Chen v Medical Council of New South Wales [2021] NSWCATOD 64 | Case summary

NCAT Occupational|2021-04-19|Before: The Hon J, Boland AM

Introduction

On 5 August 2020 Dr Leimin Chen (the practitioner) brought an application under the Health Practitioner Regulation National Law (NSW) (the National Law) for a re-instatement order to permit him to again be registered as a medical practitioner.
Following a hearing before the Tribunal and thereafter receipt by the Tribunal of written submissions, on 29 March 2021 orders were made under s 163B(1)(c) of the National Law granting the practitioner a re-instatement order, but subject to a series of conditions.
At [125] of the decision the Tribunal noted as follows: "We did not receive any submissions on the costs of this application. We have therefore provided that if either party wishes to make an application for costs such application is to be filed within 21 days of the date of these reasons. The parties should indicate if they consent to a costs application, if any, being dealt with on the papers."
On 19 April 2021 the Tribunal received submissions on costs from the Medical Council of New South Wales (the Council). The Council's submissions indicate its consent to the costs application being dealt with on the papers. The Council seeks costs in the fixed sum of $17,554.49. The submissions note that the parties have not been able to reach agreement as to costs.
The practitioner's solicitors also attempted to file submissions on 19 April 2021, however as a result of an error in the email address the submissions were received on 3 May 2021 and on 7 May 2021 an email which should have been attached to the submissions was received by the Tribunal. The primary position adopted on behalf of the practitioner is that each party should bear their own costs of the proceedings, or if the Tribunal is against that proposal, that the practitioner should pay 50 per cent of the Council's costs.

The relevant law

The Tribunal's power to make a costs order is found in cl 13 of Sch 5D to the National Law. That clause provides as follows: 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. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
This application is being determined by me pursuant to s 165B(5A) of the National Law. That provision is in the following terms: 165 Constitution of Tribunal for complaints, applications and appeals [NSW] … (5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a).
I note that s 4 of the Civil and Administrative Tribunal Act 2013 (NSW) defines an ancillary decision to be a decision that is "preliminary to, or consequential on, a decision determining proceedings, including… (b) a decision concerning the awarding of costs in proceedings."
The authorities frequently cited in decisions concerning costs applications in disciplinary proceedings under the National Law include amongst others: Ohn v Walton (1995) 36 NSWLR 77; Health Care Complaints Commission v Do [2014] NSWCA 307; and Health Care Complaints Commission v Philipiah [2013] NSWCA 342. In the latter case Emmett JA with whom Meagher JA and Beech-Jones J agreed explained at [42]-[43]: "As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95)."
Although Meagher JA in Health Care Complaints Commission v Do refers to the fact that a practitioner whose disqualification order made in disciplinary proceedings had expired did not need to apply for a re-instatement order, his Honour's comments were made prior to the amendment to the National Law now found in s 149E. Thus, a practitioner whose registration has been cancelled must, if he or she wishes to be re-instated to the register maintained by the Australian Health Practitioner Regulation Agency, apply to the Tribunal for a re-instatement order.
The parties' submissions draw attention to the different approaches taken by differently constituted Tribunals, including the former New South Wales Medical Tribunal, to awarding costs in re-instatement applications. I discuss those authorities in my consideration of the facts in this case.

