Health Care Complaints Commission v Khorami

NCAT Occupational|2023-06-09

Introduction

On 29 November 2022, the Tribunal cancelled the registration of Ali Kalantari Khorami (Respondent) as a medical practitioner pursuant to the s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) (National Law), imposed a non-review order pursuant to s 149C(7) for a period of 10 years and made a permanent prohibition order pursuant to s 149C(5)(a) of the National Law.
The Tribunal made orders on 20 February 2023 with respect to any application for costs of the proceedings, and any submissions in opposition to the Tribunal dispensing with a hearing of any costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).
On 20 March 2023, the Health Care Complaints Commission (the Commission) filed submissions in support of its application for an order that the Respondent pay its costs of the proceedings as agreed or assessed on a party and party basis.
By email to the Tribunal dated 27 March 2023, a Legal Officer of the Commission informed the Tribunal that the Commission's written submissions with respect to costs were "being sent to the Respondent in custody". It is not in doubt that the Respondent remains in custody as a consequence of convictions and sentences imposed upon him by the District Court in the criminal proceedings which gave rise to the Tribunal's finding pursuant to s 149C(1)(c) of the National Law. The evidence does not reveal any other address to which the submissions may have been sent with the prospect of them thereby coming to the notice of the Respondent.

The Commission's case

The Commission relied upon its success in both the Stage 1 and Stage 2 proceedings. At the behest of the Tribunal, and, fairly, without opposition from the Commission, its application was heard as a two-stage hearing, notwithstanding that the Respondent had no defence to the Stage 1 proceedings, and put up no more than token resistance to a finding pursuant to s 149C(1)(c) of the National Law in those proceedings. The Commission had prepared its case on the reasonable assumption that there would be a combined Stage 1 and Stage 2 hearing.
The Commission was wholly successful in the Stage 1 and Stage 2 proceedings. In support of its claim, the Commission relied upon the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 ("Philipiah") which established that, as a general rule, costs of proceedings before the Tribunal should follow the event, costs being awarded to compensate the successful party rather than punish the unsuccessful party, although that may be the effect of a costs order.
The Commission submitted that it had been successful because: "(i) the subject matter of the Complaint was fully proven; (ii) the Tribunal found that the practitioner had been convicted of criminal offences within the meaning of s 144(a) of the National Law; (iii) the Tribunal accepted the Commission's submissions regarding the seriousness of the conduct; (iv) the Tribunal found that the practitioner is unfit in the public interest to practise medicine; (v) the Tribunal imposed protective orders sought by the Commission (cancellation, 10 year non-review period, prohibition order)."
The Commission submitted that, while the Respondent asserted that he had suffered or would suffer financial hardship if his registration was cancelled, or cancelled for a lengthy period, there was no evidence regarding the Respondent's current financial circumstances, and that mere "impecuniosity" was not a justifiable reason for departing from the general rule that costs of proceedings before the Tribunal should follow the event (Philipiah).
The Commission submitted that there was no conduct of the Commission that would disentitle it to being awarded its costs: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 ("Oshlack"); Health Care Complaints Commission v CSM [2016] NSWCATOD 125; Health Care Complaints Commission v Brush (No 2) [2015] NSWCATOD 154. As the Commission submitted, the onus is on the Respondent to establish a basis for any departure from the general rule: Health Care Complaints Commission v Livermore [2021] NSWCATOD 115.
The Commission submitted that there was no disentitling conduct warranting a departure from the general rule because: "(a) the Commission took a number of steps during the proceedings to minimise costs, including not briefing Counsel; (b) the Commission acted appropriately to progress the matter, including serving its Stage 1 material on time, serving its Stage 2 material on time and making appropriate written and oral submissions; (c) the Stage 1 and Stage 2 hearings were both conducted appropriately and completed within the estimate."
The Commission did not oppose an order pursuant to s 50(2) of the CAT Act dispensing with hearing and determining its application on the papers.

