Mahadik v Medical Council of New South Wales

The Practitioner's submissions

1. The Practitioner relied significantly on what can be described as the Council's changing of position with respect to the conditions which were appropriate to be attached to the Practitioner's registration. It was submitted, accurately, that on the first two days of the hearing (24 and 25 July 2023) the Council submitted that the conditions (including Category A supervision) imposed by it pursuant to s 150 should be upheld. On the third day of the appeal hearing the Council was submitted, accurately, to have sought Category B supervision. It was submitted that, shortly prior to the final two days of the appeal hearing, in February 2024, the Council changed its position and proposed Category C supervision, and conditions which were submitted to "bear a resemblance" to those which the Practitioner had proposed "from the outset".
2. The Practitioner referred to the evidence of Professor Deva and Dr Curtin in cross-examination in July 2023, and submitted that, having heard that evidence, the "Professional members of the Tribunal, Dr Sheridan and Dr Barnett recognised and expressed their concerns on day three of the appeal hearing that both Category A and Category B (as now being proposed by the Council) were "pretty restrictive", "impractical" and "conditions that act as a de facto suspension that make it impossible to practice". The Practitioner relied on Dr Sheridan having raised with the Council his concern that "being able to have another FRACS plastic surgeon, a specialist surgeon, in the same place at the same time is not going to happen. It would be nigh on impossible to achieve". The Practitioner relied on Dr Curtin agreeing with Dr Sheridan's observations. It was accordingly submitted by the Practitioner that "despite both experts' lack of support for Category A supervision as being necessary for the health and safety of the public; and despite the concerns raised by the Professional Members of the Tribunal that the Medical Council's altered conditions (Category B supervision) still amounted to a de facto suspension and (were) impossible to meet, the (Council) maintained that Category B supervision was necessary".
3. The Practitioner relied on the position of the Council after the hearing in July 2023. The Practitioner referred to his written request to the Council of 17 August 2023 to review the conditions attaching to his registration pursuant to ss 150A and/or 150C of the National Law in the light of the evidence the previous month referred to above. The Council responded on 25 August 2023 stating that it did not believe that it could review the conditions as the s 159 appeal was part-heard. It was submitted by the Practitioner that there was "no authority for this proposition nor any section of the National Law to support this view". It was further submitted that the Council's position appeared to be "inconsistent" with the practical implications of Exhibit R4 - the amended conditions which the Council relied upon on day three of the part-heard s 159 appeal. The Practitioner relied on the Council, in correspondence with him, having suggested that attempts be made to reach agreement with respect to conditions and ask the Tribunal to make consent orders. No agreement resulted from such overtures.
4. The Practitioner relied upon his further requests, on 12 September 2023, and 15 January 2024, to review the conditions attaching to his registration in the light of the further evidence to which the Tribunal has referred. On 29 January 2024 the Council informed the Practitioner that it would consent to Category C conditions, but with additional conditions attaching. On 31 January 2024 the Practitioner responded, maintaining his original position. On 1 February 2024 the Council replied, rejecting the Practitioner's suggested conditions and providing further amendments to those conditions. On 2 February 2024 the Practitioner communicated with the Council, reaffirming his position with respect to the proposed Category C conditions, and rejecting the Council's suggested amendments.