The Council's submissions

The submissions commence by referring to the Tribunal's decision and the fact that before the Tribunal the Council opposed the practitioner's application for a re-instatement order. It is also noted that in response to a request from the Tribunal, the Council provided two sets of conditions it submitted should be made if the Tribunal proposed to make the re-instatement order.
At par 9 of the submissions the Council notes: "The law on costs of a reinstatement application does not follow the ordinary course in which costs follow the event."
The submissions advance two principal arguments in support of the application for costs: 1. because the Council (or the Health Care Complaints Commission (HCCC)), in its role as contradictor, represents the public and broader profession: 1. by ensuring the applicant's evidence in support of a re-instatement application is tested; and 2. if appropriate, by suggesting appropriate conditions to apply to any re-instatement order; 1. but for the applicant's conduct which led to cancellation of his registration in the first place, it would not be necessary for the Council (or the HCCC) to adopt the role of contradictor.
In support of the two limbs in respect of which the Council submit an order for costs is justified, reliance is placed on the decision of the now repealed New South Wales Medical Tribunal in Rajesh Dinaker v Medical Council of New South Wales (Medical Tribunal (NSW), 12 December 2012, unrep). No copy of the decision was provided to the Tribunal in support of this application. However, the submissions note that at [54] the Medical Tribunal said: "As we are satisfied that it was necessary for the Council to be represented before us to test the Applicant's evidence and propose suitable conditions, we are of the view that the Applicant although successful, should pay the Council's costs."
In further support of the position that it was necessary for the Council to test the practitioner's evidence, reference is made to the findings in the disciplinary proceedings about the practitioner's lack of insight into his conduct at the relevant time.
Also in support of its application the Council's submissions refer to the decision of the Tribunal to award costs in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 and note that decision was followed in Ake v Health Care Complaints Commission [2019] NSWCATOD 165.
The submissions highlight three cases in which the Council has been successful in obtaining a costs order notwithstanding that it opposed the making of a re-instatement order; "yet the order was made": see Vo v Medical Council of NSW [2018] NSWCATOD 18; Reimers v Medical Council of New South Wales [2018] NSWCATOD 180; In Re Adrozoj Kazmierezak (Medical Tribunal (NSW), 6 May 2010, unrep); and Parajuli v Medical Council of New South Wales [2011] NSWMT 4.
In support of its application for costs in the sum of $17,554.49 the submissions highlight the following matters as relevant to the exercise of discretion: 1. the proceedings were necessitated because of the practitioner's prior misconduct; 2. the Council's role as contradictor in protecting the public by testing the practitioner's evidence in its cross-examination of him; 3. the Council's role in assisting the Tribunal by supplementing the practitioner's evidence with that of its own expert, Dr Anthony Samuels, and arranging for Dr Samuels to be available to give evidence before the Tribunal; 4. the provision by the Council of proposed conditions that would ensure if a re-instatement order was made the health and safety of the public would be protected; 5. the Tribunal did not criticise the Council in the position it took, and the Council has not engaged in any conduct which might disentitle it to costs.
At par 19 of its submissions the Council sets out the breakdown of the costs sought including counsel's fees of $7,725, the expert's fees of $3,500, solicitor's costs of $5,638 and printing costs of $691.49.

The practitioner's submissions

After setting out the background to this matter, the submissions record that it was at the Tribunal's request that the two sets of conditions provided by the Council were obtained. It is also noted that the practitioner did not contest in any substantive way that any re-instatement order should be subject to conditions.
The submissions state that because the applicant was successful in his application it would be open to the Tribunal to make a costs order in his favour. However, what is advanced is that the Tribunal should make an order that each party pay their own costs of the proceedings. It is submitted such an order would be consistent with the principles referred to in Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155.
The submissions address the Council's position that it is entitled to costs because of its role as contradictor. The submissions point out that Dr Samuels in his report dated 3 December 2020 was well aware of the earlier Tribunal's findings about the practitioner's lack of insight at the relevant time but opined that the practitioner "does seem to have insight", that the practitioner's prescribing of Ketamine was inappropriate and that he would not engage in similar conduct, and that he was open to being supervised and having conditions.
The submissions explain that, following receipt of Dr Samuels' report, the practitioner's solicitors by letter dated 6 January 2021 wrote to the Council. That letter, which is attached to the submissions, included the following: 1. that in its Reply the Council reserved its right to revisit its position upon exchange of the evidence; 2. a summary of the opinions in Dr Samuels' report, including that Dr Samuels expressed the view that he was "fairly confident" that the practitioner would be very careful about working within his scope of practice in the future and would abide by any conditions imposed on him; and 3. advised that the practitioner is "amenable to reasonable conditions being imposed on his registration and would be happy to discuss this with you further".
The submissions advance the proposition that when considering a costs order in a re-instatement matter the well-recognised principle that costs are compensatory not punitive is not strictly relevant. Further, it is submitted that the Council's role as contradictor should not be determinative of the application.
It is further submitted that unless there is disentitling conduct the order should be that each party bears its own costs.
The submissions recite a number of decisions of the Tribunal in re-instatement cases where the Tribunal has adopted a similar approach to that in Donnelly v Health Care Complaints Commission: see Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43; Roberts v Medical Council of New South Wales [2015] NSWCATOD 35; Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102; Haber v Health Care Complaints Commission [2018] NSWCATOD 16; Ledner v Health Care Complaints Commission [2019] NSWCATOD 30; and Girgis (née Tanios) v Health Care Complaints Commission [2019] NSWCATOD 126.
The submissions conclude at pars 47 and 48 as follows: "In summary, the respondent's submissions do not acknowledge the line of authority of Donnelly and subsequent cases, based on Court of Appeal authority. It is submitted that costs orders in the circumstances of a reinstatement application should not be compensatory nor punitive. Furthermore, the respondent's argument that it is entitled to act as a statutory contradictor is not determinative. It is submitted that substantially the same factors as were considered in Donnelly apply in this case. The Tribunal would therefore exercise its discretion to make an order that each party bear its own costs, which would be the fairest and most equitable outcome, when balancing the interests of the parties in the circumstances of this case. In the alternative, if the above submission is not accepted, the Tribunal might order the applicant pay 50% of the Medical's Council's costs rather than the sum claimed."

