Tan v Medical Council of New South Wales

Dispensing with a hearing

1. The council filed no submissions in opposition to the making of an order dispensing with a hearing of its costs application pursuant to s 50(2) of the CAT Act. The parties have been afforded the opportunity to make submissions in opposition to an order dispensing with a hearing. Neither has. The Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the submissions of the Council and other written material before it, and will order that a hearing be dispensed with. Dispensing with a hearing does not imply that the Tribunal will not give proper, genuine and realistic consideration to the merits of the case: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9]. The Council will fail unless it proves its case.

The Council's case for costs

1. The Council sought an order that the Applicant pay its costs fixed in the sum of $21,700 or, in the alternative, an order that the Applicant pay the Council's costs as agreed or assessed. The Council applied for costs pursuant to clause 13 of Sch 5D of the National Law, which 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. (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 cost assessor under the legal cost 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 Administration Tribunal Act 2013.
2. The Council made its application on two "primary bases". The first was that the Applicant's application for reinstatement was wholly unsuccessful. That was submitted to provide a "very strong reason for awarding costs to the Council".
3. The Council referred to the decision of the Tribunal in Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116, in which the Tribunal referred to, and followed, the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 ("Philipiah").
4. There can be no dispute that the Council was wholly successful in these proceedings, or that the Applicant was correspondingly wholly unsuccessful. The "general rule" that the costs of the proceedings should "follow the event" was thereby enlivened.
5. The Council submitted that no conduct by it would disentitle it to an order for costs and that the "mere impecuniosity" of the Applicant would not disentitle it to an award of costs.
6. The second basis upon which the Council relied in support of its costs application was that "in its role as contradictor (representing the public and broader profession)", the Council had assisted the Tribunal by ensuring that the Applicant's evidence in support of his reinstatement application was tested. Such testing was submitted to extend to preparing written submissions, filing documentary materials, cross-examining the Applicant and other witnesses, making oral submissions, and obtaining reports from Dr Samuels to assist the Tribunal in its assessment of relevant factors. Reliance was placed upon the Council having made Dr Samuels available for cross-examination, and questions asked by the Tribunal, although ultimately Dr Samuels was not required for cross-examination.
7. Those considerations in themselves were submitted to justify making a costs order in favour of the Council, a number of decisions of the Tribunal being relied upon in support of that submission: Balafas v Medical Council of NSW [2013] NSWMT 4; Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49.
8. In support of its case, the Council relied upon the decision of the Tribunal in Vo v Medical Council of NSW [2018] NSWCATOD 18, in which the Tribunal recorded (at [142]) that: "The Council properly appeared as respondent to the application. Its appearance came as a consequence of the disciplinary offences of the applicant that led to his deregistration, and the need for him to demonstrate persuasively that he should now be reinstated. It is plainly in the public interest that there be a participant in the proceedings of the kind that the Council is, a peak regulatory body who can bring a detached, knowledgeable perspective to an application of this kind."
9. The decision of the Tribunal in Ake v Health Care Complaints Commission [2019] NSWCATOD 165 was also relied upon by the Council. The Tribunal there accepted (at [51]) that: "… there is a public interest in the Tribunal being assisted by the relevant practitioner Council or the Commission. Without a respondent in this class of matters, there is a risk that the Tribunal might only have available the self-serving evidence adduced by the applicant practitioner."
10. The Tribunal in that case described (again at [51]) the Health Care Complaints Commission as a "public interest respondent" in review proceedings, which "assists the Tribunal in discharging its obligations to ensure that all relevant material is disclosed so as to enable it to determine all relevant facts in issue". Those observations apply to the Council.
11. The Council relied upon decisions in which, even though an application for reinstatement has been successful, it was awarded costs: Vo v Medical Council of NSW [2018] NSWCATOD 18; Reimers v Medical Council of New South Wales [2018] NSWCATOD 180.
12. The Council's primary position was that the Tribunal fix its costs. If the Tribunal were not disposed to do so, the Council sought that it be awarded costs as agreed or assessed on a party and party basis.
13. The Council relied on the decisions of the Tribunal in 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 and Health Care Complaints Commission v Livermore [2021] NSWCATOD 115 in support of its claim for a fixed sum costs order.
14. Although the Council accepted, properly, that awarding costs in a fixed amount was discretionary, a number of matters were submitted to emerge from the authorities as being of particular relevance. They were submitted to be: "(a) the utility in "cutting the Gordian knot" of protracted fights about costs; (b) obviating further legal costs for the Council; (c) avoiding the need for Council to … expend additional costs on the assessment process (where those costs are unrecoverable); (d) a fixed costs order would bring about finality to the proceedings."
15. The Council particularised its costs as totalling $28,936.33 and submitted that it would be appropriate to award 75% of that amount, to "reflect the usual reduction that could be expected if its costs were to be assessed".
16. The Respondent has filed no submissions. That does not mean that the Council is entitled to succeed. There are three issues which require determination: 1. whether an order for costs should be made in favour of the Council; 2. whether the Tribunal should make a fixed costs order; 3. if the Tribunal should make a fixed costs order, the quantum of such order.

