Kamal v Medical Council of New South Wales

Dispensing with a hearing

1. The Council made no submissions in opposition to an order pursuant to s 50(2) of the CAT Act dispensing with a hearing of the costs application.
2. The Tribunal is satisfied that it has afforded the parties an opportunity to make submissions in opposition to the making of an order pursuant to s 50(2) of the CAT Act in accordance with s 50(3)(a) of the Act. The Tribunal is satisfied in accordance with s 50(2) of the CAT Act that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. The Tribunal will accordingly make an order pursuant to s 50(2) of the CAT Act dispensing with a hearing of the Council's application for costs.

Jurisdiction

1. The Council has not identified the source of the power of the Tribunal as presently constituted to determine its costs application. Such power is not in doubt and requires only brief identification.
2. Clause 13 of Sch 5D to the National Law provides the power of the Tribunal to award costs. Clause 13(1) provides that the Tribunal may order a health practitioner at an "inquiry or appeal before the Tribunal" to pay the costs to another person as decided by the Tribunal. Clause 1(2) of Sch 5D provides that a reference in Sch 5D "however expressed" to proceedings before the Tribunal "is a reference to proceedings before the Tribunal under this law".
3. The Practitioner having withdrawn his appeal against the Council's s 150 decision, it is arguable that the present application is not with respect to the costs of an appeal. Section 165B of the National Law is concerned with the "constitution of [the] Tribunal for complaints, applications and appeals". Section 165B(5A) provides that, when constituted to make an "ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013" the Tribunal is to be constituted by the Tribunal List Manager or, relevantly for present purposes, a member who, pursuant to s 165B(2)(a) is a "senior judicial officer". "Senior judicial officer" is defined in s 165(b) of the National Law to include a judge of the District Court. Section 4(1)(b) of the CAT Act provides that "a decision concerning the awarding of costs" is an ancillary decision.
4. The Tribunal is satisfied that the Council's application is within its jurisdiction, and able to be determined by the Tribunal as currently constituted.

The Council's submissions

1. The Council submitted (at par 3), accurately, that it sought its costs of the stay application in its written submissions in opposition to that application. The Practitioner has accordingly been on notice during the stay proceedings that, if he was unsuccessful, the Council would be seeking an order for costs.
2. The Council submitted (at par 5) that as a "general rule, costs follow the event": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 ("Philipiah"); Qasim v Health Care Complaints Commission [2015] NSWCA 282; Health Care Complaints Commission v Do [2014] NSWCA 307. The Council further submitted that "impecuniosity", if the Practitioner sought to rely upon it, had not been proven, and would not justify departing from the general rule in any event: Philipiah at [42]; Hanna v Medical Council of NSW [2019] NSWCATOD 139.
3. The Council submitted (at par 6), that there had been "no disentitling conduct" by it so as to displace the presumption that, as a successful party, the Council was entitled to receive its costs: Health Care Complaints Commission v CSM [2016] NSWCATOD 125; Health Care Complaints Commission v Brush (No 2) [2015] NSWCATOD 154.
4. The Council submitted (at par 7) that the Practitioner had been unsuccessful in his stay application and that nothing emerging from the material before the Tribunal could justify departure from the general rule that the Council should be compensated for its costs reasonably incurred on a party/party or ordinary basis.
5. The Council sought (at par 8) an order that its costs be fixed in the sum of $7,977.85 in reliance upon the affidavit of Leeantha Achary sworn 14 March 2023 in support of that application. That figure was arrived at by discounting by 25% the costs and disbursements of the Council of $10,637.15, reflecting what was submitted to be an appropriate discount for being spared the effort and expense of having to assess costs. Those costs were itemised in the affidavit of Ms Achary and, with respect to disbursements, evidenced by source documents.
6. There are two issues to be determined. The first is whether the Council is entitled to an order for costs. If the first question is answered in the affirmative, the issue becomes whether a fixed sum costs order should be made or whether costs as agreed or assessed on a party/party basis should be ordered.

