Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Reyes (No 2) (Costs) [2023] NSWCATOD 94 Hearing dates: On the papers Date of orders: 28 June 2023 Decision date: 28 June 2023 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Decision: (1) The respondent is to pay two thirds of the applicant's costs, as agreed or as assessed. Catchwords: OCCUPATIONS – nurses – misconduct and discipline – where unsatisfactory professional conduct established and professional misconduct not established – appropriate costs order Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 139B, 139E, 145D Cases Cited: Health Care Complaints Commission v Litchfield (No 3) (Costs) [2023] NSWCATOD 44 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Reyes [2023] NSWCATOD 57 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Costs Parties: Health Care Complaints Commission (Applicant) Alvin Mascarenas Reyes (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Australian Nursing and Midwifery Federation (Respondent) File Number(s): 2022/00253018 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication or disclosure of the names of Patient A and Person B listed in the Schedule to the Applicant's Complaint is prohibited. REASONS FOR DECISION Introduction 1. On 23 February 2023, we conducted a combined Stage 1 and Stage 2 in this matter. 2. On 28 April 2023, we published our reasons for finding that: 1. the practitioner was guilty of unsatisfactory professional conduct; 2. the practitioner was not guilty of professional misconduct. 1. See Health Care Complaints Commission v Reyes [2023] NSWCATOD 57 (the Primary Decision). 2. At the conclusion of the Primary Decision, we stated: Costs 123. This is a costs jurisdiction, and ordinarily costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282. 124. However, the Commission has been successful as to Complaint One, but unsuccessful as to Complaint Two. Our preliminary view therefore is that the Commission should not receive all of its costs. 125. We direct the Commission to provide submissions on costs to the Tribunal and the practitioner within two weeks, with the practitioner responding within a further two weeks. The Commission may reply if necessary within a further week. 126. If it becomes necessary for the Tribunal to determine this issue, we propose to decide the matter 'on the papers', and without a hearing. If either party opposes that course, they should address that matter in their submissions. 1. For the following reasons, the Tribunal has decided that the respondent is to pay two thirds of the applicant's costs, as agreed or as assessed. The Commission's submissions 1. The Health Care Complaints Commission (Commission) concedes that it is not entitled to all of its costs. It submits that apportionment of costs is not an exact science, and that a reduction of 25% of the Commission's costs is reasonable. 2. Thus, the Commission seeks an order that the respondent pay 75% of its costs, as agreed or assessed. The basis for this submission is, in summary: 18. As the Tribunal is aware, the combined hearing was less than one day. The hearing approximately 5 hours in duration. During the hearing, submissions were made in relation to the entirety of the Complaint. As a matter of procedural fairness, especially in the absence of the Respondent, significant time was spent closely examining the particulars alleged, particularly the conduct which was not admitted, and submissions were advanced in relation to their evidentiary basis for those particulars. In the hearing, in the absence of an appearance from the Respondent, time was also taken to carefully examine and interpret his Reply and supporting material. 19. In many ways, the way the Complaint was drafted and the way the proceedings ran, the issue of time spent on the issue of professional misconduct is not a discrete severable issue and a reduction of 25% of the Commission's costs is appropriate. Efforts to minimise costs 20. The Commission took a number of steps during the matter to minimise costs and progress the matter, including not briefing external counsel. 21. The Commission notes that the proceedings were held as a combined stage one and stage two hearing at the request of the respondent, and the Commission acceded to that request and co-operated in advancing the hearing on that basis. 22. An appropriately qualified and experienced expert, being Ms Marabong, was briefed by the Commission to provide her expert opinion. 23. The Commission did not require any witnesses for cross examination and made the expert witness, Ms Marabong, available remotely, in the event the Tribunal had any questions for the witness. The respondent's submissions 1. The respondent seeks an order that each party pay their own costs. 2. In summary, the reasons for that submission were (footnotes and citations omitted): 1. some of the established factors that might militate against the recovery by the Commission of all its costs in particular proceedings include the following: 1. the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct; 2. 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; and 3. there was 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; 1. all three of the above factors are present in this case and on that basis, the respondent should not be subject to an order to pay any of the costs of the Commission. 