area of overlap with the written submissions. The hearing was adjourned to allow the respondent an opportunity to consider and respond to the new submissions that had been made.

41    The appellant’s submissions evolved and changed in the course of oral argument and, as I understand them, were ultimately as follows:

(a)    As the Medical Board of Australia was not a party to the disciplinary proceedings, QCAT’s decision was not, and could not be, that the appellant pay the costs of the Medical Board of Australia.

(b)    Nothing in the legislative scheme operated to transform the appellant’s liability to the Medical Board of Queensland under QCAT’s order into a liability to the Medical Board of Australia.

(c)    The Deputy Registrar of the District Court had no power to make any order in favour of the Medical Board of Australia.

(d)    The costs order made by the District Court should have been in favour of the Medical Board of Queensland.

(e)    This Court should go behind the order of the District Court and find that in truth and reality the appellant owes no debt to the Medical Board of Australia.

42    The respondent argues that the appellant raises new grounds that were not taken before the primary judge. The appellant argues that there are no new grounds as he argued in the Federal Circuit Court that the Medical Board of Australia is not the creditor, and leave is not required.

43    There is some overlap between these submissions made to this Court and the submissions made to the Federal Circuit Court. However, it was not argued at first instance that the Federal Circuit Court should go behind the order of the District Court. I consider that the appellant is raising a ground not relied on before the primary judge and that leave is required to do so.

44    One of the matters relevant to the question of whether such leave should be granted is the merits of the new ground. I will examine the merits of the ground before I consider whether leave should be granted.

The Bankruptcy Act

45    Section 40 of the Bankruptcy Act provides, relevantly:

(1)    A debtor commits an act of bankruptcy in each of the following cases:

…

(g)    if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia…a bankruptcy notice under this Act and the debtor does not:

(i)    where the notice was served in Australia – within the time specified in the notice;

…

comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be…

…

(3)    For the purposes of paragraph (1)(g):

…

(d)    a person who is for the time being entitled to enforce a final judgment or final order for the payment of money shall be deemed to be a creditor who has obtained a final judgment or final order;

46    Section 41 provides, relevantly:

(1)    An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor:

(a)    a final judgment or final order that:

(i)    is of the kind described in paragraph 40(1)(g); and

(ii)    is for an amount of at least $5,000;

47    The Bankruptcy Act does not expressly give the Court the power to set aside a bankruptcy notice, but such a power is necessarily to be inferred and is within the general powers of the Court conferred by s 30(1) of the Bankruptcy Act: Bryant v Commonwealth Bank of Australia (1994) 217 ALR 251 at 253, per Davies, Foster and O’Loughlin JJ.

48    A judgment or order upon which a bankruptcy notice is based is not conclusive of the existence of a debt. The power of the Court to go behind a judgment is not confined to an application for a sequestration order, but may be exercised on an application to set aside a bankruptcy notice: Olivieri v Stafford (1989) 24 FCR 413 at 430–431 per Gummow J, Xu v Wan Ze Property Development (Aust) Pty Ltd (in liq) (2014) 315 ALR 523 at 533 [55] per Robertson J, Khouzame v All Seasons Air Pty Ltd [2014] FCA 1319 at [14] per Flick J.

49    In Wren v Mahony (1972) 126 CLR 212, Barwick CJ (with whom Windeyer and Owen JJ agreed) referring to the judgment of Lord Esher in Re Flatau; Ex parte Scotch Whisky Distillers Ltd (1888) 22 Q.B.D. 83 said at 224–225:

His Lordship…was pointing out that the Bankruptcy Court could in general accept a judgment debt as sufficient proof of that debt particularly where it resulted from a fully heard contest between parties but that it always had the power to go behind the judgment and if the case was a proper one, should do so. The judgment is never conclusive in bankruptcy. It does not always represent itself as the relevant debt of the petitioning creditor, even though under the general law, the prior existing debt has merged in a judgment. But the Bankruptcy Court may accept the judgment as satisfactory proof of the petitioning creditor’s debt. In that sense that court has a discretion. It may or may not so accept the judgment. But it has been made quite clear by the decisions of the past that where reason is shown for questioning whether behind the judgment or as it is said, as the consideration for it, there was in truth and reality a debt due to the petitioning creditor, the Court of Bankruptcy can no longer accept the judgment as such satisfactory proof. It must then exercise its power, or if you will, its discretion to look at what is behind the judgment: to what is its consideration. It is not the law, in my opinion, that whether in any case the Court of Bankruptcy will consider whether there is satisfactory proof of the petitioning creditor’s debt is a mere matter of its own discretion. Nothing in Corney v. Brien (1951) 84 C.L.R. 343 lends support for such a view. Rather the emphasis is upon the paramount need to have satisfactory proof of the petitioning creditor’s debt. The Court’s discretion in my opinion is a discretion to accept the judgment as satisfactory proof of that debt. That discretion is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner.

