Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brennan v Medical Council of NSW [2020] NSWCATOD 137 Hearing dates: On the papers Date of orders: 27 November 2020 Decision date: 27 November 2020 Jurisdiction: Occupational Division Before: Le Poer Trench ACDJ, Principal Member Decision: (1) The application of Dr Brennan to suppress the reporting of the Health Conditions attached to his registration, is refused. (2) Dr Brennan is to pay one half of the costs of the Medical Council of the proceeding relating to his application for reinstatement, such application having been determined on 4 September 2020. (3) Dr Brennan is to pay the costs of the Medical Council in opposing his application for the suppression order. (4) Dr Brennan is to pay one half of the costs of the Medical Council in relation to their cost application. (5) In relation to each cost order the amount of such orders is to be as agreed or failing agreement, as assessed. Catchwords: PROFESSIONS AND TRADES – health and professionals – medical practitioners – disciplinary proceedings – Non publication of Health Conditions – Costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (NSW) (repealed) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Brennan v Medical Council of NSW [2020] NSWCATOD 100 Donnelly v HCCC [2014] NSWCATOD 155 Haber v Health Care Complaints Commission [2018] NSWCATOD 16 HCCC v Do [2014] NSWCA 307 Health Care Complaints Commission v Brennan (No. 2) [2018] NSWCATOD 51 Health Care Complaints Commission v Dr A [2012] NSWMT 10 Health Care Complaints Commission v Ede [2019] NSWCATOD 184 Health Care Complaints Commission v Gow (NSWMT unreported 21 October 2008) Health Care Complaints Commission v Quan (Publication Application) [2019] NSWCATOD 160 Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Reinhart v Welker (2011) NSWLR 311 Texts Cited: Nil Category: Procedural and other rulings Parties: Keith Ian Brennan (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: T Hackett (Applicant) L Fernandez (Respondent) Solicitors: Michael Evers & Co (Applicant) Medical Council of NSW (Respondent) File Number(s): 2019/00323530 Publication restriction: Nil REASONS FOR DECISION Background 1. There are two applications which require determination in this matter following the orders made by the Tribunal on 4 September 2020. The first is an application by Dr Brennan for "Non publication of Health Conditions". The second is an application by both parties for costs orders. 2. The application for "Non publication of Health Conditions" is opposed by the Medical Council of NSW ("the Medical Council"). 3. The Medical Council seeks an order for Dr Brennan to pay the costs of the Medical Council in the sum of $29,364.04. Dr Brennan opposes that order and seeks that the Tribunal make an order that the Medical Council pay the costs of Dr Brennan with such costs to be assessed. Alternatively, Dr Brennan seeks that the Tribunal order that each party pay their own costs. The Non-Publication of Health Conditions Application 1. The order made on 4 September 2020 permitted Dr Brennan to have his registration as a medical practitioner reinstated subject to extensive conditions. Those conditions are as follows: (5) Practice conditions: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the subject practitioner) and where there is predominantly one other registered medical practitioner always on site. 3. To practise no more than 35 hours per week and no more than 5 days per week. 4. To treat, no more than 4 patients per hour or 25 patients in any one day (a) This condition does not prohibit the practitioner from providing emergency medical services to a patient in compliance with section 139C(c) of the Health Practitioner Regulation National Law. (b) If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 5. Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a statement of the hours worked, the number of patients seen and the number of hours spent in consultation with his supervisor in the preceding month. 6. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) The terms of the Council's Compliance Policy – Supervision are varied so that the frequency of the practitioner's review meetings with his supervisor is to be weekly for the first 12 weeks of the practitioner recommencing practice, with the provision of monthly reports to the Medical Council of NSW during the first 12 weeks. (b) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: • professionalism and professional ethics including the maintaining of appropriate professional boundaries with patients; • recent developments in clinical practice; • workload management; • clinical performance including review of medical record and clinical outcomes. (c) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition and any relevant Council decision or report. (d) Not to practise until a supervisor has been approved by the Medical Council of NSW. (e) To be supervised for a minimum period of two (2) years and as subsequently determined by the Council. 7. To nominate an experienced general practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the Medical Council of NSW. (a) At each mentoring meeting the practitioner is to include discussion of the following: • Personal and/or professional development • Personal and/or medical practice issues as they arise • Personal and/or professional boundary issues • Work/life balance and personal wellbeing (b) To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. (c) To authorise the Medical Council of NSW to provide proposed and approved mentors with a copy of the decision which imposed this condition and any relevant Council decision or report. (d) To be mentored for a minimum period of two (2) years and as subsequently determined by the Council. 8. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 9. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Health Conditions 10. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) Is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) Must provide the Medical Council of NSW with the professional details of his treating practitioner. 11. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) Is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) Must provide the Medical Council of NSW with the professional details of the treating practitioner. 12. To take any medication as prescribed by his treating practitioners. 13. To act upon the advice of his treating practitioners so that the extent of his professional medical duties is guided by his health status and the advice of his treating and Council-appointed practitioners. 14. To abstain completely from the consumption of alcohol. 15. To comply with the Medical Council's Alcohol Screening Policy and Participant Procedure: EtG screening (as varied from time to time) and attend for EtG screening (urine), commencing with twice-weekly screening. 16. To attend for review by a Council-appointed psychiatrist at the conclusion of his first three months of practice and thereafter on a three-monthly basis or as otherwise directed by the Medical Council of NSW. 17. To attend a Medical Council of NSW's Review Interview on a three-monthly basis or as otherwise directed by the Council. 18. To authorise the Medical Council of NSW to forward copies of the decision which imposed these conditions, and any subsequent Council Review Interview or other reports, and any other information relevant to his health and treatment, to the Council-appointed practitioners and to his treating practitioners. 1. The application of Dr Brennan for non-publication relates to the Health Conditions only. 2. Dr Brennan relies upon s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to establish the Tribunal's power to make an order in the nature of that sought. 3. Section 64 of the NCAT Act is as follows: CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2013 SECT 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders-- (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. Dr Brennan relies upon the Tribunal decision in Health Care Complaints Commission v Quan (Publication Application) [2019] NSWCATOD 160 as establishing the Tribunal may make an ancillary order pursuant to s 64 of the NCAT Act. 2. The submission by Dr Brennan addressed the decision in Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 to support the submission that there is no conflict between s 64 of the NCAT Act and cl 7 of Schedule 5D of the Health Practitioner Regulation National Law (the "National Law"), since cl 7 is limited to a defined period of time "when the members of the panel to hear a matter have been appointed". 3. Dr Brennan acknowledges that in deciding whether to make a suppression order or non-publication order, the Tribunal must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 6 Court Suppression and Non-publication Orders Act 2010). 4. Dr Brennan submits that the order sought in this case as to Health Conditions only would not compromise the public interest in open justice. It is submitted that the findings of this Tribunal in the reinstatement application, including the health conditions, have been reported in the local news media and the reports are available by Google search on the Internet. 5. Dr Brennan submits that section 8(2) of the Act provides an order must specify the grounds on which the order is made, per section 8(1)(c), inter alia, as follows: (c) the order is necessary to protect the safety of any person; 1. Section 9 of the Act provides an order can be made at any time during proceedings or even after proceedings have concluded, see section 9(3). 2. Dr Brennan's counsel submits that: "the previous Stage 2 decision of 11 April 2018 confirmed the adverse effect on the applicant, specifically contributing to his mental health problems and hospitalisation, of the public city which followed publication by the media of sensitive private and health information in Stage 1 decision, with reference to a passage repeated at [66] of the Tribunal's decision allowing the reinstatement application." 1. At paragraph [92] of the Judgment of the Tribunal in Health Care Complaints Commission v Brennan (No. 2) [2018] NSWCATOD 51, made 11 April 2018, the Tribunal stated: "generally, the applicant was very cooperative with the Tribunal and the cross examiner. We felt he did his best to answer questions which largely took him back to his conduct in 2014 and following. That conduct gave rise to his face in the Tribunal and also to a rapid degeneration of his mental health. He was hospitalised for six weeks in 2016 suffering from PTSD, alcohol use disorder and severe depression." 1. Whilst acknowledging that "Section 6 also reflects the legislative intention that orders under the Act should only be made in exceptional circumstances: Reinhart v Welker (2011) NSWLR 311 (Reinhart) at [26] and [32]." The Applicant says that while acknowledging what has been said in Reinhart, it is submitted the making of the order would not frustrate the administration of justice or any other public interest. Further the Appellant submits: "an order of limited scope to protect the applicant's privacy in relation to health conditions is sufficiently particular to ensure that it is limited to achieving the purpose for which it is made, pursuant to section 9(5) of the Act". 