QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Health Ombudsman v Wabersinke (No 2) [2021] QCAT 58	
PARTIES:	HEALTH OMBUDSMAN	
	(applicant)	
	V	
	SHELTON WABERSINKE	
	(respondent)	
APPLICATION NO/S:	OCR251-2016	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	5 March 2021	
HEARD AT:	On the papers	
DECISION OF:	Sheridan DCJ	
ORDERS:	There be no order as to costs.	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where the Tribunal published substantive decision – where Tribunal made order for filing of submissions on costs – whether conduct of Health Ombudsman justified the making of a costs order in the interests of justice – whether pursuant to r 86 of QCAT Rules Tribunal entitled to make an order for payment of costs from date of without prejudice offer of practitioner.
Health Ombudsman Act 2013 (Qld) 
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 102, s 105, s 100 
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86
Uniform Civil Procedure Rules 1999 (Qld), ch 9, part 5

Medical Board of Australia v Wong [2017] QCA 42, cited
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, cited
Health Ombudsman v Barber (No 2) [2019] QCAT 252, cited	
REPRESENTATION:		
Applicant:	Wilson C instructed by the Office of the Health Ombudsman	
Respondent:	Houston C, solicitor, Moray & Agnew Lawyers	

APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION
[1]	The Tribunal gave its substantive decision in this matter on 14 June 2019.  At the time of giving its decision, the Tribunal requested the parties make written submissions on the question of costs.  
Power to Award Costs
[2]	Since the introduction of the Health Ombudsman Act 2013 (Qld) (HO Act), the issue of costs falls to be determined under the QCAT Act.  The starting position is that each party bears their own costs unless “the interests of justice require” the tribunal to make a costs order against a party.  That gives to the tribunal a broad discretion.
[3]	Section 102(3) of the QCAT Act gives the tribunal guidance as to the matters that it may have regard to in considering whether the interests of justice require a costs order, including conduct unnecessarily disadvantaging another party to the proceeding, the nature and complexity of the dispute, the relative strengths of the claims made by each of the parties, the financial circumstances of the parties and anything else the tribunal considers relevant.
[4]	The question for the tribunal has been formulated as:
…whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs order in s 100.
[5]	The Court of Appeal in Medical Board of Australia v Wong described the question as being whether there was “a basis for departing from the default position”.
Submissions
[6]	On behalf of Dr Wabersinke, it was submitted that there were considerations in this case which would justify the making of an award of costs in her favour against the Health Ombudsman.  The submissions were made on two bases: 
(a)	The conduct of the Health Ombudsman was such that the Tribunal should exercise its discretion to make an order for costs against the Health Ombudsman in the interests of justice; and
(b)	Pursuant to r 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules), the Tribunal is entitled to make an order for the payment of costs to Dr Wabersinke by the Health Ombudsman from the date of the making of the offer on behalf of Dr Wabersinke dated 5 June 2017.
[7]	In support of the request by Dr Wabersinke for the making of a costs order, it was said that the Health Ombudsman did not accept any of the offers made by Dr Wabersinke within the time that the offers were open and that the decision of the Tribunal was not more favourable to the Health Ombudsman than Dr Wabersinke’s various offers. It was said, which was not disputed, that the offers were clearly expressed in terms that suggested they would be relied on and placed before the Tribunal on any question of costs.  On that basis, on behalf of Dr Wabersinke, it was submitted that the terms of r 86 meant that the Tribunal could make an order for the Health Ombudsman to pay the costs of Dr Wabersinke incurred after her offer of 5 June 2017. It was submitted that the continuing insistence of the Health Ombudsman for a three to six month period of suspension, with continued reliance on comparative decisions not supported by the Tribunal’s decision, meant that in the exercise of the Tribunal’s discretion, costs should be awarded against the Health Ombudsman. 
[8]	On behalf of the Health Ombudsman, it was submitted that there should be no order as to costs. It was said that there was no unreasonable behaviour on the Health Ombudsman’s part sufficient to justify a departure from the default position.  In the alternative, it was submitted that the Tribunal should not award costs pursuant to r 86. It was submitted that, “it is inapt in the present to apply the costs rules regarding an offer to “settle the dispute” to a disciplinary proceeding bought by the Health Ombudsman…”  It was further submitted that the Health Ombudsman’s behaviour in failing to accept an offer could not be said to be unreasonable in the circumstances. 
Effect of offer
[9]	On 5 June 2017, a “without prejudice save as to costs” letter was sent to the Health Ombudsman on behalf of Dr Wabersinke. Pursuant to the terms of the letter, Dr Wabersinke offered that there be a finding of professional misconduct, to accept the imposition of a reprimand, to make the payment of a fine of $5,000 (or a suspension for one month) and that there be no order as to costs.  The offer was said to be open for acceptance for a period of 14 days.  The letter detailed the proactive steps which Dr Wabersinke had taken since the misconduct. 