(Underlining added.)

Consideration

50    The arguments raised by the appellant condense to issue of whether the appellant in truth and reality owes any debt to the Medical Board of Australia. The question is whether the decision made by QCAT that the appellant pay the Medical Board of Queensland’s costs could properly have evolved into the order of the District Court that the appellant pay the assessed costs to the Medical Board of Australia. The answer must be found by examining the transitional provisions of the relevant legislation.

51    On 1 July 2010 the new national legislative scheme for the accreditation, registration and discipline for certain health professionals, including medical practitioners, commenced. In Broadbent v Medical Board of Queensland at 464 [108] – 472 [149], Greenwood J gives a detailed explanation of the development, implementation and operation of that scheme.

52    The Parliament of Queensland enacted two significant pieces of legislation as part of its adoption of the national scheme. As I have indicated, the Health Practitioner Regulation National Law Act applied the National Law (Qld) as a law of Queensland. The Health Legislation (Health Practitioner Regulation National Law) Amendment Act (“the Amendment Act”) made administrative and consequential amendments to various pieces of Queensland legislation, including the Professional Standards Act, to give effect to the national scheme. The Professional Standards Act has since been repealed, but that does not affect this appeal.

53    Both the National Law (Qld) and the Professional Standards Act as amended included transitional provisions dealing with disciplinary proceedings which had been commenced but not completed by 1 July 2010. The transitional provisions in the National Law (Qld) are expressed at some level of generality since they are part of a uniform national law, but the transitional provisions in the Professional Standards Act were more specific to Queensland’s circumstances. The interaction between the provisions gives rise to some difficulty in understanding and interpreting the transitional scheme operating in Queensland.

54    Pursuant to s 173 of the Professional Standards Act, the Medical Board of Queensland was a party to the disciplinary proceeding before QCAT. However, the statute under which the Medical Board of Queensland was established, the Medical Practitioners Registration Act, was repealed by s 123 of the Amendment Act on 1 July 2010. Ordinarily, that would suggest that the Medical Board of Queensland was abolished on that date. However, the transitional provisions have been held to have the effect of preserving the existence of the Medical Board of Queensland and retaining that Board as a party to the QCAT proceedings.

55    Section 289 of the National Law (Qld) provides, relevantly:

(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.

56    Section 405N of the Professional Standards Act provided, relevantly:

(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

…

complaint means—

(a)    a complaint under this Act as in force before the commencement; or

…

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.

57    As to s 289 of the National Law (Qld), ss 5 and 31 indicate that “National Board for the health profession” is the Medical Board of Australia. The Medical Board of Queensland is, by the application of s 250, a “local registration authority”. A “notification” includes a reference to QCAT and its predecessor, the Health Practitioners Tribunal.

58    The reference to “the Act of the participating jurisdiction under which [the notification] was made” in s 289(2)(b) is to the Professional Standards Act. Section 405N(2) of the Professional Standards Act requires that s 289(2)(b) must be read as if it says “is to be dealt with, as if [the Professional Standards Act] had not been repealed or amended”.

59    Therefore, the effect of s 289(2) of the National Law (Qld) is that where a proceeding was started before 1 July 2010, but QCAT had not completed dealing with the notification by that date:

    The notification is taken to be a notification under the National Law (Qld).

    The Medical Board of Australia is to deal with the notification.

    However, the notification is otherwise to continue to be dealt with under the Professional Standards Act as if it had not been amended by the Amendment Act.

60    Section 289(3) also refers to the Professional Standards Act as if it had not been amended. The Professional Standards Act allowed a “registrant’s board” to start and conduct disciplinary proceedings against its registrants. The expression “board” was defined, prior to the amendments, to include the Medical Board of Queensland. The effect of s 289(3)(a) is that the references in the Professional Standards Act to a “registrant’s board” are taken to include the Medical Board of Australia.

