In these proceedings the appellant, Dr Brian Crickitt, appealed to the Tribunal against the suspension of his registration as a medical practitioner imposed by delegates of the respondent, the Medical Council of New South Wales following upon a charge of murder laid against the appellant arising out of the death of his then wife. In essence, the delegates of the respondent determined that it was in the public interest that the appellant, having been charged with the serious crime of murder, have his registration suspended pending the outcome of the police proceedings. We ultimately determined that the appellant's registration should remain suspended, but for reasons which differed from those adopted by the delegates. After the appeal proceedings had come before us, and after the respondent had closed its case, new evidence became available to the respondent which we determined to admit and to consider for the purpose of determining the appeal proceedings. At the same time we determined that we would reject an application of an interlocutory kind brought by the appellant that we should either cease dealing with the matter or remit it back to the delegates for further consideration.
A much more detailed account of the history of the proceedings and our reasoning in determining the interlocutory application may be found in Crickitt v Medical Council of New South Wales [2015] NSWCATOD 86. After admission of the new evidence, and with the benefit of submissions from the parties, we determined to continue to suspend the registration of the appellant by reason of certain matters arising out of and related to his practice of medicine. Our reasons for decision are fully set out in in Crickitt v Medical Council of New South Wales (No 2) [2015] NSWCATOD 115. It will be seen that we determined to limit the period of suspension to six months in order to enable the respondent to pursue any formal complaint against the appellant. In essence, the power to suspend under section 150 of the Health Practitioner Regulation National Law is a temporary protective measure pending the formulation and prosecution of a formal complaint against a health practitioner. We did not apprehend that any such complaint had yet been initiated.
In Crickitt (No. 2), we reserved the question of costs and granted liberty to apply, which has now been exercised by the respondent. In essence, the respondent has argued that it was essentially successful in the appeal because the suspension has been continued, albeit for a limited period. On this basis it was said that "the Respondent should be compensated for the costs incurred in so acting to protect the public interest and the health and safety of any person or persons."
The appellant resisted the making of any costs order against him on two bases. The first was that because a time limitation had been imposed on the suspension in lieu of suspension for an indefinite period, the appellant had had partial success in the appeal proceedings. The second was that the nature and substance of the proceedings had altered dramatically after the new evidence had been admitted, and there was a substantially different basis upon which suspension was ultimately sought by the respondent.
[2]
Relevant Principles
It is unnecessary for us to elaborate on two fundamental propositions, namely that this Tribunal has a discretion to order costs, and that in ordinary circumstances, costs should follow the event. It is also well established that the exercise of the discretion to award costs may reflect special or particular circumstances pertaining to the proceedings. A number of decisions of this Tribunal were cited by the parties in reliance upon their respective positions, but apart from affirming the general principles which we have outlined above, each needs to be considered on the basis of the particular circumstances applying in each of the proceedings.
It is necessary, however, to refer to one decision which was relied upon in particular by the respondent, Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53. In those proceedings, delegates of the respondent Council had suspended the appellant's registration indefinitely. The appellant sought a lifting of the suspension. The Tribunal on appeal determined that the suspension should continue but for a limited period of one year to enable the Council to pursue a number of complaints against the appellant. The Tribunal refused to make any costs order, and it seems from the reasons for decision, that a motivating factor was that the Council had not sought any time limitation on the suspension. The respondent submitted that as the decision is not binding on the Tribunal as currently constituted, it should be confined to its own facts. The appellant relied on a principle of comity, and submitted that the facts were relevantly indistinguishable.
We respectfully decline to apply the decision in Saedlonia, and the presumed basis for the reasoning adopted. In essence, the appellant in those proceedings sought that his suspension be lifted. In the result, he failed, albeit that the suspension was modified so that it applied for a period of one year only. Because of the nature of the power to suspend under section 150, which we have earlier briefly referred to, and because it is intended to be an interim measure effected on an emergency basis pending an investigation into, and a formulation of any relevant complaints, it is appropriate that a time limitation of some kind be imposed. Nevertheless, the fact of suspension as a protective measure in the public interest represents the gravamen of the remedy imposed by the delegates of the Council and upheld by the Tribunal on appeal. In these circumstances, it might be postulated that the respondent was substantially successful in the appeal proceedings, and that a costs order in some form should follow.
It follows, that in the circumstances of these proceedings, it cannot be said that the appellant was substantially successful, or that in some way the respondent failed to make out its case.
However, there are circumstances which are particular to these proceedings which cause us to modify the "usual order" that costs follow the event. Firstly, the respondent changed the nature and extent of its case in a substantial way after the new evidence had been adduced after the close of the case which it originally advanced. In its original manifestation, the respondent's case was one which supported totally the reasoning and conclusions of the delegates. Our ultimate decision was based on different information and evidence and involved different reasoning. There is no reason why the appellant should be burdened with costs thrown away because of the substantial change in the nature and basis of the respondent's case. As against this, some considerable time was taken up by the appellant in pursuing the interlocutory application, which we have earlier briefly described. The appellant was totally unsuccessful in this application, and the respondent should not be burdened by the costs incurred in dealing with it.
It is inappropriate, in our opinion, to endeavour to undertake some mathematical calculation of the costs which flow from both of the circumstances described above, in the context that the respondent has been ultimately substantially successful in resisting the appeal proceedings. In all the circumstances, having regard to the failure of the appellant to have a suspension set aside, the fact that the suspension imposed by us is, however, for a limited period, but taking into account both of the factors described in [9] above, we are of the opinion that an appropriate order is that the appellant pay 55% of the respondent's costs, and that there be no costs payable with respect to the exercise of the liberty to apply with respect to costs.
[3]
Order
The appellant is to pay 55% of the respondent's costs of the proceedings, save that no costs are payable by either party to the other with respect to and arising out of the exercise of the liberty to apply for costs previously granted.
[4]
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
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Decision last updated: 14 December 2015