s 64(1)
Health Practitioner Regulation National Law (NSW), s 3B
s 149C(1)(b)
Ex Parte Lai Qin [1997] HCA 6
(1997) CLR 622
Ristevski v Medical Council of NSW [2016] NSWCATOD 18
Tziniolis
Source
Original judgment source is linked above.
Catchwords
s 64(1)
Health Practitioner Regulation National Law (NSW), s 3Bs 149C(1)(b)Ex Parte Lai Qin [1997] HCA 6(1997) CLR 622
Ristevski v Medical Council of NSW [2016] NSWCATOD 18
Tziniolis
Judgment (2 paragraphs)
[1]
REASONS FOR DECISION
The applicant, Mr Jamal Moussa, a former registered medical practitioner, had his medical registration cancelled on 3 March 2022 pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) ("the National Law") following a hearing before a differently constituted Tribunal: Health Care Complaints Commission v Moussa (No 3) [2022] NSWCATOD 26.
Essentially, that cancellation order was founded upon four findings of unsatisfactory professional conduct and one finding of professional misconduct: Health Care Complaints Commission v Moussa (No 2) [2021] NSWCATOD 173.
The four findings of unsatisfactory professional conduct related to clinical matters, including inappropriate drug prescribing and record keeping. The finding of professional misconduct was more serious and related to the applicant's acknowledged breach of professional boundaries with respect to a female patient referred to as Patient A, which raised questions of practitioner insight into doctor and patient boundary issues.
The 3 March 2022 decision to cancel the applicant's registration, at paragraphs [34] and [35], allowed scope for the applicant to make an application for reinstatement after the lapse of a period of 12 months. On 24 July 2023, pursuant to s 163B of the National Law, he exercised that right by filing the present application, which was partly heard by this Tribunal on 29 and 30 May 2024.
On 30 May 2024, the applicant, after consulting with his legal representatives, decided to withdraw the present application and a formal order was made to that effect of dismissing the application: s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). Consequently, the application has not been determined on its merits.
The applicant's apparent reason for taking that course was that there were several emergent evidentiary difficulties that could have militated against a reinstatement order being made in his favour at this time.
In essence, those multifactorial difficulties included the following matters:
1. The applicant gave his evidence by AVL from Lithuania, where he has lived and worked since having to leave Australia following the expiry of his visa after his medical registration was cancelled. Consequently, there were impecuniosity and communication difficulties, and difficulty accessing appropriate assistance and resources;
2. In his evidence, the applicant acknowledged the existence of some personality and character flaw issues, including interpersonal social interaction skills, possibly in part related to his upbringing, his family and cultural background, and past traumas. In evidence he revealed that some of those matters had been the focus of some psychological and psychiatric consultations that took place before he was compelled to leave Australia on account of his visa conditions;
3. The applicant's described impecuniosity appears to have been a reason why explanatory evidence on those matters has not been the subject of historical evidentiary reports concerning the assessment and treatment of the applicant's psychological issues. Those matters appear to have some significant bearing on relevant questions such as his capacity for remedial insight into the matters that led to his deregistration, and his fitness to resume practise when viewed against the paramount consideration of the need to protect the health and safety of the public: s 3B of the National Law.
As a consequence of the withdrawal of the application, the Medical Council, as regulator and contradictor, submitted that, absent disentitling conduct on its part, the wasted costs it has incurred in appearing and preparing to meet the now withdrawn application should be borne by the applicant as the usual consequence of unsuccessful litigation. The Medical Council made extensive costs submissions by reference to a number of previously decided cases where uncontroversially, cost orders had been made against applicants seeking reinstatement.
The determination of the cost arguments in these administrative law proceedings where the public interest is the paramount consideration involves the exercise of reasoned discretion: House v The King [1936] HCA 40; (1936) 55 CLR 499.
The usual order for costs incurred in litigation, subject to certain limited exceptions, is that a successful party is entitled to a compensatory order for costs: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, at [67].
In that case, at [69], it was noted that the traditional exceptions to the usual order for costs focussed upon the litigation conduct of the successful party to determine whether there has been disentitling conduct by that party that would deprive it of the beneficial exercise of discretion.
In these proceedings there is no suggestion that the Medical Council has acted unreasonably in any way so as to disentitle it to an order for costs. On the contrary, it has properly represented the public interest.
That said, the applicant argued that following the withdrawal of his application, where there has been no hearing on the merits, in these administrative law proceedings, there should be no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6; (1997) CLR 622 (Lai Qin).
