Larter v Paramedicine Council of New South Wales

NCAT Occupational|2023-06-29

reasons for decision

In the decision of the Tribunal published on 7 February 2023 (Larter v Paramedicine Council of NSW [2023] NSWCATOD 12), the Tribunal: 1. dismissed the appeal brought and prosecuted by the Appellant pursuant to s 159B of the Health Practitioner Regulation National Law (NSW) ("the National Law") against the suspension of his registration on 17 September 2021 as a registered practitioner; 2. dismissed the appeal brought and prosecuted by the Appellant under s 159 of the National Law pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"); 3. pursuant to s 159C(1)(c) of the National Law, set aside the decision of the Paramedicine Council of New South Wales ("the Paramedicine Council") on 14 June 2022 ending the suspension of the Appellant's registration and imposing conditions on his registration in respect of the appeal by the Appellant challenging the imposition of conditions on his registration, but made a decision to preserve the ending of his suspension as explained at [117] and [118] of the reasons.
Following the publication of the reasons, directions were issued inviting the parties to make submissions as to the question of costs. The parties were also requested to address the question of whether that issue could be adequately determined in the absence of the parties by considering the submissions and materials lodged or provided to the Tribunal.
Each of the parties then filed detailed written submissions. The Appellant did not address the question of the appropriateness of determining the matter on the papers, but appears to have reserved "the right" to add to the submissions orally. The Appellant did not address any reasons as to why it is not appropriate to dispense with a hearing on the issue of costs.
The Respondent submitted that the issues can be adequately determined in the absence of the parties by considering the submissions on the materials lodged or provided to the Tribunal.
The Tribunal has routinely considered applications for costs on the papers and without a hearing. Such an approach is considered to be consistent with the guiding principle, namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings as set out in s 36(1) of the CAT Act. Where a further hearing would unnecessarily increase the costs of conducting finalisation of an appeal with further delay, the guiding principle supports a determination of the issue on the papers.

Brief Chronology

I set out briefly the chronology of events: 1. On 17 September 2021, the Appellant's registration as a paramedic was suspended by the Paramedicine Council pursuant to s 150 of the National Law. 2. On 15 October 2021, the Appellant lodged an external appeal against the suspension of his registration in respect of which there were amended grounds of appeal filed on 5 August 2022, referred to in the earlier reasons of the Tribunal at [5], which then included an appeal pursuant to s 159B of the National Law ("the suspension appeal"). 3. On 14 June 2022, the Paramedicine Council ended the suspension of the Appellant's registration and imposed conditions on his registration as a paramedic under s 150C of the National Law. The Appellant was advised of this outcome by the Paramedicine Council on 20 June 2022. 4. On 12 July 2022, the Appellant lodged an external appeal against the conditions imposed on his registration ("the conditions appeal"). 5. As part of the conditions appeal, the Appellant sought orders that the "conditions imposed upon the Appellant be expunged from the online register of practitioners forthwith". 6. The Appellant did not appeal against the decision of the Paramedicine Council ending his suspension on 14 June 2021. 7. The suspension appeal in reliance on s 159B of the National Law was pursued by the Appellant with a view to having the suspension set aside as having no effect from the date of the Paramedicine Council's original determination on 17 September 2021. This is apparent from the Appellant's amended notice of appeal of 5 August 2022, the submissions by the Appellant in the substantive appeal, and as confirmed by Senior Counsel for the Appellant on the hearing of the applications for costs. 8. The suspension appeal in reliance on s 159 of the National Law was prosecuted by the Appellant in circumstances where the indorsement on the Appellant's registration, the suspension of his registration, was removed from the public record as a result of a decision of the Paramedicine Council on 14 June 2022. The effect of the removal of the Appellant's suspension from the public record did not alter the fact and legal effect of the suspension by the Paramedicine Council for the period 17 September 2021 to 14 June 2022. 9. The Appellant was wholly unsuccessful in his suspension appeal in reliance on s 159B of the National Law. 10. The Appellant's suspension appeal in reliance on s 159 of the National Law was dismissed pursuant to s 55 of the CAT Act in the context of the observations by the Tribunal at [94] of the reasons and, in particular, there being no utility in determining the appeal; there remained no public record of the suspension and changed circumstances; and any order under s 159C in respect of the s 159 appeal based on the evidence before the Tribunal in February 2023 would not without more operate to affect the validity of the Paramedicine Council's original decisions. 11. Further, the Tribunal concluded that any orders sought under s 159 of the National Law would be directed at a suspension decision which was no longer operative.

