Bahramy v Medical Council of NSW

The reasoning for the costs order made

1. As will become apparent when we discuss Mr Bahramy's submissions, it is useful if we refer briefly to the reasons for the costs order made by us, which are set out in [148]-[155] of our reasons, dated 16 October 2014. For convenience we now reproduce those paragraphs: The relevant principles to be applied in respect of costs applications in disciplinary proceedings are subject of well- known appellate authority (see Ohn v Walton (1995) 36 NSWLR 77). These proceedings under s 163A require the hearing of an inquiry (s 163B). Schedule 5D cl 13 (a NSW provision of the National Law) provides: The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or other any of person entitled to appeal (whether as of right or because leave to appear has been granted) at any inquiry or an appeal before the Tribunal to pay the costs to another person as decided by the Tribunal. Clause 13 (2) and (3) provide a regime for obtaining a costs certificate from the Tribunal, and for the costs order to be enforced and judgment obtained in the District Court. Although not applicable to these proceedings, which were commenced prior to the introduction of the Civil and Administrative Tribunal Act, cl 4 now excludes the operation of s 60 of the Civil and Administrative Tribunal Act. Section 60 (4) (b) of the Civil and Administrative Tribunal Act provides that Tribunal may, if costs are ordered by the Tribunal, order that they may be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 (NSW) or on any other basis. As the National Law has no NSW or other provision which enables a cost effective and timely manner for costs to be assessed if agreement is not reached between parties, s 60 (4) (b) would fill that vacuum. It is perhaps regrettable that such provision is not included in the National Law as it would obviate the necessity for the Tribunal to act in a costs assessing role if agreement on costs cannot be reached, rather than the parties being able to avail themselves of the expertise and experience of a qualified costs assessor. Additionally, s 175B, which is found in Div 14A of Part 8 of the National Law, as discussed by the Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 below, provides a source of power to award costs "for the proceedings". The question of the power to award costs is subject of discussion by Meagher JA, with whom Basten and Emmett JJA agreed, in Health Care Complaints Commission v Do [2014] NSWCA 307 albeit in the context of an appeal under s 162 A of the National Law. After referring to the power in s 175B of the National Law which has national application by reason of s 201, his Honour noted: in respect to the power to award costs That is a provision having national operation pursuant to s 201 it should not be subject to local rules. It should be treated as conferring an unfettered discretion on the Tribunal. His Honour then referred to the decision of the Court of Appeal in Health Care Complaints v Philipiah [2013] NSWCA 342 as follows: In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. Lucire dealt with a provision in the Medical Practice Act 1992 (NSW), Sch 2, cl 13, which also conferred an open power. Whatever the true extent of the power conferred on this Court in respect of costs of this appeal, it is appropriate to adopt the same approach as would have been adopted in the Tribunal, namely that there was an unfettered discretion, although the compensatory principle militated in favour of a successful party obtaining an order for costs. In these proceedings the applicant has been unsuccessful. While we accept he is impecunious, there are no justifiable reasons advanced by him which would see departure from the usual compensatory rule as applicable. Accordingly, we are satisfied it is appropriate to make an order that the applicant pay the Council's costs as agreed. If agreement as to the quantum of costs cannot be agreed, the costs may be determined by this Tribunal.

Relevant legislative provisions

1. It is also useful that we set out the provisions of Schedule 5D cl 13 in force at the time these proceedings were commenced as that clause empowers the Tribunal to make a costs order against a party entitled to appear or a non-party and also provides a mechanism, in part, for enforcement of a costs order. It is in the following terms: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate.
2. As we discussed in our substantive reasons, after the commencement of the Civil and Administrative Tribunal Act 2013 (NSW) the Health Practitioner Regulation National Law No 86a (NSW) (the National Law) was amended and now includes cl 13 (4) which provides that cl 13 applies instead of s 60 of the Civil and Administrative Tribunal Act. We note that s 60 provides, as a general rule in proceedings in the Tribunal, each party pays that party's own costs. Costs may however be awarded in special circumstances, and if awarded assessed under the costs assessment scheme operating in NSW. Section 60 (4) provides a cost effective, efficient, impartial means of assessment of costs.

