Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gaberman (No 2) [2023] NSWCATOD 178 Hearing dates: On the papers Date of orders: 04 December 2023 Decision date: 04 December 2023 Jurisdiction: Occupational Division Before: A Britton, Deputy President Decision: 1. Mr Gaberman is to pay 50% of the Commission's costs as agreed or assessed. 2. Each party is to pay their own costs in relation to the Commission's costs application. Catchwords: COSTS — justifiable reasons for departing from the general rule that costs follow the event — whether the Commission engaged in "disentitling conduct" — COSTS — apportionment of costs — whether failure to establish discrete parts of complaint militates against the Commission recovering all of its costs. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 50 Health Care Complaints Act 1993 (NSW), s 90B(1)(a1) Health Practitioner Regulation National Law 2009 (NSW), cl 13, Sch 5D Medical Practice Act 1992 (NSW) Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Gaberman [2023] NSWCATOD 77 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 Health Care Complaints Commission v Litchfield (No 3) (Costs) [2023] NSWCATOD 44 NSW v Stanley [2007] NSWCA 330 Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 Texts Cited: None cited Category: Costs Parties: Health Care Complaints Commission (Applicant) Lance Michael Gaberman (Respondent) Representation: Counsel: Sarah McCarthy (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Randall Legal (Respondent) File Number(s): 2022/00253147 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of Patients A, B and C is prohibited. REASONS FOR DECISION 1. The Health Care Complaints Commission (the Commission) seeks an order for costs in proceedings commenced in the NSW Civil and Administrative Tribunal (NCAT) by the Commission's Director of Proceedings under s 90B(1)(a1) of the Health Care Complaints Act 1993 (NSW). Those proceedings concerned a complaint about former registered nurse, Mr Lane Gaberman (the Complaint). 2. Mr Gaberman admitted part of the Complaint. Except in respect of one discrete issue, the Tribunal found the balance of the Complaint not proven. The Tribunal found Mr Gaberman guilty of "unsatisfactory professional conduct" (Health Practitioner Regulation National Law 2009 (NSW) (the National Law), s 139B(1)(a)) but not, as the Commission pleaded in the Complaint, "professional misconduct" (National Law, s 139E(1)). The Tribunal made orders under s 149A of the National Law reprimanding Mr Gaberman and imposing conditions on his registration as a nurse: Health Care Complaints Commission v Gaberman [2023] NSWCATOD 77 (the Decision). 3. The parties agree that Mr Gaberman should pay some of the Commission's costs of the proceedings. However, they disagree about the proportion of the Commission's costs that Mr Gaberman should be required to bear. The Commission submits that Mr Gaberman should be required to pay 70% of its costs. On the other hand, Mr Gaberman submits that he should be required to pay costs in a fixed sum, $3,200. 4. For the reasons that follow I have decided that Mr Gaberman should pay half of the Commission's costs. Determination of the Commission's costs application 1. Both parties consented to the Commission's costs application being determined "on the papers". After considering the written submissions filed by the parties, I was satisfied that the issues raised by that application could be adequately determined without a hearing as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. Over Mr Gaberman's objection, I gave the Commission leave to file submissions in reply to those filed by Mr Gaberman. I did so because I considered fairness demanded that the Commission be given the opportunity to respond to the claim that had not previously been raised by Mr Gaberman: that the Commission had engaged in oppressive conduct. The Commission's submissions did not otherwise raise any new issues. Substantive decision 1. To put the submissions made by the parties in context, it is necessary to set out some details about the Complaint, the admissions made by Mr Gaberman and the findings made and the conclusions reached by the Tribunal. These reasons should be read together with the Decision. 2. Set out in Annexure A to the Decision, the Complaint consisted of four individual complaints. By Complaints 1, 2 and 3, the Commission alleged that by the conduct particularised in each of those complaints, Mr Gaberman is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law ("conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience") and s 139B(1)(l) of the National Law ("any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession"). 3. By Complaint 4, the Commission alleged that Mr Gaberman is guilty of professional misconduct (National Law, s 139E). Complaint 1 1. Complaint 1 consisted of seven particulars of which three contained several sub-particulars. Mr Gaberman denied most of the conduct particularised in Complaint 1. 2. Of the conduct particularised in Complaint 1 which was denied by Mr Gaberman – Particulars 2, 3, 4, 5(a), 7 and 9 – the Tribunal found proven sub-particular 2(a) and part of Particular 7. 