Parties' Claims in respect of Costs

The Appellant seeks orders pursuant to rule 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) and clause 13 of Schedule 5D of the National Law that: 1. The Respondent pay the Appellant's costs of the suspension appeal from 15 October 2021 to 24 June 2022 on the ordinary basis, as agreed or assessed, and from 25 June 2022 onwards on an indemnity basis; 2. The Respondent pay the Appellant's costs of the conditions appeal from 12 July 2022 onwards on an indemnity basis or, alternatively, on the ordinary basis.
The Respondent's position is that, having regard to the Tribunal's decision and findings made therein, together with the evidence before the Tribunal of the manner in which the proceedings were conducted by the Appellant, the appropriate costs orders should be: 1. In relation to the suspension appeal, that the Appellant pay the costs of the Respondent, those costs amounting to 75% of the total costs of the appeals; 2. In relation to the conditions appeal, no order as to costs be made with the intention that each party bear his and its own costs, those costs amounting to 25% of the total costs of the appeals;
The Appellant relies particularly on a letter dated 23 June 2022 from his then solicitors to the Paramedicine Council in matter 2021/00295431 (the suspension appeals) in support of his claims. It is thus necessary to set out the terms of that letter here. "Our ref: RM:21343 23 June 2022 Paramedicine Council of NSW Attn: Bridget Andersons, HPCAA By email only: Bridget.Andersons@health.nsw.gov.au Dear Ms Andersons Re: LARTER -V- PARAMEDICINE COUNCIL OF NSW, NCAT NO. 2021/00295431 We refer to previous correspondence, note what fell before the Tribunal on 17 June 2022, and refer to the Orders of 17 June 2022. As you know, on 14 June 2022, the Council formally notified our client of the removal of the suspension it had placed on his professional registration following the section 150C panel hearing, and in the evening of 21 June 2022, the Council provided its 23-page written reasons for this decision. The removal of the suspension on our client's practitioner registration was the central pillar of relief sought by our client in this appeal. The Council's decision to remove the suspension some nine months after first imposing it and on the eve of the final hearing appears to be vindication of our client's claims and clearly justifies our client's position in launching the appeal. It now appears clear that the matter can no longer usefully proceed with the final hearing on 28 and 29 June 2022. As such, we propose that those hearing dates now be vacated and the proceedings listed before a presiding member for directions and any argument on costs on 28 June 2022 - as was suggested by the Deputy President at the recent Directions listing. In this regards, we attach a draft letter for the Council's consideration. Please confirm that it may be sent by mutual consent. Additionally, we are instructed that our client will discontinue the whole of this appeal on the following basis: 1. The record of the interim suspension be removed from Mr Larter's practitioner record with the Paramedicine Council of NSW, the Australian Health Practitioner Regulation Agency and any other relevant agency where it has been recorded or noted; 2. The Paramedicine Council of NSW to send a notification to every relevant agency or body to which notification of the suspension was previously provided, of the removal of any record of the interim suspension from Mr Larter's practitioner record; 3. The Paramedicine Council to pay Mr Larter's cost's [sic] of these proceedings, and do so within 28 days from acceptance of this offer; and 4. On Mr Larter's receipt of the Council's written acceptance of the above offer, and receipt of written confirmation [of] the occurrence of items 1 and 2 above, he will cause his solicitors to immediately write to the Tribunal seeking a final disposal of these proceedings by mutual consent. Please confirm the Council's position with respect to the draft letter to the Tribunal and/or the Council's acceptance of the above offer by no later than 4.00 pm on 24 June 2022. If the above proposal is not acceptable to the Council, then we confirm that we are instructed to press ahead with the appeal albeit on a limited basis in respect of only the removal of the record of the suspension on our client's practitioner record with the relevant bodies and to seek that the Council pay Mr Larter's costs of these proceedings. We look forward to your early reply. Yours faithfully Pryor Tzannes & Wallis"
The Appellant contends it should be uncontroversial that, having been wholly successful in the conditions appeal, the Tribunal would order costs in his favour at least in relation to those proceedings (matter 2022/00203557) and submits that there is no other factor that should mitigate against the application of the general rule that costs should follow the event.
The Appellant submits that costs should be awarded in his favour in each of the appeals "because it was the Respondent's refusal of a reasonable offer that elongated the litigation and resulted in an unnecessary hearing" (relying on the terms of the 23 June 2022 letter), to be considered against the background of procedural orders by the Tribunal from 3 December 2021 onwards and correspondence between parties as to the programming and hearing of matters including the adjournment of the proceedings.
The Appellant then sets out in his written submissions the background against which the letter of 23 June 2022 was issued and also the interlocutory steps and orders made by the Tribunal timetabling the hearing. Those interlocutory steps also involved the potential for the Respondent to bring on an application pursuant to s 55 of the CAT Act to dismiss the suspension appeal and the fact that the Respondent did not do so until the hearing of the appeals.
The Appellant stresses that he put the Respondent on notice by his solicitors' letter that if the Respondent did not accept the offer, "we are instructed to press ahead with the appeal albeit on a limited basis in respect of only the removal of the record of the suspension on our client's practitioner's record with the relevant bodies and to seek that the Council pay Mr Larter's costs of these proceedings" (being matter 2021/295431, the suspension appeal).
In respect of the suspension appeal, the Appellant argues that, by reason of the 23 June 2022 letter, the Respondent had two opportunities to resolve the suspension appeal on substantially similar terms to those determined by the Tribunal without putting the Appellant to additional costs.
The Appellant argues that the first opportunity was contained in the Appellant's proposal to vacate the hearing dates for the suspension appeal and instead list the matter for directions and an argument on costs, and that the second opportunity was contained in the Appellant's formal offer to resolve the entire suspension appeal on the basis that any record (whether public or internal) of his interim suspension be removed and that the Respondent pay his costs of the suspension appeal.
The Appellant submits that either course would have averted the need for the suspension appeal to be heard on 17 and 18 November 2022, or that the Respondent could have made an application pursuant to s 55 of the CAT Act to dismiss the suspension appeal.
It was, however, also submitted by the Appellant that the suspension appeal had utility and the arguments he advanced were, though unsuccessful, not manifestly hopeless or unmeritorious.
I note in this regard, and as outlined above, that the s 159B appeal was, of course, aimed at expunging the record as if a suspension had never occurred and the s 159 appeal prosecuted in the context of the suspension having already been ended.
The Appellant then argues that in a response to the 23 June 2022 letter, the Respondent in an email of 24 June 2022 conceded that there was utility in the appeal in so far as any determination of costs would need to follow determination of the application for removal of the suspension "from his record", thereby acknowledging, it is said, that this referred to both the public and internal employment record of the interim suspension that the Appellant sought to expunge, and not only the record publicly available on public registration sites which the Tribunal focusses on in its decision at [103].
The Appellant then submits that had the Respondent agreed to the offer in the 23 June 2022 letter to resolve the suspension appeal subject to the costs to that date, the suspension appeal and the conditions appeal would not have proceeded beyond the point in which there was a change in circumstances.
As to the costs incurred between the initiation of the suspension appeal on 15 October 2021 until 25 June 2022, the Appellant submits that the Respondent should pay those costs on the ordinary basis and that such an order is justified by the Respondent's conduct in the suspension appeal, which resulted in significant delay and costs thrown away by the Appellant in circumstances outlined in the Appellant's submissions. It is argued that the delays caused by the Respondent in the suspension appeal prejudiced the Appellant's preparation of his case and caused costs to be thrown away, which justify the award of costs to the Appellant on the ordinary basis at least from 15 October 2021 to 25 June 2022 and onwards if the Tribunal is not minded to order indemnity costs for the period from 25 June 2022 onwards.
In respect of the conditions appeal, the Appellant submitted that he should at least have his costs according to the general rule as he had succeeded on that appeal.
It is then argued, curiously, that although the letter of offer of 23 June 2022 was issued prior to the commencement of the conditions appeal and was addressing only the suspension appeal (matter 2021/00295431), the Tribunal should nevertheless exercise its discretion to make an order for indemnity costs in relation to the conditions appeal because: 1. The Tribunal is to act according to equity and the substantial merits of a case; 2. The Tribunal should look to the substance of the offer and the practical affect it would have had in preventing the conditions appeal from proceeding; 3. At the time of the offer, the Respondent had already notified the Appellant of the conditions decision and his right to appeal that decision; 4. Had the Respondent accepted the offer, the parties would have arrived at the present result as determined by the Tribunal; and 5. The Appellant would not have been compelled to initiate the s 150C(1)(c) appeal against the conditions decision nor expend the time and costs of pursuing the conditions appeal to hearing.

