Puri v Medical Council of New South Wales

Decision on the papers

1. The Tribunal is satisfied that the issue of costs of the Interlocutory Decision may be adequately determined in the absence of the parties by considering the written submissions filed by the parties: NCAT Act, s 50. The parties agree. Further, it is in the interests of expediency and efficiency that the issue of costs be determined without a hearing. This is consistent with the objectives and principles of the National Law requiring expediency under cl 11 of Sch 5D, and the "guiding principle" of the Tribunal (NCAT Act, s 36) which requires the "quick, just and cheap resolution of the real issues in the proceedings."

Legislation

1. Clause 13 of Sch 5D of the National Law relevantly provides: 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. … (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
2. Section 60 is the principal provision of the NCAT Act concerning costs. However, s 60 is expressly ousted by cl 13 of Sch 5D of the National Law.

Applicable principles

1. I did not apprehend there to be any dispute as to the general principles.
2. What follows is a list of the general principles. It is not an exhaustive list, nor a list of universal application; but of the principles the Tribunal has considered relevant to determination of this matter (noting the list includes some matters not specific to the National Law).
3. Principles relevant to the general rule, include: 1. Costs generally follow 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]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51], Kitoko v Sydney Local Health District [2024] NSWCA 49 at [129], Northern Territory v Sangare (2019) 265 CLR 164 (Sangare) at p 173; [2019] HCA 25 at [25]. 2. This is not an absolute rule: Health Care Complaints Commission v Wilcox (No 2) [2020] NSWCATOD 51 (Wilcox) at [9], Philipiah at [42]-[45]. 3. Costs are to compensate the winning party and are not a form or punishment: Philipiah at [44]; Kitoko v Sydney Local Health District [2024] NSWCA 49 at [129]; Sangare at [24] 4. What follows from the compensatory purpose of a costs order, is that if the winning party engaged in any conduct that disentitles them to costs, this will disturb the usual rule. As noted by Hennessy ADCJ in Health Care Complaints Commission v Balafas (No 2) [2021] NSWCATOD 175 at [3]: "Because costs are intended to compensate the successful party, the general rule will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: Arian v Nguyen [2001] NSWCA 5 at [36]; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40] and [69]." 1. The NCAT Occupational Division, Guideline on Costs, 2017, provides at [14]: "The Tribunal may make a costs order in disciplinary proceedings or an appeal brought under the Health Practitioner Regulation National Law. Costs are generally awarded to the successful party unless there are disqualifying circumstances." 1. In Moseley v AB (No 2) [2017] NSWSC 1812, Walton J outlined the principles of disentitling conduct at [71]-[73]. Examples of disentitling conduct were outlined by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [69] including: "'Misconduct' in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute." (Footnotes omitted) 1. As noted by Hennessy ADCJ in Health Care Complaints Commission v Balafas (No 2) [2021] NSWCATOD 175 at [3]: "The onus is on the losing party to establish a basis for any departure from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]"
4. Principles relevant where a party was not entirely successful, include: 1. The general rule will also be disturbed where there has been a mixed result and there is no clear winning party; or each party has won and lost on specific issues. 2. For instance, Cole DCJ in Wilcox at [10]. Her Honour said: "Where an applicant has been partially successful, but not wholly successful, in proceedings, that applicant may be ordered to pay the respondent's legal costs in relation to that portion of the action in which the applicant was unsuccessful (see James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [31] -[36], referring with approval to the remarks of Toohey J in the Federal Court in Hughes v Western Australian Cricket Association (1986) ATPR 40-748 )." 1. Principles relevant to deciding costs where multiple issues were in dispute, are collected in Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [6]-[11]. See too Philipiah at [42]-[45]. 2. The mere fact that a party has lost on a discrete point may not disentitle the party from costs: Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30 at [14]. 3. Costs may be apportioned or reduced; or various other orders may be made that reflect the circumstances and are consonant with the underlying decision. For instance, in Boateng v Dharamdas [2016] NSWCA 183, Gleeson JA (Leeming JA, Davies J agreeing) at [171]-[172], said: "[171] … As Hodgson JA explained in Commonwealth v Gretton [2008] NSWCA 117 at [121], 'underlying the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs'. Most of the time spent by the parties in submissions, both written and oral, was directed to the liability issues, on which the appellant failed apart from the finding as to the point of impact of the collision being upheld. [172] In the circumstances of the present case, justice requires that the respondent not bear all of the appellant's costs in this Court. In my view, the appropriate order would be that the respondent pay 40 per cent of the appellant's costs in this Court." 1. Costs should be paid in a way that is fair: Commonwealth v Gretton [2008] NSWCA 117 at [121].
5. Costs are in the Tribunal's discretion: 1. Ultimately, costs are at the discretion of the Tribunal: BounceLED Pty Ltd v Clear Skies Corp Pty Ltd (in liq) (No 2) [2023] NSWSC 810 at [36]. The discretion must be exercised judicially, with reference only to facts connected with the litigation: Northern Territory v Sangare (2019) 265 CLR 164 at p 172; [2019] HCA 25 at [24]. 2. Further, apportionment is discretionary and not mathematically precise: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [11], Nitopi v Nitopi (No 2) [2022] NSWCA 199 at [21], and James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36] (citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261). As Cole DCJ explained in Wilcox at [11]: "Costs are at the discretion of the Tribunal, and that discretion is to be exercised judicially. The issue cannot be resolved with mathematical precision and the discretion will often be exercised with regard being had to matters of impression and evaluation (see Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259)."

