Riley v Health Care Complaints Commission

NCAT Occupational|2019-04-29

Solicitors: HWL Ebsworth Lawyers (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2018/ 00257148

BACKGROUND

On 12 April 2019 the Tribunal published its' decision in this matter (date of decision 10 April 2019) and made an order as follows: "Pursuant to s. 149A(1)(a) of the National Law Dr Jonathon Riley is cautioned in relation to his record making in respect to a procedure performed by him as an anaesthetist on 15 April 2013."
Pursuant to directions which had been made on 11 February 2019 the respondent (HCCC) filed a document titled "Respondent's Submission on Costs". That document had attached to it a proposed order which was sought by the respondent should the application be successful. That order is in the following terms: "The appellant pay the costs of the Respondent of and incidental to these proceedings as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Application Act 2014."
On 26 April 2019 the appellant filed a document titled "Dr Riley's Submission re Costs". In that document he sought the following order in relation to costs: "Order that there be no order as to costs."
Each of the parties informed the Tribunal in their written submission that they did not require any further oral hearing.

THE SUBMISSIONS OF THE RESPONDENT

The respondent makes the following points:

The Tribunal declined to uphold the appeal from findings of a Professional Standards Committee (PSC).
The appellant failed to establish to the satisfaction of the Tribunal that the complaint against him (Complaint Two) did not amount to unsatisfactory professional conduct.

The respondent directed the Tribunal's attention to Clause 13 of schedule 5D of the National Law, which it submitted, provides the power for the Tribunal to award costs following a determination by the Tribunal as has occurred in this case.
Clause 13 of Schedule 5D of the National Law is 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.
The respondent referred the Tribunal to reported decisions, which it submitted would assist the Tribunal in reaching a decision in this costs application. In particular portions of the decision of the NSW Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 were included in the submission. In paragraphs [42] to [45] the Court of Appeal cites examples of where a costs order may be appropriate. The decision reinforces that the awarding of costs requires the exercise of a discretion by the Tribunal, which discretion is a judicial one and "must be exercised according to proper fixed principles and rules of reason and justice"(Williams v Lewer (1974) 2 NSWLR 91 at 95). Further the court said that "costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party." The court said: "The normal price to be paid for a practitioner's disputing a complaint and loosing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commissions' costs".
The respondent submitted further that the Tribunal would consider the following matters when reflecting upon whether a costs order, as sought, should properly be made:

No costs order was made in relation to the hearing which was conducted before the PSC.
The appellant could have filed documents in this matter admitting to the facts asserted by the respondent and thus eliminating the cost and time lost in presenting a case to establish the complaint, about which there was no relevant factual dispute.
The Tribunal's finding that the respondent had not made out its' case that Dr Riley was in breach of clause 1(2)(a) of Schedule 2 of the Regulation (paragraph 109 of the judgment) is of no relevance to the questions of costs. The hearing was required in any event and there has been a finding of unsatisfactory professional conduct.
The Tribunal rejected the case of the Appellant that even if his conduct did amount to unsatisfactory professional conduct, no further order should be made. That case was rejected by the Tribunal.

