Health Care Complaints Commission v Liprini [2020] NSWCATOD 134

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Liprini [2020] NSWCATOD 134 Hearing dates: On the papers Date of orders: 25 November 2020 Decision date: 25 November 2020 Jurisdiction: Occupational Division Before: Le Poer Trench ADCJ, Principal Member Decision: (1) Dr Liprini is to pay the costs of the HCCC of the proceedings as agreed or as assessed. Catchwords: PROFESSIONS AND TRADES – health care professionals – medical practitioners – disciplinary proceedings – costs application Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Health Care Complaints Commission v Liprini [2020] NSWCATOD 94 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Allan Stephen Liprini (Respondent) Representation: Counsel: D New (Applicant)

Solicitors: Health Care Complaints Commission (Applicant) Self-represented (Respondent) File Number(s): 2019/00171207 Publication restriction: Nil

REASONS FOR DECISION

BACKGROUND 1. On 25 August 2020 the Tribunal published its decision in a contested proceeding commenced by the Health Care Complaints Commission (HCCC). The following orders were made: 1. The registration of Allan Stephen Liprini, as a medical practitioner, is cancelled. 2. Allan Stephen Liprini is not able to apply for a review of this cancellation until after 15 February 2021. 3. If either party seeks a costs order, submissions in support of same is to be filed and served within 21 days from the date hereof. 4. Any response to a submission seeking a costs order is to be filed and served within a further 14 days of receipt of such a submission. 1. On 14 September 2020 the HCCC provided their submission and a form of the costs order it seeks. On 28 September 2020 the respondent Dr Liprini wrote (by email) to the Registrar advising "Due to ill health I am late with my costs submissions which will be delivered within a few days". The email further attached a medical certificate signed 24 September 2020. The medical certificate stated as follows: "Allan is suffered from three ribs fracture on 24/07/2020 and confirmed by X ray on the 26/07/2020 he is still recovering from this injury. This certificate given upon his request." The medical certificate is signed by Dr Mohammed Al-Mahdi of Vincentia. 1. The submission from the HCCC attached an assessment of its costs. The assessment was set out in two parts. The first part detailed the disbursements paid by the HCCC. That totalled $7,828.34. The second part was for the Commissions legal costs. The sum of $13,388.76 is claimed. 2. The HCCC submitted as follows:- (i) The Commission seeks a costs order. The Tribunal has power to order costs as a fixed sum pursuant to Schedule 5D, cl. 13 of the National Law. (ii) The "usual rule" that costs following the event applies to this jurisdiction: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. (iii) The prima facie position is that costs follow the event. It has been said on more than one occasion that the discretion to apportion costs is one to be exercised only in the most exceptional of circumstances: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; Stena Rederi Aktiebolag v Austal Ships Sales Pty Ltd [2007] FCA 1141 at [12]. (iv) In Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA [1] 306 at [24] [2] "In the case where there are multiple issues litigated, the court may, in the exercise of its discretion, order that a successful party have part only of its costs. However, it does not necessarily follow that that is the appropriate order. The commencing position is that costs follow the event so that a successful party is entitled to costs. It may be appropriate to order that a successful party be deprived of costs or a portion of the costs if the matters upon which that party is unsuccessful took up a significant part of the trial, either by way of evidence or argument. This proposition is well established and does not require any discussion of the caselaw.." (v) The purpose of the order is compensatory not punitive. A schedule is annexed at "A" to these submissions so the Tribunal can see that the sum sought is compensatory. (vi) A fixed sum is sought noting that "as agreed or assessed" may have its complexities in the context of the respondent's diagnoses. (vii) There is no evidence of any disentitling conduct attributable to the Commission or exceptional circumstances to suggest the ordinary rule should not apply: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11. (viii) The fact that the respondent lacks the financial capacity to meet a costs order is not relevant to whether the power to order costs should be exercised: Philipiah at [42]. 1. The respondent Dr Liprini provided his submission on costs on 12 October 2020. The submission is dated 2 October 2020 and is four pages in length. Dr Liprini attached some documents to his submission. 2. Dr Liprini opposes an order for costs being made against him. He submitted the decision made by NCAT (25 August 2020) was obtained by fraud. He set out the reason for that assertion and referred to the attached documents to support his submission. He stated he would not identify "the fraudster" in the submission. 3. In his submission Dr Liprini stated the fraud commenced with the s 150 meeting on 31 August 2015. At that meeting Dr Liprini said the Medical Council was informed (not by him) he was suffering from a delusional disorder. The alleged diagnosis of that condition was sourced in two affidavits provided to the Medical Council. Dr Liprini attached a copy of the Medical Council s 150 decision and underlined portions of the decision which related to his submission. 4. Dr Liprini submitted that the second "root of the fraudulent applicant's submission which led to the 25th August decision relates to drug and alcohol matters." Dr Liprini related the history of his schedule 8 prescribing rights. He had not been prescribing schedule 8 drugs from 1991 until 1999. In 1999 those rights were restored to his registration however he did not take advantage of same and continued to not prescribe sch. 8 drugs. 5. In 2015, the manager of the practice he was working in part time requested he take up prescribing sch 8 drugs. In order to do that, Dr Liprini contacted the Pharmaceutical Branch of the NSW Department of Health. An officer from that department suggested he should obtain from the Medical Council a letter supporting his right to prescribe sch 8 drugs. He accordingly made contact with the Medical Council and that contact ultimately gave rise to the Medical Council convening a s 150 hearing to consider his circumstances. 6. A file note made by an officer of the Medical Council is said by Dr Liprini to have given rise to a deception and ultimately to the action commenced by the HCCC. 7. Dr Liprini addressed other aspects of the evidence before the hearing in the Tribunal. The thrust of the submission is that the decision of the Tribunal was based upon evidence which was distorted, exaggerated or falsely provided. 8. The submission from Dr Liprini concluded with his advising that he had filed a notice of intention to appeal the decision of the Tribunal made 25 August 2020. 9. The submission of Dr Liprini did not address the order for costs sought by the HCCC other than to suggest the decision of the Tribunal may well be overturned by the NSW Court of Appeal. 10. I have to address the application filed by the HCCC. 11. The HCCC was successful in its application in that it sought the cancellation of the registration of Dr Liprini as a medical practitioner. As the authorities provided by the HCCC demonstrate, costs in the Tribunal would normally follow the event, unless there are circumstances relating to the conduct of the parties which would suggest that ought not be the case. 12. In this matter there is no suggestion there is any action on the part of the HCCC which ought be taken into account to offset a submission that it is entitled to an order in its favour for the full amount of its legal costs and disbursements. The submission of Dr Liprini really addresses his objection to the outcome of the case. 13. In the circumstances I propose to make an order that Dr Liprini pay the costs of the HCCC as agreed, or as assessed. I am not prepared to make an order for a fixed sum as it is very likely to give rise to an appeal, against that order, which will created more work for the HCCC and the NSW Court of Appeal. I acknowledge that Dr Liprini may well appeal the order I propose to make, as is his right.