Kollias v Pharmacy Council of NSW

The Council's submissions

1. In summary the Council seeks an order that the appellant pay its costs of his unsuccessful stay application, and that otherwise there be no order as to costs.
2. Alternatively, the Council submits that there should be no order as to costs.
3. In relation to the stay application, the Council submits that: 1. on 4 April 2024, after finding that the Practitioner's grounds of appeal were barely arguable and that the balance of convenience was in the Council's favour, the Tribunal refused the Practitioner's stay application and reserved the costs of the application: Kollias v Pharmacy Council of New South Wales [2024] NSWCATOD 49; 2. the Council was wholly successful in this regard. The Council did not act unreasonably in opposing the appellant's stay and merits review applications; 3. accordingly, costs should follow the event.
4. In relation to the appeal proper, the Council submits that neither party was wholly successful, and that it did not act unreasonably in opposing both the stay application and the appeal, particularly in light of concessions made by the appellant in relation to his conduct. The Council says that there were substantial developments in the appellant's evidence between the s 150 hearing and the appeal hearing, requiring Tribunal to test his evidence.
5. The Council further submits that it was open to the appellant to seek a review application under s 150A of the National Law before the Council given the significant change and progress in his evidence, a course the Council submits would have been less costly.

The appellant's submissions in reply

1. These submissions deal with two issues, the costs of the stay application and the costs of the s 159 appeal.
2. In relation to the stay application, the appellant submits that 1. the stay application was argued for the appellant on the basis that there was suitable protection pending the determination of the appeal by reason of the PSU's orders of 7 December 2023 concerning drugs of addiction and cannabidiol (and that it could not therefore be demonstrated that an order for suspension was necessary at the time of the s 150 hearing) and that the Tribunal could impose conditions when staying the appellant's suspension; 2. the Council failed on the stay application in making out its central contention that the appellant posed a risk, and that the risk could only be ameliorated by the imposition of conditions which the Tribunal had no power to order (and therefore the stay ought not be granted). Hennessy ADCJ rejected the Council's submission that the Tribunal did not have power to impose conditions: Kollias v Pharmacy Council of New South Wales [2024] NSWCATOD 49 (Stay Decision); 3. the Tribunal at the hearing of the substantive appeal ultimately determined that the PSU's orders of 7 December 2023 were suitably protective and was persuaded that an order for suspension was not necessary (being one of the central contentions of the s 159B appeal). Although the s 159B appeal was not determined, it is appropriate in the discrete circumstances of this case that the outcome of the final hearing influence the Tribunal's order concerning the costs of the stay hearing.
3. In relation to the costs of the s 159B appeal, 1. the Council's submission that until the second day of the hearing, the practitioner sought to have his suspension set aside with no protective orders under the National Law is wholly incorrect; 2. the appellant has always acknowledged the seriousness of the allegations raised and conceded that aspects on his conduct were unacceptable; 3. while the Council was entitled to test the appellant's evidence, his cross examination was unnecessarily protracted. The Council's reliance upon unsupportive expert evidence and Ms Nicholson's evidence sought to change the hearing into a determination of the substantive complaint rather than a consideration by the Tribunal of whether action under s 150 was warranted. The Council's chosen course of conduct increased the length of the hearing and the costs incurred by the appellant; 4. the implication that had the appellant pursued a s 150A application the Council would have agreed to lift his suspension and imposed conditions cannot be reconciled with the Council's conduct at the hearing (at a time when it was fully apprised of the steps the appellant has taken since the s150 hearing). The prospect of the Council agreeing to lift the suspension was plainly remote. The only prospectively reasonable option for the appellant was to pursue an appeal before the Tribunal as an independent review body. The appellant did in fact make a s 150A application on 19 March 2024 but withdrew it on 5 April 2024, in part because of the Council' s advice that asking the Council to make a decision under s 150A or s 150C of the National Law would "likely have implications for your client's stay application and substantive appeal." 5. the Council's submission that "neither party was wholly successful in the Merits Review proceedings" mischaracterises the outcome. The appellant successfully sought and achieved the lifting of his suspension to permit him to practice, subject to conditions.
4. In conclusion, the appellant submits that submitted that it would be appropriate to order the Council to pay the costs of the appellant's appeal, including the stay application). Alternatively, the appellant seeks an order that the Council not be entitled to recover its costs of the stay proceedings, and that the Council pay his costs of the appeal hearing.

Preliminary Issue

1. Neither party opposed me determining costs on the papers. As I am satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submissions, I dispense with a hearing: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2).
2. In this respect, I note that 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.
3. That principle applies equally to proceedings in the Occupational Division.

Relevant principles

1. This is a costs jurisdiction. As Meagher JA stated in Qasim v HCCC [2015] NSWCA 282 (McColl and Ward JJA agreeing): 84 Clause 13 in Sch 5D of the applicable National Law relevantly provided: (1) A 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. 85 In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46] - [48] this court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (emphasis added)
2. And, in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] - [44], Emmett JA (Meagher JA and Beech-Jones J agreeing) stated: 42 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. 43 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). 44 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.
3. Finally, in BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186, the Appeal Panel at [67] said the relevant principles included the following: (1) the starting point is that a successful party should be entitled to an order for costs in his favour; (2) an award of costs is by way of an indemnity and not as punishment; (3) there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party; (4) the factors to be considered are not to be confined as to do so would constrain the general discretion; (5) the relative success of the parties on different issues and the time taken to determine them may be relevant; (7) the proper exercise of the discretion requires a decision maker to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary and capricious. (emphasis added)

Consideration

1. I do not accept the Council's submission that the appellant was not wholly successful in his appeal. Clearly, he was and, prima facie, he is entitled to his costs.
2. However, I consider the stay application is sufficiently a "different Issue" which should be considered separately.
3. Here the appellant was clearly unsuccessful, the grounds of the stay application being described by Hennessy ADCJ in the Stay Decision at [81] as "barely arguable". Accordingly, I do not consider his costs should include the costs of his stay application. On the contrary, here the Council was entirely successful, and it follows in my view that the Council should have its costs of defending the stay application.

Orders

1. The Appeal Panel makes the following orders: 1. A hearing is dispensed with. 2. The respondent is to pay the appellant's costs of the appeal, not including the appellant's costs of his stay application. 3. The appellant is to pay respondent's costs of the appellant's stay application. 4. All costs are to be paid as agreed or as assessed in accordance with the application costs legislation.

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: 10 December 2024