Health Care Complaints Commission v Vorillas

1. As the Tribunal noted in the Stage 2 Decision, the Commission sought its costs on the basis it had been successful in the Stage 1 proceedings and as this was a costs jurisdiction, absent some disentitling conduct, the Commission was entitled to its costs in the usual course of events.
2. The practitioner submitted that the Tribunal ought to exercise its discretion to displace the presumption that the successful applicant was entitled to receive their costs.
3. The practitioner sought an order that the practitioner pay only 50% of the Commission's costs, based on the contention that discrete and substantial elements of the conduct complained of were not established, which took up a substantial part of the hearing of the matter, and in those circumstances, it was appropriate to reduce costs to be recovered by the Commission: Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]- [52].
4. In response, the Commission submitted that such a presumption will generally only be displaced where there has been "disentitling conduct" by that party, and that it is for the losing party to establish the basis for any departure from the rule: Patrech v Psychology Board of Australia (No 2) [2023] NSWCATOD 9 at [11]; Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]; Health Care Complaints Commission v CSM [2016] NSWCATOD 125 at [98] and Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 at [9];
5. The Commission submitted there was no disentitling conduct by the Commission to warrant a departure from the general rule.
6. The Commission relied on Allianz Australia Insurance Limited v Rawson Homes Pty Ltd (No 2) [2021] NSWCA 334[1] where it was stated that:

Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.

If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].

Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

A separable issue can relate to 'any disputed question of fact or law' before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272.

(emphasis of the Commission)

(1) there was no reason why the Tribunal ought to depart from the general principle of not differentiating between issues in which the applicant was successful and those in which it was not, where the applicant enjoyed a significant measure of success on a central matter disputed by the respondent including:

(a) findings that the practitioner had touched Patient A's labia breast, albeit inadvertently;

(b) the finding that the practitioner had engaged in professional misconduct;

(2) there was no warrant to embark upon a process of determining separate issues for the purposes of costs given the overarching success of the applicant. Whilst some of the time cross-examining Patient A was directed towards parts of the complaint that were not found proven, Patient A and the other witnesses would still have been required for significant cross-examination given the practitioner's denial of conduct which was subsequently found to have occurred;

(3) as to whether any matters on which the Commission was unsuccessful "took up a significant portion of the trial", the proceedings were completed over a relatively short three-day period in any event. Even if the complaint had not included particulars over the time frame found not proven, all of the witnesses, including the experts, the practitioner and the practitioner's witnesses would have been required for cross-examination given the practitioner's denial that he touched Patient A at all;

(4) there was no basis for the Tribunal to exercise its discretion to apportion costs, whether in the proportion of 50% or in some other proportion;

(5) there was no basis to displace the usual rule that the successful party, that is the Commission, should benefit from a compensatory costs order, and the Tribunal ought to make the usual order that the practitioner is to pay the Commission's costs as agreed or as assessed.

1. In the Stage 2 Decision, the Tribunal stated that it proposed to deal with costs "on the papers" and without a hearing. In Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 the Appeal Panel stated at [85] that:

[i]t is the experience of the Appeal Panel that costs decisions in the Consumer and Commercial Division and on appeal (unless dealt with at the time of the hearing) are routinely considered "on the papers", and without a hearing. The parties were given an opportunity to provide written submissions and did so. They can be presumed to have included all relevant issues in their written submissions.

1. That principle equally applies to decisions in the Occupational Division: Bolton v Health Care Complaints Commission (No 2) [2024] NSWCATOD 38 at [4].
2. Neither party opposed the Tribunal determining costs on the papers. As the Tribunal is satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submissions, a hearing is dispensed with: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2).
3. Further, it is in the interests of avoiding an escalation of costs, expediency and efficiency that the issue of costs be determined without a hearing. This is consistent with the objectives and principles of the National Law requiring expediency under cl 11 of Sch 5D, and the "guiding principle" of the Tribunal (NCAT Act, s 36) which requires the "just, quick and cheap resolution of the real issues in the proceedings": Health Care Complaints Commission v Muthukrishna (No. 2) [2024] NSWCATOD 142 at [3].

