Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Govan (No 2) [2022] NSWCATOD 108 Hearing dates: On the papers Date of orders: 16 September 2022 Decision date: 16 September 2022 Jurisdiction: Occupational Division Before: Coleman SC ADCJ Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal dispenses with an oral hearing of the present application. (2) The Respondent is ordered to pay the Applicant's costs of and incidental to the substantive proceedings and this application as agreed or assessed on a party and party basis. Catchwords: COSTS- where applicant successful in substantive proceedings- whether costs should follow the event Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) 2009 Cases Cited: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Murray Govan (Respondent) Representation: Health Care Complaints Commission (Applicant) Peter Neil (Enduring Power of Attorney) (Respondent) File Number(s): 2021/00050764 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On 22 December 2021 the Tribunal ordered, pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) (National Law) that the registration of the Respondent as a medical practitioner be cancelled, that, pursuant to s 149C(5) of the National Law, the Respondent be prohibited from providing health services until the expiration of a period of five years from the date of cancellation of his registration, and that, pursuant to s 149C(7) of the National Law the Respondent not make an application for review of the order cancelling his registration until the expiration of a period of five years from the date of cancellation of his registration. The Tribunal also ordered that the Applicant's costs of the proceedings be reserved and made directions for the filing of written submissions with respect to that issue. 2. On 14 July 2022, the Tribunal's original directions with respect to the filing of submissions in relation to costs were amended to provide that, by 15 July 2022 the Respondent file and serve any submissions in opposition to the making of an order that the Respondent pay the Applicant's costs of the proceedings as agreed or assessed on a party and party basis. 3. On 7 July 2022 Mr Peter Neil, who stated that he continues to hold an Enduring Power of Attorney for the Respondent, filed written submissions opposing any order that the Respondent pay the Applicant's costs of the proceedings. Mr Neil's position is analogous to that of an "adviser" representing the Respondent by leave pursuant to s 165J of the National Law. The Applicant has not taken objection to his continued representation of the Respondent. 4. On 28 July 2022 the Applicant filed submissions in support of its application for costs and in response to the submissions on behalf of the Respondent. 5. Neither party opposed the costs dispute being determined on the papers and without an oral hearing. Jurisdiction 1. Although not disputed, the source of the power to determine the present application is not identified in the submissions of either party. 2. Clause 13 of Schedule 5D to the National Law provides the power of the Tribunal to award costs. Clause 13(1) provides that the Tribunal may order a health practitioner at an "inquiry or appeal before the Tribunal" to pay the costs to another person as decided by the Tribunal. Clause 1(2) of Schedule 5D provides that a reference in Schedule 12D "however expressed" to proceedings before the Tribunal "is a reference to proceedings before the Tribunal under this law". 3. Section 165B of the National Law is concerned with the "constitution of Tribunal for complaints, applications and appeals". Section 165B(5A) provides that, when constituted to make an "ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013" (CAT Act) the Tribunal is to be constituted by the Tribunal List Manager or, relevantly for present purposes, a member who, pursuant to s 165B(2)(a) is a "senior judicial officer". "Senior judicial officer" is defined in s 165(b) of the National Law to include a judge of the District Court. Section 4(1)(b) of the CAT Act provides that "a decision concerning the awarding of costs" is an ancillary decision. 4. The Tribunal is satisfied that, as presently constituted, it has jurisdiction to determine the Applicant's costs application. Dispensing with a hearing 1. Neither party has suggested that there should be an oral hearing of the present application. It is nevertheless necessary to make findings pursuant to s 50(2) of the CAT Act in order to dispense with a hearing. 2. The Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions filed by them. Other than increasing costs which may ultimately be payable by the Respondent, an oral hearing would serve no useful purpose in the present circumstances. 3. The Tribunal is satisfied that, pursuant to s 50(3)(a) the parties have been afforded an opportunity to make submissions about the proposed order. No submissions having been made, no occasion for taking them into consideration pursuant to s 50(3)(b) arises. Submissions on behalf of the Respondent 1. On 7 July 2022, Mr Neil forwarded submissions to the Tribunal and the Applicant purportedly on behalf of the Respondent. Mr Neil appeared with the Respondent during the hearing of the proceedings, and made statements and submissions on his behalf, neither of which was on oath or affirmation. The Respondent, who was incarcerated at the time of the hearing, also made statements and submissions during the hearing, also not on oath or affirmation. Although there is no reason to doubt that Mr Neil has authority to make submissions on behalf of the Respondent, no explanation for the failure of the Respondent himself to make any submissions has been proffered. 2. Mr Neil reiterated in his submissions a number of the matters which he asserted on behalf of the Respondent during the hearing of the substantive proceedings in 2021. Although there is no evidence of it before the Tribunal, it is likely that, as Mr Neil submits, the Respondent's life has "been irrevocably changed in the circumstances he finds himself in". There is no doubt that any such circumstances are of the Respondent's own making. 3. Mr Neil asserted that the decision prohibiting the Respondent from practising health services for a period of five years, "following a three year period of non-practice due to his incarnation [sic], is harsh in the extreme. Particularly when Dr Govan had performed health care services in an exemplary manner for ... years prior, makes it extremely problematical for Dr Govan to earn a living in health care in which he is well qualified, or in fact earning a living in any activity". 4. There has been no appeal against the protective orders made against the Respondent. As the reasons for the substantive decision make clear, both in the District Court in the course of being sentenced for serious criminal offences, and before the Tribunal at the hearing of the substantive proceedings, the Respondent did not dispute any allegation of material fact with respect to his offending conduct. The Respondent's offending conduct was pivotal to the decision of the Tribunal in the substantive proceedings. 5. Whilst, clearly, if legally able to do so, it would be problematic for the Respondent to earn a living in health care for some years, there is no evidence before the Tribunal of any efforts by the Respondent, since his release from incarceration in January of this year, to earn a living "in any activity". 