The Health Care Complaints Commission ("the Commission") seeks an order that the Applicant, Mr Mackie, pay its costs for work associated in responding to an application made by Mr Mackie for a reinstatement order but which he subsequently withdrew.
The Commission sought that such costs be as agreed or, failing agreement, as assessed. Mr Mackie disagreed with the Commission's position and in effect sought that no costs order be made.
[2]
Background
On 25 October 2018, the Civil and Administrative Tribunal of New South Wales ("the Tribunal") found Mr Mackie guilty of unsatisfactory professional conduct and professional misconduct. The Tribunal issued protective orders including that Mr Mackie was not permitted to apply for registration as a Registered Nurse for a period of four years: see Health Care Complaints Commission v Mackie [2018] NSWCATOD 174.
On 21 February 2023, Mr Mackie applied for an order under s 163B of the Health Practitioner Regulation National Law (NSW) ("National Law") to be re-instated to the profession of nursing. In the grounds for the application, Mr Mackie stated that the period of four years from the date of the order imposed by the Tribunal had lapsed. Mr Mackie made brief reference to the steps he had taken to address his past conduct and his desire to use his qualifications to benefit society and the nursing profession.
A directions hearing was held on 3 March 2023. Orders were made for the filing and service of material by both parties and the proceedings were listed for hearing on 20 June 2023.
The day after the directions hearing, on 4 March 2023, the Commission received an email from Mr Mackie advising of his intention to withdraw the application for reinstatement. Mr Mackie made a request for withdrawal of the application dated 6 March 2023 which was received by the Tribunal on 9 March 2023.
The Tribunal subsequently received correspondence from the Commission indicating that it did not oppose the matter being withdrawn. It also sought that Mr Mackie pay its costs of the proceedings as agreed or assessed. It attached submissions in support of its application for costs. Finally, it did not oppose the issue of costs being dealt with on the papers.
On 31 March 2023, the Tribunal made orders vacating the hearing and noted that the parties had been given the opportunity to make submissions in relation to the question of whether the application for costs could be decided on the papers. The Tribunal recorded that the Commission did not object to the matter being decided on the papers and that Mr Mackie had not made a submission on that specific issue. The Tribunal was satisfied that the issue of costs could be determined on the papers and dispensed with a hearing on the question of costs.
[3]
The parties' arguments about costs
Both parties made submissions about costs.
The Commission's submissions referenced the statutory framework containing the power to award costs. It pointed to case law in support of the proposition that the general rule is that costs followed the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 ("Philipiah") at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51].
It was said that reinstatement proceedings arise because of the prior misconduct of the applicant. Viewed in this light, they are ancillary to the original proceedings which resulted in cancellation of the applicant's registration, so it is open to the Tribunal to order the applicant to pay the Commission's costs: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 at [48], quoting Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [90].
Further, a reinstatement application normally has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest; an applicant for reinstatement should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated, regardless of whether the order is granted or refused: Ristevski v Medical Council of NSW [2016] NSWCATOD 18 at [87] ("Ristevski"). Mere impecuniosity of the losing party is not a justifiable reason to depart from the usual rules in respect of costs: Philipiah at [42].
The Commission submitted that because of the application it had incurred legal costs. This included, but was not limited to, costs associated with reviewing the Tribunal's disciplinary decision and the application for reinstatement, correspondence to Mr Mackie, reviewing correspondence from Mr Mackie, attending the directions hearing, and reviewing the withdrawal application.
Mr Mackie's submissions are contained in two emails. The first email was addressed to the Commission and dated 16 March 2023 and into which the Tribunal was copied. A subsequent email was addressed to the Tribunal and dated 30 March 2023.
Mr Mackie stated that after the meeting with the Commission and the Tribunal, which in context appears to be a reference to the directions hearing which took place on 3 March 2023, he decided to withdraw his application. This was because he had no legal counsel and could not afford to secure legal assistance. Describing himself as a person outside the legal world, that in "going up against the HCCC" he would need legal help. He disputed that he should be required to pay the Commission's costs as he had no knowledge that he would be required to do so. He was not made aware of any potential costs associated with his application for reinstatement. He was not provided with any information about the potential consequences of his prior misconduct or that he may be required to pay fees if his application was withdrawn. He argued that he should not be held responsible for the Commission's costs because any fees associated with his application should have been made clear to him before he submitted his application. In sum he should not be required to pay the Commission's costs because he had no knowledge of any potential costs associated with the application.