Respondent's Submissions

The Respondent made the following submissions, and referred to the following authorities in support of the appropriate orders in these appeals: 1. Whilst the Tribunal has a discretion to make a costs order in respect to proceedings before it, the discretion is not unfettered and is to be guided by the relevant legal principles: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [43]; Health Care Complaints Commission v Do [2014] NSWCA 307 (Do) at [52]. 2. In Qasim v Health Care Complaints Commission [2015] NSWCA 282 (Qasim) at [84]-[85], the Court of Appeal (per Meagher JA, McColl JA and Ward JA agreeing) has set out the principles to be applied by Tribunals in relation to the issues of costs: "[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]." 1. In all the circumstances in a given case, there may be factors present which will mean a successful party will not recover its costs, or all of its costs: Do at [51]; Jan v Health Care Complaints Commission (No 2) [2021] NSWSC 480 (Jan (No 2)). 2. Where a Court is considering whether a party ought to recover all of its costs, the Court of Appeal in Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 (Lucire No 2) had regard to a number of factors and legal principles: assessment is not carried out by a numerical calculation (at [50]); the manner in which a matter is pleaded (at [51]); whether the opposing party was put to unnecessary expense in the preparation of the hearing (at [52]). 3. On the issue of a party having been put to unnecessary costs and the impact of that on a successful party's ability to recover their costs, see: Ghosh v Medical Council of NSW [2020] NSWCA 122 at [117]. 4. Similarly, when exercising its discretion as to a percentage of costs to be paid where there was a mixed outcome, in Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111 (Chatoor) the Court stated: "[62] So far as the costs of the appeal to this Court are concerned, the complaint on which Dr Chatoor succeeded (Particular 1A) was that which occupied the greater proportion of the written submissions and hearing time in this Court. …" (Respondent's emphasis) 1. In some circumstances, a successful party (where not successful on all grounds) will not have their costs paid, with the intent that each party bear their own costs. This may occur in circumstances where many grounds failed, and where the basis of the ultimate finding was not that which had been principally propounded. For example, in a preliminary decision, Leeming JA in Jan v Health Care Complaints Commission [2021] NSWSC 350 (Jan) stated: "[79] My present albeit preliminary view is that there should be no order as to costs, with the intention that each bear his and its own costs. Most of the grounds failed, and that which succeeded was far from prominent in the plaintiff's submissions. Had the appeal been confined to ground 8, it may well have come to be heard more quickly, and the HCCC might have focussed on the question of power in advance of the hearing. …" (Respondent's emphasis) 1. In the final decision in Jan (No 2), Leeming JA noted the following: "[6] The HCCC opposes the order sought by Mr Jan. It says that an order that there be no order as to costs was appropriate given the failure of most of the grounds, and the fact that Mr Jan's success was on a slightly different basis than as strictly set out in the summons and submissions. It also says that all that matters is what was advanced in this Court. … [10] Thirdly, I accept Mr Jan's submission that substantially the point on which he succeeded was at all times being agitated in his appeal and before NCAT. A well recognised basis for departing from the usual order for costs is where an appellant succeeds on a point not hitherto raised. That is not this case. … [13] Mr Jan failed on the large majority of his grounds of appeal. Some were hopeless because they purported to raise grounds which could be raised as of right, although they plainly involved questions of fact. Even when suggestions to that effect were made, by Cavanagh J, at a directions hearing, this led only to a mechanical doubling of the grounds of appeal, by adding grounds 9-16 in identical terms as already formulated but by way of grounds which could be pursued with leave. And even putting to one side the distinction between an appeal as of right on a question of law, and with leave on questions of fact, some of the grounds were either hopeless or if they were not, 'only just [fell] on the side of what is reasonably arguable within the broader scope of the appeal which is permissible by way of leave': at [56] of the earlier judgment. [14] It is clear that the large majority of time spent arguing the appeal, and the large majority of the parties' written submissions served in advance of the appeal, was spent on points where Mr Jan failed. I would infer that the majority of Mr Jan's costs was spent on points on which he failed, rather than on points on which he succeeded. I would likewise infer that the majority of the HCCC's costs were spent on points on which it succeeded. [15] There is regularly a question which arises where a litigant enjoys some partial success, but has also been unsuccessful on some of the issues litigated. There is a well recognised discretion in those circumstances to depart from the usual rule. In Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343 it was said that at [10] that the costs ordered 'should be a just and fair reflection of the cases run, won and lost, given the range of issues litigated, the manner of running the trial and the basis of success.' Cases where an appellant who has obtained orders in his or her favour, but where the appellant's failure on other grounds has led to there being no order as to costs include Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWC 50 at [83] and Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [83]. [16] Having regard to the way in which Mr Jan sought orders and raised grounds on which he did not succeed, in addition to the single ground on which his success was based, I think that a just and fair order as to costs is that there be no order as to costs (which is to say that the parties should bear their own costs) of the proceedings in this Court. [17] Mr Jan's application for costs stands in a separate position. He has been wholly unsuccessful. He should pay the HCCC's costs of responding to his application to vary order 6." (Respondent's emphasis) 1. The Court of Appeal has very recently considered the costs implications of matters where there are mixed outcomes. In Broken Hill Cobalt Project Pty Ltd v Lord (No 2) [2023] NSWCA 17 (Lord (No 2)), the Court stated: "[5] In the present case, where there was a mixed outcome on the grounds of appeal, the appellants accept that a departure from the general rule is appropriate; and they invoke the principles governing the making of proportionate costs orders or orders on an issue by issue basis in such a case (summarised by the Court in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (Bostik) at [38])."
