Jayswal v Medical Council of NSW

NCAT Occupational|2022-10-28|Before: Jennifer Boland AM

Introduction

These reasons are in respect of an application by Dr Vishal Jayswal (the practitioner) for an order that the Medical Council of New South Wales (the Council) pay his costs incurred in an appeal brought under s 159 and s 159B of the Health Practitioner Regulation National Law (the National Law).
On 17 October 2022 I made orders by consent setting aside a suspension of the practitioner's registration which had been imposed by the Council in proceedings under s 150C of the National Law. On that occasion, also by consent, I also made an order dismissing the practitioner's appeal and setting out a time-table for either party to make any application for costs within 14 days. I also made an order for any party opposing costs to file and serve a response within 28 days of the order.
On 28 October 2022 the Tribunal received written submissions from the practitioner's counsel together with an affidavit of the practitioner sworn or affirmed on 28 October 2022 (the jurat to the affidavit has not been completed).
A response and written submissions were received from the Council on 11 November 2022.
The Council oppose the practitioner's application for costs of the appeal. However, if a costs order is made, the Council submit that order should only apply to costs after the stay application. The Council's primary position is that each party should bear their own costs of the appeal.
I pause to note at this point, the costs which I am determining do not include any costs associated with the practitioner's stay application. Those costs were subject of specific orders by A/Judge Coleman SC in his reasons for decision (see Jayswal v Medical Council of New South Wales [2022] NSWCATOD 53 published on 20 May 2022).
For the reasons which follow, I have determined that the Medical Council of New South Wales should pay the practitioner's costs of the appeal excluding the costs of the Stay Appeal.

Procedural History

In March 2021 the practitioner notified the Council of criminal charges laid against him under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). On 20 April 2021 the practitioner entered a plea of "not guilty" in the Local Court, Wollongong.
On 29 October 2021 delegates of the Council conducted proceedings under s 150 of the National Law and imposed conditions on the practitioner's registration.
On 29 November 2021 different delegates of the Council conducted proceedings under s 150C of the National Law against the practitioner and suspended his registration. This occurred in circumstances where the practitioner was charged with criminal offences arising out of asserted conduct by the practitioner including conduct concerning his wife and child.
On 23 December 2021, the practitioner filed an appeal under s 159 and s 159B of the National Law. On the same day he filed an application for a stay of his suspension pending the hearing and determination of his appeal. On 2 February 2022 the practitioner fled an amended application for an interim stay and an amended appeal. On 10 March 2022 he filed a further amended appeal form.
The stay application was heard on 1 April 2022 and the presiding Judge's reasons were reserved. Following the publication of the decision of the New South Wales Court of Appeal in the matter of Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 on 14 April 2022 his Honour sought further submissions from the parties. On 12 May 2022 the Tribunal ordered a stay of the practitioner's suspension pending the hearing and determination of his appeal (see Jayswal v Medical Council of New South Wales [2022] NSWCATOD 53.
On 6 June 2022 atter amendment to Court Attendance Notice, the presiding Magistrate, Ong LCM, found the practitioner guilty of a single charge of intimidation. No conviction was recorded, and a community release order was imposed for a period of 18 months.
On 6 October 2022 the practitioner appealed the Magistrate's decision to the District Court of New South Wales. Haesler DCJ made orders that "Conviction Appeal Upheld", "Set aside the conviction and all other orders of the Court below". His Honour made an Apprehended Domestic Violence order for the protection of the practitioner's wife for a period of 18 months.
On 12 October 2022 the parties appeared in the Health Directions List and sought the making of orders by consent. The orders provided for the practitioner's suspension to be set aside, and for the appeal to be dismissed.

The relevant law

Clause 13 of Schedule 5D sets out the power of the Tribunal to make costs orders in disciplinary proceedings and appeals. It 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.
The authorities on costs under Clause 13 of the National Law principally deal with cost applications at the conclusion of disciplinary proceedings. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342, albeit in the context of disciplinary proceedings, the Court explained: As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.
Similar principles are espoused in Qasim v Health Care Complaints Commission [215] NSWCA 282 at [85] and in Health Care Complaints Commission v Do [2014] NSWCA 307 at [51].

