Nelson v Health Care Complaints Commission

THE ISSUES

1. The Applicant has made an application against the Respondent for payment of its costs associated with the Applicant's application for reinstatement which was granted by the Tribunal on 24 January 2023: Nelson v Health Care Complaints Commission [2023] NSWCATOD 5.
2. The Applicant seeks to recover his costs from the Respondent having successfully applied for reinstatement, or alternatively, for there to be no order as to costs.
3. The order made by the Tribunal provided that the costs associated with the application shall be determined by the Tribunal on the papers in due course.
4. The Tribunal had available to it submissions made by the Applicant and the Respondent and an affidavit by Matthew Thomas Hamlin, the Applicant's solicitor.

APPLICANT'S SUBMISSIONS ON COSTS

1. In written submissions to the Tribunal dated 12 May 2023, the Applicant stated as follows: "2. The Tribunal's power to make a costs order is found in clause 13 of Sch 5D to the National Law. That clause provides as follows: 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. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. 3. That discretion must be exercised judicially, that is, it must be 'exercised according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion' as explained by Starke J in House v The King (1936) 55 CLR 499; [1936] HCA 40. 4. However, the power is informed in part by the usual costs principles and the facts of the matter. The Applicant submits that the general costs principles relevant to the award of costs in the Tribunal were explained by Meagher JA in HCCC v Do [2014] NSWCA 307 ("Do"). At [51] His Honour explained: '[84] In HCCC v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event".' 5. First, the Applicant seeks an order for costs in his favour, with those costs to be assessed on the basis that he was wholly successful with his re‑instatement application. However, he acknowledges upfront that an order for costs in one party's favour, based on the general principle that costs follow the event, more appropriately applies to complaints matters rather than to reinstatement applications. That does not mean that the fact that he was successful on his reinstatement application is not a relevant factor. 6. The main authority on the issue of the determination of costs in reinstatement applications in the Tribunal is not [Ake v Health Care Complaints Commission [2019] NSWCATOD 165] but Donnelly v HCCC [2014] NSWCATOD 155 (Donnelly) in which it was noted that the compensatory principle 'is not necessarily apposite to reinstatement cases' ([55] - [57]). More specifically, the Tribunal observed: '[I]it has been the prior criminal actions, professional misconduct, professional incompetence or other actions rendering them not a suitable person to be registered to practise a particular health profession that has caused the need for the application for a reinstatement order. It is appropriate that at the inquiry triggered by the application for a reinstatement order that there be a contradictor to test the applicant's evidence, bring evidence itself in cases where that is appropriate or is effectively required by s 163C(3) of the National Law and to assist NCAT with submissions about relevant matters. This provides procedural fairness to the applicant first by ensuring that he or she knows what matters they have to deal with beyond those that they wish to put in support of their application. It also avoids NCAT having to pursue relevant matters unwelcome to the applicant directly with the applicant leading to possible apprehensions of bias on the part of the applicant and ensures transparency during the inquiry process. These considerations, and possibly others, give the basis for not awarding costs to an applicant and against the contradictor where the applicant succeeds in obtaining a reinstatement order from NCAT. On the other hand it does not necessarily follow that in addition to bearing his or her own costs an applicant should also pay the costs of the contradictor as another expense to be incurred in the process of seeking to return to a health profession from which they have been ejected by cancellation of their registration. ...' [56-58]. (emphasis added by Applicant) 7. Donnelly is based on Court of Appeal authority in HCCC v Do [2014] NSWCA 307 and the reasoning in Donnelly has been followed in the following cases: a. Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43; b. Roberts v Medical Council of New South Wales [2015] NSWCATOD 35; c. Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102; d. Haber v Health Care Complaints Commission [2018] NSWCATOD 16; e. Ledner v Health Care Complaints Commission [2019] NSWCATOD 30; and f. Girgis (née Tanios) v Health Care Complaints Commission [2019] NSWCATOD 126. 8. A review of the case law in Donnelly led to the conclusion that the applicable costs principles are flexible and that `the unfettered nature of the discretion is perhaps the primary principle': at [65]. 