1. It is submitted that: "the private interests of the applicant include maintaining the confidentiality of his sensitive private health information, his mental health and his employability where there is no prejudice to the public interest in doing so." 1. The Applicant relied upon part of the Tribunal's decision in Haber v Health Care Complaints Commission [2018] NSWCATOD 16: "(6) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]." 1. The Applicant concluded his submission with the following: "In summary, the applicant submits the Tribunal would exercise its discretion to make the requested order, which would balance the public interest in open justice with the exceptional circumstances of the interests of the applicant to maintain confidentiality of his sensitive private health information, his opportunity for rehabilitation, his mental health and his employability and the public interest in his return to practice as an excellent clinician and as an aboriginal practitioner for the aboriginal community. The exceptional nature of the circumstances are accentuated in this case where it has been established that previous publication of personal information, including health information, related to the outcome of the proceedings before the Tribunal in 2017 and 2018 had an adverse effect on the applicants mental health." 1. The Medical Council provided its submission which addressed both the application of Dr Brennan for non-publication of his health conditions imposed by the Tribunal and the costs applications of both parties. 2. The Medical Council submits that the impact of the application, if granted, would mean that members of the public and the medical profession would not be informed of the important conditions which have been set by the Tribunal, and provide for careful monitoring and restrictions on Dr Brennan upon his recommencing practice as a medical practitioner. 3. The Medical Council opposes the application for the following reasons: (a) The orders of the Tribunal are an important part of NCAT's protective jurisdiction and the public interest requires them to be published. (b) The health conditions are significant in a particular respect, because they were made in a reinstatement application. (c) Exceptional circumstances have not been established which would justify a non-publication order, especially as there is no evidence of harm to Dr Brennan's safety as a result of publication of the health conditions. (d) It would be futile to make a non-publication order that excludes publication of the orders only, as the decision is available online and has already been published. 1. The Medical Council emphasise the importance of the protective orders to members of the public. That would include future patients of the applicant. It is submitted that the publication of those health conditions are necessary so that potential future patients can make informed decisions as to whether they wish to be treated by the Appellant. 2. The Medical Council referred to a number of portions of the Tribunal's decision of 4 September 2020. In particular the following segment at [211]: "We are satisfied that conditions can be imposed upon the registration of Dr Brennan, should he return to practise, which will safely guard against his practising medicine, whilst suffering with any of the aforementioned disorders, should any re-occur." 1. Again, the Medical Council referred to paragraphs [231] and [232] of the judgment and highlighted the following words: We accept that the change in the state of his mental health and alcohol disorder establish, to our satisfaction, that the risk of his future disregard for proper professional boundaries is low and will be contained and observed by the conditions which we can attach to his registration as a medical practitioner. We observe, for ourselves, that the conditions should be no more onerous to Dr Brennan than is necessary to protect the public. We are satisfied there is an acceptably low risk of his again crossing professional boundaries as a medical practitioner, if conditions attend his registration. 1. Further, the Medical Council drew the Tribunal's attention to the following portions of paragraphs [243] to [248]: We consider that category B supervision is required in the circumstances of this case to protect the public. Dr Brennan had a very severe illness and a significant alcohol disorder when he was last in practice. It is therefore necessary, we conclude, for the protection of the public, that a more comprehensive form of supervision be imposed in the first place, than would be available under category B. It cannot be in the interests of the practise of medicine generally, or the wellbeing of Dr Brennan, to impose conditions which, because they have such an onerous impact upon him, exacerbate his mental health and reduce his ability to optimally perform as a medical practitioner. Where we consider there is a potential for that to eventuate, we will either modify the condition or not impose same. One of the conditions sought by the Medical Council and also Dr Brennan is that he be totally abstinent from alcohol. We conclude such a condition necessary for so long as the Medical Council of NSW deems that condition is necessary. We anticipate that body will review the conditions we have imposed from time to time and that as Dr Brennan satisfies the Medical Council that it is appropriate to modify or extinguish any of the conditions it will do so. 1. The Medical Council submits that the health conditions serve an essential part in the protection of the public. They should not be suppressed. The Medical Council submits the particular necessity for open justice in this case is because the health conditions were made after a successful reinstatement application. It submits members of the public are entitled to know that it was the health conditions which served as an important basis for Dr Brennan's reinstatement. The health conditions also have an educative function and there is a deterrent aspect to the profession. 