Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Heckenberg v Medical Council of New South Wales [2021] NSWCATOD 80 Hearing dates: On the papers Date of orders: 10 June 2021 Decision date: 10 June 2021 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Decision: (1) Being satisfied that the issues for determination can adequately be determined in the absence of the parties by considering written submissions and other documents provided to the Tribunal, a hearing is dispensed with. (2) The appeal is dismissed. (3) Dr Heckenberg is to pay the costs of the Medical Council of New South Wales with respect to the application for a stay and the appeal under s 159 of the National Law, from the date upon which the Medical Council of New South Wales was served with this appeal until 26 May 2021, to be agreed or assessed. Catchwords: OCCUPATIONS — Medical practitioners — appeal against conditions imposed on registration – withdrawal of appeal - costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Category: Principal judgment Parties: Meaghan Heckenberg (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: T Hackett (Applicant) M E Hall (Respondent) Solicitors: Avant Law (Applicant) Medical Council of New South Wales (Respondent) File Number(s): 2021/00094597 Publication restriction: Nil REASONS FOR DECISION 1. Following a hearing under s 150 of the Health Practitioner Regulation National Law (NSW) ('the National Law'), conditions were imposed upon Dr Heckenberg's registration, effective from 3 March 2021. 2. On 1 April 2021, Dr Heckenberg ('the Applicant') appealed to the Tribunal. Although it was not altogether clear from the appeal form, it seems, from the grounds of appeal, that it was intended to institute appeals pursuant to s 159 and s 159B of the National Law against the imposition of the conditions. The subsequent email correspondence between the parties confirms this view. The Applicant also applied for a stay of the decision imposing the conditions. 3. On 27 May 2021, the Applicant made an application to the Tribunal for the withdrawal of the proceedings. 4. The Medical Council of New South Wales ('the Council') has indicated that it has no objection to the withdrawal of the proceedings, and has applied for an order for costs. 5. Both parties have requested that the matter be determined on the papers. I am satisfied that the issues can adequately be determined without a hearing, on the material before the Tribunal. Constitution of the Tribunal 1. The National Law provides, in s 165B(5A): (5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a). 1. Pursuant to s 4 of the Civil and Administrative Tribunal Act 2013 (NSW), the definition of 'ancillary decision' includes 'a decision concerning the award of costs in proceedings' and the definition of 'interlocutory decision' includes 'the summary dismissal of proceedings'. 2. I have been designated as the List Manager for the Health Practitioner List pursuant to the Civil and Administrative Tribunal Act 2013 and I am therefore, presently, the 'Tribunal List Manager' referred to in s 165B(5A) of the National Law. I therefore have jurisdiction to decide the application by Dr Heckenberg for the withdrawal of the proceedings and the application by the Council for costs. 3. The National Law provides, in clause 12 of Schedule 5D: 12 Certain complaints may not be heard [NSW] (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if— (a) any of the following circumstances apply— … (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. 1. In her submissions, the Applicant says that she wishes to withdraw her appeal because the Council has referred her to a Performance Review Panel on 30 April 2021 under the National Law. Both parties submitted that the outcome of the Performance Review Panel's process will render the decision the subject of the present appeal otiose. 2. In the circumstances, I determine that it is not in the public interest for the appeal to continue and the appeal will be dismissed. Costs 1. The power of the Tribunal to award costs in relation to an appeal under the National Law is set out in clause 13(1) of Schedule 5D of the National Law. 2. The power is discretionary and must be exercised judicially. The purpose of a costs order is to compensate the successful party. Costs are not to be awarded for the purpose of penalising an unsuccessful party. As a general rule, costs should follow the event, but factors may exist which result in a costs order for only a proportion of a party's costs or, indeed, no order for costs (see Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[44] per Meagher JA). 3. The Applicant argued that, in withdrawing the proceedings, she was not capitulating, but was, in effect, acknowledging that her referral to a Performance Review Panel by the Council deprived her appeal of any practical purpose. 4. The Applicant's appeal document, as filed in the Tribunal on 1 April 2021, comprised two appeals, in substance; an appeal on the merits under s 159 of the National Law, and an appeal on points of law under s 159B of the National Law. In addition, the Applicant filed an application for a stay of the Council's decision of 9 March 2021 to impose conditions. 5. In its submissions, the Council pointed out that an appeal under s 159 of the National Law is an appeal de novo, and that, pursuant to s 159(3) of the National Law, such an appeal is to be dealt with: …by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council 1. On 30 April 2021, at the suggestion of the Council, the parties agreed with each other, in an exchange of emails, to seek an expedited hearing, to avoid the need for two hearings (one for the stay application and one for the two kinds of appeal). On the same day, at a directions hearing, a timetable was set for the exchange of evidentiary material and the filing of that material in the Tribunal. Later that day, the Council asked the Applicant for clarification as to whether the stay application would be withdrawn and whether both the s 159 and the s 159B appeals were to be pursued. 2. The Council retained counsel on 12 May 2021. 