Dispensing with a hearing

1. The parties have been afforded an opportunity to make submissions in opposition to the making of an order dispensing with a hearing of the costs application. No such submissions have been filed. The Tribunal is satisfied that the issues for determination can be adequately dealt with in the absence of the parties by considering the written submissions of the Council and the reasons for its decision in the stay proceedings, and will make an order pursuant to s 50(2) of the CAT Act dispensing with a hearing. The Tribunal will determine the costs application after proper, genuine and realistic consideration of the merits of the case: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9].

Whether the Council is entitled to an order for costs

1. As the decision in Philipiah makes clear, in proceedings of the present kind, the general rule is that costs should follow the event. The outcome of the "event" in this case is not in doubt, and did not involve mixed success and failure on the part of the Council. The Council was wholly successful in the proceedings which were determined on 27 January 2023. The Practitioner was wholly unsuccessful in those proceedings. In those circumstances, there is a presumption that the Council is entitled to its costs of the stay proceedings.
2. There is no automatic rule that costs always follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 ("Oshlack") at [40]-[41]. A successful party may be denied some part or all of its costs. An unsuccessful party may be awarded costs, though exceptional circumstances must exist before a successful party is deprived of costs and required to pay an unsuccessful opponent's costs: Arian v Nguyen [2001] NSWCA 5.
3. Nothing which emerged during the course of the stay hearing, or which the Tribunal has discerned from the evidence before it or the submissions of the Council could justify an order requiring the Council to pay the unsuccessful Practitioner's costs of the stay application.
4. Misconduct or some form of impropriety on the part of the successful party is a basis for departure from the usual rule: Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873; Oshlack at [69]; Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; 288 ALR 385. The conduct may relate to the litigation, or to the circumstances leading up to the litigation: Oshlack at [69].
5. Nothing found by the Tribunal in the stay proceedings or emerging from the affidavit of Ms Achary or the submissions of the Council provides a basis for inferring misconduct or impropriety in any manner on the part of the Council. If entitled to an order for costs, the Tribunal would not exercise its discretion not to award those costs in the circumstances of this case.
6. It is relevant that the stay proceedings only occurred because, as was his right, the Practitioner made an application for a stay of the s 150 decision of the Council pending the determination of his appeal against that decision pursuant to s 159 and, more relevantly, s 159B of the National Law.
7. The Council properly, and successfully, resisted the Practitioner's stay application. The Tribunal is satisfied that, apart from any other duty which the Council may have had to do so, it was in the public interest that the Council resist the Practitioner's stay application.
8. Courts have consistently refused to decline to make an order for costs where one is justified on the basis that the party against whom an order will be made is, or may be impecunious: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25.
9. Although the evidence of the Practitioner in the stay proceedings suggested that refusal of a stay would cause him, and his family, significant financial hardship, there is no evidence that he is, or may be impecunious. Even if the Practitioner had demonstrated that he was impecunious, in the circumstances of this case, he would need to have demonstrated compelling circumstances with respect to his partner and/or children before the Tribunal would have been likely to decline to make a costs order against him.
10. The authorities establish that a party seeking departure from the usual rule bears the onus of establishing a basis for such departure: Waterman v Gerling (Costs) [2005] NSWSC 1111. No such basis emerges from the material before the Tribunal in this case.
11. It is uncontroversial that the rationale of awarding costs is to partially reimburse the successful party for costs incurred, and that the intention is not to punish the unsuccessful party, although a costs order may have such an impact financially: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59.
12. The Tribunal is comfortably satisfied that the Council is entitled to an award of costs. As the Tribunal's reasons for dismissing the Practitioner's stay application confirm, in addition to its success, the Tribunal was materially assisted by the Council's involvement in the proceedings.

Whether the Council's costs should be quantified or subject to agreement or assessment