THE SUBMISSION OF THE APPELLANT

The appellant submitted he gained "partial success" on appeal. He referred to the decision in Lucire v Health Care Complaints Commission (No. 2) [2011] NSWCA 182 at paragraph [48], which decision, he said, recognised "that costs should, in accordance with general principles, follow the event."
The appellant submits that this case demonstrates that the appeal was partially successful, in that, the HCCC had sought the imposition of a "reprimand" upon Dr Riley. In that pursuit the respondent was unsuccessful. The respondent submits that failure had serious repercussions for the appellant. That matter was the subject of paragraph [151] of the judgment.
The appellant submits it was a matter of great significance to him that a "reprimand," if ordered by the Tribunal, would have meant the continuation of a notation on his registration details, (as a medical practitioner), accessible by interested persons. He submits the event of such a significant achievement in this matter (having the Reprimand notation removed), "should be reflected in the costs order made". He relies upon the judgment of Bathurst CJ and Beazley P in the decision of the NSW Court of Appeal of Ulman v Live Group Property Ltd [2018] NSWCA 338 (at [237]). "Costs of the appeal 237. Finally, there is the question of the costs of the appeal. The appellants have failed in having the convictions for contempt set aside. However, they have been successful in having the penalties imposed by the primary judge significantly reduced and in having the costs orders varied, although not in the way they sought. Those issues did not take up a great deal of time in argument. Nonetheless, we consider that the appellants' success on those issues should be reflected in the costs order that is made. Finally, although it was not necessary to determine the cross-appeal, it was relevant to the costs issue and had to be considered. The respondents should therefore have the costs of the cross-appeal. No separate costs were involved on the notice of contention, which should be considered to be part of the costs of the cross-appeal."
The appellant submitted that the initial hearing before the PSC involved a substantial issue which subsumed the bulk of the material filed in that hearing. He said he was successful in having that issue determined in his favour and that part of the PSC determination was not appealed by the HCCC.
Further the appellant submits the Tribunal would take into account the candid admissions made by Dr Riley in the hearing. He did not put in issue any matter of fact.
Given the circumstances of this case, the appellant submitted that the case for compensatory costs is not compelling. He further submitted that in all the circumstances of this case the court would exercise its' discretion and decline to make any order for costs.

Jurisdiction

Under s 165B (5A) of the Health Practitioner Regulation National Law (the National Law) the Tribunal, when constituted to make an ancillary decision as defined in the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), is to be constituted by the Tribunal List Manager or the judge or legal member presiding at the hearing.
Section 4 of the NCAT Act defines "ancillary decision". Sub-para (b) of the definition is "a decision concerning the awarding of costs in proceedings". Schedule 5D cl 13 of the National Law gives the Tribunal power to award costs. We have set out clause 13 earlier in these reasons.
The respondent referred the Tribunal to four reported decisions which it said would assist in the determination of the costs application. Those decisions are:

Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah)
Health Care Complaints Commission v Do [2014] NSWCA 307 (Do)
Sivathasan v Health Care Complaints Commission [2018] NSWCATOD 115 (Sivathasan)
Health Care Complaints Commission V Haasbroek [2018] (No 2) NSWCATOD 198 (Haasbroek)

In Haasbroek (No 2) the Tribunal ordered the practitioner to pay 50% of the costs of the Health Care Complaints Commission (HCCC). In that case the Tribunal had imposed a "Reprimand" on the practitioner upon the determination of a complaint brought by the Health Care Complaints Commission.
In its determination the Tribunal cited the decision of Health Care Complaints Commission v Philipiah and in particular the words of Meagher JA. That passage is as follows: Meagher JA explained at [42]-[44]: 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]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is 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 a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended 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.
The Tribunal in noted in Haasbroek, that the principles referred to in Philipiah are also referred to in the decision of Do.
The Tribunal in Haasbroek noted the concessions made by the HCCC that the practitioner had made very significant admissions and concessions for the hearing and that the time taken in the hearing was largely attributable to legal argument about the interpretation of s 144 (e). Nonetheless the HCCC pressed for costs on the basis that it had been successful in the majority of the complaints and particulars. It submitted for the "the usual order as to costs".
The Practitioner in Haasbroek emphasised the concessions and admissions he made and submitted the major issues between the parties had been "particular 4 in Complaint 4 which was withdrawn only at the time of the hearing". Further the Practitioner submitted that the HCCC was forced to concede that it could not establish particular 7. Importantly the Practitioner pointed to the case pursued by the HCCC, namely, that his registration should be cancelled. The Tribunal did not accept that should be the outcome.
In determining that the Practitioner should pay only half of the HCCC's costs the Tribunal said:

The HCCC was entirely unsuccessful in agitating their complaint under s 139B(1)(l) as the conduct was not conduct in the course of the practitioner's practice of medicine.
The time taken up in relation to the s 144 (e) point of law was taken in submission and did not take up hearing time.
The HCCC failed to establish that the Practitioner was not suitable to hold registration. The HCC sought an order for cancellation of registration.
The Practitioners early admissions.
The HCCC's concession that s 139(1)(l) was not available on the facts of the case.
The HCCC's late withdrawal of particulars.
The HCCC's lack of success in respect of particulars pursued.