5. The Practitioner submitted that: "On 5 February 2024, namely 13 months after the Applicant lodged his appeal, just shy of 8 months after the Applicant first proposed Category C supervision (Exhibit A1); and 7 months after the expert evidence was known to the Medical Council and 6 months after the Applicant's s150A/150C reviews were submitted to the Respondent, the Respondent tenders its proposed conditions before the Appeal Tribunal which included Category C supervision. No new evidence had come to light since the 3 day hearing in July 2023. No change of circumstances had occurred since the s150A/150C reviews had been submitted in August 2023. The new proposed conditions were forwarded one week prior to the recommencement of the part-heard s159 appeal and in circumstances where the Applicant's life and livelihood had been placed on hold since January 2023. Further, the newly proposed conditions of the Medical Council were sent to the Applicant after the lion [sic] share of work in preparation for his appeal had been completed."
6. The Practitioner further submitted that the conditions ultimately proposed by the Council were not the conditions which the Tribunal imposed, which were "almost entirely" those which the Practitioner had proffered in June 2023 "but for some minor variations". The Practitioner submitted that, in the circumstances upon which he relied, it was appropriate that the Council be ordered to pay his costs. It was submitted that the Practitioner had been successful with his appeal. It was further submitted that to argue that both parties were successful because the council "altered its position on day 4 of the appeal hearing and 13 months after the appeal was lodged and was listed part-heard, ignores the chronological history outlined above". That history was submitted to argue "overwhelmingly" for the discretion to award costs in favour of the Practitioner to be enlivened.
7. The Practitioner referred, correctly, to the general rule in proceedings before the Tribunal pursuant to the National Law that costs follow the event; Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282; Health Care Complaints Commission v Do [2014] NSWCA 307. The Practitioner also relied upon the Tribunal's guideline which was consistent with those authorities. The Practitioner submitted that there had been no "disqualifying or disentitling conduct" on his part so as to displace the presumption in favour of costs. If it is appropriate to make a costs order in favour of the Practitioner, the Tribunal would not decline to do so on the basis of any alleged disqualifying or disentitling conduct on his part.
8. The Practitioner further submitted that there was no circumstance in this case which would justify a departure from the general rule that costs should follow the event (Hawkesbury District Health Services Limited v Chaker (No. 2) [2011] NSWCA 30). The Tribunal accepts that, if the discretion to award the Practitioner costs is enlivened, there would be no reason to depart from the general rule. As will be seen, the issue is whether the "event" constituted by the Tribunal's decision in the appeal enlivens the general rule upon which the Practitioner relies. With respect to that issue, it was submitted that the Practitioner had been successful in obtaining "the principal relief sought in the appeal, being Category C supervision and save for some minor changes of form not substance, the conditions he proposed in June 2023 have been imposed". The Practitioner submitted, correctly, that the Council bears the onus of demonstrating a basis for departing from the usual rule (Waterman v Gerling Australia Insurance Co Pty Limited (No. 2) [2005] NSWSC 1111).
9. The Practitioner submitted that the "troubling aspect" of the appeal was the "conduct" of the Council. It was submitted that the Council had not explained why it did not review "informally or otherwise" the ss 150A/150C review sent to it by the Practitioner in August 2023, following three days of expert evidence which argued strongly in favour of Category C supervision as being appropriate. The Practitioner further relied on the Council, when it responded to his requests "on the eve of the appeal hearing recommencing" proposing Category C supervision in view of the absence of any change in circumstances after the August 2023 ss 150A/150C review requests. The Practitioner ultimately submitted that had the Council adopted its January 2024 position with respect to conditions in July 2023, accepting Category C supervision, the Practitioner would "arguably" have been in practice twelve months sooner. For those reasons, the Practitioner submitted that he had been wholly successful and that he should be awarded his costs.