The Council's affidavit material and submissions

1. The Council rely on an Affidavit of Catherine Vale affirmed on 4 June 2015. Ms Vale deposes that in February 2015 another solicitor in the employ of the Crown solicitor wrote to Mr Bahramy advising that the Council intended commencing recovery proceedings in respect of the costs order made. She also deposes that a letter was sent to Mr Bahramy on 23 March 2015 in which an offer to settle the quantum of costs in the sum of $84,170.00 expiring on 7 April 2015 was made (the Calderbank letter). The Calderbank letter was expressed to be without prejudice except as to costs.
2. Annexed to Ms Vale's affidavit is a copy of correspondence from Mr Bahramy in response to this correspondence in which he said: Please be advised that fresh crucial evidence has been obtained, and a Notice of Intention to Appeal has been filed with the Supreme Court of NSW regarding the Tribunal's decision and its orders in the above case. I am awaiting access to a 'vital' piece of evidence, and shortly shall commence the appeal. The cost order shall be a major subject of the appeal.
3. We pause at this point to record that at a directions hearing held by the presiding Judge on September 2015 Mr Bahramy advised that his application for a stay of the costs order was refused by Meagher JA in the Court of Appeal, and accordingly he requested the Tribunal proceed to determine the quantum of costs payable.
4. The Council also rely on an affidavit of Catherine Vale affirmed on 21 October 2015. In that affidavit Ms Vale deposes to the history of the matter and she refers to correspondence sent to Mr Bahramy on 15 November 2013 which invited him to withdraw his application then before the Medical Tribunal of NSW. The history of the proceedings thereafter is subject of [5] to [8] of Ms Vale's affidavit. That history is essentially set out in our substantive reasons at [11]. In the letter the Crown solicitor noted that it would oppose Mr Bahramy's application for re-instatement, or if the Tribunal did consider he should be re-instated to the register, it would seek that a number of conditions be placed on his registration. The letter further advised that if the application proceeded the Council would seek an order for indemnity costs.
5. On 5 June, 2015 the Council provided a summary of their costs. A copy of that summary is annexed to these reasons and marked "A". Also provided on behalf of the Council are copies of various invoices. For ease of understanding of the Council's claim we reproduce the details of the invoices in a table form: Company Date Description Total Amount Law In Order Pty Ltd 2 September 2013 Copying $170.73 Hamervage Pty Ltd 20 September 2013 Process servers fee for service of summons Charles Sturt University $126.20 Hamervage Pty Ltd 20 September 2013 Process servers fee for service of summons the University of Sydney $183.40 Hamervage Pty Ltd 24 September 2013 Process servers fee for service of summons Dr Graham Chin $115.20 Michael Diamond Pty Ltd 4 November 2013 Review papers, report $7,524.00 Law In Order Pty Ltd 8 November 2013 Copying $1,277.43 Crown Solicitor's Office 5 September 2013 Cabcharge to attend Tribunal hearing $8.58 Crown Solicitor's Office 30 September 2013 Courier fees $29.49 Hamervage Pty Ltd 10 October 2013 Process servers fee for service of summons NRM Corporation Pty Ltd $137.20 Patricia Lowson - 8 Garfield Barwick Chambers 15 January 2014 Invoice for reading documents, telephone conferences, review emails $3,740.00 Crown Solicitor's Office 18 October 2013 to 08 November 2013 Bulk Disbursements Breakdown - Cabcharge voucher 1012336 $47.63 Crown Solicitor's Office 19 December 2013 Bulk Disbursements Breakdown - Cabcharge voucher 1019739 $20.18 Crown Solicitor's Office 14 November 2013 Bulk Disbursements Breakdown - Cabcharge voucher 1015703 $7.06 Crown Solicitor's Office 27 September 2013 to 4 October 2013 Bulk Disbursements Breakdown - Cabcharge voucher 1007131 $40.67 Crown Solicitor's Office 4 October 2013 to 28 October 2013 Bulk Disbursements Breakdown - Couriers voucher 1008689 $40.36 Crown Solicitor's Office 8 November 2013 Bulk Disbursements Breakdown - Couriers voucher 1015001 $20.96 Michael Diamond Pty Ltd 21 March 2014 Review material, prepare report $4,493.50 Healthscope Medical Centres - Dr Graham Chin 3 January 2014 Invoice for Medical report (subpoena) $33.00 Law In Order 7 February 2014 Copying $100.87 Crown Solicitor's Office 13 January 2014 to 15 January 2014 Bulk Disbursements Breakdown - Cabcharge voucher 1021986 $27.95 Crown Solicitor's Office 17 February 2014 Bulk Disbursements Breakdown - Couriers voucher 1024414 $11.04 Patricia Lowson - 8 Garfield Barwick Chambers 21 April 2014 Invoice for conferences with client, reading submissions and preparation for the hearing $7,480.00 Crown Solicitor's Office 10 April 2014 to 17 April 2014 Bulk Disbursements Breakdown - Cabcharge voucher 1034785 $41.99 Patricia Lowson - 8 Garfield Barwick Chambers 10 July 2014 Invoice for preparation for hearing , and brief on hearing $6,820.00 Crown Solicitor's Office 25 July 2014 Bulk Disbursements Breakdown - Cabcharge voucher 1054686 $19.88 Crown Solicitor's Office 9 July 2014 to 10 July 2014 Bulk Disbursements Breakdown - Cabcharge voucher 1048833 $38.34 Crown Solicitor's Office 9 July 2014 Bulk Disbursements Breakdown - Petty Cash voucher 1053121 $15.00 Michael Diamond Pty Ltd 21 July 2014 Court Appearance 2 days $7,040.00 Crown Solicitor's Office 17 June 2014 Bulk Disbursements Breakdown - Cabcharge voucher 1045788 $17.66 Patricia Lowson - 8 Garfield Barwick Chambers 8 September 2014 Invoice for preparation for hearing , and brief on hearing $5,390.00 Crown Solicitor's Office 19 September 2014 Bulk Disbursements Breakdown - Cabcharge voucher 1063849 $7.47 Patricia Lowson - 8 Garfield Barwick Chambers 14 October 2014 Invoice for preparing submissions HCCC v Do and conferring with client $1320.00