3. Of the admitted conduct, Mr Gaberman conceded, and the Tribunal concluded, that Particulars 5(b)-(e), 6 and 8 amounted to unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law. In addition, the Tribunal concluded that the part of Particular 7 it found proven amounted to unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law. 4. Mr Gaberman denied that the conduct which he admitted amounted to unsatisfactory professional conduct within the meaning of s 139B(1)(a) also amounted to unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law. The Tribunal concluded that it was not necessary to decide whether conduct found to constitute unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law could also be found to constitute unsatisfactory professional conduct within the meaning of s 139B(1)(l): Decision at [75]-[79]. Complaint 2 1. Complaint 2 consisted of three particulars. Mr Gaberman admitted each particular. He conceded, and the Tribunal concluded, that this conduct amounted to unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law. 2. Mr Gaberman disputed that the admitted conduct amounted to unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law. Adopting the reasoning applied in relation to Complaint 1, the Tribunal decided it was not necessary to address that issue: Decision at [115]. Complaints 3 and 4 1. Mr Gaberman denied Complaints 3 and 4. The Tribunal found each complaint not proven. Power to award costs 1. The Tribunal's power to award costs is contained in cl 13, Sch 5D of the National Law: 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. … (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. 1. In exercising the power conferred by the National Law to award costs, the "usual rule" is that "costs follow the event", that is, the successful party is generally entitled to receive their costs from the unsuccessful party: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. 2. The presumption that the successful party is entitled to receive their costs will generally be displaced only where there has been some "disentitling conduct" by that party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]. It is for the losing party to establish a basis for any departure from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]. 3. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 (Lucire), the Court of Appeal considered the question of whether the subject practitioner, Dr Lucire, should be required to pay all of the Commission's costs. The power to award costs in Lucire was contained in the Medical Practice Act 1992 (NSW) which was substantially in the same terms as the corresponding provision in the National Law. The Commission was successful in obtaining findings against Dr Lucire in respect of unsatisfactory professional conduct, but not professional misconduct. In addition, the Commission failed to establish each of the particulars pleaded. 4. In the leading judgment, Basten JA (McColl JA and Sackville AJA, agreeing) at [49]-[53] identified three factors which militated against the Commission recovering all its costs in that matter: 49. [F]irst, the Commission was successful in obtaining findings against the practitioner in respect of unsatisfactory professional conduct, but not professional misconduct. 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. 50. Secondly, the Commission failed to establish each of the particulars pleaded. This aspect is not to be assessed by a numerical calculation of the number of paragraphs of the particulars which were upheld and the number which were rejected. Nor would failure to establish some particulars necessarily result in any diminution in the costs payable to the Commission. However, where it can be said that discrete elements of the conduct complained of were not established, it may be appropriate to reduce the costs to be recovered by the Commission. 51. In the principal judgment, certain criticisms were made of the manner in which the complaint had been pleaded: [39]-[45]. Similar comments had been made, as noted at [43] of the principal judgment, well before the present complaint was prepared. The Commission cannot complain that it was not on notice of the need to revise its practices in this respect. These considerations militate in favour of there being some reduction in the costs recovered by the Commission, to allow for aspects of the complaints as to which it was unsuccessful. Again, no precise evaluation is possible. 52. Thirdly, the practitioner alleged that there had been oppressive conduct on the part of the Commission in the Tribunal. This was a matter addressed in part in the principal judgment, the practitioner having complained of procedural unfairness in the conduct of the hearing: at [113]-[122]. Otherwise, the practitioner seeks to rely upon an affidavit of her solicitor setting out certain procedural steps taken in the course of preparation for the proceedings, which were said to give rise to unnecessary expense for the practitioner in preparing for the hearing. It is impossible for this Court to assess the claims and counter-claims of the parties in this respect: without suggesting that proceedings before the Tribunal should be unduly interrupted by interlocutory applications, any realistic attempt to impose a costs penalty on the Commission should have been undertaken contemporaneously with the conduct complained of. 1. In Philipiah the Court of Appeal (Emmett JA, Meagher JA and Beech-Jones J agreeing) endorsed the statement made by the Court of Appeal in Lucire that factors that might militate against the recovery by the Commission of all of its costs in particular proceedings included that the Commission was only partly successful in prosecuting the complaint: at [42]. Commission's submissions 1. The Commission contends that its proposal that Mr Gaberman bear 70% of its costs is "strong" because: 1. the Occupational Division of NCAT in which the Complaint was prosecuted is a costs jurisdiction. 