6. Whilst it is likely, the Respondent having been deported from Australia to New Zealand pursuant to the provisions of the Migration Act 1960 (Cth), and is likely to be, properly, subject to supervision orders in New Zealand, there is no evidence before the Tribunal with respect to the terms of those orders, or of any legal restraints on the Respondent's ability to earn a living in areas unrelated to the provision of health care services. 7. It was submitted that the Respondent's financial position was dire, in that he has lost his matrimonial home, his investment land, his medical practice, his livelihood and ability to practice medicine and has no income, nor any immediate prospects of earning an income. There is no evidence before the Tribunal with respect to any of those matters, other than with respect to the Respondent's loss of his medical practice and ability to practice medicine. 8. Somewhat counterintuitively, it was submitted on behalf of the Respondent that he would not be able to meet any order against him for costs, notwithstanding which, any order would "place more strain on him". It was submitted, without medical or other evidence in support of it, that the Respondent was "already in a fragile mental state". It was further submitted that "any order to pay the Commissioners [sic] costs could not be met and any enforcement of such an order would result in personal bankruptcy for no good reason". There is no evidence of the Respondent's current financial or other circumstances before the Tribunal. Submissions on behalf of the Applicant 1. In support of its claim for costs, the Applicant referred to the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342, in which the exercise of the discretion with respect to costs was considered. It is appropriate to refer in some detail to the matters to which the Court of Appeal there referred at [42] to [46]. 2. The Court of Appeal held [42] that, "As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule". The Respondent has adduced no evidence of "impecuniosity". 3. The Court identified [42] whether the Commission "failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct" as a matter which "might militate" against the Commission recovering all of its costs. In the substantive proceedings, the Applicant was wholly successful in securing the findings it sought with respect to the conduct of the Respondent. 4. Similarly, the Applicant in this case did not fail to establish any of the particulars of professional misconduct alleged by it. In those circumstances no consideration of the lack of success with respect to "discrete elements of the conduct complained of" could be taken into account in favour of the Respondent in the manner discussed by the Court of Appeal, at [42]. 5. In this case there was not a hint of "oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal". The proceedings were conducted competently, and with appropriate restraint having regard to the fact that the Respondent had no legal representation and had to conduct his case from the penitentiary in which he was incarcerated. No procedural steps taken by the Applicant gave rise to unnecessary expense in preparing for the hearing before the Tribunal, quite apart from the reality that the Respondent did not incur any costs. The Applicant conducted the proceedings thoroughly but fairly and consistent with the obligation to conduct proceedings in a manner that was just, cheap and quick. 6. The discretion with respect to costs is undoubtedly, as the Court of Appeal reiterated in Philipiah, at [43] to be exercised judicially, and according to "proper fixed principles and rules of reason and justice, and not according to private opinion". Importantly for present purposes, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer [1974] 2 NSWLR 91 at 95). As noted earlier, in numerous and significant respects, the submissions on behalf of the Respondent are not supported by any evidence before the Tribunal. 7. As is not in doubt, an award of costs is intended to compensate a successful party and not to penalise an unsuccessful party, although that is often the practical effect of such an award (Philipiah, at [44]). 8. In Philipiah the Court of Appeal held, at [44] that "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", it being clear that their Honours were referring to the exercise of the discretion to decline to award costs when the discretion to award costs is enlivened. 9. As is not in doubt, the Applicant was wholly successful in terms of the primary relief sought by it and overwhelmingly successful in terms of the prohibition orders which it sought. In Philipiah the Court of Appeal noted, at [45] that the Respondent "could have made admissions as to professional misconduct" after being notified of the complaints but "chose not to do so". Their Honours observed that: "The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner." 1. Although, with respect to them, the Respondent and Mr Neil put up what could fairly be described as token resistance to the Applicant's case, at no time were any admissions made which obviated the need for the Applicant to diligently prosecute its case. 2. In Philipiah the Court of Appeal recorded, at [46] that the fact that the practitioner "has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him". Although, by reason of his incarceration, the Respondent was able to make only limited efforts to overcome his personal difficulties prior to the decision in the substantive proceedings, there is no evidence before the Tribunal with respect to his post-incarceration circumstances, much less of any attempts he has been making to address his personal circumstances, or do anything else of an altruistic nature which might incline the Tribunal to have some sympathy for him with respect to the costs of the proceedings. 3. There is no evidence of any "disentitling conduct" by the Applicant which would militate against making an order for costs in its favour (Oshlack v Richmond River Council [1998] HCA 11: (1998) 193 CLR 72, at [40]). 4. The Tribunal is satisfied that the Respondent has been afforded procedural fairness with respect to the Applicant's costs application. If, although there is no reason to doubt that Mr Neil has been authorised to make submissions on his behalf, the Respondent has no knowledge of the current proceedings, and has thus had no opportunity to put forward any evidence or submissions in opposition to the present application, having those opportunities would, in the circumstances of this case, have changed nothing. That is because, the matters to which Mr Neil referred, if the subject of evidence and submissions on behalf of the Respondent, would not, having regard to the principles governing the present application, have produced a different outcome (Stead v State Insurance Commission [1986] HCA 54; (1986) 161 CLR 141). Disposition 1. The Tribunal agrees, essentially for the reasons submitted on behalf of the Applicant, that it is appropriate to make an order for costs in its favour. Orders 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal dispenses with an oral hearing of the present application. 2. The Respondent is ordered to pay the Applicant's costs of and incidental to the substantive proceedings and this application as agreed or assessed on a party and party basis. ********** 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 September 2022