9. It is accepted by the Applicant that there have been other decisions of the Tribunal which take a different approach to costs in these types of applications. As explained by Her Honour Boland J in Chen v Medical Council of NSW (No 2) [2021] NSWCATOD 64 (Chen) who considered in some detail the conflicting and different approaches taken by the Tribunal as to costs on reinstatement applications including in Donnelly and Ake concluded at [31] "... while I accept that previous Tribunal decisions on this issue provide guidance, each case ultimately falls to he decided on its particular facts and circumstances." In short there is no automatic presumption that the Commission gets it costs as dictated by Ake. 10. In Donnelly which involved a successful application for reinstatement, the Tribunal declined to make a costs order on the basis that: 'In determining what to do about costs in this case, we note that neither the HCCC nor the successful applicant, Dr Donnelly, have done anything in the way they conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour. We also note that Dr Donnelly had no choice but to make the application to NCAT that he did make if he wished to obtain reregistration as a psychologist. Similarly such an application generates a role as contradictor for the HCCC. To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case: at 66' 11. In summary, in Donnelly no costs order was made in favour of the Applicant practitioner based on a balancing of the following factors: a. the practitioner had no choice but to make the application if he wished to obtain reregistration.... such application generates a role as contradictor for the HCCC; b. to award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the fact that costs are involved in acting as a contradictor or vice versa; c. the application for review flows as a consequence of proven misconduct of the practitioner; d. as the statutory contradictor, the Commission has to respond to the application; e. there was no disentitling conduct on the part of either party; f. the Commission's participation was helpful and promoted the public interest. It assisted in ensuring all relevant information came out and was properly tested enabling the Tribunal to be confident in the decision that a reinstatement order was appropriate and public properly protected. 12. Similarly, in Chen, the Tribunal (Boland J) declined to make any order for costs in part because the Applicant indicated that he would not oppose conditions on his registration if a re-instatement order was made and asked the Council to consider that position prior to hearing and then during the hearing made it clear that he accepted conditions should be imposed on his registration if a re-instatement order was made: see [34] and [35]. 13. The Applicant submits that substantially the same factors as were considered in Donnelly and Chen apply to this case with the exception that there was some [dis]entitling conduct on the part of the Commission, a public agency who should act as a model litigant. The NSW Model Litigant policy requires State agencies to not merely act honestly and in accordance with the law and court rules but it requires the State ... agencies to act with complete propriety, fairly and in accordance with the highest professional standards. Similarly obligations apply to public sector agencies at a Commonwealth level. In the Applicant's submissions the Commission did not meet up to model litigant standards such that the balance overall weighs in favour of the Applicant getting his costs paid on an ordinary basis for the reasons set out below. 14. In that regard, the Applicant contends the following matters weigh in favour of him on the costs discretion: a. the failure of the Commission to indicate its position in respect to Mr Nelson's application for reinstatement until 14 October 2022, being the date on which it served its Reply to the application; almost 8 months after the commencement of the proceedings on 22 February 2022 b. the failure of the Commission to serve paginated copies of Tab 10A and Tab 12 of its bundle of documents to be relied on at hearing, being the Applicant's medical records held by Dr Adrian Gilliland and Ms Kim Malone, respectively, which the Commission's counsel provided to the three Members at the Tribunal and did not serve a paginated copy on the Applicant or his lawyers such that significant detriment and confusion occurred at hearing in following and dealing with the Commission's Counsel's cross-examination of the Applicant. A hardcopy was provided to the Applicant's legal team after lunch at the hearing and until then the Applicant's counsel had to rely on a copy of the evidence provided by one of the members. As a state public body, the Commission is meant to be a model litigant subject to the requirements of NSW Model Litigant Policy - service of material on the Tribunal without the same material being provided to an Applicant is not fair and should have never occurred; c. the Commission's provision of Tab 10A and Tab 12 of its bundle of documents was further complicated as the unpaginated versions of Tab 10A and Tab 12 served on 14 October 2022 comprised 166 and 93 pages, respectively, whereas the paginated bundle of documents served after lunch at the hearing comprised 164 and 91 pages, respectively. The Commission did not bring this to the Applicant's Counsel's attention and did not provide any explanation for the discrepancy between the unpaginated and paginated versions of documents which were used for the cross-examination of the Applicant. This further contributed to detriment and confusion for the Applicant's legal team at hearing and again should never have occurred; d. the failure of the Commission to inform the Applicant it required Dr Matthew Jones, Psychiatrist, for cross-examination until 3 November 2022 which caused significant stress and panic in circumstances where his expert report on the Applicant's fitness for re-registration was filed and served on the Commission on 26 September 2022; e. the failure and adamant refusal of the Commission to engage in any discussion surrounding the proposed conditions of registration with the Applicant both before; at the hearing or after the hearing; f. further, and significantly, the Applicant made it clear that he was happy to agree to reasonable conditions being imposed on his registration. Dr Jones's expert report dated 12 September 2022 raised various conditions that could be placed on the Applicant's registration to