Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gahan (No 2) [2021] NSWCATOD 66 Hearing dates: On the papers Date of orders: 19 May 2021 Decision date: 19 May 2021 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Decision: The respondent is to pay 80% of the applicant's costs, as agreed or assessed. Catchwords: COSTS — Occupational Division — Health Practitioner List — differential costs order — where complaints of unsatisfactory professional conduct and professional misconduct proven — where complaint of impairment not proven — broad brush approach Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club v Turner [2016] NSWCA 369 Health Care Complaints Commission v Emery (No. 2) [2017] NSWCATOD 23 Health Care Complaints Commission v Gahan [2021] NSWCATOD 40 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Monie v Commonwealth of Australia (No.2) [2008] NSWCA 15 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Nil Category: Costs Parties: Health Care Complaints Commission (Applicant) Sarah Louise Gahan (Respondent) Representation: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2020/00280579 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On 12 April 2021, after a hearing on 15 March 2021, the Tribunal decided to make an order under s 149C(1)(b) and/or 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) (the National Law) cancelling the respondent's registration. The Tribunal also made an order under s 149C(7) of the National Law that an application for review of the cancellation order may not be made until one year from the date of the Tribunal's decision. 2. At the conclusion of those reasons, we gave directions for the filing of submissions in the event that the Health Care Complaints Commission (the Commission) sought an order for costs. 3. The Commission provided written submissions on 26 April 2021. In short, it sought an order that the respondent pay the whole of its costs as agreed or assessed. Alternatively, it sought an order that the respondent pay 80% of its costs as agreed or assessed. This was on the basis of the Tribunal deciding to order less than the whole of its costs because the Commission had been unsuccessful in establishing the fifth complaint, namely that Ms Gahan suffered from an impairment. 4. No submissions were received from Ms Gahan, which were due on 10 May 2021. Proceedings before the Tribunal 1. Reference should be made to the primary decision, Health Care Complaints Commission v Gahan [2021] NSWCATOD 40. In summary, the Commission brought five complaints to the Tribunal. 2. Complaint One was brought pursuant to s 144(a) of the National Law and alleged that Ms Gahan had been convicted of criminal offences. The Tribunal found this complaint established. 3. Complaint Two was brought pursuant to s 144(b) of the National Law and alleged that Ms Gahan is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law. 4. Complaint Three was brought pursuant to s 144(b) of the National Law and alleges that Ms Gahan is guilty of unsatisfactory professional conduct within the meaning s 139B(1)(l), namely "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". 5. Complaint Four was also brought pursuant to s 144(b) but alleges that, by virtue of the conduct underlying Complaints Two and Three, Ms Gahan is also guilty of professional misconduct as defined in s 139E of National Law. 6. Ms Gahan admitted each of these complaints. Independently, the Tribunal found each established. 7. Complaint Five was brought pursuant to s 144(d) of the National Law and alleged that Ms Gahan had an impairment within the meaning of s 5 of the National Law, namely a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect her capacity to practise nursing. 8. Ms Gahan did not admit this complaint. The Tribunal's consideration of the evidence and submissions in respect of this complaint are set out in [95]–[105] of the primary decision. For the reasons given at [106]–[110], the Tribunal was not satisfied that Complaint Five was established. Consideration 1. The applicable legal principles relating to the award of costs in this jurisdiction include the following: 1. the Tribunal has a discretion to order any party to pay costs to another person: Sch 5D, cl 13 of the National Law; 2. the question of costs is discretionary, the discretion being a judicial one which must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]; 3. costs are intended to compensate a successful party; costs are not intended to penalise an unsuccessful party: Philipiah at [44]; 4. it is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made: Philipiah at [44]; mere impecuniosity is not a justifiable reason for departing from the general rule: Philipiah at [42]; 5. as a general rule, in this jurisdiction costs of proceedings before the Tribunal should follow the event: Philipiah at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87]; 6. there may be factors that might militate against the recovery by the successful party of all of its costs in particular proceedings. This includes where the Commission failed to establish all of the particulars of professional misconduct alleged: Philipiah at [42]; 7. a court or tribunal may deprive the successful party of the costs relating to an issue on which the successful party lost when that issue was clearly dominant or separable: Monie v Commonwealth of Australia (No.2) [2008] NSWCA 15 at [64]. 1. This last principle was the subject of discussion by the Tribunal in Health Care Complaints Commission v Emery (No. 2) [2017] NSWCATOD 23 at [11]–[19]. In summary: 1. unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed; 2. exercising the discretion as to costs on an issue by issue basis can produce complexity and disputation; in determining the proper costs, the appropriate approach is a broad-brush approach: Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club v Turner [2016] NSWCA 369 at [72]; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [18]–[19]). 1. The Commission submits that it should be entitled to its full costs as assessed or agreed as: 1. the Commission was successful in proving all of the allegations in the Complaint, other than impairment; 2. while the respondent admitted the allegations in particulars 1 to 3 and that they amount to unsatisfactory professional conduct and professional misconduct, this did not abrogate the need for an inquiry into the respondent's conduct, noting the paramount consideration of public safety; and 3. as the respondent did not appear before the Tribunal, the Commission prepared lengthy written submissions (inclusive of relevant mitigating factors) to assist the Tribunal to consider the Complaint efficiently and fairly to the respondent. 1. I accept the first two submissions, but I do not place much weight on this last factor. Regardless of the presence of the respondent, I would have expected the Commission to provide written submissions to assist the Tribunal. 2. I see no reason in the circumstances of this application why the applicant should not be awarded its costs. 3. In my view, the impairment complaint, about which the Commission was unsuccessful, and occupied a not inconsiderable proportion of the evidence (including the expert evidence of Dr Samuels), submissions and hearing time, was sufficiently severable from the other complaints agitated to warrant a differential costs order. 4. I accept the Commission's suggestion that a 20% reduction in the costs ordered is appropriate. Orders 1. The Tribunal orders: 1. The respondent is to pay 80% of the applicant'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 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: 19 May 2021