(1) The Tribunal may order the complainant, if any, the registered medical practitioner concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at any inquiry or appeal before the Tribunal to pay such costs to such person as the Tribunal may determine.
(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 is to enter judgment for the amount unpaid together with any fees paid for filing the certificate.
9 The ordinary principles applying in a court apply to the exercise of power to award costs under cl 13: see NSW Medical Board v Dinakar [2009] NSWMT 8 at [40] - [45] referring to Oshlack v Richmond River Council (1998) 193 CLR 72 and Ohn v Walton (1995) 36 NSWLR 77; Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362. The applicable principle is, therefore, that costs follow the event unless the circumstances of the case require the exercise of a discretion to make a different order.
Submissions of the parties
10 Mr P Blacket SC, who appeared for Mr Chowdhury, submitted that Mr Chowdhury should not have to pay two sets of costs in respect of the second complaint in circumstances where firstly, he succeeded in the Court of Appeal in respect of the second complaint. Secondly, the case subsequently brought by the HCCC in respect of the second complaint was different to that brought and heard in 2009, and thirdly, the orders sought were materially different to those sought during the hearing in September 2010.
11 Senior counsel contended that there could be no dispute that at the initial hearing of the second complaint, the HCCC sought a reprimand and a fine. When the appeal in respect of the second complaint was heard in the Court of Appeal and subsequently reheard by the Tribunal, the HCCC changed its case and sought orders for continued deregistration and protective orders.
12 This, so it was submitted by senior counsel, effectively meant that in respect of the hearing before the Tribunal of the second complaint in February 2009, apart from the fact that the HCCC was not successful, the change of position by the HCCC should be treated as if it had amended a pleading which would ordinarily require the party seeking the amendment to pay the costs.
13 Senior counsel submitted that there could be no suggestion of disentitling conduct in this matter. We agree with this submission.
14 The HCCC was successful in prosecuting Mr Chowdhury in relation to the second complaint heard by the Tribunal in 2009. It submitted that a finding of professional misconduct should be made and such findings were made. These findings were set aside because of an error of law identified in the conduct of the Tribunal and its reasons for decision.
15 The conduct of the HCCC was not in issue and it conceded the errors made by the Tribunal in the Court of Appeal.
16 Ms G Furness SC, who appeared for the HCCC, rejected the submission of the respondent that the HCCC effectively re-litigated the whole of the second complaint and that it changed its case. Senior counsel observed that the matter was remitted by the Court of Appeal and thus by virtue of that order, a hearing was necessary to determine whether Mr Chowdhury's admitted conduct amounted to professional misconduct or unsatisfactory professional conduct and for the Tribunal to then determine the appropriate penalty.
17 Senior counsel submitted that the case was precisely the same, the particulars were the same, the findings sought were the same and the penalty sought before the Court of Appeal was the same.
18 The HCCC argued before the Court of Appeal that in addition to the question of penalty being remitted, the question of whether the conduct should be characterised as professional misconduct or unsatisfactory professional conduct should also be remitted. It also submitted that, in the event of the Court of Appeal proceeding to determine penalty, an order that Mr Chowdhury not be registered was sought.
19 Mr Blacket argued that unsatisfactory professional conduct should be found by the Court of Appeal and that Mr Chowdhury should be reprimanded. The HCCC was successful in that both matters were remitted by the Court of Appeal to the Tribunal for rehearing.
20 Ms Furness submitted that the Court of Appeal had dealt with the issue of costs in respect of the Tribunal hearing in February 2009 by not making an order that the HCCC pay the costs of Mr Chowdhury before the Tribunal. Accordingly, so it was submitted, the matter of costs could not be re-litigated before this Tribunal. We reject this submission. The Court of Appeal did not deal with the question of costs in respect of the hearing before the Tribunal in February 2009.
Consideration
21 As earlier observed, the issue for determination relates to costs in respect of the proceedings before the Tribunal in February 2009 involving Mr Chowdhury and the HCCC.
22 In our view, the principles set out by the Court of Appeal in Sinha v Health Care Complaints Tribunal [2001] NSWCA 206 are applicable in determining this issue. That matter involved a decision of the Medical Tribunal of New South Wales which was overturned on appeal and the Court of Appeal ordered a rehearing by the Tribunal. As is the case here, the error identified by the Court of Appeal did not involve the conduct of either party and was committed after the hearing had been completed, and the reasons given for the decision.
23 Fitzgerald AJA, with whom Ipp AJA and Hodgson JA agreed, stated at [62]:
In summary, the appeal should be allowed with costs, the Tribunal's decision and orders set aside and a rehearing of the complaint against the practitioner ordered. The costs of the previous proceedings against the practitioner should be paid by the unsuccessful party at the rehearing.
24 Mr Blacket submitted that this matter was distinguishable from Sinha in that there were two complaints in this matter, one successful, and one unsuccessful. There is no question that Mr Chowdhury is entitled to his costs in respect of the first complaint. The issue is in respect of the costs of the second complaint and in this respect, in our view, the principles set out by the Court of Appeal in Sinha are applicable.
25 Applying this principle, it follows that Mr Chowdhury should pay the costs of the HCCC in respect of the hearing of the second complaint during the proceedings in February 2009. It was agreed between the parties that the second complaint occupied one day or 20 per cent of the week of hearings in February 2009. Mr Chowdhury should pay 20 per cent of the HCCC's costs incurred in the February 2009 proceedings.
26 In respect of the hearing involving the question of costs, in our view, each party should bear their own costs. The HCCC conceded at the outset that they should pay the costs in respect of the first complaint. In our view, the appropriate approach is that each party should bear their own costs of proceedings brought before this Tribunal to determine the appropriate costs orders.
ORDERS