1. In the first written submissions at [6] provided by the Crown solicitor it is noted that the Crown solicitor acted on behalf of the Council between 22 August 2014 and 17 November 2014. The submissions also set out the names of the solicitors involved in the matter from the Crown solicitor's office and their hourly rates charged. These rates vary from $348 for the two senior solicitors involved in the matter, the junior solicitor's rate of $282.00 per hour which increased to $282.00 together with the rates for an unspecified number of paralegals at a $138.00 to $144 per hour.
2. The submission notes appearance dates during 2013 in the former Medical Tribunal recording three mentions in the District Court. The submission goes on to refer to dates in this Tribunal the accuracy of which is not in doubt, and states that the Council's costs have been quantified to be $42,789.00 and that disbursements total $42,168.84.
3. The submission notes: The Respondent submits it is a model litigant, and as the Crown solicitor serves the public interest, costs are competitive and lower than those generally charged in the private sector. …… The Respondent submits that these costs ought to be allowed as quantified, especially when one has regard to the question of proportionality, not only in terms of the quantum of the costs as against the value of the subject of the proceedings, but also in terms of the complexity of the matter, the conduct of the parties, the importance of the proceedings to the parties and the orders made by the Tribunal The procedures involved and the work undertaken, and hence the costs incurred, are in proportion to the importance and complexity of the subject matter of the dispute.
4. In the submissions in reply the Crown solicitor refers to Schedule 5D cl 13 in its current form (that is including cl 13 (4)). As noted earlier in these reasons, having regard to the transitional provisions on the coming into operation of the Tribunal we do not accept cl 13(4) has any operation in respect of this application. The submissions go on to contrast the position in respect of costs under the Uniform Civil Procedure Rules and assert, we would say correctly, those rules have no application in the Tribunal. The submissions note "Thus the Tribunal is at large as to the proportion and quantum of costs it can order". Having noted its role as a contradictor, the lack of formal pleadings, and the correspondence with Mr Bahramy including the Calderbank letter, the submissions go on to state that in November 2013 the Council put Mr Bahramy on notice that it would seek costs on an indemnity basis should he proceed with his application. It is therefore submitted that the November letter provides a proper basis to order costs on an indemnity basis.
5. At [11] the Crown solicitor confirms the Council seeks costs on an indemnity basis and refers to relevant authorities on indemnity costs. It is further submitted that it would be appropriate to adopt the approach reflected in Rule 42(5) of the Uniform Civil Procedure Rules.
6. We note the written submissions address the question of material provided by Mr Bahramy in his written submission. The relevant material purports to be a transcription of a recording made by Mr Bahramy, while he was being interviewed by Dr Diamond, apparently without Dr Diamond's knowledge or consent. The submission asserts Mr Bahramy did not tell Dr Diamond that he was recording the interview and that the interview could contravene s 7 of the Surveillance Devices Act (NSW) 2007.
7. The submissions then note that a complaint about Dr Diamond agitated by the practitioner to the Health Care Complaints Commission after the conclusion of the substantive hearing was rejected.
8. The submissions also address Mr Bahramy's submission that we should "discard" our costs order made on 16 October 2014. The submissions also note that although Mr Bahramy now raises as a matter to take into account the decision of the Court of Appeal in HCCC v Do [2014] NSWCA 307 that he was afforded an opportunity to make submissions on that judgment before we published our reasons, but did not make the submission he now addresses in his submissions. It is further noted that Mr Bahramy is currently agitating his assertions about the effect of HCCC v Do in the Court of Appeal.

