LINDSAY v NSW MEDICAL BOARD

LEGISLATION CITED : Medical Practice Act 1992 Supreme Court Act 1970

Colgate Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248 Commissioner of Police v Gordon (1981) 1 NSWLR 675 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 CASES CITED : Hill v King (1993) 31 NSWLR 654 NSW Breeding & Racing Stables Pty Limited v Administrative Decisions Tribunal (NSW) (2001) 53 NSWLR 559 Oshlack v Richmond River Council (1998) 193 CLR 72 Weanel v Judge Parsons (1994) 62 SASR 501 White ACT (in liquidation) v G B White & Ors [2004] NSWSC 303

PARTIES : LINDSAY, David Charles v NSW MEDICAL BOARD

COUNSEL : P: J M Ireland QC/P Bruckner D: K Richardson

SOLICITORS : P: K Solari D: NSW Medical Board

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

DAVID CHARLES LINDSAY v NEW SOUTH WALES MEDICAL BOARD

1 HIS HONOUR: The defendant has applied for a costs order in its favour. The issue between the parties is the basis on which costs should be awarded in respect of the proceedings, which were heard by this Court on 31 January and 1 February 2008 ('the proceedings'). The plaintiff does not dispute that the defendant is entitled to an order in its favour for costs of the proceedings. The dispute is whether the plaintiff should pay the defendant's costs on the usual (ordinary) basis or on an indemnity basis.

2 On the 18 December 2007, delegates of the defendant, pursuant to s.66 of the Medical Practice Act 1992, made a decision to suspend the plaintiff from practising medicine for a period of eight weeks ('the decision'). The plaintiff challenged that decision by commencing these proceedings as well as by appealing to the Medical Tribunal under the Medical Practice Act, s.92. The two actions were initiated on the same day. 3 By way of the Further Amended Summons, the plaintiff sought declaratory and other relief against the defendant. The plaintiff asked this Court to exercise its jurisdiction under s.69 of the Supreme Court Act 1970 so as to declare the decision of the defendant void and to grant an order in the nature of certiorari quashing or setting aside the decision. 4 The plaintiff raised a number of grounds in seeking judicial review of the Board's decision. These included allegations of breach of procedural fairness and unreasonableness by the defendant ('the substantive issues'). 5 The defendant contended that the Court ought decline relief by reason that (i) the proceedings in this Court were, concurrent with those in the Medical Tribunal, constituted an abuse of process; and (ii) the availability of a statutory appeal mechanism warranted a refusal by this Court to exercise its judicial review jurisdiction ('the discretionary issue'). Initially, counsel for the defendant proposed that the discretionary issue be dealt with as a separate or preliminary question. 6 Campbell JA in an ex tempore interlocutory decision on 23 January 2008 at [6] stated:- "While Ms Richardson submits that there should be a separate hearing of the questions that she has foreshadowed, it seems to me that it is appropriate for any decision about whether there should be such a separate hearing to be made by the judge who is likely to have the ultimate hearing of the matter, if it does proceed to a final hearing." 7 The defendant abstained from making an application for summary disposal of the proceedings (based on the discretionary issue) before Campbell JA. 8 On the 7 February 2008, judgment was given in favour of the defendant, the plaintiff having failed to establish any of the 10 grounds relied upon in support of the claim for relief. In respect of the discretionary issue, I stated, "had the question of discretion arisen for determination … on discretionary grounds it would have been properly open to me to have declined to exercise … jurisdiction": at [236].

9 The general rule is that costs follow the event: Uniform Civil Procedure Rules 2005, Rule 42.1:- "Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs." 10 Furthermore, costs payable are generally assessed on an ordinary basis: Uniform Civil Procedure Rules, Rule 42.2:- "Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis." 11 In Colgate Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248 at 256, the Court (Sheppard J) stated that an order for the payment of costs on a party and party basis is 'entrenched' practice in Australia. Hence "in consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis".

