These reasons deal with the costs of the appeal of the appellant Dr William Charles Simpson in respect of the decision of 18 September 2015 of the respondent, the Dental Council of NSW (the Council), to suspend his registration as a general dentist pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) No 86a (National Law).
For the reasons that follow, the Tribunal has decided to order Dr Simpson to pay the Council's costs, limited to the sum of $8,343.37.
[2]
Background
Dr Simpson was registered with the Australian Health Practitioner Regulation Agency (APHRA) as a general dentist. On 17 June 2015, proceedings were held pursuant to s 150 of the National Law. The matter arose from the notification by NSW police after Dr Simpson was charged with the possession of a prohibited substance. The Council was concerned that Dr Simpson may have been practising under the influence of drugs. The Council was satisfied that it was in the public interest to impose conditions on Dr Simpson's registration, effective 18 June 2015, as his behaviour posed a significant risk to the health and safety of the public. Those conditions included thrice weekly urinalysis.
On 15 September 2015, the Council received further information alleging that a drug test for a sample Dr Simpson provided on 27 August 2015 tested positive for Midazolam.
The Council held a further hearing on 18 September 2015. At the conclusion of that hearing, the Council decided to suspend Dr Simpson's registration as a dentist immediately. The Council told Dr Simpson that it was satisfied that that action was required to protect the health and safety of the public.
By an external appeal filed 4 December 2015, Dr Simpson appealed against the Council's decision of 18 September 2015. After a hearing held over two days, the Tribunal dismissed Dr Simpson's appeal, and confirmed his suspension as a general dentist: Simpson v Dental Council of NSW [2016] NSWCATOD 101.
In summary, the Tribunal determined that suspension of Dr Simpson's registration was appropriate in view of:
1. His conviction for supply of a prohibited drug namely cocaine, particularly given his admission that he had received the drug from a patient, and the fact that the drug was found in his possession while practising dentistry.
2. His positive urine drug test results, many of which remained unsatisfactorily explained, and his failure to attend for urine drug tests as required by the conditions imposed on him.
3. His failure to abide by his suspension, by prescribing medication to patients during a time that he was suspended, and in his failure to document those prescriptions in the patients' dental records,
see [104] of the principal decision.
In addition, the Tribunal considered that Dr Simpson lacked insight into his behaviour (at [107]), and that some of his evidence was not credible (at [109]).
At the conclusion of its reasons the Tribunal indicated, the jurisdiction being a costs jurisdiction, that costs normally follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Health Care Complaints Commission v Marino (No. 2) [2016] NSWCATOD 75 at [40]. The Tribunal indicated that, as the Council had been successful, the Tribunal proposed to make an order that Dr Simpson pay the Council's costs, as agreed or assessed. Dr Simpson was granted leave to file submissions if he sought some other order, including that no order as to costs should be made. Such submissions were to be made within 14 days after the publication of the reasons. The Council could reply within a further 14 days if necessary. The Tribunal directed that any further decision as to costs would be made on the papers.
No submissions were received from Dr Simpson.
The Council now seeks an order that Dr Simpson pay its costs, limited to its costs in relation to the services of its external counsel, in the sum of $8,343.37.
[3]
Council's application
On 13 September 2016 the Council filed with the Tribunal an affidavit of Mr Iain Martin, affirmed that day, together with written submissions. Mr Martin is the Assistant Director - Legal, of the Health Professional Council Authority, and relevantly the solicitor for the Council.
In summary, Mr Martin states, that following the publication of the Tribunal's principal decision on 3 August 2016, on 18 August 2016 he wrote to Dr Simpson. His letter noted that Dr Simpson had not made submissions as to costs in the time allowed for by the Tribunal, and Mr Martin indicated that the Council offered to accept $8,000 as full settlement of the Council's costs. (The Tribunal observes that that statement is not entirely accurate. The letter in fact offered to accept $8,000 in respect of the costs of the Council's external counsel, being some $8,347.37, "[t]hose costs total $8,343.47. The Council will accept $8,000 from you in full settlement of those costs".) (emphasis added)
The letter then indicated that that offer would remain open until close of business on 2 September 2016, and invited Dr Simpson to telephone Mr Martin to discuss the matter. Mr Martin indicated in the letter that, in the event that Dr Simpson did not agree to the offer, the Council would approach the Tribunal to have its costs assessed.
On 9 September 2016, Mr Martin again wrote to Dr Simpson. He noted that Dr Simpson had not responded to his earlier correspondence, and that he would now proceed to have the matter of the Council's costs dealt with by the Tribunal. Again, Mr Martin invited Dr Simpson to telephone him to discuss the matter.
On 12 September 2016, Mr Martin attempted to telephone Dr Simpson on his mobile, but the number appeared to be disconnected. Mr Martin then emailed Dr Simpson at his email address enclosing copies of both letters, advising him that the Council was still prepared to settle its costs $8,000, and again invited Dr Simpson to contact him if he wished to discuss the matter.
Dr Simpson did not respond to either the letter of 9 September 2016 or the email of 12 September 2016. Nor has he telephoned Mr Martin.
Mr Martin then states in his affidavit that in responding to Dr Simpson's appeal the Council had spent $8,343.37 on external legal assistance from Ms Belinda Baker of counsel. Copies of Ms Baker's invoices totalling this amount are attached to the affidavit.