The Council's submissions

1. The Council opposed the Practitioner's application for costs and sought that each party bear his or its own costs of the proceedings. It was submitted that the Practitioner had not been "wholly successful" for a variety of reasons, including: 1. the Tribunal's order to advise the Council in writing at least 28 days prior to changing the nature or place of his practice was "different to what either party proposed"; 2. both parties agreed to Category C supervision prior to the commencement of the fourth and fifth day of the appeal hearing, however the Practitioner was materially unsuccessful in relation to the wording of two of the protective orders made by the Tribunal; 3. the Practitioner opposed any condition in relation to the need to observe phalloplasties, and, whilst the wording of a condition with respect to such procedures imposed by the Tribunal differed from that proposed by the Council, the Tribunal "found it necessary to impose a condition in relation to such issue; and 4. the Council sought that the Practitioner undergo a performance assessment, which he opposed, which was ordered by the Tribunal.
2. The Council relied on the Tribunal's finding that the change of position of the Council was appropriate in view of the evidence before the Tribunal and that there remained "important differences" in the parties' positions. It was submitted, accurately, that it was to the credit of both parties that the issues in dispute in the appeal were progressively narrowed during the hearing.
3. The Council relied on the time taken up during the hearing by the Practitioner's challenge to the evidence of Professor Deva, the Council's expert, and the Tribunal's findings in that regard which were benign with respect to the criticisms levelled of Professor Deva. The Council relied on the Tribunal's findings that the Practitioner's "inexperience" went beyond the concessions which the Practitioner made during the proceedings and the adverse findings with respect to the Practitioner's treatment of Patients A and B.
4. The Council further submitted that the criticisms of its conduct of the proceedings found no support in the Tribunal's reasons for its decision. That is undoubtedly correct, but that does not mean that it is not open to the Tribunal to have regard to the parties' conduct of the proceedings in the context of determining the Practitioner's costs application. The Tribunal accepts that the Council has at all material times acted in good faith, and in accordance with what it from time to time considered to be in the interests of public health and safety. So doing does not however necessarily render the Council immune to an order for costs.
5. The Council submitted, correctly in the Tribunal's view, that the seriousness of the proceedings, the issues raised, and the Tribunal's ultimate findings rendered it necessary and appropriate that the evidence of the experts and the Practitioner was tested during the course of the proceedings. The Tribunal accepts that contention, at least until the conclusion of that testing, and the observations of the professional members of the Tribunal on which the Practitioner relied.
6. It was submitted that the Commission's decision to refer the matter back to the Council was not relevant, and that it remained necessary for the evidence to be tested and the nature of the wording of appropriate protective orders to be determined in the light of the testing of that evidence. Without expressing a concluded view, that contention appears well founded having regard to the different roles of the Commission and the Council.
7. The Council disputed that the conditions imposed on the registration of the Practitioner were, with "only minor variations" those which the Practitioner offered. That submission was supported by reference to the differences between the conditions sought by the Practitioner, and those ordered by the Tribunal identified earlier in the Council's submissions. The Council submitted that it was not the fault of either party that the proceedings were as prolonged as they were. The Tribunal accepts that was the case. The Tribunal cannot accept that, notwithstanding a comparative absence of success in that regard, the length of the cross-examination of the Council's expert Professor Deva necessitated the further hearing dates. Neither party conducted the hearing of these proceedings in other than a timely, professional and courteous manner, for which Counsel for both parties are to be commended.
8. The Council submitted that it was not inappropriate for it to have declined to entertain the Practitioner's request for reviews pursuant to s 150A or s 150C of the National Law in August 2023, given that the hearing of the appeal was due to resume less than two months later, being subsequently adjourned due to the unavailability of Members of the Tribunal to resume on those dates. There is force in that contention, particularly given the subsequent, and comparatively successful attempts to resolve the conditions which were ultimately attached to the Practitioner's registration.
9. The Council disputed that, as a result of its conduct, the Practitioner had been unable to earn a living. The reasons advanced by the Council in that regard (paragraph 16) are compelling. The evidence does not establish either that the Council acted unreasonably at any time during these proceedings or that anything done by the Council caused the Practitioner to suffer financial detriment. That said, it is likely that having the proceedings hanging over him was not an enjoyable experience for the Practitioner.
10. In the Practitioner's submissions in reply, much of his primary submissions were reiterated. The Practitioner disputed that he had not been wholly successful on appeal. The Practitioner submitted that he sought removal of the conditions imposed by the Council and the imposition of Category C supervision in lieu thereof which was "precisely what occurred on appeal". In respect to the Tribunal's determination of the ultimately limited disputed conditions, the Practitioner submitted: 1. That the only difference between the orders proposed by the Practitioner and those made by the Tribunal was the timeframe, seven days as opposed to twenty-eight days and that the Practitioner's proposal (advised) was preferred to the Council's proposal (obtained) with respect to changes in the Practitioner's practice; 2. The Tribunal included two additional sub-conditions which were not proposed or sought by the Council; 3. As was discussed at length in the hearing the Practitioner approached the two surgeons in Australia who would be appropriate to observe phalloplasties, neither of whom was willing to do so, the Practitioner not being cross-examined on that evidence, the Tribunal ultimately ordering that the Practitioner may observe phalloplasties overseas; 4. The only order on which the Council was successful (performance assessment) being one which took up "negligible time" at the hearing of the appeal. The Practitioner submitted that the Council had been further unsuccessful with respect to the content of supervision reports which he was obliged to submit, the inability to undertake cosmetic surgery procedures until a supervisor had been approved by the Council and the observation of phallo plastic surgery being limited to surgery performed in Australia. It was submitted, correctly in the Tribunal's view, that the cross-examination of Professor Deva did not amount to disqualifying circumstances. It was ultimately submitted that "at a minimum" the Practitioner should be entitled to all costs incurred between the date of his appeal (11 January 2023) and 29 January 2024, when the Council advised the Practitioner for the first time that they consented to Category C supervision with the proviso of further additional conditions, albeit the Council was ultimately largely unsuccessful in seeking the imposition of those conditions.