12 Notwithstanding this general rule, the court has a discretionary power to order that costs be awarded on an indemnity basis: see Civil Procedure Act 2005, s.98(1). Principles as to Costs on an Indemnity Basis

13 The breadth of the Court's discretionary power in respect of awarding costs is well-established. Although the discretion is not limited, it is, of course, one that is required to be exercised judicially: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 400. 14 In general terms, there must be some circumstance of the case that justifies the court departing from its usual award of costs on an ordinary basis. 15 In Oshlack v Richmond River Council (1998) 193 CLR 72, Gaudron and Gummow JJ at [44], that cost orders on an indemnity basis are to "more fully or adequately … compensate the successful party to the disadvantage of what would otherwise have been the position of the unsuccessful party in the absence of such delinquency on its part". "Delinquency" should be understood to mean "delinquency bearing a relevant relation to the conduct of the case" rather than moral delinquency or ethical shortcoming: White ACT (in liquidation) v G B White & Ors [2004] NSWSC 303 at [11]. 16 The judgment of Sheppard J in Colgate Palmolive (supra) summarised the 'categories of cases' in which courts have found sufficient circumstances to exercise its discretion so as to depart from normal practice. One such category includes cases where the unsuccessful party wilfully disregarded clearly established law. Further categories include: the making of allegations of fraud knowing them to be false; evidence of particular misconduct that causes loss of time to the court and other parties; the commencement or continuation of the proceedings for an ulterior motive; the undue prolongation of a case by groundless contentions; and an imprudent refusal of an offer to compromise. 17 In this case, the defendant argued that the commencement of proceedings by the plaintiff was unreasonable as the plaintiff (it is alleged) wilfully disregarded clearly established law as to the circumstances in which this Court will exercise its jurisdiction to grant judicial review where there is an alternative statutory remedy. 18 Whilst the categories of cases in which a court sees fit to make an order of costs on an indemnity basis have, for many years, been recognised, the categories are by no means fixed or closed. In other words, this Court is not precluded from making an order for indemnity costs simply on the basis that the case lacks those circumstances that have to date been identified in the above categories of cases. 19 Sheppard J in Colgate Palmolive (supra) stated:- "It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on an indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order." 20 Ultimately, the application in the present case requires that I have regard to the particular circumstances of the case and determine whether they require a departure from the normal award of costs.

21 The defendant argued that the Court should exercise its discretion to award indemnity costs in light of the plaintiff's 'unreasonable' conduct in bringing these proceedings - proceedings brought and maintained whilst a statutory appeal challenging the same decision was on foot. The defendant also criticised the plaintiff for seeking a full hearing rather than confining the hearing of the proceedings to a determination of the discretionary issue to which I have referred above. 22 The defendant submitted that the plaintiff brought these (concurrent) proceedings thereby occasioning expense to the defendant, despite "the Board alert[ing] Dr Lindsay ... the de novo appeal in the Medical Tribunal was the appropriate course for Dr Lindsay to take in order to seek review of the Decision". The defendant also asserted an awareness in Dr Lindsay's legal team that the authorities "make plain that in circumstances such as this case, a Court will decline judicial review". 23 In other words, the defendant submitted that the plaintiff wilfully disregarded what it contended was clearly established law, namely, that this Court would decline judicial review in circumstances where there were concurrent proceedings in a tribunal that had undoubted jurisdiction. 24 The defendant also contended that the plaintiff's insistence upon a full hearing (requiring presentation of arguments directed at both the substantive and the discretionary issue) constituted unreasonable conduct, noting that:- "the expense of a full hearing on all the grounds asserted by Dr Lindsay was unnecessary and would have been avoided if Dr Lindsay had accepted the Board's proposed course of the determination of a separate question on the discretionary issues'; "the Board ... specifically put Dr Lindsay on notice of the costs consequence of not having that matter determined as a preliminary question"; "it is apparent [the Defendant submits] ... his Honour [Hall J] accepted the Board's contention that, on discretionary grounds, the Court ought to decline to exercise its jurisdiction to grant judicial review." 25 Mr Bruckner of counsel submitted for the plaintiff, contrary to the defendant's submission, that there is no clearly established law in respect of the circumstances in which a court will decline to review a decision made under s.66 of the Medical Practice Act. 26 The plaintiff, accordingly, disputed the submissions made on behalf of the defendant that there had been "wilful disregard of the known facts or the clearly established law". The plaintiff contended that the argument failed at the outset for this reason and by reason of the fact that I had not exercised the discretion not to grant judicial review. 27 The plaintiff, accordingly, submitted that no basis had been shown for departing from the usual order.

