Bolton v Health Care Complaints Commission

Judgment (7 paragraphs)

[1]

The applicant's submissions

The applicant sent an email to the Commission copied to the Tribunal, on 12 February 2024. The email states: I have been given the opportunity to oppose the Tribunal's proposal to cover HCCCs legal costs. Ultimately I understand that financial difficulty is not usually considered. However my financial situation is the reason I did not seek legal representation at either my primary or secondary Tribunal hearings. Upon leaving prison in 2018 I was devoid of any monetary savings, employment, viable qualifications or assets. I had alternatively acquired significant legal debt. Since then I have qualified in Traffic Control and in my initial application for re-registration I shared my financial status with the HCCC and Tribunal and detailed my unsuccessful efforts to organise a payment plan with the financial sector of the HCCC and their ultimate failure to follow up in early January 2022 regards this. Again my financial status has changed. At Christmas my employer lost local contracts in Traffic Control. As such I have not received any paid work in 2024 and am currently unemployed and in receipt of Centrelink benefits. I have attached images describing my financial status. Currently I am continuing my coursework in Cert 3 Conservation and Ecosystem Management in person now at TAFE 2 days per week. My hope is for employment within the Environmental industry upon qualification at the end of this year. As it stands my qualification in B. Optometry and PGrad Ocular Therapeutics are redundant from a clinical employment perspective. My only other qualification is in Traffic Control and as mentioned at the moment no work is available. I have always been single and have always relied my own income. There are no other revenue sources in my household. Financially I am not in a position to pay HCCCs costs incurred in either the Primary or Secondary Tribunals and this is not going to change any time soon. As described I have no personal assets and the loan noted in my bank statements is for my vehicle I need to attend any available work. I do not own the vehicle outright. At this point I have not sought to determine or find any precedents to my situation. I am simply stating the facts of my financial situation.

The respondent's submissions

The respondent's submissions may be summarised as follows.
First, as the practitioner alluded to, an applicant's financial situation is not a relevant consideration for the Tribunal in its determination under the Health Practitioner Regulation National Law 2009 (NSW) (National Law).
Secondly, as outlined at [80] of the Primary Decision, this is a costs jurisdiction, and the ordinary rule is that costs follow the event. Further, mere impecuniosity is not a justifiable reason for departing from that rule: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].
Thirdly, the Tribunal, in reinstatement applications, where the application for review was dismissed, and the practitioner opposed costs on the grounds of financial hardship, has regularly ordered the practitioner to pay the Commission's costs: Blair v Health Care Complaints Commission [2023] NSWCATOD 35; Fryar v Health Care Complaints Commission [2015] NSWCATOD 117 and Holbrook v Health Care Complaints Commission [2014] NSWCATOD 86.
Fourthly, reinstatement proceedings arise because of the prior misconduct of the practitioner and can be seen as ancillary to the original proceedings which resulted in the cancellation of the practitioner's registration, so it is open to the Tribunal to order the practitioner to pay the Commission's costs: Ake v Health Care Complaints Commission (2019] NSWCATOD 165 at [48].
Fifthly, a reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The practitioner should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the Commission conducts its case appropriately, it should be compensated, regardless of whether the application for reinstatement is granted or refused: Ristevski v Medical Council of NSW [2016] NSWCATOD 18 at [87], followed in: Ake at [49]-(53]; Stone v Health Care Complaints Commission (2020] NSWCATOD 57 at [41-[45]; Jan v Health Care Complaints Commission [2021] NSWCATOD 141 at [33], [61]; Moslemi v Health Care Complaints Commission [2022] NSWCATOD 170 at [41]-[49].
Sixthly, in conducting a review of a relevant order under s 163B of the National Law, there is a public interest in the Tribunal being assisted by the Commission because, without a contradictor, there would be a risk that the Tribunal might only have available the self-serving evidence adduced by the practitioner: Ake at [51].
Seventhly, the involvement of the Commission as a public interest contradictor in review proceedings assists the Tribunal in discharging its obligation to ensure that all relevant material is disclosed so as to enable it to determine all relevant facts in issue: Civil and Administrative Tribunal Act 2013 (NSW), s 38(6)(a); Ake at [51].
Eighthly, particularly in circumstances where the application for reinstatement has been dismissed, and the Commission has acted properly and responsibly in the public interest as contradictor, the fair and reasonable decision is that costs be awarded in its favour.
Finally, the Commission submits that the practitioner may approach the Commission after a costs order is made for an extension of time within which to pay its costs, or to seek a reduction in costs as agreed on the basis of financial hardship.