The principles governing the application

The principles governing the present application are not in doubt and need only be briefly reiterated.
Clause 13 of Sch 5D of the National Law invests the Tribunal with jurisdiction to award costs, and to fix the "amount of costs", or order that costs be assessed. Clause 13(1) provides that the Tribunal may order a health practitioner at an "inquiry or appeal before the Tribunal" to pay the costs to another person as decided by the Tribunal. Clause 1(2) of Sch 5D of the National Law provides that a reference in Sch 5D, "however expressed", to proceedings before the Tribunal "is a reference to proceedings before the Tribunal under this law".
Section 165B of the National Law is concerned with the "constitution of the Tribunal for complaints, applications and appeals". Section 165B(5A) provides that, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the CAT Act, the Tribunal is to be constituted by the Tribunal List Manager or, relevantly for present purposes, a member who, pursuant to s 165B(2)(a) is a "senior judicial officer". "Senior judicial officer" is defined in s 165(b) of the National Law to include a judge of the District Court. Section 4(1)(b) of the CAT Act provides that "a decision concerning the awarding of costs" is an ancillary decision.
The Tribunal is satisfied that, as presently constituted, it has jurisdiction to determine the Council's costs application: Health Care Complaints Commission v Govan (No 2) [2022] NSWCATOD 108.

Whether the Tribunal should dispense with a hearing of the Commission's costs application

There are no submissions before the Tribunal opposing an order pursuant to s 50(2) of the CAT Act dispensing with a "hearing" of the Commission's cost application. The orders of the Tribunal of 16 September 2022 provided for submissions in opposition to such an order, thereby affording the parties an opportunity to make submissions about such an order: CAT Act, s 50(3). The Tribunal is satisfied in accordance with s 50(2) that "the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal". Lest the Respondent be concerned that dispensing with a "hearing" implies that the Tribunal will not give proper, genuine and realistic consideration to the merits of the case (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9]), as the reasons which follow demonstrate, that is not the case.

Whether the Commission is entitled to an order for costs

Although the Commission's costs application has not been actively resisted by the Respondent, it must still make out its case if it is to be awarded costs.
As the decision in Philipiah makes clear, in proceedings of the present kind, the general rule is that costs should follow the event. The outcome of the "event" in this case is not in doubt, and did not involve mixed success and failure on the part of the Commission. The Commission was wholly successful in the proceedings which were determined on 16 September 2022. The Respondent was wholly unsuccessful in those proceedings. In those circumstances, there is a presumption that costs follow the event.
There is no automatic rule that costs always follow the event: Oshlack at 40-41). A successful party may be denied some part or all of its costs. An unsuccessful party may be awarded costs, although exceptional circumstances must exist before a successful party is deprived of costs and required to pay an unsuccessful opponent's costs: Arian v Nguyen [2001] NSWCA 5.
Nothing which the Tribunal has found in the substantive procedings, or since discovered could justify an order requiring the Commission to pay the unsuccessful Respondent's costs.
Misconduct or some form of impropriety on the part of the successful party is a basis for departure from the usual rule that costs follow the event: Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries [1951] 1 All ER 873; Oshlack at 69; Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; 288 ALR 385. Such conduct may relate to the litigation, or the circumstances leading up to the litigation: Oshlack at 69.
Nothing found by the Tribunal in the proceedings, or since discovered, provides a basis for finding misconduct or impropriety in some manner on the part of the Commission which would disentitle it to its costs of the proceedings.
Courts have consistently refused to decline to make an order for costs where one is justified on the basis that the party against whom an award is made is or may be impecunious: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25. There is no evidence before the Tribunal that the Respondent is, or may be, impecunious. It is likely that the Respondent's incarceration, and cancellation of his registration as a medical practitioner, would have a material and adverse impact on the Respondent and his family.
If a basis for departure from the usual rule is asserted, the party doing so bears the onus of demonstrating such basis: Waterman v Gerling (Costs) [2005] NSWSC 1111. No basis for departing from the usual rule emerges from the evidence before the Tribunal.
It is uncontroversial that the rationale of awarding costs is to partially reimburse the successful party for costs incurred, and that the intention is not to punish the unsuccessful party: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59. The Tribunal accepts that a costs order against him may have a punitive impact on the Respondent, but, put bluntly, his offending conduct has put him in that position.

