Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Shipley (No 2) [2020] NSWCATOD 148 Hearing dates: On the papers Date of orders: 16 December 2020 Decision date: 16 December 2020 Jurisdiction: Occupational Division Before: L Pearson, Principal Member M Kettle, Senior Member J Williams, Senior Member S Lovrovich, General Member Decision: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing on the application for costs is dispensed with. 2. Pursuant to Sch 5D, cl 13(3A) of the National Law the Respondent is to pay the costs of the Health Care Complaints Commission fixed in the amount of $7,000. Catchwords: PROFESSIONS AND TRADES – health practitioner – enrolled nurse – professional misconduct - protective orders made - costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Sargeant [2019] NSWCATOD 43 Health Care Complaints Commission v Shipley [2020] NSWCATOD 128 Health Care Complaints Commission v Shrimpton (No 2) [2019] NSWCATOD 48 Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 9) [2018] NSWSC 1657 Texts Cited: Nil Category: Costs Parties: Health Care Complaints Commission (Applicant) Donna Lea Shipley (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self-represented) File Number(s): 2020/00081414 Publication restriction: Pursuant to cl 7 of Sch 5D of the Health Practitioner Regulation National Law, disclosure to any person or entity of the name of the patient set out in the schedule to the Complaint, is prohibited. REASONS FOR DECISION 1. On 13 March 2020 the Health Care Complaints Commission (HCCC) applied to the Tribunal for disciplinary findings and orders against the respondent practitioner, an enrolled nurse, under the Health Practitioner Regulation National Law (National Law). 2. On 9 November 2020 the Tribunal published reasons for its findings that the practitioner was guilty of unsatisfactory professional conduct and professional misconduct as alleged in the complaint: Health Care Complaints Commission v Shipley [2020] NSWCATOD 128. The Tribunal made orders under s 149C(1)(b) of the National Law to cancel the practitioner's registration; under s 149C(7) to impose a non-review period of three years; and under s 149C(5) to make a prohibition order. 3. The HCCC sought its costs, and indicated at the hearing that it would be seeking a fixed costs order in a discounted amount. The practitioner submitted that she is living on her superannuation, and would need an arrangement for payment of any costs order. 4. At paragraphs [87] –[88] of the reasons, we said: 87. The HCCC seeks an order that the practitioner pay its costs of the proceedings. Clause 13 of Sch 5D of the National Law enables the Tribunal to make an order for payment of costs. The relevant principles applicable to the costs of the proceedings were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282, and are that ordinarily costs should follow the event unless there are reasons to conclude otherwise. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. There is no disentitling conduct as on the part of the HCCC in its conduct of the proceedings. It is appropriate to order that the practitioner pay the costs of the HCCC. 88. The HCCC indicated that it would be seeking an order in a fixed amount, for its costs up until 26 May 2020, and requested an opportunity for submissions on such an order. The orders below include that opportunity. 1. The orders made on 9 November 2020 included the following directions: (4)The Respondent is to pay the costs of the Health Care Complaints Commission, in a fixed amount, to be determined in accordance with the following directions: (a)The Health Care Complaints Commission is to provide to the Tribunal and the Respondent submissions as to the amount, and quantification of the basis, of costs sought in the proceedings, within 14 days of the date of these orders; (b)The Respondent is to provide to the Tribunal and the Health Care Complaints Commission any submissions in response to those submissions, within 14 days of the date of receiving the submissions of the Health Care Complaints Commission; (c)The parties' submissions are to include any submission as to whether a hearing is required on the costs application; (d) Subject to considering any such submissions, the Tribunal proposes to dispense with a hearing and determine the question of costs on the basis of the documents provided. 1. The HCCC provided submissions in support of its application for an order that the practitioner pay its costs in the amount of $7000, and the bill of costs it served on the practitioner before the hearing of the matter, on 12 November 2020. The Tribunal has received no submissions in response from the practitioner. Dispensing with a hearing 1. No submission was made by the HCCC as to whether a hearing of the costs application was required. The parties have had an opportunity, as required by s 50(3) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), to make submissions as to whether a hearing is required. The issue of costs can be adequately determined in the absence of the parties, and the parties would be put to unnecessary expense if a hearing on costs were held. An order dispensing with a hearing under s 50(2) of the NCAT Act is made. Costs application 1. The HCCC submits that a costs order in a fixed amount is appropriate in the circumstances. The evidence is that the practitioner has in the past been impecunious, and since her suspension under s 150 of the National Law in October 2018 has not been able to work as a nurse or in the public health system. Her probable inability to pay a costs order would provide a proper basis for the making of a fixed costs order, in order to avoid the additional costs of assessment. 2. The HCCC submits that the amount of $7,000 sought is reasonable, and significantly discounted: 1. The bill of costs accounts for costs incurred up to 7 May 2020, and only two hours for the hearing on 9 June 2020, and there is no allowance for the other hearing days or reading the judgment or preparing the submissions on costs; 2. The HCCC has accounted for photocopying costs at 25c per page; 3. The HCCC did not engage external counsel in order to keep costs low; 4. The bill of costs does not account for time spent by the Director of Proceedings or other legal officers; 5. The total bill of costs at $9,104.85 is very reasonable for this type of matter; and 6. The bill of costs totals $9,104.85 and the HCCC only seeks $7,000 which is a further significant discount. 1. As noted above, the practitioner's response at the hearing to the HCCC submission that it is seeking its costs of the proceedings was that she would need an arrangement for payment. The evidence before the Tribunal at the hearing was that while her personal circumstances have improved since the period in which the events the subject matter of the complaint occurred, her financial situation is constrained. She has not been able to work as an enrolled nurse since her registration was suspended on 29 October 2018. 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: Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 9) [2018] NSWSC 1657. 2. As discussed in paragraph [87] of the earlier reasons, there being no disentitling conduct on the part of the HCCC, or any other basis on which it would not be appropriate to order costs, the Commission is entitled to an order that the practitioner pay its costs of the proceedings. 3. The Tribunal's power to make a costs order under cl 13 of Sch 5D to the National Law includes, under cl 13(3A), the power "to fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation …or on any other basis". As submitted by the HCCC, the power to fix the amount of costs has been exercised in appropriate matters, see Health Care Complaints Commission v Sargeant [2019] NSWCATOD 43; Health Care Complaints Commission v Shrimpton (No 2) [2019] NSWCATOD 48. 4. The Tribunal is satisfied that the practitioner has been put on notice by the HCCC of the amount sought by it in costs and how that amount is quantified. Having regard to the bill of costs provided to the Tribunal, the Tribunal agrees with the Commission that the costs sought are reasonable and relatively modest, and relevantly do not include the directions hearing on 1 July 2020 or the full day of hearing on 6 July 2020. 5. The Tribunal concludes that it is appropriate to exercise the power to fix the costs in the amount sought. It is open to the parties to confer and come to some appropriate compromise concerning the manner in which those costs will be paid. Order 1. The Tribunal orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing on the application for costs is dispensed with. 2. Pursuant to Sch 5D, cl 13(3A) of the National Law the Respondent is to pay the costs of the Health Care Complaints Commission fixed in the amount of $7,000. ********** 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: 16 December 2020