Mr Bahramy's submissions

1. As noted above Mr Bahramy has produced lengthy written submissions. We find much of his material is misconceived or irrelevant to the issues we now have to determine such as his submissions we should "discard" the costs order made on 16 October 2015, or that we should not allow Dr Diamond's costs so as to provide "accountability amongst the expert witnesses in general, let alone that it prevents flagrant wastefulness and profligacy by the others who act on behalf of the expert witness".
2. Mr Bahramy challenges the quantum of the expert's fees at $17,325.00 noting that he received copies of invoices of Dr Diamond's fees for his first and second report and presence at the Tribunal for one and a half days. He seeks to conflate the costs incurred by the Crown solicitor in conferring with Dr Diamond as part of the expert costs which he estimates at an additional $4,448.50.
3. Mr Bahramy submissions do not address the Calderbank letter, counsel's fees, or the hourly rate charged by solicitors and paralegals in the employ of the Crown solicitor.
4. Understandably, as he is self-represented, Mr Bahramy does not address the issue of whether the costs application made before us on a party/party basis but now sought on an indemnity basis is procedurally unfair or unavailable. We address this question shortly.
5. We accept the submission of the Crown solicitor that we should disregard in this application the purported transcript of Mr Bahramy's interview with Dr Diamond. Principally we do so because do not consider it relevant. Its provenance is of some doubt.
6. In his submissions filed on 28 October 2015 Mr Bahramy refers to the submissions of the Crown solicitor in respect of the recording of Mr Bahramy's interview with Dr Diamond. As we have found that evidence is irrelevant to this application, it is unnecessary we consider the submissions directed to interpretation of the Surveillance Devices Act 2007 (NSW).

Indemnity costs principles

1. The principles relevant to an award of indemnity costs are well known. In Colgate-Palmolive Company v Cussons Pty Limited & Ors [993] FCA 536 at [21] Shepperd J referred to awarding indemnity costs where special circumstances exist, but also noted that costs always remain at the discretion of the judge. His Honour set out guidelines when considering an award of indemnity costs at [24].
2. The Council's submissions refer to the decision of Da Rin v Duffy (No 2) [2014] NSWCATOD 59. In that case an order for indemnity costs was sought on the basis that the applicant, properly advised, should have known that he had no hope of success.
3. The Council submits that in considering its application for indemnity costs we should be guided by rule 42.5 of the Uniform Civil Procedure Rules 2005. That rule sets out how costs are to be assessed if awarded on an indemnity basis. We do not find rule 42.5 relevant to this application other than noting it enables a party who has obtained an indemnity costs order to recover all costs expended by that party in full.

Indemnity costs - discussion

1. It is relevant to note that when the costs order was sought before the Tribunal we were not asked to award costs on an indemnity basis. Mr Bahramy had no opportunity to make submissions opposing costs on an indemnity basis and that claim was not articulated by the Crown solicitor until submissions in reply except for the reference in the November 2013 letter. We are satisfied that it would be procedurally unfair to Mr Bahramy as a self-represented litigant, or in fact in any litigant against whom an indemnity costs order is sought, for an application on that basis not to be raised at the time the costs order is sought before the Tribunal. Our order of 16 October 2015 was made on the usual basis of a party/party costs order. It should not be re-visited.
2. Even if we are wrong in our finding that it is too late for the Council to seek an indemnity costs order we are not satisfied that Mr Bahramy's application was in the category of cases referred to in Re Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & ors [1988] FCA 202 and necessarily doomed to fail. It was only on the testing of Mr Bahramy's evidence in cross-examination, the admission of material obtained from the universities under Summons, and hearing Dr Diamond's expert evidence that we rejected his application. In summary, we do not accept the submission the application was doomed to fail, or that it was continued for some ulterior motive is established. We note the Crown solicitor's November 2013 correspondence contemplated that the Tribunal could restore Mr Bahramy to the register but subject to conditions. Nor do we find any special circumstance which warrants the making of an indemnity costs order.

Should the Tribunal undertake a "taxing process" or should it assess the costs globally in a fixed sum?