1. Both parties accept that this is a costs jurisdiction, and that absent disentitling conduct, the Commission is entitled to its costs: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85].
2. The Tribunal considered five complaints brought by the Commission.

1. Complaint One was that the practitioner was guilty of unsatisfactory professional conduct under ss 139B(1)(a) and (l) of the National Law. There were six Particulars relied on, namely:

(1) on 17 October 2019, the practitioner failed to ensure Patient A had read, understood, completed and signed a consent form prior to commencing treatment;

(2) on 13 August 2020, the practitioner failed to obtain Patient A's informed consent prior to conducting a groin massage, and rib and chest massage;

(3) on 10 September 2020, the practitioner failed to obtain Patient A's informed consent prior to conducting a groin massage, and rib and chest massage;

(4) on 8 October 2020, the practitioner failed to obtain Patient A's informed consent prior to conducting a groin massage and a rib and chest massage;

(5) on 5 November 2020, the practitioner failed to obtain Patient A's informed consent prior to conducting a groin massage and a rib and chest massage;

(6) by his conduct in particulars 1 - 5, the practitioner breached clause 3.5(c) of the Chiropractic Board of Australia Code of Conduct (March 2014).

1. The practitioner admitted the facts in Particular 1, and denied the facts in Particulars 2 to 6.
2. The Tribunal found Particulars 1 and 6 (in part) established and Complaint One also established.

1. Complaint Two was that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law. There were four Particulars relied on, namely:

(1) on 13 August 2020, the practitioner performed a groin massage on Patient A in circumstances where appropriate diagnostic testing had not been undertaken to ensure the treatment was justified;

(2) on 8 October 2020, the practitioner performed a groin massage on Patient A in circumstances where appropriate diagnostic testing had not been undertaken to ensure the treatment was justified;

(3) on 8 October 2020, the practitioner performed a chest and rib massage on Patient A in circumstances where appropriate diagnostic testing had not been undertaken to ensure the treatment was justified;

(4) on 5 November 2020, the practitioner performed a groin massage on Patient A in circumstances where appropriate diagnostic testing had not been undertaken to ensure the treatment was justified.

1. The practitioner denied the facts alleged in all four Particulars.
2. For the reasons given in the Primary Decision, we found no Particulars established and therefore Complaint Two not established.

1. Complaint Three was that the practitioner was guilty of unsatisfactory professional conduct under ss 139B(1)(a) and/or (l) of the National Law. There were seven Particulars relied on, namely:

(1) on 13 August 2020, the practitioner conducted a rib and chest massage on Patient A in an inappropriate manner, in that he placed his hand underneath Patient A's T-shirt;

(2) on 10 September 2020, the practitioner conducted a chest and rib massage on Patient A in an inappropriate manner, in that he:

(a) placed his hand underneath Patient A's T-shirt;

(b) placed his hand underneath Patient A's bra;

(3) on 8 October 2020, the practitioner conducted a groin massage on Patient A in an inappropriate manner, in that he placed his hand underneath Patient A's shorts;

(4) on 8 October 2020, the practitioner conducted a chest and rib massage on Patient A in an inappropriate manner, in that he:

(a) placed his hand underneath Patient A's T-shirt;

(b) placed his hand underneath Patient A's bra;

(5) on 5 November 2020, the practitioner conducted a groin massage on Patient A in an inappropriate manner, in that he:

(a) placed his hand up Patient A's shorts;

(b) moved Patient A's underwear to one side and touched her labia majora;

(c) repeated the conduct in Particulars 5(a) and (b);

(6) on 5 November 2020, the practitioner conducted a chest and rib massage on Patient A in an inappropriate manner, in that he:

(a) placed his open hand underneath Patient A's T-shirt;

(b) touched Patient A's right breast;

(c) repeated the conduct in Particulars 6(a) and (b);

(7) by his conduct in Particulars 1 to 6, breached cl 9.2(a) of the Chiropractic Board of Australia Code of Conduct (March 2014) (Code of Conduct) in that he failed to maintain professional boundaries so that Patient A was not exploited physically or sexually.

