Ghobashy v Medical Board of Australia (Costs) [2022] NSWCATOD 145

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ghobashy v Medical Board of Australia (Costs) [2022] NSWCATOD 145 Hearing dates: On the papers Date of orders: 16 November 2022 Decision date: 16 November 2022 Jurisdiction: Occupational Division Before: Le Poer Trench ADCJ, Principal Member. Decision: 1 The Appellant is to pay the Respondent's costs of the appeal, as agreed or as assessed. Catchwords: HEALTH – medical practitioners – disciplinary proceedings –costs order following appeal. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA Qasim v Health Care Complaints Commission [2015] NSWCA 282 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 111 Texts Cited: Nil Category: Costs Parties: Waleed Ghobashy (Appellant) Medical Board of Australia (Respondent) Representation: Solicitors: King and Wood Mallesons (Respondent) Appellant (Self-represented) File Number(s): 2022/00107469 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication of the name of any person identified as a patient or former patient of the Respondent.

reasons for decision 1. On 10 October 2022, this Tribunal made orders dismissing the appeal brought by Dr Waleed Ghobashy and ordered the parties to file and serve submissions in relation to the question of costs. Both parties have filed submissions addressing the question of costs. 2. The Respondent seeks the following order: * The Appellant pay the Respondent's costs of the appeal, on an ordinary basis, as agreed or as assessed". 1. The Appellant seeks that the Tribunal make no order for him to pay the costs of the Respondent. 2. The Respondent is the Medical Board of Australia and the Appellant is Waleed Ghobashy. 3. Section 175B of the Health Practitioner Regulation National Law (NSW) (National Law) provides as follows: "The responsible tribunal may make any order about costs it considers appropriate for the proceedings." 1. In the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA at [42]-[46] the Court set out: "42. 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. 43. 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). 44. 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. 45. The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. 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. 46. The fact that the Doctor 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. In all of the circumstances, I consider that the exercise of the discretion on the part of the Tribunal miscarried. The direction made by the Tribunal that there should be no order as to costs should be set aside." 1. The Court of Appeal decisions in Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51] also address the awarding of costs in proceedings under the National Law. The Respondent in this matter referred the Tribunal to the decision in Health Care Complaints Commission v Do [2014] NSWCA 307 at [50], per Meagher JA (with whom Basten and Emmett JJA agreed), where his Honour observed that s 175 is a provision having national operation and should not be subject to local rules. "It should, therefore, be treated as conferring an unfettered discretion on the Tribunal". 2. The Respondent submitted: "The proceedings constituted an appeal for the purposes of clause 13(1) of Schedule 5D of the National Law. In applying the provisions of clause 13, the general rule is that costs follow the event, and are intended to compensate the successful party, in the absence of any disentitling conduct. See Health Care Complaints Commission v Philipiah [2013] NSWCA 342 ("Philipiah"). The onus is on the Appellant, as the unsuccessful party, to establish a basis for any departure from the usual rule (Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 111 at [10]). The Respondent submits that there could be no such justification. The Respondent was wholly successful in these proceedings. Prima facie, having regard to the principles discussed above, the Respondent is entitled to a costs order in its favour. Further, there is no conduct of the Respondent that would disentitle it to a costs order or factors that might militate against the Respondent being awarded its costs. 3. To the extent that it is suggested by the Appellant that the Respondent should not have its costs because he will be unable to meet any costs order made against him, that submission should be rejected. The mere impecuniosity of the unsuccessful party does not provide sufficient reason for departing from the usual rule ("Philipiah"). 4. Similarly, the fact that the Appellant was unrepresented before the Tribunal is no answer against the award of costs in the Respondent's favour. The Respondent had suggested to the Appellant, in its letter to him of 31 March 2022 notifying him of its decision the subject of these proceedings, that he may wish to apply for a lower position, with a higher level of supervision. The Appellant ignored this invitation and chose to commence these proceedings, which ultimately took four hearing days, instead of the one hearing day that had initially been scheduled, at considerable cost to the Respondent. 5. The Appellant provided his submission dated 7 November 2022. He sought an order that the Respondent pay his costs. As a self-represented litigant, the Tribunal has not been made aware of any legal costs which the Appellant could have incurred. Notwithstanding that circumstance, we proceed to determine his application and also understand that he opposes the order sought by the Respondent. 