The Health Care Complaints Commission (HCCC) made an application to this Tribunal for disciplinary findings and orders against the Respondent, Shuquan Liu (Dr Liu,) who had previously been registered as a Chinese Medicine Practitioner under the Health Practitioner Regulation National Law (National Law) which came before the Tribunal for hearing on 29 and 30 July 2024. Dr Liu voluntarily surrendered his registration as a Chinese Medicine practitioner on 25 January 2023.
The Complaints against Dr Liu were that he was guilty of unsatisfactory professional conduct and professional misconduct and the HCCC sought orders under s 149C(4) and (5) of the National Law that, if Dr Liu were still registered the Tribunal would have cancelled his registration, that Dr Liu be disqualified from being registered as a Chinese Medicine practitioner for a period of three years, that the National Board be required to record the fact that if he were still registered the Tribunal would have cancelled Dr Liu's registration and a prohibition order prohibiting Dr Liu from providing health services as defined in s4 of the Health Care Complaints Act 1993 (NSW) for a period of three years.
Dr Liu filed a Reply document in the proceedings in which he denied the Complaints and either did not admit or denied many of the particulars of the Complaints made against him. However he did not file any materials in relation to the application and in an email dated 9 April 2024, Dr Liu's solicitors advised the Tribunal that:
We are instructed that our client no longer wishes to participate in the above NCAT proceedings, and our client is willing to submit to any order that NCAT may make, save as to costs.
In the proceedings the HCCC relied upon a six volume bundle of documents comprising over 2000 pages of material which included seven lengthy statements which had previously been made by Dr Liu in relation to the events which gave rise to the Complaints against him as well as six expert reports. One of those experts was called to give some additional oral evidence at the hearing.
The Tribunal delivered its decision in the proceedings on 17 September 2024.The Tribunal found the Complaints against Dr Liu to have been proved (although it found that a small number of the particulars of the Complaints had not been made out on the evidence) and made orders in the terms sought by the HCCC: Health Care Complaints Commission v Liu [2024] NSWCATOD 149. The Tribunal also made orders for the filing of submissions as to costs.
The Respondent filed submissions as to costs on 8 October 2024 and the HCCC filed submissions in reply on 22 October 2024. Both parties indicated that they were content for the question of costs to be determined on the papers.
We are satisfied that the question of costs can be adequately determined in the absence of the parties on the basis of the parties' written submissions and will make an order dispensing with a hearing on the issue.
[2]
The parties' submissions as to costs
Under Schedule 5D, clause 13 of the National Law, the Tribunal has the power to require the Respondent to pay the HCCC's costs of the proceedings.
In its written submissions filed at the hearing the HCCC noted that the principles to be applied by the Tribunal in respect of its power to award costs had been recently summarised by the Tribunal in Health Care Complaints Commission v Horton [2024] NSWCATOD 102 at [97] - [102] as follows:
97 The power to award costs under clause 13 of Schedule 5D of the National Law is discretionary.
98 The underlying principle in relation to costs is that of justice and fairness (see, for example, Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 at [79]) and bearing in mind also the guiding principle, namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36 of the Civil and Administrative Tribunal Act 2013.
99 The Tribunal's discretion is unfettered. However, the compensatory principle of an award of costs militates in favour of a successful party obtaining an order for costs. The Tribunal is, however, entitled to consider other factors which suggest a different conclusion (Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]).
100 The general rule is that costs follow the event (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]). This is not a legal presumption but a guiding principle.
101 Conduct described as "disentitling conduct" may be a factor weighing in favour of not awarding a successful party its costs, or all of its costs.
102 In Philipiah, Emmett JA (at [42]) pointed to factors which might militate against the recovery by the Commission of all its costs in particular proceedings.Impecuniosity was excluded as such a factor. His Honour then set out a number of factors, by way of example, which might result in departure from the general rule. One of those factors was the way in which the Commission prosecuted proceedings before the Tribunal, such as taking procedural steps that give rise to unnecessary expense in the preparation for the hearing (as identified in Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]).
In his submissions the Respondent agreed, as do we, that these are the general principles to be applied in considering whether to make an order as to costs in proceedings of this nature.
However, the Respondent submitted that because he had filed a "submitting appearance" in the proceedings, the "usual effect" of a submitting appearance should be applied such that he should not be liable to pay the HCCC's costs of these proceedings at least from 9 April 2024 when his position was made clear to the Tribunal.
He alternatively submitted that because he had voluntarily surrendered his registration and, by way of written submissions dated 10 February 2023, informed the HCCC that he had no intention of re-applying for registration as a Chinese Medicine Practitioner in the future there was no need for the HCCC to seek the relief it sought from the Tribunal in the proceedings and little utility in the orders which were ultimately made by the Tribunal. He submitted that this was not a case where the HCCC was compelled to bring the proceedings and that its choice to do so was relevant to the exercise of the discretion to award costs.