In that case, it was determined that where it appears that both parties have acted reasonably in commencing and defending proceedings, and where they have continued to act reasonably until the point where the proceedings became futile, the proper exercise of the costs discretion will usually mean that the court will make no order as to the costs of the proceedings. In identifying that principle, it was noted that approach had been adopted in a large number of cases: Lai Qin, at p 625.
In that case, it was noted that the general rule is that the discretionary power to award costs is exercised in favour of the successful party after a hearing on the merits, and where there has been no determination on the merits, a court (in this case a Tribunal), is necessarily deprived of the opportunity to consider the factor of merit that usually determines whether or how it will make a costs order: Lai Qin, at p 624.
Those principles have been applied in many subsequent cases: Muhibbah Engineering BHD v Trust Company Limited [2009] NSWCA 205, at [39]; [53]; Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107, at [23]; Price v Price [2020] NSWCA 312, at [32]; [43]; Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84, at [25] - [26]; McIntosh v Morris [2021] NSWCA 225, at [86]-[87].
Applying those principles to the present case, there is no evidence that either party has acted unreasonably in this case. On the evidence, the applicant must necessarily be seen to be disadvantaged by his geographic location and his impecuniosity. The burden of those factors has militated against his ability to obtain and present cogent evidence from his former treating psychologist and psychiatrist in relation to the treatment he sought from those practitioners before he was compelled to leave the country due to the limited terms of his visa.
During the hearing, following the completion of the evidence of the applicant, it became clear to the Tribunal and to the parties that the absence of evidence along those lines was a critical factor of relevance to the outcome of these proceedings if they were to be determined on the merits on the limited state of the evidence.
Plainly, that realisation led to the applicant withdrawing the present application so that there would be no bar to him in due course pursuing a further application based upon an augmented array of evidence.
The absence of that evidence is of critical importance to the applicant's case on the issue of whether, through his pursuit of a course of consultations with a treating psychologist and a treating psychiatrist, there is available and acceptable corroborative evidence of a material reformation of the applicant's acknowledged prior shortcomings which led to his deregistration.
The relevance of that absent evidence is the established principle that it is not in the public interest that a deregistered former practitioner be forever barred from reinstatement if it can be acceptably shown that there has been an insightfully rehabilitated redemptive acceptance of past flaws such that, on reinstatement, the health and safety of the public would be appropriately protected if the former practitioner were to be afforded a second chance to practise: s 3B of the National Law; Mooney v Medical Council of NSW [2024] NSWCATOD 24, at [15], following Dawson v Law Society of NSW [1989] NSWCA 58, at p 7, lines 10-20; Zepinic v Health Care Complaints Commission [2000] NSWSC 13, at [85(5)].
The pivotal event which led to the withdrawal of the application was the applicant's apparent realisation that "clear proof" of the reformation of his character may have been lacking: Tziniolis; Re Medical Practitioners' Act (1966) 67 SR 448, at p 461. Plainly, it appears that he intends to address that matter of public interest in a further application, supported by cogent evidence.
In considering the costs question, the Tribunal has not overlooked the Medical Council's submission that it is funded by the medical profession through the payment of registration fees, and it should be reimbursed for the costs it has incurred by a compensatory order for costs in its favour.
Although the superficial attractiveness of that funding argument appears self-evident if the Medical Council is simply viewed as being a successful litigant, a deeper analysis is required. This is because the Medical Council also appears in a regulatory capacity, in the public interest, and as such, it is not an ordinary litigant.
In that regard, in my view, the fact that the funds of the Medical Council are collected and expended in the public interest should be seen to be a "totally irrelevant factor" as the source of the regulator's funds has no bearing on the costs issue to be determined: Lai Qin, at p 629.
The compelling conclusion from the foregoing consideration is that neither party has acted unreasonably, and therefore, for the purpose of determining the appropriate costs order in this case, the described circumstances, are "exceptional": Ristevski v Medical Council of NSW [2016] NSWCATOD 18, at [88]. It follows that absent a hearing on the merits, the appropriate order for costs should be no order for costs.
Accordingly, the Tribunal makes the following orders:
1. It is noted that pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the application filed on 24 July 2023 is withdrawn, and is therefore dismissed, without a hearing on the merits.
2. No order as to the costs of the withdrawn and dismissed application.
3. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the name of any patient or witnesses other than expert witnesses referred to in these proceedings is prohibited.
[2]
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: 07 June 2024