2. The Medical Council referred to the decision in Health Care Complaints Commission v Ede [2019] NSWCATOD 184 at [28] (s 3A of the National Law stated). The decision in Health Care Complaints Commission v Vo NSWCATOD 127 at [182] to [183] was also cited and set out in the submission. 3. The Medical Council submitted that Dr Brennan has to establish that there are exceptional circumstances which justify the non-publication order he seeks. The Medical Council submits Dr Brennan has not served any expert evidence in support of his application. Instead, the Medical Council submits, Dr Brennan relies on the Tribunal to draw inferences based on certain findings contained in the reinstatement judgment. 4. It is submitted by the Medical Council that, as the Tribunal found, Dr Brennan had taken action to address his mental health and the Medical Council submits that the health conditions are an important part of securing the ongoing attendance by Dr Brennan to his mental health and consequently the safety of the public. 5. The Medical Council submits that the Tribunal would find there is no evidence that establishes exceptional circumstances that something special, exceptional or out of the ordinary, exist in the case of Dr Brennan. 6. The Medical Council submits that the non-publication application at this late stage is a futile exercise. There has already been publication of the health conditions and those publications will remain for the public to see should they take the course of seeking information about same. 7. It is submitted by the Medical Council that the application be dismissed. Determination 1. In Heath Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 (21 February 2019) Boland ADCJ considered the legislation and decisions applicable to the exercise of power to make a non-publication order following the determination by the Tribunal of a particular matter. 2. Her Honour determined that s 64 of the NCAT Act is available to the Tribunal in a circumstance such as that now relevant to this determination. Her Honour said: "Applying these principles I find: (1) Although at first blush there may appear to be a direct conflict between the two provisions, on closer analysis I am not satisfied the National Law provides an exclusive code and prevails over the NCAT Act. Clause 7 is limited to a defined period of time when the members of the panel to hear a matter have been appointed, including the allocation of a matter to a member of NCAT qualified under s 165B(2)(a) or a judge appointed under s 15 of the NCAT Act. There may be occasions when a Tribunal determines a non-publication order should be made but it is not possible to notify other persons in accordance with sub-cl 3. As in this case, the wording of the clause does not support a variation of an order once the disciplinary proceedings have been completed. Thus, cl 7 as presently drafted is not inconsistent with s 64. (2) Section 64 may be construed as the dominant provision and cl 7 as the subservient provision. Thus, any apparent inconsistency is overcome. It is strongly arguable that since the establishment of the Tribunal, s 64 provides a comprehensive statutory framework for non-publication orders and that cl 7 has no work to do and could be repealed. (3) I do not find that s 64, being a provision of the NCAT Act, can be invoked to vary an order made under cl 7 of Schedule 5D as the power to vary an order in s 64(3) is limited to variation of an order made under s 64(1). (4) I am satisfied that a new order can be made under s 64 as an ancillary order and that order, by implication, will rescind any order made under cl 7 of Schedule 5D and supersede that order." 1. Her Honour then considered authorities which have addressed an application to suppress the name of the particular practitioner. Here her Honour said: "The guidance derived from the cases gives emphasis to the principle of open justice, and the limited circumstances, when in the discretion of the Tribunal, it is appropriate for there to be a departure from that principle. This is in accordance with the objects of the National Law to promote the health and safety of the public by ensuring only those practitioners fit to practice do so, upholding the reputation of the profession and deterring like conduct by other professionals." 1. Her Honour referred to the decision of the former Tribunal in Health Care Complaints Commission v Vo [2014] NSWCATOD 127 (Vo). In that decision, the Tribunal referred to the decision in Health Care Complaints Commission v Gow (NSWMT unreported 21 October 2008), which determined: "the protective nature of the jurisdiction outweighed the adverse consequences which may be suffered by a former practitioner, who was terminally ill, if his name was published." 1. Also in Vo, the Tribunal referred to the decision in Health Care Complaints Commission v Dr A [2012] NSWMT 10. The Tribunal in Vo said about that case: "In that case there was expert evidence before the Tribunal. That Tribunal found special and exceptional circumstances, namely that one of the practitioner's teenage children, who had a history of an admission to a Psychiatric unit following a serious suicide attempt, could likely be very adversely affected by publicity about her father's conduct." Conclusion 1. The Medical Council provided very important submissions in relation to the application. Of significance was the submission that it is in the public interest for both current and future patients of Dr Brennan to know what he is required to undertake in relation to his own personal health, in order to practice medicine. 