Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nelson v Health Care Complaints Commission (No 2) (Costs) [2023] NSWCATOD 93 Hearing dates: On the papers after 7 June 2023 Date of orders: 27 June 2023 Decision date: 27 June 2023 Jurisdiction: Occupational Division Before: O Shub, Senior Member W Thomas, Senior Member L Schalk, Senior Member C Gardiner, General Member Decision: (1) The Applicant's application for costs to be awarded against the Respondent is dismissed. (2) No order as to costs is made. Catchwords: COSTS – party/party – application by successful applicant for reinstatement order – no disentitling conduct by respondent – no costs order made HEALTH — nurse — reinstatement application — previously surrendered registration — earlier Tribunal hearing — failure to maintain boundaries — relationship with mental health patient — steps to rehabilitation Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 64 Health Practitioner Regulation National Law (NSW), s 163C(3), Sch 5D cl 13 Legal Profession Uniform Law Application Act 2014 (NSW), s 3A Cases Cited: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 Chen v Medical Council of NSW (No 2) [2021] NSWCATOD 64 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Girgis (née Tanios) v Health Care Complaints Commission [2019] NSWCATOD 126 Haber v Health Care Complaints Commission [2018] NSWCATOD 16 Health Care Complaints Commission v Do [2014] NSWCA 307 House v The King (1936) 55 CLR 499; [1936] HCA 40 Ledner v Health Care Complaints Commission [2019] NSWCATOD 30 Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 Nelson v Health Care Complaints Commission [2023] NSWCATOD 5 Roberts v Medical Council of New South Wales [2015] NSWCATOD 35 Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102 Category: Principal judgment Parties: Faron James Nelson (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: K J Young (Applicant) A Bhasin (Respondent) Solicitors: Dormer Stanhope (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2022/00051750 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure or publication of the names of Patient A and Person A listed in the Schedule to the Complaint is prohibited. reasons for decision THE ISSUES 1. The Applicant has made an application against the Respondent for payment of its costs associated with the Applicant's application for reinstatement which was granted by the Tribunal on 24 January 2023: Nelson v Health Care Complaints Commission [2023] NSWCATOD 5. 2. The Applicant seeks to recover his costs from the Respondent having successfully applied for reinstatement, or alternatively, for there to be no order as to costs. 3. The order made by the Tribunal provided that the costs associated with the application shall be determined by the Tribunal on the papers in due course. 4. The Tribunal had available to it submissions made by the Applicant and the Respondent and an affidavit by Matthew Thomas Hamlin, the Applicant's solicitor. APPLICANT'S SUBMISSIONS ON COSTS 1. In written submissions to the Tribunal dated 12 May 2023, the Applicant stated as follows: "2. The Tribunal's power to make a costs order is found in clause 13 of Sch 5D to the 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. 3. That discretion must be exercised judicially, that is, it must be 'exercised according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion' as explained by Starke J in House v The King (1936) 55 CLR 499; [1936] HCA 40. 4. However, the power is informed in part by the usual costs principles and the facts of the matter. The Applicant submits that the general costs principles relevant to the award of costs in the Tribunal were explained by Meagher JA in HCCC v Do [2014] NSWCA 307 ("Do"). At [51] His Honour explained: '[84] In HCCC v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event".' 5. First, the Applicant seeks an order for costs in his favour, with those costs to be assessed on the basis that he was wholly successful with his re‑instatement application. However, he acknowledges upfront that an order for costs in one party's favour, based on the general principle that costs follow the event, more appropriately applies to complaints matters rather than to reinstatement applications. That does not mean that the fact that he was successful on his reinstatement application is not a relevant factor. 6. The main authority on the issue of the determination of costs in reinstatement applications in the Tribunal is not [Ake v Health Care Complaints Commission [2019] NSWCATOD 165] but Donnelly v HCCC [2014] NSWCATOD 155 (Donnelly) in which it was noted that the compensatory principle 'is not necessarily apposite to reinstatement cases' ([55] —[57]). More specifically, the Tribunal observed: '[I]it has been the prior criminal actions, professional misconduct, professional incompetence or other actions rendering them not a suitable person to be registered to practise a particular health profession that has caused the need for the application for a reinstatement order. It is appropriate that at the inquiry triggered by the application for a reinstatement order that there be a contradictor to test the applicant's evidence, bring evidence itself in cases where that is appropriate or is effectively required by s 163C(3) of the National Law and to assist NCAT with submissions about relevant matters. This provides procedural fairness to the applicant first by ensuring that he or she knows what matters they have to deal with beyond those that they wish to put in support of their application. It also avoids NCAT having to pursue relevant matters unwelcome to the applicant directly with the applicant leading to possible apprehensions of bias on the part of the applicant and ensures transparency during the inquiry process. These considerations, and possibly others, give the basis for not awarding costs to an applicant and against the contradictor where the applicant succeeds in obtaining a reinstatement order from NCAT. On the other hand it does not necessarily follow that in addition to bearing his or her own costs an applicant should also pay the costs of the contradictor as another expense to be incurred in the process of seeking to return to a health profession from which they have been ejected by cancellation of their registration. ...' [56-58]. (emphasis added by Applicant) 7. Donnelly is based on Court of Appeal authority in HCCC v Do [2014] NSWCA 307 and the reasoning in Donnelly has been followed in the following cases: a. Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43; b. Roberts v Medical Council of New South Wales [2015] NSWCATOD 35; c. Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102; d. Haber v Health Care Complaints Commission [2018] NSWCATOD 16; e. Ledner v Health Care Complaints Commission [2019] NSWCATOD 30; and f. Girgis (née Tanios) v Health Care Complaints Commission [2019] NSWCATOD 126. 8. A review of the case law in Donnelly led to the conclusion that the applicable costs principles are flexible and that `the unfettered nature of the discretion is perhaps the primary principle': at [65]. 9. It is accepted by the Applicant that there have been other decisions of the Tribunal which take a different approach to costs in these types of applications. As explained by Her Honour Boland J in Chen v Medical Council of NSW (No 2) [2021] NSWCATOD 64 (Chen) who considered in some detail the conflicting and different approaches taken by the Tribunal as to costs on reinstatement applications including in Donnelly and Ake concluded at [31] "... while I accept that previous Tribunal decisions on this issue provide guidance, each case ultimately falls to he decided on its particular facts and circumstances." In short there is no automatic presumption that the Commission gets it costs as dictated by Ake. 10. In Donnelly which involved a successful application for reinstatement, the Tribunal declined to make a costs order on the basis that: 'In determining what to do about costs in this case, we note that neither the HCCC nor the successful applicant, Dr Donnelly, have done anything in the way they conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour. We also note that Dr Donnelly had no choice but to make the application to NCAT that he did make if he wished to obtain reregistration as a psychologist. Similarly such an application generates a role as contradictor for the HCCC. To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case: at 66' 11. In summary, in Donnelly no costs order was made in favour of the Applicant practitioner based on a balancing of the following factors: a. the practitioner had no choice but to make the application if he wished to obtain reregistration.... such application generates a role as contradictor for the HCCC; b. to award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the fact that costs are involved in acting as a contradictor or vice versa; c. the application for review flows as a consequence of proven misconduct of the practitioner; d. as the statutory contradictor, the Commission has to respond to the application; e. there was no disentitling conduct on the part of either party; f. the Commission's participation was helpful and promoted the public interest. It assisted in ensuring all relevant information came out and was properly tested enabling the Tribunal to be confident in the decision that a reinstatement order was appropriate and public properly protected. 12. Similarly, in Chen, the Tribunal (Boland J) declined to make any order for costs in part because the Applicant indicated that he would not oppose conditions on his registration if a re-instatement order was made and asked the Council to consider that position prior to hearing and then during the hearing made it clear that he accepted conditions should be imposed on his registration if a re-instatement order was made: see [34] and [35]. 13. The Applicant submits that substantially the same factors as were considered in Donnelly and Chen apply to this case with the exception that there was some [dis]entitling conduct on the part of the Commission, a public agency who should act as a model litigant. The NSW Model Litigant policy requires State agencies to not merely act honestly and in accordance with the law and court rules but it requires the State ... agencies to act with complete propriety, fairly and in accordance with the highest professional standards. Similarly obligations apply to public sector agencies at a Commonwealth level. In the Applicant's submissions the Commission did not meet up to model litigant standards such that the balance overall weighs in favour of the Applicant getting his costs paid on an ordinary basis for the reasons set out below. 