Costs - appellant from s 150 decision of Council entirely unsuccessful - no question of principle
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Costs - appellant from s 150 decision of Council entirely unsuccessful - no question of principle
Judgment (5 paragraphs)
[1]
REASONS FOR DECISION
The appellant, Dr David Kirby, appealed in respect of two decisions of the Dental Council of NSW (the Council or the respondent): a decision of 18 December 2015, and a decision of 12 February 2016.
In written reasons published on 28 April 2017 (Kirby v Dental Council of New South Wales [2017] NSWCATOD 64), the Tribunal dismissed Dr Kirby's appeals.
At pars [155] and [156] of the reasons for decision the Tribunal stated:
155 As a general rule, costs of proceedings before the Tribunal should follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
And the Tribunal noted that:
156 [As] Dr Kirby had been unsuccessful in obtaining relief against the Council,… the Tribunal proposes that he should pay the Council's costs of the proceedings.
Both parties were granted leave to file submissions on costs within 14 days, and could reply within a further 14 days.
The Council filed submissions on 10 May 2017. As the Council correctly submits:
1. The Tribunal has a discretionary power to make an order for costs under cl 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) (National Law).
2. 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].
3. In the exercise of that discretion, the Tribunal may, pursuant to s 60(4)(a) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) determine by whom the costs should be paid, and to what extent.
As at the time of preparing these reasons, no submissions had been received from Dr Kirby. Nor had any request been made for an extension of time in which to file submissions on costs. Thus, there were no materials before the Tribunal from Dr Kirby suggesting any reason why he should not be ordered to pay the Council's costs.
In the circumstances, and given the authorities binding the Tribunal sitting in this Division, the Tribunal considers that Dr Kirby should pay the Council's costs.
There remains to consider the application of the Council that Dr Kirby pay its costs in the sum of $46,138.68. In this respect, the Council relies on an affidavit of Ms Christine Campbell sworn 10 May 2017. That affidavit sets out how that figure is calculated, and attaches the tax invoices of the Council's counsel, the tax invoices costs of having the sound recording of the four day hearing transcribed, and the tax invoices for the costs of photocopying and otherwise "assembling" documents for the hearing.
No amount is claimed for the Council's legal officers.
Ms Campbell states in her affidavit that, during the hearing, the parties' legal representatives agreed to share the costs of having a transcript prepared. Ms Campbell states that, despite this agreement, the Council, which has incurred the cost of the transcribing, has not received any contribution from Dr Kirby.
[2]
Consideration
The "guiding principle" for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36(1). The Tribunal must seek to give effect to the guiding principle when it exercises any power given to it by this Act: s 36(3)(a).
In addition, the practice and procedure of the Tribunal is to be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: s 36(4).
We consider it would be disproportionate and contrary to the guiding principle to require the Commission to have its costs assessed. This would add further delay and further expense to what has already occurred. We note that the Council makes no claim for its internal legal costs, and that Dr Kirby has not provided any submissions on this, or any other issue, in relation to costs.
Consistent with the proportionality principle in s 36(4), (see Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48 at [27]) the appropriate course is for the Tribunal, on the application of the respondent, to fix the costs to be paid. We note that where costs are awarded by the Tribunal, the Tribunal may determine by whom and to what extent costs are to be paid: s 60(4) of the NCAT Act.
We are aware that the Appeal Panel of the Tribunal recently considered in 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 whether it should make a fixed sum costs order rather than ordering that costs be as agreed or assessed. At [39]ff the Appeal Panel stated:
39. The principles concerning when a Court might make a gross sum costs order are set out in a number of recent Court of Appeal decisions, including: Hamod v State of New South Wales [2011] NSWCA 375 at [813]ff; eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 at [8]ff and [30]; and Kostov v Zhang (No 2) [2016] NSWCA 279 at [19]ff.