[3]
Consideration
In so far as the Respondent's submission as to his having filed a "submitting appearance" is concerned, this submission must be rejected.
While the Respondent indicated that he did not propose to participate in the proceedings and was willing to submit to any order the Tribunal may make, he had previously filed his Reply document in the proceedings in which he denied the Complaints and many of the particulars of the Complaints made against him, even particulars which appeared to be entirely uncontroversial (such as the age of the relevant patient under his care). He did not seek to withdraw that document. Nor did he, as was open to him to do so, admit the subject matter of the Complaints in writing to the Tribunal. Had he done so that may have relieved the Tribunal from the need to undertake the inquiry into the Complaints before it under s 165H of the National Law. However, he did not do so and, accordingly, put the HCCC to proof on all matters. As such the Tribunal was required to inquire into the Complaints before it and to carefully consider all of the evidence before it which was substantial including the seven statements which Dr Liu had previously made. It was entirely appropriate for the Tribunal to have the assistance of the HCCC and its legal representatives at the hearing to assist it to understand that evidence.
The Respondent's alternative argument that the proceedings were not necessary and that the orders sought by the HCCC and made by the Tribunal were of little utility must also be rejected.
While it is true that the practitioner's registration had been surrendered, the National Law expressly confers power on the Tribunal to make orders in the terms it made namely deciding that Dr Liu's registration would have been cancelled if he was still registered and disqualifying him from being re-registered.
These orders serve a purpose of general as well as specific deterrence. While Dr Liu's representatives informed the HCCC in February 2023 that he had no intention of applying for re-registration as a Chinese Medicine Practitioner there was no evidence before the Tribunal as to whether this remained Dr Liu's intention. The orders made were necessary to ensure that Dr Liu not be re-registered in the event his intentions had changed or were to change in future in this regard.
Nor was there evidence before the Tribunal as to what work Dr Liu was then undertaking or his intentions in that regard. An order prohibiting him from providing other health services was again necessary in the Tribunal's view for the protection of the public, in light of the very serious misconduct findings against Dr Liu.
As the Tribunal stated in its decision:
205 In the circumstances, we consider that if Dr Liu were still registered, it would have been necessary to cancel his registration as a Chinese Medicine practitioner pursuant to s 149C(1)(b) of the National Law to protect the public against the risk of Dr Liu returning to practice in a reckless and haphazard way.
206 We are satisfied that, where the paramount consideration is the protection of the health and safety of the public, it would have been both necessary and appropriate to make an order cancelling Dr Liu's registration. A cancellation order would serve to publicly condemn his poor conduct and send a strong message that misconduct of this type will not be tolerated. A cancellation order would also serve to act as a specific and general deterrent, to uphold the standards of the Chinese Medicine profession and to preserve public confidence in the profession.
207 We also consider that Dr Liu should be disqualified from being registered in the Chinese Medicine profession for a period of time to send a message to him, to the profession and to the public about the gravity of his misconduct. In our view, a period of three years before he could seek registration as the HCCC seeks is appropriate.
…
214 For the same reasons as outlined above, we consider that if Dr Liu were to be involved in the provision of other health services he would pose a substantial risk to the health of the members of the public. It seems to us that there would be a very real risk that, in the provision of any health service, Dr Liu would revert to the arrogant and slapdash behaviours he exhibited in his "care" of Patient A and, on his own evidence, in his care of patients generally on the 101 Wellbeing Program.
In proceedings of this nature, the Tribunal is tasked with making orders which are necessary for the protection of the public. That is what the Tribunal did, and we reject the suggestion that the orders made were of little or no utility.
The Reply document filed by the Respondent and his subsequent failure to appear at the hearing made the Tribunal's task in these proceedings all the more difficult. On the other hand, while there were some limited aspects of the particulars pleaded which the Tribunal found the HCCC failed to establish on the evidence, the HCCC established the overwhelming majority of the particulars pleaded against Dr Liu and on the material before the Tribunal we do not consider there was any disentitling conduct by the HCCC which would warrant a departure from the general rule that costs follow the event. While it has taken considerable time for these proceedings to come before the Tribunal that is explained by the protracted procedural history to the proceedings which is detailed at paragraph [20] of our earlier decision.
[4]
Orders
1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing is dispensed with.
2. Under clause 13 of Schedule 5D of the National Law, the Respondent is to pay the Health Care Complaints Commission's costs as agreed or assessed.
[5]
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: 05 November 2024