Consideration

As the Tribunal stated in the Primary Decision, this is a costs jurisdiction. This is well-established. And, in Health Care Complaints Commission v Livermore [2021] NSWCATOD 115 the Tribunal stated at [19]: The authorities are clear on this issue. In applying the provisions of cl 13, the general rule is that costs follow the event and that costs are intended to compensate the successful party, absent any disentitling conduct: [Health Care Complaints Commission v ] Philipiah [2013] NSWCA 342 at [42]; Lucire v Health Care Complaints Commission (No 2) [20111 NSWCA 182; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87]; Singh v Medical Council of NSW (No 2) [2015] NSWGATOD 28 at [45].
In Ake, the Tribunal set out the following principles to be applied to determine the costs of proceedings for the reinstatement of a practitioner: [46] In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. [47] Whether the discretion to award costs should be exercised in favour of the Commission raises the issue of whether the so-called compensatory principle - that without some disentitling conduct a successful party is generally entitled to recover their costs - can and should be applied where the Tribunal makes a reinstatement order under s 163B of the National Law. [48] This issue was addressed in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 (Ameisen). There, the Tribunal considered it a misnomer to describe an applicant who is reinstated following an inquiry to review a "relevant order" as having been "successful". Reasoning that this characterisation "misunderstands the nature of the respondent's involvement in the proceedings", the Tribunal pointed out at [90] that reinstatement proceedings "arise because of the prior misconduct of the applicant [practitioner], and can be seen as ancillary [to the original proceedings which resulted in the cancellation of the practitioner's registration]". The Tribunal ordered Dr Ameisen to pay the respondent Council's costs, notwithstanding its decision that he be reinstated to the register of medical practitioners. [49] This approach was followed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18. There the Tribunal concluded at [87]: Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused. [50] In Ristevski the Tribunal examined a number of cases where on review of the relevant order, the applicant practitioner was reinstated but not ordered to pay the costs of the respondent Council or Commission: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43, Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 and Roberts v Medical Council of New South Wales [2015] NSWCATOD 35. The Tribunal concluded that each case had "exceptional features" and the relevant Tribunal had been critical of aspects of the respondent's participation in the inquiry: Ristevski at [74], [78], [82] and [88]. (See also Vo v Medical Council of NSW [2018] NSWCATOD 18 at [144]. Cf Haber v Health Care Complaints Commission [2018] NSWCATOD 16; Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102) [51] We agree with the view expressed by the Tribunal in Ristevski at [70]-[71] that in conducting a review of a relevant order under s 163B of the National Law, there is a public interest in the Tribunal being assisted by the relevant practitioner Council or the Commission. Without a respondent in this class of matters, there is a risk that the Tribunal might only have available the self-serving evidence adduced by the applicant practitioner. The involvement of, to use the term coined in Ristevski, a "public interest respondent" in review proceedings, assists the Tribunal in discharging its obligation to ensure that all relevant material is disclosed so as to enable it to determine all relevant facts in issue: s 38(6)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)."
I note that in Blair, the Tribunal stated: 87. … A reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The applicant should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the [reinstatement] order is granted or refused.
While I accept that the applicant is in straightened financial circumstances, and will be unable to satisfy any costs order in the short term, the Tribunal would fall into error were it not to award costs for that reason alone. The Tribunal and the Court of Appeal have repeatedly stated that mere impecuniosity is not a justifiable reason for departing from the general rule that costs follow the event: see Philipiah at [42].
It follows that the appropriate order is, as previously indicated in the Primary Decision, the applicant must pay the respondent's costs of the proceedings as agreed or as assessed.

At a glance

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Judgment (7 paragraphs)

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Legislation Cited (1)

Cases Cited (18)

Cited By (1)