3. On 13 May 2021, the Applicant served her evidence on the Council. It included evidence which had not been before the Council when the decision appealed from was made. The Council therefore presumed, understandably, that the appeal on the merits, being the appeal under s 159, was being pursued. The Council sought clarification from the Applicant as to the nature of the appeal being pursued and whether the stay application was to be maintained on 14 May 2021. The Council reiterated that request on 19 May 2021. 4. On 20 May 2021, the Applicant's solicitors replied to the Council's request by email saying that the appeal would 'only be running' 'under section 159B' – in other words, that only the appeal on points of law would be pursued. 5. On 21 May 2021, the Council sought clarification from the Applicant's solicitors by email as to whether all of the grounds of appeal in the appeal notice were to be relied upon, and what use was to be made of the new evidence filed. The Council emailed the Applicant on 25 May 2021, seeking a response to the earlier email and raising the issue of the utility of the appeal in view of the decision by the Council on 18 May 2021 to refer the Applicant to a Performance Review Panel. 6. On 26 May 2021, the Applicant's solicitors told the Council that they had been instructed to withdraw the appeal. The Council had been due, in accordance with the timetable, to provide its evidentiary material to the Applicant and the Tribunal on or before 28 May 2021, and the hearing was listed for 3 June 2021. 7. The Council argued that it should be awarded its costs for three reasons: 1. The Applicant's withdrawal represents capitulation in the proceedings. 2. The Applicant's slowness and lack of clarity in its communication with the Council caused the Council to incur unnecessary costs in relation to aspects of the matter; namely the application for a stay, the question of the nature of the appeal and the issue of which of the grounds of appeal were being or could be pursued. 3. The notification of the change in the nature of the appeal on 20 May 2021 to confine it to an appeal under s 159B of the National Law was too late to avoid the Council incurring some of the costs of preparation of the appeal under s 159 of the National Law foreshadowed in the appeal form. 1. The Applicant argued that the withdrawal of the appeal did not represent capitulation, but was instead, a practical response to her referral to a Performance Review Panel, which would, it was submitted, render the decision the subject of the appeal otiose. 2. The Applicant argued, in effect, that by its response to the Council's suggestion that there be an expedited hearing, it implicitly indicated that it would not pursue the stay. I reject that submission. The application for a stay was not withdrawn at the directions hearing on 30 April 2021. The directions made at the directions hearing, which were made after hearing both sides, say, among other things: 6. It is noted that Meaghan Heckenberg's application for a stay and her appeal are to be heard and determined at the same hearing. 1. The Applicant argued that the time frame between being asked for clarification of her intentions by the Council on 14 May 2021 and responding on 20 May 2021 was not unreasonable and occurred 'well prior' to the hearing date. I note, however, that some of the matters which the Council sought to have clarified, such as the use of the new evidence and which grounds of appeal would be pressed, had not been clarified by the time the application to withdraw was made. 2. As to the limiting of the appeal to an appeal under s 159B of the National Law, and the implicit abandonment of the appeal under s 159 of the National Law, the Applicant submitted that this resulted from the outcome of a separate process by which she achieved the approval of some but not all of the sedationists nominated by her for her practice. This submission is not adequate to explain the apparent abandonment of the appeal on the merits against the decision to impose conditions. Consideration 1. Prior to the application to withdraw her appeal, the conduct of the Applicant's case caused the Council to incur costs which it would not have needed to incur in the event that the appeal had been pursued in the form in which it would have proceeded had it not been withdrawn. The Council's lawyers could not have competently prepared for the hearing of the matter without performing work in relation to the application for a stay and in relation to both appeals. The grounds of appeal indicated that it was intended to appeal on the merits of the decision. That inference was supported by the provision by the Applicant of new evidence. In addition, some work on behalf of the Council was necessary to seek clarification of the position. The bare statement on behalf of the Applicant, in the email on 20 May 2021 that 'we will only be running the Appeal, under section 159B', did not give the Council sufficient comfort that there would be no attempt to rely on the new evidence provided. The stay was, in fact, listed for hearing. 2. The withdrawal of the appeal does represent capitulation. However, I take account of the fact that the capitulation with respect to the appeal under s 159B of the National Law was prompted by the new referral, by the Council, of the Applicant, to a Performance Review Panel. For that reason, I will exclude the costs of the appeal under s 159B of the National Law from the order. 3. In all of the circumstances, the fairest exercise of my discretion is to order that the Applicant pay the Council's costs of this matter with respect to the application for a stay and the appeal under s 159 of the National Law, from the service of proceedings until 26 May 2021, to be agreed or assessed. Orders 1. I make the following orders: 1. Being satisfied that the issues for determination can adequately be determined in the absence of the parties by considering written submissions and other documents provided to the Tribunal, a hearing is dispensed with. 2. The appeal is dismissed. 3. Dr Heckenberg is to pay the costs of the Medical Council of New South Wales with respect to the application for a stay and the appeal under s 159 of the National Law, from the date upon which the Medical Council of New South Wales was served with this appeal until 26 May 2021, to be 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: 10 June 2021