Health Care Complaints Commission v Ang

NCAT Occupational|2022-12-05

Introduction

The following reasons assume an understanding of, and employs definitions used in, the reasons for decision published on 19 October 2022, Health Care Complaints Commission v Ang [2022] NSWCATOD 121 (Primary Decision).
In the Primary Decision, the Tribunal found the practitioner guilty of unsatisfactory professional conduct and professional misconduct under National Law, cancelled his registration and ordered that he may not apply for a re-instatement order for a period of 18 months.
Directions were given for the filing of submissions as to costs.
The practitioner sought a reduction of 25% to the usual rule that the Commission, being successful in its application, was entitled to its costs as agreed or as assessed.
For the following reasons, I consider the appropriate reduction to be 10%. In other words, the practitioner must pay 90% of the Commission's costs as agreed or as assessed.

Preliminary issue

In the directions given in the Primary Decision, the Tribunal proposed that any costs determination be determined on the papers and without a hearing.
Neither party opposed that course.
In the circumstances, as I am satisfied that I can determine the issue of costs based on the submissions filed by both parties, pursuant to s 50(2) of the NCAT Act, I dispense with a hearing.

Background

I do not propose to set out the Particulars to the Two Complaints. These are set out in the Primary Decision. Suffice it to say, Complaint One (unsatisfactory professional conduct) comprised 12 Particulars.
The Tribunal found Particulars 1(a) to (h); 2(a), (b), (d) and (e); 4(b); 5(a) and (b); 8; 9; 10(a) and (b) 11(a) and (b) and 12 established.
To put the matter another way, the Tribunal did not find Particulars 2(c), 6, 7 and 11(c) established:
Particular 4(a) was withdrawn. The respondent appears to have included this one of the five Particulars he submits he defended successfully. I would not characterise a withdrawn Particular as a successful defence of a claim, and I place no weight on that Particular in determining this costs application.

Commission's submission in chief

In summary, the Commission seeks a costs order (citations generally omitted) as: 1. the NSW Court of Appeal has affirmed that costs are awarded to compensate the successful party and accepted that as a general rule, costs of proceedings before the Tribunal should follow the event; 2. the Commission is the successful party because: 1. the subject matter of the Amended Complaint was proven; 2. the Commission alleged unsatisfactory professional conduct and professional misconduct and the Tribunal found both unsatisfactory professional conduct and professional misconduct was proven; 3. the Commission sought cancellation (with a 1 to 3 year non-review period) and the Tribunal cancelled the respondent's registration (with an 18 month non-review period). 1. to the extent that some Particulars were not proven, the Commission is still the successful party because: 1. failure to establish some allegations does not necessarily result in any diminution in the costs payable to the Commission because costs are not to be assessed by a numerical calculation of the parts of the complaint which were upheld and the parts which were rejected: Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [50]; 2. the bulk of the particulars, including serious failings on multiple occasions over lengthy periods, were proven; 3. the Tribunal was satisfied that the practitioner had engaged in several instances of unsatisfactory professional conduct regarding various aspects of poor dispensing, poor record keeping and poor storage which, considered cumulatively, amounted to professional misconduct; 4. the Tribunal found that the totality of the proven conduct was objectively of such a serious nature that the only appropriate order was cancellation.

Practitioner's submissions in response

The practitioner relevantly submitted: 5 As stated above, the Tribunal has an unfettered discretion to vary costs. It is accepted ordinarily costs follow the event. In this matter there is proven hardship and exceptional circumstances due to the recent death of the [practitioner's] wife on 25th January 2022. He remains the sole carer and breadwinner for two adolescent children aged 13 and 15. 6 The [practitioner] is required to pay the costs personally. There is no medical indemnity insurance coverage for costs. 7 The [Commission] sought up to 3 years cancellation of registration and 18 months was imposed by the Tribunal. The additional imposition of 18 months until he can apply for re-instatement from 19 October 2022, will mean the [practitioner] has not had a right to practice as a pharmacist since 2nd October 2019 and will be precluded until at least 19 April 2024 from even applying for re-instatment, [sic - re-instatement] which is 4 years, 6 months and 17 days. It may be 5 years or more out of practice until he gets his right to practice back. 8 The [practitioner] is also required to pay for staff to run his practice during the cancellation period and any additional period it takes to regain his right to practice. He also gave evidence during the hearing that there was a significant downturn in his earnings from his pharmacy during the Covid 19 pandemic. 9 The [Commission] was successful for 16 particulars and the respondent defended 5 particulars successfully. It is submitted that in these circumstances, noting the unfettered discretion of this Tribunal, that it would be reasonable, due to his part success at the hearing, and the hardship that a costs order will impose upon him, for a 25% reduction in costs payable to the applicant to be made.

Commission's submission in reply

In reply, the Commission relevantly submitted (again, citations generally omitted): 1. it is the successful party and there was no disentitling conduct by the Commission to warrant a departure from the general rule that costs follow the event; 2. there are several examples where the Tribunal, although not all particulars were found proven, exercised its discretion to order the practitioner to pay the Commission's costs; 3. costs should not be reduced on the alleged basis that the practitioner was unable to work as a pharmacist during his previous suspension period; 4. costs should not be reduced on the alleged basis that the practitioner will be unable to work as a pharmacist during the non-review period; and 5. in any event, the Court of Appeal has confirmed that mere impecuniosity is not a justifiable reason for departing from the general rule that costs of proceedings before the Tribunal should follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].
The Commission acknowledges that in Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [49]-[51], the Court of Appeal departed from the general rule due to three militating factors which applied in that case: 1. a failure to establish professional misconduct; 2. a failure to establish each of the particulars pleaded; 3. where there was criticism of how the complaint was pleaded.
The Commission submits that neither the first or third matters, have any relevance in the present application.
As to the second factor, the Commission submits that the Court of Appeal stated: This aspect is not to be assessed by a numerical calculation of the number of paragraphs of the particulars which were upheld and the number which were rejected. Nor would failure to establish some particulars necessarily result in any diminution in the costs payable to the Commission. However, where it can be said that discrete elements of the conduct complained of were not established, it may be appropriate to reduce the costs to be recovered by the Commission. (Emphasis added)