14. In that regard, the Applicant contends the following matters weigh in favour of him on the costs discretion: a. the failure of the Commission to indicate its position in respect to Mr Nelson's application for reinstatement until 14 October 2022, being the date on which it served its Reply to the application; almost 8 months after the commencement of the proceedings on 22 February 2022 b. the failure of the Commission to serve paginated copies of Tab 10A and Tab 12 of its bundle of documents to be relied on at hearing, being the Applicant's medical records held by Dr Adrian Gilliland and Ms Kim Malone, respectively, which the Commission's counsel provided to the three Members at the Tribunal and did not serve a paginated copy on the Applicant or his lawyers such that significant detriment and confusion occurred at hearing in following and dealing with the Commission's Counsel's cross-examination of the Applicant. A hardcopy was provided to the Applicant's legal team after lunch at the hearing and until then the Applicant's counsel had to rely on a copy of the evidence provided by one of the members. As a state public body, the Commission is meant to be a model litigant subject to the requirements of NSW Model Litigant Policy — service of material on the Tribunal without the same material being provided to an Applicant is not fair and should have never occurred; c. the Commission's provision of Tab 10A and Tab 12 of its bundle of documents was further complicated as the unpaginated versions of Tab 10A and Tab 12 served on 14 October 2022 comprised 166 and 93 pages, respectively, whereas the paginated bundle of documents served after lunch at the hearing comprised 164 and 91 pages, respectively. The Commission did not bring this to the Applicant's Counsel's attention and did not provide any explanation for the discrepancy between the unpaginated and paginated versions of documents which were used for the cross-examination of the Applicant. This further contributed to detriment and confusion for the Applicant's legal team at hearing and again should never have occurred; d. the failure of the Commission to inform the Applicant it required Dr Matthew Jones, Psychiatrist, for cross-examination until 3 November 2022 which caused significant stress and panic in circumstances where his expert report on the Applicant's fitness for re-registration was filed and served on the Commission on 26 September 2022; e. the failure and adamant refusal of the Commission to engage in any discussion surrounding the proposed conditions of registration with the Applicant both before; at the hearing or after the hearing; f. further, and significantly, the Applicant made it clear that he was happy to agree to reasonable conditions being imposed on his registration. Dr Jones's expert report dated 12 September 2022 raised various conditions that could be placed on the Applicant's registration to mitigate any potential risks or concerns regarding his return to practice. The Applicant's lawyers wrote to the Commission on 25 October 2022 asking for the Commission to suggest conditions for the Applicant's consideration in light of Dr. Jones's expert report. For the convenience of the Tribunal, Dr Jones stated in his report as follows: 'There are multiple potential suitable conditions on registration that would assist in mitigating risks or concerns regarding Mr Nelson returning to practice. These would include such measures as graduated limited exposure to clients, the use of chaperones, the use of multiple supervisors, ongoing psychological and psychiatric monitoring. These measures are well and truly in the experience of bodies such as AHPRA and the Nursing and Midwifery Board.'; g. the Commission failed to consider the sole expert opinion of Dr Jones on what he considered to be routine matters and conditions for AHPRA and the Nursing and Midwifery Board and did not even respond to the Applicant's lawyers suggestion of conditions until 7 November 2022, the day before the hearing, when it informed the Applicant's lawyers it was not in a position to comment on any conditions as it takes the view that the Applicant will not satisfy the Nursing and Midwifery Board of Australia's (NMBA) recency of practice registration standard, a prerequisite to registration with the Australian Health Practitioner Regulation Agency (AHPRA). It goes without saying but it is not the role of the Commission to deal with registration requirements that is solely for AHPRA; h. At the end of the hearing the Senior Member then invited the Commission [to] make submissions on appropriate conditions. One would have thought that this was the role of a contradictor. The Commission still refused to engage in any proper consideration of the Applicant's proposed conditions and continued with its primary position that no conditions should be imposed; i. Ultimately, the Commission's submissions were wholly rejected by the Tribunal and it found at [31]: 'The Tribunal is of the view that it is entirely appropriate, if granting a reinstatement order, to impose such conditions on the Applicant when applying for reregistration and leaving it to AHPRA and the Nursing and Midwifery Council to determine whether they believe that any additional or varied conditions should be imposed on the registration of the Applicant.' The Tribunal noted further the Respondent's reluctance to engage with the proposed conditions in its decision at [32]; j. the Applicant's upfront and open concession he would agree to conditions being attached to his registration and the adamant and incorrect refusal by the Commission to engage in proper discussions of the proposed conditions is a significant factor that weighs in favour of the Applicant especially when one considers the role of the Commission was meant to be that of a contradictor who is meant to assist the Tribunal. In short, the Commission should not be compensated for its role as a contradictor when it failed to carry out part of that role; k. The significance of the Applicant agreeing to conditions on reinstatement on costs orders was considered by Boland J in Chen v Medical Council of NSW (No 2) [2021] NSWCATOD at [34]. Not only did the Applicant indicate at hearing his willingness to not oppose conditions on his registration, the Applicant invested significant time and legal costs in preparing detailed conditions for registration for the Tribunal to consider upfront and which