Submissions

1. The applicant submits that he was successful in the principal relief sought, in that a stay was granted pending the substantive appeal. Order 1 of the Interlocutory Decision was: "The decision of the Delegates dated 24 June 2023 suspending the applicant's registration is stayed on the conditions set out below, pending the determination of his appeal under s 159B of the National Law."
2. The applicant also submits that the lack of success in relation to the Non-publication Application should not disentitle him to costs, on the basis that the orders sought were incidental, and only occupied the conclusion of the hearing.
3. On the other hand, the respondent submits that the applicant was not entirely successful, even in the principal relief sought. The conditions placed upon the applicant were more onerous than the ones he had suggested. The applicant's practice has been circumscribed to a far greater extent than he sought. The respondent identified the following: "(a) Pursuant to the conditions imposed by the Tribunal, the [applicant] is not to treat any female patients, regardless of the presence of a practice monitor/chaperone. This is contrary to the position advanced by the appellant on his application. (b) Pursuant to the conditions imposed by the Tribunal, the [applicant] must obtain the approval of the Council prior to changing his place of practice. This was not a condition proposed by the appellant. (c) Pursuant to the conditions imposed by the Tribunal, the [applicant] must not undertake any telehealth consultations or home visits. This was not a condition proposed by the appellant. (d) Pursuant to the conditions imposed by the Tribunal, the [applicant] is subject to a random inspection of his practice. This was not a condition proposed by the [applicant]." (Emphasis in original)
4. Further, the respondent highlights that the evidence of Ms Hillier provided on the day of the hearing of the interlocutory application provided, for the first time, an evidentiary basis for the applicant's contention that there was, in effect, utility in granting the stay, because there was a medical practice willing to engage him in the circumstances.
5. Finally, so the respondent highlights, the applicant was unsuccessful in relation to his Non-publication Application.

Determination

1. In one sense, the applicant was successful: he sought a stay of the Suspension Decision and was granted a stay of the Suspension Decision. Further, the applicant quickly consented to the conditions suggested by the respondent and upon which the Tribunal determined the application.
2. On the other hand, the applicant failed to achieve the stay on the conditions that he initially sought: more onerous conditions were placed upon his practice. Further, the Tribunal notes that the evidence of Ms Hillier, was significant to the Interlocutory Decision, as it formed some of the basis for finding that it was in the public interest to grant a stay: the Interlocutory Decision at [45]. This material was provided late.
3. Further still, the applicant failed in relation to the Non-publication Application. Whilst the Non-publication Application did not add to the time of the hearing, written submissions were necessary.
4. On balance, this is an appropriate case for there to be no order as to costs.

Orders

1. The Tribunal orders: 1. Pursuant to s 50 of the Civil and Administrative Act 2013 (NSW), the Tribunal dispenses with a hearing on the issue of costs. 2. There be no order as to costs, to the intent that each party bears their own costs.

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: 12 August 2024