Alternative statutory remedies and prerogative relief 28 The plaintiff had available a statutory right pursuant to s.95(1) of the Medical Tribunal Act to appeal to the Medical Tribunal against a suspension by order made under Part 4 of the Act: s.95(1)(a). On an appeal, the Tribunal may by order terminate, vary or confirm the period of suspension or revoke, vary or confirm the conditions, as it thinks proper: s.97(1). 29 The discretion to refuse relief in the nature of prerogative relief is well recognised: see Weanel v Judge Parsons (1994) 62 SASR 501 per King CJ at 504. The discretionary criteria for refusing certiorari may include the availability of an effective alternative remedy. 30 In Re Preston [1985] AC 835 at 852, Lord Scarman said:- "… A remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures … it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appellable decision." 31 In that case, Lord Templeton also said (at 862):- "… Judicial review should not be granted where an alternative remedy is available … Judicial review process should not be allowed to supplant the normal statutory appeal procedure." 32 See also Hill v King (1993) 31 NSWLR 654 at 659 per Clarke, Handley and Sheller JJA. 33 In Commissioner of Police v Gordon (1981) 1 NSWLR 675, the plaintiff in the Court below (a former police officer) sought and obtained an order in the nature of certiorari quashing his dismissal by the Commissioner of Police. On the date upon which he was informed that the Commissioner had considered the matter of his offence and had decided to dismiss him from the Police Force, he lodged an appeal to the former Crown Employees' Appeal Board. That appeal was shortly thereafter adjourned on the former police officer's request and was eventually stood over pending the outcome of proceedings initiated in this Court. In that case, Moffitt P (with whom Reynolds and Glass JJA agreed) stated (at 690):- "In my view, apart from other considerations, the existence and continuance of the proceedings before the board in these circumstances provided compelling ground for the Court to decline to intervene in exercise of its prerogative powers. The Court has always and properly shown a reluctance to exercise this discretionary jurisdiction where there are available, and on foot proceedings before a tribunal, particularly if presided over by a judge which is invested with power exercisable judicially to determine the subject matter of the dispute on the merits." 34 In the present proceedings, the availability to a plaintiff of a statutory right of appeal under s.95 of the Medical Tribunal Act does not, of itself, operate to disqualify a person from having recourse to this Court. It is possible to envisage circumstances where it may be considered appropriate to grant relief in the nature of certiorari. As recorded in the principal judgment at [237], there may exist circumstances, for example, where there is a very clear breach of the requirements of procedural fairness whereby it would be open to an affected person to apply to this Court for relief. 35 In other cases, the general principles stated by Moffitt P in Gordon (supra) may have application as a discretionary consideration in this Court declining relief. It does not follow, however, that by reason of the plaintiff having concurrently commenced proceedings under s.95 of the Medical Tribunal Act and subsequently failing in the present proceedings that an indemnity costs order must or should be made. 36 The plaintiff claimed, on a number of bases, that he had been denied procedural fairness before the Medical Board. His contentions in that respect required a close examination of the events that led to his suspension by the Board. In my opinion, the existence of an alternative remedy and the commencement of concurrent proceedings do not, in every case where a denial of procedural fairness is claimed, require that an award of indemnity costs be made against an unsuccessful plaintiff. In the present proceedings, following a full hearing, the plaintiff ultimately failed to make out any of the grounds he relied upon. In those circumstances, the occasion did not arise for me to finally determine the discretionary issue to which I have earlier referred. 37 In NSW Breeding & Racing Stables Pty Limited v Administrative Decisions Tribunal (NSW) (2001) 53 NSWLR 559 at [16], Barrett J, after reviewing the relevant authorities, stated that:- "… the message from those sources was consistent, namely, that ordinarily the judicial review jurisdiction will not be exercised where there is an alternative remedy by way of appeal; and that that general rule will be displaced only by 'exceptional circumstances'. It was emphasised, however, that the judgment is one which must be made according to the circumstances of each case and that what I have termed the 'general rule' should not be approached as if it were a statutory prescription." 38 I do not consider that the circumstances of the present case justify the making of an indemnity costs order. The plaintiff, in my opinion, cannot be said to have engaged in "delinquent" conduct in the sense referred to in paragraph [15] or to have acted in wilful disregard of the facts or law. I do not consider that this was a case wherein the discretionary issue referred to in the defendant's submissions lent itself to preliminary or separate determination on the discretion point. 39 Accordingly, I make an order that the plaintiff pay the defendant's costs of and incidental to the proceedings on the ordinary basis in accordance with Rule 42.4 of the Uniform Civil Procedure Rules.

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