Relevant Principles

As the Tribunal stated in Health Care Complaints Commission v Gahan (No 2) [2021] NSWCATOD 66, the applicable legal principles relating to the award of costs in this jurisdiction include the following: 1. the Tribunal has a discretion to order any party to pay costs to another person: Sch 5D, cl 13 of the National Law; 2. the question of costs is discretionary, the discretion being a judicial one which must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion: Philipiah at [43]; 3. costs are intended to compensate a successful party; costs are not intended to penalise an unsuccessful party: Philipiah at [44]; 4. 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: Philipiah at [44]; 5. mere impecuniosity is not a justifiable reason for departing from the general rule: Philipiah at [42]; 6. as a general rule, in this jurisdiction costs of proceedings before the Tribunal should follow the event: Philipiah at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87]; 7. there may be factors that might militate against the recovery by the successful party of all of its costs in particular proceedings. This includes where the Commission failed to establish all of the particulars of professional misconduct alleged: Philipiah at [42]; 8. a court or tribunal may deprive the successful party of the costs relating to an issue on which the successful party lost when that issue was clearly dominant or separable: Monie v Commonwealth of Australia (No.2) [2008] NSWCA 15 at [64].
In Gahan No 2 the Tribunal further noted that that last principle was the subject of discussion by the Tribunal in Health Care Complaints Commission v Emery (No. 2) [2017] NSWCATOD 23 at [11] to [19]. In summary: 1. unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed; 2. exercising the discretion as to costs on an issue-by-issue basis can produce complexity and disputation; in determining the proper costs, the appropriate approach is a broad-brush approach: Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club v Turner [2016] NSWCA 369 at [72]; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [18] to [19].

Consideration

The Tribunal did not find Particulars 2(c), 6, 7 and 11(c) established.
Particular 2(c) was that on the occasions listed on Schedule 3 to the Amended Complaint, the practitioner dispensed 100mcg Durogesic (Fentanyl) patches, a Schedule 8 drug of addiction, to Patient D from some prescriptions which appeared to have been forged or fraudulently obtained, contrary to cl 86(1)(f) of the PTGR.
The Tribunal's consideration of this Particular is set out at pars [81] to [88] of the Primary Decision.
Particular 6 was that on 26 July 2019, the practitioner dispensed ten 100mcg Durogesic (Fentanyl) patches, a Schedule 8 drug of addiction, to Patient E, in circumstances where the prescription appeared to have been forged or fraudulently obtained, contrary to cl 86(1)(f) of the PTGR.
The Tribunal's consideration of this Particular is set out at pars [118] to [124] of the Primary Decision.
Particular 7 was that on 26 July 2019, the practitioner dispensed ten 100mcg Durogesic (Fentanyl) patches, a Schedule 8 drug of addiction, to Patient E, in circumstances where the prescription appeared to have been forged or fraudulently obtained, contrary to cl 86(1)(f) of the PTGR.
The Tribunal's consideration of this Particular is set out at pars [125] to [135] of the Primary Decision.
Particular 11(c) was that on 11 September 2019, the practitioner failed to appropriately store Schedule 8 medications as required by cl 76 of the PTGR in circumstances where 2400 Endone tablets, 105 0.4mg Subutex tablets and 35 30mg Oxycontin tablets were stored in a safe with a removable door;
The Tribunal's consideration of this Particular is set out at pars [154] to [158] of the Primary Decision.
Particular 2(c), 6 and 7 all relate to prescriptions which were allegedly forged or fraudulently obtained. In the Tribunal's view, these matters are separable to other matters raised in the complaint. There was cross examination, oral submissions, written submissions and finally Tribunal consideration of each of these Particulars. In my view, given the Commission's lack of success in these matters, a differential costs order is warranted as these matters are sufficiently separable from other matters considered by the Tribunal.
The same can be said for Particular 11(c), which was a "stand alone" particular, although to a lesser degree,.
I am satisfied that in combination these Particulars are sufficiently separable as to warrant the Tribunal depriving the Commission its costs in relation to those issues: Monie.
I place no weight on the respondent's submissions which go to his personal family circumstances, the fact he has to pay the costs personally, the costs of maintaining the pharmacies, that he has already been suspended since 2 October 2019 and that there has been significant downturn in his earnings from his pharmacy during the Covid 19 pandemic. Consistent with the authorities referred to above these are not relevant matters.
In my view the 25% reduction sought by the respondent is too high. This is principally because, three of the four particulars where the applicant was unsuccessful, related to prescriptions which were allegedly forged or fraudulently obtained.
Applying the "broad-brush approach" approved in Harrington Estates and Doppstadt, in my view the appropriate reduction is 10%.

Orders

The Tribunal orders: 1. A hearing is dispensed with. 2. The respondent is to pay 90% of the applicant's costs as agreed or as assessed.

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: 05 December 2022

At a glance

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Decision date

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Judgment (10 paragraphs)

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Legislation Cited (1)

Cases Cited (9)