2. In relation to that submission it is important, in my view, to have regard to the complaint which gave rise to the original action before the Tribunal. The 2018 decision of the Tribunal was not determined upon a complaint as to the medical competency of Dr Brennan, but rather on his failure to ensure proper boundaries between he and his patients. 3. Clearly a question to be considered in this determination, is whether the knowledge of current or future patients of the Health conditions imposed upon the registration of Dr Brennan is outweighed by the impact upon the mental health of the applicant. 4. The imposition of conditions upon a medical practitioner returning to practice after a period of de-registration as a consequence of a Tribunal order, cannot be designed to ensure that the practitioner, in fact, is never able to practice. It must follow that if the Tribunal concludes that it is appropriate to permit the medical practitioner to be reinstated to practice, then the conditions imposed must focus on the protection of the public and yet be no more stringent than is necessary to attend to that need. In this case it must be asked whether the Tribunal had an opportunity to consider whether Dr Brennan's mental health was so fragile at the time of the hearing that to publish the Health conditions may well give rise to a relapse in his mental health which would pose a danger to the public. As the decision of the Tribunal of 4 September 2020 illustrates, that was not the evidence before the Tribunal. 5. The conditions imposed have two aspects to them in relation to the public. One is to protect the public from the adverse consequences of medical practice and the second aspect is to provide the public with sufficient information to be able to make an informed decision as to whether they will use the services of a medical practitioner who is the subject of such conditions. 6. Having said that, the Tribunal must face the inevitable consideration of the extent to which patients will access the information setting out the conditions under which a medical practitioner may practice. It is not a requirement of the conditions that they be published in the waiting room of the practice in which the medical practitioner is working, nor is it a requirement for publication in local and national newspapers and news outlets, local to the place the practitioner will practice medicine, of the conditions set by the Tribunal. 7. However, as the Medical Council points out in its submission, the information is currently available should a patient undertake the task of searching for the report of the Tribunal decision. 8. As was submitted by the Medical Council, the application by Dr Brennan lacks supporting evidence and in an application where the Tribunal is only able to find in the applicant's favour if "something special, exceptional, or out of the ordinary, must be established", that lack of evidence is defeating of the application. Having so found, I note it is difficult to see what evidence could have been put forward on behalf of Dr Brennan which would not have raised a concern about the soundness of the decision made by the Tribunal in permitting his re-registration. 9. I conclude that the Application should be dismissed. 10. Having so decided, I would like to record that I was the Principal Member of the Tribunal which imposed the conditions upon the registration of Dr Brennan as a medical practitioner. For my part I was very impressed by Dr Brennan as a person and also for the path he had taken to return to practice as a medical practitioner. Having seen the testimonials which were provided to the Tribunal in that hearing by former patients and colleagues, I considered Dr Brennan had a great deal to offer patients wherever he chose to practice. The Health Conditions, in my view, guard against the enthusiasm of Dr Brennan to provide good medical services to his patients over-riding his desire to stay fit and well in order to provide those services. Before he ceased practice and was hospitalised, Dr Brennan had worked at such a frenetic pace in order to attend to his patients' needs, that he neglected his own health. The Health conditions will ensure that he does not fall into that abyss again. 11. The evidence which was before the Tribunal and set out in the decision of 4 September 2020, satisfies me that Dr Brennan's mental health and character is robust enough now to be able to psychologically accept that some of his patients will know what his Health conditions are. COSTS APPLICATION 1. Part of the order made by the Tribunal on 4 September 2020 was the following: "(6) The parties are to forthwith commence consultation for the purpose of endeavouring to reach agreement as to a cost order, which might be made by consent. In the event of agreement, the parties are to file the form of consent order to be made. In the event of no agreement being reached, then any cost order being sought is to be filed and served, with short submission attached, within 21 days from the date hereof. The party receiving service of that application and submission, is to respond by filing and serving a response within a further 21 day period." 1. The parties have consulted, however, they have been unable to reach an agreement about costs. 2. The Medical Council provided its submission in relation to costs. The Medical Council seeks an order that the Applicant pay the Council's costs in the fixed sum of $29,364.04. In support of that submission the Medical Council set out its submission on the applicable law as follows: 7. The Tribunal has the power to award costs pursuant to cl 13, Sch 5D of the National Law: (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. 