(Respondent's emphasis) 1. The summary of the principles governing the making of proportionate costs orders referred to in Lord (No 2), per Bostik, is as follows: "[38] The principles governing the making of an order as to costs so as to reflect the time taken in dealing with a particular issue in which the successful party in the proceedings or on the appeal did not succeed were reviewed by this Court in Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373. Those principles may be summarised as follows: 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 Beasley 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) 26 IPR 261 at 272. These principles were applied in City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57 at [22] and most recently in Turkmani v Visvalingham (No 2) [2009] NSWCA 279." (Respondent's emphasis)
The Respondent then argues that in relation to the suspension appeal there was a complete failure of the Appellant to make out any of his grounds and the Appellant should pay the costs of the Respondent.
The Respondent submits that it is estimated that having regard to the documentary and oral evidence, preparation for hearing, written submissions and time spent during the course of the hearing that the suspension appeal occupied 75% of time and/or documentation and an order to this effect is accordingly sought.
The Respondent argues that in making that submission it notes that the failure of the Appellant's s 159 and s 159B suspension appeals was complete with the Tribunal variously describing the appeal points as having "no substance", "no application to the present appeals", "no basis" and being "misconceived and lacking in substance".
In respect of the conditions appeal, the Respondent argues that notwithstanding the ultimate success in having the conditions decision set aside, it is submitted that the "just and fair" order is for no order to be made with the intention that the Appellant and Respondent bear his and its own costs. It is then argued that the conditions appeal occupied 25% of the time and an order to that effect is accordingly sought.
After referring to the Tribunal's analysis and the fact that a s 148 inquiry under the National Law had already been initiated (a factor which the Tribunal regarded as relevant as provided in the decision of Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (Pridgeon)), it was submitted that the grounds relied upon in the conditions appeal bore little or no relationship to the basis on which the Tribunal ultimately found for the Appellant in both the s 159 and s 159B appeals, and nowhere did the Appellant come to grips with the role and effect of s 148.
The Respondent emphasises that the written submissions of the Appellant in the substantive matter lists the conditions appeal grounds as comprising: 1. Lack of procedural fairness; 2. Principle of legality; 3. Harshness and proportionality; 4. Improper purpose; and 5. Ultra vires; and each of those grounds was found by the Tribunal to have been unsubstantiated.
In addition, the complaint concerning procedural fairness, which related to the denial of provision of unredacted complaints, was rejected where it was considered that the absence of unredacted documents did not deny the Appellant procedural fairness, and considerable time and expense, both before and during the hearing, was dedicated to that issue.
Accordingly, the Respondent argues with respect to the conditions appeal there be no order as to costs.
In oral submissions, the Appellant argued that in respect of the conditions appeal costs should follow the event even when multiple issues have been raised for determination and only some succeeded.
In response to the argument that the grounds relied upon in the conditions appeal were wholly unrelated to the grounds of appeal and unsuccessful, the Appellant pointed to grounds 3.2.8, 3.2.10 and 3.2.12 of the conditions appeal and the conclusions by the Tribunal at [110] and [111] of its reasons.
It was argued in reply that the suspension appeal would not have been necessary if the Appellant's offer of 23 June 2022 had been accepted. It was also contended that by reason of the dismissal of the s 150 suspension appeal pursuant to s 55(1) of the CAT Act, the Appellant was denied the opportunity of establishing that he "would have won".
Senior Counsel for the Appellant then emphasised that an apportionment of costs in respect of grounds not established should be preserved for the most exceptional circumstances and should be considered with caution. Specific reliance was placed on the following reasoning in Australian Receivables Ltd v Tekitu Pty Ltd & Ors [2011] NSWSC 1425 (Australian Receivables) per Ward J (as her Honour then was): "[44] There is no doubt that there were a number of separate claims made by the respective parties in the context of the cross-claim and defence thereto. The question is whether the success or otherwise on those issues should be reflected in the costs orders (by awarding separately the costs of particular issues or in a reduction in the costs that might otherwise be payable in respect of the cross-claim). [45] It is accepted by Mr Cotman that the court may in appropriate cases award costs of a separate issue where a clearly defined and separate issue (on which the otherwise