Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gazal [2024] NSWCATOD 18 Hearing dates: On the papers Date of orders: 12 February 2024 Decision date: 12 February 2024 Jurisdiction: Occupational Division Before: Coleman SC ADCJ Decision: 1. That pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing is dispensed with. 2. That the Respondent pay 80% of the Applicant's costs of the proceedings as agreed or assessed on a party and party basis. Catchwords: COSTS- whether proportional order for costs of proceedings appropriate Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law 2009 (NSW) Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Health Care Complaints Commission v Ake [2018] NSWSC 1170 Health Care Complaints Commission v Gautam [2021] NSWCA 85 Health Care Complaints Commission v Lichfield (No 3) (Costs) [2023] NSWCATOD 44 Health Care Complaints Commission v Dr McCroary [2019] NSWCATOD 115 Health Care Complaints Commission v Mortlock [2015] NSWCATOD 136 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Reyes (No 2) (Costs) [2023 NSWCATOD 94 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Sabah Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 Category: Costs Parties: Health Care Complaints Commission (Applicant) Lindsay Joseph Michael Gazal (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth (Respondent) File Number(s): 2022/00329178 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On 26 June 2023 the Tribunal found the Respondent guilty of unsatisfactory professional conduct and professional misconduct and reprimanded him pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW) (2009) (National Law). The Tribunal then reserved the costs of the proceedings. 2. By its submissions dated 24 July 2023 the Applicant (Commission) sought an order that the Respondent (Practitioner) pay its costs of the proceedings as agreed or assessed on a party and party basis. By the submissions of his Counsel dated 21 August 2023 the Practitioner sought that he be ordered to pay 70% of the Commission's costs as agreed or assessed on a party and party basis. Jurisdiction 1. Clause 13 of Schedule 5D of the National Law invests the Tribunal with power to award costs. Section 165B of the National Law is concerned with the "constitution of Tribunals for complaints, applications and appeals". Section 165B(5A) provides that, when constituted to make an "ancillary decision or an interlocutory decision" within the meaning of the Civil and Administrative Tribunal Act 2013 (CAT Act), the Tribunal is to be constituted by the Tribunal List Manager or, relevantly for present purposes, a member who, pursuant to s 165B(2)(a) is a "senior judicial offer"". Section 165(b) of the National Law defines "senior judicial officer" to include a judge of the District Court. Section 4(1)(b) of the CAT Act provides that "a decision concerning the awarding of costs" is an ancillary decision. The Tribunal is satisfied that, as presently constituted, it has jurisdiction to determine the Applicant's costs application. Dispensing with a hearing 1. Both parties invited the Tribunal to determine the Commission's costs application "on the papers" and without a hearing. The Tribunal is comfortably satisfied that doing so is appropriate having regard to the fact that the parties have been afforded the opportunity to be heard in opposition to that course, and that the comprehensive submissions filed on behalf of each of them amply enable the Tribunal to determine the disputed costs issue which, as the parties' positions make clear, is within a relatively narrow compass in any event. In those circumstances, conducting a hearing would unhelpfully increase both parties' costs. The submissions of the Commission 1. The Commission acknowledged ([2]-[3]) that it successfully prosecuted three of the four complaints which it brought against the Practitioner. The Commission submitted that the limited admissions made by the Practitioner meant that it had to establish the Practitioner's guilty to the comfortable satisfaction of the Tribunal. It was further submitted that, to the extent that the Commission failed to establish the guilt of the Practitioner pursuant to one of its complaints, that had "no bearing" on the Tribunal's findings of unsatisfactory conduct or professional misconduct and "occupied a relatively small part of the parties' evidence and submissions". It was thus submitted that the Commission had "overall success" at the Stage 1 phase of the hearing. The Stage 1 phase of the hearing was concerned with whether the Commission had established unsatisfactory professional conduct and/or professional misconduct pursuant to its four complaints against the Practitioner. 2. It was submitted ([4]) with respect to the Stage 2 phase of the proceedings, which was concerned with the determination of the protective orders which were appropriate in the circumstances, that, although the Commission "obtained an order for a reprimand but not the conditions it sought, that outcome ought not be viewed as constituting a success" for the Practitioner. The Commission accordingly submitted ([5]) that it "enjoyed overall success in the matter" and that the Tribunal should apply the "ordinary rule that costs follow the event". The "ordinary rule" emerges from the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342, in which it was accepted that, subject to the exceptions to which the Court referred, on which the Practitioner relied, costs normally follow the event. 