8. The Tribunal may fix the amount of costs or order that costs be assessed – see cl 13(3A) of Sch 5D of the National Law. 9. The law on costs of a reinstatement application does not follow the ordinary course in which costs follow the event. 10. Costs can be awarded to the respondent (the Medical Council of NSW or the Health Care Complaints Commission in the case of the other health professions) in reinstatement matters on the basis that the respondent necessarily represents the interests of the public and of the broader profession in testing the applicant's evidence, opposing the application where appropriate and proposing suitable conditions to apply if a reinstatement order is made. A further reason for awarding costs to the respondent is that but for the Applicant's previous misconduct, which resulted in the cancellation of their registration, the respondent would not need to take on the role of contradictor in reinstatement proceedings. 11. In Rajesh Dinakar v Medical Council of NSW, 12 December 2012, Medical Tribunal of NSW, the Tribunal noted at [54] that "[A]s we are satisfied that it was necessary for the Council to be represented before us to test the Applicant's evidence and propose suitable conditions, we are of the view the Applicant, although successful, should pay the Council's costs." 12. In Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49, the Tribunal made the following findings relating to costs: [90] Proceedings of the present kind arise because of the prior misconduct of the Applicant, and can be seen as ancillary. While it might be said that the Applicant has been 'successful', and thereby should, at the least, not be exposed to the respondent Council's costs, that misunderstands the nature of the respondent's involvement at the inquiry. As noted by the Tribunal in Kazmierczak at [54] (and set out at [76] in Parajuli): '[A]lthough the Applicant has been successful, the fact is that it was entirely appropriate for the Medical Board to oppose his application. The Medical Board in such applications plays a highly significant part on behalf of the public and the medical profession in putting Applicants to the Submissions on behalf of the Medical Council of NSW test and in ensuring that their background or at least their character is properly ventilated: that no Applicant is reregistered without a sufficient investigation into what they have done since the deregistration.' [91] Parajuli was a case where the respondent had actively opposed the application, but the Applicant had prevailed. The Tribunal continued: 'Because it was entirely appropriate for the application to have been opposed and because it was in effect the Applicant's conduct which has brought about this application in any event, he should pay the costs of the application'. [92] Here the ultimate position of the respondent was one that was not opposed to reregistration, though the ultimate decision is always that of the Tribunal. The same rule should apply. 13. Further, in Ake v Health Care Complaints Commission [2019] NSWCATOD 165, the Health Care Complaints Commission neither supported nor opposed the application for reinstatement and the practitioner was reinstated subject to conditions: [48] This issue was addressed in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 (Ameisen). There, the Tribunal considered it a misnomer to describe an Applicant who is reinstated following an inquiry to review a "relevant order" as having been "successful". Reasoning that this characterisation "misunderstands the nature of the respondent's involvement in the proceedings", the Tribunal pointed out at [90] that reinstatement proceedings "arise because of the prior misconduct of the Applicant [practitioner], and can be seen as ancillary [to the original proceedings which resulted in the cancellation of the practitioner's registration]". The Tribunal ordered Dr Ameisen to pay the respondent Council's costs, notwithstanding its decision that he be reinstated to the register of medical practitioners. [49] This approach was followed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18. There the Tribunal concluded at [87]: "Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused." [50] In Ristevski the Tribunal examined a number of cases where on review of the relevant order, the Applicant practitioner was reinstated but not ordered to pay the costs of the respondent Council or Commission: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43, Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 and Roberts v Medical Council of New South Wales [2015] NSWCATOD 35. The Tribunal concluded that each case had "exceptional features" and the relevant Tribunal had been critical of aspects of the respondent's participation in the inquiry: Ristevski at [74], [78], [82] and [88]. (See also Vo v Medical Council of NSW [2018] NSWCATOD 18 Submissions on behalf of the Medical Council of NSW at [144]. Cf Haber v Health Care Complaints Commission [2018] NSWCATOD 16; Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102). [51] We agree with the view expressed by the Tribunal in Ristevski at [70]-[71] that in conducting a review of a relevant order under s 163B of the National Law, 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. The involvement of, to use the term coined in Ristevski, a "public interest respondent" in review proceedings, assists the Tribunal in discharging its obligation to ensure that all relevant material is disclosed so as to enable it to determine all relevant facts in issue: s 38(6)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). 