Health Care Complaints Commission v Chowdhury

JUDGMENT:

• 1 - MEDICAL TRIBUNAL OF NEW SOUTH WALES

DEPUTY CHAIRMAN: Staff J MEMBERS: Dr D Child AM Dr K Ilbery Dr M Gleeson OAM

HEALTH CARE COMPLAINTS COMMISSION v SWAPAN CHOWDHURY

1 On 10 June 2009, the Medical Tribunal of New South Wales ("the Tribunal") published its decision in respect of two complaints brought by the Health Care Complaints Commission ("HCCC") concerning Mr Swapan Chowdhury, who had been previously registered as a medical practitioner. 2 The first complaint was not established. Mr Chowdhury admitted the second complaint and the Tribunal found Mr Chowdhury guilty of professional misconduct. The Tribunal ordered that Mr Chowdhury having ceased to be registered, not be re-registered. The Tribunal granted the parties liberty to apply in respect of the question of costs: Health Care Complaints Commission v Chowdhury (Medical Tribunal of New South Wales, 10 June 2009, unreported). This decision deals with the question of costs. Background 3 Mr Chowdhury appealed to the Supreme Court of New South Wales, Court of Appeal against the whole of the decision in relation to the second complaint. The Court of Appeal allowed the appeal and remitted the matter for determination to a differently constituted Tribunal. The Court of Appeal ordered that the HCCC pay Mr Chowdhury's costs of the appeal, which has occurred: Chowdhury v Health Care Complaints Commission [2010] NSWCA 56. 4 The Tribunal heard the matter, remitted by the Court of Appeal, on 27 and 28 September 2010. The complaint prosecuted was identical to the second complaint in the earlier proceedings. The Tribunal delivered its decision on 20 October 2010, finding that Mr Chowdhury was guilty of professional misconduct within the meaning of s 37 of the Medical Practice Act 1992. Mr Chowdhury was reprimanded and the Tribunal ordered that when he is registered, conditions be imposed on his registration. Mr Chowdhury was ordered to pay the HCCC's costs: Re Dr Swapan Chowdhury [2010] NSWMT 13. Current proceedings 5 Mr Chowdhury seeks an order that the HCCC pay the costs of and incidental to the hearing of the first and second complaint up to and including 10 June 2009, being the date of the decision. Mr Chowdhury also sought that the costs of this application be paid by the HCCC. 6 It was common ground that the hearing of the first complaint occupied 80 per cent of the hearing. The HCCC conceded, quite properly, that it should pay that percentage of Mr Chowdhury's costs of the hearing. We propose therefore, to make an order in these terms in respect of the first complaint. There is no basis to award costs up to the date of the decision. The second complaint 7 We turn to consider Mr Chowdhury's claim for the payment of his costs in respect the hearing of the second complaint. Both complains were heard by the Tribunal on 23, 24, 25, 26 and 27 February 2009. Jurisdiction of the Tribunal in respect of costs 8 Schedule 2, cl 13 of the Medical Practice Act 1992 ("the Act") enabled the Tribunal to make costs orders. Clause 13 provided: Schedule 2 Proceedings before a Committee or the Tribunal ... 13 Tribunal can award costs

(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

1. The Health Care Complaints Commission is to pay 80 per cent of the costs incurred by Mr Chowdhury in respect of the proceedings before the Medical Tribunal of New South Wales that were heard between 23 and 27 February 2009 up to and including the conclusion of the hearing on 27 February 2009.

2. Mr Chowdhury is to pay 20 per cent of the costs incurred by the Health Care Complaints Commission in respect of the proceedings before the Medical Tribunal of New South Wales between 23 and 27 February 2009 up to and including the conclusion of the hearing on 27 February 2009.

3. In respect of the proceedings before the Medical Tribunal of New South Wales on 27 October 2010, each party is to bear their own costs.

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