Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 198 | Case summary

NCAT Occupational|2018-11-21|Before: Meagher JA

Introduction

These reasons are in respect of an application by the Health Care Complaints Commission (the HCCC) for an order for costs following disciplinary proceedings in the Tribunal.
The respondent to the application, Dr Johannes Bernardus Haasbroek (the practitioner), is a general practitioner. The disciplinary proceedings against the practitioner were heard in February and August 2018. Orders were made on 31 October 2018. The practitioner was reprimanded. At the request of the parties, it was agreed the question of whether the practitioner should pay the costs of the proceedings was to be dealt with by written submissions.
Written submissions were received from the HCCC on 21 November 2018 and on behalf of the practitioner on 10 December 2018.

Jurisdiction

Under s 165B (5A) of the Health Practitioner Regulation National Law (the National Law) the Tribunal, when constituted to make an ancillary decision as defined in the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), is to be constituted by the Tribunal List Manager or the judge or legal member presiding at the hearing.
Section 4 of the NCAT Act defines "ancillary decision". Sub-para (b) of the definition is "a decision concerning the awarding of costs in proceedings". Schedule 5D cl 13 of the National Law gives the Tribunal power to award costs. It provides as follows: 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.

Principles to be applied in determining a costs application.

The relevant principles are subject of well-established authority. In Health Care Complaints Commission v Phillipiah [2013] NSWCA 342 Meagher JA explained at [42]-[44]: 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.
Those principles are also referred to in Health Care Complaints Commission v Do [2014] NSWCA 307.

(a) the Health Care Complaints Commission

The HCCC submissions note that the practitioner chose to appear unrepresented when the matter was originally listed for hearing and that the HCCC supported the matter being adjourned so that the practitioner could obtain legal representation.
In a table, at para 8 of the submissions, it is noted that: 1. The practitioner admitted all particulars of Complaint One (these particulars related to various criminal offences). 2. That the practitioner admitted Complaint Two (this complaint also related to criminal offences). 3. The practitioner conceded he was guilty of unsatisfactory professional conduct under s 139(1)(b) but not under s 139(1)(l) "other improper or unethical conduct". Importantly, it is acknowledged in respect of Complaint Three the HCCC could not establish unsatisfactory professional conduct based on s 139(1)(l) given the particulars relied on to establish that claim. 4. The HCCC agitated under Complaint Four a claim of that the practitioner was not a suitable person to hold registration. The HCCC withdrew particular 4 and accepted that particular 7 of this complaint could not be established.
The HCCC assert that a "significant part" of the hearing and the Tribunal's decision concerned questions of law, particularly s 144(e) and the correct interpretation of that provision.
The submissions submit that the HCCC has been successful in the majority of the complaints and particulars. It is further submitted that "the usual order as to costs" should be made.

(b) the practitioner's submissions

The practitioner's submissions also note the admissions made by the practitioner in relation to his criminal offences and failure to notify the Medical Board of Australia of those offences within the time prescribed in the National Law.
The submissions emphasise that the substantial issue in the proceedings was Complaint Four. It is noted that it was not until the hearing on 29 August 2018 that the HCCC withdrew particular 4 of Complaint Four, and even later, that it conceded that particular 7 was not established on the evidence.
Paragraph 16 of the practitioner's submissions explains: Both complaint three and the first limb of complaint four sought to rely on s 139B (1) (l). It was not until the conclusion of the hearing that the Applicant conceded that the evidence was not capable of establishing unsatisfactory professional conduct under s 139B (l) (l). The Tribunal accepted that concession was properly made.
After a detailed discussion of the other admitted particulars and the Tribunal's findings, the submissions note, at para 24, that the Tribunal was not satisfied that the practitioner was currently unsuitable to hold registration. I pause to note, that it was on this basis that the HCCC sought the practitioner's registration should be cancelled and a period of disqualification imposed.
In support of a departure from the general rule, the practitioner's submissions may be summarised as follows: 1. The practitioner was entirely successful in defending Complaint Four and this complaint was the major focus of the hearing. 2. The particulars relied by the HCCC did not establish the practitioner was otherwise unsuitable person to hold registration. 3. Aspects of the HCCC's conduct before the Tribunal are "disentitling" conduct, namely the late withdrawal of particular 4 of Complaint Four, the even later withdrawal of particular 7, improper reliance on particular 8, and the continued reliance on particular 1 of Complaint Four where such reliance was contrary to law.
It is submitted on behalf of the practitioner that any costs made against him should be discounted by 60 per cent.
In response to the HCCC's submissions, it is noted that the table does not reflect all particulars admitted by the practitioner. It is further noted that the "question of law" did not take up hearing time, but rather was a matter addressed in submissions.

Discussion and conclusions

There is no doubt that the practitioner's criminal conduct necessitated these proceedings. His admissions in relation to his criminal offences were made in a timely and appropriate way.
I am satisfied that the HCCC in agitating Complaint Three under s 139B(1)(l) was entirely unsuccessful as the conduct alleged was not conduct in the course of the practitioner's practice of medicine or purported practice of medicine.
I agree with and accept the submissions of the practitioner that extensive hearing time was not taken up on the issue of the correct interpretation of s 144(e) of the National Law. That matter was essentially dealt with in the submissions at the conclusion of the evidence.
I am further satisfied that the HCCC failed to establish the claim that the practitioner, at the date of the hearing, was not suitable to hold registration. This was the basis on which the HCCC sought an order that the practitioner's registration be cancelled and a year elapse before he could apply for a re-instatement order.
I find in this matter that the practitioner's early admissions of the particulars of the criminal offences, the HCCC's concession that s 139(1)(l) was not available as a basis to substantiate Complaint Three, the HCCC's late withdrawn of particulars 4 and 7 of Complaint Four and lack of success in respect of the particulars under Complaint Four, cumulatively justify a departure from the usual rule in respect of costs.
Balancing those matters on which the HCCC was successful and the matters enumerated in the above paragraph, I conclude that a fair and reasonable apportionment of costs is that the practitioner is ordered to pay 50 per cent of the HCCC's costs.

ORDER 1. Dr Johannes Bernadus Haasbroek shall pay fifty (50) per cent of the costs of the Health Care Complaints Commission of and incidental to the proceedings as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

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

Amendments 29 January 2019 - Typographical error on coversheet 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: 29 January 2019

Health Care Complaints Commission v Haasbroek

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