Stage 2 judgment was published in this matter on 12 May 2022. The orders relating to costs made in that judgment are as follows:
"4. The Respondent is to pay the costs of the HCCC for the proceeding to the conclusion of the Stage 1 hearing and determination. Such costs are to be as agreed or as assessed.
5. The parties are to negotiate any costs orders sought by either of them arising from the Stage 2 hearing and in the event of an agreement being reached provide a Minute of an agreed order to the Tribunal."
The parties were unable to reach an agreement in relation to the costs to be paid by one to the other and provided submission to support the order they each sought. Neither party sought to convene a further hearing on the issue of costs and proceeded by way of submission.
The HCCC provided its submission on 2 June 2022. In that submission I noted the following in particular.
The HCCC pointed to the power for the Tribunal to make a costs order is found in the National Law under clause 13(1) of Schedule 5D.
The HCCC submitted that on any view it had been successful in the Stage 2 proceeding. It submitted that the HCCC was successful because the subject matter of the complaint was fully proven. The HCCC referred the Tribunal to the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA at [42]-[46]. Those paragraphs I set out here:
"42. 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.
43. 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).
44. 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.
45. The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner.
46. The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. In all of the circumstances, I consider that the exercise of the discretion on the part of the Tribunal miscarried. The direction made by the Tribunal that there should be no order as to costs should be set aside."
See also: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51].
The HCCC submitted that it was under a duty to refer the matter to the Tribunal pursuant to s 145D(1) of the National Law, if it was of the opinion that were the complaint to be established then it would provide grounds for the suspension or cancellation of the respondents' registration.
The HCCC submitted that it was still the successful party on the Stage 2 hearing because it sought Protective Orders be made and that is what occurred. The fact that the Tribunal imposed a suspension of the Respondent's registration at the lower end of the range sought by the HCCC (it sought 3 to 6 months suspension) does not, it submits make it less successful. The same is said in relation to the conditions the HCCC sought including the category of supervision. The HCCC had sought category B supervision and the Tribunal imposed a Category C supervision order. There were other differences in the conditions which were sought by the HCCC and those ultimately imposed by the Tribunal.
The HCCC submitted the presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party (see Oshlack v Richmond River Council [1998] HCA 11 at [40]). The HCCC submitted that there was no disentitling conduct on the part of the HCCC. It was submitted that the onus lay on the Respondent to establish a basis for any departure from the general rule (see Health Care Complaints Commission v Livermore [2021] NSWCATOD 115 [20]).
The HCCC submitted that the Respondent volunteering to consent to conditions 4 to 10 as proposed by the HCCC in the hearing does not justify reducing costs.
The HCCC submitted that in relation to the category of supervision sought by the HCCC (category B) not being taken up by the Tribunal does not entitle a reduction in its' costs. It submits the finding by the Tribunal that a supervision order was necessary justifies the position taken by the HCCC in relation to same.
The Respondent (Dr Hasan) provided his submission on 2 June 2022. On that submission I noted the following in particular.
The Respondent seeks an order that the HCCC pay the costs of the Respondent for the Stage 2 Hearing, as agreed or assessed.
The Respondent set out the positions which the HCCC and the Respondent took in relation to controversial conditions. The Respondent had proposed a regime of conditions in the hearing of Stage 2, as had the HCCC. The Respondent showed how in the area of controversy the Respondent was successful in the main, in convincing the Tribunal that the conditions he proposed, should be made.
Of particular focus in the submission was the fact that the HCCC had sought a category B supervision order and it had been unsuccessful with that proposal as the Tribunal ordered category C supervision. Additionally, the Respondent had consented to many of the conditions which the HCCC had sought.
The Respondent concluded his submission of 2 June 2022 with the following statement:
Basis for proposed Stage 2 cost order
Accordingly, it is clear that Dr Hasan has had relative success at the Stage 2 Hearing. Costs should follow the event. Although he was suspended for three months (which was the lowest range sought by the HCCC in its 3 - 6 months range), the HCCC was not successful in any of the proposed conditions that Dr Hasan opposed.
In the circumstances, it is appropriate to that the HCCC pays Dr Hasan's costs. In the event that the Tribunal is not minded to make that order, Dr Hasan submits that, in the alternative, the appropriate order is that each party pay its own costs.
The HCCC responded to the submission made by the Respondent on 9 June 2022. In that submission I noted the following.