61    It is arguable that the Medical Board of Queensland ceased to exist from 1 July 2010 when the Medical Practitioners Registration Act was repealed and that the Medical Board of Australia was taken to replace the Medical Board of Queensland in uncompleted proceedings before QCAT: see, for example, the Explanatory Notes for cl 123 of the Health Legislation (Health Practitioner Regulation National Law) Amendment Bill 2010 (Qld) and s 405P and the definition of “former board” in the Professional Standards Act.

62    However, the Medical Board of Australia submits that the effect of s 289 of the National Law (Qld) and s 405N(3)(a) of the Professional Standards Act is that the Medical Board of Queensland remains in existence and that it continues to be a party to disciplinary proceedings and continues to deal with the complaint until all appeals are completed. The appellant initially submitted that the Medical Board of Queensland ceased to exist on 1 July 2010, but then resiled from that submission. The parties’ final positions are consistent with the judgment of Greenwood J in Broadbent v Medical Board of Queensland, where his Honour said at 469:

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.

…

143    The effect of Division 5 (and, in particular, s 405N) of the Part 13 “Transitional provisions” of the [Professional Standards] 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 [Professional Standards] 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 [Professional Standards] Act (and any proceedings or appeal relating to the notification may be so dealt with), as if the [Professional Standards] 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 [Professional Standards] Act prior to 1 July 2010 in respect of an existing, uncompleted complaint commenced under the [Professional Standards] 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 [Professional Standards] 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 [Professional Standards] 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.

63    The effect of these passages is that the Medical Board of Queensland continued in existence and remained a party to the QCAT proceeding after 1 July 2010. Neither party submitted that QCAT had no power to make its costs decision in favour of the Medical Board of Queensland. I will proceed on the basis that QCAT did have that power.

64    QCAT’s decision that the appellant pay part of the costs of the Medical Board of Queensland could only create a liability in the appellant to pay the assessed costs to the Medical Board of Australia if that was the consequence of a transitional provision in the National Law (Qld) or the Professional Standards Act or some other legislation.

65    Section 295 of the National Law (Qld) provides, relevantly:

(1)    From the transfer day for a participating jurisdiction—

(a)    the assets and liabilities of a local registration authority for a health profession in a participating jurisdiction are taken to be assets and liabilities of the National Agency and are to be paid into or out of the account kept in the Agency Fund for the National Board established for the profession; and

66    Section 208 of the National Law (Qld) provides for the establishment and administration of the Agency Fund:

(1)    The Australian Health Practitioner Regulation Agency Fund is established.

(2)    The Agency Fund is to have a separate account for each National Board.

(3)    The Agency Fund is a fund to be administered by the National Agency.

67    Section 209 of the National Law (Qld) provides, relevantly:

(1)    There is payable into the Agency Fund—

(a)    all money appropriated by the Parliament of any participating jurisdiction or the Commonwealth for the purposes of the Fund; and

(b)     all fees, costs and expenses paid or recovered under this Law; and

…

(g)    any other money or property received by the National Agency or a National Board in connection with the exercise of its functions.

(2)     Any money paid into the Agency Fund under subsection (1) for or on behalf of a National Board must be paid into the Board’s account kept within the Agency Fund.

68    QCAT made its decision that the appellant pay part of the costs of the Medical Board of Queensland on 22 October 2010, after the transfer day of 1 July 2010. It is not disputed that the liability of the appellant to pay those costs was an asset of the Medical Board of Queensland. Accordingly, the asset became an asset of the National Agency pursuant to s 295 of the National Law (Qld). Any costs recovered will have to be paid into the account for the Medical Board of Australia kept within the Agency Fund.

69    The appellant accepts that the District Court could validly have made orders that the Medical Board of Queensland’s costs be assessed and that the appellant pay the assessed costs to the Medical Board of Queensland. The appellant accepts that such costs if paid will become an asset of the National Agency and that either the National Agency or the Medical Board of Australia is entitled to enforce the order. However, the appellant argues that there was no basis for the District Court to order that he pay the assessed costs to the Medical Board of Australia.

70    I have inferred that QCAT’s costs decision must have been filed in the District Court. Under s 255(4) of the Professional Standards Act, that decision became an order of the District Court when it was filed. The bankruptcy notice did not rely upon that order. Instead, the bankruptcy notice was founded upon the order made by the Deputy Registrar on 14 January 2014 that the appellant pay the Medical Board of Australia’s costs assessed at $387,862.17.

71    As the Deputy Registrar did not provide reasons, it is unclear why the order was made in favour of the Medical Board of Australia when QCAT’s order had been made in favour of the Medical Board of Queensland.