were attached to his submissions and ultimately adopted by the Tribunal with little or no amendment: see paragraph [33] of the decision. This is a significant factor in favour of the Applicant together with the expert's report similar to the case of Chen. 15. Alternatively, the Applicant submits that if the Tribunal finds that the Applicant should not be compensated for his costs or that the conduct by the Commission does not constitute disentitling conduct, then he submits that he should not have to compensate the Commission for its costs and the appropriate order is that each party bears its owns costs. The Applicant submits that such an order would be consistent with the authority in Donnelly and relies upon the following portion of the judgment in Donnelly at [66] – [67]: 'In determining what to do about costs in this case, we note that neither the HCCC nor the successful applicant, Dr Donnelly, have done anything in the way they conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour.... To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case.' 16. No costs order should be made on the following basis: a. Mr Nelson had no choice but to make the application if he wished to obtain reregistration.... such application generates a role as contradictor for the HCCC; b. to award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the fact that costs are involved in acting as a contradictor or vice versa; c. the application for review flows as a consequence of proven misconduct of the practitioner; d. as the statutory contradictor, the Commission has to respond to the application; e. there was no disentitling conduct on the part of either party; f. the Commission's participation was helpful and promoted the public interest. It assisted in ensuring all relevant information came out and was properly tested enabling the Tribunal to be confident in the decision that a reinstatement order was appropriate and public properly protected; and g. the Applicant agreed upfront reasonable, if not very reasonable, conditions on his registration which were adopted in the main by the Tribunal with little or not contribution by the Commission even after the Tribunal invited the Commission to engage in discussion around conditions." (Footnotes omitted) 1. The Applicant relied on their references to various case law pursuant to which they believe they should be entitled to recover their costs from the Respondent. RESPONDENT'S SUBMISSIONS ON COSTS 1. In written submissions to the Tribunal dated 1 June 2023, the Respondent stated as follows: "1. The Commission accepts that the Tribunal has a discretion in relation to an order for costs, the principled exercise of which in the specific context of an application for reinstatement has been considered in a number of decision[s] (including those cited by the applicant). In the present case, the Commission does not oppose a no costs order. 2. The applicant has cited no authority in which the more radical position for which he now appears to contend – that the Commission pay his costs – was accepted. That is unsurprising given the role that the Commission plays as a contradictor in such applications, which arise as a consequence of the practitioner's prior professional misconduct and which the practitioner must make if they wish to obtain re-registration: see eg Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 at [56], [66]. So much is accepted in the applicant's alternative submissions at AS[16(a)-(g)]. The authorities relied upon by the applicant reveal that the real issue in such cases is whether the Commission should obtain an order for its costs on a successful reinstatement application. That issue no longer arises in this case. 3. The Commission denies the applicant's suggestion, in support of an order that it pay his costs, that it has engaged in disentitling conduct in its conduct of these proceedings, and the serious and unwarranted accusation that it has failed to act with "propriety, fairly and in accordance with the highest professional standards" in accordance with the NSW Model Litigant Policy: AS[13]. The matters relied upon by the applicant at AS[14] do not support such a submission. In particular: (a) The applicant complains at that the Commission first indicated its position on the application by way of its Reply served on 14 October 2022. This was done in accordance with the timetable set by the Tribunal, the original timetable having been varied on 15 July 2022 following an adjournment application made by the applicant so that he could obtain more medical evidence. The Reply is the appropriate mechanism by which the Commission indicates its position, in accordance with the Tribunal's directions and having had an opportunity to consider the evidence relied upon by the applicant. The position adopted, that the Commission appeared as a contradictor and neither opposed nor consented to the application, was entirely appropriate and conventional, and there can be no sensible suggestion that it caused the applicant any prejudice or to incur any unnecessary costs. (b) The applicant's complaints concerning document pagination do not evidence any disentitling conduct, far less the more serious allegation of a lack of propriety. It became apparent during the course of the hearing that counsel for the applicant did not appear to have been provided with all of the material served upon [his] instructing solicitors by the Commission on 14 June 2022 and again on 14 October 2022 in accordance with the amended timetable. That issue was, on the applicant's account, resolved in a practical fashion by a member of the Tribunal providing counsel with a copy until a hard copy was provided following the luncheon