Leary v Leary [1987] All ER 261
Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
Pham v Enterprise ICT Pty Ltd and Others
Source
Original judgment source is linked above.
Catchwords
Leary v Leary [1987] All ER 261
Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
Pham v Enterprise ICT Pty Ltd and Others
Judgment (6 paragraphs)
[1]
Summary
This matter was heard on 13 May 2021, and reasons published on 30 July 2021: Health Care Complaints Commission v Le [2021] NSWCATOD 104 (the Decision).
For the reasons set out in the Decision, we found that:
1. All Complaints were established, save for Particular 5(a) of Complaint Two and Particular 1 of Complaint Six.
2. Mr Le's registration as a pharmacist should be cancelled; and
3. Mr Le should not be permitted to seek a review of the order of cancellation for a period of two years.
At the conclusion of the Decision we stated:
115. We propose to make an order that Mr Le pay the Commission's costs as agreed or assessed. If either party seeks some other order, they should do so within fourteen days of these reasons, such submissions being limited to three pages in length. The other party may respond within a further fourteen days.
116. If it becomes necessary to consider whether or not to make some other costs order, the Tribunal proposes to do so "on the papers". If either party opposes that course, they should address that matter in their submissions.
117. However, we are confident that the common sense of the parties will lead to an agreed conclusion without any further intervention of the Tribunal.
Subsequent to the publication of the Decision, in submissions of 4 August 2021, the Commission sought an order that it be paid a fixed sum costs order in the amount of $18,000 by the respondent.
Submissions were received Mr Le on 11 August 2021. In summary, he states:
he understands that the Commission has incurred costs in their investigation, and that he will have to pay those costs;
he is currently unemployed, and has been for the last four years while his registration has been suspended. In that time his pharmacies have deteriorated into unviable businesses. He has one pharmacy left which he cannot immediately sell due to an ongoing court matter which has gone on for two years;
he is incurring losses of around $30,000 per month, and owes $67,000 rent for that pharmacy;
his wife, aged 34, has been diagnosed with an aggressive stage four breast cancer which has moved into her lungs;
he is destitute, and is relying on living with his mother in law;
he is extremely depressed;
he cannot pay the $18,000 sought by the Commission, but has offered a smaller sum, which he will have to borrow in order to pay.
[2]
Commission's submissions
The Commission submitted that:
1. it may be appropriate to make a gross sum costs in cases where there would be utility in "cutting the Gordian knot" of protracted fights about costs: see Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [8]; Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930 at [5];
2. where the amount in issue is a modest sum and it would not be appropriate to require a further process of assessment to be undertaken: see Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [8]; and Kiwi Munchies Pty Ltd v Stern [2006] NSWSC 433;
3. where the costs assessment is likely to be a protracted and expensive exercise and the other party is unlikely to pay: see Leary v Leary [1987] All ER 261 at 266;
4. a probable inability to pay a costs order is not a basis on which to refuse a costs order, but supports the making of a fixed costs order rather than an order requiring assessment of costs: Health Care Complaints Commission v Shipley (No 2) [2020] NSWCATOD 148 and Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 9) [2018] NSWSC 1657;
5. ordering fixed costs would obviate further legal costs for the applicant and is particularly apposite in circumstances where it is or may be unlikely that a respondent will be able to meet the liability of the order in any event, or the costs of any assessment that may ultimately need to be undertaken if costs were to be assessed: Australia and New Zealand Banking Group Limited v Giannaklis (No 3) [2020] NSWSC 1271;
6. to require the successful party to be further aggravated by having to fund the additional costs of taxation, those costs also being unrecoverable, is a relevant consideration: Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 at [21];
7. ordering fixed costs brings about finality to the proceedings and is also a relevant consideration where costs are disputed: Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 9) [2018] NSWSC 1657.
8. if the Tribunal is persuaded to make a fixed sum costs order then it may adopt a broad-brush approach to the sum: In the matter of Mosman & Co Pty Limited [2020] NSWSC 1245; and Harrison v Schipp (2002) 54 NSWLR 738; [002] NSWCA 213 at [22].
The Commission's submissions included draft bill of costs in the amount of $20,776.32. It submits that the fixed sum sought of $18,000 is therefore a reasonable sum for the Tribunal to order. The Commission submits that the Tribunal can have confidence that the amount sought by the Commission is a discount, and reasonable and proportionate to the number of and complexity of the issues in the proceedings.
Finally, the Commission submits that if the Tribunal is not minded to make a fixed sum costs order, the Commission agrees with the order proposed by the Tribunal.
[3]
Power to make costs order
The Tribunal's power to make a costs order is found in cl 13 of Sch 5D to the Health Practitioner Regulation National Law (NSW) (National Law). That clause 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.
This application is being determined by me pursuant to s 165B(5A) of the National Law. That provision is in the following terms:
165 Constitution of Tribunal for complaints, applications and appeals [NSW]
…
(5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a).
I note that s 4 of the Civil and Administrative Tribunal Act 2013 (NSW) defines an ancillary decision to be a decision that is
"…preliminary to, or consequential on, a decision determining proceedings, including …
(b) a decision concerning the awarding of costs in proceedings."
[4]
Consideration
The Tribunal considers that the Commission's statements of principle are correct. Nevertheless, in the exercise of its discretion, it declines to make the fixed sum costs order as sought. This is for the following reasons.
First, there is no evidence to suggest that the parties have reached the stage of "protracted fights" where a "Gordian knot" needs "cutting". On the contrary, Mr Le has offered to pay the Commission a significant sum;
Secondly, the Tribunal does not consider, at least from the perspective of the respondent, that the amount in issue is a "modest sum". On the contrary, it considers that the amount sought is a significant sum for Mr Le.
Thirdly, there is no evidence to suggest that a costs assessment is likely to be a protracted and expensive exercise.
Fourthly, the Tribunal is not persuaded on that there will be any dispute about costs warranting the ordering of a lump sum. On the contrary, Mr Le recognises that he must pay the Commission's costs;
While it appears possible that Mr e may not be able to pay a costs order in full, the Tribunal is not persuaded that any of the matters relied on by the Commission, in the circumstances of this matters, either individually or in combination, warrant the making of a lump sum costs order.
[5]
Orders
The Tribunal makes the following orders:
1. The respondent is to pay the applicant's costs as agreed or as assessed.
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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: 26 August 2021