Chaudhry v Medical Board of Australia  QCAT
The Queensland Civil and Administrative Tribunal
(Tribunal) (equivalent to the State Administrative
Tribunal in Western Australia) has a broad discretion to make any
order about costs it considers appropriate.
There is no general rule that the successful party will be
awarded costs unless special circumstances require departure from
In the present case, the Medical Board of Australia's
(the Board) failure to investigate the medical
practitioner's conduct was a primary consideration in the
Tribunal making an award of costs against it.
Dr Muhammad Tahir Bashir Chaudhry is an immunologist and
allergist. The Board imposed conditions on Dr Chaudhry's
registration following notification that Dr Chaudhry had failed to
check the 1,350 pathology reports in his holding file and that he
thus placed patients in danger. Dr Chaudhry applied to the Tribunal
to set aside the Medical Board of Australia's decision to
impose conditions on his registration and was successful. Dr
Chaudhry then sought an order that the Board pay his costs of and
incidental to the application.
Section 201 of the Health Practitioner Regulation National
Law Act 2009 (QLD) (National Law) gives the
Tribunal a broad discretion to make any order about costs it
considers appropriate. In the present case, the Tribunal found that
there is no general rule that the successful party will be awarded
costs unless special circumstances require departure from it. The
imposition of such a general rule would fetter the Tribunal's
The Board decided to impose conditions on Dr Chaudhry's
registration after it had formed a reasonable belief that the
conditions were necessary to protect the public. On 2 May 2013, Dr
Chaudhry applied for a review of the Board's decision. On 19
July 2013, Dr Chaudhry was notified that the Board would further
investigate the matter in accordance with its requirements under
section 158(1)(b) of the National Law. On 30 August 2013, Dr
Chaudhry provided detailed correspondence and submissions which
Dr Chaudhry could check the patient's pathology results
without accessing the holding file;
The holding file contained pathology results ordered by other
medical practitioners and he was not required to review these;
The medical records confirm that Dr Chaudhry reviewed and
actioned all relevant pathology results.
On 19 February 2014, Dr Chaudhry filed his affidavit attesting
to, amongst other things, the above information.
Since the Board's decision to impose conditions on Dr
Chaudhry's registration, it was unclear what further action the
Board took. There was no evidence that the Board further
investigated the matter in order to progress the proceedings. The
Tribunal held that the Board should have undertaken a diligent
investigation of the matter as early as April 2013 and at least
following Dr Chaudhry's submissions in August 2013. Their
investigation would have displaced the Board's reasonable
belief as to Dr Chaudhry's conduct. The Tribunal further held
that the Board had powers of investigation which it was obliged to
exercise, but did not.
On the basis that Dr Chaudhry was successful with the review,
that he established the matters pleaded in his response, and that
the Board failed to ascertain those matters by way of a timely and
diligent investigation, the Tribunal found that Dr Chaudhry was
entitled to an award of costs.
This case highlights the importance of the Medical Board of
Australia undertaking an investigation of the matter in a timely
and diligent manner. In the present case, the Board's failure
to investigate was a primary consideration in the Tribunal making
an award of costs against it. The case also reinforces the
Tribunal's broad and unfettered discretion to make any costs
orders that it considers appropriate. Similar legislation applies
in Western Australia where section 87(4) of the State
Administrative Tribunal Act indicates that whilst the
Tribunal's discretion is not limited when making orders as to
costs, it must consider whether the party seeking costs genuinely
assisted the Tribunal to make a decision on its merits and whether
the Board genuinely attempted to make a decision on its merits.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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