14. It is of particular note that the Medical Council has been awarded costs in proceedings in which the Council has opposed the making of a reinstatement order, yet the order was made. See Vo v Medical Council of NSW [2018] NSWCATOD 18: [141] 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. [142] While the power to order costs is discretionary, there is nothing about this case that might suggest that the Council should not receive an order for its costs of responding to the application. 15. See also Reimers v Medical Council of New South Wales [2018] NSWCATOD 180, In re Andrzej Kazmierczak, unreported, NSWMT, 6 May 2010 and Parajuli v Medical Council of New South Wales [2011] NSWMT 4 in which the Council opposed the application and was awarded costs in the proceedings. 1. In relation to the costs in this proceeding, the Medical Council submitted an order should be made as it seeks. 2. In support of its case, the Medical Council submits its involvement in these proceedings arose because of the Tribunal having cancelled the registration of Dr Brennan in 2018. The Medical Council acted in the reinstatement Application on behalf of the public and the medical profession in order to test Dr Brennan's application. The Medical Council tested the evidence of Dr Brennan and the experts engaged by him through cross-examination during the hearing. 3. It is further submitted by the Medical Council that it assisted the Tribunal by presenting expert evidence from Dr Ventura. It further assisted the Tribunal by proposing a number of conditions which would ensure that if an order for reinstatement were made, the health and safety of the public would be protected. 4. The Medical Council submitted that the Tribunal did not criticise the position of the Council and further it is submitted the Council has not engaged in conduct that might disentitle it from having its costs covered by the applicant in these proceedings. 5. The Medical Council provided details of how the some sort as across order was comprised. 6. Dr Brennan seeks an application for a costs order to be awarded in his favour, with those costs to be assessed. In the alternative, he seeks an order that each party bear its own costs. He submits that such an order would be consistent with the authority in Donnelly v HCCC [2014] NSWCATOD 155 ("Donnelly"). 7. In support of that case, the applicant submits the power to award costs pursuant to clause 13, Schedule 5D of the National Law is a discretionary power. 8. The applicant submits that the general principles relevant to the award of costs in the Tribunal were explained by Meagher JA in HCCC v Do [2014] NSWCA 307 ("Do"). At [51] His Honour explained: "[84] In HCCC v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event". 1. The Applicant submitted further as follows: "12. The applicant seeks an order for costs in his favour, with those costs to be assessed. However, he acknowledges that an order for costs in one party's favour, based on the general principle that costs follow the event, more appropriately applies to complaints matters rather than to reinstatement applications. 13. The main authority on the issue of the determination of costs in reinstatement applications in the Tribunal is Donnelly in which it was noted that the compensatory principle 'is not necessarily apposite to reinstatement cases" ([55] – [57]). Donnelly is based on Court of Appeal authority in HCCC v Do [2014] NSWCA 307 and has been accepted in several other cases, referred to below. 14. In Donnelly no costs order was made in favour of the applicant practitioner based on a balancing of the following factors: (i) the practitioner had no choice but to make the application if he wished to obtain reregistration…. such application generates a role as contradictor for the HCCC; (ii) to award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the fact that costs are involved in acting as a contradictor or vice versa; (iii) the application for review flows as a consequence of proven misconduct of the practitioner; (iv) as the statutory contradictor, the Commission has to respond to the application; (v) there was no disentitling conduct on the part of either party; (vi) the Commission's participation was helpful and promoted the public interest. It assisted in ensuring all relevant information came out and was properly tested enabling the Tribunal to be confident in the decision that a reinstatement order was appropriate and public properly protected. 1. The applicant submits that "substantially the same factors as were considered in Donnelly apply to this case." 2. The Applicant said: "In short, it is submitted that the applicant should not be compensated for his costs, but neither should he have to compensate the Council." Further, "unless there has been disentitling conduct the most appropriate order is that each party pay their own costs." 1. The Applicant relied upon the following portion of the judgment in Donnelly. At [66] – [67]: "In determining what to do about costs in this case, we note that neither the HCCC nor the successful applicant, Dr Donnelly, have done anything in the way they,conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour…. To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case. Consequently, we declined to exercise our discretion to make a costs order under cl 13 of Sch 5D of the National Law. As a result the parties will bear their own costs in relation to this application." 1. The Applicant said that the reasoning in Donnelly has been followed in the following cases: • Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43; • Roberts v Medical Council of New South Wales [2015] NSWCATOD 35; • Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102; • Haber v Health Care Complaints Commission [2018] NSWCATOD 16; • Ledner v Health Care Complaints Commission [2019] NSWCATOD 30; • Girgis (Née Tanios) v Health Care Complaints Commission [2019] NSWCATOD 126. 