Principles governing the application

1. The principles governing the application are not in doubt, have been identified in the Council's submissions and require only brief further reiteration for present purposes.
2. Clause 13 of Sch 5D of the National Law invests the jurisdiction to award costs of proceedings pursuant to the National Law. Clause 13(1) provides that the Tribunal may order a health practitioner at an "inquiry or appeal before the Tribunal" to pay the costs to another person as decided by the Tribunal. Clause 1(2) of Schedule 5D provides that a reference in Schedule 5D, "however expressed", to proceedings before the Tribunal "is a reference to proceedings before the Tribunal under this law".
3. Section 165B of the National Law is concerned with the "constitution of Tribunal for complaints, applications and appeals". Section 165B(5A) provides that, when constituted to make an "ancillary decision or an interlocutory decision" within the meaning of the CAT Act the Tribunal is to be constituted by the Tribunal List Manager or, relevantly for present purposes, a member who, pursuant to s 165B(2)(a) is a "senior judicial officer", which includes a judge of the District Court (s 165(b)). Section 4(1)(b) of the CAT Act provides that a "decision concerning the awarding of costs" is an ancillary decision.
4. The Tribunal is satisfied that it has jurisdiction to determine the Council's costs application: Health Care Complaints Commission v Govan (No 2) [2022] NSWCATOD 108.

Whether the Council is entitled to an order for costs

1. As the decision in Philipiah makes clear, in proceedings of the present kind, the general rule is that costs should follow the event. The outcome of the "event" in this case is not in doubt, and did not involve mixed success and failure on the part of the Council. The Council was wholly successful in the proceedings which were determined on 16 September 2022. The Applicant was wholly unsuccessful in those proceedings. In those circumstances, there is a presumption that costs follow the event.
2. There is no automatic rule that costs always follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 ("Oshlack") at [40]-[41]. A successful party may be denied some part or all of its costs. An unsuccessful party may be awarded costs, though exceptional circumstances must exist before a successful party is deprived of costs and required to pay an unsuccessful opponent's costs: Arian v Nguyen [2001] NSWCA 5. Nothing which the Tribunal has found could justify an order requiring the Council to pay the unsuccessful Applicant's costs.
3. Misconduct or some form of impropriety on the part of the successful party is a basis for departure from the usual rule: Anglo-Cyprian Trade Agencies v Paphos Wine Industries Ltd (1951) 1 All ER 873; Oshlack at [69]; Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256. The conduct may relate to the litigation, or the circumstances leading up to the litigation: Oshlack at [69].
4. Nothing found by the Tribunal in the proceedings, or discovered, provides a basis for finding misconduct or impropriety in some manner on the part of the Council which would disentitle it to its costs of the proceedings.
5. It is to be remembered that the proceedings only occurred because, as was his right, the Applicant made an application for reregistration as a medical practitioner. The submissions on behalf of the Council with respect to the public interest in it having been a "contradictor" in the procedings, and diligently discharged the duties associated with that role, are of particular relevance in the present circumstances. As the authorities recognise, there is a real risk in reinstatement proceedings resulting in persons who should not be reregistered as medical practitioners successfully applying to do so if there is not a contradictor, such as the Council. The alternative, which is also undesirable in the interests of justice is that, in the absence of a contradictor, the Tribunal risks unintentionally "entering the arena".
6. Courts have consistently refused to decline to make an order for costs where one is justified on the basis that the party against whom an award is made is or may be impecunious: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25.
7. There was no evidence before the Tribunal that the Applicant is, or may be impecunious. Even if the Applicant was, or may be impecunious, in the circumstances of this application the Tribunal would not decline to make an order for costs against him on that basis if one were otherwise justified.
8. If a basis for departure from the usual rule is asserted, the party seeking such departure bears the onus of demonstrating the basis on which it should be: Waterman v Gerling (No 2) [2005] NSWSC 1111). No basis for departing from the usual rule emerges from the evidence before the Tribunal.
9. It is uncontroversial that the rationale of awarding costs is to partially reimburse the successful party for costs incurred, and that the intention is not to punish the unsuccessful party: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59.
10. The Tribunal is satisfied that the Council is entitled to an order for costs, on either of the bases upon which it relies. As the Tribunal's reasons for dismissing the Applicant's reregistration application make clear, the Tribunal was materially assisted by the Council's participation as "contradictor", and by the evidence which the Council caused to be adduced. It is to be remembered that, at the time it was commissioned by the Council, Dr Samuels' report may have materially assisted the Applicant's case. Absent the involvement of the Council and the evidence which it adduced, there was a risk that either of the undesirable outcomes to which the Tribunal has earlier referred could have eventuated. That risk was real.

