Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Beran v Medical Council of New South Wales [2023] NSWCATOD 131 Hearing dates: On papers after 14 August 2023 Date of orders: 29 August 2023 Decision date: 29 August 2023 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Decision: 1. Under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing is dispensed with. 2. The Respondent is to pay 75% of the Appellant's costs as agreed or assessed. Catchwords: COSTS - who should pay the costs of an appeal under s 160 of Health Practitioner Regulation National Law (NSW) – where Appellant withdrew reliance on an appeal under s 160A at the commencement of the hearing – whether that withdrawal amounts to disentitling conduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Beran v Medical Council of New South Wales HCCC v Philipiah [2013] NSWCA 342 Jan No 2 v Health Care Complaints Commission [2021] NSWSC 350 HCCC v Philipiah [2013] NSWCA 342 Beran v Medical Council of New South Wales [2023] NSWCATOD 104 Category: Costs Parties: Professor Roy Beran (Appellant) Medical Council of NSW (Respondent) Representation: Counsel: S Maybury (Appellant) H Bennett (Respondent) Solicitors: Meridian Lawyers (Appellant) Health Care Complaints Commission (Respondent) File Number(s): 2022/00329097 REASONS FOR DECISION Overview 1. The issue in these proceedings is who should pay the costs of an appeal by Professor Beran from a decision of the Performance Review Panel of the Medical Council of New South Wales (the Council). The Council found that Prof. Beran's performance was unsatisfactory and imposed conditions on his registration. Prof. Beran appealed to the Tribunal under s 160 of the Health Practitioner Regulation National Law (NSW) (National Law). On 19 July 2023, the Tribunal published reasons for decision on the appeal: Beran v Medical Council of New South Wales [2023] NSWCATOD 104. 2. An appeal under s 160 of the National Law is to be dealt with by way of a new hearing and fresh evidence may be given. Prof. Beran did not appeal from the Council's finding that his performance was unsatisfactory. Rather, he appealed from the imposition of certain conditions which were placed on his registration. He said that some of the conditions were unnecessary or inappropriate. Council submitted that all the conditions were appropriate and should be maintained. 3. Prof. Beran submits that he has succeeded on the substance of the matters that were in issue on appeal and the Council should pay his costs. Alternatively, if the Tribunal considers that there should be some reduction in costs because he abandoned an appeal under s 160A of the National Law, Council should be ordered to pay 75% of his costs. The Council submits that there was a mixed outcome on appeal and that it was put to unnecessary expense in responding to the appeal under s 160A. In those circumstances, there should be no order as to costs. Each party should pay their own costs. 4. Both parties agree to the costs issue being determined without a hearing. We are satisfied that the costs issue can be adequately determined in the absence of the parties by considering the written submissions lodged by the parties: Civil and Administrative Decisions Act 2013 (NSW), s 50. Consideration 1. Under Schedule 5D, clause 13 of the National Law, the Tribunal has power to require the Commission or a registered health practitioner such as Prof. Beran, to pay the costs of another party. The Tribunal has a broad discretion in relation to costs, but that discretion must be exercised judicially: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]. The ordinary rule is that costs following the event, that is, the successful party is entitled to their costs. The onus is on the unsuccessful party to displace the ordinary rule. 2. If one party has not been wholly successful, there is a well-recognised discretion to depart from the ordinary rule. In Jan No 2 v Health Care Complaints Commission [2021] NSWSC 350 at [15] Leeming JA stated that: There is regularly a question which arises where a litigant enjoys some partial success, but has also been unsuccessful on some of the issues litigated. There is a well recognised discretion in those circumstances to depart from the usual rule. In Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343 it was said at [10] that the costs ordered "should be a just and fair reflection of the cases run, won and lost, given the range of issues litigated, the manner of running the trial and the basis of success." 1. Prof. Beran did not appeal from the Council's finding that his performance was unsatisfactory and the Tribunal came to the same conclusion. Consequently, Prof Beran was not "unsuccessful" on that issue. Prof Beran's case was that some of the conditions imposed by Council were inappropriate or unnecessary. The issue was whether the conditions imposed by Council should remain, or whether some less onerous conditions should replace them. Contrary to the Council's submission, we do not consider it relevant that Prof. Beran did not put forward the specific conditions that he considered appropriate. He did indicate that he was prepared to accept certain conditions. 2. Council had restricted Prof. Beran's practice to undertaking no more than 20 hours of clinical practice per week in a research position or a public hospital position and restricted the types of shifts that he could work. Prof Beran submitted that these restrictions were not necessary but would accept a condition that he not return to sole private practice. The Tribunal did not impose restrictions on Prof. Beran's hours of work or types of shift. The Tribunal found at [87] that "there was no evidence or any reason to conclude that Prof. Beran's workload, as distinct from the time he allocated to see patients, was affecting his professional performance". The only restriction on the nature of his practice was that he could not undertake clinical practice in sole private practice. 3. Council imposed a condition that when requesting or referring a patient for any Sleep Deprivation Electroencephalography Scans (EEG) he must "not order more than four hours of sleep deprivation in any request". At [64] and [86], the Tribunal accepted expert evidence on this issue and increased the number hours of sleep deprivation from four hours to twenty-four hours. 4. The Tribunal did impose two conditions not sought by Prof Beran or the Council. The first was a condition that he treat no more than one new patient every 45 minutes and no more than one existing patient every 30 minutes. The second condition was that he complete the Clinical Communication Program organised by the Cognitive Institute. 5. It cannot be said that Prof Beran was wholly successful on appeal, because the Tribunal imposed other conditions that neither party sought. Nevertheless, he has succeeded on the substance of the matters that were in issue. On the other hand, Council has not succeeded, in a practical sense, on any contested issue. Given the range of issues litigated and the outcome, it would be just and fair for Council to pay Prof. Beran's costs. However, the general rule that costs follow the event will be displaced where there has been some kind of disentitling conduct on the part of the successful party. Disentitling conduct may include lengthening the proceedings unnecessarily, causing unnecessary issues to be canvassed or otherwise causing the costs of the litigation to be increased: Arain v Nguyen [2001] NSWCA 5 at [36] and [38]. 6. At the beginning of the hearing, at the suggestion of the Tribunal, Prof. Beran withdrew the appeal under s 160A of the National Law. As there had not previously been an appeal under that provision, Council devoted a significant part of its written submissions dated 4 April 2023, to that issue. Appealing on this ground caused unnecessary issues to be canvassed and increased the costs of the litigation. We agree with Council's submission, and Prof. Beran's secondary submission, that Prof. Beran's costs should be discounted because of this conduct. An appropriate discount is that Council pay 75% of Prof. Beran's costs. Order 1. Under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing is dispensed with. 2. The Respondent is to pay 75% of the Appellant's costs as agreed or 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 Amendments 13 September 2023 - coversheet - Avant Law to Meridian Lawyers 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: 13 September 2023