2. it did not engage in any disentitling conduct and in the absence of such conduct, ordinarily costs "follow the event". 3. at Mr Gaberman's request it agreed that Stage 1 and Stage 2 of the proceedings be heard together. 4. it was successful in establishing that Mr Gaberman had engaged in unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law. 5. while the Tribunal failed to find that Mr Gaberman had engaged in professional misconduct, nonetheless the Tribunal found the conduct the subject of Particular 5, Complaint 1 "came close to the line" (Decision at [140]) and the conduct the subject of Complaint 2 to be "undoubtedly serious" (Decision at [141]). 6. the Tribunal made orders to reprimand Mr Gaberman and to subject his registration to conditions. 7. while Mr Gaberman successfully defended most of the matters in dispute between the parties, that does not amount to "any dereliction of commission in its duty to the Tribunal". Nor does it support a reduction in the Commission's costs given its "overall success in the proceedings": Health Care Complaints Commission v Litchfield (No 3) (Costs) [2023] NSWCATOD 44 (Litchfield) at [35]. 1. Finally, citing Litchfield, the Commission contends that the approach to the calculation of costs that Mr Gaberman urges the Tribunal to adopt requires the Tribunal to undertake a "minute dissection" of the success or failure of discrete parts of the Complaint and is discouraged by the authorities. In Litchfield, after reviewing the authorities which have dealt with the issue of the proportion of costs that should be borne by a party who enjoyed partial success in proceedings, Coleman DCJ said at [35]: [T]he authorities to which both parties referred make clear that a minute dissection of success or failure with respect to particular issues requiring determination in the proceedings is discouraged when proportional costs orders are sought. Although not unfettered, and to be exercised judicially, the discretion of the Tribunal with respect to costs is broad, and, ultimately, informed by the justice of the case. Mr Gaberman's submissions 1. Mr Gaberman submits that he should be required to pay to the Commission $3200 ($400 x 8 hours) being for the costs incurred by the Commission in: 1. drafting the admitted part of the Complaint, and 2. Stage 2 of the hearing (which dealt with the question of whether protective orders should be made, and, if so the form of orders). 1. Mr Gaberman disputes the Commission's claim that it had enjoyed "overall success in the proceedings". He contends that he was the "predominately successful party" and in support provides a detailed analysis of the Decision. He contends that the Commission's failure to obtain any findings of unsatisfactory professional conduct beyond that to which he admitted, militates against an award of costs. 2. Pointing to the "key issues in the proceedings" identified by the Tribunal in the Reasons at [10], Mr Gaberman contends that he was the successful party in all but one of those issues, that is, Particular 7 (in part) of Complaint 1. Of particular significance, argues Mr Gaberman, is the Commission's failure to establish that the conduct to which he admitted (the admitted conduct) amounted to unsatisfactory professional conduct or professional misconduct within the meaning of s 139B(1)(l) and s 139E of the National Law, respectively. 3. Mr Gaberman contends that his actions in making significant admissions before the hearing, pursuant to s 149(b) of the National Law, shortened the length of the hearing. In addition, he contends that as a consequence of making those admissions, the only questions the Tribunal was required to decide was whether to make protective orders, and, if they were made, the form of orders. It follows, he argues, that with respect to the hearing, he should only be required to bear the costs incurred by the Commission in Stage 2. 4. Finally, Mr Gaberman contends that at the conclusion of the evidence, the Commission ought to have made concessions about the conduct which he denied (the denied conduct) including the complaint of professional misconduct. He submits that the Commission's failure to do so amounted to oppressive conduct and is a further factor which militates against an award of costs. 5. In reply, the Commission disputes Mr Gaberman's claim that it engaged in oppressive conduct by failing to make concessions at the conclusion of the evidence. Citing Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197, the Commission contends that oppressive conduct in the sense of conduct that is oppressive, vexatious or an abuse of process, means conduct that is seriously burdensome, prejudicial or damaging. The Commission argues that its conduct in leaving to the Tribunal to decide whether the denied conduct is proven could not be characterised as oppressive. Consideration 1. The proportion of the Commission's costs which Mr Gaberman should be required to pay turns on two key issues: 1. whether, as asserted by Mr Gaberman, the Commission engaged in disentitling conduct, and 2. what proportion of the Commission's costs Mr Gaberman should be required to pay because of the Commission's failure to establish the whole of the Complaint. Did the Commission engage in disentitling conduct? 