Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Livermore [2021] NSWCATOD 115 Hearing dates: On the papers Date of orders: 16 August 2021 Decision date: 16 August 2021 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Decision: Mrs Livermore is to pay the Commission's costs as agreed or as assessed. Catchwords: PROFESSIONS AND TRADES – Costs – no question of principle – fixed sum costs order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 4 Health Practitioner Regulation National Law (NSW) cl 13 of Sch 5D Cases Cited: Australia and New Zealand Banking Group Limited v Giannaklis (No 3) [2020] NSWSC 1271 Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Shipley (No 2) [2020] NSWCATOD 148 In the matter of Mosman & Co Pty Limited [2020] NSWSC 1245; and Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930 Kiwi Munchies Pty Ltd v Stern [2006] NSWSC 433 Leary v Leary [1987] All ER 261 Lucire v Health Care Complaints Commission (No 2) [20111 NSWCA 182 NSW v Stanley [2007] NSWCA 330 Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 9) [2018] NSWSC 1657 Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87] Singh v Medical Council of NSW (No 2) [2015] NSWGATOD 28 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 Category: Costs Parties: Health Care Complaints Commission (Applicant) Nelvi Livermore (Respondent) Representation: Solicitors: Mr F Shah (Applicant) Ms M Arndell (Respondent) File Number(s): 2020/00271430 Publication restriction: The Tribunal made an order pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the disclosure to any person or entity of the names, addresses or any other identifying information of any person referred to as a Patient in the evidence in the proceedings. REASONS FOR DECISION Summary 1. This matter was heard on 7 April 2021, and reasons published on 23 April 2021: Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 (the Decision). 2. For the reasons set out in the Decision, we cancelled Mrs Livermore's registration as a nurse, and further ordered that she may not make an application for review that order for a period of six months from that date. 3. At the conclusion of the Decision we stated: 74. The Commission sought an order for costs, which order was not opposed by Mrs Livermore. There was some discussion at the conclusion of the hearing that a special costs order might be sought by the Commission, namely a gross lump sum costs order. 75. We propose to make an order that Mrs Livermore pay the Commission's costs as agreed or as assessed. If either party seeks some other order, it should do so within seven days of these reasons, such submissions being limited to three pages in length. The other party may respond within a further seven days. 76. If it becomes necessary to consider whether or not to make some other costs order, the Tribunal proposes to do so "on the papers". If either party opposes that course, they should address that matter in their submissions. 77. However, we are confident that the common sense of the parties will lead to an agreed conclusion without any further intervention of the Tribunal. 1. Submissions were subsequently received from both parties. Commission's submissions 1. The Commission sought an order that it be paid a fixed sum costs order in the amount of $12,000 by the respondent. 2. In relation to the relevant principles, the Commission submitted that: 1. it may be appropriate to make a gross sum costs in cases where there would be utility in "cutting the Gordian knot" of protracted fights about costs: Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [8]; Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930 at [5]; 2. where the amount in issue is a modest sum and it would not be appropriate to require a further process of assessment to be undertaken: Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [8]; and Kiwi Munchies Pty Ltd v Stern [2006] NSWSC 433; 3. where the costs assessment is likely to be a protracted and expensive exercise and the other party is unlikely to pay: see Leary v Leary [1987] All ER 261 at 266; 4. a 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: Health Care Complaints Commission v Shipley (No 2) [2020] NSWCATOD 148 and Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 9) [2018] NSWSC 1657; 5. ordering fixed costs would obviate further legal costs for the applicant and is particularly apposite in circumstances where it is or may be unlikely that a respondent will be able to meet the liability of the order in any event, or the costs of any assessment that may ultimately need to be undertaken if costs were to be assessed: Australia and New Zealand Banking Group Limited v Giannaklis (No 3) [2020] NSWSC 1271; 6. to require the successful party to be further aggravated by having to fund the additional costs of taxation, those costs also being unrecoverable, is a relevant consideration: Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 at [21]; 7. ordering fixed costs brings about finality to the proceedings and is also a relevant consideration where costs are disputed: Pham v Enterprise ICT Pty Ltd and Others; Pham v Sebie (No. 9) [2018] NSWSC 1657; 8. if the Tribunal is persuaded to make a fixed sum costs order then it may adopt a broad-brush approach to the sum: In the matter of Mosman & Co Pty Limited [2020] NSWSC 1245; and Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22]. 