40. These principles, relevantly adapted to the circumstances of the Tribunal, include:
(1) A fixed sum costs order involves a departure from the usual process by which costs are assessed in accordance with the statutory procedures now relevantly found in the Legal Profession Uniform Law Application Act 2014 (NSW) (especially Pt 7 dealing with "ordered costs") and the Legal Profession Uniform Law (NSW), eInduct Systems at [8];
(2) A fixed sum costs order may be appropriate where:
(a) the sum of costs in question is relatively modest, eInduct Systems at [30];
(b) a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment, Hamod at [813], [816] and [817], eInduct Systems at [30];
(c) the assessment of costs would be protracted and expensive, Hamod at [813] and [817]; and/or
(d) the case was complex, Hamod at [815]-[817];
(3) Sections 36(1) and (4) of the NCAT Act (which can be seen as equivalent to those in ss 56(1), 57(1)(d) and 60 of the CP Act) suggest that the following factors merit particular consideration:
(a) the relative responsibility of the parties for the costs incurred;
(b) the degree of any disproportion between the issue litigated and the costs claimed;
(c) the complexity of the proceedings in relation to their cost; and
(d) the capacity of the unsuccessful party to satisfy any costs liability, Hamod at [816], Kostov at [22].
(4) An order for fixed sum costs should be based on an informed assessment of the actual costs, having regard to the information before the Tribunal. Furthermore, the approach taken to estimate the costs must be logical, fair and reasonable. This may involve an impressionistic discount of the costs actually incurred in order to take into account the contingencies that would be relevant in any formal costs assessment, Hamod at [820];
(5) The power to make a fixed sum costs order should only be exercised when the Tribunal considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available, Hamod at [813], Kostov at [23].
We note that:
1. As to the relative responsibility of the parties for the costs incurred, this was Dr Kirby's appeal, and he has been wholly unsuccessful;
2. As to the degree of any disproportion between the issue litigated and the costs claimed, the Council makes no claim for the costs of its own legal officers. And, as we recorded in the principal reasons for decision, Dr Kirby filed four volumes of materials numbering over 1,200 pages which materials included some 29 affidavits sworn by him. These affidavits dealt with a range of matters and were in fact a combination of factual evidence and submissions. As we noted, Dr Kirby's affidavit of 27 July 2016 alone, described by Dr Kirby as "Detailed Reasons for Suspension", including exhibits, was almost 100 pages in length. This affidavit was also repetitious, in that it repeated material already stated by Dr Kirby in previous affidavits. Obviously this material had to be considered by the Council. In addition, the Council itself, prepared and filed three volumes of material.
3. As to the complexity of the proceedings in relation to their cost; at least a third of the time of the hearing, if not more, and a similar proportion of the parties' submissions, dealt with the apprehended bias point, a matter on which we found against Dr Kirby.
4. The relevant invoices relied on by the Council have been provided to the Tribunal. Accordingly, the Tribunal is in a position to know the actual costs claimed.
5. There is no evidence or submissions before us on the capacity of Dr Kirby to satisfy any costs liability.
In summary, the relevant invoices relied on by the Council have been provided to the Tribunal; no amount is claimed for the Council's legal officers; and no submissions have been received from Dr Kirby submitting any reason why he should not be ordered to pay the quantum of costs sought by the Council.
In those circumstances, we consider that Dr Kirby ought to pay the costs of the Council in the amount sought, which are limited to the costs of the Council's counsel, transcription expenses and photocopying and related costs, and do not include the costs of the Council's own legal officers.
[3]
Order
Therefore, the orders of the Tribunal are:
1. The appellant is to pay the respondent's costs in the sum of $46,138.68.
2. The sum of $46,138.68 is to be paid on or before 7 July 2017.
[4]
Addendum
After these reasons had been prepared, the Tribunal was notified by the Registry that Dr Kirby had filed submissions on costs 6 June 2017. We were further notified, given that the submissions had been filed after the timetable set out in the principal reasons for decision, that the Council opposed Dr Kirby being granted leave to rely on those submissions.
Given the lateness of the submissions, and the fact that these reasons had already been prepared, we have had no regard to Dr Kirby's submissions.
Any application for a stay of our order can be made in the usual course to the Supreme Court if and when Dr Kirby appeals.
[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
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Decision last updated: 09 June 2017