Whether costs should be quantified or subject to agreement or assessment

1. Clause 13(3A) of Sch 5D of the National Law empowers the Tribunal to "fix the amount of costs itself" in lieu of ordering that costs be assessed. Section 98(4)(c) of the Civil Procedure Act 2005 (NSW), which is concerned with "courts' powers as to costs", empowers New South Wales courts to make an order "to the effect that the party to whom costs are to be paid is to be entitled to … a specified gross sum instead of assessed costs". In view of the substantial similarity between the terms of the two provisions, the decisions of courts with respect to s 98(4)(c) of the Civil Procedure Act are instructive for present purposes.
2. In Bechara trading as Bechara & Company v Bates [2016] NSWCA 294, the Court of Appeal stated (at [12]-[15]) that the considerations with respect to whether to make gross lump sum costs orders included: "12. The power to award a lump sum should only be exercised when the Court considers that it can do so fairly between the parties, and where an appropriate sum can be determined from the available material …. 13. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings …. 14. A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order …. 15. The courts have typically applied a discount in assessing costs on a gross sum basis …." (citations omitted)
3. Also relevant is whether the costs sought are proportionate to the importance and complexity of the subject matter in dispute: Hamod v New South Wales and Anor [2011] NSWCA 375. The purpose of a gross sum costs order is to avoid the expense, delay and aggravation arising out of costs assessment: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350.
4. Although a "broader brush" approach can be adopted, as the discretion to make a gross sum costs order must be exercised judicially, a court must arrive at a figure that it is confident does justice between the parties, even though the full assessment process has not been undertaken: Penson v Titan National Pty Limited (No 3) [2015] NSWCA 121.
5. Similarly, a lump sum costs order should only be made when the court has sufficient confidence to arrive at an appropriate sum on the materials available: Colquhoun v District Court (NSW) (No 2) [2015] NSWCA 54. The requirement of more than a bare statement of total costs and disbursements has been more than adequately met by the Council in this case: Tim Barr Pty Limited v Narui Gold Coast Pty Limited [2011] NSWSC 11.
6. In the present circumstances, and particularly as the Tribunal is not a court, and, subject to the rules of natural justice, may pursuant to s 38(2) of the CAT Act inform itself in "whatever way it chooses", there is no need for an expert opinion as the reasonableness of the costs sought by the Council. The Applicant has had the opportunity to make submissions with respect to the reasonableness of the costs sought by the Council.
7. The Tribunal is satisfied that, in all the circumstances, it is appropriate to make an order for the Council's costs in a fixed amount. The Tribunal is satisfied that it can do so fairly, that it can determine an appropriate amount from the available materials, that the costs incurred by the Council have not been disproportionate to the result of the proceedings. Largely for the reasons asserted by the Council, it was appropriate and necessary, to effectively discharge its role as contradictor in the proceedings, to provide expert opinion evidence of the kind which it did.

Whether the amount sought by the Council is reasonable

1. The Council particularised its costs in submissions as follows: "(a) Counsel - $13,713.33. (b) Law in Order (printing Counsel's folders of evidence, creation of USB keys containing evidence) - $949.60. (c) Dr Samuels (assessments and expert reports) - $11,675 (d) Conduct money for summonses to produce documents - $100.00 (e) Solicitor attending at hearing calculated at CSO rates ($416.40/hour) - $2,948.40. Total - $28,936.33."
2. Attached to the Council's submissions were itemised invoices from Counsel, Law in Order, Dr Samuels and evidence of the payment of conduct money. In the circumstances, the approach endorsed by the authorities does not involve application of a particularly "broad brush" approach.
3. It was reasonable for the Council to retain an experienced and competent senior member of the outer Bar to resist the Applicant's application for reregistration. Having regard to the services provided by Counsel, as detailed in his taxation invoices, the Tribunal is satisfied that Counsel's fees were reasonable, and were reasonably incurred. Similar observations apply to each of the other disbursements incurred by the Council. The claim for the solicitor attending at the hearing was reasonable, both with respect to the solicitor attending, and the cost claimed for doing so.
4. The Council invites the Tribunal to discount the fees payable to it by 25%, in recognition of the "usual reduction" when an applicant for costs is spared the effort and expense of assessment of costs claimed. Whether, and if so by what percentage, the Council's fees would have been likely to be discounted if assessed is less than clear. As the great bulk of the Council's costs are represented by disbursements (approximately 85%), the discount on assessment would appear likely to be limited. The Tribunal does not need to speculate about that.
5. The discounted sum claimed by the Council is, in the Tribunal's view, appropriate. Although again not a matter about which the Tribunal need speculate, it may well be that, if the Tribunal declined to make a fixed sum costs order, an ordered that costs be assessed, the Council may be held entitled to more than $21,700 and to the costs of any assessment which the Applicant required of the Council's costs.

Conclusion

1. The Council has made out its case for an award of costs and for an order that such costs be fixed in the sum of $21,700.

Orders 1. The Applicant is to pay the Respondent's costs fixed in the sum of $21,700.00.

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: 05 June 2023