Vivaldi v Dental Board of Australia

Procedural history of the appeal

1. On 3 November 2017, the Tribunal made orders listing the appeal for hearing on 4 and 5 April 2018 and set a timetable for the filing and serving of material. On Dr Vivaldi's application and with the consent of the Board, the Tribunal extended the date for compliance with the timetable on three occasions.
2. On 29 March 2018 at the request of Dr Vivaldi, the Tribunal vacated the April hearing dates, made further directions for the filing and serving of material and listed the matter for hearing on 11 and 12 July 2018.
3. In a letter to the Board's solicitors dated 2 May 2018, solicitors for Dr Vivaldi asserted that the "current approach of the Board amounted to a breach of s 58(c) of the National Law and also amounts to indirect discrimination that infringes the Racial Discrimination Act 1975 (Cth) and the Equal Opportunity Act 2010 (Vic)".
4. Dr Vivaldi's solicitors asserted that s 58(c) of the National Law required the Board to offer Dr Vivaldi the opportunity to complete an examination or assessment set by the Board. In addition, they argued that the Board's policy in relation to the specialist regulation of overseas-trained dental practitioners was "protectionist" and constitutes unlawful race discrimination.
5. Dr Vivaldi's solicitors proposed an offer of settlement: That the appeal be withdrawn on condition that the Board develop an examination or assessment for specialist registration in the field pursuant to s 58(c) of the National Law and give Dr Vivaldi the opportunity to undertake that examination or assessment no later than 1 February 2019. Each party bear their own costs of the appeal.
6. In a letter in reply dated 30 May 2018, the Board's solicitors rejected the assertion that the Board's approach to Dr Vivaldi's applications: 1. Is in breach of s 58(c) of the National Law; 2. Is, to the extent that it compares an applicant's qualifications to a currently approved qualification, flawed; and 3. Amounts to indirect discrimination that infringes the Racial Discrimination Act 1975 (Cth) and the Equal Opportunity Act 2010 (Vic).
7. By letter dated 22 June 2018, solicitors for Dr Vivaldi advised the Board that they had been instructed to withdraw the appeal and proposed that each party bear their own costs. In a letter dated 28 June 2018, the Board advised that it would not consent to that proposal but was willing to consent to an order that Dr Vivaldi pay the Board $37,200 in costs, asserting that this represented 60% of its costs incurred to date in the appeal.
8. The parties continued to exchange correspondence, each asserting the reasonableness of their respective positions. Agreement was not reached.

Statutory framework and principles governing the award of costs

1. In NSW, the power to award costs in respect of an appeal brought under the National Law is conferred by s 175B of the National Law, which states: The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
2. Clause 13 of Schedule 5D to the National Law is in similar terms: 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. … (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.
3. In exercising the power conferred by the National Law to award costs the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. The presumption that the successful party is entitled to receive their costs will generally only be displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]; Arian v Nguyen [2001] NSWCA 5 at [36]. It is for 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. The underlying principle in relation to costs is that of justice and fairness. A court or tribunal will make an assessment of, and take into account, each party's responsibility for the costs incurred. In Commonwealth v Gretton [2008] NSWCA 117, Hodgson JA said at [121]: In my opinion, underlying both 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. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant's responsibility because the plaintiff was caused to incur costs by the defendant's failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: cf Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ. Departures from the general rule that costs follow the event are broadly based on a similar approach.

Submissions on costs

1. Dr Vivaldi argues that each party should bear their own costs of the appeal. The Board disagrees and argues that, having "effectively surrendered", Dr Vivaldi should pay its costs.
2. While not disputing that s 175B of the National Law establishes that costs will generally follow the event, Dr Vivaldi contends that this provision was designed with the "disciplinary jurisdiction in mind" and a blind application of that approach to an appeal against a registration decision is misguided. Further, he contends that he were to be ordered that he pay the Board's costs this would not promote accessibility to the Tribunal and would be inconsistent with the objects of the Civil and Administrative Tribunal Act 2013 (NSW), specifically s 3(c).
3. He argues that a combination of language difficulties, distance, and the limited number of appropriately qualified Australian experts able to evaluate the comparability of the Brazilian Qualification and the Board-approved qualification, made the task of obtaining evidence to support his contention that the two qualifications, were "substantially equivalent, or based on similar competencies", both difficult and expensive. He stated that he encountered considerable difficulty obtaining documentation from Brazil to address the finding made by the Board that the Specialisation Course was not subject to regular review by an independent external agency and to address its concerns about the system of external accreditation that led to the Course's accreditation. To address the dearth of publicly available information about the Specialisation Course, Dr Vivaldi said he was forced to engage a Brazilian lawyer, who specialised in the educational sector.
4. Dr Vivaldi stated that he did not intend to lodge a further appeal against the decision under appeal, conceding that there was little prospect of success, given the position taken by the Board that to satisfy the "substantially equivalent" requirement imposed by s 58(c), he must establish that the course he undertook in Brazil in 2003 was substantially equivalent to the Board approved course at the time he applied for specialist registration in 2016. He argued that given the advances in the field of Orthodontics since 2003, this set an impossible hurdle for an experienced overseas-trained health practitioner.
5. Dr Vivaldi stated that he intended to put his efforts into persuading the Board to offer him the opportunity to undertake an examination or other assessment it required to demonstrate that he was suitably qualified for specialist registration.
6. Dr Vivaldi said it was not feasible for him to undertake the Australian qualification, which required that he undertake a three-year course, because he has a young family to support.
7. He argues that in circumstances where the Board has repeatedly refused his offer to sit an examination or undertake an assessment, and having regard to the public interest in overseas trained health practitioners gaining entry to the Australian health profession, the Board holds as much "responsibility for the incurring of costs" as he does, citing in support the following extract from the decision of Ibrahim v Medical Board of Australia [2014] NSWCATOD 108 at [61]: [T]here is a public interest in allowing appropriately qualified migrants to Australia entry into the medical profession, especially in the case of areas of need. It may be that the costs discretion should be exercised more sparingly in relation to unsuccessful appeals that have these features. His case was not without merit, and turned, ultimately, in our view on the recency of practice issue.
8. The Board contends that it at all times acted properly in dealing with Dr Vivaldi's application for specialist registration and throughout the appeal was a model litigant. It asserts that it has a reasoned and cogent basis for its position which is "wholly and completely supported" by the opinion of its expert, Dr John Razza. In addition, the Board asserts that it incurred significant additional costs as a result of the defects in the evidence filed on behalf of Dr Vivaldi.
9. The Board argues that the reason the appeal did not proceed to determination on the merits is relevant to the exercise of the Tribunal's discretion to award costs. It argues that Dr Vivaldi "effectively surrendered" and as such he should be required to pay its costs, citing in support the following passage from the judgement of Burchett J in ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 at [6]: In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs.
10. The Board rejected the suggestion made by Dr Vivaldi that it had acted unreasonably in not offering him the opportunity to sit an examination or assessment, asserting that the cost of designing an examination or assessment is prohibitive.

