Trinh v Medical Council of New South Wales

The Respondent's submissions in support of its costs application

1. The Respondent submitted (5) that its success in defending the Applicant's challenge to the jurisdiction of the Tribunal to hear her appeal under s 159 of the National Law provided a reason for awarding costs to the Respondent.
2. The Respondent referred (6) to the decision of the Tribunal in Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 at 153 to 155. The Tribunal there referred [154] to the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) where it was accepted that, as a general rule, costs of proceedings before the Tribunal should "follow the event".
3. It was accepted by the Tribunal, by reference to the Court of Appeal decisions to which it referred, that factors might "militate" against the recovery by, in that case the Health Care Complaints Commission, of all its costs in particular proceedings, included the possibility that the Commission was "only partly successful". It was further accepted that the Tribunal had an "unfettered discretion, although the compensatory principle militated in favour of a successful party obtaining an order for costs".
4. The Respondent also referred to the decision of the Tribunal in Vigours v Medical Council of NSW [2019] NSWCATOD 75 at [135-136] in which it was held that, in the absence of a basis for departure from the usual rule costs follow the event, and that, the applicant having been wholly unsuccessful, an order for costs in favour of the respondent was appropriate.
5. The Respondent sought that the Tribunal fix its costs in the sum of $2,896.95. The Respondent's costs and disbursements were quantified at $3,862, exclusive of GST. An invoice provided by Counsel for the Respondent recorded fees totalling $2,860, exclusive of GST. The total of $3,862.60 included the attendance of the Respondent's solicitor at the hearing of $1,002.60, exclusive of GST. The "discount" submitted by the Respondent to be appropriate [17] was 25%. Applying that discount would in fact, after allowing for Counsel's fees of $2,860, allow $36.95 for all other costs of the Respondent.
6. In support of its application for a lump sum costs order the Respondent relied (15) on the decision of the Tribunal in Health Care Complaints Commission v Livermore [2021] NSWCATOD 115 at [6] and[25]. Omitting citing the authorities to which the Tribunal referred, it was there accepted that: "(i) it may be appropriate to make a gross sum costs order in cases where there would be utility in "cutting the gordian knot" of protracted fights about costs; (ii) where the amount in issue is a modest sum and it would not be appropriate to require a further process of assessment to be made; (iii) where the costs assessment is likely to be a protracted and expensive exercise and the other party is unlikely to pay; (iv) a probable inability to pay a costs order is not a basis on which to refuse a costs order, but supports the making of a fixed costs order rather than an order requiring assessment of costs; (v) ordering fixed costs would obviate further legal costs for the applicant and is particularly apposite in circumstances where it is or may be unlikely that a respondent will be able to meet the liability of the order in any event, or the costs of any assessment that may ultimately need to be undertaken if costs were to be assessed; (vi) to require the successful party to be further aggravated by having to fund the additional costs of taxation, those costs also being unrecoverable is a relevant consideration; (vii) ordering fixed costs brings about a finality to the proceedings and is also a relevant consideration where costs are disputed; (viii) if the Tribunal is persuaded to make a fixed sum costs order then it may adopt a broad brush approach to the sum."