3. It was submitted that there had been no disentitling conduct by the Commission to displace the ordinary rule. Although the Practitioner resisted the Commission's claim to some extent, properly, it was not suggested that there had been disentitling conduct by the Commission. Disentitling conduct assumes no significance in the determination of the current dispute- Counsel for both parties conducted the proceedings with commendable courtesy and efficiency. 4. The Commission referred to the determination of each of the four complaints which it made against the Practitioner ([7]-[11]). The Commission submitted ([10]) that the complaint in respect of which it had been unsuccessful, which related to inappropriate prescription of drugs for family members of the Practitioner, "had no bearing on the finding of professional misconduct". 5. With respect to Stage 2 of the proceedings, the Commission submitted ([12]) that, in its application the Commission had sought cancellation of the Respondent's registration, noting that it "may seek alternative protective orders under, among others, s 149A". The Commission submitted, accurately, that after the Practitioner's evidence in cross-examination, the Commission sought a reprimand together with conditions, instead of cancellation of the Practitioner's registration. 6. The Commission submitted ([15]) that the Tribunal "generally should not attempt to differentiate between the issues on which a party was successful and those on which it failed". It was further submitted that "unless a particular issue or group of issues is clearly dominant or separate, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it had failed" (Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304; Elite Protective Personnel Pty Limited v Salmon (No. 2) [2007] NSWCA 373). 7. The Commission submitted ([16]), correctly, that whether a party has been successful in the overall outcome requires an evaluative assessment and that the Tribunal was "required to make a fair estimation of the Commission's success on the allegations it made" (Health Care Complaints Commission v Ake [2018] NSWSC 1170). The Commission referred ([17]) to the decision of the Tribunal in Health Care Complaints Commission v Litchfield (No. 3) (Costs) [2023] NSWCATOD 44 in which it was accepted that the concept of "overall success" in protective proceedings was "somewhat different to that in private litigation which does not have the public interest aspect" which proceedings of the present kind pursuant to the National Law have. The Commission particularly relied upon its success with respect to costs in Litchfield notwithstanding that it unsuccessfully sought the cancellation of the Practitioner's registration. 8. The Commission further submitted ([18]) that the "fundamental feature" of the outcome of proceedings of the present kind was that the applicant had to "run its case in order to satisfy the Tribunal" that the Practitioner was guilty of professional misconduct and thereby secure the relevant protective order. It was properly conceded ([19]) by the Commission that the Tribunal may permissibly exercise its discretion to make a partial costs order, particularly where the matters upon which that party was unsuccessful took up a significant part of the hearing, either by way of evidence or argument (Sabah Yazgi v Permanent Custodians Ltd (No. 2) [2007] NSWCA 306). It was submitted however that where, as in the present proceedings, there was a "significant overlap of evidence and submissions on an issue, the Tribunal has not taken that issue into account in reducing costs to which the Commission is entitled" (Health Care Complaints Commission v Dr McCroary [2019] NSWCATOD 115). 9. The Tribunal accepts that the principles governing the present dispute are as submitted on behalf of the Commission. The authorities upon which the Commission relied, almost without exception, were those upon which the Respondent also relied. 10. The Commission referred to a number of matters which were submitted to justify granting the relief sought by it. The first of those ([21]) was that, while the Practitioner made some appropriate admissions in reply, he did not admit all of the complaint, such that the need for an inquiry could be dispensed with. Nor, unlike in cases such as Health Care Complaints Commission v Mortlock [2015] NSWCATOD 136 did he propose alternate orders. It was thus submitted to have been "necessary for the Commission to run its case in order to secure a relevant protective order in the public interest". Although the latter contention has merit, the Tribunal does not criticise the Practitioner for failing to propose protective orders sooner than he did. 11. The second matter relied upon by the Commission ([23]-[25]) was that, as asserted earlier, it achieved overall success at the Stage 1 phase of the proceedings and, to the extent that it failed to make out any of its complaints, that ultimately "had no bearing on the finding of professional misconduct" and added little or not time or expense to the proceedings. 12. With respect to the Stage 2 outcome, the Commission submitted, correctly in the Tribunal's view, that it had adopted a "proper course of changing the orders sought to a reprimand with conditions" after cross-examination of the Practitioner. Prior to the cross-examination of the Practitioner, the Commission could not properly have adopted the benign view it ultimately did with respect to protective orders. Doing so in the light of the cross-examination of the Practitioner, and presumably its anticipation of the nature of the Tribunal's findings with respect to the Practitioner's evidence, the Commission acted with propriety. It ought not be disadvantaged for having done so. In those circumstances the Commission submitted that it ought be awarded its costs. 