1. I reject the contention that the Commission engaged in oppressive conduct by failing to withdraw those parts of the Complaint ultimately found not proven by the Tribunal at the close of evidence. 2. This was not a case where there was no evidence to support the disputed conduct. For example, by Particular 3 of Complaint 1 the Commission alleged that in September 2019 Mr Gaberman had used Cognitive Behavioural Therapy with Patient A. While there was no direct evidence to support that allegation, there was indirect evidence which supported that inference being drawn. This included the evidence given by two of Mr Gaberman's colleagues, together with clinical notes made by Mr Gaberman which referred to the use of Cognitive Behavioural Therapy with Patient A: Decision at [47]-[56]. If, as suggested by Mr Gaberman, the Commission's failure to withdraw Particular 3 of Complaint 1 in circumstances where there was conflicting evidence constitutes oppressive conduct, I cannot agree. 3. Nor can it be said that the complaint of professional misconduct was hopeless, misconceived, or not reasonably raised. That complaint required the Tribunal to form an evaluative judgement about whether the conduct admitted to as unsatisfactory professional conduct was "sufficiently serious" to justify an order for suspension or cancellation" of Mr Gaberman's registration: see, Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]. While the Tribunal found that the conduct was not sufficiently serious to justify such an order, the Tribunal nonetheless accepted that that conduct was serious, as the Commission points out. What proportion of the Commission's costs should Mr Gaberman be required to bear? 1. As conceded by the Commission, its failure to establish discrete elements of the Complaint militates against an order that Mr Gaberman pay all of its costs. In determining the proportion of costs that should be borne by Mr Gaberman, "a minute dissection of the success or failure of particular issues" in the Complaint is to be avoided. 2. Nevertheless, the costs proposal advanced by the Commission fails to adequately acknowledge its failure to establish discrete and separable parts of the Complaint, namely, most of Complaint 1 and all of Complaint 3. Mr Gaberman's success in relation to those parts of the Complaint could not be described as a pyrrhic victory. It was relevant to the questions of whether, in aggregate, his conduct was of a sufficiently serious nature to justify the suspension or cancellation of his registration (Complaint 4); whether the discretion to make protective orders should be exercised; and, if so, the form of orders to be made. 3. On the other hand, the proposal advanced by Mr Gaberman fails to recognise that, but for his conduct, the prosecution of the Complaint would have been unnecessary. In addition, it appears to rest on the premise that the significant admissions he made rendered Stage 1 of the proceedings redundant. It was appropriate that the Commission test the account of the admitted conduct given by Mr Gaberman. The determination of whether the complaint of professional misconduct was established and whether the discretion to make protective orders should be exercised and, if so, the form of orders, required the Tribunal to evaluate the nature and seriousness of the admitted conduct. In my view, that task could not be undertaken in a manner which complied with the obligation to give paramount consideration to the protection of the health and safety of the public (National Law, s 3A) based solely on the material filed by the parties. 4. In addition, the proposal advanced by Mr Gaberman seeks a significant reduction in costs for the Commission's failure to establish the complaint of professional conduct. A relatively small proportion of hearing time was devoted to argument about that complaint. The Commission's failure to establish that complaint does not warrant a material reduction in the costs payable by Mr Gaberman. 5. In my view, it is appropriate that Mr Gaberman pay a proportion of the Commission's costs, largely because of the Commission's failure to establish discrete parts of the Complaint. Where, as in this case, there is a mixed outcome in proceedings, the task of apportioning costs is difficult. That task is "very much a matter of discretion and mathematical precision is illusory" and "depends upon matters of impression and evaluation": Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98 at [14]; Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 at [11]. My impression is that about half of the Commission's costs related to Complaint 3 and those parts of Complaint 1 it failed to establish. In those circumstances, it is fair and appropriate that Mr Gaberman pay half of the Commission's costs. 6. Each party is to bear their own costs in relation to the Commission's costs application. Orders 1. Mr Gaberman is to pay 50% of the Commission's costs as agreed or assessed. 2. Each party is to pay their own costs in relation to the Commission's costs application. ********** 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: 04 December 2023