Health Care Complaints Commission v Caruana [2024] NSWCATOD 36 | Case summary

NCAT Occupational|2024-03-22

Solicitors: Health Care Complaints Commission (Applicant) Respondent (No Appearance) File Number(s): 2022/00299075

Introduction

Reasons for decision in this matter were published on 29 January 2024 (Primary Decision).
I will not repeat those reasons, but suffice it to note that for the reasons published, the Tribunal found two complaints brought by the applicant against the respondent established.
The first complaint was that the respondent had an impairment within the meaning of s 5 of the Health Practitioner Regulation National Law (NSW) (National Law) being a mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the respondent's capacity to practise the profession of dentistry.
The Tribunal found that the respondent suffers from a psychotic illness, most likely schizophrenia.
The second complaint was that that the respondent was not competent within the meaning of s 139(a) of the National Law in that he lacks the mental capacity to practise as a dentist.
Having found those complaints established, the Tribunal ordered that the practitioner's registration be cancelled, and that there be a non-review period of 3 years.

Indicative costs order

At pars [70] to [75] of the Primary Decision the Tribunal stated: Costs 70. The Tribunal has repeatedly indicated, as has the Court of Appeal, that this is a costs jurisdiction, and the ordinary rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342. 71. The Commission has been successful. The practitioner should pay the Commission's costs, as agreed or assessed. 72. Unless the practitioner files submissions setting out persuasive reasons why he should not be ordered to pay the Commission's costs, we will make that order in 14 days. 73. If the practitioner does file submissions, the Commission may reply within a further 14 days. 74, We propose to determine costs "on the papers" and without a hearing. If either party opposes that course they must address that issue in their submissions. 75. Submissions are to be limited to 5 pages.

The respondent's submissions

The respondent provided a brief submission on 26 February 2024. In an email of that date sent to the Registry, the respondent stated: I Hereby notify that I oppose payment of ordered legal fees/cost.

The applicant's submissions

It appears that the respondent did not send his submission to the applicant, as on 14 March 2024 the applicant sent an email to the Registry relevantly stating that: The Applicant has not received any costs submissions from the Respondent. Accordingly, the Applicant seeks their costs, as agreed or as assessed.

Consideration

I considered instructing the Registry to send the respondent's email to the applicant, but concluded that there was little point in having the Registry do so, as that would just lead to further delay in finalising this matter and also lead to additional expense. This would not be consistent with the guiding principle set out in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW), namely the facilitation of the just, quick and cheap resolution of the real issues in the proceedings.
In addition, it is the applicant's long-standing practice in this jurisdiction to seek its costs and I have no doubt that the respondent's one sentence submission would not cause the applicant to hesitate in seeking a costs order.
In the recent decision of Health Care Complaints Commission v Catt (No 2) [2024] NSWCATOD 28, the Tribunal adopted the following statements of principle set out in Health Care Complaints Commission v Morsingh (No 2) [2023] NSWCATOD 183 at [3]-[10]: 3 The Tribunal's power to award costs in these kinds of proceedings is set out in Clause 13 to Schedule 5 of the National Law: 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. 4 This provision gives the Tribunal a discretionary power to make a costs order: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. The discretion must be exercised on a principled and judicial basis. Costs are compensatory for the successful party in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [44]. 5 The general rule is that costs follow the "event" unless justice requires a different approach: Furber v Stacey [2005] NSWCA 242. The question as to who is the successful party "in the event" is not always straight forward. In any particular case there may be a number of events: Galati v Deans (No 3) [2018] NSWSC 1861 at [18]. Ward CJ in Eq went on at [19] to suggest a "helpful approach" to identifying the "event": As I have noted in other cases, a helpful approach to that question is that which was suggested by the English Court of Appeal in Roache v News Group Newspapers Ltd [1998] E.M.L.R. 161 at 168-169. There, the question as to who was to be seen as the successful party "in the event" was posed as being a question as to "who, as a matter of substance and reality, has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?" 6 While the event may extend to any disputed question of fact or law, the generally accepted approach is that the event is the event of the claim. The claim in this case is two complaints: that Mr Morsingh is guilty of unsatisfactory professional conduct and that he is guilty of professional misconduct. Generally, a successful party should be awarded the whole costs of the proceedings, including the costs relating to issues on which it has failed: Windsurfing International Inc v Petit (1987) AIPC 90-441 at 37,861-37,862. 7 However, where a successful party has failed on issues of substance, especially where those issues have taken a substantial proportion of the hearing time, the Tribunal may depart from the general rule: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [31] - [36]. … 10 The onus is on the unsuccessful party to satisfy the Tribunal that it should not apply the general rule that costs follow the "event": Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]. (emphasis added)
Putting aside the fact that the respondent filed his submissions late, he has not provided any reason in principle or in practice why the Tribunal should not apply "the general rule" that costs follow the event. The applicant was entirely successful in establishing all complaints pursued, and the respondent has not submitted, let alone established, that there was any conduct of the applicant which might cause the Tribunal to make any order other than the applicant being awarded its costs.
It follows that the Tribunal will order the respondent to pay the applicant's costs as agreed or as assessed.

Other

In the Primary Decision, the Tribunal stated that it proposed to deal with costs "on the papers" and without a hearing. I note that in Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 the Appeal Panel stated at [85] that: [i]t is the experience of the Appeal Panel that costs decisions in the Consumer and Commercial Division and on appeal (unless dealt with at the time of the hearing) are routinely considered "on the papers", and without a hearing. The parties were given an opportunity to provide written submissions and did so. They can be presumed to have included all relevant issues in their written submissions.
That principle equally applies in decisions in the Occupational Division.
Neither party opposed me determining costs on the papers. As I am satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submissions, I dispense with a hearing: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2).

Orders

The Tribunal orders: 1. A hearing is dispensed with. 2. The respondent is to pay 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: 22 March 2024

Health Care Complaints Commission v Caruana

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Judgment (9 paragraphs)

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Cases Cited (8)