Costs
49In his written submissions to us, Mr Crane stated, in terms, that should his client be successful: "then the general rule espoused by the Court of Appeal in HCCC v Philipiah [2013] NSWCA 342 should apply and that compensatory principle should apply and costs should follow the event and I request on order that the HCCC pay the Applicant's costs, which costs I would suggest could be set off against the unassessed costs that the Applicant presently owes the HCCC". On the other hand Mr Griffin submitted that the position developed at the Medical Tribunal was that in cases in which a deregistered doctor sought reregistration, the NSW Medical Board would appear in the case as a contradictor and the applicant for reregistration would be ordered to pay the Medical Board's costs even when the applicant succeeded in obtaining reregistration.
50In support of his submission, he referred us to Kazmierczak v NSW Medical Board (unreported, NSW Medical Tribunal, 6 May 2010) and Litchfield v Medical Council of New South Wales [2012] NSWMT 8, a case in which Dr Litchfield succeeded in obtaining reregistration, but was ordered to pay the Medical Council's costs, without any discussion of the matter. However, in Kazmierczak v NSW Medical Board the Medical Tribunal stated at [54]:
The other aspect that we need to deal with is the question of costs. The view that we have reached is that although the applicant has been successful, the fact is that it was entirely appropriate for the Medical Board to oppose his application. The Medical Board in such applications plays a highly significant part on behalf of the public and the medical profession in putting applicants to the test and in ensuring that their background or at least their character is properly ventilated: that no applicant is reregistered without a sufficient investigation into what they have done since the deregistration. Sometimes the Board needs to be in a position to raise matters which could have been raised but which perhaps for good reason were not raised at the earlier hearing. Because it is entirely appropriate for the application to have been opposed and because it was in effect the applicant's conduct which has brought about this application in any event, he should pay the costs of the application.
51Mr Griffin submitted that this was the role the HCCC played in relation to applications for reregistration by psychologists and nurses and midwives at least and so that NCAT had a consistent approach to this matter, we should follow the same approach.
52Unfortunately, the matter is not as straight forward as that. Recently in HCCC v Philipiah [2013] NSWCA 342 the Court of Appeal applied the compensatory principle, namely that costs were awarded to compensate the successful party and not to penalise the unsuccessful party. The Court of Appeal did so in order to overturn the decision of the then NSW Medical Tribunal not to award costs to the HCCC. However Emmett JA, who gave the leading judgment, also noted that the award of cost was a discretionary matter that was subject to principle, he continued: "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". In making that comment, Emmett JA relied upon a statement in a 1974 case in the NSW Supreme Court which in turn relied upon a statement made in the English Court of Appeal in 1920. However neither of those cases was dealing with circumstances like those facing us.
53As it was a suitable time to adjourn, the tribunal provided time for Mr Crane to find cases to support his argument for a costs order in favour of his client or otherwise relevant to counteract the submissions of the HCCC. Upon the resumption of the proceedings, Mr Crane advised that he had not been successful in finding any cases of assistance, but he submitted that it was open to us to make an order that each party bear their own costs. Mr Griffin advised that searches undertaken on behalf of the HCCC from 2010 onwards found no authorities of assistance.
54However a review of the cases from health professions tribunals in NSW from 2010 until their incorporation into NCAT upon its establishment on 1 January 2014 does reveal some cases of relevance and that the Court of Appeal has also had something to say on the matter. We will return to these cases; but before doing that we note that the statutory authority for NCAT to make costs orders in health professions cases is found in Sch 5D, cl 13 of the National Law. That clause gives NCAT a discretion to order any party or person entitled to appear in any inquiry or appeal to pay costs to another person. This is a wide discretion as to the awarding of costs but it has to be exercised according to principles that are not easy to state as Emmett JA has noted.
55There seem to us to be 3 possible approaches in this case that could be based on principles articulated elsewhere. First the compensatory principle applied in HCCC v Philipiah. Under that principle Dr Donnelly would be awarded costs as the successful party. However, the compensatory principle is designed for cases involving disputes between parties that are brought to the courts for resolution and where it has long been the position that costs follow the cause, unless the successful party has acted in ways that disentitles it from some or all of its costs. Nevertheless, the compensatory principle is applied in the health professions jurisdiction in relation to Complaints or similar matters being proven against health practitioners where the complainant or applicant is the HCCC or the Council of a health profession. For an example see NSW Medical Board v Dinaker [2009] NSWMT 9 at [134]-[136].