mitigate any potential risks or concerns regarding his return to practice. The Applicant's lawyers wrote to the Commission on 25 October 2022 asking for the Commission to suggest conditions for the Applicant's consideration in light of Dr. Jones's expert report. For the convenience of the Tribunal, Dr Jones stated in his report as follows: 'There are multiple potential suitable conditions on registration that would assist in mitigating risks or concerns regarding Mr Nelson returning to practice. These would include such measures as graduated limited exposure to clients, the use of chaperones, the use of multiple supervisors, ongoing psychological and psychiatric monitoring. These measures are well and truly in the experience of bodies such as AHPRA and the Nursing and Midwifery Board.'; g. the Commission failed to consider the sole expert opinion of Dr Jones on what he considered to be routine matters and conditions for AHPRA and the Nursing and Midwifery Board and did not even respond to the Applicant's lawyers suggestion of conditions until 7 November 2022, the day before the hearing, when it informed the Applicant's lawyers it was not in a position to comment on any conditions as it takes the view that the Applicant will not satisfy the Nursing and Midwifery Board of Australia's (NMBA) recency of practice registration standard, a prerequisite to registration with the Australian Health Practitioner Regulation Agency (AHPRA). It goes without saying but it is not the role of the Commission to deal with registration requirements that is solely for AHPRA; h. At the end of the hearing the Senior Member then invited the Commission [to] make submissions on appropriate conditions. One would have thought that this was the role of a contradictor. The Commission still refused to engage in any proper consideration of the Applicant's proposed conditions and continued with its primary position that no conditions should be imposed; i. Ultimately, the Commission's submissions were wholly rejected by the Tribunal and it found at [31]: 'The Tribunal is of the view that it is entirely appropriate, if granting a reinstatement order, to impose such conditions on the Applicant when applying for reregistration and leaving it to AHPRA and the Nursing and Midwifery Council to determine whether they believe that any additional or varied conditions should be imposed on the registration of the Applicant.' The Tribunal noted further the Respondent's reluctance to engage with the proposed conditions in its decision at [32]; j. the Applicant's upfront and open concession he would agree to conditions being attached to his registration and the adamant and incorrect refusal by the Commission to engage in proper discussions of the proposed conditions is a significant factor that weighs in favour of the Applicant especially when one considers the role of the Commission was meant to be that of a contradictor who is meant to assist the Tribunal. In short, the Commission should not be compensated for its role as a contradictor when it failed to carry out part of that role; k. The significance of the Applicant agreeing to conditions on reinstatement on costs orders was considered by Boland J in Chen v Medical Council of NSW (No 2) [2021] NSWCATOD at [34]. Not only did the Applicant indicate at hearing his willingness to not oppose conditions on his registration, the Applicant invested significant time and legal costs in preparing detailed conditions for registration for the Tribunal to consider upfront and which were attached to his submissions and ultimately adopted by the Tribunal with little or no amendment: see paragraph [33] of the decision. This is a significant factor in favour of the Applicant together with the expert's report similar to the case of Chen. 15. Alternatively, the Applicant submits that if the Tribunal finds that the Applicant should not be compensated for his costs or that the conduct by the Commission does not constitute disentitling conduct, then he submits that he should not have to compensate the Commission for its costs and the appropriate order is that each party bears its owns costs. The Applicant submits that such an order would be consistent with the authority in Donnelly and relies upon the following portion of the judgment in Donnelly at [66] - [67]: 'In determining what to do about costs in this case, we note that neither the HCCC nor the successful applicant, Dr Donnelly, have done anything in the way they conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour.... To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case.' 16. No costs order should be made on the following basis: a. Mr Nelson had no choice but to make the application if he wished to obtain reregistration.... such application generates a role as contradictor for the HCCC; b. to award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the fact that costs are involved in acting as a contradictor or vice versa; c. the application for review flows as a consequence of proven misconduct of the practitioner; d. as the statutory contradictor, the Commission has to respond to the application; e. there was no disentitling conduct on the part of either party; f. the Commission's participation was helpful and promoted the public interest. It assisted in ensuring all relevant information came out and was properly tested enabling the Tribunal to be confident in the decision that a reinstatement order was appropriate and public properly protected; and g. the Applicant agreed upfront reasonable, if not very reasonable, conditions on his registration which were adopted in the main by the Tribunal with little or not contribution by the Commission even after the Tribunal invited the Commission to engage in discussion around conditions." (Footnotes omitted)