Mr Martin also states that the Council also incurred internal legal costs for his services, but that the Council does not seek to recover those costs.
On 13 September 2016, the Council wrote to the Tribunal asking it to proceed to assess and make an order in its favour for costs. The Council attached a copy of Mr Martin's affidavit. A copy of the letter and Mr Martin's affidavit was also sent to Dr Simpson.
[4]
Submissions
In light of the facts described above, the Council makes the following submissions:
1. The general rule in this jurisdiction is that costs follow the event: Philipiah; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182; Qasim v Health Care Complaints Commission [2015] NSWCA 282; Singh v Medical Council of NSW (No 2) [2015] NSWCATOD 28.
2. There are no circumstances that would displace that principle in the present case: the appellant has been wholly unsuccessful in his claim for relief; the Council did not act oppressively in its conduct of the proceedings, nor did it take any procedural steps which cause Dr Simpson to incur unnecessary expense.
3. Dr Simpson's capacity to pay is not relevant to the Tribunal's decision to award costs: Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182.
4. Given the Tribunal's conclusions as to Dr Simpson's credibility and insight, as well as his capacity and preparedness to conform to acceptable practice standards, it is appropriate for costs to be awarded on an indemnity basis.
In addition, the Council submits that Dr Simpson's case was hopeless from the beginning, and, as such, his appeal was a waste of public resources on the part of the Council and of the Tribunal. The Council submits that the awarding of indemnity costs to the Council is appropriate to ensure that the Council is not unreasonably disadvantaged by being forced to respond to "that hopeless appeal" and also for the Tribunal to make a public statement that the bringing of such unreasonable and hopeless cases.
[5]
Consideration
The Council has characterised its application as an application for indemnity costs. However, the Tribunal understands that what the Council is actually seeking is an award of costs limited to the costs of its external counsel, whose fees and modest disbursements it seeks to be compensated for in full (see par [16] of the Council's submissions). The Council seeks no further order in relation to its other costs. In other words, the Council is not seeking indemnity costs in relation to the whole of the appeal for, it is seeking its limited costs in relation to the retainer of its external counsel, but those seeks those costs to be determined and awarded in full.
For the following reasons, the Tribunal considers that the order sought by the Council should be made.
As the Council correctly notes, Dr Simpson was unsuccessful in his appeal. Generally, costs follow the event. Dr Simpson has advanced no reasons or made no submissions why costs should awarded to the council. Accordingly, Dr Simpson should pay the Council's costs of his appeal.
However, the Council does not seek an award of costs in relation to all its costs of the appeal. The only costs the Council seeks are its costs in relation to the services provided by Ms Baker. Were the Council to seek an order that it be paid it costs of the proceedings, the amount would be bound to be higher than the amount it seeks simply for the services of external counsel.
The invoices that are provided indicate that Ms Baker charged an appropriate hourly rate for the provision of her services. It is well-known that counsel retained by government agencies, both State and Commonwealth, are retained at rates lower than what they would otherwise be paid in respect of private clients. All this to say, the hourly rate charged of $225 appears to be nothing other than reasonable, and no doubt is the rate that the State pays its counsel of similar experience.
Section 60(4) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides that if costs are to be awarded by the Tribunal, the Tribunal may determine by whom and to what extent costs are to be paid. In Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48, the Tribunal accepted that the "guiding principle" for Tribunal was to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 36(1) of the NCAT Act), and that the practice and procedure of the Tribunal was to be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: s 36(4). Given the amount in issue (costs of $5,031.40 sought; reduced to $3,500), the Appeal Panel considered it would be disproportionate and contrary to the guiding principle to require either party have to have its costs assessed, as this would add to further delay and further expense to what has already occurred. The Appeal Panel determined the amount of costs itself.
Kurmond was a decision of the Appeal Panel, hearing an internal appeal (see s 32 of the NCAT Act) from a decision of the Consumer and Commercial Division of the Tribunal. A similar statement, expressing the same principle, was made by the Occupational Division of the Tribunal in Bahramy v Medical Council of NSW (No 2) [2015] NSWCATOD 125 which noted at [38] that:
"While we are cognisant that we could have made an order requiring such a bill to be prepared and submitted, we have been guided by the objects of the Civil and Administrative Tribunal Act. We have had regard particularly to s 3(d) namely that the Tribunal resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible and s 38 (4) that provides the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."
Applying those principles, the Tribunal itself determined the costs to be paid, stating at [35]:
In the circumstances of this case, we find it appropriate to take into account the general quantum sought by the Council for professional costs, and we have regard to the disbursements incurred that are substantiated by copies of invoices. But as we cannot effectively tax the Crown solicitor's professional costs we propose to deal with the assessment of costs on a global basis.
These principles are apposite to the Council's application, and the Tribunal considers that it should order Dr Simpson pay the Council's costs, limited to the sum of $8,343.37 in respect of the services of the Dental Council's external counsel.
[6]
Orders
The Tribunal orders that:
1. Dr Simpson shall pay the costs and disbursements of the Dental Council of NSW limited to the sum of $8,343.37 in respect of the services of the Dental Council's external counsel.
2. The costs payable under Order 1 shall be paid within 28 days of this order unless otherwise agreed by the Dental Council of NSW.
3. There is no order in respect of any other of the costs of the Dental Council of NSW.
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 October 2016