56However that principle is not necessarily apposite to reinstatement cases. In those cases it has been the prior criminal actions, professional misconduct, professional incompetence or other actions rendering them not a suitable person to be registered to practise a particular health profession that has caused the need for the application for a reinstatement order. It is appropriate that at the inquiry triggered by the application for a reinstatement order that there be a contradictor to test the applicant's evidence, bring evidence itself in cases where that is appropriate or is effectively required by s 163C(3) of the National Law and to assist NCAT with submissions about relevant matters. This provides procedural fairness to the applicant first by ensuring that he or she knows what matters they have to deal with beyond those that they wish to put in support of their application. It also avoids NCAT having to pursue relevant matters unwelcome to the applicant directly with the applicant leading to possible apprehensions of bias on the part of the applicant and ensures transparency during the inquiry process.
57These considerations, and possibly others, give the basis for not awarding costs to an applicant and against the contradictor where the applicant succeeds in obtaining a reinstatement order from NCAT.
58On the other hand it does not necessarily follow that in addition to bearing his or her own costs an applicant should also pay the costs of the contradictor as another expense to be incurred in the process of seeking to return to a health profession from which they have been ejected by cancellation of their registration. That appears to have arisen out of a practice at the NSW Medical Tribunal.
59In Scully v HCCC [2013] NSWNMT 7, a case in which a deregistered nurse obtained a reinstatement order, the HCCC nevertheless sought an order that the reinstated nurse pay its costs. The HCCC did not base its submission for costs on Kazmierczak v NSW Medical Board, but on NSW Medical Board v Dinaker. The then Nursing and Midwifery Tribunal made an order that each party pay their own costs. Its reasons for doing so were summed up in paragraphs [135] and [136] of its reasons for decision as follows:
Here the HCCC opposed at all times the applicant's re-instatement application, and only provided draft conditions on the specific request of the Tribunal following completion of the hearing. Further, a sitting day was lost by reason of the failure of the HCCC to be able to prove service of the documents on which it relied on the applicant, and which it appears were not served in the time provided in the orders made at the Directions Hearing.
Balancing all relevant considerations we are satisfied in the circumstances of this case that the appropriate order is that each party pay their own costs of and incidental to the application. We note that it is unlikely that the applicant, who has at all times been unrepresented, has incurred any legal costs.
60In Flynn v HCCC [2011] NSWNMT 6, the then Nursing and Midwifery Tribunal made a reinstatement order in relation to a deregistered nurse, subject to substantial conditions. Nevertheless, counsel for the HCCC submitted that each party pay their own costs. In giving its reasons for making that order the tribunal stated at paragraph [55]:
The Tribunal accepted [counsel for the HCCC's] submission that each party pay their own costs. There was no basis put forward in this case to justify Mr Flynn paying the costs of the HCCC related to its role in this application.
61In Coe v HCCC [2013] NSWNMT 12, the then Nursing and Midwifery Tribunal granted Ms Coe's application and removed a number of conditions imposed on her registration as a nurse. Ms Coe was represented by the Nurses and Midwives' Association which submitted on her behalf that if Ms Coe were successful with her application the "usual" or "traditional" rule should apply and that and order for costs should be made in her favour. In other words the compensatory principle should be applied in the awarding of costs in that matter. On the other hand, counsel for the HCCC argued that because of its position as a neutral contradictor, the HCCC should be awarded costs (to be paid by Ms Coe). Counsel for the HCCC relied on 2 reinstatement cases in which the deregistered nurses were unsuccessful in their applications to return to nursing - see paragraphs [69] to [71]. The solicitor for Ms Coe subsequently amended her submission to a request for an order that each party bear their own costs. The tribunal then continued at paragraphs [72] to [74] as follows:
Without determining any general principle or guideline in respect of the HCCC having an entitlement to costs as a neutral contradictor, this Tribunal can envisage circumstances where such an order may be appropriate when the Tribunal exercises the discretion reposed in it by the statute. But we do not find this is such a case. The applicant has been successful in her application which was necessary to correct the register in respect of conditions 3, 4 and 5. We note the HCCC did not formally concede these conditions should be removed until during the hearing. She has also been successful in respect of condition 1. Significantly, her success in respect of this condition relied on the expert report of Dr Hinton whose evidence was not challenged in any respect by the HCCC. Further, no new, or contradicting, evidence was put before the Tribunal by the HCCC, and cross-examination of the applicant was appropriately extremely confined.
Weighing these matters up, as we must in the exercise of our discretion, the Tribunal is satisfied that relevant factors are closely balanced.
