Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v McAlpine (No 2) [2022] NSWCATOD 119 Hearing dates: By written submissions received 6 September 2022 and 27 September 2022 Date of orders: 17 October 2022 Decision date: 17 October 2022 Jurisdiction: Occupational Division Before: The Hon Jennifer Boland AM, Deputy President Decision: David McAlpine is to pay the costs of the Health Care Complaints Commission of and incidental to the proceeding as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: COSTS – Party/Party – Tribunal's discretion. Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW). Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Kahli Michelle Bard [2013] NSWNMT 15 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Highland v Labraga (No 3) [2006] NSWSC 871 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Consequential orders Parties: Health Care Complaints Commission (Applicant) David McAlpine (Respondent) Representation: Counsel: Solicitors: Health Care Complaints Commission (Applicant) AEN Legal (Respondent) File Number(s): 2021/00358528 Publication restriction: Nil REASONS FOR DECISION Introduction 1. These reasons are in respect of competing costs applications. The Health Care Complaints Commission (HCCC) seek an order for its costs incurred in disciplinary proceedings brought against David McAlpine, who for convenience only, I will refer to as "the practitioner.". The practitioner seeks orders that each party pay their costs of the proceedings. 2. For the reasons which follow, I have determined that the practitioner should pay the HCCC's costs as agreed and failing agreement as assessed. The proceedings 1. On 17 December 2021 the HCCC commenced proceedings in the Tribunal for disciplinary findings and orders against the practitioner under the provisions of the Health Practitioner Regulation National Law (NSW) (the National Law). A directions hearing was held on 4 February 2022 and the matter was listed before the Tribunal (the Hon Jennifer Boland AM, Deputy President, M Smith, Senior Member, C Hutchins, Senior Member and Dr C Berglund, General Member) on 23 May 2022. 2. On 4 February 2022 at the conclusion of the directions hearing I noted that the practitioner consented to the making of orders set out in paragraph 1 and 2 of the application (cancellation of the practitioner's registration, a non-review period of one year and a prohibition order). 3. Following the hearing on 23 May 2022 the Tribunal reserved its decision and published reasons on 17 August 2022. At the hearing the practitioner through his solicitor requested an opportunity to be heard on the question of costs and the orders made on 17 August 2022 provided an opportunity for the parties to file written submissions on the question of costs. The relevant statutory provisions. 1. Section 165B(5A) of the National Law provides that the List Manager or the person presiding may determine an ancillary application (as defined in the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) 2. Section 4 of the NCAT Act defines an ancillary decision as follows: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including— (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. 1. Clause 13 of Schedule 5D of the National Law deals with costs. It 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. Authorities on costs in health disciplinary proceedings. 1. In the Tribunal's reasons at [97] the comments of Emmett JA in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] are set out. It is useful I repeat those comments in these reasons as well as his Honour's further comments at [43]-[44]: 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. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, 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). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. 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. 1. Also relevant on the exercise of discretion is the decision in Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85], and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. See also Health Care Complaints Commission v Kahli Michelle Bard [2013] NSWNMT 15 at [159]-[160]. The HCCC's submissions 1. After referring to the relevant statutory provisions and authorities on costs, at para 10 of its submissions, the HCCC acknowledge that the practitioner consented to the orders sought by the HCCC and that this shortened the hearing time. However, it is observed that the practitioner did not admit the subject matter of the complaint and accordingly s 165J of the National Law did not apply and the Tribunal was required to conduct an inquiry into the complaint. 2. It is further submitted that the HCCC was almost wholly successful in its application and that there was no conduct in this matter which would warrant departure from the usual rule. 3. The HCCC seeks an order for costs as agreed or assessed. The practitioner's submissions 1. Having referred to the HCCC's submissions, the arguments advanced on behalf of the practitioner are enunciated on three bases. 2. First, is it is submitted the practitioner "adopted a submitting position in the proceedings save on the question of costs". It is noted by reference to Highland v Labraga (No 3) [2006] NSWSC 871 at [23] that normally a "submitting party who genuinely takes no part in the proceedings will not be ordered to pay costs". 3. I observe that in Highland Young CJ in Equity noted the following: 22 Ritchie's Uniform Civil Procedure in note 6.11.5 quotes the Develtor Property Group case as authority for the proposition that "A submitting party will not ordinarily be liable in respect of costs incurred after filing the submitting appearance". Again, semantic significance must be given to the word "ordinarily". 23 In a case where a defendant has been named as a proper party, but genuinely takes no part in the proceedings and files a submitting appearance, then almost certainly no order for costs will be made against it. 1. It is argued that the fact the practitioner did not address the particulars of the complaint should not be taken into account because he relied on his right against self-incrimination. 2. Secondly, it is argued that the HCCC did engage in "disentitling" conduct because it did not serve material on which it sought to rely by 11 March 2022 but served its material on the practitioner on 24 March 2022 and did not approach the Tribunal to vary the orders made. The submissions very fairly note that the practitioner does not suggest he was prejudiced by the delay but rather a party seeking to benefit from the exercise of discretion should ensure that they have complied with orders of the Tribunal. 3. Thirdly, it is submitted that reliance by the decision in Philipiah is distinguishable in the circumstances of this case because the practitioner advised the HCCC early of his submission to the orders sought in the application. Consideration 1. I have taken into account in determining this application that the proceedings were necessitated by the conduct of the practitioner which the Tribunal found at [75] to be grossly improper and unethical involving a particularly vulnerable patient. 2. I have further taken into account that the practitioner chose not to attend the hearing or to adduce any evidence demonstrating insight or remorse for his actions. I note that he could have sought a certificate under s 128 of the Evidence Act 1995 if compelled to answer questions in cross-examination. 3. I am satisfied that the practitioner's position cannot be considered a wholly submitting one having regard to the nature of his Reply. 4. The Tribunal was unable to dispense with an inquiry into the complaint under s 165H of the National Law because, although the practitioner consented to the orders sought, except costs, he chose not to address any of the particulars of the complaint. This necessitated the HCCC providing detailed written submissions in which the evidence relied on to establish a particular was set out. Ultimately, the HCCC was wholly successful in the orders sought and ultimately made. 5. I have had careful regard to the submission that the HCCC's conduct in the late filing of its material is disentitling conduct. There is some merit in that submission, and I note the requirements of s36(3) of the Civil and Administrative Tribunal Act and in particular the obligations on parties as set out in that provision. I am conscious that there is no evidence before me about when material was served, but that is not determinative of my conclusions. I observe however the practitioner does not suggest any procedural unfairness by the late service of the HCCC's material. While that departure from the directions made without the HCCC seeking an extension of time is regrettable, I am not satisfied it is of such gravity that it warrants a departure from the general rule in respect of costs. 6. Overall, I am satisfied in the exercise of discretion that the HCCC is entitled to an order for its costs, and I will so order. orders 1. David McAlpine is to pay the costs of the Health Care Complaints Commission of and incidental to the proceeding as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** 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: 17 October 2022