adjournment. There is no substance to the suggestion that this course of events would, or did, cause experienced counsel "significant detriment and confusion" in the course of the hearing. No such contention was raised at the time, and no practical prejudice has been identified. The issue did not extend the length of the hearing or contribute to any additional costs being incurred. (c) The suggestion of a "discrepancy" between the paginated and unpaginated versions of Tab 10A and 12 that should have been brought to the applicant's attention and caused his legal team "detriment and confusion" is misleading. The substantive material is identical – comprising 158 pages for Tab 10A … and 85 pages for Tab 12 .... It is apparent upon even a cursory review of the material that the supposed "discrepancy" arises from the inclusion of the application for the summons in the unpaginated versions, and the applicant including a cover sheet in his page count of the paginated versions. (d) The Commission provided reasonable notice that it required Dr Jones for cross-examination. The Commission had provided notice on 9 September 2022 that it required Dr Gililand and Ms Malone for cross-examination: …. Dr Jones' report was served subsequently, on 12 September 2022. The applicant was informed on 3 November 2022 that Dr Jones was also required, in advance of hearing on Tuesday 8 November 2022: …. That is ample notice in accordance with the ordinary conduct of proceedings. Despite the applicant now contending that this caused "considerable stress and panic", no difficulties were raised at the time, with the applicant's solicitors providing an amended hearing plan and confirming that Dr Jones had been provided with the AVL details: …. (e) The Commission adopted a reasonable position in relation to the imposition of conditions. Its position, as recorded in the substantive judgment (Nelson v Health Care Complaints Commission [2023] NSWCATOD 5) at [27] under the heading "imposition of conditions" was (in summary) that it was premature to impose conditions where there was no immediate prospect of the applicant returning to practice, any conditions imposed by the Tribunal may no longer be appropriate based on circumstances pertaining at that time, and the Nursing and Midwifery Board of Australia was empowered to impose appropriate conditions at that time. However, the Commission submitted that if the Tribunal nevertheless determined to impose conditions, those proposed by the applicant were suitable. The Tribunal ultimately rejected the Commission's primary submission and decided to impose conditions: at [31]. The fact that the Tribunal did not accept the Commission's primary submission does not amount to disentitling, unfair or improper conduct. Even in cases where there may be some implicit criticism of the position adopted by the Commission, that has at most weighed in favour [of] an order that there be no order as to costs: see eg Chen v Medical Council of New South Wales (No 2) [2021] NSWCATOD 64 at [34]-[36]; Donnelley at [59]. 4. Apart from the specific issues raised by the applicant, which have been dealt with above, there is no suggestion that the Commission acted otherwise than appropriately in its role as a contradictor on the application. It did so by testing the evidence in support of the application through cross-examination, and identifying the pertinent issues, evidence and legal principles that fell to be determined by the Tribunal. The applicant appears to accept as much in his submissions at AS[16(f)]: '… the Commission's participation was helpful and promoted the public interest. It assisted in ensuring all relevant information came out and was properly tested enabling the Tribunal to be confident in the decision that a reinstatement order was appropriate and public properly protected.' 5. In the circumstances, there should be no order as to costs." 1. The Respondent denies that it has acted in any way counter to its obligations as a model litigant and relies on the cases referred to in its submissions and those contained in the Applicant's submissions which make clear the purpose of contradicter in an application for reinstatement and that they have complied with all the obligations set out in the Donnelly matter referred to in par 11 of its submissions. DECISION AND REASONS 1. The Tribunal has considered the submissions of both parties. It is satisfied that the Respondent has not acted outside the rules of a model litigant. Even if the Respondent can to some extent be criticised for some of the issues raised by the Applicant, the view of the Tribunal is that they caused no prejudice to the Applicant and did not involve the Applicant incurring any additional cost. The Tribunal is satisfied that the failings on the part of the Respondent as suggested by the Applicant, for example, the late notice to advise that they required an expert to appear before the Tribunal or some failings in regard to the documentation presented, were all resolved at the time of the hearing without any comment or suggestion by the Applicant that they were in any way disadvantaged or prejudiced. 2. These complaints might have supported an argument that the Respondent be entitled to recover its costs if they were claimed, but in the circumstances the Respondent does not seek to recover its costs and therefore not an issue requiring to be dealt with. 3. In all the circumstances, the Tribunal is satisfied that it is appropriate that no costs order be made in this matter. ORDERS 1. The Applicant's application for costs to be awarded against the Respondent is dismissed. 2. No order as to costs is made. ********** 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: 27 June 2023