2. the Commission failed to: 1. obtain findings of professional misconduct; 2. establish all the particulars of the alleged conduct and as such, discrete elements of the conduct complained were not established; 1. the conduct of the Commission, being the procedural steps that gave rise to unnecessary expense in preparing for the hearing, include the decision of the Commission to prosecute the complaint before the Tribunal in circumstances where the Commission had insufficient evidence to warrant filing a complaint of professional misconduct; 2. the fact that it is open to the Commission to file a complaint of unsatisfactory professional conduct with a professional standards committee (PSC) is highly relevant to the consideration of whether costs should be awarded; 3. a PSC does not, however, have the power to order the payment of costs by any party; 4. the Commission knew, or ought to have known, on the evidence available before it that the particulars of the Complaint filed, even if proven, did not amount to professional misconduct as defined under the Health Practitioner Regulation National Law (NSW) (National Law); 5. the Commission's conduct in prosecuting a complaint before the Tribunal in circumstances where the evidence does not support a finding of professional misconduct must be factored in by the Tribunal when determining whether the award of any costs is appropriate in this matter; 6. the respondent should be in no way disadvantaged, financially or otherwise, for the Commission's decision to prosecute this Complaint before the Tribunal where the PSC exists as the most reasonable, low cost and appropriate forum to determine complaints of unsatisfactory professional conduct; 7. the jurisdiction in which a matter is heard is, and should be, reflective of the seriousness of the complaint filed. Having a finding of unsatisfactory professional conduct made by the Tribunal rather than a PSC already carries the inference of the respondent engaging in conduct of a more serious nature than what has been determined; 8. that impact should not be compounded by an order for costs made against the respondent in circumstances where such an impost could reasonably have been avoided by the Commission had they chosen to prosecute the complaint in the most appropriate forum; 9. had a PSC formed the view that the conduct that is the subject of the complaint amounted to professional misconduct as defined under s 139E of the National Law, the PSC is required to refer the matter to the Tribunal; 10. while the principle of a reduction of costs as outlined in Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 may be applicable in such circumstances, the Commission's does not appropriately consider and weigh the particulars that were not successfully proven by the Commission. 11. the reduction suggested by the Commission does not acknowledge the extent of the psychological, emotional and financial impact on the respondent of being prosecuted for a complaint and particulars that were not proven and were not consistent with the evidence. 1. In conclusion, the respondent submits that an order that each party pay their own costs would reflect an appropriate reduction in circumstances where a significant and serious portion of the Complaint was not established. It would also ensure that the respondent is not unduly penalised because of the Commission's inaccurate assessment of the evidence and subsequent decision as to where this Complaint was prosecuted. The Commission's submissions in reply 1. In its submissions in reply, the Commission maintained its position that the appropriate order was for the respondent to pay 75% of the Commission's costs, as agreed or assessed. 2. In response to the respondent's submissions, the Commission relies on Health Care Complaints Commission v Litchfield (No 3) (Costs) [2023] NSWCATOD 44 (Litchfield) and submits that: 1. merely because submissions are not accepted does not amount to any dereliction of the Commission in its duty to the Tribunal and does not amount to conduct which supports a reduction in the Commission's costs award given its overall success in the proceedings: Litchfield at [33]; 2. the concept of "overall success" in protective proceedings of this kind is potentially somewhat different to that in private litigation which does not have the public interest aspect: Litchfield at [48]; 3. success does not depend on whether on particular protective order was made when the order actually made was more onerous than the respondent asked for (Litchfield at [51]): It would be regrettable if ... the Commission were to be penalised because, in the discharge of its obligations pursuant to the National Law, it failed to secure cancellation of the Practitioner's registration when it secured such onerous conditions with respect to the Practitioner's registration. 1. the Commission agreeing to a combined hearing can be taken into account in the Commission's favour: Litchfield at [52]. 