Mr Mackie stated that if he had known that he would be responsible for the Commission's costs he would not have applied for reinstatement of his registration. As it stood, the reinstatement application had been withdrawn because he could not afford to go ahead with it. He referenced his own circumstances and indirectly by extension the burden a costs order would bring.
[4]
Relevant law
The Tribunal's power to award costs is conferred by clause 13 of Schedule 5D of the National Law. The power is broadly expressed, and, as relevant to this application, states:
13 Tribunal may award costs [NSW]
(1) The 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.
The purpose of a costs order is compensatory, not punitive. The power to award costs can be flexibly applied having regard to the circumstances of the case.
The relevant considerations and principles for the Tribunal in determining whether costs ought to be ordered are set out in Philipiah. At [42], Emmett JA stated:
"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]). …"
Costs are 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 the exercise of the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it: Philipiah at [43], referencing Williams v Lewer [1974] 2 NSWLR 91 at 95.
The intention of a costs order is to compensate a successful party, not 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: Philipiah at [44]
The Commission referenced Ristevski, in which although the practitioner was successful in his reinstatement application, a costs order was made in favour of the respondent Commission. As highlighted by the Commission, a reinstatement application normally has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. An applicant for reinstatement should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated, regardless of whether the order is granted or refused: see Ristevski at [87].
[5]
Consideration
In general terms, cost orders are ancillary to the disposition of substantive issues in controversy: Health Care Complaints Commission v Ake [2018] NSWSC 1170 at [11].
For costs purposes, a fundamental feature of the outcome of the original disciplinary proceedings is that a party, usually the Commission, has had to run its case often over the practitioner's opposition to satisfy the Tribunal that the practitioner was guilty of professional misconduct to secure an order that registration should be cancelled for the protection of the community: Health Care Complaints Commission v Ake at [24]. As made clear by Philipiah, provided there is no disentitling conduct, a costs order compensates the Commission for that work.
A feature of the outcome in a reinstatement application made by a practitioner is that there is a public interest in the Tribunal being assisted by the Commission. Without a contradictor, there is a potential risk that the Tribunal might only have available the self-serving evidence adduced by an applicant. In this sense, there is a public interest in ensuring that practitioners found guilty of professional misconduct are not lightly restored to the register: Ristevski at [71].
If a practitioner wants to return to practice, they must initiate reinstatement proceedings, and as the statutory contradictor, the Commission must respond to it. In this case, it cannot be said that there was any disentitling conduct on the part of either Mr Mackie by merely initiating the application or by the Commission in responding to the application.
It is the nature of the respondent's involvement in reinstatement proceedings which provides the material upon which to exercise the discretion to award costs. If there is value to the work done by a respondent Commission, for example in testing and responding to the substance of a reinstatement application which is directed towards the pursuit of the protective purpose of the disciplinary regime, then it is that work which is capable of being compensated.
The Tribunal should be vigilant in the making of costs orders and not compensate a respondent who proves in the preparation and conduct of their role to be unconstructive, unduly hostile, or whose participation proves to be token: Ristevski at [86].
In the circumstances of this case, the outcome of the proceedings was the withdrawal of the application. The matter did not proceed to hearing. There was no testing of, or responding to, by the Commission of the evidence put forward by Mr Mackie. There were no findings or disposition of what would have been the potential issues in the matter. There was no inquiry into whether Mr Mackie should or should not be restored to the register. It cannot be said that the value of the work done by the Commission and its participation assisted the Tribunal in the disposition of the substantive issues in controversy or the process of any inquiry into reinstatement.
Mr Mackie withdrew the application promptly after the first directions hearing. The timing of the withdrawal minimised and contained the Commission's costs to reviewing the Tribunal's original disciplinary decision and the application for reinstatement, some drawing and reviewing of correspondence, attending the directions hearing, and reviewing the withdrawal application.
The limited nature and extent of the Commission's involvement in these reinstatement proceedings does not provide a sufficient reason to justify the exercise of the discretion to award costs in its favour.
Overall, I am not willing to exercise the discretion to award the Commission its costs in relation to Mr Mackie's reinstatement application.
Mr Mackie referred to not being aware of the potential for a costs order and his financial circumstances as reasons why he should not be required to pay costs. Whilst it is understandable that a self-represented person may not appreciate the potential for a costs order, on its own this is not a factor which would counter against the making of a costs order. Nor is having limited financial resources. Accordingly, it is not for the reasons advanced by Mr Mackie that the Commission's application has been refused.
[6]
Orders
1. The application for costs by the Health Care Complaints Commission is refused.
[7]
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: 08 May 2023