successful party failed) had occupied a significant part of the trial (Pacific General Securities Ltd v Soliman & Sons Pty Ltd [2006] NSWSC 724) and that it may be appropriate to deprive a successful party of its costs altogether 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 Custodian Ltd (No 2) [2007] NSWCA 306). However, he maintains that this is not such a case. [46] Mr Cotman notes, and I accept, that where there are multiple issues in a case the court does not generally attempt to differentiate between those issues on which a party was successful or failed, but instead awards costs of the proceeding to the successful party (Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373) and that the discretion to apportion costs is one to be exercised in the most exceptional of circumstances (Trade Practices Commission v Nicholas Enterprises Pty Limited (No 3) (1979) 28 ALR 201; (1979) 42 FLR 213). It has been said in this regard that the court needs to be mindful not to discourage litigants from canvassing all material issues for fear of an adverse costs order (Cretazzo v Lombardi (1975) 13 SASR 4 at [12]; Stena Rederi Aktibolag v Austal Ships Sales Pty Limited [2007] FCA 1141 at [12]). … [53] I accept that Tekitu was not wholly successful on the matters that it raised by way of cross-claim (and, in particular, that it was unsuccessful on the business as usual claim - in preparation for which costs in relation to the Bateman expert report will have been incurred). However, I am mindful of the caution exhorted in the authorities as to departure from the usual rule and of the need not to discourage parties from taking reasonable issues in defence of claims made against them. While the business as usual claim did not succeed, it was not in my view an unreasonable claim having regard to the significant drop in revenue over the period of the second earn-out (and Tekitu's suspicions in this regard were no doubt, and not unreasonably, excited by the internal communications between Mr Cooney and his American business colleagues from which there was a suggestion that Australian Receivables may have had the intention of using the business acquired in order to build up its own revenues to the detriment of Tekitu). [54] In Windsurfing International Incorporated v Petit (1987) AIPC 90-441, Waddell J (as his Honour then was) (referring with general approval to decisions to the effect that in recent years the approach had been that a successful party should have the whole costs of the proceeding, including the costs of an issue on which it has failed, unless in respect of that issue the successful party has "unfairly, improperly, or unnecessarily increased the costs" (at p37,861-37,862)) said: 'It is, I think, probably generally accepted that the words 'follow the event' refer to the event of the claim or counter claim. However, it may be noted that in other contexts similar words have been held to refer to the event of distinct issues with the result that the general costs went to the party who on the whole succeeded in the action but that the other party got the costs of separate issues on which he succeeded.' [55] His Honour's decision in Windsurfing has been taken (see for example Lavender View v North Sydney Council (No 2) [1999] NSWSC 775, per Rolfe J; Uniline Australia Ltd (ACN 010 752 057) v Sbriggs Pty Ltd (ACN 007 415 518) and Another (No 2) [2009] FCA 920; (2009) 82 IPR 56, per Greenwood J; Leallee v the Commissioner of the NSW Department of Corrective Services [2009] NSWSC 518, per Price J; Sahab Holcings Pty Ltd v Registrar-General and Anor [No 3] [2010] NSWSC 403, per Slattery J, at [36]) to be that in an appropriate case a costs order may be moulded to reflect the degree of success on distinct issues. … [60] The exercise of the court's discretion as to costs ultimately requires an assessment of what is fair in all the circumstances. In Bowen Investments Pty Limited v TAB Corp Holdings Limited (No 2) [2008] FCAFC 107 Finkelstein and Gordon JJ said (at [5]): 'Costs are in the court's discretion. Fairness should dictate how that discretion is to be exercised. So, if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied.' citing also Hodge v TCN Channel 9 (No 2) [2006] NSWSC 1272 and Standard Commodities Pty Limited v Societe Socinter Department Centragel [2005] NSWSC 493; (2005) 54 ACSR 496."
The Respondent amplified its written submissions in oral argument to the following effect: 1. The Paramedicine Council did not accept the premise in the third paragraph of the 23 June 2022 letter that the removal of the suspension was a vindication of the Appellant's claims and clearly justified the launching of his appeal. 2. The suspension decision when made was appropriate. 3. The offer in the 23 June 2022 letter was incapable of acceptance and there was no legal basis put forward for how the Council could expunge the record. 4. The Appellant failed to identify the legal basis or power for the Paramedicine Council to do what was being sought despite being invited to clarify the position. 5. There was no basis for attributing more responsibility to the Respondent as opposed to shared responsibility between the parties for the steps taken after 23 June 2022 and it was important to look at the whole of the conduct of the parties, which the Appellant had not done in his submissions whilst conflating conduct of the Council and others with the steps within the Tribunal. 6. There was no point in bringing forward a CAT Act, s 55 application when the Respondent was still confronted with the conditions appeal and the Appellant was always on notice that that option was available to the Respondent. 7. Insofar as the Appellant sought to rely on the letter of 23 June 2022 in respect of the conditions appeal, the basis upon which it was put was incapable of being assessed at the time. 8. Indemnity costs are not appropriate in the regulatory framework: Holt v Dental Council of New South Wales [2020] NSWCATOD 154.
The Appellant in reply stressed that the question was whether it was reasonable for the Paramedicine Council to have rejected the offer and it had not identified anything at the time pointing to unreasonableness.