Consideration

The Commission was undoubtedly wholly successful in the proceedings, and the Respondent was wholly unsuccessful. Although the Respondent mounted no more than token opposition to the Stage 1 or Stage 2 proceedings, the Commission was still obliged to prove its case at both stages. Although in no way derogating from its obligation to thoroughly prosecute its application, the Commission conducted the proceedings with economy, efficiency and, to the extent that it permissibly could, forbearance in view of the Respondent's incarceration and lack of legal representation.
The Commission could permissibly have briefed Counsel but did not, thereby saving expense, potentially for the Respondent. The material presented by the Commission at Stage 1 and Stage 2 was appropriately comprehensive. Nothing done or not done by the Commission throughout the proceedings would incline the Tribunal to refuse a costs order if one is otherwise appropriate. There is an absence of disentitling conduct, or any other circumstance which would militate against making a costs order in favour of the Commission.
It is likely, although there is no evidence in that regard, that, if only by virtue of his incarceration and its duration, and the consequences of his criminal convictions, the Respondent and his family are suffering financially as a result of his offending conduct and are likely to do so in the future. If that is so, the Respondent has brought this on himself. The fact that his family may be victims of his offending conduct does not militate against making a costs order against the Respondent.
The Tribunal is comfortably satisfied that the Commission has made out its case for costs.
The only reservation which the Tribunal has about making an unconditional costs order arises from the fact that the Respondent apparently continues to have no legal representation and is serving a custodial sentence. During the hearing of the Stage 1 and Stage 2 proceedings, during which the Respondent appeared from the penitentiary in which he is incarcerated, it became apparent that communicating with him was not necessarily easy or straightforward.
Although the Tribunal has no reason to doubt that the prison authorities would have made the Commission's application and submissions in support of it available to the Respondent, there is no evidence to that effect. It is conceivable that the Respondent may not be aware of either the Commission's costs application or its submissions in support of that application.
It is difficult to imagine that, in the circumstances of this case, the Respondent could have adduced any evidence, or made any submissions which would have been likely to change the outcome of the Commission's costs application. Although, in those circumstances, potentially denying the Respondent natural justice may not involve legal error (Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54), the Tribunal is anxious to avoid making orders whose status may be problematic. It is not in the interests of the Commission that the Tribunal do so in any event.
The Tribunal is unaware of any provision of the National Law or the CAT Act which specifically permits it to make a costs order in favour of the Applicant, but grant leave to the Respondent to apply to set it aside within a defined period of service of the order upon him, at his risk as to costs. In all the circumstances, the most appropriate approach appears to be to make the costs order, to direct the Commission to serve the Tribunal's Decision on Corrective Services New South Wales (Corrective Services) with a request that Corrective Services expeditiously provide the Decision to the Respondent and inform the Commission and the Tribunal of the date upon which that occurs, and that enforcement of the costs order is stayed for a period of one calendar month following the date upon which the Respondent is thus served with a printed copy of the Tribunal's Decision.

Orders 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing of the Applicant's costs application. 2. The Respondent pay the Applicant's costs of and incidental to the proceedings as agreed or assessed on a party/party basis. 3. That the Applicant serve a printed copy of the Tribunal's Decision on Corrective Services New South Wales with a request that Corrective Services hand such copy Decision to the Respondent and inform the Applicant and the Tribunal of the date on which it has done so. 4. That enforcement of order (2) is stayed until the expiration of one calendar month from the date upon which the Respondent is provided with a printed copy of the Tribunal's Decision.

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: 09 June 2023

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