72    The filing of QCAT’s decision in the District Court must have been the starting point leading to assessment of the costs. Rule 661(4) of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”) provides that unless an order is filed, the order may not be enforced under Chapter 19 or by any other process. QCAT’s costs decision could not have been assessed in accordance with the procedure under Chapter 17 of the UCPR unless QCAT’s order was filed.

73    Rule 705 of the UCPR provides, relevantly:

(1)     A party entitled to be paid costs must serve a costs statement in the approved form on the party liable to pay the costs.

74    There is evidence that the appellant was served with a costs statement. Then, on 20 February 2013, a Deputy Registrar made the order that the costs statement be assessed pursuant to r 708 of the UCPR and that Mr Bloom be appointed as Costs Assessor.

75    Rule 708 provides, relevantly:

(1)    This rule applies if—

(a)    a party served with a costs statement does not serve a notice of objection under rule 706; and

(b)    the party who served the costs statement files an application for a costs assessment under rule 710.

(2)    On the filing of the application, the registrar must appoint a costs assessor to assess costs under this rule.

(3)    The costs assessor must, on proof that the costs statement was served on the party liable for the costs—

(a)    assess the costs without considering each item and by allowing the costs claimed in the costs statement; and

(b)    issue a certificate of assessment.

76    The appellant did not serve a notice of objection pursuant to r 706. The application for the costs assessment under r 710 is not in the evidence before this Court. Rule 710 provides, relevantly:

(1)    This rule applies to a party—

(a)    who has served a costs statement under rule 705;

…

(1A)    The party may, not less than 21 days after service of the costs statement, apply for a costs assessment.

77    Rule 737 requires the Costs Assessor to certify the amount payable and by whom and to whom the amount is payable and to file the certificate in the Court. The certificate filed by Mr Bloom indicated that the costs were assessed at $387,862.17 and were payable by the appellant to the Medical Board of Australia.

78    Rule 742 allows a party dissatisfied with a decision included in a Costs Assessor’s certificate of assessment to apply to the Court to review the decision. No such application was made by the appellant.

79    Rule 740 provides, relevantly:

(1)    After a certificate of assessment is filed, the registrar of the court must make the appropriate order having regard to the certificate.

(2)    The order takes effect as a judgment of the court.

80    The Deputy Registrar made the order on 14 January 2014 that the appellant pay the Medical Board of Australia’s costs assessed at $387,862.17. That order took effect as a judgment of the District Court. That order founded the bankruptcy notice.

81    Rule 705(1) allows a “party entitled to be paid costs” to serve a costs statement on the party liable to pay the costs. Although QCAT made its order in favour of the Medical Board of Queensland, the costs statement must have been served on the appellant by the Medical Board of Australia. I draw that inference from the fact that the Deputy Registrar’s order of 20 February 2013 named the Medical Board of Australia as the applicant; and because that Board submitted that, pursuant to s 405N(3) of the Professional Standards Act, the functions of the Medical Board of Queensland were at an end by that time.

82    Rule 708(2) provides that “[o]n the filing of the application, the registrar must appoint a costs assessor to assess costs”. Rule 708 cannot be construed such that a party is entitled to an order appointing a costs assessor merely because it has served a costs statement. Rule 708 applies if, relevantly, “the party who served the costs statement files an application for a costs assessment under rule 710”. Rule 710 applies to a party who has served “a costs statement under rule 705”; while r 705 allows only a party entitled to be paid costs to serve a costs statement. I consider that the Registrar cannot make an order under r 708 or r 710 on the application of an entity which is not a “party entitled to be paid costs” within r 705.

83    The Costs Assessor certified that the costs were payable to the Medical Board of Australia. Rule 740(1) provides that after the certificate of assessment is filed, “the registrar of the court must make the appropriate order having regard to the certificate”. The parties concur that the Registrar is not bound to make an order in accordance with the certificate. Rather, the Registrar must make “the appropriate order”. It seems to me that the words of the provision were cast such that the Registrar would have some power to depart from the certificate of the Costs Assessor. Otherwise, the Registrar will be bound to make an order, which would take effect as a judgment of the Court, even where there is a patent error in the certificate. It is unlikely that the legislative intention is to effectively give judicial power to the Costs Assessor. It could not be “appropriate” to order that a person pay costs to a party which is not entitled to be paid those costs.

84    The question that arises is whether the Medical Board of Australia was a “party entitled to be paid costs” for the purposes of rr 705, 708, 710 and 740 of the UCPR.