Consideration

The Court of Appeal in Do (at [52]) held that in respect of costs in the Court the same approach would be adopted as would have been adopted in the Tribunal, namely, that there is an unfettered discretion in relation to the awarding of costs although the compensatory principle mitigated in favour of a successful party obtaining an order for costs.
It was, however, also accepted that there may be factors which militate against the recovery where a party is partly successful, a view arrived at in reliance on Lucire v Health Care Complaints Commission (No 2) referred to above. That case, of course, considered factors which could be taken into account in the exercise of the discretion where the Health Care Complaints Commission had been successful in obtaining findings in respect of unsatisfactory professional conduct, but not professional misconduct, and it also failed to establish each of the particulars pleaded. The Court concluded that taking into account the degree to which the complainant was unsuccessful before the Tribunal, the appropriate basis for the calculation of costs in the Tribunal should be that the practitioner pay 70% of the Commission's costs of the inquiry.
In Jan, as quoted above, the Court was of the view that some of the grounds were close to unarguable, the hearing would have been concluded more quickly and efficiently but for the unsuccessful grounds and, in the end, no order was made in respect of costs, each party having to pay their own costs. The question was what was a just and fair order as to costs.
The decision of the Supreme Court in the Australian Receivables case relied upon by the Appellant was concerned with costs in that Court unrelated to the powers of the Tribunal to award costs. Understandably, for example, the decision did not refer to Lucire which was handed down some six months earlier. In addition, the later cases in the Court dealing with costs in the Tribunal do not refer to the Australian Receivables case.
There are, however, similarities in what the trial Judge held in that case with the approach in the Tribunal. As her Honour pointed out, it was ultimately a question of what was fair in all the circumstances. Although her Honour did point out that a court needed to be mindful not to discourage litigants from canvassing all material issues for fear of an adverse costs order, she also went on to review the claims and held that in her view they were not unreasonably made, even if ultimately unsuccessful.
None of the cases of which I am aware dealing specifically with the powers of the Tribunal to make orders for costs support the view that exceptional circumstances have to be established although, I recognise, that there have to be sound reasons for departing from the usual rule that costs follow the event.
The approach which I adopt is also consistent with other cases in the Tribunal (see also Health Care Complaints Commission v Reyes (No 2) (Costs) [2023] NSWCATOD 94 in which, applying the principles in Lucire the Tribunal as differently constituted arrived at an outcome where the respondent was to pay two thirds of the applicant's costs, as agreed or assessed in circumstances where some of the complaints made were unsuccessful before the Tribunal).