The practitioner's affidavit and submissions in support of his application

The practitioner's affidavit recites the procedural history summarised above.
Counsel's submissions advance a number of bases on which reliance is placed to support the making of a costs order. First, it is submitted there is a generally accepted understanding that "costs follow the event". Second, notwithstanding the Council consented to setting aside the suspension, the appeal was necessary because of the suspension decision. Third, the criminal charges and conviction were ultimately set aside. Fourth, reference is made to the principles espoused in Pridgeon that s 150 of the National Law is an "emergency power" which should be invoked where the circumstances are urgent. Fifth, at the time of the s150C proceedings that "the presumption of innocence loomed large".

The HCCC's response and submissions

I commence by noting that unlike the practitioner, the Council did not file any affidavit material in support of its application for costs.
The Council's submissions proceed on the basis that I should reject the practitioner's submission that he was wholly successful in these proceedings. The submissions advance the proposition that weight should be given to the practitioner's conduct and that conduct should disentitle him to costs.
It is first asserted that I should give weight to the practitioner's previous conduct (see s 41O of the National Law). Reference is made to the material filed in support of the stay application. I accept in 2021 the practitioner underwent a billing audit, that he entered into an agreement with the Pharmaceutical Regularity Unit to back pay monies to the Department. I also note the practitioner underwent a performance assessment which found he was unsatisfactory in areas including medical records. These were matters the delegates were required to take into account in determining the s 150 application.
The submissions also refer to the practitioner's conduct in respect of a s150J notice. The reference in the submissions is to a request for information under s 164G of the National Law dated 29 September 2021 with a due date of 1 October 2021 (footnote 7 Tab 9). The submissions assert that the practitioner failed to comply with the s 150J notice. I observe that the Council's brief of evidence (Tab 19) contains a notice under s 150J of the National Law dated 25 October 2022 The notice required the practitioner to produce by 29 October 2022 "Any document in your possession or which you are able to obtain, regarding the outcome of these court proceedings, including but not limited to (i) a final copy of Agreed Facts, if any; (ii) judgment of the Local Court, if any; (iii) notice of court result from the Local Court registry and The Po9lice Brief of Evidence".
The submissions assert the practitioner failed to comply with the notice and that the Council otherwise obtained the Police Brief of Evidence.
I note, as conceded in the Council's submissions, that the practitioner's lawyers wrote to the Council on 28 October 2021 and advised that the hearing scheduled for 25 October had been adjourned to 6 June 2022 and "as the matter has yet to be finalise, Dr Jayswal is currently unable to comply with the notice".
The submissions very fairly extract the reasoning of Barrett AJ in Kirby v Dental Council of New South Wales [2018] NSWSC 1869 at [93]-[96]. There his Honour noted certain provisions of the National Law abrogate the common law privilege against self-incrimination and further that nothing is said in relation to s 150J. His Honour explains "There is, on the face of the enactment, a demonstrated absence of legislative intention to displace either of these common law privileges in the s 150J context".

Consideration.

I accept that prima facie the practitioner has been successful because his suspension has been set aside. This outcome is, having regard to the authorities, a cogent reason to make an order for costs in his favour.
I do however take into account at the time of the delegates' decision under s 150C that there was material before them of a concerning nature asserting domestic violence, and significantly, at time the suspension was imposed the delegates did not have the benefit of the decision in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60. I accept since that decision, emphasis must be placed by the Council (and the Tribunal on appeal) on the presumption of innocence and for the power under s 150 (or s150C) to be invoked in an urgent situation.
I have also taken into account that the Council has minimised costs in this matter by promptly agreeing to the consent orders I made on 17 October 2022.
I do not place significant weight on the asserted failure by the practitioner to comply with the notice under s 150J. His solicitors promptly relied to the Council on receipt of the notice and explained that the hearing before the Local Court had been adjourned. The practitioner was entitled, as was recognised at the s 150C hearing, to invoke his common law privilege against self- incrimination.
I find the matters to be finely balanced, but ultimately have reached the conclusion that the practitioner should be entitled to his costs of the appeal (excluding the Stay application costs) noting that provision for those costs were included in separate orders, and with a limited time-table, in the orders of Acting Judge I R Coleman SC and do not form part of this application. My orders will provide for the costs to be paid as agreed between the parties, and failing agreement as assessed under the Legal Practitioner Uniform Law Assessment Act 2014 (NSW)

ORDERS 1. Medical Council of New South Wales is to pay the costs of the appellant as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW) excluding the costs of the Stay Application.

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: 18 November 2022

Health Practitioner Regulation National Law Legal Profession Uniform Law Application Act 2014(NSW)

Legal Practitioner Uniform Law Assessment Act 2014(NSW)

At a glance

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