1. The Commission included recent correspondence between the parties relating to costs and what was described as the Commission's "bill of costs to date", indicating a total billable costs figure of $13,584.79. Mrs Livermore's submissions 1. In summary, Mrs Livermore's primary submission was that "that notwithstanding any practice of the Tribunal and/or the Commission to allow the Commission its costs following determination of disciplinary proceedings, the Commission has no entitlement to costs". 2. Her secondary submission was that, if a costs order was to be made, a costs order in a fixed amount should not. She submitted that there was insufficient evidence before the Tribunal to warrant an order in the amount sought. Power to make costs order 1. The Tribunal's power to make a costs order is found in cl 13 of Sch 5D to the Health Practitioner Regulation National Law (NSW) (National Law). That clause provides as follows: 13 Tribunal may award costs [NSW] (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. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. 1. This application is being determined by me pursuant to s 165B(5A) of the National Law. That provision is in the following terms: 165 Constitution of Tribunal for complaints, applications and appeals [NSW] … (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. I note that s 4 of the Civil and Administrative Tribunal Act 2013 (NSW) defines an ancillary decision to be a decision that is: "…preliminary to, or consequential on, a decision determining proceedings, including … (b) a decision concerning the awarding of costs in proceedings." Consideration 1. There are two issues to determine. The first is whether the Tribunal should make any order as to costs 2. The Tribunal was surprised that Mrs Livermore now opposes an order for costs. At the hearing, through her counsel, she accepted that an order she pay the Commission's costs was appropriate. The Tribunal is entitled to act on submissions made to it by legal representatives acting on the instructions of their clients. 3. Nevertheless, we will consider Mrs Livermore's changed position on its merits. 4. The submission that the Commission has no entitlement to costs is fundamentally flawed. 5. The submission that there is no evidence that the Commission has a legal liability to pay costs, and that the Commission could not be satisfied there is any such liability, is misconceived. 6. As noted, the Tribunal has a discretionary power to make an order for costs under cl 13 of Sch 5D of the National Law. 7. The authorities are clear on this issue. In applying the provisions of cl 13, the general rule is that costs follow the event and that costs are intended to compensate the successful party, absent any disentitling conduct: Philipiah [2013] NSWCA 342 at [42]; Lucire v Health Care Complaints Commission (No 2) [20111 NSWCA 182; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87]; Singh v Medical Council of NSW (No 2) [2015] NSWGATOD 28 at [45]. 8. The onus is on the other party, here Mrs Livermore, to establish a basis for any departure from this usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]). 9. The Tribunal is not satisfied that there is any such justification. 10. In the circumstances, Mrs Livermore must pay the Commission's costs. 11. The second issue is whether or not a fixed costs order should be made. 12. Mrs Livermore submits that the only evidence before the Tribunal is a four-page document apparently purporting to be a record of work performed by persons apparently employed by the Commission. She submits that there is no evidence of the hourly rate charged by the Commission's solicitors, and no evidence upon which the Tribunal could be satisfied that any of the work performed was reasonable in the absence of any explanation for the work performed. Nor is there any evidence of any Costs Agreement between the Commission and its counsel, and there is no evidence as to her invoice or the basis of her charges. 13. The Tribunal considers that the Commission's statements of principle are correct. However, it is not persuaded that a sufficient basis bas been demonstrated for the making of a fixed costs order. 14. The principal, indeed only, basis on which the order was sought was that: "[Mrs Livermore] has been put on notice by the Commission of the amount sought and has also rejected an opportunity to reduce that sum by negotiation. The respondent through her solicitors also rejects her obligation to pay the Commission's costs at all, a position which the Commission rejects and has conveyed to [Mrs Livermore] through the attached correspondence, in particular [Mrs Livermore's] reliance on Bell v Pentelow [2019] HCA 29. …" 1. While there is some evidence of a reluctance of Mrs Livermore to pay any costs (being the opposite position to the one she adopted at the hearing), the Tribunal is not satisfied that a fixed costs order should be made. 2. As the Appeal Panel stated in 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 at [45] (references omitted): "Tribunal Members should not generally be encouraged to carry out the work of costs assessors by making fixed sum costs orders. The circumstances most likely to arise in the Tribunal where it might be appropriate for the Tribunal itself to assess costs will usually be where the costs are very modest and the assessment is simple. This might be the case, for example, where the parties are self-represented and not entitled to recover work done in preparing their case, and the only recoverable costs are the filing fee and other small, non-contentious out of pocket expenses". Orders 1. The Tribunal orders that: 1. Mrs Livermore is to pay the Commission's costs as agreed or 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 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 August 2021