1. The practitioner denied the facts in all seven Particulars.
2. For the reasons given in the Primary Decision, the Tribunal found Particulars 1 to 4 not established, Particulars 5, 6 and 7 established and Complaint Three itself established.

1. Complaint Four was that the practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law_._ There were two Particulars relied on, namely:

(1) the practitioner failed to make and keep adequately detailed records sufficient to facilitate the continuity of patient care in relation to Patient A, including records of:

(a) the consultations on 13 August 2020, 10 September 2020, 8 October 2020 and 5 November 2020, including any tests conducted and results thereof;

(2) by his conduct in Particular 1, the practitioner breached cll 9.4(a) and 9.4(b) of the Code of Conduct.

1. The practitioner admitted the facts set out in Particular 1, some of the facts set out in Particular 2 and admitted that he was guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law.
2. In the circumstances, the Tribunal found Complaint Four established.
3. Complaint Five was that the practitioner was guilty of professional misconduct under s 139E of the National Law. The Commission relied on the conduct set out in the Particulars of Complaints One to Four individually and cumulatively.
4. The practitioner denied Complaint Five but, for the reasons given in the Primary Decision, the Tribunal found Complaint Five established.

1. The starting point is that the Commission was successful in its application to the Tribunal. Therefore, in the usual course the Commission should have its costs.
2. As noted, the practitioner submitted otherwise, submitting that because discrete and substantial elements of the conduct complained of were not established, which took up a substantial part of the hearing of the matter. In those circumstances, it was appropriate to reduce costs to be recovered by the Commission, the practitioner submitting that the discount should be 50%.
3. As we have noted, the Commissions submitted that there should be no discount at all.
4. In relation to Complaint One, the Commission was successful, but only in relation to (in effect) two of the six alleged Particulars.
5. As to Complaint Two, the Commission was entirely unsuccessful.
6. In Complaint Three, which was the most substantive complaint, the Commission had a mixed success, with only three of seven Particulars being established.
7. Complaint Four was admitted.
8. As to Complaint Five, the Tribunal found that the established conduct the subject of Complaint Three alone was sufficiently serious to amount to a finding that professional misconduct was established.
9. As the Commission itself submitted, through its reliance on Allianz Australia Insurance Limited, unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed,
10. The Tribunal considers that Complaint Two is clearly severable, involving different subject matter to any other complaint, and that this warrants a deviation from the usual order that costs follow the event.
11. As to the Commission's mixed success in relation to Complaints One and Three, the Tribunal considers that there should be some modest discount for the Commission's lack of success.
12. However, the practitioner's submissions are overstated and the discount sought of 50% not warranted. As the Tribunal noted in Health Care Complaints Commission v Emery (No. 2) [2017] NSWCATOD 23 at [18]:

As the Court of Appeal noted in Harrington Estates [(NSW) Pty Ltd t/as Harrington Grove Country Club v Turner [2016] NSWCA 369 at [72]], exercising the discretion as to costs on an issue by issue basis can produce complexity and disputation. The Tribunal considers that in determining the proper costs, the appropriate approach is a broad-brush approach: Harrington Estates at [72]; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [18] - [19]).

1. The appropriate order is that the practitioner pay the Commission 90% of its costs as agreed or as assessed in accordance with the applicable costs legislation.

(1) The respondent is to pay 90% of the applicant's costs as agreed or as assessed in accordance with the applicable costs legislation.

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.

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.

[1] At [15] per White JA citing Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98 at [14] per White JA, Basten and Macfarlan JJA agreeing.