Ms Alexander's changed position in respect of costs is, we find, an appropriate one. It encompasses the technical omissions in the applicant's case drawn to the Association's attention by the HCCC, while recognising the applicant's overall success. Thus we are satisfied there is no justification in this case for either party obtaining a costs order in their favour, and the appropriate order is that each party pay their own costs of and incidental to the proceedings.
62In Draper v Psychology Board of Australia [2013] NSWPST 3 the then NSW Psychologists Tribunal considered Ms Draper's appeal against the decision of the Psychology Board to refuse her endorsement as a clinical psychologist and determined to confirm the Board's decision and dismiss the appeal. On the question of costs, the unsuccessful applicant stated that she had to prosecute a number of matters for which there was little or no precedent and other matters involving expense including dealing with arguments that HCCC raised and then abandoned. The HCCC relied on being the contradictor in the proceedings in the public interest.
63The tribunal ordered that the parties pay their own costs. The tribunal's reasons for doing so were put briefly as follows at paragraph [114]:
There is merit in the arguments advanced by both Ms Draper and the Board and the Tribunal is satisfied, in the particular circumstances of this case, that it is appropriate that the parties pay their own costs.
64The NSW Court of Appeal gave its decision in September 2014 in a case, Health Care Complaints Commission v Do [2014] NSWCA 307, in which the HCCC appealed against an order made in 2013 by the then NSW Medical Tribunal. The Court of Appeal allowed the appeal, set aside the tribunal's orders and, in their place, made the orders which the HCCC had sought before the tribunal. Nevertheless, the Court of Appeal made no order as to the costs of the appeal. Basten, Meagher and Emmett JJA heard the appeal. Meagher JA gave a judgment with which his colleagues agreed. As the successful party, the HCCC sought its costs from the former doctor who had had his name removed from the register. Meagher JA dealt with the issue of costs in paragraphs [51] to [54] 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. There are, however, factors which suggest a different conclusion in the present case. First, as noted above, although the Commission is entitled to the order it sought, it may be doubted whether, in practical terms, the consequences for Dr Do are more severe than the order made by the Tribunal. Secondly, although Dr Do filed a written submission in opposition to the appeal, that submission did not give rise to the need for the present hearing which is likely to have been necessary in any case, even in the absence of formal opposition, given the nature of the jurisdiction and the order sought.
Thirdly, in its argument to this Court the Commission emphasised that a reason for its seeking a disqualification order, rather than the orders made by the Tribunal, was that the respondent would have to apply for a reinstatement order should she wish to recommence the practice of medicine. As I have already observed, that is not the effect of ss 163A and 163B. In my view some allowance should be made in the order relating to the payment of the costs of the appeal for the fact that the Commission apparently laboured under this wrong view of the operation of the law.
Taking these matters into account, the appropriate course is to make no order as to the costs of the appeal.
65We appreciate that Health Care Complaints Commission v Do was a case in which the HCCC was the appellant not a contradictor. However, it shows the compensatory principle being dissipated by a number of disparate considerations including the view that the orders sought and obtained by the HCCC had, in practical terms, no more severe consequences for Dr Do than the order appealed against, that although Dr Do filed a written submission in opposition to the appeal, that submission did not give rise to the need for the appeal hearing which was likely to have been necessary in any case, even in the absence of formal opposition, and further some allowance should be made in in the costs order because the HCCC; "apparently laboured under this wrong view of the operation of the law". (It should be noted that the loophole Mr Do took advantage of has now been closed - see s 149E of the National Law.) However, the case shows how flexible the applicable "principles" are and that the unfettered nature of the discretion in relation to costs is perhaps the primary principle. In any event this review of the cases shows the regularity in which decisions were made by the former health professions tribunals not to award costs to parties so that each party had to bear its own costs. This was the case when parties, particularly the HCCC, sought costs orders in its favour and sometimes when it didn't seek such an order. Now we have a similar watering down of the compensatory principle in circumstances in which the fact that the use of the jurisdiction was unavoidable was used as an argument by the NSW Court of Appeal for not awarding costs to any parties to a health professions matter.
66In determining what to do about costs in this case, we note that neither the HCCC nor the successful applicant, Dr Donnelly, have done anything in the way they conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour. We also note that Dr Donnelly had no choice but to make the application to NCAT that he did make if he wished to obtain reregistration as a psychologist. Similarly such an application generates a role as contradictor for the HCCC. To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case. Consequently we declined to exercise our discretion to make a costs order under cl 13 of Sch 5D of the National Law. As a result the parties will bear their own costs in relation to this application.