1. The affidavits and submissions of the Crown solicitor on behalf of the Council do not directly address this question. While the Crown solicitor has annexed invoices for disbursements, no breakdown of the activities of the solicitors involved in this matter has been provided to enable us to assess whether activities should properly be classed as solicitor/client costs or party/party costs. We have not been provided with an itemised bill of the Crown solicitor's costs that would have enabled us to undertake a taxing exercise on the traditional item by item basis undertaken by a taxing officer on a taxation of costs.
2. While we are cognisant that we could have made an order requiring such a bill to be prepared and submitted, we have been guided by the objects of the Civil and Administrative Tribunal Act. We have had regard particularly to s 3 (d) namely that the Tribunal resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible and s 38 (4) that provides the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. We note that s 38 (4) is found in Part 4 of the Act which deals with Practice and Procedure and that its application is subject to the enabling legislation (the National Law). But we are not aware of any provision in the enabling legislation which overrides s 38 (4).
3. In the recent decision of Qasim v Health Care Complaints Commission [2015] NSWCA 282 Meagher JA with whom McColl and Ward JJA agreed explained that an award of costs is a matter of discretion. His Honour on allowing an appeal against the Tribunal's costs order, and re-exercising the discretion allowed the global sum of $70,000 as claimed by the Health Care Complaints Commission as a "fair and reasonable" sum for its costs. We note that the hearing before the Tribunal in Qasim extended over eight days and the Tribunal heard expert evidence from both treating and non-treating expert psychiatrists.
4. In the circumstances of this case, we find it appropriate to take into account the general quantum sought by the Council for professional costs, and we have regard to the disbursements incurred that are substantiated by copies of invoices. But as we cannot effectively tax the Crown solicitor's professional costs we propose to deal with the assessment of costs on a global basis.

Discussion and conclusions

1. We commence our discussion by noting Mr Bahramy's submission that we should "discard" our costs order. This submission is, with respect to him, misconceived. The Tribunal has made a final costs order and the order has been perfected, although leave was granted to restore to the Tribunal to fix the quantum of the costs. We note that, had s 60(4) of the Civil and Administrative Tribunal Act been available, we would have ordered in the event of a dispute as to quantum of the party/party costs payable that costs be assessed bringing any disputation to an end.
2. As discussed above, we are not satisfied that this is an appropriate matter in the exercise of our discretion to award indemnity costs, but our assessment is generally based on what is fair and reasonable on a party/party basis.
3. We deal first with the sum of $42,168.84 (excluding GST) sought by way of re-imbursement for disbursements. We do not find it appropriate to award the whole of this sum. First, while we note Ms Lowson's fees are very modest, there are errors in the invoices including for the two days of the hearing, namely 9 and 10 July 2014 as these have been claimed twice (see Invoices dated 10 July 2014 and 8 September 2014). Ms Lowson's invoice dated 21 April 2014 appears from the items charged principally to be matters that would be recovered in a solicitor/client or indemnity assessment including an advice on Mr Bahramy's change of name, a matter we found of little consequence.
4. We also find that the sum claimed for Dr Diamond's expenses should be reduced as his fees relate to both days of the hearing, rather than limited to the day on which he gave evidence and also include items of a solicitor/client basis.
5. We are simply unable to make any practical assessment of the reasonableness or otherwise of charges incurred for taxi fares and the like for solicitors to attend directions hearings before the former Medical Tribunal and this Tribunal, or the reasonableness or otherwise of photocopying and courier expenses claimed.
6. We note that some of the charges incurred for service of Summons/s were not in respect of documents tendered before us. It is impossible for us to determine whether the basis for the issue of such Summons was proper, and whether it was necessary for service to be effected on an urgent basis.
7. We can only deal with the professional costs of the Crown solicitor on a broad brush basis noting the lack of an itemised bill of costs. Doing the best we can on the evidence before us we find it would be appropriate to order that the costs and disbursements be fixed in the global sum of $50,000.
8. To bring finality to these proceedings insofar as we are able we propose to order that the costs should be paid in 28 days unless the Council otherwise agree with Mr Bahramy.
9. In making this order we are conscious that at the time of the hearing Mr Bahramy had no employment and was awaiting eligibility for Newstart benefits. He was living in rented accommodation and on the evidence before us had no tangible assets. Mr Bahramy asserts in his submissions filed on 28 October 2015 that he has not worked for approximately 7 years, and that he lives in a shared rental flat. He does not disclose any assets or source of any income. We are unsure of Mr Bahramy's present circumstances but it may be that the Council will be prepared, now that the quantum of costs payable has been established, to consider a regime of instalment payments as a practical option before considering enforcement proceedings as provided in cl 13 (3) of the National Law.
10. We do not find it appropriate to make any costs order for the cost of preparing written submissions.

ORDERS 1. Mr Farid Bahramy (previously known as Fareed Bahramy) shall pay the costs and disbursements of the Medical Council of NSW in the sum of $50,000. 2. The costs payable as set out in Order 1 of these orders shall be paid within 28 days of the date of this order unless otherwise agreed by the Medical Council of NSW.

Annexure A (18.0 KB, pdf) I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2015