85    The Medical Board of Australia was not a party to the QCAT proceeding and was not named as a party in QCAT’s decision that took effect as an order of the District Court when filed. QCAT’s decision did not, on its face, require the appellant to pay any costs incurred by the Medical Board of Australia.

86    The Medical Board of Australia submits that in accordance with s 289(2)(a) of the National Law (Qld), it was required to “deal with” any proceedings relating to the complaint once the the Medical Board of Queensland had “complete[d] dealing with the complaint” within the meaning of that expression in s 405N of the Professional Standards Act. The Medical Board of Queensland had completed dealing with the complaint when the Court of Appeal refused leave to appeal, or, at the latest, after the period for an appeal against the judgment of Greenwood J had ended. The Medical Board of Australia also relies on s 289(4) which requires it to give effect to a decision made on a proceeding completed under the National Law (Qld). It submits that the reference in s 255(2) of the Professional Standards Act to “the board” must be taken to be a reference to the Medical Board of Queensland. The Medical Board of Australia submits that these provisions entitled it to seek assessment of the costs awarded in favour of the Medical Board of Queensland. It then submits that “the costs assessed were taken to be the costs of the MBA, which was appropriate”.

87    There is a gap in this reasoning. While it may be accepted that it was part of the functions of the Medical Board of Australia to seek assessment of the costs in the District Court, that does not explain why it is “[a] party entitled to be paid costs” for the purposes of rr 705, 708, 710 and 740 of the UCPR. The appellant accepts that the Medical Board of Queensland was entitled to an order that it be paid the costs. It may well be, alternatively, that the National Agency was entitled to such an order. However, no statutory provision has been identified that entitled the Medical Board of Australia to an order that it be paid the costs.

88    There may be a relationship of trustee and beneficiary between the National Agency and the Medical Board of Australia respectively in respect of the property of the Medical Board of Queensland. However, no submission was advanced that any such relationship allowed the Deputy Registrar to order that the costs be paid to the Medical Board of Australia.

89    I consider that there was no legislative basis for the Deputy Registrar to make the order of 20 February 2013 in favour of the Medical Board of Australia appointing a costs assessor under r 708 of the UCPR. In addition, there was no legislative basis for the Deputy Registrar to make the order of 14 January 2014 that the appellant pay a sum of money to the Medical Board of Australia. I emphasise that I do not intend any criticism of the Deputy Registrars, who did not have the benefit of the submissions belatedly made in this appeal.

90    I will now consider the question of whether the appellant should be granted leave to rely upon his argument that the Court should go behind the order of the Deputy Registrar of 14 January 2014 to find that in truth and reality he owed no debt to the Medical Board of Australia. In Reece v Webber (2011) 192 FCR 254, the Full Court said at 258–259 [11]:

It may readily be accepted that in “exceptional circumstances” a new argument may be raised on appeal: Dart Industries Inc v Décor Corporation Pty Ltd (1989) 15 IPR 403 at 416 per Lockhart J (Jenkinson and Gummow JJ concurring). Ordinarily, it “is elementary that a party is bound by the conduct of his case”: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ. To allow too readily the running of new points on appeal, however, may undermine the appellate process by rendering the trial process almost irrelevant: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [19] per French J (as His Honour then was). But leave to raise a new argument may be permitted where it is “expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ.

91    The explanation as to why the new argument was not taken before the primary judge seems to be that it was not thought of. Any prejudice to the Medical Board of Australia can be ameliorated to some extent by fashioning appropriate orders as to costs. Given that the argument now sought to be made by the appellant has merit, I consider that it is expedient in the interests of justice to allow the appellant to raise the new argument.

92    The order of the District Court of 14 January 2014 was not the result of a contested hearing. Although the appellant did make submissions to the Costs Assessor, no submissions were made to the Deputy Registrar who made the order. The position is analogous to a default judgment. Where a judgment is obtained by default, a court in bankruptcy will more readily look behind the judgment than if the judgment were obtained following a hearing on the merits: Wolff v Donovan (1991) 29 FCR 480 at 486. There are substantial reasons for questioning whether behind the order of the District Court there is in truth and reality a debt due to the Medical Board of Australia.

93    However, the Medical Board of Australia argues that as the order is an order of an inferior court it remains in force unless and until set aside. It submits that the Court should only go behind the judgment if there is jurisdictional error, and that there is no jurisdictional error in this case, relying upon Craig v South Australia (1995) 184 CLR 163 at 177–178, 179–180. The appellant argues that the question is whether in truth and reality a debt is owed by the appellant to the Medical Board of Australia. It submits that the question of whether the error committed by the Deputy Registrar is jurisdictional or not is irrelevant to that issue.