Suspension Appeal

In conformity with the authorities relied upon by the Respondent, having been completely successful in respect of the s 159B and s 159 suspension appeal, costs should ordinarily follow the event in the absence of disentitling conduct.
I reject the Appellant's argument that the Respondent is not entitled to its costs of those appeals by reason of the letter of 23 June 2022 for the following reasons: 1. The offer in the 23 June 2022 letter was premised on a false assertion that the removal of the suspension was a vindication of the Appellant's claims and justified the launching of the appeal. It simply does not follow that the removal of the suspension vindicated the launching of the appeal. The Tribunal in its reasons in the substantive matter was satisfied that the evidence before the Commission and before the Tribunal as to the state of affairs as at September 2021 justified the exercise of the s 150 powers in September 2021. 2. The rejection of the request for the removal of any record of the suspension was not unreasonable. The claim that the Respondent should remove any internal record about the suspension, in circumstances where the suspension had been implemented and where a record of such suspension was necessary within the regulatory scheme in order to notify authorities and others that the Appellant's registration had been suspended, was unwarranted in the absence of the suspension decision having been set aside as if never made. There was no reason why the Paramedicine Council should have acted in this way. There is also a serious question as to the power of the Paramedicine Council to have done what was being sought. The Appellant did not point to any legal basis for such action to be taken. 3. There was also, in the circumstances, no reason why the Respondent should have assumed liability for the costs of the appeal in those circumstances up until that date. There was no conduct on the part of the Respondent calling for acceptance of this liability. 4. In respect of the argument that acceptance of the proposal in the letter would have averted the need for the suspension appeal to be heard, and that the Respondent could have made a s 55 application under the CAT Act, I am not persuaded by this argument. In the circumstances, where the suspension had been lifted and the public record removed at that point, it was open to the Appellant to have discontinued his appeals and, if necessary, seek an order as to costs which would then have been assessed by the Tribunal on its merits. 5. Discontinuance of the suspension appeal at that point would have obviated the necessity of a hearing. It was an option considered by the Appellant (see Tribunal orders of 17 June 2022) but not pursued. The outcome would have been that of the appeals - the suspension had been removed by the Paramedicine Council with the removal of the suspension from the public record as well, the same outcome following the appeals as the position was left undisturbed by the Tribunal. 6. I am not satisfied that the resolution of the suspension appeal would necessarily have resulted in the resolution of the conditions appeal, or that the conditions appeal would not have been necessary as contended by the Appellant. There is, in my view, no logical basis for such a claim other than, it seems, reliance on the false premise referred to above. 7. The argument about dismissal of the proceedings pursuant to s 55 of the CAT Act was directed at the s 150 appeal. Reliance on that power in the hearing did not materially prolong the hearing in circumstances where the Appellant maintained and prosecuted the s 159B appeal so as to set aside the suspension as if never made, being the major part of the Appellant's case. 8. I do not accept that what is argued as the two opportunities to resolve the suspension appeal justifies a departure from the usual rule in respect of the costs of these appeals. I have considered the course of the proceedings in the interlocutory stages of the appeals and the correspondence exchanged between the parties. In my view, and I conclude, that the conduct of the parties, in particular that of the Respondent, does not, when the matters are viewed as a whole, justify a conclusion that disentitle it to the usual order as to costs. 9. Having reviewed the materials concerning the conduct of the appeals referred to by the Appellant and the Respondent, I have come to the view that there is no basis for attributing to one of the parties more responsibility for delays or additional costs as opposed to the other. There were a number of delays in complying with the Tribunal's directions and orders, but not confined to one party. 10. In addition, caution is required to award indemnity costs in proceedings before the Tribunal and I am not convinced that it would be appropriate to do so in this case, even if the Appellant made out his arguments based on the 23 June 2020 letter, which he has failed to do.