Consideration

It is apparent to me that the well-known and uncontroversial principles relating to costs in disciplinary proceedings cannot be rigidly applied in re-instatement applications under the National Law.
I am fortified in this view first by the terms of the National Law itself. Clause 13 of Sch 5D involves a Tribunal exercising discretion when awarding costs. That discretion must be exercised judicially, that is, it must be "exercised according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion" as explained by Starke J in House v The King (1936) 55 CLR 499; [1936] HCA 40.
Secondly, while I accept that previous Tribunal decisions on this issue provide guidance, each case ultimately falls to be decided on its particular facts and circumstances.
Thirdly, as with all matters under the National Law, the objective and principle in s 3A, namely that the protection of the health and safety of the public must be the paramount consideration is relevant. This objective and guiding principle of the legislation means weight must be afforded to the Council and/or the HCCC's role as contradictor, but that role itself cannot be determinative of the application particularly when trumped by other relevant matters to be taken into consideration in the exercise of discretion.
I also accept that a relevant factor to be taken into account is the conduct which led to the cancellation of the practitioner's registration. But as the cases illustrate, often the period of time and actions taken by a practitioner, including re-education, insight and remorse since the offending conduct, will also be of particular significance.
In this case, I have taken into account and weighed a number of matters in the exercise of my discretion in determining the costs application. The Council adopted the position that the practitioner lacked sufficient insight at the time of the application to be re-instated and thus opposed his application. However, the Council's own expert, as early as in his report dated 3 December 2020, expressed the opinion that the practitioner did demonstrate insight and was unlikely to present a risk to the public in the future if re-instated with conditions. Of significance is the fact that the practitioner indicated to the Council in his solicitor's letter of 6 January 2021 that he would not oppose conditions on his registration if a re-instatement order was made and asked the Council to consider that position. However, it was only after the Tribunal, during the course of the hearing, requested the Council to do so that we were provided with draft conditions.
Further, during the hearing the practitioner made it clear that he accepted conditions should be imposed on his registration if a re-instatement order was made.
I find the factors supporting a costs order in favour of the Council, particularly its role in protecting the public as contradictor and opposing the re-instatement application, and the practitioner's earlier conduct, must be weighed and balanced against the conclusions of the expert evidence of Dr Samuels about the practitioner's insight and willingness to accept conditions on his registration. Ultimately, I find the factual matters raised by the practitioner weigh in his favour and that the appropriate order is that each party pay their own costs of the proceedings.

Orders 1. That the parties each pay their own costs of and incidental to the proceedings.

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: 14 May 2021

Chen v Medical Council of New South Wales

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