13. The Commission summarised, accurately, the principles governing the present dispute. The Commission reiterated ([27]) that the outcome at the Stage 2 phase should not be viewed as constituting success for the Practitioner. The submissions of the Practitioner 1. After outlining matters of "background", the Practitioner submitted ([7]) that the matters which the Tribunal found proven at Stage 1 were the same matters which the Practitioner had admitted, and that the complaint which the Practitioner had not admitted was not made out by the Commission. It was submitted that cross-examination of the Commission's expert witness, Dr Kertesz, "occupying hearing time" was "essentially" referable to that complaint. 2. It was further submitted ([8]) that the complaint with respect to which the Commission was unsuccessful "arose from general admissions made by Dr Gazal during the initial s 150 hearing" but was "not otherwise supplemented" by evidence adduced on behalf of the Commission. 3. It was submitted ([9]) that the remaining matters about which the Practitioner was cross-examined were all matters which he had "admitted and expressed deep regret about from the outset", including at the s 150 hearing, and that all the matters upon which the Practitioner relied at the hearing had been served "well before the hearing proper commenced". 4. After referring ([10]-[11]) to the weight given to the Practitioner's frank admissions and the evidence of witnesses on which he relied at the Stage 2 phase of the proceedings, it was submitted ([12]) "bluntly" and, properly, without criticism of Counsel for the Commission's conduct of the case, that nothing in the Practitioner's case at hearing was "altered from the position he had adopted and the substantial evidence in support that he had presented to the Applicant well prior to the hearing's commencement". It was thus submitted ([13]) that, for the reasons there advanced, it "could not be said that establishing complaint 3 would have materially changed the landscape in terms of protective orders". The Tribunal does not criticise either party with respect to the prosecution of or resistance to complaint 3. The Tribunal's findings with respect to it confirm that both parties acted reasonably. 5. By way of response to the Commission's submissions, the Practitioner submitted ([17]) that it was essentially unclear why the Commission submitted that the Practitioner "could have avoided the cost of a hearing if he had not put aspects of the complaint in issue". The Practitioner, correctly, ([18]) cautioned the Tribunal to avoid the kind of "erroneous reasoning" which was referred to in Health Care Complaints Commission v Gautam [2021] NSWCA 85 with respect to inferring that defence of a complaint necessarily implied a lack of insight or contrition. 6. The Practitioner submitted ([19]) that "to be clear, the Respondent was not only entitled to defend those aspects of the complaint which were not proven, but he was also not obliged to admit them, for the sake solely of avoiding further potential legal costs. That should not count against him on the question of how costs are ultimately apportioned." The Tribunal agrees with that contention. 7. With respect to whether the Commission had secured a "successful outcome", it was submitted that, for various reasons, the Commission had not secured such an outcome. Those reasons included: 1. The Commission had initially sought cancellation, but, in response to the same evidence, ultimately sought a reprimand and conditions; 2. The Commission did not succeed in establishing the disputed aspects of the case; 3. The Commission was not unnecessarily put to proof of matters; 4. It could not be said that the Commission succeeded in establishing matters in dispute between the parties including all matters alleged to constitute professional misconduct; 5. It could not be said that the Practitioner demonstrated a lack of insight and contrition in putting any matters in dispute (or, for that matter demonstrating any lack of contrition or insight); and, 6. It could not be said that cross-examination of the Practitioner materially assisted the Commission's case in any respect or led to the disclosure of evidence not already generally known between the parties. 1. It was submitted ([21]) that the "very late decision by the Applicant to fundamentally alter its position in relation to protective orders, in circumstances where it was abundantly obvious at the start of the hearing that cancellation was not appropriate, led to unnecessary costs in preparing written submissions seeking to meet cancellation and/or some other protective order greater than a reprimand". 2. For the reasons submitted by the Practitioner ([22]) it was submitted that reliance upon the costs decision in Litchfield was unsound, primarily by reason of the factual differences between that and the present case. 3. The Practitioner made a number of submissions ([23]) with respect to any "bargaining" with respect to outcomes prior to the commencement of proceedings. 