Health Care Complaints Commission v Livermore

Judgment (7 paragraphs)

[1]

Summary

This matter was heard on 7 April 2021, and reasons published on 23 April 2021: Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 (the Decision).
For the reasons set out in the Decision, we cancelled Mrs Livermore's registration as a nurse, and further ordered that she may not make an application for review that order for a period of six months from that date.
At the conclusion of the Decision we stated: 74. The Commission sought an order for costs, which order was not opposed by Mrs Livermore. There was some discussion at the conclusion of the hearing that a special costs order might be sought by the Commission, namely a gross lump sum costs order. 75. We propose to make an order that Mrs Livermore pay the Commission's costs as agreed or as assessed. If either party seeks some other order, it should do so within seven days of these reasons, such submissions being limited to three pages in length. The other party may respond within a further seven days. 76. 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. 77. However, we are confident that the common sense of the parties will lead to an agreed conclusion without any further intervention of the Tribunal.
Submissions were subsequently received from both parties.

[2]

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."

Consideration

There are two issues to determine. The first is whether the Tribunal should make any order as to costs
The Tribunal was surprised that Mrs Livermore now opposes an order for costs. At the hearing, through her counsel, she accepted that an order she pay the Commission's costs was appropriate. The Tribunal is entitled to act on submissions made to it by legal representatives acting on the instructions of their clients.
Nevertheless, we will consider Mrs Livermore's changed position on its merits.
The submission that the Commission has no entitlement to costs is fundamentally flawed.
The submission that there is no evidence that the Commission has a legal liability to pay costs, and that the Commission could not be satisfied there is any such liability, is misconceived.
As noted, the Tribunal has a discretionary power to make an order for costs under cl 13 of Sch 5D of the National Law.
The authorities are clear on this issue. In applying the provisions of cl 13, the general rule is that costs follow the event and that costs are intended to compensate the successful party, absent any disentitling conduct: Philipiah [2013] NSWCA 342 at [42]; Lucire v Health Care Complaints Commission (No 2) [20111 NSWCA 182; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87]; Singh v Medical Council of NSW (No 2) [2015] NSWGATOD 28 at [45].
The onus is on the other party, here Mrs Livermore, to establish a basis for any departure from this usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]).
The Tribunal is not satisfied that there is any such justification.
In the circumstances, Mrs Livermore must pay the Commission's costs.
The second issue is whether or not a fixed costs order should be made.
Mrs Livermore submits that the only evidence before the Tribunal is a four-page document apparently purporting to be a record of work performed by persons apparently employed by the Commission. She submits that there is no evidence of the hourly rate charged by the Commission's solicitors, and no evidence upon which the Tribunal could be satisfied that any of the work performed was reasonable in the absence of any explanation for the work performed. Nor is there any evidence of any Costs Agreement between the Commission and its counsel, and there is no evidence as to her invoice or the basis of her charges.
The Tribunal considers that the Commission's statements of principle are correct. However, it is not persuaded that a sufficient basis bas been demonstrated for the making of a fixed costs order.
The principal, indeed only, basis on which the order was sought was that: "[Mrs Livermore] has been put on notice by the Commission of the amount sought and has also rejected an opportunity to reduce that sum by negotiation. The respondent through her solicitors also rejects her obligation to pay the Commission's costs at all, a position which the Commission rejects and has conveyed to [Mrs Livermore] through the attached correspondence, in particular [Mrs Livermore's] reliance on Bell v Pentelow [2019] HCA 29. …"
While there is some evidence of a reluctance of Mrs Livermore to pay any costs (being the opposite position to the one she adopted at the hearing), the Tribunal is not satisfied that a fixed costs order should be made.
As the Appeal Panel stated in 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 at [45] (references omitted): "Tribunal Members should not generally be encouraged to carry out the work of costs assessors by making fixed sum costs orders. The circumstances most likely to arise in the Tribunal where it might be appropriate for the Tribunal itself to assess costs will usually be where the costs are very modest and the assessment is simple. This might be the case, for example, where the parties are self-represented and not entitled to recover work done in preparing their case, and the only recoverable costs are the filing fee and other small, non-contentious out of pocket expenses".

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Judgment (7 paragraphs)

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Cases Cited (16)

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