Applicant's Submissions

1. Under the heading "The "John Smith" Notification" the Applicant made a series of submissions ([4]-[9]) in support of her contention that the Respondent should not be awarded costs when "proceedings relied on false statements and/or a fraudulent notification". In the course of her submissions the Applicant made a series of complaints with respect to the Respondent's investigation prior to its initial decision to suspend her registration. The Applicant referred to a number of provisions of the Crimes Act 1900 (NSW) and also to the maxim of equity that "He who comes to court must come with clean hands".
2. The Applicant submitted (9) that the "Smith" notification was a "deceptive fabrication as is clearly demonstrated by the facts below, and thus the Applicant requests the Tribunal to reject any submission for costs - as the Respondent cannot benefit from a decision derived from or established on a fraud".
3. Under the heading "Judicial and legal arguments, and discretionary powers", the Applicant made a number of submissions with respect to the s 150 Decision of the Respondent. The Applicant referred (13) to the withdrawal of her s 159 and s 159B appeals against the decision to suspend her registration, and submitted that she "withdrew her appeal because it was unlawful, and that the Council would not rule according to law. Applicant does not consent to an unlawful hearing and is appealing the decision in the higher court". In view of the terms of the current application, the fate of the Applicant's appeals against the suspension of her registration have no present relevance.
4. The Applicant referred to s 60 of the CAT Act which, as she correctly submitted, limits the discretion to award costs to cases in which "special circumstances" have been demonstrated. As the terms of clause 13 of Schedule 5D of the National Law make clear, the provisions of s 60 of the CAT Act have no present application. The Tribunal agrees with the Applicant that the appearance of "may" in clause 13 of Schedule 5D makes clear that the power to award costs is discretionary and cannot be exercised arbitrarily against the Applicant (Ward v Williams [1955] HCA 4: (1955) 92 CLR 496). The Tribunal accepts that it must provide adequate reasons with respect to its decision in the current proceedings (NSW Land and Housing Corporation v Orr [2019] NSWCA 231).
5. The Applicant submitted by reference to a statement by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 as to the manner in which the Tribunal must exercise its discretion. The Tribunal accepts that the exercise of discretion as submitted by the Respondent must be "legal and regular, not arbitrary, vague and fanciful" and must be "done according to the rules of reason and justice". The Tribunal will determine the present application in the manner which that and other authorities make clear is its obligation.
6. The Applicant made a number of submissions with respect to the "expert report" (17-18). The Tribunal is unable to accept that anything there raised by the Respondent has a material bearing on the determination of the present application.
7. The Applicant submitted (19-22), at least inferentially, that some of the expenses incurred by the Respondent had not been reasonably incurred. The Respondent referred in that context to the costs of transcription services totalling $1,463.64. The current application seeks costs in total of $2,896.95 which represents 75% of Counsel's fees and the time spent by the Respondent's solicitor in relation to the Applicant's application in an appeal filed on 7 June 2022. If awarded, the Respondent will not, in these proceedings, be recovering any amount for transcription services at a hearing pursuant to either s 150 or s 150A of the National Law.
8. The Applicant purported to provide (23-33) "details of fraudulent complaint" which, inferentially, led to the suspension of her registration. It is self-evident that, either pursuant to s 159 or s 159B of the National Law, the avenue pursuant to which those complaints may have been agitated was in the appeal which the Applicant discontinued.
9. In summation, the Applicant submitted (34): "NCAT is not a court and it is an administrative body designed to resolve disputes for its users cheaply and effectively without onerous legal expenses. Applicant was self representing and it was the Council's decision to engage the services of a senior counsel against the Applicant at the hearing. The presence of the senior counsel was inappropriate and unnecessary and costs incurred by the Council were at its own volition. Furthermore, it was the Tribunal's discretion to invite the Council to be the contradictor and therefore claim costs - in the matter where the Applicant had every right to challenge jurisdiction according to s159B(4) of the National Law."
10. The Applicant further submitted (35): "In addition, even after the Applicant presented the facts of a falsified notification (fraud) to the Council (in review) the Council continued to prosecute this fraudulent and defamatory claim to harm the Applicant. The defamatory and false statements made (derived from this "friend" of patient, etc.) are clearly false. The making of a false notification is subject to its own criminal investigation, but to use a fraudulent claim in judicial proceedings is counter to any judicial or democratic process and could be construed as misfeasance of public office."
11. On the grounds advanced by her, the Applicant submitted that the Respondent's application for costs be rejected.

Consideration

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 Respondent. The Respondent 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] HCA 11; (1998) 193 CLR 72; 72 ALJR 578; 152 ALR 83), 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 (Arin v Nguyen [2001] NSWCA 5 at [37]). Nothing to which the Tribunal has been referred, or discovered for itself, could justify an order requiring the Respondent to pay the unsuccessful Applicant's costs. The issue for determination is whether, although wholly successful, the Respondent should be deprived of an order for 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 [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 directly to the litigation, or to the circumstances leading up to the litigation (Oshlack at [69]).
4. Nothing asserted by the Applicant provides a basis for finding misconduct or impropriety in some manner on the part of the Respondent which would disentitle it to its costs of the proceedings determined on 16 September 2022. The Respondent's conduct of its case provides no basis for criticism.
5. It is to be remembered that those proceedings only occurred because, as was her right, the Applicant elected to bring a challenge to the jurisdiction of the Medical Council to suspend her registration pursuant to the provisions of the National Law. The Respondent was merely, and successfully, resisting that application. The Respondent conducted its case with competence, expedition and appropriate brevity, whilst assisting the Tribunal as required by s 46 of the CAT Act. The Respondent provided, for the benefit of the Tribunal and the Applicant as an unrepresented litigant, a comprehensive and balanced outline of the facts of the case, the relevant legal principles and the basis of the Respondent's resistance to the Applicant's claim.
6. Courts have consistently refused to decline to make an award of costs where one is justified on the basis that the party against whom an award is made is or may be impecunious (see Northern Territory v Sangare HCA 25; [2019] 265 CLR 164; [2019] 93 ALJR 959; 372 ALR 117). There is 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 her if one were otherwise justified.
7. The Applicant has failed to establish, as the law requires her to, a basis for departure from the usual rule (Waterman v Gerling Insurance Co Pty Limited (No 2) [2005] NSWSC 1111).
8. 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] HCA 59; (1990) 170 CLR 534).
9. The Tribunal is satisfied that it is appropriate to make an order for costs in favour of the Respondent.