4. Albeit by reference to different authority (Lucire v Health Care Complaints Commission (No. 2) [2011] NSWCA 182) the Practitioner submitted ([24]) that there were discrete elements of the conduct complained of by the Commission which were not established and that it was accordingly appropriate to reduce the costs to be recovered by the Commission. The Practitioner relied ([25]) on the decision in Health Care Complaints Commission v Reyes (No. 2) (Costs) [2023] NSWCATOD 94. The Practitioner relied on the statement in Sabah Yazgi referred to earlier that proportional costs orders may be appropriate where the matters upon which a party was unsuccessful took up a significant part of the hearing, either by way of evidence or argument. Consideration 1. As the submissions of the parties recognise, the determination of their dispute involves the exercise of a broad, but not unfettered discretion, which must not be exercised arbitrarily. Objectively, in relation to the Stage 1 phase of the proceedings, and with respect to how the case was conducted by Counsel for both parties, the fact that the Commission was unsuccessful with respect to one of its four complaints is not necessarily reflective of the course which the proceedings took. The Practitioner made appropriate factual admissions but, not unreasonably, did not admit that the factual allegations which he admitted supported the finding of professional misconduct which the Commission sought. In those circumstances the Commission was obliged to prove its case to the comfortable satisfaction of the Tribunal. The Commission sought a finding of professional misconduct. Professional misconduct was found to have been established. In those circumstances, the Commission secured overall success in the Stage 1 part of the proceedings. 2. It is correct to submit, as the Commission has, that its failure with respect to complaint 3 did not detract from its overall success. Other than by a process of artificial and minute dissection, which the authorities discourage, the Tribunal cannot accept that the Commission's unsuccessful prosecution of complaint 3 involved the hearing time being protracted, or other significant or identifiable expense. 3. The Tribunal accepts that there are significant factual differences between the facts in Litchfield and the facts in the present proceedings. The general statement however to which the Commission referred is considered to have relevance. In the discharge of its obligations pursuant to the National Law, the Commission cannot readily, in the absence of a plea of guilty to a complaint, or it becoming apparent that its success was problematic, compromise such a complaint, or do so without having, as it did in this case, tested the evidence of the Practitioner. Cross-examination may render convincing written evidence quite unconvincing, or unable to be accepted as truthful. The Commission did not act unreasonably by unquestioningly accepting the Practitioner's written evidence. 4. To the extent that, contrary to the Tribunal's findings, the Commission's failure to establish complaint 3 occupied a significant identifiable part of the proceedings, even if it had, the Commission's overall success, and its role pursuant to the National Law, as discussed in Litchfield, would disincline the Tribunal to discount the costs to which it was properly entitled on that basis. 5. Different considerations apply with respect to the Stage 2 phase of the proceedings. It was entirely proper in the Tribunal's view both for the Commission to seek less draconian protective orders against the Practitioner after hearing his cross-examination, and to have not done so prior to that occurring. Unless and until a practitioner is cross-examined, notwithstanding what might be articulated in written statements made by the practitioner, the Commission, and the Tribunal, cannot properly evaluate the extent to which professed insight and/or contrition are real or genuine. Had the Commission not, having heard the cross-examination of the Practitioner, sought the relief which it ultimately did, and had earlier foreshadowed, that may well have provided a cogent reason for discounting the costs which are to be awarded to the Commission. 6. It is correct to submit that the Practitioner was successful in a material respect at the Stage 2 phase of the proceedings. The imposition of conditions on the Practitioner's registration, having regard to his prior unblemished record, seniority in the profession and the unchallenged evidence with respect to his character and competence, could have had a substantial impact on the Practitioner personally and professionally, given that the conditions would be known in the professional generally and to the Practitioner's patients. The Tribunal does not criticise the Commission for seeking the conditions. The failure to secure them however was, given that it was ultimately, and sensibly, agreed that a reprimand was appropriate, a not insignificant absence of success on the part of the Commission and success by the Practitioner. 7. It is true that, as with the Stage 1 phase of the proceedings, identifying with any precision how much of the proceedings were concerned with the issue of conditions is difficult and artificial. In the circumstances referred to above, to fail to discount to any extent the costs to which the Commission is entitled would, having regard to the failure to secure the imposition of any conditions on the Practitioner's registration, fail to recognise a separate and discrete issue of substance in respect of which the Practitioner was successful. Accepting that doing so is necessarily arbitrary, the Tribunal concludes that awarding the Commission 80% of its costs as agreed or assessed on a party and party basis is the order which would best reflect the justice of the case. The 20% discount is referable to the outcome of Stage 2 of the proceedings in the light of the matters considered above in that context. Orders 1. That pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing is dispensed with. 2. That the Respondent pay 80% of the Applicant's costs of the proceedings as agreed or assessed on a party and party basis. ********** 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: 12 February 2024