1. Clause 13(3A) of Sch 5D of the National Law empowers the Tribunal to "fix the amount of costs itself" in lieu of ordering that costs be assessed. Section 98(4)(c) of the Civil Procedure Act 2005 (NSW), which is concerned with "Courts powers as to costs", empowers New South Wales Courts to make an order "to the effect that the party to whom costs are to be paid is to be entitled to … a specified gross sum instead of assessed costs".
2. In view of the similarity of the terms of the relevant statutory instruments, the decisions of Courts with respect to the operation of s 98(4)(c) of the Civil Procedure Act are instructive for present purposes.
3. In Bechara trading as Bechara and Company v Bates [2016] NSWCA 294, the Court of Appeal stated (at [12]-[15]) that the considerations with respect to whether to make gross lump sum costs orders included: 12. The power to award a lump sum should only be exercised when the Court considers that it can do so fairly between the parties, and where an appropriate sum can be determined from the available material … . 13. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings … . 14. A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order … . 15. The courts have typically applied a discount in assessing costs on a gross sum basis … ."
4. Also relevant is whether the costs sought are disproportionate to the importance and complexity of the subject matter in dispute: Hamod v New South Wales [2011] NSWCA 375. The purpose of a gross sum costs order is to avoid the expense, delay and aggravation arising out of costs assessment: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 1250. Although a "broader brush" approach can be adopted, as the discretion to make a gross sum costs order must be exercised judicially, a Court must arrive at a figure that it is confident does justice between the parties, even though the full assessment process has not been undertaken: Penson v Titan National Pty Limited (No 3) [2015] NSWCA 121.
5. Similarly, a lump sum costs order should only be made when the Court has sufficient confidence to arrive at an appropriate sum on the materials available: Colquhoun v District Court (NSW) (No 2) [2015] NSWCA 54. More than a bare statement of total costs and disbursements is required: Tim Barr Pty Ltd & Anor v Narui Gold Coast Pty Ltd [2011] NSWSC 11. That requirement has been amply met in this case.
6. In the present circumstances, and particularly as the Tribunal is not a Court and, subject to the rules of natural justice, may pursuant to s 38(2) of the CAT Act inform itself in "such manner as it thinks fit", there is no need for an expert opinion as to the reasonableness of the costs sought by the Council. The Practitioner has had the opportunity to make submissions with respect to the reasonableness of the costs sought by the Council. Albeit not an itemised bill of costs and disbursements, the Council has provided evidence which enables the Tribunal to understand and evaluate the basis of the lump sum costs claimed by it.
7. The Tribunal is satisfied that it is appropriate to make a fixed sum costs order. The reasons for doing so are, essentially: 1. the Tribunal can do so "fairly"; 2. an appropriate sum can be determined from the available material; 3. the conduct of the Council has not unnecessarily contributed to the costs of the proceedings; 4. the Council's costs are not disproportionate to the result of the proceedings; 5. to the extent that a "broad brush" approach is taken to the assessment of the Council's costs, in this case, the brush is not particularly "broad" having regard to the detail of the sum sought by the Council; 6. consistent with authority, the Council invited the Tribunal to apply a discount which is reasonable in all the circumstances; 7. the costs are not disproportionate to the importance of the stay proceedings; 8. having regard to the quantum of the costs sought by the Council, the expense, delay and aggravation arising out of costs assessment would be unjustified.
8. In her affidavit, Ms Achary referred (at par 7) to her attendance at the hearing of the stay application on 22 December 2022 to instruct Counsel. The sum of $668.40 claimed for such attendance was calculated in accordance with the hourly charge out rate of the Crown Solicitor's Office for solicitors employed at Ms Achary's grade. An hourly sum of approximately $335.00 for a solicitor instructing Counsel in an application such as the stay application in this case was in the Tribunal's view reasonable, and the time charged conservative.
9. The disbursements claimed by the Council ($9,968.75) comprised Counsel's fees in that sum. The Council's retention of experienced and competent Counsel to resist the Practitioner's stay application was reasonable having regard to the importance of the issues at stake, and the public interest in the Practitioner's stay application being appropriately resisted. Counsel's itemised memorandum of fees is consistent with the documentation which has been before the Tribunal, and the time which might reasonably have been taken by Counsel to prepare such documentation. The Tribunal notes that Counsel's fee for the hearing of the stay application on 22 December 2022 was very modest, and further notes Counsel's election to only charge for half the day of the hearing, when Counsel would have been entitled to charge for the whole day. In the Tribunal's opinion, this further reflects the reasonableness of Counsel's charges.
10. The Tribunal is satisfied that the sum sought by the Council is appropriate in all the circumstances.

Orders 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing of the costs application by the Medical Council of New South Wales. 2. Dr Md Abu Hena Mostafa Kamal is ordered to pay the costs of the Medical Council of New South Wales of the stay application fixed in the sum of $7,977.85.

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: 07 June 2023