94    In Corney v Brien (1951) 84 CLR 343, Fullagar J cited the following observations by Lindley LJ in Ex parte Lennox; Re Lennox (1885) 16 QBD 315 at 329:

The court will not allow bankruptcy proceedings to be had recourse to for the purpose of enforcing debts which are fictitious, and not real, even although they are in the form of judgment debts.

95    Fullagar J continued at 358:

The question whether the judgment is to be reopened or ‘gone behind’ at all will, of course, often involve some preliminary investigation of the merits of the attack on the judgment. But, when once the court decides that it will ‘go behind’ the judgment, the cases which I have cited show, in my opinion, that the whole matter is open. When once it is considered proper to ‘reopen’, the only question will be whether there was, in fact and in law, a debt which could legally found the judgment — whether there was in ‘Truth and Reality’ an obligation not of record before there was an obligation of record. If the case should be one of those rare cases (I have not actually found one in the Reports since 1888, when Fry LJ said that he knew of none) where it is legitimate to ‘go behind’ a judgment entered after trial in court, there would be, I think, no alternative but to re-try the whole case. The matter to be decided is the existence or non-existence of a debt antecedent to the judgment. It has been said on several occasions that the judgment is prima facie evidence of the antecedent debt. But, when once the inquiry is undertaken, I think that the ultimate burden of proof rests on the person claiming to be a creditor. As Lord Esher MR said in Re Fraser; Ex parte Central Bank of London… ‘The existence of the judgment is no doubt prima facie evidence of the existence of a debt; but still the Court of Bankruptcy is entitled to inquire whether there really is a debt due to the petitioning creditor.’

(Underlining added.)

96    It follows from these passages that the question is whether there was truly a debt owed by the appellant to the Medical Board of Australia before the order of the District Court was made. The Court has no power to set aside the order of another court, but only to prevent the judgment creditor from having recourse to the provisions of the Bankruptcy Act, so that the judgment remains unimpeached and may be enforced by other means: Emerson v Wreckair (1992) 33 FCR 581 at 587–588, per Morling, Neaves and Spender JJ. It does not matter whether or not the making of the order involved jurisdictional error.

97    The Medical Board of Australia also submits that even if the order of the District Court ordering the appellant to pay a sum to it ought not to have been made, the Medical Board of Australia is deemed under s 40(3)(d) of the Bankruptcy Act to be a “creditor who has obtained… a final order” because it is entitled to enforce the final order. It argues that it is entitled to enforce the order because it is required to deal with the proceeding and give effect to the proceeding under ss 289(2) and (4) of the National Law (Qld). It argues that s 40(3)(d) overrides any error in the order of the District Court and the bankruptcy notice should not be set aside.

98    The Medical Board of Australia did not point to any authority supporting its submission. The difficulty with the submission is that s 40(3)(d) does no more than to deem the person entitled to enforce a final order to be a creditor who has obtained a final order for the purposes of s 40(1)(g). Section 40(1)(g) allows such a creditor to serve a bankruptcy notice on the debtor, and non-compliance with a bankruptcy notice may amount to an act of bankruptcy. Section 40(3)(d) does not affect the power of the Court to go behind the order to determine whether there is in truth and reality a debt owing.

99    QCAT decided that the appellant should pay a portion of the costs of the Medical Board of Queensland, such costs to be assessed. The legislation did not operate to create a liability in the appellant to pay the assessed costs to the Medical Board of Australia. In truth and reality, there was no debt owed by the appellant to the Medical Board of Australia antecedent to the order of the District Court of 14 January 2014. It follows that the appeal must be allowed.

100    The appellant has succeeded, but on a basis not argued before the primary judge. I consider that in the circumstance the appellant should bear his own costs of the appeal. The hearing of the appeal commenced on 26 November 2014, but had to be part heard and adjourned because the appellant raised new arguments that had not been foreshadowed in his written submissions. The appellant should pay the Medical Board of Australia’s costs of preparation of its further written submissions and the resumed hearing on 6 February 2015. Otherwise, the Medical Board of Australia should bear its own costs of the appeal.

101    I do not propose to disturb the order for costs made against the appellant by the primary judge, given the failure of the appellant to raise in that proceeding the argument upon which he has now succeeded.

Associate:

Dated:    15 July 2015