Conditions Appeal

In my view, the specific circumstances of this case lead me to conclude that the Appellant should be entitled to some, but not all, of his costs of the conditions appeal. My reasons for coming to that conclusion are the following: 1. The grounds, and also particularly the written and oral submissions in the hearing of the appeals, bore little or no direct relationship to the basis upon which the Tribunal ultimately found for the Appellant in both the s 159B and s 150 conditions appeals. 2. The Appellant's written submissions filed prior to the hearing of those appeals listed the grounds as comprising: 1. Lack of procedural fairness; 2. Principle of legality; 3. Harshness and proportionality; 4. Improper purpose; and 5. Ultra vires. 1. In the Tribunal's reasons disposing of the appeals, those matters were dealt with and were rejected. The claims were variously described as having "no substance" (at [71]); "no application to the present appeals" (at [75]); "no basis" (at [85]); and being "misconceived and lacking in substance" (at [100]). 2. In fact, a number of those grounds could be said to be, using the language of Justice Leeming in Jan, as close to unarguable. In particular, the arguments concerning the principle of legality (at [65]-[71]), the claimed right to bodily integrity (at [72]-[75]), and the failure to present or point to evidence in support of grounds (at [77]) fall into this category. 3. The ground upon which the Appellant ultimately succeeded was not, in my view, squarely articulated. The grounds pointed to in oral argument did not do so. The Tribunal had to consider for itself whether as at June 2022, and in November 2022 before the Tribunal, the powers to impose conditions were enlivened in accordance with s 150(1) of the National Law - the evaluative judgment as to whether it was appropriate to impose conditions with the reasoning in Pridgeon at the forefront of the Tribunal's considerations. 4. In my view, had the Appellant's case been confined to that issue, and not all the unsuccessful grounds, the hearing would have been considerably shortened and would have been dealt with much more cost-effectively. In addition, a considerable and completely disproportionate part of the hearing time was devoted to the Appellant seeking to enforce subpoenas directed to a third party and the Paramedicine Council shortly before the hearing, which was relied upon in support of the Appellant's arguments that he was denied procedural fairness because he did not have unredacted copies of complaints made against him which were provided to him. As was found by the Tribunal, the written complaints he had been provided with earlier fully set out the substance of complaints and the unredacted copies sought could not have added to his case. 5. In my view, and I conclude, all these factors militate strongly against recovery of the full costs of the appeals. 6. In the circumstances, it is open to consider whether there should be no order as to costs of these appeals as contended for by the Respondent, an outcome open on the evidence of this appeal, as it was in the case of Jan. 7. However, taking all matters into consideration, that is not the appropriate outcome in this case. In my view, the Appellant should have only 50% of his costs on a party/party basis in respect of the conditions appeals that in the end were successful. 8. In my view, the proportion of costs which the Appellant should in the circumstances be entitled to recover are matters of assessment and judgment which cannot be carried out too finely. My assessment is that 50% is a fair outcome.

75% Argument

In my view, it is not appropriate to amalgamate the outcomes as sought by the Respondent such that the Appellant pays the costs of the Respondent amounting to 75% of the total costs of the appeals. On the evidence available, it is not reasonably open to make an assessment as to how that figure is arrived at, or whether it is a fair outcome. In my view, a preferable course is for the parties either to agree how they will reconcile the orders proposed, or those matters can be assessed in a costs assessment in the event of the parties being unable to agree.

Costs Hearing

I consider a fair outcome as to the costs of the applications made by the parties for costs orders to be that: 1. the Respondent, having been wholly successful in its claims in the suspension appeal, should have its costs of the application as agreed or assessed; 2. the Appellant, having been successful in obtaining an order for costs in his favour for the conditions appeal, should have his costs of the application as agreed or assessed.
For the avoidance of doubt: 1. the reduction in the Appellant's costs of the conditions appeal to 50% does not apply to the application for costs in those appeals; 2. the Respondent's costs of the suspension appeals are to include the costs associated in opposing the production of documents the subject of the subpoena addressed to the Paramedicine Council issued at the request of the Appellant and dealt with in the reasons of the Tribunal reported as Larter v Paramedicine Council of NSW (No 2) [2023] NSWCATOD 13.

Orders 1. In respect of the appeals in matter 2021/00295431, the Appellant is to pay the Respondent's costs including the costs of this application on a party/party basis as agreed or assessed. 2. Subject to Order (3) below in respect of the appeals in matter 2022/00203557, the Respondent is to pay 50% of the Appellant's costs on a party/party basis as agreed or assessed. 3. The Respondent is to pay the Appellant's costs in his application for costs for the appeals in matter 2022/00203557 as agreed or assessed.

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

Amendments 31 July 2023 - Subparagraph 52(2) corrected - "the Appellant's costs of the suspension appeals" amended to "the Respondent's costs of the suspension appeals". 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: 31 July 2023

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (2)

Cases Cited (41)