Conclusion

1. The issue raised in this matter is how the general "rule" is be applied in circumstances where the merits of the appeal have not been determined because the appeal has been withdrawn.
2. Dr Vivaldi finds himself in a Catch-22 position. As the documentation filed in the Appeal reveals, he has significant experience in the specialty of Orthodontics. He has worked with a number of respected Brazilian and Australian Orthodontists who attest to his competence in the field of Orthodontics and his commitment to the profession of dentistry. However, he now concedes that, because of the passage of time together with advances in the field of Orthodontics, he cannot establish that the qualification he obtained in Brazil 2003 is "substantially equivalent" to the Board approved Australian qualification (in 2016). As he points out, the alternative pathway to specialist registration is not available to him because the Board has failed to offer him the opportunity to undertake an assessment or examination.
3. With respect to the submission that the Board's refusal to accept Dr Vivaldi's application, constitutes unlawful discrimination on the ground of race, I not only lack the power to determine that question but apart from the assertions made by the parties, I have not been provided with material which would enable that me to do so. That question is one for another forum on another day. Nevertheless, it appears unfortunate that, because no examination is available to Dr Vivaldi, he is unable formally to demonstrate his level of orthodontic competence against current Australian standards.
4. Dr Vivaldi's argument that costs can have a "chilling effect" and operate as a barrier to access to justice, is a powerful one. It is presumably for this reason that Parliament enacted s 60 of the Civil and Administrative Tribunal Act 2013 (NSW), which provides that each party must bear their own costs, unless the Tribunal is satisfied that there are special circumstances warranting an award of costs. While, arguably, there are sound policy grounds for extending that provision to appeals brought under the National Law, Parliament has not done so. It may be, as Dr Vivaldi suggests, that the provisions relating to costs in the National Law were designed primarily with the "disciplinary jurisdiction in mind". However, that intention is not reflected in the National Law which expressly states that the applicable cost provision for appeals brought in relation to registration decisions, is s 175B of the National Law.
5. Both Dr Vivaldi and the Board found the task of obtaining information to determine the question of whether the Brazilian Qualification was substantially equivalent to the Australian approved qualification (in 2016) to be difficult and expensive. Each retained experts to assist in that task.
6. Dr Vivaldi was required to lodge the appeal within 28 days of being notified of the decision of the Board to refuse his application for specialist registration. It was not practicable to obtain additional information from Brazil and the necessary expert evidence to address the Board's concerns within that timeframe. While Dr Vivaldi acknowledged, albeit late in the day, that the available information did not support his initial contention that the two qualifications were substantially equivalent, it could not be said that the appeal was hopeless from the outset. Of significance, there is nothing to suggest that the appeal constituted an abuse of process or that it was commenced for some ulterior motive. Nonetheless, as the Board asserts, Dr Vivaldi effectively surrendered before the hearing.
7. The underlying principle in relation to the exercise of the power to award costs is that of justice and fairness. Costs are compensatory not punitive. They are one of the risks of litigation. I accept that Dr Vivaldi encountered difficulties (as did the Board) in obtaining evidence to support his position, but I cannot see that this justifies a departure from the "usual rule". I am bolstered in this opinion as the offer put to Dr Vivaldi by the Board to pay a proportion of its costs was fair and reasonable in the circumstances, especially given as the Board points out that it incurred additional costs because of defects in the evidence filed by Dr Vivaldi and his repeated failure to comply with the timetable set by the Tribunal.
8. I order Dr Vivaldi to pay the Board's costs as agreed or assessed.

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

Amendments 20 November 2018 - Paragraph 3, Sentence 5 rewritten. 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: 20 November 2018