Health Care Complaints Commission v Khalighimonfared

The Applicable Law

1. Schedule 5D clause 13 of the Health Practitioner National Law (NSW) ("The National Law") empowers the Tribunal to order, inter alia, that a Practitioner pay the costs of the Applicant. There is no dispute that costs normally follow the event in this jurisdiction. In Qasin v Health Care Complaints Commission [2015] NSWCA82 Meagher JA (McColl and Ward JJA agreeing) said: "85 In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46 to 48] this Court (Baston JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42. (This position is in contrast to that under s60 of the CAT Act which provides by subsection (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings 'only if it is satisfied that there are special circumstances warranting an award of costs.)"
2. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42-44], Emmet JA (Meagher JA and Beech-Jones J agreeing) said: "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 the matter for hearing (see Lucire v Health Care Complaints Commission (2))[2011] NSWC 182 at [48] - [52]…. 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) 2NSWLR 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."

Consideration

1. By its initial Complaint and the Amended Complaint filed by consent on 5 April 2022, the Applicant sought findings that the Practitioner is guilty of unsatisfactory professional conduct and professional misconduct. At all stages of the proceedings the Applicant sought orders for cancellation of the registration of the Practitioner.
2. On 5 April 2022, the second day of the hearing, Counsel for the Applicant submitted a Minute which set out alternative orders to be made in the event that the Tribunal was not minded ordering cancellation. These proposed orders provided, inter alia, for suspension of the Practitioner's registration for two years and that he practise under Category B supervision.
3. By a Reply dated 10 January 2022 the Practitioner admitted: (a) each particular of all complaints in relation to every patient. (b) that he is guilty of unsatisfactory professional conduct. (c) that he is guilty of professional misconduct. The Practitioner denied that he "engaged in improper or unethical conduct relating to the practice or purported practice of medicine".
4. Accordingly, Counsel for the Applicant and the Practitioner agreed at the commencement of the hearing that there remained only two issues for determination. These issues were agreed to be as follows: "1. Is the Practitioner guilty of unsatisfactory professional conduct, in that he engaged in improper or unethical conduct relating to the practice or purported practice of medicine? 2, What, if any, orders by way of sanction should be imposed upon the Practitioner in all of the circumstances?"
5. As noted above, the Practitioner admitted to unsatisfactory professional conduct and professional misconduct prior to the commencement of the hearing. As indicated in our decision (paragraph 20), the Tribunal considered and determined each complaint independently of the admissions made by the Practitioner.
6. Accordingly, the hearing proceeded on the basis that the Practitioner made admissions of both unsatisfactory professional conduct and professional misconduct. Having carefully considered all of the evidence and submissions, the Tribunal rejected the contention of the Applicant that the Practitioner "engaged in improper or unethical conduct relating to the practice or purported practice of medicine".
7. The Tribunal is of the view that this outcome is relevant to the issue of costs, particularly having regard to the sanctions imposed by way of order on 11 July 2022. The Applicant failed to obtain orders for cancellation or suspension of the registration of the Practitioner. The Tribunal concluded that the appropriate outcome was the imposition of Category C supervision. The Tribunal carefully considered but declined to impose, a number of conditions which the Applicant sought to impose on the registration of the Practitioner.
8. The tribunal thus found that professional misconduct was established, without a finding that the Practitioner "engaged in improper or unethical conduct relating to the practice or purported practice of medicine". The Tribunal concluded that the cancellation orders sought at all times by the Applicant were unwarranted and that sanctions of a lesser degree of severity would be sufficient to ensure "the protection of the health and safety of the public".
9. In these circumstances, the Tribunal is of the view that it is appropriate that discretion is exercised so as to apportion liability for the costs of the proceedings between the Applicant and the Respondent. Fundamentally the proceedings were necessitated only because of the failings of the Practitioner in the course of his treatment of the six patients, which he admitted to constitute unsatisfactory professional conduct and professional misconduct. On the other hand, the Applicant did not achieve its proposed outcome in respect of either of the two issues which remained for determination at the commencement of the hearing.
10. It should be noted that the Respondent made no suggestion that the Applicant conducted the proceedings in a manner which involved oppressive conduct. The question of oppressive conduct has played no role in the present determination.
11. In the exercise of discretion, the Tribunal concludes that the Practitioner should pay an amount equal to 75 per cent of the costs of the Applicant incurred in the proceedings.

Orders 1. The Respondent is to pay 75% (seventy five percent) of the costs of the Health Care Complaints Commission with such costs to be as agreed or 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: 07 September 2022