The Tribunal found the above matters warranted the exercise of the discretion defined in the NSW Court of Appeal decisions in Philipiah and Do.
In Sivathasan the Tribunal ordered that the HCCC pay one half of the Practitioners costs.
The Tribunal determined that it was appropriate to exercise the discretion to make such an order based upon the following findings:

The applicant Practitioner had successfully appealed against a decision of the Professional Standards Committee which had imposed a "Reprimand" on him.
The evidence relied upon by the HCCC in the re-hearing under s 158(1) of the National Law did not support a conclusion that satisfied the criteria set out in 139B(1) of the National Law that the practitioners "knowledge, judgment possessed or care exercised, by the practitioner in the practice of medicine is significantly below the standard".
In light of the lack of evidence the HCCC did not oppose a finding that the subject matter of the complaint was not proved.
The Practitioner had not provided to the PSC hearing the expert evidence which was before the Tribunal. In so doing the Tribunal found the Practitioner had "unnecessarily inflicted additional costs on the respondent.

The Tribunal found that it was the last of the factors, set out above, which gave rise to the circumstance which "displaced the usual rule that an unsuccessful party pays the costs of the successful party." As a consequence the Tribunal concluded that the HCCC only be required to pay one half of the costs of the Practitioner incidental to the appeal.
I turn now to consider the following. What are the significant matters, which the Tribunal should weigh, to determine if the discretion to make a costs order should be exercised by the Tribunal in the manner sought by the respondent or the manner sought by the appellant? I consider the following for consideration in this case. 1. Each of the parties has been partially successful. 2. Neither party achieved the result which they individually sought in the hearing before us. 3. No costs order was made in relation to the hearing which was conducted before the PSC. 4. The Tribunal's finding that the respondent had not made out its' case that Dr Riley was in breach of clause 1(2)(a) of Schedule 2 of the Regulation (paragraph 109 of the judgment). 5. The hearing was required and there has been a finding of unsatisfactory professional conduct. 6. The Tribunal rejected the case of the Appellant that even if his conduct did amount to unsatisfactory professional conduct, no further order should be made. 7. The decision of the Tribunal overturned the decision of the PSC to impose a "Reprimand" upon the appellant. The order of the Tribunal imposing a "Caution" although clearly significant, is a large step backwards from the repercussions for the appellant of the continuation of the Reprimand imposed by the PSC. Thus the success achieved by the appellant in the hearing is very significant to him. 8. The appellant did not contest any of the facts relied upon by the respondent to establish its' case. Thus, the hearing time was eliminated in relation to any issue of fact. 9. The legal issues in this case were dealt with principally within the written submissions filed by each of the parties after the hearing concluded.
Having weighed all of the above matters I conclude it is appropriate to exercise the discretion available to the Tribunal and depart from the general rule that a Practitioner, who challenges the decision of the PSC and fails to overturn the decision of that body before the Tribunal, should be required to pay the costs of the HCCC.
In so deciding, I have concluded that items (a), (d), (g), (h) and (i) in paragraph 29 hereof, tip the scales against invoking the generality that the unsuccessful Practitioner should be required to pay all the costs of the HCCC.
I conclude that an order which requires the appellant in this case to pay two thirds of the costs of the respondent is a proper exercise of discretion in this matter. The Tribunal will so order. 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: 06 May 2019

Legal Profession Uniform Law Act 2014(NSW)

National Law") Legal Profession Uniform Law Application Act 2014(NSW)

At a glance

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Judgment (5 paragraphs)

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Legislation Cited (3)

Cases Cited (7)

Cited By (1)