Whether costs should be quantified or subject to agreement or assessment

1. The Applicant clearly opposed the Tribunal quantifying the Respondent's costs if, contrary to her submissions, an order is made in favour of the Respondent.
2. As recorded earlier, clause 13(3A) of Schedule 5 D of the National Law provides that 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 recorded earlier, the Respondent relied upon the decision of the Tribunal in Health Care Complaints Commission v Livermore.
3. Section 98(4)(c) of the Civil Procedure Act 2005 (NSW), which is concerned with "Courts' powers as to costs" empowers the Court 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".
4. The decisions of Courts with respect to s 94(4)(c) of the Civil Procedure Act are thus instructive for present purposes. In Bechara (t/as Bechara and Company) v Bates [2016] NSWCA 294 the Court of Appeal stated that the considerations with respect to whether to make a gross lump sum costs order included: "(i) that 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 materials; (ii) whether 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; (iii) that a "broad brush" approach is appropriate, as to require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order; (iv) courts have typically applied a discount in assessing costs on a gross sum basis."
5. 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 [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] FCA 1250; [1995] 57 FCR 119).
6. 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). 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).
7. The requirement of more than a bare statement of total costs and disbursements has been adequately met by the Respondent (Tim Barr Pty Limited v Narui Gold Coast Pty Limited [2011] NSWSC 11). Having regard to the quantum of the claim, and the reality that, if the relief sought by the Respondent is granted, the Tribunal's order will be almost entirely referable to the Counsel's fees which have been amply particularised.
8. 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 to the reasonableness of the costs sought by the Respondent. The Applicant has had the opportunity to make submissions with respect to the reasonableness of the costs sought by the Respondent.
9. The Tribunal is satisfied that exercising the power to award a lump sum is fair to both parties. That is particularly so having regard to the modest amount involved, and the likely expense and inconvenience, to both parties, of assessment of the Respondent's costs. The Tribunal is not aware of any authority which provides that, if assessed, the Respondent would be precluded from claiming more than 75% of its costs on the basis that it was willing to accept such a discount if a gross sum costs order were made. It is possible, but unnecessary to attempt to decide, that the Applicant may in fact be financially better off if a gross sum costs order is made.
10. The Tribunal is satisfied that it can determine an appropriate sum from the available materials. The Tribunal is not satisfied that the conduct of either party has unnecessarily contributed to the costs of the proceedings. Nor is it satisfied that the costs incurred have been disproportionate to the result of the proceedings. Although necessarily in the nature of a "broad brush approach", in circumstances where, if successful, the Respondent would be awarded only a nominal sum in excess of the disbursement represented by Counsel's fees, the risks of a "broad brush" approach are more apparent than real.
11. The Tribunal does not accept that it was unreasonable of the Respondent to retain an experienced and competent senior member of the Outer Bar to resist the Applicant's jurisdictional challenge. The statutory interpretation issues raised in the proceedings justified the Respondent's decision to brief Counsel. Counsel's wrotten and oral submissions helpfully engaged with the issues in the proceedings. It is not insignificant that the Applicant relied, and continues to rely, significantly on the decision of the Court of Appeal in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60.
12. The Tribunal is satisfied that the gross sum costs order sought by the Respondent is proportionate to the importance and complexity of the subject matter of the Applicant's unsuccessful application in an appeal. Having regard to the sum involved, the expense, delay and aggravation arising out of costs assessment would be disproportionate to any risk of injustice if a gross sum costs order is made.
13. As recorded earlier, the Tribunal is confident that the gross sum costs sought by the Respondent are not likely to exceed what may be awarded to the Respondent if costs were assessed.

Disposition

1. For the foregoing reasons, the Tribunal orders that the Applicant pay the Respondent's costs of and incidental to her application for miscellaneous orders filed 7 June 2022 in the sum of $2,896.95.

Orders 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act the Tribunal dispenses with the requirement of a hearing of the proceedings. 2. Pursuant to clause 13(3A) of Schedule 5D to the Health Practitioner Regulation National Law 2009 (NSW) the Applicant is ordered to pay to the Respondent costs of the Applicant's application filed on 7 June 2022 fixed in the sum of $2,896.96.

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: 21 November 2022