Schwartz v Medical Board of Australia (No 2) [2021] NSWCATOD 205

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Schwartz v Medical Board of Australia (No 2) [2021] NSWCATOD 205 Hearing dates: On the papers Date of orders: 13 December 2021 Decision date: 13 December 2021 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Decision: (1) Dr Schwartz is to pay the costs of the Medical Board of Australia in this matter, in the sum of $10,000. Catchwords: OCCUPATIONS - Medical practitioners - Qualifications and registration – jurisdiction - costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Amaca Pty Ltd v Cremer [2006] NSWCA 164 KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort and Village v Chilcott [2001] NSWCA 116 Schwartz v Medical Board of Australia [2021] NSWCATOD 114 Category: Costs Parties: Dr Liliana Schwartz (Appellant) Medical Board of Australia (Respondent) Representation: A Schwartz (Agent) (Appellant) Clayton Utz Lawyers (Respondent) File Number(s): 2021/00014618 Publication restriction: Nil

REASONS FOR DECISION 1. The Medical Board of Australia ('the Board') has applied for an order for costs in its favour following the dismissal of Dr Schwartz's appeal for want of jurisdiction (see Schwartz v Medical Board of Australia [2021] NSWCATOD 114 (Schwartz)). 2. Dr Schwartz is opposed to the application for costs.

Discussion of legislative provisions regarding the power to award costs 1. The Health Practitioner Regulation National Law (NSW) ('the National Law') provides, in ss 175A, 175B and 175C, which are within Part 8, Division 14A of the National Law, which is entitled 'Appeals': 175A Parties to the proceedings [NSW] The parties to proceedings relating to an appellable decision being heard by a responsible tribunal are— (a) the person who is the subject of the appellable decision; and (b) the National Board that made the appellable decision. 175B Costs The responsible tribunal may make any order about costs it considers appropriate for the proceedings. 175C Decision (1) After hearing the matter, the responsible tribunal may— (a) confirm the appellable decision; or (b) amend the appellable decision; or (c) substitute another decision for the appellable decision. (2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision. 1. I determined in Schwartz that the decision which was sought to be the subject of the purported appeal was not an appellable decision under s 175 of the National Law. 2. In the context of Division 14A of the National Law, the phrase 'the proceedings' refers to an appeal against an appellable decision under that Division. It does not refer to a purported appeal against a decision which is not appellable under Division 14A or otherwise. 3. Section 175B of the National Law does not confer power to award costs in relation to a purported appeal which does not relate to an appellable decision under the National Law. 4. The National Law, in Schedule 5D Clause 13, provides: 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. Clause 13 of Schedule 5D gives the Tribunal power to award costs to any person entitled to appear 'at an inquiry or appeal before the Tribunal'. 2. The proceedings the subject of this decision were not 'an inquiry or appeal before the Tribunal'. The proceedings were a purported appeal, over which the Tribunal had no jurisdiction. Clause 12 of Schedule 5D of the National Law does not confer power upon the Tribunal to award costs to a person entitled to appear at an inquiry or appeal before the Tribunal. 3. The effect of clause 13(4) of Schedule 5D of the National Law is that clause 13 covers the field in relation to the award of costs to a person entitled to appear at an inquiry or appeal before the Tribunal under the National Law. 4. The proceedings in Schwartz, however, did not comprise an inquiry or appeal under the National Law. For that reason, s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act') is not displaced. 5. The CAT Act, in s 60, provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following— (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may— (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section— costs includes— (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. The CAT Act, in s 60(e) contemplates that the power to award costs will apply to proceedings which are 'misconceived or otherwise lacking in substance', a description which includes proceedings which seek a decision which is beyond the jurisdiction of the Tribunal. 2. In Amaca Pty Ltd v Cremer [2006] NSWCA 164, McColl JA, with whom Basten JA and Brereton J agreed, said, in considering s 12B of the Dust Diseases Tribunal Act 1989, at [75]-[77]: 75 It is clear that "[t]he word 'proceedings' is one of great generality" and "takes its precise meaning from the context in which it appears" Clarence v Electricity Commission of New South Wales (1990) 20 NSWLR 1 (at 4) per Kirby P, citing Quazi v Quazi [1980] AC 744 (CA); 800 (HL) at 808, 809 and 811-812. In Blake v Norris (1990) 20 NSWLR 300 (at 306) Smart J observed that Stroud's Judicial Dictionary, 5th ed, vol 4 at 2029-2035 gave "some fifty-five instances … of the use of the words 'proceeding' or 'proceedings' in legislation, rules of court or documents having legal significance". 76 The jurisdiction the Tribunal exercises is, in effect, the common law jurisdictions of the Supreme and District Courts vested in it by s 10 which gives the Tribunal jurisdiction to "hear and determine proceedings" referred to in ss 11 and 12. While the Act is beneficial in nature, nothing indicates that words in it referring to the invocation of the jurisdiction which would otherwise be exercised by those courts, are used other than in their primary sense as terms of legal art: see Herbert Berry Associates Ltd v Inland Revenue Commissioners [1977] 1 WLR 1437 (at 1446) per Lord Simon of Glaisdale (with whom Viscount Dilhorne, Lord Morris of Borth-y-Gest and Lord Scarman agreed). 77 The word "proceedings" ordinarily refers to the "method permitted by law for moving a court or judicial officer to some authorised act" (Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 (at 536-537) per Isaacs and Gavin Duffy JJ), or "any application by a suitor to a court in its civil jurisdiction for its intervention or action" (Cheney v Spooner at 538-539, per Starke J) or to "the invocation of the jurisdiction of the court by process other than writ" (Herbert Berry Associates Ltd v Inland Revenue Commissioners at 1446). 1. In KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort and Village v Chilcott [2001] NSWCA 116, Sheller JA and Ipp AJA, with Grove AJA agreeing, cited with approval authorities giving a wide meaning to the word 'proceedings' and said, at [30]: 30 Although it is now accepted that the District Court had no jurisdiction to hear and dispose of the respondent's action, inevitably any application by the appellant to have the action struck out or dismissed would have been in the District Court and can only have been in the proceedings themselves. It would be fanciful to suggest that separate proceedings should have been begun. Clearly enough, the District Court has the implied authority to ensure that justice is administered by striking out or dismissing the action. If a court has no jurisdiction to hear and dispose of a claim brought before it, any order the court makes which proceeds on the basis that the court does have jurisdiction is null, but an order that proceeds on the basis that the court does not have jurisdiction, such as an order striking out or dismissing the claim for want of jurisdiction, is effective. 1. I determine that the word 'proceedings' in s 60 of the CAT Act 2013 is intended to encompass matters brought before the Tribunal by a party in relation to which, it is then determined, the Tribunal has no jurisdiction. 2. The Tribunal accordingly has power, under s 60 of the CAT Act 2013, to award costs in matters such as the present matter if there are special circumstances warranting an award of costs. Relevant to the question of whether there are special circumstances, under s 60(3), is a determination that the proceedings are misconceived or lacking in substance. 3. I am satisfied that special circumstances within the meaning of s 60(2) exist in this matter, in that the proceedings instituted by Dr Schwartz were misconceived, as they were an attempt to seek a merits review of an administrative decision in relation to which no right of review or appeal was provided for by the National Law or any other legislation. 4. The Board has been compelled, in this matter, to expend resources in resisting a purported appeal in relation to which the Tribunal had no jurisdiction. It was successful in having the purported appeal dismissed on that basis. An entirely successful party resisting an appeal or application in relation to which the Tribunal has no jurisdiction should have its costs under s 60(2).