6. The Respondent in his submission sought to rely on a communication from the Medical Boards solicitors of 17 May 2022 which informed him the Medical Board would consider an application by the Appellant for Resident Medical Officer (RMO) with Level 1 Supervision (Limited Registration). The Appellant was clearly affronted with such a suggestion as he had held positions at Registrar level in Australia. 7. The Appellant argued that the Respondent had been unsuccessful in the determination of the Tribunal because it had considered (at 282) he would be suitable for positions which might be offered as Registrar with Level 1 or Level 2 supervision. Although the Tribunal did consider Level 1 or Level 2 supervision would be appropriate for the Appellant, it did not state that would be for a Registrar position. I accept that it is reasonable for the Appellant to consider the reference was to a Registrar position as that was the position he had applied for at Armadale Hospital. 8. The Appellant submits that the offer made by him to the Medical Board (email 6 February 2022 at page 209 of 475 in exhibit A in the hearing) to apply for a position as a Registrar with level 2 supervision with 3 monthly reports to the Medical Board was refused. He submits the Tribunal had indicted in paragraph 282 of its judgment, that had that been the application before the Tribunal it would have been successful. 9. The argument by the Appellant is really not capable of action in this costs decision because it was not open to the Tribunal to have made any order other than to uphold the appeal he had pursued before us or dismiss same. In order for the Tribunal and/or the Medical Board to consider the granting of a Limited Registration to the Appellant for a Registrar Level 2 supervision it would be necessary for him to have an offer of employment at that level of supervision. The position available at Armadale Hospital was for a Registrar with Level 3 supervision requirement. As seen in the reasons the Tribunal delivered on 10 October 2022, there is a very considerable difference in the levels of supervision between Level 2 and Level 3. 10. The Appellant said that he had been without clinical experience since August 2020. He has been without financial support for two years. He has a family and his partner is without work at this time. The Appellant had represented himself in the hearing as he could not afford to engage lawyers to appear for him. 11. The Appellant submitted that to apply for Limited Registration the Medical Board requires that he pay an Application fee and a Registration fee which cost him $1,622 on the last occasion. Those fees were lost because his Application was refused by the Medical Board. 12. The Appellant submitted that if he is required to pay the costs of the Respondent he will need to have the payment postponed until he can obtain employment. We note the arrangement for the payment of any costs awarded in this determination is a matter to be negotiated between the Appellant and the Respondent. Although we consider the Appellants request for time to pay any order is probably a reasonable request, it is not something which we could require the Respondent to agree to. 13. I accept that Do and Qasim both address the awarding of costs in proceedings under the National Law. I accept that s175B "should, therefore, be treated as conferring an unfettered discretion on the Tribunal". I also accept that, as submitted by the Respondent : "In applying the provisions of clause 13, the general rule is that costs follow the event, and are intended to compensate the successful party, in the absence of any disentitling conduct. See Health Care Complaints Commission v Philipiah [2013] NSWCA 342 ("Philipiah"). The onus is on the Appellant, as the unsuccessful party, to establish a basis for any departure from the usual rule (Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 111 at [10])". I accept that the mere impecuniosity of the unsuccessful party does not provide sufficient reason for departing from the usual rule ("Philipiah"). 14. The Appeal filed by the Appellant was ultimately wholly unsuccessful. In part it seems the Appellant was unaware that Limited Registration for a position which had not been offered to him was not capable of being granted in the proceeding he brought against the Medical Board. 15. The Medical Board has submitted that the matter should have been capable of being completed in one day. It submits that because of the way in which the Appeal was conducted by the Appellant it took many more days that might reasonably have been necessary. 16. Once the Appellant commenced the proceeding the Respondent had no course available other than to concede the appeal and grant the Limited Registration applied for by the Appellant or defend the proceeding. There was nothing about the manner in which the Respondent conducted the proceeding which lengthened the time required to hear the case, nor was there any conduct on its' part which I consider should entitle the refusal of its' cost application either in whole or in part. 17. The Respondent has sought its' costs be paid "on an ordinary basis". That is not a term known to me. I have understood that what is sought is costs assessed on a "party and party" basis. In the absence of a specific application setting out the reasons that there should be a departure from an assessment of costs on a Party and Party basis, I would not order that costs be paid on any other basis.