1. The Commission further submits that: 1. the submission that the Commission has acted 'oppressively' in referring a complaint to the Tribunal, where the National Law prescribes a duty to do so, is misguided; 2. while the respondent was not suspended, s 145D of the National Law provides that the Commission has a duty to refer a complaint to the Tribunal, if at any time, the opinion is formed that "it may", if substantiated, provide grounds for suspension or cancellation; 3. the paramount consideration must be the health and safety of the public. Patient A was a vulnerable patient for a myriad of reasons. Those reasons include his age and his acute mental illness; 4. the first time the respondent admitted the conduct as outlined at Complaint One, Particular 5 was inappropriate was in his Reply. Similarly, during the Commission's investigation of these proceedings, the respondent choose not to respond to the allegations. The insight of the respondent is a relevant consideration in assessing the protection of the health and safety of the public; 5. as required under the National Law, the Commission consulted with the Nursing and Midwifery Council of NSW in relation to the contemplated referral of the complaint to Tribunal; 6. in Lucire v Health Care Complaints Commission [2011] NSWCA 99, the Commission was successful in respect of a finding of unsatisfactory professional conduct, but not professional misconduct. On appeal, in relation to costs (Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182), the Court of Appeal commented at [49]: … It is not correct to apportion costs equally between the dismissal of the complaint with respect to professional misconduct and the upholding of the other complaint. The factual basis for each complaint was the same: the proper characterisation of the legal consequences of the findings of fact was a discrete issue, involving a relatively small proportion of the time at the hearing and submissions and on which the Commission was partly successful and partly unsuccessful. Any reduction in costs on account of the part on which it was unsuccessful would be relatively minor. (Emphasis added) 1. taking into account the degree to which the complainant was unsuccessful before the Tribunal, the Court of Appeal found in Lucire v Health Care Complaints Commission (No 2) that the appropriate basis for the calculation of costs in the Tribunal should be that the practitioner paid 70% of the Commission's costs. Consideration 1. In the Primary Decision, we considered two complaints. 2. Complaint One was that the practitioner was guilty of unsatisfactory professional conduct under ss 139B(1)(a) and/or (l) of the National Law. 3. There were six Particulars of that complaint and we found that: 1. the conduct the subject of Particulars 1(a), 3(a), (b) and (c), 4(a), (b) and (c), and 5(a) and (b) was established; 2. the conduct the subject of Particulars 1(b), 2 and 6 was not established. 1. Accordingly, we found Complaint One established. 2. Complaint Two was that the practitioner was guilty of professional misconduct under s 139E of the National Law. 3. The Particulars of Compliant Two were: 1. Particulars 5(a) and 5(b) of Complaint One, which were relied on individually; 2. the Particulars of Complaint One, which were relied on cumulatively. 1. As we found only Particulars 1(a), 3(a), (b) and (c), 4(a), (b) and (c), and 5(a) and (b) of Complaint One established, they were the only Particulars that could be relied on cumulatively by the Commission. 2. As we stated in the Primary Decision, this is a costs jurisdiction, and ordinarily costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282. 3. I accept that the Commission failed to establish the complaint of professional misconduct, and also failed to establish all the particulars of the alleged conduct with the result that discrete elements of the conduct complained were not established. 4. However, I see no basis on which there should be no order as to costs, as sought by the respondent. In my view, clearly the Commission is entitled to a good proportion of its costs. 5. I reject the submission that there was oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, and I did not observe the Commission taking procedural steps that gave rise to unnecessary expense in preparing for the hearing. 6. I reject the submission that the fact that it is open to the Commission to file a complaint of unsatisfactory professional conduct with a PSC should militate against recovering costs in Tribunal proceedings. 7. While I agree that the case for professional misconduct was weak, I reject the submission that the Commission knew, or ought to have known, on the evidence available before it, that it did not amount to professional misconduct as defined under the National Law. 8. It is correct that the particulars of the two complaints overlapped, but the comments of the Court of Appeal in Lucire v Health Care Complaints Commission (No 2) set out above are appropriate. 9. On balance, I consider that the appropriate order is that the respondent pay two-thirds of the Commission's costs. I consider that that order appropriately reflects the Commission's success, but takes into account the failure of the Commission to establish certain particulars and Complaint Two. Conclusion 1. The Tribunal orders: 1. The respondent is to pay two thirds of the applicant's costs, as agreed or as assessed. ********** 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: 28 June 2023