1. The applicant replied to the submission of the Medical Council on the costs application. 2. The applicant addressed a number of submissions made by the Medical Council and also addressed some of the authorities relied upon in support of that submission. In particular, the decision in "Ameisen" noted that "the ultimate position of the respondent was one that was not opposed to re-registration." 3. The applicant points out that the respondent not opposing re-registration for Dr Brennan was not the case before the Tribunal. The Medical Council did oppose re-registration, however, they did also at the request of the Tribunal, provide a suite of conditions which it submitted all be applied by the Tribunal to the registration of Dr Brennan should it conclude that re-registration was the appropriate outcome. 4. The Applicant submits that in the decision of Vo the applicant made no submission in relation to the Health Care Complaints Commission's application for costs. As a consequence, the Applicant submits this decision should be discounted. 5. The Applicant concludes the submission by emphasising that the Tribunal would rely most significantly on the decision in Donnelly in reaching a conclusion to the competing cost applications. Conclusion 1. In this matter, there is merit in each parties' application for costs. Nonetheless, there are a number of matters which I consider the most compelling in this determination. 2. The Medical Council did oppose the re-registration of the applicant. The applicant was successful in his reinstatement application. The applicant proposed that if he be reinstated that his registration be subject to conditions. There were competing submissions as to the appropriate conditions to be applied to the registration of Dr Brennan. 3. Not all of the proposal of Dr Brennan was accepted by the Tribunal in relation to the conditions which he suggested ought be imposed. Importantly, there was an issue between the Medical Council and Dr Brennan as to the category of supervision which needed to be imposed on Dr Brennan's registration. 4. Dr Brennan had submitted that Category C supervision was appropriate. The Medical Council submitted that Category B was the type of supervision which was imperative in this matter for the protection of the public. The Tribunal concluded that the Category C needed to be imposed. 5. There is a significant difference between Category B and Category C supervision conditions. 6. Dr Brennan had his registration cancelled in 2018 because of the findings of unsatisfactory professional conduct and professional misconduct made against him. 7. Given that Dr Brennan had his registration cancelled by an order of the Tribunal, it was necessary for him to make an application to the Tribunal to obtain reinstatement. 8. The Medical Council played an important role in the determination made by the Tribunal on 4 September 2020. 9. In the hearing before the Tribunal, the Medical Council pressed hard for the Tribunal to refuse the application for reinstatement by Dr Brennan. The Medical Council called and relied upon the expert evidence of Dr Ventura. 10. The position of the Medical Council in seeking a refusal of the application by Dr Brennan was not successful. 11. Dr Brennan was not successful in persuading the Tribunal that Category C supervision was appropriate. 12. There were other aspects of the conditions to be imposed upon the registration of Dr Brennan which were additional to those submitted by him as appropriate. The Medical Council had submitted that additional conditions were necessary. 13. Having regard to all the matters set out herein I conclude that if it was not for the contest between the parties as to the Category of Supervision which should be imposed upon Dr Brennan's registration, an order that each party pay their own costs would have been appropriate. 14. Having regard to the contest as to the category of supervision to be imposed, I propose to order that Dr Brennan pay one half of the cost of the Medical Council of the proceeding which led to the decision of the Tribunal made for September 2020. 15. As the Applicant has been unsuccessful in his application for suppression of the health conditions attached to his registration, I propose to order that the applicant pay the cost of the Medical Council in opposing that application. 16. In relation to the costs application pursued by the parties, I propose to order that Dr Brennan pay one half of the costs of the Medical Council of the cost application, determined herein. 17. In each case, the costs are to be as agreed or failing agreement as assessed. Orders 1. The orders of the Tribunal will be as follows: 1. The application of Dr Brennan to suppress the reporting of the Health Conditions attached to his registration, is refused. 2. Dr Brennan is to pay one half of the costs of the Medical Council of the proceeding relating to his application for reinstatement, such application having been determined on 4 September 2020. 3. Dr Brennan is to pay the costs of the Medical Council in opposing his application for the suppression order. 4. Dr Brennan is to pay one half of the costs of the Medical Council in relation to their cost application. 5. In relation to each cost order the amount of such orders is to be as agreed or failing agreement, as 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 27 November 2020 - Catchwords 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: 27 November 2020