[10]	Subsequent to the making of the offer, Dr Wabersinke filed a detailed affidavit in the proceedings.  The affidavit led to the Health Ombudsman requesting additional material from Dr Wabersinke. The position taken by the Health Ombudsman was that the offer could not be fully considered until that material was received.  In the response, the Health Ombudsman commented that any agreement which was reached between the parties would at best result in joint submissions to the Tribunal on sanction and costs: the parties not being able to settle the proceedings as the Tribunal must make its own decision in the public interest.
[11]	Given the affidavit filed by Dr Wabersinke, the request made by the Health Ombudsman for further information could not be said to have been unreasonable.  The parties continued to exchange correspondence and in the period between July and October 2017 each party made further offers, with all offers being said to be “without prejudice save as to costs.”
[12]	The parties failed to reach agreement.  The only difference being with respect to the need for and period of suspension.  The Health Ombudsman maintained that the facts and circumstances required a suspension of between three to six months whereas Dr Wabersinke considered the appropriate penalty was a fine or at most a suspension for one month. 
Discussion
[13]	Given the misconduct by Dr Wabersinke and the finding of professional misconduct, which was admitted, there can be no doubt that the proceedings were properly commenced by the Health Ombudsman.  Further, as acknowledged by Dr Wabersinke, the imposition of disciplinary orders was ultimately a matter for the Tribunal, even where the parties have reached an agreed position. 
[14]	Given the nature of disciplinary proceedings, even where the parties had reached agreement, it was my usual practice to require the matter to proceed by way of an oral hearing. It was my view that the attendance of the practitioners before the tribunal brought their attention to the seriousness of the events the subject of the charges.
[15]	Whilst the Tribunal did not accept the submissions of the Health Ombudsman as to sanction, in circumstances of this case, it could not be said that the conduct of the Health Ombudsman should be regarded such as to warrant a departure from the default position.  In those circumstances, I am not satisfied that the Tribunal is required, in the interests of justice, to make a costs order under s 102 of the QCAT Act. 
[16]	Nor do I consider that r 86 of the QCAT Rules can be used as a basis for the making of a costs order in disciplinary proceedings.
[17]	Rule 86 must be read in conjunction with s 105 of the QCAT Act. Section 105 provides:
The rules may authorise the tribunal to award costs in other circumstances including, for example, the payment of costs in a proceeding if an offer to settle the dispute the subject of the proceedings has been made but not accepted.
[18]	Rule 86 provides:
(1)	This rule applies if:
(a)	a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and
(b)	the other party does not accept the offer within the time the offer is open; and
(c)	in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.
(2)	The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.
(3)	If a proceeding involves more than 2 parties, this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties.
(4)	In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must –
(a)	take into account any costs it would have awarded on the date the offer was given to the other party; and
(b)	disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.
[19]	These provisions are like the provisions contained within ch 9, part 5 of the Uniform Civil Procedure Rules 1999 (Qld) which are designed to facilitate the early resolution of civil proceedings. 
[20]	The tribunal in Health Ombudsman v Barber (No 2) previously commented:
That r 86 is directed towards the proceedings in the nature of civil proceedings is apparent by the use of the word ‘dispute’. That word is not apt to describe proceedings by a regulatory body in the public interest against a practitioner for the protection of the public.  Neither is the use of the word ‘settle’ [in r 86]... A proceeding by a regulatory body is not usually regarded as one which could be ‘settled’. The concept of an order which is more favourable to the other party is also not apt to describe the situation of a statutory regulator.
[21]	That is not to say, as has been commented previously, that the parties should not be “encouraged to limit the issues in dispute and resolve, as far as possible, the matters in issue in the proceedings.” Further, the conduct of both parties in the course of the proceedings is one of the matters listed under s 102 of the QCAT Act as being a relevant consideration to the exercise of the discretion to award costs. 
[22]	Those matters do not, however, require that a statutory provision designed to settle civil proceedings between different parties should apply to disciplinary proceedings brought in the public interest and for the protection of the public, and where the ultimate result, even if agreed, is not one dictated by the parties, but subject to the approval of the tribunal.
[23]	Even if s 105 and r 86 applied, the tribunal is not required to award costs to the party who made the offer.  Rule 86(2) leaves the matter in the discretion of the tribunal. 
[24]	Given the various offers made and the additional material exchanged subsequent to the making of the first offer by Dr Wabersinke, even if I considered that s 105 and r 86 applied, I would not consider it an appropriate matter in which the Tribunal’s discretion should be exercised to make an order for costs, as sought by Dr Wabersinke.
[25]	Nor, for the reasons previously stated, do I consider the circumstances justify a departure from the default position.
[26]	Accordingly, the order of the Tribunal is that there be no order as to costs.