The HCCC submitted that failure of the Tribunal to make any of the conditions it had submitted were appropriate, would justify the reduction in a costs order in favour of the HCCC applying the principles it had set out in its' earlier submission. The HCCC referred the Tribunal to decisions of the Tribunal where costs orders had been made in its favour notwithstanding that the Tribunal failed to make the Cancellation order the HCCC had sought. It cited HCCC v Martin [2022] NSWCATOD 33, HCCC v Mohammadi (No. 2) [2022] NSWCATOD 15.). The HCCC provided references to other decisions of the Tribunal where it had not been successful in convincing the Tribunal to impose periods of suspension or conditions yet had received an order for its' costs to be paid in full.
The Respondent provided a further Reply to the submission of the HCCC. The Respondents submission is dated 10 June 2022. In that document I note the following.
The Respondent says that the HCCC's reliance upon the fact that a significant number of the conditions it proposed, were adopted by the Tribunal in its determination. However, the Respondent said there was no issue made by the Respondent in relation to those particular conditions as he consented to the making of such conditions.
The Respondent submitted that on any view the Respondent must be seen as having had a significant measure of success in the Stage 2 proceeding.
[2]
Determination
There is no issue on the power of the Tribunal to make a costs order. Each of the parties seek a cost order.
The Stage 1 determination saw the Respondent found to be guilty of both Professional Misconduct and unsatisfactory professional conduct. In those circumstances it was entirely reasonable for the HCCC to seek the Protective orders it did.
The Respondent in his submissions on the protective orders to be imposed, opposed any suspension of his registration. He submitted a reprimand and a mentorship provision was appropriate. In his submission he consented to the conditions which the HCCC sought, which were numbered 4 to 10 inclusive. He opposed conditions 1 to 3 inclusive.
Although the Respondent had a measure of success in opposing conditions 1 to 3 as sought by the HCCC, we consider that success is minor compared to the outcome achieved by the HCCC in having the Tribunal agree that a period of suspension was necessary. Further, there was nothing in the manner in which the HCCC conducted the stage 2 litigation which has been brought to my attention by the Respondent which would, in my view, disentitle it to a full cost order.
The Tribunal decisions in Fryer v HCCC [2015] NSWCATOD 177 at [103]-[106], Ameisen v Medical Council of NSW [2015] NSWCATOD 49 at [90] to [92] and Ristevski v Medical Council of NSW [2016] NSWCATOD 18 at [67] to [89] address the circumstances in which the HCCC should not receive an order for its costs.
It has been said on more than one occasion that the discretion to apportion costs is one to be exercised only in the most exceptional of circumstances: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; Stena Rederi Aktiebolag v Austal Ships Sales Pty Ltd [2007] FCA 1141 at [12].
In Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA306 at [24]:
"In the case where there are multiple issues litigated, the court may, in the exercise of its discretion, order that a successful party have part only of its costs. However, it does not necessarily follow that that is the appropriate order. The commencing position is that costs follow the event so that a successful party is entitled to costs. It may be appropriate to order that a successful party be deprived of costs or a portion of the costs if the matters upon which that party is unsuccessful took up a significant part of the trial, either by way of evidence or argument. This proposition is well established and does not require any discussion of the caselaw."
There is no evidence of any disentitling conduct attributable to the Commission or exceptional circumstances to suggest the ordinary rule should not apply: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.
The purpose of the order is compensatory not punitive.
Having considered all the submissions provided by the parties and the decisions listed above I determine that the Tribunal should exercise its discretion and make an order for the Respondent to pay the costs of the HCCC as it seeks.
Although being satisfied the HCCC should have a costs order in the Stage Two hearing which it seeks, there is another matter which also supports that determination.
The Complaint brought by the HCCC was heard in two stages. Stage One was the determination as to the whether the HCCC had established its complaint. Stage two was to determine what Protective Orders should be applied by the Tribunal in the event of the HCCC being successful in Stage One, which it was.
It is not every case which is heard by the Tribunal in the occupational division which is conducted in two stages. In this case it was probably seen as necessary given the earlier determination against the Respondent for a similar type of misconduct. There may also have been other reasons which the Tribunal was not made privy to. The Tribunal was not provided with that evidence in the Stage One hearing. Had this case been heard as one hearing dealing with Stage One and Stage Two there seems little argument to have supported any diminution in a full costs order in favour of the HCCC.
There remains the costs of this determination of the costs order to be made in the Stage Two hearing. The Respondent has been wholly unsuccessful and so the HCCC should also have an order for its' costs to be paid for this determination. I will so order.
[3]
Orders
The order of the Tribunal will be:
1. The Respondent is to pay the Health Care Complaints Commission costs of the Stage Two hearing and the costs determination, such costs to be as agreed or assessed.
[4]
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: 01 July 2022