Consideration

1. Determining the present application is not simple or straightforward. The Tribunal does not find that the Practitioner was wholly successful. Realistically, by the conclusion of the hearing of the proceedings, there were few remaining disputed issues requiring determination, albeit, as the Tribunal's reasons record, they were not trivial or insignificant matters. With respect to what ultimately remained to be determined, each party achieved a measure of success and failure. Although the Practitioner was marginally more successful, neither party was materially more successful in relation to those issues than was the other.
2. The absence of that finding, by reason of which the usual rule, that costs follow the event, is not enlivened, does not mean that the Practitioner's application for costs must fail.
3. Until the testing of the expert opinion evidence relied upon by each party, it was in the Tribunal's view not unreasonable for the Council to adhere to the position it adopted up to that time. In view however of the course of the expert evidence in cross-examination, and particularly the evidence to which the Practitioner referred in his submissions, it was appropriate for the Council to reconsider its position in response to the Practitioner's requests to do so in August 2023, whether that was done formally in the manner sought by the Practitioner, or informally by way of negotiations with a view to reaching an agreed position and presenting it to the Tribunal for the Tribunal's consideration. There is little doubt having regard to the issues which ultimately required determination, and the Tribunal's findings with respect to them, that any resolution reached by the parties after the expert evidence was tested in July 2023 would have been accepted by the Tribunal as adequate to protect the health and safety of the public.
4. The Tribunal accepts the contention of the Practitioner that there was no legislative impediment to the Council considering his request to review the conditions which it had attached to his registration pursuant to s 150 of the National Law in and after August 2023. As the appeal was due to resume less than two months after that request, although it could have, it was not unreasonable for the Council to defer consideration of the Practitioner's requests until after the hearing resumed. When the resumption of the hearing was deferred for a further four months, through the fault of neither party, it was appropriate for the Council to reconsider its position, which it did, albeit not until 29 January 2024.
5. The reality that it was not until 29 January 2024 that the Council indicated its willingness to consent to Category C conditions provides support for awarding the Practitioner his costs from 17 August 2023 to and including 31 January 2024, two days after the Practitioner was informed by the Council that it consented to Category C conditions, albeit with additional conditions. The Tribunal accepts that, by that time, the "lion's share" of the work required to complete the appeal had been undertaken.
6. The objective of a costs order is to compensate the party in receipt of such order, rather than to punish the party against whom it is made. The Tribunal does not find that the Council at any time acted other than in good faith and in the belief that so doing was in the interests of public health and safety. The fact remains that, after the testing of expert evidence in July 2023, to which the Practitioner has made particular references, and in the absence of further or new evidence thereafter, on 29 January 2024 the Council materially changed its position by accepting Category C conditions. It could, and should have done so much earlier. If it had, in view of the course the case took over the final two days, the parties may well have reached agreement prior to the resumption of the appeal, or even further narrowed the issues requiring determination, thereby reducing the duration of the further hearing.
7. In the circumstances identified above, it is difficult to suggest why the Council should not pay the Practitioner's costs between 17 August 2023 and the first day of the resumed hearing. Such an order would go as close as possible to putting the Practitioner in the position in which he would have been, had the Council made the concessions which it appropriately made on 29 January 2024 much earlier.
8. Each party acted reasonably in seeking the conditions which each sought at the resumed hearing. As recorded earlier, neither party was overwhelmingly successful in that regard. An order in the terms indicated above would, in the Tribunal's view, best meet the justice of the case.

Conclusion

1. In all the circumstances, the Tribunal considers the order which best meets the justice of the case, in the circumstances considered above, is that the Council pay the Practitioner's costs of and incidental to the proceedings from 17 August 2023 to the completion of the first day of the resumed hearing in February 2024 on a party and party basis as agreed or assessed.

Orders 1. That, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal dispenses with a hearing of this application. 2. That the Medical Council of New South Wales pay the costs of Dr Parag Jayant Mahadik from 17 August 2023 to 5 February 2024 as agreed or assessed on a party and party basis.

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: 11 October 2024