DYB v Medical Board of Australia

Costs provisions in the National Law

1. Clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) (the National Law) provides the Tribunal hearing proceedings under the National Law may make a costs order. The clause 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. (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.
2. This application is an ancillary application. I may determine this application as a single member (see s 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) and s 165B (5A) of the National Law).

Principles relating to costs in disciplinary proceedings under the National Law

1. The principles relevant to making an award of costs are clear. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Emmett JA, with whom Meagher JA and Beech-Jones J agreed, held: 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). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.
2. Also relevant are the comments of Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]-[52] and in Qasim v Health Care Complaints Commission [2015] NSWCA 282 where his Honour explained: In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]- [48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".)

Dr DYB's submissions

1. It is unnecessary in dealing with this application that I repeat in any detail Dr DYB's submissions. The general thrust of the submissions is that it was necessary for her to bring her appeals because the conditions imposed by the Board did not permit her to engage in clinical practice at all. Dr DYB asserts that Board's case was "frivolous". She further submits: The original decision (of the Board) that I was not safe to practice clinically in any capacity was not backed by evidence and therefore not made according to normal administrative decision-making standards or with any regard to procedural fairness.
2. Dr DYB asserts that the Board by not undertaking "other reviews" had "imposed on me the need to pursue the entire appeal at great personal cost in order to have any chance of achieving a decision regarding my medical registration that was based on evidence".

The Medical Board of Australia's submissions

1. Ms K Richardson, senior counsel for the Board, provided written submissions on 6 March 2020.
2. At para 2 of her submissions, Ms Richardson notes that the Board was entitled to seek costs against Dr DYB in relation to the multiple appeals she brought in the Tribunal "as it achieved success in those proceedings". Ms Richardson goes on to record correctly that "Nevertheless, on 6 November 2019, the Board indicated to Dr DYB (and the Tribunal) that it would not seek an order for costs".
3. After noting that Dr DYB in her present application seeks payment of various disbursements, the submissions refer to a number of matters raised by Dr DYB which it is asserted are not relevant to costs, and are not addressed.
4. Ms Richardson, by reference to authority, notes the general rule in the Tribunal that "costs follow the event". I infer this reference is to proceedings heard under enabling legislation, namely the National Law, not under the CAT Act.
5. The submissions point out, correctly, that Dr DYB's position throughout the hearing was that: 1. she did not suffer from an impairment under the National Law; and 2. that she should be granted unconditional registration. The submissions go on to note the Board's position in respect of the appeals, namely, that Dr DYB did suffer an "impairment" as defined under the National Law. Consequently, the Board submitted that she should either be refused registration or otherwise her registration must be subject to conditions, but that she should not be granted unconditional registration.
6. It is useful that I reproduce paras 8 and 9 of Ms Richardson's submissions as the contents of those paragraphs go to the heart of this application. Ms Richardson submits (footnotes omitted and original emphasis) : Thus, the "event" is that the Board had success. The Tribunal found that Dr DYB does suffer from an impairment under the National Law and that her registration should be subject of conditions. As such, the Board achieved an outcome that it had sought and the Tribunal rejected the outcome that Dr DYB had sought. It follows that if any party is entitled to a costs order, it is the Board. However, having regard to the circumstances of the appeals filed by Dr DYB, the Board decided not to seek an order for costs in its favour. This is a simple costs matter, the appellant Dr DYB was not successful in her appeals to the Tribunal to achieve unconditional registration and therefore is not entitled to a costs order of any kind (including an order in relation to disbursements). Dr DYB's application for a costs order ought to be dismissed.

Consideration

1. It is important that I refer to Dr DYB's firmly held positions in respect of the appeals. She asserted at all times that it was not open to the Tribunal to find she was "impaired" as defined in the National Law. She further maintained that she did not present a risk to the public and should be entitled to general registration. She was not successful in achieving the outcome she sought on these primary issues in the appeals.
2. I accept that the Tribunal did permit Dr DYB to engage in clinical practice but subject to strict supervision conditions. However, she was not "successful" in the outcome she sought in her appeals.
3. The authorities are clear that costs should not be apportioned on an "issue" basis (see Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280 per Brereton J, as his Honour then was). Thus, it is not appropriate to apportion some part of the disbursements incurred on the basis that Dr DYB was successful in that she was permitted to engage in clinical practice, subject to conditions, but failed in her overall application for general registration.
4. I find merit in the submissions of Ms Richardson and I adopt her submissions.

ORDERS 1. Dr DYB's application for costs is dismissed.

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: 27 March 2020